Rogers Communications Inc 6-K, filed Feb 9, 2024
Rogers Communications Inc (RCI)
6-K
2024-02-09
For: 2024-02-09
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Added on
April 11, 2026
About this 6-K
Rogers Communications Inc filed this 6-K on February 9, 2024.
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 February, 2024
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 office)
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 ☑
Incorporation by Reference
Exhibits 99.1, 99.2 and 99.3 included in this Form 6-K are incorporated by reference into the registrant’s registration statements on Form F-3D (File No. 333-170234)
and on Form F-10 (File No. 333-273187 and File No. 333-272511).
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.
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ROGERS COMMUNICATIONS INC.
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By:
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/s/ Marisa Wyse | ||
| Name: | Marisa Wyse | |||
| Title: | Chief Legal Officer and Corporate Secretary | |||
Date: February 9, 2024
Exhibit Index
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Exhibit Number
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Description of Document
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Exhibit 99.1
Execution Version
ROGERS COMMUNICATIONS INC.
UNDERWRITING AGREEMENT
February 7, 2024
To the Representatives named in
Schedule I hereto of the several
Underwriters named in
Schedule II hereto
Ladies and Gentlemen:
Rogers Communications Inc., a corporation existing under the laws of the Province of British Columbia, Canada (the “Company”), proposes to sell to the several underwriters named in
Schedule II hereto (the “Underwriters”), for whom you (the “Representatives”) are acting as representatives, (i) US$1,250,000,000 principal amount of its 5.000% Senior Notes due 2029 (the “2029 Notes”) as
identified in Schedule I hereto, to be issued under an indenture dated as of August 6, 2008 (the “Base Indenture”), between the Company and The Bank of New York Mellon, as trustee (the “Trustee”), as supplemented by the nineteenth supplemental
indenture among the Company, Rogers Communications Canada Inc., a corporation existing under the laws of Canada (the “Guarantor”), and the Trustee, to be dated as of the Closing Date (as defined below) (the “Nineteenth Supplemental Indenture” and,
together with the Base Indenture, the “2029 Indenture”) and (ii) US$1,250,000,000 principal amount of its 5.300% Senior Notes due 2034 (the “2034 Notes” and, together with the 2029 Notes, the “Securities”) as
identified in Schedule I hereto, to be issued under the Base Indenture, between the Company and the Trustee, as supplemented by the twentieth supplemental indenture among the Company, the Guarantor, and the Trustee, to be dated as of the Closing Date
(the “Twentieth Supplemental Indenture” and, together with the Base Indenture, the “2034 Indenture” and the 2029 Indenture together with the 2034 Indenture, the “Indentures”). Payment of principal of, premium, if any, and interest on the Securities
will be fully and unconditionally guaranteed on an unsecured, unsubordinated basis (the “Subsidiary Guarantee”) by the Guarantor. Payment of principal of, premium, if any, and interest on the Subsidiary Guarantee will be fully and unconditionally
guaranteed on an unsecured, unsubordinated basis (the “Parent Guarantee” and, together with the Subsidiary Guarantee, the “Guarantees”) by the Company. To the extent there are no additional Underwriters listed on Schedule II other than you, the term
Representatives as used herein shall mean you, as Underwriters, and the terms Representatives and Underwriters shall mean either the singular or plural as the context requires. Certain terms used herein are defined in Section 22 hereof.
Section 1. Representations and Warranties.
(a) The Company and the Guarantor jointly and severally
represent and warrant to, and agree with, each Underwriter as set forth below in this Section 1.
(i) The Company is eligible under the
Shelf Procedures to file and to use a short form base shelf prospectus for a distribution of the Securities in the Province of Ontario; the Company selected the Province of Ontario as review jurisdiction for the Registration Statement and filed the
Registration Statement with the Reviewing Authority; the Company obtained a notification of clearance from the Reviewing Authority in respect of the Registration Statement; and no order suspending the distribution of the Securities has been issued
by the Reviewing Authority or any other regulatory authority or court, and no proceeding for that purpose has been initiated or, to the Company’s knowledge, is pending or threatened or contemplated by the Reviewing Authority or any other regulatory
authority or court.
(ii) The Company and the
Guarantor meet the eligibility requirements for use of Form F-10 under the Act, have filed a registration statement on Form F-10 (the file number of which is set forth in Schedule I hereto) in respect of the Securities and the Guarantees, have
appointed an agent for service of process on Form F-X in conjunction with the filing of such registration statement with the Commission and have caused the Trustee to prepare and file with the Commission a Statement of Eligibility and
Qualification on Form T-1; such registration statement and any post-effective amendment thereto have been declared effective by the Commission; any documents incorporated by reference in such registration statement, when such registration statement
became effective or when such documents were filed with the Commission, as the case may be, conformed in all material respects to the applicable requirements of the Exchange Act; and no stop order suspending the effectiveness of such registration
statement or any notice objecting to its use has been issued and no proceeding for that purpose has been initiated or, to the Company’s knowledge, threatened by the Commission.
(iii) Except for the omission of disclosure that (x) is
not applicable to the offering and sale of the Securities in the United States or (y) is permitted to be omitted from a prospectus contained in Part I of a registration statement on Form F-10 (collectively, “Omitted Disclosure”), the Base Prospectus, at the time the Reviewing Authority issued its notification of clearance for the Registration Statement, conformed in all material respects with the applicable disclosure requirements of Ontario Securities Law
(including the Shelf Procedures) that would have applied if the U.S. Final Prospectus was qualifying a public offering of the Securities in the Province of Ontario.
(iv) On each Effective Date, the
Registration Statement did, and on the date first filed in accordance with General Instruction II.L of Form F-10 and on the Closing Date, the U.S. Final Prospectus will, conform in all material respects with the applicable requirements of the Act;
except for the omission of the Omitted Disclosure, on the date first filed and on the Closing Date, the U.S. Final Prospectus will conform in all material respects with the applicable disclosure requirements of Ontario Securities Law (including the
Shelf Procedures) that would have applied if the U.S. Final Prospectus was qualifying a public offering of the Securities in the Province of Ontario; on the Closing Date, the Indentures will comply in all material respects with the applicable
requirements of the Trust Indenture Act; the Registration Statement, as of each Effective Date, did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the
statements therein not misleading; and the U.S. Final Prospectus, as of its date on its filing date and on the Closing Date, will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no representations or warranties as to (i) that part of the Registration
Statement which shall constitute the Statement of Eligibility and Qualification (Form T-1) under the Trust Indenture Act of the Trustee or (ii) the information contained in or omitted from the Registration Statement or the U.S. Final Prospectus
based upon and in conformity with information furnished in writing to the Company by or on behalf of any Underwriter through the Representatives specifically for inclusion therein; it being understood and agreed that the only such information
furnished by or on behalf of any Underwriter consists of the information described as such in Section 8(b) hereof.
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(v) As of the Time of Sale, (i) the
Disclosure Package and (ii) each electronic road show, if any, when taken together as a whole with the Disclosure Package, did not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from the Disclosure Package based upon and in conformity with information
furnished in writing to the Company by or on behalf of any Underwriter through the Representatives specifically for inclusion therein; it being understood and agreed that the only such information furnished by or on behalf of any Underwriter
consists of the information described as such in Section 8(b) hereof.
(vi) At the earliest time after the
filing of the Registration Statement that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2)) of the Securities, neither the Company nor the Guarantor was or is an Ineligible Issuer (as defined
in Rule 405), without taking account of any determination by the Commission pursuant to Rule 405 that it is not necessary that the Company or the Guarantor be considered an Ineligible Issuer. The Representatives have notified the Company of the
earliest time that an offering participant made a bona fide offer of the Securities.
(vii) Each Issuer Free Writing Prospectus
and each final term sheet prepared and filed pursuant to this Agreement does not include any information that conflicts with the information contained in the Registration Statement, including any document incorporated therein and any prospectus
supplement deemed to be a part thereof that has not been superseded or modified. If there occurs an event or development as a result of which the Disclosure Package would include an untrue statement of a material fact or would omit to state a
material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, the Company will promptly notify the Representatives. The foregoing two sentences do not apply to statements in or
omissions from the Disclosure Package based upon and in conformity with information furnished in writing to the Company by or on behalf of any Underwriter through the Representatives specifically for use therein; it being understood and agreed that
the only such information furnished by or on behalf of any Underwriter consists of the information described as such in Section 8(b) hereof.
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(viii) The Company is a reporting issuer
not in default of Ontario Securities Law and is in compliance with its obligations thereunder in all material respects.
(ix) There are no reports or information
that, in accordance with Ontario Securities Law or the Act, must be filed or made publicly available in connection with the offering of the Securities that have not been made publicly available or filed, as required (other than reports or
information required to be filed or made public after the date hereof in conformity with the Shelf Procedures).
(x) The statements in the Disclosure
Package and the U.S. Final Prospectus under the headings “Material U.S. Federal Income Tax Considerations”, “Material Canadian Federal Income Tax Considerations”, “Description of Debt Securities”, “Description of the Notes” and “Enforceability of
Certain Civil Liabilities” insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings.
(xi) The documents incorporated by
reference in any Preliminary Prospectus, when they were filed with the Reviewing Authority, conformed in all material respects with the applicable requirements of Ontario Securities Law; the documents incorporated by reference in the Base
Prospectus and any Preliminary Prospectus, as the case may be, when the Registration Statement became effective or when any Preliminary Prospectus was filed with the Commission, respectively, conformed in all material respects with the applicable
requirements of the Exchange Act; and any further documents so filed and incorporated by reference in the Base Prospectus and the U.S. Final Prospectus or any amendment or supplement thereto prior to the termination of the distribution of the
Securities, when such documents are filed with the Reviewing Authority or the Commission, will conform in all material respects with the applicable requirements of Ontario Securities Law or the requirements of the Exchange Act, as applicable.
(xii) Each of the Company and the
Guarantor is not, and after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Disclosure Package and the U.S. Final Prospectus will not be, required to register as an
“investment company” or an entity “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended, and the rules and regulations of the Commission thereunder.
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(xiii) KPMG LLP, who are reporting upon
the audited financial statements of the Company incorporated into the Disclosure Package and the U.S. Final Prospectus, are the auditors of the Company and are independent with respect to the Company within the meaning of Ontario Securities Law and
independent registered public accountants within the meaning of the Act.
(xiv) Ernst & Young LLP, who are
reporting upon the audited financial statements of Shaw Communications Inc. (“Shaw”) included in the business acquisition report dated June 7, 2023 (the “Business Acquisition Report”) incorporated into the Disclosure Package and the U.S. Final
Prospectus, were the auditors of Shaw and were independent with respect to Shaw within the meaning of applicable Alberta securities law and independent registered public accountants within the meaning of the Securities Act prior to the completion
of the Company’s acquisition of Shaw.
(xv) Each of the Company and the
Guarantor has full corporate power and authority to execute, deliver and perform its obligations under this Agreement and the Indentures.
(xvi) The consolidated financial
statements, including the notes thereto, incorporated into the Disclosure Package and the U.S. Final Prospectus present fairly the consolidated financial position of the Company and its subsidiaries as of the dates indicated, and the consolidated
results of operations and changes in financial position of the Company and its subsidiaries for the periods specified. Such financial statements have been prepared in conformity with International Financial Reporting Standards as in effect during
each such period, in each case applied on a consistent basis throughout the periods involved (except as otherwise set forth in such statements). The pro forma financial statements and the related notes thereto included in the Business Acquisition
Report incorporated into the Disclosure Package and the U.S. Final Prospectus present fairly the information shown therein and the assumptions used in the preparation thereof are reasonable and the adjustments used therein are appropriate to give
effect to the transactions and circumstances referred to therein. The selected unaudited consolidated summary financial information of the Company, the Guarantor and the other subsidiaries of the Company contained in the section entitled “Summary
of Financial Results of Long-Term Debt Guarantor” in the Company’s Management’s Discussion and Analysis for the fiscal year ended December 31, 2022, and in the section entitled “Summary of financial information of long-term debt guarantor” in the
Company’s Management’s Discussion and Analysis for the three months ended September 30, 2023, which are each incorporated by reference into the Disclosure Package and the U.S. Final Prospectus, presents fairly the information shown therein and has
been compiled on a basis consistent with that of the audited or unaudited, as applicable, consolidated financial statements incorporated by reference into the Disclosure Package and the U.S. Final Prospectus from which such information was derived
except as noted therein.
(xvii) The consolidated financial
statements of Shaw, including the notes thereto, included in the Business Acquisition Report incorporated by reference into the Disclosure Package and the U.S. Final Prospectus present fairly the consolidated financial position of Shaw and its
subsidiaries as of the dates indicated, and the consolidated results of operations and changes in financial position of Shaw and its subsidiaries for the periods specified. Such financial statements have been prepared in conformity with
International Financial Reporting Standards as in effect during each such period, in each case applied on a consistent basis throughout the periods involved (except as otherwise set forth in such statements).
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(xviii) The Company has been duly
amalgamated and is validly existing as a corporation under the Business Corporations Act (British Columbia), with corporate power and authority to own its properties and conduct its business as described
in the Disclosure Package and the U.S. Final Prospectus, and the Company is duly qualified as an extra-provincial or foreign corporation for the transaction of business under the laws of each other jurisdiction in which it owns or leases
properties, or conducts any business, so as to require such qualification, except, in each case, where the failure to so qualify in any jurisdiction is not reasonably likely, individually or in the aggregate, to have a material adverse effect on
the condition (financial or otherwise), earnings or business affairs of the Company and its subsidiaries, considered as one enterprise (a “Material Adverse Effect”).
(xix) Each significant subsidiary of the
Company as defined in Rule 1-02(w) of Regulation S-X (a “Significant Subsidiary”) has been duly organized and is validly existing as a corporation or partnership under the laws of the jurisdiction of its organization, with the corporate or
partnership, as applicable, power and authority to own its properties and conduct its business as described in the Disclosure Package and the U.S. Final Prospectus, and each Significant Subsidiary is duly qualified to transact business in each
jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except, in each case, where the failure to so qualify in any jurisdiction, is not reasonably likely, individually or in the
aggregate, to have a Material Adverse Effect.
(xx) All of the issued and outstanding
shares of the capital stock of the Company have been duly and validly authorized and issued. All of the issued and outstanding shares of each Significant Subsidiary that is a corporation have been duly and validly authorized and issued and are
fully paid and non-assessable and such shares are owned, directly or indirectly, by the Company, free and clear of all liens, encumbrances, equities or claims except as set forth in the Disclosure Package and the U.S. Final Prospectus. All of the
issued and outstanding partnership interests of each Significant Subsidiary that is a partnership have been duly and validly created and are owned, directly or indirectly, by the Company free and clear of all liens, encumbrances, equities or claims
except as set forth in the Disclosure Package and the U.S. Final Prospectus.
(xxi) Neither the Company nor any of its
Significant Subsidiaries has sustained since the date of the latest audited financial statements included or incorporated by reference in the Disclosure Package and the U.S. Final Prospectus any material loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Disclosure Package and the U.S. Final
Prospectus; and, since the respective dates as of which information is given in the Disclosure Package and the U.S. Final Prospectus otherwise than as stated therein or contemplated thereby, there has not been any material adverse change in the
condition (financial or otherwise), earnings or business affairs of the Company and its subsidiaries, considered as one enterprise, whether or not arising in the ordinary course of business (a “Material Adverse Change”).
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(xxii) Neither the Company nor any
Significant Subsidiary is (A) in violation of its articles, by-laws or other constating documents or (B) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage,
loan agreement, note, lease or other agreement or instrument to which it is a party or by which it may be bound or to which any of its properties and assets may be subject, except in the case of clause (B) for such defaults that are not reasonably
likely, individually or in the aggregate, to have a Material Adverse Effect. The execution and delivery of this Agreement and the Indentures, the incurrence of the obligations set forth herein and in the Indentures, the consummation of the
transactions contemplated in this Agreement and the Indentures and compliance with the terms hereof and thereof have been duly authorized by all necessary corporate action on the part of the Company and the Guarantor, do not and will not result in
any violation of the articles, by-laws or other constating documents of the Company or any Significant Subsidiary and do not and will not conflict with, or result in a breach of any of the terms or provisions of, or constitute a default (or an
event that with notice or lapse of time, or both, would constitute a default or permit acceleration) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Significant
Subsidiary under (1) any indenture, mortgage, loan agreement, note, lease or other agreement or instrument to which the Company or any Significant Subsidiary is a party or by which they may be bound or to which any of their properties or assets may
be subject or (2) any existing applicable law, rule, regulation, judgment, franchise, order or decree of any government, governmental instrumentality or court, domestic or foreign, having jurisdiction over the Company or any Significant Subsidiary
or any of their respective properties or assets (other than, in each case, as described in the Disclosure Package and the U.S. Final Prospectus, and except in each case for such conflicts, violations, breaches, defaults, liens, charges or
encumbrances that are not reasonably likely, individually or in the aggregate, to have a Material Adverse Effect).
(xxiii) No consent, approval,
authorization, order, permit, license, filing, registration, clearance or qualification of, or with any court or regulatory, administrative or other governmental body of Canada or any province of Canada or the United States or any individual state
of the United States or under any statute, order, rule or regulation of any such regulatory, administrative or other governmental body is required in connection with the transactions contemplated herein, except such as (1) have been made or
obtained under the Act, Ontario Securities Law, the Business Corporations Act (Ontario) and the Trust Indenture Act, (2) may be required under the blue sky laws of any jurisdiction in connection with the
purchase and distribution of the Securities by the Underwriters in the manner contemplated herein and in the Disclosure Package and the U.S. Final Prospectus and (3) will be made or obtained pursuant to Section 7(a) hereof and except for the filing
with the Reviewing Authority or the Commission of (x) this Agreement and any other supporting documents in conformity with the Shelf Procedures, (y) the Nineteenth Supplemental Indenture and (z) the Twentieth Supplemental Indenture promptly
following their execution.
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(xxiv) Except as otherwise disclosed in
the Disclosure Package and the U.S. Final Prospectus, all material tax returns required to be filed by the Company and each Significant Subsidiary have been filed, other than any filings not yet due or being contested in good faith, and all
material taxes, including withholding taxes, penalties and interest, assessments, fees and other charges due pursuant to such returns or pursuant to any assessment received by the Company or any Significant Subsidiary have been paid, other than
those not yet payable or being contested in good faith and for which adequate reserves have been provided.
(xxv) Except as disclosed in the
Disclosure Package and the U.S. Final Prospectus, there is no action, suit or proceeding before or by any government, governmental instrumentality or court, domestic or foreign, now pending or, to the knowledge of the Company, threatened against or
affecting the Company or its subsidiaries that is reasonably likely, individually or in the aggregate, to result in a Material Adverse Effect.
(xxvi) The Company and each Significant
Subsidiary has good and marketable title to all of its respective properties and assets described in the Disclosure Package and the U.S. Final Prospectus (excluding those properties and assets described in the Disclosure Package and the U.S. Final
Prospectus as being owned by other parties), owned free and clear of all liens, charges, encumbrances or restrictions, with only such exceptions as are described in the Disclosure Package and the U.S. Final Prospectus or that are not reasonably
likely, individually or in the aggregate, to have a Material Adverse Effect; and all of the leases and subleases that are material to the business of the Company or any Significant Subsidiary and under which the Company or any Significant
Subsidiary, as the case may be, holds properties described in the Disclosure Package and the U.S. Final Prospectus, are in full force and effect with only such exceptions that are not reasonably likely, individually or in the aggregate, to have a
Material Adverse Effect.
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(xxvii) Except as disclosed in the
Disclosure Package and the U.S. Final Prospectus, the Company and each Significant Subsidiary currently holds in good standing all material permits, licenses, franchises and approvals of governmental authorities and agencies necessary for the
present use, ownership and operation of its respective businesses, including all permits, licenses, franchises and approvals required pursuant to the Broadcasting Act (Canada), the Telecommunications Act (Canada), the Canadian Radio-television and Telecommunications Commission Act (Canada), the Radiocommunication Act (Canada)
and the Copyright Act (Canada) or other statutes of Canada specifically relating to the regulation of either or both of the Canadian broadcasting and/or telecommunications industries and the orders, rules,
regulations and directions promulgated pursuant to such statutes, including the Broadcasting Distribution Regulations, 1998, the Specialty Services Regulations, 1990,
as amended, the Television Broadcasting Regulations, 1987, as amended, the Radio Regulations, 1986, as amended, or any statutes or regulations of any province
specifically relating to the regulation of either or both of the Canadian broadcasting and telecommunications industries and the orders, rules, regulations and directions promulgated thereunder (collectively, the “Communications Statutes”) (except
where the failure to do so is not reasonably likely, individually or in the aggregate, to have a Material Adverse Effect), and no revocation or limitation of any such permit, license, franchise or approval is pending or, to the knowledge of the
Company, threatened and neither the Company nor any Significant Subsidiary is in default or violation of any Communications Statute or any such permit, license, franchise or approval (except where such revocation, limitation, default or violation
is not reasonably likely, individually or in the aggregate, to have a Material Adverse Effect), and the authorization, issuance and delivery of the Securities and the Guarantees and the compliance by the Company and the Guarantor with the terms of
this Agreement, the Guarantees and the Indentures do not and will not conflict with, or constitute a default under, any Communications Statute or any such permits, licenses, franchises and approvals, including terms or provisions thereof relating
to the maintenance of specified levels of Canadian ownership, as applicable. The Company and its Significant Subsidiaries, as applicable, are in compliance with the applicable Canadian ownership requirements of the Communications Statutes. Except
as disclosed in the Disclosure Package and the U.S. Final Prospectus, to the knowledge of the Company, there is no threatened or pending change in any Communications Statute that is reasonably likely, individually or in the aggregate, to have a
Material Adverse Effect.
(xxviii) The Company and each Significant
Subsidiary owns or possesses, or can acquire on reasonable terms, adequate patents, patent licenses, trademarks, service marks and trade names necessary to carry on its business as presently conducted, and neither the Company nor any Significant
Subsidiary has received any notice of infringement of or conflict with asserted rights of others with respect to any patents, patent licenses, trademarks, service marks or trade names that in the aggregate, if the subject of an unfavorable
decision, ruling or finding, is reasonably likely, individually or in the aggregate, to have a Material Adverse Effect.
(xxix) Neither the Company nor the
Guarantor has, taken, directly or indirectly, any action designed to, or that might be reasonably expected to, cause or result in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the
Securities.
(xxx) This Agreement has been duly
authorized, executed and delivered by each of the Company and the Guarantor.
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(xxxi) Each of the Base Indenture, the
Nineteenth Supplemental Indenture and the Twentieth Supplemental Indenture have been duly authorized by the Company and the Guarantor, and when the Nineteenth Supplemental Indenture and the Twentieth Supplemental Indenture are duly executed and
delivered by the Company, the Guarantor and the Trustee, the Indentures will constitute a valid and binding obligation of the Company and the Guarantor, enforceable against the Company and the Guarantor, as applicable, in accordance with the terms
of the Indentures, except as enforcement thereof may be limited by bankruptcy, insolvency, moratorium, fraudulent conveyance, reorganization or other similar laws affecting enforcement of creditors’ rights generally and except as enforcement
thereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law); the Indentures will conform in all material respects to the description thereof contained in the Disclosure
Package and the U.S. Final Prospectus; no registration, filing or recording of either Indentures under the laws of Canada or any province thereof is necessary in order to preserve or protect the validity or enforceability of the Indentures or the
Securities issued thereunder; and the Indentures have been duly qualified under the Trust Indenture Act.
(xxxii) The Securities and the Guarantees
have been duly authorized by the Company and the Guarantor, as applicable, and, when executed, authenticated, issued and delivered in the manner provided for in the Indentures and sold and paid for as provided in this Agreement, will constitute
valid and binding obligations of the Company and the Guarantor, as applicable, enforceable against the Company and the Guarantor, as applicable, in accordance with their respective terms, except as enforcement thereof may be limited by bankruptcy,
insolvency, moratorium, fraudulent conveyance, reorganization or other similar laws affecting enforcement of creditors’ rights generally and except as enforcement thereof is subject to general principles of equity (regardless of whether enforcement
is considered in a proceeding in equity or at law); the holders of the Securities and the Guarantees will be entitled to the benefits of the Indentures; the Securities have not been qualified by a prospectus for distribution in any province or
territory of Canada; and the Securities and the Guarantees will conform in all material respects to the description thereof contained in the Disclosure Package and the U.S. Final Prospectus.
(xxxiii) The Company maintains a system
of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions are recorded, as necessary to permit preparation of
financial statements in conformity with International Financial Reporting Standards and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the
recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Except as described in the Disclosure Package and the U.S. Final Prospectus, since the
end of the Company’s most recent audited fiscal year, there has been (i) no material weakness in the Company’s internal control over financial reporting (whether or not remediated) and (ii) no adverse change in the Company’s internal control over
financial reporting that has materially and adversely affected, or is reasonably likely to materially and adversely affect, the Company’s internal control over financial reporting.
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(xxxiv) The Company has established and
maintains an effective system of “disclosure controls and procedures” (as such term is defined in Rule 13a-15(e) under the Exchange Act) that (i) is designed to ensure that information relating to the Company, including its subsidiaries, required
to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported, within the periods specified in the Commission’s rules and forms and (ii) has been evaluated for
effectiveness as of the end of the last fiscal period covered by the Disclosure Package and the U.S. Final Prospectus.
(xxxv) Neither the Company nor any of
its subsidiaries nor, to the knowledge of the Company, any director or officer of the Company or any of its subsidiaries is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of the Foreign
Corrupt Practices Act of 1977, as amended (the “FCPA”), and the rules and regulations thereunder or the Corruption of Foreign Public Officials Act (Canada) (the “CFPOA”), including, without limitation,
making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of
the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA or the CFPOA and the
Company, its subsidiaries and, to the knowledge of the Company, their respective directors and officers have conducted their businesses in compliance with the FCPA or the CFPOA (other than any immaterial noncompliance that would not result in a
violation of the FCPA or CFPOA) and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
(xxxvi) The operations of the Company
and its subsidiaries are and have been conducted at all times in compliance in all material respects with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the
money laundering statutes of all applicable jurisdictions, the rules and regulations thereunder and, to the Company’s knowledge, any related or similar rules, regulations or guidelines issued, administered or enforced by any governmental agency
(collectively, the “Money Laundering Laws”) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries with respect to the Money Laundering
Laws is pending or, to the best knowledge of the Company, threatened.
(xxxvii) Neither the Company nor any of
its subsidiaries nor, to the knowledge of the Company, any director or officer of the Company or any of its subsidiaries is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department
(“OFAC”); and the Company will not directly or indirectly use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of
financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
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(b) Any certificate signed by any officer of the Company or
the Guarantor and delivered to the Underwriters or their counsel in connection with the offering of the Securities pursuant to this Agreement shall be deemed a representation and warranty by the Company or the Guarantor, as applicable, to each
Underwriter as to the matters covered thereby.
Section 2. Purchase, Sale and Delivery of the Securities. On the basis of the
representations and warranties herein contained, and subject to the terms and conditions herein set forth, the Company agrees to sell to each Underwriter, and each Underwriter, severally and not jointly, agrees to purchase from the Company, at the
purchase price set forth in Schedule I hereto, the principal amount of the Securities set forth opposite the name of such Underwriter in Schedule II hereto, plus any additional principal amount of the Securities which such Underwriter may become
obligated to purchase pursuant to the provisions of Section 12 hereof.
Section 3. Delivery and Payment. Delivery of and payment for the Securities shall be made
on the date and at the time specified in Schedule I hereto or at such time on such later date not more than three Business Days after the foregoing date as the Representatives shall designate, which date and time may be postponed by agreement
between the Representatives and the Company or as provided in Section 12 hereof (such date and time of delivery and payment for the Securities being herein called the “Closing Date”). Delivery of the Securities shall be made to the Representatives
for the respective accounts of the several Underwriters against payment by the several Underwriters through the Representatives of the purchase price thereof to or upon the order of the Company by wire transfer payable in same-day funds to an
account specified by the Company. Delivery of the Securities shall be made through the facilities of The Depository Trust Company (“DTC”) unless the Representatives shall otherwise instruct.
Section 4. Offering by Underwriters. It is understood that the several Underwriters
propose to offer the Securities for sale to the public outside Canada as set forth in the U.S. Final Prospectus.
In addition, each Underwriter (i) represents that it has not offered or sold, directly or indirectly, and agrees that, during the period of the distribution of the Securities, it will not,
directly or indirectly, offer, sell or deliver, any of the Securities in or from Canada or to any resident of Canada and (ii) agrees that it will include a comparable provision to clause (i) above of this Section 4 in any sub-underwriting, banking
group or selling group agreement or similar arrangement with respect to the Securities that may be entered into by such Underwriter.
The Underwriters shall notify the Company when the distribution of the Securities has terminated.
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Section 5. Certain Covenants of the Company and the Guarantor. The Company and the
Guarantor covenant with each Underwriter as follows:
(a) Prior to the termination of the distribution of the
Securities, the Company will not file any amendment of the Registration Statement or supplement (including the U.S. Final Prospectus or any Preliminary Prospectus) to the Base Prospectus unless the Company has furnished the Representatives and
counsel for the Underwriters a copy for the Representatives’ and such counsel’s review prior to filing and, except to the extent required for the Company to comply in a timely manner with its disclosure obligations under applicable securities
legislation and the requirements of any relevant stock exchange or otherwise required by law, rules or regulations applicable to the Company or the Guarantor, will not file any such proposed amendment or supplement to which the Representatives or
counsel for the Underwriters reasonably object promptly after being furnished a copy thereof. The Company will cause the U.S. Final Prospectus, properly completed, to be filed in a form approved by the Representatives with the Commission pursuant
to General Instruction II.L of Form F-10 not later than the Commission’s close of business on the second Business Day following the date of this Agreement. The Company will promptly advise the Representatives (i) when the U.S. Final Prospectus
shall have been filed with the Commission, (ii) when any amendment or supplement to the U.S. Final Prospectus or the Registration Statement shall have been filed with the Commission or become effective or of any request by the Commission or its
staff or the Reviewing Authority for any amendment of the Registration Statement or for any amendment or supplement to the U.S. Final Prospectus, in each case, if such amendment or supplement relates to, or directly affects, the Securities or the
offering or sale thereof, (iii) for so long as delivery of the U.S. Final Prospectus is required in connection with the offering or sale of the Securities by the Underwriters, of the issuance by the Reviewing Authority or the Commission of any stop
order suspending the effectiveness of the Registration Statement or the use of any prospectus relating to the Securities or of any notice objecting to its use or the institution or, to the Company’s knowledge, threatening of any proceeding for that
purpose and (iv) prior to the termination of the distribution of the Securities, of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction designated by the
Representatives pursuant to Section 5(g) hereof or the institution or, to the Company’s knowledge, threatening of any proceeding for such purpose. Prior to the termination of the distribution of the Securities, the Company will use its commercially
reasonable efforts to prevent the issuance of any such stop order or the occurrence of any such suspension or objection to the use of the Registration Statement or any prospectus relating to the Securities and, upon such issuance, occurrence or
notice of objection, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and
using its commercially reasonable efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) To prepare a final term sheet in the form approved by the
Representatives and attached as Schedule IV hereto and to file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of the U.S. Final
Prospectus pursuant to General Instruction II.L of Form F-10, any event occurs as a result of which the Disclosure Package would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the
statements therein in the light of the circumstances under which they were made or the circumstances then prevailing not misleading, the Company will (i) notify promptly the Representatives so that any use of the Disclosure Package may cease until
it is amended or supplemented, (ii) amend or supplement the Disclosure Package to correct such statement or omission and (iii) supply any amendment or supplement to the Representatives in such quantities as the Representatives may reasonably
request.
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(d) If, at any time when a prospectus relating to the
Securities is required to be delivered by an Underwriter or dealer under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event occurs as a result of which the U.S. Final Prospectus as then
supplemented or amended would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein in the light of the circumstances under which they were made at such time not
misleading, or if it shall be necessary, in the opinion of the Company or its counsel, to amend the Registration Statement, file a new registration statement or supplement or amend the U.S. Final Prospectus to comply with applicable Ontario
Securities Law, the Act or the Exchange Act, including in connection with use or delivery of the U.S. Final Prospectus, the Company promptly will (i) notify the Representatives of any such event, (ii) prepare and file with the Commission (and, if
applicable, the Reviewing Authority) an amendment or supplement or new registration statement, as applicable, which will correct such statement or omission or effect such compliance, (iii) to the extent applicable, use its commercially reasonable
efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the U.S. Final Prospectus and (iv) supply copies of any supplemented or
amended U.S. Final Prospectus to the Representatives in such quantities as the Representatives may reasonably request. The Company will pay all costs and expenses incident to complying with this Section 5(d) and Section 5(f) during the nine month
period following the date of this Agreement and, after such period, such costs and expenses shall be borne by the Underwriters.
(e) As soon as practicable, to the extent required, the
Company will make generally available to its security holders and to the Representatives an earnings statement or statements of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158.
(f) The Company, on behalf of itself and the Guarantor, will
furnish to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto)
and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of the Preliminary Prospectus, the U.S. Final
Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives may reasonably request.
(g) Each of the Company and the Guarantor will use its
commercially reasonable efforts, in cooperation with the Representatives, to qualify the Securities and the Guarantees for offering and sale under the applicable securities laws of such states and other jurisdictions in the United States as the
Representatives may designate and to maintain such qualifications in effect so long as required for the distribution of the Securities; provided, however that neither the Company nor the Guarantor shall be obligated to file any
general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which
it is not otherwise so subject or to amend its articles or any of its other constating documents.
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(h) Each of the Company and the Guarantor agrees that, unless
it has or shall have obtained the prior written consent of the Representatives, and each Underwriter, severally and not jointly, agrees with the Company and the Guarantor that, unless it has or shall have obtained, as the case may be, the prior
written consent of the Company, on behalf of itself and the Guarantor, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing
prospectus” (as defined in Rule 405) required to be filed by the Company or the Guarantor with the Commission or retained by the Company or the Guarantor under Rule 433, other than a free writing prospectus containing the information contained in
the final term sheet prepared and filed pursuant to Section 5(b) hereof; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the free writing prospectuses included in Schedule III
hereto and any electronic road show. Any such free writing prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” Each of the Company and the Guarantor agrees that (x) it
has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any
Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) For a period of three years after the Closing Date, upon
request, the Company and the Guarantor will furnish to the Representatives, copies of all annual reports and current reports filed with the Commission on Forms 40-F and 6-K, or such other similar forms as may be designated by the Commission, all
documents and reports filed with the applicable securities regulatory authorities in Canada (except for confidential portions of reports filed with such authorities on a confidential basis) and such other documents, reports and information as shall
be furnished by the Company to its security holders generally; provided, however, that neither the Company nor the Guarantor need furnish any such documents, reports or other information to the extent they are made publicly
available on SEDAR+ or EDGAR or any other website maintained by the Commission or the securities regulatory authorities in Canada.
(j) The Company and the Guarantor will use commercially
reasonable efforts in cooperation with the Underwriters to permit the Securities to be eligible for clearance and settlement through DTC.
(k) The Company will use the net proceeds received by it from
the sale of the Securities in the manner specified in the Disclosure Package and the U.S. Final Prospectus.
(l) Neither the Company nor the Guarantor will, without the
prior written consent of the Representatives, offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual
disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the
filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the
Exchange Act, any debt securities issued or guaranteed by the Company or the Guarantor (other than the Securities) or publicly announce an intention to effect any such transaction, until the Closing Date. The foregoing sentence shall not apply to
(a) debt securities that mature not more than 397 days from their date of issue, (b) any debt securities denominated in Canadian dollars and (c) debt securities issued to any of the Company’s subsidiaries or affiliates.
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(m) Neither the Company nor the Guarantor will, take,
directly or indirectly, any action designed to, or that might be reasonably expected to, cause or result in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
Section 6. Payment of Expenses. Except as provided in Section 5(d) or as otherwise
expressly provided in this Agreement, the Company will pay all costs and expenses incident to the performance of the Company’s and the Guarantor’s obligations under this Agreement, the Securities, the Guarantees and the Indentures, including: (a)
the preparation, printing (or reproduction) and filing with the Commission (and, as applicable, the Reviewing Authority) of the Registration Statement (including financial statements and exhibits thereto), any Preliminary Prospectus, the U.S. Final
Prospectus and each Issuer Free Writing Prospectus, and each amendment or supplement to any of them; (b) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of
the Registration Statement, any Preliminary Prospectus, the U.S. Final Prospectus and each Issuer Free Writing Prospectus, and all amendments or supplements to any of them, as may, in each case, be reasonably requested by the Representatives for
use in connection with the offering and sale of the Securities; (c) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance
and sale of the Securities; (d) any registration or qualification of the Securities and the Guarantees for offer and sale under the securities or blue sky laws of the several states designated by the Representatives pursuant to Section 5(g) hereof
(including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such registration and qualification); (e) the fees and expenses of the Company’s accountants and the fees and expenses of counsel (including
local and special counsel) for the Company and the Guarantor; (f) any fees charged by ratings agencies for the rating of the Securities and (g) all other costs and expenses incident to the performance by the Company and the Guarantor of its
obligations hereunder. It is understood, however, that, except as provided in this Section 6 and Section 8 and Section 9 hereof, the Underwriters will pay all of their own costs and expenses, including the fees of their counsel and any advertising
expenses connected with any offers and sales of the Securities the Underwriters may make.
If this Agreement is terminated by the Underwriters in accordance with the provisions of Section 7, Section 11(a)(i) or Section 12, the Company agrees to reimburse the Underwriters
(except, in the case of a termination pursuant to Section 12, a defaulting Underwriter) for all reasonable out-of-pocket expenses, including the reasonable fees and disbursements of counsel for the Underwriters.
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Section 7. Conditions of the Underwriters’ Obligations. The obligations of the
Underwriters to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company and the Guarantor contained herein as of the Time of Sale and the Closing Date, to the accuracy of the
statements of the Company and the Guarantor made in any certificates delivered to the Underwriters pursuant to the provisions hereof, to the performance by the Company and the Guarantor at or prior to the Closing Date of their respective
obligations hereunder that are required to be performed at or prior to the Closing Date and to the following additional conditions:
(a) The U.S. Final Prospectus shall have been filed with the
Commission pursuant to General Instruction II.L of Form F-10; the final term sheet contemplated by Section 5(b) hereof, and any other material required to be filed by the Company or the Guarantor pursuant to Rule 433(d) under the Act, shall have
been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or the use of any prospectus relating to the Securities or of
any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened by the Commission.
(b) At the Closing Date, each Underwriter shall have received
a signed opinion of McCarthy Tétrault LLP, Canadian counsel for the Underwriters, dated as of the Closing Date, with respect to such customary matters as the Underwriters may reasonably require. In giving such opinion, such counsel may rely, as to
all matters governed by the laws of jurisdictions other than the Province of Ontario and the federal laws of Canada applicable therein, upon the opinions of counsel satisfactory to the Underwriters and as to legal matters pertaining to the Company
and the Guarantor upon the opinion of counsel for the Company and the Guarantor. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of
the Company or the Guarantor and upon certificates of public officials. Such counsel may further state that they express no opinion as to the Communications Statutes and related matters.
(c) At the Closing Date, each Underwriter shall have received
a signed opinion and letter of Skadden, Arps, Slate, Meagher & Flom LLP, United States counsel for the Underwriters, dated as of the Closing Date, with respect to such customary matters as the Underwriters may reasonably require. Such counsel
may state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company or the Guarantor and upon certificates of public officials. Such counsel may further
state that they express no opinion as to the Communications Statutes and related matters.
(d) At the Closing Date, each Underwriter shall have received
(i) a signed opinion of Davies Ward Phillips & Vineberg LLP, Canadian counsel for the Company, which opinion will be limited to the applicable laws of the Province of Ontario, including the federal laws of Canada applicable therein, and (ii) a
signed opinion of Fasken Martineau Du-Moulin LLP, British Columbia counsel for the Company, which opinion will be limited to the applicable laws of the Province of British Columbia, including the federal laws of the Canada applicable therein, in
each case dated as of the Closing Date, in a form and with respect to such customary matters as may be reasonably satisfactory to the Underwriters. In giving such opinion, such counsel may state that, insofar as such opinion involves factual
matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company or the Guarantor and upon certificates of public officials. Such counsel may further state that they express no opinion as to the Communications
Statutes and related matters.
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(e) At the Closing Date, each Underwriter shall have received
a signed opinion and letter of Cravath, Swaine & Moore LLP, United States counsel for the Company and the Guarantor, dated as of the Closing Date, in a form and with respect to such customary matters as may be reasonably satisfactory to the
Underwriters. Such counsel may state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company or the Guarantor and upon certificates of public officials.
Such counsel may further state that they express no opinion as to the Communications Statutes and related matters.
