Exhibit 4.7(a)
COMPANY SUBORDINATION AGREEMENT WITH AGENT
SUBORDINATION AGREEMENT (the "Agreement"), made as of the 30th day
of November, 2004 among Rogers Wireless Inc., a corporation organized under the
Canada Business Corporations Act (the "Company"), National Trust Company, a
trust company incorporated under the laws of Ontario (hereinafter called the
"Deed Trustee"), JPMorgan Chase Bank, N.A., a national banking association
organized under the laws of the United States, as trustee (the "Trustee"), and
The Bank of Nova Scotia as administrative agent (the "Agent") for the several
lenders (individually, a "Bank" and, collectively, the "Banks") from time to
time who are parties to the Bank Credit Agreement (as defined in Article 1
hereof).
WHEREAS the Company has authorized and issued U.S.$400,000,000
aggregate principal amount of the Securities (as defined in Article 1);
WHEREAS each Holder of a Security by its acceptance thereof has
authorized and directed the Trustee on the Holder's behalf to take such action
as may be necessary or appropriate to acknowledge or effectuate the
subordination provided in this Agreement and has appointed the Trustee its
attorney-in-fact for any and all such purposes;
WHEREAS the Deed Trustee is required by the terms of the Bank Credit
Agreement (as defined in Article 1 hereof) to be a party to this Agreement;
NOW THEREFORE, for valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company, the Deed Trustee, the
Trustee and the Agent agree as follows:
ARTICLE 1
DEFINITIONS
(a) "Additional Bonds" means a bond or bonds, in addition to the Bond,
issued under the Deed of Trust.
(b) "Bank Credit Agreement" means the Amended and Restated Credit
Agreement dated as of March 15, 1997, as amended by a first
supplemental agreement dated as of April 12, 2001 and as further
amended by a second amending agreement dated as of October 8, 2004,
in each case, among the Company, the Banks and the Agent as in
effect on the date of this Agreement and as such agreement may be
further amended, renewed, extended, substituted, refinanced,
restructured, replaced, supplemented or otherwise modified from time
to time.
(c) "Bankruptcy Law" means the Bankruptcy and Insolvency Act (Canada) or
any other Canadian federal or provincial law or the law of any other
jurisdiction (including, without limitation, the United States of
America) relating to bankruptcy, insolvency, winding-up,
liquidation, reorganization or relief of debtors.
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(d) "Bankruptcy Order" means any court order made in a proceeding
pursuant to or within the meaning of any Bankruptcy Law, containing
an adjudication of bankruptcy or insolvency, or providing for
liquidation, winding-up, dissolution or reorganization, or
appointing a custodian of a debtor or of all or any substantial part
of a debtor's property, or providing for the staying, arrangement,
adjustment or composition of indebtedness or other relief of a
debtor.
(e) "Bond" means the senior secured bond in the principal amount of
Cdn.$4,000,000,000 dated as of March 15, 1997 issued by the Company
under the Deed of Trust and pledged pursuant to the Bond Pledge
Agreement.
(f) "Bond Pledge Agreement" means the bond pledge agreement dated as of
March 15, 1997 and pursuant to which the Bond is pledged to the
Company to and in favour of the Agent for and on behalf of itself
and each of the Banks.
(g) "cash equivalents" means money, certified cheques, demand deposit
accounts held by the Deed Trustee or other instruments or
investments of equivalent liquidity and safety acceptable to holders
of the Designated Senior Indebtedness.
(h) "Designated Senior Indebtedness" means all Senior Indebtedness under
the Bank Credit Agreement.
(i) "Holder" means a Person in whose name a Security is registered in
the Security Register.
(j) "Indenture" means the Indenture, dated as of November 30, 2004,
between the Company and the Trustee, relating to the Securities, as
originally executed (including all exhibits and schedules thereto)
and as it may from time to time be supplemented or amended by one or
more indentures supplemental thereto entered into pursuant to the
applicable provisions thereof.
(k) "Initial Blockage Period" has the meaning specified in Section
2.3(b) hereof.
(l) "Lien" means any mortgage, charge, pledge, lien, privilege, security
interest, hypothec, cession and transfer, lease of real property or
other encumbrance upon or with respect to any Property of an
Obligor, now owned or hereafter acquired.
(m) "Non-payment Event of Default" means any event (other than a Payment
Default), the occurrence of which entitles one or more Persons to
accelerate the maturity of any Designated Senior Indebtedness.
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(n) "Obligors" means the Company and any Restricted Subsidiaries (as
defined in the Bank Credit Agreement) collectively, and "Obligor"
means any one of them individually.
(o) "Payment Blockage Period" has the meaning specified in Section
2.3(b) hereof.
(p) "Payment Default" means any default, whether or not any requirement
for the giving of notice, the lapse of time or both, or any other
condition to such default becoming an event of default has occurred,
in the payment of principal of (or premium, if any) or interest on,
or any other amount payable in connection with, Designated Senior
Indebtedness.
