EXHIBIT 4.5
SUBORDINATION AGREEMENT
THIS AGREEMENT made as of the 19th day of June, 2003 AMONG
Rogers Cable Inc. (the "Company"); Rogers Cablesystems Ontario Limited, Rogers
Ottawa Limited/Limitee, Rogers Cablesystems Georgian Bay Limited and Rogers
Cable Atlantic Inc. (collectively, the "Restricted Subsidiaries" and, each
individually, a "Restricted Subsidiary"); 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 2003 Note Indenture (as defined below) (the "2003
Note Trustee")
WITNESSES THAT WHEREAS:
A. The Company (formerly known as Rogers Cablesystems Limited), 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"). "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.
B. The Company and the 2003 Note Trustee entered into an indenture (the
"2003 Note Indenture"), dated as of the date hereof, providing for the
issuance of the Company's 6.25% Senior (Secured) Second Priority Notes
due 2013 (the "2003 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 2003 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 each of the Restricted Subsidiaries
hereby covenant with the 2003 Note Trustee, in its capacity as trustee on behalf
of the holders of the 2003 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
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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 (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 2003 Notes and the
2003 Note Trustee, as trustee on their behalf, under the 2003 Notes and the 2003
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 2003 Notes or the 2003 Note Trustee, as trustee
on behalf of the holders of the 2003 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 2003 Note Indenture and the
2003 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 2003 Notes.
3. BINDING EFFECT AND ENUREMENT
This Agreement shall be binding upon the successors of the
Company, each of the Restricted Subsidiaries 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 2003 Note
Trustee, as trustee on behalf of the holders of the 2003 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 2003 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 2003 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.
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ROGERS CABLE INC.
By: /s/ M. Lorraine Daly
-------------------------------------
Name: M. Lorraine Daly
Title: Vice-President, Treasurer
By: /s/ Alan D. Horn
-------------------------------------
Name: Alan D. Horn
Title: Vice-President
ROGERS CABLESYSTEMS ONTARIO LIMITED
By: /s/ M. Lorraine Daly
-------------------------------------
Name: M. Lorraine Daly
Title: Vice-President, Treasurer
By: /s/ Alan D. Horn
-------------------------------------
Name: Alan D. Horn
Title: Vice-President
ROGERS OTTAWA LIMITED/LIMITEE
By: /s/ M. Lorraine Daly
-------------------------------------
Name: M. Lorraine Daly
Title: Vice-President, Treasurer
By: /s/ Alan D. Horn
-------------------------------------
Name: Alan D. Horn
Title: Vice-President
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ROGERS CABLESYSTEMS GEORGIAN BAY LIMITED
By: /s/ M. Lorraine Daly
-------------------------------------
Name: M. Lorraine Daly
Title: Vice-President, Treasurer
By: /s/ Alan D. Horn
-------------------------------------
Name: Alan D. Horn
Title: Vice-President
ROGERS CABLE ATLANTIC INC.
By: /s/ M. Lorraine Daly
-------------------------------------
Name: M. Lorraine Daly
Title: Vice-President, Treasurer
By: /s/ Alan D. Horn
-------------------------------------
Name: Alan D. Horn
Title: Vice-President
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JPMORGAN CHASE BANK, in its capacity as the
Subordinated Debt Trustee
By: /s/ Natalia Moran
-------------------------------------
Name: Natalia Moran
Title: Vice President
JPMORGAN CHASE BANK, in its capacity as the
2003 Note Trustee
By: /s/ Natalia Moran
-------------------------------------
Name: Natalia Moran
Title: Vice President