(f) At the Closing Date, the Underwriters shall have received
a certificate from Dean Shaikh, Senior Vice-President, Regulatory Affairs, dated as of the Closing Date, in form and substance satisfactory to the Underwriters and counsel for the Underwriters, to the effect set forth in Annex A hereto. In
delivering such certificate, such officer may rely, to the extent he deems appropriate in the circumstances, upon certificates of officers of the Company or the Guarantor and upon certificates of public officials.
(g) At the Closing Date, the Underwriters shall have received
a certificate of any two Vice Presidents of the Company and any Vice President of the Guarantor, in each case dated as of the Closing Date, to the effect that the signers of such certificate have examined the Registration Statement, the Disclosure
Package, the U.S. Final Prospectus and any supplements or amendments thereto, as well as each electronic road show used in connection with the offering of the Securities, the Securities, the Guarantees, the Indentures and this Agreement and that,
to the best of such signer’s knowledge after due investigation and not in a personal capacity: (1) the Disclosure Package, as of the Time of Sale, did not contain an untrue statement of a material fact or omit to state a material fact necessary to
make the statements therein, in light of the circumstances under which they were made, not misleading, (2) there has not been, since the dates as of which information is given in the Disclosure Package and the U.S. Final Prospectus, a Material
Adverse Change, (3) the Company or the Guarantor, as applicable, has in all material respects complied with all agreements and satisfied all conditions to be performed or satisfied by it under this Agreement at or prior to the Closing Date and (4)
the other representations and warranties of the Company or the Guarantor, as applicable, set forth in Section 1(a) hereof are true and correct as though expressly made at and as of the Closing Date.
(h) On the date hereof and at the Closing Date, the
Underwriters shall have received a certificate of Glenn Brandt, Chief Financial Officer of the Company, in form and substance reasonably satisfactory to the Underwriters, with respect to certain financial information contained in the Disclosure
Package, and, with respect to the certificate delivered on the Closing Date, the U.S. Final Prospectus.
(i) On the date hereof and at the Closing Date, the
Underwriters shall have received from KPMG LLP a letter, in form and substance reasonably satisfactory to the Underwriters, containing statements and information of the type ordinarily included in accountant’s “comfort letters” to underwriters with
respect to the Company’s financial statements and certain financial information contained in the Disclosure Package, and, with respect to the letter delivered on the Closing Date, the U.S. Final Prospectus.
(j) On the date hereof and at the Closing Date, the
Underwriters shall have received from Ernst & Young LLP a letter, in form and substance reasonably satisfactory to the Underwriters, containing statements and information of the type ordinarily included in accountant’s “comfort letters” to
underwriters with respect to Shaw’s financial statements and certain financial information contained in the Business Acquisition Report incorporated by reference into the Disclosure Package, and, with respect to the letter delivered on the Closing
Date, the U.S. Final Prospectus.
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(k) Subsequent to the Time of Sale and prior to the Closing
Date, there shall not have been any downgrading, nor any notice given of any intended or potential downgrading or of a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s long
term debt, including the Securities, by S&P Global Ratings, a division of S&P Global Inc., Moody’s Investors Service, Inc., Fitch Ltd. or, in each case, any successor to the rating agency business thereof.
(l) At the Closing Date, counsel for the Underwriters shall
have been furnished with all such documents, certificates and opinions as they may reasonably request for the purpose of enabling them to pass upon the issuance and sale of the Securities as contemplated in this Agreement and the matters referred
to in Section 7(b) and Section 7(c) and in order to evidence the accuracy and completeness of any of the representations, warranties or statements of the Company or the Guarantor, the performance of any of the agreements of the Company or the
Guarantor, or the fulfillment of any of the conditions herein contained.
(m) Prior to the Closing Date, the Securities shall be
eligible for clearance and settlement through DTC.
If any of the conditions specified in this Section 7 shall not have been fulfilled when and as required by this Agreement, this Agreement may be terminated by the Underwriters on notice to
the Company at any time at or prior to the Closing Date, and such termination shall be without liability of any party to any other party except as provided in Section 6 hereof. Notwithstanding any such termination, the provisions of Sections 1, 6, 8,
9, 10, 13, 14, 16, 17, 18, 19, 20, 21 and 22 hereof shall remain in effect.
Section 8. Indemnification.
(a) The Company and the Guarantor, jointly and severally,
agree to indemnify and hold harmless each Underwriter, its affiliates and each person, if any, who controls any Underwriter within the meaning of Section 15 of the Act or Section 20 of the Exchange Act as follows:
(i) against any and all loss, liability,
claim, damage and expense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the U.S. Final
Prospectus, any Issuer Free Writing Prospectus or the information contained in the final term sheet required to be prepared and filed pursuant to Section 5(b) hereof, or in any amendment thereof or supplement thereto, or the omission or alleged
omission therefrom of a material fact required to be stated therein or necessary to make the statements therein (in the case of the Base Prospectus, any Preliminary Prospectus, the U.S. Final Prospectus, any Issuer Free Writing Prospectus or the
information contained in the final term sheet required to be prepared and filed pursuant to Section 5(b) hereof, in light of the circumstances under which they were made), not misleading;
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(ii) against any and all loss, liability,
claim, damage and expense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission; provided that any such settlement is effected with the written consent of the Company and the Guarantor; and
(iii) against any and all expense
whatsoever, as incurred (including the fees and disbursements of counsel chosen by the Representatives), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with written information furnished to the Company or the Guarantor by any Underwriter through the Representatives expressly for use in the Registration Statement, the Base
Prospectus, any Preliminary Prospectus, the U.S. Final Prospectus, any Issuer Free Writing Prospectus or the information contained in the final term sheet required to be prepared and filed pursuant to Section 5(b) hereto, or in any amendment thereof
or supplement thereto; it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the information described as such in Section 8(b) hereof.
(b) Each Underwriter, severally and not jointly, agrees to
indemnify and hold harmless the Company and the Guarantor, their respective directors, each of their respective officers who signs the Registration Statement and each person, if any, who controls the Company or the Guarantor, as applicable, within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to
untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement, the Base Prospectus, any Preliminary Prospectus, the U.S. Final Prospectus, any Issuer Free Writing Prospectus or the information
contained in the final term sheet required to be prepared and filed pursuant to Section 5(b) hereto, or in any amendment thereof or supplement thereto, in reliance upon and in conformity with written information furnished to the Company or the
Guarantor by such Underwriter through the Representatives expressly for use in the Base Prospectus, any Preliminary Prospectus, the U.S. Final Prospectus, any Issuer Free Writing Prospectus or the information contained in the final term sheet
required to be prepared and filed pursuant to Section 5(b) hereto, or in any amendment thereof or supplement thereto. The Company and the Guarantor acknowledge that the statements set forth in the last paragraph of the cover page regarding delivery
of the Securities and, under the heading “Underwriting,” (i) the names listed in the table in the second paragraph of the text, (ii) the third and fourth sentences of the third paragraph related to concessions and (iii) the sixth, seventh and
eighth paragraphs related to stabilization and penalty bids in any Preliminary Prospectus and the U.S. Final Prospectus constitute the only information furnished in writing by or on behalf of the several Underwriters for inclusion in any
Preliminary Prospectus, the U.S. Final Prospectus or any Issuer Free Writing Prospectus.
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(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action commenced against it in respect of which indemnity may be sought hereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability
hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this Section 8. In the case of parties indemnified pursuant to
Section 8(a) above, counsel to the indemnified parties shall be selected by the Representatives, and, in the case of parties indemnified pursuant to Section 8(b) above, counsel to the indemnified parties shall be selected by the Company. An
indemnifying party may participate at its own expense in the defense of any such action; provided, however, that counsel to the indemnifying party shall not (except with the consent of the indemnified party) also be counsel to the
indemnified party. In no event shall the indemnifying parties be liable for fees and expenses of more than one counsel (in addition to any local counsel) separate from their own counsel for all indemnified parties in connection with any one action
or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances. No indemnifying party shall, without the prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could
be sought under this Section 8 or Section 9 hereof (whether or not the indemnified parties are actual or potential parties thereto), unless such settlement, compromise or consent (i) includes an unconditional release of each indemnified party from
all liability arising out of such litigation, investigation, proceeding or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
Section 9. Contribution. If the indemnification provided for in Section 8 hereof is for
any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such
losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, (i) in such proportion as is appropriate to reflect the relative benefits received by the Company and the Guarantor on the one hand and the
Underwriters on the other hand from the offering of the Securities pursuant to this Agreement or (ii) if the allocation provided by clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the Company and the Guarantor on the one hand and of the Underwriters on the other hand in connection with the statements or omissions which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company and the Guarantor on the one hand and the Underwriters on the other hand in connection with the offering of the Securities pursuant to this
Agreement shall be deemed to be in the same respective proportions as the total net proceeds from the offering of the Securities pursuant to this Agreement (before deducting expenses) received by the Company and the total underwriting commission
received by the Underwriters bear to the aggregate public offering price of the Securities.
The relative fault of the Company and the Guarantor on the one hand and the Underwriters on the other hand shall be determined by reference to, among other things, whether any such untrue
or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Company or the Guarantor or by the Underwriters and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
21
The Company, the Guarantor and the Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 9 was determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 9. The aggregate amount of losses, liabilities, claims,
damages and expenses incurred by an indemnified party and referred to above in this Section 9 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 9, no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Securities
underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged
omission.
No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.
For purposes of this Section 9, each person, if any, who controls an Underwriter within the meaning of Section 15 of the Act or Section 20 of the Exchange Act shall have the same rights to
contribution as such Underwriter, and each director of the Company or the Guarantor, each of their respective officers who signs the Registration Statement and each person, if any, who controls the Company or the Guarantor, as applicable, within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act shall have the same rights to contribution as the Company or the Guarantor, as applicable. The Underwriters’ respective obligations to contribute pursuant to this Section 9 are
several in proportion to the principal amount of the Securities set forth opposite their respective names in Schedule II hereto and not joint.
Section 10. Representations, Warranties and Agreements to Survive Delivery.
The representations, warranties, indemnities, agreements and other statements of the Company, the Guarantor or the officers set forth in or made pursuant to this Agreement will remain
operative and in full force and effect regardless of any investigation made by or on behalf of the Company, the Guarantor or any Underwriter or any controlling person of any Underwriter and will survive delivery of and payment for the Securities.
Section 11. Termination of Agreement.
(a) The Representatives may terminate this Agreement on
behalf of themselves and the Underwriters, by notice to the Company, at any time at or prior to the Closing Date, (i) if there has been, since the time of execution of this Agreement or since the respective dates as of which information is given in
the Disclosure Package and the U.S. Final Prospectus, a Material Adverse Change, or (ii) if there has occurred any material adverse change in the financial markets in the United States or Canada, any outbreak of hostilities or escalation thereof or
other calamity or crisis or any change or development involving a prospective change in national or international political, financial or economic conditions, in each case the effect of which is such as to make it, in the judgment of the
Representatives, impracticable to proceed with the offering or delivery of the Securities as contemplated by the Disclosure Package or the U.S. Final Prospectus (exclusive of any amendment or supplement thereto subsequent to the date hereof), or
(iii) if trading in any securities of the Company has been suspended by the Commission, any securities commission or securities regulatory authority in Canada, or if trading generally on the New York Stock Exchange or the Toronto Stock Exchange has
been suspended or materially limited, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by any such exchange or by order of the Commission, any securities commission or
securities regulatory authority in Canada, the Financial Industry Regulatory Authority, the New York Stock Exchange or the Toronto Stock Exchange or any other governmental authority or (iv) if a banking moratorium has been declared by United States
federal, New York State or Canadian federal authorities.
22
(b) If this Agreement is terminated pursuant to this Section,
such termination shall be without liability of any party to any other party, except to the extent provided in Section 6 hereof. Notwithstanding any such termination, the provisions of Sections 1, 6, 8, 9, 10, 13, 14, 16, 17, 18, 19, 20, 21 and 22
hereof shall remain in effect.
Section 12. Default by One or More of the Underwriters. If one or more of the
Underwriters shall fail at the Closing Date to purchase the Securities which it or they are obligated to purchase under this Agreement (the “Defaulted Securities”), the Representatives shall have the right, within 24 hours thereafter, to make
arrangements for one or more of the non-defaulting Underwriters, to purchase all, but not less than all, of the Defaulted Securities in such amounts as may be agreed upon and upon the terms herein set forth; if, however, the Representatives shall
not have completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10%
of the aggregate principal amount of the Securities to be purchased hereunder, the non-defaulting Underwriters shall be obligated, each severally and not jointly, to purchase the full amount thereof in the proportions that their respective
underwriting obligations hereunder bear to the underwriting obligations of all non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the
aggregate principal amount of the Securities to be purchased hereunder, this Agreement shall terminate without liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination of this Agreement, either the Underwriters or the Company shall have the right to postpone the Closing Date for a
period not exceeding seven days in order to effect any required changes in the Registration Statement and the U.S. Final Prospectus or in any other documents or arrangements. As used herein, the term “Underwriter” includes any person substituted for
a defaulting Underwriter under this Section 12.
23
Section 13. Agent for Service; Submission to Jurisdiction; Waiver of Immunities. By the
execution and delivery of this Agreement, each of the Company and the Guarantor (i) acknowledges that it will, prior to the Closing Date and by separate written instrument, irrevocably designate and appoint CT Corporation System (“CT Corporation”),
28 Liberty Street, New York, New York 10005 (and any successor entity), as its authorized agent upon which process may be served in any suit or proceeding arising out of or relating to this Agreement, the Securities or the Indentures that may be
instituted in any federal or state court in the State of New York or brought under federal or state securities laws, (ii) submits to the non-exclusive jurisdiction of any such court in any such suit or proceeding and (iii) agrees that service of
process upon CT Corporation (or any successor) and written notice of said service to the Company and the Guarantor (mailed or delivered in accordance with Section 14), shall be deemed in every respect effective service of process upon the Company
or the Guarantor, as applicable, in any such suit or proceeding. The Company and the Guarantor further agree to take any and all action, including the execution and filing of any and all such documents and instruments, as may be necessary to
continue such designation and appointment of CT Corporation (or any successor) in full force and effect so long as any of the Securities shall be outstanding.
To the extent that the Company or the Guarantor has or hereafter may acquire any immunity from jurisdiction of any court or from any legal process (whether through service of notice,
attachment prior to judgment, attachment in aid of execution, execution or otherwise) with respect to itself or its property, it hereby irrevocably waives such immunity in respect of its obligations under the above-referenced documents, to the extent
permitted by law.
The provisions of this Section 13 shall survive any termination of this Agreement, in whole or in part.
Section 14. Notices. All communications hereunder shall be in writing and shall be
mailed, hand delivered, couriered or facsimiled and confirmed to the parties hereto as follows:
If to the Representatives:
|
BofA Securities, Inc.
|
|
|
114 West 47th Street
|
|
|
NY8-114-07-01
|
|
|
New York, New York 10036
|
|
|
Facsimile: (212) 901-7881
|
|
|
Email: dg.hg_ua_notices@bofa.com
|
|
|
Attention: High Grade Transaction Management/Legal
|
|
|
Citigroup Global Markets Inc.
|
|
|
388 Greenwich Street
|
|
|
New York, New York 10013
|
|
|
Fax: (646) 291-1469
|
|
|
Attention: General Counsel
|
|
|
Mizuho Securities USA LLC
|
|
|
1271 Avenue of the Americas
|
|
|
New York, New York 10020
|
|
|
Facsimile: (212)-205-7812
|
|
|
Email: legalnotices@mizuhogroup.com
|
|
|
Attention: Debt Capital Markets
|
|
24
|
MUFG Securities Americas Inc.
|
|||
|
1221 Avenue of the Americas, 6th Floor
|
|||
|
New York, New York 10020
|
|||
|
Facsimile: (646) 434-3455
|
|||
|
Attention: Capital Markets Group
|
|||
|
Scotia Capital (USA) Inc.
|
|||
|
250 Vesey Street
|
|||
|
New York, New York 10281
|
|||
|
Email: US.Legal@scotiabank.com; TAG@scotiabank.com
|
|||
|
Attention: Debt Capital Markets
|
|||
|
SMBC Nikko Securities America, Inc.
|
|||
|
277 Park Avenue, 5th Floor
|
|||
|
New York, New York 10172
|
|||
|
E-mail: prospectus@smbcnikko-si.com
|
|||
|
Attention: Debt Capital Markets
|
|||
|
with a copy to:
|
|||
|
Skadden, Arps, Slate, Meagher & Flom LLP
|
|||
|
One Manhattan West
|
|||
|
New York, New York 10001-8602
|
|||
|
Email: Ryan.Dzierniejko@skadden.com
|
|||
|
Attention: Ryan J. Dzierniejko
|
|||
|
and to:
|
|||
|
McCarthy Tétrault LLP
|
|||
|
66 Wellington Street West
|
|||
|
Toronto, Ontario, Canada M5X 1E6
|
|||
|
Email: AParker@mccarthy.ca and JBrimmer@mccarthy.ca
|
|||
|
Attention: Andrew Parker; Jo-Anna Brimmer
|
|||
|
If to the Company or the Guarantor:
|
|||
|
Rogers Communications Inc.
|
|||
|
333 Bloor Street East
|
|||
|
Toronto, Ontario, Canada M4W 1G9
|
|||
|
Emails: [REDACTED]
|
|||
|
Attention: [REDACTED]
|
|||
|
with a copy to:
|
|||
|
Cravath, Swaine & Moore LLP
|
|||
|
Worldwide Plaza, 825 Eighth Avenue
|
|||
|
New York, New York 10019
|
|||
|
Email: JZavaglia@cravath.com and DDolan@cravath.com
|
|||
|
Attention: Joseph D. Zavaglia; Douglas Dolan
|
|||
25
|
and to:
|
|
|
Davies Ward Phillips & Vineberg LLP
|
|
|
155 Wellington Street West
|
|
|
Toronto, Ontario, Canada M5V 3J7
|
|
|
Email: dwilson@dwpv.com
|
|
|
Attention: David T. Wilson
|
Section 15. No Fiduciary Duty. The Company and the Guarantor hereby acknowledge that (a)
the purchase and sale of the Securities pursuant to this Agreement is an arm’s-length commercial transaction between the Company and the Guarantor, on the one hand, and the Underwriters and any affiliate through which it may be acting, on the
other, (b) the Underwriters are acting as principal and not as an agent or fiduciary of the Company or the Guarantor and (c) the Company’s engagement of the Underwriters in connection with the offering and the process leading up to the offering is
as independent contractors and not in any other capacity. Furthermore, the Company and the Guarantor agree that they are solely responsible for making their own judgments in connection with the offering (irrespective of whether any of the
Underwriters has advised or is currently advising the Company or the Guarantor on related or other matters). The Company and the Guarantor agree that they will not claim that the Underwriters have rendered advisory services of any nature or
respect, or owe an agency, fiduciary or similar duty to the Company or the Guarantor, in connection with such transaction or the process leading thereto.
Section 16. Integration. This Agreement supersedes all prior agreements and
understandings (whether written or oral) among the Company, the Guarantor and the Underwriters, or any of them, with respect to the subject matter hereof.
26
Section 17. Parties. This Agreement is made solely for the benefit of the Company, the
Guarantor and the Underwriters and, to the extent expressed, any person controlling the Company, the Guarantor, the Underwriters, the directors and the officers of the Company and the Guarantor and any person referred to in Section 8 and 9, and in
each case their executors, administrators, successors and assigns, and no other person shall acquire or have any right under or by virtue of this Agreement. The term “successors and assigns” shall not include any purchaser, as such purchaser, of
the Securities from the Underwriters.
Section 18. Governing Law and Time. This Agreement shall be governed by the law of the
State of New York. Specified times of the day refer to New York City time.
Section 19. Waiver of Jury Trial. THE COMPANY AND THE
GUARANTOR HEREBY IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 20. Counterparts. This Agreement may be executed in one or more counterparts and
delivered by facsimile or portable document format (PDF), and when a counterpart has been so executed and delivered by each party, all such counterparts taken together shall constitute one and the same agreement. Counterparts may be delivered via
facsimile, electronic mail (including any electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic Signatures and Records Act or other applicable law, e.g., www.docusign.com) or other
transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
Section 21. Recognition of the U.S. Special Resolution Regimes.
(a) In the event that any Underwriter that is a Covered
Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer from such Underwriter of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer
would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States.
(b) In the event that any Underwriter that is a Covered
Entity or a BHC Act Affiliate of such Underwriter becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against such Underwriter are permitted to be exercised to no greater
extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States or a state of the United States.
As used in this Section 21:
“BHC Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k).
“Covered Entity” means any of the following:
27
(i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);
(ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or
(iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“U.S. Special Resolution Regime” means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the Dodd-Frank Wall Street Reform and
Consumer Protection Act and the regulations promulgated thereunder.
Section 22. Definitions. The terms that follow, when used in this Agreement, shall have
the meanings indicated.
“2029 Indenture” shall have the meaning set forth in the first paragraph of this Agreement.
“2034 Indenture” shall have the meaning set forth in the first paragraph of this Agreement.
“Act” shall mean the Securities Act of 1933, as amended, and the rules and regulations of the Commission promulgated thereunder.
“Base Indenture” shall have the meaning set forth in the first paragraph of this Agreement.
“Base Prospectus” shall mean the Short Form Base Shelf Prospectus of the Company dated as of July 26, 2023 and filed as Part I of the Registration Statement.
“Business Day” shall mean any day other than a Saturday, a Sunday or a legal holiday or a day on which banking institutions or trust companies are authorized or
obligated by law to close in New York, New York or Toronto, Ontario.
“Closing Date” shall have the meaning set forth in Section 3 hereof.
“Commission” shall mean the U.S. Securities and Exchange Commission.
“Communications Statutes” shall have the meaning set forth in Section 1(a)(xxviii) hereof.
“Disclosure Package” shall mean (i) the Base Prospectus contained in the Registration Statement at the Time of Sale, (ii) the Preliminary Prospectus, if any, used most
recently prior to the Time of Sale, (iii) the Issuer Free Writing Prospectuses, if any, identified in Schedule III hereto and (iv) the final term sheet prepared and filed pursuant to Section 5(b) hereof.
28
“Effective Date” shall mean each date and time that the Registration Statement and any post-effective amendment or amendments thereto became or becomes effective.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated thereunder.
“Free Writing Prospectus” shall mean a free writing prospectus, as defined in Rule 405.
“Indentures” shall have the meaning set forth in the first paragraph of this Agreement.
“Issuer Free Writing Prospectus” shall mean an issuer free writing prospectus, as defined in Rule 433.
“Material Adverse Change” shall have the meaning set forth in Section 1(a)(xxi) hereof.
“Material Adverse Effect” shall have the meaning set forth in Section 1(a)(xviii) hereof.
“Nineteenth Supplemental Indenture” shall have the meaning set forth in the first paragraph of this Agreement.
“Ontario Securities Law” shall mean the applicable securities laws in the Province of Ontario and the rules and regulations under such laws, together with the applicable
published policy statements, instruments, blanket orders, blanket rulings and notices of the Reviewing Authority.
“Permitted Free Writing Prospectus” shall have the meaning set forth in Section 5(h) hereof.
“Preliminary Prospectus” shall mean any preliminary prospectus supplement to the Base Prospectus which is used to offer the Securities prior to the filing of the U.S.
Final Prospectus, together with the Base Prospectus.
“Registration Statement” shall mean the registration statement on Form F-10 filed with the Commission on July 26, 2023, including the Base Prospectus, exhibits,
financial statements and any prospectus supplement relating to the Securities that is filed with the Commission and deemed part of such registration statement, and in the event any post-effective amendment thereto becomes effective prior to the
Closing Date, shall also mean such registration statement as so amended.
“Reviewing Authority” shall mean the Ontario Securities Commission.
“Rule 158”, “Rule 164”, “Rule 172”, “Rule 405”, “Rule 430B” and “Rule 433” refer to such rules and regulations under the Act.
“Shelf Procedures” shall mean the rules and procedures that would have been applicable to the transactions contemplated hereby if the Company were to have filed a short
form base shelf prospectus with the Reviewing Authority for distribution of the Securities in the Province of Ontario, as established under National Instrument 44-101 and National Instrument 44-102 promulgated by the Canadian Securities
Administrators and adopted by the Reviewing Authority for the distribution of securities on a continuous or delayed basis.
29
“Supplemental Indentures” shall have the meaning set forth in the first paragraph of this Agreement.
“Time of Sale” shall have the meaning set forth in Schedule I hereto.
“Trustee” shall mean The Bank of New York Mellon.
“Trust Indenture Act” shall mean the Trust Indenture Act of 1939, as amended, and the rules and regulations of the Commission promulgated thereunder.
“Twentieth Supplemental Indenture” shall have the meaning set forth in the first paragraph of this Agreement.
“U.S. Final Prospectus” shall mean the prospectus supplement to the Base Prospectus relating to the Securities filed pursuant to General Instruction II.L of Form F-10
after the Time of Sale, together with the Base Prospectus.
Any reference herein to the Base Prospectus, a Preliminary Prospectus, the Registration Statement, or the U.S. Final Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein at the applicable time pursuant to the applicable Shelf Procedures, the Exchange Act or the Act, as applicable; and any reference herein to the terms “amend”, “amendment”, “amended”, “supplemented” or “supplement”
with respect to the Base Prospectus, a Preliminary Prospectus, the Registration Statement, the U.S. Final Prospectus or the Disclosure Package shall be deemed to include the filing of any document pursuant to the applicable Shelf Procedures, the
Exchange Act or the Act after the Effective Date of the Registration Statement or the issue date of the Base Prospectus, any Preliminary Prospectus or the U.S. Final Prospectus, as the case may be, which filing is incorporated, or is otherwise deemed
to be incorporated, therein by reference.
[Remainder of this page intentionally left blank]
30
If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this Agreement and your acceptance shall
represent a binding agreement among the Company, the Guarantor and the several Underwriters.
| Very truly yours, | ||||
|
ROGERS COMMUNICATIONS INC.
|
||||
|
|
By:
|
/s/ Glenn Brandt | ||
| Name: | Glenn Brandt | |||
| Title: | Chief Financial Officer | |||
|
|
By:
|
/s/ Bruce Wagner | ||
| Name: | Bruce Wagner | |||
| Title: |
Vice President, Treasurer
|
|||
|
ROGERS COMMUNICATIONS CANADA INC.
|
||||
|
|
By:
|
/s/ Glenn Brandt | ||
| Name: | Glenn Brandt | |||
| Title: | Chief Financial Officer | |||
|
|
By:
|
/s/ Bruce Wagner | ||
| Name: | Bruce Wagner | |||
| Title: |
Vice President, Treasurer
|
|||
[Signature Page to Underwriting Agreement]
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
|
BOFA SECURITIES, INC.
|
||||
|
|
By:
|
/s/ R Keith Harman | ||
| Authorized Signatory | ||||
| Name: |
R Keith Harman
|
|||
| Title: |
Managing Director
|
|||
| For itself and the other several Underwriters named in | ||||
| Schedule II to the foregoing Agreement. | ||||
[Signature Page to Underwriting Agreement]
|
CITIGROUP GLOBAL MARKETS INC.
|
||||
|
|
By:
|
/s/ Adam D. Bordner | ||
| Authorized Signatory | ||||
| Name: |
Adam D. Bordner
|
|||
| Title: |
Managing Director
|
|||
| For itself and the other several Underwriters named in | ||||
| Schedule II to the foregoing Agreement. | ||||
[Signature Page to Underwriting Agreement]
|
MIZUHO SECURITIES USA LLC
|
||||
|
|
By:
|
/s/ Justin T. Surma | ||
| Authorized Signatory | ||||
| Name: |
Justin T. Surma
|
|||
| Title: |
Managing Director
|
|||
| For itself and the other several Underwriters named in | ||||
| Schedule II to the foregoing Agreement. | ||||
[Signature Page to Underwriting Agreement]
|
MUFG SECURITIES AMERICAS INC.
|
||||
|
|
By:
|
/s/ Richard Testa | ||
| Authorized Signatory | ||||
| Name: |
Richard Testa
|
|||
| Title: |
Managing Director
|
|||
| For itself and the other several Underwriters named in | ||||
| Schedule II to the foregoing Agreement. | ||||
[Signature Page to Underwriting Agreement]
|
SCOTIA CAPITAL (USA) INC.
|
||||
|
|
By:
|
/s/ Michael Ravanesi | ||
| Authorized Signatory | ||||
| Name: |
Michael Ravanesi
|
|||
| Title: |
Managing Director & Head
|
|||
| For itself and the other several Underwriters named in | ||||
| Schedule II to the foregoing Agreement. | ||||
[Signature Page to Underwriting Agreement]
|
SMBC NIKKO SECURITIES AMERICA, INC.
|
||||
|
|
By:
|
/s/ Thomas Bausano | ||
| Authorized Signatory | ||||
| Name: |
Thomas Bausano
|
|||
| Title: |
Managing Director
|
|||
| For itself and the other several Underwriters named in | ||||
| Schedule II to the foregoing Agreement. | ||||
[Signature Page to Underwriting Agreement]
SCHEDULE I
5.000% Senior Notes due 2029
5.300% Senior Notes due 2034
|
Underwriting Agreement:
|
Dated February 7, 2024
|
|
|
Registration Statement No.:
|
333-273187
|
|
|
Representatives:
|
BofA Securities, Inc., Citigroup Global Markets Inc., Mizuho Securities USA LLC, MUFG Securities Americas Inc., Scotia Capital (USA) Inc. and SMBC Nikko Securities America, Inc.
|
|
|
Title:
|
5.000% Senior Notes due 2029
5.300% Senior Notes due 2034
|
|
|
Principal Amount:
|
2029 Notes: US$1,250,000,000
2034 Notes: US$1,250,000,000
|
|
|
Purchase Price:
|
2029 Notes: 99.114%, plus accrued interest, if any, from February 9, 2024 to the Closing Date
2034 Notes: 98.469%, plus accrued interest, if any, from February 9, 2024 to the Closing Date
|
|
|
Sinking Fund Provisions:
|
None
|
|
| Redemption Provisions: | ||
| |
Make-whole Call: | 2029 Notes: Callable prior to January 15, 2029 (the “2029 Par Call Date”) at the greater of par or (a) the sum of the present values of the remaining scheduled payments of principal and interest thereon discounted to the redemption date (assuming the 2029 Notes to be redeemed are scheduled to mature on the 2029 Par Call Date) on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the treasury rate plus 15 basis points less (b) accrued and unpaid interest on such 2029 Notes to the date of redemption, plus, in either case, accrued and unpaid interest thereon to the redemption date |
| 2034 Notes: Callable prior to November 15, 2033 (the “2034 Par Call Date”) at the greater of par or (a) the sum of the present values of the remaining scheduled payments of principal and interest thereon discounted to the redemption date (assuming the 2034 Notes to be redeemed are scheduled to mature on the 2034 Par Call Date) on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the treasury rate plus 20 basis points less (b) accrued and unpaid interest on such 2034 Notes to the date of redemption, plus, in either case, accrued and unpaid interest thereon to the redemption date | ||
| Par Call: | 2029 Notes: Callable on or after January 15, 2029 at 100% of the principal amount of the 2029 Notes, plus accrued and unpaid interest thereon to the redemption date | |
| 2034 Notes: Callable on or after November 15, 2033 at 100% of the principal amount of the 2034 Notes, plus accrued and unpaid interest thereon to the redemption date | ||
|
Closing Date, Time and Location:
|
February 9, 2024 at 9:00 a.m. New York time at Cravath, Swaine & Moore LLP, Worldwide Plaza, 825 Eighth Avenue, New York, NY
10019-7475
|
|
|
Type of Offering:
|
Non-delayed
|
|
|
Time of Sale:
|
5:15 p.m. on February 7, 2024
|
|
I-1
SCHEDULE II
Securities to be Purchased
|
Underwriters
|
Principal Amount of 2029
Notes to be Purchased
|
|
|
BofA Securities, Inc.
|
US$150,000,000
|
|
|
Citigroup Global Markets Inc.
|
US$150,000,000
|
|
|
Mizuho Securities USA LLC
|
US$150,000,000
|
|
|
Scotia Capital (USA) Inc.
|
US$150,000,000
|
|
|
J.P. Morgan Securities LLC
|
US$125,000,000
|
|
|
MUFG Securities Americas Inc.
|
US$84,375,000
|
|
|
SMBC Nikko Securities America, Inc.
|
US$84,375,000
|
|
|
Wells Fargo Securities, LLC
|
US$125,000,000
|
|
|
Barclays Capital Inc.
|
US$37,500,000
|
|
|
BMO Capital Markets Corp.
|
US$37,500,000
|
|
|
CIBC World Markets Corp.
|
US$37,500,000
|
|
|
National Bank of Canada Financial Inc.
|
US$43,750,000
|
|
|
RBC Capital Markets, LLC
|
US$37,500,000
|
|
|
TD Securities (USA) LLC
|
US$37,500,000
|
|
|
Total
|
US$1,250,000,000
|
|
Underwriters
|
Principal Amount of 2034
Notes to be Purchased
|
|
|
BofA Securities, Inc.
|
US$150,000,000
|
|
|
Citigroup Global Markets Inc.
|
US$150,000,000
|
|
|
MUFG Securities Americas Inc.
|
US$150,000,000
|
|
|
SMBC Nikko Securities America, Inc.
|
US$150,000,000
|
|
|
J.P. Morgan Securities LLC
|
US$125,000,000
|
|
|
Mizuho Securities USA LLC
|
US$84,375,000
|
|
|
Scotia Capital (USA) Inc.
|
US$84,375,000
|
|
|
Wells Fargo Securities, LLC
|
US$125,000,000
|
|
|
Barclays Capital Inc.
|
US$37,500,000
|
|
|
BMO Capital Markets Corp.
|
US$37,500,000
|
|
|
CIBC World Markets Corp.
|
US$37,500,000
|
|
|
National Bank of Canada Financial Inc.
|
US$43,750,000
|
|
|
RBC Capital Markets, LLC
|
US$37,500,000
|
|
|
TD Securities (USA) LLC
|
US$37,500,000
|
|
|
Total
|
US$1,250,000,000
|
II-1
SCHEDULE III
Schedule of Free Writing Prospectuses included in the Disclosure Package
| 1. |
Free Writing Prospectus, dated February 7, 2024, relating to the 5.000% Senior Notes due 2029 and 5.300% Senior Notes due 2034.
|
III-1
SCHEDULE IV
Rogers Communications Inc.
5.000% Senior Notes due 2029
5.300% Senior Notes due 2034
Dated February 7, 2024
The following information supplements (or supersedes, to the extent that it is inconsistent therewith) the Preliminary Prospectus
Supplement dated February 7, 2024 relating to the below described securities (the “Preliminary Prospectus Supplement”). Capitalized terms used but not defined in this pricing term sheet shall have the
meaning ascribed to them in the Preliminary Prospectus Supplement.
|
Issuer:
|
Rogers Communications Inc.
|
|
Guarantor:
|
Rogers Communications Canada Inc.
|
|
Trade Date:
|
February 7, 2024
|
|
Settlement Date:
|
February 9, 2024 (T+2)
|
|
Aggregate Principal Amount:
|
2029 Notes: US$1,250,000,000
2034 Notes: US$1,250,000,000
|
|
Expected Ratings*:
|
2029 Notes:
Moody’s Investors Service Inc.: Baa3/Stable
S&P Global Ratings: BBB-/Negative
Fitch Ratings Ltd.: BBB-/Stable
DBRS: BBBL
2034 Notes:
Moody’s Investors Service Inc.: Baa3/Stable
S&P Global Ratings: BBB-/Negative
Fitch Ratings Ltd.: BBB-/Stable
DBRS: BBBL
|
|
Maturity Date:
|
2029 Notes: February 15, 2029
2034 Notes: February 15, 2034
|
|
Coupon:
|
2029 Notes: 5.000%
2034 Notes: 5.300%
|
|
Public Offering Price:
|
2029 Notes: 99.714%, plus accrued interest, if any, from February 9, 2024
2034 Notes: 99.119%, plus accrued interest, if any, from February 9, 2024
|
|
Yield to Maturity:
|
2029 Notes: 5.065%
2034 Notes: 5.415%
|
IV-1
|
Spread to Benchmark Treasury:
|
2029 Notes: + 100 basis points
2034 Notes: + 130 basis points
|
|
|
Benchmark Treasury:
|
2029 Notes: 4.000% due January 31, 2029
2034 Notes: 4.500% due November 15, 2033
|
|
|
Benchmark Treasury Price and Yield:
|
2029 Notes: 99-223/4 / 4.065%
2034 Notes: 103-02 / 4.115%
|
|
|
Interest Payment Dates:
|
2029 Notes: February 15 and August 15, commencing August 15, 2024
2034 Notes: February 15 and August 15, commencing August 15, 2024
|
|
|
Record Dates:
|
2029 Notes: February 1 and August 1 of each year, beginning on August 1, 2024
2034 Notes: February 1 and August 1 of each year, beginning on August 1, 2024
|
|
|
Optional Redemption:
|
The Company has the option to redeem some or all of the Notes of each series prior to their stated maturity date at any time and from time to time. See “Description of Notes —Optional
Redemption” in the Preliminary Prospectus Supplement.
|
|
|
Redemption Provisions:
|
||
| Make-whole Call: | 2029 Notes: Callable prior to January 15, 2029 at the greater of par or (a) the sum of the present values of the remaining scheduled payments of principal and interest thereon discounted to the redemption date (assuming the 2029 Notes to be redeemed are scheduled to mature on the Par Call Date applicable to such 2029 Notes) on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the treasury rate plus 15 basis points less (b) accrued and unpaid interest on such 2029 Notes to the date of redemption, plus, in either case, accrued and unpaid interest thereon to the redemption date | |
| 2034 Notes: Callable prior to November 15, 2033 at the greater of par or (a) the sum of the present values of the remaining scheduled payments of principal and interest thereon discounted to the redemption date (assuming the 2034 Notes to be redeemed are scheduled to mature on the Par Call Date applicable to such 2034 Notes) on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the treasury rate plus 20 basis points less (b) accrued and unpaid interest on such 2034 Notes to the date of redemption, plus, in either case, accrued and unpaid interest thereon to the redemption date | ||
| Par Call: | 2029 Notes: Callable on or after January 15, 2029 at 100% of the principal amount of the 2029 Notes, plus accrued and unpaid interest thereon to the redemption date | |
| 2034 Notes: Callable on or after November 15, 2033 at 100% of the principal amount of the 2034 Notes, plus accrued and unpaid interest thereon to the redemption date | ||
IV-2
|
CUSIP / ISIN:
|
2029 Notes: 775109 DE8 / US775109DE81
2034 Notes: 775109 DF5 / US775109DF56
|
|
Denomination:
|
The Notes will be issued in minimum denominations of US$2,000 and integral multiples of US$1,000 above that amount.
|
|
Joint Book-Running Managers:
|
BofA Securities, Inc.
Citigroup Global Markets Inc.
J.P. Morgan Securities LLC
Mizuho Securities USA LLC
MUFG Securities Americas Inc.
Scotia Capital (USA) Inc.
SMBC Nikko Securities America, Inc.
Wells Fargo Securities, LLC
|
|
Co-Managers:
|
Barclays Capital Inc.
BMO Capital Markets Corp.
CIBC World Markets Corp.
National Bank of Canada Financial Inc.
RBC Capital Markets, LLC
TD Securities (USA) LLC
|
* * *
*Note: A securities rating is not a recommendation to buy, sell or hold securities and may be subject to revision or withdrawal at any time.
The issuer has filed a registration statement (including a prospectus) with the SEC for the offering to which this communication relates. Before you invest,
you should read the prospectus in that registration statement and other documents the issuer has filed with the SEC for more complete information about the issuer and this offering. You may get these documents for free by visiting EDGAR on the
SEC’s website at www.sec.gov. Alternatively, the issuer, any underwriter or any dealer participating in the offering will arrange to send you the prospectus if you request it by calling BofA Securities, Inc. toll-free at 1-800-294-1322, Citigroup Global Markets Inc. toll-free at 1-800-831-9146, Mizuho Securities USA LLC toll-free at 1-866-271-7403, MUFG Securities Americas Inc. toll-free at
1-877-649-6848, Scotia Capital (USA) Inc. toll-free at 1-800-372-3930, or SMBC Nikko Securities America, Inc. toll-free at 1-888-868-6856.