(q) "payment in full", "paid in full" and any term of similar import
means either (i) the actual payment in full of an obligation or
indebtedness in cash or cash equivalents in the currency in which
the obligation or indebtedness is denominated or, subject to any
provision in the instrument governing such obligation or
indebtedness relating to conversion of amounts received in a
judgment currency other than the payment currency, the equivalent in
Canadian dollars or (ii) the provision for such payment; provided
that such provision shall be satisfactory to each of the Banks and
shall be the same for all holders of Senior Indebtedness.
(r) "Permitted Junior Securities" has the meaning specified in Section
2.2 hereof.
(s) "Property" means, with respect to any Person, all of its
undertaking, property or assets of any kind.
(t) "Securities" means the Company's 8.00% Senior Subordinated Notes due
2012.
(u) "Senior Indebtedness" means any liability or obligation secured by
the Bond or an Additional Bond or by liens ranking prior to the
liens securing Bonds and, without duplication, the principal of (and
premium, if any) and interest on and all other amounts due on or in
connection with any Debt of the Company, whether outstanding on the
date of the Indenture or thereafter created, incurred or assumed.
Without limiting the generality of the foregoing, "Senior
Indebtedness" shall include the principal of and premium, if any,
and interest on all obligations of every nature of the Company from
time to time owed to the Banks or the Agent under the Bank Credit
Agreement and to the holders of or the trustee with respect to the
Company's 10-1/2% Senior Secured Notes due 2006, 9-5/8% Senior
Secured Notes due 2011, 6-3/8% Senior (Secured) Notes due 2014,
9-3/4% Senior Secured Debentures due 2016, 7.625% Senior (Secured)
Notes due 2011, Floating Rate Senior (Secured) Notes due 2010, 7.25%
Senior (Secured) Notes due 2012 and 7.50% Senior (Secured) Notes due
2015.
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Notwithstanding the foregoing, "Senior Indebtedness" shall not
include (A) Debt evidenced by the Securities, (B) Debt of the
Company that is expressly subordinated in right of payment to any
Senior Indebtedness of the Company or the Securities, (C) Debt of
the Company that by operation of law is subordinate to any general
unsecured obligations of the Company, (D) Debt of the Company to the
extent incurred in violation of the provisions of Section 1008 of
the Indenture, (E) Inter-Company Subordinated Debt or Inter-Company
Deeply Subordinated Debt or Debt of the Company to any Subsidiary,
(F) any liability for Canadian federal, provincial or local taxes or
U.S. federal, state or local taxes, or other taxes, owed or owing by
the Company and (G) trade payables owed or owing by the Company.
(v) "Subordinated Obligations" has the meaning specified in Section 2.1
hereof.
(w) "Taxes" means 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.
All other capitalized terms used herein without definition have the
meanings ascribed thereto in the Indenture.
ARTICLE 2
SUBORDINATION OF SECURITIES
SECTION 2.1 SECURITIES SUBORDINATE TO SENIOR INDEBTEDNESS OF THE COMPANY
The Company covenants and agrees, and each Holder of a Security, by
its acceptance thereof, likewise covenants and agrees that, to the extent and in
the manner hereinafter set forth in this Article, the indebtedness represented
by the Securities and the payment of the principal of (and premium, if any) and
interest on each and all of the Securities and all other amounts payable with
respect thereto (collectively, the "Subordinated Obligations") are hereby
expressly made subordinate and postponed to and subject in right of payment as
provided in this Article to the prior payment in full of all Senior Indebtedness
of the Company. All provisions of this Article 2 shall be subject to Section
2.14.
This Agreement shall constitute a continuing offer to all Persons
who, in reliance upon such Agreement, become holders of, or continue to hold,
Senior Indebtedness, and such provisions are made for the benefit of the holders
of Senior Indebtedness, and such holders are made obligees hereunder and they or
each of them may enforce such provisions.
SECTION 2.2 PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC.
