Exhibit 4.12
THIS AMENDED GUARANTEE AGREEMENT made as of December 31, 2003.
B E T W E E N:
XXXXXX CABLE COMMUNICATIONS INC., incorporated and
subsisting under the laws of Ontario
(hereinafter called the "GUARANTOR")
OF THE FIRST PART
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NATIONAL TRUST COMPANY, a trust company incorporated
under the laws of the Province of Ontario and duly
licenced under the laws of the Province of Ontario
(hereinafter called the "TRUSTEE")
OF THE SECOND PART
WHEREAS Rogers Cablesystems Limited (now Xxxxxx Cable Inc.) (hereinafter
the "Company") has authorized the creation and securing of certain bonds
(hereinafter called the "Bonds") under a restated deed of trust and mortgage
made as of January 31, 1995 among the Company and the Trustee, as supplemented
by the First Supplemental Deed of Trust and Mortgage dated as of December 31,
2003 among the Company, the Trustee and the Guarantor, which together with all
deeds and instruments supplemental or ancillary thereto is hereinafter called
the "Trust Deed";
AND WHEREAS the aggregate principal amount of the Senior Secured Bonds and
the Deferred Payment Bonds which may be issued under and secured by the Trust
Deed is unlimited;
AND WHEREAS the Senior Secured Bonds issued under the Trust Deed are to be
secured equally and rateably without preference or priority and the Deferred
Payment Bonds shall in all respect rank subordinate to the Senior Secured Bonds;
AND WHEREAS the Guarantor is a Designated Subsidiary and entered into a
guarantee agreement with the Trustee dated December 17, 2003 (the "Original
Guarantee") pursuant to which the Guarantor unconditionally guaranteed the due
and punctual payment by the Company of the principal of and redemption, (if
any), interest on, and all other amounts owing under Bonds issued by the Company
under the Trust Deed;
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AND WHEREAS pursuant to the First Supplemental Deed of Trust and
Mortgage the Guarantor became a co-obligor jointly and severally liable for the
obligations of the Company under the Trust Deed;
AND WHEREAS the obligations of the Guarantor hereunder are in addition
to, and not in substitution for, its obligations under the Trust Deed and, as a
result, the Guarantor and the Trustee have agreed to amend the Original
Guarantee to reflect this;
AND WHEREAS the Guarantor, under the laws relating thereto, is duly
authorized to enter into this agreement and all things necessary have been done
and performed to make this agreement a legal, valid and binding obligation of
the Guarantor;
AND WHEREAS the foregoing recitals are made as representations and
statements of fact by the Guarantor and not by the Trustee;
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the
premises and the sum of one dollar now paid by the Trustee to the Guarantor,
the receipt and sufficiency of which are hereby acknowledged, it is agreed as
follows:
SECTION 1. - INTERPRETATION
1. Unless there is something in the subject matter or context inconsistent
therewith, words and expressions which are defined in the Trust Deed shall have
the same meaning, mutatis mutandis, when used herein.
2. Wherever throughout this agreement the Guarantor or the Company or the
Trustee is mentioned or referred to, such mention or reference shall extend to
the successors and assigns of the Guarantor or the Company or the Trustee, as
the case may be.
3. This agreement is entered into pursuant to the Trust Deed and all
applicable provisions thereof shall be deemed to be incorporated herein,
mutatis mutandis.
4. The parties agree that this agreement supersedes and replaces the Original
Guarantee.
SECTION 2. - GUARANTEE
1. The Guarantor unconditionally guarantees and covenants with the Trustee
that the Company (hereinafter the Company is sometimes referred to as the
"Debtor") will duly and punctually pay or cause to be paid to the Bondholders
the principal amount of the Bonds, interest thereon and all other amounts owing
thereunder, as may become payable in accordance with the provisions of the
Trust Deed at the dates, in the currencies and in the manner mentioned in the
Trust Deed and in such Bonds and will pay all other moneys from time to time
owing under the Trust Deed in accordance with the terms thereof and will
perform and carry out all other obligations of the Debtor therein contained.
The Guarantor and the Trustee acknowledge and agree that the obligations of the
Guarantor under this Guarantee are in addition to the obligations the Guarantor
has assumed directly under the Trust Deed including, without limitation, with
respect to the payment of the Bonds.