IV-3
ANNEX A
Form of Officer’s Certificate
OFFICER’S CERTIFICATE PURSUANT TO SECTION 7(f)
OF THE UNDERWRITING AGREEMENT
I, Dean Shaikh, Senior Vice-President, Regulatory Affairs of Rogers Communications Inc. (the “Company”), hereby certify,
pursuant to Section 7(f) of the underwriting agreement dated February 7, 2024 (the “Underwriting Agreement”) among the Company, Rogers Communications Canada Inc., and BofA Securities, Inc., Citigroup Global
Markets Inc., Mizuho Securities USA LLC, MUFG Securities Americas Inc., Scotia Capital (USA) Inc. and SMBC Nikko Securities America, Inc., as representatives of the several underwriters named therein, in my capacity as an officer of the Company, as
follows:
1. I do not know of any Communications Statutes, or any pending or threatened legal or
governmental proceedings by or before any court or judicial or administrative board or tribunal or any governmental body with respect to the regulation of the Canadian cable television, wireless communications or telecommunications industries,
material to the operation of the business of the Company and its Significant Subsidiaries, considered as one enterprise, that are not described or referred to in the Disclosure Package, the U.S. Final Prospectus and the Registration Statement.
2. To my knowledge, (A) each of the Company and its Significant Subsidiaries currently
holds in good standing all permits, licenses, franchises and approvals of governmental authorities and agencies necessary for the present use, ownership and operation of its business required pursuant to the Communications Statutes and no
revocation or limitation of any such permit, license, franchise or approval is pending or threatened (except where the failure to hold, or the revocation or limitation of, such permit, license, franchise or approval would not, individually or in
the aggregate, have a Material Adverse Effect), (B) neither the Company nor any of its Significant Subsidiaries are in default or in violation of any such permit, license, franchise or approval (except where such default would not, individually or
in the aggregate, have a Material Adverse Effect) and (C) the authorization, issuance and delivery of the Securities and the Guarantees and the compliance by the Company and the Guarantor with the terms of the Indentures do not and, assuming there
is no material change in existing circumstances from the date hereof, will not, conflict with, or result in a breach of any of the terms or provisions of, or constitute a default under, any of such permits, licenses, franchises and approvals,
including terms or provisions thereof relating to the maintenance of specified levels of Canadian ownership of the Company and its Significant Subsidiaries.
A-1
3. Each of the Company and its Significant Subsidiaries that requires a broadcasting
license for the present use, ownership and operations of its business pursuant to the Broadcasting Act (Canada) is Canadian within the meaning of the Direction to the
CRTC (Ineligibility of Non-Canadians) and is therefore eligible under the Direction to be issued broadcasting licenses pursuant to the Broadcasting Act (Canada) and to receive amendments and
renewals thereto. Each of the Company and its Significant Subsidiaries who is a telecommunications common carrier (within the meaning of the Telecommunications Act (Canada)) is a Canadian carrier within the
meaning of the Telecommunications Act (Canada) and is therefore eligible under section 16 of the Telecommunications Act (Canada) to operate as a
telecommunications common carrier in Canada.
4. Except as disclosed in the Disclosure Package, the U.S. Final Prospectus and the
Registration Statement, to my knowledge, there is no threatened or pending change in the Communications Statutes that could have a Material Adverse Effect.
5. The execution and delivery by the Company and its Significant Subsidiaries of, and
the compliance by the Company and its Significant Subsidiaries with their respective obligations under the Underwriting Agreement, the Securities, the Guarantees, the Indentures, and the consummation of the transactions contemplated therein do not
and, assuming there is no material change in existing circumstances from the date hereof, will not, result in any violation of, and do not and, assuming there is no material change in existing circumstances from the date hereof, will not conflict
with, or result in a breach of any of the terms or provisions of, or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default or permit acceleration) under, or result in the creation or imposition
of, any lien, charge or encumbrance upon any properties or assets of the Company or its Significant Subsidiaries under (A) any of the Communications Statutes or (B) to my knowledge, any judgment, order or decree of any government, governmental,
regulatory or administrative agency, authority, commission or instrumentality or court having jurisdiction, pursuant to the Communications Statutes.
6. All material aspects of the regulation of the cable television, wireless
communications and telecommunications industries as they pertain to the businesses of the Company and its Significant Subsidiaries described in the Disclosure Package, the U.S. Final Prospectus and the Registration Statement are subject to the
exclusive constitutional jurisdiction of the Parliament of Canada and hence are governed by the laws of Canada.
A-2
7. No consent, approval, permit, authorization, filing, recording, license, exemption,
order, registration, qualification or other requirement under the Communication Statutes or any order, rule or regulation thereunder known to me and applicable to the Company or its Significant Subsidiaries is required for the sale of the
Securities, the consummation of the transactions contemplated by the Underwriting Agreement, the Securities, the Guarantees and the Indentures or in connection with the execution, delivery and performance by and enforcement against the Company or
its Significant Subsidiaries of any of the Securities, the Guarantees or the Indentures, except such consents, approvals, permits, authorizations, filings, recordings, licenses, exemptions, orders, registrations or qualifications as have been
obtained.
8. The statements which relate to (A) the Communications Statutes, (B) governmental
franchises and licenses issued to the Company or its Significant Subsidiaries pursuant to the Communications Statutes or otherwise issued in connection with the regulation of the Canadian cable television, wireless communications or
telecommunications industries and (C) legal or other proceedings by or before any court or judicial or administrative board or tribunal or other governmental proceedings with respect to the regulation of the Canadian cable television, wireless
communications or telecommunications industries in the Disclosure Package, the U.S. Final Prospectus and the Registration Statement, in each case, fairly summarize the matters described therein and, to my knowledge, do not fail to disclose a
material fact concerning the subject matter thereof.
Capitalized terms used but not defined herein, unless otherwise indicated herein, shall have the meanings attributed to such terms in the Underwriting Agreement.
A-3
Exhibit 99.2
Execution Version
ROGERS COMMUNICATIONS INC.,
as issuer of the Notes,
as issuer of the Notes,
ROGERS COMMUNICATIONS CANADA INC.,
as Guarantor
as Guarantor
and
THE BANK OF NEW YORK MELLON,
as Trustee
as Trustee
________________________________________
NINETEENTH SUPPLEMENTAL INDENTURE
Dated as of February 9, 2024
Dated as of February 9, 2024
to
INDENTURE
Dated as of August 6, 2008
________________________________________
5.00% Senior Notes due 2029
TABLE OF CONTENTS
|
PAGE
|
||
|
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
|
||
|
SECTION 101
|
DEFINITIONS
|
2
|
|
SECTION 102
|
OTHER DEFINITIONS
|
10
|
|
SECTION 103
|
EFFECT OF SUPPLEMENTAL INDENTURE
|
10
|
|
SECTION 104
|
INDENTURE REMAINS IN FULL FORCE AND EFFECT
|
11
|
|
SECTION 105
|
INCORPORATION OF INDENTURE
|
11
|
|
SECTION 106
|
COUNTERPARTS
|
11
|
|
SECTION 107
|
EFFECT OF HEADINGS AND TABLE OF CONTENTS
|
11
|
|
SECTION 108
|
SUCCESSORS AND ASSIGNS
|
11
|
|
SECTION 109
|
SEPARABILITY CLAUSE
|
11
|
|
SECTION 110
|
BENEFITS OF SUPPLEMENTAL INDENTURE
|
12
|
|
SECTION 111
|
GOVERNING LAW
|
12
|
|
SECTION 112
|
NOTICES, ETC., TO TRUSTEE AND COMPANY
|
12
|
|
ARTICLE TWO
FORM OF THE NOTES
|
||
|
SECTION 201
|
FORMS GENERALLY
|
12
|
|
SECTION 202
|
FORM OF FACE OF NOTE
|
13
|
|
SECTION 203
|
FORM OF REVERSE OF NOTE
|
16
|
|
SECTION 204
|
ASSIGNMENT FORM; CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION OF TRANSFER RESTRICTED NOTES
|
20
|
|
SECTION 205
|
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
|
22
|
|
ARTICLE THREE
THE NOTES
|
||
|
SECTION 301
|
TITLE AND TERMS
|
22
|
|
SECTION 302
|
DENOMINATIONS
|
23
|
|
SECTION 303
|
NOTES TO BE SECURED IN CERTAIN EVENTS
|
23
|
|
SECTION 304
|
DISCHARGE
|
24
|
|
SECTION 305
|
TRANSFER AND EXCHANGE OF DEFINITIVE NOTES FOR DEFINITIVE NOTES
|
25
|
|
SECTION 306
|
TRANSFER OF A DEFINITIVE NOTE FOR A BENEFICIAL INTEREST IN A GLOBAL NOTE
|
25
|
i
|
SECTION 307
|
TRANSFER AND EXCHANGE OF GLOBAL NOTES
|
25
|
|
SECTION 308
|
CANCELLATION OR ADJUSTMENT OF GLOBAL NOTE
|
26
|
|
SECTION 309
|
OBLIGATIONS WITH RESPECT TO TRANSFERS AND EXCHANGES OF NOTES
|
26
|
|
SECTION 310
|
NO OBLIGATION OF THE TRUSTEE
|
27
|
|
SECTION 311
|
NON-COMPLIANT TRANSFERS NULL AND VOID
|
27
|
|
SECTION 312
|
DEFINITIVE NOTES
|
27
|
|
ARTICLE FOUR
REMEDIES UPON CHANGE IN CONTROL
|
||
|
SECTION 401
|
ADDITIONAL EVENT OF DEFAULT
|
28
|
|
SECTION 402
|
ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT
|
30
|
|
SECTION 403
|
RESERVED
|
31
|
|
SECTION 404
|
CHANGE IN CONTROL OFFER
|
31
|
|
ARTICLE FIVE
ADDITIONAL COVENANTS
|
||
|
SECTION 501
|
RESTRICTED SUBSIDIARIES
|
33
|
|
SECTION 502
|
LIMITATION ON SECURED DEBT
|
34
|
|
SECTION 503
|
LIMITATION ON SALE AND LEASEBACK TRANSACTIONS
|
34
|
|
SECTION 504
|
LIMITATION ON RESTRICTED SUBSIDIARY DEBT
|
34
|
|
SECTION 505
|
WAIVER OF CERTAIN COVENANTS
|
35
|
|
ARTICLE SIX
CHANGE IN CONTROL PROVISIONS
|
||
|
SECTION 601
|
EFFECT OF CHANGE IN CONTROL PURCHASE NOTICE
|
35
|
|
SECTION 602
|
DEPOSIT OF CHANGE IN CONTROL PURCHASE PRICE
|
36
|
|
SECTION 603
|
REPAYMENT TO THE COMPANY
|
36
|
|
ARTICLE SEVEN
GUARANTEE
|
||
|
SECTION 701
|
GUARANTEE
|
37
|
|
SECTION 702
|
RELEASE OF GUARANTOR
|
39
|
|
SECTION 703
|
AMALGAMATION, CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
|
40
|
|
SECTION 704
|
PAYMENT OF ADDITIONAL AMOUNTS
|
41
|
|
SECTION 705
|
RIGHT OF REDEMPTION; ELECTION TO REDEEM; NOTICE TO TRUSTEE
|
43
|
ii
|
SECTION 706
|
PERSONS DEEMED OWNERS
|
43
|
|
ARTICLE EIGHT
AMENDMENTS TO INDENTURE
|
||
|
SECTION 801
|
AMENDMENT TO INDENTURE SECTION 106
|
44
|
|
SECTION 802
|
AMENDMENT TO INDENTURE SECTION 115
|
44
|
|
SECTION 803
|
AMENDMENT TO INDENTURE SECTION 401
|
45
|
|
SECTION 804
|
AMENDMENT TO INDENTURE SECTION 401
|
45
|
|
SECTION 805
|
AMENDMENT TO INDENTURE ARTICLE FIVE
|
45
|
|
SECTION 806
|
AMENDMENT TO INDENTURE SECTION 701
|
46
|
|
SECTION 807
|
AMENDMENT TO INDENTURE SECTION 906
|
46
|
|
SECTION 808
|
AMENDMENT TO INDENTURE SECTION 603
|
47
|
|
SECTION 809
|
AMENDMENT TO INDENTURE SECTION 907
|
47
|
|
SECTION 810
|
AMENDMENT TO INDENTURE SECTION 1001
|
49
|
|
SECTION 811
|
AMENDMENT TO INDENTURE SECTION 1004
|
50
|
|
SECTION 812
|
AMENDMENT TO INDENTURE SECTION 1005
|
50
|
|
SECTION 813
|
MISCELLANEOUS AMENDMENTS
|
52
|
iii
NINETEENTH SUPPLEMENTAL INDENTURE dated as of February 9, 2024 (this “Supplemental Indenture”), among Rogers Communications Inc., a corporation organized under the laws of the Province
of British Columbia (hereinafter called the “Company”), Rogers Communications Canada Inc., a corporation organized under the laws of Canada (hereinafter called “RCCI”), and The Bank of New York Mellon, a New York banking corporation, as trustee
(hereinafter called the “Trustee”).
WHEREAS, the Company and the Trustee are parties to an indenture dated as of August 6, 2008 (as the same may from time to time be supplemented or amended (other than by a Series
Supplement), the “Indenture”);
WHEREAS, the Company and the Trustee have previously entered into (i) a Series Supplement dated as of August 6, 2008 pursuant to which the Company issued U.S.$1,400,000,000 aggregate
principal amount of 6.80% Senior Notes due 2018; (ii) a Series Supplement dated as of August 6, 2008 pursuant to which the Company issued U.S.$350,000,000 aggregate principal amount of 7.50% Senior Notes due 2038; (iii) a Series Supplement dated as
of March 7, 2013 pursuant to which the Company issued U.S.$500,000,000 aggregate principal amount of 3.00% Senior Notes due 2023, (iv) a Series Supplement dated as of March 7, 2013 pursuant to which the Company issued U.S.$500,000,000 aggregate
principal amount of 4.50% Senior Notes due 2043; (v) a Series Supplement dated as of October 2, 2013 pursuant to which the Company issued U.S.$850,000,000 aggregate principal amount of 4.10% Senior Notes due 2023; (vi) a Series Supplement dated as
of October 2, 2013 pursuant to which the Company issued U.S.$650,000,000 aggregate principal amount of 5.45% Senior Notes due 2043; (vii) a Series Supplement dated as of March 10, 2014 pursuant to which the Company issued U.S.$1,050,000,000
aggregate principal amount of 5.00% Senior Notes due 2044; (viii) a Series Supplement dated as of December 8, 2015 pursuant to which the Company issued U.S.$700,000,000 aggregate principal amount of 3.625% Senior Notes due 2025; (ix) a Series
Supplement dated as of November 4, 2016 pursuant to which the Company issued U.S.$500,000,000 aggregate principal amount of 2.90% Senior Notes due 2026; (x) a Series Supplement dated as of February 8, 2018 pursuant to which the Company issued
U.S.$750,000,000 aggregate principal amount of 4.300% Senior Notes due 2048; (xi) a Series Supplement dated as of April 30, 2019 pursuant to which the Company issued U.S.$1,250,000,000 aggregate principal amount of 4.350% Senior Notes due 2049;
(xii) a Series Supplement dated as of November 12, 2019 pursuant to which the Company issued U.S.$1,000,000,000 aggregate principal amount of 3.700% Senior Notes due 2049; (xiii) a Series Supplement dated June 22, 2020 pursuant to which the Company
issued U.S.$750,000,000 aggregate principal amount of Floating Rate Senior Notes due 2022; (xiv) a Series Supplement dated as of March 11, 2022 pursuant to which the Company issued U.S.$1,000,000,000 aggregate principal amount of 2.95% Senior Notes
due 2025; (xv) a Series Supplement dated as of March 11, 2022 pursuant to which the Company issued U.S.$1,300,000,000 aggregate principal amount of 3.20% Senior Notes due 2027; (xvi) a Series Supplement dated as of March 11, 2022 pursuant to which
the Company issued U.S.$2,000,000,000 aggregate principal amount of 3.80% Senior Notes due 2032; (xvii) a Series Supplement dated as of March 11, 2022 pursuant to which the Company issued U.S.$750,000,000 aggregate principal amount of 4.50% Senior
Notes due 2042; and (xviii) a Series Supplement dated as of March 11, 2022 pursuant to
1
which the Company issued U.S.$2,000,000,000 aggregate principal amount of 4.55% Senior Notes due 2052;
WHEREAS, the Company, RCCI (formerly known as Rogers Cable & Data Centres Inc.) and the Trustee have previously entered into a First Amending Supplemental Indenture dated as of
January 1, 2016 pursuant to which the Series Supplement in each of clause (i) through (viii) above was supplemented and amended to, among other things, provide for the assumption of the guarantee thereunder by RCCI;
WHEREAS, concurrently with the execution of this Supplemental Indenture, the Company and the Trustee are entering into a Series Supplement dated as of the date hereof pursuant to which
the Company will issue $1,250,000,000 aggregate principal amount of 5.30% Senior Notes due 2034;
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 Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel of the Company, in each case complying with Sections 101, 103, 104, 204 and 803 of
the Indenture; and
WHEREAS, pursuant to the Indenture, the Board of Directors has duly authorized the establishment of the 5.00% Senior Notes due 2029 of the Company (the “Notes”) with the form, terms and
conditions as hereinafter set forth.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are acknowledged by the parties hereto, the parties hereto agree, for the equal and
proportionate benefit of all Holders of the Notes, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
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. For greater certainty, notwithstanding the Company’s adoption of IFRS 16,
Leases, lease liabilities with respect to leases that were classified as operating leases under prior accounting standards do not constitute “Capital Lease Obligations” or “Debt” as defined in the Indenture for purposes of the Notes.
2
“Additional Notes” means additional Notes created and issued by the Company after the Issue Date in accordance with this Supplemental Indenture having the same terms and conditions under
this Supplemental Indenture as the Initial Notes (except for the issue date and, if applicable, the date from which interest accrues and the date of the first payment of interest thereon).
“Applicable Basis Points” means 15 basis points.
“Applicable Procedures” means, with respect to any transfer or exchange of or for beneficial interests in any Global Note, the rules and procedures of the Depositary for such Global
Note, Euroclear and/or Clearstream (each a “Clearing Agency”), in each case to the extent applicable to such transaction and as in effect from time to time.
“Attributable Debt” means, as of the date of its determination, the present value (discounted semi-annually at the interest rate implicit in the terms of the lease) of the obligation of
a lessee for rental payments pursuant to any Sale and Leaseback Transaction (reduced by the amount of the rental obligations of any sublessee of all or part of the same property) during the remaining term of such Sale and Leaseback Transaction
(including any period for which the lease relating thereto has been extended), such rental payments not to include amounts payable by the lessee for maintenance and repairs, insurance, taxes, assessments and similar charges and for contingent rates
(such as those based on sales); provided, however, that in the case of any Sale and Leaseback Transaction in which the lease is terminable by the lessee upon the
payment of a penalty, Attributable Debt shall mean the lesser of the present value of (i) the rental payments to be paid under such Sale and Leaseback Transaction until the first date (after the date of such determination) upon which it may be so
terminated plus the then applicable penalty upon such termination and (ii) the rental payments required to be paid during the remaining term of such Sale and Leaseback Transaction (assuming such termination provision is not exercised).
“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).
“Board of Directors” means, with respect to the Company, either the board of directors of the Company or any committee of that board duly authorized to act and, with respect to any other
Person, the board of directors or committee of such Person serving, or appointed by such Person to perform, a substantially similar function.
“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.
“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
3
Person. To the extent necessary to comply with the requirements of the provisions of Trust Indenture Act Sections 310 through 317 as they are applicable to the Company, the term “Company” shall include any
other obligor with respect to the Notes for the purposes of complying with such provisions.
“Company Request” or “Company Order” means a written request or order signed in the name of the Company by at least one Authorized Officer.
“Consolidated Net Tangible Assets” means the Consolidated Tangible Assets of any Person, less such Person’s current liabilities.
“Consolidated Tangible Assets” means the Tangible Assets of any Person after eliminating inter-company items, determined on a Consolidated basis in accordance with GAAP including
appropriate deductions for any minority interest in Tangible Assets of such Person’s Restricted Subsidiaries.
“Definitive Note” means a certificated Initial Note or Additional Note registered in the name of the Holder thereof and issued in accordance with Article Three hereof substantially in
the form set forth in Section 202, except that such Initial Note or Additional Note shall not bear the Global Notes Legend (as defined below) and shall not have the “Schedule of Exchanges of Interests in the Global Note” attached thereto.
“Depositary” or “DTC” means the Depositary Trust Company.
“Disqualified Stock” means any Capital Stock of the Company or any Restricted Subsidiary which, by its terms (or by the terms of any security into which it is convertible or for which it
is exchangeable at the option of the holder) or upon the happening of any event, matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof, in whole or in part, on
or prior to the Maturity Date for cash or securities constituting Debt; provided that shares of Preferred Stock of the Company or any Restricted Subsidiary that are issued with the benefit of provisions
requiring a change in control offer to be made for such shares in the event of a change in control of the Company or of such Restricted Subsidiary, which provisions have substantially the same effect as the relevant provisions of Sections 401 and
404 herein, shall not be deemed to be “Disqualified Stock” solely by virtue of such provisions. For purposes of this definition, the term “Debt” includes Inter−Company Subordinated Debt.
“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 specified by the Trustee as available for use in connection with its services hereunder.
“Excluded Assets” means (i) all assets of any Person other than the Company or a Restricted Subsidiary; (ii) Investments in the Capital Stock of an Unrestricted Subsidiary held by the
Company or a Restricted Subsidiary; (iii) any Investment by the Company or a Restricted Subsidiary to the extent paid for with cash or other property that constitutes Excluded Assets or Excluded Securities, so long as at the time of acquisition
thereof and after giving effect thereto there exists no Default or Event of Default; and (iv) proceeds of the sale of any Excluded Assets
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or Excluded Securities received by the Company or any Restricted Subsidiary from a Person other than the Company or a Restricted Subsidiary.
“Excluded Securities” means any Debt, Preferred Stock or Common Stock issued by the Company, or any Debt or Preferred Stock issued by any Restricted Subsidiary, in either case to an
Affiliate thereof other than the Company or a Restricted Subsidiary, provided that, at all times, such Excluded Securities shall:
(i) in the case of Debt not owed to the Company or a Restricted Subsidiary, constitute Inter−Company Subordinated Debt;
(ii) in the case of Debt, not be guaranteed by the Company or any Restricted Subsidiary unless such guarantee shall constitute Inter−Company Subordinated Debt;
(iii) in the case of Debt, not be secured by any assets or property of the Company or any Restricted Subsidiary;
(iv) in the case of Debt or Preferred Stock, provide by its terms that interest or dividends thereon shall be payable only to the extent that, after giving effect
to any such payment, no Default or Event of Default shall have occurred and be continuing; and
(v) in the case of Debt or Preferred Stock, provide by its terms that no payment (other than payments in the form of Excluded Securities) on account of principal
(at maturity, by operation of sinking fund or mandatory redemption or otherwise) or other payment on account of redemption, repurchase, retirement or acquisition of such Excluded Security shall be permitted until the earlier of (x) the Stated
Maturity for the principal of the Notes or (y) the date on which all principal of, premium, if any, and interest on the Notes shall have been duly paid or provided for in full.
“Exempted Secured Debt” means any Debt secured by any Lien or any conditional sale or other title retention agreement:
(i) incurred or entered into on or after the Issue Date to finance the acquisition, improvement or construction of such property and either secured by Purchase
Money Obligations or Liens placed on such property within 180 days of acquisition, improvement or construction and securing Debt not to exceed 2.5% of the Company’s Consolidated Net Tangible Assets at any time outstanding;
(ii) on Principal Property or the stock or Debt of Restricted Subsidiaries and existing at the time of acquisition of the property, stock or Debt;
(iii) owing to the Company or any other Restricted Subsidiary; or
(iv) existing at the time a corporation or other Person becomes a Restricted Subsidiary.
“Existing Notes” means any of the 4.35% Senior Notes due 2024, 4.00% Senior Notes due 2024, 2.95% Senior Notes due 2025, 3.10% Senior Notes due 2025, 3.625% Senior Notes
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due 2025, 5.65% Senior Notes due 2026, 2.90% Senior Notes due 2026, 3.65% Senior Notes due 2027, 3.80% Senior Notes due 2027, 3.20% Senior Notes due 2027, 5.70% Senior Notes due 2028, 4.40% Senior Notes
due 2028, 3.30% Senior Notes due 2029, 3.75% Senior Notes due 2029, 3.25% Senior Notes due 2029, 5.80% Senior Notes due 2030, 2.90% Senior Notes due 2030, 3.80% Senior Notes due 2032, 4.25% Senior Notes due 2032, 8.75% Senior Debentures due 2032,
5.90% Senior Notes due 2033, 7.50% Senior Notes due 2038, 6.68% Senior Notes due 2039, 6.75% Senior Notes due 2039, 6.11% Senior Notes due 2040, 6.56% Senior Notes due 2041, 4.50% Senior Notes due 2042, 4.50% Senior Notes due 2043, 5.45% Senior
Notes due 2043, 5.00% Senior Notes due 2044, 4.30% Senior Notes due 2048, 4.25% Senior Notes due 2049, 4.35% Senior Notes due 2049, 3.70% Senior Notes due 2049, 4.55% Senior Notes due 2052 and 5.25% Senior Notes due 2052, in each case for which the
Company is a co−obligor or an obligor, as applicable.
“Fitch” means Fitch Ratings, Inc. or any successor ratings agency.
“Generally Accepted Accounting Principles” or “GAAP” means generally accepted accounting principles, in effect in Canada, as established by the
Chartered Professional Accountants of Canada and as applied from time to time by the Company in the preparation of its consolidated financial statements.
“Government Obligations” means securities that are:
(i) direct obligations of the United States of America for the payment of which its full faith and credit is pledged, or
(ii) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America, the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United States of America.
“Guarantor” means (i) RCCI unless and until the Guarantee is released in accordance with its terms and (ii) any other Person that provides a guarantee in respect of any of the Company’s
obligations in respect of the Notes, pursuant to a supplement to this Supplemental Indenture or otherwise, unless and until such guarantee is released in accordance with its terms.
“Indenture” has the meaning set forth in the recitals of this Supplemental Indenture.
“Initial Notes” means the U.S.$1,250,000,000 aggregate principal amount of Notes issued on the Issue Date.
“Investment” means (i) directly or indirectly, any advance, loan or capital contribution to, the purchase of any stock, bonds, notes, debentures or other securities of, the acquisition,
by purchase or otherwise, of all or substantially all of the business or assets or stock or other evidence of beneficial ownership of, any Person or making of any investment in any Person, (ii) the designation of any Restricted Subsidiary as an
Unrestricted Subsidiary and (iii) the transfer of any assets or properties from the Company or a Restricted Subsidiary to any Unrestricted Subsidiary, other than the transfer of assets or properties made in the ordinary
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course of business. Investments shall exclude extensions of trade credit on commercially reasonable terms in accordance with normal trade practices.
“Investment Grade Rating” means a rating equal to or higher than BBB- (or the equivalent) by S&P, Baa3 (or the equivalent) by Moody’s or BBB- (or the equivalent) by Fitch.
“Issue Date” means February 9, 2024, the initial issue date of the Notes.
“Moody’s” means Moody’s Investors Service, Inc. or any successor ratings agency.
“Net Tangible Assets” means the Tangible Assets of any Person, less such Person’s current liabilities.
“Notes” has the meaning set forth in the recitals of this Supplemental Indenture. For the avoidance of doubt, “Notes” shall include the Additional Notes, if any.
“Par Call Date” means January 15, 2029.
“Permitted Liens” means any of the following Liens
(i) Liens for taxes, rates and assessments not yet due or, if due, the validity of which is being contested diligently and in good faith by appropriate proceedings
by the Company or any of the Restricted Subsidiaries (as applicable); and Liens for the excess of the amount of any past due taxes for which a final assessment has not been received over the amount of such taxes as estimated and paid;
(ii) the Lien of any judgment rendered which is being contested diligently and in good faith by appropriate proceedings by the Company, or any of the Restricted
Subsidiaries, as the case may be, and which does not have a material adverse effect on the ability of the Company and the Restricted Subsidiaries to operate the business or operations of the Company;
(iii) Liens on Excluded Assets;
(iv) pledges or deposits under worker’s compensation laws, unemployment insurance laws or similar legislation or good faith deposits in connection with bids,
tenders, contracts (other than for the payment of Debt) or leases or deposits of cash or bonds or other direct obligations of the United States, Canada or any Canadian province to secure surety or appeal bonds or deposits as security for
contested taxes or import duties or for the payment of rents;
(v) Liens imposed by law, such as carriers’, warehousemen’s and mechanics’ liens, or other liens arising out of judgments or awards with respect to which an appeal
or other proceeding for review is being prosecuted (and as to which any foreclosure or other enforcement proceeding shall have been effectively stayed);
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(vi) Liens for property taxes not yet subject to penalties for non−payment or which are being contested in good faith and by appropriate proceedings (and as to
which foreclosure or other enforcement proceedings shall have been effectively stayed);
(vii) Liens in favor of issuers of surety bonds issued in the ordinary course of business;
(viii) minor survey exceptions, minor encumbrances, easements or reservations of or rights of others for rights of way, sewers, electric lines, telegraph and
telephone lines and other similar purposes, or zoning or other restrictions as to the use of real properties or Liens incidental to the conduct of the business of the Person incurring them or the ownership of its properties which were not
incurred in connection with Debt or other extensions of credit and which do not in the aggregate materially detract from the value of such properties or materially impair their use in the operation of the business of such Person;
(ix) Liens in favor of Bell Canada (or any successor) under any partial system agreement or related agreement providing for the construction and installation by
Bell Canada of cables, attachments, connectors, support structures, closures and other equipment in accordance with the plans and specifications of the Company or any Restricted Subsidiary and the lease by Bell Canada of such equipment to the
Company or any Restricted Subsidiary in accordance with tariffs published by Bell Canada from time to time as approved by regulatory authorities, the absence of which would materially and adversely affect the Company and its Restricted
Subsidiaries considered as a whole; and
(x) any other Lien existing on the Issue Date.
“Principal Property” means, as of any date of determination, any land, land improvements or building (and associated factory, laboratory, office and switching equipment (excluding all
products marketed by the Company or any of its Subsidiaries)) constituting a manufacturing, development, warehouse, service, office or operating facility owned by or leased to the Company or a Restricted Subsidiary, located within Canada and having
an acquisition cost plus capitalized improvements in excess of 0.25% of Consolidated Net Tangible Assets of the Company as of such date of determination, other than any such property (i) which the Board of Directors determines is not of material
importance to the Company and its Restricted Subsidiaries taken as a whole, (ii) which is not used in the ordinary course of business or (iii) in which the interest of the Company and all its Subsidiaries does not exceed 50%.
“Rating Agencies” means S&P, Moody’s and Fitch, and each of such Rating Agencies is referred to individually as a “Rating Agency”.
“Rating Date” means the date which is 90 days prior to the earlier of (i) a Change in Control and (ii) public notice of the occurrence of a Change in Control or of the intention of the
Company to effect a Change in Control.
“Rating Decline” means the occurrence of the following on, or within 90 days after, the date of public notice of the occurrence of a Change in Control or of the intention by the Company
to effect a Change in Control (which period shall be extended so long as the rating of the Notes is under publicly announced consideration for possible downgrade by any of the
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Rating Agencies): (i) in the event the Notes are assigned an Investment Grade Rating by at least two of the three Rating Agencies on the Rating Date, the rating of the Notes by at least two of the three
Rating Agencies shall be below an Investment Grade Rating; or (ii) in the event the Notes are rated below an Investment Grade Rating by at least two of the three Rating Agencies on the Rating Date, the rating of the Notes by at least two of the
three Rating Agencies shall be decreased by one or more gradations (including gradations within rating categories as well as between rating categories).
“S&P” means S&P Global Ratings, a division of S&P Global Inc., or any successor rating agency.
“Sale and Leaseback Transaction” means any arrangement with any Person providing for the leasing by the Company or any Restricted Subsidiary of any Principal Property (whether such
Principal Property is now owned or hereafter acquired) that has been or is to be sold or transferred by the Company or such Restricted Subsidiary to such Person, other than (i) temporary leases for a term, including renewals at the option of the
lessee, of not more than three years, (ii) leases between the Company and a Restricted Subsidiary or between Restricted Subsidiaries and (iii) leases of Principal Property executed by the time of, or within 180 days after the latest of, the
acquisition, the completion of construction or improvement (including any improvements on property which will result in such property becoming Principal Property), or the commencement of commercial operation of such Principal Property.
“Secured Debt” means:
(a) Debt of the Company or any Restricted Subsidiary secured by any Lien upon any Principal Property or the stock or Debt of a Restricted Subsidiary (other than a
Restricted Subsidiary that guarantees the payment obligations of the Company under the Notes); or
(b) any conditional sale or other title retention agreement covering any Principal Property or Restricted Subsidiary;
but does not include any Exempted Secured Debt.
“SEDAR+” means the successor system to the Canadian securities administrators’ System for Electronic Document Analysis and Retrieval, and any further successor system of the Canadian
securities administrators for the transmission, receipt, acceptance, review and dissemination of documents filed in electronic format.
“Tangible Assets” means, at any date, the gross book value as shown by the accounting books and records of any Person of all its property both real and personal, less (i) the net book
value of all its licenses, patents, patent applications, copyrights, trademarks, trade names, goodwill, non−compete agreements or organizational expenses and other like intangibles, (ii) unamortized Debt discount and expenses, (iii) all reserves
for depreciation, obsolescence, depletion and amortization of its properties and (iv) all other proper reserves which in accordance with GAAP should be provided in connection with the business conducted by such Person.
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“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
|
|
|
Agent Member
|
310
|
|
|
Authorized Signatory
|
201
|
|
|
Beneficial Interest Owner
|
313
|
|
|
Change in Control
|
401
|
|
|
Change in Control Offer
|
404(a)
|
|
|
Change in Control Purchase Date
|
404(a)
|
|
|
Change in Control Purchase Notice
|
404(b)
|
|
|
Change in Control Purchase Price
|
404(a)
|
|
|
Change in Control Triggering Event
|
401
|
|
|
DTC
|
201
|
|
|
Edward S. Rogers
|
401
|
|
|
Family Percentage Holding
|
401
|
|
|
Financial Reports
|
805
|
|
|
Global Note
|
201
|
|
|
Global Notes Legend
|
202
|
|
|
Guarantee
|
701(a)
|
|
|
Guaranteed Obligations
|
701(a)
|
|
|
H.15
|
203
|
|
|
H.15 TCM
|
203
|
|
|
Instructions
|
801
|
|
|
Maturity Date
|
301
|
|
|
Member of the Rogers Family
|
401
|
|
|
Permitted Residuary Beneficiary
|
401
|
|
|
Perpetuity Date
|
401
|
|
|
Qualifying Trust
|
401
|
|
|
RCCI
|
Preamble
|
|
|
Record Date
|
202
|
|
|
Remaining Life
|
301
|
|
|
Spouse
|
401
|
|
|
Successor Guarantor
|
703
|
|
|
Treasury Rate
|
203
|
SECTION 103 EFFECT OF SUPPLEMENTAL INDENTURE.
Upon the execution and delivery of this Supplemental Indenture by the Company, RCCI 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;
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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 issued under the Indenture prior to, on or after the Issue Date. 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.
SECTION 107 EFFECT OF HEADINGS AND TABLE OF
CONTENTS.
The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof. Unless otherwise expressly specified, references
in this Supplemental Indenture to specific Article numbers or Section numbers refer to Articles and Sections contained in this Supplemental Indenture, and not the Indenture or any other document.
SECTION 108 SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Supplemental Indenture by the Company and RCCI shall bind their respective successors and permitted assigns (if any), whether so expressed or not.
All covenants and agreements of the Trustee in this Supplemental Indenture shall bind its successors and permitted assigns (if any), whether so expressed or not.
SECTION 109 SEPARABILITY CLAUSE.
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In case any provision in this Supplemental Indenture or in the Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions
shall not in any way be affected or impaired thereby.
SECTION 110 BENEFITS OF SUPPLEMENTAL INDENTURE.
Nothing in this Supplemental Indenture or in the Notes, express or implied, shall give to any Person (other than the parties hereto, any Paying Agent and any Security Registrar, and
their successors hereunder, and the Holders) any benefit or any legal or equitable right, remedy or claim under this Supplemental Indenture or in respect of the Notes.
SECTION 111 GOVERNING LAW.
This Supplemental Indenture and the Notes shall be governed by and construed in accordance with the laws of the State of New York. This Supplemental Indenture shall be subject to the
provisions of the Trust Indenture Act that are required or deemed to be part of this Supplemental Indenture and shall, to the extent applicable, be governed by such provisions.
SECTION 112 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 Supplemental Indenture or the 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 Trustee at its Corporate
Trust Office, Attention: Global Trust Finance; and (b) the Company by the Trustee or any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if made, given, furnished or delivered in writing to the
Company to 333 Bloor Street East, 10th Floor, Toronto, Ontario, Canada, M4W 1G9, Attention: Vice-President, Treasurer or by email to rogers.treasury@rci.rogers.com, with a copy to the Chief Legal Officer, email rogerslegal@rci.rogers.com, 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 112.
ARTICLE TWO
FORM OF THE NOTES
FORM OF THE NOTES
SECTION 201 FORMS GENERALLY.
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(a) 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 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 Authorized Signatory executing such Notes, as evidenced by such Authorized Signatory’s execution of the Notes (but which shall not affect the rights or duties of the Trustee). Any portion of the text of any Note
may be set forth on the reverse thereof, with an appropriate reference thereto on the face of the Note.
The Definitive Notes shall be printed, lithographed or engraved or produced by any combination of these methods or may be produced in any other manner permitted by the rules of the
Depositary or any securities exchange on which the Notes may be listed, all as determined by any Authorized Signatory executing such Notes, as evidenced by such Authorized Signatory’s execution of such Notes.
(b) 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 represented by one or more Global Securities substantially in the form set forth in this Article deposited with
the Trustee as custodian for the Depositary, and duly executed by the Company and authenticated by the Trustee as hereinafter provided. The Depositary for such Global Securities shall be the Depository Trust Company, a New York corporation
(“DTC”). The aggregate principal amount of the Global Securities may from time to time be increased or decreased by adjustments made on the records of the Depositary or its nominee, or of the Trustee, as custodian for the Depositary or its
nominee, as hereinafter provided.
The Notes 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 (each, an “Authorized Signatory”). The
signature of any such Authorized Officer or director on the Notes may be a manual or electronic signature. 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 FACE 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 and Sections 203 and 204:
[Insert only for Global Notes (the “Global Notes Legend”): UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”) TO THE COMPANY (HEREINAFTER REFERRED TO) OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO., OR IN SUCH OTHER NAME AS
IS
13
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC, AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC, ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED HOLDER HEREOF, CEDE & CO., HAS A PROPERTY INTEREST IN THE SECURITIES REPRESENTED BY THIS CERTIFICATE HEREIN AND IT IS A VIOLATION OF ITS RIGHTS FOR ANOTHER
PERSON TO HOLD, TRANSFER OR DEAL WITH THIS CERTIFICATE.
THIS NOTE IS A GLOBAL SECURITY WITHIN THE MEANING OF THE BASE INDENTURE (HEREINAFTER REFERRED TO). THIS NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE BASE INDENTURE) OR ITS NOMINEE
IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (A) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO THE INDENTURE, (B) THIS NOTE MAY BE
EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 207(B) OF THE BASE INDENTURE, (C) THIS NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 211 OF THE BASE INDENTURE AND (D) EXCEPT AS OTHERWISE PROVIDED IN SECTION 207(B)
OF THE BASE INDENTURE, THIS SECURITY MAY BE TRANSFERRED, IN WHOLE BUT NOT IN PART, ONLY (X) BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, (Y) BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR (Z) BY THE
DEPOSITARY OR ANY NOMINEE TO A SUCCESSOR DEPOSITARY OR TO A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.]
ROGERS COMMUNICATIONS INC.
5.00% SENIOR NOTES DUE 2029
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No.
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CUSIP: 775109 DE8
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ISIN: US775109DE81
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Rogers Communications Inc., a corporation organized under the laws of the Province of British Columbia (herein called the “Company”, which term includes any successor entity under the
Indenture hereinafter referred to), for value received, hereby promises to pay to Cede & Co. or registered assigns, the principal sum of ____________ U.S. dollars [Note: Insert if a Global Security: (as
revised by the Schedule of Increases and Decreases in Global Note attached hereto)] on February 15, 2029, at the office or agency of the Company referred to below, and to pay accrued interest on such principal amount in arrears, in semi-annual
payments on February 15 and August 15 (each herein called an “Interest Payment Date”) (or, if such day is not a Business Day, the Interest Payment Date will be postponed to the next succeeding day that
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is a Business Day, and no further interest will accrue in respect of such postponement) of each year, beginning on August 15, 2024, which interest shall accrue from and including February 9, 2024 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, at a rate of 5.00% per annum, until the principal hereof is paid or duly provided for, and (to the
extent lawful) to pay interest on any overdue interest at the rate borne by the Notes from the date of the Interest Payment Date on which such overdue interest becomes payable to the date payment of such interest has been made or duly provided for.
