Table of Contents

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

 

FORM 20-F

 

      ¨ REGISTRATION STATEMENT PURSUANT TO SECTION 12(b) OR (g) OF THE SECURITIES EXCHANGE ACT OF 1934

OR

 

      x ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the fiscal year ended December 31, 2015

OR

 

      ¨ TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the transition period from                    to                    

OR

 

      ¨ SHELL COMPANY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

Date of event requiring this shell company report                     

For the transition period from                     to                     

Commission file number 033-51000

VIDEOTRON LTD. / VIDÉOTRON LTÉE

(Exact name of Registrant as specified in its charter)

Province of Québec, Canada

(Jurisdiction of incorporation or organization)

612 St. Jacques Street

Montréal, Québec, Canada H3C 4M8

(Address of principal executive offices)

Securities registered or to be registered pursuant to Section 12(b) of the Act.

 

Title of each class        

Name of each exchange on which registered

None       None

Securities registered or to be registered pursuant to Section 12(g) of the Act.

None

(Title of Class)

Securities for which there is a reporting obligation pursuant to Section 15(d) of the Act.

5% Senior Notes due July 15, 2022

(Title of Class)

Indicate the number of outstanding shares of each of the issuer’s classes of capital or common stock as of the close of the period covered by the annual report.

172,516,829 Class “A” Common Shares

Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act.    ¨ Yes   x No

If this report is an annual or transition report, indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934.   ¨ Yes   x No

Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.   x Yes   ¨ No

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, or a non-accelerated filer. See definition of “accelerated filer and large accelerated filer” in Rule 12b-2 of the Exchange Act. (Check one):

Large accelerated filer   ¨                  Accelerated filer   ¨                  Non-accelerated filer   x

Indicate by check mark which basis of accounting the registrant has used to prepare the financial statements included in this filing:

 

U.S. GAAP   ¨

  

International Financial Reporting Standards as issued

by the International Accounting Standards Board   x

     Other   ¨  
     

If “Other” has been checked in response to the previous question, indicate by check mark which financial statement item the registrant has elected to follow.    ¨ Item 17   ¨ Item 18

If this is an annual report, indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).    ¨ Yes   x No

 

 

 


Table of Contents

TABLE OF CONTENTS

 

     Page  

Explanatory Notes

     ii   

Industry and Market Data

     ii   

Presentation of Financial Information

     ii   

Exchange Rate Information

     iii   

Cautionary Statement Regarding Forward-Looking Statements

     iv   

ITEM 1 – Identity of Directors, Senior Management and Advisers

     1   

ITEM 2 – Offer Statistics and Expected Timetable

     1   

ITEM 3 – Key Information

     1   

ITEM 4 – Information on the Corporation

     21   

ITEM 4A – Unresolved Staff Comments

     41   

ITEM 5 – Operating and Financial Review and Prospects

     42   

ITEM 6 – Directors, Senior Management and Employees

     73   

ITEM 7 – Major Shareholders and Related Party Transactions

     80   

ITEM 8 – Financial Information

     81   

ITEM 9 – The Offer and Listing

     82   

ITEM 10 – Additional Information

     83   

ITEM 11 – Quantitative and Qualitative Disclosures About Market Risk

     104   

ITEM 12 – Description of Securities Other Than Equity Securities

     105   

ITEM 13 – Defaults, Dividend Arrearages and Delinquencies

     105   

ITEM 14 – Material Modifications to the Rights of Security Holders and Use of Proceeds

     106   

ITEM 15 – Controls and Procedures

     106   

ITEM 16 – [Reserved]

     107   

ITEM 16A – Audit Committee Financial Expert

     107   

ITEM 16B – Code of Ethics

     107   

ITEM 16C – Principal Accountant Fees And Services

     107   

ITEM 16D – Exemptions from the Listing Standards for Audit Committees

     107   

ITEM 16E – Purchases of Equity Securities by the Issuer and Affiliated Purchasers

     107   

ITEM 16F – Changes in Registrant’s Certifying Accountant

     107   

ITEM 16G – Corporate Governance

     107   

ITEM 17 – Financial Statements

     108   

ITEM 18 – Financial Statements

     108   

ITEM 19 – Exhibits

     108   

Signature

     113   

Index to Consolidated Financial Statements

     F-1   

 

 


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EXPLANATORY NOTES

All references in this annual report to “Videotron” or “our Corporation”, as well as the use of the terms “we”, “us”, “our” or similar terms, are references to Videotron Ltd. and, unless the context otherwise requires, its consolidated subsidiaries. All references in this annual report to “Quebecor Media” are to our parent corporation Quebecor Media Inc., all references to “TVA Group” are to TVA Group Inc., a public subsidiary of Quebecor Media, and all references to “Quebecor” are to Quebecor Inc., the majority shareholder of Quebecor Media.

In this annual report, all references to the “CRTC” are references to the Canadian Radio-television and Telecommunications Commission.

All references in this annual report to our “Senior Notes” are to, collectively, our issued and outstanding 6  7 / 8 % Senior Notes due July 15, 2021, our 5% Senior Notes due July 15, 2022, our 5  3 / 8 % Senior Notes due June 15, 2024, our 5  5 / 8 % Senior Notes due June 15, 2025 and our 5  3 / 4 % Senior Notes due January  15, 2026.

INDUSTRY AND MARKET DATA

Industry statistics and market data used throughout this annual report were obtained from internal surveys, market research, publicly available information and industry publications, including the CRTC and Numeris. Industry publications generally state that the information they contain has been obtained from sources believed to be reliable, but that the accuracy and completeness of this information is not guaranteed. Cable penetration and market share data contained in this annual report is generally based on sources published in the first quarter of 2016. Industry and company data is approximate and may reflect rounding in certain cases.

Information contained in this annual report concerning the telecommunication industry, our general expectations concerning this industry and our market positions and market shares may also be based on estimates and assumptions made by us based on our knowledge of the industry and which we believe to be reliable. We believe, however, that this data is inherently imprecise, although generally indicative of relative market positions and market shares.

PRESENTATION OF FINANCIAL INFORMATION

IFRS and Functional Currency

Our audited consolidated financial statements for the years ended December 31, 2015, 2014, 2013, 2012 and 2011 have been prepared in accordance with International Financial Reporting Standards (“ IFRS ”) as issued by the International Accounting Standards Board.

In this annual report, references to Canadian Dollars, CAN$ or $ are to the lawful currency of Canada, our functional currency, and references to US Dollars or US$ are to the currency of the United States.

Non-IFRS Measures

In this annual report, we use certain non-IFRS financial measures, including adjusted operating income, adjusted operating income margin and long-term debt, excluding QMI subordinated loans. These financial measures are not calculated in accordance with, or recognized by, IFRS. Our method of calculating these financial measures may differ from the methods used by other companies and, as a result, the non-IFRS financial measures presented in this annual report may not be comparable to other similarly titled measures disclosed by other companies.

We provide a definition of adjusted operating income, adjusted operating income margin and average monthly revenue per user (“ ARPU ”) under “Item 5. Operating and Financial Review and Prospects – Non-IFRS Financial Measures” and “Item 5. Operating and Financial Review and Prospects – Key Performance Indicator”. We also provide a definition of adjusted operating income, a reconciliation of adjusted operating income and a reconciliation of long-term debt, excluding QMI subordinated loans to the most directly comparable financial measures under IFRS in footnotes 4 and 5 to the tables under “Item 3. Key Information – A. Selected Financial Data”. We also provide a definition of ARPU in footnote 12 to the tables under “Item 3. Key Information – A. Selected Financial Data”.

 

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Unless otherwise indicated, information provided in this annual report, including all operating data presented, is as of December 31, 2015.

EXCHANGE RATE INFORMATION

The following table sets forth, for the periods indicated, the average, high, low and end of period noon rates published by the Bank of Canada. Such rates are presented as U.S. dollars per CAN$1.00. On March 17, 2016, the noon rate was CAN$1.00 equals US$0.7702. We do not make any representation that Canadian dollars could have been converted into U.S. dollars at the rates shown or at any other rate. You should note that the rates set forth below may differ from the actual rates used in our accounting processes and in the preparation of our consolidated financial statements.

 

Year Ended:

   Average (1)      High      Low      Period End  

December 31, 2015

     0.7820         0.8527         0.7148         0.7225   

December 31, 2014

     0.9054         0.9422         0.8589         0.8620   

December 31, 2013

     0.9710         1.0164         0.9348         0.9402   

December 31, 2012

     1.0004         1.0299         0.9599         1.0051   

December 31, 2011

     1.0111         1.0583         0.9430         0.9833   

 

Month Ended:

   Average (2)      High      Low      Period End  

March 2016 (through March 17, 2016)

     0.7509         0.7702         0.7425         0.7702   

February 29, 2016

     0.7248         0.7395         0.7123         0.7395   

January 31, 2016

     0.7031         0.7159         0.6854         0.7102   

December 31, 2015

     0.7297         0.7485         0.7148         0.7225   

November 30, 2015

     0.7530         0.7637         0.7485         0.7500   

October 31, 2015

     0.7650         0.7750         0.7552         0.7644   

September 30, 2015

     0.7538         0.7606         0.7455         0.7466   

 

(1) The average of the daily noon rates for each day during the applicable year.
(2) The average of the daily noon rates for each day during the applicable month.

 

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CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS

This annual report contains forward-looking statements with respect to our financial condition, results of operations, business and certain of our plans and objectives. These forward-looking statements are made pursuant to the “Safe Harbor” provisions of the United States Private Securities Litigation Reform Act of 1995. These forward-looking statements are based on current expectations, estimates, forecasts and projections about the industries in which we operate as well as beliefs and assumptions made by our management. Such statements include, in particular, statements about our plans, prospects, financial position and business strategies. Words such as “may,” “will,” “expect,” “continue,” “intend,” “estimate,” “anticipate,” “plan,” “foresee,” “believe” or “seek” or the negatives of these terms or variations of them or similar terminology are intended to identify such forward-looking statements. Although we believe that the expectations reflected in these forward-looking statements are reasonable, these statements, by their nature, involve risks and uncertainties and are not guarantees of future performance. Such statements are also subject to assumptions concerning, among other things: our anticipated business strategies; anticipated trends in our business; anticipated reorganizations of any of our segments or businesses, and any related restructuring provisions or impairment charges; and our ability to continue to control costs. We can give no assurance that these estimates and expectations will prove to have been correct. Actual outcomes and results may, and often do, differ from what is expressed, implied or projected in such forward-looking statements, and such differences may be material. Some important factors that could cause actual results to differ materially from those expressed in these forward-looking statements include, but are not limited to:

 

   

our ability to successfully continue developing our network and facilities-based mobile services;

 

   

general economic, financial or market conditions;

 

   

the intensity of competitive activity in the industries in which we operate;

 

   

new technologies that might change consumer behaviour towards our product suite;

 

   

unanticipated higher capital spending required to deploy our network or to address continued development of competitive alternative technologies, or the inability to obtain additional capital to continue the development of our business;

 

   

our ability to implement successfully our business and operating strategies and manage our growth and expansion;

 

   

disruptions to the network through which we provide our digital television, Internet access, telephony and over-the-top (“ OTT ”) video services, and our ability to protect such services from piracy, unauthorized access or other security breaches;

 

   

labour disputes or strikes;

 

   

changes in our ability to obtain services and equipment critical to our operations;

 

   

changes in laws and regulations, or in their interpretations, which could result, among other things, in the loss (or reduction in value) of our licenses or markets or in an increase in competition, compliance costs or capital expenditures;

 

   

our substantial indebtedness, the tightening of credit markets, and the restrictions on our business imposed by the terms of our debt; and

 

   

interest rate fluctuations that affect a portion of our interest payment requirements on long-term debt.

We caution you that the above list of cautionary statements is not exhaustive. These and other factors are discussed in further detail elsewhere in this annual report, including under “Item 3. Key Information – Risk Factors” of this annual report. Each of these forward-looking statements speaks only as of the date of this annual report. We disclaim any obligation to update these statements unless applicable securities laws require us to do so. We advise you to consult any documents we may file or furnish with the U.S. Securities and Exchange Commission (“ SEC ”), as described under “Item 10. Additional Information – Documents on Display” of this annual report.

 

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ITEM 1 – IDENTITY OF DIRECTORS, SENIOR MANAGEMENT AND ADVISERS

Not applicable.

ITEM 2 – OFFER STATISTICS AND EXPECTED TIMETABLE

Not applicable.

ITEM 3 – KEY INFORMATION

 

A- Selected Financial Data

The following tables present selected consolidated financial information for our business presented in accordance with IFRS for each of the years ended December 31, 2015, 2014, 2013, 2012 and 2011. We derived this selected consolidated financial information from our audited consolidated financial statements, which are comprised of consolidated balance sheets as at December 31, 2015, 2014, 2013, 2012 and 2011 and the related consolidated statements of income, comprehensive income, equity and cash flows for each of the years in the five-year period ended December 31, 2015. The selected consolidated financial information presented below should be read in conjunction with the information contained in “Item 5. Operating and Financial Review and Prospects” and our audited consolidated financial statements as at December 31, 2015 and 2014 and for the years ended December 31, 2015, 2014 and 2013 and notes thereto contained in “Item 18. Financial Statements” of this annual report (beginning on page F-1). Our audited consolidated financial statements as at December 31, 2013, 2012 and 2011 and for the years ended December 31, 2012 and 2011, are not included in this annual report. Our consolidated financial statements as at December 31, 2015, 2014, 2013, 2012 and 2011 and for the years ended December 31, 2015, 2014, 2013, 2012 and 2011, prepared in accordance with IFRS, have been audited by Ernst & Young LLP, an independent registered public accounting firm. Ernst & Young LLP’s report on our consolidated financial statements as at December 31, 2015 and 2014 and for the years ended December 31, 2015, 2014 and 2013 is included in this annual report.

The information presented below the caption “Other Financial Data and Ratios” is unaudited except for cash flows, capital expenditures and additions to spectrum licenses, which have been derived from our consolidated financial statements. The information presented below the caption “Operating Data” is not derived from our consolidated financial statements and is unaudited.

Our historical results are not necessarily indicative of our future financial condition or results of operations.

 

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SELECTED FINANCIAL DATA

 

     Year ended December 31,  
     2015     2014 (1)     2013 (1)     2012     2011  
     (dollars in thousands, except percentages, ratios and Operating Data)  

Consolidated Statement of Income Data:

  

Operating revenues:

          

Cable television

   $ 1,053,797      $ 1,074,821      $ 1,090,261      $ 1,079,343      $ 1,012,604   

Internet (1)

     920,746        856,051        814,682        772,497        698,234   

Cable telephony

     458,028        475,143        473,798        454,861        436,694   

Mobile telephony

     403,668        287,665        220,561        171,624        112,762   

Over-the-top video (1)

     23,596        12,213        3,718                 

Business solutions

     69,134        65,632        63,525        64,945        63,109   

Equipment sales

     57,627        45,627        36,524        43,412        55,953   

Other

     11,383        9,613        8,754        11,162        9,974   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total operating revenues

     2,997,979        2,826,765        2,711,823        2,597,844        2,389,330   

Employee costs

     356,503        342,399        347,097        338,591        294,472   

Purchase of goods and services

     1,259,179        1,136,055        1,079,919        1,055,549        1,021,270   

Depreciation and amortization

     625,366        601,381        561,743        485,385        407,011   

Financial expenses (2)

     167,429        169,177        174,145        179,498        161,211   

Loss (gain) on valuation and translation of financial instruments

     518        3,430        163,725        (75,738     (53,869

Loss (gain) on debt refinancing

     12,153        21,403        18,912        (7,608     (4,986

(Gain) loss on litigation, restructuring of operations and other items

     (129,737     39,445        684        478        15,094   

Income taxes expense

     120,665        93,283        29,449        115,855        105,067   

Income from discontinued operations

                   40,706        8,145        12,175   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Net income

   $ 585,903      $ 420,192     $ 376,855      $ 513,979      $ 456,235   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Consolidated Balance Sheet Data (at year end):

  

       

Cash and cash equivalents

   $ 1,774      $ 342,802      $ 322,469      $ 163,231      $ 94,093   

Total assets

     7,656,559        6,255,596        7,029,396        6,992,107        6,545,195   

Long-term debt, excluding QMI subordinated loans (3)(4)

     3,266,642        2,924,540        2,399,105        2,127,057        1,857,057   

QMI subordinated loans (3)(4)

     2,090,000        1,080,000        2,280,000        1,630,000        1,630,000   

Capital stock

     132,401        3,401        3,401        3,401        3,401   

Equity attributable to shareholder

     813,092        793,096        820,807        773,269        975,475   

Cash dividends declared

     665,000        410,000        361,880        760,000        140,000   

Other Financial Data and Ratios:

          

Adjusted operating income (5)

   $ 1,382,297      $ 1,348,311      $ 1,284,807      $ 1,203,704      $ 1,073,588   

Adjusted operating income margin (5)

     46.1     47.7     47.4     46.3     44.9

Cash flows provided by operating activities

     1,207,964        1,106,452        1,058,340        1,147,847        892,453   

Cash flows (used in) provided by investing activities

     (1,975,082     294,905        (1,174,875     (708,810     (823,222

Cash flows provided by (used in) financing activities

     426,090        (1,381,024     272,601        (380,674     (82,455

Capital expenditures (6)

     723,105        693,224        582,530        745,853        795,972   

Additions to spectrum licenses (6)

     219,033        217,364        15,964                

Ratio of earnings to fixed charges (7)

     5.3x        3.8x        3.2x        4.3x        4.3x   

Operating Data (at year end, except ARPU):

          

Homes passed (8)

     2,806,001        2,777,264        2,742,476        2,701,242        2,657,315   

Basic cable customers (9)

     1,736,892        1,782,242        1,825,081        1,854,981        1,861,477   

Basic cable penetration (10)

     61.9     64.2     66.5     68.7     70.1

Digital customers (13)

     1,570,622        1,553,593        1,527,363        1,480,894        1,397,640   

Digital penetration (11)(13)

     90.4     87.2     83.7     79.8     75.1

Cable Internet customers

     1,568,165        1,537,532        1,505,992        1,443,992        1,359,600   

Cable Internet penetration (10)

     55.9     55.4     54.9     53.5     51.2

Cable telephony lines

     1,316,293        1,349,010        1,348,520        1,316,327        1,245,893   

Cable telephony penetration (10)

     46.9     48.6     49.2     48.7     46.9

Mobile telephony lines (13)

     768,589        632,766        504,314        403,804        290,742   

Over-the-top video customers (1)(13)

     257,477        177,667        58,238                 

ARPU (12)

   $ 135.68      $ 125.16      $ 118.03      $ 111.57      $ 103.28   

 

(1) As a result of the addition of the “over-the-top video services” product line to our consolidated statements of income, operating revenues for the years ended December 31, 2014 and 2013 have been restated.

 

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(2) We are party to a number of back-to-back transactions with Quebecor Media and 9101-0835 Québec inc., a subsidiary of Quebecor Media. With respect to these back-to-back transactions, we recorded interest expense of $213.2 million for the year ended December 31, 2015, $218.6 million for the year ended December 31, 2014, $265.9 million for the year ended December 31, 2013, $213.9 million for the year ended December 31, 2012 and $171.6 million for the year ended December 31, 2011, but we recorded $216.3 million, $224.2 million, $272.5 million, $221.1 million and $177.4 million in dividends from Quebecor Media in 2015, 2014, 2013, 2012 and 2011 respectively. See “Item 5. Operating and Financial Review and Prospects — Uses of Liquidity and Capital Resources — Purchase of Shares of Quebecor Media and Servicing of Subsidiary Subordinated Loan.”
(3) For the years ended December 31, 2015, 2014, 2013, 2012 and 2011, the term “QMI subordinated loans” refers to the $1.0 billion subordinated loan due in 2022 we entered into in 2007 in favor of Quebecor Media (entirely redeemed for $670.0 million and $330.0 million in 2010 and 2014, respectively), the $1.3 billion subordinated loan due in 2025 we entered into in 2010 in favor of Quebecor Media (partly redeemed for $870.0 million in 2014), the $3.25 billion subordinated loan due in 2043 we entered into in 2013 in favor of Quebecor Media (partly redeemed for $2.6 billion in 2013) and the $1.01 billion subordinated loan due in 2045 we entered into in 2015 in favor of Quebecor Media. See “Item 5. Operating and Financial Review and Prospects — Uses of Liquidity and Capital Resources — Purchase of Shares of Quebecor Media and Servicing of Subsidiary Subordinated Loan.”
(4) We believe that long-term debt, excluding QMI subordinated loans, provides investors with a meaningful measure of our long-term debt because the QMI subordinated loans are subordinated in right of payment to the prior payment in full of our senior indebtedness, including our notes, and because the proceeds of our QMI subordinated loans due 2022, 2025, 2043 and 2045 were invested in retractable preferred shares of Quebecor Media or its subsidiaries as part of back-to-back transactions to reduce our income tax obligations. Consequently, we disclose long-term debt, excluding QMI subordinated loans, as a supplemental measure of our indebtedness in this annual report. Long-term debt, excluding QMI subordinated loans, is not intended to be, and should not be, regarded as an alternative to other financial reporting measures, and it should not be considered in isolation as a substitute for measures of liabilities prepared in accordance with IFRS. Long-term debt, excluding QMI subordinated loans, is calculated from and reconciled to long-term debt as follows:

 

     At December 31  
     2015      2014      2013      2012      2011  
    

(Canadian dollars in millions)

(unaudited)

 

Long-term debt

   $ 5,356.6       $ 4,004.5       $ 4,679.1       $ 3,757.1       $ 3,487.1   

QMI subordinated loans (3)

     (2,090.0      (1,080.0      (2,280.0      (1,630.0      (1,630.0
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

Long-term debt, excluding QMI subordinated loans, as defined

   $ 3,266.6       $ 2,924.5       $ 2,399.1       $ 2,127.1       $ 1,857.1   
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

 

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(5) Adjusted operating income and ratios based on this measure are not calculated in accordance with, or recognized by, IFRS. We define adjusted operating income, as reconciled to net income under IFRS, as net income before depreciation and amortization, financial expenses, gain or loss on valuation and translation of financial instruments, gain or loss on debt refinancing, gain or loss on litigation, restructuring of operations and other items, income taxes and income from discontinued operations. We define adjusted operating income margin as adjusted operating income expressed as a percentage of revenues under IFRS. Adjusted operating income, and ratios using this measure, are not intended to be regarded as alternatives to other financial operating performance measures or to the consolidated statement of cash flows as a measure of liquidity and should not be considered in isolation or as a substitute for measures of performance prepared in accordance with IFRS. We use adjusted operating income because we believe that it is a meaningful measure in evaluating our consolidated results. This measure eliminates the effect of significant levels of non-cash charges related to depreciation of tangible assets and amortization of certain intangible assets, and it is unaffected by the capital structure or our investment activities. A limitation of this measure, however, is that it does not reflect the periodic costs of tangible and intangible assets used in generating revenues. Our definition of adjusted operating income may not be the same as similarly titled measures reported by other companies, therefore limiting its usefulness as a comparative measure. See “Presentation of Financial Information — Non-IFRS Measures”. Our adjusted operating income is calculated from and reconciled to net income under IFRS for the years ended December 31, 2015, 2014, 2013, 2012 and 2011 in the table below:

 

     Year ended December 31,  
     2015     2014      2013     2012     2011  
     (dollars in millions)
(unaudited)
 

Net income

   $ 585.9      $ 420.2       $ 376.9      $ 514.0      $ 456.2   

Depreciation and amortization

     625.4        601.4         561.7        485.4        407.0   

Financial expenses (2)

     167.4        169.2         174.1        179.4        161.2   

Loss (gain) on valuation and translation of financial instruments

     0.5        3.4         163.7        (75.7     (53.9

Loss (gain) on debt refinancing

     12.2        21.4         18.9        (7.6     (5.0

(Gain) loss on litigation, restructuring of operations and other items

     (129.7     39.4         0.7        0.5        15.1   

Income taxes expense

     120.7        93.3         29.4        115.8        105.1   

Income from discontinued operations

                    (40.7     (8.1     (12.1
  

 

 

   

 

 

    

 

 

   

 

 

   

 

 

 

Adjusted operating income, as defined

   $ 1,382.4      $ 1,348.3       $ 1,284.7      $ 1,203.7      $ 1,073.6   
  

 

 

   

 

 

    

 

 

   

 

 

   

 

 

 

 

(6) Capital expenditures are comprised of additions to fixed assets and intangible assets, excluding additions to spectrum licenses, which are presented separately in the table.
(7) For the purpose of calculating the ratio of earnings to fixed charges, (i) earnings consist of net income plus income taxes, fixed charges, amortized capitalized interest, less interest capitalized, and (ii) fixed charges consist of interest expensed and capitalized, excluding interest on QMI subordinated loans, plus premiums and discounts amortization, financing fees amortization and an estimate of the interest within rental expense.
(8) “Homes passed” means the number of residential premises, such as single dwelling units or multiple dwelling units, and commercial premises passed by the cable television distribution network in a given cable system service area in which the programming services are offered.
(9) “Basic cable customers” are customers who receive basic cable television service in either analog or digital mode.
(10) Represents customers as a percentage of total homes passed.
(11) Represents customers for the digital service as a percentage of basic cable customers.
(12) ARPU is not a measurement that is calculated in accordance with IFRS, and our definition and calculation of ARPU may not be the same as identically titled measurements reported by other companies. We calculate our ARPU by dividing our combined cable television, Internet access, over-the-top video and cable and mobile telephony revenues by the average number of basic cable customers during the applicable period, and then dividing the resulting amount by the number of months in the applicable period.
(13) Customer statistics and their related penetration rates have been restated for the years 2014, 2013, 2012 and 2011 to reflect certain adjustments to product definitions and to add over-the-top video customers.

 

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B- Capitalization and Indebtedness

Not applicable.

 

C- Reasons for the Offer and Use of Proceeds

Not applicable.

 

D- Risk Factors

This section describes some of the risks that could materially affect our business, revenues, results of operations and financial condition, as well as the market value of our Senior Notes. The factors below should be considered in connection with any forward-looking statements in this document and with the cautionary statements contained in the section “Cautionary Statement Regarding Forward-Looking Statements” at the forepart of this annual report. The risks below are not the only ones that we face. Some risks may not yet be known to us and some that we do not currently believe to be material could later turn out to be material.

Risks Relating to Our Business

We operate in highly competitive industries that are experiencing rapid technological developments and fierce price competition, and our inability to compete successfully could have a material adverse effect on our business, prospects, revenues, financial condition and results of operations.

In our cable business, we compete against incumbent local exchange carriers (“ ILECs ”), the primary one in our market holds a regional license to provide terrestrial broadcasting distribution in Montréal and several other communities in the Province of Québec. Such primary ILEC is rolling out its own Internet protocol television (“ IPTV ”) service throughout the country but more specifically in Montréal (including a portion of the greater Montréal area), in Québec City, and in other locations in the Province of Québec. It has also secured licenses to launch video distribution services using video digital subscriber line (“ VDSL ”) technology. We also compete against providers of direct broadcast satellite (“ DBS ”, which in Canada are also referred to as “ DTH ” for “direct-to-home” satellite providers), multichannel multipoint distribution systems, and satellite master antenna television systems. The direct access to some broadcasters’ websites that provide streaming in high-definition (“ HD ”) of video-on-demand content is also available for some of the channels we offer in our television programming. In addition, some third-party Internet service providers (“ ISPs ”) have launched Internet Protocol video services (“ IPVS ”) in territories in which we provide services.

We also face competition from illegal providers of cable television services and illegal access to non-Canadian DBS (also called grey market piracy), as well as from signal theft of DBS that enables customers to access programming services from U.S. and Canadian DBS without paying any fees (also called black market piracy). Competitors in the video business also include emerging content delivery platforms. Furthermore, OTT content providers, such as Netflix and Apple TV, as well as Canadian services such as Crave TV and Shomi, compete for viewership and a share of the monthly entertainment spending currently allocated to traditional cable television and cable service video-on-demand offerings.

Unlike us, OTT service providers are not subject to CRTC’s regulations and do not have to contribute financially to the Canadian traditional television business model or internet infrastructure. Consequently, this could place us at a competitive disadvantage, lead to increased operational costs and have an adverse effect on our business, prospects, revenues, financial conditions, and results of operations.

In our Internet access business, we compete against other ISPs offering residential and commercial Internet access services as well as WiMAX and open Wi-Fi networks in some cities. The main competitors are the ILECs that offer Internet access through digital subscriber line (“ DSL ”), fibre to the node and fibre to the home technologies, often offering comparable download speeds to ours. In addition, satellite operators such as Xplornet are increasing their existing high-speed Internet access capabilities with the launch of high-throughput satellites, targeting households in rural and remote locations and claiming future download speeds comparable to our low and medium download speeds. The CRTC also requires cable and ILEC network providers, including ourselves, to offer wholesale access to our high-speed Internet systems to third-party ISP competitors for them to provide retail Internet access services. These third-party ISP competitors may also provide telephony, IPVS and networking applications.

 

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Our cable telephony business has numerous competitors, including ILECs, competitive local exchange carriers, mobile telephony service operators and other providers of telephony, Voice over Internet Protocol (“ VoIP ”) and Internet communications, including competitors that are not facility-based and therefore have a much lower infrastructure cost. In addition, Internet protocol-based products and services are generally subject to downward pricing pressure, lower margins and technological evolution, all of which could have an adverse effect on our business, prospects and results of operation.

In our mobile telephony business, we compete against a mix of market participants, some of them active in some or all of the products we offer, with others offering only mobile telephony services. In addition, users of mobile voice and data systems may find their communication needs satisfied by other current or developing adjunct technologies, such as Wi-Fi, “hotspots” or trunk radio systems, which have the technical capability to handle mobile data communication and mobile telephone calls. There can be no assurance that current or future competitors will not provide network capacity and/or services comparable or superior to those we provide or may in the future provide, or at lower prices, or adapt more quickly to evolving industry trends or changing market requirements, or introduce competing services. For instance, some providers of mobile telephony services (including incumbent carriers) have deployed and have been operating for many years lower-cost mobile telephony brands in order to acquire additional market share. In the near future, depending on new regulations, we could see the emergence of non facility-based operators in the wireless space. Also, we may not be able to compete successfully in the future against existing or potential competitors, and increased competition could have a material adverse effect on our business, prospects, revenues, financial condition and results of operations.

Due to ongoing technological developments, the distinction between traditional platforms (broadcasting, Internet and telephony) is fading rapidly. For instance, emerging Go Platforms such as HBO Go, allow customers to view their traditional television content directly on their mobile devices or computers via Internet connection (although authentication as a broadcasting distribution undertaking’s subscriber (“ BDU’s subscriber ”) is still required in Canada). Also, the Internet, through wired and mobile devices, is becoming an important broadcasting and distribution platform. In addition, mobile operators, with the development of their respective 4G and Long Term Evolution (also known as “ LTE ”) networks, are now offering wireless and fixed wireless Internet services. In addition, our VoIP telephony service also competes with Internet-based solutions.

Moreover, a few of our competitors are offering special discounts to customers who subscribe to two or more of their services (cable television or IPTV, Internet, residential phone and mobile telephony services). As a result, should we fail to keep our existing customers and lose them to such competitors, we may end up losing up to one subscriber for each of our services. This could have an adverse effect on our business, prospects, revenues, financial condition and results of operation.

Fierce price competition in all our businesses and across the industries in which we operate may affect our ability to raise the price of our products and services in line with increases in our operating costs, as we have done in the past. This could have an adverse effect on our business, revenues, financial condition, and results of operation.

We have entered into roaming agreements with other mobile operators in order to provide worldwide coverage to our mobile telephony customers. Our inability to extend our worldwide coverage or to renew, or substitute for, these roaming agreements at their respective terms, and on acceptable terms, may place us at a competitive disadvantage, which could adversely affect our ability to operate our mobile business successfully and profitably.

We have entered into roaming agreements with multiple carriers around the world (including Canada, the United States and Europe), and have established worldwide coverage. Our inability to extend our worldwide coverage or to renew, or substitute for, these roaming agreements at their respective or better terms or on acceptable terms, may place us at a competitive disadvantage, which could adversely affect our ability to operate our mobile business successfully and profitably.

In addition, various aspects of mobile communication operations, including the ability of mobile providers to enter into interconnection agreements with traditional landline telephone companies and to manage data traffic on their networks, are subject to regulation by the CRTC. Regulations adopted or actions taken by government agencies having jurisdiction over any mobile business that we may operate or develop could adversely affect our mobile business and operations, including actions that could increase competition or our costs.

 

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Our reputation may be negatively impacted, which could have a material adverse effect on our business, financial condition and results of operations.

We have generally enjoyed a good reputation among the public. Our ability to maintain our existing customer relationships and to attract new customers depends to a large extent on our reputation. While we have put in place certain mechanisms to mitigate the risk that our reputation may be tarnished, including good governance practices and a Code of Ethics, we cannot be assured that we will continue to enjoy a good reputation nor can we be assured that events that are beyond our control will not cause our reputation to be negatively impacted. The loss or tarnishing of our reputation could have a material adverse effect on our business, prospects, financial condition and results of operations.

We could be adversely impacted by higher handset subsidies and increase in bring-your-own-device (“BYOD”) customers.

Our mobile telephony business model is based substantially on subsidizing the cost of subscriber handsets, similar to other North American wireless carriers. This model attracts customers and in exchange they commit to a term contract with us. We also commit to a minimum subsidy per unit with the supplier of certain smartphone devices. If we are unable to recover the costs of the subsidies over the term of the customer contract this could negatively impact our business, financial condition and results of operations.

Also, with the CRTC’s Wireless Code introduced in 2013 limiting wireless term contracts to two years from three years, the number of BYOD customers with no-term contracts could increase. Such customers are under no contractual obligation to remain with us, this could have a material adverse effect on our churn rate and, consequently, on our business, financial condition and results of operations.

Our inventory may become obsolete.

Our various products in inventory generally have a relatively short lifecycle due to frequent technological changes. If we cannot effectively manage inventory levels based on product demand, this could increase the risk of inventory obsolescence and could have an adverse effect on our business, financial condition and results of operations.

We are regularly required to make capital expenditures to remain technologically and economically competitive. We may not be able to obtain additional capital to implement our business strategies and make capital expenditures.

Our strategy of maintaining a leadership position in the suite of products and services we offer and of launching new products and services requires capital investments in our network and infrastructure to support growth in our customer base and its demands for increased bandwidth capacity and other services. In the past, we have required substantial capital for the upgrade, expansion and maintenance of our network and the launch and deployment of new or additional services. We expect that additional capital expenditures will continue to be required in the short and medium term in order to expand and maintain our systems and services, including expenditures relating to advancements in Internet access, HD television, ultra-high-definition (“ UHD ”) television and television everywhere/every platform requiring Internet protocol delivery technology, as well as the cost of our mobile services infrastructure deployment, maintenance and enhancement.

The demand for wireless data services has been growing at unprecedented rates and it is projected that this demand will further accelerate, driven by the following increases: levels of broadband penetration; need for personal connectivity and networking; affordability of smartphones and Internet-only devices (e.g., high-usage data devices such as mobile Internet keys, tablets and electronic book readers); multimedia-rich services and applications; and unlimited data plans. The anticipated levels of data traffic will represent a growing challenge to the current mobile network’s ability to serve this traffic. We may have to acquire additional spectrum, if available and if economically reasonable, in order to address this increased demand. The ability to acquire additional spectrum (if needed) is dependent on the timing and the rules established by Innovation, Science and Economic Development Canada. If we are not successful in acquiring

 

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additional spectrum we may need on reasonable terms, that could have a material adverse effect on our business, prospects and financial condition. See also “Item 4. Information on the Corporation — Regulation — Canadian Telecommunications Services — Regulatory Framework for Mobile Wireless Services.”

Developing, maintaining and enhancing our LTE network requires capital expenditures to remain competitive and to comply with our obligations under the agreement with our partner governing the joint build-out of our LTE network. A geographical expansion or densification of our LTE network may require us to incur significant costs and to make significant capital expenditures. See also “Item 4. Information on the Corporation — History and Development of the Corporation.”

There can be no assurance that we will be able to generate or otherwise obtain the funds to finance any portion of these capital improvement programs, new strategies and services or other capital expenditure requirements, whether through cash from operations, additional borrowings or other sources. If we are unable to generate sufficient funds or obtain additional financing on acceptable terms, we may be unable to implement our business strategies or proceed with the capital expenditures and investments required to maintain our leadership position, and our business, financial condition, results of operations, reputation, and prospects could be materially adversely affected. Even if we are able to obtain adequate funding, the period of time required to upgrade our network could have a material adverse effect on our ability to successfully compete in the future. Moreover, additional investments in our business may not translate into incremental revenues, cash flows or profitability.

See also the risk factors “— We operate in highly competitive industries that are experiencing rapid technological developments and fierce price competition, and our inability to compete successfully could have a material adverse effect on our business, prospects, revenues, financial condition and results of operations”, “— We compete, and will continue to compete, with alternative technologies and we may be required to invest a significant amount of capital to address continuing technological evolution and development” and “— Risks Relating to our Senior Notes and our Capital Structure — We may be required from time to time to refinance certain of our indebtedness. Our inability to do so on favorable terms, or at all, could have a material adverse effect on us.”

We may need to support increasing costs in securing access to support structures needed for our cable network.

We require access to the support structures of hydroelectric and telephone utilities and need municipal rights of way to deploy our cable network. Where access to the structures of telephone utilities cannot be secured, we may apply to the CRTC to obtain a right of access under the Telecommunications Act (Canada) (the “ Telecommunications Act ”). We have entered into comprehensive support structure access agreements with all of the major hydroelectric companies and all of the major telecommunications companies in our service territory. In the event that we seek to renew or to renegotiate these agreements, we cannot guarantee that these agreements will continue to be available on their respective terms, on acceptable terms, or at all, which may place us at a competitive disadvantage.

We may not successfully implement our business and operating strategies.

Our strategies include strengthening our position as telecommunications leader, introducing new and enhanced products and services, maintaining our advanced broadband network, further integrating the operations of our subsidiaries, leveraging geographic clustering and maximizing customer satisfaction across our business. We may not be able to implement these strategies successfully or realize their anticipated results fully or at all, and their implementation may be more costly or challenging than initially planned. In addition, our ability to successfully implement these strategies could be adversely affected by a number of factors beyond our control, including operating difficulties, increased ongoing operating costs, regulatory developments, general or local economic conditions, increased competition, technological changes and other factors described in this “Risk Factors” section. While the centralization of certain business operations and processes has the advantage of standardizing our practices, thereby reducing costs and increasing effectiveness, it also represents a risk in itself should a business solution implemented by a centralized office throughout the organization fail to produce the intended results. We may also be required to make capital expenditures or other investments that may affect our ability to implement our business strategies if we are unable to secure additional financing on acceptable terms or to generate sufficient funds internally to cover those requirements. Any material failure to implement our strategies could have a material adverse effect on our reputation, business, financial condition, prospects and results of operations, as well as on our ability to meet our obligations, including our ability to service our indebtedness.

 

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As part of our strategy, in recent years, we have entered into certain agreements with third-parties under which we are committed to making significant operating expenditures in the future. We can provide no assurance that we will be successful in developing new activities in relation to these engagements, including the development of new revenue sources.

We could be adversely impacted by consumers’ trend to abandon cable telephony and television services.

The recent trend toward mobile substitution or “cord-cutting” (when users cancel their landline telephony services and opt for mobile telephony services only) is largely the result of the increasing mobile penetration rate in Canada and the various unlimited offers launched by mobile operators. In addition, there is also a consumer trend to abandon and substitute wire and cable television for Internet access service in order to stream directly from broadcasters and OTT content providers. We may not be successful in converting our existing cable telephony subscriber base to our mobile telephony services or in attracting customers to our OTT entertainment platforms, which could have a material adverse effect on our business, our results of operation and our financial condition.

We could be adversely affected by the rapid growth of traffic volumes on the Internet.

Internet users are downloading an increasing amount of data each year and households are now connected to the Internet through a combination of several computers, tablets and other mobile devices, leading to simultaneous flows per home, which constitutes a departure from the past, when a majority of households were connected to the Internet through a single computer. In addition, some content on the Internet, such as videos, is now available at a higher bandwidth for which HD, as opposed to standard definition, has become the norm. OTT service providers have recently started streaming UHD content which uses even more bandwidth than HD services. There has therefore been an increase in data consumption and an intensification of Internet traffic during peak periods, which calls for increased bandwidth capacity to address the needs of our customers.

Equipment costs are under pressure in an effort to counterbalance customers’ demand for bandwidth. While we can relay some of this pressure on costs to our manufacturers, can adopt new technologies that reduce costs or implement other cost-reduction initiatives, our inability to fully meet our increasing need for bandwidth may result in price increases or in reduced profitability.

We compete, and will continue to compete, with alternative technologies and we may be required to invest a significant amount of capital to address continuing technological evolution and development.

The media industry is experiencing rapid and significant technological changes, which have resulted in alternative means of program and content transmission. The continued growth of the Internet has presented alternative content distribution options that compete with traditional media. Furthermore, in our video distribution markets, industry regulators have authorized DTH, microwave services and VDSL services and may authorize other alternative methods of transmitting television and other content with improved speed and quality. We may not be able to successfully compete with existing or newly developed alternative technologies, such as IPTV, or we may be required to acquire, develop or integrate new technologies. The cost of the acquisition, development or implementation of new technologies could be significant and our ability to fund such implementation may be limited, which could have a material adverse effect on our ability to successfully compete in the future. Any such difficulty or inability to compete could have a material adverse effect on our business, reputation, prospects, financial condition, and results of operations.

The continuous technological improvements to the Internet, combined with higher download speeds and cost reductions for customers, may divert a portion of our existing television subscriber base from our services to new video-over-the-Internet model. While having a positive impact on the demand for our Internet services, video-over-the-Internet could adversely impact the demand for our other services.

If we do not effectively manage our growth, our business, results of operations and financial condition could be adversely affected.

We have experienced substantial growth in our business and have significantly expanded our operations over the years. We have sought in the past, and may, in the future, seek to further expand the types of businesses in which we participate, under appropriate conditions. We can provide no assurance that we will be successful in either developing or fulfilling the objectives of any such business expansion.

 

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In addition, our expansion may require us to incur significant costs or divert significant resources, and may limit our ability to pursue other strategic and business initiatives, which could have an adverse effect on our business, financial condition, prospects or results of operations. Furthermore, if we are not successful in managing our growth, or if we are required to incur significant or unforeseen costs, our business, results of operations and financial condition could be adversely affected.

The implementation of changes to the structure of our business may be more expensive than expected and we may not gain all the anticipated benefits.

We have and we will continue to implement changes to the structure of our business due to many factors such as the necessity of a corporate restructuring, a system replacement and upgrade, a process redesign and the integration of business acquisitions or existing business units. These changes must be managed carefully to ensure that we capture the intended benefits. The implementation process may lead to greater-than-expected operational challenges and costs, expenses, customer loss and business disruption for us, which could adversely affect our business and our ability to gain our anticipated benefits.

We depend on key personnel and our inability to retain skilled employees may have an adverse effect on our financial condition and results of operations.

Our success depends to a large extent on the continued services of our senior management and our ability to retain skilled employees. There is intense competition for qualified management and skilled employees, and our failure to recruit, train and retain such employees could have a material adverse effect on our business, financial condition and results of operations. In addition, in order to implement and manage our businesses and operating strategies effectively, we must sustain a high level of efficiency and performance and maintain content quality, we must continually enhance our operational and management systems, and continue to effectively attract, train, motivate and manage our employees. If we are not successful in these efforts, it may have a material adverse effect on our business, prospects, results of operations and financial condition.

Our financial performance could be materially adversely affected if we cannot continue to distribute a wide range of television programming on commercially reasonable terms.

The financial performance of our cable and mobile services depends in large part on our ability to distribute on our platforms a wide range of appealing, conveniently-scheduled television programming at reasonable rates. We obtain television programming rights from suppliers pursuant to programming contracts. In recent years, these suppliers have become vertically integrated and are now more limited in number. The quality and amount of television programming we offer affect the attractiveness of our services to customers and, accordingly, the rates we can charge for these services. We may be unable to maintain key programming contracts at commercially reasonable rates for television programming. Loss of programming contracts, our inability to obtain programming at reasonable rates or our inability to pass-through rate increases to our customers could have a material adverse effect on our business, financial condition, results of operations and prospects.

In addition, our ability to attract and retain cable customers depends, to a certain extent, on our capacity to offer quality content, HD and UHD programming, an appealing variety of programming choices and packages, as well as multiplatform distribution and on-demand content, at competitive prices. If the number of specialty channels being offered does not increase at the level and pace comparable to our competitors, if the content offered on such channels does not receive audience acceptance, or if we are unable to offer multiplatform availability, HD and UHD programming and on-demand content for capacity reasons, among others, this may have a negative impact on revenues from our cable operations.

The multiplicity of foreign and deregulated content providers (often global players on the Internet) puts pressure on the viability of our current business model for television distribution. Substantial capital expenditures on our infrastructure and in our research and development may be required to remain competitive.

 

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We provide our television, Internet access, cable telephony and mobile telephony services through a single clustered network, which may be more vulnerable to widespread disruption.

We provide our television, Internet access, cable telephony and mobile telephony services through a primary headend and our analog television services through twelve additional regional headends in our single clustered network. Despite available emergency backup or replacement sites, a failure in our primary headend, including exogenous threats, such as natural disasters, sabotage or terrorism, or dependence on certain external infrastructure providers (such as electric utilities), could prevent us from delivering some of our products and services throughout our network until the failure has been resolved, which may result in significant customer dissatisfaction, loss of revenues and potential civil litigation.

Cybersecurity breaches and other similar disruptions could expose us to liability, which would have an adverse effect on our business and reputation.

The ordinary course of our telecommunications and data-storage businesses involves the receipt, collection, storage and transmission of sensitive data, including our proprietary business information and that of our customers, and personally identifiable information of our customers and employees, whether in our data centres, systems, infrastructure, networks or processes. The secure processing, maintenance and transmission of this information is critical to our operations and business strategy.

Although we have implemented and regularly review and update processes and procedures to protect against unauthorized access to or use of sensitive data, including data of our customers, and to prevent data loss, ever-evolving cyber-threats require us to continually evaluate and adapt our data centres, systems, infrastructure, networks and processes. We cannot assure that our data centres, systems, infrastructure, networks and processes will be adequate to safeguard against all information security access by third-parties or employees or errors by third party suppliers. If we are subject to a significant cyber-attack or breach, unauthorized access, errors of third-party suppliers or other security breaches, we may incur significant costs, be subject to investigations, sanctions and litigation, including under laws that protect the privacy of personal information, and we may suffer damage to our business, competitive position and reputation.

We have not to our knowledge been subject to cyber-attacks or breaches which, individually or in the aggregate, have had a material impact on our operations (including the integrity of our customers’ data) or financial condition. However, the preventive actions we take to reduce the risks associated with cyber-attacks, including protection of our data centres, systems, infrastructure, networks and processes, may be insufficient to repel or mitigate the effects of a major cyber-attack in the future.

We store and process increasingly large amounts of personally identifiable data of our clients, employees or our business partners, and the improper use or disclosure of such data would have an adverse effect on our business and reputation.

We store and process increasingly large amounts of personally identifiable information of our clients, employees or our business partners. We face risks inherent in protecting the security of such personal data. In particular, we face a number of challenges in protecting the data in and hosted on our systems, including from advertent or inadvertent actions or inactions by our employees, as well as in relation to compliance with applicable laws, rules and regulations relating to the collection, use, disclosure or security of personal information, including any requests from regulatory and government authorities relating to such data. Although we have developed systems, processes and security controls that are designed to protect personally identifiable information of our clients, employees or our business partners, we may be unable to prevent the improper disclosure, loss, misappropriation of, unauthorized access to, or other security breach relating to such data that we store or process. As a result, we may incur significant costs, be subject to investigations, sanctions and litigation, including under laws that protect the privacy of personal information, and we may suffer damage to our business, competitive position and reputation.

 

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We are dependent upon our information technology systems and those of certain third-parties. The inability to enhance our systems could have an adverse impact on our financial results and operations.

The day-to-day operation of our business is highly dependent on information technology systems, including those of certain third-party suppliers. An inability to maintain and enhance our existing information technology systems or obtain new systems to accommodate additional customer growth or to support new products and services could have an adverse impact on our ability to acquire new subscribers, retain existing customers, produce accurate and timely billing, generate revenue growth and manage operating expenses, all of which could adversely impact our financial results and position.

Malicious and abusive Internet practices could impair our cable data and mobile data services as well as our fibre-optic connectivity business.

Our cable data, mobile data and fibre-optic connectivity business customers utilize our network to access the Internet and, as a consequence, we or they may become a victim of common malicious and abusive Internet activities, such as unsolicited mass advertising (or spam) and dissemination of viruses, worms and other destructive or disruptive software. These activities could have adverse consequences on our network and our customers, including deterioration of service, excessive call volume to call centers and damage to our customers’ equipment and data or ours. Significant incidents could lead to customer dissatisfaction and, ultimately, to a loss of customers or revenues, in addition to increased costs to service our customers and protect our network. Any significant loss of cable data, mobile data or fibre-optic connectivity business customers, or a significant increase in the costs of serving those customers, could adversely affect our reputation, business, prospects, financial condition and results of operations.

We may not be able to protect our services from piracy, which may have an adverse effect on our customer base and lead to a possible decline in revenues.

In our cable television, Internet access, OTT and telephony business, we may not be able to protect our services and data from piracy. We may be unable to prevent electronic attacks to gain unauthorized access to our network, analog and digital programming, and our Internet access services. We use encryption technology to protect our cable signals and OTT from unauthorized access and to control programming access based on subscription packages. We may not be able to develop or acquire adequate technology to prevent unauthorized access to our network, programming and data, which may have an adverse effect on our customer base and lead to a possible decline in our revenues, as well as to significant remediation costs and legal claims.

We depend on third-party suppliers and providers for services, hardware, equipment, information and other items critical to our operations.

We depend on third-party suppliers and providers for certain services, hardware and equipment that are critical to our operations and network evolution. These materials and services include set-top boxes, mobile telephony handsets and network equipment, cable and telephony modems, servers and routers, fibre-optic cable, telephony switches, inter-city links, support structures, software, the “backbone” telecommunications network for our Internet access and telephony services, and construction services for the expansion of and upgrades to our cable and mobile networks. These services and equipment are available from a limited number of suppliers and therefore we face the risks of supplier disruption, including business difficulties, restructuring or supply-chain issues. If no supplier can provide us with the equipment or services that we require or that comply with evolving Internet and telecommunications standards or that are compatible with our other equipment and software, our business, financial condition and results of operations could be materially adversely affected. In addition, if we are unable to obtain critical equipment, software, services or other items on a timely basis and at an acceptable cost, our ability to offer our products and services and roll out our advanced services may be delayed, and our business, financial condition and results of operations could be materially adversely affected.

In addition, we obtain proprietary content critical to our operations through licensing arrangements with content providers. Some providers may seek to increase fees or impose technological requirements to protect their proprietary content. If we are unable to renegotiate commercially acceptable arrangements with these content providers, comply with their technological requirements or find alternative sources of equivalent content, our operations may be adversely affected.

 

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We may be adversely affected by litigation and other claims.

In the normal course of business, we are involved in various legal proceedings and other claims relating to the conduct of our business. Although, in the opinion of our management, the outcome of current pending claims and other litigation is not expected to have a material adverse effect on our reputation, results of operations, liquidity or financial position, a negative outcome in respect of any such claim or litigation could have a said adverse effect. Moreover, the cost of defending against lawsuits and the diversion of management’s attention could be significant. See also “Item 8. Financial Information – Legal Proceedings” in this annual report.

We may be adversely affected by strikes and other labour protests.

As of December 31, 2015, approximately 60% of our employees are unionized, and the terms of their employment are governed by one of our five regional collective bargaining agreements.

We are not currently subject to a labour dispute. Nevertheless, we can neither predict the outcome of current or future negotiations relating to labour disputes, union representation or renewal of collective bargaining agreements, nor guarantee that we will not experience future work stoppages, strikes or other forms of labour protests pending the outcome of any current or future negotiations. If our unionized workers engage in a strike or any other form of work stoppage, we could experience a significant disruption to our operations, damage to our property and/or interruption to our services, which could adversely affect our business, assets, financial position, results of operations and reputation. Even if we do not experience strikes or other forms of labour protests, the outcome of labour negotiations could adversely affect our business and results of operations. Such could be the case if current or future labour negotiations or contracts were to further restrict our ability to maximize the efficiency of our operations. In addition, our ability to make short-term adjustments to control compensation and benefits costs is limited by the terms of our collective bargaining agreements.

Our defined benefit pension plans are currently underfunded and our pension funding requirements could increase significantly due to a reduction in funded status as a result of a variety of factors.

The economic cycles, employee demographics and changes in regulations could have a negative impact on the funding of our defined benefit pension plans and related expenditures. There is no guarantee that the expenditures and contributions required to fund these pension plans will not increase in the future and therefore negatively impact our operating results and financial position. Risks related to the funding of defined benefit plans may materialize if total obligations with respect to a pension plan exceed the total value of its trust assets. Shortfalls may arise due to lower-than-expected returns on investments, changes in the assumptions used to assess the pension plan’s obligations, and actuarial losses.

We may be adversely affected by exchange rate fluctuations.

Most of our revenues and expenses are denominated in Canadian dollars. However, certain expenditures, such as the purchase of set-top boxes and cable modems, certain mobile devices and certain capital expenditures, including certain costs related to the development and maintenance of our mobile network, are paid in U.S. dollars. Those costs are partially hedged hence a significant increase in the U.S. dollar could have an adverse effect on our results of operations.

Also, a substantial portion of our debt is denominated in U.S. dollars, and interest, principal and premium, if any, are payable in U.S. dollars. For the purposes of financial reporting, any change in the value of the Canadian dollar against the U.S. dollar during a given financial reporting period would result in a foreign exchange gain or loss on the translation of any unhedged U.S. dollar-denominated debt into Canadian dollars. Consequently, our reported earnings and debt could fluctuate materially as a result of foreign-exchange gains or losses. We have entered into transactions to hedge the exchange rate risk with respect to our U.S. dollar-denominated debt outstanding at December 31, 2015, and we intend in the future to enter into such transactions for new U.S. dollar-denominated debt. These hedging transactions could, in certain circumstances, prove economically ineffective and may not be successful in protecting us against exchange rate fluctuations, or we may in the future be required to provide cash and other collateral in order to secure our obligations with respect to such hedging transactions, or we may in the future be unable to enter into such transactions on favorable terms, or at all.

 

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In addition, certain cross-currency interest rate swaps entered into by us include an option that allows each party to unwind the transaction on a specific date at the then settlement amount.

The fair value of the derivative financial instruments we are party to is estimated using period-end market rates and reflects the amount we would receive or pay if the instruments were terminated and settled at those dates, as adjusted for counterparties’ non-performance risk. At December 31, 2015, the net aggregate fair value of our cross-currency interest rate swaps and foreign-exchange forward contracts was in an asset position of $494.2 million on a consolidated basis. See also “Item 11. Quantitative and Qualitative Disclosures About Market Risk” of this annual report.

Some of our suppliers source their products out of the U.S., therefore, although we pay these suppliers in Canadian dollars, the prices we pay for such products may be affected by fluctuations in the exchange rate. We may in the future enter into transactions to hedge our exposure to the exchange rate risk related to the prices of some of those products. However, fluctuations to the exchange rate for our purchases that are not hedged could affect the prices we pay for such purchases and could have an adverse effect on our results of operations.

The volatility and disruptions in the capital and credit markets could adversely affect our business, including the cost of new capital, our ability to refinance our scheduled debt maturities and meet our other obligations as they become due.

The capital and credit markets have experienced significant volatility and disruption over the last several years, resulting in periods of upward pressure on the cost of new debt capital and severe restrictions in credit availability for many companies. In such periods, the disruptions in the capital and credit markets have also resulted in higher interest rates or greater credit spreads on the issuance of debt securities and increased costs under credit facilities. Disruptions in the capital and credit markets could increase our interest expense, thereby adversely affecting our results of operations and financial position.

Our access to funds under our existing credit facilities is dependent on the ability of the financial institutions that are parties to those facilities to meet their funding commitments. Those financial institutions may not be able to meet their funding commitments if they experience shortages of capital and liquidity or if they experience excessive volumes of borrowing requests within a short period of time. Moreover, the obligations of the financial institutions under our credit facilities are several and not joint and, as a result, a funding default by one or more institutions does not need to be made up by the others.

Extended periods of volatility and disruptions in the capital and credit markets as a result of uncertainty, changing or increased regulation of financial institutions, reduced financing alternatives or failures of significant financial institutions could adversely affect our access to the liquidity and affordability of funding needed for our businesses in the longer term. Such disruptions could require us to take measures to conserve cash until the markets stabilize or until alternative credit arrangements or other funding for our business needs can be arranged. Market disruptions and broader economic challenges may lead to lower demand for certain of our products and increased incidences of customer inability to pay or timely pay for the services or products that we provide. Events such as these could adversely impact our results of operations, cash flows, financial position and prospects.

A failure to adopt an ethical business conduct may adversely affect our reputation.

Any failure or perceived failure to adhere to our policies, the law or ethical business practices could significantly affect our reputation and brands and could therefore negatively impact our financial performance. Our framework for managing ethical business conduct includes the adoption of a Code of Ethics which our directors and employees are required to acknowledge and agree to on a regular basis and, as part of an independent audit and security function, maintenance of a whistle-blowing hotline. There can be no assurance that these measures will be effective to prevent violations or perceived violations of law or ethical business practices.

 

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Subject to the realization of various conditions and factors, we may have to record, in the future, asset impairment charges, which could be material and could adversely affect our future reported results of operations and equity.

We have recorded in the past asset impairment charges which, in some cases, have been material. Subject to the realization of various factors, including, but not limited to, weak economic or market conditions, we may be required to record in the future, in accordance with IFRS accounting valuation principles, additional non-cash impairment charges if the carrying value of an asset in our financial statements is in excess of its recoverable value. Any such asset impairment charge could be material and may adversely affect our future reported results of operations and equity, although such charges would not affect our cash flow.

We undertake acquisitions, dispositions, business combinations, or joint ventures from time to time which may involve significant risks and uncertainties.

From time to time, we engage in discussions and activities with respect to possible acquisitions, dispositions, business combinations, or joint ventures intended to complement or expand our business, some of which may be significant transactions for us and involve significant risks and uncertainties. We may not realize the anticipated benefit from any of the transactions we pursue, and may have difficulty incorporating or integrating any acquired business. Regardless of whether we consummate any such transaction, the negotiation of a potential transaction (including associated litigation), as well as the integration of any acquired business, could require us to incur significant costs and cause diversion of management’s time and resources and disrupt our business operations. We could face several challenges in the consolidation and integration of information technology, accounting systems, personnel and operations.

If we determine to sell individual properties or other assets or businesses, we will benefit from the net proceeds realized from such sales. However, our revenues may suffer in the long term due to the disposition of a revenue generating asset, or the timing of such dispositions may be poor, causing us to fail to realize the full value of the disposed asset, all of which may diminish our ability to repay our indebtedness at maturity.

Any of the foregoing could have a material adverse effect on our business, financial condition, operating results, liquidity and prospects.

The competition for retail locations and the consolidation of independent retailers may adversely affect the expansion of our telecommunications business’ sale network.

The competition to offer products in the best available retail commercial spaces is fierce in the telecommunications business. Some of our telecommunications business’ competitors have pursued a strategy of selling their products through independent retailers to extend their presence on the market and some of our competitors have also acquired certain independent retailers and created new distribution networks. This could result in limiting the expansion of our retail network and may contribute to isolate us from our competitors, which could have an adverse effect on our business, prospects and results of operation.

Risks Relating to Regulation

We are subject to extensive government regulation and policy-making. Changes in government regulation or policies could adversely affect our business, financial condition, prospects and results of operations.

Our operations are subject to extensive government regulation and policy-making in Canada. Laws and regulations govern the issuance, amendment, renewal, transfer, suspension, revocation and ownership of broadcast programming and distribution licenses. With respect to distribution, regulations govern, among other things, the distribution of Canadian and non-Canadian programming services and the maximum fees to be charged to the public in certain circumstances. There are significant restrictions on the ability of non-Canadian entities to own or control broadcasting licenses and telecommunications carriers in Canada, although the federal government recently eliminated the foreign ownership restrictions on telecommunications companies with less than 10 percent of total Canadian telecommunications market revenues. Our broadcasting distribution and telecommunications operations (including Internet access service) are regulated respectively by the Broadcasting Act (Canada) (the “ Broadcasting Act ”) and the Telecommunications Act and regulations thereunder. The CRTC, which administers the Broadcasting Act and the Telecommunications Act, has the power to grant, amend, suspend, revoke and renew broadcasting licenses, approve certain changes in corporate ownership and control, and make regulations and policies in accordance with the Broadcasting Act and the Telecommunications Act, subject to certain directions from the federal cabinet. For instance, the

 

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CRTC recently adopted a new Wireless Code which regulates numerous aspects of the provision of retail wireless services and a new Television Service Provider Code which regulates numerous aspects of the provisions of retail television services. Our wireless and cable operations are also subject to technical requirements, license conditions and performance standards under the Radiocommunication Act (Canada) (the “ Radiocommunication Act ”), which is administered by Innovation, Science and Economic Development Canada.

In addition, laws relating to communications, data protection, e-commerce, direct marketing and digital advertising and the use of public records have become more prevalent in recent years. Existing and proposed legislation and regulations, including changes in the manner in which such legislation and regulations are interpreted by courts in Canada, the United States and other jurisdictions may impose limits on our collection and use of certain kinds of information. On December 17, 2014, an amendment to the Telecommunications Act and the Radiocommunication Act was adopted to give to the CRTC and Innovation, Science and Economic Development Canada the power to impose monetary sanctions for failure to comply with current regulations. For a more extensive description of the regulatory environment affecting our business, see “Item 4. Information on the Corporation – Regulation”.

Changes to the laws, regulations and policies governing our operations, the introduction of new laws, regulations, policies or terms of license, the issuance of new licenses, including additional spectrum licenses to our competitors or changes in the treatment of the tax deductibility of advertising expenditures could have a material adverse effect on our business (including how we provide products and services), financial condition, prospects and results of operations. In addition, we may incur increased costs in order to comply with existing and newly adopted laws and regulations or penalties for any failure to comply. It is difficult to predict in what form laws and regulations will be adopted or how they will be construed by the relevant courts or the extent to which any changes might adversely affect us.

Innovation, Science and Economic Development Canada may not renew our mobile spectrum licenses on acceptable terms, or at all.

Our AWS-1 licenses were issued in December 2008 for a 10-year term. Beginning two years before the end of this term, and any subsequent term, we may apply for renewed licenses for a term of up to 10 years. AWS-1 license renewal, including whether license fees should apply for a subsequent license term, will be subject to a public consultation process initiated in the eighth year of the applicable licenses, meaning in 2016 in respect of our current AWS-1 licenses.

Our other spectrum licenses, including in the AWS-3, 700MHz and 2500MHz bands, are issued for 20-year terms from their respective dates of issuance. At the end of these respective terms, applications may be made for new licenses for a subsequent term through a renewal process, unless a breach of license condition by us has occurred, a fundamental reallocation of spectrum to a new service is required, or in the event that an overriding policy need arises. The process for issuing or renewing licenses, including the terms and conditions of the new licenses and whether license fees should apply for a subsequent license term, are expected to be determined by Innovation, Science and Economic Development Canada following public consultations.

We are required to provide third-party ISPs with access to our cable systems, which may result in increased competition.

The largest cable operators in Canada, including Videotron, have been required by the CRTC to provide third-party ISPs with access to their cable systems at mandated cost-based rates. Several third-party ISPs are interconnected to our cable network and are thereby providing retail Internet access services.

In a decision issued on July 22, 2015, the CRTC ordered substantial changes to the framework for the provision of wholesale services to third-party ISPs. The provision of aggregated services will no longer be mandated and will be phased out in conjunction with the implementation of a new mandatory disaggregated service which will involve third-party ISPs provisioning their own regional transport services. This disaggregated service will also include, for the first time, mandated access to high-speed services provided over fibre-access facilities, including the fibre-access facilities of the large incumbent telephone companies. As a result of this decision, we may experience increased competition for retail cable Internet and telephony customers. In addition, because our third-party Internet access rates are regulated by the CRTC, we could be limited in our ability to recover our costs associated with providing this access.

 

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We are subject to a variety of environmental laws and regulations.

We are subject to a variety of environmental laws and regulations. Some of our facilities are subject to federal, provincial, state and municipal laws and regulations concerning, for example, emissions to the air, water and sewer discharge, the handling and disposal of hazardous materials and waste, recycling, soil remediation of contaminated sites, or otherwise relating to the protection of the environment. In addition, laws and regulations relating to workplace safety and worker health, which, among other things, regulate employee exposure to hazardous substances in the workplace, also govern our operations. Failure to comply with present or future laws or regulations could result in substantial liability for us.

Environmental laws and regulations and their interpretation have changed rapidly in recent years and may continue to do so in the future. For instance, most Canadian provinces have recently implemented Extended Producer Responsibility (EPR) regulations in order to encourage sustainability practices such as the “Ecological recovery and reclamation of electronic products”, which sets certain recovery targets and which may require us to monitor and adjust our practices in the future.

Our properties, as well as areas surrounding those properties, particularly those in areas of long-term industrial use, may have had historic uses, or may have current uses, in the case of surrounding properties, which may affect our properties and require further study or remedial measures. We cannot provide assurance that all environmental liabilities have been determined, that any prior owner of our properties did not create a material environmental condition not known to us, that a material environmental condition does not otherwise exist on any of our properties, or that expenditure will not be required to deal with known or unknown contamination.

Concerns about alleged health risks relating to radiofrequency emissions may adversely affect our business.

Some studies have alleged links between radiofrequency emissions from certain wireless devices and cell sites and various health problems or possible interference with electronic medical devices, including hearing aids and pacemakers. All our cell sites comply with applicable laws and we rely on our suppliers to ensure that the network equipment and customer equipment supplied to us meets all applicable regulatory and safety requirements. While there is no definitive evidence of harmful effects from exposure to radiofrequency emissions when the limits imposed by applicable laws and regulations are complied with, additional studies of radiofrequency emissions are ongoing and we cannot be sure that the results of any such future studies will not demonstrate a link between radiofrequency emissions and health problems.

The current concerns over radiofrequency emissions or perceived health risks of exposure to radiofrequency emissions could lead to additional governmental regulation, diminished use of wireless services, including Videotron’s, or expose us to potential litigation. Any of these could have a material adverse effect on our business, prospects, revenues, financial condition and results of operations.

Risks Relating to our Senior Notes and our Capital Structure

Our indebtedness and significant interest payment requirements could adversely affect our financial condition and therefore make it more difficult for us to fulfill our obligations, including our obligations under our Senior Notes.

We currently have a substantial amount of debt and significant interest payment requirements. As at December 31, 2015, we had $3.3 billion of consolidated long-term debt (excluding QMI subordinated loans). Our indebtedness could have significant consequences, including the following:

 

   

increase our vulnerability to general adverse economic and industry conditions;

 

   

require us to dedicate a substantial portion of our cash flow from operations to making interest and principal payments on our indebtedness, reducing the availability of our cash flow to fund capital expenditures, working capital and other general corporate purposes;

 

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limit our flexibility in planning for, or reacting to, changes in our businesses and the industries in which we operate;

 

   

place us at a competitive disadvantage compared to our competitors that have less debt or greater financial resources; and

 

   

limit, along with the financial and other restrictive covenants in our indebtedness, our ability to, among other things, borrow additional funds on commercially reasonable terms, if at all.

Although we have significant indebtedness, as at December 31, 2015, we had approximately $718 million available for additional borrowings under our existing credit facilities on a consolidated basis, and the indentures governing our outstanding Senior Notes which permit us to incur substantial additional indebtedness in the future. If we or our subsidiaries incur additional debt, the risks we now face as a result of our leverage could intensify. For more information regarding our long-term debt and its maturities, refer to Note 18 to our audited consolidated financial statements for the year ended December 31, 2015 included under “Item 18. Financial Statements” of this annual report. See also the risk factor “— Restrictive covenants in our outstanding debt instruments may reduce our operating and financial flexibility, which may prevent us from capitalizing on certain business opportunities.”

Restrictive covenants in our outstanding debt instruments may reduce our operating and financial flexibility, which may prevent us from capitalizing on certain business opportunities.

Our credit facilities and the respective indentures governing our Senior Notes contain a number of operating and financial covenants restricting our ability to, among other things:

 

   

borrow money or sell preferred stock;

 

   

create liens;

 

   

pay dividends on or redeem or repurchase our stock;

 

   

make certain types of investments;

 

   

restrict dividends or other payments from certain of our subsidiaries;

 

   

enter into transactions with affiliates;

 

   

issue guarantees of debt; and

 

   

sell assets or merge with other companies.

If we are unable to comply with these covenants and are unable to obtain waivers from our creditors, we would be unable to make additional borrowings under our credit facilities, our indebtedness under these agreements would be in default and that could, if not cured or waived, result in an acceleration of such indebtedness and cause cross-defaults under our other debt, including our Senior Notes. If our indebtedness is accelerated, we may not be able to repay our indebtedness or borrow sufficient funds to refinance it, and any such prepayment or refinancing could adversely affect our financial condition. In addition, if we incur additional debt in the future or refinance existing debt, we may be subject to additional covenants, which may be more restrictive than those to which we are currently subject. Even if we are able to comply with all applicable covenants, the restrictions on our ability to manage our business in our sole discretion could adversely affect our business by, among other things, limiting our ability to take advantage of financings, mergers, acquisitions and other corporate opportunities that we believe would be beneficial to us.

 

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We may be required from time to time to refinance certain of our indebtedness. Our inability to do so on favorable terms, or at all, could have a material adverse effect on us.

We may be required from time to time to refinance certain of our existing debt at or prior to maturity. Our ability to obtain additional financing to repay such existing debt at maturity will depend upon a number of factors, including prevailing market conditions, credit availability and our operating performance. There can be no assurance that any such financing will be available to us on favorable terms or at all. See also the risk factor “— The volatility and disruptions in the capital and credit markets could adversely affect our business, including the cost of new capital, our ability to refinance our scheduled debt maturities and meet our other obligations as they become due.”

There is no public market for our Senior Notes.

There is currently no established trading market for our issued and outstanding Senior Notes and we do not intend to apply for listing of any of our Senior Notes on any securities exchange or to arrange for any quotation on any automated dealer quotation systems. No assurance can be given as to the prices or liquidity of, or trading markets for, any series of our Senior Notes. The liquidity of any market for our Senior Notes will depend upon the number of holders of our Senior Notes, the interest of securities dealers in making a market in our Senior Notes, prevailing interest rates, the market for similar securities and other factors, including general economic conditions, our financial condition and performance and our prospects. The absence of an active market for our Senior Notes could adversely affect their market price and liquidity.

In addition, the market for non-investment grade debt has historically been subject to disruptions that have caused volatility in prices of securities. It is possible that the market for our Senior Notes will be subject to such disruptions. Any such disruptions may have a negative effect on a holder’s ability to sell our Senior Notes, regardless of our prospects and financial performance.

We may not be able to finance an offer to purchase our Senior Notes in the event of a change of control as required by the respective indentures governing our Senior Notes because we may not have sufficient funds at the time of the change of control or our credit facilities may not allow the repurchases.

If we experience a change of control, as that term is defined in the respective indentures governing our Senior Notes, we may be required to make an offer to repurchase all of our Senior Notes prior to maturity. We can provide no assurance that we will have sufficient funds or be able to arrange for additional financing to repurchase our Senior Notes following such change of control. There is no sinking fund with respect to our outstanding Senior Notes.

In addition, a change of control would be an event of default under our credit facilities. Any future credit agreement or other agreements relating to our indebtedness to which we become a party may contain similar provisions. Our failure to repurchase our Senior Notes if required upon a change of control would, pursuant to the terms of the respective indentures governing our outstanding Senior Notes, constitute an event of default under such indentures. Any such default could, in turn, constitute an event of default under future indebtedness, any of which may cause the related debt to be accelerated after the expiry of any applicable notice or grace periods. If debt were to be accelerated, we may not have sufficient funds to repurchase our Senior Notes and repay the debt.

Canadian bankruptcy and insolvency laws may impair the trustees’ ability to enforce remedies under the indentures governing our Senior Notes or the Senior Notes themselves.

The rights of the trustees, who represent the holders of our Senior Notes, to enforce remedies could be delayed by the restructuring provisions of applicable Canadian federal bankruptcy, insolvency and other restructuring legislation if the benefit of such legislation is sought with respect to us. For example, both the Bankruptcy and Insolvency Act (Canada) (the “ BIA ”) and the Companies’ Creditors Arrangement Act (Canada) (the “ CCAA ”) contain provisions enabling an insolvent person to obtain a stay of proceedings against its creditors and to file a proposal to be voted on by the various classes of its affected creditors. A restructuring proposal, if accepted by the requisite majorities of each affected class of creditors, and if approved by the relevant Canadian court, would be binding on all creditors within each affected class, including those creditors that did not vote to accept the proposal. Moreover, this legislation, in certain instances, permits the insolvent debtor to retain possession and administration of its property, subject to court oversight, even though it may

 

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be in default under the applicable debt instrument, during the period that the stay against proceedings remains in place. In addition, it may be possible in certain circumstances to restructure certain debt obligations under the corporate governing statute applicable to the debtor.

The powers of the court under the BIA, and particularly under the CCAA, have been interpreted and exercised broadly so as to protect a restructuring entity from actions taken by creditors and other parties. Accordingly, we cannot predict whether payments under our outstanding Senior Notes would be made during any proceedings in bankruptcy, insolvency or other restructuring, whether or when the trustees could exercise their respective rights under the respective indentures governing each series of our Senior Notes or whether and to what extent holders of our Senior Notes would be compensated for any delays in payment, if any, of principal, interest and costs, including the fees and disbursements of the respective trustees.

Non-U.S. holders of our Senior Notes are subject to restrictions on the transfer or resale of our Senior Notes.

Although we have registered certain series of our Senior Notes under the Securities Act, we did not, and we do not intend to, qualify our Senior Notes by prospectus in Canada, and, accordingly, the Senior Notes remain subject to restrictions on resale and transfer in Canada. In addition, non-U.S. holders remain subject to restrictions imposed by the jurisdiction in which the holder is resident.

U.S. investors in our Senior Notes may have difficulties enforcing civil liabilities.

We are incorporated under the laws of the Province of Québec. Substantially all of our directors, controlling persons and officers are residents of Canada or other jurisdictions outside the United States, and all or a substantial portion of their assets and substantially all of our assets are located outside the United States. We have agreed, in accordance with the terms of the respective indentures governing each series of our Senior Notes (other than our Canadian-dollar denominated Senior Notes), to accept service of process in any suit, action or proceeding with respect to the indentures or such Senior Notes brought in any federal or state court located in New York City by an agent designated for such purpose, and to submit to the jurisdiction of such courts in connection with such suits, actions or proceedings. However, it may be difficult for holders of our Senior Notes to effect service of process within the United States upon directors, controlling persons, officers and experts who are not residents of the United States or to enforce against us or them in the United States upon judgments of courts of the United States predicated upon civil liability under United States federal or state securities laws or other laws of the United States. In addition, there is doubt as to the enforceability in Canada of liabilities predicated solely upon United States federal or state securities laws against us or against our directors, controlling persons, officers and experts who are not residents of the United States, in original actions or in actions for enforcement of judgments of courts of the United States.

Although our Senior Notes are referred to as “senior notes,” they are effectively subordinated to our secured indebtedness and structurally subordinated to the liabilities of our subsidiaries.

Our Senior Notes are unsecured and, therefore, are effectively subordinated to any secured indebtedness that we may incur to the extent of the assets securing such indebtedness. In the event of a bankruptcy or similar proceeding involving us, the assets that serve as collateral for any secured indebtedness will be available to satisfy the obligations under the secured indebtedness before any payments are made on the Senior Notes. The Senior Notes are effectively subordinated to any borrowings under our senior credit facilities. In addition, our credit facilities and the respective indentures governing our Senior Notes permit us to incur additional secured indebtedness in the future, which could be significant.

We are controlled by Quebecor Media and its interests may differ from those of holders of the Senior Notes.

All of our issued and outstanding common shares are held by Quebecor Media. As a result, Quebecor Media controls our policies and operations. The interests of Quebecor Media, as our sole common shareholder, may conflict with the interests of the holders of our outstanding Senior Notes. In addition, actions taken by Quebecor Media, as well as its financial condition, matters over which we have no control, may affect us.

 

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Also, Quebecor Media is a holding company with no significant assets other than its equity interests in its subsidiaries. Its principal source of cash needed to pay its own obligations is the cash that we and other subsidiaries generate from operations and borrowings. We have the ability to pay significant dividends under the terms of our indebtedness and applicable law and currently expect to make distributions to our shareholder in the future, subject to the terms of our indebtedness and applicable law. See “Item 8. Financial Information — Dividend Policy” elsewhere in this annual report.

ITEM  4 – INFORMATION ON THE CORPORATION

 

A- History and Development of the Corporation

Our legal and commercial name is Videotron Ltd. We were founded on September 1, 1989 and are governed by the Business Corporations Act (Québec). On October 23, 2000, we were acquired by Quebecor Media.

Our registered office is located at 612 St-Jacques Street, Montréal, Québec, Canada H3C 4M8, and our telephone number is (514) 281-1232. Our corporate website may be accessed through the URL http://www.videotron.com . The information found on our corporate website or on any other website to which we refer in this annual report does not, however, form part of this annual report and is not incorporated by reference herein. Our agent for service of process in the United States with respect to our Senior Notes (other than our Senior Notes due 2021, 2025 and 2026) is CT Corporation System, 111 Eighth Avenue, New York, New York 10011.

Since December 31, 2012, we have undertaken and/or completed several business acquisitions, capital expenditures, business development projects and transactions, including, among others, the following:

 

   

We have continued to actively pursue the roll-out of our mobile network. As of December 31, 2015, our mobile telephony services covered the Province of Québec (7.4 million persons) and Eastern Ontario. During 2015, we activated 135,800 net new lines on our advanced mobile network at a pace of approximately 11,300 net new lines per month, bringing our total mobile customer base to 768,600 activated lines.

 

   

On January 7, 2016, we announced the closing of a transaction whereby we acquired Fibrenoire Inc. (“ Fibrenoire ”), a company that provides businesses with fibre-optic connectivity services, for cash consideration of $125.0 million subject to certain adjustments.

 

   

On October 27, 2015, we announced a multi-year $35.0 million expansion of the 4Degrees Colocation data hosting centre located in Québec City, which we acquired in March 2015 for cash consideration of $35.5 million. The project will add two new server rooms to the facility, bringing its square footage to a total of 33,000 square feet. 4Degrees Colocation is one of the few data centres in the Province of Québec to be Tier III certified by the Uptime Institute, an international standard that recognizes maximum reliability and operational sustainability. This expansion follows the $40.0 million investment announcement we made on September 16, 2015, in relation with the construction of a new data centre to be located in Technoparc Montréal which will provide colocation solutions to businesses. The $40.0 million investment will be spread over several years.

 

   

On September 15, 2015, we issued $375.0 million aggregate principal amount of 5  3 / 4 % Senior Notes, maturing on January 15, 2026, for net proceeds of $370.1 million (net of financing expenses). The proceeds of this offering were used to (i) partially repay the amounts outstanding under our senior credit facilities, and (ii) pay transaction fees and expenses.

 

   

On July 16, 2015, we redeemed and retired (i) the entire principal amount outstanding of our 9  1 / 8 % Senior Notes issued on April 15, 2008, and due April 15, 2018, representing an aggregate principal amount of US$75.0 million, and unwound the related hedges in an asset position, and (ii) the entire principal amount outstanding of our 7  1 / 8 % Senior Notes issued on January 13, 2010, and due January 15, 2020, representing an aggregate principal amount of $300.0 million.

 

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On June 16, 2015, we amended our senior credit facilities to (i) increase the amount available under our secured revolving credit facility from $575.0 million to $615.0 million, (ii) extend the maturity of our secured revolving credit facility from July 19, 2018 to July 20, 2020, and (iii) create a new $350.0 million unsecured revolving credit facility maturing on July 20, 2020.

 

   

On May 12, 2015, the predecessor to Innovation, Science and Economic Development Canada announced that we were the successful bidder for eighteen 20 MHz licenses in its 2500 MHz spectrum auction. The operating licenses, acquired for $187.0 million, cover all of the Province of Québec and the largest urban centres in other provinces of Canada, namely Toronto, Ottawa, Calgary, Edmonton and Vancouver, making it possible to reach more than 21 million people, or approximately 65% of Canada’s population.

 

   

On April 10, 2015, we redeemed and retired the entire principal amount outstanding of our 6  3 / 8 % Senior Notes due December 15, 2015, representing an aggregate principal amount of US$175.0 million, and unwound the related hedges in an asset position.

 

   

On March 6, 2015, the predecessor to Innovation, Science and Economic Development Canada announced that we were the successful bidder for four 30 MHz licenses in its AWS-3 commercial mobile spectrum auction. We obtained the 30 MHz licenses for Eastern Québec, Southern Québec, Northern Québec and Eastern Ontario / Outaouais, covering 100% of the population of the Province of Québec and the Ottawa region, for a total price of $31.8 million.

 

   

On September 10, 2014, we launched our LTE mobile network, which reaches nearly 90% of the population of the Province of Québec and supports speed of up to 150 mbps.

 

   

On April 9, 2014, we issued US$600.0 million aggregate principal amount of 5  3 / 8 % Senior Notes, maturing on June 15, 2024, for net proceeds of $654.5 million (net of financing expenses). The proceeds of this offering were used on April 24, 2014 to (i) finance the early redemption and withdrawal of US$260.0 million aggregate principal amount of our outstanding 9  1 / 8 % Senior Notes, issued on March 5, 2009 and maturing on April 15, 2018, (ii) repay borrowings under our revolving credit facility, (iii) pay related fees and expenses, and (iv) the remainder for general corporate purposes.

 

   

On April 3, 2014, after final payment was made on the spectrum awarded in the auction ended February 19, 2014, the predecessor to Innovation, Science and Economic Development Canada issued us seven 700 MHz licenses. The operating licenses, acquired for $233.3 million, cover the entire provinces of Québec, Ontario (except Northern Ontario), Alberta and British Columbia, for a total covered population of more than 28 million, representing approximately 80% of Canada’s population.

 

   

On June 17, 2013, we issued $400.0 million aggregate principal amount of 5  5 / 8 % Senior Notes, maturing on June 15, 2025, for net proceeds of $394.8 million (net of financing expenses). The proceeds of this offering were used on July 2, 2013 to finance the early redemption and withdrawal of US$380.0 million aggregate principal amount of our outstanding 9  1 / 8 % Senior Notes due 2018, and to settle the related hedging contracts.

 

   

On May 31, 2013, we sold our specialized websites Jobboom and Réseau Contact to our parent corporation Quebecor Media for a total consideration of $65.0 million. On the same day, Quebecor Media announced that Mediagrif Interactive Technologies (“ Mediagrif ”) and Quebecor Media reached a definitive agreement pursuant to which Mediagrif acquired Jobboom and Réseau Contact.

 

   

On May 29, 2013, we announced an agreement with Rogers Communications Partnership (“ Rogers ”) for the cooperation and collaboration in the build-out and operation of a shared LTE wireless network in the Province of Québec and the Ottawa region (the “ Rogers LTE Agreement ”). We will both maintain our business independence, including product and service portfolios, billing systems and customer data. As part of the Rogers LTE Agreement, we will provide each other with services for which we will receive $93.0 million and Rogers will receive $200.0 million, payable over a period of 10 years. In addition to the LTE network build-out and sharing agreement, we have also come to an agreement with Rogers regarding our unused AWS spectrum in the Greater Toronto Area. Under this agreement, we have the option to transfer our Toronto spectrum license to Rogers since January 1, 2014, for an aggregate consideration of $180.0 million.

 

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B- Business Overview

Overview

We are the largest cable operator in the Province of Québec and the third largest in Canada, in each case based on the number of cable customers, as well as an Internet service provider and a provider of cable and mobile telephony and OTT video services in the Province of Québec. Our cable network covers approximately 79% of the Province of Québec’s approximately 3.6 million residential premises. The deployment of our LTE network and our enhanced offering of mobile communication services for residential and business customers allow us to consolidate our position as a provider of integrated telecommunication services. Products and services are supported by extensive coaxial, fibre-optic and LTE wireless networks. Since May 1, 2015, the coverage of our LTE network was expanded coast-to-coast through roaming agreements with other wireless service providers.

Videotron Business Solutions is a premier full-service telecommunications provider serving small-, medium- and large-sized businesses, as well as telecommunications carriers. In recent years, we have significantly grown our customer base and have become a leader in the Province of Québec’s business telecommunication segment. Products and services include cable television, Internet, telephony, mobile services and business solutions products such as hosting, private network connectivity, Wi-Fi, audio and video transmission. Through 4Degrees Colocation, we operate a data centre in Québec City which is one of the few data centres in the Province of Québec to be Tier III certified by the Uptime Institute, an international standard that recognizes maximum reliability and operational sustainability. On September 16, 2015, we announced the construction of a 30,000-square-foot data centre in Montréal to provide business customers with the colocation solutions they need for hosting and processing growing quantities of data. On October 27, 2015, we announced the expansion of the data hosting centre in Québec City. The project will add two new server rooms to the facility. More recently, on January 7, 2016, we announced the acquisition of Fibrenoire, a company that provides fibre-optic connectivity services. The transaction will enable Videotron Business Solutions and Fibrenoire to join forces to meet the growing demand from business customers for fibre-optic connectivity.

Competitive Strengths

Leading Market Positions

We are the largest cable operator in the Province of Québec and the third largest in Canada, in each case based on the number of cable customers. We believe that our strong market position has enabled us to launch and deploy new products and services more effectively. For example, since the introduction of our cable Internet access service, we estimate that we have become the largest provider of such service in the areas we serve. Our extensive proprietary and third-party retail distribution network of stores and points of sale, including our Videotron-branded stores and kiosks, assist us in marketing and distributing our advanced telecommunications services, such as cable Internet access, digital television and cable and mobile telephony, on a large scale basis.

Differentiated Bundled Services

Through our technologically advanced wireline and wireless network, we offer a differentiated, bundled suite of entertainment, information and communication services and products, including digital television, cable Internet access, video-on-demand, subscription-based OTT entertainment platform and other interactive television services, as well as residential and commercial cable telephony services using VoIP technology, and mobile telephony services. In addition, we deliver high-quality services and products, including, for example, our standard cable Internet access service which is offered across our footprint and enables our customers to download data at a higher speed than currently offered by standard DSL technology. We also offer the widest range of French-language programming in Canada including content from our illico-on-Demand and Club illico services available on illico Digital TV, illico.tv, illico.tv tablet app (for Android and iOS) and illico mobile platforms. Customers can interrupt and resume programming at will on any of these four illico platforms.

 

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Advanced Broadband Network

We are able to leverage our advanced broadband network, substantially all of which is bi-directional, to offer a wide range of advanced services on the same media, such as digital television, video-on-demand, cable Internet access and cable telephony services. We are committed to maintaining and upgrading our network capacity and, to that end, we currently anticipate that ongoing capital expenditures will be required to accommodate the evolution of our products and services and to meet the demand for increased capacity.

Focused and Highly Reliable Network Cluster

Our single hybrid fibre coaxial clustered network covers approximately 79% of the Province of Québec’s total addressable market and nine of the province’s top ten urban areas. We believe that our single cluster and network architecture provides many benefits, including a higher quality and more reliable network, the ability to launch and deploy new products and services such as Club illico and the illico 4K UHD set-top box, and a lower cost structure through reduced maintenance and technical support costs.

Strong, Market-Focused Management Team

We have a strong, market-focused management team that has extensive experience and expertise in a range of areas, including marketing, finance, telecommunications and technology. Under the leadership of our senior management team, we have, among other things, improved penetration of our HSIA offering, our VoIP telephony services, our cable products and our mobile telephony services, including through the successful build-out and launch of our mobile telephony network.

Products and Services

We currently offer to our customers cable services, mobile telephony services, OTT video services and business telecommunications services.

Cable Services

 

  i. Advanced Cable-Based Products and Services

Our cable network’s large bandwidth is a key factor in the successful delivery of advanced products and services. Several emerging technologies and increasing Internet usage by our customers have presented us with significant opportunities to expand our sources of revenue. We currently offer a variety of advanced products and services, including cable Internet access, digital television, residential telephony and selected interactive services. In 2015, we introduced on the market the very latest in technology: the illico 4K set-top box. This high-tech personal video recorder has a processor 12 times more powerful than the previous generation, thus allowing customers to program up to eight simultaneous recordings and keep up to 115 hours of UHD recording. We intend to continue to develop and deploy additional value-added services to further broaden our service offering.

 

   

Cable Internet Access . Leveraging our advanced cable infrastructure, we offer cable Internet access to our customers primarily via cable modems. We provide this service at download speeds of up to 200 Mbps to more than 85% of our homes passed. As of December 31, 2015, we had 1,568,200 cable Internet access customers, representing 90.3% of our basic customers and 55.9% of our total homes passed. Based on internal estimates, we are the largest provider of Internet access services in the areas we serve with an estimated market share of 53.4% as of December 31, 2015.

 

   

Digital Television. We have installed headend equipment through an hybrid optical fibre and coax network capable of delivering digitally encoded transmissions to a two-way digital set-top box in the customer’s home and premises. This digital connection provides significant advantages. In particular, it increases channel capacity, which allows us to increase both programming and service offerings while providing increased flexibility in packaging our services and a HD quality. All of our television packages include 52 basic television channels, audio services providing digital-quality music, 21 FM radio channels and an interactive

 

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programming guide. Our extended digital television offering allows customers to customize their choices with the ability to choose between custom or pre-assembled packages with a selection of more than 300 additional channels, including U.S. super-stations and other special entertainment programs. This also offers customers significant programming flexibility including the option of French-language only, English-language only or a combination of French- and English-language programming, as well as many foreign-language channels. As of December 31, 2015, we had 1,570,600 customers for our digital television service, representing 90.4% of our total basic customers and 56.0% of our total homes passed.

 

   

Cable Telephony. We offer cable telephony service using VoIP technology. We offer discounts to our customers who subscribe to more than one of our services. As of December 31, 2015, we had 1,316,300 subscribers to our cable telephony service, representing a penetration rate of 75.8% of our basic cable subscribers and 46.9% of our homes passed.

 

   

Video-On-Demand . Video-on-demand service enables digital cable customers to rent content from a library of movies, documentaries and other programming through their digital set-top box, computer, tablet or mobile phone respectively through illico Digital TV, illico.tv, our illico tablet app and illico mobile. Our digital cable customers are able to rent their video-on-demand selections for a period of up to 48 hours, which they are then able to watch at their convenience with full stop, rewind, fast forward, pause and replay functionality during their rental period. In addition, customers can now resume viewing on-demand programming that was paused on either the television, illico.tv, the illico tablet app, or illico mobile, both offered on the iOS and Android platforms. These applications feature a customizable, intuitive interface that brings up selections of content based on the customer’s individual settings and enhances the experience by suggesting personalized themed content. These applications smartly and swiftly highlight any content available from the entire illico catalog, including video-on-demand titles, live television broadcasts or recorded shows, and allow the customer to transfer it directly and seamlessly from their mobile devices to their television. We sometimes group movies, events or TV programs available on video-on-demand and offer them, when available, for a period of seven days. We also offer a substantial amount of video-on-demand content free of charge to our digital cable customers, comprised predominantly of previously aired television programs and youth-oriented programming.

 

   

Pay-Per-View and pay television channels . Pay-Per-View is a group of channels that allows our digital customers to order live events and movies based on a pre-determined schedule. In addition, we offer pay television channels on a subscription basis that permits our customers to access and watch most of the movies available on the linear pay TV channels these customers subscribe to.

 

  ii. Traditional Cable Television Services

Customers subscribing to our traditional analog “basic” and analog “extended basic” services generally receive a line-up of 42 channels of television programming, depending on the bandwidth capacity of their local cable system. We are no longer offering this service to new customers.

As of December 31, 2015, we had 166,300 customers for our analog television service, representing 9.6% of our total basic customers.

Mobile Services

On September 9, 2010, we launched our High Speed Packet Access (“ HSPA ”) mobile communication network (3G) which was upgraded to HSPA+ (4G), on June 30, 2011.

In 2013, we signed a 20-year agreement with Rogers for the cooperation and collaboration in the build-out and operation of a shared LTE wireless network in the Province of Québec and the Ottawa region. In September 2014, we launched our shared LTE wireless network, with Rogers. This shared network delivers an optimal user experience for consumers and businesses. We maintain our business independence throughout this agreement, including our product and service portfolios, billing systems and customer data.

 

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In April 2014, we added Apple’s mobile devices, including the iPhone, to our extensive line-up of mobile handsets, thus enabling us to reach a significantly untapped segment of our addressable market, in particular the young mobile users. Subsequently, we launched new illico applications for iPhone and iPad.

In August 2015, we launched the Unlimited Music service, which allows some mobile customers to stream music through the most popular online platforms without using data from their mobile plan.

In the 700 MHz auction held in 2014, we acquired a package of seven spectrum licenses consisting of a single paired 5+5 MHz spectrum block in the upper 700 MHz band over a geographic territory which encompasses the provinces of Québec, Ontario (excluding the region of Northern Ontario), Alberta and British Columbia, for a total covered population of more than 28 million. The 700 MHz band presents certain superior propagation characteristics and benefits from well-developed LTE equipment and device ecosystems in North America. Ownership of the licenses acquired during the auction held in 2014 enhances our ability to maintain a leading edge, high capacity wireless network in the Province of Québec and in the Ottawa region, and provides us with a number of options to maximize the value of our investment in the rest of Ontario, Alberta and British Columbia.

In the Innovation, Science and Economic Development Canada auction for AWS-3 commercial mobile spectrum held on March 3, 2015, we acquired four 30 MHz licenses for Eastern Québec, Southern Québec, Northern Québec and Eastern Ontario / Outaouais, covering 100% of the population of the Province of Québec and the Ottawa region. This spectrum, which supports LTE technology, will further enhance our ability to maintain a leading-edge, high-capacity wireless network in the Province of Québec and in the Ottawa region.

On May 12, 2015, after the closing of Innovation, Science and Economic Development Canada’s auction for 2500 MHz commercial mobile spectrum, we were declared the successful bidder for eighteen licenses covering all of the Province of Québec as well as the major urban centres in the rest of Canada, including Toronto, Ottawa, Calgary, Edmonton and Vancouver.

As of December 31, 2015, most households and businesses on our cable footprint had access to our advanced mobile services. As of December 31, 2015, there were 768,600 lines activated on our wireless network, representing a year-over-year increase of 135,800 lines (21.5%).

Over-the-top video

Our clients can also benefit from Club illico, our subscription based OTT entertainment platform, offering a rich and varied selection of unlimited, on-demand content (movies, television shows, children’s shows, documentaries, comedy performances and concerts). In late 2013, Club illico began co-producing television series and offering them in their first broadcast window, prior to their linear broadcast. On December 31, 2015, the Club illico service had 257,500 subscribers.

Business Telecommunications Services

Videotron Business Solutions is a premier telecommunications service provider, offering reliable and state-of-the-art mobile telephony, Internet, cable telephony, data and cable television solutions to all business segments: small and medium-sized companies, large corporations and other telecommunications carriers. Through 4Degrees Colocation, we operate a data centre in Québec City which is one of the few data centres in the Province of Québec to be Tier III certified by the Uptime Institute, an international standard that recognizes maximum reliability and operational sustainability.

During 2015, we announced the construction of a new 30,000-square-foot data centre in Montreal that will offer an available load of 16 megawatts. We also announced the expansion of our data centre located in Québec City to 33,000 square feet thereby offering additional cabinet space.

In 2016, with the acquisition of Fibrenoire, we will increase our presence in the growing market of fibre-optic connectivity.

 

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We serve customers with dedicated sales and customer service teams with solid expertise in business services. Videotron Business Solutions relies on its extensive coaxial, fibre optic, LTE wireless networks and data centre to provide the best possible customized solutions to all of its customers.

Customer Statistics Summary

The following table summarizes our customer statistics for our suit of advanced products and services:

 

    

As of December 31,

 
     2015     2014     2013     2012     2011  
     (in thousands of customers)  

Revenue-generating units (RGUs)

     5,647.5        5,479.3        5,242.1        5,019.1        4,757.7   

Mobile Telephony

          

Mobile telephony lines

     768.6        632.8        504.3        403.8        290.7   

Cable Internet

          

Cable Internet customers

     1,568.2        1,537.5        1,506.0        1,444.0        1,359.6   

Penetration (1)

     55.9     55.4     54.9     53.5     51.2

Cable Television

          

Basic customers (2)

     1,736.9        1,782.3        1,825.1        1,855.0        1,861.5   

Penetration (1)

     61.9     64.2     66.5     68.7     70.1

Digital customers (3)

     1,570.6        1,553.6        1,527.4        1,480.9        1,397.6   

Penetration (3)(4)

     90.4     87.2     83.7     79.8     75.1

Cable Telephony

          

Cable telephony lines

     1,316.3        1,349.0        1,348.5        1,316.3        1,245.9   

Penetration (1)

     46.9     48.6     49.2     48.7     46.9

Over-the-top video

          

Over-the-top video customers (3)

     257.5        177.7        58.2                 

Homes passed (5)

     2,806.0        2,777.3        2,742.5        2,701.2        2,657.3   

 

(1) Represents customers as a percentage of total homes passed.
(2) Basic customers are customers who receive basic cable service in either the analog or digital mode.
(3) Customer statistics and their related penetration rates have been restated for the years 2014, 2013, 2012 and 2011 to reflect certain adjustments to product definitions and to add over-the-top video customers.
(4) Represents customers for the digital service as a percentage of basic customers.
(5) Homes passed means the number of residential premises, such as single dwelling units or multiple dwelling units, and commercial premises passed by our cable television distribution network in a given cable system service area in which the programming services are offered.

Pricing of our Products and Services

Our revenues are derived from the monthly fees our customers pay for cable television, Internet and telephony and mobile services. The rates we charge vary based on the market served and the level of service selected. Rates are usually adjusted annually. We also offer discounts to our customers who subscribe to more than one of our services, when compared to the sum of the prices of the individual services provided to these customers. As of December 31, 2015, the average monthly invoice on recurring subscription fees per residential customer was $113.97 (representing a 4% year-over-year increase) and approximately 82% of our customers were bundling two services or more. A one-time installation fee, which may be waived in part during certain promotional periods, is charged to new customers. Monthly fees for rented equipment, such as set-top boxes or Wi-Fi routers, are also charged to customers.

Although our service offerings vary by market, because of differences in the bandwidth capacity of the cable network in each of our markets and other factors, our services are typically offered at monthly price ranges, which reflect discounts for bundled service offerings.

 

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Our Network Technology

Cable

As of December 31, 2015, our cable network consisted of 33,929 km of fibre-optic cable and 45,597 km of coaxial cable, covering approximately 2.8 million homes and serving approximately 2.2 million customers. Our network is the largest broadband network in the Province of Québec covering approximately 79% of households and, according to our estimates, our fibre-optic network is covering approximately 81% of the business customers located in the Province of Québec. Our extensive network supports direct connectivity with networks in Ontario, the Maritimes and the United States.

Our cable television network is comprised of four distinct parts including signal acquisition networks, main headends, distribution networks and subscriber drops. The signal acquisition network picks up a wide variety of television, radio and multimedia signals. These signals and services originate from either a local source or content provider or are picked up from distant sites chosen for satellite or over-the-air reception quality and transmitted to the main headends by way of fibre-optic relay systems. Each main headend processes, modulates, scrambles and combines the signals in order to distribute them throughout the network. Each main headend is connected to the primary headend in order to receive the digital MPEG2/MPEG4 signals and the IP backbone for the Internet services. The first stage of this distribution consists of a fibre-optic link which distributes the signals to distribution or secondary headends. After that, the signal uses the hybrid fibre coaxial cable network made of wide-band optical nodes, amplifiers and coaxial cables capable of serving up to 30 km in radius from the distribution or secondary headends to the subscriber drops. The subscriber drop brings the signal into the customer’s television set directly or, depending on the area or the services selected, through various types of customer equipment including set-top boxes and cable modems.

We have adopted the hybrid fibre coaxial (“ HFC ”) network architecture as the standard for our ongoing system upgrades. HFC network architecture combines the use of both fibre-optic and coaxial cables. Fibre-optic cable has good broadband frequency characteristics, noise immunity and physical durability and can carry hundreds of video and data channels over extended distances. Coaxial cable is less expensive and requires greater signal amplification in order to obtain the desired transmission levels for delivering channels. In most systems, we deliver our signals via fibre-optic cable from the headend to a group of optical nodes and then via coax to the homes passed served by the nodes. We currently build our network by implementing cells of 125 homes (which can evolve to 64 homes). As a result of the modernization of our network in recent years, our network design now provides for average cells of 250 homes throughout our footprint. To allow for this configuration, secondary headends were put into operation in the Greater Montréal Area, in the Greater Québec City Area and in the Greater Gatineau City Area. Remote secondary headends must also be connected with fibre-optic links. From the secondary headends to the homes, the customer services are provided through the transmission of a radiofrequency (“ RF ”) signal which contains both downstream and upstream information (two-way). The loop structure of the two-way HFC networks brings reliability through redundancy, the cell size improves flexibility and capacity, while the reduced number of amplifiers separating the home from the headend improves signal quality and reliability. The HFC network design provided us with significant flexibility to offer customized programming to individual cells, which is critical to our advanced services, such as video-on-demand, Switched Digital Video Broadcast and the continued expansion of our interactive services. Starting in 2008, we began an extensive network modernization effort in the Greater Montréal Area in order to meet the ever expanding service needs of the customer in terms of video, telephony and Internet services. This ongoing modernization implies an extension of the upper limit of the RF spectrum available for service offerings and a deep fibre deployment, which significantly extends the fibre portion in the HFC network (thereby reducing the coax portion). Additional optical nodes were systematically deployed to increase the segmentation of customer cells, both for upstream and downstream traffic. This modernization initiative results in (i) a network architecture where the segmentation for the upstream traffic is for 125 homes while that for the downstream traffic is set to 250 (which can evolve to 125 homes), and (ii) the availability of a 1 GHz spectrum for service offerings. The robustness of the network is greatly enhanced (much less active equipment in the network such as RF amplifiers for the coax portion), the service offering potential and customization to the customer base is significantly improved (through the extension of the spectrum to 1 GHz and the increased segmentation) and allows much greater speeds of transmission for Internet services which are presently unrivalled. The overall architecture employs Division Wavelength Multiplexing, which allows us to limit the amount of fibre required, while providing an effective customization potential. As such, in addition to the broadcast information, up to 24 wavelengths can be combined on a transport fibre from the secondary headend to a 3,000 home aggregation point. Each of these wavelengths is dedicated to the specific requirements of 125

 

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homes. The RF spectrum is set with analog content (to be phased out eventually) and digital information using quadrature amplitude modulation. MPEG video compression techniques and the Data over Cable Service Interface Specification (“ DOCSIS ”) protocol allow us to provide a great service offering of standard definition, HD and now UHD video, as well as complete voice and Internet services. This modernization project gives us flexibility to meet customer needs and future network evolution requirements. The modernization of the Greater Montréal Area network is scheduled to be completed by 2020.

Our strategy of maintaining a leadership position in respect of the suite of products and services that we offer and launching new products and services requires investments in our network to support growth in our customer base and increases in bandwidth requirements. Approximately 99.90% of our network in the Province of Québec has been upgraded to a bandwidth of 750 MHz or greater. Also, in light of the greater availability of HD television and UHD television programming and the ever increasing speed of Internet access, further investment in our network will be required.

Mobile Telephony

As of December 31, 2015, our shared LTE network reached more than 90% of the population of the Province of Québec and the Greater Ottawa Area, allowing the vast majority of our potential clients to have access to the latest mobile services. The vast majority of our towers and transmission equipment being linked through our fibre-optic network using a multiple label switching – or MPLS – protocol, our network is designed to support important customer growth in coming years as well as rapidly evolving mobile technologies.

Our strategy in the coming years is to build on our position as a telecommunication leader with our LTE mobile services and to keep the technology at the cutting edge as it continues to evolve rapidly and new market standards such as LTE-Advanced and heterogeneous networks are being deployed. The Rogers LTE Agreement provides and allows Rogers and us to continue the evolution of the shared LTE network. Our and Rogers’ spectrum contribution will allow us to continue to exploit LTE evolutive technologies and to provide our subscribers with high throughput data connections.

During 2015, we maintained our HSPA+ network throughout the Province of Québec and over the Greater Ottawa Area.

Marketing and Customer Care

Our long term marketing objective is to increase our cash flow through deeper market penetration of our services, development of new services and revenue and operating margin growth per customer. We believe that customers will come to view our cable connection as the best distribution channel to their home for a multitude of services. To achieve this objective, we are pursuing the following strategies:

 

   

develop attractive bundle offers to encourage our customers to subscribe to two or more products, which increases average revenue per user – or ARPU – customer retention and operating margins;

 

   

continue to rapidly deploy advanced products on all our services – cable, Internet, telephony, content and mobile – to maintain and increase our leadership and offer competitive mobile rate plans and products to gain additional market share;

 

   

design product offers that provide greater opportunities for customer entertainment and information;

 

   

develop targeted marketing programs to attract former customers and households that have never subscribed to certain of our services and customers of alternative or competitive services as well as target specific market segments;

 

   

enhance the relationship between customer service representatives and our customers by training and motivating customer service representatives to promote advanced products and services;

 

   

leverage the retail presence of our Videotron-branded stores and kiosks, and third-party commercial retailers;

 

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maintain and promote our leadership in content and entertainment by leveraging the wide variety of services offered within the Quebecor Media group to our existing and future customers;

 

   

introduce new value added packages of products and services, which we believe will increase ARPU and improve customer retention; and

 

   

leverage our business market, using our network and expertise with our commercial customer base, to offer additional bundled services to our customers.

We continue to invest time, effort and financial resources in marketing new and existing services. To increase both customer penetration and the number of services used by our customers, we use integrated marketing techniques, including door-to-door solicitation, telemarketing, drive-to-store, media advertising, e-marketing and direct mail solicitation. Those initiatives are also strongly supported by business intelligence tools such as predictive churn models.

Maximizing customer satisfaction is a key element of our business strategy. In support of our commitment to customer satisfaction, we offer the service of dedicated, knowledgeable and well-trained technical experts which we call our “PROS”, the primary mission of which is to support our customers by helping them get the most out of what we have to offer. Through personalized demonstration sessions, the PROS provide customers with continued customer service after subscription has been made. We continue to provide a 24-hour customer service hotline seven days a week across most of our systems, in addition to our web-based customer service capabilities. All of our customer service representatives and technical support staff are trained to assist customers with all of our products and services, which in turn allows our customers to be served more efficiently and seamlessly. Our customer care representatives continue to receive extensive training to perfect their product knowledge and skills, which contributes to retention of customers and higher levels of customer service. We utilize surveys, focus groups and other research tools to assist us in our marketing efforts and anticipate customer needs. To increase customer loyalty, we are also starting to leverage strategic partnerships to offer exclusive promotions, privileges and contests which contribute in expanding our value proposition to our customers.

Programming

We believe that offering a wide variety of conveniently scheduled programming is an important factor in influencing a customer’s decision to subscribe to and retain our cable services. We devote resources to obtaining access to a wide range of programming that we believe will appeal to both existing and potential customers. We rely on extensive market research, customer demographics and local programming preferences to determine our channel and package offerings. The CRTC currently regulates the distribution of foreign content in Canada and, as a result, we are limited in our ability to provide such programming to our customers. We obtain basic and premium programming from a number of suppliers, including all major Canadian media groups.

Our programming contracts generally provide for a fixed term of up to five years, and are subject to negotiated renewal. Programming tends to be made available to us for a flat fee per customer. Our overall programming costs have increased in recent years and may continue to increase due to factors including, but not limited to, additional programming being provided to customers as a result of system rebuilds that increase channel capacity, increased costs to produce or purchase specialty programming, inflationary or negotiated annual increases, the concentration of broadcasters following recent acquisitions in the market and the significant increased costs of sports content rights.

Competition

We operate in a competitive business environment in the areas of price, product and service offerings and service reliability. We compete with other providers of television signals and other sources of home entertainment. Due to ongoing technological developments, the distinctions among traditional platforms (broadcasting, Internet, and telecommunications) are fading rapidly. The Internet as well as mobile devices are becoming important broadcasting and distribution platforms. In addition, mobile operators, with the development of their respective mobile networks, are now offering wireless and fixed wireless Internet services and our VoIP telephony service is also competing with Internet-based solutions.

 

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Providers of Other Entertainment. Cable systems face competition from alternative methods of distributing and receiving television signals and from other sources of entertainment such as live sporting events, movie theatres and home video products, including digital recorders, OTT content providers, such as Netflix and Apple TV, Blu-ray players and video games. The extent to which a cable television service is competitive depends in significant part upon the cable system’s ability to provide a greater variety of programming, superior technical performance and superior customer service that are available through competitive alternative delivery sources. The introduction of Club illico, our subscription based OTT platform offering a rich and varied selection of unlimited on-demand content, aims to reduce the effect of competition from alternative delivery sources.

 

   

DSL. The deployment of DSL technology provides customers with Internet access at data transmission speeds greater than that available over conventional telephone lines. DSL service provides access speeds that are comparable to low-to-medium speeds of cable-modem Internet access but that decreases with the distance between the DSL modem and the line card.

 

   

FTTN and FTTH. Fibre to the neighborhood (“ FTTN ”) technology addresses the distance limitation by bringing the fibre closer to the end user. The last mile is provided by the DSL technology. Fibre to the home (“ FTTH ”) brings the fibre up to the end user location. The speed is then limited by the end equipment rather than the medium (fibre) itself. It provides speeds comparable to high speeds of cable-modem Internet access. Because of the cost involved with FTTH and FTTN, deployment of these technologies is progressive. The main competition for cable-modem Internet access comes from a provider of DSL and Fibre to the x (FTTx) services.

 

   

Internet Video Streaming. The continuous technology improvement of the Internet, combined with higher download speeds and its affordability, favors the development and deployment of alternative technologies such as digital content offered by OTT service providers through various Internet streaming platforms. While having a positive impact on the demand for our Internet services, this model could adversely impact the demand for our cable television services.

 

   

VDSL. VDSL technology increases the available capacity of DSL lines, thereby allowing the distribution of digital video. Multi-system operators are now facing competition from ILECs, which have been granted licenses to launch video distribution services using this technology, which operates over copper phone lines. The transmission capabilities of VDSL will be significantly boosted with the deployment of technologies such as vectoring (the reduction or elimination of the effects of far-end crosstalk) and twisted pair bonding (use of additional twisted pairs to increase data carriage capacity). Certain ILECs have already started replacing many of their main feeds with fibre-optic cable and positioning VDSL transceivers, a VDSL gateway, in larger multiple-dwelling units, in order to overcome the initial distance limitations of VDSL. With this added capacity, along with the evolution of compression technology, VDSL-2 will offer significant opportunities for services and increase its competitive threat against other multi-system operators.

 

   

Direct Broadcast Satellite . DBS is also a competitor to cable systems. DBS delivers programming via signals sent directly to receiving dishes from medium and high-powered satellites, as opposed to cable delivery transmissions. This form of distribution generally provides more channels than some of our television systems and is fully digital. DBS service can be received virtually anywhere in Canada through the installation of a small rooftop or side-mounted antenna. Like digital cable distribution, DBS systems use video compression technology to increase channel capacity and digital technology to improve the quality of the signals transmitted to their customers.

 

   

Mobile Telephony Services. With our mobile network, we compete against a mix of participants, some of them being active in some or all the products we offer, while others only offer mobile telephony services in our market. The Canadian incumbents have deployed their LTE networks and this technology has become an industry standard.

 

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Private Cable. Additional competition is posed by satellite master antenna television systems known as “SMATV systems” serving multi dwelling units, such as condominiums, apartment complexes, and private residential communities.

 

   

Wireless Distribution. Cable television systems also compete with wireless program distribution services such as MMDS. This technology uses microwave links to transmit signals from multiple transmission sites to line-of-sight antennas located within the customer’s premises.

 

   

Grey and Black Market Providers. Cable and other distributors of television signals continue to face competition from the use of access codes and equipment that enable the unauthorized decoding of encrypted satellite signals, from unauthorized access to our analog and digital cable signals (black market) and from the reception of foreign signals through subscriptions to foreign satellite television providers that are not lawful distributors in Canada (grey market).

 

   

Telephony Service. Our cable telephony service competes against ILECs and other telephony service providers, VoIP telephony service providers and mobile telephony service providers.

 

   

Other Internet Service Providers. In the Internet access business, cable operators compete against other Internet service providers offering residential and commercial Internet access services. The CRTC requires the large Canadian incumbent cable operators to offer access to their high-speed Internet network to competitive Internet service providers at mandated rates.

 

C- Regulation

Ownership and Control of Canadian Broadcast Undertakings

The Canadian Government has directed the CRTC not to issue, amend or renew a broadcasting license to an applicant that is a non-Canadian. Canadian, a defined term in the Direction to the CRTC (Inegibility of Non-Canadians) (the “ Direction to CRTC ”) , means, among other things, a citizen or a permanent resident of Canada or a qualified corporation. A qualified corporation is one incorporated or continued in Canada, of which the chief executive officer and not less than 80% of the directors are Canadian, and not less than 80% of the issued and outstanding voting shares and not less than 80% of the votes are beneficially owned and controlled, directly or indirectly, by Canadians. In addition to the above requirements, Canadians must beneficially own and control, directly or indirectly, not less than 66.6% of the issued and outstanding voting shares and not less than 66.6% of the votes of the parent corporation that controls the subsidiary, and neither the parent corporation nor its directors may exercise control or influence over any programming decisions of the subsidiary if Canadians beneficially own and control less than 80% of the issued and outstanding shares and votes of the parent corporation, if the chief executive officer of the parent corporation is a non-Canadian or if less than 80% of the parent corporation’s directors are Canadian. There are no specific restrictions on the number of non-voting shares which may be owned by non-Canadians. Finally, an applicant seeking to acquire, amend or renew a broadcasting license must not otherwise be controlled in fact by non-Canadians, a question of fact which may be determined by the CRTC in its discretion. Control is defined broadly to mean control in any manner that results in control in fact, whether directly through the ownership of securities or indirectly through a trust, agreement or arrangement, the ownership of a corporation or otherwise. We are a qualified Canadian corporation.

Regulations made under the Broadcasting Act require the prior approval of the CRTC for any transaction that directly or indirectly results in a change in effective control of the licensee of a broadcasting distribution undertaking (“ BDUs ”) or a television programming undertaking (such as a conventional television station, network or pay or specialty undertaking service), or the acquisition of a voting interest above certain specified thresholds.

Diversity of Voices

The CRTC’s Broadcasting Public Notice CRTC 2008-4, entitled “Diversity of Voices,” sets forth the CRTC’s policies with respect to cross-media ownership; the common ownership of television services, including pay and specialty services; the common ownership of BDUs; and the common ownership of over-the-air television and radio undertakings. Pursuant to these policies, the CRTC will generally permit ownership by one person of no more than one conventional

 

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television station in one language in a given market. The CRTC, as a general rule, will not approve applications for a change in the effective control of broadcasting undertakings that would result in the ownership or control, by one person, of a local radio station, a local television station and a local newspaper serving the same market. The CRTC, as a general rule, will not approve applications for a change in effective control that would result in the control, by one person, of a dominant position in the delivery of television services to Canadians that would impact on the diversity of programming available to television audiences. In terms of BDUs, the CRTC, as a general rule, will not approve applications for a change in the effective control of BDUs in a market that would result in one person being in a position to effectively control the delivery of programming services in that market. The CRTC is not prepared to allow one person to control all BDUs in any given market.

Jurisdiction Over Canadian Broadcast Undertakings

Our cable distribution undertakings are subject to the Broadcasting Act and regulations made under the Broadcasting Act that empower the CRTC, subject to directions from the Governor in Council, to regulate and supervise all aspects of the Canadian broadcasting system in order to implement the policy set out in the Broadcasting Act. Certain of our undertakings are also subject to the Radiocommunication Act, which empowers Innovation, Science and Economic Development Canada to establish and administer the technical standards that networks and transmitters must comply with, namely, maintaining the technical quality of signals.

The CRTC has, among other things, the power under the Broadcasting Act and regulations promulgated thereunder to issue, subject to appropriate conditions, amend, renew, suspend and revoke broadcasting licenses, approve certain changes in corporate ownership and control, and establish and oversee compliance with regulations and policies concerning broadcasting, including various programming and distribution requirements, subject to certain directions from the Federal Cabinet.

Broadcasting License Fees

Programming and BDU licensees are subject to annual license fees payable to the CRTC. The license fees consist of two separate fees. One fee allocates the CRTC’s regulatory costs for the year to licensees based on a licensee’s proportion of the gross revenue derived during the year from the licensed activities of all licensees whose gross revenues exceed specific exemption levels (Part I fee). The other fee, also called the Part II license fee, is to be paid on a pro rata basis by all broadcasting undertakings with licensed activity that exceeds $1,500,000. The total annual amount to be assessed by the CRTC is the lower of: (i) $100,000,000, and (ii) 1.365% multiplied by the aggregate fee revenues for the return year terminating during the previous calendar year of all licensees whose fee revenues exceed the applicable exemption levels, less the aggregate exemption level for all those licensees for that return year.

Canadian Broadcasting Distribution (Cable Television)

Licensing of Canadian Broadcasting Distribution Undertakings

A cable distribution undertaking distributes broadcasting services to customers predominantly over closed transmission paths. A license to operate a cable distribution undertaking gives the cable television operator the right to distribute television programming services in its licensed service area. Broadcasting licenses may be issued for periods not exceeding seven years and are usually renewed, except in particular circumstances or in cases of a serious breach of the conditions attached to the license or the regulations of the CRTC. The CRTC is required to hold a public hearing in connection with the issuance, suspension or revocation of a license. We operate 53 cable systems pursuant either to the issuance of a license or of an order that exempts certain network operations from the obligation to hold a license.

Cable systems with 20,000 customers or fewer and operating their own local headend are exempted from the obligation to hold a license pursuant to exemption orders issued by the CRTC on February 15, 2010 (Broadcasting Order CRTC 2009-544). These cable systems are required to comply with a number of programming carriage requirements set out in the exemption order and comply with the Canadian ownership and control requirements in the Direction to the CRTC. We remain with only 8 cable distribution licenses.

 

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In order to conduct our business, we must maintain our broadcasting distribution undertaking licenses in good standing. Failure to meet the terms of our licenses may result in their short-term renewal, suspension, revocation or non-renewal. We have never failed to obtain a license renewal for any cable systems.

Distribution of Canadian Content

The Broadcasting Distribution Regulations issued by the CRTC pursuant to the Broadcasting Act mandate the types of Canadian and non-Canadian programming services that may be distributed by BDUs, including cable television systems. For example, local television stations are subject to “must carry” rules which require terrestrial distributors, such as cable and MMDS operators, to carry these signals and, in some instances, those of regional television stations as part of their basic service. The guaranteed carriage enjoyed by local television broadcasters under the “must carry” rules is designed to ensure that the signals of local broadcasters reach cable households. Furthermore, cable operators, DTH operators and MMDS operators must offer their customers more Canadian programming than non-Canadian programming services. In summary, each cable television system is required to distribute all of the Canadian programming services that the CRTC has determined are appropriate for the market it serves, which includes local and regional television stations, certain specialty channels and pay television channels, and a pay-per-view service, but does not include Category B and mainstream sports Category C digital services.

Broadcasting Distribution Regulations

The Broadcasting Distribution Regulations promote competition among BDUs and the development of new technologies for the distribution of such services while ensuring that quality Canadian programs are broadcast. The Broadcasting Distribution Regulations introduced important new rules, including the following:

 

   

Competition and Carriage Rules . The Broadcasting Distribution Regulations provide equitable opportunities for all distributors of broadcasting services and prohibit a distributor from giving an undue preference to any person, including itself, or subjecting any person to an undue disadvantage. This gives the CRTC the ability to address complaints of anti-competitive behaviour on the part of certain distributors. Signal carriage and substitution requirements are imposed on all cable television systems.

 

   

Contribution to local expression, Canadian programming and community television . All distributors, except systems with fewer than 2,000 customers, are required to contribute at least 5% of their gross annual broadcast revenues to the creation and presentation of Canadian programming including community programming.

 

   

Inside Wiring Rules. The CRTC determined that the inside wiring portion of cable networks creates a bottleneck facility that could affect competition if open access is not provided to other distributors. Incumbent cable companies may retain the ownership of the inside wiring but must allow usage by competitive undertakings to which the cable company may charge a just and reasonable fee for the use of the inside wire. Moreover, the CRTC found that it was appropriate to amend the Broadcasting Distribution Regulations to permit access by subscribers and competing BDUs to inside wire in commercial and institutional properties. Therefore, the CRTC directed all licensees to negotiate appropriate terms and conditions, including a just and reasonable rate, for the use by competitors of the inside wire such licensees own in commercial and institutional properties.

Rates

Our revenue related to cable television is derived mainly from (a) monthly subscription fees for basic cable service; (b) fees for premium services such as specialty services, pay-television, pay-per-view television and video-on-demand; and (c) installation and additional outlets charges.

Pursuant to Broadcasting Regulatory Policy CRTC 2015-96, as of March 1 st , 2016, the CRTC will regulate the fees charged by cable or non-cable BDUs. The price of the entry-level basic service offering will be limited to $25 or less per month.

 

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Vertical Integration

In September 2011, the CRTC released Broadcasting Regulatory Policy CRTC 2011-601 (the “ Policy ”) setting out its decisions on the regulatory framework for vertical integration. Vertical integration refers to the ownership or control by one entity of both programming services, such as conventional television stations or pay and specialty services, as well as distribution services, such as cable systems or DTH satellite services. The Policy: (i) prohibits companies from offering television programs on an exclusive basis to their mobile or Internet subscribers in a manner that they are dependent on the subscription to a specific mobile or retail Internet access service. Any program broadcast on television, including hockey games and other live events, must be made available to competitors under fair and reasonable terms; (ii) allows companies to offer exclusive programming to their Internet or mobile customers provided that it is produced specifically for an Internet portal or a mobile device; and (iii) adopts a code of conduct to prevent anti-competitive behaviour and ensure all distributors, broadcasters and online programming services negotiate in good faith. In Broadcasting Regulatory Policy CRTC 2015-438, the code of conduct was replaced by the Wholesale Code.

Hybrid Video-on-demand (VOD) License

In Broadcasting Regulatory Policy CRTC 2015-86 issued on March 12, 2015, the CRTC considered appropriate to authorize a third category of VOD services based on a hybrid regulatory approach. The CRTC will authorize these hybrid services to operate with the same flexibility as those services operating under the Digital Media Exemption Order (DMEO), provided that this service is delivered and accessed over the Internet without authentication to a BDU or mobile subscription. Club illico qualifies as a hybrid VOD service.

The hybrid VOD services will benefit from the following incentives:

 

   

the ability to offer exclusive programming in the same manner as services operating under the DMEO; and

 

   

the ability to offer their service on a closed BDU network in the same manner as traditional VOD services without the regulatory requirements relating to financial contributions to and shelf space for Canadian programming that would normally be imposed on those traditional VOD services.

New Media Broadcasting Undertakings

Since 2009, the description of a “new media broadcasting undertaking” encompasses all Internet-based and mobile point-to-point broadcasting services, (Broadcasting Order CRTC 2009-660). In 2012, the Supreme Court of Canada upheld the Federal Court of Appeal’s decision to the effect that Internet access providers play a “content-neutral role” in the transmission of data and do not carry on broadcasting activities.

On July 26, 2012, the CRTC amended the Exemption Order for digital media broadcasting undertakings, Broadcasting Order CRTC 2012-409. These amendments implement determinations made by the CRTC in regulatory framework relating to vertical integration (Broadcasting Regulatory Policy CRTC 2011-601). As such, the CRTC implemented the following:

 

   

A “no head start” rule, where the CRTC expects that digital media broadcasting undertakings that intend to provide exclusive access to television programming in a manner that restricts access based on a consumer’s specific mobile or retail Internet access service will provide other digital media broadcasting undertakings with appropriate notice in order to allow these undertakings to exercise their options;

 

   

A provision to preclude undertakings operating under that exemption order from providing exclusive access to programming designed primarily for conventional television, specialty, pay or VOD services in situations where such access to the programming was restricted on the basis of a consumer’s specific mobile or retail Internet access service;

 

   

A standstill rule whereby an undertaking that was in a dispute with another undertaking concerning the terms of carriage of programming or any right or obligation under the Broadcasting Act would be required to continue providing or distributing the service that was subject to the dispute on the same terms and conditions that prevailed before the dispute; and

 

   

A dispute resolution mechanism.

 

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Copyrights Royalties Payment Obligations

We have the obligation to pay copyright royalties set by Tariffs of the Copyright Board of Canada (the “ Copyright Board ”). The Copyright Board establishes the royalties to be paid for the use of certain copyright tariff royalties that Canadian broadcasting undertakings, including cable, television and specialty services, pay to copyright societies (being the organization that administers the rights of several copyright owner). Tariffs certified by the Copyright Board are generally applicable until a public process is held and a decision of the Copyright Board is rendered for a renewed tariff. Renewed tariffs are often applicable retroactively.

The Copyright Act (Canada) (the “ Copyright Act ”) provides for the payment of various royalties, including in respect of the communication to the public of musical works (either through traditional cable services or over the Internet), the retransmission of distant television and radio signals. Distant signal is defined for that purpose in regulations adopted under the authority of the Copyright Act.

The Government of Canada may from time to time make amendments to the Copyright Act to implement Canada’s international treaty obligations and for other purposes. Any such amendments could result in our broadcasting undertakings being required to pay additional tariff royalties.

ISP Liability

In 1996, SOCAN proposed a tariff to be applied against ISPs, in respect of composers’/publishers’ rights in musical works communicated over the Internet to ISPs’ customers. SOCAN’s proposed tariff was challenged by a number of industry groups and companies. In 1999, the Copyright Board decided that ISPs should not be liable for the communication of musical works by their customers, although they might be liable if they themselves operated a musical website. In June 2004, the Supreme Court of Canada upheld this portion of the decision of the Copyright Board and determined that ISPs do not incur liability for copyright content when they engage in normal intermediary activities, including web hosting for third parties and caching. As a consequence, ISPs may, however, be found liable if their conduct leads to the inference that they have authorized a copyright violation. At the end of 2012, amendments to the Copyright Act received royal assent. These amendments clarify ISPs’ liability with respect to acts other than communication to the public by telecommunication, such as reproductions, implements “safe harbours” for the benefit of ISPs, and further put in place a “notice and notice” process to be followed by ISPs, meaning that copyright infringement notices must now be sent to the Internet end-users by ISPs.

Canadian Telecommunications Services

Jurisdiction

The provision of telecommunications services in Canada is regulated by the CRTC pursuant to the Telecommunications Act . The Telecommunications Act provides for the regulation of facilities-based telecommunications common carriers under federal jurisdiction. With certain exceptions, companies that own or operate transmission facilities in Canada that are used to offer telecommunications services to the public for compensation are deemed “telecommunications common carriers” under the Telecommunications Act administered by the CRTC and are subject to regulation. Cable operators offering telecommunications services are deemed “Broadcast Carriers.”

In the Canadian telecommunications market, we operate as a CLEC and a Broadcast Carrier. We also operate our own 4G mobile wireless network and offer services over this network as a Wireless Service Provider (“ WSP ”).

The issuance of licenses for the use of radiofrequency spectrum in Canada is administered by Innovation, Science and Economic Development Canada under the Radiocommunication Act. Use of spectrum is governed by conditions of license which address such matters as license term, transferability and divisibility, technical compliance, lawful interception, research and development requirements, and requirements related to antenna site sharing and mandatory roaming.

 

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Our AWS-1 licenses were issued on December 23, 2008, for a term of ten years. At a minimum of two years before the end of this term, and any subsequent terms, we may apply for license renewal for an additional license term of up to ten years. AWS-1 license renewal, including whether license fees should apply for a subsequent license term, will be subject to a public consultation process initiated in year eight.

Our 700 MHz licenses were issued on April 3, 2014, for a term of 20 years. At the end of this term, we will have a high expectation that new licenses will be issued for a subsequent term through a renewal process unless a breach of license condition has occurred, a fundamental reallocation of spectrum to a new service is required, or an overriding policy need arises. The process for issuing licenses after this term and any issues relating to renewal, including the terms and conditions of the new licenses, will be determined by Innovation, Science and Economic Development Canada following a public consultation.

Our AWS-3 licenses were issued on April 21, 2015, after final payment of our winning bids, and have a term of 20 years. License renewal at the end of this term will be governed by conditions identical to those just described for our 700 MHz licenses.

Our 2500 MHz licences were issued on June 24, 2015, after final payment of our winning bids, and have a term of 20 years. License renewal at the end of this term will be governed by conditions identical to those just described for our 700 MHz and AWS-3 licenses.

Application of Canadian Telecommunications Regulation

In a series of decisions, the CRTC has determined that the carriage of “non-programming” services by a cable company results in that company being regulated as a carrier under the Telecommunications Act. This applies to a company serving its own customers, or allowing a third party to use its distribution network to provide non-programming services to customers, such as providing access to cable Internet services.

In addition, the CRTC regulates the provision of telephony services in Canada.

Elements of the CRTC’s local telecommunications regulatory framework to which we are subject include: interconnection standards and inter-carrier compensation arrangements; the mandatory provision of equal access ( i.e. customer choice of long distance provider); standards for the provision of 911 service, message relay service and certain privacy features; the obligation not to prevent other local exchange carriers from accessing end-users on a timely basis under reasonable terms and conditions in multi dwelling units where we provide service; and the payment of contribution on VoIP revenues for the purposes of the revenue-based contribution regime established by the CRTC to subsidize residential telephone services in rural and remote parts of Canada.

As a CLEC, we are not subject to retail price regulation. ILECs remain subject to retail price regulation in those geographic areas where facilities-based competition is insufficient to protect the interests of consumers. Our ILEC competitors have requested and been granted forbearance from regulation of local exchange services in the vast majority of residential markets in which we compete, as well as in a large number of business markets, including all of the largest metropolitan markets in the Province of Québec.

Right to Access to Telecommunications and Support Structures

The CRTC has concluded that some provisions of the Telecommunications Act may be characterized as encouraging joint use of existing support structures of telephone utilities to facilitate efficient deployment of cable distribution undertakings by Canadian carriers. We access these support structures in exchange for a tariff that is regulated by the CRTC. If it were not possible to agree on the use or conditions of access with a support structure owner, we could apply to the CRTC for a right of access to a supporting structure of a telephone utility. The Supreme Court of Canada, however, held on May 16, 2003, that the CRTC does not have jurisdiction under the Telecommunications Act to establish the terms and conditions of access to the support structures of hydro-electricity utilities. Terms of access to the support structures of hydro-electricity utilities must therefore be negotiated with those utilities.

 

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We have entered into comprehensive support structure access agreements with all of the major hydro-electric companies and all of the major telecommunications companies in its service territory.

Right to Access to Municipal Rights-of-Way

Pursuant to sections 42, 43 and 44 of the Telecommunications Act, the CRTC possesses certain construction and expropriation powers related to the installation, operation and maintenance of telecommunication facilities. In the past, most notably in Telecom Decision CRTC 2001-23, the CRTC has used these powers to grant Canadian carriers access to municipal rights-of-way under terms and conditions set out in a municipal access agreement.

We have outstanding disputes with several Québec municipalities related to the use of municipal rights-of-way. Should these disputes not be resolved to the mutual satisfaction of the parties, and should they be referred to the CRTC for resolution, the outcome of which could have a material impact on our costs for municipal access for our wireline facilities.

Access by Third Parties to Cable Networks

In Canada, access to the Internet is a telecommunications service. While Internet access services are not regulated on a retail (price and terms of service) basis, Internet access for third-party ISPs is mandated and tariffed according to conditions approved by the CRTC for cable operators.

The largest cable operators in Canada, including Videotron, have been required by the CRTC to provide third-party ISPs with access to their cable systems at mandated cost-based rates. At the same time we offer any new retail Internet service speed, we are required to file proposed revisions to our third party Internet access (or “ TPIA ”) tariff to include this new speed offering. TPIA tariff items have been filed and approved for all Videotron Internet service speeds. Several third party ISPs are interconnected to our cable network and are thereby providing retail Internet access services.

The CRTC also requires the large cable carriers, such as us, to allow third party ISPs to provide telephony and networking (LAS/VPN) applications services in addition to retail Internet access services.

In a decision issued on July 22, 2015, the CRTC ordered substantial changes to the framework for the provision of wholesale services to third-party ISPs. The provision of aggregated services will no longer be mandated and will be phased out in conjunction with the implementation of a new mandatory disaggregated service which will involve third-party ISPs provisioning their own regional transport services. This disaggregated service will also include, for the first time, mandated access to high-speed services provided over fibre-access facilities, including the fibre-access facilities of the large incumbent telephone companies. As a result of this decision, we may experience increased competition for retail cable Internet and telephony customers. In addition, because our third-party Internet access rates are regulated by the CRTC, we could be limited in our ability to recover our costs associated with providing this access.

On October 20, 2015, Bell Canada filed a petition requesting the Governor in Council to modify the CRTC’s wholesale policy framework decision to exclude high-speed services provided over fibre-access facilities and DOCSIS 3.1 access facilities. The Governor in Council may, within one year of the date of the original decision, vary or rescind the decision or refer it back to the CRTC for reconsideration of all or a portion of it. Any of these actions, if taken, could have an impact on the competitive environment emerging from the decision.

Regulatory Framework for Mobile Wireless Services

In June 2013, the predecessor to Innovation, Science and Economic Development Canada published its new framework relating to transfers, divisions and subordinate licensing of spectrum licenses for commercial mobile spectrum. The framework sets out a series of considerations and criteria for reviewing license transfers and prospective transfers, while refraining from imposing specific quantitative or other approval thresholds. Among the considerations and criteria are: the current license holdings of the applicants in the licensed area, the overall distribution of holdings in the band and other commercial mobile bands in the licensed area, the availability of alternative spectrum, and the degree to which the applicants have deployed networks. The framework also sets out review procedures and timelines (normally 12 weeks from the time of receipt of all required information) and establishes a definition of “deemed transfers” subject to review. The new framework applies to license transfers and prospective transfers on or after the date of publication, and therefore will apply if and when we exercise our option to sell our Toronto AWS-1 license to Rogers under the Rogers LTE Agreement.

 

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The CRTC also regulates mobile wireless services under the Telecommunications Act . On August 12, 1994, the CRTC released a decision forbearing from the exercise of most of its powers under the Telecommunications Act as they relate to mobile wireless service. However, the CRTC did maintain its ability to require conditions governing customer confidential information and to place other general conditions on the provision of mobile wireless service. Since 1994, the CRTC has exercised this power, for example, to mandate wireless number portability, and to require all WSPs to upgrade their networks to more precisely determine the location of a person using a mobile phone to call 911.

The new Wireless Code was published on June 3, 2013 and came into force on December 2, 2013. It includes, among other things, a limit on early cancellation fees to ensure customers can take advantage of competitive offers at least every two years, as well as measures requiring service providers to unlock wireless devices, to offer a trial period for wireless contracts, and to set default caps on data overage charges and data roaming charges.

On July 31, 2014, after an investigation that confirmed instances of unjust discrimination and undue preference by one incumbent wireless carrier, the CRTC took action to prohibit exclusivity provisions in wholesale mobile wireless roaming agreements between Canadian carriers for service in Canada. Subsequently, on May 5, 2015, after a broader follow-up proceeding, the CRTC issued a comprehensive policy framework for the provision of wholesale wireless services, including roaming, tower sharing and mobile virtual network operator (MVNO) access services. Most notably, the CRTC decided that each of the three national wireless incumbent carriers would be obliged to provide wholesale roaming services to regional and new entrant carriers at cost-based rates. A tariff proceeding is currently underway to determine these rates. The CRTC elected not to order cost-based rates for either tower sharing or MVNO access services. The result of the wholesale roaming tariff proceeding may have an impact on Videotron’s roaming cost structure and on the types of retail packages it is able to offer its customers in this regard.

On December 17, 2014, the Government of Canada’s second omnibus budget implementation bill for 2014 (C-43) received Royal Assent. This bill amends both the Telecommunications Act and the Radiocommunication Act to give the CRTC and Innovation, Science and Economic Development Canada the option to impose monetary penalties on companies that violate established rules such as the Wireless Code and those related to the deployment of spectrum, services to rural areas and tower sharing.

Municipal Siting Processes for Wireless Antenna Systems

On February 28, 2013, the Canadian Wireless Telecommunications Association, of which we are a member, and the Federation of Canadian Municipalities signed a joint protocol on the siting process for wireless antenna systems. The protocol establishes a more comprehensive notification and consultation process than current regulations, and emphasizes the need for meaningful pre-consultation to ensure local land use priorities and sensitivities are fully reflected in the location and design of new antenna systems. Telecommunications carriers have agreed for the first time to notify municipalities of all antennas being installed before their construction, regardless of height, and to undertake full public consultation for towers under 15 meters - whenever deemed necessary by the municipality.

On June 26, 2014, the predecessor to Innovation, Science and Economic Development Canada announced changes to the policy guiding the installation of new antenna towers, most notably to require companies to consult communities on all commercial tower installations regardless of height and to ensure residents are well informed of upcoming consultations. These changes are largely consistent with the joint protocol cited above.

D- Organizational Structure

We are a wholly-owned subsidiary of Quebecor Media. Quebecor Media is a 81.1% owned subsidiary of Quebecor. The remaining 18.9% of Quebecor Media is owned by a subsidiary of CDPQ, one of Canada’s largest pension fund managers. The following chart illustrates our corporate structure as of March 18, 2015, including our significant subsidiaries, together with the jurisdiction of incorporation or organization of each entity. In each case, unless otherwise indicated, we own a 100% equity and voting interest in our subsidiaries).

 

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LOGO

E- Property, Plants and Equipment

Our corporate offices are located in leased space at 612 St-Jacques Street, Montréal, Québec, Canada H3C 4M8, (187,592 square feet) in the same building as Quebecor Media’s head office.

We also own or lease several buildings in Montréal and in Québec City, as indicated in the following table which presents, for each building, the address, the leased or owned status of the property, the primary use of the main facilities and the approximate square footage. In addition to the buildings indicated in the following table, we own or lease a significant number of smaller locations for signal reception sites, customer service and business offices.

 

Address

 

Owned/Leased Property

 

Use of Property

  Floor Space
Occupied

(approximate sq. ft.)
   

Montréal, Québec

2155 Pie IX Street

  Owned property  

Office and Technical spaces,

Headend

  128,000  

Montréal, Québec

150 Beaubien Street

  Owned property  

Office and Technical spaces,

Headend

  72,000  

Montréal, Québec

800 de la Gauchetière Street

  Leased property   Office space   52,000  

Montréal, Québec

4545 Frontenac Street

  Leased property  

Office space, Warehouse,

Headend

  54,000  

Montréal, Québec

888 De Maisonneuve Street

  Leased property   Office space   49,000  

Québec City, Québec

2200 Jean-Perrin Street

  Owned property  

Regional Headend for the

Québec City region and Office space

  40,000  

Québec City, Québec

2675 Parc Technologique

Blvd.

  Owned property   Data Centre and Office space   47,000 (1)  

 

(1) This number includes an additional 23,000 square feet that is currently under construction.

 

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Liens and Charges

Our senior secured credit facilities are secured by charges over all of our assets and those of most of our subsidiaries.

Intellectual Property

We use a number of trademarks for our products and services. Many of these trademarks are registered by us in the appropriate jurisdictions. In addition, we have legal rights in the unregistered marks arising from their use. We have taken affirmative legal steps to protect our trademarks and we believe our trademarks are adequately protected.

Environment

Our operations are subject to Canadian, provincial and municipal laws and regulations concerning, among other things, emissions to the air, water and sewer discharge, handling and disposal of hazardous materials, the recycling of waste, the soil remediation of contaminated sites, or otherwise relating to the protection of the environment. Laws and regulations relating to workplace safety and worker health, which among other things, regulate employee exposure to hazardous substances in the workplace, also govern our operations.

Compliance with these laws has not had, and management does not expect it to have, a material effect upon our capital expenditures, net income or competitive position. Environmental laws and regulations and the interpretation of such laws and regulations, however, have changed rapidly in recent years and may continue to do so in the future. We have monitored the changes closely and have modified our practices where necessary or appropriate.

Our past and current properties, as well as areas surrounding those properties, particularly those in areas of long-term industrial use, may have had historic uses, or may have current uses, in the case of surrounding properties, which may affect our properties and require further study or remedial measures.

We are not currently conducting or planning any material study or remedial measure. Furthermore, we cannot provide assurance that all environmental liabilities have been determined, that any prior owner of our properties did not create a material environmental condition not known to us, that a material environmental condition does not otherwise exist as to any such property, or that expenditure will not be required to deal with known or unknown contamination.

ITEM 4A – UNRESOLVED STAFF COMMENTS

None.

 

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ITEM 5 - OPERATING AND FINANCIAL REVIEW AND PROSPECTS

The following Management Discussion and Analysis (“MD&A”) provides information concerning the operating results and financial condition of Videotron Ltd (“Videotron”, the “Corporation”, “we” or “our”). This discussion should be read in conjunction with our consolidated financial statements and accompanying notes. The Corporation’s consolidated financial statements have been prepared in accordance with International Financial Reporting Standards (“IFRS”), as issued by the International Accounting Standards Board.

All amounts are in Canadian dollars, unless otherwise indicated. This discussion contains forward-looking statements, which are subject to a variety of factors that could cause actual results to differ materially from those contemplated by these statements. Factors that could cause or contribute to these differences include, but are not limited to, those discussed under “Cautionary Statement Regarding Forward-Looking Statements” and in “Item 3. Key Information – Risk Factors.”

Due to rounding, minor differences may exist between amounts shown in this MD&A and the consolidated financial statements.

CORPORATE PROFILE

We are a wholly owned subsidiary of Quebecor Media Inc. (“Quebecor Media”), incorporated under the Business Corporations Act (Québec). We are the largest cable operator in the Province of Québec and the third-largest in Canada, based on the number of cable customers, as well as being a major cable Internet service and telephony services provider in the Province of Québec. Our cable network covers approximately 79% of the Province of Québec’s approximately 3.6 million residential and commercial premises. The deployment of our LTE network and our enhanced offering of mobile communication services for residential and business customers allow us to consolidate our position as a provider of integrated telecommunication services.

Videotron Business Solutions is a premier full-service telecommunications provider serving small and medium-sized and large-sized businesses, as well as telecommunications carriers. Products and services for small and medium-sized businesses are supported by extensive coaxial, fiber optic and LTE wireless networks.

Videotron’s primary sources of revenue include: subscriptions for cable television, Internet access, cable and mobile telephony services, over-the-top (“OTT”) video services and business solutions services.

TREND INFORMATION

Competition continues to be intense in the cable and alternative multichannel broadcast distribution industry and in the mobile telephony market. Moreover, the significant subscriber growth recorded in past years is not necessarily indicative of future growth due to penetration rates currently reached.

The Corporation requires substantial capital for the upgrade, expansion and maintenance of its wireline and wireless networks, the launch and expansion of new and additional services to support growth in its customer base and demand for increased bandwidth capacity and other services. The Corporation expects that additional capital expenditures will be required in the short and medium term in order to expand and upgrade systems and services, including expenditures relating to advancements in Internet access and ultra-high definition television (“UHD”) and TV everywhere/every platform requiring IP delivery technology, as well as the cost of its mobile services` infrastructure deployment, maintenance and enhancement.

Moreover, the demand for wireless data services has been growing at unprecedented rates and it is projected that this demand will further accelerate. The anticipated levels of data traffic will represent a growing challenge to the current wireless network’s ability to serve this traffic. The Corporation may have to acquire additional spectrum, if available, in order to address this increased demand.

HIGHLIGHTS SINCE DECEMBER 31, 2014

 

   

In 2015, revenues and ARPU grew 6.1% and 8.4%, respectively, compared to 2014.

 

   

Net growth of 168,200 revenue-generating units (“RGUs”) in 2015 (representing the total of our cable television, cable Internet and over-the-top video subscribers as well as cable and mobile telephony lines), compared with 237,200 net RGUs added in 2014. Total RGUs were 5,647,500 as of December 31, 2015.

 

   

We activated 135,800 net new lines on our mobile telephony service, the largest annual increase since 2011, bringing our total mobile customer base to 768,600 lines.

 

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Videotron received two honourable distinctions in 2015. For the second consecutive year, according to an Ipsos-Infopresse study, Videotron was ranked Québec’s most influential brand in the industry. In addition, for the tenth consecutive year, according to market research firm Léger, Videotron was ranked Québec’s most admired company in the telecommunication industry.

 

   

On January 7, 2016, Videotron announced the acquisition of Fibrenoire Inc. (“Fibrenoire”), a company that provides fibre-optic connectivity services, for a cash consideration of $125.0 million, subject to certain adjustments. The transaction will enable Videotron Business Solutions and Fibrenoire to join forces to continue to meet the growing demand from business customers for fibre-optic connectivity.

 

   

On October 27, 2015, Videotron announced a $35.0 million expansion, spread over several years, of the 4Degrees Colocation Inc. (“4Degrees Colocation”) data hosting centre in Québec City, acquired for a net amount of $35.3 million on March 11, 2015. The project will add two new server rooms to the facility. Also, on September 16, 2015, Videotron announced the construction of a 30,000-square-foot data centre in Montréal to provide business customers with the colocation solutions they need for hosting and processing the growing quantities of data. The $40.0 million investment will also be spread over several years.

 

   

On October 15, 2015, the Supreme Court of Canada rejected Bell ExpressVu Limited Partnership’s (“Bell ExpressVu”) application for leave to appeal the Québec Court of Appeal judgment rendered on March 6, 2015 relating to Bell ExpressVu’s negligence in failing to implement an appropriate security system to prevent piracy of the signals broadcast by its satellite television service between 1999 and 2005, thereby harming its competitors and broadcasters. Accordingly, on October 19, 2015, Bell ExpressVu paid to the Corporation an amount of $138.4 million, including interest.

 

   

On September 15, 2015, the Corporation announced the closing of its issuance and sale of $375.0 million aggregate principal amount of 5.75% Senior Notes, due in January 2026, for net proceeds of $370.1 million, net of financing fees of $4.9 million. The Corporation used the proceeds to partially repay the amounts outstanding under its revolving credit facilities and to pay transaction fees and expenses.

 

   

On August 27, 2015, we launched the Unlimited Music service, which allows certain mobile customers to stream music through the most popular online platforms without counting data from their mobile plan.

 

   

On August 11, 2015, we introduced the brand-new illico 4K set-top box. Packed with innovative features, it is 12 times more powerful than an illico TV new generation set-top box, providing 4 times faster navigation speed and storing up to 115 hours of ultra-high definition content.

 

   

On June 16, 2015, we issued a notice of redemption for all of our outstanding 7.125% Senior Notes due January 15, 2020, for an aggregate principal amount of $300.0 million. On July 16, 2015, the Senior Notes were redeemed.

 

   

On June 16, 2015, we issued a notice of redemption for all of our outstanding 9.125% Senior Notes due April 15, 2018, for an aggregate principal amount of US$75.0 million. On July 16, 2015, the Senior Notes were redeemed and the related hedging contracts were settled.

 

   

On June 16, 2015, we increased our secured revolving credit facility from $575.0 million to $615.0 million and extended its maturity date to July, 20, 2020. Furthermore, we entered into a new unsecured revolving credit facility of $350.0 million maturing in July 2020. The terms and conditions of the new unsecured credit facility are similar to those of our secured revolving.

 

   

On May 12, 2015, we acquired eighteen 20 MHz licences in the auction for 2500 MHz commercial mobile spectrum, covering the province of Québec and the largest urban centres in other provinces of Canada: Toronto, Ottawa, Calgary, Edmonton and Vancouver, for a total price of $187.0 million, or $0.42/MHz-pop.

 

   

On April 14, 2015, less than a year after launching our LTE wireless network, we announced the widest coverage across Canada through strategic partnerships, starting May 13, 2015.

 

   

On April 7, 2015, we announced our sponsorship of the new arena in Québec City which is now known as the Videotron Centre.

 

   

On March 11, 2015, we issued a notice of redemption for all of our outstanding 6.375% Senior Notes due December 15, 2015, for an aggregate principal amount of US$175.0 million. On April 10, 2015, the Senior Notes were redeemed and the related hedging contracts were settled.

 

   

On March 6, 2015, Industry Canada, now known as Innovation, Science, and Economic Development Canada, announced that the Corporation was the successful bidder for four 30 MHz licences in the auction for AWS-3 commercial mobile spectrum. Videotron acquired the licences for Eastern Québec, Southern Québec, Northern Québec and Eastern Ontario / Outaouais, covering 100% of Québec’s population and the Ottawa area, for a total price of $31.8 million, or $0.11/MHz-pop.

 

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NON-IFRS FINANCIAL MEASURES

The non-IFRS financial measures used by the Corporation to assess its financial performance, such as adjusted operating income and adjusted operating income margin are not calculated in accordance with, or recognized by IFRS. The Corporation’s method of calculating these non-IFRS financial measures may differ from methods used by other companies and, as a result, the non-IFRS financial measures presented in this document may not be comparable to other similarly titled measures disclosed by other companies.

Adjusted Operating Income Margin

The Corporation defines adjusted operating income margin as the adjusted operating income expressed as a percentage of revenues under IFRS.

Adjusted Operating Income

The Corporation defines adjusted operating income, as reconciled to net income under IFRS, as net income before depreciation and amortization, financial expenses, gain or loss on valuation and translation of financial instruments, gain or loss on debt refinancing, gain or loss on litigation, restructuring of operations and other items, income taxes and income from discontinued operations. Adjusted operating income as defined above is not a measure of results that is consistent with IFRS. It is not intended to be regarded as an alternative to other financial operating performance measures or to the consolidated statement of cash flows as a measure of liquidity and should not be considered in isolation or as a substitute for measures of performance prepared in accordance with IFRS. Our management and Board of Directors use this measure in evaluating our consolidated results. As such, this measure eliminates the effect of significant levels of non-cash charges related to the depreciation of tangible assets and amortization of certain intangible assets and is unaffected by the capital structure or investment activities of the Corporation. Adjusted operating income is also relevant because it is a significant component of our annual incentive compensation programs. A limitation of this measure, however, is that it does not reflect the periodic costs of tangible and intangible assets used in generating revenues. Our definition of adjusted operating income may not be the same as similarly titled measures reported by other companies.

KEY PERFORMANCE INDICATOR

Average Monthly Revenue per User

ARPU is an industry metric that the Corporation uses to measure its monthly cable television, Internet access, cable and mobile telephony and OTT video services revenues per average basic cable customer. ARPU is not a measurement that is calculated in accordance with IFRS and the Corporation’s definition and calculation of ARPU may not be the same as identically titled measurements reported by other companies. The Corporation calculates ARPU by dividing its combined cable television, Internet access, cable and mobile telephony and OTT video services revenues by the average number of basic cable customers during the applicable period, and then dividing the resulting amount by the number of months in the applicable period.

 

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Table 1 below presents a reconciliation of adjusted operating income to net income as disclosed in our consolidated financial statements. The consolidated income statement data for the three-month periods ended December 31, 2015 and 2014 is derived from the unaudited consolidated statements and are not included in this annual report.

Table 1

Reconciliation of the adjusted operating income measure used in this report to the net income measure used in the consolidated financial statements

(in millions of dollars)

 

     Three - month period  ended
December 31
    Twelve - month period ended
December 31
 
     2015     2014     2015     2014     2013  

Adjusted operating income

   $ 347.8      $ 343.9      $ 1,382.4      $ 1,348.3      $ 1,284.7   

Depreciation and amortization

     (158.3     (158.2     (625.4     (601.4     (561.7

Financial expenses

     (43.0     (43.4     (167.4     (169.2     (174.1

Loss on valuation and translation of financial instruments

     (3.8     (5.0     (0.5     (3.4     (163.7

Loss on debt refinancing

     —          —          (12.2     (21.4     (18.9

(Loss)/ gain on litigation restructuring of operations and other items

     (3.5     (38.5     129.7        (39.4     (0.7

Income taxes

     (22.6     (29.2     (120.7     (93.3     (29.4

Income from discontinued operations

     —          —          —          —          40.7   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Net income

   $ 116.6      $ 69.6      $ 585.9      $ 420.2      $ 376.9   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Analysis of Consolidated Results of Videotron

2015/2014 Year Comparison

Customer Statistics

Revenue-generating units – As of December 31, 2015, the total number of revenue-generating units stood at 5,647,500, an increase of 168,200 (3.1%) in 2015, compared with an increase of 237,200 (4.5%) in 2014.

Mobile telephony services – As of December 31, 2015, 768,600 lines were activated on our wireless telephony network, an increase of 135,800 (21.5%) in 2015, compared with an increase of 128,500 (25.5%) in 2014.

Cable Internet access services – The number of subscribers to cable Internet access services stood at 1,568,200 as at the end of 2015, an increase of 30,700 (2.0%) in 2015, compared with an increase of 31,500 (2.1%) in 2014. Our cable Internet access services household penetration rate (number of subscribers as a proportion of the 2,806,000 total homes passed) was 55.9% as of December 31, 2015, compared with 55.4% as of December 31, 2014.

Cable television services – Our combined customer base for cable television services decreased by 45,400 (2.5%) in 2015, compared with a decrease of 42,800 (2.3%) in 2014. As of December 31, 2015, our cable network household penetration rate was 61.9%, compared with 64.2% a year earlier.

 

   

The number of subscribers to illico Digital TV stood at 1,570,600 as at the end of 2015, an increase of 17,000 (1.1%) in 2015, compared with an increase of 26,400 (1.7%) in 2014. As of December 31, 2015, 90.4% of our cable television customers were subscribers to our illico Digital TV services, compared with 87.2% as of December 31, 2014. Our illico Digital TV household penetration rate was 56.0% as of December 31, 2015, compared with 55.9% as of December 31, 2014.

 

   

The customer base for analog cable television services decreased by 62,400 (27.3%) in 2015, compared with a decrease of 69,000 customers (23.2%) in 2014.

 

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Cable telephony services – The number of cable telephony lines stood at 1,316,300 as at the end of 2015, a decrease of 32,700 (2.4%) in 2015, compared with an increase of 500 (0.1%) in 2014. Our cable telephony services household penetration rate was 46.9% as of December 31, 2015, compared with 48.6% as of December 31, 2014.

Over-the-top video services – The number of subscribers to over-the-top video services stood at 257,500 as at the end of 2015, an increase of 79,800 (44.9%) in 2015, compared with an increase of 119,500 (205.3%) in 2014.

Table 2

End-of-year customer numbers

(in thousands of customers)

 

     2015      2014      2013      2012      2011  

Mobile telephony 1

     768.6         632.8         504.3         403.8         290.7   

Cable Internet

     1,568.2         1,537.5         1,506.0         1,444.0         1,359.6   

Cable television:

              

Analog 2

     166.3         228.7         297.7         374.1         463.9   

Digital 2

     1,570.6         1,553.6         1,527.4         1,480.9         1,397.6   
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 
     1,736.9         1,782.3         1,825.1         1,855.0         1,861.5   

Cable telephony 1

     1,316.3         1,349.0         1,348.5         1,316.3         1,245.9   

Over-the-top video 2

     257.5         177.7         58.2                   
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

Revenue-generating units (RGUs)

     5,647.5         5,479.3         5,242.1         5,019.1         4,757.7   
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

 

1  

In thousands of lines.

2  

Customer statistics have been restated for the years 2011, 2012, 2013 and 2014 to reflect certain adjustments to product definitions and to add over-the-top video customers.

2015/2014 Analysis of Results

Revenues : $3.0 billion, an increase of $171.2 million (6.1%) compared with 2014.

Revenues from mobile telephony services increased by $116.0 million (40.3%) to $403.7 million, essentially due to customer growth and higher revenues per line.

Revenues from Internet access services increased by $64.6 million (7.5%) to $920.7 million. The favourable variance was mainly due to subscriber plans mix, increased usage, higher revenues from Internet access resellers and subscriber growth.

Revenues from cable television services decreased by $21.0 million (2.0%) to $1.05 billion, primarily due to net customer base erosion, however partially offset by higher revenues per customer.

Revenues from cable telephony services decreased by $17.1 million (3.6%) to $458.0 million. This decrease was mainly due to net customer base erosion, lower revenues per residential line and lower long distance call revenues, partially offset by higher revenues from business customers.

Revenues from over-the-top video services increased by $11.4 million (93.4%) to $23.6 million, essentially due to customer growth.

Revenues from business solutions increased by $3.5 million (5.3%) to $69.1 million, mainly due to the new revenues generated through the acquisition and integration of 4Degrees Colocation.

Revenues from equipment sales increased by $12.0 million (26.3%) to $57.6 million, mainly due to higher sales of mobile devices.

Other revenues increased by $1.8 million (18.8%) in 2015 to $11.4 million.

Monthly ARPU : $135.68 in 2015, compared with $125.16 in 2014, an increase of $10.52 (8.4%). This growth is mainly explained by an increase in revenues from mobile telephony and Internet access services, as detailed above.

 

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Adjusted operating income: $1.40 billion in 2015, an increase of $34.1 million (2.5%).

 

   

This increase was primarily due to:

 

  ¡    

revenue increase, as detailed above.

Partially offset by:

 

  ¡    

increase in operating expenses such as professional fees, engineering costs, call centre costs and marketing costs;

 

  ¡    

increase in losses on sale of mobile devices;

 

  ¡    

increase in programming fees, including the impact of a non-recurring adjustment of $7.2 million recorded in 2014; and

 

  ¡    

unfavourable variances of $13.9 million related to other non-recurring items, including $10.6 million related to provisions on litigations.

Purchase of goods and services, expressed as a percentage of revenues: 42.0% in 2015, compared with 40.2% in 2014.

 

   

Purchase of goods and services expenses as a proportion of revenues increased, primarily due to:

 

  ¡    

increase in losses on sale of mobile devices; and

 

  ¡    

unfavourable variance of $21.1 million related to non-recurring items.

Employee costs, expressed as a percentage of revenues: 11.9% in 2015, compared with 12.1% in 2014.

 

   

Employee costs as a proportion of revenues decreased slightly as revenues grew more rapidly.

Depreciation and amortization charge : $625.4 million, an increase of $24.0 million (4.0%) over 2014.

 

   

The increase was mainly due to:

 

  ¡    

increase in assets related to our wireless LTE network launched in September 2014; and

 

  ¡    

increase in illico Digital TV set-top boxes related to our rental program.

Partially offset by:

 

  ¡    

a change in the assessment of the useful life of our spectrum licences, resulting in the cessation of the amortization of those assets during the second quarter of 2015.

Financial expenses (primarily comprised of interest on long-term debt): $167.4 million, a decrease of $1.8 million (1.1%) over 2014.

 

   

The decrease was mainly due to:

 

  ¡    

$14.2 million decrease in interest on long-term debt, mainly due to lower interest rates on our indebtedness.

Partially offset by:

 

  ¡    

$5.7 million unfavourable variance in other financial expenses, mainly due to interest charges on legal provisions recorded during the year, and lower interest revenues on cash and cash equivalents;

 

  ¡    

$3.0 million increase in loss on foreign currency translation of short-term monetary items, due to a weaker Canadian currency;

 

  ¡    

$2.5 million decrease in net dividend income from the parent corporation, due to changes in tax consolidation arrangements; and

 

  ¡    

$1.9 million increase in interest costs on defined benefit plans.

Gain or loss on valuation and translation of financial instruments : Loss of $0.5 million in 2015, compared with a loss of $3.4 million in 2014, a favourable variance of $2.9 million.

 

   

The change was mainly due to a $3.1 million loss on financial instruments for which hedge accounting was not used recorded in 2014 and a favourable variance in the fair value of early settlement options, caused by fluctuations in valuation assumptions, including interest rates and credit premiums implicit in the adjusted prices of the underlying instruments.

 

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Gain or loss on litigation, restructuring of operations and other items : $129.7 million gain recorded in 2015, compared with a $39.4 million loss in 2014, a favourable variance of $169.1 million.

 

   

This variation is mainly due to:

 

  ¡    

the gain on litigation of $138.4 million recorded in 2015;

 

  ¡    

the loss on litigation of $34.3 million recorded in 2014; and

 

  ¡    

an increase in charges related to the gradual decommissioning of our analog cable television network infrastructure.

Income tax expense : $120.7 million (effective tax rate of 17.1%) in 2015, compared with $93.3 million (effective tax rate of 18.2%) in 2014.

 

   

The increase of $27.4 million was mainly due to:

 

  ¡    

$51.9 million related to an increase in taxable income.

Partially offset by:

 

  ¡    

$16.1 million in light of developments in tax audits, jurisprudence and tax legislation; and

 

  ¡    

$11.1 million related to other non-taxable or non-deductible items and other items.

Net income attributable to shareholder : $585.9 million, an increase of $165.7 million (39.4%).

 

   

The increase was mainly due to:

 

  ¡    

$169.1 million favourable variance in gain or loss on litigation, restructuring of operations and other items;

 

  ¡    

$34.1 million increase in adjusted operating income;

 

  ¡    

$9.2 million favourable variance in gain or loss on debt refinancing;

 

  ¡    

$2.9 million favourable variance in gain or loss on valuation and translation of financial instruments; and

 

  ¡    

$1.8 million decrease in financial expenses.

Partially offset by:

 

  ¡    

$27.4 million increase in income taxes; and

 

  ¡    

$24.0 million increase in depreciation and amortization charges.

2015/2014 Fourth Quarter Comparison

Customer statistics

Revenue-generating units 41,600 (0.7%) increase in the fourth quarter of 2015, compared with an increase of 59,100 (1.1%) in the same period of 2014.

Mobile telephony services – As of December 31, 2015, 768,600 lines were activated on our mobile telephony services, an increase of 26,100 (3.5%) in the quarter, compared with an increase of 42,400 (7.2%) in the same period of 2014.

Cable Internet access services – The number of subscribers to cable Internet access services stood at 1,568,200 as at the end of the fourth quarter of 2015, an increase of 8,700 (0.6%) in the quarter, compared with an increase of 3,700 (0.2%) in the same period of 2014.

Cable television services – The combined customer base for cable television services decreased by 9,000 (0.5%) in the fourth quarter of 2015, compared with a decrease of 14,000 (0.8%) in the same period of 2014.

 

   

The number of subscribers to illico Digital TV stood at 1,570,600 as at the end of the fourth quarter of 2015, an increase of 6,000 (0.4%) during the quarter, compared with an increase of 8,700 (0.6%) in the same period of 2014.

 

   

The customer base for analog cable television services decreased by 15,000 (8.3%) in the fourth quarter of 2015, compared with a decrease of 22,700 customers (9.1%) in the same period of 2014, primarily as a result of customer migration to illico Digital TV.

Cable telephony services – The number of cable telephony lines stood at 1,316,300 as at the end of the fourth quarter of 2015, a decrease of 13,200 (1.0%) in the quarter, compared with a decrease of 7,000 (0.5%) in the same period of 2014.

 

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Over-the-top video services The number of subscribers to over-the-top video services stood at 257,500 as at the end of the fourth quarter of 2015, an increase of 29,000 (12.7%) in the quarter, compared with an increase of 34,000 (23.7%) during the same period of 2014.

2015/2014 Fourth Quarter Analysis of Results

Revenues : $774.8 million, an increase of $44.6 million (6.1%) compared with the fourth quarter of 2014.

Revenues from mobile telephony services increased by $28.0 million (33.5%) to $111.5 million, essentially due to customer growth and higher revenues per line.

Revenues from Internet access services increased by $22.0 million (10.1%) to $239.5 million. The favourable variance was mainly due to subscriber plans mix, increased usage, higher revenues from Internet access resellers and subscriber growth.

Revenues from cable television services decreased by $4.7 million (1.8%) to $263.5 million, mainly due to net customer base erosion, however partially offset by higher revenues per customer.

Revenues from cable telephony service decreased by $9.1 million (7.5%) to $111.5 million. This decrease was mainly due to lower revenues per residential line, net customer base erosion, and lower long distance call revenues, partially offset by higher revenues from business customers.

Revenues from over-the-top video services increased by $2.2 million (45.8%) to $7.0 million, essentially due to customer growth.

Revenues from business solutions increased by $1.3 million (7.7%) to $18.1 million, mainly due to the new revenues generated through the acquisition and integration of 4Degrees Colocation. Revenues from equipment sales increased by $4.0 million (24.2%) to $20.5 million, mainly due to higher sales of mobiles devices.

Other revenues increased by $0.6 million (24.0%) in the fourth quarter to $3.1 million.

Monthly ARPU : $140.19 in the fourth quarter of 2015, compared with $129.36 in the same period of 2014, an increase of $10.83 (8.4%). This growth is mainly explained by an increase in revenues from mobile telephony and Internet access services, as detailed above.

Adjusted operating income : $347.8 million in the fourth quarter of 2015, an increase of $3.9 million (1.1%) compared to the same quarter of 2014.

 

   

This increase was primarily due to:

 

  ¡    

revenue increase, as detailed above.

Partially offset by:

 

  ¡    

increase in programming fees, including the impact of a non-recurring adjustment of $7.2 million recorded in 2014;

 

  ¡    

unfavourable variances of $4.6 million related to other non-recurring items, including $2.7 million related to provisions on litigation;

 

  ¡    

increase in operating expenses such as professional fees, marketing costs and engineering costs; and

 

  ¡    

increase in losses on sale of mobile devices.

Purchase of goods and services, expressed as a percentage of revenues: 43.3% in 2015, compared with 40.8% in 2014.

 

   

Purchase of goods and services expenses as a proportion of revenues increased, primarily due to:

 

  ¡    

unfavourable variance of $11.9 million related to non-recurring items; and

 

  ¡    

increase in losses on sale of mobile devices.

Employee costs, expressed as a percentage of revenues: 11.8% in 2015, compared with 12.1% in 2014.

 

   

Employee costs as a proportion of revenues decreased slightly as revenues grew more rapidly.

Depreciation and amortization charge : $158.3 million, an increase of $0.1 million (0.1%), compared with 2014.

 

   

The increase was mainly due to:

 

  ¡    

increase in illico Digital TV set-top boxes related to our rental program; and

 

  ¡    

increase in assets related to our wireless LTE network launched in September 2014.

 

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Largely offset by:

 

  ¡    

a change in the assessment of the useful life of our spectrum licences, resulting in the cessation of the amortization of those assets during the second quarter of 2015.

Financial expenses (primarily comprised of interest on long-term debt): $43.0 million in 2015, a decrease of $0.4 million (0.9%) compared with 2014.

 

   

The decrease was mainly due to:

 

  ¡    

$3.8 million decrease in interest on long-term debt, mainly due to lower interest rates on our indebtedness; and

 

  ¡    

$1.2 million decrease in loss on foreign currency translation of short-term monetary items.

Partially offset by:

 

  ¡    

$4.2 million unfavourable variance in other financial expenses, mainly due to interest charges on legal provisions recorded during the year, and lower interest revenues on cash and cash equivalents.

Gain or loss on valuation and translation of financial instruments : $3.8 million loss in the fourth quarter of 2015, compared with a $5.0 million loss in the same quarter of 2014, a favourable variance of $1.2 million.

 

   

The positive variance was mainly due to the variance in the fair value of early settlement options caused by fluctuations in valuation assumptions, including interest rates and credit premiums implicit in the adjusted prices of the underlying instruments.

Gain or loss on litigation, restructuring of operations and other items: $3.5 million loss recorded in the fourth quarter of 2015, compared with a $38.5 million loss in the same quarter of 2014.

 

   

The favourable variance of $35.0 million is mainly due to a $34.3 million charge recorded in 2014 as a result of an unfavourable judgment against the Corporation in a legal action.

Income tax expense : $22.6 million (effective tax rate of 16.3%) in the fourth quarter of 2015, compared with $29.2 million (effective tax rate of 29.6%) in the same quarter of 2014.

 

   

The favourable variance of $6.6 million was mainly due to:

 

  ¡    

$11.1 million related to other non-taxable or non-deductible items, and other items; and

 

  ¡    

$4.8 million related to changes in tax consolidation arrangements with our parent corporation and affiliated corporations.

Partially offset by:

 

  ¡    

$10.9 million related to the increase in taxable income.

Net income attributable to shareholder : $116.6 million, an increase of $47.0 million (67.6%).

 

   

The increase was mainly due to:

 

  ¡    

$35.0 million favourable variance in gain or loss on litigation, restructuring of operations and other items;

 

  ¡    

$6.6 million decrease in income taxes expense;

 

  ¡    

$3.9 million increase in adjusted operating income;

 

  ¡    

$1.2 million favourable variance in gain or loss on valuation and translation of financial instruments; and

 

  ¡    

$0.4 million decrease in financial expenses.

Partially offset by:

 

  ¡    

$0.1 million increase in depreciation and amortization charges.

 

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2014/2013 Year Comparison

Customer Statistics

Revenue-generating units – As of December 31, 2014, the total number of revenue-generating units stood at 5,479,300, an increase of 237,200 (4.5%) in 2014, compared with an increase of 223,000 (4.4%) in 2013.

Mobile telephony services – As of December 31, 2014, 632,800 lines were activated on our wireless telephony network, an increase of 128,500 (25.5%) in 2014, compared with an increase of 100,500 (24.9%) in 2013.

Cable Internet access services – The number of subscribers to cable Internet access services stood at 1,537,500 as at the end of 2014, an increase of 31,500 (2.1%) in 2014, compared with an increase of 62,000 (4.3%) in 2013. Our cable Internet access services household penetration rate (number of subscribers as a proportion of the 2,777,300 total homes passed) was 55.4% as of December 31, 2014, compared with 54.9% as of December 31, 2013.

Cable television services – Our combined customer base for cable television services decreased by 42,800 (2.3%) in 2014, compared with a decrease of 29,900 (1.6%) in 2013. Our cable network household penetration rate was 64.2% as of December 31, 2014, compared with 66.5% a year earlier.

 

   

The number of subscribers to illico Digital TV stood at 1,553,600 as at the end of 2014, an increase of 26,200 (1.7%) in 2014, compared with an increase of 46,500 (3.1%) in 2013. As of December 31, 2014, 87.2% of our cable television customers were subscribers to our illico Digital TV services, compared with 83.7% as of December 31, 2013. Our illico Digital TV household penetration rate was 55.9% as of December 31, 2014, compared with 55.7% as of December 31, 2013.

 

   

The customer base for analog cable television services decreased by 69,000 (23.2%) in 2014, compared with a decrease of 76,400 customers (20.4%) in 2013, mainly as a result of customer migration to illico Digital TV services.

Cable telephony services – The number of cable telephony lines stood at 1,349,000 as at the end of 2014, an increase of 500 (0.1%) in 2014, compared with an increase of 32,200 (2.4%) in 2013. Our cable telephony services household penetration rate was 48.6% as of December 31, 2014, compared with 49.2% as of December 31, 2013.

Over-the-top video services – The number of subscribers to over-the-top video services stood at 177,700 as at the end of 2014, an increase of 119,500 (205.3%) in 2014, compared with an increase of 58,200 in 2013.

2014/2013 Analysis of Results

Revenues : $2,826.8 million, an increase of $115.0 million (4.2%) compared with 2013.

Revenues from mobile telephony services increased by $67.1 million (30.4%) to $287.7 million, essentially due to customer growth.

Revenues from Internet access services increased by $41.4 million (5.1%) to $856.1 million. The favourable variance was mainly due to increased usage, higher revenues from Internet access resellers, customer base growth and higher revenues per customer.

Revenues from cable television services decreased by $15.5 million (1.4%) to $1,074.8 million mainly due to a decrease in our combined customer base for cable television services, as detailed above.

Revenues from cable telephony services increased by $1.3 million (0.3%) to $475.1 million. This increase was mainly due to price increases and customer growth, partly offset by a decrease in long distance call revenues.

Revenues from over-the-top video services increased by $8.5 million (229.7%) to $12.2 million, essentially due to customer growth.

Revenues from business solutions increased by $2.1 million (3.3%) to $65.6 million.

Revenues from equipment sales increased by $9.1 million (24.9%) to $45.6 million, mainly due to mobile devices.

Other revenues increased by 0.8 million (9.1%) in 2014 at $9.6 million.

Monthly ARPU : $125.16 in 2014, compared with $118.03 in 2013, an increase of $7.13 (6.0%). This growth is mainly explained by an increase in revenues from mobile telephony and Internet access services, as detailed above.

 

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Adjusted operating income : $1,348.3 million in 2014, an increase of $63.6 million (5.0%).

 

   

This increase was primarily due to:

 

  ¡    

revenue increase, as detailed above;

 

  ¡    

non-recurring adjustment of $7.2 million related to programming fees; and

 

  ¡    

net decrease in employee costs due to higher capitalization to fixed assets and intangible assets, mainly as the result of an increase in investments in our LTE network.

Partially offset by:

 

  ¡    

increase in marketing costs;

 

  ¡    

non-recurring adjustments recorded in the second quarter of 2013 mainly related to CRTC licence fees; and

 

  ¡    

increase in losses on sale of mobile devices.

Purchase of goods and services, expressed as a percentage of revenues: 40.2% in 2014, compared with 39.8% in 2013.

 

   

Purchase of goods and services expenses as a proportion of revenues increased, primarily due to:

 

  ¡    

increase in losses on sale of mobile devices;

 

  ¡    

increase in marketing costs; and

 

  ¡    

non-recurring adjustments recorded in the second quarter of 2013 mainly related to CRTC licence fees.

Employee costs, expressed as a percentage of revenues: 12.1% in 2014, compared with 12.8% in 2013.

 

   

Employee costs as a proportion of revenues decreased slightly as revenues grew more rapidly.

Depreciation and amortization charge : $601.4 million, an increase of $39.7 million (7.1%) over 2013.

 

   

The increase was mainly due to:

 

  ¡    

increase in illico Digital TV set-top boxes related to our rental program;

 

  ¡    

increase in fixed assets related to cable Internet access services and to the upgrade and expansion of our wireline and wireless networks; and

 

  ¡    

increase in assets related to our wireless LTE network launched in September 2014.

Financial expenses (primarily comprised of interest on long-term debt): $169.2 million, a decrease of $4.9 million (2.8%) over 2013.

 

   

The decrease was mainly due to:

 

  ¡    

$2.8 million decrease in interest costs on defined benefit plans; and

 

  ¡    

$2.5 million decrease in interest on long-term debt, mainly due to lower interest rates on our indebtedness; partially offset by higher indebtedness.

Partially offset by:

 

  ¡    

$1.2 million increase in loss on foreign currency translation of short-term monetary items.

Gain or loss on valuation and translation of financial instruments : Loss of $3.4 million in 2014, compared with a loss of $163.7 million in 2013, a favourable variance of $160.3 million.

 

   

The change was mainly due to the variance in the fair value of early settlement options caused by fluctuations in valuation assumptions, including interest rates and credit premiums implicit in the adjusted prices of the underlying instruments, and to the favourable variation on loss on reversal of embedded derivatives upon debt redemption.

Gain or loss on litigation, restructuring of operations and other items : $39.4 million expense recorded in 2014, compared with $0.7 million in 2013.

 

   

The increase of $38.7 million was mainly due to a $34.3 million charge recorded in 2014 as a result of an unfavourable judgment against the Corporation in a legal action.

 

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I ncome tax expense : $93.3 million (effective tax rate of 18.2%) in 2014, compared with $29.4 million (effective tax rate of 8.1%) in 2013.

 

   

The increase of $63.9 million was mainly due to:

 

  ¡    

$39.8 million related to an increase in taxable income;

 

  ¡    

$12.5 million related to other non-taxable or non-deductible items and other items; and

 

  ¡    

$9.9 million related to changes in tax consolidation arrangements with our parent corporation and affiliated corporations.

Net income attributable to shareholder : $420.2 million, an increase of $43.7 million (11.6%).

 

   

The increase was mainly due to:

 

  ¡    

$160.3 million favourable variance in gain or loss on valuation and translation of financial instruments;

 

  ¡    

$63.6 million increase in adjusted operating income; and

 

  ¡    

$4.9 million decrease in financial expenses.

Partially offset by:

 

  ¡    

$63.9 million increase in income taxes;

 

  ¡    

$40.7 million decrease in income from discontinued operations;

 

  ¡    

$39.7 million increase in depreciation and amortization charges;

 

  ¡    

$38.7 million increase in gain or loss on litigation, restructuring of operations and other items; and

 

  ¡    

$2.5 million unfavourable variance in gain or loss on debt refinancing.

 

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CASH FLOW AND FINANCIAL POSITION

This section provides an analysis of sources and uses of cash flows, as well as a financial position analysis as of the balance sheet date. This section should be read in conjunction with the discussions on trends under “Trend Information” above and on the Corporation’s financial risks under “Financial Instruments and Financial Risk Management” below.

Operating activities

2015 Financial Year

Cash flows provided by operating activities: $1,208.0 million in 2015, compared with $1,106.5 million in 2014, an increase of $101.5 million (9.2%).

 

   

The increase was mainly due to:

 

  ¡    

$169.1 million favourable variance in gain or loss on litigation, restructuring of operations and other items, as discussed above;

 

  ¡    

$53.4 million decrease in current income tax expenses;

 

  ¡    

$34.1 million increase in adjusted operating income; and

 

  ¡    

$2.7 million favourable variance on cash interest expenses.

Partially offset by:

 

  ¡    

$158.2 million unfavourable variance in non-cash balances related to operations, mainly due to an increase in inventories, payment of outstanding income tax balances and a decrease in current income taxes.

Working capital: Negative $380.9 million as of December 31, 2015, compared with negative $332.0 million as of December 31, 2014. The difference mainly reflects the payment of $218.8 million for 2500 MHz and AWS-3 spectrum licences acquired during the year, cash outflows from debt redemption transactions and distributions paid to the parent corporation; partially offset by the net cash inflow from share capital issuance, the cash inflow from the gain on the litigation with Bell ExpressVu, the decrease in income taxes payable and the cash inflows from debt issuance and revolving credit facility drawings.

2014 Financial Year

Cash flows provided by operating activities: $1,106.5 million in 2014, compared with $1,058.3 million in 2013, an increase of $48.2 million (4.6%).

 

   

The increase was mainly due to:

 

  ¡    

$63.6 million increase in adjusted operating income;

 

  ¡    

$45.7 million favourable variance in non-cash balances related to operations, mainly due to a $83.5 million favourable a net variation in accounts payable, accrued charges and provisions; partially offset by a $70.0 million unfavourable net variation in income taxes payable; and

 

  ¡    

$5.6 million favourable variance on other items.

Partially offset by:

 

  ¡    

$38.8 million increase in gain or loss on litigation, restructuring of operations and other items; and

 

  ¡    

$28.0 million increase in current income tax expenses.

Working capital: Negative $332.0 million as of December 31, 2014, compared with negative $195.4 million as of December 31, 2013. The difference mainly reflects the reclassification to short-term liabilities of our US$175 million Senior Notes due in December 2015 and a $34.3 million provision recorded due to an unfavourable judgment against the Corporation; partially offset by the impact of the settlement of the derivative financial instruments in January 2014.

 

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Investing Activities

2015 Financial Year

Additions to fixed assets: $630.1 million in 2015, compared with $606.0 million in 2014. The increase is mainly explained by our illico Digital set-top boxes rental program and investments in our data centers following the acquisition of 4Degrees Colocation, as well as investments related to our wireless LTE network.

Additions to intangible assets: $312.1 million in 2015, compared with $304.5 million in 2014. The variance is due to higher investments in various software upgrade projects. In 2015, the Corporation disbursed $218.8 million for the acquisition of spectrum licences ($217.4 million in 2014).

Business acquisition: In March 2015, the Corporation acquired 4 Degrees Colocation and its data center for a total consideration of $35.2 million, net of cash acquired and working capital adjustments. This acquisition will enable the Corporation to continue to meet its business customers’ growing technological and hosting needs.

Net proceeds from business disposal: In 2015, $7.8 million net proceeds from the sale to our parent corporation of the specialized web site reseaucontact.com that occurred in November 2013.

2014 Financial Year

Additions to fixed assets: $606.0 million in 2014, compared with $530.9 million in 2013. The increase is mainly explained by investments made on our wireless LTE network and our Internet infrastructure.

Additions to intangible assets: $304.5 million in 2014, compared with $67.6 million in 2013. In 2014, the Corporation acquired 700 MHz wireless operating licenses, for which total payments of $217.4 million were made during the year ($15.9 million in 2013). The variance is also due to various software upgrade projects and licence purchases made in 2014, in addition to the development of our LTE technology platform.

Proceeds from disposal of assets: $5.5 million in 2014, compared with $12.8 million in 2013. The decrease of $7.7 million is mainly explained by significant disposals recorded in 2013.

Financing Activities

2015 Financial Year

Consolidated debt (long-term debt plus bank indebtedness): $353.8 million increase in 2015.

 

   

Summary of debt increases in 2015:

 

  ¡    

issuance, on September 15, 2015, of $375.0 million aggregate principal amount of Senior Notes for net proceeds of $370.1 million, net of financing fees of $4.9 million. The Notes bear interest at 5.75% per annum and mature on January 15, 2026;

 

  ¡    

$246.7 million drawings on our revolving credit facilities;

 

  ¡    

$337.8 million unfavourable impact of exchange rate fluctuations. This increase in long-term debt is offset by a decrease in the liability (or an increase in the asset) related to cross-currency interest rate swaps, recorded under “Derivative financial instruments”; and

 

  ¡    

$11.7 million net change in bank indebtedness.

 

   

Summary of debt reductions during the same period:

 

  ¡    

redemption and retirement, on April 10, 2015, of all of our outstanding 6.375% Senior Notes due in December 2015, for a total aggregate notional amount of US$175.0 million;

 

  ¡    

redemption and retirement, on July 16, 2015, of all of our outstanding 9.125% Senior Notes due in April 2018, for a total aggregate notional amount of US$75.0 million;

 

  ¡    

redemption and retirement, on July 16, 2015, of all of our outstanding 7.125% Senior Notes due in January 2020, for a total aggregate notional amount of $300.0 million; and

 

  ¡    

repayment of $10.7 million of borrowings under a bank credit facility.

 

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Assets and liabilities related to derivative financial instruments : Net asset of $494.2 million as of December 31, 2015, compared with a net asset of $111.2 million as of December 31, 2014, a $383.0 million favourable variance.

 

   

The variance was mainly due to:

 

  ¡    

favourable net impact of exchange rate and interest rate fluctuations on the value of derivative financial instruments; and

 

  ¡    

early settlement of an offsetting foreign exchange forward contract used in conjunction with cross-currency interest rate swaps to hedge the foreign exchange risk exposure on US$441.4 million of notional amount on our 5.375% Senior Notes maturing on June 15, 2024.

Partially offset by:

 

  ¡    

settlement, on April 10, 2015, of hedging contracts in an asset position related to the redemption of our 6.375% Senior Notes; and

 

  ¡    

settlement, on July 16, 2015, of hedging contracts in an asset position related to the redemption of our 9.125% Senior Notes.

Dividends: Net increase of $255.0 million in cash distributions to our parent corporation in 2015 compared with 2014.

2014 Financial Year

Consolidated debt (long-term debt plus bank borrowings): $525.4 million increase in 2014.

 

   

Summary of debt increases in 2014:

 

  ¡    

issuance, on April 9, 2014, of US$600.0 million aggregate principal amount of Senior Notes for net proceeds of $654.5 million, net of financing fees of $7.8 million. The Notes bear interest at 5.375% per annum and mature on June 15, 2024;

 

  ¡    

$145.1 million unfavourable impact of exchange rate fluctuations. This increase in long-term debt is offset by a decrease in the liability (or an increase in the asset) related to cross-currency interest rate swaps, recorded under “Derivative financial instruments”; and

 

  ¡    

$8.2 million adjustment to record the change in the fair value of long-term debt related to hedged interest rate risk.

 

   

Summary of debt reductions during the same period:

 

  ¡    

redemption and retirement, on April 24, 2014, of US$260.0 million aggregate principal amount of 9.125% Senior Notes due in April 2018; and

 

  ¡    

repayment of $10.7 million of borrowings under a bank credit facility.

Assets and liabilities related to derivative financial instruments : Net asset of $111.2 million as of December 31, 2014, compared with a net liability of $163.9 million as of December 31, 2013. This $275.1 million favourable variance was due primarily to the settlement of hedging contracts in January 2014 and to the favourable net impact of exchange rate and interest rate fluctuations on the value of derivative financial instruments.

Dividends: Net increase of $48.1 million in cash distributions to our parent corporation in 2014 compared with 2013.

 

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Financial Position as of December 31, 2015

Net available liquid assets: $706.3 million for the Corporation and its wholly owned subsidiaries, consisting of $11.7 million in bank indebtedness and $718.0 million in unused availabilities under credit facilities.

Uses of Liquidity and Capital Resources

Our principal liquidity and capital resource requirements consist of:

 

   

capital expenditures to maintain and upgrade our network in order to support the growth in our customer base and the launch and expansion of new or additional services, including the expansion and upgrade of our wireless network;

 

   

servicing and repayment of debt;

 

   

tax consolidation arrangements; and

 

   

distributions to our shareholder.

Capital expenditures : $942.1 million in 2015, an increase of $31.6 million (3.5%) compared with 2014.

 

   

The increase was mainly due to:

 

  ¡    

Our illico Digital set-top boxes rental program; and

 

  ¡    

The investments made on our wireless LTE network and the data centers following the acquisition of 4Degrees Colocation.

Table 3

Additions to fixed and intangible assets

(in millions of dollars)

 

     2015      2014      2013  

Customer premises equipment

   $ 239.1       $ 220.5       $ 231.5   

Scalable infrastructure

     253.5         233.2         162.2   

Line extensions

     58.7         59.1         52.9   

Upgrade/rebuild

     62.9         74.6         66.1   

Support capital and other

     327.9         323.1         85.8   
  

 

 

    

 

 

    

 

 

 

Total additions to fixed and intangible assets

   $ 942.1       $ 910.5       $ 598.5   
  

 

 

    

 

 

    

 

 

 

Consolidated long-term debt (long-term debt plus bank indebtedness) : $3,278.3 million as of December 31, 2015, an increase of $353.8 million; $383.0 million favourable net variance in assets and liabilities related to derivative financial instruments (see “Financing Activities” above).

As of December 31, 2015, mandatory debt repayments on the Corporation’s long-term debt in the coming years are as follows:

Table 4

Minimum principal payments on Videotron’s long-term debt

12 months ending December 31

(in millions of dollars)

 

2016

   $ 10.7   

2017

     10.7   

2018

     5.4   

2019

       

2020

     246.7   

2021 and thereafter

     3,012.6   
  

 

 

 

Total

   $ 3,286.1   
  

 

 

 

 

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The weighted average term of Videotron’s consolidated debt was approximately 7.6 years as of December 31, 2015 (7.3 years as of December 31, 2014). The debt consisted of approximately 84.0% fixed-rate debt (85.0% as of December 31, 2014) and 16.0% floating-rate debt (15.0% as of December 31, 2014).

Videotron’s management believes that cash flows from continuing operations and available sources of financing should be sufficient to cover committed cash requirements for capital investments, including investments required for our wireline and wireless networks, working capital, interest payments, debt repayments, pension plan contributions, and dividends and distributions in the future. Videotron has access to cash flows generated by its subsidiaries through dividends and cash advances paid by its wholly owned subsidiaries. The Corporation believes it will be able to meet future debt maturities, which are fairly staggered over the coming years.

Pursuant to its financing agreements, the Corporation is required to maintain certain financial ratios. The key indicators listed in these financing agreements include debt service coverage ratio and debt ratio (long-term debt over adjusted operating income). As of December 31, 2015, the Corporation was in compliance with all required financial ratios.

Servicing and Repayment of Debt : Cash interest payments of $150.1 million in 2015, a decrease of $18.1 million compared with 2014.

Purchase of Shares of Quebecor Media and Servicing of Subsidiary Subordinated Loan : Unlike corporations in the United States, corporations in Canada are not permitted to file consolidated tax returns. As a result, we have entered into certain transactions described below that have the effect of using tax losses within the Quebecor Media group.

Tax Consolidation Arrangements with the Parent Corporation: On September 20, 2013, the Corporation contracted a subordinated loan of $3.25 billion from Quebecor Media Inc., bearing interest at a rate of 10.75%, payable every six months on June 20 and December 20, and maturing on September 20, 2043. On the same day, the Corporation invested the total proceeds of $3.25 billion into 3,250,000 preferred shares, Series B, of 9101-0835 Québec Inc., a subsidiary of Quebecor Media Inc. These shares carry the right to receive an annual dividend of 10.85%, payable semi-annually.

On December 27, 2013, 9101-0835 Québec Inc., redeemed 2,600,000 preferred shares, Series B, for a total cash consideration of $2.6 billion, and settled cumulative unpaid dividends of $5.4 million. On the same day, the Corporation used the total proceeds of $2.6 billion to repay part of its subordinated loan contracted from Quebecor Media Inc.

On October 28, 2014, 9101-0835 Québec Inc. redeemed 1,200,000 preferred shares, Series B, for a total cash consideration of $1.2 billion, and settled cumulative unpaid dividends of $46.4 million. On the same day, the Corporation used the total proceeds of $1.2 billion to repay part of its subordinated loan contracted from Quebecor Media Inc.

On February 5, 2015, the Corporation contracted a subordinated loan of $1.01 billion from Quebecor Media Inc., bearing interest at a rate of 10.75%, payable every six months on June 20 and December 20, and maturing on February 5, 2045. On the same day, the Corporation invested the total proceeds of $1.01 billion into 1,010,000 preferred shares, Series B, of 9101-0835 Québec Inc. These shares carry the right to receive an annual dividend of 10.85%, payable semi-annually.

The above transactions were carried out for tax consolidation purposes of Quebecor Media Inc. and its subsidiaries, on terms equivalent to those that prevail on an arm’s length basis and accounted for at the consideration agreed between parties.

Distributions to our shareholder: We paid $85.0 million in common dividends to our shareholder, Quebecor Media, in the fourth quarter of 2015 (none in the fourth quarter of 2014). For the year ended December 31, 2015, we paid $665.0 million in common dividends to our shareholder, compared with $410.0 million in 2014. We expect to make cash distributions to our shareholder in the future, as determined by our Board of Directors, and within the limits set by the terms of our indebtedness and applicable laws.During the third quarter of 2015, we also reduced our paid-up capital and distributed $41.0 million to Quebecor Media.

AWS-3 and 2500 MHz wireless spectrum auction: On March 6, 2015, the Corporation announced that it had acquired four 30 MHz licences in the auction for AWS-3 commercial mobile spectrum licences, covering the province of Quebec and the Ottawa region, at a total price of $31.8 million. These licences were issued to the Corporation by Industry Canada, now known as Innovation, Science and Economic Development Canada, on April 21, 2015.

On May 12, 2015, the Corporation announced that it had acquired eighteen 20 MHz licences in the auction for 2500 MHz commercial mobile spectrum licences, covering the province of Quebec, the Ottawa region and the cities of Toronto, Vancouver, Calgary and Edmonton, at a total price of $187.0 million. These licences were issued to the Corporation by Industry Canada on June 24, 2015.

 

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Analysis of Consolidated Balance Sheets as of December 31, 2015

Table 5

Consolidated Balance Sheets of Videotron

Analysis of significant variances between December 31, 2015 and December 31, 2014

(in millions of dollars)

 

     December 31, 2015     December 31, 2014      Variance     Variance detail

Assets

         

Net cash and cash equivalents 1

   $ (9.9   $ 342.8         (352.7   Cash outflows related to investing and financing activities, less inflows provided by operating activities

Inventories

     114.2        79.1         35.1      Increase in set-top boxes and mobile devices

Investments

     2,090.0        1,080.0         1,010.0      Acquisition of preferred shares of an affiliated corporation for tax consolidation arrangements

Fixed assets

     3,080.7        3,000.8         79.9      Investments on our LTE wireless network, acquisition of 4 Degrees Colocation and investments on our data centers, and customer premises equipment related to our rental program

Intangible assets

     1,071.4        830.6         240.8      Acquisition of AWS-3 and 2500 MHz spectrum licences

Goodwill

     448.9        429.3         19.6      Acquisition of 4Degrees Colocation

Derivative financial instruments 2

     494.2        111.2         383.0      See “Financing Activities” above

Liabilities

         
Income taxes (receivables) payable      (17.9     69.8         (87.7   Impact of income tax payments and expenses
Long-term debt, including short-term portion      3,266.6        2,924.5         342.1      See “Financing Activities” above
Subordinated loan from parent corporation      2,090.0        1,080.0         1,010.0      Increase in loan payable to the parent corporation for tax consolidation arrangements
Deferred income taxes      561.3        476.3         85.0      Increase in temporary differences mainly related to intangible assets
Equity          
Capital stock      132.4        3.4         129.0      Issuance of shares and reduction in paid-up capital

 

1  

Cash and cash equivalents less bank indebtedness

2  

Long-term assets less current and long-term liabilities

 

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ADDITIONAL INFORMATION

Contractual Obligations and Other Commercial Commitments

As of December 31, 2015, material contractual obligations included: capital repayment and interest payments on long-term debt, obligations related to derivative financial instruments, less estimated future receipts on derivative financial instruments, operating lease arrangements and capital asset purchases and other commitments. Table 6 below shows a summary of our contractual obligations.

Table 6

Contractual obligations of the Corporation as of December 31, 2015

(in millions of dollars)

 

     Total     Less than
1 year
     1-3
years
    3-5
years
     5 years or
more
 

Contractual obligations 1

            

Accounts payable and accrued charges

   $ 422.8      $ 422.8       $      $       $   

Amounts payable to affiliated corporations

     62.9        62.9                          

Bank credit facility

     26.8        10.7         16.1                  

Revolving credit facilities

     246.7                       246.7           

  7 / 8 % Senior Notes due July 15, 2021

     300.0                               300.0   

5% Senior Notes due July 15, 2022

     1,107.2                               1,107.2   

  3 / 8 % Senior Notes due June 15, 2024

     830.4                               830.4   

  5 / 8 % Senior Notes due June 15, 2025

     400.0                               400.0   

  3 / 4 % Senior Notes due January 15, 2026

     375.0                               375.0   

Interest payments 2

     1,173.8        116.8         306.9        305.5         444.6   

Derivative financial instruments 3

     (489.5     4.6         (18.3             (475.8

Operating lease commitments

     186.7        40.7         60.1        38.1         47.8   

Services and capital equipment commitments

     398.3        114.9         93.1        51.2         139.1   
  

 

 

   

 

 

    

 

 

   

 

 

    

 

 

 

Total contractual cash obligations

   $ 5,041.1      $ 773.4       $ 457.9      $ 641.5       $ 3,168.3   
  

 

 

   

 

 

    

 

 

   

 

 

    

 

 

 

 

1  

Excludes obligations under subordinated loans due to Quebecor Media, our parent corporation; the proceeds of which are used to invest in preferred shares of an affiliated corporation for tax consolidation purposes for the Quebecor Media group.

 

2  

Estimated interest payable on long-term debt, based on interest rates, hedging of interest rates and hedging of foreign exchange rates as of December 31, 2015.

 

3  

Estimated future receipts, net of disbursements, related to foreign exchange hedging using derivative financial instruments.

Material commitments included in Table 6

The Corporation leases sites for its LTE wireless network under operating lease contracts, and has contracted long-term commitments to acquire equipment for a total future disbursement of $155.2 million.

In May 2013, the Corporation and Rogers have announced a 20-year agreement to build out and operate a shared LTE wireless network in the Province of Québec and in the Ottawa Region. As of December 31, 2015, a total commitment of $260.0 million was outstanding under this agreement.

