EXHIBIT 10.11
TIME WARNER CABLE INC.
000 XXXXXX XXXXX
XXXXXXXX, XX 00000
June 1, 2005
Comcast Corporation
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxx
TWE Holdings I Trust
TWE Holdings II Trust
c/o Xxxxx X. Holiday
000 Xxxx Xxxxxx
0xx Xxxxx
Xxxxxxxxxx, XX 00000
Ladies and Gentlemen:
Reference is made to that certain Tolling and Optional Redemption
Agreement, dated as of September 24, 2004, as amended from time to time (the
"TOLLING AGREEMENT"), by and among Comcast Cable Communications Holdings, Inc.
("COMCAST CABLE"), a Delaware corporation, MOC Holdco II, Inc., a Delaware
corporation, TWE Holdings II Trust, a Delaware statutory trust, Cable Holdco
Inc., a Delaware corporation, TWE Holding I LLC, a Delaware limited liability
company, Time Warner Cable Inc., a Delaware corporation ("TWC"), and the other
parties named therein. Capitalized terms used herein and not otherwise defined
shall have the respective meanings assigned to them in the Tolling Agreement.
Reference is made to that certain Redemption Agreement, dated as of
April 20, 2005, as amended from time to time (the "TWC REDEMPTION AGREEMENT"),
by and among Comcast Cable, TWC and the other parties named therein.
Reference is made to that certain Redemption Agreement, dated as of
April 20, 2005, as amended from time to time (the "TWE REDEMPTION AGREEMENT"),
by and among Comcast Cable, Time Warner Entertainment Company, L.P., a Delaware
limited partnership, and the other parties named therein.
Reference is made to that certain Exchange Agreement, dated as of
April 20, 2005, as amended from time to time (the "EXCHANGE AGREEMENT"), by and
among
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Comcast Corporation ("COMCAST"), a Pennsylvania corporation, TWC and the other
parties named therein.
(A) The relevant parties hereto agree (on behalf of themselves and
their respective Affiliates) that the Tolling Agreement is hereby amended as
follows:
(i) The definition of the term "Permitted Lien" in Section 1.1 of
the Tolling Agreement shall be amended by replacing the reference therein to
"Schedule 1.1(c)" with a reference to "Schedule 1.1(e)".
(ii) The following definition shall be added in the appropriate
alphabetical order in Section 1.1 of the Tolling Agreement:
""Specified Division" means the division of Timer Warner Cable
specified on Schedule 1.1(f)."
(iii) Section 7.3(a) of the Tolling Agreement shall be deleted and
replaced with the following:
"With respect to the Transferred Systems numbered (1), (5), (6) and
(7) on Schedule A, by no later than 45 days after the earlier of (i)
September 30, 2005 and (ii) termination of the TWC Redemption Agreement
prior to the Closing (as defined in the TWC Redemption Agreement)
occurring, Comcast Trust, Comcast Subsidiary and Time Warner Cable shall
provide each other with all necessary documentation to allow filing of FCC
Forms 394 with respect to such Transferred Systems Franchises. Comcast
Trust, Comcast Subsidiary and Time Warner Cable shall use commercially
reasonable efforts to cooperate with one another and file with the
applicable Governmental Authority FCC Forms 394 for each of the
Transferred System Franchises with respect to the Transferred Systems
numbered (1), (5), (6) and (7) on Schedule A which requires the consent of
such Governmental Authority in connection with the transactions
contemplated by this Agreement, no later than 60 days after the earlier of
(i) September 30, 2005 and (ii) termination of the TWC Redemption
Agreement prior to the Closing (as defined in the TWC Redemption
Agreement) occurring. In the event that on or prior to September 30, 2005
the condition set forth in Section 8.1(l) shall not have been satisfied,
Time Warner Cable, Comcast Trust and Comcast Subsidiary shall discuss in
good faith whether the filing of FCC Forms 394 with respect to the
Transferred Systems numbered (1), (5), (6) and (7) on Schedule A, as of
the time period contemplated by the preceding sentence, is advisable and
whether such time period should be extended. With respect to the
Transferred Systems numbered (2), (3) and (4) on Schedule A, Comcast
Trust, Comcast Subsidiary and Time Warner Cable agree that the requirement
to make FCC Form 394 filings to be made with respect to such Transferred
Systems shall be satisfied by the filings made with respect to such
Transferred Systems pursuant to Section 7.3(a) of the TWE Redemption
Agreement and that such filings shall appropriately reflect the
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possibility of such Transferred Systems being transferred pursuant to this
Agreement."
(iv) The 30 day period referred to in the first sentence of Section
7.6 of the Tolling Agreement shall be extended to 37 days.