The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in 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 February 1 or August 1, as applicable (whether or not a Business Day), immediately preceding the related Interest Payment Date (such date, the “Regular
Record Date”) for such interest. Any such interest not so punctually paid or duly provided for, and interest on such Default Interest, at the interest rate borne by the Notes, to the extent lawful, shall forthwith cease to be payable to the Holder
on such Regular Record Date, and may be paid to the Person in whose name this Note (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Default Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Notes not less than 10 days prior to such Special Record Date, or may be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the
Notes may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture.
Payment of the principal of (and premium, if any) and interest on this Note will be made at the office or agency of the Company maintained for that purpose in the City of New York (which
initially shall be the Corporate Trust Office of the Trustee), and if the Company shall designate and maintain an additional office or agency for such purpose, also at such additional office or agency, in U.S. dollars. Notwithstanding the
foregoing, the final payment of principal shall be payable only upon surrender of this Note to the Paying Agent.
For any period, interest on this Note shall be calculated on the basis of a 360-day year, consisting of twelve 30-day months, and, for any period shorter than six months, on the basis of
the actual number of days elapsed per 30-day month. For the purposes of the Interest Act (Canada), the yearly rate of interest which is equivalent to the rate payable hereunder is the rate payable multiplied by the actual number of days in the year
and divided by 360.
Reference is hereby made to the further provisions of this Note set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at
this place.
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, facsimile 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
State of New York applicable therein.
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IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
Dated:
| ROGERS COMMUNICATIONS INC. | ||||
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By:
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||||
| Name: | ||||
| Title: | ||||
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By:
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||||
| Name: | ||||
| Title: | ||||
SECTION 203 FORM OF REVERSE OF NOTE.
This Note is one of a duly authorized issue of securities of the Company designated as its 5.00% SENIOR NOTES DUE 2029 (herein called the “Notes”), issued under an indenture (as the same
may from time to time be supplemented or amended (other than by a Series Supplement), herein called the “Base Indenture”) dated as of August 6, 2008, between the Company and The Bank of New York Mellon, as trustee (herein called the “Trustee”,
which term includes any successor trustee thereunder), as supplemented and amended by the Nineteenth Supplemental Indenture dated as of February 9, 2024, among the Company, as issuer of the Notes, the Trustee and Rogers Communications Canada Inc.,
a corporation organized under the laws of Canada (“RCCI”), as Guarantor, (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, RCCI, 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.
Payment of the principal of (and premium, if any) and interest on this Note will be made in United States dollars.
The Company will pay to the Holders such Additional Amounts as may become payable under Section 907 of the Base Indenture.
On or before each Interest Payment Date, the Company shall deliver or cause to be delivered to the Trustee or the Paying Agent an amount in U.S. dollars sufficient to pay the amount due
on such payment date.
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To guarantee the due and punctual payment of the principal and interest on the Notes and all other amounts payable by the Company under the Indenture and the Notes when and as the same
shall be due and payable, whether at maturity, by acceleration or otherwise, according to the terms of the Notes and the Indenture, RCCI has fully and unconditionally guaranteed the Guaranteed Obligations on an unsecured, unsubordinated basis
pursuant to the terms of the Indenture. RCCI will pay to the Holders such Additional Amounts as may become payable under Section 704 of the Supplemental Indenture.
The Notes will be subject to redemption upon not less than 10 nor more than 60 days’ prior notice at any time and from time to time, as a whole or in part, in amounts of U.S.$2,000 or an
integral multiple of U.S.$1,000 in excess thereof, at the option of the Company: (i) prior to the Par Call Date, at a Redemption Price (expressed as a percentage of principal amount and rounded to three decimal places) equal to the greater of: (1)
100% of the principal amount of the Notes to be redeemed, and (2) (a) the sum of the present values of the remaining scheduled payments of principal and interest thereon discounted to the Redemption Date (assuming the Notes to be redeemed are
scheduled to mature on the Par Call Date) on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus the Applicable Basis Points less (b) accrued and unpaid interest on the Notes to be redeemed to
the Redemption Date, plus, in either case, accrued and unpaid interest thereon to the Redemption Date, and (ii) commencing on the Par Call Date, at a Redemption Price equal to 100% of the principal amount of the Notes to be redeemed plus accrued
and unpaid interest thereon to the applicable Redemption Date.
“Treasury Rate” means, with respect to any Redemption Date, the yield determined by the Company in accordance with the following two paragraphs:
The Treasury Rate shall be determined by the Company after 4:15 p.m., New York City time (or after such time as yields on U.S. government securities are posted daily
by the Board of Governors of the Federal Reserve System), on the third Business Day preceding the Redemption Date based upon the yield or yields for the most recent day that appear after such time on such day in the most recent statistical release
published by the Board of Governors of the Federal Reserve System designated as “Selected Interest Rates (Daily) - H.15” (or any successor designation or publication) (“H.15”) under the caption “U.S. government securities–Treasury constant
maturities–Nominal” (or any successor caption or heading) (“H.15 TCM”). In determining the Treasury Rate, the Company shall select, as applicable: (1) the yield for the Treasury constant maturity on H.15 exactly equal to the period from the
Redemption Date to the Par Call Date (the “Remaining Life”); or (2) if there is no such Treasury constant maturity on H.15 exactly equal to such Remaining Life, the two yields – one yield corresponding to the Treasury constant maturity on H.15
immediately shorter than and one yield corresponding to the Treasury constant maturity on H.15 immediately longer than such Remaining Life – and shall interpolate to the Par Call Date on a straight-line basis (using the actual number of days) using
such yields and rounding the result to three decimal places; or (3) if there is no such Treasury constant maturity on H.15 shorter than or longer than such Remaining Life, the yield for the single Treasury constant maturity on H.15 closest to such
Remaining Life. For purposes of this paragraph, the applicable Treasury constant maturity or maturities on H.15 shall be deemed to have a maturity date equal to the relevant number of months or years, as applicable, of such Treasury constant
maturity from the Redemption Date.
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If on the third Business Day preceding the Redemption Date H.15 TCM is no longer published, the Company shall calculate the applicable Treasury Rate based on the
rate per annum equal to the semi-annual equivalent yield to maturity at 11:00 a.m., New York City time, on the second Business Day preceding such Redemption Date of the United States Treasury security maturing on, or with a maturity that is closest
to, the Par Call Date, as applicable. If there is no United States Treasury security maturing on the Par Call Date but there are two or more United States Treasury securities with a maturity date equally distant from the Par Call Date, one with a
maturity date preceding the Par Call Date and one with a maturity date following the Par Call Date, the Company shall select the United States Treasury security with a maturity date preceding the Par Call Date. If there are two or more United
States Treasury securities maturing on the Par Call Date or two or more United States Treasury securities meeting the criteria of the preceding sentence, the Company shall select from among these two or more United States Treasury securities the
United States Treasury security that is trading closest to par based upon the average of the bid and asked prices for such United States Treasury securities at 11:00 a.m., New York City time. In determining the Treasury Rate in accordance with the
terms of this paragraph, the semi-annual yield to maturity of the applicable United States Treasury security shall be based upon the average of the bid and asked prices (expressed as a percentage of principal amount) at 11:00 a.m., New York City
time, of such United States Treasury security, and rounded to three decimal places. The Company’s actions and determinations in determining the Redemption Price shall be conclusive and binding for all purposes, absent manifest error.
The Notes will also be subject to redemption as a whole, but not in part, at the option of the Company at any time and from time to time, on not less than 10 nor more than 60 days’ prior
written notice, at 100% of the principal amount plus accrued and unpaid interest thereon to the Redemption Date, in the event the Company or RCCI, as the case may be, has become or would become obligated to pay, on the next date on which any amount
would be payable in respect of the Notes or the Guarantee, as applicable, any Additional Amounts as a result of certain changes affecting Canadian withholding taxes on or after the Issue Date.
Any optional redemption of the Notes (and any related notice of redemption) (whether prior to, on or after the Par Call Date) may, at the Company’s discretion, be
subject to one or more conditions precedent, including completion of an equity or other securities offering, an incurrence of indebtedness or other financing, or any other transaction or event. If such redemption is subject to the satisfaction of
one or more conditions precedent, the related notice must 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 applicable date fixed for redemption. In addition, the Company may provide in such notice that payment of the Redemption Price and other amounts owing for the redemption of any Notes and
performance of the Company’s obligations with respect to such redemption may be performed by another Person.
In the case of any redemption of Notes, interest installments whose Stated Maturity is on or prior to the Redemption Date will be payable to the Holders of record of such Notes, or one
or more Predecessor Securities, at the close of business on the relevant Regular Record Date referred to on the face hereof. Notes (or portions thereof), for whose redemption
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and payment provision is made in accordance with the Indenture, shall cease to bear interest from and after the Redemption Date. In the event of redemption of this Note in part only, a replacement Note or
Notes for the unredeemed portion hereof shall be issued in the name of the Holder hereof upon the cancellation hereof.
If an Event of Default (other than an Event of Default resulting from a Change in Control Triggering Event which is cured in accordance with Section 404 of the Supplemental Indenture by
the making and consummation of a Change in Control Offer) shall occur and be continuing, the principal amount of all the Notes may be declared due and payable in the manner and with the effect provided in the Indenture.
In addition, it shall be an Event of Default under the Indenture if a Change in Control Triggering Event occurs on or prior to the Maturity of the Notes (subject to the aforesaid cure
provisions). Following such an Event of Default the principal amount of all the Notes may be declared due and payable in the manner and with the effect provided in the Indenture unless the Company (or a third party) offers, within 20 Business Days
after the occurrence of such Event of Default, to purchase the Notes and purchases the Notes for the Change in Control Purchase Price in cash on the date that is 40 Business Days after the occurrence of the Change in Control Triggering Event from a
Holder who delivers and does not withdraw a Change in Control Purchase Notice. Holders have the right to withdraw any Change in Control Purchase Notice by delivering to the Paying Agent a written notice of withdrawal in accordance with the terms
and provisions of the Indenture.
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 not less than a majority in aggregate principal amount of the Notes at the time Outstanding. The Indenture also contains provisions permitting the
Holders of specified percentages in aggregate principal amount of the Notes at the time Outstanding, on behalf of the Holders of all the Notes, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such consent or waiver by or on behalf of the Holder of this Note shall be conclusive and binding upon such Holder and upon all future Holders of this Note and of any Note issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay
the principal of (and premium, if any) and interest on this Note at the times, place and rate, and in the coin or currency, herein prescribed.
The Notes are issuable only in registered form without coupons in denominations of U.S.$2,000 or any integral multiples of U.S.$1,000 in excess 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
19
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.
As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Note is registrable on the Security Register, upon surrender of this Note for
registration of transfer at the Corporate Trust Office of the Trustee or any other office or agency of the Company designated pursuant to the Indenture duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or its attorney duly authorized in writing, and thereupon one or more replacement Notes of any authorized denomination or denominations, of a like aggregate principal amount and
containing identical terms and provisions, will be issued to the designated transferee or transferees.
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
The Bank of New York Mellon, as Trustee, certifies that this is one of the Notes referred to in the within-mentioned Indenture.
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THE BANK OF NEW YORK MELLON,
as Trustee
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By:
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||||
| Name: | ||||
| Title: | ||||
SECTION 204 ASSIGNMENT FORM; CERTIFICATE TO BE
DELIVERED UPON EXCHANGE OR REGISTRATION OF TRANSFER RESTRICTED NOTES.
The following forms are to be attached to Notes that are Global Securities:
ASSIGNMENT FORM
To assign this Note, fill in the form below:
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(I) or (we) assign and transfer this Note to
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(Insert assignee’s legal name)
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Insert assignee’s soc. sec. or tax I.D. no.)
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(Print or type assignee’s name, address and zip code)
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and irrevocably appoint to transfer this Note on the books of the Company. The agent may substitute another to act for him or her.
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Date:
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||||
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Your Signature:
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||||
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(Sign exactly as your name appears
on the face of this Note)
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Signature Guarantee1:
| 1 |
Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).
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SECTION 205 SCHEDULE OF INCREASES OR DECREASES IN
GLOBAL SECURITY.
The following schedule is to be attached to Notes that are Global Securities:
5.00% SENIOR NOTES DUE 2029
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Initial Principal Amount: U.S.$
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CUSIP 775109 DE8/ ISIN US775109DE81
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Authorization: ______________________
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The following increases or decreases in this Note have been made:
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Date
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Amount of decrease in Principal Amount of this Global Security
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Amount of increase in Principal Amount
of this Global Security
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Principal Amount of this Global Security following such decrease or increase
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Signature of Trustee or
Security Registrar
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ARTICLE THREE
THE NOTES
SECTION 301 TITLE AND TERMS.
The Notes shall be known and designated as the “5.00% Senior Notes due 2029” of the Company. The entire unpaid principal amount of each Note shall become due and payable to the Holder
thereof on February 15, 2029 (the “Maturity Date”). Interest shall accrue on the aggregate unpaid principal amount of each Note at a rate of interest equal to 5.00% per annum from February 9, 2024 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. If an Interest Payment Date falls on a day that is not a Business Day, then payment will be made on the next succeeding Business Day without any additional
interest accruing between the Interest Payment Date and the day payment is actually made. The Regular Record Date for the interest payable on any Interest Payment Date shall be the February 1 or August 1 (whether or not a Business Day), as the case
may be, immediately preceding such Interest Payment Date. To the extent lawful, interest shall accrue on any overdue interest at the rate borne by the Notes from the date of the Interest Payment Date on which such overdue interest becomes payable
to the date payment of such interest has been made or duly provided for and such Default Interest shall be payable at the times and on the terms provided for in the Indenture.
An unlimited aggregate principal amount of the Notes may be authenticated and delivered under this Supplemental Indenture (of which U.S.$1,250,000,000 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
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204, 205, 206, 207, 208, 806, 1008 or 1009 of the Indenture and Section 404 hereof. 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 at the time outstanding, except for their date of issue, issue price and, if applicable, the first Interest Payment Date; provided that, if any
such Additional Notes are not fungible with the Notes for U.S. federal income tax purposes, such Additional Notes will have a separate CUSIP, ISIN or other identifying number. All Initial Notes and Additional Notes shall be treated as a single
class for all purposes of the Indenture, including waivers, amendments, redemptions and offers to purchase.
The Notes shall be unsecured, unsubordinated obligations of the Company ranking pari passu with any other present or future unsecured,
unsubordinated obligations of the Company.
The Notes shall be denominated in, and all principal of, and interest and premium (if any) on, the Notes shall be payable in U.S. dollars. Any payment of Additional Amounts hereunder
shall also be payable in U.S. dollars.
The Notes may be redeemed at the option of the Company at the prices, at the times and on such other terms and conditions as are specified in the form of the Note in Article Two hereof.
The Company shall not be otherwise obligated to redeem, purchase or repay the Notes pursuant to any sinking fund or analogous provisions or at the option of a Holder of the Notes except as provided in Article Six hereof.
The Notes shall be subject to the covenants (and the related definitions) set forth in Articles Seven and Nine of the Indenture and, except as otherwise provided herein, to any other
covenant in the Indenture, and to the defeasance and discharge provisions set forth in Article Three thereof and Section 304 herein.
Certain obligations of the Company under the Notes shall be fully and unconditionally guaranteed by RCCI to the extent set forth in Article Seven hereof.
SECTION 302 DENOMINATIONS.
The Notes shall be issuable only in fully registered form without coupons and in denominations of U.S.$2,000 or integral multiples of U.S.$1,000 in excess thereof.
SECTION 303 NOTES TO BE SECURED IN CERTAIN EVENTS.
If, upon any consolidation or amalgamation of the Company or RCCI, as applicable, with or merger of the Company or RCCI, as applicable, into any other Person, or upon any conveyance,
transfer, lease or disposition of the properties and assets of the Company or RCCI, as applicable, substantially as an entirety to any Person by liquidation, winding−up or otherwise (in one transaction or a series of related transactions), in each
case in accordance with Section 701 of the Indenture, in the case of the Company, or Section 703 of this Supplemental Indenture, in the case of RCCI, any property or asset of the Company or of any Subsidiary,
23
would thereupon become subject to any Lien, then, unless such Lien could be created pursuant to Section 502 without equally and ratably securing the Notes, the Company or RCCI, as applicable, prior to or
simultaneously with such consolidation, amalgamation, merger, conveyance, transfer, lease or disposition, will, as to such property or asset, secure the Notes Outstanding hereunder (together with, if the Company or RCCI shall so determine, any
other Debt of the Company or RCCI now existing or hereafter created which is not subordinate to the Notes) equally and ratably with (or prior to) the Debt which upon such consolidation, amalgamation, merger, conveyance, transfer, lease or
disposition is to become secured as to such property or asset by such Lien, or will cause such Notes to be so secured.
SECTION 304 DISCHARGE.
Subject to the last paragraph of this Section 304, the Company and RCCI shall be discharged from its obligations with respect to, and this Supplemental Indenture
will be discharged and will cease to be of further effect as to, all Outstanding Notes, and the Trustee shall, at the request and at the expense of the Company, execute and deliver to the Company and RCCI such deeds or other instruments as shall be
required to evidence such satisfaction and discharge, when either:
(a) all Outstanding Notes (except, for the avoidance
of doubt, any lost, stolen or destroyed Notes which have been replaced or paid as provided in Section 208 of the Indenture and Notes for whose payment money has been deposited in trust or segregated and held in trust by the Company or RCCI and
thereafter repaid to the Company or RCCI, as applicable, or discharged from such trust), have been delivered to the Trustee for cancellation (including on conversion or exchange of the Notes into other securities or property), or
(b) all Notes not so delivered to the Trustee for
cancellation (i) have otherwise become due and payable or have been called for redemption pursuant to this Supplemental Indenture, (ii) will become due and payable within one year or (iii) if redeemable at the Company’s option pursuant to this
Supplemental Indenture, 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 or RCCI has irrevocably deposited or caused to be deposited with the Trustee funds in trust solely for the benefit of the Holders, cash, in United States dollars, 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 Notes and accrued interest thereon to the Stated Maturity or Redemption Date, as the case may be, and
(c) in either case of the foregoing clause (a) or (b),
the Company or RCCI has paid or caused to be paid all sums then payable by it under this Supplemental Indenture with respect to the Notes.
(d) Notwithstanding the foregoing, and notwithstanding
the satisfaction and discharge of this Supplemental Indenture with respect to Notes, (A) the rights of Holders of the Notes to receive solely from the fund held in trust described in subsection (b) of this Section 304
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and as more fully set forth in such Section, payments in respect of the principal of (and premium, if any) and interest on the Notes when such payments are due, (B) the Company’s
obligations with respect to the Notes under Section 205, Section 206, Section 208, Section 902, Section 903 and Section 908, each of the Indenture, (C) the rights, powers, trusts, duties and immunities of the Trustee hereunder and the Company’s and
RCCI’s obligations in connection therewith, including the Company’s obligations under Section 507 of the Indenture and (D) this Article Three shall survive until the Notes 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 RCCI, as applicable (or discharged from such trust, as applicable) in accordance with the last paragraph of Section 903 of the Indenture. Thereafter, only the Company’s obligations in Section 507
of the Indenture shall survive.
SECTION 305 TRANSFER AND EXCHANGE OF DEFINITIVE
NOTES FOR DEFINITIVE NOTES.
When Notes in the form of a Definitive Note are presented to the Security Registrar with a request:
(a) to register the transfer of such Definitive Notes;
or
(b) to exchange such Definitive Notes for an equal
principal amount of Definitive Notes of other authorized denominations,
the Security Registrar shall register the transfer or make the exchange as requested if its reasonable requirements for such transaction are met; provided,
however, that the Definitive Notes surrendered for transfer or exchange shall be duly endorsed or accompanied by a written instrument of transfer in form reasonably satisfactory to the Company and the
Security Registrar, duly executed by the Holder thereof or his attorney duly authorized in writing.
SECTION 306 TRANSFER OF A DEFINITIVE NOTE FOR A
BENEFICIAL INTEREST IN A GLOBAL NOTE.
A Holder of a Definitive Note may exchange such Note for a beneficial interest in a Global Note or transfer such Definitive Notes to a Person who takes delivery thereof in the form of a
beneficial interest in a Global Note at any time. Upon receipt of a request for such an exchange or transfer, the Trustee will cancel the applicable Definitive Note and increase or cause to be increased the aggregate principal amount of one of the
Global Notes for the applicable Series. If no Global Notes are then outstanding, the Company may issue and the Trustee shall authenticate, upon receipt of a Company Order of the Company in the form of an Officer’s Certificate, a new applicable
Global Note in the appropriate principal amount.
SECTION 307 TRANSFER AND EXCHANGE OF GLOBAL NOTES.
(a) The transfer and exchange of Global Notes or
beneficial interests therein shall be effected through the Depositary, in accordance with the Indenture (including applicable restrictions on transfer, if any) and the procedures of the Depositary therefor. A transferor of a beneficial
interest in a Global Note shall deliver to the Security Registrar a written order given in accordance with the Depositary’s procedures containing information regarding the participant
25
account of such Depositary to be credited with a beneficial interest in such Global Note or another Global Note, and such account shall be credited in accordance with such order with a
beneficial interest in the applicable Global Note, and the account of the Person making the transfer shall be debited by an amount equal to the beneficial interest in the Global Note being transferred.
(b) If the proposed transfer is a transfer of a
beneficial interest in one Global Note to a beneficial interest in another Global Note, the Security Registrar shall reflect on its books and records the date and an increase in the principal amount of the Global Note to which such interest is
being transferred in an amount equal to the principal amount of the interest to be so transferred, and the Security Registrar shall reflect on its books and records the date and a corresponding decrease in the principal amount of the Global
Note from which such interest is being transferred. .
(c) Notwithstanding any other provisions of this
Supplemental Indenture (other than Section 304), a Global Note may not be transferred except as a whole and not in part by the Depositary to a nominee of such Depositary or by a nominee of the Depositary to such Depositary or another nominee of
such Depositary or by the Depositary or any such nominee to a successor of such Depositary or a nominee of such successor Depositary.
SECTION 308 CANCELLATION OR ADJUSTMENT OF GLOBAL
NOTE.
At such time as all beneficial interests in a Global Note have either been exchanged for Definitive Notes, transferred, redeemed, repurchased or canceled, such Global Note shall be
returned by the Depositary to the Trustee for cancellation or retained and canceled by the Trustee. At any time prior to such cancellation, if any beneficial interest in a Global Note is exchanged for Definitive Notes, transferred in exchange for
an interest in another Global Note, redeemed, repurchased or canceled, the principal amount of Notes represented by such Global Note shall be reduced and an adjustment shall be made on the books and records of the Trustee (if it is then the
Custodian for such Global Note) with respect to such Global Note, by the Trustee or Custodian, to reflect such reduction.
SECTION 309 OBLIGATIONS WITH RESPECT TO TRANSFERS
AND EXCHANGES OF NOTES.
(a) To permit registrations of transfers and
exchanges, the Company shall execute and the Trustee, upon receipt of a Company Order, shall authenticate, Definitive Notes and Global Notes at the Security Registrar’s request.
(b) No service charge shall be made for any
registration of transfer or exchange (except as otherwise expressly permitted in the Indenture), but the Company may require payment of a sum sufficient to cover any transfer tax, assessments, or similar governmental charge payable in
connection therewith (other than any such transfer taxes, assessments or similar governmental charge payable upon transfers or exchanges pursuant to Sections 205 and 1008 of the Indenture).
(c) Prior to the due presentation for registration of
transfer of any Note, the Company, the Trustee, the Paying Agent or the Security Registrar may deem and treat the person
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in whose name a Note is registered as the absolute owner of such Note for the purpose of receiving payment of principal of and interest on such Note and for all other purposes
whatsoever, whether or not such Note is overdue, and none of the Company, the Trustee, the Paying Agent or the Security Registrar shall be affected by notice to the contrary.
(d) All Notes issued upon any transfer or exchange
pursuant to the terms of the Indenture shall evidence the same debt and shall be entitled to the same benefits under the Indenture as the Notes surrendered upon such transfer or exchange.
(e) The Security Registrar and the Trustee may request
such evidence as may be reasonably requested by them to determine the identity and signatures of the transferor and the transferee.
SECTION 310 NO OBLIGATION OF THE TRUSTEE.
(a) The Trustee shall have no responsibility or
obligation to any beneficial owner of a Global Note, a member of, or a participant in the Depositary (“Agent Members”) or any other Person with respect to the accuracy of the records of the Depositary or their respective nominees or of any
participant or member thereof, with respect to any ownership interest in the Notes or with respect to the delivery to any participant, member, beneficial owner or other Person (other than the Depositary) of any notice (including any notice of
redemption or repurchase) or the payment of any amount, under or with respect to such Notes. All notices and communications to be given to the Holders and all payments to be made to Holders under the Notes shall be given or made only to the
registered Holders (which shall be the Depositary or its nominee in the case of a Global Note). The rights of beneficial owners in any Global Note shall be exercised only through the Depositary subject to the applicable rules and procedures of
the Depositary. The Trustee may rely and shall be fully protected in relying upon information furnished by the Depositary with respect to its members, participants and any beneficial owners.
(b) The Trustee shall have no obligation or duty to
monitor, determine or inquire as to compliance with any restrictions on transfer imposed under the Indenture or under applicable law with respect to any transfer of any interest in any Note (including any transfers between or among Depositary
participants, members or beneficial owners in any Global Note) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by, the terms of
the Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.
SECTION 311 NON-COMPLIANT TRANSFERS NULL AND VOID.
Any purported transfer of a Note, or any interest therein, to a purchaser or transferee that does not comply with the requirements specified in this Article Three shall be of no force
and effect and shall be null and void ab initio.
SECTION 312 DEFINITIVE NOTES.
(a) A Global Note deposited with the Depositary or
Custodian pursuant to Section 201 may be transferred to the beneficial owners thereof in the form of Definitive Notes
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in an aggregate principal amount equal to the principal amount of such Global Note, in exchange for such Global Note, only if such transfer complies with this Article Three and (1) the
Depositary notifies the Company that it is unwilling or unable to continue as a Depositary for such Global Note or if at any time the Depositary ceases to be a “clearing agency” registered under the Exchange Act or otherwise ceases to be eligible
as a depositary and, in each case, a successor depositary is not appointed by the Company within 90 days of such notice or after the Company becomes aware of such cessation, or (2) an Event of Default has occurred and is continuing (and, in the
case of an Event of Default arising upon a Change in Control Triggering Event, such Event of Default shall not have been cured by a Change of Control Offer in the prescribed time) and the Security Registrar has received a request from the
Depositary or (3) the Company, in its sole discretion and subject to the procedures of the Depositary, notifies the Trustee in writing that it elects to cause the issuance of Definitive Notes under the Indenture. In addition, any Affiliate of the
Company that is a beneficial owner of all or part of a Global Note may have such Affiliate’s beneficial interest transferred to such Affiliate in the form of a Definitive Note, by providing a written request to the Company and the Trustee and such
Opinions of Counsel, certificates or other information as may be required by the Indenture or the Company or the Trustee.
(b) Any Global Note that is transferable to the
beneficial owners thereof pursuant to this Section 312 shall be surrendered by the Depositary to the Trustee, to be so transferred, in whole or from time to time in part, without charge, and the Trustee shall authenticate and deliver, upon such
transfer of each portion of such Global Note, an equal aggregate principal amount of Definitive Notes of authorized denominations. Any portion of a Global Note transferred pursuant to this Section 312 shall be executed, authenticated and
delivered only in denominations of U.S.$2,000 or any integral multiples of U.S.$1,000 in excess thereof, registered in such names as the Depositary shall direct.
(c) The registered Holder of a Global Note may grant
proxies and otherwise authorize any Person, including Agent Members and Persons that may hold interests through Agent Members, to take any action which a Holder is entitled to take under the Indenture or the Notes.
(d) In the event of the occurrence of any of the
events specified in paragraph (a)(1), (2) or (3) of this Section 312, the Company shall promptly make available to the Trustee a reasonable supply of Definitive Notes in fully registered form without interest coupons.
ARTICLE FOUR
REMEDIES UPON CHANGE IN CONTROL
SECTION 401 ADDITIONAL EVENT OF DEFAULT.
In addition to the Events of Default set forth in Section 401 of the Indenture, “Event of Default”, wherever used herein and in the Indenture with respect to the Notes, includes the
occurrence of a Change in Control Triggering Event (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any
order, rule or regulation of any
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administrative or governmental body), subject to any cure thereof as provided in Section 404 below.
Under this Supplemental Indenture, a “Change in Control Triggering Event” is deemed to occur upon both a Change in Control and a Rating Decline with respect to the Notes. The Trustee
shall have no obligation or duty to monitor, determine or inquire as to whether a Rating Decline with respect to the Notes has occurred.
A “Change in Control” means (i) any transaction (including an amalgamation, merger or consolidation or the sale of Capital Stock of the Company) the result of which is that any Person or
group of Persons (as the term “group” is used in Rule 13d−5 of the Exchange Act), other than Members of the Rogers Family or a Person or group of Persons consisting of or controlled, directly or indirectly, by one or more Members of the Rogers
Family, acquires, directly or indirectly, more than 50% of the total voting power of all classes of Voting Shares of the Company or (ii) any transaction (including an amalgamation, merger or consolidation or the sale of Capital Stock of the
Company) the result of which is that any Person or group of Persons, other than (A) Members of the Rogers Family or a Person or group of Persons consisting of or controlled, directly or indirectly, by one or more Members of the Rogers Family or (B)
for so long as the only primary beneficiaries of a Qualifying Trust established under the last will and testament of Edward S. Rogers are one or more persons referred to in clause (i) of the definition of “Member of the Rogers Family” or the
Spouse, for the time being and from time to time, of the issue (including individuals adopted by such Persons, provided that such adopted individuals have not attained the age of majority at the date of such adoption, together with the issue of any
such adopted individuals) of any person described in subclause (i)(b) or (c) of the definition of “Member of the Rogers Family”, any Person designated by the trustees of such Qualifying Trust to exercise voting rights attaching to any shares held
by such trustees, has elected to the Board of Directors such number of its or their nominees so that such nominees so elected shall constitute a majority of the number of the directors comprising the Board of Directors; provided that to the extent
that one or more regulatory approvals are required for any of the transactions or circumstances described in clause (i) or (ii) above to become effective under applicable law, such transactions or circumstances shall be deemed to have occurred at
the time such approvals have been obtained and become effective under applicable law.
“Member of the Rogers Family” means (i) such of the following persons as are living at the date of this Supplemental Indenture or are born after the date of this Supplemental Indenture
and before the Perpetuity Date: (a) the widow, if any, of Edward S. Rogers (who was born on May 27, 1933, such individual being hereinafter referred to as “Edward S. Rogers”); (b) the issue of Edward S. Rogers; (c) Ann Taylor Graham Calderisi, the
half−sister of Edward S. Rogers, and the issue of Ann Taylor Graham Calderisi; (d) individuals adopted by Edward S. Rogers or any of the persons described in subclauses (a) or (b) of this clause (i) provided that such adopted individuals have not
attained the age of majority at the date of such adoption, together with the issue of any such adopted individuals; provided that if any person is born out of wedlock he shall be deemed not to be the issue of another person for the purposes hereof
unless and until he is proven or acknowledged to be the issue of such person and; (ii) the trustees of any Qualifying Trust, but only to the extent of such Qualifying Trust’s Family Percentage Holding of voting securities or rights to control or
direct the voting securities of the Company at the time of the determination.
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“Family Percentage Holding” means the aggregate percentage of the securities held by a Qualifying Trust representing, directly or indirectly, an interest in voting securities or rights
to control or direct the voting securities of the Company, that it is reasonable, under all the circumstances, to regard as being held beneficially for Qualified Persons (or any class consisting of two or more Qualified Persons); provided always
that in calculating the Family Percentage Holding (A) in respect of any power of appointment or discretionary trust capable of being exercised in favor of any of the Qualified Persons such trust or power shall be deemed to have been exercised in
favor of Qualified Persons until such trust or power has been otherwise exercised; (B) where any beneficiary of a Qualifying Trust has assigned, transferred or conveyed, in any manner whatsoever, his or her beneficial interest to another person,
then, for the purpose of determining the Family Percentage Holding in respect of such Qualifying Trust, the person to whom such interest has been assigned, transferred or conveyed shall be regarded as the only person beneficially interested in the
Qualifying Trust in respect of such interest but in the case where the interest is so assigned, transferred or conveyed is an interest in a discretionary trust or is an interest which may arise as a result of the exercise in favor of the assignor
of a discretionary power of appointment and such discretionary trust or power of appointment is also capable of being exercised in favor of persons described in clause (i) of the definition of “Member of the Rogers Family”, such discretionary trust
or power shall be deemed to have been so exercised in favor of Qualified Persons until it has in fact been exercised; and (C) the interest of any Permitted Residuary Beneficiary shall be ignored until its interest has indefeasibly vested.
“Permitted Residuary Beneficiary” means any person who is a beneficiary of a Qualifying Trust and, under the terms of the Qualifying Trust, is entitled to distributions out of the
capital of such Qualifying Trust only after the death of all of the Qualified Persons who are beneficiaries of such Qualifying Trust.
“Perpetuity Date” means the date that is 21 years, less one day, from the date of the death of the last survivor of the individuals described in subclause (i)(a), (b), (c) or (d) of the
definition of “Member of the Rogers Family”, who are living at the date of this Supplemental Indenture.
“Qualifying Trust” means a trust (whether testamentary or inter vivos) any beneficiary of which is a person referred to in clause (i) of the definition of “Member of the Rogers Family”
or the Spouse, for the time being and from time to time, of the issue (including individuals adopted by such Persons, provided that such adopted individuals have not attained the age of majority at the date of such adoption, together with the issue
of any such adopted individuals) of any person described in subclause (i)(b) or (c) of the definition of “Member of the Rogers Family”, provided that such Spouse is living at the date of this Supplemental Indenture or is born after the date of this
Supplemental Indenture and before the Perpetuity Date (all such persons being hereafter referred to as “Qualified Persons”).
“Spouse” means, in relation to any person, a person who is legally married to that person and includes a widow or widower of that person, notwithstanding remarriage.
SECTION 402 ACCELERATION OF MATURITY; RESCISSION
AND ANNULMENT.
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If a Change in Control Triggering Event occurs and is continuing and the Company (or a third party) fails in any material respect to comply with any of the provisions of Section 404
hereof, then and in every such case the Trustee or the Holders of not less than 25% in aggregate principal amount of the Notes then Outstanding may declare the principal of all such Notes to be due and payable immediately, by a notice in writing to
the Company (and to the Trustee if given by Holders), and upon any such declaration such principal shall become immediately due and payable.
SECTION 403 RESERVED.
SECTION 404 CHANGE IN CONTROL OFFER.
(a) The Notes may not be accelerated pursuant to
Section 402 hereof following an Event of Default arising from a Change in Control Triggering Event and such Event of Default shall be cured if the Company complies in all material respects with the provisions of this Section 404. If the Company
elects to cure such Event of Default, within 20 Business Days of the occurrence of an Event of Default arising from a Change in Control Triggering Event, (i) the Company shall notify the Trustee in writing of the occurrence of the Change in
Control Triggering Event and shall make an offer to purchase (the “Change in Control Offer”) all outstanding Notes properly tendered at a purchase price equal to 101% of the principal amount thereof plus any accrued and unpaid interest thereon
to the Change in Control Purchase Date (as hereinafter defined) (the “Change in Control Purchase Price”) on the date that is 40 Business Days after the occurrence of the Change in Control Triggering Event (the “Change in Control Purchase
Date”), (ii) the Trustee shall deliver a copy of the Change in Control Offer to each Holder and (iii) the Company shall cause a notice of the Change in Control Offer to be sent at least once to the Dow Jones News Service or similar business
news service in the United States and CNW Group Ltd. (Canada News Wire or Cision Canada) or a similar news service in Canada. The Change in Control Offer shall remain open from the time such offer is made until the Change in Control Purchase
Date. The Trustee shall be under no obligation to ascertain the occurrence of a Change in Control Triggering Event or to give notice with respect thereto other than as provided above upon receipt of a Change in Control Offer from the Company.
The Trustee may conclusively assume, in the absence of receipt of a Change in Control Offer from the Company, that no Change in Control Triggering Event has occurred. The Change in Control Offer shall include a form of Change in Control
Purchase Notice to be completed by the Holder and shall state:
(i) the events causing a Change in
Control Triggering Event and the date such Change in Control Triggering Event is deemed to have occurred;
(ii) that the Change in Control
Offer is being made pursuant to this Section 404 and that all Notes properly tendered pursuant to the Change in Control Offer will be accepted for payment;
(iii) the date by which the Change
in Control Purchase Notice pursuant to this Section 404 must be given;
(iv) the Change in Control Purchase
Date;
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(v) the Change in Control Purchase
Price;
(vi) the names and addresses of the
Paying Agent and the offices or agencies referred to in Section 902 of the Indenture;
(vii) that Notes must be
surrendered to the Paying Agent at the office of the Paying Agent or to an office or agency referred to in Section 902 of the Indenture to collect payment;
(viii) that the Change in Control
Purchase Price for any Note as to which a Change in Control Purchase Notice has been duly given and not withdrawn will be paid promptly upon the later of the first Business Day following the Change in Control Purchase Date and the time of
surrender of such Note as described in clause (vii) above;
(ix) the procedures the Holder must
follow to accept the Change in Control Offer; and
(x) the procedures for withdrawing
a Change in Control Purchase Notice.
(b) A Holder may accept a Change in Control Offer by
delivering to the Paying Agent at the office of the Paying Agent or to an office or agency referred to in Section 902 of the Indenture a written notice (a “Change in Control Purchase Notice”) at any time prior to the close of business on the
Change in Control Purchase Date, stating:
(i) that such Holder elects to have
a Note purchased pursuant to the Change in Control Offer;
(ii) the principal amount of the
Note that the Holder elects to have purchased by the Company, which amount must be U.S.$1,000 or an integral multiple thereof, and the certificate numbers of the Notes to be delivered by such Holder for purchase by the Company; and
(iii) that such Note shall be
purchased on the Change in Control Purchase Date pursuant to the terms and conditions specified in this Supplemental Indenture.
The delivery of such Note (together with all necessary endorsements) to the Paying Agent at the office of the Paying Agent or to an office or agency referred to in Section 902 of the
Indenture prior to, on or after the Change in Control Purchase Date shall be a condition to the receipt by the Holder of the Change in Control Purchase Price therefor; provided that such Change in Control Purchase Price shall be so paid pursuant to
this Section 404 only if the Note so delivered to the Paying Agent or to an office or agency referred to in Section 902 of the Indenture shall conform in all respects to the description thereof set forth in the related Change in Control Purchase
Notice.
The Company shall purchase from the Holder thereof, pursuant to this Section 404, a portion of a Note if the principal amount of such portion is U.S.$1,000 or an integral
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multiple of U.S.$1,000 in excess thereof. Provisions of the Indenture that apply to the purchase of all of a Note also apply to the purchase of a portion of such Note.
Any purchase by the Company contemplated pursuant to the provisions of this Section 404 shall be consummated by the delivery by the Company of the consideration to be received by the
Holder promptly upon the later of (a) the first Business Day following the Change in Control Purchase Date and (b) the time of delivery of the Note by the Holder to the Paying Agent or to an office or agency referred to in Section 902 of the
Indenture in the manner required by this Section 404.
Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent, at the office of the Paying Agent or an office or agency referred to in Section 902 of the
Indenture, the Change in Control Purchase Notice contemplated by this Section 404(b) shall have the right to withdraw such Change in Control Purchase Notice at any time prior to the close of business on the Change in Control Purchase Date by
delivery of a written notice of withdrawal to the Paying Agent or to an office or agency referred to in Section 902 of the Indenture in accordance with Section 601 hereof.
The Paying Agent or the office or agency referred to in Section 902 of the Indenture shall promptly notify the Company of the receipt by the former of any Change in Control Purchase
Notice or written notice of withdrawal thereof.
(c) The Notes may also not be accelerated pursuant to
Section 402 hereof following an Event of Default arising from a Change in Control Triggering Event and such Event of Default shall also be cured if a third party makes and consummates a Change in Control Offer in the manner and at the times and
otherwise in compliance with this Section 404; provided, however, that any such third party shall be subject to Section 907 of the Indenture in respect of any amounts paid by such third party hereunder (for this purpose, Section 907 of the
Indenture is modified by replacing “Company” with the name of the third party) and such Event of Default shall be cured only if such third party complies with Section 907 of the Indenture (as modified) or if the Company satisfies the third
party’s obligations under such Section.
ARTICLE FIVE
ADDITIONAL COVENANTS
SECTION 501 RESTRICTED SUBSIDIARIES.
