EXHIBIT: 10.7
EXECUTION COPY
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REIMBURSEMENT AGREEMENT
by and among
TIME WARNER CABLE INC.,
AOL TIME WARNER INC.,
WARNER COMMUNICATIONS INC.,
AMERICAN TELEVISION AND COMMUNICATIONS CORPORATION
and
TIME WARNER ENTERTAINMENT COMPANY, L.P.
Dated: March 31, 2003
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TABLE OF CONTENTS
Page
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1. Definitions........................................................ 1
2. Option Reimbursement for AOLTW Options............................. 3
2.1 Company Eligible Option Holders........................... 3
2.2 TWE Eligible Option Holders............................... 4
2.3 Assumption of AOLTW Obligations........................... 4
2.4 Consistent Tax Treatment.................................. 4
2.5 Post-Contribution Option Grants........................... 5
2.6 Post-IPO Option Grants.................................... 5
3. Reimbursement...................................................... 5
3.1 TWE Debt Guarantor Payments............................... 5
3.2 Priority of Rights........................................ 5
3.3 Duty to TWE Debt Guarantors............................... 6
3.4 Authorization of TWE Debt Guarantor Payment............... 6
3.5 Certain Information....................................... 6
3.6 Systems Maintenance....................................... 7
3.7 Compliance with Article Ten of TWE Indenture.............. 7
4. Company Guarantee.................................................. 7
5. Employee and Benefit Reimbursement................................. 7
5.1 Employee Services......................................... 7
5.2 Benefit Plans............................................. 7
5.3 Method of Reimbursement................................... 8
5.4 Other..................................................... 8
5.5 General................................................... 8
6. Miscellaneous...................................................... 8
6.1 Notices................................................... 8
6.2 Successors and Assigns.................................... 9
6.3 Amendment and Waiver...................................... 9
6.4 Survival.................................................. 9
6.5 TWE Debt Guarantor Rights and Remedies.................... 10
6.6 Counterparts; Effectiveness............................... 10
6.7 Headings.................................................. 10
6.8 GOVERNING LAW............................................. 10
6.9 Jurisdiction.............................................. 10
6.10 WAIVER OF JURY TRIAL...................................... 10
6.11 Severability.............................................. 10
6.12 Rules of Construction..................................... 11
6.13 Entire Agreement; Third Party Beneficiaries............... 11
6.14 Further Assurances........................................ 11
Exhibit A
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REIMBURSEMENT AGREEMENT
REIMBURSEMENT AGREEMENT (this "Agreement"), dated March 31,
2003, by and among Time Warner Cable Inc., a Delaware corporation (formerly
named MOTH Holdings, Inc., the "Company"), AOL Time Warner Inc., a Delaware
corporation ("AOLTW"), Warner Communications Inc., a Delaware corporation
("WCI"), American Television and Communications Corporation, a Delaware
corporation ("ATC" and, together with WCI, the "TWE Debt Guarantors") and Time
Warner Entertainment Company, L.P., a Delaware limited partnership ("TWE").
WHEREAS, effective as of and in connection with the closing of
the transactions contemplated by the Restructuring Agreement, dated as of August
20, 2002 (as amended, the "Restructuring Agreement"), by and among AOLTW,
Comcast Corporation, a Pennsylvania corporation (formerly named AT&T Comcast
Corporation, "Comcast"), the Company and the other parties thereto, the parties
have agreed to enter into certain reimbursement arrangements as hereinafter
provided.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth herein and for good and valuable consideration, the receipt
and adequacy of which are hereby acknowledged, the parties hereto agree as
follows:
1. Definitions. As used in this Agreement, and unless
the context requires a different meaning, the following terms have the meanings
indicated:
"Affiliate" means, with respect to any Person, any other
Person directly or indirectly controlling, controlled by or under common control
with such Person; provided, that, for purposes of this definition, "control"
(including with correlative meanings, the terms "controlled by" and "under
common control with"), as used with respect to any Person, shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether through the
ownership of voting securities or other equity securities, by contract or
otherwise; provided, further, that for purposes of this Agreement the Company
and its Subsidiaries shall not be deemed to be Affiliates of AOLTW or any of its
Affiliates.
"Agreement" means this Agreement as the same may be amended,
supplemented or modified in accordance with the terms hereof.
"AOLTW" has the meaning set forth in the preamble of this
Agreement.
"ATC" has the meaning set forth in the preamble of this
Agreement.
"Board of Directors" means the Board of Directors of the
Company.
"Beneficiaries" has the meaning set forth in Section 3.1(a) of
this Agreement.
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"Business Day" means a day other than a Saturday, Sunday or
other day on which commercial banks in New York City are authorized or required
by law to close.
"Capital Stock" means the Common Stock, par value $0.01 per
share, of AOLTW or any other class of capital stock of AOLTW (or any predecessor
or successor class thereof).
