EXHIBIT 4.4
PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT is made as of the 11th day of March,
2004
BETWEEN:
ROGERS CABLE INC., a corporation incorporated under
the Business Corporations Act (Ontario)
(the "Company")
and
ROGERS CABLE COMMUNICATIONS INC., a corporation
incorporated under the Business Corporations Act
(Ontario)
("RCCI")
and
JPMORGAN CHASE BANK, a New York banking corporation,
as trustee
(the "Trustee")
In consideration of the premises herein contained and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, it is hereby covenanted, agreed and acknowledged by and between
the parties hereto as follows:
1. Reference is made to that certain indenture, of even date herewith,
between the Company, as issuer, and the Trustee, as trustee, providing
for the issuance of the Securities (as defined below), as the same may
be amended, supplemented, restated or replaced from time to time (the
"Indenture"). In this Pledge Agreement, unless something in the subject
matter or context is inconsistent therewith, capitalized terms used but
not defined herein have the respective meanings attributed to them in
the Indenture as in effect on the date hereof, and "Securities" means
the U.S.$350,000,000 aggregate principal amount of 5.500% Senior
(Secured) Second Priority Notes due 2014 of the Company and the
Exchange Securities issued under the Indenture.
2. The Company hereby deposits with and assigns and pledges to the Trustee
the Trust Bond to be held by the Trustee pursuant to the provisions
hereof, as trustee for and on behalf of each of the holders of
Securities, as general and continuing collateral security for the due
repayment and satisfaction of all present and future indebtedness,
liabilities and obligations of the Company of any kind whatsoever
under, in connection with or relating to the Indenture, including,
without limitation, the Securities and any ultimate unpaid balance
thereof, and to secure the due performance of all other present and
future obligations of the Company to the Trustee (including obligations
under Section 607 of
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the Indenture) and the holders of Securities under the Indenture and
the Securities (collectively, the "Obligations").
3. If, at any time, an Event of Default shall have occurred and be
continuing, the Trustee may, at any time, realize upon the Trust Bond,
in the manner and to the extent permitted by law, by sale, transfer or
delivery, and may exercise and enforce all rights and remedies of the
holder of the Trust Bond (including, without limitation, making demand
thereunder as if the Trustee were the absolute owner thereof) without
notice to, consent of or control by the Company and RCCI, and, except
to the extent required by law, any such right or remedy may be
exercised separately or in combination with any other right or remedy
and shall be in addition to and not in substitution for any other
rights of the Trustee however created; provided that the Trustee shall
not be bound to exercise any such right or remedy and shall not be
liable for any loss which may be occasioned by any failure to do so;
and provided further that any such sale, transfer or delivery shall be
on terms whereby the Person acquiring the Trust Bond shall hold the
Trust Bond subject to the provisions hereof.
4. If any moneys received by the Trustee as payment under the Trust Bond
or by way of realization of the security hereby constituted are in a
currency (the "Realization Currency") which is different from the
currency of any of the Obligations secured hereby (the "Agreed
Currency"), then, in such event, the Trustee shall be entitled to
convert all or a portion of such moneys as are in the Realization
Currency into the Agreed Currency at the rate of exchange quoted by The
Toronto-Dominion Bank at its central foreign exchange desk in its head
office in Toronto at 12:00 noon (Toronto time) on the date of receipt
and to apply the new amount of moneys received on such conversion on
account of the Obligations hereby secured, and, in any such case, the
amount of the Obligations hereby secured will be reduced by the amount
of the Agreed Currency so applied, and, for greater certainty, the
Company and RCCI shall remain fully liable for the balance of such
Obligations.
5. The proceeds of the Trust Bond, including, without limitation, any
distributions in respect thereof by the Trustee, shall be applied by
the Trustee on account of such part of the Obligations as it chooses
without prejudice to its claims upon the Company and RCCI for any
deficiency.
6. The Trustee may, from time to time, grant extensions of time or other
indulgences, take and give up securities, accept compositions, grant
releases and discharges and otherwise deal with the Company, RCCI and
other parties, sureties or securities as the Trustee may see fit in
accordance with the terms of the Indenture and the Securities without
prejudice to the Trustee's rights in respect of the Trust Bond or in
any way limiting or lessening the liability of the Company or RCCI
under the Trust Bond.
7. Upon full, final and irrevocable satisfaction of the Obligations, the
Trust Bond, upon Company Order, shall be delivered to the Deed Trustee
for cancellation.