(a) The Board of Directors of the Company may
designate any Restricted Subsidiary or any Person that is to become a Subsidiary as an Unrestricted Subsidiary, or the Company or any Restricted Subsidiary may transfer any assets or properties to an Unrestricted Subsidiary, if (i) prior to and
immediately after such designation, no Default or Event of Default shall have occurred and be continuing and (ii) such Subsidiary or Person, together with all other Unrestricted Subsidiaries, shall not in the aggregate have Net Tangible Assets
greater than 15% of the Company’s Consolidated Net Tangible Assets; provided, however, that for the purposes of this Section 501, (1) the Company’s Consolidated Net Tangible Assets shall also include the aggregate Net Tangible Assets of such
Subsidiary or Person and all other Unrestricted
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Subsidiaries and (2) Excluded Assets shall be excluded from the calculation of Net Tangible Assets and Consolidated Net Tangible Assets.
(b) The Board of Directors of the Company may not
designate any Unrestricted Subsidiary as a Restricted Subsidiary unless immediately before and after giving effect to such designation, no Default or Event of Default shall have occurred and be continuing.
(c) Nothing in this Section 501 shall restrict or
limit the Company or any Restricted Subsidiary from transferring any asset that is an Excluded Asset to any Unrestricted Subsidiary or any Person that is to become an Unrestricted Subsidiary.
SECTION 502 LIMITATION ON SECURED DEBT.
The Company will not, and will not permit any of its Restricted Subsidiaries to, create, assume, incur or guarantee any Secured Debt unless and for so long as the Company secures, or
causes such Restricted Subsidiary to secure, the Notes equally and ratably with (or prior to) such Secured Debt. However, any of the Company or its Restricted Subsidiaries may incur Secured Debt without securing the Notes if, immediately after
incurring the Secured Debt, the aggregate principal amount of all Secured Debt then outstanding plus the aggregate amount of the Attributable Debt then outstanding pursuant to Sale and Leaseback Transactions would not exceed 15% of the Company’s
Consolidated Net Tangible Assets. The aggregate amount of all Secured Debt in the preceding sentence excludes Secured Debt which is secured equally and ratably with the Notes and Secured Debt that is being repaid concurrently. Any Lien which is
granted to secure the Notes under this Section 502 shall be discharged at the same time as the discharge of the Lien securing the Secured Debt that gave rise to the obligation to secure the Notes under this Section 502.
SECTION 503 LIMITATION ON SALE AND LEASEBACK
TRANSACTIONS.
The Company will not, and will not permit any Restricted Subsidiary to, enter into any Sale and Leaseback Transaction, unless either (a) immediately thereafter, the sum of (1) the
Attributable Debt to be outstanding pursuant to such Sale and Leaseback Transaction and all other Sale and Leaseback Transactions entered into by the Company or a Restricted Subsidiary on or after the Issue Date (or, in the case of a Restricted
Subsidiary, the date on which it became a Restricted Subsidiary, if on or after the Issue Date) and (2) the aggregate amount of all Secured Debt, excluding Secured Debt which is secured equally and ratably with the Notes, would not exceed 15% of
the Company’s Consolidated Net Tangible Assets or (b) an amount, equal to the greater of the net proceeds to the Company or a Restricted Subsidiary from such sale and the Attributable Debt to be outstanding pursuant to such Sale and Leaseback
Transaction, is used within 180 days to retire Debt of the Company or a Restricted Subsidiary. However, Debt which is subordinate to the Notes or which is owed to the Company or a Restricted Subsidiary may not be retired in satisfaction of clause
(b) above.
SECTION 504 LIMITATION ON RESTRICTED SUBSIDIARY
DEBT.
The Company will not permit any Restricted Subsidiary to, directly or indirectly, create, incur, assume or suffer to exist any Debt (other than Debt to the extent that the Notes are
secured equally and ratably with (or prior to) such Debt), unless:
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(1) the obligations of the Company under the Notes are guaranteed (which guarantee may be on an unsecured basis) by such Restricted Subsidiary such that the claim of the Holders of the
Notes under such guarantee ranks prior to or pari passu with such Debt; or
(2) after giving effect to the incurrence of such Debt and the application of the proceeds therefrom, the sum of (without duplication) (x) the then outstanding aggregate principal amount
of Debt of all Restricted Subsidiaries (other than Exempted Secured Debt, and for the avoidance of doubt, any Debt permitted by clause (1) of this Section 504), (y) the then outstanding aggregate principal amount of Secured Debt of the Company (not
on a Consolidated basis) and (z) Attributable Debt relating to then outstanding Sale and Leaseback Transactions, would not exceed 15% of Consolidated Net Tangible Assets; provided, however, that this restriction will not apply to, and there will be
excluded from any calculation hereunder, (A) Debt owing by a Restricted Subsidiary to the Company or to another Restricted Subsidiary and (B) Debt secured by Permitted Liens; provided, further, that this restriction will not prohibit the incurrence
of Debt in connection with any extension, renewal or replacement (including successive extensions, renewals or replacements), in whole or in part, of any Debt of the Restricted Subsidiaries (provided that the principal amount of such Debt
immediately prior to such extension, renewal or replacement is not increased).
SECTION 505 WAIVER OF CERTAIN COVENANTS.
Pursuant to Section 910 of the Indenture, the Company may omit in any particular instance to comply with any covenant or condition in Section 905 or 906 thereof and any covenant or
condition in Section 501, 502, 503 or 504 of this Supplemental Indenture if, before or after the time for such compliance, the Holders of the Notes at the time Outstanding shall, by Holder Direction, waive such compliance in such instance with such
covenant or condition, but no such waiver shall extend to or affect such covenant or condition except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Company and the duties of the Trustee in
respect of any such covenant or condition shall remain in full force and effect.
ARTICLE SIX
CHANGE IN CONTROL PROVISIONS
SECTION 601 EFFECT OF CHANGE IN CONTROL PURCHASE
NOTICE.
Upon receipt by the Company of the Change in Control Purchase Notice specified in Section 404(b) hereof, the Holder of the Note in respect of which such Change in Control Purchase Notice
was given shall (unless such Change in Control Purchase Notice is withdrawn as specified in the following two paragraphs of this Section) thereafter be entitled to receive solely the Change in Control Purchase Price with respect to such Note. Such
Change in Control Purchase Price shall be paid to such Holder upon the later of (a) the first Business Day following the Change in Control Purchase Date (provided the conditions in Section 404(b) hereof have been satisfied) and (b) the time of
delivery of the Note to the Paying Agent at the office of the Paying Agent or to the office or agency referred to in Section 902 of the Indenture by the Holder thereof in the manner required by Section 404(b) hereof.
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A Change in Control Purchase Notice may be withdrawn before or after delivery by the Holder to the Paying Agent at the office of the Paying Agent of the Note to which such Change in
Control Purchase Notice relates, by means of a written notice of withdrawal delivered by the Holder to the Paying Agent at the office of the Paying Agent or to the office or agency referred to in Section 902 of the Indenture to which the related
Change in Control Purchase Notice was delivered at any time prior to the close of business on the Change in Control Purchase Date specifying, as applicable:
(a) the certificate number of the Note in respect of
which such notice of withdrawal is being submitted,
(b) the principal amount of the Note (which shall be
U.S.$1,000 or an integral multiple thereof) with respect to which such notice of withdrawal is being submitted, and
(c) the principal amount, if any, of such Note (which
shall be U.S.$1,000 or an integral multiple thereof) that remains subject to the original Change in Control Purchase Notice and that has been or will be delivered for purchase by the Company.
The Paying Agent will promptly return to the respective Holders thereof any Notes with respect to which a Change in Control Purchase Notice has been withdrawn in compliance with this
Supplemental Indenture.
SECTION 602 DEPOSIT OF CHANGE IN CONTROL PURCHASE
PRICE.
No later than 11:00 a.m. (New York time) on the Business Day following the Change in Control Purchase Date the Company shall deposit or cause to be deposited with the Paying Agent (or,
if the Company is acting as the Paying Agent, shall segregate and hold in trust as provided in Section 903 of the Indenture) an amount of cash sufficient to pay the aggregate Change in Control Purchase Price of all the Notes or portions thereof
that are to be purchased as of the Change in Control Purchase Date.
SECTION 603 REPAYMENT TO THE COMPANY.
As provided in the Notes, the Trustee and the Paying Agent shall return to the Company any cash that remains unclaimed, together with interest and dividends, if any, thereon (subject to
the provisions of Section 507 of the Indenture), held by them for the payment of the Change in Control Purchase Price; provided, however, that, to the extent that the aggregate amount of cash deposited by the Company pursuant to Section 602 hereof
exceeds the aggregate Change in Control Purchase Price of the Notes or portions thereof to be purchased, then the Trustee shall hold such excess for the Company and promptly after the Business Day following the Change in Control Purchase Date the
Trustee shall upon demand return any such excess to the Company together with interest and dividends, if any, thereon (subject to the provisions of Section 507 of the Indenture).
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ARTICLE SEVEN
GUARANTEE
SECTION 701 GUARANTEE.
(a) RCCI hereby fully and unconditionally guarantees
(the “Guarantee”) due payment and performance to the Trustee, for and on behalf of the Holders, forthwith after demand, of all the obligations of the Company that arise under this Supplemental Indenture, the applicable provisions of the
Indenture or under the Notes to pay the principal of (and premium, if any) and interest on the Notes when due and payable at Maturity and any Additional Amounts, and all other amounts due or to become due under or in connection with this
Supplemental Indenture, the Notes and the performance of all other obligations to the Trustee (including all amounts due to the Trustee under Section 507 of the Indenture) and the Holders of the Notes which obligations arise under this
Supplemental Indenture and the Notes, according to the terms hereof and thereof, including any applicable grace periods (the “Guaranteed Obligations”). The Guarantee shall be an unsecured, unsubordinated obligation of RCCI ranking pari passu with other present and future unsecured, unsubordinated obligations of RCCI. The Company hereby fully and unconditionally guarantees the Guarantee of RCCI.
(b) RCCI agrees that, without obtaining the consent of
or giving notice to RCCI, the Trustee may vary this Supplemental Indenture or the Indenture, as provided herein and therein, grant extensions of time or other indulgences, take and give up securities, grant releases and discharges and otherwise
deal with the Company and other parties as the Trustee may see fit and may apply all monies received from the Company or others or from securities upon such part of the Company’s liability as the Trustee may think best without prejudice to or
in any way limiting or lessening the liability of RCCI under this Supplemental Indenture. The Trustee expressly reserves all its rights under the Indenture, and any such variances shall not be deemed waivers of any rights or other provisions
under the Indenture or this Supplemental Indenture.
(c) The Guarantee shall be a continuing guarantee of
all the Guaranteed Obligations and shall apply to any ultimate balance due or remaining unpaid to the Holders of the Notes. The Guarantee shall not be considered as wholly or partially satisfied by the payment or liquidation at any time of any
sum of money which may at any time be or become owing or due or remain unpaid to the Holders of the Notes.
(d) The Guarantee shall not be discharged or otherwise
affected by any change in the name, objects, businesses, assets, capital structure or constitution of the Company or RCCI, or by any merger or amalgamation of the Company or RCCI with any Person or Persons, except as otherwise provided in this
Supplemental Indenture or the applicable provisions of the Indenture. In the case of the Company being amalgamated with another corporation, the Guarantee shall apply to the liabilities of the resulting corporation, and the term “Company” shall
include each such resulting corporation.
(e) All monies, advances, renewals and credits in fact
borrowed or obtained by the Company under this Supplemental Indenture shall be deemed to form part of the liabilities
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hereby guaranteed notwithstanding any limitation of status or of power of the Company or of the directors or agents thereof or that the Company may not be a legal entity or any
irregularity, defect or informality in the borrowing or obtaining of such monies, advances, renewals or credits.
(f) The obligations of RCCI hereunder are and shall be
absolute and unconditional and any moneys or amounts expressed to be owing or payable by RCCI hereunder which may not be recoverable from RCCI on the basis of a guarantee or as surety shall be recoverable from RCCI as a primary obligor and
principal debtor in respect thereof.
(g) The Trustee shall not be bound to exhaust its
recourse against the Company or other parties before being entitled to demand payment from or performance by RCCI and enforce its rights under this Supplemental Indenture.
(h) Any account settled or stated by or between the
Trustee and the Company in relation to this Supplemental Indenture shall be accepted by RCCI as conclusive evidence that the balance or amount thereby appearing due by the Company to the Trustee is so due.
(i) RCCI shall make payment to the Trustee of the
amount of the liability of RCCI forthwith after demand therefor is made in writing during the continuance of any Event of Default and such demand shall be conclusively deemed to have been effectually made when delivered in accordance with the
notice provisions set forth herein and the liability of RCCI shall bear interest from the date of such demand at the rate borne by the Notes, such interest to be calculated monthly based on the number of days elapsed and to be deemed payable on
the first Business Day of a month in respect of the immediately preceding month or upon demand, whichever is earlier.
(j) All amounts payable by RCCI under this
Supplemental Indenture shall be paid without set−off or counterclaim and without any deduction or withholding whatsoever unless and to the extent that RCCI shall be prohibited by law from doing so, in which case RCCI shall, only to the extent
such a similar requirement is imposed on the Company pursuant to this Supplemental Indenture, pay to the Trustee such additional amount as shall be necessary to ensure that the Trustee receives the full amount it would have received if no such
deduction or withholding had been made.
(k) RCCI acknowledges that it has, by separate written
instrument, irrevocably designated and appointed CT Corporation System (“CT Corporation”) as its authorized agent upon which process may be served in any suit or proceeding arising out of or relating to the Notes, the Guarantee or this
Supplemental Indenture that may be instituted in any federal or state court in the State of New York or brought under federal or state securities laws. RCCI acknowledges that CT Corporation has accepted such designation, submits to the
non−exclusive jurisdiction of any such court in any such suit or proceeding and acknowledges further that service of process upon CT Corporation (or any successor) and written notice of said service to RCCI shall be deemed in every respect
effective service of process upon RCCI in any such suit or proceeding. RCCI further agrees to take any and all action, including the execution and filing of any and all such documents and instruments, as may be necessary to continue such
designation and appointment of CT Corporation (or any successor) in full force and effect so
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long as any of the Notes shall be outstanding. In addition, to the extent that RCCI has or hereafter may acquire any immunity from jurisdiction of any court or from any legal process
(whether through service of notice, attachment prior to judgment, attachment in aid of execution, execution or otherwise) with respect to itself or its property, it hereby irrevocably waives such immunity in respect of its obligations under the
above−referenced documents, to the extent permitted by law.
SECTION 702 RELEASE OF GUARANTOR.
(a) In addition to the release provisions set forth in
the Indenture, subject to Section 702(d), RCCI shall be released and relieved from all of its obligations under this Article Seven, and RCCI’s Guarantee shall be terminated and be of no further force or effect, upon the request of the Company
(without the consent of the Trustee) if, immediately after giving effect to such release and termination (and, if applicable, any transaction in connection therewith, including any other concurrent release, termination, repayment or discharge
of any other guarantee or other Debt of RCCI), the Company would be in compliance with Section 504 hereof, including in the event of a sale or other transaction as a result of which RCCI would cease to be a Subsidiary.
(b) In order to effect the release and termination
provided for in Section 702(a), the Company shall furnish to the Trustee an Officers’ Certificate stating that, immediately after giving effect to such release and termination (as well as any concurrent release, termination, repayment or
discharge of any other guarantee or other Debt of RCCI), the Company will be in compliance with Section 504 hereof. In the event that the release and termination is in connection with a sale or other transaction as a result of which RCCI would
cease to be a Subsidiary, pro forma effect shall be given to such transaction (including the application of any proceeds therefrom) in determining the Company’s compliance with Section 504 and, accordingly, the amount of Debt subject to the
Guarantee of RCCI and any other Debt of RCCI shall be excluded from any calculation thereunder. Notwithstanding any provision to the contrary in the Indenture or this Supplemental Indenture, no opinion, report or certificate, other than the
Officers’ Certificate provided for in this Section 702(b), need be furnished to the Trustee for such release and termination. After its receipt of the aforementioned Officers’ Certificate, the Trustee shall execute any documents reasonably
requested by either the Company or RCCI in order to evidence the release of RCCI from its obligations under the Guarantee under this Article Seven.
(c) No supplemental indenture, amendment or waiver
shall, without the consent of the Holder of each Outstanding Note, release RCCI from any of its obligations under Section 701, other than in accordance with the provisions of this Section 702 or the other release provisions set forth in the
Indenture, or amend or modify the release provisions of this Section 702.
(d) Notwithstanding the release provisions of Section
702(a), RCCI shall not be released from its obligations under this Article Seven and the Guarantee will not be terminated if, immediately after such release and termination (and, if applicable, after giving effect to any transaction to occur
concurrently therewith), RCCI remains a co−obligor with or a guarantor for, as applicable, the obligations of the Company under any Existing Note.
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(e) Notwithstanding the release provisions of this
Section 702, any Person added as a Guarantor at the option of the Company pursuant to Section 801(f) of the Indenture may be released at the option of the Company at any time upon such conditions as may be specified in the supplement to this
Supplemental Indenture pursuant to which such added Guarantor provided its Guarantee. No opinion, report or certificate, other than the Officers’ Certificate provided for in this Section 702(b), need be furnished to the Trustee for a release
and termination pursuant to this Section 702(e). Nothing in this Section 702(e) shall modify or amend the release provisions applicable to RCCI pursuant to clauses (a) through (e) of this Section 702.
SECTION 703 AMALGAMATION, CONSOLIDATION, MERGER,
CONVEYANCE, TRANSFER OR LEASE.
(a) Unless RCCI has been released, or in connection
with such transaction will be released, from its obligations under the Guarantee in accordance with the provisions of Section 702 hereof or any other release provision set forth in the Indenture, RCCI shall not amalgamate or consolidate with or
merge with or into any other Person or convey, transfer, lease or otherwise dispose of its properties and assets substantially as an entirety to any Person by liquidation, winding−up or otherwise (in one transaction or a series of related
transactions) unless:
(i) immediately after giving effect
to such transaction (and treating any Debt which becomes an obligation of RCCI or a Subsidiary of RCCI in connection with or as a result of such transaction as having been incurred at the time of such transaction), no Default or Event of
Default shall have occurred and be continuing;
(ii) either (x) RCCI shall be the
continuing Person or (y) the Person (if other than RCCI) formed by such amalgamation or consolidation or into which RCCI is merged or the Person which acquires by conveyance, transfer, lease or other disposition the properties and assets of
RCCI substantially as an entirety (the “Successor Guarantor”) shall, unless the Successor Guarantor is the Company, (A) be a corporation, company, partnership or trust organized and validly existing under the federal laws of Canada or any
Province thereof or the laws of the United States of America or any State thereof or the District of Columbia and (B) expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, in form satisfactory to the
Trustee, all of the obligations of RCCI under the Guarantee (provided, however, that the Successor Guarantor shall not be required to execute and deliver such a supplemental indenture in the event of an amalgamation of RCCI with one or more
other Persons, in which the amalgamation is governed by the laws of Canada or any province thereof, the Successor Guarantor and RCCI are, immediately prior to such amalgamation, organized and existing under the laws of Canada or any province
thereof and upon the effectiveness of such amalgamation, the Successor Guarantor shall have become or shall continue to be (as the case may be), by operation of law, liable for the observance of all obligations of RCCI under the Guarantee); and
(iii) RCCI, the Company or the
Successor Guarantor, as applicable, shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel,
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each stating that such amalgamation, consolidation, merger, conveyance, transfer, lease or other disposition and, if a supplemental indenture is required in
connection with such transaction (or series of transactions), such supplemental indenture, comply with this Section 703(a) and that all conditions precedent herein provided for relating to such transaction have been satisfied.
(b) Upon any amalgamation, consolidation or merger, or
any conveyance, transfer, lease or other disposition of the properties and assets of RCCI substantially as an entirety in accordance with Section 703(a), the Successor Guarantor shall succeed to, and be substituted for, and may exercise every
right and power of, RCCI under this Supplemental Indenture and the Indenture with the same effect as if such Successor Guarantor had been named as a Guarantor herein; and thereafter, except in the case of a lease, RCCI shall be released and
relieved from all of its obligations under this Article Seven, and RCCI’s Guarantee shall be terminated and be of no further force or effect.
SECTION 704 PAYMENT OF ADDITIONAL AMOUNTS.
All payments made by RCCI under or with respect to the Notes or the Guarantee will be made free and clear of and without withholding or deduction for or on account of any present or
future tax, duty, levy, impost, assessment or other governmental charge imposed or levied by or on behalf of the Government of Canada or of any province or territory thereof or by any authority or agency therein or thereof having power to tax
(hereinafter “Taxes”), unless RCCI is required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant government authority or agency. If RCCI is so required to withhold or deduct any amount for or on
account of Taxes from any payment made under or with respect to the Notes, RCCI will pay as interest such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by each holder of such Notes in respect of a
beneficial owner (including Additional Amounts) after such withholding or deduction will not be less than the amount such holder would have received in respect of the beneficial owner if such Taxes had not been withheld or deducted; provided that no Additional Amounts will be payable with respect to a payment made to a holder of the Notes in respect of a beneficial owner (i) with which RCCI does not deal at arm’s length (within the meaning
of the Income Tax Act (Canada) (the “Tax Act”)) at the time of making such payment or which is entitled to the payment in respect of a debt or other obligation to pay an amount to a person with which RCCI
does not deal at arm’s length (within the meaning of the Tax Act) at the time of making such payment, (ii) which is a “specified shareholder” of RCCI, or which does not deal at arm’s length (within the meaning of the Tax Act) with a “specified
shareholder” of RCCI as defined in subsection 18(5) of the Tax Act, (iii) which is an entity in respect of which RCI is a “specified entity” (as defined in proposed subsection 18.4(1) of the Tax Act contained in Bill C-59), (iv) where all or any
portion of the amount paid or credited to such holder is deemed to be a dividend pursuant to subsection 214(6) of the Tax Act, (v) which is subject to such Taxes by reason of the holder or beneficial owner carrying on business in, maintaining a
permanent establishment or other physical presence in or otherwise being connected with Canada or any province or territory thereof otherwise than by the acquisition or mere holding of Notes or the receipt of payments thereunder, (vi) which is
subject to such Taxes by reason of the legal nature of the holder or beneficial owner disentitling such holder or beneficial owner to the benefit of an applicable treaty or convention if and to the extent that the application of such treaty or
convention would have resulted in the reduction or elimination of any Taxes as to which Additional Amounts
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would have otherwise been payable to a holder on behalf of such beneficial owner, (vii) which is subject to such Taxes by reason of the failure by a holder or beneficial owner to comply with any
certification, identification, documentation or other reporting requirements if compliance is required by law, regulation, administrative practice or an applicable treaty as a pre-condition to exemption from, or a reduction in the rate of deduction
or withholding of, such Taxes, (viii) if the Notes are presented for payment more than 15 days after the date on which such payment or such Notes became due and payable or the date on which payment thereof is duly provided for, whichever is later
(except to the extent that the holder would have been entitled to such Additional Amounts had the Notes been presented on the last day of such 15-day period), (ix) on account of any estate, inheritance, gift, sales, value added, excise, transfer,
use, personal property tax or similar tax, assessment or governmental charge, (x) that is a fiduciary, partnership or any other entity other than the sole beneficial owner of such payment to the extent the Taxes giving rise to such Additional
Amounts would not have been imposed had the holder of the Notes been the beneficiary, partner or sole beneficial owner, as the case may be, of the payment, (xi) on account of any Taxes (a) that are payable other than by deduction or withholding
from a payment of the principal of, premium, if any, or interest on the Notes, (b) that would not have been imposed but for a change in law, regulation, or administrative or judicial interpretation that becomes effective more than 15 days after the
payment becomes due or is duly provided for, whichever occurs later or (c) that are required to be withheld by any paying agent from any payment of principal of or interest on any Note, if such payment can be made without such withholding or
deduction by at least one other paying agent or (xi) any combination of (i) through (xi). RCCI will also (a) make such withholding or deduction and (b) remit the full amount deducted or withheld to the relevant authority in accordance with
applicable law. Upon the written request of a holder of Notes, RCCI will furnish, as soon as reasonably practicable, to such holder of Notes certified copies of tax receipts evidencing such payment by RCCI.
If a holder in respect of a beneficial owner has received a refund or credit for any Taxes with respect to which RCCI has paid Additional Amounts, such holder shall pay over such refund
to RCCI (but only to the extent of such Additional Amounts), net of all out-of-pocket expenses of such holder or beneficial owner, together with any interest paid by the relevant tax authority in respect of such refund.
At least 30 days prior to each date on which any payment under or with respect to the Guarantee of RCCI is due and payable, if RCCI will be obligated to pay Additional Amounts with
respect to such payment, RCCI will deliver to the Trustee an Officers’ Certificate stating the fact that such Additional Amounts will be payable, stating the amounts so payable and will set forth such other information necessary to enable the
Trustee, on behalf of RCCI, to pay such Additional Amounts to Holders on the payment date. Whenever in the Indenture there is mentioned, in any context, the payment of principal (and premium, if any), redemption price, interest or any other amount
payable under or with respect to the Notes, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
The obligations of RCCI under this Section 704 shall survive the discharge and termination of this Supplemental Indenture and the payment of all amounts under or with respect to the
Guarantee.
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SECTION 705 RIGHT OF REDEMPTION; ELECTION TO
REDEEM; NOTICE TO TRUSTEE.
(a) If, as a result of
(i) a change in, or an amendment
to, the laws (including any regulations, rulings or protocols promulgated thereunder) or treaties of Canada (or any political subdivision or taxing authority thereof or therein);
(ii) any change in or amendment to,
or introduction of, any official position regarding the application, administration or interpretation of such laws, regulations, rulings, protocols or treaties (including a holding, judgment or order by a court of competent jurisdiction); or
(iii) any official proposal of the
aforementioned changes in clauses (i) and (ii) above;
which change, amendment or official proposal is announced or becomes effective on or after the Issue Date of the Notes, RCCI has become or would become obligated to
pay, on the next date on which any amount would be payable under or with respect to the Notes or the Guarantee, any Additional Amounts in accordance with Section 704 of this Supplemental Indenture, then the Company may, at its option, redeem such
Notes, as a whole but not in part, at a Redemption Price equal to 100% of their principal amount, plus accrued and unpaid interest thereon, if any, to but not including the Redemption Date (subject to the right of Holders on the relevant record
date to receive interest due on the relevant interest payment date), if any; provided that the Company determines, in its good faith judgment, that the obligation to pay such Additional Amounts cannot be
avoided by the use of reasonable commercial measures available to the Company or RCCI not including substitution of the obligor or guarantor under such Notes.
(b) The election of the Company to redeem any Notes
pursuant to this Section 705 shall be evidenced by a Board Resolution. In case of such redemption, the Company shall, at least 10 but not more than 60 days prior to the Redemption Date fixed by it (unless a shorter notice period shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date and of the principal amount of such Notes to be redeemed.
SECTION 706 PERSONS DEEMED OWNERS.
The reference contained in Section 210 of the Indenture to the obligations of the Company under Section 907 of the Indenture shall be deemed to include the obligations of RCCI under
Section 704 of this Supplemental Indenture.
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ARTICLE EIGHT
AMENDMENTS TO INDENTURE
SECTION 801 AMENDMENT TO INDENTURE SECTION 106.
For purposes of the Notes issued under this Supplemental Indenture, Section 106 is hereby amended by adding the following:
“The Trustee agrees to accept and act upon instructions, including funds transfer instructions (“Instructions”) given pursuant to this Supplemental Indenture and related financing
documents and delivered using Electronic Means; provided, however, that the Trustee shall have received an incumbency certificate listing the Authorized Officers
and containing specimen signatures of such Authorized Officers, which such incumbency certificate shall be amended by the Company whenever a person is to be added or deleted from the listing. If the Company 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 understands and agrees 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 Authorized Officer listed on the incumbency certificate provided to the Trustee have been sent
by such Authorized Officer. The Company shall be responsible for ensuring that only Authorized Officers transmit such Instructions to the Trustee and that the Company and all Authorized Officers are solely responsible to safeguard the use and
confidentiality of applicable user and authorization codes, passwords and/or authentication keys upon receipt by the Company. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s
reliance upon and compliance with such Instructions notwithstanding such Instructions conflict or are inconsistent with a subsequent written instruction. The Company agrees: (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; (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 promptly upon learning of any compromise or
unauthorized use of the security procedures.”
SECTION 802 AMENDMENT TO INDENTURE SECTION 115.
For purposes of the Notes issued under this Supplemental Indenture, Section 115 is hereby amended by adding the following:
“The Company irrevocably consents to the nonexclusive jurisdiction of any court of the State of New York or any United States Federal court sitting, in each case, in the Borough of
Manhattan, The City of New York, New York, United States of America, and any appellate court from any thereof, and waives any immunity from the jurisdiction of such courts over any suit, action or proceeding that may be brought by the Trustee or
Holders of the Notes in
44
connection with this Supplemental Indenture or the Notes. The Company irrevocably waives, to the fullest extent permitted by law, any objection to any suit, action or proceeding that may be brought in
connection with this Supplemental Indenture or the Notes in such courts on the grounds of venue or on the ground that any such suit, action or proceeding has been brought in an inconvenient forum. The Company agrees that final judgment in any such
suit, action or proceeding brought in such court shall be conclusive and binding upon the Company and may be enforced in any court to the jurisdiction of which the Company is subject by a suit upon such judgment; provided that service of process is
effected upon the Company in the manner provided by the Indenture.
ALL PARTIES HERETO HEREBY IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHTS TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE
NOTES OR THE TRANSACTIONS CONTEMPLATED HEREBY.”
SECTION 803 AMENDMENT TO INDENTURE SECTION 401.
For purposes of the Notes issued under this Supplemental Indenture, Section 401(b) is hereby amended and restated in its entirety as follows:
“(b) default in the payment of any interest, including any Additional Amounts on any Notes when it becomes due and payable, and continuance of such default for a period of 30 days; or”
SECTION 804 AMENDMENT TO INDENTURE SECTION 401.
For purposes of the Notes issued under this Supplemental Indenture, Section 401 is hereby amended by adding the following as the third paragraph of Section 401:
“Notwithstanding any other provision herein, the Trustee shall not be deemed to have notice of any Default or Event of Default unless a written notice of any event which is in fact such
a default is received by a Trust Officer of the Trustee at the Corporate Trust Office of the Trustee, and such notice references the applicable Series of Securities.”
SECTION 805 AMENDMENT TO INDENTURE ARTICLE FIVE.
For purposes of the Notes issued under this Supplemental Indenture, Article Five is hereby amended by adding the following as a new Section 515:
“Section 515: 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 Supplemental 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 with written
notice to the Company provided that: (i) the Trustee’s written notice shall, to the extent
45
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 (ii) if such circumstances are rectified to the Trustee’s satisfaction within a period specified within the written notice, then such resignation shall not be effective.”
SECTION 806 AMENDMENT TO INDENTURE SECTION 701.
For purposes of the Notes issued under this Supplemental Indenture, Section 701(a)(1) is hereby amended and restated in its entirety as follows:
“(1) the Company shall be the continuing Person or”
SECTION 807 AMENDMENT TO INDENTURE SECTION 906.
For purposes of the Notes issued under this Supplemental Indenture, Section 906 is hereby amended and restated in its entirety as follows:
“(a) If the Company is not required to file with the Commission the Financial Reports, the Company will furnish (without cost) to each holder of Notes then
outstanding and file with the Trustee (i) within 120 days after the end of each fiscal year, its audited consolidated financial statements for such fiscal year prepared in accordance with GAAP and substantially in the form prescribed by
applicable Canadian securities regulatory authorities for Canadian public reporting companies (whether or not the Company is a public reporting company at the time) and (ii) within 60 days after the end of each of the first three fiscal quarters
of each fiscal year, unaudited consolidated financial statements for the interim period as at, and for the interim period ending on, the end of such fiscal quarter prepared in accordance with GAAP and substantially in the form prescribed by
applicable Canadian securities regulatory authorities for Canadian public reporting companies (whether or not the Company is a public reporting company at the time).
(b) The obligations of the Company to deliver the Financial Reports or the financial statements referred to in the preceding paragraph will be deemed satisfied if
any parent entity of the Company has delivered to the Trustee (including by making them publicly available on SEDAR+ or EDGAR) the applicable Financial Reports or financial statements, as applicable, 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 Reports or financial statements, as applicable) “summary financial information” as defined in Section 13.4 of National Instrument 51-102 – Continuous Disclosure Obligations (“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 (if any) (on a combined basis), (iv) any other subsidiaries of the parent entity (on a combined basis), (v) consolidating adjustments and (vi) total consolidated amounts.
(c) Delivery of such Financial Reports or financial statements, as applicable, to the Trustee is for informational purposes only, and the Trustee’s receipt thereof
shall not constitute actual or constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its
46
covenants (as to which the Trustee is entitled to certificates). The Trustee shall not be obligated to monitor or confirm, on a continuing basis or otherwise, the Company’s compliance with the
covenants or with respect to any reports or other documents filed on SEDAR+, EDGAR or any website.
(d) Delivery of reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute actual
or constructive notice of any information contained therein or determinable from information contained therein, including the Company’s or RCCI’s compliance with any of their covenants hereunder (as to which the Trustee is entitled to rely
exclusively on Officers’ Certificates).”
SECTION 808 AMENDMENT TO INDENTURE SECTION 603.
For purposes of the Notes issued under this Supplemental Indenture, Section 603 is hereby amended and restated in its entirety as follows:
“So long as any Notes remain outstanding, the Company will provide to the Trustee within 30 days after the Company is required to file the same with the Commission, copies of the annual
reports and quarterly reports and of the information, documents and other reports which the Company may be required to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act (collectively, the “Financial Reports”); 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 EDGAR or any
other website maintained by the securities regulatory authorities in Canada or the Commission. Notwithstanding the foregoing, it shall not be the responsibility of the Trustee to monitor postings of the Company on SEDAR+ or EDGAR or any other
applicable website, 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 websites copies of the
Company’s annual report and of the information, documents and other reports (or copies of such portions of any of the foregoing as the Commission may by rules and regulations prescribe) which the Company is required to file with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act.”
SECTION 809 AMENDMENT TO INDENTURE SECTION 907.
For purposes of the Notes issued under this Supplemental Indenture, Section 907 is hereby amended and restated in its entirety as follows:
“All payments made by the Company under or with respect to the Notes or the Guarantee will be made free and clear of and without withholding or deduction for or on account of any present or future tax,
duty, levy, impost, assessment or other governmental charge imposed or levied by or on behalf of the Government of Canada or of any province or territory thereof or by any authority or agency therein or thereof having power to tax (hereinafter
“Taxes”), unless the Company is required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant government authority or agency. If the Company is so required to withhold or deduct any amount for or on
account of Taxes from any payment made under or with respect to the Notes, the Company will pay as interest such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by each holder of
47
such Notes in respect of a beneficial owner (including Additional Amounts) after such withholding or deduction will not be less than the amount such holder would have received in respect of the beneficial
owner if such Taxes had not been withheld or deducted; provided that no Additional Amounts will be payable with respect to a payment made to a holder of the Notes in respect of a beneficial owner (i) with which the Company does not deal at arm’s
length (within the meaning of the Income Tax Act (Canada) (the “Tax Act”)) at the time of making such payment or which is entitled to the payment in respect of a debt or other obligation to pay an amount to a person with which the Company does not
deal at arm’s length (within the meaning of the Tax Act) at the time of making such payment, (ii) which is a “specified shareholder” of the Company, or which does not deal at arm’s length (within the meaning of the Tax Act) with a “specified
shareholder” of the Company as defined in subsection 18(5) of the Tax Act, (iii) which is an entity in respect of which RCI is a “specified entity” (as defined in proposed subsection 18.4(1) of the Tax Act contained in Bill C-59), (iv) where all or
any portion of the amount paid or credited to such holder is deemed to be a dividend pursuant to subsection 214(6) of the Tax Act, (v) which is subject to such Taxes by reason of the holder or beneficial owner carrying on business in, maintaining a
permanent establishment or other physical presence in or otherwise being connected with Canada or any province or territory thereof otherwise than by the acquisition or mere holding of Notes or the receipt of payments thereunder, (vi) which is
subject to such Taxes by reason of the legal nature of the holder or beneficial owner disentitling such holder or beneficial owner to the benefit of an applicable treaty or convention if and to the extent that the application of such treaty or
convention would have resulted in the reduction or elimination of any Taxes as to which Additional Amounts would have otherwise been payable to a holder on behalf of such beneficial owner, (vii) which is subject to such Taxes by reason of the
failure by a holder or beneficial owner to comply with any certification, identification, documentation or other reporting requirements if compliance is required by law, regulation, administrative practice or an applicable treaty as a pre-condition
to exemption from, or a reduction in the rate of deduction or withholding of, such Taxes, (viii) if the Notes are presented for payment more than 15 days after the date on which such payment or such Notes became due and payable or the date on which
payment thereof is duly provided for, whichever is later (except to the extent that the holder would have been entitled to such Additional Amounts had the Notes been presented on the last day of such 15-day period), (ix) on account of any estate,
inheritance, gift, sales, value added, excise, transfer, use, personal property tax or similar tax, assessment or governmental charge, (x) that is a fiduciary, partnership or any other entity other than the sole beneficial owner of such payment to
the extent the Taxes giving rise to such Additional Amounts would not have been imposed had the holder of the Notes been the beneficiary, partner or sole beneficial owner, as the case may be, of the payment, (xi) on account of any Taxes (a) that
are payable other than by deduction or withholding from a payment of the principal of, premium, if any, or interest on the Notes, (b) that would not have been imposed but for a change in law, regulation, or administrative or judicial interpretation
that becomes effective more than 15 days after the payment becomes due or is duly provided for, whichever occurs later or (c) that are required to be withheld by any paying agent from any payment of principal of or interest on any Note, if such
payment can be made without such withholding or deduction by at least one other paying agent or (xii) any combination of (i) through (xi). The Company will also (a) make such withholding or deduction and (b) remit the full amount deducted or
withheld to the relevant authority in accordance with applicable law. Upon the written request of a holder of Notes, the
48
Company will furnish, as soon as reasonably practicable, to such holder of Notes certified copies of tax receipts evidencing such payment by the Company.
If a holder in respect of a beneficial owner has received a refund or credit for any Taxes with respect to which the Company has paid Additional Amounts, such holder shall pay over such
refund to the Company (but only to the extent of such Additional Amounts), net of all out-of-pocket expenses of such holder or beneficial owner, together with any interest paid by the relevant tax authority in respect of such refund.
At least 30 days prior to each date on which any payment under or with respect to the Guarantee of the Company is due and payable, if the Company will be obligated to pay Additional
Amounts with respect to such payment, the Company will deliver to the Trustee an Officers’ Certificate stating the fact that such Additional Amounts will be payable, stating the amounts so payable and will set forth such other information necessary
to enable the Trustee, on behalf of the Company, to pay such Additional Amounts to Holders on the payment date. Whenever in the Indenture there is mentioned, in any context, the payment of principal (and premium, if any), redemption price, interest
or any other amount payable under or with respect to the Notes, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect
thereof.
The obligations of the Company under this Section 907 shall survive the discharge and termination of this Supplemental Indenture and the payment of all amounts under or with respect to
the Guarantee.”
SECTION 810 AMENDMENT TO INDENTURE SECTION 1001.
For purposes of the Notes issued under this Supplemental Indenture, Section 1001(b) is hereby amended and restated in its entirety as follows:
“(b) If, as a result of
(i) a change in, or an amendment
to, the laws (including any regulations, rulings or protocols promulgated thereunder) or treaties of Canada (or any political subdivision or taxing authority thereof or therein);
(ii) any change in or amendment to,
or introduction of, any official position regarding the application, administration or interpretation of such laws, regulations, rulings, protocols or treaties (including a holding, judgment or order by a court of competent jurisdiction); or
(iii) any official proposal of the
aforementioned changes in clauses (i) and (ii) above;
which change, amendment or official proposal is announced or becomes effective on or after the Issue Date of the Notes, the Company has become or would become
obligated to pay, on the next date on which any amount would be payable under or with respect to the Notes, any Additional Amounts in accordance with Section 907 of the Indenture, as amended and restated by this Supplemental Indenture, then the
Company may, at its option, redeem such Notes, as a whole but not in part, at a Redemption Price equal to
49
100% of their principal amount, plus accrued and unpaid interest thereon, if any, to but not including the Redemption Date (subject to the right of Holders on the
relevant record date to receive interest due on the relevant interest payment date), if any; provided that the Company determines, in its good faith judgment, that the obligation to pay such Additional
Amounts cannot be avoided by the use of reasonable commercial measures available to the Company not including substitution of the obligor under such Notes.
The election of the Company to redeem any Notes pursuant to this Section 1001(b) shall be evidenced by a Board Resolution. In case of such redemption, the Company
shall, at least 10 but not more than 60 days prior to the Redemption Date fixed by it (unless a shorter notice period shall be satisfactory to the Trustee), notify the Trustee of such Redemption Date and of the principal amount of such Notes to be
redeemed.”
SECTION 811 AMENDMENT TO INDENTURE SECTION 1004.