"Closing Price" means, with respect to any given date, the
last reported sale price of a share of Capital Stock (regular way) on such date
as shown on the NYSE Composite Transactions Tape, or, in case no such sale takes
place on such day, the average of the closing bid and asked prices of such stock
on such day on the NYSE, or, if such stock is not listed or admitted to trading
on the NYSE, on the principal national securities exchange on which such stock
is listed or admitted to trading, or, if it is not listed or admitted to trading
on any national securities exchange, the average of the closing bid and asked
prices of such stock on such day as reported by NASDAQ, or, if such stock is not
so reported, the average of the closing bid and asked prices of such stock on
such day as furnished by any member of the National Association of Securities
Dealers, Inc. selected from time to time by AOLTW for that purpose.
"Comcast" has the meaning set forth in the recitals to this
Agreement.
"Company" has the meaning set forth in the preamble to this
Agreement.
"Company Class A Stock" has the meaning set forth in Section
6.13(b) of this Agreement.
"Company Eligible Option Holder" means any officer or other
employee of the Company (or any of its Subsidiaries, other than TWE and its
Subsidiaries) including, without limitation, any Person who becomes an officer
or other employee of the Company (or any of its Subsidiaries, other than TWE and
its Subsidiaries) as a result of the transactions contemplated by the
Restructuring Agreement, who has been, or from time to time is, issued stock
options to purchase shares of Capital Stock.
"Company Option Reimbursement Amount" has the meaning set
forth in Section 2.1 of this Agreement.
"Initial Offering Date" means the date upon which the sale of
shares of Class A Common Stock, par value $0.01 per share, of the Company, or
Class B Common Stock, par value $0.01 per share, of the Company, sold in an
initial public offering (whether primary or secondary) of the Company pursuant
to an effective registration statement filed by the Company is closed.
"NASDAQ" means the National Association of Securities Dealers
Automated Quotation System.
"NYSE" means the New York Stock Exchange.
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"Person" means any individual, corporation, limited liability
company, partnership, firm, group (as such term is used under Section 13(d)(3)
of the Securities Exchange Act of 1934, as amended), joint venture, association,
trust, unincorporated organization, estate, trust or other entity.
"Restructuring Agreement" has the meaning set forth in the
recitals to this Agreement.
"Subsidiary" means, with respect to any Person, any other
Person of which securities or other ownership interests having ordinary voting
power to elect a majority of the board of directors or other body performing
similar functions are at any time directly or indirectly owned by such Person;
provided, that for purposes of this Agreement the Company and its Subsidiaries
shall not be deemed to be Subsidiaries of AOLTW or any of its Subsidiaries.
"TWE" has the meaning set forth in the preamble to this
Agreement.
"TWE Eligible Option Holder" means any officer or other
employee of TWE and its Subsidiaries, including, without limitation, any Person
who becomes an officer or other employee of TWE or any of its Subsidiaries as a
result of the transactions contemplated by the Restructuring Agreement, who has
been, or from time to time is, issued stock options to purchase shares of
Capital Stock.
"TWE Indenture" means that certain Indenture, dated as of
April 30, 1992, by and among Time Warner Inc., a Delaware Corporation, TWE and
The Bank of New York, a New York banking corporation, as trustee, as the same
may be amended, amended and restated, supplemented or otherwise modified from
time to time.
"TWE Option Reimbursement Amount" has the meaning set forth in
Section 2.2 of this Agreement.
"TWE Public Debt Guarantee" means the guarantee by the TWE
Debt Guarantors of TWE's obligations under the TWE Indenture.
"TWE Debt Guarantor Payment" has the meaning set forth in
Section 3.1 of this Agreement.
"TWE Debt Guarantors" has the meaning set forth in the
preamble to this Agreement.
"WCI" has the meaning set forth in the preamble to this
Agreement.
2. Option Reimbursement for AOLTW Options.
2.1 Company Eligible Option Holders. Upon the
exercise by any Company Eligible Option Holder of any stock option to purchase
shares of Capital Stock, the Company shall promptly (after notice of such
exercise is provided by AOLTW to the Company) pay to AOLTW, for each share of
Capital Stock so purchased, an
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amount (such amount, the "Company Option Reimbursement Amount") equal to the
excess of (i) the Closing Price of a share of such Capital Stock as of the date
of such exercise, over (ii) the aggregate exercise price paid by such Company
Eligible Option Holder for each such share of Capital Stock.
2.2 TWE Eligible Option Holders. Upon the
exercise by any TWE Eligible Option Holder of any stock option to purchase
shares of Capital Stock, TWE shall promptly (after notice of such exercise is
provided by AOLTW to the Company) pay to AOLTW, for each share of Capital Stock
so purchased, an amount (such amount, the "TWE Option Reimbursement Amount")
equal to the excess of (i) the Closing Price of a share of such Capital Stock as
of the date of such exercise, over (ii) the aggregate exercise price paid by
such TWE Eligible Option Holder for each such share of Capital Stock.
