EXECUTION COPY
FOURTH SUPPLEMENTAL INDENTURE (this "Fourth
Supplemental Indenture") dated as of December 17,
1997, among TIME WARNER COMPANIES, INC., a Delaware
corporation formerly known as Time Warner, Inc. (the
"Company"), TIME WARNER INC., a Delaware corporation
formerly known as TW Inc. ("TWI"), XXXXXX
BROADCASTING SYSTEM, INC., a Georgia corporation
("TBS"), and THE CHASE MANHATTAN BANK, a New York
banking corporation, as successor trustee (the
"Trustee").
WHEREAS the Company has executed and delivered to the Trustee
an Indenture (the "Original Indenture"), dated as of January 15, 1993, providing
for the issuance and sale by the Company from time to time of its senior debt
securities (the "Securities"), which term shall include any Securities issued
under the Indenture (as defined below) after the date hereof, as amended by the
First Supplemental Indenture, dated as of June 15, 1993, between the Company and
the Trustee (the "First Supplemental Indenture"), the Second Supplemental
Indenture, dated as of October 10, 1996, among the Company, TWI and the Trustee
(the "Second Supplemental Indenture") and the Third Supplemental Indenture,
dated as of December 31, 1996 among the Company, TWI and the Trustee (the "Third
Supplemental Indenture") (the Original Indenture, as amended by the First
Supplemental Indenture, Second Supplemental Indenture and Third Supplemental
Indenture is herein called the "Indenture");
WHEREAS TWI has, by way of the Second Supplemental Indenture,
unconditionally guaranteed the obligations of the Company under the Indenture
(the "TWI Guarantee") and has, by way of the Third Supplemental Indenture,
extended to the Holders of Securities certain rights and privileges in
connection with the TWI Guarantee; and
WHEREAS Section 901(5) of the Indenture permits the Company,
when authorized by a resolution of the Board of Directors of the Company, and
the Trustee, at any time and from time to time, to enter into one or more
indentures supplemental to the Indenture, in form satisfactory to the Trustee,
for the purpose of adding to the rights of the Holders of the Securities;
WHEREAS Section 901(7) of the Indenture permits
the Company, when authorized by a resolution of the Board of
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Directors of the Company, and the Trustee, at any time and from time to time to
enter into one or more indentures supplemental to the Indenture, in form
satisfactory to the Trustee, for the purpose of adding additional Events of
Default in respect of the Securities;
WHEREAS the Company proposes in and by this Fourth
Supplemental Indenture to supplement and amend the Indenture in certain respects
as it applies to Securities issued thereunder and TBS desires to unconditionally
and irrevocably guarantee the full and punctual payment of principal of and
interest on the Securities when due, whether at maturity, by acceleration, by
redemption or otherwise, and all other monetary obligations of the Company under
the Indenture (including obligations to the Trustee) and the Securities, and the
full and punctual performance within applicable grace periods of all other
obligations of the Company under the Indenture and the Securities (the "TBS
Guarantee") and to extend to the Holders of Securities certain rights and
privileges in connection with the guarantee of the Securities by TBS;
WHEREAS the Company, TWI and TBS have requested that the
Trustee execute and deliver this Fourth Supplemental Indenture and all
requirements necessary make this Fourth Supplemental Indenture a valid
instrument in accordance with its terms and to make the TBS Guarantee the valid
obligation of TBS, and the execution and delivery of this Fourth Supplemental
Indenture has been duly authorized in all respects.
NOW THEREFORE, the Company, TWI, TBS and the Trustee hereby
agree that the following Sections of this Fourth Supplemental Indenture
supplement the Indenture with respect to Securities issued thereunder:
SECTION 1. Definitions. (a) Capitalized terms used herein and
not defined herein have the meanings ascribed to such terms in the Indenture.
(b) Article I, Section 101, of the Indenture is hereby
supplemented to add the following definitions:
"TWI" means Time Warner Inc., a Delaware corporation formerly
known as TW Inc. and formerly defined in both the Second Supplemental
Indenture and Third Supplemental Indenture as the "Guarantor".
"TBS" means Xxxxxx Broadcasting System, Inc., a
Georgia corporation.
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(c) All references to the Guarantor in the Second Supplemental
Indenture and Third Supplemental Indenture are deemed to be references to TWI.
SECTION 2. The TBS Guarantee. (a) TBS irrevocably and
unconditionally guarantees, to each Holder of Securities (including each Holder
of Securities issued under the Indenture after the date of this Fourth
Supplemental Indenture) and to the Trustee and its successors and assigns, (i)
the full and punctual payment of principal of and interest on the Securities
when due, whether at maturity, by acceleration, by redemption or otherwise, and
all other monetary obligations of the Company under the Indenture (including
obligations to the Trustee) and the Securities and (ii) the full and punctual
performance within applicable grace periods of all other obligations of the
Company under the Indenture and the Securities.
