EXHIBIT 99.10
EXECUTION COPY
PARENT AGREEMENT
PARENT AGREEMENT, dated as of April 20, 2005 (this "Agreement"), among
TIME WARNER CABLE INC., a Delaware corporation ("Parent"), TIME WARNER NY CABLE
LLC, a Delaware limited liability company and a subsidiary of Parent ("Buyer"),
and ADELPHIA COMMUNICATIONS CORPORATION, a Delaware corporation ("Seller").
Capitalized terms used but not defined herein shall have the respective meanings
assigned to such terms in that certain Asset Purchase Agreement, dated as of the
date hereof (as amended from time to time, the "Purchase Agreement"), between
Seller and Buyer.
WITNESSETH:
WHEREAS, simultaneously herewith, Buyer and Seller are entering into the
Purchase Agreement; and
WHEREAS, as an inducement to Seller to enter into the Purchase Agreement,
Parent and Buyer are entering into this Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements contained herein and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE I
GUARANTY
Section 1.1 Guaranty. Parent absolutely, unconditionally and
irrevocably guarantees the full and timely compliance with and performance of
all obligations of Buyer (or any of its Subsidiaries that are permitted
assignees of Buyer pursuant to Section 9.3 of the Purchase Agreement) ("Buyer
Obligations"), including without limitation all present and future payment
obligations thereunder in each case when (after giving effect to any applicable
grace or cure periods), and to the extent that, any of the same shall become due
and payable or performance of or compliance with any of the same shall be
required (collectively, the "Guaranty").
Section 1.2 Nature of Guaranty. The Guaranty is an irrevocable,
absolute, continuing guaranty of payment and performance, and not a guaranty of
collection. The Guaranty may be enforced by Seller, any Seller Indemnified Party
or an entity designated by Seller at least five Business Days prior to the
Closing Date as its representative (the "Representative"); provided, however,
that the appointment of such Representative shall be made pursuant to an
agreement that is reasonably acceptable to Buyer and which provides such
Representative with full power and authority to act on behalf of, and bind, each
Seller Indemnified Party and Seller. The Guaranty shall remain in full force and
effect and shall be binding on Parent and its successors and assigns until
all Buyer Obligations have been satisfied in full.
Section 1.3 No Impairment.
(a) Parent's obligations under the Guaranty shall not be subject to
any reduction, limitation, impairment or termination for any reason (other than
by indefeasible payment or performance in full of the Buyer Obligations) and
shall not be subject to any (i) defense, counterclaim, set-off or deduction and
shall remain in full force and effect without regard to, and shall not be
released, impaired or discharged by any circumstance or condition (whether or
not Parent shall have any knowledge or notice thereof) whatsoever that might
otherwise constitute a legal or equitable discharge or defense in any
bankruptcy, insolvency, reorganization, arrangement, readjustment, composition,
liquidation or similar proceeding with respect to Parent or Buyer, or their
respective properties or their creditors or any action taken by any trustee or
receiver or by any court in any such proceeding or (ii) any other circumstance
whatsoever that constitutes or might be construed to constitute an equitable or
legal discharge of Parent as a guarantor hereunder.
(b) Notwithstanding anything to the contrary in this Agreement,
Parent's obligations under the Guaranty shall be irrevocably reduced, limited
and terminated to the extent of any Buyer Obligations that are assigned,
transferred or delegated by Buyer to Friendco pursuant to Section 9.3 of the
Purchase Agreement to the extent Seller has the right to enforce in full against
Friendco any such Liability.
Section 1.4 Waiver. Parent unconditionally waives: (a) all notices
and demands which may be required by Law or otherwise to preserve any rights
against Parent under the Guaranty, including, without limitation, notice of the
acceptance of this Agreement or the Guaranty and (b) presentment, demand, notice
of dishonor, protest, notice of nonpayment and all other notices and demands;
provided, however, that Parent shall be furnished with a copy of any notice of
or relating to default under the Purchase Agreement to which Buyer is entitled
or which is served upon Buyer at the same time such notice is sent to or served
upon Buyer.
Section 1.5 Reservation of Rights of Parent. Notwithstanding
anything to the contrary in this Agreement, Parent shall be entitled to assert
as a defense hereunder any defense that is or would be available to Buyer under
the Purchase Agreement.
Section 1.6 Subrogation. Upon payment in full of any Buyer
Obligation, (a) Parent shall be subrogated to the rights of Seller, the Seller
Indemnified Parties and the Representative with respect to such Buyer Obligation
and (b) at the request of Parent, Seller, the Designated Entity, and any Seller
Indemnified Party that accepts a payment under this Agreement shall, as a
condition precedent to receipt of such payment, execute and deliver to Parent
appropriate documents necessary to evidence the transfer by subrogation to
Parent of an interest in the Buyer Obligations resulting from such payment by
Parent.