In the event of (a) any insolvency or bankruptcy case or proceeding,
or any receivership, liquidation, arrangement, reorganization or other similar
case or proceeding in connection therewith, relative to the Company or to its
creditors, as such, or to its assets, whether
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voluntary or involuntary, or (b) any liquidation, dissolution or other
winding-up of the Company, whether voluntary or involuntary and whether or not
involving insolvency or bankruptcy, or (c) any general assignment for the
benefit of creditors or any other marshalling of assets or liabilities of the
Company, then and in any such event
(1) the holders of Senior Indebtedness of the Company shall
receive payment in full of all amounts due on or in respect of
all Senior Indebtedness of the Company before the Holders of
the Securities are entitled to receive or retain any payment
or distribution of any kind or character (other than a payment
or distribution (i) from the trust described in Article Four
of the Indenture (and specifically in Section 404 of the
Indenture) or (ii) in the form of equity securities or
subordinated securities of the Company or any successor
obligor with respect to the Senior Indebtedness of the Company
provided for by a plan of arrangement or reorganization or a
proposal under any Bankruptcy Law that, in the case of any
such subordinated securities, are subordinate in right of
payment to all Senior Indebtedness of the Company (or such
successor obligor) that may at the time be outstanding to
substantially the same extent as, or to a greater extent than,
the Securities are so subordinated as provided in this Article
(such equity securities or subordinated securities hereinafter
being "Permitted Junior Securities")) on account of the
Subordinated Obligations; and
(2) any payment or distribution of assets of the Company of any
kind or character, whether in cash, property or securities
(other than a payment or distribution (i) from the trust
described in Article Four of the Indenture (and specifically
in Section 404 of the Indenture) or (ii) in the form of
Permitted Junior Securities), including, without limitation,
by way of set-off or enforcement of any guarantee or
otherwise, which the Trustee or the Holders would be entitled
to receive and retain but for the provisions of this Article
shall be paid by the liquidating trustee or agent or other
Person making such payment or distribution, whether a trustee
in bankruptcy, a receiver or liquidating trustee or otherwise,
immediately and directly to the holders of Senior Indebtedness
of the Company or their representative or representatives or
to the trustee or trustees under any indenture under which any
instruments evidencing any of such Senior Indebtedness may
have been issued, rateably according to the aggregate amounts
remaining unpaid on account of the Senior Indebtedness held or
represented by each, to the extent necessary to make payment
in full of all Senior Indebtedness of the Company remaining
unpaid, after giving effect to any concurrent payment or
distribution, or provision therefor, to or for the holders of
such Senior Indebtedness; and
(3) in the event that, notwithstanding the foregoing provisions of
this Section, the Trustee or the Holder of any Security shall
have received any payment or distribution of assets of the
Company of any kind or character, whether in cash, property or
securities, including, without limitation, by way of set-off
or enforcement of any guarantee or otherwise, in respect of
the
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Subordinated Obligations which the Trustee or the Holder would
be entitled to receive and retain but for the provisions of
this Article, before all Senior Indebtedness of the Company is
paid in full, then and in each such event such payment or
distribution (other than a payment or distribution (i) from
the trust described in Article Four of the Indenture (and
specifically in Section 404 of the Indenture) or (ii) in the
form of Permitted Junior Securities) shall be held by such
recipient in trust and separate and apart from any of its
other property for the benefit of the holders of Senior
Indebtedness of the Company (which trust is hereby declared
and acknowledged), and shall be paid over or delivered
forthwith to the holders of Senior Indebtedness of the Company
or their representative or representatives for application to
the remaining unpaid Senior Indebtedness to the extent
necessary to make payment in full of all Senior Indebtedness
of the Company remaining unpaid, after giving effect to any
concurrent payment or distribution, or provision therefor, to
or for the holders of Senior Indebtedness of the Company; and
(4) for greater certainty, any Taxes that have been withheld or
deducted from any payment or distribution in respect of the
Securities, or any Taxes that ought to have been withheld or
deducted from any such payment or distribution that have been
remitted to the relevant taxing authority, shall not be
considered to be an amount that a Holder or the Trustee is
entitled to receive and retain for the purposes of Section
2.2(2), or an amount that a Holder or the Trustee receives for
the purposes of Section 2.2(3). For purposes of this paragraph
(4), "Taxes" additionally includes any present or future tax,
duty, levy, impost, assessment or other governmental charge
imposed or levied by or on behalf of the Government of the
United States of America or of any state or territory thereof
or by any authority or agency therein or thereof having power
to tax.
The amalgamation or consolidation of the Company with, or the merger
of the Company into, another Person or the liquidation or dissolution of the
Company following the conveyance, transfer, lease or other disposal of its
properties and assets substantially as an entirety to another Person upon the
terms and conditions of the Indenture shall not be deemed a dissolution,
winding-up, liquidation, reorganization, arrangement, assignment for the benefit
of creditors or marshalling of assets and liabilities of the Company for the
purposes of this Section if the Person formed by such amalgamation or
consolidation or into which the Company is merged or the Person which acquires
such assets substantially as an entirety, as the case may be, shall, as a part
of such amalgamation, consolidation, merger, conveyance, transfer, lease or
disposal, comply with the conditions of Section 801 of the Indenture.
SECTION 2.3 SUSPENSION OF PAYMENT WHEN DESIGNATED SENIOR INDEBTEDNESS IN DEFAULT
(a) Unless Section 2.2 shall be applicable, upon (1) the occurrence of a
Payment Default and (2) receipt by the Trustee from the Agent (or
such other representative of Designated Senior Indebtedness) of
written notice of such occurrence, no payment or distribution of any
assets of the Company of any kind
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or character shall be made by the Company, including, without
limitation, by way of set-off or enforcement of any guarantee or
otherwise, on account of the Subordinated Obligations or on account
of the purchase or redemption or other acquisition of Securities
unless and until such Payment Default shall have been cured or
waived in writing or shall have ceased to exist or such Designated
Senior Indebtedness shall have been paid in full, after which the
Company shall resume making any and all required payments in respect
of the Securities, including any missed payments.
