EXHIBIT 4.5
THIS AGREEMENT made as of the 11th day of March, 2004 AMONG
Xxxxxx Cable Inc. (the "Company"), Xxxxxx Cable Communications Inc. ("RCCI"),
JPMorgan Chase Bank (formerly Chemical Bank) in its capacity as trustee under
the Subordinated Debt Indenture (as defined below) (the "Subordinated Debt
Trustee") and JPMorgan Chase Bank in its capacity as trustee under the 2004 Note
Indenture (as defined below) (the "2004 Note Trustee")
WITNESSES THAT WHEREAS:
X. Xxxxxx Cablesystems Limited (now the Company), certain affiliates of
the Company that were then Designated Subsidiaries (within the meaning
of the Deed of Trust (as defined below)) and the Subordinated Debt
Trustee, among others, entered into an indenture (the "Subordinated
Debt Indenture"), dated as of November 30, 1995, providing for the
issuance of the Company's 11% Senior Subordinated Guaranteed Debentures
due 2015 (the "Subordinated Securities"), which indenture has been
supplemented by a first supplemental indenture, dated as of December
31, 2003, among the Company, RCCI and certain affiliates of the Company
that were then Designated Subsidiaries (within the meaning of the Deed
of Trust (as defined below)) and the Subordinated Debt Trustee. "Deed
of Trust" means the restated deed of trust and mortgage, dated as of
January 31, 1995, between Rogers Cablesystems Limited (now the Company)
and National Trust Company, as trustee (the "Trustee"), as supplemented
by a first supplemental deed of trust and mortgage, dated as of
December 31, 2003, among the Company, RCCI and the Trustee.
B. The Company and the 2004 Note Trustee entered into an indenture (the
"2004 Note Indenture"), dated as of the date hereof, providing for the
issuance of the Company's 5.500% Senior (Secured) Second Priority Notes
due 2014 (the "2004 Notes").
C. Pursuant to section 1207 of the Subordinated Debt Indenture, the
Company has furnished an Officers' Certificate (as such term is defined
in the Subordinated Debt Indenture) to the Subordinated Debt Trustee
(i) stating that the 2004 Note Trustee is trustee on behalf of holders
of Senior Indebtedness (as such term is defined in the Subordinated
Debt Indenture) and (ii) directing the Subordinated Debt Trustee to
execute and deliver this Agreement.
NOW THEREFORE for good and valuable consideration (the receipt
and sufficiency of which are hereby acknowledged), the parties hereto agree as
follows:
1. SUBORDINATION
The Subordinated Debt Trustee, under the authority granted to
it in the Subordinated Debt Indenture and as trustee on behalf of the holders of
the Subordinated Securities, the Company and RCCI hereby covenant with the 2004
Note Trustee, in its capacity as trustee on behalf of the holders of the 2004
Notes, that (i) the indebtedness represented by the Subordinated Securities,
(ii) the payment of principal of (and premium, if any) and interest on each and
all of the Subordinated Securities, (iii) the obligations represented by each
and all of the Guarantees (as such term is defined in the Subordinated Debt
Indenture) delivered from time to time under the Subordinated Debt Indenture and
(iv) the payment of the Guaranteed Obligations
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(as such term is defined in such Guarantees) thereunder are all subordinate and
subject in right of payment to the prior payment in full of indebtedness,
premium (if any), interest and fees and expenses owing to the holders of the
2004 Notes and the 2004 Note Trustee, as trustee on their behalf, under the 2004
Notes and the 2004 Note Indenture, in the manner, to the same extent and with
the same effect as if the terms and provisions of the Subordinated Debt
Indenture and such Guarantees were set forth herein.
2. PAYMENT TO THE COMPANY IN CERTAIN CIRCUMSTANCES
In accordance with section 1205 of the Subordinated Debt
Indenture, if any holder of the 2004 Notes or the 2004 Note Trustee, as trustee
on behalf of the holders of the 2004 Notes, (each, a "Recipient") shall receive
any amount under this Agreement and, at the time of receipt, such Recipient is
not entitled to such amount under the terms of the 2004 Note Indenture and the
2004 Notes (whether by reason of maturity, acceleration or otherwise), then such
Recipient shall turn over such amount to the Company. Any such amount so
received by any Recipient which it is required to turn over to the Company
pursuant to this section 2 shall, in no circumstances, be considered to be a
payment on account of the Senior Indebtedness represented by the 2004 Notes.
3. BINDING EFFECT AND ENUREMENT
This Agreement shall be binding upon the successors of the
Company, RCCI and the Subordinated Debt Trustee, as trustee on behalf of the
holders of the Subordinated Securities, and shall enure to the benefit of the
successors and permitted assigns of the 2004 Note Trustee, as trustee on behalf
of the holders of the 2004 Notes.
4. NO WAIVER OR AMENDMENT
No provision of this Agreement may be waived or amended except
by an instrument in writing signed by the party hereto against which the
enforcement of any waiver or amendment is sought.
5. NO PERSONAL LIABILITY
Neither the Subordinated Debt Trustee nor the 2004 Note
Trustee makes any representation or warranty as to the validity, sufficiency or
effect of this Agreement or as to its authority to execute and deliver this
Agreement. Neither the Subordinated Debt Trustee nor the 2004 Note Trustee shall
have any personal responsibility or liability with respect to the covenant
contained in section 1 hereof.
6. COUNTERPARTS
This Agreement may be executed in counterparts, and all such
counterparts taken together shall be deemed to constitute one and the same
instrument.
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7. GOVERNING LAW
This Agreement shall be governed by, and construed in
accordance with, the laws of the Province of Ontario and the laws of Canada
applicable therein.
XXXXXX CABLE INC.
By: /s/ M. Xxxxxxxx Xxxx
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Name: M. Xxxxxxxx Xxxx
Title: Vice-President, Treasurer
By: /s/ Xxxx X. Xxxx
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Name: Xxxx X. Xxxx
Title: Vice-President
XXXXXX CABLE COMMUNICATIONS INC.
By: /s/ M. Xxxxxxxx Xxxx
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Name: M. Xxxxxxxx Xxxx
Title: Vice-President, Treasurer
By: /s/ Xxxx X. Xxxx
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Name: Xxxx X. Xxxx
Title: Vice-President
JPMORGAN CHASE BANK, in its capacity as
the Subordinated Debt Trustee
By: /s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
Title: Trust Officer
JPMORGAN CHASE BANK, in its capacity as
the 2004 Note Trustee
By: /s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
Title: Trust Officer
