Rogers Communications Inc 6-K, filed Dec 17, 2021
Rogers Communications Inc (RCI)
About this 6-K
Rogers Communications Inc filed this 6-K on December 17, 2021.
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 6-K
Report of Foreign Private Issuer
Pursuant to Rule 13a-16 or 15d-16
under the Securities Exchange Act of 1934
For the month of December, 2021
Commission File Number 001-10805
ROGERS COMMUNICATIONS INC.
(Translation of registrant’s name into English)
333 Bloor Street East
10th Floor
Toronto, Ontario M4W 1G9
Canada
(Address of principal executive offices)
Indicate by check mark whether the registrant files or will file annual reports under cover of Form 20-F or Form 40-F:
Form 20-F ☐ Form 40-F ☒
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(1):
Yes ☐ No ☒
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(7):
Yes ☐ No ☒
Signatures
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
| ROGERS COMMUNICATIONS INC. | ||
| By: | /s/ Lisa Damiani | |
| Name: Lisa Damiani | ||
| Title: Chief Legal and Regulatory Officer and Secretary | ||
Date: December 17, 2021
Exhibit Index
| Exhibit Number |
Description of Document | |
| 99.1 | Indenture, dated as of December 17, 2021, among Rogers Communications Inc. and BNY Trust Company of Canada. | |
| 99.2 | First Supplemental Indenture, dated as of December 17, 2021, among Rogers Communications Inc. and BNY Trust Company of Canada. | |
Exhibit 99.1
ROGERS COMMUNICATIONS INC.,
as issuer of the Securities
and
BNY TRUST COMPANY OF CANADA,
as Trustee
INDENTURE
Dated as of December 17, 2021
TABLE OF CONTENTS
| PAGE | ||||
| ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION |
1 | |||
| SECTION 101. DEFINITIONS |
1 | |||
| SECTION 102. OTHER DEFINITIONS |
9 | |||
| SECTION 103. COMPLIANCE CERTIFICATES AND OPINIONS |
9 | |||
| SECTION 104. FORM OF DOCUMENTS DELIVERED TO THE TRUSTEE |
10 | |||
| SECTION 105. ACTS OF HOLDERS |
11 | |||
| SECTION 106. NOTICES, ETC., TO TRUSTEE AND COMPANY |
12 | |||
| SECTION 107. NOTICE TO HOLDERS; WAIVER |
13 | |||
| SECTION 108. CONFLICT OF ANY PROVISION OF INDENTURE WITH THE TRUST INDENTURE LEGISLATION |
14 | |||
| SECTION 109. EFFECT OF HEADINGS AND TABLE OF CONTENTS |
14 | |||
| SECTION 110. SUCCESSORS AND ASSIGNS |
14 | |||
| SECTION 111. SEPARABILITY CLAUSE |
14 | |||
| SECTION 112. BENEFITS OF INDENTURE |
14 | |||
| SECTION 113. GOVERNING LAW AND ATTORNMENT |
14 | |||
| SECTION 114. DAY NOT A BUSINESS DAY |
15 | |||
| SECTION 115. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS |
15 | |||
| SECTION 116. CONVERSION OF CURRENCY |
15 | |||
| SECTION 117. CURRENCY EQUIVALENT |
17 | |||
| SECTION 118. NO RECOURSE AGAINST OTHERS |
17 | |||
| SECTION 119. RELIANCE ON FINANCIAL DATA |
17 | |||
| SECTION 120. DOCUMENTS IN ENGLISH |
18 | |||
| SECTION 121. NO CONFLICT WITH SERIES SUPPLEMENTS |
18 | |||
| SECTION 122. LANGUAGE OF NOTICES, ETC |
18 | |||
| SECTION 123. CURRENCY OF PAYMENT |
18 | |||
| SECTION 124. COUNTERPARTS; ELECTRONIC DELIVERY |
18 | |||
| SECTION 125. WAIVER OF TRIAL BY JURY |
19 | |||
| ARTICLE TWO THE SECURITIES |
19 | |||
| SECTION 201. TITLE AND TERMS |
19 | |||
| SECTION 202. ESTABLISHMENT OF TERMS OF SERIES OF SECURITIES |
20 | |||
| SECTION 203. DENOMINATIONS |
22 | |||
| SECTION 204. EXECUTION, AUTHENTICATION, DELIVERY AND DATING |
23 | |||
| SECTION 205. TEMPORARY SECURITIES |
24 | |||
| SECTION 206. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE |
25 | |||
| SECTION 207. BOOK-ENTRY PROVISIONS FOR GLOBAL SECURITIES |
26 | |||
| SECTION 208. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES |
27 | |||
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| SECTION 209. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED |
28 | |||
| SECTION 210. PERSONS DEEMED OWNERS |
30 | |||
| SECTION 211. CANCELLATION |
31 | |||
| SECTION 212. COMPUTATION OF INTEREST |
31 | |||
| ARTICLE THREE DEFEASANCE AND DISCHARGE |
31 | |||
| SECTION 301. COMPANY’S OPTION TO EFFECT DEFEASANCE OR COVENANT DEFEASANCE |
31 | |||
| SECTION 302. DEFEASANCE |
32 | |||
| SECTION 303. COVENANT DEFEASANCE |
32 | |||
| SECTION 304. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE |
33 | |||
| SECTION 305. DISCHARGE |
34 | |||
| SECTION 306. DEPOSITED MONEY TO BE HELD IN TRUST; OTHER MISCELLANEOUS PROVISIONS |
35 | |||
| SECTION 307. NON-PRESENTATION OF SECURITIES |
36 | |||
| SECTION 308. PAYING AGENT AND TRUSTEE TO REPAY MONIES HELD |
37 | |||
| SECTION 309. REINSTATEMENT |
37 | |||
| ARTICLE FOUR REMEDIES |
37 | |||
| SECTION 401. EVENTS OF DEFAULT |
37 | |||
| SECTION 402. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT |
38 | |||
| SECTION 403. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE |
39 | |||
| SECTION 404. TRUSTEE MAY FILE PROOFS OF CLAIM |
40 | |||
| SECTION 405. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES |
40 | |||
| SECTION 406. APPLICATION OF MONEY COLLECTED |
41 | |||
| SECTION 407. LIMITATION ON SUITS |
41 | |||
| SECTION 408. RESTORATION OF RIGHTS AND REMEDIES |
42 | |||
| SECTION 409. RIGHTS AND REMEDIES CUMULATIVE |
42 | |||
| SECTION 410. DELAY OR OMISSION NOT WAIVER |
42 | |||
| SECTION 411. CONTROL BY HOLDERS |
43 | |||
| SECTION 412. WAIVER OF PAST DEFAULTS |
43 | |||
| SECTION 413. UNDERTAKING FOR COSTS |
43 | |||
| ARTICLE FIVE THE TRUSTEE |
44 | |||
| SECTION 501. CERTAIN DUTIES AND RESPONSIBILITIES |
44 | |||
| SECTION 502. NOTICE OF DEFAULTS |
45 | |||
| SECTION 503. CERTAIN RIGHTS OF TRUSTEE |
45 | |||
| SECTION 504. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES |
47 | |||
| SECTION 505. MAY HOLD SECURITIES |
48 | |||
| SECTION 506. MONEY HELD IN TRUST |
48 | |||
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| SECTION 507. COMPENSATION, REIMBURSEMENT AND INDEMNITY |
48 | |||
| SECTION 508. CONFLICTING INTERESTS |
49 | |||
| SECTION 509. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY |
49 | |||
| SECTION 510. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR |
49 | |||
| SECTION 511. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR |
51 | |||
| SECTION 512. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS |
52 | |||
| SECTION 513. TRUSTEE NOT TO BE APPOINTED RECEIVER |
53 | |||
| SECTION 514. AUTHORITY TO CARRY ON BUSINESS |
53 | |||
| SECTION 515. TRUSTEE NOT REQUIRED TO GIVE SECURITY |
53 | |||
| SECTION 516. ELECTRONIC MEANS |
53 | |||
| SECTION 517. TRUSTEE NOT BOUND TO ACT |
54 | |||
| SECTION 518. ACCEPTANCE OF TRUSTS |
54 | |||
| ARTICLE SIX HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY |
54 | |||
| SECTION 601. DISCLOSURE OF NAMES AND ADDRESSES OF HOLDERS |
54 | |||
| SECTION 602. INTENTIONALLY DELETED |
55 | |||
| SECTION 603. REPORTS BY COMPANY |
55 | |||
| ARTICLE SEVEN AMALGAMATION, CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE |
56 | |||
| SECTION 701. COMPANY MAY AMALGAMATE, ETC., ONLY ON CERTAIN TERMS |
56 | |||
| SECTION 702. SUCCESSOR SUBSTITUTED |
57 | |||
| ARTICLE EIGHT SUPPLEMENTS AND AMENDMENTS TO INDENTURE |
57 | |||
| SECTION 801. SUPPLEMENTAL INDENTURES AND AMENDMENTS WITHOUT CONSENT OF HOLDERS |
57 | |||
| SECTION 802. SUPPLEMENTAL INDENTURES AND CERTAIN AMENDMENTS WITH CONSENT OF HOLDERS |
59 | |||
| SECTION 803. EXECUTION OF SUPPLEMENTAL INDENTURES |
60 | |||
| SECTION 804. EFFECT OF SUPPLEMENTAL INDENTURES |
60 | |||
| SECTION 805. CONFORMITY WITH THE TRUST INDENTURE LEGISLATION |
60 | |||
| SECTION 806. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES |
60 | |||
| ARTICLE NINE COVENANTS |
61 | |||
| SECTION 901. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST |
61 | |||
| SECTION 902. MAINTENANCE OF OFFICE OR AGENCY |
61 | |||
| SECTION 903. MONEY FOR SECURITY PAYMENTS TO BE HELD IN TRUST |
61 | |||
| SECTION 904. CORPORATE EXISTENCE |
63 | |||
| SECTION 905. PROVISION OF FINANCIAL INFORMATION |
63 | |||
| SECTION 906. STATEMENT AS TO COMPLIANCE |
63 | |||
| SECTION 907. WAIVER OF CERTAIN COVENANTS |
64 | |||
iii
| ARTICLE TEN REDEMPTION OF SECURITIES | 64 | |
| SECTION 1001. RIGHT OF REDEMPTION | 64 | |
| SECTION 1002. APPLICABILITY OF ARTICLE | 64 | |
| SECTION 1003. ELECTION TO REDEEM; NOTICE TO TRUSTEE | 64 | |
| SECTION 1004. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED | 65 | |
| SECTION 1005. NOTICE OF REDEMPTION | 65 | |
| SECTION 1006. DEPOSIT OF REDEMPTION PRICE | 67 | |
| SECTION 1007. SECURITIES PAYABLE ON REDEMPTION DATE | 67 | |
| SECTION 1008. SECURITIES REDEEMED IN PART | 68 | |
| SECTION 1009. SECURITIES PURCHASED IN PART | 68 | |
| SECTION 1010. ACQUISITION BY OTHER MEANS | 68 | |
| ARTICLE ELEVEN MEETINGS OF HOLDERS OF SECURITIES | 68 | |
| SECTION 1101. PURPOSES FOR WHICH MEETINGS MAY BE CALLED | 68 | |
| SECTION 1102. CALL, NOTICE AND PLACE OF MEETINGS | 68 | |
| SECTION 1103. PERSONS ENTITLED TO VOTE AT MEETINGS | 69 | |
| SECTION 1104. QUORUM; ACTION | 69 | |
| SECTION 1105. DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT OF MEETINGS | 70 | |
| SECTION 1106. COUNTING VOTES AND RECORDING ACTION OF MEETINGS | 71 | |
iv
INDENTURE dated as of December 17, 2021 between Rogers Communications Inc., a corporation organized under the laws of the Province of British Columbia (hereinafter called the “Company”), and BNY Trust Company of Canada, a trust company existing and licensed under the federal laws of Canada, as trustee (hereinafter called the “Trustee”).
WHEREAS the Company wishes to issue from time to time Securities in the manner provided for in this Indenture;
NOW, THEREFORE, THIS INDENTURE WITNESSES that, for good and valuable consideration, the receipt and sufficiency of which are acknowledged by the Company and the Trustee, the Company and the Trustee agree, for the equal and proportionate benefit of all Holders of the securities issued under this Indenture (the “Securities”), as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. DEFINITIONS.
For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to them in this Article, and include the plural as well as the singular;
(b) 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;
(c) the words “include”, “includes” and “including” as used herein shall be deemed in each case to be followed by the phrase “without limitation”; and
(d) the words “amendment or refinancing” as used herein shall be deemed in each case to refer to any amendment, renewal, extension, substitution, refinancing, restructuring, restatement, replacement, supplement or other modification of any instrument or agreement; the words “amended or refinanced” shall have a correlative meaning.
Certain terms are defined in those Articles in which they are used principally.
In this Indenture and in the Securities, unless otherwise expressly provided or unless there is something in the subject matter or context inconsistent therewith, the following terms shall have the meanings ascribed thereto below:
“Act”, when used with respect to any Holder, has the meaning specified in Section 105.
“Affiliate” means, with respect to any specified Person, any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, “control” when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.
“Authorized Officer” means any individual who holds one or more of the following offices of the Company: Chair of the Board of Directors, Vice-Chair, Chief Executive Officer, President, Chief Financial Officer, any Executive Vice-President, any Senior Vice-President, any Vice-President, Treasurer, Chief Legal Officer, Secretary or General Counsel (including, for greater certainty, any individual who holds such offices of the Company on an interim basis).
“Beneficial Owner” means (a) with respect to Book-Entry Securities, the Person who is the beneficial owner of such Book-Entry Securities as reflected on the books of a Clearing Agency or a Clearing Agency Participant maintaining an account with a Clearing Agency (directly or as an indirect participant, in accordance with the rules of a Clearing Agency); or (b) with respect to Securities other than Book-Entry Securities, a Person who is (i) a beneficial owner of such Securities and as reflected on the Security Register or (ii) a Person who is the beneficial owner of such Securities and as reflected on the books of a registered Holder who holds such Securities on behalf of the beneficial owner, as the case may be.
“Board of Directors” means the board of directors of the Company or any duly authorized committee of such board.
“Board Resolution” means a copy of a resolution certified by an Authorized Officer or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification.
“Book-Based System” means, in relation to the Global Securities of a Series, the debt clearing, record entry, transfer and pledge systems and services established and operated by or on behalf of the related Depositary for such Series (including where applicable pursuant to one or more agreements between such Depositary and its participants establishing the rules and procedures for such systems and services).
“Book-Entry Securities” means any Global Securities issued or registered in the name of a Clearing Agency maintaining book-entry records with respect to the ownership and transfer of such Securities, or its nominee, or a custodian of such Clearing Agency, or its nominee, and for which registration, transfer and exchange of such Securities or any interest therein may not be effected by the Trustee or any other Person maintaining the Security Register, except in accordance with the terms of this Indenture and the rules of the Clearing Agency.
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“Business Day” means each Monday, Tuesday, Wednesday, Thursday and Friday which (a) is not a day on which banking institutions and trust companies in The City of Toronto, Ontario are authorized or obligated by law, regulation or executive order to be closed , and (b) in connection with a particular Series, is a day in any Place of Payment relative to such Series on which the related Depositary, if any, for such Series processes transactions under its Book-Based System.
“Canadian dollars”, “Cdn dollars”, “Cdn$” and “$” each mean lawful currency of Canada.
“Capital Stock” means, with respect to any Person, any and all shares, interests, participations or equivalents (however designated) of such Person’s capital stock whether now outstanding or issued after the date of this Indenture, including, without limitation, all Common Shares and Preferred Shares.
“CDS” means CDS Clearing and Depository Services Inc., together with its successors from time to time.
“Clearing Agency” means, in relation to a Series issuable in whole or in part in the form of one or more Global Securities, CDS or any other organization recognized as a “clearing agency” pursuant to applicable securities law that is specified for such purpose in the related Series Supplement.
“Clearing Agency Participant” means a broker, dealer, bank, other financial institution or other Person for whom from time to time a Clearing Agency effects book-entry transfers and pledges of Book-Entry Securities held by the Clearing Agency.
“Common Shares” means, with respect to any Person, any and all shares, interests and participations (however designated and whether voting or non-voting) in such Person’s common equity, whether now outstanding or issued after the date of this Indenture, and includes, without limitation, all series and classes of such common shares.
“Company” means the Person named as the “Company” in the first paragraph of this Indenture, until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor Person. To the extent necessary to comply with the requirements of the provisions of Trust Indenture Legislation as they are applicable to the Company, the term “Company” shall include any other obligor with respect to the Securities for the purposes of complying with such provisions.
“Company Request” or “Company Order” means a written request or order signed in the name of the Company by at least one Authorized Officer.
“Corporate Trust Office” means the office of the Trustee at which at any particular time its corporate trust business shall be principally administered, which office at the Execution Date is located at 1 York Street, 6th Floor, Toronto,
3
Ontario, M5J 0B6, or such other address as the Trustee may designate from time to time by notice to the Holders and the Company, or the principal corporate trust office of any successor Trustee (or such other address as such successor Trustee may designate from time to time by notice to the Holders and the Company).
“DBRS” means DBRS Limited or any successor to the rating agency business thereof;
“Default” means, with respect to a Series, any event that is, or after notice or passage of time or both would be, an Event of Default with respect to such Series.
“Definitive Security” means a Security of a Series in definitive form.
“Depositary” means, with respect to a Series issuable in whole or in part in the form of one or more Global Securities, the Clearing Agency or Clearing Agencies designated in or pursuant to the related Series Supplement as the Depositary or Depositaries for such Series, together with their respective successors in such capacity; provided, however, that, if no Clearing Agency is so designated in the related Series Supplement, “Depositary” means, with respect to such Series, CDS.
“Discount Security” means a Security issued pursuant to this Indenture which is offered for a price less than the amount thereof to be due and payable at Maturity other than solely due to such amount being determined by application of a multiplier or leverage factor.
“Electronic Means” means the following communications methods: e-mail, facsimile transmission, secure electronic transmission containing applicable authorization codes, passwords and/or authentication keys issued by the Trustee, or another method or system (including the CDSX System or such similar system used by a global depository) specified by the Trustee as available for use in connection with its services hereunder.
“Event of Default” has the meaning specified in Article Four.
“Execution Date” means December 17, 2021, the date on which this Indenture was originally executed by the parties hereto
“Global Security” means a Security of a Series in global form.
“Government Obligations” means securities denominated in the currency in which the Series of the Securities are payable which are (a) either (i) direct obligations of the government which issued the currency in which the Securities of such Series are payable or of a Person controlled or supervised by or acting as an agency or instrumentality of such government, the payment of which is unconditionally guaranteed by such government, or, (ii) where the Securities of such Series are denominated in Canadian dollars, (ii) direct obligations of a province of Canada with a long term debt rating of at least “A” by S&P, “A2” by Moody’s or “A” by DBRS (or, where such Government Obligations are short term debt securities, a short term debt rating of at least “A-1” by S&P, “P-1” by
4
Moody’s or “R-1 (middle)” by DBRS) or the equivalent rating from any successors to such rating agency businesses, and (b) not callable or redeemable at the option of the issuer thereof.
“Guarantee” has the meaning ascribed to such term in Section 202.(a)(i)(x)
“Guarantor” means any Person that provides a Guarantee, pursuant to a Supplemental Indenture or otherwise, unless and until such Person’s Guarantee is released in accordance with its terms.
“Holder” means a Person in whose name a Security is registered in the Security Register (and including, for greater certainty, in the case of any Global Security, the applicable Depositary or its nominee which has possession of such Global Security or in whose name such Global Security is registered, as the case may be).
“Holder Direction” means, in respect of an Act of Holders of a Series, an approval of or direction to make, give or take such Act given (i) by Holders of more than 50% of the principal amount of such Series then Outstanding voted (either in person or by proxies duly appointed in writing) at a meeting of such Holders duly called and held in accordance with the provisions of Article Eleven or (ii) pursuant to an instrument in writing signed in one or more counterparts by Holders (in person or by their agent duly appointed in writing) of more than 50% of the principal amount of such Series then Outstanding.
“Indenture” means (i) this instrument as originally executed (including all exhibits and schedules hereto) and as it may from time to time be supplemented or amended (other than by a Series Supplement) by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof, or (ii) with respect to a particular Series, this Indenture as defined in clause (i) above as supplemented by the related Series Supplement.
“Interest Payment Date” means the Stated Maturity of an installment of interest on the applicable Series of Securities.
“Maturity”, when used with respect to any Security, means the date on which the principal of such Security becomes due and payable as therein or herein provided, whether at the Stated Maturity thereof or by declaration of acceleration, call for redemption or otherwise.
“Maturity Consideration” means, with respect to Securities of a Series (whether or not issued by, or the obligation of, the Company), the amount of money (including payment of principal and premium, if any, and any accrued but unpaid interest thereon), or a combination of money, securities and/or other property, in either case payable or deliverable upon payment of the discharge of the Securities of such Series upon Maturity.
“NI 51-102” means National Instrument 51-102 – Continuous Disclosure Obligations;
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“Officer’s Certificate” means a certificate signed in the name of the Company by at least one Authorized Officer.
“Opinion of Counsel” means a written opinion of legal counsel who is acceptable to the Trustee, acting reasonably (which counsel may be an employee of, or external counsel to, the Company or any Guarantor or any of their Affiliates or the Trustee).
“Outstanding”, when used with respect to the Securities or a Series of Securities means, as of the date of determination, all Securities (or all Securities of such Series, as applicable) theretofore authenticated and delivered under this Indenture, except:
| a. | Securities theretofore cancelled by the Trustee or delivered to the Trustee, the related Security Registrar or the related Paying Agent for cancellation; |
| b. | Securities, or portions thereof, for whose payment, redemption or purchase money in the necessary amount has been theretofore deposited with the Trustee or any related Paying Agent (other than the Company) in trust or set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent) for the Holders of such Securities; provided that, if such Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made; |
| c. | Securities, except to the extent provided in Section 302 and Section 303, with respect to which the Company has effected defeasance or covenant defeasance as provided in Article Three; and |
| d. | Securities in exchange for or in lieu of which other Securities have been authenticated and delivered pursuant to this Indenture, other than any such Securities in respect of which there shall have been presented to the Trustee proof satisfactory to it that such Securities are held by a bona fide purchaser in whose hands the Securities are valid obligations of the Company. |
In determining whether the Holders of the requisite principal amount of Outstanding Securities (or Series of Outstanding Securities) have given any request, demand, direction, consent or waiver hereunder or are present at a meeting of Holders of Securities for quorum purposes, the principal amount of a Discount Security that may be counted in making such determination and that shall be deemed to be Outstanding for such purposes shall be equal to the face amount due and payable at Maturity and, provided further, that, Securities owned by the Company, or any other obligor upon the Securities or any Affiliate of the Company or such other obligor, shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such request, demand, direction, consent or waiver, only Securities which the Trustee knows to be so owned shall be so disregarded. Securities so owned which have been pledged in good faith may be regarded as
6
Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee is not the Company or any other obligor upon the Securities or any Affiliate of the Company or such other obligor.
“Paying Agent” means, in respect of a Series, any Person authorized by the Company in or pursuant to the Indenture or the related Series Supplement to pay the principal of (or premium, if any) or interest on any Securities of such Series on behalf of the Company.
“Person” means any individual, corporation, partnership, joint venture, limited liability company, association, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof, or any other entity.
“Place of Payment” means, in relation to a Series, the place or places where the principal of (and premium or other amounts, if any) and interest on Securities of such Series are payable as specified in the related Series Supplement or, if no Place of Payment is specified in such Series Supplement, the Corporate Trust Office of the Trustee located in the City of Toronto, Ontario.
“Predecessor Security” of any particular Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 208 in exchange for a mutilated Security or in lieu of a lost, destroyed or stolen Security shall be deemed to evidence the same debt as the mutilated, lost, destroyed or stolen Security.
“Preferred Shares” means, with respect to any Person, any and all shares, interests, participations or other equivalents (however designated) of such Person’s preferred or preference shares whether now outstanding or issued after the date of this Indenture, and includes, without limitation, all classes and series of preferred or preference shares.
“Redemption Date”, when used with respect to any Securities to be redeemed, means the date fixed for such redemption by or pursuant to this Indenture.
“Redemption Price”, when used with respect to any Security to be redeemed, unless otherwise provided in a Series Supplement with respect to such Security, means the price at which it is to be redeemed pursuant to this Indenture.
“Regular Record Date”, for the interest payable on any Interest Payment Date, means the date specified with respect to such Series (whether or not a Business Day) in the related Series Supplement.
“Responsible Officer”, when used with respect to the Trustee, means the chair or any vice-chair of the board of directors, the chair or vice-chair of the executive committee of the board of directors, the president, any vice president, any assistant vice president, the secretary, any assistant secretary, the treasurer, any
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assistant treasurer, the cashier, any assistant cashier, any trust officer or assistant trust officer, the controller and any assistant controller or any other officer of the Trustee customarily performing functions similar to those performed by any of the above designated officers and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his knowledge of and familiarity with the particular subject.