8. The Trust Bond shall not operate by way of merger of any of the
Obligations, and no judgment recovered by or on behalf of the Trustee
shall operate by way of merger of, or
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in any way affect, the security of the Trust Bond which is in addition
to and not in substitution for any other security now or hereafter held
by the Trustee.
9. Notwithstanding the provisions of any other section of this Pledge
Agreement or any provisions of the Indenture, the Inter-Creditor
Agreement, the Deed of Trust or any security provided for thereunder,
under no circumstances, other than if an Event of Default shall have
occurred and be continuing, may the Trustee collect or claim a right to
collect any amounts on or in respect of the Trust Bond or pursuant to
any provisions of the Deed of Trust or the security provided for
thereunder or under the Indenture. If any such amount is, for any
reason, received by the Trustee, it shall pay over the amount to the
Company, RCCI or to any Restricted Subsidiary providing security in
respect of the Obligations (the "Payee") unless (i) an Event of Default
shall have occurred and be continuing or (ii) a Default shall have
occurred and be continuing, in which case, the Trustee shall retain
such amount in trust for the benefit of the Payee until (a) the Default
has been cured or (b) any applicable grace period in respect of such
Default has expired, at which time, the Trustee shall pay over such
amount to the Payee unless an Event of Default shall have occurred and
be continuing. Any such amount received by the Trustee which it is
required to pay to a Payee pursuant to this Section 9 shall, in no
circumstances, be deemed to be a payment on account of the Obligations.
10. Notwithstanding that the Trust Bond is expressed to be payable on
demand, the Trustee shall have no right to, and shall not, demand
payment unless or until an Event of Default shall have occurred and be
continuing. Notwithstanding any provisions of the Trust Bond, payment
to the Trustee or to the holders of Securities of interest for any
period in respect of the Obligations shall be deemed to be payment in
satisfaction of the interest payment for the same period under the
Trust Bond. No payment of principal on account of any of the
Obligations shall be treated as a payment on account of any of the
principal amount of the Trust Bond. The Trustee, in realizing on the
Trust Bond or the security constituted thereby, shall not claim under
the Trust Bond any greater amount in the aggregate for principal and
interest than the aggregate of the Obligations then owing by the
Company.
11. The Company and RCCI shall not amend, modify or supplement, or waive or
consent to departures from, the provisions of the Trust Bond or any
other pledge agreement relating to any other Senior Secured Bond (as
such term is defined in the Deed of Trust) issued pursuant to the Deed
of Trust except as provided in the Deed of Trust.
12. (a) Upon the deposit of the Trust Bond pursuant to Section 2 hereof,
the Trust Bond shall have a legend conspicuously noted thereon
substantially in the form of the legend below:
"This Senior Secured Bond is subject to the terms and
conditions of a pledge agreement, of even date
herewith, entered into by the Company, RCCI and
JPMorgan Chase Bank, as trustee, in connection with
the issue by the Company of U.S.$350,000,000
aggregate principal amount of 5.500% Senior (Secured)
Second Priority Notes due 2014."
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(b) Any bond issued under the Deed of Trust in substitution for,
or in replacement of, the Trust Bond shall have conspicuously
noted thereon the legend referred to in Section 12(a) hereof.
13. The provisions hereof shall be binding upon, and shall inure to the
benefit of, the Company, RCCI, the Trustee and the holders of
Securities and their respective successors and permitted assigns.
14. Nothing contained herein, in the Trust Bond or in the Deed of Trust
shall amend, modify, vary or otherwise change the rights of the Trustee
or any of the holders of Securities or the obligations of the Company
under the Indenture or in respect of the Securities or shall limit the
rights of the Trustee or any of the holders of Securities under, or in
respect of, the Obligations.
15. This Agreement shall be governed by and construed and enforced in
accordance with the laws of the Province of Ontario and the laws of
Canada applicable therein.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
instrument as of the day and year first above written.
ROGERS CABLE INC.
By: /s/ M. Lorraine Daly
--------------------------------
Name: M. Lorraine Daly
Title: Vice-President, Treasurer
By: /s/ Alan D. Horn
--------------------------------
Name: Alan D. Horn
Title: Vice-President
ROGERS CABLE COMMUNICATIONS INC.
By: /s/ M. Lorraine Daly
--------------------------------
Name: M. Lorraine Daly
Title: Vice-President, Treasurer
By: /s/ Alan D. Horn
--------------------------------
Name: Alan D. Horn
Title: Vice-President
JPMORGAN CHASE BANK, as trustee for
the Notes
By: /s/ Rosa Ciaccia
--------------------------------
Name: Rosa Ciaccia
Title: Trust Officer