Pension plan contributions

The expected employer contributions to the Corporation’s defined benefit pension plans and postretirement benefits plans will be $22.3 million in 2016 (contributions of $23.1 million were paid in 2015).

 

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Related Party Transactions

In addition to the related party transactions disclosed elsewhere in this annual report, the Corporation entered into the following transactions with affiliated corporations and the parent corporation. These transactions were accounted for at the consideration agreed between parties:

Table 7

Related party transactions

(in millions of dollars)

 

     2015     2014     2013  

Ultimate parent and parent corporation :

      

Revenues

   $ 0.7      $ 0.7      $ 0.5   

Purchase of goods and services

     8.6        7.6        8.5   

Operating expenses recovered

     (0.6     (0.7     (4.2

Affiliated corporations :

      

Revenues

     8.1        10.3        11.0   

Purchase of goods and services

     103.4        81.1        73.2   

Operating expenses recovered

     (1.4     (0.7     (3.4

Off-Balance Sheet Arrangements

Guarantees

In the normal course of business, the Corporation enters into numerous agreements containing guarantees, including the following:

 

   

Operating Leases

The Corporation has guaranteed a portion of the residual values of certain assets under operating leases for the benefit of the lessor. Should the Corporation terminate these leases prior to term (or at the end of the lease terms) and should the fair value of the assets be less than the guaranteed residual value, then the Corporation must, under certain conditions, compensate the lessor for a portion of the shortfall. As of December 31, 2015, the maximum exposure with respect to the guarantees was $15.4 million and no liability has been recorded in the consolidated balance sheet.

 

   

Business and asset disposals

In the sale of all or part of a business or an asset, in addition to possible indemnification relating to failure to perform covenants and breach of representations or warranties, the Corporation may agree to indemnify against claims related to the past conduct of the business. Typically, the term and amount of such indemnification will be limited by the agreement. The nature of these indemnification agreements prevents the Corporation from estimating the maximum potential liability it could be required to pay to guaranteed parties. The Corporation has not accrued any amount with respect of these items in the consolidated balance sheets.

 

   

Outsourcing Companies and Suppliers

In the normal course of its operations, the Corporation enters into contractual agreements with outsourcing companies and suppliers. In some cases, the Corporation agrees to provide indemnifications in the event of legal procedures initiated against them. In other cases, the Corporation provides indemnification to counterparties for damages resulting from the outsourcing companies and suppliers. The nature of the indemnification agreements prevents the Corporation from estimating the maximum potential liability it could be required to pay. No amount has been accrued in the consolidated balance sheet with respect to these indemnifications.

 

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Guarantees Related to our Bank Credit Facilities

The bank credit facilities provide for a $615.0 million secured revolving credit facility that matures in July 2020, a $350.0 million unsecured revolving credit facility that matures in July 2020 and a $75.0 million secured export financing facility providing for a term loan that matures in June 2018. The revolving credit facility bears interest at Bankers’ acceptance rate, Canadian prime rate or U.S. prime rate, plus a margin, depending on the Corporation’s leverage ratio. Advances under the export financing facility bear interest at Bankers’ acceptance rate plus a margin. The secured bank credit facilities are secured by a first ranking hypothec on the universality of all tangible and intangible assets, current and future, of the Corporation and most of its wholly owned subsidiaries. As of December 31, 2015, the secured bank credit facilities were secured by assets with a carrying value of $7,646.3 million ($6,238.3 million in 2014). The bank credit facilities contain covenants such as maintaining certain financial ratios, limitations on the Corporation’s ability to incur additional indebtedness, pay dividends and make other distributions. As of December 31, 2015, $246.7 million was drawn on the secured revolving credit facilities (no amount was drawn in 2014), $26.8 million was outstanding on the export financing facility ($37.5 million in 2014) and no amount was drawn on the unsecured revolving credit facility.

Financial instruments and financial risk management

The Corporation’s financial risk management policies have been established in order to identify and analyze the risks faced by the Corporation, to set appropriate risk limits and controls, and to monitor risks and adherence to limits. Risk management policies are reviewed regularly to reflect changes in market conditions and in the Corporation’s activities.

The Corporation uses a number of financial instruments, mainly cash and cash equivalents, accounts receivable, accounts payable and accrued charges, provisions, long-term debt, and derivative financial instruments. As a result of its use of financial instruments, the Corporation is exposed to credit risk, liquidity risk and market risks relating to foreign exchange fluctuations and interest rate fluctuations.

In order to manage its foreign exchange and interest rate risks, the Corporation uses derivative financial instruments (i) to set in Canadian dollars future payments on debts denominated in U.S. dollars (interest and principal) and certain purchases of inventories and other capital expenditures denominated in a foreign currency, (ii) to achieve a targeted balance of fixed- and floating-rate debts and (iii) to lock-in the value of certain derivative financial instruments through offsetting transactions. The Corporation does not intend to settle its derivative financial instruments prior to their maturity as none of these instruments is held or issued for speculative purposes.

Description of Derivative Financial Instruments

Table 8

Foreign exchange forward contracts as of December 31, 2015

(in millions of dollars)

 

Maturity    Canadian
dollar average
exchange rate
per one U.S.
dollar
     Notional
amount sold
     Notional
amount bought
 

Less than 1 year

     1.3105       $ 168.7       US$ 128.7   

2017 1

     1.3849       US$ 260.0       $ 360.1   

 

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Table 9

Cross-currency interest rate swaps as of December 31, 2015

(in millions of dollars)

 

Hedged item

   Hedging instrument  
     Period covered      Notional
amount
     Annual interest
rate on notional
amount in
Canadian  dollars
     Canadian dollar
exchange rate on
interest and
capital payments
per one U.S. dollar
 

5.000% Senior Notes due 2022

     2014 to 2022       US$ 543.1         6.01%         0.9983   

5.000% Senior Notes due 2022

     2012 to 2022       US$ 256.9         5.81%         1.0016   

5.375% Senior Notes due 2024 1

     2008 to 2017       US$ 260.0         9.21%         1.2965   

5.375% Senior Notes due 2024

     2014 to 2024       US$ 158.6        

 

 

 

Bankers’

acceptances

3 months

+2.67%

  

  

  

  

     1.1034   

5.375% Senior Notes due 2024

     2017 to 2024       US$ 441.4         5.62%         1.1039   

 

1  

The Corporation initially entered into these cross-currency interest rate swaps to hedge the foreign currency risk exposure under its 9.125% Senior Notes due in 2018 redeemed in 2014. These swaps are now used to set in CAN dollars all coupon payments through 2017 on US$441.4 million of notional amount under its 5.375% Senior Notes due in 2024 and issued in 2014. In conjunction with the repurposing of these swaps, the Corporation has entered into US$260.0 million offsetting foreign exchange forward contracts to lock-in the value of its hedging position related to the December 15, 2017 notional exchange.

Certain cross-currency interest rate swaps entered into by the Corporation include an option that allows each party to unwind the transaction on a specific date at the then settlement amount.

The gain or loss on valuation and translation of financial instruments for the years ended December 31, 2015, 2014 and 2013 is summarized in the following table.

Table 10

Loss on valuation and translation of financial instruments

(in millions of dollars)

 

     2015     2014     2013  

Loss on embedded derivatives

   $ 3.6      $ 4.9      $ 97.4   

(Gain) loss on reversal of embedded derivatives upon debt redemption

     (0.3     (0.6     67.0   

Loss on derivative financial instruments for which hedge accounting

         is not used

    

  
    3.1        0.4   

Loss (gain) on the ineffective portion of cash flow hedges

     0.7        (0.8     (1.1

Gain on the ineffective portion of fair value hedges

     (3.5     (3.2       
  

 

 

   

 

 

   

 

 

 
   $ 0.5      $ 3.4      $ 163.7   
  

 

 

   

 

 

   

 

 

 

A gain of $2.1 million was recorded under “Other comprehensive income” in 2015 in relation to cash flow hedging relationships (gain of $7.2 million in 2014 and loss of $25.0 million in 2013).

Fair value of financial instruments

The fair value of long-term debt in Table 11 is estimated based on quoted market prices when available or on valuation models. When the Corporation uses valuation models, the fair value is estimated using discounted cash flows using year-end market yields or the market value of similar instruments with the same maturity.

The fair value of cash equivalents classified as held for trading and accounted for at their fair value on the consolidated balance sheets, is determined using inputs that are observable for the asset or liability, either directly (i.e., as prices) or indirectly (i.e., derived from prices).

 

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The fair value of derivative financial instruments recognized on the consolidated balance sheet is estimated as per the Corporation’s valuation models. These models project future cash flows and discount the future amounts to a present value using the contractual terms of the derivative instrument and factors observable in external markets data, such as period-end swap rates and foreign exchange rates. An adjustment is also included to reflect non-performance risk impacted by the financial and economic environment prevailing at the date of the valuation, in the recognized measure of the fair value of the derivative instruments by applying a credit default premium estimated using a combination of observable and unobservable inputs in the market to the net exposure of the counterparty or the Corporation.

The fair value of early settlement options recognized as embedded derivatives is determined by option pricing models using market inputs, including volatility, discount factors and underlying instruments adjusted implicit interest rate and credit premium.

The carrying value and fair value of long-term debt and derivative financial instruments as of December 31, 2015 and 2014 are as follows:

Table 11

Fair value of long-term debt and derivative financial instruments

(in millions of dollars)

 

     2015     2014  

Asset (liability)

   Carrying
value
    Fair value     Carrying
value
    Fair value  
        

Long-term debt 1, 2

   $ (3,286.1   $ (3,289.6   $ (2,951.0   $ (3,020.9

Derivative financial instruments 3

        

Early settlement options

     1.0        1.0        5.6        5.6   

Foreign exchange forward contracts 4

     9.3        9.3        4.2        4.2   

Cross-currency interest rate swaps 4

     484.9        484.9        107.0        107.0   

 

1  

The carrying value of long-term debt excludes adjustments to record changes in the fair value of long-term debt related to hedged interest rate risk, embedded derivatives and financing fees.

 

2  

The fair value of long-term debt excludes the fair value of early settlement options, which is presented separately in the table.

 

3  

The fair value of the derivative financial instruments designated as hedges is an asset position of $494.2 million as of December 31, 2015 ($111.2 million as of December 31, 2014).

 

4  

The value of foreign exchange forward contracts entered into to lock-in the value of existing hedging positions is netted from the value of the offset financial instruments.

Due to the judgment used in applying a wide range of acceptable techniques and estimates in calculating fair value amounts, fair values are not necessarily comparable among financial institutions or other market participants and may not be realized in an actual sale or on the immediate settlement of the instrument.

Credit Risk Management

Credit risk is the risk of financial loss to the Corporation if a customer or counterparty to a financial asset fails to meet its contractual obligations.

In the normal course of business, the Corporation continuously monitors the financial condition of its customers and reviews the credit history of each new customer. As of December 31, 2015, no customer balance represented a significant portion of the Corporation’s consolidated accounts receivable. The Corporation establishes an allowance for doubtful accounts based on the specific credit risk of its customers and historical trends. The allowance for doubtful accounts amounted to $16.6 million as of December 31, 2015 ($15.4 million as of December 31, 2014). As of December 31, 2015, 7.4% of accounts receivable were 90 days past their billing date (7.0% as of December 31, 2014), of which 63.3% had an allowance for doubtful accounts (61.2% as of December 31, 2014).

 

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The following table shows changes to the allowance for doubtful accounts for the years ended December 31, 2015 and 2014:

Table 12

Changes in Allowance for Doubtful Accounts

(in millions of dollars)

 

       2015     2014  
    

Balance as of beginning of year

   $ 15.4      $ 15.7   

Charged to income

     30.2        28.9   

Utilization

     (29.0     (29.2
  

 

 

   

 

 

 

Balance as of end of year

   $ 16.6      $ 15.4   
  

 

 

   

 

 

 

The Corporation believes that its product lines and the diversity of its customer base are instrumental in reducing its credit risk, as well as the impact of fluctuations in product-line demand. The Corporation does not believe that it is exposed to an unusual level of customer credit risk.

As a result of its use of derivative financial instruments, the Corporation is exposed to the risk of non-performance by a third party. When the Corporation enters into derivative contracts, the counterparties (either foreign or Canadian) must have credit ratings at least in accordance with the Corporation’s risk management policy and are subject to concentration limits. These credit ratings and concentration limits are monitored on an ongoing basis but at least quarterly.

Liquidity risk management

Liquidity risk is the risk that the Corporation will not be able to meet its financial obligations as they fall due or the risk that those financial obligations will have to be met at excessive cost. The Corporation manages this exposure through staggered debt maturities. The weighted average term of the Corporation’s consolidated debt was approximately 7.6 years as of December 31, 2015 (7.3 years as of December 31, 2014). (see also “Contractual obligations” above).

Market Risk

Market risk is the risk that changes in market prices due to foreign exchange rates and/or interest rates will affect the value of the Corporation’s financial instruments. The objective of market risk management is to mitigate and control exposures within acceptable parameters while optimizing the return on risk.

Foreign Currency Risk

Most of the Corporation’s consolidated revenues and expenses, other than interest expense on U.S.-dollar-denominated debt, purchases of set-top boxes, handsets and cable modems and certain capital expenditures, are received or denominated in Canadian dollars. A significant portion of the interest, principal and premium, if any, payable on its debt is payable in U.S. dollars. The Corporation has entered into transactions to hedge the foreign currency risk exposure on its U.S.-dollar-denominated debt obligations outstanding as of December 31, 2015, to hedge its exposure on certain purchases of set-top boxes, handsets, cable modems and capital expenditures and to lock-in the value of certain derivative financial instruments through offsetting transactions. Accordingly, the Corporation’s sensitivity to variations in foreign exchange rates is economically limited.

 

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The following table summarizes the estimated sensitivity on income and other comprehensive income, before income tax, of a variance of $0.10 in the year-end exchange rate of a Canadian dollar per one U.S. dollar:

Table 13

Estimated Sensitivity of Variances in Year-end Exchange Rate

(in millions of dollars)

 

Increase (decrease)

   Income         Other
comprehensive
income
 

Increase of $0.10

    

Gain on valuation and translation of financial instruments and derivative financial instruments

   $ 2.2                  $ 31.5   

Decrease of $0.10

    

Gain on valuation and translation of financial instruments and derivative financial instruments

     (2.2     (31.5

Interest Rate Risk

The Corporation’s bank credit facilities bear interest at floating rates based on the following reference rates: (i) Bankers’ acceptance rate, (ii) Canadian prime rate and (iii) U.S. prime rate. The Senior Notes issued by the Corporation bear interest at fixed rates. The Corporation has entered into various cross-currency interest rate swap agreements in order to manage interest rate risk exposure. As of December 31, 2015, after taking into account the hedging instruments, long-term debt was comprised of 84.0% fixed-rate debt (85.0% in 2014) and 16.0% floating-rate debt (15.0% in 2014).

The estimated sensitivity on interest payments of a 100 basis point variance in the year-end Canadian Banker’s acceptance rate as of December 31, 2015 is $4.5 million.

The estimated sensitivity on income and other comprehensive income, before income tax, of a 100 basis point variance in the discount rate used to calculate the fair value of financial instruments, as per the Corporation’s valuation model, is as follows:

Table 14

Estimated Sensitivity of Variances in the Discount Rate

(in millions of dollars)

 

Increase (decrease)

   Income         Other
comprehensive
income
 

Increase of 100 basis points

   $ (3.6 )     $ (25.1

Decrease of 100 basis points

     3.6        25.1   

Capital Management

The Corporation’s primary objective in managing capital is to maintain an optimal capital base in order to support the capital requirements of its various businesses, including growth opportunities.

In managing its capital structure, the Corporation takes into account the asset characteristics of its subsidiaries and planned requirements for funds. Management of the capital structure involves the issuance of new debt, the repayment of existing debt using cash flows generated by operations, and the level of distributions to the parent corporation. The Corporation has not significantly changed its strategy regarding the management of its capital structure since the last financial year.

 

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The Corporation’s capital structure is composed of equity, bank indebtedness, long-term debt and net assets and liabilities related to derivative financial instruments, less cash and cash equivalents. The capital structure as of December 31, 2015 and 2014 is as follows:

Table 15

Capital Structure of the Corporation

(in millions of dollars)

 

     December 31,
2015
    December 31,
2014
 

Bank indebtedness

   $ 11.7      $   

Long-term debt

     3,266.6        2,924.5   

Derivative financial instruments asset

     (494.2     (111.2

Cash and cash equivalents

     (1.7     (342.8
  

 

 

   

 

 

 

Net liabilities

     2,782.4        2,470.5   

Equity

   $ 813.8      $ 793.9   
  

 

 

   

 

 

 

The Corporation is not subject to any externally imposed capital requirements other than certain restrictions under the terms of its borrowing agreements, which relate to permitted investments, inter-corporation transactions, and the declaration and payment of dividends or other distributions.

Contingencies and legal disputes

There are a number of legal proceedings against the Corporation and its subsidiaries that are pending. In the opinion of the management of the Corporation and its subsidiaries, the outcome of those proceedings is not expected to have a material adverse effect on the Corporation’s results or on its financial position.

Critical Accounting Policies and Estimates

Revenue recognition

The Corporation recognizes operating revenues when the following criteria are met:

 

   

the amount of revenue can be measured reliably;

 

   

the receipt of economic benefits associated with the transaction is probable;

 

   

the costs incurred or to be incurred in respect of the transaction can be measured reliably;

 

   

the stage of completion can be measured reliably where services have been rendered; and

 

   

significant risks and rewards of ownership, including effective control, have been transferred to the buyer where goods have been sold.

The portion of revenue that is unearned is recorded under “Deferred revenue” when customers are invoiced.

The Corporation provides services under arrangements with multiple deliverables, for which there are two separate accounting units: one for subscriber services (cable television, Internet, cable telephony, mobile telephony and over-the-top video, including connection costs and rental of equipment); the other for equipment sales to subscribers. Components of multiple deliverable arrangements are separately accounted for, provided the delivered elements have stand-alone value to the customer and the fair value of any undelivered elements can be objectively and reliably determined. Arrangement consideration is allocated among the separate accounting units based on their relative fair values.

The Corporation recognizes revenues for each of its main activities as follows:

 

   

Operating revenues from subscriber services such as cable television, Internet access, cable and mobile telephony and over-the-top video are recognized when services are provided. Promotional offers and rebates are accounted for as a reduction in the service revenue to which they relate;

 

   

Revenues from equipment sales to subscribers and their costs are recognized in income when the equipment is delivered. Promotional offers related to equipment, with the exclusion of mobile devices, are accounted for as a reduction of related equipment sales on delivery, while promotional offers related to the sale of mobile devices are accounted for as a reduction of related equipment sales on activation;

 

   

Operating revenues related to service contracts are recognized in income over the life of the specific contracts on a straight-line basis over the period in which the services are provided; and

 

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Cable connection revenues are deferred and recognized as revenues over the estimated average period that subscribers are expected to remain connected to the network. The incremental and direct costs related to cable connection costs, in an amount not exceeding the revenue, are deferred and recognized as an operating expense over the same period. The excess of those costs over the related revenues is recognized immediately in income.

Impairment of assets

For the purposes of assessing impairment, assets are grouped in cash-generating units (“CGUs”), which represent the lowest levels for which there are separately identifiable cash inflows generated by those assets. The Corporation reviews at each balance sheet date whether events or circumstances have occurred to indicate that the carrying amounts of its long-lived assets with finite useful lives may be less than their recoverable amounts. Goodwill, other intangible assets having an indefinite useful life, and intangible assets not yet available for use are tested for impairment each financial year, as well as whenever there is an indication that the carrying amount of the asset, or the CGU to which an asset has been allocated, exceeds its recoverable amount. The recoverable amount is the higher of the fair value less costs to sell and the value in use of the asset or the CGU. Fair value less costs to sell represents the amount an entity could obtain at the valuation date from the asset’s disposal in an arm’s length transaction between knowledgeable, willing parties, after deducting the costs of disposal. The value in use represents the present value of the future cash flows expected to be derived from the asset or the CGU.

The Corporation uses the discounted cash flow method to estimate the recoverable amount, consisting of future cash flows derived mainly from the most recent budget and three-year strategic plan approved by the Corporation’s management and presented to the Board of Directors. These forecasts consider each CGU’s past operating performance and market share as well as economic trends, along with specific and market industry trends and corporate strategies. In particular, specifics assumptions are used for each type of revenues generated by a CGU or for each nature of expenses as well as for future capital expenditures. As such, assumptions will consider, among many other factors, subscribers, competitive landscape, evolution of products and services offerings, wireless penetration growth, proliferation of media platforms, technology evolution, bargaining agreements, Canadian GDP rates and operating cost structures. A range of growth rates is used for cash flows beyond this three-year period. The discount rate used by the Corporation is a pre-tax rate derived from the weighted average cost of capital pertaining to each CGU, which reflects the current market assessment of (i) the time value of money; and (ii) the risk specific to the assets for which the future cash flow estimates have not been risk-adjusted. The perpetual growth rate has been determined with regard to the specific markets in which the CGUs participate.

An impairment loss is recognized in the amount by which the carrying amount of an asset or a CGU exceeds its recoverable amount. When the recoverable amount of a CGU to which goodwill has been allocated is lower than the CGU’s carrying amount, the related goodwill is first impaired. Any excess amount of impairment is recognized and attributed to assets in the CGU, prorated to the carrying amount of each asset in the CGU.

An impairment loss recognized in prior periods for long-lived assets with finite useful lives and intangible assets having an indefinite useful life, other than goodwill, can be reversed through the consolidated statement of income to the extent that the resulting carrying value does not exceed the carrying value that would have been the result if no impairment losses had been previously recognized.

The determination of CGUs requires judgment when determining the lowest level for which there are separately identifiable cash inflows generated by the asset category.

In addition, when determining the recoverable amount of an asset or CGU, assessment of the information available at the valuation date is based on management’s judgment and may involve estimates and assumptions. Furthermore, the discounted cash flow method used in determining the recoverable amount of an asset or CGU relies on the use of estimates such as the amount and timing of cash flows, expected variations in the amount or timing of those cash flows, the time value of money as represented by the risk-free rate, and the risk premium associated with the asset or CGU.

Therefore, the judgment used in determining the recoverable amount of an asset or CGU may affect the amount of the impairment loss to an asset or CGU to be recorded, as well as the potential reversal of the impairment charge in the future.

Based on the data and assumptions used in its last impairment test, the Corporation believes that at this time there are no significant amounts of long-lived assets with finite useful lives, or goodwill and intangible assets with indefinite useful lives on its books that present a significant risk of impairment in the near future.

The net book value of goodwill as of December 31, 2015 was $448.9 million.

 

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Useful life of spectrum licences

Management has concluded that spectrum licences have an indefinite useful life. This conclusion was based on the analysis of factors such as the Corporation’s financial ability to renew the spectrum licences, the competitive, legal and regulatory landscape, and the future expected use of the licences. Therefore, the determination that spectrum licences have an indefinite useful life involves judgment and it could have an impact on the amortization charge recorded in the consolidated statement of income if management was to change its conclusion in the future as it did in 2015.

Derivative financial instruments and hedge accounting

The Corporation uses various derivative financial instruments to manage its exposure to fluctuations in foreign currency exchange rates and interest rates. The Corporation does not hold or use any derivative financial instruments for speculative purposes. Under hedge accounting, the Corporation documents all hedging relationships between hedging items and hedged items, as well as its strategy for using hedges and its risk management objectives. It also designates its derivative financial instruments as either fair value hedges or cash flow hedges when they qualify for hedge accounting. The Corporation assesses the effectiveness of derivative financial instruments when the hedge is put in place and on an ongoing basis.

The Corporation generally enters into the following types of derivative financial instruments:

 

   

The Corporation uses foreign exchange forward contracts to hedge foreign currency rate exposure on anticipated equipment or inventory purchases in a foreign currency. The Corporation also uses offsetting foreign exchange forward contracts in combination with cross-currency interest rate swaps to hedge foreign currency rate exposure on interest and principal payments on foreign currency denominated debt. These foreign exchange forward contracts are designated as cash flow hedges.

 

   

The Corporation uses cross-currency interest rate swaps to hedge (i) foreign currency rate exposure on interest and principal payments on foreign currency denominated debt and/or (ii) fair value exposure on certain debt resulting from changes in interest rates. The cross-currency interest rate swaps that set all future interest and principal payments on U.S.-dollar-denominated debt in fixed CAN dollars, in addition to converting an interest rate from a floating rate to a floating rate or from a fixed rate to a fixed rate, are designated as cash flow hedges. The cross-currency interest rate swaps are designated as fair value hedges when they set all future interest and principal payments on U.S.-dollar-denominated debt in fixed CAN dollars, in addition to converting the interest rate from a fixed rate to a floating rate.

Under hedge accounting, the Corporation applies the following accounting policies:

 

   

For derivative financial instruments designated as fair value hedges, changes in the fair value of the hedging derivative recorded in income are substantially offset by changes in the fair value of the hedged item to the extent that the hedging relationship is effective. When a fair value hedge is discontinued, the carrying value of the hedged item is no longer adjusted and the cumulative fair value adjustments to the carrying value of the hedged item are amortized to income over the remaining term of the original hedging relationship.

 

   

For derivative financial instruments designated as cash flow hedges, the effective portion of a hedge is reported in other comprehensive income until it is recognized in income during the same period in which the hedged item affects income, while the ineffective portion is immediately recognized in income. When a cash flow hedge is discontinued, the amounts previously recognized in accumulated other comprehensive income are reclassified to income when the variability in the cash flows of the hedged item affects income.

Any change in the fair value of these derivative financial instruments recorded in income is included in gain or loss on valuation and translation of financial instruments. Interest expense on hedged long-term debt is reported at the hedged interest and foreign currency rates.

Derivative financial instruments that do not qualify for hedge accounting, including derivatives that are embedded in financial or non-financial contracts that are not closely related to the host contracts, such as early settlement options on long-term debt, are reported on a fair value basis in the consolidated balance sheets. Any change in the fair value of these derivative financial instruments is recorded in income as a gain or loss on valuation and translation of financial instruments.

Early settlement options are accounted for separately from the debt when the corresponding option exercise price is not approximately equal to the amortized cost of the debt.

The judgment used in determining the fair value of derivative financial instruments including embedded derivatives, using valuation and pricing models, may have a significant effect on the value of the gain or loss on valuation and translation of financial instruments recorded in the consolidated statements of income, and the value of the gain or loss on derivative financial instruments recorded in the consolidated statements of comprehensive income. Also, valuation and financial models are based on a number of assumptions including future cash flows, period end swap rates, foreign exchange rates, credit default premium, volatility, discount factors and underlying instrument adjusted implicit interest rate and credit premium.

 

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In addition, judgment is required to determine if an option exercise price is not approximately equal to the amortized cost of the debt. This determination may have a significant impact on the amount of gains or losses on valuation and translation of financial instruments recorded in the consolidated statements of income.

Pension and postretirement benefits

The Corporation offers defined benefit pension plans and defined contribution pension plans to some of its employees.

Defined benefit obligations with respect to defined benefit pension plan and postretirement benefits plan are measured at present value and assessed on the basis of a number of economic and demographic assumptions, which are established with the assistance of Videotron’s actuaries. Key assumptions relate to the discount rate, the rate of increase in compensation, retirement age of employees, healthcare costs, and other actuarial factors. Defined benefit pension plan assets are measured at fair value and consist of equities and corporate and government fixed-income securities.

Re-measurements of the net defined benefit liability or asset are recognized immediately in other comprehensive income.

Recognition of a net benefit asset is limited under certain circumstances to the amount recoverable, which is primarily based on the present value of future contributions to the plan to the extent to which the Corporation can unilaterally reduce those future contributions. In addition, an adjustment to the net benefit asset or the net benefit liability can be recorded to reflect a minimum funding liability in a certain number of the Corporation’s pension plans. The assessment of the amount recoverable in the future, for the purpose of calculating the limit on the net benefit asset, is based on a number of assumptions, including future service costs and reductions in future plan contributions.

The Corporation considers all the assumptions used to be reasonable in view of the information available at this time. However, variances from certain of these assumptions may have a significant impact on the costs and obligations of pension plans and postretirement benefits in future periods.

Stock-based compensation

Stock-based awards to employees that call for settlement in cash or other assets at the option of the employee are accounted for at fair value and classified as a liability. The compensation cost is recognized in expenses over the vesting period. Changes in the fair value of stock-based awards between the grant date and the measurement date result in a change in the liability and compensation cost.

Estimates of the fair value of stock option awards are determined by applying an option-pricing model, taking into account the terms and conditions of the grant and assumptions such as the risk-free interest rate, the distribution yield, the expected volatility and the expected remaining life of the option.

The judgment and assumptions used in determining the fair value of liability classified stock-based awards may have an effect on the compensation cost recorded in the statements of income.

Provisions

Provisions are recognized when (i) the Corporation has a present legal or constructive obligation as a result of a past event and it is probable that an outflow of economic benefits will be required to settle the obligation; and when (ii) the amount of the obligation can be reliably estimated.

Provisions are reviewed at each balance sheet date and changes in estimates are reflected in the consolidated statements of income in the reporting period in which changes occur.

The amount recognized as a provision is the best estimate of the expenditure required to settle the present obligation at the balance sheet date or to transfer it to a third party at that time, and is adjusted for the effect of time value when material. The amount recognized for onerous contracts is the lower of the cost necessary to fulfill the obligations, net of expected economic benefits deriving from the contracts, and any indemnity or penalty arising from failure to fulfill those obligations.

No amounts are recognized for obligations that are possible but not probable or for those for which an amount cannot be reasonably estimated.

Allowance for doubtful accounts

The Corporation maintains an allowance for doubtful accounts to cover anticipated losses from customers who are unable to pay their debts. The allowance is reviewed periodically and is based on an analysis of specific significant accounts outstanding, the age of the receivable, customer creditworthiness, and historical collection experience.

 

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Income taxes

Deferred income taxes are accounted for using the liability method. Under this method, deferred income tax assets and liabilities are recognized for the estimated future tax consequences attributable to differences between the carrying amounts of existing assets and liabilities in the consolidated financial statements and their respective tax bases. Deferred income tax assets and liabilities are measured using enacted or substantively enacted tax rates in effect for the year in which those temporary differences are expected to be recovered or settled. The effect of a change in tax rates on deferred income tax assets and liabilities is recognized in income in the period that includes the substantive enactment date. A deferred tax asset is recognized initially when it is probable that future taxable income will be sufficient to use the related tax benefits and may be subsequently reduced, if necessary, to an amount that is more likely than not to be realized.

The assessment of deferred income taxes is judgmental in nature and is dependent on assumptions and estimates as to the availability and character of future taxable income. The ultimate amount of deferred income tax asset realized could be slightly different from that recorded, since it is influenced by the Corporation’s future operating results.

The Corporation is at all times under audit by various tax authorities in each of the jurisdictions in which it operates. A number of years may elapse before a particular matter for which management has established a reserve is audited and resolved. The number of years between each tax audit varies depending on the tax jurisdiction. Management believes that its estimates are reasonable and reflect the probable outcome of known tax contingencies, although the final outcome is difficult to predict.

Change in accounting estimate

In the second quarter of 2015, the Corporation changed its assessment of the useful life of its spectrum licences. In light of recent spectrum auctions and developments in the telecommunication industry, the Corporation is now of the view that these spectrum licences have an indefinite useful life based on the following facts:

 

   

The Corporation intends to renew the spectrum licences and believes that they are likely to be renewed by Industry Canada;

 

   

The Corporation has the financial and operational ability to renew these spectrum licences;

 

   

Currently, the competitive, legal and regulatory landscape does not limit the useful lives of the spectrum licences; and

 

   

The Corporation foresees no limit to the period during which these licences can be expected to generate cash flows in the future.

Accordingly, the Corporation ceased to amortize spectrum licences used in its operations as of April 1, 2015 and no amortization expense was recorded after this date. The straight-line amortization expense recorded relating to these licences was $13.9 million in 2015 ($55.4 million in 2014 and 2013).

 

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Recent Accounting Pronouncements

The Corporation has not yet completed its assessment of the impact of the adoption of these pronouncements on its consolidated financial statements.

 

(i) IFRS 9 – Financial Instruments is required to be applied retrospectively for annual periods beginning on or after January 1, 2018, with early adoption permitted.

IFRS 9 simplifies the measurement and classification of financial assets by reducing the number of measurement categories in IAS 39, Financial Instruments: Recognition and Measurement . The new standard also provides for a fair value option in the designation of a non-derivative financial liability and its related classification and measurement, as well as for a new hedge accounting model more closely aligned with risk management activities undertaken by entities.

 

(ii) IFRS 15 – Revenue from Contracts with Customers is required to be applied retrospectively for annual periods beginning on or after January 1, 2017, with early adoption permitted.

IFRS 15 specifies how and when an entity will recognize revenue as well as requiring such entities to provide users of financial statements with more informative disclosures. The standard provides a single, principles based five-step model to be applied to all contracts with customers.

 

(iii) IFRS 16 – Leases is required to be applied retrospectively for annual periods beginning on or after January 1, 2019, with early adoption permitted provided that IFRS 15 has been applied or is applied at the same time as IFRS 16.

IFRS 16 sets out new principles for the recognition, measurement, presentation and disclosure of leases for both parties to a contract. The standard provides lessees with a single accounting model for all leases, with certain exemptions. In particular, lessees will be required to report most leases on their balance sheets by recognising right-of-use assets and related financial liabilities.

 

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ITEM  6 – DIRECTORS, SENIOR MANAGEMENT AND EMPLOYEES

 

A- Directors and Senior Management

The following table sets forth certain information concerning our directors and executive officers at March 18, 2016:

 

Name and Municipality of Residence

   Age   

Position

T HE RIGHT H ONOURABLE B RIAN M ULRONEY ,
P.C., C. C ., LL.D.

Montréal, Québec

   76    Director and Chair of the Board

J EAN L A C OUTURE , FCPA, FCA (1)

Montréal, Québec

   69    Director and Chair of the Audit Committee

S YLVIE L ALANDE

Lachute, Québec

   65    Director

A. M ICHEL L AVIGNE , FCPA, FCA (1)

Laval, Québec

   65    Director

N ORMAND P ROVOST (1)

Brossard, Québec

   61    Director

M ANON B ROUILLETTE

Montréal, Québec

   47    President and Chief Executive Officer

J EAN N OVAK

Knowlton, Québec

   52    President, Videotron Business Solutions, President, Le SuperClub Vidéotron ltée, and Senior Vice President, Sales Network and Retail Sector

H UGUES S IMARD

Montréal, Québec

   49    Senior Vice President and Chief Financial Officer

D ANIEL P ROULX

Montréal, Québec

   58    Chief Technological Officer

S YLVAIN B ROSSEAU

Varennes, Québec

   52    Senior Vice President, Operations, Customer Service

M YRIANNE C OLLIN

Montréal, Québec

   42    Senior Vice President, Strategy and Market Development

P IERRE B ONIN

Montreal West, Québec

   53    Vice President, Information Technology

A LAIN C HARLEBOIS

Laval, Québec

   44    Vice President, Human Resources

C HLOÉ P OIRIER

Nuns’ Island, Québec

   46    Vice President and Treasurer

M ARC M. T REMBLAY

Westmount, Québec

   55    Corporate Secretary

 

(1) Member of the Audit Committee

The Right Honourable Brian Mulroney , P.C., C.C., LL.D, Director and Chairman of the Board . Mr. Mulroney was appointed as Director and Chairman of the Board of Videotron on June 19, 2014. He has been a Director of Quebecor Media since January 31, 2001 and director of Quebecor since 1999. He was appointed Chairman of the Board

 

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of Quebecor and Quebecor Media on June 19, 2014. He also served as Vice Chairman of the Board of Quebecor from November 2009 to June 2014 and as Vice-Chairman of the Board of Quebecor Media from March 2014 to June 2014. Mr. Mulroney also served as Chairman of the Board of Directors of Quebecor World Inc. from April 2002 to July 2009. Mr. Mulroney served as Chairman of the Board of Directors of Sun Media Corporation from January 2000 to June 2001. Since 1993, Mr. Mulroney has been a Senior Partner with the law firm Norton Rose Fulbright Canada LLP (formerly Ogilvy Renault LLP) in Montréal, Québec. Prior to that, Mr. Mulroney was the Prime Minister of Canada from 1984 until 1993. Mr. Mulroney practiced law in Montréal and served as President of The Iron Ore Company of Canada before entering politics in 1983. Mr. Mulroney serves as a Director of a number of public corporations, including Wyndham Worldwide Corporation (New Jersey), The Blackstone Group LP (New York) and Lion Capital (London). He is also Chairman of the International Advisory Board of Barrick Gold Corporation. He is Companion of the Order of Canada as well as Grand Officier de l’Ordre national du Québec .

Jean La Couture , FCPA, FCA, Director and Chairman of the Audit Committee. Mr. La Couture has served as a Director and as Chair of our Audit Committee since October 2003. Mr. La Couture is a Director and Chair of the Audit Committee of Quebecor and Quebecor Media. He was a Director of Quebecor World Inc. from December 2007 to December 2008. Mr. La Couture, a Fellow Chartered Professional Accountant, is President of Huis Clos Ltée., a management and mediation firm. He headed Le Groupe Mallette (an accounting firm) before becoming, from 1990 to 1994, President and Chief Executive Officer of The Guarantee Company of North America. He is Chairman of the Board of Innergex Renewable Energy Inc., Chairman of the Board of Groupe Pomerleau (a Québec-based construction company) and a Director and Chair of the Investment and Risk Management Committee of CDPQ and Chairman of the Board of Ébénisterie Beaubois ltée.

Sylvie Lalande, Director. Ms. Lalande is a Director of Videotron since July 2014 and of Quebecor Media since May 2013. She has served as a Director of Quebecor since May 2011. She is a member of the Human Resources and Compensation Committee of Quebecor and Quebecor Media since June 2014. She is a Director of TVA Group since December 2001, and was appointed as Chair of the Board on March 10, 2014. She has also served as Chair of the Human Resources and Corporate Governance Committee of TVA Group since May 2013. Ms. Lalande held several senior positions in the media, marketing, communication marketing and company communications sectors. Until October 2001, she was Chief Communications Officer of Bell Canada. From 1994 to 1997, she was President and Chief Executive Officer of UBI Consortium, a consortium formed to develop and manage interactive and transactional communication services. From 1987 to 1994, she occupied several senior positions within TVA Group and Le Groupe Vidéotron ltée. Ms. Lalande began her career in the radio industry, after which she founded her own consultation firm. In 2006, Ms. Lalande earned a degree in corporate governance from the Collège des administrateurs de sociétés. Ms. Lalande is a Director and Chair of the Corporate Governance and Human Resources Committee and Lead Director of Ovivo Inc. In November 2013, Ms. Lalande was appointed Chair of the Board of the Collège des administrateurs de sociétés (CAS) of Université Laval .

A. Michel Lavigne , FCPA, FCA, Director and member of the Audit Committee. Mr. Lavigne has served as a Director of Videotron and as a member of its Audit Committee since June 30, 2005. Mr. Lavigne has also served as a Director and member of the Audit Committee and the Human Resources and Compensation Committee of Quebecor Media since June 30, 2005. He was appointed Chair of the Human Resources and Compensation Committee in June 2014. Since June 30, 2005, Mr. Lavigne has also served as a Director and a member of the Audit Committee of TVA Group. Since May 2013, he is also a member of the Human Resources and Corporate Governance Committee of TVA Group. He also is a Director and member of the Audit Committee and of the Human Resources and Compensation Committee of Quebecor since May 2013 and as Chair of the latter committee since June 2014. Mr. Lavigne is a Director, a member of the Audit Committee and Chair of the Pension Committee of Canada Post and a Director and member of the Risk Management Committee of Laurentian Bank of Canada. Until May 2005, he served as President and Chief Executive Officer of Raymond Chabot Grant Thornton in Montréal, Québec, as Chairman of the Board of Grant Thornton Canada and as a member of the Board of Governors of Grant Thornton International. Mr. Lavigne is a Fellow Chartered Professional Accountant of the Ordre des comptables professionnels agréés du Québec and a member of the Canadian Institute of Chartered Accountants since 1973.

Normand Provost , Director . Mr. Provost is a Director of Videotron since June 2014. He has served as a Director of Quebecor Media since July 2004 and a Director of Quebecor since May 2013. He has also served as a member of the Audit Committee of Quebecor and Quebecor Media since June 2014. From May 2014 to December 2015, Mr. Provost

 

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was Assistant to the President of CDPQ, one of the largest institutional fund managers in Canada and North America. Mr. Provost joined CDPQ in 1980 and has held various management positions during his time there. He served as President of CDP Capital Americas from 1995 to 2003. He also served as Executive Vice President, Private Equity, of CDPQ from October 2003 until May 2014. In addition to his responsibilities in the investment sector, Mr. Provost served as Chief Operations Officer of CDPQ from April 2009 to March 2012. Mr. Provost is a Director of the Fondation de l’Entrepreneurship.

Manon Brouillette , President and Chief Executive Officer. In May 2014, Ms. Brouillette was promoted President and Chief Executive Officer of Videotron. From May 2013 to May 2014, she acted as President and Chief Operating Officer of Videotron, after acting as President, Consumer Market from January 2012 to May 2013. She acted as Executive Vice President, Strategy and Market Development of Videotron from March 2009 to January 2012, as President, Consumer Market. From January 2011 to May 2012, she also acted as Vice President and Chief Digital Officer of Quebecor Media. From June 2008 to March 2009, she acted as Senior Vice President, Strategic Development and Market Development of Quebecor Media. She joined Videotron in July 2004 and acted as Vice President, Marketing, from July 2004 to January 2005, as Vice President, New Product Development, from January 2005 to August 2006 and as Senior Vice President, Marketing, Content and New Product Development, from September 2006 to June 2008. Before joining the Corporation, Ms. Brouillette was Vice President, Marketing and Communications of the San Francisco Group from April 2003 to February 2004. She was also responsible for the national and regional accounts of the Blitz division of Groupe Cossette Communication Marketing from April 2002 to April 2003. From September 1998 to April 2002, she worked at Publicité Martin inc. Ms. Brouillette holds a Bachelor’s degree in communications with a minor in marketing from Université Laval .

Jean Novak , President, Videotron Business Solutions, President, Le SuperClub Vidéotron ltée, and Senior Vice President, Sales Network and Retail Sector. Mr. Novak was appointed to his current position in August 2014. From May 2013 to August 2014, he was President, Videotron Business Solutions and Senior Vice-President, Sales Channel. He has served as President, Videotron Business Solutions since January 2005. Mr. Novak joined Videotron in May 2004 as Vice President, Sales. Between 1988 and May 2004, Mr. Novak held various management positions in sales and distribution for Molson Breweries, Canada’s largest brewing company, including General Manager for all on premise accounts and the Montréal sales region as well as Manager, Customer Service and Telesales in Québec. Mr. Novak holds a Bachelor’s degree in marketing from the HEC Montréal.

Hugues Simard , Senior Vice President and Chief Financial Officer. Mr. Simard was appointed to his current position in August 2014. Mr. Simard served as Vice President Finance of Sun Media Corporation from January 2011 to August 2014 and as Vice President, Corporate Advertising Sales from December 2008 to January 2011. He was also Senior Vice President, Development and Strategy of Quebecor Media from February 2007 to January 2011. Mr. Simard joined the Quebecor group of companies in July 1998 as Director, Business Development of Quebecor Printing which became Quebecor World in 1999. He was appointed Vice President, Corporate Development of Quebecor New Media in 1999 and President & CEO of Netgraphe/Canoe in 2000. He rejoined Quebecor World in 2003, first as Vice President, Development and Planning and then as President of the Commercial Printing Group in 2004. Prior to his appointment as Senior Vice President, Development and Strategy at Quebecor Media, he spent a year in Paris, France as Managing Director of Secor Conseil, a management consulting firm. Mr. Simard holds a Bachelor’s degree of Applied Science degree in industrial engineering from the University of Toronto and an MBA from Harvard Business School.

Daniel Proulx , Chief Technological Officer. Mr. Proulx was appointed Chief Technological Officer in April 2011. Prior to his appointment, he had served as Vice President, Engineering since July 2003 and as Vice President, Information Technology since July 2002. Mr. Proulx has held various management positions within Videotron since joining the Corporation in 1995. Mr. Proulx holds a Bachelor’s degree in Engineering from l’École polytechnique de Montréal .

Sylvain Brosseau . Senior Vice President, Operations, Customer Service . Mr. Brosseau was appointed to his current position in May 2013. He has served as Vice President, Customer Service, Consumer division since July 2003. Mr. Brosseau has held various management positions within Videotron since joining the Corporation in 1996.

Myrianne Collin , Senior Vice President, Strategy and Market Development. Ms. Collin was promoted to her current position in December 2011. She had served as Vice President, Marketing, Consumer division since June 2008. She

 

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joined Videotron in April 2005 as Senior Director Marketing, Cable Telephony and Bundling. In September 2006, Ms. Collin was appointed Senior Director, Broadcast Services & Relationship Marketing. From 1995 to 2005, Ms. Collin held various positions with Bell Canada and Alliance Data System (Air Miles). She holds a Bachelor’s degree in marketing from Université de Sherbrooke.

Pierre Bonin , Vice President, Information Technology . Mr. Bonin was appointed Vice President, Information Technology in March 2014. Prior to joining the Corporation, Mr. Bonin was President and Chief Executive Officer of StrongKase Enterprise Inc., a private equity firm where, from 2005 to 2014, he has been actively involved in the data center industry through various investments and ventures. Prior to 2005, Mr. Bonin held various executive positions in the telecommunications industry as Executive Vice President and Chief Information Technology Officer at Microcell Telecommunications Inc. (FIDO), Vice President Information Technology as well as Vice President Finance and Administration at Bell Canada. Mr. Bonin graduated in Mathematics and Computer Science from Université de Sherbrooke and received an MBA from HEC Montreal. He holds the designation of Chartered Director from the Collège des administrateurs de sociétés (CAS) of l’Université Laval and from the Directors College of McMaster University.

Alain Charlebois , Vice President, Human Resources . Mr. Charlebois was appointed Vice President, Human Resources in January 2013. Prior to joining the Corporation, Mr. Charlebois has held various positions within Videotron since joining the Company as Section Head, Human Resources in 2003. Mr. Charlebois holds a Bachelor’s degree in Human Resources Management from the Université du Québec à Montréal .

Chloé Poirier , Vice President and Treasurer. Ms. Poirier was promoted Vice President and Treasurer in June 2013 from her previous position as Treasurer, a position she held since August 2009. She also serves as Vice President and Treasurer of Quebecor and Quebecor Media. Ms. Poirier joined the Corporation in 2001 as Director, Treasury / Assistant Treasurer, Treasury Operations. Prior to that, she was Analyst, Treasury and Finance with Natrel inc./Agropur from 1997 to 2001 and trader at the Caisse de dépôt et placement du Québec from 1995 to 1997. She is a Chartered Financial Analyst (CFA) and holds a Bachelor’s degree in Actuarial Science and an MBA from Université Laval .

Marc M. Tremblay , Corporate Secretary . Mr. Tremblay was appointed Corporate Secretary in September 2014. He also serves as Senior Vice President, Chief Legal Officer and Public Affairs and Corporate Secretary of Quebecor and Quebecor Media since September 2014. Prior to that date, he was Senior Vice President and Chief Legal Officer and Public Affairs of Quebecor Media, a position he held from October 2013. Mr. Tremblay was also Senior Vice President, Legal Affairs, a position he held from March 2012 to October 2013. He was also Vice President, Legal Affairs of Quebecor Media, a position he held from March 2007 to March 2012. Previously, Mr. Tremblay practiced law at Ogilvy Renault LLP (now Norton Rose Fulbright Canada LLP) for 22 years. He has been a member of the Barreau du Québec since 1983.

 

B- Compensation

Our Directors do not receive any remuneration for acting in their capacity as directors of Videotron. Since July 1, 2013, the Chairman of our Audit Committee receives an annual fee of $25,000 while the other two members receive an annual fee of $10,000. Our Directors are reimbursed for their reasonable out-of-pocket expenses incurred in connection with meetings of our Board of Directors and our Audit Committee. During the financial year ended December 31, 2015, the amount of compensation (including benefits in kind) paid to four of our directors for services in all capacities to Videotron and its subsidiaries was $45,000. None of our directors have contracts with us or any of our subsidiaries that provide for benefits upon termination of employment.

The aggregate amount of compensation we paid for the year ended December 31, 2015 to our executive officers as a group, excluding those who are also executive officers of, and compensated by, Quebecor Media, was approximately $6.6 million, including salaries, bonuses and benefits in kind. In addition, an aggregate total of 109,000 options were granted to them under Quebecor Media’s Stock Option Plan, with a weighted average price of $70.558.

Quebecor Media’s Stock Option Plan

Under a stock option plan established by Quebecor Media, 6,180,140 common shares of Quebecor Media (representing 6.4% of all of the outstanding common shares of Quebecor Media) have been set aside for directors,

 

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officers, senior employees, and other key employees of Quebecor Media and its subsidiaries, including Videotron. Each option may be exercised within a maximum period of ten years following the date of grant at an exercise price not lower than, as the case may be, the fair market value of the common shares of Quebecor Media at the date of grant, as determined by its Board of Directors (if the common shares of Quebecor Media are not listed on a stock exchange at the time of the grant) or the 5-day weighted average closing price ending on the day preceding the date of grant of the common shares of Quebecor Media on the stock exchange(s) where such shares are listed at the time of grant, as applicable. For so long as the shares of Quebecor Media are not listed on a recognized stock exchange, optionees may exercise their vested options during one of the following annual periods: from March 1 to March 30, from June 1 to June 29, from September 1 to September 29 and from December 1 to December 30. Holders of options under the plan have the choice at the time of exercising their options to receive an amount in cash equal to the difference between the fair market value of the common shares, as determined by Quebecor Media’s Board of Directors, and the exercise price of their vested options or, subject to certain stated conditions, purchase common shares of Quebecor Media at the exercise price. Except under specific circumstances, and unless Quebecor Media’s Human Resources and Compensation Committee decides otherwise, options vest over a five-year period in accordance with one of the following vesting schedules as determined by Quebecor Media’s Human Resources and Compensation Committee at the time of grant: (i) equally over five years with the first 20% vesting on the first anniversary of the date of the grant; (ii) equally over four years with the first 25% vesting on the second anniversary of the date of grant; and (iii) equally over three years with the first 33  1 / 3 % vesting on the third anniversary of the date of grant. Pursuant to the terms of this plan, no optionee may hold options representing more than 5% of the outstanding common shares of Quebecor Media.

During the year ended December 31, 2015, a total of 145,000 options were granted under this plan to executive officers of Videotron (excluding directors, officers and employees who, at the date of grant, were directors, officers or employees at multiple Quebecor Media group of companies). During the year ended December 31, 2015, a total of 57,150 options were exercised by officers and employees of Videotron, for aggregate gross value realized of $1.15 million. The value realized on option exercises represents the difference between the option exercise price and the fair market value of Quebecor Media common shares (as determined as set forth above) at the date of exercise. As of December 31, 2015, an aggregate total of 386,611 options granted to directors, officers and employees of Videotron (excluding directors, officers and employees who, at the date of grant, were directors, officers or employees at multiple Quebecor Media group companies) remain outstanding, with a weighted average exercise price of $62.34 per share, as determined by Quebecor Media’s Human Resources and Compensation Committee. For more information on this stock option plan, refer to Note 21 to our audited consolidated financial statements included under “Item 18. Financial Statements” of this annual report.

Quebecor’s Stock Option Plan

Under a stock option plan established by Quebecor, 13,000,000 Quebecor Class B Shares have been set aside for Directors, officers, senior employees and other key employees of Quebecor and its subsidiaries, including Videotron. The exercise price of each option is equal to the weighted average trading price of Quebecor Class B Shares on the Toronto Stock Exchange over the last five trading days immediately preceding the grant of the option. Each option may be exercised during a period not exceeding ten years from the date granted. Options usually vest as follows: 1 / 3 after one year, 2 / 3 after two years, and 100% three years after the original grant. Holders of options under the Quebecor stock option plan have the choice, when they want to exercise their options, to acquire Quebecor Class B Shares at the corresponding option exercise price or to receive a cash payment from Quebecor equivalent to the difference between the market value of the underlying shares and the exercise price of the option. The Board of Directors of Quebecor may, at its discretion, affix different vesting periods at the time of each grant.

During the year ended December 31, 2015, no options to purchase Quebecor Class B Shares were granted to senior executive officers of Videotron. As of December 31, 2015, a total of 50,000 options to purchase Quebecor Class B Shares, with a weighted average exercise price of $25.49 per share, were held by one senior executive officer of Videotron for acting in such capacity. The closing sale price of the Quebecor Class B Shares on the TSX on December 31, 2015, was $33.88.

 

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Pension Benefits

Both Quebecor Media and Videotron maintain pension plans for our non-unionized employees and certain officers.

Videotron’s pension plan provides pension benefits to our executive officers equal to 2.0% of salary (excluding bonuses) for each year of membership in the plan. The pension benefits so calculated are payable at the normal retirement age of 65 years, or sooner at the election of the executive officer, subject to an early retirement reduction. In addition, the pension benefits may be deferred, but not beyond the age limit under the relevant provisions of the Income Tax Act (Canada), in which case the pension benefits are adjusted to take into account the delay in their payment in relation to the normal retirement age. The maximum pension benefits payable under our pension plan are as prescribed under the Income Tax Act (Canada). An executive officer contributes to this plan an amount equals to 5.0% of his or her salary up to a maximum of $7,225 in respect of 2016. Videotron changed this pension plan to a defined contribution plan for new employees hired on and after May 1, 2012. Videotron reserves the right, in exceptional circumstances, to override the above conditions in order to allow an executive officer to join the pension plan as of the date of hire or any subsequent date.

Quebecor Media’s pension plan provides greater pension benefits to eligible executive officers than it does to other employees. The higher pension benefits under this plan equal 2.0% of the average salary over the best five consecutive years of salary (including bonuses), multiplied by the number of years of membership in the plan as an executive officer. The pension benefits so calculated are payable at the normal retirement age of 65 years, or sooner at the election of the executive officer, and, from age 61, without early retirement reduction. In addition, the pension benefits may be deferred, but not beyond the age limit under the relevant provisions of the Income Tax Act (Canada), in which case the pension benefits are adjusted to take into account the delay in their payment in relation to the normal retirement age. The maximum pension benefits payable under Quebecor Media’s pension plan are as prescribed by the Income Tax Act (Canada) and is based on a maximum salary of $144,500. An executive officer contributes to this plan an amount equals to 5.0% of his or her salary up to a maximum of $7,225 in respect of 2016. Videotron has no liability regarding Quebecor Media’s pension plan. Quebecor Media closed this pension plan to all new employees hired on and after December 27, 2008. However, Quebecor Media reserves the right, in exceptional circumstances, to override the above conditions in order to allow an executive officer to join the pension plan as of the date of hire or any subsequent date. New employees are eligible to enroll in a retirement savings plan.

The total amount we contributed for the year ended December 31, 2015 to provide the pension benefits to our senior executives, as a group, was $223,200. For a description of the amount set aside or accrued for pension plans and post-retirement benefits by us to all participants, refer to Note 27 to our audited consolidated financial statements for the year ended December 31, 2015 included under “Item 18. Financial Statements” of this annual report.

The table below indicates the annual pension benefits that would be payable at the normal retirement age of 65 years under both Quebecor Media’s and our pension plans:

 

     Years of Participation  

Compensation

   10      15      20      25      30  

$144,500

   $ 28,900       $ 43,350       $ 57,800       $ 72,250       $ 86,700   

Liability Insurance

Quebecor carries liability insurance for the benefit of its directors and officers, as well as for the directors and officers of its subsidiaries, including Videotron and our subsidiaries, against certain liabilities incurred by them in such capacity. These policies are subject to customary deductibles and exceptions. The premiums in respect of this insurance are entirely paid by Quebecor, which is then reimbursed by Quebecor Media and its subsidiaries, including Videotron, for their rateable portion thereof.

 

C- Board Practices

Reference is made to “A. Directors and Senior Management” above for the current term of office, if applicable, and the period during which our directors and senior management have served in that office.

 

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There are no directors’ service contracts with us or any of our subsidiaries providing for benefits upon termination of employment.

Our Board of Directors is comprised of five directors. Each director is nominated and elected by Quebecor Media, our parent corporation, to serve until a successor director is elected or appointed. Our Board of Directors has an Audit Committee, but we do not have a compensation committee. The Human Resources and Compensation Committee of Quebecor Media decides certain matters relating to the compensation of officers and employees of Videotron, including certain matters relating to the Quebecor Media stock option plan, as discussed above.

Audit Committee

Videotron’s Audit Committee is currently composed of three Directors, namely Messrs. Jean La Couture, A. Michel Lavigne and Normand Provost. Mr. La Couture is the Chair of our Audit Committee and our Board of Directors has determined that Mr. La Couture is an “audit committee financial expert” as defined under SEC rules. See “Item 16A. Audit Committee Financial Expert”. Our Board of Directors has adopted the mandate of our Audit Committee in light of the Sarbanes-Oxley Act of 2002 and related SEC rulemaking. Our Audit Committee assists our Board of Directors in overseeing our financial controls and reporting. Our Audit Committee also oversees our compliance with financial covenants and legal and regulatory requirements governing financial disclosure matters and financial risk management.

The current mandate of our Audit Committee provides, among other things, that our Audit Committee reviews our annual and quarterly financial statements before they are submitted to our Board of Directors, as well as the financial information contained in our annual reports on Form 20-F, our management’s discussion and analysis of financial condition and results of operations, our quarterly reports furnished to the SEC under cover of Form 6-K and other documents containing similar information before their public disclosure or filing with regulatory authorities; reviews our accounting policies and practices; and discusses with our independent auditors the scope of their audit, as well as our auditors’ recommendations and observations with respect to the audit, our accounting policies and financial reporting, and the responses of our management with respect thereto. Our Audit Committee is also responsible for ensuring that we have in place adequate and effective internal control and management information systems to monitor our financial information and to ensure that our transactions with related parties are made on terms that are fair for us. Our Audit Committee pre-approves all audit services and permitted non-audit services and pre-approves all the fees pertaining to those services that are payable to our independent auditor, and submits the appropriate recommendations to our Board of Directors in connection with these services and fees. At least every five years, our Audit Committee carries out an assessment of the external auditor. It also reviews and approves our Code of Ethics for our President and Chief Executive Officer and principal financial officers.

 

D- Employees

At December 31, 2015, we had 6,410 employees. At December 31, 2014 and 2013, we had 6,432 and 6,310 employees, respectively (excluding, at December 31, 2013, the employees of Jobboom inc., which was sold in 2013). Substantially all of our employees are based and work in the Province of Quebec. We had 3,843 unionized employees, and the terms of their employment are governed by one of our four regional collective bargaining agreements. The collective bargaining agreement covering 2,800 unionized employees in the Montréal region will expire on December 2018. We also have two collective bargaining agreements covering our unionized employees in the Québec and Saguenay regions, with terms running through December 31, 2018 and December 31, 2019 respectively. Our Gatineau region collective bargaining agreement expired on August 31, 2015, and one other collective bargaining agreement, covering 73 employees of our SETTE inc. subsidiary expired on December 31, 2015. These two collective bargaining agreements are currently being negotiated.

 

E- Share Ownership

No Videotron equity securities are held by any of our Directors or senior executive officers.

 

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ITEM 7 – MAJOR SHAREHOLDERS AND RELATED PARTY TRANSACTIONS

 

A- Major Shareholders

We are a wholly-owned subsidiary of Quebecor Media, a leading Canadian-based media and telecommunications company with interests in newspaper publishing operations, television broadcasting, telecommunications, book and magazine publishing and new media services. Through these interests, Quebecor Media holds leading positions in the creation, promotion and distribution of news, entertainment and Internet related services that are designed to appeal to audiences in every demographic category.

Quebecor holds, directly and indirectly, 77,812,366 common shares of Quebecor Media, representing a 81.07% voting and equity interest in Quebecor Media and Caisse de dépôt et placement du Québec (“ CDPQ ”), indirectly holds 18,170,810 shares of Quebecor Media, representing a 18.93% interest in Quebecor Media. The primary asset of Quebecor, a communications holding company, is its interest in Quebecor Media. CDPQ is one of Canada’s largest pension fund managers.

 

B- Related Party Transactions

The Corporation enters into related party transactions from time to time. These related party transactions are further described under “Item 5. Operating and Financial Review and Prospects – Cash Flow and Financial Position – Financial Position as of December 31, 2015” and in Note 8, in Note 11 and in Note 26 to our audited consolidated financial statements included under “Item 18. Financial Statements” in this annual report. These related party transactions have been accounted for at the consideration agreed between parties:

 

     As of December   31,  
     2015      2014      2013  
     (in thousands of dollars)  

Ultimate Parent and Parent Corporation:

        

Revenues

   $ 696       $ 680       $ 541   

Purchase of goods and services

     8,584         7,572         8,508   

Operating expenses recovered

     (597      (682      (4,207

Affiliated Corporations:

        

Revenues

     8,059         10,349         11,019   

Purchase of goods and services

     103,435         81,148         73,193   

Operating expenses recovered

     (1,395      (701      (3,418

Management fee

The Corporation pays annual management fees to the parent corporation for services rendered to the Corporation, including internal audit, legal and corporate, financial planning and treasury, tax, real estate, human resources, risk management, public relations and other services. Management fees amounted to $48.0 million in 2015, $43.5 million in 2014 and $45.0 million in 2013. The agreement provides for an annual management fee to be agreed upon for the year 2015. In addition, the parent corporation is entitled to the reimbursement of out-of-pocket expenses incurred in connection with the services provided under the agreement.

Income tax transactions

On February 5, 2015, the Corporation contracted a subordinated loan of $1.01 billion from Quebecor Media, bearing interest at a rate of 10.75%, payable every six months on June 20 and December 20, and maturing on February 5, 2045. On the same day, we invested the total proceeds of $1.01 billion into 1,010,000 preferred shares, Series B, of 9101-0835 Québec inc., a subsidiary of Quebecor Media. These shares carry the right to receive an annual dividend of 10.85%, payable semi-annually.

On October 28, 2014, 9101-0835 Québec inc., a subsidiary of Quebecor Media, redeemed 1,200,000 preferred shares, Series B, for a total cash consideration of $1.2 billion, and settled cumulative unpaid dividends of $46.4 million. On the same day, the Corporation used the total proceeds of $1.2 billion to repay part of its subordinated loan contracted from Quebecor Media.

 

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On December 27, 2013, 9101-0835 Québec inc., a subsidiary of Quebecor Media, redeemed 2,600,000 preferred shares, Series B, for a total cash consideration of $2.6 billion, and settled cumulative unpaid dividends of $5.4 million. On the same day, the Corporation used the total proceeds of $2.6 billion to repay part of its subordinated loan contracted from Quebecor Media.

On October 18, 2013, Vidéotron Infrastructures inc. redeemed from Le SuperClub Vidéotron 80,000 preferred shares, Class G, for a total cash consideration of $80.0 million, and settled cumulative unpaid dividends of $3.0 million. On the same day, Le SuperClub Vidéotron used the total proceeds of $80.0 million to repay the outstanding portion of the subordinated loan contracted from Vidéotron Infrastructures Inc.

On September 20, 2013, the Corporation contracted a subordinated loan of $3.25 billion from Quebecor Media, bearing interest at a rate of 10.75%, payable every six months on June 20 and December 20, and maturing on September 20, 2043. On the same day, we invested the total proceeds of $3.25 billion into 3,250,000 preferred shares, Series B, of 9101-0835 Québec inc., a subsidiary of Quebecor Media. These shares carry the right to receive an annual dividend of 10.85%, payable semi-annually.

On January 21, 2013, Vidéotron Infrastructures inc. redeemed from Le SuperClub Vidéotron 720,000 preferred shares, Class G, for a total cash consideration of $720.0 million, and settled cumulative unpaid dividends of $7.1 million. On the same day, Le SuperClub Vidéotron used the total proceeds of $720.0 million to repay a portion of the subordinated loan contracted from Vidéotron Infrastructures Inc.

The above transactions were carried out for tax consolidation purposes of Quebecor Media and its subsidiaries, on terms equivalent to those that prevail on an arm’s length basis and accounted for at the consideration agreed between parties.

Purchase of shares of Quebecor Media and subsidiary subordinated loans

Unlike corporations in the United States, corporations in Canada are not permitted to file consolidated tax returns. As a result, we enter into certain transactions from time to time that have the effect of using tax losses within the Quebecor Media Group. These transactions are described further under “Item 5. Operating and Financial Review and Prospects – Cash Flow and Financial Position – Financial Position as of December 31, 2015” and in Note 11 and in Note 26 to our audited consolidated financial statements which are included under “Item 18. Financial Statements” in this annual report.

 

C- Interests of Experts and Counsel

Not applicable.

ITEM 8 – FINANCIAL INFORMATION

 

A- Consolidated Statements and Other Financial Information

Our consolidated balance sheets as at December 31, 2015 and 2014, and our consolidated statements of income, comprehensive income, equity and cash flows for the years ended December 31, 2015, 2014 and 2013, including the notes thereto and together with the report of Independent Registered Public Accounting Firm, are included beginning on page F-1 of this annual report.

Legal Proceedings

We and our subsidiaries are involved in a number of other legal proceedings against us which are pending. In the opinion of our management, the outcome of these proceedings is not expected to have a material adverse effect on our results or financial position.

 

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In 2001, we refused to complete the acquisition of Cable-Axion, a cable operator, claiming that a material adverse change had occurred. However, Telus and Novacap disagreed and, as shareholders and interest owners of Cable-Axion, they filed an action in damages against us for an amount of $18.8 million in 2002. The trial occurred during the fall of 2014. On January 20, 2015, the Superior Court of Québec rendered a judgement against us in the amount of $34.3 million (including accrued interest). On February 18, 2015, we filed an appeal against this judgment with the Court of Appeal of Québec.

Dividend Policy

During the years ended December 31, 2015, 2014 and 2013 we paid aggregate cash dividends on our common shares of $665,000,000, $410,000,000 and $361,880,099.43, respectively. We currently expect to pay dividends and other distributions on our common shares in the future. The declaration and payment of dividends and other distributions is in the sole discretion of our Board of Directors, and any decision regarding the declaration of dividends and other distributions will be made by our Board of Directors depending on, among other things, our financial resources, the cash flows generated by our business, our capital needs, and other factors considered relevant by our Board of Directors, including the terms of our indebtedness and applicable law.

 

B- Significant Changes

Except as otherwise disclosed in this annual report, there has been no other material adverse change in our financial position since December 31, 2015.

ITEM 9 – THE OFFER AND LISTING

 

A- Offer and Listing Details

Not applicable.

 

B- Plan of Distribution

Not applicable.

 

C- Markets

Outstanding Notes

On September 15, 2015, we issued and sold $375.0 million aggregate principal amount of our 5  3 / 4 % Senior Notes due January 15, 2026, in private placements exempt from the registration requirement of the Securities Act and the prospectus requirements of applicable Canadian securities laws.

On April 9, 2014, we issued and sold US$600.0 million aggregate principal amount of our 5  3 / 8 % Senior Notes due June 15, 2024, in private placements exempt from the registration requirement of the Securities Act and the prospectus requirements of applicable Canadian securities laws.

On June 17, 2013, we issued and sold $400.0 million aggregate principal amount of our 5  5 / 8 % Senior Notes due June 15, 2025 in private placements exempt from the registration requirement of the Securities Act and the prospectus requirements of applicable Canadian securities laws.

On March 14, 2012, we issue and sold US$800.0 million aggregate principal amount of our 5% Senior Notes due July 15, 2022 in private placements exempt from the registration requirements of the Securities Act. In connection with the issuance of these unregistered notes, we filed a registration statement on Form F-4 with the SEC on May 17, 2012 and completed the registered exchange offer in July 2012. As a result, our 5% Senior Notes due July 15, 2022 have been registered under the Securities Act.

 

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On July 5, 2011, we issued and sold $300.0 million aggregate principal amount of our 6  7 / 8 % Senior Notes due July 15, 2021 in private placements exempt from the registration requirement of the Securities Act and the prospectus requirements of applicable Canadian securities laws.

There is currently no established trading market for our Senior Notes. There can be no assurance as to the liquidity of any market that may develop for our outstanding Senior Notes, the ability of the holders of any such Senior Notes to sell them or the prices at which any such sales may be made. We have not and do not presently intend to apply for a listing of our outstanding Senior Notes on any exchange or automated dealer quotation system.

The record holder of our 5% Senior Notes due 2022 and our 5  3 / 8 % Senior Notes due 2024 is Cede & Co., a nominee of The Depository Trust Company, and the record holder of our 6  7 / 8 % Senior Notes due 2021, our 5  5 / 8 % Senior Notes due 2025 and our 5  3 / 4 % Senior Notes due 2026 is CDS Clearing and Depository Services Inc.

 

D- Selling Shareholders

Not applicable.

 

E- Dilution

Not applicable.

 

F- Expenses of the Issue

Not applicable.

ITEM 10 – ADDITIONAL INFORMATION

 

A- Share Capital

Not applicable.

 

B- Memorandum and Articles of Association

The Articles of Amalgamation of Videotron, dated as of July 1, 2006, and the Articles of Amendment of Videotron, dated as of June 30, 2008 and December 12, 2008 are referred to as our “Articles”. Our Articles are included as exhibits to this annual report. The following is a summary of certain provisions of our Articles and by-laws:

On July 1, 2006, Vidéotron ltée and 9101-0827 Québec inc. amalgamated, under Part IA of the Companies Act (Québec), into a single corporation using the name “Videotron Ltd.” (or “Vidéotron ltée” in French) with the Designating Number 1163819882. Since its coming into force on February 14, 2011, Videotron is governed by the Business Corporations Act (Québec). The Articles provide no restrictions on the purposes or activities that may be undertaken by Videotron.

 

1.    (a) Our by-laws provide that a director must disclose the nature and value of any interest he has in a contract or transaction to which our Corporation is a party. A director must also disclose a contract or transaction to which the Corporation and any of the following are a party:

 

  (i) an associate of the director;

 

  (ii) a group of which the director is a director;

 

  (iii) a group in which the director or an associate of the director has an interest.

No director may vote on a resolution to approve, amend or terminate the contract or transaction, or be present during deliberations concerning the approval, amendment or termination of such a contract or transaction unless the contract or transaction:

 

  (i) relates primarily to the remuneration of the director or an associate of the director as a director of the Corporation or an affiliate of the Corporation;

 

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  (ii) relates primarily to the remuneration of the director or an associate of the director as an officer, employee or mandatary of the Corporation or an affiliate of the Corporation, if the Corporation is not a reporting issuer;

 

  (iii) is for the indemnification of the directors in certain circumstances or liability insurance taken out by the Corporation;

 

  (iv) is with an affiliate of the Corporation, and the sole interest of the director is as a director or officer of the affiliate.

 

  (b) Neither the Articles nor our by-laws contain provisions with respect to directors’ power, in the absence of an independent quorum, to determine their remuneration.

 

  (c) Subject to any restriction which may from time to time be included in the Articles or our by-laws, or the terms, rights or restrictions of any of our shares or securities outstanding, our directors may authorize us, by ordinary resolution, to borrow money and obtain advances upon the credit of our corporation when they consider it appropriate. Our directors also may, by ordinary resolution, when they consider it appropriate, (i) issue bonds or other securities of our corporation and give them in guarantee or sell them for prices and amounts deemed appropriate; (ii) mortgage, pledge or give as surety our present or future movable and immovable property to ensure the payment of these bonds or other securities or give a part only of these guarantees for the same purposes; and (iii) mortgage or pledge our real estate or give as security or otherwise encumber with any charge our movables or give these various kinds of securities to assure the payment of loans made other than by the issuance of bonds as well as the payment or the execution of other debts, contracts and commitments of our corporation.

Neither the Articles nor our by-laws contain any provision with respect to (i) the retirement or non-retirement of our directors under an age limit requirement or (ii) the number of shares, if any, required for the qualification of our directors.

 

2. The rights, preferences and restrictions attaching to our common shares and our preferred shares (consisting of our Class “A” Common Shares and our authorized classes of preferred shares, comprised or our Class “B” Preferred Shares, Class “C” Preferred Shares, Class “D” Preferred Shares, Class “E” Preferred Shares, Class “F” Preferred Shares, Class “G” Preferred Shares and Class “H” Preferred Shares) are set forth below:

Common Shares

Class “A” Common Shares

 

  (a) Dividend rights: Subject to the rights of the holders of our preferred shares (including their redemption rights) and subject to applicable law, each Class “A” Common Share is entitled to receive such dividends as our Board of Directors shall determine.

 

  (b) Voting rights: The holders of Class “A” Common Shares are entitled to vote at each shareholders’ meeting with the exception of meetings at which only the holders of another class of shares are entitled to vote. Each Class “A” Common Share entitles the holder to one vote. The holders of the Class “A” Common Shares shall elect the directors of Videotron at an annual or special meting of shareholders called for that purpose, except that any vacancy occurring in the Board of Directors may be filled, for the remainder of the term, by our Directors. At any meeting of shareholders called for such purpose, directors are elected by a majority of the votes cast in respect of such election.

 

  (c) Rights to share in our profits: Other than as described in paragraph (a) above (whereby the holders of our Class “A” Common Shares are entitled to receive dividends as determined by our Board of Directors subject to certain restrictions) and paragraph (d) below (whereby the holders of our Class “A” Common Shares are entitled to participation in the remaining property and assets of our company available for distribution in the event of liquidation or dissolution), None.

 

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  (d) Rights upon liquidation: In the event of our liquidation or dissolution or any other distribution of our assets among our shareholders for the purpose of winding-up our affairs, whether voluntarily or involuntarily, the holders of our Class “A” Common Shares shall be entitled, subject to the rights of the holders of our preferred shares, to participate equally, share for share, in our residual property and assets available for distribution to our shareholders, without preference or distinction.

 

  (e) Redemption provisions: None.

 

  (f) Sinking fund provisions: None.

 

  (g) Liability to further capital calls by us: None, provided that our directors may make calls upon the shareholders in respect of any moneys unpaid upon their shares.

 

  (h) Provisions discriminating against existing or prospective holders of common shares as a result of such holders owning a substantial number of common shares: None.

Preferred Shares

Class “B” Preferred Shares

 

  (a) Dividend rights: When our Board of Directors declares a dividend, the holders of our Class “B” Preferred Shares have the right to receive, in priority over the holders of our Class “A” Common Shares, Class “C” Preferred Shares, Class “D” Preferred Shares, Class “E” Preferred Shares, Class “F” Preferred Shares and Class “H” Preferred Shares, but subordinated to the holders of our Class “G” Preferred Shares, a preferential and non-cumulative dividend at the fixed rate of 1% per month, calculated on the basis of the applicable redemption value of our Class “B” Preferred Shares. A dividend may be declared and payable in cash, in kind or through the issuance of fully paid shares of any class of our corporation.

 

  (b) Voting rights: Subject to applicable law and except as expressly otherwise provided, the holders of our Class “B” Preferred Shares do not have the right to receive notice of meetings of shareholders or to attend any such meeting or vote at any such meeting.

 

  (c) Rights to share in our profits: Other than as described in paragraph (a) above (whereby the holders of our Class “B” Preferred Shares are entitled to receive certain dividends, if and when declared by our Board of Directors), paragraph (d) below (whereby the holders of our Class “B” Preferred Shares are entitled to participate in the distribution of the residual property and assets of Videotron available for distribution in the event of our liquidation or winding-up) and paragraph (e) below (whereby the holders of our Class “B” Preferred Shares have certain redemption rights): None.

 

  (d) Rights upon liquidation: In the event of our liquidation, dissolution or other distribution of our assets among our shareholders for the purpose of winding-up our affairs, whether voluntarily or involuntarily, the holders of the Class “B” Preferred Shares shall be entitled to repayment of the amount paid for the Class “B” Preferred Shares in the subdivision of the issued and paid-up share capital account relating to the Class “B” Preferred Shares.

In addition, in the event of our liquidation, dissolution or other distribution of our assets among our shareholders for the purpose of winding-up our affairs, whether voluntarily or involuntarily, the rights of holders of Class “B” Preferred Shares as regards to payment of dividends and the right to participate in the distribution of residual assets, shall rank in priority to the rights of the holders of our Class “A” Common Shares, Class “C” Preferred Shares, Class “D” Preferred Shares, Class “E” Preferred Shares, Class “F” Preferred Shares and Class “H” Preferred Shares, but subordinated to the rights of holders of our Class “G” Preferred Shares.

 

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  (e) Redemption provisions: Subject to the provisions of the Business Corporations Act (Québec), the holders of our Class “B” Preferred Shares have, at any time, the right to require Videotron to redeem (referred to as a “retraction right”) any or all of their Class “B” Preferred Shares at a redemption price equal to the amount paid for such shares in the subdivision of the issued and paid-up share capital account relating to such shares, plus a specified premium, if applicable, plus the amount of any declared and unpaid dividends.

In addition, Videotron may, at its option, redeem any or all of the Class “B” Preferred Shares outstanding at any time at an aggregate redemption price equal to the consideration received by Videotron for these Class “B” Preferred Shares. Videotron may also, when it deems it appropriate and without giving notice or taking into account the other classes of shares, buy, pursuant to a private agreement, all or some of the Class “B” Preferred Shares outstanding at a purchase price for any such Class “B” Preferred Shares not exceeding the retraction right purchase price described above or the book value of Videotron’s net assets.

 

  (f) Sinking fund provisions: None.

 

  (g) Liability to further capital calls by us: None, provided that our directors may make calls upon the shareholders in respect of any moneys unpaid upon their shares.

 

  (h) Provisions discriminating against existing or prospective holders of our Class “B” Preferred Shares as a result of such holder owning a substantial number of our Class “B” Preferred Shares: None.

Class “C” Preferred Shares

 

  (a) Dividend rights: When our Board of Directors declares a dividend, the holders of our Class “C” Preferred Shares have the right to receive, in priority over the holders of our Class “A” Common Shares, Class “D” Preferred Shares, Class “E” Preferred Shares, Class “F” Preferred Shares and Class “H” Preferred Shares, but subordinated to the holders of our Class “B” Preferred Shares and Class “G” Preferred Shares, a preferential and non-cumulative dividend at the fixed rate of 1% per month, calculated on the basis of the applicable redemption value of our Class “C” Preferred Shares. A dividend may be declared and payable in cash, in kind or through the issuance of fully paid shares of any class of our corporation.

 

  (b) Voting rights: Subject to applicable law and except as expressly otherwise provided, the holders of our Class “C” Preferred Shares do not have the right to receive notice of meetings of shareholders or to attend any such meeting or vote at any such meeting.

 

  (c) Rights to share in our profits: Other than as described in paragraph (a) above (whereby the holders of our Class “C” Preferred Shares are entitled to receive certain dividends, if and when declared by our Board of Directors), paragraph (d) below (whereby the holders of our Class “C” Preferred Shares are entitled to participate in the distribution of the residual property and assets of Videotron available for distribution in the event of our liquidation or winding-up) and paragraph (e) below (whereby the holders of our Class “C” Preferred Shares have certain redemption rights): None.

 

  (d) Rights upon liquidation: In the event of our liquidation, dissolution or other distribution of our assets among our shareholders for the purpose of winding-up our affairs, whether voluntarily or involuntarily, the holders of the Class “C” Preferred Shares shall be entitled to repayment of the amount paid for the Class “C” Preferred Shares in the subdivision of the issued and paid-up share capital account relating to the Class “C” Preferred Shares.

In addition, in the event of our liquidation, dissolution or other distribution of our assets among our shareholders for the purpose of winding-up our affairs, whether voluntarily or involuntarily, the rights of holders of Class “C” Preferred Shares as regards to payment of dividends and the right to participate in the distribution of residual assets, shall rank in priority to the rights of the holders of our Class “A” Common Shares, Class “D” Preferred Shares, Class “E” Preferred Shares, Class “F” Preferred Shares and Class “H” Preferred Shares, but subordinated to the rights of holders of our Class “B” Preferred Shares and Class “G” Preferred Shares.

 

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  (e) Redemption provisions: Subject to the provisions of the Business Corporations Act (Québec), the holders of our Class “C” Preferred Shares have, at any time, the right to require Videotron to redeem (referred to as a “retraction right”) any or all of their Class “C” Preferred Shares at a redemption price equal to the amount paid for such shares in the subdivision of the issued and paid-up share capital account relating to such shares, plus a specified premium, if applicable, plus the amount of any declared and unpaid dividends.

In addition, Videotron may, at its option, redeem any or all of the Class “C” Preferred Shares outstanding at any time at an aggregate redemption price equal to the consideration received by Videotron for these Class “C” Preferred Shares. Videotron may also, when it deems it appropriate and without giving notice or taking into account the other classes of shares, buy, pursuant to a private agreement, all or some of the Class “C” Preferred Shares outstanding at a purchase price for any such Class “C” Preferred Shares not exceeding the retraction right purchase price described above or the book value of Videotron’s net assets.

 

  (f) Sinking fund provisions: None.

 

  (g) Liability to further capital calls by us: None, provided that our directors may make calls upon the shareholders in respect of any moneys unpaid upon their shares.

 

  (h) Provisions discriminating against existing or prospective holders of our Class “C” Preferred Shares as a result of such holder owning a substantial number of our Class “C” Preferred Shares: None.

Class “D” Preferred Shares

 

  (a) Dividend rights: When our Board of Directors declares a dividend, the holders of our Class “D” Preferred Shares have the right to receive, in priority over the holders of our Class “A” Common Shares, Class “E” Preferred Shares, Class “F” Preferred Shares and Class “H” Preferred Shares, but subordinated to the holders of our Class “B” Preferred Shares, Class “C” Preferred Shares and Class “G” Preferred Shares, a preferential and non cumulative dividend at the fixed rate of 1% per month, calculated on the basis of the applicable redemption value of our Class “D” Preferred Shares. A dividend may be declared and payable in cash, in kind or through the issuance of fully paid shares of any class of our corporation.

 

  (b) Voting rights: Subject to applicable law and except as expressly otherwise provided, the holders of our Class “D” Preferred Shares do not have the right to receive notice of meetings of shareholders or to attend any such meeting or vote at any such meeting.

 

  (c) Rights to share in our profits: Other than as described in paragraph (a) above (whereby the holders of our Class “D” Preferred Shares are entitled to receive certain dividends, if and when declared by our Board of Directors), paragraph (d) below (whereby the holders of our Class “D” Preferred Shares are entitled to participate in the distribution of the residual property and assets of Videotron available for distribution in the event of our liquidation or winding-up) and paragraph (e) below (whereby the holders of our Class “D” Preferred Shares have certain redemption rights): None.

 

  (d) Rights upon liquidation: In the event of our liquidation, dissolution or other distribution of our assets among our shareholders for the purpose of winding-up our affairs, whether voluntarily or involuntarily, the holders of the Class “D” Preferred Shares shall be entitled to repayment of the amount paid for the Class “D” Preferred Shares in the subdivision of the issued and paid-up share capital account relating to the Class “D” Preferred Shares.

In addition, in the event of our liquidation, dissolution or other distribution of our assets among our shareholders for the purpose of winding-up our affairs, whether voluntarily or involuntarily, the rights of holders of Class “D” Preferred Shares as regards to payment of dividends and the right to participate in

 

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the distribution of residual assets, shall rank in priority to the rights of the holders of our Class “A” Common Shares, Class “E” Preferred Shares, Class “F” Preferred Shares and Class “H” Preferred Shares, but subordinated to the rights of holders of our Class “B” Preferred Shares, Class “C” Preferred Shares and Class “G” Preferred Shares.

 

  (e) Redemption provisions: Subject to the provisions of the Business Corporations Act (Québec), the holders of our Class “D” Preferred Shares have, at any time, the right to require Videotron to redeem (referred to as a “retraction right”) any or all of their Class “D” Preferred Shares at a redemption price equal to the amount paid for such shares in the subdivision of the issued and paid-up share capital account relating to such shares, plus a specified premium, if applicable, plus the amount of any declared and unpaid dividends.

In addition, Videotron may, at its option, redeem any or all of the Class “D” Preferred Shares outstanding at any time at an aggregate redemption price equal to the consideration received by Videotron for these Class “D” Preferred Shares. Videotron may also, when it deems it appropriate and without giving notice or taking into account the other classes of shares, buy, pursuant to a private agreement, all or some of the Class “D” Preferred Shares outstanding at a purchase price for any such Class “D” Preferred Shares not exceeding the retraction right purchase price described above or the book value of Videotron’s net assets.

 

  (f) Sinking fund provisions: None.

 

  (g) Liability to further capital calls by us: None, provided that our directors may make calls upon the shareholders in respect of any moneys unpaid upon their shares.

 

  (h) Provisions discriminating against existing or prospective holders of our Class “D” Preferred Shares as a result of such holder owning a substantial number of our Class “D” Preferred Shares: None.

Class “E” Preferred Shares

 

  (a) Dividend rights: When our Board of Directors declares a dividend, the holders of our Class “E” Preferred Shares have the right to receive, in priority over the holders of our Class “A” Common Shares, Class “F” Preferred Shares and Class “H” Preferred Shares, but subordinated to the holders of our Class “B” Preferred Shares, Class “C” Preferred Share, Class “D” Preferred Share and Class “G” Preferred Shares, a preferential and non cumulative dividend at the fixed rate of 1% per month, calculated on the basis of the applicable redemption value of our Class “E” Preferred Shares. A dividend may be declared and payable in cash, in kind or through the issuance of fully paid shares of any class of our corporation.

 

  (b) Voting rights: Subject to applicable law and except as expressly otherwise provided, the holders of our Class “E” Preferred Shares do not have the right to receive notice of meetings of shareholders or to attend any such meeting or vote at any such meeting.

 

  (c) Rights to share in our profits: Other than as described in paragraph (a) above (whereby the holders of our Class “E” Preferred Shares are entitled to receive certain dividends, if and when declared by our Board of Directors), paragraph (d) below (whereby the holders of our Class “E” Preferred Shares are entitled to participate in the distribution of the residual property and assets of Videotron available for distribution in the event of our liquidation or winding-up) and paragraph (e) below (whereby the holders of our Class “E” Preferred Shares have certain redemption rights): None.

 

  (d) Rights upon liquidation: In the event of our liquidation, dissolution or other distribution of our assets among our shareholders for the purpose of winding-up our affairs, whether voluntarily or involuntarily, the holders of the Class “E” Preferred Shares shall be entitled to repayment of the amount paid for the Class “E” Preferred Shares in the subdivision of the issued and paid-up share capital account relating to the Class “E” Preferred Shares.

 

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In addition, in the event of our liquidation, dissolution or other distribution of our assets among our shareholders for the purpose of winding-up our affairs, whether voluntarily or involuntarily, the rights of holders of Class “E” Preferred Shares as regards to payment of dividends and the right to participate in the distribution of residual assets, shall rank in priority to the rights of the holders of our Class “A” Common Share, Class “F” Preferred Shares and Class “H” Preferred Shares, but subordinated to the rights of holders of our Class “B” Preferred Shares, Class “C” Preferred Shares, Class “D” Preferred Shares and Class “G” Preferred Shares.

 

  (e) Redemption provisions: Subject to the provisions of the Business Corporations Act (Québec), the holders of our Class “E” Preferred Shares have, at any time, the right to require Videotron to redeem (referred to as a “retraction right”) any or all of their Class “E” Preferred Shares at a redemption price equal to the amount paid for such shares in the subdivision of the issued and paid-up share capital account relating to such shares, plus a specified premium, if applicable, plus the amount of any declared and unpaid dividends.

In addition, Videotron may, at its option, redeem any or all of the Class “E” Preferred Shares outstanding at any time at an aggregate redemption price equal to the consideration received by Videotron for these Class “E” Preferred Shares. Videotron may also, when it deems it appropriate and without giving notice or taking into account the other classes of shares, buy, pursuant to a private agreement, all or some of the Class “E” Preferred Shares outstanding at a purchase price for any such Class “E” Preferred Shares not exceeding the retraction right purchase price described above or the book value of Videotron’s net assets.

 

  (f) Sinking fund provisions: None.

 

  (g) Liability to further capital calls by us: None, provided that our directors may make calls upon the shareholders in respect of any moneys unpaid upon their shares.

 

  (h) Provisions discriminating against existing or prospective holders of our Class “E” Preferred Shares as a result of such holder owning a substantial number of our Class “E” Preferred Shares: None.

Class “F” Preferred Shares

 

  (a) Dividend rights: When our Board of Directors declares a dividend, the holders of our Class “F” Preferred Shares have the right to receive, in priority over the holders of our Class “A” Common Shares and Class “H” Preferred Shares, but subordinated to the holders of our Class “B” Preferred Shares, Class “C” Preferred Shares, Class “D” Preferred Shares, Class “E” Preferred Shares and Class “G” Preferred Shares, a preferential and non-cumulative dividend at the fixed rate of 1% per month, calculated on the basis of the applicable redemption value of our Class “F” Preferred Shares. A dividend may be declared and payable in cash, in kind or through the issuance of fully paid shares of any class of our corporation.

 

  (b) Voting rights: Subject to applicable law and except as expressly otherwise provided, the holders of our Class “F” Preferred Shares do not have the right to receive notice of meetings of shareholders or to attend any such meeting or vote at any such meeting.

 

  (c) Rights to share in our profits: Other than as described in paragraph (a) above (whereby the holders of our Class “F” Preferred Shares are entitled to receive certain dividends, if and when declared by our Board of Directors), paragraph (d) below (whereby the holders of our Class “F” Preferred Shares are entitled to participate in the distribution of the residual property and assets of Videotron available for distribution in the event of our liquidation or winding-up) and paragraph (e) below (whereby the holders of our Class “F” Preferred Shares have certain redemption rights): None.

 

  (d) Rights upon liquidation: In the event of our liquidation, dissolution or other distribution of our assets among our shareholders for the purpose of winding-up our affairs, whether voluntarily or involuntarily, the holders of the Class “F” Preferred Shares shall be entitled to repayment of the amount paid for the Class “F” Preferred Shares in the subdivision of the issued and paid-up share capital account relating to the Class “F” Preferred Shares.

 

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In addition, in the event of our liquidation, dissolution or other distribution of our assets among our shareholders for the purpose of winding-up our affairs, whether voluntarily or involuntarily, the rights of holders of Class “F” Preferred Shares as regards to payment of dividends and the right to participate in the distribution of residual assets, shall rank in priority to the rights of the holders of our Class “A” Common Shares and Class “H” Preferred Shares, but subordinated to the rights of holders of our Class “B” Preferred Shares, Class “C” Preferred Shares, Class “D” Preferred Shares, Class “E” Preferred Shares and Class “G” Preferred Shares.

 

  (e) Redemption provisions: Subject to the provisions of the Business Corporations Act (Québec), the holders of our Class “F” Preferred Shares have, at any time, the right to require Videotron to redeem (referred to as a “retraction right”) any or all of their Class “F” Preferred Shares at a redemption price equal to the amount paid for such shares in the subdivision of the issued and paid-up share capital account relating to such shares, plus a specified premium, if applicable, plus the amount of any declared and unpaid dividends.

In addition, Videotron may, at its option, redeem any or all of the Class “F” Preferred Shares outstanding at any time at an aggregate redemption price equal to the consideration received by Videotron for these Class “F” Preferred Shares. Videotron may also, when it deems it appropriate and without giving notice or taking into account the other classes of shares, buy, pursuant to a private agreement, all or some of the Class “F” Preferred Shares outstanding at a purchase price for any such Class “F” Preferred Shares not exceeding the retraction right purchase price described above or the book value of Videotron’s net assets.

 

  (f) Sinking fund provisions: None.

 

  (g) Liability to further capital calls by us: None, provided that our directors may make calls upon the shareholders in respect of any moneys unpaid upon their shares.

 

  (h) Provisions discriminating against existing or prospective holders of our Class “F” Preferred Shares as a result of such holder owning a substantial number of our Class “F” Preferred Shares: None.

Class “G” Preferred Shares

 

  (a) Dividend rights: When our Board of Directors declares a dividend, the holders of our Class “G” Preferred Shares have the right to receive, in priority over the holders of our common shares and preferred shares of other series, a preferential and cumulative dividend, payable semi-annually, at the fixed rate of 11.25% per year, calculated daily on the basis of the applicable redemption value of our Class “G” Preferred Shares. No dividends may be paid on any common shares or preferred shares of other series unless all dividends which shall have become payable on the Class “G” Preferred Shares have been paid or set aside for payment.

 

  (b) Voting rights: Subject to applicable law and except as expressly otherwise provided, the holders of our Class “G” Preferred Shares do not have the right to receive notice of meetings of shareholders or to attend any such meeting or vote at any such meeting.

However, in the event that we shall have failed to pay eight (8) half-yearly dividends, whether or not consecutive, on the Class “G” Preferred Shares, and only for so long as the dividend remains in arrears, the holders of Class “G” Preferred Shares shall have the right to receive notice of meetings of shareholders and to attend and vote at any such meetings, except meetings at which only holders of another specified series or class of shares are entitled to vote. At each such meeting, each Class “G” Preferred Share shall entitle the holder thereof to one vote.

 

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  (c) Rights to share in our profits: Except as described in paragraph (a) above (whereby the holders of our Class “G” Preferred Shares are entitled to receive a 11.25% cumulative preferred dividend in preference to the holders of our common shares and other series of our preferred shares), paragraph (d) below (whereby the holders of our Class “G” Preferred Shares are entitled to receive, in preference to the holders of our common shares and other series of our preferred shares, an amount equal to $1,000 per Class “G” Preferred Share and any accumulated and unpaid dividends with respect thereto in the event of our liquidation, winding-up or reorganization) and paragraph (e) below (whereby the holders of our Class “G” Preferred Shares may require us to redeem the Class “G” Preferred Shares at a redemption price of $1,000 per share plus any accrued and unpaid dividends with respect thereto): None.

 

  (d) Rights upon liquidation: In the event of our liquidation, dissolution or reorganization or any other distribution of our assets among our shareholders for the purpose of winding-up our affairs, whether voluntarily or involuntarily, the holders of our Class “G” Preferred Shares shall be entitled to receive in preference to the holders of our common shares and our preferred shares of other series an amount equal to $1,000 per Class “G” Preferred Share and any accrued and unpaid dividends with respect thereto.

Our Class “G” Preferred Shares have priority over our common shares and our preferred shares of other series as to the order of priority of the distribution of assets in case of the liquidation or dissolution of our corporation, voluntary or involuntary, or of any other distribution of our assets to our shareholders for the purpose of winding up our affairs.

 

  (e) Redemption provisions: Subject to the provisions of the Business Corporations Act (Québec), the holders our Class “G” Preferred Shares have, at any time, the right to require Videotron to redeem any and all of their shares at a redemption price equal to $1,000 per share plus any accrued and unpaid dividends with respect thereto. In addition, we may, at our option, redeem any and all Class “G” Preferred Shares at any time at a redemption price equal to $1,000 per share plus any accrued and unpaid dividends with respect thereto.

 

  (f) Sinking fund provisions: None.

 

  (g) Liability to further capital calls by us: None, provided that our directors may make calls upon the shareholders in respect of any moneys unpaid upon their shares.

 

  (h) Provisions discriminating against existing or prospective holders of our Class “G” Preferred Shares as a result of such holder owning a substantial number of our Class “G” Preferred Shares: None.

Class “H” Preferred Shares

 

  (a) Dividend rights: The holders of Class “H” Preferred Shares shall be entitled to receive, every year, in such manner and at such time as our Board of Directors may declare, a non cumulative dividend at the fixed rate of 1% per month, calculated on the redemption price of the Class “H” Preferred Shares, payable in cash, property or through the issuance of fully paid shares of any class of the Corporation.

 

  (b) Voting rights: Subject to applicable law and except as expressly otherwise provided, the holders of our Class “H” Preferred Shares do not have the right to receive notice of meetings of shareholders or to attend any such meeting or vote at any such meeting.

 

  (c) Rights to share in our profits: Except as described in paragraph (a) above (whereby the holders of our Class “H” Preferred Shares are entitled to receive, every year, in such manner and at such time as our Board of Directors may declare, a non cumulative dividend at the fixed rate of 1% per month), paragraph (d) below (whereby the holders of our Class “H” Preferred Shares are entitled to entitled to repayment of the amount paid for the Class “H” Preferred Shares in the event of our liquidation, winding-up or reorganization) and paragraph (e) below (whereby the holders of our Class “H” Preferred Shares may require us to redeem the Class “H” Preferred Shares at a specified redemption price): None.

 

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  (d) Rights upon liquidation: In the event of our liquidation, dissolution or reorganization or any other distribution of our assets among our shareholders for the purpose of winding-up our affairs, whether voluntarily or involuntarily, the holders of our Class “H” Preferred Shares shall be entitled to repayment of the amount paid for the Class “H” Preferred Shares into the subdivision of the issued and paid-up share capital account relating to the Class “H” Preferred Shares.

 

  (e) Redemption provisions: Subject to the provisions of the Business Corporations Act (Québec), we may elect to redeem the Class “H” Preferred Shares at any time at a price equal to the specified redemption price plus an amount equal to any dividends declared thereon but unpaid up to the date of redemption. The specified redemption price is, subject to certain conditions, equal to the aggregate consideration received for such share.

 

  (f) Sinking fund provisions: None.

 

  (g) Liability to further capital calls by us: None, provided that our directors may make calls upon the shareholders in respect of any moneys unpaid upon their shares.

 

  (h) Provisions discriminating against existing or prospective holders of our Class “H” Preferred Shares as a result of such holder owning a substantial number of our Class “H” Preferred Shares: None.

 

3.

Actions necessary to change the rights of shareholders. Under the Business Corporations Act (Québec), (i) the Articles may only be amended by the affirmative vote of the holders of two-thirds (  2 / 3 ) of the votes cast by the shareholders at a special meeting called for that purpose and (ii) our by-laws may be amended by our Board of Directors and ratified by a majority of the votes cast by the shareholders at the next shareholders meeting. Unless they are rejected by the shareholders at the close of the meeting or not submitted to the shareholders, the amended by-laws are effective as of the date of the resolution of the Board of Directors approving them. However, by-law amendments relating to procedural matters with respect to shareholders meetings take effect only once they have received shareholders approval. In addition, pursuant to the Business Corporations Act (Québec), we may not make any amendments to the Articles that affect the rights, conditions, privileges or restrictions attaching to issued shares of any series outstanding, other than an increase in the share capital or the number of our authorized shares, without obtaining the consent of all the shareholders concerned by the amendment, whether or not they are eligible to vote. In order to change the rights of our shareholders, we would need to amend our Articles to effect the change. Such an amendment would require the approval of holders of two-thirds (  2 / 3 ) of the shares at a duly called special meeting. For amendments affecting the rights of a particular class or series of shares, the holders of such class or series of shares are entitled to a separate vote, whether or not shares of this class or series otherwise carry the right to vote. Such a proposed amendment will be effected only if it receives the approval of two-thirds (  2 / 3 ) of holders of each such affected class or series of shares. In respect of certain amendments, a shareholder is entitled to dissent and, if the resolution is adopted and we implement the changes, demand that we repurchase all of its shares of such class or series for which a separate vote was carried out at their fair value.

 

4. Shareholder Meetings. Our by-laws and the Business Corporations Act (Québec) provide that the annual meeting of our shareholders shall be held within fifteen (15) months after the last preceding annual meeting. All shareholders meetings shall be held within the province of Québec at the place and time determined by our Board of Directors and may be called by order of our Board of Directors.

Our by-laws provide that notice specifying the place, date, time and purpose of any meeting of our shareholders shall be sent to all the shareholders entitled to vote and to each director at least 21 days but not more than 60 days before the meeting by any means providing proof of the date of sending at the addresses indicated in Videotron’s records.

Our chairman of the board or, in his absence, our vice-chair of the board, if any, or in his absence, our president and chief executive officer or any other person that may be named by the board shall preside at all meetings of our shareholders. If the person who is to chair the meeting is not present at the meeting within 15 minutes after the time appointed for the meeting, the shareholders present choose one of their own to chair the meeting.

 

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Our by-laws provide that a quorum of shareholders is present at a shareholders meeting if, at the opening of the meeting, one or several holders of 50% or more of the shares that carry the right to vote at the meeting are present in person or represented by proxy.

 

5.

Limitations on right to own securities. There is no limitation imposed by Canadian law or by the Articles or our other constituent documents on the right of non-residents or foreign owners to hold or vote shares, other than as provided in the Investment Canada Act (Canada) and the Radiocommunication Act. The Investment Canada Act (Canada) requires “non-Canadian” (as defined in the Investment Canada Act (Canada)) individuals, governments, corporations and other entities who wish to acquire control of a “Canadian business” (as defined in the Investment Canada Act (Canada)) to file either an application for review (when certain asset value thresholds are met) or a post closing notification with the Director of Investments appointed under the Investment Canada Act (Canada), unless a specific exemption applies. The Investment Canada Act (Canada) requires that, when an acquisition of control of a Canadian business by a “non-Canadian” is subject to review, it must be approved by the Minister responsible for the Investment Canada Act (Canada) on the basis that the Minister is satisfied that the acquisition is “likely to be of net benefit to Canada”, having regard to criteria set forth in the Investment Canada Act (Canada). Radio licenses may be issued under the Radiocommunication Act to radiocommunication service providers (“ Service Providers ”) that meet the eligibility criteria of Canadian ownership and control set forth in the Canadian Telecommunications Common Carrier Ownership and Control Regulations (the “ CTCCOCR ”). Under the CTCCOCR, the Service Provider may refuse to accept any subscription for or register the transfer of any of its voting shares unless it receives a declaration that such subscription or transfer would not result in the percentage of the total voting shares of the Service Provider that are beneficially owned and controlled by non-Canadians exceeding 33  1 / 3 %.

 

6. Provisions that could have the effect of delaying, deferring or preventing a change of control . The Articles provide that our directors shall refuse to issue (including on the occasion or because of a conversion of shares or in shares), and to allow a transfer of, any share of our capital stock if this issuance or transfer would, in the opinion of our directors, affect our eligibility or of any other corporation or partnership in which we have or may have an interest, to obtain, preserve or renew a license or authorization required for the operation or continuation of its broadcasting company (as defined in the Broadcasting Act, as amended) (or any part thereof) or of any other activity necessary for the continuation of our corporation. See “Item 4. Information on the Corporation — Regulation — Ownership and Control of Canadian Broadcast Undertakings”.

 

7. Not applicable.

 

8. Not applicable.

 

9. Not applicable.

 

C- Material Contracts

The following is a summary of each material contract, other than contracts entered into in the ordinary course of business, to which we or any of our subsidiaries is a party, for the two years preceding publication of this annual report.

 

  (a)

Indenture relating to US$175,000,000 of our 6  3 / 8 % Senior Notes due December   15, 2015, dated as of September   16, 2005, by and among Videotron, the guarantors party thereto, and Wells Fargo Bank, National Association, as trustee.

On September 16, 2005, we issued US$175,000,000 aggregate principal amount of our 6  3 / 8 % Senior Notes due December 15, 2015, pursuant to an Indenture, dated as of September 16, 2005, by and among Videotron, the guarantors party thereto, and Wells Fargo Bank, National Association, as trustee. These senior notes were unsecured and bore a maturity date of December 15, 2015. Interest on these senior notes is payable in cash semi-annually in arrears on June 15 and December 15 of each year. These senior notes are guaranteed on a senior unsecured basis by most, but not all, of our subsidiaries. These senior notes are redeemable, at our option, under certain circumstances and at the redemption prices set forth in the indenture. The indenture contains customary restrictive covenants with respect to us and certain of our

 

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subsidiaries, and customary events of default. If an event of default occurs and is continuing, other than our bankruptcy or insolvency, the trustee or the holders of at least 25% in principal amount at maturity of the then-outstanding senior notes may declare all the senior notes to be due and payable immediately. On April 10, 2015, we redeemed and retired the entire remaining principal amount outstanding of our 6  3 / 8 % Senior Notes due December 15, 2015.

 

  (b)

Indenture relating to US$715,000,000 of our 9  1 / 8 % Senior Notes due April   15, 2018, dated as of April   15, 2008, as supplemented, by and among Videotron, the guarantors party thereto, and Wells Fargo Bank, National Association, as trustee.

On April 15, 2008, we issued US$455,000,000 aggregate principal amount of our 9  1 / 8 % Senior Notes due April 15, 2018, and on March 5, 2009, we issued and sold an additional US$260,000,000 aggregate principal amount of our 9  1 / 8 % Senior Notes due April 15, 2018, in each case pursuant to an Indenture, dated as of April 15, 2008, by and among Videotron, the guarantors party thereto, and Wells Fargo Bank, National Association, as trustee. These senior notes, which form a single series and class, were unsecured and bore a maturity date of April 15, 2018. Interest on these senior notes is payable in cash semi-annually in arrears on June 15 and December 15 of each year. These senior notes are guaranteed on a senior unsecured basis by most, but not all, of our subsidiaries. These senior notes are redeemable, at our option, under certain circumstances and at the redemption prices set forth in an indenture dated as of April 15, 2008. This indenture contains customary restrictive covenants with respect to us and certain of our subsidiaries and customary events of default. If an event of default occurs and is continuing, other than our bankruptcy or insolvency, the trustee or the holders of at least 25% in principal amount at maturity of the then-outstanding senior notes may declare all of such senior notes to be due and payable immediately. On July 2, 2013, we redeemed and retired US$380,000,000 aggregate principal amount of our outstanding 9  1 / 8 % Senior Notes due 2018. On April 24, 2014, we redeemed and retired US$260,000,000 aggregate principal amount of our outstanding 9  1 / 8 % Senior Notes due 2018. On July 16, 2015, we redeemed and retired the entire remaining principal amount outstanding of our 9  1 / 8 % Senior Notes due April 15, 2018.

 

  (c)

Indenture relating to CAN$300,000,000 of our 7  1 / 8 % Senior Notes due January   15, 2020, dated as of January   13, 2010, as supplemented, by and among Videotron, the guarantors party thereto, and Computershare Trust Company of Canada, as trustee.

On January 13, 2010, we issued CAN$300,000,000 aggregate principal amount of our 7  1 / 8 % Senior Notes due January 15, 2020, pursuant to an Indenture, dated as of January 13, 2010, by and among Videotron, the guarantors party thereto, and Computershare Trust Company of Canada, as trustee. These senior notes were unsecured and bore a maturity date of January 15, 2020. Interest on these senior notes is payable in cash semi-annually in arrears on June 15 and December 15 of each year. These senior notes are guaranteed on a senior unsecured basis by most, but not all, of our subsidiaries. These senior notes are redeemable, at our option, under certain circumstances and at the redemption prices set forth in the indenture. The indenture contains customary restrictive covenants with respect to us and certain of our subsidiaries, and customary events of default. If an event of default occurs and is continuing, other than our bankruptcy or insolvency, the trustee or the holders of at least 25% in principal amount at maturity of the then-outstanding senior notes may declare all the senior notes to be due and payable immediately. The senior notes issued pursuant to this indenture were not and will not be registered under the Securities Act or under the laws of any other jurisdiction. On July 16, 2015, we redeemed and retired the entire remaining principal amount outstanding of our 7  1 / 8 % Senior Notes due January 15, 2020.

 

  (d)

Indenture relating to CAN$300,000,000 of our 6  7 / 8 % Senior Notes due July   15, 2021, dated as of July   5, 2011, as supplemented, by and among Videotron, the guarantors party thereto, and Computershare Trust Company of Canada, as trustee.

On July 5, 2011, we issued CAN$300,000,000 aggregate principal amount of our 6  7 / 8 % Senior Notes due July 15, 2021, pursuant to an Indenture, dated as of July 5, 2011, by and among Videotron, the guarantors party thereto, and Computershare Trust Company of Canada, as trustee. These senior notes are unsecured and mature on July 15, 2021. Interest on these senior notes is payable in cash semi-annually in arrears on

 

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June 15 and December 15 of each year. These senior notes are guaranteed on a senior unsecured basis by most, but not all, of our subsidiaries. These senior notes are redeemable, at our option, under certain circumstances and at the redemption prices set forth in the indenture. The indenture contains customary restrictive covenants with respect to us and certain of our subsidiaries, and customary events of default. If an event of default occurs and is continuing, other than our bankruptcy or insolvency, the trustee or the holders of at least 25% in principal amount at maturity of the then-outstanding senior notes may declare all the senior notes to be due and payable immediately. The senior notes issued pursuant to this indenture were not and will not be registered under the Securities Act or under the laws of any other jurisdiction.

 

  (e) Indenture relating to US$800,000,000 of our 5% Senior Notes due July   15, 2022, dated as of March   14, 2012, by and among Videotron, the guarantors party thereto, and Wells Fargo Bank, National Association, as trustee .

On March 14, 2012, we issued US$800,000,000 aggregate principal amount of our 5% Senior Notes due July 15, 2022, pursuant to an Indenture, dated as of March 14, 2012, by and among Videotron, the guarantors party thereto, and Wells Fargo Bank, National Association, as trustee. These senior notes are unsecured and mature on July 15, 2022. Interest on these senior notes is payable in cash semi-annually in arrears on January 15 and July 15 of each year. These senior notes are guaranteed on a senior unsecured basis by most, but not all, of our subsidiaries. These senior notes are redeemable, at our option, under certain circumstances and at the make-whole redemption price set forth in the indenture. This indenture contains customary restrictive covenants with respect to us and certain of our subsidiaries and customary events of default. If an event of default occurs and is continuing, other than our bankruptcy or insolvency, the trustee or the holders of at least 25% in principal amount at maturity of the then-outstanding senior notes may declare all the senior notes to be due and payable immediately.

 

  (f)

Indenture relating to CAN$400,000,000 of our 5  5 / 8 % Senior Notes due June   15, 2025, dated as of June   17, 2013, by and among Videotron, the guarantors party thereto, and Computershare Trust Company of Canada, as trustee.

On June 17, 2013, we issued CAN$400,000,000 aggregate principal amount of our 5  5 / 8 % Senior Notes due June 15, 2025, pursuant to an Indenture, dated as of June 17, 2013, by and among Videotron, the guarantors party thereto, and Computershare Trust Company of Canada, as trustee. These senior notes are unsecured and mature on June 15, 2025. Interest on these senior notes is payable in cash semi-annually in arrears on April 15 and October 15 of each year. These senior notes are guaranteed on a senior unsecured basis by most, but not all, of our subsidiaries. These senior notes are redeemable, at our option, under certain circumstances and at the make-whole redemption price set forth in the indenture. The indenture contains customary restrictive covenants with respect to us and certain of our subsidiaries, and customary events of default. If an event of default occurs and is continuing, other than our bankruptcy or insolvency, the trustee or the holders of at least 25% in principal amount at maturity of the then-outstanding senior notes may declare all the senior notes to be due and payable immediately. The senior notes issued pursuant to this indenture have not been and will not be registered under the Securities Act or under the laws of any other jurisdiction.

 

  (g)

Indenture relating to US$600,000,000 of our 5  3 / 8 % Senior Notes due June   15, 2024, dated as of April 9, 2014, by and among Videotron, the guarantors party thereto, and Wells Fargo Bank, National Association, as trustee.

On April 9, 2014, we issued US$600,000,000 aggregate principal amount of its 5  3 / 8 % Senior Notes due June 15, 2024, pursuant to an Indenture, dated as of April 9, 2014, by and among Videotron, the guarantors party thereto, and Wells Fargo Bank, National Association, as trustee. These senior notes are unsecured and mature on June 15, 2024. Interest on these senior notes is payable in cash semi-annually in arrears on June 15 and December 15 of each year. These senior notes are guaranteed on a senior unsecured basis by most, but not all, of our subsidiaries. These senior notes are redeemable, at our option, under certain circumstances and at the make-whole redemption price set forth in the indenture. The indenture contains customary restrictive covenants with respect to us and certain of our subsidiaries,

 

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and customary events of default. If an event of default occurs and is continuing, other than our bankruptcy or insolvency, the trustee or the holders of at least 25% in principal amount at maturity of the then-outstanding senior notes may declare all the senior notes to be due and payable immediately. The senior notes issued pursuant to this indenture have not been and will not be registered under the Securities Act or under the laws of any other jurisdiction.

 

  (h)

Indenture relating to CAN$375,000,000 of our 5  3 / 4 % Senior Notes due January   15, 2026, dated as of September   15, 2015, by and among Videotron, the guarantors party thereto, and Computershare Trust Company of Canada, as trustee.

On September 15, 2015, we issued CAN$375,000,000 aggregate principal amount of its 5  3 / 4 % Senior Notes due January 15, 2026, pursuant to an Indenture, dated as of September 15, 2015, by and among Videotron, the guarantors party thereto, and Computershare Trust Company of Canada, as trustee. These senior notes are unsecured and mature on January 15, 2026. Interest on these senior notes is payable in cash semi-annually in arrears on March 15 and September 15 of each year. These senior notes are guaranteed on a senior unsecured basis by most, but not all, of Videotron’s subsidiaries. These senior notes are redeemable, at Videotron’s option, under certain circumstances and at the redemption prices set forth in the indenture. The indenture contains customary restrictive covenants with respect to Videotron and certain of its subsidiaries, and customary events of default. If an event of default occurs and is continuing, other than Videotron’s bankruptcy or insolvency, the trustee or the holders of at least 25% in principal amount at maturity of the then-outstanding senior notes may declare all the senior notes to be due and payable immediately. The senior notes issued pursuant to this indenture have not been and will not be registered under the Securities Act or under the laws of any other jurisdiction.

 

  (i) Credit Agreement originally dated as of November   28, 2000, by and among Videotron, as borrower, the guarantors party thereto, the financial institutions party thereto from time to time, as lenders, and Royal Bank of Canada, as administrative agent, as amended.

Our senior credit facilities, as amended and restated as of June 16, 2015, provide for a $615,000,000 secured revolving credit facility and a $350,000,000 unsecured revolving credit facility that both mature on July 20, 2020, as well as a secured export financing facility (in a principal amount of $32,142,857 as of the amendment and restatement date of June 16, 2015) providing for a term loan that matures on June 15, 2018. The proceeds of the revolving credit facilities can be used for general corporate purposes including, without limitation, to issue letters of credit and to pay dividends to Quebecor Media subject to certain conditions. The proceeds of the term loan were used for payments and reimbursement of payments of export equipment and local services in relation to our contracts for mobile infrastructure equipment with an affiliate of Nokia Corporation and also for the financing of the Finnvera guarantee fee (Finnvera plc being a specialized financing company owned by the State of Finland which is providing an export buyer credit guarantee in favor of the lenders under the export financing facility covering political and commercial risks).

Advances under our secured revolving credit facility bear interest at the Canadian prime rate, the U.S. prime rate (solely under the swingline commitment) or the bankers’ acceptance rate plus, in each instance, an applicable margin determined by the Leverage Ratio (as defined in our credit agreement) of the Relevant Group (as defined in our credit agreement). The applicable margin for Canadian prime rate advances and U.S. prime rate advances ranges from 0.325% when this ratio is less than 1.5x, to 1.625% when this ratio is greater than or equal to 4.5x. The applicable margin for bankers’ acceptance advances or letters of credit fees ranges from 1.325% when this ratio is less than 1.5x, to 2.625% when this ratio is greater than or equal to 4.5x.

Advances under our unsecured revolving credit facility bear interest at the Canadian prime rate or the bankers’ acceptance rate plus, in each instance, an applicable margin determined by the Leverage Ratio (as referred to above). The applicable margin for Canadian prime rate advances ranges from 0.65% when this ratio is less than 1.5x, to 2.00% when this ratio is greater than or equal to 4.5x. The applicable margin for bankers’ acceptance advances or letters of credit fees ranges from 1.65% when this ratio is less than 1.5x, to 3.00% when this ratio is greater than or equal to 4.5x.

 

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We have also agreed to pay specified commitment fees in respect of our revolving credit facilities. Advances under our export financing facility bear interest at the bankers’ acceptance rate plus a margin at a rate of 0.875%.

Our revolving credit facilities are both repayable in full on July 20, 2020. Drawdowns under the export financing facility are repayable by way of seventeen equal and consecutive semi-annual payments that commenced on June 15, 2010.

Borrowings under our senior credit facilities (excluding the unsecured revolving credit facility) and under eligible derivative instruments are secured by a first-ranking hypothec or security interest (subject to certain permitted encumbrances) on all current and future assets of Videotron and of the guarantors under the senior credit facilities (which include most, but not all of Videotron’s subsidiaries), guarantees by such guarantors, pledges of shares by us and such guarantors and other security.

In respect of the unsecured revolving credit facility, our credit agreement contemplates that within approximately fifteen (15) days following the date on which our 6  7 / 8 % Senior Notes due 2021 have all been repaid in full, then the entire amount of the unsecured revolving credit facility shall be added to the amount of the secured revolving credit facility (with the relevant commitments being transferred and converted), such that all unsecured obligations under the unsecured revolving credit facility shall become secured obligations under the secured revolving credit facility.

Our senior credit facilities contain customary covenants that restrict and limit our ability and the members of the VL Group (as defined in the credit agreement to mean us and all of our wholly-owned subsidiaries) to, among other things, enter into merger or amalgamation transactions or liquidate or dissolve, grant encumbrances, sell assets, pay dividends or make other distributions, issue shares of capital stock, incur indebtedness and enter into related party transactions. In addition, our senior credit facilities contain customary financial covenants and customary events of default including the non-payment of principal or interest, the breach of any financial covenant, the failure to perform or observe any other covenant, certain bankruptcy events relating to us or any member of the VL Group (other than an Immaterial Subsidiary, as defined in the credit agreement), and the occurrence of a change of control.

 

D- Exchange Controls

There are currently no laws, decrees, regulations or other legislation in Canada that restricts the export or import of capital, or affects the remittance of dividends, interest or other payments to non-resident holders of our securities, other than withholding tax requirements. See “— Taxation — Canadian Material Federal Income Tax Considerations for Residents of the United States” below.

There is no limitation imposed by Canadian law or by the Articles or our other charter documents on the right of a non-resident to hold our voting shares, other than as provided by the Investment Canada Act (Canada), as amended, as amended by the North American Free Trade Agreement Implementation Act (Canada), and the World Trade Organization (WTO) Agreement Implementation Act . The Investment Canada Act (Canada) requires notification and, in certain cases, advance review and approval by the Government of Canada of the acquisition by a “non-Canadian” of “control of a Canadian business”, all as defined in the Investment Canada Act (Canada). Generally, the threshold for review will be higher in monetary terms for a member of the WTO or NAFTA. In addition, there are regulations related to the ownership and control of Canadian broadcast undertakings. See “Item 4. Information on the Corporation — Regulation”.

 

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E- Taxation

Certain U.S. Federal Income Tax Considerations

The following discussion is a summary of certain U.S. federal income tax consequences applicable to the purchase, ownership and disposition of (i) our 6  7 / 8 % Senior Notes due 2021 (our “ 6  7 / 8 % Senior Notes ”), (ii) our 5% Senior Notes due 2022 (our “ 5% Senior Notes ”), (iii) our 5  3 / 8 % Senior Notes due 2024 (our “ 5  3 / 8 % Senior Notes ”), (iv) our 5  5 / 8 % Senior Notes due 2025 (our “ 5  5 / 8 % Senior Notes ”), and (v) our 5  3 / 4 % Senior Notes (our “ 5  3 / 4 % Senior Notes ”) (collectively, the “ notes ”) by a U.S. Holder (as defined below), but does not purport to be a complete analysis of all potential U.S. federal income tax effects. Our 6  7 / 8 % Senior Notes, 5  5 / 8 % Senior Notes and our 5  3 / 4 % Senior Notes are denominated in Canadian dollars (the “ Canadian dollar Notes ”). This summary is based on the Internal Revenue Code of 1986, as amended (the “ Code ”), U.S. Treasury regulations promulgated thereunder, Internal Revenue Service (“ IRS ”) rulings and judicial decisions now in effect. All of these are subject to change, possibly with retroactive effect, or different interpretations.

This summary does not address all aspects of U.S. federal income taxation that may be relevant to particular U.S. Holders in light of their specific circumstances (for example, U.S. Holders subject to the alternative minimum tax provisions of the Code or U.S. Holders subject to the 3.8% Medicare tax on net investment income) or to U.S. Holders that may be subject to special rules under U.S. federal income tax law, including:

 

   

dealers in stocks, securities or currencies;

 

   

persons using a mark-to-market accounting method;

 

   

banks and financial institutions;

 

   

insurance companies;

 

   

regulated investment companies;

 

   

real estate investment trusts;

 

   

tax-exempt organizations;

 

   

persons holding notes as part of a hedging or conversion transaction or a straddle;

 

   

persons deemed to sell notes under the constructive sale provisions of the Code;

 

   

persons who or that are, or may become, subject to the expatriation provisions of the Code;

 

   

persons whose functional currency is not the U.S. dollar; and

 

   

direct, indirect or constructive owners of 10% or more of our outstanding voting shares.

The summary also does not discuss any aspect of state, local or non-U.S., or U.S. federal estate and gift tax law as applicable to U.S. Holders. Moreover, this discussion is limited to U.S. Holders who acquire and hold the notes as “capital assets” within the meaning of Section 1221 of the Code (generally, property held for investment). In addition, this summary assumes that the notes are properly characterized as debt that is not contingent debt for U.S. federal income tax purposes.

For purposes of this summary, “U.S. Holder” means the beneficial holder of a note who or that for U.S. federal income tax purposes is:

 

   

an individual citizen or resident alien of the United States;

 

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a corporation or other entity treated as such formed in or under the laws of the United States, any state thereof or the District of Columbia;

 

   

an estate, the income of which is subject to U.S. federal income taxation regardless of its source; or

 

   

a trust, if a court within the United States is able to exercise primary supervision over the administration of such trust and one or more “U.S. persons” (within the meaning of the Code) have the authority to control all substantial decisions of the trust, or if a valid election is in effect to be treated as a U.S. person.

No ruling has been or will be sought from the IRS with respect to the matters discussed below. There can be no assurance that the IRS will not take a different position concerning the tax consequences of the purchase, ownership or disposition of the notes or that any such position will not be sustained.

If a partnership or other entity or arrangement treated as a partnership for U.S. federal income tax purposes holds the notes, the U.S. federal income tax treatment of a partner generally will depend on the status of the partner and the activities of the partnership. Such partner should consult its own tax advisor as to the tax consequences of the partnership purchasing, owning and disposing of the notes.

 

U.S. INVESTORS SHOULD CONSULT THEIR OWN TAX ADVISORS WITH REGARD TO THE APPLICATION OF THE TAX CONSEQUENCES DESCRIBED BELOW TO THEIR PARTICULAR SITUATIONS AS WELL AS THE APPLICATION OF ANY STATE, LOCAL, NON-U.S. OR OTHER TAX LAWS, INCLUDING GIFT AND ESTATE TAX LAWS.

Interest on the Notes

Payments of stated interest on the notes generally will be taxable to a U.S. Holder as ordinary income at the time that such payments are received or accrued, in accordance with the U.S. Holder’s method of accounting for U.S. federal income tax purposes. Interest on the notes will constitute income from sources outside the United States and generally, with certain exceptions, will be “passive category income” which is treated separately from other income for purposes of computing the foreign tax credit allowable to a U.S. Holder under the federal income tax laws. Due to the complexity of the foreign tax credit rules, U.S. Holders should consult their own tax advisors with respect to the amount of foreign taxes that may be claimed as a credit.

In certain circumstances we may be obligated to pay amounts in excess of stated interest or principal on the notes or may make payments or redeem the notes in advance of their expected maturity. According to U.S. Treasury regulations, the possibility that any such payments or redemptions will be made will not affect the amount of interest income a U.S. Holder recognizes if there is only a remote chance as of the date the notes were issued that such payments will be made, or if such payments are incidental. We believe the likelihood that we will make any such payments is remote and/or that such payment will be incidental. Therefore, we do not intend to treat the potential payments or redemptions pursuant to the provisions related to changes in Canadian laws or regulations applicable to tax-related withholdings or deductions, any registration rights provisions, or the other redemption and repurchase provisions as part of the yield to maturity of the notes or as affecting the tax treatment of the notes. Our determination that these contingencies are remote and/or incidental is binding on a U.S. Holder unless such holder discloses its contrary position in the manner required by applicable U.S. Treasury regulations. Our determination is not, however, binding on the IRS, and if the IRS were to challenge this determination, a U.S. Holder may be required to accrue income on its notes in excess of stated interest and to treat as ordinary income rather than capital gain any income realized on the taxable disposition of a note before the resolution of the contingencies. In the event a contingency occurs, it would affect the amount and timing of the income recognized by a U.S. Holder. If we pay additional amounts on the notes, U.S. Holders will be required to recognize such amounts as income.

Interest on the Canadian dollar Notes will be included in a U.S. Holder’s gross income in an amount equal to the U.S. dollar value of the Canadian dollar amount, regardless of whether the Canadian dollars are converted into U.S. dollars. Generally, a U.S. Holder that uses the cash method of tax accounting will determine such U.S. dollar value using the spot rate of exchange on the date of receipt. A cash method U.S. Holder generally will not realize foreign currency gain or loss on the receipt of the interest payment but may have foreign currency gain or loss attributable to the actual disposition of the Canadian dollars received.

 

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Generally, a U.S. Holder of Canadian dollar Notes that uses the accrual method of tax accounting will determine the U.S. dollar value of accrued interest income using the average rate of exchange for the accrual period (or, with respect to an accrual period that spans two taxable years, at the average rate for the partial period within the U.S. Holder’s taxable year). Alternatively, an accrual basis U.S. Holder may make an election (which must be applied consistently to all debt instruments from year to year and cannot be changed without the consent of the IRS) to translate accrued interest income at the spot rate of exchange on the last day of the accrual period (or the last day of the taxable year in the case of a partial accrual period) or the spot rate on the date of receipt, if that date is within five business days of the last day of the accrual period. A U.S. Holder that uses the accrual method of accounting for tax purposes will recognize foreign currency gain or loss on the receipt of an interest payment if the exchange rate in effect on the date payment is received differs from the rate applicable to an accrual of that interest. The amount of foreign currency gain or loss to be recognized by such U.S. Holder will be an amount equal to the difference between the U.S. dollar value of the Canadian dollar interest payment (determined on the basis of the spot rate on the date the interest income is received) in respect of the accrual period and the U.S. dollar value of the interest income that has accrued during the accrual period (as determined above). This foreign currency gain or loss will be ordinary income or loss and generally will not be treated as an adjustment to interest income or expense.

Foreign currency gain or loss generally will be U.S. source provided that the residence of a taxpayer is considered to be the United States for purposes of the rules regarding foreign currency gain or loss.

Market Discount and Bond Premium

Market Discount

If a U.S. Holder purchases notes for an amount less than their stated redemption price at maturity, the difference is treated as market discount. Subject to a de minimis exception, gain realized on the maturity, sale, exchange or retirement of a market discount note will be treated as ordinary income to the extent of any accrued market discount not previously recognized (including in the case of a note exchanged for a registered note pursuant to a registration offer, any market discount accrued on the related outstanding note). A U.S. Holder may elect to include market discount in income currently as it accrues, on either a ratable or constant yield method. In that case, a U.S. Holder’s tax basis in its notes will increase by such income inclusions. An election to include market discount in income currently, once made, will apply to all market discount obligations acquired by the U.S. Holder during the taxable year of the election and thereafter, and may not be revoked without the consent of the IRS. If a U.S. Holder does not make such an election, in general, all or a portion of such holder’s interest expense on any indebtedness incurred or continued in order to purchase or carry notes may be deferred until the maturity of the notes, or certain earlier dispositions. Unless a U.S. Holder elects to accrue market discount under a constant yield method, any market discount will accrue ratably during the period from the date of acquisition of the related outstanding note to its maturity date.

In the case of Canadian dollar Notes, market discount is accrued in Canadian dollars, and the amount includible in income by a U.S. Holder upon a sale of such note in respect of accrued market discount will be the U.S. dollar value of the amount accrued. Such U.S. dollar value is generally calculated at the spot rate of exchange on the date such note is sold. Any market discount on a Canadian dollar Note that is currently includible in income under the election noted above will be translated into U.S. dollars at the average exchange rate for the accrual period or portion of such accrual period within the U.S. Holder’s taxable year. In such case, a U.S. Holder generally will recognize foreign currency gain or loss with respect to accrued market discount under the rules similar to those that apply to accrued interest on a note received by an accrual basis U.S. Holder, as described above.

Bond Premium

If a U.S. Holder purchases notes for an amount greater than the sum of all amounts (other than qualified stated interest) payable with respect to the notes after the date of acquisition, such holder will have purchased such notes with amortizable bond premium. A U.S. Holder generally may elect to amortize that premium from the purchase date to the maturity date of the notes under a constant yield method. Amortizable premium generally may be deducted against

 

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interest income on such notes and generally may not be deducted against other income. A U.S. Holder’s basis in a note will be reduced by any premium amortization deductions. An election to amortize premium on a constant yield method, once made, generally applies to all debt obligations held or subsequently acquired by a U.S. Holder during the taxable year of the election and thereafter, and may not be revoked without IRS consent. For a U.S. Holder that did not elect to amortize bond premium, the amount of such premium will be included in such U.S. Holder’s tax basis upon the sale of a note. In the case of Canadian dollar Notes, premium is computed in Canadian dollars. At the time amortized bond premium offsets interest income, foreign currency gain or loss (taxable as ordinary income or loss) will be realized on such amortized bond premium based on the difference between the spot rate of exchange on the date or dates such premium is recovered through interest payments on the Canadian dollar Note and the spot rate of exchange on the date on which the U.S. Holder acquired the note.

The market discount and bond premium rules are complicated, and U.S. Holders are urged to consult their own tax advisors regarding the tax consequences of owning and disposing of notes with market discount or bond premium, including the availability of certain elections.

Sale, Exchange or Retirement of a Note

A U.S. Holder generally will recognize gain or loss upon the sale, exchange (other than in a tax-free transaction), redemption, retirement or other taxable disposition of a note, equal to the difference, if any, between:

 

   

the amount realized (or the U.S. dollar value thereof if received in a foreign currency) less any portion allocable to the payment of accrued interest not previously included in income, which amount will be taxable as ordinary interest income; and

 

   

the U.S. Holder’s adjusted tax basis in the note.

Except with respect to gains or losses attributable to changes in exchange rates, as described below, gain or loss so recognized generally will be capital gain or loss (except as described under “— Market Discount and Bond Premium” above) and generally will be long-term capital gain or loss if the note has been held or deemed held for more than one year at the time of the disposition. Long-term capital gains of noncorporate U.S. Holders, including individuals, may be taxed at lower rates than items of ordinary income. The ability of a U.S. Holder to offset capital losses against ordinary income is limited. Any capital gain or loss recognized by a U.S. Holder on the sale or other disposition of a note generally will be treated as income from sources within the United States or loss allocable to income from sources within the United States. U.S. Holders should consult their own tax advisors regarding the source of gain attributable to market discount.

A U.S. Holder’s adjusted tax basis in a note will generally equal the U.S. Holder’s U.S. dollar cost therefor, increased by the amount of market discount, if any, previously included in income in respect of the note and decreased (but not below zero) by the amount of principal payments received by such U.S. Holder in respect of the note, any amounts treated as a return of pre-issuance accrued interest and the amount of amortized bond premium, if any, previously taken into account with respect to the note. If a U.S. Holder purchases a Canadian dollar Note with Canadian dollars, the U.S. dollar cost of the Canadian dollar Note will generally be the U.S. dollar value of the purchase price on the date of purchase calculated at the spot rate of exchange on that date. The amount realized upon the disposition of a Canadian dollar Note will generally be the U.S. dollar value of the amount received on the date of the disposition calculated at the spot rate of exchange on that date. However, if the Canadian dollar Note is traded on an established securities market, a cash basis U.S. Holder (and, if it so elects, an accrual basis U.S. Holder) will determine the U.S. dollar value of the cost of or amount received on the Canadian dollar Note, as applicable, by translating the amount paid or received at the spot rate of exchange on the settlement date of the purchase or disposition. The election available to accrual basis U.S. Holders in respect of the purchase and disposition of Canadian dollar Notes traded on an established securities market must be applied consistently to all debt instruments from year to year and cannot be changed without the consent of the IRS.

Gain or loss recognized by a U.S. Holder on the sale, exchange or retirement of a Canadian dollar Note that is attributable to changes in the rate of exchange between the U.S. dollar and foreign currency generally will be treated as U.S. source ordinary income or loss. Such foreign currency gain or loss will equal the difference between (i) the U.S. dollar value of the U.S. Holder’s Canadian dollar purchase price for the Canadian dollar Note calculated at the spot rate of exchange on the date of the sale, exchange, retirement or other disposition and (ii) the U.S. dollar value of the U.S.

 

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Holder’s Canadian dollar purchase price for the Canadian dollar Note calculated at the spot rate of exchange on the date of purchase of the Canadian dollar Note. If the Canadian dollar Note is traded on an established securities market, with respect to a cash basis U.S. Holder (and, if it so elects, an accrual basis U.S. Holder), such foreign currency gain or loss will equal the difference between (x) the U.S. dollar value of the U.S. Holder’s Canadian dollar purchase price for the Canadian dollar Note calculated at the spot rate of exchange on the settlement date of the disposition and (y) the U.S. dollar value of the U.S. Holder’s Canadian dollar purchase price for the Canadian dollar Note calculated at the spot rate of exchange on the settlement date of the purchase of the Canadian dollar Note. Such foreign currency gain or loss is recognized on the sale or retirement of such Note only to the extent of total gain or loss recognized on the sale or retirement of such Note. Prospective investors should consult their own tax advisors regarding certain foreign currency translation elections that may be available with respect to a sale, exchange, or redemption of the Canadian dollar Notes.

Transactions in Foreign Currency

Foreign currency received as a payment of interest on, or on the sale or retirement of, a Canadian dollar Note will have a tax basis equal to its U.S. dollar value at the time such interest is received or at the time the note is disposed of or payment is received in consideration of such sale or retirement (as applicable). The amount of gain or loss recognized on a subsequent sale or other disposition of such foreign currency will be equal to the difference between (i) the amount of U.S. dollars, or the fair market value in U.S. dollars of the other currency or property received in such sale or other disposition, and (ii) the tax basis of the recipient in such foreign currency. A U.S. Holder who acquires such Note with previously owned foreign currency will recognize ordinary income or loss in an amount equal to the difference, if any, between such U.S. Holder’s tax basis in the foreign currency and the U.S. dollar fair market value of the note on the date of acquisition. Such gain or loss generally will be treated as income or loss from sources within the United States for foreign tax credit limitation purposes.

Reportable Transaction Reporting

Under certain U.S. Treasury Regulations, U.S. Holders that participate in “reportable transactions” (as defined in the regulations) must attach to their U.S. federal income tax returns a disclosure statement on IRS Form 8886. Under the relevant rules, a U.S. Holder may be required to treat a foreign currency exchange loss from the Canadian dollar Note as a reportable transaction if this loss exceeds the relevant threshold in the regulations. For individuals and trusts, this loss threshold is US$50,000 in any single year. U.S. Holders should consult their own tax advisors as to the possible obligation to file IRS Form 8886 with respect to the ownership or disposition of the Canadian dollar Notes, or any related transaction, including without limitation, the disposition of any non-U.S. currency received as interest or as proceeds from the sale, exchange, retirement or other disposition of the Canadian dollar Notes.

Information Reporting and Backup Withholding

In general, information reporting requirements may apply to payments of principal and interest on a note and to the proceeds of the sale or other disposition of a note made to U.S. Holders other than certain exempt recipients (such as corporations). A U.S. Holder of the notes may be subject to “backup withholding” with respect to certain “reportable payments”, including interest payments and, under certain circumstances, principal payments on the notes or upon the receipt of proceeds upon the sale or other disposition of such notes. These backup withholding rules apply if the U.S. Holder, among other things:

 

   

fails to furnish a social security number or other taxpayer identification number (“ TIN ”) certified under penalty of perjury within a reasonable time after the request for the TIN;

 

   

furnishes an incorrect TIN;

 

   

is notified by the IRS that it has failed to report properly interest or dividends; or

 

   

under certain circumstances, fails to provide a certified statement, signed under penalties of perjury, that the TIN furnished is the correct number and that such holder is not subject to backup withholding.

 

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A U.S. Holder that does not provide us with its correct TIN also may be subject to penalties imposed by the IRS. Any amount withheld from a payment to a U.S. Holder under the backup withholding rules is creditable against the U.S. Holder’s federal income tax liability, provided that the required information is timely furnished to the IRS. Backup withholding will not apply, however, with respect to payments made to certain exempt U.S. Holders, including corporations and tax-exempt organizations, provided their exemptions from backup withholding are properly established.

In addition, U.S. individuals that hold specified foreign financial assets (including stock and securities of a foreign issuer) with an aggregate value in excess of US$50,000 on the last day of the taxable year or US$75,000 at any time during the taxable year are required to report their holdings, along with other information, on their tax returns, with certain exceptions. Holders should consult their own tax advisors to determine the scope of these disclosure responsibilities.

Certain Canadian Material Federal Income Tax Considerations for Residents of the United States

The following is, at the date hereof, a summary of the principal Canadian federal income tax considerations generally applicable to a holder who acquires, as beneficial owner, the Senior Notes, including entitlement to all payments thereunder, pursuant to this offering and who, at all relevant times and for the purposes of the Income Tax Act (Canada) (the “Tax Act”) and the regulations thereunder, (i) is not, and is not deemed to be, resident in Canada (including as a consequence of the Canada-United States Income Tax Convention (1980), as amended), (ii) deals at arm’s length with Videotron and with any transferee resident or deemed resident in Canada to whom the holder disposes of Senior Notes, (iii) does not use or hold and is not deemed to use or hold the Senior Notes in or in the course of carrying on business in Canada, (iv) does not receive any payment of interest (including any amounts deemed to be interest) on the Senior Notes in respect of a debt or other obligation to pay an amount to a person with whom Videotron does not deal at arm’s length, (v) is not an “authorized foreign bank”, as defined in the Tax Act, (vi) is not a “registered non-resident insurer”, as defined in the Tax Act, (vii) is not an insurer carrying on an insurance business in Canada and elsewhere, and (viii) is not a, and deals at arm’s length with any, “specified shareholder” of Videotron for purposes of the thin capitalization rules in the Tax Act (a “ Non-Resident Holder ”). A “specified shareholder” for these purposes generally includes a person who (either alone or together with persons with whom that person is not dealing at arm’s length for the purposes of the Tax Act) owns or has the right to acquire or control or is otherwise deemed to own 25% or more of Videotron’s shares determined on a votes or fair market value basis.

This summary is based on the current provisions of the Tax Act and the regulations thereunder and the current administrative and assessing practices and policies of the Canada Revenue Agency published in writing prior to the date hereof. This summary takes into account all specific proposals to amend the Tax Act and the regulations thereunder announced by or on behalf of the Minister of Finance of Canada prior to the date hereof (the “ Proposed Amendments ”) and assumes that all Proposed Amendments will be enacted in the form proposed. However, no assurance can be given that the Proposed Amendments will be enacted as proposed or at all. This summary does not otherwise take into account or anticipate any changes in law or any administrative or assessing practice, whether by judicial, governmental, regulatory or legislative decision or action, nor does it take into account provincial, territorial or foreign income tax considerations which may differ from the Canadian federal income tax considerations described herein.

 

THIS SUMMARY IS OF A GENERAL NATURE ONLY AND IS NOT EXHAUSTIVE OF ALL CANADIAN FEDERAL INCOME TAX CONSIDERATIONS THAT MAY BE RELEVANT TO A PARTICULAR HOLDER. THIS SUMMARY IS NOT INTENDED TO BE, AND SHOULD NOT BE INTERPRETED AS, LEGAL OR TAX ADVICE TO ANY PARTICULAR HOLDER, AND NO REPRESENTATION WITH RESPECT TO THE INCOME TAX CONSEQUENCES TO ANY PARTICULAR HOLDER IS MADE. ACCORDINGLY, YOU SHOULD CONSULT YOUR OWN TAX ADVISORS WITH RESPECT TO YOUR PARTICULAR CIRCUMSTANCES.

No Canadian withholding tax will apply to interest (including any amounts deemed to be interest), principal or premium paid or credited by Videotron on the Senior Notes to a Non-Resident Holder, or to the proceeds received by a Non-Resident Holder on a disposition of a Senior Note, including a redemption, payment on maturity, repurchase or purchase for cancellation.

No other taxes on income or gains will be payable under the Tax Act by a Non-Resident Holder on interest (including any amounts deemed to be interest), principal or premium or on the proceeds received by such Non-Resident Holder on the disposition of a Senior Note, including a redemption, payment on maturity, repurchase or purchase for cancellation.

 

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F- Dividends and Paying Agents

Not applicable.

 

G- Statement By Experts

Not applicable.

 

H- Documents on Display

We file periodic reports and other information with the SEC. These reports include certain financial and statistical information about us and may be accompanied by exhibits. You may read and copy this information at the Public Reference Room at the SEC’s Headquarters, located at 100 F Street, N.E., Room 1580, Washington, D.C. 20549, or obtain copies of this information by mail from the Public Reference Room at the prescribed rates. You may call the SEC at 1-800-SEC-0330 for further information on the SEC’s Public Reference Room. The SEC also maintains an Internet website that contains reports and other information about issuers like us who file electronically with the SEC. The URL of that website is http://www.sec.gov. Any documents referred to in this annual report may also be inspected without charge at our offices at 612 St. Jacques Street, Montréal, Québec, Canada, H3C 4M8.

 

I- Subsidiary Information

Not applicable.

ITEM  11 – QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK

We use certain financial instruments, such as cross-currency interest rate swaps and foreign exchange forward contracts, to manage interest rate and foreign exchange risk exposures. These instruments are used solely to manage the financial risks associated with our obligations and are not used for trading or speculation purposes. For more information regarding our financial instruments and financial risk management, refer to Note 25 to our audited consolidated financial statements for the year ended December 31, 2015 included under “Item 18. Financial Statements” of this annual report.

Foreign Currency Risk

Most of our consolidated revenues and expenses, other than interest expense on U.S.-dollar-denominated debt, purchases of set-top boxes, handsets and cable modems and certain capital expenditures, are received or denominated in Canadian dollars. A large portion of the interest, principal and premium, if any, payable on our debt is payable in U.S. dollars. We have entered into transactions to hedge the foreign currency risk exposure on our U.S.-dollar-denominated debt obligations outstanding as of December 31, 2015, to hedge our exposure on certain purchases of set-top boxes, handsets, cable modems and capital expenditures and to lock-in the value of certain derivative financial instruments through offsetting transactions. Accordingly, the Corporation’s sensitivity to variations in foreign exchange rates is economically limited.

Interest Rate Risk

Videotron’s bank credit facilities bear interest at floating rates based on the following reference rates: (i) Bankers’ acceptance rate, (ii) Canadian prime rate and (iii) U.S. prime rate. The Senior Notes issued by Videotron bear interest at fixed rates. Videotron has entered into cross-currency interest rate swap agreements in order to manage interest rate risk exposure. As of December 31, 2015, after taking into account the hedging instruments, long-term debt was comprised of 84.0% fixed rate debt (85.0% in 2014) and 16.0% floating rate debt (15.0% in 2014).

The estimated sensitivity on interest payments of a 100 basis-point variance in the year-end Canadian Bankers’ acceptance rate as of December 31, 2015 is $4.5 million.

 

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Credit Risk

Credit risk is the risk of financial loss to Videotron if a customer or counterparty to a financial asset fails to meet its contractual obligations.

In the normal course of business, Videotron continuously monitors the financial condition of its customers and reviews the credit history of each new customer. As of December 31, 2015, no customer balance represented a significant portion of Videotron’s consolidated accounts receivables. Videotron establishes an allowance for doubtful accounts based on the specific credit risk of its customers and historical trends. The allowance for doubtful accounts amounted to $16.6 million as of December 31, 2015 ($15.4 million as of December 31, 2014). As of December 31, 2015, 7.4% of accounts receivables were 90 days past their billing date (7.0% as of December 31, 2014), of which 63.3% had an allowance for doubtful accounts (61.2% as of December 31, 2014).

Videotron believes that its product lines and the diversity of its customer base are instrumental in reducing its credit risk, as well as the impact of fluctuations in product-line demand. Videotron does not believe that it is exposed to an unusual level of customer credit risk.

As a result of its use of derivative financial instruments, Videotron is exposed to the risk of non-performance by a third party. When Videotron enters into derivative contracts, the counterparties (either foreign or Canadian) must have credit ratings at least in accordance with Videotron’s risk management policy and are subject to concentration limits. These credit ratings and concentration limits are monitored on an ongoing basis but at least quarterly.

Fair Value of Financial Instruments

See “Item 5 – Operating and Financial Review and Prospects – Additional Information – Financial Instruments and Financial Risks – Fair Value of Financial Instruments” in this annual report.

Material Limitations

Fair value estimates are made at a specific point in time and are based on relevant market information about the financial instruments. These estimates are subjective in nature and involve uncertainties and matters of significant judgment and therefore cannot be determined with precision. Changes in assumptions could significantly affect the estimates.

Principal Repayments

As at December 31, 2015, the aggregate amount of minimum principal payments on long-term debt required in each of the next five years and thereafter based on borrowing levels as at that date, are as follows:

 

Year ending December 31,

   (in thousands of dollars)  

2016

     10,714   

2017

     10,714   

2018

     5,358   

2019

     —     

2020

     246,729   

2021 and thereafter

     3,012,600   
  

 

 

 

Total

   $ 3,286,115   

ITEM 12 – DESCRIPTION OF SECURITIES OTHER THAN EQUITY SECURITIES

Not applicable.

ITEM 13 – DEFAULTS, DIVIDEND ARREARAGES AND DELINQUENCIES

None.

 

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ITEM 14 – MATERIAL MODIFICATIONS TO THE RIGHTS OF SECURITY HOLDERS AND USE OF PROCEEDS

Material Modifications to the Rights of Security Holders

There have been no material modifications to the rights of security holders.

Use of Proceeds

Not applicable.

ITEM 15 – CONTROLS AND PROCEDURES

As at the end of the period covered by this report, Videotron’s President and Chief Executive Officer and Videotron’s Senior Vice President and Chief Financial Officer, together with members of Videotron’s senior management, have carried out an evaluation of the effectiveness of Videotron’s disclosure controls and procedures. These are defined (in Rule 13a-15(e) or 15d-15(e) under the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”)) as controls and procedures designed to ensure that information required to be disclosed in reports filed under the Exchange Act is recorded, processed, summarized and reported within specified time periods. As of the date of the evaluation, Videotron’s President and Chief Executive Officer and Videotron’s Senior Vice President and Chief Financial Officer, concluded that Videotron’s disclosure controls and procedures were effective to ensure that information required to be disclosed in the reports that Videotron files or submits under the Exchange Act is accumulated and communicated to management, including the Corporation’s principal executive and principal financial officer, to allow timely decisions regarding disclosure.

Videotron’s management is responsible for establishing and maintaining adequate internal control over financial reporting of the Corporation (as defined by Rules 13a-15(f) and 15d-15(f) under the Exchange Act). Videotron’s internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of consolidated financial statements for external purposes in accordance with IFRS. Our internal control over financial reporting includes those policies and procedures that (i) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of Videotron’s assets; (ii) provide reasonable assurance that transactions are recorded as necessary to permit preparation of consolidated financial statements in accordance with IFRS, and that receipts and expenditures of Videotron are being made only in accordance with authorizations of Videotron’s management and directors; and (iii) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use, or disposition of Videotron’s assets that could have a material effect on the consolidated financial statements. Because of its inherent limitations, internal controls over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.

Videotron’s management conducted an evaluation of the effectiveness of internal control over financial reporting based on the framework in Internal Control – Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission (“ COSO ”). Based on this evaluation, management concluded that Videotron’s internal control over financial reporting was effective as of December 31, 2015.

Pursuant to the Dodd–Frank Wall Street Reform and Consumer Protection Act of 2010 and related SEC rules, Videotron is not required to include in its annual report an attestation report of Videotron’s independent registered public accounting firm regarding Videotron’s internal control over financial reporting. Our management’s report regarding the effectiveness of our internal control over financial reporting was therefore not subject to attestation procedures by Videotron’s independent registered public accounting firm.

There have been no changes in Videotron’s internal control over financial reporting (as defined in Rule 13a-15 or 15d-15 under the Exchange Act) that occurred during the period covered by this annual report that have materially affected, or are reasonably likely to materially affect, Videotron’s internal control over financial reporting.

 

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ITEM 16 – [RESERVED]

ITEM 16A – AUDIT COMMITTEE FINANCIAL EXPERT

Our Board of Directors has determined that Mr. La Couture is an “audit committee financial expert” (as defined in Item 16A of Form 20-F) serving on our Audit Committee. Our Board of Directors has determined that Mr. La Couture is an “independent” director, as defined under SEC rules.

ITEM 16B – CODE OF ETHICS

We have a Code of Ethics (as defined in Item 16B of Form 20-F) that applies to all directors, officers and employees of Videotron, including our Chief Executive Officer, Chief Financial Officer, principal accounting officer, controller and persons performing similar functions. Our Code of Ethics is included as an exhibit to this annual report on Form 20-F.

ITEM 16C – PRINCIPAL ACCOUNTANT FEES AND SERVICES

Ernst & Young LLP has served as our independent registered public accounting firm for the fiscal years ended December 31, 2015, 2014 and 2013. The audited consolidated financial statements for each of the fiscal years in the three-year period ended December 31, 2015 are included in this annual report on Form 20-F.

The Audit Committee establishes the independent auditors’ compensation. The Audit Committee adopted a policy relating to the pre-approval of services to be rendered by its independent auditors. The Audit Committee pre-approves all audit services, determines which non-audit services the independent auditors are prohibited from providing, and authorizes permitted non-audit services to be performed by the independent auditors to the extent those services are permitted by the Sarbanes-Oxley Act and Canadian law. For each of the years ended December 31, 2015, 2014 and 2013, none of the non-audit services described below were approved by the Audit Committee of our Board of Directors pursuant to the “ de minimis exception” to the pre-approval requirement for non-audit services. The following table presents the aggregate fees billed for professional services and other services rendered by our independent auditors, Ernst & Young LLP, for the fiscal years ended December 31, 2015, 2014 and 2013.

 

     2015      2014      2013  

Audit Fees (1)

   $ 940,918       $ 916,811       $ 1,055,899   

Audit related Fees (2)

     78,351         62,467         48,837   

All Other Fees (3)

     15,067         17,347         10,710   

Total

   $ 1,034,336       $ 996,625       $ 1,115,446   

 

(1) Audit Fees consist of fees approved for the annual audit of the Corporation’s consolidated financial statements and quarterly reviews of interim financial statements of the Corporation with the SEC, including required assistance or services that only the external auditor reasonably can provide and accounting consultations on specific issues.
(2) Audit-Related Fees include fees for the review of one subsidiary’s financial statements and various reports to statutory authorities.
(3) All Other Fees include fees billed for assistance with Canadian, U.S. and international tax compliance.

ITEM 16D – EXEMPTIONS FROM THE LISTING STANDARDS FOR AUDIT COMMITTEES

Not applicable.

ITEM 16E – PURCHASES OF EQUITY SECURITIES BY THE ISSUER AND AFFILIATED PURCHASERS

Not applicable.

ITEM 16F – CHANGES IN REGISTRANT’S CERTIFYING ACCOUNTANT

Not applicable.

ITEM 16G – CORPORATE GOVERNANCE

Not applicable.

 

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ITEM 17 – FINANCIAL STATEMENTS

Not applicable.

ITEM  18 – FINANCIAL STATEMENTS

Our consolidated balance sheets as at December 31, 2015 and 2014 and the related consolidated statements of income, comprehensive income, equity and cash flows for each of the years in the three-year period ended December 31, 2015, including the notes thereto and together with the report of the Independent Registered Public Accounting Firm, are included beginning on page F-1 of this annual report.

ITEM 19 – EXHIBITS

The following documents are filed as exhibits to this Form 20-F:

 

  1.1    Certificate and Articles of Amalgamation of Videotron Ltd. as of July 1, 2006 (translation) (incorporated by reference to Exhibit 1.1 to Videotron Ltd.’s Annual Report on Form 20-F for the fiscal year ended December 31, 2006, filed on March 30, 2007).
  1.2    Certificate and Articles of Amendment of Videotron Ltd. as of June 30, 2008 (incorporated by reference to Exhibit 1.2 of Videotron Ltd.’s Annual Report on Form 20-F for the fiscal year ended December 31, 2008, filed on March 6, 2009).
  1.3    Certificate and Articles of Amendment of Videotron Ltd. as of December 12, 2008 (incorporated by reference to Exhibit 1.3 of Videotron Ltd.’s Annual Report on Form 20-F for the fiscal year ended December 31, 2008, filed on March 6, 2009).
  1.4    By-laws of Videotron Ltd. (translation) (incorporated by reference to Exhibit 1.4 of Videotron Ltd.’s Annual Report on Form 20-F for the fiscal year ended December 31, 2011, filed on March 21, 2012).
  1.5    Certificate and Articles of Amalgamation of Le SuperClub Vidéotron ltée (translation) (incorporated by reference to Exhibit 1.5 of Videotron Ltd.’s Annual Report on Form 20-F for the fiscal year ended December 31, 2008, filed on March 6, 2009).
  1.6    By-laws of Le SuperClub Vidéotron ltée (translation) (incorporated by reference to Exhibit 1.6 of Videotron Ltd.’s Annual Report on Form 20-F for the fiscal year ended December 31, 2011, filed on March 21, 2012).
  1.7    Certificate of Amendment for Le SuperClub Vidéotron Ltée (translation) (incorporated by reference to Exhibit 1.7 to Videotron Ltd.’s Annual Report on Form 20-F for the fiscal year ended December 31, 2013, filed on March 20, 2014, Commission file No. 033-51000).
  1.8    Articles of Incorporation of Vidéotron Infrastructures Inc., as amended as of February 17, 2011 (incorporated by reference to Exhibit 1.7 to Videotron Ltd.’s Annual Report on Form 20-F for the fiscal year ended December 31, 2010, filed on March 21, 2011).
  1.9    By-laws of Vidéotron Infrastructures Inc. (translation) (incorporated by reference to Exhibit 1.8 of Videotron Ltd.’s Annual Report on Form 20-F for the fiscal year ended December 31, 2011, filed on March 21, 2012).
  1.10    Certificate of Incorporation of Videotron US Inc. as of September 20, 2007 (incorporated by reference to Exhibit 1.9 of Videotron Ltd.’s Annual Report on Form 20-F for the fiscal year ended December 31, 2008, filed on March 6, 2009).
  1.11    Amended and Restated Certificate of Incorporation of Videotron US Inc. as of October 1, 2008 (incorporated by reference to Exhibit 1.10 of Videotron Ltd.’s Annual Report on Form 20-F for the fiscal year ended December 31, 2008, filed on March 6, 2009).

 

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  1.12    By-laws of Videotron US Inc. (incorporated by reference to Exhibit 1.11 of Videotron Ltd.’s Annual Report on Form 20-F for the fiscal year ended December 31, 2008, filed on March 6, 2009).
  1.13    Declaration of registration of Videotron G.P. (incorporated by reference to Exhibit 1.12 to Videotron Ltd.’s Annual Report on Form 20-F for the fiscal year ended December 31, 2010, filed on March 21, 2011).
  1.14    Declaration of registration of Videotron L.P. (incorporated by reference to Exhibit 1.13 to Videotron Ltd.’s Annual Report on Form 20-F for the fiscal year ended December 31, 2010, filed on March 21, 2011).
  1.15    Certificate and Articles of Constitution of 9230-7677 Québec inc. (translation) (incorporated by reference to Exhibit 1.14 to Videotron Ltd.’s Annual Report on Form 20-F for the fiscal year ended December 31, 2010, filed on March 21, 2011).
  1.16    By-laws of 9230-7677 Québec inc. (translation) (incorporated by reference to Exhibit 1.15 of Videotron Ltd.’s Annual Report on Form 20-F for the fiscal year ended December 31, 2011, filed on March 21, 2012).
  1.17    Certificate and Articles of Incorporation of Jobboom inc. (translation) (incorporated by reference to Exhibit 1.16 of Videotron Ltd.’s Annual Report on Form 20-F for the fiscal year ended December 31, 2011, filed on March 21, 2012).
  1.18    By-laws of Jobboom inc. (translation) (incorporated by reference to Exhibit 1.17 of Videotron Ltd.’s Annual Report on Form 20-F for the fiscal year ended December 31, 2011, filed on March 21, 2012).
  1.19    Certificate and Articles of Amalgamation of Jobboom Inc. as of May 30, 2013 (translation) (incorporated by reference to Exhibit 1.19 to Videotron Ltd.’s Annual Report on Form 20-F for the fiscal year ended December 31, 2013, filed on March 20, 2014, Commission file No. 033-51000).
  1.20    Certificate of Amendment of 8487782 Canada Inc. as of May 30, 2013 (translation) (incorporated by reference to Exhibit 1.20 to Videotron Ltd.’s Annual Report on Form 20-F for the fiscal year ended December 31, 2013, filed on March 20, 2014, Commission file No. 033-51000).
  1.21    By-laws of 8487782 Canada Inc. (translation) (incorporated by reference to Exhibit 1.21 to Videotron Ltd.’s Annual Report on Form 20-F for the fiscal year ended December 31, 2013, filed on March 20, 2014, Commission file No. 033-51000).
  1.22    Certificate and Articles of Constitution of 9227-2590 Québec inc. (translation) (incorporated by reference to Exhibit 1.18 of Videotron Ltd.’s Annual Report on Form 20-F for the fiscal year ended December 31, 2011, filed on March 21, 2012, Commission file No. 033-51000).
  1.23    By-laws of 9227-2590 Québec inc. (translation) (incorporated by reference to Exhibit 1.19 of Videotron Ltd.’s Annual Report on Form 20-F for the fiscal year ended December 31, 2011, filed on March 21, 2012, Commission file No. 033-51000).
  1.24    Certificate and Articles of Constitution of 4Degrees Colocation Inc. (translation)
  1.25    By-laws of 4Degrees Colocation Inc. (translation)
  1.26    Certificate and Articles of Incorporation as of 9529454 Canada Inc. as of November 30, 2011 (translation).
  1.27    By-laws of 9529454 Canada Inc. (translation).
  1.28    Certificate and Articles of Amalgamation of 8480869 Canada Inc. as of January 7, 2016.
  1.29    By-laws of 8480869 Canada Inc. (translation).

 

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  1.30    Certificate and Articles of Amalgamation of Fibre Noire Internet Inc. as of April 19, 2013, as amended on June 27, 2014, and January 6, 2016.
  1.31    By-laws of Fibrenoire Inc. (translation).
  1.32    Certificate and Articles of Incorporation of Canadian P2P Fibre Systems Ltd. as of June 15, 2007.
  1.33    By-laws of Canadian P2P Fibre Systems Ltd (translation).
  2.1    Form of 6  7 / 8 % Senior Notes due July 15, 2021 of Videotron Ltd. (incorporated by reference to Exhibit A to Exhibit 2.42 to Videotron Ltd.’s Annual Report on Form 20-F for the fiscal year ended December 31, 2011, filed on March 21, 2012, Commission file No. 033-51000).
  2.2    Form of Notation of Guarantee of the subsidiary guarantors of the 6  7 / 8 % Senior Notes due July 15, 2021 of Videotron Ltd. (incorporated by reference to Exhibit E to Exhibit 2.42 to Videotron Ltd.’s Annual Report on Form 20-F for the fiscal year ended December 31, 2011, filed on March 21, 2012, Commission file No. 033-51000).
  2.3    Indenture, dated as of July 5, 2011, by and among Videotron Ltd., the subsidiary guarantors signatory thereto and Computershare Trust Company of Canada, as trustee (incorporated by reference to Exhibit 2.42 of Videotron Ltd.’s Annual Report on Form 20-F for the fiscal year ended December 31, 2011, filed on March 21, 2012, Commission file No. 033-51000).
  2.4    Supplemental Indenture, dated as of March 12, 2015, by and among Videotron Ltd., 4Degrees Colocation Inc., as guarantor, and Computershare Trust Company of Canada, as trustee, to the Indenture dated as of July 5, 2011.
  2.5    Supplemental Indenture, dated as of January 8, 2016, by and among Videotron, 9529454 Canada Inc., 8480869 Canada Inc., Fibrenoire Inc. and Canadian P2P Fibre Systems Ltd., as guarantors, and Computershare Trust Company of Canada, as trustee, to the Indenture dated as of July 5, 2011.
  2.6    Form of 5% Senior Notes due July 15, 2022 of Videotron Ltd. (incorporated by reference to Exhibit A to Exhibit 2.47 to Videotron Ltd.’s Annual Report on Form 20-F for the fiscal year ended December 31, 2011, filed on March 21, 2012, Commission file No. 033-51000).
  2.7    Form of Notation of Guarantee by the subsidiary guarantors of the 5% Senior Notes due July 15, 2022 of Videotron Ltd. (incorporated by reference to Exhibit E to Exhibit 2.47 to Videotron Ltd.’s Annual Report on Form 20-F for the fiscal year ended December 31, 2011, filed on March 21, 2012, Commission file No. 033-51000).
  2.8    Indenture, dated as of March 14, 2012, by and among Videotron Ltd., the subsidiary guarantors signatory thereto and Wells Fargo Bank, National Association, as trustee (incorporated by reference to Exhibit 2.47 to Videotron Ltd.’s Annual Report on Form 20-F for the fiscal year ended December 31, 2011, filed on March 21, 2012, Commission file No. 033-51000).
  2.9    Supplemental Indenture, dated as of March 12, 2015, by and among Videotron Ltd., 4Degrees Colocation Inc., as guarantor, and Wells Fargo Bank, National Association, as trustee, to the Indenture dated as of March 14, 2012.
  2.10    Supplemental Indenture, dated as of January 8, 2016, by and among Videotron, 9529454 Canada Inc., 8480869 Canada Inc., Fibrenoire Inc. and Canadian P2P Fibre Systems Ltd., as guarantors, and Wells Fargo Bank, National Association, as trustee, to the Indenture dated as of March 14, 2012.
  2.11    Form of 5  5 / 8 % Senior Notes due June 15, 2025 of Videotron Ltd. (incorporated by reference to Exhibit A to Exhibit 2.40 to Videotron Ltd.‘s Annual Report on Form 20-F for the fiscal year ended December 31, 2013, filed on March 20, 2014, Commission file No. 033-51000).

 

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  2.12    Form of Notation of Guarantee of the subsidiary guarantors of the 5  5 / 8 % Senior Notes due June 15, 2025 of Videotron Ltd. (incorporated by reference to Exhibit E to Exhibit 2.40 to Videotron Ltd.‘s Annual Report on Form 20-F for the fiscal year ended December 31, 2013, filed on March 20, 2014, Commission file No. 033-5100).
  2.13    Indenture, dated as of June 17, 2013, by and among Videotron Ltd., the subsidiary guarantors party thereto, and Computershare Trust Company of Canada, as trustee (incorporated by reference to Exhibit 2.40 to Videotron Ltd.‘s Annual Report on Form 20-F for the fiscal year ended December 31, 2013, filed on March 20, 2014, Commission file No. 033-51000).
  2.14    Supplemental Indenture, dated as of March 12, 2015, by and among Videotron Ltd., 4Degrees Colocation Inc., as guarantor, and Computershare Trust Company of Canada, as trustee, to the Indenture dated as of June 17, 2013.
  2.15    Supplemental Indenture, dated as of January 8, 2016, by and among Videotron, 9529454 Canada Inc., 8480869 Canada Inc., Fibrenoire Inc. and Canadian P2P Fibre Systems Ltd., as guarantors, and Computershare Trust Company of Canada, as trustee, to the Indenture dated as of June 17, 2013 (incorporated by reference to Exhibit 2.5 above).
  2.16    Form of 5  3 / 8 % Senior Notes due June 15, 2024 of Videotron Ltd. (incorporated by reference to Exhibit A to Exhibit 2.32 to Videotron Ltd.’s Annual Report on Form 20-F for the fiscal year ended December 31, 2014, filed on March 23, 2015, Commission file No. 033-51000).
  2.17    Form of Notation of Guarantee of the subsidiary guarantors of the 5  3 / 8 % Senior Notes due June 15, 2024 of Videotron Ltd. (incorporated by reference to Exhibit E to Exhibit 2.32 to Videotron Ltd.’s Annual Report on Form 20-F for the fiscal year ended December 31, 2014, filed on March 23, 2015, Commission file No. 033-51000).
  2.18    Indenture, dated as of April 9, 2014, by and among Videotron Ltd., the subsidiary guarantors party thereto, and Wells Fargo Bank, National Association, as trustee (incorporated by reference to Exhibit 2.32 to Videotron Ltd.’s Annual Report on Form 20-F for the fiscal year ended December 31, 2014, filed on March 23, 2015, Commission file No. 033-51000).
  2.19    Supplemental Indenture, dated as of March 12, 2015, by and among Videotron Ltd., 4Degrees Colocation Inc., as guarantor, and Wells Fargo Bank, National Association, as trustee, to the Indenture dated as of April 9, 2014.
  2.20    Supplemental Indenture, dated as of January 8, 2016, by and among Videotron, 9529454 Canada Inc., 8480869 Canada Inc., Fibrenoire Inc. and Canadian P2P Fibre Systems Ltd., as guarantors, and Wells Fargo Bank, National Association, as trustee, to the Indenture dated as of April 9, 2014.
  2.21    Form of 5  3 / 4 % Senior Notes due January 15, 2026 of Videotron Ltd. (incorporated by reference to Exhibit A to Exhibit 2.23 below).
  2.22    Form of Notation of Guarantee by the subsidiary guarantors of the 5  3 / 4 % Senior Notes due January 15, 2026 of Videotron Ltd. (incorporated by reference to Exhibit E to Exhibit 2.23 below).
  2.23    Indenture, dated as of September 15, 2015, by and among Videotron Ltd., the subsidiary guarantors signatory thereto and Computershare Trust Company of Canada, as trustee.
  2.24    Supplemental Indenture, dated as of January 8, 2016, by and among Videotron, 9529454 Canada Inc., 8480869 Canada Inc., Fibrenoire Inc. and Canadian P2P Fibre Systems Ltd., as guarantors, and Computershare Trust Company of Canada, as trustee, to the Indenture dated as of September 15, 2015 (incorporated by reference to Exhibit 2.5 above).

 

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  4.1    Amended and Restated Credit Agreement, dated as of July 20, 2011, by and among Videotron Ltd., Royal Bank of Canada, as administrative agent, and the financial institutions signatory thereto and acknowledged by Le SuperClub Videotron, Videotron Infrastructures Inc., Jobboom Inc., Videotron US Inc., 9227-2590 Québec Inc., 9230-7677 Québec Inc., Videotron G.P., and Videotron L.P., as guarantors (incorporated by reference to Exhibit 4.1 to Videotron Ltd.’s Annual Report on Form 20-F for the fiscal year ended December 31, 2011, filed on March 21, 2012, Commission file No. 033-51000).
  4.2    First Amending Agreement, dated as of June 14, 2013, amending the Amended and Restated Credit Agreement, dated as of July 20, 2011, by and among Videotron Ltd., Royal Bank of Canada, as administrative agent, and the financial institutions signatory thereto and acknowledged by Le SuperClub Videotron, Videotron Infrastructures Inc., Videotron US Inc., 9227-2590 Québec inc., 9230-7677 Québec inc., Videotron G.P., Videotron L.P. and 8487782 Canada Inc. as guarantors (incorporated by reference to Exhibit 4.2 to Videotron Ltd.’s Annual Report on Form 20-F for the fiscal year ended December 31, 2013, filed on March 20, 2014, Commission file, No. 033-51000).
  4.3    Second Amending Agreement, dated as of January 28, 2015, amending the Amended and Restated Credit Agreement, dated as of July 20, 2011, as amended, by and among Videotron Ltd., Royal Bank of Canada, as administrative agent, and the financial institutions signatory thereto and acknowledged by 9293-6707 Québec Inc., 9227-2590 Québec Inc., 9230-7677 Québec Inc., 8487782 Canada Inc., Videotron G.P., Videotron L.P. and Videotron Infrastructures Inc., as guarantors.
  4.4    Third Amending Agreement, dated as of June 16, 2015, amending the Amended and Restated Credit Agreement, dated as of July 20, 2011, as amended, by and among Videotron Ltd., Royal Bank of Canada, as administrative agent, and the financial institutions signatory thereto and acknowledged by 9293-6707 Québec Inc., 9227-2590 Québec Inc., 9230-7677 Québec Inc., 8487782 Canada Inc., Videotron G.P., Videotron L.P., Videotron Infrastructures Inc. and 4Degrees Colocation Inc., as guarantors.
  4.6    Form of Guarantee of the Guarantors of the Credit Agreement (incorporated by reference to Schedule D of Exhibit 4.1 to Videotron Ltd.’s Annual Report on Form 20-F for the fiscal year ended December 31, 2011, filed on March 21, 2012, Commission file No. 033-51000).
  4.7    Form of Share Pledge of the shares of Videotron Ltd. and the Guarantors of the Credit Agreement (incorporated by reference to Schedule E of Exhibit 4.1 to Videotron Ltd.’s Annual Report on Form 20-F for the fiscal year ended December 31, 2011, filed on March 21, 2012, Commission file No. 033-51000).
  4.8    Management Services Agreement, effective as of January 1, 2002, between Quebecor Media and Videotron Ltd. (incorporated by reference to Exhibit 10.5 to Videotron Ltd.’s Registration Statement on Form F-4 dated November 24, 2003, Registration Statement No. 333-110697).
  7.1    Statement regarding calculation of ratio of earnings to fixed charges.
  8.1    Subsidiaries of Videotron Ltd.
  11.1    Code of Ethics. (incorporated by reference to Exhibit 11.1 of Videotron Ltd.’s Annual Report on Form 20-F for the fiscal year ended December 31, 2008, filed on March 6, 2009).
  12.1    Certification of Manon Brouillette, President and Chief Executive Officer of Videotron Ltd., pursuant to 15 U.S.C. Section 78(m)(a), as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
  12.2    Certification of Hugues Simard, Senior Vice President and Chief Financial Officer of Videotron Ltd., pursuant to 15 U.S.C. Section 78(m)(a), as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
  13.1    Certification of Manon Brouillette, President and Chief Executive Officer of Videotron Ltd., pursuant to 18 U.S.C. Section 1350 as adopted pursuant to Section 906 of the Sarbanes Oxley Act of 2002.
  13.2    Certification of Hugues Simard, Senior Vice President and Chief Financial Officer of Videotron Ltd. pursuant to 18 U.S.C. Section 1350 as adopted pursuant to Section 906 of the Sarbanes Oxley Act of 2002.

 

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SIGNATURE

The registrant hereby certifies that it meets all of the requirements for filing on Form 20-F and that it has duly caused and authorized the undersigned to sign this annual report on its behalf.

 

VIDEOTRON LTD.

By:

 

/s/ Hugues Simard

  Name: Hugues Simard
  Title: Senior Vice President and
Chief Financial Officer

Dated: March 18, 2016

 

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VIDEOTRON LTD.

CONSOLIDATED FINANCIAL STATEMENTS

Years ended December 31, 2015, 2014 and 2013

 

 

Report of Independent Registered Public Accounting Firm

  

Consolidated financial statements

  

Consolidated statements of income

     F-3   

Consolidated statements of comprehensive income

     F-4   

Consolidated statements of equity

     F-5   

Consolidated statements of cash flows

     F-6   

Consolidated balance sheets

     F-8   

Notes to consolidated financial statements

     F-10   

 

F-1


Table of Contents

Report of Independent Registered Public Accounting Firm

To the Board of Directors and to the shareholder of Videotron Ltd.

We have audited the accompanying consolidated balance sheets of Videotron Ltd. as of December 31, 2015 and 2014, and the related consolidated statements of income, comprehensive income, equity and cash flows for each of the three years in the period ended December 31, 2015. These consolidated financial statements are the responsibility of the Corporation’s management. Our responsibility is to express an opinion on these consolidated financial statements based on our audits.

We conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the consolidated financial statements are free of material misstatement. We were not engaged to perform an audit of the Corporation’s internal control over financial reporting. Our audits included consideration of internal control over financial reporting as a basis for designing audit procedures that are appropriate in the circumstances, but not for the purpose of expressing an opinion on the effectiveness of the Corporation’s internal control over financial reporting. Accordingly, we express no such opinion. An audit also includes examining, on a test basis, evidence supporting the amounts and disclosures in the consolidated financial statements, assessing the accounting principles used and significant estimates made by management, and evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.

In our opinion, the consolidated financial statements referred to above present fairly, in all material respects, the consolidated financial position of Videotron Ltd. at December 31, 2015 and 2014, and the consolidated results of its operations and its cash flows for each of the three years in the period ended December 31, 2015, in conformity with International Financial Reporting Standards as issued by the International Accounting Standards Board.

/ S / E RNST  & Y OUNG LLP 1

Montreal, Canada

March 8, 2016

 

1  

FCPA auditor, FCA public accountancy permit no. A107913

 

LOGO    
  A member firm of Ernst & Young Global Limited

 

 

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VIDEOTRON LTD.

CONSOLIDATED STATEMENTS OF INCOME

Years ended December 31, 2015, 2014 and 2013

(in thousands of Canadian dollars)

 

 

     Note      2015     2014     2013  

Revenues

         

Cable television

      $ 1,053,797      $ 1,074,821      $ 1,090,261   

Internet

        920,746        856,051        814,682   

Cable telephony

        458,028        475,143        473,798   

Mobile telephony

        403,668        287,665        220,561   

Over-the-top video

        23,596        12,213        3,718   

Business solutions

        69,134        65,632        63,525   

Equipment sales

        57,627        45,627        36,524   

Other

        11,383        9,613        8,754   
     

 

 

   

 

 

   

 

 

 
        2,997,979        2,826,765        2,711,823   

Employee costs

     2         356,503        342,399        347,097   

Purchase of goods and services

     2         1,259,179        1,136,055        1,079,919   

Depreciation and amortization

        625,366        601,381        561,743   

Financial expenses

     3         167,429        169,177        174,145   

Loss on valuation and translation of financial instruments

     4         518        3,430        163,725   

Loss on debt refinancing

     5         12,153        21,403        18,912   

(Gain) loss on litigation, restructuring of operations and other items

     6         (129,737     39,445        684   
     

 

 

   

 

 

   

 

 

 

Income before income taxes

        706,568        513,475        365,598   

Income taxes

         

Current

     7         54,412        107,839        79,792   

Deferred

     7         66,253        (14,556     (50,343
     

 

 

   

 

 

   

 

 

 
        120,665        93,283        29,449   
     

 

 

   

 

 

   

 

 

 

Income from continuing operations

        585,903        420,192        336,149   

Income from discontinued operations

     8         —          —          40,706   
     

 

 

   

 

 

   

 

 

 

Net income

      $ 585,903      $ 420,192      $ 376,855   
     

 

 

   

 

 

   

 

 

 

Net income from continuing operations attributable to

         

Shareholder

      $ 585,851      $ 420,169      $ 335,842   

Non-controlling interests

        52        23        307   

Net income attributable to

         

Shareholder

      $ 585,851      $ 420,169      $ 376,548   

Non-controlling interests

        52        23        307   

See accompanying notes to consolidated financial statements.

 

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VIDEOTRON LTD.

CONSOLIDATED STATEMENTS OF COMPREHENSIVE INCOME

Years ended December 31, 2015, 2014 and 2013

(in thousands of Canadian dollars)

 

 

     Note      2015     2014     2013  

Net income

      $ 585,903      $ 420,192      $ 376,855   

Other comprehensive (loss) income:

         

Items that may be reclassified to income:

         

Cash flows hedges:

         

Gain (loss) on valuation of derivative financial instruments

        2,054        7,193        (24,975

Deferred income taxes

        (22,096     (10,006     (349

Items that will not be reclassified to income:

         

Defined benefit plans:

         

Re-measurement (loss) gain

     27         (9,614     (47,918     56,755   

Deferred income taxes

        2,590        12,890        (15,197

Reclassification to income:

         

(Gain) loss related to cash flows hedges

     5         (3,914     1,640        (6,516

Deferred income taxes

        1,125        (1,679     199   
     

 

 

   

 

 

   

 

 

 
        (29,855     (37,880     9,917   
     

 

 

   

 

 

   

 

 

 

Comprehensive income

      $ 556,048      $ 382,312      $ 386,772   
     

 

 

   

 

 

   

 

 

 

Comprehensive income attributable to

         

Shareholder

      $ 555,996      $ 382,289      $ 386,465   

Non-controlling interests

        52        23        307   

See accompanying notes to consolidated financial statements.

 

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VIDEOTRON LTD.

CONSOLIDATED STATEMENTS OF EQUITY

Years ended December 31, 2015, 2014 and 2013

(in thousands of Canadian dollars)

 

 

     Equity attributable to shareholder              
     Capital stock
(note 20)
    Retained
earnings
    Accumulated
other
comprehensive
loss (note 22)
    Equity
attributable to
non-controlling
interests
    Total equity  

Balance as of December 31, 2012

     3,401        788,894        (19,026     1,037        774,306   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Net income

     —          376,548        —          307        376,855   

Other comprehensive income

     —          —          9,917        —          9,917   

Related party transaction

     —          22,953        —          —          22,953   

Dividends

     —          (361,880     —          (401     (362,281
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Balance as of December 31, 2013

     3,401        826,515        (9,109)        943        821,750   

Net income

     —          420,169        —          23        420,192   

Other comprehensive loss

     —          —          (37,880     —          (37,880

Dividends

     —          (410,000     —          (155     (410,155
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Balance as of December 31, 2014

     3,401        836,684        (46,989     811        793,907   

Net income

     —          585,851        —          52        585,903   

Other comprehensive loss (note 22)

     —          —          (29,855     —          (29,855

Issuance of capital stock (note 20)

     170,000        —          —          —          170,000   

Reduction in paid-up capital (note 20)

     (41,000     —          —          —          (41,000

Dividends

     —          (665,000     —          (155     (665,155
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Balance as of December 31, 2015

   $ 132,401      $ 757,535      $ (76,844   $ 708      $ 813,800   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

See accompanying notes to consolidated financial statements.

 

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VIDEOTRON LTD.

CONSOLIDATED STATEMENTS OF CASH FLOWS

Years ended December 31, 2015, 2014 and 2013

(in thousands of Canadian dollars)

 

 

     Note      2015     2014     2013  

Cash flows related to operating activities

         

Income from continuing operations

      $ 585,903      $ 420,192      $ 336,149   

Adjustments for:

         

Depreciation of fixed assets

     12         545,612        490,501        455,189   

Amortization of intangible assets

     13         79,754        110,880        106,554   

Loss on valuation and translation of financial instruments

     4         518        3,430        163,725   

Amortization of financing costs and long-term debt discount

     3         4,008        4,650        5,263   

Deferred income taxes

     7         66,253        (14,556     (50,343

Loss on debt refinancing

     5         12,153        21,403        18,912   

Other

        6,262        4,262        2,882   
     

 

 

   

 

 

   

 

 

 
        1,300,463        1,040,762        1,038,331   

Net change in non-cash balances related to operating activities

        (92,499     65,690        20,009   
     

 

 

   

 

 

   

 

 

 

Cash flows provided by continuing operating activities

        1,207,964        1,106,452        1,058,340   

Cash flows related to investing activities

         

Additions to fixed assets

     12         (630,076     (606,040     (530,878

Additions to intangible assets

     13         (312,062     (304,548     (67,616

Net proceeds from business disposal

     8         7,848        —          50,318   

Business acquisition (net of cash acquired)

     9         (35,167     —          —     

Dividends from an affiliated corporation

        —          —          10,500   

(Acquisition) redemption of preferred shares of an affiliated corporation

     11         (1,010,000     1,200,000        (650,000

Proceeds from disposal of assets

        4,375        5,493        12,801   
     

 

 

   

 

 

   

 

 

 

Cash flows (used in) provided by continuing investing activities

        (1,975,082     294,905        (1,174,875

Cash flows related to financing activities

         

Net change in bank indebtedness

        11,698        —          —     

Net change under revolving credit facility, net of financing fees

        244,631        —          —     

Issuance of long-term debt, net of financing fees

     18         370,130        654,475        394,820   

Repayment of long-term debt

     5, 18         (637,083     (306,160     (428,547

Settlement of hedging contracts

     5         (37,131     (119,157     19,431   

Issuance of capital stock

     20         170,000        —          —     

Reduction in paid-up capital

     20         (41,000     —          —     

Dividends

        (665,000     (410,000     (361,880

Issuance (repayment) of a loan from the parent corporation

     11         1,010,000        (1,200,000     650,000   

Other

        (155     (182     (1,223
     

 

 

   

 

 

   

 

 

 

Cash flows provided by (used in) continuing financing activities

        426,090        (1,381,024     272,601   

Net change in cash and cash equivalents from continuing operations

        (341,028     20,333        156,066   

Cash flows provided by discontinued operations

     8         —          —          3,172   

Cash and cash equivalents at the beginning of the year

        342,802        322,469        163,231   
     

 

 

   

 

 

   

 

 

 

Cash and cash equivalents at the end of the year

      $ 1,774      $ 342,802      $ 322,469   
     

 

 

   

 

 

   

 

 

 

 

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VIDEOTRON LTD.

CONSOLIDATED STATEMENTS OF CASH FLOWS (continued)

Years ended December 31, 2015, 2014 and 2013

(in thousands of Canadian dollars)

 

 

     2015     2014     2013  

Additional information on the consolidated statements of cash flows

      

Cash and cash equivalents consist of

      

Cash

   $ 175      $ 103,369      $ 93,156   

Cash equivalents

     1,599        239,433        229,313   
  

 

 

   

 

 

   

 

 

 
   $ 1,774      $ 342,802      $ 322,469   
  

 

 

   

 

 

   

 

 

 

Changes in non-cash balances related to operating activities

      

Accounts receivable

   $ (13,515   $ (8,860   $ 4,444   

Amounts receivable from and payable to affiliated corporations

     12,017        18,836        11,341   

Inventories

     (35,139     15,194        1,147   

Prepaid expenses

     (7,709     1,938        (9,344

Accounts payable, accrued charges and provisions

     31,751        39,582        (43,944

Income taxes

     (85,072     (10,672     59,320   

Stock-based compensation

     57        798        (3,477

Deferred revenues

     (1,505     8,159        (1,249

Defined benefit plans

     571        (6,765     (6,068

Other

     6,045        7,480        7,839   
  

 

 

   

 

 

   

 

 

 
   $ (92,499   $ 65,690      $ 20,009   
  

 

 

   

 

 

   

 

 

 

Non-cash investing activities

      

Net change in additions to fixed assets and intangible assets financed with accounts payable

   $ (11,751   $ 1,387      $ (1,243
  

 

 

   

 

 

   

 

 

 

Interest and taxes reflected as operating activities

      

Cash interest payments

   $ 150,094      $ 168,164      $ 168,436   

Cash income tax payments (net of refunds)

     139,502        120,277        21,789   
  

 

 

   

 

 

   

 

 

 

See accompanying notes to consolidated financial statements.

 

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VIDEOTRON LTD.

CONSOLIDATED BALANCE SHEETS

December 31, 2015 and 2014

(in thousands of Canadian dollars)

 

 

     Note      2015      2014  

Assets

        

Current assets

        

Cash and cash equivalents

      $ 1,774       $ 342,802   

Accounts receivable

        272,593         259,030   

Income taxes

        17,896         —     

Amounts receivable from affiliated corporations

     26         12,330         18,324   

Inventories

     10         114,206         79,066   

Prepaid expenses

        31,158         23,735   
     

 

 

    

 

 

 

Total current assets

        449,957         722,957   
     

 

 

    

 

 

 

Non-current assets

        

Investments

     11         2,090,000         1,080,000   

Fixed assets

     12         3,080,687         3,000,816   

Intangible assets

     13         1,071,398         830,585   

Goodwill

     14         448,864         429,252   

Derivative financial instruments

     25         494,197         164,859   

Other assets

     15         21,456         27,127   
     

 

 

    

 

 

 

Total non-current assets

        7,206,602         5,532,639   
     

 

 

    

 

 

 

Total assets

      $ 7,656,559       $ 6,255,596   
     

 

 

    

 

 

 

 

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VIDEOTRON LTD.

CONSOLIDATED BALANCE SHEETS (continued)

December 31, 2015 and 2014

(in thousands of Canadian dollars)

 

 

     Note      2015     2014  

Liabilities and equity

       

Current liabilities

       

Bank indebtedness

      $ 11,698      $ —     

Accounts payable and accrued charges

     16         422,769        412,917   

Amounts payable to affiliated corporations

     26         62,913        49,384   

Provisions

     17         55,564        45,744   

Deferred revenue

        267,283        262,496   

Income taxes

        —          69,819   

Derivative financial instruments

     25         —          902   

Current portion of long-term debt

     18         10,714        213,688   
     

 

 

   

 

 

 

Total current liabilities

        830,941        1,054,950   
     

 

 

   

 

 

 

Non-current liabilities

       

Long-term debt

     18         3,255,928        2,710,852   

Subordinated loan from parent corporation

     11         2,090,000        1,080,000   

Derivative financial instruments

     25         —          52,718   

Deferred income taxes

     7         561,318        476,317   

Other liabilities

     19         104,572        86,852   
     

 

 

   

 

 

 

Total non-current liabilities

        6,011,818        4,406,739   
     

 

 

   

 

 

 

Total liabilities

        6,842,759        5,461,689   
     

 

 

   

 

 

 

Equity

       

Capital stock

     20         132,401        3,401   

Retained earnings

        757,535        836,684   

Accumulated other comprehensive loss

     22         (76,844     (46,989
     

 

 

   

 

 

 

Equity attributable to shareholder

        813,092        793,096   

Non-controlling interests

        708        811   
     

 

 

   

 

 

 

Total equity

        813,800        793,907   

Commitments and contingencies

     17, 23        

Guarantees

     24        

Subsequent event

     28        
     

 

 

   

 

 

 

Total liabilities and equity

      $ 7,656,559      $ 6,255,596   
     

 

 

   

 

 

 

See accompanying notes to consolidated financial statements.

On March 8, 2016, the Board of Directors approved the consolidated financial statements for the years ended December 31, 2015, 2014 and 2013.

On behalf of the Board of Directors,

 

/s/ Jean La Couture   /s/ A. Michel Lavigne
Jean La Couture, Director   A. Michel Lavigne, Director

 

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Table of Contents

VIDEOTRON LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

Years ended December 31, 2015, 2014 and 2013

(tabular amounts in thousands of Canadian dollars, except for option data)

 

Videotron Ltd. (the “Corporation”) is incorporated under the laws of Québec and is a wholly owned subsidiary of Quebecor Media Inc. (the parent corporation) and is a subsidiary of Quebecor Inc. (the ultimate parent corporation). The Corporation’s head office and registered office is located at 612, rue Saint-Jacques, Montréal (Québec), Canada. The percentages of voting rights and equity in its major subsidiaries are as follows:

 

     %
equity
and
voting
 

Videotron G.P.

     100.0

Videotron Infrastructures Inc.

     100.0

Videotron US Inc.

     100.0

4 Degrees Colocation Inc.

     100.0

SETTE Inc.

     84.53

The Corporation offers television distribution, Internet access, business solutions, cable and mobile telephony and over-the-top video services in Canada and is engaged in the rental of movies and televisual products through its video-on-demand services.

 

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Table of Contents

VIDEOTRON LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (continued)

Years ended December 31, 2015, 2014 and 2013

(tabular amounts in thousands of Canadian dollars, except for option data)

 

 

1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES

 

  (a) Basis of presentation

The consolidated financial statements have been prepared in accordance with IFRS as issued by the International Accounting Standards Board.

These consolidated financial statements have been prepared on a historical cost basis, except for certain financial instruments (note 1(j)), the liability related to stock-based compensation (note 1(s)), and the net defined benefit liability (note 1(t)), and they are presented in Canadian dollars (“CAN dollars”), which is the currency of the primary economic environment in which the Corporation and its subsidiaries operate (“functional currency”).

Comparative figures for the years ended December 31, 2014 and 2013 have been restated to conform to the presentation adopted for the year ended December 31, 2015.

 

  (b) Change in accounting estimates

In the second quarter of 2015, the Corporation changed its assessment of the useful life of its spectrum licences used in its operations. In light of recent spectrum auctions and developments in the telecommunication industry, the Corporation is now of the view that these spectrum licences have an indefinite useful life based on the following facts:

 

   

The Corporation intends to renew the spectrum licences and believes that they are likely to be renewed by Innovation, Science and Economic Development Canada;

 

   

The Corporation has the financial and operational ability to renew these spectrum licences;

 

   

Currently, the competitive, legal and regulatory landscape does not limit the useful lives of the spectrum licences; and

 

   

The Corporation foresees no limit to the period during which these licences can be expected to generate cash flows in the future.

Accordingly, the Corporation ceased to amortize spectrum licences used in its operations as of April 1, 2015 and no amortization expense has been recorded after this date. The straight-line amortization expense recorded relating to these licences was $13.9 million in 2015 ($55.4 million in 2014 and 2013).

 

  (c) Consolidation

The consolidated financial statements include the accounts of the Corporation and its subsidiaries. Intercompany transactions and balances are eliminated on consolidation.

A subsidiary is an entity controlled by the Corporation. Control is achieved when the Corporation is exposed, or has rights, to variable returns from its involvement with the entity and has the ability to affect those returns through its power over the entity.

Non-controlling interests in the net assets and results of consolidated subsidiaries are identified separately from the parent corporation’s ownership interest in them. Non-controlling interests in the equity of a subsidiary consist of the amount of non-controlling interests calculated at the date of the original business combination and their share of changes in equity since that date. Changes in non-controlling interests in a subsidiary that do not result in a loss of control by the Corporation are accounted for as equity transactions.

 

  (d) Business combinations

A business combination is accounted for by the acquisition method. The cost of an acquisition is measured at the fair value of the consideration given in exchange for control of the business acquired at the acquisition date. This consideration can be comprised of cash, assets transferred, financial instruments issued, or future contingent payments. The identifiable assets and liabilities of the business acquired are recognized at their fair value at the acquisition date. Results of operations of a business acquired are included in the Corporation’s consolidated financial statements from the date of the business acquisition. Business acquisition and integration costs are expensed as incurred and included as other items in the consolidated statements of income.

 

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Table of Contents

VIDEOTRON LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (continued)

Years ended December 31, 2015, 2014 and 2013

(tabular amounts in thousands of Canadian dollars, except for option data)

 

 

1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (continued)

 

  (d) Business combinations (continued)

Non-controlling interests in an entity acquired are presented in the consolidated balance sheets within equity, separately from the equity attributable to the shareholder and are initially measured at fair value.

 

  (e) Foreign currency translation

Foreign currency transactions are translated to the functional currency by applying the exchange rate prevailing at the date of the transactions. Translation gains and losses on assets and liabilities denominated in a foreign currency are included in financial expenses, or in gain or loss on valuation and translation of financial instruments, unless hedge accounting is used.

 

  (f) Revenue recognition

The Corporation recognizes operating revenues when the following criteria are met:

 

   

the amount of revenue can be measured reliably;

 

   

the receipt of economic benefits associated with the transaction is probable;

 

   

the costs incurred or to be incurred in respect of the transaction can be measured reliably;

 

   

the stage of completion can be measured reliably where services have been rendered; and

 

   

significant risks and rewards of ownership, including effective control, have been transferred to the buyer where goods have been sold.

The portion of revenue that is unearned is recorded under “Deferred revenue” when customers are invoiced.

The Corporation provides services under arrangements with multiple deliverables, for which there are two separate accounting units: one for subscriber services (cable television, Internet access, cable or mobile telephony and over-the-top video, including connection costs and rental of equipment); the other for equipment sales to subscribers. Components of multiple deliverable arrangements are separately accounted for, provided the delivered elements have stand-alone value to the customer and the fair value of any undelivered elements can be objectively and reliably determined. Arrangement consideration is allocated among the separate accounting units based on their relative fair values, limited to the non-contingent amount.

The Corporation recognizes revenues for each of its main activities as follows:

 

   

Operating revenues from subscriber services such as cable television, Internet access, cable and mobile telephony and over-the-top video are recognized when services are provided. Promotional offers and rebates are accounted for as a reduction in the service revenue to which they relate;

 

   

Revenues from equipment sales to subscribers and their costs are recognized in income when the equipment is delivered. Promotional offers related to equipment, with the exclusion of mobile devices, are accounted for as a reduction in related equipment sales on delivery, while promotional offers related to the sale of mobile devices are accounted for as a reduction in related equipment sales on activation;

 

   

Operating revenues related to service contracts are recognized in income over the life of the specific contracts on a straight-line basis over the period in which the services are provided; and

 

   

Cable connection revenues are deferred and recognized as revenues over the estimated average period that subscribers are expected to remain connected to the network. The incremental and direct costs related to cable connection costs, in an amount not exceeding the revenue, are deferred and recognized as an operating expense over the same period. The excess of those costs over the related revenues is recognized immediately in income.

 

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Table of Contents

VIDEOTRON LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (continued)

Years ended December 31, 2015, 2014 and 2013

(tabular amounts in thousands of Canadian dollars, except for option data)

 

 

1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (continued)

 

  (g) Impairment of assets

For the purposes of assessing impairment, assets are grouped in cash-generating units (“CGUs”), which represent the lowest levels for which there are separately identifiable cash inflows generated by those assets. The Corporation reviews at each balance sheet date whether events or circumstances have occurred to indicate that the carrying amounts of its long-lived assets with finite useful lives may be less than their recoverable amounts. Goodwill, other intangible assets having an indefinite useful life, and intangible assets not yet available for use are tested for impairment each financial year, as well as whenever there is an indication that the carrying amount of the asset, or the CGU to which an asset has been allocated, exceeds its recoverable amount. The recoverable amount is the higher of the fair value less costs of disposal and the value in use of the asset or the CGU. Fair value less costs of disposal represents the amount an entity could obtain at the valuation date from the asset’s disposal in an arm’s length transaction between knowledgeable, willing parties, after deducting the costs of disposal. The value in use represents the present value of the future cash flows expected to be derived from the asset or the CGU.

An impairment loss is recognized in the amount by which the carrying amount of an asset or a CGU exceeds its recoverable amount. When the recoverable amount of a CGU to which goodwill has been allocated is lower than the CGU’s carrying amount, the related goodwill is first impaired. Any excess amount of impairment is recognized and attributed to assets in the CGU, prorated to the carrying amount of each asset in the CGU.

An impairment loss recognized in prior periods for long-lived assets with finite useful lives and intangible assets having an indefinite useful life, other than goodwill, can be reversed through the consolidated statement of income to the extent that the resulting carrying value does not exceed the carrying value that would have been the result if no impairment loss had previously been recognized.

 

  (h) Income taxes

Current income taxes are recognized with respect to amounts expected to be paid or recovered under the tax rates and laws that have been enacted or substantively enacted at the balance sheet date.

Deferred income taxes are accounted for using the liability method. Under this method, deferred income tax assets and liabilities are recognized for the estimated future tax consequences attributable to differences between the carrying amounts of existing assets and liabilities in the consolidated financial statements and their respective tax bases. Deferred income tax assets and liabilities are measured using enacted or substantively enacted tax rates in effect for the year in which those temporary differences are expected to be recovered or settled. The effect of a change in tax rates on deferred income tax assets and liabilities is recognized in income in the period that includes the substantive enactment date. A deferred tax asset is recognized initially when it is probable that future taxable income will be sufficient to use the related tax benefits and may be subsequently reduced, if necessary, to an amount that is more likely than not to be realized. A deferred tax expense or benefit is recognized in other comprehensive income or otherwise directly in equity to the extent that it relates to items that are recognized in other comprehensive income or directly in equity in the same or a different period.

In the course of the Corporation’s operations, there are a number of uncertain tax positions due to the complexity of certain transactions and due to the fact that related tax interpretations and legislation are continually changing. When a tax position is uncertain, the Corporation recognizes an income tax benefit or reduces an income tax liability only when it is probable that the tax benefit will be realized in the future or that the income tax liability is no longer probable.