2.3 Assumption of AOLTW Obligations. In lieu of
the procedures described in Sections 2.1 and 2.2 above, if satisfactory
arrangements are reached with a Company Eligible Option Holder or a TWE Eligible
Option Holder, as applicable, at AOLTW's request, the Company or TWE, as
applicable, shall agree to assume AOLTW's obligations with respect to any
outstanding stock options held by such Company Eligible Option Holder or TWE
Eligible Option Holder, as applicable. In such event, upon exercise of any such
stock option by such Company Eligible Option Holder or TWE Eligible Option
Holder, as applicable, the Company or TWE, as applicable, shall (A) purchase the
shares of Capital Stock issuable upon exercise of such stock option from AOLTW
at a price (payable in cash) equal to the Closing Price of a share of such
Capital Stock on the date of exercise and (B) deliver such shares to the Company
Eligible Option Holder or TWE Eligible Option Holder, as applicable, against
payment to the Company or TWE by such Company Eligible Option Holder or TWE
Eligible Option Holder, as applicable, of the exercise price therefor.
2.4 Consistent Tax Treatment. AOLTW agrees and
acknowledges that the Company or TWE, as applicable, shall be entitled to claim
the benefit of any federal, state and local income tax deduction with respect to
the Company Option Reimbursement Amount and the TWE Option Reimbursement Amount
permitted to be deducted by the Company or TWE, as applicable, in accordance
with applicable law, and AOLTW shall not take any position inconsistent
therewith, unless required by a change in applicable law or a good faith
resolution of a contest. In the event AOLTW takes such an inconsistent position
as permitted by the preceding sentence, it shall pay to the Company or TWE, as
applicable, any tax benefit actually realized as a result of claiming the
benefit of any tax deductions with respect to the Company Option Reimbursement
Amount or the TWE Option Reimbursement Amount, as applicable; provided, however,
that subject to the foregoing, the determination of whether to claim any such
benefit, whether by filing an original or amended tax return or otherwise, shall
be made by AOLTW in its sole and absolute discretion. For purposes of the
foregoing, any such benefit shall be deemed "actually realized" by AOLTW only if
and to the extent that AOLTW shall have determined, in its sole reasonable
discretion, that its liability for
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taxes is less than its liability for taxes would have been had it not taken into
account any such tax deductions.
2.5 Post-Contribution Option Grants. After the
date hereof and prior to the date of the Initial Offering Date, options to
purchase Capital Stock shall be granted to officers or employees of the Company
or any of its Subsidiaries and to officers or employees of TWE or any of its
Subsidiaries only in the ordinary course of business consistent with past
practices.
2.6 Post-IPO Option Grants. In no event shall
options to purchase Capital Stock be granted to officers or employees of the
Company or any of its Subsidiaries or to officers or employees of TWE or any of
its Subsidiaries after the Initial Offering Date.
3. Reimbursement.
3.1 TWE Debt Guarantor Payments. In the event
that any TWE Debt Guarantor makes any payment under its TWE Public Debt
Guarantee or any other indebtedness of the Company or its Subsidiaries
guaranteed from time to time by the TWE Debt Guarantors (a "TWE Debt Guarantor
Payment"):
(a) Each of TWE and the Company (the
"Beneficiaries") agrees, jointly and severally, to reimburse such TWE Debt
Guarantor in full for all TWE Debt Guarantor Payments of such TWE Debt Guarantor
together with interest thereon from the date of payment until reimbursed in full
at a rate per annum equal to the interest rate on the indebtedness with respect
to which such TWE Debt Guarantor Payment was made and without regard to any
rights that such Beneficiary may have against any other guarantor of the
obligations under the TWE Indenture which might otherwise limit such
Beneficiary's liability to reimburse such TWE Debt Guarantor in full; and
(b) Each of the Beneficiaries hereby
acknowledges that such TWE Debt Guarantor shall be fully subrogated to the
extent of its TWE Debt Guarantor Payment to all of the rights and remedies
(including without limitation all security interests if any) of the holders
under the TWE Indenture against such Beneficiary.
3.2 Priority of Rights. Each of the
Beneficiaries hereby agrees that all of the rights of the TWE Debt Guarantors
referred to in this Agreement shall have priority over any right of such
Beneficiary, whether direct or indirect, by contribution, subrogation,
reimbursement, indemnification or otherwise, to demand any payment, contribution
or reimbursement whatsoever from the other Beneficiary until such time as any
and all TWE Debt Guarantor Payments have been repaid to the respective TWE Debt
Guarantors in full and the TWE Debt Guarantors have no further obligations under
their respective TWE Debt Guarantees, and until such time such Beneficiary shall
not be entitled to exercise any such rights against any other party to this
Agreement.
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3.3 Duty to TWE Debt Guarantors. Except for
non-waivable, mandatory duties imposed by law, each of the Beneficiaries hereby
acknowledges and agrees that (i) neither of the TWE Debt Guarantors has any
duties to them with respect to the method, manner and timing of the exercise or
nonexercise of any of such TWE Debt Guarantor's rights to recover payment of any
TWE Debt Guarantor Payment of such TWE Debt Guarantor and (ii) to the extent
that any such duties may exist, they are hereby waived.