(b) Unless Section 2.2 shall be applicable, upon (1) the occurrence of a
Non-payment Event of Default and (2) receipt by the Trustee from the
Agent (or such other representative of Designated Senior
Indebtedness) of written notice of such occurrence, then no payment
or distribution of any assets of the Company of any kind or
character (other than a payment or distribution (i) from the trust
described in Article Four of the Indenture (and specifically in
Section 404 of the Indenture) or (ii) in the form of Permitted
Junior Securities) shall be made by the Company, including, without
limitation, by way of set-off or enforcement of any guarantee or
otherwise, on account of the Subordinated Obligations or on account
of the purchase or redemption or other acquisition of Securities for
a period ("Payment Blockage Period") commencing on the date of
receipt by the Trustee of such notice from the Agent (or such other
representative) unless and until (subject to any blockage of
payments that may then be in effect under subsection (a) of this
Section) (x) more than 179 days shall have elapsed since receipt of
such written notice by the Trustee, (y) such Non-payment Event of
Default shall have been cured or waived in writing or shall have
ceased to exist or such Designated Senior Indebtedness shall have
been paid in full or (z) such Payment Blockage Period shall have
been terminated by written notice to the Company or the Trustee from
the Agent (or such other representative), after which, in the case
of clause (x), (y) or (z), the Company shall resume making any and
all required payments in respect of the Securities, including any
missed payments. Notwithstanding any other provision of this
Agreement, in no event shall a Payment Blockage Period extend beyond
179 days from the date of the receipt by the Trustee of the notice
referred to in clause (2) above (the "Initial Blockage Period"). Any
number of additional Payment Blockage Periods may be commenced
during the Initial Blockage Period; provided, however, that no such
additional Payment Blockage Period shall extend beyond the Initial
Blockage Period. After the expiration of the Initial Blockage
Period, no Payment Blockage Period may be commenced until at least
186 consecutive days have elapsed from the last day of the Initial
Blockage Period. Notwithstanding any other provision of this
Agreement, no event of default with respect to Designated Senior
Indebtedness which existed or was continuing on the date of the
commencement of any Payment Blockage Period initiated by the Agent
(or such other representative) for such Designated Senior
Indebtedness shall be, or be made, the basis for the commencement of
a second Payment Blockage Period initiated by the Agent (or such
other representative) for such Designated Senior Indebtedness,
whether or not within the Initial Blockage
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Period, unless such event of default shall have been cured or waived
for a period of not less than 90 consecutive days.
(c) In the event that, notwithstanding the foregoing, the Company shall
make any payment to the Trustee or the Holder of any Security
prohibited by the foregoing provisions of this Section, then and in
each such event such payment shall be paid over and delivered
forthwith to the Company, and no such payment so paid over shall be
treated as a payment of any amount owing to the Trustee or a Holder
of a Security.
SECTION 2.4 LIENS
The Company and the Trustee agree that all of the Subordinated
Obligations are and, except as permitted under the Indenture and the Bank Credit
Agreement, will be unsecured by any Lien upon or with respect to any of the
Property of the Company. For greater certainty, the entering into of this
Agreement does not fulfill the condition precedent, required under Section 5.4
of the Bank Credit Agreement to any of the Subordinated Obligations being
secured by any Lien, that the Company, the Trustee and the Deed Trustee enter
into a subordination and postponement agreement in form and content satisfactory
to the Agent and the Majority Lenders (as defined in the Bank Credit Agreement).
The Trustee agrees that should any Lien arise, whether by operation of law or
otherwise, in its favour, it will hold the benefit thereof in trust for the
holders of the Senior Indebtedness of the Company and, so long as any Senior
Indebtedness of the Company is not paid in full, any payment by or on behalf of
the Company or distribution of Property of the Company with respect to any such
Lien will be made to the holders of the Senior Indebtedness of the Company or
their representative or representatives or to the trustee or trustees under any
indenture under which any instruments evidencing any of such Senior Indebtedness
may have been issued, ratably according to the aggregate amounts remaining
unpaid on account of the Senior Indebtedness held or represented by each, to the
extent necessary to make payment in full of all Senior Indebtedness of the
Company remaining unpaid, after giving effect to any concurrent payment or
distribution to the holders of such Senior Indebtedness.