“Security” and “Securities” have the meaning set forth in the paragraph immediately preceding Section 101 of this Indenture and more particularly means any Securities authenticated and delivered under this Indenture.
“SEDAR” means the System for Electronic Document Analysis and Retrieval or any successor computer system maintained by the Canadian securities administrators for the transmission, receipt, acceptance, review and dissemination of documents filed in electronic format.
“Series” or “Series of Securities” means all Securities of a series, whether or not any such Securities have been or are to be issued on the same date.
“Series Supplement” means with respect to a Series, a supplement to this Indenture establishing the terms and conditions applicable to such Series, as such supplement may be amended, modified, supplemented, consolidated or restated from time to time.
“Stated Maturity”, when used with respect to any Series of Securities or any installment of interest thereon, means the date specified in such Series as the fixed date on which the principal of such Series or such installment of interest is due and payable.
“Subsidiary” means any firm, partnership, corporation or other legal entity in which the Company, the Company and one or more Subsidiaries or one or more Subsidiaries owns, directly or indirectly, a majority of the Voting Shares or has, directly or indirectly, the right to elect a majority of the board of directors, if it is a corporation, or the right to make or control its management decisions, if it is some other Person.
“Supplemental Indenture” means an indenture supplemental to this Indenture (including a Series Supplement, unless the context otherwise requires) entered into pursuant to the applicable provisions hereof or an amendment to one or more Series Supplements entered into pursuant to the applicable provisions hereof.
“Trust Indenture Legislation” means, with respect to a Series, at any time, any applicable statute of Canada or any province or territory thereof, in each case, relating to trust indentures for debt obligations and the rights, duties and obligations of trustees and of corporations issuing or guaranteeing debt obligations under trust indentures, in each case only to the extent that such provisions are at such time in force and applicable to this Indenture, the Company, any Guarantor or the Trustee.
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“Trustee” means the Person named as the “Trustee” in the first paragraph of this Indenture, until a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean such successor Trustee.
“U.S.$” and “U.S. dollars” each mean lawful currency of the United States of America.
“Voting Shares” means any Capital Stock having voting power under ordinary circumstances to vote in the election of a majority of the directors of a corporation (irrespective of whether or not at the time stock of any other class or classes shall have or might have voting power by reason of the happening of any contingency).
SECTION 102. OTHER DEFINITIONS.
| DEFINED TERM |
DEFINED IN SECTION | |
| Base Currency |
116 | |
| covenant defeasance |
303 | |
| defeasance |
302 | |
| Determination Date |
116 | |
| Event of Default |
401 | |
| First Currency |
117 | |
| Guarantee |
202 | |
| Instructing Officers |
516 | |
| Instructions |
516 | |
| liquidation currency |
116 | |
| Other Currency |
117 | |
| rate(s) of exchange |
116 | |
| Relevant Person |
119 | |
| Security Register |
206 | |
| Security Registrar |
206 | |
| Successor Company |
701 | |
| Transfer Agent |
209 |
SECTION 103. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company to the Trustee to take any action under any provision of this Indenture, the Company shall furnish to the Trustee, upon the Trustee’s request therefor, an Officer’s Certificate stating that all conditions precedent, if any, provided for in this Indenture (including any covenant, the compliance with which constitutes a condition precedent) relating to the proposed action have been complied with and an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if any, have been complied with, except that, in the case of any such application or request as to which the furnishing of such documents is specifically required by any provision of this Indenture relating to such particular
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application or request, no additional certificate or opinion need be furnished. Where this Indenture requires that the Company’s compliance with its conditions are subject to review by an auditor or accountant, an opinion or report shall be delivered by the auditor of the Company, or any accountant licensed as an accountant under the legislation of the jurisdiction in which the accountant practices, evidencing that such conditions have been complied with in accordance with the terms of this Indenture, which opinion or report shall be based on the examinations or enquiries required to be made by such Person under this Indenture.
Subject to Section 104, every certificate (except, for greater certainty, certificates provided pursuant to Section 906), opinion (other than an opinion provided pursuant to Section 304.(a)(i)(4)) or report with respect to compliance with a condition or covenant provided for in this Indenture shall include:
(a) a statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions and other terms herein relating thereto;
(b) a statement that each such individual has made such examination or investigation as such individual believes is necessary to enable such individual to make the statements or give the opinions contained or expressed therein; and
(c) a statement as to whether, in the belief or opinion of each such individual, such covenant or condition has been complied with or satisfied in accordance with the terms of this Indenture;
provided that an Opinion of Counsel may be limited to reliance on an Officer’s Certificate or other certification by an officer of or officers of the Company (or, where applicable, a Guarantor or an Affiliate of the Company or a Guarantor) or on certificates of public officials as to matters of fact.
SECTION 104. FORM OF DOCUMENTS DELIVERED TO THE TRUSTEE.
In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which his certificate or opinion is based are erroneous. Any such certificate or Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate or
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opinion of, or representations by, an officer or officers of the Company (or, where applicable, a Guarantor or an Affiliate of the Company or a Guarantor) stating that the information with respect to such factual matters is in the possession of the Company (or such Guarantor or Affiliate, as applicable), unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.
SECTION 105. ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be made, given or taken by Holders of one or more Series of Securities may be made, given or taken by way of a Holder Direction from Holders of such one or more Series; and, except as herein otherwise expressly provided, such action shall become effective when the instrument or record in respect of the Holder Direction is delivered to the Trustee and, where it is hereby expressly required, to the Company. Such instrument and any such record (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of the Holders signing such instrument or instruments and so voting at any such meeting or by proxy. Proof of execution of any such instrument or of a writing appointing any such agent, or of the holding by any Person of a Security, shall be sufficient for any purpose of this Indenture and (subject to Section 501 and Trust Indenture Legislation) conclusive in favor of the Trustee and the Company, if made in the manner provided in this Section. The record of any meeting of Holders of Securities shall be proved in the manner provided in Section 1106.
Without limiting the generality of this Section, unless otherwise established in or pursuant to a Series Supplement pursuant to Section 202, a Holder, including a Clearing Agency that is a Holder of a Global Security, may make, give or take, by a proxy or proxies, duly appointed in writing, any request, demand, authorization, direction, notice, consent, waiver or other action provided in this Indenture to be made, given or taken by Holders, and a Clearing Agency that is a Holder of a Global Security may provide its proxy or proxies to the Beneficial Owners of interests in any such Global Security through such Clearing Agency’s standing instructions and customary practices.
(b) The fact and date of the execution by any Person of any such instrument or writing may be proved in any reasonable manner which the Trustee deems sufficient and in accordance with such reasonable rules as the Trustee may determine; and the Trustee may in any instance require further proof with respect to any of the matters referred to in this Section.
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(c) The ownership of Securities and the principal amount and serial numbers of Securities held by any Person, and the date of holding the same, shall be proved by the Security Register.
(d) If the Company shall solicit from the Holders any request, demand, authorization, direction, notice, consent, waiver or other Act, the Company may, at its option, by or pursuant to a Board Resolution, fix in advance a record date for the determination of the Holders entitled to give such request, demand, authorization, direction, notice, consent, waiver or other Act, but the Company shall have no obligation to do so. If such a record date is fixed, such request, demand, authorization, direction, notice, consent, waiver or other Act may be given before or after such record date, but only the Holders of record at the close of business on such record date shall be deemed to be Holders for the purposes of determining whether Holders of the requisite proportion of Securities (or Series of Securities) then Outstanding have authorized or agreed or consented to such request, demand, authorization, direction, notice, consent, waiver or other Act, and for this purpose the Securities (or Securities of a Series of Securities) then Outstanding shall be computed as of such record date; provided that no such request, demand, authorization, direction, notice, consent, waiver or other Act by the Holders on such record date shall be deemed effective unless it shall become effective pursuant to the provisions of this Indenture not later than eleven months after the record date.
(e) Any request, demand, authorization, direction, notice, consent, waiver or other Act by the Holder of any Security shall bind every future Holder of the same Security or the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof, in respect of anything done, suffered or omitted to be done by the Trustee, any Paying Agent, any Security Registrar or the Company in reliance thereon, whether or not notation of such action is made upon such Security.
SECTION 106. NOTICES, ETC., TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other document provided or permitted by this Indenture to be made upon, given, delivered or furnished to, or filed with,
(a) the Trustee by any Holder or by the Company shall be sufficient for every purpose hereunder if made, given, furnished, delivered or filed in writing to or with a representative of the Trustee at 1 York Street, 6th Floor, Toronto, Ontario, M5J 0B6 Attention: Corporate Trust Administration or by email to [REDACTED] and [REDACTED]; and
(b) the Company by the Trustee or any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if made, given, furnished or delivered in writing to the Company to 333 Bloor Street East, 10th Floor, Toronto, Ontario, Canada, M4W 1G9, Attention: [REDACTED] or by
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email [REDACTED], with a copy to [REDACTED], email [REDACTED], or, in either case, at any other address previously furnished in writing to the Trustee by the Company.
Any such request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other document shall be deemed to have been received on the day made, given, furnished or delivered except when sent by electronic transmission (including email), in which case it will be deemed to have been received on the day it was sent, if such electronic transmission was sent on a Business Day during normal business hours of the recipient, or on the next succeeding Business Day, if not sent on a Business Day or during such business hours. Each of the Trustee and the Company may from time to time notify the other party of a change in address or electronic transmission address by notice as provided in this Section 106.
SECTION 107. NOTICE TO HOLDERS; WAIVER.
Unless otherwise expressly provided in this Indenture or in a Series Supplement in respect of a Series, any notice to a Holder under the provisions hereof shall be valid and effective if in the case of a Holder of registered Security or a Global Security, it is delivered, by (a) electronic communication to such Holder at its electronic address appearing in any of the Security Registers or through the CDSX System or such similar system used by a Depositary or (b) by mail (postage prepaid) or courier to such Holder at its address appearing in any of the Security Registers or (c) otherwise in accordance with the procedures of the Depositary. In any case where notice to Holders is delivered, neither the failure to deliver such notice, nor any defect in any notice so delivered, to any particular Holder shall impair or affect the validity or sufficiency of such notice with respect to other Holders. Any notice delivered to a Holder in the aforesaid manner shall be conclusively deemed to have been validly delivered, given and received at the time it is sent, whether or not actually received by such Holder. All notices to joint Holders of any Securities may be given to whichever one of the holders thereof is named first in the Security Registers, and any notice so given shall be sufficient notice to all Holders of such Security.
Any notice to the Holders which are not registered Securities shall be valid and effective and deemed to have been received by all such Holders if published once in a newspaper of general circulation published in Toronto, Ontario, and such other cities, if any, at which Security Registers in respect of such Securities are required to be kept.
Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason of any other cause, it shall be impracticable to mail notice of any event as required by any
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provision of this Indenture, then any method of giving such notice as shall be satisfactory to the Trustee shall be deemed to be a sufficient giving of such notice.
SECTION 108. CONFLICT OF ANY PROVISION OF INDENTURE WITH THE TRUST INDENTURE LEGISLATION.
If and to the extent that any provision of this Indenture (including any Series Supplement or other Supplemental Indenture) limits, qualifies or conflicts with a mandatory requirement of Trust Indenture Legislation, such mandatory requirement shall prevail. At all times in relation to this Indenture, any Supplemental Indenture and any action to be taken hereunder or thereunder, the Company, any Guarantor and the Trustee each shall observe and comply with Trust Indenture Legislation and the Company, any Guarantor, the Trustee and each Holder shall be entitled to the benefits of Trust Indenture Legislation.
SECTION 109. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.
SECTION 110. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company shall bind its successors and permitted assigns (if any), whether so expressed or not. All covenants and agreements of the Trustee in this Indenture shall bind its successors and permitted assigns (if any), whether so expressed or not.
SECTION 111. SEPARABILITY CLAUSE.
In case any provision in this Indenture or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 112. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Securities, express or implied, shall give to any Person (other than the parties hereto, any Paying Agent and any Security Registrar, and their respective successors hereunder, and the Holders) any benefit or any legal or equitable right, remedy or claim under this Indenture or in respect of the Securities.
SECTION 113. GOVERNING LAW AND ATTORNMENT.
This Indenture and the Securities shall be governed by and construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein. With respect to any suit, action or proceedings relating to this Indenture or any Securities, each of the Company, the Trustee and, by their acceptance of Securities and
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the benefits of this Indenture and the related Series Supplement, the Holders from time to time irrevocably submits and attorns to the non-exclusive jurisdiction of the courts of the Province of Ontario.
SECTION 114. DAY NOT A BUSINESS DAY.
In any case where any Interest Payment Date, Redemption Date, Stated Maturity or other date for payment of any amount of interest, principal, premium or other amount, if any, with respect to any Security shall not be a Business Day at the Place of Payment, then (notwithstanding any other provision of this Indenture or of the Securities other than a provision in a Series Supplement with respect to the Securities which specifically states that such provision shall apply in lieu of this Section) payment of interest or principal (and premium or other amounts, if any) need not be made on such date, but may be made on the next succeeding Business Day with the same force and effect as if made on the Interest Payment Date, Redemption Date, Stated Maturity or other payment date, as applicable, and no interest shall accrue with respect to such payment for the period from and after such Interest Payment Date, Redemption Date, Stated Maturity or other payment date, as applicable, to the next succeeding Business Day, and the Holder of such Security shall not be entitled to any additional interest or other payment in respect of the delay.
Except as otherwise expressly provided in this Indenture or a Series Supplement, if any day on which an amount is to be determined or an action is to be taken hereunder at a particular location is not a Business Day at such location, then such amount shall be determined or such action shall be taken at or before the requisite time on the next succeeding day that is a Business Day at such location
SECTION 115. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret any other indenture, loan or debt agreement of the Company, any Guarantor or their respective Subsidiaries or of any other Person. Any such indenture, loan or debt agreement may not be used to interpret this Indenture.
SECTION 116. CONVERSION OF CURRENCY.
The Company covenants and agrees that the following provisions shall apply to conversion of currency in the case of any Series of Securities and this Indenture:
(a) (i) If, for the purpose of obtaining judgment in, or enforcing the judgment of, any court in any country, it becomes necessary to convert into any other currency (the “judgment currency”) an amount in the currency due hereunder or under such Series (the “Base Currency”), then the conversion shall be made at the rate of exchange prevailing on the Business Day before the day on which a final judgment which is not appealable is given or the order of enforcement is made, as the case may
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be (unless a court shall otherwise determine) (such day being the “Determination Date”).
(ii) If there is a change in the rate of exchange prevailing between the Determination Date for a judgment and the date of receipt of the amount due in respect of such judgment, the Company will pay such additional (or, as the case may be, such lesser) amount, if any, as may be necessary so that the amount paid in the judgment currency when converted at the rate of exchange prevailing on the date of receipt will produce the amount in the Base Currency originally due.
(b) In the event of the winding-up of the Company at any time while any amount or damages owing under such Series and this Indenture, or any judgment or order rendered in respect thereof, shall remain outstanding, the Company shall indemnify and hold the Holders of the Securities of such Series and the Trustee harmless against any deficiency arising or resulting from any variation in rates of exchange between (1) the date as of which the equivalent of the amount in the Base Currency due or contingently due under such Series and this Indenture (other than under this Subsection (b)) is calculated for the purposes of converting such amounts into another currency (the “liquidation currency”) in such winding-up and (2) the final date for the filing of proofs of claim in such winding-up. For the purpose of this Subsection (b), the final date for the filing of proofs of claim in the winding-up of the Company shall be the date fixed by the liquidator or otherwise in accordance with the relevant provisions of applicable law as being the latest practicable date as at which liabilities of the Company may be ascertained for such winding-up prior to payment by the liquidator or otherwise in respect thereto.
(c) The obligations contained in Subsections (a)(ii) and (b) of this Section 116 shall constitute obligations of the Company separate and independent from its other respective obligations under the Securities and this Indenture, shall give rise to separate and independent causes of action against the Company, shall apply irrespective of any waiver or extension granted by any Holder or the Trustee or any of them from time to time and shall continue in full force and effect notwithstanding any judgment or order or the filing of any proof of claim in the winding-up of the Company for a liquidated sum in respect of amounts due hereunder (other than under Subsection (b) above) or under any such judgment or order. Any such deficiency as aforesaid shall be deemed to constitute a loss suffered by the Holders or the Trustee, as the case may be, and no proof or evidence of any actual loss shall be required by the Company or the liquidator or otherwise or any of them. In the case of Subsection (b) above, the amount of such deficiency shall not be deemed to be reduced by any variation in rates of exchange occurring between the said final date and the date of any liquidating distribution.
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(d) The term “rate(s) of exchange” shall in respect of each Series mean (unless otherwise provided in the applicable Series Supplement) the rate of exchange quoted by The Toronto-Dominion Bank at its central foreign exchange desk in its head office in Toronto at 12:00 noon (Toronto, Ontario time) for purchases of the Base Currency with the judgment currency or liquidation currency, as applicable, and includes any premiums and costs of exchange payable.
(e) Neither the Trustee nor any Paying Agent shall have any duty or liability with respect to monitoring or enforcing this Section 116.
SECTION 117. CURRENCY EQUIVALENT.
Except as provided in Section 116, for purposes of the construction of the terms of this Indenture or of the Securities, in the event that any amount is stated herein in the currency of one nation (the “First Currency”), as of any date such amount shall also be deemed to represent the amount in the currency of any other relevant nation (the “Other Currency”) which is required to purchase such amount in the First Currency at the rate of exchange quoted by The Toronto-Dominion Bank at its central foreign exchange desk in its head office in Toronto at 12:00 noon (Toronto, Ontario time) on the date of determination.
SECTION 118. NO RECOURSE AGAINST OTHERS.
A director, officer, employee or stockholder, as such, of the Company shall not have any liability for any obligations of the Company under the Securities or this Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. Each Holder by accepting any of the Securities waives and releases all such liability.
SECTION 119. RELIANCE ON FINANCIAL DATA.
In computing any amounts under this Indenture,
(i) to the extent relevant in computing any amounts under this Indenture, the Company shall use audited financial statements of the Company, its Subsidiaries, any Person that would become a Subsidiary in connection with the transaction that requires the computation and any Person from which the Company or a Subsidiary has acquired an operating business, or is acquiring an operating business in connection with the transaction that requires the computation (each such Person whose financial statements are relevant in computing any particular amount, a “Relevant Person”) for the period or portions of the period to which the computation relates for which audited financial statements are available on the date of computation and unaudited financial statements and other current financial data based on the books and records of the Relevant Person or Relevant Persons, as the case may be, to the extent audited financial statements for the period or any portion of the period to
17
which the computation relates are not available on the date of computation, and
(ii) the Company shall be permitted to rely in good faith on the financial statements and other financial data derived from the books and records of any Relevant Person that are available on the date of the computation.
SECTION 120. DOCUMENTS IN ENGLISH.
The Company, the Trustee and, by their acceptance of Securities and the benefits of this Indenture (including the related Series Supplement), the Holders acknowledge that this Indenture, each Security and each document related hereto and thereto (whether or not any of such documents is also drawn up in French) has been drawn up in English at the express will of such Persons. Les parties à ces présentes conviennent que ces présentes ainsi que tout document qui s’y rattache (incluant tout document rédigé en francais et en anglais) soient rédigés en langue anglais à la volunté express des parties.
SECTION 121. NO CONFLICT WITH SERIES SUPPLEMENTS.
The terms and provisions of a Series Supplement for any particular Series may eliminate, modify, amend or add to any of the terms and provisions of this Indenture, but solely as applied to such Series. The insertion of the phrase “in any Series Supplement”, “unless otherwise provided in the related Series Supplement” or similar phrases in this Indenture, or the absence of any such phrase, shall not limit the scope of or otherwise affect the proceeding sentence or Section 202. For greater certainty, if a term or provision contained in this Indenture shall conflict or be inconsistent with a term or provision of any such Series Supplement, such Series Supplement shall govern with respect to the Series to which it relates; provided, however, that the terms and provisions of such Series Supplement may eliminate, modify, amend or add to the terms and provisions of this Indenture solely as applied to such Series.
SECTION 122. LANGUAGE OF NOTICES, ETC.
Any request, demand, authorization, direction, notice, consent, election or waiver required or permitted under this Indenture shall be in the English language (or in the French language in the Province of Québec, but only to the extent required by law), except that, if the Company so elects, any published notice may be in an official language of the country of publication to the extent permitted by law.
SECTION 123. CURRENCY OF PAYMENT.
Unless expressly provided to the contrary in this Indenture or otherwise expressly provided in the Series Supplement in respect of a Series, all payments to be made hereunder and in respect of any Series shall be made in Canadian dollars.
SECTION 124. COUNTERPARTS; ELECTRONIC DELIVERY.
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This Indenture may be executed in several counterparts, each of which, when so executed shall be deemed to be an original, and such counterparts together shall constitute one and the same instrument and notwithstanding their date of execution shall be deemed to be dated as of December 17, 2021. The exchange of copies of this Indenture and of signature pages electronically (including by electronic mail in portable document format (pdf)) shall constitute effective execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the original Indenture for all purposes. Signatures of the parties hereto transmitted electronically (including by electronic mail in pdf) shall be deemed to be their original signatures for all purposes.
SECTION 125. WAIVER OF TRIAL BY JURY.
EACH OF THE COMPANY AND THE TRUSTEE HEREBY AGREES TO WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS INDENTURE, THE SECURITIES OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS INDENTURE. The scope of this waiver is intended to encompass any and all disputes that may be filed in any court and that relate to the subject matter of this Indenture, including contract claims, tort claims, breach of duty claims, and all other common law and statutory claims. Each party hereto acknowledges that this waiver is a material inducement to enter into a business relationship, that such party has already relied on the waiver in entering into this Indenture, and that such party shall continue to rely on the waiver in its related future dealings. Each party hereto further warrants and represents that it has reviewed this waiver with its legal counsel, and that it knowingly and voluntarily waives its jury trial rights following consultation with legal counsel. In the event of litigation, this Indenture may be filed as a written consent to a trial by the court without a jury.
ARTICLE TWO
THE SECURITIES
SECTION 201. TITLE AND TERMS.
An unlimited aggregate principal amount of Securities may be authenticated and delivered under this Indenture. The Securities may be issued in one or more Series. All Securities of a Series shall be identical except as may be set forth in the applicable Series Supplement detailing the adoption of the terms thereof pursuant to the authority granted under a Board Resolution. In the case of Securities of a Series to be issued from time to time, the Series Supplement may provide for the method by which specified terms (such as interest rate, maturity date, record date or date from which interest shall accrue) are to be determined. Securities may differ between Series in respect of any matters.
To the extent that any Series Supplement provides that the related Series are redeemable, the Securities shall be redeemable as provided in Article Ten.
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SECTION 202. ESTABLISHMENT OF TERMS OF SERIES OF SECURITIES.