3.4 Authorization of TWE Debt Guarantor Payment.
In the event that a TWE Debt Guarantor makes any TWE Debt Guarantor Payment,
such TWE Debt Guarantor is hereby irrevocably authorized by each of the
Beneficiaries at any time and from time to time without notice to such
Beneficiary, any such notice being hereby waived by such Beneficiary, to set off
and appropriate and apply any and all deposits (general or special, time or
demand, provisional or final), in any currency, and any other credits,
indebtedness or claims, in any currency, in each case whether direct or
indirect, absolute or contingent, matured or unmatured, at any time held or
owing by such TWE Debt Guarantor, its Subsidiaries or its Affiliates to or for
the credit or the account of such Beneficiary, or any part thereof in such
amounts as such TWE Debt Guarantor may elect, on account of the liabilities of
such Beneficiary to such TWE Debt Guarantor in respect of such TWE Debt
Guarantor Payment hereunder or under the TWE Indenture, whether or not such TWE
Debt Guarantor has made any demand for payment. Such TWE Debt Guarantor shall
notify such Beneficiary promptly of any such set-off made by it and the
application made by it of the proceeds thereof; provided that the failure to
give such notice shall not affect the validity of such set-off and application.
The rights of each TWE Debt Guarantor under this Section 3 are in addition to
other rights and remedies (including, without limitation, other rights of
set-off) which such TWE Debt Guarantor may have against such Beneficiary.
3.5 Certain Information. Each of the
Beneficiaries, at its own cost and expense, shall provide, or cause to be
provided, to the TWE Debt Guarantors, as soon as reasonably practicable after
written request therefor, any information in the possession or under the control
of such Beneficiary that the requesting TWE Debt Guarantor reasonably requires
(i) to comply with reporting, disclosure, filing or other requirements imposed
on the requesting TWE Debt Guarantor (including under applicable securities or
tax laws) by a governmental authority having jurisdiction over the requesting
TWE Debt Guarantor, (ii) for use in any other judicial, regulatory,
administrative, tax or other proceeding or in order to satisfy audit,
accounting, claims, regulatory, litigation, tax or other similar requirements or
(iii) to comply with its obligations under this Agreement; provided, however,
that in the event that any party determines that any such provision of
information would reasonably be expected to violate any law or agreement or
waive any attorney-client privilege, the parties shall take all reasonable
measures to permit the compliance with such obligations in a manner that avoids
any such consequence. Each of the Beneficiaries intends that any transfer of
information that would otherwise be within the attorney-client privilege shall
not operate as a waiver of any potentially applicable privilege.
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3.6 Systems Maintenance. After the date hereof,
each of the Beneficiaries shall maintain in effect adequate systems and controls
to the extent necessary to enable them to satisfy their respective reporting,
accounting, audit and other obligations.
3.7 Compliance with Article Ten of TWE
Indenture. Each of the Beneficiaries agrees to comply with the covenants
contained in Article Ten of the TWE Indenture as in effect on the date hereof.
The provisions of Article Ten of the TWE Indenture and the related definitions
are hereby incorporated by reference into this Agreement with the same effect as
if set forth fully herein.
4. Company Guarantee. On or prior to the Initial
Offering Date, the Company shall enter into a guarantee agreement (in the form
attached hereto as Exhibit A or in any other form as the parties shall agree)
providing for a guarantee by the Company to the holders of debt securities
issued by TWE pursuant to the TWE Indenture. At the request of the Company on or
after the Closing, TWE (or any of its Subsidiaries) will execute a guarantee in
a similar form in respect of any indebtedness of the Company or its Subsidiaries
outstanding from time to time.
5. Employee and Benefit Reimbursement.
5.1 Employee Services. Upon the agreement of
AOLTW and the Company, certain employees of AOLTW and/or its Affiliates may from
time to time provide services to the Company or its Subsidiaries. From and after
the date hereof, the Company or its Subsidiaries, as applicable, shall reimburse
AOLTW and/or any such Affiliates, in the manner set forth in Section 5.3 hereof,
for the costs of providing such services, including reasonable allocations of
compensation, employee benefit plan costs (including administration costs and
benefit accruals associated therewith), overhead, and other fixed costs and
expenses.
