EXHIBIT 4.1
EXECUTION COPY
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HISTORIC TW INC.,
TIME WARNER ENTERTAINMENT COMPANY, L.P.,
TIME WARNER CABLE INC.,
TW NY CABLE HOLDING INC.,
TIME WARNER NY CABLE LLC,
AMERICAN TELEVISION AND COMMUNICATIONS CORPORATION, AND
WARNER COMMUNICATIONS INC.
TO
THE BANK OF NEW YORK,
TRUSTEE,
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Tenth Supplemental Indenture
Dated as of October 18, 2006
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TENTH SUPPLEMENTAL INDENTURE dated as of October 18, 2006 among HISTORIC TW
INC. (f/k/a "Time Warner Inc."), a corporation duly organized and existing under
the laws of the State of Delaware ("HTW"), 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
("TWC"), TW NY CABLE HOLDING INC., a corporation duly organized and existing
under the laws of the State of Delaware ("TWNYH"), TIME WARNER NY CABLE LLC, a
limited liability company duly organized and existing under the laws of the
State of Delaware ("TWNY"), AMERICAN TELEVISION AND COMMUNICATIONS CORPORATION,
a corporation duly organized and existing under the laws of the State of
Delaware, and WARNER COMMUNICATIONS, INC., a corporation duly organized and
existing under the laws of the State of Delaware, (collectively the "TW
Partners") and THE BANK OF NEW YORK, a banking corporation duly organized and
existing under the laws of New York, as Trustee (the "Trustee").
RECITALS
HTW, TWE, TWC, TWNY, the TW Partners and the Trustee have executed and
delivered an Indenture dated as of April 30, 1992, as amended by the First
Supplemental Indenture dated as of June 30, 1992, the Second Supplemental
Indenture dated as of December 9, 1992, the Third Supplemental Indenture dated
as of October 12, 1993, the Fourth Supplemental Indenture dated as of March 29,
1994, the Fifth Supplemental Indenture dated as of December 28, 1994, the Sixth
Supplemental Indenture dated as of September 29, 1997, the Seventh Supplemental
Indenture dated as of December 29, 1997, the Eighth Supplemental Indenture dated
as of December 9, 2003 and the Ninth Supplemental Indenture dated as of November
1, 2004 (collectively, the "Indenture"), providing for 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
and the guaranties of the Securities by the TW Partners (the "TW Partner
Guaranties").
HTW, TWE, TWC, TWNYH, TWNY and each of the TW Partners have duly authorized
the execution and delivery of this Tenth Supplemental Indenture to provide for
the guaranty of the Securities by TWNYH (the "TWNYH Guaranty") and the addition
of TWNYH as a party to the Indenture, subject in each case to the terms and
conditions described herein.
This Tenth Supplemental Indenture is being executed pursuant to and in
accordance with Section 901 of the Indenture.
All things necessary to make this Tenth Supplemental Indenture a valid and
binding agreement of HTW, TWE, TWC, TWNYH, TWNY and the TW Partners have been
done.
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NOW, THEREFORE, WITNESSETH:
For and in consideration of the premises and other good and valuable
consideration, the sufficiency and receipt of which are hereby acknowledged, and
the purchase of the Securities by the Holders thereof, it is mutually agreed,
for the equal and proportionate benefit of all Holders of the Securities, as
follows:
ARTICLE ONE
INCORPORATION OF PREVIOUS DOCUMENTS
SECTION 101. Incorporation of Previous Documents.
This Tenth Supplemental Indenture is a supplemental indenture within the
meaning of the Indenture and shall be read together therewith, and shall have
the same effect as 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 Tenth Supplemental Indenture, the Indenture and the Securities shall
be governed by and construed in accordance with the laws of the State of New
York.
SECTION 104. Trustee.
The Trustee makes no representation as to the validity or sufficiency of
this Tenth Supplemental Indenture, except as to the satisfaction of the Trustee
with the form hereof. The recitals and statements herein are deemed to be those
of the parties hereto other than the Trustee.
ARTICLE TWO
TWNYH GUARANTY
The TWNYH Guaranty provided for in this Article Two shall become effective
upon execution and delivery of this Tenth Supplemental Indenture by each of the
parties hereto.
For value received, TWNYH and, subject to the terms of the Indenture, its
successors and assigns, hereby fully and unconditionally guarantees to each
Holder of
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Securities Outstanding as of the date hereof and any Securities heretofore
issued and Outstanding which reference the applicability of this Guaranty
(collectively, the "Guaranteed Securities"), and to the Trustee for itself and
on behalf of each such Holder, the due and punctual payment of the principal of
(and premium if any) and interest on such Guaranteed Securities, when and as the
same become due and payable, whether at Stated Maturity, upon redemption or
repayment, upon declaration of acceleration or otherwise, according to the terms
of the Guaranteed Securities and of the Indenture. In case of the failure of TWE
or any successor thereto to punctually pay any such principal, premium or
interest, TWNYH 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.