(v) The words "(or, with respect to the Designated Systems, the
Amendment Date)" shall be added after the words "the date hereof" in Sections
3.1(a), 3.1(c), 3.1(l)(i), 3.1(l)(ii), 3.1(l)(iv), 7,1(d) and 7.22.
(vi) TWE Holding I LLC, a Delaware limited liability company shall
added as a party to the Tolling Agreement, effective as of the Amendment Date
(as defined in the Tolling Agreement).
(vii) The words "TWC or TWC" in Section 6.11(a)(xii) shall be
replaced by the words "TWC or TWE".
(viii) The disclosure letter referenced in the second sentence of
Section 1.3 will be deemed to contain, as of the Amendment Date, the disclosure
attached as Exhibit 2.
(B) The relevant parties hereto agree (on behalf of themselves and
their respective Affiliates) that the TWC Redemption Agreement is hereby amended
as follows:
(i) The 30 day period referred to in the first sentence of Section
7.6 of the TWC Redemption shall be extended to 37 days.
(ii) The words "Issuer Securities (as defined in the Registration
Rights Agreement)" in Section 2.3(b)(ii) shall be replaced by "its Equity
Securities (as defined in the TWC Adelphia Agreement)".
(C) The relevant parties hereto agree (on behalf of themselves and
their respective Affiliates) that the TWE Redemption Agreement is hereby amended
as follows:
(i) The 30 day period referred to in the first sentence of Section
7.6 of the TWE Redemption shall be extended to 37 days.
(D) The relevant parties hereto agree that the Exchange Agreement is
hereby amended as follows:
(i) The 30 day period referred to in the first sentence of Section
6.5 of the Exchange Agreement shall be extended to 37 days.
(ii) Section 11.17 of the Exchange Agreement shall be restated in
its entirety to read as follows:
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"Section 11.17 Additional Parties. Immediately following the
Adelphia Closing and prior to the Closing, Comcast shall cause each
Transferred Joint Venture Entity that will be a Transferor (each a
"Transferred Joint Venture Party") to become a party to this Agreement.
Upon such joinder, but not before, each Transferred Joint Venture Party
shall be considered a "Comcast Transferor" and a "Comcast Party", and each
Transferred Joint Venture Entity shall be considered a "Comcast
Participant", "Comcast Group Member" and Affiliate of the other Comcast
Group Members, as relevant, in each case, for all purposes of this
Agreement. The parties hereto agree that none of Comcast or any of its
Affiliates shall have any Liability under this Agreement or any
Transaction Document with respect to any Transferred Joint Venture Entity
until such time as the Transferred Joint Venture Parties become parties to
this Agreement and, in such event, only with respect to events, conditions
or circumstances first arising thereafter. The parties agree to execute an
appropriate amendment to this Agreement adding the Transferred Joint
Venture Parties to this Agreement in accordance with the foregoing."
(iii) Notwithstanding any provision of the Exchange Agreement to the
contrary, the cable communications system serving the Town of Xxxxx, Vermont
(Vermont PSB) (the "XXXXX SYSTEM") and the cable communications system serving
the Town of Milan, New Hampshire (the "MILAN SYSTEM") shall be treated in the
Exchange Agreement in accordance with the principles set forth in Exhibit 1
hereto.
* * * * *
Any amendment of this letter agreement must be in writing. This
letter agreement may be executed in several counterparts, each of which shall
constitute an original and all of which, when taken together, shall constitute
one agreement. Each party hereto confirms that any facsimile copy of such
party's executed counterpart of this letter agreement (or its signature page
thereof) shall be deemed to be an executed original thereof.
THE VALIDITY, PERFORMANCE, AND ENFORCEMENT OF THIS LETTER AGREEMENT
SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO
THE PRINCIPLES OF CONFLICTS OF LAW OF SUCH STATE.
IN WITNESS WHEREOF, each of the undersigned has executed this letter
agreement as of the day and year first above written.
CABLE HOLDCO INC.
By: /s/ Satish Adige
---------------------------------------
Name: Satish Adige
Title: SVP, Investments
CABLE HOLDCO II INC.
By: /s/ Satish Adige
---------------------------------------
Name: Satish Adige
Title: SVP, Investments
CABLE HOLDCO III LLC
By: /s/ Satish Adige
-------------------------------------
Name: Satish Adige
Title: SVP, Investments
COMCAST CORPORATION
By: /s/ Xxxxxx X. Pick
---------------------------------------
Name: Xxxxxx X. Pick
Title: Senior Vive President
COMCAST CABLE
COMMUNICATIONS HOLDINGS, INC.
By: /s/ Xxxxxx X. Pick
---------------------------------------
Name: Xxxxxx X. Pick
Title: Senior Vive President
COMCAST OF GEORGIA, INC.