(b) TBS further agrees that the TBS Guarantee constitutes a
guarantee of payment, performance and compliance and not merely of collection.
(c) The obligation of TBS to make any payment hereunder may be
satisfied by causing the Company to make such payment.
(d) TBS also agrees to pay any and all costs and expenses
(including reasonable attorneys' fees) incurred by the Trustee or any Holder of
Securities in enforcing any of their respective rights under the TBS Guarantee.
(e) Any term or provision of this Fourth Supplemental
Indenture to the contrary notwithstanding, the maximum aggregate amount of the
TBS Guarantee shall not exceed the maximum amount that can be hereby guaranteed
without rendering this Fourth Supplemental Indenture, as it relates to TBS,
voidable under applicable law relating to fraudulent conveyance or fraudulent
transfer or similar laws affecting the rights of creditors generally.
SECTION 3. Amendment to Defeasance upon Deposit of Funds or
Government Obligations. Section 403 of Article 4 of the Indenture is hereby
supplemented and amended by adding the following sentence after the sentence
following clause (5) and before the definition of "Discharged" in Section 403 of
Article 4 of the Indenture:
"If the Company, at its option, with respect to a series of
Securities, satisfies the applicable conditions pursuant to either
clause (a) or (b) above,
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then (x), in the event the Company satisfies the conditions to clause
(a) and elects clause (a) to be applicable, TBS shall be deemed to have
paid and discharged the entire indebtedness represented by, and
obligations under, the TBS Guarantee of the Securities of such series
and to have satisfied all the obligations under this Indenture relating
to the Securities of such series and (y) in either case, TBS shall
cease to be under any obligation to comply with any term, provision or
condition set forth in Article Eight (and any other covenants
applicable to such Securities that are determined pursuant to Section
301 to be subject to this provision), and clause (5)(ii) of Section 501
(and any other Events of Default applicable to such series of
Securities that are determined pursuant to Section 301 to be subject to
this provision) shall be deemed not to be an Event of Default with
respect to such series of Securities at any time thereafter."
SECTION 4. Amendments to the Events of Default and Remedies.
(a) Clause (5) of Section 501 of Article Five of the Indenture is hereby amended
by adding thereto at the end thereof the following:
"(iii) default in the performance, or breach, of any covenant
or warranty of TBS in this Indenture (as it may be supplemented from
time to time) in respect of the Securities of such series (other than a
covenant or warranty in respect of the Securities of such series a
default in the performance of which or the breach of which is elsewhere
in this Section specifically dealt with), all of such covenants and
warranties in the Indenture (as so supplemented) which are not
expressly stated to be for the benefit of a particular series of
Securities being deemed in respect of the Securities of all series for
this purpose, and continuance of such default or breach for a period of
90 days after there has been given, by registered or certified mail, to
TBS by the Trustee or to TBS and the Trustee by the Holders of at least
25% in principal amount of the Outstanding Securities of such series, a
written notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default"
hereunder; or".
(b) Clause (6) of Section 501 of Article Five of the Indenture
is hereby amended by adding thereto at the end thereof the following:
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"(iii) the entry of an order for relief against TBS under
Xxxxx 00, Xxxxxx Xxxxxx Code (the "Federal Bankruptcy Act") by a court
having jurisdiction in the premises or a decree or order by a court
having jurisdiction in the premises adjudging TBS a bankrupt or
insolvent under any other applicable Federal or State law, or the entry
of a decree or order approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in respect
of TBS under the Federal Bankruptcy Act or any other applicable Federal
or State law, or appointing a receiver, liquidator, assignee, trustee,
sequestrator (or other similar official) of TBS or of any substantial
part of its properties, or ordering the winding up or liquidation of
its affairs, and the continuance of any such decree or order unstayed
and in effect for a period of 90 consecutive days; or".
(c) Clause (7) of Section 501 of Article Five of the Indenture
is hereby amended by adding thereto at the end thereof the following:
"(iii) the consent by TBS to the institution of bankruptcy or
insolvency proceedings against it, or the filing by it of a petition or
answer or consent seeking reorganization or relief under the Federal
Bankruptcy Act or any other applicable Federal or State law, or the
consent by it to the filing of any such petition or to the appointment
of a receiver, liquidator, assignee, trustee, sequestrator (or other
similar official) of TBS or of any substantial part of its properties
or the making by it of an assignment for the benefit of creditors, or
the admission by it in writing of its inability to pay its debts
generally as they become due, or the taking of corporate action by TBS
in furtherance of any such action; or".