 

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Table of Contents

VIDEOTRON LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (continued)

Years ended December 31, 2015, 2014 and 2013

(tabular amounts in thousands of Canadian dollars, except for option data)

 

 

1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (continued)

 

  (i) Leases

Assets under leasing agreements are classified at the inception of the lease as (i) finance leases whenever the terms of the lease transfer substantially all the risks and rewards of ownership of the asset to the lessee, or as (ii) operating leases for all other leases.

Operating lease rentals are recognized in the consolidated statement of income on a straight-line basis over the period of the lease. Any lessee incentives are deferred and then recognized evenly over the lease term.

 

  (j) Financial instruments

Classification, recognition and measurement

Financial instruments are classified as held-for-trading, available-for-sale, loans and receivables, or as other financial liabilities, and measurement in subsequent periods depends on their classification. The Corporation has classified its financial instruments (except derivative financial instruments) as follows:

 

Held-for-trading

  

Loans and receivables

  

Available-for-sale

  

Other liabilities

•    Cash and cash equivalents

 

•    Bank indebtedness

  

•    Accounts receivable

 

•    Amounts receivable from affiliated corporations

 

•    Investments

  

•    Other portfolio investments included in “Other assets”

  

•    Accounts payable and accrued charges

 

•    Amounts payable to affiliated corporations

 

•    Provisions

 

•    Long-term debt

 

•    Subordinated loan from parent corporation

 

•    Other long-term financial liabilities included in “Other liabilities”

Financial instruments held-for-trading are measured at fair value with changes recognized in income as a gain or loss on valuation and translation of financial instruments. Available-for-sale portfolio investments are measured at fair value or at cost in the case of equity investments that do not have a quoted market price in an active market and where fair value is insufficiently reliable, and changes in fair value are recorded in other comprehensive income. Financial assets classified as loans and receivables and financial liabilities classified as Other liabilities are initially measured at fair value and subsequently measured at amortized cost, using the effective interest rate method of amortization.

Derivative financial instruments and hedge accounting

The Corporation uses various derivative financial instruments to manage its exposure to fluctuations in foreign currency exchange rates and interest rates. The Corporation does not hold or use any derivative financial instruments for speculative purposes. Under hedge accounting, the Corporation documents all hedging relationships between hedging items and hedged items, as well as its strategy for using hedges and its risk-management objective. It also designates its derivative financial instruments as either fair value hedges or cash flow hedges when they qualify for hedge accounting. The Corporation assesses the effectiveness of derivative financial instruments when the hedge is put in place and on an ongoing basis.

 

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Table of Contents

VIDEOTRON LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (continued)

Years ended December 31, 2015, 2014 and 2013

(tabular amounts in thousands of Canadian dollars, except for option data)

 

 

1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (continued)

 

  (j) Financial instruments (continued)

 

The Corporation generally enters into the following types of derivative financial instruments:

 

   

The Corporation uses foreign exchange forward contracts to hedge foreign currency rate exposure on anticipated equipment or inventory purchases in a foreign currency. The Corporation also uses offsetting foreign exchange forward contracts in combination with cross-currency interest rate swaps to hedge foreign currency rate exposure on interest and principal payments on foreign currency denominated debt. These foreign exchange forward contracts are designated as cash flow hedges.

 

   

The Corporation uses cross-currency interest rate swaps to hedge (i) foreign currency rate exposure on interest and principal payments on foreign currency denominated debt and/or (ii) fair value exposure on certain debt resulting from changes in interest rates. The cross-currency interest rate swaps that set all future interest and principal payments on U.S.-dollar-denominated debt in fixed CAN dollars, in addition to converting an interest rate from a floating rate to a floating rate or from a fixed rate to a fixed rate, are designated as cash flow hedges. The cross-currency interest rate swaps are designated as fair value hedges when they set all future interest and principal payments on U.S.-dollar-denominated debt in fixed CAN dollars, in addition to converting the interest rate from a fixed rate to a floating rate.

Under hedge accounting, the Corporation applies the following accounting policies:

 

   

For derivative financial instruments designated as fair value hedges, changes in the fair value of the hedging derivative recorded in income are substantially offset by changes in the fair value of the hedged item to the extent that the hedging relationship is effective. When a fair value hedge is discontinued, the carrying value of the hedged item is no longer adjusted and the cumulative fair value adjustments to the carrying value of the hedged item are amortized to income over the remaining term of the original hedging relationship.

 

   

For derivative financial instruments designated as cash flow hedges, the effective portion of a hedge is reported in other comprehensive income until it is recognized in income during the same period in which the hedged item affects income, while the ineffective portion is immediately recognized in income. When a cash flow hedge is discontinued, the amounts previously recognized in accumulated other comprehensive income are reclassified to income when the variability in the cash flows of the hedged item affects income.

Any change in the fair value of derivative financial instruments recorded in income is included in gain or loss on valuation and translation of financial instruments. Interest expense on hedged long-term debt is reported at the hedged interest and foreign currency rates.

Derivative financial instruments that do not qualify for hedge accounting, including derivatives that are embedded in financial or non-financial contracts that are not closely related to the host contracts, such as early settlement options on long-term debt, are reported on a fair value basis in the consolidated balance sheets. Any change in the fair value of these derivative financial instruments is recorded in the consolidated statements of income as a gain or loss on valuation and translation of financial instruments.

Early settlement options are accounted for separately from the debt when the corresponding option exercise price is not approximately equal to the amortized cost of the debt.

 

  (k) Financing fees

Financing fees related to long-term debt are capitalized in reduction of long-term debt and amortized using the effective interest rate method.

 

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Table of Contents

VIDEOTRON LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (continued)

Years ended December 31, 2015, 2014 and 2013

(tabular amounts in thousands of Canadian dollars, except for option data)

 

 

1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (continued)

 

  (l) Tax credits and government assistance

The Corporation receives tax credits mainly related to its research and development activities. Government financial assistance is accounted for as revenue or as a reduction in related costs, whether capitalized and amortized or expensed, in the year the costs are incurred and when management has reasonable assurance that the conditions of the government programs are met.

 

  (m) Cash and cash equivalents

Cash and cash equivalents include highly liquid investments purchased three months or less from maturity and are recorded at fair value.

 

  (n) Trade receivables

Trade receivables are stated at their nominal value, less an allowance for doubtful accounts. The Corporation establishes an allowance for doubtful accounts based on the specific credit risk of its customers and historical trends. Individual accounts receivables are written off when management deems them not collectible.

 

  (o) Inventories

Inventories are valued at the lower of cost, determined by the weighted-average cost method, and net realizable value. Net realizable value represents the estimated selling price in the ordinary course of business, less the estimated costs of completion and the estimated costs necessary to make the sale. When the circumstances that previously caused inventories to be written down below cost no longer exist, the amount of the write-down is reversed.

 

  (p) Fixed assets

Fixed assets are stated at cost. Cost represents the acquisition costs, net of government grants and investment tax credits, or construction costs, including preparation, installation and testing costs. In the case of projects to construct cable and mobile networks, the cost includes equipment, direct labour and related overhead costs. Projects under development may also be comprised of advance payments made to suppliers for equipment under construction.

Borrowing costs are also included in the cost of fixed assets during the development phase. Expenditures such as maintenance and repairs are expensed as incurred.

Depreciation is calculated on a straight-line basis over the following estimated useful lives:

 

Assets

   Estimated useful life  

Buildings and their components

     25 to 40 years   

Furniture and equipment

     3 to 7 years   

Receiving, distribution and telecommunication networks

     3 to 20 years   

Customer equipment

     3 to 5 years   

Depreciation methods, residual values, and the useful lives of significant fixed assets are reviewed at least once a year. Any change is accounted for prospectively as a change in accounting estimate.

Leasehold improvements are depreciated over the shorter of the term of the lease and their estimated useful life.

 

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Table of Contents

VIDEOTRON LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (continued)

Years ended December 31, 2015, 2014 and 2013

(tabular amounts in thousands of Canadian dollars, except for option data)

 

 

1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (continued)

 

  (p) Fixed assets (continued)

 

The Corporation does not record any decommissioning obligations in connection with its cable distribution networks. The Corporation expects to renew all of its agreements with utility companies to access their support structures in the future, making the retirement date so far into the future that the present value of the restoration costs is insignificant for those assets. A decommissioning obligation is however recorded for the rental of sites related to the mobile network.

The Corporation is engaged in an agreement to operate a shared Long-Term Evolution mobile network in the Province of Québec and in the Ottawa region.

 

  (q) Goodwill and intangible assets

Goodwill

Goodwill initially arising from a business acquisition is measured and recognized as the excess of the fair value of the consideration paid over the fair value of the recognized identifiable assets acquired and liabilities assumed. When the Corporation acquires less than 100% of the equity interests in the business acquired at the acquisition date, goodwill attributable to the non-controlling interests is also recognized at fair value.

Goodwill is allocated as at the date of a business acquisition to a CGU for purposes of impairment testing (note 1(g)). The allocation is made to the CGU or group of CGUs expected to benefit from the synergies of the business acquisition.

Intangible assets

Spectrum licences are recorded at cost. Spectrum licences have an indefinite useful life and are not amortized based on the following facts: (i) the Corporation intends to renew the spectrum licences and believes that they are likely to be renewed by Innovation, Science and Economic Development Canada, (ii) the Corporation has the financial and operational ability to renew these spectrum licences, (iii) currently, the competitive, legal and regulatory landscape does not limit the useful lives of the spectrum licences, and (iv) the Corporation foresees no limit to the period during which these licences can be expected to generate cash flows in the future (note 1 (b)).

Software is recorded at cost. In particular, internally generated intangible assets are mainly comprised of internal costs in connection with the development of software to be used internally or to provide services to customers. These costs are capitalized when the development stage of the software application begins and costs incurred prior to that stage are recognized as expenses.

Customer relationships acquired through a business acquisition are recorded at fair value at the date of acquisition.

Borrowing costs directly attributable to the acquisition, development or production of an intangible asset are also included as part of the cost of that asset during the development phase.

Intangible assets with finite useful lives are amortized over their useful lives using the straight-line method over the following periods:

 

Assets

   Estimated useful life  

Software, licences and other intangible assets

     3 to 7 years   

Customer relationships

     5 years   

Amortization methods, residual values, and the useful lives of significant intangible assets are reviewed at least once a year. Any change is accounted for prospectively as a change in accounting estimate.

 

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Table of Contents

VIDEOTRON LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (continued)

Years ended December 31, 2015, 2014 and 2013

(tabular amounts in thousands of Canadian dollars, except for option data)

 

 

1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (continued)

 

  (r) Provisions

Provisions are recognized when (i) the Corporation has a present legal or constructive obligation as a result of a past event and it is probable that an outflow of economic benefits will be required to settle the obligation, and when (ii) the amount of the obligation can be reliably estimated. Restructuring costs, comprised primarily of termination benefits, are recognized when a detailed plan for the restructuring exists and a valid expectation has been raised in those affected, that the plan will be carried out.

Provisions are reviewed at each balance sheet date and changes in estimates are reflected in the consolidated statement of income in the reporting period in which changes occur.

 

  (s) Stock-based compensation

Stock-based awards to employees that call for settlement in cash or other assets at the option of the employee are accounted for at fair value and classified as a liability. The compensation cost is recognized in expenses over the vesting period. Changes in the fair value of stock-based awards between the grant date and the measurement date result in a change in the liability and compensation cost.

Estimates of the fair value of stock option awards are determined by applying an option pricing model, taking into account the terms and conditions of the grant. Key assumptions are described in note 21.

 

  (t) Pension plans and postretirement benefits

The Corporation offers defined contribution pension plans and defined benefit pension plans to some of its employees.

 

  (i) Defined contribution pension plans

Under its defined contribution pension plans, the Corporation pays fixed contributions to participating employees’ pension plans and has no legal or constructive obligation to pay any further amounts. Obligations for contributions to defined contribution pension plans are recognized as employee benefits in the consolidated statements of income when the contributions become due.

 

  (ii) Defined benefit pension plans and postretirement plans

Defined benefit pension plan costs are determined using actuarial methods and are accounted for using the projected unit credit method, which incorporates management’s best estimates of future salary levels, other cost escalations, retirement ages of employees, and other actuarial factors. Defined benefit pension costs recognized in the consolidated statements of income as employee costs, mainly include the following:

 

   

service costs provided in exchange for employee services rendered during the period;

 

   

prior service costs recognized at the earlier of (a) when the employee benefit plan is amended or (b) when restructuring costs are recognized;

 

   

curtailment or settlement gain or loss.

Interest on net defined benefit liability or asset recognized in the consolidated statements of income, as financial expenses, is determined by multiplying the net defined benefit liability or asset by the discount rate used to determine the defined benefit obligation.

 

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Table of Contents

VIDEOTRON LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (continued)

Years ended December 31, 2015, 2014 and 2013

(tabular amounts in thousands of Canadian dollars, except for option data)

 

 

1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (continued)

 

  (t) Pension plans and postretirement benefits (continued)

 

  (ii) Defined benefit pension plans and postretirement plans (continued)

Re-measurements of the net defined benefit liability or asset are recognized immediately in other comprehensive loss and in accumulated other comprehensive loss. Re-measurements are comprised of the following:

 

   

actuarial gains and losses arising from changes in financial and demographic actuarial assumptions used to determine the defined benefit obligation or from experience adjustments on liabilities;

 

   

the difference between actual return on plan assets and interest income on plan assets anticipated as part of the interest on net defined benefit liability or asset calculation;

 

   

changes in the net benefit asset limit or in the minimum funding liability.

Recognition of a net benefit asset is limited under certain circumstances to the amount recoverable, which is primarily based on the present value of future contributions to the plan, to the extent that the Corporation can unilaterally reduce those future contributions. In addition, an adjustment to the net benefit asset or the net benefit liability can be recorded to reflect a minimum funding liability in a certain number of the Corporation’s pension plans.

The Corporation also offers discounts on telecommunication services and health and life insurance plans to some of its retired employees. The cost of postretirement benefits is determined using an accounting methodology similar to that for defined benefit pension plans. The benefits related to these plans are funded by the Corporation as they become due.

 

  (u) Use of estimates and judgments

The preparation of consolidated financial statements in accordance with IFRS requires management to make estimates, assumptions and judgments that affect the reported amounts of assets and liabilities, related amounts of revenues and expenses, and disclosure of contingent assets and liabilities. Although these estimates are based on management’s best judgment and information available at the time of the assessment date, actual results could differ from those estimates.

The following significant areas represent management’s most difficult, subjective or complex estimates:

 

  (i) Recoverable amount of an asset or a CGU

When an impairment test is performed on an asset or a CGU, management estimates the recoverable amount of the asset or CGU based on its fair value less costs of disposal or its value in use. These estimates are based on valuation models requiring the use of a number of assumptions such as forecasts of future cash flows, pre-tax discount rate (WACC) and perpetual growth rate. These assumptions have a significant impact on the results of impairment tests and on the impairment charge, as the case may be, recorded in the consolidated statements of income. A description of key assumptions used in the goodwill impairment tests and a sensitivity analysis of recoverable amounts are presented in note 14.

 

  (ii) Fair value of derivative financial instruments, including embedded derivatives

Derivative financial instruments must be accounted for at their fair value, which is estimated using valuation models based on a number of assumptions such as future cash flows, period-end swap rates, foreign exchange rates, and credit default premium. Also, the fair value of embedded derivatives related to early settlement options on debt is determined with option pricing models using market inputs, including volatility, discount factors and the underlying instrument’s adjusted implicit interest rate and credit premium. The assumptions used in the valuation models have a significant impact on the gain or loss on valuation and translation of financial instruments recorded in the consolidated statements of income, the gain or loss on valuation of financial instruments recorded in the consolidated statements of comprehensive income, and the carrying value of derivative financial instruments in the consolidated balance sheets. A description of valuation models used and sensitivity analysis on key assumptions are presented in note 25.

 

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Table of Contents

VIDEOTRON LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (continued)

Years ended December 31, 2015, 2014 and 2013

(tabular amounts in thousands of Canadian dollars, except for option data)

 

 

1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (continued)

 

  (u) Use of estimates and judgments (continued)

 

  (iii) Costs and obligations related to pension and postretirement benefit plans

Estimates of costs and obligations related to pension and postretirement benefit obligations are based on a number of assumptions, such as the discount rate, the rate of increase in compensation, the retirement age of employees, health care costs, and other actuarial factors. Certain of these assumptions may have a significant impact on employee costs and financial expenses recorded in the consolidated statements of income, the re-measurement gain or loss on defined benefit plans recorded in the consolidated statements of comprehensive income, and on the carrying value of other assets or other liabilities in the consolidated balance sheets. Key assumptions and a sensitivity analysis on the discount rate are presented in note 27.

 

  (iv) Provisions

The recognition of provisions requires management to estimate expenditures required to settle a present obligation or to transfer it to a third party at the date of assessment. More specifically, an assessment of the probable outcomes of legal proceedings or other contingencies is also required. A description of the main provisions, including management expectations on the potential effect on the consolidated financial statements of the possible outcomes of legal disputes, is presented in note 17.

The following areas represent management’s most significant judgments, apart from those involving estimates:

 

  (i) Useful life periods for the depreciation and amortization of assets with finite useful lives

For each class of assets with finite useful lives, management has to determine over which period the Corporation will consume the assets’ future economic benefits. The determination of a useful life period involves judgment and has an impact on the depreciation and amortization charge recorded in the consolidated statements of income.

 

  (ii) Indefinite useful life of spectrum licences

Management has concluded that spectrum licences have an indefinite useful life. This conclusion was based on an analysis of factors, such as the Corporation’s financial ability to renew the spectrum licences, the competitive, legal and regulatory landscape, and the future expectation regarding the use of the spectrum licences. Therefore, the determination that spectrum licences have an indefinite useful life involves judgment, which could have an impact on the amortization charge recorded in the consolidated statements of income if management changed its conclusion in the future as it did in 2015 (note 1 (b)).

 

  (iii) CGU’s determination for the purpose of impairment tests

The determination of CGUs requires judgment when determining the lowest level for which there are separately identifiable cash inflows generated by the group of assets. In identifying assets to group in CGUs, the Corporation considers, among other factors, offering bundled services, sharing telecommunication network infrastructure, similarity on exposure to market risk, and materiality. The determination of CGUs could affect the results of impairment tests and, as the case may be, the impairment charge recorded in the consolidated statements of income.

 

  (iv) Determination if early settlement options are not closely related to their debt contract

Early settlement options are not considered closely related to their debt contract when the corresponding option exercise price is not approximately equal to the amortized cost of the debt. Judgment is therefore required to determine if an option exercise price is not approximately equal to the amortized cost of the debt. This determination may have a significant impact on the amount of gains or losses on valuation and translation of financial instruments recorded in the consolidated statements of income.

 

F-20


Table of Contents

VIDEOTRON LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (continued)

Years ended December 31, 2015, 2014 and 2013

(tabular amounts in thousands of Canadian dollars, except for option data)

 

 

1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (continued)

 

  (u) Use of estimates and judgments (continued)

 

  (v) Interpretation of laws and regulations

Interpretation of laws and regulation, including tax regulations, requires judgment from management that could have an impact on the recognition of provisions for legal litigation and income taxes in the consolidated financial statements.

 

  (v) Recent accounting pronouncements

The Corporation has not yet completed its assessment of the impact of the adoption of these pronouncements on its consolidated financial statements.

 

  (i) IFRS 9 – Financial Instruments is required to be applied retrospectively for annual periods beginning on or after January 1, 2018, with early adoption permitted.

IFRS 9 simplifies the measurement and classification of financial assets by reducing the number of measurement categories in IAS 39, Financial Instruments: Recognition and Measurement. The new standard also provides for a fair value option in the designation of a non-derivative financial liability and its related classification and measurement, as well as for a new hedge accounting model more closely aligned with risk-management activities undertaken by entities.

 

  (ii) IFRS 15 – Revenue from Contracts with Customers is required to be applied retrospectively for annual periods beginning on or after January 1, 2018, with early adoption permitted.

IFRS 15 specifies how and when an entity will recognize revenue as well as requiring such entities to provide users of financial statements with more informative disclosures. The standard provides a single, principles-based, five-step model to be applied to all contracts with customers.

 

  (iii) IFRS 16 – Leases is required to be applied retrospectively for annual periods beginning on or after January 1, 2019, with early adoption permitted provided that IFRS 15 has been applied or is applied at the same time as IFRS 16.

IFRS 16 sets out new principles for the recognition, measurement, presentation and disclosure of leases for both parties to a contract. The standard provides lessees with a single accounting model for all leases, with certain exemptions. In particular, lessees will be required to report most leases on their balance sheets by recognizing right-of-use assets and related financial liabilities.

 

F-21


Table of Contents

VIDEOTRON LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (continued)

Years ended December 31, 2015, 2014 and 2013

(tabular amounts in thousands of Canadian dollars, except for option data)

 

 

2. EMPLOYEE COSTS AND PURCHASE OF GOODS AND SERVICES

The main components are as follows:

 

     2015      2014      2013  

Employee costs

   $ 527,549       $ 495,906       $ 488,901   

Less: employee costs capitalized to fixed assets and to intangible assets

     (171,046      (153,507      (141,804
  

 

 

    

 

 

    

 

 

 
     356,503         342,399         347,097   

Purchase of goods and services

        

Royalties and rights

     435,740         413,922         426,455   

Cost of retail products

     243,224         193,421         144,891   

Subcontracting costs

     117,973         115,778         126,774   

Marketing and distribution expenses

     63,062         61,097         57,101   

Other

     399,180         351,837         324,698   
  

 

 

    

 

 

    

 

 

 
     1,259,179         1,136,055         1,079,919   
  

 

 

    

 

 

    

 

 

 
   $ 1,615,682       $ 1,478,454       $ 1,427,016   
  

 

 

    

 

 

    

 

 

 

 

3. FINANCIAL EXPENSES

 

     2015      2014      2013  

Third parties :

        

Interest on long-term debt

   $ 155,036       $ 169,274       $ 171,803   

Amortization of financing costs and long-term debt discount

     4,008         4,650         5,263   

Loss on foreign currency translation on short-term monetary items

     6,593         3,568         2,333   

Other

     1,948         (3,751      (2,755
  

 

 

    

 

 

    

 

 

 
     167,585         173,741         176,644   

Affiliated corporations and parent corporation :

        

Interest expense (net of interest income)

     213,189         218,587         254,580   

Dividend income (net of dividend expense)

     (216,257      (224,194      (260,909
  

 

 

    

 

 

    

 

 

 
     (3,068      (5,607      (6,329

Interest on net defined benefit liability

     2,912         1,043         3,830   
  

 

 

    

 

 

    

 

 

 
   $ 167,429       $ 169,177       $ 174,145   
  

 

 

    

 

 

    

 

 

 

 

F-22


Table of Contents

VIDEOTRON LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (continued)

Years ended December 31, 2015, 2014 and 2013

(tabular amounts in thousands of Canadian dollars, except for option data)

 

 

4. LOSS ON VALUATION AND TRANSLATION OF FINANCIAL INSTRUMENTS

 

     2015      2014      2013  

Loss on embedded derivatives related to long-term debt

   $ 3,583       $ 4,913       $ 97,423   

(Gain) loss on reversal of embedded derivatives on debt redemption

     (336      (611      67,002   

Loss on derivative financial instruments for which hedge accounting is not used

     —           3,078         448   

Loss (gain) on the ineffective portion of cash flow hedges

     737         (737      (1,148

Gain on the ineffective portion of fair value hedges

     (3,466      (3,213      —     
  

 

 

    

 

 

    

 

 

 
   $ 518       $ 3,430       $ 163,725   
  

 

 

    

 

 

    

 

 

 

 

5. LOSS ON DEBT REFINANCING

2015

 

   

On April 10, 2015, the Corporation redeemed all of its issued and outstanding 6.375% Senior Notes due December 15, 2015, in aggregate principal amount of US$175.0 million and the related hedging contracts were unwound for a total cash consideration of $204.5 million.

 

   

On July 16, 2015, the Corporation redeemed all of its issued and outstanding 9.125% Senior Notes due April 15, 2018, in aggregate principal amount of US$75.0 million and the related hedging contracts were unwound for a total cash consideration of $75.9 million.

 

   

On July 16, 2015, the Corporation redeemed all of its issued and outstanding 7.125% Senior Notes due January 15, 2020, in aggregate principal amount of $300.0 million for a total cash consideration of $310.7 million.

These transactions resulted in a total loss of $12.2 million in 2015, net of a gain of $3.9 million previously reported in other comprehensive income.

2014

In April 2014, the Corporation redeemed US$260.0 million in aggregate principal amount of its issued and outstanding 9.125% Senior Notes due April 2018 for a total cash consideration of $295.4 million. This transaction resulted in a total loss of $21.4 million (before income taxes), net of a loss of $1.6 million previously reported in other comprehensive income.

2013

In July 2013, the Corporation redeemed US$380.0 million in aggregate principal amount of its issued and outstanding 9.125% Senior Notes due April 2018 and settled its related hedging contracts for a total cash consideration of $399.6 million. This transaction resulted in a total loss of $18.9 million (before income taxes), net of a gain of $6.5 million previously reported in other comprehensive income.

 

F-23


Table of Contents

VIDEOTRON LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (continued)

Years ended December 31, 2015, 2014 and 2013

(tabular amounts in thousands of Canadian dollars, except for option data)

 

 

6. (GAIN) LOSS ON LITIGATION, RESTRUCTURING OF OPERATIONS AND OTHER ITEMS

 

     2015      2014      2013  

(Gain) loss on litigation

   $ (137,396    $ 34,323       $ —     

Restructuring of operations

     6,181         1,725         1,917   

Other

     1,478         3,397         (1,233
  

 

 

    

 

 

    

 

 

 
   $ (129,737    $ 39,445       $ 684   
  

 

 

    

 

 

    

 

 

 

(Gain) loss on litigation

On March 6, 2015, the Québec Court of Appeal ruled in favour of the Corporation and TVA Group Inc., an affiliated corporation, and ordered Bell ExpressVu Limited Partnership (“Bell ExpressVu”), a subsidiary of Bell Canada, to pay to the Corporation $135.3 million, including interest, for negligence in failing to implement an appropriate security system to prevent piracy of the signals broadcast by its satellite television service between 1999 and 2005, thereby harming its competitors and broadcasters. On October 15, 2015, the Supreme Court of Canada rejected Bell ExpressVu’s application for leave to appeal the judgment. The related gain of $138.4 million was recorded in 2015.

Also, in 2014, a charge of $34.3 million, including interest, was accounted for as a result of an unfavorable judgment against the Corporation in a legal action. The Corporation is currently appealing this judgment. $1.0 million in interest relating to this litigation was recorded in 2015.

Restructuring of operations

In 2015, the Corporation recorded a charge for restructuring costs of $6.2 million ($1.7 million in 2014 and $1.9 million in 2013), mainly related to the migration of its subscribers from analog to digital television services.

 

7. INCOME TAXES

The following table reconciles income taxes at the Corporation’s domestic statutory tax rate of 26.9% in 2015, 2014 and 2013, and income taxes in the consolidated statements of income:

 

     2015      2014      2013  

Income taxes at domestic statutory tax rate

   $ 190,067       $ 138,125       $ 98,346   

(Reduction) increase resulting from:

        

Effect of non-deductible charges, non-taxable income and differences between current and future tax rates

     3,060         9,932         (1,856

Change in benefit arising from the recognition of current and prior year tax losses

     2,179         1,661         —     

Effect of tax consolidation transactions with the parent corporation and affiliated corporations

     (58,173      (60,308      (70,185

Other 1

     (16,468      3,873         3,144   
  

 

 

    

 

 

    

 

 

 

Income taxes

   $ 120,665       $ 93,283       $ 29,449   
  

 

 

    

 

 

    

 

 

 

 

  1

In 2015, includes a decrease of $16.1 million in deferred income tax liability resulting from recent developments in tax audit matters, jurisprudence and tax legislation.

 

F-24


Table of Contents

VIDEOTRON LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (continued)

Years ended December 31, 2015, 2014 and 2013

(tabular amounts in thousands of Canadian dollars, except for option data)

 

 

7. INCOME TAXES (continued)

 

The significant items comprising the Corporation’s net deferred income tax liability and their impact on the deferred income tax expense are as follows:

 

     Consolidated
balance sheets
    Consolidated
income statements
 
     2015     2014     2015     2014     2013  

Accounts payable, accrued charges and provisions

   $ 10,290      $ 4,948      $ 5,342      $ 1,132      $ (102

Defined benefit plans

     17,182        13,507        1,085        (1,468     (544

Fixed assets

     (385,191     (382,433     (2,758     (13,085     (20,133

Goodwill and intangible assets

     (99,746     (50,891     (47,477     4,675        5,936   

Benefits from a general partnership

     (67,618     (56,510     (11,108     30,860        14,461   

Long-term debt and derivative financial instruments

     (32,610     2,269        (13,908     (9,034     48,674   

Other

     (3,625     (7,207     2,571        1,476        2,051   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 
   $ (561,318   $ (476,317   $ (66,253   $ 14,556      $ 50,343   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Changes in the net deferred income tax liability are as follows:

 

     2015      2014  

Balance as of beginning of the year

   $ (476,317    $ (492,078

Recognized in income

     (66,253      14,556   

Recognized in other comprehensive income

     (18,381      1,205   

Business acquisition (note 9)

     (367      —     
  

 

 

    

 

 

 

Balance as of the end of the year

   $ (561,318    $ (476,317
  

 

 

    

 

 

 

The Corporation has not recognized a deferred income tax liability for the undistributed earnings of its foreign subsidiary in the current or prior years since the Corporation does not expect to sell or repatriate funds from those investments, in which case the undistributed earnings might become taxable.

There are no income tax consequences attached to the payment of dividends or distributions in 2015, 2014 or 2013 by the Corporation to its shareholder.

 

F-25


Table of Contents

VIDEOTRON LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (continued)

Years ended December 31, 2015, 2014 and 2013

(tabular amounts in thousands of Canadian dollars, except for option data)

 

 

8. DISCONTINUED OPERATIONS

On May 31, 2013, the Corporation sold its specialized Web sites Jobboom and Réseau Contact to its parent corporation, for a total consideration of $65.0 million. This transaction resulted in a gain on sale of $38.0 million. The results and cash flows related to these businesses, as well as the gain of $38.0 million on the sale of Jobboom and Réseau Contact , were reclassified as discontinued operations in the consolidated statements of income and cash flows, as this transaction occurred in connection with the sale of Jobboom and Réseau Contact by the parent corporation to an external party in 2013.

In 2015, the Corporation received an amount of $7.8 million from its parent corporation in connection with this transaction.

 

9. BUSINESS ACQUISITION

On March 11, 2015, the Corporation acquired 4Degrees Colocation Inc. (“4Degrees Colocation”) and its data centre, the largest in Québec City, for a purchase price of $35.5 million in cash. An amount of $0.2 million was received in June 2015 as an adjustment related to working capital items. The acquisition will enable the Corporation to continue to meet its business customers’ growing technological and hosting needs. The assets acquired are mainly comprised of tangible assets of $11.2 million, intangible assets of $5.1 million and goodwill of $19.6 million, which mainly reflects 4 Degrees Colocation’s expertise and expected future growth potential.

The pro forma revenues and net income in 2015 would not have been significantly different than the actual figures if this business acquisition had occurred at the beginning of the year.

The goodwill that was recorded is not deductible for tax purposes.

 

10. INVENTORIES

 

     2015      2014  

Customer equipment

   $ 95,563       $ 62,709   

Network materials

     18,643         16,357   
  

 

 

    

 

 

 
   $ 114,206       $ 79,066   
  

 

 

    

 

 

 

Cost of inventories included in purchase of goods and services amounted to $205.7 million in 2015 ($165.6 million in 2014 and $120.7 million in 2013). Write-downs of inventories totalling $1.5 million were recognized in purchase of goods and services in 2015 ($1.4 million in 2014 and $0.5 million in 2013).

 

F-26


Table of Contents

VIDEOTRON LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (continued)

Years ended December 31, 2015, 2014 and 2013

(tabular amounts in thousands of Canadian dollars, except for option data)

 

 

11. INVESTMENTS AND SUBORDINATED LOAN FROM PARENT CORPORATION

 

     2015      2014  

Subordinated loan – Quebecor Media Inc.

   $ 2,090,000       $ 1,080,000   
  

 

 

    

 

 

 

On September 20, 2013, the Corporation contracted a subordinated loan of $3.25 billion from Quebecor Media Inc., bearing interest at a rate of 10.75%, payable every six months on June 20 and December 20, and maturing on September 20, 2043. On the same day, the Corporation invested the total proceeds of $3.25 billion into 3,250,000 preferred shares, Series B, of 9101-0835 Québec Inc., a subsidiary of Quebecor Media Inc. These shares carry the right to receive an annual dividend of 10.85%, payable semi-annually.

On December 27, 2013, 9101-0835 Québec Inc. redeemed 2,600,000 preferred shares, Series B, for a total cash consideration of $2.6 billion, and settled cumulative unpaid dividends of $5.4 million. On the same day, the Corporation used the total proceeds of $2.6 billion to repay part of its subordinated loan contracted from Quebecor Media Inc.

On October 28, 2014, 9101-0835 Québec Inc. redeemed 1,200,000 preferred shares, Series B, for a total cash consideration of $1.2 billion, and settled cumulative unpaid dividends of $46.4 million. On the same day, the Corporation used the total proceeds of $1.2 billion to repay part of its subordinated loan contracted from Quebecor Media Inc.

On February 5, 2015, the Corporation contracted a subordinated loan of $1.01 billion from Quebecor Media Inc., bearing interest at a rate of 10.75%, payable every six months on June 20 and December 20, and maturing on February 5, 2045. On the same day, the Corporation invested the total proceeds of $1.01 billion into 1,010,000 preferred shares, Series B, of 9101-0835 Québec Inc. These shares carry the right to receive an annual dividend of 10.85%, payable semi-annually.

The above transactions were carried out for tax consolidation purposes of Quebecor Media Inc. and its subsidiaries.

 

F-27


Table of Contents

VIDEOTRON LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (continued)

Years ended December 31, 2015, 2014 and 2013

(tabular amounts in thousands of Canadian dollars, except for option data)

 

 

12. FIXED ASSETS

For the years ended December 31, 2015 and 2014, changes in the net carrying amount of fixed assets are as follows:

 

     Land and
buildings
    Furniture and
equipment
    Receiving and
distribution
networks
    Customer
equipment
    Projects
under
development
    Total  

Cost :

            

Balance as of December 31, 2013

   $ 168,225      $ 492,478      $ 4,776,058      $ 495,031      $ 34,984      $ 5,966,776   

Additions

     16,609        47,190        289,055        111,622        141,564        606,040   

Net change in additions financed with accounts payable

     —          (24     (1,226     1,906        1,004        1,660   

Retirement, disposals and other

     (149     (45,178     (80,784     (15,572     (3,397     (145,080

Reclassification

     —          28,487        119,131        —          (147,618     —     
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Balance as of December 31, 2014

     184,685        522,953        5,102,234        592,987        26,537        6,429,396   

Additions

     20,226        45,650        295,014        124,607        144,579        630,076   

Business acquisition (note 9)

     9,617        1,564        —          —          —          11,181   

Net change in additions financed with accounts payable

     —          3        (404     2,878        (22,838     (20,361

Retirement, disposals and other

     (280     (5,009     (79,917     (26,112     (785     (112,103

Reclassification

     —          5,105        97,974        —          (103,079     —     
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Balance as of December 31, 2015

   $ 214,248      $ 570,266      $ 5,414,901      $ 694,360      $ 44,414      $ 6,938,189   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

 

F-28


Table of Contents

VIDEOTRON LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (continued)

Years ended December 31, 2015, 2014 and 2013

(tabular amounts in thousands of Canadian dollars, except for option data)

 

 

12. FIXED ASSETS (continued)

 

 

     Land and
buildings
    Furniture and
equipment
    Receiving and
distribution
networks
    Customer
equipment
    Projects
under
development
     Total  

Accumulated depreciation :

             

Balance as of December 31, 2013

   $ (50,642   $ (259,968   $ (2,518,579   $ (245,469   $ —         $ (3,074,658

Depreciation

     (5,718     (59,298     (319,970     (105,515     —           (490,501

Retirement and disposals

     149        44,635        79,911        11,884        —           136,579   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

    

 

 

 

Balance as of December 31, 2014

     (56,211     (274,631     (2,758,638     (339,100     —           (3,428,580

Depreciation

     (4,141     (65,519     (347,300     (128,652     —           (545,612

Retirement and disposals

     260        3,827        90,025        22,578        —           116,690   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

    

 

 

 

Balance as of December 31, 2015

   $ (60,092   $ (336,323   $ (3,015,913   $ (445,174   $ —         $ (3,857,502
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

    

 

 

 

Net carrying amount :

             

As of December 31, 2014

     128,474        248,322        2,343,596        253,887        26,537         3,000,816   

As of December 31, 2015

   $ 154,156      $ 233,943      $ 2,398,988      $ 249,186      $ 44,414       $ 3,080,687   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

    

 

 

 

 

F-29


Table of Contents

VIDEOTRON LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (continued)

Years ended December 31, 2015, 2014 and 2013

(tabular amounts in thousands of Canadian dollars, except for option data)

 

 

13. INTANGIBLE ASSETS

For the years ended December 31, 2015 and 2014, changes in the net carrying amount of intangible assets are as follows:

 

     Spectrum
licences 1,2,3
     Software,
licences
and other
intangible
assets
     Projects
under
development
     Total  

Cost :

           

Balance as of December 31, 2013

   $ 570,513       $ 468,756       $ 9,872       $ 1,049,141   

Additions

     217,364         64,439         22,745         304,548   

Net change in additions financed with accounts payable

     —           1,065         (1,338      (273

Retirements and other

     —           (12,936      —           (12,936

Reclassification

     —           28,284         (28,284      —     
  

 

 

    

 

 

    

 

 

    

 

 

 

Balance as of December 31, 2014

     787,877         549,608         2,995         1,340,480   

Additions

     219,033         60,005         33,024         312,062   

Business acquisitions (note 9)

     —           5,074         —           5,074   

Net change in additions financed with accounts payable

     —           16,339         (7,729      8,610   

Retirements and other

     —           (6,908      —           (6,908

Reclassification and other items

     —           7,389         (7,389      —     
  

 

 

    

 

 

    

 

 

    

 

 

 

Balance as of December 31, 2015

   $ 1,006,910       $ 631,507       $ 20,901       $ 1,659,318   
  

 

 

    

 

 

    

 

 

    

 

 

 

 

1

The Corporation holds an option to sell its unused AWS spectrum licence in the Toronto area to Rogers Communications Partnership for a price of $180.0 million. The spectrum licence was purchased at a cost of $96.4 million in 2008.

2  

In 2014, the Corporation acquired seven 700 MHz spectrum licences, covering the entirety of the provinces of Québec, Ontario (except Northern Ontario), Alberta and British Columbia, for a total price of $233.3 million, for which Videotron made a cash deposit of $15.9 million in 2013 and paid the balance in 2014.

3  

In 2015, the Corporation acquired four AWS-3 spectrum licences, covering the Province of Québec and the Ottawa region, and eighteen 2500 MHz spectrum licences, covering the Province of Québec, the Ottawa region and the cities of Toronto, Vancouver, Calgary and Edmonton, for a total price of $219.0 million.

The cost of internally generated intangible assets, mainly composed of software, was $396.8 million as of December 31, 2015 ($373.3 million as of December 31, 2014). For the year ended December 31, 2015, the Corporation recorded additions of internally generated intangible assets of $25.7 million ($54.8 million in 2014 and $37.2 million in 2013).

 

F-30


Table of Contents

VIDEOTRON LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (continued)

Years ended December 31, 2015, 2014 and 2013

(tabular amounts in thousands of Canadian dollars, except for option data)

 

 

13. INTANGIBLE ASSETS (continued)

 

 

     Spectrum
licences
     Software,
licences
and other
intangible
assets
     Projects
under
development
     Total  

Accumulated amortization :

           

Balance as of December 31, 2013

   $ (178,128    $ (230,983    $ —         $ (409,111

Amortization

     (55,630      (55,250      —           (110,880

Retirements

     —           10,096         —           10,096   
  

 

 

    

 

 

    

 

 

    

 

 

 

Balance as of December 31, 2014

     (233,758      (276,137      —           (509,895

Amortization

     (13,906      (65,848      —           (79,754

Retirements

     —           1,729         —           1,729   
  

 

 

    

 

 

    

 

 

    

 

 

 

Balance as of December 31, 2015

   $ (247,664    $ (340,256    $ —         $ (587,920
  

 

 

    

 

 

    

 

 

    

 

 

 

Net carrying amount :

           

As of December 31, 2014

     554,119         273,471         2,995         830,585   

As of December 31, 2015

   $ 759,246       $ 291,251       $ 20,901       $ 1,071,398   
  

 

 

    

 

 

    

 

 

    

 

 

 

The accumulated amortization of internally generated intangible assets, mainly composed of software, was $214.4 million as of December 31, 2015 ($181.0 million as of December 31, 2014). For the year ended December 31, 2015, the Corporation recorded $33.6 million of amortization ($38.8 million in 2014 and $33.6 million in 2013) for its internally generated intangible assets.

The net carrying value of internally generated intangible assets was $182.4 million as of December 31, 2015 ($192.3 million as of December 31, 2014).

 

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Table of Contents

VIDEOTRON LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (continued)

Years ended December 31, 2015, 2014 and 2013

(tabular amounts in thousands of Canadian dollars, except for option data)

 

 

14. GOODWILL

For the years ended December 31, 2015 and 2014, changes in the net carrying amount of goodwill are as follows:

 

Cost:

  

Balance as of December 31, 2014 and 2013

   $ 462,563   

Business acquisition (note 9)

     19,612   
  

 

 

 

Balance as of December 31, 2015

     482,175   
  

 

 

 

Accumulated amortization :

  

Balance as of December 31, 2015 and 2014

   $ (33,311
  

 

 

 

Net carrying amount :

  

As of December 31, 2014

     429,252   

As of December 31, 2015

   $ 448,864   
  

 

 

 

The net carrying amount of goodwill as of December 31, 2015 and 2014 is allocated to the Telecommunications CGU.

Recoverable amounts

The recoverable amount of the Telecommunications CGU was determined based on the higher of value in use or fair value less costs of disposal with respect to the impairment tests performed. The Corporation uses the discounted cash flow method to estimate the recoverable amount, consisting of future cash flows derived primarily from the most recent budget and three-year strategic plan approved by the Corporation’s management and presented to the Board of Directors. These forecasts considered the CGU’s past operating performance and market share as well as economic trends, along with specific and market industry trends and corporate strategies. In particular, specific assumptions are used for each type of revenue generated by the CGU or for each nature of expenses as well as for future capital expenditures. Such assumptions will consider, among many other factors, subscribers, competitive landscape, evolution of products and services offerings, wireless penetration growth, technology evolution, bargaining agreements, Canadian GDP rates and operating cost structures.

A perpetual growth rate is used for cash flows beyond the three-year strategic plan period. The discount rate used by the Corporation is a pre-tax rate derived from the weighted average cost of capital pertaining to the CGU, which reflects the current market assessment of (i) the time value of money, and (ii) the risk specific to the assets for which the future cash flow estimates have not been risk-adjusted. The perpetual growth rate was determined with regard to the specific markets in which the CGU participates.

 

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VIDEOTRON LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (continued)

Years ended December 31, 2015, 2014 and 2013

(tabular amounts in thousands of Canadian dollars, except for option data)

 

 

14. GOODWILL (continued)

 

The following key assumptions were used to determine recoverable amounts in the most recent impairment tests performed:

 

     2015     2014  

CGU groups

   Pre-tax
discount

rate  (WACC)
    Perpetual
growth

rate
    Pre-tax
discount
rate (WACC)
    Perpetual
growth
rate
 

Telecommunications 1

     9.0     2.5     9.0     2.5

 

  1  

As allowed by IAS 36, Impairment of assets , the recoverable amount calculated in the 2014 annual impairment test was used in the test performed in 2015 for this CGU. Accordingly, pre-tax discount rates and perpetual growth rates are the same in 2015 and 2014. The recoverable amount of this CGU was based on value in use, using the discounted cash flow method.

Sensitivity of recoverable amounts

An incremental increase in the pre-tax discount rate of 11.2% and an incremental decrease in the perpetual growth rate of 12.8% would have been required in the most recently performed test for the recoverable amount to equal the carrying value of the Telecommunications CGU in 2015.

Since the recoverable amount calculated in the 2014 annual impairment test was used in the test performed in 2015, sensitivity tests are the same as those disclosed in 2014.

 

15. OTHER ASSETS

 

     2015      2014  

Deferred connection costs

   $ 18,189       $ 24,340   

Other

     3,267         2,787   
  

 

 

    

 

 

 
   $ 21,456       $ 27,127   
  

 

 

    

 

 

 

 

16. ACCOUNTS PAYABLE AND ACCRUED CHARGES

 

     2015      2014  

Trade and accruals

   $ 304,702       $ 305,026   

Salaries and employee benefits

     79,874         74,968   

Interest payable

     36,561         31,481   

Stock-based compensation

     1,632         1,442   
  

 

 

    

 

 

 
   $ 422,769       $ 412,917   
  

 

 

    

 

 

 

 

F-33


Table of Contents

VIDEOTRON LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (continued)

Years ended December 31, 2015, 2014 and 2013

(tabular amounts in thousands of Canadian dollars, except for option data)

 

 

17. PROVISIONS AND CONTINGENCIES

 

     Contingencies,
legal disputes
and other
 

Balance as of December 31, 2014

   $ 50,390   

Recognized in income

     14,209   

Payments

     (4,083

Other

     10,332   
  

 

 

 

Balance as of December 31, 2015

   $ 70,848   
  

 

 

 

Current portion

   $ 55,564   

Non-current portion 1

     15,284   

 

1  

The non-current portion of provisions and contingencies is included in other liabilities (note 19)

The recognition of provisions, in terms of both timing and amounts, requires the exercise of judgment based on relevant circumstances and events that can be subject to change over time. Provisions are primarily comprised of the following:

Contingencies and legal disputes

There are a number of legal proceedings against the Corporation and its subsidiaries that are pending. In the opinion of the management of the Corporation and its subsidiaries, the outcome of those proceedings is not expected to have a material adverse effect on the Corporation’s results or on its financial position. Management of the Corporation, after taking legal advice, has established provisions for specific claims or actions considering the facts of each case. The Corporation cannot determine when and if any payment will be made related to those provisions.

Other

Other provisions are principally related to decommissioning obligations.

 

F-34


Table of Contents

VIDEOTRON LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (continued)

Years ended December 31, 2015, 2014 and 2013

(tabular amounts in thousands of Canadian dollars, except for option data)

 

 

18. LONG-TERM DEBT

 

     Effective
interest rate
as of
December 31,
2015
    2015      2014  

Bank credit facilities (i)

     2.32     273,515         37,500   

Senior Notes (ii) (note 5)

     (ii     3,012,600         2,913,511   
  

 

 

   

 

 

    

 

 

 

Total long-term debt

       3,286,115         2,951,011   

Change in fair value related to hedged interest rate risk

       11,450         8,168   

Adjustments related to embedded derivatives

       (312      (3,559

Financing fees, net of amortization

       (30,611      (31,080
    

 

 

    

 

 

 
       (19,473      (26,471
    

 

 

    

 

 

 

Less current portion

       (10,714      (213,688
    

 

 

    

 

 

 
     $ 3,255,928       $ 2,710,852   
    

 

 

    

 

 

 

 

(i) The bank credit facilities provide for a $615.0 million secured revolving credit facility that matures in July 2020, a $350.0 million unsecured revolving credit facility that matures in July 2020 and a $75.0 million secured export financing facility providing for a term loan that matures in June 2018. The revolving credit facilities bear interest at Bankers’ acceptance rate, Canadian prime rate or U.S. prime rate, plus a margin, depending on the Corporation’s leverage ratio. Advances under the export financing facility bear interest at Bankers’ acceptance rate plus a margin. The secured bank credit facilities are secured by a first ranking hypothec on the universality of all tangible and intangible assets, current and future, of the Corporation and most of its wholly owned subsidiaries. As of December 31, 2015, the secured bank credit facilities were secured by assets with a carrying value of $7,646.3 million ($6,238.3 million in 2014). The bank credit facilities contain covenants such as maintaining certain financial ratios, limitations on the Corporation’s ability to incur additional indebtedness, pay dividends, or make other distributions. As of December 31, 2015, $246.7 million had been drawn on the secured revolving credit facilities (no amount was drawn in 2014), $26.8 million was outstanding on the export financing facility ($37.5 million in 2014) and no amount was drawn on the unsecured revolving credit facility.

 

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Table of Contents

VIDEOTRON LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (continued)

Years ended December 31, 2015, 2014 and 2013

(tabular amounts in thousands of Canadian dollars, except for option data)

 

 

18. LONG-TERM DEBT (continued)

 

(ii) The Senior Notes are unsecured and contain certain restrictions on the Corporation, including limitations on its ability to incur additional indebtedness, pay dividends or make other distributions. Some Notes are redeemable at the option of the issuer, in whole or in part, at a price based on a make-whole formula during the first five years of the term of the Notes and at a decreasing premium thereafter, while the remaining Notes are redeemable at a price based on a make-whole formula at any time prior to their maturity. The Notes are guaranteed by specific subsidiaries of the Corporation and, on a non-consolidated basis, the Corporation has no independent assets or operations, the guarantees are full and unconditional and joint and several and any non-guarantor subsidiaries are minor. The following table summarizes terms of the outstanding Senior Notes as of December 31, 2015:

 

Principal amount

   Annual
nominal
interest
rate
    Effective
interest rate
(after
discount at
issuance)
    Maturity date      Interest payable
every 6 months on
 

     $ 300,000

     6.875     6.875     July 15, 2021         June and December 15   

US$ 800,000

     5.000     5.000     July 15, 2022         January and July 15   

US$ 600,000 1

     5.375     5.375     June 15, 2024         June and December 15   

     $ 400,000 2

     5.625     5.625     June 15, 2025         April and October 15   

     $ 375,000 3

     5.750     5.750     January 15, 2026         March and September 15   

 

1  

The Notes were issued in April 2014 for net proceeds of $654.5 million, net of financing fees of $7.8 million.

2  

The Notes were issued in June 2013 for net proceeds of $394.8 million, net of financing fees of $5.2 million.

3  

The Notes were issued in September 2015 for net proceeds of $370.1 million, net of financing fees of $4.9 million.

On December 31, 2015, the Corporation and its subsidiaries were in compliance with all debt covenants.

Principal repayments of long-term debt over the coming years are as follows:

 

2016

   $ 10,714   

2017

     10,714   

2018

     5,358   

2019

     —     

2020

     246,729   

2021 and thereafter

     3,012,600   

 

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Table of Contents

VIDEOTRON LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (continued)

Years ended December 31, 2015, 2014 and 2013

(tabular amounts in thousands of Canadian dollars, except for option data)

 

 

19. OTHER LIABILITIES

 

     Note      2015      2014  

Defined benefit plans

     27       $ 68,983       $ 55,886   

Deferred revenue

        18,166         24,458   

Asset retirement obligation

     17         15,284         4,646   

Stock-based compensation 1

     21         1,173         965   

Other

        966         897   
     

 

 

    

 

 

 
      $ 104,572       $ 86,852   
     

 

 

    

 

 

 

 

1  

The current $1.6 million portion of stock-based compensation is included in accounts payable and accrued charges ($1.4 million in 2014) (note 16).

 

20. CAPITAL STOCK

 

  (a) Authorized capital stock

An unlimited number of Common Shares, without par value, voting and participating

An unlimited number of Preferred Shares, Series B, Series C, Series D, Series E, Series F, and Series H, without par value, ranking prior to the Common Shares with regards to payment of dividends and repayment of capital, non-voting, non-participating, a fixed monthly non-cumulative dividend of 1%, retractable and redeemable.

An unlimited number of Preferred Shares, Series G, ranking prior to all other shares with regards to payment of dividends and repayment of capital, non-voting, non-participating carrying the rights and restrictions attached to the class as well as a fixed annual cumulative preferred dividend of 11.25%, retractable and redeemable.

 

  (b) Issued and outstanding capital stock

 

     Common Shares  
     Number      Amount  

Balance as of December 31, 2014

     2,516,829       $ 3,401   

Issuance of capital stock to parent corporation

     170,000,000         170,000   

Reduction in paid-up capital

     —           (41,000
  

 

 

    

 

 

 

Balance as of December 31, 2015

     172,516,829       $ 132,401   
  

 

 

    

 

 

 

On June 23, 2015, the Corporation issued 170,000,000 common shares to its parent corporation for a total cash consideration of $170.0 million.

On July 20, 2015 and July 30, 2015, the Corporation reduced its paid-up capital for a cash consideration of $21.0 million and $20.0 million, respectively.

 

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Table of Contents

VIDEOTRON LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (continued)

Years ended December 31, 2015, 2014 and 2013

(tabular amounts in thousands of Canadian dollars, except for option data)

 

 

21. STOCK-BASED COMPENSATION PLANS

 

  (a) Ultimate parent corporation stock option plan

Under a stock option plan established by the ultimate parent corporation, 13,000,000 Class B Shares of the ultimate parent corporation have been set aside for directors, officers, senior employees, and other key employees of the ultimate parent corporation and its subsidiaries. The exercise price of each option is equal to the weighted average trading price of the parent corporation’s Class B Shares on the Toronto Stock Exchange over the last five trading days immediately preceding the granting of the option. Each option may be exercised during a period not exceeding 10 years from the date granted. Options usually vest as follows: 1/3 after one year, 2/3 after two years, and 100% three years after the original grant. Holders of options under the stock option plan have the choice, when they exercise their options, of acquiring the Class B Shares at the corresponding option exercise price, or receiving a cash payment equivalent to the difference between the market value of the underlying shares and the exercise price of the option. The Board of Directors of the ultimate parent corporation may, at its discretion, affix different vesting periods at the time of each grant.

The following table gives details on changes to outstanding options for the years ended December 31, 2015 and 2014:

 

     2015      2014  
     Options      Weighted
average
exercise
price
     Options      Weighted
average
exercise
price
 

Balance at beginning of year

     50,000       $ 25.49         —         $ —     

Granted

     —           —           50,000         25.49   
  

 

 

    

 

 

    

 

 

    

 

 

 

Balance at end of year

     50,000       $ 25.49         50,000       $ 25.49   
  

 

 

    

 

 

    

 

 

    

 

 

 

During the year ended December 31, 2015, none of the ultimate parent corporation’s stock options were exercised.

The following table gives summary information on outstanding options as of December 31, 2015:

 

     Outstanding options      Vested options  

Exercise price

   Number      Weighted
average
years to
maturity
     Weighted
average
exercise
price
     Number      Weighted
average
exercise
price
 

$25.49

     50,000         8.23       $ 25.49         —         $ —     

 

F-38


Table of Contents

VIDEOTRON LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (continued)

Years ended December 31, 2015, 2014 and 2013

(tabular amounts in thousands of Canadian dollars, except for option data)

 

 

21. STOCK-BASED COMPENSATION PLANS (continued)

 

  (b) Parent corporation stock option plan

Under a stock option plan established by the parent corporation, options have been set aside for officers, senior employees, directors and other key employees of the Corporation. Each option may be exercised within a maximum period of 10 years following the date of grant at an exercise price not lower than, as the case may be, the fair market value of the Common Shares of the parent corporation at the date of grant, as determined by its Board of Directors (if the Common Shares of the parent corporation are not listed on a stock exchange at the time of the grant), or the five-day weighted average market price ending on the day preceding the date of grant of the Common Shares of the parent corporation on the stock exchange(s) where such shares are listed at the time of grant. As long as the Common Shares of the parent corporation are not listed on a recognized stock exchange, optionees may exercise their vested options during one of the following periods: from March 1 to March 30, from June 1 to June 29, from September 1 to September 29, and from December 1 to December 30. Holders of options under the plan have the choice at the time of exercising their options of receiving an amount in cash (equal to the difference between either the five-day weighted average market price ending on the day preceding the date of exercise of the Common Shares of the parent corporation on the stock exchange(s) where such shares are listed at the time of exercise or the fair market value of the Common Shares, as determined by the parent corporation’s Board of Directors, and the exercise price of their vested options) or, subject to certain stated conditions, exercise their options to purchase Common Shares of the parent corporation at the exercise price. Except under specific circumstances, and unless the Human Resources and Compensation Committee decides otherwise, options vest over a five-year period in accordance with one of the following vesting schedules as determined by the Human Resources and Compensation Committee at the time of grant: (i) equally over five years with the first 20% vesting on the first anniversary of the date of the grant; (ii) equally over four years with the first 25% vesting on the second anniversary of the date of grant; and (iii) equally over three years with the first 33 1/3% vesting on the third anniversary of the date of grant.

The following table gives details on changes to outstanding options granted as of December 31, 2015 and 2014:

 

     2015      2014  
     Options     Weighted
average
exercise
price
     Options     Weighted
average
exercise
price
 

Balance at beginning of year

     241,211      $ 56.20         273,061      $ 54.00   

Transferred

     58,750        55.40         —          —     

Granted

     145,000        70.56         14,000        63.50   

Exercised

     (57,150     50.24         (32,850     42.49   

Cancelled

     (1,200     57.64         (13,000     52.63   
  

 

 

   

 

 

    

 

 

   

 

 

 

Balance at end of year

     386,611      $ 62.34         241,211      $ 56.20   
  

 

 

   

 

 

    

 

 

   

 

 

 

Vested options at end of year

     53,758      $ 56.70         24,700      $ 48.85   
  

 

 

   

 

 

    

 

 

   

 

 

 

During the year ended December 31, 2015, 57,150 of the Corporation’s stock options were exercised for a cash consideration of $1.2 million (32,850 stock options for $0.7 million in 2014).

 

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Table of Contents

VIDEOTRON LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (continued)

Years ended December 31, 2015, 2014 and 2013

(tabular amounts in thousands of Canadian dollars, except for option data)

 

 

21. STOCK-BASED COMPENSATION PLANS (continued)

 

  (b) Parent corporation stock-based compensation plan (continued)

 

The following table gives summary information on outstanding options as of December 31, 2015:

 

     Outstanding options      Vested options  

Range of exercise price

   Number      Weighted
average
years to
maturity
     Weighted
average
exercise
price
     Number      Weighted
average
exercise
price
 

$44.45 to $57.64

     227,611         7.31       $ 57.03         50,778       $ 56.33   

$63.50 to $70.56

     159,000         9.14         69.94         2,800         63.50   
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 
     386,611         8.06       $ 62.34         53,578       $ 56.70   
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

 

  (c) Assumptions in estimating the fair value of stock-based awards

The fair value of stock-based awards under the stock option plans of the ultimate parent corporation and parent corporation was estimated using the Black-Scholes option pricing model. The following weighted-average assumptions were used to estimate the fair value of all outstanding stock options under the stock option plans as of December 31, 2015 and 2014:

 

December 31, 2015

   Ultimate
parent
corporation
     Parent
corporation
 

Risk-free interest rate

     0.91%         0.81%   

Distribution yield

     0.42%         1.50%   

Expected volatility

     20.46%         19.19%   

Expected remaining life

     4.7 years         3.8 years   

 

December 31, 2014

   Ultimate
parent
corporation
     Parent
corporation
 

Risk-free interest rate

     1.66%         1.40%   

Distribution yield

     0.31%         1.38%   

Expected volatility

     25.83%         18.95%   

Expected remaining life

     5.7 years         3.7 year   

Except for the parent corporation, the expected volatility is based on the historical volatility of the underlying share price for a period equivalent to the expected remaining life of the options. Since the Common Shares of the parent corporation are not publicly traded on a stock exchange, expected volatility is derived from the implied volatility of the ultimate parent corporation’s stock. The expected remaining life of options granted represents the period of time that options granted are expected to be outstanding. The risk-free rate over the expected remaining life of the option is based on the Government of Canada yield curve in effect at the time of the valuation. Distribution yield is based on the current average yield.

 

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Table of Contents

VIDEOTRON LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (continued)

Years ended December 31, 2015, 2014 and 2013

(tabular amounts in thousands of Canadian dollars, except for option data)

 

 

21. STOCK-BASED COMPENSATION PLANS (continued)

 

  (d) Liability of vested options

As of December 31, 2015, the liability for all vested options was $0.7 million as calculated using the intrinsic value ($0.5 million as of December 31, 2014).

 

  (e) Consolidated compensation charge

For the year ended December 31, 2015, a consolidated charge related to all stock-based compensation plans was recorded in the amount of $1.3 million (charge of $1.3 million in 2014 and $2.7 million in 2013).

 

22. ACCUMULATED OTHER COMPREHENSIVE LOSS

 

     Cash flow
hedges
     Defined
benefit
plans
     Total  

Balance as of December 31, 2012

   $ 16,888       $ (35,914    $ (19,026

Other comprehensive (loss) gain

     (31,641      41,558         9,917   
  

 

 

    

 

 

    

 

 

 

Balance as of December 31, 2013

     (14,753      5,644         (9,109

Other comprehensive loss

     (2,852      (35,028      (37,880
  

 

 

    

 

 

    

 

 

 

Balance as of December 31, 2014

     (17,605      (29,384      (46,989

Other comprehensive loss

     (22,831      (7,024      (29,855
  

 

 

    

 

 

    

 

 

 

Balance as of December 31, 2015

   $ (40,436    $ (36,408    $ (76,844
  

 

 

    

 

 

    

 

 

 

No significant amount is expected to be reclassified in income over the next 12 months in connection with derivatives designated as cash flow hedges. The balance is expected to reverse over a 8  1 / 2 year period.

 

23. COMMITMENTS

The Corporation rents premises and equipment under operating leases and has entered into long-term commitments to purchase services and capital equipment that call for total future payments of $585.0 million, including an amount of $48.3 million for future rent payments to the ultimate parent corporation. The operating leases have various terms, escalation clauses, purchase options and renewal rights. The minimum payments for the coming years are as follows:

 

     Leases      Other
commitments
 

2016

   $ 40,708       $ 114,905   

2017 to 2020

     98,178         144,257   

2021 and thereafter

     47,763         139,203   

The Corporation and its subsidiaries’ operating lease expenses amounted to $52.1 million in 2015 ($48.9 million in 2014 and $48.0 million in 2013).

 

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Table of Contents

VIDEOTRON LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (continued)

Years ended December 31, 2015, 2014 and 2013

(tabular amounts in thousands of Canadian dollars, except for option data)

 

 

24. GUARANTEES

In the normal course of business, the Corporation enters into numerous agreements containing guarantees, including the following:

Operating leases

The Corporation has guaranteed a portion of the residual value of certain assets under operating leases for the benefit of the lessor. Should the Corporation terminate these leases prior to term (or at the end of the lease terms) and should the fair value of the assets be less than the guaranteed residual value, then the Corporation must, under certain conditions, compensate the lessor for a portion of the shortfall. As of December 31, 2015, the maximum exposure with respect to the guarantees was $15.4 million and no liability has been recorded in the consolidated balance sheet.

Business and asset disposals

In the sale of all or part of a business or an asset, in addition to possible indemnification relating to failure to perform covenants and breach of representations or warranties, the Corporation may agree to indemnify against claims related to the past conduct of the business. Typically, the term and amount of such indemnification will be limited by the agreement. The nature of these indemnification agreements prevents the Corporation from estimating the maximum potential liability it could be required to pay to guaranteed parties. The Corporation has not accrued any amount in respect of these items in the consolidated balance sheet.

Outsourcing companies and suppliers

In the normal course of its operations, the Corporation enters into contractual agreements with outsourcing companies and suppliers. In some cases, the Corporation agrees to provide indemnifications in the event of legal procedures initiated against them. In other cases, the Corporation provides indemnification to counterparties for damages resulting from the outsourcing companies and suppliers. The nature of the indemnification agreements prevents the Corporation from estimating the maximum potential liability it could be required to pay. No amount has been accrued in the consolidated balance sheet with respect to these indemnifications.

 

25. FINANCIAL INSTRUMENTS AND FINANCIAL RISK MANAGEMENT

The Corporation’s financial risk management policies have been established in order to identify and analyze the risks faced by the Corporation, to set appropriate risk limits and controls, and to monitor risks and adherence to limits. Risk-management policies are reviewed regularly to reflect changes in market conditions and in the Corporation’s activities.

The Corporation uses a number of financial instruments, mainly cash and cash equivalents, accounts receivable, bank indebtedness, accounts payable and accrued charges, long-term debt, and derivative financial instruments. As a result of their use of financial instruments, the Corporation and its subsidiaries are exposed to credit risk, liquidity risk and market risks relating to foreign exchange fluctuations and interest rate fluctuations.

In order to manage its foreign exchange and interest rate risks, the Corporation uses derivative financial instruments (i) to set in CAN dollars future payments on debts denominated in U.S. dollars (interest and principal) and certain purchases of inventories and other capital expenditures denominated in a foreign currency, (ii) to achieve a targeted balance of fixed and floating rate debts, and (iii) to lock-in the value of certain derivative financial instruments through offsetting transactions. The Corporation does not intend to settle its derivative financial instruments prior to their maturity as none of these instruments is held or issued for speculative purposes.

 

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VIDEOTRON LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (continued)

Years ended December 31, 2015, 2014 and 2013

(tabular amounts in thousands of Canadian dollars, except for option data)

 

 

25. FINANCIAL INSTRUMENTS AND FINANCIAL RISK MANAGEMENT (continued)

 

  (a) Description of derivative financial instruments

 

  (i) Foreign exchange forward contracts

 

Maturity

   CAN dollar
average
exchange rate
per one U.S.
dollar
     Notional
amount

sold
(in millions
of dollars)
     Notional
amount
bought

(in millions
of dollars)
 

Less than 1 year

     1.3105            $ 168.7       US$ 128.7   

2017 1

     1.3849       US$ 260.0            $ 360.1   
  1  

See footnote 1 below Cross-currency interest rate swaps table.

 

  (ii) Cross-currency interest rate swaps

 

Hedged item

   Hedging instrument  
     Period covered      Notional
amount
     Annual
interest rate
on notional
amount in
CAN dollars
    CAN dollar
exchange rate on
interest and capital
payments per one
U.S. dollar
 

5.000% Senior Notes due 2022

     2014 to 2022       US$ 543,125         6.01     0.9983   

5.000% Senior Notes due 2022

     2012 to 2022       US$ 256,875         5.81     1.0016   

5.375% Senior Notes due 2024 1

     2008 to 2017       US$ 260,000         9.21     1.2965   

5.375% Senior Notes due 2024

     2014 to 2024       US$ 158,605        
 
 
 
Bankers’
acceptance
3 months +
2.67
  
  
  
    1.1034   

5.375% Senior Notes due 2024

     2017 to 2024       US$ 441,395         5.62     1.1039   

 

  1  

The Corporation initially entered into these cross-currency interest rate swaps to hedge the foreign currency risk exposure under its 9.125% Senior Notes due in 2018 redeemed in 2014. These swaps are now used to set in CAN dollars all coupon payments through 2017 on US$441.4 million of notional amount under its 5.375% Senior Notes due in 2024 and issued in 2014. In conjunction with the repurposing of these swaps, the Corporation has entered into US$260.0 million offsetting foreign exchange forward contracts to lock-in the value of its hedging position related to the December 15, 2017 notional exchange.

Certain cross-currency interest rate swaps entered into by the Corporation include an option that allows each party to unwind the transaction on a specific date at the then settlement amount.

 

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VIDEOTRON LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (continued)

Years ended December 31, 2015, 2014 and 2013

(tabular amounts in thousands of Canadian dollars, except for option data)

 

 

25. FINANCIAL INSTRUMENTS AND FINANCIAL RISK MANAGEMENT (continued)

 

  (b) Fair value of financial instruments

In accordance with IFRS 13, Fair value measurement , the Corporation considers the following fair value hierarchy which reflects the significance of the inputs used in measuring its other financial instruments accounted for at fair value in the consolidated balance sheets:

 

   

Level 1: quoted prices (unadjusted) in active markets for identical assets or liabilities;

 

   

Level 2: inputs other than quoted prices included in Level 1 that are observable for the asset or liability, either directly (i.e., as prices) or indirectly (i.e., derived from prices); and

 

   

Level 3: inputs that are not based on observable market data (unobservable inputs).

The fair value of long-term debt is estimated based on quoted market prices when available or on valuation models using Level 1 and Level 2 inputs. When the Corporation uses valuation models, the fair value is estimated using discounted cash flows using year-end market yields or the market value of similar instruments with the same maturity.

The fair value of cash equivalents and bank indebtedness classified as held-for-trading and accounted for at their fair value on the consolidated balance sheets, is determined using Level 2 inputs.

The fair value of derivative financial instruments recognized in the consolidated balance sheets is estimated as per the Corporation’s valuation models. These models project future cash flows and discount the future amounts to a present value using the contractual terms of the derivative instrument and factors observable in external market data, such as period-end swap rates and foreign exchange rates (Level 2 inputs). An adjustment is also included to reflect non-performance risk impacted by the financial and economic environment prevailing at the date of the valuation in the recognized measure of the fair value of the derivative instruments by applying a credit default premium estimated using a combination of observable and unobservable inputs in the market (Level 3 inputs) to the net exposure of the counterparty or the Corporation. Derivative financial instruments are classified as Level 2.

The fair value of early settlement options recognized as embedded derivatives is determined by option pricing models using Level 2 market inputs, including volatility, discount factors and the underlying instrument’s adjusted implicit interest rate and credit premium.

 

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Table of Contents

VIDEOTRON LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (continued)

Years ended December 31, 2015, 2014 and 2013

(tabular amounts in thousands of Canadian dollars, except for option data)

 

 

25. FINANCIAL INSTRUMENTS AND FINANCIAL RISK MANAGEMENT (continued)

 

  (b) Fair value of financial instruments (continued)

 

The carrying value and fair value of long term debt and derivative financial instruments as of December 31, 2015 and 2014 are as follows:

 

     2015      2014  

Asset (liability)

   Carrying value      Fair value      Carrying value      Fair value  

Long-term debt 1, 2

   $ (3,286,115    $ (3,289,600    $ (2,951,011    $ (3,020,851

Derivative financial instruments 3

           

Early settlement options

     1,000         1,000         5,551         5,551   

Foreign exchange forward contracts 4

     9,282         9,282         4,216         4,216   

Cross-currency interest rate swaps 4

     484,915         484,915         107,023         107,023   

 

1  

The carrying value of long-term debt excludes adjustments to record changes in the fair value of long-term debt related to hedged interest rate risk, embedded derivatives and financing fees.

2  

The fair value of long-term debt excludes the fair value of early settlement options, which is presented separately in the table.

3  

The fair value of derivative financial instruments designated as hedges is an asset position of $494.2 million as of December 31, 2015 ($111.2 million as of December 31, 2014).

4  

The value of foreign exchange forward contracts entered into to lock-in the value of existing hedging positions is netted from the value of the offset financial instruments.

 

  (c) Credit risk management

Credit risk is the risk of financial loss to the Corporation if a customer or counterparty to a financial asset fails to meet its contractual obligations.

In the normal course of business, the Corporation continuously monitors the financial condition of its customers and reviews the credit history of each new customer. As of December 31, 2015, no customer balance represented a significant portion of the Corporation’s consolidated accounts receivable. The Corporation establishes an allowance for doubtful accounts based on the specific credit risk of its customers and historical trends. The allowance for doubtful accounts amounted to $16.6 million as of December 31, 2015 ($15.4 million as of December 31, 2014). As of December 31, 2015, 7.4% of accounts receivable were 90 days past their billing date (7.0% as of December 31, 2014), of which 63.3% had an allowance for doubtful accounts (61.2% as of December 31, 2014).

The following table shows changes to the allowance for doubtful accounts for the years ended December 31, 2015 and 2014:

 

     2015      2014  

Balance at beginning of the year

   $ 15,422       $ 15,678   

Charged to income

     30,189         28,962   

Utilization

     (29,042      (29,218
  

 

 

    

 

 

 

Balance at the end of the year

   $ 16,569       $ 15,422   
  

 

 

    

 

 

 

 

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Table of Contents

VIDEOTRON LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (continued)

Years ended December 31, 2015, 2014 and 2013

(tabular amounts in thousands of Canadian dollars, except for option data)

 

 

25. FINANCIAL INSTRUMENTS AND FINANCIAL RISK MANAGEMENT (continued)

 

  (c) Credit risk management (continued)

 

The Corporation believes that its product lines and the diversity of its customer base are instrumental in reducing its credit risk, as well as the impact of fluctuations in product-line demand. The Corporation does not believe that it is exposed to an unusual level of customer credit risk.

As a result of its use of derivative financial instruments, the Corporation is exposed to the risk of non-performance by a third party. When the Corporation enters into derivative contracts, the counterparties (either foreign or Canadian) must have credit ratings at least in accordance with the Corporation’s risk-management policy and are subject to concentration limits. These credit ratings and concentration limits are monitored on an ongoing basis but at least quarterly.

 

  (d) Liquidity risk management

Liquidity risk is the risk that the Corporation will not be able to meet its financial obligations as they fall due or the risk that those financial obligations will have to be met at excessive cost. The Corporation manages this exposure through staggered debt maturities. The weighted average term of the Corporation’s consolidated debt was approximately 7.6 years as of December 31, 2015 (7.3 years as of December 31, 2014).

The Corporation’s management believes that cash flows and available sources of financing should be sufficient to cover committed cash requirements for capital investments, working capital, interest payments, debt repayments, pension plan contributions, and dividends (or distributions) in the future. The Corporation has access to cash flows generated by its subsidiaries through dividends and cash advances paid by its wholly owned subsidiaries.

As of December 31, 2015, material contractual obligations related to financial instruments included capital repayment and interest on long-term debt and obligations related to derivative instruments, less estimated future receipts on derivative instruments. These obligations and their maturities are as follows:

 

     Total     Less than 1
year
     1-3 years     3-5 years      5 years or
more
 

Bank indebtedness

   $ 11,698      $ 11,698       $ —        $ —         $ —     

Accounts payable and accrued charges

     422,769        422,769         —          —           —     

Amounts payable to affiliated corporations

     62,913        62,913         —          —           —     

Long-term debt 1

     3,286,115        10,714         16,072        246,729         3,012,600   

Interest payments 2

     1,173,779        116,798         306,932        305,523         444,526   

Derivative instruments 3

     (489,545     4,646         (18,346     —           (475,845
  

 

 

   

 

 

    

 

 

   

 

 

    

 

 

 

Total

   $ 4,467,729      $ 629,538       $ 304,658      $ 552,252       $ 2,981,281   
  

 

 

   

 

 

    

 

 

   

 

 

    

 

 

 

 

1  

The carrying value of long-term debt excludes adjustments to record changes in the fair value of long-term debt related to hedged interest rate risk, embedded derivatives and financing fees.

2  

Estimate of interest payable on long-term debt, based on interest rates, hedging of interest rates and hedging of foreign exchange rates as of December 31, 2015.

3  

Estimated future receipts, net of future disbursements, on derivative financial instruments related to foreign exchange hedging.

 

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Table of Contents

VIDEOTRON LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (continued)

Years ended December 31, 2015, 2014 and 2013

(tabular amounts in thousands of Canadian dollars, except for option data)

 

 

25. FINANCIAL INSTRUMENTS AND FINANCIAL RISK MANAGEMENT (continued)

 

  (e) Market risk

Market risk is the risk that changes in market prices due to foreign exchange rates and/or interest rates will affect the value of the Corporation’s financial instruments. The objective of market risk management is to mitigate and control exposures within acceptable parameters while optimizing the return on risk.

Foreign currency risk

Most of the Corporation’s consolidated revenues and expenses, other than interest expense on U.S.-dollar-denominated debt, purchases of set-top boxes, handsets and cable modems and certain capital expenditures, are received or denominated in CAN dollars. A large portion of the interest, principal and premium, if any, payable on its debt is payable in U.S. dollars. The Corporation has entered into transactions to hedge the foreign currency risk exposure on its U.S.-dollar-denominated debt obligations outstanding as of December 31, 2015, to hedge its exposure on certain purchases of set-top boxes, handsets, cable modems and capital expenditures and to lock-in the value of certain derivative financial instruments through offsetting transactions. Accordingly, the Corporation’s sensitivity to variations in foreign exchange rates is economically limited.

The estimated sensitivity on income and on other comprehensive income, before income tax, of a variance of $0.10 in the year-end exchange rate of a CAN dollar per one U.S. dollar used to calculate the fair value of financial instruments as of December 31, 2015 is as follows:

 

Increase (decrease)

   Income      Other
comprehensive
income
 

Increase of $0.10

     

Gain on valuation and translation of financial instruments and derivative financial instruments

   $ 2,188       $ 31,459   

Decrease of $0.10

     

Gain on valuation and translation of financial instruments and derivative financial instruments

     (2,188      (31,459

Interest rate risk

The Corporation’s bank credit facilities bear interest at floating rates based on the following reference rates: (i) Bankers’ acceptance rate, (ii) Canadian prime rate and (iii) U.S. prime rate. The Senior Notes issued by the Corporation bear interest at fixed rates. The Corporation has entered into cross-currency interest rate swap agreements in order to manage cash flow risk exposure. As of December 31, 2015, after taking into account the hedging instruments, long-term debt was comprised of 84.0% fixed rate debt (85.0% in 2014) and 16.0% floating rate debt (15.0% in 2014).

The estimated sensitivity on interest payments of a 100 basis-point variance in the year-end Canadian Bankers’ acceptance rate as of December 31, 2015 was $4.5 million.

 

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Table of Contents

VIDEOTRON LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (continued)

Years ended December 31, 2015, 2014 and 2013

(tabular amounts in thousands of Canadian dollars, except for option data)

 

 

25. FINANCIAL INSTRUMENTS AND FINANCIAL RISK MANAGEMENT (continued)

 

  (e) Market risk (continued)

 

The estimated sensitivity on income and on other comprehensive income, before income tax, of a 100 basis-point variance in the discount rate used to calculate the fair value of financial instruments as of December 31, 2015, as per the Corporation’s valuation models, was as follows:

 

Increase (decrease)

   Income      Other
comprehensive
income
 

Increase of 100 basis points

   $ (3,585    $ (25,147

Decrease of 100 basis points

     3,585         25,147   

 

  (f) Capital management

The Corporation’s primary objective in managing capital is to maintain an optimal capital base in order to support the capital requirements of its various businesses, including growth opportunities.

In managing its capital structure, the Corporation takes into account the asset characteristics of its subsidiaries and planned requirements for funds. Management of the capital structure involves the issuance of new debt, the repayment of existing debt using cash flows generated by operations, and the level of distributions to the parent corporation. The Corporation has not significantly changed its strategy regarding the management of its capital structure since the last financial year.

The Corporation’s capital structure is composed of equity, bank indebtedness, long-term debt and net assets and liabilities related to derivative financial instruments less cash and cash equivalents. The capital structure as of December 31, 2015 and 2014 is as follows:

 

     2015      2014  

Bank indebtedness

   $ 11,698       $ —     

Long-term debt

     3,266,642         2,924,540   

Derivative financial instruments asset

     (494,197      (111,239

Cash and cash equivalents

     (1,774      (342,802
  

 

 

    

 

 

 

Net liabilities

     2,782,369         2,470,499   

Equity

   $ 813,800       $ 793,907   
  

 

 

    

 

 

 

The Corporation is not subject to any externally imposed capital requirements other than certain restrictions under the terms of its borrowing agreements, which relate, among other things, to permitted investments, inter-corporation transactions, the declaration and payment of dividends or other distributions.

 

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VIDEOTRON LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (continued)

Years ended December 31, 2015, 2014 and 2013

(tabular amounts in thousands of Canadian dollars, except for option data)

 

 

26. RELATED PARTY TRANSACTIONS

Compensation of key management personnel

Key management personnel comprises members of the Board of Directors and key senior managers of the Corporation and its main subsidiaries. Their compensation is as follows:

 

     2015      2014      2013  

Salaries and short-term benefits

   $ 5,100       $ 4,528       $ 4,242   

Post-employment benefits

     225         167         534   

Share-based compensation

     1,226         1,105         1,709   

Other long-term benefits

     1,688         1,889         1,859   
  

 

 

    

 

 

    

 

 

 
   $ 8,239       $ 7,689       $ 8,344   
  

 

 

    

 

 

    

 

 

 

Operating transactions

During the years ended December 31, 2015, 2014 and 2013, the Corporation and its subsidiaries made purchases and incurred rent charges with the parent corporation and affiliated corporations, which are included in purchase of goods and services. The Corporation and its subsidiaries also made sales to the parent corporation and affiliated corporations. These transactions were accounted for at the consideration agreed between parties:

 

     2015      2014      2013  

Ultimate parent and parent corporation :

        

Revenues

   $ 696       $ 680       $ 541   

Purchase of goods and services

     8,584         7,572         8,508   

Operating expenses recovered

     (597      (682      (4,207

Affiliated corporations :

        

Revenues

     8,059         10,349         11,019   

Purchase of goods and services

     103,435         81,148         73,193   

Operating expenses recovered

     (1,395      (701      (3,418

 

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Table of Contents

VIDEOTRON LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (continued)

Years ended December 31, 2015, 2014 and 2013

(tabular amounts in thousands of Canadian dollars, except for option data)

 

 

26. RELATED PARTY TRANSACTIONS (continued)

 

Accounts receivable from affiliated corporations:

 

     2015      2014  

Ultimate parent and parent corporation :

     

Accounts receivable

   $ 474       $ 234   

Dividends receivable

     7,455         3,852   

Amount receivable from business disposal (note 8)

     —           7,848   

Affiliated corporations :

     

Accounts receivable

     4,401         6,390   
  

 

 

    

 

 

 
   $ 12,330       $ 18,324   
  

 

 

    

 

 

 

Accounts payable to affiliated corporations:

 

     2015      2014  

Ultimate parent and parent corporation :

     

Accounts payable

   $ 35,743       $ 27,368   

Interest payable

     7,351         3,782   

Affiliated corporations :

     

Accounts payable

     19,819         18,234   
  

 

 

    

 

 

 
   $ 62,913       $ 49,384   
  

 

 

    

 

 

 

Management arrangements

The Corporation pays annual management fees to the parent corporation for services rendered to the Corporation, including internal audit, legal and corporate, financial planning and treasury, tax, real estate, human resources, risk management, public relations and other services. Management fees amounted to $48.0 million in 2015 ($43.5 million in 2014 and $45.0 million in 2013). The agreement provides for an annual management fee to be agreed upon for the year 2016. In addition, the parent corporation is entitled to the reimbursement of out-of-pocket expenses incurred in connection with the services provided under the agreement.

 

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Table of Contents

VIDEOTRON LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (continued)

Years ended December 31, 2015, 2014 and 2013

(tabular amounts in thousands of Canadian dollars, except for option data)

 

 

27. PENSION PLANS AND POSTRETIREMENT BENEFITS

The Corporation maintains various defined benefit and defined contribution plans. The Corporation also provides postretirement benefits to eligible retired employees, principally health care and cable services. The Corporation’s pension plans are registered with a Québec or federal regulatory authority.

The Corporation’s funding policy for its funded pension plans is to maintain its contribution at a level sufficient to cover benefits and to meet requirements of the applicable regulations and plan provisions that govern the funding of the plans. These provisions establish, among others, the future payment of amortization payments when the degree of solvency of the pension plans is less than 100% as defined by the relevant Québec and federal laws. Payments are determined by an actuarial report performed by an independent company at least every three years or annually, according to the applicable laws and in accordance with plan provisions.

By their design, the defined benefit plans expose the Corporation to the typical risks faced by defined benefit plans, such as investment performance, changes to the discount rates used to value the obligation, longevity of plan participants, and future inflation. The administration of the plans is assured by pension committees composed of members of the plans, independent members of the Corporation’s management, or the Corporation in accordance with the provisions each plan. Under the Corporation’s rules of governance, the approval and oversight of the defined benefit plan policies are performed at different levels through the pension committees, the Corporation’s management, or the Audit Committee. The risk management of pension plans is also performed under the leadership of these committees at various levels. The custody of securities and management of security transactions are assigned to trustees within a mandate given by the pension committee or the Corporation, as the case may be. Policies include those on investment objectives, risk mitigation strategies and the mandate to hire investment fund managers and monitor their work and performance. The benefit pension plans are monitored on an ongoing basis to assess the benefit, funding and investment policies, financial status, and the Corporation’s funding requirement.

The following tables show a reconciliation of the changes in the plans’ benefit obligations and the fair value of plan assets for the years ended December 31, 2015 and 2014:

 

     Pension benefits      Postretirement benefits  
     2015      2014      2015      2014  

Change in benefit obligations

           

Benefit obligations at the beginning of the year

   $ 309,394       $ 230,598       $ 31,617       $ 16,739   

Service costs

     21,875         16,384         1,373         545   

Interest costs

     12,962         11,473         1,344         834   

Plan participants’ contributions

     7,385         7,600         —           —     

Actuarial loss (gain) arising from:

           

Demographic assumptions

     —           1,898         —           (246

Financial assumptions

     7,870         48,327         792         3,631   

Participant experience

     5,742         978         —           10,478   

Benefits and settlements paid

     (10,355      (9,869      (436      (195

Other

     537         2,005         —           (169
  

 

 

    

 

 

    

 

 

    

 

 

 

Benefit obligations at the end of the year

   $ 355,410       $ 309,394       $ 34,690       $ 31,617   
  

 

 

    

 

 

    

 

 

    

 

 

 

 

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VIDEOTRON LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (continued)

Years ended December 31, 2015, 2014 and 2013

(tabular amounts in thousands of Canadian dollars, except for option data)

 

 

27. PENSION PLANS AND POSTRETIREMENT BENEFITS (continued)

 

     Pension benefits      Postretirement benefits  
     2015      2014      2015      2014  

Change in plan assets

           

Fair value of plan assets at beginning of year

   $ 285,125       $ 234,614       $ —         $ —     

Actual return on plan assets

     15,800         27,008         —           —     

Employer contributions

     22,625         23,767         436         195   

Plan participants’ contributions

     7,385         7,600         —           —     

Benefits and settlements paid

     (10,355      (9,869      (436      (195

Other

     537         2,005         —           —     
  

 

 

    

 

 

    

 

 

    

 

 

 

Fair value of plan assets at end of year

   $ 321,117       $ 285,125       $ —         $ —     
  

 

 

    

 

 

    

 

 

    

 

 

 

As of December 31, 2015, the weighted average duration of defined benefit obligations was 23.5 years (23.7 years in 2014). The Corporation expects future benefit payments of $10.9 million in 2016.

The Corporation’s investment strategy for plan assets takes into account a number of factors, including the time horizon of the pension plans’ obligations and the investment risk. For each of the plans, an allocation range by asset class is developed whereby a mix of equities and fixed-income investments is used to optimize the risk-return profile of plan assets and to mitigate asset-liability mismatch. Plan assets are comprised of:

 

     2015     2014  

Equity securities:

    

Canadian

     24.2     25.1

Foreign

     37.5        37.6   

Debt securities

     38.3        37.0   

Other

     —          0.3   
  

 

 

   

 

 

 
     100.0     100.0
  

 

 

   

 

 

 

Where funded plans have a net defined benefit asset, the Corporation determines if potential reductions in future contributions are permitted by applicable regulations. When a defined benefit asset is created, it cannot exceed the future economic benefit that the Corporation can expect to obtain from the asset. The future economic benefit represents the value of reductions in future contributions and expenses payable to the pension fund. It does not reflect gains that could be generated in the future that would allow reductions in contributions by the Corporation. When there is a minimum funding requirement, this could also limit the amount recognized in the balance sheet. A minimum funding requirement represents the present value of amortization payments based on the most recent actuarial financing reports filed.

 

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Table of Contents

VIDEOTRON LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (continued)

Years ended December 31, 2015, 2014 and 2013

(tabular amounts in thousands of Canadian dollars, except for option data)

 

 

27. PENSION PLANS AND POSTRETIREMENT BENEFITS (continued)

 

The reconciliation of funded status to the net amount recognized in the consolidated balance sheets is as follows:

 

     Pension benefits      Postretirement benefits  
     2015      2014      2015      2014  
                             

Benefit obligations

   $ (355,410    $ (309,394    $ (34,690    $ (31,617

Fair value of plan assets

     321,117         285,125         —           —     
  

 

 

    

 

 

    

 

 

    

 

 

 

Plan deficit and net amount recognized 1

   $ (34,293    $ (24,269    $ (34,690    $ (31,617
  

 

 

    

 

 

    

 

 

    

 

 

 

 

1  

The net amount recognized for 2015 is included in Other liabilities (note 19).

Components of re-measurements are as follows:

 

     Pension benefits     Postretirement benefits  
     2015     2014     2013     2015     2014     2013  

Actuarial (loss) gain on benefit obligations

   $ (13,612   $ (51,203   $ 29,839      $ (792   $ (13,863   $ 5,598   

Actual return on plan assets, less interest income anticipated in the interest on the net defined benefit liability calculation

     4,790        16,134        22,284        —          —          —     

Asset limit and minimum funding adjustment

     —          1,014        (966     —          —          —     
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Re-measurements recorded in other comprehensive income

   $ (8,822   $ (34,055   $ 51,157      $ (792   $ (13,863   $ 5,598   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Components of the net benefit costs are as follows:

 

     Pension benefits      Postretirement benefits  
     2015      2014      2013      2015      2014      2013  

Employee costs:

                 

Service costs

   $ 21,875       $ 16,384       $ 20,101       $ 1,373       $ 545       $ 762   

Other fees

     384         437         386         —           —           —     

Interest on net defined benefit liability

     1,569         209         2,892         1,344         834         938   
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

Net benefit costs

   $ 23,828       $ 17,030       $ 23,379       $ 2,717       $ 1,379       $ 1,700   
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

The expense related to defined contribution pension plans amounted to $12.1 million in 2015 ($10.8 million in 2014 and $10.0 million in 2013).

The expected employer contributions to the Corporation’s defined benefit pension plans and post-retirement benefit plans will be $22.3 million in 2016 based on the most recent financial actuarial reports filed (contributions of $23.1 million were paid in 2015).

 

F-53


Table of Contents

VIDEOTRON LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (continued)

Years ended December 31, 2015, 2014 and 2013

(tabular amounts in thousands of Canadian dollars, except for option data)

 

 

27. PENSION PLANS AND POSTRETIREMENT BENEFITS (continued)

 

Assumptions

The Corporation determines its assumption for the discount rate to be used for purposes of computing annual service and interest costs based on an index of high-quality corporate bond-yield and matched-funding yield curve analysis as of the measurement date.

The actuarial assumptions used in measuring the Corporation’s benefit obligations as of December 31, 2015, 2014 and 2013 and current periodic benefit costs are as follows:

 

     Pension benefits     Postretirement benefits  
     2015     2014     2013     2015     2014     2013  

Benefit obligations

            

Rates as of year-end:

            

Discount rate

     4.00     4.10     4.90     4.00     4.10     4.90

Rate of compensation increase

     3.25        3.25        3.25        3.00        3.00        3.00   

Current periodic costs

            

Rates as of preceding year-end:

            

Discount rate

     4.10     4.90     4.40     4.10     4.90     4.40

Rate of compensation increase

     3.25        3.25        3.50        3.00        3.00        3.25   

The assumed average retirement age of participants used was of 62 years in 2015, 2014 and 2013.

The assumed health care cost trend rate used in measuring the accumulated postretirement benefit obligations was 7.0% at the end of 2015. These costs, as per the estimate, are expected to decrease gradually over the next 10 years to 4.5% and to remain at that level thereafter.

Sensitivity analysis

An increase of 10 basis points in the discount rate would have decreased the pension benefits obligation by $8.1 million and the postretirement benefits obligation by $0.8 million as of December 31, 2015. There are limitations to this sensitivity analysis since it only considers the impacts of an increase of 10 basis points in the discount rate assumption without changing any other assumptions. No sensitivity analysis was performed on other assumptions as a similar change to those assumptions would not have a significant impact on the consolidated financial statements.

 

28. SUBSEQUENT EVENT

On January 7, 2016, the Corporation acquired Fibrenoire Inc. (“Fibrenoire”), a company that provides businesses with fibre-optic connectivity services. The transaction will enable Videotron Business Solutions and Fibrenoire to join forces to meet the growing demand from business customers for fibre-optic connectivity. The purchase price was $125.0 million, including $120.9 million paid at closing, subject to certain adjustments.

 

F-54

Exhibit 1.24

 

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[Translation]

SCHEDULE A

to the articles of incorporation of the Corporation

The share capital of the Corporation is composed of an unlimited number of Class A, Class B and Class C shares, all without par value. The rights, privileges, conditions and restrictions attached to each of these classes of shares are those described hereinafter regarding each of them.

 

1. CLASS A SHARES

Subject to the rights granted to the holders of all other classes of shares of the share capital of the Corporation, the Class A shares shall have attached thereto the following rights, privileges, restrictions and conditions:

1.1 VOTE. The holder of Class A shares shall be entitled to one (1) vote for each Class A share they hold and shall be entitled to receive notice of the meetings of the shareholders of the Corporation and to attend them, except for those at which only the holders of a specific class of shares are entitled to vote.

1.2 DIVIDENDS. The registered holders of Class A shares shall be entitled to receive, during each financial year of the Corporation, all the dividends declared on these shares by the directors of the Corporation, if any, pari passu with the holders of Class B and Class C shares.

To this end, the directors of the Corporation, at their entire discretion and without being required to comply with the principle of equality among shareholders, may declare dividends on the shares of any other class during a financial year, without being obliged to declare a dividend on the Class A shares for the financial year in question.

Any dividend declared on the Class A shares shall be payable at the time or times, for the amounts, in such manner and at such place or places as the directors of the Corporation might determine from time to time.

1.3 LIQUIDATION. Subject to the preferential rights granted to the holders of Class B shares, in the event of liquidation, winding-up or dissolution of the Corporation or any distribution of the assets of the Corporation among its shareholders for the purpose of winding up its affairs, the holders of Class A shares shall be entitled to share the remaining assets and funds of the Corporation, equally and rateably, concurrently with the holders of Class B and Class C shares, but after payment to the holders of Class B shares of an amount equivalent to the capital paid on these shares, plus the dividends declared and unpaid.

 

2. CLASS B SHARES

Subject to the rights granted to the holders of all other classes of shares of the share capital of the Corporation, the Class B shares shall have attached thereto the following rights, privileges, restrictions and conditions:

2.1 VOTE. The holders of Class B shares shall be entitled to one (1) vote for each Class B share they hold and shall be entitled to receive notice of the meetings of the shareholders of the Corporation and to attend them, except for those at which only the holders of a specific class of shares are entitled to vote.

 

2


2.2 DIVIDENDS. The registered holders of Class B shares shall be entitled to receive, during each financial year of the Corporation, all the dividends declared on these shares by the directors of the Corporation, if any, pari passu with the holders of Class A and Class C shares.

To this end, the directors of the Corporation, at their entire discretion and without being required to comply with the principle of equality among shareholders, may declare dividends on the shares of any other class during a financial year, without being obliged to declare a dividend on the Class B shares for the financial year in question.

Any dividend declared on the Class B shares shall be payable at the time or times, for the amounts, in such manner and at such place or places as the directors of the Corporation might determine from time to time.

2.3 LIQUIDATION. In the event of liquidation, winding-up or dissolution of the Corporation or any distribution of the assets of the Corporation among its shareholders for the purpose of winding up its affairs, the holders of Class B shares shall rank prior to the holders of all other classes of shares and no amount shall be paid or any assets distributed to the holders of any other classes of shares of the share capital of the Corporation until the holders of Class B shares have been paid an amount equivalent to the capital paid on these shares, plus an amount equivalent to all the dividends then declared on these shares and unpaid, and the holders of Class B shares shall be entitled to be paid equally and rateably all such monies out of the assets of the Corporation by preference over and in priority to the holders of the shares of any other classes of the share capital of the Corporation. The holders of Class B shares shall also be entitled to share the remaining assets and funds of the Corporation, equally and rateably, concurrently with the holders of Class A and Class C shares.

 

3. CLASS C SHARES

Subject to the rights granted to the holders of all other classes of shares of the share capital of the Corporation, the Class C shares shall have attached thereto the following rights, privileges, restrictions and conditions:

3.1 VOTE. Except where expressly provided to the contrary herein, the holders of Class C shares shall not be entitled, in this capacity, to any vote for the election of the directors or for any other purpose and not be entitled to receive notice of the meetings of the shareholders of the Corporation and to attend them.

3.2 DIVIDENDS. The registered holders of Class C shares shall be entitled to receive, during each financial year of the Corporation, all the dividends declared on these shares by the directors of the Corporation, if any, pari passu with the holders of Class A and Class B shares.

To this end the directors of the Corporation, at their entire discretion and without being required to comply with the principle of equality among shareholders, may declare dividends on the shares of any other class during a financial year, without being obliged to declare a dividend on the Class C shares for the financial year in question.

 

3


Any dividend declared on the Class C shares shall be payable at the time or times, for the amounts, in such manner and at such place or places as the directors of the Corporation might determine from time to time.

3.3 LIQUIDATION. Subject to the preferential rights granted to the holders of Class B shares, in the event of liquidation, winding-up or dissolution of the Corporation or any distribution of the assets of the Corporation among its shareholders for the purpose of winding up its affairs, the holders of Class C shares shall be entitled to share the remaining assets and funds of the Corporation, equally and rateably, concurrently with the holders of Class A and Class B shares, but after payment to the holders of Class B shares of an amount equivalent to the capital paid on these shares, plus the dividends declared and unpaid.

3.4 AMENDMENTS. As long as any there are Class C shares issued and outstanding, the Corporation may not, except with the approval of the holders of Class C shares, as mentioned hereinafter, and after having complied with the relevant provisions of the laws that govern the Corporation, (a) create any other class of shares ranking prior to or pari passu with the Class C shares, or (b) revoke, amend or otherwise change any of the provisions contained in paragraphs 3.1 to 3.3 hereof or in this paragraph 3.4.

Any approval by the above-mentioned holders of Class C shares shall be deemed to have been sufficiently given if contained in (a) a resolution adopted by at least 2/3 of the votes cast at a meeting of the holders of Class C shares held for this purpose, at which meeting these holders shall be entitled to one (1) vote for each Class C share held by them respectively, or in (b) an instrument signed by the holders of at least 2/3 of the then issued and outstanding Class C shares.

Any approval given in this manner shall be binding upon all the holders of Class C shares.

 

4


Schedule

Restrictions on Share Transfers

The shares of the Corporation may not be transferred without the consent (i) of the directors expressed by a resolution passed or signed by them and recorded in the books of the Corporation, or (ii) of the holders of the majority in number of the outstanding voting shares of the Corporation.

 

5


Schedule

Other Provisions

When the articles of the Corporation provide for the minimum and maximum number of directors, the number of directors of the Corporation, within these numbers, may be determined, from time to time, by resolution of the directors.

The securities of the Corporation, other than the shares and the non-convertible debt securities, may not be transferred except in accordance with the restrictions on their transfer contained in the agreement among the holders of the applicable securities; in the absence of such restrictions, no transfer may be made without the consent of the directors expressed by a resolution.

 

6

Exhibit 1.25

[TRANSLATION]

4DEGREES COLOCATION INC.

(the “Corporation”)

GENERAL BY-LAWS

BY-LAW ONE

SHAREHOLDERS

ARTICLE 1. ANNUAL MEETINGS The annual meeting of shareholders of the Corporation shall be held at such place, on such date and at such time as the Board of Directors may determine from time to time. Annual meetings of shareholders may be called at any time by order of the Board of Directors, the Chairman of the Board or, provided they are directors of the Corporation, the President or any Vice-President.

ARTICLE 2. SPECIAL GENERAL MEETINGS Special general meetings of shareholders shall be held at such place, on such date and at such time as the Board of Directors may determine from time to time or at any place where all the shareholders of the Corporation entitled to vote thereat are present in person or represented by proxy or at such other place as all the shareholders of the Corporation shall approve in writing.

Special general meetings of shareholders may be called at any time by order of the Board of Directors, the Chairman of the Board or, provided they are directors of the Corporation, the President or any Vice-President.

ARTICLE 3. NOTICE OF MEETING A notice specifying the place, date, time and purpose of any meeting of shareholders shall be given to all the shareholders entitled thereto at least 21 days but not more than 60 days prior to the date fixed for the meeting. The notice may be mailed, postage prepaid, to the shareholders at their respective addresses as they appear on the books of the Corporation or delivered by hand or transmitted by any means of telecommunication.

If the convening of a meeting of shareholders is a matter of urgency, notice of such meeting may be given not less than 48 hours before such meeting is to be held.

In the case of joint holders of a share, the notice of meeting shall be given to that one of them whose name stands first in the books of the Corporation and notice so given shall be sufficient notice to all the joint holders.


Irregularities in the notice or in the giving thereof as well as the unintentional omission to give notice to, or the non-receipt of any such notice by, any of the shareholders shall not invalidate any action taken by or at any such meeting.

ARTICLE 4. CHAIRMAN The Chairman of the Board or, in his absence, the President, if he is a director, or, in his absence, one of the Vice-Presidents who is a director of the Corporation (to be designated by the meeting in the event of more than one such Vice-President being present) shall preside at all meetings of shareholders. If all of the aforesaid officers be absent or decline to act, the persons present and entitled to vote may choose one of their number to act as chairman of the meeting. In the event of an equality of votes, the chairman of any meeting shall not be entitled to a casting vote in respect of any matter submitted to the vote of the meeting.

ARTICLE 5. QUORUM, VOTING AND ADJOURNMENTS The holder or holders of not less than 50% of the outstanding shares of the share capital of the Corporation carrying voting rights at such meeting, present in person or represented by proxy, shall constitute a quorum for any meeting of shareholders of the Corporation.

The acts of the holders of a majority of the shares so present or represented and carrying voting rights thereat shall be the acts of all the shareholders except as to matters on which the vote or consent of the holders of a greater number of shares is required or directed by the laws governing the Corporation, the constituting act or the by-laws of the Corporation.

Should a quorum not be present at any meeting of shareholders, those present in person and entitled to be counted for the purpose of forming a quorum shall have power to adjourn the meeting from time to time and from place to place without notice other than announcement at the meeting until a quorum shall be present. At any such adjourned meeting, provided a quorum is present, any business may be transacted which might have been transacted at the meeting adjourned.

ARTICLE 6. RIGHT TO VOTE AND PROXY At all meetings of shareholders, each shareholder present and entitled to vote thereat shall have on a show of hands one vote and, upon a poll, each shareholder present in person or represented by proxy shall be entitled to one vote for each share carrying voting rights registered in his name in the books of the Corporation unless, under the terms of the constituting act some other scale of voting is fixed, in which event such scale of voting shall be adopted. Any shareholder or proxy may demand a ballot (either before or on the declaration of the result of a vote upon a show of hands) in respect of any matter submitted to the vote of the shareholders.

 

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In the case of joint holders of a share, the vote of the senior who tenders a vote, whether in person or by proxy, shall be accepted to the exclusion of the votes of the other joint holders, and for this purpose seniority shall be determined by the order in which the names stand in the books of the Corporation.

ARTICLE 7. SCRUTINEERS The chairman at any meeting of shareholders may appoint one or more persons, who need not be shareholders, to act as scrutineer or scrutineers at the meeting.

ARTICLE 8. ADDRESSES   OF   SHAREHOLDERS Every shareholder shall furnish to the Corporation an address to which all notices intended for such shareholder shall be given, failing which, any such notice may be given to him at any other address appearing on the books of the Corporation. If no address appears on the books of the Corporation, such notice may be sent to such address as the person sending the notice may consider to be the most likely to result in such notice promptly reaching such shareholder.

BY-LAW TWO

BOARD OF DIRECTORS

ARTICLE 1. ELECTION OF DIRECTORS AND TERM OF OFFICE Except as herein otherwise provided, each director shall be elected at an annual meeting of shareholders or at any special general meeting of shareholders called for that purpose, by a majority of the votes cast in respect of such election. It shall not be necessary that the voting for the election of directors of the Corporation be conducted by ballot unless voting by ballot is requested by a shareholder or proxy. Each director so elected shall hold office until the election of his successor unless he shall resign or his office become vacant by death, removal or other cause.

ARTICLE 2. ACTS OF DIRECTORS All acts done by the directors or by any person acting as a director, until their successors have been duly elected or appointed, shall, notwithstanding that it be afterwards discovered that there was some defect in the election of the directors or such person acting as aforesaid or that they or any of them were disqualified, be as valid as if the directors or such other person, as the case may be, had been duly elected and were qualified to be directors of the Corporation.

ARTICLE 3. POWER TO ALLOT STOCK AND GRANT OPTIONS Subject to the provisions of the constituting act of the Corporation, the shares of the Corporation shall be at all times under the control of the directors who may by resolution, from time to time, accept subscriptions, allot, issue, grant options in respect of or otherwise dispose of the whole or any part of the unissued shares of the

 

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share capital of the Corporation on such terms and conditions, for such consideration not contrary to law or to the constituting act of the Corporation and at such times prescribed in such resolutions. The directors may, from time to time, make calls upon the shareholders in respect of any moneys unpaid upon their shares. Each shareholder shall pay the amount called on his shares at the time and place fixed by the directors.

ARTICLE 4. POWER   TO   DECLARE   DIVIDENDS The directors may from time to time as they may deem advisable, declare and pay dividends out of any funds available for dividends to the shareholders according to their respective rights and interest therein.

Any dividend may be paid by cheque or warrant made payable to and mailed to the address on the books of the Corporation of the shareholder entitled thereto and in the case of joint holders to that one of them whose name stands first in the books of the Corporation, and the mailing of such cheque or warrant shall constitute payment unless the cheque or warrant is not paid upon presentation.

ARTICLE 5. PLACE   OF   MEETINGS   AND   NOTICES All meetings of the Board of Directors shall be held at such place, on such date and at such time as may be determined from time to time by the Board of Directors or at any place where all the directors are present.

Any meeting of the Board of Directors may be called at any time by or on the order of the Chairman of the Board or, provided they are directors of the Corporation, the President or any Vice-President or by any two directors.

Notice specifying the place, date and time of any meeting of the Board of Directors shall be given to each of the directors at least 72 hours prior to the date fixed for such meeting. The notice may be mailed, postage prepaid, to each director at his residence or usual place of business, or delivered by hand or transmitted by any means of telecommunication.

In any case where the convening of a meeting of directors is a matter of urgency, notice of such meeting may be given not less than 3 hours before such meeting is to be held.

Notwithstanding any other provisions of this ARTICLE 5, immediately after the annual meeting of shareholders in each year, a meeting of such of the newly elected directors as are then present shall be held, provided they shall constitute a quorum, without further notice, for the election or appointment of officers of the Corporation and the transaction of such other business as may come before them.

 

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ARTICLE 6. CHAIRMAN The Chairman of the Board or, in his absence, the President, if he is a director, or, in his absence, one of the Vice-Presidents who is a director of the Corporation (to be designated by the meeting in the event of more than one such Vice-President being present) shall preside at all meetings of the directors. If all of the aforesaid officers are absent or decline to act, the directors present may choose one of their number to act as chairman of the meeting. In the event of an equality of votes, the chairman of any meeting shall be entitled to cast one vote as a director, but not a second or casting vote in respect of any matter submitted to the vote of the meeting.

ARTICLE 7. QUORUM Except when the Corporation has only one director, the directors may from time to time fix by resolution the quorum for meetings of directors, but until otherwise fixed, a majority of the directors in office shall constitute a quorum.

ARTICLE 8. VACANCIES AND RESIGNATION In the case of a vacancy occurring in the Board of Directors, the directors then in office, by the affirmative vote of a majority of said remaining directors, so long as a quorum of the Board remains in office, may from time to time and at any time fill such vacancy for the remainder of the term.

ARTICLE 9. SOLE DIRECTOR In the case where the Corporation has only one director, the acts that may be or are required to be taken by the Board of Directors or by two directors of the Corporation, under the Corporation’s by-laws, may be taken by the sole director of the Corporation.

BY-LAW THREE

OFFICERS

ARTICLE 1. OFFICERS The directors shall elect or appoint a President, shall appoint a Secretary and may also elect or appoint as officers a Chairman of the Board, one or more Vice-Presidents, one or more Assistant-Secretaries, a Treasurer and one or more Assistant-Treasurers. Such officers shall be elected or appointed at the first meeting of the Board of Directors after each annual meeting of shareholders. There may also be appointed such other officers as the Board of Directors may from time to time deem necessary. Such officers shall respectively perform such duties, in addition to those specified in the by-laws of the Corporation, as shall from time to time be prescribed by the Board of Directors. The same person may hold more than one office, provided, however, that the same person shall not hold the office of President and Vice-President. None of such officers except the Chairman of the Board need be a director of the Corporation.

 

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ARTICLE 2. CHAIRMAN OF THE BOARD The Chairman of the Board, if any, shall preside at all meetings of directors and shareholders of the Corporation and he shall have such other powers and duties as the Board of Directors may determine from time to time.

ARTICLE 3. PRESIDENT The President shall be the chief executive officer of the Corporation and shall exercise a general control of and supervision over its affairs. He shall have such other powers and duties as the Board of Directors may determine from time to time.

ARTICLE 4. VICE-PRESIDENT OR VICE-PRESIDENTS The Vice-President or Vice-Presidents shall have such powers and duties as may be determined by the Board of Directors from time to time. In case of the absence, disability, refusal or omission to act of the President, a Vice-President designated by the directors may exercise the powers and perform the duties of the President and, if such Vice-President exercises any of the powers or performs any of the duties of the President, the absence, disability, refusal or omission to act of the President shall be presumed.

ARTICLE 5. TREASURER   AND   ASSISTANT-TREASURERS The Treasurer shall have general charge of the finances of the Corporation. He shall render to the Board of Directors, whenever directed by the Board and as soon as possible after the close of each financial year, an account of the financial condition of the Corporation and of all his transactions as Treasurer. He shall have charge and custody of and be responsible for the keeping of the books of account required under the laws governing the Corporation. He shall perform all the acts incidental to the office of Treasurer or as may be determined by the Board of Directors from time to time.

Assistant-Treasurers shall perform any of the duties of the Treasurer delegated to them from time to time by the Board of Directors or by the Treasurer.

ARTICLE 6. SECRETARY   AND   ASSISTANT-SECRETARIES The Secretary shall attend to the giving of all notices of the Corporation and shall keep the records of all meetings and resolutions of the shareholders and of the Board of Directors in a book to be kept for that purpose. He shall keep in safe custody the seal of the Corporation, if any. He shall have charge of the books containing the names and addresses of the shareholders and directors of the Corporation and such other books and papers as the Board of Directors may direct. He shall perform such other duties incidental to his office or as may be required by the Board of Directors from time to time.

Assistant-Secretaries shall perform any of the duties of the Secretary delegated to them from time to time by the Board of Directors or by the Secretary.

 

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ARTICLE 7. SECRETARY-TREASURER Whenever the Secretary shall also be the Treasurer he may, at the option of the Board of Directors, be designated the “Secretary-Treasurer”.

ARTICLE 8. REMOVAL The Board of Directors may, subject to the law and the provisions of any contract, remove and discharge any officer of the Corporation at any meeting called for that purpose and may elect or appoint any other person.

BY-LAW FOUR

SHARE CAPITAL

ARTICLE 1. SHARE CERTIFICATES Certificates representing shares of the share capital of the Corporation shall be approved by the Board of Directors. Share certificates shall bear the signatures of two directors or two officers of the Corporation or of one director and one officer of the Corporation. Such signatures may be engraved, lithographed or otherwise mechanically reproduced thereon. Any certificate bearing the facsimile reproduction of the signature of any of such authorized persons shall be deemed to have been manually signed by him and shall be as valid to all intents and purposes as if it had been manually signed, notwithstanding that the person whose signature is so reproduced shall, at the time that the certificate is issued or on the date of such certificate, have ceased to be an officer or director of the Corporation, as the case may be.

ARTICLE 2. TRANSFER OF SHARES A register of transfers containing the date and particulars of all transfers of shares of the share capital of the Corporation shall be kept either at the head office or at such other office of the Corporation or at such other place in the Province of Québec or elsewhere in Canada as may be determined, from time to time, by resolution of the Board of Directors. One or more branch registers of transfers may be kept at any office of the Corporation or any other place within the Province of Québec or elsewhere as may from time to time be determined by resolution of the Board of Directors. The date and particulars of all transfers of shares contained in a branch register of transfers must also be entered in the register of transfers. Such register of transfers and branch registers of transfers shall be kept by the Secretary or by such other officer or officers as may be specially charged with this duty or by such agent or agents as may be appointed from time to time for that purpose by resolution of the Board of Directors.

Entry of the transfer of any share of the share capital of the Corporation may be made in the register of transfers or in a branch register of transfers regardless of where the certificate representing the share to be transferred shall have been issued.

 

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If the shares of the share capital of the Corporation to be transferred are represented by a certificate, the transfer of such shares shall not be entered in the register of transfers or the branch register of transfers, unless or until the certificate representing the shares to be transferred has been duly endorsed and surrendered for cancellation.

ARTICLE 3. CLOSING OF BOOKS The Board of Directors may, from time to time, by resolution close the register of transfers and the branch registers of transfers, if any, for any time or times not exceeding in the whole 60 days in each financial year of the Corporation on giving notice by advertisement in a newspaper published in the place where the register of transfers is kept and in a newspaper published in the place where each of the branch registers of transfers is kept. The Board of Directors may by resolution fix in advance a date not exceeding 60 days preceding the date of any meeting of shareholders of the Corporation or the date for the payment of any dividend or the date for the allotment of any rights as a record date for the determination of the shareholders entitled to receive notice of any such meeting or to receive payment of any such dividend or to be allotted any such rights. Only shareholders of record on the record date so fixed shall be entitled to receive such notice or to receive payment of such dividend or to be allotted such rights, as the case may be, notwithstanding any transfer of any shares on the books of the Corporation after such record date.

ARTICLE 4. TRANSFER   AGENTS   AND   REGISTRARS The Board of Directors may appoint or remove from time to time transfer agents or registrars of transfers of shares of the share capital of the Corporation and, subject to the laws governing the Corporation, make regulations generally, from time to time, with reference to the transfer of the shares of the share capital of the Corporation. Upon any such appointment being made, all certificates representing shares of the share capital of the Corporation thereafter issued shall be countersigned by one of such transfer agents or one of such registrars of transfers and shall not be valid unless so countersigned.

BY-LAW FIVE

FINANCIAL YEAR

The financial year of the Corporation shall end on December 31 in each year. Such date may, however, be changed from time to time by resolution of the Board of Directors.

 

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BY-LAW SIX

ARTICLE 1. CONTRACTS All contracts, deeds, agreements, documents, bonds, debentures and other instruments requiring execution by the Corporation may be signed by two directors or two officers of the Corporation or by one director and one officer of the Corporation or by such persons as the Board of Directors may otherwise authorize from time to time by resolution. Any such authorization may be general or confined to specific instances.

ARTICLE 2. CONFLICT OF INTERESTS The Corporation may transact business with one or more of its directors or with any firm of which one or more of its directors are members or employees or with any corporation or association of which one or more of its directors are shareholders, directors, officers or employees. The director who has an interest in such transaction shall disclose it to the Corporation and to the other directors making a decision in respect of such transaction and shall abstain from discussing and voting on the question except if his vote is required to bind the Corporation in respect of such transaction.

BY-LAW SEVEN

DECLARATIONS

Any director or officer of the Corporation or any other person nominated for that purpose by any director or officer of the Corporation is authorized and empowered to give instructions to an attorney, for civil or for criminal, to appear and make answer for and on behalf and in the name of the Corporation to all writs, orders and interrogatories upon articulated facts issued out of any court and to declare for and on behalf and in the name of the Corporation any answer to writs of attachment by way of garnishment in which the Corporation is garnishee. Any director, officer or person so nominated is authorized and empowered to make all affidavits and sworn declarations in connection therewith or in connection with any and all judicial proceedings to which the Corporation is a party and to instruct an attorney to make demands of abandonment or petitions for winding-up or bankruptcy orders upon any debtor of the Corporation and to attend and vote at all meetings of creditors of the Corporation’s debtors and grant proxies in connection therewith. Any such director, officer or person is authorized to appoint by general or special power or powers of attorney any person or persons, including any person other than those directors, officers and persons hereinbefore mentioned, as attorney or attorneys of the Corporation to do any of the foregoing things.

 

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BY-LAW EIGHT

SEAL

The seal of the Corporation, if any, may be affixed by any director or officer of the Corporation or by any person designated by such director or officer.

BY-LAW NINE

REGULATION 45-106

ARTICLE 1. NUMBER OF HOLDERS OF SHARES AND SECURITIES The beneficial ownership of securities of the Corporation, including its shareholders, shall be limited to fifty (50) persons, not including employees and former employees of the Corporation or its affiliates, provided that each person is counted as one beneficial owner unless the person is created or used solely to purchase or hold securities of the Corporation in which case each beneficial owner or each beneficiary of the person, as the case may be, must be counted as a separate beneficial owner

ARTICLE 2. ISSUE OF SECURITIES The directors, by way of resolution, may accept subscriptions for securities, allot or issue securities of the Company at such times, on such terms and conditions, to such persons and for such consideration as they see fit.

ARTICLE 3. PRIVATE ISSUER STATUS The directors shall use their best efforts to ensure that the Corporation remains a private issuer and complies with the provisions of the Regulation 45-106 .

ARTICLE 4. DECLARATION OF SUBSCRIBER Any person who subscribes shares or other securities issued by the Corporation shall declare to the Corporation that this subscription is exempted from prospectus and registration requirements pursuant to section 2.4 of the Regulation 45-106

ARTICLE 5. DECLARATION OF TRANSFEREE Any person who purchases shares or other securities of the Corporation shall declare that his acquisition is exempted from prospectus and registration requirements pursuant to the Regulation 45-106 .

ARTICLE 6. COMMISSION No commission or other remuneration, including a finder’s fee, shall be paid in connection with the sale of shares or other securities to a director, executive officer, control person or founder of the Corporation or of an affiliate of the Company.

 

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ADOPTED on March 11, 2015.
The President,

/s/ Manon Brouillette

Manon Brouillette
The Corporate Secretary

/s/ Marc M. Tremblay

Marc M. Tremblay

 

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BY-LAW TEN

BORROWING POWERS

The administrators of the Corporation are hereby authorized, when to their best judgment, it is in the best interest of the Corporation to:

 

  (a) borrow money on the credit of the Corporation from any bank, corporation, firm, association or individual, in the amount and in the conditions the Board of directors sees fit, and in the best interest of the Corporation;

 

  (b) increase or decrease the amount to be borrowed;

 

  (c) issue or have issued, sell or pledge bonds, debentures, notes or other debt obligations of the Corporation as by the terms, agreements and conditions and for the sums as seen fit by the Board of directors;

 

  (d) hypothecate movable and immovable property of the Corporation currently owned or subsequently acquired to secure payment or performance of an obligation or other debt obligations of the Corporation;

 

  (e) mortgage, hypothecate, charge, pledge or otherwise create a security interest in all or any currently owned or subsequently acquired movable and immovable property of the Corporation to secure such bonds, debentures, notes or other debt obligations, other than those contracted by the issuing of bonds or other securities;

 

  (f) provide a guarantee on behalf of the Corporation to secure payment of all debt obligations such as borrowed monies, debentures, notes, credits, overdraft advances, or other debts in favour of a bank, corporation, firm or person, including interest, hypothecate and provide to any bank, corporation, firm or any individual, all or any one of the Corporation property, movable or immovable, currently owned or subsequently acquired and provide guarantees that may be accepted by a bank in virtue of the different sections of the Bank Act, renew, modify or substitute such guarantees from time to time, with the authority to contract promises, to provide guarantees in virtue of the Bank Act related to any current debt or subsequently contracted by the Corporation with any bank;

 

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  (g) the Board of directors may from time to time, by resolution, delegate to any one or more directors or officers all or any of the powers conferred on the directors by paragraph 1 of this by-law to the full extent thereof or such lesser extent as the directors may in any such resolution provide;

AND the powers hereby conferred shall be deemed to be permanent and not subject to cease after the first exercise. Such powers can be used from time to time as long as they are not revoked by a written resolution.

 

ADOPTED on March 11, 2015.  
The President,  

/s/ Manon Brouillette

 
Manon Brouillette  
The Corporate Secretary  

/s/ Marc M. Tremblay

 
Marc M. Tremblay  

 

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Exhibit 1.26

 

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[Translation]

SCHEDULE A

SHARE CAPITAL

The unlimited share capital of the Corporation shall consist of seven (7) classes of shares, which shall carry the following rights:

(A) CLASS “A” COMMON SHARES: The number of Class “A” Shares is unlimited, and the consideration paid into the subdivision of the issued and paid-up share capital account relating to such shares is also unlimited; Class “A” Shares shall have no par value and shall carry the following rights, privileges, conditions and restrictions:

(1) Dividend and Participation. Subject to the rights and privileges conferred by the other classes of shares, the holders of Class “A” Shares shall be entitled to:

 

  (a) participate in the property, profits and surplus assets of the Corporation and, to that end, receive any dividend declared by the Corporation, the amount, timing and terms of payment of which are at the sole discretion of the Board of Directors; and

 

  (b) share in the remaining property of the Corporation upon liquidation or winding-up, whether or not voluntary, dissolution or any other distribution of the property of the Corporation.

(2) Restriction. In addition to the restrictions set forth in the Canada Business Corporations Act , the Corporation may neither pay a dividend on Class “A” Shares nor purchase any such shares by private agreement if, as a result thereof, the book value of the net assets of the Corporation would be insufficient to redeem the Class “B,” “C,” “D,” “E,” “F” and “G” Shares.

(3) Voting Right. The holders of Class “A” Shares shall be entitled to receive notice of, attend and vote at meetings of shareholders of the Corporation, except meetings at which only the holders of another class of shares are entitled to vote, and each Class “A” Share shall entitle the holder thereof to one (1) vote.

(B) CLASS “B” PREFERRED SHARES: The number of Class “B” Shares is unlimited, and the consideration paid into the subdivision of the issued and paid-up share capital account relating to such shares is also unlimited; Class “B” Shares shall have no par value and shall carry the following rights, privileges, conditions and restrictions:

(1) Ranking of Class “B” Preferred Shares. Class “B” Preferred Shares shall have priority over the Common Shares and the Class “C,” “D,” “E,” and “F” Preferred Shares, but not over the Class “G” Preferred Shares with respect to the order of payment of dividends and the distribution of the assets of the Corporation in the event of the liquidation, winding-up or dissolution of the Corporation, whether or not voluntary, or any other distribution of the assets of the Corporation among its shareholders for the purpose of winding up its affairs.

 

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(2) Right to Dividends. The holders of Class “B” Shares shall be entitled to receive, every year, in such manner and at such time as the Board of Directors may declare, a non-cumulative dividend at the fixed rate of 1% per month, calculated on the redemption price of the Class “B” Preferred Shares, payable in cash, property or through the issuance of fully paid shares of any class of the Corporation.

(3) Repayment. If, for any reason, including in the event of dissolution or liquidation or winding-up of the Corporation, whether or not voluntary, some or all of the assets of the Corporation are distributed among the shareholders, each holder of Class “B” Shares shall be entitled to repayment of the amount paid for the Class “B” Shares into the subdivision of the issued and paid-up share capital account relating to the Class “B” Shares.

(4) No Voting Right. Subject to the provisions of the Act or as otherwise expressly provided, the holders of Class “B” Shares shall not be entitled to receive notice of, attend or vote at the meeting of shareholders of the Corporation.

(5) Redemption Right. The Corporation shall be entitled, at its discretion, subject to the provisions of the Canada Business Corporations Act in this regard, to redeem at any time all or from time to time part of the Class “B” Shares then outstanding upon giving notice to that effect, on payment to the holders of the Class “B” Shares of an aggregate redemption price equal to the consideration received by the Corporation at the time the Class “B” Shares were issued.

The Corporation shall, at least one (1) business day prior to the date fixed for redemption (the “Redemption Date”), give written notice, to each then registered holder of Class “B” Shares, of the Corporation’s intention to redeem such shares. Such notice shall set out the date and place at which the redemption is to take place and where payment is to occur and, in the case of partial redemption, the number of shares of each such holder of Class “B” Shares to be redeemed. If notice of redemption is given as aforesaid and an amount sufficient to redeem the Class “B” Shares called for redemption is deposited with the Corporation’s bankers or at any other place specified in the notice, on or before the Redemption Date, the holders of Class “B” Shares shall, after the Redemption Date, no longer have any right in or against the Corporation, except the right to receive payment of the Redemption Price and any accrued but unpaid dividends on such Class “B” Shares being redeemed, upon presentation and surrender of the certificates representing such number of shares to be redeemed.

(6) Retraction Right. Subject to paragraph two of Section 35 of the Canada Business Corporations Act , each holder of Class “B” Shares shall be entitled, at any time and at such holder’s discretion, upon written notice, to require the Corporation to redeem all or part of such holder’s shares at a price equal to the “Redemption Value,” as described below, plus the amount of dividends declared but unpaid, if any, on the Class “B” Shares.

 

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(a) Redemption Value

The “Redemption Value” of each share corresponds to the amount paid for such share into the subdivision of the issued and paid-up share capital account relating to the Class “B” Shares, plus a premium equal to the amount by which the fair market value of the consideration received by the Corporation at the time such Class “B” Share was issued exceeds the total of:

(i) the amount paid for such share into the subdivision of the issued and paid-up share capital account relating to the Class “B” Shares; and

(ii) the fair market value of any property, other than a Class “B” Share, given by the Corporation in payment of such consideration.

(b) Determination of Fair Market Value of the Consideration

Upon issuance of the Class “B” Shares, the Corporation and each subscriber of Class “B” Shares shall determine, by mutual consent and in good faith, based on a method deemed fair and reasonable, the fair market value of each of the assets that form part of the consideration received by the Corporation at the time the Class “B” Shares are issued.

(c) Adjustment of the Premium in Case of a Disagreement with the Department of Revenue

In the event of a disagreement with the federal or provincial department of revenue, or both, with respect to the appraisal of the fair market value of one or more of the assets that form part of the consideration received by the Corporation at the time the Class “B” Shares are issued, the appraisal by such department shall prevail. The amount of the premium relating to the redemption of the Class “B” Shares shall be adjusted accordingly if the department in question provides the Corporation and each holder of Class “B” Shares, or, where all of the shares are redeemed, the Corporation and each former holder of Class “B” Shares, with the opportunity to contest the appraisal with the department or before the courts. Where the federal and provincial appraisals differ, the amount of the premium shall be equal to the lower appraisal established in accordance with an uncontested assessment or another final judgment, as the case may be.

If, before the Redemption Value provided for in the foregoing sentence is adjusted, the Corporation pays, in cash or any other form of consideration, to a holder of Class “B” Shares, in connection with a redemption, retraction or purchase of Class “B” Shares, a sum for the Class “B” Shares that differs from the adjusted Redemption Value, the holder or the Corporation, as the case may be, shall immediately pay to the holder or the Corporation, as the case may be, the difference between the amount paid in connection with the redemption, retraction or purchase and the adjusted Redemption Value. Moreover, if, at the time of the adjustment, dividends have already been declared and paid on the Class “B” Shares, such dividends shall be adjusted so as to reflect the adjustment of the Redemption Value.

 

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(7) Right to Purchase by Private Agreement . Subject to the Canada Business Corporations Act , the Corporation may, at any time, without giving notice and without taking into consideration the other classes of shares, purchase by private agreement and at the best possible price all or part of the issued and outstanding Class “B” Shares. However, such purchase price shall never exceed the Redemption Value mentioned above or the book value of the net assets of the Corporation.

(C) CLASS “C” PREFERRED SHARES: The number of Class “C” Shares is unlimited, and the consideration paid into the subdivision of the issued and paid-up share capital account relating to such shares is also unlimited; Class “C” Shares shall have no par value and shall carry the following rights, privileges, conditions and restrictions:

(1) Ranking of Class “C” Preferred Shares. Class “C” Preferred Shares shall have priority over the Common Shares and the Class “D,” “E” and “F” Preferred Shares, but not over the Class “B” and “G” Preferred Shares with respect to the order of payment of dividends and the distribution of the assets of the Corporation in the event of the liquidation, winding-up or dissolution of the Corporation, whether or not voluntary, or any other distribution of the assets of the Corporation among its shareholders for the purpose of winding up its affairs.

(2) Right to Dividends. The holders of Class “C” Shares shall be entitled to receive, every year, in such manner and at such time as the Board of Directors may declare, a non-cumulative dividend at the fixed rate of 1% per month, calculated on the redemption price of the Class “C” Preferred Shares, payable in cash, property or through the issuance of fully paid shares of any class of the Corporation.

(3) Repayment. If, for any reason, including in the event of dissolution or liquidation or winding-up of the Corporation, whether or not voluntary, some or all of the assets of the Corporation are distributed among the shareholders, each holder of Class “C” Shares shall be entitled to repayment of the amount paid for the Class “C” Shares into the subdivision of the issued and paid-up share capital account relating to the Class “C” Shares.

(4) No Voting Right. Subject to the provisions of the Act or as otherwise expressly provided, the holders of Class “C” Shares shall not be entitled to receive notice of, attend or vote at the meeting of shareholders of the Corporation.

(5) Redemption Right. The Corporation shall be entitled, at its discretion, subject to the provisions of the Canada Business Corporations Act in this regard, to redeem at any time all or from time to time part of the Class “C” Shares then outstanding upon giving notice to that effect, on payment to the holders of the Class “C” Shares of an aggregate redemption price equal to the consideration received by the Corporation at the time the Class “C” Shares were issued.

The Corporation shall, at least one (1) business day prior to the date fixed for redemption (the “Redemption Date”), give written notice, to each then registered holder of Class “C” Shares, of the Corporation’s intention to redeem such shares. Such

 

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notice shall set out the date and place at which the redemption is to take place and where payment is to occur and, in the case of partial redemption, the number of shares of each such holder of Class “C” Shares to be redeemed. If notice of redemption is given as aforesaid and an amount sufficient to redeem the Class “C” Shares called for redemption is deposited with the Corporation’s bankers or at any other place specified in the notice, on or before the Redemption Date, the holders of Class “C” Shares shall, after the Redemption Date, no longer have any right in or against the Corporation, except the right to receive payment of the Redemption Price and any accrued but unpaid dividends on such Class “C” Shares being redeemed, upon presentation and surrender of the certificates representing such number of shares to be redeemed.

(6) Retraction Right. Subject to paragraph two of Section 36(2)(b) of the Canada Business Corporations Act , each holder of Class “C” Shares shall be entitled, at any time and at such holder’s discretion, upon written notice, to require the Corporation to redeem all or part of such holder’s shares at a price equal to the “Redemption Value,” as described below, plus the amount of dividends declared but unpaid, if any, on the Class “C” Shares.

(a) Redemption Value

The “Redemption Value” of each share corresponds to the amount paid for such share into the subdivision of the issued and paid-up share capital account relating to the Class “C” Shares, plus a premium equal to the amount by which the fair market value of the consideration received by the Corporation at the time such Class “C” Share was issued exceeds the total of:

(i) the amount paid for such share into the subdivision of the issued and paid-up share capital account relating to the Class “C” Shares; and

(ii) the fair market value of any property, other than a Class “C” Share, given by the Corporation in payment of such consideration.

(b) Determination of Fair Market Value of the Consideration

Upon issuance of the Class “C” Shares, the Corporation and each subscriber of Class “C” Shares shall determine, by mutual consent and in good faith, based on a method deemed fair and reasonable, the fair market value of each of the assets that form part of the consideration received by the Corporation at the time the Class “C” Shares are issued.

(c) Adjustment of the Premium in Case of a Disagreement with the Department of Revenue

In the event of a disagreement with the federal or provincial department of revenue, or both, with respect to the appraisal of the fair market value of one or more of the assets that form part of the consideration received by the Corporation at the time the Class “C” Shares are issued, the appraisal by such department shall prevail. The amount of the premium relating to the redemption of the Class “C” Shares shall be adjusted accordingly if the department in question provides the Corporation and

 

6


each holder of Class “C” Shares, or, where all of the shares are redeemed, the Corporation and each former holder of Class “C” Shares, with the opportunity to contest the appraisal with the department or before the courts. Where the federal and provincial appraisals differ, the amount of the premium shall be equal to the lower appraisal established in accordance with an uncontested assessment or another final judgment, as the case may be.

If, before the Redemption Value provided for in the foregoing sentence is adjusted, the Corporation pays, in cash or any other form of consideration, to a holder of Class “C” Shares, in connection with a redemption, retraction or purchase of Class “C” Shares, a sum for the Class “C” Shares that differs from the adjusted Redemption Value, the holder or the Corporation, as the case may be, shall immediately pay to the holder or the Corporation, as the case may be, the difference between the amount paid in connection with the redemption, retraction or purchase and the adjusted Redemption Value. Moreover, if, at the time of the adjustment, dividends have already been declared and paid on the Class “C” Shares, such dividends shall be adjusted so as to reflect the adjustment of the Redemption Value.

(7) Right to Purchase by Private Agreement. Subject to the Canada Business Corporations Act, the Corporation may, at any time, without giving notice and without taking into consideration the other classes of shares, purchase by private agreement and at the best possible price all or part of the issued and outstanding Class “C” Shares. However, such purchase price shall never exceed the Redemption Value mentioned above or the book value of the net assets of the Corporation.

(D) CLASS “D” PREFERRED SHARES: The number of Class “D” Shares is unlimited, and the consideration paid into the subdivision of the issued and paid-up share capital account relating to such shares is also unlimited; Class “D” Shares shall have no par value and shall carry the following rights, privileges, conditions and restrictions:

(1) Ranking of Class “D” Preferred Shares. Class “D” Preferred Shares shall have priority over the Common Shares and the Class “E” and “F” Preferred Shares, but not over the Class “B,” “C” and “G” Preferred Shares with respect to the order of payment of dividends and the distribution of the assets of the Corporation in the event of the liquidation, winding-up or dissolution of the Corporation, whether or not voluntary, or any other distribution of the assets of the Corporation among its shareholders for the purpose of winding up its affairs.

(2) Right to Dividends. The holders of Class “D” Shares shall be entitled to receive, every year, in such manner and at such time as the Board of Directors may declare, a non-cumulative dividend at the fixed rate of 1% per month, calculated on the redemption price of the Class “D” Preferred Shares, payable in cash, property or through the issuance of fully paid shares of any class of the Corporation.

(3) Repayment. If, for any reason, including in the event of dissolution or liquidation or winding-up of the Corporation, whether or not voluntary, some or all of the assets of the Corporation are distributed among the shareholders, each

 

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holder of Class “D” Shares shall be entitled to repayment of the amount paid for the Class “D” Shares into the subdivision of the issued and paid-up share capital account relating to the Class “D” Shares.

(4) No Voting Right. Subject to the provisions of the Act or as otherwise expressly provided, the holders of Class “D” Shares shall not be entitled to receive notice of, attend or vote at the meeting of shareholders of the Corporation.

(5) Redemption Right. The Corporation shall be entitled, at its discretion, subject to the provisions of the Canada Business Corporations Act in this regard, to redeem at any time all or from time to time part of the Class “D” Shares then outstanding upon giving notice to that effect, on payment to the holders of the Class “D” Shares of an aggregate redemption price equal to the consideration received by the Corporation at the time the Class “D” Shares were issued.

The Corporation shall, at least one (1) business day prior to the date fixed for redemption (the “Redemption Date”), give written notice, to each then registered holder of Class “D” Shares, of the Corporation’s intention to redeem such shares. Such notice shall set out the date and place at which the redemption is to take place and where payment is to occur and, in the case of partial redemption, the number of shares of each such holder of Class “D” Shares to be redeemed. If notice of redemption is given as aforesaid and an amount sufficient to redeem the Class “D” Shares called for redemption is deposited with the Corporation’s bankers or at any other place specified in the notice, on or before the Redemption Date, the holders of Class “D” Shares shall, after the Redemption Date, no longer have any right in or against the Corporation, except the right to receive payment of the Redemption Price and any accrued but unpaid dividends on such Class “D” Shares being redeemed, upon presentation and surrender of the certificates representing such number of shares to be redeemed.

(6) Retraction Right. Subject to paragraph two of Section 36(2)(b) of the Canada Business Corporations Act , each holder of Class “D” Shares shall be entitled, at any time and at such holder’s discretion, upon written notice, to require the Corporation to redeem all or part of such holder’s shares at a price equal to the “Redemption Value,” as described below, plus the amount of dividends declared but unpaid, if any, on the Class “D” Shares.

(a) Redemption Value

The “Redemption Value” of each share corresponds to the amount paid for such share into the subdivision of the issued and paid-up share capital account relating to the Class “D” Shares, plus a premium equal to the amount by which the fair market value of the consideration received by the Corporation at the time such Class “D” Share was issued exceeds the total of:

(i) the amount paid for such share into the subdivision of the issued and paid-up share capital account relating to the Class “D” Shares; and

 

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(ii) the fair market value of any property, other than a Class “D” Share, given by the Corporation in payment of such consideration.

(b) Determination of Fair Market Value of the Consideration

Upon issuance of the Class “D” Shares, the Corporation and each subscriber of Class “D” Shares shall determine, by mutual consent and in good faith, based on a method deemed fair and reasonable, the fair market value of each of the assets that form part of the consideration received by the Corporation at the time the Class “D” Shares are issued.

(c) Adjustment of the Premium in Case of a Disagreement with the Department of Revenue

In the event of a disagreement with the federal or provincial department of revenue, or both, with respect to the appraisal of the fair market value of one or more of the assets that form part of the consideration received by the Corporation at the time the Class “D” Shares are issued, the appraisal by such department shall prevail. The amount of the premium relating to the redemption of the Class “D” Shares shall be adjusted accordingly if the department in question provides the Corporation and each holder of Class “D” Shares, or, where all of the shares are redeemed, the Corporation and each former holder of Class “D” Shares, with the opportunity to contest the appraisal with the department or before the courts. Where the federal and provincial appraisals differ, the amount of the premium shall be equal to the lower appraisal established in accordance with an uncontested assessment or another final judgment, as the case may be.

If, before the Redemption Value provided for in the foregoing sentence is adjusted, the Corporation pays, in cash or any other form of consideration, to a holder of Class “D” Shares, in connection with a redemption, retraction or purchase of Class “D” Shares, a sum for the Class “D” Shares that differs from the adjusted Redemption Value, the holder or the Corporation, as the case may be, shall immediately pay to the holder or the Corporation, as the case may be, the difference between the amount paid in connection with the redemption, retraction or purchase and the adjusted Redemption Value. Moreover, if, at the time of the adjustment, dividends have already been declared and paid on the Class “D” Shares, such dividends shall be adjusted so as to reflect the adjustment of the Redemption Value.

(7) Right to Purchase by Private Agreement. Subject to the Canada Business Corporations Act , the Corporation may, at any time, without giving notice and without taking into consideration the other classes of shares, purchase by private agreement and at the best possible price all or part of the issued and outstanding Class “D” Shares. However, such purchase price shall never exceed the Redemption Value mentioned above or the book value of the net assets of the Corporation.

 

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(E) CLASS “E” PREFERRED SHARES: The number of Class “E” Shares is unlimited, and the consideration paid into the subdivision of the issued and paid-up share capital account relating to such shares is also unlimited; Class “E” Shares shall have no par value and shall carry the following rights, privileges, conditions and restrictions:

(1) Ranking of Class “E” Preferred Shares. Class “E” Preferred Shares shall have priority over the Common Shares and the Class “F” Preferred Shares, but not over the Class “B,” “C,” “D” and “G” Preferred Shares with respect to the order of payment of dividends and the distribution of the assets of the Corporation in the event of the liquidation, winding-up or dissolution of the Corporation, whether or not voluntary, or any other distribution of the assets of the Corporation among its shareholders for the purpose of winding up its affairs.

(2) Right to Dividends. The holders of Class “E” Shares shall be entitled to receive, every year, in such manner and at such time as the Board of Directors may declare, a non-cumulative dividend at the fixed rate of 1% per month, calculated on the redemption price of the Class “E” Preferred Shares, payable in cash, property or through the issuance of fully paid shares of any class of the Corporation.

(3) Repayment. If, for any reason, including in the event of dissolution or liquidation or winding-up of the Corporation, whether or not voluntary, some or all of the assets of the Corporation are distributed among the shareholders, each holder of Class “E” Shares shall be entitled to repayment of the amount paid for the Class “E” Shares into the subdivision of the issued and paid-up share capital account relating to the Class “E” Shares.

(4) No Voting Right. Subject to the provisions of the Act or as otherwise expressly provided, the holders of Class “E” Shares shall not be entitled to receive notice of, attend or vote at the meeting of shareholders of the Corporation.

(5) Redemption Right. The Corporation shall be entitled, at its discretion, subject to the provisions of the Canada Business Corporations Act in this regard, to redeem at any time all or from time to time part of the Class “E” Shares then outstanding upon giving notice to that effect, on payment to the holders of the Class “E” Shares of an aggregate redemption price equal to the consideration received by the Corporation at the time the Class “E” Shares were issued.

The Corporation shall, at least one (1) business day prior to the date fixed for redemption (the “Redemption Date”), give written notice, to each then registered holder of Class “E” Shares, of the Corporation’s intention to redeem such shares. Such notice shall set out the date and place at which the redemption is to take place and where payment is to occur and, in the case of partial redemption, the number of shares of each such holder of Class “E” Shares to be redeemed. If notice of redemption is given as aforesaid and an amount sufficient to redeem the Class “E” Shares called for redemption is deposited with the Corporation’s bankers or at any other place specified in the notice, on or before the Redemption Date, the holders of Class “E” Shares shall, after the Redemption Date, no longer

 

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have any right in or against the Corporation, except the right to receive payment of the Redemption Price and any accrued but unpaid dividends on such Class “E” Shares being redeemed, upon presentation and surrender of the certificates representing such number of shares to be redeemed.

(6) Retraction Right. Subject to paragraph two of Section 36(2)(b) of the Canada Business Corporations Act , each holder of Class “E” Shares shall be entitled, at any time and at such holder’s discretion, upon written notice, to require the Corporation to redeem all or part of such holder’s shares at a price equal to the “Redemption Value,” as described below, plus the amount of dividends declared but unpaid, if any, on the Class “E” Shares.

(a) Redemption Value

The “Redemption Value” of each share corresponds to the amount paid for such share into the subdivision of the issued and paid-up share capital account relating to the Class “E” Shares, plus a premium equal to the amount by which the fair market value of the consideration received by the Corporation at the time such Class “E” Share was issued exceeds the total of:

(i) the amount paid for such share into the subdivision of the issued and paid-up share capital account relating to the Class “E” Shares; and

(ii) the fair market value of any property, other than a Class “E” Share, given by the Corporation in payment of such consideration.

(b) Determination of Fair Market Value of the Consideration

Upon issuance of the Class “E” Shares, the Corporation and each subscriber of Class “E” Shares shall determine, by mutual consent and in good faith, based on a method deemed fair and reasonable, the fair market value of each of the assets that form part of the consideration received by the Corporation at the time the Class “E” Shares are issued.

(c) Adjustment of the Premium in Case of a Disagreement with the Department of Revenue

In the event of a disagreement with the federal or provincial department of revenue, or both, with respect to the appraisal of the fair market value of one or more of the assets that form part of the consideration received by the Corporation at the time the Class “E” Shares are issued, the appraisal by such department shall prevail. The amount of the premium relating to the redemption of the Class “E” Shares shall be adjusted accordingly if the department in question provides the Corporation and each holder of Class “E” Shares, or, where all of the shares are redeemed, the Corporation and each former holder of Class “E” Shares, with the opportunity to contest the appraisal with the department or before the courts. Where the federal and provincial appraisals differ, the amount of the premium shall be equal to the lower appraisal established in accordance with an uncontested assessment or another final judgment, as the case may be.

 

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If, before the Redemption Value provided for in the foregoing sentence is adjusted, the Corporation pays, in cash or any other form of consideration, to a holder of Class “E” Shares, in connection with a redemption, retraction or purchase of Class “E” Shares, a sum for the Class “E” Shares that differs from the adjusted Redemption Value, the holder or the Corporation, as the case may be, shall immediately pay to the holder or the Corporation, as the case may be, the difference between the amount paid in connection with the redemption, retraction or purchase and the adjusted Redemption Value. Moreover, if, at the time of the adjustment, dividends have already been declared and paid on the Class “E” Shares, such dividends shall be adjusted so as to reflect the adjustment of the Redemption Value.

(7) Right to Purchase by Private Agreement. Subject to the Canada Business Corporations Act , the Corporation may, at any time, without giving notice and without taking into consideration the other classes of shares, purchase by private agreement and at the best possible price all or part of the issued and outstanding Class “E” Shares. However, such purchase price shall never exceed the Redemption Value mentioned above or the book value of the net assets of the Corporation.

(F) CLASS “F” PREFERRED SHARES: The number of Class “F” Shares is unlimited, and the consideration paid into the subdivision of the issued and paid-up share capital account relating to such shares is also unlimited; Class “F” Shares shall have no par value and shall carry the following rights, privileges, conditions and restrictions:

(1) Ranking of Class “F” Preferred Shares. Class “F” Preferred Shares shall have priority over the Common Shares, but not over the Class “B,” “C,” “D,” “E” and “G” Preferred Shares with respect to the order of payment of dividends and the distribution of the assets of the Corporation in the event of the liquidation, winding-up or dissolution of the Corporation, whether or not voluntary, or any other distribution of the assets of the Corporation among its shareholders for the purpose of winding up its affairs.

(2) Right to Dividends. The holders of Class “F” Shares shall be entitled to receive, every year, in such manner and at such time as the Board of Directors may declare, a non-cumulative dividend at the fixed rate of 1% per month, calculated on the redemption price of the Class “F” Preferred Shares, payable in cash, property or through the issuance of fully paid shares of any class of the Corporation.

(3) Repayment. If, for any reason, including in the event of dissolution or liquidation or winding-up of the Corporation, whether or not voluntary, some or all of the assets of the Corporation are distributed among the shareholders, each holder of Class “F” Shares shall be entitled to repayment of the amount paid for the Class “F” Shares into the subdivision of the issued and paid-up share capital account relating to the Class “F” Shares.

 

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(4) No Voting Right. Subject to the provisions of the Act or as otherwise expressly provided, the holders of Class “F” Shares shall not be entitled to receive notice of, attend or vote at the meeting of shareholders of the Corporation.

(5) Redemption Right. The Corporation shall be entitled, at its discretion, subject to the provisions of the Canada Business Corporations Act in this regard, to redeem at any time all or from time to time part of the Class “F” Shares then outstanding upon giving notice to that effect, on payment to the holders of the Class “F” Shares of an aggregate redemption price equal to the consideration received by the Corporation at the time the Class “F” Shares were issued.

The Corporation shall, at least one (1) business day prior to the date fixed for redemption (the “Redemption Date”), give written notice, to each then registered holder of Class “F” Shares, of the Corporation’s intention to redeem such shares. Such notice shall set out the date and place at which the redemption is to take place and where payment is to occur and, in the case of partial redemption, the number of shares of each such holder of Class “F” Shares to be redeemed. If notice of redemption is given as aforesaid and an amount sufficient to redeem the Class “F” Shares called for redemption is deposited with the Corporation’s bankers or at any other place specified in the notice, on or before the Redemption Date, the holders of Class “F” Shares shall, after the Redemption Date, no longer have any right in or against the Corporation, except the right to receive payment of the Redemption Price and any accrued but unpaid dividends on such Class “F” Shares being redeemed, upon presentation and surrender of the certificates representing such number of shares to be redeemed.

(6) Retraction Right. Subject to paragraph two of Section 36(2)(b) of the Canada Business Corporations Act , each holder of Class “F” Shares shall be entitled, at any time and at such holder’s discretion, upon written notice, to require the Corporation to redeem all or part of such holder’s shares at a price equal to the “Redemption Value,” as described below, plus the amount of dividends declared but unpaid, if any, on the Class “F” Shares.

(a) Redemption Value

The “Redemption Value” of each share corresponds to the amount paid for such share into the subdivision of the issued and paid-up share capital account relating to the Class “F” Shares, plus a premium equal to the amount by which the fair market value of the consideration received by the Corporation at the time such Class “F” Share was issued exceeds the total of:

(i) the amount paid for such share into the subdivision of the issued and paid-up share capital account relating to the Class “F” Shares; and

 

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(ii) the fair market value of any property, other than a Class “F” Share, given by the Corporation in payment of such consideration.

(b) Determination of Fair Market Value of the Consideration

Upon issuance of the Class “F” Shares, the Corporation and each subscriber of Class “F” Shares shall determine, by mutual consent and in good faith, based on a method deemed fair and reasonable, the fair market value of each of the assets that form part of the consideration received by the Corporation at the time the Class “F” Shares are issued.

(c) Adjustment of the Premium in Case of a Disagreement with the Department of Revenue

In the event of a disagreement with the federal or provincial department of revenue, or both, with respect to the appraisal of the fair market value of one or more of the assets that form part of the consideration received by the Corporation at the time the Class “F” Shares are issued, the appraisal by such department shall prevail. The amount of the premium relating to the redemption of the Class “F” Shares shall be adjusted accordingly if the department in question provides the Corporation and each holder of Class “F” Shares, or, where all of the shares are redeemed, the Corporation and each former holder of Class “F” Shares, with the opportunity to contest the appraisal with the department or before the courts. Where the federal and provincial appraisals differ, the amount of the premium shall be equal to the lower appraisal established in accordance with an uncontested assessment or another final judgment, as the case may be.

If, before the Redemption Value provided for in the foregoing sentence is adjusted, the Corporation pays, in cash or any other form of consideration, to a holder of Class “F” Shares, in connection with a redemption, retraction or purchase of Class “F” Shares, a sum for the Class “F” Shares that differs from the adjusted Redemption Value, the holder or the Corporation, as the case may be, shall immediately pay to the holder or the Corporation, as the case may be, the difference between the amount paid in connection with the redemption, retraction or purchase and the adjusted Redemption Value. Moreover, if, at the time of the adjustment, dividends have already been declared and paid on the Class “F” Shares, such dividends shall be adjusted so as to reflect the adjustment of the Redemption Value.

(7) Right to Purchase by Private Agreement. Subject to the Canada Business Corporations Act , the Corporation may, at any time, without giving notice and without taking into consideration the other classes of shares, purchase by private agreement and at the best possible price all or part of the issued and outstanding Class “F” Shares. However, such purchase price shall never exceed the Redemption Value mentioned above or the book value of the net assets of the Corporation.

 

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(G) CLASS “G” PREFERRED SHARES

The number of Class “G” Shares is unlimited, and the consideration paid into the subdivision of the issued and paid-up share capital account relating to such shares is also unlimited. Class “G” Shares shall have no par value and shall carry the following rights, privileges, conditions and restrictions:

(1) Ranking of Class “G” Preferred Shares. Class “G” Preferred Shares shall have priority over the Common Shares and the other shares of the Corporation with respect to the order of payment of dividends and the distribution of the assets of the Corporation in the event of the liquidation or dissolution of the Corporation, whether or not voluntary, or any other distribution of the assets of the Corporation among its shareholders for the purpose of winding up its affairs.

(2) Right to Dividends . The holders of record of the Class “G” Shares shall be entitled to receive, in each fiscal year of the Corporation, a fixed cumulative preferential dividend at the rate of 11.25% per annum per share, calculated daily on the Redemption Price (as defined below) of the Class “G” Shares. Such dividends shall be cumulative from the respective date of issue of each Class “G” Share.

For greater certainty, it is hereby declared that (a) wherever it is used in this Section 2, the expression “dividend at the rate of 11.25% per annum per share” shall mean, with respect to the Class “G” Shares, a dividend calculated at such rate for at least the number of days during which such share was outstanding in the fiscal year with respect to which the calculation is being made and (b) nothing herein contained or implied shall require prorating of dividends with respect to any share not outstanding during the entire period for or with respect to which such dividends are accrued. However, the directors of the Corporation may, at their discretion, prorate dividends with respect to any share not outstanding for the entire period for or with respect to which dividends are accrued if such right to prorate dividends was reserved by the Corporation at the time such shares were issued.

All dividends declared on the Class “G” Shares shall be payable semi-annually on a cumulative basis on the 20th day of the months of June and December in every year, at such place as the directors of the Corporation may determine, in cash or by certified cheque, bank draft or wire transfer, provided that, in respect of any payment of dividends denominated in a currency other than Canadian dollars, the applicable exchange rate shall be that published by the Bank of Canada in effect on the date of payment.

The holders of Class “G” Shares shall be entitled to receive only the aforementioned dividends. No dividends may be paid on any shares ranking junior to the Class “G” Shares, unless all dividends that have become payable on the Class “G” Shares have been paid or set aside for payment.

(3) Liquidation or Winding-Up . In the event of the liquidation, winding-up, dissolution or reorganization of the Corporation or any other distribution of its assets among its shareholders for the purpose of winding up its affairs, whether voluntarily or

 

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involuntarily, the holders of Class “G” Shares shall be entitled to receive, in preference to the holders of any other class of shares of the Corporation, an amount equal to the Redemption Price (as defined below) for each Class “G” Share held and any accrued but unpaid dividends on such shares.

(4) No Voting Right . The holders of Class “G” Shares shall not be entitled to receive notice of, attend or vote at the meetings of shareholders of the Corporation, unless the Corporation has failed to pay eight (8) semi-annual dividends on the Class “G” Shares, whether or not consecutive. In that event and only so long as the said dividends remain in arrears, the holders of Class “G” Shares shall be entitled to receive notice of, attend and vote at the meetings of shareholders of the Corporation, except meetings at which only the holders of another specified series or class of shares are entitled to vote. At each such meeting, each Class “G” Share shall entitle the holder thereof to one (1) vote.

(5) Redemption Right . The Corporation shall be entitled, at its discretion, subject to the provisions of the Act in this regard, to redeem at any time all or part of the Class “G” Shares then outstanding upon giving notice as hereinafter provided, on payment to the holders of the Class “G” Shares of an aggregate amount equal to the Redemption Price (as defined below) and any accrued but unpaid dividends on such Class “G” Shares being redeemed. In the case of partial redemption, the Class “G” Shares to be redeemed shall be selected pro rata among the holders of all Class “G” Shares then outstanding, except that, with the consent of all the holders of Class “G” Shares, the shares to be redeemed may be selected in another manner.

The Corporation shall, at least one (1) business day prior to the date fixed for redemption (the “Redemption Date”), give written notice, to each then registered holder of Class “G” Shares, of the Corporation’s intention to redeem such shares. Such notice shall set out the date and the place at which the redemption is to take place and where payment is to occur and, in the case of partial redemption, the number of shares to be redeemed from each such holder of Class “G” Shares. If notice of redemption is given as aforesaid and an amount sufficient to redeem the Class “G” Shares called for redemption is deposited with the Corporation’s bankers or at any other place or places specified in the notice, on or before the Redemption Date, the holders of Class “G” Shares shall, after the Redemption Date, no longer have any right in or against the Corporation, except the right to receive payment of the Redemption Price and any accrued but unpaid dividends on such Class “G” Shares being redeemed, upon presentation and surrender of the certificates representing such number of shares to be redeemed.

(6) Retraction Right . Each holder of Class “G” Shares shall be entitled, at such holder’s discretion, upon prior written notice of no less than one (1) business day to the Corporation, to require the Corporation to redeem all or part of such holder’s Class “G” Shares for an aggregate amount equal to the Redemption Price (as defined below) and any accrued but unpaid dividends on such shares, payable, subject to the provisions of the Act in this regard, upon presentation and surrender by such holder of Class “G” Shares of the certificates representing the number of Class “G” Shares to be redeemed (the date on which such presentation and surrender occur being the “Retraction Date”). As of the Retraction Date, the Class “G” Shares shall be considered redeemed, and the

 

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Corporation shall pay to such holder of Class “G” Shares the Redemption Price (as defined below) and any accrued but unpaid dividends on such shares. In the event the Corporation is unable to pay the Redemption Price of the Class “G” Shares on the Retraction Date, it shall forthwith give the holder of Class “G” Shares written notice thereof.

(7) Redemption Price . The Redemption Price of the Class “G” Shares shall be an amount equal to $1,000 per Class “G” Share being redeemed. The Redemption Price may be paid in cash, or by certified cheque, bank draft or wire transfer, or by the delivery of assets having equivalent value, provided that in respect of any such payment denominated in a currency other than Canadian dollars, for the purposes of this Section (7), the applicable exchange rate shall be that published by the Bank of Canada in effect on the date of payment.

--------------------End of Share Capital--------------------

 

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SCHEDULE B

RESTRICTIONS ON THE TRANSFER OF SHARES

No shares of capital stock of the Corporation shall be transferred without the approval of Directors as evidenced by a resolution of the Board of Directors; the approval of such transfer of shares may be given as aforesaid after the transfer has been registered in the books of the Corporation, in which case, unless such resolution provides otherwise, the transfer is valid and shall come into force on the date of its registration in the books of the Corporation.

 

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SCHEDULE C

 

1. RESTRICTIONS ON THE TRANSFER OF SECURITIES

As long as the Corporation shall have the status of a « private issuer » as defined in Regulation 45-106 on Prospectus Exemptions , all transfers of securities of the Corporation (other than shares and non-convertible debt securities) shall be subject to the consent of the Board of Directors of the Corporation as evidenced by a resolution passed or signed by them.

 

2. CORPORATION’S BORROWING POWERS

Without in any way limiting the Corporation’s powers, the Board of directors may without the consent of the shareholders:

 

  (a) borrow money upon credit of the Corporation;

 

  (b) issue debentures or other securities of the Corporation, and pledge or sell the same for such sums and at such prices as may be deemed expedient; and

 

  (c) hypothecate the immoveable and moveable or otherwise affect the moveable property of the Corporation.

 

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Exhibit 1.27

[TRANSLATION]

9529454 CANADA INC .

(the “Corporation”)

GENERAL BY-LAWS

BY-LAW ONE

SHAREHOLDERS

ARTICLE 1. ANNUAL MEETINGS The annual meeting of shareholders of the Corporation shall be held at such place, on such date and at such time as the Board of Directors may determine from time to time. Annual meetings of shareholders may be called at any time by order of the Board of Directors, the Chairman of the Board or, provided they are directors of the Corporation, the President or any Vice-President.

ARTICLE 2. SPECIAL GENERAL MEETINGS Special general meetings of shareholders shall be held at such place, on such date and at such time as the Board of Directors may determine from time to time or at any place where all the shareholders of the Corporation entitled to vote thereat are present in person or represented by proxy or at such other place as all the shareholders of the Corporation shall approve in writing.

Special general meetings of shareholders may be called at any time by order of the Board of Directors, the Chairman of the Board or, provided they are directors of the Corporation, the President or any Vice-President.

ARTICLE 3. NOTICE OF MEETING A notice specifying the place, date, time and purpose of any meeting of shareholders shall be given to all the shareholders entitled thereto at least 21 days but not more than 60 days prior to the date fixed for the meeting. The notice may be mailed, postage prepaid, to the shareholders at their respective addresses as they appear on the books of the Corporation or delivered by hand or transmitted by any means of telecommunication.

If the convening of a meeting of shareholders is a matter of urgency, notice of such meeting may be given not less than 48 hours before such meeting is to be held.

In the case of joint holders of a share, the notice of meeting shall be given to that one of them whose name stands first in the books of the Corporation and notice so given shall be sufficient notice to all the joint holders.


Irregularities in the notice or in the giving thereof as well as the unintentional omission to give notice to, or the non-receipt of any such notice by, any of the shareholders shall not invalidate any action taken by or at any such meeting.

ARTICLE 4. CHAIRMAN The Chairman of the Board or, in his absence, the President, if he is a director, or, in his absence, one of the Vice-Presidents who is a director of the Corporation (to be designated by the meeting in the event of more than one such Vice-President being present) shall preside at all meetings of shareholders. If all of the aforesaid officers be absent or decline to act, the persons present and entitled to vote may choose one of their number to act as chairman of the meeting. In the event of an equality of votes, the chairman of any meeting shall not be entitled to a casting vote in respect of any matter submitted to the vote of the meeting.

ARTICLE 5. QUORUM, VOTING AND ADJOURNMENTS The holder or holders of not less than 50% of the outstanding shares of the share capital of the Corporation carrying voting rights at such meeting, present in person or represented by proxy, shall constitute a quorum for any meeting of shareholders of the Corporation.

The acts of the holders of a majority of the shares so present or represented and carrying voting rights thereat shall be the acts of all the shareholders except as to matters on which the vote or consent of the holders of a greater number of shares is required or directed by the laws governing the Corporation, the constituting act or the by-laws of the Corporation.

Should a quorum not be present at any meeting of shareholders, those present in person and entitled to be counted for the purpose of forming a quorum shall have power to adjourn the meeting from time to time and from place to place without notice other than announcement at the meeting until a quorum shall be present. At any such adjourned meeting, provided a quorum is present, any business may be transacted which might have been transacted at the meeting adjourned.

ARTICLE 6. RIGHT TO VOTE AND PROXY At all meetings of shareholders, each shareholder present and entitled to vote thereat shall have on a show of hands one vote and, upon a poll, each shareholder present in person or represented by proxy shall be entitled to one vote for each share carrying voting rights registered in his name in the books of the Corporation unless, under the terms of the constituting act some other scale of voting is fixed, in which event such scale of voting shall be adopted. Any shareholder or proxy may demand a ballot (either before or on the declaration of the result of a vote upon a show of hands) in respect of any matter submitted to the vote of the shareholders.

 

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In the case of joint holders of a share, the vote of the senior who tenders a vote, whether in person or by proxy, shall be accepted to the exclusion of the votes of the other joint holders, and for this purpose seniority shall be determined by the order in which the names stand in the books of the Corporation.

ARTICLE 7. SCRUTINEERS The chairman at any meeting of shareholders may appoint one or more persons, who need not be shareholders, to act as scrutineer or scrutineers at the meeting.

ARTICLE 8. ADDRESSES   OF   SHAREHOLDERS Every shareholder shall furnish to the Corporation an address to which all notices intended for such shareholder shall be given, failing which, any such notice may be given to him at any other address appearing on the books of the Corporation. If no address appears on the books of the Corporation, such notice may be sent to such address as the person sending the notice may consider to be the most likely to result in such notice promptly reaching such shareholder.

BY-LAW TWO

BOARD OF DIRECTORS

ARTICLE 1. ELECTION OF DIRECTORS AND TERM OF OFFICE Except as herein otherwise provided, each director shall be elected at an annual meeting of shareholders or at any special general meeting of shareholders called for that purpose, by a majority of the votes cast in respect of such election. It shall not be necessary that the voting for the election of directors of the Corporation be conducted by ballot unless voting by ballot is requested by a shareholder or proxy. Each director so elected shall hold office until the election of his successor unless he shall resign or his office become vacant by death, removal or other cause.

ARTICLE 2. ACTS OF DIRECTORS All acts done by the directors or by any person acting as a director, until their successors have been duly elected or appointed, shall, notwithstanding that it be afterwards discovered that there was some defect in the election of the directors or such person acting as aforesaid or that they or any of them were disqualified, be as valid as if the directors or such other person, as the case may be, had been duly elected and were qualified to be directors of the Corporation.

ARTICLE 3. POWER TO ALLOT STOCK AND GRANT OPTIONS Subject to the provisions of the constituting act of the Corporation, the shares of the Corporation shall be at all times under the control of the directors who may by resolution, from time to time, accept subscriptions, allot, issue, grant options in respect of or otherwise dispose of the whole or any part of the unissued shares of the

 

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share capital of the Corporation on such terms and conditions, for such consideration not contrary to law or to the constituting act of the Corporation and at such times prescribed in such resolutions. The directors may, from time to time, make calls upon the shareholders in respect of any moneys unpaid upon their shares. Each shareholder shall pay the amount called on his shares at the time and place fixed by the directors.

ARTICLE 4. POWER TO DECLARE DIVIDENDS The directors may from time to time as they may deem advisable, declare and pay dividends out of any funds available for dividends to the shareholders according to their respective rights and interest therein.

Any dividend may be paid by cheque or warrant made payable to and mailed to the address on the books of the Corporation of the shareholder entitled thereto and in the case of joint holders to that one of them whose name stands first in the books of the Corporation, and the mailing of such cheque or warrant shall constitute payment unless the cheque or warrant is not paid upon presentation.

ARTICLE 5. PLACE   OF   MEETINGS   AND   NOTICES All meetings of the Board of Directors shall be held at such place, on such date and at such time as may be determined from time to time by the Board of Directors or at any place where all the directors are present.

Any meeting of the Board of Directors may be called at any time by or on the order of the Chairman of the Board or, provided they are directors of the Corporation, the President or any Vice-President or by any two directors.

Notice specifying the place, date and time of any meeting of the Board of Directors shall be given to each of the directors at least 72 hours prior to the date fixed for such meeting. The notice may be mailed, postage prepaid, to each director at his residence or usual place of business, or delivered by hand or transmitted by any means of telecommunication.

In any case where the convening of a meeting of directors is a matter of urgency, notice of such meeting may be given not less than 3 hours before such meeting is to be held.

Notwithstanding any other provisions of this ARTICLE 5, immediately after the annual meeting of shareholders in each year, a meeting of such of the newly elected directors as are then present shall be held, provided they shall constitute a quorum, without further notice, for the election or appointment of officers of the Corporation and the transaction of such other business as may come before them.

 

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ARTICLE 6. CHAIRMAN The Chairman of the Board or, in his absence, the President, if he is a director, or, in his absence, one of the Vice-Presidents who is a director of the Corporation (to be designated by the meeting in the event of more than one such Vice-President being present) shall preside at all meetings of the directors. If all of the aforesaid officers are absent or decline to act, the directors present may choose one of their number to act as chairman of the meeting. In the event of an equality of votes, the chairman of any meeting shall be entitled to cast one vote as a director, but not a second or casting vote in respect of any matter submitted to the vote of the meeting.

ARTICLE 7. QUORUM Except when the Corporation has only one director, the directors may from time to time fix by resolution the quorum for meetings of directors, but until otherwise fixed, a majority of the directors in office shall constitute a quorum.

ARTICLE 8. VACANCIES AND RESIGNATION In the case of a vacancy occurring in the Board of Directors, the directors then in office, by the affirmative vote of a majority of said remaining directors, so long as a quorum of the Board remains in office, may from time to time and at any time fill such vacancy for the remainder of the term.

ARTICLE 9. SOLE DIRECTOR In the case where the Corporation has only one director, the acts that may be or are required to be taken by the Board of Directors or by two directors of the Corporation, under the Corporation’s by-laws, may be taken by the sole director of the Corporation.

BY-LAW THREE

OFFICERS

ARTICLE 1. OFFICERS The directors shall elect or appoint a President, shall appoint a Secretary and may also elect or appoint as officers a Chairman of the Board, one or more Vice-Presidents, one or more Assistant-Secretaries, a Treasurer and one or more Assistant-Treasurers. Such officers shall be elected or appointed at the first meeting of the Board of Directors after each annual meeting of shareholders. There may also be appointed such other officers as the Board of Directors may from time to time deem necessary. Such officers shall respectively perform such duties, in addition to those specified in the by-laws of the Corporation, as shall from time to time be prescribed by the Board of Directors. The same person may hold more than one office, provided, however, that the same person shall not hold the office of President and Vice-President. None of such officers except the Chairman of the Board need be a director of the Corporation.

 

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ARTICLE 2. CHAIRMAN OF THE BOARD The Chairman of the Board, if any, shall preside at all meetings of directors and shareholders of the Corporation and he shall have such other powers and duties as the Board of Directors may determine from time to time.

ARTICLE 3. PRESIDENT The President shall be the chief executive officer of the Corporation and shall exercise a general control of and supervision over its affairs. He shall have such other powers and duties as the Board of Directors may determine from time to time.

ARTICLE 4. VICE-PRESIDENT OR VICE-PRESIDENTS The Vice-President or Vice-Presidents shall have such powers and duties as may be determined by the Board of Directors from time to time. In case of the absence, disability, refusal or omission to act of the President, a Vice-President designated by the directors may exercise the powers and perform the duties of the President and, if such Vice-President exercises any of the powers or performs any of the duties of the President, the absence, disability, refusal or omission to act of the President shall be presumed.

ARTICLE 5. TREASURER   AND   ASSISTANT-TREASURERS The Treasurer shall have general charge of the finances of the Corporation. He shall render to the Board of Directors, whenever directed by the Board and as soon as possible after the close of each financial year, an account of the financial condition of the Corporation and of all his transactions as Treasurer. He shall have charge and custody of and be responsible for the keeping of the books of account required under the laws governing the Corporation. He shall perform all the acts incidental to the office of Treasurer or as may be determined by the Board of Directors from time to time.

Assistant-Treasurers shall perform any of the duties of the Treasurer delegated to them from time to time by the Board of Directors or by the Treasurer.

ARTICLE 6. SECRETARY   AND   ASSISTANT-SECRETARIES The Secretary shall attend to the giving of all notices of the Corporation and shall keep the records of all meetings and resolutions of the shareholders and of the Board of Directors in a book to be kept for that purpose. He shall keep in safe custody the seal of the Corporation, if any. He shall have charge of the books containing the names and addresses of the shareholders and directors of the Corporation and such other books and papers as the Board of Directors may direct. He shall perform such other duties incidental to his office or as may be required by the Board of Directors from time to time.

Assistant-Secretaries shall perform any of the duties of the Secretary delegated to them from time to time by the Board of Directors or by the Secretary.

 

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ARTICLE 7. SECRETARY-TREASURER Whenever the Secretary shall also be the Treasurer he may, at the option of the Board of Directors, be designated the “Secretary-Treasurer”.

ARTICLE 8. REMOVAL The Board of Directors may, subject to the law and the provisions of any contract, remove and discharge any officer of the Corporation at any meeting called for that purpose and may elect or appoint any other person.

BY-LAW FOUR

SHARE CAPITAL

ARTICLE 1. SHARE CERTIFICATES Certificates representing shares of the share capital of the Corporation shall be approved by the Board of Directors. Share certificates shall bear the signatures of two directors or two officers of the Corporation or of one director and one officer of the Corporation. Such signatures may be engraved, lithographed or otherwise mechanically reproduced thereon. Any certificate bearing the facsimile reproduction of the signature of any of such authorized persons shall be deemed to have been manually signed by him and shall be as valid to all intents and purposes as if it had been manually signed, notwithstanding that the person whose signature is so reproduced shall, at the time that the certificate is issued or on the date of such certificate, have ceased to be an officer or director of the Corporation, as the case may be.

ARTICLE 2. TRANSFER OF SHARES A register of transfers containing the date and particulars of all transfers of shares of the share capital of the Corporation shall be kept either at the head office or at such other office of the Corporation or at such other place in the Province of Québec or elsewhere in Canada as may be determined, from time to time, by resolution of the Board of Directors. One or more branch registers of transfers may be kept at any office of the Corporation or any other place within the Province of Québec or elsewhere as may from time to time be determined by resolution of the Board of Directors. The date and particulars of all transfers of shares contained in a branch register of transfers must also be entered in the register of transfers. Such register of transfers and branch registers of transfers shall be kept by the Secretary or by such other officer or officers as may be specially charged with this duty or by such agent or agents as may be appointed from time to time for that purpose by resolution of the Board of Directors.

Entry of the transfer of any share of the share capital of the Corporation may be made in the register of transfers or in a branch register of transfers regardless of where the certificate representing the share to be transferred shall have been issued.

 

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If the shares of the share capital of the Corporation to be transferred are represented by a certificate, the transfer of such shares shall not be entered in the register of transfers or the branch register of transfers, unless or until the certificate representing the shares to be transferred has been duly endorsed and surrendered for cancellation.

ARTICLE 3. CLOSING OF BOOKS The Board of Directors may, from time to time, by resolution close the register of transfers and the branch registers of transfers, if any, for any time or times not exceeding in the whole 60 days in each financial year of the Corporation on giving notice by advertisement in a newspaper published in the place where the register of transfers is kept and in a newspaper published in the place where each of the branch registers of transfers is kept. The Board of Directors may by resolution fix in advance a date not exceeding 60 days preceding the date of any meeting of shareholders of the Corporation or the date for the payment of any dividend or the date for the allotment of any rights as a record date for the determination of the shareholders entitled to receive notice of any such meeting or to receive payment of any such dividend or to be allotted any such rights. Only shareholders of record on the record date so fixed shall be entitled to receive such notice or to receive payment of such dividend or to be allotted such rights, as the case may be, notwithstanding any transfer of any shares on the books of the Corporation after such record date.

ARTICLE 4. TRANSFER AGENTS AND REGISTRARS The Board of Directors may appoint or remove from time to time transfer agents or registrars of transfers of shares of the share capital of the Corporation and, subject to the laws governing the Corporation, make regulations generally, from time to time, with reference to the transfer of the shares of the share capital of the Corporation. Upon any such appointment being made, all certificates representing shares of the share capital of the Corporation thereafter issued shall be countersigned by one of such transfer agents or one of such registrars of transfers and shall not be valid unless so countersigned.

BY-LAW FIVE

FINANCIAL YEAR

The financial year of the Corporation shall end on the 31 st day of December in each year. Such date may, however, be changed from time to time by resolution of the Board of Directors.

 

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BY-LAW SIX

ARTICLE 1. CONTRACTS All contracts, deeds, agreements, documents, bonds, debentures and other instruments requiring execution by the Corporation may be signed by two directors or two officers of the Corporation or by one director and one officer of the Corporation or by such persons as the Board of Directors may otherwise authorize from time to time by resolution. Any such authorization may be general or confined to specific instances.

ARTICLE 2. CONFLICT OF INTERESTS The Corporation may transact business with one or more of its directors or with any firm of which one or more of its directors are members or employees or with any corporation or association of which one or more of its directors are shareholders, directors, officers or employees. The director who has an interest in such transaction shall disclose it to the Corporation and to the other directors making a decision in respect of such transaction and shall abstain from discussing and voting on the question except if his vote is required to bind the Corporation in respect of such transaction.

BY-LAW SEVEN

DECLARATIONS

Any director or officer of the Corporation or any other person nominated for that purpose by any director or officer of the Corporation is authorized and empowered to give instructions to an attorney, for civil or for criminal, to appear and make answer for and on behalf and in the name of the Corporation to all writs, orders and interrogatories upon articulated facts issued out of any court and to declare for and on behalf and in the name of the Corporation any answer to writs of attachment by way of garnishment in which the Corporation is garnishee. Any director, officer or person so nominated is authorized and empowered to make all affidavits and sworn declarations in connection therewith or in connection with any and all judicial proceedings to which the Corporation is a party and to instruct an attorney to make demands of abandonment or petitions for winding-up or bankruptcy orders upon any debtor of the Corporation and to attend and vote at all meetings of creditors of the Corporation’s debtors and grant proxies in connection therewith. Any such director, officer or person is authorized to appoint by general or special power or powers of attorney any person or persons, including any person other than those directors, officers and persons hereinbefore mentioned, as attorney or attorneys of the Corporation to do any of the foregoing things.

 

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BY-LAW EIGHT

SEAL

The seal of the Corporation, if any, may be affixed by any director or officer of the Corporation or by any person designated by such director or officer.

BY-LAW NINE

REGULATION 45-106

ARTICLE 1. NUMBER OF HOLDERS OF SHARES AND SECURITIES The beneficial ownership of securities of the Corporation, including its shareholders, shall be limited to fifty (50) persons, not including employees and former employees of the Corporation or its affiliates, provided that each person is counted as one beneficial owner unless the person is created or used solely to purchase or hold securities of the Corporation in which case each beneficial owner or each beneficiary of the person, as the case may be, must be counted as a separate beneficial owner

ARTICLE 2. ISSUE OF SECURITIES  The directors, by way of resolution, may accept subscriptions for securities, allot or issue securities of the Company at such times, on such terms and conditions, to such persons and for such consideration as they see fit.

ARTICLE 3. PRIVATE ISSUER STATUS The directors shall use their best efforts to ensure that the Corporation remains a private issuer and complies with the provisions of the Regulation 45-106 .

ARTICLE 4. DECLARATION OF SUBSCRIBER Any person who subscribes shares or other securities issued by the Corporation shall declare to the Corporation that this subscription is exempted from prospectus and registration requirements pursuant to section 2.4 of the Regulation 45-106

ARTICLE 5. DECLARATION OF TRANSFEREE Any person who purchases shares or other securities of the Corporation shall declare that his acquisition is exempted from prospectus and registration requirements pursuant to the Regulation 45-106 .

ARTICLE 6. COMMISSION No commission or other remuneration, including a finder’s fee, shall be paid in connection with the sale of shares or other securities to a director, executive officer, control person or founder of the Corporation or of an affiliate of the Company.

 

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ADOPTED on November 30, 2015.

 

The President,

 

/s/ Manon Brouillette

 

Manon Brouillette

 

The Corporate Secretary

 

/s/ Marc M. Tremblay

 

Marc M. Tremblay

 

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BY-LAW TEN

BORROWING POWERS

The administrators of the Corporation are hereby authorized, when to their best judgment, it is in the best interest of the Corporation to:

 

  (a) borrow money on the credit of the Corporation from any bank, corporation, firm, association or individual, in the amount and in the conditions the Board of directors sees fit, and in the best interest of the Corporation;

 

  (b) increase or decrease the amount to be borrowed;

 

  (c) issue or have issued, sell or pledge bonds, debentures, notes or other debt obligations of the Corporation as by the terms, agreements and conditions and for the sums as seen fit by the Board of directors;

 

  (d) hypothecate movable and immovable property of the Corporation currently owned or subsequently acquired to secure payment or performance of an obligation or other debt obligations of the Corporation;

 

  (e) mortgage, hypothecate, charge, pledge or otherwise create a security interest in all or any currently owned or subsequently acquired movable and immovable property of the Corporation to secure such bonds, debentures, notes or other debt obligations, other than those contracted by the issuing of bonds or other securities;

 

  (f) provide a guarantee on behalf of the Corporation to secure payment of all debt obligations such as borrowed monies, debentures, notes, credits, overdraft advances, or other debts in favour of a bank, corporation, firm or person, including interest, hypothecate and provide to any bank, corporation, firm or any individual, all or any one of the Corporation property, movable or immovable, currently owned or subsequently acquired and provide guarantees that may be accepted by a bank in virtue of the different sections of the Bank Act, renew, modify or substitute such guarantees from time to time, with the authority to contract promises, to provide guarantees in virtue of the Bank Act related to any current debt or subsequently contracted by the Corporation with any bank;

 

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  (g) the Board of directors may from time to time, by resolution, delegate to any one or more directors or officers all or any of the powers conferred on the directors by paragraph 1 of this by-law to the full extent thereof or such lesser extent as the directors may in any such resolution provide;

AND the powers hereby conferred shall be deemed to be permanent and not subject to cease after the first exercise. Such powers can be used from time to time as long as they are not revoked by a written resolution.

 

  ADOPTED on November 30, 2015.
  The President,
 

/s/ Manon Brouillette

  Manon Brouillette
  The Corporate Secretary
 

/s/ Marc M. Tremblay

  Marc M. Tremblay

 

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Exhibit 1.28

 

LOGO


LOGO


SCHEDULE 1

The Corporation is authorized to issue (i) an unlimited number of each of the following classes of shares without par value: Class A shares (the “ Class A Shares ”), Class B shares (the “ Class B Shares ”), Class C shares (the “ Class C Shares ”) and Class D shares (the “ Class D Shares ”). The rights and restrictions attaching to the Class A Shares, the Class B Shares, the Class C Shares and the Class D Shares are as follows:

 

1. VOTING RIGHTS

 

1.1. Voting Shares . The holders of Class A Shares, Class B Shares and Class C Shares (collectively, the “Voting Shares”) shall be entitled to receive notice of, attend and vote at, on the basis of one vote per share, all meetings of shareholders, with the exception of meetings at which only holders of specified classes of shares are entitled to vote.

 

1.2. Single Class . Subject to the provisions of the Canada Business Corporations Act (the “Act”), the holders of the Voting Shares shall vote together as a single class on all matters submitted to a vote that requires the consent of shareholders.

 

1.3. Class D Shares . The holders of Class D Shares shall not be entitled to receive notice of, to attend, or to vote at meetings of shareholders, except as specifically provided for in the Act.

 

2. RIGHT TO DIVIDENDS

 

2.1. The holders of Class A Shares, Class B Shares, Class C Shares and Class D Shares (collectively, the “Shares”) shall be entitled to participate in the property, profits and surplus assets of the Corporation and, for that purpose, to receive dividends, as and when declared by the board of directors of the Corporation out of funds legally available therefor, on a pari passu basis. Any declaration or payment of dividends to the holders of Shares shall be made rateably, based on the number of Shares held by each of them.

 

2.2. No dividends shall be declared or paid with respect to any of the Class A Shares, Class B Shares, Class C Shares or Class D Shares unless such dividends are also declared or paid in respect of each of the other classes of Shares on a pari passu basis as provided for in Section 2.1.

 

3. DISTRIBUTION OF ASSETS

 

3.1. Class C Preferred Amount . The holders of Class C Shares are entitled, in priority to any distribution of the property or assets of the Corporation to the holders of Class A Shares, Class B Shares and Class D Shares, to receive, upon liquidation, dissolution or winding-up of the Corporation, whether voluntary or involuntary, the aggregate amount of $100 (the “Class C Preferred Amount”). The Class C Preferred Amount shall be distributed among the holders of Class C Shares rateably, based on the number of Class C Shares held by each of them.


3.2. Class B Preferred Amount . Once the payment of the Class C Preferred Amount to the holders of Class C Shares is fully satisfied, the holders of Class B Shares are entitled, in priority to any distribution of the property or assets of the Corporation to the holders of Class A Shares, Class C Shares (except for the Class C Preferred Amount) and Class D Shares, to receive, upon liquidation, dissolution or winding-up of the Corporation, whether voluntary or involuntary, the aggregate amount of $150 (the “Class B Preferred Amount”). The Class B Preferred Amount shall be distributed among the holders of Class B Shares rateably, based on the number of Class B Shares held by each of them.

 

3.3. Remaining Property . Once the payments of the Class C Preferred Amount and of the Class B Preferred Amount to, respectively, the holders of Class C Shares and the holders of Class B Shares are fully satisfied, the remaining property of Corporation shall be distributed, upon liquidation or dissolution of the Corporation, rateably among the holders of Shares, based on the number of Shares held by each of them.

 

4. CONVERSION

 

4.1. Conversion upon a Qualified IPO or upon a Class A Majority Consent . Immediately prior to or contemporaneously with the closing of a Qualified IPO, all but not less than all of the Class B Shares, Class C Shares and Class D Shares (collectively, the “ Convertible Shares ”) will automatically be converted into such number of fully paid and non-assessable Class A Shares as is determined in accordance with Sections 4.4 and 4.5. In addition, upon the decision of a Class A Majority Consent to that effect, all but not less than all of the Convertible Shares will automatically be converted into the number of fully paid and non-assessable Class A Shares determined in accordance with Sections 4.4 and 4.5.

 

4.2.

Mechanics of Conversion. Upon the conversion of any Convertible Shares into Class A Shares under Section 4.1, all the then outstanding Convertible Shares shall be automatically converted into Class A Shares without any further action by the holders thereof and whether or not the certificates representing such shares are surrendered to the Corporation or its transfer agent; provided , however, that all holders of Convertible Shares being converted shall be given written notice of the occurrence of an event specified in Section 4.1 including the date such event occurred. Upon the occurrence of such automatic conversion, each holder must surrender the share certificate or certificates formerly representing that holder’s Convertible Shares at the principal office of the Corporation or the office of any transfer agent for the Class A Shares. Upon receipt by the Corporation of the share certificate or certificates, the Corporation will issue and deliver to such holder, promptly at the office and in the name shown on the surrendered share certificate or certificates, a share certificate or certificates for the number of Class A Shares into which the Convertible Shares are converted, together with cash in respect of (i) any fractional Class A Shares issuable upon such conversion as contemplated in Section 4.3, and, if applicable, and (ii) any declared but unpaid dividends thereon. The Corporation is not required to issue share certificates evidencing the Class A Shares issuable upon the automatic conversion of Convertible Shares until share certificates formerly evidencing the Convertible Shares are either delivered to the Corporation or its transfer agent, or the holder notifies the Corporation or such transfer agent that such share


  certificates have been lost, stolen or destroyed, and executes and delivers an agreement to indemnify the Corporation from any loss incurred by the Corporation in connection with the loss, theft or destruction.

 

4.3. Fractional Shares. No fractional Class A Shares shall be issued upon the conversion of Convertible Shares. All Class A Shares (including fractions) issuable upon conversion of more than one Convertible Share by its holder shall be aggregated for the purpose of determining whether the conversion results in the issuance of any fractional Class A Share. If such is the case, the Corporation shall, instead of issuing any fractional Class A Share, pay an amount in cash equal to the product of such fraction multiplied by the Class A Share’s fair market value on the date of conversion as determined in good faith by the board of directors of the Corporation.

 

4.4. Conversion Calculation for Convertible Shares . Each Convertible Share is convertible, subject to the terms and conditions of these Articles, for the number of fully paid and non-assessable Class A Shares determined by the conversion ratio (the “ Conversion Ratio ”) applicable to it. Immediately after the issuance of a Convertible Share, its initial Conversion Ratio will be one, and will subsequently be adjusted as provided for herein (and otherwise to reflect any equitable adjustments required further to stock splits and similar capital reorganizations).

 

4.5. Adjustment for Amalgamation or Reorganization. In case of any amalgamation, reorganization, capital reorganization, reclassification or recapitalization of the share capital of the Corporation, change of control or merger, arrangement or other transaction involving the Corporation and any other entity, each Convertible Share shall thereafter be convertible into (or shall be converted into a security which shall be convertible into or exchangeable for) the kind and amount of shares, or other securities, or property that its holder would have received as holder of Class A Shares if such Convertible Share had been converted immediately prior to such event. In such case, appropriate adjustments (as determined in good faith by the board of directors of the Corporation), including adjustments to the Conversion Ratio, as applicable, shall be made in the application of the provisions of this Section 4.5 with respect to the rights thereafter of the holders of Convertible Shares, in relation to any shares, securities or other property thereafter deliverable upon the conversion of the Convertible Shares. Notwithstanding the foregoing, in the event that adjustments contemplated in this Section 4.5 with respect to a class of the Voting Shares differ from adjustments proposed to be made with respect to other classes of Voting Shares, such adjustments shall, in addition to the prior approval of the board of directors of the Corporation, require the approval of a Special Majority (which Special Majority shall exclude the holders of the Class A Shares at the time the adjustment is being considered).

 

4.6.

Certificate of Adjustment. In each case of an adjustment to the Conversion Ratio for any Convertible Shares, or to the number of Class A Shares or other securities issuable upon the conversion of Convertible Shares, the Corporation, at its expense, shall compute such adjustment in accordance with the provisions hereof and prepare a certificate showing such adjustment. Within five (5) days of the effective date of such adjustment the Corporation shall mail such certificate, by first class mail, postage prepaid, to each


  registered holder of Convertible Shares at the holder’s address as shown in the Corporation’s books or deliver it in any other manner and at such other address as indicated to the Corporation in writing by such holder. The certificate shall also show in reasonable detail the facts and calculations upon which such adjustment is based.

 

4.7. For the purposes hereof:

 

  4.7.1.    “Class A Majority Consent” means a consent in writing executed by such number of shareholders of record of Class A Shares holding more than 50% of the issued and outstanding Class A Shares at any relevant time;
  4.7.2.    Qualified IPO ” means an underwritten initial public offering or offerings of voting and participating Shares of the share capital of the Corporation (for the purposes of this Section, the “Common Shares” ) (i) pursuant to a prospectus under the Securities Act (Quebec), as amended, or similar document filed under other applicable securities laws in Canada or the United States of America, covering the offer and sale to the public of the Common Shares, which are to be listed on a recognized stock exchange such as the Toronto Stock Exchange or the New York Stock Exchange or are quoted on the NASDAQ or any combination thereof, generating net proceeds to the Corporation of at least $70 million, with a pre-money valuation of the Corporation of at least $350 million, or (ii) approved by a Special Majority.

 

5. OTHER PROVISIONS

 

5.1. Separate Class Votes . Holders of Shares of any class shall not be entitled to vote separately as a class, and to exercise dissent rights under section 190 of the Act, upon a proposal to amend the articles (whether by articles of amendment or articles of amalgamation) of the Corporation to: (i) increase any maximum number of authorized shares of a class having rights or privileges equal or superior to the Shares of such class, (ii) create a new class or series of Shares equal or superior to the Shares of such class, and (iii) effect an exchange, reclassification or cancellation of the Shares of such class, unless the Voting Shares are not treated proportionally and in the same manner pursuant to such exchange, reclassification or cancellation.

 

5.2. Restrictions on Subdivision and Consolidation . Neither the Class A Shares, the Class B Shares, the Class C Shares nor the Class D Shares shall be subdivided, consolidated, reclassified or otherwise changed unless, contemporaneously therewith, all other classes of Shares are subdivided, consolidated, reclassified or otherwise changed (each, a “Change”) in the same proportion and in the same manner, except to the extent that the Class D Shares may remain non-voting following any such Change, (b) the Class B Preferred Amount and the Class C Preferred Amount may be maintained following such Change.


SCHEDULE 2

SHARE TRANSFERS

All transfers of shares of the Corporation shall require the approval of the Board of Directors of the Corporation expressed by resolution.


SCHEDULE 3

TRANSFER OF SECURITIES

All transfers of securities of the Corporation (other than non-convertible debt securities) shall require the approval of the Board of Directors of the Corporation.

LIEN

The Corporation shall have a lien on all securities registered in the name of a security holder or such security holder’s representative for a debt of that security holder to the Corporation.

FINANCING

Without in any way limiting the powers conferred upon the Corporation or its directors by any of the provisions of the Canada Business Corporations Act , but subject to the provisions thereof, the directors of the Corporation may, without authorization of the shareholders, and to any Unanimous Shareholders Agreement, as the case may be, cause the Corporation to:

 

  (a) hypothecate or otherwise create a security interest in any property, moveable or immoveable, present or future, which the Corporation may presently own or subsequently acquire, for the purpose of securing any bonds, debentures or securities which the Corporation is by law entitled to issue or for the purpose of securing the performance of any obligations of the Corporation;

 

  (b) borrow money, without limitation or restriction, upon the credit of the Corporation;

 

  (c) issue, re-issue, sell or hypothecate debt obligations of the Corporation; or

 

  (d) guarantee the performance of any obligation of any person.

 

4. APPOINTMENT OF DIRECTORS

The directors may appoint one or more additional directors, who shall hold office for a term expiring no later than the close of the next annual meeting of shareholders. The total number of director so appointed may not exceed one third of the number of directors elected at the previous annual meeting of shareholders.

Exhibit 1.29

[TRANSLATION]

8480869 C ANADA INC .

(the “Corporation”)

GENERAL BY-LAWS

BY-LAW ONE

SHAREHOLDERS

ARTICLE 1. ANNUAL MEETINGS The annual meeting of shareholders of the Corporation shall be held at such place, on such date and at such time as the Board of Directors may determine from time to time. Annual meetings of shareholders may be called at any time by order of the Board of Directors, the Chairman of the Board or, provided they are directors of the Corporation, the President or any Vice-President.

ARTICLE 2. SPECIAL GENERAL MEETINGS Special general meetings of shareholders shall be held at such place, on such date and at such time as the Board of Directors may determine from time to time or at any place where all the shareholders of the Corporation entitled to vote thereat are present in person or represented by proxy or at such other place as all the shareholders of the Corporation shall approve in writing.

Special general meetings of shareholders may be called at any time by order of the Board of Directors, the Chairman of the Board or, provided they are directors of the Corporation, the President or any Vice-President.

ARTICLE 3. NOTICE OF MEETING A notice specifying the place, date, time and purpose of any meeting of shareholders shall be given to all the shareholders entitled thereto at least 21 days but not more than 60 days prior to the date fixed for the meeting. The notice may be mailed, postage prepaid, to the shareholders at their respective addresses as they appear on the books of the Corporation or delivered by hand or transmitted by any means of telecommunication.

If the convening of a meeting of shareholders is a matter of urgency, notice of such meeting may be given not less than 48 hours before such meeting is to be held.

In the case of joint holders of a share, the notice of meeting shall be given to that one of them whose name stands first in the books of the Corporation and notice so given shall be sufficient notice to all the joint holders.


Irregularities in the notice or in the giving thereof as well as the unintentional omission to give notice to, or the non-receipt of any such notice by, any of the shareholders shall not invalidate any action taken by or at any such meeting.

ARTICLE 4. CHAIRMAN The Chairman of the Board or, in his absence, the President, if he is a director, or, in his absence, one of the Vice-Presidents who is a director of the Corporation (to be designated by the meeting in the event of more than one such Vice-President being present) shall preside at all meetings of shareholders. If all of the aforesaid officers be absent or decline to act, the persons present and entitled to vote may choose one of their number to act as chairman of the meeting. In the event of an equality of votes, the chairman of any meeting shall not be entitled to a casting vote in respect of any matter submitted to the vote of the meeting.

ARTICLE 5. QUORUM, VOTING AND ADJOURNMENTS The holder or holders of not less than 50% of the outstanding shares of the share capital of the Corporation carrying voting rights at such meeting, present in person or represented by proxy, shall constitute a quorum for any meeting of shareholders of the Corporation.

The acts of the holders of a majority of the shares so present or represented and carrying voting rights thereat shall be the acts of all the shareholders except as to matters on which the vote or consent of the holders of a greater number of shares is required or directed by the laws governing the Corporation, the constituting act or the by-laws of the Corporation.

Should a quorum not be present at any meeting of shareholders, those present in person and entitled to be counted for the purpose of forming a quorum shall have power to adjourn the meeting from time to time and from place to place without notice other than announcement at the meeting until a quorum shall be present. At any such adjourned meeting, provided a quorum is present, any business may be transacted which might have been transacted at the meeting adjourned.

ARTICLE 6. RIGHT TO VOTE AND PROXY At all meetings of shareholders, each shareholder present and entitled to vote thereat shall have on a show of hands one vote and, upon a poll, each shareholder present in person or represented by proxy shall be entitled to one vote for each share carrying voting rights registered in his name in the books of the Corporation unless, under the terms of the constituting act some other scale of voting is fixed, in which event such scale of voting shall be adopted. Any shareholder or proxy may demand a ballot (either before or on the declaration of the result of a vote upon a show of hands) in respect of any matter submitted to the vote of the shareholders.

 

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In the case of joint holders of a share, the vote of the senior who tenders a vote, whether in person or by proxy, shall be accepted to the exclusion of the votes of the other joint holders, and for this purpose seniority shall be determined by the order in which the names stand in the books of the Corporation.

ARTICLE 7. SCRUTINEERS The chairman at any meeting of shareholders may appoint one or more persons, who need not be shareholders, to act as scrutineer or scrutineers at the meeting.

ARTICLE 8. ADDRESSES   OF   SHAREHOLDERS Every shareholder shall furnish to the Corporation an address to which all notices intended for such shareholder shall be given, failing which, any such notice may be given to him at any other address appearing on the books of the Corporation. If no address appears on the books of the Corporation, such notice may be sent to such address as the person sending the notice may consider to be the most likely to result in such notice promptly reaching such shareholder.

BY-LAW TWO

BOARD OF DIRECTORS

ARTICLE 1. ELECTION OF DIRECTORS AND TERM OF OFFICE Except as herein otherwise provided, each director shall be elected at an annual meeting of shareholders or at any special general meeting of shareholders called for that purpose, by a majority of the votes cast in respect of such election. It shall not be necessary that the voting for the election of directors of the Corporation be conducted by ballot unless voting by ballot is requested by a shareholder or proxy. Each director so elected shall hold office until the election of his successor unless he shall resign or his office become vacant by death, removal or other cause.

ARTICLE 2. ACTS OF DIRECTORS All acts done by the directors or by any person acting as a director, until their successors have been duly elected or appointed, shall, notwithstanding that it be afterwards discovered that there was some defect in the election of the directors or such person acting as aforesaid or that they or any of them were disqualified, be as valid as if the directors or such other person, as the case may be, had been duly elected and were qualified to be directors of the Corporation.