For purposes of the Notes issued under this Supplemental Indenture, Section 1004 is hereby amended and restated in its entirety as follows:
“If less than all of the Notes are to be redeemed at any time, selection of Notes of for redemption will be made by the Trustee on a pro rata
basis or by lot or otherwise in accordance with the procedures of DTC, unless the Company notifies the Trustee in writing that the Notes are listed on any national securities exchange, in which case such selection shall be made in compliance with
the requirements of the principal national securities exchange, if any, on which the Notes are listed; provided that no Notes of U.S.$2,000 or less shall be purchased or redeemed in part.
The Trustee shall promptly notify the Company and the Security Registrar in writing of the Securities selected for redemption and, in the case of any Securities selected for partial
redemption, the principal amount thereof to be redeemed.
A new Note in principal amount equal to the unpurchased or unredeemed portion of any Note purchased or redeemed in part will be issued in the name of the holder thereof upon cancellation
of the original Note.”
SECTION 812 AMENDMENT TO INDENTURE SECTION 1005.
For purposes of the Notes issued under this Supplemental Indenture, Section 1005 is hereby amended and restated in its entirety as follows:
“Notice of intention to redeem any Notes pursuant to Section 1001 as so modified by this Supplemental Indenture shall be delivered by or on behalf of the Company to the Holders of the
Notes 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 112 of the Supplemental Indenture. Every such notice of redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price;
50
(c) if less than all Outstanding Notes are to be
redeemed, the identification (and, in the case of a Note to be redeemed in part, the principal amount) of the particular Notes 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 Note 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 Notes are to be
surrendered for payment of the Redemption Price; and
(f) any conditions to the redemption.
Any redemption pursuant to Section 1001 as so modified by this Supplemental Indenture (and any related notice of 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 Notes 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 Notes that were to 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 Notes 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.
Notice of redemption of Notes to be redeemed shall be given by the Company or, at its request, by the Trustee in the name and at the expense of the Company. Any inadvertent defect in a
notice of redemption, including an inadvertent failure to deliver such notice, to any Holder whose Notes are selected for redemption will not impair or affect the validity of the redemption of any the Notes of any other Holder that are to be
redeemed.”
51
SECTION 813 MISCELLANEOUS AMENDMENTS.
Notwithstanding anything to the contrary in the Indenture, including Section 204 thereof, this Supplemental Indenture and the Notes may be executed and authenticated by manual, facsimile
or electronic signature.
[Remainder of the Page Intentionally Left Blank]
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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] | |||
| ROGERS COMMUNICATIONS CANADA INC., | ||||
|
by:
|
[REDACTED] | |||
| Name: | [REDACTED] | |||
| Title: | [REDACTED] | |||
|
by:
|
[REDACTED] | |||
| Name: | [REDACTED] | |||
| Title: | [REDACTED] | |||
[Signature Page to the Supplemental Indenture]
|
THE BANK OF NEW YORK MELLON, as Trustee
|
||||
|
By:
|
/s/ Glenn McKeever
|
|||
| Name: | Glenn McKeever | |||
| Title: | Vice President |
|||
[Signature Page to the Supplemental Indenture]
Exhibit 99.3
Execution Version
ROGERS COMMUNICATIONS INC.,
as issuer of the Notes,
ROGERS COMMUNICATIONS CANADA INC.,
as Guarantor
and
THE BANK OF NEW YORK MELLON,
as Trustee
________________________________________
TWENTIETH SUPPLEMENTAL INDENTURE
Dated as of February 9, 2024
to
INDENTURE
Dated as of August 6, 2008
________________________________________
5.30% Senior Notes due 2034
TABLE OF CONTENTS
| PAGE |
||
|
ARTICLE ONE
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||
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DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
|
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|
SECTION 101
|
DEFINITIONS
|
2
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SECTION 102
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OTHER DEFINITIONS
|
10
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SECTION 103
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EFFECT OF SUPPLEMENTAL INDENTURE
|
10
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SECTION 104
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INDENTURE REMAINS IN FULL FORCE AND EFFECT
|
11
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SECTION 105
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INCORPORATION OF INDENTURE
|
11
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SECTION 106
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COUNTERPARTS
|
11
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SECTION 107
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EFFECT OF HEADINGS AND TABLE OF CONTENTS
|
11
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SECTION 108
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SUCCESSORS AND ASSIGNS
|
11
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SECTION 109
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SEPARABILITY CLAUSE
|
11
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SECTION 110
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BENEFITS OF SUPPLEMENTAL INDENTURE
|
12
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SECTION 111
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GOVERNING LAW
|
12
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SECTION 112
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NOTICES, ETC., TO TRUSTEE AND COMPANY.
|
12
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ARTICLE TWO
|
||
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FORM OF THE NOTES
|
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SECTION 201
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FORMS GENERALLY
|
12
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SECTION 202
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FORM OF FACE OF NOTE
|
13
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SECTION 203
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FORM OF REVERSE OF NOTE
|
16
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SECTION 204
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ASSIGNMENT FORM; CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION OF TRANSFER RESTRICTED NOTES
|
20
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SECTION 205
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SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
|
22
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ARTICLE THREE
|
||
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THE NOTES
|
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SECTION 301
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TITLE AND TERMS
|
22
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SECTION 302
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DENOMINATIONS
|
23
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SECTION 303
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NOTES TO BE SECURED IN CERTAIN EVENTS
|
23
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SECTION 304
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DISCHARGE
|
24
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SECTION 305
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TRANSFER AND EXCHANGE OF DEFINITIVE NOTES FOR DEFINITIVE NOTES.
|
25
|
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SECTION 306
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TRANSFER OF A DEFINITIVE NOTE FOR A BENEFICIAL INTEREST IN A GLOBAL NOTE.
|
25
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i
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SECTION 307
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TRANSFER AND EXCHANGE OF GLOBAL NOTES.
|
25
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SECTION 308
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CANCELLATION OR ADJUSTMENT OF GLOBAL NOTE.
|
26
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SECTION 309
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OBLIGATIONS WITH RESPECT TO TRANSFERS AND EXCHANGES OF NOTES.
|
26
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SECTION 310
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NO OBLIGATION OF THE TRUSTEE.
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27
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SECTION 311
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NON-COMPLIANT TRANSFERS NULL AND VOID.
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27
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SECTION 312
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DEFINITIVE NOTES.
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27
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ARTICLE FOUR
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REMEDIES UPON CHANGE IN CONTROL
|
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SECTION 401
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ADDITIONAL EVENT OF DEFAULT.
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28
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SECTION 402
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ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT
|
30
|
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SECTION 403
|
RESERVED.
|
31
|
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SECTION 404
|
CHANGE IN CONTROL OFFER
|
31
|
| ARTICLE FIVE | ||
| ADDITIONAL COVENANTS | ||
| SECTION 501 | RESTRICTED SUBSIDIARIES | 33 |
| SECTION 502 | LIMITATION ON SECURED DEBT. | 34 |
| SECTION 503 | LIMITATION ON SALE AND LEASEBACK TRANSACTIONS | 34 |
| SECTION 504 | LIMITATION ON RESTRICTED SUBSIDIARY DEBT | 34 |
| SECTION 505 | WAIVER OF CERTAIN COVENANTS | 35 |
| ARTICLE SIX | ||
| CHANGE IN CONTROL PROVISIONS | ||
| SECTION 601 | EFFECT OF CHANGE IN CONTROL PURCHASE NOTICE | 35 |
| SECTION 602 | DEPOSIT OF CHANGE IN CONTROL PURCHASE PRICE | 36 |
| SECTION 603 | REPAYMENT TO THE COMPANY | 36 |
| ARTICLE SEVEN | ||
| GUARANTEE | ||
| SECTION 701 | GUARANTEE | 37 |
| SECTION 702 | RELEASE OF GUARANTOR | 39 |
| SECTION 703 | AMALGAMATION, CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE | 40 |
| SECTION 704 | PAYMENT OF ADDITIONAL AMOUNTS | 41 |
| SECTION 705 | RIGHT OF REDEMPTION; ELECTION TO REDEEM; NOTICE TO TRUSTEE | 43 |
ii
| SECTION 706 | PERSONS DEEMED OWNERS | 43 |
| ARTICLE EIGHT | ||
| AMENDMENTS TO INDENTURE | ||
| SECTION 801 | AMENDMENT TO INDENTURE SECTION 106. | 44 |
| SECTION 802 | AMENDMENT TO INDENTURE SECTION 115 | 44 |
| SECTION 803 | AMENDMENT TO INDENTURE SECTION 401. | 45 |
| SECTION 804 | AMENDMENT TO INDENTURE SECTION 401. | 45 |
| SECTION 805 | AMENDMENT TO INDENTURE ARTICLE FIVE | 45 |
| SECTION 806 | AMENDMENT TO INDENTURE SECTION 701 | 46 |
| SECTION 807 | AMENDMENT TO INDENTURE SECTION 906 | 46 |
| SECTION 808 | AMENDMENT TO INDENTURE SECTION 603. | 47 |
| SECTION 809 | AMENDMENT TO INDENTURE SECTION 907. | 47 |
| SECTION 810 | AMENDMENT TO INDENTURE SECTION 1001. | 49 |
| SECTION 811 | AMENDMENT TO INDENTURE SECTION 1004. | 50 |
| SECTION 812 | AMENDMENT TO INDENTURE SECTION 1005. | 50 |
| SECTION 813 | MISCELLANEOUS AMENDMENTS. | 52 |
iii
TWENTIETH SUPPLEMENTAL INDENTURE dated as of February 9, 2024 (this “Supplemental Indenture”), among Rogers Communications Inc., a corporation organized under the laws of the Province of British Columbia (hereinafter
called the “Company”), Rogers Communications Canada Inc., a corporation organized under the laws of Canada (hereinafter called “RCCI”), and The Bank of New York Mellon, a New York banking corporation, as trustee (hereinafter called the “Trustee”).
WHEREAS, the Company and the Trustee are parties to an indenture dated as of August 6, 2008 (as the same may from time to time be supplemented or amended (other than by a Series Supplement), the “Indenture”);
WHEREAS, the Company and the Trustee have previously entered into (i) a Series Supplement dated as of August 6, 2008 pursuant to which the Company issued U.S.$1,400,000,000 aggregate principal amount of 6.80% Senior
Notes due 2018; (ii) a Series Supplement dated as of August 6, 2008 pursuant to which the Company issued U.S.$350,000,000 aggregate principal amount of 7.50% Senior Notes due 2038; (iii) a Series Supplement dated as of March 7, 2013 pursuant to
which the Company issued U.S.$500,000,000 aggregate principal amount of 3.00% Senior Notes due 2023, (iv) a Series Supplement dated as of March 7, 2013 pursuant to which the Company issued U.S.$500,000,000 aggregate principal amount of 4.50% Senior
Notes due 2043; (v) a Series Supplement dated as of October 2, 2013 pursuant to which the Company issued U.S.$850,000,000 aggregate principal amount of 4.10% Senior Notes due 2023; (vi) a Series Supplement dated as of October 2, 2013 pursuant to
which the Company issued U.S.$650,000,000 aggregate principal amount of 5.45% Senior Notes due 2043; (vii) a Series Supplement dated as of March 10, 2014 pursuant to which the Company issued U.S.$1,050,000,000 aggregate principal amount of 5.00%
Senior Notes due 2044; (viii) a Series Supplement dated as of December 8, 2015 pursuant to which the Company issued U.S.$700,000,000 aggregate principal amount of 3.625% Senior Notes due 2025; (ix) a Series Supplement dated as of November 4, 2016
pursuant to which the Company issued U.S.$500,000,000 aggregate principal amount of 2.90% Senior Notes due 2026; (x) a Series Supplement dated as of February 8, 2018 pursuant to which the Company issued U.S.$750,000,000 aggregate principal amount
of 4.300% Senior Notes due 2048; (xi) a Series Supplement dated as of April 30, 2019 pursuant to which the Company issued U.S.$1,250,000,000 aggregate principal amount of 4.350% Senior Notes due 2049; (xii) a Series Supplement dated as of November
12, 2019 pursuant to which the Company issued U.S.$1,000,000,000 aggregate principal amount of 3.700% Senior Notes due 2049; (xiii) a Series Supplement dated June 22, 2020 pursuant to which the Company issued U.S.$750,000,000 aggregate principal
amount of Floating Rate Senior Notes due 2022; (xiv) a Series Supplement dated as of March 11, 2022 pursuant to which the Company issued U.S.$1,000,000,000 aggregate principal amount of 2.95% Senior Notes due 2025; (xv) a Series Supplement dated as
of March 11, 2022 pursuant to which the Company issued U.S.$1,300,000,000 aggregate principal amount of 3.20% Senior Notes due 2027; (xvi) a Series Supplement dated as of March 11, 2022 pursuant to which the Company issued U.S.$2,000,000,000
aggregate principal amount of 3.80% Senior Notes due 2032; (xvii) a Series Supplement dated as of March 11, 2022 pursuant to which the Company issued U.S.$750,000,000 aggregate principal amount of 4.50% Senior Notes due 2042; and (xviii) a Series
Supplement dated as of March 11, 2022 pursuant to
1
which the Company issued U.S.$2,000,000,000 aggregate principal amount of 4.55% Senior Notes due 2052;
WHEREAS, the Company, RCCI (formerly known as Rogers Cable & Data Centres Inc.) and the Trustee have previously entered into a First Amending Supplemental Indenture dated as of January 1, 2016 pursuant to which the
Series Supplement in each of clause (i) through (viii) above was supplemented and amended to, among other things, provide for the assumption of the guarantee thereunder by RCCI;
WHEREAS, concurrently with the execution of this Supplemental Indenture, the Company and the Trustee are entering into a Series Supplement dated as of the date hereof pursuant to which the Company will issue
$1,250,000,000 aggregate principal amount of 5.00% Senior Notes due 2029;
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 Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel of the Company, in each case complying with Sections 101, 103, 104, 204 and 803 of the Indenture; and
WHEREAS, pursuant to the Indenture, the Board of Directors has duly authorized the establishment of the 5.30% Senior Notes due 2034 of the Company (the “Notes”) with the form, terms and conditions as hereinafter set
forth.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are acknowledged by the parties hereto, the parties hereto agree, for the equal and proportionate benefit of all Holders of the
Notes, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101 DEFINITIONS.
Capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture. For greater certainty, notwithstanding the Company’s adoption of IFRS 16, Leases, lease liabilities with
respect to leases that were classified as operating leases under prior accounting standards do not constitute “Capital Lease Obligations” or “Debt” as defined in the Indenture for purposes of the Notes.
2
“Additional Notes” means additional Notes created and issued by the Company after the Issue Date in accordance with this Supplemental Indenture having the same terms and conditions under this Supplemental Indenture as
the Initial Notes (except for the issue date and, if applicable, the date from which interest accrues and the date of the first payment of interest thereon).
“Applicable Basis Points” means 20 basis points.
“Applicable Procedures” means, with respect to any transfer or exchange of or for beneficial interests in any Global Note, the rules and procedures of the Depositary for such Global Note, Euroclear and/or Clearstream
(each a “Clearing Agency”), in each case to the extent applicable to such transaction and as in effect from time to time.
“Attributable Debt” means, as of the date of its determination, the present value (discounted semi-annually at the interest rate implicit in the terms of the lease) of the obligation of a lessee for rental payments
pursuant to any Sale and Leaseback Transaction (reduced by the amount of the rental obligations of any sublessee of all or part of the same property) during the remaining term of such Sale and Leaseback Transaction (including any period for which
the lease relating thereto has been extended), such rental payments not to include amounts payable by the lessee for maintenance and repairs, insurance, taxes, assessments and similar charges and for contingent rates (such as those based on sales);
provided, however, that in the case of any Sale and Leaseback Transaction in which the lease is terminable by the lessee upon the payment of a penalty, Attributable
Debt shall mean the lesser of the present value of (i) the rental payments to be paid under such Sale and Leaseback Transaction until the first date (after the date of such determination) upon which it may be so terminated plus the then applicable
penalty upon such termination and (ii) the rental payments required to be paid during the remaining term of such Sale and Leaseback Transaction (assuming such termination provision is not exercised).
“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).
“Board of Directors” means, with respect to the Company, either the board of directors of the Company or any committee of that board duly authorized to act and, with respect to any other Person, the board of directors
or committee of such Person serving, or appointed by such Person to perform, a substantially similar function.
“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.
“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
3
Person. To the extent necessary to comply with the requirements of the provisions of Trust Indenture Act Sections 310 through 317 as they are applicable to the Company, the term “Company” shall include any other obligor with respect to the Notes
for the purposes of complying with such provisions.
“Company Request” or “Company Order” means a written request or order signed in the name of the Company by at least one Authorized Officer.
“Consolidated Net Tangible Assets” means the Consolidated Tangible Assets of any Person, less such Person’s current liabilities.
“Consolidated Tangible Assets” means the Tangible Assets of any Person after eliminating inter-company items, determined on a Consolidated basis in accordance with GAAP including appropriate deductions for any minority
interest in Tangible Assets of such Person’s Restricted Subsidiaries.
“Definitive Note” means a certificated Initial Note or Additional Note registered in the name of the Holder thereof and issued in accordance with Article Three hereof substantially in the form set forth in Section 202,
except that such Initial Note or Additional Note shall not bear the Global Notes Legend (as defined below) and shall not have the “Schedule of Exchanges of Interests in the Global Note” attached thereto.
“Depositary” or “DTC” means the Depositary Trust Company.
“Disqualified Stock” means any Capital Stock of the Company or any Restricted Subsidiary which, by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable at the option
of the holder) or upon the happening of any event, matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof, in whole or in part, on or prior to the Maturity Date
for cash or securities constituting Debt; provided that shares of Preferred Stock of the Company or any Restricted Subsidiary that are issued with the benefit of provisions requiring a change in control
offer to be made for such shares in the event of a change in control of the Company or of such Restricted Subsidiary, which provisions have substantially the same effect as the relevant provisions of Sections 401 and 404 herein, shall not be deemed
to be “Disqualified Stock” solely by virtue of such provisions. For purposes of this definition, the term “Debt” includes Inter−Company Subordinated Debt.
“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 specified by the Trustee as available for use in connection with its services hereunder.
“Excluded Assets” means (i) all assets of any Person other than the Company or a Restricted Subsidiary; (ii) Investments in the Capital Stock of an Unrestricted Subsidiary held by the Company or a Restricted
Subsidiary; (iii) any Investment by the Company or a Restricted Subsidiary to the extent paid for with cash or other property that constitutes Excluded Assets or Excluded Securities, so long as at the time of acquisition thereof and after giving
effect thereto there exists no Default or Event of Default; and (iv) proceeds of the sale of any Excluded Assets
4
or Excluded Securities received by the Company or any Restricted Subsidiary from a Person other than the Company or a Restricted Subsidiary.
“Excluded Securities” means any Debt, Preferred Stock or Common Stock issued by the Company, or any Debt or Preferred Stock issued by any Restricted Subsidiary, in either case to an Affiliate thereof other than the
Company or a Restricted Subsidiary, provided that, at all times, such Excluded Securities shall:
(i) in the case of Debt not owed to the Company or a Restricted Subsidiary, constitute Inter−Company Subordinated Debt;
(ii) in the case of Debt, not be guaranteed by the Company or any Restricted Subsidiary unless such guarantee shall constitute Inter−Company Subordinated Debt;
(iii) in the case of Debt, not be secured by any assets or property of the Company or any Restricted Subsidiary;
(iv) in the case of Debt or Preferred Stock, provide by its terms that interest or dividends thereon shall be payable only to the extent that, after giving effect to any such payment, no Default or Event of
Default shall have occurred and be continuing; and
(v) in the case of Debt or Preferred Stock, provide by its terms that no payment (other than payments in the form of Excluded Securities) on account of principal (at maturity, by operation of sinking fund or
mandatory redemption or otherwise) or other payment on account of redemption, repurchase, retirement or acquisition of such Excluded Security shall be permitted until the earlier of (x) the Stated Maturity for the principal of the Notes or (y) the
date on which all principal of, premium, if any, and interest on the Notes shall have been duly paid or provided for in full.
“Exempted Secured Debt” means any Debt secured by any Lien or any conditional sale or other title retention agreement:
(i) incurred or entered into on or after the Issue Date to finance the acquisition, improvement or construction of such property and either secured by Purchase Money Obligations or Liens placed on such
property within 180 days of acquisition, improvement or construction and securing Debt not to exceed 2.5% of the Company’s Consolidated Net Tangible Assets at any time outstanding;
(ii) on Principal Property or the stock or Debt of Restricted Subsidiaries and existing at the time of acquisition of the property, stock or Debt;
(iii) owing to the Company or any other Restricted Subsidiary; or
(iv) existing at the time a corporation or other Person becomes a Restricted Subsidiary.
“Existing Notes” means any of the 4.35% Senior Notes due 2024, 4.00% Senior Notes due 2024, 2.95% Senior Notes due 2025, 3.10% Senior Notes due 2025, 3.625% Senior
5
Notes due 2025, 5.65% Senior Notes due 2026, 2.90% Senior Notes due 2026, 3.65% Senior Notes due 2027, 3.80% Senior Notes due 2027, 3.20% Senior Notes due 2027, 5.70% Senior Notes due 2028, 4.40% Senior Notes due 2028, 3.30% Senior Notes due
2029, 3.75% Senior Notes due 2029, 3.25% Senior Notes due 2029, 5.80% Senior Notes due 2030, 2.90% Senior Notes due 2030, 3.80% Senior Notes due 2032, 4.25% Senior Notes due 2032, 8.75% Senior Debentures due 2032, 5.90% Senior Notes due 2033, 7.50%
Senior Notes due 2038, 6.68% Senior Notes due 2039, 6.75% Senior Notes due 2039, 6.11% Senior Notes due 2040, 6.56% Senior Notes due 2041, 4.50% Senior Notes due 2042, 4.50% Senior Notes due 2043, 5.45% Senior Notes due 2043, 5.00% Senior Notes due
2044, 4.30% Senior Notes due 2048, 4.25% Senior Notes due 2049, 4.35% Senior Notes due 2049, 3.70% Senior Notes due 2049, 4.55% Senior Notes due 2052 and 5.25% Senior Notes due 2052, in each case for which the Company is a co−obligor or an obligor,
as applicable.
“Fitch” means Fitch Ratings, Inc. or any successor ratings agency.
“Generally Accepted Accounting Principles” or “GAAP” means generally accepted accounting principles, in effect in Canada, as established by the Chartered Professional Accountants of Canada and as
applied from time to time by the Company in the preparation of its consolidated financial statements.
“Government Obligations” means securities that are:
(i) direct obligations of the United States of America for the payment of which its full faith and credit is pledged, or
(ii) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America, the payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America.
“Guarantor” means (i) RCCI unless and until the Guarantee is released in accordance with its terms and (ii) any other Person that provides a guarantee in respect of any of the Company’s obligations in respect of the
Notes, pursuant to a supplement to this Supplemental Indenture or otherwise, unless and until such guarantee is released in accordance with its terms.
“Indenture” has the meaning set forth in the recitals of this Supplemental Indenture.
“Initial Notes” means the U.S.$1,250,000,000 aggregate principal amount of Notes issued on the Issue Date.
“Investment” means (i) directly or indirectly, any advance, loan or capital contribution to, the purchase of any stock, bonds, notes, debentures or other securities of, the acquisition, by purchase or otherwise, of all
or substantially all of the business or assets or stock or other evidence of beneficial ownership of, any Person or making of any investment in any Person, (ii) the designation of any Restricted Subsidiary as an Unrestricted Subsidiary and (iii)
the transfer of any assets or properties from the Company or a Restricted Subsidiary to any Unrestricted Subsidiary, other than the transfer of assets or properties made in the ordinary
6
course of business. Investments shall exclude extensions of trade credit on commercially reasonable terms in accordance with normal trade practices.
“Investment Grade Rating” means a rating equal to or higher than BBB- (or the equivalent) by S&P, Baa3 (or the equivalent) by Moody’s or BBB- (or the equivalent) by Fitch.
“Issue Date” means February 9, 2024, the initial issue date of the Notes.
“Moody’s” means Moody’s Investors Service, Inc. or any successor ratings agency.
“Net Tangible Assets” means the Tangible Assets of any Person, less such Person’s current liabilities.
“Notes” has the meaning set forth in the recitals of this Supplemental Indenture. For the avoidance of doubt, “Notes” shall include the Additional Notes, if any.
“Par Call Date” means November 15, 2033.
“Permitted Liens” means any of the following Liens
(i) Liens for taxes, rates and assessments not yet due or, if due, the validity of which is being contested diligently and in good faith by appropriate proceedings by the Company or any of the Restricted
Subsidiaries (as applicable); and Liens for the excess of the amount of any past due taxes for which a final assessment has not been received over the amount of such taxes as estimated and paid;
(ii) the Lien of any judgment rendered which is being contested diligently and in good faith by appropriate proceedings by the Company, or any of the Restricted Subsidiaries, as the case may be, and which does
not have a material adverse effect on the ability of the Company and the Restricted Subsidiaries to operate the business or operations of the Company;
(iii) Liens on Excluded Assets;
(iv) pledges or deposits under worker’s compensation laws, unemployment insurance laws or similar legislation or good faith deposits in connection with bids, tenders, contracts (other than for the payment of
Debt) or leases or deposits of cash or bonds or other direct obligations of the United States, Canada or any Canadian province to secure surety or appeal bonds or deposits as security for contested taxes or import duties or for the payment of
rents;
(v) Liens imposed by law, such as carriers’, warehousemen’s and mechanics’ liens, or other liens arising out of judgments or awards with respect to which an appeal or other proceeding for review is being
prosecuted (and as to which any foreclosure or other enforcement proceeding shall have been effectively stayed);
7
(vi) Liens for property taxes not yet subject to penalties for non−payment or which are being contested in good faith and by appropriate proceedings (and as to which foreclosure or other enforcement proceedings
shall have been effectively stayed);
(vii) Liens in favor of issuers of surety bonds issued in the ordinary course of business;
(viii) minor survey exceptions, minor encumbrances, easements or reservations of or rights of others for rights of way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning
or other restrictions as to the use of real properties or Liens incidental to the conduct of the business of the Person incurring them or the ownership of its properties which were not incurred in connection with Debt or other extensions of credit
and which do not in the aggregate materially detract from the value of such properties or materially impair their use in the operation of the business of such Person;
(ix) Liens in favor of Bell Canada (or any successor) under any partial system agreement or related agreement providing for the construction and installation by Bell Canada of cables, attachments, connectors,
support structures, closures and other equipment in accordance with the plans and specifications of the Company or any Restricted Subsidiary and the lease by Bell Canada of such equipment to the Company or any Restricted Subsidiary in accordance
with tariffs published by Bell Canada from time to time as approved by regulatory authorities, the absence of which would materially and adversely affect the Company and its Restricted Subsidiaries considered as a whole; and
(x) any other Lien existing on the Issue Date.
“Principal Property” means, as of any date of determination, any land, land improvements or building (and associated factory, laboratory, office and switching equipment (excluding all products marketed by the Company
or any of its Subsidiaries)) constituting a manufacturing, development, warehouse, service, office or operating facility owned by or leased to the Company or a Restricted Subsidiary, located within Canada and having an acquisition cost plus
capitalized improvements in excess of 0.25% of Consolidated Net Tangible Assets of the Company as of such date of determination, other than any such property (i) which the Board of Directors determines is not of material importance to the Company
and its Restricted Subsidiaries taken as a whole, (ii) which is not used in the ordinary course of business or (iii) in which the interest of the Company and all its Subsidiaries does not exceed 50%.
“Rating Agencies” means S&P, Moody’s and Fitch, and each of such Rating Agencies is referred to individually as a “Rating Agency”.
“Rating Date” means the date which is 90 days prior to the earlier of (i) a Change in Control and (ii) public notice of the occurrence of a Change in Control or of the intention of the Company to effect a Change in
Control.
“Rating Decline” means the occurrence of the following on, or within 90 days after, the date of public notice of the occurrence of a Change in Control or of the intention by the Company to effect a Change in Control
(which period shall be extended so long as the rating of the Notes is under publicly announced consideration for possible downgrade by any of the
8
Rating Agencies): (i) in the event the Notes are assigned an Investment Grade Rating by at least two of the three Rating Agencies on the Rating Date, the rating of the Notes by at least two of the three Rating Agencies shall be below an
Investment Grade Rating; or (ii) in the event the Notes are rated below an Investment Grade Rating by at least two of the three Rating Agencies on the Rating Date, the rating of the Notes by at least two of the three Rating Agencies shall be
decreased by one or more gradations (including gradations within rating categories as well as between rating categories).
“S&P” means S&P Global Ratings, a division of S&P Global Inc., or any successor rating agency.
“Sale and Leaseback Transaction” means any arrangement with any Person providing for the leasing by the Company or any Restricted Subsidiary of any Principal Property (whether such Principal Property is now owned or
hereafter acquired) that has been or is to be sold or transferred by the Company or such Restricted Subsidiary to such Person, other than (i) temporary leases for a term, including renewals at the option of the lessee, of not more than three years,
(ii) leases between the Company and a Restricted Subsidiary or between Restricted Subsidiaries and (iii) leases of Principal Property executed by the time of, or within 180 days after the latest of, the acquisition, the completion of construction
or improvement (including any improvements on property which will result in such property becoming Principal Property), or the commencement of commercial operation of such Principal Property.
“Secured Debt” means:
(a) Debt of the Company or any Restricted Subsidiary secured by any Lien upon any Principal Property or the stock or Debt of a Restricted Subsidiary (other than a Restricted Subsidiary that guarantees the
payment obligations of the Company under the Notes); or
(b) any conditional sale or other title retention agreement covering any Principal Property or Restricted Subsidiary;
but does not include any Exempted Secured Debt.
“SEDAR+” means the successor system to the Canadian securities administrators’ System for Electronic Document Analysis and Retrieval, and any further successor system of the Canadian securities administrators for the
transmission, receipt, acceptance, review and dissemination of documents filed in electronic format.
“Tangible Assets” means, at any date, the gross book value as shown by the accounting books and records of any Person of all its property both real and personal, less (i) the net book value of all its licenses,
patents, patent applications, copyrights, trademarks, trade names, goodwill, non−compete agreements or organizational expenses and other like intangibles, (ii) unamortized Debt discount and expenses, (iii) all reserves for depreciation,
obsolescence, depletion and amortization of its properties and (iv) all other proper reserves which in accordance with GAAP should be provided in connection with the business conducted by such Person.
9
“Trustee” means the Person named as the “Trustee” in the first paragraph of this Supplemental Indenture, until a successor shall have become such pursuant to the applicable provisions of the Indenture, and thereafter
“Trustee” shall mean such successor Trustee.
SECTION 102 OTHER DEFINITIONS.
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DEFINED TERM
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DEFINED IN SECTION
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Agent Member
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310
|
|
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Authorized Signatory
|
201
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|
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Beneficial Interest Owner
|
313
|
|
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Change in Control
|
401
|
|
|
Change in Control Offer
|
404(a)
|
|
|
Change in Control Purchase Date
|
404(a)
|
|
|
Change in Control Purchase Notice
|
404(b)
|
|
|
Change in Control Purchase Price
|
404(a)
|
|
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Change in Control Triggering Event
|
401
|
|
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DTC
|
201
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|
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Edward S. Rogers
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401
|
|
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Family Percentage Holding
|
401
|
|
|
Financial Reports
|
805
|
|
|
Global Note
|
201
|
|
|
Global Notes Legend
|
202
|
|
|
Guarantee
|
701(a)
|
|
|
Guaranteed Obligations
|
701(a)
|
|
|
H.15
|
203
|
|
|
H.15 TCM
|
203
|
|
|
Instructions
|
801
|
|
|
Maturity Date
|
301
|
|
|
Member of the Rogers Family
|
401
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|
|
Permitted Residuary Beneficiary
|
401
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|
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Perpetuity Date
|
401
|
|
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Qualifying Trust
|
401
|
|
|
RCCI
|
Preamble
|
|
|
Record Date
|
202
|
|
|
Remaining Life
|
301
|
|
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Spouse
|
401
|
|
|
Successor Guarantor
|
703
|
|
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Treasury Rate
|
203
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SECTION 103 EFFECT OF SUPPLEMENTAL INDENTURE.
Upon the execution and delivery of this Supplemental Indenture by the Company, RCCI 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;
10
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 issued under the Indenture prior to, on or after the Issue Date. 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.
SECTION 107 EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof. Unless otherwise expressly specified, references in this Supplemental Indenture
to specific Article numbers or Section numbers refer to Articles and Sections contained in this Supplemental Indenture, and not the Indenture or any other document.
SECTION 108 SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Supplemental Indenture by the Company and RCCI shall bind their respective successors and permitted assigns (if any), whether so expressed or not. All covenants and agreements of
the Trustee in this Supplemental Indenture shall bind its successors and permitted assigns (if any), whether so expressed or not.
SECTION 109 SEPARABILITY CLAUSE.
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In case any provision in this Supplemental Indenture or in the Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 110 BENEFITS OF SUPPLEMENTAL INDENTURE.
Nothing in this Supplemental Indenture or in the Notes, express or implied, shall give to any Person (other than the parties hereto, any Paying Agent and any Security Registrar, and their successors hereunder, and the
Holders) any benefit or any legal or equitable right, remedy or claim under this Supplemental Indenture or in respect of the Notes.
SECTION 111 GOVERNING LAW.
This Supplemental Indenture and the Notes shall be governed by and construed in accordance with the laws of the State of New York. This Supplemental Indenture shall be subject to the provisions of the Trust Indenture
Act that are required or deemed to be part of this Supplemental Indenture and shall, to the extent applicable, be governed by such provisions.
SECTION 112 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 Supplemental Indenture or the 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 Trustee at its Corporate Trust Office, Attention:
Global Trust Finance; and (b) the Company by the Trustee or any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if made, given, furnished or delivered in writing to the Company to 333 Bloor Street
East, 10th Floor, Toronto, Ontario, Canada, M4W 1G9, Attention: Vice-President, Treasurer or by email to rogers.treasury@rci.rogers.com, with a copy to the Chief Legal Officer, email rogerslegal@rci.rogers.com, 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 112.
ARTICLE TWO
FORM OF THE NOTES
SECTION 201 FORMS GENERALLY.
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(a) 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 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 Authorized Signatory executing such Notes, as evidenced
by such Authorized Signatory’s execution of the Notes (but which shall not affect the rights or duties of the Trustee). Any portion of the text of any Note may be set forth on the reverse thereof, with an appropriate reference thereto on the face
of the Note.
The Definitive Notes shall be printed, lithographed or engraved or produced by any combination of these methods or may be produced in any other manner permitted by the rules of the Depositary or any securities exchange
on which the Notes may be listed, all as determined by any Authorized Signatory executing such Notes, as evidenced by such Authorized Signatory’s execution of such Notes.
(b) 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 represented by one or more Global Securities substantially in the form set forth in this Article deposited with the Trustee as custodian for the Depositary, and duly executed by the Company and
authenticated by the Trustee as hereinafter provided. The Depositary for such Global Securities shall be the Depository Trust Company, a New York corporation (“DTC”). The aggregate principal amount of the Global Securities may from time to time
be increased or decreased by adjustments made on the records of the Depositary or its nominee, or of the Trustee, as custodian for the Depositary or its nominee, as hereinafter provided.
The Notes 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 (each, an “Authorized Signatory”). The signature of any such Authorized
Officer or director on the Notes may be a manual or electronic signature. 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 FACE 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 and Sections 203 and 204:
[Insert only for Global Notes (the “Global Notes Legend”): UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION (“DTC”) TO THE COMPANY (HEREINAFTER REFERRED TO) OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO., OR IN SUCH OTHER NAME AS IS
13
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC, AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL SINCE THE REGISTERED HOLDER HEREOF, CEDE & CO., HAS A PROPERTY INTEREST IN THE SECURITIES REPRESENTED BY THIS CERTIFICATE HEREIN AND IT IS A VIOLATION OF ITS RIGHTS FOR ANOTHER PERSON TO HOLD, TRANSFER OR DEAL WITH THIS
CERTIFICATE.
THIS NOTE IS A GLOBAL SECURITY WITHIN THE MEANING OF THE BASE INDENTURE (HEREINAFTER REFERRED TO). THIS NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE BASE INDENTURE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE
BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (A) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO THE INDENTURE, (B) THIS NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART
PURSUANT TO SECTION 207(B) OF THE BASE INDENTURE, (C) THIS NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 211 OF THE BASE INDENTURE AND (D) EXCEPT AS OTHERWISE PROVIDED IN SECTION 207(B) OF THE BASE INDENTURE, THIS
SECURITY MAY BE TRANSFERRED, IN WHOLE BUT NOT IN PART, ONLY (X) BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, (Y) BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR (Z) BY THE DEPOSITARY OR ANY NOMINEE TO A
SUCCESSOR DEPOSITARY OR TO A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.]
ROGERS COMMUNICATIONS INC.
5.30% SENIOR NOTES DUE 2034
|
No.
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CUSIP: 775109 DF5
|
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ISIN: US775109DF56
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Rogers Communications Inc., a corporation organized under the laws of the Province of British Columbia (herein called the “Company”, which term includes any successor entity under the Indenture hereinafter referred
to), for value received, hereby promises to pay to Cede & Co. or registered assigns, the principal sum of ____________ U.S. dollars [Note: Insert if a Global Security: (as revised by the Schedule of
Increases and Decreases in Global Note attached hereto)] on February 15, 2034, at the office or agency of the Company referred to below, and to pay accrued interest on such principal amount in arrears, in semi-annual payments on February 15 and
August 15 (each herein called an “Interest Payment Date”) (or, if such day is not a Business Day, the Interest Payment Date will be postponed to the next succeeding day that
14
is a Business Day, and no further interest will accrue in respect of such postponement) of each year, beginning on August 15, 2024, which interest shall accrue from and including February 9, 2024 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, at a rate of 5.30% per annum, until the principal hereof is paid or duly provided for, and (to the extent lawful) to pay interest on any
overdue interest at the rate borne by the Notes from the date of the Interest Payment Date on which such overdue interest becomes payable to the date payment of such interest has been made or duly provided for.
The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in 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 February 1 or August 1, as applicable (whether or not a Business Day), immediately preceding the related Interest Payment Date (such date, the “Regular Record Date”) for such
interest. Any such interest not so punctually paid or duly provided for, and interest on such Default Interest, at the interest rate borne by the Notes, to the extent lawful, shall forthwith cease to be payable to the Holder on such Regular Record
Date, and may be paid to the Person in whose name this Note (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Default Interest to be fixed by the Trustee, notice whereof
shall be given to Holders of Notes not less than 10 days prior to such Special Record Date, or may be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Notes may be listed,
and upon such notice as may be required by such exchange, all as more fully provided in said Indenture.
Payment of the principal of (and premium, if any) and interest on this Note will be made at the office or agency of the Company maintained for that purpose in the City of New York (which initially shall be the
Corporate Trust Office of the Trustee), and if the Company shall designate and maintain an additional office or agency for such purpose, also at such additional office or agency, in U.S. dollars. Notwithstanding the foregoing, the final payment of
principal shall be payable only upon surrender of this Note to the Paying Agent.
For any period, interest on this Note shall be calculated on the basis of a 360-day year, consisting of twelve 30-day months, and, for any period shorter than six months, on the basis of the actual number of days
elapsed per 30-day month. For the purposes of the Interest Act (Canada), the yearly rate of interest which is equivalent to the rate payable hereunder is the rate payable multiplied by the actual number of days in the year and divided by 360.
Reference is hereby made to the further provisions of this Note set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
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, facsimile 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 State of New York applicable
therein.
15
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
Dated:
| ROGERS COMMUNICATIONS INC. | ||||
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By:
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| Name: | ||||
| Title: | ||||
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By:
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| Name: | ||||
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SECTION 203 FORM OF REVERSE OF NOTE
This Note is one of a duly authorized issue of securities of the Company designated as its 5.30% SENIOR NOTES DUE 2034 (herein called the “Notes”), issued under an indenture (as the same may from time to time be
supplemented or amended (other than by a Series Supplement), herein called the “Base Indenture”) dated as of August 6, 2008, between the Company and The Bank of New York Mellon, as trustee (herein called the “Trustee”, which term includes any
successor trustee thereunder), as supplemented and amended by the Twentieth Supplemental Indenture dated as of February 9, 2024, among the Company, as issuer of the Notes, the Trustee and Rogers Communications Canada Inc., a corporation organized
under the laws of Canada (“RCCI”), as Guarantor, (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, RCCI, 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.
Payment of the principal of (and premium, if any) and interest on this Note will be made in United States dollars.
The Company will pay to the Holders such Additional Amounts as may become payable under Section 907 of the Base Indenture.
On or before each Interest Payment Date, the Company shall deliver or cause to be delivered to the Trustee or the Paying Agent an amount in U.S. dollars sufficient to pay the amount due on such payment date.