At or prior to the issuance of any Securities of any Series, the Company may establish (as to the Series generally, in the case of clause (a), and either as to such Securities within a Series or as to such Series generally in the case of clause (b) to (y)), by a Series Supplement, Board Resolution or an Officer’s Certificate pursuant to authority granted under a Board Resolution, the following terms applicable to such Securities:
(a) the title of the Securities of the Series (which shall distinguish the Securities of that particular Series from the Securities of any other Series);
(b) the ranking of the Securities of the Series relative to other Debt of the Company and the terms of any subordination provisions;
(c) any limit upon the aggregate principal amount of the Securities of the Series which may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the Series);
(d) the date or dates (or manner of determining the same) on which the Maturity Consideration for the Securities of the Series are payable;
(e) whether the Securities of the Series will bear interest, the rate or rates (which may be fixed or variable) at which the Securities of the Series shall bear interest, if any, and, if applicable, the interest rate basis, formula or other method of determining such interest rate or rates, the date or dates from which such interest, if any, shall accrue, the Interest Payment Dates on which such interest, if any, shall be payable or the method by which such dates will be determined, the record dates for the determination of Holders thereof to whom such interest is payable (in the case of Securities in registered form), and the basis upon which such interest will be calculated if other than as provided in Section 209;
(f) if other than Canadian dollars, the currency or currencies, including composite currencies in which Securities of the Series shall be denominated;
(g) any Place of Payment in addition to or instead of the Corporate Trust Office of the Trustee and the method of such payment, if by electronic funds or wire transfer, mail or other means, to the extent different or additional to the method provided herein, where Securities of such Series may be surrendered for registration, transfer or exchange and where demand to or upon the Company in respect of such Securities and this Indenture may be served;
(h) the price or prices at which, the period or periods within which, and the terms and conditions upon which, Securities of the Series may be redeemed, in whole or in part at the option of the Company or otherwise;
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(i) the form of the Securities of the Series and whether Securities of the Series are to be issued in registered form or bearer form or both and the form of any legend or legends to be placed on any such Security;
(j) whether Securities of the Series are to be issuable in fully certificated form or as Book-Entry Securities and, if in certificated form, whether such Securities are to be issuable initially in the form of one or more Global Securities;
(k) if the Securities of the Series shall be issued in whole or in part in the form of a Global Security, the terms and conditions, if any, upon which such Global Security may be exchanged in whole or in part for other individual Definitive Securities of such Series to the extent different from what is provided herein and the Depositary for such Global Security;
(l) any authenticating agent, Paying Agent, transfer agent or Security Registrar in respect of such Series to the extent different than, or in addition to, any Person identified as such in this Indenture;
(m) the terms and conditions, if any, upon which the Securities of the Series may be convertible into or exchanged or exercised for common shares, Preferred Shares or other equity interests of the Company or any other securities of any kind, including, if applicable, the initial conversion, exchange or exercise price or rate (whether fixed or subject to further adjustment), the time or period for any such conversion, exchange or exercise and any additional provisions;
(n) the obligation, if any, of the Company to redeem, purchase or repay the Securities of the Series pursuant to any sinking fund or analogous provisions or at the option of a Holder thereof and the price or prices at which, the period or periods within which, and the terms and conditions upon which, Securities of the Series shall be redeemed, purchased or repaid, in whole or in part, pursuant to such obligations;
(o) the terms, if any, upon which the Securities of the Series may be exchanged for other securities, and the terms and conditions upon which such exchange shall be effected, including the exchange price or rate (whether fixed or subject to further adjustment), the exchange time or period and any other additional provisions;
(p) if other than denominations of Cdn$1,000 and any integral multiple thereof, the denominations in which the Securities of the Series shall be issuable;
(q) if the amount of Maturity Consideration with respect to the Securities of the Series may be determined with reference to an index or pursuant to a formula or other method, the manner in which such amounts will be determined and the calculation agent, if any, with respect thereto;
(r) if the principal amount payable at the Stated Maturity of Securities of the Series will not be determinable as of any one or more dates prior to such Stated Maturity, the amount that will be deemed to be such principal amount as of any such date for any purpose, including the principal amount thereof which will be due and payable
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upon any Maturity other than the Stated Maturity and which will be deemed to be outstanding as of any such date (or, in any such case, the manner in which such deemed principal amount is to be determined);
(s) if other than as set forth in Article Three, the defeasance and discharge applicable to the Securities of the Series;
(t) if other than the principal amount thereof, the portion of the principal amount of the Securities of the Series that shall be payable upon declaration of acceleration thereof pursuant to Section 402;
(u) the terms, if any, of the transfer, mortgage, pledge or assignment as security for the Securities of the Series of any properties, assets, moneys, proceeds, securities or other collateral and any corresponding changes to provisions of this Indenture as then in effect;
(v) any addition to or modification or elimination of the Events of Default (and the related definitions) which applies to the Series and any change in the right of the Trustee or the requisite Holders of such Series of Securities to declare the principal amount of, or interest, premium or other amounts, if any, on, such Series of Securities due and payable pursuant to Section 402;
(w) the applicability of, and any addition to or change in, the covenants (and the related definitions) set forth in Article Seven or Article Nine or elsewhere in this Indenture which apply to Securities of the Series;
(x) any guarantees to be provided by any Person in respect of any of the Company’s obligations in respect of the Securities of the Series (a “Guarantee”) and the terms and conditions, if any, pursuant to which such Series is to be guaranteed; and
(y) any other terms of Securities of the Series (which terms shall not be expressly prohibited by the provisions of this Indenture).
All Securities of any one Series need not be issued at the same time and may be issued from time to time, consistent with the terms of this Indenture, if so provided by or pursuant to the Series Supplement referred to above, and the authorized principal amount of any Series may not be increased to provide for issuances of additional Securities of such Series, unless otherwise provided in such Series Supplement.
SECTION 203. DENOMINATIONS.
The Securities shall be issuable, except as otherwise provided with respect to any Series of Securities pursuant to the related Series Supplement in accordance with Section 202, in fully registered form without coupons and in denominations of Cdn$1,000 (for Securities denominated in Canadian dollars) or U.S.$1,000 (for Securities denominated in U.S. dollars) and any integral multiple thereof.
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SECTION 204. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Securities shall be signed on behalf of the Company by one or more Authorized Officers of the Company or one or more directors of the Company. The signature of any such Authorized Officer or director on the Securities may be a manual or electronic signature.
Securities bearing the manual or electronic signatures of individuals who were at any time an Authorized Officer or director of the Company shall be valid and binding and bind the Company, notwithstanding that any such individual has ceased to be an Authorized Officer or director of the Company prior to the authentication and delivery of such Securities or is not an Authorized Officer or director of the Company at the date of such Securities or of this Indenture.
The Trustee shall at any time, and from time to time, authenticate Securities for original issue in the principal amount provided in the Series Supplement delivered pursuant to Section 202, upon receipt by the Trustee of a Company Order. Such Company Order may authorize authentication and delivery pursuant to written instructions from the Company or its duly authorized agent or agents. Each Security shall be dated the date of its authentication unless otherwise provided in the Series Supplement delivered pursuant to Section 202.
The aggregate principal amount of Securities of any Series outstanding at any time may not exceed any limit upon the maximum aggregate principal amount for such Series set forth in the Series Supplement establishing the terms and conditions applicable to such Series delivered pursuant to Section 202, except as provided in Section 205, Section 208, Section 806, Section 1008 or Section 1009.
Prior to the issuance of Securities of any Series, the Trustee shall have received and (subject to the applicable provisions of Article Five) shall be fully protected in relying and acting on: (a) the Series Supplement establishing the form of the Securities of that Series or of Securities within that Series and the terms of the Securities of that Series or of Securities within that Series and (b) an Officer’s Certificate and an Opinion of Counsel, each complying with Section 103.
The Trustee shall have the right to decline to authenticate and deliver any Securities of such Series if the Trustee is not provided with any documentation required by this Indenture to be provided to the Trustee in connection with such action.
The Trustee may appoint an authenticating agent acceptable to the Company to authenticate Securities. An authenticating agent may authenticate Securities whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent. An authenticating agent has the same rights as the Trustee (for which it is agent) to deal with the Company or an Affiliate of the Company.
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No Security shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Security a certificate of authentication substantially in the form set forth in the applicable Series Supplement (or in some other form approved by the Company and the Trustee) duly executed by or on behalf of the Trustee by manual or electronic signature of a designated signing officer of the Trustee, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder. The certificate of authentication on the certificates will not be construed as a representation or warranty by the Trustee as to the validity of this Indenture or of the Securities or of their issuance and the Trustee will in no respect be liable for or answerable for the use made of such Securities or any of them or the proceeds thereof.
In case the Company, pursuant to Article Seven, shall be amalgamated, consolidated or merged with or into any other Person or shall convey, transfer, lease or otherwise dispose of its properties and assets substantially as an entirety to any Person, and the Successor Company shall have assumed (or, by operation of law, shall have become or continue to be liable for) the obligations of the Company under the Securities pursuant to Article Seven, any of the Securities authenticated or delivered prior to such amalgamation, consolidation, merger, conveyance, transfer, lease or other disposition may, from time to time, at the request of the Successor Company, be exchanged for other Securities executed in the name of the Successor Company with such changes in phraseology and form as may be appropriate (but which shall not affect the rights or duties of the Trustee), but otherwise in substance of like tenor as the Securities surrendered for such exchange and of like principal amount; and the Trustee, upon Company Order of the Successor Company, shall authenticate and deliver replacement Securities as specified in such request for the purpose of such exchange. If replacement Securities shall at any time be authenticated and delivered in any new name of a Successor Company pursuant to this Section in exchange or substitution for or upon registration of transfer of any Securities, such Successor Company, at the option of any Holder but without expense to such Holder, shall provide for the exchange of all Securities at the time Outstanding held by such Holder for Securities authenticated and delivered in such new name.
SECTION 205. TEMPORARY SECURITIES.
Pending the preparation of Definitive Securities, the Company may execute, and upon Company Order the Trustee shall authenticate and deliver, temporary Securities which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor of the Definitive Securities in lieu of which they are issued and with such appropriate insertions, omissions, substitutions and other variations as any of the individuals executing such Securities may determine (but which shall not affect the rights or duties of the Trustee), as conclusively evidenced by such individual’s execution of such Securities.
If temporary Securities are issued, the Company will cause Definitive Securities to be prepared without unreasonable delay. After the preparation of Definitive Securities, the temporary Securities shall be exchangeable for Definitive Securities of the
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same Series containing identical terms and provisions upon surrender of the temporary Securities at the office or agency of the Company designated for such purpose pursuant to Section 902 or the relevant Series Supplement, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities, the Company shall execute and, upon Company Order, the Trustee shall authenticate and deliver in exchange therefor a like principal amount of Definitive Securities of authorized denominations of the same Series containing identical terms and provisions and evidencing the same indebtedness as the temporary Securities so exchanged. Until so exchanged, the temporary Securities shall in all respects be entitled to the same benefits under this Indenture as Definitive Securities.
SECTION 206. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause to be kept (i) by the Trustee at its Corporate Trust Office or (ii) by such other registrar as the Company may appoint at such other place or places (if any) in respect of any Series as the Company may designate pursuant to the related Series Supplement or Section 902, a register (the register maintained in such office and in any other office or agency designated pursuant to Section 902 being herein sometimes referred to as the “Security Register”) in which, subject to such reasonable regulations as it may prescribe, the Trustee or the Person maintaining the Security Register shall provide for the registration of Securities and of transfers of Securities as herein provided. Said office or agency shall be the “Security Registrar” for the Securities of each Series.
Upon surrender for registration of transfer of any Security at the Corporate Trust Office of the Trustee or any other office or agency of the Company designated pursuant to Section 902, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more replacement Securities of the same Series of any authorized denomination or denominations, of a like aggregate principal amount and containing identical terms and provisions.
At the option of the Holder, Securities may be exchanged for other Securities of the same Series containing identical terms and provisions, in any authorized denomination or denominations, and of a like aggregate principal amount, upon surrender of the Securities to be exchanged at such office or agency. Whenever any Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the replacement Securities which the Holder making the exchange is entitled to receive.
Furthermore, any Holder of a Global Security shall, by acceptance of such Global Security, agree that transfers of beneficial interests in such Global Security may be effected only through a book-entry system maintained by the Holder of such Global Security (or its agent), and that ownership of a beneficial interest in the Security shall be required to be reflected in a book entry.
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All Securities issued upon any registration of transfer or exchange of Securities shall be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer, or for exchange or redemption, shall (if so required by the Company or the Security Registrar) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar, duly executed by the Holder thereof or its attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or exchange or redemption of Securities, but the Company may require payment of a sum sufficient to pay all documentary, stamp or similar issue or transfer taxes or other governmental charges that may be imposed in connection with any registration of transfer or exchange of Securities, other than exchanges pursuant to Section 204, Section 205, Section 806, Section 1008 or Section 1009 not involving any transfer.
The Company shall not be required (a) to issue replacement Securities or register the transfer of or exchange any Security during a period beginning at the opening of business 15 days before the delivery of a notice of redemption of the Securities under Section 1005 and ending at the close of business on the day of such delivery or (b) to register the transfer of or exchange any Security so selected for redemption in whole or in part, except the unredeemed portion of Securities being redeemed in part.
SECTION 207. BOOK-ENTRY PROVISIONS FOR GLOBAL SECURITIES.
(a) The related Series Supplement shall establish whether the Securities of a Series shall be issued in whole or in part in the form of one or more Global Securities and the Depositary for such Global Security or Securities. Ownership of the Book-Entry Securities will be constituted through beneficial interests in the Book-Entry Securities held by the Depositary or its nominee in the form of a Global Security, and will be represented through book-entry accounts of Clearing Agency Participants, acting on behalf of the Beneficial Owners of such Book-Entry Securities. Any registration of beneficial ownership in, and transfers of beneficial ownership of, Book-Entry Securities may be made only through the applicable Book-Based System by a Clearing Agency Participant of the Depositary identified in the related Series Supplement. In such case, the Trustee shall deal with only the Depositary as representatives of the Beneficial Owners of such Securities for purposes of exercising the rights of Holders hereunder, as provided in this Indenture. Requests and directions from, and votes of, such representatives shall not be deemed to be inconsistent if they are made with respect to different Beneficial Owners.
(b) Notwithstanding any provisions to the contrary contained in any other provisions of this Indenture and in addition thereto, except as otherwise specified in the related Series Supplement, any Book-Entry Security that is a Global Security shall be
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exchangeable pursuant to Section 206 of this Indenture for Securities of the same Series registered in the names of Beneficial Owners other than the Depositary for such Security or its nominee only if (i) such Depositary notifies the Company that it is unwilling or unable to continue as Depositary for such Global Security or if at any time such Depositary ceases to be eligible to be a Clearing Agency in accordance with applicable securities laws, and, in either case, the Company fails to appoint a successor Depositary within 90 days of such event, (ii) the Company executes and delivers to the Trustee an Officer’s Certificate to the effect that such Global Security shall be so exchangeable or (iii) an Event of Default with respect to the Securities of such Series represented by such Global Security shall have occurred and be continuing. Any Book-Entry Security that is exchangeable pursuant to the preceding sentence shall be exchangeable for Securities registered in such names as the Depositary shall direct in writing in an aggregate principal amount equal to the principal amount of such Book-Entry Security with like tenor and terms.
Except as provided above in this Subsection 207(b), a Global Security may only be transferred in whole but not in part (i) by the Depositary with respect to such Global Security to a nominee of such Depositary, (ii) by a nominee of such Depositary to such Depositary or another nominee of such Depositary or (iii) by the Depositary or any such nominee to a successor Depositary or a nominee of such a successor Depositary.
(c) A Global Security issued hereunder shall bear any legend or legends specified therefor in the Series Supplement in respect of such Securities.
(d) The Company, the Trustee and any agent of the Trustee shall treat a person as the Holder of such principal amount of outstanding Securities of such Series represented by a Global Security as shall be specified in a written statement of the Depositary with respect to such Global Security, for purposes of obtaining any consents, declarations, waivers or directions required to be given by the Holders pursuant to this Indenture.
SECTION 208. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If (a) any mutilated Security is surrendered to the Trustee, or (b) the Company and the Trustee receive evidence to their satisfaction of the destruction, loss or theft of any Security, and there is delivered to the Company and the Trustee such security or indemnity as may be required by them to save each of them harmless, then, in the absence of notice to the Company or the Trustee that such Security has been acquired by a bona fide purchaser, the Company shall execute and upon Company Order the Trustee shall authenticate and deliver, in exchange for any such mutilated Security or in lieu of any such destroyed, lost or stolen Security, a replacement Security of like tenor and principal amount, bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become or is about to become due and payable, the Company in its discretion may, instead of issuing a replacement Security, pay such Security.
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Upon the issuance of any replacement Securities under this Section, the Company may require the payment of a sum sufficient to pay all documentary, stamp or similar issue or transfer taxes or other governmental charges that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) in connection therewith.
Every replacement Security of any Series issued pursuant to this Section in lieu of any destroyed, lost or stolen Security of such Series shall constitute a contractual obligation of the Company, whether or not the destroyed, lost or stolen Security of such Series shall be at any time enforceable by anyone, and the Holder thereof shall be entitled to all benefits of this Indenture equally and proportionately with any and all Holders of other Securities of such Series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 209. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Except as otherwise provided in the related Series Supplement, the Company hereby designates the Corporate Trust Office in The City of Toronto, Ontario as the Place of Payment for each Series (and, if the Company shall designate and maintain an additional office or agency at the Place of Payment in respect of such Series, also such additional Place of Payment) and initially appoints the Trustee as the Paying Agent therefor.
Interest on any Security which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name that Security (or one or more Predecessor Securities) is registered at 5:00 p.m. (Toronto time) on the Regular Record Date for such interest. Subject to accrual of any interest on unpaid interest from time to time, interest on each Security shall cease to accrue from the earlier of the Maturity of such Security and, if such Security is called for redemption, the Redemption Date fixed for such Security, unless, in each case, upon due presentation and surrender of such Security for payment on or after such Maturity or Redemption Date, as the case may be, such payment is improperly withheld or refused.
Except as otherwise provided in a Series Supplement applicable to a Series of Securities:
(a) payment of interest, principal or premium, as applicable will be made in the currency in which the Security is denominated;
(b) each Security of a Series, whether issued originally or in exchange or in substitution for previously issued Security, shall bear interest from and including the later of (i) its date of issue; and (ii) the last Interest Payment Date on which interest shall have been paid or made available for payment on the outstanding Securities of such Series;
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(c) fixed rate Securities will bear interest from the original date of issue at the rate per annum set out on the face thereof until the principal amount is paid or made available for payment;
(d) floating rate Securities will bear interest from the original date of issue at rates as adjusted from time to time until the principal amount is paid or made available for payment; and
(e) interest for any period (other than a full coupon period for the installment of interest) shall be calculated on the basis of a 365 day year, based on the actual number of days elapsed in such period.
Except as otherwise provided in a Series Supplement applicable to a Series of Securities, payment of amounts payable in respect of the principal of, and interest (and premium, if any) on:
(a) each Global Security, shall be made to the Depositary or its nominee, as the case may be, as the registered holder of the Global Security. Interest payments on Global Securities will be made by electronic funds transfer or wire transfer (or other payment method as agreed by the Trustee and the Company) on the Interest Payment Date and delivered to the Depositary or its nominee, as the case may be, on the Interest Payment Date. Principal (and premium, if any) payments on Global Securities will be made by electronic funds transfer or wire transfer (or other payment method as agreed by the Trustee and the Company) delivered to the Depositary or its nominee, as the case may be, at Maturity against surrender to the Trustee of the Global Security. As long as the Depositary or its nominee is the registered owner of a Global Security, the Depositary or its nominee, as the case may be, will be considered the sole owner of the Global Security for the purposes of receiving payments of interest, principal and premium, if any, on the Security and for all other purposes under this Indenture and the Security, except as required by law. The record date in respect of the payment of interest on a Global Security will be that day which is the tenth Business Day prior to the applicable Interest Payment Date. The responsibility and liability of the Company and the Trustee (upon timely receipt of the full amount of the payment from the Company) in respect of Securities represented by Global Securities is limited to making payment respect of the principal of, and interest (and premium, if any) due on such Global Securities to the Depositary or its nominee. The forwarding of any such payments of interest, principal or premium, if any, to the Depositary or its nominee shall satisfy and discharge the liability in respect of such amounts on such Security to the extent of the sum represented thereby (plus the amount of any tax, assessment or other governmental charge required by law to be deducted or withheld). The Company and the Trustee shall not be responsible or liable for any payment(s) made or required to be made by the Depositary or any Clearing Agency Participant on account of any beneficial interest in any Global Security and shall not be responsible for maintaining, reviewing or supervising any records relating to any such payment or requirement; or
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(b) each Definitive Security, shall be made at the Corporate Trust Office of the Trustee located in the City of Toronto, Ontario and in the manner specified in the applicable Series Supplement. Payments of interest on each interest bearing Definitive Security (except interest payable on Maturity or redemption of such Security which, at the option of the Company, may be paid only upon surrender of such Security to the Trustee for payment) will be made by (i) cheque dated the Interest Payment Date and delivered to the address of, or (ii) if so agreed by the Trustee and the Company, forwarding funds representing the interest payable by electronic funds transfer or wire transfer on the Interest Payment Date to the account of, the Holder appearing on the Register maintained by BNY Trust Company of Canada, as Registrar and transfer agent (the “Transfer Agent”, which term shall include such other registrar or transfer agent as may, from time to time, be appointed by the Company) at 5:00 p.m. (Toronto time) on the tenth Business Day prior to the Interest Payment Date, or in the case of joint Holders, payable to all such joint Holders and addressed to one of them at the last address appearing in the applicable Register (unless otherwise instructed in writing). Principal (and premium, if any) payments on each Definitive Security will be made, at the option of the Company, by electronic funds transfer, wire transfer or cheque (or other payment method as agreed by the Trustee and the Company) delivered to the Holder of such Definitive Security at Maturity against surrender to the Trustee of such Definitive Security. The mailing, forwarding or delivery of any such cheque or electronic funds transfer or wire transfer, as the case may be, shall satisfy and discharge the liability for the payment of interest, principal, or premium, if any, on such Security to the extent of the sum represented thereby (plus the amount of any tax, assessment or other governmental charge required by law to be deducted or withheld) unless, in the case of payment made by cheque, such cheque is not paid on presentation at any of the places at which such payment is payable. In the event of the non-receipt of such cheque by the applicable Securityholder or the loss, theft or destruction thereof, the Company, upon being furnished with evidence of such non-receipt, loss, theft or destruction and indemnity reasonably satisfactory to it, shall issue or cause to be issued to such Securityholder a replacement cheque for the amount of such cheque.
If payment of interest is made by cheque, such cheque shall be forwarded at least three (3) Business Days prior to the applicable Interest Payment Date, and if payment is made in any other manner, such payment shall be made in a manner whereby the recipient receives credit for such payment on the applicable Interest Payment Date, provided the Trustee and the Paying Agents shall only forward such cheques upon receipt of the full amount of interest being paid in immediately available funds.
SECTION 210. PERSONS DEEMED OWNERS.
Prior to the time of due presentment for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name any Security is registered as the owner of such Security for the purpose of receiving payment of principal of (and premium, if any) and (subject to Section 209) interest on such Security and for all other purposes whatsoever, whether or not such
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Security be overdue, and neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary.
SECTION 211. CANCELLATION.
All Securities surrendered for payment, redemption, registration of transfer or exchange shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee and shall be promptly cancelled by the Trustee. The Company shall deliver to the Trustee for cancellation any Securities previously authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever, and all Securities so delivered shall be promptly cancelled by the Trustee. No Securities shall be authenticated in lieu of or in exchange for any Securities cancelled as provided in this Section, except as expressly permitted by this Indenture. All cancelled Securities held by the Trustee shall be destroyed and, upon the request of the Company, certification of their destruction delivered to the Company unless by a Company Order the Company shall direct that cancelled Securities be returned to it.
SECTION 212. COMPUTATION OF INTEREST.
For the purposes of the Interest Act (Canada), the yearly rate of interest to which any rate of interest payable under a Security, which is to be calculated on any basis other than a full calendar year, is equivalent may be determined by multiplying the rate by a fraction, the numerator of which is the number of days in the calendar year in which the period for which interest at such rate is payable and the denominator of which is the number of days comprising such other basis.
ARTICLE THREE
DEFEASANCE AND DISCHARGE
SECTION 301. COMPANY’S OPTION TO EFFECT DEFEASANCE OR COVENANT DEFEASANCE.
The Company may, at its option at any time, with respect to the Securities or any Series of Securities, elect to have either Sections 302 or 303 be applied to all Outstanding Securities or all Outstanding Securities of such Series upon compliance with the conditions set forth below in this Article Three. To exercise either option, the Company shall provide written notice of its election to the Trustee.
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SECTION 302. DEFEASANCE.
Upon the Company’s exercise under Section 301 of the option applicable to this Section 302, the Company (and, as applicable, any Guarantors) shall be deemed to have been discharged from its obligations with respect to all Outstanding Securities or all Outstanding Securities of a Series, as the case may be, on the date the conditions set forth in Section 304 below are satisfied (hereinafter, “defeasance”). For this purpose, such defeasance means that the Company shall be deemed to have paid and discharged the entire indebtedness represented by such Securities, which shall thereafter be deemed to be “Outstanding” only for the purposes of Section 306 and the other Sections of this Indenture referred to in (A) and (B) below, and to have satisfied all its other obligations under such Securities, the Series Supplement with respect to such Securities and this Indenture insofar as such Securities are concerned (and the Trustee, upon Company Request and at the expense of the Company, shall execute proper instruments acknowledging the same), except for the following which shall survive until otherwise terminated or discharged hereunder: (A) the rights of Holders of such Securities to receive solely from the trust funds described in Section 304 and as more fully set forth in such Section, payments in respect of the principal of (and premium, if any) and interest on such Securities when such payments are due, (B) the Company’s obligations with respect to such Securities under Section 205, Section 206, Section 208, Section 902, Section 903 and Section 906, (C) the rights, powers, trusts, duties and immunities of the Trustee hereunder and the Company’s obligations in connection therewith, including the Company’s obligations under Section 507 and (D) this Article Three. Subject to compliance with this Article Three, the Company may exercise its option under this Section 302 notwithstanding the prior exercise of its option under Section 303 with respect to the Securities.
SECTION 303. COVENANT DEFEASANCE.
Upon the Company’s exercise under Section 301 of the option applicable to this Section 303, the Company (and, as applicable, any Guarantors) shall be released from its obligations under any covenant contained in Article Seven and in Section 904 and Section 905 and any and all additional or different covenants in the Series Supplement (unless otherwise indicated therein), in each case, with respect to the Outstanding Securities or the Outstanding Securities of the applicable Series, as the case may be, on and after the date the conditions set forth below in Section 304 are satisfied (hereinafter, “covenant defeasance”), and such Securities shall thereafter be deemed to be not “Outstanding” for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be deemed “Outstanding” for all other purposes hereunder (it being understood that such Securities shall not be deemed Outstanding for financial accounting purposes). For this purpose, such covenant defeasance means that, with respect to such Securities, the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other provision herein or in any other document (and, for greater certainty, such omission to comply shall not constitute a
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Default or Event of Default), but, except as specified above, the remainder of this Indenture (including Section 507 hereof) and such Securities shall be unaffected thereby. In addition, upon the Company’s exercise under Section 301 of the option applicable to Section 303, no additional or different Events of Default established in the applicable Series Supplement (unless otherwise specified therein) shall constitute Events of Default with respect to such Securities.