-2-
ARTICLE II
REPRESENTATIONS OF PARENT
Parent represents and warrants to Seller as follows:
Section 2.1 Organization and Qualification. Parent is a corporation
duly organized, validly existing and in good standing under the laws of
Delaware.
Section 2.2 Corporate Authorization. Parent has full corporate power
and authority to execute and deliver this Agreement and to perform its
obligations hereunder. The execution, delivery and performance by Parent of this
Agreement has been duly and validly authorized and no additional corporate,
shareholder or similar authorization or consent is required in connection with
the execution, delivery and performance by Parent of this Agreement.
Section 2.3 Consents and Approvals. No consent, approval, waiver,
authorization, notice or filing is required to be obtained by Parent from, or to
be given by Parent to, or made by Parent with, any Person in connection with the
execution, delivery and performance by Parent of this Agreement, other than the
consents, approvals, waivers, authorizations, notices or filings the failure of
which to obtain, give or make would not, individually or in the aggregate,
impair or delay in any material respect Parent's ability to perform its
obligations hereunder.
Section 2.4 Non-Contravention. The execution, delivery and
performance by Parent of this Agreement does not and will not (a) violate any
provision of the Articles of Incorporation, Bylaws or other organizational
documents of Parent or any of its Affiliates, (b) conflict with, or result in
the breach of, or constitute a default under, or result in the termination,
cancellation, modification or acceleration (whether after the filing of notice
or the lapse of time or both) of any right or obligation of Parent or any of its
Affiliates under, or a loss of any benefit to which Parent or any of its
Affiliates is entitled under, any contract, agreement or arrangement to which
any of them is a party or result in the creation of any Encumbrance upon any of
their assets or (c) violate or result in a breach of or constitute a default
under any Law to which Parent is subject, other than, in the case of clauses (b)
and (c), conflicts, breaches, terminations, defaults, cancellations,
accelerations, losses, violations or Encumbrances that would not, individually
or in the aggregate, impair or delay in any material respect Parent's ability to
perform its obligations hereunder.
Section 2.5 Binding Effect. This Agreement, when executed and
delivered by Seller, will constitute a valid and legally binding obligation of
Parent enforceable against it in accordance with its terms.
-3-
ARTICLE III
MISCELLANEOUS
Section 3.1 Notices. All notices, requests, demands, approvals,
consents and other communications hereunder shall be in writing and shall be
deemed to have been duly given and made if served by personal delivery upon the
party for whom it is intended or delivered by registered or certified mail,
return receipt requested, or if sent by telecopier or email, provided that the
telecopy or email is promptly confirmed by telephone confirmation thereof, to
the Person at the address set forth below, or such other address as may be
designated in writing hereafter, in the same manner, by such Person:
To Parent:
Time Warner Cable Inc.
000 Xxxxxx Xxxxx
Xxxxxxxx, XX 00000-0000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Email: xxxxx.xxxxx@xxxxxxx.xxx
Attention: Chief Executive Officer
With a copy to:
Legal Department
Time Warner Cable Inc.
000 Xxxxxx Xxxxx
Xxxxxxxx, XX 00000-0000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Email: xxxx.xxxxxxxx-xxxxxxxxx@xxxxxxx.xxx
Attention: General Counsel
-and-
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Email: xxxxxxx@xxxxxxxxx.xxx
xxxxxxxx@xxxxxxxxx.xxx
Attention: Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxxx
-4-
To Buyer:
c/o Time Warner Cable Inc.
000 Xxxxxx Xxxxx
Xxxxxxxx, XX 00000-0000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Email: xxxxx.xxxxx@xxxxxxx.xxx
Attention: Chief Executive Officer
With a copy to:
Legal Department
Time Warner Cable Inc.
000 Xxxxxx Xxxxx
Xxxxxxxx, XX 00000-0000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Email: xxxx.xxxxxxxx-xxxxxxxxx@xxxxxxx.xxx
Attention: General Counsel
-and-
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Email: xxxxxxx@xxxxxxxxx.xxx
xxxxxxxx@xxxxxxxxx.xxx
Attention: Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxxx
To Seller:
Adelphia Communications Corporation
0000 XXX Xxxxxxx
Xxxxxxxxx Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Email: xxxx.xxxxxxxxxx@xxxxxxxx.xxx
Attn: Xxxx Xxxxxxxxxx
-5-
With a copy to:
Xxxxxxxx & Xxxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Email: xxxxxx@xxxxxxxx.xxx
Attn: Xxxxxxxxx X. Xxxxx
Section 3.2 Amendment; Waiver. Any provision of this Agreement may
be amended or waived if, and only if, such amendment or waiver is in writing and
signed, in the case of an amendment, by Parent, Buyer and Seller, or in the case
of a waiver, by the party against whom the waiver is to be effective. No failure
or delay by any party in exercising any right, power or privilege hereunder
shall operate as a waiver thereof nor shall any single or partial exercise
thereof preclude any other or further exercise thereof or the exercise of any
other right, power or privilege. The rights and remedies herein provided shall
be cumulative and not exclusive of any rights or remedies provided by Law.