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2. The obligations of the Guarantor hereunder are and shall be absolute and
unconditional and any moneys or amounts expressed to be owing or payable by the
Guarantor hereunder which may not be recoverable from the Guarantor on the
basis of a guarantee shall be recoverable from the Guarantor as a primary
obligor and principal debtor in respect thereof.
3. The Guarantor hereby acknowledges that it is a party to the Trust Deed, it
has received communication of the terms of the Trust Deed and of all the
provisions therein contained and consents and approves of the same and this
Guarantee and the agreements of the Guarantor herein contained and provided for
shall take effect and shall be and are hereby declared to be binding upon the
Guarantor notwithstanding any defect in or omission from the Trust Deed or any
instrument comprising the same or any non-registration or non-filing or defect
of registration or filing or by reason of any defect in the issuance of any Bond
or by reason of the failure of the security for the Bonds intended to be created
by the Trust Deed or pursuant thereto.
4. It is hereby agreed and declared that the obligation of the Guarantor
hereunder shall extend (without any further act or formality) to all Bonds
which may from time to time be issued and outstanding under the Trust Deed,
whether heretofore or hereafter issued.
5. The obligation of the Guarantor thereunder shall be a continuing
obligation and a fresh cause of action hereunder shall be deemed to arise in
respect of each default by the Debtor. In the event of such a default, the
Trustee or any Bondholder as permitted hereunder, as the case may be, shall
have the right to proceed first and directly against the Guarantor without
proceeding against the Debtor or either of them, as the case may be, or any
other Person or entity or exhausting any other remedies which it or they may
have, and without resorting to any security held by it or them. The Guarantor
agrees with the Trustee that it will from time to time deliver to the Trustee
suitable acknowledgements of its continued liability hereunder and under the
Guarantee Security to which it is a party and any other instrument or
instruments in such form as Counsel may advise and as will prevent any action
brought against it in respect of any default hereunder or under such Guarantee
Security or the covenants therein contained being barred by an statute of
limitations now or hereafter in force in the Province of Ontario or elsewhere,
and in the event of the failure of the Guarantor so to do, it hereby
irrevocably appoints the Trustee the attorney and agent of the Guarantor to
make, execute and deliver such written acknowledgement or acknowledgements or
other instruments as may from time to time become necessary or advisable, in
the judgment of the Trustee on the advice of Counsel, to fully maintain and
keep in force the liability of the Guarantor hereunder and under such
Guarantee Security.
6. The Guarantor agrees that if at any time any part of any payment guaranteed
hereunder received by the Trustee or the Bondholders is or must be rescinded or
returned to the Debtor, for any reason whatsoever (including without limitation,
the insolvency, bankruptcy or reorganization of the Debtor), the guarantee
constituted by this agreement shall be reinstated with respect to such payment
so rescinded or returned as though such payment had never been received by the
Trustee or the Bondholders. If demand for, or acceleration of the time for,
payment by the Debtor of any obligation guaranteed hereunder is stayed upon the
insolvency, bankruptcy or reorganization of the Debtor all such indebtedness
otherwise subject to demand for payment or acceleration shall nonetheless by
payable be the Guarantor as provided herein.
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SECTION 3. - DEFAULT AND ENFORCEMENT
1. If the Debtor shall make default in payment of the principal of the Bonds
or in the payment of any interest or any other amount that has become payable
in accordance with the provisions of the Trust Deed or any part thereof as and
when the same becomes due and payable, then the Guarantor shall, so often as
any such default happens, forthwith on demand by the Trustee pay to the Trustee
for the benefit of each and every Bondholder in respect of which there shall be
such default the principal, interest and all other amounts due under the Bonds
and shall also pay to the Trustee all other moneys owing under the Trust Deed
as aforesaid.