ARTICLE 3. POWER TO ALLOT STOCK AND GRANT OPTIONS Subject to the provisions of the constituting act of the Corporation, the shares of the Corporation shall be at all times under the control of the directors who may by resolution, from time to time, accept subscriptions, allot, issue, grant options in respect of or otherwise dispose of the whole or any part of the unissued shares of the

 

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share capital of the Corporation on such terms and conditions, for such consideration not contrary to law or to the constituting act of the Corporation and at such times prescribed in such resolutions. The directors may, from time to time, make calls upon the shareholders in respect of any moneys unpaid upon their shares. Each shareholder shall pay the amount called on his shares at the time and place fixed by the directors.

ARTICLE 4. POWER   TO   DECLARE   DIVIDENDS The directors may from time to time as they may deem advisable, declare and pay dividends out of any funds available for dividends to the shareholders according to their respective rights and interest therein.

Any dividend may be paid by cheque or warrant made payable to and mailed to the address on the books of the Corporation of the shareholder entitled thereto and in the case of joint holders to that one of them whose name stands first in the books of the Corporation, and the mailing of such cheque or warrant shall constitute payment unless the cheque or warrant is not paid upon presentation.

ARTICLE 5. PLACE   OF   MEETINGS   AND   NOTICES All meetings of the Board of Directors shall be held at such place, on such date and at such time as may be determined from time to time by the Board of Directors or at any place where all the directors are present.

Any meeting of the Board of Directors may be called at any time by or on the order of the Chairman of the Board or, provided they are directors of the Corporation, the President or any Vice-President or by any two directors.

Notice specifying the place, date and time of any meeting of the Board of Directors shall be given to each of the directors at least 72 hours prior to the date fixed for such meeting. The notice may be mailed, postage prepaid, to each director at his residence or usual place of business, or delivered by hand or transmitted by any means of telecommunication.

In any case where the convening of a meeting of directors is a matter of urgency, notice of such meeting may be given not less than 3 hours before such meeting is to be held.

Notwithstanding any other provisions of this ARTICLE 5, immediately after the annual meeting of shareholders in each year, a meeting of such of the newly elected directors as are then present shall be held, provided they shall constitute a quorum, without further notice, for the election or appointment of officers of the Corporation and the transaction of such other business as may come before them.

 

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ARTICLE 6. CHAIRMAN The Chairman of the Board or, in his absence, the President, if he is a director, or, in his absence, one of the Vice-Presidents who is a director of the Corporation (to be designated by the meeting in the event of more than one such Vice-President being present) shall preside at all meetings of the directors. If all of the aforesaid officers are absent or decline to act, the directors present may choose one of their number to act as chairman of the meeting. In the event of an equality of votes, the chairman of any meeting shall be entitled to cast one vote as a director, but not a second or casting vote in respect of any matter submitted to the vote of the meeting.

ARTICLE 7. QUORUM Except when the Corporation has only one director, the directors may from time to time fix by resolution the quorum for meetings of directors, but until otherwise fixed, a majority of the directors in office shall constitute a quorum.

ARTICLE 8. VACANCIES AND RESIGNATION In the case of a vacancy occurring in the Board of Directors, the directors then in office, by the affirmative vote of a majority of said remaining directors, so long as a quorum of the Board remains in office, may from time to time and at any time fill such vacancy for the remainder of the term.

ARTICLE 9. SOLE DIRECTOR In the case where the Corporation has only one director, the acts that may be or are required to be taken by the Board of Directors or by two directors of the Corporation, under the Corporation’s by-laws, may be taken by the sole director of the Corporation.

BY-LAW THREE

OFFICERS

ARTICLE 1. OFFICERS The directors shall elect or appoint a President, shall appoint a Secretary and may also elect or appoint as officers a Chairman of the Board, one or more Vice-Presidents, one or more Assistant-Secretaries, a Treasurer and one or more Assistant-Treasurers. Such officers shall be elected or appointed at the first meeting of the Board of Directors after each annual meeting of shareholders. There may also be appointed such other officers as the Board of Directors may from time to time deem necessary. Such officers shall respectively perform such duties, in addition to those specified in the by-laws of the Corporation, as shall from time to time be prescribed by the Board of Directors. The same person may hold more than one office, provided, however, that the same person shall not hold the office of President and Vice-President. None of such officers except the Chairman of the Board need be a director of the Corporation.

 

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ARTICLE 2. CHAIRMAN OF THE BOARD The Chairman of the Board, if any, shall preside at all meetings of directors and shareholders of the Corporation and he shall have such other powers and duties as the Board of Directors may determine from time to time.

ARTICLE 3. PRESIDENT The President shall be the chief executive officer of the Corporation and shall exercise a general control of and supervision over its affairs. He shall have such other powers and duties as the Board of Directors may determine from time to time.

ARTICLE 4. VICE-PRESIDENT OR VICE-PRESIDENTS The Vice-President or Vice-Presidents shall have such powers and duties as may be determined by the Board of Directors from time to time. In case of the absence, disability, refusal or omission to act of the President, a Vice-President designated by the directors may exercise the powers and perform the duties of the President and, if such Vice-President exercises any of the powers or performs any of the duties of the President, the absence, disability, refusal or omission to act of the President shall be presumed.

ARTICLE 5. TREASURER   AND   ASSISTANT-TREASURERS The Treasurer shall have general charge of the finances of the Corporation. He shall render to the Board of Directors, whenever directed by the Board and as soon as possible after the close of each financial year, an account of the financial condition of the Corporation and of all his transactions as Treasurer. He shall have charge and custody of and be responsible for the keeping of the books of account required under the laws governing the Corporation. He shall perform all the acts incidental to the office of Treasurer or as may be determined by the Board of Directors from time to time.

Assistant-Treasurers shall perform any of the duties of the Treasurer delegated to them from time to time by the Board of Directors or by the Treasurer.

ARTICLE 6. SECRETARY   AND   ASSISTANT-SECRETARIES The Secretary shall attend to the giving of all notices of the Corporation and shall keep the records of all meetings and resolutions of the shareholders and of the Board of Directors in a book to be kept for that purpose. He shall keep in safe custody the seal of the Corporation, if any. He shall have charge of the books containing the names and addresses of the shareholders and directors of the Corporation and such other books and papers as the Board of Directors may direct. He shall perform such other duties incidental to his office or as may be required by the Board of Directors from time to time.

Assistant-Secretaries shall perform any of the duties of the Secretary delegated to them from time to time by the Board of Directors or by the Secretary.

 

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ARTICLE 7. SECRETARY-TREASURER Whenever the Secretary shall also be the Treasurer he may, at the option of the Board of Directors, be designated the “Secretary-Treasurer”.

ARTICLE 8. REMOVAL The Board of Directors may, subject to the law and the provisions of any contract, remove and discharge any officer of the Corporation at any meeting called for that purpose and may elect or appoint any other person.

BY-LAW FOUR

SHARE CAPITAL

ARTICLE 1. SHARE CERTIFICATES Certificates representing shares of the share capital of the Corporation shall be approved by the Board of Directors. Share certificates shall bear the signatures of two directors or two officers of the Corporation or of one director and one officer of the Corporation. Such signatures may be engraved, lithographed or otherwise mechanically reproduced thereon. Any certificate bearing the facsimile reproduction of the signature of any of such authorized persons shall be deemed to have been manually signed by him and shall be as valid to all intents and purposes as if it had been manually signed, notwithstanding that the person whose signature is so reproduced shall, at the time that the certificate is issued or on the date of such certificate, have ceased to be an officer or director of the Corporation, as the case may be.

ARTICLE 2. TRANSFER OF SHARES A register of transfers containing the date and particulars of all transfers of shares of the share capital of the Corporation shall be kept either at the head office or at such other office of the Corporation or at such other place in the Province of Québec or elsewhere in Canada as may be determined, from time to time, by resolution of the Board of Directors. One or more branch registers of transfers may be kept at any office of the Corporation or any other place within the Province of Québec or elsewhere as may from time to time be determined by resolution of the Board of Directors. The date and particulars of all transfers of shares contained in a branch register of transfers must also be entered in the register of transfers. Such register of transfers and branch registers of transfers shall be kept by the Secretary or by such other officer or officers as may be specially charged with this duty or by such agent or agents as may be appointed from time to time for that purpose by resolution of the Board of Directors.

Entry of the transfer of any share of the share capital of the Corporation may be made in the register of transfers or in a branch register of transfers regardless of where the certificate representing the share to be transferred shall have been issued.

 

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If the shares of the share capital of the Corporation to be transferred are represented by a certificate, the transfer of such shares shall not be entered in the register of transfers or the branch register of transfers, unless or until the certificate representing the shares to be transferred has been duly endorsed and surrendered for cancellation.

ARTICLE 3. CLOSING OF BOOKS The Board of Directors may, from time to time, by resolution close the register of transfers and the branch registers of transfers, if any, for any time or times not exceeding in the whole 60 days in each financial year of the Corporation on giving notice by advertisement in a newspaper published in the place where the register of transfers is kept and in a newspaper published in the place where each of the branch registers of transfers is kept. The Board of Directors may by resolution fix in advance a date not exceeding 60 days preceding the date of any meeting of shareholders of the Corporation or the date for the payment of any dividend or the date for the allotment of any rights as a record date for the determination of the shareholders entitled to receive notice of any such meeting or to receive payment of any such dividend or to be allotted any such rights. Only shareholders of record on the record date so fixed shall be entitled to receive such notice or to receive payment of such dividend or to be allotted such rights, as the case may be, notwithstanding any transfer of any shares on the books of the Corporation after such record date.

ARTICLE 4. TRANSFER   AGENTS   AND   REGISTRARS The Board of Directors may appoint or remove from time to time transfer agents or registrars of transfers of shares of the share capital of the Corporation and, subject to the laws governing the Corporation, make regulations generally, from time to time, with reference to the transfer of the shares of the share capital of the Corporation. Upon any such appointment being made, all certificates representing shares of the share capital of the Corporation thereafter issued shall be countersigned by one of such transfer agents or one of such registrars of transfers and shall not be valid unless so countersigned.

BY-LAW FIVE

FINANCIAL YEAR

The financial year of the Corporation shall end on the 31 st day of December in each year. Such date may, however, be changed from time to time by resolution of the Board of Directors.

 

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BY-LAW SIX

ARTICLE 1. CONTRACTS All contracts, deeds, agreements, documents, bonds, debentures and other instruments requiring execution by the Corporation may be signed by two directors or two officers of the Corporation or by one director and one officer of the Corporation or by such persons as the Board of Directors may otherwise authorize from time to time by resolution. Any such authorization may be general or confined to specific instances.

ARTICLE 2. CONFLICT OF INTERESTS The Corporation may transact business with one or more of its directors or with any firm of which one or more of its directors are members or employees or with any corporation or association of which one or more of its directors are shareholders, directors, officers or employees. The director who has an interest in such transaction shall disclose it to the Corporation and to the other directors making a decision in respect of such transaction and shall abstain from discussing and voting on the question except if his vote is required to bind the Corporation in respect of such transaction.

BY-LAW SEVEN

DECLARATIONS

Any director or officer of the Corporation or any other person nominated for that purpose by any director or officer of the Corporation is authorized and empowered to give instructions to an attorney, for civil or for criminal, to appear and make answer for and on behalf and in the name of the Corporation to all writs, orders and interrogatories upon articulated facts issued out of any court and to declare for and on behalf and in the name of the Corporation any answer to writs of attachment by way of garnishment in which the Corporation is garnishee. Any director, officer or person so nominated is authorized and empowered to make all affidavits and sworn declarations in connection therewith or in connection with any and all judicial proceedings to which the Corporation is a party and to instruct an attorney to make demands of abandonment or petitions for winding-up or bankruptcy orders upon any debtor of the Corporation and to attend and vote at all meetings of creditors of the Corporation’s debtors and grant proxies in connection therewith. Any such director, officer or person is authorized to appoint by general or special power or powers of attorney any person or persons, including any person other than those directors, officers and persons hereinbefore mentioned, as attorney or attorneys of the Corporation to do any of the foregoing things.

 

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BY-LAW EIGHT

SEAL

The seal of the Corporation, if any, may be affixed by any director or officer of the Corporation or by any person designated by such director or officer.

BY-LAW NINE

REGULATION 45-106

ARTICLE 1. NUMBER OF HOLDERS OF SHARES AND SECURITIES The beneficial ownership of securities of the Corporation, including its shareholders, shall be limited to fifty (50) persons, not including employees and former employees of the Corporation or its affiliates, provided that each person is counted as one beneficial owner unless the person is created or used solely to purchase or hold securities of the Corporation in which case each beneficial owner or each beneficiary of the person, as the case may be, must be counted as a separate beneficial owner

ARTICLE 2. ISSUE OF SECURITIES  The directors, by way of resolution, may accept subscriptions for securities, allot or issue securities of the Company at such times, on such terms and conditions, to such persons and for such consideration as they see fit.

ARTICLE 3. PRIVATE ISSUER STATUS The directors shall use their best efforts to ensure that the Corporation remains a private issuer and complies with the provisions of the Regulation 45-106 .

ARTICLE 4. DECLARATION OF SUBSCRIBER Any person who subscribes shares or other securities issued by the Corporation shall declare to the Corporation that this subscription is exempted from prospectus and registration requirements pursuant to section 2.4 of the Regulation 45-106

ARTICLE 5. DECLARATION OF TRANSFEREE Any person who purchases shares or other securities of the Corporation shall declare that his acquisition is exempted from prospectus and registration requirements pursuant to the Regulation 45-106 .

ARTICLE 6. COMMISSION No commission or other remuneration, including a finder’s fee, shall be paid in connection with the sale of shares or other securities to a director, executive officer, control person or founder of the Corporation or of an affiliate of the Company.

 

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ADOPTED on February 15, 2016.
The President,

/s/ Benjamin Desmarais

Benjamin Desmarais
The Corporate Secretary

/s/ Marc M. Tremblay

Marc M. Tremblay

 

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BY-LAW TEN

BORROWING POWERS

The administrators of the Corporation are hereby authorized, when to their best judgment, it is in the best interest of the Corporation to:

 

  (a) borrow money on the credit of the Corporation from any bank, corporation, firm, association or individual, in the amount and in the conditions the Board of directors sees fit, and in the best interest of the Corporation;

 

  (b) increase or decrease the amount to be borrowed;

 

  (c) issue or have issued, sell or pledge bonds, debentures, notes or other debt obligations of the Corporation as by the terms, agreements and conditions and for the sums as seen fit by the Board of directors;

 

  (d) hypothecate movable and immovable property of the Corporation currently owned or subsequently acquired to secure payment or performance of an obligation or other debt obligations of the Corporation;

 

  (e) mortgage, hypothecate, charge, pledge or otherwise create a security interest in all or any currently owned or subsequently acquired movable and immovable property of the Corporation to secure such bonds, debentures, notes or other debt obligations, other than those contracted by the issuing of bonds or other securities;

 

  (f) provide a guarantee on behalf of the Corporation to secure payment of all debt obligations such as borrowed monies, debentures, notes, credits, overdraft advances, or other debts in favour of a bank, corporation, firm or person, including interest, hypothecate and provide to any bank, corporation, firm or any individual, all or any one of the Corporation property, movable or immovable, currently owned or subsequently acquired and provide guarantees that may be accepted by a bank in virtue of the different sections of the Bank Act, renew, modify or substitute such guarantees from time to time, with the authority to contract promises, to provide guarantees in virtue of the Bank Act related to any current debt or subsequently contracted by the Corporation with any bank;

 

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  (g) the Board of directors may from time to time, by resolution, delegate to any one or more directors or officers all or any of the powers conferred on the directors by paragraph 1 of this by-law to the full extent thereof or such lesser extent as the directors may in any such resolution provide;

AND the powers hereby conferred shall be deemed to be permanent and not subject to cease after the first exercise. Such powers can be used from time to time as long as they are not revoked by a written resolution.

 

ADOPTED on February 15, 2016.  
The President,  

/s/ Benjamin Desmarais

 
Benjamin Desmarais  
The Corporate Secretary  

/s/ Marc M. Tremblay

 
Marc M. Tremblay  

 

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Exhibit 1.30

 

LOGO


LOGO


LOGO


LOGO


SCHEDULE 1

The Corporation is authorized to issue (i) an unlimited number of each of the following classes of shares without par value: Class A shares (the “ Class A Shares ”), Class B shares (the “ Class B Shares ”), Class C shares (the “ Class C Shares ”) and Class D shares (the “ Class D Shares ”). The rights and restrictions attaching to the Class A Shares, the Class B Shares, the Class C Shares and the Class D Shares are as follows:

 

1. VOTING RIGHTS

 

1.1. Voting Shares . The holders of Class A Shares, Class B Shares and Class C Shares (collectively, the “Voting Shares”) shall be entitled to receive notice of, attend and vote at, on the basis of one vote per share, all meetings of shareholders, with the exception of meetings at which only holders of specified classes of shares are entitled to vote.

 

1.2. Single Class . Subject to the provisions of the Canada Business Corporations Act (the “Act”), the holders of the Voting Shares shall vote together as a single class on all matters submitted to a vote that requires the consent of shareholders.

 

1.3. Class D Shares . The holders of Class D Shares shall not be entitled to receive notice of, to attend, or to vote at meetings of shareholders, except as specifically provided for in the Act.

 

2. RIGHT TO DIVIDENDS

 

2.1. The holders of Class A Shares, Class B Shares, Class C Shares and Class D Shares (collectively, the “Shares”) shall be entitled to participate in the property, profits and surplus assets of the Corporation and, for that purpose, to receive dividends, as and when declared by the board of directors of the Corporation out of funds legally available therefor, on a pari passu basis. Any declaration or payment of dividends to the holders of Shares shall be made rateably, based on the number of Shares held by each of them.

 

2.2. No dividends shall be declared or paid with respect to any of the Class A Shares, Class B Shares, Class C Shares or Class D Shares unless such dividends are also declared or paid in respect of each of the other classes of Shares on a pari passu basis as provided for in Section 2.1.

 

3. DISTRIBUTION OF ASSETS

 

3.1. Class C Preferred Amount . The holders of Class C Shares are entitled, in priority to any distribution of the property or assets of the Corporation to the holders of Class A Shares, Class B Shares and Class D Shares, to receive, upon liquidation, dissolution or winding-up of the Corporation, whether voluntary or involuntary, the aggregate amount of $100 (the “Class C Preferred Amount”). The Class C Preferred Amount shall be distributed among the holders of Class C Shares rateably, based on the number of Class C Shares held by each of them.

 

  

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   SHARE CAPITAL


3.2. Class B Preferred Amount . Once the payment of the Class C Preferred Amount to the holders of Class C Shares is fully satisfied, the holders of Class B Shares are entitled, in priority to any distribution of the property or assets of the Corporation to the holders of Class A Shares, Class C Shares (except for the Class C Preferred Amount) and Class D Shares, to receive, upon liquidation, dissolution or winding-up of the Corporation, whether voluntary or involuntary, the aggregate amount of $150 (the “Class B Preferred Amount”). The Class B Preferred Amount shall be distributed among the holders of Class B Shares rateably, based on the number of Class B Shares held by each of them.

 

3.3. Remaining Property . Once the payments of the Class C Preferred Amount and of the Class B Preferred Amount to, respectively, the holders of Class C Shares and the holders of Class B Shares are fully satisfied, the remaining property of Corporation shall be distributed, upon liquidation or dissolution of the Corporation, rateably among the holders of Shares, based on the number of Shares held by each of them.

 

4. CONVERSION

 

4.1. Conversion upon a Qualified IPO or upon a Class A Majority Consent . Immediately prior to or contemporaneously with the closing of a Qualified IPO, all but not less than all of the Class B Shares, Class C Shares and Class D Shares (collectively, the “ Convertible Shares ”) will automatically be converted into such number of fully paid and non-assessable Class A Shares as is determined in accordance with Sections 4.4 and 4.5. In addition, upon the decision of a Class A Majority Consent to that effect, all but not less than all of the Convertible Shares will automatically be converted into the number of fully paid and non-assessable Class A Shares determined in accordance with Sections 4.4 and 4.5.

 

4.2.

Mechanics of Conversion. Upon the conversion of any Convertible Shares into Class A Shares under Section 4.1, all the then outstanding Convertible Shares shall be automatically converted into Class A Shares without any further action by the holders thereof and whether or not the certificates representing such shares are surrendered to the Corporation or its transfer agent; provided , however, that all holders of Convertible Shares being converted shall be given written notice of the occurrence of an event specified in Section 4.1 including the date such event occurred. Upon the occurrence of such automatic conversion, each holder must surrender the share certificate or certificates formerly representing that holder’s Convertible Shares at the principal office of the Corporation or the office of any transfer agent for the Class A Shares. Upon receipt by the Corporation of the share certificate or certificates, the Corporation will issue and deliver to such holder, promptly at the office and in the name shown on the surrendered share certificate or certificates, a share certificate or certificates for the number of Class A Shares into which the Convertible Shares are converted, together with cash in respect of (i) any fractional Class A Shares issuable upon such conversion as contemplated in Section 4.3, and, if applicable, and (ii) any declared but unpaid dividends thereon. The Corporation is not required to issue share certificates evidencing the Class A Shares issuable upon the automatic conversion of Convertible Shares until share certificates formerly evidencing the Convertible Shares

 

  

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   SHARE CAPITAL


  are either delivered to the Corporation or its transfer agent, or the holder notifies the Corporation or such transfer agent that such share certificates have been lost, stolen or destroyed, and executes and delivers an agreement to indemnify the Corporation from any loss incurred by the Corporation in connection with the loss, theft or destruction.

 

4.3. Fractional Shares. No fractional Class A Shares shall be issued upon the conversion of Convertible Shares. All Class A Shares (including fractions) issuable upon conversion of more than one Convertible Share by its holder shall be aggregated for the purpose of determining whether the conversion results in the issuance of any fractional Class A Share. If such is the case, the Corporation shall, instead of issuing any fractional Class A Share, pay an amount in cash equal to the product of such fraction multiplied by the Class A Share’s fair market value on the date of conversion as determined in good faith by the board of directors of the Corporation.

 

4.4. Conversion Calculation for Convertible Shares . Each Convertible Share is convertible, subject to the terms and conditions of these Articles, for the number of fully paid and non-assessable Class A Shares determined by the conversion ratio (the “ Conversion Ratio ”) applicable to it. Immediately after the issuance of a Convertible Share, its initial Conversion Ratio will be one, and will subsequently be adjusted as provided for herein (and otherwise to reflect any equitable adjustments required further to stock splits and similar capital reorganizations).

 

4.5. Adjustment for Amalgamation or Reorganization. In case of any amalgamation, reorganization, capital reorganization, reclassification or recapitalization of the share capital of the Corporation, change of control or merger, arrangement or other transaction involving the Corporation and any other entity, each Convertible Share shall thereafter be convertible into (or shall be converted into a security which shall be convertible into or exchangeable for) the kind and amount of shares, or other securities, or property that its holder would have received as holder of Class A Shares if such Convertible Share had been converted immediately prior to such event. In such case, appropriate adjustments (as determined in good faith by the board of directors of the Corporation), including adjustments to the Conversion Ratio, as applicable, shall be made in the application of the provisions of this Section 4.5 with respect to the rights thereafter of the holders of Convertible Shares, in relation to any shares, securities or other property thereafter deliverable upon the conversion of the Convertible Shares. Notwithstanding the foregoing, in the event that adjustments contemplated in this Section 4.5 with respect to a class of the Voting Shares differ from adjustments proposed to be made with respect to other classes of Voting Shares, such adjustments shall, in addition to the prior approval of the board of directors of the Corporation, require the approval of a Special Majority (which Special Majority shall exclude the holders of the Class A Shares at the time the adjustment is being considered).

 

4.6.

Certificate of Adjustment. In each case of an adjustment to the Conversion Ratio for any Convertible Shares, or to the number of Class A Shares or other securities issuable upon the conversion of Convertible Shares, the Corporation , at its expense, shall compute such adjustment in accordance with the provisions hereof and prepare a certificate showing such adjustment. Within five (5) days of the effective date of such adjustment the Corporation shall mail such certificate, by first class mail, postage prepaid, to each registered holder of Convertible Shares at the holder’s address as shown in the Corporation’s books or deliver it in any other manner and at such other

 

  

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   SHARE CAPITAL


  address as indicated to the Corporation in writing by such holder. The certificate shall also show in reasonable detail the facts and calculations upon which such adjustment is based.

 

4.7. For the purposes hereof:

 

  4.7.1. “Class A Majority Consent” means a consent in writing executed by such number of shareholders of record of Class A Shares holding more than 50% of the issued and outstanding Class A Shares at any relevant time;

 

  4.7.2. Qualified IPO ” means an underwritten initial public offering or offerings of voting and participating Shares of the share capital of the Corporation (for the purposes of this Section, the “Common Shares” ) (i) pursuant to a prospectus under the Securities Act (Quebec), as amended, or similar document filed under other applicable securities laws in Canada or the United States of America, covering the offer and sale to the public of the Common Shares, which are to be listed on a recognized stock exchange such as the Toronto Stock Exchange or the New York Stock Exchange or are quoted on the NASDAQ or any combination thereof, generating net proceeds to the Corporation of at least $70 million, with a pre-money valuation of the Corporation of at least $350 million, or (ii) approved by a Special Majority.

 

5. OTHER PROVISIONS

 

5.1. Separate Class Votes . Holders of Shares of any class shall not be entitled to vote separately as a class, and to exercise dissent rights under section 190 of the Act, upon a proposal to amend the articles (whether by articles of amendment or articles of amalgamation) of the Corporation to: (i) increase any maximum number of authorized shares of a class having rights or privileges equal or superior to the Shares of such class, (ii) create a new class or series of Shares equal or superior to the Shares of such class, and (iii) effect an exchange, reclassification or cancellation of the Shares of such class, unless the Voting Shares are not treated proportionally and in the same manner pursuant to such exchange, reclassification or cancellation.

 

5.2. Restrictions on Subdivision and Consolidation . Neither the Class A Shares, the Class B Shares, the Class C Shares nor the Class D Shares shall be subdivided, consolidated, reclassified or otherwise changed unless, contemporaneously therewith, all other classes of Shares are subdivided, consolidated, reclassified or otherwise changed (each, a “Change”) in the same proportion and in the same manner, except to the extent that the Class D Shares may remain non-voting following any such Change, (b) the Class B Preferred Amount and the Class C Preferred Amount may be maintained following such Change.

 

  

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   SHARE CAPITAL


SCHEDULE A

The Corporation is authorized to issue an unlimited number of the following Class E Preferred Shares:

(E) CLASS E PREFERRED SHARES: The number of Class E Preferred Shares is unlimited, and the consideration paid into the subdivision of the issued and paid-up share capital account relating to such shares is also unlimited; Class E Preferred Shares shall have no par value and shall carry the following rights, privileges, conditions and restrictions:

(1) Ranking of Class E Preferred Shares. Class E Preferred Shares shall have priority over the Class A Shares, Class B Shares, Class C Shares and Class D Shares with respect to the order of payment of dividends and the distribution of the assets of the Corporation in the event of the liquidation, winding-up or dissolution of the Corporation, whether or not voluntary, or any other distribution of the assets of the Corporation among its shareholders for the purpose of winding up its affairs.

(2) Right to Dividends. The holders of Class E Preferred Shares shall be entitled to receive, every year, in such manner and at such time as the Board of Directors may declare, a non-cumulative dividend at the fixed rate of 1% per month, calculated on the redemption price of the Class E Preferred Shares, payable in cash, property or through the issuance of fully paid shares of any class of the Corporation, in priority over the Class A Shares, Class B Shares, Class C Shares and Class D Shares.

(3) Repayment. If, for any reason, including in the event of dissolution or liquidation or winding-up of the Corporation, whether or not voluntary, some or all of the assets of the Corporation are distributed among the shareholders, each holder of Class E Preferred Shares shall be entitled to repayment of the amount paid for the Class E Preferred Shares into the subdivision of the issued and paid-up share capital account relating to the Class E Preferred Shares, in priority over the Class A Shares, Class B Shares, Class C Shares and Class D Shares.

(4) No Voting Right. Subject to the provisions of the Canada Business Corporations Act or as otherwise expressly provided, the holders of Class E Preferred Shares shall not be entitled to receive notice of, attend or vote at the meeting of shareholders of the Corporation.

(5) Redemption Right. The Corporation shall be entitled, at its discretion, subject to the provisions of the Canada Business Corporations Act in this regard, to redeem at any time all or from time to time part of the Class E Preferred Shares then outstanding upon giving notice to that effect, on payment to the holders of the Class E Preferred Shares of an aggregate redemption price equal to the consideration received by the Corporation at the time the Class E Preferred Shares were issued.

 

Page 1 of 3


The Corporation shall, at least one (1) business day prior to the date fixed for redemption (the “Redemption Date”), give written notice, to each then registered holder of Class E Preferred Shares, of the Corporation’s intention to redeem such shares. Such notice shall set out the date and place at which the redemption is to take place and where payment is to occur and, in the case of partial redemption, the number of shares of each such holder of Class E Preferred Shares to be redeemed. If notice of redemption is given as aforesaid and an amount sufficient to redeem the Class E Preferred Shares called for redemption is deposited with the Corporation’s bankers or at any other place specified in the notice, on or before the Redemption Date, the holders of Class E Preferred Shares shall, after the Redemption Date, no longer have any right in or against the Corporation, except the right to receive payment of the Redemption Price and any accrued but unpaid dividends on such Class E Preferred Shares being redeemed, upon presentation and surrender of the certificates representing such number of shares to be redeemed.

(6) Retraction Right. Subject to paragraph two of Section 36 of the Canada Business Corporations Act , each holder of Class E Preferred Shares shall be entitled, at any time and at such holder’s discretion, upon written notice, to require the Corporation to redeem all or part of such holder’s shares at a price equal to the “Redemption Value,” as described below, plus the amount of dividends declared but unpaid, if any, on the Class E Preferred Shares.

(a) Redemption Value

The “Redemption Value” of each share corresponds to the amount paid for such share into the subdivision of the issued and paid-up share capital account relating to the Class E Preferred Shares, plus a premium equal to the amount by which the fair market value of the consideration received by the Corporation at the time such Class E Preferred Share was issued exceeds the total of:

(i) the amount paid for such share into the subdivision of the issued and paid-up share capital account relating to the Class E Preferred Shares; and

(ii) the fair market value of any property, other than a Class E Preferred Share, given by the Corporation in payment of such consideration.

(b) Determination of Fair Market Value of the Consideration

Upon issuance of the Class E Preferred Shares, the Corporation and each subscriber of Class E Preferred Shares shall determine, by mutual consent and in good faith, based on a method deemed fair and reasonable, the fair market value of each of the assets that form part of the consideration received by the Corporation at the time the Class E Preferred Shares are issued.

 

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(c) Adjustment of the Premium in Case of a Disagreement with the Department of Revenue

In the event of a disagreement with the federal or provincial department of revenue, or both, with respect to the appraisal of the fair market value of one or more of the assets that form part of the consideration received by the Corporation at the time the Class E Preferred Shares are issued, the appraisal by such department shall prevail. The amount of the premium relating to the redemption of the Class E Preferred Shares shall be adjusted accordingly if the department in question provides the Corporation and each holder of Class E Preferred Shares, or, where all of the shares are redeemed, the Corporation and each former holder of Class E Preferred Shares, with the opportunity to contest the appraisal with the department or before the courts. Where the federal and provincial appraisals differ, the amount of the premium shall be equal to the lower appraisal established in accordance with an uncontested assessment or another final judgment, as the case may be.

If, before the Redemption Value provided for in the foregoing sentence is adjusted, the Corporation pays, in cash or any other form of consideration, to a holder of Class E Preferred Shares, in connection with a redemption, retraction or purchase of Class E Preferred Shares, a sum for the Class E Preferred Shares that differs from the adjusted Redemption Value, the holder or the Corporation, as the case may be, shall immediately pay to the holder or the Corporation, as the case may be, the difference between the amount paid in connection with the redemption, retraction or purchase and the adjusted Redemption Value. Moreover, if, at the time of the adjustment, dividends have already been declared and paid on the Class E Preferred Shares, such dividends shall be adjusted so as to reflect the adjustment of the Redemption Value.

(7) Right to Purchase by Private Agreement. Subject to Section 34 of the Canada Business Corporations Act , the Corporation may, at any time, without giving notice and without taking into consideration the other classes of shares, purchase by private agreement and at the best possible price all or part of the issued and outstanding Class E Preferred Shares. However, such purchase price shall never exceed the Redemption Value mentioned above or the book value of the net assets of the Corporation.

 

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Exhibit 1.31

[TRANSLATION]

F IBRENOIRE INC .

(the “Corporation”)

GENERAL BY-LAWS

BY-LAW ONE

SHAREHOLDERS

ARTICLE 1. ANNUAL MEETINGS The annual meeting of shareholders of the Corporation shall be held at such place, on such date and at such time as the Board of Directors may determine from time to time. Annual meetings of shareholders may be called at any time by order of the Board of Directors, the Chairman of the Board or, provided they are directors of the Corporation, the President or any Vice-President.

ARTICLE 2. SPECIAL GENERAL MEETINGS Special general meetings of shareholders shall be held at such place, on such date and at such time as the Board of Directors may determine from time to time or at any place where all the shareholders of the Corporation entitled to vote thereat are present in person or represented by proxy or at such other place as all the shareholders of the Corporation shall approve in writing.

Special general meetings of shareholders may be called at any time by order of the Board of Directors, the Chairman of the Board or, provided they are directors of the Corporation, the President or any Vice-President.

ARTICLE 3. NOTICE OF MEETING A notice specifying the place, date, time and purpose of any meeting of shareholders shall be given to all the shareholders entitled thereto at least 21 days but not more than 60 days prior to the date fixed for the meeting. The notice may be mailed, postage prepaid, to the shareholders at their respective addresses as they appear on the books of the Corporation or delivered by hand or transmitted by any means of telecommunication.

If the convening of a meeting of shareholders is a matter of urgency, notice of such meeting may be given not less than 48 hours before such meeting is to be held.

In the case of joint holders of a share, the notice of meeting shall be given to that one of them whose name stands first in the books of the Corporation and notice so given shall be sufficient notice to all the joint holders.


Irregularities in the notice or in the giving thereof as well as the unintentional omission to give notice to, or the non-receipt of any such notice by, any of the shareholders shall not invalidate any action taken by or at any such meeting.

ARTICLE 4. CHAIRMAN The Chairman of the Board or, in his absence, the President, if he is a director, or, in his absence, one of the Vice-Presidents who is a director of the Corporation (to be designated by the meeting in the event of more than one such Vice-President being present) shall preside at all meetings of shareholders. If all of the aforesaid officers be absent or decline to act, the persons present and entitled to vote may choose one of their number to act as chairman of the meeting. In the event of an equality of votes, the chairman of any meeting shall not be entitled to a casting vote in respect of any matter submitted to the vote of the meeting.

ARTICLE 5. QUORUM, VOTING AND ADJOURNMENTS The holder or holders of not less than 50% of the outstanding shares of the share capital of the Corporation carrying voting rights at such meeting, present in person or represented by proxy, shall constitute a quorum for any meeting of shareholders of the Corporation.

The acts of the holders of a majority of the shares so present or represented and carrying voting rights thereat shall be the acts of all the shareholders except as to matters on which the vote or consent of the holders of a greater number of shares is required or directed by the laws governing the Corporation, the constituting act or the by-laws of the Corporation.

Should a quorum not be present at any meeting of shareholders, those present in person and entitled to be counted for the purpose of forming a quorum shall have power to adjourn the meeting from time to time and from place to place without notice other than announcement at the meeting until a quorum shall be present. At any such adjourned meeting, provided a quorum is present, any business may be transacted which might have been transacted at the meeting adjourned.

ARTICLE 6. RIGHT TO VOTE AND PROXY At all meetings of shareholders, each shareholder present and entitled to vote thereat shall have on a show of hands one vote and, upon a poll, each shareholder present in person or represented by proxy shall be entitled to one vote for each share carrying voting rights registered in his name in the books of the Corporation unless, under the terms of the constituting act some other scale of voting is fixed, in which event such scale of voting shall be adopted. Any shareholder or proxy may demand a ballot (either before or on the declaration of the result of a vote upon a show of hands) in respect of any matter submitted to the vote of the shareholders.

 

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In the case of joint holders of a share, the vote of the senior who tenders a vote, whether in person or by proxy, shall be accepted to the exclusion of the votes of the other joint holders, and for this purpose seniority shall be determined by the order in which the names stand in the books of the Corporation.

ARTICLE 7. SCRUTINEERS The chairman at any meeting of shareholders may appoint one or more persons, who need not be shareholders, to act as scrutineer or scrutineers at the meeting.

ARTICLE 8. ADDRESSES   OF   SHAREHOLDERS Every shareholder shall furnish to the Corporation an address to which all notices intended for such shareholder shall be given, failing which, any such notice may be given to him at any other address appearing on the books of the Corporation. If no address appears on the books of the Corporation, such notice may be sent to such address as the person sending the notice may consider to be the most likely to result in such notice promptly reaching such shareholder.

BY-LAW TWO

BOARD OF DIRECTORS

ARTICLE 1. ELECTION OF DIRECTORS AND TERM OF OFFICE Except as herein otherwise provided, each director shall be elected at an annual meeting of shareholders or at any special general meeting of shareholders called for that purpose, by a majority of the votes cast in respect of such election. It shall not be necessary that the voting for the election of directors of the Corporation be conducted by ballot unless voting by ballot is requested by a shareholder or proxy. Each director so elected shall hold office until the election of his successor unless he shall resign or his office become vacant by death, removal or other cause.

ARTICLE 2. ACTS OF DIRECTORS All acts done by the directors or by any person acting as a director, until their successors have been duly elected or appointed, shall, notwithstanding that it be afterwards discovered that there was some defect in the election of the directors or such person acting as aforesaid or that they or any of them were disqualified, be as valid as if the directors or such other person, as the case may be, had been duly elected and were qualified to be directors of the Corporation.

ARTICLE 3. POWER TO ALLOT STOCK AND GRANT OPTIONS Subject to the provisions of the constituting act of the Corporation, the shares of the Corporation shall be at all times under the control of the directors who may by resolution, from time to time, accept subscriptions, allot, issue, grant options in respect of or otherwise dispose of the whole or any part of the unissued shares of the

 

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share capital of the Corporation on such terms and conditions, for such consideration not contrary to law or to the constituting act of the Corporation and at such times prescribed in such resolutions. The directors may, from time to time, make calls upon the shareholders in respect of any moneys unpaid upon their shares. Each shareholder shall pay the amount called on his shares at the time and place fixed by the directors.

ARTICLE 4. POWER   TO   DECLARE   DIVIDENDS The directors may from time to time as they may deem advisable, declare and pay dividends out of any funds available for dividends to the shareholders according to their respective rights and interest therein.

Any dividend may be paid by cheque or warrant made payable to and mailed to the address on the books of the Corporation of the shareholder entitled thereto and in the case of joint holders to that one of them whose name stands first in the books of the Corporation, and the mailing of such cheque or warrant shall constitute payment unless the cheque or warrant is not paid upon presentation.

ARTICLE 5. PLACE   OF   MEETINGS   AND   NOTICES All meetings of the Board of Directors shall be held at such place, on such date and at such time as may be determined from time to time by the Board of Directors or at any place where all the directors are present.

Any meeting of the Board of Directors may be called at any time by or on the order of the Chairman of the Board or, provided they are directors of the Corporation, the President or any Vice-President or by any two directors.

Notice specifying the place, date and time of any meeting of the Board of Directors shall be given to each of the directors at least 72 hours prior to the date fixed for such meeting. The notice may be mailed, postage prepaid, to each director at his residence or usual place of business, or delivered by hand or transmitted by any means of telecommunication.

In any case where the convening of a meeting of directors is a matter of urgency, notice of such meeting may be given not less than 3 hours before such meeting is to be held.

Notwithstanding any other provisions of this ARTICLE 5, immediately after the annual meeting of shareholders in each year, a meeting of such of the newly elected directors as are then present shall be held, provided they shall constitute a quorum, without further notice, for the election or appointment of officers of the Corporation and the transaction of such other business as may come before them.

 

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ARTICLE 6. CHAIRMAN The Chairman of the Board or, in his absence, the President, if he is a director, or, in his absence, one of the Vice-Presidents who is a director of the Corporation (to be designated by the meeting in the event of more than one such Vice-President being present) shall preside at all meetings of the directors. If all of the aforesaid officers are absent or decline to act, the directors present may choose one of their number to act as chairman of the meeting. In the event of an equality of votes, the chairman of any meeting shall be entitled to cast one vote as a director, but not a second or casting vote in respect of any matter submitted to the vote of the meeting.

ARTICLE 7. QUORUM Except when the Corporation has only one director, the directors may from time to time fix by resolution the quorum for meetings of directors, but until otherwise fixed, a majority of the directors in office shall constitute a quorum.

ARTICLE 8. VACANCIES AND RESIGNATION In the case of a vacancy occurring in the Board of Directors, the directors then in office, by the affirmative vote of a majority of said remaining directors, so long as a quorum of the Board remains in office, may from time to time and at any time fill such vacancy for the remainder of the term.

ARTICLE 9. SOLE DIRECTOR In the case where the Corporation has only one director, the acts that may be or are required to be taken by the Board of Directors or by two directors of the Corporation, under the Corporation’s by-laws, may be taken by the sole director of the Corporation.

BY-LAW THREE

OFFICERS

ARTICLE 1. OFFICERS The directors shall elect or appoint a President, shall appoint a Secretary and may also elect or appoint as officers a Chairman of the Board, one or more Vice-Presidents, one or more Assistant-Secretaries, a Treasurer and one or more Assistant-Treasurers. Such officers shall be elected or appointed at the first meeting of the Board of Directors after each annual meeting of shareholders. There may also be appointed such other officers as the Board of Directors may from time to time deem necessary. Such officers shall respectively perform such duties, in addition to those specified in the by-laws of the Corporation, as shall from time to time be prescribed by the Board of Directors. The same person may hold more than one office, provided, however, that the same person shall not hold the office of President and Vice-President. None of such officers except the Chairman of the Board need be a director of the Corporation.

 

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ARTICLE 2. CHAIRMAN OF THE BOARD The Chairman of the Board, if any, shall preside at all meetings of directors and shareholders of the Corporation and he shall have such other powers and duties as the Board of Directors may determine from time to time.

ARTICLE 3. PRESIDENT The President shall be the chief executive officer of the Corporation and shall exercise a general control of and supervision over its affairs. He shall have such other powers and duties as the Board of Directors may determine from time to time.

ARTICLE 4. VICE-PRESIDENT OR VICE-PRESIDENTS The Vice-President or Vice-Presidents shall have such powers and duties as may be determined by the Board of Directors from time to time. In case of the absence, disability, refusal or omission to act of the President, a Vice-President designated by the directors may exercise the powers and perform the duties of the President and, if such Vice-President exercises any of the powers or performs any of the duties of the President, the absence, disability, refusal or omission to act of the President shall be presumed.

ARTICLE 5. TREASURER   AND   ASSISTANT-TREASURERS The Treasurer shall have general charge of the finances of the Corporation. He shall render to the Board of Directors, whenever directed by the Board and as soon as possible after the close of each financial year, an account of the financial condition of the Corporation and of all his transactions as Treasurer. He shall have charge and custody of and be responsible for the keeping of the books of account required under the laws governing the Corporation. He shall perform all the acts incidental to the office of Treasurer or as may be determined by the Board of Directors from time to time.

Assistant-Treasurers shall perform any of the duties of the Treasurer delegated to them from time to time by the Board of Directors or by the Treasurer.

ARTICLE 6. SECRETARY   AND   ASSISTANT-SECRETARIES The Secretary shall attend to the giving of all notices of the Corporation and shall keep the records of all meetings and resolutions of the shareholders and of the Board of Directors in a book to be kept for that purpose. He shall keep in safe custody the seal of the Corporation, if any. He shall have charge of the books containing the names and addresses of the shareholders and directors of the Corporation and such other books and papers as the Board of Directors may direct. He shall perform such other duties incidental to his office or as may be required by the Board of Directors from time to time.

Assistant-Secretaries shall perform any of the duties of the Secretary delegated to them from time to time by the Board of Directors or by the Secretary.

 

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ARTICLE 7. SECRETARY-TREASURER Whenever the Secretary shall also be the Treasurer he may, at the option of the Board of Directors, be designated the “Secretary-Treasurer”.

ARTICLE 8. REMOVAL The Board of Directors may, subject to the law and the provisions of any contract, remove and discharge any officer of the Corporation at any meeting called for that purpose and may elect or appoint any other person.

BY-LAW FOUR

SHARE CAPITAL

ARTICLE 1. SHARE CERTIFICATES Certificates representing shares of the share capital of the Corporation shall be approved by the Board of Directors. Share certificates shall bear the signatures of two directors or two officers of the Corporation or of one director and one officer of the Corporation. Such signatures may be engraved, lithographed or otherwise mechanically reproduced thereon. Any certificate bearing the facsimile reproduction of the signature of any of such authorized persons shall be deemed to have been manually signed by him and shall be as valid to all intents and purposes as if it had been manually signed, notwithstanding that the person whose signature is so reproduced shall, at the time that the certificate is issued or on the date of such certificate, have ceased to be an officer or director of the Corporation, as the case may be.

ARTICLE 2. TRANSFER OF SHARES A register of transfers containing the date and particulars of all transfers of shares of the share capital of the Corporation shall be kept either at the head office or at such other office of the Corporation or at such other place in the Province of Québec or elsewhere in Canada as may be determined, from time to time, by resolution of the Board of Directors. One or more branch registers of transfers may be kept at any office of the Corporation or any other place within the Province of Québec or elsewhere as may from time to time be determined by resolution of the Board of Directors. The date and particulars of all transfers of shares contained in a branch register of transfers must also be entered in the register of transfers. Such register of transfers and branch registers of transfers shall be kept by the Secretary or by such other officer or officers as may be specially charged with this duty or by such agent or agents as may be appointed from time to time for that purpose by resolution of the Board of Directors.

Entry of the transfer of any share of the share capital of the Corporation may be made in the register of transfers or in a branch register of transfers regardless of where the certificate representing the share to be transferred shall have been issued.

 

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If the shares of the share capital of the Corporation to be transferred are represented by a certificate, the transfer of such shares shall not be entered in the register of transfers or the branch register of transfers, unless or until the certificate representing the shares to be transferred has been duly endorsed and surrendered for cancellation.

ARTICLE 3. CLOSING OF BOOKS The Board of Directors may, from time to time, by resolution close the register of transfers and the branch registers of transfers, if any, for any time or times not exceeding in the whole 60 days in each financial year of the Corporation on giving notice by advertisement in a newspaper published in the place where the register of transfers is kept and in a newspaper published in the place where each of the branch registers of transfers is kept. The Board of Directors may by resolution fix in advance a date not exceeding 60 days preceding the date of any meeting of shareholders of the Corporation or the date for the payment of any dividend or the date for the allotment of any rights as a record date for the determination of the shareholders entitled to receive notice of any such meeting or to receive payment of any such dividend or to be allotted any such rights. Only shareholders of record on the record date so fixed shall be entitled to receive such notice or to receive payment of such dividend or to be allotted such rights, as the case may be, notwithstanding any transfer of any shares on the books of the Corporation after such record date.

ARTICLE 4. TRANSFER   AGENTS   AND   REGISTRARS The Board of Directors may appoint or remove from time to time transfer agents or registrars of transfers of shares of the share capital of the Corporation and, subject to the laws governing the Corporation, make regulations generally, from time to time, with reference to the transfer of the shares of the share capital of the Corporation. Upon any such appointment being made, all certificates representing shares of the share capital of the Corporation thereafter issued shall be countersigned by one of such transfer agents or one of such registrars of transfers and shall not be valid unless so countersigned.

BY-LAW FIVE

FINANCIAL YEAR

The financial year of the Corporation shall end on the 31 st day of December in each year. Such date may, however, be changed from time to time by resolution of the Board of Directors.

 

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BY-LAW SIX

ARTICLE 1. CONTRACTS All contracts, deeds, agreements, documents, bonds, debentures and other instruments requiring execution by the Corporation may be signed by two directors or two officers of the Corporation or by one director and one officer of the Corporation or by such persons as the Board of Directors may otherwise authorize from time to time by resolution. Any such authorization may be general or confined to specific instances.

ARTICLE 2. CONFLICT OF INTERESTS The Corporation may transact business with one or more of its directors or with any firm of which one or more of its directors are members or employees or with any corporation or association of which one or more of its directors are shareholders, directors, officers or employees. The director who has an interest in such transaction shall disclose it to the Corporation and to the other directors making a decision in respect of such transaction and shall abstain from discussing and voting on the question except if his vote is required to bind the Corporation in respect of such transaction.

BY-LAW SEVEN

DECLARATIONS

Any director or officer of the Corporation or any other person nominated for that purpose by any director or officer of the Corporation is authorized and empowered to give instructions to an attorney, for civil or for criminal, to appear and make answer for and on behalf and in the name of the Corporation to all writs, orders and interrogatories upon articulated facts issued out of any court and to declare for and on behalf and in the name of the Corporation any answer to writs of attachment by way of garnishment in which the Corporation is garnishee. Any director, officer or person so nominated is authorized and empowered to make all affidavits and sworn declarations in connection therewith or in connection with any and all judicial proceedings to which the Corporation is a party and to instruct an attorney to make demands of abandonment or petitions for winding-up or bankruptcy orders upon any debtor of the Corporation and to attend and vote at all meetings of creditors of the Corporation’s debtors and grant proxies in connection therewith. Any such director, officer or person is authorized to appoint by general or special power or powers of attorney any person or persons, including any person other than those directors, officers and persons hereinbefore mentioned, as attorney or attorneys of the Corporation to do any of the foregoing things.

 

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BY-LAW EIGHT

SEAL

The seal of the Corporation, if any, may be affixed by any director or officer of the Corporation or by any person designated by such director or officer.

BY-LAW NINE

REGULATION 45-106

ARTICLE 1. NUMBER OF HOLDERS OF SHARES AND SECURITIES The beneficial ownership of securities of the Corporation, including its shareholders, shall be limited to fifty (50) persons, not including employees and former employees of the Corporation or its affiliates, provided that each person is counted as one beneficial owner unless the person is created or used solely to purchase or hold securities of the Corporation in which case each beneficial owner or each beneficiary of the person, as the case may be, must be counted as a separate beneficial owner

ARTICLE 2. ISSUE OF SECURITIES  The directors, by way of resolution, may accept subscriptions for securities, allot or issue securities of the Company at such times, on such terms and conditions, to such persons and for such consideration as they see fit.

ARTICLE 3. PRIVATE ISSUER STATUS The directors shall use their best efforts to ensure that the Corporation remains a private issuer and complies with the provisions of the Regulation 45-106 .

ARTICLE 4. DECLARATION OF SUBSCRIBER Any person who subscribes shares or other securities issued by the Corporation shall declare to the Corporation that this subscription is exempted from prospectus and registration requirements pursuant to section 2.4 of the Regulation 45-106

ARTICLE 5. DECLARATION OF TRANSFEREE Any person who purchases shares or other securities of the Corporation shall declare that his acquisition is exempted from prospectus and registration requirements pursuant to the Regulation 45-106 .

ARTICLE 6. COMMISSION No commission or other remuneration, including a finder’s fee, shall be paid in connection with the sale of shares or other securities to a director, executive officer, control person or founder of the Corporation or of an affiliate of the Company.

 

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ADOPTED on February 15, 2016.

 

The President,

 

/s/ Benjamin Desmarais

 

Benjamin Desmarais

 

The Corporate Secretary

 

/s/ Marc M. Tremblay

 

Marc M. Tremblay

 

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BY-LAW TEN

BORROWING POWERS

The administrators of the Corporation are hereby authorized, when to their best judgment, it is in the best interest of the Corporation to:

 

  (a) borrow money on the credit of the Corporation from any bank, corporation, firm, association or individual, in the amount and in the conditions the Board of directors sees fit, and in the best interest of the Corporation;

 

  (b) increase or decrease the amount to be borrowed;

 

  (c) issue or have issued, sell or pledge bonds, debentures, notes or other debt obligations of the Corporation as by the terms, agreements and conditions and for the sums as seen fit by the Board of directors;

 

  (d) hypothecate movable and immovable property of the Corporation currently owned or subsequently acquired to secure payment or performance of an obligation or other debt obligations of the Corporation;

 

  (e) mortgage, hypothecate, charge, pledge or otherwise create a security interest in all or any currently owned or subsequently acquired movable and immovable property of the Corporation to secure such bonds, debentures, notes or other debt obligations, other than those contracted by the issuing of bonds or other securities;

 

  (f) provide a guarantee on behalf of the Corporation to secure payment of all debt obligations such as borrowed monies, debentures, notes, credits, overdraft advances, or other debts in favour of a bank, corporation, firm or person, including interest, hypothecate and provide to any bank, corporation, firm or any individual, all or any one of the Corporation property, movable or immovable, currently owned or subsequently acquired and provide guarantees that may be accepted by a bank in virtue of the different sections of the Bank Act, renew, modify or substitute such guarantees from time to time, with the authority to contract promises, to provide guarantees in virtue of the Bank Act related to any current debt or subsequently contracted by the Corporation with any bank;

 

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  (g) the Board of directors may from time to time, by resolution, delegate to any one or more directors or officers all or any of the powers conferred on the directors by paragraph 1 of this by-law to the full extent thereof or such lesser extent as the directors may in any such resolution provide;

AND the powers hereby conferred shall be deemed to be permanent and not subject to cease after the first exercise. Such powers can be used from time to time as long as they are not revoked by a written resolution.

 

  ADOPTED on February 15, 2016.
  The President,
 

/s/ Benjamin Desmarais

  Benjamin Desmarais
  The Corporate Secretary
 

/s/ Marc M. Tremblay

  Marc M. Tremblay

 

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Exhibit 1.32

 

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Item 3 - Shares / Rubrique 3 - Actions

The Corporation is authorized to issue an unlimited number of each of the following classes of shares: Class A Common Shares, Class B Common Shares, Class C Common Shares, Class A Special Shares, Class B Special Shares, Class C Special Shares, and Class A Preferred Shares.

Class A Common Shares

The Class A Common Shares of the Corporation shall have attached thereto the following rights, privileges, restrictions and conditions:

A. the holders of the Class A Common Shares shall be entitled to receive notice of and to attend, and shall be entitled to two (2) votes for each Class A Common Share held, at any meeting of the shareholders of the Corporation, except meetings at which only shareholders of a specified class of share are entitled to vote;

B. the holders of the Class A Common Shares shall in each financial year of the Corporation, in the discretion of the directors, be entitled out of any or all profits or surplus lawfully available for dividends, to non-cumulative dividends at a rate and in an amount to be determined by the directors. Without limiting the foregoing, dividends may be declared on the Class A Common Shares, without declaration of dividends on any other class of shares. No dividends shall at any time be declared or paid or set aside for payment on the Class A Common Shares, if after such declaration or payment, the Corporation would be unable to redeem or retract in full the Class A Special Shares, the Class B Special Shares, the Class C Special Shares, and the Class A Preferred Shares; and

C. in the event of the liquidation, dissolution or winding-up of the Corporation or other distribution of property or assets of the Corporation among its shareholders for the purposes of winding-up its affairs, subject to the rights of the holders of the Class A Special Shares, Class B Special Shares, Class C Special Shares, Class A Preferred Shares and any other shares of the Corporation ranking higher in seniority, the holders of the Class A Common Shares, the Class B Common Shares and the Class C Common Shares shall participate rateably in equal amounts per share, without preference or distinction, in the remaining assets of the Corporation.

Class B Common Shares

The Class B Common Shares of the Corporation shall have attached thereto the following rights, privileges, restrictions and conditions:

A. the holders of the Class B Common Shares shall be entitled to receive notice of and to attend, and shall be entitled to one (1) vote for each Class B Common Share held, at any meeting of the shareholders of the Corporation, except meetings at which only shareholders of a specified class of share are entitled to vote;

B. the holders of the Class B Common Shares shall in each financial year of the Corporation, in the discretion of the directors, be entitled out of any or all profits or surplus lawfully available for dividends, to non-cumulative dividends at a rate and in an amount to be determined by the directors. Without limiting the foregoing, dividends may be declared on the Class B Common Shares, without declaration of dividends on any other class of shares. No dividends shall at any time be declared or paid or set aside for payment on the Class B Common Shares, if after such declaration or payment, the Corporation would be unable to redeem or retract in full the Class A Special Shares, the Class B Special Shares, the Class C Special Shares, and the Class A Preferred Shares; and

C. in the event of the liquidation, dissolution or winding-up of the Corporation or other distribution of property or assets of the Corporation among its shareholders for the purposes of winding-up its affairs, subject to the rights of the holders of the Class A Special Shares, Class B Special Shares, Class C Special Shares, Class A Preferred Shares and any other shares of the Corporation ranking higher in seniority, the holders of the Class A Common Shares, the Class B Common Shares and the Class C Common Shares shall participate rateably in equal amounts per share, without preference or distinction, in the remaining assets of the Corporation.

Class C Common Shares

The Class C Common Shares of the Corporation shall have attached thereto the following rights, privileges, restrictions and conditions:

A. the holders of Class C Common Shares shall not, as such, be entitled to receive notice of or to attend any meeting of the shareholders of the Corporation or to vote at any such meeting, but shall be entitled to receive notice of and attend and to vote at any meeting of the shareholders called for the purposes of authorizing the dissolution of the Corporation or the sale, lease, or exchange of all or substantially all of the property of the Corporation other than in the ordinary course of business;

 

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B. the holders of the Class C Common Shares shall in each financial year of the Corporation, in the discretion of the directors, be entitled out of any or all profits or surplus lawfully available for dividends, to non cumulative dividends at a rate and in an amount to be determined by the directors. Without limiting the foregoing, dividends may be declared on the Class C Common Shares, without declaration of dividends on any other class of shares. No dividends shall at any time be declared or paid or set aside for payment on the Class C Common Shares, if after such declaration or payment, the Corporation would be unable to redeem or retract in full the Class A Special Shares, the Class B Special Shares, the Class C Special Shares, and the Class A Preferred Shares; and

C. in the event of the liquidation, dissolution or winding up of the Corporation or other distribution of property or assets of the Corporation among its shareholders for the purposes of winding up its affairs, subject to the rights of the holders of the Class A Special Shares, Class B Special Shares, Class C Special Shares, Class A Preferred Shares and any other shares of the Corporation ranking higher in seniority, the holders of the Class A Common Shares, the Class B Common Shares and the Class C Common Shares shall participate rateably in equal amounts per share, without preference or distinction, in the remaining assets of the Corporation.

Class A Special Shares

The Class A Special Shares of the Corporation shall have attached thereto the following rights, privileges, restrictions and conditions:

A. The holders of Class A Special Shares shall not, as such, be entitled to receive notice of or to attend any meeting of the shareholders of the Corporation or to vote at any such meeting, but shall be entitled to receive notice of and attend and to vote at any meeting of the shareholders called for the purposes of authorizing the dissolution of the Corporation or the sale, lease, or exchange of all or substantially all of the property of the Corporation other than in the ordinary course of business;

B. the holders of the Class A Special Shares shall in each financial year of the Corporation, in the discretion of the directors, be entitled out of any or all profits or surplus lawfully available for dividends, to non-cumulative dividends at a rate and in an amount to be determined by the directors. Without limiting the foregoing, dividends may be declared on the Class A Special Shares, without declaration of dividends on any other class of shares. No dividends shall at any time be declared or paid or set aside for payment on the Class A Special Shares, if after such declaration or payment, the Corporation would be unable to redeem or retract in full the Class B Special Shares, the Class C Special Shares or the Class A Preferred Shares;

C. in the event of the liquidation, dissolution or winding up of the Corporation, whether voluntary or involuntary, the holders of the Class A Special Shares shall be entitled to receive, in priority to and before any distribution of any part of the assets of the Corporation among the holders of any other class of shares, except the Class A Preferred Shares, the amount of one dollar ($1.00) per Class A Special Share, which shall be known as the «Redemption Amount», plus all accrued unpaid declared dividends, and no more;

D. each Class A Special Share is redeemable, at the option of the Corporation at any time upon ten days written notice to the registered holders as of the date of the notice of redemption. Upon payment in full by the Corporation of the Redemption Amount in respect of Class A Special Shares, the shares so redeemed shall be canceled, and shall cease to be entitled to any dividends; and

E. each holder of Class A Special Shares is entitled at any time upon ten days written notice to the Corporation to redeem any of the Class A Special Shares registered in the name of the holder. Subject to the provisions of the Canada Business Corporations Act, the Corporation shall forthwith pay to the holder the Redemption Amount for the shares so retracted. Upon payment in full by the Corporation to the holder of the Redemption Amount in respect of Class A Special Shares, the shares so retracted shall be canceled, and shall cease to be entitled to any dividends;

Class B Special Shares

The Class B Special Shares of the Corporation shall have attached thereto the following rights, privileges, restrictions and conditions:

A. the holders of the Class B Special Shares shall not, as such, be entitled to receive notice of or to attend any meeting of the shareholders of the Corporation or to vote at any such meeting, but shall be entitled to received notice of and to attend and vote at any meeting of the shareholders called for the purpose of authorizing the dissolution of the Corporation or the sale, lease or exchange of all or substantially all of the property of the Corporation other than in the ordinary course of business;


B. the holders of the Class B Special Shares shall in each financial year of the Corporation, in the discretion of the directors, be entitled out of any or all profits or surplus lawfully available for dividends, to non-cumulative dividends at a rate and in an amount to be determined by the directors. The holders of the Class B Special Shares shall not be entitled to any other dividends other than as provided in this section;

C. in the event of the liquidation, dissolution or winding up of the Corporation, whether voluntary or involuntary, the holders of the Class B Special Shares shall be entitled to receive, in priority to and before any distribution of any part of the assets of the Corporation among the holders of any other class of shares, except the Class A Special Shares and the Class A Preferred Shares, the amount often dollars ($10.00) per Class B Special Share, which shall be known as the «Redemption Amount», plus all accrued unpaid declared dividends, and no more.

D. each Class B Special Share is redeemable, at the option of the Corporation at any time upon ten days written notice to the registered holders as of the date of the notice of redemption. Upon payment in full by the Corporation of the Redemption Amount in respect of Class B Special Shares, the shares so redeemed shall be canceled, and shall cease to be entitled to any dividends; and

E. each holder of Class B Special Shares is entitled at any time upon ten days written notice to the Corporation to redeem any of the Class B Special Shares registered in the name of the holder. Subject to the provisions of the Canada Business Corporations Act, the Corporation shall forthwith pay to the holder the Redemption Amount for the shares so retracted. Upon payment in full by the Corporation to the holder of the Redemption Amount in respect of Class B Special Shares, the shares so retracted shall be canceled, and shall cease to be entitled to any dividends.

Class C Special Shares

The Class C Special Shares of the Corporation shall have attached thereto the following rights, privileges, restrictions and conditions:

A. the holders of the Class C Special Shares shall be entitled to receive notice of and to attend, and shall be entitled to one (1) vote for each Class C Special Share held, at any meeting of the shareholders of the Corporation, except meetings at which only shareholders of a specified class of share are entitled to vote;

B. the holders of the Class C Special Shares shall in each financial year of the Corporation, in the discretion of the directors, be entitled out of any or all profits or surplus lawfully available for dividends, to non-cumulative dividends at a rate and in an amount to be determined by the directors. The holders of the Class C Special Shares shall not be entitled to any other dividends other than as provided in this section.

C. in the event of the liquidation, dissolution or winding up of the Corporation, whether voluntary or involuntary, the holders of the Class C Special Shares shall be entitled to receive, in priority to and before any distribution of any part of the assets of the Corporation among the holders of any other class of shares, except the Class A Special Shares, the Class B Special Shares and the Class A Preferred Shares, the amount of one hundred dollars ($100.00) per Class C Special Share, which shall be known as the «Redemption Amount», plus all accrued unpaid declared dividends, and no more;

D. each Class C Special Share is redeemable, at the option of the Corporation at any time upon ten days written notice to the registered holders as of the date of the notice of redemption. Upon payment in full by the Corporation of the Redemption Amount in respect of Class C Special Shares, the shares so redeemed shall be canceled, and shall cease to be entitled to any dividends; and

E. each holder of Class C Special Shares is entitled at any time upon ten days written notice to the Corporation to redeem any of the Class C Special Shares registered in the name of the holder. Subject to the provisions of the Canada Business Corporations Act, the Corporation shall forthwith pay to the holder the Redemption Amount for the shares so retracted. Upon payment in full by the Corporation to the holder of the Redemption Amount in respect of Class C Special Shares, the shares so retracted shall be canceled, and shall cease to be entitled to any dividends.

Class A Preferred Shares

The Class A Preferred Shares of the Corporation shall have attached thereto the following rights, privileges, restrictions and conditions:

A. the directors of the Corporation may, at any time and from time to time, issue the Class A Preferred Shares in one or more series, each series to consist of such number of shares as may before issuance thereof be fixed by the directors;


B. the directors of the Corporation may (subject as hereinafter provided) from time to time before issuance determine the designation, rights, privileges, restrictions and conditions to attach to the Class A Preferred Shares of each series including, without limiting the generality of the foregoing, the rate, amount or method of calculation of dividends, whether cumulative or non-cumulative or partially cumulative, and whether such rate, amount or method of calculation shall be subject to change or adjustment in the future, the currency or currencies of payment, the date or dates and place or places of payment thereof, the rights of retraction, if any, vested in the holder of Class A Preferred Shares of such series, and the prices and the other terms and conditions of any rights of retraction and whether any additional rights of retraction may be vested in such holder in the future, voting rights (if any) and conversion rights (if any) and any sinking fund, purchase fund or other provisions attaching to the Class A Preferred Shares of such series, the whole subject to the issue by Industry Canada, of a certificate of amendment in respect of articles of amendment in prescribed form to designate a series of shares;

C. when any dividends or amounts payable on a return of capital are not paid in full, the Class A Preferred Shares of all series shall participate rateably in respect of such dividends including accumulations, if any, in accordance with amounts which would be payable on the Class A Preferred Shares if all such dividends were declared and paid in full, and on any return of capital in accordance with sums which would be payable on such return of capital if all amounts so payable were paid in full;

D. the Class A Preferred Shares of each series shall rank on a parity with the Class A Preferred Shares of every other series with respect to priority in payment of dividends and in the distribution of assets in the event of liquidation, dissolution or winding-up of the Corporation, whether voluntary or involuntary;

E. in the event of the liquidation, dissolution or winding-up of the Corporation or other distribution of assets of the Corporation among shareholders for the purpose of winding-up its affairs, the holders of the Class A Preferred Shares shall, before any amount shall be paid to or any property or assets of the Corporation shall be distributed among the holders of the Class A Common Shares, Class B Common Shares, Class C Common Shares, Class A Special Shares, Class B Special Shares, Class C Special Shares or any other shares of the Corporation ranking junior to the Class A Preferred Shares, be entitled to receive (a) an amount equal to the amount of the redemption price specified therefore, together with, in the case of cumulative Class A Preferred Shares, all unpaid cumulative dividends (which for such purpose shall be calculated as if such cumulative dividends were accruing from day to day for the period from the expiration of the last period for which cumulative dividends have been paid up to and including the date of distribution) and in the case of non-cumulative dividends, all declared and unpaid non-cumulative dividends, and (b) if such liquidation, dissolution, winding-up or distribution shall be voluntary, an additional amount equal to the premium, if any, which would have been payable on the redemption of the said Class A Preferred Shares, if they had been called for redemption by the Corporation on the date of liquidation, dissolution, winding-up or distribution and, if said Class A Preferred Shares could not be redeemed on such date, then an additional amount equal to the greatest premium, if any, which would have been payable on the redemption of said Class A Preferred Shares;

F. no dividends shall at any time be declared or paid on or set apart for payment on the Class A Common Shares, Class B Common Shares, Class C Common Shares, Class A Special Shares, Class B Special Shares, Class C Special Shares or any other shares of the Corporation ranking junior to the Class A Preferred Shares unless all dividends up to and including the dividend payable for the last completed period for which such dividends shall be payable on each series of Class A Preferred Shares then issued and outstanding shall have been declared and paid or set apart for payment at the date of such declaration or payment or setting apart for payment on the Class A Common Shares, Class B Common Shares, Class C Common Shares, Class A Special Shares, Class B Special Shares, Class C Special Shares or such other shares of the Corporation ranking junior to the Class A Preferred Shares nor shall the Corporation call for redemption or redeem or purchase for cancellation or reduce or otherwise pay off any of the Class A Preferred Shares (less than the total amount then outstanding) or any Class A Common Shares, Class B Common Shares, Class C Common Shares, Class A Special Shares, Class B Special Shares, Class C Special Shares or any other shares of the Corporation ranking junior to the Class A Preferred Shares unless all dividends up to and including the dividends payable for the last completed period for which such dividends shall be payable on each series of the Class A Preferred Shares then issued and outstanding shall have been declared and paid or set apart for payment at the date of such call for redemption, purchase, reduction or other payment;

G. the Class A Preferred Shares of any series may be purchased for cancellation or made subject to redemption by the Corporation at such times and at such prices and upon such other terms and conditions as may be specified in the rights, privileges, restrictions and conditions attaching to the Class A Preferred Shares of such series as set forth in the resolution of the board of directors of the Corporation and certificate of amendment relating to such series;

H. the approval of the holders of the Class A Preferred Shares, given in the manner described in paragraph (I) below, shall be required for the creation of any new shares ranking prior to or on a parity with the Class A Preferred Shares; and

l. the provisions of paragraph (A) to (H), inclusive, and of this paragraph (I) may be repealed, altered, modified, amended or varied in whole or in part only with the prior approval of the holders of the Class A Preferred Shares given in the manner hereinafter specified in addition to any other approval required by the Canada Business Corporation Act or any other applicable statutory provision of like or similar effect, from time to time in force. The approval of the holders of the Class A Preferred


Shares with respect to any and all matters hereinbefore referred to may given by at least 66-2/3% of the votes cast at a meeting of the holders of the Class A Preferred Shares duly called for that purpose and held upon at least 21 days’ notice at which the holders of a majority of the outstanding Class A Preferred Shares are present or represented by proxy. If at any such meeting the holders of a majority of the outstanding Class A Preferred Shares are not present or represented by proxy within one-half an hour after the time appointed for such meeting, then the meeting shall be adjourned to such date being not less than 30 days later and to such time and place as may be appointed by the chairman of the meeting and not less than 21 days’ notice shall be given of such adjourned meeting but it shall be necessary in such notice to specify the purpose for which the meeting was originally called. At such adjourned meeting the holders of the Class A Preferred Shares present or represented by proxy may transact the business for which the meeting was originally called and resolution passed thereat by not less than 66-2/3% of the votes cast at such adjourned meeting and the conduct thereof shall be from time to time prescribed by the by-laws of the Corporation with respect to meetings of shareholders. On every poll taken at every such meeting or adjourned meeting every holder of Class A Preferred Shares shall be entitled to one vote in respect of each Class A Preferred Share held by such holder.


Item 4 - Restrictions on Share Transfers / Rubrique 4 - Restrictions sur le transfert des actions

RESTRICTIONS ON SHARE TRANSFERS:

The right to transfer shares of the Corporation shall be restricted in that no shareholder shall be entitled to transfer any share or shares of the Corporation without the approval of:

a.the directors of the Corporation expressed by resolution passed by the votes cast by a majority of the directors of the Corporation at a meeting of the board of directors or signed by all of the directors of the Corporation; OR ·

b.the shareholders of the Corporation expressed by resolution passed by the votes cast by a majority of the shareholders who voted in respect of the resolution or signed by all shareholders entitled to vote on that resolution.


Item 6 - Restrictions - Business / Rubrique 6 - Restrictions - activité commerciale

None


Item 7 - Other Provisions / Rubrique 7 - Autres dispositions

Authorization to Appoint Additional Directors

The directors may, within the maximum provided by the articles, appoint one or more directors, who shall hold office for a term expiring not later than the close of the next annual meeting of the shareholders, but the total number of directors so appointed may not exceed one-third of the number of directors elected at the previous annual meeting of the shareholders.

Exhibit 1.33

[TRANSLATION]

SYSTÈMES DE FIBRES P2P DU CANADA LTÉE/

CANADIAN P2P FIBRE SYSTEMS LTD.

(the “Corporation”)

GENERAL BY-LAWS

BY-LAW ONE

SHAREHOLDERS

ARTICLE 1. ANNUAL MEETINGS The annual meeting of shareholders of the Corporation shall be held at such place, on such date and at such time as the Board of Directors may determine from time to time. Annual meetings of shareholders may be called at any time by order of the Board of Directors, the Chairman of the Board or, provided they are directors of the Corporation, the President or any Vice-President.

ARTICLE 2. SPECIAL GENERAL MEETINGS Special general meetings of shareholders shall be held at such place, on such date and at such time as the Board of Directors may determine from time to time or at any place where all the shareholders of the Corporation entitled to vote thereat are present in person or represented by proxy or at such other place as all the shareholders of the Corporation shall approve in writing.

Special general meetings of shareholders may be called at any time by order of the Board of Directors, the Chairman of the Board or, provided they are directors of the Corporation, the President or any Vice-President.

ARTICLE 3. NOTICE OF MEETING A notice specifying the place, date, time and purpose of any meeting of shareholders shall be given to all the shareholders entitled thereto at least 21 days but not more than 60 days prior to the date fixed for the meeting. The notice may be mailed, postage prepaid, to the shareholders at their respective addresses as they appear on the books of the Corporation or delivered by hand or transmitted by any means of telecommunication.

If the convening of a meeting of shareholders is a matter of urgency, notice of such meeting may be given not less than 48 hours before such meeting is to be held.


In the case of joint holders of a share, the notice of meeting shall be given to that one of them whose name stands first in the books of the Corporation and notice so given shall be sufficient notice to all the joint holders.

Irregularities in the notice or in the giving thereof as well as the unintentional omission to give notice to, or the non-receipt of any such notice by, any of the shareholders shall not invalidate any action taken by or at any such meeting.

ARTICLE 4. CHAIRMAN The Chairman of the Board or, in his absence, the President, if he is a director, or, in his absence, one of the Vice-Presidents who is a director of the Corporation (to be designated by the meeting in the event of more than one such Vice-President being present) shall preside at all meetings of shareholders. If all of the aforesaid officers be absent or decline to act, the persons present and entitled to vote may choose one of their number to act as chairman of the meeting. In the event of an equality of votes, the chairman of any meeting shall not be entitled to a casting vote in respect of any matter submitted to the vote of the meeting.

ARTICLE 5. QUORUM, VOTING AND ADJOURNMENTS The holder or holders of not less than 50% of the outstanding shares of the share capital of the Corporation carrying voting rights at such meeting, present in person or represented by proxy, shall constitute a quorum for any meeting of shareholders of the Corporation.

The acts of the holders of a majority of the shares so present or represented and carrying voting rights thereat shall be the acts of all the shareholders except as to matters on which the vote or consent of the holders of a greater number of shares is required or directed by the laws governing the Corporation, the constituting act or the by-laws of the Corporation.

Should a quorum not be present at any meeting of shareholders, those present in person and entitled to be counted for the purpose of forming a quorum shall have power to adjourn the meeting from time to time and from place to place without notice other than announcement at the meeting until a quorum shall be present. At any such adjourned meeting, provided a quorum is present, any business may be transacted which might have been transacted at the meeting adjourned.

ARTICLE 6. RIGHT TO VOTE AND PROXY At all meetings of shareholders, each shareholder present and entitled to vote thereat shall have on a show of hands one vote and, upon a poll, each shareholder present in person or represented by proxy shall be entitled to one vote for each share carrying voting rights registered in his name in the books of the Corporation unless, under the terms of the constituting act some other scale of voting is fixed, in which event such scale of voting shall be

 

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adopted. Any shareholder or proxy may demand a ballot (either before or on the declaration of the result of a vote upon a show of hands) in respect of any matter submitted to the vote of the shareholders.

In the case of joint holders of a share, the vote of the senior who tenders a vote, whether in person or by proxy, shall be accepted to the exclusion of the votes of the other joint holders, and for this purpose seniority shall be determined by the order in which the names stand in the books of the Corporation.

ARTICLE 7. SCRUTINEERS The chairman at any meeting of shareholders may appoint one or more persons, who need not be shareholders, to act as scrutineer or scrutineers at the meeting.

ARTICLE 8. ADDRESSES   OF   SHAREHOLDERS Every shareholder shall furnish to the Corporation an address to which all notices intended for such shareholder shall be given, failing which, any such notice may be given to him at any other address appearing on the books of the Corporation. If no address appears on the books of the Corporation, such notice may be sent to such address as the person sending the notice may consider to be the most likely to result in such notice promptly reaching such shareholder.

BY-LAW TWO

BOARD OF DIRECTORS

ARTICLE 1. ELECTION OF DIRECTORS AND TERM OF OFFICE Except as herein otherwise provided, each director shall be elected at an annual meeting of shareholders or at any special general meeting of shareholders called for that purpose, by a majority of the votes cast in respect of such election. It shall not be necessary that the voting for the election of directors of the Corporation be conducted by ballot unless voting by ballot is requested by a shareholder or proxy. Each director so elected shall hold office until the election of his successor unless he shall resign or his office become vacant by death, removal or other cause.

ARTICLE 2. ACTS OF DIRECTORS All acts done by the directors or by any person acting as a director, until their successors have been duly elected or appointed, shall, notwithstanding that it be afterwards discovered that there was some defect in the election of the directors or such person acting as aforesaid or that they or any of them were disqualified, be as valid as if the directors or such other person, as the case may be, had been duly elected and were qualified to be directors of the Corporation.

ARTICLE 3. POWER TO ALLOT STOCK AND GRANT OPTIONS Subject to the provisions of the constituting act of the Corporation, the shares of the

 

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Corporation shall be at all times under the control of the directors who may by resolution, from time to time, accept subscriptions, allot, issue, grant options in respect of or otherwise dispose of the whole or any part of the unissued shares of the share capital of the Corporation on such terms and conditions, for such consideration not contrary to law or to the constituting act of the Corporation and at such times prescribed in such resolutions. The directors may, from time to time, make calls upon the shareholders in respect of any moneys unpaid upon their shares. Each shareholder shall pay the amount called on his shares at the time and place fixed by the directors.

ARTICLE 4. POWER TO DECLARE DIVIDENDS The directors may from time to time as they may deem advisable, declare and pay dividends out of any funds available for dividends to the shareholders according to their respective rights and interest therein.

Any dividend may be paid by cheque or warrant made payable to and mailed to the address on the books of the Corporation of the shareholder entitled thereto and in the case of joint holders to that one of them whose name stands first in the books of the Corporation, and the mailing of such cheque or warrant shall constitute payment unless the cheque or warrant is not paid upon presentation.

ARTICLE 5. PLACE   OF   MEETINGS   AND   NOTICES All meetings of the Board of Directors shall be held at such place, on such date and at such time as may be determined from time to time by the Board of Directors or at any place where all the directors are present.

Any meeting of the Board of Directors may be called at any time by or on the order of the Chairman of the Board or, provided they are directors of the Corporation, the President or any Vice-President or by any two directors.

Notice specifying the place, date and time of any meeting of the Board of Directors shall be given to each of the directors at least 72 hours prior to the date fixed for such meeting. The notice may be mailed, postage prepaid, to each director at his residence or usual place of business, or delivered by hand or transmitted by any means of telecommunication.

In any case where the convening of a meeting of directors is a matter of urgency, notice of such meeting may be given not less than 3 hours before such meeting is to be held.

Notwithstanding any other provisions of this ARTICLE 5, immediately after the annual meeting of shareholders in each year, a meeting of such of the newly elected directors as are then present shall be held, provided they shall constitute a quorum, without further notice, for the election or appointment of officers of the Corporation and the transaction of such other business as may come before them.

 

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ARTICLE 6. CHAIRMAN The Chairman of the Board or, in his absence, the President, if he is a director, or, in his absence, one of the Vice-Presidents who is a director of the Corporation (to be designated by the meeting in the event of more than one such Vice-President being present) shall preside at all meetings of the directors. If all of the aforesaid officers are absent or decline to act, the directors present may choose one of their number to act as chairman of the meeting. In the event of an equality of votes, the chairman of any meeting shall be entitled to cast one vote as a director, but not a second or casting vote in respect of any matter submitted to the vote of the meeting.

ARTICLE 7. QUORUM Except when the Corporation has only one director, the directors may from time to time fix by resolution the quorum for meetings of directors, but until otherwise fixed, a majority of the directors in office shall constitute a quorum.

ARTICLE 8. VACANCIES AND RESIGNATION In the case of a vacancy occurring in the Board of Directors, the directors then in office, by the affirmative vote of a majority of said remaining directors, so long as a quorum of the Board remains in office, may from time to time and at any time fill such vacancy for the remainder of the term.

ARTICLE 9. SOLE DIRECTOR In the case where the Corporation has only one director, the acts that may be or are required to be taken by the Board of Directors or by two directors of the Corporation, under the Corporation’s by-laws, may be taken by the sole director of the Corporation.

BY-LAW THREE

OFFICERS

ARTICLE 1. OFFICERS The directors shall elect or appoint a President, shall appoint a Secretary and may also elect or appoint as officers a Chairman of the Board, one or more Vice-Presidents, one or more Assistant-Secretaries, a Treasurer and one or more Assistant-Treasurers. Such officers shall be elected or appointed at the first meeting of the Board of Directors after each annual meeting of shareholders. There may also be appointed such other officers as the Board of Directors may from time to time deem necessary. Such officers shall respectively perform such duties, in addition to those specified in the by-laws of the Corporation, as shall from time to time be prescribed by the Board of Directors. The same person may hold more than one office, provided, however, that the same person shall not hold the office of President and Vice-President. None of such officers except the Chairman of the Board need be a director of the Corporation.

 

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ARTICLE 2. CHAIRMAN OF THE BOARD The Chairman of the Board, if any, shall preside at all meetings of directors and shareholders of the Corporation and he shall have such other powers and duties as the Board of Directors may determine from time to time.

ARTICLE 3. PRESIDENT The President shall be the chief executive officer of the Corporation and shall exercise a general control of and supervision over its affairs. He shall have such other powers and duties as the Board of Directors may determine from time to time.

ARTICLE 4. VICE-PRESIDENT OR VICE-PRESIDENTS The Vice-President or Vice-Presidents shall have such powers and duties as may be determined by the Board of Directors from time to time. In case of the absence, disability, refusal or omission to act of the President, a Vice-President designated by the directors may exercise the powers and perform the duties of the President and, if such Vice-President exercises any of the powers or performs any of the duties of the President, the absence, disability, refusal or omission to act of the President shall be presumed.

ARTICLE 5. TREASURER   AND   ASSISTANT-TREASURERS The Treasurer shall have general charge of the finances of the Corporation. He shall render to the Board of Directors, whenever directed by the Board and as soon as possible after the close of each financial year, an account of the financial condition of the Corporation and of all his transactions as Treasurer. He shall have charge and custody of and be responsible for the keeping of the books of account required under the laws governing the Corporation. He shall perform all the acts incidental to the office of Treasurer or as may be determined by the Board of Directors from time to time.

Assistant-Treasurers shall perform any of the duties of the Treasurer delegated to them from time to time by the Board of Directors or by the Treasurer.

ARTICLE 6. SECRETARY   AND   ASSISTANT-SECRETARIES The Secretary shall attend to the giving of all notices of the Corporation and shall keep the records of all meetings and resolutions of the shareholders and of the Board of Directors in a book to be kept for that purpose. He shall keep in safe custody the seal of the Corporation, if any. He shall have charge of the books containing the names and addresses of the shareholders and directors of the Corporation and such other books and papers as the Board of Directors may direct. He shall perform such other duties incidental to his office or as may be required by the Board of Directors from time to time.

 

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Assistant-Secretaries shall perform any of the duties of the Secretary delegated to them from time to time by the Board of Directors or by the Secretary.

ARTICLE 7. SECRETARY-TREASURER Whenever the Secretary shall also be the Treasurer he may, at the option of the Board of Directors, be designated the “Secretary-Treasurer”.

ARTICLE 8. REMOVAL The Board of Directors may, subject to the law and the provisions of any contract, remove and discharge any officer of the Corporation at any meeting called for that purpose and may elect or appoint any other person.

BY-LAW FOUR

SHARE CAPITAL

ARTICLE 1. SHARE CERTIFICATES Certificates representing shares of the share capital of the Corporation shall be approved by the Board of Directors. Share certificates shall bear the signatures of two directors or two officers of the Corporation or of one director and one officer of the Corporation. Such signatures may be engraved, lithographed or otherwise mechanically reproduced thereon. Any certificate bearing the facsimile reproduction of the signature of any of such authorized persons shall be deemed to have been manually signed by him and shall be as valid to all intents and purposes as if it had been manually signed, notwithstanding that the person whose signature is so reproduced shall, at the time that the certificate is issued or on the date of such certificate, have ceased to be an officer or director of the Corporation, as the case may be.

ARTICLE 2. TRANSFER OF SHARES A register of transfers containing the date and particulars of all transfers of shares of the share capital of the Corporation shall be kept either at the head office or at such other office of the Corporation or at such other place in the Province of Québec or elsewhere in Canada as may be determined, from time to time, by resolution of the Board of Directors. One or more branch registers of transfers may be kept at any office of the Corporation or any other place within the Province of Québec or elsewhere as may from time to time be determined by resolution of the Board of Directors. The date and particulars of all transfers of shares contained in a branch register of transfers must also be entered in the register of transfers. Such register of transfers and branch registers of transfers shall be kept by the Secretary or by such other officer or officers as may be specially charged with this duty or by such agent or agents as may be appointed from time to time for that purpose by resolution of the Board of Directors.

Entry of the transfer of any share of the share capital of the Corporation may be made in the register of transfers or in a branch register of transfers regardless of where the certificate representing the share to be transferred shall have been issued.

 

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If the shares of the share capital of the Corporation to be transferred are represented by a certificate, the transfer of such shares shall not be entered in the register of transfers or the branch register of transfers, unless or until the certificate representing the shares to be transferred has been duly endorsed and surrendered for cancellation.

ARTICLE 3. CLOSING OF BOOKS The Board of Directors may, from time to time, by resolution close the register of transfers and the branch registers of transfers, if any, for any time or times not exceeding in the whole 60 days in each financial year of the Corporation on giving notice by advertisement in a newspaper published in the place where the register of transfers is kept and in a newspaper published in the place where each of the branch registers of transfers is kept. The Board of Directors may by resolution fix in advance a date not exceeding 60 days preceding the date of any meeting of shareholders of the Corporation or the date for the payment of any dividend or the date for the allotment of any rights as a record date for the determination of the shareholders entitled to receive notice of any such meeting or to receive payment of any such dividend or to be allotted any such rights. Only shareholders of record on the record date so fixed shall be entitled to receive such notice or to receive payment of such dividend or to be allotted such rights, as the case may be, notwithstanding any transfer of any shares on the books of the Corporation after such record date.

ARTICLE 4. TRANSFER   AGENTS   AND   REGISTRARS The Board of Directors may appoint or remove from time to time transfer agents or registrars of transfers of shares of the share capital of the Corporation and, subject to the laws governing the Corporation, make regulations generally, from time to time, with reference to the transfer of the shares of the share capital of the Corporation. Upon any such appointment being made, all certificates representing shares of the share capital of the Corporation thereafter issued shall be countersigned by one of such transfer agents or one of such registrars of transfers and shall not be valid unless so countersigned.

BY-LAW FIVE

FINANCIAL YEAR

The financial year of the Corporation shall end on the 31 st day of December in each year. Such date may, however, be changed from time to time by resolution of the Board of Directors.

 

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BY-LAW SIX

ARTICLE 1. CONTRACTS All contracts, deeds, agreements, documents, bonds, debentures and other instruments requiring execution by the Corporation may be signed by two directors or two officers of the Corporation or by one director and one officer of the Corporation or by such persons as the Board of Directors may otherwise authorize from time to time by resolution. Any such authorization may be general or confined to specific instances.

ARTICLE 2. CONFLICT OF INTERESTS The Corporation may transact business with one or more of its directors or with any firm of which one or more of its directors are members or employees or with any corporation or association of which one or more of its directors are shareholders, directors, officers or employees. The director who has an interest in such transaction shall disclose it to the Corporation and to the other directors making a decision in respect of such transaction and shall abstain from discussing and voting on the question except if his vote is required to bind the Corporation in respect of such transaction.

BY-LAW SEVEN

DECLARATIONS

Any director or officer of the Corporation or any other person nominated for that purpose by any director or officer of the Corporation is authorized and empowered to give instructions to an attorney, for civil or for criminal, to appear and make answer for and on behalf and in the name of the Corporation to all writs, orders and interrogatories upon articulated facts issued out of any court and to declare for and on behalf and in the name of the Corporation any answer to writs of attachment by way of garnishment in which the Corporation is garnishee. Any director, officer or person so nominated is authorized and empowered to make all affidavits and sworn declarations in connection therewith or in connection with any and all judicial proceedings to which the Corporation is a party and to instruct an attorney to make demands of abandonment or petitions for winding-up or bankruptcy orders upon any debtor of the Corporation and to attend and vote at all meetings of creditors of the Corporation’s debtors and grant proxies in connection therewith. Any such director, officer or person is authorized to appoint by general or special power or powers of attorney any person or persons, including any person other than those directors, officers and persons hereinbefore mentioned, as attorney or attorneys of the Corporation to do any of the foregoing things.

 

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BY-LAW EIGHT

SEAL

The seal of the Corporation, if any, may be affixed by any director or officer of the Corporation or by any person designated by such director or officer.

BY-LAW NINE

REGULATION 45-106

ARTICLE 1. NUMBER OF HOLDERS OF SHARES AND SECURITIES The beneficial ownership of securities of the Corporation, including its shareholders, shall be limited to fifty (50) persons, not including employees and former employees of the Corporation or its affiliates, provided that each person is counted as one beneficial owner unless the person is created or used solely to purchase or hold securities of the Corporation in which case each beneficial owner or each beneficiary of the person, as the case may be, must be counted as a separate beneficial owner

ARTICLE 2. ISSUE OF SECURITIES  The directors, by way of resolution, may accept subscriptions for securities, allot or issue securities of the Company at such times, on such terms and conditions, to such persons and for such consideration as they see fit.

ARTICLE 3. PRIVATE ISSUER STATUS The directors shall use their best efforts to ensure that the Corporation remains a private issuer and complies with the provisions of the Regulation 45-106 .

ARTICLE 4. DECLARATION OF SUBSCRIBER Any person who subscribes shares or other securities issued by the Corporation shall declare to the Corporation that this subscription is exempted from prospectus and registration requirements pursuant to section 2.4 of the Regulation 45-106

ARTICLE 5. DECLARATION OF TRANSFEREE Any person who purchases shares or other securities of the Corporation shall declare that his acquisition is exempted from prospectus and registration requirements pursuant to the Regulation 45-106 .

ARTICLE 6. COMMISSION No commission or other remuneration, including a finder’s fee, shall be paid in connection with the sale of shares or other securities to a director, executive officer, control person or founder of the Corporation or of an affiliate of the Company.

 

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ADOPTED on February 15, 2016.
The President,

/s/ Benjamin Desmarais

Benjamin Desmarais
The Corporate Secretary

/s/ Marc M. Tremblay

Marc M. Tremblay

 

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BY-LAW TEN

BORROWING POWERS

The administrators of the Corporation are hereby authorized, when to their best judgment, it is in the best interest of the Corporation to:

 

  (a) borrow money on the credit of the Corporation from any bank, corporation, firm, association or individual, in the amount and in the conditions the Board of directors sees fit, and in the best interest of the Corporation;

 

  (b) increase or decrease the amount to be borrowed;

 

  (c) issue or have issued, sell or pledge bonds, debentures, notes or other debt obligations of the Corporation as by the terms, agreements and conditions and for the sums as seen fit by the Board of directors;

 

  (d) hypothecate movable and immovable property of the Corporation currently owned or subsequently acquired to secure payment or performance of an obligation or other debt obligations of the Corporation;

 

  (e) mortgage, hypothecate, charge, pledge or otherwise create a security interest in all or any currently owned or subsequently acquired movable and immovable property of the Corporation to secure such bonds, debentures, notes or other debt obligations, other than those contracted by the issuing of bonds or other securities;

 

  (f) provide a guarantee on behalf of the Corporation to secure payment of all debt obligations such as borrowed monies, debentures, notes, credits, overdraft advances, or other debts in favour of a bank, corporation, firm or person, including interest, hypothecate and provide to any bank, corporation, firm or any individual, all or any one of the Corporation property, movable or immovable, currently owned or subsequently acquired and provide guarantees that may be accepted by a bank in virtue of the different sections of the Bank Act, renew, modify or substitute such guarantees from time to time, with the authority to contract promises, to provide guarantees in virtue of the Bank Act related to any current debt or subsequently contracted by the Corporation with any bank;

 

- 12 -


  (g) the Board of directors may from time to time, by resolution, delegate to any one or more directors or officers all or any of the powers conferred on the directors by paragraph 1 of this by-law to the full extent thereof or such lesser extent as the directors may in any such resolution provide;

AND the powers hereby conferred shall be deemed to be permanent and not subject to cease after the first exercise. Such powers can be used from time to time as long as they are not revoked by a written resolution.

 

ADOPTED on February 15, 2016.  
The President,  

/s/ Benjamin Desmarais

 
Benjamin Desmarais  
The Corporate Secretary  

/s/ Marc M. Tremblay

 
Marc M. Tremblay  

 

- 13 -

Exhibit 2.4

 

 

 

VIDEOTRON LTD. / VIDÉOTRON LTÉE

 

 

THIRD SUPPLEMENTAL INDENTURE

Dated as of March 12, 2015

 

 

Computershare Trust Company of Canada,

Trustee

 

 

 

 

 

 


THIRD SUPPLEMENTAL INDENTURE , dated as of March 12, 2015 (this “Third Supplemental Indenture” ), by and among Videotron Ltd. / Vidéotron Ltée, a corporation under the laws of the Province of Québec (the “Corporation” ), 4Degrés Colocation inc. / 4Degrees Colocation Inc., a corporation under the Canada Business Corporations Act (the “ Additional Subsidiary Guarantor ”) and Computershare Trust Company of Canada, as trustee (the “ Trustee ”), to the Indenture, dated as of July 5, 2011, as supplemented through the date hereof (the “ Indenture ”), by and among the Corporation, each of the subsidiary guarantors party thereto (collectively referred to as the “ Original Subsidiary Guarantors ”), and the Trustee.

WHEREAS, the Corporation, the Original Subsidiary Guarantors and the Trustee have entered into the Indenture governing the Corporation’s 6  7 / 8 % Senior Notes due July 15, 2021 (the “Notes” );

WHEREAS, Section 4.19 of the Indenture provides that under certain circumstances the Corporation shall cause a Restricted Subsidiary to execute and deliver to the Trustee a supplemental indenture providing for a Subsidiary Guarantee of the payment of the Notes by such Restricted Subsidiary;

WHEREAS, the parties hereto are desirous of further supplementing the Indenture in the manner hereinafter provided for the purpose of providing Subsidiary Guarantees by the Additional Subsidiary Guarantor in accordance with the terms of the Indenture;

WHEREAS, Section 9.01(5) of the Indenture provides that the Corporation and the Trustee may amend or supplement the Indenture without the consent of any Holder to add additional guarantees with respect to the Notes; and

WHEREAS, all things necessary have been done to make this Third Supplemental Indenture a valid agreement of the Corporation, the Additional Subsidiary Guarantor and the Trustee, in accordance with its terms.

NOW, THEREFORE, THIS THIRD SUPPLEMENTAL INDENTURE WITNESSETH:

For and in consideration of the premises contained herein, the parties hereto mutually covenant and agree as follows:

1. Terms used in this Third Supplemental Indenture that are not defined herein shall have the meanings set forth in the Indenture.

2. The Additional Subsidiary Guarantor hereby agrees to provide an unconditional Subsidiary Guarantee on the terms and subject to the conditions and limitations set forth in the Indenture, including but not limited to Article 10 of the Indenture.

3. This Third Supplemental Indenture shall be construed as supplemental to the Indenture and shall form a part thereof, and the Indenture is hereby incorporated by reference herein and, as supplemented, modified and restated hereby, is hereby ratified, approved and confirmed.

4. This Third Supplemental Indenture shall be effective as of the date hereof. On and after the date hereof, each reference in the Indenture to “this Indenture,” “hereunder,” “hereof,” or “herein” shall mean and be a reference to the Indenture as supplemented by this Third Supplemental Indenture unless the context otherwise requires.


5. Except as provided below, in the event of a conflict between the terms and conditions of the Indenture and the terms and conditions of this Third Supplemental Indenture, the terms and conditions of this Third Supplemental Indenture shall prevail.

6. If any provision of this Third Supplemental Indenture limits, qualifies or conflicts with another provision of the Indenture that is required to be included by the Trust Indenture Act of 1939, as amended (the “Act” ), as in force at the date this Third Supplemental Indenture is executed, the provision required by said Act shall control.

7. This Third Supplemental Indenture shall be governed and construed in accordance with the laws of the Province of Quebec and the federal laws of Canada applicable therein. The parties hereby acknowledge that they have expressly required this Third Supplemental Indenture be drawn up in the English language only. Les parties reconnaissent avoir expressément demandé que la présente convention soit rédigé en anglais seulement .

8. This Third Supplemental Indenture may be signed in any number of counterparts with the same effect as if the signatures to each counterpart were upon a single instrument, and all such counterparts together shall be deemed an original of this Third Supplemental Indenture.

9. The recitals contained in this Third Supplemental Indenture shall be taken as the statements of the Corporation, and the Trustee assumes no responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Third Supplemental Indenture.

[SIGNATURES ON FOLLOWING PAGES]


IN WITNESS WHEREOF, the parties hereto have caused this Third Supplemental Indenture to be duly executed as of the day and year first above written.

CORPORATION:

VIDÉOTRON LTÉE

 

By :  

/s/ Hugues Simard

    By :  

/s/ Chloé Poirier

Name :   Hugues Simard     Name :   Chloé Poirier
Title :   Senior Vice President and Chief     Title :   Vice President and Treasurer
  Financial Officer      

ADDITIONAL SUBSIDIARY GUARANTOR:

4DEGRÉS COLOCATION INC.

 

By :  

/s/ Chloé Poirier

    By :  

/s/ Dominique Poulin-Gouin

Name :   Chloé Poirier     Name :   Dominique Poulin-Gouin
Title :   Vice President and Treasurer     Title :   Assistant Secretary

TRUSTEE:

COMPUTERSHARE TRUST COMPANY OF CANADA

 

By :  

/s/ Fabienne Pinatel

    By :  

/s/ Sophie Brault

Name :   Fabienne Pinatel     Name :   Sophie Brault
Title :  

Gestionnaire fiduciaire

Corporate Trust Officer

    Title :   Corporate Trust Officer

Third Supplemental Indenture to 2011 Indenture

Exhibit 2.5

 

 

 

VIDEOTRON LTD. / VIDÉOTRON LTÉE

 

 

SUPPLEMENTAL INDENTURE

Dated as of January 8, 2016

 

 

Computershare Trust Company of Canada,

Trustee

 

 

 

 

 

 


SUPPLEMENTAL INDENTURE , dated as of January 8, 2016 (this “Supplemental Indenture” ), by and among Videotron Ltd. / Vidéotron Ltée, a corporation under the laws of the Province of Québec (the “ Corporation ”), 9529454 Canada Inc., a corporation under the Canada Business Corporations Act (“ 9529454 ”), 8480869 Canada Inc., a corporation under the Canada Business Corporations Act (“ 8480869 ”), Fibrenoire Inc., a corporation under the Canada Business Corporations Act (“ Fibrenoire ”) and Canadian P2P Fibre Systems Ltd. / Systèmes de Fibres P2P du Canada Ltée (“ Canadian P2P ” and, collectively with 9529454, 8480869 and Fibrenoire, the “ Additional Subsidiary Guarantors ”, each an “ Additional Subsidiary Guarantor ”) and Computershare Trust Company of Canada (“ Computershare ” or the “ Trustee ”), as trustee, to each of (i) the Indenture, dated as of July 5, 2011, as supplemented through the date hereof, by and among the Corporation, each of the subsidiary guarantors party thereto, and Computershare, as trustee (the “ 2011 Indenture ”), (ii) the Indenture, dated as of June 17, 2013, as supplemented through the date hereof, by and among the Corporation, each of the subsidiary guarantors party thereto, and Computershare, as trustee (the “ 2013 Indenture ”), and (iii) the Indenture, dated as of September 15, 2015, as supplemented through the date hereof, by and among the Corporation, each of the subsidiary guarantors party thereto, and Computershare, as trustee (the “ 2015 Indenture ” and collectively with the 2011 Indenture and the 2013 Indenture the “ Indentures ” and each an “ Indenture ”).

WHEREAS, the Corporation, the existing subsidiary guarantors party thereto, and Computershare, as trustee, have entered into (i) the 2011 Indenture governing the Corporation’s 6  7 / 8 % Senior Notes due 2021 (the “ 2021 Notes ”), (ii) the 2013 Indenture governing the Corporation’s 5  5 / 8 % Senior Notes due June 15, 2025 (the “ 2025 Notes” ), and (iii) the 2015 Indenture governing the Corporation’s 5  3 / 4 % Senior Notes due 2026 (the “ 2026 Notes ” and, collectively with the 2021 Notes and the 2025 Notes, the “ Notes ”);

WHEREAS, Section 4.19 of each of the Indentures, respectively, provides that under certain circumstances the Corporation shall cause a Restricted Subsidiary to execute and deliver to the Trustee a supplemental indenture providing for a Subsidiary Guarantee of the payment of the notes issued thereunder by such Restricted Subsidiary;

WHEREAS, the parties hereto are desirous of further supplementing each Indenture in the manner hereinafter provided for the purpose of providing Subsidiary Guarantees by the Additional Subsidiary Guarantors in accordance with the terms of each Indenture;

WHEREAS, Section 9.01(5) of each Indenture, respectively, provides that the Corporation and the Trustee may amend or supplement such Indenture without the consent of any Holder to add additional guarantees with respect to the notes issued thereunder; and

WHEREAS, all things necessary have been done to make this Supplemental Indenture a valid agreement of the Corporation, the Additional Subsidiary Guarantors and the Trustee, in accordance with its terms.

 

Supplemental Indenture – VL/Fibrenoire


NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:

For and in consideration of the premises contained herein, the parties hereto mutually covenant and agree as follows:

1. In respect of each the Indentures, respectively, terms used in this Supplemental Indenture that are not defined herein shall have the meanings set forth in such Indenture.

2. Each Additional Subsidiary Guarantor hereby agrees to provide an unconditional Subsidiary Guarantee on the terms and subject to the conditions and limitations set forth in each Indenture, including but not limited to Article 10 of each Indenture.

3. This Supplemental Indenture shall be construed as supplemental to each Indenture, respectively, and shall form a part thereof, and each Indenture is hereby incorporated by reference herein and, as supplemented, modified and restated hereby, is hereby ratified, approved and confirmed.

4. This Supplemental Indenture shall be effective as of the date hereof. On and after the date hereof, each reference in each Indenture to “this Indenture,” “hereunder,” “hereof,” or “herein” shall mean and be a reference to such Indenture as supplemented by this Supplemental Indenture unless the context otherwise requires.

5. Except as provided below, in the event of a conflict between the terms and conditions of each Indenture, respectively, and the terms and conditions of this Supplemental Indenture, the terms and conditions of this Supplemental Indenture shall prevail.

6. If any provision of this Supplemental Indenture limits, qualifies or conflicts with another provision of each Indenture, respectively, that is required to be included by the Trust Indenture Act of 1939, as amended (the “ Act ”), as in force at the date this Supplemental Indenture is executed, the provision required by said Act shall control.

7. This Supplemental Indenture shall be governed and construed in accordance with the laws of the Province of Quebec and the federal laws of Canada applicable therein. The parties hereby acknowledge that they have expressly required this Supplemental Indenture be drawn up in the English language only. Les parties reconnaissent avoir expressément demandé que la présente convention soit rédigée en anglais seulement .

8. This Supplemental Indenture may be signed in any number of counterparts with the same effect as if the signatures to each counterpart were upon a single instrument, and all such counterparts together shall be deemed an original of this Supplemental Indenture.

9. The recitals contained in this Supplemental Indenture shall be taken as the statements of the Corporation, and the Trustee assumes no responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Supplemental Indenture.

[ SIGNATURES ON FOLLOWING PAGES ]

 

Supplemental Indenture – VL/Fibrenoire


IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the day and year first above written.

CORPORATION:

VIDÉOTRON LTÉE

 

By :  

/s/ Hugues Simard

    By :  

/s/ Chloé Poirier

Name :   Hugues Simard     Name :   Chloé Poirier
Title :   Senior Vice President and Chief Financial Officer     Title ::   Vice President and Treasurer

ADDITIONAL SUBSIDIARY GUARANTORS:

9529454 CANADA INC.

 

By :  

/s/ Hugues Simard

    By :  

/s/ Chloé Poirier

Name :   Hugues Simard     Name :   Chloé Poirier
Title :   Vice President Finance     Title ::   Vice President and Treasurer

8480869 CANADA INC.

 

By :  

/s/ Hugues Simard

    By :  

/s/ Chloé Poirier

Name :   Hugues Simard     Name :   Chloé Poirier
Title :   Vice President     Title ::   Vice President and Treasurer

FIBRENOIRE INC.

 

By :  

/s/ Hugues Simard

    By :  

/s/ Chloé Poirier

Name :   Hugues Simard     Name :   Chloé Poirier
Title :   Vice President     Title ::   Vice President and Treasurer

CANADIAN P2P FIBRE SYSTEMS LTD.

 

By :  

/s/ Hugues Simard

    By :  

/s/ Chloé Poirier

Name :   Hugues Simard     Name :   Chloé Poirier
Title :   Vice President     Title ::   Vice President and Treasurer

 

Supplemental Indenture – VL/Fibrenoire


TRUSTEE:

COMPUTERSHARE TRUST COMPANY OF CANADA

 

By :  

/s/ Fabienne Pinatel

    By :  

/s/ Ekaterini Galouzis

Name :   Fabienne Pinatel     Name :   Ekaterini Galouzis
Title :  

Gestionnaire fiduciaire

Corporate Trust Officer

    Title :  

Gestionnaire Fiduciaire Adjointe

Associate Trust Officer

 

Supplemental Indenture – VL/Fibrenoire

Exhibit 2.9

 

 

 

VIDEOTRON LTD. / VIDÉOTRON LTÉE

 

 

FIRST SUPPLEMENTAL INDENTURE

Dated as of March 12, 2015

 

 

Wells Fargo Bank, National Association,

Trustee

 

 

 

 

 

 


FIRST SUPPLEMENTAL INDENTURE , dated as of March 12, 2015 (this “First Supplemental Indenture” ), by and among Videotron Ltd. / Vidéotron Ltée, a corporation under the laws of the Province of Québec (the “Corporation” ), 4Degrés Colocation inc. / 4Degrees Colocation Inc., a corporation under the Canada Business Corporations Act (the “ Additional Subsidiary Guarantor ”) and Wells Fargo Bank, National Association, as trustee (the “ Trustee ”), to the Indenture, dated as of March 14, 2012, as supplemented through the date hereof (the “ Indenture ”), by and among the Corporation, each of the subsidiary guarantors party thereto (collectively referred to as the “ Original Subsidiary Guarantors ”), and the Trustee.

WHEREAS, the Corporation, the Original Subsidiary Guarantors and the Trustee have entered into the Indenture governing the Corporation’s 5% Senior Notes due July 15, 2022 (the “Notes” );

WHEREAS, Section 4.19 of the Indenture provides that under certain circumstances the Corporation shall cause a Restricted Subsidiary to execute and deliver to the Trustee a supplemental indenture providing for a Subsidiary Guarantee of the payment of the Notes by such Restricted Subsidiary;

WHEREAS, the parties hereto are desirous of further supplementing the Indenture in the manner hereinafter provided for the purpose of providing Subsidiary Guarantees by the Additional Subsidiary Guarantor in accordance with the terms of the Indenture;

WHEREAS, Section 9.01(e) of the Indenture provides that the Corporation and the Trustee may amend or supplement the Indenture without the consent of any Holder to add additional guarantees with respect to the Notes;

WHEREAS, this First Supplemental Indenture shall not result in a material modification of the Notes for purposes of the Foreign Account Tax Compliance Act; and

WHEREAS, all things necessary have been done to make this First Supplemental Indenture a valid agreement of the Corporation, the Additional Subsidiary Guarantor and the Trustee, in accordance with its terms.

NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH:

For and in consideration of the premises contained herein, the parties hereto mutually covenant and agree as follows:

1. Terms used in this First Supplemental Indenture that are not defined herein shall have the meanings set forth in the Indenture.

2. The Additional Subsidiary Guarantor hereby agrees to provide an unconditional Subsidiary Guarantee on the terms and subject to the conditions and limitations set forth in the Indenture, including but not limited to Article 10 of the Indenture.

3. This First Supplemental Indenture shall be construed as supplemental to the Indenture and shall form a part thereof, and the Indenture is hereby incorporated by reference herein and, as supplemented, modified and restated hereby, is hereby ratified, approved and confirmed.


4. This First Supplemental Indenture shall be effective as of the date hereof. On and after the date hereof, each reference in the Indenture to “this Indenture,” “hereunder,” “hereof,” or “herein” shall mean and be a reference to the Indenture as supplemented by this First Supplemental Indenture unless the context otherwise requires.

5. Except as provided below, in the event of a conflict between the terms and conditions of the Indenture and the terms and conditions of this First Supplemental Indenture, the terms and conditions of this First Supplemental Indenture shall prevail.

6. If any provision of this First Supplemental Indenture limits, qualifies or conflicts with another provision of the Indenture that is required to be included by the Trust Indenture Act of 1939, as amended (the “Act” ), as in force at the date this First Supplemental Indenture is executed, the provision required by said Act shall control.

7. This First Supplemental Indenture shall be governed and construed in accordance with the laws of the State of New York.

8. This First Supplemental Indenture may be signed in any number of counterparts with the same effect as if the signatures to each counterpart were upon a single instrument, and all such counterparts together shall be deemed an original of this First Supplemental Indenture.

9. The recitals contained in this First Supplemental Indenture shall be taken as the statements of the Corporation, and the Trustee assumes no responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this First Supplemental Indenture.

[SIGNATURES ON FOLLOWING PAGES]


IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental Indenture to be duly executed as of the day and year first above written.

CORPORATION:

VIDÉOTRON LTÉE

 

By :  

/s/ Hugues Simard

    By :  

/s/ Chloé Poirier

Name :   Hugues Simard     Name :   Chloé Poirier
Title :   Senior Vice President and Chief Financial Officer     Title :   Vice President and Treasurer

ADDITIONAL SUBSIDIARY GUARANTOR:

4DEGRÉS COLOCATION INC.

 

By :  

/s/ Jean-François Pruneau

    By :  

/s/ Dominique Poulin-Gouin

Name :   Jean-François Pruneau     Name :   Dominique Poulin-Gouin
Title :   Vice President     Title :   Assistant Secretary

TRUSTEE:

WELLS FARGO BANK, NATIONAL ASSOCIATION

 

By :  

/s/ Yana Kislenko

     
Name :   Yana Kislenko      
Title :   Vice President      

 

First Supplemental Indenture to 2012 Indenture

Exhibit 2.10

 

 

 

VIDEOTRON LTD. / VIDÉOTRON LTÉE

 

 

SECOND SUPPLEMENTAL INDENTURE

Dated as of January 8, 2016

 

 

Wells Fargo Bank, National Association,

Trustee

 

 

 

 

 

 


SECOND SUPPLEMENTAL INDENTURE , dated as of January 8, 2016 (this “Second Supplemental Indenture” ), by and among Videotron Ltd. / Vidéotron Ltée, a corporation under the laws of the Province of Québec (the “ Corporation ”), 9529454 Canada Inc., a corporation under the Canada Business Corporations Act (“ 9529454 ”), 8480869 Canada Inc., a corporation under the Canada Business Corporations Act (“ 8480869 ”), Fibrenoire Inc., a corporation under the Canada Business Corporations Act (“ Fibrenoire ”) and Canadian P2P Fibre Systems Ltd. / Systèmes de Fibres P2P du Canada Ltée (“ Canadian P2P ” and, collectively with 9529454, 8480869 and Fibrenoire, the “ Additional Subsidiary Guarantors ”, each an “ Additional Subsidiary Guarantor ”) and Wells Fargo Bank, National Association, as trustee (the “ Trustee ”), to the Indenture, dated as of March 14, 2012, as supplemented through the date hereof (the “ Indenture ”), by and among the Corporation, each of the subsidiary guarantors party thereto (collectively referred to as the “ Original Subsidiary Guarantors ”), and the Trustee.

WHEREAS, the Corporation, the Original Subsidiary Guarantors and the Trustee have entered into the Indenture governing the Corporation’s 5% Senior Notes due July 15, 2022 (the “ Notes ”);

WHEREAS, Section 4.19 of the Indenture provides that under certain circumstances the Corporation shall cause a Restricted Subsidiary to execute and deliver to the Trustee a supplemental indenture providing for a Subsidiary Guarantee of the payment of the Notes by such Restricted Subsidiary;

WHEREAS, the parties hereto are desirous of further supplementing the Indenture in the manner hereinafter provided for the purpose of providing Subsidiary Guarantees by the Additional Subsidiary Guarantors in accordance with the terms of the Indenture;

WHEREAS, Section 9.01(e) of the Indenture provides that the Corporation and the Trustee may amend or supplement the Indenture without the consent of any Holder to add additional guarantees with respect to the Notes;

WHEREAS, this Second Supplemental Indenture shall not result in a material modification of the Notes for purposes of the Foreign Account Tax Compliance Act; and

WHEREAS, all things necessary have been done to make this Second Supplemental Indenture a valid agreement of the Corporation, each Additional Subsidiary Guarantor and the Trustee, in accordance with its terms.

NOW, THEREFORE, THIS SECOND SUPPLEMENTAL INDENTURE WITNESSETH:

For and in consideration of the premises contained herein, the parties hereto mutually covenant and agree as follows:

1. Terms used in this Second Supplemental Indenture that are not defined herein shall have the meanings set forth in the Indenture.

2. Each Additional Subsidiary Guarantor hereby agrees to provide an unconditional Subsidiary Guarantee on the terms and subject to the conditions and limitations set forth in the Indenture, including but not limited to Article 10 of the Indenture.

 

Second Supplemental Indenture to VL 2012 Indenture


3. This Second Supplemental Indenture shall be construed as supplemental to the Indenture and shall form a part thereof, and the Indenture is hereby incorporated by reference herein and, as supplemented, modified and restated hereby, is hereby ratified, approved and confirmed.

4. This Second Supplemental Indenture shall be effective as of the date hereof. On and after the date hereof, each reference in the Indenture to “this Indenture,” “hereunder,” “hereof,” or “herein” shall mean and be a reference to the Indenture as supplemented by this Second Supplemental Indenture unless the context otherwise requires.

5. Except as provided below, in the event of a conflict between the terms and conditions of the Indenture and the terms and conditions of this Second Supplemental Indenture, the terms and conditions of this Second Supplemental Indenture shall prevail.

6. If any provision of this Second Supplemental Indenture limits, qualifies or conflicts with another provision of the Indenture that is required to be included by the Trust Indenture Act of 1939, as amended (the “ Act ”), as in force at the date this Second Supplemental Indenture is executed, the provision required by said Act shall control.

7. This Second Supplemental Indenture shall be governed and construed in accordance with the laws of the State of New York.

8. This Second Supplemental Indenture may be signed in any number of counterparts with the same effect as if the signatures to each counterpart were upon a single instrument, and all such counterparts together shall be deemed an original of this Second Supplemental Indenture.

9. The recitals contained in this Second Supplemental Indenture shall be taken as the statements of the Corporation, and the Trustee assumes no responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Second Supplemental Indenture.

[SIGNATURES ON FOLLOWING PAGES]

 

Second Supplemental Indenture to VL 2012 Indenture


IN WITNESS WHEREOF, the parties hereto have caused this Second Supplemental Indenture to be duly executed as of the day and year first above written.

CORPORATION:

VIDÉOTRON LTÉE

 

By :  

/s/ Hugues Simard

    By :  

/s/ Chloé Poirier

Name :   Hugues Simard     Name :   Chloé Poirier
Title :   Senior Vice President and Chief Financial Officer     Title ::   Vice President and Treasurer

ADDITIONAL SUBSIDIARY GUARANTORS:

9529454 CANADA INC.

 

By :  

/s/ Hugues Simard

    By :  

/s/ Chloé Poirier

Name :   Hugues Simard     Name :   Chloé Poirier
Title :   Vice President Finance     Title ::   Vice President and Treasurer

8480869 CANADA INC.

 

By :  

/s/ Hugues Simard

    By :  

/s/ Chloé Poirier

Name :   Hugues Simard     Name :   Chloé Poirier
Title :   Vice President     Title ::   Vice President and Treasurer

FIBRENOIRE INC.

 

By :  

/s/ Hugues Simard

    By :  

/s/ Chloé Poirier

Name :   Hugues Simard     Name :   Chloé Poirier
Title :   Vice President     Title ::   Vice President and Treasurer

CANADIAN P2P FIBRE SYSTEMS LTD.

 

By :  

/s/ Hugues Simard

    By :  

/s/ Chloé Poirier

Name :   Hugues Simard     Name :   Chloé Poirier
Title :   Vice President     Title ::   Vice President and Treasurer

 

Second Supplemental Indenture to VL 2012 Indenture


TRUSTEE:

WELLS FARGO BANK, NATIONAL ASSOCIATION

 

By :  

/s/ Yana Kislenko

Name :   Yana Kislenko
Title :   Vice President

 

Second Supplemental Indenture to VL 2012 Indenture

Exhibit 2.14

 

 

 

VIDEOTRON LTD. / VIDÉOTRON LTÉE

 

 

FIRST SUPPLEMENTAL INDENTURE

Dated as of March 12, 2015

 

 

Computershare Trust Company of Canada,

Trustee

 

 

 

 

 

 


FIRST SUPPLEMENTAL INDENTURE , dated as of March 12, 2015 (this “First Supplemental Indenture” ), by and among Videotron Ltd. / Vidéotron Ltée, a corporation under the laws of the Province of Québec (the “Corporation” ), 4Degrés Colocation inc. / 4Degrees Colocation Inc., a corporation under the Canada Business Corporations Act (the “ Additional Subsidiary Guarantor ”) and Computershare Trust Company of Canada, as trustee (the “ Trustee ”), to the Indenture, dated as of June 17, 2013, as supplemented through the date hereof (the “ Indenture ”), by and among the Corporation, each of the subsidiary guarantors party thereto (collectively referred to as the “ Original Subsidiary Guarantors ”), and the Trustee.

WHEREAS, the Corporation, the Original Subsidiary Guarantors and the Trustee have entered into the Indenture governing the Corporation’s 5  5 / 8 % Senior Notes due June 15, 2025 (the “Notes” );

WHEREAS, Section 4.19 of the Indenture provides that under certain circumstances the Corporation shall cause a Restricted Subsidiary to execute and deliver to the Trustee a supplemental indenture providing for a Subsidiary Guarantee of the payment of the Notes by such Restricted Subsidiary;

WHEREAS, the parties hereto are desirous of further supplementing the Indenture in the manner hereinafter provided for the purpose of providing Subsidiary Guarantees by the Additional Subsidiary Guarantor in accordance with the terms of the Indenture;

WHEREAS, Section 9.01(5) of the Indenture provides that the Corporation and the Trustee may amend or supplement the Indenture without the consent of any Holder to add additional guarantees with respect to the Notes; and

WHEREAS, all things necessary have been done to make this First Supplemental Indenture a valid agreement of the Corporation, the Additional Subsidiary Guarantor and the Trustee, in accordance with its terms.

NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH:

For and in consideration of the premises contained herein, the parties hereto mutually covenant and agree as follows:

1. Terms used in this First Supplemental Indenture that are not defined herein shall have the meanings set forth in the Indenture.

2. The Additional Subsidiary Guarantor hereby agrees to provide an unconditional Subsidiary Guarantee on the terms and subject to the conditions and limitations set forth in the Indenture, including but not limited to Article 10 of the Indenture.

3. This First Supplemental Indenture shall be construed as supplemental to the Indenture and shall form a part thereof, and the Indenture is hereby incorporated by reference herein and, as supplemented, modified and restated hereby, is hereby ratified, approved and confirmed.

4. This First Supplemental Indenture shall be effective as of the date hereof. On and after the date hereof, each reference in the Indenture to “this Indenture,” “hereunder,” “hereof,” or “herein” shall mean and be a reference to the Indenture as supplemented by this First Supplemental Indenture unless the context otherwise requires.


5. Except as provided below, in the event of a conflict between the terms and conditions of the Indenture and the terms and conditions of this First Supplemental Indenture, the terms and conditions of this First Supplemental Indenture shall prevail.

6. If any provision of this First Supplemental Indenture limits, qualifies or conflicts with another provision of the Indenture that is required to be included by the Trust Indenture Act of 1939, as amended (the “Act” ), as in force at the date this First Supplemental Indenture is executed, the provision required by said Act shall control.

7. This First Supplemental Indenture shall be governed and construed in accordance with the laws of the Province of Quebec and the federal laws of Canada applicable therein. The parties hereby acknowledge that they have expressly required this First Supplemental Indenture be drawn up in the English language only. Les parties reconnaissent avoir expressément demandé que la présente convention soit rédigé en anglais seulement .

8. This First Supplemental Indenture may be signed in any number of counterparts with the same effect as if the signatures to each counterpart were upon a single instrument, and all such counterparts together shall be deemed an original of this First Supplemental Indenture.

9. The recitals contained in this First Supplemental Indenture shall be taken as the statements of the Corporation, and the Trustee assumes no responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this First Supplemental Indenture.

[SIGNATURES ON FOLLOWING PAGES]


IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental Indenture to be duly executed as of the day and year first above written.

CORPORATION:

VIDÉOTRON LTÉE

 

By :  

/s/ Hugues Simard

    By :  

/s/ Chloé Poirier

Name :   Hugues Simard     Name :   Chloé Poirier
Title :   Senior Vice President and Chief Financial Officer     Title :   Vice President and Treasurer

ADDITIONAL SUBSIDIARY GUARANTOR:

4DEGRÉS COLOCATION INC.

 

By :  

/s/ Jean-François Pruneau

    By :  

/s/ Dominique Poulin-Gouin

Name :   Jean-François Pruneau     Name :   Dominique Poulin-Gouin
Title :   Vice President     Title :   Assistant Secretary

TRUSTEE:

COMPUTERSHARE TRUST COMPANY OF CANADA

 

By :  

/s/ Fabienne Pinatel

    By :  

/s/ Sophie Brault

Name :   Fabienne Pinatel     Name :   Sophie Brault
Title :   Gestionnaire fiduciaire Corporate Trust Officer     Title :   Corporate Trust Officer

 

First Supplemental Indenture to 2013 Indenture

Exhibit 2.19

 

 

 

VIDEOTRON LTD. / VIDÉOTRON LTÉE

 

 

FIRST SUPPLEMENTAL INDENTURE

Dated as of March 12, 2015

 

 

Wells Fargo Bank, National Association,

Trustee

 

 

 

 

 

 


FIRST SUPPLEMENTAL INDENTURE , dated as of March 12, 2015 (this “First Supplemental Indenture” ), by and among Videotron Ltd. / Vidéotron Ltée, a corporation under the laws of the Province of Québec (the “Corporation” ), 4Degrés Colocation inc. / 4Degrees Colocation Inc., a corporation under the Canada Business Corporations Act (the “ Additional Subsidiary Guarantor ”) and Wells Fargo Bank, National Association, as trustee (the “ Trustee ”), to the Indenture, dated as of April 9, 2014 (the “ Indenture ”), by and among the Corporation, each of the subsidiary guarantors party thereto (collectively referred to as the “ Original Subsidiary Guarantors ”), and the Trustee.

WHEREAS, the Corporation, the Original Subsidiary Guarantors and the Trustee have entered into the Indenture governing the Corporation’s 5  3 / 8 % Senior Notes due June 15, 2024 (the “Notes” );

WHEREAS, Section 4.19 of the Indenture provides that under certain circumstances the Corporation shall cause a Restricted Subsidiary to execute and deliver to the Trustee a supplemental indenture providing for a Subsidiary Guarantee of the payment of the Notes by such Restricted Subsidiary;

WHEREAS, the parties hereto are desirous of further supplementing the Indenture in the manner hereinafter provided for the purpose of providing Subsidiary Guarantees by the Additional Subsidiary Guarantor in accordance with the terms of the Indenture;

WHEREAS, Section 9.01(e) of the Indenture provides that the Corporation and the Trustee may amend or supplement the Indenture without the consent of any Holder to add additional guarantees with respect to the Notes;

WHEREAS, this First Supplemental Indenture shall not result in a material modification of the Notes for purposes of the Foreign Account Tax Compliance Act; and

WHEREAS, all things necessary have been done to make this First Supplemental Indenture a valid agreement of the Corporation, the Additional Subsidiary Guarantor and the Trustee, in accordance with its terms.

NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH:

For and in consideration of the premises contained herein, the parties hereto mutually covenant and agree as follows:

1. Terms used in this First Supplemental Indenture that are not defined herein shall have the meanings set forth in the Indenture.

2. The Additional Subsidiary Guarantor hereby agrees to provide an unconditional Subsidiary Guarantee on the terms and subject to the conditions and limitations set forth in the Indenture, including but not limited to Article 10 of the Indenture.

3. This First Supplemental Indenture shall be construed as supplemental to the Indenture and shall form a part thereof, and the Indenture is hereby incorporated by reference herein and, as supplemented, modified and restated hereby, is hereby ratified, approved and confirmed.


4. This First Supplemental Indenture shall be effective as of the date hereof. On and after the date hereof, each reference in the Indenture to “this Indenture,” “hereunder,” “hereof,” or “herein” shall mean and be a reference to the Indenture as supplemented by this First Supplemental Indenture unless the context otherwise requires.

5. Except as provided below, in the event of a conflict between the terms and conditions of the Indenture and the terms and conditions of this First Supplemental Indenture, the terms and conditions of this First Supplemental Indenture shall prevail.

6. If any provision of this First Supplemental Indenture limits, qualifies or conflicts with another provision of the Indenture that is required to be included by the Trust Indenture Act of 1939, as amended (the “Act” ), as in force at the date this First Supplemental Indenture is executed, the provision required by said Act shall control.

7. This First Supplemental Indenture shall be governed and construed in accordance with the laws of the State of New York.

8. This First Supplemental Indenture may be signed in any number of counterparts with the same effect as if the signatures to each counterpart were upon a single instrument, and all such counterparts together shall be deemed an original of this First Supplemental Indenture.

9. The recitals contained in this First Supplemental Indenture shall be taken as the statements of the Corporation, and the Trustee assumes no responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this First Supplemental Indenture.

[SIGNATURES ON FOLLOWING PAGES]


IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental Indenture to be duly executed as of the day and year first above written.

CORPORATION:

VIDÉOTRON LTÉE

 

By :  

/s/ Hugues Simard

    By :  

/s/ Chloé Poirier

Name :   Hugues Simard     Name :   Chloé Poirier
Title :   Senior Vice President and Chief     Title :   Vice President and Treasurer
  Financial Officer      

ADDITIONAL SUBSIDIARY GUARANTOR:

4DEGRÉS COLOCATION INC.

 

By :  

/s/ Jean-François Pruneau

    By :  

/s/ Dominique Poulin-Gouin

Name :   Jean-François Pruneau     Name :   Dominique Poulin-Gouin
Title :   Vice President     Title :   Assistant Secretary

TRUSTEE:

WELLS FARGO BANK, NATIONAL ASSOCIATION

 

By :  

/s/ Yana Kislenko

     
Name :   Yana Kislenko      
Title :   Vice President      

First Supplemental Indenture to 2014 Indenture

Exhibit 2.20

 

 

 

VIDEOTRON LTD. / VIDÉOTRON LTÉE

 

 

SECOND SUPPLEMENTAL INDENTURE

Dated as of January 8, 2016

 

 

Wells Fargo Bank, National Association,

Trustee

 

 

 

 

 

 


SECOND SUPPLEMENTAL INDENTURE , dated as of January 8, 2016 (this “Second Supplemental Indenture” ), by and among Videotron Ltd. / Vidéotron Ltée, a corporation under the laws of the Province of Québec (the “Corporation” ), 9529454 Canada Inc., a corporation under the Canada Business Corporations Act (“ 9529454 ”), 8480869 Canada Inc., a corporation under the Canada Business Corporations Act (“ 8480869 ”), Fibrenoire Inc., a corporation under the Canada Business Corporations Act (“ Fibrenoire ”) and Canadian P2P Fibre Systems Ltd. / Systèmes de Fibres P2P du Canada Ltée (“ Canadian P2P ” and, collectively with 9529454, 8480869 and Fibrenoire, the “ Additional Subsidiary Guarantors ”, each an “ Additional Subsidiary Guarantor ”) and Wells Fargo Bank, National Association, as trustee (the “ Trustee ”), to the Indenture, dated as of April 9, 2014, as supplemented through the date hereof (the “ Indenture ”), by and among the Corporation, each of the subsidiary guarantors party thereto (collectively referred to as the “ Original Subsidiary Guarantors ”), and the Trustee.

WHEREAS, the Corporation, the Original Subsidiary Guarantors and the Trustee have entered into the Indenture governing the Corporation’s 5  3 / 8 % Senior Notes due June 15, 2024 (the “Notes” );

WHEREAS, Section 4.19 of the Indenture provides that under certain circumstances the Corporation shall cause a Restricted Subsidiary to execute and deliver to the Trustee a supplemental indenture providing for a Subsidiary Guarantee of the payment of the Notes by such Restricted Subsidiary;

WHEREAS, the parties hereto are desirous of further supplementing the Indenture in the manner hereinafter provided for the purpose of providing Subsidiary Guarantees by the Additional Subsidiary Guarantors in accordance with the terms of the Indenture;

WHEREAS, Section 9.01(e) of the Indenture provides that the Corporation and the Trustee may amend or supplement the Indenture without the consent of any Holder to add additional guarantees with respect to the Notes;

WHEREAS, this Second Supplemental Indenture shall not result in a material modification of the Notes for purposes of the Foreign Account Tax Compliance Act; and

WHEREAS, all things necessary have been done to make this Second Supplemental Indenture a valid agreement of the Corporation, each Additional Subsidiary Guarantor and the Trustee, in accordance with its terms.

NOW, THEREFORE, THIS SECOND SUPPLEMENTAL INDENTURE WITNESSETH:

For and in consideration of the premises contained herein, the parties hereto mutually covenant and agree as follows:

1. Terms used in this Second Supplemental Indenture that are not defined herein shall have the meanings set forth in the Indenture.

2. Each Additional Subsidiary Guarantor hereby agrees to provide an unconditional Subsidiary Guarantee on the terms and subject to the conditions and limitations set forth in the Indenture, including but not limited to Article 10 of the Indenture.

 

Second Supplemental Indenture to VL 2014 Indenture


3. This Second Supplemental Indenture shall be construed as supplemental to the Indenture and shall form a part thereof, and the Indenture is hereby incorporated by reference herein and, as supplemented, modified and restated hereby, is hereby ratified, approved and confirmed.

4. This Second Supplemental Indenture shall be effective as of the date hereof. On and after the date hereof, each reference in the Indenture to “this Indenture,” “hereunder,” “hereof,” or “herein” shall mean and be a reference to the Indenture as supplemented by this Second Supplemental Indenture unless the context otherwise requires.

5. Except as provided below, in the event of a conflict between the terms and conditions of the Indenture and the terms and conditions of this Second Supplemental Indenture, the terms and conditions of this Second Supplemental Indenture shall prevail.

6. If any provision of this Second Supplemental Indenture limits, qualifies or conflicts with another provision of the Indenture that is required to be included by the Trust Indenture Act of 1939, as amended (the “Act” ), as in force at the date this Second Supplemental Indenture is executed, the provision required by said Act shall control.

7. This Second Supplemental Indenture shall be governed and construed in accordance with the laws of the State of New York.

8. This Second Supplemental Indenture may be signed in any number of counterparts with the same effect as if the signatures to each counterpart were upon a single instrument, and all such counterparts together shall be deemed an original of this Second Supplemental Indenture.

9. The recitals contained in this Second Supplemental Indenture shall be taken as the statements of the Corporation, and the Trustee assumes no responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Second Supplemental Indenture.

[SIGNATURES ON FOLLOWING PAGES]

 

Second Supplemental Indenture to VL 2014 Indenture


IN WITNESS WHEREOF, the parties hereto have caused this Second Supplemental Indenture to be duly executed as of the day and year first above written.

CORPORATION:

VIDÉOTRON LTÉE

 

By :  

/s/ Hugues Simard

    By :  

/s/ Chloé Poirier

Name :   Hugues Simard     Name :   Chloé Poirier
Title :   Senior Vice President and Chief Financial Officer     Title ::   Vice President and Treasurer

ADDITIONAL SUBSIDIARY GUARANTORS:

9529454 CANADA INC.

 

By :  

/s/ Hugues Simard

    By :  

/s/ Chloé Poirier

Name :   Hugues Simard     Name :   Chloé Poirier
Title :   Vice President Finance     Title ::   Vice President and Treasurer

8480869 CANADA INC.

 

By :  

/s/ Hugues Simard

    By :  

/s/ Chloé Poirier

Name :   Hugues Simard     Name :   Chloé Poirier
Title :   Vice President     Title ::   Vice President and Treasurer

FIBRENOIRE INC.

 

By :  

/s/ Hugues Simard

    By :  

/s/ Chloé Poirier

Name :   Hugues Simard     Name :   Chloé Poirier
Title :   Vice President     Title ::   Vice President and Treasurer

CANADIAN P2P FIBRE SYSTEMS LTD.

 

By :  

/s/ Hugues Simard

    By :  

/s/ Chloé Poirier

Name :   Hugues Simard     Name :   Chloé Poirier
Title :   Vice President     Title ::   Vice President and Treasurer

 

Second Supplemental Indenture to VL 2014 Indenture


TRUSTEE:

WELLS FARGO BANK, NATIONAL ASSOCIATION

 

By :

 

/s/ Yana Kislenko

Name :

 

Yana Kislenko

Title :

 

Vice President

 

Second Supplemental Indenture to VL 2014 Indenture

Exhibit 2.23

 

 

 

VIDEOTRON LTD./VIDÉOTRON LTÉE

$375,000,000

5.75% SENIOR NOTES DUE JANUARY 15, 2026

 

 

INDENTURE

Dated as of September 15, 2015

 

 

COMPUTERSHARE TRUST COMPANY OF CANADA

as Trustee

 

 

 


This INDENTURE, dated as of September 15, 2015, is by and among VIDEOTRON LTD., a corporation under the laws of the Province of Québec, each Subsidiary Guarantor listed on the signature pages hereto, and COMPUTERSHARE TRUST COMPANY OF CANADA, as trustee (the “ Trustee ”).

The Company, each Subsidiary Guarantor and the Trustee agree as follows for the benefit of each other and for the equal and ratable benefit of the Holders of the 5.75% Senior Notes due January 15, 2026 issued under this Indenture (the “ Notes ”):

ARTICLE 1.

DEFINITIONS AND INCORPORATION BY REFERENCE

Section   1.01.      Definitions .

For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:

144A Global Note ” means a Global Note in the form of Exhibit A hereto bearing the Global Note Legend and the Private Placement Legend and deposited with and registered in the name of the Depositary or its nominee that will be issued in a denomination equal to the outstanding principal amount of the Notes sold for initial resale in reliance on Rule 144A.

144A Legend ” means the legend set forth in Section 2.06(f)(i)(A) hereof, to be placed on all Notes issued under this Indenture, except as otherwise permitted by the provisions of this Indenture.

1933 Act ” means the United States Securities Act of 1933, as amended, and the rules and regulations thereunder, including any successor legislation and rules and regulations.

Accounts Receivable Entity ” means a Subsidiary of the Company or any other Person in which the Company or any of its Restricted Subsidiaries makes an Investment:

(1) that is formed solely for the purpose of, and that engages in no activities other than activities in connection with, financing accounts receivable;

(2) that is designated as an Accounts Receivable Entity;

(3) no portion of the Indebtedness or any other obligation (contingent or otherwise) of which (a) is at any time guaranteed by the Company or any of its Restricted Subsidiaries (excluding guarantees of obligations (other than any guarantee of Indebtedness) pursuant to Standard Securitization Undertakings), (b) is at any time recourse to or obligates the Company or any of its Restricted Subsidiaries in any way, other than pursuant to Standard Securitization Undertakings, or (c) subjects any asset of the Company or any other Restricted Subsidiary of the Company, directly or indirectly, contingently or otherwise, to the satisfaction thereof, other than pursuant to Standard Securitization Undertakings (such Indebtedness, “Non-Recourse Accounts Receivable Entity Indebtedness”);

(4) with which neither the Company nor any of its Restricted Subsidiaries has any material contract, agreement, arrangement or understanding other than contracts, agreements, arrangements and understandings entered into in the ordinary course of business on terms no less favorable to the Company or such Restricted Subsidiary than those that might be obtained at the time from Persons that are not Affiliates of the Company in connection with a Qualified Receivables Transaction and fees payable in the ordinary course of business in connection with servicing accounts receivable in connection with such a Qualified Receivables Transaction; and

(5) with respect to which neither the Company nor any of its Restricted Subsidiaries has any obligation to maintain or preserve the solvency or any balance sheet term, financial condition, level of income or results of operations thereof.

 

2


Acquired Debt ” means, with respect to any specified Person:

 

  (1) Indebtedness of any other Person existing at the time such other Person is merged with or into or becomes a Subsidiary of such specified Person, whether or not such Indebtedness is Incurred in connection with, or in contemplation of, such other Person merging with or into, or becoming a Subsidiary of such specified Person; and

 

  (2) Indebtedness secured by a Lien encumbering any asset acquired by such specified Person.

Additional Notes ” means any Notes (other than Initial Notes and Notes issued under Sections 2.06, 2.07, 2.10 and 3.06 hereof) issued under this Indenture in accordance with Sections 2.02, 2.14 and 4.09 hereof, as part of the same series as the Initial Notes or as an additional series.

Affiliate ” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For purposes of this definition, “control,” as used with respect to any Person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise; provided, however , that beneficial ownership of more than 10% of the Voting Stock of a Person shall be deemed to be control. For purposes of this definition, the terms “controlling,” “controlled by” and “under common control with” shall have correlative meanings.

Agent ” means any Registrar, co-registrar, Paying Agent or additional paying agent.

Applicable Procedures ” means, with respect to any transfer, redemption or exchange of or for beneficial interests in any Global Note, the rules and procedures of the Depositary that apply to such transfer, redemption or exchange.

Approved Credit Rating Organization ” has the meaning given to such term in National Instrument 81-102—Mutual Funds.

Asset Acquisition ” means (a) an Investment by the Company or any Restricted Subsidiary in any other Person pursuant to which such Person shall become a Restricted Subsidiary or shall be consolidated or merged with or into the Company or any Restricted Subsidiary or (b) any acquisition by the Company or any Restricted Subsidiary of the assets of any Person that constitute substantially all of an operating unit, a division or line of business of such Person or that is otherwise outside of the ordinary course of business.

Asset Sale ” means:

 

  (1) the sale, lease, conveyance or other disposition of any assets or rights, other than in the ordinary course of business; provided , however , that the sale, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries, taken as a whole, shall be governed by the provisions of Sections 4.18 and 5.01 hereof and not by the provisions of Section 4.12 hereof; and

 

  (2) the issuance of Equity Interests of any Restricted Subsidiary or the sale of Equity Interests by the Company or any of its Restricted Subsidiaries in any Restricted Subsidiary.

Notwithstanding the preceding, the following items shall not be deemed to be Asset Sales:

 

  (1) any single transaction or series of related transactions that involves assets having a Fair Market Value of less than US$25.0 million;

 

  (2) a sale, lease, conveyance or other disposition of assets between or among the Company and its Restricted Subsidiaries;

 

3


  (3) an issuance of Equity Interests by a Restricted Subsidiary to the Company or to another Restricted Subsidiary;

 

  (4) the sale, lease, conveyance or other disposition of equipment, inventory, accounts receivable or other assets in the ordinary course of business;

 

  (5) the sale or other disposition of cash or Cash Equivalents;

 

  (6) any Tax Benefit Transaction;

 

  (7) a Restricted Payment or Permitted Investment that is permitted by Section 4.10 hereof;

 

  (8) the issuance of Equity Interests of any of the Company’s Restricted Subsidiaries; provided, that after such issuance the Company’s ownership interests in such Restricted Subsidiary, whether directly or through its Restricted Subsidiaries, is at least equal to its ownership interests in such Restricted Subsidiary prior to such issuance;

 

  (9) the issuance of Equity Interests of any Subsidiary pursuant to any equity compensation plan entered into in the ordinary course of business; provided, however, that the aggregate Fair Market Value of all such issued and outstanding Equity Interests shall not exceed US$5.0 million in any twelve-month period;

 

  (10) sales of accounts receivables pursuant to a Qualified Receivables Transaction for the Fair Market Value thereof, including cash in an amount equal to at least 75% of the Fair Market Value thereof;

 

  (11) any transfer of accounts receivable, or a fractional undivided interest therein, by an Accounts Receivable Entity in a Qualified Receivables Transaction; and

 

  (12) any Asset Swap.

Asset Swap ” means an exchange of assets by the Company or a Restricted Subsidiary for:

 

  (1) one or more Permitted Businesses;

 

  (2) a controlling equity interest in any Person whose assets consist primarily of one or more Permitted Businesses; provided such Person becomes a Restricted Subsidiary; and/or

 

  (3) long-term assets that are used in a Permitted Business in a like-kind exchange or transfer.

Attributable Debt ” in respect of a sale and leaseback transaction means, at the time of determination, the present value of the obligation of the lessee for net rental payments during the remaining term of the lease included in such sale and leaseback transaction including any period for which such lease has been extended or may, at the option of the lessor, be extended. Such present value shall be calculated using a discount rate equal to the rate of interest implicit in such transaction, determined in accordance with GAAP.

Back-to-Back Debt ” means any loans made or debt instruments issued as part of a Back-to-Back Transaction and in which each party to such Back-to-Back Transaction, other than a Videotron Entity, executes or has executed a subordination agreement in favor of the Holders in substantially the form attached hereto as Exhibit F .

Back-to-Back Preferred Shares ” means Preferred Shares issued:

 

  (1) to a Videotron Entity by an Affiliate of the Company in circumstances where, immediately prior to or after, as the case may be, the issuance of such Preferred Shares, an Affiliate of such Videotron Entity has loaned on an unsecured basis to such Videotron Entity, or an Affiliate of such Videotron Entity has subscribed for Preferred Shares of such Videotron Entity in, an amount equal to the requisite subscription price for such Preferred Shares;

 

4


  (2) by a Videotron Entity to one of its Affiliates in circumstances where, immediately prior to or after, as the case may be, the issuance of such Preferred Shares, such Videotron Entity has loaned an amount equal to the proceeds of such issuance to an Affiliate on an unsecured basis; or

 

  (3) by a Videotron Entity to one of its Affiliates in circumstances where, immediately prior to or after, as the case may be, the issuance of such Preferred Shares, such Videotron Entity has used the proceeds of such issuance to subscribe for Preferred Shares issued by an Affiliate;

in each case on terms whereby:

 

  (i) the aggregate redemption amount applicable to the Preferred Shares issued to or by such Videotron Entity is identical:

 

  (A) in the case of (1) above, to the principal amount of the loan made or the aggregate redemption amount of the Preferred Shares subscribed for by such Affiliate;

 

  (B) in the case of (2) above, to the principal amount of the loan made to such Affiliate; or

 

  (C) in the case of (3) above, to the aggregate redemption amount of the Preferred Shares issued by such Affiliate;

 

  (ii) the dividend payment date applicable to the Preferred Shares issued to or by such Videotron Entity shall:

 

  (A) in the case of (1) above, be immediately prior to, or on the same date as, the interest payment date relevant to the loan made or the dividend payment date on the Preferred Shares subscribed for by such Affiliate;

 

  (B) in the case of (2) above, be immediately after, or on the same date as, the interest payment date relevant to the loan made to such Affiliate; or

 

  (C) in the case of (3) above, be immediately after, or on the same date as, the dividend payment date on the Preferred Shares issued by such Affiliate;

 

  (iii) the amount of dividends provided for on any payment date in the share conditions attaching to the Preferred Shares issued:

 

  (A) to a Videotron Entity in the case of (1) above, shall be equal to or in excess of the amount of interest payable in respect of the loan made or the amount of dividends provided for in respect of the Preferred Shares subscribed for by such Affiliate;

 

  (B) by a Videotron Entity in the case of (2) above, shall be less than or equal to the amount of interest payable in respect of the loan made to such Affiliate; or

 

  (C) by a Videotron Entity in the case of (3) above, shall be equal to the amount of dividends in respect of the Preferred Shares issued by such Affiliate;

and provided that, in the case of Preferred Shares issued by a Restricted Subsidiary that is not a Subsidiary Guarantor, each holder of such Preferred Shares under such Back-to-Back Transaction, other than such Restricted Subsidiary, executes a subordination agreement in favor of the Holders in substantially the form attached hereto as Exhibit F.

 

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Back-to-Back Securities ” means Back-to-Back Preferred Shares or Back-to-Back Debt or both, as the context requires; provided that a Back-to-Back Security issued by any Restricted Subsidiary that is not a Subsidiary Guarantor (A) shall provide that (i) such Restricted Subsidiary shall suspend any payment on such Back-to-Back Security until such Restricted Subsidiary receives payment on the corresponding Back-to-Back Security in an amount equal to or exceeding the amount to be paid on the Back-to-Back Security issued by such Restricted Subsidiary and (ii) if the holder of such Back-to-Back Security is paid any amount on or with respect to such Back-to-Back Security by such Restricted Subsidiary, then to the extent such amounts are paid out of proceeds in excess of the corresponding payment received by such Restricted Subsidiary on the corresponding Back-to-Back Security held by it, the holder of such Back-to-Back Security will hold such excess payment in trust for the benefit of such Restricted Subsidiary and will forthwith repay such payment to such Restricted Subsidiary and (B) may provide that, notwithstanding clause (A), such Restricted Subsidiary may make payment on such Back-to-Back Security if at the time of payment such Restricted Subsidiary would be permitted to make such payment under Section 4.10 hereof; provided that any payment made pursuant to this clause (B) which is otherwise prohibited under clause (A) would constitute a Restricted Payment.

Back-to-Back Transaction ” means any of the transactions described under the definition of Back-to-Back Preferred Shares.

Bankruptcy Law ” means Title 11, U.S. Code or any similar federal or state law for the relief of debtors, the Bankruptcy and Insolvency Act (Canada), the Companies’ Creditors Arrangement Act (Canada) or any other Canadian federal or provincial law or the law of any other jurisdiction relating to bankruptcy, insolvency, winding up, liquidation, reorganization or relief of debtors.

“Beneficial Owner” has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under the Exchange Act, except that in calculating the beneficial ownership of any particular “person” (as such term is used in Section 13(d)(3) of the Exchange Act), such “person” shall be deemed to have beneficial ownership of all securities that such “person” has the right to acquire by conversion or exercise of other securities, whether such right is currently exercisable or is exercisable only upon the occurrence of a subsequent condition. The terms “Beneficially Owns” and “Beneficially Owned” shall have corresponding meanings.

Board of Directors ” means:

 

  (1) with respect to a corporation, the board of directors of the corporation;

 

  (2) with respect to a partnership, the board of directors or other governing body of the general partner(s) of the partnership; and

 

  (3) with respect to any other Person, the board or committee of such Person serving a similar function.

Board Resolution” means a copy of a resolution certified by the secretary or an assistant secretary (or individual performing comparable duties) of the applicable Person to have been duly adopted by the Board of Directors of such Person and to be in full force and effect on the date of such certification, and delivered to the Trustee.

Book-Entry System ” means the record entry and securities transfer and pledge system, which is administered by the Depositary in accordance with the operating rules and procedures of its securities settlement service for book-entry only notes in force from time to time, or any successor system.

Book- Entry Only Form ”, when used with respect to Notes, means Notes certified and delivered under the Book-Entry System other than Definitive Notes.

Business Day ” means any day other than a Legal Holiday.

 

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“Canada Bond Yield” means, on any date, the bid yield to maturity on such date compounded semi-annually which a non-callable non-amortizing Government of Canada nominal bond would be expected to carry if issued, in Canadian dollars in Canada, at 100% of its principal amount on such date with a term to maturity which most closely approximates the remaining term to September 15, 2020 on such date, as determined by the Company based on a linear interpolation of the yields represented by the arithmetic average of bids observed in the market place at or about 11:00 a.m. (Toronto time), on the relevant date for each of the two (2) outstanding non-callable non-amortizing Government of Canada nominal bonds which have the terms to maturity which most closely span the remaining term to September 15, 2020 on such date, where such arithmetic average is based in each case on the bids quoted to an independent investment dealer acting as agent of the Company by two (2) independent registered members of the Investment Industry Regulatory Organization of Canada selected by the Company (and acceptable to the Trustee, acting reasonably), calculated in accordance with standard practice in the industry.

“Canada Yield Price” means the price for the Notes, as determined by an independent investment dealer selected by the Company and acceptable to the Trustee, acting reasonably, as of the Business Day immediately preceding the day on which the notice of redemption for prepayment is given, equal to the sum of the present values of (1) the redemption price of such Notes at September 15, 2020 (such redemption price being described under Section 3.07) plus (2) the scheduled payments of interest on the Notes remaining between the date of redemption and September 15, 2020 (not including any portion of the scheduled payments of interest accrued as of the relevant redemption date) discounted to the relevant redemption date on a semi-annual basis (assuming a 365-day year) at the discount rate equal to the sum of the Canada Bond Yield for such Notes and the Canada Yield Spread.

“Canada Yield Spread” means 1.00% (or 100 basis points) per annum.

Canadian Placement Global Note ” means a Global Note in the form of Exhibit A hereto bearing the Global Note Legend and the Private Placement Legend and deposited with and registered in the name of the Depositary or its nominee that will be issued in a denomination equal to the outstanding principal amount of the Notes sold for initial resale in reliance on available prospectus and dealer registration exemptions in Canada and in reliance on Regulation S.

Canadian Placement Legend ” means the legend set forth in Section 2.06(f)(i)(B) hereof, to be placed on all Notes issued under the Indenture, unless otherwise permitted by the provisions of this Indenture.

Canadian Taxing Authority ” means any federal, provincial, territorial or other Canadian government or any authority or agency therein having the power to tax.

Capital Lease Obligation ” means, at the time any determination thereof is to be made, the amount of the liability in respect of a capital lease that would at that time be required to be capitalized on a balance sheet in accordance with GAAP. Notwithstanding the foregoing, any lease (whether entered into before or after December 31, 2012) that would have been classified as an operating lease pursuant to GAAP as in effect on December 31, 2012 shall be deemed not to be a capital lease or a financing lease.

Capital Stock ” means:

 

  (1) in the case of a corporation, corporate stock;

 

  (2) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock;

 

  (3) in the case of a partnership or limited liability company, partnership or membership interests (whether general or limited); and

 

  (4) any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person.

 

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Capital Stock Sale Proceeds ” means the aggregate net cash proceeds received by the Company after October 8, 2003:

 

  (1) as a contribution to the common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Stock or Back-to-Back Securities); or

 

  (2) from the issue or sale of convertible or exchangeable Disqualified Stock or convertible or exchangeable debt securities of the Company that have been converted into or exchanged for such Equity Interests,

other than, in either (1) or (2), Equity Interests (or convertible or exchangeable Disqualified Stock or convertible or exchangeable debt securities) sold to a Subsidiary of the Company.

Cash Equivalents ” means:

 

  (1) United States dollars or Canadian dollars;

 

  (2) investments in securities with maturities of one year or less from the date of acquisition issued or fully guaranteed by any state, commonwealth, territory or province of the United States of America or Canada, or by any political subdivision or taxing authority thereof, and rated, at the time of acquisition, in the “R-1” category by DBRS (or the equivalent rating issued by any other Approved Credit Rating Organization);

 

  (3) certificates of deposit and eurodollar time deposits with maturities of one year or less from the date of acquisition, bankers’ acceptances with maturities not exceeding one year and overnight bank deposits, in each case, with any domestic commercial bank having capital and surplus in excess of US$500.0 million;

 

  (4) repurchase obligations with a term of not more than seven days for underlying securities of the types described in clauses (2) and (3) above entered into with any financial institution meeting the qualifications specified in clause (3) above;

 

  (5) commercial paper having, at the time of acquisition, the highest rating obtainable from Moody’s Investors Service, Inc. or Standard & Poor’s Rating Services and in each case maturing within one year after the date of acquisition or with respect to commercial paper in Canada, a rating, at the time of acquisition, in the “R-1” category by DBRS (or the equivalent rating issued by any other Approved Credit Rating Organization); and

 

  (6) money market funds at least 90% of the assets of which constitute Cash Equivalents of the kinds described in clauses (1) through (5) of this definition.

CDS ” means CDS Clearing and Depository Services Inc.

Change of Control ” means the occurrence of any of the following:

 

  (1) the direct or indirect sale, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the properties or assets of the Company and the Restricted Subsidiaries, taken as a whole, to any “person” (as that term is used in Section 13(d)(3) of the Exchange Act) other than a Permitted Holder or a Related Party;

 

  (2) the adoption of a plan relating to the liquidation or dissolution of the Company;

 

  (3) the consummation of any transaction (including, without limitation, any merger or consolidation) the result of which is that any Person, other than a Permitted Holder or a Related Party, becomes the Beneficial Owner, directly or indirectly, of more than 50% of the Voting Stock of the Company, measured by voting power rather than number of shares; or

 

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  (4) during any consecutive two-year period, the first day on which individuals who constituted the Board of Directors of the Company as of the beginning of such two-year period (together with any new directors who were nominated for election or elected to such Board of Directors with the approval of a majority of the individuals who were members of such Board of Directors, or whose nomination or election was previously so approved at the beginning of such two-year period) cease to constitute a majority of the Board of Directors of the Company.

Change of Control Triggering Event ” means the occurrence of both a Change of Control and a Ratings Event.

Civil Code ” means the Civil Code of Quebec , as amended from time to time.

Code ” means the U.S. Internal Revenue Code of 1986, as amended.

Commission ” means the U.S. Securities and Exchange Commission and any successor entity thereto.

“Company” means Videotron Ltd. (Vidéotron Ltée in its French version) and any successor thereto.

Consolidated Cash Flow ” means, with respect to any specified Person for any period, the Consolidated Net Income of such Person for such period plus:

 

  (1) provision for taxes based on income or profits of such Person and its Restricted Subsidiaries for such period, to the extent that such provision for taxes was deducted in computing such Consolidated Net Income; plus

 

  (2) Consolidated Interest Expense of such Person and its Restricted Subsidiaries for such period, including for the purpose of this clause (2) any interest expense on the QMI Subordinated Loan that was otherwise excluded from the definition of Consolidated Interest Expense, in each case to the extent that any such expense was deducted in computing such Consolidated Net Income; plus

 

  (3) depreciation, amortization (including amortization of goodwill and other intangibles, but excluding amortization of prepaid cash expenses that were paid in a prior period to the extent such expense is amortized) and other non-cash expenses (excluding any such non-cash expense to the extent that it represents (i) an accrual of or reserve for cash expenses in any future period, or (ii) amortization of a prepaid cash expense that was paid in a prior period to the extent such expense is amortized) of such Person and its Restricted Subsidiaries for such period, to the extent that such depreciation, amortization and other non-cash expenses were deducted in computing such Consolidated Net Income; minus

 

  (4) any interest and other payments made to Persons other than any Videotron Entity in respect of Back-to-Back Securities to the extent such interest and other payments were not deducted in computing such Consolidated Net Income; minus

 

  (5) non-cash items increasing such Consolidated Net Income for such period, other than the accrual of revenue in the ordinary course of business,

in each case, on a consolidated basis and determined in accordance with GAAP.

Notwithstanding the foregoing, the provision for taxes based on the income or profits of, the Consolidated Interest Expense of and the depreciation and amortization and other non-cash expenses of a Restricted Subsidiary shall be added to Consolidated Net Income to compute Consolidated Cash Flow of the Company only to the extent that a corresponding amount would be permitted at the date of determination to be dividended or distributed to the Company by such Restricted Subsidiary without prior governmental approval (unless such approval has been obtained), and without direct or indirect restriction pursuant to the terms of its charter and all agreements, instruments, judgments, decrees, orders, statutes, rules and governmental regulations applicable to that Restricted Subsidiary or its shareholders.

 

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Consolidated Indebtedness ” means, with respect to any Person as of any date of determination, without duplication, the total amount of Indebtedness of such Person and its Restricted Subsidiaries, including (i) the total amount of Indebtedness of any other Person, to the extent that such Indebtedness has been guaranteed by the referent Person or one or more of its Restricted Subsidiaries, and (ii) the aggregate liquidation value of all Disqualified Stock of such Person and all Preferred Shares of Restricted Subsidiaries of such Person, in each case, determined on a consolidated basis in accordance with GAAP.

Consolidated Interest Expense ” means, with respect to any Person, for any period, without duplication, the sum of (i) the consolidated interest expense of such Person and its Restricted Subsidiaries for such period, whether paid or accrued (including, without limitation, amortization of original issue discount, non-cash interest payments, the interest component of any deferred payment Obligations, the interest component of all payments associated with Capital Lease Obligations, imputed interest with respect to Attributable Debt, commissions, discounts, and other fees, and charges Incurred in respect of letter of credit or bankers’ acceptance financings), all calculated after taking into account the effect of all Hedging Obligations, (ii) the consolidated interest expense of such Person and its Restricted Subsidiaries that was capitalized during such period, (iii) any interest expense on Indebtedness of another Person that is guaranteed by such Person or any of its Restricted Subsidiaries or secured by a Lien on assets of such Person or any of its Restricted Subsidiaries (whether or not such guarantee or Lien is called upon), (iv) the product of (a) all dividend payments on any series of Preferred Shares of such Person or any of its Restricted Subsidiaries, times (b) a fraction, the numerator of which is one and the denominator of which is one minus the then current combined federal, state, provincial, territorial and local statutory tax rate of such Person, expressed as a decimal, in each case, on a consolidated basis and in accordance with GAAP, and (v) to the extent not included in clause (iv) above for purposes of GAAP, the product of (a) all dividend payments on any series of Disqualified Stock of such Person or any of its Restricted Subsidiaries, times (b) a fraction, the numerator of which is one and the denominator of which is one minus the then current combined federal, state, provincial, territorial and local statutory tax rate of such Person, expressed as a decimal, in each case, on a consolidated basis and in accordance with GAAP. Interest and other payments on Back-to-Back Securities, and any accrual, or payment-in-kind, of interest on the QMI Subordinated Loan to the extent that such interest is not paid in cash, shall not be included as Consolidated Interest Expense.

Consolidated Net Income ” means, with respect to any specified Person for any period, the aggregate of the Net Income of such Person and its Restricted Subsidiaries for such period, on a consolidated basis, determined in accordance with GAAP; provided, however, that:

 

  (1) the Net Income (but not loss) of any Person that is not a Restricted Subsidiary (other than an Unrestricted Subsidiary) or that is accounted for by the equity method of accounting shall be included; provided , that the Net Income shall be included only to the extent of the amount of dividends or distributions paid in cash to the specified Person or a Restricted Subsidiary thereof;

 

  (2) the Net Income of any Restricted Subsidiary shall be excluded to the extent that the declaration or payment of dividends or similar distributions by that Restricted Subsidiary of that Net Income is not at the date of determination permitted without any prior governmental approval (unless such approval has been obtained) or, directly or indirectly, by operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to that Subsidiary or its equityholders;

 

  (3) the Net Income of any Person acquired during the specified period for any period prior to the date of such acquisition shall be excluded;

 

  (4) the cumulative effect of a change in accounting principles shall be excluded;

 

  (5) the Net Income (but not loss) of any Unrestricted Subsidiary shall be excluded, whether or not distributed to the specified Person or one of its Subsidiaries; provided, however , that for purposes of Section 4.10 hereof, the Net Income of any Unrestricted Subsidiary shall be included to the extent it would otherwise be included under clause (1) of this definition; and

 

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  (6) any non-cash compensation expense realized for grants of performance shares, stock options or other rights to officers, directors and employees of the Company or any Restricted Subsidiary shall be excluded, provided that such shares, options or other rights can be redeemed at the option of the holders thereof for Capital Stock of the Company or Quebecor Media (other than in each case Disqualified Stock of the Company).

Consolidated Net Tangible Assets ” means, as of the date of determination, with respect to any Person, on a consolidated basis, the total assets of such Person and its Restricted Subsidiaries after deducting therefrom (a) current liabilities excluding Indebtedness, (b) goodwill, (c) intangible assets, except separately acquired stand-alone intangible assets (such as, without limitation, mobile communication licenses) and internally developed intangible assets (such as, without limitation, software), all as set forth on the most recent consolidated balance sheet of such Person and computed in accordance with GAAP.

Consolidated Revenues ” means the gross revenues of the Company and the Restricted Subsidiaries determined on a consolidated basis in accordance with GAAP; provided that (1) any portion of gross revenues derived directly or indirectly from Unrestricted Subsidiaries, including dividends or distributions from Unrestricted Subsidiaries, shall be excluded from such calculation, and (2) any portion of gross revenues derived directly or indirectly from a Person (other than a Subsidiary of the Company or a Restricted Subsidiary) accounted for by the equity method of accounting shall be included in such calculation only to the extent of the amount of dividends or distributions actually paid to the Company or a Restricted Subsidiary by such Person.

Consolidation Transaction ” means Back-to-Back Transactions and any other transaction that serves a similar purpose as a Back-to-Back Transaction.

Corporate Trust Office of the Trustee ” shall be at the address of the Trustee specified in Section 12.01 hereof, or such other address as to which the Trustee may give notice to the Company.

“Credit Agreement” means the amended credit facility between the Company, the guarantor subsidiaries named therein, Royal Bank of Canada, as administrative agent, RBC Dominion Securities Inc. and National Bank of Canada, as co-lead arrangers, and the lenders thereto dated as of November 28, 2000, as thereafter amended.

Credit Facilities ” means, one or more debt facilities (including, without limitation, the Credit Agreement), commercial paper facilities, or other debt arrangements (including, without limitation, under this Indenture), in each case with banks, other institutional lenders or investors, providing for revolving credit loans, term loans, notes, receivables financing (including, to the extent Indebtedness, through the sales of accounts receivables to such lenders or investors or to an Accounts Receivable Entity) or letters of credit, in each case, as amended, restated, modified, renewed, refunded, replaced or refinanced in whole or in part from time to time.

Currency Exchange Protection Agreement ” means, in respect of a Person, any foreign exchange contract, currency swap agreement, currency option or other similar agreement or arrangement designed to protect such Person against fluctuations in currency exchange rates entered into with any commercial bank or other financial institutions having capital and surplus in excess of US$500.0 million.

Custodian ” means, with respect to the Notes issuable or issued in whole or in part in global form, the Person specified in Section 2.03(c) hereof as Custodian with respect to the Notes, and any and all successors thereto appointed as custodian hereunder and having become such pursuant to the applicable provisions of this Indenture.

DBRS ” means, collectively, DBRS Limited, DBRS, Inc. and DBRS Ratings Limited, or any successor to the rating agency business thereof.

Debt to Cash Flow Ratio ” means, as of any date of determination (the “Determination Date”), the ratio of (a) the Consolidated Indebtedness of the Company (excluding the QMI Subordinated Loan) as of such Determination Date to (b) the Consolidated Cash Flow of the Company for the most recently ended fiscal quarter ending immediately prior to such Determination Date for which internal financial statements are available (the “Measurement Period”) multiplied by four, determined on a pro forma basis after giving effect to all acquisitions or

 

11


dispositions of assets made by the Company and the Restricted Subsidiaries from the beginning of such quarters through and including such Determination Date (including any related financing transactions) as if such acquisitions and dispositions had occurred at the beginning of such quarter. For purposes of calculating Consolidated Cash Flow for each Measurement Period immediately prior to the relevant Determination Date, (i) any Person that is a Restricted Subsidiary on the Determination Date (or would become a Restricted Subsidiary on such Determination Date in connection with the transaction that requires the determination of such Consolidated Cash Flow) shall be deemed to have been a Restricted Subsidiary at all times during the applicable Measurement Period; (ii) any Person that is not a Restricted Subsidiary on such Determination Date (or would cease to be a Restricted Subsidiary on such Determination Date in connection with the transaction that requires the determination of such Consolidated Cash Flow) shall be deemed not to have been a Restricted Subsidiary at any time during the applicable Measurement Period; (iii) if the Company or any Restricted Subsidiary shall have in any manner (x) acquired through an Asset Acquisition or (y) disposed of (including by way of an Asset Sale or the termination or discontinuance of activities constituting such operating business) any operating business during the applicable Measurement Period or after the end of such period and on or prior to such Determination Date, such calculation shall be made on a pro forma basis in accordance with GAAP, as if, in the case of an Asset Acquisition, all such transactions (including any related financing transactions) had been consummated on the first day of the applicable Measurement Period, and, in the case of an Asset Sale or termination or discontinuance of activities constituting such operating business, all such transactions (including any related financing transactions) had been consummated prior to the first day of the applicable Measurement Period; (iv) if (A) since the beginning of the applicable Measurement Period, the Company or any Restricted Subsidiary has Incurred any Indebtedness that remains outstanding or has repaid any Indebtedness, or (B) the transaction giving rise to the need to calculate the Debt to Cash Flow Ratio is an Incurrence or repayment of Indebtedness, Consolidated Interest Expense for such Measurement Period shall be calculated after giving effect on a pro forma basis to such Incurrence or repayment as if such Indebtedness was Incurred or repaid on the first day of such period, provided that, in the event of any such repayment of Indebtedness, Consolidated Cash Flow for such period shall be calculated as if the Company or such Restricted Subsidiary had not earned any interest income actually earned during such period in respect of the funds used to repay such Indebtedness; and (v) if any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest expense on such Indebtedness shall be calculated as if the base interest rate in effect for such floating rate of interest on the Determination Date had been the applicable base interest rate for the entire Measurement Period (taking into account any Interest Rate Agreement applicable to such Indebtedness if such Interest Rate Agreement has a remaining term in excess of twelve months). For purposes of this definition, any pro forma calculation shall be made in good faith by a responsible financial or accounting officer of the Company consistent with Article 11 of Regulation S-X of the 1933 Act, as such Regulation may be amended.

Default ” means any event that is, or with the passage of time or the giving of notice or both would be, an Event of Default.

Deferred Management Fees ” means, for any period, any Management Fees that were payable during any prior period, the payment of which was not effected when due.

Definitive Note ” means a certificated Note registered in the name of the Holder thereof and issued in accordance with Section 2.06 or 2.10 hereof, in substantially the form of Exhibit A hereto except that such Note shall not bear the Global Note Legend and shall not have the “Schedule of Exchanges of Interests in the Global Note” attached thereto.

Depositary ” means, with respect to the Notes issuable or issued in whole or in part in global form, the Person specified in Section 2.03(b) hereof as the Depositary with respect to the Notes, and any and all successors thereto appointed as depositary hereunder and having become such pursuant to the applicable provisions of this Indenture.

Disqualified Stock ” means any Capital Stock that, by its terms (or by the terms of any security into which it is convertible, or for which it is exchangeable, in each case at the option of the holder thereof), or upon the happening of any event, matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at the option of the holder thereof, in whole or in part, on or prior to the date that is 91 days after the date on which the Notes mature. Notwithstanding the preceding sentence, (i) Back-to-Back Preferred Shares shall not constitute Disqualified Stock and (ii) any Capital Stock that would constitute Disqualified Stock solely because the

 

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holders thereof have the right to require the Company to repurchase such Capital Stock upon the occurrence of a change of control or an asset sale shall not constitute Disqualified Stock if the terms of such Capital Stock provide that the Company may not repurchase or redeem any such Capital Stock pursuant to such provisions unless such repurchase or redemption complies with the provisions of Section 4.10 hereof. The term “Disqualified Stock” shall also include any options, warrants or other rights that are convertible into Disqualified Stock or that are redeemable at the option of the holder, or required to be redeemed, prior to the date that is 91 days after the date on which the Notes mature.

Distribution Compliance Period ” means the 40-day distribution compliance period as defined in Regulation S.

Equity Interests ” means Capital Stock and all warrants, options or other rights to acquire Capital Stock (but excluding any debt security that is convertible into, or exchangeable for, Capital Stock).

“Equity Offering” means an offering by the Company of Equity Interests (other than Disqualified Stock or Back-to-Back Securities) of the Company however designated and whether voting or non-voting or an equity contribution by a direct or indirect parent company to the common equity of the Company.

“Exchange Act ” means the United States Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder, including any successor legislation and rules and regulations.

Existing Indebtedness ” means Indebtedness of the Company and the Restricted Subsidiaries (other than Indebtedness under the Credit Agreement) in existence on October 8, 2003, until such amounts are repaid.

Existing Notes ” means, collectively, the Company’s issued and outstanding 6  7 / 8 % Senior Notes due July 15, 2021, the Company’s 5% Senior Notes due July 15, 2022, the Company’s 5  3 / 8 % Senior Notes due June 15, 2024 and the Company’s 5  5 / 8 % Senior Notes due June 15, 2025.

fair market value ” or “ Fair Market Value ” means, with respect to any assets (including securities), the price that could be negotiated in an arm’s-length transaction between a willing seller and a willing buyer, neither of whom is under undue pressure or compulsion to complete the transaction; provided that, where such term is capitalized, if the Fair Market Value exceeds US$50.0 million, the determination of Fair Market Value shall be made by the Board of Directors of the Company or an authorized committee thereof in good faith.

GAAP ” means generally accepted accounting principles, consistently applied, as in effect in Canada from time to time, and which, as of the date of this Indenture, is IFRS.

Global Note Legend ” means the legend set forth in Section 2.06(f)(ii) hereof, which is required to be placed on all Global Notes issued under this Indenture.

Global Notes ” means the global Notes in the form of Exhibit A hereto issued in accordance with Article 2 hereof.

“Government Securities” means direct obligations of, or obligations guaranteed by the Government of Canada (or any agency thereof provided the obligations of such agency are guaranteed by the Government of Canada) or any Province of Canada (or any agency thereof provided the obligations of such agency are guaranteed by such government), and which are not callable or redeemable at the issuer’s option.

“G uarantee ” means, as to any Person, a guarantee other than by endorsement of negotiable instruments for collection in the ordinary course of business, direct or indirect, in any manner including, without limitation, by way of a pledge of assets or through letters of credit or reimbursement agreements in respect thereof, of all or any part of any Indebtedness of another Person.

Hedging Obligations ” means, with respect to any specified Person, the obligations of such Person pursuant to any Interest Rate Agreement or Currency Exchange Protection Agreement.

 

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Holder ” means a Person in whose name a Note is registered.

IFRS ” means the international financial reporting standards adopted by the International Accounting Standards Board to the extent applicable at that time to the relevant financial statements.

Incur ” means, with respect to any Indebtedness or other Obligation of any Person, to create, incur, issue, assume, guarantee or otherwise become indirectly or directly liable, contingently or otherwise, with respect of such Indebtedness or other Obligation.

Indebtedness ” means, with respect to any specified Person, any indebtedness of such Person, whether or not contingent:

 

  (1) representing principal of and premium, if any, in respect of borrowed money;

 

  (2) representing principal of and premium, if any, evidenced by bonds, notes, debentures or similar instruments or letters of credit (or reimbursement agreements in respect thereof);

 

  (3) in respect of bankers’ acceptances;

 

  (4) representing Capital Lease Obligations of such Person and all Attributable Debt in respect of sale and leaseback transactions entered into by such Person;

 

  (5) representing the balance deferred and unpaid of the purchase price of any property, except any such balance that constitutes an accrued expense or trade payable;

 

  (6) representing the amount of all obligations of such Person with respect to the repayment of any Disqualified Stock or, with respect to any Subsidiary of such Person, any Preferred Shares (in each case, valued at the greater of its voluntary or involuntary maximum fixed repurchase price plus accrued dividends); or

 

  (7) representing any Hedging Obligations,

if and to the extent any of the preceding items (other than letters of credit, Hedging Obligations, Attributable Debt, Disqualified Stock and Preferred Shares) would appear as a liability upon a balance sheet of the specified Person prepared in accordance with GAAP. In addition, the term “ Indebtedness” includes all Indebtedness of others secured by a Lien on any asset of the specified Person (whether or not such Indebtedness is assumed by the specified Person) and, to the extent not otherwise included, the guarantee by the specified Person of any Indebtedness of any other Person. For purposes hereof, the “maximum fixed repurchase price” of any Disqualified Stock or Preferred Share which does not have a fixed repurchase price shall be calculated in accordance with the terms of such Disqualified Stock or Preferred Share as if such Disqualified Stock or Preferred Share were purchased on any date on which Indebtedness shall be required to be determined pursuant to this Indenture, and if such price is based upon, or measured by, the Fair Market Value of such Disqualified Stock or Preferred Share, such Fair Market Value, if above $50.0 million, shall be determined in good faith by the Board of Directors of the issuer of such Disqualified Stock or Preferred Share. The term “Indebtedness” will not include Back-to-Back Securities or Standard Securitization Undertakings.

The amount of any Indebtedness described above in clauses (1) through (7) and in the preceding paragraph outstanding as of any date shall be the outstanding balance at such date of all unconditional obligations as described above and, with respect to contingent obligations, the maximum liability upon the occurrence of the contingency giving rise to the obligation, and shall be:

 

  (1) the accreted value of the Indebtedness, in the case of any Indebtedness issued with original issue discount, and

 

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  (2) the principal amount thereof, together with any interest thereon that is more than 30 days past due, in the case of any other Indebtedness;

provided , however , that if any Indebtedness denominated in a currency other than Canadian dollars is hedged or swapped through the maturity of such Indebtedness under a Currency Exchange Protection Agreement, the amount of such Indebtedness shall be adjusted to the extent of any positive or negative value (to the extent the Obligation under such Currency Exchange Protection Agreement is not otherwise included as Indebtedness of such Person) of such Currency Exchange Protection Agreement.

Indenture ” means this instrument, as originally executed or as it may from time to time be supplemented or amended in accordance with Article 9 hereof.

Indirect Participant ” means a Person who holds a beneficial interest in a Global Note through a Participant.

Initial Notes ” means $375.0 million aggregate principal amount of Notes issued under this Indenture on the date hereof.

Institutional Accredited Investor ” means an institution that is an “accredited investor” as defined in Rule 501(a)(1), (2), (3) or (7) under the 1933 Act.

“Interest Payment Dates” shall have the meaning set forth in paragraph 1 of each Note.

Interest Rate Agreement ” means, for any Person, any interest rate swap agreement, interest rate cap agreement, interest rate collar agreement or other similar agreement or arrangement designed to protect against fluctuations in interest rates entered into with any commercial bank or other financial institution having capital and surplus in excess of US$500.0 million.

Investment Grade Status ” means a rating of the Notes from any two of Moody’s, S&P and DBRS equal to or higher than “Baa3” (or the equivalent) in the case of Moody’s, “BBB-” (or the equivalent) in the case of S&P, and “BBB (low)” (or the equivalent) in the case of DBRS, or, in the event that two or more of the foregoing rating agencies cease to issue ratings in respect of the Notes for reasons outside the control of the Company, the equivalent of such ratings by any other Approved Credit Rating Organizations selected by the Company or Quebecor Inc. to replace one or more of Moody’s, S&P and/or DBRS, as the case may be.

Investments ” means, with respect to any Person, all direct or indirect investments by such Person in other Persons (including Affiliates) in the forms of loans or other extensions of credit (including guarantees, but excluding advances to customers or suppliers in the ordinary course of business that are, in conformity with GAAP, recorded as accounts receivable, prepaid expenses or deposits on the balance sheet of the Company or its Restricted Subsidiaries and endorsements for collection or deposit arising in the ordinary course of business), advances (excluding commission, travel and similar advances to officers and employees made consistent with past practices), capital contributions (by means of any transfer of cash or other property to others or any payment for property or services for the account or use of others), purchases or other acquisitions for consideration of Indebtedness, Equity Interests or other securities, together with all items that are or would be classified as investments on a balance sheet prepared in accordance with GAAP and include the designation of a Restricted Subsidiary as an Unrestricted Subsidiary. If the Company or any Restricted Subsidiary sells or otherwise disposes of any Equity Interests of any direct or indirect Restricted Subsidiary such that, after giving effect to any such sale or disposition, such Person is no longer a Restricted Subsidiary of the Company, the Company shall be deemed to have made an Investment on the date of any such sale or disposition equal to the fair market value of the Investment in such Restricted Subsidiary not sold or disposed of in an amount determined as provided in Section 4.10(c) hereof. The acquisition by the Company or any Restricted Subsidiary of a Person that holds an Investment in a third Person shall be deemed to be an Investment by the Company or such Restricted Subsidiary in such third Person in an amount equal to the fair market value of the Investment held by the acquired Person in such third Person in an amount determined as provided in Section 4.10(c) hereof.

 

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Issue Date ” means September 15, 2015, the date of the initial issuance of the Notes under this Indenture.

Legal Holiday ” means a Saturday, a Sunday or a day on which banking institutions in Montréal and in the city in which the Corporate Trust Office of the Trustee is located or any other place of payment on the Notes are authorized by law, regulation or executive order to remain closed.

Lien ” means, with respect to any asset, any mortgage, lien, pledge, charge, security interest, hypothecation, assignment for security or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise perfected or duly published under applicable law, including any conditional sale or capital lease or other title retention agreement, any lease in the nature thereof, any option or other agreement to sell or give a security interest in and any filing of, or agreement to give, any hypothec or any financing statement under the Uniform Commercial Code (or equivalent statutes) of any jurisdiction. Solely for the purposes of determining whether a Lien exists for the purposes of this Indenture, a Person shall be deemed to be the owner of any property which it has acquired or holds subject to a conditional sale or capital lease or other title retention agreement and any lease in the nature thereof (excluding, for the avoidance of doubt, operating leases) and such retention of title by another Person shall constitute a Lien. Notwithstanding the foregoing, any lease that would have been an operating lease (as determined in accordance with GAAP in effect on December 31, 2012) shall be deemed to not constitute a Lien.

Management Fees ” means any amounts payable by the Company or any Restricted Subsidiary in respect of management or similar services.

Moody’s ” means, collectively, Moody’s Investors Service, Inc. and/or its licensors and affiliates or any successor to the rating agency business thereof.

Net Income ” means, with respect to any specified Person, the net income (loss) of such Person, determined in accordance with GAAP and before any reduction in respect of Preferred Shares dividends, excluding, however:

 

  (1) any gain (or loss), together with any related provision for taxes on such gain (or loss), realized in connection with: (a) any Asset Sale (without regard to the US$25.0 million limitation set forth in the definition thereof) or (b) the disposition of any securities by such Person or any of its Restricted Subsidiaries or the extinguishment of any Indebtedness of such Person or any of its Restricted Subsidiaries; and

 

  (2) any extraordinary gain (or loss), together with any related provision for taxes on such extraordinary gain (or loss).

Net Proceeds ” means the aggregate cash proceeds received by the Company or any Restricted Subsidiary in respect of any Asset Sale (including, without limitation, any cash received upon the sale or other disposition of any non-cash consideration received in any Asset Sale), net of (a) the direct costs relating to such Asset Sale, including, without limitation, legal, accounting and investment banking fees, and sales commissions, (b) any relocation expenses Incurred as a result of the Asset Sale, (c) taxes paid or payable as a result of the Asset Sale, in each case, after taking into account any available tax credits or deductions and any tax sharing arrangements, (d) amounts required to be applied to the repayment of Indebtedness or other liabilities, secured by a Lien on the asset or assets that were the subject of such Asset Sale, or required to be paid as a result of such sale, (e) any reserve for adjustment in respect of the sale price of such asset or assets established in accordance with GAAP, and (f) all distributions and other payments required to be made to minority interest holders in Subsidiaries or joint ventures of the Company or such Restricted Subsidiary as a result of such Asset Sale.

Non-Recourse Accounts Receivable Entity Indebtedness ” has the meaning ascribed thereto in the definition of “Accounts Receivable Entity”.

 

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Non-Recourse Debt ” means Indebtedness:

 

  (1) as to which neither the Company nor any Restricted Subsidiary (a) provides credit support of any kind (including any undertaking, agreement or instrument that would constitute Indebtedness), (b) is directly or indirectly liable as a guarantor or otherwise or (c) constitutes the lender;

 

  (2) no default with respect to which (including any rights that the holders thereof may have to take enforcement action against an Unrestricted Subsidiary) would permit, upon notice, lapse of time or both, any holder of any other Indebtedness (other than the Notes ) of the Company or any Restricted Subsidiary to declare a default on such other Indebtedness or cause the payment thereof to be accelerated or payable prior to its Stated Maturity; and

 

  (3) as to which the lenders have been notified in writing that they will not have any recourse to the stock or assets of the Company or any Restricted Subsidiary.

Notes ” means the Company’s 5.75% Senior Notes due January 15, 2026 issued under this Indenture, including any Additional Notes, if any.

Obligations ” means any principal, interest, penalties, fees, indemnifications, reimbursements, damages and other liabilities payable under the documentation governing any Indebtedness.

Officer ” means the Chairman of the Board, the Chief Executive Officer, the President, the Chief Operating Officer, the Chief Financial Officer, the Treasurer, any Assistant Treasurer, the Controller, the Secretary or any Vice President of the Company.

Officers’ Certificate ” means a certificate signed by two Officers of the Company, at least one of whom shall be the principal executive officer, principal financial officer or the principal accounting officer of the Company, and delivered to the Trustee.

Opinion of Counsel ” means a written opinion from legal counsel who is reasonably acceptable to the Trustee. The counsel may be an employee of or counsel to the Company, an Affiliate of the Company or the Trustee.

Participant ” means a participant in the depositary service of CDS.

Permitted Business ” means the businesses conducted by the Company and its Restricted Subsidiaries in the cable and telecommunications industry, including on-line Internet services, telephony and the sale and rental of videocassettes, or anything related or ancillary thereto.

Permitted Holders ” means one or more of the following persons or entities:

 

  (1) Quebecor Inc.;

 

  (2) Quebecor Media;

 

  (3) any issue of the late Pierre Péladeau;

 

  (4) any trust having as its sole beneficiaries one or more of the persons or entities listed in clause (3) above, in this clause (4) or in clause (5) below;

 

  (5) any corporation, partnership or other entity controlled by one or more of the persons or entities referred to in clause (3) or (4) above or in this clause (5); and

 

  (6) CDP Capital d’Amérique Investissements Inc.

 

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Permitted Investments ” means:

 

  (1) any Investment in the Company or in a Restricted Subsidiary;

 

  (2) any Investment in cash or Cash Equivalents;

 

  (3) any Investment by the Company or any Restricted Subsidiary in a Person, if as a result of such Investment:

 

  (i) such Person becomes a Restricted Subsidiary; or

 

  (ii) such Person is merged, consolidated or amalgamated with or into, or transfers or conveys substantially all of its assets to, or is liquidated into, the Company or any Restricted Subsidiary; or

 

  (iii) such Person, which was formed for the sole purpose of acquiring assets of a Permitted Business, is upon acquisition of such assets obligated to convey or otherwise distribute assets to the Company or any of its Restricted Subsidiaries having a Fair Market Value at least equal to the Investment of the Company or such Restricted Subsidiary in such Person (net of transaction expenses);

provided that , in each case, such Person’s primary business is, or the assets acquired by the Company or any of its Restricted Subsidiaries are used or useful in, a Permitted Business;

 

  (4) any Investment made as a result of the receipt of non-cash consideration from an Asset Sale that was made pursuant to and in compliance with the provisions of Section 4.12 hereof;

 

  (5) any acquisition of assets solely in exchange for the issuance of Equity Interests (other than Disqualified Stock or Back-to-Back Securities) of the Company;

 

  (6) Hedging Obligations entered into in the ordinary course of business of the Company or any Restricted Subsidiary and not for speculative purposes, and that do not increase the Indebtedness of the obligor outstanding at any time other than as a result of fluctuations in interest rates or foreign currency exchange rates, commodity prices, or by reason of fees, indemnities and compensation payable thereunder;

 

  (7) payroll, travel and similar advances to officers, directors and employees of the Company and the Restricted Subsidiaries for business-related travel expenses, moving expenses and other similar expenses that are expected at the time of such advances ultimately to be treated as expenses in accordance with GAAP;

 

  (8) any Investment by the Company or any Restricted Subsidiary of the Company in an Accounts Receivable Entity or any Investment by an Accounts Receivable Entity in any other Person in connection with a Qualified Receivables Transaction, so long as any Investment in an Accounts Receivable Entity is in the form of a Purchase Money Note or an Equity Interest;

 

  (9) any Investment in connection with Back-to-Back Transactions;

 

  (10) any Investment existing on October 8, 2003; and

 

  (11) other Investments in any Person that is not an Affiliate of the Company (other than a Restricted Subsidiary) having an aggregate fair market value (measured on the date each such Investment was made and without giving effect to subsequent changes in value), when taken together with all other Investments made pursuant to this clause (11) since October 8, 2003 not to exceed US$200.0 million.

 

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Permitted Liens ” means:

 

  (1) Liens on the assets of the Company and any Restricted Subsidiaries securing Indebtedness and other Obligations of the Company and Restricted Subsidiaries under Credit Facilities, which Indebtedness was permitted by the terms of this Indenture to be Incurred, provided , however , that at the time of Incurrence and after giving effect to the Incurrence of such Indebtedness and the application of the proceeds therefrom on such date, the aggregate principal amount of Indebtedness secured by such Liens does not exceed the greater of (i) Cdn$1.5 billion and (ii) an aggregate amount equal to 2.0 times the Consolidated Cash Flow of the Company for the most recently ended fiscal quarter ending immediately prior to such date of calculation for which internal financial statements are available multiplied by four (such amount to be calculated in a manner consistent with the definition of “Debt to Cash Flow Ratio,” including any pro forma adjustments to Consolidated Cash Flow as set forth in such definition);

 

  (2) Liens in favor of the Company or a Restricted Subsidiary;

 

  (3) Liens on property of a Person existing at the time such Person is merged with or into or consolidated or amalgamated with the Company or any Restricted Subsidiary, provided that such Liens were in existence prior to the contemplation of such merger, consolidation or amalgamation and do not extend to any assets other than those of the Person merged into or consolidated or amalgamated with the Company or the Restricted Subsidiary;

 

  (4) Liens on property existing at the time of acquisition thereof by the Company or any Restricted Subsidiary, provided that such Liens were in existence prior to the contemplation of such acquisition and do not extend to any assets other than such property;

 

  (5) Liens to secure the performance of statutory obligations, surety or appeal bonds, performance bonds or other obligations of a like nature Incurred in the ordinary course of business;

 

  (6) Liens to secure Indebtedness (including Capital Lease Obligations) permitted by Section 4.09(2)(iv) hereof covering only the assets acquired with such Indebtedness;

 

  (7) Liens existing on October 8, 2003;

 

  (8) Liens for taxes, assessments or governmental charges or claims that are not yet delinquent or that are being contested in good faith by appropriate proceedings promptly instituted and diligently concluded, provided that any reserve or other appropriate provision as shall be required in conformity with GAAP shall have been made therefor;

 

  (9) Liens securing Permitted Refinancing Indebtedness, provided that any such Lien does not extend to or cover any property, Capital Stock or Indebtedness other than the property, shares or debt securing the Indebtedness so refunded, refinanced or extended;

 

  (10) attachment or judgment Liens not giving rise to a Default or an Event of Default;

 

  (11) Liens Incurred or deposits made in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other types of social security;

 

  (12) Liens Incurred or deposits made to secure the performance of tenders, bids, leases, statutory or regulatory obligations, bankers’ acceptance, surety and appeal bonds, government contracts, performance and return-of-money bonds and other obligations of a similar nature Incurred in the ordinary course of business, exclusive of Obligations for the payment of borrowed money;

 

  (13)

licenses, permits, reservations, servitudes, easements, rights-of-way and rights in the nature of easements (including, without limiting the generality of the foregoing, licenses, easements, rights-

 

19


  of-way and rights in the nature of easements for railways, sidewalks, public ways, sewers, drains, gas or oil pipelines, steam, gas and water mains or electric light and power, or telephone and telegraph or cable television conduits, poles, wires and cables, reservations, limitations, provisos and conditions expressed in any original grant from any governmental entity or other grant of real or immovable property, or any interest therein) and zoning land use and building restrictions, by-laws, regulations and ordinances of federal, provincial, regional, state, municipal and other governmental authorities in respect of real (immovable) property not interfering, individually or in the aggregate, in any material respect with the use of the affected real (immovable) property for the ordinary conduct of the business of the Company or any of its Restricted Subsidiaries at such real (immovable) property;

 

  (14) Liens of franchisors or other regulatory bodies arising in the ordinary course of business;

 

  (15) Liens securing reimbursement obligations with respect to letters of credit that encumber documents and other property relating to such letters of credit and the products and proceeds thereof;

 

  (16) Liens encumbering customary initial deposits and margin deposits, and other Liens that are within the general parameters customary in the industry and Incurred in the ordinary course of business, in each case, securing Indebtedness under Hedging Obligations and forward contracts, options, future contracts, future options or similar agreements or arrangements, including mark-to-market transactions designed solely to protect the Company or any Restricted Subsidiary from fluctuations in interest rates, currencies or the price of commodities;

 

  (17) Liens consisting of any interest or title of licensor in the property subject to a license;

 

  (18) Liens arising from sales or other transfers of accounts receivable which are past due or otherwise doubtful of collection in the ordinary course of business;

 

  (19) Liens on accounts receivable and related assets Incurred in connection with a Qualified Receivables Transaction;

 

  (20) any extensions, substitutions, replacements or renewals of the foregoing clauses (2) through (19); and

 

  (21) Liens Incurred in the ordinary course of business of the Company or any Restricted Subsidiary with respect to Obligations that do not exceed US$100.0 million at any one time outstanding.

Permitted Refinancing Indebtedness ” means any Indebtedness of the Company or any Restricted Subsidiary issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease or refund other Indebtedness of the Company or any Subsidiary Guarantor (other than intercompany Indebtedness); provided, however, that:

 

  (1) the principal amount (or accreted value, if applicable) of such Permitted Refinancing Indebtedness does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness so extended, refinanced, renewed, replaced, defeased or refunded (plus all accrued interest thereon and the amount of any reasonably determined premium necessary to accomplish such refinancing and such reasonable expenses Incurred in connection therewith);

 

  (2) such Permitted Refinancing Indebtedness has a final maturity date later than the final maturity date of, and has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded;

 

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  (3) if the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded is subordinated in right of payment to the Notes or the Subsidiary Guarantees, such Permitted Refinancing Indebtedness is subordinated in right of payment to, the Notes on terms at least as favorable to the Holders of Notes as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded;

 

  (4) if the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded is pari passu in right of payment with the Notes or any Subsidiary Guarantees, such Permitted Refinancing Indebtedness is pari passu with, or subordinated in right of payment to, the Notes or such Subsidiary Guarantees; and

 

  (5) such Indebtedness is Incurred either by the Company, a Subsidiary Guarantor or by the Restricted Subsidiary who is the obligor on the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded.

Person ” means any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization, limited liability company or government or other entity.

Predecessor Note ” of any particular Note means every previous Note evidencing all or a portion of the same Indebtedness as that evidenced by such particular Note; and any Note authenticated and delivered under Section 2.07 in lieu of a lost, destroyed or stolen Note shall be deemed to evidence the same Indebtedness as the lost, destroyed or stolen Note.

Preferred Shares ” means any Capital Stock of a Person, however designated, which entitles the holder thereof to a preference with respect to the payment of dividends, or as to the distribution of assets upon any voluntary or involuntary liquidation or dissolution of such Person, over shares of any other class of Capital Stock issued by such Person.

Private Placement Legend ” means the legends, including the 144A Legend and the Canadian Placement Legend, set forth in Section 2.06(f)(i) hereof to be placed on all Notes issued under this Indenture except as otherwise permitted by the provisions of this Indenture.

Purchase Money Note ” means a promissory note of an Accounts Receivable Entity to the Company or any of its Restricted Subsidiaries, which note must be repaid from cash available to the Accounts Receivable Entity, other than amounts required to be established as reserves pursuant to agreements, amounts paid to investors in respect of interest, principal and other amounts owing to such investors and amounts paid in connection with the purchase of newly generated receivables.

QIB ” or “qualified institutional buyer” means a qualified institutional buyer within the meaning of Rule 144A.

“QMI Subordinated Loan” means the Indebtedness owed by the Company to Quebecor Media pursuant to the Subordinated Loan Agreement dated March 24, 2003 between the Company and Quebecor Media, as amended.

Qualified Receivables Transaction ” means any transaction or series of transactions entered into by the Company or any of its Restricted Subsidiaries pursuant to which the Company or such Restricted Subsidiary transfers to an Accounts Receivable Entity (in the case of a transfer by the Company or any of its Restricted Subsidiaries) or any other Person other than the Company or any of its Subsidiaries, or grants a security interest in, any accounts receivable (whether now existing or arising in the future) of the Company or any of its Restricted Subsidiaries, and any assets related thereto, including, without limitation, all collateral securing such accounts receivable, all contracts and all guarantees or other obligations in respect of such accounts receivable, proceeds of such accounts receivable and other assets which are customarily transferred or in respect of which security interests are customarily granted in connection with an accounts receivable financing transaction; provided such transaction is on market terms at the time the Company or such Restricted Subsidiary enters into such transaction.

 

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Quebecor Media ” means Quebecor Media Inc., the parent of the Company.

Rating Agency ” means (1) each of Moody’s, S&P and DBRS; or (2) in the event that two or more of the foregoing rating agencies cease to issue ratings in respect of the Notes, as applicable, for reasons outside the control of the Company, any other Approved Credit Rating Organization selected by the Company to replace Moody’s, S&P and/or DBRS.

Ratings Decline Period ” means the period that (1) begins on the earlier of (a) the date of the first public announcement of the occurrence of a Change of Control and (b) the occurrence of a Change of Control and (2) ends 90 days following consummation of such Change of Control; provided, that such period shall be extended for so long as the rating of the Notes, as noted by the applicable Rating Agency, is under publicly announced consideration for downgrade by the applicable Rating Agency.

Ratings Event ” means (1) a downgrade by one or more gradations (including gradations within ratings categories as well as between rating categories) or withdrawal of the rating of the Notes, as applicable, within the Ratings Decline Period by one or more Rating Agencies (unless the applicable Rating Agency shall have put forth a written statement to the effect that such downgrade is not attributable in whole or in part to the applicable Change of Control) and (2) the Notes, as applicable, do not have Investment Grade Status from any Rating Agency.

Regular Record Date ” for the interest payable on any Interest Payment Date means the applicable date specified as a “Record Date” on the face of the Note.

Regulation S ” means Regulation S promulgated under the 1933 Act.

Related Party ” means:

 

  (1) any controlling shareholder, 80% (or more) owned Subsidiary, or immediate family member (in the case of an individual) of any Permitted Holder, or

 

  (2) any trust, corporation, partnership or other entity, the beneficiaries, shareholders, partners, owners or Persons beneficially holding an 80% or more controlling interest of which consist of any one or more Permitted Holder and/or such other Persons referred to in the immediately preceding clause (1).

Responsible Officer ” when used with respect to the Trustee, means any officer within the Corporate Trust Department of the Trustee (or any successor group of the Trustee) with direct responsibility for the administration of this Indenture and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his or her knowledge of and familiarity with the particular subject.

Restricted Definitive Notes ” means one or more Definitive Notes bearing the Private Placement Legend.

Restricted Global Notes ” means the Canadian Placement Global Notes and the 144A Global Notes.

Restricted Investment ” means an Investment other than a Permitted Investment.