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To guarantee the due and punctual payment of the principal and interest on the Notes and all other amounts payable by the Company under the Indenture and the Notes when and as the same shall be due and payable, whether
at maturity, by acceleration or otherwise, according to the terms of the Notes and the Indenture, RCCI has fully and unconditionally guaranteed the Guaranteed Obligations on an unsecured, unsubordinated basis pursuant to the terms of the Indenture.
RCCI will pay to the Holders such Additional Amounts as may become payable under Section 704 of the Supplemental Indenture.
The Notes will be subject to redemption upon not less than 10 nor more than 60 days’ prior notice at any time and from time to time, as a whole or in part, in amounts of U.S.$2,000 or an integral multiple of U.S.$1,000
in excess thereof, at the option of the Company: (i) prior to the Par Call Date, at a Redemption Price (expressed as a percentage of principal amount and rounded to three decimal places) equal to the greater of: (1) 100% of the principal amount of
the Notes to be redeemed, and (2) (a) the sum of the present values of the remaining scheduled payments of principal and interest thereon discounted to the Redemption Date (assuming the Notes to be redeemed are scheduled to mature on the Par Call
Date) on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus the Applicable Basis Points less (b) accrued and unpaid interest on the Notes to be redeemed to the Redemption Date, plus, in either
case, accrued and unpaid interest thereon to the Redemption Date, and (ii) commencing on the Par Call Date, at a Redemption Price equal to 100% of the principal amount of the Notes to be redeemed plus accrued and unpaid interest thereon to the
applicable Redemption Date.
“Treasury Rate” means, with respect to any Redemption Date, the yield determined by the Company in accordance with the following two paragraphs:
The Treasury Rate shall be determined by the Company after 4:15 p.m., New York City time (or after such time as yields on U.S. government securities are posted daily by the Board of Governors of the
Federal Reserve System), on the third Business Day preceding the Redemption Date based upon the yield or yields for the most recent day that appear after such time on such day in the most recent statistical release published by the Board of
Governors of the Federal Reserve System designated as “Selected Interest Rates (Daily) - H.15” (or any successor designation or publication) (“H.15”) under the caption “U.S. government securities–Treasury constant maturities–Nominal” (or any
successor caption or heading) (“H.15 TCM”). In determining the Treasury Rate, the Company shall select, as applicable: (1) the yield for the Treasury constant maturity on H.15 exactly equal to the period from the Redemption Date to the Par Call
Date (the “Remaining Life”); or (2) if there is no such Treasury constant maturity on H.15 exactly equal to such Remaining Life, the two yields – one yield corresponding to the Treasury constant maturity on H.15 immediately shorter than and one
yield corresponding to the Treasury constant maturity on H.15 immediately longer than such Remaining Life – and shall interpolate to the Par Call Date on a straight-line basis (using the actual number of days) using such yields and rounding the
result to three decimal places; or (3) if there is no such Treasury constant maturity on H.15 shorter than or longer than such Remaining Life, the yield for the single Treasury constant maturity on H.15 closest to such Remaining Life. For purposes
of this paragraph, the applicable Treasury constant maturity or maturities on H.15 shall be deemed to have a maturity date equal to the relevant number of months or years, as applicable, of such Treasury constant maturity from the Redemption Date.
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If on the third Business Day preceding the Redemption Date H.15 TCM is no longer published, the Company shall calculate the applicable Treasury Rate based on the rate per annum equal to the semi-annual
equivalent yield to maturity at 11:00 a.m., New York City time, on the second Business Day preceding such Redemption Date of the United States Treasury security maturing on, or with a maturity that is closest to, the Par Call Date, as applicable.
If there is no United States Treasury security maturing on the Par Call Date but there are two or more United States Treasury securities with a maturity date equally distant from the Par Call Date, one with a maturity date preceding the Par Call
Date and one with a maturity date following the Par Call Date, the Company shall select the United States Treasury security with a maturity date preceding the Par Call Date. If there are two or more United States Treasury securities maturing on the
Par Call Date or two or more United States Treasury securities meeting the criteria of the preceding sentence, the Company shall select from among these two or more United States Treasury securities the United States Treasury security that is
trading closest to par based upon the average of the bid and asked prices for such United States Treasury securities at 11:00 a.m., New York City time. In determining the Treasury Rate in accordance with the terms of this paragraph, the
semi-annual yield to maturity of the applicable United States Treasury security shall be based upon the average of the bid and asked prices (expressed as a percentage of principal amount) at 11:00 a.m., New York City time, of such United States
Treasury security, and rounded to three decimal places. The Company’s actions and determinations in determining the Redemption Price shall be conclusive and binding for all purposes, absent manifest error.
The Notes will also be subject to redemption as a whole, but not in part, at the option of the Company at any time and from time to time, on not less than 10 nor more than 60 days’ prior written notice, at 100% of the
principal amount plus accrued and unpaid interest thereon to the Redemption Date, in the event the Company or RCCI, as the case may be, has become or would become obligated to pay, on the next date on which any amount would be payable in respect of
the Notes or the Guarantee, as applicable, any Additional Amounts as a result of certain changes affecting Canadian withholding taxes on or after the Issue Date.
Any optional redemption of the Notes (and any related notice of redemption) (whether prior to, on or after the Par Call Date) may, at the Company’s discretion, be subject to one or more conditions
precedent, including completion of an equity or other securities offering, an incurrence of indebtedness or other financing, or any other transaction or event. If such redemption is subject to the satisfaction of one or more conditions precedent,
the related notice must 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 applicable date fixed for redemption. In addition, the Company may provide in such notice that payment of the Redemption Price and other amounts owing for the redemption of any Notes and performance of the Company’s
obligations with respect to such redemption may be performed by another Person.
In the case of any redemption of Notes, interest installments whose Stated Maturity is on or prior to the Redemption Date will be payable to the Holders of record of such Notes, or one or more Predecessor Securities,
at the close of business on the relevant Regular Record Date referred to on the face hereof. Notes (or portions thereof), for whose redemption
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and payment provision is made in accordance with the Indenture, shall cease to bear interest from and after the Redemption Date. In the event of redemption of this Note in part only, a replacement Note or Notes for the unredeemed portion hereof
shall be issued in the name of the Holder hereof upon the cancellation hereof.
If an Event of Default (other than an Event of Default resulting from a Change in Control Triggering Event which is cured in accordance with Section 404 of the Supplemental Indenture by the making and consummation of a
Change in Control Offer) shall occur and be continuing, the principal amount of all the Notes may be declared due and payable in the manner and with the effect provided in the Indenture.
In addition, it shall be an Event of Default under the Indenture if a Change in Control Triggering Event occurs on or prior to the Maturity of the Notes (subject to the aforesaid cure provisions). Following such an
Event of Default the principal amount of all the Notes may be declared due and payable in the manner and with the effect provided in the Indenture unless the Company (or a third party) offers, within 20 Business Days after the occurrence of such
Event of Default, to purchase the Notes and purchases the Notes for the Change in Control Purchase Price in cash on the date that is 40 Business Days after the occurrence of the Change in Control Triggering Event from a Holder who delivers and does
not withdraw a Change in Control Purchase Notice. Holders have the right to withdraw any Change in Control Purchase Notice by delivering to the Paying Agent a written notice of withdrawal in accordance with the terms and provisions of the
Indenture.
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 not less than a majority in aggregate principal amount of the Notes at the time Outstanding. The Indenture also contains provisions permitting the Holders of specified percentages in
aggregate principal amount of the Notes at the time Outstanding, on behalf of the Holders of all the Notes, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by or on behalf of the Holder of this Note shall be conclusive and binding upon such Holder and upon all future Holders of this Note and of any Note issued upon the registration of transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of (and premium, if
any) and interest on this Note at the times, place and rate, and in the coin or currency, herein prescribed.
The Notes are issuable only in registered form without coupons in denominations of U.S.$2,000 or any integral multiples of U.S.$1,000 in excess 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
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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.
As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Note is registrable on the Security Register, upon surrender of this Note for registration of transfer at the
Corporate Trust Office of the Trustee or any other office or agency of the Company designated pursuant to the Indenture duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Security
Registrar duly executed by, the Holder hereof or its attorney duly authorized in writing, and thereupon one or more replacement Notes of any authorized denomination or denominations, of a like aggregate principal amount and containing identical
terms and provisions, will be issued to the designated transferee or transferees.
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
The Bank of New York Mellon, as Trustee, certifies that this is one of the Notes referred to in the within-mentioned Indenture.
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THE BANK OF NEW YORK MELLON,
as Trustee
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By:
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| Name: | ||||
| Title: | ||||
SECTION 204 ASSIGNMENT FORM; CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION OF TRANSFER RESTRICTED NOTES
The following forms are to be attached to Notes that are Global Securities:
ASSIGNMENT FORM
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To assign this Note, fill in the form below:
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(I) or (we) assign and transfer this Note to
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(Insert assignee’s legal name)
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(Insert assignee’s soc. sec. or tax I.D. no.)
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(Print or type assignee’s name, address and zip code)
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| and irrevocably appoint to transfer this Note on the books of the Company. The agent may substitute another to act for him or her. |
Date: _____________________________________________
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Your Signature:
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(Sign exactly as your name appears on the face of this Note)
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Signature Guarantee1:
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Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).
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SECTION 205 SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY .
The following schedule is to be attached to Notes that are Global Securities:
5.30% SENIOR NOTES DUE 2034
| Initial Principal Amount: U.S.$ | CUSIP 775109 DF5/ ISIN US775109DF56 |
Authorization: ______________________
The following increases or decreases in this Note have been made:
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Date
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Amount of decrease in Principal Amount of this Global Security
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Amount of increase in Principal Amount of this Global Security
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Principal Amount of this Global Security following such decrease or increase
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Signature of Trustee or Security Registrar
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ARTICLE THREE
THE NOTES
SECTION 301 TITLE AND TERMS.
The Notes shall be known and designated as the “5.30% Senior Notes due 2034” of the Company. The entire unpaid principal amount of each Note shall become due and payable to the Holder thereof on February 15, 2034 (the
“Maturity Date”). Interest shall accrue on the aggregate unpaid principal amount of each Note at a rate of interest equal to 5.30% per annum from February 9, 2024 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. If an Interest Payment Date falls on a day that is not a Business Day, then payment will be made on the next succeeding Business Day without any additional interest accruing between the
Interest Payment Date and the day payment is actually made. The Regular Record Date for the interest payable on any Interest Payment Date shall be the February 1 or August 1 (whether or not a Business Day), as the case may be, immediately preceding
such Interest Payment Date. To the extent lawful, interest shall accrue on any overdue interest at the rate borne by the Notes from the date of the Interest Payment Date on which such overdue interest becomes payable to the date payment of such
interest has been made or duly provided for and such Default Interest shall be payable at the times and on the terms provided for in the Indenture.
An unlimited aggregate principal amount of the Notes may be authenticated and delivered under this Supplemental Indenture (of which U.S.$1,250,000,000 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
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204, 205, 206, 207, 208, 806, 1008 or 1009 of the Indenture and Section 404 hereof. 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 at the time outstanding, except for their date of issue, issue price and, if applicable, the first Interest Payment Date; provided that, if any such Additional Notes are not fungible
with the Notes for U.S. federal income tax purposes, such Additional Notes will have a separate CUSIP, ISIN or other identifying number. All Initial Notes and Additional Notes shall be treated as a single class for all purposes of the Indenture,
including waivers, amendments, redemptions and offers to purchase.
The Notes shall be unsecured, unsubordinated obligations of the Company ranking pari passu with any other present or future unsecured, unsubordinated obligations of the
Company.
The Notes shall be denominated in, and all principal of, and interest and premium (if any) on, the Notes shall be payable in U.S. dollars. Any payment of Additional Amounts hereunder shall also be payable in U.S.
dollars.
The Notes may be redeemed at the option of the Company at the prices, at the times and on such other terms and conditions as are specified in the form of the Note in Article Two hereof. The Company shall not be
otherwise obligated to redeem, purchase or repay the Notes pursuant to any sinking fund or analogous provisions or at the option of a Holder of the Notes except as provided in Article Six hereof.
The Notes shall be subject to the covenants (and the related definitions) set forth in Articles Seven and Nine of the Indenture and, except as otherwise provided herein, to any other covenant in the Indenture, and to
the defeasance and discharge provisions set forth in Article Three thereof and Section 304 herein.
Certain obligations of the Company under the Notes shall be fully and unconditionally guaranteed by RCCI to the extent set forth in Article Seven hereof.
SECTION 302 DENOMINATIONS.
The Notes shall be issuable only in fully registered form without coupons and in denominations of U.S.$2,000 or integral multiples of U.S.$1,000 in excess thereof.
SECTION 303 NOTES TO BE SECURED IN CERTAIN EVENTS.
If, upon any consolidation or amalgamation of the Company or RCCI, as applicable, with or merger of the Company or RCCI, as applicable, into any other Person, or upon any conveyance, transfer, lease or disposition of
the properties and assets of the Company or RCCI, as applicable, substantially as an entirety to any Person by liquidation, winding−up or otherwise (in one transaction or a series of related transactions), in each case in accordance with Section
701 of the Indenture, in the case of the Company, or Section 703 of this Supplemental Indenture, in the case of RCCI, any property or asset of the Company or of any Subsidiary,
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would thereupon become subject to any Lien, then, unless such Lien could be created pursuant to Section 502 without equally and ratably securing the Notes, the Company or RCCI, as applicable, prior to or simultaneously with such consolidation,
amalgamation, merger, conveyance, transfer, lease or disposition, will, as to such property or asset, secure the Notes Outstanding hereunder (together with, if the Company or RCCI shall so determine, any other Debt of the Company or RCCI now
existing or hereafter created which is not subordinate to the Notes) equally and ratably with (or prior to) the Debt which upon such consolidation, amalgamation, merger, conveyance, transfer, lease or disposition is to become secured as to such
property or asset by such Lien, or will cause such Notes to be so secured.
SECTION 304 DISCHARGE
Subject to the last paragraph of this Section 304, the Company and RCCI shall be discharged from its obligations with respect to, and this Supplemental Indenture will be discharged and will cease to be
of further effect as to, all Outstanding Notes, and the Trustee shall, at the request and at the expense of the Company, execute and deliver to the Company and RCCI such deeds or other instruments as shall be required to evidence such satisfaction
and discharge, when either:
(a) all Outstanding Notes (except, for the avoidance of doubt, any lost, stolen or destroyed Notes which have been replaced or paid as
provided in Section 208 of the Indenture and Notes for whose payment money has been deposited in trust or segregated and held in trust by the Company or RCCI and thereafter repaid to the Company or RCCI, as applicable, or discharged from such
trust), have been delivered to the Trustee for cancellation (including on conversion or exchange of the Notes into other securities or property), or
(b) all Notes not so delivered to the Trustee for cancellation (i) have otherwise become due and payable or have been called for redemption
pursuant to this Supplemental Indenture, (ii) will become due and payable within one year or (iii) if redeemable at the Company’s option pursuant to this Supplemental Indenture, 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 or RCCI has irrevocably deposited or caused to be deposited with the Trustee funds
in trust solely for the benefit of the Holders, cash, in United States dollars, 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 Notes and accrued interest thereon to the Stated Maturity or Redemption Date, as the
case may be, and
(c) in either case of the foregoing clause (a) or (b), the Company or RCCI has paid or caused to be paid all sums then payable by it under
this Supplemental Indenture with respect to the Notes.
(d) Notwithstanding the foregoing, and notwithstanding the satisfaction and discharge of this Supplemental Indenture with respect to Notes,
(A) the rights of Holders of the Notes to receive solely from the fund held in trust described in subsection (b) of this Section 304
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and as more fully set forth in such Section, payments in respect of the principal of (and premium, if any) and interest on the Notes when such payments are due, (B) the Company’s obligations with respect to
the Notes under Section 205, Section 206, Section 208, Section 902, Section 903 and Section 908, each of the Indenture, (C) the rights, powers, trusts, duties and immunities of the Trustee hereunder and the Company’s and RCCI’s obligations in
connection therewith, including the Company’s obligations under Section 507 of the Indenture and (D) this Article Three shall survive until the Notes 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 RCCI, as applicable (or discharged from such trust, as applicable) in accordance with the last paragraph of Section 903 of the Indenture. Thereafter, only the Company’s obligations in Section 507 of the
Indenture shall survive.
SECTION 305 TRANSFER AND EXCHANGE OF DEFINITIVE NOTES FOR DEFINITIVE NOTES.
When Notes in the form of a Definitive Note are presented to the Security Registrar with a request:
(a) to register the transfer of such Definitive Notes; or
(b) to exchange such Definitive Notes for an equal principal amount of Definitive Notes of other authorized denominations,
the Security Registrar shall register the transfer or make the exchange as requested if its reasonable requirements for such transaction are met; provided, however, that the Definitive Notes surrendered for transfer or exchange shall be duly endorsed or accompanied by a written instrument of transfer in form reasonably satisfactory to the Company and the Security
Registrar, duly executed by the Holder thereof or his attorney duly authorized in writing.
SECTION 306 TRANSFER OF A DEFINITIVE NOTE FOR A BENEFICIAL INTEREST IN A GLOBAL NOTE.
A Holder of a Definitive Note may exchange such Note for a beneficial interest in a Global Note or transfer such Definitive Notes to a Person who takes delivery thereof in the form of a beneficial interest in a Global
Note at any time. Upon receipt of a request for such an exchange or transfer, the Trustee will cancel the applicable Definitive Note and increase or cause to be increased the aggregate principal amount of one of the Global Notes for the applicable
Series. If no Global Notes are then outstanding, the Company may issue and the Trustee shall authenticate, upon receipt of a Company Order of the Company in the form of an Officer’s Certificate, a new applicable Global Note in the appropriate
principal amount.
SECTION 307 TRANSFER AND EXCHANGE OF GLOBAL NOTES.
(a) The transfer and exchange of Global Notes or beneficial interests therein shall be effected through the Depositary, in accordance with the
Indenture (including applicable restrictions on transfer, if any) and the procedures of the Depositary therefor. A transferor of a beneficial interest in a Global Note shall deliver to the Security Registrar a written order given in accordance
with the Depositary’s procedures containing information regarding the participant
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account of such Depositary to be credited with a beneficial interest in such Global Note or another Global Note, and such account shall be credited in accordance with such order with a beneficial interest in
the applicable Global Note, and the account of the Person making the transfer shall be debited by an amount equal to the beneficial interest in the Global Note being transferred.
(b) If the proposed transfer is a transfer of a beneficial interest in one Global Note to a beneficial interest in another Global Note, the
Security Registrar shall reflect on its books and records the date and an increase in the principal amount of the Global Note to which such interest is being transferred in an amount equal to the principal amount of the interest to be so
transferred, and the Security Registrar shall reflect on its books and records the date and a corresponding decrease in the principal amount of the Global Note from which such interest is being transferred. .
(c) Notwithstanding any other provisions of this Supplemental Indenture (other than Section 304), a Global Note may not be transferred except
as a whole and not in part by the Depositary to a nominee of such Depositary or by a nominee of the Depositary to such Depositary or another nominee of such Depositary or by the Depositary or any such nominee to a successor of such Depositary or
a nominee of such successor Depositary.
SECTION 308 CANCELLATION OR ADJUSTMENT OF GLOBAL NOTE.
At such time as all beneficial interests in a Global Note have either been exchanged for Definitive Notes, transferred, redeemed, repurchased or canceled, such Global Note shall be returned by the Depositary to the
Trustee for cancellation or retained and canceled by the Trustee. At any time prior to such cancellation, if any beneficial interest in a Global Note is exchanged for Definitive Notes, transferred in exchange for an interest in another Global
Note, redeemed, repurchased or canceled, the principal amount of Notes represented by such Global Note shall be reduced and an adjustment shall be made on the books and records of the Trustee (if it is then the Custodian for such Global Note) with
respect to such Global Note, by the Trustee or Custodian, to reflect such reduction.
SECTION 309 OBLIGATIONS WITH RESPECT TO TRANSFERS AND EXCHANGES OF NOTES.
(a) To permit registrations of transfers and exchanges, the Company shall execute and the Trustee, upon receipt of a Company Order, shall
authenticate, Definitive Notes and Global Notes at the Security Registrar’s request.
(b) No service charge shall be made for any registration of transfer or exchange (except as otherwise expressly permitted in the Indenture),
but the Company may require payment of a sum sufficient to cover any transfer tax, assessments, or similar governmental charge payable in connection therewith (other than any such transfer taxes, assessments or similar governmental charge payable
upon transfers or exchanges pursuant to Sections 205 and 1008 of the Indenture).
(c) Prior to the due presentation for registration of transfer of any Note, the Company, the Trustee, the Paying Agent or the Security
Registrar may deem and treat the person
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in whose name a Note is registered as the absolute owner of such Note for the purpose of receiving payment of principal of and interest on such Note and for all other purposes whatsoever, whether or not such
Note is overdue, and none of the Company, the Trustee, the Paying Agent or the Security Registrar shall be affected by notice to the contrary.
(d) All Notes issued upon any transfer or exchange pursuant to the terms of the Indenture shall evidence the same debt and shall be entitled
to the same benefits under the Indenture as the Notes surrendered upon such transfer or exchange.
(e) The Security Registrar and the Trustee may request such evidence as may be reasonably requested by them to determine the identity and
signatures of the transferor and the transferee.
SECTION 310 NO OBLIGATION OF THE TRUSTEE.
(a) The Trustee shall have no responsibility or obligation to any beneficial owner of a Global Note, a member of, or a participant in the
Depositary (“Agent Members”) or any other Person with respect to the accuracy of the records of the Depositary or their respective nominees or of any participant or member thereof, with respect to any ownership interest in the Notes or with
respect to the delivery to any participant, member, beneficial owner or other Person (other than the Depositary) of any notice (including any notice of redemption or repurchase) or the payment of any amount, under or with respect to such Notes.
All notices and communications to be given to the Holders and all payments to be made to Holders under the Notes shall be given or made only to the registered Holders (which shall be the Depositary or its nominee in the case of a Global Note).
The rights of beneficial owners in any Global Note shall be exercised only through the Depositary subject to the applicable rules and procedures of the Depositary. The Trustee may rely and shall be fully protected in relying upon information
furnished by the Depositary with respect to its members, participants and any beneficial owners.
(b) The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed
under the Indenture or under applicable law with respect to any transfer of any interest in any Note (including any transfers between or among Depositary participants, members or beneficial owners in any Global Note) other than to require
delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by, the terms of the Indenture, and to examine the same to determine substantial compliance as to form
with the express requirements hereof.
SECTION 311 NON-COMPLIANT TRANSFERS NULL AND VOID.
Any purported transfer of a Note, or any interest therein, to a purchaser or transferee that does not comply with the requirements specified in this Article Three shall be of no force and effect and shall be null and
void ab initio.
SECTION 312 DEFINITIVE NOTES.
(a) A Global Note deposited with the Depositary or Custodian pursuant to Section 201 may be transferred to the beneficial owners thereof in
the form of Definitive Notes
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in an aggregate principal amount equal to the principal amount of such Global Note, in exchange for such Global Note, only if such transfer complies with this Article Three and (1) the Depositary notifies the
Company that it is unwilling or unable to continue as a Depositary for such Global Note or if at any time the Depositary ceases to be a “clearing agency” registered under the Exchange Act or otherwise ceases to be eligible as a depositary and, in
each case, a successor depositary is not appointed by the Company within 90 days of such notice or after the Company becomes aware of such cessation, or (2) an Event of Default has occurred and is continuing (and, in the case of an Event of
Default arising upon a Change in Control Triggering Event, such Event of Default shall not have been cured by a Change of Control Offer in the prescribed time) and the Security Registrar has received a request from the Depositary or (3) the
Company, in its sole discretion and subject to the procedures of the Depositary, notifies the Trustee in writing that it elects to cause the issuance of Definitive Notes under the Indenture. In addition, any Affiliate of the Company that is a
beneficial owner of all or part of a Global Note may have such Affiliate’s beneficial interest transferred to such Affiliate in the form of a Definitive Note, by providing a written request to the Company and the Trustee and such Opinions of
Counsel, certificates or other information as may be required by the Indenture or the Company or the Trustee.
(b) Any Global Note that is transferable to the beneficial owners thereof pursuant to this Section 312 shall be surrendered by the Depositary
to the Trustee, to be so transferred, in whole or from time to time in part, without charge, and the Trustee shall authenticate and deliver, upon such transfer of each portion of such Global Note, an equal aggregate principal amount of Definitive
Notes of authorized denominations. Any portion of a Global Note transferred pursuant to this Section 312 shall be executed, authenticated and delivered only in denominations of U.S.$2,000 or any integral multiples of U.S.$1,000 in excess
thereof, registered in such names as the Depositary shall direct.
(c) The registered Holder of a Global Note may grant proxies and otherwise authorize any Person, including Agent Members and Persons that may
hold interests through Agent Members, to take any action which a Holder is entitled to take under the Indenture or the Notes.
(d) In the event of the occurrence of any of the events specified in paragraph (a)(1), (2) or (3) of this Section 312, the Company shall
promptly make available to the Trustee a reasonable supply of Definitive Notes in fully registered form without interest coupons.
ARTICLE FOUR
REMEDIES UPON CHANGE IN CONTROL
SECTION 401 ADDITIONAL EVENT OF DEFAULT.
In addition to the Events of Default set forth in Section 401 of the Indenture, “Event of Default”, wherever used herein and in the Indenture with respect to the Notes, includes the occurrence of a Change in Control
Triggering Event (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any
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administrative or governmental body), subject to any cure thereof as provided in Section 404 below.
Under this Supplemental Indenture, a “Change in Control Triggering Event” is deemed to occur upon both a Change in Control and a Rating Decline with respect to the Notes. The Trustee shall have no obligation or duty to
monitor, determine or inquire as to whether a Rating Decline with respect to the Notes has occurred.
A “Change in Control” means (i) any transaction (including an amalgamation, merger or consolidation or the sale of Capital Stock of the Company) the result of which is that any Person or group of Persons (as the term
“group” is used in Rule 13d−5 of the Exchange Act), other than Members of the Rogers Family or a Person or group of Persons consisting of or controlled, directly or indirectly, by one or more Members of the Rogers Family, acquires, directly or
indirectly, more than 50% of the total voting power of all classes of Voting Shares of the Company or (ii) any transaction (including an amalgamation, merger or consolidation or the sale of Capital Stock of the Company) the result of which is that
any Person or group of Persons, other than (A) Members of the Rogers Family or a Person or group of Persons consisting of or controlled, directly or indirectly, by one or more Members of the Rogers Family or (B) for so long as the only primary
beneficiaries of a Qualifying Trust established under the last will and testament of Edward S. Rogers are one or more persons referred to in clause (i) of the definition of “Member of the Rogers Family” or the Spouse, for the time being and from
time to time, of the issue (including individuals adopted by such Persons, provided that such adopted individuals have not attained the age of majority at the date of such adoption, together with the issue of any such adopted individuals) of any
person described in subclause (i)(b) or (c) of the definition of “Member of the Rogers Family”, any Person designated by the trustees of such Qualifying Trust to exercise voting rights attaching to any shares held by such trustees, has elected to
the Board of Directors such number of its or their nominees so that such nominees so elected shall constitute a majority of the number of the directors comprising the Board of Directors; provided that to the extent that one or more regulatory
approvals are required for any of the transactions or circumstances described in clause (i) or (ii) above to become effective under applicable law, such transactions or circumstances shall be deemed to have occurred at the time such approvals have
been obtained and become effective under applicable law.
“Member of the Rogers Family” means (i) such of the following persons as are living at the date of this Supplemental Indenture or are born after the date of this Supplemental Indenture and before the Perpetuity Date:
(a) the widow, if any, of Edward S. Rogers (who was born on May 27, 1933, such individual being hereinafter referred to as “Edward S. Rogers”); (b) the issue of Edward S. Rogers; (c) Ann Taylor Graham Calderisi, the half−sister of Edward S. Rogers,
and the issue of Ann Taylor Graham Calderisi; (d) individuals adopted by Edward S. Rogers or any of the persons described in subclauses (a) or (b) of this clause (i) provided that such adopted individuals have not attained the age of majority at
the date of such adoption, together with the issue of any such adopted individuals; provided that if any person is born out of wedlock he shall be deemed not to be the issue of another person for the purposes hereof unless and until he is proven or
acknowledged to be the issue of such person and; (ii) the trustees of any Qualifying Trust, but only to the extent of such Qualifying Trust’s Family Percentage Holding of voting securities or rights to control or direct the voting securities of the
Company at the time of the determination.
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“Family Percentage Holding” means the aggregate percentage of the securities held by a Qualifying Trust representing, directly or indirectly, an interest in voting securities or rights to control or direct the voting
securities of the Company, that it is reasonable, under all the circumstances, to regard as being held beneficially for Qualified Persons (or any class consisting of two or more Qualified Persons); provided always that in calculating the Family
Percentage Holding (A) in respect of any power of appointment or discretionary trust capable of being exercised in favor of any of the Qualified Persons such trust or power shall be deemed to have been exercised in favor of Qualified Persons until
such trust or power has been otherwise exercised; (B) where any beneficiary of a Qualifying Trust has assigned, transferred or conveyed, in any manner whatsoever, his or her beneficial interest to another person, then, for the purpose of
determining the Family Percentage Holding in respect of such Qualifying Trust, the person to whom such interest has been assigned, transferred or conveyed shall be regarded as the only person beneficially interested in the Qualifying Trust in
respect of such interest but in the case where the interest is so assigned, transferred or conveyed is an interest in a discretionary trust or is an interest which may arise as a result of the exercise in favor of the assignor of a discretionary
power of appointment and such discretionary trust or power of appointment is also capable of being exercised in favor of persons described in clause (i) of the definition of “Member of the Rogers Family”, such discretionary trust or power shall be
deemed to have been so exercised in favor of Qualified Persons until it has in fact been exercised; and (C) the interest of any Permitted Residuary Beneficiary shall be ignored until its interest has indefeasibly vested.
“Permitted Residuary Beneficiary” means any person who is a beneficiary of a Qualifying Trust and, under the terms of the Qualifying Trust, is entitled to distributions out of the capital of such Qualifying Trust only
after the death of all of the Qualified Persons who are beneficiaries of such Qualifying Trust.
“Perpetuity Date” means the date that is 21 years, less one day, from the date of the death of the last survivor of the individuals described in subclause (i)(a), (b), (c) or (d) of the definition of “Member of the
Rogers Family”, who are living at the date of this Supplemental Indenture.
“Qualifying Trust” means a trust (whether testamentary or inter vivos) any beneficiary of which is a person referred to in clause (i) of the definition of “Member of the Rogers Family” or the Spouse, for the time being
and from time to time, of the issue (including individuals adopted by such Persons, provided that such adopted individuals have not attained the age of majority at the date of such adoption, together with the issue of any such adopted individuals)
of any person described in subclause (i)(b) or (c) of the definition of “Member of the Rogers Family”, provided that such Spouse is living at the date of this Supplemental Indenture or is born after the date of this Supplemental Indenture and
before the Perpetuity Date (all such persons being hereafter referred to as “Qualified Persons”).
“Spouse” means, in relation to any person, a person who is legally married to that person and includes a widow or widower of that person, notwithstanding remarriage.
SECTION 402 ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
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If a Change in Control Triggering Event occurs and is continuing and the Company (or a third party) fails in any material respect to comply with any of the provisions of Section 404 hereof, then and in every such case
the Trustee or the Holders of not less than 25% in aggregate principal amount of the Notes then Outstanding may declare the principal of all such Notes to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if
given by Holders), and upon any such declaration such principal shall become immediately due and payable.
SECTION 403 RESERVED.
SECTION 404 CHANGE IN CONTROL OFFER.
(a) The Notes may not be accelerated pursuant to Section 402 hereof following an Event of Default arising from a Change in Control Triggering
Event and such Event of Default shall be cured if the Company complies in all material respects with the provisions of this Section 404. If the Company elects to cure such Event of Default, within 20 Business Days of the occurrence of an Event of
Default arising from a Change in Control Triggering Event, (i) the Company shall notify the Trustee in writing of the occurrence of the Change in Control Triggering Event and shall make an offer to purchase (the “Change in Control Offer”) all
outstanding Notes properly tendered at a purchase price equal to 101% of the principal amount thereof plus any accrued and unpaid interest thereon to the Change in Control Purchase Date (as hereinafter defined) (the “Change in Control Purchase
Price”) on the date that is 40 Business Days after the occurrence of the Change in Control Triggering Event (the “Change in Control Purchase Date”), (ii) the Trustee shall deliver a copy of the Change in Control Offer to each Holder and (iii) the
Company shall cause a notice of the Change in Control Offer to be sent at least once to the Dow Jones News Service or similar business news service in the United States and CNW Group Ltd. (Canada News Wire or Cision Canada) or a similar news
service in Canada. The Change in Control Offer shall remain open from the time such offer is made until the Change in Control Purchase Date. The Trustee shall be under no obligation to ascertain the occurrence of a Change in Control Triggering
Event or to give notice with respect thereto other than as provided above upon receipt of a Change in Control Offer from the Company. The Trustee may conclusively assume, in the absence of receipt of a Change in Control Offer from the Company,
that no Change in Control Triggering Event has occurred. The Change in Control Offer shall include a form of Change in Control Purchase Notice to be completed by the Holder and shall state:
(i) the events causing a Change in Control Triggering Event and the date such Change in Control Triggering Event is deemed
to have occurred;
(ii) that the Change in Control Offer is being made pursuant to this Section 404 and that all Notes properly tendered
pursuant to the Change in Control Offer will be accepted for payment;
(iii) the date by which the Change in Control Purchase Notice pursuant to this Section 404 must be given;
(iv) the Change in Control Purchase Date;
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(v) the Change in Control Purchase Price;
(vi) the names and addresses of the Paying Agent and the offices or agencies referred to in Section 902 of the Indenture;
(vii) that Notes must be surrendered to the Paying Agent at the office of the Paying Agent or to an office or agency
referred to in Section 902 of the Indenture to collect payment;
(viii) that the Change in Control Purchase Price for any Note as to which a Change in Control Purchase Notice has been duly
given and not withdrawn will be paid promptly upon the later of the first Business Day following the Change in Control Purchase Date and the time of surrender of such Note as described in clause (vii) above;
(ix) the procedures the Holder must follow to accept the Change in Control Offer; and
(x) the procedures for withdrawing a Change in Control Purchase Notice.
(b) A Holder may accept a Change in Control Offer by delivering to the Paying Agent at the office of the Paying Agent or to an office or
agency referred to in Section 902 of the Indenture a written notice (a “Change in Control Purchase Notice”) at any time prior to the close of business on the Change in Control Purchase Date, stating:
(i) that such Holder elects to have a Note purchased pursuant to the Change in Control Offer;
(ii) the principal amount of the Note that the Holder elects to have purchased by the Company, which amount must be
U.S.$1,000 or an integral multiple thereof, and the certificate numbers of the Notes to be delivered by such Holder for purchase by the Company; and
(iii) that such Note shall be purchased on the Change in Control Purchase Date pursuant to the terms and conditions
specified in this Supplemental Indenture.
The delivery of such Note (together with all necessary endorsements) to the Paying Agent at the office of the Paying Agent or to an office or agency referred to in Section 902 of the Indenture prior to, on or after the
Change in Control Purchase Date shall be a condition to the receipt by the Holder of the Change in Control Purchase Price therefor; provided that such Change in Control Purchase Price shall be so paid pursuant to this Section 404 only if the Note
so delivered to the Paying Agent or to an office or agency referred to in Section 902 of the Indenture shall conform in all respects to the description thereof set forth in the related Change in Control Purchase Notice.
The Company shall purchase from the Holder thereof, pursuant to this Section 404, a portion of a Note if the principal amount of such portion is U.S.$1,000 or an integral
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multiple of U.S.$1,000 in excess thereof. Provisions of the Indenture that apply to the purchase of all of a Note also apply to the purchase of a portion of such Note.
Any purchase by the Company contemplated pursuant to the provisions of this Section 404 shall be consummated by the delivery by the Company of the consideration to be received by the Holder promptly upon the later of
(a) the first Business Day following the Change in Control Purchase Date and (b) the time of delivery of the Note by the Holder to the Paying Agent or to an office or agency referred to in Section 902 of the Indenture in the manner required by this
Section 404.
Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent, at the office of the Paying Agent or an office or agency referred to in Section 902 of the Indenture, the Change in Control
Purchase Notice contemplated by this Section 404(b) shall have the right to withdraw such Change in Control Purchase Notice at any time prior to the close of business on the Change in Control Purchase Date by delivery of a written notice of
withdrawal to the Paying Agent or to an office or agency referred to in Section 902 of the Indenture in accordance with Section 601 hereof.
The Paying Agent or the office or agency referred to in Section 902 of the Indenture shall promptly notify the Company of the receipt by the former of any Change in Control Purchase Notice or written notice of
withdrawal thereof.
(c) The Notes may also not be accelerated pursuant to Section 402 hereof following an Event of Default arising from a Change in Control
Triggering Event and such Event of Default shall also be cured if a third party makes and consummates a Change in Control Offer in the manner and at the times and otherwise in compliance with this Section 404; provided, however, that any such
third party shall be subject to Section 907 of the Indenture in respect of any amounts paid by such third party hereunder (for this purpose, Section 907 of the Indenture is modified by replacing “Company” with the name of the third party) and
such Event of Default shall be cured only if such third party complies with Section 907 of the Indenture (as modified) or if the Company satisfies the third party’s obligations under such Section.
ARTICLE FIVE
ADDITIONAL COVENANTS
SECTION 501 RESTRICTED SUBSIDIARIES.
(a) The Board of Directors of the Company may designate any Restricted Subsidiary or any Person that is to become a Subsidiary as an
Unrestricted Subsidiary, or the Company or any Restricted Subsidiary may transfer any assets or properties to an Unrestricted Subsidiary, if (i) prior to and immediately after such designation, no Default or Event of Default shall have occurred
and be continuing and (ii) such Subsidiary or Person, together with all other Unrestricted Subsidiaries, shall not in the aggregate have Net Tangible Assets greater than 15% of the Company’s Consolidated Net Tangible Assets; provided, however,
that for the purposes of this Section 501, (1) the Company’s Consolidated Net Tangible Assets shall also include the aggregate Net Tangible Assets of such Subsidiary or Person and all other Unrestricted
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Subsidiaries and (2) Excluded Assets shall be excluded from the calculation of Net Tangible Assets and Consolidated Net Tangible Assets.
(b) The Board of Directors of the Company may not designate any Unrestricted Subsidiary as a Restricted Subsidiary unless immediately before
and after giving effect to such designation, no Default or Event of Default shall have occurred and be continuing.
(c) Nothing in this Section 501 shall restrict or limit the Company or any Restricted Subsidiary from transferring any asset that is an
Excluded Asset to any Unrestricted Subsidiary or any Person that is to become an Unrestricted Subsidiary.
SECTION 502 LIMITATION ON SECURED DEBT.
The Company will not, and will not permit any of its Restricted Subsidiaries to, create, assume, incur or guarantee any Secured Debt unless and for so long as the Company secures, or causes such Restricted Subsidiary
to secure, the Notes equally and ratably with (or prior to) such Secured Debt. However, any of the Company or its Restricted Subsidiaries may incur Secured Debt without securing the Notes if, immediately after incurring the Secured Debt, the
aggregate principal amount of all Secured Debt then outstanding plus the aggregate amount of the Attributable Debt then outstanding pursuant to Sale and Leaseback Transactions would not exceed 15% of the Company’s Consolidated Net Tangible Assets.
The aggregate amount of all Secured Debt in the preceding sentence excludes Secured Debt which is secured equally and ratably with the Notes and Secured Debt that is being repaid concurrently. Any Lien which is granted to secure the Notes under
this Section 502 shall be discharged at the same time as the discharge of the Lien securing the Secured Debt that gave rise to the obligation to secure the Notes under this Section 502.
SECTION 503 LIMITATION ON SALE AND LEASEBACK TRANSACTIONS.
The Company will not, and will not permit any Restricted Subsidiary to, enter into any Sale and Leaseback Transaction, unless either (a) immediately thereafter, the sum of (1) the Attributable Debt to be outstanding
pursuant to such Sale and Leaseback Transaction and all other Sale and Leaseback Transactions entered into by the Company or a Restricted Subsidiary on or after the Issue Date (or, in the case of a Restricted Subsidiary, the date on which it became
a Restricted Subsidiary, if on or after the Issue Date) and (2) the aggregate amount of all Secured Debt, excluding Secured Debt which is secured equally and ratably with the Notes, would not exceed 15% of the Company’s Consolidated Net Tangible
Assets or (b) an amount, equal to the greater of the net proceeds to the Company or a Restricted Subsidiary from such sale and the Attributable Debt to be outstanding pursuant to such Sale and Leaseback Transaction, is used within 180 days to
retire Debt of the Company or a Restricted Subsidiary. However, Debt which is subordinate to the Notes or which is owed to the Company or a Restricted Subsidiary may not be retired in satisfaction of clause (b) above.
