EXHIBIT 4.10
THIS AGREEMENT made as of the 30th day of November, 2004 AMONG
Rogers Cable Inc. (the "Company"), Rogers Cable Communications Inc. ("RCCI"),
JPMorgan Chase Bank, N.A. (formerly Chemical Bank) in its capacity as trustee
under the Subordinated Debt Indenture (as defined below) (the "Subordinated Debt
Trustee") and JPMorgan Chase Bank, N.A. in its capacity as trustee under the
2015 Note Indenture (as defined below) (the "2015 Note Trustee").
WITNESSES THAT WHEREAS:
A. Rogers 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 2015 Note Trustee entered into an indenture (the "2015
Note Indenture"), dated as of the date hereof, providing for the issuance
of the Company's U.S.$280,000,000 6.75% Senior (Secured) Second Priority
Notes due 2015 (the "2015 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 2015 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 2015 Note
Trustee, in its capacity as trustee on behalf of the holders of the 2015 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
-2-
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 2015 Notes and the 2015 Note Trustee,
as trustee on their behalf, under the 2015 Notes and the 2015 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 2015 Notes or the 2015 Note Trustee, as trustee on behalf
of the holders of the 2015 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 2015 Note Indenture and the 2015 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 2015 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 2015 Note Trustee, as trustee on behalf of the
holders of the 2015 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 2015 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 2015 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.
-3-
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.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
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 CABLE COMMUNICATIONS 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
JPMORGAN CHASE BANK, N.A. in its capacity
as the Subordinated Debt Trustee
By: /s/ Rosa Ciaccia
---------------------------------------
Name: Rosa Ciaccia
Title: Trust Officer
JPMORGAN CHASE BANK, N.A. in its capacity
as the 2015 Note Trustee
By: /s/ Rosa Ciaccia
---------------------------------------
Name: Rosa Ciaccia
Title: Trust Officer