By: /s/ Xxxxxx X. Pick
---------------------------------------
Name: Xxxxxx X. Pick
Title: Senior Vive President
MOC HOLDCO I, LLC
By: /s/ Xxxxx X. XxXxx
---------------------------------------
Name: Xxxxx X. XxXxx
Title: President
MOC HOLDCO II, INC.
By: /s/ Xxxxx X. XxXxx
---------------------------------------
Name: Xxxxx X. XxXxx
Title: President
TCI HOLDINGS, INC.
By: /s/ Xxxxxx X. Pick
---------------------------------------
Name: Xxxxxx X. Pick
Title: Senior Vive President
TIME WARNER INC.
By: /s/ Xxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxx Xxxxxx
Title: SVP
TIME WARNER CABLE INC.
By: /s/ Satish Adige
--------------------------------------
Name: Satish Adige
Title: SVP, Investments
TIME WARNER NY CABLE LLC
By: /s/ Satish Adige
---------------------------------------
Name: Satish Adige
Title: SVP, Investments
TIME WARNER ENTERTAINMENT COMPANY, L.P.
By: /s/ Satish Adige
--------------------------------------
Name: Satish Adige
Title: SVP, Investments
TWE HOLDINGS I LLC
By: /s/ Satish Adige
---------------------------------------
Name: Satish Adige
Title: SVP, Investments
TWE HOLDINGS I TRUST
By: /s/ Xxxxx X. Holiday
---------------------------------------
Name: Xxxxx X. Holiday, solely in her
capacity as Operating Trustee
TWE HOLDINGS II TRUST
By: /s/ Xxxxx X. Holiday
--------------------------------------
Name: Xxxxx X. Holiday, solely in her
capacity as Operating Trustee
URBAN CABLE WORKS OF
PHILADELPHIA, L.P.,
By Time Warner Entertainment Company,
L.P., Manager
By: /s/ Satish Adige
---------------------------------------
Name: Satish Adige
Title: SVP, Investments
EXHIBIT 1
Capitalized terms used but not defined in this Exhibit 1 shall have the meanings
set forth in the Exchange Agreement.
- Except as set forth below, the Xxxxx System shall be deemed to be
part of the Group 1 Business and the Milan System shall be deemed to
be part of the Group 2 Business (in each case, as defined in the
TWC/Adelphia Purchase Agreement) for all purposes of the Exchange
Agreement.
- Notwithstanding the foregoing:
- For purposes of determining the Capital Expenditure Adjustment
Amount and the Subscriber Adjustment Amount in respect of
TWC/Adelphia Newco 3, the Xxxxx System shall be disregarded
and the Milan System shall be deemed to be part of the Group 1
Business held by TWC/Adelphia Newco 3 (provided that the
foregoing shall not apply for purposes of clause (ii)(B)(y) of
the definition of "Subscriber Adjustment Amount" in Section
1.1 of the Exchange Agreement).
- For purposes of determining the Net Liabilities Adjustment
Amount in respect of TWC/Adelphia Newco 3:
- If the Closing occurs on the same date as the Adelphia
Closing, the Xxxxx System shall be disregarded and the
Milan System shall be deemed to be part of the Group 1
Business held by TWC/Adelphia Newco 3; provided that if
the difference between the Net Liability Amount (as
defined below) for the Xxxxx System and the Net
Liability Amount for the Milan System is material
relative to each other, the parties shall adjust the
amount payable in respect of the Exchange of
TWC/Adelphia Newco 3 in order to equitably account for
such difference. "Net Liability Amount" means an amount
equal to the Current Assets minus the Total Liabilities
(in each case, as defined in the TWC/Adelphia Purchase
Agreement and as determined pursuant to Section 2.6 of
the TWC/Adelphia Purchase Agreement for purposes of
determining the Final Adjustment Amount (as defined
therein) thereunder) attributable to the Xxxxx System or
the Milan System, as applicable.
- If the Closing occurs on any date after the date of the
Adelphia Closing, the Net Liabilities Adjustment Amount
shall be determined in accordance with the terms of the
Exchange Agreement (i.e., to reflect that the Xxxxx
System is held by TWC/Adelphia Newco 3 and the Milan
System has been retained by the TWC Group).
- The parties will act in good faith in connection with all
matters relating to the adjustment amounts applicable to the
Xxxxx System and the Milan System under the Exchange Agreement
and the TWC/Adelphia Purchase Agreement.
- If an indemnification claim is made under the TWC/Adelphia
Purchase Agreement with respect to the Xxxxx System or the
Milan System, the parties will appropriately allocate any
limitations on recoveries resulting from any caps, deductibles
and thresholds.