SECTION 2.5 PAYMENT PERMITTED IF NO DEFAULT
Nothing contained in this Article or elsewhere in this Agreement,
the Indenture or in any of the Securities shall prevent the Company, at any time
except during the pendency of any event referred to in clause (a), (b) or (c) of
Section 2.2 or under the conditions described in Section 2.3, from making
payments at any time of principal of (and premium, if any) or interest on the
Securities.
SECTION 2.6 SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS
Subject to the payment in full of all Senior Indebtedness of the
Company, the Holders of the Securities shall be subrogated (equally and ratably
with the holders of all indebtedness of the Company which by its express terms
is subordinated and postponed to Senior Indebtedness of the Company to the same
extent as the Securities are subordinated and postponed and which is entitled to
like rights of subrogation) to the rights of the holders of
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Senior Indebtedness to the extent that payment of Senior Indebtedness has been
made under Section 2.2 of this Agreement from amounts otherwise payable to
Holders of the Securities, to receive payments and distributions of assets of
the Company of any kind or character, whether in cash, property or securities
applicable to the Senior Indebtedness of the Company until the Subordinated
Obligations shall be paid in full. For purposes of such subrogation, no payments
or distributions to the holders of Senior Indebtedness of the Company of any
cash, property or securities to which the Holders of the Securities or the
Trustee would be entitled except for the provisions of this Article, and no
payments over pursuant to the provisions of this Article to the holders of
Senior Indebtedness of the Company by Holders of the Securities or the Trustee,
shall, as between the Company, its creditors other than holders of Senior
Indebtedness, and the Holders of the Securities, be or be deemed to be a payment
or distribution by the Company to or on account of the Senior Indebtedness of
the Company.
SECTION 2.7 PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS
The provisions of this Article are, and are intended, solely for the
purpose of defining the relative rights of the Holders of the Securities on the
one hand and the holders of Senior Indebtedness of the Company on the other
hand. Nothing contained in this Article or elsewhere in this Agreement, the
Indenture or in the Securities is intended to or shall
(a) impair, as between the Company and the Holders of the Securities,
the obligation of the Company, which is absolute and unconditional,
to pay to the Holders of the Securities the principal of (and
premium, if any) and interest on the Securities, or any payment
required under the Indenture, as and when the same shall become due
and payable in accordance with their terms; or
(b) affect the relative rights against the Company of the Holders of the
Securities and creditors of the Company other than the holders of
Senior Indebtedness of the Company; or
(c) prevent the Trustee or the Holder of any Security from exercising
all remedies otherwise permitted by applicable law upon default
under the Indenture including, without limitation, filing and voting
claims in any proceeding under any Bankruptcy Law, subject to the
rights, if any, under this Article of the holders of Senior
Indebtedness of the Company in respect of cash, property or
securities of the Company received upon the exercise of any such
remedy.
If a holder of Senior Indebtedness or a trustee for such holder
shall receive in such capacity any amount under this Agreement and at the time
of such receipt such holder or trustee is not entitled to (whether by reason of
maturity, acceleration or otherwise) such amount under the terms of such Senior
Indebtedness, then such holder or trustee shall turn such amount over to the
Company. Any such amount so received by any holder of Senior Indebtedness or
trustee for such holder which such holder or trustee is so required to turn over
to the Company shall in no circumstances be considered to be a payment on
account of such Senior Indebtedness.
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SECTION 2.8 NO WAIVER OF SUBORDINATION PROVISIONS
(a) No right of any present or future holder of any Senior Indebtedness
of the Company to enforce subordination as herein provided shall at
any time in any way be prejudiced or impaired by any act or failure
to act on the part of the Company or the Trustee or by any act or
failure to act by any such holder, or by any non-compliance by the
Company or the Trustee with the terms, provisions and covenants of
this Agreement or the Indenture, regardless of any knowledge thereof
any such holder may have or be otherwise charged with.
(b) Without in any way limiting the generality of subsection (a) of this
Section, the holders of Senior Indebtedness of the Company may, at
any time and from time to time, without the consent of or notice to
the Trustee or the Holders of the Securities, without incurring
responsibility to the Holders of the Securities and without
impairing or releasing the subordination provided in this Article or
the obligations hereunder of the Holders of the Securities to the
holders of Senior Indebtedness of the Company, do any one or more of
the following: (1) change the manner, place or terms of payment or
extend the time of payment of, or renew or alter, the terms of
Senior Indebtedness of the Company or the terms of any instrument
evidencing the same or any agreement under which Senior Indebtedness
of the Company is outstanding (including, without limitation, any
increase in the aggregate principal amount of any indebtedness
thereunder, it being understood that any such additional
indebtedness shall not constitute Senior Indebtedness to the extent
incurred in violation of Section 1008 of the Indenture); (2) sell,
exchange, release or otherwise deal with any property pledged,
mortgaged or otherwise securing Senior Indebtedness of the Company;
(3) release any Person liable in any manner for the collection of
Senior Indebtedness of the Company; and (4) exercise or refrain from
exercising any rights against the Company and/or any other Person.
