Exhibit 4.4(a)
THIS PLEDGE AGREEMENT made as of the 30th day of November, 2004.
B E T W E E N:
ROGERS WIRELESS INC., a corporation organized under the Canada
Business Corporations Act
(the "COMPANY")
-- and --
JPMORGAN CHASE BANK, N.A., a national banking association
organized and operating under the laws of the United States,
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. 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
defined below) as in effect on the date hereof and:
(i) "INDENTURE" means 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; and
(ii) "SECURITIES" means the Cdn.$460,000,000 aggregate principal amount
of 7.625% Senior (Secured) Notes due 2011 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
under the Indenture, as general and continuing collateral security for the
due repayment and satisfaction of all present and future indebtedness,
liabilities and obligations 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 of the other present and future obligations of the
Company to the Trustee (including obligations under section 607 of the
Indenture) and the holders of the 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 a holder
of the Trust Bond (including, without limitation, making demand thereunder
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as if the Trustee was the absolute owner thereof), without notice to,
consent of or control by the Company, 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 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 the Trustee's claim upon the Company 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 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,
or in any way limiting or lessening the liability of the Company under, or
the Trustee's right in respect of, 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 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 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
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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, the Trustee
shall pay over the amount to the Company or to the 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 the Trustee is
required to pay to the 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 the holders of the 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 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 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 Bond is subject to the terms and conditions of a pledge
agreement, of even date herewith, between Rogers Wireless Inc.
and JPMorgan Chase Bank, N.A., as trustee."
(b) Any bond issued under the Deed of Trust in substitution for, or on
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, the Trustee and the holders of the Securities under the
Indenture and their respective successors and assigns.
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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 the 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 WIRELESS INC.
By: /s/ M. Lorraine Daly
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M. Lorraine Daly
Vice-President, Treasurer
By /s/ Alan D. Horn
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Alan D. Horn
Vice-President
JPMORGAN CHASE BANK, N.A., as trustee
By: /s/ Rosa Ciaccia
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Name: Rosa Ciaccia
Title: Trust Officer