Restricted Payment ” means:

 

  (1)

the declaration or payment of any dividend or the making of any other payment or distribution on account of the Company’s or any Restricted Subsidiary’s Equity Interests, including, without limitation, any payment in connection with any merger or consolidation involving the Company or any Restricted Subsidiary, or to the direct or indirect holders of the Company’s or any Restricted Subsidiary’s Equity Interests in their capacity as such, other than dividends, payments or distributions payable in Equity Interests (other than Disqualified Stock or Back-to-Back Securities) of the Company or to the Company or a Restricted Subsidiary (and, if such Restricted Subsidiary is not a Wholly Owned Restricted Subsidiary, to the other shareholders of such

 

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  Restricted Subsidiary on a pro rata basis or on a basis that results in the receipt by the Company or a Restricted Subsidiary of dividends or distributions of greater value than it would receive on a pro rata basis);

 

  (2) the purchase, redemption or other acquisition or retirement for value, including, without limitation, in connection with any merger or consolidation involving the Company, of any Equity Interests of the Company, other than such Equity Interests of the Company held by the Company or any of its Restricted Subsidiaries;

 

  (3) the making of any payment on or with respect to, or the purchase, redemption, defeasance or other acquisition or retirement for value of any Back-to-Back Securities or Indebtedness that is subordinated to the Notes or the Subsidiary Guarantees, except, in the case of Indebtedness that is subordinated to the Notes or Subsidiary Guarantees (other than Back-to-Back Securities and the QMI Subordinated Loan), a payment of interest at or within one year of the Stated Maturity of such interest or principal at or within one year of the Stated Maturity of principal of such Indebtedness; provided that any accretion or payment-in-kind of interest on the QMI Subordinated Loan, to the extent such accretion or payment is not made in cash, will not be a Restricted Payment;

 

  (4) any Restricted Investment; or

 

  (5) the payment of any amount of Management Fees (including Deferred Management Fees) to a Person other than the Company or a Restricted Subsidiary.

Restricted Subsidiary ” means any Subsidiary of the Company that is not an Unrestricted Subsidiary.

Rule 144 ” means Rule 144 promulgated under the 1933 Act.

Rule 144A ” means Rule 144A promulgated under the 1933 Act.

Rule 903 ” means Rule 903 promulgated under the 1933 Act.

Rule 904 ” means Rule 904 promulgated under the 1933 Act.

S&P ” means, collectively, Standard & Poor’s Financial Services LLC and Standard & Poor’s Ratings Services, a division of the McGraw-Hill Companies, Inc., or any successor to the rating agency business thereof.

“sale and leaseback transaction” means, with respect to any Person, any transaction involving any of the assets or properties of such Person whether now owned or hereafter acquired, whereby such Person sells or transfers such assets or properties and then or thereafter leases such assets or properties or any part thereof or any other assets or properties which such Person intends to use for substantially the same purpose or purposes as the assets or properties sold or transferred.

Significant Subsidiary ” means any Subsidiary that would be a “significant subsidiary” as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the 1933 Act, as such Regulation was in effect on October 8, 2003.

Standard Securitization Undertakings ” means representations, warranties, covenants and indemnities entered into by the Company or any of its Restricted Subsidiaries, which are customary in an accounts receivable securitization transaction.

Stated Maturity ” means, with respect to any installment of interest or principal on any series of Indebtedness, the date on which such payment of interest or principal was scheduled to be paid in the original documentation governing such Indebtedness, and shall not include any contingent obligations to repay, redeem or repurchase any such interest or principal prior to the date originally scheduled for the payment thereof.

 

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Subordinated Indebtedness ” means any Indebtedness of the Company or any Subsidiary Guarantor (whether outstanding on October 8, 2003 or thereafter Incurred) that is subordinate or junior in right of payment to the Notes or any Subsidiary Guarantee pursuant to a written agreement to that effect.

Subsidiary ” means, with respect to any specified Person:

 

  (1) any corporation, association or other business entity of which more than 50% of the total voting power of shares of Capital Stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of that Person (or a combination thereof); and

 

  (2) any partnership (a) the sole general partner or the managing general partner of which is such Person or a Subsidiary of such Person or (b) the only general partners of which are such Person or one or more Subsidiaries of such Person (or any combination thereof).

Subsidiary Guarantee ” means a guarantee on the terms set forth in this Indenture by a Subsidiary Guarantor of the Company’s obligations with respect to the Notes.

Subsidiary Guarantor ” means (1) each Restricted Subsidiary on the Issue Date other than SETTE inc. and (2) any other Person that becomes a Subsidiary Guarantor pursuant to the provisions of Section 4.19 hereof or who otherwise executes and delivers a supplemental indenture to the Trustee providing for a Subsidiary Guarantee, and in each case their respective successors and assigns until released from their obligations under their Subsidiary Guarantees and this Indenture in accordance with the terms hereof.

Tax ” means any tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and any other liabilities related thereto).

Tax Benefit Transaction ” means, for so long as the Company is a direct or indirect Subsidiary of Quebecor Inc., any transaction between a Videotron Entity and Quebecor Inc. or any of its Affiliates, the primary purpose of which is to create tax benefits for any Videotron Entity or for Quebecor Inc. or any of its Affiliates; provided, however, that (1) the Videotron Entity involved in the transaction obtains a favorable tax ruling from a competent tax authority or a favorable tax opinion from a nationally recognized Canadian law or accounting firm having a tax practice of national standing as to the tax efficiency of the transaction for such Videotron Entity (except that such ruling or opinion shall not be required in respect of a transaction with substantially similar tax and transactional attributes as a previous Tax Benefit Transaction in respect of which such a tax ruling or opinion was obtained); (2) in respect of any such Tax Benefit Transaction in an amount exceeding Cdn$50.0 million, such transaction has been approved by a majority of the disinterested members of such Board of Directors; (3) such transaction is set forth in writing; and (4) the Consolidated Cash Flow of the Company is not reduced after giving pro forma effect to the transaction as if the same had occurred at the beginning of the most recently ended full fiscal quarter of the Company for which internal financial statements are available; provided, however , that if such transaction shall thereafter cease to satisfy the preceding requirements as a Tax Benefit Transaction, it shall thereafter cease to be a Tax Benefit Transaction for purposes of this Indenture and shall be deemed to have been effected as of such date and, if the transaction is not otherwise permitted by this Indenture as of such date, the Company shall be in default under this Indenture if such transaction does not comply with the preceding requirements or is not otherwise unwound within 30 days of that date.

Trustee ” means the Person named as the “Trustee” in the first paragraph of this Indenture until a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean such successor Trustee.

Unrestricted Definitive Notes ” means one or more Definitive Notes that do not and are not required to bear the 144A Legend.

 

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Unrestricted Global Notes ” means one or more Global Notes that do not and are not required to bear the 144A Legend and are deposited with and registered in the name of the Depositary or its nominee.

Unrestricted Subsidiary ” means:

 

  (1) any Subsidiary of the Company that is designated after the Issue Date as an Unrestricted Subsidiary as permitted or required pursuant to the provisions of Section 4.17 hereof and is not thereafter redesignated as a Restricted Subsidiary as permitted pursuant thereto; and

 

  (2) any Subsidiary of an Unrestricted Subsidiary.

Videotron Entity ” means any of the Company or any of its Restricted Subsidiaries.

Voting Stock ” of any Person as of any date means the Capital Stock of such Person that is at the time entitled to vote in the election of the Board of Directors of such Person.

Weighted Average Life to Maturity ” means, when applied to any Indebtedness at any date, the number of years obtained by dividing:

 

  (1) the sum of the products obtained by multiplying (a) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect thereof, by (b) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment; by

 

  (2) the then outstanding principal amount of such Indebtedness.

Wholly Owned Restricted Subsidiary ” of any specified Person means a Restricted Subsidiary of such Person all of the outstanding Capital Stock or other ownership interests of which (other than directors’ qualifying shares) will at the time be owned by such Person or by one or more Wholly Owned Restricted Subsidiaries of such Person.

Section   1.02.      Other Definitions .

 

Term

   Defined in
Section

“Acceleration Notice”

   6.02

“Additional Amounts”

   4.20(1)(iii)

“Affiliate Transaction”

   4.14(a)

“Asset Sale Offer”

   4.12(d)

“Authentication Order”

   2.02(d)

“Base Currency”

   12.10(1)(i)

“Benefited Party”

   10.01

“Change of Control Offer”

   4.18(1)

“Change of Control Amount”

   4.18(1)

“Covenant Defeasance”

   8.03

“Event of Default”

   6.01

“Excess Proceeds”

   4.12

“Excluded Holder”

   4.20(2)

“First Currency”

   12.11

“indenture legislation”

   12.15

“judgment currency”

   12.10(1)(i)

“Legal Defeasance”

   8.02

“losses”

   7.06

“Offer Amount”

   3.09(2)(ii)

“Offer Period”

   3.09(3)

“Offer to Purchase”

   3.09(1)

“Participants List”

   2.01(d)

“Paying Agent”

   2.03(a)

“Payment Default”

   6.01(vi)(A)

“Permitted Debt”

   4.09(2)

“Privacy Laws”

   12.12

“Proxy Material”

   13.07(2)

“Purchase Date”

   3.09(3)

“rate(s) of exchange”

   12.10(4)

“Registrar”

   2.03(a)

“Required Number”

   13.07(2)

“Security Register”

   2.03(a)

“Surviving Company”

   5.01(1)(i)

“Surviving Guarantor”

   5.01(2)(i)

 

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Section   1.03.      Rules of Construction .

Unless the context otherwise requires:

 

  (i) a term has the meaning assigned to it;

 

  (ii) an accounting term not otherwise defined herein has the meaning assigned to it in accordance with GAAP;

 

  (iii) “or” is not exclusive;

 

  (iv) words in the singular include the plural, and in the plural include the singular;

 

  (v) all references in this instrument to “Articles,” “Sections” and other subdivisions are to the designated Articles, Sections and subdivisions of this instrument as originally executed;

 

  (vi) the words “herein,” “hereof” and “hereunder” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision.

 

  (vii) “including” means “including without limitation;”

 

  (viii) provisions apply to successive events and transactions;

 

  (ix) references to any laws, acts, rules or regulations thereunder shall be deemed to include any substitute, replacement or successor laws, acts, rules or regulations; and

 

  (x) references to $ and to Cdn.$ are to Canadian dollars and references to US$ are to United States dollars.

Section 1.04.     Form of Documents Delivered to Trustee

In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.

Any certificate or opinion of an officer of the Company may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which his certificate or opinion is based are erroneous. Any such certificate or opinion of counsel may be based,

 

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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 1.05.     Acts of Holders of Notes

(a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders of Notes may be embodied in and evidenced by (i) one or more instruments of substantially similar tenor signed by such Holders in person or by agents duly appointed in writing or (ii) a resolution duly adopted by the Holders of Notes at a meeting thereof duly called and held in accordance with the provisions of Article 13. Except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments or resolution are delivered to the Trustee and, where it is hereby expressly required, to the Company. 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 7.01) conclusive in favour of the Trustee and the Company if made in the manner provided in this Section. Proof of the due adoption of any such resolution by the appropriate percentage of Holders of Notes at a meeting thereof shall be sufficient for any purpose of this Indenture if such resolution forms part of and its due adoption by such appropriate percentage is evident from the record of such meeting prepared, signed and verified in the manner provided in Section 13.6.

(b) The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by the certificate of any notary or other officer authorized by law to take acknowledgements of deeds, certifying that the individual signing such instrument or writing acknowledged to him the execution thereof. Where such execution is by an officer of a corporation or a member of a partnership, on behalf of such corporation or partnership, such certificate or affidavit shall also constitute sufficient proof of his authority to so execute.

(c) The holding of Notes shall be proved by the Security Register.

(d) Any request, demand, authorization, direction, notice, consent, waiver or other action by the Holder of any Note shall bind every future Holder of the same Note and the Holder of every Note issued upon the transfer thereof or in exchange therefor or in lieu thereof, in respect of anything done or suffered to be done by the Trustee or the Company in reliance thereon, whether or not notation of such action is made upon such Note.

Section 1.06.     Benefits of Indenture

Nothing in this Indenture or in the Notes, express or implied, shall, except as may be required by any applicable law, give to any Person, other than the parties hereto and their successors hereunder and the Holders of Notes, any benefit or any legal or equitable right, remedy or claim under this Indenture. In the case of Notes registered in Book-Entry Only Form, any reference in this Indenture to a “Holder” of a Note shall be construed as a reference to the Depositary.

Section   1.07.      Trust Provisions

Notwithstanding the references herein or in any Note to this Indenture as a “Trust Indenture” or to the Computershare Trust Company of Canada (or its successor hereunder, if any) as a “Trustee” or to it acting as Trustee, and except for any trust which may be created or constituted in Québec for the purposes of Sections 2.04, 6.10, 8.04, 8.05, 8.06, 11.01, 11.02 and 11.03 of this Indenture (and only to the extent contemplated by such Sections), no trust within the meaning of Chapter II of Title Six of Book Four of the Civil Code is intended to be or is created or constituted hereby. In addition, for greater certainty and subject as hereinafter in this Section provided in the case of any trust created or constituted in Québec for the purposes of Sections 2.04, 6.10, 8.04, 8.05, 8.06, 11.01, 11.02 and 11.03 of this Indenture, the provisions of Title Seven of Book Four of the Civil Code shall not apply to any administration by the Trustee hereunder.

 

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Except as otherwise expressly provided or unless the context otherwise requires, references in this Indenture to “trust” or “in trust”, and other similar wording shall only refer to any trust that shall be created or constituted for the purposes of Sections 2.04, 6.10, 8.04, 8.05, 8.06, 11.01, 11.02 and 11.03 of this Indenture, as the case may be, which trust shall be created or constituted either under Québec law or under the law of any other appropriate jurisdiction and, if so created or constituted in another appropriate jurisdiction, shall be subject to the trust laws of such jurisdiction. Any such trust shall be automatically created by the mere fact of the transfer to or taking of possession by the Trustee of the property subject to and for the purposes of such trust and such provisions of the Civil Code shall automatically apply thereto unless such transfer and taking of possession occurs outside of Québec and it has previously been, or it is then, expressly agreed between the Company and the Trustee (acting in its sole discretion) that the trust laws in the jurisdiction where such transfer or taking of possession occurs shall apply or the laws of such jurisdiction make it mandatory that its trust laws apply to any trust created hereunder as a result of such transfer or taking of possession.

Section 1.08.     Accounting Changes

For the purposes of this Indenture, any failure to comply with any covenant or agreement under this Indenture (other than the provisions of Section 4.09(1) and Section 4.10 hereof) that results solely from a change in GAAP, shall, to the extent that the underlying transactions, items or Incurrences (including, without limitation, Liens and items of Indebtedness) (or portions thereof) cannot be reclassified in a manner that results in compliance with the relevant covenant or agreement, be permitted and shall, solely to the extent of the non-compliance, be deemed not to be a failure to comply with such covenant or agreement.

ARTICLE 2.

THE NOTES

Section   2.01.      Form and Dating .

(a) General . The Notes and the Trustee’s certificate of authentication shall be substantially in the form included in Exhibit A hereto, which is hereby incorporated in and expressly made part of this Indenture. The Notes may have notations, legends or endorsements required by law, exchange rule or usage in addition to those set forth on Exhibit A. Each Note shall be dated the date of its authentication. The Notes shall be in denominations of $1,000 and integral multiples of $1,000 in excess thereof. The terms and provisions contained in the Notes shall constitute a part of this Indenture, and the Company, the Subsidiary Guarantors and the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby. To the extent any provision of any Note conflicts with the express provisions of this Indenture, the provisions of this Indenture shall govern and be controlling.

(b) Form of Notes . Notes shall be issued initially in Book-Entry Only Form represented by one or more fully registered Global Notes and shall be substantially in the form of Exhibit A attached hereto (including the Global Note Legend thereon and the “Schedule of Exchanges of Interests in the Global Note” attached thereto) held by, or on behalf of, the Depositary (for its Participants) and registered on the Security Register maintained by the Trustee pursuant to Section 2.03 in the name of the Depositary or its nominee, and it is expressly acknowledged that any such registrations of ownership and transfers of such Global Note(s), or interests of Participants therein, will be made by the Depositary only through the Book-Entry System. Notes issued in definitive form shall be substantially in the form of Exhibit A attached hereto (but without the Global Note Legend thereon and without the “Schedule of Exchanges of Interests in the Global Note” attached thereto). Each Global Note shall represent such aggregate principal amount of the outstanding Notes as shall be specified therein and each shall provide that it shall represent the aggregate principal amount of outstanding Notes from time to time endorsed thereon and that the aggregate principal amount of outstanding Notes represented thereby may from time to time be reduced or increased, as appropriate, to reflect exchanges and redemptions and transfers of interests therein. Any endorsement of a Global Note to reflect the amount of any increase or decrease in the aggregate principal amount of outstanding Notes represented thereby shall be made by the Trustee or the Custodian, at the direction of the Trustee, in accordance with instructions given by the Holder thereof as required by Section 2.06 hereof.

 

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(c) Book-Entry Provisions . This Section 2.01(c) shall apply only to Global Notes deposited with the Trustee, as custodian for the Depositary. Participants and Indirect Participants shall have no rights under this Indenture or any Global Note with respect to any Global Note held on their behalf by the Depositary or by the Trustee as custodian for the Depositary, and the Depositary shall be treated by the Company, the Trustee and any agent of the Company or the Trustee as the absolute owner of such Global Note for all purposes whatsoever. Subject to this Section 2.01(c), the rights of Participants and Indirect Participants in any Global Note (including the right to receive a certificate or other instrument evidencing an ownership interest in such Global Note) shall be limited to those established by any agreement (including a Book-Entry Only Securities Services Agreement) between the Company and the Depositary, by applicable law and by any agreements among the Depositary and its Participants and among such Participants and the Indirect Participants, and must be exercised through a Participant in accordance with the Applicable Procedures. Accordingly, except as provided in Section 2.06, neither the Company nor the Trustee shall be under any obligation to deliver, nor shall any Participant or Indirect Participant or any owner of any beneficial interest in any Global Note have any right to require the delivery of, a Definitive Note or other instrument evidencing an interest in respect of such Note, and, for so long as no Definitive Note has been issued, the responsibility and liability of the Company in respect of notices or payments on the Notes will be limited to giving notice or making payment of any principal, redemption price, if any, and interest due on the Notes to the Depositary or its nominee. Any notice required or permitted to be given to Holders while the Notes are represented by Global Notes held by, or on behalf of, the Depositary or its nominee as part of the Book-Entry System, shall be provided to the Depositary. Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee or any agent of the Company or the Trustee from giving effect to any written certification, proxy or other authorization furnished by the Depositary or impair, as between the Depositary and its Participants or Indirect Participants, the Applicable Procedures or the operation of customary practices of the Depositary governing the exercise of the rights of a holder of a beneficial interest in any Global Note.

(d) Dealings with the Depositary. The Company and the Trustee acknowledge that subject to and in accordance with Applicable Procedures, each Participant must look solely to the Depositary through its paying agent service, for so long as the Depositary is the registered holder of Global Notes, for its share of each payment made by the Trustee or the Company, as the case may be, to the registered holder of the Global Notes, and each Indirect Participant must look solely to Participants for its share of such payments. Provided that the Company (or the Paying Agent, as applicable) has made payments to the Depositary in respect of the Global Notes as required by this Indenture and except as otherwise provided in Sections 8.06 or 11.03 of this Indenture, no person, including any Participant, shall have any claim against the Company in respect of payments due on such Global Notes and the obligations of the Company shall be discharged by payment to the Depositary, in respect of each amount so paid.

The Company and the Trustee understand that, if so requested by the Trustee or the Company, the Depositary will, within three Business Days of such request, deliver to such requesting party a certified list of Participants (the “ Participants List ”) as at the date requested by such party showing the name and address of each Participant together with the aggregate principal amount of such Participant’s interest in the Notes and that for so long as interests in the Notes are represented by the Global Notes, the Depositary shall, upon the reasonable request of the Trustee or the Company from time to time, deliver to such requesting party a copy of the then current Participants List and such additional information as the Trustee or Company may reasonably request. The Company and the Trustee shall be entitled to rely upon all such information provided by the Depositary to the Company and the Trustee.

The Company and the Trustee understand that the Depositary acts as the agent and depositary for the Participants and the Company and the Trustee further acknowledge and agree that neither the Company nor the Trustee shall have any liability or responsibility for: (i) any aspect of the records relating to the beneficial ownership of the Notes held by the Depositary or the payments relating to such Notes, (ii) maintaining, supervising or reviewing any records relating to the beneficial ownership of Notes held by the Depositary, or (iii) any advice or representation made by or with respect to the Depositary and contained in this Indenture or any indenture supplemental to this Indenture with respect to the rules and regulations governing the Depositary or any action to be taken by the Depositary or at the direction of the Participants. In the event of any conflict between this Indenture and any such agreement between the Company and the Depositary, the terms of any such agreement shall prevail.

 

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Section   2.02.      Execution and Authentication .

(a) One Officer shall execute the Notes on behalf of the Company by manual or facsimile signature.

(b) If an Officer whose signature is on a Note no longer holds that office at the time a Note is authenticated by the Trustee, the Note shall nevertheless be valid.

(c) A Note shall not be valid until authenticated by the manual signature of the Trustee. The signature shall be conclusive evidence that the Note has been authenticated under this Indenture.

(d) The Trustee shall, upon a written order of the Company signed by an Officer (an “ Authentication Order ”), authenticate Notes for original issue.

(e) The Trustee may appoint an authenticating agent acceptable to the Company to authenticate Notes. Unless otherwise provided in such appointment, an authenticating agent may authenticate Notes whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent. An authenticating agent shall have the same rights as an Agent with respect to Holders.

Section   2.03.      Registrar and Paying Agent .

(a) The Company shall maintain an office or agency where Notes may be presented for registration of transfer or for exchange (“ Registrar ”) and an office or agency where Notes may be presented for payment (“ Paying Agent ”). The Registrar shall keep a register, on behalf of the Company, of particulars of the Notes and of their transfer and exchange (the “ Security Register ) . The Company may appoint one or more co-registrars and one or more additional paying agents. The term “Registrar” includes any co-registrar and the term “Paying Agent” includes any additional paying agent. The Company may change any Paying Agent or Registrar without notice to any Holder. The Company shall notify the Trustee in writing of the name and address of any Agent not a party to this Indenture. If the Company fails to appoint or maintain another entity as Registrar or Paying Agent, the Trustee shall act as such. The Company or any of its Subsidiaries may act as Paying Agent or Registrar.

(b) The Company initially appoints CDS to act as Depositary with respect to the Global Notes.

(c) The Company initially appoints the Trustee to act as Registrar and Paying Agent and to act as Custodian with respect to the Global Notes, and the Trustee hereby agrees so to initially act.

Without limiting the foregoing, in connection with any issue(s) of Notes to purchasers in the United States of America or any other foreign jurisdictions, the Company may by such written instrument deemed appropriate by the Company, appoint from time to time directly or through the Depositary or Trustee:

 

  (i) a depositary incorporated or organized under the laws of a foreign jurisdiction in addition or in lieu of the Depositary;

 

  (ii) a paying agent incorporated or organized under the laws of a foreign jurisdiction in addition to or in lieu of the Paying Agent; and

 

  (iii) a registrar for the purposes of registering Notes and transfers of Notes, incorporated or organized under the laws of a foreign jurisdiction in addition to the Registrar;

and, in addition, the Trustee may also appoint, with the prior consent of the Company, one or more co-certifying agent(s) incorporated or organized under the laws of a foreign jurisdiction(s).

The Security Register shall at all reasonable times, and at such reasonable costs as established by the Trustee, be open for inspection by the Company or any Holder. The Trustee and every Registrar shall from time to time when requested so to do by the Company or by the Trustee furnish the Company or the Trustee, as the case may be, with a list of names and addresses of holders of Notes entered on the register kept by them and showing the principal amount and serial numbers of the Notes held by each such holder.

 

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Section   2.04.      Paying Agent to Hold Money in Trust .

The Company shall require each Paying Agent other than the Trustee to agree in writing that the Paying Agent shall hold in trust for the benefit of Holders or the Trustee all money held by the Paying Agent for the payment of principal, premium, if any, or interest on the Notes, and shall notify the Trustee of any default by the Company in making any such payment. While any such default continues, the Trustee may require a Paying Agent to pay all funds held by it relating to the Notes to the Trustee. The Company at any time may require a Paying Agent to pay all funds held by it relating to the Notes to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the Company or a Subsidiary) shall have no further liability for such funds. If the Company or a Subsidiary acts as Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of the Holders all funds held by it as Paying Agent. Upon any Event of Default under Sections 6.01(ix) and (x) hereof relating to the Company, the Trustee shall serve as Paying Agent for the Notes.

Section   2.05.      Holder Lists .

The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of all Holders. If the Trustee is not the Registrar, the Company shall furnish to the Trustee at least seven Business Days before each Interest Payment Date and at such other times as the Trustee may request in writing, a list in such form and as of such date or such shorter time as the Trustee may allow, as the Trustee may reasonably require of the names and addresses of the Holders.

Section   2.06.      Transfer and Exchange .

(a) Transfer and Exchange of Global Notes . A Global Note may not be transferred as a whole except by the Depositary to a nominee of the Depositary, by a nominee of the Depositary to the Depositary or to another nominee of the Depositary, or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary. The Company shall exchange Global Notes for Definitive Notes if: (1) required by applicable law; (2) the Book-Entry System ceases to exist; (3) the Company determines, at its option, that the Global Notes shall be exchanged for Definitive Notes (including, without limitation, in circumstances where the Company considers it impracticable or inefficient to effect any distribution or conversion in respect of the Notes through the facilities of the Depositary) and delivers a written notice to such effect to the Trustee, (4) the Company or the Depositary advises the Trustee that the Depositary is no longer willing, able or qualified to properly discharge its responsibilities as depositary with respect to the Notes and the Company or the Trustee is unable to locate a qualified successor, (5) after the occurrence of an Event of Default, the Depositary notifies the Trustee that it has received written notification from Participants, acting on behalf of Indirect Participants representing, in the aggregate, in excess of 50% of aggregate principal amount of beneficial ownership interests in the Global Notes, that it is no longer in their best interest that the Global Notes be held by the Depositary, or (6) the Depositary ceases to be a recognized clearing agency under applicable Canadian provincial securities laws or otherwise ceases to be eligible to act as a depository and a successor is not appointed. Upon the occurrence of any of the preceding events in clauses (1), (2), (3), (4), (5) or (6) above, the Trustee shall notify the Depositary, for and on behalf of Participants and Indirect Participants, of the termination of the Book-Entry System and that the Notes will be represented by Definitive Notes, and Definitive Notes shall be issued in denominations of $1,000 or integral multiples of $1,000 in excess thereof and registered and in such names as the Depositary shall instruct the Trustee in writing. Global Notes also may be exchanged or replaced, in whole or in part, as provided in Sections 2.07 and 2.10 hereof. Except as provided above, every Note authenticated and delivered in exchange for, or in lieu of, a Global Note or any portion thereof, pursuant to this Section 2.06 or Section 2.07 or 2.10 hereof, shall be authenticated and delivered in the form of, and shall be, a Global Note. A Global Note may not be exchanged for another Note other than as provided in this Section 2.06(a), and beneficial interests in a Global Note may not be transferred and exchanged other than as provided in Section 2.06(b) or (c) hereof.

(b) Transfer and Exchange of Beneficial Interests in the Global Notes. The transfer and exchange of beneficial interests in the Global Notes shall be effected through the Depositary in accordance with the provisions of this Indenture and the Applicable Procedures. It is expressly acknowledged that transfers of beneficial

 

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ownership in any Note represented by a Global Note will be effected only (i) with respect to the interest of Participants, through records maintained by the Depositary or its nominee for the Global Notes, and (ii) with respect to interests of persons other than Participants, through records maintained by Participants. Indirect Participants who desire to purchase, sell or otherwise transfer ownership of or other interest in Notes represented by a Global Note may do so only through a Participant. Beneficial interests in Restricted Global Notes shall be subject to restrictions on transfer comparable to those set forth herein to the extent required by the 1933 Act and applicable securities laws and regulations in Canada. Transfers of beneficial interests in Global Notes also shall require compliance with either clause (i) or (ii) below, as applicable, as well as one or more of the other following clauses, as applicable:

 

  (i) Transfer of Beneficial Interests in the Same Global Note . Beneficial interests in any Restricted Global Note may be transferred to Persons who take delivery thereof in the form of a beneficial interest in the same Restricted Global Note in accordance with the transfer restrictions set forth in the Private Placement Legend and any Applicable Procedures; provided , however , that prior to the expiration of the Distribution Compliance Period, transfers of beneficial interests in the Canadian Placement Global Note may not be made to or for the account or benefit of a “U.S. Person” (as defined in Rule 902(k) of Regulation S) (other than a “distributor” (as defined in Rule 902(d) of Regulation S)). Beneficial interests in any Unrestricted Global Note may be transferred to Persons who take delivery thereof in the form of a beneficial interest in an Unrestricted Global Note, subject, however, to such transfer being in accordance with the transfer restrictions set forth in the Canadian Placement Legend and any Applicable Procedures. Except as may be required by any Applicable Procedures, no written orders or instructions shall be required to be delivered to the Registrar to effect the transfers described in this Section 2.06(b)(i).

 

  (ii) All Other Transfers and Exchanges of Beneficial Interests in Global Notes . In connection with all transfers and exchanges of beneficial interests other than those that are subject to Section 2.06(b)(i) above, the transferor of such beneficial interest must deliver to the Registrar either (A)(1) a written order from a Participant given to the Depositary in accordance with the Applicable Procedures directing the Depositary to credit or cause to be credited a beneficial interest in another Global Note in an amount equal to the beneficial interest to be transferred or exchanged and (2) instructions given in accordance with the Applicable Procedures containing information regarding the Participant account to be credited with such increase or (B) if permitted under Section 2.06(a) hereof, (1) a written order from a Participant given to the Depositary in accordance with the Applicable Procedures directing the Depositary to cause to be issued a Definitive Note in an amount equal to the beneficial interest to be transferred or exchanged and (2) instructions given by the Depositary to the Registrar containing information regarding the Person in whose name such Definitive Note shall be registered to effect the transfer or exchange referred to in (B)(1) above. Upon satisfaction of all of the requirements for transfer or exchange of beneficial interests in Global Notes contained in this Indenture and the Notes or otherwise applicable under the 1933 Act and/or applicable securities laws and regulations in Canada, the Trustee shall adjust the principal amount of the relevant Global Note(s) pursuant to Section 2.06(g) hereof.

 

  (iii) Transfer of Beneficial Interests in a Restricted Global Note to Another Restricted Global Note . A beneficial interest in any Restricted Global Note may be transferred to a Person who takes delivery thereof in the form of a beneficial interest in another Restricted Global Note if the transfer complies with the requirements of Section 2.06(b)(ii) above and the Registrar receives the following:

 

  (A) if the transferee will take delivery in the form of a beneficial interest in a 144A Global Note, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item (1) thereof; and

 

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  (B) if the transferee will take delivery in the form of a beneficial interest in a Canadian Placement Global Note, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item (2) thereof;

provided , however , that prior to the expiration of the Distribution Compliance Period, transfers of beneficial interests in the Canadian Placement Global Note may not be made to or for the account or benefit of a “U.S. Person” (as defined in Rule 902(k) of Regulation S) (other than a “distributor” (as defined in Rule 902(d) of Regulation S)).

 

  (iv) Transfer and Exchange of Beneficial Interests in a Restricted Global Note for Beneficial Interests in an Unrestricted Global Note . A beneficial interest in any Restricted Global Note may be exchanged by any holder thereof for a beneficial interest in an Unrestricted Global Note or transferred to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note only if the exchange or transfer complies with the requirements of Section 2.06(b)(ii) above and the Registrar receives the following:

 

  (1) if the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a beneficial interest in an Unrestricted Global Note, a certificate from such holder in the form of Exhibit C hereto, including the certifications in item (1)(a) thereof; or

 

  (2) if the holder of such beneficial interest in a Restricted Global Note proposes to transfer such beneficial interest to a Person who shall take delivery thereof in the form of a beneficial interest in an Unrestricted Global Note, a certificate from such holder in the form of Exhibit B hereto, including the certifications in item (4) thereof;

and, in each such case, if the Company or the Registrar so requests or if the Applicable Procedures so require, such certifications and/or an Opinion of Counsel in form reasonably acceptable to the Company and the Registrar to the effect that such exchange or transfer shall be effected in compliance with the 1933 Act and applicable securities laws in Canada and that the restrictions on transfer contained herein and in the 144A Legend shall no longer be required in order to maintain compliance with the 1933 Act.

If any such transfer is effected at a time when an Unrestricted Global Note has not been issued, the Company shall execute and, upon receipt of an Authentication Order in accordance with Section 2.02 hereof, the Trustee shall authenticate one or more Unrestricted Global Notes in an aggregate principal amount equal to the aggregate principal amount of beneficial interests transferred pursuant to this Section 2.06(b)(iv).

(c) Transfer or Exchange of Beneficial Interests for Definitive Notes.

 

  (i) Beneficial Interests in Restricted Global Notes to Restricted Definitive Notes . Subject to Section 2.06(a) hereof, if any holder of a beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a Restricted Definitive Note or to transfer such beneficial interest to a Person who takes delivery thereof in the form of a Restricted Definitive Note, then, upon receipt by the Registrar of the following documentation:

 

  (A) if the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a Restricted Definitive Note, a certificate from such holder in the form of Exhibit C hereto, including the certifications in item (2)(a) thereof;

 

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  (B) if such beneficial interest is being transferred in a transaction exempt from (or not subject to) the prospectus qualification and dealer registration requirements of applicable Canadian provincial securities laws and to a non-U.S. Person (within the meaning of Rule 902(k) of Regulation S) in an offshore transaction in accordance with Rule 903 or Rule 904, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (2) thereof;

 

  (C) if such beneficial interest is being transferred to a QIB in accordance with Rule 144A, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (1) thereof;

 

  (D) if such beneficial interest is being transferred pursuant to an exemption from the registration requirements of the 1933 Act in accordance with Rule 144 under the 1933 Act, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (3)(a) thereof;

 

  (E) if such beneficial interest is being transferred to an Institutional Accredited Investor in reliance on an exemption from the registration requirements of the 1933 Act other than those listed in clauses (B) through (D) above, a certificate to the effect set forth in Exhibit B hereto, including the certifications, certificates and Opinion of Counsel required by item (3)(d) thereof, as applicable; or

 

  (F) if such beneficial interest is being transferred to the Company or any of its Subsidiaries, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (3)(b) thereof,

the Trustee shall reduce or cause to be reduced in a corresponding amount pursuant to Section 2.06(g) hereof the aggregate principal amount of the applicable Restricted Global Note, and the Company shall execute and, upon receipt of an Authentication Order in accordance with Section 2.02 hereof, the Trustee shall authenticate and deliver a Restricted Definitive Note in the appropriate principal amount to the Person designated by the holder of such beneficial interest in instructions delivered to the Registrar by the Depositary and the applicable Participant or Indirect Participant on behalf of such holder, provided, however , that no beneficial interest in a Canadian Placement Global Note shall be exchanged for or transferred to a Person who takes delivery thereof in the form of a Restricted Definitive Note prior to the expiration of the Distribution Compliance Period. Any Restricted Definitive Note issued in exchange for a beneficial interest in a Restricted Global Note pursuant to this Section 2.06(c)(i) shall be registered in such name or names and in such authorized denomination or denominations as the holder of such beneficial interest shall designate in such instructions. The Trustee shall deliver such Restricted Definitive Notes to the Persons in whose names such Notes are so registered. Any Restricted Definitive Note issued in exchange for a beneficial interest in a Restricted Global Note pursuant to this Section 2.06(c)(i) shall bear the Private Placement Legend and shall be subject to all restrictions on transfer contained therein.

 

  (ii) Beneficial Interests in Restricted Global Notes to Unrestricted Definitive Notes . Subject to Section 2.06(a) hereof, a holder of a beneficial interest in a Restricted Global Note may exchange such beneficial interest for an Unrestricted Definitive Note or may transfer such beneficial interest to a Person who takes delivery thereof in the form of an Unrestricted Definitive Note only if the Registrar receives the following:

 

  (1) if the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for an Unrestricted Definitive Note, a certificate from such holder in the form of Exhibit C hereto, including the certifications in item (1)(b) thereof; or

 

  (2) if the holder of such beneficial interest in a Restricted Global Note proposes to transfer such beneficial interest to a Person who shall take delivery thereof in the form of an Unrestricted Definitive Note, a certificate from such holder in the form of Exhibit B hereto, including the certifications in item (4) thereof;

 

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and, in each such case, if the Registrar or the Company so requests or if the Applicable Procedures so require, an Opinion of Counsel in form reasonably acceptable to the Registrar and the Company to the effect that such exchange or transfer shall be effected in compliance with the 1933 Act and applicable securities laws in Canada and that the restrictions on transfer contained herein and in the 144A Legend shall no longer be required in order to maintain compliance with the 1933 Act, provided , however , that no beneficial interest in a Canadian Placement Global Note shall be exchanged for or transferred to a Person who takes delivery thereof in the form of an Unrestricted Definitive Note prior to the expiration of the Distribution Compliance Period.

Upon satisfaction of the conditions of any of the clauses of this Section 2.06(c)(ii) the Company shall execute, and, upon receipt of an Authentication Order in accordance with Section 2.02 hereof, the Trustee shall authenticate and deliver an Unrestricted Definitive Note in the appropriate principal amount to the Person designated by the holder of such beneficial interest in instructions delivered to the Registrar by the Depositary and the applicable Participant or Indirect Participant on behalf of such holder, and the Trustee shall reduce or cause to be reduced in a corresponding amount pursuant to Section 2.06(g) hereof the aggregate principal amount of the applicable Restricted Global Note.

 

  (iii) Beneficial Interests in Unrestricted Global Notes to Unrestricted Definitive Notes . Subject to Section 2.06(a) hereof, if any holder of a beneficial interest in an Unrestricted Global Note proposes to exchange such beneficial interest for an Unrestricted Definitive Note or to transfer such beneficial interest to a Person who takes delivery thereof in the form of an Unrestricted Definitive Note, then, upon satisfaction of the applicable conditions set forth in Section 2.06(b)(ii) hereof, the Trustee shall reduce or cause to be reduced in a corresponding amount pursuant to Section 2.06(g) hereof the aggregate principal amount of the applicable Unrestricted Global Note, and the Company shall execute and, upon receipt of an Authentication Order in accordance with Section 2.02 hereof, the Trustee shall authenticate and deliver an Unrestricted Definitive Note in the appropriate principal amount to the Person designated by the holder of such beneficial interest in instructions delivered to the Registrar by the Depositary and the applicable Participant or Indirect Participant on behalf of such holder. Any Unrestricted Definitive Note issued in exchange for a beneficial interest pursuant to this Section 2.06(c)(iii) shall be registered in such name or names and in such authorized denomination or denominations as the holder of such beneficial interest shall designate in such instructions. The Trustee shall deliver such Unrestricted Definitive Notes to the Persons in whose names such Notes are so registered. Any Unrestricted Definitive Note issued in exchange for a beneficial interest pursuant to this Section 2.06(c)(iii) shall not bear the 144A Legend.

(d) Transfer and Exchange of Definitive Notes for Beneficial Interests.

 

  (i) Restricted Definitive Notes to Beneficial Interests in Restricted Global Notes . If any holder of a Restricted Definitive Note proposes to exchange such Note for a beneficial interest in a Restricted Global Note or to transfer such Restricted Definitive Notes to a Person who takes delivery thereof in the form of a beneficial interest in a Restricted Global Note, then, upon receipt by the Registrar of the following documentation:

 

  (A) if the holder of such Restricted Definitive Note proposes to exchange such Note for a beneficial interest in a Restricted Global Note, a certificate from such holder in the form of Exhibit C hereto, including the certifications in item (2)(b) thereof;

 

  (B)

if such Restricted Definitive Note is being transferred in a transaction exempt from (or not subject to) the prospectus qualification and dealer registration

 

35


  requirements of applicable securities laws and regulations in Canada and to a non-U.S. Person (within the meaning of Rule 902(k) of Regulation S) in an offshore transaction in accordance with Rule 903 or Rule 904, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (2) thereof; or

 

  (C) if such Restricted Definitive Note is being transferred to a QIB in accordance with Rule 144A, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (1) thereof;

the Trustee shall cancel the Restricted Definitive Note, increase or cause to be increased in a corresponding amount pursuant to Section 2.06(g) hereof the aggregate principal amount of, in the case of clause (A) above, the appropriate Restricted Global Note, in the case of clause (B) above, a Canadian Placement Global Note, and in the case of clause (C) above, a 144A Global Note.

 

  (ii) Restricted Definitive Notes to Beneficial Interests in Unrestricted Global Notes . A holder of a Restricted Definitive Note may exchange such Note for a beneficial interest in an Unrestricted Global Note or transfer such Restricted Definitive Note to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note only if the Registrar receives the following:

 

  (1) if the holder of such Restricted Definitive Note proposes to exchange such Note for a beneficial interest in an Unrestricted Global Note, a certificate from such holder in the form of Exhibit C hereto, including the certifications in item (1)(c) thereof; or

 

  (2) if the holder of such Restricted Definitive Note proposes to transfer such Note to a Person who shall take delivery thereof in the form of a beneficial interest in an Unrestricted Global Note, a certificate from such holder in the form of Exhibit B hereto, including the certifications in item (4) thereof;

and, in each such case, if the Registrar or the Company so requests or if the Applicable Procedures so require, an Opinion of Counsel in form reasonably acceptable to the Registrar and the Company to the effect that such exchange or transfer shall be effected in compliance with the 1933 Act and applicable Canadian provincial securities laws, if applicable, and that the restrictions on transfer contained herein and in the 144A Legend shall no longer be required in order to maintain compliance with the 1933 Act.

Upon satisfaction of the conditions of any of the clauses in this Section 2.06(d)(ii), the Trustee shall cancel such Restricted Definitive Note and increase or cause to be increased in a corresponding amount pursuant to Section 2.06(g) hereof the aggregate principal amount of the Unrestricted Global Note.

 

  (iii) Unrestricted Definitive Notes to Beneficial Interests in Unrestricted Global Notes . A holder of an Unrestricted Definitive Note may exchange such Note for a beneficial interest in an Unrestricted Global Note or transfer such Unrestricted Definitive Note to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note at any time. Upon receipt of a request for such an exchange or transfer, the Trustee shall cancel the applicable Unrestricted Definitive Note and increase or cause to be increased in a corresponding amount pursuant to Section 2.06(g) hereof the aggregate principal amount of one of the Unrestricted Global Notes.

 

  (iv)

Issuance of Unrestricted Global Notes . If any such exchange or transfer of a Definitive Note for a beneficial interest in an Unrestricted Global Note is to be effected pursuant to clause (ii) or (iii) above at a time when an Unrestricted Global Note has not been issued,

 

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the Company shall issue and, upon receipt of an Authentication Order in accordance with Section 2.02 hereof, the Trustee shall authenticate one or more Unrestricted Global Notes in an aggregate principal amount equal to the principal amount of Definitive Notes so transferred.

(e) Transfer and Exchange of Definitive Notes for Definitive Notes . Upon request by a holder of Definitive Notes and such holder’s compliance with the provisions of this Section 2.06(e), the Registrar shall register the transfer or exchange of Definitive Notes. Prior to such registration of transfer or exchange, the requesting holder shall present or surrender to the Registrar the Definitive Notes duly endorsed or accompanied by a written instruction of transfer in form satisfactory to the Registrar duly executed by such holder. In addition, the requesting holder shall provide any additional certifications, documents and information, as applicable, required pursuant to the following provisions of this Section 2.06(e).

 

  (i) Restricted Definitive Notes to Restricted Definitive Notes . Any Restricted Definitive Note may be transferred to and registered in the name of Persons who take delivery thereof in the form of a Restricted Definitive Note if the Registrar receives the following:

 

  (A) if the transfer will be made in a transaction exempt from (or not subject to) the prospectus qualification and dealer registration requirements of applicable securities laws and regulations in Canada and will be made pursuant to Rule 903 or Rule 904, a certificate in the form of Exhibit B hereto, including the certifications in item (2) thereof;

 

  (B) if the transfer will be made pursuant to Rule 144A, a certificate in the form of Exhibit B hereto, including the certifications in item (1) thereof; and

 

  (C) if the transfer will be made pursuant to any other exemption from the registration requirements of the 1933 Act, a certificate in the form of Exhibit B hereto, including the certifications, certificates and Opinion of Counsel required by item (3) thereof, if applicable.

 

  (ii) Restricted Definitive Notes to Unrestricted Definitive Notes . Any Restricted Definitive Note may be exchanged by the holder thereof for an Unrestricted Definitive Note or transferred to a Person or Persons who take delivery thereof in the form of an Unrestricted Definitive Note only if the Registrar receives the following:

 

  (1) if the holder of such Restricted Definitive Notes proposes to exchange such Notes for an Unrestricted Definitive Note, a certificate from such holder in the form of Exhibit C hereto, including the certifications in item (1)(d) thereof; or

 

  (2) if the holder of such Restricted Definitive Notes proposes to transfer such Notes to a Person who shall take delivery thereof in the form of an Unrestricted Definitive Note, a certificate from such holder in the form of Exhibit B hereto, including the certifications in item (4) thereof;

and, in each such case, if the Registrar or the Company so requests, an Opinion of Counsel in form reasonably acceptable to the Registrar and the Company to the effect that such exchange or transfer shall be effected in compliance with the 1933 Act and applicable securities laws and regulations in Canada, and that the restrictions on transfer contained herein and in the 144A Legend shall no longer be required in order to maintain compliance with the 1933 Act.

Upon satisfaction of the conditions of any of the clauses of Section 2.06(e)(ii) the Trustee shall cancel the prior Restricted Definitive Note and the Company shall execute, and, upon receipt of an Authentication Order in accordance with Section 2.02 hereof, the Trustee shall authenticate and deliver an Unrestricted Definitive Note in the appropriate principal amount to the Person designated by the holder of such prior Restricted Definitive Note in instructions delivered to the Registrar by such holder.

 

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  (iii) Unrestricted Definitive Notes to Unrestricted Definitive Notes . A holder of Unrestricted Definitive Notes may transfer such Notes to a Person who takes delivery thereof in the form of an Unrestricted Definitive Note. Upon receipt of a request to register such a transfer, the Registrar shall register the Unrestricted Definitive Notes pursuant to the instructions from the Holders thereof.

(f) Legends . The following legends shall appear on the face of all Global Notes and Definitive Notes issued under this Indenture unless specifically stated otherwise in the applicable provisions of this Indenture.

 

  (i) Private Placement Legends.

 

  (A) Except as permitted by clause (C) below, each Global Note and each Definitive Note (and all Notes issued in exchange therefor or substitution thereof) shall bear the legend in substantially the following form (the 144A Legend ”):

“THIS NOTE AND THE GUARANTEES HEREOF (TOGETHER, THIS “SECURITY”) HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.

THE HOLDER OF THIS SECURITY BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN AGREES FOR THE BENEFIT OF VIDEOTRON LTD. (“VIDEOTRON”) NOT TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) WHICH IS ONE YEAR AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH VIDEOTRON OR ANY AFFILIATE OF VIDEOTRON WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), EXCEPT (A) TO VIDEOTRON OR ANY OF ITS SUBSIDIARIES, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”), TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A) THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES IN OFFSHORE TRANSACTIONS MEETING THE REQUIREMENTS OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN “ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT AND IN A MINIMUM PRINCIPAL AMOUNT OF THE SECURITIES OF $250,000 PURSUANT TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND FOR INVESTMENT PURPOSES ONLY AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION OF THE NOTES IN VIOLATION OF THE SECURITIES ACT, OR (F) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE

 

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REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, AND, IN EACH CASE SUBJECT TO APPLICABLE STATE OR NON-U.S. LAW AND SUBJECT TO VIDEOTRON’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (I) PURSUANT TO CLAUSE (D), (E) OR (F) PRIOR TO THE RESALE RESTRICTION TERMINATION DATE TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM AND (II) TO REQUIRE THAT A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THIS NOTE IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.”

 

  (B) Each Global Note and each Definitive Note (and all Notes issued in exchange therefor or substitution thereof) shall bear the legend in substantially the following form (the Canadian Placement Legend ):

CANADIAN RESALES LEGEND:

UNLESS PERMITTED UNDER SECURITIES LEGISLATION, THE HOLDER OF THIS SECURITY MUST NOT TRADE THIS SECURITY BEFORE THE DATE THAT IS 4 MONTHS AND A DAY AFTER THE LATER OF (I) SEPTEMBER 15, 2015, AND (II) THE DATE THAT THE ISSUER BECAME A REPORTING ISSUER IN ANY PROVINCE OR TERRITORY.”

 

  (C) Notwithstanding the foregoing, any Global Note or Definitive Note issued pursuant to clauses (b)(iv), (c)(ii), (c)(iii), (d)(ii), (d)(iii), (e)(ii), or (e)(iii) to this Section 2.06 (and all Notes issued in exchange therefor or substitution thereof) shall not bear the 144A Legend.

 

  (ii) Global Note Legend . Each Global Note shall bear a legend in substantially the following form, subject to such modification as required by the Depositary:

“T HIS CERTIFICATE IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF . U NLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF CDS C LEARING AND D EPOSITORY S ERVICES I NC . (“CDS”) TO V IDEOTRON L TD . ( THE “I SSUER ”) OR ITS AGENT FOR REGISTRATION OF TRANSFER , EXCHANGE OR PAYMENT , AND ANY CERTIFICATE ISSUED IN RESPECT THEREOF IS REGISTERED IN THE NAME OF CDS & C O ., OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF CDS ( AND ANY PAYMENT IS MADE TO CDS & C O ., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF CDS), ANY TRANSFER , PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED HOLDER HEREOF , CDS & C O ., HAS A PROPERTY INTEREST IN THE SECURITIES REPRESENTED BY THIS CERTIFICATE HEREIN AND IT IS A VIOLATION OF ITS RIGHTS FOR ANOTHER PERSON TO HOLD , TRANSFER OR DEAL WITH THIS CERTIFICATE .”

(g) Cancellation and/or Adjustment of Global Notes . At such time as all beneficial interests in a particular Global Note have been exchanged for Definitive Notes or a particular Global Note has been redeemed, repurchased or cancelled in whole and not in part, each such Global Note shall be returned to or retained and cancelled by the Trustee in accordance with Section 2.11 hereof. At any time prior to such cancellation, if any beneficial interest in a Global Note is exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interest in another Global Note or for Definitive Notes, the principal amount of Notes represented by such Global Note shall be reduced accordingly and an endorsement shall be made on such Global Note by the Trustee or by the Depositary at the direction of the Trustee to reflect such reduction; and if the beneficial interest is being exchanged for or transferred to a Person who will take delivery thereof in the form of a

 

39


  beneficial interest in another Global Note, such other Global Note shall be increased accordingly and an endorsement shall be made on such Global Note by the Trustee or by the Depositary at the direction of the Trustee to reflect such increase.

(h) General Provisions Relating to Transfers and Exchanges.

 

  (i) No service charge shall be made to a Holder of a beneficial interest in a Global Note or to a Holder of a Definitive Note for any registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith (other than any such transfer taxes or similar governmental charge payable upon exchange or transfer pursuant to Sections 2.10, 3.06, 4.12, 4.18 and 9.04 hereof).

 

  (ii) All Global Notes and Definitive Notes issued upon any registration of transfer or exchange of Global Notes or Definitive Notes shall be the valid obligations of the Company, evidencing the same Indebtedness, as the Global Notes or Definitive Notes surrendered upon such registration of transfer or exchange and shall be entitled to all of the benefits of this Indenture equally and proportionately with all other Notes duly issued hereunder.

 

  (iii) Neither the Registrar nor the Company shall be required (A) to issue, to register the transfer of or to exchange any Notes during a period beginning at the opening of business 15 days before the day of any selection of Notes for redemption under Section 3.02 hereof and ending at the close of business on the date of selection, (B) to register the transfer of or to exchange any Note so selected for redemption in whole or in part, except the unredeemed portion of any Note being redeemed in part or (C) to register the transfer of or to exchange a Note between a record date (including a Regular Record Date) and the next succeeding Interest Payment Date.

 

  (iv) All transfers of any Notes shall be presented to, and registered by, the Registrar, and prior to due presentment for the registration of a transfer of any Note, the Trustee, any Agent and the Company may deem and treat the Person in whose name any Note is registered as the absolute owner of such Note for the purpose of receiving payment of principal of and interest on such Note and for all other purposes, in each case regardless of any notice to the contrary.

 

  (v) All certifications, certificates and Opinions of Counsel required to be submitted to the Registrar pursuant to this Section 2.06 to effect a registration of transfer or exchange may be submitted by facsimile.

Section   2.07.      Replacement Notes .

If any mutilated Note is surrendered to the Trustee or the Company and the Trustee receives evidence to its satisfaction of the destruction, loss or theft of any Note, the Company shall issue and the Trustee, upon receipt of an Authentication Order in accordance with Section 2.02 hereof, shall authenticate a replacement Note. If required by the Trustee or the Company, the Holder of such Note shall provide indemnity sufficient, in the judgment of the Trustee or the Company, as applicable, to protect the Company, the Trustee, any Agent and any authenticating agent from any loss that any of them may suffer in connection with such replacement. If required by the Company, such Holder shall reimburse the Company for its reasonable expenses in connection with such replacement.

Every replacement Note issued in accordance with this Section 2.07 shall be the valid obligation of the Company evidencing the same Indebtedness as the destroyed, lost or stolen Note and shall be entitled to all of the benefits of this Indenture equally and proportionately with all other Notes duly issued hereunder.

 

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Section 2.08.     Outstanding Notes .

 

  (1) The Notes outstanding at any time shall be the entire principal amount of Notes represented by all the Global Notes and Definitive Notes authenticated by the Trustee except for those cancelled by it, those delivered to it for cancellation, those subject to reductions in beneficial interests effected by the Trustee in accordance with Section 2.06 hereof, and those described in this Section 2.08 as not outstanding. Except as set forth in Section 2.09 hereof, a Note shall not cease to be outstanding because the Company or an Affiliate of the Company holds the Note; provided, however, that Notes held by the Company or a Subsidiary of the Company shall be deemed not to be outstanding for purposes of Section 3.07(3) hereof.

 

  (2) If a Note is replaced pursuant to Section 2.07 hereof, it shall cease to be outstanding unless the Trustee receives proof satisfactory to it that the replaced Note is held by a bona fide purchaser.

 

  (3) If the principal amount of any Note is considered paid under Section 4.01 hereof, it shall cease to be outstanding and interest on it shall cease to accrue.

 

  (4) If the Paying Agent (other than the Company, a Subsidiary or an Affiliate of any thereof) holds, on a redemption date, a Purchase Date or maturity date, funds sufficient to pay Notes payable on that date, then on and after that date such Notes shall be deemed to be no longer outstanding and shall cease to accrue interest.

Section   2.09 .     Treasury Notes .

In determining whether the Holders of the required principal amount of Notes have concurred in any direction, waiver or consent, Notes owned by the Company, or by any Affiliate of the Company, shall be considered as though not outstanding, except that for the purposes of determining whether the Trustee shall be protected in relying on any such direction, waiver or consent, only Notes as to which a Responsible Officer of the Trustee has received an Officer’s Certificate stating that such Notes are so owned shall be so disregarded.

Section   2.10.      Temporary Notes .

Until certificates representing Notes are ready for delivery, the Company may prepare and the Trustee, upon receipt of an Authentication Order in accordance with Section 2.02 hereof, shall authenticate temporary Notes. Temporary Notes shall be substantially in the form of Definitive Notes but may have variations that the Company considers appropriate for temporary Notes and as shall be reasonably acceptable to the Trustee. Without unreasonable delay, the Company shall prepare and the Trustee shall authenticate Global Notes or Definitive Notes in exchange for temporary Notes, as applicable.

Holders of temporary Notes shall be entitled to all of the benefits of this Indenture equally and proportionately with all other Notes duly issued hereunder.

Section   2.11.      Cancellation .

The Company at any time may deliver Notes to the Trustee for cancellation. The Registrar and Paying Agent shall forward to the Trustee any Notes surrendered to them for registration of transfer, exchange or payment. Upon sole direction of the Company, the Trustee shall cancel all Notes surrendered for registration of transfer, exchange, payment, replacement or cancellation and shall destroy cancelled Notes (subject to the record retention requirements of applicable laws). Certification of the destruction of all cancelled Notes shall be delivered to the Company from time to time upon request. The Company may not issue new Notes to replace Notes that it has paid or that have been delivered to the Trustee for cancellation.

 

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Section   2.12.      Defaulted Interest .

If the Company defaults in a payment of interest on the Notes, it shall pay the defaulted interest in any lawful manner plus, to the extent lawful, interest payable on the defaulted interest, to the Persons who are Holders on a subsequent special record date, in each case at the rate provided in the Notes and in Section 4.01 hereof. The Company shall notify the Trustee in writing of the amount of defaulted interest proposed to be paid on each Note and the date of the proposed payment. The Company shall fix or cause to be fixed each such special record date and payment date, provided that no such special record date shall be less than 10 days prior to the related payment date for such defaulted interest. At least 15 days before the special record date, the Company (or, upon the written request of the Company, the Trustee in the name and at the expense of the Company) shall mail or cause to be mailed to Holders a notice that states the special record date, the related payment date and the amount of such interest to be paid.

Section   2.13.      CUSIP or ISIN Numbers .

The Company in issuing the Notes may use “CUSIP” or “ISIN” numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP” or “ISIN” numbers in notices of redemption as a convenience to Holders; provided, however, that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Notes or as contained in any notice of a redemption or notice of an Offer to Purchase and that reliance may be placed only on the other identification numbers printed on the Notes, and any such redemption or Offer to Purchase shall not be affected by any defect in or omission of such numbers. The Company shall promptly notify the Trustee of any change in the “CUSIP” or “ISIN” numbers.

Section   2.14.      Issuance of Additional Notes .

The Company shall be entitled, subject to its compliance with Section 4.09 hereof, to issue Additional Notes under this Indenture which shall have identical terms as the Initial Notes issued on the date hereof, other than with respect to the date of issuance, and issue price. The Initial Notes issued on the date hereof, and any Additional Notes shall be treated as a single class for all purposes under this Indenture, including without limitation, directions, waivers, consents, redemptions and Offers to Purchase.

With respect to any Additional Notes, the Company shall set forth in a Board Resolution and an Officers’ Certificate, a copy of each of which shall be delivered to the Trustee, the following information:

 

  (1) the aggregate principal amount of such Additional Notes to be authenticated and delivered pursuant to this Indenture;

 

  (2) the issue price, the issue date and the CUSIP and/or ISIN number of such Additional Notes provided, however, that no Additional Notes may be issued at a price that would cause such Additional Notes to have “original issue discount” within the meaning of Section 1273 of the Code; and

 

  (3) whether such Additional Notes shall be subject to the restrictions on transfer set forth in Section 2.06 hereof relating to Restricted Global Notes and Restricted Definitive Notes.

ARTICLE 3.

REDEMPTION AND PREPAYMENT

Section   3.01.      Notices to Trustee .

If the Company elects to redeem Notes pursuant to the optional redemption provisions of Section 3.07 hereof, it shall furnish to the Trustee, at least 20 days but not more than 60 days before a redemption date (or such shorter period as allowed by the Trustee), an Officers’ Certificate setting forth (i) the applicable section of this Indenture pursuant to which the redemption shall occur, (ii) the redemption date, (iii) the principal amount of Notes to be redeemed and (iv) the redemption price.

 

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Section   3.02.      Selection of Notes to be Redeemed .

If less than all of the Notes are to be redeemed at any time, the Trustee shall select the Notes to be redeemed among the Holders of the Notes in compliance with the requirements of the principal national securities exchange, if any, on which the Notes are listed or, if the Notes are not so listed, on a pro rata basis, by lot or in accordance with any other method the Trustee considers fair and appropriate. In the event of partial redemption by lot, the particular Notes to be redeemed shall be selected, unless otherwise provided herein, not less than 15 nor more than 60 days prior to the redemption date by the Trustee from the outstanding Notes not previously called for redemption.

The Trustee shall promptly notify the Company in writing of the Notes selected for redemption and, in the case of any Note selected for partial redemption, the principal amount thereof to be redeemed. Notes and portions of Notes selected shall be in amounts of $1,000 or integral multiples of $1,000 in excess thereof, except that if all of the Notes of a Holder are to be redeemed, the entire outstanding amount of Notes held by such Holder, even if not an integral multiple of $1,000, shall be redeemed. Except as provided in the preceding sentence, provisions of this Indenture that apply to Notes called for redemption also apply to portions of Notes called for redemption.

Section   3.03.      Notice of Redemption .

Notices of redemption shall be mailed by first class mail, at least 15 days but not more than 60 days before the date of redemption, to each Holder whose Notes are to be redeemed at such Holder’s address appearing in the Security Register maintained in respect of the Notes by the Registrar (with a copy to the Trustee), or otherwise delivered in accordance with the procedures of the Depositary.

The notice shall identify the Notes to be redeemed and shall state:

 

  (1) the redemption date;

 

  (2) the redemption price or if the redemption is made pursuant to Section 3.07(2) hereof a calculation of the redemption price;

 

  (3) if any Note is being redeemed in part, the portion of the principal amount of such Note to be redeemed and that, after the redemption date upon surrender of such Note, a new Note or Notes in principal amount equal to the unredeemed portion shall be issued upon cancellation of the original Note;

 

  (4) the name and address of the Paying Agent;

 

  (5) that Notes called for redemption must be surrendered to the Paying Agent to collect the redemption price;

 

  (6) that, unless the Company defaults in making such redemption payment, interest on Notes called for redemption ceases to accrue on and after the redemption date;

 

  (7) the applicable section of this Indenture pursuant to which the Notes called for redemption are being redeemed; and

 

  (8) that no representation is made as to the correctness of the CUSIP or ISIN numbers, if any, listed in such notice or printed on the Notes.

At the Company’s request, the Trustee shall give the notice of redemption in the Company’s name and at its expense; provided, however , that the Company shall have delivered to the Trustee, at least 20 days (or such shorter

 

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period allowed by the Trustee) prior to the redemption date, an Officers’ Certificate requesting that the Trustee give such notice (in the name and at the expense of the Company) and setting forth the information to be stated in such notice as provided in this Section 3.03.

Section   3.04 .     Effect of Notice of Redemption .

Once notice of redemption is given in accordance with Section 3.03 hereof, Notes called for redemption shall become irrevocably due and payable on the redemption date at the redemption price. A notice of redemption may not be conditional.

Section   3.05.      Deposit of Redemption Price .

On or prior to 11:00 a.m. Eastern time on the Business Day prior to any redemption date (or on or prior to 10:00 a.m. Eastern time on such redemption date itself, if so allowed by the Trustee), the Company shall deposit with the Trustee or with the Paying Agent money sufficient to pay the redemption price of and accrued and unpaid interest on all Notes to be redeemed on that date. The Trustee or the Paying Agent shall promptly return to the Company any money deposited with the Trustee or the Paying Agent by the Company in excess of the amounts necessary to pay the redemption price of, and accrued and unpaid interest on, all Notes to be redeemed.

If the Company complies with the provisions of the preceding paragraph, on and after the redemption date, interest shall cease to accrue on the Notes or the portions of Notes called for redemption in accordance with Section 2.08(4) hereof. If a Note is redeemed on or after a Regular Record Date but on or prior to the related Interest Payment Date, then any accrued and unpaid interest shall be paid to the Person in whose name such Note was registered at the close of business on such Regular Record Date. If any Note called for redemption shall not be so paid upon surrender for redemption because of the failure of the Company to comply with the preceding paragraph, interest shall be paid on the unpaid principal from the redemption date until such principal is paid, and to the extent lawful on any interest not paid on such unpaid principal, in each case at the rate provided in the Notes and in Section 4.01 hereof.

Section   3.06.      Notes Redeemed in Part .

Upon surrender of a Note that is redeemed in part, the Company shall issue and, upon the Company’s written request, the Trustee shall authenticate for the Holder at the expense of the Company a new Note equal in principal amount to the unredeemed portion of the Note surrendered.

Section   3.07.      Optional Redemption

 

  (1) Except as set forth in clauses (2) to (4) of this Section 3.07, the Notes shall not be redeemable at the option of the Company prior to September 15, 2020. Beginning on September 15, 2020, the Company may redeem all or a part of the Notes, at once or over time, in accordance with Section 3.03 hereof, at the redemption prices (expressed as percentages of principal amount) set forth below, plus accrued and unpaid interest thereon to (but excluding) the applicable redemption date (subject to the right of Holders of record on the relevant Regular Record Date to receive interest due on the relevant Interest Payment Date), if redeemed during the twelve-month period commencing on September 15 of the years indicated below:

 

Redemption Year

   Percentage  

2020

     102.875

2021

     101.917

2022

     100.958

2023 and thereafter

     100.000

 

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  (2) At any time prior to September 15, 2018, the Company may on any one or more occasions redeem up to 35% of the aggregate principal amount of the Notes issued under this Indenture, in accordance with Section 3.03 hereof, at a redemption price (expressed as a percentage of principal amount) equal to 105.75% of the principal amount thereof, plus accrued and unpaid interest thereon to (but excluding) the redemption date (subject to the right of Holders of record on the relevant Regular Record Date to receive interest due on the relevant Interest Payment Date) with the net cash proceeds of one or more Equity Offerings; provided, however , that (i) at least 65% of the aggregate principal amount of the Notes issued under this Indenture (excluding Notes held by the Company and its Subsidiaries) remain outstanding immediately following such redemption and (ii) any such redemption occurs within 90 days of the date of the closing of any such Equity Offering.

 

  (3) If the Company becomes obligated to pay any Additional Amounts because of a change in the laws or regulations of Canada or any Canadian Taxing Authority, or a change in any official position regarding the application or interpretation thereof, in either case that is publicly announced or becomes effective on or after the Issue Date, the Company may, at any time, redeem all, but not part, of the Notes at a price equal to 100% of the principal amount thereof, plus accrued and unpaid interest to (but excluding) the redemption date, provided that at any time that the aggregate principal amount of the Notes outstanding is greater than $20.0 million, any Holder of the Notes may, to the extent that it does not adversely affect the Company’s after-tax position, at its option, waive the Company’s compliance with the provisions of Section 4.20 hereof with respect to such Holder’s Notes; provided, further , that if any Holder waives such compliance, the Company may not redeem that Holder’s Notes pursuant to this Section 3.07(3).

 

  (4) Prior to September 15, 2020, the Company may redeem the Notes, in whole or in part, in accordance with Section 3.03 hereof, at a redemption price equal to the greater of (a) the Canada Yield Price and (b) 100% of the aggregate principal amount of Notes to be redeemed, plus, in each case, accrued and unpaid interest thereon to (but excluding) the redemption date.

 

  (5) Any prepayment pursuant to this Section 3.07 shall be made pursuant to the provisions of Sections 3.01 through 3.06 hereof.

Section   3.08.      Mandatory Redemption .

Except as set forth in Sections 4.12 and 4.18 hereof, the Company shall not be required to make mandatory redemption or sinking fund payments with respect to, or offers to purchase, the Notes.

Section   3.09.      Offers to Purchase .

 

  (1) In the event that, pursuant to Section 4.12 or 4.18 hereof, the Company shall be required to commence an Asset Sale Offer or Change of Control Offer (each, an “ Offer to Purchase ”), it shall follow the procedures specified below.

 

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  (2) The Company shall commence the Offer to Purchase by sending a notice by first class mail, with a copy to the Trustee, to each Holder, at such Holder’s address appearing in the Security Register, or pursuant to the applicable procedures of the Depositary, the terms of which notice shall govern the Offer to Purchase, stating:

 

  (i) that the Offer to Purchase is being made pursuant to this Section 3.09 and Section 4.12 or 4.18, as the case may be, and, in the case of a Change of Control Offer, that a Change of Control Triggering Event has occurred, the transaction or transactions that constitute the Change of Control Triggering Event, and that a Change of Control Offer is being made pursuant to Section 4.18 hereof;

 

  (ii) the principal amount of Notes required to be purchased pursuant to Section 4.12 or 4.18 hereof (the “ Offer Amount ”), the purchase price, the Offer Period and the Purchase Date (each as defined below);

 

  (iii) except as provided in clause (ix), that all Notes timely tendered and not withdrawn shall be accepted for payment;

 

  (iv) that any Note not tendered or accepted for payment shall continue to accrue interest;

 

  (v) that, unless the Company defaults in making such payment, any Note accepted for payment pursuant to the Offer to Purchase shall cease to accrue interest on or after the Purchase Date;

 

  (vi) that Holders electing to have a Note purchased pursuant to the Offer to Purchase may elect to have Notes purchased in integral multiples of $1,000 only;

 

  (vii) that Holders electing to have a Note purchased pursuant to the Offer to Purchase shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, or transfer by book-entry transfer, to the Company, a Depositary, if appointed by the Company, or a Paying Agent at the address specified in the notice at least three days before the Purchase Date;

 

  (viii) that Holders shall be entitled to withdraw their election if the Company, the Depositary or the Paying Agent, as the case may be, receives, not later than the expiration of the Offer Period, a telegram, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note (or portions thereof) the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased;

 

  (ix) that, in the case of an Asset Sale Offer, if the aggregate principal amount of Notes surrendered by Holders exceeds the Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000 or integral multiples of $1,000 in excess thereof shall be purchased);

 

  (x) that Holders whose Notes were purchased in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer); and

 

  (xi) any other procedures that Holders must follow in order to tender their Notes (or portions thereof) for payment.

 

  (3)

The Offer to Purchase shall remain open for a period of at least 15 days but no more than 60 days following the date of the notice of the Offer to Purchase, except to the extent that a longer period

 

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  is required by applicable law (the “ Offer Period ”). No later than five Business Days after the termination of the Offer Period (the “ Purchase Date ”), the Company shall purchase the Offer Amount or, if less than the Offer Amount has been tendered, all Notes tendered in response to the Offer to Purchase. Payment for any Notes so purchased shall be made in the same manner as interest payments are made.

 

  (4) On or prior to the Purchase Date, the Company shall, to the extent lawful:

 

  (i) accept for payment (on a pro rata basis to the extent necessary in connection with an Asset Sale Offer) the Offer Amount of Notes or portions of Notes properly tendered pursuant to the Offer to Purchase, or if less than the Offer Amount has been tendered, all Notes tendered;

 

  (ii) deposit with the Paying Agent an amount equal to the Offer Amount in respect of all Notes or portions of Notes properly tendered; and

 

  (iii) deliver or cause to be delivered to the Trustee the Notes so accepted together with an Officers’ Certificate stating the aggregate principal amount of Notes or portions of Notes being purchased by the Company and that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 3.09.

 

  (5) The Company, the Depositary or the Paying Agent, as the case may be, shall promptly (but in any event not later than five Business Days after the Purchase Date) deliver to each tendering Holder of Notes properly tendered and accepted by the Company for purchase the Purchase Amount for such Notes, and the Company shall promptly execute and issue a new Note, and the Trustee, upon receipt of an Authentication Order shall authenticate and deliver (or cause to be transferred by book-entry) such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered provided, however, that each such new Note shall be in a principal amount of $1,000 or an integral multiple of $1,000 in excess thereof. Any Note not so accepted shall be promptly mailed or delivered by the Company to the Holder thereof. The Company shall publicly announce the results of the Offer to Purchase on or as soon as practicable after the Purchase Date.

 

  (6) If the Purchase Date is on or after a Regular Record Date and on or before the related Interest Payment Date, any accrued and unpaid interest shall be paid to the Person in whose name a Note is registered at the close of business on such Regular Record Date, and no additional interest shall be payable to Holders who tender Notes pursuant to the Offer to Purchase.

 

  (7) The Company shall comply with the requirements of any securities laws and regulations to the extent those laws and regulations are applicable in connection with the Offer to Purchase. To the extent that the provisions of any securities laws or regulations conflict with Section 4.12 or 4.18, as applicable, this Section 3.09 or other provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under Section 4.12 or 4.18, as applicable, this Section 3.09 or such other provision by virtue of such conflict.

 

  (8) Other than as specifically provided in this Section 3.09, any purchase pursuant to this Section 3.09 shall be made in accordance with the provisions of Section 3.01 through 3.06 hereof.

 

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ARTICLE 4.

COVENANTS

Section   4.01 .     Payment of Notes .

The Company shall pay or cause to be paid the principal of, premium, if any, and interest on, the Notes on the dates and in the manner provided in the Notes. Principal, premium, if any, and interest shall be considered paid on the date due if the Paying Agent, if other than the Company or a Subsidiary thereof, holds as of 11:00 a.m. Eastern Time on the due date money deposited by the Company in immediately available funds and designated for and sufficient to pay all principal, premium, if any, and interest then due. If a payment date is a Legal Holiday at a place of payment, payment may be made at that place on the next succeeding day that is not a Legal Holiday, and no interest shall accrue on such payment for the intervening period.

The Company shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal and premium, if any, from time to time on demand at a rate that is 1% per annum in excess of the rate then in effect; it shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of interest (without regard to any applicable grace periods), from time to time on demand at the same rate to the extent lawful.

In the case of the final interest period, if applicable (from September 15, 2025 to January 15, 2026), interest will be calculated on the basis of the actual number of days elapsed from September 15, 2025 to (but excluding) January 15, 2026 divided by 365. In the case of any other interest period that is shorter than a full semi-annual interest period due to redemption, interest will be calculated on the basis of a 365-day year and the actual number of days elapsed from (and including) the date of the previous interest payment to (but excluding) the interest payment date for such interest period.

For the purposes of the Interest Act (Canada), whenever interest is computed on a basis of a year (the “deemed year”) which contains fewer days than the actual number of days in the calendar year of calculation, such rate of interest shall be expressed as a yearly rate for purposes of the Interest Act (Canada) by multiplying such rate of interest by the actual number of days in the calendar year of calculation and dividing it by the number of days in the deemed year.

Section   4.02.      Maintenance of Office or Agency .

 

  (1) The Company shall maintain an office or agency (which may be an office or drop facility of the Trustee or an affiliate of the Trustee, Registrar or co-registrar) where Notes may be presented or surrendered for registration of transfer or for exchange and where notices and demands to or upon the Company in respect of the Notes and this Indenture may be served. The Company shall give prompt written notice to the Trustee of any change in the location of such office or agency. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices and demands.

 

  (2) The Company may also from time to time designate one or more other offices or agencies where the Notes may be presented or surrendered for any or all such purposes and may from time to time rescind such designations. The Company shall give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency.

 

  (3) The Company hereby designates the Corporate Trust Office of the Trustee, as such office, drop facility or agency of the Company in accordance with Section 2.03 hereof.

 

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Section   4.03 .     Reports .

 

  (1) For so long as the Company is required, pursuant to any of the respective indentures governing any outstanding series of the Existing Notes, to submit reports to the Commission, the Company shall (for so long as any Notes remain outstanding) file (or furnish, as the case may be) with the Commission and furnish to the Holders of the Notes and the Trustee:

 

  (i) within 120 days after the end of each fiscal year, annual reports on the Commission’s Form 20-F or Form 40-F, as applicable, or any successor form; and

 

  (ii) (a) within 45 days after the end of each of the first three fiscal quarters of each fiscal year, reports on the Commission’s Form 10-Q, or any successor form, or (b) within 60 days after the end of each of the first three fiscal quarters of each fiscal year, reports on the Commission’s Form 6-K, or any successor form,

which, in each case, regardless of applicable requirements, shall, at a minimum, contain unaudited interim financial statements and a “Management’s Discussion and Analysis of Financial Condition and Results of Operations”.

Each such report shall be deemed to be delivered to the Holders of the Notes and the Trustee if the Company either files (or furnishes, as the case may be) such report with the Commission through the Commission’s EDGAR database (or successor database thereto), posts such report on its public website or furnishes such report to the Trustee.

 

  (2) If the Company is no longer required under any of the respective indentures governing any outstanding series of the Existing Notes, applicable law or otherwise to file or furnish such reports with the Commission and no longer does so, the Company shall instead furnish to the Holders of the Notes and the Trustee:

 

  (i) within 120 days after the end of each fiscal year, annual audited financial statements; and

 

  (ii) within 60 days after the end of each of the first three fiscal quarters of each fiscal year, unaudited interim financial statements;

in each case together with a “Management’s Discussion and Analysis of Financial Condition and Results of Operations”.

Each such report which shall be deemed to be delivered to the Holders of the Notes and the Trustee if the Company furnishes such reports to the Trustee or posts them on its public website.

 

  (3) For so long as (i) the Notes are outstanding and are “restricted securities” within the meaning of Rule 144(a)(3) under the 1933 Act, and (ii) the Company is neither subject to Section 13 or 15(d) of the Exchange Act, nor exempt from reporting pursuant to Rule 12g3-2(b) under the Exchange Act, to make available to Holders and beneficial owners of the Notes, and to prospective purchasers of such Notes designated by such Holders, upon the request of such Holders, the information required to be delivered pursuant to Rule 144A(d)(4) under the 1933 Act to permit compliance with Rule 144A in connection with resales of the Notes.

 

  (4) If the Company has designated any of its Subsidiaries as Unrestricted Subsidiaries, then the quarterly and annual financial information required by this Section shall include a reasonably detailed presentation, either on the face of the financial statements or in the footnotes thereto, and in “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” of the financial condition and results of operations of the Company and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Company.

 

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Section   4.04 .     Compliance Certificate .

 

  (1) The Company shall deliver to the Trustee, within 120 days after the end of each fiscal year, beginning with the fiscal year ending December 31, 2015, an Officers’ Certificate stating that a review of the activities of the Company and its Subsidiaries during the preceding fiscal year has been made under the supervision of the signing Officers with a view to determining whether the Company and its Subsidiaries have kept, observed, performed and fulfilled their obligations under this Indenture, and further stating, as to each such Officer signing such certificate, that to the best of his or her knowledge the Company and its Subsidiaries have kept, observed, performed and fulfilled each and every covenant contained in this Indenture and is not in default in the performance or observance of any of the terms, provisions and conditions of this Indenture (or, if a Default or Event of Default shall have occurred, describing all such Defaults or Events of Default of which he or she may have knowledge and what action the Company is taking or proposes to take with respect thereto) and that to the best of his or her knowledge no event has occurred and remains in existence by reason of which payments on account of the principal of, premium, if any, or interest on the Notes is prohibited or if such event has occurred, a description of the event and what action the Company is taking or proposes to take with respect thereto.

 

  (2) The Company shall deliver to the Trustee, within 30 days after the occurrence thereof, written notice in the form of an Officers’ Certificate of any Default or Event of Default, its status and what action the Company is taking or proposes to take with respect thereto.

Section 4.05.      Taxes .

The Company shall pay, and shall cause each of its Subsidiaries to pay, prior to delinquency, all material taxes, assessments, and governmental levies, except such as are being contested in good faith and by appropriate proceedings or where the failure to effect such payment is not adverse in any material respect to the Holders.

Section   4.06.      Stay, Extension and Usury Laws .

The Company covenants (to the extent that it may lawfully do so) that it shall not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law wherever enacted, now or at any time hereafter in force, that may affect the covenants or the performance of this Indenture; and the Company (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants that it shall not, by resort to any such law, hinder, delay or impede the execution of any power herein granted to the Trustee, but shall suffer and permit the execution of every such power as though no such law has been enacted.

Section   4.07.      Corporate Existence .

Subject to Article 5 hereof, the Company shall do or cause to be done all things necessary to preserve and keep in full force and effect (i) its corporate existence, and the corporate, partnership or other existence of each Restricted Subsidiary, in accordance with the respective organizational documents (as the same may be amended from time to time) of the Company or any such Restricted Subsidiary and (ii) the rights (charter and statutory), licenses and franchises of the Company and the Restricted Subsidiaries; provided, however , that the Company shall not be required to preserve any such right, license or franchise, or the corporate, partnership or other existence of any Restricted Subsidiary, if the Board of Directors of the Company shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Company and the Restricted Subsidiaries, taken as a whole, and that the loss thereof is not adverse in any material respect to the Holders of the Notes, or that such preservation is not necessary in connection with any transaction not prohibited by this Indenture.

 

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Section   4.08.      Payments for Consent .

The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, pay or cause to be paid any consideration, to or for the benefit of any Holder for or as an inducement to any consent, waiver or amendment of any of the terms or provisions of this Indenture or the Notes unless such consideration is offered to be paid and is paid to all Holders that consent, waive or agree to amend in the time frame set forth in the solicitation documents relating to such consent, waiver or agreement.

Section   4.09.      Incurrence of Indebtedness and Issuance of Preferred Shares

 

  (1) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, Incur, directly or indirectly, any Indebtedness, including Acquired Debt, and the Company shall not issue any Disqualified Stock and shall not permit any of its Restricted Subsidiaries to issue any Preferred Shares; provided, however , that the Company may Incur Indebtedness, including Acquired Debt, or issue Disqualified Stock, and the Subsidiary Guarantors may Incur Indebtedness, including Acquired Debt, or issue Preferred Shares if the Company’s Debt to Cash Flow Ratio at the time of Incurrence of such Indebtedness or the issuance of such Disqualified Stock or Preferred Shares, after giving pro forma effect to such Incurrence or issuance as of such date and to the use of proceeds therefrom, taking into account any substantially concurrent transactions related to such Incurrence, as if the same had occurred at the beginning of the most recently ended full fiscal quarter of the Company for which internal financial statements are available, would have been no greater than 5.5 to 1.0.

 

  (2) Paragraph (1) of this Section 4.09 shall not prohibit the Incurrence of any of the following items of Indebtedness or issuances of Preferred Shares or Disqualified Stock (each such item being referred to herein as “ Permitted Debt ”):

 

  (i) the Incurrence by the Company or a Subsidiary Guarantor of Indebtedness and letters of credit under Credit Facilities in an aggregate principal amount at any one time outstanding under this clause (i) (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Company and the Restricted Subsidiaries thereunder) not to exceed an aggregate of Cdn$1.5 billion, less the aggregate amount of all Net Proceeds of Asset Sales applied by the Company or any Restricted Subsidiaries subsequent to October 8, 2003 to permanently repay Indebtedness under a Credit Facility (and, in the case of any revolving credit Indebtedness, to effect a corresponding commitment reduction thereunder) pursuant to the provisions of Section 4.12 hereof;

 

  (ii) the Incurrence by the Company and the Restricted Subsidiaries of the Existing Indebtedness;

 

  (iii) the Incurrence by (a) the Company of Indebtedness represented by the Initial Notes, and (b) the Subsidiary Guarantors of Indebtedness represented by the Subsidiary Guarantees relating to the Initial Notes;

 

  (iv) the Incurrence by the Company or a Subsidiary Guarantor of Indebtedness represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case, Incurred for the purpose of financing all or any part of the purchase price or cost of construction or improvement of property, plant or equipment used in the business of the Company or such Subsidiary Guarantor, in an aggregate principal amount, including all Permitted Refinancing Indebtedness Incurred to refund, refinance or replace any Indebtedness Incurred pursuant to this clause (iv), not to exceed the greater of (i) US$200.0 million and (ii) 7.5% of the Company’s Consolidated Net Tangible Assets at any time outstanding;

 

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  (v) the Incurrence by the Company or any Subsidiary Guarantor of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to refund, refinance or replace Indebtedness, other than intercompany Indebtedness, that was permitted by this Indenture to be Incurred under paragraph (1) or clauses (2)(ii), (2)(iii) or (2)(iv) of this Section 4.09;

 

  (vi) the Incurrence by the Company or any Restricted Subsidiary of intercompany Indebtedness between or among the Company and any Restricted Subsidiary; provided, however , that:

 

  (A) if the Company or any Subsidiary Guarantor is the obligor on such Indebtedness, such Indebtedness must be unsecured and expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Notes, in the case of the Company, or the Subsidiary Guarantee, in the case of a Subsidiary Guarantor, and

 

  (B) (a) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Company or a Restricted Subsidiary and (b) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a Restricted Subsidiary shall be deemed, in each case, to constitute an Incurrence of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (vi);

 

  (vii) the issuance by the Company of Disqualified Stock or by any Restricted Subsidiary of Preferred Shares solely to or among the Company and any Restricted Subsidiaries; provided, however , that (a) any subsequent issuance or transfer of Equity Interests that results in any such Disqualified Stock or Preferred Shares being held by a Person other than the Company or a Restricted Subsidiary and (b) any sale or other transfer of any such Disqualified Stock or Preferred Shares to a Person that is not either the Company or a Restricted Subsidiary shall be deemed, in each case, to constitute an issuance of such Disqualified Stock by the Company or Preferred Shares by a Restricted Subsidiary, as the case may be, that was not permitted by this clause (vii);

 

  (viii) the Incurrence by the Company or any Restricted Subsidiary of Hedging Obligations that are Incurred in the ordinary course of business of the Company or such Restricted Subsidiary and not for speculative purposes; provided, however , that, in the case of:

 

  (A) any Interest Rate Agreement, the notional principal amount of such Hedging Obligation does not exceed the principal amount of the Indebtedness to which such Hedging Obligation relates; and

 

  (B) any Currency Exchange Protection Agreement, such Hedging Obligation does not increase the principal amount of Indebtedness of the Company or such Restricted Subsidiary outstanding other than as a result of fluctuations in foreign currency exchange rates or by reason of fees, indemnities and compensation payable thereunder;

 

  (ix) the guarantee by the Company or a Subsidiary Guarantor of Indebtedness of the Company or a Subsidiary Guarantor that was permitted to be Incurred by another provision of this Section 4.09;

 

  (x) the Incurrence by the Company or any Subsidiary Guarantor of Indebtedness in an aggregate principal amount at any time outstanding, including all Permitted Refinancing Indebtedness Incurred to refund, refinance or replace any Indebtedness Incurred pursuant to this clause (x), not to exceed the greater of (i) US$150.0 million and (ii) 5.0% of the Company’s Consolidated Net Tangible Assets;

 

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  (xi) the Incurrence by the Company or any Restricted Subsidiary of Indebtedness in an aggregate principal amount at any time outstanding, including all Permitted Refinancing Indebtedness Incurred to refund, refinance or replace any Indebtedness Incurred pursuant to this clause (xi), not to exceed US$150.0 million, less the aggregate amount of all Net Proceeds of Asset Sales applied by the Company or any Restricted Subsidiary subsequent to the Issue Date to permanently repay such Indebtedness (and, in the case of any revolving credit Indebtedness, to effect a corresponding commitment reduction thereunder) pursuant to the provisions of Section 4.12 hereof;

 

  (xii) the issuance of Preferred Shares by the Company’s Unrestricted Subsidiaries or the Incurrence by the Company’s Unrestricted Subsidiaries of Non-Recourse Debt; provided, however , that if any such Indebtedness ceases to be Non-Recourse Debt of an Unrestricted Subsidiary, that event shall be deemed to constitute an Incurrence of Indebtedness by a Restricted Subsidiary that was not permitted by this clause (xii);

 

  (xiii) the Incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness arising from agreements of the Company or any of its Restricted Subsidiaries providing for indemnification, adjustment of purchase price, earn out obligations or other similar obligations, in each case Incurred or assumed in connection with a transaction permitted by this Indenture;

 

  (xiv) the issuance of Indebtedness or Preferred Shares or Disqualified Stock in connection with a Tax Benefit Transaction; and

 

  (xv) Non-Recourse Accounts Receivable Entity Indebtedness Incurred by any Accounts Receivable Entity in a Qualified Receivables Transaction.

 

  (3) The accrual of interest, the accretion or amortization of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms, and the payment of dividends on Disqualified Stock or Preferred Shares in the form of additional shares of the same class of Disqualified Stock or Preferred Shares (to the extent provided for when the Indebtedness, Disqualified Stock or Preferred Shares on which such interest or dividend is paid was originally issued) shall not be deemed to be an Incurrence of Indebtedness or an issuance of Disqualified Stock or Preferred Shares for purposes of this Section 4.09; provided that in each case the amount thereof is for all other purposes included in the Consolidated Interest Expense and Indebtedness of the Company or its Restricted Subsidiary as accrued.

 

  (4) Neither the Company nor any Subsidiary Guarantor shall Incur any Indebtedness, including Permitted Debt, that is contractually subordinated in right of payment to any other Indebtedness of the Company or such Subsidiary Guarantor, as applicable, unless such Indebtedness is also contractually subordinated in right of payment to the Notes or the Subsidiary Guarantee, as applicable, on substantially identical terms; provided, however , that no Indebtedness of the Company or a Subsidiary Guarantor shall be deemed to be contractually subordinated in right of payment to any other Indebtedness of the Company or such Subsidiary Guarantor, as applicable, solely by virtue of collateral or lack thereof.

 

  (5) Notwithstanding any other provision of this Section 4.09, the maximum amount of Indebtedness that may be Incurred pursuant to this Section 4.09 will not be deemed to be exceeded with respect to any outstanding Indebtedness due solely to the result of fluctuations in the exchange rate of currencies.

 

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  (6) For purposes of determining compliance with this Section 4.09, in the event that an item of proposed Indebtedness meets the criteria of more than one of the categories of Permitted Debt described in clauses (2)(i) through (xv) above, or is entitled to be Incurred pursuant to paragraph (1) of this Section 4.09, the Company shall be permitted to classify such item of Indebtedness on the date of its Incurrence or later reclassify all or a portion of such item of Indebtedness, in any manner that complies with this Section. Indebtedness under Credit Facilities outstanding on the date on which Notes are first issued and authenticated under this Indenture shall be deemed to have been Incurred on such date in reliance on the exception provided by clause (i) of paragraph (2) of this Section 4.09.

Section   4.10 .      Restricted Payments .

(a) The Company shall not make, and shall not permit any Restricted Subsidiary to make, directly or indirectly, any Restricted Payment, unless, at the time of and after giving effect to such Restricted Payment,

 

  (1) no Default or Event of Default has occurred and is continuing or would occur as a consequence of such Restricted Payment; and

 

  (2) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable fiscal quarter, have been permitted to Incur at least US$1.00 of additional Indebtedness, other than Permitted Debt, pursuant to the Debt to Cash Flow Ratio test set forth in Section 4.09(1) hereof; and

 

  (3) such Restricted Payment, together with the aggregate amount of all other Restricted Payments declared or made by the Company and its Restricted Subsidiaries after October 8, 2003, excluding Restricted Payments made pursuant to clauses (2), (3), (4), (6), (7), (8), (9) and (10) of paragraph (b) below, shall not exceed, at the date of determination, the sum, without duplication, of:

 

  (i) an amount equal to the Company’s Consolidated Cash Flow from October 1, 2003 to the end of the Company’s most recently ended full fiscal quarter for which internal financial statements are available, taken as a single accounting period, less 1.5 times the Company’s Consolidated Interest Expense from the October 1, 2003 to the end of the Company’s most recently ended full fiscal quarter for which internal financial statements are available, taken as a single accounting period (or, if such amount for such period is a deficit, minus 100% of such deficit); plus

 

  (ii) an amount equal to 100% of Capital Stock Sale Proceeds, less any such Capital Stock Sale Proceeds used in connection with:

 

  (A) an Investment made pursuant to clause (6) of the definition of “Permitted Investments;” or

 

  (B) an Incurrence of Indebtedness pursuant to Section 4.09(2)(viii) hereof; plus

 

  (iii) to the extent that any Restricted Investment that was made after October 8, 2003 is sold for cash or otherwise liquidated or repaid for cash (except to the extent any such payment or proceeds are included in the calculation of Consolidated Cash Flow), the lesser of (i) the cash return of capital with respect to such Restricted Investment, less the cost of disposition, if any, and (ii) the initial amount of such Restricted Investment; plus

 

  (iv)

to the extent that the Board of Directors of the Company designates any Unrestricted Subsidiary that was designated as such after October 8, 2003 as a Restricted Subsidiary, the lesser of (i) the aggregate Fair Market Value of all Investments owned by the Company and the Restricted Subsidiaries in such Subsidiary at the time such Subsidiary

 

54


  was designated as an Unrestricted Subsidiary and (ii) the then aggregate Fair Market Value of all Investments owned by the Company and the Restricted Subsidiaries in such Unrestricted Subsidiary; plus

 

  (v) 100% of the net reduction in any guarantee constituting a Restricted Investment that was made after September 15, 2015 (except to the extent that such reduction results from any payment made by the Company or any Restricted Subsidiary pursuant to such guarantee), in each case not to exceed the original aggregate amount of such Restricted Investment.

 

  (b) The provisions of paragraph (a) above shall not prohibit:

 

  (1) so long as no Default has occurred and is continuing or would be caused thereby, the payment of any dividend within 60 days after the date the dividend is declared, if at that date of declaration such payment would have complied with the provisions of this Indenture; provided, however , that such dividend shall be included in the calculation of the amount of Restricted Payments;

 

  (2) so long as no Default has occurred and is continuing or would be caused thereby, the redemption, repurchase, retirement, defeasance or other acquisition of any Subordinated Indebtedness of the Company or any Subsidiary Guarantor or of any Equity Interests of the Company in exchange for, or out of the net cash proceeds of the substantially concurrent sale, other than to a Subsidiary of the Company or an employee stock ownership plan or to a trust established by the Company or any Subsidiary of the Company for the benefit of its employees, of, Equity Interests of the Company (other than Disqualified Stock or Back-to-Back Securities); provided that the amount of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement, defeasance or other acquisition shall be excluded from clause (a)(3)(ii) above;

 

  (3) so long as no Default has occurred and is continuing or would be caused thereby, the defeasance, redemption, repurchase or other acquisition of Subordinated Indebtedness of the Company or any Subsidiary Guarantor with the net cash proceeds from an Incurrence of Permitted Refinancing Indebtedness;

 

  (4) any payment by the Company or a Restricted Subsidiary to any one of the other of them;

 

  (5) so long as no Default has occurred and is continuing or would be caused thereby, the repurchase, redemption or other acquisition or retirement for value by the Company of any Equity Interests of the Company held by any member of the management of the Company or any of its Subsidiaries pursuant to any management equity subscription agreement or stock option agreement in effect as of October 8, 2003; provided, however, that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed US$5.0 million in any twelve-month period;

 

  (6) payments of any kind made in connection with or in respect of Back-to-Back Securities; provided, however, that to the extent such payments shall be made to Affiliates of the Company (other than its Subsidiaries), all corresponding payments required to be paid by such Affiliates pursuant to the related Back-to-Back Securities shall be received, immediately prior to or concurrently with any such payments, by all applicable Videotron Entities;

 

  (7) so long as no Default has occurred and is continuing or would be caused thereby, any Tax Benefit Transaction;

 

  (8) so long as no Default has occurred and is continuing or would be caused thereby, the payment of any Management Fees or other similar expenses by the Company to its direct or indirect parent company for bona fide services (including reimbursement for expenses Incurred in connection with, or allocation of corporate expenses in relation to, providing such services) provided to, and directly related to the operations of, the Company and the Restricted Subsidiaries, in an aggregate amount not to exceed 1.5% of Consolidated Revenues in any twelve-month period;

 

55


  (9) so long as no Default has occurred and is continuing or would be caused thereby, other Restricted Payments since October 8, 2003 in an aggregate amount not to exceed US$100.0 million; and

 

  (10) so long as no Default has occurred and is continuing or would be caused thereby and the Debt to Cash Flow Ratio is no greater than 5.0 to 1 (calculated on a pro forma basis as if such payment, including any related financing transaction, had occurred at the beginning of the applicable fiscal quarter), the payment of dividends or distributions to Quebecor Media or the repayment of the QMI Subordinated Loan, in an aggregate amount not to exceed Cdn$200.0 million since October 8, 2003.

(c) The amount of any Restricted Payment, other than those effected in cash, shall be the Fair Market Value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued to or by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment.

(d) For purposes of this Section 4.10, if (i) any Videotron Entity ceases to be the obligor under or issuer of any Back-to-Back Securities and a Person other than a Videotron Entity becomes the obligor thereunder (or the issuer of any Back-to-Back Preferred Shares) or (ii) any Restricted Subsidiary that is an obligor under or issuer of any Back-to-Back Securities ceases to be a Restricted Subsidiary other than by consolidation or merger with the Company or another Restricted Subsidiary, then the Company or such Restricted Subsidiary shall be deemed to have made a Restricted Payment in an amount equal to the accreted value of such Back-to-Back Debt (or the subscription price of any Back-to-Back Preferred Shares) at the time of the assumption thereof by such other Person or at the time such Restricted Subsidiary ceases to be a Restricted Subsidiary.

Section   4.11.      Liens .

The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create, Incur, assume or suffer to exist or become effective any Lien of any kind on any asset owned on October 8, 2003 or thereafter acquired, except Permitted Liens, unless the Company or such Restricted Subsidiary has made or will make effective provision to secure the Notes and any applicable Subsidiary Guarantees equally and ratably with the obligations of the Company or such Restricted Subsidiary secured by such Lien for so long as such obligations are secured by such Lien.

Section   4.12.      Asset Sales .

(a) The Company shall not, and shall not permit any Restricted Subsidiary to, consummate an Asset Sale unless:

 

  (1) the Company, or the Restricted Subsidiary, as the case may be, receives consideration at the time of the Asset Sale at least equal to the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of; and

 

  (2) at least 75% of the consideration received in such Asset Sale by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents. For purposes of this clause (3), each of the following shall be deemed to be cash:

 

  (i) any Indebtedness or other liabilities, as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and Indebtedness that are by their terms pari passu with the Notes or any Subsidiary Guarantee and liabilities to the extent owed to the Company or any Affiliate of the Company), that are assumed by the transferee of any such assets pursuant to a written agreement that releases the Company or such Restricted Subsidiary from further liability with respect to such Indebtedness or liabilities; and

 

56


  (ii) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted within 180 days of the applicable Asset Sale by the Company or such Restricted Subsidiary into cash, to the extent of the cash received in such conversion.

(b) Within 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company may apply those Net Proceeds at its option:

 

  (1) to permanently repay or reduce (i) Indebtedness, other than Subordinated Indebtedness, of the Company or a Subsidiary Guarantor secured by such assets, (ii) Indebtedness of the Company or a Subsidiary Guarantor under Credit Facilities or other Indebtedness of the Company that is by its terms pari passu with the Notes, or (iii) Indebtedness of a Restricted Subsidiary that is not a Subsidiary Guarantor, and, in each case, if the Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto;

 

  (2) to acquire, or enter into a binding agreement to acquire, all or substantially all of the assets (other than cash, Cash Equivalents and securities) of any Person engaged in a Permitted Business; provided, however, that any such commitment shall be subject only to customary conditions (other than financing), and such acquisition shall be consummated no later than 180 days after the end of such 360-day period;

 

  (3) to acquire, or enter into a binding agreement to acquire, Voting Stock of a Person engaged in a Permitted Business from a Person that is not an Affiliate of the Company; provided, however, that such commitment shall be subject only to customary conditions (other than financing) and such acquisition shall be consummated no later than 180 days after the end of such 360-day period; and provided, further, however , that (a) after giving effect thereto, the Person so acquired becomes a Restricted Subsidiary and (b) such acquisition is otherwise made in accordance with this Indenture, including, without limitation, Section 4.10 hereof; or

 

  (4) to acquire, or enter into a binding agreement to acquire, other long-term assets (other than securities) that are used or useful in a Permitted Business; provided, however, that such commitment shall be subject only to customary conditions (other than financing) and such acquisition shall be consummated no later than 180 days after the end of such 360-day period.

Pending the final application of any Net Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture.

(c) Any Net Proceeds from Asset Sales that are not applied, invested or segregated from the general funds of the Company for investment in identified assets pursuant to a binding agreement, in each case as provided in paragraph (c) above shall constitute Excess Proceeds; provided, however, that the amount of any Net Proceeds that ceases to be so segregated as contemplated in paragraph (c) above shall also constitute “Excess Proceeds” at the time any such Net Proceeds cease to be so segregated; provided further, however, that the amount of any Net Proceeds that continues to be segregated for investment and that is not actually reinvested within twenty-four months from the date of the receipt of such Net Proceeds shall also constitute “Excess Proceeds.”

(d) When the aggregate amount of Excess Proceeds exceeds US$100.0 million, the Company shall make an offer (an “ Asset Sale Offer ”) to all Holders of Notes and all holders of other Indebtedness that is pari passu in right of payment with the Notes or any Subsidiary Guarantee containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets, to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds in accordance with the procedures set forth in Section 3.09 hereof. The offer price in any Asset Sale Offer shall be equal to 100% of principal amount of the Notes and such other pari passu Indebtedness, plus accrued and unpaid interest to (but excluding) the date of purchase, and shall be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer and all Holders of Notes have been given the opportunity to tender their Notes for purchase in accordance with such Asset Sale Offer and this Indenture, the Company may use such Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the

 

57


aggregate principal amount of Notes and such other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Notes and such other pari passu Indebtedness shall be purchased on a pro rata basis (subject to Notes being in denominations of $1,000 or integral multiples of $1,000 in excess thereof) based on the principal amount of Notes and such other pari passu Indebtedness tendered. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero.

The Company shall comply with the requirements of applicable securities laws and regulations to the extent such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the Asset Sale provisions of this Indenture by virtue of such conflict.

Section   4.13.      Dividend and Other Payment Restrictions Affecting Subsidiaries .

(a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:

 

  (1) pay dividends or make any other distributions on its Equity Interests to the Company or any other Restricted Subsidiary, or with respect to any other interest or participation in, or measured by, its profits, or pay any liabilities owed to the Company or any other Restricted Subsidiary;

 

  (2) make loans or advances, or guarantee any such loans or advances, to the Company or any other Restricted Subsidiary; or

 

  (3) transfer any of its properties or assets to the Company or any other Restricted Subsidiary.

(b) The restrictions set forth in paragraph (a) above shall not apply to encumbrances or restrictions existing under or by reason of:

 

  (1) agreements governing Existing Indebtedness and Credit Facilities as in effect on October 8, 2003 and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof; provided, however , that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacement or refinancings are no more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in such Existing Indebtedness and Credit Facilities, as in effect on October 8, 2003;

 

  (2) this Indenture and the Notes;

 

  (3) applicable law or any applicable rule, regulation or order;

 

  (4) any instrument governing Indebtedness or Capital Stock of a Person acquired by the Company or any Restricted Subsidiary as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was Incurred or issued in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired; provided, however , that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be Incurred at the time of such acquisition;

 

  (5) customary non-assignment provisions in leases entered into in the ordinary course of business and consistent with past practices;

 

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  (6) purchase money obligations for property acquired in the ordinary course of business that impose restrictions on the property so acquired of the nature described in clause (3) of paragraph (a) above;

 

  (7) any agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by such Restricted Subsidiary pending its sale or other disposition;

 

  (8) Permitted Refinancing Indebtedness; provided , however , that any restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are no more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced; provided, further, however , that if such Permitted Refinancing Indebtedness could not be entered into on commercially reasonable terms without the inclusion of dividend and other payment restrictions that are materially more restrictive than those contained in the existing Indebtedness (as determined in good faith by the Board of Directors of the Company), the Company or its Restricted Subsidiary may enter into such Permitted Refinancing Indebtedness, provided , that the dividend and other payment restrictions contained therein will not materially impair the Company’s ability to make payments on the Notes (as determined in good faith by the Board of Directors of the Company);

 

  (9) Liens securing Indebtedness that is permitted to be secured without also securing the Notes or the applicable Subsidiary Guarantee pursuant to Section 4.11 hereof that limit the right of the debtor to dispose of the assets subject to any such Lien;

 

  (10) provisions with respect to the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, stock sale agreements and other similar agreements entered into in the ordinary course of business;

 

  (11) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;

 

  (12) any Indebtedness or any agreement pursuant to which such Indebtedness was issued if (a) the encumbrance or restriction applies only upon a payment or financial covenant default or event of default contained in such Indebtedness or agreement, (b) such encumbrance or restriction is not materially more disadvantageous to the Holders than is customary in comparable financings (as determined in good faith by the Board of Directors of the Company) and (c) such encumbrance or restriction will not materially impair the Company’s ability to make payments on the Notes (as determined in good faith by the Board of Directors of the Company); and

 

  (13) Non-Recourse Accounts Receivable Entity Indebtedness or other contractual requirements of an Accounts Receivable Entity in connection with a Qualified Receivables Transaction; provided that such restrictions apply only to such Accounts Receivables Entity or the receivables which are subject to the Qualified Receivables Transaction.

Section   4.14.      Transactions with Affiliates .

(a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, make any payment to, or sell, lease, transfer, exchange or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction or series of transactions, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate, officer or director of the Company (each, an “ Affiliate Transaction ”) unless:

 

  (1) such Affiliate Transaction is on terms that are no less favorable to the Company or the relevant Restricted Subsidiary than those that would have been obtained in a comparable arm’s length transaction by the Company or such Restricted Subsidiary with an unrelated Person; and

 

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  (2) with respect to any Affiliate Transaction or series of related Affiliate Transactions with a fair market value in excess of US$50.0 million, such Affiliate Transaction or series of related Affiliate Transactions has been approved by a majority of the disinterested members of the Board of Directors of the Company.

(b) The following items shall be deemed not to constitute Affiliate Transactions and, therefore, shall not be subject to the provisions of paragraph (a) above:

 

  (1) any employment agreement entered into by the Company or any Restricted Subsidiary in the ordinary course of business and consistent with the past practice of the Company or such Restricted Subsidiary;

 

  (2) transactions between or among the Company and/or the Restricted Subsidiaries;

 

  (3) transactions with a Person that is an Affiliate of the Company solely because the Company owns an Equity Interest in such Person, provided such transactions are on terms that are no less favorable to the Company or the relevant Restricted Subsidiary than those that would have been obtained in a comparable arm’s length transaction by the Company or such Restricted Subsidiary with an unrelated Person;

 

  (4) payment of reasonable directors fees to Persons who are not otherwise Affiliates of the Company;

 

  (5) sales of Equity Interests of the Company, other than Disqualified Stock or Back-to-Back Securities, to Affiliates of the Company;

 

  (6) any agreement or arrangement as in effect on October 8, 2003 or any amendment thereto or any transaction contemplated thereby, including pursuant to any amendment thereto, in any replacement agreement or arrangement thereto so long as any such amendment or replacement agreement or arrangement is not more disadvantageous to the Company or the Restricted Subsidiaries, as the case may be, in any material respect than the original agreement as in effect on October 8, 2003;

 

  (7) transactions that are permitted by the provisions of Section 4.10 hereof;

 

  (8) Permitted Investments;

 

  (9) any Tax Benefit Transaction; and

 

  (10) transactions effected as part of a Qualified Receivables Transaction.

Section 4.15.

[Reserved]

Section 4.16.

[Reserved]

Section   4.17.      Designation of Restricted and Unrestricted Subsidiaries .

(a) The Board of Directors of the Company may designate any Subsidiary to be an Unrestricted Subsidiary if such Subsidiary:

 

  (1) has no Indebtedness other than Non-Recourse Debt;

 

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  (2) does not own any Equity Interest of any Restricted Subsidiary, or hold any Liens on any property of the Company or any of its Restricted Subsidiaries;

 

  (3) is not party to any agreement, contract, arrangement or understanding with the Company or any Restricted Subsidiary unless the terms of any such agreement, contract, arrangement or understanding are no less favorable to the Company or such Restricted Subsidiary than those that might be obtained at the time from Persons who are not Affiliates of the Company;

 

  (4) is a Person with respect to which neither the Company nor any Restricted Subsidiary has any direct or indirect obligation (a) to subscribe for additional Equity Interests or (b) to maintain or preserve such Person’s financial condition or to cause such Person to achieve any specified levels of operating results;

 

  (5) except in the case of a Subsidiary Guarantor that is designated as an Unrestricted Subsidiary in accordance with this Indenture, has not guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of the Company or any Restricted Subsidiary;

 

  (6) has at least one director on its Board of Directors that is not a director or executive officer of the Company or any Restricted Subsidiary and has at least one executive officer that is not a director or executive officer of the Company or any Restricted Subsidiary; and

 

  (7) such designation would not cause a Default or Event of Default.

(b) Any designation of a Subsidiary of the Company as an Unrestricted Subsidiary shall be evidenced to the Trustee by filing with the Trustee a certified copy of the Board Resolution giving effect to such designation and an Officers’ Certificate certifying that such designation complied with the provisions of paragraph (a) above and was permitted by the provisions of Section 4.10 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the requirements of the provisions of paragraph (a) above, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Preferred Shares of such Subsidiary shall be deemed to be issued and any Indebtedness of such Subsidiary shall be deemed to be Incurred by a Restricted Subsidiary as of such date and, if such Preferred Shares are not permitted to be issued or such Indebtedness is not permitted to be Incurred as of such date under the provisions of Section 4.09 hereof, the Company shall be in default of such Section.

(c) If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by the Company and the Restricted Subsidiaries in the Subsidiary so designated shall be deemed to be an Investment made as of the time of such designation and shall either reduce the amount available for Restricted Payments under Section 4.10(a) hereof or reduce the amount available for future Investments under one or more clauses of the definition of Permitted Investments, as the Company shall determine. Such designation shall be permitted only if such Investment would be permitted at such time and if such Restricted Subsidiary otherwise meets the requirements of the provisions of paragraph (a) above. Upon designation of a Restricted Subsidiary as an Unrestricted Subsidiary in compliance with this Section 4.17, such Subsidiary shall be released from any Subsidiary Guarantee previously made by such Subsidiary in accordance with the provisions of Section 10.05 hereof.

(d) The Board of Directors of the Company may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided, however, that (i) such designation shall be deemed to be an Incurrence of Indebtedness by a Restricted Subsidiary of any outstanding Indebtedness of such Unrestricted Subsidiary and such designation shall only be permitted if such Indebtedness is permitted under the provisions of Section 4.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the most recently ended full fiscal quarter for which internal financial statements are available; (ii) all outstanding Investments owned by such Unrestricted Subsidiary shall be deemed to be made as of the time of such designation and such Investments shall only be permitted if such Investments would be permitted under the provisions of Section 4.10 hereof; (iii) all Liens upon property or assets of such Unrestricted Subsidiary existing at the time of such designation would be permitted under the provisions of Section 4.11 hereof; and (iv) no Default or Event of Default would be in existence immediately following such designation.

 

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Section   4.18.      Repurchase at the Option of Holders Upon a Change of Control Triggering Event .

 

  (1) Within 30 days following any Change of Control Triggering Event, the Company shall give notice to the Trustee and each Holder describing the transaction or transactions that constitute the Change of Control Triggering Event and shall make an offer (the “ Change of Control Offer ”) pursuant to the procedures set forth in Section 3.09 hereof. Each Holder shall have the right to accept such offer and require the Company to repurchase all or any part (equal to $1,000 or an integral multiple of $1,000 in excess thereof) of such Holder’s Notes pursuant to the Change of Control Offer at a purchase price, in cash (the “ Change of Control Amount ”), equal to 101% of the aggregate principal amount of Notes repurchased, plus accrued and unpaid interest on the Notes repurchased to (but excluding) the purchase date.

 

  (2) The Company shall not be required to make a Change of Control Offer upon a Change of Control Triggering Event if a third party makes a Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Company and purchases all Notes or portions of Notes properly tendered and not withdrawn under the Change of Control Offer.

Section   4.19.      Future Guarantors

The Company shall cause each Person that becomes a Wholly Owned Restricted Subsidiary of the Company following the Issue Date to become a Subsidiary Guarantor and to execute a supplemental indenture and deliver an Opinion of Counsel to the Trustee. In addition, the Company shall not permit any of its Restricted Subsidiaries, directly or indirectly, to guarantee any other Indebtedness (including any Back-to-Back Debt) of the Company or any of its Restricted Subsidiaries, unless such Restricted Subsidiary is a Subsidiary Guarantor or simultaneously executes and delivers a supplemental indenture providing for a Subsidiary Guarantee of the payment of the Notes by such Restricted Subsidiary, which Subsidiary Guarantee shall be senior to or pari passu with such Subsidiary’s guarantee of such other Indebtedness. The form of the Subsidiary Guarantee is attached hereto as Exhibit E.

Section   4.20.      Additional Amounts .

 

  (1) All payments made by or on behalf of the Company or the Subsidiary Guarantors on or with respect to the Notes pursuant to this Indenture shall be made without withholding or deduction for any Taxes imposed by any Canadian Taxing Authority, unless required by law or the interpretation or administration thereof by the relevant Canadian Taxing Authority. If the Company or any Subsidiary Guarantor (or any other payor) is required to withhold or deduct any amount on account of Taxes imposed by any Canadian Taxing Authority from any payment made under or with respect to any Notes that are outstanding on the date of the required payment, it shall:

 

  (i) make such withholding or deduction;

 

  (ii) remit the full amount deducted or withheld to the relevant government authority in accordance with applicable law;

 

  (iii) pay the additional amounts (“ Additional Amounts ”) as may be necessary so that the net amount received by each holder (including Additional Amounts) after such withholding or deduction will not be less than the amount the holder would have received if such Taxes had not been withheld or deducted;

 

  (iv) furnish to the Holders, within 30 days after the date the payment of any Taxes is due, certified copies of tax receipts evidencing such payment by the Company or such Subsidiary Guarantor;

 

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  (v) indemnify and hold harmless each Holder (other than an Excluded Holder, as defined in paragraph (2) below) for the amount of (a) any Taxes paid by each such Holder as a result of payments made on or with respect to the Notes, (b) any liability (including penalties, interest and expenses) arising from or with respect to such payments and (c) any Taxes imposed with respect to any reimbursement under the foregoing clauses (a) or (b), but excluding any such Taxes that are in the nature of Taxes on net income, taxes on capital, franchise taxes, net worth taxes and similar taxes; and

 

  (vi) at least 30 days prior to each date on which any payment under or with respect to the Notes is due and payable, if the Company or any Subsidiary Guarantor becomes obligated to pay Additional Amounts with respect to such payment, deliver to the Trustee an Officers’ Certificate stating the amounts so payable and such other information necessary to enable the Trustee to pay such Additional Amounts to Holders on the payment date.

 

  (2) Notwithstanding the provisions of paragraph (1) above, no Additional Amounts shall be payable to a person (an “ Excluded Holder ”) in respect of a payment made to such person under or with respect to a Note:

 

  (i) if such person is subject to such Taxes by reason of its being connected with Canada or any province or territory thereof otherwise than by the mere acquisition, holding or disposition of Notes or the receipt of payments thereunder;

 

  (ii) if such person waives its right to receive Additional Amounts;

 

  (iii) if the Company or such Subsidiary Guarantor does not deal at arm’s length, within the meaning of the Income Tax Act (Canada), with such person at the time of such payment;

 

  (iv) if the Company or such Subsidiary Guarantor does not deal at arm’s length, within the meaning of the Income Tax Act (Canada), with another person to whom the Company or such Subsidiary Guarantor has an obligation to pay an amount in respect of the Note; or

 

  (v) to the extent that the Taxes giving rise to such Additional Amounts would not have been imposed but for such person being, or not dealing at arm’s-length (within the meaning of the Income Tax Act (Canada)) with, a “specified shareholder” of the Company for purposes of the thin capitalization rules in the Income Tax Act (Canada).

Any reference, in any context in this Indenture, to the payment of principal, premium, if any, redemption price, Change of Control Amount, offer price and interest or any other amount payable under or with respect to any Note, shall be deemed to include the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable.

The obligations described under this Section 4.20 will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor Person to the Company or any Subsidiary Guarantor, as applicable, is organized or any political subdivision or taxing authority or agency thereof or therein.

It is understood for purposes of this Section 4.20 that the determination of the amount of Additional Amounts shall be made at the beneficial owner level.

Section   4.21.      Business Activities .

The Company shall not, and shall not permit any Restricted Subsidiary to, engage in any business other than the Permitted Businesses, except to such extent as would not be material to the Company and its Restricted Subsidiaries taken as a whole.

 

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Section   4.22.      Covenant Termination .

Notwithstanding anything to the contrary set forth in this Indenture, if, on any date following the Issue Date, (i) the Notes reach Investment Grade Status and (ii) no Default has occurred and is continuing under this Indenture, then, beginning on that date and continuing at all times thereafter regardless of any subsequent changes in the ratings of the Notes, the Company will be under no obligation to comply with the terms and provisions of Section 4.09, Section 4.10, Section 4.12, Section 4.13, Section 4.14, Section 4.17(d)(i), Section 4.21 and Sections 5.01(1)(iv) and 5.01(2)(iv), and such covenants, terms and provisions shall cease to apply to the Notes.

ARTICLE 5.

SUCCESSORS

Section   5.01.      Merger, Consolidation and Sale of Assets of the Company and Subsidiary Guarantors .

 

  (1) The Company may not directly or indirectly, (i) consolidate, merge or amalgamate with or into another Person, whether or not the Company is the surviving corporation, or (ii) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of the Company and the Restricted Subsidiaries, taken as a whole, in one or more related transactions, to another Person, unless, in either case,

 

  (i) either (a) the Company is the surviving corporation, or (b) the Person formed by or surviving any such consolidation, merger or amalgamation (if other than the Company) or to which such sale, assignment, transfer, conveyance or other disposition shall have been made (the “ Surviving Company ”) is a corporation organized or existing under the laws of the United States, any state of the United States, the District of Columbia, Canada or any province or territory of Canada;

 

  (ii) the Surviving Company expressly assumes all the obligations of the Company under the Notes and this Indenture pursuant to agreements reasonably satisfactory to the Trustee;

 

  (iii) immediately after giving effect to such transaction no Default or Event of Default exists; and

 

  (iv) the Company or the Surviving Company shall, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable fiscal quarter, (a) be permitted to Incur at least US$1.00 of additional Indebtedness pursuant to the Debt to Cash Flow Ratio test set forth in Section 4.09(1) hereof, or (b) have a Debt to Cash Flow Ratio equal to or less than the Company’s Debt to Cash Flow Ratio immediately prior to such transaction.

 

  (2) Unless in connection with a disposition by the Company or a Subsidiary Guarantor of its entire ownership interest in a Subsidiary Guarantor or all or substantially all the assets of a Subsidiary Guarantor permitted by, and in accordance with the applicable provisions of, this Indenture (including, without limitation, the provisions of Section 4.12 hereof), the Company shall cause each Subsidiary Guarantor not to directly or indirectly, (i) consolidate, merge or amalgamate with or into another Person, whether or not such Subsidiary Guarantor is the surviving corporation, or (ii) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of such Subsidiary Guarantor, in one or more related transactions, to another Person, unless, in either case,

 

  (i)

either (a) such Subsidiary Guarantor is the surviving corporation, or (b) the Person formed by or surviving any such consolidation, merger or amalgamation (if other than such Subsidiary Guarantor) or to which such sale, assignment, transfer, conveyance or other disposition shall have been made (the “ Surviving Guarantor ”) is a corporation,

 

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  limited liability company or limited partnership organized or existing under the laws of the United States, any state of the United States, the District of Columbia, Canada or any province or territory of Canada;

 

  (ii) the Surviving Guarantor expressly assumes all the obligations of such Subsidiary Guarantor under its Subsidiary Guarantee and this Indenture pursuant to agreements reasonably satisfactory to the Trustee;

 

  (iii) immediately after giving effect to such transaction no Default or Event of Default exists; and

 

  (iv) either (a) such Subsidiary Guarantor or the Surviving Guarantor shall, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable fiscal quarter, be permitted to Incur at least US$1.00 of additional Indebtedness pursuant to the Debt to Cash Flow Ratio test set forth in Section 4.09(1) hereof, or (b) the Company will, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable fiscal quarter, have a Debt to Cash Flow Ratio equal to or less than the Company’s Debt to Cash Flow Ratio immediately prior to such transaction.

 

  (3) In addition, the Company shall not, and shall cause each Subsidiary Guarantor not to, directly or indirectly, lease all or substantially all of its properties or assets, in one or more related transactions, to any other Person. Clauses (1)(iv) and (2)(iv) of this Section 5.01 shall not apply to a merger, consolidation or amalgamation, or a sale, assignment, transfer, conveyance or other disposition of assets, between or among the Company and any Restricted Subsidiary.

Section   5.02.      Successor Corporation Substituted .

Each Surviving Company and Surviving Guarantor shall succeed to, and be substituted for, and may exercise every right and power of the Company or a Subsidiary Guarantor, as applicable, under this Indenture; provided, however, that in the case of:

 

  (1) a sale, transfer, assignment, conveyance or other disposition (unless such sale, transfer, assignment, conveyance or other disposition is of all or substantially all of the assets of the Company and the Restricted Subsidiaries, taken as a whole, or in the case of a Subsidiary Guarantor, such sale, transfer, assignment, conveyance or other disposition is of all or substantially all of the assets of such Subsidiary Guarantor or all of the Capital Stock of such Subsidiary Guarantor to a Person that is not (either before or after giving effect to such transactions) a Subsidiary of the Company), or

 

  (2) a lease,

the predecessor company shall not be released from any of the obligations or covenants under this Indenture, including with respect to the payment of the Notes and obligations under the Subsidiary Guarantees.

ARTICLE 6.

DEFAULTS AND REMEDIES

Section   6.01.      Events of Default .

Each of the following is an “Event of Default:”

 

  (i) default for 30 days in the payment when due of interest on, or with respect to, the Notes;

 

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  (ii) default in payment, when due at Stated Maturity, upon acceleration, redemption, required repurchase or otherwise, of the principal of, or premium, if any, on the Notes;

 

  (iii) failure by the Company or any Restricted Subsidiary to comply with the provisions of Section 4.12, 4.18 or 5.01 hereof;

 

  (iv) failure by the Company for 90 days after written notice thereof has been given to the Company by the Trustee, or to the Company and the Trustee by the Holders of at least 25% of the aggregate principal amount of the Notes outstanding, to comply with the covenants or agreements in Section 4.03 hereof;

 

  (v) failure by the Company or any Restricted Subsidiary for 60 days after written notice thereof has been given to the Company by the Trustee, or to the Company and the Trustee by the Holders of at least 25% of the aggregate principal amount of the Notes outstanding to comply with any of its other covenants or agreements in this Indenture (other than those covenants or agreements in Sections 4.03, 4.12, 4.18 and 5.01 hereof);

 

  (vi) default under any mortgage, hypothec, indenture or instrument under which there may be issued or by which there may be secured or evidenced any Indebtedness for money borrowed by the Company or any Restricted Subsidiary, or the payment of which is guaranteed by the Company or any Restricted Subsidiary, whether such Indebtedness or guarantee now exists, or is created after the Issue Date, if that default:

 

  (A) is caused by a failure to pay principal of, or interest or premium, if any, on, such Indebtedness when due at the final maturity of such Indebtedness (a “ Payment Default ”); or

 

  (B) results in the acceleration of such Indebtedness prior to its Stated Maturity,

and, in each case, the principal amount of any such Indebtedness, together with the principal amount of any other such Indebtedness under which there has been a Payment Default or the maturity of which has been so accelerated, aggregates US$25.0 million or more;

 

  (vii) failure by the Company or any Restricted Subsidiary to pay final, non-appealable judgments aggregating in excess of US$25.0 million, which judgments are not paid, discharged or stayed for a period of 60 days;

 

  (viii) any Subsidiary Guarantee of a Significant Subsidiary ceases, or the Subsidiary Guarantees of any group of Subsidiaries that, when taken together, would constitute a Significant Subsidiary cease, to be in full force and effect (other than in accordance with the terms of any such Subsidiary Guarantee) or any Subsidiary Guarantor that is a Significant Subsidiary denies or disaffirms its obligations under its Subsidiary Guarantee, or a group of Subsidiary Guarantors that, when taken together, would constitute a Significant Subsidiary deny or disaffirm their obligations under their respective Subsidiary Guarantees;

 

  (ix) the Company or any of its Significant Subsidiaries that are Restricted Subsidiaries or any group of Restricted Subsidiaries that, when taken together, would constitute a Significant Subsidiary, pursuant to or within the meaning of any Bankruptcy Law:

 

  (A) commences a voluntary case or gives notice of intention to make a proposal under any Bankruptcy Law;

 

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  (B) consents to the entry of an order for relief against it in an involuntary case or consents to its dissolution or winding up;

 

  (C) consents to the appointment of a receiver, interim receiver, receiver and manager, liquidator, trustee or custodian of it or for all or substantially all of its property;

 

  (D) makes a general assignment for the benefit of its creditors;

 

  (E) admits in writing its inability to pay its debts as they become due or otherwise admits its insolvency; or

 

  (F) seeks a stay of proceedings against it or proposes or gives notice or intention to propose a compromise, arrangement or reorganization of any of its debts or obligations under any Bankruptcy Law; and

 

  (x) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:

 

  (A) is for relief against the Company or any of its Significant Subsidiaries that are Restricted Subsidiaries or any group of Restricted Subsidiaries that, when taken together, would constitute a Significant Subsidiary, in an involuntary case; or

 

  (B) appoints a receiver, interim receiver, receiver and manager, liquidator, trustee or custodian of the Company or any of its Significant Subsidiaries that are Restricted Subsidiaries or any group of Restricted Subsidiaries that, when taken together, would constitute a Significant Subsidiary, or for all or substantially all of the property of the Company or any of its Significant Subsidiaries that are Restricted Subsidiaries or any group of Restricted Subsidiaries that, when taken together, would constitute a Significant Subsidiary;

 

  (C) orders the liquidation of the Company or any of its Significant Subsidiaries that are Restricted Subsidiaries or any group of Restricted Subsidiaries that, when taken together, would constitute a Significant Subsidiary; or

 

  (D) orders the presentation of any plan or arrangement, compromise or reorganization of the Company or any of its Significant Subsidiaries that are Restricted Subsidiaries or any group of Restricted Subsidiaries that, when taken together, would constitute a Significant Subsidiary;

and such order or decree remains unstayed and in effect for 60 consecutive days.

Section   6.02.      Acceleration .

If any Event of Default (other than those of the type described in Section 6.01(ix) or (x) occurs and is continuing, the Trustee may, and the Trustee upon the request of Holders of 25% in principal amount of the outstanding Notes shall, or the Holders of at least 25% in principal amount of outstanding Notes may, declare the principal of all the Notes, together with all accrued and unpaid interest, premium, if any, to be due and payable by notice in writing to the Company and the Trustee specifying the respective Event of Default and that such notice is a notice of acceleration (the “ Acceleration Notice ”), and the same shall become immediately due and payable.

In the case of an Event of Default specified in Section 6.01(ix) or (x) hereof, all outstanding Notes shall become due and payable immediately without further action or notice by the Trustee or the Holders. Holders may not enforce this Indenture or the Notes except as provided in this Indenture.

 

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At any time after a declaration of acceleration with respect to the Notes, the Holders of a majority in principal amount of the Notes then outstanding (by notice to the Trustee) may rescind and cancel such declaration and its consequences if:

 

  (1) the rescission would not conflict with any judgment or decree of a court of competent jurisdiction;

 

  (2) all existing Defaults and Events of Default have been cured or waived except non-payment of principal of or interest on the Notes that has become due solely by such declaration of acceleration;

 

  (3) to the extent the payment of such interest is lawful, interest (at the same rate specified in the Notes) on overdue installments of interest and overdue payments of principal which has become due otherwise than by such declaration of acceleration has been paid;

 

  (4) the Company has paid the Trustee its reasonable compensation and reimbursed the Trustee for its reasonable expenses, disbursements and advances; and

 

  (5) in the event of the cure or waiver of an Event of Default of the type described in Section 6.01(ix) or (x), the Trustee has received an Officers’ Certificate and Opinion of Counsel that such Event of Default has been cured or waived.

In the case of an Event of Default with respect to the Notes occurring by reason of any willful action or inaction taken or not taken by the Company or on the Company’s behalf with the intention of avoiding payment of the premium that the Company would have been required to pay if the Company had then elected to redeem the Notes pursuant to Section 3.07 hereof, an equivalent premium shall also become and be immediately due and payable to the extent permitted by law upon the acceleration of the Notes.

Section   6.03.      Other Remedies .

If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy to collect the payment of principal, premium, if any, and interest on the Notes or to enforce the performance of any provision of the Notes or this Indenture.

The Trustee may maintain a proceeding even if it does not possess any of the Notes or does not produce any of them in the proceeding, and any such proceeding instituted by the Trustee shall be brought in its own name on behalf of the Holders of Notes and as the fondé de pouvoir (holder of the power of attorney) of the Holders of the Notes, and any recovery of judgment shall be for the rateable benefit of the Holders of the Notes subject to the provisions of this Indenture. A delay or omission by the Trustee or any Holder in exercising any right or remedy accruing upon an Event of Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default. All remedies shall be cumulative to the extent permitted by law.

Section   6.04.      Waiver of Past Defaults .

The Holders of at least a majority in aggregate principal amount of the Notes then outstanding by notice to the Trustee may on behalf of the Holders of all of the Notes waive any existing Default or Event of Default, and its consequences, except a continuing Default or Event of Default (i) in the payment of the principal of or interest on the Notes and (ii) in respect of a covenant or provision which under this Indenture cannot be modified or amended without the consent of the Holder of each Note affected by such modification or amendment. Upon any waiver of a Default or Event of Default such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed cured for every purpose of this Indenture, but no such waiver shall extend to any subsequent or other Default or Event of Default or impair any right consequent thereon.

 

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Section   6.05.      Control by Majority .

Subject to Section 7.01, Section 7.02(5) (including the Trustee’s receipt of the security or indemnification described therein) and Section 7.06 hereof, in case an Event of Default shall occur and be continuing, the Holders of at least a majority in aggregate principal amount of the Notes then outstanding shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or exercising any trust or power conferred on the Trustee with respect to the Notes; provided, however, the Trustee may refuse to follow any direction from the Holders of at least a majority in aggregate principal amount of the Notes then outstanding that conflicts with applicable law or this Indenture, or that the Trustee determines in good faith may be unduly prejudicial to the rights of the Holders not joining in the giving of such direction, and may take any other action it deems proper that is not inconsistent with such direction.

Section   6.06.      Limitation on Suits .

No Holder shall have any right to institute any proceeding with respect to this Indenture, or for the appointment of a receiver or trustee, or for any remedy thereunder, unless:

 

  (1) such Holder has previously given to the Trustee written notice of a continuing Event of Default,

 

  (2) Holders of at least 25% in aggregate principal amount of the Notes then outstanding have made written request and offered indemnity satisfactory to the Trustee to institute such proceeding as trustee, and

 

  (3) the Trustee shall not have received from the Holders of a majority in aggregate principal amount of the Notes then outstanding a direction inconsistent with such request and shall have failed to institute such proceeding within 60 days.

The preceding limitations shall not apply to a suit instituted by a Holder for enforcement of payment of principal of, and premium, if any, or interest on, a Note on or after the respective due dates for such payments set forth in such Note.

A Holder may not use this Indenture to affect, disturb or prejudice the rights of another Holder or to obtain a preference or priority over another Holder.

Section   6.07.      Rights of Holders to Receive Payment .

Notwithstanding any other provision of this Indenture (including, without limitation, Section 6.06 hereof), the right of any Holder to receive payment of principal, premium, if any, and interest on the Notes held by such Holder, on or after the respective due dates expressed in the Notes (including in connection with an offer to purchase), or to bring suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of such Holder.

Section   6.08.      Collection Suit by Trustee .

If an Event of Default specified in Section 6.01 (i) or (ii) occurs and is continuing, the Trustee is authorized to recover judgment in its own name on behalf of all the Holders of Notes and as the fondé de pouvoir (holder of the power of attorney) against the Company for the whole amount of principal of, premium, if any, and interest then due and owing (together with interest on overdue principal and, to the extent lawful, interest) and such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.

Section   6.09.      Trustee May File Proofs of Claim .

The Trustee shall be authorized in its own name on behalf of the Holders of Notes and as the fondé de pouvoir (holder of the power of attorney) of the Holders of the Notes to file such proofs of claim and other papers or

 

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documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and the Holders allowed in any judicial proceedings relative to the Company (or any other obligor upon the Notes), its creditors or its property and shall be entitled and empowered to collect, receive and distribute any money or other property payable or deliverable on any such claims and any custodian in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee, and in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due to the Trustee under Section 7.06 hereof. To the extent that the payment of any such compensation, expenses, disbursements and advances of the Trustee and its agents and counsel, and any other amounts due to the Trustee under Section 7.06 hereof out of the estate in any such proceeding, shall be denied for any reason, payment of the same shall be secured by a Lien on, and shall be paid out of, any and all distributions, moneys, securities and any other properties that the Holders may be entitled to receive in such proceeding whether in liquidation or under any plan of reorganization or arrangement or otherwise. Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Holder, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.

Section   6.10.      Priorities .

If the Trustee collects any money pursuant to this Article 6, it shall be held in trust by the Trustee and paid out in the following order:

First: to the Trustee, its agents and attorneys for amounts due under Section 7.06 hereof, including payment of all compensation, expenses and liabilities Incurred, and all advances made, by the Trustee and the costs and expenses of collection;

Second: to Holders for amounts due and unpaid on the Notes for principal, premium, if any, and interest ratably, without preference or priority of any kind, according to the amounts due and payable on the Notes for principal, premium, if any, and interest, respectively; and

Third: to the Company or to such party as a court of competent jurisdiction shall direct.

The Trustee may fix a record date and payment date for any payment to Holders pursuant to this Section 6.10.

Section   6.11.      Undertaking for Costs .

In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as a Trustee, a court in its discretion may require the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section 6.11 shall not apply to a suit by the Trustee, a suit by a Holder pursuant to Section 6.07 hereof, or a suit by Holders of more than 10% in principal amount of the then outstanding Notes.

 

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ARTICLE 7.

TRUSTEE

Section   7.01.      Duties of Trustee .

 

  (1) If an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, as a prudent Person would exercise or use under the circumstances in the conduct of such Person’s own affairs.

 

  (2) Except during the continuance of an Event of Default:

 

  (i) the duties of the Trustee shall be determined solely by the express provisions of this Indenture and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and

 

  (ii) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, the Trustee shall examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein).

 

  (3) The Trustee may not be relieved from liabilities for its own negligent action, its own negligent failure to act, or its own wilful misconduct, except that:

 

  (i) this paragraph does not limit the effect of paragraph (2) of this Section;

 

  (ii) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and

 

  (iii) the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.05 hereof.

 

  (4) Whether or not therein expressly so provided, every provision of this Indenture that in any way relates to the Trustee is subject to paragraphs (1), (2) and (3) of this Section 7.01.

 

  (5) No provision of this Indenture shall require the Trustee to expend or risk its own funds or Incur any financial liability. The Trustee shall be under no obligation to exercise any of its rights and powers under this Indenture at the request of any Holders, unless such Holders shall have offered to the Trustee security and indemnity satisfactory to it against any loss, liability or expense.

 

  (6) The Trustee shall not be liable for interest on any money received by it except as the Trustee may agree in writing with the Company. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.

Section   7.02.      Rights of Trustee .

 

  (1) The Trustee may conclusively rely upon any document believed by it to be genuine and to have been signed or presented by the proper Person. The Trustee need not investigate any fact or matter stated in any such document.

 

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  (2) Before the Trustee acts or refrains from acting, it may require an Officers’ Certificate or an Opinion of Counsel or both. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such Officers’ Certificate or Opinion of Counsel. The Trustee may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon.

 

  (3) The Trustee shall not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within the rights or powers conferred upon it by this Indenture.

 

  (4) Unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from the Company shall be sufficient if signed by an Officer of the Company.

 

  (5) The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders unless such Holders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities that might be Incurred by it in compliance with such request or direction.

 

  (6) The Trustee shall not be deemed to have notice of any Default or Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a Default or Event of Default is received by a Responsible Officer of the Trustee at the Corporate Trust Office of the Trustee from the Company or the Holders of 25% in aggregate principal amount of the outstanding Notes, and such notice references the specific Default or Event of Default, the Notes and this Indenture.

 

  (7) The Trustee shall not be required to give any bond or surety in respect of the performance of its power and duties hereunder.

 

  (8) The Trustee shall have no duty to inquire as to the performance of the Company’s covenants herein.

 

  (9) The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder.

Section   7.03.      Individual Rights of Trustee .

The Trustee in its individual or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Company or any Subsidiary Guarantor or any Affiliate of the Company with the same rights it would have if it were not Trustee. Any Agent may do the same with like rights and duties. The Trustee shall also be subject to Section 7.09.

Section   7.04.      Trustee’s Disclaimer .

The Trustee shall not be responsible for and makes no representation as to the validity or adequacy of this Indenture or the Notes, it shall not be accountable for the Company’s use of the proceeds from the Notes or any money paid to the Company or upon the Company’s direction under any provision of this Indenture, it shall not be responsible for the use or application of any money received by any Paying Agent other than the Trustee, and it shall not be responsible for any statement or recital herein or any statement in the Notes or any other document in connection with the sale of the Notes or pursuant to this Indenture other than its certificate of authentication.

 

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Section   7.05.      Notice of Defaults .

If a Default or Event of Default occurs and is continuing and if it is known to the Trustee, the Trustee shall mail to Holders a notice of the Default or Event of Default within 90 days after it occurs. Except in the case of a Default or Event of Default in payment of principal of, premium, if any, or interest on any Note, the Trustee may withhold the notice if and so long as a committee of its Responsible Officers in good faith determines that withholding the notice is in the interests of the Holders.

Section   7.06.      Compensation and Indemnity .

The Company shall pay to the Trustee from time to time reasonable compensation for its acceptance of this Indenture and services hereunder. The Company shall reimburse the Trustee promptly upon request for all reasonable disbursements, advances and expenses Incurred or made by it in addition to the compensation for its services (including the reasonable compensation, disbursements and expenses of the Trustee’s agents and counsel), except any such disbursement, advance or expense as may be attributable to its negligence, wilful misconduct or bad faith.

The Company shall indemnify the Trustee (in its capacity as Trustee) or any predecessor Trustee (in its capacity as Trustee) against any and all losses, claims, damages, penalties, fines, liabilities or expenses, including incidental and out-of-pocket expenses and reasonable attorneys fees (for purposes of this Article 7, “ losses ”) Incurred by it arising out of or in connection with the acceptance or administration of its duties under this Indenture, including the costs and expenses of enforcing this Indenture against the Company (including this Section 7.06) and defending itself against any claim (whether asserted by the Company or any Holder or any other Person) or liability in connection with the exercise or performance of any of its powers or duties hereunder, except to the extent such losses may be attributable to its negligence, wilful misconduct or bad faith. The Trustee shall notify the Company promptly of any claim for which it may seek indemnity. Failure by the Trustee to so notify the Company shall not relieve the Company of its obligations hereunder. The Company shall defend the claim, and the Trustee shall cooperate in the defense. The Trustee may have separate counsel if the Trustee has been reasonably advised by counsel that there may be one or more legal defenses available to it that are different from or additional to those available to the Company and in the reasonable judgment of such counsel it is advisable for the Trustee to engage separate counsel, and the Company shall pay the reasonable fees and expenses of such counsel. The Company need not pay for any settlement made without its consent, which consent shall not be unreasonably withheld. The Company need not reimburse any expense or indemnify against any loss Incurred by the Trustee through the Trustee’s own negligence, wilful misconduct or bad faith.

The obligations of the Company under this Section 7.06 shall survive the satisfaction and discharge of this Indenture, the resignation or removal of the Trustee and payment in full of the Notes.

To secure the Company’s payment obligations in this Section, the Trustee shall have a Lien prior to the Notes on all money or property held or collected by the Trustee, except that held in trust to pay principal, premium, if any, and interest on particular Notes. Such Lien shall survive the satisfaction and discharge of this Indenture.

When the Trustee Incurs expenses or renders services after an Event of Default specified in Section 6.01(ix) or (x) hereof occurs, the expenses and the compensation for the services (including the fees and expenses of its agents and counsel) are intended to constitute expenses of administration under any Bankruptcy Law.

Section   7.07.      Replacement of Trustee .

A resignation or removal of the Trustee and appointment of a successor Trustee shall become effective only upon the successor Trustee’s acceptance of appointment as provided in this Section 7.07.

 

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The Trustee may resign in writing at any time upon 30 days’ prior notice to the Company and be discharged from the trust hereby created by so notifying the Company. The Holders of a majority in principal amount of the then outstanding Notes may remove the Trustee by so notifying the Trustee and the Company in writing. The Company may remove the Trustee if:

 

  (1) the Trustee fails to comply with Section 7.09 hereof;

 

  (2) the Trustee is adjudged bankrupt or insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy Law;

 

  (3) a custodian or public officer takes charge of the Trustee or its property; or

 

  (4) the Trustee becomes incapable of acting.

If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any reason (the Trustee in such event being referred to herein as the retiring Trustee), the Company shall promptly appoint a successor Trustee. Within one year after the successor Trustee takes office, the Holders of a majority in principal amount of the then outstanding Notes may appoint a successor Trustee to replace the successor Trustee appointed by the Company.

If a successor Trustee does not take office within 30 days after the retiring Trustee resigns or is removed, the retiring Trustee, the Company, or the Holders of at least 10% in principal amount of the then outstanding Notes may petition any court of competent jurisdiction for the appointment of a successor Trustee.

If the Trustee, after written request by any Holder who has been a Holder for at least six months, fails to comply with Section 7.09 hereof, such Holder may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.

A successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Company. Thereupon, the resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee under this Indenture. The successor Trustee shall mail a notice of its succession to Holders. Subject to the Lien provided for in Section 7.06 hereof, the retiring Trustee shall promptly transfer all property held by it as Trustee to the successor Trustee provided, however; that all sums owing to the Trustee hereunder shall have been paid. Notwithstanding replacement of the Trustee pursuant to this Section 7.07, the Company’s obligations under Section 7.06 hereof shall continue for the benefit of the retiring Trustee.

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   7.08.      Successor Trustee by Merger, Etc .

If the Trustee consolidates, merges or converts into, or transfers all or substantially all of its corporate trust business to, another corporation or banking association, the successor corporation or banking association without any further act shall, if such successor corporation or banking association is otherwise eligible hereunder, be the successor Trustee.

Section   7.09.      Eligibility, Disqualification .

There shall at all times be a Trustee hereunder that is a Person organized and doing business under the laws of Canada or of any province thereof that is authorized under such laws to exercise corporate trustee power. 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 specified in this Article.

The Trustee represents to the Company that at the date of the execution and delivery of this Indenture there exists no material conflict of interest in the role of the Trustee as a fiduciary hereunder. If at any time a material conflict of interest exists in the Trustee’s role as a fiduciary hereunder the Trustee shall, within 90 days after ascertaining that such a material conflict of interest exists, either eliminate the same or else resign as Trustee hereunder by giving notice in writing to the Company at least 21 days prior to such resignation and shall thereupon be discharged from all further duties and liabilities hereunder.

 

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Section   7.10.      Acceptance of Trust .

The Trustee hereby accepts any and all trusts created or constituted for the purposes of this Indenture, including Sections 2.04, 6.10, 8.04, 8.05, 8.06, 11.01, 11.02 and 11.03, or any Notes, agrees to perform the same upon the terms and conditions herein set forth and, to the extent any such terms and conditions conflict with any provisions of applicable law, such terms and conditions shall prevail to the extent that such provisions do not constitute provisions of public order.

Section 7.11.     Fondé de Pouvoir .

The Trustee hereby agrees to act as the fondé de pouvoir (holder of the power of attorney) for the Holders of the Notes to the extent necessary or desirable for the purposes of this Indenture and each Holder by receiving and holding the Notes accepts and confirms the appointment of the Trustee as fondé de pouvoir (holder of the power of attorney) of such Holder to the extent necessary for the purposes hereof and in accordance with and subject to the provisions hereof, including with respect to and in connection with the guarantees contemplated by Article 10 of this Indenture.

To the extent necessary and for greater certainty (but without in any way detracting from custom and usage applicable with regards to the relationship between the Company, the Trustee and the Holders hereunder) and subject to any applicable law of public order, the Trustee and the Company hereby agree with regards to the Trustee so acting as fondé de pouvoir (holder of the power of attorney) of the Holders hereunder and each Holder by receiving and holding same agrees with the Company and the Trustee that:

 

  (1) notwithstanding any other provision hereof and except as may be otherwise set forth in any request, demand, authorization, direction, notice, consent, waiver or other action given or taken by Holders of Notes pursuant to this Indenture, relating thereto, no Holder shall be liable to third parties for acts performed by the Trustee (or any other person appointed by the Trustee to perform all or any of its rights, powers, trusts or duties hereunder) during the exercise of its rights, powers and trusts and the performance of its duties under this Indenture or for injury caused to such parties by the fault of the Trustee (or any such person), or for contracts entered into in favour of such parties, during such performance and the Trustee (or any such person) alone shall be so liable subject to any rights or recourses which the Trustee (or any such person) may have hereunder or under any applicable law against the Company or any other person (other than a Holder) in connection with any such liability;

 

  (2) except as otherwise expressly provided herein or in any request, demand, authorization, direction, notice, consent, waiver or other action given or taken by Holders of Notes pursuant to this Indenture, the Trustee shall not be entitled to receive from the Holders any remuneration or compensation for any services rendered by the Trustee hereunder or reimbursement of any costs, expenses, liabilities, disbursements or advances Incurred or made by the Trustee in accordance with any provision of this Indenture or interest thereon;

 

  (3) notwithstanding any other provision hereof and except as may be otherwise set forth in any request, demand, authorization, direction, notice, consent, waiver or other action given or taken by Holders of Notes pursuant to this Indenture, relating thereto, no Holder shall be liable to compensate the Trustee for any injury suffered by it by reason of the performance of its rights, powers, trusts or duties hereunder subject to any rights or recourses which the Trustee may have hereunder or under any applicable law against the Company or any other person (other than a Holder) in connection with such injury;

 

  (4) neither the death nor bankruptcy of a Holder shall terminate the Trustee’s rights, powers, trusts or duties hereunder with respect to the Notes held by such Holder which shall continue to apply in favour of the Holder or Holders who have acquired such Notes from such deceased or bankrupt Holder;

 

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  (5) the bankruptcy of the Trustee shall not terminate its rights, powers, trusts or duties hereunder provided that such rights, powers, trusts or duties are assumed by a successor Trustee appointed in accordance with the provisions of Section 7.07;

 

  (6) so long as any Notes remain outstanding, (i) each Holder hereby renounces its right to revoke any mandate relationship created between such Holder and the Trustee hereunder and (ii) the Trustee hereby agrees that it will not revoke any such mandate relationship except through a resignation pursuant to and in compliance with the provisions of Section 7.07; and

 

  (7) except as otherwise expressly provided herein or in any request, demand, authorization, direction, notice, consent, waiver or other action given or taken by Holders of Notes pursuant to this Indenture, the Trustee shall not be obliged to render any account to the Holders nor return to the Holders any amounts which it has received in the performance of its duties hereunder nor pay any interest to the Holders on such amounts.

Section 7.12.     Company Status .

The Company represents and warrants that it is filing with the Commission as a Foreign Private Issuer (as such term is defined in the Exchange Act) and has delivered to the Trustee an officers’ certificate certifying such “reporting issuer” status and other information as the Trustee has requested, including, but not limited to, the Central Index Key that has been assigned for filing purposes. Should the Company cease to file as a Foreign Private Issuer, the Company covenants to deliver to the Trustee an officers’ certificate (in a form provided by the Trustee) certifying a change in “reporting issuer” status and such other information as the Trustee may require at such given time. The Company understands that the Trustee is relying upon the foregoing representation, warranty and covenant in order to meet certain Commission obligations with respect to those clients who are filing with the Commission.

ARTICLE 8.

LEGAL DEFEASANCE AND COVENANT DEFEASANCE

Section   8.01.      Option to Effect Legal Defeasance or Covenant Defeasance .

The Company may, at its option and at any time, elect to have either Section 8.02 or 8.03 hereof be applied to all outstanding Notes upon compliance with the conditions set forth in this Article 8.

Section   8.02.      Legal Defeasance and Discharge .

Upon the Company’s exercise under Section 8.01 hereof of the option applicable to this Section 8.02, the Company shall, subject to the satisfaction of the conditions set forth in Section 8.04 hereof, be deemed to have been discharged from its obligations with respect to all outstanding Notes on the date the conditions set forth below are satisfied (hereinafter, “ Legal Defeasance ”) and each Subsidiary Guarantor shall be released from all of its obligations under its Subsidiary Guarantee. For this purpose, Legal Defeasance means that the Company shall be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Notes, which shall thereafter be deemed to be “outstanding” only for the purposes of Section 8.05 hereof and the other Sections of this Indenture referred to in (a), (b) and (d) below, and to have satisfied all its other obligations under the Notes and this Indenture (and the Trustee, on demand of and at the expense of the Company, shall execute proper instruments acknowledging the same), except for the following provisions which shall survive until otherwise terminated or discharged hereunder: (a) the rights of Holders of outstanding Notes to receive solely from the trust fund described in Section 8.04 hereof, and as more fully set forth in such Section, payments in respect of the principal of, premium, if any, or interest and Additional Amounts on such Notes when such payments are due, (b) the Company’s obligations with respect to such Notes under Article 2 and Sections 4.01 and 4.02 hereof, (c) the rights, powers, trusts, duties and immunities of the Trustee hereunder and the Company’s obligations and the Subsidiary Guarantor’s in connection therewith and (d) this Article 8. If the Company exercises under Section 8.01 hereof the

 

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option applicable to this Section 8.02, subject to the satisfaction of the conditions set forth in Section 8.04 hereof, payment of the Notes may not be accelerated because of an Event of Default. Subject to compliance with this Article 8, the Company may exercise its option under this Section 8.02 notwithstanding the prior exercise of its option under Section 8.03 hereof.

Section   8.03.      Covenant Defeasance .

Upon the Company’s exercise under Section 8.01 hereof of the option applicable to this Section 8.03, the Company shall, subject to the satisfaction of the conditions set forth in Section 8.04 hereof, be released from its obligations under the covenants contained in Sections 4.05 and 4.06, 4.09 through 4.19, and 4.21 hereof, and the operation of Sections 5.01(1)(iv) and (2)(iv) hereof, with respect to the outstanding Notes on and after the date the conditions set forth in Section 8.04 hereof are satisfied (hereinafter, “ Covenant Defeasance ”) and each Subsidiary Guarantor shall be released from all of its obligations under its Subsidiary Guarantee with respect to such covenants in connection with such outstanding Notes and the Notes shall thereafter be deemed not “outstanding” for the purposes of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be deemed “outstanding” for all other purposes hereunder (it being understood that such Notes shall not be deemed outstanding for accounting purposes). For this purpose, Covenant Defeasance means that, with respect to the outstanding Notes, the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other provision herein or in any other document and such omission to comply shall not constitute a Default or an Event of Default under Section 6.01 hereof, but, except as specified above, the remainder of this Indenture and such Notes shall be unaffected thereby. If the Company exercises under Section 8.01 hereof the option applicable to this Section 8.03, subject to the satisfaction of the conditions set forth in Section 8.04 hereof, payment of the Notes may not be accelerated because of an Event of Default specified in clause (iii) (with respect to the covenants contained in Sections 4.12 or 4.18 or Section 5.01(1)(iv) or (2)(iv) hereof), (iv), (v) (with respect to Sections 4.05, 4.06, 4.11, 4.13 through 4.17, 4.19 and 4.21 hereof), (vi), (vii), (viii), (ix) and (x) of such Section 6.01 (but in the case of (ix) and (x) of Section 6.01 hereof, with respect to Significant Subsidiaries that are Restricted Subsidiaries or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary only) or because of the Company’s failure to comply with Section 5.01(1)(iv) or (2)(iv) hereof.

Section   8.04.      Conditions to Legal or Covenant Defeasance .

The following shall be the conditions to the application of either Section 8.02 or 8.03 hereof to the outstanding Notes.

In order to exercise Legal Defeasance or Covenant Defeasance:

 

  (1) the Company shall irrevocably deposit with the Trustee, as mandatary and depositary, in trust, for the benefit of the Holders cash in Canadian dollars, non-callable Government Securities, or a combination thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized firm of independent accountants, to pay the principal of, or interest and premium and Additional Amounts, if any, on the outstanding notes on the Stated Maturity or on the applicable date of redemption, as the case may be, and the Company shall specify whether the Notes are being defeased to maturity or to a particular date of redemption;

 

  (2)

in the case of Legal Defeasance, the Company shall deliver to the Trustee an Opinion of United States counsel reasonably acceptable to the Trustee confirming that (a) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (b) since the Issue Date, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such opinion of counsel shall confirm that, the Holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred, and the Company shall have delivered to the Trustee an opinion of Counsel in Canada reasonably acceptable to the Trustee confirming that the Holders of the outstanding Notes will not

 

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  recognize income, gain or loss for Canadian federal income tax purposes as a result of such Legal Defeasance and will be subject to Canadian federal income tax (including withholding tax) on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;

 

  (3) in the case of Covenant Defeasance, the Company shall have delivered to the Trustee an opinion of United States counsel reasonably acceptable to the trustee confirming that the Holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred, and the Company shall deliver to the Trustee an Opinion of Counsel in Canada reasonably acceptable to the Trustee confirming that Holders of the outstanding Notes will not recognize income, gain or loss for Canadian federal income tax purposes as a result of such Covenant Defeasance and will be subject to Canadian federal income tax (including withholding tax) on the same amounts, in the same manner and at the same time as would have been the case if such Covenant Defeasance had not occurred;

 

  (4)

no Default or Event of Default shall have occurred and be continuing either (a) on the date of such deposit, or (b) insofar as Events of Default from bankruptcy or insolvency events are concerned, at any time in the period ending on the 91 st day after the date of deposit, other than, in each case, a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit;

 

  (5) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under any material agreement or instrument, to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound;

 

  (6) the Company shall deliver to the Trustee an Opinion of Counsel to the effect that, assuming no intervening bankruptcy of the Company or any Subsidiary Guarantor between the date of deposit and the 91st day following such deposit and assuming that no Holder is an “insider” of the Company under applicable Bankruptcy Law, after the 91st day following such deposit, the trust funds will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally;

 

  (7) the Company shall deliver to the Trustee an Officers’ Certificate stating that such deposit was not made by the Company with the intent of preferring the Holders of Notes over the other creditors of the Company with the intent of defeating, hindering, delaying or defrauding creditors of the Company or others;

 

  (8) if the Notes are to be redeemed prior to their Stated Maturity, the Company must deliver to the Trustee irrevocable instructions to redeem all of the Notes on the specified redemption date; and

 

  (9) the Company shall deliver to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent relating to the Legal Defeasance or the Covenant Defeasance have been complied with.

Section   8.05.      Deposited Cash and Government Securities to be Held in Trust, Other Miscellaneous Provisions .

Subject to Section 8.06 hereof, all cash and non-callable Government Securities (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this Section 8.05, the “Trustee”) pursuant to Section 8.04 hereof in respect of the outstanding Notes shall be held in trust and applied by the Trustee, in accordance with the provisions of such Notes and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as Paying Agent) as the Trustee may determine, to the Holders of all sums due and to become due thereon in respect of principal, premium, if any, and interest but such cash and securities need not be segregated from other funds except to the extent required by law.

 

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The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the cash or non-callable Government Securities deposited pursuant to Section 8.04 hereof or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of the outstanding Notes.

Anything in this Article 8 to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon the request of the Company any cash or non-callable Government Securities held by it as provided in Section 8.04 hereof which, in the opinion of a nationally recognized firm of independent certified public accountants of recognized international standing expressed in a written certification thereof delivered to the Trustee (which may be the certification delivered under Section 8.04(1) hereof), are in excess of the amount thereof that would then be required to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.

Section   8.06.      Repayment to Company .

Subject to any applicable laws relating to abandoned property, any cash or non-callable Government Securities deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal, premium, if any, or interest on any Note and remaining unclaimed for two years after such principal, premium, if any, or interest has become due and payable shall be paid to the Company on its request or (if then held by the Company) shall be discharged from such trust; and the Holder shall thereafter, as an unsecured creditor, look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such cash and securities, and all liability of the Company as trustee thereof, shall thereupon cease; provided, however , that the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Company cause to be published once, in The Globe and Mail (national edition) and Le Journal de Montréal , notice that such cash and securities remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such notification or publication, any unclaimed balance of such cash and securities then remaining shall be repaid to the Company.

Section   8.07.      Reinstatement .

If the Trustee or Paying Agent is unable to apply any cash or non-callable Government Securities in accordance with Section 8.02 or 8.03 hereof, as the case may be, by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the Company’s obligations under this Indenture and the Notes shall be revived and reinstated as though no deposit had occurred pursuant to Section 8.02 or 8.03 hereof until such time as the Trustee or Paying Agent is permitted to apply all such cash and securities in accordance with Section 8.02 or 8.03 hereof, as the case may be; provided, however , that, if the Company makes any payment of principal of, premium, if any, or interest on any Note following the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders to receive such payment from the cash and securities held by the Trustee or Paying Agent.

ARTICLE 9.

AMENDMENT, SUPPLEMENT AND WAIVER

Section   9.01.      Without Consent of Holders of Notes .

Notwithstanding Section 9.02 of this Indenture, the Company and the Trustee may amend or supplement this Indenture or the Notes without the consent of any Holder to:

 

  (1) cure any ambiguity, defect or inconsistency;

 

  (2) provide for uncertificated Notes in addition to or in place of certificated Notes;

 

  (3)

provide for the assumption of the obligations of the Company and/or a Subsidiary Guarantor to Holders in the case of a merger, consolidation, or amalgamation or sale of all or substantially all of the assets of the Company and/or a Subsidiary Guarantor; provided, however , that the Company or

 

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  such successor shall deliver to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such amalgamation, merger, consolidation, conveyance or transfer complies with this covenant and that all conditions precedent contained in this Indenture relating to such transaction have been complied with;

 

  (4) make any change that would provide any additional rights or benefits to the Holders or that does not adversely affect the legal rights under this Indenture of any such Holder;

 

  (5) add additional guarantees with respect to the Notes or release Subsidiary Guarantors from Subsidiary Guarantees as provided or permitted by the terms of this Indenture;

 

  (6) provide for the issuance of Additional Notes in accordance with this Indenture;

 

  (7) to conform the text of this Indenture or the Notes to any provision of the “Description of Notes” section of the Final Offering Memorandum for the Notes, dated September 10, 2015, to the extent that such provision in such “Description of Notes” section was intended to be a verbatim recitation of a provision of this Indenture or the Notes, as set forth in an Officer’s Certificate.

Section   9.02.      With Consent of Holders of Notes .

Except as provided below in this Section 9.02, the Company and the Trustee may amend or supplement this Indenture and the Notes with the consent of the Holders of at least a majority in principal amount of the Notes, including Additional Notes, if any, then outstanding voting as a single class (including consents obtained in connection with a purchase of or tender offer or exchange offer for the Notes), and, subject to Sections 6.04 and 6.07 hereof, any existing Default or Event of Default (except a continuing Default or Event of Default (i) in the payment of principal, premium, if any, or interest on the Notes and (ii) in respect of a covenant or provision which under this Indenture cannot be modified or amended without the consent of the Holder of each Note affected by such modification or amendment ) or compliance with any provision of this Indenture or the Notes may be waived with the consent of the Holders of at least a majority in principal amount of the Notes, including Additional Notes, if any, then outstanding voting as a single class (including consents obtained in connection with a purchase of or tender offer or exchange offer for the Notes).

It shall not be necessary for any instrument or resolution evidencing the consent of the Holders under this Section to approve the particular form of any proposed amendment or supplemental indenture, but it shall be sufficient if such instrument or resolution shall approve the substance thereof; provided , however, that the Trustee shall have the right to require an Opinion of Counsel to the effect that the proposed amendment or waiver conforms in substance to the consent of the Holders.

Without the consent of each Holder, an amendment or waiver under this Section 9.02 may not (with respect to any Notes held by a non-consenting Holder):

 

  (1) reduce the principal amount of Notes whose Holders must consent to an amendment, supplement or waiver;

 

  (2) reduce the principal of or change the Stated Maturity of any Note or alter the provisions with respect to the redemption of the Notes;

 

  (3) reduce the rate of or change the time for payment of interest on any Note;

 

  (4) waive a Default or Event of Default in the payment of principal of, or interest or premium, if any, on the Notes, except a rescission of acceleration of the Notes by the Holders of at least a majority in aggregate principal amount of the Notes and a waiver of the payment default that resulted from such acceleration;

 

  (5) make any Note payable in money other than that stated in the Notes;

 

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  (6) make any change in the provisions of this Indenture relating to waivers of past Defaults or the rights of Holders of Notes to receive payments of principal of, or interest or premium, if any, on the Notes, or to institute suit for the enforcement of any payment on or with respect to such Holders’ Notes or any Subsidiary Guarantee;

 

  (7) amend, change or modify the obligation of the Company to make and consummate an Asset Sale Offer with respect to any Asset Sale in accordance with the provisions of Section 4.12 hereof after the obligation to make and consummate such Asset Sale Offer has arisen or the obligation of the Company to make and consummate a Change of Control Offer in the event of a Change in Control Triggering Event in accordance with the provisions of Section 4.18 hereof after such Change of Control Triggering Event has occurred, including, in each case, amending, changing or modifying any definition relating thereto;

 

  (8) except as otherwise permitted under the provisions of Section 5.01 hereof, consent to the assignment or transfer by the Company or any Subsidiary Guarantor of any of their rights or obligations under this Indenture;

 

  (9) subordinate the Notes or any Subsidiary Guarantee to any other obligation of the Company or the applicable Subsidiary Guarantor;

 

  (10) amend or modify any Subsidiary Guarantee in a manner that would adversely affect the Holders of the Notes or release any Subsidiary Guarantor from any of its obligations under its Subsidiary Guarantee or this Indenture (except in accordance with the terms of this Indenture);

 

  (11) amend or modify the provisions of Section 4.20 hereof; or

 

  (12) make any change in the preceding amendment and waiver provisions.

The Company may, but shall not be obligated to, fix a record date for the purpose of determining the Persons entitled to consent to any supplemental indenture. If a record date is fixed, the Holders on such record date, or their duly designated proxies, and only such Persons, shall be entitled to consent to such supplemental indenture, whether or not such Holders remain Holders after such record date; provided that unless such consent shall have become effective by virtue of the requisite percentage having been obtained prior to the date which is 120 days after such record date, any such consent previously given shall automatically and without further action by any Holder be cancelled and of no further effect.

It shall not be necessary for the consent of the Holders under this Section 9.02 to approve the particular form of any proposed amendment or waiver, but it shall be sufficient if such consent approves the substance thereof.

After an amendment, supplement or waiver under this Section 9.02 becomes effective, the Company shall mail to the Holder of each Note affected thereby to such Holder’s address appearing in the Security Register a notice briefly describing the amendment, supplement or waiver. Any failure of the Company to mail such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such amended or supplemental indenture or waiver.

Section   9.03.      Revocation and Effect of Consents .

Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder is a continuing consent by the Holder of a Note and every subsequent Holder of a Note or portion thereof that evidences the same debt as the consenting Holder’s Note, even if notation of the consent is not made on any Note. However, any such Holder or subsequent Holder may revoke the consent as to its Note or portion thereof if the Trustee receives written notice of revocation before the date the waiver, supplement or amendment becomes effective. An amendment, supplement or waiver shall become effective in accordance with its terms and thereafter shall bind every Holder.

 

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Section   9.04.      Notation on or Exchange of Notes .

The Trustee may place an appropriate notation about an amendment, supplement or waiver on any Note thereafter authenticated. The Company in exchange for all Notes may issue and the Trustee shall, upon receipt of an Authentication Order, authenticate new Notes that reflect the amendment, supplement or waiver.

Failure to make the appropriate notation or issue a new Note shall not affect the validity and effect of such amendment, supplement or waiver.

Section   9.05.      Trustee to Sign Amendments, Etc .

The Trustee shall sign any amended or supplemental indenture authorized pursuant to this Article 9 if the amendment or supplement does not adversely affect the rights, duties, liabilities or immunities of the Trustee. The Company may not sign an amendment or supplemental indenture until the Board of Directors approves it. In executing any amended or supplemental indenture, the Trustee shall be entitled to receive and (subject to Section 7.01 hereof) shall be fully protected in relying upon an Officers’ Certificate and an Opinion of Counsel stating that the execution of such amended or supplemental indenture is authorized or permitted by this Indenture and that such amended or supplemental indenture is the legal, valid and binding obligations of the Company (and, if applicable, any guarantor hereunder and thereunder) enforceable against it (and any applicable guarantor) in accordance with its terms, subject to customary exceptions and that such amended or supplemental indenture complies with the provisions hereof.

ARTICLE 10.

SUBSIDIARY GUARANTEES

Section   10.01.      Guarantee .

Subject to this Article 10, each of the Subsidiary Guarantors hereby unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns (a) the due and punctual payment of the principal of, premium, if any, and interest on the Notes, subject to any applicable grace period, whether at maturity, by acceleration, redemption or otherwise, the due and punctual payment of interest on the overdue principal and premium, if any, and to the extent permitted by law, interest, and the due and punctual performance of all other obligations of the Company to the Holders or the Trustee hereunder or thereunder, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at maturity, by acceleration pursuant to Section 6.02 hereof, redemption or otherwise. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall be solidarily (jointly and severally) obligated to pay the same immediately. Each Subsidiary Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.

Each Subsidiary Guarantor hereby agrees that its obligations with regard to its Subsidiary Guarantee shall be solidary, unconditional, irrespective of the validity or enforceability of the Notes or the obligations of the Company under this Indenture, the absence of any action to enforce the same, the recovery of any judgment against the Company or any other obligor with respect to this Indenture, the Notes or the Obligations of the Company under this Indenture or the Notes, any action to enforce the same or any other circumstances (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Subsidiary Guarantor. Each Subsidiary Guarantor further, to the extent permitted by law, waives and relinquishes all claims, rights and remedies accorded by applicable law to guarantors and agrees not to assert or take advantage of any such claims, rights or remedies, including but not limited to: (a) any right to require any of the Trustee, the Holders or the Company (each a “ Benefited Party ”), as a condition of payment or performance by such Subsidiary Guarantor, to (1) proceed against the Company, any other guarantor (including any other Subsidiary Guarantor) of the Obligations under the Subsidiary Guarantees or any other Person, (2) proceed against or exhaust any security held from the Company, any such other guarantor or any other Person, (3) proceed against or have resort to any balance of any deposit account or credit on the books of any Benefited Party in favor of the Company or any other Person, or (4)

 

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pursue any other remedy in the power of any Benefited Party whatsoever; (b) any defense arising by reason of the incapacity, lack of authority or any disability or other defense of the Company including any defense based on or arising out of the lack of validity or the unenforceability of the Obligations under the Subsidiary Guarantees or any agreement or instrument relating thereto or by reason of the cessation of the liability of the Company from any cause other than payment in full of the Obligations under the Subsidiary Guarantees; (c) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal, and any defense or termination of its Subsidiary Guarantee pursuant to Article 2362 of the Civil Code; (d) any defense based upon any Benefited Party’s errors or omissions in the administration of the Obligations under the Subsidiary Guarantees, except behavior which amounts to bad faith; (e)(1) any principles or provisions of law, statutory or otherwise, which are or might be in conflict with the terms of the Subsidiary Guarantees and any legal or equitable discharge of such Subsidiary Guarantor’s obligations hereunder, (2) the benefit of any prescription of such Subsidiary Guarantor’s liability hereunder or the enforcement hereof, (3) any rights to set-offs, recoupments and counterclaims and (4) promptness, diligence and any requirement that any Benefited Party protect, secure, perfect or insure any security interest or lien or any property subject thereto; (f) notices, demands, presentations, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance of the Subsidiary Guarantees, notices of default under the Notes or any agreement or instrument related thereto, notices of any renewal, extension or modification of the Obligations under the Subsidiary Guarantees or any agreement related thereto, and notices of any extension of credit to the Company and any right to consent to any thereof; (g) any defenses or benefits that may be derived from or afforded by law which limit the liability of or exonerate guarantors or sureties, or which may conflict with the terms of the Subsidiary Guarantees, and (h) any rights to be provided information pursuant to Article 2345 of the Civil Code. Except to the extent expressly provided herein, including Sections 8.02, 8.03 and 10.05 hereof, each Subsidiary Guarantor hereby covenants that its Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in its Subsidiary Guarantee and this Indenture.

If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Subsidiary Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Subsidiary Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect.

Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Section 6.02 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby and (y) in the event of any declaration of acceleration of such obligations as provided in Section 6.02 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of this Subsidiary Guarantee. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Subsidiary Guarantee.

Each Subsidiary Guarantor hereby waives the benefits of discussion and division.

Section   10.02.      Limitation on Subsidiary Guarantor Liability .

Each Subsidiary Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Subsidiary Guarantee of such Subsidiary Guarantor not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to the extent applicable to any Subsidiary Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Subsidiary Guarantors hereby irrevocably agree that the obligations of such Subsidiary Guarantor under this Article 10 shall be limited to the maximum amount as shall, after giving effect to such maximum amount and all other contingent and fixed liabilities of such Subsidiary Guarantor that are relevant under such laws, including, if applicable, its guarantee of all obligations under the Credit Agreement, and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Subsidiary Guarantor in respect of the obligations of such other Subsidiary Guarantor under this Article 10, result in the obligations of such Subsidiary Guarantor under its Subsidiary Guarantee not constituting a fraudulent transfer or conveyance.

 

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Section   10.03.      Execution and Delivery of Subsidiary Guarantee .

To evidence its Subsidiary Guarantee set forth in Section 10.01 hereof, each Subsidiary Guarantor hereby agrees that a notation of such Subsidiary Guarantee in substantially the form included in Exhibit E attached hereto shall be endorsed by an Officer of such Subsidiary Guarantor on each Note authenticated and delivered by the Trustee and that this Indenture shall be executed on behalf of such Subsidiary Guarantor by its President or one of its Vice Presidents.

Each Subsidiary Guarantor hereby agrees that its Subsidiary Guarantee set forth in Section 10.01 hereof shall remain in full force and effect notwithstanding any failure to endorse on each Note a notation of such Subsidiary Guarantee.

If an Officer whose signature is on this Indenture or on the Subsidiary Guarantee no longer holds that office at the time the Trustee authenticates the Note on which a Subsidiary Guarantee is endorsed, the Subsidiary Guarantee shall be valid nevertheless.

The delivery of any Note by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of the Subsidiary Guarantee set forth in this Indenture on behalf of the Subsidiary Guarantors.

Section   10.04.      Subsidiary Guarantors May Consolidate, Etc., on Certain Terms .

Except as otherwise provided in Section 10.05 hereof, no Subsidiary Guarantor may consolidate, merge or amalgamate with or into (whether or not such Subsidiary Guarantor is the Surviving Guarantor) another Person whether or not affiliated with such Subsidiary Guarantor unless:

 

  (1) subject to Section 10.05 hereof, the Person formed by or surviving any such consolidation, merger or amalgamation (if other than a Subsidiary Guarantor or the Company) unconditionally assumes all the obligations of such Subsidiary Guarantor, pursuant to a supplemental indenture in form and substance reasonably satisfactory to the Trustee, under this Indenture and the Subsidiary Guarantee on the terms set forth herein or therein; and

 

  (2) the Subsidiary Guarantor or the Surviving Guarantor, as applicable, complies with the requirements of Article 5 hereof.

In case of any such consolidation, merger, amalgamation, sale or conveyance and upon the assumption by the successor Person, by supplemental indenture, executed and delivered to the Trustee and satisfactory in form to the Trustee, of the Subsidiary Guarantee endorsed upon the Notes and the due and punctual performance of all of the covenants and conditions of this Indenture to be performed by the Subsidiary Guarantor, such successor Person shall succeed to and be substituted for the Subsidiary Guarantor with the same effect as if it had been named herein as a Subsidiary Guarantor. Such successor Person thereupon may cause to be signed any or all of the Subsidiary Guarantees to be endorsed upon all of the Notes issuable hereunder which theretofore shall not have been signed by the Company and delivered to the Trustee. All the Subsidiary Guarantees so issued shall in all respects have the same legal rank and benefit under this Indenture as the Subsidiary Guarantees theretofore and thereafter issued in accordance with the terms of this Indenture as though all of such Subsidiary Guarantees had been issued at the date of the execution hereof.

Except as set forth in Articles 4 and 5 hereof, and notwithstanding clauses (1) and (2) above, nothing contained in this Indenture or in any of the Notes shall prevent any consolidation, merger or amalgamation of a Subsidiary Guarantor with or into the Company or another Subsidiary Guarantor, or shall prevent any sale or conveyance of the property of a Subsidiary Guarantor as an entirety or substantially as an entirety to the Company or another Subsidiary Guarantor.

 

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Section   10.05.      Releases Following Sale of Assets .

In the event of a sale or other disposition of all of the Capital Stock of any Subsidiary Guarantor (including by way of consolidation, merger or amalgamation), in each case to a Person that is not (either before or after giving effect to such transaction) an Affiliate of the Company, then such Subsidiary Guarantor shall be released and relieved of any obligations under its Subsidiary Guarantee; provided that such sale or other disposition shall be subject to all applicable provisions of this Indenture, including without limitation Section 4.12 hereof. If a Subsidiary Guarantor is designated as an Unrestricted Subsidiary in accordance with the provisions of Section 4.17 hereof, such Subsidiary Guarantor shall be released and relieved of any obligations under its Subsidiary Guarantee. Upon delivery by the Company to the Trustee of an Officers’ Certificate and an Opinion of Counsel to the effect that such sale or other disposition or designation was made by the Company in accordance with the provisions of this Indenture, including without limitation Section 4.12 hereof, the Trustee shall execute any documents reasonably required in order to evidence the release of any Subsidiary Guarantor from its obligations under its Subsidiary Guarantee.

Any Subsidiary Guarantor not released from its obligations under its Subsidiary Guarantee shall remain liable for the full amount of principal of and interest on the Notes and for the other obligations of any Subsidiary Guarantor under this Indenture.

ARTICLE 11.

SATISFACTION AND DISCHARGE

Section   11.01.      Satisfaction and Discharge .

This Indenture shall be discharged and shall cease to be of further effect, except as to surviving rights of registration of transfer or exchange of the Notes, as to all Notes issued hereunder, and the Trustee, on demand of and at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture, when:

 

  (1) either:

 

  (i) all Notes that have been previously authenticated (except lost, stolen or destroyed Notes that have been replaced or paid and Notes for whose payment money has previously been deposited in trust or segregated and held in trust by the Company and is thereafter repaid to the Company or discharged from the trust) have been delivered to the Trustee for cancellation; or

 

  (ii) all Notes that have not been previously delivered to the Trustee for cancellation (A) have become due and payable by reason of a making of a notice of redemption or otherwise or (B) will become due and payable within one year, and the Company or any Subsidiary Guarantor has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust solely for the benefit of the Holders, cash in Canadian dollars, non-callable Government Securities, or a combination thereof, in such amounts as will be sufficient without consideration of any reinvestment of interest, to pay and discharge the entire Indebtedness on the Notes not previously delivered to the Trustee for cancellation for principal, premium, and Additional Amounts, if any, and interest on the Notes to (but excluding) the date of deposit, in the case of Notes that have become due and payable, or to (but excluding) the Stated Maturity or redemption date, as the case may be;

 

  (2) no Default or Event of Default shall have occurred and be continuing on the date of such deposit or shall occur as a result of such deposit and such deposit will not result in a breach or violation of, or constitute a default under, any other instrument to which the Company or any Subsidiary Guarantor is a party or by which the Company or any Subsidiary Guarantor is bound;

 

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  (3) the Company or any Subsidiary Guarantor has paid or caused to be paid all other sums payable by it under this Indenture;

 

  (4) the Company shall have delivered irrevocable instructions to the Trustee to apply the deposited money toward the payment of the Notes at maturity or the date of redemption, as the case may be; and

 

  (5) the Company shall have delivered to the Trustee an Officers’ Certificate and Opinion of Counsel stating that all conditions precedent under this Indenture relating to the satisfaction and discharge of this Indenture have been satisfied.

Section   11.02.      Deposited Cash and Government Securities to be Held in trust, Other Miscellaneous Provisions .

Subject to Section 11.03 hereof, all cash and non-callable Government Securities (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this Section 11.02, the “ Trustee ”) pursuant to Section 11.01 hereof in respect of the outstanding Notes shall be held in trust and applied by the Trustee, in accordance with the provisions of such Notes and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as Paying Agent) as the Trustee may determine, to the Holders of such Notes of all sums due and to become due thereon in respect of principal, premium, if any, and interest but such cash and securities need not be segregated from other funds except to the extent required by law.

Section   11.03.      Repayment to Company .

Subject to any applicable laws relating to abandoned property, any cash or non-callable Government Securities deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal of, premium, if any, or interest on, any Note and remaining unclaimed for two years after such principal, and premium, if any, or interest has become due and payable shall be paid to the Company on its request or (if then held by the Company) shall be discharged from such trust; and the Holder shall thereafter, as an unsecured creditor, look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such cash and securities, and all liability of the Company as trustee thereof, shall thereupon cease; provided, however , that the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Company cause to be published once, in The Globe and Mail (national edition) and Le Journal de Montréal , notice that such cash and securities remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such notification or publication, any unclaimed balance of such cash and securities then remaining shall be repaid to the Company.

Section   11.04.      Release of Subsidiary Guarantors upon Satisfaction and Discharge of Indenture .

In the event the Company shall be irrevocably released from all of its obligations under this Indenture, each of the Subsidiary Guarantors shall also be released in respect of all of their respective obligations under the terms of this Indenture, the Notes or any Subsidiary Guarantee.

 

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ARTICLE 12.

MISCELLANEOUS

Section   12.01.      Notices .

Any notice or communication by the Company and/or a Subsidiary Guarantor or the Trustee to the other is duly given if in writing and delivered in person or mailed by first class mail (registered or certified, return receipt requested), delivered by way of electronic means (provided that a copy is also sent by facsimile or mailed by registered mail, return receipt requested), facsimile transmission or overnight air courier guaranteeing next-day delivery, to the other’s address:

If to the Company or a Subsidiary Guarantor:

Videotron Ltd.

612 St. Jacques Street

Montréal, Québec, H3C 4M8

Canada

Attention: Vice President, Legal Affairs

Facsimile No.: (514) 985-8834

E-mail: marc.tremblay@quebecor.com

With a copy to:

Norton Rose Fulbright Canada LLP

1 Place Ville-Marie

Suite 2500

Montreal, QC H3B 1R1

Attention: Peter J. Wiazowski

Facsimile No.: (514) 286-5474

E-mail: peter.wiazowski@nortonrosefulbright.com

If to the Trustee:

Computershare Trust Company of Canada

1500 University Street, 7th Floor

Montreal, Québec H3A 3S8

Attention: Manager, Corporate Trust Services

Facsimile No.: (514) 982-7677

The Company or the Trustee, by notice to the other, may designate additional or different addresses for subsequent notices or communications.

All notices and communications (other than those sent to the Trustee) shall be deemed to have been duly given: at the time delivered electronically, if delivered by way of electronic means; at the time delivered by hand, if personally delivered; five Business Days after being deposited in the mail, postage prepaid, if mailed; when receipt acknowledged, if sent by facsimile transmission; and the next Business Day after timely delivery to the courier, if sent by overnight air courier guaranteeing next-day delivery. All notices and communications to the Trustee shall be deemed duly given and effective only upon receipt.

Any notice or communication to a Holder shall be (i) mailed by first class mail, certified or registered, return receipt requested, or by overnight air courier guaranteeing next-day delivery to its address shown on the

 

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Security Register or (ii) provided by way of electronic means acceptable to the Trustee and the Depository jointly, as applicable. Failure to mail a notice or communication to a Holder or any defect in it shall not affect its sufficiency with respect to other Holders. Notwithstanding anything to the contrary contained in this Indenture, as long as the Notes are in the form of a Global Note, notice to the Holders shall be made electronically in accordance with procedures of the Depositary and shall be sufficiently given if so made in accordance with such procedures.

Notwithstanding any other provisions of this Indenture, the Trustee may, in its sole discretion, agree in writing to accept communications under, and agree to accept and act upon instructions or directions pursuant to, this Indenture sent by e-mail, facsimile transmission or other similar electronic methods, without the requirement for any copy to be sent by facsimile or mailed. If the party elects to give the Trustee e-mail or facsimile instructions (or instructions by a similar electronic method) and the Trustee in its discretion elects to act upon such instructions, the Trustee’s understanding of such instructions shall be deemed controlling. The party providing electronic communications, notices or instructions agrees to assume all risks arising out of the use of such electronic methods to submit instructions and directions to the Trustee, including the risk of the Trustee acting on unauthorized instructions, and the risk or interception and misuse by third parties.

If a notice or communication is given in the manner provided above within the time prescribed, it is duly given, whether or not the addressee receives it.

If the Company gives a notice or communication to Holders, it shall furnish a copy to the Trustee and each Agent at the same time.

Section   12.02.      Certificate and Opinion as to Conditions Precedent .

Upon any request or application by the Company to the Trustee to take any action under any provision of this Indenture, the Company shall furnish to the Trustee:

 

  (1) an Officers’ Certificate in form and substance reasonably satisfactory to the Trustee (which shall include the statements set forth in Section 12.03 hereof) stating that, in the opinion of the signers, all conditions precedent and covenants, if any, provided for in this Indenture relating to the proposed action have been complied with; and

 

  (2) an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee (which shall include the statements set forth in Section 12.03 hereof) stating that, in the opinion of such counsel, all such conditions precedent and covenants have been complied with.

Section   12.03.      Statements Required in Certificate or Opinion .

Each certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture shall include:

 

  (1) a statement that the Person making such certificate or opinion has read such covenant or condition;

 

  (2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;

 

  (3) a statement that, in the opinion of such Person, he or she has made such examination or investigation as is necessary to enable such Person to express an informed opinion as to whether or not such covenant or condition has been complied with; and

 

  (4) a statement as to whether or not, in the opinion of such Person, such condition or covenant has been complied with.

With respect to matters of fact, an Opinion of Counsel may rely on an Officers’ Certificate, certificates of public officials or reports or opinions of experts.

 

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Section   12.04.      Rules by Trustee and Agents .

The Trustee may make reasonable rules for action by or at a meeting of Holders. The Registrar or Paying Agent may make reasonable rules and set reasonable requirements for its functions.

Section   12.05.      No Personal Liability of Directors, Officers, Employees and Shareholders .

Subject to any applicable provisions of law which constitute provisions of public order, no past, present or future director, officer, employee, incorporator or shareholder of the Company or any Subsidiary Guarantor, as such, shall have any liability for any obligations of the Company or of the Subsidiary Guarantors under the Notes, this Indenture, the Subsidiary Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of Notes by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes.

Section   12.06.      Governing Law .

THE LAWS OF THE PROVINCE OF QUÉBEC AND THE LAWS OF CANADA APPLICABLE THEREIN SHALL GOVERN AND BE USED TO CONSTRUE THIS INDENTURE AND THE NOTES.

Section   12.07.      No Adverse Interpretation of Other Agreements .

This Indenture may not be used to interpret any other indenture, loan or debt agreement of the Company or its Subsidiaries or of any other Person. Any such indenture, loan or debt agreement may not be used to interpret this Indenture.

Section   12.08.      Successors .

All covenants and agreements of the Company in this Indenture and the Notes shall bind its successors. All covenants and agreements of the Trustee in this Indenture shall bind its successors.

Section   12.09.      Severability .

In case any provision in this Indenture or in the Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

Section   12.10.      Conversion of Currency .

The Company covenants and agrees that the following provisions shall apply to conversion of currency in the case of the Notes and this Indenture.

 

(1)   (i)   If, for the purpose of obtaining judgment in, or enforcing the judgment of, any court in any country, it becomes necessary to convert into a currency (the “ judgment currency ”) an amount due in any other currency (the “ Base Currency ”), then the conversion shall be made at the rate of exchange prevailing on the Business Day before the day on which the judgment is given or the order of enforcement is made, as the case may be (unless a court shall otherwise determine).
  (ii)   If there is a change in the rate of exchange prevailing between the Business Day before the day on which the judgment is given or an order of enforcement is made, as the case may be (or such other date as a court shall determine), and the date of receipt of the amount due, the Company shall pay such additional (or, as the case may be, such lesser) amount, if any, as may be necessary so that the amount paid in the judgment currency when converted at the rate of exchange prevailing on the date of receipt will produce the amount in the Base Currency originally due.

 

89


  (2) In the event of the winding-up of the Company at any time while any amount or damages owing under the Notes and this Indenture, or any judgment or order rendered in respect thereof, shall remain outstanding, the Company shall indemnify and hold the Holders and the Trustee harmless against any deficiency arising or resulting from any variation in rates of exchange between (1) the date as of which the equivalent of the amount in U.S. Dollars or Canadian Dollars, as the case may be, due or contingently due under the Notes and this Indenture (other than under this paragraph (2)) is calculated for the purposes of such winding-up and (2) the final date for the filing of proofs of claim in such winding-up. For the purpose of this paragraph (2), 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.

 

  (3) The obligations contained in paragraph (1)(ii) and (2) of this Section 12.10 shall constitute obligations of the Company separate and independent from its other respective obligations under the Notes and this Indenture, shall give rise to separate and independent causes of action against the Company, shall apply irrespective of any waiver or extension granted by any Holder or the Trustee or any of them from time to time and shall continue in full force and effect notwithstanding any judgment or order or the filing of any proof of claim in the winding-up of the Company for a liquidated sum in respect of amounts due hereunder (other than under paragraph (2) above) or under any such judgment or order. Any such deficiency as aforesaid shall be deemed to constitute a loss suffered by the Holders or the Trustee, as the case may be, and no proof or evidence of any actual loss shall be required by the Company or the liquidator or otherwise or any of them. In the case of paragraph (2) 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.

 

  (4) The term “rate(s) of exchange” shall mean the rate of exchange quoted by Royal Bank of Canada at its central foreign exchange desk in its head office in Montréal at 12:00 noon (Montréal, Québec time) for purchases of the Base Currency with the judgment currency other than the Base Currency referred to in Subsections (a) and (b) above and includes any premiums and costs of exchange payable.

 

  (5) The Trustee shall have no duty or liability with respect to monitoring or enforcing this Section 12.10.

Section   12.11.      Currency Equivalent

Except as provided in Section 12.10, for purposes of the construction of the terms of this Indenture or of the Notes, in the event that any amount is stated herein in the currency of one nation (the “ First Currency ”), as of any date such amount shall also be deemed to represent the amount in the currency of any other relevant nation which is required to purchase such amount in the First Currency at the rate of exchange quoted by Royal Bank of Canada at its central foreign exchange desk in its head office in Montréal at 12:00 noon (Montréal, Québec time) on the date of determination.

Section 12.12.     Privacy Matters

The parties acknowledge that federal and / or provincial legislation that addresses the protection of individuals’ personal information (collectively, “ Privacy Laws ”) applies to obligations and activities under this Indenture. None of the parties shall take or direct any action that would contravene applicable Privacy Laws. The Company shall, prior to transferring or causing to be transferred personal information to the Trustee, obtain and retain required consents of the relevant individuals to the collection, use and disclosure of their personal information, or shall have determined that such consents have previously been given upon which the parties can rely or are not required under the Privacy Laws. The Trustee shall use commercially reasonable efforts to ensure that its services hereunder comply with Privacy Laws. Specifically, the Trustee agrees: (i) to have a designated chief privacy officer; (ii) to maintain policies and procedures to protect personal information and to receive and respond to

 

90


any privacy complaint or inquiry; (iii) to use personal information solely for the purposes of providing its services under or ancillary to this Indenture and not to use it for any other purpose except with the consent of or direction from the Company or the individual involved; (iv) not to sell or otherwise improperly disclose personal information to any third party; and (v) to employ administrative, physical and technological safeguards to reasonably secure and protect personal information against loss, theft, or unauthorized access, use or modification.

Section   12.13.      Counterpart Originals

The parties may sign any number of copies of this Indenture. Each signed copy shall be an original, but all of them together represent the same agreement.

Section   12.14.      Table of Contents, Headings, Etc .

The Table of Contents, Cross-Reference Table and Headings in this Indenture have been inserted for convenience of reference only, are not to be considered a part of this Indenture and shall in no way modify or restrict any of the terms or provisions hereof.

Section   12.15.      Trust Indenture Legislation

 

  (1) In this Article 12, the expression “ indenture legislation ” means the provisions, if any, of any statute of Canada or any province thereof, and of any regulations under any such statute, relating to trust indentures and to the rights, duties and obligations of trustees under trust indentures and of corporations issuing debt obligations under trust indentures, to the extent that such provisions are in the Opinion of Counsel at the time in force and applicable to this Indenture or the Company.

 

  (2) The Company and the Trustee agree that each will at all times in relation to this Indenture and in relation to any action to be taken hereunder observe and comply with and be entitled to the benefits of the indenture legislation.

 

  (3) If and to the extent that any provision of this Indenture limits, qualifies or conflicts with any mandatory requirement of indenture legislation, such mandatory requirement shall prevail.

Section   12.16.      Language of Indenture, Etc .

The parties hereby acknowledge that they have expressly required this Indenture and all amendments thereto to be drawn up in the English language only. Any request, demand, authorization, direction, notice, consent, election or waiver required or permitted under this Indenture shall be in the English or French language. Les parties reconnaissent avoir expressément demandé que la présente convention de même que tous amendements soient rédigés en anglais seulement .

Section 12.17.     Force Majeure .

In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder or other document or agreement entered into in connection herewith arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services, it being understood that the Trustee shall use the efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.

Section 12.18.     Third Party Interests .

The Company represents to the Trustee that any account to be opened by, or interest to be held by, the Trustee in connection with this Indenture, for or to the credit of the Company, either (i) is not intended to be used by or on behalf of any third party; or (ii) is intended to be used by or on behalf of a third party, in which case the Company hereto agrees to complete and execute forthwith a declaration in the Trustee’s prescribed form as to the particulars of such third party.

 

91


Section 12.19.     Anti-money Laundering .

The Trustee shall retain the right not to act and shall not be liable for refusing to act if, due to a lack of information or for any other reason whatsoever, the Trustee, in its sole judgment, determines that such act might cause it to be in non-compliance with any applicable anti-money laundering, anti-terrorist or economic sanctions legislation, regulation or guideline. Further, should the Trustee, in its sole judgment, determine at any time that its acting under this Indenture has resulted in its being in non-compliance with any applicable anti-money laundering, anti-terrorist or economic sanctions legislation, regulation or guideline, then it shall have the right to resign on ten (10) days written notice to the Company, provided (i) that the Trustee’s written notice shall describe the circumstances of such non-compliance; and (ii) that if such circumstances are rectified to the Trustee’s satisfaction within such ten (10) day period, then such resignation shall not be effective.

ARTICLE 13.

MEETINGS OF HOLDERS OF NOTES

Section   13.01.      Purposes for which Meetings may be Called

A meeting of Holders of Notes may be called at any time and from time to time pursuant to this Article to make, give or take any request, demand, authorization, direction, notice, consent, waiver or other action authorized by this Indenture to be made, given or taken by Holders of Notes.

Section   13.02.      Call, Notice and Place of Meetings

 

  (1) The Trustee may and shall, at the request of the Company or the Holders pursuant to Section 13.02(2) at any time call a meeting of Holders of Notes for any purpose specified in Section 13.01, to be held at such time and at such place in the City of Montreal as the Trustee or, in case of its failure to act, the Company or the Holders calling the meeting, shall determine. Notice of every meeting of Holders of Notes, setting forth the time and the place of such meeting and in general terms the action(s) proposed to be taken at such meeting, shall be given to each Holder of outstanding Notes in the manner provided in this Indenture not less than 21 nor more than 50 days prior to the date fixed for the meeting.

 

  (2) In case at any time the Company, pursuant to a Board Resolution, or the Holders of at least 25% in principal amount of the outstanding Notes shall have requested the Trustee to call a meeting of Holders of Notes for any purpose specified in Section 13.01, by written request setting forth in reasonable detail the action(s) proposed to be taken at the meeting, and the Trustee shall not have either given the notice of such meeting or made the publication of the notice of such meeting within 21 days after receipt of such request or shall not thereafter proceed to cause the meeting to be held as provided herein, then the Company, or the Holders of outstanding Notes in the amount above specified, as the case may be, may determine the time and the place in the City of Montreal for such meeting and may call such meeting for such purposes by giving notice thereof as provided in subsection (a) of this Section.

Section 13.03.     Persons Entitled to Vote at Meetings

To be entitled to vote at any meeting of Holders of Notes, a Person shall be (a) a Holder of one or more outstanding Notes, or (b) a Person appointed by an instrument in writing as proxy for a Holder or Holders of one or more outstanding Notes by such Holder or Holders. The only Persons who shall be entitled to be present or to speak at any meeting of Holders shall be the Persons entitled to vote at such meeting and their counsel, any representatives of the Trustee and its counsel and any representatives of the Company and its counsel.

 

92


Section   13.04.      Quorum, Action

The Persons entitled to vote a majority in principal amount of the outstanding Notes shall constitute a quorum. In the absence of a quorum within 30 minutes of the time appointed for any such meeting, the meeting shall, if convened at the request of Holders of Notes, be dissolved. In any other case the meeting may be adjourned for a period of not less than 10 days as determined by the chairman of the meeting prior to the adjournment of such meeting. Notice of the reconvening of such adjourned meeting shall be given as provided in Section 13.02(1), except that such notice may be given not less than five days prior to the date on which the meeting is scheduled to be reconvened. The quorum at such adjourned meeting shall be the Persons then present and entitled to vote thereat and such quorum shall be expressly stated in such notice of the reconvening of such adjourned meeting.

At a meeting or an adjourned meeting duly reconvened and at which a quorum is present as aforesaid, any resolution and all matters (except as provided in Section 9.02 and except as otherwise stated in this Indenture) shall be effectively passed and decided if passed or decided by the Persons entitled to vote a majority in principal amount of outstanding Notes represented and voting at such meeting.

Any resolution passed or decision taken at any meeting of Holders of Notes duly held in accordance with this Article 13 shall (except as limited by Section 9.02) be binding on all the Holders of Notes, whether or not present or represented at the meeting (except in respect of any request, demand, authorization, direction, notice, consent, waiver or other action required, under the terms of this Indenture, to be made, given or taken by Holders of a greater principal amount of outstanding Notes).

Section 13.05.     Determination of Voting Rights; Conduct and Adjournment of Meetings

 

  (1) Notwithstanding any other provisions of this Indenture, the Trustee and the chairman of the meeting, or either of them, may make such reasonable regulations as it or he may deem advisable for any meeting or adjourned meeting of Holders of Notes in regard to proof of the holding of Notes and of the appointment of proxies and in regard to the appointment and duties of scrutineers, the submission and examination of proxies, certificates and other evidence of the right to vote, and such other matters concerning the conduct of the meeting as it or he shall deem appropriate. Except as otherwise permitted or required by any such regulations, the holding of any Notes shall be proved in the manner specified in Section 1.05 and the appointment of any proxy shall be proved in the manner specified in said Section 1.05 or by having the signature of the Person executing the proxy witnessed or guaranteed by any trust company, bank, banker or other Person, wherever situated, acceptable to the Trustee. Such regulations may provide that written instruments appointing proxies, regular on their face, may be presumed valid and genuine without the proof specified in said Section 1.05 or other proof.

 

  (2) The Trustee shall, by an instrument in writing, nominate a chairman of the meeting, unless the meeting shall have been called by the Company or by Holders of Notes as provided in Section 13.02(2), in which case the Company, or the Holders of Notes calling the meeting, as the case may be, shall in like manner nominate a chairman.

 

  (3) At any meeting each Holder of a Note, whether present in person or represented by proxy, shall be entitled to one vote for each $1,000 principal amount of Notes held by him; provided, however, that no vote shall be cast or counted at any meeting in respect of any Note challenged as not outstanding and ruled by the chairman of the meeting to be not outstanding. The chairman of the meeting shall have no right to vote, except as a Holder of a Note or as the proxy of a Holder of a Note.

 

  (4) Any meeting of Holders of Notes duly called pursuant to Section 13.02 at which a quorum is present may be adjourned from time to time by a resolution passed at such meeting and the meeting may be held as so adjourned without further notice.