(c) If the Trustee on behalf of the Holders or any Holders should fail
to file a proof of claim in any bankruptcy, insolvency, receivership
or similar proceeding relating to the Company at least 30 days
before the expiration of the time to file such claim or claims, each
holder of Senior Indebtedness of the Company (or its representative)
is hereby authorized to file an appropriate claim for and on behalf
of all or any of the Holders.
SECTION 2.9 NOTICE TO THE TRUSTEE
(a) The Company shall give prompt written notice to the Trustee of any
fact known to it which would prohibit the making of any payment or
distribution to or by the Trustee in respect of the Securities.
Notwithstanding the provisions of this Article or any other
provision of this Agreement, the Trustee shall not be charged with
knowledge of the existence of any facts which would prohibit the
making of any payment to or by the Trustee in respect of the
Securities, unless and until the
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Trustee shall have received written notice thereof from the Company,
the Agent, a representative for the holders of Senior Indebtedness
of the Company or any trustee, fiduciary or agent therefor; and
prior to the receipt of any such written notice, the Trustee,
subject to the provisions of Section 601 of the Indenture, shall be
entitled in all respects to assume that no such facts exist;
provided, however, that, if the Trustee shall not have received the
notice provided for this Section or Section 2.3 hereof prior to the
date on which by the terms of the Indenture any money may become
payable for any purpose (including, without limitation, the payment
of the principal of (and premium, if any) or interest on or any
amounts payable in connection with any Security), then, anything
herein contained to the contrary notwithstanding, the Trustee shall
have full power and authority to receive such money and to apply the
same to the purpose for which such money was received and shall not
be affected with respect to such action taken by any notice to the
contrary which may be received by the Trustee on or after such date.
(b) Subject to the provisions of the Trust Indenture Act Sections 315(a)
through (d), the Trustee shall be entitled to rely on any written
notice delivered to them from time to time by a representative for
the holders of Senior Indebtedness of the Company for the purpose of
ascertaining the Persons entitled to participate in such payment or
distribution, the holders of the Senior Indebtedness of the Company
and other indebtedness of the Company, the amount thereof or payable
thereon, the amount or amounts paid or distributed thereon and all
other facts pertinent thereto or to this Article Two. In the event
that the Trustee determines in good faith that further evidence is
required with respect to the right of any Person as a holder of
Senior Indebtedness of the Company to participate in any payment or
distribution pursuant to this Article, the Trustee may request such
Person to furnish evidence to the reasonable satisfaction of the
Trustee as to the amount of Senior Indebtedness of the Company held
by such Person, the extent to which such Person is entitled to
participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Article and, if
such evidence is not furnished, the Trustee may defer any payment to
such Person pending judicial determination as to the right of such
Person to receive such payment.
SECTION 2.10 RELIANCE ON BANKRUPTCY ORDER OR CERTIFICATE OF LIQUIDATING AGENT
Upon any payment or distribution of assets of the Company referred
to in this Article, the Trustee, subject to the provisions of the Trust
Indenture Act Sections 315(a) through (d), and the Holders of the Securities
shall be entitled to rely on any Bankruptcy Order entered by any court of
competent jurisdiction, or a certificate of (i) the trustee in bankruptcy (or
other court-appointed officer) as to matters over which it has authority, (ii) a
receiver under the Deed of Trust or any other receiver whose certificate is
agreed to by the Deed Trustee or (iii) an assignee for the benefit of all
unsecured creditors as to matters over which it has authority, delivered to the
Trustee or to the Holders of Securities from time to time by any Person, for the
purpose of ascertaining the Persons entitled to participate in such payment or
distribution, the holders of Senior Indebtedness of the Company and other
indebtedness of the Company, the
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amount thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this Article.
SECTION 2.11 RIGHTS OF THE TRUSTEE AS HOLDER OF SENIOR INDEBTEDNESS OF THE
COMPANY; PRESERVATION OF THE TRUSTEE'S RIGHTS
Subject to the terms of this Article, the Trustee in its individual
capacity shall be entitled to all the rights set forth in this Article with
respect to any Senior Indebtedness of the Company which may at any time be held
by it, to the same extent as any other holder of Senior Indebtedness of the
Company, and nothing in this Agreement shall deprive the Trustee of any of its
rights as such holder. Nothing in this Article shall apply to the claims of, or
payments to, the Trustee under or pursuant to Section 607 of the Indenture.
SECTION 2.12 ARTICLE APPLICABLE TO PAYING AGENTS
In case at any time any Paying Agent other than the Trustee shall
have been appointed by the Company under the Indenture and be then acting
thereunder, the term "Trustee" as used in this Article shall in such case
(unless the context otherwise requires) be construed as extending to and
including such Paying Agent within its meaning as fully for all intents and
purposes as if such Paying Agent were named in this Article in addition to or in
place of the Trustee; provided, however, that Section 2.11 shall not apply to
the Company or any Affiliate of the Company if any of them is acting as Paying
Agent.