Section 3.3 No Assignment or Benefit to Third Parties. This
Agreement shall be binding upon and inure to the benefit of the parties hereto,
the Seller Indemnified Parties and their respective permitted assigns. No party
to this Agreement may assign any of its rights or transfer or delegate any of
its obligations under this Agreement, directly or indirectly, by operation of
Law or otherwise, without the prior written consent of the other parties hereto.
Nothing in this Agreement, express or implied, is intended to confer upon any
Person other than Buyer, Seller, the Seller Indemnified Parties and Parent and
their respective permitted assigns, any rights or remedies under or by reason of
this Agreement.
Section 3.4 Entire Agreement. This Agreement contains the entire
agreement between the parties hereto with respect to the subject matter hereof
and supersedes all prior agreements and understandings, oral or written, with
respect to such matters.
Section 3.5 Expenses. Except as otherwise expressly provided in this
Agreement, all costs and expenses incurred in connection with this Agreement and
the transactions contemplated hereby shall be borne by the party incurring such
costs and expenses.
Section 3.6 Governing Law; Submission to Jurisdiction; Selection of
Forum; Waiver of Trial by Jury. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
-6-
NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. Each party hereto
agrees that it shall bring any action or proceeding in respect of any claim
arising out of or related to this Agreement exclusively in (a) the Bankruptcy
Court so long as the Reorganization Case remains open and (b) after the
completion of the Reorganization Case or in the event that the Bankruptcy Court
determines that it does not have jurisdiction, any other Chosen Court, and
solely in connection with claims arising under this Agreement (i) irrevocably
submits to the exclusive jurisdiction of the Chosen Courts, (ii) waives any
objection to laying venue in any such action or proceeding in the Chosen Courts,
(iii) waives any objection that the Chosen Courts are an inconvenient forum or
do not have jurisdiction over any party hereto and (iv) agrees that service of
process upon such party in any such action or proceeding shall be effective if
notice is given in accordance with Section 2.1 of this Agreement. Seller
irrevocably designates The Corporation Trust Company as its agent and
attorney-in-fact for the acceptance of service of process and making an
appearance on its behalf in any such claim or proceeding and for the taking of
all such acts as may be necessary or appropriate in order to confer jurisdiction
over it before the Chosen Courts and Seller stipulates that such consent and
appointment is irrevocable and coupled with an interest. Each party hereto
irrevocably waives any and all right to trial by jury in any legal proceeding
arising out of or relating to this Agreement.
Section 3.7 Survival. All covenants and agreements made herein shall
survive and shall continue in full force and effect until all of such party's
obligations under this Agreement shall be fully performed in accordance with the
terms hereof. The representations and warranties made herein shall expire upon
the Closing.
Section 3.8 Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, and all of which
shall constitute one and the same Agreement.
Section 3.9 Headings. The heading references herein are for
convenience purposes only, and shall not be deemed to limit or affect any of the
provisions hereof.
Section 3.10 Severability. The provisions of this Agreement shall be
deemed severable and the invalidity or unenforceability of any provision shall
not affect the validity or enforceability of the other provisions hereof. If any
provision of this Agreement, or the application thereof to any Person or any
circumstance, is invalid or unenforceable, (a) a suitable and equitable
provision shall be substituted therefor in order to carry out, so far as may be
valid and enforceable, the intent and purpose of such invalid or unenforceable
provision and (b) the remainder of this Agreement and the application of such
provision to other Persons or circumstances shall not be affected by such
invalidity or unenforceability, nor shall such invalidity or unenforceability
affect the validity or enforceability of such provision, or the application
thereof, in any other jurisdiction.
-7-
IN WITNESS WHEREOF, the parties have executed or caused this
Agreement to be executed as of the date first above written.
TIME WARNER CABLE INC.
By: /s/ Xxxxx X. X'Xxxxx
-------------------------------------------
Name: Xxxxx X. X'Xxxxx
Title: Executive Vice President,
Investments
TIME WARNER NY CABLE LLC
By: /s/ Xxxxx X. X'Xxxxx
-------------------------------------------
Name: Xxxxx X. X'Xxxxx
Title: Executive Vice President,
Investments
ADELPHIA COMMUNICATIONS CORPORATION
By: /s/ Xxxxxxx Xxxxxxxx
-------------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Chief Executive Officer and
Chairman
Parent Agreement