SECTION 304. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE.
The following shall be the conditions to application of either Section 302 or Section 303 to all Outstanding Securities or all Outstanding Securities of a Series, as applicable:
(1) The Company shall irrevocably have deposited or, through the Paying Agent, caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 509 who shall agree to comply with the provisions of this Article Three applicable to it) as funds, in trust, for the purpose of making the following payments in its own capacity or through the Paying Agent, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of such Securities, (x) cash in the currency or currencies in which such Securities are payable or (y) Government Obligations which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment, cash in the currency or currencies in which such Securities are payable or (z) any combination of the foregoing which would, in the aggregate, be in an amount sufficient, in the opinion of a nationally recognized firm of independent public accountants or chartered accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge (and which shall be applied by the Trustee or the Paying Agent (or other qualifying trustee) to pay and discharge) the principal of, and interest and premium, if any, on, such Securities on the respective Stated Maturities (or Redemption Date, if applicable) thereof; provided that the Trustee or the Paying Agent (or other qualifying trustee) shall have been irrevocably instructed by the Company to apply such money to said payments with respect to such Securities. Before such a deposit, the Company may give the Trustee, in accordance with Section 1003 hereof, a notice of its election to redeem all of the Outstanding Securities or all of the Outstanding Securities of a Series at a future date in accordance with Article Ten hereof or any applicable provisions of the Series Supplement for such Securities, which notice shall be irrevocable.
(2) No Default or Event of Default shall have occurred and be continuing on the date of the deposit under clause (1) above (other than a Default resulting from the borrowing of funds to be applied to such deposit and the grant of any lien securing such borrowing).
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(3) Such defeasance or covenant defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company is a party or by which it is bound (other than a default resulting from the borrowing of funds to be applied to such deposit and the grant of any lien securing such borrowing).
(4) The Company shall have delivered to the Trustee an Opinion of Counsel in Canada to the effect that such Holders will not recognize income, gain or loss for Canadian federal or provincial income tax or other tax (including withholding tax) purposes as a result of such defeasance or covenant defeasance, as applicable, and will be subject to Canadian federal and provincial income tax and other tax (including withholding tax) on the same amounts, in the same manner and at the same times as would have been the case if such defeasance or covenant defeasance, as applicable, had not occurred.
(5) The Company shall have delivered to the Trustee an Officer’s Certificate stating that the deposit made by the Company pursuant to its election under Section 302 or Section 303 was not made by the Company with the intent of preferring such Holders over other creditors of the Company or with the intent of defeating, hindering, delaying or defrauding creditors of the Company or others.
(6) The Company shall have delivered to the Trustee (i) an Officer’s Certificate stating that all of the conditions precedent relating to either the defeasance under Section 302 or the covenant defeasance under Section 303 (as the case may be) provided for in this Section 304 have been complied with and (ii) an Opinion of Counsel stating that all of the conditions precedent relating to either the defeasance under Section 302 or the covenant defeasance under Section 303 (as the case may be) provided for in clause (3) (but solely with respect to this Indenture and a list of material agreements or instruments to which the Company is a party or otherwise bound as set forth in an Officer’s Certificate).
SECTION 305. DISCHARGE.
Subject to the last paragraph of this Section 305, the Company (and, as applicable, any Guarantor) shall be discharged from its obligations with respect to, and this Indenture (including the applicable Series Supplement) will be discharged and will cease to be of further effect as to, all outstanding Securities (or all outstanding Securities of one or more particular Series, where the conditions below are satisfied only with respect to such Series), and the Trustee shall, at the request and at the expense of the Company, execute and deliver to the Company such deeds or other instruments as shall be required to evidence such satisfaction and discharge, when either:
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(a) all outstanding Securities or all outstanding Securities of such Series, as applicable (and in each case excluding for greater certainty any lost, stolen or destroyed Securities which have been replaced or paid as provided in Section 208 and Securities for whose payment money or Government Obligations has been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust), have been delivered to the Trustee for cancellation (including on conversion or exchange of such Securities into other securities or property), or
(b) all such Securities not so delivered to the Trustee for cancellation (i) have otherwise become due and payable or have been called for redemption pursuant to the applicable Series Supplement, (ii) will become due and payable within one year or, (iii) if redeemable at the Company’s option pursuant to the applicable Series Supplement, are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company, and, in each case, the Company has irrevocably deposited or caused to be deposited with the Trustee funds in trust in cash in the currency or currencies in which such Securities are payable or Government Obligations, or a combination thereof, in an amount sufficient, in the opinion of a nationally recognized firm of independent public accountants or chartered accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge the principal of, and premium, if any, on such Securities and interest thereon, (x) in the case of Securities that have become due and payable, to the date of such deposit or, (y) in the case of other Securities, to their Stated Maturity or Redemption Date, as the case may be, and
in either case, the Company has paid or caused to be paid all sums payable by it under this Indenture with respect to such Securities.
Notwithstanding the foregoing, and notwithstanding the satisfaction and discharge of this Indenture with respect to a particular Series, (A) the rights of Holders of the Securities of such Series to receive solely from the fund held in trust described in subsection (b) of this Section 305 and as more fully set forth in such Section, payments in respect of the principal of (and premium, if any) and interest on such Securities when such payments are due, (B) the Company’s obligations with respect to such Securities under Section 205, Section 206, Section 208, Section 902, Section 903 and Section 906, (C) the rights, powers, trusts, duties and immunities of the Trustee hereunder and the Company’s obligations in connection therewith, including the Company’s obligations under Section 507 and (D) this Article Three shall survive until the Securities of such Series have been paid in full or, if earlier, the date on which the funds held in trust for such payment are paid to the Company (or discharged from such trust, as applicable) in accordance with the last paragraph of Section 903. Thereafter, only the Company’s obligations in Section 507 shall survive.
SECTION 306. DEPOSITED MONEY TO BE HELD IN TRUST; OTHER MISCELLANEOUS PROVISIONS.
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Subject to the provisions of the last paragraph of Section 903 and the provisions of Section 506, all cash and Government Obligations (including any proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this Section 306, the “Trustee”) in respect of Securities of a Series pursuant to Section 304 or Section 305 shall be held in trust and applied by the Trustee, in accordance with the provisions of this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Holders of such Securities of all sums due and to become due thereon in respect of principal of, and interest or premium, if any, on, such Securities, but such cash and Government Obligations need not be segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee on an after-tax basis against any tax, fee or other charge imposed on or assessed against the Government Obligations deposited pursuant to pursuant to Section 304 or Section 305, as applicable, or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of the applicable Series.
Anything in this Article Three to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon Company Request any cash or Government Obligations held by it as provided in Section 304 or Section 305 which, in the opinion of a nationally recognized firm of independent public accountants or chartered accountants expressed in a written certification thereof delivered to the Trustee (which may be included with the opinion delivered under Section 304.(a)(i)(4) or Section 305, as applicable), are in excess of the amount thereof which would then be required to be deposited to effect the defeasance, covenant defeasance or satisfaction and discharge, as the case may be, of the applicable Securities or Series of Securities.
SECTION 307. NON-PRESENTATION OF SECURITIES.
If a Securityholder shall fail to present a Security for payment prior to or on the date on which the principal, interest and premium thereon or represented thereby becomes payable either on Stated Maturity or on redemption, purchase or otherwise, either: (a) (i) the Company shall be entitled to pay to the Trustee and direct it to set aside for payment as described above; and (ii) in respect of money in the hands of the Trustee that may or should be applied to the payment or redemption of the Securities, the Company shall be entitled to direct the Trustee to set aside the principal, interest and premium, as the case may be, in trust to be paid to such Securityholder upon due presentation or surrender thereof in accordance with the provisions of this Indenture; or (b) the Company may otherwise make provision in form satisfactory to the Trustee in its reasonable discretion for the payment of such amounts, and thereupon the principal, interest and premium payable on or represented by each Security in respect whereof such amounts have been set aside shall be deemed to have been paid and the Securityholder thereof shall thereafter have no right in respect thereof except that of receiving payment of such amounts so set aside by the Trustee (without interest on such money, any such interest being the property of the Company) or provided for by the Company upon due
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presentation and surrender thereof, subject always to the provisions of the last paragraph of Section 903.
SECTION 308. PAYING AGENT AND TRUSTEE TO REPAY MONIES HELD.
Upon the satisfaction and discharge of this Indenture all cash and Government Obligations then held by any Paying Agent of the Securities (other than the Trustee) shall, upon demand by the Company, be repaid to it or paid to the Trustee, and thereupon such Paying Agent shall be released from all further liability with respect to such cash and Government Obligations. Upon satisfaction and discharge of this Indenture all cash and Government Obligations then held by the Trustee in respect of the Securities shall, upon demand by the Company, be repaid to it, and thereupon the Trustee shall be released from all further liability with respect to such cash and Government Obligations.
SECTION 309. REINSTATEMENT.
If the Trustee or any Paying Agent is unable to apply any money or Government Obligations in accordance with Section 306, by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the Company’s obligations under this Indenture and the Securities shall be revived and reinstated as though no cash or Government Obligations had been deposited pursuant to Section 304 or Section 305, as the case may be, until such time as the Trustee or Paying Agent is permitted to apply all the cash or Government Obligations in accordance with Section 306; provided, however, that, if the Company makes any payment of the principal of, or interest, premium, or other amounts, if any, on, any Security following the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of such Securities to receive such payment from the cash and Government Obligations held by the Trustee or Paying Agent.
ARTICLE FOUR
REMEDIES
SECTION 401. EVENTS OF DEFAULT.
Unless otherwise indicated for a particular Series of Securities by the applicable Series Supplement, with respect to each Series of Securities, “Event of Default”, wherever used herein, means any one of the following events and any additional events identified as being an Event of Default in respect of such Series in the related Series Supplement (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):
(a) the Company defaults in the payment of the principal of (or the Redemption Price on) any Security of such Series when it becomes due and payable at its Maturity; or
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(b) the Company defaults in the payment of any interest on any Security of such Series when it becomes due and payable, and continuance of such default for a period of 30 days.
SECTION 402. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default occurs and is continuing with respect to any Series of Securities, then and in every such case the Trustee or the Holders of not less than 25% in aggregate principal amount of the Securities of such Series then Outstanding may declare the principal of all such Securities to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by Holders), and upon any such declaration such principal shall become immediately due and payable.
The Company shall deliver to the Trustee, within 15 days after the Company becoming aware of the occurrence thereof, written notice in the form of an Officer’s Certificate of any Event of Default and any event which with the giving of notice or the lapse of time would become an Event of Default, its status and what action the Company is taking or proposes to take with respect thereto.
At any time after a declaration of acceleration has been made in respect of an Event of Default with respect to any Series of Securities and before a judgment or decree for payment of the money due has been obtained by the Trustee as hereinafter in this Article provided, the Holders of such affected Series may, by a Holder Direction, rescind and annul such declaration and the consequences of such declaration of acceleration. In each such case, the rescission and annulment will be effective on the last date on which each of the following have been satisfied:
(a) written notice of such Holder Direction is delivered to the Company and the Trustee;
(b) the Company has paid or deposited, or caused to be paid or deposited, with the Trustee a sum sufficient to pay
(1) all overdue interest on any Securities of such Series,
(2) all principal, premium and other amounts for any Securities of such Series that have become due otherwise than by such declaration of acceleration and interest thereon at the rate borne by such Securities,
(3) to the extent provided for in the Series Supplement in respect of the Securities of such Series and to the extent that payment of such interest is lawful, interest upon overdue interest at the rate provided for such purpose in such Series Supplement, and
(4) all sums paid or advanced by the Trustee hereunder, the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents, counsel and other advisors (for which the Company is
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to reimburse the Trustee pursuant to Section 507) and any other amounts due to the Trustee pursuant to Section 507; and
(c) all Events of Default with respect to such Series, other than the non-payment of principal of, and interest, premium and other amounts on, Securities of such Series which have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 412.
No such rescission and annulment shall affect any subsequent Event of Default with respect to such Series or impair any right consequent thereon. In addition, no recission or annulment in respect of one Series shall affect any Event of Default with respect to any other Series or impair any right of the Trustee or the Holders of such other Series with respect thereto.
SECTION 403. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE.
The Company covenants that if:
(a) default is made in the payment of any interest on any Security of a Series of Securities when such interest becomes due and payable and such default continues for a period of 30 days, or
(b) default is made in the payment of the principal of (or premium, if any, on) any Security of a Series of Securities at the Maturity thereof,
the Company will, upon demand of the Trustee or, subject to Section 407, upon demand of the Holders of not less than 25% in aggregate principal amount of the Securities of such Series then Outstanding, pay to the Trustee, for the benefit of the Holders of such Securities, the whole amount then due and payable on such Securities for principal (and premium, if any) and interest, with interest upon the overdue principal (and premium, if any) and, to the extent provided for in the Series Supplement for such Securities and to the extent that payment of such interest shall be legally enforceable, upon overdue installments of interest, at the rate provided for such purpose in such Series Supplement; and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding for the collection of the sums so due and unpaid and may prosecute such proceeding to judgment or final decree, and may enforce the same against the Company or any other obligor upon such Securities and collect the moneys adjudged or decreed to be payable in the manner provided by law out of the property of the Company or any other obligor upon such Securities, wherever situated.
If an Event of Default with respect to a Series occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of
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the Holders of the Securities of such Series under this Indenture by such appropriate private or judicial proceedings as the Trustee shall deem most effectual to protect and enforce such rights.
SECTION 404. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the Company or any other obligor upon the Securities or the property of the Company or of such other obligor or their creditors, the Trustee (irrespective of whether the principal of the Securities shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand on the Company for the payment of overdue principal or interest) shall be entitled and empowered, by intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of principal (and premium, if any) and interest owing and unpaid in respect of the Securities and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due to the Trustee pursuant to Section 507) and of the Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same, in its own capacity or through the Paying Agent;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee or the Paying Agent and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due to the Trustee under Section 507.
Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any proposal, plan of reorganization, arrangement, adjustment or composition or other similar arrangement affecting the Securities or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.
SECTION 405. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES.
All rights of action and claims under this Indenture or the Securities may be prosecuted and enforced by the Trustee without the possession of any of the Securities or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name and as trustee of an express
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trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due to the Trustee pursuant to Section 507, be for the ratable benefit of the Holders of the Securities in respect of which such judgment has been recovered.
SECTION 406. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article for a Series of Securities shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on account of principal (or premium, if any) or interest, upon presentation of such Securities and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee with respect to such Series under Section 507 this Indenture or any other applicable provision of the Series Supplement with respect to such Series;
SECOND: To the payment of the amounts then due and unpaid upon such Securities for principal (and premium, if any) and interest, in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Securities for principal (and premium, if any) and interest;
THIRD: To the payment of any other amounts due and payable with respect to such Series; and
FOURTH: The balance, if any, to the Company.
SECTION 407. LIMITATION ON SUITS.
No Holder of any Securities of any Series shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture or such Securities, or for the appointment of a receiver, receiver and manager or trustee in respect of the Company or a Subsidiary of the Company, or to pursue any other remedy hereunder, unless
(a) such Holder has previously given written notice to the Trustee and the Company, or has received written notice from the Trustee, of a continuing Event of Default with respect to such Series;
(b) the Holders of not less than 25% in aggregate principal amount of all of the Outstanding Securities of such Series shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;
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(c) such Holder or Holders have offered to the Trustee reasonable funding and indemnity against the costs, expenses and liabilities to be incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice, request and offer of funding and indemnity has failed to institute any such proceeding; and
(e) during such 60-day period the Trustee has not received a contrary Holder Direction from the Holders of such Series;
it being understood and intended that no one or more Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other Holders (whether of the same Series or any other Series), or to obtain or to seek to obtain priority or preference over any other Holders (whether of the same Series or any other Series) or to enforce any right under this Indenture except in the manner provided in this Indenture and for the equal and ratable benefit of all the Holders.
SECTION 408. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case the Company, the Trustee and the Holders shall, subject to any determination in such proceeding, be restored severally and respectively to their former positions hereunder, and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted.
SECTION 409. RIGHTS AND REMEDIES CUMULATIVE.
Except as provided in Section 208, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
SECTION 410. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any Security to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.
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SECTION 411. CONTROL BY HOLDERS.
Except as otherwise provided in this Indenture, and subject to compliance with the provisions of this Indenture requiring the giving of sufficient funds and indemnity to the Trustee, the Holders of a Series shall have the right, in each case by a Holder Direction, to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, under this Indenture with respect to such Securities; provided that
(a) such Holder Direction shall not be in conflict with any rule of law or with this Indenture or expose the Trustee to personal liability,
(b) subject to the provisions of Trust Indenture Legislation, the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such Holder Direction, and
(c) in the opinion of the Trustee, relying on an Opinion of Counsel, such Holder Direction is not unduly prejudicial to the rights of other Holders of Securities of such Series.
SECTION 412. WAIVER OF PAST DEFAULTS.
The Holders of Outstanding Securities of any Series with respect to which a Default or Event of Default shall have occurred and be continuing may, on behalf of all Holders of such Series, waive any past Default or Event of Default hereunder and its consequences by providing written notice of a Holder Direction to the Trustee, except a Default or Event of Default
(a) in the payment of the principal of (or premium, if any) or interest on any such Security of such Series, or
(b) in respect of a covenant or provision hereof which under Article Eight cannot be modified or amended without the consent of the Holder of each Outstanding Security affected.
Upon any such waiver becoming effective with respect to a Series, such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for purposes of such Series for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other Default or impair any right consequent thereon.
SECTION 413. UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder of any Security by its acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken, suffered or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and
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that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section shall not apply to any suit instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in principal amount of the Outstanding Securities of a Series of Securities, or to any suit instituted by any Holder for the enforcement of the payment of the principal of (or premium, if any) or interest on any Security on or after the respective Stated Maturities expressed in such Security (or, in the case of redemption, on or after the Redemption Date).
ARTICLE FIVE
THE TRUSTEE
SECTION 501. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) In its exercise of the rights and powers and discharge of its duties prescribed or conferred by the terms of this Indenture, the Trustee shall:
(i) act honestly and in good faith with a view to the best interests of the Holders of Securities of each Series in respect of which it acts as Trustee, and
(ii) exercise the care, diligence and skill of a reasonably prudent trustee appointed under an indenture for corporate debt obligations.
(b) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, and act upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture.
(c) No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, its fraud or its own willful misconduct, except that:
(1) this Subsection shall not be construed to limit the effect of Subsections (a) or (b) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it shall be proved that the Trustee was negligent;
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(3) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with a Holder Direction relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture; and
(4) no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section.
SECTION 502. NOTICE OF DEFAULTS.
The Trustee shall, within a reasonable time but not exceeding the lesser of 30 days or one month after the Trustee receives written notice from the Company of the occurrence of an Event of Default with respect to any Series, give notice of such Event of Default (unless such Event of Default shall have been cured or waived) to the Holders of the Securities of such Series.
Where notice of the occurrence of any Event of Default is given by the Trustee under the preceding paragraph and the Default is thereafter cured, the Trustee shall, within a reasonable time but not exceeding 30 days after the Trustee receives written notice from the Company of the curing of the Default, give notice to the Holders of the Securities of each affected Series that the Event of Default is no longer continuing.
SECTION 503. CERTAIN RIGHTS OF TRUSTEE.
Except as otherwise provided in Section 501 and the applicable provisions of Trust Indenture Legislation:
(a) the Trustee may act and rely and shall be protected in acting or refraining from acting, in each case in good faith, upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties that, where applicable, complies with this Indenture and Trust Indenture Legislation;
(b) any request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company Request or Company Order (other than delivery of any Security to the Trustee for authentication and delivery pursuant to Section 204 which shall be sufficiently evidenced as provided therein) and any
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resolution of the Board of Directors may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely and act upon an Officer’s Certificate;
(d) the Trustee may consult with counsel (and any other advisors whose advice is reasonably required by the Trustee for the purpose of determining and discharging its duties and administering the trusts hereunder) and the advice of such counsel or other advisors or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders pursuant to this Indenture, unless such Holders shall have offered to the Trustee reasonable fees and indemnity against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction;
(f) except as provided in clause (a) above, the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney;
(g) the Trustee may employ, retain or appoint such counsel, accountants or other experts or advisors and such agents as it may reasonably require for the proper determination and discharge of its duties hereunder, and may pay reasonable remuneration for all services performed for it (and shall be entitled to receive reasonable remuneration for all services performed by it) in the discharge of the trusts hereof and compensation for all disbursements, costs and expenses made or incurred by it in the discharge of its duties hereunder and in the management of the trusts hereof and shall not be responsible for any act, omission or misconduct on the part of any of them if they have been selected with reasonable care on the part of the Trustee;
(h) in no event shall the Trustee be responsible or liable for special, indirect, or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of business, goodwill, opportunity or profit) irrespective of
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whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action;
(i) the Trustee shall not incur any liability for not performing any act or fulfilling any duty, obligation or responsibility hereunder by reason of any occurrence beyond the control of the Trustee and without its negligence and not avoidable or surmountable by the exercise of its duties in accordance with Section 501 (including but not limited to any act or provision of any present or future law or regulation or governmental authority, any act of God or war, civil unrest, local or national disturbance or disaster, any act of terrorism, cyberterrorism, any epidemic or pandemic, any loss or malfunctions of utilities, computer or communication services or the unavailability of any wire or facsimile or other wire or communication facility).
(j) the Trustee may, before commencing or at any time during the continuance of any such act, action or proceeding, require the Holders of a Series, at whose instance it is acting, to deposit with the Trustee the Securities held by them, for which Securities the Trustee shall issue receipts; and
(k) the Trustee shall not be bound to give any notice or do or take any act, action or proceeding by virtue of the powers conferred on it by this Indenture unless and until it shall have been required so to do under the terms of this Indenture; nor shall the Trustee be required to take notice of any Default or Event of Default hereunder or thereunder unless and until notified in writing of such Default or Event of Default, which notice shall distinctly specify the Default or Event of Default desired to be brought to the attention of the Trustee and in the absence of any such notice the Trustee may for all purposes of this Indenture or any Supplemental Indenture conclusively assume that no Default or Event of Default has been made in the observance or performance of any of the representations, warranties, covenants, agreements or conditions contained herein.
SECTION 504. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
Except with respect to the express representations, warranties and covenants of the Trustee contained herein, the recitals contained herein and in the Securities, except the Trustee’s certificate of authentication, shall be taken as the statements of the Company and the Trustee assumes no responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture or the Securities created hereunder. The Trustee shall not be accountable for the use or application by the Company of Securities or the proceeds thereof.
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SECTION 505. MAY HOLD SECURITIES.
The Trustee, any Paying Agent, any Security Registrar or any other agent of the Company, in its individual or any other capacity, may become the owner or pledgee of Securities, and, subject to Section 513 and Trust Indenture Legislation, may otherwise deal with the Company with the same rights it would have if it were not Trustee, Paying Agent, Security Registrar or such other agent.
SECTION 506. MONEY HELD IN TRUST.
The Trustee may retain any cash balance held in connection with this Indenture and may, but need not, hold the same in its deposit department, the deposit department of one of its Affiliates or the deposit department of a Canadian chartered bank; but the Trustee, its Affiliates or a Canadian chartered bank shall not be liable to account for any profit to the Company or any other person or entity other than at a rate, if any, established from time to time by the Trustee, its Affiliates or a Canadian chartered bank.
SECTION 507. COMPENSATION, REIMBURSEMENT AND INDEMNITY.
The Company agrees:
(a) to pay to the Trustee from time to time reasonable compensation for all services rendered by it hereunder (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust);
(b) except as otherwise expressly provided herein, to reimburse the Trustee upon its request for all reasonable properly documented expenses, disbursements and advances incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the properly documented expenses and disbursements of its agents and counsel (and any other advisors consulted by the Trustee in accordance with Section 503.(d) and Section 503.(g)), except any such expense, disbursement or advance as may be attributable to its or its agents’ negligence, fraud, willful misconduct or bad faith; and
(c) to indemnify the Trustee, and its officers, directors and employees, for, and to hold them harmless against, any loss, liability or expense incurred without negligence, fraud, willful misconduct or bad faith on its part, arising out of or in connection with the acceptance or administration of this trust, including the costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of the Trustee’s powers or duties hereunder.
As security for the performance of the obligations of the Company under this Section, the Trustee shall have a claim and lien prior to the Securities of any Series, pro rata in accordance with their respective principal amounts, upon all property and
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funds held or collected by the Trustee as such, except funds held in trust for the benefit of Holders of particular Securities, including such funds held for the payment of the principal of, or any interest, premium or other amounts payable on, such Securities.