5.2 Benefit Plans. Except as otherwise
specifically provided in this Agreement with respect to options to purchase
shares of Capital Stock, to the extent that, on or after the date hereof, any
current, future or former employees of the Company or its Subsidiaries
participate in any benefit plans, programs, or arrangements maintained by AOLTW
or any of its Affiliates, the Company or its Subsidiaries, as applicable, shall
reimburse AOLTW or, if applicable, such Affiliate or Affiliates, in the manner
set forth in Section 5.3 hereof, for all costs, including administration costs
and benefit accruals, associated with such employees' participation in the
employee benefit plans, programs or arrangements with respect to employment by
the Company or its Subsidiaries in a manner that is consistent with past
practice; provided, however, that (i) except as set forth in Section 5.1, in the
event that any employee described above becomes employed by AOLTW or any of its
Affiliates after the Closing (as defined in the Restructuring Agreement), then
the Company and its Subsidiaries will not be required to reimburse AOLTW or any
of its Affiliates for any costs associated with such employee's participation in
employee benefit plans, programs or arrangements while employed by, or on
account of such employee's employment with, AOLTW or any of its Affiliates after
the Closing and (ii) in the event that any employee of AOLTW or any of its
Affiliates
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becomes employed by the Company or any of its Subsidiaries after the Closing
then the Company and its Subsidiaries will not be required to reimburse AOLTW or
any of its Affiliates for any costs associated with such employee's
participation in employee benefit plans, programs or arrangements while such
employee was employed by, or on account of such employee's employment with,
AOLTW or any of its Affiliates.
5.3 Method of Reimbursement. Any reimbursement
pursuant to Section 5.1 or 5.2 shall be made by the Company or its Subsidiaries,
as applicable, in a manner consistent with prior practices of AOLTW and TWE with
respect to such reimbursement.
5.4 Other. The provisions of this Agreement will
be interpreted in a manner consistent with past practice, except as otherwise
expressly provided by this Agreement or in any other agreement or arrangement
between or among the parties contemplated by the Restructuring Agreement (or any
other Transaction Agreement (as defined therein)) or entered into after the date
hereof.
5.5 General. The provisions of this Section 5
shall at all times be subject to the requirements of Article VI of the By-laws
of the Company. No reimbursement will be made pursuant to this Section 5 if
reimbursement in respect of the same payment or service has been made pursuant
to another provision of this Agreement or any other agreement among the parties.
6. Miscellaneous.
6.1 Notices. All notices, demands or other
communications provided for or permitted hereunder shall be made in writing and
shall be by registered or certified first class mail, return receipt requested,
telecopier, courier service or personal delivery:
(a) if to the Company or TWE:
c/o Time Warner Cable Inc.
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Telecopy: (000) 000-0000
Attention: Executive Vice
President, General
Counsel and Secretary
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(b) if to AOLTW, ATC or WCI:
c/o AOL Time Warner Inc.
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Telecopy: (000) 000-0000
Attention: Executive Vice
President, General
Counsel and
Secretary
or such other address or facsimile number as such party hereto may hereafter
specify for such purpose by notice to the other parties hereto. All such
notices, requests and other communications shall be deemed received on the date
of receipt by the recipient thereof if received prior to 5 p.m. on a Business
Day, in the place of receipt. Otherwise, any such notice, request or
communication shall be deemed not to have been received until the next
succeeding Business Day in the place of receipt.
6.2 Successors and Assigns. The provisions of
this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns; provided that no party
hereto may assign, delegate or transfer any of its rights or obligations
hereunder without the consent of the other parties hereto.
6.3 Amendment and Waiver.
(a) Any amendment, supplement or
modification of or to any provision of this Agreement, any waiver of any
provision of this Agreement, and any consent to any departure by any party from
the terms of any provision of this Agreement, shall be effective only if it is
made or given in writing and signed by the Company and AOLTW; provided, that any
material amendment, supplement or modification of or to this Agreement shall
also require the approval of a majority of the Independent Directors (as defined
in the Restated Certificate of Incorporation of the Company). Any such
amendment, supplement, modification, waiver or consent shall be binding upon the
Company, AOLTW and the other parties hereto.
(b) No failure or delay on the part of
any party hereto in exercising any right, power or remedy 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 remedy. The rights and remedies provided for herein are
cumulative and are not exclusive of any rights and remedies that may be
available to the parties hereto at law, in equity or otherwise.
6.4 Survival. The rights of each party under
this Agreement shall continue to be effective, or be reinstated, as the case may
be, if any payment made hereunder, or any part thereof, on account of any of the
reimbursement obligations hereunder is at any time rescinded or at any time must
otherwise be restored or returned by such party upon the insolvency, bankruptcy,
dissolution, liquidation or reorganization of any other party, or upon or as a
result of the appointment of a receiver, intervenor or
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conservator of, or trustee or similar officer for, such party or any substantial
part of their property, or otherwise, all as though such payments had not been
made.
6.5 TWE Debt Guarantor Rights and Remedies.
Notwithstanding anything in this Agreement to the contrary, the rights accorded
to each TWE Debt Guarantor hereunder shall be in addition to, and not in lieu
of, any rights that such TWE Debt Guarantor may have to be reimbursed for all
TWE Debt Guarantor Payments of such TWE Debt Guarantor at common law, in equity,
by separate agreement or otherwise.
6.6 Counterparts; Effectiveness. This Agreement
may be executed in any number of counterparts and by the parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. This Agreement shall become effective when each party hereto shall
have received a counterpart hereof signed by the other parties hereto.