SECTION 2.13 NO SUSPENSION OF REMEDIES
Nothing contained in this Article shall limit the right of the
Trustee or the Holders to take any action to accelerate the maturity of the
Securities pursuant to Article Five of the Indenture or to pursue any rights or
remedies under the Indenture or under applicable law; provided, however, that,
upon the occurrence and during the continuance of an Event of Default under the
Indenture, neither the Trustee nor any Holder shall be entitled to accelerate
the maturity of all or any of the Subordinated Obligations until the earlier to
occur of the fifth Business Day following the receipt by the Company and the
Agent of a written declaration of acceleration as provided in Section 502 of the
Indenture and the date of acceleration in full of the Designated Senior
Indebtedness. The Trustee agrees that it will immediately upon receipt by it of
a notice of a Default under the Indenture, or the cure or waiver of such
Default, immediately give notice of same to the Deed Trustee.
SECTION 2.14 TRUST MONEYS NOT SUBORDINATED
Notwithstanding anything contained herein to the contrary, payments
from cash or the proceeds of U.S. Government Obligations held in trust under the
provisions of the Indenture relating to defeasance by the Trustee (or such other
trustee who shall have satisfied the requirements of the Indenture) and which
were deposited in accordance with the terms of such provisions of the Indenture
relating to defeasance and not in violation of Section 2.3 hereof and the
corresponding provisions of the Indenture, if any, for the payment of principal
of (and premium, if any) and interest on the Securities shall not be
subordinated to the prior payment of any Senior Indebtedness of the Company or
subject to the restrictions set forth in this Article 2 and none of the Holders
shall be obligated to pay over any such amount to the Company or any
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holder of Senior Indebtedness of the Company or any other creditor of the
Company; provided, however, the Company will not exercise the benefit of such
defeasance without the prior written consent of the Majority Lenders (as defined
in the Bank Credit Agreement), and the Company must provide the Trustee with
written evidence of the prior written consent of the Majority Lenders (as
defined in the Bank Credit Agreement) before it may exercise its defeasance
option.
SECTION 2.15 TRUSTEE TO EFFECTUATE SUBORDINATION
Each Holder of a Security by its acceptance thereof authorizes and
directs the Trustee on its behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Agreement and
appoints the Trustee its attorney-in-fact for any and all such purposes.
SECTION 2.16 ASSIGNMENT BY HOLDERS OF SENIOR INDEBTEDNESS
(a) No payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities made to the
holders of Senior Indebtedness of the Company (1) under Section
2.2(2) by a liquidating trustee or agent or other person or (2)
under Section 2.2(3) by the Trustee or a Holder shall, to the extent
that such payment or distribution to the holders of Senior
Indebtedness has been made from amounts otherwise payable to the
Holders of the Securities, as between the Company and the holders of
Senior Indebtedness to whom such payment or distribution was made,
constitute or be deemed to be a payment on account of such Senior
Indebtedness. If the Trustee or the Holders are not for any reason
entitled to be subrogated to the rights of holders of Senior
Indebtedness in respect of such payment or distribution, then,
subject to clause (b) of this Section, each holder of Senior
Indebtedness to whom any such payment or distribution is made will
promptly after request by the Trustee assign its Senior Indebtedness
to the extent of such payment or distribution and all rights with
respect thereto (excluding any rights to any security) to the
Trustee on behalf of the Holders.
(b) A holder of Senior Indebtedness of the Company shall not be required
to provide an assignment under clause (a) of this Section if (i)
such holder, acting reasonably, concludes that there is a likelihood
that the granting of such assignment on the terms of the relevant
assignment agreement would cause such holder to be liable to any
other Person or (ii) all Senior Indebtedness of the Company shall
not have been paid in full.
SECTION 2.17 PAYMENTS BY AFFILIATES
At any time when the provisions of Section 2.2(a), (b) or (c) or
Section 2.3(a) or (b) shall be applicable, the Company will not permit any
Affiliate to make any payment or distribution of assets for or on behalf of the
Company to the Trustee or to any Holder that the Company or any obligor or
guarantor with respect to the Subordinated Obligations would be prohibited from
making under any of such Sections (or the equivalent provisions with respect to
such obligor or guarantor), without the prior written consent of the Majority
Lenders (as defined in the Bank Credit Agreement) (it being understood that,
upon receipt of such consent, nothing in
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this Agreement shall be deemed to prevent, and such Affiliate shall be entitled
to make, any such payment).
ARTICLE 3
NOTICE
SECTION 3.1 NOTICES
Any notice or other communication required or permitted to be given
or made hereunder, shall be in writing or by telecopy and shall not be effective
until received and shall be addressed as follows:
if to the Company, addressed to it at:
One Mount Pleasant Road
Toronto, Ontario
M4Y 2Y5
Attention: Chief Financial Officer
Telecopy: (416) 935-7953
Copy to:
Rogers Communications Inc.