 

93


Section   13.06.      Counting Votes and Recording Action of Meetings

The vote upon any resolution submitted to any meeting of Holders of Notes shall be by written ballots on which shall be subscribed the signatures of the Holders of Notes or of their representatives by proxy and such other information as may be required by the regulations made for the meeting, provided however, that the vote upon any resolution involving matters of a purely procedural nature shall be by way of show of hands. The chairman of the meeting shall appoint a secretary and may appoint a scrutineer or scrutineers to act at the meeting. A record, at least in triplicate, of the proceedings of each meeting of Holders of Notes shall be prepared by the secretary of the meeting and there shall be attached to said record the original reports of the scrutineers and affidavits by one or more persons having knowledge of the facts setting forth a copy of the notice of the meeting and showing that said notice was given as provided in Section 13.02 and, if applicable, Section 13.04. Each copy shall be signed and verified by the affidavits of the chairman and secretary of the meeting and one such copy shall be delivered to the Company and another to the Trustee to be preserved by the Trustee, the latter to have attached thereto the ballots voted at the meeting. Any record so signed and verified shall be conclusive evidence of the matters therein stated.

Section   13.07.      Distribution of Proxy Materials to Participants

 

  (1) For purposes of holding a meeting of Holders where the Book-Entry System is in effect, the Trustee shall promptly notify the Depositary and obtain therefrom a current Participants List.

 

  (2) Within five business days of receipt of such information by the Trustee, or within any shorter delay which might be imposed by a competent regulatory authority, the Trustee shall contact each Participant on the Participants List by mail to confirm the required number of copies (the “ Required Number ”) of proxy material or other documents relating to the meeting (the “ Proxy Material ”) which the Participant requires for the benefit of Indirect Participants. Within ten (10) business days of confirmation by the Participant of the Required Number, the Trustee shall arrange to have delivered to such Participant the Required Number of copies of the Proxy Material. It shall be the responsibility of each Participant on the Participants List to arrange for distribution of the Proxy Material to the Indirect Participants. Neither the Company nor the Trustee shall assume any liability for failure by a Participant to distribute the Proxy Material.

 

  (3) The Company and the Trustee understand that the Proxy Material will be sent to the Indirect Participants not less than twenty-one (21) nor more than fifty (50) days, or such other permitted delay under applicable corporate and securities regulations, before the date of the meeting.

 

  (4) Failure by a Participant to distribute the Proxy Material to Indirect Participants shall not affect the validity of the proceedings to be held at the meeting if notice of the meeting has been published by the Trustee at least twenty-one (21) days before the holding of such meeting in The Globe and Mail (national edition) and Le Journal de Montréal or if not less than 50% in the aggregate principal amount of outstanding Notes is represented at the meeting by Holders of Notes or their proxies.

 

  (5) To the extent that an omnibus proxy in form satisfactory to the Company has been delivered by the Depositary to the Company with respect to the matters to be voted on at a meeting of Holders delegating to Indirect Participants the right of the Depositary as sole registered holder of the Global Note(s) to vote on the matters before the meeting, the Company will recognize as votes of the registered Holder, votes expressed in person at the meeting by identified Indirect Participants and votes expressed by proxy by identified Indirect Participants.

[Signatures on following page]

 

94


SIGNATURES

Dated as of September 15, 2015.

 

C OMPANY :
VIDEOTRON LTD.
By:  

/s/ Hugues Simard

Name:   Hugues Simard
Title:   Senior Vice President and Chief Financial Officer
By:  

/s/ Chloé Poirier

Name:   Chloé Poirier
Title:   Vice President and Treasurer
S UBSIDIARY G UARANTORS :
VIDÉOTRON INFRASTRUCTURES INC.
By:  

/s/ Hugues Simard

Name:   Hugues Simard
Title:   Vice President, Finance
8487782 CANADA INC.
By:  

/s/ Hugues Simard

Name:   Hugues Simard
Title:   Vice President, Finance

 

[2026 Indenture Signature Page]


9227-2590 QUÉBEC INC.
By:  

/s/ Hugues Simard

Name:   Hugues Simard
Title:   Vice President, Finance
9230-7677 QUÉBEC INC.
By:  

/s/ Hugues Simard

Name:   Hugues Simard
Title:   Vice President, Finance
VIDEOTRON G.P. / VIDÉOTRON S.E.N.C.
By:  

/s/ Hugues Simard

Name:   Hugues Simard
Title:   Senior Vice President and Chief Financial Officer
VIDEOTRON L.P. / VIDÉOTRON S.E.C. by its
general partner 9230-7677 Quebec Inc.
By:  

/s/ Hugues Simard

Name:   Hugues Simard
Title:   Vice President, Finance
9293-6707 QUÉBEC INC.
By:  

/s/ Hugues Simard

Name:   Hugues Simard
Title:   Vice President, Finance

 

[2026 Indenture Signature Page]


4DEGREES COLOCATION INC. / 4DEGRÉS COLOCATION INC.
By:  

/s/ Hugues Simard

Name:   Hugues Simard
Title:   Vice President, Finance

 

[2026 Indenture Signature Page]


T RUSTEE :
COMPUTERSHARE TRUST COMPANY OF CANADA
By:  

/s/ Fabienne Pinatel

Name:   Fabienne Pinatel
Title:   Corporate Trust Officer
By:  

/s/ Ekaterini Galouzis

Name:   Ekaterini Galouzis
Title:   Associate Trust Officer

 

[2026 Indenture Signature Page]


EXHIBIT A

 

 

 

(Face of Note)

5.75% SENIOR NOTES DUE JANUARY 15, 2026

CUSIP                                 

ISIN                                  

$                                  

No.                                  

VIDEOTRON LTD.

promises to pay to CDS & CO., as nominee for CDS Clearing and Depository Services Inc., or its registered assigns, the principal sum of                                  Dollars ($                                  ) on January 15, 2026.

Interest Payment Dates: March 15 and September 15, commencing March 15, 2016.

Record Dates: March 1 and September 1.

IN WITNESS WHEREOF, the Company has caused this Note to be signed by its duly authorized officer.

 

VIDEOTRON LTD.
By:  

 

  Name:
  Title:

This is one of the [Global]

Notes referred to in the

within-mentioned Indenture:

 

COMPUTERSHARE TRUST COMPANY OF CANADA,
as Trustee
By:  

 

  Authorized Signatory
By:  

 

  Authorized Signatory

Dated                                   , 2015

 

A-1


(Back of Note)

5.75% SENIOR NOTES DUE JANUARY 15, 2026

[If this is a Global Note, insert:] [THIS CERTIFICATE IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF CDS CLEARING AND DEPOSITORY SERVICES INC. (“CDS”) TO VIDEOTRON LTD. (THE “ISSUER”) OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IN RESPECT THEREOF IS REGISTERED IN THE NAME OF CDS & CO., OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF CDS (AND ANY PAYMENT IS MADE TO CDS & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF CDS), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED HOLDER HEREOF, CDS & CO., HAS A PROPERTY INTEREST IN THE SECURITIES REPRESENTED BY THIS CERTIFICATE HEREIN AND IT IS A VIOLATION OF ITS RIGHTS FOR ANOTHER PERSON TO HOLD, TRANSFER OR DEAL WITH THIS CERTIFICATE.]

THIS NOTE AND THE GUARANTEES HEREOF (TOGETHER, THIS “SECURITY”) HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.

THE HOLDER OF THIS SECURITY BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN AGREES FOR THE BENEFIT OF VIDEOTRON LTD. (“VIDEOTRON”) NOT TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) WHICH IS ONE YEAR AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH VIDEOTRON OR ANY AFFILIATE OF VIDEOTRON WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), EXCEPT (A) TO VIDEOTRON OR ANY OF ITS SUBSIDIARIES, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”), TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A) THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES IN OFFSHORE TRANSACTIONS MEETING THE REQUIREMENTS OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN “ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT AND IN A MINIMUM PRINCIPAL AMOUNT OF THE SECURITIES OF $250,000 PURSUANT TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND FOR INVESTMENT PURPOSES ONLY AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION OF THE NOTES IN VIOLATION OF THE SECURITIES ACT, OR (F) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, AND, IN EACH CASE SUBJECT TO APPLICABLE STATE OR NON-U.S. LAW AND SUBJECT TO VIDEOTRON’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (I) PURSUANT TO CLAUSE (D), (E) OR (F) PRIOR TO THE RESALE RESTRICTION TERMINATION DATE TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM AND (II) TO REQUIRE THAT A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THIS NOTE IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.

 

A-2


CANADIAN RESALES LEGEND :

UNLESS PERMITTED UNDER SECURITIES LEGISLATION, THE HOLDER OF THIS SECURITY MUST NOT TRADE THIS SECURITY BEFORE THE DATE THAT IS 4 MONTHS AND A DAY AFTER THE LATER OF (I) SEPTEMBER 15, 2015, AND (II) THE DATE THAT THE ISSUER BECAME A REPORTING ISSUER IN ANY PROVINCE OR TERRITORY.

Capitalized terms used herein shall have the meanings assigned to them in the Indenture referred to below unless otherwise indicated.

1.     Interest . Videotron Ltd., a corporation under the laws of Québec (the “ Company ”), promises to pay interest (as defined in the Indenture) on the principal amount of this Note at 5.75% per annum until maturity. The Company shall pay interest semi-annually in arrears in equal installments (except as noted below) on March 15 and September 15 of each year, or if any such day is not a Business Day, on the next succeeding Business Day (each an “ Interest Payment Date ”). Interest on the Notes shall accrue from the most recent date to which interest has been paid or, if no interest has been paid, from the date of issuance; provided, however , that if there is no existing Default in the payment of interest, and if this Note is authenticated between a record date referred to on the face hereof and the next succeeding Interest Payment Date, interest shall accrue from such next succeeding Interest Payment Date; provided , further , that the first Interest Payment Date shall be March 15, 2016. The Company shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal and premium, if any, from time to time on demand at a rate that is 1% per annum in excess of the interest rate then in effect under the Indenture and this Note; it shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of interest (without regard to any applicable grace periods), from time to time on demand at the same rate to the extent lawful. In the case of the final interest period, if applicable (from September 15, 2025 to January 15, 2026), interest will be calculated on the basis of the actual number of days elapsed from September 15, 2025 to (but excluding) January 15, 2026 divided by 365. In the case of any other interest period that is shorter than a full semi-annual interest period due to redemption, interest will be calculated on the basis of a 365-day year and the actual number of days elapsed from (and including) the date of the previous interest payment to (but excluding) the interest payment date for such interest period. For the purposes of the Interest Act (Canada), whenever interest is computed on a basis of a year (the “deemed year”) which contains fewer days than the actual number of days in the calendar year of calculation, such rate of interest shall be expressed as a yearly rate for purposes of the Interest Act (Canada) by multiplying such rate of interest by the actual number of days in the calendar year of calculation and dividing it by the number of days in the deemed year.

2.     Method of Payment . The Company shall pay interest on the Notes (except defaulted interest) to the Persons in whose name this Note (or one or more Predecessor Notes) is registered at the close of business on the March 1 or September 1 next preceding the Interest Payment Date, even if such Notes are cancelled after such record date and on or before such Interest Payment Date, except as provided in Section 2.12 of the Indenture with respect to defaulted interest. The Notes shall be payable as to principal, premium, if any, and interest at the office or agency of the Company maintained for such purpose, or, at the option of the Company, payment of interest may be made by cheque mailed to the Holders at their addresses set forth in the Security Register; provided , however , that payment by wire transfer of immediately available funds shall be required with respect to principal of and interest and premium, if any, on, all Global Notes and all other Notes the Holders of which shall have provided wire transfer instructions to the Company or the Paying Agent. Such payment shall be in such coin or currency of Canada as at the time of payment is legal tender for payment of public and private debts.

3.     Paying Agent and Registrar . Initially, Computershare Trust Company of Canada, the Trustee under the Indenture, shall act as Paying Agent and Registrar. The Company may change any Paying Agent or Registrar without notice to any Holder. The Company or any of its Subsidiaries may act in any such capacity.

4.     Indenture . The Company issued the Notes under an Indenture dated as of September 15, 2015 (“ Indenture ”) among the Company, the guarantors party thereto (the “ Subsidiary Guarantors ”) and the Trustee. The terms of the Notes include those stated in the Indenture. The Notes are subject to all such terms, and Holders are referred to the Indenture for a statement of such terms. To the extent any provision of this Note conflicts with the express provisions of the Indenture, the provisions of the Indenture shall govern and be controlling.

 

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5.     Optional Redemption .

 

  (1) Except as set forth in clauses (2) to (4) of this Section 5, the Notes shall not be redeemable at the option of the Company prior to September 15, 2020. Beginning on September 15, 2020, the Company may redeem all or a part of the Notes, at once or over time, in accordance with Section 3.03 of the Indenture, at the redemption prices (expressed as percentages of principal amount) set forth below, plus accrued and unpaid interest thereon on the Notes redeemed, to (but excluding) the applicable redemption date (subject to the right of Holders of record on the relevant Regular Record Date to receive interest due on the relevant Interest Payment Date), if redeemed during the twelve-month period commencing on September 15 of the years indicated below:

 

Redemption Year

   Percentage  

2020

     102.875

2021

     101.917

2022

     100.958

2023 and thereafter

     100.000

 

  (2) At any time prior to September 15, 2018, the Company may on any one or more occasions redeem up to 35% of the aggregate principal amount of the Notes issued under the Indenture, in accordance with Section 3.03 of the Indenture, at a redemption price (expressed as a percentage of principal amount) equal to 105.75% of the principal amount thereof, plus accrued and unpaid interest thereon to (but excluding) the redemption date (subject to the right of Holders of record on the relevant Regular Record Date to receive interest due on the relevant Interest Payment Date) with the net cash proceeds of one or more Equity Offerings; provided, however , that (i) at least 65% of the aggregate principal amount of the Notes issued under this Indenture (excluding Notes held by the Company and its Subsidiaries) remain outstanding immediately following such redemption and (ii) any such redemption occurs within 90 days of the date of the closing of any such Equity Offering.

 

  (3) If the Company becomes obligated to pay any Additional Amounts because of a change in the laws or regulations of Canada or any Canadian Taxing Authority, or a change in any official position regarding the application or interpretation thereof, in either case that is publicly announced or becomes effective on or after the Issue Date, the Company may, at any time, redeem all, but not part, of the Notes at a price equal to 100% of the principal amount thereof, plus accrued and unpaid interest to (but excluding) the redemption date, provided that at any time that the aggregate principal amount of the Notes outstanding is greater than $20.0 million, any Holder of the Notes may, to the extent that it does not adversely affect the Company’s after-tax position, at its option, waive the Company’s compliance with the provisions of Section 4.20 of the Indenture with respect to such Holder’s Notes; provided, further , that if any Holder waives such compliance, the Company may not redeem that Holder’s Notes pursuant to Section 3.07(3) of the Indenture.

 

  (4) Prior to September 15, 2020, the Company may redeem the Notes, in whole or in part, in accordance with Section 3.03 of the Indenture, at a redemption price equal to the greater of (a) the Canada Yield Price and (b) 100% of the aggregate principal amount of Notes to be redeemed, plus, in each case, accrued and unpaid interest thereon to (but excluding) the redemption date.

 

  (5) Any prepayment pursuant to this Section 5 shall be made in accordance with the provisions of Sections 3.01 through 3.06 of the Indenture.

 

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6.     Mandatory Redemption . Except as set forth in Sections 4.12 and 4.18 of the Indenture, the Company shall not be required to make mandatory redemption or sinking fund payments with respect to, or offers to purchase, the Notes.

7.     Repurchase at Option of Holder .

 

  (1) Within 30 days following any Change of Control Triggering Event, the Company shall give notice to the Trustee and each Holder describing the transaction or transactions that constitute the Change of Control Triggering Event and shall make an offer to all Holders to repurchase all (equal to $1,000 or an integral multiple of $1,000 in excess thereof) of such Holder’s Notes at a purchase price in cash equal to 101% of the aggregate principal amount of the Notes repurchased, plus accrued and unpaid interest on the Notes repurchased to (but excluding) the purchase date in accordance with the procedures set forth in Sections 3.09 and 4.18 of the Indenture.

 

  (2) If the Company or a Restricted Subsidiary consummates any Asset Sales, it shall not be required to apply any Net Proceeds in accordance with the Indenture until the aggregate Excess Proceeds from all Asset Sales following the date the Notes are first issued exceeds US$100.0 million. Thereafter, the Company shall commence an Asset Sale Offer by applying the Excess Proceeds pursuant to Section 3.09 of the Indenture to purchase the maximum principal amount of Notes (including any Additional Notes) that may be purchased out of the Excess Proceeds at an offer price in cash equal to 100% of the principal amount thereof, plus accrued and unpaid interest, if any, to (but excluding) the Purchase Date in accordance with the procedures set forth in Section 3.09 of the Indenture. To the extent that the aggregate amount of Notes (including Additional Notes) tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company (or such Restricted Subsidiary) may apply such deficiency for any purpose not prohibited by the Indenture. If the aggregate principal amount of Notes surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis (subject to Notes being in denominations of $1,000 or integral multiples of $1,000 in excess thereof).

8.     Notice of Redemption . Notices of redemption shall be given at least 15 days but not more than 60 days before the redemption date to each Holder whose Notes are to be redeemed at its registered address. Notes in denominations larger than $1,000 may be redeemed in part but only in integral multiples of $1,000 in excess thereof, unless all of the Notes held by a Holder are to be redeemed. On and after the redemption date interest shall cease to accrue on Notes or portions thereof called for redemption.

9.     Denominations, Transfer, Exchange . The Notes are in registered form without coupons in denominations of $1,000 and integral multiples of $1,000 in excess thereof. This Note shall represent the aggregate principal amount of outstanding Notes from time to time endorsed hereon and the aggregate principal amount of Notes represented hereby may from time to time be reduced or increased, as appropriate, to reflect exchanges and redemptions. The transfer of Notes shall be registered and Notes shall be exchanged as provided in the Indenture. The Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and the Company may require a Holder to pay any taxes and fees required by law or permitted by the Indenture. The Company need not exchange or register the transfer of any Note or portion of a Note selected for redemption, except for the unredeemed portion of any Note being redeemed in part. Also, the Company need not exchange or register the transfer of any Notes for a period of 15 days before a selection of Notes to be redeemed or during the period between a record date and the corresponding Interest Payment Date.

10.     Persons Deemed Owners . The registered Holder of a Note shall be treated as its owner for all purposes. Notwithstanding the foregoing, it is understood that amounts withheld from the registered Holder and the determination of obligations under the Indenture to pay Additional Amounts shall in each case be determined with respect to the ultimate beneficial holder and not the registered Holder.

11.     Amendment, Supplement and Waiver . Subject to certain exceptions, the Company and the Trustee may amend or supplement the Indenture or the Notes with the consent of the Holders of at least a majority in principal amount of the then outstanding Notes, including Additional Notes, if any, voting as a single class

 

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(including consents obtained in connection with a purchase of or tender offer or exchange offer for the Notes), and, subject to Sections 6.04 and 6.07 of the Indenture, any existing Default or Event of Default (except a continuing Default or Event of Default (i) in the payment of principal, premium, if any, interest or Additional Amounts, if any, on the Notes and (ii) in respect of a covenant or provision which under the Indenture cannot be modified or amended without the consent of the Holder of each Note affected by such modification or amendment) or compliance with any provision of the Indenture or the Notes may be waived with the consent of the Holders of at least a majority in principal amount of the then outstanding Notes, including Additional Notes, if any, then outstanding voting as a single class (including consents obtained in connection with a purchase of or tender offer or exchange offer for the Notes). Without the consent of any Holder, the Company and the Trustee may amend or supplement the Indenture or the Notes to (a) cure any ambiguity, defect or inconsistency; (b) provide for uncertificated Notes in addition to or in place of certificated Notes; (c) provide for the assumption of the obligations of the Company and/or a Subsidiary Guarantor to Holders in the case of a merger, consolidation, or amalgamation or sale of all or substantially all of the assets of the Company and/or a Subsidiary Guarantor; provided, however , that the Company shall deliver to the Trustee an officers’ certificate and an opinion of counsel, each stating that such amalgamation, merger, consolidation, conveyance or transfer complies with this covenant and that all conditions precedent contained in this Indenture relating to such transaction have been complied with; (d) make any change that would provide any additional rights or benefits to the Holders or that does not adversely affect the legal rights under the Indenture of any such Holder; (e) add additional guarantees with respect to the Notes or release Subsidiary Guarantors from Subsidiary Guarantees as provided or permitted by the terms of the Indenture; (f) provide for the issuance of Additional Notes in accordance with the Indenture; or (g) conform the text of the Indenture or the Notes to any provision of the “Description of Notes” section in the Final Offering Memorandum for the Notes, dated September 10, 2015, to the extent that such provision in such “Description of Notes” section was intended to be a verbatim recitation of a provision of the Indenture or the Notes.

12.     Defaults and Remedies . Each of the following is an Event of Default under the Indenture: (a) default for 30 days in the payment when due of interest on, or with respect to, the Notes; (b) default in payment, when due at Stated Maturity, upon acceleration, redemption, required repurchase or otherwise, of the principal of, or premium, if any, on the Notes; (c) failure by the Company or any Restricted Subsidiary to comply with the provisions of Section 4.12, 4.18 or 5.01 of the Indenture; (d) failure by the Company for 90 days after written notice thereof has been given to the Company by the Trustee, or to the Company and the Trustee by the Holders of at least 25% of the aggregate principal amount of the Notes outstanding, to comply with the covenants or agreements in Section 4.03 of the Indenture; (e) failure by the Company or any Restricted Subsidiary for 60 days after written notice thereof has been given to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 25% of the aggregate principal amount of the Notes outstanding to comply with any of its other covenants or agreements in the Indenture; (f) default under any hypothec, mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any Indebtedness for money borrowed by the Company or any Restricted Subsidiary, or the payment of which is guaranteed by the Company or any Restricted Subsidiary, whether such Indebtedness or guarantee now exists, or is created after the Issue Date, if that default: (i) is caused by a failure to pay principal of, or interest or premium, if any, on, such Indebtedness when due at the final maturity of such Indebtedness (a “ Payment Default ”); or (ii) results in the acceleration of such Indebtedness prior to its Stated Maturity, and, in each case, the principal amount of any such Indebtedness, together with the principal amount of any other such Indebtedness under which there has been a Payment Default or the maturity of which has been so accelerated, aggregates US$25.0 million or more; (g) failure by the Company or any Restricted Subsidiary to pay final, non-appealable judgments aggregating in excess of US$25.0 million, which judgments are not paid, discharged or stayed for a period of 60 days; (h) any Subsidiary Guarantee of a Significant Subsidiary ceases, or the Subsidiary Guarantees of any group of Subsidiaries that, when taken together, would constitute a Significant Subsidiary cease, to be in full force and effect (other than in accordance with the terms of any such Subsidiary Guarantee) or any Subsidiary Guarantor that is a Significant Subsidiary denies or disaffirms its obligations under its Subsidiary Guarantee, or a group of Subsidiary Guarantors that, when taken together, would constitute a Significant Subsidiary deny or disaffirm their obligations under their respective Subsidiary Guarantees; and (i) certain events of bankruptcy, insolvency or reorganization affecting the Company or any of its Significant Subsidiaries that are Restricted Subsidiaries or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary.

If any Event of Default occurs and is continuing, the Trustee or the Holders of at least 25% in principal amount of the then outstanding Notes may declare all the Notes to be due and payable. Notwithstanding the

 

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foregoing, in the case of an Event of Default arising from certain events of bankruptcy or insolvency described in the Indenture, all outstanding Notes shall become due and payable without further action or notice. Holders may not enforce the Indenture or the Notes except as provided in the Indenture. Subject to certain limitations, Holders of at least a majority in aggregate principal amount of the then outstanding Notes may direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders notice of any continuing Default or Event of Default (except a Default or Event of Default relating to the payment of principal, premium, if any, or interest or Additional Amounts, if any) if it determines in good faith that withholding notice is in the interests of the Holders. The Holders of at least a majority in aggregate principal amount of the Notes then outstanding by notice to the Trustee may on behalf of the Holders of all of the Notes waive any existing Default or Event of Default and its consequences under the Indenture except a continuing Default or Event of Default in the payment of principal, premium, if any, or interest or Additional Amounts, if any. The Company is required to deliver to the Trustee annually a statement regarding compliance with the Indenture, and the Company is required upon becoming aware of any Default or Event of Default, to deliver to the Trustee a statement specifying such Default or Event of Default.

13.     No Recourse Against Others . No past, present or future director, officer, employee, incorporator or shareholder of the Company or of any Subsidiary Guarantor, as such, shall have any liability for any obligations of the Company or any Subsidiary Guarantor under the Indenture, the Notes, the Subsidiary Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. 

14.     Authentication . This Note shall not be valid until authenticated by the manual signature of the Trustee or an authenticating agent.

15.     CUSIP Numbers . Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Company has caused CUSIP numbers to be printed on the Notes and has directed the Trustee to use CUSIP numbers in notices of redemption or notices of Offers to Purchase as a convenience to Holders. No representation is made as to the correctness of such numbers either as printed on the Notes or as contained in any notice of redemption or notice of an Offer to Purchase and reliance may be placed only on the other identification numbers printed thereon and any such redemption or Offer to Purchase shall not be affected by any defect in or omission of such numbers.

The Company shall furnish to any Holder upon written request and without charge a copy of the Indenture. Requests may be made to: Videotron Ltd., 612 St. Jacques Street, Montréal, Québec H3C 4M8, Canada, Attention: Vice President, Legal Affairs.

16.     Governing Law . The laws of the Province of Québec and the laws of Canada applicable therein shall govern and be used to construe this Note.

 

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Option of Holder to Elect Purchase

If you want to elect to have this Note purchased by the Company pursuant to Section 4.12 or 4.18 of the Indenture, check the box below:

¨ Section 4.12

¨ Section 4.18

If you want to elect to have only part of the Note purchased by the Company pursuant to Section 4.12 or Section 4.18 of the Indenture, state the amount you elect to have purchased: $                                 

 

Date:                                                                               

  Your Signature:                                                                                   
  (Sign exactly as your name appears on the face of this Note)
  Tax Identification No.:                                                                       
  SIGNATURE GUARANTEE:
 

 

  Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Registrar in addition to, or in substitution for, STAMP.

 

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Assignment Form

To assign this Note, fill in the form below:

(I) or (we) assign and transfer this Note to

 

 
(Insert assignee’s social insurance, social security or other tax I.D. no.)
 
 
 
 
(Print or type assignee’s name, address and postal or zip code)

and irrevocably appoint                                                                                                                                                                                      as agent to transfer this Note on the books of the Company. The agent may substitute another to act for him.

 

 

Date:                                                                              

  Your Signature:                                                                              
  (Sign exactly as your name appears on the face of this Note)
  Signature Guarantee:                                                                      
  Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Registrar in addition to, or in substitution for, STAMP.

 

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SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE

The following exchanges of a part of this Global Note for an interest in another Global Note or for a Definitive Note, or exchanges of a part of another Global Note or Definitive Note for an interest in this Global Note, have been made:

 

Date of Exchange

 

Amount of
decrease in
Principal Amount
of this Global Note

 

Amount of increase
in Principal Amount
of this Global Note

 

Principal Amount
of this Global Note
following such
decrease (or
increase)

 

Signature of
authorized signatory
of Trustee or
Note Custodian

 

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EXHIBIT B

FORM OF CERTIFICATE OF TRANSFER

Videotron Ltd.

612 St. Jacques Street

Montréal, Québec H3C 4M8

Canada

Attention: Vice President, Legal Affairs

Computershare Trust Company of Canada

Attention: Manager, Corporate Trust Services

Facsimile No.: (514) 982-7677

Re: 5.75% Senior Notes due January 15, 2026

Reference is hereby made to the Indenture, dated as of September 15, 2015 (the “ Indenture ”), among Videotron Ltd., as issuer (the “ Company ”), the Subsidiary Guarantors party thereto and Computershare Trust Company of Canada, as trustee. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.

                                          , (the “ Transferor ”) owns and proposes to transfer the Note[s] or interest in such Note[s] specified in Annex A hereto, in the principal amount of $                                          in such Note[s] or interests (the “ Transfer ”), to                                          (the “ Transferee ”), as further specified in Annex A hereto. In connection with the Transfer, the Transferor hereby certifies that:

[CHECK ALL THAT APPLY]

1.   ¨   Check if Transferee will take delivery of a beneficial interest in the 144A Global Note or a Definitive Note Pursuant to Rule 144A. The Transfer is being effected pursuant to and in accordance with Rule 144A under the United States Securities Act of 1933, as amended (the “ 1933 Act ”), and, accordingly, the Transferor hereby further certifies that the beneficial interest or Definitive Note is being transferred to a Person that the Transferor reasonably believed and believes is purchasing the beneficial interest or Definitive Note for its own account, or for one or more accounts with respect to which such Person exercises sole investment discretion, and such Person and each such account is a “qualified institutional buyer” within the meaning of Rule 144A in a transaction meeting the requirements of Rule 144A and such Transfer is in compliance with any applicable blue sky securities laws of any state of the United States. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the 144A Global Note and/or the Definitive Note and in the Indenture and the 1933 Act.

2.   ¨   Check if Transferee will take delivery of a beneficial interest in the Canadian Placement Global Note or a Definitive Note pursuant to Regulation S and securities laws in Canada. The Transfer is being effected pursuant to and in accordance with securities laws and regulations in Canada, as applicable, and in accordance with Rule 903 or Rule 904 of Regulation S under the 1933 Act and, accordingly, the Transferor hereby further certifies that (i) the Transfer is in accordance with, or pursuant to an exemption from, or in a transaction not subject to, the dealer registration and prospectus requirements under any applicable securities laws in Canada, (ii) the Transfer is not being made to a Person in the United States and (x) at the time the buy order was originated, the Transferee was outside the United States or such Transferor and any Person acting on its behalf reasonably believed and believes that the Transferee was outside the United States or (y) the transaction was executed in, on or through the facilities of a designated offshore securities market and neither such Transferor nor any Person acting on its behalf knows that the transaction was prearranged with a buyer in the United States, (iii) no directed selling efforts have been made in contravention of the requirements of Rule 903(b) or Rule 904(a) of Regulation S under the 1933 Act, (iv) the transaction is not part of a plan or scheme to evade the registration requirements of the 1933 Act or applicable securities laws in Canada, (v) if the proposed Transfer is being made prior to the expiration of the Distribution Compliance Period, the transfer is not being made to a U.S. Person or for the account or benefit of a U.S. Person

 

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(other than a “distributor” within the meaning of Regulation S under the 1933 Act) and (vi) if a Definitive Note is to be issued in respect of a beneficial interest in a Canadian Placement Global Note, the Transferor certifies that either it is not a U.S. person or that it acquired the Notes in a transaction that did not require registration under the 1933 Act. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Canadian Placement Global Note and/or the Definitive Note and in the Indenture and the 1933 Act.

3.   ¨   Check and complete if Transferee will take delivery of a Definitive Note pursuant to any provision of the 1933 Act other than Rule 144A or Regulation S (and applicable securities laws and regulations in Canada). The Transfer is being effected in compliance with the transfer restrictions applicable to beneficial interests in Restricted Global Notes and Restricted Definitive Notes and (i) the Transfer is in accordance with, or pursuant to an exemption from, or in a transaction not subject to, the dealer registration and prospectus requirements under any applicable securities laws in Canada, and (ii) the Transfer is being effected pursuant to and in accordance with the 1933 Act and any applicable blue sky securities laws of any state of the United States, and accordingly the Transferor hereby further certifies that (check one):

 

  (a)   ¨    such Transfer is being effected pursuant to and in accordance with Rule 144 under the 1933 Act;

 

  or

 

  (b)   ¨    such Transfer is being effected to the Company or a Subsidiary thereof;

 

  or

 

  (c)   ¨    such Transfer is being effected pursuant to an effective registration statement under the 1933 Act and in compliance with the prospectus delivery requirements of the 1933 Act;

 

  or

 

  (d)   ¨    such Transfer is being effected to an Institutional Accredited Investor and pursuant to an exemption from the registration requirements of the 1933 Act other than Rule 144A, Rule 144 or Rule 904, and the Transferor hereby further certifies that it has not engaged in any general solicitation or general advertising within the meaning of Regulation D under the 1933 Act and the Transfer complies with the transfer restrictions applicable to beneficial interests in a Restricted Global Note or Restricted Definitive Notes and the requirements of the exemption claimed, which certification is supported by (1) a certificate executed by the Transferee in the form of Exhibit D to the Indenture and (2) if such Transfer is in respect of a principal amount of Notes at the time of transfer of less than US$250,000, an Opinion of Counsel provided by the Transferor or the Transferee (a copy of which the Transferor has attached to this certification), to the effect that such Transfer is in compliance with the 1933 Act. Upon consummation of the proposed transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Definitive Notes and in the Indenture and the 1933 Act.

4.   ¨    Check if Transferee will take delivery of a beneficial interest in an Unrestricted Global Note or of an Unrestricted Definitive Note.

(a)   ¨    Check if Transfer is pursuant to Rule 144 . (i) The Transfer is being effected pursuant to and in accordance with Rule 144 under the 1933 Act and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any state of the United States and (ii) the restrictions on transfer contained in the Indenture and the 144A Legend are not required in order to maintain compliance with the 1933 Act. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will no longer be subject to the restrictions on transfer enumerated in the 144A Legend printed on the Restricted Global Notes, on Restricted Definitive Notes and in the Indenture.

 

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(b)   ¨    Check if Transfer is Pursuant to Regulation S . (i) The Transfer is being effected pursuant to and in accordance with Rule 903 or Rule 904 under the 1933 Act and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any state of the United States and (ii) the restrictions on transfer contained in the Indenture and the 144A Legend are not required in order to maintain compliance with the 1933 Act. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will no longer be subject to the restrictions on transfer enumerated in the 144A Legend printed on the Restricted Global Notes, on Restricted Definitive Notes and in the Indenture.

(c)   ¨    Check if Transfer is Pursuant to Other Exemption . (i) The Transfer is being effected pursuant to and in compliance with an exemption from the registration requirements of the 1933 Act other than Rule 144, Rule 903 or Rule 904 and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any state of the United States and (ii) the restrictions on transfer contained in the Indenture and the 144A Legend are not required in order to maintain compliance with the 1933 Act. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will not be subject to the restrictions on transfer enumerated in the 144A Legend printed on the Restricted Global Notes or Restricted Definitive Notes and in the Indenture.

In any case under this Item 4 in which a Definitive Note is to be issued in respect of a beneficial interest in a Canadian Placement Global Note, the Transferor certifies that either it is not a U.S. person or that it acquired the Notes in a transaction that did not require registration under the 1933 Act.

This certificate and the statements contained herein are made for your benefit and the benefit of the Company.

 

 

[Insert Name of Transferor]
By:  

 

  Name:
  Title:
Dated:  

 

 

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ANNEX A TO CERTIFICATE OF TRANSFER

 

1. The Transferor owns and proposes to transfer the following:

[CHECK ONE OF (a) OR (b)]

 

  (a) ¨     a beneficial interest in the:

 

  (i) ¨      144A Global Note (CUSIP 92660FAH7), or

 

  (ii) ¨      Canadian Placement Global Note (CUSIP 92660FAJ3), or

 

  (b) ¨      a Restricted Definitive Note.

 

2. After the Transfer the Transferee will hold:

[CHECK ONE OF (a), (b) OR (c)]

 

  (a) ¨      a beneficial interest in the:

 

  (i) ¨      144A Global Note (CUSIP 92660FAH7), or

 

  (ii) ¨      Canadian Placement Global Note (CUSIP 92660FAJ3), or

 

  (iii) ¨      Unrestricted Global Note; or

 

  (b) ¨      a Restricted Definitive Note; or

 

  (c) ¨      an Unrestricted Definitive Note,

in accordance with the terms of the Indenture.

 

B-4


EXHIBIT C

FORM OF CERTIFICATE OF EXCHANGE

Videotron Ltd.

612 St. Jacques Street

Montréal, Québec H3C 4M8

Canada

Attention: Vice President, Legal Affairs

Computershare Trust Company of Canada

Attention: Manager, Corporate Trust Services

Facsimile No.: (514) 982-7677

Re: 5.75% Senior Notes due January 15, 2026

Reference is hereby made to the Indenture, dated as of September 15, 2015 (the “ Indenture ”), among Videotron Ltd., as issuer (the “ Company ”), the Subsidiary Guarantors party thereto and Computershare Trust Company of Canada, as trustee. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.

__________________________, (the “ Owner ”) owns and proposes to exchange the Note[s] or interest in such Note[s] specified herein, in the principal amount of $____________ in such Note[s] or interests (the “ Exchange ”). In connection with the Exchange, the Owner hereby certifies that:

1. Exchange of Restricted Definitive Notes or Beneficial Interests in a Restricted Global Note for Unrestricted Definitive Notes or Beneficial Interests in an Unrestricted Global Note

(a)     ¨     Check if Exchange is from beneficial interest in a Restricted Global Note to beneficial interest in an Unrestricted Global Note . In connection with the Exchange of the Owner’s beneficial interest in a Restricted Global Note for a beneficial interest in an Unrestricted Global Note in an equal principal amount, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Restricted Global Note and pursuant to and in accordance with applicable securities laws and regulations in Canada and with the United States Securities Act of 1933, as amended (the “ 1933 Act ”), (iii) the restrictions on transfer contained in the Indenture and the 144A Legend are not required in order to maintain compliance with the 1933 Act and (iv) the beneficial interest in an Unrestricted Global Note is being acquired in compliance with applicable securities laws and regulations in Canada and with any applicable blue sky securities laws of any state of the United States.

(b)     ¨     Check if Exchange is from beneficial interest in a Restricted Global Note to Unrestricted Definitive Note . In connection with the Exchange of the Owner’s beneficial interest in a Restricted Global Note for an Unrestricted Definitive Note, the Owner hereby certifies (i) the Unrestricted Definitive Note is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Restricted Global Note and pursuant to and in accordance with applicable securities laws and regulations in Canada and with the 1933 Act, (iii) the restrictions on transfer contained in the Indenture and the 144A Legend are not required in order to maintain compliance with the 1933 Act and (iv) the Unrestricted Definitive Note is being acquired in compliance with applicable securities laws and regulations in Canada and with any applicable blue sky securities laws of any state of the United States.

(c)     ¨     Check if Exchange is from Restricted Definitive Note to beneficial interest in an Unrestricted Global Note . In connection with the Owner’s Exchange of a Restricted Definitive Note for a beneficial interest in an Unrestricted Global Note, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to Restricted Definitive Notes and pursuant to and in accordance with applicable securities laws and regulations in Canada and with the 1933 Act, (iii) the restrictions on transfer contained in the Indenture and the 144A Legend are not required in order to maintain compliance with the 1933 Act and (iv) the beneficial interest is being acquired in compliance with applicable securities laws and regulations in Canada and with any applicable blue sky securities laws of any state of the United States.

 

C-1


(d)     ¨     Check if Exchange is from Restricted Definitive Note to Unrestricted Definitive Note . In connection with the Owner’s Exchange of a Restricted Definitive Note for an Unrestricted Definitive Note, the Owner hereby certifies (i) the Unrestricted Definitive Note is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to Restricted Definitive Notes and pursuant to and in accordance with applicable securities laws and regulations in Canada and with the 1933 Act, (iii) the restrictions on transfer contained in the Indenture and the 144A Legend are not required in order to maintain compliance with the 1933 Act and (iv) the Unrestricted Definitive Note is being acquired in compliance with applicable securities laws and regulations in Canada and with any applicable blue sky securities laws of any state of the United States.

2. Exchange of Restricted Definitive Notes or Beneficial Interests in Restricted Global Notes for Restricted Definitive Notes or Beneficial Interests in Restricted Global Notes

(a)     ¨     Check if Exchange is from beneficial interest in a Restricted Global Note to Restricted Definitive Note . In connection with the Exchange of the Owner’s beneficial interest in a Restricted Global Note for a Restricted Definitive Note with an equal principal amount, the Owner hereby certifies that the Restricted Definitive Note is being acquired for the Owner’s own account without transfer. Upon consummation of the proposed Exchange in accordance with the terms of the Indenture, the Restricted Definitive Note issued will continue to be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Definitive Note and in the Indenture as well as the applicable restrictions on transfer under the 1933 Act and securities laws and regulations in Canada, as applicable.

(b)     ¨     Check if Exchange is from Restricted Definitive Note to beneficial interest in a Restricted Global Note . In connection with the Exchange of the Owner’s Restricted Definitive Note for a beneficial interest in the [CIRCLE ONE] 144A Global Note, Canadian Placement Global Note with an equal principal amount, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owner’s own account without transfer and (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Restricted Definitive Note and pursuant to and in accordance with the 1933 Act, and in compliance with applicable securities laws and regulations in Canada and with any applicable blue sky securities laws of any state of the United States. Upon consummation of the proposed Exchange in accordance with the terms of the Indenture, the beneficial interest issued will be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the relevant Restricted Global Note and in the Indenture, the 1933 Act and applicable securities laws and regulations in Canada.

In any case under this Item 2 in which a Definitive Note is to be issued in respect of a beneficial interest in a Canadian Placement Global Note, the Owner certifies that either it is not a U.S. person or that it acquired the Notes in a transaction that did not require registration under the 1933 Act.

 

C-2


This certificate and the statements contained herein are made for your benefit and the benefit of the Company.

 

 
 

[Insert Name of Transferor]

 

By:  

 

  Name:
  Title:

 

Dated:

 

 

 

 

C-3


EXHIBIT D

FORM OF CERTIFICATE FROM ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR

Videotron Ltd.

612 St. Jacques Street

Montréal, Québec H3C 4M8

Canada

Attention: Vice President, Legal Affairs

Computershare Trust Company of Canada

Attention: Manager, Corporate Trust Services

Facsimile No.: (514) 982-7677

Re: 5.75% Senior Notes due January 15, 2026

Reference is hereby made to the Indenture, dated as of September 15, 2015 (the “ Indenture ”), among Videotron Ltd., as issuer (the “ Company ”), the Subsidiary Guarantors party thereto and Computershare Trust Company of Canada, as trustee. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.

In connection with our proposed purchase of $____________ aggregate principal amount of:

(a)     ¨     a beneficial interest in a Global Note, or

(b)     ¨     a Definitive Note,

we confirm that:

1.    We understand that any subsequent transfer of the Notes or any interest therein is subject to certain restrictions and conditions set forth in the Indenture and the undersigned agrees to be bound by, and not to resell, pledge or otherwise transfer the Notes or any interest therein except in compliance with, such restrictions and conditions and in compliance with any applicable securities laws and regulations in Canada and the United States Securities Act of 1933, as amended (the “ 1933 Act ”) and applicable state securities laws.

2.    We understand that the offer and sale of the Notes have not been registered under the 1933 Act, that the Notes were offered and sold on a private placement or exempt distribution basis in one or more provinces of Canada, and that the Notes and any interest therein may not be offered or sold except as permitted in the following sentence. We agree that if we should sell the Notes or any interest therein, we will do so only (A) pursuant to offers and sales to non-U.S. persons that occur outside the United States in transactions that are in accordance with, or pursuant to an exemption from, the dealer registration and prospectus requirements of applicable securities laws and regulations in Canada, and in accordance with Rule 904 of Regulation S under the 1933 Act, (B) to the Company or any subsidiary thereof, (C) in accordance with Rule 144A under the 1933 Act to a “qualified institutional buyer” (as defined therein) that purchases for its own account or for the account of a qualified institutional buyer to whom notice is given that the transfer is being made in reliance on Rule 144A under the 1933 Act, (D) to an institutional “accredited investor” (as defined below) that, prior to such transfer, furnishes (or has furnished on its behalf by a U.S. broker-dealer) to you and to the Company a signed letter substantially in the form of this letter and, such transfer is in respect of a minimum principal amount of Notes of US$250,000, (E) pursuant to any other available exemption under the 1933 Act or (F) pursuant to an effective registration statement under the 1933 Act, and we further agree to provide to any Person purchasing the Definitive Note or beneficial interest in a Global Note from us in a transaction meeting the requirements of clauses (A) through (E) of this paragraph a notice advising such purchaser that resales thereof are restricted as stated herein.

 

D-1


3.    We understand that, on any proposed resale of the Notes or beneficial interest therein, we will be required to furnish to you and the Company such certifications, legal opinions and other information as you and the Company may reasonably require to confirm that the proposed sale complies with the foregoing restrictions. We further understand that the Notes purchased by us will bear a legend to the foregoing effect.

4.    We are an institutional “accredited investor” (as defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the 1933 Act) and have such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of our investment in the Notes, and we are able to bear the economic risk of our investment. We have had access to such financial and other information and have been afforded the opportunity to ask such questions of representatives of the Company and receive answers thereto, as we deem necessary in connection with our decision to purchase the Notes.

5.    We are acquiring the Notes or beneficial interest therein purchased by us for our own account for investment purposes only and are not acquiring the Notes with a view to any distribution thereof in a transaction that would violate the 1933 Act or the securities laws of Canada, any province thereof, any state of the United States or any other applicable jurisdiction.

You and the Company are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby. This letter shall be governed by, and construed in accordance with, the laws of the State of New York.

 

 

 

[Insert Name of Accredited Investor]

 

By:  

 

  Name:
  Title:

Dated:                                                      

 

D-2


EXHIBIT E

FORM OF NOTATION OF GUARANTEE

For value received, each Subsidiary Guarantor (which term includes any successor Person under the Indenture), solidarily (jointly and severally), hereby unconditionally guarantees, to the extent set forth in the Indenture and subject to the provisions in the Indenture, dated as of September 15, 2015 (the “ Indenture ”), among Videotron Ltd., as issuer (the “ Company ”), the Subsidiary Guarantors listed on the signature pages thereto and Computershare Trust Company of Canada, as trustee (the “ Trustee ”), (a) the due and punctual payment of the principal of, premium, if any, and interest and Additional Amounts, if any, on the Notes, whether at maturity, by acceleration, redemption or otherwise, the due and punctual payment of interest on overdue principal and premium, if any, and, to the extent permitted by law, interest and Additional Amounts, if any, and the due and punctual performance of all other obligations of the Company to the Holders or the Trustee under the Notes and the Indenture, all in accordance with the terms of the Notes and the Indenture; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at maturity, by acceleration pursuant to Section 6.02 of the Indenture, redemption or otherwise. Each Subsidiary Guarantor hereby waives the benefits of discussion and division. The obligations of the Subsidiary Guarantors to the Holders of Notes and to the Trustee pursuant to the Subsidiary Guarantee and the Indenture are expressly set forth in Article 10 of the Indenture and reference is hereby made to the Indenture for the precise terms of the Subsidiary Guarantee. Except to the extent provided in the Indenture, including Sections 8.02, 8.03 and 10.05 thereof, this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained herein and in the Indenture. Each Holder of a Note, by accepting the same agrees to and shall be bound by such provisions. Capitalized terms used herein and not defined are used herein as so defined in the Indenture.

 

[NAME OF GUARANTOR]
By:  

 

  Name:
  Title:

 

E-1


EXHIBIT F

FORM OF SUBORDINATION AGREEMENT

This SUBORDINATION AGREEMENT is dated as of                      (the “Agreement”).

 

To: Computershare Trust Company of Canada, for itself and as trustee under the Indenture referred to below for the holders of the Notes (the “Trustee”)

[OBLIGOR] (the “Obligor”), as obligor under the obligation dated as of                      made or issued by the Obligor in favor of [HOLDER] (the “Subordinated Security”), and [HOLDER], as holder (the “Holder”) of the Subordinated Security, for ten dollars and other good and valuable consideration received by each of the Obligor and the Holder from the Trustee and any other Representative and by each of the Obligor and the Holder from the other, agree as follows:

 

  (1) Interpretation .

(a) “ Cash, Property or Securities ”. “Cash, Property or Securities” shall not be deemed to include securities of the Obligor or any other Person provided for by a plan of reorganization or readjustment, the payment of which is subordinated at least to the extent provided herein with respect to the Subordinated Security, to the payment of all Senior Indebtedness which may at the time be outstanding; provided, however, that (i) all Senior Indebtedness is assumed by the new Person, if any, resulting from any such reorganization or readjustment, and (ii) the rights of the holders of the Senior Indebtedness are not, without the consent of such holders, altered by such reorganization or readjustment.

(b) “ payment in full ”. “payment in full”, with respect to Senior Indebtedness, means the receipt on an irrevocable basis of cash in an amount equal to the unpaid principal amount of the Senior Indebtedness and premium, if any, and interest thereon to the date of such payment, together with all other amounts owing with respect to such Senior Indebtedness.

(c) “Representative” means the agent (including an administrative agent), trustee or representative of holders of Senior Indebtedness.

(d) “ Senior Indebtedness ”. “Senior Indebtedness” means, at any date, all indebtedness (including, without limitation, any and all amounts of principal, interest, special interest, additional amounts, premium, fees, penalties, indemnities and “post-petition interest” in bankruptcy and any reimbursement of expenses) under (1) the indenture, dated as of September 15, 2015 (the “Indenture”), among Videotron Ltd. (“Videotron”), the guarantors thereto and Computershare Trust Company of Canada, as Trustee, including, without limitation, the “Notes”, the “Subsidiary Guarantees”, the “Additional Notes” and any “guarantee” of the Additional Notes (in each case, as defined in the Indenture), (2) the indenture, dated as of April 9, 2014 (the “2014 Indenture”), among Videotron, the guarantors thereto and Wells Fargo Bank, National Association, as Trustee, including, without limitation, the “Notes”, the “Subsidiary Guarantees”, the “Exchange Notes”, the “Additional Notes” and any “guarantee” of the Exchange Notes or the Additional Notes (in each case, as defined in the 2014 Indenture), (3) the indenture, dated as of June 17, 2013 (the “2013 Indenture”), among Videotron, the guarantors thereto and Computershare Trust Company of Canada, as Trustee, including, without limitation, the “Notes”, the “Subsidiary Guarantees”, the “Additional Notes” and any “guarantee” of the Additional Notes (in each case, as defined in the 2013 Indenture), (4) the indenture, dated as of March 14, 2012 (the “2012 Indenture”), among Videotron, the guarantors thereto and Wells Fargo Bank, National Association, as Trustee, including, without limitation, the “Notes”, the “Subsidiary Guarantees”, the “Exchange Notes”, the “Additional Notes” and any “guarantee” of the Exchange Notes or the Additional Notes (in each case, as defined in the 2012 Indenture), (5) the indenture, dated as of July 5, 2011, as supplemented by the first supplemental indenture, dated as of November 4, 2011, the second supplemental indenture, dated as of December 5, 2011 (the “2011 Indenture”), among Videotron, the guarantors thereto and Computershare Trust Company of Canada, as Trustee, including, without limitation, the “Notes”, the “Subsidiary Guarantees”, the “Additional Notes” and any “guarantee” of the Additional Notes (in each case, as defined in the 2011 Indenture) and (6) any Credit Facilities (as defined in the Indenture) of Videotron. All references herein to holder of the Senior Indebtedness shall be interpreted as references to the Holders thereof (as defined in the Indenture).

 

i


  (2) Agreement Entered into Pursuant to Indenture . The Obligor and the Holder are entering into this Agreement pursuant to the provisions of the Indenture; capitalized terms used herein without definition having the meanings set forth therein) among Videotron, the Subsidiary Guarantors and the Trustee. Pursuant to the Indenture, Videotron has issued and the Subsidiary Guarantors have guaranteed, 5.75% Senior Notes due January 15, 2026 of Videotron.

 

  (3) Subordination . The indebtedness or obligation represented by the Subordinated Security shall be subordinated as follows:

(a) Agreement to Subordinate . The Obligor, for itself and its successors and assigns, and the Holder agree, that the indebtedness or obligation evidenced by the Subordinated Security (including, without limitation, principal, interest, premium, redemption or retraction amount, dividend, fees, penalties, indemnities and “post-petition interest” in bankruptcy and any reimbursement of expenses) is subordinate and junior in right of payment, to the extent and in the manner provided in this Section 3, to the prior payment in full of all Senior Indebtedness. The provisions of this Section 3 are for the benefit of the Trustee and/or other Representative acting on behalf of the holders from time to time of Senior Indebtedness, and such holders are hereby made obligees hereunder to the same extent as if their names were written herein as such, and they (collectively or singly) may proceed to enforce such provisions.

(b) Liquidation, Dissolution or Bankruptcy .

 

  (i) Upon any distribution of assets of the Obligor to creditors or upon a liquidation or dissolution or winding-up of the Obligor or in a bankruptcy, arrangement, liquidation, reorganization, insolvency, receivership or similar case or proceeding relating to the Obligor or its property or other marshalling of assets of the Obligor:

 

  (A) the holders of Senior Indebtedness shall be entitled to receive payment in full of all Senior Indebtedness before the Holder shall be entitled to receive any payment of any amount owing in respect of the Subordinated Security (including, without limitation, principal, interest, premium, redemption or retraction amount, or dividend);

 

  (B) until payment in full of all Senior Indebtedness, any distribution of assets of the Obligor of any kind or character to which the Holder would be entitled but for this Section 3 is hereby assigned absolutely to the holders of Senior Indebtedness (equally and ratably among the holders of Senior Indebtedness) and shall be paid by the Obligor or by any receiver, trustee in bankruptcy, liquidating trustee, agents or other Persons making such payment or distribution to the Trustee and/or other Representative on behalf of the holders of Senior Indebtedness, as their interests may appear; and

 

  (C) in the event that, notwithstanding the foregoing, any payment or distribution of assets of the Obligor of any kind or character, whether in Cash, Property or Securities, shall be received by the Holder before all Senior Indebtedness is paid in full, such payment or distribution shall be held in trust for the benefit of and shall be paid over to the Trustee and/or other Representative on behalf of the holders of Senior Indebtedness (equally and ratably among the holders of Senior Indebtedness), as their interests may appear, for application to the payment of all Senior Indebtedness until all Senior Indebtedness shall have been paid in full after giving effect to any concurrent payment or distribution to the holders of Senior Indebtedness in respect of such Senior Indebtedness.

 

ii


  (ii) If (A) a bankruptcy, reorganization, insolvency, receivership or similar proceeding relating to the Obligor or its property (a “Reorganization Proceeding”) is commenced and is continuing and (B) the Holder does not file proper claims or proofs of claim in the form required in a Reorganization Proceeding prior to 45 days before the expiration of the time to file such claims, then (1) upon the request of the Trustee, the Holder shall file such claims and proofs of claim in respect of the Subordinated Security and execute and deliver such powers of attorney, assignments and proofs of claim or proxies as may be directed by the Trustee to enable it to exercise in the sole discretion of the Trustee any and all voting rights attributable to the Subordinated Security which are capable of being voted (whether by meeting, written resolution or otherwise) in a Reorganization Proceeding and enforce any and all claims upon or in respect of the Subordinated Security and to collect and receive any and all payments or distributions which may be payable or deliverable at any time upon or in respect of the Subordinated Security, and (2) whether or not the Trustee shall take the action described in clause (1) above, the Trustee shall nevertheless be deemed to have such powers of attorney as may be necessary to enable the Trustee to exercise such voting rights, file appropriate claims and proofs of claim and otherwise exercise the powers described above for and on behalf of the Holder.

(c) Relative Rights . This Section 3 defines the relative rights of the Holder and the holders of Senior Indebtedness. Nothing in this Section 3 shall:

 

  (i) impair, as between the Obligor and the Holder, the obligation of the Obligor, which is absolute and unconditional, to make the payments required by the Subordinated Security in accordance with its terms; or

 

  (ii) affect the relative rights of the Holder and creditors of the Obligor other than the holders of Senior Indebtedness; or

 

  (iii) affect the relative rights of the holders of Senior Indebtedness among themselves; or

 

  (iv) prevent the Holder from exercising its available remedies upon a default, subject to the rights of the holders of Senior Indebtedness to receive cash, property or other assets otherwise payable to the Holder.

(d) Subordination May Not Be Impaired .

 

  (i) No right of any holder of Senior Indebtedness to enforce the subordination of indebtedness or obligation evidenced by the Subordinated Security shall in any way be prejudiced or impaired by any act or failure to act by the Obligor or by any such holder or the Trustee, or by any non-compliance by the Obligor with the terms, provisions or covenants herein, regardless of any knowledge thereof which any such holder or the Trustee may have or be otherwise charged with. Neither the subordination of the Subordinated Security as herein provided nor the rights of the holders of Senior Indebtedness with respect hereto shall be affected by any extension, renewal or modification of the terms, or the granting of any security in respect of, any Senior Indebtedness or any exercise or non-exercise of any right, power or remedy with respect thereto.

 

  (ii) The Holder agrees that all indebtedness or obligation evidenced by the Subordinated Security will be unsecured by any Lien upon or with respect to any property of the Obligor.

 

  (iii)

The Holder agrees not to exercise any offset, compensation or counterclaim or similar right in respect of the indebtedness or obligation evidenced by the Subordinated Security

 

iii


  except to the extent payment of such indebtedness or obligation is permitted and will not assign or otherwise dispose of the Subordinated Security or the indebtedness or obligation which it evidences unless the assignee or acquiror, as the case may be, agrees to be bound by the terms of this Agreement.

(e) Holder Entitled to Rely . Upon any payment or distribution pursuant to this Section 3, the Holder shall be entitled to rely (i) upon any order or decree of a court of competent jurisdiction in which any proceedings of the nature referred to in Section 3(b) are pending, (ii) upon a certificate of the liquidating trustee or agent or other person in such proceedings making such payment or distribution to the Holder or its representative, if any, or (iii) upon a certificate of the Trustee and/or other Representative (if any) of the holders of Senior Indebtedness for the purpose of ascertaining the persons entitled to participate in such payment or distribution, the holders of the Senior Indebtedness and other indebtedness of the Obligor, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Section 3.

 

  (4) Enforceability . Each of the Obligor and the Holder represents and warrants that this Agreement has been duly authorized, executed and delivered by each of the Obligor and the Holder and constitutes a valid and legally binding obligation of each of the Obligor and the Holder, enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles; and that, in the case of a Subordinated Security made or issued by Videotron or a Subsidiary Guarantor, on the date hereof, the Holder shall deliver an opinion or opinions of counsel to such effect to the Trustee for the benefit of the holders of the Senior Indebtedness under the Indenture.

 

  (5) Miscellaneous .

(a) Until payment in full of all the Senior Indebtedness, the Obligor and the Holder agree that no amendment shall be made to the Subordinated Security which would affect the rights of the holders of the Senior Indebtedness hereunder.

(b) This Agreement may not be amended or modified in any respect, nor may any of the terms or provisions hereof be waived, except by an instrument signed by the Obligor, the Holder and the Trustee and/or other Representative (if any).

(c) This Agreement shall be binding upon each of the parties hereto and their respective successors and assigns and shall inure to the benefit of the Trustee and/or other Representative (if any) and each and every holder of Senior Indebtedness and their respective successors and assigns.

(d) This Agreement shall be governed by and construed in accordance with the laws of the Province of Québec and the laws of Canada applicable therein.

(e) The Holder and the Obligor each hereby irrevocably agrees that any suits, actions or proceedings arising out of or in connection with this Agreement may be brought in any court in the Province of Québec and submits and attorns to the non-exclusive jurisdiction of each such court.

(f) The Holder and the Obligor will whenever and as often as reasonably requested to do so by the Trustee and/or other Representative (if any), do, execute, acknowledge and deliver any and all such other and further acts, assignments, transfers and any instruments of further assurance, approvals and consents as are necessary or proper in order to give complete effect to this Agreement.

 

iv


If to the Obligor:

[             ]

If to the Holder:

[             ]

Each of the Holder and the Obligor further agrees to take any and all action as may be necessary to maintain such designation and appointment of such agent in full force and effect so long as any Notes (including any Additional Notes) remain outstanding.

IN WITNESS WHEREOF, the Obligor and the Holder each have caused this Agreement to be duly executed.

 

[OBLIGOR]
By  

 

  Name:
  Title:
[HOLDER]
By  

 

  Name:
  Title:

 

v


Table of Contents

 

       Page  

ARTICLE 1. DEFINITIONS AND INCORPORATION BY REFERENCE

     2   

Section 1.01.

  

Definitions

     2   

Section 1.02.

  

Other Definitions

     25   

Section 1.03.

  

Rules of Construction

     26   

Section 1.04.

  

Form of Documents Delivered to Trustee

     26   

Section 1.05.

  

Acts of Holders of Notes

     27   

Section 1.06.

  

Benefits of Indenture

     27   

Section 1.07.

  

Trust Provisions

     27   

Section 1.08.

  

Accounting Changes

     28   

ARTICLE 2. THE NOTES

     28   

Section 2.01.

  

Form and Dating

     28   

Section 2.02.

  

Execution and Authentication

     30   

Section 2.03.

  

Registrar and Paying Agent

     30   

Section 2.04.

  

Paying Agent to Hold Money in Trust

     31   

Section 2.05.

  

Holder Lists

     31   

Section 2.06.

  

Transfer and Exchange

     31   

Section 2.07.

  

Replacement Notes

     40   

Section 2.08.

  

Outstanding Notes

     41   

Section 2.09.

  

Treasury Notes

     41   

Section 2.10.

  

Temporary Notes

     41   

Section 2.11.

  

Cancellation

     41   

Section 2.12.

  

Defaulted Interest

     42   

Section 2.13.

  

CUSIP or ISIN Numbers

     42   

Section 2.14.

  

Issuance of Additional Notes

     42   

ARTICLE 3. REDEMPTION AND PREPAYMENT

     42   

Section 3.01.

  

Notices to Trustee

     42   

Section 3.02.

  

Selection of Notes to be Redeemed

     43   

Section 3.03.

  

Notice of Redemption

     43   

Section 3.04.

  

Effect of Notice of Redemption

     44   

Section 3.05.

  

Deposit of Redemption Price

     44   

Section 3.06.

  

Notes Redeemed in Part

     44   

Section 3.07.

  

Optional Redemption

     44   

Section 3.08.

  

Mandatory Redemption

     45   

Section 3.09.

  

Offers to Purchase

     45   

 

i


ARTICLE 4. COVENANTS

     48   

Section 4.01.

  

Payment of Notes

     48   

Section 4.02.

  

Maintenance of Office or Agency

     48   

Section 4.03.

  

Reports

     49   

Section 4.04.

  

Compliance Certificate

     50   

Section 4.05.

  

Taxes

     50   

Section 4.06.

  

Stay, Extension and Usury Laws

     50   

Section 4.07.

  

Corporate Existence

     50   

Section 4.08.

  

Payments for Consent

     51   

Section 4.09.

  

Incurrence of Indebtedness and Issuance of Preferred Shares

     51   

Section 4.10.

  

Restricted Payments

     54   

Section 4.11.

  

Liens

     56   

Section 4.12.

  

Asset Sales

     56   

Section 4.13.

  

Dividend and Other Payment Restrictions Affecting Subsidiaries

     58   

Section 4.14.

  

Transactions with Affiliates

     59   

Section 4.15.

        60   

Section 4.16.

        60   

Section 4.17.

  

Designation of Restricted and Unrestricted Subsidiaries

     60   

Section 4.18.

  

Repurchase at the Option of Holders Upon a Change of Control Triggering Event

     62   

Section 4.19.

  

Future Guarantors

     62   

Section 4.20.

  

Additional Amounts

     62   

Section 4.21.

  

Business Activities

     63   

Section 4.22.

  

Covenant Termination

     64   

ARTICLE 5. SUCCESSORS

     64   

Section 5.01.

  

Merger, Consolidation and Sale of Assets of the Company and Subsidiary Guarantors

     64   

Section 5.02.

  

Successor Corporation Substituted

     65   

ARTICLE 6. DEFAULTS AND REMEDIES

     65   

Section 6.01.

  

Events of Default

     65   

Section 6.02.

  

Acceleration

     67   

Section 6.03.

  

Other Remedies

     68   

Section 6.04.

  

Waiver of Past Defaults

     68   

Section 6.05.

  

Control by Majority

     69   

Section 6.06.

  

Limitation on Suits

     69   

Section 6.07.

  

Rights of Holders to Receive Payment

     69   

Section 6.08.

  

Collection Suit by Trustee

     69   

Section 6.09.

  

Trustee May File Proofs of Claim

     69   

 

ii


Section 6.10.

  

Priorities

     70   

Section 6.11.

  

Undertaking for Costs

     70   

ARTICLE 7. TRUSTEE

     71   

Section 7.01.

  

Duties of Trustee

     71   

Section 7.02.

  

Rights of Trustee

     71   

Section 7.03.

  

Individual Rights of Trustee

     72   

Section 7.04.

  

Trustee’s Disclaimer

     72   

Section 7.05.

  

Notice of Defaults

     73   

Section 7.06.

  

Compensation and Indemnity

     73   

Section 7.07.

  

Replacement of Trustee

     73   

Section 7.08.

  

Successor Trustee by Merger, Etc

     74   

Section 7.09.

  

Eligibility, Disqualification

     74   

Section 7.10.

  

Acceptance of Trust

     75   

Section 7.11.

  

Fondé de Pouvoir

     75   

Section 7.12.

  

Company Status

     76   

ARTICLE 8. LEGAL DEFEASANCE AND COVENANT DEFEASANCE

     76   

Section 8.01.

  

Option to Effect Legal Defeasance or Covenant Defeasance

     76   

Section 8.02.

  

Legal Defeasance and Discharge

     76   

Section 8.03.

  

Covenant Defeasance

     77   

Section 8.04.

  

Conditions to Legal or Covenant Defeasance

     77   

Section 8.05.

  

Deposited Cash and Government Securities to be Held in Trust, Other Miscellaneous Provisions

     78   

Section 8.06.

  

Repayment to Company

     79   

Section 8.07.

  

Reinstatement

     79   

ARTICLE 9. AMENDMENT, SUPPLEMENT AND WAIVER

     79   

Section 9.01.

  

Without Consent of Holders of Notes

     79   

Section 9.02.

  

With Consent of Holders of Notes

     80   

Section 9.03.

  

Revocation and Effect of Consents

     81   

Section 9.04.

  

Notation on or Exchange of Notes

     82   

Section 9.05.

  

Trustee to Sign Amendments, Etc

     82   

ARTICLE 10. SUBSIDIARY GUARANTEES

     82   

Section 10.01.

  

Guarantee

     82   

Section 10.02.

  

Limitation on Subsidiary Guarantor Liability

     83   

Section 10.03.

  

Execution and Delivery of Subsidiary Guarantee

     84   

Section 10.04.

  

Subsidiary Guarantors May Consolidate, Etc., on Certain Terms

     84   

Section 10.05.

  

Releases Following Sale of Assets

     85   

ARTICLE 11. SATISFACTION AND DISCHARGE

     85   

 

iii


Section 11.01.

  

Satisfaction and Discharge

     85   

Section 11.02.

  

Deposited Cash and Government Securities to be Held in trust, Other Miscellaneous Provisions

     86   

Section 11.03.

  

Repayment to Company

     86   

Section 11.04.

  

Release of Subsidiary Guarantors upon Satisfaction and Discharge of Indenture

     86   

ARTICLE 12. MISCELLANEOUS

     87   

Section 12.01.

  

Notices

     87   

Section 12.02.

  

Certificate and Opinion as to Conditions Precedent

     88   

Section 12.03.

  

Statements Required in Certificate or Opinion

     88   

Section 12.04.

  

Rules by Trustee and Agents

     89   

Section 12.05.

  

No Personal Liability of Directors, Officers, Employees and Shareholders

     89   

Section 12.06.

  

Governing Law

     89   

Section 12.07.

  

No Adverse Interpretation of Other Agreements

     89   

Section 12.08.

  

Successors

     89   

Section 12.09.

  

Severability

     89   

Section 12.10.

  

Conversion of Currency

     89   

Section 12.11.

  

Currency Equivalent

     90   

Section 12.12.

  

Privacy Matters

     90   

Section 12.13.

  

Counterpart Originals

     91   

Section 12.14.

  

Table of Contents, Headings, Etc

     91   

Section 12.15.

  

Trust Indenture Legislation

     91   

Section 12.16.

  

Language of Indenture, Etc

     91   

Section 12.17.

  

Force Majeure

     91   

Section 12.18.

  

Third Party Interests

     91   

Section 12.19.

  

Anti-money Laundering

     92   

ARTICLE 13. MEETINGS OF HOLDERS OF NOTES

     92   

Section 13.01.

  

Purposes for which Meetings may be Called

     92   

Section 13.02.

  

Call, Notice and Place of Meetings

     92   

Section 13.03.

  

Persons Entitled to Vote at Meetings

     92   

Section 13.04.

  

Quorum, Action

     93   

Section 13.05.

  

Determination of Voting Rights; Conduct and Adjournment of Meetings

     93   

Section 13.06.

  

Counting Votes and Recording Action of Meetings

     94   

Section 13.07.

  

Distribution of Proxy Materials to Participants

     94   
EXHIBIT A: FORM OF NOTE   
EXHIBIT B: FORM OF CERTIFICATE OF TRANSFER   
EXHIBIT C: FORM OF CERTIFICATE OF EXCHANGE   
EXHIBIT D: FORM OF CERTIFICATE FROM ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR   
EXHIBIT E: FORM OF NOTATION OF GUARANTEE   
EXHIBIT F: FORM OF SUBORDINATION AGREEMENT   

 

iv

Exhibit 4.3

SECOND AMENDING AGREEMENT to the Amended and Restated Credit Agreement dated as of July 20, 2011, as amended by the First Amending Agreement dated as of June 14, 2013, entered into in the City of Montreal, Province of Quebec, as of January 28, 2015.

 

AMONG:    VIDÉOTRON LTÉE , a company constituted in accordance with the laws of Quebec, having its registered office at 612 St. Jacques Street, 18 th floor, in the City of Montreal, Province of Quebec (hereinafter called the “ Borrower ”)
AND:    THE LENDERS, AS DEFINED IN THE CREDIT AGREEMENT (the “ Lenders ”)
AND:    ROYAL BANK OF CANADA, AS ADMINISTRATIVE AGENT FOR THE LENDERS , a Canadian bank, having a place of business at 200 Bay Street, 12th floor, South Tower, Royal Bank Plaza, in the City of Toronto, Province of Ontario (hereinafter called the “ Agent ”)
AND:    HSBC BANK PLC , AS FINNVERA FACILITY AGENT , a bank governed by the laws of England and Wales, having a place of business at 8 Canada Square, Canary Wharf, London, UK, E14 5HQ (hereinafter called the “ Finnvera Facility Agent ”)

WHEREAS the parties hereto are parties to an Amended and Restated Credit Agreement dated as of July 20, 2011, as amended by the First Amending Agreement dated as of June 14, 2013 (the “ Credit Agreement ”);

WHEREAS the Borrower has requested an amendment to the Credit Agreement to increase the permitted unsecured Debt basket of Section 13.7(i) from $100,000,000 to $250,000,000;

WHEREAS the requisite majority of Lenders has agreed with the Borrower to the amendments contemplated hereby, and as such, the Lenders have complied with the provisions of Section 18.14 and 18.15 of the Credit Agreement, as evidenced by the signature of the Agent on this Agreement;

NOW THEREFORE, THE PARTIES HERETO AGREE AS FOLLOWS:

 

I. INTERPRETATION

All of the words and expressions which are capitalized herein shall have the meanings ascribed to them in the Credit Agreement unless otherwise indicated herein.


II. AMENDMENTS

1. Section 13.7 of the Credit Agreement is amended by replacing the number “$100,000,000” in clause (i) with the number “$250,000,000”. Consequently, Section 13.7 now provides as follows:

“13.7 Debt and Guarantees

Incur or assume Debt, provide Guarantees or render itself liable in any manner whatsoever, directly or indirectly, for any Indebtedness or obligation whatsoever of another Person, except (a) hereunder for the purposes set forth in Section 3.1; (b) that a member of the VL Group may provide financial assistance to another member of the VL Group to the extent that the Borrower complies with the provisions of Section 12.12; (c) unsecured Debt not exceeding $75,000,000 under the Tranche B Finnvera credit agreement entered into among the Borrower, HSBC Bank plc, The Toronto-Dominion Bank, Credit Suisse and Sumitomo Banking Corporation of Canada dated as of November 13, 2009; (d) in connection with Debt incurred or assumed that is secured by Permitted Charges, and within the limits applicable thereto; (e) in connection with Back-to-Back Transactions and Tax Benefit Transactions including by way of unsecured daylight loans; (f) that the Borrower may incur or assume unsecured Debt by way of Additional Offerings, and that a member of the VL Group may provide unsecured Guarantees in respect of obligations of the Borrower under any such Debt outstanding at any time, to the extent that the Borrower complies with the applicable Leverage Ratio calculated on a pro forma basis and, subject to the provisions of Section 9.3, such member has provided a Guarantee under subsection 9.1.1 or provides such a Guarantee contemporaneously with its Guarantee in relation to the Additional Offering; (g) unsecured Debt by way of Additional Offerings incurred by the Borrower before the Closing Date and listed in Schedule “H” and including, subject to Section 9.3, unsecured Guarantees by members of the VL Group in respect of obligations of the Borrower under such Debt outstanding at any time; (h) the Borrower may borrow Subordinated Debt from Quebecor Media Inc. in a principal amount outstanding from time to time of up to $500,000,000, with interest at a rate not exceeding the greater of (y) the three month bankers’ acceptance rate quoted on Reuter’s Services, page CDOR, as at approximately 10:00 a.m. on such day plus 3.0% per annum, or (z) 7% per annum (together with interest accrued thereon or paid in kind, the “ QMI Subordinated Debt ”); (i) additional unsecured Debt of up to $250,000,000; (j) in connection with other Subordinated Debt; (k) unsecured daylight loans incurred in connection with Tax Consolidation Transactions, provided that prior to incurring the daylight loan made at the initiation of any Tax Consolidation Transaction in a minimum amount of $75,000,000, the Agent shall have been informed by the Borrower of the incurrence of such daylight loan; and (l) unsecured Debt in respect of daylight loans in the ordinary course of business for cash management purposes; provided that, with respect to any of the matters described in paragraphs (c) to (i)

 

2.


above inclusive, (A) no Default or Event of Default exists at the time, (B) incurring or assuming such Debt (including by way of providing such Guarantee) will not cause a Default or Event of Default, and (C) on a pro forma basis, the incurrence or assumption of such Debt would not reasonably be expected to cause the Borrower to breach any of its covenants under Section 12.11 hereof.”.

 

III. EFFECTIVE DATE AND CONDITIONS

1. This Second Amending Agreement shall become effective as of January 28, 2015 (the “ Effective Date ”), subject to the fulfilment of all conditions precedent set out herein.

2. On the Effective Date, the Credit Agreement shall be modified by the foregoing amendment. The parties hereto agree that the changes to the Credit Agreement set out herein and the execution hereof shall not constitute novation and all the Security shall continue to apply to the Credit Agreement, as amended hereby, and all other obligations secured thereby. Without limiting the generality of the foregoing and to the extent necessary, (i) the Lenders and the Agent reserve all of their rights under each of the Security Documents, and (ii) each of the Borrower and the Guarantors obligates itself again in respect of all present and future obligations under, inter alia , the Credit Agreement, as amended hereby.

3. The Borrower shall pay all fees and costs, including all legal fees associated with this Agreement incurred by the Agent as contemplated and restricted by the provisions of Section 12.14 of the Credit Agreement.

4. All of the representations and warranties of the Borrower contained in Article 11 of the Credit Agreement (except where qualified in Article 11 as being made as at a particular date) are true and correct on and as of the Effective Date as though made on and as of the Effective Date.

 

IV. MISCELLANEOUS

1. All of the provisions of the Credit Agreement that are not amended hereby shall remain in full force and effect.

2. This Agreement shall be governed by and construed in accordance with the Laws of the Province of Quebec.

3. The parties acknowledge that they have required that the present agreement, as well as all documents, notices and legal proceedings entered into, given or instituted pursuant hereto or relating directly or indirectly hereto be drawn up in English. Les parties reconnaissent avoir exigé la rédaction en anglais de la présente convention ainsi que de tous documents exécutés, avis donnés et procédures judiciaires intentées, directement ou indirectement, relativement ou à la suite de la présente convention.

IN WITNESS WHEREOF THE PARTIES HERETO HAVE SIGNED THIS AGREEMENT ON THE DATE AND AT THE PLACE FIRST HEREINABOVE MENTIONED.

 

3.


VIDÉOTRON LTÉE

 

Per:  

/s/ Hugues Simard

     
Per:  

/s/ Chloé Poirier

     


ROYAL BANK OF CANADA, as Agent      
Per:  

/s/ Rodica Dutka

     
  Rodica Dutka      
  Manager, Agency      
Per:  

 

     

 

THE REVOLVING FACILITY LENDERS:
ROYAL BANK OF CANADA, as Lender     NATIONAL BANK OF CANADA
Per:  

/s/ Pierre Bouffard

    Per:  

/s/ Luc Bernier

  Pierre Bouffard       Luc Bernier
  Authorized Signatory       Directeur – Director
Per:  

 

    Per:  

/s/ François Montigny

        François Montigny
        Managing Director

 

THE TORONTO-DOMINION BANK     BANK OF MONTREAL
Per:  

/s/ (signature)

    Per:  

/s/ Sean P. Gallaway

        Sean P. Gallaway
        Vice President
Per:  

/s/ (signature)

    Per:  

 

 

BANK OF AMERICA, N.A., Canada Branch     CANADIAN IMPERIAL BANK OF COMMERCE
Per:  

/s/ Medina Sales de Andrade

    Per:  

/s/ Philippe Boivin

  Medina Sales de Andrade       Philippe Boivin
  Vice President       Director
Per:  

 

    Per:  

/s/ Anissa Rabia-Zeribi

        Anissa Rabia-Zeribi
        Executive Director


THE BANK OF NOVA SCOTIA     CITIBANK, N.A., Canadian Branch
Per:  

/s/ Rob King

    Per:  

/s/ Isabelle Côté

  Rob King     Name:   Isabelle Côté
  Managing Director     Title:   Authorized Signatory
Per:  

/s/ Sean Flinn

    Per:  

 

  Sean Flinn      
  Associate      

 

CAISSE CENTRALE DESJARDINS     LAURENTIAN BANK OF CANADA
Per:  

/s/ (signature)

    Per:  

/s/ Guylaine Couture

        Guylaine Couture
        Vice-présidente adjointe
        Assistant Vice President
Per:  

/s/ (signature)

    Per:  

/s/ Sophie Boucher

        Sophie Boucher
        Vice President

 

HSBC BANK CANADA     GOLDMAN SACHS LENDING PARTNERS LLC
Per:  

/s/ (signature)

    Per:  

/s/ Michelle Latzoni

        Michelle Latzoni
        Authorized Signatory
Per:  

/s/ Giancarlo Zito

    Per:  

 

  Giancarlo Zito #58245      
  Associate, Global Banking      
  HSBC Bank Canada      

 

MIZUHO BANK, LTD.     BANK OF TOKYO – MITSUBISHI UFJ (CANADA)
Per:  

/s/ W.M. McFarland

    Per:  

/s/ (signature)

  W.M. McFarland      
  Senior Vice President Canada Branch      
Per:  

 

    Per:  

 


ICICI BANK CANADA     SUMITOMO MITSUI BANKING CORPORATION OF CANADA
Per:  

/s/ Sandeep Goel

    Per:  

/s/ E.R. Langley

  Sandeep Goel       E.R. Langley
  Senior Vice President &       Senior Vice President
  Chief Risk Officer      
  ICICI Bank Canada      
Per:  

/s/ Lester Fernandes

    Per:  

 

  Lester Fernandes      
  Assistant Vice President      
  Corporate Banking      
  ICICI Bank Canada      


HSBC BANK PLC, as Finnvera Facility Agent      
Per:  

/s/ Jeremy Causton

     
  Jeremy Causton      
  Authorised Signatory      
Per:  

 

     

 

THE FINNVERA TERM FACILITY LENDERS:
HSBC BANK PLC     THE TORONTO-DOMINION BANK
Per:  

/s/ Mark Looi

    Per:  

/s/ (signature)

  Mark Looi      
  Director      
  38368A      
Per:  

 

    Per:  

/s/ (signature)

 

SUMITOMO MITSUI BANKING      
CORPORATION OF CANADA      
Per:  

/s/ E.R. Langley

     
  E.R. Langley      
  Senior Vice President      
Per:  

 

     


The undersigned acknowledge having taken cognizance of the provisions of the foregoing Second Amending Agreement and agree that the Guarantees and Security executed by them (A) remain enforceable against them in accordance with their terms, and (B) continue to guarantee or secure, as applicable, all of the obligations of the Persons specified in such Guarantees and Security Documents in connection with the Credit Agreement as defined above, and as amended hereby:

 

9293-6707 QUÉBEC INC.     9227-2590 QUÉBEC INC.
Per:  

/s/ Hugues Simard

    Per:  

/s/ Hugues Simard

Per:  

/s/ Chloé Poirier

    Per:  

/s/ Chloé Poirier

9230-7677 QUÉBEC INC.     8487782 CANADA INC.
Per:  

/s/ Hugues Simard

    Per:  

/s/ Hugues Simard

Per:  

/s/ Chloé Poirier

    Per:  

/s/ Chloé Poirier

VIDEOTRON L.P., represented by     VIDEOTRON G.P.
its general partner 9230-7677 QUÉBEC INC.      
Per:  

/s/ Hugues Simard

    Per:  

/s/ Hugues Simard

Per:  

/s/ Chloé Poirier

    Per:  

/s/ Chloé Poirier

VIDÉOTRON INFRASTRUCTURES INC.      
Per:  

/s/ Hugues Simard

     
Per:  

/s/ Chloé Poirier

     

Exhibit 4.4

THIRD AMENDING AGREEMENT to the Amended and Restated Credit Agreement dated as of July 20, 2011, as amended by the First Amending Agreement dated as of June 14, 2013 and the Second Amending Agreement dated as of January 28, 2015, entered into in the City of Montreal, Province of Quebec, as of June 16, 2015,

 

AMONG:    VIDÉOTRON LTÉE , a company constituted in accordance with the laws of Quebec, having its registered office at 612 St. Jacques Street, 18 th floor, in the City of Montreal, Province of Quebec (hereinafter called the “ Borrower ”)
AND:    THE LENDERS, AS DEFINED IN THE CREDIT AGREEMENT (the “ Lenders ”)
AND:    ROYAL BANK OF CANADA, AS ADMINISTRATIVE AGENT FOR THE LENDERS , a Canadian bank, having a place of business at 200 Bay Street, 12th floor, South Tower, Royal Bank Plaza, in the City of Toronto, Province of Ontario (hereinafter called the “ Agent ”)
AND:    HSBC BANK PLC , AS FINNVERA FACILITY AGENT , a bank governed by the laws of England and Wales, having a place of business at 8 Canada Square, Canary Wharf, London, UK, E14 5HQ (hereinafter called the “ Finnvera Facility Agent ”)

WHEREAS the parties hereto are parties to an Amended and Restated Credit Agreement dated as of July 20, 2011, as amended by the First Amending Agreement dated as of June 14, 2013 and the Second Amending Agreement dated as of January 28, 2015 (as so amended and restated and amended, the “ Original Credit Agreement ”, and as further amended pursuant to this Agreement, the “ Credit Agreement ”);

WHEREAS the Borrower has requested certain amendments to the Original Credit Agreement in connection with the addition of a new unsecured revolving facility, an extension of the Term, an increase in the amount of the Revolving Facility, and other modifications; and

WHEREAS the parties hereto wish to amend and restate the Original Credit Agreement, as amended pursuant to this Third Amending Agreement, in its entirety, the whole without novation;

WHEREAS the Lenders have unanimously agreed with the Borrower to the amendments contemplated hereby, and as such, the parties hereto have complied with the provisions of Section 18.14 and 18.15 of the Original Credit Agreement, as evidenced by the signature of each party hereto on this Agreement;


NOW THEREFORE, THE PARTIES HERETO AGREE AS FOLLOWS:

 

1. INTERPRETATION

1. All of the words and expressions which are capitalized herein shall have the meanings ascribed to them in the Original Credit Agreement unless otherwise indicated herein.

2. The parties have agreed to indicate the amendments to the Original Credit Agreement by showing all (a) additions, by using double-underlined text, and (b) deletions, by striking out the deleted text.

 

II. AMENDMENTS

The Original Credit Agreement is amended to delete the stricken text and add the double-underlined text as set forth in the Amended and Restated Credit Agreement attached as Schedule 1. A clean, unmarked version of the Amended and Restated Credit Agreement is also attached, as Schedule 2, which clean version will become the Credit Agreement once all conditions precedent hereunder have been met.

 

III. REPRESENTATIONS AND WARRANTIES

1. The Borrowers and Guarantors hereby represent and warrant to the Lenders, the Agent, the Finnvera Lenders and the Finnvera Facility Agent as follows:

(a) the execution, delivery and performance by the Borrowers and the Guarantors of this Amendment have been duly authorized by all necessary corporate and other action and do not and will not require any registration with, consent or approval of, or notice to or action by, any Person (including any Governmental Authority) in order to be effective and enforceable; and

(b) this Amendment constitutes a legal, valid and binding obligation of the Borrower and each Guarantor, enforceable against each such Person in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity.

 

IV. EFFECTIVE DATE

1. This Agreement shall become effective as of June 16, 2015 (the “ Third Amendment Effective Date ”), subject to the fulfilment of all conditions precedent set out herein.

2. On the Third Amendment Effective Date, the new Credit Agreement shall supersede the Original Credit Agreement in its entirety, except as provided in this section. The parties hereto agree that the changes to the terms and conditions of the Original Credit Agreement set out herein and the execution hereof shall not constitute novation and all the Security shall continue to apply to the Credit Agreement, and all other obligations secured thereby. Without limiting the generality of the foregoing and to the extent necessary, (i) the Lenders, the Agent, the Finnvera Lenders and the Finnvera Facility Agent reserve all of their rights under each of the Security Documents, and (ii) each of the Borrower and the Guarantors obligates itself again in respect of all present and future obligations under, inter alia , the Credit Agreement.

 

2.


V. CONDITIONS PRECEDENT

1. The Borrower shall pay all fees and costs, including (a) the fees referred to in the Borrower’s request letter dated May 8, 2015, and (b) legal fees associated with this Agreement incurred by the Agent and the Finnvera Facility Agent as contemplated and restricted by the provisions of Section 12.14 of the Credit Agreement.

2. This Third Amending Agreement shall have been signed by all of the parties hereto and fully executed counterparts shall have been received by the Agent.

3. The Borrower shall provide to the Agent and the Finnvera Facility Agent the opinion of its counsel, in form and substance acceptable to the Agent, the Finnvera Facility Agent and the Lenders’ counsel, with respect to (i) the power, capacity, and authority of the Borrower and each of the Guarantors to enter into or intervene in this Agreement and to perform its obligations hereunder, (ii) the enforceability of this Agreement in accordance with its terms, (iii) the continued enforceability (unaffected hereby) of all of the Security, and (iv) such other matters as may reasonably be requested by the Agent , the Finnvera Facility Agent, or counsel to them.

4. The representations and warranties of the Borrower and each Guarantor set forth in the Credit Agreement shall be true and correct in all respects on and as of the Third Amendment Effective Date (except that where such representations and warranties are qualified by reference to a date, they shall be true and correct as at such date).

5. The representations and warranties in Article III of this Amendment shall be true and correct in all material respects as of the date hereof.

6. At the time of and immediately after giving effect to this Third Amending Agreement, no Default or Event of Default has occurred or is continuing.

 

VI. MISCELLANEOUS

1. All of the provisions of the Original Credit Agreement that are not amended hereby shall remain in full force and effect.

2. This Agreement shall be governed by and construed in accordance with the Laws of the Province of Quebec.

3. The parties acknowledge that they have required that the present agreement, as well as all documents, notices and legal proceedings entered into, given or instituted pursuant hereto or relating directly or indirectly hereto be drawn up in English. Les parties reconnaissent avoir exigé la rédaction en anglais de la présente convention ainsi que de tous documents exécutés, avis donnés et procédures judicaires intentées, directement ou indirectement, relativement ou à la suite de la présente convention.

 

3.


IN WITNESS WHEREOF THE PARTIES HERETO HAVE SIGNED THIS AGREEMENT ON THE DATE AND AT THE PLACE FIRST HEREINABOVE MENTIONED.

(SIGNATURE PAGES FOLLOW)

 

4.


VIDÉOTRON LTÉE
Per:  

/s/ Chloé Poirier

Per:  

/s/ Marc Tremblay


ROYAL BANK OF CANADA, as Agent      
Per:  

/s/ Rodica Dutka

     
  Rodica Dutka      
  Manager, Agency      
Per:  

 

     

THE REVOLVING FACILITY LENDERS AND UNSECURED FACILITY LENDERS:

 

ROYAL BANK OF CANADA     NATIONAL BANK OF CANADA
Per:  

/s/ Pierre Bouffard

    Per:  

/s/ Luc Bernier

  Pierre Bouffard       Luc Bernier
  Authorized Signatory       Directeur – Director
Per:  

 

    Per:  

/s/ François Montigny

        François Montigny
        Managing Diector
BANK OF AMERICA, N.A., Canada Branch     THE BANK OF NOVA SCOTIA
Per:  

/s/ Medina Sales de Andrade

    Per:  

/s/ Rob King

  Medina Sales de Andrade       Rob King
  Vice President       Managing Director
Per:  

 

    Per:  

/s/ Sean Flinn

        Sean Flinn
        Associate
THE TORONTO-DOMINION BANK     BANK OF MONTREAL
Per:  

/s/ (signature)

    Per:  

/s/ Jeff Currie

        Jeff Currie
        Director
Per:  

/s/ (signature)

    Per:  

 


CAISSE CENTRALE DESJARDINS     CANADIAN IMPERIAL BANK OF COMMERCE
Per:  

/s/ (signature)

    Per:  

/s/ Philippe Boivin

        Philippe Boivin
        Director
Per:  

/s/ (signature)

    Per:  

/s/ Anissa Rabia-Zeribi

        Anissa Rabia-Zeribi
        Executive Director
HSBC BANK CANADA     JPMORGAN CHASE BANK, N.A.
Per:  

/s/ (signature)

    Per:  

/s/ Jeffrey Coleman

        Jeffrey Coleman
        Executive Director
Per:  

/s/ ( signature)

    Per:  

 

BANK OF TOKYO – MITSUBISHI UFJ

(CANADA)

    CITIBANK, N.A., Canadian Branch
Per:  

/s/ (signature)

    Per:  

/s/ Jawdat Sha’sha’a

        Jawdat Sha’sha’a
        Authorised Signer
Per:  

 

    Per:  

 

MIZUHO BANK, LTD.     ICICI BANK CANADA
Per:  

/s/ W.M. McFarland

    Per:  

/s/ Sandeep Goel

  W.M. McFarland       Sandeep Goel
  Senior Vice President       Senior Vice President &
  Canada Branch       Chief Risk Officer
        ICICI Bank Canada
Per:  

 

    Per:  

/s/ Lester Fernandes

        Lester Fernandes
        Assistant Vice President
        Corporate Banking
        ICICI Bank Canada


LAURENTIAN BANK OF CANADA
Per:  

/s/ Guylaine Couture

  Guylaine Couture
  Assistant Vice President
Per:  

/s/ Maude St-Pierre

  Maude St-Pierre
  Account Manager


HSBC BANK PLC, as Finnvera Facility Agent    
Per:  

/s/ (signature)

   
Per:  

 

   
THE FINNVERA TERM FACILITY LENDERS:    
HSBC BANK PLC     THE TORONTO-DOMINION BANK
Per:  

/s/ (signature)

    Per:  

/s/ Vince Chang

        Vince Chang
        Managing Director
Per:  

 

    Per:  

/s/ Akhil Lamba

        Akhil Lamba
        Managing Director
SUMITOMO MITSUI BANKING CORPORATION OF CANADA    
Per:  

/s/ E.R. Langley

     
  E.R. Langley      
  Senior Vice President      
Per:  

 

     


The undersigned acknowledge having taken cognizance of the provisions of the foregoing Third Amending Agreement and consent thereto, and agree that the Guarantees and Security executed by them (A) remain enforceable against them in accordance with their terms, and (B) continue to guarantee or secure, as applicable, all of the obligations of the Persons specified in such Guarantees and Security Documents in connection with the Credit Agreement as defined above, and as amended hereby:

 

9293-6707 QUÉBEC INC.     9227-2590 QUÉBEC INC.
Per:  

/s/ Chloé Poirier

    Per:  

/s/ Chloé Poirier

Per:  

/s/ Marc Tremblay

    Per:  

/s/ Marc Tremblay

9230-7677 QUÉBEC INC.     8487782 CANADA INC.
Per:  

/s/ Chloé Poirier

    Per:  

/s/ Chloé Poirier

Per:  

/s/ Marc Tremblay

    Per:  

/s/ Marc Tremblay

VIDEOTRON L.P., represented by

its general partner 9230-7677 QUÉBEC INC.

    VIDEOTRON G.P.
Per:  

/s/ Chloé Poirier

    Per:  

/s/ Chloé Poirier

Per:  

/s/ Marc Tremblay

    Per:  

/s/ Marc Tremblay

VIDÉOTRON INFRASTRUCTURES INC.    

4DEGRÉS COLOCATION INC. /

4DEGREES COLOCATION INC.

Per:  

/s/ Chloé Poirier

    Per:  

/s/ Chloé Poirier

Per:  

/s/ Marc Tremblay

    Per:  

/s/ Marc Tremblay


SCHEDULE 1

[Redacted.]


SCHEDULE 2


VIDÉOTRON LTÉE, as Borrower

-and-

RBC DOMINION SECURITIES INC., as Co-Lead Arranger and Joint Bookrunner

NATIONAL BANK OF CANADA, as Co-Lead Arranger and Joint Bookrunner

-and-

BANK OF AMERICA, N.A., CANADA BRANCH

THE TORONTO-DOMINION BANK

THE BANK OF NOVA SCOTIA

CAISSE CENTRALE DESJARDINS

BMO CAPITAL MARKETS

as Co-Arrangers

-and-

NATIONAL BANK OF CANADA

as Syndication Agent

-and-

THE BANK OF NOVA SCOTIA

as Documentation Agent

-and-

THE FINANCIAL INSTITUTIONS NAMED

ON THE SIGNATURE PAGES HERETO

as Lenders

ROYAL BANK OF CANADA, as Administrative Agent

-and-

HSBC BANK PLC, as Finnvera Facility Agent

 

 

CREDIT AGREEMENT originally dated as of November 28, 2000, as Amended and Restated as of July 20, 2011, as amended by a First Amending Agreement dated as of June 14, 2013, a Second Amending Agreement dated as of January 28, 2015, and as Amended and Restated by a Third Amending Agreement dated as of June 16, 2015

 

LOGO

 

1000 De La Gauchetière Blvd. West       Scotia Plaza
Suite 900       40 King Street West, Suite 4400
Montreal (Quebec) H3B 5H4       Toronto, Ontario, Canada M5H 3Y4
Telephone: 514- 954-2522    Fax: 514-954-1905    Telephone: 416-367-6332


TABLE OF CONTENTS

 

1.

     INTERPRETATION      1  
     1.1      Definitions      1  
     1.2      Interpretation      32  
     1.3      Currency      32  
     1.4      Generally Accepted Accounting Principles      33  
     1.5      Division and Titles      33  

2.

     THE CREDIT      33  
     2.1      Credit Facilities      33  
     2.2      The Revolving Facility and the Unsecured Facility      34  
     2.3      The Unsecured Facility Generally, and Transfers of Credit and Commitments in Certain Circumstances      34  
     2.4      Incremental Commitments and Facilities      35  
     2.5      Finnvera Term Facility      37  

3.

     PURPOSE      37  
     3.1      Purpose of the Advances      37  

4.

     ADVANCES, CONVERSIONS AND OPERATION OF ACCOUNTS      38  
     4.1      Notice of Borrowing - Direct Advances      38  
     4.2      Letters of Credit      38  
     4.3      Swing Line Advances      42  
     4.4      Operation of Accounts      44  
     4.5      Apportionment of Advances      44  
     4.6      Limitations on Advances      45  
     4.7      Notices Irrevocable      45  
     4.8      Limits on BA Advances and Letters of Credit      45  
     4.9      Excess Resulting From Exchange Rate Change      45  
     4.10      Advances and Repayments – Revolving Facility and Unsecured Facility      45  

5.

     INTEREST AND FEES      46  
     5.1      Interest on the Prime Rate Basis      46  
     5.2      Payment of Interest on the Prime Rate Basis      46  
     5.3      Derivative Obligations      46  
     5.4      Interest on the Loan Obligations      47  
     5.5      Arrears of Interest      47  
     5.6      Maximum Interest Rate      47  
     5.7      Fees      47  
     5.8      Interest Act      48  


6.

   BANKERS’ ACCEPTANCES      48  
   6.1    Advances by Bankers’ Acceptances and Conversions into Bankers’ Acceptances      48  
   6.2    Acceptance Procedure      50  
   6.3    Purchase of Bankers’ Acceptances and Discount Notes      51  
   6.4    Maturity Date of Bankers’ Acceptances      51  
   6.5    Deemed Conversions on the Maturity Date      52  
   6.6    Conversion and Extension Mechanism      52  
   6.7    Prepayment of Bankers’ Acceptances      52  
   6.8    Apportionment Amongst the Lenders      52  
   6.9    Cash Deposits      53  
   6.10    Days of Grace      53  
   6.11    Obligations Absolute      53  
   6.12    Depository Bills and Notes Act      53  
   6.13    Advances and Repayments – Revolving Facility and Unsecured Facility      54  

7.

   ILLEGALITY, INCREASED COSTS, INDEMNIFICATION AND MARKET DISRUPTIONS      54   
   7.1    Illegality      54  
   7.2    Increased Costs      54  
   7.3    Taxes      56  
   7.4    Breakage Costs, Failure to Borrow or Repay After Notice      58  
   7.5    Mitigation Obligations: Replacement of Lenders      59  
   7.6    Market Disruption      60  

8.

   PAYMENT, REPAYMENT AND PREPAYMENT      61  
   8.1    Repayment of the Loan Obligations      61  
   8.2    Voluntary Repayment and Prepayment of the Loan Obligations or Cancellation of the Credit      61  
   8.3    Cash Collateralization of BA Advances      62  
   8.4    Currency of Payments      62  
   8.5    Payments by the Borrower to the Agent      62  
   8.6    Payment on a Business Day      62  
   8.7    Payments by the Lenders to the Agent      63  
   8.8    Payments by the Agent to the Borrower      63  
   8.9    Netting      63  
   8.10    Application of Payments      63  
   8.11    No Set-Off or Counterclaim by Borrower      64  
   8.12    Debit Authorization      64  

 

2.


9.      

  

SECURITY

     64  
   9.1        Security for Advances      64  
   9.2        ECA Guarantee      65  
   9.3        Guarantors – Exception      66  
   9.4        Release of Security in Certain Circumstances      66  
   9.5        Limitation on Aggregate Principal Amount of Loan Obligations Secured by the Security Documents      66  

10.

   CONDITIONS PRECEDENT      67  
   10.1      Initial Advance Under the Revolving Facility After the Closing Date      67  
   10.2      Conditions Precedent to any Advance      68  
   10.3      Waiver of Conditions Precedent      69  

11.

   REPRESENTATIONS AND WARRANTIES      69  
   11.1      Incorporation      69  
   11.2      Authorization      69  
   11.3      Compliance with Applicable Law and Contracts      69  
   11.4      Core Business      70  
   11.5      Financial Statements      70  
   11.6      Contingent Liabilities and Indebtedness      70  
   11.7      Title to Assets      70  
   11.8      Litigation      71  
   11.9      Taxes      71  
   11.10    Insurance      71  
   11.11    No Adverse Change      71  
   11.12    Regulatory Approvals      71  
   11.13    Compliance with Applicable Law and Licences      71  
   11.14    Pension and Employment Liabilities      72  
   11.15    Priority      72  
   11.16    Complete and Accurate Information      72  
   11.17    Share Capital      72  
   11.18    Absence of Default      72  
   11.19    Agreements with Third Parties      72  
   11.20    Anti-Terrorism and Money Laundering Laws      72  
   11.21    Environment      73  
   11.22    Survival of Representations and Warranties      74  

 

3.


12.

   COVENANTS      74  
   12.1      Preservation of Juridical Personality      74  
   12.2      Preservation of Licences      74  
   12.3      Compliance with Applicable Laws      74  
   12.4      Maintenance of Assets      75  
   12.5      Business      75  
   12.6      Insurance      75  
   12.7      Payment of Taxes and Duties      75  
   12.8      Access and Inspection      75  
   12.9      Maintenance of Account      76  
   12.10      Performance of Obligations      76  
   12.11      Maintenance of Ratios      76  
   12.12      Ownership by the Borrower and Guarantors      76  
   12.13      Maintenance of Security      76  
   12.14      Payment of Legal Fees and Other Expenses      77  
   12.15      Financial Reporting      77  
   12.16      Notice of Certain Events      80  
   12.17      Accuracy of Reports      80  

13.

   NEGATIVE COVENANTS      80  
   13.1      Liquidation and Amalgamation      80  
   13.2      Charges      81  
   13.3      Asset Dispositions      81  
   13.4      Preservation of Capital      82  
   13.5      Restrictions on Subsidiaries      82  
   13.6      Acquisitions      82  
   13.7      Debt and Guarantees      83  
   13.8      Financial Assistance by the VL Group      84  
   13.9      Subordinated Debt      84  
   13.10    Members of the VL Group, Related Party Transactions      85  
   13.11    Derivative Instruments      85  
   13.12    Anti-Terrorism Laws      85  

14.

   EVENTS OF DEFAULT AND REALIZATION      85  
   14.1      Event of Default      85  
   14.2      Remedies      88  
   14.3      Bankruptcy and Insolvency      88  

 

4.


     14.4      Notice      89  
     14.5      Costs      89  
     14.6      Relations with the Borrower      89  
     14.7      Application of Proceeds      89  

15.

     JUDGMENT CURRENCY      90  
     15.1      Rules of Conversion      90  
     15.2      Determination of an Equivalent Currency      90  

16.

     ASSIGNMENT      91  
     16.1        Assignment by the Borrower      91  
     16.2        Assignments and Transfers by the Lenders      91  
     16.3        Register      93  
     16.4        Electronic Execution of Assignments      93  
     16.5        Participations      94  
     16.6        Limitations Upon Participant Rights      94  
     16.7        Certain Pledges and Special Provisions      94  

17.

     MISCELLANEOUS      95  
     17.1        Notices      95  
     17.2        Amendment and Waiver      95  
     17.3        Determinations Final      95  
     17.4        Entire Agreement      95  
     17.5        Indemnification and Compensation      96  
     17.6        Benefit of Agreement      96  
     17.7        Counterparts      96  
     17.8        Applicable Law      96  
     17.9        Severability      96  
     17.10      Further Assurances      97  
     17.11      Good Faith and Fair Consideration      97  
     17.12      Responsibility of the Lenders      97  
     17.13      Indemnity      97  
     17.14      Language      98  
     17.15      Anti-Terrorism Legislation      98  

18.

     THE AGENT AND THE LENDERS      98  
     18.1        Authorization of Agent      98  
     18.2        Agent’s Responsibility      100  
     18.3        Rights of Agent as Lender      101  

 

5.


   18.4      Indemnity      101  
   18.5      Notice by Agent to Lenders      101  
   18.6      Protection of Agent      101  
   18.7      Notice by Lenders to Agent      102  
   18.8      Sharing Among the Lenders      102  
   18.9      Derivative Obligations      104  
   18.10    Procedure with respect to Advances      105  
   18.11    Accounts kept by each Lender      106  
   18.12    Binding Determinations      106  
   18.13    Amendment of Article 18      106  
   18.14    Decisions, Amendments and Waivers of the Lenders      107  
   18.15    Authorized Waivers, Variations and Omissions      107  
   18.16    Provisions for the Benefit of Lenders Only - Power of Attorney for Quebec Purposes      108  
   18.17    Defaulting Lenders      108  
   18.18    Provisions for the Benefit of Lenders Only      109  
   18.19    Resignation of Agent      109  
   18.20    No Novation      110  

19.

   CERTAIN PROVISIONS RELATING TO THE FINNVERA TERM FACILITY      110  
   19.1      Application of Article 18      110  
   19.2      Notice by Agent to the Finnvera Facility Agent      110  
   19.3      Confirmation of Sharing      110  

20.

   FORMAL DATE      110  
   20.1      Formal Date      110  

 

SCHEDULE “A” - LIST OF LENDERS AND COMMITMENTS

SCHEDULE “B” - NOTICE OF BORROWING AND CERTIFICATE

SCHEDULE “B-1” - NOTICE OF REPAYMENT

SCHEDULE “B-2” - NOTICE OF CONVERSION OF COMMITMENTS

SCHEDULE “C” – ASSIGNMENT AND ASSUMPTION

SCHEDULE “C-1” - LOAN MARKET DATA TEMPLATE

SCHEDULE “D” – FORM OF GUARANTEE

SCHEDULE “E” – FORM OF SHARE PLEDGE

SCHEDULE “F” - OFFICER’S CERTIFICATE

SCHEDULE “G” - INTENTIONALLY DELETED

 

6.


SCHEDULE “H” – EXISTING DEBT FROM ADDITIONAL OFFERINGS, AT THE CLOSING DATE

SCHEDULE “I” – PROPERTY OF THE VL GROUP

SCHEDULE “J” - OFFICER’S COMPLIANCE CERTIFICATE

SCHEDULE “K” - INTENTIONALLY DELETED

SCHEDULE “L” - GUARANTORS AND MEMBERS OF THE VL GROUP AS AT THE THIRD AMENDMENT CLOSING DATE

SCHEDULE “M” – INTENTIONALLY DELETED

SCHEDULE “N” – FORM OF SUBORDINATION AGREEMENT FOR BACK-TO-BACK SECURITIES

SCHEDULE “O” – JOINDER AGREEMENT

SCHEDULE “P” – FINNVERA TERM FACILITY

 

7.


AMENDED AND RESTATED CREDIT AGREEMENT originally dated as of November 28, 2000, as amended and restated as of July 20, 2011, entered into in the City of Montreal, Province of Quebec, as amended by a First Amending Agreement dated as of June 14, 2013, a Second Amending Agreement dated as of January 28, 2015, and as amended and restated by a Third Amending Agreement dated as of June 16, 2015

 

AMONG:    VIDÉOTRON LTÉE , a company constituted in accordance with the laws of Quebec, having its registered office at 612 St-Jacques Street, 18 th  floor, in the City of Montreal, Province of Quebec (hereinafter called the “ Borrower ”)
AND:    THE FINANCIAL INSTITUTIONS NAMED ON THE SIGNATURE PAGE HEREOF OR FROM TIME TO TIME PARTIES HERETO (hereinafter called the “ Lenders ”)
AND:    ROYAL BANK OF CANADA, AS ADMINISTRATIVE AGENT FOR THE LENDERS, a Canadian bank, having a place of business at 20 King Street West, 4th Floor, Toronto, Province of Ontario, M5H 1C4 (hereinafter called the “ Agent ”)
AND:    HSBC BANK PLC , AS FINNVERA FACILITY AGENT , a bank governed by the laws of England and Wales, having a place of business at 8 Canada Square, Canary Wharf, London, UK, E14 5HQ (hereinafter called the “ Finnvera Facility Agent ”)

WHEREAS the Borrower wishes to borrow certain amounts from the Lenders and the Lenders have agreed to lend such amounts to the Borrower, subject to and in accordance with the provisions hereof;

NOW THEREFORE, THE PARTIES HERETO HAVE AGREED AS FOLLOWS:

 

1. INTERPRETATION

 

  1.1 Definitions

The following words and expressions, when used in this Agreement or in any agreement supplementary hereto, unless the contrary is stipulated, have the following meaning:

1.1.1 “ Acquisition ” means, with respect to any Person, any transaction or series of related transactions whereby such Person acquires, directly or indirectly, (a) a business, division, or all or a substantial portion of the assets of any other Person; (b) any Investment; or (c) by way of reorganization, consolidation, amalgamation, winding-up, merger, transfer, sale, lease or other combination, the assets or shares of any other Person; and “ Acquire ” and “Acquired ” have meanings correlative thereto.


1.1.2 “ Additional Offering ” means an Offering of unsecured Debt incurred or issued by the Borrower having, at the time of incurrence of any such Debt, a maturity date (meaning the ultimate maturity date on which repayment can be required by the lender, not the date of any initial maturity leading to an automatic conversion or replacement into different Debt, or Equity Interests) expiring after the expiry of the Term of the Revolving Facility, the terms and conditions of which Offering (including any automatic conversion or replacement as aforesaid and excluding, for greater certainty, (a) pricing, and (b) the right to require a replacement via an unsecured term loan or an offering of unsecured high yield Debt in an amount equal to the Additional Offering being replaced (“ AO Replacement Debt ”)) are no more favourable to the Persons providing such Debt, in all material respects, than the provisions hereof applicable to the Revolving Facility; for greater certainty, for the purposes of paragraph (f) of Section 13.7, any such AO Replacement Debt will not be considered a new incurrence of Debt.

1.1.3 “ Adjusted Consolidated ” means produced by commencing with the consolidated financial statements or accounts of the Borrower and subtracting the assets, Debt, EBITDA and other results of any Subsidiary of the Borrower that is not a member of the VL Group, all as otherwise determined in accordance with GAAP.

1.1.4 “Administrative Questionnaire” means an administrative questionnaire in the form provided by the Agent from time to time.

1.1.5 “ Advance ” means any advance by a Lender under this Agreement, including, with respect to (a) the Revolving Facility, direct Advances by way of Prime Rate Advances and Swing Line Advances, and indirect Advances by way of BA Advances and the issuance of Letters of Credit, (b) the Unsecured Facility, direct Advances by way of Prime Rate Advances, and indirect Advances by way of BA Advances and the issuance of Letters of Credit, and (c) the Finnvera Term Facility, the “Tranche A CDOR Advances” as defined in Schedule “P”.

1.1.6 “ Affected Lender ” has the meaning ascribed to it in Section 18.15.

1.1.7 “ Affiliate ” has the meaning ascribed thereto in the Canada Business Corporations Act.

1.1.8 “ Agency Branch ” means the branch of the Agent located at Royal Bank Plaza, South Tower, 12th Floor, in the City of Toronto, Province of Ontario, M5J 2W7, or such other address in Canada of which the Agent may notify the Borrower from time to time.

 

2.


1.1.9 “ Agent ” means Royal Bank of Canada in its capacity as agent for all of the Lenders under the Revolving Facility and the Unsecured Facility, and as collateral agent for all of the Lenders (provided that the Agent will act as collateral agent on behalf of the Unsecured Facility Lenders solely in connection with all Guarantees, since the Unsecured Facility Lenders do not benefit from the Security other than the Guarantees), and “ Agents ” means the Agent together with the Finnvera Facility Agent.

1.1.10 “ Agreement ”, “ Credit Agreement ”, “ these presents ”, “ herein ”, “ hereby ”, “ hereunder ” and other similar expressions refer collectively to this Amended and Restated Credit Agreement and the Schedules and appendices hereto as same may be amended or amended and restated from time to time, and include any deed or document which is supplementary or accessory or which is made in order to complete this Agreement, as all of same may subsequently be amended, amended and restated, modified, supplemented or replaced from time to time.

1.1.11 “ Annual Business Plan ” means, for any financial year, (a) detailed projected balance sheets, income statements, statements of cash flows and Capital Expenditures budgets of the Borrower, prepared on a consolidated basis, in respect of such financial year and each financial quarter therein and in respect of, and as at the last day of, each of the next two following financial years, in each case supported by appropriate explanations, notes and information and commentary, and (b) a detailed narrative of the businesses of the Borrower for the financial year then ended and for the following financial year which shall include a management discussion and analysis, in sufficient detail, all as approved by the board of directors of the Borrower.

1.1.12 “ Applicable Law ” or “ Applicable Laws ” means (a) any domestic or foreign statute, law (including common and civil law), treaty, code, ordinance, rule, regulation, restriction or by-law (zoning or otherwise); (b) any judgment, order, writ, injunction, decision, ruling, decree or award; (c) any regulatory policy, practice, guideline or directive; or (d) any franchise, licence, qualification, authorization, consent, exemption, waiver, right, permit or other approval of any Governmental Authority, binding on or affecting the Person referred to in the context in which the term is used or binding on or affecting the property of such Person.

1.1.13 “ Applicable Percentage ” means, with respect to any Lender, the Secured Applicable Percentage or the Unsecured Applicable Percentage, as the case may be.

1.1.14 “ Approved Fund ” means any Person (other than a natural Person) that (a) is or will be engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its business, and (b) is administered or managed by a Lender, an Affiliate of a Lender or an entity or an Affiliate of an entity that administers or manages a Lender.

 

3.


1.1.15 “ Asset Disposition ” means the sale, lease, transfer, assignment or other disposition or alienation of any of the property (including Equity Interests) of any member of the Relevant Group.

1.1.16 “ Assignment ” means an assignment of all or a portion of a Revolving Facility Lender’s or an Unsecured Facility Lender’s rights and obligations under this Agreement in accordance with Section 16.2, and “ Assignee ” means an Eligible Assignee who has entered into an Assignment and Assumption Agreement.

1.1.17 “ Assignment and Assumption Agreement ” means an agreement substantially in the form annexed hereto as Schedule “C”.

1.1.18 “ Associate ” has the meaning ascribed thereto in the Canada Business Corporations Act.

1.1.19 “ BA Advance ” means at any time the part of the Advances under the Revolving Facility or the Unsecured Facility which the Borrower has chosen to borrow by Bankers’ Acceptances, calculated based on the face amount of such Bankers’ Acceptances.

1.1.20 “ BA Proceeds ” means, (a) for any Bankers’ Acceptance issued hereunder, an amount calculated on the applicable Acceptance Date (as defined in subsection 6.1.1) by multiplying: i) the face amount of the Bankers’ Acceptance by ii) the following fraction:

 

1

(1+ (Bankers’ Acceptance Discount Rate × Designated Period (in days)÷365)),

with such fraction being rounded up or down to the fifth decimal place and .00005 being rounded up; and (b) with respect to Assignees that are not banks or that do not accept Bankers’ Acceptances, the face amount of Discount Notes issued to them, less a discount established in the same manner as provided in (a) above (with references to “Bankers’ Acceptances” being replaced by references to “Discount Notes”).

1.1.21 “ BA Schedule I Reference Lender ” means Royal Bank of Canada or such other Lender which is a Schedule I bank under the Bank Act (Canada) appointed by the Agent with the consent of the Borrower in replacement of the said Lender.

1.1.22 “ BA Schedule II Reference Lenders ” means Bank of America, N.A. Canada Branch and Caisse centrale Desjardins, or such other Lenders which are Schedule II or Schedule III banks under the Bank Act (Canada) appointed by the Agent with the consent of the Borrower in replacement of such Lenders.

 

4.


1.1.23 “ Back-to-Back Debt ” means any loans made or debt instruments issued as part of a Back-to-Back Transaction and in which each party to such Back-to-Back Transaction, other than the Borrower or a Guarantor, executes a subordination agreement in favour of the Agent in substantially the form attached hereto as Schedule “N”

1.1.24 “ Back-to-Back Preferred Shares ” means preferred shares issued:

(a) to a member of the Relevant Group by an Affiliate of the Borrower in circumstances where, immediately prior to the issuance of such preferred shares, an Affiliate of such member of the Relevant Group has loaned on an unsecured basis to such member of the Relevant Group, or an Affiliate of such member of the Relevant Group has subscribed for preferred shares of such member of the Relevant Group in an amount equal to, the requisite subscription price for such preferred shares;

(b) by a member of the Relevant Group to one of its Affiliates in circumstances where, immediately prior to or immediately after, as the case may be, the issuance of such preferred shares, such member of the Relevant Group has loaned an amount equal to the proceeds of such issuance to an Affiliate on an unsecured basis; or

(c) by a member of the Relevant Group to one of its Affiliates in circumstances where, immediately after the issuance of such preferred shares, such member of the Relevant Group has used all of the proceeds of such issuance to subscribe for preferred shares issued by an Affiliate;

in each case on terms whereby:

(i) the aggregate redemption amount applicable to the preferred shares issued to or by such member of the Relevant Group is identical:

(A) in the case of (a) above, to the principal amount of the loan made or the aggregate redemption amount of the preferred shares subscribed for by such Affiliate prior to the issuance thereof;

(B) in the case of (b) above, to the principal amount of the loan made to such Affiliate with the proceeds of the issuance thereof; or

(C) in the case of (c) above, to the aggregate redemption amount of the preferred shares issued by such Affiliate with the proceeds of the issuance thereof;

(ii) the dividend payment date applicable to the preferred shares issued to or by such member of the Relevant Group will:

(A) in the case of (a) above, be immediately prior to the interest payment date relevant to the loan made or the dividend payment date on the preferred shares subscribed for by such Affiliate immediately prior to the issuance thereof;

 

5.


(B) in the case of (b) above, be immediately after the interest payment date relevant to the loan made to such Affiliate with the proceeds of the issuance thereof; or

(C) in the case of (c) above, be immediately after the dividend payment date on the preferred shares issued by such Affiliate with the proceeds of the issuance thereof;

(iii) the amount of dividends provided for on any payment date in the share conditions attaching to the preferred shares issued:

(A) to a member of the Relevant Group in the case of (a) above, will be equal to or in excess of the amount of interest payable in respect of the loan made or the amount of dividends provided for in respect of the preferred shares subscribed for by such Affiliate prior to the issuance thereof;

(B) by a member of the Relevant Group in the case of (b) above, will be equal to or less than the amount of interest payable in respect of the loan made to such Affiliate with the proceeds of the issuance thereof; or

(C) by a member of the Relevant Group in the case of (c) above, will be equal to the amount of dividends in respect of the preferred shares issued by such Affiliate with the proceeds of the issuance thereof.

Provided, for greater certainty, that in all cases, (I) the redemption of any preferred shares by a member of the Relevant Group, (II) the repayment of any Back-to-Back Debt by a member of the Relevant Group, (III) the payment of any dividends by a member of the Relevant Group in respect of its preferred shares, and (IV) the payment of any interest on Back-to-Back Debt of a member of the Relevant Group, may, in each case, be made by a member of the Relevant Group solely by delivering the relevant Back-to-Back Securities to the Affiliate in question, or by paying to the Affiliate an amount in cash not in excess of the amount already received in cash from such Affiliate. Notwithstanding the foregoing, the requirement set out above with respect to the timing and order of events or to the effect that certain amounts stipulated in (ii) and (iii) above must be equal to or not in excess of or not less than certain other amounts stipulated thereunder shall not apply to Back-to-Back Transactions between members of the Relevant Group provided the exchange of payments relating to such transactions are completed on the same day absent administrative, technical or technological constraints.

1.1.25 “ Back-to-Back Securities ” means the Back-to-Back Preferred Shares or the Back-to-Back Debt or both, as the context requires.

1.1.26 “ Back-to-Back Transactions ” means any of the transactions described under the definition of Back-to-Back Preferred Shares.

 

6.


1.1.27 “ Bankers’ Acceptance ” means a non-interest bearing draft or bill of exchange in Canadian Dollars drawn and endorsed by the Borrower and accepted by a Lender in accordance with the provisions of Article 6, and includes a Discount Note where the context permits. In cases where the Lenders elect to use a clearing house as contemplated by the Depository Bills and Notes Act (S.C. 1998 c. 13) (the “ Act ”), “ Bankers’ Acceptance ” shall mean a depository bill (as defined in the Act) in Canadian Dollars signed by the Borrower and accepted by a Lender. Drafts or bills of exchange that become depository bills may nevertheless be referred to herein as “drafts”.

1.1.28 “ Bankers’ Acceptance Discount Rate ” means (a) in respect of Bankers’ Acceptances to be purchased by the Lenders which are Schedule I banks under the Bank Act (Canada), the average rate for Canadian Dollar bankers’ acceptances having Designated Periods of 1, 2, 3, or 6 months quoted on Reuters Service, page CDOR “Canadian Interbank Bid BA Rates” (the “ CDOR Rate ”), having an identical Designated Period to that of the Bankers’ Acceptance to be issued on such day, and (b) in respect of Bankers’ Acceptances to be purchased by the Lenders which are Schedule II or Schedule III banks under the Bank Act (Canada) and in respect of Discount Notes, the lesser of (i) the arithmetic average (rounded upward to the nearest one hundredth of one percent (.01%)) of the discount rates for Canadian Dollar bankers’ acceptances quoted by the BA Schedule II Reference Lenders, and (ii) the rate specified in (a) above plus 10 basis points (.10%) (in each of cases (a) and (b), the “ Discount Rates ”). In all cases, the Discount Rates shall be quoted at approximately 10:00 a.m. (Montreal time) on the Acceptance Date calculated on the basis of a year of 365 days.

In the absence of any such quote, the Bankers’ Acceptance Discount Rate which would have been determined in accordance with paragraph (a) or paragraph (b) above, respectively, shall be equal to the rate determined from time to time by the Agent as the discount rates for bankers’ acceptances of:

(A) in the case of paragraph (a), the BA Schedule I Reference Lender; and

(B) in the case of paragraph (b), the BA Schedule I Reference Lender plus 10 basis points (.10%);

established in accordance with its normal practices in amounts equal to the Selected Amount, having an identical Designated Period to that of the proposed Bankers’ Acceptances to be issued on such day.

1.1.29 “ Banking Day ” means any day which is at the same time a Business Day and a day on which banking institutions are not authorized by law or by local proclamation to close for business in New York (USA) and in London (England).

 

7.


1.1.30 “ Branch ” means the branch of Royal Bank of Canada located at 1 Place Ville Marie, or any other branch designated by the Agent from time to time by notice to the Borrower.

1.1.31 “ Business Day ” means any day, except Saturdays, Sundays and other days which in Montreal or Toronto (Canada) are holidays or a day upon which banking institutions are not authorized or required by law or by local proclamation to close.

1.1.32 “ Canadian Dollars ”, “ Cdn.  $” or “ $ ” means the lawful currency of Canada.

1.1.33 “ Capital Expenditures ” means the aggregate amount actually paid in cash in any period by the Relevant Group for or in connection with the acquisition or maintenance of assets required to be capitalized, including expenditures of the type described in the last sentence of Section 13.8, determined in accordance with GAAP, other than, for greater certainty, expenditures for Acquisitions permitted by Section 13.6.

1.1.34 “ Capital Lease ” means any lease which is required to be capitalized on a balance sheet of the lessee in accordance with GAAP.

1.1.35 “ Cash Equivalents ” means, as of the date of any determination thereof, instruments of the following types:

 

  1.1.35.1 obligations of or unconditionally guaranteed by the governments of Canada or the United States of America (“ USA ”), or any agency of any of them backed by the full faith and credit of the governments of Canada or the USA, respectively, maturing within 364 days of acquisition;

 

  1.1.35.2 marketable direct obligations of the governments of one of the provinces of Canada, one of the states of the USA, or any agency thereof, or of any county, department, municipality or other political subdivision of Canada or the USA, the payment or guarantee of which constitutes a full faith and credit obligation of such province, state, municipality or other political subdivision, which matures within 364 days of acquisition and which is currently accorded a short-term credit rating of at least A-1 by Standard & Poor’s Rating Services, a division of The McGraw-Hill Companies, Inc. (“ S & P ”) or at least Prime-1 by Moody’s Investors Service, Inc. (“ Moody’s ”) or the equivalent thereof from Dominion Bond Rating Service Inc. (“ DBRS ”);

 

8.


  1.1.35.3 commercial paper, bonds, notes, debentures and bankers’ acceptances issued by a Person residing in Canada or the USA and not referred to in subsections 1.1.35.1, 1.1.35.2 or 1.1.35.4, and maturing within 364 days from the date of issuance which, at the time of acquisition, is accorded a short-term credit rating of at least A-1 by S & P or at least Prime-1 by Moody’s or the equivalent thereof from DBRS;

 

  1.1.35.4 (a) certificates of deposit maturing within 364 days from the date of issuance thereof, issued by a bank or trust company organized under the laws of the USA, any state thereof, or Canada or any province thereof, or (b) US Dollar certificates of deposit maturing within 364 days of acquisition and issued by a bank in western Europe or the United Kingdom, in all cases having capital, surplus and undivided profits aggregating at least US $500,000,000 (or its equivalent in Canadian Dollars) and whose short-term credit rating is, at the time of acquisition thereof, rated A-1 or better by S & P or Prime-1 or better by Moody’s (or the equivalent thereof from DBRS).

1.1.36 “ Change in Control ” means (a) the acquisition by any Person or group of Persons acting in concert (other than Quebecor Inc. or any of its subsidiaries or the Péladeau Group) of a majority of the votes attached to the outstanding Equity Interests of the Borrower or any other member of the VL Group (unless, in the case of a member of the VL Group, resulting from a permitted Asset Disposition), or (b) any event which results in more than a majority of the votes attached to the outstanding Equity Interests of Quebecor Media Inc. being held by a Person other than Quebecor Inc. or any of its subsidiaries or the Péladeau Group.

1.1.37 “ Change in Law ” means the occurrence, after the Closing Date, of any of the following: (a) the adoption or taking effect of any Applicable Law, including without limitation the Dodd-Frank Wall Street Reform and Consumer Protection Act , (b) any change in any Applicable Law or in the administration, interpretation or application thereof by any Governmental Authority, including any such change resulting from any quashing by a Governmental Authority of an interpretation of any Applicable Law, (c) the making or issuance of any Applicable Law by any Governmental Authority, or (d) the implementation of the recommendations of the Bank for International Settlements or the Basel Committee on Banking Regulations and Supervisory Practices (or any successor or similar entity).

1.1.38 “ Charge ” means, in respect of any Person, any mortgage, debenture, pledge, hypothec, lien, prior claim, charge, assignment by way of security, hypothecation, or security interest granted or permitted by such Person or arising by operation of law, in respect of any of such Person’s property (including any servitude, usufruct or other real right encumbering such property), or any

 

9.


consignment of property by such Person as consignee or lessee or any other security agreement, trust or arrangement having the effect of security for the payment of any debt, liability or obligation. Solely for the purposes of determining whether a Charge exists for the purposes of this Agreement, a Person shall be deemed to be the owner of any property which it has acquired or holds subject to a conditional sale agreement, Capital Lease, Synthetic Lease or other arrangement pursuant to which title to the property has been retained by or vested in some other Person for security purposes and such retention or vesting shall constitute a Charge.

1.1.39 “ Closing Date ” means July 20, 2011.

1.1.40 “ Commitment ” means the portion of the Credit for which a Lender is responsible, as set out in Schedule “A” hereof (as same may be increased or cancelled from time to time pursuant to terms of this Agreement, including under Sections 2.3, 2.4 or 8.2).

1.1.41 “ Compliance Certificate ” has the meaning ascribed to it in subsection 12.15.1.

1.1.42 “ Contingent Obligation ” of any Person means all contingent liabilities required to be included in the financial statements of such Person in accordance with GAAP, excluding any notes thereto.

1.1.43 “ Conversion Date-Partial ” has the meaning ascribed to it in Section 2.3.

1.1.44 “ Conversion Date-Total ” has the meaning ascribed to it in Section 2.3.

1.1.45 “ Conversion Notice-Partial ” has the meaning ascribed to it in Section 2.3.

1.1.46 “ Conversion Notice-Total ” has the meaning ascribed to it in Section 2.3.

1.1.47 “ Core Business ” means the business described in Section 11.4.

1.1.48 “ Credit ” means the aggregate amount available to the Borrower under all of the Facilities, or under any particular Facility, depending on the context.

1.1.49 “ CRTC ” means the Canadian Radio-television and Telecommunications Commission, or a successor regulatory body, commission or agency.

1.1.50 “ Debentures ” means the Debentures issued by the Borrower and the Guarantors in favour of a collateral agent designated by the Agent in accordance with the provisions of subsection 9.1.3.

 

10.


1.1.51 “ Debenture Pledge ” means the pledge of the Debenture in favour of the Agent or any designated collateral agent by the Borrower and the Guarantors.

1.1.52 “ Debt ” includes, for any Person or with respect to the Relevant Group,

 

  1.1.52.1 obligations in respect of borrowed money, whether or not evidenced by notes, bonds, debentures or similar evidences of indebtedness of such Person;

 

  1.1.52.2 obligations in respect of borrowed money and the Hedging Exposure, but without duplication of any underlying Debt that may be hedged by same, and, in particular, without taking into account the currency hedging in respect of the US$ denominated Debt referred to in the final paragraph of this definition;

 

  1.1.52.3 obligations representing the deferred purchase price of goods and services, other than such obligations incurred in the ordinary course of business of the Relevant Group and payable within a period not exceeding 150 days from the date of their incurrence;

 

  1.1.52.4 the obligations, whether or not assumed, which are secured by Charges on the property belonging to such Person or payable out of the proceeds flowing therefrom;

 

  1.1.52.5 Contingent Obligations;

 

  1.1.52.6 obligations under Capital Leases and Synthetic Leases; and

 

  1.1.52.7 obligations under letters of credit, letters of guarantee, bankers’ acceptances or Guarantees;

but shall not include Debt under the Back-to-Back Securities. In addition, any Debt denominated in US$ which is validly and effectively hedged through the use of one or more Derivative Instruments will be calculated at the exchange rate applicable to such US$ Debt under the applicable Derivative Instrument. Finally, for the purpose of calculating the Leverage Ratio only, the amount of cash and Cash Equivalents of the Relevant Group on the date of determination shall be deducted from the amount of any Debt (for greater certainty, other than Debt under the Revolving Facility, the Unsecured Facility, or any other revolving facility not resulting in a permanent reduction of such Debt) required to be repaid following the issuance of an irrevocable repayment notice, if and only to the extent that such Debt would have been included in the computation of the Leverage Ratio.

 

11.


1.1.53 “ Default ” means an event or circumstances, the occurrence or non-occurrence of which would, with the giving of a notice, lapse of time or combination thereof, constitute an Event of Default unless remedied within the prescribed delays or renounced to in writing by the Agent, as authorized by the Lenders.

1.1.54 “ Defaulting Lender ” means any Lender, as determined by the Agent (with respect to the Revolving Facility or the Unsecured Facility) or the Finnvera Facility Agent (with respect to the Finnvera Term Facility), that:

 

  1.1.54.1 has failed to fully fund its share of any Advance or fulfill its obligations under Section 4.2 or 4.3 within 2 Banking Days of the date it is required to do so under this Agreement;

 

  1.1.54.2 has notified the Borrower, the Agent (or in the case of a Defaulting Lender under the Finnvera Term Facility, the Finnvera Facility Agent) or any other Lender in writing that it does not intend to comply with any of its funding obligations under this Agreement (including Sections 4.2 and 4.3), has issued financial statements containing a “going concern” or similar qualification or indicating a potential inability to comply with funding obligations generally, or has made a public statement to the effect that it does not intend or is unable to comply with its funding obligations under this Agreement or generally under other agreements in which it commits to extend credit;

 

  1.1.54.3 has failed, within 2 Banking Days after request by the Agent (or in the case of a Defaulting Lender under the Finnvera Term Facility, the Finnvera Facility Agent), to confirm that it will comply with its funding obligations under this Agreement (including Sections 4.2 and 4.3);

 

  1.1.54.4 has otherwise failed to pay over to the Agent (or in the case of a Defaulting Lender under the Finnvera Term Facility, the Finnvera Facility Agent) or any other Lender any other amount required to be paid by it under this Agreement within 3 Banking Days of the date when due, unless payment is the subject of a good faith dispute;

 

  1.1.54.5 has become or is insolvent, is deemed to be insolvent, or is controlled by a Person that has become or is insolvent or deemed to be insolvent; or

 

  1.1.54.6

has itself or is controlled by a Person that has (i) become the subject of a bankruptcy or insolvency proceeding, (ii) had a receiver, conservator, trustee, administrator, assignee for the

 

12.


  benefit of creditors or similar Person charged with reorganization or liquidation of its business or custodian, appointed for it, or (iii) taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or appointment;

provided that, for the avoidance of doubt, a Lender shall not be a Defaulting Lender solely by virtue of the ownership, control or acquisition of any Equity Interest in or control of such Lender by a Governmental Authority.

1.1.55 “ Derivative Instrument ” means an agreement entered into from time to time by a Person in order to control, fix or regulate currency exchange fluctuations, or the rate of interest payable on borrowings, including a rate swap transaction, basis swap, forward rate transaction, commodity swap, commodity option, equity or index equity swap, equity or index equity option, bond option, interest rate option, foreign exchange transaction, cap transaction, floor transaction, collar transaction, currency swap transaction, cross-currency rate swap transaction, currency option or any other similar transaction (including any option with respect to any of these transactions and any combination of these transactions).

1.1.56 “ Derivative Obligations ” means the Hedging Exposure and all other obligations of the Borrower to one or more Revolving Facility Lenders under Derivative Instruments.

1.1.57 “ Designated Period ” means, with respect to a BA Advance, a period designated by the Borrower in accordance with Sections 6.1 and 6.4.

1.1.58 “ Disbursement Period ” means, with respect to (a) the Revolving Facility, the period from the Original Closing Date until the expiry of the Term, subject to satisfying the applicable conditions precedent set out in Article 10, (b) the Unsecured Facility, the period from the Third Amendment Closing Date until the expiry of the Term, subject to satisfying the applicable conditions precedent set out in Article 10, and (c) the Finnvera Term Facility, the “Availability Period” as defined in Schedule “P” hereof.

1.1.59 “ Discount Note ” means a non-interest bearing promissory note denominated in Canadian Dollars issued by the Borrower to a Revolving Facility Lender, an Unsecured Facility Lender or a sub-participant which is a Non-BA Lender (as defined in subsection 6.1.2(b)), such note to be in the form normally used by such Lender or sub-participant.

1.1.60 “ EBITDA ” means, with respect to any Person or the Relevant Group during a financial period, earnings before non-controlling interests, earnings from equity-accounted investments, extraordinary items, non-recurring gains or losses on debt extinguishment and asset sales and restructuring, Interest Expense, Taxes (to the extent taken into account for the purposes of determining net income),

 

13.


depreciation and amortization, foreign exchange translation gains or losses not involving the payment of cash, other non-cash financial charges, reconnection costs, subscribers’ subsidies revenues net of related costs, and deferred installation revenues net of related costs without taking into account any goodwill adjustments, calculated in accordance with GAAP; for greater certainty, there shall be excluded from the calculation of EBITDA, to the extent included in such calculation, (a) the amount of any income or expense relating to Back-to-Back Securities, and (b) the EBITDA from any Subsidiary that is not a member of the Relevant Group except to the extent of the cash dividends or other distributions received from such Subsidiary that is not a member of the Relevant Group, net of any reinvestments by the Relevant Group in such Subsidiary.

EBITDA shall (A) exclude the EBITDA of (a) any Person and (b) every division, line of business or group of operating assets used in carrying on a distinct business (collectively called an “ Operating Business ”) that (in the case of either (a) or (b) above) no longer belong to a member of the Relevant Group (a “ Former Contributor ”) on the last day of such period which would otherwise be included in such results of operations of the Borrower because such Former Contributor or Operating Business, as the case may be, has been disposed of during such period; and (B) include the EBITDA for such period of each Person and of every Operating Business that, during such period, became (or, in the case of an Operating Business, became part of) a member of the Relevant Group and which is (or is comprised within) a member of the Relevant Group on the last day of such period on a pro forma basis for such period, based on audited historical results of operations, or, if unavailable, reasonable projections satisfactory to the Agent.

1.1.61 “ Eligible Assignee ” means (a) a Lender, (b) an Affiliate of a Lender, (c) an Approved Fund, and (d) any other Person (other than a natural person), in respect of each of which the consent of any party whose consent is required by Section 16.2.1 has been obtained; provided that notwithstanding the foregoing, “ Eligible Assignee ” shall not include any member of the VL Group or any Affiliate thereof.

1.1.62 “ Environmental Laws ” means all applicable Canadian and other applicable jurisdictions’ federal, state, provincial, local and other foreign statutes and codes or regulations, rules or ordinances issued, promulgated or approved thereunder, as well as all other Applicable Laws, and all common laws under which environmental liabilities can arise, now or hereafter in effect (including those with respect to asbestos or asbestos-containing material or exposure to asbestos or asbestos-containing material, urea formaldehyde foam insulation, transformers or other equipment that contain dielectric fluid containing regulated levels of polychlorinated biphenyls, and radon gas), to the extent relating to pollution or protection of the environment and public health and relating to (a) emissions, discharges, releases or threatened releases of pollutants, contaminants, chemicals or industrial toxic or hazardous constituents, substances or wastes (including any Hazardous Substance, petroleum including crude oil or any fraction thereof, any

 

14.


petroleum product or other waste, chemicals or substances regulated by any such statute, codes, regulations, rules or ordinances) into the environment (including ambient air, surface water, ground water, land surface or subsurface strata), and (b) the manufacture, processing, distribution, use, generation, treatment, storage, disposal, transport or handling of any Hazardous Substance, petroleum including crude oil or any fraction thereof, any petroleum product or other waste, chemicals or substances regulated by any such statute, codes, regulations, rules or ordinances, and (c) underground storage tanks and related piping, and emissions, discharges and releases or threatened releases therefrom.

1.1.63 “ Equity Interests ” means, with respect to any Person, all shares, interests, units, participations or other equivalent equity interests (however designated, whether voting or non-voting) of such Person’s capital, whether now outstanding or issued after the Closing Date, including common shares, preferred shares, membership interests in a limited liability company, limited or general partnership interests in a partnership, trust units, or any other equivalent of such ownership interests.

1.1.64 “ Equivalent Amount ” has the meaning ascribed to it in Section 15.2.

1.1.65 “ Event of Default ” means one or more of the events described in Section 14.1, as well as one or more of the Events of Default as described in Section 9 of Schedule “P”.

1.1.66 “ Excess Cash Flow ” means, with respect to the Relevant Group, the EBITDA calculated as at the end of each financial quarter, plus an amount equal to any spread paid to a member of the Relevant Group resulting from Back-to-Back Securities, to the extent not previously included in EBITDA, and less:

 

  1.1.66.1 the amount of Taxes paid or otherwise due during the period in question;

 

  1.1.66.2 the amount of any Interest Expense paid in cash (and not accrued); however, for the purposes of this definition alone, “Interest Expense” shall include all fees and expenses relating to any Offering and premiums paid to retire Debt, except to the extent that the fees and expenses in question are paid for out of the proceeds of such Offering and not out of the Relevant Group’s cash flow;

 

  1.1.66.3 the amount of all voluntary prepayments of Debt, other than (a) payments under the Revolving Facility and under the Unsecured Facility, (b) voluntary prepayments using the proceeds of Asset Dispositions and Offerings, and (c) voluntary prepayments of the QMI Subordinated Debt made in accordance with Section 13.9 hereof;

 

15.


  1.1.66.4 the amount of extraordinary items not included in earnings but which required the payment of cash;

 

  1.1.66.5 the amount of any mandatory principal repayment of Debt that is permitted hereunder; and

 

  1.1.66.6 the amount of Capital Expenditures (adjusted for the inclusion of reconnection costs, video rental inventories, deferred charges in connection with subscriber subsidies, reclassification of telephony modems and the proceeds from disposal of subscriber equipment) made during such period that has not been financed separately out of (i) the proceeds of Debt permitted hereunder; (ii) equity obtained after the date hereof; or (iii) the Net Proceeds arising out of Asset Dispositions made during the period;

provided, however, that no amount will be so deducted if such amount has already been deducted from EBITDA.

1.1.67 “ Excluded Taxes ” means, with respect to the Agent, any Lender (which term, for the avoidance of doubt, shall include the Issuing Lender and the Swing Line Lender when used in this definition of “Excluded Taxes”) or any other recipient of any payment to be made by or on account of any obligation of the Borrower hereunder, (a) Taxes imposed on or measured by its overall net income (however denominated), and franchise taxes imposed on it (in lieu of net income taxes), by the jurisdiction (or any political subdivision thereof) under the laws of which such recipient is organized or in which its principal office is located or, in the case of any Lender, in which its applicable lending office is located, (b) any branch profits taxes or any similar Tax imposed by any jurisdiction in which the Agent or such Lender is located and (c) in the case of a Foreign Lender (other than (i) a Foreign Lender that is a party hereto on the Closing Date, (ii) an Assignee pursuant to a request by the Borrower under Section 7.5.2, (iii) an Assignee pursuant to an Assignment made when an Event of Default has occurred and has not been waived or (iv) any other Assignee to the extent that the Borrower has expressly agreed that any withholding tax shall be an Indemnified Tax), any withholding tax that is imposed on amounts payable to such Foreign Lender at the time such Foreign Lender becomes a party hereto (or designates a new lending office) or is attributable to such Foreign Lender’s failure or inability (other than as a result of a Change in Law) to comply with Section 7.3.5, except to the extent that such Foreign Lender (or its assignor, if any) was entitled, at the time of designation of a new lending office (or assignment), to receive additional amounts from the Borrower with respect to such withholding tax pursuant to Section 7.3. For greater certainty, for purposes of item (c) above, a withholding tax includes any Tax that a Foreign Lender is required to pay pursuant to Part XIII of the Income Tax Act (Canada) or any successor provision thereto.

 

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1.1.68 “ Facility ” means the Revolving Facility, the Unsecured Facility, the Finnvera Term Facility or a New Facility, and “ Facilities ” means all of them.

1.1.69 “ Federal Funds Effective Rate ” means, for any period, a fluctuating interest rate per annum equal, for each day during such period, to the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System arranged by Federal Funds brokers as published for such day (or, if such day is not a Banking Day, for the immediately preceding Banking Day) by the Federal Reserve Bank of New York or, for any day on which such rate is not so published for such day by the Federal Reserve Bank of New York, the average of the quotations for such day for such transactions received by the Agent from three Federal Funds brokers of recognized standing selected by the Agent. If for any reason the Agent shall have determined (which determination shall be conclusive, absent manifest error) that it is unable to ascertain the Federal Funds Effective Rate for any reason, including without limitation, the inability or failure of the Agent to obtain sufficient bids or publications in accordance with the terms hereof, Royal Bank of Canada’s announced US Base Rate will apply.

1.1.70 “ Fees ” means the Revolving Facility Fees, the Unsecured Facility Fees and the Finnvera Fees.

1.1.71 “ Finnvera Facility Agent ” has the meaning ascribed to it in Schedule “P”.

1.1.72 “ Finnvera Facility Lender ” means a “Tranche A Lender”, as such term is defined in Schedule “P”.

1.1.73 “ Finnvera Fees ” means the “Tranche A Fees”, the Commitment Fees and the Finnvera Handling Fee, as such terms are defined in Schedule “P”.

1.1.74 “ Finnvera Term Facility ” means the Facility under which the portion of the Credit described in subsection 2.1.3 is available, which Facility is more fully described in Schedule “P”.

1.1.75 “ First Currency ” has the meaning ascribed to it pursuant to Section 15.1.

1.1.76 “ Foreign Lender ” means any Lender that is not organized under the laws of the jurisdiction in which the Borrower is resident for tax purposes and that is not otherwise considered or deemed to be resident for income tax or withholding tax purposes in the jurisdiction in which the Borrower is resident for tax purposes by application of the laws of that jurisdiction. For purposes of this definition, Canada and each Province and Territory thereof shall be deemed to constitute a single jurisdiction and the United States of America, each State thereof and the District of Columbia shall be deemed to constitute a single jurisdiction.

 

17.


1.1.77 “ Generally Accepted Accounting Principles ” or “ GAAP ” means the generally accepted accounting principles in effect in Canada from time to time, consistently applied, and including for greater certainty IFRS as and from its implementation in Canada effective January 1, 2011.

1.1.78 “ Governmental Authority ” means the government of Canada or any other nation, or of any political subdivision thereof, whether provincial, state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government, including any supra-national bodies such as the European Union, the Bank for International Settlements or the European Central Bank and including a Minister of the Crown, Superintendent of Financial Institutions or other comparable authority or agency.

1.1.79 “ Guarantees ” by any Person means all obligations (other than endorsements in the ordinary course of business of negotiable instruments for deposit or collection) of such Person guaranteeing, or in effect guaranteeing, any Indebtedness, dividend or other obligation of any other Person (the “ Primary Obligor ”) in any manner, whether directly or indirectly, including all obligations incurred through an agreement, contingent or otherwise, by such Person: (a) to purchase such Indebtedness or obligation or any property or assets constituting security therefor, (b) to advance or supply funds (i) for the purchase or payment of such Indebtedness or obligation, or (ii) to maintain working capital or other balance sheet condition or otherwise to advance or make available funds for the purchase or payment of such Indebtedness or obligation against loss, (c) to lease property or to purchase securities or other property or services primarily for the purpose of assuring the owner of such Indebtedness or obligation, or (d) otherwise to assure the owner of the Indebtedness or obligation of the Primary Obligor against loss in respect thereof. For the purposes of all computations made under this Agreement, a Guarantee in respect of any Indebtedness for borrowed money, and a Guarantee in respect of any other obligation or liability or any dividend, shall be deemed to be Indebtedness equal to the maximum aggregate amount of such obligation, liability or dividend, unless the Guarantee is limited in amount, in which case such limit shall be used for such computation.

1.1.80 “ Guarantors ” means subject to the provisions of Section 9.3, 9293-6707 Quebec Inc., 9227-2590 Quebec Inc., 9230-7677 Quebec Inc., 8487782 Canada Inc. (formerly known as Jobboom Inc.), Videotron G.P., Videotron L.P., Vidéotron Infrastructures Inc., 4Degrés Colocation Inc. / 4Degrees Colocation Inc. and all of the wholly-owned Subsidiaries of the Borrower and the Guarantors created or acquired after the Closing Date. A list of the Guarantors and of all of the members of the VL Group as of the Third Amendment Closing Date is provided in Schedule “L” hereto.

1.1.81 “ Hazardous Substances ” shall mean any (a) substance, waste, liquid, gaseous or solid matter, fuel, micro-organism, sound, vibration, ray, heat, odour,

 

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radiation, energy vector, plasma and organic or inorganic matter which may alter and diminish or deteriorate the quality of the environment, or which by reason of its qualities is a hazard to health or to the environment, or is or is deemed to be, alone or in any combination, hazardous, hazardous waste, hazardous material, toxic, a pollutant, a deleterious substance, a contaminant or a source of pollution or contamination under any applicable Environmental Laws; and (b) any other chemical, material or substance, exposure to which is prohibited, limited or regulated by any Governmental Authority.

1.1.82 “ Hedging Exposure ” means the aggregate amount that would be payable to all Persons by the Relevant Group on the date of determination pursuant to (a) Section 6(e)(i)(3) of each ISDA Master Agreement entered into using the 1992 ISDA Master Agreement and (b) Section 6(e)(i) of each ISDA Master Agreement entered into using the 2002 ISDA Master Agreement, between the Borrower and such Persons as if all Derivative Instruments under such ISDA Master Agreements were being terminated on that day; provided that, for the purpose of such determination, with respect to the Derivative Instruments between each Lender and the Borrower entered into using (w) the 1992 ISDA Master Agreement, each Lender will be deemed to be the Non-defaulting Party (as such term is defined in the ISDA Master Agreement) and will determine Market Quotation (as such term is defined in the ISDA Master Agreement) using its estimates at mid-market of the amounts that would be paid for Replacement Transactions (as such term is defined in the 1992 ISDA Master Agreement), and (x) the 2002 ISDA Master Agreement, each Lender will be deemed to be the Non-defaulting Party (as such term is defined in the ISDA Master Agreement) and will determine the Close-Out Amount (as such term is defined in the ISDA Master Agreement).

1.1.83 “ IFRS ” means the International Financial Reporting Standards (formerly known as the International Accounting Standards), as set and promoted by the International Accounting Standards Board (formerly known as the International Accounting Standards Committee) and implemented in Canada through the Accounting Recommendations in the Handbook of the Canadian Institute of Chartered Accountants .

1.1.84 “ Immaterial Subsidiary ” means any wholly-owned Subsidiary of the Borrower that holds less than 1.5% of (a) the Adjusted Consolidated EBITDA on a rolling four-quarter basis, and (b) the Adjusted Consolidated assets, of the VL Group, provided that the aggregate EBITDA, on a rolling four-quarter basis, and assets held by all of the Immaterial Subsidiaries cannot at any time exceed 3% of the (i) Adjusted Consolidated EBITDA on a rolling four-quarter basis, or (ii) Adjusted Consolidated assets of, in each case, the VL Group.

1.1.85 “ Indebtedness ” of any Person means (without duplication) all obligations of such Person which in accordance with GAAP should be classified upon a balance sheet of such Person as liabilities of such Person, and in any event includes all Debt of such Person.

 

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1.1.86 “ Indemnified Taxes ” means all Taxes other than Excluded Taxes.

1.1.87 “ Interest Coverage Ratio ” means, for any period, the ratio of EBITDA to Interest Expense for such period.

1.1.88 “ Interest Expense ” for any period means all interest and all amortization of debt discount and expense on any particular Indebtedness for which such calculations are being made in respect of the Relevant Group, excluding (a) fees and expenses relating to any Offering of Debt and premiums paid to retire Debt, (b) interest on the Back-to-Back Debt to the extent offset by an equal amount of dividends on the Back-to-Back Preferred Shares, (c) interest not paid in cash or other assets of the Relevant Group on the QMI Subordinated Debt, including the interest component of Capital Leases, and discounts and fees payable in respect of bankers’ acceptances or accounts receivable sold in connection with any asset securitization program approved by the Lenders.

In circumstances where the proceeds of disposition of a Former Contributor (as defined in the definition of “ EBITDA ”) or its property, or of an Operating Business, (as defined in the definition of “ EBITDA ”) have been used to permanently repay Debt during such period, for the purpose of calculating Interest Expense, the amounts so repaid shall be deducted from the Debt of the Relevant Group on which the calculation of Interest Expense for such period would otherwise have been made, and Interest Expense shall be reduced accordingly on a pro forma basis. Similarly, in circumstances where Debt of the Relevant Group was incurred or assumed in connection with the acquisition of a Person or Operating Business (as defined in the definition of “ EBITDA ”), the amounts so incurred or assumed shall be added to the Debt of the Relevant Group on which the calculation of Interest Expense for such period would otherwise have been made, and Interest Expense shall be increased accordingly on a pro forma basis.

1.1.89 “ Investments ” means all investments, in cash or by delivery of property, made directly or indirectly in any Person, whether by acquisition of shares of capital stock, Indebtedness or other obligations or securities or by loan, advance, capital contribution or otherwise; provided, however, that “Investments” shall not mean or include investments in cash or Cash Equivalents or routine investments in inventory, equipment and supplies to be used or consumed, or trade credit granted, in the ordinary course of business.

1.1.90 “ ISDA Master Agreement ” means either the ISDA Master Agreement (Multi-Currency - Cross Border - 1992) (the “ 1992 ISDA Master Agreement ”) or the ISDA 2002 Master Agreement (the “ 2002 ISDA Master Agreement ”), each as published by the International Swaps and Derivatives Association, Inc. and, where the context permits or requires, includes all schedules, supplements, annexes and confirmations attached thereto or incorporated therein, as such agreement may be amended, supplemented or replaced from time to time.

 

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1.1.91 “ Issuing Lender ” means each or all of (a) the Lender(s) selected by the Borrower and accepted by such Lender(s), for which the Agent has been advised that such Lender(s) will be the issuer of Letters of Credit (in that capacity) under the Revolving Facility or under the Unsecured Facility, as applicable, and (b) the Swing Line Lender as the issuer of Letters of Credit under the Swing Line Commitment (in that capacity), or any successor issuers of Letters of Credit. For greater certainty, where the context permits, references to “Lenders” herein include the Issuing Lender.

1.1.92 “ Joinder Agreement ” means an agreement substantially in the form of Schedule “O”.

1.1.93 “ LC Fees ” has the meaning ascribed to such term in subsection 4.2.2.

1.1.94 “ Lender ” or “ Lenders ” means the Revolving Facility Lenders, the Unsecured Facility Lenders, and the Lenders under the Finnvera Term Facility, all of which are listed in Schedule “A”, together with any Assignee(s) and Tranche A Assignee(s) (as such term is defined in Schedule “P”), or, as the context permits, any of them alone. When used in connection with “Derivative Instruments”, the term “Lender” shall include any Affiliate of a Revolving Facility Lender. When used in connection with the Security, the term “Lender” shall include any counterparty to a Derivative Instrument, provided that the counterparty was a Revolving Facility Lender or an Affiliate of a Revolving Facility Lender at the time any such Derivative Instrument was entered into.

1.1.95 “ Letter of Credit ” means any stand-by letter of credit or letter of guarantee issued by the Issuing Lender in accordance with the provisions hereof, and includes any stand-by letter of credit or letter of guarantee issued by the Issuing Lender in connection with the Spectrum Auction and Purchase in accordance with the provisions hereof.

1.1.96 “ Leverage Ratio ” means, as of any date of determination, the ratio of Debt (excluding the QMI Subordinated Debt) of the Relevant Group as of such date to EBITDA for the preceding four quarters ending on such date.

1.1.97 “ Licences ” means all licences, permits and authorizations issued to the VL Group by the CRTC pursuant to the Broadcasting Act (Canada) and the orders, rules, regulations and directions promulgated pursuant to such Act.

1.1.98 “ Loan Documents ” means this Agreement, the Security Documents, any Derivative Instruments entered into with one or more Revolving Facility Lenders or any of their respective Affiliates, and any undertaking or other agreement executed in connection with this Agreement.

1.1.99 “ Loan Obligations ” means all obligations of the VL Group to the Agents and Lenders under or in connection with the Loan Documents (provided that

 

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“Loan Obligations” shall not include “Derivative Obligations”), including the aggregate of Advances outstanding under this Agreement (and further including the face amount of any Bankers’ Acceptances and all reimbursement obligations under subsection 4.2.3 in respect of Letters of Credit issued in accordance with the provisions hereof), together with interest thereon (including, without limitation, interest accruing after the maturity of the Advances due under any Facility hereunder and interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to a member of the VL Group, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding) and all other debts and liabilities, present or future, direct or indirect, absolute or contingent, matured or not, at any time owing by the VL Group to the Agents and Lenders in any currency under or in connection with the Loan Documents, and all interest, Fees, fees, commissions, legal and other costs, charges and expenses incurred under or in connection with the Loan Documents. In this definition, “the Agents and Lenders” means “the Agents and Lenders, or any of them”.

1.1.100 “ Majority Lenders ” means Lenders holding at least 51% of the combined Commitments; if the Commitments under the Revolving Facility and the Unsecured Facility have expired, “Majority Lenders” shall mean Revolving Facility Lenders, Unsecured Facility Lenders and Finnvera Facility Lenders to whom are owed at least 51% of the Loan Obligations under the Revolving Facility, the Unsecured Facility and the Finnvera Term Facility.

1.1.101 “ Margin ” means [Redacted] .

1.1.102 “ Market Disruption Event ” has the meaning ascribed to it in Section 7.6.

1.1.103 “ Market Disruption Prime Rate ” means the average of the Prime Rates of the Market Disruption Reference Lenders, calculated as set out in the definition of “Prime Rate” as if each such Market Disruption Reference Lender was the bank referred to in such definition; provided that such Market Disruption Prime Rate shall not exceed the Prime Rate (as defined herein) at such time by more than 0.50%.

1.1.104 “ Market Disruption Reference Lenders ” means, for the purposes of Section 7.6, Royal Bank of Canada, The Toronto-Dominion Bank and Bank of America, N.A., Canada Branch.

1.1.105 “ Market Disruption US Base Rate ” means the average of the US Base Rates of the Market Disruption Reference Lenders, calculated as set out in the definition of “US Base Rate” as if each such Market Disruption Reference Lender was the bank referred to in such definition; provided that such Market Disruption US Base Rate shall not exceed the US Base Rate (as defined herein) at such time by more than 0.50%.

 

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1.1.106 “ Material Adverse Change ” means (i) a material adverse change in the business, assets, liabilities, financial position, operating results or business prospects of the VL Group, taken as a whole, or (ii) a material adverse change in the ability of the Borrower and the Guarantors to perform any of their material obligations hereunder or under the Security Documents, or (iii) the impairment, in any material respect, of the validity or enforceability of this Agreement or the Security Documents or of the rights and remedies of the Agents or the Lenders hereunder or under the Security Documents.

1.1.107 “ Net Proceeds ” means the gross amount of proceeds payable in cash or Cash Equivalents arising from any Asset Disposition, less (a) amounts payable to discharge or radiate Permitted Charges on the assets being disposed of, (b) the amount of Taxes arising from each such Asset Disposition and which cannot be offset against losses, depreciation or otherwise such that same must actually be paid in cash, and (c) reasonable out-of-pocket costs, fees and expenses incurred in connection with such Asset Disposition, including commissions but excluding any amounts paid to Affiliates.

1.1.108 “ New Facility ” means one or more credit facilities created from time to time as permitted under Section 2.4 and benefitting from the Security, such credit facility being similar in nature and purpose to the Finnvera Term Facility.

1.1.109 “ Notice of Borrowing ” means, (i) with respect to the Revolving Facility or the Unsecured Facility, a notice substantially in the form of Schedule “B” transmitted to the Agent by the Borrower in accordance with the provisions of Section 4.1, or of subsection 6.1.1, and (ii) with respect to the Finnvera Term Facility, a Tranche A Notice of Borrowing, as defined in Schedule “P”.

1.1.110 “ Offering ” means any public or private offering of Equity Interests or Debt permitted hereunder.

1.1.111 “ Original Closing Date ” means November 28, 2000.

1.1.112 “ Other Taxes ” means all present or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies arising from any payment made hereunder or under any other Loan Document or from the execution, delivery or enforcement of, or otherwise with respect to, this Agreement or any other Loan Document.

1.1.113 “ Péladeau Group ” means any (i) individual who is related by blood, adoption or marriage to the late Pierre Péladeau; (ii) any trust (whether testamentary or otherwise) the beneficiaries of which are all individuals described in (i); or (iii) any corporation or partnership which is controlled, directly or indirectly, by one or more individuals referred to in (i) or a trust referred to in (ii), or any combination thereof.

 

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1.1.114 “ Permitted Charges ” means the Charges created by the Security Documents and, with respect to any Person:

 

  1.1.114.1 any Charge created by law that is assumed in the ordinary course of business and in order to exercise same, which, in the case of construction Charges in favour of contractors, sub-contractors, workmen, suppliers of materials, engineers and architects, has not at such date been registered in accordance with Applicable Law against such Person, which relates to obligations which are not yet due or delinquent, which is not related to any loan of money or obtaining of credit and which, in the aggregate, do not affect in a material way the use, the income or the benefits flowing from the property so charged in the conduct of the business of such Person; any Charge resulting from judgments or decisions which such Person has, at such date, appealed or in respect of which it has sought revision and obtained a suspension of execution pending the appeal or the revision; any Charge for Taxes, assessments or governmental claims or other impositions not yet due or matured or in respect of which the validity at such date has been contested in good faith by such Person before a Governmental Authority in accordance with the provisions of Section 12.7; or which relates to a deposit of monies or securities in the ordinary course of business with respect to any Charge referred to in this paragraph, or to secure workmen’s compensation, surety or appeal bonds or security for costs of litigation; or any Charge in favour of a landlord on movable or personal property to secure the payment of rent and other amounts owing under leases for immovable or real property, provided the Charge is limited to property situated on the leased premises;

 

  1.1.114.2 any right of a municipality or other Governmental Authority pursuant to any lease, license, franchise, grant or permit obtained by such Person, or any right resulting from a legislative provision, to terminate such lease, license, franchise, grant or permit, or requiring an annual or periodic payment as a condition of its extension;

 

  1.1.114.3 Charges in favour of a municipality, public utility or other Governmental Authority, or which may be imposed by one or the other, when required by such body or authority with respect to the operations of such Person or in the ordinary course of its business;

 

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  1.1.114.4 Charges granted in favour of municipal authorities or public utilities on immovables acquired from time to time by such Person which do not adversely affect the value or marketability of such Person’s immovable property in any material respect;

 

  1.1.114.5 title defects, homologated lines, zoning and building by-laws, ordinances, regulations and other governmental restrictions on the use of property, or servitudes, easements or other similar encumbrances, provided that none of the foregoing adversely affect the value or marketability of such Person’s immovable property in any material respect;

 

  1.1.114.6 Charges (i) under any Capital Lease or Synthetic Lease, and (ii) to secure the payment of the purchase price incurred in connection with the acquisition of assets, in each case to be used in carrying on the Core Business, including Charges existing on such assets at the time of the acquisition thereof or at the time of the acquisition by a member of the VL Group of any business entity then owning such assets, whether or not such existing Charges were given to secure the payment of the purchase price of the assets to which they attach, provided that such Charges are limited to the assets purchased and that the amount guaranteed by such Charges does not exceed 100% of the acquisition price of the assets so acquired, and, in the aggregate for (i) and (ii) above, shall not exceed, at the time of incurrence, the greater of (a) 5% of Shareholders Equity and (b) $50,000,000, outstanding at any time;

 

  1.1.114.7 bankers’ liens, rights of set-off or similar rights to deposit accounts or the funds maintained with a credit or deposit-taking institution; and

 

  1.1.114.8 other Charges, not ranking in priority to the Security, incurred in the ordinary course of the Core Business, in an aggregate amount not at any time exceeding $50,000,000.

1.1.115 “ Person ” means a legal person, a natural person, a joint venture, a partnership, a trust, an entity without juridical personality, a Governmental Authority or any ministry, organization or intermediary of such Governmental Authority.

1.1.116 “ Prime Rate ” means, on any day, the reference rate of interest, expressed as an annual rate, publicly announced or posted from time to time by the Lender then acting as Agent (or, in the case of Swing Line Advances, the Swing Line Lender) as being its reference rate then in effect for determining interest rates

 

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on demand commercial loans granted in Canada in Canadian Dollars to its clients (whether or not any such loans are actually made); provided that in the event that the Prime Rate is, at any time, less than the average one month Bankers’ Acceptance rate quoted on Reuters Service, page CDOR, as at approximately 10:00 a.m. on such day plus 1% (the “ BA Rate ”), “Prime Rate” shall be equal to the BA Rate.

1.1.117 “ Prime Rate Advance ” means, at any time, the portion of the Advances in Canadian Dollars with respect to which the Borrower has chosen, or, in accordance with the provisions hereof, is obliged, to pay interest on the Prime Rate Basis.

1.1.118 “ Prime Rate Basis ” means the basis of calculation of interest on the Prime Rate Advances, or any part thereof, made in accordance with the provisions of Sections 5.1 and 5.2.

1.1.119 “ Proceeds of Crime Act ” means the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada) and the regulations promulgated thereunder.

1.1.120 “ QMI Subordinated Debt ” has the meaning ascribed to it in Section 13.7.

1.1.121 “ Relevant Group ” means:

(a) when used for the purposes of Article 12 (other than Section 12.11 and subsection 12.15.3(b)), Article 13 (other than Section 13.4) and Article 14, including to the extent used in any defined term used therein (or any defined term used within such definitions or any component thereof), the VL Group, and

(b) when used for the purposes of Section 12.11, subsection 12.15.3(b) or Section 13.4, including to the extent used in any defined term used therein (or any defined term used within such definitions or any component thereof),

i) the VL Group on an Adjusted Consolidated basis if, at the relevant time, (x) the Adjusted Consolidated (A) EBITDA on a rolling four-quarter basis, or (B) assets (excluding Back-to-Back Securities), or (C) Debt, in each case, of the VL Group, is less than 95% of, as applicable, (y) the EBITDA on a rolling four-quarter basis, or the assets (excluding Back-to-Back Securities), or the Debt, in each case of the Borrower on a consolidated basis, or

ii) otherwise, the Borrower on a consolidated basis.

Accordingly, assets, EBITDA, Debt, and Excess Cash Flow shall be calculated on an Adjusted Consolidated basis when such terms apply to the VL Group and on a consolidated basis when such terms apply to the Borrower.

 

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1.1.122 “ Required Lenders-Acceleration ” means Lenders holding at least 51% of the Loan Obligations.

1.1.123 “ Requisite Disruption Lenders ” means, at any time, Lenders representing at such time more than 35% of the total Commitments under the Revolving Facility and the Unsecured Facility at such time.

1.1.124 “ Revolving Facility ” means the Facility under which the portion of the Credit described in subsection 2.1.1 is available.

1.1.125 “ Revolving Facility Fees ” means the fees payable to the Agent and to the Revolving Facility Lenders, as set out in Section 5.7.

1.1.126 “ Revolving Facility Lender ” means a Lender having a Commitment under the Revolving Facility.

1.1.127 “ Rollover Date ” means, with respect to a BA Advance, the date of any such Advance, or the first day of any Designated Period.

1.1.128 “ Second Currency ” has the meaning ascribed to it pursuant to Section 15.1.

1.1.129 “ Secured Applicable Percentage ” means, with respect to (a) any Revolving Facility Lender, the percentage of the total Commitments under the Revolving Facility represented by such Lender’s Revolving Facility Commitment, or (b) any Finnvera Facility Lender, the percentage of the total Commitments under the Finnvera Term Facility represented by such Lender’s Commitment under the Finnvera Term Facility. If the Revolving Facility Commitments have been cancelled, terminated or expired, or if the calculation is required under the provisions of Section 18.8, the Secured Applicable Percentage of a Revolving Facility Lender or a Finnvera Facility Lender shall be calculated by dividing (a) (i) the portion of the Loan Obligations under the Revolving Facility owed to such Revolving Facility Lender plus the amount owed to such Revolving Facility Lender on account of Derivative Obligations, or (ii) the portion of the Loan Obligations under the Finnvera Term Facility owed to such Finnvera Facility Lender, by (b) the aggregate amount of the Secured Obligations, giving effect to any Assignments pursuant to the provisions of Article 16 or Section 10 of Schedule “P”. If there is a Defaulting Lender, the “Secured Applicable Percentage” shall be adjusted in accordance with the provisions of Section 18.17 without increasing the Commitment of any Lender.

1.1.130 “ Secured Obligations ” means, collectively, all of the Loan Obligations under the Revolving Facility and the Finnvera Term Facility, and all of the Derivative Obligations.

 

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1.1.131 “ Security Documents ” means all of the guarantees and security documents described in Article 9, and “ Security ” means the security created thereby.

1.1.132 “ Selected Amount ” means, with respect to a BA Advance, the amount of the Advances in Canadian Dollars which the Borrower has asked to obtain by the issuance of Bankers’ Acceptances in accordance with Section 6.1.

1.1.133 “ Senior Note Indentures ” means the indentures governing the Senior Notes issued by the Borrower.

1.1.134 “ Senior Notes ” means the 9 1/ 8 % Senior Notes due 2018, the 7 1/ 8 % Senior Notes due 2020, and the 6 7/ 8 % Senior Notes due 2021.

1.1.135 “ Shareholders Equity ” means, with respect to the VL Group at any time and calculated on an Adjusted Consolidated basis, the amount of paid-up capital in respect of all issued and fully-paid and non-assessable shares of share capital, together with the contributed surplus, retained earnings and translation adjustment (if applicable), all as otherwise calculated in accordance with GAAP.

1.1.136 “ Share Pledge ” has the meaning ascribed to it in subsection 9.1.2.

1.1.137 “ Solvency Certificate ” means a certificate attesting that a Person is Solvent, delivered in accordance with the provisions of Section 13.6.

1.1.138 “ Solvent ” means, with respect to any Person, as of any date of determination, that such Person is not an “insolvent person”, as defined in the Bankruptcy and Insolvency Act (Canada), a “debtor company”, as defined in the Companies’ Creditors Arrangement Act (Canada), and is not insolvent under any analogous defined term as used in any other Applicable Laws.

1.1.139 “ Spectrum Auction and Purchase ” means any process by Industry Canada, the CRTC or another Governmental Authority in connection with the auction of spectrum licences for advanced wireless services and other spectrum to be used in the Core Business.

1.1.140 “ Stamping Fees ” means, with respect to BA Advances, including BA Advances made by way of Discount Notes, the fee calculated by (a) multiplying the percentage referred to in the definition of “Margin” by the face amount of the Bankers’ Acceptances being issued and stamped in connection with the BA Advance being made, (b) dividing the product so obtained by 365 or, in a leap year, 366, and (c) multiplying the result so obtained by the number of days in the relevant Designated Period.

1.1.141 “ Standby Fee ” has the meaning ascribed to it in subsection 5.7.1.

 

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1.1.142 “ Subordinated Debt ” means, in respect of any Person, unsecured Debt of such Person that has no required redemption provisions and matures at least 6 months after the expiry of the Term hereof and that has been subordinated in right of payment to the obligations of the VL Group hereunder and under the Security Documents in form and substance acceptable to the Lenders and their counsel.

1.1.143 “ Subsidiary ” means any Person in respect of which the majority of the issued and outstanding capital stock (including securities convertible into voting shares and options to purchase voting shares) granting a right to vote in all circumstances is at the relevant time owned by the Borrower or one or more of its Subsidiaries, and includes any partnership and limited partnership that would be an Affiliate if it was a corporation.

1.1.144 “ Swing Line Advances ” means a Prime Rate Advance, a US Base Rate Advance or the issuance of a Letter of Credit (in the latter case, subject to prior notice as required by the Swing Line Lender in accordance with its normal practice) under the Revolving Facility by the Swing Line Lender to the Borrower in an aggregate principal amount outstanding at any time not exceeding the Swing Line Commitment. All Swing Line Advances are available only by way of Prime Rate Advances, US Base Rate Advances or the issuance of Letters of Credit, and may not be converted into any other form of borrowing.

1.1.145 “ Swing Line Commitment ” means $25,000,000.

1.1.146 “ Swing Line Lender ” means The Toronto-Dominion Bank and any successor thereof appointed pursuant to Section 4.3. For greater certainty, where the context permits, references to “Lenders” herein include the Swing Line Lender.

1.1.147 “ Swing Line Loan ” means, at any time, the aggregate of the Swing Line Advances outstanding at any time in accordance with the provisions hereof, together with any other amount in interest and accessory costs payable to the Swing Line Lender by the Borrower pursuant hereto.

1.1.148 “ Synthetic Lease ” means any synthetic lease or similar off-balance sheet financing product where such transaction is considered borrowed money for tax purposes but is classified as an operating lease in accordance with GAAP.

1.1.149 “ Tax Benefit Transaction ” means, for so long as the Borrower is a direct or indirect subsidiary of Quebecor Inc. (“ Quebecor ”), any transaction between a member of the VL Group and Quebecor or any of its Affiliates, the primary purpose of which is to create tax benefits for any member of the VL Group or for Quebecor or any of its Affiliates; provided, however, that (1) the member of the VL Group involved in the transaction obtains a favourable tax ruling from a competent tax authority or a favourable tax opinion from a nationally recognized Canadian law or accounting firm having a tax practice of national standing as to the tax efficiency of the transaction for such member of the VL Group; (2) the Borrower

 

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delivers to the Agent (a) a resolution of the board of directors of the Borrower to the effect the transaction will not prejudice the Lenders and certifying that such transaction has been approved by a majority of the disinterested members of such board of directors and (b) an opinion as to the fairness to such member of the VL Group of such transaction from a financial point of view issued by an accounting, appraisal or investment banking firm of national standing in the United States or Canada, except in respect of any Tax Benefit Transaction in an amount of less than $1,000,000 each, provided that the aggregate of all Tax Benefit Transactions for amounts of less than $1,000,000 does not exceed $10,000,000 in the aggregate in any 12 month period; (3) such transaction is set forth in writing; (4) such transaction either (a) causes all of the Security creating a Charge on any transferred assets to remain in full force and effect, or (b) provides for the replacement of such assets by different assets of a value, nature and kind acceptable to each of the Lenders, and which shall in any event be subject to the Security (and the assets so transferred that were previously Charged shall be released); and (5) the EBITDA is not reduced after giving pro forma effect to the transaction as if the same had occurred at the beginning of the most recently ended four fiscal quarter period of the Borrower for which internal financial statements are available; provided, however , that if such transaction shall thereafter cease to satisfy the preceding requirements as a Tax Benefit Transaction, it shall thereafter cease to be a Tax Benefit Transaction for purposes of this Agreement and shall be deemed to have been effected as of such date and, if the transaction is not otherwise permitted by this Agreement as of such date, the Borrower will be in Default hereunder if such transaction does not comply with the preceding requirements or is not otherwise unwound within 30 days of that date.

1.1.150 “ Tax Consolidation Transaction ” means a transaction in which (i) a member of the VL Group (the “ Initiator ”) borrows an amount by way of a daylight loan, (ii) the same amount is then used to lend to another member of the VL Group (“ Lossco ”) by way of an interest bearing loan (the “ Lossco Loan ”), (iii) Lossco subscribes to an equivalent amount of preferred shares of another VL Group member (“ Newco ”), (iv) Newco lends the same amount by way of an interest free loan to the Initiator (the “ Newco Loan ”), and (v) the Initiator reimburses the daylight loan. Subject to the last sentence of this paragraph, interest on the Lossco Loan would accrue on a daily basis and be payable periodically and at the maturity of the Lossco Loan along with the principal of such loan. Such interest payments and principal repayments would be funded from periodic preferred dividend payments, the redemption of preferred shares and a preferred dividend payment at the maturity of the Lossco Loan, in each case received from Newco. To fund Newco’s aforesaid dividend payments and share redemptions, the Initiator would make periodic cash contributions to Newco’s contributed surplus and, at maturity of the Lossco Loan, would make a cash contribution to Newco’s contributed surplus and reimburse the Newco Loan. For the purposes of the foregoing, the Initiator would borrow by way of daylight loans the required amounts to pay each contribution and to reimburse the Newco Loan and would reimburse each daylight

 

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loan using the proceeds of the interest and principal paid to it under the Lossco Loan. Any lender who is not the Borrower or a Guarantor shall execute a subordination agreement in favour of the Agent in substantially the form attached hereto as Schedule “N” if at all times during the Tax Consolidation Transaction such lender is an operating entity or has Debt other than Debt contemplated by the Tax Consolidation Transaction.

1.1.151 “ Taxes ” means all present or future taxes, levies, imposts, duties, deductions, withholdings, assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.

1.1.152 “ Term ” means, with respect to the Revolving Facility, the period commencing on the Closing Date and terminating on July 20, 2020, with respect to the Unsecured Facility, the period commencing on the Third Amendment Closing Date and terminating on the earlier of the Conversion Date-Total and July 20, 2020, and with respect to the Finnvera Term Facility, the period commencing on November 13, 2009 and terminating on the “Maturity Date” as defined in Schedule “P”.

1.1.153 “ Third Amendment Closing Date ” means June 16, 2015.

1.1.154 “ Threshold Amount ” means, at any time prior to the Conversion Date-Total, an amount equal to (a) the amount of the total Commitments under the Revolving Facility (as increased or cancelled pursuant to the terms of this Agreement, including pursuant to Sections 2.3, 2.4 and 8.2) at such time, less (b) the amount of the Swing Line Commitment at such time, less (c) the minimum Selected Amount of $5,000,000 set forth in subsection 6.1.1.

1.1.155 “ Tranche A Advance ” has the meaning ascribed to it in Schedule “P”.

1.1.156 “ Tranche A CDOR Advance” has the meaning ascribed to it in Schedule “P”.

1.1.157 “ Tranche A Designated Period ” has the meaning ascribed to it in Schedule “P”.

1.1.158 “ Unsecured Applicable Percentage ” means, with respect to any Unsecured Facility Lender, the percentage of the total Commitments under the Unsecured Facility represented by such Lender’s Commitment under the Unsecured Facility. If there is a Defaulting Lender, the “Unsecured Applicable Percentage” shall be adjusted in accordance with the provisions of Section 18.17 without increasing the Commitment of any Lender.

1.1.159 “ Unsecured Facility ” means the Facility under which the portion of the Credit described in subsection 2.1.2 is available.

 

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1.1.160 “ Unsecured Facility Fees ” means the fees payable to the Agent and to the Unsecured Facility Lenders, as set out in Section 5.7.

1.1.161 “ Unsecured Facility Lender ” means a Lender having a Commitment under the Unsecured Facility.

1.1.162 “ US Base Rate ” means, on any day, the greater of (a) the rate of interest, expressed as an annual rate, publicly announced or posted from time to time by the Swing Line Lender as being its reference rate then in effect for determining interest rates on demand commercial loans granted in Canada in US Dollars to its clients (whether or not such loans are actually made); and (b) the Federal Funds Effective Rate plus .50% per annum.

1.1.163 “ US Base Rate Advance ” means, at any time, the part of the Advances in US Dollars forming part of the Swing Line Loans with respect to which the Borrower has chosen, or, in accordance with the provisions thereof, is obliged, to pay interest on the US Base Rate Basis.

1.1.164 “ US Base Rate Basis ” means the basis of calculation of interest on the US Base Rate Advances, or any part thereof, made using the US Base Rate, plus the Margin applicable to Prime Rate Advances.

1.1.165 “ US Dollars ” or “ US $ ” means the lawful currency of the United States of America in same day immediately available funds or, if such funds are not available, the currency of the United States of America which is ordinarily used in the settlement of international banking operations on the day on which any payment or any calculation must be made pursuant to this Agreement.

1.1.166 “ VL Group ” means, collectively, the Borrower and all of its wholly-owned Subsidiaries, and a reference to a “member of the VL Group” means any of them; a list of the members of the VL Group as of the Third Amendment Closing Date is provided in Schedule “L” hereto.

 

  1.2 Interpretation

Unless stipulated to the contrary, the words used herein which indicate the singular include the plural and vice versa and the words indicating masculine include the feminine and vice versa. In addition, the word “ includes ” (or “ including ”) shall be interpreted to mean “includes (or including) without limitation”. Finally, any reference to a time shall mean local time in the City of Montreal, Province of Quebec.

 

  1.3 Currency

Unless the contrary is indicated, all amounts referred to herein are expressed in Canadian Dollars.

 

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  1.4 Generally Accepted Accounting Principles

Unless the Lenders and the Borrower shall otherwise expressly agree or unless otherwise expressly provided herein (for example, in connection with the definition of “Adjusted Consolidated”), all of the terms of this Agreement which are defined under the rules constituting Generally Accepted Accounting Principles shall be interpreted, and all financial statements and reports to be prepared hereunder shall be prepared, in accordance with Generally Accepted Accounting Principles in effect from time to time.

If at any time any change in GAAP would affect any requirement set forth in any Loan Document, and either the Borrower or the Majority Lenders shall so request, the Agent, the Lenders and the Borrower shall negotiate in good faith to amend such requirement with the intent of having the respective positions of the Borrower and the Lenders after the coming into force of such change in GAAP conform as nearly as possible to their respective positions under the Credit Agreement immediately prior to January 1, 2011; provided that (A) until so amended, (i) such requirement shall continue to be computed in accordance with GAAP prior to such change therein and (ii) the Borrower shall provide to the Agent and the Lenders a reconciliation between calculations of such requirement made before and after giving effect to such change in GAAP, and (B) no fees (other than reasonable legal fees incurred by the Lenders to amend any such Loan Document to evidence any such amendment), premiums, increases in pricing or other costs shall be charged to, or borne by, the Borrower in connection with any such amendment. For greater certainty, it is hereby understood and agreed that any reconciliation between calculations of such requirement before and after giving effect to such change in GAAP made by or on behalf of the Borrower for purposes of determining compliance with any such requirement set forth in any Loan Document shall be unaudited. However, if it so requires, the Agent shall be entitled to obtain, at the expense of the Borrower, a confirmation in form and substance acceptable to the Agent, acting reasonably, from the Borrower’s auditors or another expert confirming the substance of the reconciliation so provided.

 

  1.5 Division and Titles

The division of this Agreement into Articles, Sections and subsections and the insertion of titles are for convenience of reference only and shall not affect the meaning or interpretation of this Agreement.

 

2. THE CREDIT

 

  2.1 Credit Facilities

Subject to the provisions hereof, and in particular, to the provisions of Article 3, each Lender agrees to make available to the Borrower, individually and not jointly and severally or solidarily, its Commitment in the Credit, which Credit consists of:

 

  2.1.1 the Revolving Facility, in a maximum amount equal to $615,000,000 (subject to increases in accordance with Sections 2.3 and 2.4), including the Swing Line Commitment which forms part of the Revolving Facility;

 

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  2.1.2 the Unsecured Facility, in a maximum amount equal to $350,000,000; and

 

  2.1.3 the Finnvera Term Facility, in a maximum amount as at the Third Amendment Closing Date equal to $32,142,857.16.

Irrespective of whether or not any Swing Line Advances have been made or remain outstanding, the amount available under the Revolving Facility (other than for the purposes of the calculation under subsection 5.7.1) shall be deemed to be reduced by an amount equal to the Swing Line Commitment.

 

  2.2 The Revolving Facility and the Unsecured Facility

All Advances under the Revolving Facility (other than US Base Rate Advances under the Swing Line, which may be in US$) shall be in Canadian Dollars alone and may be repaid and re-borrowed by the Borrower at all times during the Term. All Advances under the Unsecured Facility shall be in Canadian Dollars alone and, subject to the provisions of Sections 4.1, 4.2, 4.10, 6.1, and 6.13, may be repaid and re-borrowed by the Borrower at all times during the Term.

 

  2.3 The Unsecured Facility Generally, and Transfers of Credit and Commitments in Certain Circumstances

2.3.1 Intention of the Parties . The Unsecured Facility is intended to be used to supplement the Credit available under the Revolving Facility, which is limited due to the restrictions described in the first sentence of subsection 2.3.2. Accordingly, as noted in Sections 4.1, 4.2, 4.10, 6.1, and 6.13, the Revolving Facility is intended to be drawn up to the Threshold Amount at all times prior to any utilization of the Unsecured Facility, provided, however, that notwithstanding said intention and the aforementioned Sections, the Lenders and the Agents hereby acknowledge and agree that if at any time prior to the occurrence of a Default that is continuing or an Event of Default that has not been waived, the aggregate principal amount of the Advances outstanding under the Revolving Facility is less than the Threshold Amount, the Borrower shall not be required to repay, cash collateralize or cancel, as the case may be, any Bankers Acceptances or Letters of Credit outstanding under the Unsecured Facility prior to their respective maturity or expiry dates.

2.3.2 Total Conversion of Credit Under Unsecured Facility . The Borrower has advised that the amount of Debt of the VL Group that can be subject to Charges (subject to permitted liens) is limited by the provisions of the Senior Note Indentures. Within fifteen (15) days following the date on which the Senior Notes have been repaid in full and the Senior Note Indentures cancelled, the Borrower shall provide 3 Business Days’ prior notice to the Agent for the Lenders in the form set out in Schedule “B-2” (a “ Conversion Notice-

 

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Total ”) pursuant to which the entire amount of the Credit under the Unsecured Facility shall be added to the amount of the Credit under the Revolving Facility on the third Business Day following such notice (such date being the “ Conversion Date-Total ”), and the Commitments of the Unsecured Facility Lenders shall be transferred into the Revolving Facility and shall be converted into Commitments under the Revolving Facility, such that the Unsecured Facility Lenders will become Revolving Facility Lenders, and all of the Loan Obligations under the Unsecured Facility shall become Loan Obligations under the Revolving Facility. If the Borrower fails to provide such Conversion Notice-Total within the aforesaid fifteen (15) day period, the Borrower will be deemed to have provided such Conversion Notice-Total on the Business Day immediately following the expiry of the fifteen (15) day period, and the Conversion Date-Total shall occur 3 Business Days from the date on which such Conversion Notice-Total was deemed to have been sent.

2.3.3 Partial Conversion of Credit Under Unsecured Facility . In addition, if the Borrower is permitted to do so under the Senior Note Indentures prior to repayment and cancellation thereof (which fact shall be certified by the Borrower to the Agent with any requested explanations provided), the Borrower may voluntarily convert a portion of the Commitments under the Unsecured Facility to Commitments under the Revolving Facility upon 3 Business Days’ prior written notice to the Agent in the form set out in Schedule “B-2” (a “ Conversion Notice-Partial ”), and the amount of such portion of the Credit under the Unsecured Facility shall be added to the amount of the Credit under the Revolving Facility on the third Business Day following such notice (such date being the “ Conversion Date-Partial ”).

 

  2.4 Incremental Commitments and Facilities

The Borrower may, on up to three occasions (with a minimum of $25,000,000 of New Commitments each time, but without any minimum for a New Facility) during the Term of the Revolving Facility, by written notice to the Agent, elect to request an increase to the existing Commitments under the Revolving Facility (any such increase, the “ New Commitments ”) or elect to create a New Facility, in accordance with the provisions of this Section.

2.4.1 The aggregate amount of any such New Commitments and available commitments under any New Facility shall not exceed an amount equal to $75,000,000 minus (a) the aggregate undrawn Tranche A Credit, (b) the principal amount under the Term Loan (as each such term in clause (a) above and in this clause (b) is defined in Schedule “P”), (c) the amount of any previous New Commitments and New Facility (in each case, drawn and undrawn) that remain in effect, and (d) without duplication, the amount specified in any Conversion Notice-Partial sent by the Borrower prior to the date on which any New Commitment is requested (provided that from and after the Conversion Date-Total, any deduction from the aggregate $75,000,000 limit made under this paragraph (d) alone shall be reinstated and as such shall no longer reduce such limit). The notice shall specify the date (the “ Increased Amount Date ”) on which the Borrower proposes that the New Commitments or New Facility shall be effective, which shall be a date not less than 15 Business Days after the date on which such notice is delivered to the Agent. The notice in

 

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respect of New Commitments shall provide that the Borrower is first offering the opportunity to provide each New Commitment to the then-existing Revolving Facility Lenders, who may accept same on a pro rata basis or as they may otherwise agree. Any Revolving Facility Lender approached to provide all or a portion of the New Commitments may elect or decline, in its sole discretion, to provide a New Commitment.

2.4.2 The existing Revolving Facility Lenders shall advise the Agent within 10 Business Days following receipt of the Borrowers’ request for New Commitments as to the extent, if any, to which they wish to provide the New Commitments, and the Agent shall so advise the Borrower. The Borrower shall then identify each Person that is an Eligible Assignee (each, a “ New Lender ”) to whom the Borrower proposes any portion of such New Commitments not accepted by an existing Revolving Facility Lender be allocated and the amounts of such allocations, within 2 Business Days from receipt of the Agent’s notice referred to in the preceding sentence.

2.4.3 The New Commitments and any New Facility shall become effective as of the Increased Amount Date, provided that (a) no Default or Event of Default shall exist on the Increased Amount Date before or after giving effect to such New Commitments or New Facility; (b) the Borrower shall be in pro forma compliance with each of the covenants set forth in Section 12.11 as of the last day of the most recently ended fiscal quarter after giving effect to such New Commitments or New Facility; (c) the New Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower, the Guarantors, the New Lenders and the Agent, each of which shall be recorded in the Register (as defined in Section 16.3), and each New Lender shall be subject to the requirements set forth in Section 7.3; (d) the New Facility shall be effected pursuant to one or more amendments referred to in subsection 2.4.7; (e) the Borrower shall make any payments required pursuant to Section 7.4 in connection with the New Commitments; and (f) the Borrower shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by the Agent in connection with any such transaction.

2.4.4 On or before the Increased Amount Date (with effect as of the Increased Amount Date), subject to the satisfaction of the foregoing terms and conditions, (a) with respect to all New Commitments, each of the Revolving Facility Lenders shall assign to each of the New Lenders, who shall purchase same, at the principal amount thereof (together with accrued interest), such interests in the Loan Obligations under the Revolving Facility outstanding on the Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Loan Obligations under the relevant Facility will be held by existing Revolving Facility Lenders and New Lenders ratably in accordance with their Commitments after giving effect to the addition of such New Commitments to the Commitments, (b) each New Commitment and commitment under a New Facility shall be deemed for all purposes a Commitment and each Advance made thereunder (a “ New Advance ”) shall be deemed, for all purposes, a Loan Obligation under the Facilities, (c) each New Lender shall become a Lender with respect to the New Commitment and all matters relating thereto, and (d) each Lender under a New Facility shall become a Lender with respect to the New Facility and all matters relating thereto.

 

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2.4.5 The Agent shall notify the Lenders, promptly upon receipt, of the Borrower’s notice of the Increased Amount Date, the New Commitments and New Lenders in respect thereof, and any New Facility, as well as the effect of same as contemplated by the preceding paragraph.

2.4.6 The terms and provisions of the New Commitments under the Revolving Facility and New Advances thereunder shall be identical to the terms and provisions of the Loan Obligations, except in respect of any upfront fees or other similar fees to be paid in respect of New Commitments under the Revolving Facility. The terms and provisions of the New Commitments and New Advances not intended to simply be increases in the amount of the Revolving Facility shall be identical to the terms and provisions of the Loan Obligations, except as they relate to pricing, term, and amortization and repayment. For greater certainty, in respect of any increase contemplated in the first two sentences above, no additional Fees shall be payable in respect of any then-existing Commitments. Each Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Agent, to give effect to the provisions of this Section 2.4.

2.4.7 With respect to any New Facility and notwithstanding any other provision of this Agreement to the contrary, only the Borrower, the applicable lenders and agents under such New Facility and the Agent shall enter into an amendment to this Agreement to reflect all changes necessary or appropriate, in the opinion of the Agent, as a result of such New Facility, without the need to obtain the signatures of each of the existing Lenders to such amendment.

 

  2.5 Finnvera Term Facility

All Advances under the Finnvera Term Facility shall be in the currencies and shall be made and repaid in the manner described in Schedule “P”.

 

3. PURPOSE

 

  3.1 Purpose of the Advances

All Advances made by the Revolving Facility Lenders to the Borrower under the Revolving Facility in accordance with the provisions hereof from and after the Closing Date, and all Advances made by the Unsecured Facility Lenders to the Borrower under the Unsecured Facility in accordance with the provisions hereof from and after the Third Amendment Closing Date, shall be used by the Borrower for general corporate purposes, including, without limitation, to issue Letters of Credit and to pay dividends to QMI from time to time, subject to and in accordance with the terms and conditions of this Agreement. All Advances made under the Finnvera Term Facility shall be for the purposes described in Section 2 of Schedule “P”.

 

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4. ADVANCES, CONVERSIONS AND OPERATION OF ACCOUNTS

None of the provisions of Article 4 shall apply to the Finnvera Facility Lenders or the Finnvera Term Facility, in respect of which the relevant provisions are set out in Section 3 of Schedule “P”.

 

  4.1 Notice of Borrowing - Direct Advances

Subject to the applicable provisions of this Agreement, including Section 4.10, on any Business Day during the Disbursement Period, the Borrower shall be entitled to request Advances under the Revolving Facility, and/or, if the aggregate principal amount of the Advances outstanding under the Revolving Facility will not be less than the Threshold Amount (on the date said requested Advances under the Unsecured Facility are made), under the Unsecured Facility, on one or more occasions, up to the maximum amount of the Credit under the Revolving Facility and/or under the Unsecured Facility, as applicable, by way of Prime Rate Advances in minimum amounts of $1,000,000 and whole multiples thereof, provided that at least one (1) Business Day prior to the day on which any Prime Rate Advance is required (other than a Swing Line Advance, which shall be made in accordance with the provisions of Section 4.3), the Borrower shall have provided to the Agent an irrevocable telephone notice at or before 10:00 A.M. on any Business Day, followed by the immediate delivery of a written Notice of Borrowing. Notices of Borrowing in respect of BA Advances shall be given in accordance with the provisions of Section 6.1.

 

  4.2 Letters of Credit

4.2.1 Issuance . Subject to the applicable provisions of this Agreement, including Section 4.10, on any Business Day during the Disbursement Period, as part of the Credit available under the Revolving Facility, and/or, if the aggregate principal amount of the Advances outstanding under the Revolving Facility will not be less than the Threshold Amount (on the date said requested Advances under the Unsecured Facility are made), as part of the Credit available under the Unsecured Facility, upon three (3) Business Days’ prior written Notice of Borrowing to the Agent, the Borrower may cause to be issued by the Issuing Lender on behalf of the Lenders under the relevant Facility one or more Letters of Credit in a maximum aggregate amount outstanding at any time not exceeding the available Credit under the Revolving Facility (minus the Swing Line Commitment) and the Unsecured Facility to support a bid in the Spectrum Auction and Purchase, provided that the Security will extend to the property of the entity that will own the auctioned spectrum if it is a member of the VL Group (subject to the provisions of Section 9.3) and to its Equity Interests if held by a member of the VL Group (subject to the provisions of Section 9.3 and if not so held, the provisions of Section 13.10 shall apply), unless, with respect to such Equity Interests, such owner is the Borrower. Letters of Credit issued for other purposes hereunder shall not exceed a maximum amount outstanding at any time of $50,000,000. Each Letter of Credit shall be issued in Canadian Dollars (although Letters of Credit issued under the Swing Line may also be in US Dollars). Concurrently with the delivery of a Notice of Borrowing requesting a Letter of Credit under the Revolving Facility or the Unsecured Facility, as the case may be, the Borrower shall execute and deliver to the

 

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Issuing Lender the documents required by the Issuing Lender in respect of the requested type of Letter of Credit, including a Letter of Credit application and indemnity on the Issuing Lender’s standard forms. In the event of any conflict between the provisions of this Agreement and the provisions of any document relating to a Letter of Credit, the provisions of this Agreement shall govern and prevail. The term of each Letter of Credit shall expire prior to the end of the Term and shall not be more than 364 days and shall otherwise be in form and substance satisfactory to the Issuing Lender. If the Borrower wishes to cause the issuance of a Letter of Credit that has a maturity date expiring after the expiry of the Term, the Borrower undertakes to provide the Agent with LC Escrowed Funds (as defined in Section 4.2.5) no later than one (1) Business Day prior to the expiry of the Term.

4.2.2 Fee . The Borrower shall pay fees in respect of any such Letters of Credit (“ LC Fees ”) issued or renewed equal to the aggregate of: (i) for the Lenders under the relevant Facility under which the Letter of Credit was issued, an amount equal to (A) the face amount of the Letter of Credit on the date that the fee is payable multiplied by (B) a fraction (1) the numerator of which shall equal the product resulting from multiplying the applicable LC Fee percentage provided for in the table contained in the definition of “Margin” by the number of days in the term of the Letter of Credit selected by the Borrower, and (2) the denominator of which shall consist of 365 days or 366 days (as the case may be), which fees shall be payable quarterly in arrears on the last Business Day of each calendar quarter and (ii) for the Issuing Lender (other than the Swing Line Lender), the percentage per annum agreed upon by the Issuing Lender and the Borrower of the face amount thereof and for the number of days in the term of the Letter of Credit selected by the Borrower, payable quarterly in arrears on the last Business Day of each calendar quarter, or on such other date as the Agent may determine from time to time.

4.2.3 Reimbursement Obligations . In the event of any drawing under a Letter of Credit, the Issuing Lender shall promptly notify the Borrower who shall immediately reimburse the amount to the Issuing Lender in same day funds. In the event that the Borrower fails to reimburse the Issuing Lender immediately upon a drawing and fails to provide a Notice of Borrowing with a different option, the Borrower shall be deemed to have requested from the Agent a Prime Rate Advance under the relevant Facility under which the Letter of Credit was issued on the date and in the amount of the drawing, the proceeds of which will be used to satisfy the reimbursement obligations of the Borrower to the Lenders under such Facility in respect of the drawing. The reimbursement obligations of the Borrower hereunder shall be absolute, unconditional and irrevocable and shall be performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever and irrespective of:

 

  4.2.3.1 any lack of validity or enforceability of any Letter of Credit or this Agreement or any term or provision therein or herein;

 

  4.2.3.2 the existence of any claim, set-off, compensation, defence or other right that the Borrower, any member of the VL Group or any other Person may at any time have against the beneficiary under any Letter of Credit, the Issuing Lender, the Agents, any Lender or any other Person, whether in connection with this Agreement or any other related or unrelated agreement or transaction;

 

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  4.2.3.3 any draft or other document presented under a Letter of Credit proving to be forged, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any respect;

 

  4.2.3.4 any dispute between or among the members of the VL Group and any beneficiary of any Letter of Credit or any other party to which such Letter of Credit may be transferred or any claims whatsoever of the members of the VL Group against any beneficiary of such Letter of Credit or any such transferee; and

 

  4.2.3.5 the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or any of the rights or benefits thereunder or proceeds thereof in whole or in part, which may prove to be invalid or ineffective for any reason.

The Issuing Lender shall not be liable for any error, omission, interruption or delay in transmission, dispatch or delivery of any message or advice, however transmitted, in connection with any Letter of Credit, except for errors or omissions that result directly from the intentional or gross fault of the Issuing Lender, as determined by a final judgment of a court of competent jurisdiction.