6.7 Headings. The headings in this Agreement are
for convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
6.8 GOVERNING LAW. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAW THEREOF.
6.9 Jurisdiction. Any suit, action or proceeding
seeking to enforce any provision of, or based on any matter arising out of or in
connection with, this Agreement or the transactions contemplated hereby shall be
brought exclusively in any federal or state court located in the State and City
of New York, and each of the parties hereby consents to the jurisdiction of such
courts (and of the appropriate appellate courts therefrom) in any such suit,
action or proceeding and irrevocably waives, to the fullest extent permitted by
law, any objection that it may now or hereafter have to the laying of the venue
of any such suit, action or proceeding in any such court or that any such suit,
action or proceeding brought in any such court has been brought in an
inconvenient forum. Process in any such suit, action or proceeding may be served
on any party anywhere in the world, whether within or without the jurisdiction
of any such court.
6.10 WAIVER OF JURY TRIAL. EACH OF THE PARTIES
HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
6.11 Severability. If any term, provision,
covenant or restriction of this Agreement is determined by a court of competent
jurisdiction or other authority to be invalid, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions of this Agreement
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated so long as the economic or legal substance of the
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transactions contemplated hereby is not affected in any manner adverse to any
party hereto. Upon such a determination, the parties hereto shall negotiate in
good faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible in an acceptable manner so that the transactions
contemplated hereby may be consummated as originally contemplated to the fullest
extent possible.
6.12 Rules of Construction. Unless the context
otherwise requires, references to sections or subsections refer to sections or
subsections of this Agreement.
6.13 Entire Agreement; Third Party Beneficiaries.
(a) This Agreement (together with all
exhibits hereto) constitutes the entire agreement between the parties with
respect to the subject matter hereof and supersedes all prior agreements and
understandings, both oral and written, among the parties with respect to such
subject matter.
(b) Except as provided below, this
Agreement shall be binding upon and inure solely to the benefit of each party
hereto and their respective successors and permitted assigns, and nothing in
this Agreement, express or implied, is intended to or shall confer upon any
other Person any right, benefit or remedy of any nature whatsoever under or by
reason of this Agreement. Notwithstanding the foregoing, TWE Holdings II Trust,
a Delaware statutory trust, shall be deemed a third party beneficiary of
Sections 2.5 and 2.6 hereof for so long as Comcast, directly or indirectly,
holds a number of shares of Class A Common Stock, par value $0.01 per share, of
the Company (the "Company Class A Stock") at least equal to five percent (5%) of
the aggregate number of outstanding shares of Company Class A Stock and Class B
Common Stock, par value $0.01 per share, of the Company. For purposes of this
Section 6.13(b), Comcast will be deemed to hold any Company Class A Stock owned
by a statutory trust all of the beneficial interests in which are owned,
directly or indirectly, by Comcast.
6.14 Further Assurances. Each of the parties
shall, and shall cause their respective Affiliates to, execute such documents
and perform such further acts as may be reasonably required or desirable to
carry out or to perform the provisions of this Agreement.
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12
IN WITNESS WHEREOF, the undersigned have executed, or have
caused to be executed, this Reimbursement Agreement on the date first written
above.
TIME WARNER CABLE INC.
By: /s/ Xxxx X. Xxxxxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Executive Vice President,
General Counsel & Secretary
AOL TIME WARNER INC.
By: /s/ Xxxxxxx X. Xxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Senior Vice President
WARNER COMMUNICATIONS INC.
By: /s/ Xxxxxxx X. Xxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Senior Vice President
AMERICAN TELEVISION AND COMMUNICATIONS
CORPORATION
By: /s/ Xxxxxxx X. Xxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Senior Vice President
TIME WARNER ENTERTAINMENT COMPANY, L.P.
By: WARNER COMMUNICATIONS INC.,
as General Partner
By: /s/ Xxxxxxx X. Xxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Senior Vice President
EXHIBIT A
TIME WARNER ENTERTAINMENT COMPANY, L.P.,
AND
TIME WARNER CABLE INC.
TO
THE BANK OF NEW YORK,
TRUSTEE
EIGHTH SUPPLEMENTAL INDENTURE
DATED AS OF [_______________]
EIGHTH SUPPLEMENTAL INDENTURE dated as of [_____], 200[_], by
and among TIME WARNER ENTERTAINMENT COMPANY, L.P., a Delaware limited
partnership ("TWE"), TIME WARNER CABLE INC., a corporation duly organized and
existing under the laws of the State of Delaware ("TW Cable "), and THE BANK OF
NEW YORK, a banking corporation duly organized and existing under the laws of
New York, Trustee (the "Trustee").