10th Floor
333 Bloor Street East
Toronto, Ontario
M4W 1G9
Attention: Chief Financial Officer
Telecopy: (416) 935-3557
if to the Trustee, addressed to it at:
4 New York Plaza
15th Floor
New York, New York 10004
Attention: Institution Trust Services
Telecopy: (212) 623-6166
if to the Agent, addressed to it at:
Corporate Banking - Communications,
Media & Technology
62nd Floor, 40 King Street West
- 15 -
Toronto, Ontario
M5W 2X6
Attention: Managing Director
Telecopy: (416) 866-2010
if to the Deed Trustee, addressed to it at:
c/o CIBC Mellon Trust Company
320 Bay Street
P.O. Box 1
Toronto, Ontario
M5H 4A6
Attention: Manager, Corporate Trust Department
Telecopy: (416) 643-5570
Any such notice or demand, if telecopied before 4:30 p.m. on a
Business Day shall be deemed to have been received on that day, and after 4:30
p.m. on a Business Day, shall be deemed to have been received on the Business
Day next following the date of transmission.
ARTICLE 4
MISCELLANEOUS
SECTION 4.1 AMENDMENT, ETC.
No amendment, modification or waiver of any provision of this
Agreement or consent to any departure from any provision of this Agreement will
in any event be effective unless it is signed by the Company, the Trustee and
the Agent.
SECTION 4.2 SUCCESSOR TRUSTEE
If the Trustee for the time being under the Indenture shall resign
or be removed and a successor trustee thereafter shall be appointed in
accordance with the Indenture, then upon such successor trustee agreeing in
writing to be bound by the provisions of this Agreement as the Trustee
hereunder, all references herein to "Trustee" in this Agreement shall be deemed
to be references to such successor trustee as and from such date and such
successor trustee shall receive and become vested with all the rights, powers,
privileges and duties of the retiring or removed Trustee and the retiring or
removed Trustee shall be discharged from its further duties and obligations as
Trustee under this Agreement.
SECTION 4.3 APPLICABLE LAW AND SUBMISSION TO JURISDICTION
This Agreement shall be conclusively deemed to be a contract made in
the Province of Ontario and shall for all purposes be governed by and
interpreted in accordance with the laws of the Province of Ontario and federal
laws of Canada applicable therein in effect from time to time without prejudice
to or limitation of any other rights or remedies available under the
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laws of any jurisdiction where property or assets of the Company may be found.
Each of the parties irrevocably submits to the non-exclusive jurisdiction of the
courts of the Province of Ontario.
SECTION 4.4 ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the parties
with respect to the subject matter and supersedes all prior negotiations,
undertakings, representations and understandings.
SECTION 4.5 SEVERABILITY
Any provision of this Agreement which is prohibited or unenforceable
in any jurisdiction shall not invalidate or render unenforceable the remaining
provisions, and any such prohibition or unenforceability in any jurisdiction
shall not invalidate or render unenforceable such provision in any other
jurisdiction.
SECTION 4.6 SUCCESSORS AND ASSIGNEES
This Agreement shall be binding upon and enure to the benefit of the
parties hereto and their respective successors and permitted assignees.
SECTION 4.7 COUNTERPARTS
This Agreement and the acceptance thereof may be executed on any
number of separate counterparts and all said counterparts taken together shall
be deemed to constitute one and the same instrument.
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IN WITNESS WHEREOF the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized, on this
30th day of November, 2004.
ROGERS WIRELESS INC.
By: /s/ Alan D. Horn
----------------------------------
Name: Alan D. Horn
Title: Vice-President
By: /s/ M. Lorraine Daly
----------------------------------
Name: M. Lorraine Daly
Title: Vice-President, Treasurer
NATIONAL TRUST COMPANY,
as Deed Trustee
By: /s/ Geralyn Krowles
----------------------------------
Name: Geralyn Krowles
Title: Authorized Signatory
By: /s/ Lennox August
----------------------------------
Name: Lennox August
Title: Authorized Signatory
JPMORGAN CHASE BANK, N.A.,
as Trustee
By: /s/ Rosa Ciaccia
----------------------------------
Name: Rosa Ciaccia
Title: Trust Officer
By: /s/ Kathleen Perry
----------------------------------
Name: Kathleen Perry
Title: Vice President
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THE BANK OF NOVA SCOTIA,
as Agent, with the consent of the
Majority Lenders (as defined in the
Bank Credit Agreement)
By: /s/ Steven J. Torrens
----------------------------------
Name: Steven J. Torrens
Title: Managing Director
By: /s/ Derek Orange
----------------------------------
Name: Derek Orange
Title: Associate Director