2. If the Debtor shall make default as aforesaid and the Guarantor shall fail
forthwith on demand to pay as aforesaid, then and so often as any such default
and failure shall happen, the Trustee shall have the right in its discretion to
proceed in its name as Trustee hereunder in the enforcement of this agreement
and in the enforcement of the Guarantee Security to which the Guarantor is a
party by any remedy provided by law, whether by legal proceedings or otherwise,
and to recover from the Guarantor or out of the Mortgaged Property under the
Guarantee Security to which the Guarantor is a party such sums as the Guarantor
may be liable to pay hereunder and thereunder, and shall be obliged so to
proceed and recover if so requested in writing by any Bondholder, and any and
all sums so recovered by the Trustee shall be dealt with by the Trustee in the
manner provided by the Trust Deed. Without limitation of the foregoing
provisions, the Trustee shall have the same rights of enforcement (by way of
entry, appointment of a receiver or receiver and manager, sale, legal
proceedings or otherwise) against the Mortgaged Property under the Guarantee
Security to which the Guarantor is a party as by the Trust Deed are afforded
the Trustee against the Mortgaged Property thereunder; and the Trustee may
proceed to enforce such rights or from time to time any thereof against the
Mortgaged Property under the Guarantee Security to which the Guarantor is a
party or any part thereof, prior to, contemporaneously with or after any such
enforcement against the Mortgaged Property under the Trust Deed or any other
guarantee; and the Guarantor hereby appoints the Trustee to be the attorney of
the Guarantor to the like extent and for the like purposes as the Trustee is
appointed to be the attorney of the Company by Section 6.18 of the Trust Deed.
3. No Person dealing with the Trustee or any receiver appointed pursuant
hereto or any agents thereof shall be concerned to enquire whether the Lien
Hereof has become enforceable or whether the powers which the Trustee is
purporting to exercise have become exercisable, or whether any moneys remain
due upon the Guarantee Security or as to the necessity or expediency of the
stipulations and conditions subject to which any sale shall be made or
otherwise as to the propriety or regularity of any sale or of any other dealing
by the Trustee with the Mortgage Property or any part thereof, or to see to the
application of any moneys paid to the Trustee and, in the absence of fraud on
the part of such Person, such dealing shall be deemed so far as regards the
safety and protection of such Person, to be within the powers hereby conferred
and to be valid and effective accordingly.
4. No holder of any Bond shall have the right to institute any suit, action
or proceeding against the Guarantor for any default hereunder except in the
manner and subject to the conditions set forth in Sections 6.11 and 9.05 of the
Trust Deed, it being understood and intended that no one or more Bondholders
shall have any right in any manner whatsoever to enforce any right hereunder or
under the Guarantee Security to which the Guarantor is a party or to affect,
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disturb or prejudice the security created thereby or pursuant thereto by his or
their action except as aforesaid and that all powers and trusts hereunder and
thereunder shall be exercised and all proceedings at law or in equity shall be
instituted, had and maintained by the Trustee, except only as aforesaid and in
any event for the benefit of all Bondholders as provided in the Trust Deed.
5. The Guarantor shall not be deemed to be in default hereunder if the
default of the Debtor in respect of which the Guarantor would otherwise be or
become liable hereunder shall have been waived or directed to be waived
pursuant to the relevant provisions of the Trust Deed.
6. In the event of any payment by or recovery from the Guarantor under the
provisions hereof, the rights of the Guarantor shall in respect of such payment
rank subsequent to and not pari passu with the rights of the Bondholders and in
the event of the sale of the Mortgaged Property under the Trust Deed or other
realization of the security for the Bonds or enforcement of the trusts of the
Trustee, the Guarantor shall not be entitled to rank for payment against such
Mortgaged Property in competition with the Bondholders. Until all Bondholders
shall have received full payment of the principal amount of the Bonds, such
interest thereon as has become payable together with all other amounts that may
be due in connection with the Bonds or the Trust Deed, the Guarantor shall not
have any right to enforce the trusts of the Trust Deed or any security created
thereby or pursuant thereto.