SECTION 5. Amendments to Article Eight. (a) The introductory
clause and clause (1) of Section 801 of Article Eight of the Indenture is hereby
supplemented and amended to read in its entirety as follows:
"Section 801. Consolidation, Merger, Conveyance or Transfer on
Certain Terms. None of the Company, TWI or TBS shall consolidate with
or merge into any other corporation or convey or transfer its
properties and assets substantially as an entirety to any Person,
unless:
(1)(a) In the case of the Company, the corporation formed by
such consolidation or into which
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the Company is merged or the Person which acquires by conveyance or
transfer the properties and assets of the Company substantially as an
entirety shall be organized and existing under the laws of the United
States of America or any State or the District of Columbia, and shall
expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, the due
and punctual payment of the principal of (and premium, if any) and
interest on all the Securities and the performance of every covenant of
this Indenture (as supplemented from time to time) on the part of the
Company to be performed or observed; (b) in the case of TWI or TBS, the
corporation formed by such consolidation or into which TWI or TBS is
merged or the Person which acquires by conveyance or transfer the
properties and assets of TWI or TBS substantially as an entirety shall
be organized and existing under the laws of the United States of
America or any State or the District of Columbia, and shall expressly
assume, by an indenture supplemental hereto, executed and delivered to
the Trustee, in form satisfactory to the Trustee, the performance of
every covenant of this Indenture (as supplemented from time to time) on
the part of TWI or TBS to be performed or observed;"
(b) Section 802 of Article Eight of the Indenture is
supplemented and amended to read in its entirety as follows:
"Section 802. Successor Person Substituted. Upon any
consolidation or merger, or any conveyance or transfer of the
properties and assets of the Company, TWI or TBS substantially as an
entirety in accordance with Section 801, the successor person formed by
such consolidation or into which the Company, TWI or TBS is merged or
to which such conveyance or transfer is made shall succeed to, and be
substituted for, and may exercise every right and power of, the
Company, TWI or TBS, as the case may be, under this Indenture with the
same effect as if such successor had been named as the Company, TWI or
TBS herein, as the case may be. In the event of any such conveyance or
transfer, the predecessor as the Company, TWI or TBS, as the case may
be, shall be discharged from all obligations and covenants under this
Indenture and the Securities and may be dissolved, wound up or
liquidated at any time thereafter."
SECTION 6. Supplemental Indentures. Clauses (1) and (2) of
Section 901 of Article Nine of the Indenture are
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supplemented and amended to read in their entirety as follows:
"(1) to evidence the succession of another corporation or
Person to the Company, TWI or TBS, and the assumption by any such
successor of the respective covenants of the Company, TWI or TBS herein
and in the Securities contained; or
"(2) to add to the covenants of the Company, TWI or TBS, or to
surrender any right or power herein conferred upon the Company, TWI or
TBS, for the benefit of the Holders of the Securities of any or all
series (and if such covenants or the surrender of such right or power
are to be for the benefit of less than all series of Securities,
stating that such covenants are expressly being included or such
surrenders are expressly being made solely for the benefit of one or
more specified series); or".
SECTION 7. This Fourth Supplemental Indenture. This Fourth
Supplemental Indenture shall be construed as supplemental to the Indenture and
shall form a part of it, and the Indenture is hereby incorporated by reference
herein and each is hereby ratified, approved and confirmed.
SECTION 8. GOVERNING LAW. THIS FOURTH SUPPLEMENTAL INDENTURE
SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK.
SECTION 9. Counterparts. This Fourth Supplemental Indenture
may be executed in two or more counterparts, each of which shall constitute an
original, but all of which when taken together shall constitute but one
instrument.
SECTION 10. Headings. The headings of this Fourth Supplemental
Indenture are for reference only and shall not limit or otherwise affect the
meaning hereof.
SECTION 11. Trustee Not Responsible for Recitals. The recitals
herein contained are made by the Company, TWI and TBS, and not by the Trustee,
and the Trustee assumes no responsibility for the correctness thereof. The
Trustee shall not be responsible in any manner whatsoever for or in respect of
the validity or sufficiency of this Fourth Supplemental Indenture.
SECTION 12. Separability. In case any one or more of the
provisions contained in this Fourth Supplemental Indenture or in the Securities
shall for any reason be held
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to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provisions of the
Fourth Supplemental Indenture or of the Securities, but this Fourth Supplemental
Indenture and the Securities shall be construed as if such invalid or illegal or
unenforceable provision had never been contained herein or therein.
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IN WITNESS WHEREOF, the parties hereto have caused this Fourth
Supplemental Indenture to be duly executed by their respective authorized
officers as of the date first written above.
TIME WARNER COMPANIES, INC.,
by /s/ Xxxxxx X. XxXxxxxxx
------------------------------
Name: Xxxxxx X. XxXxxxxxx
Title: Vice President
TIME WARNER INC.,
by /s/ Xxxxxx X. XxXxxxxxx
------------------------------
Name: Xxxxxx X. XxXxxxxxx
Title: Vice President
XXXXXX BROADCASTING SYSTEM, INC.,
by /s/ Xxxxxx X. XxXxxxxxx
-------------------------------
Name: Xxxxxx X. XxXxxxxxx
Title: Vice President
THE CHASE MANHATTAN BANK, as
Trustee,
by /s/ Xxxxxxx Xxxxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Senior Trust Officer
