Exhibit 99.1
EXECUTION COPY
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TIME WARNER ENTERTAINMENT COMPANY, L.P.,
TIME WARNER CABLE INC., AND
TW NY CABLE HOLDING INC.,
TO
THE BANK OF NEW YORK,
TRUSTEE,
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Eleventh Supplemental Indenture
Dated as of November 2, 2006
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ELEVENTH SUPPLEMENTAL INDENTURE dated as of November 2, 2006 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 ("TWC"), TW NY CABLE HOLDING INC.,
a corporation duly organized and existing under the laws of the State of
Delaware ("TWNYCH") and THE BANK OF NEW YORK, a banking corporation duly
organized and existing under the laws of New York, as Trustee (the
"Trustee") and solely for the purpose of terminating the TW Partner
Guaranties and ceasing to be a party to the Indenture (as defined below)
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 solely
for the purpose of ceasing to be a party to the Indenture HISTORIC TW INC.
(f/k/a "Time Warner Inc."), a corporation duly organized and existing under
the laws of the State of Delaware ("HTW") and TIME WARNER NY CABLE LLC, a
limited liability company duly organized and existing under the laws of the
State of Delaware ("TWNY").
RECITALS
Upon execution and delivery of this Eleventh Supplemental Indenture
TWE, TWC, TWNYCH and the Trustee will be parties to that Indenture dated as
of April 30, 1992, as amended by the First Supplemental Indenture dated as
of June 30, 1992 (the "First Supplemental Indenture"), 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, the Ninth
Supplemental Indenture dated as of November 1, 2004 (the "Ninth
Supplemental Indenture") and the Tenth Supplemental Indenture dated as of
October 18, 2006 (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
TWC and TWNYCH.
Pursuant to the terms of Section 804 of the Indenture HTW was released
and discharged from all of its obligations under the Time Warner Guaranty
and relieved of all obligations and covenants under the Indenture and the
Securities.
On October 18, 2006 TWNY ceased to be a general partner of TWE and
pursuant to the terms of the Ninth Supplemental Indenture ceased to be a
party to and bound by the Indenture.
TWE, TWC, TWNYCH, each of the TW Partners, HTW and TWNY have duly
authorized the execution and delivery of this Eleventh Supplemental
Indenture to (a) amend the guaranty of the Securities by TWC (the "TWC
Guaranty"), (b) to remove American Television and Communications
Corporation and Warner Communications
Inc. from Exhibit A to the First Supplemental Indenture and terminate the
TW Partner Guaranties, (c) to modify the provision of Section 704 of the
Indenture so that in the event TWE is not subject to the reporting
obligations of Section 13 or 15(d) of the Exchange Act, to allow the parent
of TWE to satisfy TWE's reporting obligations under the Indenture by
providing Holders with quarterly and annual reports that such parent would
be required to file with the Commission pursuant to Section 13 of the
Securities Exchange Act of 1934 ("Exchange Act") if it and TWE were subject
to such Section, and (d) to acknowledge and confirm that following the
execution and delivery of this Eleventh Supplemental Indenture the only
parties to the Indenture will be TWE, TWC, TWNY and the Trustee, subject in
each case to the terms and conditions described herein.
This Eleventh Supplemental Indenture is being executed pursuant to and
in accordance with Section 902 of the Indenture.
All things necessary to make this Eleventh Supplemental Indenture a
valid and binding agreement of TWE, TWC, TWNYCH, the TW Partners, HTW and
TWNY have been done.
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 Eleventh 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 Eleventh 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 Eleventh 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
AMENDMENTS TO TWC GUARANTY
The TWC Guaranty provided for in Article Two of the Eighth
Supplemental Indenture shall hereby, upon execution and delivery of this
Eleventh Supplemental Indenture by each of the parties hereto, be amended
by deleting such Article in its entirety and replacing it with the
following:
For value received, TWC and, subject to the terms of the Indenture,
its successors and assigns, hereby fully and unconditionally guarantees to
each Holder of 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, TWC 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.
TWC 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. TWC 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 TWC
Guaranty will not be discharged except by complete payment of the payment
and other obligations contained in such Security or in this Article Two.