SECTION 4. - RELEASE AND DISCHARGE
1. The obligation and the liability of the Guarantor shall not be released,
discharged or in any way affected by any release, discharge, loss or alteration
in or dealing with the Mortgaged Property under the Trust Deed or any Guarantee
Security or any part thereof or anything done, suffered or permitted by the
Trustee in relation to the said Mortgaged Property; or by time being given to
the Company or any other guarantor by the Trustee or by the Bondholders or any
of them; or by any change, alteration or modification of the Trust Deed; or by
any compromise, arrangement or plan of re-organization affecting the Company or
any other guarantor or the security under the Trust Deed; or by the release
pursuant to any provision hereof or of the Trust Deed, or of any other
guarantor or of any other person liable directly or indirectly as surety or
otherwise; or by the release, discharge, loss or alteration in or any dealing
with the security or any part thereof relating to the Bonds; or by any other
act or proceeding in relation to the Trust Deed or this agreement or any
Guarantee Security or any other guarantee or debenture collateral thereto or
any security created thereby pursuant to which the Guarantor might otherwise be
released or exonerated; without limiting the generality of the foregoing, the
Guarantor declares that, without the necessity of any reservation of rights
against the Guarantor and without notice to or further assent from the
Guarantor, the provisions of the Trust Deed and any Bonds issued thereunder may
in whole or in part be renewed, extended, rearranged, modified, accelerated,
compromised or released by the Trustee or the Bondholders (or any of them) and
the security constituted by the Trust Deed or any Guarantee Security or
otherwise may be sold, exchanged or realized.
2. Notwithstanding anything herein contained, the obligations of the Company,
the Guarantor or any other surety may be released, modified or otherwise dealt
with pursuant to any provision of the Trust Deed.
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3. It is understood and agreed that simultaneously with the execution and
delivery hereof, the Guarantor is executing and delivering its Guarantee
Security, in an amended and restated form, that such Guarantee Security shall be
and it is hereby assigned to, deposited with and pledged to the Trustee to be
held by it pursuant to the provisions hereof and of the Trust Deed as a general
and continuing collateral security for payment and performance of the
Guarantor's obligations hereunder and that upon the Debtor becoming entitled to
a discharge of the Trust Deed, then this agreement and such Guarantee Security
and the estate and rights hereby and thereby granted shall cease and become
utterly null and void and the undertaking, property and assets mortgaged and
charged thereby shall revert to an revest in the Guarantor without any release,
acquaintance, reconveyance, re-entry or any act or formality whatsoever; and
thereupon the Trustee shall, at the request and at the expense of the Guarantor,
execute and deliver to the Guarantor such deeds or other instruments as shall be
requisite to evidence the satisfaction and discharge of this agreement and of
the security created by such Guarantee Security, to release or reconvey the
undertaking, property and assets mortgaged or charged thereby freed and
discharged from the trusts and provisions herein and therein contained and to
release the Guarantor from its covenants herein contained.
4. The Guarantee Security to which the Guarantor is a party shall be and it
is hereby assigned, deposited with and pledged to the Trustee to be held by it
pursuant to the provisions hereof as a general and continuing collateral
security for payment and performance by the Guarantor hereunder.
5. Upon any demand hereunder by the Trustee, the Trustee may at any time
realize upon the Guarantee Security to which the Guarantor is a party by sale,
transfer or delivery, or exercise and enforce all rights and remedies of a
holder of such Guarantee Security, including, without limitation, making demand
under such Guarantee Security, as if the Trustee were absolute owner thereof,
without notice to or control by the Guarantor, except to the extent required by
law, and any such remedy may be exercised separately or in combination 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 provided further that any such sale, transfer or
delivery shall be on terms whereby the Person acquiring such Guarantee Security
takes the same subject to the provisions hereof.
6. The proceeds of the Guarantee Security to which the Guarantor is a party
including any distributions in respect thereof shall be applied by the Trustee
on account of the Guarantor's obligations hereunder without prejudice to any
claim upon the Guarantor for any deficiency.
7. The provisions respecting Bondholders' Resolutions and the powers of
Bondholders exercisable thereby set forth in Article 9 of and elsewhere in the
Trust Deed shall be deemed to be incorporated in and to form part of this
agreement, mutatis mutandis.