RECITALS
Time Warner, Inc. ("TWI"), TWE, the Trustee and certain other
parties have executed and delivered an Indenture dated as of April 30, 1992, as
amended by a First Supplemental Indenture dated as of June 30, 1992, a Second
Supplemental Indenture dated as of December 9, 1992, a Third Supplemental
Indenture dated as of October 12, 1993, a Fourth Supplemental Indenture dated as
of March 29, 1994, a Fifth Supplemental Indenture dated as of December 28, 1994,
a Sixth Supplemental Indenture dated as of September 29, 1997 and a Seventh
Supplemental Indenture dated as of December 29, 1997 (the "Indenture"),
providing for, among other things, the issuance from time to time of unsecured
debentures, notes or other evidences of indebtedness (the "Securities"), to be
issued in one or more series as provided in the Indenture.
TWE and TW Cable have duly authorized the execution and
delivery of this Eighth Supplemental Indenture to provide for, among other
things, (i) the guarantee of TWE's obligations under the Securities by TW Cable
(the "TW Cable Guaranty") and (ii) the addition of TW Cable as a party to the
Indenture, subject in each case to the terms and conditions described herein.
This Eighth Supplemental Indenture is being executed pursuant
to and in accordance with Section 901 of the Indenture.
All things necessary to make this Eighth Supplemental
Indenture a valid and binding agreement of TWE and TW Cable have been done.
NOW, THEREFORE, WITNESSETH:
For and in consideration of the promises and other good and
valuable consideration, the sufficiency and receipt of which are hereby
acknowledged, it is mutually agreed, for the equal proportionate benefit of all
Holders of the Securities, as follows:
ARTICLE ONE
INCORPORATION OF PREVIOUS DOCUMENTS
SECTION 101. INCORPORATION OF PREVIOUS DOCUMENTS.
This Eighth Supplemental Indenture is a supplemental indenture
within the meaning of the Indenture and shall be read together and shall have
the same effect as
2
though all the provisions thereof and hereof were contained in one instrument.
Unless otherwise expressly provided, the provisions of the Indenture are
incorporated herein by reference.
SECTION 102. DEFINITIONS.
Unless otherwise provided herein, the terms used herein shall
have the meanings ascribed to such terms in the Indenture.
SECTION 103. GOVERNING LAW.
This Eighth Supplemental Indenture, the Indenture and the
Securities shall be governed by and construed in accordance with the laws of the
State of New York.
ARTICLE TWO
GUARANTY
SECTION 201. TW CABLE GUARANTY.
For value received, TW Cable, and each of its successors and
assigns, hereby fully and unconditionally guarantees to each Holder of the
Securities upon which this TW Cable Guaranty is referred to, and to the Trustee
on behalf of each such Holder, the due and punctual payment of all principal of
(and premium, if any, on) and interest on such Security, when and as the same
shall become due and payable, whether at Stated Maturity upon redemption or
repayment, upon declaration of acceleration or otherwise, according to the terms
of the Securities and of the Indenture. In case of the failure of TWE or any
successor thereto punctually to pay any such principal, premium or interest, TW
Cable hereby agrees to immediately cause any such payment to be made punctually
when and as the same shall become due and payable, whether at Stated Maturity,
upon redemption or repayment, upon declaration of acceleration or otherwise, as
if such payment were made by TWE.
TW Cable hereby agrees that as long as this Section 201 is in
effect with respect to TW Cable pursuant to the Indenture, its obligations
hereunder shall be unconditional and absolute, irrespective of the validity,
regularity or enforceability of any such Security or the Indenture, the absence
of any action to enforce the same, the granting of any waiver or consent by the
Holder of any such Security with respect to any provisions thereof, the recovery
of any judgment against TWE or any action to enforce the same, or any other
circumstances which might otherwise constitute a legal or equitable discharge or
defense of a guarantor. TW Cable hereby waives diligence, presentment, demand of
payment, filing of claims with a court in the event of insolvency or bankruptcy
of TWE, any right to require a proceeding be brought first against TWE, protest,
notice and all demands whatsoever, and covenants that as long as this Section
201 is in effect with respect to TW Cable pursuant to the Indenture, this TW
Cable Guaranty will not be discharged except by complete payment of the payment
and other obligations contained in any such Security or in this Section 201.
3
TW Cable acknowledges and agrees for the benefit of the
Trustee and such Holders that the Trustee and such Holders (in the case of an
Event of Default under Section 501(1) or (2) of the Indenture) may directly and
simultaneously proceed against TW Cable for the enforcement of this TW Cable
Guaranty and against TWE (as Obligor). The obligations of TW Cable hereunder are
independent of the obligations of TWE under the Securities and the Indenture,
and a separate action or actions may be brought and prosecuted against TW Cable
hereunder whether or not (i) an action or proceeding is brought against TWE or
any other guarantor, (ii) TWE or TW Cable is joined in any such action or
proceeding against such other guarantor and (iii) the Trustee or such Holders
have taken any action to collect or attempt to otherwise collect such
obligations from TWE or any other Person liable therefor.
Anything in this Section 201 to the contrary notwithstanding,
the TW Cable Guaranty is and shall be deemed to be a Guarantee of payment, and
not a Guarantee of collection.