The Company’s payment of indemnity obligations pursuant to this Section 507 shall survive the discharge of this Indenture and the expiry of any trusts created hereby and the resignation or removal of the Trustee.
SECTION 508. CONFLICTING INTERESTS.
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 hereunder and the Trustee’s role in any other capacity. If, at any time, a material conflict of interest exists in the Trustee’s role hereunder and in the Trustee’s role in any other capacity, the Trustee shall, within 90 days after it becomes aware that such a material conflict of interest exists, either eliminate the same or resign from the trusts hereunder by giving notice in writing to the Company at least 21 days prior to such resignation and shall upon such resignation becoming effective be discharged from all further duties and liabilities hereunder. If, despite this Section, the Trustee has a material conflict of interest, the validity and enforceability of this Indenture and the Securities shall not be affected in any manner whatsoever by reason only of the existence of such material conflict of interest.
SECTION 509. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder that is a corporation authorized and qualified to carry on the business of a trust company in the Province of Ontario and every other jurisdiction where such authorization or qualification is necessary to enable it to act as trustee hereunder and authorized to act as a trustee under an indenture under Trust Indenture Legislation. If at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section or Trust Indenture Legislation and other applicable laws, it shall resign immediately in the manner and with the effect hereinafter specified in this Article. Without limitation, it shall not be a conflict of interest for the Trustee to continue to act hereunder in respect of all Securities during any period of time in which there are Securities affected by, and Securities not affected by, a Default or Event of Default.
SECTION 510. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective until the acceptance of appointment by the successor Trustee under Section 511.
(b) The Trustee may resign at any time by giving written notice thereof to the Company. If the instrument of acceptance by a successor Trustee required by Section 511 shall not have been delivered to the resigning Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee may petition
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any court of competent jurisdiction (at the Company’s expense) for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time with respect to the Securities of a Series by a Holder Direction from the Holders of the Outstanding Securities of such Series delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of Section 508 or such other obligations imposed upon it under Trust Indenture Legislation and shall fail to resign after written request therefor by the Company or by any Holder who has been a bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 509, or
(3) the Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent, or a receiver or receiver and manager of the Trustee or of its property shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company may remove the Trustee with respect to all Securities or any applicable Series of Securities, or (ii) subject to Section 413 and Trust Indenture Legislation, in the case of clause (1) above, the Holder of any Security who has been a bona fide Holder of a Security for at least six months, and in the case of clauses (2) and (3) above, the Holder of any Security and any other interested party may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee with respect all Securities of such Series and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause, with respect to one or more Series, the Company shall promptly appoint a successor Trustee or Trustees with respect to the Securities of that or those Series (it being understood that any such successor Trustee may be appointed with respect to the Securities of one or more or all of such Series and that at any time there shall be only one Trustee with respect to the Securities of any particular Series). If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee with respect to any Series is appointed by a Holder Direction and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment in accordance with Section 511, become the successor Trustee with respect to such Series and, to that extent, supersede the successor Trustee appointed by the Company. If no successor Trustee shall have been so appointed with respect to a Series, by the Company or the Holders of the Securities of such Series, and so accepted such appointment, the retiring Trustee
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or the Holder of any Security of such Series who has been a bona fide Holder for at least six months may on behalf of itself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee.
(f) Any new Trustee hereunder appointed under any provision of this Section shall be qualified to act as Trustee hereunder in accordance with Section 509, shall certify that it will not have any material conflict of interest upon becoming Trustee hereunder in accordance with the applicable requirements of Trust Indenture Legislation, and shall accept the trusts herein declared and provided for. On any new appointment, the new Trustee shall be vested with the same powers, rights, duties and responsibilities as if it had been originally named herein as Trustee.
(g) The Company shall give notice of each resignation and each removal of the Trustee with respect to a Series and each appointment of a successor Trustee with respect to a Series to the Holders of Securities of such Series as their names and addresses appear in the Security Register. Each notice shall include the name of the successor Trustee for such Series and the address of its Corporate Trust Office.
SECTION 511. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) Every successor Trustee appointed hereunder shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on request of the Company or the successor Trustee, such retiring Trustee shall, upon payment of all amounts due it under Section 507, execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee, and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder, subject to the claim and lien provided for in Section 507. Upon request of any such successor Trustee, the Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all such rights, powers and trusts.
(b) In case of the appointment hereunder of a successor Trustee with respect to the Securities of one or more (but not all) Series, the Company, the retiring Trustee and each successor Trustee with respect to the Securities of one or more Series shall execute and deliver a Supplemental Indenture wherein each successor Trustee shall accept such appointment and which (i) shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those Series to which the appointment of such successor Trustee relates; (ii) if the retiring Trustee is not
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retiring with respect to all Securities, shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those Series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee; and (iii) shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such Supplemental Indenture shall constitute such Trustees co-trustees of the same trust, that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee and that no Trustee shall be responsible for any notice given to, or received by, or any act or failure to act on the part of any other Trustee hereunder, and upon the execution and delivery of such Supplemental Indenture the resignation or removal of the retiring Trustee shall become effective to the extent provided therein, such retiring Trustee shall with respect to the Securities of that or those Series to which the appointment of such successor Trustee relates have no further responsibility for the exercise of rights and powers or for the performance of the duties and obligations vested in the Trustee under this Indenture other than as hereinafter expressly set forth, and each such successor Trustee without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those Series to which the appointment of such successor Trustee relates; but, on request of the Company or any successor Trustee and upon the payment of any amount to the Trustee under Section 507, such retiring Trustee shall duly assign, transfer and deliver to such successor Trustee, to the extent contemplated by such Supplemental Indenture, the property and money held by such retiring Trustee hereunder with respect to the Securities of that or those Series to which the appointment of such successor Trustee relates.
(c) No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified and eligible under this Article.
SECTION 512. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any Person into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any Person succeeding to all or substantially all of the institutional trust services business of the Trustee, shall be the successor of such Trustee hereunder, provided such Person shall be otherwise qualified and eligible under this Article, without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to the authenticating Trustee may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities.
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SECTION 513. TRUSTEE NOT TO BE APPOINTED RECEIVER.
Neither the Trustee nor any “related person”, as defined in the OBCA, to the Trustee, shall be appointed a receiver or receiver and manager or liquidator of all or any part of the assets or undertaking of the Company.
SECTION 514. AUTHORITY TO CARRY ON BUSINESS
The Trustee represents to the Company that at the date of execution and delivery by it of this Indenture, it is qualified to act as trustee hereunder in accordance with Section 509 but if, notwithstanding the provisions of this Section, it ceases to be qualified to act as trustee hereunder in accordance with Section 509, the validity and enforceability of this Indenture and the Securities issued hereunder shall not be affected in any manner whatsoever by reason only of such event but the Trustee shall, within 90 days after ceasing to be qualified to act as trustee hereunder in accordance with Section 509 either become so qualified or resign in the manner and with the effect specified in Section 510.
SECTION 515. TRUSTEE NOT REQUIRED TO GIVE SECURITY
The Trustee shall not be required to give any bond or security in respect of the execution of the trusts and powers of this Indenture or otherwise in respect of this Indenture.
SECTION 516. ELECTRONIC MEANS
The Trustee shall have the right to accept and act upon instructions, including funds transfer instructions (“Instructions”) given pursuant to this Indenture and any Series Supplement, and delivered using Electronic Means; provided, however, that the Company and/or any Guarantor, as applicable, shall provide to the Trustee an incumbency certificate listing officers of the Company (or any Guarantor, as applicable) with the authority to provide such Instructions (“Instructing Officers”) and containing specimen signatures of such Instructing Officers, which incumbency certificate shall be amended by the Company and/or any Guarantor, as applicable, whenever a person is to be added or deleted from the listing. If the Company and/or any Guarantor, as applicable, elects to give the Trustee Instructions using Electronic Means and the Trustee in its discretion elects to act upon such Instructions, the Trustee’s understanding of such Instructions shall be deemed controlling. The Company and any Guarantor understand and agree that the Trustee cannot determine the identity of the actual sender of such Instructions and that the Trustee shall conclusively presume that directions that purport to have been sent by an Instructing Officer listed on the incumbency certificate provided to the Trustee have been sent by such Instructing Officer. The Company and any Guarantor shall be responsible for ensuring that only Instructing Officers transmit such Instructions to the Trustee and that the Company, any Guarantor and all Instructing Officers are solely responsible to safeguard the use and confidentiality of applicable user and authorization codes, passwords and/or authentication keys. The Trustee shall not be liable for any
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losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such Instructions provided that such reliance of compliance was reasonable in the circumstances. The Company and any Guarantor agree: (i) to assume all risks arising out of the use of Electronic Means to submit Instructions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized Instructions, and the risk of interception and misuse by third parties; (ii) that it is fully informed of the protections and risks associated with the various methods of transmitting Instructions to the Trustee and that there may be more secure methods of transmitting Instructions than the method(s) selected by the Company and/or any Guarantor, as applicable; (iii) that the security procedures (if any) to be followed in connection with its transmission of Instructions provide to it a commercially reasonable degree of protection in light of its particular needs and circumstances; and (iv) to notify the Trustee immediately upon learning of any compromise or unauthorized use of the security procedures. The Company and/or any Guarantor and/or the Holders acknowledge and agree that the Trustee shall have no liability for acting on or in connection with instructions or directions of the Holders provided to the Trustee by the Holders (or their representative participant with a global depository) using Electronic Means.
SECTION 517. TRUSTEE NOT BOUND TO ACT
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 or anti-terrorist 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 or antiterrorist legislation, regulation or guideline, then it shall have the right to resign on 10 days’ written notice to the Company (and during such ten (10) day notice period, the Trustee shall have the right not to act and shall not be liable for refusing to act) provided that: (1) the Trustee’s written notice shall, to the extent permitted by applicable law, describe the circumstances of such noncompliance (for greater certainty, no such description shall be required if it could constitute ‘tipping off’ or any other disclosure or action prohibited by applicable law); and (2) if such circumstances are rectified to the Trustee’s satisfaction within such ten (10) day notice period, then such resignation shall not be effective
SECTION 518. ACCEPTANCE OF TRUSTS.
The Trustee hereby accepts the trusts imposed upon it by this Indenture and covenants and agrees to perform the same as herein expressed.
ARTICLE SIX
HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 601. DISCLOSURE OF NAMES AND ADDRESSES OF HOLDERS.
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(a) A Holder of a particular Series of Securities may, upon payment to the Trustee of a reasonable fee and subject to compliance with any applicable requirement of Trust Indenture Legislation, require the Trustee to furnish within 10 days after receiving the affidavit or statutory declaration referred to below, a list setting out (i) the name and address of every registered Holder of Outstanding Securities of such Series, the aggregate principal amount of Outstanding Securities owned by each registered Holder of such Series and (iii) the aggregate principal amount of Outstanding Securities of such Series, each as shown on the records of the Trustee on the day that the affidavit or statutory declaration is delivered to the Trustee. The affidavit or statutory declaration, as the case may be, shall contain (x) the name and address of the Holder, (y) where the Holder is a corporation, its name and address for service and (z) a statement that the list will not be used except in connection with an effort to influence the voting of the Holders of such Series, an offer to acquire such Securities, or any other matter relating to such Securities or the affairs of the Company. Where the Holder is a corporation, the affidavit or statutory declaration shall be made by a director or officer of the corporation.
(b) Every Holder of Securities, by receiving and holding the same, agrees with the Company and the Trustee that neither the Company nor the Trustee shall be held accountable by reason of the disclosure of such list of the names and addresses of the Holders, regardless of the source from which such information was derived, and that the Trustee shall not be held accountable by reason of delivering any material pursuant to a request made under Trust Indenture Legislation.
(c) Upon the demand of the Trustee, the Company shall furnish the Trustee with the information required to enable the Trustee to comply with obligations in clause (a) of this Section 601; provided, however, that, for so long as the Trustee is the Security Registrar, the Company need not furnish to the Trustee the list referred to therein. The Company shall comply with the terms of such other applicable provisions of Trust Indenture Legislation in respect of the provision of a list of Holders of Securities.
SECTION 602. INTENTIONALLY DELETED.
SECTION 603. REPORTS BY COMPANY.
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The Company shall furnish to the Trustee, within 30 days after the Company files the same with the Ontario Securities Commission or any other securities commission or similar authority in any province or territory of Canada, copies of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as such securities regulatory authority may from time to time by rules and regulations prescribe) which the Company files with such securities regulatory authority pursuant to its continuous disclosure obligations under NI 51-102 or any successor instrument; provided, however, that the Company need not furnish any such information, documents or reports to the extent they are made publicly available on SEDAR or any other website maintained by the securities regulatory authorities in Canada; provided, further, that, notwithstanding the requirements of this Section 603 or any other requirement of this Indenture, the Company need not furnish to the Trustee or the Holders confidential portions of any information, documents or reports filed or furnished with the Ontario Securities Commission, the Securities and Exchange Commission or any other securities regulatory authority on a confidential basis. Notwithstanding the foregoing, it shall not be the responsibility of the Trustee to monitor postings of the Company on SEDAR or any other website referred to in this Section 603, it being understood that, due to the public availability of the information contained on such websites, any Person, including without limitation any Holder, may obtain such information directly from such website.
ARTICLE SEVEN
AMALGAMATION, CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 701. COMPANY MAY AMALGAMATE, ETC., ONLY ON CERTAIN TERMS.
The Company shall not amalgamate or consolidate with or merge with or into any other Person or convey, transfer, lease or otherwise dispose of its properties and assets substantially as an entirety to any Person by liquidation, winding-up or otherwise (in one transaction or a series of related transactions) unless:
(a) either (1) the Company shall be the continuing Person or (2) the Person (if other than the Company) formed by such amalgamation or consolidation or into which the Company is merged or the Person which acquires by conveyance, transfer, lease or other disposition the properties and assets of the Company substantially as an entirety (the “Successor Company”) (i) shall be a corporation, company, partnership or trust organized and validly existing under (A) the federal laws of Canada or any Province thereof or (B) the laws of the United States of America or any State thereof or the District of Columbia and (ii) shall expressly assume, by a Supplemental Indenture, executed and delivered to the Trustee, in form satisfactory to the Trustee, all of the obligations of the Company under the Securities of every Series under this Indenture (provided, however, that the Successor Company shall not be required to execute and deliver such a Supplemental Indenture in the event of an amalgamation of the Company with one or more other Persons, in which (x) the amalgamation is governed by the laws
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of Canada or any province thereof, (y) the Successor Company and the Company are, immediately prior to such amalgamation, organized and existing under the laws of Canada or any province thereof and (z) upon the effectiveness of such amalgamation, the Successor Company shall have become or shall continue to be (as the case may be), by operation of law, liable for the due and punctual payment of the Securities and the due and punctual performance and observance of all other obligations of the Company under the Securities of every Series under this Indenture);
(b) immediately after giving effect to such transaction (and, to the extent applicable in respect of any Series, treating any Debt which becomes an obligation of the Company or a Subsidiary in connection with or as a result of such transaction as having been incurred at the time of such transaction), no Default or Event of Default shall have occurred and be continuing; and
(c) the Company or the Successor Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such amalgamation, consolidation, merger, conveyance, transfer, lease or other disposition and, if a Supplemental Indenture is required in connection with such transaction (or series of transactions), such Supplemental Indenture, comply with this Article and that all conditions precedent herein provided for relating to such transaction have been satisfied.
provided, however, that, the Company need not comply with the foregoing clause (c) in respect of: (A) any consolidation, amalgamation or merger of any Subsidiary with or into the Company; and (B) any consolidation, amalgamation, merger or winding up of the Company with or into an Affiliate of the Company solely for the purpose of reincorporating the Company in Canada or any province or territory thereof or the United States of America, any state or territory thereof or the District of Columbia.
SECTION 702. SUCCESSOR SUBSTITUTED.
Upon any amalgamation, consolidation or merger, or any conveyance, transfer, lease or other disposition of the properties and assets of the Company substantially as an entirety, in accordance with Section 701, the Successor Company shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such Successor Company had been named as the Company herein; and thereafter, except in the case of a lease, the Company shall be discharged from all obligations and covenants under this Indenture and the Securities.
ARTICLE EIGHT
SUPPLEMENTS AND AMENDMENTS TO INDENTURE
SECTION 801. SUPPLEMENTAL INDENTURES AND AMENDMENTS WITHOUT CONSENT OF HOLDERS.
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Without the consent of any Holders, the Company, any Guarantors of the affected Securities, if applicable, and the Trustee, at any time and from time to time, may amend, supplement or modify this Indenture (including any Series Supplement with respect to a Series), the Securities of any Series or any Guarantee, and the Company may direct the Trustee to enter into one or more Supplemental Indentures (including Supplemental Indentures that amend, supplement or modify on or more Series Supplements), which thereafter shall form part hereof, in form satisfactory to the Trustee, for any of the following purposes:
(a) to evidence the succession of another Person to the Company and the assumption by any such successor of the obligations of the Company herein and in the Securities in accordance with Article Seven;
(b) to add to the covenants of the Company for the benefit of the Holders of any Series of Securities, or to Events of Default in respect of a Series of Securities, or to surrender any right or power herein or in the Securities of any Series conferred upon the Company;
(c) to give effect to any Holder Direction or any other direction from Holders permitted to be given under this Indenture, and to any other Act of the Holders made, given or taken by the Holders of one or more Series in accordance with this Indenture;
(d) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more Series, and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 511.(b);
(e) to cure any ambiguity or correct or supplement any provision in this Indenture (including a Supplemental Indenture) or any Guarantee which may be defective or inconsistent with any other provision herein or therein, or to make any other provisions with respect to matters or questions arising under this Indenture (including a Supplemental Indenture) or a Guarantee; provided that, in each case, such provisions shall not adversely affect the interests of the Holders of any Series in any material respect;
(f) to add security to, to further secure, or provide a Guarantee in respect of the Securities of any Series;
(g) to confirm and evidence the release, termination or discharge of any Guarantee or security in respect of the Securities of any Series when such release, termination or discharge, as applicable, is permitted by this Indenture;
(h) reduce the minimum denomination of any Series;
(i) comply with any applicable Trust Indenture Legislation; or
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(j) to make any other modification, amendment or other change to this Indenture (including a Supplemental Indenture), the Securities of a Series or any Guarantee that does not adversely affect the interests of the Holders of the affected Series in any material respect.
In addition, without the consent of any Holders, but subject to the terms and conditions of this Indenture, the Company, any Guarantors of the relevant Securities and the Trustee may, and the Trustee shall, upon a Company Order or when so directed by this Indenture, make, execute, acknowledge and deliver Series Supplements from time to time to establish the form, terms and conditions of a Series of Securities which the Company wishes to issue under this Indenture.
SECTION 802. SUPPLEMENTAL INDENTURES AND CERTAIN AMENDMENTS WITH CONSENT OF HOLDERS.
The Company, any Guarantors of the affected Securities, if applicable, and the Trustee may, and the Trustee shall upon a Company Order or when so directed by this Indenture, enter into one or more Supplemental Indentures for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture (including a Supplemental Indenture) or the Securities of any Series or of waiving or modifying in any manner the rights of the Holders of a Series under this Indenture (including a Supplemental Indenture) or the Securities of such Series upon delivery to the Company and the Trustee of written notice of a Holder Direction from the Holders of Outstanding Securities of each Series that would be affected by such Supplemental Indenture or Supplemental Indentures, as the case may be; provided, however, that no such Supplemental Indenture, amendment or waiver shall, without the consent of the Holder of each Outstanding Security of a Series affected thereby:
(a) change the Stated Maturity of the principal of, or any installment of interest on, any Security, or reduce the principal amount thereof or the rate of interest thereon or reduce the Redemption Price thereof, or change the coin or currency in which the principal of any Security or any premium or the interest thereon is payable, or impair the right to institute suit for the enforcement of any such payment after the Stated Maturity thereof (or, in the case of redemption, on or after the Redemption Date); or
(b) reduce the percentage in principal amount of the Outstanding Securities of such Series, the consent of whose Holders is required for any such Supplemental Indenture, or the consent of whose Holders is required for any waiver (of compliance with certain provisions of this Indenture or certain Defaults hereunder and their consequences) provided for in this Indenture; or
(c) modify any of the provisions of this Section or Section 412, except to increase any such percentage or to provide that certain other provisions of this Indenture (including a Supplemental Indenture) cannot be modified or waived without the consent of the Holder of each Outstanding Security of such Series affected thereby.
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It shall not be necessary for any Act of Holders under this Section to approve the particular form of any proposed Supplemental Indenture, but it shall be sufficient if such Act shall approve the substance thereof. Notwithstanding anything to the contrary in this Indenture, any action that is permitted or authorized to be taken by a Holder Direction shall be binding upon all Holders of the applicable Series regardless of whether a particular Holder shall have approved such Holder Direction and, except as otherwise provided in such Holder Direction, regardless of whether the Holders of any other affected Series shall have approved such action in respect of such other affected Series under this Section.
SECTION 803. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by, any Supplemental Indenture permitted by this Article or the modifications thereby of the trusts created by this Indenture, the Trustee shall be entitled to receive, and (subject to Trust Indenture Legislation and Section 503 hereof) shall be fully protected in acting and relying upon, an Opinion of Counsel stating that the execution of such Supplemental Indenture is authorized or permitted by this Indenture. The Trustee may, but shall not be obligated to, enter into any such Supplemental Indenture which adversely affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise.
SECTION 804. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any Supplemental Indenture under this Article, this Indenture shall be modified in accordance therewith, and such Supplemental Indenture shall form a part of this Indenture for all purposes; and every Holder of Securities of the applicable Series theretofore or thereafter authenticated and delivered hereunder shall be bound thereby.
SECTION 805. CONFORMITY WITH THE TRUST INDENTURE LEGISLATION.
Every Supplemental Indenture executed pursuant to this Article shall conform to the applicable requirements, if any, of Trust Indenture Legislation as then in effect.
SECTION 806. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities authenticated and delivered after the execution of any Supplemental Indenture pursuant to this Article may, and shall if required by the Trustee or the Company, bear a notation in form approved by the Trustee as to any matter provided for in such Supplemental Indenture. If the Company shall so determine, new Securities so modified as to conform to any such Supplemental Indenture may be prepared and executed by the Company and, upon Company Order, authenticated and delivered by the Trustee in exchange for Outstanding Securities.
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ARTICLE NINE
COVENANTS
SECTION 901. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company covenants and agrees for the benefit of the Holders of each Series that it will duly and punctually pay the principal of (and premium, if any) and interest on the Securities of such Series in accordance with the terms of such Securities and this Indenture.
SECTION 902. MAINTENANCE OF OFFICE OR AGENCY.
For so long as any Securities issued under this Indenture remain outstanding, the Company will maintain, or cause the related Security Registrar or related Paying Agent, as the case may be, to maintain, an office or agency at each Place of Payment for a Series where Securities of such Series may be presented or surrendered for payment and where such Securities may be surrendered for registration of transfer or exchange. The Corporate Trust Office of the Trustee shall be such office or agency of the Company, unless the Company shall designate and maintain some other office or agency for one or more of such purposes. The Company will give prompt written notice to the Trustee of any change in the location of any such office or agency. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices and demands.
The Company may from time to time designate one or more other offices or agencies (in or outside of the Place of Payment) where the Securities of one or more Series may be presented or surrendered for any or all such purposes, and may from time to time rescind such designation; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in the Place of Payment for each Series for such purposes. The Company will give prompt written notice to the Trustee of any such designation or rescission and any change in the location of any such office or agency.
SECTION 903. MONEY FOR SECURITY PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent, it will, on or before each due date of the principal of (and premium, if any) or interest on any of the Securities, segregate and hold in trust for the benefit of the Persons entitled thereto a sum sufficient to pay the principal (and premium, if any) or interest so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided, and will promptly notify the Trustee of its action or failure so to act.
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Whenever the Company shall have one or more Paying Agents for the Securities, it will, on or before each due date of the principal of (and premium, if any) or interest on any Securities, deposit with a Paying Agent a sum or, to the extent specified in the applicable Series Supplement, other consideration sufficient to pay the principal (and premium, if any) or interest so becoming due, such sum or other consideration to be held in trust for the benefit of the Persons entitled to such principal, premium or interest and (unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee of such action or any failure so to act.
The Company will cause each Paying Agent other than the Trustee to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section, that such Paying Agent will:
(a) hold all sums held by it for the payment of the principal of (and premium, if any) and interest on Securities in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided;
(b) give the Trustee notice of any default by the Company (or any other obligor upon the Securities) in the making of any payment of principal (and premium, if any) or interest; and
(c) at any time during the continuance of any such default, upon the written request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to pay, to the Trustee all sums and other consideration held in trust by the Company or such Paying Agent, such sums and other consideration to be held by the Trustee upon the same trusts as those upon which such sums and other consideration were held by the Company or such Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such sums and other consideration.