SECTION 5. - APPLICATION OF CERTAIN PROVISIONS OF THE TRUST DEED
The mortgages, assignments, pledges and charges created by the Guarantee
Security to which the Guarantor is a party are intended to take effect so far as
possible as if the undertaking, property and assets of the Guarantor had become
part of the Mortgaged Property under the Trust Deed and the provisions of the
Trust Deed relating to the Mortgaged Property
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thereunder shall be applicable mutatis mutandis to the subject matter of the
mortgages, pledges and charges created by such Guarantee Security and, without
limiting the generality of the foregoing:
(a) the Guarantor covenants with the Trustee to observe and perform
the like obligations with respect to its undertaking, property
and assets as the Company has covenanted to observe and perform
with respect to the Mortgaged Property in Sections 3.07, 5.02,
5.03, 5.04, 5.05, 5.06 and 5.08 of the Trust Deed;
(b) the provisions of Article 4 of the Trust Deed as to the
possession, use and release of the Mortgaged Property and the
disposition of moneys arising therefrom shall be applicable to
the property and assets of the Guarantor mortgaged, assigned,
pledged or charged by the Guarantee Security to which the
Guarantor is a party;
(c) the provisions of Section 6.16 of the Trust Deed shall be
applicable, mutatis mutandis, for the protection of Persons
dealing with the Trustee in respect of the Mortgaged Property
under the Guarantee Security to which the Guarantor is a party;
(d) the provisions of Section 11.02 of the Trust Deed shall be
applicable, mutatis mutandis, to communications between the
Guarantor, the Bondholders and the Trustee and their respective
addresses of record; and
(e) the provisions of Section 11.05 of the Trust Deed shall be
applicable, mutatis mutandis, to the rights, remedies and powers
of the Trustee and any provisions hereof or of the Guarantee
Security to which the Guarantor is a party that may be contrary
to applicable law.
SECTION 6. - THE TRUSTEE
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1. This agreement and the Guarantee Security to which the Guarantor is a party
are made in favour of the Trustee in its capacity as trustee under the Trust
Deed. Accordingly, in the event of a new trustee being appointed under the Trust
Deed, such new trustee shall thereupon become and be the trustee hereunder, but
nevertheless, the Trustee shall forthwith assign, transfer, make over to the new
trustee hereunder this agreement and such Guarantee Security and all security
created thereby or by any instrument supplemental thereto or in implementation
thereof. All provisions of the Trust Deed for the protection of the Trustee or
for facilitating the administration of the trusts or otherwise relating to the
Trustee shall apply mutatis mutandis to this agreement and such Guarantee
Security and the Trustee's duties hereunder.
2. The Trustee hereby accepts the trusts hereof and agrees to carry out and
discharge the same unless and until a new trustee hereunder shall be appointed
as hereinbefore set forth.
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SECTION 7. - GOVERNING LAW
This agreement and the rights of the parties hereto shall be governed
in all respects by and construed in accordance with the laws of the Province of
Ontario and the laws of Canada applicable therein, and shall be treated in all
respects as an Ontario contact.
SECTION 8. - NO SET-OFF
Each payment to be made by the Guarantor hereunder in respect of its
obligations hereunder shall be payable in the currency or currencies in which
such obligations are denominated, and shall be made without set-off,
counterclaim, reduction or diminution of any kind or nature.
SECTION 9. - EXPENSES
The Guarantor agrees to pay to the Trustee forthwith upon demand all
costs, charges and expenses, including all legal fees, incurred by the Trustee
in connection with the recovery or enforcement of payment of any moneys owing
hereunder, whether by realization or otherwise. All such sums together with
interest thereon at the rate of interest specified in Section 5.08 of the
Trust Deed shall be added to the indebtedness secured by this agreement and
shall also be secured hereby.