TWNYH hereby agrees that as long as this Article Two is in effect, its
obligations hereunder and under the Indenture shall be unconditional and
absolute, irrespective of the identity of TWE, the validity, regularity or
enforceability of any such Securities 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 Securities with respect to any provisions thereof, the recovery of
any judgment against TWE or any action to enforce the same, or any other
circumstance which might otherwise constitute a legal or equitable discharge or
defense of a guarantor. TWNYH 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 that a proceeding be brought first against TWE,
protest, notice and all demands whatsoever, and covenants that as long as this
Article Two is in effect, this TWNYH Guaranty will not be discharged except by
complete payment of the payment and other obligations contained in such Security
or in this Article Two.
TWNYH 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 TWNYH for the enforcement of this TWNYH Guaranty and against TWE
(as Obligor). The obligations of TWNYH hereunder are independent of the
obligations of TWE under the Guaranteed Securities and the Indenture, and a
separate action or actions may be brought and prosecuted against TWNYH hereunder
whether or not (i) an action or proceeding is brought against TWE, (ii) TWE is
joined in any such action or proceeding against TWNYH or (iii) the Trustee or
such Holders have taken any action to collect or attempted to otherwise collect
such obligations from TWE or any other Person liable therefor.
Anything in this Article Two to the contrary notwithstanding, this TWNYH
Guaranty is and shall be deemed to be a guaranty of payment, and not a guaranty
of collection.
If the Trustee or the Holder of any Guaranteed Security is required by any
court or otherwise to return to TWE or any custodian, receiver, liquidator,
trustee,
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sequestrator or other similar official acting in relation to TWE, any amount
paid to the Trustee or such Holder in respect of such Guaranteed Security, this
TWNYH Guaranty, to the extent theretofore discharged, shall be reinstated in
full force and effect. TWNYH further agrees, to the fullest extent that it may
lawfully do so, that, as between itself, on the one hand, and Holders of
Guaranteed Securities and the Trustee, on the other hand, the maturity of the
obligations guaranteed hereby may be accelerated to the extent provided in
Article Five of the Indenture for purposes of this TWNYH Guaranty,
notwithstanding any stay, injunction or other prohibition existing under any
applicable bankruptcy law preventing such acceleration in respect of the
obligations guaranteed hereby.
No reference herein to the Indenture, and no provision of this Article Two
or of the Indenture, shall alter or impair this TWNYH Guaranty, which is
absolute and unconditional, as to the payment of the principal (and premium, if
any) and interest owing in respect of the Securities referring to this TWNYH
Guaranty.
ARTICLE THREE
ADDITION OF TWNYH AS A PARTY TO THE INDENTURE
By execution of this Tenth Supplemental Indenture, TWNYH agrees that it
shall be a party to, and shall be subject to, bound by and entitled to the
benefits of, the Indenture as supplemented by this Tenth Supplemental Indenture
until such time, if any, as the TWNYH Guaranty shall be terminated pursuant to
Article Two hereof.
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 one and the same instrument.
* * * *
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IN WITNESS WHEREOF, the parties hereto have caused this Tenth Supplemental
Indenture to be duly executed by their respective officers or agents as of the
day and year first above written.
HISTORIC TW INC.,
By
/s/ Edward B. Ruggiero
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Name: Edward B. Ruggiero
Title: Vice President
TIME WARNER ENTERTAINMENT
COMPANY, L.P.,
By
/s/ Edward B. Ruggiero
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Name: Edward B. Ruggiero
Title: Vice President
TIME WARNER CABLE INC.,
By
/s/ Edward B. Ruggiero
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Name: Edward B. Ruggiero
Title: Vice President & Asst.
Treasurer
TW NY CABLE HOLDING INC.,
By
/s/ Edward B. Ruggiero
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Name: Edward B. Ruggiero
Title: Vice President &
Asst. Treasurer
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TIME WARNER NY CABLE LLC,
By
/s/ Edward B. Ruggiero
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Name: Edward B. Ruggiero
Title: Vice President & Asst.
Treasurer
AMERICAN TELEVISION AND
COMMUNICATIONS CORPORATION,
By
/s/ Edward B. Ruggiero
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Name: Edward B. Ruggiero
Title: Vice President
WARNER COMMUNICATIONS INC.,
By
/s/ Edward B. Ruggiero
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Name: Edward B. Ruggiero
Title: Vice President
THE BANK OF NEW YORK,
By
/s/ Geovanni Barris
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Name: Geovanni Barris
Title: Vice President