In furtherance and extension and not in limitation of the specific provisions of this Section 4.2, (A) any action taken or omitted by the Issuing Lender or any of its respective correspondents under or in connection with any of the Letters of Credit, if taken or omitted in good faith and without gross or intentional fault, as determined by a final judgment of a court of competent jurisdiction, shall be binding upon the Borrower and shall not put the Issuing Lender or its respective correspondents under any resulting liability to the Borrower and (B) the Issuing Lender may, without gross or intentional fault as determined by a final judgment of a court of competent jurisdiction, accept documents that appear on their face to be in substantial compliance with the terms of a Letter of Credit, without responsibility for further investigation, regardless of any notice or information to the contrary (other than an injunction granted by a court of competent jurisdiction during the period for which such injunction is enforced), and may make payment upon presentation of documents that appear on their face to be in substantial compliance with the terms of such Letter of Credit, provided that the Issuing Lender shall have the right, in its sole discretion, to decline to accept such documents and to make such payment if such documents are not in strict compliance with the terms of such Letter of Credit.

 

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  4.2.4 Indemnification.

 

  4.2.4.1 The Borrower agrees to indemnify and hold harmless the Issuing Lender and each of its officers, directors, affiliates, employees, advisors and agents (the “ Indemnitees ”) from and against any and all losses, claims, damages and liabilities which the Indemnitees may incur (or which may be claimed against any Indemnitee) by any Person by reason of or in connection with the issuance or transfer of or payment or failure to pay under any Letter of Credit, provided that the foregoing indemnity will not, as to an Indemnitee, apply to losses, claims, damages, liabilities or related expenses to the extent they are found by a final, non-appealable judgment of a court to arise from the gross or intentional fault of such Indemnitee.

 

  4.2.4.2 The Borrower agrees, as between the Borrower and the Issuing Lender, that the Borrower shall assume all risks of the acts, omissions or misuse by the beneficiary of any Letter of Credit.

 

  4.2.4.3 Neither the Issuing Lender nor the Agent or any other Lender shall, in any way, be liable for any failure by the Issuing Lender or anyone else to pay any drawing under any Letter of Credit as a result of any action by any governmental authority or any other cause beyond the control of the Issuing Lender.

 

  4.2.4.4 The obligations of the Borrower under this Section 4.2 shall survive the termination of this Agreement. No acts or omissions of any current or prior beneficiary of a Letter of Credit shall in any way affect or impair the rights of the Issuing Lender to enforce any right, power or benefit under this Agreement.

4.2.5 LC Escrowed Funds . Upon the occurrence of an Event of Default, the Borrower will forthwith , upon request from the Issuing Lender under either the Revolving Facility or the Unsecured Facility or the Agent, pay to the Agent for deposit into an escrow account maintained by and in the name of the Agent, an amount equal to the Issuing Lender’s maximum potential exposure under the then outstanding Letters of Credit (the “ LC Escrowed Funds ”). The LC Escrowed Funds will be held by the Agent for compensation or set-off against future Indebtedness owing by the Borrower to the Issuing Lender in respect of such Letters of Credit and pending such application will bear interest at the rate declared by the Agent from time to time as that payable by it in respect of deposits for such amount and for the period from the date of deposit to the maturity date of the Letters of Credit. If such Event of Default is waived in compliance with the terms of this Agreement, then the remaining LC Escrowed Funds, if any, together with any accrued interest to the date of release, will be released to the Borrower. The deposit of the LC Escrowed Funds by the Borrower with the Agent as herein provided will not operate as a repayment on account of the Loan Obligations until such time as the LC Escrowed Funds are actually paid to the Issuing Lender as a repayment of principal hereunder. The Borrower shall sign and remit as Security with regard thereto all appropriate documents that the Agent or the Issuing Lender might judge necessary or desirable.

 

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4.2.6 Resignation . The Issuing Lender may resign as such (a “ Resigning Issuing Lender ”) upon 15 days’ prior written notice to the Agent and the Borrower, in which event the Borrower shall designate another Lender under the relevant Facility as Issuing Lender. Upon acceptance by such other Lender of the appointment as Issuing Lender (the “ Successor Issuing Lender ”), the Successor Issuing Lender shall succeed to the rights, powers and duties of the Resigning Issuing Lender and shall have all the rights and obligations of the Resigning Issuing Lender under this Agreement and the other Loan Documents. Upon request by any of the Resigning Issuing Lender, the Successor Issuing Lender, the Agent or the Borrower, each of the Resigning Issuing Lender, the Agent, the Borrower and the Successor Issuing Lender shall enter into an agreement evidencing the appointment of the Successor Issuing Lender and dealing with such other matters as the parties may agree including any reallocation of fees paid in relation to outstanding Letters of Credit which may be necessary. Following the resignation of the Resigning Issuing Lender, the Resigning Issuing Lender shall continue to have all the rights and obligations of an Issuing Lender under this Agreement and the other Loan Documents with respect to Letters of Credit issued by it prior to such resignation, but the Resigning Issuing Lender shall not be required to issue additional Letters of Credit. For avoidance of doubt, the provisions of this Agreement relating to the Issuing Lender shall inure to the benefit of the Resigning Issuing Lender as to any actions taken or omitted to be taken by it (a) while it was the Issuing Lender under this Agreement or (b) at any time with respect to Letters of Credit issued by the Issuing Lender.

 

  4.3 Swing Line Advances

4.3.1 Subject to the terms and conditions of this Agreement, the Swing Line Lender agrees to make Swing Line Advances to the Borrower on any Business Day from time to time prior to the expiry of the Term. Swing Line Advances (other than by Letters of Credit) may be made or drawn by way of overdrafts on the Borrower’s account with the Swing Line Lender or by way of irrevocable same Business Day telephone notice at or before 11:00 a.m. followed by the delivery on the same day of a written notice of confirmation. Swing Line Advances by Letter of Credit shall be subject to the prior notice as required by the Swing Line Lender in accordance with its normal practices and shall not exceed $1,000,000 in the aggregate outstanding at any time.

4.3.2 The proceeds of Swing Line Advances may be used by the Borrower for any purpose for which other Advances under the Revolving Facility may be used.

4.3.3 The Swing Line Loan shall be immediately repaid by the Borrower if at any time (and to the extent) it exceeds the maximum of the Swing Line Advances permitted hereunder, either by the Borrower submitting a Notice of Borrowing to request a new Advance or by the Agent advising the Lenders of a deemed Notice of Borrowing for the same purpose, which Notice of Borrowing the Agent is hereby expressly authorized (but in no way obliged unless requested to do so by the Swing Line Lender) to issue.

 

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4.3.4 If the Swing Line Lender no longer wishes to act as such, it shall notify the Borrower, the other Revolving Facility Lenders and the Agent not less than 15 days prior to the date on which it proposes to cease acting as a Swing Line Lender. In such event, the Borrower may designate a different Swing Line Lender by sending a notice to (a) the Swing Line Lender who will no longer act as such (the “ Retiring Swing Line Lender ”), (b) the new Swing Line Lender who has agreed to act as such and (c) the Agent, not less than five (5) days prior to the date on which the replacement is to occur. The new Swing Line Lender shall make a Prime Rate Advance or US Base Rate Advance, as applicable, available to the Agent for the purpose of repaying the Swing Line Loan owed to the Retiring Swing Line Lender on the date such replacement is to occur.

4.3.5 If an Event of Default shall have occurred, other than an Event of Default under subsection 14.1.4, or if no Revolving Facility Lender wishes to act as a replacement for the Retiring Swing Line Lender (in such case, the Swing Line Lender is herein referred to as the “ Former Swing Line Lender ”), the Borrower shall be deemed to have made a request for, and each Revolving Facility Lender shall make, a Prime Rate Advance or US Base Rate Advance, as applicable, available to the Agent for the purpose of repaying the principal amount of the Swing Line Loan owed to the Former Swing Line Lender, in the amount of such Revolving Facility Lender’s Secured Applicable Percentage multiplied by the amount of the outstanding Swing Line Loan owing to the Former Swing Line Lender (the “ Lender Swing Line Repayments ”). In such event, the Borrower’s right to obtain Swing Line Advances will cease, the amount of the Swing Line Commitment shall be nil, and the amounts outstanding thereunder will continue to form part of the Secured Obligations. However, if an Event of Default under subsection 14.1.4 shall have occurred, the Revolving Facility Lenders shall not make such Lender Swing Line Repayments and the provisions of subsection 4.3.6 shall apply.

4.3.6 If, before the making of a Lender Swing Line Repayment under subsection 4.3.5, a Default under subsection 14.1.4 shall have occurred and be continuing or an Event of Default under subsection 14.1.4 shall have occurred, each Revolving Facility Lender will, on the date such Lender Swing Line Repayment was to have been made, purchase from the Former Swing Line Lender an undivided participating interest in the Swing Line Loans to be repaid, in an amount equal to its Secured Applicable Percentage multiplied by the amount of the outstanding Swing Line Loans, and immediately transfer such amount to the Agent for the benefit of the Former Swing Line Lender, in immediately available funds. In such event, the Borrower’s right to obtain Swing Line Advances will cease and the amounts outstanding thereunder will continue to form part of the Secured Obligations. If at any time after any Lender Swing Line Repayment has been made, the Former Swing Line Lender receives any payment on account of the Swing Line Loans in respect of which such Lender Swing Line Repayment has been made, the Former Swing Line Lender will distribute to the Agent for the benefit of each Revolving Facility Lender an amount equal to such Revolving Facility Lender’s Secured Applicable Percentage multiplied by such amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Revolving Facility Lender’s portion was outstanding and funded) in like funds as received; provided, however, that if such payment received by the Former Swing Line Lender is

 

43.


required to be returned, such Revolving Facility Lender will return to the Agent for the benefit of the Former Swing Line Lender any portion thereof previously distributed by the Former Swing Line Lender to the Agent for the benefit of such Revolving Facility Lender in like funds as such payment is required to be returned by such Former Swing Line Lender.

4.3.7 Each Revolving Facility Lender’s obligation to make Lender Swing Line Repayments or to purchase a participating interest in accordance with subsections 4.3.5 and 4.3.6 shall be absolute and unconditional and shall not be affected by any circumstance, including, without limitation, (1) any set-off, compensation, counterclaim, recoupment, defense or other right which such Revolving Facility Lender may have against the Swing Line Lender, the Borrower or any other Person for any reason whatsoever; (2) the occurrence or continuance of any Default or Event of Default; (3) any adverse change in the condition (financial or otherwise) of the Borrower or any other Person; (4) any breach of this Agreement by the Borrower or any other Person; (5) any inability of the Borrower to satisfy the conditions precedent to borrowing set forth in this Agreement on the date upon which such Prime Rate Advance is to be made or participating interest is to be purchased or (6) any other circumstances, happening or event whatsoever, whether or not similar to any of the foregoing. If any Revolving Facility Lender does not make available the amount required under subsection 4.3.5 or 4.3.6, as the case may be, the Former Swing Line Lender shall be entitled to recover such amount on demand from such Revolving Facility Lender, together with interest thereon at the Prime Rate Basis or the US Base Rate Basis, as the case may be, from the date of non-payment until such amount is paid in full.

 

  4.4 Operation of Accounts

The Agent shall maintain in its books at the Agency Branch a record of the Loan Obligations, including the Bankers’ Acceptances issued by the Borrower, attesting as to the total of the Borrower’s indebtedness to the Lenders in accordance with the provisions hereof and with the provisions of the Security Documents. These accounts or registers shall constitute, in the absence of manifest error, prima facie proof of the total amount of the indebtedness of the Borrower to the Lenders in accordance with the provisions hereof and of the Security Documents, of the date of any Advance made to the Borrower and of the total of all amounts paid by the Borrower from time to time with respect to principal and interest owing on the Loan Obligations and the fees and other sums payable in accordance with the provisions hereof or of the Security Documents.

 

  4.5 Apportionment of Advances

The amount of each Advance will be apportioned among the relevant Lenders by the Agent by reference to the relevant Applicable Percentage of each such Lender, as such Applicable Percentage shall be immediately prior to the making of any Advance, subject to the provisions of subsections 4.3.5 and 4.3.6 hereof with respect to Swing Line Advances, and of Section 6.8 hereof with respect to BA Advances. If any amount is not in fact made available to the Agent by a Lender, the Agent shall be entitled to recover such amount (together with interest thereon at the rate determined by the Agent as being its cost of funds in the circumstances) on demand from such Lender or, if such Lender fails to reimburse the Agent for such amount on demand, from the Borrower.

 

44.


  4.6 Limitations on Advances

The undrawn Credit available under the Revolving Facility and under the Unsecured Facility shall cease to be available at the expiry of the Disbursement Period.

 

  4.7 Notices Irrevocable

Any notice given to the Agent in accordance with Articles 4 or 6 may not be revoked or withdrawn.

 

  4.8 Limits on BA Advances and Letters of Credit

Nothing in this Agreement shall be interpreted as authorizing the Borrower to issue Bankers’ Acceptances for a Designated Period expiring or, subject to Section 4.2.1, to cause to be issued Letters of Credit maturing, on a date which is after the expiry of the Term.

 

  4.9 Excess Resulting From Exchange Rate Change

Any time that, following one or more fluctuations in the exchange rate of the US Dollar against the Canadian Dollar, the sum of:

 

  4.9.1 the Equivalent Amount in Canadian Dollars of Loan Obligations under the Revolving Facility in US Dollars; and

 

  4.9.2 the Loan Obligations under the Revolving Facility in Canadian Dollars;

exceeds the amount of the Credit under the Revolving Facility then available, the Borrower shall promptly either (i) make the necessary payments or repayments to the Agent to reduce the Loan Obligations under the Revolving Facility to an amount equal to or less than the available amount of the Credit under the Revolving Facility or (ii) maintain or cause to be maintained with the Agent, deposits of Canadian Dollars in an amount equal to or greater than the amount by which the Loan Obligations under the Revolving Facility exceed the available amount of the Credit under the Revolving Facility, such deposits to be maintained in such form and upon such terms as are acceptable to the relevant Agent. Without in any way limiting the foregoing provisions, the Agent shall, on the date of each request for an Advance or on the date of any interest payment or on each Acceptance Date or Rollover Date, make the necessary exchange rate calculations to determine whether any such excess exists on such date and, if there is an excess, it shall so notify the Borrower.

 

  4.10 Advances and Repayments – Revolving Facility and Unsecured Facility

The Borrower agrees that if, at any time when the aggregate principal amount of the Advances outstanding under the Revolving Facility is less than the Threshold Amount:

 

  4.10.1 a Letter of Credit under the Unsecured Facility remains outstanding on the last Business Day of a calendar quarter; or

 

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  4.10.2 there are Prime Rate Advances outstanding under the Unsecured Facility;

the Borrower shall cause the portion of the Advances under the Unsecured Facility equal to the amount by which the Threshold Amount exceeds the aggregate principal amount of Advances under the Revolving Facility, to become Advances under the Revolving Facility. If the Borrower does not do so, the Agent, may, in its discretion, upon notice to the Borrower, transfer any portion of the principal amount of the Advances under the Unsecured Facility to the Revolving Facility, provided that in any such case the principal amount of the Advances then outstanding under the Revolving Facility does not exceed the Threshold Amount.

 

5. INTEREST AND FEES

None of the provisions of Article 5 shall apply to the Finnvera Facility Lenders or the Finnvera Term Facility, in respect of which the relevant provisions are set out in Section 4 of Schedule “P”.

 

  5.1 Interest on the Prime Rate Basis

The principal amount of the Loan Obligations which at any time and from time to time remains outstanding and in respect of which the Borrower has chosen or, in accordance with the provisions hereof, is obliged to pay interest on the Prime Rate Basis or the US Base Rate Basis, shall bear interest, calculated daily, on the daily balance of such Loan Obligations, from the date of each Advance up to and including the day preceding the date of repayment thereof in full at the annual rate (calculated based on a 365 or 366 day year, as the case may be) applicable to each of such days which corresponds to the Prime Rate or the US Base Rate, respectively, at the close of business on each of such days, plus the Margin.

 

  5.2 Payment of Interest on the Prime Rate Basis

The interest payable in accordance with Section 5.1 and calculated in the manner described therein shall be payable to the Agent monthly, in arrears, on the last day of each month or on such other date (limited to once per month) as the Agent may determine and advise the Borrower from time to time, the first payment of which shall be payable on the last day of the month in which the first Prime Rate Advance or US Base Rate Advance, respectively, was made.

 

  5.3 Derivative Obligations

The Borrower agrees that any amounts due to the Agent or the Lenders on account of Derivative Obligations shall be secured by the Security.

 

46.


  5.4 Interest on the Loan Obligations

Where no specific provision with respect to interest on an outstanding portion of the Loan Obligations is contained in this Agreement, the interest on such portion of the Loan Obligations shall be calculated and payable on the Prime Rate Basis.

 

  5.5 Arrears of Interest

Any arrears of interest or principal shall bear interest at a rate that is two percent (2%) per annum higher than the rate of interest payable in respect of the relevant principal amount of the Loan Obligations and shall be calculated and payable on the same basis.

 

  5.6 Maximum Interest Rate

The amount of the interest or fees payable in applying this Agreement shall not exceed the maximum rate permitted by Applicable Law. Where the amount of such interest or such fees is greater than the maximum rate, the amount shall be reduced to the highest rate that may be recovered in accordance with the applicable provisions of Applicable Law.

In determining whether the interest contracted for, charged or received by an Agent or a Lender exceeds the maximum rate, such Person may, to the extent permitted by Applicable Law, (a) characterize any payment that is not principal as an expense, fee or premium rather than interest, (b) exclude voluntary prepayments and the effects thereof, and (c) amortize, prorate, allocate and spread in equal or unequal parts the total amount of interest throughout the contemplated Term of the Loan Obligations hereunder.

 

  5.7 Fees

The Borrower shall pay the following fees (the “ Revolving Facility Fees ” and the “ Unsecured Facility Fees ”) to the Agent (for the benefit of the Revolving Facility Lenders and the Unsecured Facility Lenders, as applicable) and the Swing Line Lender, as applicable:

 

  5.7.1 for the Revolving Facility Lenders and the Unsecured Facility Lenders, a standby fee (the “ Standby Fee ”) calculated daily by multiplying the amount of the unused Credit (calculated based on the maximum amount that could be available under the Revolving Facility or the Unsecured Facility, respectively, irrespective of compliance with any conditions precedent or other restrictions) under the Revolving Facility (including the Swing Line Commitment) or the Unsecured Facility each day by the applicable rate set out in the definition of “Margin”, and dividing the result by 365 (or 366 in a leap year), and then multiplying that result by the number of days in the relevant quarter, payable quarterly in arrears two Business Days following the last day of each calendar quarter, or on such other date as the Agent or the Swing Line Lender, as applicable, may determine, acting reasonably; and

 

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  5.7.2 for each of the Revolving Facility Lenders and the Unsecured Facility Lenders, the upfront fees referred to in the Third Amending Agreement dated as of June 16, 2015; and

 

  5.7.3 for the Agent, an annual agency fee in the amount and payable in accordance with the provisions of a letter agreement dated as of June 16, 2015, entered into between the Borrower and the Agent.

 

  5.8 Interest Act

 

  5.8.1 For the purposes of the Interest Act (Canada), any amount of interest or fees calculated herein using 360, 365 or 366 days per year and expressed as an annual rate is equal to the said rate of interest or fees multiplied by the actual number of days comprised within the calendar year, divided by 360, 365 or 366, as the case may be.

 

  5.8.2 The parties agree that all interest in this Agreement will be calculated using the nominal rate method and not the effective rate method, and that the deemed re-investment principle shall not apply to such calculations. In addition, the parties acknowledge that there is a material distinction between the nominal and effective rates of interest and that they are capable of making the calculations necessary to compare such rates.

 

6. BANKERS’ ACCEPTANCES

None of the provisions of Article 6 shall apply to the Finnvera Facility Lenders or the Finnvera Term Facility, in respect of which the relevant provisions are set out in Schedule “P”.

 

  6.1 Advances by Bankers’ Acceptances and Conversions into Bankers’ Acceptances

 

  6.1.1

Subject to the applicable provisions of this Agreement, including Section 6.13, on any Business Day during the Disbursement Period, as part of the Credit available under the Revolving Facility, and/or, if the aggregate principal amount of the Advances outstanding under the Revolving Facility will not be less than the Threshold Amount (on the date said requested Advances under the Unsecured Facility are made), as part of the Credit available under the Unsecured Facility, by written Notice of Borrowing to the Agent given at least two (2) Business Days prior to the date of the Advance or the Rollover Date (for the purposes of this Article 6 called the “ Acceptance Date ”) and before 10:00 A.M., the Borrower may request that a BA Advance be made, that one or more Advances not borrowed as BA Advances be converted into one or more BA Advances or that a BA Advance or any part thereof be extended, as the case may be (the “ BA Request ”). Bankers’ Acceptances shall be issued on each Acceptance Date or Rollover Date, in a minimum Selected Amount, with respect to each Designated Period, of $5,000,000

 

48.


  or such greater amount which is an integral multiple of $1,000,000, shall have a Designated Period of 10 to 180 days (or such other period as may be available and acceptable to the Agent), subject to availability, and shall, in no event, mature on a date after the expiry of the applicable Term.

 

  6.1.2 Prior to making any BA Request, the Borrower shall deliver:

 

  (a) to the Lenders, in the name of each Lender which is a bank that accepts bankers’ acceptances (a “ BA Lender ”), drafts in form and substance acceptable to the Agent and the Lenders; and

 

  (b) to the Lenders in the name of each Lender which is not a bank or does not accept bankers’ acceptances (a “ Non-BA Lender ”), Discount Notes;

completed and executed by its authorized signatories in sufficient quantity for the Advance requested and in appropriate denominations to facilitate the sale of the Bankers’ Acceptances in the financial markets. No Lender shall be responsible or liable for its failure to accept a Bankers’ Acceptance hereunder if such failure is due, in whole or in part, to the failure of the Borrower to give appropriate instructions to the Agent on a timely basis, nor shall the Agent or any Lender be liable for any damage, loss or other claim arising by reason of any loss or improper use of any such instrument except a loss or improper use arising by reason of the gross negligence or wilful misconduct of the Agent, such Lender, or their respective employees. In order to facilitate issuances of Bankers’ Acceptances pursuant hereto, in accordance with the instructions given from time to time by the Borrower, the Borrower hereby authorizes each Lender, and for this purpose appoints each Lender its lawful attorney, to complete and sign Bankers’ Acceptances on behalf of the Borrower, in handwritten or facsimile or mechanical signature or otherwise, and once so completed, signed and endorsed, and following acceptance of them as Bankers’ Acceptances, to purchase, discount or negotiate such Bankers’ Acceptances in accordance with the provisions of this Article 6, and to provide the Available Proceeds (as defined in subsection 6.2.4(d)) to the Agent in accordance with the provisions hereof. Drafts so completed, signed, endorsed and negotiated on behalf of the Borrower by any Lender shall bind the Borrower as fully and effectively as if so performed by an authorized officer of the Borrower. Each Lender shall maintain a record with respect to such instruments (i) received by it hereunder, (ii) voided by it for any reason, (iii) accepted by it hereunder and (iv) cancelled at their respective maturities. Each Lender agrees to provide such records to the Borrower promptly upon request and, at the request of the Borrower, to cancel such instruments which have been so completed and executed and which are held by such Lender and have not yet been issued hereunder.

 

49.


  6.2 Acceptance Procedure

With respect to any BA Advance:

 

  6.2.1 The Agent shall promptly notify in writing each Lender of the details of the proposed issue, specifying:

 

6.2.2      (a)   For each BA Lender, (i) the principal amount of the Bankers’ Acceptances to be accepted by such Lender, and (ii) the Designated Period of such Bankers’ Acceptances; and
     (b)   For each Non-BA Lender, (i) the principal amount of the Discount Notes to be issued to such Lender, and (ii) the Designated Period of such Discount Notes.

 

  6.2.3 The Agent shall establish the Bankers’ Acceptance Discount Rate at or about 10:00 a.m. on the Acceptance Date, and the Agent shall promptly determine the amount of the BA Proceeds.

 

  6.2.4 Forthwith, and in any event not later than 11:30 A.M. on the Acceptance Date, the Agent shall indicate to each Lender, in the manner set out in Section 18.5:

 

  (a) the Bankers’ Acceptance Discount Rate;

 

  (b) the amount of the Stamping Fee applicable to those Bankers’ Acceptances to be accepted by such Lender on the Acceptance Date, calculated by multiplying the appropriate percentage set out in the definition of “Stamping Fee” by the face amount of each Bankers’ Acceptance (taking into account the number of days in the Designated Period), any such Lender being authorized by the Borrower to collect the Stamping Fee out of the BA Proceeds of those Bankers’ Acceptances;

 

  (c) the BA Proceeds of the Bankers’ Acceptances to be purchased by such Lender on such Acceptance Date; and

 

  (d) the amount obtained (the “ Available Proceeds ”) by subtracting the Stamping Fee mentioned in subsection 6.2.4(b) from the BA Proceeds mentioned in subsection 6.2.4(c).

 

  6.2.5 Not later than 1:00 P.M. on the Acceptance Date, each Lender shall make available to the Agent its Available Proceeds.

 

  6.2.6 Not later than 4:00 P.M. on the Acceptance Date, the Agent shall transfer the Available Proceeds to the Borrower in accordance with Section 8.8 and shall notify the Borrower on such day either by telex, fax or telephone (if by telephone, to be confirmed subsequently in writing) of the details of the issue.

 

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  6.3 Purchase of Bankers’ Acceptances and Discount Notes

Before giving value to the Borrower, the Lenders or the sub-participants which:

 

  6.3.1 are BA Lenders shall, on the Acceptance Date, accept the Bankers’ Acceptances by inserting the appropriate principal amount, Acceptance Date and maturity date in accordance with the BA Request relating thereto and affixing their acceptance stamps thereto, and shall purchase or sell same; and

 

  6.3.2 are Non-BA Lenders shall, on the Acceptance Date, complete the Discount Notes by inserting the appropriate principal amount, Acceptance Date and maturity date in accordance with the BA Request relating thereto.

 

  6.4 Maturity Date of Bankers’ Acceptances

Subject to the applicable notice provisions, at or prior to the maturity date of each Bankers’ Acceptance, the Borrower shall:

 

  6.4.1 give to the Agent a notice in the form of Schedule “B” requesting that the Lenders convert all or any part of the BA Advance then outstanding by way of Bankers’ Acceptances which are maturing into a Prime Rate Advance; or

 

  6.4.2 give to the Agent a notice in the form of Schedule “B” requesting that the Lenders extend all or any part of the BA Advance outstanding by way of Bankers’ Acceptances which are maturing into another BA Advance by issuing new Bankers’ Acceptances, subject to compliance with the provisions of subsection 6.1.1 with respect to the minimum Selected Amount and Designated Period; or

 

  6.4.3 at latest at 10:00 A.M., two (2) Business Days prior to the Rollover Date of each Bankers’ Acceptance then outstanding and reaching maturity, notify the Agent by way of a notice substantially in the form of Schedule “B-1” (but omitting paragraphs 3) thereof) that it intends to deposit in its account for the account of the Lenders on the Rollover Date an amount equal to the principal amount of each such Bankers’ Acceptance.

 

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  6.5 Deemed Conversions on the Maturity Date

If the Borrower does not deliver to the Agent one or more of the notices contemplated by subsections 6.4.1 or 6.4.2 or does not give the notice and make the deposit contemplated by subsection 6.4.3, the Borrower shall be deemed to have requested that the part of the BA Advance then outstanding which is reaching maturity be converted into a Prime Rate Advance.

 

  6.6 Conversion and Extension Mechanism

If under the conditions

 

  6.6.1 of subsection 6.4.1 and of Section 6.5, the Borrower requests or is deemed to have requested, as the case may be, that the Agent convert the portion of the BA Advance which is maturing into a Prime Rate Advance, the Lenders shall pay the Bankers’ Acceptances which are outstanding and maturing. Such payments by the Lenders will constitute an Advance within the meaning of this Agreement and the interest thereon shall be calculated and payable as the Borrower may request or may be deemed to have requested;

 

  6.6.2 of subsection 6.4.3, the Borrower makes a deposit in its account, without limiting in any way the generality of Section 17.5, the Borrower hereby expressly and irrevocably authorizes the Agent to make any debits necessary in its account in order to pay the Bankers’ Acceptances which are outstanding and maturing.

 

  6.7 Prepayment of Bankers’ Acceptances

Notwithstanding any provision hereof, the Borrower may not prepay any Bankers’ Acceptance other than on its maturity date; however, this provision shall not prevent the Borrower from acquiring, in its discretion but subject to the other provisions of this Agreement, any Bankers’ Acceptance in circulation from time to time.

 

  6.8 Apportionment Amongst the Lenders

The Agent is authorized by the Borrower and each Lender to allocate amongst the Lenders the Bankers’ Acceptances to be issued and purchased in such manner and amounts as the Agent may, in its sole discretion, but acting reasonably, consider necessary, so as to ensure that no Lender is required to accept and purchase a Bankers’ Acceptance for a fraction of $100,000, and in such event, the Lenders’ respective Commitments in any such Bankers’ Acceptances and repayments thereof shall be altered accordingly. Further, the Agent is authorized by the Borrower and each Lender to cause the proportionate share of one or more Lender’s Advances (calculated based on its Commitment) to be exceeded by no more than $100,000 each as a result of such allocations provided that the principal amount of outstanding Advances, including Bankers’ Acceptances, shall not thereby exceed the maximum amount of the respective Commitment of each Lender. Any resulting amount by which the requested face amount of any such Bankers’ Acceptance shall have been so reduced shall be advanced, converted or continued, as the case may be, as a Prime Rate Advance, to be made contemporaneously with the BA Advance.

 

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  6.9 Cash Deposits

Each Lender may, in its discretion, at any time, in the absence of any demand by the Borrower to such effect, grant an Advance to the Borrower, the amount of which shall be equivalent to the face value of all Bankers’ Acceptances then in circulation which have been accepted, which Advance shall not bear interest. The amount of the Advance shall not be taken into account in order to calculate the amount of the Credit used pursuant hereto. The Agent shall retain the amount of the Advance in a non-interest bearing cash collateral account as security, for the benefit of the Borrower, which amount may be entirely set-off against the amount of the Advance and the amount of the Bankers’ Acceptances in circulation which such Lender has accepted and may be imputed, in the Lender’s discretion, to the payment of the Bankers’ Acceptances at their maturity. The Borrower shall sign and remit as security with regard thereto all appropriate documents which the Lenders might judge necessary or desirable, specifically including an assignment of the credit balance of the deposit account held as security.

 

  6.10 Days of Grace

The Borrower shall not claim from the Lenders any days of grace for the payment at maturity of any Bankers’ Acceptances presented and accepted by the Lenders pursuant to the provisions of this Agreement. Further, the Borrower waives any defence to payment which might otherwise exist if for any reason a Bankers’ Acceptance shall be held by any Lender in its own right at the maturity thereof.

 

  6.11 Obligations Absolute

The obligations of the Borrower with respect to Bankers’ Acceptances shall be unconditional and irrevocable and shall be paid strictly in accordance with the provisions of this Agreement under all circumstances, including the following circumstances:

 

  6.11.1 any lack of validity or enforceability of any draft accepted by any Lender as a Bankers’ Acceptance; or

 

  6.11.2 the existence of any claim, set-off, defence or other right which the Borrower may have at any time against the holder of a Bankers’ Acceptance, the Lenders, or any other person or entity, whether in connection with this Agreement or otherwise.

 

  6.12 Depository Bills and Notes Act

Bankers’ Acceptances may be issued in the form of a depository bill and deposited with a clearing house, both terms as defined in the Depository Bills and Notes Act . The Agent and the Borrower shall agree on the procedures to be followed, acting reasonably. The Lenders are also authorized to issue depository bills as replacements for previously issued Bankers’ Acceptances, on the same terms as those replaced, and deposit them with a clearing house against cancellation of the previously issued Bankers’ Acceptances.

 

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  6.13 Advances and Repayments – Revolving Facility and Unsecured Facility

The Borrower agrees that if, at any time when the aggregate principal amount of the Advances outstanding under the Revolving Facility is less than the Threshold Amount, a Rollover Date in respect of Bankers Acceptances under the Unsecured Facility occurs, the Borrower shall cause the portion of the BA Advances (or, at the option of the Borrower, other Advances if any) under the Unsecured Facility equal to the amount by which the Threshold Amount exceeds the aggregate principal amount of Advances under the Revolving Facility to become Advances under the Revolving Facility. If the Borrower does not do so, the Agent, may, in its discretion, upon notice to the Borrower, transfer any such portion of the principal amount of the BA Advances under the Unsecured Facility to the Revolving Facility, provided that in any such case the principal amount of the Advances then outstanding under the Revolving Facility does not exceed the Threshold Amount.

 

7. ILLEGALITY, INCREASED COSTS, INDEMNIFICATION AND MARKET DISRUPTIONS

 

  7.1 Illegality

If any Lender determines that any law (whether or not as a result of a Change in Law) has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for any Lender or its applicable lending office to (a) make any Advance or maintain any Loan Obligations (or to maintain its obligation to make any Advance, including any BA Advance, Letter of Credit or participation in a Letter of Credit), or (b) determine or charge interest rates based upon any particular rate, then, on notice thereof by such Lender to the Borrower through the Agent (in the case of a Revolving Facility Lender or an Unsecured Facility Lender) or the Finnvera Facility Agent (in the case of a Finnvera Facility Lender), any obligation of such Lender with respect to the activity that is unlawful shall be suspended until such Lender notifies the Agent or the Finnvera Facility Agent, as the case may be, and the Borrower that the circumstances giving rise to such determination no longer exist. Upon receipt of such notice, the Borrower shall, upon demand from such Lender (with a copy to the Agent), prepay or, if conversion would avoid the unlawful activity, convert any affected Loan Obligations, or take any necessary steps with respect to any Letter of Credit, in order to avoid the activity that is unlawful. Upon any such prepayment or conversion, the Borrower shall also pay accrued interest on the amount so prepaid or converted. Each Lender agrees to designate a different lending office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender.

 

  7.2 Increased Costs

 

  7.2.1 General . If any Change in Law shall:

 

  (a) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender;

 

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  (b) subject any Lender to any Tax of any kind whatsoever with respect to this Agreement, any Letter of Credit, any participation in a Letter of Credit or any Advance made by it, or change the basis of taxation of payments to such Lender in respect thereof, except for Indemnified Taxes or Other Taxes covered by Section 7.3 and the imposition, or any change in the rate, of any Excluded Tax payable by such Lender; or

 

  (c) impose on any Lender or the applicable interbank market any other condition, cost or expense affecting this Agreement or Advances by or Loan Obligations owed to such Lender or any Letter of Credit or participation therein;

 

    and the result of any of the foregoing shall be to increase the cost to such Lender of making any Advance or maintaining any Loan Obligations (or of maintaining its obligation to make any such Advance), or to increase the cost to such Lender or the Issuing Lender of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender or the Issuing Lender hereunder (whether of principal, interest or any other amount), then upon request of such Lender the Borrower will pay to such Lender such additional amount or amounts as will compensate such Lender for such additional costs incurred or reduction suffered.

 

  7.2.2 Capital Requirements . If any Lender determines that any Change in Law affecting such Lender or any lending office of such Lender or such Lender’s holding company, if any, regarding capital requirements has or would have the effect of increasing the cost to such Lender of making or maintaining its Commitment or any Advance or Loan Obligation, or reducing any amount otherwise receivable by such Lender hereunder with respect thereto, then from time to time the Borrower will pay to such Lender such additional amount or amounts as will compensate such Lender or its holding company for any such reduction suffered.

 

  7.2.3 Certificates for Reimbursement . A certificate of a Lender setting forth the amount or amounts necessary to compensate such Lender or its holding company, as the case may be, as specified in subsections 7.2.1 or 7.2.2 hereof, including reasonable detail of the basis of calculation thereof, and delivered to the Borrower shall be conclusive absent manifest error. The Borrower shall pay such Lender the amount shown as due on any such certificate within 15 Business Days after receipt thereof.

 

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  7.2.4 Delay in Requests . Failure or delay on the part of any Lender to demand compensation pursuant to this Section shall not constitute a waiver of such Lender’s right to demand such compensation, except that the Borrower shall not be required to compensate a Lender pursuant to this Section for any increased costs incurred or reductions suffered more than six months prior to the date that such Lender notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s intention to claim compensation therefor, unless the Change in Law giving rise to such increased costs or reductions is retroactive, in which case the six-month period referred to above shall be extended to include the period of retroactive effect thereof.

 

  7.3 Taxes

 

  7.3.1 Payments Free of Taxes . Any and all payments by or on account of any obligation of the Borrower hereunder or under any other Loan Document shall be made free and clear of and without reduction or withholding for any Indemnified Taxes or Other Taxes. If any member of the VL Group, the Agent, the Finnvera Facility Agent or any Lender is required by Applicable Law to deduct or pay any Indemnified Taxes (including any Other Taxes) in respect of such payments by or on account of any obligation of a member of the VL Group hereunder or under any other Loan Document, then (i) the sum payable shall be increased by that member of the VL Group when payable as necessary so that after making or allowing for all required deductions and payments (including deductions and payments applicable to additional sums payable under this Section) the Agent, the Finnvera Facility Agent or the Lender, as the case may be, receives an amount equal to the sum it would have received had no such deductions or payments been required, (ii) the member of the VL Group shall make any such deductions required to be made by it under Applicable Law and (iii) the member of the VL Group shall timely pay the full amount required to be deducted to the relevant Governmental Authority in accordance with Applicable Law.

 

  7.3.2 Payment of Other Taxes by the Borrower . Without limiting the provisions of paragraph (a) above, the Borrower shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with Applicable Law.

 

  7.3.3

Indemnification by the Borrower . The Borrower shall indemnify the Agent, the Finnvera Facility Agent and each Lender, within 10 days after demand therefor, for the full amount of any Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this Section) paid by the Agent, the Finnvera Facility Agent or such Lender and any penalties, interest and reasonable expenses arising therefrom or with respect

 

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  thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to the Borrower by a Lender (with a copy to the Agent or the Finnvera Facility Agent, as applicable), or by the Agent or the Finnvera Facility Agent, as applicable, on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.

 

  7.3.4 Evidence of Payments . As soon as practicable after any payment of Indemnified Taxes or Other Taxes by a member of the VL Group to a Governmental Authority, such member of the VL Group shall deliver to the Agent or the Finnvera Facility Agent, as applicable, the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Agent or the Finnvera Facility Agent, as applicable.

 

  7.3.5 Status of Lenders . Any Foreign Lender that is entitled to an exemption from or reduction of withholding tax under the law of the jurisdiction in which the Borrower is resident for tax purposes, or under any treaty to which such jurisdiction is a party, with respect to payments hereunder or under any other Loan Document shall, at the request of the Borrower, deliver to the Borrower (with a copy to the Agent or the Finnvera Facility Agent, as applicable), at the time or times prescribed by Applicable Law or reasonably requested by the Borrower, the Agent or the Finnvera Facility Agent, as applicable, such properly completed and executed documentation prescribed by Applicable Law as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, (a) any Lender, if requested by the Borrower, the Agent or the Finnvera Facility Agent, as applicable, shall deliver such other documentation prescribed by Applicable Law or reasonably requested by the Borrower, the Agent or the Finnvera Facility Agent, as applicable, as will enable the Borrower, the Agent or the Finnvera Facility Agent, as applicable, to determine whether or not such Lender is subject to withholding or information reporting requirements, and (b) any Lender that ceases to be, or to be deemed to be, resident in Canada for the purposes of Part XIII of the Income Tax Act (Canada) or any successor provision thereto shall, within five days thereof, notify the Borrower and the Agent or the Finnvera Facility Agent, as applicable, in writing.

 

  7.3.6

Treatment of Certain Refunds . If the Agent, the Finnvera Facility Agent (as applicable) or a Lender determines, acting reasonably, that it has received a refund of any Taxes or Other Taxes as to which it has been indemnified by the Borrower or with respect to which a member of the VL Group has paid additional amounts pursuant to this Section or that,

 

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  because of the payment of such Taxes or Other Taxes, it has benefited from a reduction in Excluded Taxes otherwise payable by it, it shall pay to the Borrower or other member of the VL Group, as applicable, an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by the Borrower or other member of the VL Group under this Section with respect to the Taxes or Other Taxes giving rise to such refund or reduction), net of all out-of-pocket expenses of the Agent, the Finnvera Facility Agent or such Lender, as the case may be (without duplication of any such expenses if previously reimbursed), and without interest (other than an amount equal to the net after-Tax amount of any interest paid by the relevant Governmental Authority, if any, with respect to such refund). The Borrower or the other member of the VL Group, as applicable, upon the request of the Agent or such Lender, agrees to repay the amount paid over to the Borrower or other member of the VL Group (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Agent, the Finnvera Facility Agent or such Lender if the Agent, the Finnvera Facility Agent or such Lender is required to repay such refund or reduction to such Governmental Authority. This subsection shall not be construed to require the Agent, the Finnvera Facility Agent or any Lender to make available its tax returns (or any other information relating to its Taxes that it deems confidential) to the Borrower or any other Person, to arrange its affairs in any particular manner or to claim any available refund or reduction.

 

  7.4 Breakage Costs, Failure to Borrow or Repay After Notice

The Borrower shall indemnify each Lender against any loss or expense (including any loss or expense arising from interest or fees payable by such Lender to lenders of funds obtained by it in order to make or maintain any Advance and any loss or expense incurred in liquidating or re-employing deposits from which such funds were obtained) which such Lender may sustain or incur as a consequence of any: (a) default by the Borrower in the payment when due of the amount of or interest on any Loan Obligations or in the payment when due of any other amount hereunder, (b) default by the Borrower in obtaining an Advance after the Borrower has given notice hereunder that it desires to obtain such Advance, (c) default by the Borrower in making any voluntary reduction of the outstanding amount of any Loan Obligations after the Borrower has given notice hereunder that it desires to make such reduction, and (d) payment of any Bankers’ Acceptance or Tranche A CDOR Advance otherwise than on the maturity date thereof (including without limitation any such payment required pursuant to Section 8.1 or upon acceleration pursuant to Section 14.2). A certificate of the Agent or the Finnvera Facility Agent, as applicable providing reasonable particulars of the calculation of any such loss or expense shall be conclusive and binding in the absence of manifest error. If any Lender becomes entitled to claim any amount pursuant to this Section 7.4, it shall promptly notify the Borrower, through the Agent or the Finnvera Facility Agent, as applicable, of the event by reason of

 

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which it has become so entitled and reasonable particulars of the related loss or expense, provided that the failure to do so promptly shall not prejudice the Lenders’ right to claim hereunder.

Without prejudice to the survival or termination of any other agreement of the Borrower under this Agreement, the obligations of the Borrower under this Section 7.4 shall survive the payment of principal and interest on all Loan Obligations and the termination of the Credit.

 

  7.5 Mitigation Obligations: Replacement of Lenders.

 

  7.5.1 Designation of a Different Lending Office . If any Lender requests compensation under Section 7.2, or requires the Borrower to pay any additional amount to it or to any Governmental Authority for its account pursuant to Section 7.3, then such Lender shall (in the case of a Finnvera Facility Lender, subject to the consent of Finnvera, as applicable) use reasonable efforts to designate a different lending office for funding or booking its Loan Obligations hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment (a) would eliminate or reduce amounts payable pursuant to Section 7.2 or 7.3, as the case may be, in the future and (b) would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.

 

  7.5.2 Replacement of Lenders . If (a) any Lender requests compensation under Section 7.2, or (b) the Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 7.3, or (c) any Lender is a Defaulting Lender and has not remedied such default within 2 Business Days, or (d) if any Lender’s obligations are suspended under Section 7.1, then the Borrower may, at its sole expense and effort, upon 10 days’ notice to such Lender and the Agent or the Finnvera Facility Agent, as applicable, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Article 16 and Article 10 of Schedule “P”, as applicable), all of its interests, rights and obligations under this Agreement and the related Loan Documents to an Eligible Assignee, a Tranche A Assignee or other assignee permitted under Schedule “P”, as applicable that shall assume such obligations (which Eligible Assignee may be another Lender, if a Lender accepts such Assignment), provided that:

 

  (a) the Borrower pays the Agent the assignment fee specified in subsection 16.2.2(f), in the case of an Assignment;

 

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  (b) the Borrower pays the Finnvera Facility Agent the transfer fee specified in Section 10.3 of Schedule “P”, in the case of an assignment under the Finnvera Term Facility;

 

  (c) the assigning Lender receives payment of an amount equal to the outstanding principal of its Loan Obligations and participations in disbursements under Letters of Credit, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Loan Documents (including any breakage costs and amounts required to be paid under this Agreement as a result of prepayment to a Lender) from the Assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrower (in the case of all other amounts);

 

  (d) in the case of any such Assignment resulting from a claim for compensation under Section 7.2 or payments required to be made pursuant to Section 7.3, such assignment will result in a reduction in such compensation or payments thereafter; and

 

  (e) such Assignment does not conflict with Applicable Law.

A Lender shall not be required to make any such Assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require such Assignment and delegation cease to apply.

 

  7.6 Market Disruption

If, at any time or from time to time, the Requisite Disruption Lenders provide notice to the Agent that:

 

  7.6.1 (a) with respect to BA Advances, there no longer exists a market for Bankers’ Acceptances, or (b) with respect to BA Advances or Prime Rate Advances, (i) the Bankers Acceptance Discount Rate is unavailable and the Agent is unable to provide the alternative rate described in the definition of “Bankers’ Acceptance Discount Rate”, or (ii) the Bankers Acceptance Discount Rate does not adequately and fairly reflect the cost to each such Requisite Disruption Lender of funding such Advance as determined by each such Requisite Disruption Lender in good faith, or (iii) the Prime Rate or the US Base Rate at such time does not adequately and fairly reflect the cost to each such Requisite Disruption Lender of funding such Advance as determined by each such Requisite Disruption Lender in good faith;

any of the foregoing, a “ Market Disruption Event ”, then in any such case:

 

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  7.6.2 the Borrower and the Agent shall enter into negotiations (for a period of not more than 30 days) with a view to agreeing to a substitute basis for determining the applicable Bankers’ Acceptance Discount Rate. Any alternate basis (which may include having recourse to the Market Disruption Prime Rate and/or the Market Disruption US Base Rate) agreed upon pursuant to the foregoing sentence shall, with the prior consent of each of the Lenders affected by the Market Disruption Event and the Borrower, be binding on all of them;

 

  7.6.3 failing such agreement, the substitute basis for determining the applicable Bankers’ Acceptance Discount Rate shall be as notified to the Borrower by each affected Lender, accompanied by a certificate of such affected Lender setting out the appropriate substitute rate for the particular form of Advance in question, and accompanied by reasonable explanations and calculations, provided that such substitute rate shall not exceed the relevant rate of non-affected Lenders by more than 1.50%; and

 

  7.6.4 to the extent that the Advances affected by the Market Disruption Event are (a) US Base Rate Advances, the applicable US Base Rate for all affected Lenders shall be the Market Disruption US Base Rate, and (b) Prime Rate Advances, the applicable Prime Rate for all affected Lenders shall be the Market Disruption Prime Rate.

 

8. PAYMENT, REPAYMENT AND PREPAYMENT

None of the provisions of Article 8 shall apply to the Finnvera Facility Lenders or the Finnvera Term Facility, in respect of which the relevant provisions are set out in Section 5 of Schedule “P”. However, Section 18.8 hereof shall apply to all payments made in respect of the Finnvera Term Facility.

 

  8.1 Repayment of the Loan Obligations

The Borrower hereby agrees to repay the amount of the Loan Obligations outstanding under the Revolving Facility and under the Unsecured Facility on the last day of the Term.

 

  8.2 Voluntary Repayment and Prepayment of the Loan Obligations or Cancellation of the Credit

On any Business Day during the Term, after having given notice to the Agent substantially in the form of Schedule “B-1” of one (1) Business Day with respect to the repayment of Prime Rate Advances and two (2) Business Days with respect to BA Advances, and subject to Sections 4.10 and 6.13, the Borrower may repay in minimum amounts of $1,000,000, or in whole multiples of such amount, all or part of the principal amount of the Loan Obligations under the Revolving Facility or under the Unsecured Facility, for the account of the Revolving Facility Lenders or the Unsecured Facility Lenders, respectively, provided

 

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that in respect of a BA Advance, subject to Section 8.3, no repayment shall be made on a date other than a maturity date of the Bankers’ Acceptances outstanding at that time, with, in each case, all interest accrued and unpaid on the amounts so prepaid.

In addition, the Borrower may, upon the same notice, cancel any portion of the Credit that has not been drawn by the Borrower, provided that the Credit under the Unsecured Facility must be cancelled in full before any cancellation of the Credit under the Revolving Facility may occur. No Standby Fee shall be payable in respect of any portion of the Credit so cancelled as and from the effective date of its cancellation. The Borrower shall not be permitted to draw Advances in respect of any portion of the Credit so cancelled.

 

  8.3 Cash Collateralization of BA Advances

If a prepayment to be made would require the repayment of outstanding Bankers’ Acceptances prior to their maturity, the Borrower shall provide to the Agent cash collateral in an amount equal to the face amount of such Bankers’ Acceptances which cash collateral shall be held by the Agent in an interest bearing account and used to repay same at maturity.

 

  8.4 Currency of Payments

All payments, repayments and prepayments, as the case may be:

 

  8.4.1 of principal of the Loan Obligations, or any part thereof, shall be made in the same currency as that in which they are outstanding;

 

  8.4.2 of interest, shall be made in the same currency as the principal amount outstanding to which they relate;

 

  8.4.3 of Fees, shall be made in Canadian Dollars alone; and

 

  8.4.4 of the amounts referred to in Section 7.4, shall be made in the same currency as the losses, costs and expenses suffered or incurred by the Lenders.

 

  8.5 Payments by the Borrower to the Agent

All payments to be made by the Borrower in connection with this Agreement shall be made in funds having same day value to the Agent, at the Agency Branch, or at any other office or account in Toronto or Montreal designated by the Agent. Any such payment shall be made on the date upon which such payment is due, in accordance with the terms hereof, no later than 11:00 A.M.

 

  8.6 Payment on a Business Day

Each time a payment, repayment or prepayment is due on a day that is not a Business Day, it shall be made on the following Business Day.

 

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  8.7 Payments by the Lenders to the Agent

Any amounts payable to the Agent by a Lender shall be paid in funds having same day value to the Agent by the Lenders on a Business Day at the Agency Branch.

 

  8.8 Payments by the Agent to the Borrower

Any payment received by the Agent for the account of the Borrower shall be paid in funds having same day value to the Borrower on the date of receipt, or if such date is not a Business Day, on the next Business Day, at the Branch.

 

  8.9 Netting

On the date of any Advance or on a Rollover Date (a “ Transaction Date ”), the Agent shall be entitled to net amounts payable on such date by the Agent to a Lender against amounts payable in the same currency on such date by such Lender to the Agent, for the account of the Borrower. Similarly, on any Transaction Date, the Borrower hereby authorizes each Lender to net amounts payable in one currency on such date by such Lender to the Agent, for the account of the Borrower, against amounts payable in the same currency on such date by the Borrower to such Lender in accordance with the Agent’s calculations made in accordance with the provisions of this Agreement.

 

  8.10 Application of Payments

 

  8.10.1 Except as otherwise indicated herein, all payments made to the Agent by the Borrower for the account of the Revolving Facility Lenders or the Unsecured Facility Lenders shall be distributed the same day by the Agent, in accordance with its normal practice, in funds having same day value, among the Revolving Facility Lenders or the Unsecured Facility Lenders, as the case may be, to the accounts last designated in writing by each Revolving Facility Lender or Unsecured Facility Lender to the Agent, pro rata in accordance with their respective Applicable Percentage, and notice thereof shall be given to the Borrower by the Agent within a reasonable delay.

 

  8.10.2 Except as otherwise indicated herein or as otherwise determined by the Revolving Facility Lenders or the Unsecured Facility Lenders, as applicable, all payments made by the Borrower to the Agent on behalf of the Revolving Facility Lenders or the Unsecured Facility Lenders shall be applied by the Revolving Facility Lenders or the Unsecured Facility Lenders, as the case may be, as follows:

 

  (a) to the fees, costs, expenses and accessories contemplated by Article 7, Section 14.5 and Section 17.5 or by the Security Documents;

 

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  (b) to all amounts due under Article 5 hereunder;

 

  (c) to the repayment of the principal amount of the Loan Obligations;

 

  (d) to any other amounts due pursuant to this Agreement.

 

  8.11 No Set-Off or Counterclaim by Borrower

All payments by the Borrower shall be made free and clear of and without any deduction for or on account of any set-off or counterclaim.

 

  8.12 Debit Authorization

The Agent is hereby authorized to debit the Borrower’s and the Guarantors’ account or accounts maintained from time to time at the Branch or elsewhere, and to set off and compensate against any and all accounts, credits and balances maintained at any time by the Borrower or the Guarantors for the amount of any interest or any other amounts due and owing hereunder from time to time payable by the Borrower, in order to obtain payment thereof.

 

9. SECURITY

 

  9.1 Security for Advances

As general and continuing security for the performance by the Borrower of its obligations to the Agents and the Lenders hereunder, including its obligations under the Swing Line and the other Loan Documents, its obligation to perform and pay the Loan Obligations and all Derivative Obligations (provided that the Loan Obligations under the Unsecured Facility shall not benefit from any Security Documents other than the Guarantees described in subsection 9.1.1), as such agreements are, from time to time, amended, restated, amended and restated, extended or renewed, the Borrower shall:

 

  9.1.1 cause to be executed by each of the Guarantors an unconditional solidary (joint and several) Guarantee in favour of the Agent on behalf of the Lenders, of the obligations of the Borrower under this Agreement, all Derivative Obligations and the Loan Documents, substantially in the form annexed as Schedule “D”;

 

  9.1.2 execute and cause to be executed by each of the Guarantors an agreement pledging the Equity Interests of each of their respective Subsidiaries to the Agent on behalf of the Lenders, which agreement shall be substantially in form of Schedule “E” (the “ Share Pledge ”);

 

  9.1.3

execute and cause to be executed by each of the Guarantors first-ranking security (subject only to Permitted Charges) in favour of the Agent on behalf of the Lenders, by way of a hypothec on the universality of all of its movable and immovable property located in the Province of Quebec

 

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  (and/or, at the option of the Agent, by way of a hypothec securing Debentures granted in favour of the Agent or a collateral agent designated by the Agent as the power of attorney (“fondé de pouvoir”) of the Lenders within the meaning of Article 2692 of the Civil Code of Quebec , as contemplated by Section 18.16), the whole subject to the waivers contained in the letters referred to in Section 17.4. Notwithstanding the foregoing, the Borrower and the Guarantors shall only be obliged to make additional registrations of the foregoing security after the date of this Agreement against any network in the land registry of Quebec on every second anniversary of the date of this Agreement;

 

  9.1.4 execute and cause to be executed by each of the Guarantors a Debenture Pledge of the Debentures referred to in subsection 9.1.3;

 

  9.1.5 execute first-ranking security (subject only to Permitted Charges) in favour of each Revolving Facility Lender that is a bank, within the meaning of the Bank Act (Canada), under Sections 427 and following of the Bank Act (Canada);

 

  9.1.6 execute and cause to be executed by each of the Guarantors in favour of the Agent on behalf of the Lenders, a first-ranking (subject only to Permitted Charges) General Security Agreement and mortgage charging all of its property and assets, personal (movable) and real (immovable), if any, located elsewhere in Canada or in the USA (and/or, at the option of the Agent, by way of a debenture or other instrument containing the same Charges);

 

  9.1.7 execute and cause to be executed by each of the Guarantors a first-ranking assignment, by way of collateral security, of the contracts governing or evidencing intellectual property rights (subject to Permitted Charges, and to the extent not prohibited by the terms of the agreements governing such rights) in favour of the Agent on behalf of the Lenders; and

 

  9.1.8 cause the Agent on behalf of the Lenders to be named in all insurance policies protecting the members of the VL Group and their movable property, activities, business interruption and third party liability against any form of loss as a named insured as its interest may appear, and deliver to the Agent certificates of insurance in form and substance satisfactory to the Agent.

 

  9.2 ECA Guarantee

Notwithstanding any provision in this Agreement to the contrary, the ECA Guarantee (as defined in Schedule “P”), any replacement guarantee or instrument delivered pursuant to the provisions of Section 8.3 of Schedule “P”, and all proceeds derived therefrom shall be for the sole benefit of the Finnvera Facility Lenders.

 

65.


  9.3 Guarantors – Exception

After the Closing Date, any member of the VL Group may create or acquire one or more Subsidiaries that are or are not wholly-owned by a member of the VL Group, including as a result of its participation in a joint venture with another Person. Such Subsidiary shall not be required to provide a Guarantee pursuant to subsection 9.1.1 or to provide the Security, provided that the absence of such Guarantee does not cause the Borrower to breach the provisions of Section 12.12 at the time of the creation or Acquisition or at any time thereafter, and shall not be considered a Guarantor. If such Subsidiary is wholly-owned, it will be a member of the VL Group. In addition, the Borrower may at any time request to the Agent that one or more of its Subsidiaries (each, a “ Released Guarantor ”) shall cease to be considered a Guarantor and that its Guarantee provided pursuant to subsection 9.1.1 and its Security be discharged and terminated if the following conditions are satisfied on the effective date on which such Released Guarantor shall so cease to be considered a Guarantor (the “ Release Date ”): (i) the release of the Released Guarantor as a Guarantor on the Release Date shall not cause the Borrower to breach the provisions of Section 12.12, (ii) no Default or Event of Default exists on the Release Date, and (iii) contemporaneously with the Release Date, all existing Guarantees granted by the Released Guarantor in respect of obligations of the Borrower under Additional Offerings permitted by paragraphs (f) and (g) of Section 13.7, and unsecured Debt permitted by paragraph (i) of Section 13.7, shall also be terminated substantially contemporaneously. In the event that a Released Guarantor ceases to be considered a Guarantor by satisfying all of the conditions of the previous sentence of this Section 9.3, the Security on the property of such Released Guarantor and the Guarantee given by it pursuant to subsection 9.1.1 shall be discharged and terminated by the Agent without any requirement to obtain the consent of the Lenders (and such Person shall thereafter cease to be considered a Guarantor).

 

  9.4 Release of Security in Certain Circumstances

The Lenders agree to instruct the Agent to release all of the Security at the request of the Borrower if the Borrower’s senior unsecured debt rating obtained from any 2 of DBRS, S&P or Moody’s has been and remains not less than BBB(low)/BBB-/Baa3 for a period of not less than 6 months.

 

  9.5 Limitation on Aggregate Principal Amount of Loan Obligations Secured by the Security Documents

Notwithstanding any terms of any Loan Documents (including all Security Documents) to the contrary, the Agents and all Lenders confirm and agree that:

 

  9.5.1 The Debt of the VL Group to the Agents and the Lenders pursuant to and arising under the Unsecured Facility shall not form part of the Loan Obligations secured by the Security Documents and the Security (other than the Guarantees described in subsection 9.1.1);

 

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  9.5.2 from and after any Conversion Date-Partial, all Loan Obligations described in the relevant Conversion Notice-Partial shall be secured by the Security Documents; and

 

  9.5.3 from and after the Conversion Date-Total, all Loan Obligations shall be secured by the Security Documents.

 

10. CONDITIONS PRECEDENT

None of the provisions of Section 10.1 or 10.2 shall apply to the Finnvera Facility Lenders or the Finnvera Term Facility, in respect of which the relevant provisions are set out in Section 6 of Schedule “P”.

 

  10.1 Initial Advance Under the Revolving Facility After the Closing Date

The obligation of the Lenders to make the initial Advance under the Revolving Facility after the Closing Date is conditional upon the fulfilment of each of the conditions set out in this Section 10.1 and in Section 10.2 to the entire satisfaction of the Agent and the Lenders:

 

  10.1.1 certified copies of all of the constating documents, borrowing by-laws and resolutions of the Borrower and of each other member of the VL Group not previously provided to the Agent shall have been provided to the Agent;

 

  10.1.2 all Charges on the property of each member of the VL Group, other than Permitted Charges, shall have been discharged;

 

  10.1.3 this Agreement shall have been executed and delivered, and each of the Security Documents shall have been amended, executed, delivered, issued or assigned and registered or published, as the case may be, wherever required;

 

  10.1.4 all of the issued and outstanding Equity Interests of the Subsidiaries referred to in subsection 9.1.2 owned, directly or indirectly by the Borrower and any of its Subsidiaries at the relevant time, shall have been pledged in accordance with the Share Pledge executed by the Borrower and the relevant Subsidiaries and all of the pledged Equity Interests shall have been remitted to the Agent;

 

  10.1.5 the Borrower shall have delivered to the Agent a certificate in the form of Schedule “F” signed by an officer stipulating and certifying that:

 

  (a) such officer has taken cognizance of all the terms and conditions of this Agreement and of all contracts, agreements and deeds pertaining hereto;

 

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  (b) no Default or Event of Default has occurred or exists hereunder;

 

  (c) the corporate structure of the VL Group is as set out in the diagram attached to the certificate;

 

  (d) each member of the VL Group holds the permits, Licences, licences and authorizations required in order to permit it to possess its property and its real estate and to carry on its business in the manner in which it is being carried on at present;

 

  (e) all property to be charged by the Security Documents is located in the jurisdictions described in a schedule thereto;

 

  10.1.6 the Borrower shall have delivered to the Agent the favourable legal opinion(s) of the counsel to the VL Group, addressed to the Lenders, the Agent and its counsel, in form and substance acceptable to the Agent and its counsel, acting reasonably, including with regard to the continuing validity of all relevant Guarantees and Security; and

 

  10.1.7 the Borrower shall have paid to each of the Revolving Facility Lenders an upfront fee in the amount and payable as set forth in the invitation letter sent to it by the Borrower dated May 30, 2011.

 

  10.2 Conditions Precedent to any Advance

The obligation of the Lenders to make any Advance under the Credit is conditional upon each of the following conditions having been satisfied:

 

  10.2.1 the representations and warranties contained in this Agreement shall continue to be true and correct (except where stated to be made as at a particular date);

 

  10.2.2 except in the case of Swing Line Advances, the Borrower shall have delivered to the Agent or the Finnvera Facility Agent, as applicable, a completed Notice of Borrowing;

 

  10.2.3 nothing shall have occurred since March 31, 2011 which would constitute a Material Adverse Change; and

 

  10.2.4 no Default shall have occurred and be continuing and no Event of Default shall have occurred.

 

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  10.3 Waiver of Conditions Precedent

The conditions set out in Sections 10.1 and 10.2 are solely for the benefit of the Lenders, and may be waived by the Agent with the unanimous consent of the Lenders, without prejudice to the right of the Agent to assert any such condition in connection with any subsequently requested Advance.

 

11. REPRESENTATIONS AND WARRANTIES

For so long as the Loan Obligations remain outstanding and unpaid, or the Borrower is entitled to borrow hereunder (whether or not the conditions precedent to such borrowing have been or may be satisfied), the Borrower hereby represents and warrants to the Lenders that:

 

  11.1 Incorporation

Each member of the VL Group is duly incorporated or organized, validly existing and in good standing under the Applicable Laws of its jurisdiction of incorporation or organization and of all jurisdictions in which it carries on business or is otherwise required to be so qualified. Each member of the VL Group has the capacity and power, whether corporate or otherwise, to hold its assets and carry on the business presently carried on by it or which it proposes to carry on hereafter in each jurisdiction where such business is carried on.

 

  11.2 Authorization

The Borrower and each Guarantor has the power and has taken all necessary steps under the Applicable Laws in order to be authorized to borrow hereunder, to provide the Security, as the case may be, and to execute and deliver and perform its obligations under this Agreement and each of the Security Documents to which it is a party, as the case may be, in accordance with the terms and conditions thereof and to complete the transactions contemplated in the Security Documents and herein, as the case may be. This Agreement has been duly executed and delivered by duly authorized officers of the Borrower and is, and each of the Security Documents to which the Borrower and each Guarantor is a party is, and when executed and delivered in accordance with the terms hereof, shall be, a legal, valid and binding obligation of the Borrower and each Guarantor, respectively, enforceable in accordance with its terms.

 

  11.3 Compliance with Applicable Law and Contracts

The execution and delivery of and performance of the obligations under this Agreement and each of the Security Documents by the Borrower and each Guarantor, as the case may be, in accordance with their respective terms and the completion of the transactions contemplated therein and herein by the Borrower and each other member of the VL Group, as the case may be, do not require any consents or approvals, do not violate any Applicable Laws, do not conflict with, violate or constitute a breach under the documents of incorporation or organization or by-laws of any member of the VL Group or under any agreements, contracts or deeds to which any member of the VL Group is a party or binding upon it or its assets and

 

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do not result in or require the creation or imposition of any Charge whatsoever on the assets of any member of the VL Group, whether presently owned or hereafter acquired, save for the Permitted Charges.

 

  11.4 Core Business

The VL Group operates businesses in the cable, telecommunications, media and entertainment industries, including on-line internet services, telephony, wireless communications, interactive technologies, the distribution of media content, and anything related or ancillary thereto including activities that are a reasonable evolution of, and consistent with, the foregoing.

 

  11.5 Financial Statements

The financial statements provided from time to time hereunder are prepared in accordance with GAAP applied on a consistent basis throughout the periods specified (except as noted thereon) and are an accurate representation of the financial position of the Borrower on a consolidated basis as of the respective dates specified and the results of their operations and cash flows for the respective periods specified.

 

  11.6 Contingent Liabilities and Indebtedness

Neither the Borrower nor any other member of the VL Group has (a) any material Contingent Obligations or contingent liabilities known to it which are not disclosed or referred to in the most recent financial statements delivered to the Agent and the Finnvera Facility Agent in accordance with the provisions of Section 12.15 or otherwise disclosed to the Agent and the Finnvera Facility Agent in writing, or (b) incurred any Indebtedness which is not disclosed in or reflected in such financial statements, or otherwise disclosed to the Agent and the Finnvera Facility Agent in writing, other than Contingent Obligations, contingent liabilities or Indebtedness incurred in the ordinary course of business, and Debt permitted hereunder.

 

  11.7 Title to Assets

Each member of the VL Group has good, valid and marketable title to all of its properties and assets, free and clear of any Charges other than Permitted Charges. All of the immovable property (including any cable or telecommunications network) owned by the VL Group as of the Closing Date is listed in Schedule “I”. All premises occupied by any member of the VL Group as of the Closing Date containing material assets belonging to such members of the VL Group are also listed in Schedule “I”. All of the material tangible movable property of the VL Group as of the Closing Date is located in the provinces of Quebec and Ontario. Each member of the VL Group has rights sufficient for it to use all the Licences, licences, intellectual property and patents, patent applications, trademarks, trademark applications, trade names, service marks, copyrights, industrial designs, technology and other similar intellectual property rights reasonably necessary for the conduct of its business. To the knowledge of the Borrower, neither it nor any member of the

 

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VL Group is infringing or is alleged to be infringing the intellectual property rights of any other Person, except where such infringement could not reasonably be expected to cause a Material Adverse Change.

 

  11.8 Litigation

There are no actions, suits or legal proceedings instituted or pending or, to the knowledge of each member of the VL Group, threatened, against any of them or their property before any court or arbitrator or any governmental body or instituted by any governmental body which could reasonably be expected to result in a Material Adverse Change.

 

  11.9 Taxes

Each member of the VL Group has filed within the prescribed delays all federal, provincial or other tax returns which it is required by Applicable Law to file and all Taxes levied with respect to each member of the VL Group have been paid when due, except to the extent that (a) payment thereof is being contested in good faith by such member of the VL Group in accordance with the appropriate procedures, for which adequate reserves have been established in the books of the relevant member of the VL Group, and (b) the outcome of such contestation would not reasonably be expected to result in a Material Adverse Change.

 

  11.10 Insurance

Each member of the VL Group has contracted for the insurance coverage described in Section 12.6.

 

  11.11 No Adverse Change

No Material Adverse Change has occurred since December 31, 2010.

 

  11.12 Regulatory Approvals

No member of the VL Group is required to obtain any consent, approval, authorization, permit, Licence or licence from, nor to effect any filing or registration with, any federal, provincial or other regulatory authority in connection with the execution, delivery or performance, in accordance with their respective terms, of this Agreement or the Security Documents, any borrowings hereunder and the granting of the Security.

 

  11.13 Compliance with Applicable Law and Licences

Each member of the VL Group is in full compliance in all material respects with all requirements of Applicable Law and with all of the conditions attaching to its permits, authorizations, Licences, licences, certificates and approvals, including without limitation its articles of incorporation and by-laws.

 

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  11.14 Pension and Employment Liabilities

Except for a deficit not exceeding $5,000,000 in respect of the pension plan for executives of the Borrower, no member of the VL Group has any unfunded pension liabilities (except for amounts that are not material to the Borrower on a consolidated basis and except for any such plan that does not need to be fully funded in accordance with Applicable Law), whether valued on a going concern or a wind-up basis, and all material obligations (including wages, salaries, commissions and vacation pay) to current employees and to former employees have been paid in full or duly provided for.

 

  11.15 Priority

The Security and Charges created, evidenced or constituted by or under the Security Documents bind each member of the VL Group which is a party thereto, are valid and subject to no Charge, other than the Permitted Charges, and are enforceable, as security for the performance of the obligations secured thereunder, in accordance with their respective terms, against the members of the VL Group which are parties thereto.

 

  11.16 Complete and Accurate Information

All of the information, reports and other documents and all data (other than forecasts), as well as the amendments thereto, provided to the Agent, the Finnvera Facility Agent and/or Finnvera plc by or on behalf of the VL Group were, at the time same were provided, and are at the date hereof, complete, true and accurate in all material respects. All forecasts provided to the Agent and/or the Finnvera Facility Agent were prepared in good faith and all assumptions used therein were reasonable.

 

  11.17 Share Capital

On the Closing Date, all of the shares of: (a) the Borrower are owned, directly or indirectly, by Quebecor Media Inc.; and (b) each of the Guarantors are owned, directly or indirectly, by the Borrower, free and clear of any Charges other than Permitted Charges.

 

  11.18 Absence of Default

There exists no Default or Event of Default hereunder.

 

  11.19 Agreements with Third Parties

Each member of the VL Group is in compliance in all material respects with each and every one of its obligations under agreements with third parties to which it is a party or by which it is bound, the breach of which could reasonably be expected to result in a Material Adverse Change.

 

  11.20 Anti-Terrorism and Money Laundering Laws

No member of the VL Group or any of its Subsidiaries is a Person or entity that is:

 

  11.20.1 referred to in section 5 of the Proceeds of Crime Act, that is subject to the obligations applicable to such persons or entities under the Proceeds of Crime Act;

 

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  11.20.2 on the list of names subject to the Regulations Establishing a List of Entities made under subsection 83.05(1) of the Criminal Code (Canada), the Regulations Implementing the United Nations Resolutions on the Suppression of Terrorism (RIUNRST) and the United Nations Al-Qaida and Taliban Regulations (UNAQTR) published by the Office of the Superintendent of Financial Institutions Canada; or

 

  11.20.3 affiliated with a Person or entity listed above.

 

  11.21 Environment

 

  11.21.1 There are no existing claims, demands, suits, proceedings or actions of any nature whatsoever, whether threatened or pending, arising out of the presence on any property owned or controlled by any member of the VL Group, either past or present, of any Hazardous Substances, or out of any past or present activity conducted on any property now owned by any member of the VL Group, whether or not conducted by any member of the VL Group, involving Hazardous Substances, which would reasonably be expected to result in a Material Adverse Change;

 

  11.21.2 To the best of the knowledge of the Borrower, after due enquiry:

 

  (a) there is no Hazardous Substance existing on or under any property of any member of the VL Group which constitutes a material violation of any Environmental Law for which an owner, operator or person in control of a property may be held liable;

 

  (b) the business of each member of the VL Group is being carried on so as to comply in all material respects with all Environmental Laws and all Applicable Laws concerning health and safety matters;

 

  (c) no Hazardous Substance has been spilled or emitted into the environment contrary to Environmental Laws from any property owned, operated or controlled by any member of the VL Group for which such member of the VL Group could have any material liability;

 

  (d) compliance by the members of the VL Group with all current Environmental Laws would not reasonably be expected to cause a Material Adverse Change;

 

73.


  (e) no member of the VL Group is in default in filing any report or information material to its business with any Governmental Authority as required pursuant to Environmental Laws; and

 

  (f) each member of the VL Group has maintained, in all material respects, all material environmental and operating documents and records material to its business substantially in the manner required by all Environmental Laws.

 

  11.22 Survival of Representations and Warranties

All of the representations and warranties made hereunder are true and correct at the Closing Date, shall be true and correct at the date of any Advance hereunder and on each Tranche A Rollover Date (as defined in Schedule “P”) (except where qualified in this Article 11 as being made as at a particular date), shall survive the execution and delivery of this Agreement, any investigation by or on behalf of the Lenders or the making of any Advance hereunder, and none of same are nor shall be waived, except in writing.

 

12. COVENANTS

For so long as the Loan Obligations remain outstanding and unpaid, or the Borrower is entitled to borrow hereunder (whether or not the conditions precedent to such borrowing have been or may be satisfied) and unless the Agent shall otherwise agree in writing upon obtaining the approval of the requisite majority of Lenders, the Borrower, for itself and each member of the VL Group and with respect to itself and each member of the VL Group, agrees as follows:

 

  12.1 Preservation of Juridical Personality

It shall do or cause to be done all things necessary to preserve and maintain its corporate existence in full force and effect, except as permitted under Sections 13.1 and 13.3.

 

  12.2 Preservation of Licences

It shall maintain in effect and obtain, where necessary, all such authorizations, approvals, Licences, licences or consents of such governmental agencies, whether federal, provincial or local, which may be or become necessary or required for each member of the VL Group to carry on its businesses and to satisfy its obligations hereunder and under the Security Documents.

 

  12.3 Compliance with Applicable Laws

It shall conduct its business in a proper and efficient manner and shall keep or cause to be kept appropriate books and records of account, in compliance with the Applicable Law, and shall record or cause to be recorded faithfully and accurately all transactions with respect to its business in accordance with GAAP applied on a consistent basis, and shall comply with all requirements of Applicable Law and with all the conditions attaching to its permits, authorizations, Licences, licences, certificates and approvals in all material respects.

 

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  12.4 Maintenance of Assets

It shall maintain or cause to be maintained in good operating condition all of its assets used or useful in the conduct of its business, as would a prudent owner of similar property, whether same are held under lease or under any agreement providing for the retention of ownership, and shall from time to time make or cause to be made thereto all necessary and appropriate repairs, renewals, replacements, additions, improvements and other works except as permitted under Section 13.3.

 

  12.5 Business

It shall not substantially change the nature of its business activities from its Core Business.

 

  12.6 Insurance

It shall maintain insurance coverage with responsible insurers, in amounts and against risks normally insured by owners of similar businesses or assets in areas which are generally similar to those in which the members of the VL Group are engaged. All such policies of insurance will contain a standard “mortgage clause” acceptable to the Agent providing that no such policy may be cancelled without the insurer providing not less than 30 days’ prior written notice to the Agent. The insurance policies confirming the insurance required hereunder shall not contain any co-insurance provisions except to the extent such co-insurance provisions would normally appear in policies covering other Persons engaged in similar businesses and owning similar properties as the VL Group, and consistent with prudent business practices.

 

  12.7 Payment of Taxes and Duties

It shall pay all Taxes which are imposed on it when due and payable, provided that no such Tax need be paid if (a) it is being contested in good faith by appropriate proceedings promptly initiated and diligently conducted, and (b) such reserves or other appropriate provision, if any, as shall be required by GAAP shall have been made therefor, and (c) the outcome of such contestation would not reasonably be expected to result in a Material Adverse Change.

 

  12.8 Access and Inspection

It shall allow the employees and representatives of the Agent, during normal business hours, to have access to and inspect the assets of the members of the VL Group, to inspect and take extracts from or copies of the books and records of the members of the VL Group and to discuss the business, assets, liabilities, financial position, operating results or business prospects of the members of the VL Group with the principal officers of the members of the VL Group and, after obtaining the approval of the Borrower which shall not be unreasonably withheld, with the auditors of the Borrower.

 

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  12.9 Maintenance of Account

It shall maintain operating accounts at the Branch or other branches of the Agent, as well as an account with the Swing Line Lender, at all times during the Term, if the Agent or the Swing Line Lender, as applicable, so requests. In addition, the Lenders shall have the right to provide all of the auxiliary non-credit banking services to the Borrower, at fees acceptable to the relevant Lender and the Borrower, acting reasonably.

 

  12.10 Performance of Obligations

It shall perform all obligations in the ordinary course of business, except to the extent that the non-fulfilment of same would not reasonably be expected to result in a Material Adverse Change, and except where the same are being contested in good faith, if the outcome of such contestation would not reasonably be expected to result in a Material Adverse Change. Notwithstanding the foregoing contained in this Section 12.10, it shall punctually pay all amounts due or to become due under this Agreement.

 

  12.11 Maintenance of Ratios

At the end of each quarter during the Term, on a rolling four-quarter basis, the Relevant Group shall maintain the following ratios:

 

  12.11.1 Leverage Ratio . A Leverage Ratio not exceeding 4.5:1; provided that for a period not exceeding 12 consecutive months immediately following an Acquisition permitted hereunder in an amount of not less than $100,000,000, such maximum Leverage Ratio shall be increased to, but shall not exceed, 5.0:1 (and further provided that in the event of a series of Acquisitions, the Leverage Ratio shall have reverted to 4.5:1 for at least one full quarter); and

 

  12.11.2 Interest Coverage Ratio . An Interest Coverage Ratio of at least 2.5:1.

 

  12.12 Ownership by the Borrower and Guarantors

At all times during the Term, the Borrower and the Guarantors shall collectively (a) own at least 80% of the consolidated assets of the Borrower (excluding Back-to-Back Securities), and (b) generate at least 80% of the consolidated EBITDA of the Borrower on a rolling four-quarter basis. All calculations made under this Section shall be consistent with those contained in the Borrower’s consolidated financial statements.

 

  12.13 Maintenance of Security

Subject to Section 9.3, it shall take all necessary steps to preserve and maintain in effect the rights of the Agent and the Lenders, as well as any collateral agent designated by the Agent, pursuant to the Security Documents, together with any renewals thereof or additional documents creating Charges that may be required from time to time. In addition, if any new Subsidiary of any member of the VL Group is created or Acquired, or if a Person otherwise

 

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becomes a member of the VL Group, then subject to Section 9.3, such Subsidiary will provide Security of the nature described in Article 9, together with such legal opinions as may be reasonably requested by the Agent.

 

  12.14 Payment of Legal Fees and Other Expenses

Whether the transactions contemplated by this Agreement are concluded or not and whether or not any part of the Credit is actually advanced, in whole or in part, the Borrower shall pay all reasonable costs relating to the Credit, including in particular:

 

  12.14.1 the reasonable legal fees and costs incurred by the Agent and the Lenders for the negotiation, drafting, signing, registration, publication and/or service of the commitment letter, this Agreement and the Security Documents, as well as any amendments, renunciations, consents or examinations pertaining to this Agreement and the Security Documents; and

 

  12.14.2 the reasonable costs of syndicating and advertising, as well as all reasonable fees, including reasonable legal fees and costs, incurred by the Agent, any collateral agent designated by the Agent, and the Lenders to preserve, enforce or exercise their respective rights hereunder or under the Security Documents following an action, a Default or an omission of the Borrower or of any other member of the VL Group.

All amounts due to the Agent and the Lenders pursuant hereto shall bear interest on the Prime Rate Basis from the date of their disbursement by the Lenders or from the date of their undertaking until the Borrower has repaid same in full, with interest on unpaid interest, as in the case of the Prime Rate Advances, taking into account such modifications as may be necessary. The obligations of the Borrower under this Section 12.14 shall subsist notwithstanding the full repayment of the Loan Obligations under the provisions hereof.

 

  12.15 Financial Reporting

For so long as the Loan Obligations remain outstanding and unpaid, or the Borrower is entitled to borrow hereunder (whether or not the conditions precedent to such borrowing have been or may be satisfied) and unless the Lenders shall otherwise agree in writing, the Borrower agrees to provide or cause to be provided to the Agent, with sufficient copies for the Agent, the Finnvera Facility Agent and each Lender, and so undertakes:

 

  12.15.1 Quarterly Statements

Within 60 days after the end of each financial quarter of each financial year of the Borrower (other than the last quarter):

 

  (a)

the unaudited consolidated balance sheet of the Borrower as at the end of such quarter and the related consolidated statements of

 

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  earnings and cash flows, for the period then ended, in each case with comparative figures for the same period for the immediately preceding financial year and in respect of the preceding financial year end; and

 

  (b) a Compliance Certificate of the Borrower signed by its chief financial officer, treasurer or another officer of the Borrower acceptable to the Agent, substantially in the form of Schedule “J” (a “ Compliance Certificate ”) and:

(i) setting forth the information necessary to determine whether the Borrower has complied with the covenants contained in Section 12.11;

(ii) (A) confirming that the percentage of the EBITDA on a rolling 4 quarter basis, assets (excluding Back-to-Back Securities) and Debt generated, held or owed by the VL Group, on an Adjusted Consolidated Basis, is not less than 95% of the consolidated EBITDA on a rolling 4 quarter basis, assets (excluding Back-to-Back Securities) and Debt of the Borrower, otherwise (B) providing the accurate percentage;

(iii) (A) confirming that the percentage of the EBITDA on a rolling 4 quarter basis and assets (excluding Back-to-Back Securities) generated or held by the Borrower and the Guarantors is not less than 95% of consolidated EBITDA on a rolling 4 quarter basis and assets (excluding Back-to-Back Securities) of the Borrower, otherwise (B) providing the percentage so as to confirm compliance with Section 12.12; and

(iv) certifying that the Borrower is in compliance with all terms and conditions of this Agreement and that no Default has occurred and is continuing or Event of Default has occurred or exists, or if a Default or an Event of Default has occurred, setting out the relevant particulars thereof, the period of existence thereof and what action the Borrower has taken or proposes to take with respect thereto.

 

  12.15.2 Annual Statements

 

  (a)

Within 120 days following the end of each financial year of the Borrower, the audited consolidated balance sheet of the Borrower as at the end of such year and the related consolidated statements of earnings and cash flows for such financial year, together with comparative figures for the immediately preceding year, the whole as certified without qualification by the current auditors of

 

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  the Borrower or otherwise by another reputable firm of independent chartered accountants acceptable to the Agent, and any audited statements of any Subsidiary of the Borrower that is not a member of the VL Group, if available; and

 

  (b) Within 75 days following the end of each financial year of the Borrower,

(i) a Compliance Certificate as described in Section 12.15.1(b); and

(ii) any information necessary to determine whether the Borrower has complied with Sections 12.11 and 12.12; provided that, to the extent that the percentage of the EBITDA on a rolling 4 quarter basis and assets (excluding Back-to-Back Securities) generated or held by the Borrower and the Guarantors is not less than 95% of the consolidated EBITDA on a rolling 4 quarter basis and assets (excluding Back-to-Back Securities) of the Borrower, such information shall only be provided at the reasonable request of the Agent.

Such Compliance Certificate and information shall be based on unaudited financial information, to be updated and replaced by a second Compliance Certificate to be provided along with the audited financial statements referred to in Section 12.15.2(a).

 

  12.15.3 Other Information

 

  (a) Within 75 days following the end of each financial year of the Borrower, the Annual Business Plan, which shall promptly be submitted to the Agent for the Lenders; and

 

  (b) Within 75 days following the end of each financial quarter of the Borrower in which the Leverage Ratio exceeded 4.0:1, a certificate of the Borrower signed by its chief financial officer or treasurer or another officer of the Borrower acceptable to the Agent, certifying a detailed calculation of Excess Cash Flow (in such form and providing such detail as the Agent may reasonably require) during such quarter (the “ Excess Cash Flow Certificate ”); and

 

  (c)

from time to time and forthwith upon demand by the Agent, such data, reports, statements, documents or other additional information pertaining to the business, assets, liabilities, financial position, operating results or business prospects of the VL Group and the Borrower’s non-wholly-owned Subsidiaries (to the extent

 

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  available and not subject to a confidentiality agreement, but excluding any such information which has not been provided to any partner of any such non-wholly-owned Subsidiary) as the Agent may request, acting reasonably.

 

  12.16 Notice of Certain Events

The Borrower shall advise the Agent and the Finnvera Facility Agent forthwith upon the occurrence of any of the following events:

 

  12.16.1 The commencement of any proceeding or investigation by or before any governmental body and any action or proceeding before any court or arbitrator against any member of the VL Group, or any of its property, assets or activities which could reasonably be expected to result in a Material Adverse Change;

 

  12.16.2 The occurrence of any Material Adverse Change which is known to the Borrower or any other member of the VL Group, acting reasonably;

 

  12.16.3 Any Default or Event of Default, specifying in each case the relevant details and the action contemplated in this respect.

 

  12.17 Accuracy of Reports

All information, reports, statements and other documents and data provided to the Agent, the Finnvera Facility Agent or the Lenders, whether pursuant to this Article or any other provisions of this Agreement shall, at the time same shall be provided, be true, complete and accurate in all material respects to the extent necessary to provide the Lenders with a true and accurate understanding of their effect.

 

13. NEGATIVE COVENANTS

For so long as the Loan Obligations or any other amounts payable hereunder to the Lender remain outstanding and unpaid, or the Borrower is entitled to borrow hereunder (whether or not the conditions precedent to such borrowing have been or may be satisfied), the Borrower, for itself and each member of the VL Group and with respect to itself and each member of the VL Group, agrees that it shall not do any of the following:

 

  13.1 Liquidation and Amalgamation

Liquidate or dissolve or take any steps to amalgamate, consolidate or effect any restructuring or corporate or capital reorganization, or change its head or registered office, except where (i) (a) the surviving entity of any such amalgamation or merger assumes all of the obligations hereunder and (b) the transaction in question is between a member of the VL Group and its wholly-owned Subsidiaries or is among wholly-owned Subsidiaries of the same member of the VL Group; or (ii) in all other cases, the transaction in question, in the sole opinion of the Lenders, acting reasonably, does not have a detrimental effect on the

 

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financial condition of the VL Group, taken as a whole, or on the position of the Lenders and their Security under the Security Documents or otherwise. Notwithstanding the foregoing, no member of the VL Group may become a Subsidiary of a Person who is a non-resident of Canada within the meaning of the Income Tax Act (Canada), without the prior written consent of the Lenders.

 

  13.2 Charges

Create, assume, enter into or permit to subsist, directly or indirectly, any Charge on the property of any member of the VL Group, other than Permitted Charges.

 

  13.3 Asset Dispositions

The VL Group shall not permit an Asset Disposition of all or any part of their property or assets (whether presently held or subsequently acquired), other than sales at fair market value (provided that any single transaction or series of transactions during the period from June 14, 2013 until the end of the Term of the Revolving Facility that involve property having an aggregate fair market value of less than $25,000,000 and a value per transaction of less than $5,000,000 shall not have to be disposed of at fair market value), and, in such case, only if at the time of the proposed Asset Disposition, (a) there is no Default or Event of Default hereunder and the proposed Asset Disposition will not cause such a Default or Event of Default, and (b) the amount of (A) EBITDA of the VL Group generated during the preceding 12 months by the assets comprised in any such Asset Disposition, plus (B) the aggregate 12-month trailing EBITDA of the VL Group generated by all other assets comprised in all previous Asset Dispositions made since the Third Amendment Closing Date (calculated as of the date of the applicable Asset Disposition), does not exceed 15% of the EBITDA of the VL Group for the 12 months ending on the last day of the month immediately preceding the date of the proposed Asset Disposition; provided that the VL Group shall be permitted to make (i) dispositions of inventory in the ordinary course of business, (ii) dispositions of machinery, equipment, spare parts and materials, appliances or vehicles, if same are no longer necessary or useful to the operation of the business or have become obsolete, worn out, surplus, damaged or unusable, as well as the non-material assets listed in Schedule “I” consisting of surplus real estate of the VL Group, which are excluded from the Security and not subject to any Charge thereunder, and (iii) Asset Dispositions between members of the VL Group to the extent that the Borrower complies with the provisions of Section 12.12. In the event of any Asset Disposition permitted under this Section 13.3 to a Person other than a member of the VL Group, (i) the Security on the assets so disposed of shall be discharged by the Agent without any requirement to obtain the consent of the Lenders, and (ii) in the case of any such Asset Disposition made in respect of 100% of the Equity Interests of a Guarantor, the Security on the property of such Guarantor and the Guarantee given by it pursuant to subsection 9.1.1 shall also be discharged and terminated by the Agent without any requirement to obtain the consent of the Lenders (and such Person shall thereafter cease to be considered a Guarantor). In addition, any member of the VL Group shall be permitted to dispose of Back-to-Back Preferred Shares in order to repay Back-to-Back Debt, and shall also be permitted to dispose of property as part of a Tax Benefit Transaction, provided that (A) no Default or Event of Default exists at the time and (B) disposing of such Back-to-Back Preferred Shares or property as part of a Tax Benefit Transaction will not cause a Default or an Event of Default.

 

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  13 .4 Preservation of Capital

Neither the Borrower nor any of the Guarantors shall: (a) return any capital to its shareholders or purchase, redeem, repurchase or otherwise acquire, directly or indirectly, for consideration, any shares of any class of its capital stock now or subsequently issued, or any other equity security issued by it of any nature (including warrants and options), (b) declare, pay or set aside for payment any dividend or distribution whatsoever in respect of any share of the capital stock of the Borrower or any Guarantor, or (c) set aside any funds for any of the purposes described in paragraphs (a) or (b); provided that distributions by way of loans, dividends, return of capital, management fees (in excess of the 2.5% limit set out in Section 13.10), share repurchases or other transactions of the nature described in paragraphs (a) or (b) above:

 

  13.4.1 made under Back-to-Back Transactions, Tax Benefit Transactions and, where Newco is a Guarantor, Tax Consolidation Transactions,

 

  13.4.2 made to the Borrower or to a Guarantor that has provided an unlimited Guarantee and the Security to the Agent on behalf of the Lenders,

 

  13.4.3 made at a time that the Leverage Ratio, calculated on a pro forma basis after taking into account the payment proposed, is less than or equal to 4.0:1, and

 

  13.4.4 consisting of a quarterly payment not in excess of 100% of Excess Cash Flow if the Leverage Ratio, calculated on a pro forma basis after taking into account the payment proposed, is greater than 4.0:1;

will be permitted, provided that (i) no Default or Event of Default exists at the time of the proposed distribution and (ii) making the payment of such amount will not cause a Default or Event of Default.

 

  13.5 Restrictions on Subsidiaries

Without the consent of the Majority Lenders, no member of the VL Group shall assume, enter into or otherwise become bound by any agreement or undertaking (including any undertaking in any Additional Offering) that would reasonably be expected to prevent such Person from declaring or paying dividends or inter-company payments or distributions of any kind to the Borrower, except as contained herein.

 

  13.6 Acquisitions

Make any Acquisition, in any manner whatsoever, directly or indirectly, other than an Acquisition required for the purpose of carrying on its business in the ordinary course, or permit any Subsidiary or Subsidiaries to be constituted otherwise than in accordance with

 

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the provisions of Section 13.10, except that (a) the members of the VL Group shall be permitted to make Acquisitions in the Core Business and permitted to create Subsidiaries (to the extent any such Subsidiaries are Acquired as part of any such Acquisition) if: (i) no Default or Event of Default exists at the time, (ii) paying the purchase price in respect of such Acquisition will not cause a Default or Event of Default, and (iii) any Person which is Acquired or created as a Subsidiary, if any, as a result of such Acquisition, becomes a member of the VL Group (other than in relation to a Spectrum Auction and Purchase, in which case Section 4.2.1 shall apply) and provides the Security contemplated by Section 4.2.1 or Article 9, subject to the exception contemplated by Section 9.3, as the case may be, (b) Acquisitions may be made of and between members of the VL Group to the extent that the Borrower complies with the provisions of Section 12.12, (c) any member of the VL Group shall be permitted to acquire Back-to-Back Securities in an amount not exceeding the amount of the corresponding Back-to-Back Securities, and shall also be permitted to acquire property as part of a Tax Benefit Transaction, provided that (A) no Default or Event of Default exists at the time and (B) acquiring such Back-to-Back Securities or property as part of a Tax Benefit Transaction will not cause a Default or an Event of Default, and (d) any member of the VL Group shall be permitted to acquire Equity Interests of any of its Affiliates to the extent such Equity Interests are converted in full into cash (pursuant to a redemption or other transaction by such Affiliate) either(i) substantially contemporaneously with the Acquisition, provided that (A) prior to the Acquisition, such Affiliate shall provide a Solvency Certificate from one of its senior financial officers, (B) no Default or Event of Default exists at the time and (C) acquiring such Equity Interests and the redemption or other transaction that follows will not cause a Default or an Event of Default, or (ii) within 3 Business Days after the date of the Acquisition, provided that in such case (A) prior to the Acquisition, at the request of the Agent, acting reasonably, such Affiliate shall provide a Solvency Certificate from a reputable third party acceptable to the Agent, (B) no Default or Event of Default exists at the time, and (C) acquiring such Equity Interests and the redemption or other transaction that follows will not cause a Default or an Event of Default.

 

  13.7 Debt and Guarantees

Incur or assume Debt, provide Guarantees or render itself liable in any manner whatsoever, directly or indirectly, for any Indebtedness or obligation whatsoever of another Person, except (a) hereunder for the purposes set forth in Section 3.1; (b) that a member of the VL Group may provide financial assistance to another member of the VL Group to the extent that the Borrower complies with the provisions of Section 12.12; (c) unsecured Debt not exceeding $75,000,000 under the Tranche B Finnvera credit agreement entered into among the Borrower, HSBC Bank plc, The Toronto-Dominion Bank and Sumitomo Banking Corporation of Canada dated as of November 13, 2009; (d) in connection with Debt incurred or assumed that is secured by Permitted Charges, and within the limits applicable thereto; (e) in connection with Back-to-Back Transactions and Tax Benefit Transactions including by way of unsecured daylight loans; (f) that the Borrower may incur or assume unsecured Debt by way of Additional Offerings, and that a member of the VL Group may provide unsecured Guarantees in respect of obligations of the Borrower under any such Debt

 

83.


outstanding at any time, to the extent that the Borrower complies with the applicable Leverage Ratio calculated on a pro forma basis and, subject to the provisions of Section 9.3, such member has provided a Guarantee under subsection 9.1.1 or provides such a Guarantee contemporaneously with its Guarantee in relation to the Additional Offering; (g) unsecured Debt by way of Additional Offerings incurred by the Borrower before the Closing Date and listed in Schedule “H” and including, subject to Section 9.3, unsecured Guarantees by members of the VL Group in respect of obligations of the Borrower under such Debt outstanding at any time; (h) the Borrower may borrow Subordinated Debt from Quebecor Media Inc. in a principal amount outstanding from time to time of up to $500,000,000, with interest at a rate not exceeding the greater of (y) the three month bankers’ acceptance rate quoted on Reuter’s Services, page CDOR, as at approximately 10:00 a.m. on such day plus 3.0% per annum, or (z) 7% per annum (together with interest accrued thereon or paid in kind, the “ QMI Subordinated Debt ”); (i) additional unsecured Debt of up to $250,000,000; (j) in connection with other Subordinated Debt; (k) unsecured daylight loans incurred in connection with Tax Consolidation Transactions, provided that prior to incurring the daylight loan made at the initiation of any Tax Consolidation Transaction in a minimum amount of $75,000,000, the Agent shall have been informed by the Borrower of the incurrence of such daylight loan; and (l) unsecured Debt in respect of daylight loans in the ordinary course of business for cash management purposes; provided that, with respect to any of the matters described in paragraphs (c) to (i) above inclusive, (A) no Default or Event of Default exists at the time, (B) incurring or assuming such Debt (including by way of providing such Guarantee) will not cause a Default or Event of Default, and (C) on a pro forma basis, the incurrence or assumption of such Debt would not reasonably be expected to cause the Borrower to breach any of its covenants under Section 12.11 hereof.

 

  13.8 Financial Assistance by the VL Group

Make any loan or advance to any party other than (a) as contemplated by Sections 13.4 and 13.6, or (b) to another member of the VL Group to the extent that the Borrower complies with the provisions of Section 12.12, or (c) by way of Back-to-Back Transactions or Tax Benefit Transactions. Notwithstanding the foregoing, the VL Group shall be entitled to provide financial assistance to their customers in the ordinary course of the Core Business by way of subsidizing consumer equipment purchases and leases and similar transactions.

 

  13.9 Subordinated Debt

Repay any Debt the repayment of which is subordinated to the rights of the Lenders, or pay any interest due to the creditor of any such Debt, other than (a) interest due in respect of Subordinated Debt (including the QMI Subordinated Debt), provided (for greater certainty) that no Default has occurred or will occur as a result of such payment, and (b) any amount under or in connection with the QMI Subordinated Debt, provided that the amount so repaid, together with the amounts distributed by the Borrower in accordance with Section 13.4, do not in the aggregate exceed the amounts permitted to be distributed by the Borrower under Section 13.4, and (c) in respect of Back-to-Back Securities or Back-to-Back Transactions. In addition, the Borrower may agree to the conversion of the QMI Subordinated Debt into additional Equity Interests of the Borrower.

 

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  13.1 0 Members of the VL Group, Related Party Transactions

Permit any Change in Control. In addition, no transaction shall be entered into by any member of the VL Group with any Associate of any member of the VL Group except on fair market terms and conditions as would be contracted by Persons dealing at arms’ length, provided that this last sentence shall not apply to the transactions expressly permitted by paragraph (e) of Section 13.7; provided, however, for greater certainty, that to the extent payments made in connection with or in respect of the Back-to-Back Transactions are made to any Affiliates of the Borrower that are not members of the VL Group, all corresponding payments required to be paid by such Affiliates pursuant to the related Back-to-Back Securities are received, immediately prior to, concurrently with or immediately subsequent to any such payments, by all applicable members of the VL Group, and each such payment by a member of the VL Group shall be conditional upon receipt of an equal or greater amount from such non-member of the VL Group that is an Affiliate. Finally, payment of a management fee or other similar expense by the Borrower to its direct or indirect parent company shall be permitted for bona fide services (including reimbursement for expenses incurred in connection with, or allocation of corporate expenses in relation to, providing such services) provided to, and directly related to the operations of, the VL Group, in an aggregate annual amount not to exceed 2.5% of consolidated revenues (being gross revenues of the VL Group calculated in accordance with GAAP, less any amounts derived from Persons that are not members of the VL Group except to the extent of the actual amount of dividends or distributions actually paid to a member of the VL Group by such Person) in any twelve-month period.

 

  13.11 Derivative Instruments

Enter into any Derivative Instruments other than for the purposes of hedging interest rate, commodity or foreign exchange exposure, and not for the purpose of speculation.

 

  13.12 Anti-Terrorism Laws

No member of the VL Group or any of its Subsidiaries shall engage in or conspire to engage in any transaction that has the purpose of evading or avoiding or any provision of the Proceeds of Crime Act that is applicable to its activities. The Borrower shall deliver to the Agent and Lenders any certification or other evidence requested from time to time by the Agent or any Lender, in its discretion, confirming compliance with this Section by the VL Group and each of its Subsidiaries.

 

14. EVENTS OF DEFAULT AND REALIZATION

 

  14.1 Event of Default

The occurrence of any of the following events shall constitute an Event of Default unless remedied within the prescribed delays or renounced to in writing:

 

  14.1.1 If the Borrower fails to make any payment of principal or Fees with respect to the Loan Obligations when due, or fails to pay any interest due hereunder within 3 Business Days from its due date; or

 

85.


  14.1.2 If the Borrower fails to respect any of the financial tests set out in Section 12.11 or 12.12 hereof at any time; provided that in the case of a breach of Section 12.12, the Borrower shall have 15 days to cure the Default as long as the Borrower and the Guarantors shall collectively (a) own at least 75% of the consolidated assets of the Borrower, and (b) generate at least 75% of the consolidated EBITDA of the Borrower on a rolling four-quarter basis. If the ownership or EBITDA generation level of the Borrower and the Guarantors is below 75%, no cure period shall apply;

 

  14.1.3 If the Borrower or any Guarantor (other than an Immaterial Subsidiary) fails to respect any of its other obligations and undertakings hereunder or under the Security Documents or another undertaking of the Borrower or any other Guarantor (other than an Immaterial Subsidiary) with respect to the Loan Obligations not otherwise contemplated by this Section 14.1 and has not remedied the Default within fifteen (15) days following the date on which the Agent has given written notice to the Borrower; or

 

  14.1.4 If (a) the Borrower or any other member of the VL Group (other than an Immaterial Subsidiary) commits an act of bankruptcy within the meaning of the Bankruptcy and Insolvency Act, makes an assignment in favour of its creditors, consents to the filing of a petition for a receiving order against it, files a proposal within the meaning of the Bankruptcy and Insolvency Act, or makes a motion to a tribunal to name, or consents to, approves or accepts the appointment of a trustee, receiver, liquidator or sequestrator with respect to itself or its property, commences any other proceeding with respect to itself or its property under the provisions of any law contemplating reorganizations, proposals, rectifications, compromises or liquidations in connection with insolvent Persons, in any jurisdiction whatsoever; or (b) a trustee, receiver, liquidator or sequestrator is named with respect to any member of the VL Group (other than an Immaterial Subsidiary) or its property, or any member of the VL Group (other than an Immaterial Subsidiary) is judged insolvent or bankrupt; or (c) a proceeding seeking to name a trustee, receiver, liquidator or sequestrator, or to force any member of the VL Group (other than an Immaterial Subsidiary) into bankruptcy, is commenced against any member of the VL Group (other than an Immaterial Subsidiary) or a proceeding is commenced by any other Person against any member of the VL Group (other than an Immaterial Subsidiary) under the provisions of any law contemplating reorganisations, proposals, rectifications, arrangements, compromises or liquidations in connection with insolvent Persons and is not settled or withdrawn within a delay of 30 days; or

 

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  14.1.5 If any member of the VL Group is in default with respect to any Indebtedness (other than amounts due to the Lenders hereunder) which has resulted in Indebtedness in excess of an amount of $25,000,000 becoming payable prior to its stated maturity or scheduled repayment date; or

 

  14.1.6 If one or more judgments is rendered by a competent tribunal against any member of the VL Group in an aggregate amount in excess of $25,000,000 (net of applicable insurance coverage pursuant to which liability is acknowledged in writing by the insurer, with a copy promptly provided to the Agent on behalf of the Lenders) and remains undischarged or unsatisfied for a period ending on the earlier of (a) 25 days from such judgment, or (b) the 5th day prior to the date on which such judgment becomes executory; or

 

  14.1.7 If property of any member of the VL Group having a total value in excess of $25,000,000 is the object of one or more seizures or takings of possession or other legal proceedings by creditors, and is not released within 15 days in respect of movable property or 45 days in respect of immovable property, and in any event, not less than 10 days prior to the date fixed for any sale of such property; or

 

  14.1.8 If any statement, attestation, financial statement, report, data, representation or warranty which was given by, for the account of or in the name of the Borrower or any other member of the VL Group (other than an Immaterial Subsidiary) to the Lenders, with respect to this Agreement or any Security Documents, is revealed at any time to be misleading or incorrect in any material respect when it was made, and if any event or circumstance which makes such statement, attestation, financial statement, report, data, representation or warranty misleading in any material respect is capable of being remedied, such action as may be required to remedy same shall not have been completed within 15 days of the earlier of (a) the Agent notifying the Borrower or, as the case may be, a Guarantor of such breach, or (b) the Borrower notifying the Agent of the Default in accordance with subsection 12.16.3; or

 

  14.1.9 If in the opinion of the Lenders, acting in good faith, there occurs a Material Adverse Change and the situation has not been remedied within 15 days following the earlier of the date on which (a) the Agent gave notice thereof to the Borrower, or (b) the Borrower gave notice to the Agent in accordance with subsection 12.16.3; or

 

  14.1.10 If a Change in Control occurs; or

 

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  14.1.11 If any Guarantee to be provided by any Guarantor (other than an Immaterial Subsidiary) hereunder is or purports to be terminated by notice given under article 2362 of the Quebec Civil Code.

 

  14.2 Remedies

If an Event of Default occurs under subsection 14.1.4, the Loan Obligations shall immediately become due and payable, without presentation, demand, protest or other notice of any nature, to which the Borrower hereby expressly renounces. If any other Event of Default occurs, the Agent may, at its option, and shall if required to do so by the Required Lenders-Acceleration, declare immediately due and payable, without presentation, demand, protest or other notice of any nature, to which the Borrower hereby expressly renounces, notwithstanding any provision to the contrary effect in this Agreement or in the Security Documents:

 

  14.2.1 the entire amount of the Loan Obligations, including the amount corresponding to the principal amount of the BA Advances then outstanding, in principal and interest, notwithstanding the fact that one or more of the holders of the Bankers’ Acceptances issued pursuant to the provisions hereof have not demanded payment in whole or in part or have demanded only partial payment from the Lenders, and the amount of the Derivative Obligations. The Borrower shall not have the right to invoke against the Lenders any defence or right of action, indemnification or compensation of any nature or kind whatsoever that the Borrower may at any time have or have had with respect to any holder of one or more of the Derivative Instruments or Bankers’ Acceptances issued in accordance with the provisions hereof; and

 

  14.2.2 an amount equal to the amount of losses, costs and expenses assumed by the Lenders and referred to in Sections 7.2, 7.4 and 17.13; and

the Credit shall cease and as and from such time shall be cancelled, and the Lenders may exercise all of their rights and recourses under the provisions of this Agreement and of the Security Documents. For greater certainty, from and after the occurrence of any Default or Event of Default, the Lenders shall not be obliged to make any further Advances under the Credit.

 

  14.3 Bankruptcy and Insolvency

If the Borrower files a notice of intention to file a proposal, or files a proposal under the Bankruptcy and Insolvency Act, or if the Borrower obtains the permission of the court to file a Plan of Arrangement under the Companies’ Creditors Arrangements Act, and if a stay of proceedings is obtained or ordered under the provisions of either of those statutes, without prejudice to the Lenders’ rights to contest such stay of proceedings, subject to Applicable Law, the Borrower covenants and agrees to continue to pay interest on all amounts due to the Lenders in accordance with the provisions hereof. In this regard, the Borrower

 

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acknowledges that permitting the Borrower to continue to use the proceeds of the Loan Obligations constitutes valuable consideration provided after the filing of any such proceeding in the same way that permitting the Borrower to use leased premises constitutes such valuable consideration.

 

  14.4 Notice

Except where otherwise expressly provided herein, no notice or demand of any nature is required to be given to the Borrower by the Agent in order to put the Borrower in default, the latter being in default by the simple lapse of time granted to execute an obligation or by the simple occurrence of a Default.

 

  14.5 Costs

If an Event of Default occurs, and within the limits contemplated by Section 12.14, the Agent may impute to the account of the Lenders and pay to other persons reasonable sums for services rendered with respect to the realization, recovery, sale, transfer, delivery and obtaining of payment with respect to the Security and may deduct the amount of such costs and payments from the proceeds which it receives therefrom. The balance of such proceeds may be held by the Agent in the place of such Security and, when the Agent decides it is opportune, may be applied to the account of the part of the indebtedness of the Borrower to the Lenders which the Agent deems preferable, without prejudice to the rights of the Lenders against the Borrower for any loss of profit.

 

  14.6 Relations with the Borrower

The Agent may grant delays, take security or renounce thereto, accept compromises, grant acquittances and releases and otherwise negotiate with the Borrower as it deems advisable without in any way diminishing the liability of the Borrower or prejudicing the rights of the Lenders with respect to the Security.

 

  14.7 Application of Proceeds

Subject to the provisions hereof (including those requiring the payment of the Secured Obligations prior to repayment of Loan Obligations under the Unsecured Facility once any Loan Obligations under the Unsecured Facility have been transferred into the Revolving Facility up to the Threshold Amount in accordance with the provisions of Sections 4.10 and 6.13), and as among the Lenders, subject in particular to the provisions of Section 18.8, the Agent may apply the proceeds of realization of the property contemplated by the Security Documents and of any credit or compensating balance in reduction of the part of the Loan Obligations (principal, interest or accessories) which the Agent judges appropriate. If any Revolving Facility Lender is owed money by the Borrower on account of Derivative Obligations, the claim of such Lender shall rank pari passu with the other amounts comprising the Secured Obligations.

 

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15. JUDGMENT CURRENCY

 

  15.1 Rules of Conversion

If for the purpose of obtaining judgment in any court or for any other purpose hereunder, it is necessary to convert an amount due, advanced or to be advanced hereunder from the currency in which it is due (the “ First Currency ”) into another currency (the “ Second Currency ”) the rate of exchange used shall be that at which, in accordance with normal banking procedures, the Agent could purchase, in the Canadian money market or the Canadian exchange market, as the case may be, the First Currency with the Second Currency on the date on which the judgment is rendered, the sum is payable or advanced or to be advanced, as the case may be. The Borrower agrees that its obligations in respect of any First Currency due from it to the Lenders in accordance with the provisions hereof shall, notwithstanding any judgment rendered or payment made in the Second Currency, be discharged by a payment made to the Agent on account thereof in the Second Currency only to the extent that, on the Business Day following receipt of such payment in the Second Currency, the Agent or the Finnvera Facility Agent, as applicable, may, in accordance with normal banking procedures, purchase on the Canadian money market or the Canadian foreign exchange market, as the case may be, the First Currency with the amount of the Second Currency so paid or which a judgment rendered payable (the rate applicable to such purchase being in this Section called the “ FX Rate ”); and if the amount of the First Currency which may be so purchased is less than the amount originally due in the First Currency, the Borrower agrees as a separate and independent obligation and notwithstanding any such payment or judgment to indemnify the Lenders against such deficiency.

 

  15.2 Determination of an Equivalent Currency

If, in their discretion, the Lenders, the Agent or the Finnvera Facility Agent choose or, pursuant to the terms of this Agreement, are obliged to choose the equivalent in Canadian Dollars of any securities or amounts expressed in US Dollars or the equivalent in US Dollars of any securities or amounts expressed in Canadian Dollars, the Agent or the Finnvera Facility Agent, as the case may be, in accordance with the conversion rules as stipulated in Section 15.1

 

  15.2.1 on the date indicated in the Notice of Borrowing as the date of a request for an Advance; and

 

  15.2.2 at any other time which in the opinion of the Lenders is desirable;

may, using the FX Rate, at such time on such date, determine the equivalent in Canadian Dollars or in US Dollars, as the case may be (the “ Equivalent Amount ”), of any security or amount expressed in the other currency pursuant to the terms hereof. Immediately following such determination, the Agent or the Finnvera Facility Agent, as applicable, shall inform the Borrower of the conclusion which the Lenders have reached.

 

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16. ASSIGNMENT

None of the provisions of Article 16 shall apply to the Finnvera Facility Lenders or the Finnvera Term Facility, in respect of which the relevant provisions are set out in Section 10 of Schedule “P”. However, the Finnvera Facility Agent shall advise the Agent of any Assignments under the Finnvera Term Facility and shall also provide a list of up-to-date Commitments of each Finnvera Facility Lender whenever any changes to such Commitments occur.

 

  16.1 Assignment by the Borrower

The rights of the Borrower under the provisions hereof are purely personal and may not be transferred or assigned, and the Borrower may not transfer or assign any of its obligations, such assignment being null and of no effect opposite the Lenders and rendering any balance outstanding of the amounts referred to in Section 14.2 immediately due and payable at the option of the Lenders and further releasing the Lenders from any obligation to make any further Advances under the provisions hereof.

 

  16.2 Assignments and Transfers by the Lenders

 

  16.2.1 No Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an Eligible Assignee in accordance with the provisions of subsection 16.2.2, or (ii) by way of a sale of a participation in accordance with the provisions of Section 16.5 (and any other attempted assignment or transfer by any party hereto shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in Section 16.5 and, to the extent expressly contemplated hereby, the Related Parties of each of the Agent and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.

 

  16.2.2 Each Lender may assign or transfer to an Eligible Assignee in accordance with this Article 16 up to 100% of its rights, benefits and obligations hereunder; provided that:

 

  (a)

except (i) if an Event of Default has occurred and has not been waived, or (ii) in the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment and the Loan Obligations at the time owing to it, or (iii) in the case of an assignment to a Lender or an Affiliate of a Lender or an Approved Fund with respect to a Lender, the aggregate amount of the Commitment being assigned (which for this purpose includes Loan Obligations outstanding thereunder) or, if the applicable Commitment is not then in effect, the principal outstanding balance of the Loan Obligations of the assigning Lender subject

 

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  to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Agent or, if “Trade Date” is specified in the Assignment and Assumption, as of the Trade Date) shall not be less than $5,000,000, in the case of any assignment in respect of the Revolving Facility or the Unsecured Facility, unless each of the Agent and, so long as no Event of Default has occurred and has not been waived, the Borrower, otherwise consent to a lower amount (each such consent not to be unreasonably withheld or delayed);

 

  (b) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement with respect to the Loan Obligations or the Commitment assigned. Prior to the occurrence of an Event of Default which has not been waived, no Lender may assign all or any portion of its rights and obligations under the Revolving Facility or the Unsecured Facility on a non-pro rata basis, and no Assignee may acquire any rights and obligations under the Revolving Facility or the Unsecured Facility on a non-pro rata basis as between the two Facilities;

 

  (c) any assignment of a Commitment under (i) the Revolving Facility, must be approved by the Issuing Lender and the Swing Line Lender, and (ii) the Unsecured Facility, must be approved by the Issuing Lender. Any such approvals are not to be unreasonably withheld or delayed;

 

  (d) any assignment must be approved by the Agent (such approval not to be unreasonably withheld or delayed).

 

  (e) any assignment must be approved by the Borrower (such approval not to be unreasonably withheld or delayed if the Eligible Assignee is funding its Commitment out of the United States of America or Canada, but may be withheld in the Borrower’s discretion if the Commitments are being funded from elsewhere) unless (i) the proposed Assignee is itself already a Lender with the same type of Commitment or (ii) a Default has occurred and is continuing or (iii) an Event of Default has occurred and not been waived; and

 

  (f) the parties to each Assignment shall execute and deliver to the Agent an Assignment and Assumption Agreement, together with a processing and recordation fee in an amount of $3,500, and the Eligible Assignee, if it is not a Lender, shall deliver to the Agent an Administrative Questionnaire.

 

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Subject to acceptance and recording thereof by the Agent pursuant to Section 16.3, from and after the effective date specified in each Assignment and Assumption, the Eligible Assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be entitled to the benefits of Article 7 and Section 17.13 with respect to facts and circumstances occurring prior to the effective date of such Assignment. Any Assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this paragraph shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with Section 16.5. Any payment by an Assignee to an assigning Lender in connection with an Assignment shall not be or be deemed to be a repayment by the Borrower or a new Advance to the Borrower.

 

  16.3 Register

The Agent shall maintain at one of its offices in Toronto, Ontario or Montreal, Quebec, a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts of the Loan Obligations owing to, each Lender pursuant to the terms hereof from time to time (the “ Register ”). The entries in the Register shall be conclusive, absent manifest error, and the Borrower, the Agent and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Borrower and any Lender, at any reasonable time and from time to time upon reasonable prior notice.

 

  16.4 Electronic Execution of Assignments

The words “execution,” “signed,” “signature,” and words of like import in any Assignment and Assumption Agreement shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any Applicable Law, including the Electronic Documents (Banks and Bank Holding Companies) Regulations under the Bank Act (Canada), Parts 2 and 3 of the Personal Information Protection and Electronic Documents Act (Canada), An Act to Establish a Legal Framework for Information Technology (Quebec), the Electronic Commerce Act, 2000 (Ontario) and other similar federal or provincial laws based on the Uniform Electronic Commerce Act of the Uniform Law Conference of Canada or its Uniform Electronic Evidence Act, as the case may be.

 

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  16.5 Participations

Any Lender may at any time, without the consent of, or notice to, the Borrower or the Agent, sell participations to any Person (other than a natural person, a member of the VL Group or any Affiliate of a member of the VL Group) (each, a “ Participant ”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loan Obligations owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrower, the Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Any payment by a Participant to a Lender in connection with a sale of a participation shall not be or be deemed to be a repayment by the Borrower or a new Advance to the Borrower.

Subject to Section 16.6, the Borrower agrees that each Participant shall be entitled to the benefits of Article 7 to the same extent as if it were a Lender and had acquired its interest by Assignment pursuant to subsection 16.2.2. To the extent permitted by Applicable Law, each Participant also shall be entitled to the benefits of Section 8.11 as though it were a Lender, provided such Participant agrees to be subject to Section 18.8 as though it were a Lender.

 

  16.6 Limitations Upon Participant Rights

A Participant shall not be entitled to receive any greater payment under Sections 7.2 and 7.3 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with the Borrower’s prior written consent. A Participant that would be a Foreign Lender if it were a Lender shall not be entitled to the benefits of Section 7.3 unless the Borrower is notified of the participation sold to such Participant and such Participant agrees, for the benefit of the Borrower, to comply with subsection 7.3.5 as though it were a Lender.

 

  16.7 Certain Pledges and Special Provisions

16.7.1 General . Any Lender may, at any time, pledge, hypothecate or grant a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, but no such pledge, hypothec or security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or security holder for such Lender as a party hereto.

16.7.2 Federal Reserve Bank . Notwithstanding any provision of this Agreement to the contrary, any Lender governed by the Applicable Law of the United States of America may at any time assign all or a portion of its rights under this Agreement and all other documents ancillary hereto (including the other Loan Documents) to a Federal Reserve Bank in order to secure its obligations to such Federal Reserve Bank. No such assignment shall relieve the assigning Lender from its obligations under this Agreement or such other documents.

 

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16.7.3 Promissory Notes . Upon the request of any Lender, the Borrower will execute and deliver one or more promissory notes in form and substance acceptable to such Lender, acting reasonably, evidencing the Commitment under this Agreement and any Loan Obligations hereunder.

 

17. MISCELLANEOUS

 

  17.1 Notices

Except where otherwise specified herein, all notices, requests, demands or other communications between the parties hereto shall be in writing and shall be deemed to have been duly given or made to the party to whom such notice, request, demand or other communication is given or permitted to be given or made hereunder, when delivered to the party (by certified mail, postage prepaid, or by facsimile or by physical delivery) to the address of such party and to the attention indicated under the signature of such party or to any other address which the parties hereto may subsequently communicate to each other in writing. Notwithstanding the foregoing, any notice shall be deemed to have been received by the party to whom it is addressed (a) upon receipt if sent by mail and (b) if telecopied before 3:00 p.m. on a Business Day, on that day and if telecopied after 3:00 p.m. on a Business Day, on the Business Day next following the date of transmission. If normal postal or telecopier service is interrupted by strike, work slow-down, fortuitous event or other cause, the party sending the notice shall use such services which have not been interrupted or shall deliver such notice by messenger in order to ensure its prompt receipt by the other party.

 

  17.2 Amendment and Waiver

The rights and recourses of the Lenders under this Agreement and the Security Documents are cumulative and do not exclude any other rights and recourses which the Lenders might have, and no omission or delay on the part of the Lenders in the exercise of any right shall have the effect of operating as a waiver of such right, and the partial or sole exercise of a right or power will not prevent the Lenders from exercising thereafter any other right or power. The provisions of this Agreement may only be amended or waived by an instrument in writing (and not orally) in each case signed by the Agent with the approval of the requisite majority of Lenders.

 

  17.3 Determinations Final

In the absence of any manifest error, any determinations to be made by the Lenders in accordance with the provisions hereof, when made, are final and irrevocable for all parties.

 

  17.4 Entire Agreement

The entire agreement between the parties is expressed herein, and no variation or modification of its terms shall be valid unless expressed in writing and signed by the parties. All previous agreements, promises, proposals, representations, understandings and

 

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negotiations between the parties hereto which relate in any way to the subject matter of this Agreement are hereby deemed to be null other than those contained in a letter by the Borrower to the Agent dated December 21, 2005 and confirmed by the Agent on March 1, 2006, and a letter by the Borrower to the Agent dated February 28, 2006 and confirmed by the Agent on the same date.

 

  17.5 Indemnification and Compensation

In addition to the other rights now or hereafter conferred by law and those described in subsection 6.6.2 and Section 8.12, and without limiting such rights, if a Default or Event of Default should occur, each Lender, the Finnvera Facility Agent and the Agent is hereby authorized by the Borrower, at any time and from time to time, subject to the obligation to give notice to the Borrower subsequently and within a reasonable delay, to indemnify, compensate, use and allocate any deposit (general or special, term or demand, including, without limitation, any debt evidenced by certificates of deposit, whether or not matured) and any other debt at any time held or due by the Lenders to the Borrower or to its credit or its account, with respect to and on account of any obligation and indebtedness of the Borrower to the Lenders in accordance with the provisions hereof or the Security Documents, including, without limitation, the accounts of any nature or kind which flow from or relate to this Agreement or the Security Documents, whether or not the Agent has made demand under the terms hereof or has declared the amounts referred to in Section 14.2 as payable in accordance with the provisions of that Section and even if such obligation and Debt or either of them is a future or unmatured Debt.

 

  17.6 Benefit of Agreement

This Agreement shall be binding upon and enure to the benefit of each party hereto and its successors and permitted assigns.

 

  17.7 Counterparts

This Agreement may be signed in any number of counterparts, each of which shall be deemed to constitute an original, but all of the separate counterparts shall constitute one single document.

 

  17.8 Applicable Law

This Agreement, its interpretation and its application shall be governed by the Applicable Law of the Province of Quebec and the Applicable Law of Canada applicable therein.

 

  17.9 Severability

Each provision of this Agreement is separate and distinct from the others, such that any decision of a court or tribunal to the effect that any provision of this Agreement is null or unenforceable shall in no way affect the validity of the other provisions of this Agreement or the enforceability thereof. Any provision of this agreement which is prohibited or

 

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unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. To the extent permitted by Applicable Law, the Borrower hereby waives any provision of any Applicable Laws which renders any provision hereof prohibited or unenforceable in any respect.

 

  17.10 Further Assurances

The Borrower covenants and agrees on its own behalf and on behalf of each member of the VL Group that, at the request of the Agent or the Finnvera Facility Agent, the Borrower and each other member of the VL Group will at any time and from time to time execute and deliver such further and other documents and instruments and do all acts and things as the Agent or the Finnvera Facility Agent in its absolute discretion requires in order to evidence the indebtedness of the Borrower under this Agreement or otherwise, including under any Derivative Instruments, and to confirm and perfect, and maintain perfection of, the Security.

 

  17.11 Good Faith and Fair Consideration

Each party hereto acknowledges and declares that it has entered into this Agreement freely and of its own will. In particular, each party hereto acknowledges that this Agreement was freely negotiated by the Borrower and the Lenders in good faith, that this Agreement does not constitute a contract of adhesion, that there was no exploitation of the Borrower by the Lenders, and that there is no serious disproportion between the consideration provided by the Lenders and that provided by the Borrower.

 

  17.12 Responsibility of the Lenders

Each Lender shall be solely responsible for the performance of its own obligations hereunder. Accordingly, no Lender is in any way jointly and severally or solidarily responsible for the performance of the obligations of any other Lender.

 

  17.13 Indemnity

The Borrower agrees to indemnify and defend each of the Agent, the Finnvera Facility Agent, each Lender, and their respective directors, officers, agents and employees from, and hold each of them harmless against, any and all losses, liabilities, claims, damages or expenses of any kind which at any time or from time to time may be asserted against or incurred or paid by any of them for or in connection with, arising directly or indirectly from or relating to: (i) the participation of the Agent, the Finnvera Facility Agent or of any of the Lenders in the transactions contemplated by this Agreement, (ii) any Advance or the use or proposed use of the proceeds therefrom (including any refusal by the Issuing Lender to honour a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) the role of the Agent, the Finnvera Facility Agent or the Lenders in any investigation, litigation or other proceeding brought or threatened relating to the Credit, (iv) the presence

 

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on or under or the release or migration from any property or into the environment of any hazardous material, and/or (v) the compliance with or enforcement of any of their rights or obligations hereunder, including without limitation:

 

  17.13.1 the fees and disbursements of counsel;

 

  17.13.2 the costs of defending, counterclaiming or claiming over against third parties in respect of any action or matter and any cost, liability or damage arising out of any settlement; and

 

  17.13.3 other than losses, liabilities, claims, damages or expenses incurred by reason of the gross negligence or wilful misconduct of the indemnified party, as determined by a final judgment of a court of competent jurisdiction.

 

  17.14 Language

The parties acknowledge that they have required that the present agreement, as well as all documents, notices and legal proceedings entered into, given or instituted pursuant hereto or relating directly or indirectly hereto be drawn up in English. Les parties reconnaissent avoir exigé la rédaction en anglais de la présente convention ainsi que de tous documents exécutés, avis donnés et procédures judiciaires intentées, directement ou indirectement, relativement ou à la suite de la présente convention.

 

  17.15 Anti-Terrorism Legislation

Each Lender hereby notifies the Borrower and each member of the VL Group that pursuant to the requirements of the USA Patriot Act, Title III of Pub. L. 107-56 (signed into law October 26, 2001, with respect to the USA) and the Proceeds of Crime Act (with respect to Canada) (in this Section, the “Acts”), it is required to obtain, verify and record information that identifies the Borrower and the other members of the VL Group, which information includes the names and addresses of the Borrower and the other members of the VL Group and other information that will allow such Lender to identify the Borrower and the other members of the VL Group in accordance with the Acts.

 

18. THE AGENT AND THE LENDERS

 

  18.1 Authorization of Agent

 

  18.1.1

Each Lender hereby irrevocably appoints and authorizes the Agent to act for all purposes as its agent hereunder and under the Security Documents with such powers as are expressly delegated to the Agent by the terms of this Agreement, together with such other powers as are reasonably incidental thereto and undertakes not to take any action on its own. Notwithstanding the provisions of the Civil Code of Quebec relating to contracts generally and to mandate, the Agent shall have no duties or

 

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  responsibilities except those expressly set forth in this Agreement. As to any matters not expressly provided for by this Agreement, the Agent shall act hereunder or in connection herewith in accordance with the instructions of the Lenders in accordance with the provisions of this Article 18, but, in the absence of any such instructions, the Agent may (but shall not be obliged to) act as it shall deem fit in the best interests of the Lenders, and any such instructions and any action taken by the Agent in accordance herewith shall be binding upon each Lender. The Agent shall not, by reason of this Agreement, be deemed to be a trustee for the benefit of any Lender, the Borrower or any other Person. Neither the Agent nor any of its directors, officers, employees or agents shall be responsible to the Lenders for any recitals, statements, representations or warranties contained in this Agreement or in any certificate or other document referred to, or provided for in, or received by any of them under, this Agreement, for the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement, or any other document referred to or provided for herein or any collateral provided for hereby or for any failure by the Borrower to perform its obligations hereunder. The Agent may employ agents and attorneys-in-fact and shall not be responsible for the negligence or misconduct of any such agents or attorneys-in-fact selected by it with reasonable care. Neither the Agent nor any of its directors, officers, employees or agents shall be responsible for any action taken or omitted to be taken by it or them under or in connection herewith, except for its or their own gross negligence or wilful misconduct.

 

  18.1.2

For the purposes of creating a solidarité active between each Lender, taken individually, and the Agent in accordance with Article 1541 of the Civil Code of Québec , the Borrower and each Lender (on its own behalf) acknowledge and agree with the Agent that such Lender and the Agent are hereby conferred the legal status of solidary creditors of the Borrower and the Guarantors in respect of all amounts, liabilities and other obligations, present and future, owed by the Borrower to the Agent and such Lender hereunder and under Derivative Instruments (collectively, the “ Lender Solidary Claim ”). Accordingly, but subject (for the avoidance of doubt) to Article 1542 of the Civil Code of Québec , the Borrower and each of the Guarantors is irrevocably bound towards the Agent and each Lender in respect of the entire Lender Solidary Claim of the Agent and such Lender, such that the Agent and each Lender shall at all times have a valid and effective right of action for the entire Lender Solidary Claim of the Agent and such Lender and the right to give a full acquittance for it. Thus, without limiting the generality of the foregoing, the Agent, as solidary creditor for itself and each Lender, shall at all times have a valid and effective right of action in respect of all amounts, liabilities and other obligations owed by the Borrower and the

 

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  Guarantors to the Agent and the Lenders or any of them hereunder and under Derivative Instruments and the right to give full acquittance for same. The parties further agree and acknowledge that the Security Documents described in Section 9.1 shall be granted to the Agent, for its own benefit and for the benefit of the Lenders, as solidary creditor as hereinabove set forth.

 

  18.2 Agent’s Responsibility

 

  18.2.1 The Agent shall be entitled to rely upon any certificate, notice or other document (including any cable, telegram or telecopy) believed by it to be genuine and correct and to have been signed or sent by or on behalf of the proper person or persons, and upon advice and statements of legal advisers, independent accountants and other experts selected by the Agent. The Agent may deem and treat each Lender as the holder of the Commitment in the Loan Obligations made by such Lender for all purposes hereof unless and until an Assignment has been completed in accordance with Section 16.2.

 

  18.2.2 The Agent shall not be deemed to have knowledge of the occurrence of a Default or Event of Default unless the Agent has received notice from a Lender or the Borrower describing such a Default or Event of Default and stating that such notice is a “Notice of Default”. In the event that the Agent receives such a notice of the occurrence of a Default or Event of Default or otherwise becomes aware that a Default or Event of Default has occurred, the Agent shall promptly give notice thereof to the Lenders. The Agent shall take such action with respect to such Default or Event of Default as shall be reasonably directed by the Lenders in accordance with the provisions of this Article 18 provided that, unless and until the Agent shall have received such directions, the Agent may (but shall not be obliged to) take such action, or refrain from taking such action, with respect to such a Default or Event of Default as it shall deem advisable in the best interest of the Lenders.

 

  18.2.3 The Agent shall have no responsibility, (a) to the Borrower on account of the failure of any Lender to perform its obligations hereunder, or (b) to any Lender on account of the failure of the Borrower to perform its obligations hereunder.

 

  18.2.4 Each Lender severally represents and warrants to the Agent that it has made its own independent investigation of the financial condition and affairs of the Borrower in connection with the making and continuation of its Commitment in the Loan Obligations hereunder and has not relied on any information provided to such Lender by the Agent in connection herewith, and each Lender represents and warrants to the Agent that it shall continue to make its own independent appraisal of the creditworthiness of the Borrower while the Loan Obligations are outstanding or the Lenders have any obligations hereunder.

 

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  18.3 Rights of Agent as Lender

With respect to its Commitment in the Loan Obligations, the Agent in its capacity as a Lender shall have the same rights and powers hereunder as any other Lender and may exercise the same as though it were not acting as the Agent and the term “Lender” shall, unless the context otherwise indicates, include the Agent in its capacity as a Lender. The Agent may (without having to account therefor to any Lender) accept deposits from, lend money to and generally engage in any kind of banking or other business with the Borrower as if it were not acting as the Agent and may accept fees and other consideration from the Borrower for customary services in connection with this Agreement and the Loan Obligations and otherwise without having to account for the same to the Lenders.

 

  18.4 Indemnity

Each Lender agrees to indemnify the Agent, to the extent not otherwise reimbursed by the Borrower, rateably in accordance with its respective Commitments, for any and all liabilities, obligations, losses, damages, penalties, actions, judgements, suits, costs, expenses or disbursements of any kind and nature whatsoever which may be imposed on, incurred by or asserted against, the Agent in any way relating to or arising out of this Agreement, the Security Documents or any other documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby (excluding, unless a Default or Event of Default is apprehended or has occurred and is continuing, normal administrative costs and expenses incidental to the performance of its agency duties hereunder) or the enforcement of any of the terms hereof or of any such other documents, provided that no Lender shall be liable for any of the foregoing to the extent they arise from the Agent’s gross negligence or wilful misconduct.

 

  18.5 Notice by Agent to Lenders

As soon as practicable after its receipt thereof, the Agent will forward to each Lender a copy of each report, notice or other document required by this Agreement to be delivered to the Agent for such Lender.

 

  18.6 Protection of Agent

 

  18.6.1

The Agent shall not be required to keep itself informed as to the performance or observance by the Borrower of this Agreement or any other document referred to or provided for herein or therein or to inspect the properties or books of the Borrower. Except (in the case of the Agent) for notices, reports and other documents and information expressly required to be furnished to the Lenders by the Agent hereunder, the Agent shall have no duty or responsibility to provide any Lender with any credit or other information concerning the affairs or

 

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  financial condition of the Borrower which may come to the attention of the Agent, except where provided to the Agent for the Lenders, provided that such information does not confer any advantage to the Agent as a Lender over the other Lenders. Nothing in this Agreement shall oblige the Agent to disclose any information relating to the Borrower if such disclosure would or might, in the opinion of the Agent, constitute a breach of any Applicable Laws or duty of secrecy or confidence.

 

  18.6.2 Unless the Agent shall have been notified in writing or by telegraph or telecopier by any Lender prior to the date of an Advance requested hereunder that such Lender does not intend to make available to the Agent such Lender’s proportionate share of such Advance, based on its Commitment, the Agent may assume that such Lender has made such Lender’s Commitment in such Advance available to the Agent on the date of such Advance and the Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such corresponding amount is not in fact made available to the Agent by such Lender, the Agent shall be entitled to recover such amount (together with interest thereon at the rate determined by the Agent as being its cost of funds in the circumstances) on demand from such Lender or, if such Lender fails to reimburse the Agent for such amount on demand, from the Borrower.

 

  18.6.3 Unless the Agent shall have been notified in writing or by telegraph or telecopier by the Borrower prior to the date on which any payment is due hereunder that the Borrower does not intend to make such payment, the Agent may assume that the Borrower has made such payment when due and the Agent may, in reliance upon such assumption, make available to each Lender on such payment date an amount equal to such Lender’s pro rata share of such assumed payment. If it is established that the Borrower has not in fact made such payment to the Agent, each Lender shall forthwith on demand repay to the Agent the amount made available to such Lender (together with interest at the rate determined by the Agent as being its cost of funds in the circumstances).

 

  18.7 Notice by Lenders to Agent

Each Lender shall endeavour to use its best efforts to notify the Agent of the occurrence of any Default or Event of Default forthwith upon becoming aware of such event, but no Lender shall be liable if it fails to give such notice to the Agent.

 

  18.8 Sharing Among the Lenders

Following the occurrence of a Default or Event of Default prior to the Conversion Date-Total, once the Revolving Facility has been drawn up to the Threshold Amount (including as a result of the Swing Line Commitment being reduced to nil, either by Advances or by

 

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transfers of Loan Obligations made in accordance with Sections 4.10 and 6.13), all of the Secured Obligations must be repaid before the repayment of any Loan Obligations under the Unsecured Facility. Consequently, if there are Loan Obligations outstanding under the Unsecured Facility at the relevant time after completing any such transfers, any losses incurred shall be borne by the Unsecured Facility Lenders up to the full amount of the Loan Obligations then outstanding under the Unsecured Facility before any such losses are shared by the Revolving Facility Lenders or the Finnvera Facility Lenders.

Accordingly, each Revolving Facility Lender and each Finnvera Facility Lender agrees as amongst themselves that except as otherwise provided for by the provisions of this Agreement (including the transfers required by the first paragraph of this Section 18.8), all amounts received by the Agents, in their capacity as agents of the Revolving Facility Lenders or the Finnvera Facility Lenders pursuant to this Agreement or any other document contemplated hereby (whether received by voluntary payment, by the exercise of the right of set-off or compensation or by counterclaim, cross-claim, separate action or as proceeds of realization of any security, other than agency fees), and all amounts received by any such Lender in relation to this Agreement, in each case following a Default (which is not remedied subsequent to such receipt) or an Event of Default (which is not waived subsequent to such receipt), shall be shared by each such Lender pro rata , in accordance with its respective Secured Applicable Percentage, and each such Lender undertakes to do all such things as may be reasonably required to give full effect to this Section 18.8. If any amount which is so shared is later recovered from the Lender who originally received it, each other Revolving Facility Lender and each Finnvera Facility Lender shall restore its proportionate share of such amount to such Lender, without interest.

Each Unsecured Facility Lender agrees as amongst themselves that except as otherwise provided for by the provisions of this Agreement (including the principle that all of the Secured Obligations must be repaid before the repayment of Loan Obligations under the Unsecured Facility after the transfers required by the first paragraph of this Section 18.8), all amounts received by the Agent, in its capacity as agent of the Unsecured Facility Lenders pursuant to this Agreement or any other document contemplated hereby (whether received by voluntary payment, by the exercise of the right of set-off or compensation or by counterclaim, cross-claim, separate action or as proceeds of realization of any security, other than agency fees), and all amounts received by any Unsecured Facility Lender in relation to this Agreement, in each case following a Default (which is not remedied subsequent to such receipt) or an Event of Default (which is not waived subsequent to such receipt), shall be shared by each such Lender pro rata , in accordance with its respective Unsecured Applicable Percentage, and each such Lender undertakes to do all such things as may be reasonably required to give full effect to this Section 18.8. If any amount which is so shared is later recovered from the Lender who originally received it, each other Unsecured Facility Lender shall restore its proportionate share of such amount to such Lender, without interest.

As a necessary consequence of the foregoing, if the amounts realized by the Agents are not sufficient to repay the aggregate amount of the Secured Obligations, each Revolving Facility Lender and Finnvera Facility Lender shall share, in a percentage equal to its Secured Applicable Percentage, any losses incurred as a result of any Default or Event of Default by

 

103.


the Borrower, and shall pay to the Agent, within two (2) Business Days following a request by the Agent, any amount required to ensure that such Lender bears its pro rata share of such losses, if any, including any amounts required to be paid to any Lender in respect of any Bankers’ Acceptances and, for greater certainty, amounts forming part of the Swing Line Loan (which forms part of the Revolving Facility).

If the amounts realized by the Agents are sufficient to repay the aggregate amount of the Secured Obligations after the transfers required by the first paragraph of this Section 18.8, but are not sufficient to repay the Loan Obligations under the Unsecured Facility, each Unsecured Facility Lender shall share, in a percentage equal to its Unsecured Applicable Percentage, any losses incurred as a result of any Default or Event of Default by the Borrower, and shall pay to the Agent, within two (2) Business Days following a request by the Agent, any amount required to ensure that such Lender bears its pro rata share of such losses, if any, including any amounts required to be paid to any Lender in respect of any Bankers’ Acceptances.

Such obligations to share losses shall be absolute and unconditional and shall not be affected by any circumstance, including, without limitation, (1) any set-off, compensation, counterclaim, recoupment, defence or other right which such Lender may have against the Agents, the Borrower or any other Person for any reason whatsoever; (2) the occurrence or continuance of any Default or Event of Default; (3) any adverse change in the condition (financial or otherwise) of the Borrower or any other Person; (4) any breach of this Agreement by the Borrower or any other Person; or (5) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing. If any Lender does not make available the amount required hereunder, the Agent shall be entitled to recover such amount on demand from such Lender, together with interest thereon at the Prime Rate from the date of non-payment until such amount is paid in full.

 

  18.9 Derivative Obligations

 

  18.9.1 The Derivative Obligations shall be secured by the Security provided that the related Derivative Instruments:

 

  (a) are governed by an ISDA Master Agreement or other form of agreement generally accepted in the relevant market;

 

  (b) provide that bankruptcy or insolvency constitutes an event of default thereunder; and

 

  (c) provide that for the purposes of Section 6(e) of the 1992 ISDA Master Agreement or the 2002 ISDA Master Agreement, the methods of calculation set out in the definition of “Hedging Exposure” shall apply.

 

  18.9.2

Notwithstanding the rights of the Revolving Facility Lenders to benefit from the Security in respect of Derivative Obligations, all decisions

 

104.


  concerning the Security and the enforcement thereof shall be made by the Lenders, the Majority Lenders or the Required Lenders-Acceleration, as the case may be, in accordance with the provisions of this Agreement, excluding the amount owed to any Lender in respect of Derivative Obligations. No Lender holding Derivative Obligations from time to time shall have any additional right to influence the Security or the enforcement thereof as a result of holding Derivative Obligations as long as this Agreement remains in force. No such Lender shall be able to enforce the Security unless the Lenders are at the same time enforcing the Security for the Loan Obligations. However, the Derivative Obligations shall continue to be supported by the Security notwithstanding the termination of this Agreement by reason of payment in full and termination of the Credit, or for any other reason, and all Derivative Obligations owed to any Revolving Facility Lender (or to a Person that was a Revolving Facility Lender at the time the Derivative Obligation in question was contracted) shall continue to be supported by the Security after such Lender ceases to be an Agent or a Lender or to have an Affiliate which is an Agent or a Lender. After the termination of this Agreement, each holder of Derivative Obligations shall be entitled, in its sole discretion, to make decisions concerning the Security.

 

  18.9.3 Each Lender shall confirm to the Agent the details of each Derivative Instrument executed by it by or for the benefit of the Borrower, including the Hedging Exposure thereunder, within a reasonable period following request by the Agent, if any such request is made.

 

  18.9.4 Each Lender shall confirm to the Agent and to the Borrower, upon request, quarterly on or about the last day of each financial quarter of each financial year of the Borrower, the Hedging Exposure under Derivative Instruments to which it is a party, calculated on a net as well as on a gross basis where several Derivative Instruments are governed by the same Master Agreement. The Agent shall then confirm to each Lender the total amount of the Hedging Exposure under Derivative Obligations with each Lender.

 

  18.10 Procedure with respect to Advances

Subject to the provisions of this Agreement, upon receipt of a Notice of Borrowing from the Borrower, the Agent shall, without delay, advise each Lender of the receipt of such notice, of the date of such Advance, of its proportionate share of the amount of each Advance and of the relevant details of the Agent’s account(s). Each Lender shall disburse its proportionate share of each Advance, taking into account its Commitment, and shall make it available to the Agent (no later than 10:00 A.M.) on the date of the Advance fixed by the Borrower, by depositing its proportionate share of the Advance in the Agent’s account in Canadian Dollars or US Dollars, as the case may be. Once the Borrower has fulfilled the conditions stipulated in this Agreement, the Agent will make such amounts available to the

 

105.


Borrower on the date of the Advance, at the Branch, and, in the absence of other arrangements made in writing between the Agent and the Borrower, by transferring or causing to be transferred an equivalent amount in the case of a direct Advance, and the Available Proceeds (as defined in subsection 6.2.4(d)) in the case of Banker’s Acceptances, in accordance with the instructions of the Borrower which appear in the Notice of Borrowing with respect to each Advance; however, the obligation of the Agent with respect hereto is limited to taking the steps judged commercially reasonable in order to follow such instructions, and once undertaken, such steps shall constitute conclusive evidence that the amounts have been disbursed in accordance with the applicable provisions. The Agent shall not be liable for damages, claims or costs imputed to the Borrower and resulting from the fact that the amount of an Advance did not arrive at its agreed-upon destination.

 

  18.11 Accounts kept by each Lender

Each Lender shall keep in its books, in respect of its Commitment, accounts for the Prime Rate Advances, US Base Rate Advances, Bankers’ Acceptances and other amounts payable by the Borrower under this Agreement. Each Lender shall make appropriate entries showing, as debits, the amount of the Debt of the Borrower to it in respect of the Prime Rate Advances, US Base Rate Advances and BA Advances, as the case may be, the amount of all accrued interest and any other amount due to such Lender pursuant hereto and, as credits, each payment or repayment of principal and interest made in respect of such indebtedness as well as any other amount paid to such Lender pursuant hereto. These accounts shall constitute (in the absence of manifest error or of contradictory entries in the accounts of the Agent referred to in Section 4.4) prima facie evidence of their content against the Borrower.

The accounts which are maintained by the Agent shall constitute, except in the case of manifest error, prima facie proof of the amounts advanced and the Bankers’ Acceptances accepted by each Lender, the interest and other amounts due to them and the payments of principal, interest or others made to the Lenders.

 

  18.12 Binding Determinations

The Agent shall proceed in good faith to make any determination which is required in order to apply this Agreement and, once made, such determination shall be final and binding upon all parties, except in the case of manifest error.

 

  18.13 Amendment of Article 18

The provisions of this Article 18 relating to the rights and obligations of the Lenders and the Agent inter se may be amended or added to, from time to time, by the execution by the Agent and the Lenders of an instrument in writing and such instrument in writing shall validly and effectively amend or add to any or all of the provisions of this Article affecting the Lenders without requiring the execution of such instrument in writing by the Borrower.

 

106.


  18.14 Decisions, Amendments and Waivers of the Lenders

When the Lenders may or must consent to an action or to anything or to accomplish another act in applying this Agreement, the Agent shall request that each Lender give its consent in this regard. Subject to the provisions of Sections 18.15 and 14.2, all decisions taken by the Lenders shall be taken as follows: a) if there are two Lenders, by unanimous consent; b) if there are three or more Lenders, by the Majority Lenders. The Agent shall confirm such consent to each Lender and to the Borrower.

 

 

  18.15 Authorized Waivers, Variations and Omissions

If so authorized in writing by the Lenders in accordance with the provisions of Section 18.14, the Agent, on behalf of the Lenders, may grant waivers, consents, vary the terms of this Agreement and the Security Documents and do or omit to do all acts and things in connection herewith or therewith. Notwithstanding the foregoing, except with the prior written agreement of (a) each of the Lenders with Commitments in the Facility or Facilities being amended (or in respect of which a waiver is requested, each such Lender an “ Affected Lender ”), nothing in Section 18.14 or this Section 18.15 shall authorize (i) any extension of the date for, or decrease in the amount of, any payment of principal, interest or other amounts, (ii) any extension of any maturity date not applicable to all Facilities, or (iii) the release, in whole or in part, of any of the Security Documents (other than the Guarantees) or the Security constituted thereby, except as provided herein with respect to permitted Asset Dispositions (in Section 13.3) or as contemplated in Sections 9.3 and 13.1, and (b) each of the Lenders, nothing in Section 18.14 or this Section 18.15 shall authorize (i) any change (other than an extension) of the date for, increase in the amount of, or change in the currency or mode of calculation or computation of any payment of principal, interest or other amount (including the amount of the Revolving Facility, the Unsecured Facility, any New Facility or the Finnvera Term Facility, except as provided in Sections 2.3 and 2.4), (ii) any extension of any maturity date applicable to all Facilities, (iii) any change in the terms of Article 18, (iv) any change in the manner of making decisions among the Lenders including the definition of Majority Lenders and Required Lenders-Acceleration, (v) the release of the Borrower or any Guarantor, except as provided herein with respect to permitted Asset Dispositions or as contemplated in Sections 9.3 and 13.1, (vi) any change in or any waiver of the conditions precedent provided for in Article 10 or (viii) any amendment to this Section 18.15. Waivers of Events of Default not requiring the unanimous consent of the Lenders may be granted by the Majority Lenders or, for Events of Default requiring a waiver in the circumstances described in (a) above, the Affected Lenders (and not by the Required Lenders-Acceleration).

In addition, no amendment to or waiver of (A) Section 4.2 shall be made without the consent of the Issuing Lenders, (B) Section 4.3 shall be made without the consent of the Swing Line Lender, and (C) the definition of “Defaulting Lender” without the consent of the Agent, the Finnvera Agent, the Issuing Lender and the Swing Line Lender.

 

107.


  18.16 Provisions for the Benefit of Lenders Only - Power of Attorney for Quebec Purposes

Without limiting the powers of the Agent hereunder or under the Security Documents and to the extent applicable, each of the Lenders hereby acknowledges that the Agent (or a collateral agent designated by the Agent) shall, for the purposes of holding any security granted under the hypothecs described in Section 9.1.3 hereof to secure payment of the Debentures, be the holder of an irrevocable power of attorney ( fondé de pouvoir ) (within the meaning of Article 2692 of the Civil Code of Quebec ) for all present and future Lenders and in particular for all present and future holders of the Debentures. Each of the Lenders hereby constitutes, to the extent necessary, the Agent (or such designated collateral agent) as the holder of such irrevocable power of attorney in order to hold security granted under such hypothecs to secure the Debentures. Each Assignee shall be deemed to have confirmed and ratified the constitution of the Agent as the holder of such irrevocable power of attorney by execution of the relevant Transfer Agreement. Notwithstanding the provisions of Section 32 of the An Act respecting the Special Powers of Legal Persons (Quebec), the Borrower, the Guarantors and the Lenders irrevocably agree that the Agent may acquire and be the holder of a Debenture. By executing a Debenture, the issuer of the Debenture shall be deemed to have acknowledged that the Debenture constitutes a title of indebtedness, as such term is used in Article 2692 of the Civil Code of Quebec .

 

  18.17 Defaulting Lenders

 

  18.17.1 Notwithstanding any other provision of this Agreement, if any Lender becomes a Defaulting Lender, then the provisions of this Section 18.17 shall apply until the Agent (or in the case of a Defaulting Lender under the Finnvera Term Facility, the Finnvera Facility Agent), the Borrower, the Issuing Lender and the Swing Line Lender all agree that the Defaulting Lender has remedied all matters that caused it to be a Defaulting Lender.

 

  18.17.2 Any standby fee shall cease to accrue on the Defaulting Lender’s unadvanced portion of any Advance.

 

  18.17.3 The Defaulting Lender shall not be entitled to exercise any right of consent under Sections 18.14 or 18.15 and its Commitment shall not be included in determining whether the Lenders or the Majority Lenders have provided any consent under those Sections. However, the Defaulting Lender shall be entitled to exercise its right of consent in respect of (a) any matter that requires its consent hereunder including, for the avoidance of doubt, any increase in the amount of the Revolving Facility, the Unsecured Facility, any New Facility or the Finnvera Term Facility except as provided in Sections 2.3 and 2.4 or the extension of the Commitment of such Defaulting Lender, and (b) any matter that requires the consent of all Lenders, but only if it would be affected differently than the other Lenders.

 

108.


  18.17.4 The Borrower’s right to receive Advances of the Defaulting Lender’s unadvanced Commitment under the Facilities shall be suspended and the participation of the other Lenders in the Facilities including the Swing Line shall be re-adjusted on a pro rata basis without regard to the unadvanced Commitment of the Defaulting Lender but without increasing the overall Commitments of the other Lenders. If (a) the unadvanced Commitments of the other Lenders would not be sufficient to cover their obligations together with the obligations of the Defaulting Lender under Section 4.2 or 4.3, or (b) an Event of Default has occurred and not been waived, then the Borrower shall repay the Swing Line Loan and shall provide LC Escrowed Funds to the Issuing Lender to secure Letters of Credit to the extent necessary to cover the deficiency.

 

  18.17.5 If the Borrower provides LC Escrowed Funds to the Issuing Lenders to secure Letters of Credit, the Borrower shall not be required to pay LC Fees for the account of the Defaulting Lender in respect of the amount for which it has provided LC Escrowed Funds. If the obligation of the Defaulting Lender regarding Letters of Credit under Section 4.2is borne by the other Lenders as a result of subsection 18.17.4, then the other Lenders shall be entitled to receive any LC Fee that would otherwise have been payable to the Defaulting Lender.

 

  18.17.6 The Agent (or in the case of a Defaulting Lender under the Finnvera Term Facility, the Finnvera Facility Agent) may, without prejudice to the other rights of the Lenders, make adjustments to the payments to a Defaulting Lender under this Agreement as necessary to compensate the other Lenders and the Agent for the Defaulting Lender’s failure to make any payment or fulfill any other obligation under this Agreement.

 

  18.18 Provisions for the Benefit of Lenders Only

The provisions of this Article 18 relating to the rights and obligations of the Lenders and Agent inter se shall be operative as between the Lenders and Agent only, and the Borrower shall not have any rights or obligations under or be entitled to rely for any purposes upon such provisions. However, the provisions of subsection 18.2.3 and 18.16 shall be applicable as between the Borrower, the Guarantors (if applicable) and the Agent.

 

  18.19 Resignation of Agent

 

  18.19.1 Notwithstanding the irrevocable appointment of the Agent, a majority of Lenders holding not less than 66.67% of the Commitments may (with the consent of the Borrower), upon giving the Agent thirty (30) days prior written notice to such effect, terminate the Agent’s appointment hereunder provided that a successor Agent has been appointed at or prior to the expiry of such notice.

 

109.


  18.19.2 The Agent may resign its appointment hereunder at any time without giving any reason therefor by giving written notice to such effect to each of the other parties hereto. Such resignation shall not be effective until a successor Agent has been appointed.

 

  18.19.3 In the event of any such termination or resignation, the Lenders shall appoint a successor Agent that is willing to accept such role and is acceptable to the Borrower within thirty (30) days therefrom, deliver copies of all accounts to such successor and the retiring Agent shall be discharged from any further obligations hereunder but shall remain entitled to the benefit of the provisions of this Article 18 and the Agent’s successor and each of the other parties hereto shall have the same rights and obligations among themselves as they would have had if such successor originally had been a party hereto as Agent.

 

  18.20 No Novation

The parties hereto agree that the changes to the terms and conditions of the Credit Agreement and the amendments and restatement set out herein and the execution of these presents shall not constitute novation, and that all Security shall continue to apply to this Credit Agreement, as amended and restated by these presents, and all other obligations secured thereby.

 

19. CERTAIN PROVISIONS RELATING TO THE FINNVERA TERM FACILITY

 

  19.1 Application of Article 18

The provisions of Article 18 shall apply to the Finnvera Facility Lenders and the Finnvera Term Facility except to the extent modified in Section 11 of Schedule “P”.

 

  19.2 Notice by Agent to the Finnvera Facility Agent

The Agent shall have no obligation to forward a copy of any report, notice or other document to the Finnvera Facility Lenders. The Agent shall instead forward such items to the Finnvera Facility Agent for distribution to the Finnvera Facility Lenders.

 

  19.3 Confirmation of Sharing

For greater certainty, the sharing among the Lenders contemplated by Section 18.8 includes all of the Lenders including the Finnvera Facility Lenders.

 

20. FORMAL DATE

 

  20.1 Formal Date

For the purposes of convenience, this Amended and Restated Agreement may be referred to as bearing the Formal Date of June 16, 2015 notwithstanding its actual date of signature.

 

110.


Remainder of page intentionally left blank. Signature pages follow.

 

111.


IN WITNESS WHEREOF THE PARTIES HERETO HAVE SIGNED THIS AGREEMENT ON THE DATE AND AT THE PLACE FIRST HEREINABOVE MENTIONED.

 

VIDÉOTRON LTÉE
Per:  

 

Per:  

 

Address:

612 St-Jacques Street

18 th floor

Montreal, Quebec

H3C 4M8

Attention: Vice President and Treasurer

Telephone: (514) 380-7414

Fax: (514) 380-1983


ROYAL BANK OF CANADA, as Agent

 

Per:  

 

Per:  

 

Address:

20 King Street West, 4th Floor

Toronto, Ontario,

M5H 1C4

Attention: Manager, Agency Services Group

Fax: 416-842-4023


THE LENDERS, SIGNING AS BOTH REVOLVING FACILITY LENDERS AND UNSECURED FACILITY LENDERS:

 

ROYAL BANK OF CANADA
Per:  

 

Per:  

 

Address:

1 Place Ville Marie

Suite 400

Montreal, Quebec

H3B 4R8

Attention: Rod Smith

Telephone: 514-878-2815

Fax: 514-874-1349

Email: Rod.Smith@rbccm.com


NATIONAL BANK OF CANADA
Per:  

 

Per:  

 

Address:

1155 Metcalfe Street

5 th Floor

Montreal, Quebec

H3B 4S9

Attention: Luc Bernier, Director

Telephone: 514-390-5639

Fax: 514-390-7860

Email: Luc.Bernier@nbfinancial.com


BANK OF AMERICA, N.A., CANADA BRANCH

Per:  

 

Per:  

 

Address:

181 Bay Street

Toronto, Ontario

M5J 2V8

Attention: Peter Vanderhorst, Director

Telephone: 617-434-0164

Fax: 980-233-7788

Email: peter.vanderhorst@baml.com


THE BANK OF NOVA SCOTIA
Per:  

 

Per:  

 

Address:

Scotia Plaza

40 King St. West

Toronto, Ontario

M5W 2X6

Attention: Rob King

Telephone: 416-933-1873

Fax: 416-866-2010

Email: rob.king@scotiabank.com


THE TORONTO-DOMINION BANK
Per:  

 

Per:  

 

Address:

500 St. Jacques

Montreal, Quebec

H2Y 1P1

Attention: Paul Archer / Yves Bergeron – C0000040

Telephone: 514-289-2558 / 514-289-0099

Fax: 514-289-0788

Email: paul.archer@tdsecurities.com / yves.bergeron@tdsecurities.com


BANK OF MONTREAL
Per:  

 

Per:  

 

Address:

234 Simcoe Street

3 rd Floor

Toronto, Ontario

M5T 1T4

Attention: Frank Albernaz

Telephone: 416-598-6775

Fax: 416-598-6230

Email: Frank.albernaz@bmo.com


CAISSE CENTRALE DESJARDINS
Per:  

 

Per:  

 

Address:

1170 Peel Street

Suite 300

Montreal, Quebec

H3B 0A9

Attention: André Roy, Director

Telephone: 514-281-7791

Fax: 514-281-4317

Email: andre.roy@ccd.desjardins.com


CANADIAN IMPERIAL BANK OF COMMERCE

Per:  

 

Per:  

 

Address:

161 Bay Street

8 th Floor

Toronto, Ontario

M5J 2S8

Attention: Kim Yeung

Telephone: 416-542-4541

Fax: 416-542-4525

Email: kim.yeung@cibc.ca


HSBC BANK CANADA
Per:  

 

Per:  

 

Address:

300-2001 McGill College

Montreal, Quebec

H3A 1G1

Attention: Annie Houle, Global Relationship Manager and Director

Telephone: 514-286-4567

Fax: 514-285-8637

Email: Annie_Houle@hsbc.ca


JPMORGAN CHASE BANK, N.A.
Per:  

 

Per:  

 

Address:

66 Wellington Street West.

Suite 4500

Toronto, Ontario

M5K 1E7

Attention: Jeffrey S. Coleman, Executive Director

Telephone: (416) 981-9200

Fax: (416) 981-9278

Email: jeffrey.s.coleman@jpmorgan.com


BANK OF TOKYO – MITSUBISHI UFJ (CANADA)

Per:  

 

Per:  

 

Address:

600 de Maisonneuve Blvd. W.

Suite 2520

Montreal, Quebec

H3A 3J2

Attention: Amos Simpson, Managing Director & General Manager

Telephone: 514-875-9261

Fax: 514-875-9392

Email: asimpson@ca.mufg.jp


CITIBANK, N.A., CANADIAN BRANCH
Per:  

 

Per:  

 

Address:

123 Front Street West

Toronto, Ontario

M5J 2M3

Attention: Isabelle Côté, Managing Director

Telephone: 514-393-7502

Fax: 866-550-2418

Email: isabelle.f.cote@citi.com


MIZUHO BANK, LTD.
Per:  

 

Per:  

 

Address:

100 Yonge Street, Suite 1102

Toronto, Ontario

M5C 2W1

Attention: Bill McFarland

Telephone: 416-874-1145

Fax: 416-360-7502

Email: bill.mcfarland@mizuhocbus.com


ICICI BANK CANADA
Per:  

 

Per:  

 

Address:

150 Ferrand Drive, Suite 1200

Don Valley Business Park

Toronto, Ontario

M3C 3E5

Attention: Lester Fernandes, Sr. Account Manager

Telephone: 416-601-2775

Fax: 416-422-2447

Email: Lester.fernandes@icicibank.com


LAURENTIAN BANK OF CANADA
Per:  

 

Per:  

 

Address:

1981 McGill College Avenue

19 th Floor

Montreal, Quebec

H3A 3K3

Attention: Michel Gendron

Telephone: 514-284-4500 (4523)

Fax: 514-284-9723

Email: michel.gendron@banquelaurentienne.ca


HSBC BANK PLC, as Finnvera Facility Agent

 

Per:                                                          

Credit Matters

Address:

Level 2, 8 Canada Square

Canary Wharf

London, E14 5HQ

United Kingdom

 

Attention:    Mike Bonnici
Telephone:    +44 (0) 20 7991 6256
Fax:    +44 (0) 20 7992 4428
E-mail:    mike.bonnici@hsbcib.com
Reference:    FC 1311

Operational Matters

Address:

Level 27, 8 Canada Square

Canary Wharf

London, E14 5HQ

United Kingdom

 

Attention:    Pete Fassam
Telephone:    +44 (0) 20 7991 2447
Fax:    +44 (0) 20 7992 4428
E-mail:    peter.a.fassam@hsbc.com
Reference:    FC 1311
-and-   
Attention:    David Wilson
Telephone:    +44 (0) 7992 2569
Fax:    +44 (0) 20 7992 4428
E-mail:    David.a.wilson@hsbcib.com
Reference:    FC 1311


THE FINNVERA TERM FACILITY LENDERS:

HSBC BANK PLC

 

Per:                                                          

Credit Matters

Address:

Level 2, 8 Canada Square

Canary Wharf

London, E14 5HQ

United Kingdom

 

Attention:    Robert Hossack
Telephone:    +44 (0) 20 7992 2571
Fax:    +44 (0) 20 7991 4347
E-mail:    robert.ihossack@hsbcib.com
Reference:    FC 1311

Operational Matters

Address:

Level 27, 8 Canada Square

Canary Wharf

London, E14 5HQ

United Kingdom

 

Attention:    Pete Fassam
Telephone:    +44 (0) 20 7991 2447
Fax:    +44 (0) 20 7992 4428
E-mail:    peter.a.fassam@hsbc.com
Reference:    FC 1311

-and-

 

Attention:    David Wilson
Telephone:    +44 (0) 7991 2447
Fax:    +44 (0) 20 7992 4428
E-mail:    david.a.wilson@hsbcib.com
Reference:    FC 1311


THE TORONTO-DOMINION BANK

 

Per:                                                          

Per:                                                          

Credit Matters

Address:

The Toronto-Dominion Bank

77 King Street West

Royal Trust Tower, 19 th Floor

Toronto, Ontario M5K 1A2

 

Attention:    Sumit Paliwal
Telephone:    (416) 983-2803
Fax:    (416) 982-7838
E-mail:    sumit.paliwal@tdsecurities.com

Operational Matters

Address:

TD Securities

Global Trade Finance

500 St-Jacques Street, 8 th Floor

Montreal, Quebec H2Y 1S1

 

Attention:    Caroline Danneau
Telephone:    (514) 289-0251
Fax:    (514) 289-1469
E-mail:    caroline.danneau@tdsecurities.com


SUMITOMO MITSUI BANKINGCORPORATION OF CANADA

 

Per:                                                          
Per:                                                          

Credit Matters

Address:

Ernst & Young Tower, TD Centre

Suite 1400,Box 172

222 Bay St.

Toronto, Ontario M5K 1H6

 

Attention:    Elwood Langley, Senior Vice President
Telephone:    (416) 214-3606
Fax:    (416) 367-3565
E-mail:    elwood_langley@smbcgroup.com
-or-   
Attention:    Ming Chang, Vice President
Telephone:    (416) 368-4178
Fax:    (416) 367-3565
E-mail:    Ming_Chang@smbcgroup.com

Operational Matters

Address:

Ernst & Young Tower, TD Centre

Suite 1400,Box 172

222 Bay St.

Toronto, Ontario M5K 1H6

 

Attention:    Heather Nakamura, Manager
Telephone:    (416) 214-3607
Fax:    (416) 367-3565
E-mail:    heather_nakamura@smbcgroup.com
-or-   
Attention:    Andrew Yiu, Vice President
Telephone:    (416) 368-7570
Fax:    (416) 367-3565
E-mail:    andrew_yiu@smbcgroup.com


Intervention by the Guarantors as at the Third Amendment Closing Date

The undersigned acknowledge having taken cognizance of the provisions of the foregoing Amended and Restated Credit Agreement and agree that the Guarantees and Security executed by them (A) remain enforceable against them in accordance with their terms, and (B) continue to guarantee or secure, as applicable, all of the obligations of the Persons specified in such Guarantees and Security Documents in connection with the Credit Agreement as defined above, without any limitations:

 

9293-6707 QUÉBEC INC.   9227-2590 QUÉBEC INC.
Per:                                                                       Per:                                                                    
9230-7677 QUÉBEC INC.   8487782 CANADA INC.
Per:                                                                       Per:                                                                    

VIDEOTRON L.P., represented

by its general partner

9230-7677 QUÉBEC INC.

  VIDEOTRON G.P.
Per:                                                                       Per:                                                                    
VIDÉOTRON INFRASTRUCTURES INC.  

4DEGRÉS COLOCATION INC. /

4DEGREES COLOCATION INC.

Per:                                                                       Per:                                                                    


SCHEDULE “A” - LIST OF LENDERS AND COMMITMENTS

 

The Revolving Facility Lender

  

Commitment ($)

    

Commitment (%)

 

Royal Bank of Canada

   $ 70,250,000         11.423

National Bank of Canada

   $ 70,250,000         11.423

Bank of America, N.A., Canada Branch

   $ 61,500,000         10.000

The Bank of Nova Scotia

   $ 61,500,000         10.000

The Toronto-Dominion Bank

   $ 61,500,000         10.000

Bank of Montreal

   $ 45,000,000         7.317

Caisse Centrale Desjardins

   $ 45,000,000         7.317

Canadian Imperial Bank of Commerce

   $ 40,000,000         6.504

HSBC Bank Canada

   $ 30,000,000         4.878

JPMorgan Chase Bank, N.A.

   $ 30,000,000         4.878

Bank of Tokyo-Mitsubishi UFJ (Canada)

   $ 30,000,000         4.878

Citibank, N.A., Canadian Branch

   $ 25,000,000         4.065

Mizuho Bank, Ltd.

   $ 15,000,000         2.439

ICICI Bank Canada

   $ 15,000,000         2.439

Laurentian Bank of Canada

   $ 15,000,000         2.439
  

 

 

    

 

 

 

Total

   $ 615,000,000         100

The Unsecured Facility Lender

  

Commitment ($)

    

Commitment (%)

 

Royal Bank of Canada

   $ 40,000,000         11.429

National Bank of Canada

   $ 40,000,000         11.429

Bank of America, N.A., Canada Branch

   $ 35,000,000         10.000

The Bank of Nova Scotia

   $ 35,000,000         10.000

The Toronto-Dominion Bank

   $ 35,000,000         10.000

Bank of Montreal

   $ 25,750,000         7.357

Caisse Centrale Desjardins

   $ 25,750,000         7.357

Canadian Imperial Bank of Commerce

   $ 22,750,000         6.500

HSBC Bank Canada

   $ 17,000,000         4.857

JPMorgan Chase Bank, N.A.

   $ 17,000,000         4.857

Bank of Tokyo-Mitsubishi UFJ (Canada)

   $ 17,000,000         4.857

Citibank, N.A., Canadian Branch

   $ 14,250,000         4.071

Mizuho Bank, Ltd.

   $ 8,500,000         2.429

ICICI Bank Canada

   $ 8,500,000         2.429

Laurentian Bank of Canada

   $ 8,500,000         2.429
  

 

 

    

 

 

 

Total

   $ 350,000,000         100


The Finnvera Term Facility

(Amounts as at the Third Amendment Closing Date per below, as such amounts were and may be further reduced pursuant to Schedule “P”. For clarity, for the purposes of determining the amount of the Commitments of the Finnvera Facility Lenders under the Finnvera Term Facility to calculate the voting by Majority Lenders, reference will be made to the principal amount owed to the Finnvera Facility Lenders on the relevant date).

 

Lender

  

Commitment ($)

    

Commitment (%)

 

HSBC Bank plc

   $ 12,053,571.44         37.5

The Toronto-Dominion Bank

   $ 16,071,428.58         50.0

Sumitomo Mitsui Banking Corporation of Canada

   $ 4,017,857.14         12.5
  

 

 

    

 

 

 

Total

   $ 32,142,857.16         100


SCHEDULE “B” - NOTICE OF BORROWING AND CERTIFICATE

 

TO:      ROYAL BANK OF CANADA, as Agent   
FROM:      VIDÉOTRON LTÉE    DATE:

1) This Notice of Borrowing and Certificate is delivered to you pursuant to the Amended and Restated Credit Agreement dated as of June 16, 2015, and as same may have been further amended (the “ Credit Agreement ”). All defined terms set forth in this Notice of Borrowing and Certificate shall have the respective meanings set forth in the Credit Agreement

2) We hereby request a Cdn. $ Advance under the Revolving Facility/Unsecured Facility {s elect one } of the Credit Agreement as follows:

 

  (a)   Date of Advance:   

 

 
  (b)   Amount of Advance:  

 

 
  (c)   Type of Advance:  

 

 
  (d)   Designated Period(s) (if any):  

 

 
  (e)   Maturity Date(s) (if applicable):  

 

 
  (f)   Payment Instruction (if any):  

 

 

3) We have understood the provisions of the Credit Agreement which are relevant to the furnishing of this Notice of Borrowing and Certificate. To the extent that this Notice of Borrowing and Certificate evidences, attests or confirms compliance with any covenants or conditions precedent provided for in the Credit Agreement, we have made such examination or investigation as was, in our opinion, necessary to enable us to express an informed opinion as to whether such covenants or conditions have been complied with.

4) WE HEREBY CERTIFY THAT, in our opinion, as of the date hereof:

(a) All of the representations and warranties of the Borrower contained in Article 11 of the Credit Agreement (except where qualified in Article 11 as being made as at a particular date) are true and correct on and as of the date hereof as though made on and as of the date hereof.

(b) All of the covenants of the Borrower contained in Articles 12 and 13 of the Credit Agreement together with all of the conditions precedent to an Advance and all other terms and conditions contained in the Credit Agreement have been fully complied with.

(c) If the requested Advance is under the Unsecured Facility, we confirm that the principal amount of the Advances outstanding under the Revolving Facility will not be less than the Threshold Amount on the date the requested Advance under the Unsecured Facility is made.

(d) No Event of Default has occurred and no Default has occurred and is continuing.

 

Yours truly,
VIDÉOTRON LTÉE
Per:  

 

 

 

Title:  

 


SCHEDULE “B-1”- NOTICE OF REPAYMENT

 

TO:    ROYAL BANK OF CANADA, as Agent
FROM:    VIDÉOTRON LTÉE
DATE:   

1) This notice of repayment is delivered to you pursuant to the Amended and Restated Credit Agreement dated as of June 16, 2015 entered into among VIDÉOTRON LTÉE and, inter alia , Royal Bank of Canada as Agent (as amended and restated and in effect on the date hereof, the “ Credit Agreement ”). All defined terms set forth in this notice shall have the respective meanings set forth in the Credit Agreement.

2) We hereby advise you that we will be repaying the sum of Cdn.$            on                 as follows [indicate amount payable in respect of the Revolving Facility/Unsecured Facility {s elect one } as well as the type of Advance to be repaid].

3) [We hereby advise you that in accordance with the last paragraph of Section 8.2, we are cancelling the Credit under the Revolving Facility/Unsecured Facility {s elect one }, effective                 , by $             , to a maximum of $             .]

4) If the cancellation of Credit is being made under the Revolving Facility, we hereby certify that there is no Credit available, and there are no Loan Obligations currently outstanding under, the Unsecured Facility.

 

Yours truly,
VIDÉOTRON LTÉE
Per:  

 

Title:  

 


SCHEDULE “B-2”- NOTICE OF CONVERSION OF COMMITMENTS

 

TO:    ROYAL BANK OF CANADA, as Agent
FROM:    VIDÉOTRON LTÉE
DATE:   

1) This notice of conversion is delivered to you pursuant to the Amended and Restated Credit Agreement dated as of June 16, 2015 entered into among VIDÉOTRON LTÉE and, inter alia , Royal Bank of Canada as Agent (as amended and restated and in effect on the date hereof, the “ Credit Agreement ”). All defined terms set forth in this notice shall have the respective meanings set forth in the Credit Agreement.

2) We hereby advise you that we are permitted to incur an additional amount of Debt secured by Charges as a result of {s elect one of (a) or (b) }:

(a) Conversion Notice-Partial : one or more reductions in the amount of Loan Obligations under the Finnvera Term Facility that have not yet been converted into increased amount of Credit under the Revolving Facility, which available amounts permitted to be so converted under the Senior Note Indentures currently total $             (the “ Permitted Partial Conversion Amount ”). Please increase the amount of the Credit under the Revolving Facility and reduce the amount of the Credit under the Unsecured Facility by an amount equal to $            (said amount being equal to or less than the Permitted Partial Conversion Amount) by converting a pro rata portion of the Commitment of each Unsecured Facility Lender into an additional Commitment of such Lender under the Revolving Facility as a Revolving Facility Lender, with effect three (3) Business Days from the date hereof.

(b) Conversion Notice-Total : the repayment in full of all of the Senior Notes and the termination of the Senior Note Indentures. Accordingly, please increase the amount of the Credit under the Revolving Facility by an amount equal to the entire amount of the Credit under the Unsecured Facility and reduce the amount of the Credit under the Unsecured Facility to zero by converting the Commitment of each Unsecured Facility Lender into an additional Commitment of the same Lender under the Revolving Facility as a Revolving Facility Lender, with effect three (3) Business Days days from the date hereof. Please terminate the Unsecured Facility once the conversion has become effective.

 

Yours truly,
VIDÉOTRON LTÉE
Per:  

 

 

 

Title:  

 


SCHEDULE “C” – ASSIGNMENT AND ASSUMPTION

This Assignment and Assumption (the “ Assignment and Assumption ”) is dated as of the Effective Date set forth below and is entered into by and between [ Insert name of Assignor ] (the “ Assignor ”) and [ Insert name of Assignee ] (the “ Assignee ”). Capitalized terms used but not defined herein shall have the meanings given to them in the Amended and Restated Credit Agreement identified below (as amended, the “ Credit Agreement ”), receipt of a copy of which is hereby acknowledged by the Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein in full.

For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the Agent as contemplated below, (i) all of the Assignor’s rights and obligations in its capacity as a Lender under the Credit Agreement and any other documents or instruments delivered pursuant thereto to the extent related to the amount and percentage interest identified below of all of such outstanding rights and obligations of the Assignor under the respective facilities identified below (including without limitation any Letters of Credit, Guarantees and Swing Line Advances included in such facilities) and (ii) to the extent permitted to be assigned under Applicable Law, all claims, suits, causes of action and any other right of the Assignor (in its capacity as a Lender) against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other Loan Documents or instruments delivered pursuant thereto or the loan-transactions governed thereby or in any way based on or related to any of the foregoing, including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold and assigned pursuant to clauses (i) and (ii) above being referred to herein collectively as, the “ Assigned Interest ”). Such sale and assignment is without recourse to the Assignor and, except as expressly provided in this Assignment and Assumption, without representation or warranty by the Assignor. The Assignee acknowledges and accepts that the Assignee and the Agent are solidary creditors of the Borrower and the Guarantors in respect of all amounts, liabilities and other obligations, present and future, of the Borrower and the Guarantors to each of them under the Credit Agreement and the Derivative Instruments as contemplated by Section 18.1.2 of the Credit Agreement and in accordance with Article 1541 of the Civil Code of Quebec .

 

1. Assignor:

 

2. Assignee:

[ and is an Affiliate/Approved Fund of [identify Lender] 1 ]

 

3. Borrower: VIDÉOTRON LTÉE

 

1   Select as applicable.


4. Agent: ROYAL BANK OF CANADA , as the administrative agent under the Credit Agreement

 

5. Credit Agreement: [ The Amended and Restated Credit Agreement dated as of June 16, 2015 among VIDÉOTRON LTÉE , the Lenders parties thereto, ROYAL BANK OF CANADA , as Agent, and the other agents parties thereto (as amended and restated and in effect on the date hereof) ]

 

6. Assigned Interest:

 

Facility Assigned

- Revolving

Facility/Unsecured

Facility

 

Aggregate Amount of
Commitment/Loan
Obligations for all

Lenders 2

 

Amount of

Commitment/Loan

Obligations

Assigned 3

 

Percentage Assigned of
Commitment/Loan

Obligations 3

 

CUSIP Number

                 
                 
                 

 

7. [Trade Date:     ] 4

 

 

2   Amount to be adjusted by the counterparties to take into account any payments or prepayments made between the Trade Date and the Effective Date.
3   Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans of all Lenders thereunder.
4   To be completed if the Assignor and the Assignee intend that the minimum assignment amount is to be determined as of the Trade Date.


Effective Date:             , 20    [TO BE INSERTED BY AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]

The terms set forth in this Assignment and Assumption are hereby agreed to:

 

ASSIGNOR

[NAME OF ASSIGNOR]

By:  

 

Title:  

 

ASSIGNEE

[NAME OF ASSIGNEE]

By:  

 

Title:  

Consented to and Accepted:

 

ROYAL BANK OF CANADA , as Agent
By:  

 

Title:  

[ Consented to: ] 5

 

ROYAL BANK OF CANADA , as Issuing Lender
By:  

 

Title:  

 

VIDÉOTRON LTÉE
By:  

 

Title:  

 

5   To be added only if the consent of the Borrower and/or other parties (e.g. L/C Issuer) is required by the terms of the Credit Agreement.


ANNEX 1 to Assignment and Assumption

[            ] 6

STANDARD TERMS AND CONDITIONS FOR

ASSIGNMENT AND ASSUMPTION

 

1. Representations and Warranties .

1.1    Assignor . The Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any Lien and (iii) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby; and (b) assumes no responsibility with respect to (i) any statements, warranties or representations made in or in connection with the Credit Agreement or any other Loan Document, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Loan Documents or any collateral thereunder, (iii) the financial condition of the members of the VL Group, any of their Subsidiaries or Affiliates or any other Person obligated in respect of any Loan Document or (iv) the performance or observance by the members of the VL Group or any other Person of any of their respective obligations under any Loan Document.

1.2    Assignee . The Assignee (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and to become a Lender under the Credit Agreement, (ii) it meets all requirements of an Eligible Assignee under the Credit Agreement (subject to receipt of such consents as may be required under the Credit Agreement), (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit Agreement as a Lender thereunder and, to the extent of the Assigned Interest, shall have the obligations of a Lender thereunder, (iv) it has received a copy of the Credit Agreement, together with copies of the most recent financial statements delivered pursuant to Section 12.15 thereof, as applicable, and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Assignment and Assumption and to purchase the Assigned Interest on the basis of which it has made such analysis and decision independently and without reliance on the Agent or any other Lender, and (v) if it is a Foreign Lender, attached to the Assignment and Assumption is any documentation required to be delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by the Assignee; and (b) agrees that (i) it will, independently and without reliance on the Agent, the Assignor or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Loan Documents, and (ii) it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender.

 

6   Describe Credit Agreement at option of Agent.


2.    Payments . From and after the Effective Date, the Agent shall make all payments in respect of the Assigned Interest (including payments of principal, interest, fees and other amounts) to the Assignee whether such amounts have accrued prior to, on or after the Effective Date. The Assignor and the Assignee shall make all appropriate adjustments in payments by the Agent for periods prior to the Effective Date or with respect to the making of this assignment directly between themselves.

3.    General Provisions . This Assignment and Assumption shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns. This Assignment and Assumption may be executed in any number of counterparts, which together shall constitute one instrument. Delivery of an executed counterpart of a signature page of this Assignment and Assumption by telecopy or by sending a scanned copy by electronic mail shall be effective as delivery of a manually executed counterpart of this Assignment and Assumption. This Assignment and Assumption shall be governed by, and construed in accordance with, the law governing the Credit Agreement.


SCHEDULE “C-1” - LOAN MARKET DATA TEMPLATE

Recommended Data Fields – At Close

The items highlighted in bold are those that Loan Pricing Corporation (LPC) deem essential. The remaining items are those that LPC has seen become more prominent over time as transparency has increased in the U.S. Loan Market.

 

Company Level   Deal Specific    Facility Specific
Issuer Name   Currency/Amount    Currency/Amount
Location   Date    Type
SIC (Cdn)   Purpose    Purpose
Identification Number(s)   Sponsor    Tenor
Revenue   Financial Covenants    Term Out Option
     Expiration Date
  Target Company    Facility Signing Date
*Measurement of Risk   Assignment Language    Pricing

S&P Sr. Debt

  Law Firms   

Base

    

Rate(s)/Spread(s)/BA/LIBOR

S&P Issuer

  MAC Clause   

Initial Pricing Level

Moody’s Sr. Debt

  Springing lien   

Pricing Grid (tied to, levels)

Moody’s Issuer

  Cash Dominion   

Grid Effective Date

Fitch Sr. Debt

  Mandatory Prepays    Fees

Fitch Issuer

  Restrct’d Payments (Neg Covs)   

Participation Fee (tiered also)

S&P Implied

(internal assessment)

  Other Restrictions    Commitment Fee
DBRS     
Other Ratings      Annual Fee
*Industry Classification     

Utilization Fee

Moody’s Industry

    

LC Fee(s)

S&P Industry

    

BA Fee

Parent      Prepayment Fee
Financial Ratios      Other Fees to Market
    

Security

    

Secured/Unsecured

    

Collateral and Seniority of Claim

    

Collateral Value

     Guarantors
     Lenders Names/Titles
     Lender Commitment ($)
     Commited/Uncommited
     Distribution method
     Amortization Schedule
     Borrowing Base/Advance Rates
     New Money Amount
     Country of Syndication
     Facility Rating (Loss given default)
    

S&P Bank Loan

    

Moody’s Bank Loan

    

Fitch Bank Loan

    

DBRS

    

Other Ratings

 

* These items would be considered useful to capture from an analytical perspective


SCHEDULE “D” – FORM OF GUARANTEE

GUARANTEE entered into in the City of Montreal, Quebec as of ●, 20●.

 

BY:    ●, a corporation governed by the ●, having its head office at ● (the “ Guarantor ”);
IN FAVOUR OF:    ROYAL BANK OF CANADA, a bank governed by the Bank Act (Canada), acting for itself and as Agent and solidary creditor for each present and future Lender under the Credit Agreement hereinafter described (the “ Agent ”)

WHEREAS pursuant to an Amended and Restated Credit Agreement dated as of June 16, 2015, among, inter alia, Vidéotron Ltée, as borrower (the “ Borrower ”), the financial institutions that may become parties thereto from time to time, as lenders, Royal Bank of Canada, as administrative agent (as same may be amended, supplemented, replaced, restated or otherwise modified from time to time, the “ Credit Agreement ”), the Guarantor is to provide the Agent with a guarantee of all of the obligations of the Borrower under the Credit Agreement, the Derivative Instruments entered into with Lenders and the Security Documents (each as defined in the Credit Agreement);

WHEREAS pursuant to subsection 18.1.2 of the Credit Agreement, the Agent and each Lender are conferred the legal status of solidary creditors of the Borrower and the Guarantors (as defined in the Credit Agreement) in respect of all amounts, liabilities and other obligations owed by the Borrower and the Guarantors (as so defined) to each of them under the Credit Agreement, the Derivative Instruments entered into with Lenders and under the Security Documents, the whole in accordance with Article 1541 of the Civil Code of Québec (the “ CCQ ”);

WHEREAS pursuant to subsection 18.1.1 of the Credit Agreement, the Agent has been granted the authority to hold any and all Security under the Credit Agreement;

NOW THEREFORE, THE PARTIES HERETO HAVE AGREED AS FOLLOWS:

 

1. GUARANTEE

 

1.1 Guarantee

For valuable consideration, the Guarantor hereby solidarily (jointly and severally) with the Borrower and each of the Other Guarantors, as defined in Section 2.1, guarantees to the Agent and each Lender, as solidary creditors of the Guarantor’s obligations hereunder, forthwith after demand therefor made in accordance with the provisions of the Credit Agreement, due and punctual payment of all present and future debts and liabilities, and the performance of all obligations of every nature, absolute or contingent, direct, indirect or otherwise, in any currency, now or at any time and from time to time hereafter due or owing by the Borrower to the Agent


and each Lender arising under or in connection with the Credit Agreement (including under the Swing Line Facilities), the Derivative Instruments entered into with Lenders and the Security Documents (such obligations as amended, amended and restated, modified, supplemented or renewed, collectively, the “ Guaranteed Obligation ”). The Guarantor expressly renounces to the benefits of division and discussion. The obligation undertaken by the Guarantor pursuant to this Section 1.1 is hereinafter referred to as the “ Guarantee ”.

 

1.2 Guarantee Absolute

The liability of the Guarantor hereunder shall be absolute and unconditional and shall not be affected by:

 

  (a) any lack of validity or enforceability of any of the Guaranteed Obligation; any change in the time, manner or place of payment of the Guaranteed Obligation; or the failure on the part of the Borrower or any of the Other Guarantors to carry out any of the Guaranteed Obligation;

 

  (b) any impossibility, impracticability, frustration of purpose, illegality, force majeure or act of government;

 

  (c) the bankruptcy, winding-up, liquidation, dissolution or insolvency of the Borrower or any of the Other Guarantors, the Agent or the Lenders or any of them or any party to any agreement to which the Agent, the Lenders, the Borrower or the Other Guarantors or any of them is a party;

 

  (d) any lack or limitation of power, incapacity or disability on the part of any of the Borrower or the Other Guarantors or of the directors, partners or agents thereof or any other irregularity, defect or informality on the part of any of the Borrower or the Other Guarantors in its obligations to the Agent or the Lenders or any of them;

 

  (e) any change or changes in the name, corporate existence or structure of any of the Borrower or Guarantors;

 

  (f) any other law, regulation or other circumstance which might otherwise constitute a defence available to, or a discharge of, any of the Borrower or the Other Guarantors in respect of any or all of the Guaranteed Obligation.

 

1.3 Recovery as Principal Debtor

Any amount which may not be recoverable from the Guarantor by the Agent on the basis of a guarantee shall be recoverable by the Agent from the Guarantor as principal debtor in respect thereof and shall be paid to the Agent for the account of the Lenders forthwith after demand therefor.


2. DEALINGS WITH CREDIT PARTIES AND OTHERS

 

2.1 No Release

The liability of the Guarantor hereunder shall not be released, discharged, limited or in any way affected by anything done, suffered or permitted by the Agent or the Lenders or any of them in connection with any duties or liabilities of the Borrower or the other Guarantors within the meaning of the Credit Agreement (the “ Other Guarantors ”) or any of them to the Agent or the Lenders or any of them, or any security therefor including any loss of or in respect of any security received by the Agent or the Lenders or any of them from the Borrower, the Other Guarantors or any other Person. Without limiting the generality of the foregoing and without releasing, discharging, limiting or otherwise affecting in whole or in part the Guarantor’s liability hereunder, without obtaining the consent of or giving notice to the Guarantor, the Agent and the Lenders may:

 

  (a) grant time, renewals, extensions, indulgences, releases and discharges to the Borrower or the Other Guarantors;

 

  (b) take or abstain from taking or enforcing securities or collateral from the Borrower or the Other Guarantors or from perfecting securities or collateral of the Borrower or the Other Guarantors;

 

  (c) accept compromises from the Borrower or the Other Guarantors;

 

  (d) subject to the applicable provisions of the Credit Agreement, apply all money at any time owing from the Borrower or the Other Guarantors or from any collateral security to such part of the Guaranteed Obligation as the Agent may see fit or change any such application in whole or in part from time to time as the Agent may see fit; for greater certainty, the Agent or any of the Lenders may at any time and from time to time, to the fullest extent permitted by law, set-off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held and other indebtedness at any time owing by the Agent or any of the Lenders to or for the credit of the Guarantor against any and all of the liabilities of the Borrower, whether or not the Agent shall have made any demand under the Guarantee. The Agent or the Lenders, as the case may be, shall promptly notify the Guarantor after any such set-off and application, provided that the failure to give such notice shall not affect the validity of such set-off and application. The rights of the Agent and the Lenders under this paragraph are in addition to other rights and remedies (including without limitation, other rights of set-off) that the Agent and the Lenders may have; and

 

  (e) otherwise deal with the all other Persons and securities as the Agent and the Lenders may see fit, acting reasonably.


2.2 No Exhaustion of Remedies

The Agent and the Lenders shall not be bound or obligated to exhaust their recourse against the Borrower, the Other Guarantors, any other Person or any securities or collateral they may hold or take any other action before being entitled to demand payment from the Guarantor hereunder.

 

2.3 Accounts Binding upon the Guarantor

Any account settled or stated in writing by or between the Agent and the Borrower shall be accepted by the Guarantor as conclusive evidence, absent manifest error, that the balance or amount thereby appearing due by the Borrower to the Agent or the Lenders is so due.

 

2.4 No Set-off

In any claim by the Agent and the Lenders against the Guarantor, the Guarantor may not assert any set-off or counterclaim that the Guarantor or any of the Other Guarantors may have against the Agent and the Lenders or any of them. In particular, any loss of or in respect of any securities received by the Agent and the Lenders or any of them from the Borrower or any other Person, and the failure to perfect any mortgage, hypothec, prior claim or security interest of any nature whatsoever, whether occasioned through the fault or negligence of the Agent and the Lenders or any of them or otherwise, shall not discharge, limit or lessen the liability of the Guarantor under this agreement.

 

3. CONTINUING GUARANTEE

The Guarantee shall be a continuing guarantee of the Guaranteed Obligation and shall apply to and secure all Guaranteed Obligation and shall not be considered as wholly or partially satisfied by the payment or liquidation at any time of any sum of money for the time being due or remaining unpaid to the Agent and the Lenders or any of them. The Guarantee shall continue to be effective even if at any time any payment of any of the Guaranteed Obligation is rendered unenforceable or is rescinded or must otherwise be returned by the Agent and the Lenders or any of them upon the occurrence of any action or event including the insolvency, bankruptcy or reorganization of the Borrower or any Other Guarantor or otherwise, all as though such payment had not been made. Any payments so rescinded or recovered from the Agent and the Lenders or any of them, whether as a preference, fraudulent transfer or otherwise, shall constitute Guaranteed Obligation for all purposes hereunder. The Guarantor hereby expressly waives the provisions of Articles 2353, 2362 and 2366 of the CCQ.

 

4. RIGHT TO PAYMENTS

Should the Agent and the Lenders or any of them receive from the Guarantor one or more payments on account of its liability under the Guarantee, the Guarantor shall not be entitled to claim repayment against the Borrower or the Other Guarantors until the Agent’s and the Lenders’ claims against the Borrower have been paid in full. In the event of the liquidation, winding-up or bankruptcy of the Borrower (whether voluntary or compulsory); or if the Borrower shall make a bulk sale of any of its assets within the meaning of any applicable


legislation of any other province of Canada, under the Uniform Commercial Code of any state of the United States of America or under any other applicable Laws; or should the Borrower make any proposal, composition or scheme of arrangement with its creditors; then, in any of such events the Agent and the Lenders shall have the right to rank for their full claim and receive all dividends or other payments in respect thereof until their claim has been paid in full, and the Guarantor shall remain liable up to the amount guaranteed for any balance which may be owing to the Agent and the Lenders by the Borrower; and in the event of the valuation by the Agent and the Lenders or any of them of any security held in respect of the debts of the Borrower, or of the retention by the Agent and the Lenders or any of them of such security, such valuation and/or retention shall not, as between the Agent and the Lenders and the Guarantor, be considered as a purchase of such security, or as payment or satisfaction or reduction of the liabilities of the Borrower to the Agent and the Lenders, or any part thereof.

 

5. TAXES

All payments to be made hereunder by the Guarantor shall be made free and clear of deduction for any present or future tax, levy, impost, duty, charge, assessment or fee of any nature (including interest, penalties and additions thereto) imposed by any government or other taxing authority (“ Taxes ”). If any Taxes are imposed and required to be withheld from any payment hereunder, the Guarantor shall (a) increase the amount of such payment so that the Agent and the Lenders will receive a net amount (after deduction of all Taxes, including any Taxes on the amount of any such increase) equal to the amount due hereunder, (b) pay such Taxes to the appropriate taxing authority for the account of the Agent and the Lenders, and (c) as promptly as possible thereafter, send the Agent and the Lenders an original receipt showing payment thereof, together with such additional documentary evidence as the Agent and the Lenders may from time to time reasonably require. If the Guarantor fails to perform its obligations under parts (b) or (c) of the preceding sentence, the Guarantor shall indemnify the Agent and the Lenders for any incremental taxes, interest or penalties that may become payable by the Agent and the Lenders or any of them as a consequence of such failure.

 

6. POSTPONEMENT OF SUBROGATION

To the fullest extent permitted by law, the Guarantor hereby irrevocably postpones any claim or other rights that it may now or hereafter acquire against the Borrower or the Other Guarantors, or any of them, that arise from the existence, payment, performance or enforcement of the Guarantor’s obligations under this agreement including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy against the Borrower, the Other Guarantors, or any collateral securing any obligation of the Borrower or the Other Guarantors, or any of them, whether or not such claim, remedy or right arises under contract, including, without limitation, the right to take or receive from the Borrower or the Other Guarantors or any of them, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, until such time as the Guaranteed Obligation and all amounts payable under this agreement have been indefeasibly paid to the Agent and the Lenders in cash. If any amount shall be paid to the Guarantor in violation of the preceding sentence at any time prior to the indefeasible cash payment in full of the Guaranteed Obligation and all other amounts


payable under this agreement, such amount shall be held by the Guarantor as mandatary for the benefit of the Agent and the Lenders and shall forthwith be paid to the Agent and the Lenders to be credited and applied to the Guaranteed Obligation and all other amounts payable under this agreement.

 

7. GENERAL

 

7.1 Representations and Warranties

The Guarantor reiterates the representations and warranties made in the Credit Agreement to the Lenders on its behalf by the Borrower (which representations and warranties are hereby deemed to have been made by the Guarantor and to be and remain in effect at all times).

 

7.2 Covenants

The Guarantor reiterates the covenants made in the Credit Agreement on its behalf by the Borrower (which are hereby deemed to have been made by the Guarantor).

 

7.3 Payment of Guaranteed Obligation, Fees and Costs

The Guarantor agrees to pay, within two Business Days of demand therefor, any amounts payable hereunder, including without limitation all out-of-pocket expenses (including the reasonable fees and expenses of the Agent’s counsel) in any way relating to the enforcement or protection of the rights of the Agent and the Lenders or any of them hereunder.

 

7.4 Currency

 

  (a) Each payment to be made under the Guarantee will be made in the currency in which the relevant Secured Obligation is payable (the “ Specified Currency ”). To the fullest extent permitted by applicable law, any obligation of the Guarantor to make payments under the Guarantee in a Specified Currency will not be discharged or satisfied by any tender in any currency other than the Specified Currency.

 

  (b)

To the fullest extent permitted by applicable law, if any judgment or order expressed in a currency other than the Specified Currency is rendered (i) for any payment of any amount owing in respect of the Guarantee, or (ii) in respect of a judgment or order of another court for the payment of any amount described in (i) above, the Agent, after recovery in full of the aggregate amount to which it is entitled pursuant to the judgment or order, shall be entitled to receive immediately from the Guarantor the amount of any shortfall of the Specified Currency received by the Agent as a consequence of sums paid in such other currency, and will refund promptly to the Guarantor any excess of the Specified Currency received by the Agent as a consequence of sums paid in such other currency if such shortfall or such excess arises or results from any variation between (i) the rate of exchange at which the Specified Currency is converted into the currency of the


  judgment or order for the purposes of such judgment or order and (ii) the rate of exchange at which the Agent is able, acting in a reasonable manner and in good faith, in converting the currency received into the Specified Currency, to purchase the Specified Currency with the amount of the currency of the judgment or order actually received by the Agent. The term “ rate of exchange ” includes, without limitation, any premiums and costs of exchange payable in connection with the purchase of or conversion into the Specified Currency.

 

  (c) To the fullest extent permitted by applicable law, the indemnities in this Section 7.4 constitute separate and independent obligations of the Guarantor from the other obligations in this agreement, will be enforceable as separate and independent causes of action, will apply notwithstanding any indulgence granted by the Agent, the Lenders or any of them and will not be affected by judgment being obtained or claim or proof being made for any other sums due in respect of this agreement.

 

  (d) For the purposes of this Section 7.4, it will be sufficient for a party to demonstrate that it would have suffered a loss had an actual exchange or purchase been made.

 

7.5 Discharge

The Guarantor will not be discharged from any of its obligations hereunder except by a release or discharge signed in writing by the Agent, duly authorized by the Lenders in accordance with the provisions of the Credit Agreement.