SECTION 10. - WITHHOLDING TAXES
1. All payments to be made directly or indirectly under or with respect to
this agreement shall be made free and clear of and without withholding or
deduction of, or on account of, any present or future tax, duty or charge of
whatever nature 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 withholding or
deduction of such Taxes is required by applicable law. In the event that any
such withholding or deduction of Taxes from amounts to be paid with respect to
this agreement (an "Affected Amount") is required by applicable law, the
Guarantor:
(a) shall pay or cause to be paid such additional amounts
("Additional Amounts") as may be necessary in order that the net
amount received directly or indirectly by the beneficial
recipient of an Affected Amount (an "Affected Recipient")
(including Additional Amounts) after such withholding or
deduction (including withholding or deduction applicable to
Additional Amounts paid pursuant to this Section 10), shall equal
the amount which would have been received by the Affected
Recipient in the absence of such withholding or deduction,
provided that the Guarantor shall not be obligated to pay any
portion of any such Additional Amounts to any Affected Recipient
(an "Excluded Recipient"):
(j) with which the Guarantor or the Company does not deal at
arm's length (within the remaining of the Income Tax Act
(Canada)) at the time of making such payment;
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(ii) which is subject to such Taxes by reason of the incorporation,
organization or presence of the Affected Recipient in a
jurisdiction (other than a jurisdiction that is or is in the
United States of America) which incorporation, organization or
presence resulted in such Taxes or which is subject to Taxes
by reason of the Affected Recipient being connected with
Canada or any province or territory thereof, otherwise than by
the mere holding of property that entitles such Affected
Recipient to receive the Affected Amount (including without
restriction the holding directly or indirectly of the Bonds in
circumstances contemplated by this agreement and the holding
of any interest in property including this agreement and the
Bonds that entitles the Affected Recipient to receive payments
hereunder) or the mere receipt of or entitlement to receive
any payment made pursuant to this agreement or the Bonds;
(b) shall make or cause to be made such withholding or deduction; and
(c) forthwith shall pay or cause to be paid immediately the full amount
withheld or deducted to the relevant taxation authority in
accordance with applicable law and shall obtain therefrom a receipt
for such payment; provided, however, that if the Affected Recipient
shall obtain any tax benefit as a result of the payment of any tax,
duty or charge by the Guarantor pursuant to this Section 10, the
Affected Recipient shall give a notice in writing to the Guarantor
with a copy to the Company specifying the amount of the tax benefit
realized and the Guarantor shall be entitled to deduct such amount
from any amount which is payable by the Guarantor to the Affected
Recipient under this agreement and, if no further amount is payable
by the Guarantor to the Affected Recipient under this agreement, the
amount of such tax benefit shall be refunded by the Affected
Recipient to the Guarantor; provided, further, however, that nothing
contained herein shall interfere with the right of an Affected
Recipient to arrange its tax affairs (which it shall not be
obligated to disclose to any person) in whatever manner it thinks
fit and in particular no Affected Recipient shall be under any
obligation to claim credit, relief, remission or repayment from or
against or in respect of its profits or income or any tax liability
in respect of any amount of tax or other charge referred to in this
Section 10 in priority to any other claims, relief, credits or
reductions available to it.
2. The Guarantor indemnifies and holds harmless each Affected Recipient and
each holder of a Bond or of an interest directly or indirectly in a Bond (other
than an Excluded Recipient) for and against the full amount of any Taxes so
levied or imposed as a result of payments made under or with respect to this
agreement (including any interest and penalties and all related expenses)
referred to in subsection 1 above (including, without limitation, any such
Taxes imposed on amounts payable under this Section 10, but excluding any such
Taxes on the net income of such Recipient). Payment under this indemnity shall
be made within thirty (30) days
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from the date any such Affected Recipient makes written demand therefor and
upon presentation to the Guarantor (with a copy to the Company) of a notice in
writing as the amount payable under this indemnity and the amounts to which
this indemnity relates, which notice shall be conclusive evidence, absent
manifest error, of the amount due under this indemnity. The obligation of the
Guarantor under this subsection 2 shall survive the payment of any amounts
under this agreement or pursuant to the Bonds and the termination of this
agreement, the Bonds and the Trust Deed.
SECTION 11. - MERGER
This agreement shall not operate by way of merger of any of the obligations
of the Guarantor under any other agreement, including for greater certainty, the
Trust Deed, and no judgement recovered by the Trustee shall operate by way of
merger of or in any way affect the Guarantee Security to which the Guarantor is
a party which is in addition to and not in substitution for any other security
now or hereafter held by the Trustee.
IN WITNESS WHEREOF the parties hereto have executed this agreement.
XXXXXX CABLE COMMUNICATIONS INC.
Per: /s/ X. X. Xxxx
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M. Xxxxxxxx Xxxx
Vice-President, Treasurer
Per: /s/ Xxxx Xxxx
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Xxxx X. Xxxx
Vice-President
NATIONAL TRUST COMPANY
Per: /s/ G. Krowles
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XXXXXXX XXXXXXX
AUTHORIZED SIGNATORY
Per: /s/ Xxxxxxxxx Xxxxxx
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XXXXXXXXX XXXXXX
Authorized Signatory