Except as otherwise provided in the Series Supplement, and subject to Trust Indenture Legislation and other applicable laws, any cash or Government Obligations deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal of (and premium, if any) or interest on any Security and remaining unclaimed for two years (or such shorter period as may be specified in the applicable abandoned property statutes) after such principal (and premium, if any) or interest has become due and payable shall be paid to the Company on Company Request, or (if then held by the Company) shall be discharged from such trust; and thereafter, the Holder of such Security shall have no rights in respect of such Security except to obtain payment of such cash or Government Obligations (without interest thereon) from the Company (up to such time as the right to proceed against the Company for recovery of such cash or Government Obligations has become statute barred under the
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laws of the Province of Ontario), as an unsecured general creditor of the Company, and all liability of the Trustee or such Paying Agent with respect to such cash or Government Obligations, and all liability of the Company as trustee thereof, shall thereupon cease.
SECTION 904. CORPORATE EXISTENCE.
Subject to Article Seven and any other applicable provisions of this Indenture, for so long as any Securities issued under this Indenture remain Outstanding, the Company shall at all times maintain its corporate (or its applicable equivalent) existence; provided, however, that nothing in this Indenture shall require the Company to maintain such corporate or equivalent existence if the Company determines in good faith that maintenance thereof is no longer desirable in the conduct of the business of the Company and its Restricted Subsidiaries taken as a whole.
SECTION 905. PROVISION OF FINANCIAL INFORMATION.
The Company shall deliver to the Trustee (i) within 120 days after the end of each fiscal year ended after the Execution Date, audited consolidated financial statements of the Company for such fiscal year, and (ii) within 60 days after the end of each of the first three fiscal quarters of each fiscal year after the Execution Date, unaudited interim consolidated financial statements of the Company for such fiscal quarter. The Company shall be deemed to have delivered financial statements in compliance with its obligations under this Section 905, and need not otherwise deliver such financial statements to the Trustee, if such financial statements are made publicly available on SEDAR within the prescribed time. Notwithstanding the foregoing, it shall not be the responsibility of the Trustee to monitor postings of the Company on SEDAR, it being understood that, due to the public availability of the information contained on SEDAR, any Person, including without limitation any Holder, may obtain the aforementioned financial statements directly from SEDAR.
The obligations of the Company set forth in the preceding paragraph of this Section 905 will be deemed satisfied if any parent entity of the Company has delivered to the Trustee (including by making such financial statements publicly available on SEDAR) the consolidated financial statements required in the preceding paragraph of this Section 905, that would otherwise be required to be provided in respect of the Company, with respect to such parent entity; provided that such obligations will only be deemed to be satisfied if, and for so long as, such parent entity furnishes to the Trustee (either in or with a copy of such financial statements) “summary financial information” as defined in section 13.4 of NI 51-102 (or substantially equivalent financial information provided for in any successor provision thereto in NI 51-102 or any successor instrument) for the parent entity for the periods covered by such financial statements with a separate column for (i) the parent entity, (ii) the Company, (iii) all Guarantors (on a combined basis), (iv) any other subsidiaries of the parent entity (on a combined basis), (v) consolidating adjustments and (vi) total consolidated amounts.
SECTION 906. STATEMENT AS TO COMPLIANCE.
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The Company will deliver to the Trustee, within 120 days after the end of each fiscal year ending after the Execution Date (or within such shorter time period as may be required by Trust Indenture Legislation), a written statement signed by an Authorized Officer or director of the Company stating that: (a) a review of the activities of the Company during such year and of performance under this Indenture has been made under his or her supervision; and (b) to the best of his or her knowledge, based on such review, the Company is in compliance with all of the conditions and covenants under this Indenture that, if not complied with, would constitute a Default or, if the Company has not complied with one or more of such requirements, giving the particulars of its failure to comply
SECTION 907. WAIVER OF CERTAIN COVENANTS.
Subject to Section 412 and Section 802, the Company and any Guarantor may omit in any particular instance to comply with any covenant or other provision set forth in this Indenture or a Guarantee or any and all additional or different covenants or provisions provided in the applicable Series Supplement (except as otherwise indicated therein), in each case, with respect to any Series of Securities to which such covenant or provision applies, including any existing Default or Event of Default and its consequences under this Indenture, such Series Supplement and any Guarantee, if, before or after the time for such compliance, the Holders of the Outstanding Securities of such affected Series shall, by Holder Direction, waive such compliance in such instance with such covenant or provision, but no such waiver shall extend to or affect such covenant or provision except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Company and, if applicable, any Guarantors and the duties of the Trustee in respect of any such covenant or provision shall remain in full force and effect for purposes of such Series.
ARTICLE TEN
REDEMPTION OF SECURITIES
SECTION 1001. RIGHT OF REDEMPTION.
The Securities of a Series may be redeemed, at the election of the Company, as a whole or from time to time in part, at any time, at the Redemption Price and subject to the other terms and conditions, if any, specified in such Securities or the Series Supplement in respect of the Securities of such Series.
SECTION 1002. APPLICABILITY OF ARTICLE.
Redemption of Securities at the election of the Company or otherwise, as permitted or required by any provision of this Indenture or any Series Supplement in respect of such Securities, shall be made in accordance with such provision and this Article; provided, however, that if any provision of any such Series Supplement shall conflict with any provision of this Article, the provision of such Series Supplement shall govern.
SECTION 1003. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
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The election of the Company to redeem any Securities pursuant to Section 1001 shall be evidenced by a Company Order or a Board Resolution. In case of any redemption at the election of the Company, the Company shall notify the Trustee, at least three Business Days (unless a shorter period shall be agreed to in writing by the Trustee, acting reasonably) before notice of redemption is to be sent or caused to be sent to Holders pursuant to Section 1005, of the applicable Series of Securities to be redeemed and of the principal amount of such Securities to be redeemed.
SECTION 1004. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.
In the event that less than all of the Securities of any Series for the time being outstanding are at any time to be redeemed, the Securities so to be redeemed will be selected on a pro rata basis and, where applicable, in accordance with the procedures of the Depositary. Securities and portions thereof selected shall be in amounts of any integral multiple of $1,000, except that if all of the Securities of the applicable Series of a Holder are to be redeemed, the entire outstanding amount of Securities of such Series held by such Holder, even if not a multiple of $1,000 or even if the Securities of such Series are of a principal amount of $1,000 or less, shall be redeemed in full. No Securities of a principal amount of $1,000 or less shall be redeemed in part.
Any Security which is to be redeemed only in part shall be surrendered at the office or agency of the Company maintained for such purpose pursuant to Section 902 (with, if the Company, the Security Registrar or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company, the Security Registrar or the Trustee duly executed by, the Holder thereof or its attorney duly authorized in writing). Upon the proper surrender of any such Security for redemption, the Company shall execute and the Trustee shall certify and deliver without charge to the Holder or upon his or her order one or more new Securities of the same Series, maturity and rate of interest for the unredeemed part of the principal amount of the Security or Securities so surrendered; provided, however, that, in the case of a Global Security, an appropriate notation may instead be made on such Security to decrease the principal amount thereof to an amount equal to the unredeemed portion thereof.
For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to redemption of a “Security” or “Securities” shall relate, in the case of any Security or Securities, as applicable, redeemed or to be redeemed only in part, to the portion of the principal amount of such Security or Securities which has been or is to be redeemed.
SECTION 1005. NOTICE OF REDEMPTION.
Notice of intention to redeem any Securities shall be delivered by or on behalf of the Company to the Holders of the Securities that are to be redeemed not more than 60 days and not less than 10 days prior to the Redemption Date, in the manner provided in Section 107.
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Every notice of redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price or, where applicable only, the date upon which the Redemption Price shall be calculated in connection with the Securities called for redemption;
(c) the Series called for redemption and, if less than all Outstanding Securities of a Series are to be redeemed, the identification (and, in the case of a Security to be redeemed in part, the principal amount) of the particular Securities to be redeemed;
(d) that, subject to the satisfaction or waiver of any condition precedent to the redemption specified in such notice, the Redemption Price will become due and payable upon each such Security or portion thereof on the Redemption Date , and that, unless the Company defaults in making such redemption payment, interest thereon, if any, shall cease to accrue on and after the Redemption Date;
(e) the place or places where such Securities are to be surrendered for payment of the Redemption Price; and
(f) any conditions to the redemption.
Notice of redemption of Securities to be redeemed at the election of the Company shall be given by the Company or, at its request, by the Trustee in the name and at the expense of the Company.
Any redemption or notice of any redemption may, at the Company’s discretion, be subject to one or more conditions precedent, including, but not limited to, completion of an equity or other securities offering, an incurrence of indebtedness or other financing, or any other corporate transaction or event. Notice of any redemption in respect thereof may, at the Company’s discretion, be given prior to the completion of one or more of the transactions or events upon which the redemption is conditioned and such redemption may be partial as a result of only some of the conditions being satisfied. If such redemption is subject to the satisfaction of one or more conditions precedent, the related notice shall describe each such condition, and if applicable, state that, in the Company’s discretion, such redemption may not occur and such notice may be rescinded in the event that any or all such conditions shall not have been satisfied or waived by the Redemption Date. In addition, the Company may provide in such notice that payment of the Redemption Price and other amounts owing for the redemption of any Securities and performance of the Company’s obligations with respect to such redemption may be performed by another Person.
In the event that the condition(s) of any redemption that is conditional are not satisfied or waived by the Company in its sole discretion on or prior to the Redemption Date therefor, the redemption shall be rescinded and notice thereof shall be delivered by or on behalf of the Company to the Holders of the Securities that were to
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have been redeemed promptly thereafter (but in any event no later than the Business Day after the Redemption Date), in the manner in which the notice of redemption was delivered, that such condition(s) were not satisfied or waived and such redemption has been rescinded, and the Trustee shall promptly return to the Holders thereof any Securities which had been surrendered for payment upon such redemption. For the avoidance of doubt, the Trustee shall have no responsibility for determining whether or not a condition set forth in such notice of redemption is satisfied, and shall be entitled to conclusively rely upon the Company’s determination regarding the satisfaction or waiver thereof.
Any inadvertent defect in a notice of redemption, including an inadvertent failure to deliver such notice, to any Holder whose Securities are selected for redemption will not impair or affect the validity of the redemption of any the Securities of any other Holder that are to be redeemed.
SECTION 1006. DEPOSIT OF REDEMPTION PRICE.
On or prior to any Redemption Date, the Company shall deposit or cause to be deposited with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 903) an amount of money sufficient to pay the Redemption Price for all of the Securities which are to be redeemed on that date.
SECTION 1007. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been delivered as specified in Section 1005, subject to the satisfaction or waiver of any terms or conditions of such redemption or the rescission of such notice of redemption permitted in Section 1005 or otherwise permitted by the Supplemental Indenture in respect of the Securities of the Series to be redeemed, all the Securities so called for redemption shall thereupon be and become due and payable at the Redemption Price and on the Redemption Date specified in such notice, in the same manner and with the same effect as if such date was the Stated Maturity for the payment of principal for such Securities, anything therein or herein to the contrary notwithstanding, and on and after such Redemption Date (unless the Company shall default in the payment of the Redemption Price) such Securities shall not be considered as outstanding hereunder and interest upon such Securities shall cease to accrue. Upon surrender of any such Security for redemption in accordance with said notice, such Security shall be paid by the Company at the Redemption Price together with accrued interest to the Redemption Date; provided, however, that installments of interest whose Stated Maturity is on or prior to the Redemption Date shall be payable to the Holders of such Securities, or one or more Predecessor Securities, registered as such on the relevant Regular Record Dates according to the terms and the provisions of Section 209.
If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal thereof (and premium, if any, thereon) shall, until paid, bear interest from the Redemption Date at the rate borne by such Security.
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SECTION 1008. SECURITIES REDEEMED IN PART.
Any Security which is to be redeemed only in part shall be surrendered at the office or agency of the Company maintained for such purpose pursuant to Section 902 (with, if the Company, the Security Registrar or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company, the Security Registrar or the Trustee duly executed by, the Holder thereof or its attorney duly authorized in writing), and the Company shall execute, and, upon Company Order, the Trustee shall authenticate and deliver to the Holder of such Security, without service charge, a replacement Security or Securities, of any authorized denomination as requested by such Holder in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Security so surrendered.
SECTION 1009. SECURITIES PURCHASED IN PART.
Any Security that is to be purchased only in part shall be surrendered to the Paying Agent at the office of the Paying Agent or to the office or agency referred to in Section 902 (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or such Holder’s attorney duly authorized in writing) and the Company shall execute and, upon Company Order, the Trustee shall authenticate and deliver to the Holder of such Security, without service charge, a replacement Security or Securities, of any authorized denomination as requested by such Holder in an aggregate principal amount equal to, and in exchange for, the principal amount of the Security so surrendered that is not purchased.
SECTION 1010. ACQUISITION BY OTHER MEANS.
For avoidance of doubt, notwithstanding any other provision of this Indenture, the Company may, at its option, at any time and from time to time, purchase or otherwise acquire all or any of the Securities of any Series by means other than a redemption, including (i) in the market (which shall include purchases from or through an investment dealer, a Clearing Agency Participant or a firm holding membership on a recognized stock exchange), (ii) by invitation for tenders, or (iii) by private contract, in each case, at any price or prices as the Company may determine in its sole discretion.
ARTICLE ELEVEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1101. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
A meeting of Holders of Securities of any Series may be called at any time and from time to time pursuant to this Article Eleven to make, give or take any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be made, given or taken by Holders of Securities of such Series.
SECTION 1102. CALL, NOTICE AND PLACE OF MEETINGS.
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(a) Upon receiving the necessary funding and indemnity required by Section 503.(e), the Trustee may at any time call a meeting of Holders of Securities of any Series for any purpose specified in Section 1101, to be held at such time and at such place in Toronto, Ontario as the Trustee shall determine. Notice of every meeting of Holders of Securities of any Series, setting forth the time and the place of such meeting and in general terms the action proposed to be taken at such meeting, shall be given, in the manner provided in Section 107, not less than 21 nor more than 180 days prior to the date fixed for the meeting; provided that the Trustee shall have no obligation to call any meeting if it is not funded and indemnified to its reasonable satisfaction against its costs, expenses and liabilities associated therewith.
(b) In case at any time the Company, pursuant to a Company Order or a Board Resolution, or the Holders of at least 25% in principal amount of the Outstanding Securities of any Series shall have requested the Trustee to call a meeting of the Holders of Securities of such Series for any purpose specified in Section 1101, by written request setting forth in reasonable detail the action proposed to be taken at the meeting, and the Trustee shall not thereafter proceed to cause the meeting to be held as provided herein, then the Company or the Holders of Securities of such Series in the amount above specified, as the case may be, may determine the time and the place in Toronto, Ontario for such meeting and may call such meeting for such purposes by giving notice thereof as provided in paragraph (a) of this Section.
SECTION 1103. PERSONS ENTITLED TO VOTE AT MEETINGS.
To be entitled to vote at any meeting of Holders of Securities of any Series, a Person shall be (a) a Holder of one or more Outstanding Securities of such Series; or (b) a Person appointed by an instrument in writing as proxy for a Holder or Holders of one or more Outstanding Securities of such Series by such Holder or Holders. The only Persons who shall be entitled to be present or to speak at any meeting of Holders of Securities of any Series 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.
SECTION 1104. QUORUM; ACTION.
The Persons entitled to vote a majority in principal amount of the Outstanding Securities of a Series shall constitute a quorum for a meeting of Holders of Securities of such Series. 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 Securities of such Series, be dissolved. In any other case, the meeting may be adjourned for a period of not less than 10 days as determined by the chair of the meeting prior to the adjournment of such meeting. In the absence of a quorum at any such adjourned meeting, such adjourned meeting may be further adjourned for a period of not less than 10 days as determined by the chair of the meeting prior to the adjournment of such adjourned meeting. Notice of the reconvening of any adjourned meeting shall be
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given as provided in Section 1102.(a), except that such notice need be given only once not less than five days prior to the date on which the meeting is scheduled to be reconvened. Notice of the reconvening of an adjourned meeting shall state expressly the percentage, as provided above, of the principal amount of the Outstanding Securities of such Series which shall constitute a quorum.
Any resolution passed or decision taken at any meeting of Holders of Securities of any Series duly held in accordance with this Section shall be binding on all the Holders of Securities of such Series, whether or not present or represented at the meeting.
SECTION 1105. DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT OF MEETINGS.
(a) Notwithstanding any other provisions of this Indenture, the Trustee may make such reasonable regulations as it may deem advisable for any meeting of Holders of Securities of any Series in regard to proof of the holding of Securities of such Series and of the appointment of proxies and in regard to the appointment and duties of inspectors of votes, 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 shall deem appropriate. Except as otherwise permitted or required by any such regulations, the holding of Securities shall be proved in the manner specified in Section 105 and the appointment of any proxy shall be proved in the manner specified in Section 105. Such regulations may provide that written instruments appointing proxies, regular on their face, may be presumed valid and genuine without the proof specified in Section 105 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a temporary chair of the meeting, unless the meeting shall have been called by the Company or by Holders of Securities as provided in Section 1102.(b), in which case the Company or the Holders of Securities of the Series calling the meeting, as the case may be, shall in like manner appoint a temporary chair. A permanent chair and a permanent secretary of the meeting shall be elected by vote of the Persons entitled to vote a majority in principal amount of the Outstanding Securities of such Series as are represented in person or by proxy at the meeting.
(c) At any meeting, each Holder of a Security of such Series or a proxy thereof shall be entitled to one vote for each $1,000 principal amount of Securities held or represented by such Holder; provided, however, that no vote shall be cast or counted at any meeting in respect of any Security challenged as not Outstanding and ruled by the chair of the meeting to be not Outstanding. The chair of the meeting shall have no right to vote, except as a Holder of a Security of such Series or a proxy thereof.
(d) Any meeting of Holders of Securities of any Series duly called pursuant to Section 1102 at which a quorum is present may be adjourned from
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time to time by Persons entitled to vote a majority in principal amount of the Outstanding Securities of such Series represented in person or by proxy at the meeting; and the meeting may be held as so adjourned without further notice.
SECTION 1106. COUNTING VOTES AND RECORDING ACTION OF MEETINGS.
The vote upon any resolution submitted to any meeting of Holders of Securities of any Series shall be by written ballots on which shall be subscribed the signatures of the Holders of Securities of such Series or of their representatives by proxy and the principal amounts and, if appropriate, the serial numbers of the Outstanding Securities of such Series held or represented by them. The permanent chair of the meeting shall appoint two inspectors of votes who shall count all votes cast at the meeting for or against any resolution and who shall make and file with the secretary of the meeting their verified written reports in triplicate of all votes cast at the meeting. A record, at least in triplicate, of the proceedings of each meeting of Holders of Securities of any Series shall be prepared by the secretary of the meeting and there shall be attached to said record the original reports of the inspectors of votes on any vote by ballot taken thereat 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 1102 and, if applicable, Section 1104. Each copy shall be signed and verified by the affidavits of the permanent chair 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed all as of the day and year first above written.
| ROGERS COMMUNICATIONS INC. | ||
| By | [REDACTED] | |
| Name: [REDACTED] | ||
| Title: [REDACTED] | ||
| By | [REDACTED] | |
| Name: [REDACTED] | ||
| Title: [REDACTED] |
| BNY TRUST COMPANY OF CANADA, as Trustee | ||
| By | “Bhawna Dhayal” | |
| Name: Bhawna Dhayal | ||
| Title: Vice-President | ||
Exhibit 99.2
ROGERS COMMUNICATIONS INC.,
as issuer of the Notes,
and
BNY TRUST COMPANY OF CANADA
as Trustee
FIRST SUPPLEMENTAL INDENTURE
Dated as of December 17, 2021
to
INDENTURE
Dated as of December 17, 2021
5.00% Fixed-to-Fixed Rate Subordinated Notes due 2081
TABLE OF CONTENTS
| PAGE | ||||
| ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION |
1 | |||
| SECTION 101. DEFINITIONS |
1 | |||
| SECTION 102. OTHER DEFINITIONS |
5 | |||
| SECTION 103. EFFECT OF SUPPLEMENTAL INDENTURE |
6 | |||
| SECTION 104. INDENTURE REMAINS IN FULL FORCE AND EFFECT |
6 | |||
| SECTION 105. INCORPORATION OF INDENTURE |
6 | |||
| SECTION 106. COUNTERPARTS |
6 | |||
| SECTION 107. EFFECT OF HEADINGS AND TABLE OF CONTENTS |
7 | |||
| SECTION 108. SUCCESSORS AND ASSIGNS |
7 | |||
| SECTION 109. SEPARABILITY CLAUSE |
7 | |||
| SECTION 110. BENEFITS OF SUPPLEMENTAL INDENTURE |
7 | |||
| SECTION 111. GOVERNING LAW |
7 | |||
| ARTICLE TWO FORM OF THE NOTES |
7 | |||
| SECTION 201. FORMS GENERALLY |
7 | |||
| SECTION 202. FORM OF NOTE |
8 | |||
| SECTION 203. SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY |
12 | |||
| ARTICLE THREE THE NOTES |
13 | |||
| SECTION 301. TITLE AND TERMS |
13 | |||
| SECTION 302. DENOMINATIONS |
14 | |||
| SECTION 303. DEFERRAL RIGHT |
14 | |||
| SECTION 304. CALCULATION AGENT |
14 | |||
| ARTICLE FOUR REDEMPTION OF THE NOTES |
15 | |||
| SECTION 401. OPTIONAL REDEMPTION |
15 | |||
| SECTION 402. REDEMPTION ON TAX EVENT |
15 | |||
| SECTION 403. REDEMPTION ON RATING EVENT |
15 | |||
| ARTICLE FIVE ADDITIONAL COVENANTS |
16 | |||
| SECTION 501. DIVIDEND STOPPER UNDERTAKING |
16 | |||
| SECTION 502. OTHER PREFERRED SHARES |
17 | |||
| SECTION 503. WAIVER OF CERTAIN COVENANTS |
17 | |||
| ARTICLE SIX AUTOMATIC CONVERSION |
17 | |||
| SECTION 601. AUTOMATIC CONVERSION |
17 | |||
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| SECTION 602. RIGHT NOT TO DELIVER THE CONVERSION PREFERRED SHARES |
19 | |||
| ARTICLE SEVEN SUBORDINATION OF NOTES |
19 | |||
| SECTION 701. NOTES SUBORDINATED TO SENIOR INDEBTEDNESS |
19 | |||
| SECTION 702. DISPUTES WITH HOLDER OF CERTAIN SENIOR INDEBTEDNESS |
21 | |||
| SECTION 703. SUBROGATION |
21 | |||
| SECTION 704. RELATIVE RIGHTS NOT OTHERWISE IMPAIRED |
22 | |||
| SECTION 705. EFFECTUATION OF SUBORDINATION BY TRUSTEE; WAIVER OF CONFLICTS |
22 | |||
| SECTION 706. KNOWLEDGE OF TRUSTEE |
23 | |||
| SECTION 707. TRUSTEE MAY HOLD SENIOR INDEBTEDNESS |
23 | |||
| SECTION 708. RIGHTS OF SENIOR INDEBTEDNESS NOT IMPAIRED |
23 | |||
| SECTION 709. ARTICLE APPLICABLE TO PAYING AGENTS |
24 | |||
| SECTION 710. TRUSTEE COMPENSATION NOT PREJUDICED |
24 | |||
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FIRST SUPPLEMENTAL INDENTURE dated as of December 17, 2021 (this “Supplemental Indenture”), between Rogers Communications Inc., a corporation organized under the laws of the Province of British Columbia (hereinafter called the “Company”) and BNY Trust Company of Canada, a trust company existing and licensed under the federal laws of Canada, as trustee (hereinafter called the “Trustee”).
WHEREAS, the Company and the Trustee are parties to an indenture dated as of December 17, 2021 (as the same may from time to time be supplemented or amended (other than by a Series Supplement), the “Indenture”);
WHEREAS, Article Two and Section 801 of the Indenture provide, among other things, that, without the consent of any Holders, the Company and the Trustee may enter into a supplement to the Indenture for the purposes of establishing the form, terms and conditions applicable to the Securities of any Series which the Company wishes to issue under the Indenture;
WHEREAS, the Company desires to establish the form, terms and conditions of a Series of Securities and has requested the Trustee to enter into this Supplemental Indenture for such purpose;
WHEREAS, the Trustee has received an Officer’s Certificate and an Opinion of Counsel of the Company, in each case complying with Section 103 of the Indenture; and
WHEREAS, the Board of Directors has duly authorized the establishment of the 5.00% Fixed-to-Fixed Rate Subordinated Notes due 2081 of the Company (the “Notes”) with the form, terms and conditions as hereinafter set forth;
AND WHEREAS, the preceding recitals are made as statements of facts by the Company and not by the Trustee
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are acknowledged by the parties hereto, the parties hereto agree, for the equal and proportionate benefit of all Holders of the Notes, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. DEFINITIONS.
Capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture.