If the Trustee or the Holder of any such Security is required
by any court or otherwise to return to TWE or any custodian, receiver,
liquidator, trustee, sequestrator or other similar official acting in relation
to TWE, any amount paid to the Trustee or such Holder in respect of such
Security, this TW Cable Guaranty, to the extent theretofore discharged, shall be
reinstated in full force and effect. TW Cable further agrees, to the fullest
extent that it may lawfully do so, that, as between TW Cable, on the one hand,
and such Holders and the Trustee, on the other hand, the maturity of the
obligations guaranteed hereby may be accelerated as provided in Article Five of
the Indenture for the purposes of this TW Cable Guaranty, notwithstanding any
stay, injunction or other prohibition extent under any applicable bankruptcy law
preventing such acceleration in respect of the obligations guaranteed hereby.
TW Cable hereby irrevocably subordinates to the prior payment
in full of all Securities guaranteed by TW Cable hereunder, any claim or other
rights which it may now or hereafter acquire against TWE that arises from the
existence, payment, performance or enforcement of TW Cable's obligations under
this TW Cable Guaranty, including, without limitation, any right of subrogation,
reimbursement, exoneration, contribution, indemnification, any right to
participate in any claim or remedy of any Holder of any such Security or the
Trustee on behalf of such Holder against TWE or any collateral which any such
Holder or the Trustee on behalf of such Holder hereafter acquires, whether or
not such claim, remedy or right arises in equity, or under contract, statute or
common law, including, without limitation, the right to take or receive from
TWE, directly or indirectly, in cash or other property or by set-off or in any
other manner, payment or security on account of such claim or other rights. If
any amount shall be paid to TW Cable in violation of the preceding sentence at
any time prior to the payment in full of all obligations and all other amounts
payable hereunder, such amount shall be deemed to have been paid to TW Cable for
the benefit of, and held in trust for the benefit of, any Holder of such
Security and the Trustee on behalf of such Holder, and shall forthwith be paid
to the Trustee for the benefit of such Holder to be credited and applied upon
such guaranteed obligations, whether matured or unmatured, in accordance
4
with the terms of the Indenture. TW Cable acknowledges that the subordination
set forth in this Section 201 is knowingly made.
This TW Cable Guaranty shall become effective upon execution
and delivery of this Eighth Supplemental Indenture by each of the parties
hereto.
No reference herein to the Indenture and no provision of this
Section 201 or of the Indenture shall alter or impair the Guarantee of TW Cable,
which is absolute and unconditional, of the due and punctual payment of the
principal of (and premium, if any) and interest on the Securities upon which
this TW Cable Guaranty is referred to.
ARTICLE THREE
ADDITION OF TW CABLE AS A PARTY TO INDENTURE
By execution of this Eighth Supplemental Indenture, TW Cable
agrees that it shall be party to, and shall be subject to, bound by and entitled
to the benefits of, the Indenture as supplemented by this Eighth Supplemental
Indenture.
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one of the same instrument.
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5
IN WITNESS WHEREOF, the parties hereto have caused this Eighth
Supplemental Indenture to be duly executed by their respective officers or
agents, all as of the day and year first above written.
TIME WARNER ENTERTAINMENT
COMPANY, L.P.
By: _____________________________
Name:
Title:
TIME WARNER CABLE INC.
By: _____________________________
Name:
Title:
THE BANK OF NEW YORK, Trustee
By: _____________________________
Name:
Title:
0
XXXXX XX XXX XXXX )
:
COUNTY OF NEW YORK )
On the ____ day of ________, before me personally came
____________, to me known, who, being by me duly sworn, did depose and say that
he is a ____________ of TIME WARNER ENTERTAINMENT COMPANY, L.P., the Delaware
limited partnership described in and which executed the foregoing instrument;
that he knows the seal of said limited partnership; that the seal affixed to
said instrument is such seal; that it was so affixed by authority of the Board
of Representatives or the Managing General Partners of said limited partnership,
and that he signed his name thereto by like authority.
___________________________________
________________
Notary Public, State of New York
No. ____________
Qualified in New York County
Commission Expires ________
STATE OF NEW YORK )
:
COUNTY OF NEW YORK )
On the __ day of ________, before me personally came
___________, to me known, who, being by me duly sworn, did depose and say that
he is a __________ of TIME WARNER CABLE INC., one of the corporations described
in and which executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
___________________________________
________________
Notary Public, State of New York
No. ____________
Qualified in New York County
Commission Expires ________
7
STATE OF NEW YORK )
:
COUNTY OF NEW YORK )
On the ____ day of ________, before me personally came
____________, to me known, who, being by me duly sworn, did depose and say that
he is a ____________ of THE BANK OF NEW YORK, one of the corporations described
in and which executed the foregoing instrument; that he knows the seal of said
limited partnership; that the seal affixed to said instrument is such seal; that
it was so affixed by authority of the Board of Representatives or the Managing
General Partners of said limited partnership, and that he signed his name
thereto by like authority.
___________________________________
________________
Notary Public, State of New York
No. ____________
Qualified in New York County
Commission Expires ________