SECTION 504 LIMITATION ON RESTRICTED SUBSIDIARY DEBT.
The Company will not permit any Restricted Subsidiary to, directly or indirectly, create, incur, assume or suffer to exist any Debt (other than Debt to the extent that the Notes are secured equally and ratably with (or
prior to) such Debt), unless:
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(1) the obligations of the Company under the Notes are guaranteed (which guarantee may be on an unsecured basis) by such Restricted Subsidiary such that the claim of the Holders of the Notes under such guarantee ranks
prior to or pari passu with such Debt; or
(2) after giving effect to the incurrence of such Debt and the application of the proceeds therefrom, the sum of (without duplication) (x) the then outstanding aggregate principal amount of Debt of all Restricted
Subsidiaries (other than Exempted Secured Debt, and for the avoidance of doubt, any Debt permitted by clause (1) of this Section 504), (y) the then outstanding aggregate principal amount of Secured Debt of the Company (not on a Consolidated basis)
and (z) Attributable Debt relating to then outstanding Sale and Leaseback Transactions, would not exceed 15% of Consolidated Net Tangible Assets; provided, however, that this restriction will not apply to, and there will be excluded from any
calculation hereunder, (A) Debt owing by a Restricted Subsidiary to the Company or to another Restricted Subsidiary and (B) Debt secured by Permitted Liens; provided, further, that this restriction will not prohibit the incurrence of Debt in
connection with any extension, renewal or replacement (including successive extensions, renewals or replacements), in whole or in part, of any Debt of the Restricted Subsidiaries (provided that the principal amount of such Debt immediately prior to
such extension, renewal or replacement is not increased).
SECTION 505 WAIVER OF CERTAIN COVENANTS.
Pursuant to Section 910 of the Indenture, the Company may omit in any particular instance to comply with any covenant or condition in Section 905 or 906 thereof and any covenant or condition in Section 501, 502, 503 or
504 of this Supplemental Indenture if, before or after the time for such compliance, the Holders of the Notes at the time Outstanding shall, by Holder Direction, waive such compliance in such instance with such covenant or condition, but no such
waiver shall extend to or affect such covenant or condition except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Company and the duties of the Trustee in respect of any such covenant or
condition shall remain in full force and effect.
ARTICLE SIX
CHANGE IN CONTROL PROVISIONS
SECTION 601 EFFECT OF CHANGE IN CONTROL PURCHASE NOTICE.
Upon receipt by the Company of the Change in Control Purchase Notice specified in Section 404(b) hereof, the Holder of the Note in respect of which such Change in Control Purchase Notice was given shall (unless such
Change in Control Purchase Notice is withdrawn as specified in the following two paragraphs of this Section) thereafter be entitled to receive solely the Change in Control Purchase Price with respect to such Note. Such Change in Control Purchase
Price shall be paid to such Holder upon the later of (a) the first Business Day following the Change in Control Purchase Date (provided the conditions in Section 404(b) hereof have been satisfied) and (b) the time of delivery of the Note to the
Paying Agent at the office of the Paying Agent or to the office or agency referred to in Section 902 of the Indenture by the Holder thereof in the manner required by Section 404(b) hereof.
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A Change in Control Purchase Notice may be withdrawn before or after delivery by the Holder to the Paying Agent at the office of the Paying Agent of the Note to which such Change in Control Purchase Notice relates, by
means of a written notice of withdrawal delivered by the Holder to the Paying Agent at the office of the Paying Agent or to the office or agency referred to in Section 902 of the Indenture to which the related Change in Control Purchase Notice was
delivered at any time prior to the close of business on the Change in Control Purchase Date specifying, as applicable:
(a) the certificate number of the Note in respect of which such notice of withdrawal is being submitted,
(b) the principal amount of the Note (which shall be U.S.$1,000 or an integral multiple thereof) with respect to which such notice of
withdrawal is being submitted, and
(c) the principal amount, if any, of such Note (which shall be U.S.$1,000 or an integral multiple thereof) that remains subject to the
original Change in Control Purchase Notice and that has been or will be delivered for purchase by the Company.
The Paying Agent will promptly return to the respective Holders thereof any Notes with respect to which a Change in Control Purchase Notice has been withdrawn in compliance with this Supplemental Indenture.
SECTION 602 DEPOSIT OF CHANGE IN CONTROL PURCHASE PRICE.
No later than 11:00 a.m. (New York time) on the Business Day following the Change in Control Purchase Date the Company shall deposit or cause to be deposited with the Paying Agent (or, if the Company is acting as the
Paying Agent, shall segregate and hold in trust as provided in Section 903 of the Indenture) an amount of cash sufficient to pay the aggregate Change in Control Purchase Price of all the Notes or portions thereof that are to be purchased as of the
Change in Control Purchase Date.
SECTION 603 REPAYMENT TO THE COMPANY.
As provided in the Notes, the Trustee and the Paying Agent shall return to the Company any cash that remains unclaimed, together with interest and dividends, if any, thereon (subject to the provisions of Section 507 of
the Indenture), held by them for the payment of the Change in Control Purchase Price; provided, however, that, to the extent that the aggregate amount of cash deposited by the Company pursuant to Section 602 hereof exceeds the aggregate Change in
Control Purchase Price of the Notes or portions thereof to be purchased, then the Trustee shall hold such excess for the Company and promptly after the Business Day following the Change in Control Purchase Date the Trustee shall upon demand return
any such excess to the Company together with interest and dividends, if any, thereon (subject to the provisions of Section 507 of the Indenture).
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ARTICLE SEVEN
GUARANTEE
SECTION 701 GUARANTEE.
(a) RCCI hereby fully and unconditionally guarantees (the “Guarantee”) due payment and performance to the Trustee, for and on behalf of the
Holders, forthwith after demand, of all the obligations of the Company that arise under this Supplemental Indenture, the applicable provisions of the Indenture or under the Notes to pay the principal of (and premium, if any) and interest on the
Notes when due and payable at Maturity and any Additional Amounts, and all other amounts due or to become due under or in connection with this Supplemental Indenture, the Notes and the performance of all other obligations to the Trustee
(including all amounts due to the Trustee under Section 507 of the Indenture) and the Holders of the Notes which obligations arise under this Supplemental Indenture and the Notes, according to the terms hereof and thereof, including any
applicable grace periods (the “Guaranteed Obligations”). The Guarantee shall be an unsecured, unsubordinated obligation of RCCI ranking pari passu with other present and future unsecured, unsubordinated
obligations of RCCI. The Company hereby fully and unconditionally guarantees the Guarantee of RCCI.
(b) RCCI agrees that, without obtaining the consent of or giving notice to RCCI, the Trustee may vary this Supplemental Indenture or the
Indenture, as provided herein and therein, grant extensions of time or other indulgences, take and give up securities, grant releases and discharges and otherwise deal with the Company and other parties as the Trustee may see fit and may apply
all monies received from the Company or others or from securities upon such part of the Company’s liability as the Trustee may think best without prejudice to or in any way limiting or lessening the liability of RCCI under this Supplemental
Indenture. The Trustee expressly reserves all its rights under the Indenture, and any such variances shall not be deemed waivers of any rights or other provisions under the Indenture or this Supplemental Indenture.
(c) The Guarantee shall be a continuing guarantee of all the Guaranteed Obligations and shall apply to any ultimate balance due or remaining
unpaid to the Holders of the Notes. The Guarantee shall not be considered as wholly or partially satisfied by the payment or liquidation at any time of any sum of money which may at any time be or become owing or due or remain unpaid to the
Holders of the Notes.
(d) The Guarantee shall not be discharged or otherwise affected by any change in the name, objects, businesses, assets, capital structure or
constitution of the Company or RCCI, or by any merger or amalgamation of the Company or RCCI with any Person or Persons, except as otherwise provided in this Supplemental Indenture or the applicable provisions of the Indenture. In the case of the
Company being amalgamated with another corporation, the Guarantee shall apply to the liabilities of the resulting corporation, and the term “Company” shall include each such resulting corporation.
(e) All monies, advances, renewals and credits in fact borrowed or obtained by the Company under this Supplemental Indenture shall be deemed
to form part of the liabilities
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hereby guaranteed notwithstanding any limitation of status or of power of the Company or of the directors or agents thereof or that the Company may not be a legal entity or any irregularity, defect or
informality in the borrowing or obtaining of such monies, advances, renewals or credits.
(f) The obligations of RCCI hereunder are and shall be absolute and unconditional and any moneys or amounts expressed to be owing or payable
by RCCI hereunder which may not be recoverable from RCCI on the basis of a guarantee or as surety shall be recoverable from RCCI as a primary obligor and principal debtor in respect thereof.
(g) The Trustee shall not be bound to exhaust its recourse against the Company or other parties before being entitled to demand payment from
or performance by RCCI and enforce its rights under this Supplemental Indenture.
(h) Any account settled or stated by or between the Trustee and the Company in relation to this Supplemental Indenture shall be accepted by
RCCI as conclusive evidence that the balance or amount thereby appearing due by the Company to the Trustee is so due.
(i) RCCI shall make payment to the Trustee of the amount of the liability of RCCI forthwith after demand therefor is made in writing during
the continuance of any Event of Default and such demand shall be conclusively deemed to have been effectually made when delivered in accordance with the notice provisions set forth herein and the liability of RCCI shall bear interest from the
date of such demand at the rate borne by the Notes, such interest to be calculated monthly based on the number of days elapsed and to be deemed payable on the first Business Day of a month in respect of the immediately preceding month or upon
demand, whichever is earlier.
(j) All amounts payable by RCCI under this Supplemental Indenture shall be paid without set−off or counterclaim and without any deduction or
withholding whatsoever unless and to the extent that RCCI shall be prohibited by law from doing so, in which case RCCI shall, only to the extent such a similar requirement is imposed on the Company pursuant to this Supplemental Indenture, pay to
the Trustee such additional amount as shall be necessary to ensure that the Trustee receives the full amount it would have received if no such deduction or withholding had been made.
(k) RCCI acknowledges that it has, by separate written instrument, irrevocably designated and appointed CT Corporation System (“CT
Corporation”) as its authorized agent upon which process may be served in any suit or proceeding arising out of or relating to the Notes, the Guarantee or this Supplemental Indenture that may be instituted in any federal or state court in the
State of New York or brought under federal or state securities laws. RCCI acknowledges that CT Corporation has accepted such designation, submits to the non−exclusive jurisdiction of any such court in any such suit or proceeding and acknowledges
further that service of process upon CT Corporation (or any successor) and written notice of said service to RCCI shall be deemed in every respect effective service of process upon RCCI in any such suit or proceeding. RCCI further agrees to take
any and all action, including the execution and filing of any and all such documents and instruments, as may be necessary to continue such designation and appointment of CT Corporation (or any successor) in full force and effect so
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long as any of the Notes shall be outstanding. In addition, to the extent that RCCI has or hereafter may acquire any immunity from jurisdiction of any court or from any legal process (whether through service of
notice, attachment prior to judgment, attachment in aid of execution, execution or otherwise) with respect to itself or its property, it hereby irrevocably waives such immunity in respect of its obligations under the above−referenced documents,
to the extent permitted by law.
SECTION 702 RELEASE OF GUARANTOR.
(a) In addition to the release provisions set forth in the Indenture, subject to Section 702(d), RCCI shall be released and relieved from all
of its obligations under this Article Seven, and RCCI’s Guarantee shall be terminated and be of no further force or effect, upon the request of the Company (without the consent of the Trustee) if, immediately after giving effect to such release
and termination (and, if applicable, any transaction in connection therewith, including any other concurrent release, termination, repayment or discharge of any other guarantee or other Debt of RCCI), the Company would be in compliance with
Section 504 hereof, including in the event of a sale or other transaction as a result of which RCCI would cease to be a Subsidiary.
(b) In order to effect the release and termination provided for in Section 702(a), the Company shall furnish to the Trustee an Officers’
Certificate stating that, immediately after giving effect to such release and termination (as well as any concurrent release, termination, repayment or discharge of any other guarantee or other Debt of RCCI), the Company will be in compliance
with Section 504 hereof. In the event that the release and termination is in connection with a sale or other transaction as a result of which RCCI would cease to be a Subsidiary, pro forma effect shall be given to such transaction (including the
application of any proceeds therefrom) in determining the Company’s compliance with Section 504 and, accordingly, the amount of Debt subject to the Guarantee of RCCI and any other Debt of RCCI shall be excluded from any calculation thereunder.
Notwithstanding any provision to the contrary in the Indenture or this Supplemental Indenture, no opinion, report or certificate, other than the Officers’ Certificate provided for in this Section 702(b), need be furnished to the Trustee for such
release and termination. After its receipt of the aforementioned Officers’ Certificate, the Trustee shall execute any documents reasonably requested by either the Company or RCCI in order to evidence the release of RCCI from its obligations under
the Guarantee under this Article Seven.
(c) No supplemental indenture, amendment or waiver shall, without the consent of the Holder of each Outstanding Note, release RCCI from any of
its obligations under Section 701, other than in accordance with the provisions of this Section 702 or the other release provisions set forth in the Indenture, or amend or modify the release provisions of this Section 702.
(d) Notwithstanding the release provisions of Section 702(a), RCCI shall not be released from its obligations under this Article Seven and the
Guarantee will not be terminated if, immediately after such release and termination (and, if applicable, after giving effect to any transaction to occur concurrently therewith), RCCI remains a co−obligor with or a guarantor for, as applicable,
the obligations of the Company under any Existing Note.
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(e) Notwithstanding the release provisions of this Section 702, any Person added as a Guarantor at the option of the Company pursuant to
Section 801(f) of the Indenture may be released at the option of the Company at any time upon such conditions as may be specified in the supplement to this Supplemental Indenture pursuant to which such added Guarantor provided its Guarantee. No
opinion, report or certificate, other than the Officers’ Certificate provided for in this Section 702(b), need be furnished to the Trustee for a release and termination pursuant to this Section 702(e). Nothing in this Section 702(e) shall modify
or amend the release provisions applicable to RCCI pursuant to clauses (a) through (e) of this Section 702.
SECTION 703 AMALGAMATION, CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE.
(a) Unless RCCI has been released, or in connection with such transaction will be released, from its obligations under the Guarantee in
accordance with the provisions of Section 702 hereof or any other release provision set forth in the Indenture, RCCI shall not amalgamate or consolidate with or merge with or into any other Person or convey, transfer, lease or otherwise dispose
of its properties and assets substantially as an entirety to any Person by liquidation, winding−up or otherwise (in one transaction or a series of related transactions) unless:
(i) immediately after giving effect to such transaction (and treating any Debt which becomes an obligation of RCCI or a
Subsidiary of RCCI in connection with or as a result of such transaction as having been incurred at the time of such transaction), no Default or Event of Default shall have occurred and be continuing;
(ii) either (x) RCCI shall be the continuing Person or (y) the Person (if other than RCCI) formed by such amalgamation or
consolidation or into which RCCI is merged or the Person which acquires by conveyance, transfer, lease or other disposition the properties and assets of RCCI substantially as an entirety (the “Successor Guarantor”) shall, unless the Successor
Guarantor is the Company, (A) be a corporation, company, partnership or trust organized and validly existing under the federal laws of Canada or any Province thereof or the laws of the United States of America or any State thereof or the District
of Columbia and (B) expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, all of the obligations of RCCI under the Guarantee (provided, however, that the Successor
Guarantor shall not be required to execute and deliver such a supplemental indenture in the event of an amalgamation of RCCI with one or more other Persons, in which the amalgamation is governed by the laws of Canada or any province thereof, the
Successor Guarantor and RCCI are, immediately prior to such amalgamation, organized and existing under the laws of Canada or any province thereof and upon the effectiveness of such amalgamation, the Successor Guarantor shall have become or shall
continue to be (as the case may be), by operation of law, liable for the observance of all obligations of RCCI under the Guarantee); and
(iii) RCCI, the Company or the Successor Guarantor, as applicable, shall have delivered to the Trustee an Officers’
Certificate and an Opinion of Counsel,
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each stating that such amalgamation, consolidation, merger, conveyance, transfer, lease or other disposition and, if a supplemental indenture is required in connection with such
transaction (or series of transactions), such supplemental indenture, comply with this Section 703(a) and that all conditions precedent herein provided for relating to such transaction have been satisfied.
(b) Upon any amalgamation, consolidation or merger, or any conveyance, transfer, lease or other disposition of the properties and assets of
RCCI substantially as an entirety in accordance with Section 703(a), the Successor Guarantor shall succeed to, and be substituted for, and may exercise every right and power of, RCCI under this Supplemental Indenture and the Indenture with the
same effect as if such Successor Guarantor had been named as a Guarantor herein; and thereafter, except in the case of a lease, RCCI shall be released and relieved from all of its obligations under this Article Seven, and RCCI’s Guarantee shall
be terminated and be of no further force or effect.
SECTION 704 PAYMENT OF ADDITIONAL AMOUNTS.
All payments made by RCCI under or with respect to the Notes or the Guarantee will be made free and clear of and without withholding or deduction for or on account of any present or future tax,
duty, levy, impost, assessment or other governmental charge imposed or levied by or on behalf of the Government of Canada or of any province or territory thereof or by any authority or agency therein or thereof having power to tax (hereinafter
“Taxes”), unless RCCI is required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant government authority or agency. If RCCI is so required to withhold or deduct any amount for or on account of
Taxes from any payment made under or with respect to the Notes, RCCI will pay as interest such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by each holder of such Notes in respect of a beneficial
owner (including Additional Amounts) after such withholding or deduction will not be less than the amount such holder would have received in respect of the beneficial owner if such Taxes had not been withheld or deducted; provided that no Additional Amounts will be payable with respect to a payment made to a holder of the Notes in respect of a beneficial owner (i) with which RCCI does not deal at arm’s length (within the meaning of the Income Tax Act (Canada) (the “Tax Act”)) at the time of making such payment or which is entitled to the payment in respect of a debt or other obligation to pay an amount to a person with which RCCI does not deal
at arm’s length (within the meaning of the Tax Act) at the time of making such payment, (ii) which is a “specified shareholder” of RCCI, or which does not deal at arm’s length (within the meaning of the Tax Act) with a “specified shareholder” of
RCCI as defined in subsection 18(5) of the Tax Act, (iii) which is an entity in respect of which RCI is a “specified entity” (as defined in proposed subsection 18.4(1) of the Tax Act contained in Bill C-59), (iv) where all or any portion of the
amount paid or credited to such holder is deemed to be a dividend pursuant to subsection 214(6) of the Tax Act, (v) which is subject to such Taxes by reason of the holder or beneficial owner carrying on business in, maintaining a permanent
establishment or other physical presence in or otherwise being connected with Canada or any province or territory thereof otherwise than by the acquisition or mere holding of Notes or the receipt of payments thereunder, (vi) which is subject to
such Taxes by reason of the legal nature of the holder or beneficial owner disentitling such holder or beneficial owner to the benefit of an applicable treaty or convention if and to the extent that the application of such treaty or convention
would have resulted in the reduction or elimination of any Taxes as to which Additional Amounts
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would have otherwise been payable to a holder on behalf of such beneficial owner, (vii) which is subject to such Taxes by reason of the failure by a holder or beneficial owner to comply with any certification,
identification, documentation or other reporting requirements if compliance is required by law, regulation, administrative practice or an applicable treaty as a pre-condition to exemption from, or a reduction in the rate of deduction or withholding
of, such Taxes, (viii) if the Notes are presented for payment more than 15 days after the date on which such payment or such Notes became due and payable or the date on which payment thereof is duly provided for, whichever is later (except to the
extent that the holder would have been entitled to such Additional Amounts had the Notes been presented on the last day of such 15-day period), (ix) on account of any estate, inheritance, gift, sales, value added, excise, transfer, use, personal
property tax or similar tax, assessment or governmental charge, (x) that is a fiduciary, partnership or any other entity other than the sole beneficial owner of such payment to the extent the Taxes giving rise to such Additional Amounts would not
have been imposed had the holder of the Notes been the beneficiary, partner or sole beneficial owner, as the case may be, of the payment, (xi) on account of any Taxes (a) that are payable other than by deduction or withholding from a payment of the
principal of, premium, if any, or interest on the Notes, (b) that would not have been imposed but for a change in law, regulation, or administrative or judicial interpretation that becomes effective more than 15 days after the payment becomes due
or is duly provided for, whichever occurs later or (c) that are required to be withheld by any paying agent from any payment of principal of or interest on any Note, if such payment can be made without such withholding or deduction by at least one
other paying agent or (xi) any combination of (i) through (xi). RCCI will also (a) make such withholding or deduction and (b) remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. Upon the written
request of a holder of Notes, RCCI will furnish, as soon as reasonably practicable, to such holder of Notes certified copies of tax receipts evidencing such payment by RCCI.
If a holder in respect of a beneficial owner has received a refund or credit for any Taxes with respect to which RCCI has paid Additional Amounts, such holder shall pay over such refund to RCCI
(but only to the extent of such Additional Amounts), net of all out-of-pocket expenses of such holder or beneficial owner, together with any interest paid by the relevant tax authority in respect of such refund.
At least 30 days prior to each date on which any payment under or with respect to the Guarantee of RCCI is due and payable, if RCCI will be obligated to pay Additional Amounts with respect to such
payment, RCCI will deliver to the Trustee an Officers’ Certificate stating the fact that such Additional Amounts will be payable, stating the amounts so payable and will set forth such other information necessary to enable the Trustee, on behalf of
RCCI, to pay such Additional Amounts to Holders on the payment date. Whenever in the Indenture there is mentioned, in any context, the payment of principal (and premium, if any), redemption price, interest or any other amount payable under or with
respect to the Notes, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
The obligations of RCCI under this Section 704 shall survive the discharge and termination of this Supplemental Indenture and the payment of all amounts under or with respect to the Guarantee.
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SECTION 705 RIGHT OF REDEMPTION; ELECTION TO REDEEM; NOTICE TO TRUSTEE.
(a) If, as a result of
(i) a change in, or an amendment to, the laws (including any regulations, rulings or protocols promulgated thereunder) or
treaties of Canada (or any political subdivision or taxing authority thereof or therein);
(ii) any change in or amendment to, or introduction of, any official position regarding the application, administration or
interpretation of such laws, regulations, rulings, protocols or treaties (including a holding, judgment or order by a court of competent jurisdiction); or
(iii) any official proposal of the aforementioned changes in clauses (i) and (ii) above;
which change, amendment or official proposal is announced or becomes effective on or after the Issue Date of the Notes, RCCI has become or would become obligated to pay, on the next date on which any
amount would be payable under or with respect to the Notes or the Guarantee, any Additional Amounts in accordance with Section 704 of this Supplemental Indenture, then the Company may, at its option, redeem such Notes, as a whole but not in part,
at a Redemption Price equal to 100% of their principal amount, plus accrued and unpaid interest thereon, if any, to but not including the Redemption Date (subject to the right of Holders on the relevant record date to receive interest due on the
relevant interest payment date), if any; provided that the Company determines, in its good faith judgment, that the obligation to pay such Additional Amounts cannot be avoided by the use of reasonable
commercial measures available to the Company or RCCI not including substitution of the obligor or guarantor under such Notes.
(b) The election of the Company to redeem any Notes pursuant to this Section 705 shall be evidenced by a Board Resolution. In case of such
redemption, the Company shall, at least 10 but not more than 60 days prior to the Redemption Date fixed by it (unless a shorter notice period shall be satisfactory to the Trustee), notify the Trustee of such Redemption Date and of the principal
amount of such Notes to be redeemed.
SECTION 706 PERSONS DEEMED OWNERS.
The reference contained in Section 210 of the Indenture to the obligations of the Company under Section 907 of the Indenture shall be deemed to include the obligations of RCCI under Section 704 of this Supplemental
Indenture.
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ARTICLE EIGHT
AMENDMENTS TO INDENTURE
SECTION 801 AMENDMENT TO INDENTURE SECTION 106.For purposes of the Notes issued under this Supplemental Indenture, Section 106
is hereby amended by adding the following:
“The Trustee agrees to accept and act upon instructions, including funds transfer instructions (“Instructions”) given pursuant to this Supplemental Indenture and related financing documents and delivered using
Electronic Means; provided, however, that the Trustee shall have received an incumbency certificate listing the Authorized Officers and containing specimen
signatures of such Authorized Officers, which such incumbency certificate shall be amended by the Company whenever a person is to be added or deleted from the listing. If the Company 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 understands and agrees 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 Authorized Officer listed on the incumbency certificate provided to the Trustee have been sent by such Authorized
Officer. The Company shall be responsible for ensuring that only Authorized Officers transmit such Instructions to the Trustee and that the Company and all Authorized Officers are solely responsible to safeguard the use and confidentiality of
applicable user and authorization codes, passwords and/or authentication keys upon receipt by the Company. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and
compliance with such Instructions notwithstanding such Instructions conflict or are inconsistent with a subsequent written instruction. The Company agrees: (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; (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 promptly upon learning of any compromise or unauthorized use of the
security procedures.”
SECTION 802 AMENDMENT TO INDENTURE SECTION 115.
For purposes of the Notes issued under this Supplemental Indenture, Section 115 is hereby amended by adding the following:
“The Company irrevocably consents to the nonexclusive jurisdiction of any court of the State of New York or any United States Federal court sitting, in each case, in the Borough of Manhattan, The City of New York, New
York, United States of America, and any appellate court from any thereof, and waives any immunity from the jurisdiction of such courts over any suit, action or proceeding that may be brought by the Trustee or Holders of the Notes in
44
connection with this Supplemental Indenture or the Notes. The Company irrevocably waives, to the fullest extent permitted by law, any objection to any suit, action or proceeding that may be brought in connection with this Supplemental Indenture
or the Notes in such courts on the grounds of venue or on the ground that any such suit, action or proceeding has been brought in an inconvenient forum. The Company agrees that final judgment in any such suit, action or proceeding brought in such
court shall be conclusive and binding upon the Company and may be enforced in any court to the jurisdiction of which the Company is subject by a suit upon such judgment; provided that service of process is effected upon the Company in the manner
provided by the Indenture.
ALL PARTIES HERETO HEREBY IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHTS TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR THE TRANSACTIONS CONTEMPLATED
HEREBY.”
SECTION 803 AMENDMENT TO INDENTURE SECTION 401.For purposes of the Notes issued under this Supplemental Indenture, Section
401(b) is hereby amended and restated in its entirety as follows:
“(b) default in the payment of any interest, including any Additional Amounts on any Notes when it becomes due and payable, and continuance of such default for a period of 30 days; or”
SECTION 804 AMENDMENT TO INDENTURE SECTION 401.
For purposes of the Notes issued under this Supplemental Indenture, Section 401 is hereby amended by adding the following as the third paragraph of Section 401:
“Notwithstanding any other provision herein, the Trustee shall not be deemed to have notice of any Default or Event of Default unless a written notice of any event which is in fact such a default is received by a Trust
Officer of the Trustee at the Corporate Trust Office of the Trustee, and such notice references the applicable Series of Securities.”
SECTION 805 AMENDMENT TO INDENTURE ARTICLE FIVE
For purposes of the Notes issued under this Supplemental Indenture, Article Five is hereby amended by adding the following as a new Section 515:
“Section 515: 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
Supplemental 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 with written notice to the Company provided
that: (i) the Trustee’s written notice shall, to the extent
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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
(ii) if such circumstances are rectified to the Trustee’s satisfaction within a period specified within the written notice, then such resignation shall not be effective.”
SECTION 806 AMENDMENT TO INDENTURE SECTION 701.
For purposes of the Notes issued under this Supplemental Indenture, Section 701(a)(1) is hereby amended and restated in its entirety as follows:
“(1) the Company shall be the continuing Person or”
SECTION 807 AMENDMENT TO INDENTURE SECTION 906.
For purposes of the Notes issued under this Supplemental Indenture, Section 906 is hereby amended and restated in its entirety as follows:
“(a) If the Company is not required to file with the Commission the Financial Reports, the Company will furnish (without cost) to each holder of Notes then outstanding and file with the Trustee (i) within 120
days after the end of each fiscal year, its audited consolidated financial statements for such fiscal year prepared in accordance with GAAP and substantially in the form prescribed by applicable Canadian securities regulatory authorities for
Canadian public reporting companies (whether or not the Company is a public reporting company at the time) and (ii) within 60 days after the end of each of the first three fiscal quarters of each fiscal year, unaudited consolidated financial
statements for the interim period as at, and for the interim period ending on, the end of such fiscal quarter prepared in accordance with GAAP and substantially in the form prescribed by applicable Canadian securities regulatory authorities for
Canadian public reporting companies (whether or not the Company is a public reporting company at the time).
(b) The obligations of the Company to deliver the Financial Reports or the financial statements referred to in the preceding paragraph will be deemed satisfied if any parent entity of the Company has delivered
to the Trustee (including by making them publicly available on SEDAR+ or EDGAR) the applicable Financial Reports or financial statements, as applicable, 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 Reports or
financial statements, as applicable) “summary financial information” as defined in Section 13.4 of National Instrument 51-102 – Continuous Disclosure Obligations (“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 (if any) (on a
combined basis), (iv) any other subsidiaries of the parent entity (on a combined basis), (v) consolidating adjustments and (vi) total consolidated amounts.
(c) Delivery of such Financial Reports or financial statements, as applicable, to the Trustee is for informational purposes only, and the Trustee’s receipt thereof shall not constitute actual or constructive
notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its
46
covenants (as to which the Trustee is entitled to certificates). The Trustee shall not be obligated to monitor or confirm, on a continuing basis or otherwise, the Company’s compliance with the covenants or with respect to any reports or other
documents filed on SEDAR+, EDGAR or any website.
(d) Delivery of reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute actual or constructive notice of any information
contained therein or determinable from information contained therein, including the Company’s or RCCI’s compliance with any of their covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers’ Certificates).”
SECTION 808 AMENDMENT TO INDENTURE SECTION 603.
For purposes of the Notes issued under this Supplemental Indenture, Section 603 is hereby amended and restated in its entirety as follows:
“So long as any Notes remain outstanding, the Company will provide to the Trustee within 30 days after the Company is required to file the same with the Commission, copies of the annual reports and quarterly reports
and of the information, documents and other reports which the Company may be required to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act (collectively, the “Financial Reports”); 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 EDGAR or any other website maintained by the securities
regulatory authorities in Canada or the Commission. Notwithstanding the foregoing, it shall not be the responsibility of the Trustee to monitor postings of the Company on SEDAR+ or EDGAR or any other applicable website, 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 websites copies of the Company’s annual report and of the information,
documents and other reports (or copies of such portions of any of the foregoing as the Commission may by rules and regulations prescribe) which the Company is required to file with the Commission pursuant to Section 13 or 15(d) of the Exchange
Act.”
SECTION 809 AMENDMENT TO INDENTURE SECTION 907.
For purposes of the Notes issued under this Supplemental Indenture, Section 907 is hereby amended and restated in its entirety as follows:
“All payments made by the Company under or with respect to the Notes or the Guarantee will be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other
governmental charge imposed or levied by or on behalf of the Government of Canada or of any province or territory thereof or by any authority or agency therein or thereof having power to tax (hereinafter “Taxes”), unless the Company is required to
withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant government authority or agency. If the Company is so required to withhold or deduct any amount for or on account of Taxes from any payment made
under or with respect to the Notes, the Company will pay as interest such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by each holder of
47
such Notes in respect of a beneficial owner (including Additional Amounts) after such withholding or deduction will not be less than the amount such holder would have received in respect of the beneficial owner if such Taxes had not been
withheld or deducted; provided that no Additional Amounts will be payable with respect to a payment made to a holder of the Notes in respect of a beneficial owner (i) with which the Company does not deal at arm’s length (within the meaning of the
Income Tax Act (Canada) (the “Tax Act”)) at the time of making such payment or which is entitled to the payment in respect of a debt or other obligation to pay an amount to a person with which the Company does not deal at arm’s length (within the
meaning of the Tax Act) at the time of making such payment, (ii) which is a “specified shareholder” of the Company, or which does not deal at arm’s length (within the meaning of the Tax Act) with a “specified shareholder” of the Company as defined
in subsection 18(5) of the Tax Act, (iii) which is an entity in respect of which RCI is a “specified entity” (as defined in proposed subsection 18.4(1) of the Tax Act contained in Bill C-59), (iv) where all or any portion of the amount paid or
credited to such holder is deemed to be a dividend pursuant to subsection 214(6) of the Tax Act, (v) which is subject to such Taxes by reason of the holder or beneficial owner carrying on business in, maintaining a permanent establishment or other
physical presence in or otherwise being connected with Canada or any province or territory thereof otherwise than by the acquisition or mere holding of Notes or the receipt of payments thereunder, (vi) which is subject to such Taxes by reason of
the legal nature of the holder or beneficial owner disentitling such holder or beneficial owner to the benefit of an applicable treaty or convention if and to the extent that the application of such treaty or convention would have resulted in the
reduction or elimination of any Taxes as to which Additional Amounts would have otherwise been payable to a holder on behalf of such beneficial owner, (vii) which is subject to such Taxes by reason of the failure by a holder or beneficial owner to
comply with any certification, identification, documentation or other reporting requirements if compliance is required by law, regulation, administrative practice or an applicable treaty as a pre-condition to exemption from, or a reduction in the
rate of deduction or withholding of, such Taxes, (viii) if the Notes are presented for payment more than 15 days after the date on which such payment or such Notes became due and payable or the date on which payment thereof is duly provided for,
whichever is later (except to the extent that the holder would have been entitled to such Additional Amounts had the Notes been presented on the last day of such 15-day period), (ix) on account of any estate, inheritance, gift, sales, value added,
excise, transfer, use, personal property tax or similar tax, assessment or governmental charge, (x) that is a fiduciary, partnership or any other entity other than the sole beneficial owner of such payment to the extent the Taxes giving rise to
such Additional Amounts would not have been imposed had the holder of the Notes been the beneficiary, partner or sole beneficial owner, as the case may be, of the payment, (xi) on account of any Taxes (a) that are payable other than by deduction or
withholding from a payment of the principal of, premium, if any, or interest on the Notes, (b) that would not have been imposed but for a change in law, regulation, or administrative or judicial interpretation that becomes effective more than 15
days after the payment becomes due or is duly provided for, whichever occurs later or (c) that are required to be withheld by any paying agent from any payment of principal of or interest on any Note, if such payment can be made without such
withholding or deduction by at least one other paying agent or (xii) any combination of (i) through (xi). The Company will also (a) make such withholding or deduction and (b) remit the full amount deducted or withheld to the relevant authority in
accordance with applicable law. Upon the written request of a holder of Notes, the
48
Company will furnish, as soon as reasonably practicable, to such holder of Notes certified copies of tax receipts evidencing such payment by the Company.
If a holder in respect of a beneficial owner has received a refund or credit for any Taxes with respect to which the Company has paid Additional Amounts, such holder shall pay over such refund to
the Company (but only to the extent of such Additional Amounts), net of all out-of-pocket expenses of such holder or beneficial owner, together with any interest paid by the relevant tax authority in respect of such refund.
At least 30 days prior to each date on which any payment under or with respect to the Guarantee of the Company is due and payable, if the Company will be obligated to pay Additional Amounts with
respect to such payment, the Company will deliver to the Trustee an Officers’ Certificate stating the fact that such Additional Amounts will be payable, stating the amounts so payable and will set forth such other information necessary to enable
the Trustee, on behalf of the Company, to pay such Additional Amounts to Holders on the payment date. Whenever in the Indenture there is mentioned, in any context, the payment of principal (and premium, if any), redemption price, interest or any
other amount payable under or with respect to the Notes, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
The obligations of the Company under this Section 907 shall survive the discharge and termination of this Supplemental Indenture and the payment of all amounts under or with respect to the
Guarantee.”
SECTION 810 AMENDMENT TO INDENTURE SECTION 1001.
For purposes of the Notes issued under this Supplemental Indenture, Section 1001(b) is hereby amended and restated in its entirety as follows:
“(b) If, as a result of
(i) a change in, or an amendment to, the laws (including any regulations, rulings or protocols promulgated thereunder) or
treaties of Canada (or any political subdivision or taxing authority thereof or therein);
(ii) any change in or amendment to, or introduction of, any official position regarding the application, administration or
interpretation of such laws, regulations, rulings, protocols or treaties (including a holding, judgment or order by a court of competent jurisdiction); or
(iii) any official proposal of the aforementioned changes in clauses (i) and (ii) above;
which change, amendment or official proposal is announced or becomes effective on or after the Issue Date of the Notes, the Company has become or would become obligated to pay, on the next date on which
any amount would be payable under or with respect to the Notes, any Additional Amounts in accordance with Section 907 of the Indenture, as amended and restated by this Supplemental Indenture, then the Company may, at its option, redeem such Notes,
as a whole but not in part, at a Redemption Price equal to
49
100% of their principal amount, plus accrued and unpaid interest thereon, if any, to but not including the Redemption Date (subject to the right of Holders on the relevant record date to receive
interest due on the relevant interest payment date), if any; provided that the Company determines, in its good faith judgment, that the obligation to pay such Additional Amounts cannot be avoided by the use
of reasonable commercial measures available to the Company not including substitution of the obligor under such Notes.
The election of the Company to redeem any Notes pursuant to this Section 1001(b) shall be evidenced by a Board Resolution. In case of such redemption, the Company shall, at least 10 but not more than 60
days prior to the Redemption Date fixed by it (unless a shorter notice period shall be satisfactory to the Trustee), notify the Trustee of such Redemption Date and of the principal amount of such Notes to be redeemed.”
SECTION 811 AMENDMENT TO INDENTURE SECTION 1004.
For purposes of the Notes issued under this Supplemental Indenture, Section 1004 is hereby amended and restated in its entirety as follows:
“If less than all of the Notes are to be redeemed at any time, selection of Notes of for redemption will be made by the Trustee on a pro rata basis or by lot or otherwise in
accordance with the procedures of DTC, unless the Company notifies the Trustee in writing that the Notes are listed on any national securities exchange, in which case such selection shall be made in compliance with the requirements of the principal
national securities exchange, if any, on which the Notes are listed; provided that no Notes of U.S.$2,000 or less shall be purchased or redeemed in part.
The Trustee shall promptly notify the Company and the Security Registrar in writing of the Securities selected for redemption and, in the case of any Securities selected for partial redemption, the principal amount
thereof to be redeemed.
A new Note in principal amount equal to the unpurchased or unredeemed portion of any Note purchased or redeemed in part will be issued in the name of the holder thereof upon cancellation of the original Note.”
SECTION 812 AMENDMENT TO INDENTURE SECTION 1005.
For purposes of the Notes issued under this Supplemental Indenture, Section 1005 is hereby amended and restated in its entirety as follows:
“Notice of intention to redeem any Notes pursuant to Section 1001 as so modified by this Supplemental Indenture shall be delivered by or on behalf of the Company to the Holders of the Notes 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 112 of the Supplemental Indenture. Every such notice of redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price;
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(c) if less than all Outstanding Notes are to be redeemed, the identification (and, in the case of a Note to be redeemed in part, the
principal amount) of the particular Notes 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 Note 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 Notes are to be surrendered for payment of the Redemption Price; and
(f) any conditions to the redemption.
Any redemption pursuant to Section 1001 as so modified by this Supplemental Indenture (and any related notice of 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 Notes 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 Notes that were to 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 Notes 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.
Notice of redemption of Notes to be redeemed shall be given by the Company or, at its request, by the Trustee in the name and at the expense of the Company. Any inadvertent defect in a notice of redemption, including
an inadvertent failure to deliver such notice, to any Holder whose Notes are selected for redemption will not impair or affect the validity of the redemption of any the Notes of any other Holder that are to be redeemed.”
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SECTION 813 MISCELLANEOUS AMENDMENTS.
Notwithstanding anything to the contrary in the Indenture, including Section 204 thereof, this Supplemental Indenture and the Notes may be executed and authenticated by manual, facsimile or electronic signature.
[Remainder of the Page Intentionally Left Blank]
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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. | ||||
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By:
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[REDACTED] |
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| Name: | [REDACTED] | |||
| Title: | [REDACTED] | |||
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By:
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[REDACTED] | ||
| Name: | [REDACTED] | |||
| Title: | [REDACTED] | |||
| ROGERS COMMUNICATIONS CANADA INC., | ||||
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By:
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[REDACTED] | ||
| Name: | [REDACTED] | |||
| Title: | [REDACTED] | |||
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By:
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[REDACTED] | ||
| Name: | [REDACTED] | |||
| Title: | [REDACTED] | |||
[Signature Page to the Supplemental Indenture]
| THE BANK OF NEW YORK MELLON, as Trustee | ||||
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By:
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/s/ Glenn McKeever
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| Name: | Glenn McKeever | |||
| Title: | Vice President |
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[Signature Page to the Supplemental Indenture]