“Automatic Conversion Event” means any one of the following events : (i) the making by the Company of a general assignment for the benefit of its creditors or a proposal (or the filing of a notice of its intention to do so) pursuant to or under or within the meaning of any Bankruptcy Law; (ii) any proceeding instituted by the Company seeking a Bankruptcy Order in circumstances where the Company is adjudged a bankrupt
or insolvent; (iii) a Custodian is appointed over the property and assets of the Company or for any substantial part of its property and assets by a court of competent jurisdiction in circumstances where the Company is adjudged as bankrupt or insolvent under any Bankruptcy Law; or (iv) any proceeding is instituted against the Company seeking a Bankruptcy Order in circumstances where the Company is adjudged a bankrupt or insolvent under any Bankruptcy Law, and either such proceeding has not been stayed or dismissed within 60 days of the institution of any such proceeding or the actions sought in such proceedings occur, including the entry of an order for relief against the Company or the appointment of Custodian for it or for any substantial part of its property and assets.
“Bankruptcy Law” means the Bankruptcy and Insolvency Act (Canada), the Companies’ Creditors Arrangement Act (Canada) or any other similar applicable Canadian federal or provincial law relating to bankruptcy or insolvency.
“Bankruptcy Order” means any order or decision (x) to adjudicate the Company as bankrupt (including any voluntary assignment in bankruptcy) or insolvent or, (y) where the Company is insolvent, providing for the liquidation, winding up, dissolution, reorganization of the Company , or the arrangement, adjustment, protection, relief or compromise of its debts, pursuant to or under or within the meaning of any Bankruptcy Law, or (z) providing for the appointment of a Custodian for the property and assets of the Company or any substantial part of its property and assets.
“Bloomberg Screen GCAN5YR Page” means the display designated as page “GCAN5YR<INDEX>” on the Bloomberg Financial L.P. service (or such other page as may replace the GCAN5YR page on that service for purposes of displaying Government of Canada bond yields).
“Calculation Agent” means any Person, which may be the Company or any of the Company’s Affiliates, appointed by the Company from time to time to act as calculation agent with respect to the Notes.
“Company” means the Person named as the “Company” in the first paragraph of this Supplemental Indenture, until a successor Person shall have become such pursuant to the applicable provisions of the Indenture, and thereafter “Company” shall mean such successor Person. To the extent necessary to comply with the requirements of the provisions of the Trust Indenture Legislation as they are applicable to the Company, the term “Company” shall include any other obligor with respect to the Notes for the purposes of complying with such provisions.
“Company’s Articles” means the Articles of the Company or, in the case of a Successor Company, the articles of such Successor Company or any equivalent constating documents applicable to such Successor Company in the applicable jurisdiction by which it is organized.
“Conversion Preferred Shares” means the series of Preferred Shares in the capital of the Company, designated as the Series I Conversion Preferred Shares.
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“Custodian” means any receiver, interim receiver, receiver and manager, trustee in bankruptcy, liquidator, sequestrator or similar official under any Bankruptcy Law or any other person with like powers.
“Designated Rating Agencies” means S&P, Moody’s and Fitch, and each of such Designated Rating Agencies is referred to individually as a “Designated Rating Agency”.
“Final Interest Reset Date” means December 17, 2076.
“Fitch” means Fitch Ratings Ltd. or any successor to the rating agency business thereof.
“5-Year Government of Canada Yield” on any date means the bid yield to maturity on such date (assuming semi-annual compounding) of a Canadian dollar denominated non- callable Government of Canada bond with a term to maturity of five years as quoted as of 10:00 a.m. (Toronto time) on such date and which appears on the Bloomberg Screen GCAN5YR Page on such date; provided that, if such rate does not appear on the Bloomberg Screen GCAN5YR Page on such date, the 5-Year Government of Canada Yield will mean the arithmetic average (rounded to the nearest 1/100th of 1%) of the yields determined by two registered Canadian investment dealers, selected by the Company, as being the bid yield to maturity on such date (assuming semi-annual compounding) which a Canadian dollar denominated non-callable Government of Canada bond would carry if issued in Canadian dollars at 100% of its principal amount on such date with a term to maturity of five years.
“Indenture” has the meaning set forth in the recitals of this Supplemental Indenture.
“Ineligible Persons” means any person whose address is in, or whom the Company or its transfer agent has reason to believe is a resident of, any jurisdiction outside of Canada to the extent that: (x) the issuance or delivery by the Company of Conversion Preferred Shares to such person upon an Automatic Conversion would require the Company to take any action to comply with securities or analogous laws of such jurisdiction or would cause the Company not to be in compliance with the Company’s Articles or Canadian ownership restrictions provided for under applicable law, or (y) the Company or its transfer agent would be obligated to make or remit any tax withholdings or deductions to a governmental authority or agency, regulatory body or taxing authority in connection with the delivery of Conversion Preferred Shares to such person upon an Automatic Conversion.
“Initial Interest Reset Date” means December 17, 2026.
“Interest Reset Date” means the Initial Interest Reset Date and each date prior to the Maturity Date falling on the fifth anniversary of the preceding Interest Reset Date.
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“Interest Reset Period” means the period from and including the Initial Interest Reset Date to, but not including, the next following Interest Reset Date and thereafter each period from and including each Interest Reset Date to, but not including, the next following Interest Reset Date (or, in the case of the final Interest Reset Period commencing on the Final Interest Reset Date, the period from and including such Final Interest Reset Date to, but not including, the Maturity Date).
“Interest Rate Calculation Date” means, in respect of each Interest Reset Period, the Business Day immediately prior to the beginning of such Interest Reset Period.
“Issue Date” means December 17, 2021, the initial issue date of the Notes.
“Moody’s” means Moody’s Investors Service, Inc. or any successor to the rating agency business thereof.
“Notes” has the meaning set forth in the recitals of this Supplemental Indenture.
“Rating Event” means any Designated Rating Agency amends, clarifies or changes the methodology or criteria it uses to assign equity credit to securities such as the Notes, which amendment, clarification or change results in (a) the shortening of the length of time the Notes are assigned a particular level of equity credit by that Designated Rating Agency as compared to the length of time they would have been assigned that level of equity credit by that Designated Rating Agency or its predecessor on the Issue Date; or (b) the lowering of the equity credit assigned to the Notes by that Designated Rating Agency compared to the equity credit assigned by that Designated Rating Agency or its predecessor on the Issue Date.
“S&P” means S&P Global Ratings, a division of S&P Global Inc., or any successor to the rating agency business thereof.
“Senior Creditor” means a holder or holders of Senior Indebtedness and includes any representative or representatives or trustee or trustees of any such holder and such other lenders providing advances to the Company pursuant to Senior Indebtedness.
“Senior Indebtedness” means all present and future indebtedness, liabilities and other obligations (other than Subordinated Indebtedness) of, or guaranteed or assumed by, the Company for borrowed money or evidenced by bonds, debentures or notes or obligations of the Company for or in respect of bankers’ acceptances (including the face amount thereof), letters of credit and letters of guarantee (including all reimbursement obligations in respect of each of the foregoing) or other similar instruments, and amendments, renewals, extensions, modifications and refunding of any such indebtedness, liabilities or other obligations.
“Subordinated Indebtedness” means the Notes or any other obligations that are, pursuant to the terms of the instrument or agreement creating or evidencing those obligations, expressly designated as being (i) subordinate in right of payment to
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Senior Indebtedness or (ii) pari passu with, or subordinate to, the Notes in right of payment.
“Tax Event” means the Company has received an opinion of counsel of a law firm that is nationally recognized in Canada or the U.S. and experienced in such matters (who may be counsel to the Company) to the effect that, as a result of, (i) any amendment to, clarification of, or change (including any announced prospective change) in, the laws, or any regulations or rulings thereunder, or any application or interpretation thereof, of Canada or the U.S. or any political subdivision or authority or agency thereof or therein having power to tax or any applicable tax treaty, (ii) any judicial decision, administrative pronouncement, published or private ruling, regulatory procedure, rule, notice, announcement, assessment or reassessment (including any notice or announcement of intent to adopt or issue such decision, pronouncement, ruling, procedure, rule, notice, announcement, assessment or reassessment) (collectively, an “Administrative Action”), or (iii) any amendment to, clarification of, or change in, the official position with respect to or the interpretation of any Administrative Action or any interpretation or pronouncement that provides for a position with respect to such Administrative Action that differs from the theretofore generally accepted position, in each of case (i), (ii) or (iii), by any legislative body, court, governmental authority or agency, regulatory body or taxing authority, irrespective of the manner in which such amendment, clarification, change, Administrative Action, interpretation or pronouncement is made known, which amendment, clarification, change or Administrative Action is effective or which interpretation, pronouncement or Administrative Action is announced on or after the Issue Date, there is more than an insubstantial risk (assuming any proposed or announced amendment, clarification, change, interpretation, pronouncement or Administrative Action is effective and applicable) that the Company is, or may be, subject to more than a de minimis amount of additional taxes, duties or other governmental charges or civil liabilities because the treatment of any of its items of income, taxable income, expense, taxable capital or taxable paid-up capital with respect to the Notes (including the treatment by the Company of interest on the Notes), as or as would be reflected in any tax return or form filed, to be filed, or that otherwise could have been filed, will not be respected by a taxing authority.
“Trustee” means the Person named as the “Trustee” in the first paragraph of this Supplemental Indenture, until a successor shall have become such pursuant to the applicable provisions of the Indenture, and thereafter “Trustee” shall mean such successor Trustee.
SECTION 102. OTHER DEFINITIONS.
| DEFINED TERM |
DEFINED IN SECTION | |
| Automatic Conversion |
601 | |
| CDS |
202 | |
| Conversion Time |
601 |
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| DEFINED TERM |
DEFINED IN SECTION | |
| Deferred Interest |
303 | |
| Deferral Period |
303 | |
| Deferral Right |
202 | |
| Dividend Restricted Shares |
501 | |
| Maturity Date |
301 | |
| Parity Notes |
501 | |
| Permitted Purchase |
501 |
SECTION 103. EFFECT OF SUPPLEMENTAL INDENTURE.
Upon the execution and delivery of this Supplemental Indenture by the Company and the Trustee, the Indenture shall be supplemented and amended in accordance herewith, and this Supplemental Indenture shall form a part of the Indenture for all purposes; provided, however, that except as otherwise provided herein, the provisions of this Supplemental Indenture shall be applicable, and the Indenture is hereby supplemented and amended as specified herein, solely with respect to the Notes and not with respect to any other Securities previously issued or to be issued under the Indenture. In the event of a conflict between any provisions of the Indenture and this Supplemental Indenture, the relevant provision or provisions of this Supplemental Indenture shall govern.
SECTION 104. INDENTURE REMAINS IN FULL FORCE AND EFFECT.
Except as supplemented or amended hereby, all other provisions in the Indenture, to the extent not inconsistent with the terms and provisions of this Supplemental Indenture, shall remain in full force and effect.
SECTION 105. INCORPORATION OF INDENTURE.
All the provisions of this Supplemental Indenture shall be deemed to be incorporated in, and made a part of, the Indenture; and the Indenture, as supplemented and amended by this Supplemental Indenture, shall be read, taken and construed as one and the same instrument; provided, however, that the provisions of this Supplemental Indenture are expressly and solely for the benefit of the Holders of the Notes.
SECTION 106. COUNTERPARTS.
This Supplemental Indenture may be executed and delivered in several counterparts (including electronically by way of portable document format (pdf)), each of which so executed and delivered shall be deemed to be an original (including if delivered by pdf), but all such counterparts shall together constitute but one and the same instrument and shall have the same effect as if an original signature had been delivered in all cases.
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SECTION 107. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof. Unless otherwise expressly specified, references in this Supplemental Indenture to specific Article numbers or Section numbers refer to Articles and Sections contained in this Supplemental Indenture, and not the Indenture or any other document.
SECTION 108. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Supplemental Indenture by the Company shall bind its successors and permitted assigns (if any), whether so expressed or not. All covenants and agreements of the Trustee in this Supplemental Indenture shall bind its successors and permitted assigns (if any), whether so expressed or not.
SECTION 109. SEPARABILITY CLAUSE.
In case any provision in this Supplemental Indenture or in the Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 110. BENEFITS OF SUPPLEMENTAL INDENTURE.
Nothing in this Supplemental Indenture or in the Notes, express or implied, shall give to any Person (other than the parties hereto, any Paying Agent and any Security Registrar, and their successors hereunder, and the Holders) any benefit or any legal or equitable right, remedy or claim under this Supplemental Indenture or in respect of the Notes.
SECTION 111. GOVERNING LAW.
This Supplemental Indenture and the Notes shall be governed by and construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein. This Supplemental Indenture shall be subject to the provisions of Trust Indenture Legislation that are required or deemed to be part of this Supplemental Indenture and shall, to the extent applicable, be governed by such provisions.
ARTICLE TWO
FORM OF THE NOTES
SECTION 201. FORMS GENERALLY.
The Notes and the Trustee’s certificate of authentication shall be in substantially the forms set forth in this Article, with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Supplemental Indenture, or as may reasonably be required by the Depositary, and may have such letters, numbers or other marks of identification and such legends or
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endorsements placed thereon as may be required to comply with the rules of any securities exchange or as may, consistently herewith, be determined by any of the individuals executing such Notes, as evidenced by such individual’s execution of the Notes (but which shall not affect the rights or duties of the Trustee).
The definitive Notes shall be printed, lithographed or engraved or produced by any combination of these methods or may be produced in any other manner permitted by the rules of the Depositary or any securities exchange on which the Notes may be listed, all as determined by any of the individuals executing such Notes, as evidenced by such individual’s execution of such Notes.
The Notes shall be in registered form and shall initially be registered in the name of the Depositary or its nominee. The Notes shall be issued initially as Book-Entry Securities in the form of one or more Global Securities substantially in the form set forth in this Article delivered to the Depositary or a nominee thereof as custodian therefor and held by the Depositary or a nominee thereof for the applicable Clearing Agency Participants, and duly executed by the Company and authenticated by the Trustee as hereinafter provided. The Depositary for such Global Securities shall be CDS. The aggregate principal amount of the Global Securities may from time to time be increased or decreased by adjustments made on the records of the Depositary or its nominee, or of the Trustee, as custodian for the Depositary or its nominee, as hereinafter provided.
The Notes may be executed and delivered in several counterparts (including electronically by way of portable document format (pdf)), each of which so executed and delivered shall be deemed to be an original (including if delivered by pdf), but all such counterparts shall together constitute but one and the same instrument and shall have the same effect as if an original signature had been delivered in all cases.
SECTION 202. FORM OF NOTE.
The Notes and the Trustee’s certificate of authentication to be endorsed thereon are to be substantially in the form provided for in this Section 202:
[Note: Insert if CDS is Depositary – UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF CDS CLEARING AND DEPOSITORY SERVICES INC. (“CDS”) TO ROGERS COMMUNICATIONS INC. 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
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VIOLATION OF ITS RIGHTS FOR ANOTHER PERSON TO HOLD, TRANSFER OR DEAL WITH THIS CERTIFICATE.]
[Note: Insert if a Global Security – THIS NOTE IS A GLOBAL SECURITY WITHIN THE MEANING OF THE BASE INDENTURE (HEREINAFTER REFERRED TO). THIS NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE BASE INDENTURE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF. THIS NOTE IS NOT EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE, AND NO TRANSFER OF THIS NOTE (OTHER THAN A TRANSFER OF THIS NOTE AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED, EXCEPT IN THE CIRCUMSTANCES DESCRIBED IN THE BASE INDENTURE OR THE SUPPLEMENTAL INDENTURE HEREINAFTER REFERRED TO.]
UNLESS PERMITTED UNDER SECURITIES LEGISLATION, THE HOLDER OF THIS SECURITY MUST NOT TRADE THE SECURITY BEFORE ∎, ∎. [Note: insert date that is 4 months and one day after the initial issue date for the Notes]
ROGERS COMMUNICATIONS INC.
5.00% FIXED-TO-FIXED RATE SUBORDINATED NOTES DUE 2081
| No. ∎ | CUSIP: 775109BR1 | |
| ISIN: CA775109BR15 |
Cdn$∎ [Note: Insert if a Global Security – (as revised by the Schedule of Increases and Decreases in Global Note attached hereto)]
Rogers Communications Inc., a corporation organized under the laws of the Province of British Columbia (herein called the “Company”, which term includes any successor entity under the Indenture hereinafter referred to), for value received, hereby promises to pay to [CDS & CO.][∎] or registered assigns, the principal sum of ____________ Canadian dollars [Note: Insert if a Global Security – (as revised by the Schedule of Increases and Decreases in Global Note attached hereto)] on December 17, 2081, at the office or agency of the Company referred to below, and, subject to the Company’s right to defer interest payments (the “Deferral Right”) set out in SECTION 303 of the Supplemental Indenture (as defined below), to pay accrued interest on such principal amount in arrears, in equal semi-annual payments on June 17 and December 17 (each herein called an “Interest Payment Date”) (or, if such day is not a Business Day, the next following Business Day) of each year, beginning on June 17, 2022, at the applicable rate specified below, which interest shall accrue from and including December 17, 2021
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or, if interest has already been paid or duly provided for, from the most recent Interest Payment Date to which interest has been paid or duly provided for.
Interest will accrue on the aggregate unpaid principal amount of this Note from, and including, December 17, 2021 to, but excluding, December 17, 2026 (the “Initial Interest Reset Date”) at a rate of 5.00% per annum. During each Interest Reset Period (as defined in the Supplemental Indenture), the Notes will accrue interest at a rate per annum equal to the 5-year Government of Canada Yield (as defined in the Supplemental Indenture) as of the most recent Interest Rate Calculation Date (as defined in the Supplemental Indenture) plus, (i) for the period from, and including, the Initial Interest Reset Date to, but excluding, December 17, 2031, 3.575%, (ii) for the period from, and including, December 17, 2031 to, but excluding December 17, 2046, 3.825% and (iii) for the period from, and including, December 17, 2046 to, but excluding, the Maturity Date, 4.575%, in each case, to be reset on each Interest Reset Date. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in the Indenture (as defined below), be paid to the Person in whose name this Note (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, which shall be the tenth Business Day immediately preceding such Interest Payment Date. For any period (other than a full coupon period for an installment of interest), interest on this Note shall be calculated on the basis of a 365 day year, based on the actual number of days elapsed in such period.
This Note is one of a duly authorized issue of securities of the Company designated as its 5.00% Fixed-to-Fixed Rate Subordinated Notes due 2081 (herein called the “Notes”), issued or issuable under an indenture (as the same may from time to time be supplemented or amended (other than by a Series Supplement), herein called the “Base Indenture”) dated as of December 17, 2021 between the Company and BNY Trust Company of Canada, as trustee (herein called the “Trustee”, which term includes any successor trustee thereunder), as supplemented and amended by the First Supplemental Indenture dated as of December 17, 2021 between the Company and the Trustee (herein called the “Supplemental Indenture” and, together with the Base Indenture, the “Indenture”), to which the Indenture reference is hereby made for a statement of the respective rights, limitations of rights, duties, obligations and immunities thereunder of the Company, the Trustee and the Holders of the Notes, and of the terms upon which the Notes are, and are to be, authenticated and delivered. All terms used in this Note which are defined in the Indenture shall have the meanings assigned to them in the Indenture. In the event of a conflict between the terms of the Notes and the terms of the Indenture, the terms of the Indenture shall prevail. A Holder may obtain from the Trustee a copy of the Base Indenture and the Supplemental Indenture on written request and upon payment of a reasonable copying charge.
Payment of the principal of (and premium, if any) and interest on this Note will be made in Canadian dollars.
The indebtedness evidenced by this Note, and payment of principal and interest on the Notes, is subordinated to all Senior Indebtedness (as defined in the Supplemental Indenture) to the extent and in the manner provided in the Indenture. Upon
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an Automatic Conversion Event (as defined in the Supplemental Indenture), the Notes will be automatically converted into Conversion Preferred Shares (as defined in the Supplemental Indenture), in the manner, with the effect and as of the effective time contemplated in the Supplemental Indenture. Notwithstanding anything contained herein to the contrary, no interest on the Notes will accrue or be payable after the Conversion Time (as defined in the Supplemental Indenture).
The Notes are subject to redemption at the option of the Company as described in the Indenture.
If an Event of Default shall occur and be continuing, the principal amount of all the Notes may be declared due and payable in the manner and with the effect provided in the Indenture.
The Indenture contains provisions for the defeasance and discharge of the Notes.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders under the Indenture at any time by the Company and the Trustee with the consent of the Holders of a specified percentage in aggregate principal amount of the Notes. The Indenture also contains provisions permitting the Holders of a specified percentage in aggregate principal amount of the Notes to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Without notice to or the consent of the Holders of the Notes, certain modifications and amendments may be made to the Indenture and the Notes.
The Notes are issuable only in registered form without coupons in denominations of Cdn$1,000 or any integral multiple thereof. Prior to the time of due presentment of this Note for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Note is registered as the owner hereof for all purposes except as otherwise provided, whether or not this Note be overdue, and neither the Company, the Trustee nor any agent shall be affected by notice to the contrary.
This Note shall not be entitled to any benefit under the Indenture, or be valid or obligatory for any purpose, unless and until the Trustee’s certificate of authentication below has been duly executed by or on behalf of the Trustee by the manual or electronic signature of a designated signing officer of the Trustee. This Note and the Indenture are governed by, and are to be construed in accordance with, the laws of the Province of Ontario and the laws of Canada applicable therein.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
Dated:
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| ROGERS COMMUNICATIONS INC. | ||
| By |
| |
| Name: | ||
| Title: | ||
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
BNY Trust Company of Canada, as Trustee, certifies that this is one of the Notes referred to in the within-mentioned Indenture.
| BNY TRUST COMPANY OF CANADA, as Trustee | ||
| By: |
| |
| Name: | ||
| Title: | ||
SECTION 203. SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY.
The following schedule is to be attached to Notes that are Global Securities:
5.00% FIXED-TO-FIXED RATE SUBORDINATED NOTES DUE DECEMBER 17, 2081
| Initial Principal Amount: Cdn$∎ | CUSIP 775109BR1 / ISIN CA775109BR15 |
Authorization: ______________________
The following increases or decreases in this Note have been made:
| Date |
Amount of decrease in Principal Amount of this Global Security |
Amount of increase in Principal Amount of this Global Security |
Principal Amount of this Global Security following such decrease or increase |
Signature of |
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ARTICLE THREE
THE NOTES
SECTION 301. TITLE AND TERMS.
The Notes shall be known and designated as the “5.00% Fixed-to-Fixed Rate Subordinated Notes due 2081” of the Company. The entire unpaid principal amount of each Note shall become due and payable to the Holder thereof on December 17, 2081 (the “Maturity Date”). Interest will accrue on the aggregate unpaid principal amount of each Note from, and including, December 17, 2021 to, but excluding, the Initial Interest Reset Date at a rate of interest equal to 5.00% per annum. During each Interest Reset Period, the Notes will accrue interest at a rate of interest per annum equal to the 5-year Government of Canada Yield as of the most recent Interest Rate Calculation Date plus, (i) for the period from, and including, the Initial Interest Reset Date to, but excluding, December 17, 2031, 3.575%, (ii) for the period from, and including, December 17, 2031 to, but not including December 17, 2046, 3.825% and (iii) for the period from, and including, December 17, 2046 to but excluding, the Maturity Date, 4.575%, in each case, to be reset on each Interest Reset Date. Interest shall accrue on the aggregate unpaid principal amount of each Note at the aforementioned rate(s), as applicable, from December 17, 2021 or, if interest has been paid or duly provided for, the most recent Interest Payment Date to which interest has been paid or duly provided for. The Company has the right to defer interest payments pursuant to SECTION 303. Subject to the Deferral Right provided therein, accrued and unpaid interest on the Notes shall be payable semi-annually on June 17 and December 17 in each year (each an Interest Payment Date for purposes of this Supplemental Indenture), in equal installments, until the principal thereof is paid or duly provided for. Interest on the Notes shall be payable in arrears. The Regular Record Date for the interest payable on any Interest Payment Date shall be the tenth Business Day immediately preceding such Interest Payment Date. Except for the compounding of Deferred Interest provided for in SECTION 303, no interest shall accrue on any overdue installments of interest. No interest on the Notes will accrue or be payable after the Conversion Time.
An unlimited aggregate principal amount of the Notes may be authenticated and delivered under this Supplemental Indenture (of which Cdn$2,000,000,000 is being issued, authenticated and delivered on the date hereof), including Notes authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Notes pursuant to Section 204, 205, 206, 207, 208, 806, 1008 or 1009 of the Indenture. Additional Notes ranking pari passu with the Securities issued on the date hereof may be created and issued under the Indenture from time to time by the Company without notice to or consent of the Holders, subject to the Company complying with any applicable provision of the Indenture. Any additional Notes created and issued shall have the same terms and conditions as the Notes initially issued, except for their date of issue, issue price and first Interest Payment Date, and shall be consolidated with and form a single Series with the Notes initially issued.