 

7.6 Notice

Any notice permitted or required to be given hereunder shall be given, in the case of the Agent, in accordance with the relevant provisions of the Credit Agreement and, in the case of the Guarantor, to its address indicated above and otherwise in accordance with the relevant provisions of the Credit Agreement.

 

7.7 Entire Agreement

Save as provided in Section 7.11, this agreement constitutes the entire agreement between the Guarantor, the Agent and the Lenders with respect to the subject matter hereof and cancels and supersedes any prior understandings and agreements between such parties with respect thereto. There are no representations, warranties, terms, conditions, undertakings or collateral agreements, express, implied or statutory, between the parties except as expressly set forth herein. The Agent and the Lenders shall not be bound by any representations or promises made by the Borrower, the Other Guarantors or any of them to the Guarantor, and possession of this agreement by the Agent shall be conclusive evidence against the Guarantor that this agreement was not delivered in escrow or pursuant to any agreement that it should not be effective until any condition precedent or subsequent has been complied with. This agreement shall be operative and binding notwithstanding the non-execution thereof by any proposed signatory.


7.8 Amendments and Waivers

No amendment to this agreement will be valid or binding unless set forth in writing and duly executed by the Guarantor and the Agent, duly authorized by the Lenders in accordance with the provisions of the Credit Agreement. No waiver of any breach of any provision of this agreement will be effective or binding unless made in writing and signed by the Agent, duly authorized by the Lenders in accordance with the provisions of the Credit Agreement and, unless otherwise provided in the written waiver, will be limited to the specific breach waived.

 

7.9 Severability

Each provision of this agreement is separate and distinct from the others, such that any decision of a court or tribunal to the effect that any provision hereof is null or unenforceable shall in no way affect the validity of the other provisions hereof or the enforceability thereof. Any provision of this agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. To the extent permitted by applicable Laws, the Guarantor hereby waives any provision of any Laws which renders any provision hereof prohibited or unenforceable in any respect.

 

7.10 Interpretation

Capitalized terms not otherwise defined herein shall have the meaning ascribed to them in the Credit Agreement. The words “this agreement”, “hereof”, “hereto”, etc. mean the present instrument executed by the Guarantor.

 

7.11 Additional Rights

This agreement is in addition and supplemental to all other guarantees and/or postponement agreements (whether or not in the same form as this instrument) held or which may hereafter be held by the Agent, the Lenders or any of them.

 

7.12 Governing Law

This agreement shall be governed by and construed in accordance with the laws of the Province of Quebec and the laws of Canada applicable therein.

 

7.13 Benefit of Agreement

This agreement shall extend to and enure to the benefit of the successors and assigns of the Agent and each of the Lenders and shall be binding upon the Guarantor and its successors.

 

7.14 Authority of Agent

The Guarantor acknowledges and agrees that the Agent has full authority to act on behalf of the Lenders in all matters relating to this agreement, and that any Person dealing with the Agent or the Lenders or any of them in respect of any such matter need not inquire further as to the authority of the Agent to act on behalf of the Lenders.


7.15 Language

The Guarantor acknowledges that it has required that the present agreement, as well as all documents, notices and legal proceedings entered into, given or instituted pursuant hereto or relating directly or indirectly hereto be drawn up in English. Le soussigné reconnaît avoir exigé la rédaction en anglais de la présente convention ainsi que de tous documents exécutés, avis donnés et poursuites judiciaires intentées relativement ou à la suite de la présente convention, que ce soit directement ou indirectement.

 

7.16 Executed Copy

The Guarantor acknowledges receipt of a fully executed copy of this agreement.

IN WITNESS WHEREOF the Guarantor has executed this Guarantee on the date and at the place first hereinabove mentioned.

 

 
Per:  

 

Name:  
Title:  

ACCEPTED AND AGREED as of this      day of                     :

 

ROYAL BANK OF CANADA ,
in its aforementioned capacities

 

Per:  

 


SCHEDULE “E” – FORM OF SHARE PLEDGE

[NOTE: If Videotron Ltd. is the party granting the pledge of shares, the form needs to be amended accordingly to remove any references to a guarantee]

DEED OF MOVABLE HYPOTHEC WITH DELIVERY granted in Montreal as of this ● day of ●

 

BY :    ●, a company governed by the laws of ● (hereinafter called the “ Grantor ”)
IN FAVOUR OF:    ROYAL BANK OF CANADA , a bank governed by the Bank Act (Canada), acting for itself and as Agent and solidary creditor for each present and future Lender under the Credit Agreement hereafter described (the “ Creditor ”)

WHEREAS pursuant to the Amended and Restated Credit Agreement dated as of June 16, 2015, among, inter alia, Vidéotron Ltée, as borrower (the “ Borrower ”), the financial institutions that may become parties thereto from time to time, as lenders, Royal Bank of Canada, as administrative agent (as same may be amended, supplemented, replaced, restated or otherwise modified from time to time, the “ Credit Agreement ”), the Grantor shall provide a pledge in favour of the Creditor of all shares and units it owns in its Subsidiaries, including ● (“ ”);

WHEREAS pursuant to the Credit Agreement, the Grantor executed in favour of the Creditor a guarantee dated as of ● (as amended, restated, replaced, supplemented or otherwise modified from time to time, the “ Guarantee ”);

WHEREAS pursuant to subsection 18.1.2 of the Credit Agreement, the Creditor and each Lender are conferred the legal status of solidary creditors of the Grantor in respect of all rights, liabilities and other obligations owed by the Grantor to each of them, the whole in accordance with article 1541 of the Civil Code of Quebec (the “ Civil Code ”);

WHEREAS the Creditor, as solidary creditor for each of the Lenders, has been granted the authority to hold any and all Security in respect of the Credit Agreement;

WHEREAS the Grantor has agreed to grant a movable hypothec with delivery on certain property;

NOW THEREFORE, THE PARTIES HERETO HAVE AGREED AS FOLLOWS:

 

1. INTERPRETATION

Capitalized terms used herein and not otherwise defined shall have the respective meanings ascribed thereto in the Credit Agreement.


2. HYPOTHEC

As security for the Obligations, as defined in Section 5, the Grantor hereby hypothecates (the hypothec created hereby being hereinafter called the “ Hypothec ”) the Charged Property (as defined in Section 3) in favour of the Creditor, for a principal amount of $1,587,000,000, plus an additional amount equal to twenty percent (20%) thereof to secure all costs, accessories and incidental expenses, the whole with interest from the date of this Deed at the rate of twenty-five percent (25%) per annum, calculated daily and compounded monthly, with interest on overdue interest calculated at the same rate and in the same manner.

 

3. DESCRIPTION OF CHARGED PROPERTY

The property charged by the Hypothec consists of the following securities (the “ Securities ”) owned by the Grantor and which are held by the Creditor or a third Person:

 

Number of shares, bonds, or other

instruments

 

Description of the Securities and names of

debtors appearing on the instruments or notes

  shares/units of ● registered in the name of the Grantor and evidenced by certificate ●

together with the following present and future property, without limiting the charges, hypothecs and rights arising by operation of law:

a) renewals, replacements and substitutions of, and additions to, the Securities, whether arising out of a purchase, redemption, conversion, cancellation or any other transformation of the Securities;

b) the proceeds, fruits and revenues of the Securities, including (by way of example and without limitation) cash, bank accounts, notes, negotiable instruments, bills, commercial paper, securities, monies, goods, contract rights, and any other movable property, corporeal or incorporeal, received when any of the Securities is sold, exchanged, collected or otherwise disposed of;

c) any right pertaining to the Securities; and

d) any other property delivered at any time to the Creditor,

(collectively, the “ Charged Property ”).

 

4. ADDITIONAL PROVISIONS

 

4.1. Transfer into Creditor’s Name

The Grantor authorizes the Creditor, at any time following an Event of Default, to transfer any Charged Property or any part thereof into its own name or that of its nominee(s) in its capacity as hypothecary creditor so that the Creditor or its nominee(s) may appear as the sole registered owner thereof.


4.2. Voting, etc.

Until the occurrence of an Event of Default which has not been waived, the Grantor shall be entitled to vote any and all Securities and to give consents, waivers, or ratifications in respect thereof, provided that no vote shall be cast or any consent, waiver, or ratification given or any action taken which would violate or be inconsistent with any of the terms of the Credit Agreement or this Deed or any other instrument or agreement relating to the Obligations or which would have the effect of materially impairing the position and interests of the Creditor. All such rights of the Grantor to vote and give consents, waivers and ratifications shall cease in case an Event of Default shall occur which has not been waived whereupon the Creditor shall be entitled, without limiting its other rights and remedies hereunder, to vote all or any part of the Securities whether or not transferred into the Creditor’s name and give all consents, waivers and ratifications in respect of the Securities and otherwise act with respect thereto as though it were the outright owner thereof.

 

4.3. Dividends and other Distributions

Subject to the applicable provisions of the Credit Agreement, if any and so long as an Event of Default has not occurred which has not been waived, the Grantor may collect all cash dividends payable in respect of the Securities, provided that all cash dividends payable in respect of the Securities which are determined by the Creditor, in its absolute discretion, to represent in whole or in part an extraordinary, liquidating or other distribution in return of capital, shall be paid to the Creditor and retained by it as part of the Charged Property.

 

4.4. Standard of Care

The Creditor shall have no obligation to protest any of the Charged Property, to take any steps to interrupt prescription, to protect the Charged Property against any depreciation or reduction in value, to make any productive use of the Charged Property, or to protect the Grantor against any loss relating in any way to the Charged Property. In addition, the Creditor shall not be obliged to vote with respect to any of the Charged Property in connection with any subscription, conversion or other right relating to the Charged Property, nor in connection with any other matters or proceedings relating to the Charged Property, except where the Creditor is specifically requested in writing to do so and is provided with an indemnity and security which the Creditor considers sufficient, acting reasonably, together with payment of a reasonable fee to be established by the Creditor.

Without prejudice to its other rights hereunder, the Creditor may, at its discretion, comply with all provisions of law with which the holder of any securities comprised within the Charged Property from time to time is required to comply.


5. SECURED OBLIGATIONS

The Hypothec shall secure the performance of all of the obligations of the Grantor to the Creditor (in its aforesaid capacities) arising under or in connection with the Guarantee and the Loan Documents to which it is a party, as from time to time heretofore or hereafter amended, supplemented, amended and restated or otherwise modified from time to time, and all of its obligations to the Creditor hereunder (collectively the “ Obligations ”).

The Grantor shall be deemed to have once again obligated itself to perform any future obligation forming part of the Obligations in accordance with the provisions of Article 2797 of the Civil Code.

If the proceeds of realization of the Charged Property following an Event of Default are not sufficient to satisfy all Obligations, the Grantor acknowledges and agrees that the Grantor shall continue to be liable for any remaining Obligations and the Creditor shall remain entitled to full payment thereof.

 

6. REPRESENTATIONS AND WARRANTIES

The Grantor hereby reaffirms and renews the representations and warranties made by it in the Credit Agreement, and in addition represents and warrants as follows:

 

6.1. Shareholders’ Agreement - Securities

There exists no restriction in the articles, other constating documents or in any agreement, including any shareholders’ agreement, that is binding upon the Grantor regarding the assignment or transfer of the Securities which has not been complied with or waived, save and except the required consent of the management committee of ● with respect to the transfer of the Securities.

 

7. COVENANTS

The Grantor hereby reiterates the covenants made by it in the Credit Agreement and further covenants and agrees as follows:

 

7.1. Delivery

It shall immediately remit to the Creditor, or a Person designated by the Creditor, all of the Securities that it owns and shall immediately so remit any Charged Property which comes into the possession of the Grantor, together with any power of attorney, document and confirmation that the Creditor may reasonably request in order to transfer the Charged Property, at any time following an Event of Default, into the name of the Creditor or its nominee.


7.2. Payment of Legal Fees and Other Expenses

It shall:

a) pay all costs and expenses related to the exercise of all rights created hereby. Such costs and expenses shall include all reasonable fees and expenses of consultants, mandataries or legal counsel retained in case of default; and

b) reimburse the Creditor for all costs and expenses incurred by it for the purpose of carrying out the Grantor’s obligations or of exercising its rights;

provided, however, that the obligations arising from this Section 7.2 shall not exceed 20% of the principal amount of the Hypothec.

 

7.3. Rank of Hypothec

The Hypothec shall always create a first ranking hypothec on the Charged Property (subject only to Permitted Charges).

 

8. EVENTS OF DEFAULT

The Grantor shall be in default hereunder upon the occurrence of an Event of Default (any such occurrence being referred to herein as an “ Event of Default ”).

 

9. CREDITOR’S RECOURSES UPON AN EVENT OF DEFAULT

 

9.1. Surrender

The Grantor shall be deemed to have voluntarily surrendered the Charged Property to the Creditor if it has not opposed the Creditor’s recourse within 20 days of its receipt of a prior notice of the exercise of hypothecary rights.

 

9.2. Additional Rights

In order to protect or to realize upon the Charged Property, the Creditor shall be free, at the Grantor’s expense, at any time following an Event of Default which is continuing, to do any or all of the following:

a) alienate or dispose of any Charged Property which may depreciate rapidly;

b) perform any of the Grantor’s obligations;

c) exercise any right attached to the Charged Property;

d) acquire the Charged Property.

The Creditor shall not be bound to exercise the same hypothecary rights against all of the Charged Property, and may exercise different rights against different types of Charged Property or even against different elements of the Charged Property which are of the same type.


9.3. Good Faith

The Creditor shall exercise its rights in good faith, in a reasonable manner, taking into account all circumstances, in order to attempt to reduce the obligations of the Grantor to the Creditor.

 

9.4. Relations with the Grantor and Others

The Creditor may grant extensions of time and other indulgences, take and give up security, accept compositions, grant releases and discharges and otherwise deal with the Grantor, with other Persons and with the Charged Property as the Creditor may see fit without diminishing the liability of the Grantor and without prejudice to the Creditor’s rights pursuant to this Deed.

 

9.5. No Security by Creditor

The Creditor shall not be bound to make an inventory, to take out insurance or to furnish any security of any nature whatsoever.

 

9.6. Special Provisions - Taking in Payment

If the Creditor elects to exercise its right to take in payment and the Grantor requires that the Creditor instead sell the Charged Property on which such right is exercised, the Grantor hereby acknowledges that the Creditor shall not be bound to abandon its action in taking in payment unless, prior to the expiry of the time period allocated for surrender, the Creditor:

a) has been granted security satisfactory to it to ensure that the proceeds of sale of the Charged Property will be sufficient to enable the Creditor to be paid in full;

b) has been reimbursed for all costs and expenses incurred in connection with this Deed, including all fees of consultants and legal counsel; and

c) has been advanced the necessary sums for the sale of the Charged Property.

The Grantor further acknowledges that the Creditor alone is entitled to select the type of sale it may wish to conduct or have conducted.

 

9.7. Sale by the Creditor

Where the Creditor sells the Charged Property itself, it shall not be required to obtain any prior valuation by a third party. The Creditor may elect to sell the Charged Property with legal warranty given by the Grantor or with a complete or partial exclusion of such warranty.

 

10. MISCELLANEOUS

 

10.1. Hypothec Constitutes Additional Security

The Hypothec created hereby is in addition to and not in substitution or replacement for any other hypothec or security held by the Creditor.


10.2. Investment of Charged Property

The Creditor shall be free to invest any monies or instruments received or held by it in pursuance of this Deed or to deposit same in a non-interest bearing account without having to comply with any provisions of the Civil Code concerning the investment of the property of others.

 

10.3. Recourses Cumulative

The rights and recourses of the Creditor under this Deed are cumulative and do not exclude any other rights and recourses which the Creditor might have. No omission or delay on the part of the Creditor in the exercise of any right shall have the effect of operating as a waiver of such right. The partial or sole exercise of a right or power will not prevent the Creditor from exercising thereafter any other right or power.

 

10.4. Severability

Any provision of this Deed which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be of no effect to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

 

10.5. Amendment

No amendment to this Deed will be valid or binding unless set forth in writing and duly executed by the Grantor and the Creditor, duly authorized by the Lenders in accordance with the provisions of the Credit Agreement. No waiver of any breach of any provision of this Deed will be effective or binding unless made in writing and signed by the Creditor, duly authorized by the Lenders in accordance with the provisions of the Credit Agreement and, unless otherwise provided in the written waiver, will be limited to the specific breach waived.

 

10.6. Delegation

The Creditor shall be free to delegate to any Person or Persons the exercise of its rights, actions or the performance of any covenant resulting from this Deed or law; in such case, the Creditor may supply such Person with any information it holds relating to the Grantor or to the Charged Property.

 

10.7. Performance by Creditor

At any time following the occurrence of an Event of Default and while same subsists, the Creditor shall be free to perform any of the Grantor’s obligations under this Deed. It may then immediately request payment of any expense incurred in doing so, including interest on the Prime Rate Basis.


10.8. Creditor as Mandatary

The Creditor is hereby designated, effective upon the occurrence of an Event of Default and while same subsists, as the irrevocable mandatary of the Grantor with full powers of substitution for the purposes of Section 10.7 or for the purpose of carrying out any and all acts and executing any and all deeds, proxies or other documents which the Creditor may deem useful in order to exercise its rights or which the Grantor neglects or refuses to execute or to carry out.

 

10.9. Liability of Creditor

The Creditor shall not be liable for material injuries resulting from its fault, unless such fault is gross or intentional. The Creditor shall not be responsible for any loss occasioned by its taking possession of Charged Property or enforcing the terms of this Deed, nor for any neglect, failure or delay in exercising or enforcing any of its rights and recourses, nor for any act, default or misconduct of any agent, mandatary, broker, officer, employee or other Person acting for or on behalf of the Creditor. The Creditor shall be accountable only for such monies as it shall actually receive. The liability of the Creditor or, if applicable, the third party appointed to hold the Charged Property, shall be limited to exercising in regard to the Charged Property the same degree of care which it gives to similar property held at the same location.

 

10.10. Benefit of Agreement

The rights hereby conferred upon the Creditor shall benefit all of its successors, including any entity resulting from the merger of the Creditor with any other Person or Persons.

 

10.11. Notice

Any notice to the Grantor or the Creditor shall be delivered in the manner set forth in the Credit Agreement.

 

10.12. Understanding of Grantor

The Grantor hereby acknowledges having read this Deed and having received adequate explanations as to the nature and scope of its provisions and as to the obligations deriving therefrom.

 

10.13. Governing Law

This Deed shall be governed by and construed in accordance with the laws of the Province of Quebec.

 

10.14. Language

The parties acknowledge that they have required that the present Deed, as well as all documents, notices and legal proceedings executed, given or instituted pursuant or relating directly or indirectly hereto, be drawn up in English. Les parties reconnaissent avoir exigé la rédaction en anglais du présent acte, ainsi que de tous documents exécutés, avis donnés et procédures judiciaires intentées à la suite de ou relativement à celui-ci, que ce soit directement ou indirectement.


SIGNED as of the date and at the place first hereinabove mentioned.

 

 
By:  

 

Name:  
Title:  

ACCEPTED AND AGREED THIS         day of ●, 20●.

 

ROYAL BANK OF CANADA , in its aforementioned capacities
By:  

 


SCHEDULE “F” - OFFICER’S CERTIFICATE

I, the undersigned,                             , solely in my capacity as                             of Vidéotron Ltée (the “ Borrower ”), and not in my personal capacity, do hereby certify as follows:

 

  (a) I have taken cognizance of all the terms and conditions of the Amended and Restated Credit Agreement (the “ Credit Agreement ”) dated as of July 20, 2011, entered into, inter alia , among the Borrower, Royal Bank of Canada, as Agent and Lender, and the Lenders party thereto, as well as of all contracts, agreements and deeds pertaining thereto; and

 

  (b) no Default or Event of Default has occurred nor exists thereunder; and

 

  (c) the corporate structure of the VL Group is as set out in the diagram attached to this certificate;

 

  (d) each member of the VL Group holds the permits, Licences, licences and authorizations required in order to permit it to possess its property and its real estate and to carry on its business in the manner in which it is being carried on at present; and

 

  (e) all property to be charged by the Security Documents is located in the jurisdictions described in a schedule hereto.

All expressions referred to herein have the meanings ascribed to them in the Credit Agreement.

Executed at the City of Montreal, Province of Quebec this 20 th day of July, 2011.

 

 


SCHEDULE “G” - INTENTIONALLY DELETED


SCHEDULE “H” – EXISTING DEBT FROM ADDITIONAL OFFERINGS, AT THE CLOSING DATE

 

Description

  

Amount

 

6 7/8% Senior Notes due 2014

   US$ 650,000,000   

6 3/8% Senior Notes due 2015

   US$ 175,000,000   

9 1/8% Senior Notes due 2018

   US$ 715,000,000   

7 1/8% Senior Notes due 2020

   Cdn.$ 300,000,000   

6 7/8% Senior Notes due 2021

   Cdn.$ 300,000,000   


SCHEDULE “I” – PROPERTY OF THE VL GROUP

 

1. List of immovable properties owned by members of the VL Group:

 

  (i) Vidéotron Ltée

 

     200, rue Claire-Fontaine ouest       Alma    Québec
     Chemin Belter, Partie du lot 8C 5ième rang, (Buckingham)       Ange-Gardien    Québec
     1015, Monseigneur de Laval       Baie Saint-Paul    Québec
     367, rue de la Briquade       Blainville    Québec
     113, rue Rivière       Bromont    Québec
     42 rue Pelletier       Cabano    Québec
     221 Boul. Springer       Chapais    Québec
     385 rue Gagnon       Chibougamau    Québec
     111 et 113 rue Vallilée       Chûte aux Outardes    Québec
     306 Chemin Bellevue       Coaticook    Québec
     Anse to Norbert, Lot 47-1 du rang 5       Colombier    Québec
     798 Chemin St-Jacques       Crabtree    Québec
     1370, rue des Érables       Dolbeau-Mistassini    Québec
     1650, rue Bernier       Drummondville    Québec
     190 rue Edmonton, arrondissement Hull       Gatineau    Québec
     407, Boul. Saint-René E       Gatineau    Québec
     210, rue St-Urbain       Granby    Québec
     27 rue Claude-Jodoin       Kirkland    Québec
     60, rue Dassylva, Ptie du lot 169, Rang Ste-Mathilde       La Malbaie    Québec
     Chemin des loisirs, Lots 602-661       La Malbaie    Québec
     88 avenue Bouchard est       La Pocatière    Québec
     137, rue Millway       Lachute    Québec
     202, route 170       L’Anse-Saint-Jean    Québec
     122 - 124 , rue Olivier       Laurier-Station    Québec
     1 rue de la Station       Laval    Québec
     3665 rue Ste-Rose       Laval    Québec
     223 route des Îles       Lévis    Québec
     1072, Boul. Taschereau       Longueuil    Québec
     3700 boul. Losch, Arrondissement St-Hubert       Longueuil    Québec
     3750 rue Richelieu, Arrondissement St-Hubert       Longueuil    Québec
     1880, boul. Industriel       Magog    Québec
     31 rue Comeau       Maniwaki    Québec
     397 Boul. St-Jean Baptiste       Mercier    Québec
     61 2e Rang ouest, (Partie du lot 45A-54 du rang), Lac to la Croix       Métabetchouan    Québec
     Chemin du Sous-bois, Lot 160-P et 166-P       Mont St-Grégoire    Québec
     207, rue Villeneuve       Mont-Laurier    Québec
     1217 Notre-Dame Est       Montréal    Québec
     14,165 rue Cherrier       Montréal    Québec
     150, rue Beaubien ouest       Montréal    Québec
     2155 Boul. Pie IX       Montréal    Québec
     2835 boul. Pitfield, arrondissement Saint-Laurent       Montréal    Québec
     4002 rue Ethel, arrondissement Verdun       Montréal    Québec
     8100, rue Edison, arrondissement Anjou       Montréal    Québec
     8101, boul. Métropolitain est, arrondissement Anjou       Montréal    Québec
     4761, avenue Desjardins       Notre-Dame de la Doré    Québec
     125, rue St-Jacques       Notre-Dame de Portneuf    Québec
     103, rue Major       Papineauville    Québec


     638 rue Principale       Pohenegamook    Québec
     2125, rue Branly, arrondissement Ste-Foy       Québec    Québec
     2200, rue Jean-Perrin       Québec    Québec
     Côte-Bédard, Lot 1338490       Québec    Québec
     53 Montée Taillardat, rang 1, Lot 31-18-21       Ragueneau    Québec
     432, rue Félix-Duclos, arrondissement Le Gardeur       Repentigny    Québec
     166, 9ième avenue       Richmond    Québec
     2830, rue Galt Ouest       Sherbrooke    Québec
     254 chemin des Patriotes       Sorel    Québec
     258 Chemin des Patriotes       Sorel    Québec
     35 Route 277 (533 Rte Bégin)       St-Anselme    Québec
     Chemin Beaudoin, (Beebe)       Stanstead    Québec
     Côte Ste-Anne, Partie du lot 223-25       Ste-Anne-de-Beaupré    Québec
     Rang Taché est, lot 27-3 Rg A, Canton de Lafontaine       Ste-Perpétue    Québec
     384, rue du Parc       St-Eustache    Québec
     1183 rue Dufresne       St-Félicien    Québec
     1258, boul. Sacré-Coeur       St-Félicien    Québec
     rue Landry, Lot 34-B6       St-Honoré    Québec
     6995, rue Picard       St-Hyacinthe    Québec
     969, Boul. St-Antoine       St-Jérôme    Québec
     Chemin de Desserte Sud       St-Louis de Blandford    Québec
     4207, rue Bernard-Pilon       St-Mathieu de Beloeil    Québec
     318 avenue Lajoie       St-Pascal de Kamouraska    Québec
     Rang 4 lot 12A-27       St-Paul-de-Montminy    Québec
     150 rue St-David       St-Siméon    Québec
     720, rang Brulé       St-Thomas    Québec
     1540 chemin St-Charles, (Lachenaie)       Terrebonne    Québec
     664 St-Désiré       Thetford Mines    Québec
     144 rue St-Laurent, (Cap-de-la-Madeleine)       Trois-Rivières    Québec
     rue des Prairies, Lots 556-13, 556-14, (Cap-de-la-Madeleine)       Trois-Rivières    Québec
     Ptie lot 272-30       Varennes    Québec
     2476, rue Henry-Ford       Vaudreuil, Dorion    Québec
     2785 chemin St-Antoine       Vaudreuil, Dorion    Québec
     290, rue Notre-Dame       Victoriaville    Québec
     298 to 300 rue Notre-Dame       Victoriaville    Québec
     Lot 981-2       Waterloo    Québec
-     

The cable television networks and cable lines and systems including, without limiting the foregoing, the following land files opened at the Register of Public Service Networks and Immovables situated in the following registration divisions:

-     

ARGENTEUIL

   74-B-9      
        74-B-11      
        74-B-12      
        74-B-13      
        74-B-14      
        74-B-15      
        74-B-16      
        74-B-17      
-     

ARTHABASKA

   34-B-179      
        34-B-180      
        34-B-181      
        34-B-199      


-     

BEAUCE

   23-B-15 278      
-     

BEAUHARNOIS

   70-B-9      
        70-B-10      
        70-B-11      
        70-B-12      
        70-B-14 to 70-B-181   
-     

BELLECHASSE

   15-B-1      
        15-B-3      
        15-B-7      
        15-B-8      
        15-B-93 to 15-B-116   
-     

BERTHIER

   49-B-36      
        49-B-37      
        BROME      
        38-B-1088      
        38-B-1089      
-     

CHAMBLY

   56-B-116      
        56-B-117      
        56-B-125      
-     

CHAMPLAIN

   32-B-18      
        32-B-19      
-     

CHARLEVOIX NO. 1

   11-B-18      
        11-B-19      
        11-B-23 to 11-B-190   
-     

CHARLEVOIX NO. 2

   12-B-13 to 12-B-120   
-     

CHÂTEAUGUAY

   69-B-10      
        69-B-11      
-     

CHICOUTIMI

   94-B-164      
        94-B-165      
        94-B-167      
        94-B-168      
        94-B-18 637 to 94-B-18 744   
-     

COATICOOK

   59-B-497      
        59-B-498      
        59-B-499      
        59-B-500      
-     

COMPTON

   25-B-1163      
        25-B-1164      
        25-B-1165      
        25-B-1166      


        25-B-1167      
        25-B-1168      
        25-B-1169      
        25-B-1170      
-     

DEUX-MONTAGNES

   73-B-6      
        73-B-8      
        73-B-16      
        73-B-17      
        73-B-18      
        73-B-19      
-     

DORCHESTER

   22-B-12      
        22-B-53      
        22-B-54      
-     

DRUMMOND

   41-B-9759      
-     

GATINEAU

   78-B-12      
        78-B-13      
        78-B-14      
        78-B-15      
        78-B-16      
        78-B-17      
        78-B-18      
        78-B-19      
-     

HULL

   79-B-6      
        79-B-7      
-     

JOLIETTE

   58-B-19      
        58-B-20      
-     

KAMOURASKA

   10-B-8      
        10-B-9      
        10-B-12      
        10-B-13      
        10-B-14      
        10-B-15      
        10-B-16      
        10-B-17      
        10-B-18      
        10-B-19      
        10-B-344 to 10-B-391   
-     

LABELLE

   76-B-15      
        76-B-16      
-     

LAC-ST-JEAN-EST

   93-B-953 to 93-B-1090   
-     

LAC-ST-JEAN-OUEST

   90-B-147      
        90-B-148      
        90-B-1 291 to 90-B-1 482   


-     

LAPRAIRIE

   66-B-1053      
        66-B-1054      
-     

L’ASSOMPTION

   62-B-9      
        62-B-10      
        62-B-11      
        62-B-12      
        LAVAL      
        64-B-6      
        64-B-7      
        64-B-8      
        64-B-9      
        LÉVIS      
        21-B-127      
        21-B-128      
        21-B-669 to 21-B-824   
-     

L’ISLET

   13-B-13      
        13-B-14      
        13-B-15      
        13-B-16      
        13-B-17      
        13-B-18      
        13-B-19      
        13-B-20      
        13-B-21      
        13-B-22      
        13-B-23      
        13-B-24      
        13-B-109 to 13-B-132   
-     

LOTBINIÈRE

   28-B-1      
        28-B-113      
        28-B-117      
        28-B-118      
-     

MASKINONGÉ

   47-B-17      
-     

MISSISQUOI

   54-B-1366      
        54-B-1367      
        54-B-1368      
        54-B-1369      
        54-B-1370      
        54-B-1371      
        54-B-1372      
        54-B-1373      
        54-B-1375      
-     

MONTCALM

   61-B-13      
        61-B-16      
        61-B-17      
-     

MONTMAGNY

   14-B-1      
        14-B-4      


        14-B-7      
        14-B-8      
        14-B-15      
        14-B-16      
        14-B-101 to 14-B-124   
-     

MONTMORENCY

   17-B-29      
        17-B-42      
        17-B-43      
-     

MONTRÉAL

   65-B-3246      
        65-B-3247      
        65-B-3248      
        65-B-3249      
        65-B-3250      
        65-B-3251      
        65-B-3252      
        65-B-3253      
        65-B-3254      
        65-B-3255      
        65-B-3256      
        65-B-3257      
-     

NICOLET (NICOLET 2)

   46-B-238 and 46-B-239   
        46-B-226 to 46-B-237   
        46-B-240 to 46-B-261   
        46-B-370      
-     

PAPINEAU

   75-B-15      
        75-B-16      
        75-B-17      
        75-B-18      
        75-B-19      
        75-B-20      
-     

PORTNEUF

   29-B-41      
        29-B-42      
        29-B-43      
        29-B-44      
-     

QUÉBEC

   20-B-120      
        20-B-126      
        20-B-127      
        20-B-128      
        20-B-129      
        20-B-226 to 20-B-357   
        20-B-10730 to 20-B-10969   
-     

RICHELIEU

   50-B-4      
        50-B-6      
        50-B-7      
        50-B-8      
        50-B-9      


-     

RICHMOND

   35-B-6      
        35-B-7      
        35-B-11      
        35-B-12      
        35-B-13      
        35-B-14      
-     

RIMOUSKI

   07-B-8      
        07-B-20      
        07-B-42      
        07-B-335 to 07-B-406   
-     

ROUVILLE

   52-B-121      
        52-B-122      
        52-B-123      
        52-B-124      
        52-B-125      
        52-B-126      
-     

SAGUENAY

   97-B-41      
        97-B-42      
        97-B-43      
        97-B-44      
        97-B-45      
        97-B-46      
        97-B-47      
        97-B-48      
-     

SAINT-HYACINTHE

   51-B-117      
        51-B-124      
        51-B-133      
        51-B-134      
        51-B-135      
        51-B-136      
-     

SAINT-JEAN

   55-B-1135      
        55-B-1136      
-     

SHAWINIGAN

   45-B-101      
-     

SHEFFORD

   39-B-256      
        39-B-257      
        39-B-258      
        39-B-259      
        39-B-260      
        39-B-261      
-     

SHERBROOKE

   36-B-1584      
        36-B-1585      
        36-B-1586      
        36-B-1587      
        36-B-1588      
        36-B-1589      
        36-B-1590      


        36-B-1591      
        36-B-1592      
        36-B-1593      
        36-B-1594      
        36-B-1595      
        36-B-1596      
        36-B-1597      
        36-B-1598      
        36-B-1600      
        36-B-1602      
-     

STANSTEAD

   37-B-10      
        37-B-11      
-     

TÉMISCOUATA

   09-B-64      
        09-B-65      
        09-B-66      
        09-B-67      
        09-B-346 to 09-B-417   
-     

TERREBONNE

   63-B-25      
        63-B-26      
        63-B-27      
        63-B-28      
        63-B-29      
        63-B-30      
        63-B-31      
        63-B-32      
-     

THETFORD

   30-B-13      
        30-B-14      
-     

TROIS-RIVIÈRES

   44-B-8      
        44-B-9      
        44-B-10      
        44-B-33 to 44-B-34   
        44-B-21 to 44-B-32   
        44-B-35 to 56   
        44-B-165      
-     

VAUDREUIL

   72-B-12      
        72-B-13      
        72-B-14      
        72-B-15      
        72-B-545 to 72-B-713   
-     

VERCHÈRES

   57-B-114      
        57-B-116      
        57-B-117      


(ii)     

Vidéotron G.P.

        
-     

rue Saint-Jacques

   St-Jean sur Richelieu    Québec
-     

The cable television networks and cable lines and systems including, without limiting the foregoing, the land files opened at the Register of Public Service Networks and Immovables situated in all registration divisions of the Land Registry Office of Québec including the following:

-     

BEAUCE

   23-B-15 279      
-     

CHAMBLY

   56-B-960      
-     

DEUX-MONTAGNES

   73-B-978      
-     

DRUMMOND

   41-B-9 761      
-     

GATINEAU

   78-B-4 286      
-     

HULL

   79-B-641      
-     

MISSISQUOI

   54-B-1 424      
-     

MONTMORENCY

   17-B-82      
-     

MONTRÉAL

   65-B-56 530      
-     

PAPINEAU

   75-B-5 552      
-     

QUÉBEC

   20-B-12 400 20-B-12 405   
-     

RICHMOND

   35-B-5 931      
-     

SHERBROOKE

   36-B-8 994      
-     

TERREBONNE

   63-B-11 499      
-     

VAUDREUIL

   72-B-3 695      

 

2. List of premises occupied by members of the VL Group

 

  (i) Vidéotron Ltée

 

  612 rue Saint-Jacques, Montréal Québec H3C4M8

 

  (ii) 9230-7677 Québec Inc.

 

  612 rue Saint-Jacques, Montréal Québec H3C4M8

 

  (iii) Vidéotron S.E.C. / Videotron L.P.

 

  612 rue Saint-Jacques, Montréal Québec H3C4M8


  (iv) 9227-2590 Québec Inc.

 

  612 rue Saint-Jacques, Montréal Québec H3C4M8

 

  (v) Vidéotron S.E.N.C. / Videotron G.P.

 

  612 rue Saint-Jacques, Montréal Québec H3C4M8

 

  -      Leased sites for antennas in theProvince of Québec      
  -      1405, Pentecostal Road    Cobourg    Ontario
  -      3500, Ave Steeles    Markham    Ontario
  -      3240, Rte Mavis    Mississauga    Ontario
  -      6535, Blv. Millcreek    Mississauga    Ontario
  -      861, Redwook Square    Mississauga    Ontario
  -      1200 boul St-Laurent, (St-Laurent Shopping Centre)    Ottawa    Ontario
  -      250, Albert Street    Ottawa    Ontario
  -      403, Somerset Street    Ottawa    Ontario
  -      100, King Street West    Toronto    Ontario
  -      100, Wellington Street    Toronto    Ontario
  -      101, Bloor Street    Toronto    Ontario
  -      130, Adelaide St. West    Toronto    Ontario
  -      130, King Street West    Toronto    Ontario
  -      151, Front Street    Toronto    Ontario
  -      161, Bay Street    Toronto    Ontario
  -      20 Bay Street    Toronto    Ontario
  -      20/40 Dundas/595 Bay Street    Toronto    Ontario
  -      200, Bay Street, North Tower Royal Bank Plaza    Toronto    Ontario
  -      222, Bay Street    Toronto    Ontario
  -      245, Consumers    Toronto    Ontario
  -      25, Adelaide Street East    Toronto    Ontario
  -      250, Yonge Street    Toronto    Ontario
  -      320, Bay Street    Toronto    Ontario
  -      333 King Street East    Toronto    Ontario
  -      333, King East    Toronto    Ontario
  -      4, Banigan Blvd.    Toronto    Ontario
  -      4100 Yonge Street    Toronto    Ontario
  -      438, University Street    Toronto    Ontario
  -      60, Adelaide Street East    Toronto    Ontario
  -      60, Bloor Street    Toronto    Ontario
  -      66, Wellington St. West    Toronto    Ontario
  -      777, Bay Street    Toronto    Ontario
  -      95, Wellington Street    Toronto    Ontario
  -      7999, boul. Galeries d’Anjou, Kiosque #Z-035, Les Galeries d’Anjou    Anjou    Québec
  -      115 rue Principale    Aylmer    Québec
  -      1011, rue Larue    Beauport    Québec
  -      600, Sir Wilfrid Laurier, #K-9, (Mail Montenach)    Beloeil    Québec
  -      650 chemin du Lac    Boucherville    Québec
  -      2151, Boul. Lapinière    Brossard    Québec
  -      6955, Boul. Taschereau    Brossard    Québec


  -      9380, rue Leduc suite 45    Brossard    Québec
  -      190 rue Fusey    Cap-de-la-Madeleine    Québec
  -      1401, Boul. Talbot    Chicoutimi    Québec
  -      21, rue Racine ouest    Chicoutimi    Québec
  -      745, 43ième avenue, et 10,425 Côte de Liesse    Dorval    Québec
  -      755 René-Lévesque, Kiosque #03060,    Drummondville    Québec
       Les Promenades Drummondville      
  -      1100, Boul. Maloney ouest    Gatineau    Québec
  -      1160, boul. St-Joseph    Gatineau    Québec
  -      171-A, rue Jean-Proulx, arrondissement Hull    Gatineau    Québec
  -      320, Boul. St-Joseph    Gatineau    Québec
  -      500, rue Gréber    Gatineau    Québec
  -      40, rue Évangeline    Granby    Québec
  -      619, rue Cowie    Granby    Québec
  -      1075 Firestone, Magasin #1070    Joliette    Québec
  -      1075, Boul Firestone    Joliette    Québec
  -      480, rue St-Pierre    Joliette    Québec
  -      175, (PDLN-PDLS)    Lac Jacques Cartier    Québec
  -      7077, Newman    Lasalle    Québec
  -      1600, boul. Le Corbusier, Local 117, Centre Laval    Laval    Québec
  -      2205, rue Francis-Hugues    Laval    Québec
  -      3003, Boul. Le Carrefour,    Laval    Québec
       Kiosque ZM09 & magasin A016      
  -      3665 boul. Ste-Rose    Laval    Québec
  -      317, rue Marion    Legardeur    Québec
  -      631 route 138, Longue Rive    Les Escoumins    Québec
  -      1200 Alphonse-Desjardins, 3100,    Lévis    Québec
       (Les Galeries Chagnon)      
  -      6600, Boul. de la Rive-Sud    Lévis    Québec
  -      1111 rue St-Charles O., local 130, 135 et 5e étage    Longueuil    Québec
  -      80, rue St-Laurent    Longueuil    Québec
  -      825, rue Saint-Laurent Ouest    Longueuil    Québec
  -      2305, Chemin Rockland,    Mont Royal    Québec
       Kiosque K135 & Entrepôt E281      
  -      4480, rue Côte-de-Liesse    Mont Royal    Québec
  -      1PlaceVilleMarie    Montréal    Québec
  -      1000, rue Gauchetière ouest    Montréal    Québec
  -      1080, rue Beaver Hall    Montréal    Québec
  -      1190-1192, Ste-Catherine ouest    Montréal    Québec
  -      1205, rue Papineau    Montréal    Québec
  -      1441, rue Carrie-Derick    Montréal    Québec
  -      150, rue Beaubien ouest, Stationnement Home Depot    Montréal    Québec
  -      1500, avenue Atwater, Plaza Alexis-Nihon    Montréal    Québec
  -      1550, rue Metcalfe (1455 Peel)    Montréal    Québec
  -      1755, Boul. René-Lévesque Est, Local 003    Montréal    Québec
  -      1801 McGill College, 8e étage    Montréal    Québec
  -      1981, rue McGill College    Montréal    Québec
  -      2000, rue Berri    Montréal    Québec
  -      2150 rue Moreau    Montréal    Québec
  -      249, rue St-Antoine ouest    Montréal    Québec
  -      3, Complexe-Desjardins,    Montréal    Québec
       Espace N1-4, N2-23, E2-23,S2-3      
  -      405, rue Ogilvy    Montréal    Québec
  -      4050, Boul. Rosemont    Montréal    Québec


  -      4201 Saint-Denis    Montréal    Québec
  -      4220, de Rouen    Montréal    Québec
  -      4500 rue Hochelaga    Montréal    Québec
  -      4545, rue Frontenac    Montréal    Québec
  -      5, Complexe Desjardins, Niveau Promenade    Montréal    Québec
  -      500, rue René-Lévesque Ouest    Montréal    Québec
  -      500, rue Sherbrooke Ouest    Montréal    Québec
  -      5252, rue Maisonneuve ouest    Montréal    Québec
  -      5800, rue St-Denis    Montréal    Québec
  -      612 Saint-Jacques    Montréal    Québec
  -      6528, rue Waverly    Montréal    Québec
  -      6600 rue Saint-Urbain    Montréal    Québec
  -      705, rue Ste-Catherine Ouest    Montréal    Québec
  -      7275 rue Sherbrooke est    Montréal    Québec
  -      7355, rue Coffee    Montréal    Québec
  -      740, rue Notre-Dame Ouest    Montréal    Québec
  -      800, de la Gauchetière ouest, Local #1160, Niveau 1,    Montréal    Québec
       Place Bonaventure      
  -      800, de la Gauchetière ouest, Local 1130, Niveau 1,    Montréal    Québec
       Place Bonaventure      
  -      8147 rue Sherbrooke    Montréal    Québec
  -      888 rue de Maisonneuve    Montréal    Québec
  -      2305 Chemin Rockland, Kiosque #K114    Mont-Royal    Québec
  -      KM 108, route 175    Parc des Laurentides    Québec
  -      KM 187, route 175    Parc des Laurentides    Québec
  -      237, rue Hymus    Pointe-Claire    Québec
  -      6801, route Trans-Canadienne    Pointe-Claire    Québec
  -      1000, Ave Myrand, arrondissement Ste-Foy    Québec    Québec
  -      1050 Lous-Alexandre-Taschereau,    Québec    Québec
       Adresse secondaire:, 1035, rue Chevrotière      
  -      150 René-Lévesque est    Québec    Québec
  -      150, Boul. René Lévesque, Local 202    Québec    Québec
  -      2700, Boulevard Laurier, arrondissement Ste-Foy    Québec    Québec
  -      552, Wilfrid-Hamel    Québec    Québec
  -      Les Galeries de la Capitale, 5401, boul. des Galeries    Québec    Québec
  -      100, Boul. Brien    Repentigny    Québec
  -      288, rue Pierre-Saindon    Rimouski    Québec
  -      15, rue de la Chute    Rivière-du-Loup    Québec
  -      401, Boul. Labelle    Rosemère    Québec
  -      3103 Boul. Royal, Plaza de la Mauricie, Kiosque #K4    Shawinigan    Québec
  -      3330 rue King Ouest    Sherbrooke    Québec
  -      Carrefour de L’Estrie    Sherbrooke    Québec
  -      262-274, boul. Fiset, Local 274    Sorel    Québec
  -      Les Promenades St-Bruno, 1, boul. des Promenades,    St-Bruno    Québec
       Kiosque #Z-037      
  -      3200, Boulevard Laframboise, Kiosque 5120,    St-Hyacinthe    Québec
       Galerie St-Hyacinthe      
  -      145, rue Latour    St-Jean sur Richelieu    Québec
  -      420, Boul. Industriel    St-Jean sur Richelieu    Québec
  -      600, rue Pierre-Caisse,    St-Jean sur Richelieu    Québec
       Carrefour Richelieu, Local 00442      
  -      900, boul. Grignon, (Carrefour du Nord)    St-Jérôme    Québec
  -      3131, Boul. Côte Vertu    St-Laurent    Québec
  -      3700, rue Griffith    St-Laurent    Québec


  -      6315, Chemin Côte-de-Liesse    St-Laurent    Québec
  -      3598, rue Bernard Pilon    St-Mathieu de Beloeil    Québec
  -      840, rue de L’Église    St-Romuald    Québec
  -      1185, boul. Moody, magasin 100,    Terrebonne    Québec
       (Galeries de Terrebonne)      
  -      1075, rue Champflour    Trois-Rivières    Québec
  -      Centre Commercial Les Rivières,    Trois-Rivières    Québec
       4225, Boul. des Forges, Kiosque #K87      
  -      1000, rue St-Charles    Vaudreuil, Dorion    Québec
  -      90, rue Charbonneau    Vaudreuil, Dorion    Québec
  -      5, rue Commerce    Verdun    Québec

 

  (vi) Videotron US Inc.

 

  Suite 1410, The Nemours Building, 1007 Orange Street, County of New Castle, Wilmington, Delaware, 19801, United States of America (Registered office)

 

  (vii) Vidéotron Infrastructures Inc.

 

  612 rue Saint-Jacques, Montréal Québec H3C4M8

 

  Leased sites for antennas in the Province of Québec

 

  (viii) Le SuperClub Vidéotron Ltée

 

  -      612 rue Saint-Jacques, Montréal Québec H3C4M8      
  -      305, rue Sherbrooke Ouest    Montréal    Québec
  -      4076, rue Wellington    Verdun    Québec
  -      184 Scott Street    St. Catharines    Ontario
  -      1040-1096 Princess St.    Kingston    Ontario
  -      125 Stewart Blvd.    Brockville    Ontario
  -      Heritage Sq.,6 Speers Blvd.    Amherstview    Ontario
  -      4245, rue Jean-Talon Est    Saint-Léonard    Québec
  -      3101, rue Masson    Montréal    Québec
  -      1747, rue Fleury Est    Montréal    Québec
  -      180, boul. d’Anjou    Châteauguay    Québec
  -      2930, ch. Chambly    Longueuil    Québec
  -      1027, boul. St-Joseph    Drummondville    Québec
  -      210, ch. d’Aylmer    Gatineau    Québec
  -      2309, rue St-Hubert    Jonquière    Québec
  -      12886, rue Sherbrooke Est    Pointe-aux-Trembles    Québec
  -      2552, rue Beaubien Est    Montréal    Québec
  -      66, boul. Jacques-Cartier Nord    Sherbrooke    Québec
  -      2635, av. Van Horne    Montréal    Québec
  -      5632, boul. Henri-Bourassa Est    Montréal-Nord    Québec
  -      2033, rue Principale    Sainte-Julie    Québec
  -      400, route 132, local 122    Saint-Constant    Québec
  -      840, boul. de l’Ange-Gardien Nord    L’Assomption    Québec
  -      690, ch. de St-Jean    La Prairie    Québec
  -      4250, 1 ère avenue, local 40A    Charlesbourg    Québec
  -      1300, boul. St-Jean Baptiste    Montréal    Québec
  -      3730, rue Ontario Est    Montréal    Québec


  -      426, rue Principale    Lachute    Québec
  -      5645, boul. Grande-Allée    Brossard    Québec
  -      5144, rue Frontenac    Lac-Mégantic    Québec
  -      882, boul. des Seigneurs    Terrebonne    Québec
  -      1205, rue de Neuville, local 103    Gatineau    Québec
  -      50 Main Street East    Hawkesbury    Ontario
  -      554, boul. St-Laurent,    Louiseville    Québec
  -      3343, rue Jarry Est    Montréal    Québec
  -      3759, ch. d’Oka    Saint-Joseph-du-Lac    Québec
  -      9770, rue Lajeunesse    Montréal    Québec
  -      346 North Front Street    Belleville    Ontario
  -      1080 Adelaide Street N.    London    Ontario
  -      1200 rue de la Faune    Québec    Québec
  -      100, boul. Brien    Repentigny    Québec
  -      2350, boul. Ste-Anne    Québec    Québec
  -      2236 Boul. Des Laurentides    Vimont, Laval    Québec
  -      3490, boul. des Forges    Trois-Rivières    Québec
  -      523, boul. Curé-Labelle    Fabreville    Québec
  -      1010, boul. King Est    Sherbrooke    Québec
  -      97, rue St-Germain Ouest    Rimouski    Québec
  -      9115, boul. de L’Ormière    Québec    Québec
  -      4073, boul. Royal    Shawinigan    Québec
  -      379, boul. Bois-Francs Sud    Victoriaville    Québec
  -      1330, av. du Mont-Royal Est    Montréal    Québec
  -      455, boul. de Mortagne    Boucherville    Québec
  -      355, boul. Gréber    Gatineau    Québec
  -      855, boul. René-Lévesque Ouest    Québec    Québec
  -      1, rue Dufferin    Salaberry-de-Valleyfield    Québec
  -      481, boul. des Laurentides    Saint-Jérôme    Québec
  -      2190, av. Larue    Beauport    Québec
  -      2600, boul. Casavant Ouest    Saint-Hyacinthe    Québec
  -      10750, boul. Lacroix    Saint-Georges    Québec
  -      7000, av. de la Plaza    Sorel-Tracy    Québec
  -      2105, boul. Curé-Labelle    Chomedey, Laval    Québec
  -      1000, rue Cours Le Corbusier    Boisbriand    Québec
  -      961, boul. Talbot    Chicoutimi    Québec
  -      199, boul. Labelle    Rosemère    Québec
  -      5780, boul. Gouin Ouest    Montréal    Québec
  -      150, boul. des Laurentides    Pont-Viau, Laval    Québec
  -      999, rue Pie XI    Thetford Mines    Québec
  -      1866, av. Industrielle    Val-Bélair    Québec
  -      803A, boul. Curé-Labelle    Blainville    Québec
  -      50, Route du Président Kennedy, Local 170    Lévis    Québec
  -      8256, boul. Maurice-Duplessis    Montréal    Québec
  -      8285, rue Notre-Dame Est    Montréal    Québec
  -      8675, boul. Viau    Saint-Léonard    Québec
  -      5965, rue de Verdun    Verdun    Québec
  -      6112, rue Sherbrooke Ouest    Montréal    Québec
  -      215, boul. Fiset    Sorel-Tracy    Québec
  -      5852, boul. Léger    Montréal-Nord    Québec
  -      965, boul. d’Auteuil    Duvernay, Laval    Québec
  -      84, boul. Industriel    Repentigny    Québec
  -      97, rue Principale Est    Farnham    Québec
  -      2815, ch. des Quatre-Bourgeois    Sainte-Foy    Québec


  -      1221, rue Charles-Albanel    Sainte-Foy    Québec
  -      350, rue Beaudry Nord    Joliette    Québec
  -      295, boul. Armand-Thériault    Rivière-du-Loup    Québec
  -      6425, rue Beaubien Est    Montréal    Québec
  -      19, rue Beausoleil    Saint-Gabriel-de-Brandon    Québec
  -      465, boul. du Pont    Saint-Nicolas    Québec
  -      1025, boul. Curé-Poirier Ouest    Longueuil    Québec
  -      6072, rue Sherbrooke Est    Montréal    Québec
  -      1135, rue Décarie    Saint-Laurent    Québec
  -      2700, boul. des Promenades    Deux-Montagnes    Québec
  -      511, boul. Royal    Malartic    Québec
  -      1258, 3e avenue    Val-d’Or    Québec
  -      25, boul. Don Quichotte    L’Île-Perrot    Québec
  -      203, 7e Avenue    Dolbeau-Mistassini    Québec
  -      4260, rue Ste-Catherine Est    Montréal    Québec
  -      299, boul. Sir Wilfrid-Laurier    Saint-Lambert    Québec
  -      1950, boul. Curé-Labelle    Saint-Jérôme    Québec
  -      161, 1re Avenue Ouest    Amos    Québec
  -      2619 boul. Louis XIV    Beauport    Québec
  -      600, boul. Jacques-Bizard    L’Île-Bizard    Québec
  -      1360, boul. Montarville    Saint-Bruno    Québec
  -      468, rue St-Patrice Ouest    Magog    Québec
  -      30, rue Morin    Sainte-Agathe-des-Monts    Québec
  -      1149, boul. de Ste-Adèle    Sainte-Adèle    Québec
  -      131 chemin du lac Millette, suite 101    Saint-Sauveur    Québec
  -      824, boul. Thibeau    Trois-Rivières    Québec
  -      585, av. St-Charles    Vaudreuil-Dorion    Québec
  -      250, boul. Sir Wilfrid-Laurier    Beloeil    Québec
  -      5253, av. du Parc    Montréal    Québec
  -      400, boul. du Séminaire Nord    St-Jean-sur-Richelieu    Québec
  -      720, Montée Paiement    Gatineau    Québec
  -      5178, ch. Queen Mary    Montréal    Québec
  -      5245, boul. Cousineau    Saint-Hubert    Québec
  -      2768, rue Laurier, CP 91    Rockland    Ontario
  -      168, 25e Avenue    Saint-Eustache    Québec
  -      354, boul. Arthur-Sauvé    Saint-Eustache    Québec
  -      1450, boul. Père-Lelièvre    Duberger    Québec
  -      5333, boul. Laurier, local 100    Terebonne (La plaine)    Québec
  -      241, boul. Samson    Sainte-Dorothée, Laval    Québec
  -      437, rue du Pont    Mont-Laurier    Québec
  -      1360, rue Notre-Dame    L’Ancienne-Lorette    Québec
  -      2020, boul. René-Gaultier    Varennes    Québec
  -      10A, boul. Georges-Gagné    Delson    Québec
  -      407, rue de St-Jovite    Mont-Tremblant    Québec
  -      912, rue Commerciale    Saint-Jean-Chrysostome    Québec
  -      81, boul. Taché Ouest    Montmagny    Québec
  -      85, av. Plante    Vanier    Québec
  -      7579, boul. Newman    LaSalle    Québec
  -      541, boul. Curé-Labelle    Chomedey, Laval    Québec
  -      1770, av. de L’Église    Montréal    Québec
  -      8465, boul. Henri-Bourassa    Charlesbourg    Québec
  -      5000, rue Wellington    Verdun    Québec
  -      3698, boul. Taschereau    Greenfield Park    Québec
  -      9295, rue Sherbrooke Est    Montréal    Québec


  -      535, rue Villeray    Montréal    Québec
  -      1264, rue Jean-Talon Est    Montréal    Québec
  -      477A Boul. Ste-Anne    Sainte-Anne-des-Plaines    Québec
  -      5760, boul. Jean XXIII    Trois-Rivières    Québec
  -      1397, 6 e Avenue    Grand-Mère    Québec
  -      8200, boul. Taschereau    Brossard    Québec
  -      1201, boul. de Périgny    Chambly    Québec
  -      420, rue St-Charles Ouest    Longueuil    Québec
  -      275, rue St-Antoine Nord    Lavaltrie    Québec
  -      7, rue Robert    Saint-Basile-Le-Grand    Québec
  -      1116, boul. Vachon Nord, cp.19    Sainte-Marie    Québec
  -      746, av. Buckingham, suite A    Buckingham    Québec
  -      10, rue Papineau    Joliette    Québec
  -      55, rue Marie de l’Incarnation    Québec    Québec
  -      2220, ch. Gascon    Terrebonne    Québec
  -      685, boul. Laure    Sept-Îles    Québec
  -      1001, boul. Laflèche    Baie-Comeau    Québec
  -      39, boul. St-Luc, local 100    Saint-Jean-sur-Richelieu    Québec
  -      199, route 138    Donnacona    Québec
  -      3440, ch. des Quatre-Bourgeois    Sainte-Foy    Québec
  -      18, rue du Manège    Coaticook    Québec
  -      515, boul. Lacombe    Le Gardeur    Québec
       1070, Montée Masson    Mascouche    Québec
  -      9, boul. de la Salette    Saint-Jérôme    Québec
  -      750, av. du Phare Ouest    Matane    Québec
  -      3465, boul. Dagenais Ouest    Fabreville    Québec
  -      1890, av. Dollard    LaSalle    Québec
  -      13425 Boul. Curé-Labelle    Mirabel    Québec
  -      1305, rue des Cascades    Saint-Hyacinthe    Québec
  -      211, av. du Pont Sud    Alma    Québec
  -      531, rue Saint-Louis    Saint-Lin-Laurentides    Québec
  -      3285, 1re Avenue    Rawdon    Québec
  -      4795, boul. Bourque    Rock Forest    Québec
  -      914, boul. Maloney Est    Gatineau    Québec
  -      550, boul. d’Iberville    Saint-Jean-sur-Richelieu    Québec
  -      4526, boul. St-Laurent    Montréal    Québec
  -      83, rue Ellice    Beauharnois    Québec
  -      9, boul. Montcalm Nord, porte 17    Candiac    Québec
  -      179, av. St-Alphonse    Roberval    Québec
  -      572, boul. Arthur-Sauvé    Saint-Eustache    Québec
  -      600, Montée du Moulin, local 24    Saint-François, Laval    Québec
  -      1334, boul. Sacré-Coeur    Saint-Félicien    Québec
  -      15020, boul. Henri-Bourassa    Québec    Québec
  -      13960-5, Montée St-Simon    Mirabel    Québec
  -      277, Montée des Pionniers    Lachenaie    Québec
  -      356, boul. Sir-Wilfrid-Laurier    Mont-Saint-Hilaire    Québec
  -      560, rue Conrad    Granby    Québec
  -      2148, boul. Lapinière    Brossard    Québec
  -      75, boul. des Châteaux, local 201    Blainville    Québec
  -      828, av. Gilles Villeneuve    Berthierville    Québec
  -      777, boul. Lebourgneuf local 115    Québec    Québec
  -      28, boul. du Mont-Bleu    Gatineau    Québec
  -      63, Montée Gagnon,    Bois-des-Fillions    Québec
  -      1811, Ste-Angelique    St-Lazare    Québec


  -      24 rue Du Couvent, local #1    l’Épiphanie    Québec
  -      1625 3 e avenue    Val-d’Or    Québec
  -      574 rue principale    Granby    Québec
  -      2645 Boul. Curé-Labelle, local 105    Prévost    Québec
  -      3615 Notre-Dame Ouest    St-Henri    Québec
  -      281 King Street    Port Colborne    Ontario
  -      1000 Gerrard Street East, Unit C13-14    Toronto    Ontario
  -      12 Highland Drive.      
  -      Fonthill Shopping Centre, Hwy #20    Fonthill    Ontario
  For information purposes, the following are premises occupied outside of Québec and Ontario (however these do not contain material assets belonging to members of the VL Group):
  -      169 Dundonald St.    Fredericton    New Brunswick
  -      102 Main St., Unit 5    Fredericton    New Brunswick
  -      454 Granville Street    Summerside    Prince Edward Island
  -      39 Commonwealth Ave. Unit 7    Mt. Pearl    Newfoundland
  -      #9-2539 Main Street    Winnipeg    Manitoba
  -      8 HardyAve.    Grand Falls-Windsor    Newfoundland
  -      Mailing address: P.O. Box 21211,    St. John’s    Newfoundland
  -      26 Hamlyn Road, St. John’s    St. John’s    Newfoundland
  -      30, rue de l’Église    Edmundston    New Brunswick

 

  (ix) Jobboom Inc.

 

  612 rue Saint-Jacques, Montréal Québec H3C4M8


Part 2

List of Non-Material Real Estate (Section 13.3)

 

No

  

Address

  

Value

055

   14165 Cherrier, Montréal    $130,867.00

062

   Lot 556-13, 556-14, Cap-de-la Madeleine    $92,300.00

067

   Lot 601-1-2, Notre-Dame-des-Laurentides    $86,000.00

348

   Lot 981-2 canton de Shefford, Waterloo    $19,200.00

362

   St-Honoré    $300.00

678

   3338, Tolmies Corners, Roxboro, Ontario    $29,125.00

311

   1512 Chemin St-Jean (Concession 9), Clarence-Rockland, Ontario    $61,000.00


SCHEDULE “J” - OFFICER’S COMPLIANCE CERTIFICATE

TO: ROYAL BANK OF CANADA, as Agent

We have reviewed the Amended and Restated Credit Agreement dated as of June 16, 2015 (as modified, supplemented, amended or amended and restated from time to time, the “ Credit Agreement ”) entered into among VIDÉOTRON LTÉE, Royal Bank of Canada, as Agent and the Lenders (as defined in the Credit Agreement), and hereby certify that:

 

  (i) with the exceptions listed below (if any), as of the date of this certificate, the Borrower has complied with all the terms and conditions of the Credit Agreement;

 

  (ii) the Adjusted Consolidated assets, EBITDA and Debt owned, generated or owed by the VL Group is not less than 95% of the consolidated assets, EBITDA and Debt of the Borrower [ if any of these elements is less than 95%, provide an accurate percentage ] ;

 

  (iii) the aggregate assets and EBITDA attributable to the Borrower and the Guarantors is [ not less than 95% of the consolidated assets and EBITDA of the Borrower ] {or} [ % [cannot be less than 80%] of the consolidated assets and % [cannot be less than 80%] of the consolidated EBITDA of the Borrower ] , such EBITDA in each case calculated on a rolling four-quarter basis;

 

  (iv) [For annual Compliance Certificate alone; if both assets and EBITDA attributable to the Borrower and the Guarantors represent not less than 95% of the consolidated assets and EBITDA of the Borrower, this will be provided only at the reasonable request of the Agent] [if applicable] annexed hereto is all of the information necessary to permit the Agent and the Lenders to calculate the EBITDA and assets attributable to (a) the Borrower and the Guarantors, and (b) the Borrower on a consolidated basis; and

 

  (v) no Default has occurred and is continuing and no Event of Default has occurred or exists under the Credit Agreement [ or, if a Default or Event of Default exists, set out the details and proposed solutions ] .

We attach a Compliance Certificate demonstrating the Borrower’s compliance with the financial covenants listed in subsections 12.11.1 and 12.11.2, [as well as compliance with the covenant contained in Section 12.12 of the Credit Agreement], in each case for the latest period required under subsection {12.15.1 - quarterly} {12.15.2 - annual} {choose one} .

 

 

Name and Title
Date:  

 

 

List of Defaults or Events of Default (either list or state “none”. If any exist, set out particulars, period of existence and actions proposed)


COMPLIANCE CERTIFICATE

Maintenance of Ratios (Section 12.11)

Quarter ending                 

( Indicate if the information provided herein is provided on a consolidated or Adjusted Consolidated basis )

 

1. Leverage Ratio (Debt to EBITDA)

 

(A)    Debt    $                                      
(B)    EBITDA    $                                      
Ratio of Debt to EBITDA (A/B) =                                          

 

2. Interest Coverage Ratio

 

(B)    EBITDA   $                              
(D)    Interest Expense   $                              
Ratio of EBITDA to Interest Expense (B/D) =                                    

Calculation of Debt (A)

 

   Borrowed money (excluding QMI Subordinated Debt)    $                                 
plus         
   Hedging Exposure    $                                 
plus         
   Deferred purchase price    $                                 
plus         
   Obligations secured by Charges    $                                 
plus         
   Capital and Synthetic Leases    $                                 
plus         
   Contingent Obligations    $                                 
plus         
   B/A’s, letters of credit and Guarantees    $                                 
equals         
   DEBT (A):                          $                               


Calculation of EBITDA (B)

 

  

(i)          Net income or loss of Borrower

   $                            
plus         
  

(ii)        non-controlling interests

   $                            
plus         
  

(iii)       extraordinary items

   $                            
plus         
  

(iv)       Interest Expense

   $                            
plus         
  

(v)         Income tax expense

   $                            
plus         
  

(vi)       Depreciation and amortization

   $                            
plus or minus      
  

(vii)      Forex translation gains / losses

   $                            
plus         
  

(viii)     Non-cash financial charges

   $                         
minus      
  

(ix)       Income or expense related to Back-to-Back Securities

   $                            
minus         
  

(x)         EBITDA of Subsidiaries not members of the Relevant Group

   $                            
Equals         
   EBITDA (B)                    $                          


Covenant Compliance (Section 12.12)

( To be reported on only annually, unless requested more frequently by the Agent. However, if both assets and EBITDA attributable to the Borrower and the Guarantors represent at least 95% of the consolidated assets and EBITDA of the Borrower, detailed calculations will be provided only at the request of the Agent

Borrower and Guarantors required to have 80% of Borrower’s consolidated EBITDA and assets (12.12)

Calculation of % of Assets

 

(i)               Total assets of Borrower (consolidated)

   $                       

minus        

(ii)             Assets owned by Persons not Borrower or Guarantors

   $                       

equals       

(iii)            Total assets of Borrower and Guarantors

   $                       

Ratio of assets of Borrower and Guarantors to Borrower consolidated assets

  (= (iii)/(i)) =                     

(must not be less than 80%)

 

Calculation of % of EBITDA

 

(i)               Total EBITDA of Borrower (consolidated)

   $                       

minus        

(ii)             EBITDA generated by Persons other than Borrower or Guarantors

   $                       

equals       

(iii)            Total EBITDA of Borrower and Guarantors

   $                       

Ratio of EBITDA of Borrower and Guarantors to Borrower consolidated EBITDA

  (= (iii)/(i)) =                     

(must not be less than 80%)

 


SCHEDULE “K” - INTENTIONALLY DELETED


SCHEDULE “L” - GUARANTORS AND MEMBERS OF THE VL GROUP AS AT THE

THIRD AMENDMENT CLOSING DATE

MEMBERS OF THE VL GROUP

VIDÉOTRON LTÉE (Borrower)

9293-6707 QUÉBEC INC. (Guarantor)

9227-2590 QUÉBEC INC. (Guarantor)

9230-7677 QUEBEC INC. (Guarantor)

8487782 CANADA INC. (formerly JOBBOOM INC.) (Guarantor)

VIDEOTRON G.P. (Guarantor)

VIDEOTRON L.P. (Guarantor)

VIDEOTRON INFRASTRUCTURES INC. (Guarantor)

VIDEOTRON US INC.

4DEGRÉS COLOCATION INC. / 4DEGREES COLOCATION INC. (Guarantor)

GUARANTORS

9293-6707 QUÉBEC INC. (Guarantor)

9227-2590 QUÉBEC INC. (Guarantor)

9230-7677 QUEBEC INC. (Guarantor)

8487782 CANADA INC. (formerly JOBBOOM INC.) (Guarantor)

VIDEOTRON G.P. (Guarantor)

VIDEOTRON L.P. (Guarantor)

VIDEOTRON INFRASTRUCTURES INC. (Guarantor)

4DEGRÉS COLOCATION INC. / 4DEGREES COLOCATION INC. (Guarantor)


SCHEDULE “M” – INTENTIONALLY DELETED


SCHEDULE “N” – FORM OF SUBORDINATION AGREEMENT FOR BACK-TO-BACK SECURITIES

This SUBORDINATION AGREEMENT is dated as of ●, 20●● (the “ Agreement ”).

To: Royal Bank of Canada, for itself and as Agent under the Credit Agreement (defined below) for the Lenders (the “ Agent ”), Videotron Ltée, a Quebec company (the “ Obligor ”), as obligor under the ● dated as of ●, and ● in the principal amount of $● and $●, respectively, made by the Obligor in favour of ● (the “ Subordinated Notes ”), and ●, as holder (the “ Holder ”) of the Subordinated Notes, for ten dollars and other good and valuable consideration received by each of the Obligor and the Holder from the Agent and by each of the Obligor and the Holder from the other, agree as follows:

1. Interpretation.

(a) “ Cash, Property or Securities ”. “Cash, Property or Securities” shall not be deemed to include securities of the Obligor or any other Person provided for by a plan of reorganization or readjustment, the payment of which is subordinated at least to the extent provided herein with respect to the Subordinated Notes, to the payment of all Senior Indebtedness which may at the time be outstanding; provided, however, that (i) all Senior Indebtedness is assumed by the new Person, if any, resulting from any such reorganization or readjustment, and (ii) the rights of the holders of the Senior Indebtedness are not, without the consent of such holders, altered by such reorganization or readjustment.

(b) “ payment in full ”. “payment in full”, with respect to Senior Indebtedness, means the receipt on an irrevocable basis of cash in an amount equal to the unpaid principal amount of the Senior Indebtedness and premium, if any, and interest and any special interest thereon to the date of such payment, together with all other amounts owing with respect to such Senior Indebtedness.

(c) “ Senior Indebtedness ”. “Senior Indebtedness” means, at any date all indebtedness (including, without limitation, any and all amounts of principal, interest, special interest, additional amounts (including amounts owed under any Derivative Instrument entered into with a Lender, as defined in the Credit Agreement), premium, fees, penalties, indemnities and “post-petition interest” in bankruptcy and any reimbursement of expenses) under (1) the Indentures described as (i) “US$650,000,000 6 7 / 8 % Senior Notes due 2014”, (ii) “US$175,000,000 6 3 / 8 % Senior Notes due 2015”, (iii) “US$715,000,000 9 1 / 8 % Senior Notes due 2018”, (iv) “Cdn.$300,000,000 7 1 / 8 % Senior Notes due 2020”, and (v) Cdn.$300,000,000 6 7 / 8 % Senior Notes due 2021 including, without limitation, the “Notes”, the “Subsidiary Guarantees”, the “Exchange Notes”, the “Additional Notes” and any Guarantee of the Exchange Notes or the Additional Notes (in each case, as defined in the relevant Indenture) and (2) the Amended and Restated Credit Agreement, dated as of June 16, 2015, among the Obligor, the Lenders as defined therein, and Royal Bank of Canada, as administrative agent (the “ Credit Agreement ”; capitalized terms used herein without definition having the meanings set forth therein).

2. Agreement Entered into Pursuant to Credit Agreement. The Obligor, the Agent and the Lenders are entering into this Agreement pursuant to the provisions of the Credit Agreement, pursuant to which Videotron Ltée may borrow up to Cdn. $650,000,000 on a committed basis (the “ Credit ”).


3. Subordination. The indebtedness represented by the Subordinated Notes shall be subordinated as follows:

(a) Agreement to Subordinate . The Obligor, for itself and its successors and assigns, and the Holder agree that the indebtedness evidenced by the Subordinated Notes (including, without limitation, principal, interest, premium, fees, penalties, indemnities and “post-petition interest” in bankruptcy (as same is interpreted under the US Bankruptcy Code) and any reimbursement of expenses) is subordinate and junior in right of payment, to the extent and in the manner provided in this Section 3, to the prior payment in full of all Senior Indebtedness. The provisions of this Section 3 are for the benefit of the Agent acting on behalf of the holders from time to time of Senior Indebtedness under the Credit Agreement, including the Lenders as defined therein, and such holders are hereby made obligees hereunder to the same extent as if their names were written herein as such, and they (collectively or singly) may proceed to enforce such provisions.

(b) Liquidation, Dissolution or Bankruptcy .

 

  (i) Upon any distribution of assets of the Obligor to creditors or upon a liquidation or dissolution or winding-up of the Obligor or in a bankruptcy, arrangement, liquidation, reorganization, insolvency, receivership or similar case or proceeding relating to the Obligor or its property or other marshalling of assets of the Obligor:

 

  (A) the holders of Senior Indebtedness shall be entitled to receive payment in full of all Senior Indebtedness before the Holder shall be entitled to receive any payment of principal of or interest on, or any other amount owing in respect of, the Subordinated Notes;

 

  (B) until payment in full of all Senior Indebtedness, any distribution of assets of the Obligor of any kind or character to which the Holder would be entitled but for this Section 3 is hereby assigned to the holders of Senior Indebtedness absolutely and shall be paid by the Obligor or by any receiver, trustee in bankruptcy, liquidating trustee, agents or other Persons making such payment or distribution to, the Agent on behalf of the holders of Senior Indebtedness under the Credit Agreement, as their interests may appear; and

 

  (C)

in the event that, notwithstanding the foregoing, any payment or distribution of assets of the Obligor of any kind or character, whether in Cash, Property or Securities, shall be received by the Holder before all Senior Indebtedness is paid in full, such payment or distribution shall be held in trust for the benefit of and shall be paid over to the Agent on behalf of the holders of Senior Indebtedness under the Credit Agreement, as their interests may appear, for


  application to the payment of all Senior Indebtedness under the Credit Agreement until all such Senior Indebtedness shall have been paid in full after giving effect to any concurrent payment or distribution to the holders of Senior Indebtedness under the Credit Agreement in respect of such Senior Indebtedness.

 

  (ii) If (A) a bankruptcy, reorganization, insolvency, receivership or similar proceeding relating to the Obligor or its property (a “ Reorganization Proceeding ”) is commenced and is continuing and (B) the Holder does not file proper claims or proofs of claim in the form required in a Reorganization Proceeding prior to 45 days before the expiration of the time to file such claims, then (1) upon the request of the Agent, the Holder shall file such claims and proofs of claim in respect of the Subordinated Notes and execute and deliver such powers of attorney, assignments and proofs of claim or proxies as may be directed by the Agent to enable it to exercise in the sole discretion of the Agent any and all voting rights attributable to the Subordinated Notes which are capable of being voted (whether by meeting, written resolution or otherwise) in a Reorganization Proceeding and enforce any and all claims upon or in respect of the Subordinated Notes and to collect and receive any and all payments or distributions which may be payable or deliverable at any time upon or in respect of the Subordinated Notes, and (2) whether or not the Agent shall take the action described in clause (1) above, the Agent shall nevertheless be deemed to have such powers of attorney as may be necessary to enable the Agent to exercise such voting rights, file appropriate claims and proofs of claim and otherwise exercise the powers described above for and on behalf of the Holder.

(c) Relative Rights . This Section 3 defines the relative rights of the Holder and the holders of Senior Indebtedness. Nothing in this Section 3 shall:

 

  (i) impair, as between the Obligor and the Holder, the obligation of the Obligor, which is absolute and unconditional, to pay the principal of and interest on the Subordinated Notes in accordance with their terms; or

 

  (ii) affect the relative rights of the Holder and creditors of the Obligor other than the holders of Senior Indebtedness; or

 

  (iii) affect the relative rights of the holders of Senior Indebtedness among themselves or opposite the Obligor under the Loan Documents; or

 

  (iv) prevent the Holder from exercising its available remedies upon a default, subject to the rights of the holders of Senior Indebtedness to receive cash, property or other assets otherwise payable to the Holder.


(d) Subordination May Not Be Impaired .

 

  (i) No right of any holder of Senior Indebtedness to enforce the subordination of indebtedness evidenced by the Subordinated Notes shall in any way be prejudiced or impaired by any act or failure to act by the Obligor or by any such holder or the Agent, or by any non-compliance by the Obligor with the terms, provisions or covenants herein, regardless of any knowledge thereof which any such holder or the Agent may have or be otherwise charged with. Neither the subordination of the Subordinated Notes as herein provided nor the rights of the holders of Senior Indebtedness with respect hereto shall be affected by any extension, renewal or modification of the terms, or the granting of any security in respect of, any Senior Indebtedness or any exercise or non-exercise of any right, power or remedy with respect thereto.

 

  (ii) The Holder agrees that all indebtedness evidenced by the Subordinated Notes will be unsecured by any Charge (as defined in the Credit Agreement) or by any Lien (as defined in the Indenture) upon or with respect to any property of the Obligor.

 

  (iii) The Holder agrees not to exercise any offset or counterclaim or similar right in respect of the indebtedness evidenced by the Subordinated Notes except to the extent payment of such indebtedness is permitted and will not assign or otherwise dispose of the Subordinated Notes or the indebtedness which it evidences unless the assignee or acquirer, as the case may be, agrees to be bound by the terms of this Agreement.

(e) Holder Entitled to Rely.

Upon any payment or distribution pursuant to this Section 3, the Holder shall be entitled to rely (i) upon any order or decree of a court of competent jurisdiction in which any proceedings of the nature referred to in Section (b) are pending, (ii) upon a certificate if the liquidating trustee or agent or other person in such proceedings making such payment or distribution to the Holder or its representative, if any, or (iii) upon a certificate of the Agent or any representative (if any) of the holders of Senior Indebtedness for the purpose of ascertaining the persons entitled to participate in such payment or distribution, the holders of the Senior Indebtedness and other indebtedness of the Obligor, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Section 3

4. Enforceability. Each of the Obligor and the Holder represents and warrants that this Agreement has been duly authorized, executed and delivered by each of the Obligor and the Holder and constitutes a valid and legally binding obligation of each of the Obligor and the Holder, enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles; and on the date hereof, the Holder shall deliver an opinion or opinions of counsel to such effect to the Agent for the benefit of the Lenders.


5. Miscellaneous.

(a) Until payment in full of all the Senior Indebtedness, the Obligor and the Holder agree that no amendment shall be made to any of the Subordinated Notes which would affect the rights of the holders of the Senior Indebtedness.

(b) This Agreement may not be amended or modified in any respect, nor may any of the terms or provisions hereof be waived, except by an instrument signed by the Obligor, the Holder and the Agent.

(c) This Agreement shall be binding upon each of the parties hereto and their respective successors and assigns and shall inure to the benefit of the Agent and each and every holder of Senior Indebtedness and their respective successors and assigns.

(d) This Agreement shall be governed by and construed in accordance with the laws of the State of New York.

(e) The Holder and the Obligor each hereby irrevocably agrees that any suits, actions or proceedings arising out of or in connection with this Agreement may be brought in any state or federal court sitting in The City of New York or any court in the Province of Quebec and submits and attorns to the non-exclusive jurisdiction of each such court.

(f) The Holder and the Obligor will whenever and as often as reasonably requested to do so by the Agent, do, execute, acknowledge and deliver any and all such other and further acts, assignments, transfers and any instruments of further assurance, approvals and consents as are necessary or proper in order to give complete effect to this Agreement.

(g) Each of the Holder and the Obligor irrevocably appoints CT Corporation System, as its authorized agent in the State of New York upon which process may be served in any such suit or proceedings, and agrees that service of process upon such agent, and written notice of said service to CT Corporation System, by the person serving the same to the addresses listed below, shall be deemed in every respect effective service of process upon the Holder or the Obligor, as applicable, in any such suit or proceeding.

If to the Obligor:

 

If to the Holder:

 

Each of the Holder and the Obligor further agrees to take any and all action as may be necessary to maintain such designation and appointment of such agent in full force and effect for a period of ten years from the date of this Agreement.


IN WITNESS WHEREOF, the Obligor and the Holder each have caused this Agreement to be duly executed.

 

by  

 

  Name:    n
  Title:      n
 
by  

 

  Name:    n
  Title:      n


SCHEDULE “O” – JOINDER AGREEMENT

JOINDER AGREEMENT

THIS JOINDER AGREEMENT , dated as of              , 20      (this “ Agreement ”), by and among [NEW LENDERS] (each a “ New Lender ” and collectively the “ New Lenders ”), VIDÉOTRON LTÉE (the “ Borrower ”), the several banks and other financial institutions or entities from time to time parties thereto, Royal Bank of Canada, as Agent (in such capacity, the “ Agent ”).

RECITALS:

WHEREAS reference is hereby made to the Amended and Restated Credit Agreement dated as of June 16, 2015 (as it may be further amended, restated, supplemented or otherwise modified from time to time, the “ Credit Agreement ”; the terms defined therein and not otherwise defined herein being used herein as therein defined), by and among the Lenders party thereto from time to time and the Agent; and

WHEREAS subject to the terms and conditions of the Credit Agreement, the Borrower may increase the existing Commitments by obtaining New Commitments and entering into one or more Joinder Agreements with the New Lenders.

NOW, THEREFORE , in consideration of the premises and agreements, provisions and covenants herein contained, the parties hereto agree as follows:

Each New Lender party hereto hereby agrees to commit to provide its respective New Commitment as set forth on Schedule “A” annexed hereto, on the terms and subject to the conditions set forth below:

Each New Lender (i) confirms that it has received a copy of the Credit Agreement and the Security Documents, together with copies of the financial statements referred to therein and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Joinder Agreement (this “Agreement” ); (ii) agrees that it will, independently and without reliance upon the Agent or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Credit Agreement; (iii) appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such powers under the Credit Agreement and the Security Documents as are delegated to the Agent by the terms thereof, together with such powers as are reasonably incidental thereto; (iv) acknowledges and accepts that such New Lender and the Agent are solidary creditors of the Borrower and the Guarantors in respect of all amounts, liabilities and other obligations, present and future, of the Borrower and the Guarantors to each of them under the Credit Agreement and the Derivative Instruments as contemplated by Section 18.1.2 of the Credit Agreement and in accordance with Article 1541 of the Civil Code of Quebec ; and (v) agrees that it will perform in accordance with their terms all of the obligations which by the terms of the Credit Agreement are required to be performed by it as a Lender.


Each New Lender hereby agrees to make its Commitment on the following terms and conditions:

 

1. New Lenders . Each New Lender acknowledges and agrees that upon its execution of this Agreement, such New Lender shall become a “Lender” under, and for all purposes of, the Credit Agreement and the Security Documents, and shall be subject to and bound by the terms thereof, and shall perform all the obligations of and shall have all rights of a Lender thereunder.

 

2. Credit Agreement Governs . Except as set forth in this Agreement, New Advances shall otherwise be subject to the provisions of the Credit Agreement and the Security Documents.

 

3. The Borrower’s Certifications . By its execution of this Agreement, each of the undersigned officers, to the best of his or her knowledge, and the Borrower hereby certify that:

 

  i. The representations and warranties contained in the Credit Agreement and the Security Documents are true and correct in all material respects on and as of the date hereof to the same extent as though made on and as of the date hereof, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties were true and correct in all material respects on and as of such earlier date;

 

  ii. No event has occurred and is continuing or would result from the addition of the Commitments from the New Lenders as contemplated hereby that would constitute a Default or an Event of Default;

 

  iii. The Borrower has performed in all material respects all agreements and satisfied all conditions required to be performed or satisfied by it under the Credit Agreement on or before the date hereof; and

 

  iv. After giving effect to this Joinder Agreement and the aggregate new Commitments, the Borrower is (and will be on a pro forma basis) in compliance with the financial tests described in Section 12.11 of the Credit Agreement.

 

4. The Borrower’s Covenants . By its execution of this Agreement, the Borrower hereby covenants that:

 

  i. The Borrower shall make all payments required pursuant to the Credit Agreement in connection with the New Commitments, including the payment of any fees in respect of such New Commitment; and

 

  ii. The Borrower shall deliver or cause to be delivered the legal opinions and documents required pursuant to subsection 2.4.3 of the Credit Agreement.


5. Notice . For purposes of the Credit Agreement, the initial notice address of each New Lender shall be as set forth below its signature below.

 

6. Recording of the New Loans . Upon execution and delivery hereof, the Agent will record the New Advances made by New Lenders in the Register.

 

7. Amendment, Modification and Waiver . This Agreement may not be amended, modified or waived except by an instrument or instruments in writing signed and delivered on behalf of each of the parties hereto.

 

8. Entire Agreement . This Agreement, the Credit Agreement and the Security Documents constitute the entire agreement among the parties with respect to the subject matter hereof and thereof and supersede all other prior agreements and understandings, both written and verbal, among the parties or any of them with respect to the subject matter hereof.

 

9. Governing Law . This Agreement and the rights and obligations of the parties hereunder shall be governed by, and shall be construed and enforced in accordance with, the laws of the province of Quebec.

 

10. Severability . Any term or provision of this Agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms and provisions of this Agreement or affecting the validity or enforceability of any of the terms or provisions of this Agreement in any other jurisdiction. If any provision of this Agreement is so broad as to be unenforceable, the provision shall be interpreted to be only so broad as would be enforceable.

 

11. Counterparts . This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same agreement.

[Remainder of page intentionally left blank]


IN WITNESS WHEREOF , each of the undersigned has caused its duly authorized officer to execute and deliver this Joinder Agreement as of [              ,              ].

 

[NAME OF NEW LENDER]
By:  

 

Name:  
Title:  
Notice Address:
Attention:  
Telephone:  
Facsimile:  

 

VIDÉOTRON LTÉE
By:  

 

Name:  
Title:  
By:  

 

Name:  
Title:  


ROYAL BANK OF CANADA

as Agent

By:

 

 

Name:

 

Title:

 


SCHEDULE A

TO JOINDER AGREEMENT

 

Name of Lender

 

Type of Commitment

 

Amount

[            ]   New Commitment   $                                    
   
   

 

    Total: $            
   

 


SCHEDULE “P”– FINNVERA TERM FACILITY

None of the provisions of this Schedule “P” shall apply to the Revolving Facility Lenders, the Unsecured Facility Lenders, the Revolving Facility or the Unsecured Facility.

 

1. TRANCHE A CREDIT

Subject to the provisions of the Credit Agreement, and in particular, to the provisions of Article 2 of this Schedule “P”, each Tranche A Lender agrees to make available to the Borrower, individually and not jointly and severally or solidarily, its Tranche A Commitment in the Tranche A Credit, which Tranche A Credit consists of the Finnvera Term Facility in a maximum amount equal to Cdn.$75,000,000. All Tranche A Advances under the Finnvera Term Facility shall be in Canadian Dollars alone. The Finnvera Term Facility will not revolve and any amount prepaid or repaid may not be reborrowed.

 

2. PURPOSE

All Tranche A Advances made by the Tranche A Lenders to the Borrower under the Finnvera Term Facility in accordance with the provisions of this Schedule “P” shall be used to, without duplication, (i) finance up to the CAD Equivalent of (x) 85% of the Purchase Price and (y) costs for local services up to a maximum of 30% of the Purchase Price by way of reimbursement to the Borrower for eligible payments made by the Borrower to NSN under the NSN Contract; (ii) pay up to 100% of the upfront portion of the ECA Premium A from the proceeds of the first Tranche A Advance; and (iii) pay all other amounts approved by Finnvera and owed in connection with the NSN Contract, the whole subject to and in accordance with the terms and conditions of this Schedule “P”.

 

3. ADVANCES AND OPERATION OF ACCOUNTS

 

  3.1 Tranche A Notice of Borrowing

Subject to the applicable provisions of this Schedule “P” but not more than once per calendar month, the Borrower shall be entitled to request multiple Tranche A Advances under the Finnvera Term Facility, to be made on any Business Day during the Availability Period and in accordance with the payment program set forth in the NSN Contract, up to the maximum amount of the Tranche A Credit, upon delivery of an irrevocable written Tranche A Notice of Borrowing to the Finnvera Facility Agent at or before 3:00 P.M. (London, England time) at least four (4) Business Days prior to the date of the proposed Tranche A Advance.

 

  3.2 Type of Tranche A Advance

Tranche A Advances made by a Domestic Tranche A Lender or a Foreign Tranche A Lender in accordance with Section 3.6 of this Schedule “P” shall be in the form of Tranche A CDOR Advances.


  3.3 Notice of New Tranche A Designated Period

Upon the expiration of any Tranche A Designated Period applicable to any Tranche A CDOR Advance, the Borrower shall have the option to request the continuation of all or any portion (in minimum amounts of Cdn.$1,000,000 or such smaller amount corresponding to the Tranche A CDOR Advance Amount of such Tranche A Advance on the Tranche A Rollover Date upon delivery of an irrevocable written Notice of New Tranche A Designated Period to the Finnvera Facility Agent at or before 3:00 P.M. (London, England time) at least four (4) Business Days prior to the date of the Tranche A Rollover Date. Except in respect of the whole or a portion of the Tranche A Advance Amount for which the Borrower has delivered a Notice of Repayment in accordance with the provisions of Section 5.2 of this Schedule “P”, if the Borrower has not delivered a Notice of New Tranche A Designated Period in a timely manner in accordance with the provisions of this Section 3.3, the Borrower shall be deemed to have chosen a new Tranche A Designated Period of 6 months (or such shorter period expiring on the next Repayment Date). For greater certainty, if only a portion of a Tranche A Advance is continued under this Section 3.3, the portion not so continued shall be prepaid and cancelled.

 

  3.4 Determination of Interest

The Finnvera Facility Agent shall determine the CDOR Rate which will be in effect on the date of the Tranche A Advance or the Tranche A Rollover Date, as the case may be (which, in each case, must be a Business Day), with respect to the Tranche A CDOR Advance Amount, having a maturity of 30 to 183 days (during the Availability Period) or 1, 3 or 6 months (during the period of 24 months from the Signing Date) or 3 or 6 months (thereafter), as requested by the Borrower and subject to availability, from the date of the Tranche A Advance or the Tranche A Rollover Date, as the case may be. However, if the Borrower has not delivered a notice to the Finnvera Facility Agent in a timely manner in accordance with the provisions of Section 3.1or 3.3 of this Schedule “P”, as the case may be, the Borrower shall be deemed to have chosen a Tranche A Designated Period of 6 months (or such shorter period expiring on the next Repayment Date).

Notwithstanding the foregoing, each Tranche A Advance other than the initial Tranche A Advance shall have a Tranche A Designated Period expiring on the next Tranche A Rollover Date.

 

  3.5 Operation of Accounts

The Finnvera Facility Agent shall maintain in its books at the Finnvera Facility Agency Branch a record of the Term Loan attesting as to the total of the Borrower’s indebtedness to the Tranche A Lenders. These accounts or registers shall constitute, in the absence of manifest error, prima facie proof of the total amount of the indebtedness of the Borrower to the Tranche A Lenders, of the date of any Tranche A Advance made to the Borrower and of the total of all amounts paid by the Borrower from time to time with respect to principal and interest owing on the Term Loan and the fees and other sums payable in connection with the Finnvera Term Facility.

 

2


  3.6 Apportionment of Tranche A Advances

The amount of each Tranche A Advance will be apportioned among the Tranche A Lenders by the Finnvera Facility Agent by reference to the Tranche A Commitment of each Tranche A Lender, as such Tranche A Commitment shall be immediately prior to the making of any Tranche A Advance. If any amount disbursed by the Finnvera Facility Agent to the Borrower is not in fact made available to the Finnvera Facility Agent by a Tranche A Lender, the Finnvera Facility Agent shall be entitled to recover such amount (together with interest thereon at the rate determined by the Finnvera Facility Agent as being its cost of funds in the circumstances) on demand from such Tranche A Lender or, if such Tranche A Lender fails to reimburse the Finnvera Facility Agent for such amount, on demand from the Borrower.

 

  3.7 Limitations on Advances

 

  3.7.1 The undrawn Tranche A Credit available under the Finnvera Term Facility shall cease to be available at the expiry of the Availability Period.

 

  3.7.2 The aggregate principal amount of each Tranche A Advance (other than the initial Tranche A Advance) shall not exceed the CAD Equivalent (determined as of the date of the Tranche A Notice of Borrowing issued in connection with such Tranche A Advance) of (i) 85% of the portion of the Purchase Price for which such Tranche A Advance is made and (ii) costs for local services up to a maximum amount which, when combined with all amounts previously disbursed by the Tranche A Lenders in reimbursement of costs for local services, does not exceed 30% of the portion of the Purchase Price paid to date (collectively, the “ Maximum Amount ”) and, in the case of the initial Tranche A Advance only, the sum of the Maximum Amount and up to 100% of the upfront portion of the ECA Premium A.

 

  3.8 Notices Irrevocable

Any notice given to the Finnvera Facility Agent in accordance with Article 3 of this Schedule “P” may not be revoked or withdrawn.

 

  3.9 Market for Tranche A CDOR Advances

 

  3.9.1

If at any time or from time to time as a result of market conditions, (i) there exists no appropriate or reasonable method to establish the CDOR Rate for a Tranche A CDOR Advance Amount, or a Tranche A Designated Period, or (ii) the Finnvera Facility Agent receives

 

3


  notification from two or more Tranche A Lenders whose Tranche A Commitments exceed, in the aggregate, 20% of the Tranche A Credit, that the CDOR Rate does not accurately reflect its Cost of Funds, then the relevant Tranche A Lenders shall, prior to the date of a Tranche A Advance or the Tranche A Rollover Date, so advise the Finnvera Facility Agent and shall thereupon not be obliged to honor any Tranche A Notices of Borrowing or any Notices of New Tranche A Designated Period and the Borrower’s option to request Tranche A CDOR Advances or any rollovers thereof, as the case may be, shall thereupon be suspended upon notice by the Finnvera Facility Agent to the Borrower, and, until such time as the Finnvera Facility Agent has determined that the circumstances having given rise to such suspension no longer exist, in respect of which determination the Finnvera Facility Agent shall advise the Borrower within a reasonable delay, the rate of interest applicable to such Tranche A Lenders’ portion of any Tranche A Advance shall be calculated and payable on a Cost of Funds Basis plus a margin of 0.875%, in the case of rollovers of Tranche A Advances which were originally Tranche A CDOR Advances or in the case of new Tranche A Advances which would otherwise have been Tranche A CDOR Advances in accordance with the provisions of Section 3.6 of this Schedule “P”. For the purposes of paragraph (ii) of this Section 3.9, a Tranche A Lender shall notify the Finnvera Facility Agent of its Cost of Funds as soon as practicable and in any event before interest is due to be paid in respect of the relevant Tranche A Advance.

 

  3.9.2 If the events described in clause (i) or (ii) of subsection 3.9.1 above occur and the Finnvera Facility Agent or the Borrower so requires, the Finnvera Facility Agent and the Borrower shall enter into negotiations (for a period of not more than thirty (30) days) with a view to agreeing on a substitute basis for determining the rate of interest payable to each Tranche A Lender affected by such above-mentioned events. Any alternative basis agreed upon pursuant to the above shall, with the prior consent of all of the Tranche A Lenders, be binding on all parties, it being agreed that such alternative basis shall apply only to the Tranche A Lenders affected by the relevant events described in such clause (i) or (ii).

 

  3.9.3 For greater certainty, if no such agreement on an alternative basis is reached in accordance with the provisions of subsection 3.9.2 above, the provisions of 3.9.1 shall apply.

 

  3.10 Suspension of Tranche A CDOR Advances

If Canadian Dollar deposits are not available to the Foreign Tranche A Lenders in the ordinary course of business in amounts sufficient to permit them to make or continue a

 

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Tranche A Advance for a Tranche A Designated Period, the Foreign Tranche A Lenders shall, prior to the date of a Tranche A Advance or the Tranche A Rollover Date, so advise the Finnvera Facility Agent and thereupon be relieved from their obligation to make or continue a Tranche A Advance until such time as such funds become available in sufficient amounts, but they shall comply with the provisions of Section 3.11 of this Schedule “P”.

 

  3.11 Specific Clause with Regard to Foreign Tranche A Lenders

In the event of a suspension of the Borrower’s right to request Tranche A Advances (including conversions and extensions thereof) from one or more Foreign Tranche A Lenders under Section 3.10 of this Schedule “P” (each a “ Tranche A Affected Lender ”), each Tranche A Affected Lender shall, concurrently with the notice described in Section 3.10 of this Schedule “P”, seek alternative sources of funding the Tranche A Advances and, if sufficient funds are obtained, shall notify the Borrower as to when such funds will be available for Tranche A Advances. On the date indicated in such latter notice, the Tranche A Affected Lender shall be deemed to have made a Tranche A Advance with interest payable on a Cost of Funds Basis.

If within 5 Business Days following the notice described in Section 3.10 of this Schedule “P”, there remain one or more Tranche A Affected Lenders who have not been deemed to have made a Tranche A Advance on a Cost of Funds Basis under the preceding paragraph, such Tranche A Affected Lender (a “ Tranche A Incapable Lender ”) shall (i) provide an additional notice to the Finnvera Facility Agent and the Borrower of such fact and (ii) the parties will negotiate such amendments to this Schedule “P” as may be required to give full effect to such intention, it being understood that the Borrower alone will bear all foreign exchange risks.

 

  3.12 Limits on Tranche A CDOR Advances

Nothing in this Agreement shall be interpreted as authorizing the Borrower to borrow by way of Tranche A CDOR Advances for a Tranche A Designated Period expiring on a date which is after the expiry of the next Repayment Date.

 

  3.13 Exclusion of Finnvera Facility Agent, the Security Agent and Tranche A Lenders Liability in respect of NSN Contract

It is expressly understood and agreed by the Borrower, the Finnvera Facility Agent, the Security Agent and the Tranche A Lenders that there is no contractual relationship, either express or implied, between the Finnvera Facility Agent, the Security Agent and the Tranche A Lenders, on the one hand, and the Borrower, NSN or any other Person supplying any work, services or material in connection with the NSN Contract, on the other hand, and that the Finnvera Facility Agent, the Security Agent and the Tranche A Lenders shall not be liable to the Borrower, NSN or any such other Person in connection with the NSN Contract. The Borrower is not and shall not be the agent of the Finnvera Facility Agent, the Security Agent or the Tranche A Lenders for any purpose. There shall be no third party beneficiary of this Schedule “P”, express or implied, other than Finnvera.

 

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4. INTEREST AND FEES

 

  4.1 Interest at the CDOR Rate

The principal amount of the Tranche A CDOR Advances, which at any time and from time to time remains outstanding, shall bear interest, calculated daily, on the daily balance of such Tranche A CDOR Advances, from each Tranche A Rollover Date, at the annual rate (calculated based on a 365-day year) applicable to each of such days which corresponds to the CDOR Rate applicable to each Tranche A CDOR Advance Amount, plus a margin of 0.875%, and shall be effective from each Tranche A Rollover Date up to and including the date prior to the next Tranche A Rollover Date.

 

  4.2 Intentionally Deleted

 

  4.3 Payment of Interest

The interest payable in accordance with the provisions of Sections 4.1 and 4.2 of this Schedule “P” and calculated in the manner hereinabove set forth on the amount outstanding from time to time is payable to the Finnvera Facility Agent, for the account of the relevant Tranche A Lenders, in arrears on the last day of the Tranche A Designated Period.

If the relevant Tranche A Designated Period is not equal to 1, 2, 3 or 6 months, then the CDOR Rate, shall be determined by the application of straight line interpolation (rounding upwards, if necessary, to the nearest multiple of 0.01%) by reference to two CDOR Rates, one of which shall be the rate per annum for the period shorter than the stated term by the least number of days, and the other of which shall be the rate per annum for the period which is longer than the stated term by the least number of days.

 

  4.4 Fixing of CDOR Rate

The CDOR Rate shall be transmitted to the Borrower at approximately 3:00 P.M. (London, England time) on the same Business Day as:

 

  4.4.1 the date on which the Tranche A CDOR Advance is to be made; or

 

  4.4.2 the relevant Tranche A Rollover Date.

 

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  4.5 Arrears of Interest

Any arrears of interest or principal payable by the Borrower to the Finnvera Facility Agent or the Tranche A Lenders in connection with the Term Loan shall bear interest at the Default Rate.

 

  4.6 Maximum Interest

The amount of the interest or fees payable in applying this Schedule “P” shall not exceed the maximum rate permitted by Applicable Law. Where the amount of such interest or such fees is greater than such maximum rate, the amount shall be reduced to the highest rate which may be recovered in accordance with the applicable provisions of Applicable Law.

 

  4.7 Commitment Fee

The Borrower shall pay to the Finnvera Facility Agent, for the account of the Tranche A Lenders, a commitment fee (the “ Commitment Fee ”) in accordance with the terms and conditions of the Commitment Fee Letter attached hereto as Exhibit “P-6” to this Schedule “P”.

 

  4.8 Finnvera Closing Fee

On the later of (i) the Closing Date and (ii) the date on which the conditions set forth in subsection 6.2.1 have been met, the Borrower shall pay to the Finnvera Facility Agent, for the account of Finnvera, and to each Tranche A Lender a closing Fee of Cdn$7,500 each. Notwithstanding any other terms of this Schedule “P”, the foregoing closing Fee shall be the only Fee payable to the Tranche A Lenders and to Finnvera for the approval of and entry into the amendments made to the Credit Agreement on the Closing Date.

 

  4.9 ECA Premium A

If all or any part of the upfront portion of the ECA Premium A is not paid by the Borrower to the Finnvera Facility Agent, for the account of Finnvera, prior to the requested date of the initial Tranche A Advance after the Closing Date (the “ Outstanding ECA Premium A ”), the Finnvera Facility Agent shall deduct the Outstanding ECA Premium A from the proceeds of the initial Tranche A Advance after the Closing Date and remit same to Finnvera concurrently therewith.

 

  4.10 Interest Act

For the purposes of the Interest Act (Canada), any amount of interest or fees calculated herein using 360 or 365 days per year and expressed as an annual rate is equal to the said rate of interest or fees multiplied by the actual number of days comprised within the calendar year, divided by 360 or 365, as the case may be. The parties agree that all interest in this Schedule “P” will be calculated using the nominal rate method and not the effective rate method, and that the deemed re-investment principle shall not apply to such

 

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calculations. In addition, the parties acknowledge that there is a material distinction between the nominal and effective rates of interest and that they are capable of making the calculations necessary to compare such rates.

 

5. PAYMENT, REPAYMENT AND PREPAYMENT

 

  5.1 Repayment of the Term Loan

If the Tranche A Credit is fully drawn prior to the First Repayment Date, the Borrower hereby agrees to repay the principal amount outstanding under the Finnvera Term Facility in seventeen (17) equal and consecutive semi-annual instalments to be made on each Repayment Date. If the Tranche A Credit is not fully drawn prior to the First Repayment Date, the Borrower hereby agrees to repay (i) on the First Repayment Date, 1/17th of the principal amount outstanding under the Finnvera Term Facility on such First Repayment Date, and (ii) on each succeeding Repayment Date up to and including the Maturity Date, a fraction of the principal amount outstanding under the Finnvera Term Facility on such Repayment Date, the numerator of which is 1 and the denominator of which is 17 minus the number of Repayment Dates then past.

 

  5.2 Voluntary Repayment and Prepayment of the Term Loan or Cancellation of the Tranche A Credit

On any Business Day, after having given ten (10) Business Days prior written notice to the Finnvera Facility Agent substantially in the form of Exhibit “P-2” to this Schedule “P”, the Borrower may repay or prepay, in minimum amounts of Cdn.$1,000,000 (or the remaining amount of principal under the Term Loan) or in whole multiples of Cdn.$1,000,000 (or the remaining amount of principal under the Term Loan), all or part of the principal amount of the Term Loan under the Finnvera Term Facility for the account of the Tranche A Lenders, provided that (i) in respect of the Tranche A CDOR Advances, no repayment may be made on a day other than a Tranche A Rollover Date, save as provided in Section 7.4 of the Credit Agreement and in Section 5.3 of this Schedule “P”, with all interest accrued and unpaid on the amounts so prepaid; and (ii) if any prepayment of principal is made prior to the Eighth Repayment Date, a fee equal to 1.00% of the principal amount so prepaid shall be due and payable to the Tranche A Lenders; provided further that the cumulative amount of any and all such prepayment fee(s) (including any such fees due and payable in connection with the Tranche B Loan) shall not exceed Cdn.$750,000. All repayments and prepayments under this Section 5.2 shall be applied against the instalments contemplated by Section 5.1 of this Schedule “P” in the inverse order of maturity of such instalments.

In addition, the Borrower may, upon the same notice, cancel any portion of the Tranche A Credit that has not been drawn by the Borrower. No Commitment Fee shall be payable in respect of any portion of the Tranche A Credit so cancelled as and from the effective date of its cancellation. The Borrower shall not be permitted to draw Tranche A Advances in respect of any portion of the Tranche A Credit so cancelled.

 

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Notwithstanding the foregoing, the Term Loan may not be voluntarily repaid or prepaid, in whole or in part, and the Tranche A Credit may not be cancelled in whole or in part unless and until such time as the Tranche B Loan has been fully repaid and/or cancelled.

 

  5.3 Cash Collateralization or Payment of Losses Resulting from a Prepayment

If a prepayment to be made (whether under this Schedule “P” or otherwise) would require the repayment of a Tranche A CDOR Advance on a day other than the last day of the Tranche A Designated Period, the Borrower (i) shall provide to the Finnvera Facility Agent cash collateral in an amount equal to the principal amount of such Tranche A CDOR Advance, which cash collateral shall be deemed a repayment of such Tranche A Advance and shall be held by the Finnvera Facility Agent in an interest bearing account and used to repay same at maturity or on the next Tranche A Rollover Date; or (ii) may elect to prepay such Tranche A CDOR Advance and pay to the Finnvera Facility Agent for the account of the Tranche A Lenders the amount of the losses, costs and expenses suffered or incurred by the Tranche A Lenders with respect thereto which are referred to in Section 7.4 of the Credit Agreement.

 

  5.4 Currency of Payments

All payments, repayments and prepayments, as the case may be, of principal and interest under the Term Loan, all other amounts owed under this Schedule “P” and, except as otherwise indicated in the Fee Letter and the Commitment Fee Letter as being payable in US Dollars or Euros, all Tranche A Fees, shall be made in Canadian Dollars alone.

 

  5.5 Payments by the Borrower to the Finnvera Facility Agent

All payments to be made by the Borrower in connection with this Schedule “P” shall be made in funds having same day value to the Finnvera Facility Agent, at the Finnvera Facility Agency Branch, or at any other office or account designated by the Finnvera Facility Agent. Any such payment shall be made on the date upon which such payment is due, in accordance with the terms hereof, no later than 3:00 P.M. (London, England time).

 

  5.6 Payment on a Business Day

Each time a payment, repayment or prepayment is due (whether under this Schedule “P” or otherwise) on a day that is not a Business Day, it shall be made on the following Business Day.

 

  5.7 Payments by the Tranche A Lenders to the Finnvera Facility Agent

Any amounts payable to the Finnvera Facility Agent by a Tranche A Lender shall be paid in funds having same day value to the Finnvera Facility Agent by such Tranche A Lender on a Business Day at the Finnvera Facility Agency Branch.

 

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  5.8 Payments by the Finnvera Facility Agent to the Borrower

Any payment received by the Finnvera Facility Agent for the account of the Borrower shall be paid in funds having same day value to the Borrower on the date of receipt, or if such date is not a Business Day, on the next Business Day.

 

  5.9 Application of Payments

 

  5.9.1 Except as otherwise indicated herein, all payments made to the Finnvera Facility Agent by the Borrower for the account of the Tranche A Lenders shall be distributed the same day by the Finnvera Facility Agent, in accordance with its normal practice, in funds having same day value, among the Tranche A Lenders to the accounts last designated in writing by each Tranche A Lender to the Finnvera Facility Agent, pro rata in accordance with their respective Tranche A Commitments, and notice thereof shall be given to the Borrower by the Finnvera Facility Agent within a reasonable delay.

 

  5.9.2 Except as otherwise indicated herein or as otherwise determined by the Tranche A Lenders, all payments made by the Borrower to the Finnvera Facility Agent on behalf of the Tranche A Lenders shall be applied by the Tranche A Lenders as follows:

 

  (a) to the fees, costs, expenses and accessories of the Finnvera Facility Agent and the Security Agent contemplated by Article 7 and Section 17.5 of the Credit Agreement and subsection 8.1.1 (iii) of this Schedule “P” or by the Security Documents;

 

  (b) to the fees, costs, expenses and accessories of the Tranche A Lenders contemplated by Article 7 and Section 17.5 of the Credit Agreement or by the Security Documents;

 

  (c) to all amounts due under Article 4 of this Schedule “P”;

 

  (d) to the repayment of the principal amount of the Term Loan in the inverse order of maturity of the instalments contemplated by Section 5.1 of this Schedule “P”;

 

  (e) to any other amounts due pursuant to this Schedule “P”.

 

  5.10 No Set-Off or Counterclaim by Borrower

All payments by the Borrower shall be made free and clear of and without any deduction for or on account of any set-off or counterclaim.

 

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  5.11 Obligations Absolute

The obligation of the Borrower to make payments and perform its other obligations under this Schedule “P” are, subject to the terms and conditions of this Schedule “P”, unconditional and irrevocable and shall not be in any way affected, released or discharged by reason of any matter or circumstance whatsoever affecting or relating to or arising in connection with NSN and/or the NSN Contract.

 

6. CONDITIONS PRECEDENT

 

  6.1 Initial Tranche A Advance under the Finnvera Term Facility

The terms and conditions of this Schedule “P” and all rights and obligations of any of the Borrower, the Finnvera Facility Agent and the Tranche A Lenders under this Schedule “P” shall not come into force or effect and, for greater certainty, the Tranche A Lenders shall have no obligation to make an initial Tranche A Advance under the Finnvera Term Facility, until such time as each of the conditions set out in this Section 6.1 of this Schedule “P” have been fulfilled (either prior to or concurrently with the making of any such initial Tranche A Advance) to the entire satisfaction of the Finnvera Facility Agent and the Tranche A Lenders:

 

  6.1.1 certified copies of all of the constating documents, borrowing by-laws and resolutions of and certificates of incumbency of the Borrower and the Guarantors shall have been provided to the Finnvera Facility Agent and the Security Agent;

 

  6.1.2 the Tranche A Lenders and the Tranche B Lenders shall have been provided with satisfactory evidence that the Borrower and the Guarantors are duly constituted, validly existing and in good standing under the laws of their jurisdiction of organization and each other jurisdiction where they are qualified to do business and that each of them has the necessary power and capacity to carry on business in the Province of Québec and to be a party to the Amending Agreement, the Tranche B Loan Agreement and/or the Security Documents (as applicable) and to be bound by them;

 

  6.1.3 the Amending Agreement shall have been duly executed and delivered;

 

  6.1.4 the Tranche B Loan Agreement shall have been duly executed and delivered;

 

  6.1.5 the Commitment Fee Letter shall have been duly executed and delivered;

 

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  6.1.6 the Finnvera Facility Agent shall have received copies of all closing documentation previously delivered to the Agent by or on behalf of the Borrower in connection with the Credit Agreement and relating to the Borrower or any of the Guarantors or their respective property including, without limitation, the Security Documents and copies of all existing title and search reports prepared by lawyers or notaries with respect to any immovable property charged by the Security Documents, together with all existing updates of same;

 

  6.1.7 the Borrower shall have delivered to the Finnvera Facility Agent a certificate in the form of Exhibit “P-3” signed by an officer stipulating and certifying:

 

  (a) that such officer has taken cognizance of all the terms and conditions of the Amending Agreement and of all contracts, agreements and deeds pertaining to the Amending Agreement;

 

  (b) that no Default or Event of Default has occurred or exists under this Schedule “P”;

 

  (c) that the corporate structure of Quebecor Media Inc. and the VL Group is as set out in the diagram attached to the certificate;

 

  (d) as to the location of the movable property owned by the VL Group as of the Signing Date;

 

  (e) that each member of the VL Group holds the permits, Licences, licences and authorizations required in order to permit it to possess its property and its real estate and to carry on its business in the manner in which it is being carried on at present; and

 

  (f) that the execution and delivery of and performance by the Borrower of its obligations under the NSN Contract in accordance with its terms and the completion of the transactions contemplated therein do not require any consents or approvals, do not violate any Laws, and do not conflict with, violate or constitute a breach under the documents of incorporation or by-laws of the Borrower;

 

  6.1.8 Finnvera shall have delivered to the Finnvera Facility Agent and the Finnvera Facility B Agent the ECA Guarantee in form and substance satisfactory to the Tranche A Lenders and the Tranche B Lenders;

 

  6.1.9 the Tranche A Lenders and the Tranche B Lenders shall have received a certified copy of the NSN Contract;

 

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  6.1.10 the Finnvera Facility Agent shall have received and reviewed, to its entire satisfaction, acting reasonably, copies of all movable and personal property and other searches undertaken against the Borrower and each Guarantor and each of their respective predecessors and dated a date reasonably close to the Signing Date;

 

  6.1.11 the Finnvera Facility Agent shall have received a copy of any certificates of insurance delivered to the Agent relating to policies protecting the members of the VL Group and their movable property, activities, business interruption and third party liability against any form of loss;

 

  6.1.12 the Borrower shall have delivered any other document, declaration, certificate, agreement, instrument or notice reasonably required by and in form and substance acceptable to the Finnvera Facility Agent, the Finnvera Facility B Agent, the Security Agent and the Finnvera Facility B Security Agent;

 

  6.1.13 the Finnvera Facility Agent shall have received a certificate of incumbency of NSN and evidence that the persons listed therein are authorized signatories of NSN;

 

  6.1.14 the Finnvera Facility Agent, the Tranche A Lenders, the Security Agent, the Finnvera Facility B Agent, the Tranche B Lenders, the Finnvera Facility B Security Agent, Finnvera and their respective counsel shall have received the entire amount of all fees, costs, premiums and expenses owed to them as of the Signing Date in connection with the Finnvera Term Facility, the Tranche B Loan, the Amending Agreement, the Tranche B Loan Agreement and the Security Documents (as applicable) including, without limitation, the Finnvera Handling Fee, the ECA Premium A (as applicable) and all Tranche A Fees that are due and payable as at the Signing Date;

 

  6.1.15 the Borrower shall have delivered to the Finnvera Facility Agent the favourable legal opinion of counsel to the Borrower and the Guarantors, addressed to the Finnvera Facility Agent, the Security Agent, the Tranche A Lenders and their respective counsel, in form and substance acceptable to the Finnvera Facility Agent, the Security Agent, and their counsel, acting reasonably, including, with regard to the continued legality, validity, enforceability and opposability of all relevant Guarantees and Security;

 

  6.1.16 the Borrower shall have delivered to the Finnvera Facility B Agent the favourable legal opinion of counsel to the Borrower and the Guarantors, addressed to the Finnvera Facility B Agent, the Finnvera Facility B Security Agent, the Tranche B Lenders and their respective counsel, in form and substance acceptable to the Finnvera Facility B Agent, the Finnvera Facility B Security Agent and their counsel, acting reasonably;

 

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  6.1.17 the Finnvera Facility Agent shall have received the favourable legal opinion of each of their Canadian and Finnish counsel addressed to the Finnvera Facility Agent, the Security Agent, the Tranche A Lenders and their respective counsel, in form and substance acceptable to the Finnvera Facility Agent, the Security Agent, and their counsel, acting reasonably, including, with respect to the opinion of Finnish counsel only, with regard to the legality, validity and enforceability of the ECA Guarantee; and

 

  6.1.18 the Finnvera Facility B Agent shall have received the favourable legal opinion of each of their Canadian and Finnish counsel addressed to the Finnvera Facility B Agent, the Finnvera Facility B Security Agent, the Tranche B Lenders and their respective counsel, in form and substance acceptable to the Finnvera Facility B Agent, the Finnvera Facility B Security Agent, and their counsel, acting reasonably, including, with respect to the opinion of Finnish counsel only, with regard to the legality, validity and enforceability of the ECA Guarantee.

 

  6.2 Initial Tranche A Advance under the Finnvera Term Facility after the Closing Date

The terms and conditions of this Schedule “P”, as amended on the Closing Date, and all rights and obligations of any of the Borrower, the Finnvera Facility Agent and the Tranche A Lenders under this Schedule “P”, as amended on the Closing Date, shall not come into force or effect and, for greater certainty, the Tranche A Lenders shall have no obligation to make an initial Tranche A Advance under the Finnvera Term Facility after the Closing Date until such time as:

 

  6.2.1 the Finnvera Facility Agent has received, to its entire satisfaction, an amendment to the ECA Guarantee; and

 

  6.2.2 the Finnvera Facility B Agent has received, to its entire satisfaction, an irrevocable written notice from the Borrower requesting the cancellation of the Tranche B Credit and termination of the Tranche B Loan Agreement.

 

  6.3 Conditions Precedent to any Tranche A Advance

The obligation of the Tranche A Lenders to make any Tranche A Advance under the Finnvera Term Facility is conditional upon each of the following conditions having been satisfied (provided however, for greater certainty, that, except for the condition set forth in subsection 6.3.1, none of the following conditions shall apply in respect of any

 

14


continuation of a Tranche A Advance on a Tranche A Rollover Date pursuant to Section 3.3 of this Schedule “P”):

 

  6.3.1 the representations and warranties contained in the Credit Agreement shall continue to be true and correct (except where stated to be made as at a particular date);

 

  6.3.2 the Borrower shall have delivered to the Finnvera Facility Agent a completed Tranche A Notice of Borrowing;

 

  6.3.3 nothing shall have occurred which would constitute a Material Adverse Change; and

 

  6.3.4 no Default shall have occurred and be continuing and no Event of Default shall have occurred.

 

  6.4 Waiver of Conditions Precedent

The conditions set out in Section 6.3 of this Schedule “P” are solely for the benefit of the Tranche A Lenders and may be waived by the Finnvera Facility Agent with the unanimous consent of all Tranche A Lenders without prejudice to the right of the Finnvera Facility Agent to assert any such condition in connection with any subsequently requested Tranche A Advance.

 

  6.5 Discretionary Requirements to any Tranche A Advance

The obligation of the Tranche A Lenders to make any Tranche A Advance under the Finnvera Term Facility may, in the sole and exclusive discretion of the Tranche A Lenders, be subject to the Finnvera Facility Agent and/or the Tranche A Lenders requesting satisfaction of the following requirements, which requirements shall, in the case of requirements 6.5.1 to 6.5.3 only, be attested to by way of a Tranche A Borrowing Certificate to be delivered concurrently with the delivery of the Tranche A Notice of Borrowing relating to such Tranche A Advance:

 

  6.5.1 that the Borrower has delivered to the Finnvera Facility Agent a completed Tranche A Borrowing Certificate with copies of all Required Documents annexed thereto, which Tranche A Borrowing Certificate and Required Documents shall reflect that (a) the aggregate principal amount of all Tranche A Advances made to date, together with the principal amount of the proposed Tranche A Advance, does not exceed the sum of (i) the CAD Equivalent of (x)  85% of the portion of the Purchase Price paid to date and (y)  costs for local services up to a maximum of 30% of such portion of the Purchase Price paid to date and (ii) up to 100% of the upfront portion of the ECA Premium A; and (b) all invoices which have been issued to the Borrower to date under the NSN Contract and in respect of which the Tranche A Notice of Borrowing referred to in subsection 6.3.2 above has been delivered by the Borrower have been paid in full;

 

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  6.5.2 that all of the information, reports and other documents and all data, as well as the amendments thereto, provided to the Finnvera Facility Agent or to Finnvera, by or on behalf of the Borrower in connection with the NSN Contract, have been, at the time same were provided, complete, true and accurate in all material respects;

 

  6.5.3 that the NSN Contract has not been terminated and has been in full force and effect as of the date of any invoice of NSN which is the object of such requested Tranche A Advance;

 

  6.5.4 that the ECA Guarantee has not been terminated and is in full force and effect; and

 

  6.5.5 that the Finnvera Facility Agent has not received any request from Finnvera that the Tranche A Advances be suspended unless any such request has since been withdrawn.

The provisions of this Section 6.5 may not be amended or added to, at any time or from time to time, without the written consent and agreement of the Finnvera Facility Agent and the Tranche A Lenders.

 

7. INTENTIONALLY OMITTED

 

8. ADDITIONAL COVENANTS

In addition to the affirmative covenants and negative covenants set forth in Articles 12 and 13 of the Credit Agreement, respectively, the Borrower, for itself and each member of the VL Group and with respect to itself and each member of the VL Group, agrees as follows:

 

  8.1 Payment of Fees and Other Expenses

Without duplication with Section 12.14 of the Credit Agreement and whether the transactions contemplated by this Schedule “P” are concluded or not and whether or not any part of the Tranche A Credit is actually advanced, in whole or in part, the Borrower shall pay all fees, premiums and reasonable costs and expenses relating to the Tranche A Credit (in each case, subject to providing the Borrower with supporting documentation in relation thereto), including in particular:

 

  8.1.1

the reasonable legal fees, costs and expenses incurred by Finnvera, the Finnvera Facility Agent, the Security Agent and the Tranche A Lenders for (i) the negotiation, drafting, signing and/or service of the Commitment Fee Letter, the Credit Agreement, the Security Documents, the ECA Guarantee and all documents accessory thereto,

 

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  (ii) any amendments, renunciations, consents or examinations pertaining to the Commitment Fee Letter, the Credit Agreement, the Security Documents, the ECA Guarantee and such accessory documents, and (iii) any enforcement of or the making of any claim under the ECA Guarantee, provided that the payment pursuant to this subsection 8.1.1 of fees, costs and expenses incurred by Finnvera shall be subject to and limited to what is permitted by the terms of Section 8.2 of this Schedule “P”; and

 

  8.1.2 without duplication with subsection 8.1.1 of this Schedule “P”, all Tranche A Fees.

All amounts due to the Finnvera Facility Agent, the Security Agent and the Tranche A Lenders pursuant to this Schedule “P” shall bear interest at the Default Rate from the date of their disbursement or undertaking or, in the case of the Commitment Fee, the Finnvera Handling Fee and the Tranche A Fees, from the date on which they become due and payable, until the Borrower has repaid same in full, with interest on unpaid interest at the Default Rate. The obligations of the Borrower under this Section 8.1 shall subsist notwithstanding the full repayment of the Term Loan under the provisions hereof.

 

  8.2 Waiver Fees

 

  8.2.1 The Borrower shall pay to the Finnvera Facility Agent, for the account of Finnvera, all fees owed to the Tranche A Lenders in connection with any decisions taken, amendments consented to and waivers and consents granted to the Borrower (further to the request of the Borrower for same) by the Tranche A Lenders pursuant to Section 18.14 of the Credit Agreement with respect to any provisions of the Credit Agreement which are either applicable only to the Finnvera Term Facility or are shared between and applicable to both the Revolving Facility and the Finnvera Term Facility (in which latter case, such fees shall only be paid to the Finnvera Facility Agent, for the account of Finnvera, if they are otherwise payable to any other Lenders), the whole only to the extent either (a) such decisions, amendments, consents and waivers are taken, consented to or granted by the Tranche A Lenders in the last six (6) months of the Term of the Revolving Facility and in accordance with the request made by the Borrower, or (b) such decisions, amendments, consents and waivers are taken, consented to or granted by the Tranche A Lenders during the Availability Period strictly in connection with a Default or an Event of Default and in accordance with the request made by the Borrower.

 

  8.2.2

The Borrower shall also pay to the Finnvera Facility Agent, for the account of Finnvera, all fees owed to the Tranche A Lenders in connection with any decisions taken, amendments consented to and

 

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  waivers and consents granted to the Borrower (further to the request of the Borrower for same) by the Tranche A Lenders pursuant to Section 18.15 of the Credit Agreement but, to the extent there are Lenders other than the Tranche A Lenders, only if such fees are otherwise payable to such other Lenders.

 

  8.3 ECA Guarantee

If (i) the ECA Guarantee is illegal or becomes illegal or is terminated or no longer in full force and effect or (ii) Finnvera is released from any liability thereunder, and the events in (i) or (ii) above in any way restrict the rights or remedies of the Finnvera Facility Agent under the ECA Guarantee in respect of any amounts already disbursed to the Borrower by way of Tranche A Advances and any interest accrued thereon, the Borrower shall, within 10 days following the date on which the Finnvera Facility Agent makes a written demand therefor, find a replacement guarantee or other instrument satisfactory to all Tranche A Lenders, unless within such 10 day period all Tranche A Lenders confirm in writing that the Borrower is released from its obligations under this covenant, it being understood and agreed that any such replacement guarantee or instrument and any proceeds derived therefrom shall be for the sole and exclusive benefit of the Tranche A Lenders, provided that the Borrower shall not be obligated or liable under this Section 8.3 to the extent the events in (i) or (ii) above are a direct consequence of any act of fraud or bad faith or any gross negligence or wiful misconduct of or on the part of the Finnvera Facility Agent or the Tranche A Lenders.

 

  8.4 Cancellation of Tranche B Credit

The Borrower shall have sent to the Finnvera Facility B Agent by no later than the Closing Date an irrevocable written notice requesting the cancellation of the Tranche B Credit and termination of the Tranche B Loan Agreement.

 

9. EVENTS OF DEFAULT

In addition to the events of default set forth in Article 14 of the Credit Agreement, the occurrence of any of the following events shall constitute an Event of Default unless remedied within the prescribed delays or renounced in writing:

 

  9.1 if the Borrower fails to pay the ECA Premium A or make any payment of interest or principal with respect to the Term Loan when due, or

 

  9.2 if the Borrower fails to respect its obligations and undertakings under Section 8.3, or

 

  9.3 if the Borrower or any Guarantor fails to respect any of its obligations and undertakings under this Schedule “P” or another undertaking of the Borrower or any Guarantor with respect to the Term Loan not otherwise contemplated by this Section 9.3 or by Section 14.1 of the Credit Agreement and has not remedied the Default within 15 days following the date on which the Finnvera Facility Agent has given written notice to the Borrower.

 

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10. ASSIGNMENT

 

  10.1 Assignment by the Borrower

The rights of the Borrower under the provisions of the Credit Agreement are purely personal and may not be transferred or assigned, and the Borrower may not transfer or assign any of its obligations, such assignment being null and of no effect opposite the Tranche A Lenders and rendering any balance outstanding of the amounts referred to in Section 14.2 of the Credit Agreement immediately due and payable at the option of the Tranche A Lenders and further releasing the Tranche A Lenders from any obligation to make any further Tranche A Advances under the provisions of this Schedule “P”.

 

  10.2 Assignments and Transfers by the Tranche A Lenders

 

  10.2.1 Subject to the written approval of Finnvera, each Tranche A Lender may, at its own cost, assign or transfer to a Person entitled to lend money in Canada (the “ Tranche A Assignee ”) in accordance with this Article 10 of this Schedule “P” up to 100% of its rights, benefits and obligations under the Credit Agreement with the prior written consent of the Borrower, which shall not be unreasonably withheld or delayed. After the occurrence of an Event of Default, any Tranche A Lender may transfer all or any part of its rights, benefits and obligations under the Credit Agreement to any Person, without the consent of the Borrower, but upon notice to the Finnvera Facility Agent and the Borrower and subject to the consent of Finnvera.

 

  10.2.2 Notwithstanding subsection 10.2.2 of this Schedule “P”, each Tranche A Lender shall be entitled to assign or transfer, at its own cost and without the consent of the Borrower, in accordance with the other provisions of this Article 10 of this Schedule “P”, its rights, benefits and obligations under the Credit Agreement, in whole or in part, (i) to Finnvera; (ii) subject to the written approval of Finnvera, after the Availability Period; or (iii) subject to the written approval of Finnvera, to a parent or subsidiary corporation or an Affiliate of such Tranche A Lender or to an Approved Fund.

 

  10.2.3 Notwithstanding anything in this Article 10, a Tranche A Lender may not assign or transfer any of its rights, benefits and obligations under the Credit Agreement, in whole or in part, unless such Tranche A Lender also assigns and transfers, in its capacity as Tranche B Lender and concurrently therewith, the same portion of its rights, benefits and obligations with respect to the Tranche B Loan to the same assignee.

 

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  10.3 Transfer Agreement

If a Tranche A Lender wishes to assign or transfer all or any of its rights, benefits and obligations under the Credit Agreement in accordance with Section 10.2 of this Schedule “P”, then such assignment or transfer shall be effected by the execution and delivery of a duly completed and executed Finnvera Transfer Agreement by such Tranche A Lender to the Finnvera Facility Agent together with a transfer fee of Cdn.$3,500 (except where the Tranche A Assignee is Finnvera in which case no such transfer fee shall be payable), at least 5 Business Days prior to the effective date of such transfer, whereupon, to the extent that in such Finnvera Transfer Agreement such Tranche A Lender seeks to assign or transfer its rights and obligations under the Credit Agreement:

 

  10.3.1 such Tranche A Lender shall be released from further obligations to the Borrower with respect to the portion of the obligations of such Tranche A Lender assumed by the Tranche A Assignee under the Credit Agreement;

 

  10.3.2 the Tranche A Assignee shall assume the obligations of such Tranche A Lender under the Credit Agreement and acquire the rights of such Tranche A Lender in respect of the Borrower, without novation of the Borrower’s obligations;

 

  10.3.3 the Finnvera Facility Agent, such Tranche A Lender and the Tranche A Assignee shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had the Tranche A Assignee been an original party to the Credit Agreement with the obligations under the Credit Agreement assumed and the rights acquired by it as a result of such assignment or transfer; and

 

  10.3.4 the Borrower, the Finnvera Facility Agent and such Tranche A Lender shall all execute such documents and perform such acts as may be required to give effect to the transfer or assignment.

 

  10.4 Notice

The Finnvera Facility Agent shall promptly deliver an executed copy of any Finnvera Transfer Agreement to each party thereto.

 

  10.5 Sub-Participations

A Tranche A Lender may, at its own cost, grant one or more sub-participations in its rights, benefits and obligations under the Credit Agreement, provided that, notwithstanding any such sub-participation, such Tranche A Lender shall remain, insofar as the Borrower and the Finnvera Facility Agent are concerned, as the Tranche A Lender

 

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responsible under the Credit Agreement, and the Borrower shall not be obliged to recognize any such sub-participant as having the rights against it which it would have if it had been a party to the Credit Agreement.

 

  10.6 General

Notwithstanding anything contained in this Article:

 

  10.6.1 The Finnvera Facility Agent shall act as agent for each Tranche A Assignee and, in this connection, with respect to all decisions, notices and other matters relating to anything referred to in this Schedule “P” or in the Credit Agreement relating to the Finnvera Term Facility, the Borrower shall only be obliged to give notice to or request consents from the Finnvera Facility Agent; and

 

  10.6.2 the amounts payable by the Borrower under this Schedule “P” shall not increase, whether in respect of withholding on account of taxes or otherwise, as a result of any such assignment or transfer to a Tranche A Assignee which is a non-resident of Canada as defined in the Income Tax Act (Canada).

 

11. THE FINNVERA FACILITY AGENT AND THE TRANCHE A LENDERS

 

  11.1 Authorization of Finnvera Facility Agent

 

  11.1.1

Each Tranche A Lender hereby irrevocably appoints and authorizes the Finnvera Facility Agent to act for all purposes as its agent under and in connection with the Finnvera Term Facility (including, without limitation, its role as guarantee holder of the ECA Guarantee for and on behalf of the Tranche A Lenders pursuant to the ECA Guarantee) with such powers as are expressly delegated to the Finnvera Facility Agent by the terms of the Credit Agreement and/or the ECA Guarantee, together with such other powers as are reasonably incidental thereto and undertakes not to take any action on its own. Notwithstanding the provisions of the Civil Code of Quebe c relating to contracts generally and to mandate, the Finnvera Facility Agent shall have no duties or responsibilities except those expressly set forth in this Schedule “P”. As to any matters not expressly provided for by this Schedule “P”, the Finnvera Facility Agent shall act under or in connection with this Schedule “P” in accordance with the instructions of the Tranche A Lenders in accordance with the provisions of this Article 11, but, in the absence of any such instructions, the Finnvera Facility Agent may (but shall not be obliged to) act as it shall deem fit in the best interests of the Tranche A Lenders, and any such instructions and any action taken by the Finnvera Facility Agent in accordance with this Article 11 shall be binding upon each Tranche A

 

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  Lender. The Finnvera Facility Agent shall not, by reason of the Credit Agreement and/or the ECA Guarantee, be deemed to be a trustee for the benefit of any Tranche A Lender, the Borrower or any other Person and the Finnvera Facility Agent’s duties under this Schedule “P” and/or the ECA Guarantee are solely mechanical and administrative in nature. Neither the Finnvera Facility Agent nor any of its directors, officers, employees or agents shall be responsible to the Tranche A Lenders for any recitals, statements, representations or warranties contained in the Credit Agreement or in any certificate or other document referred to, or provided for in (including, without limitation, the ECA Guarantee), or received by any of them under, the Credit Agreement and/or the ECA Guarantee, for the value, validity, effectiveness, genuineness, enforceability or sufficiency of the Credit Agreement, or any other document referred to or provided for in the Credit Agreement (including, without limitation, the ECA Guarantee) or any collateral provided for by the Credit Agreement or for any failure by the Borrower to perform its obligations under the Credit Agreement. The Finnvera Facility Agent may employ agents and attorneys-in-fact to assist the Finnvera Facility Agent and shall not be responsible for the negligence or misconduct of any such agents or attorneys-in-fact selected by it with reasonable care. Neither the Finnvera Facility Agent nor any of its directors, officers, employees or agents shall be responsible for any action taken or omitted to be taken by it or them under or in connection with the Credit Agreement (including, without limitation, the ECA Guarantee), except for its or their own gross negligence or wilful misconduct.

 

  11.2 Finnvera Facility Agent’s Responsibility

 

  11.2.1 The Finnvera Facility Agent shall be entitled to rely upon any certificate, notice or other document (including any cable, telegram, telex or facsimile) believed by it to be genuine and correct and to have been signed or sent by or on behalf of the proper person or persons, and upon advice and statements of legal advisers, independent accountants and other experts selected by the Finnvera Facility Agent. The Finnvera Facility Agent may deem and treat each Tranche A Lender as the holder of the Tranche A Commitment in the Term Loan made by such Tranche A Lender for all purposes hereof unless and until a Tranche A Assignment has been completed in accordance with Section 10.2 of this Schedule “P”.

 

  11.2.2

The Finnvera Facility Agent shall not be deemed to have knowledge of the occurrence of a Default or Event of Default unless the Finnvera Facility Agent has received notice from the Agent, a Tranche A Lender or the Borrower describing such a Default or Event of Default and stating that such notice is a “Notice of Default”. In the event that

 

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  the Finnvera Facility Agent receives such a notice of the occurrence of a Default or Event of Default or otherwise becomes aware that a Default or Event of Default has occurred, the Finnvera Facility Agent shall promptly give notice thereof to the Tranche A Lenders.

 

  11.2.3 The Finnvera Facility Agent shall have no responsibility, (a) to the Borrower on account of the failure of any Tranche A Lender to perform its obligations under the Credit Agreement, or (b) to any Tranche A Lender on account of the failure of (i) the Borrower to perform its obligations under the Credit Agreement or (ii) Finnvera to perform its obligations under the ECA Guarantee.

 

  11.2.4 Each Tranche A Lender severally represents and warrants to the Finnvera Facility Agent that it has made its own independent investigation of the financial condition and affairs of the Borrower in connection with the making and continuation of its Tranche A Commitment in the Term Loan under this Schedule “P” and has not relied on any information provided to such Tranche A Lender by the Finnvera Facility Agent in connection with the Credit Agreement (including, without limitation, the ECA Guarantee), and each Tranche A Lender represents and warrants to the Finnvera Facility Agent that it shall continue to make its own independent appraisal of the creditworthiness of the Borrower while the Term Loan is outstanding or the Tranche A Lenders have any obligations under the Credit Agreement.

 

  11.3 Rights of Finnvera Facility Agent as Tranche A Lender

With respect to its Tranche A Commitment in the Term Loan, the Finnvera Facility Agent in its capacity as a Tranche A Lender shall have the same rights and powers under the Credit Agreement as any other Tranche A Lender and may exercise the same as though it were not acting as the Finnvera Facility Agent and the term “Tranche A Lender” shall, unless the context otherwise indicates, include the Finnvera Facility Agent in its capacity as a Tranche A Lender. The Finnvera Facility Agent may (without having to account therefor to any Tranche A Lender) accept deposits from, lend money to and generally engage in any kind of banking or other business with the Borrower as if it were not acting as the Finnvera Facility Agent and may accept fees and other consideration from the Borrower for customary services in connection with the Credit Agreement and the Term Loan and otherwise without having to account for the same to the Tranche A Lenders.

 

  11.4 Indemnity

Each Tranche A Lender agrees to indemnify the Finnvera Facility Agent, to the extent not otherwise reimbursed by the Borrower, rateably in accordance with its respective Tranche A Commitment, for any and all liabilities, obligations, losses, damages,

 

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penalties, actions, judgements, suits, costs, expenses or disbursements of any kind and nature whatsoever which may be imposed on, incurred by or asserted against, the Finnvera Facility Agent in any way relating to or arising out of the Credit Agreement, the Security Documents or any other documents contemplated by or referred to in the Credit Agreement, the Security Documents or such other documents or the transactions contemplated by the Credit Agreement (including, without limitation, the ECA Guarantee), the Security Documents or such other documents (excluding, unless a Default or Event of Default is apprehended or has occurred and is continuing, normal administrative costs and expenses incidental to the performance of its agency duties under the Credit Agreement) or the enforcement of any of the terms of the Credit Agreement, the Security Documents or such other documents (including, without limitation, the ECA Guarantee), provided that no Tranche A Lender shall be liable for any of the foregoing to the extent they arise from the Finnvera Facility Agent’s gross negligence or wilful misconduct.

 

  11.5 Notice by Finnvera Facility Agent to Tranche A Lenders

As soon as practicable after its receipt thereof, the Finnvera Facility Agent will forward to each Tranche A Lender a copy of each report, notice or other document required by the Credit Agreement to be delivered to the Finnvera Facility Agent for such Tranche A Lender.

 

  11.6 Protection of Finnvera Facility Agent

 

  11.6.1 The Finnvera Facility Agent shall not be required to keep itself informed as to the performance or observance by the Borrower of the Credit Agreement or any other document referred to or provided for in the Credit Agreement or such other document or to inspect the properties or books of the Borrower. Except (in the case of the Finnvera Facility Agent) for notices, reports and other documents and information expressly required to be furnished to the Tranche A Lenders by the Finnvera Facility Agent under the Credit Agreement, the Finnvera Facility Agent shall have no duty or responsibility to provide any Tranche A Lender with any credit or other information concerning the affairs or financial condition of the Borrower which may come to the attention of the Finnvera Facility Agent, except where provided to the Finnvera Facility Agent for the Tranche A Lenders, provided that such information does not confer any advantage to the Finnvera Facility Agent as a Tranche A Lender over the other Tranche A Lenders. Nothing in the Credit Agreement shall oblige the Finnvera Facility Agent to disclose any information relating to the Borrower if such disclosure would or might, in the opinion of the Finnvera Facility Agent, constitute a breach of any Applicable Laws or duty of secrecy or confidence.

 

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  11.6.2 Unless the Finnvera Facility Agent shall have been notified in writing or by telegraph, telex or facsimile by any Tranche A Lender, prior to the date of a Tranche A Advance requested under this Schedule “P” or the Tranche A Rollover Date, that such Tranche A Lender does not intend to make available to the Finnvera Facility Agent such Tranche A Lender’s proportionate share of such Tranche A Advance, based on its Tranche A Commitment, the Finnvera Facility Agent may assume that such Tranche A Lender has made such Tranche A Lender’s Tranche A Commitment in such Tranche A Advance available to the Finnvera Facility Agent on the date of such Tranche A Advance and the Finnvera Facility Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such corresponding amount is not in fact made available to the Finnvera Facility Agent by such Tranche A Lender (and such amount was disbursed by the Finnvera Facility Agent to the Borrower), the Finnvera Facility Agent shall be entitled to recover such amount (together with interest thereon at the rate determined by the Finnvera Facility Agent as being its cost of funds in the circumstances) on demand from such Tranche A Lender or, if such Tranche A Lender fails to reimburse the Finnvera Facility Agent for such amount on demand, from the Borrower.

 

  11.6.3 Unless the Finnvera Facility Agent shall have been notified in writing or by telegraph, telex or facsimile by the Borrower, prior to the date on which any payment is due, to the Finnvera Facility Agent or the Tranche A Lenders under the Credit Agreement that the Borrower does not intend to make such payment, the Finnvera Facility Agent may assume that the Borrower has made such payment when due and the Finnvera Facility Agent may, in reliance upon such assumption, make available to each Tranche A Lender on such payment date an amount equal to such Tranche A Lender’s pro rata share of such assumed payment. If it is established that the Borrower has not in fact made such payment to the Finnvera Facility Agent, each Tranche A Lender shall forthwith on demand repay to the Finnvera Facility Agent the amount made available to such Tranche A Lender (together with interest at the rate determined by the Finnvera Facility Agent as being its cost of funds in the circumstances).

 

  11.7 Notice by Tranche A Lenders to Finnvera Facility Agent

Each Tranche A Lender shall endeavour to use its best efforts to notify the Finnvera Facility Agent of the occurrence of any Default or Event of Default forthwith upon becoming aware of such event, but no Tranche A Lender shall be liable if it fails to give such notice to the Finnvera Facility Agent.

 

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  11.8 Sharing Among the Tranche A Lenders

Without duplication with Section 18.8 of the Credit Agreement:

 

  11.8.1 Each Tranche A Lender agrees that as amongst themselves, except as otherwise provided for by the provisions of the Credit Agreement, all amounts received by the Finnvera Facility Agent, in its capacity as agent of the Tranche A Lenders, pursuant to the Credit Agreement or any other document contemplated by the Credit Agreement (including, without limitation, in its role as guarantee holder for and on behalf of the Tranche A Lenders pursuant to the ECA Guarantee) (whether received by voluntary payment, by the exercise of the right of set-off or compensation or by counterclaim, cross-claim, separate action or as proceeds of realization of any security, other than agency fees), and all amounts received by any Tranche A Lender in relation to the Credit Agreement (including, without limitation, the ECA Guarantee) shall be shared by each Tranche A Lender pro rata , in accordance with their respective Tranche A Commitment and each Tranche A Lender undertakes to do all such things as may be reasonably required to give full effect to this Section 11.8. If any amount which is so shared is later recovered from the Tranche A Lender who originally received it, each other Tranche A Lender shall restore its proportionate share of such amount to such Tranche A Lender, without interest. The Finnvera Facility Agent shall not be bound to account to any Tranche A Lender for any sum or the profit element of any sum received by it for its own account.

 

  11.8.2

As a necessary consequence of the foregoing, each Tranche A Lender shall share, in a percentage equal to its Tranche A Commitment, any losses incurred as a result of any Default or Event of Default by the Borrower, and shall pay to the Finnvera Facility Agent, within two (2) Business Days following a request by the Finnvera Facility Agent, any amount required to ensure that such Tranche A Lender bears its pro rata share of such losses, if any. Such obligation to share losses shall be absolute and unconditional and shall not be affected by any circumstance, including, without limitation, (1) any set-off, compensation, counterclaim, recoupment, defence or other right which such Tranche A Lender may have against the Finnvera Facility Agent, the Borrower or any other Person for any reason whatsoever; (2) the occurrence or continuance of any Default or Event of Default; (3) any adverse change in the condition (financial or otherwise) of the Borrower or any other Person; (4) any breach of the Credit Agreement by the Borrower or any other Person; or (5) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing. If any Tranche A Lender does not make available the amount required under this Section 11.8, the Finnvera Facility Agent

 

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  shall be entitled to recover such amount on demand from such Tranche A Lender, together with interest thereon at the rate determined by the Finnvera Facility Agent as being its cost of funds in the circumstances from the date of non-payment until such amount is paid in full.

 

  11.9 Procedure with respect to Tranche A Advances

Subject to the provisions of this Schedule “P”, upon receipt of a Tranche A Notice of Borrowing or a Notice of New Tranche A Designated Period from the Borrower and no later than three (3) Business Days prior to the date of the proposed Tranche A Advance or the Tranche A Rollover Date, the Finnvera Facility Agent shall, without delay, advise each Tranche A Lender of the receipt of such notice, of the date of such Tranche A Advance or the Tranche A Rollover Date, of its proportionate share of the amount of each Tranche A Advance or continuation thereof and of the relevant details of the Finnvera Facility Agent’s account(s). Each Tranche A Lender shall disburse its proportionate share of each Tranche A Advance, taking into account its Tranche A Commitment, and shall make it available to the Finnvera Facility Agent on the date of the Tranche A Advance fixed by the Borrower, by depositing its proportionate share of the Tranche A Advance in the Finnvera Facility Agent’s account in Canadian Dollars or US Dollars, as the case may be. Once the Borrower has fulfilled the conditions stipulated in this Schedule “P”, the Finnvera Facility Agent will make such amounts available to the Borrower on the date of the Tranche A Advance, at the Finnvera Facility Agency Branch, and, in the absence of other arrangements made in writing between the Finnvera Facility Agent and the Borrower, by transferring or causing to be transferred an equivalent amount in accordance with the instructions of the Borrower which appear in the Tranche A Notice of Borrowing with respect to each Tranche A Advance; however, the obligation of the Finnvera Facility Agent with respect to this Section 11.9 is limited to taking the steps judged commercially reasonable in order to follow such instructions, and once undertaken, such steps shall constitute conclusive evidence that the amounts have been disbursed in accordance with the applicable provisions. The Finnvera Facility Agent shall not be liable for damages, claims or costs imputed to the Borrower and resulting from the fact that the amount of a Tranche A Advance did not arrive at its agreed-upon destination.

 

  11.10 Accounts kept by each Tranche A Lender

Each Tranche A Lender shall keep in its books, in respect of its Tranche A Commitment, accounts for the Tranche A CDOR Advances and other amounts payable by the Borrower to such Tranche A Lender under the Credit Agreement. Each Tranche A Lender shall make appropriate entries showing, as debits, the amount of the Debt of the Borrower to it in respect of the Tranche A CDOR Advances, the amount of all accrued interest and any other amount due to such Tranche A Lender pursuant to the Credit Agreement and, as credits, each payment or repayment of principal and interest made in respect of such indebtedness as well as any other amount paid to such Tranche A Lender pursuant to the Credit Agreement. These accounts shall constitute (in the absence of manifest error or of contradictory entries in the accounts of the Finnvera Facility Agent referred to in Section 3.5 of this Schedule “P”) prima facie evidence of their content against the Borrower.

 

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The accounts which are maintained by the Finnvera Facility Agent shall constitute, except in the case of manifest error, prima facie proof of the amounts advanced by the Tranche A Lenders, the interest and other amounts due to them and the payments of principal, interest or others made to the Tranche A Lenders.

 

  11.11 Binding Determinations

The Finnvera Facility Agent shall proceed in good faith to make any determination which is required in order to apply the Credit Agreement and, once made, such determination shall be final and binding upon all parties, except in the case of manifest error.

 

  11.12 Amendment of Article 11

The provisions of this Article 11 relating to the rights and obligations of the Tranche A Lenders and the Finnvera Facility Agent inter se may not be amended or added to, at any time or from time to time, without the consent and agreement of the Finnvera Facility Agent and the Tranche A Lenders by way of an instrument in writing, which instrument in writing shall validly and effectively amend or add to any or all of the provisions of this Article affecting the Tranche A Lenders without requiring the execution of such instrument in writing by the Borrower.

 

  11.13 Provisions for the Benefit of Tranche A Lenders Only

The provisions of this Article 11 relating to the rights and obligations of the Tranche A Lenders and Finnvera Facility Agent inter se shall be operative as between the Tranche A Lenders and Finnvera Facility Agent only, and the Borrower shall not have any rights or obligations under or be entitled to rely for any purposes upon such provisions. However, the provisions of subsection 11.2.3 of this Schedule “P” shall be applicable as between the Borrower, the Guarantors (if applicable) and the Finnvera Facility Agent.

 

  11.14 Resignation of Finnvera Facility Agent

 

  11.14.1 Notwithstanding the irrevocable appointment of the Finnvera Facility Agent, the Majority Tranche A Lenders and the Majority Tranche B Lenders (as defined in the Tranche B Loan Agreement) may collectively (with the consent of the Borrower), upon giving the Finnvera Facility Agent thirty (30) days prior written notice to such effect, terminate the Finnvera Facility Agent’s appointment under this Schedule “P” provided that a successor Finnvera Facility Agent has been appointed at or prior to the expiry of such notice.

 

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  11.14.2 The Finnvera Facility Agent may resign its appointment under this Schedule “P” at any time without giving any reason therefor by giving written notice to such effect to each of the Borrower and the Tranche A Lenders. Such resignation shall not be effective until a successor Finnvera Facility Agent has been appointed.

 

  11.14.3 In the event of any such notice of termination or resignation, the Majority Tranche A Lenders and the Majority Tranche B Lenders (as defined in the Tranche B Loan Agreement) shall collectively appoint a successor Finnvera Facility Agent that is willing to accept such role and is acceptable to the Borrower within thirty (30) days therefrom, deliver copies of all accounts to such successor and the retiring Finnvera Facility Agent shall be discharged from any further obligations under the Credit Agreement but shall remain entitled to the benefit of the provisions of this Article 11 and the Finnvera Facility Agent’s successor and each of the Borrower and the Tranche A Lenders shall have the same rights and obligations among themselves as they would have had if such successor had originally acted as agent under the Finnvera Term Facility. If the Majority Tranche A Lenders and the Majority Tranche B Lenders have not collectively appointed a successor Finnvera Facility Agent within thirty (30) days of the delivery of any notice of termination or resignation as set forth above, the Finnvera Facility Agent (with the consent of the Borrower, which consent shall not be unreasonably withheld or delayed) may appoint a successor Finnvera Facility Agent.

 

12. NOTICES

Except where otherwise specified in this Schedule “P”, all notices, requests, demands or other communications between the Finnvera Facility Agent, the Tranche A Lenders and the Borrower shall be in writing and shall be deemed to have been duly given or made to the party to whom such notice, request, demand or other communication is given or permitted to be given or made, when delivered to the party (by certified mail, postage prepaid, or electronic mail or by facsimile or by physical delivery) to the address of such party and to the attention indicated under the signature of such party to the Amending Agreement or to any other address which said parties may subsequently communicate to each other in writing. Notwithstanding the foregoing, any notice shall be deemed to have been received by the party to whom it is addressed (a) upon receipt if sent by mail and (b) if e-mailed or telecopied before 3:00 P.M. (time of recipient) on a Business Day, on that day and if telecopied after 3:00 P.M. (time of recipient) on a Business Day, on the Business Day next following the date of transmission. If normal postal or electronic mail or telecopier service is interrupted by strike, work slow-down, fortuitous event or other cause, the party sending the notice shall use such services which have not been interrupted or shall deliver such notice by messenger in order to ensure its prompt receipt by the other party.

 

29


13. REVERSAL OF DECISIONS, AMENDMENTS AND WAIVERS

Upon the expiry of the Term (as such Term may be further extended from time to time) of and the cancellation of the Revolving Facility and the Unsecured Facility, the Tranche A Lenders shall have the option but not the obligation to, in their sole discretion and with the prior written consent of the Majority Tranche A Lenders, reverse any decisions taken, amendments made and waivers and consents granted to the Borrower (further to the request of the Borrower for same) by the Majority Lenders at any time during the last six (6) months of the Term of the Revolving Facility and the Unsecured Facility with respect to any provisions of the Credit Agreement which are shared between and applicable to the Revolving Facility, the Unsecured Facility and the Finnvera Term Facility, the whole to the extent that the Majority Tranche A Lenders did not vote in favour of such decision, amendment, waiver or consent.

 

14. DECISIONS, AMENDMENTS AND WAIVERS

The Borrower agrees and acknowledges that in connection with any request made by it for any material amendment, consent or waiver under the Loan Documents, the Finnvera Facility Agent shall seek the consent of Finnvera and comply with the written instructions and notices of Finnvera in respect of any such request.

 

15. CONFIDENTIALITY

Each of the Finnvera Facility Agent and the Tranche A Lenders agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a) on a need to know basis, to its Affiliates and its Affiliates’ respective partners, directors, officers, employees, agents, advisors and representatives (to the extent necessary to administer or enforce the Credit Agreement) (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and will be bound and instructed to keep such Information confidential); (b) to the extent requested by any regulatory authority having jurisdiction over it (including any self-regulatory authority); (c) to the extent required by Applicable Law or other legal process; (d) to any other party to the Credit Agreement; (e) to the extent reasonable, in connection with the exercise of any remedies under the Credit Agreement or any action or proceeding relating to the Credit Agreement or the enforcement of rights under the Credit Agreement; (f) subject to an agreement containing provisions substantially the same as those of this Article, to (x)  any Tranche A Assignee or participant in, or any prospective Tranche A Assignee of or participant in, any of its rights or obligations under this Schedule “P” and (y)  any actual or prospective counterparty (or its advisors) to any swap, hedge, derivative, credit-linked note or similar transaction relating to the Borrower and its obligations; (g) to any Person with the consent of the Borrower; (h) to any Person to the extent such Information (x)  is or becomes publicly available other than as a result of a breach of this Article or (y)  becomes available to the Finnvera Facility Agent or any Tranche A Lender on a non-confidential basis from a source other than the Borrower and provided such source has not, to the knowledge of the Finnvera Facility Agent or such Tranche A Lender, breached

 

30


a duty of confidentiality owed to the Borrower, the Finnvera Facility Agent or the Tranche A Lenders; (i) to Finnvera; or (j) to NSN, to the extent necessary in the reasonable opinion of the Finnvera Facility Agent and only in respect of the mechanics of the disbursement of Tranche A Advances. For purposes of this Article, “Information” means all information relating to the Borrower or any of its Affiliates or any of their respective businesses including all information relating to the transactions contemplated by this Schedule “P”, other than any such information that is available to the Finnvera Facility Agent or any Tranche A Lender on a non-confidential basis prior to such receipt. Any Person required to maintain the confidentiality of Information as provided in this Article shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information. In addition, the Finnvera Facility Agent may disclose to any agency or organization that assigns standard identification numbers to loan facilities such basic information describing the facilities provided hereunder as is necessary to assign unique identifiers (and, if requested, supply a copy of this Schedule “P”), it being understood that the Person to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to make available to the public only such Information as such person normally makes available in the course of its business of assigning identification numbers. In addition, and notwithstanding anything in this Schedule “P” to the contrary, the Finnvera Facility Agent and the Tranche A Lenders may disclose the existence of the credit facilities established under this Schedule “P” and non-sensitive information relating to same to Finnvera (who may publish same on their website), market data collectors, recognized trade publishers and similar service providers for general circulation in the loan market and/or for general advertising purposes.

 

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EXHIBIT “P-1” - LIST OF TRANCHE A LENDERS AND TRANCHE A COMMITMENTS

 

Tranche A Lender

   Tranche A
Commitment (Cdn.$)
     Tranche A
Commitment (%)
 

The Toronto-Dominion Bank

   $ 37,500,000         50.0

HSBC Bank plc

   $ 28,125,000         37.5

Sumitomo Mitsui Banking Corporation of Canada

   $ 9,375,000         12.5
  

 

 

    

 

 

 

Total

   $ 75,000,000         100


EXHIBIT “P-1A” - TRANCHE A NOTICE OF BORROWING

 

TO:       HSBC BANK PLC , as Finnvera Facility Agent   
FROM:       VIDÉOTRON LTÉE    DATE:

1) This Tranche A Notice of Borrowing is delivered to you pursuant to Section 3.1 of Schedule “P” to the Credit Agreement originally dated as of November 28, 2000, as amended and restated as of July 20, 2011, and as same may be further amended, restated, supplemented or otherwise modified from time to time (the “ Credit Agreement ”). Unless otherwise indicated herein, all defined terms set forth in this Tranche A Notice of Borrowing shall have the respective meanings set forth in Exhibit “P-5” to Schedule “P” to the Credit Agreement.

2) We hereby request a Cdn.$                      (representing the CAD Equivalent of US$                      ) Tranche A Advance under the Finnvera Facility A of the Credit Agreement as follows:

 

  (a) Date of Tranche A Advance:                             

 

  (b) Amount of Tranche A Advance:                             

 

  (c) Tranche A Designated Period:                                 

 

  (d) Payment instruction (if any):                             

3) We have understood the provisions of Schedule “P” to the Credit Agreement which are relevant to the furnishing of this Tranche A Notice of Borrowing. To the extent that this Tranche A Notice of Borrowing evidences, attests or confirms compliance with any covenants or conditions precedent provided for in the Credit Agreement (including, without limitation, those set forth in Schedule “P” to the Credit Agreement), we have made such examination or investigation as was, in our opinion, necessary to enable us to express an informed opinion as to whether such covenants or conditions have been complied with.

4) WE HEREBY CERTIFY THAT, as of the date hereof:

(a) All of the representations and warranties of the Borrower contained in Article 11 of the Credit Agreement (except where qualified in such Article 11 as being made as at a particular date), are true and correct on and as of the date hereof as though made on and as of the date hereof.

(b) All of the covenants of the Borrower contained in Articles 12 and 13 of the Credit Agreement, as supplemented by Article 8 of Schedule “P” to the Credit Agreement, together with all of the conditions precedent to a Tranche A Advance and all other terms and conditions contained in the Credit Agreement have been fully complied with.

(c) No Event of Default (as defined in the Credit Agreement) has occurred and no Default (as defined in the Credit Agreement) has occurred and is continuing.


Yours truly,
VIDÉOTRON LTÉE
Per:  

 

 

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EXHIBIT “P-1B” – NOTICE OF NEW TRANCHE A DESIGNATED PERIOD AND CERTIFICATE

 

TO:    HSBC BANK PLC , as Finnvera Facility Agent   
FROM:    VIDÉOTRON LTÉE    DATE:

1) This Notice of New Tranche A Designated Period and Certificate is delivered to you pursuant to Section 3.3 of Schedule “P” to the Credit Agreement originally dated as of November 28, 2000, as amended and restated as of July 20, 2011, and as same may be further amended, restated, supplemented or otherwise modified from time to time (the “ Credit Agreement ”). Unless otherwise indicated herein, all defined terms set forth in this Notice of New Tranche A Designated Period and Certificate shall have the respective meanings set forth in Exhibit “P-5” to Schedule “P” to the Credit Agreement.

2) We hereby request that you continue the Tranche A Advances made under the Finnvera Facility A of the Credit Agreement as follows:

 

(a)    Tranche A Rollover Date:  

 

(b)    Amount of Tranche A Advances to be rolled over (minimum Cdn.$1,000,000 or such smaller amount corresponding to the Tranche A CDOR Advance Amount, as applicable, of the Tranche A Advances to be continued hereunder) :  

 

(c)    New Tranche A Designated Period:  

 

(d)    Payment instruction (if any)  

 

3) We have understood the provisions of Schedule “P” to the Credit Agreement which are relevant to the furnishing of this Notice of New Tranche A Designated Period and Certificate. To the extent that this Notice of New Tranche A Designated Period and Certificate evidences, attests or confirms compliance with any covenants provided for in the Credit Agreement (including, without limitation, those set forth in Schedule “P” to the Credit Agreement), we have made such examination or investigation as was, in our opinion, necessary to enable us to express an informed opinion as to whether such covenants have been complied with. For greater certainty, none of the conditions precedent provided for in the Credit Agreement (other than that set forth in subsection 6.2.1 of Schedule “P” to the Credit Agreement) shall apply in respect of this Notice of New Tranche A Designated Period and Certificate and the continuation of the Tranche A Advances requested hereunder.


4) WE HEREBY CERTIFY THAT, as of the date hereof:

(a) All of the representations and warranties of the Borrower contained in Article 11 of the Credit Agreement (except where qualified in such Article 11 as being made as at a particular date), are true and correct on and as of the date hereof as though made on and as of the date hereof.

(b) All of the covenants of the Borrower contained in Articles 12 and 13 of the Credit Agreement, as supplemented by Article 8 of Schedule “P” to the Credit Agreement and all other terms and conditions contained in the Credit Agreement have been fully complied with.

(c) No Event of Default (as defined in the Credit Agreement) has occurred and no Default (as defined in the Credit Agreement) has occurred and is continuing.

 

Yours truly,
VIDÉOTRON LTÉE
Per:  

 

 

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EXHIBIT “P-2” - NOTICE OF REPAYMENT

 

TO:    HSBC BANK PLC , as Finnvera Facility Agent   
FROM:    VIDÉOTRON LTÉE    DATE:

 

1) This notice of repayment is delivered to you pursuant to Section 5.2 of Schedule “P” to the Credit Agreement originally dated as of November 28, 2000, as amended and restated as of July 20, 2011, and as same may be further amended, restated, supplemented or otherwise modified from time to time (the “Credit Agreement”). All defined terms set forth in this notice shall have the respective meanings set forth in Schedule “P” to the Credit Agreement.

 

2) We hereby advise you that we will be repaying the sum of Cdn.$                      on                      as follows [ indicate amount payable in respect of the Finnvera Facility A as well as the type of Tranche A Advance to be repaid ].

 

3) As to an amount of Cdn. $                      , the above-mentioned payment should be treated as a [ voluntary repayment/prepayment ] under Section 5.2 of Schedule “P” to the Credit Agreement, which we understand will have the effect of reducing the amount of the Finnvera Facility A by an equal amount (or by an equivalent amount, if in US$).

 

Yours truly,
VIDÉOTRON LTÉE
Per:  

 

Name:  
Title:  


EXHIBIT “P-3” – OFFICER’S CERTIFICATE

I, the undersigned,                      , the                      , of Vidéotron Ltée (the “ Borrower ”), do hereby certify as follows:

 

  (a) I have taken cognizance of all the terms and conditions of the Credit Agreement originally dated as of November 28, 2000, as amended and restated as of July 20, 2011, as well as of all contracts, agreements and deeds pertaining thereto; and

 

  (b) no Default or Event of Default has occurred nor exists thereunder; and

 

  (c) the corporate structure of the VL Group is as set out in the diagram attached to this certificate; and

 

  (d) all of the movable property owned by the VL Group as of the date hereof is located in the province of Québec and in Ontario and, with respect to Videotron US Inc. only, in the United States;

 

  (e) each member of the VL Group holds the permits, Licences, licences and authorizations required in order to permit it to possess its property and its real estate and to carry on its business in the manner in which it is being carried on at present; and

 

  (f) the performance by the Borrower of its obligations under the NSN Contract in accordance with its terms and the completion of the transactions contemplated therein do not require any consents or approvals, do not violate any Applicable Laws, and do not conflict with, violate or constitute a breach under the documents of incorporation or by-laws of the Borrower.

All expressions referred to herein have the meanings ascribed to them in the Credit Agreement.

Executed at the City of Montreal, Province of Quebec this      day of              , 2011.

 

 

 

Encl.


EXHIBIT “P-4” – FINNVERA TRANSFER AGREEMENT

 

TO: HSBC BANK PLC (the “ Finnvera Facility Agent ”); and

VIDÉOTRON LTÉE (the “ Borrower ”)

WHEREAS the Borrower entered into a Credit Agreement originally dated as of November 28, 2000, as amended and restated as of July 20, 2011, and as same may have been further amended, restated, supplemented or otherwise modified from time to time (the “ Credit Agreement ”), with the Finnvera Facility Agent, as Finnvera Facility agent and Tranche A Lender, and with other Tranche A Lenders, whereby the Tranche A Lenders agreed to provide the Borrower with certain credit facilities; and

WHEREAS pursuant to and in accordance with Article 10 of Schedule “P” to the Credit Agreement, a Tranche A Lender may, [ with the prior consent of and/or notice to the Borrower/the Finnvera Facility Agent/Finnvera ( include as applicable in the circumstances) ] assign or transfer all or any of its rights, benefits and obligations under the Credit Agreement by duly completing, executing and delivering to the Finnvera Facility Agent and to the Borrower this Finnvera Transfer Agreement; and

WHEREAS                      (the “ Transferor ”) wishes to assign or transfer to                      (the “ Assignee ”) the rights, benefits and obligations of the Transferor under the Credit Agreement specified herein;

WHEREAS [the Borrower/the Finnvera Facility Agent/Finnvera (include as applicable in the circumstances) ] have [consented/been notified (include as applicable in the circumstances) ] in writing to such assignment or transfer pursuant to the provisions of Article 10 of Schedule “P” to the Credit Agreement [and have reiterated their consent hereby (include as applicable in the circumstances) ] ;

NOW THEREFORE in consideration of the foregoing and of one dollar ($l.00) and other good and valuable consideration, the receipt of which is hereby acknowledged, the signatories hereto agree as follows:

1. Unless otherwise indicated herein, all capitalized terms defined in Exhibit “P-5” of Schedule “P” to the Credit Agreement and not otherwise defined herein have the same meaning as in Exhibit “P-5” of Schedule “P” to the Credit Agreement.

2. The Transferor assigns and transfers to the Assignee the following rights, benefits and obligations, without warranty (the “ Transfer ”):

(description of the transferred rights, benefits and obligations, indicating retained interest or fees, if applicable, extent of the Assignee’s interest and any applicable arrangements if any Tranche A CDOR Advances are outstanding at the time of the Assignment)


(the “ Transferred Rights ” and the “ Transferred Obligations ”, as applicable). The Transfer shall be effective as of              ,          .

3. If the Tranche A Advances made by the Assignee are less than the proportionate share of all Tranche A Advances based on the Tranche A Commitment of the Assignee in the Tranche A Credit, the Assignee shall, on demand, indemnify the Transferor in respect of the principal amount of the corresponding Tranche A Advances made by the Transferor in excess of the Transferor’s Tranche A Commitment. The Tranche A Advances in respect of which the Assignee is bound to indemnify the Transferor are set out in Schedule “B” hereto. On the effective date of the Transfer, the Transferor shall pay to the Assignee the indemnity fees in respect of [Tranche A CDOR Advances] in the amounts specified in Schedule “B” during the period in which the Assignee is to indemnify the Transferor.

4. The Assignee accepts the Transfer and assumes the Transferred Obligations without novation and without warranty (the “ Assumption ”). The Assignee acknowledges and accepts that the Assignee and the Agent (as defined in the Credit Agreement) are solidary creditors of the Borrower and the Guarantors (as defined in the Credit Agreement) in respect of all amounts, liabilities and other obligations, present and future, of the Borrower and the Guarantors (as defined in the Credit Agreement) to each of them under the Credit Agreement as contemplated by Section 18.1.2 of the Credit Agreement and in accordance with Article 1541 of the Civil Code of Quebec .

 

5. The Transfer and the Assumption are governed by and subject to Article 10 of Schedule “P” to the Credit Agreement.

6. The Transferor and the Assignee acknowledge that arrangements have been made between them as to the portion, if any, of Tranche A Fees and interest received or to be received by the Transferor pursuant to Schedule “P” to the Credit Agreement and to be paid by the Transferor to the Assignee.

7. The Assignee acknowledges and confirms that it has not relied upon and that neither the Transferor nor the Finnvera Facility Agent has made any representation or warranty whatsoever as to the due execution, legality, effectiveness, validity or enforceability of the Credit Agreement or any other documentation or information delivered by the Transferor or the Finnvera Facility Agent to the Assignee in connection therewith or for the performance thereof by any party thereto or for the performance of any obligation by any Subsidiary (as defined in the Credit Agreement) or for the financial condition of the Borrower or of any Subsidiary. All representations, warranties and conditions expressed or implied by law or otherwise are hereby excluded.

8. The Assignee represents and warrants that it has itself been, and will continue to be, solely responsible for making its own independent appraisal of and investigation into the financial condition, creditworthiness, affairs, status and nature of the Borrower and has not relied and will not hereafter rely on the Transferor and/or the Finnvera Facility Agent to appraise or keep under review on its behalf the financial condition, creditworthiness, affairs, status or nature of the Borrower. The Assignee acknowledges and agrees that it has no right to obtain any non- public information directly from the Borrower and that it will request any information it requires solely from the Finnvera Facility Agent.

 

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9. Each of the Transferor and the Assignee represents and warrants to the other and to the Finnvera Facility Agent, the other Tranche A Lenders and the Borrower, that it has the right, capacity and power to enter into the Transfer and the Assumption in accordance with the terms hereof and to perform its obligations arising therefrom, and all action required to authorize the execution and delivery hereof and the performance of such obligations has been duly taken.

10. This Finnvera Transfer Agreement shall be governed by and construed in accordance with the laws of the Province of Quebec, Canada.

11. The parties confirm having requested that this document be drafted in the English language. Les parties confirment avoir requis que ce document soit rédigé en langue anglaise.

Following the Transfer and Assumption, Exhibit “P-1” to Schedule “P” to the Credit Agreement will be replaced by Schedule “A” annexed hereto.

AND THE PARTIES HAVE SIGNED AS OF                      , 20      .

 

                                                                                               ,                                                                                                    ,
as Transferor     as Assignee
Per:  

 

    Per:  

 

Per:  

 

    Per:  

 

[CONSENTED TO AND ACKNOWLEDGED:] ( include and adjust signatories as applicable in the circumstances)

 

FINNVERA PLC     VIDÉOTRON LTÉE
Per:  

 

    Per:  

 

Per:  

 

    Per:  

 

 

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EXHIBIT “P-5” – INTERPRETATION AND DEFINITIONS

Definitions

Capitalized terms used and not otherwise defined in this Schedule “P” have the meanings ascribed thereto in the Credit Agreement. The following words and expressions, when used in Schedule “P” or in any agreement supplementary to the Credit Agreement, unless the contrary is stipulated, have the following meaning:

Amending Agreement ” means the Tenth Amending Agreement to the Credit Agreement dated as of November 13, 2009 between, inter alia , the Borrower, the Agent, the Finnvera Facility Agent, and certain lenders;

Availability Period ” means, with respect to the Finnvera Term Facility, the period from the Signing Date (subject to satisfying the conditions precedent set forth in Article 6 of Schedule “P”) until the earlier of (i) the date falling 24 months after the Signing Date and (ii) the full utilization, cancellation or termination of the Finnvera Term Facility;

Business Day ” means any day, except Saturdays, Sundays and other days which in Montreal or Toronto (Canada) or London (England) or, to the extent Finnvera becomes a Tranche A Assignee under Schedule “P” or is subrogated into the rights of any Tranche A Lender, Helsinki (Finland), are holidays or days on which banking institutions are not authorized to be open or required by law or by local proclamation to close;

CAD Equivalent ” means the equivalent in Canadian Dollars of any value or sum denominated in US Dollars using the rate of exchange quoted by the Bank of Canada as the noon mid-market spot rate for such conversion on the day preceding the Business Day on which such determination is made;

CDOR Rate ” means, with respect to any Tranche A Designated Period of 30 to 183 days relating to a Tranche A CDOR Advance, the annual rate of discount or interest which is the arithmetic average of the discount rates (rounded upwards to the nearest multiple of 0.01%) for bankers’ acceptances denominated in Canadian Dollars for such term and face amount identified as such on the Reuters Screen CDOR Page at approximately 10:00 A.M. (Montreal time) on the date on which such Tranche A CDOR Advance is to be made or on the Tranche A Rollover Date, as the case may be, or if such day is not a Business Day, then on the immediately preceding Business Day (as adjusted by the Finnvera Facility Agent after 10:00 A.M. (Montreal time) to reflect any error in any posted rate or in the posted average annual rate). If the rate does not appear on the Reuters Screen CDOR Page as contemplated above, then the CDOR Rate on any day shall be calculated by the Finnvera Facility Agent at the arithmetic average of the discount rates (rounded upwards to the nearest multiple of 0.01%) for bankers’ acceptances denominated in Canadian Dollars for such term comparable to the Tranche A Designated Period and such face amount comparable to the Tranche A CDOR Advance Amount of, and as quoted by, the Schedule “I” Reference Banks, as of 10:00 A.M. (Montreal time) on that day, or if that day is not a Business Day, then on the immediately preceding Business Day. Each calculation by the Finnvera Facility Agent of the CDOR Rate shall be binding and conclusive for all purposes, absent manifest error;


Commitment Fee Letter ” means the letter agreement dated November 13, 2009 entered into between the Borrower and the Finnvera Facility Agent, as same may be amended, restated, supplemented, amended and restated or otherwise modified from time to time;

Cost of Funds ” means a Tranche A Lender’s cost of funds as determined by it and expressed as an annual rate to borrow Canadian dollars for a Tranche A Designated Period including, inter alia , as the case may be, the cost of keeping base, excess or emergency reserves (as may be required from time to time by Law and competent authorities), the cost of Canada deposit insurance and any tax or assessment that must be deducted or withheld by such Tranche A Lender, as applicable, and as described by such Tranche A Lender to the Borrower by way of a statement which sets forth the calculations used in determining such cost of funds;

Cost of Funds Basis ” means the basis of calculation of interest on the Tranche A Advances, or any part thereof, made or deemed to have been made in accordance with the provisions of Sections 3.9 and 3.11 of Schedule “P”, respectively;

Credit Agreement ” means the credit agreement dated as of November 28, 2000 entered into among, inter alia , the Borrower, the financial institutions party thereto from time to time and Royal Bank of Canada, as administrative agent (as amended and restated as of July 20, 2011, and as same may be further amended, restated, supplemented, amended and restated or otherwise modified from time to time);

Default Rate ” means, for any day, the CDOR Rate which would apply to bankers’ acceptances with a period of one month, plus 4%;

Domestic Tranche A Lender ” means a Tranche A Lender who is a resident of Canada (within the meaning of the Income Tax Act (Canada)) and any other Tranche A Lender who has the ability to fund via the CDOR Rate;

ECA Guarantee ” means the Buyer Credit Guarantee Agreement Bc 112-08 dated November 13, 2009 (and the General Conditions for Buyer Credit Guarantees dated March 1, 2004 annexed thereto) granted by ECA to and in favour of, among others, the Tranche A Lenders, in connection with, inter alia , the Finnvera Term Facility, as same may be amended, restated, supplemented, amended and restated or otherwise modified from time to time;

ECA Premium A ” means the premiums payable by the Borrower to or for the account of ECA in respect of the ECA Guarantee;

Eighth Repayment Date ” means the date that falls 42 months after the First Repayment Date;

Euros or ” means the lawful currency of the member states of the European Union;

Fee Letter ” means the letter agreement dated as of March 5, 2009 entered into between the Borrower, HSBC Bank plc and TD Securities, as amended on November 13, 2009 and as same may be amended, restated, supplemented, amended and restated or otherwise modified from time to time;

Finnvera ” or “ ECA ” means Finnvera plc;

 

- 2 -


Finnvera Facility Agency Branch ” means the branch of the Finnvera Facility Agent located at 8 Canada Square, Canary Wharf, London, UK, E14 5HQ, or such other address which the Finnvera Facility Agent may notify the Borrower from time to time;

Finnvera Facility Agent ” means HSBC Bank plc, in its capacity as facility agent for all of the Tranche A Lenders;

Finnvera Facility B Agent ” means HSBC Bank plc, in its capacity as facility agent for all of the Tranche B Lenders;

Finnvera Facility B Security Agent ” means The Toronto-Dominion Bank, in its capacity as security agent for all the Tranche B Lenders ;

Finnvera Term Facility ” means the facility under which the Tranche A Credit is made available pursuant to Section 1 of Schedule “P”;

Finnvera Transfer Agreement ” means a transfer agreement substantially in the form annexed to this Schedule “P” as Exhibit “P-4”;

First Repayment Date ” means June 15, 2010;

Foreign Tranche A Lender ” means a Tranche A Lender who is a non-resident of Canada (within the meaning of the Income Tax Act (Canada)) and who is authorized by law to lend money in Canada;

LIBOR Reference Banks ” means HSBC Bank plc, Barclays Bank plc and UBS AG and any other leading banks in the London inter-bank market as may be agreed to from time to time by the Finnvera Facility Agent and the Borrower;

Majority Tranche A Lenders ” means Tranche A Lenders having at least 51% of the Tranche A Commitments;

Maturity Date ” means June 15, 2018;

Notice of New Tranche A Designated Period ” means a notice substantially in the form of Exhibit “P-1B” to Schedule “P” delivered to the Finnvera Facility Agent by the Borrower in accordance with the provisions of Section 3.3 of Schedule “P”;

Notice of Repayment ” means a notice substantially in the form of Exhibit “P-2” to Schedule “P” delivered to the Finnvera Facility Agent by the Borrower in accordance with the provisions of Section 5.2 of Schedule “P”;

NSN ” means Nokia Siemens Networks Oy and any affiliates thereof;

NSN Contract ” means, collectively, the Master Purchase Agreement and the Care Agreement, each dated October 21, 2008 between the Borrower, as purchaser, and NSN, as supplier, as amended, restated, supplemented or otherwise modified from time to time;

 

- 3 -


Purchase Price ” means the purchase price for telecommunications equipment, software and related goods and services not being equipment, software, goods and services of Canadian origin purchased or to be purchased by the Borrower from NSN pursuant to and as more fully set out in the NSN Contract;

Regulatory Approval ” means the receipt of all material consents and approvals of all governmental bodies having jurisdiction which are required to be obtained in connection with the consummation of the NSN Contract including, without limitation, the approval of the CRTC;

Repayment Date ” means the First Repayment Date and each date that falls at the end of each 6-month period thereafter up to and including the Maturity Date;

Required Documents ” means the documents listed in and annexed to each Tranche A Notice of Borrowing;

Schedule I Reference Banks ” means The Toronto-Dominion Bank and any other bank or banks named in Schedule I to the Bank Act (Canada) as may be agreed from time to time by the Finnvera Facility Agent and the Borrower;

Security Agent ” means The Toronto-Dominion Bank, in its capacity as security agent for all the Tranche A Lenders ;

Signing Date ” means the date of execution of the Amending Agreement;

Term Loan ” means, at any time, the aggregate of the Tranche A Advances outstanding in accordance with the provisions of Schedule “P”, together with all unpaid interest thereon and any other amount in principal, interest and accessory fees, costs and expenses payable to the Finnvera Facility Agent or the Tranche A Lenders by the Borrower pursuant to the Credit Agreement including, without limitation, the Tranche A Fees, the Commitment Fee and the Finnvera Handling Fee;

Tranche A Advance ” means any advance by a Tranche A Lender under Schedule “P”, including a Tranche A CDOR Advance;

Tranche A Advance Amount ” means a Tranche A CDOR Advance Amount;

Tranche A Assignee ” has the meaning ascribed to it in subsection 16.2.1 of Schedule “P” and shall be deemed to include Finnvera if an assignment and transfer is made to it in accordance with the provisions of Article 10 of Schedule “P”;

Tranche A Assignment ” means an assignment of all or a portion of a Tranche A Lender’s rights and obligations under Schedule “P” in accordance with Sections 10.2 and 10.3 of Schedule “P”;

Tranche A Borrowing Certificate ” means a certificate substantially in the form of Exhibit “P-7” to Schedule “P” delivered to the Finnvera Facility Agent by the Borrower in accordance with the provisions of Section 6.5 of Schedule “P”;

 

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Tranche A CDOR Advance Amount ” means the amount of any given Tranche A CDOR Advance or any continuation (in whole or in part) thereof;

Tranche A CDOR Advances ” means, at any time, any Cdn.$ Tranche A Advances made by a Domestic Tranche A Lender bearing interest at the CDOR Rate;

Tranche A Commitment ” means the portion of the Tranche A Credit for which a Tranche A Lender is responsible, as set out in Exhibit “P-1” to Schedule “P”;

Tranche A Credit ” means the aggregate amount available to the Borrower under the Finnvera Term Facility;

Tranche A Designated Period ” means, with respect to a Tranche A Advance, a period designated by the Borrower in accordance with Section 3.4 of Schedule “P”;

Tranche A Fees ” means the fees, premiums and other charges payable to the Finnvera Facility Agent, the Security Agent, Finnvera and the Tranche A Lenders in accordance with the provisions of the Fee Letter;

Tranche A Lender ” or “ Tranche A Lenders ” means the lenders listed in Exhibit “P-1” to Schedule “P”, together with any Tranche A Assignee(s), or, as the context permits, any of them alone, which, in each case, has not ceased to be a lender in accordance with the provisions of Schedule “P”;

Tranche A Notice of Borrowing ” means a notice substantially in the form of Exhibit “P-1A” to Schedule “P” delivered to the Finnvera Facility Agent by the Borrower in accordance with the provisions of Section 3.1 of Schedule “P”;

Tranche A Rollover Date ” means, with respect to a Tranche A Advance, the date of any such Tranche A Advance, or the first day of any Tranche A Designated Period;

Tranche B Lenders ” means the lenders from time to time party to the Tranche B Loan Agreement, including their successors and permitted assigns;

Tranche B Loan ” means the term loan granted to the Borrower by HSBC Bank plc, The Toronto-Dominion Bank and each other Tranche B Lender pursuant to the Tranche B Loan Agreement;

Tranche B Loan Agreement ” means the credit agreement dated November 13, 2009 pursuant to which the Tranche B Loan is made available to the Borrower, as same may be amended, restated, supplemented, amended and restated or otherwise modified from time to time.

 

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EXHIBIT “P-6” – COMMITMENT FEE LETTER

 

 

LOGO

 

HSBC Bank plc

Level 18

8 Canada Square

London

E14 5HQ

November 13, 2009

Vidéotron Ltée

612 Saint-Jacques Street, 13 Floor

Montreal,Quebec

H3C 4M8

Attention: Mr. Jean-François Pruneau, Vice President, Finance

Dear Mr. Pruneau:

This letter is delivered to you in connection with (i) Schedule “P” to that certain Credit Agreement dated as of November 28, 2000, as amended by a First Amending Agreement dated as of January 5, 2001, a Second Amending Agreement dated as of June 29, 2001, a Third Amending Agreement dated December 12, 2001 and accepted by the lenders party thereto as of December 21, 2001, a Fourth Amending Agreement dated as of December 23, 2002, a Fifth Amending Agreement dated as of March 24, 2003, a Sixth Amending Agreement dated as of October 8, 2003, a Seventh Amending Agreement dated as of November 19, 2004, an Eighth Amending Agreement dated as of March 6, 2008, a Ninth Amending Agreement dated as of April 7, 2008, and a Tenth Amending Agreement dated as of November 13, 2009 entered into between Vidéotron Ltée (“ Vidéotron ”), as borrower, the financial institutions party thereto from time to time, as lenders, Royal Bank of Canada, as administrative agent, and HSBC Bank plc, as agent (the “ Finnvera Term Facility Agent ”) to certain lenders from time to time (the “ Tranche A Lenders ”) providing credit facilities guaranteed by Finnvera plc (the “ Finnvera Term Facility ”) in an aggregate principal amount of Cdn.75,000,000 (as so amended and as same may be further amended, restated, supplemented, amended and restated or otherwise modified from time to time, the “ Credit Agreement ”); and (ii) the Finnvera Facility B Credit Agreement dated as of November 13, 2009 between Vidéotron, as borrower, the financial institutions party thereto from time to time, as lenders (the “ Tranche B Lenders ”), HSBC Bank plc, as agent (the


Finnvera Facility B Agent ”), and The Toronto-Dominion Bank, as security agent, pursuant to which credit facilities guaranteed by Finnvera plc (the “ Finnvera Facility B ”) are made available to Vidéotron in an aggregate principal amount of the CAD Equivalent (as defined therein) of the difference between US$100,000,000 and the aggregate of the USD Equivalent (as defined therein) of each drawing made under the Finnvera Term Facility (as amended, restated, supplemented, amended and restated or otherwise modified from time to time, the “ Finnvera Facility B Credit Agreement ”).

The fees set forth below shall be non-refundable and deemed to be fully earned on the date on which they are respectively due and shall be in addition to, and not creditable against, any other fees, premiums, costs, expenses and other charges payable pursuant to or in connection with the Credit Agreement, the Finnvera Facility B Credit Agreement or otherwise. Your obligation to pay such fees will not be subject to counterclaim or setoff for, or be otherwise affected by, any claim or dispute you may have, and all such fees shall be paid free and clear of deductions, taxes or withholdings of any kind.

In connection with and in consideration for the agreements contained in the Credit Agreement and the Finnvera Facility B Credit Agreement, you agree with the Finnvera Term Facility Agent and the Finnvera Facility B Agent, respectively, as follows:

C OMMITMENT F EE . You will pay to HSBC Bank plc, as Finnvera Term Facility Agent and Finnvera Facility B Agent, for the account of the Tranche A Lenders and the Tranche B Lenders, respectively, a commitment fee (the “ Commitment Fee ”) in US Dollars of 0.375% per annum calculated from and as of November 13, 2009 on the day to day undrawn portion of USD 100,000,000, representing the aggregate principal amount available under the Finnvera Term Facility and the Finnvera Facility B, collectively. The Commitment Fee shall be payable semi-annually in arrears on December 10 th and June 10 th of each year up to and including the last day of the Availability Period (as defined in the Finnvera Facility B Credit Agreement).

No party to this commitment fee letter is authorized to show or circulate this letter or disclose the contents of this letter to any person or entity (other than its legal and financial advisors in connection with its evaluation of this letter), except (i) as required by law, (ii) to any other party to the Credit Agreement, and (iii) by the Finnvera Term Facility Agent and the Finnvera Facility B Agent to potential Tranche A Lenders and Tranche B Lenders, respectively.

This letter shall enure to the benefit of the Finnvera Term Facility Agent and the Finnvera Facility B Agent and their successors and assigns and shall be binding on you and your successors and assigns.

This letter will be governed by and interpreted in accordance with the laws of the Province of Québec and the laws of Canada applicable in such Province.

This letter may be executed in any number of counterparts, each of which shall be an original and all of which, when taken together, shall constitute one agreement. Delivery of an executed counterpart of a signature page of this letter (whether by delivery of an original of the same or by facsimile transmission) shall be as effective as delivery of a manually executed counterpart of this letter.

The parties hereto have expressly required that this letter be drafted in the English language. Les parties aux présentes ont expressément exigé que les présentes soient rédigées en langue anglaise.

 

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THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK

 

- 3 -


Yours truly,
HSBC BANK PLC
By:  

 

Name:  
Title:  

ACCEPTED AND AGREED TO

AS OF THE DATE FIRST WRITTEN ABOVE:

 

VIDÉOTRON LTÉE
By:  

 

Name:  
Title:  
By:  

 

Name:  
Title:  

 

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EXHIBIT “P-7” – TRANCHE A BORROWING CERTIFICATE

 

TO:    HSBC BANK PLC , as Finnvera Facility Agent
FROM:    VIDÉOTRON LTÉE
DATED:                                                     

1) This Tranche A Borrowing Certificate is delivered to you pursuant to Section 6.4 of Schedule “P” to the Credit Agreement originally dated as of November 28, 2000, as amended and restated as of July 20, 2011, and as same may be further amended, restated, supplemented or otherwise modified from time to time (the “ Credit Agreement ”). Unless otherwise indicated herein, all defined terms set forth in this Tranche A Borrowing Certificate shall have the respective meanings set forth in Exhibit “P-5” to Schedule “P” to the Credit Agreement.

2) Attached hereto are true and complete copies of: [invoices, evidence of payment, receipts] .

3) We have already paid the amount of US$                      (the “ Purchase Price Portion ”) to NSN in accordance with the NSN Contract for the goods and services of non-Canadian origin covered by the aforementioned documents. Amounts invoiced and paid relate to the value of such goods manufactured and supplied to date and of such services rendered to date.

4) We have already paid the amount of US$                      to NSN in accordance with the NSN Contract for the local services covered by the aforementioned documents. Amounts invoiced and paid relate to the value of such local services rendered to date.

5) WE FURTHER WARRANT THAT:

(a) The amount claimed in paragraph 2)(b) of the Tranche A Notice of Borrowing (the “ Requested Tranche A Advance Amount ”) of even date herewith executed and delivered by the Borrower to the Finnvera Facility Agent is [less than or] equal to the CAD Equivalent of (x)  85% of the Purchase Price Portion and (y)  costs for local services up to a maximum amount which, when combined with all amounts previously disbursed by the Tranche A Lenders in reimbursement of costs for local services, does not exceed 30% of the portion of the Purchase Price paid to date, [( in initial Tranche A Notice of Borrowing only, as applicable) plus Cdn.$                      which represents all or part of the upfront portion of the ECA Premium A].

(b) The Requested Tranche A Advance Amount does not include any amounts which have already been claimed under any other Tranche A Notice of Borrowing.

(c) The Requested Tranche A Advance Amount, when added to the principal amounts of all other Tranche A Advances made prior to the date hereof, does not exceed (i) the sum of ( x ) the CAD Equivalent of 85% of the portion of the Purchase Price paid to date, ( y ) the CAD Equivalent of costs for local services up to a maximum of 30% of such portion of the Purchase Price paid to date, and (z)  100% of the upfront portion of the ECA Premium A or (ii) Cdn.$75,000,000.


(d) The NSN Contract has not been terminated and has been in full force and effect as of the date of the invoice(s) to be financed under the Tranche A Notice of Borrowing of even date herewith.

6) We enclose a true and complete copy of a certificate of NSN relating to the invoices to be financed under the Tranche A Notice of Borrowing of even date herewith.

7) We undertake to supply you with such additional information and documentation and clarification as reasonably necessary in connection with the ECA Guarantee and agree not to hold you responsible for any delay in meeting the request for reimbursement under the Tranche A Notice of Borrowing of even date herewith occasioned by such request for information.

 

Yours truly,
VIDÉOTRON LTÉE
Per:  

 

 

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FORM OF SUPPLIER’S CERTIFICATE

 

FROM:    NOKIA SIEMENS NETWORKS CANADA INC. , as the supplier under the NSN Contract
TO:    VIDÉOTRON LTÉE , as the purchaser under the NSN Contract
AND TO:    HSBC BANK PLC , as Finnvera Facility Agent
DATED:                                             

 

Re: Term loan facility in the maximum principal amount of Cdn.$75,000,000 (the “Finnvera Facility A”) made available to Vidéotron Ltée (the “Borrower”) by HSBC Bank plc, The Toronto-Dominion Bank, Credit Suisse AG, Sumitomo Mitsui Banking Corporation of Canada and any other lenders from time to time (the “Tranche A Lenders”), guaranteed by Finnvera plc (the “ECA Guarantee”), and administered by HSBC Bank plc, as agent to the Tranche A Lenders (the “Finnvera Facility Agent”), the whole in connection with the Master Purchase Agreement and the Care Agreement dated October 21, 2008 between the Borrower, as purchaser, and Nokia Siemens Networks Canada Inc., as supplier (collectively, and as amended, restated, supplemented or otherwise modified from time to time, the “NSN Contract”)

Dear Sirs:

 

1. We refer to the “Tranche A Borrowing Certificate” dated                      (the “ Reimbursement Request Certificate ”), which has been made available to us. We understand that the Borrower has requested a drawing under the Finnvera Facility A in order to reimburse a payment made in respect of the NSN Contract and we give this certificate in connection with such requested drawing.

 

2. We confirm that:

 

  (i) the NSN Contract has been in full force and effect and has not been terminated as of the date of the invoices to which the Reimbursement Request Certificate relates;

 

  (ii) the statements in paragraphs 3 and 4 of the Reimbursement Request Certificate are true and accurate in all respects;

 

  (iii) the amount claimed by the Borrower for reimbursement in connection with the Reimbursement Request Certificate to which this certificate relates does not include any amount for which we have received a disbursement under the Finnvera Facility A or for which the Borrower has previously received a reimbursement under any document of which we have notice; and


  (iv) we have received from the Borrower 100% of the amount of the relevant invoice(s) to which the Reimbursement Request Certificate relates.

 

By:

 

Authorized Signatory

 

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Exhibit 7.1

Videotron Ltd.

Statement Regarding Calculation of Ratio of Earnings to Fixed Charges as Disclosed in

Videotron Ltd.’s Annual Report on Form 20-F for the Year Ended December   31, 2015

For the purpose of calculating the ratio of earnings to fixed charges disclosed in Videotron Ltd.’s Annual Report on Form 20-F for the year ended December 31, 2015, (i) earnings consist of net income plus income taxes, fixed charges, amortized capitalized interest, less interest capitalized, and (ii) fixed charges consist of interest expensed and capitalized, excluding interest on QMI subordinated loans, plus premiums and discounts amortization, financing fees amortization and an estimate of the interest within rental expense.

Exhibit 8.1

List of Subsidiaries of Videotron Ltd.

 

Name of Subsidiary

  

Jurisdiction of Incorporation or

Organization

      
9227-2590 Québec inc.    Québec   
9230-7677 Québec inc.    Québec   
Videotron G.P.    Québec   
Videotron Infrastructures Inc.    Canada   
Videotron L.P.    Québec   
Videotron US Inc.    Delaware   
SETTE inc.    Québec   
4Degrees Colocation Inc.    Canada   
Fibrenoire Inc.    Canada   

Exhibit 12.1

Certification of the Principal Executive Officer of

Videotron Ltd.

pursuant to Section 302 of the Sarbanes-Oxley Act of 2002

I, Manon Brouillette, President and Chief Executive Officer of Videotron Ltd. (the “Company”), certify that:

 

1. I have reviewed this annual report on Form 20-F of the Company;

 

2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

 

3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the Company as of, and for, the periods presented in this report;

 

4. The Company’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the Company and have:

 

  a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the Company, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

 

  b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

 

  c) Evaluated the effectiveness of the Company’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

 

  d) Disclosed in this report any change in the Company’s internal control over financial reporting that occurred during the period covered by the annual report that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting; and

 

5. The Company’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the Company’s auditors and the audit committee of the Company’s board of directors (or persons performing the equivalent functions):

 

  a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information; and

 

  b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting.

Date: March 18, 2016

 

/s/ Manon Brouillette
Name:   Manon Brouillette
Title:   President and Chief Executive Officer

Exhibit 12.2

Certification of the Principal Financial Officer of

Videotron Ltd.

pursuant to Section 302 of the Sarbanes-Oxley Act of 2002

I, Hugues Simard, Senior Vice President and Chief Financial Officer of Videotron Ltd. (the “Company”), certify that:

 

1. I have reviewed this annual report on Form 20-F of the Company;

 

2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

 

3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the Company as of, and for, the periods presented in this report;

 

4. The Company’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the Company and have:

 

  a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the Company, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

 

  b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

 

  c) Evaluated the effectiveness of the Company’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

 

  d) Disclosed in this report any change in the Company’s internal control over financial reporting that occurred during the period covered by the annual report that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting; and

 

5. The Company’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the Company’s auditors and the audit committee of the Company’s board of directors (or persons performing the equivalent functions):

 

  a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information; and

 

  b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting.

Date: March 18, 2016

 

/s/ Hugues Simard

Name:   Hugues Simard
Title:  

Senior Vice President and

Chief Financial Officer

Exhibit 13.1

Certification of the Principal Executive Officer of

Videotron Ltd.

pursuant to 18 U.S.C. Section 1350,

as adopted pursuant to

Section 906 of the Sarbanes-Oxley Act of 2002

In connection with the Annual Report of Videotron Ltd. (the “Company”) on Form 20-F for the year ending December 31, 2015, as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, Manon Brouillette, President and Chief Executive Officer of the Company, hereby certify, pursuant to 18 U.S.C. § 1350, as adopted pursuant to § 906 of the Sarbanes-Oxley Act of 2002, that, to my knowledge:

 

  (1) The Report fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended; and

 

  (2) The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.

Date: March 18, 2016

 

/s/ Manon Brouillette
Name: Manon Brouillette
Title: President and Chief Executive Officer

The foregoing certification is being furnished solely pursuant to section 906 of the Sarbanes-Oxley Act of 2002 (subsections (a) and (b) of section 1350, chapter 63 of title 18, United States Code) and is not being filed as part of the Report or as a separate disclosure document.

Exhibit 13.2

Certification of the Principal Financial Officer of

Videotron Ltd.

pursuant to 18 U.S.C. Section 1350,

as adopted pursuant to

Section 906 of the Sarbanes-Oxley Act of 2002

In connection with the Annual Report of Videotron Ltd. (the “Company”) on Form 20-F for the year ending December 31, 2015, as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, Hugues Simard, Senior Vice President and Chief Financial Officer, hereby certify, pursuant to 18 U.S.C. § 1350, as adopted pursuant to § 906 of the Sarbanes-Oxley Act of 2002, that, to my knowledge:

 

  (1) The Report fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended; and

 

  (2) The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.

Date: March 18, 2016

 

/s/ Hugues Simard

Name: Hugues Simard

Title: Senior Vice President and Chief Financial Officer

The foregoing certification is being furnished solely pursuant to section 906 of the Sarbanes-Oxley Act of 2002 (subsections (a) and (b) of section 1350, chapter 63 of title 18, United States Code) and is not being filed as part of the Report or as a separate disclosure document.