TWC 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 TWC for the enforcement of this TWC Guaranty
and against TWE (as Obligor). The
obligations of TWC 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 TWC hereunder whether or not
(i) an action or proceeding is brought against TWE, (ii) TWE is joined in
any such action or proceeding against TWC 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 TWC
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, 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 Guaranty, to the extent theretofore
discharged, shall be reinstated in full force and effect. TWC 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 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 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 Guaranty.
ARTICLE THREE
AMENDMENTS TO EXHIBIT A TO THE FIRST SUPPLEMENTAL INDENTURE
Exhibit A to the First Supplemental Indenture shall be amended and
restated in its entirety as set forth on Exhibit A hereto.
ARTICLE FOUR
TERMINATION OF TW PARTNER GUARANTIES
The TW Partner Guaranties shall terminate and cease to be effective
upon the execution and delivery of this Eleventh Supplemental Indenture by
each of the parties hereto and each of the TW Partners shall be released
and discharged from all of its obligations under the TW Partner Guaranties
and each of the TW Partners shall be relieved of all obligations and
covenants under the Indenture and the Securities.
ARTICLE FIVE
AMENDMENTS TO SECTION 704 of the INDENTURE
Section 704 of the Indenture shall be amended by deleting such section
in its entirety and replacing it with the following:
SECTION 704. Reports by Time Warner Cable Inc.
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So long as any Securities remain outstanding, the Obligor shall
provide quarterly and annual reports of either the Obligor or the
Ultimate Parent Guarantor of the Securities (such entity, the
"Reporting Entity") that the Reporting Entity would be required to
file under Section 13 of the Securities Exchange Act of 1934 (the
"Exchange Act") if the Reporting Entity were then subject to such
Section 13; provided, however, that such reports shall not be required
to contain any financial information with respect to any other obligor
or guarantor of the Securities other than the Reporting Entity,
exhibits or officer's certifications which, in each case, are required
pursuant to the requirements of Section 13 of the Exchange Act and the
rules and regulations thereunder unless the Reporting Entity is then
actually subject to such Section 13 or 15(d) of the Exchange Act with
respect to the Securities. Such reports shall be delivered to the
Trustee within 15 days after such reports are or would be required to
be filed with the Commission and made available to Holders on request.
For purposes hereof, "Ultimate Parent Guarantor" shall mean on
the date hereof, TWC, and, thereafter, any other Person (x) as to
which the Obligor is a Subsidiary, (y) which has fully and
unconditionally guaranteed to the Holders the payment of all principal
and interest on the Securities when due, and (z) which is not itself a
Subsidiary of any other Person which has fully and unconditionally
guaranteed to the Holders the payment of all principal and interest on
the Securities when due.
In addition, the Obligor shall comply with its obligations under
Section 314(a) of the Trust Indenture Act.
Delivery of such reports to the Trustee is for informational
purposes only and the Trustee's receipt of such shall not constitute
constructive notice of any information contained therein or
determinable from information contained therein, including the
Obligor's compliance with any of its covenants hereunder (as to which
the Trustee is entitled to rely exclusively on Officers'
Certificates).
ARTICLE SIX
CONFIRMATION OF THE PARTIES TO THE INDENTURE
By executing this Eleventh Supplemental Indenture, each of the parties
to this Eleventh Supplemental Indenture hereby acknowledges and confirms
that after giving effect hereto, the only parties to the Indenture shall be
the Obligor, TWC, TWNYCH and the Trustee, and that all other affiliates of
the Obligor heretofore party to the Indenture shall not be subject to or
bound by the 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 one and the same instrument.
* * * *
IN WITNESS WHEREOF, the parties hereto have caused this Eleventh
Supplemental Indenture to be duly executed by their respective officers or
agents as of the day and year first above written.
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
THE BANK OF NEW YORK,
by /s/ Geovanni Barris
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Name: Geovanni Barris
Title: Vice President
Solely for the purposes of terminating the TW Partner Guaranties and
ceasing to be a party to the Indenture.
HISTORIC TW INC.,
by /s/ Edward B. Ruggiero
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Name: Edward B. Ruggiero
Title: Vice President
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
EXHIBIT A
Guaranteed
TW Partners Percentage
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None 0%