The Notes shall be unsecured, subordinated obligations of the Company. The payment of principal and interest on the Notes is subordinated in right of payment to
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the prior payment in full of all present and future Senior Indebtedness to the extent and in the manner provided in Article Seven.
The Notes shall be denominated in, and all principal of, and interest and premium (if any) on, the Notes shall be payable in Canadian dollars.
The Notes may be redeemed at the option of the Company at the prices, at the times and on such other terms and conditions as are specified in Article Four hereof. The Company shall not be obligated to redeem, purchase or repay the Notes pursuant to any sinking fund or analogous provisions or at the option of a Holder of the Notes.
The Notes shall be subject to the covenants (and the related definitions) set forth in Articles Seven and Nine of the Indenture and, except as otherwise provided herein, to any other covenant in the Indenture, and to the defeasance and discharge provisions set forth in Article Three of the Indenture.
SECTION 302. DENOMINATIONS.
The Notes shall be issuable only in fully registered form without coupons and in denominations of Cdn$1,000 or an integral multiple thereof.
SECTION 303. DEFERRAL RIGHT.
So long as no Event of Default has occurred and is continuing, the Company may elect, at its sole option, at any date other than an Interest Payment Date, to defer the interest payable on the Notes on one or more occasions for up to five consecutive years (a “Deferral Period”). Such deferral will not constitute an Event of Default, a Default or any other breach under the Indenture and the Notes. Any installment of interest whose payment is deferred pursuant to the Deferral Right provided for in this Section (“Deferred Interest”) will accrue, compounding on each subsequent Interest Payment Date, until paid. A Deferral Period terminates on any Interest Payment Date where the Company pays all accrued and unpaid interest on the Notes on such date. No Deferral Period may extend beyond the Maturity Date and, for greater certainty, all accrued and unpaid interest shall be due and payable at Maturity. There shall be no limit on the number of Deferral Periods that may occur. The Company will give the Trustee and the Holders of the Notes notice of its election to commence or continue a Deferral Period at least 10 and not more than 60 days prior to the next Interest Payment Date. The Trustee shall not be responsible for calculating the amount of any Deferred Interest.
SECTION 304. CALCULATION AGENT.
The Company shall appoint a Calculation Agent on or prior to Interest Rate Calculation Date applicable to the Initial Interest Reset Date; provided, however, that the Company shall not be required to appoint a Calculation Agent if the Company has elected to redeem all of the outstanding Notes as of the Initial Interest Reset Date; provided, further, that, if the Company has so elected but does not redeem all of the outstanding Notes on the Initial Interest Reset Date, the Company shall appoint a
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Calculation Agent not later than the Business Day immediately following the Initial Interest Reset Date.
The Calculation Agent will determine the applicable interest rate for each Interest Reset Period as of the applicable Interest Rate Calculation Date. Promptly upon such determination, the Calculation Agent, if other than the Company or an Affiliate of the Company, will notify the Company of the applicable interest rate for the relevant Interest Reset Period and, provided the Trustee is not the Calculation Agent, the Company will then promptly notify the Trustee of such interest rate.
ARTICLE FOUR
REDEMPTION OF THE NOTES
SECTION 401. OPTIONAL REDEMPTION.
The Company may, at its option and without the consent of any Holder, redeem the Notes, in whole or in part, (1) on December 17, 2026 and, (2) thereafter, on any Interest Reset Date or any Interest Payment Date, in each case, at a Redemption Price equal to 100% of the principal amount of the Notes to be redeemed, plus accrued and unpaid interest (including Deferred Interest, if any) thereon to, but excluding, the Redemption Date (subject to the right of Holders of the Notes on the relevant Regular Record Date to instead receive such accrued and unpaid interest as provided in Section 1007 of the Indenture). For greater clarity, if there is a Tax Event or Rating Event on or after December 17, 2026, the Company may optionally redeem the Notes in accordance with the optional redemption right in this SECTION 401 without regard to the additional rights of redemption provided for such Tax Event or Rating Event, as applicable, in the other Sections of this Article Four.
SECTION 402. REDEMPTION ON TAX EVENT.
At any time within 90 days following the occurrence of a Tax Event, the Company may, at its option and without the consent of any Holder, redeem all (but not less than all) of the Notes at a Redemption Price equal to 100% of the principal amount of the Notes to be redeemed, plus accrued and unpaid interest (including Deferred Interest, if any) thereon to, but excluding, the Redemption Date (subject to the right of Holders of the Notes on the relevant Regular Record Date to instead receive such accrued and unpaid interest as provided in Section 1007 of the Indenture).
SECTION 403. REDEMPTION ON RATING EVENT.
At any time within 90 days following the occurrence of a Rating Event, the Company may, at its option and without the consent of any Holder, redeem all (but not less than all) of the Notes at a Redemption Price equal to 102% of the principal amount of the Notes to be redeemed, plus accrued and unpaid interest (including Deferred Interest, if any) thereon to, but excluding, the Redemption Date (subject to the right of Holders of the Notes on the relevant Regular Record Date to instead receive such accrued and unpaid interest as provided in Section 1007 of the Indenture).
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ARTICLE FIVE
ADDITIONAL COVENANTS
SECTION 501. DIVIDEND STOPPER UNDERTAKING.
(a) Unless the Company has paid all interest on the Notes that, at such time, has accrued and is payable (including Deferred Interest, if any), the Company will not (i) declare any dividends on Dividend Restricted Shares (other than stock dividends on Dividend Restricted Shares) or pay any interest on any Parity Notes, (ii) redeem, purchase or otherwise retire for value any Dividend Restricted Shares or Parity Notes (unless such redemption, purchase or retirement for value is a Permitted Purchase), or (iii) make any payment to holders of any of the Dividend Restricted Shares or any of the Parity Notes in respect of dividends not declared or paid on such Dividend Restricted Shares or interest not paid on such Parity Notes, respectively.
(b) For purposes of this Section 501:
(i) “Dividend Restricted Shares” means, collectively, the Company’s Preferred Shares or Class A Voting Shares or Class B Non-Voting Shares;
(ii) “Parity Notes” means any class or series of the Company’s debt securities or other indebtedness of the Company for borrowed money outstanding on the date hereof or hereafter created which ranks on a parity with the Notes (prior to any Automatic Conversion) as to distributions upon liquidation, dissolution or winding-up; and
(iii) “Permitted Purchase” means a redemption, purchase or other retirement for value of any Dividend Restricted Shares or Parity Notes (A) pursuant to any purchase obligation, sinking fund, retraction privilege or mandatory redemption provisions attaching to any series of Dividend Restricted Shares) or, (B) with respect to Dividend Restricted Shares, (x) out of the net cash proceeds of a substantially concurrent issuance and sale of, or made in exchange for (including by using), Dividend Restricted Shares or a substantially concurrent net cash capital contribution received by the Company (other than from a Subsidiary of the Company), (y) deemed to occur upon the exercise or exchange of options, warrants or other convertible or exchangeable securities, to the extent such Dividend Restricted Shares represent all or a portion of the exercise, conversion or exchange price thereof, together with any withholding to pay for the taxes payable in connection therewith or (z) cash payments in lieu of issuing fractional shares in connection with share dividends, splits or business combinations or the exercise of warrants, options or other securities convertible into or exchangeable for Dividend Restricted Shares of the Company.
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SECTION 502. OTHER PREFERRED SHARES.
For so long as the Conversion Preferred Shares issuable upon the Automatic Conversion are issuable and the Notes are outstanding:
(a) the Company will not issue any Preferred Shares which, in the event of insolvency or winding-up of the Company, would rank in right of payment in priority to the Conversion Preferred Shares (but for, greater certainty, the Company may issue Preferred Shares which, in the event of insolvency or winding up of the Company, would rank pari passu in right of payment in priority with the Conversion Preferred Shares);
(b) the Company will not issue other Preferred Shares if, following such issuance, the Conversion Preferred Shares issuable upon an Automatic Conversion could not be issued as a result of the restriction in the Company’s Articles with regards to the aggregate number of Preferred Shares which may be outstanding; and
(c) the Company shall ensure that the Company’s Articles shall at all times authorize a sufficient number of Conversion Preferred Shares to ensure that the Company can issue the number of Conversion Preferred Shares issuable upon an Automatic Conversion pursuant to the provisions of this Indenture.
SECTION 503. WAIVER OF CERTAIN COVENANTS.
Pursuant to Section 907 of the Indenture, but subject to Section 412 and Section 802 of the Indenture, the Company may omit in any particular instance to comply with any covenant or provision thereof and any covenant or provision in Sections 501 or 502 of this Supplemental Indenture if, before or after the time for such compliance, the Holders of all of the Notes at the time Outstanding shall, by Holder Direction, waive such compliance in such instance with such covenant or provision, but no such waiver shall extend to or affect such covenant or provision except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Company and the duties of the Trustee in respect of any such covenant or provision shall remain in full force and effect.
ARTICLE SIX
AUTOMATIC CONVERSION
SECTION 601. AUTOMATIC CONVERSION.
(a) Upon an Automatic Conversion Event, as of the Conversion Time and without the consent of the Holders, the Notes shall be automatically converted into fully paid and non-assessable Conversion Preferred Shares, with a stated issue price and redemption value of $1,000 per share, as provided in this SECTION 601 (the “Automatic Conversion”). Each Note that is outstanding immediately prior to the Conversion Time (as defined below) shall be automatically converted into (i) one Conversion Preferred Share for each $1,000 principal amount of such Note and (ii) such number of Conversion Preferred Shares (including fractional shares, where applicable) calculated by dividing the amount of accrued and unpaid interest on each $1,000
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principal amount of such Note as of the date immediately prior to the date of the Automatic Conversion by $1,000. The Automatic Conversion shall occur upon an Automatic Conversion Event (the “Conversion Time”). Notwithstanding anything contained herein to the contrary, no interest on the Notes will accrue or be payable after the Conversion Time.
(b) At the Conversion Time all of the Notes shall be deemed to be immediately and automatically surrendered and cancelled without need for further action by the Holders who shall thereupon automatically cease to be Holders thereof and all rights of any such Holder as a debtholder of the Company shall automatically cease, provided, however, that certificated Notes, if any, shall be surrendered by the Holder to the Trustee for cancellation prior to the distribution of the Conversion Preferred Shares issuable to such Holder thereunder pursuant to an Automatic Conversion. For greater certainty, any Notes purchased or redeemed by the Company prior to the Conversion Time shall be deemed not to be outstanding, and shall not be subject to the Automatic Conversion.
(c) The Automatic Conversion shall be mandatory and binding upon both the Company and all Holders notwithstanding anything contained herein to the contrary, including, without limitation: (a) the existence or prior occurrence of an Event of Default; (b) any prior action to or in furtherance of redeeming, exchanging or converting the Notes pursuant to the other terms and conditions of this Supplemental Indenture or the Indenture; and (c) any delay in or impediment to the issuance or delivery of the Conversion Preferred Shares to the Holders.
(d) Notwithstanding anything contained herein to the contrary, the Trustee shall not have any responsibility to determine if and when an Automatic Conversion Event has occurred or for any calculations required to be made in connection with an Automatic Conversion. The Company shall provide written notification of the occurrence of an Automatic Conversion Event upon which the Trustee shall be able to conclusively rely. The Company shall make all the calculations required to be made pursuant to an Automatic Conversion. The Trustee makes no representation as to the validity or value of any securities or assets delivered by the Company pursuant to any Automatic Conversion and the Trustee shall not be responsible for any failure by Company to comply with the provisions of this Article Six.
(e) Upon receipt by the Holders of all of the Conversion Preferred Shares from the Company to which the Holders are entitled pursuant to this Indenture, the Trustee shall not be required to take any further directions from Holders of the Notes. In connection with an Automatic Conversion, the Trustee shall carry out such other acts and duties, and provide such other services, as may reasonably be requested by the Company; provided, however, that the Trustee shall have no obligations with respect to the delivery of Conversion Preferred Shares to former
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Holders of the Notes, nor shall the Trustee be obligated to hold the Conversion Preferred Shares on behalf of such former Holders of the Notes, upon an Automatic Conversion Event.
SECTION 602. RIGHT NOT TO DELIVER THE CONVERSION PREFERRED SHARES.
Upon an Automatic Conversion of the Notes, the Company reserves the right not to issue some or all, as applicable, of the Conversion Preferred Shares to Ineligible Persons. In such circumstances, the Company will hold all Conversion Preferred Shares that would otherwise be delivered to Ineligible Persons, as agent for such Ineligible Persons, and will attempt to facilitate the sale of such Conversion Preferred Shares through a registered dealer retained by the Company for the purpose of effecting the sale (to parties other than the Company, its affiliates or other Ineligible Persons) on behalf of such Ineligible Persons. Such sales, if any, may be made at any time and any price. The Company will not be subject to any liability for failing to sell Conversion Preferred Shares on behalf of any such Ineligible Persons or at any particular price on any particular day. The net proceeds received by the Company from the sale of any such Conversion Preferred Shares will be divided among the Ineligible Persons in proportion to the number of Conversion Preferred Shares that would otherwise have been delivered to them, after deducting the costs of sale and applicable taxes, if any. The Company will make payment of the aggregate net proceeds to the Depositary (if the Notes are then held in its book-entry only system) or to the registrar and transfer agent (in all other cases) for distribution to such Ineligible Persons in accordance with the Depositary’s procedures or otherwise.
As a precondition to the delivery of any certificate representing, or other evidence of an interest in, any Conversion Preferred Shares or related rights following an Automatic Conversion, the Company may obtain from any Holder, persons holding the Notes represented by such Holder or any beneficial owner of the Notes a declaration, in form and substance satisfactory to the Company, confirming that such Holder, person holding the Notes represented by such Holder or beneficial owner of the Notes is not, and does not represent, an Ineligible Person.
ARTICLE SEVEN
SUBORDINATION OF NOTES
SECTION 701. NOTES SUBORDINATED TO SENIOR INDEBTEDNESS.
(a) The Company covenants and agrees, and each Holder of Notes, by the acceptance thereof, likewise covenants and agrees, that the indebtedness represented by the Notes and the payment of the principal of and interest on each and all of the Notes is hereby expressly subordinated, to the extent and in the manner hereinafter set forth, in right of payment to the prior payment in full of Senior Indebtedness.
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(b) In the event (x) of any insolvency or bankruptcy proceedings or any receivership, liquidation, reorganization or other similar proceedings in respect of the Company or a substantial part of its property, or of any proceedings for liquidation, dissolution or other winding up of the Company, whether or not involving insolvency or bankruptcy, or, (y) subject to the provisions of SECTION 702, that (A) a default shall have occurred with respect to the payment of principal of or interest on or other monetary amounts due and payable on any Senior Indebtedness (without giving effect to any cure period with respect thereto), or (B) there shall have occurred an event of default (other than a default of the type specified in subclause (A) of this clause (b)(y)) in respect of any Senior Indebtedness, as defined therein or in the instrument under which the same is outstanding, permitting the holder or holders of such Senior Indebtedness to accelerate the maturity thereof (with notice or lapse of time, or both), and such event of default shall have continued beyond the period of grace, if any, in respect thereof, and, in the cases of subclauses (A) and (B) of this clause (b)(y) such default or event of default shall not have been cured or waived or shall not have ceased to exist, or (z) that the principal of the Notes or of any other Securities of any Series shall have been declared due and payable pursuant to Section 402 of the Indenture and such declaration of acceleration shall not have been rescinded and annulled as provided in the Indenture, then:
(i) the holders of all Senior Indebtedness shall first be entitled to receive payment of the full amount due thereon, or provision shall be made for such payment in money or money’s worth, before the Holders of any of the Notes are entitled to receive a payment on account of the principal of, or interest or premium (if any) on, the indebtedness evidenced by the Notes, including, without limitation, any payments made pursuant to any redemption of the Notes or purchase of the Notes for cancellation;
(ii) any payment by, or distribution of assets of, the Company of any kind or character, whether in cash, property or securities, to which the Holders of any of the Notes or the Trustee would be entitled except for the provisions of this SECTION 701 shall be paid or delivered by the person making such payment or distribution, whether a Custodian or otherwise, directly to the holders of such Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, ratably according to the aggregate amounts remaining unpaid on account of such Senior Indebtedness held or represented by each, to the extent necessary to make payment in full of all Senior Indebtedness remaining unpaid after giving effect to any concurrent payment or distribution (or provision therefor) to the holders of such Senior Indebtedness, before any payment or distribution is made to the holders of the indebtedness evidenced by the Notes or to the Trustee under the Indenture or this Supplemental Indenture; and
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(iii) in the event that, notwithstanding the foregoing, any payment by, or distribution of assets of, the Company of any kind or character, whether in cash, property or securities, in respect of principal of or interest on the Notes or in connection with any repurchase by the Company of the Notes, shall be received by the Trustee or the Holders of any of the Notes before all Senior Indebtedness is paid in full, or provision made for such payment in money or money’s worth, such payment or distribution in respect of principal of, or interest or premium (if any) on, the Notes or in connection with any redemption or repurchase by the Company of the Notes shall be paid over to the holders of such Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any such Senior Indebtedness may have been issued, ratably as aforesaid, for application to the payment of all Senior Indebtedness remaining unpaid until all such Senior Indebtedness shall have been paid in full, after giving effect to any concurrent payment or distribution (or provision therefor) to the holders of such Senior Indebtedness.
SECTION 702. DISPUTES WITH HOLDER OF CERTAIN SENIOR INDEBTEDNESS.
Any failure by the Company to make any payment on or perform any other obligation under Senior Indebtedness, other than any indebtedness incurred by the Company or assumed or guaranteed, directly or indirectly, by the Company for money borrowed (or any deferral, renewal, extension or refunding thereof) or any indebtedness or obligation as to which the provisions of this SECTION 702 shall have been waived by the Company in the instrument or instruments by which the Company incurred, assumed, guaranteed or otherwise created such indebtedness or obligation, shall not be deemed a default under subclause (A) or an event of default under subclause (B), as applicable, of Section 701(b)(y) of this Supplemental Indenture if (a) the Company shall be disputing its obligation to make such payment or perform such obligation and (b) either (i) no final judgment relating to such dispute shall have been issued against the Company which is in full force and effect and is not subject to further review, including a judgment that has become final by reason of the expiration of the time within which a party may seek further appeal or review, or (ii) in the event of a judgment that is subject to further review or appeal has been issued, the Company shall in good faith be prosecuting an appeal or other proceeding for review and a stay of execution shall have been obtained pending such appeal or review.
SECTION 703. SUBROGATION.
Subject to the payment in full of all Senior Indebtedness, the Holders of the Notes shall be subrogated (equally and ratably with the holders of all obligations of the Company which by their express terms are subordinated to Senior Indebtedness of the Company to the same extent as the Notes are subordinated and which are entitled to like rights of subrogation) to the rights of the holders of Senior Indebtedness to receive payments or distributions of cash, property or securities of the Company applicable to the
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Senior Indebtedness until all amounts owing on the Notes shall be paid in full, and as between the Company, its creditors other than holders of such Senior Indebtedness and the Holders, no such payment or distribution made to the holders of Senior Indebtedness by virtue of this Article that otherwise would have been made to the Holders shall be deemed to be a payment by the Company on account of such Senior Indebtedness, it being understood that the provisions of this Article are intended solely for the purpose of defining the relative rights of the Holders, on the one hand, and the holders of Senior Indebtedness, on the other hand.
SECTION 704. RELATIVE RIGHTS NOT OTHERWISE IMPAIRED.
(a) Nothing contained in this Article is intended to or shall impair, as among the Company, its creditors (other than the holders of Senior Indebtedness) and the Holders, the obligation of the Company to pay to the Holders the principal of and interest on the Notes as and when the same shall become due and payable in accordance with their terms, or is intended to or shall affect the relative rights of the Holders and creditors of the Company other than the holders of Senior Indebtedness, nor shall anything herein or therein prevent the Trustee or any Holder from exercising all remedies otherwise permitted by applicable law upon default under this Indenture, subject to the rights, if any, under this Article of the holders of Senior Indebtedness in respect of cash, property or securities of the Company received upon the exercise of any such remedy
(b) Upon payment or distribution of assets of the Company referred to in this Article, the Trustee and the Holders shall be entitled to rely upon any order or decree made by any court of competent jurisdiction in which any such dissolution, winding up, liquidation or reorganization proceeding affecting the affairs of the Company is pending or upon a certificate of the Custodian or other person making any payment or distribution, delivered to the Trustee or to the Holders, 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 Company, the amount thereof or payable thereon, the amount paid or distributed thereon and all other facts pertinent thereto or to this Article.
SECTION 705. EFFECTUATION OF SUBORDINATION BY TRUSTEE; WAIVER OF CONFLICTS.
Each Holder by its acceptance thereof authorizes and directs the Trustee on its behalf to take such action as may be necessary or appropriate to effect the subordination as provided in this Article and appoints the Trustee as its attorney-in-fact for any and all such purposes. This appointment shall be irrevocable. Upon request of the Company, and upon being funded, indemnified and furnished an Officer’s Certificate stating that one or more named Persons are Senior Creditors and specifying the amount and nature of the Senior Indebtedness of such Senior Creditor, the Trustee shall enter into a written agreement or agreements with the Company and the Persons named in such Officer’s Certificate providing that such Persons are entitled to all the rights and benefits of this Article as Senior Creditors and for such other matters, such as an agreement not to
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amend the provisions of this Article and the definitions used herein without the consent of such Senior Creditors, as the Senior Creditors may reasonably request. Such agreement shall be conclusive evidence that the indebtedness specified therein is Senior Indebtedness; however, nothing herein shall impair the rights of any Senior Creditor who has not entered into such an agreement.
The Company and each Holder (by its acceptance thereof) acknowledge that the Trustee acts, and may in the future act, as trustee with respect to Senior Indebtedness and hereby waive any material conflict that may arise from such appointment. Notwithstanding anything else in this Supplemental Indenture or the Indenture (including, but not limited to, Article Four of the Indenture), the Holders may not direct the Trustee to take any action to enforce the payment of the principal of (or premium, if any) or interest on the Notes unless and until the Company has been fully released and discharged from its obligations under the Senior Indebtedness by the Senior Creditors.
SECTION 706. KNOWLEDGE OF TRUSTEE.
Notwithstanding the provisions of this Article or any other provisions of this Supplemental Indenture or the Indenture, the Trustee shall not be charged with knowledge of the existence of any facts that would prohibit the making of any payment of moneys to or by the Trustee, or the taking of any other action by the Trustee, unless and until the Trustee shall have received written notice thereof mailed or otherwise delivered to the Trustee from the Company, any Holder of any Securities of any Series, any paying agent or the holder or representative of any class of Senior Indebtedness.
SECTION 707. TRUSTEE MAY HOLD SENIOR INDEBTEDNESS.
The Trustee shall be entitled to all the rights set forth in this Article with respect to any Senior Indebtedness at the time held by it, to the same extent as any other holder of Senior Indebtedness, and nothing in this Article or any other provisions of this Supplemental Indenture or the Indenture shall deprive the Trustee of any of its rights as such holder.
SECTION 708. RIGHTS OF SENIOR INDEBTEDNESS NOT IMPAIRED.
(a) No right of any present or future holder of any Senior Indebtedness to enforce the subordination herein shall at any time or in any way be prejudiced or impaired by any act or failure to act on the part of the Company or by any noncompliance by the Company with the terms, provisions and covenants of the Indenture or this Supplemental Indenture, regardless of any knowledge thereof any such holder may have or be otherwise charged with.
(b) With respect to the holders of Senior Indebtedness, (i) the duties and obligations of the Trustee shall be determined solely by the express provisions of
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this Supplemental Indenture, (ii) the Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in the this Supplemental Indenture, (iii) no implied covenants or obligations shall be read into this Supplemental Indenture against the Trustee and (iv) the Trustee shall not be deemed to be a fiduciary as to such holders.
SECTION 709. ARTICLE APPLICABLE TO PAYING AGENTS.
In case at any time any Paying Agent other than the Trustee shall have been appointed by the Company and be then acting hereunder, the term Trustee as used in this Article shall in such case (unless the context shall require otherwise) be construed as extending to and including such Paying Agent within its meaning as fully for all intents and purposes as if such Paying Agent were named in this Article in addition to or in place of the Trustee; provided, however, that SECTION 706 and SECTION 707 of this Supplemental Indenture shall not apply to the Company if it acts as its own Paying Agent.
SECTION 710. TRUSTEE COMPENSATION NOT PREJUDICED.
Nothing in this Article shall apply to claims of, or payments to, the Trustee pursuant to Section 507 of the Indenture.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed all as of the day and year first above written.
| ROGERS COMMUNICATIONS INC., | ||
| By | [REDACTED] | |
| Name: [REDACTED] | ||
| Title: [REDACTED] | ||
| By | [REDACTED] | |
| Name: [REDACTED] | ||
| Title: [REDACTED] | ||
| BNY TRUST COMPANY OF CANADA, as Trustee | ||
| By | “Bhawna Dhayal” | |
| Name: Bhawna Dhayal | ||
| Title: Vice-President | ||