EXECUTION COPY
SEVENTH SUPPLEMENTAL INDENTURE (this "Seventh
Supplemental Indenture") dated as of January 11, 2001, among
TIME WARNER COMPANIES, INC. (formerly known as Time Warner
Inc.), a Delaware corporation (the "Company"), AOL TIME
WARNER INC., a Delaware corporation ("AOL Time Warner"),
AMERICA ONLINE, INC., a Delaware corporation ("America
Online"), TIME WARNER INC. (formerly known as TW Inc.), a
Delaware corporation ("TWI"), XXXXXX BROADCASTING SYSTEM,
INC., a Georgia corporation ("TBS") and THE CHASE MANHATTAN
BANK (formerly known as Chemical 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, as amended
from time to time, by way of 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"),
the Third Supplemental Indenture, dated as of December 31, 1996, among the
Company, TWI and the Trustee (the "Third Supplemental Indenture"), the Fourth
Supplemental Indenture, dated as of December 17, 1997, among the Company, TWI,
TBS and the Trustee (the "Fourth Supplemental Indenture"), the Fifth
Supplemental Indenture, dated as of January 12, 1998, among the Company, TWI,
TBS and the Trustee (the "Fifth Supplemental Indenture"), and the Sixth
Supplemental Indenture, dated as of March 17, 1998, among the Company, TWI, TBS
and the Trustee (the "Sixth Supplemental Indenture") (the Original Indenture, as
so amended, is herein called the "Indenture"), 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
after the date hereof);
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WHEREAS, pursuant to a Second Amended and Restated Agreement and Plan
of Merger, dated as of January 10, 2000, among AOL Time Warner, America Online,
TWI, America Online Merger Sub Inc. and Time Warner Merger Sub Inc., America
Online and TWI will become wholly owned subsidiaries of AOL Time Warner;
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;
WHEREAS TBS has, by way of the Fourth Supplemental Indenture,
unconditionally guaranteed the obligations of the Company under the Indenture
(the "TBS Guarantee") and has extended to the Holders of Securities certain
rights and privileges in connection with the TBS Guarantee;
WHEREAS TWI has, by way of the Sixth Supplemental Indenture,
unconditionally guaranteed the obligations of TBS under the TBS Guarantee (the
"Additional TWI Guarantee", and together with the TWI Guarantee, the "TWI
Guarantees") and extended to the Holders of Securities certain rights and
privileges in connection with the TWI Guarantees;
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 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 Seventh Supplemental
Indenture to supplement and amend the Indenture in certain respects as it
applies to Securities issued thereunder;
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WHEREAS America Online desires to unconditionally and irrevocably
guarantee all the monetary obligations of TWI under the TWI Guarantees
(including obligations to the Trustee) and the full and punctual performance
within applicable grace periods of all other obligations of TWI under the TWI
Guarantees (the "America Online Guarantee") and to extend to the Holders of
Securities certain rights and privileges in connection with the America Online
Guarantee;
WHEREAS AOL Time Warner desires to unconditionally and irrevocably
guarantee all the monetary obligations of (a) America Online under the America
Online Guarantee and (b) TWI under the TWI Guarantees (including in each case
obligations to the Trustee), and the full and punctual performance within
applicable grace periods of all other obligations of America Online under the
America Online Guarantee and TWI under the TWI Guarantees (the "AOL Time Warner
Guarantee") and to extend to the Holders of Securities certain rights and
privileges in connection with the AOL Time Warner Guarantee; and
WHEREAS the Company, AOL Time Warner, America Online, TWI and TBS have
requested that the Trustee execute and deliver this Seventh Supplemental
Indenture and all requirements necessary to make this Seventh Supplemental
Indenture a valid instrument in accordance with its terms and to make the
America Online Guarantee the valid obligation of America Online and the AOL Time
Warner Guarantee the valid obligation of AOL Time Warner, and the execution and
delivery of this Seventh Supplemental Indenture has been duly authorized in all
respects.
NOW, THEREFORE, the Company, AOL Time Warner, America Online, TWI, TBS
and the Trustee hereby agree that the following Sections of this Seventh
Supplemental Indenture supplement the Indenture with respect to Securities
issued thereunder:
SECTION 1. Definitions. Capitalized terms used herein and not defined
herein have the meanings ascribed to such terms in the Indenture.
SECTION 2. The America Online Guarantee. (a) America Online
irrevocably and unconditionally guarantees, to each Holder of Securities
(including each Holder of Securities issued under the Indenture after the
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date of this Seventh Supplemental Indenture) and to the Trustee and its
successors and assigns, (i) the full and punctual payment of all monetary
obligations of TWI under the TWI Guarantees (including obligations to the
Trustee) and (ii) the full and punctual performance within applicable grace
periods of all other obligations of TWI under the TWI Guarantee. America Online
further agrees that its obligations hereunder shall be unconditional
irrespective of the absence or existence of any action to enforce the same, the
recovery of any judgment against the Company, AOL Time Warner, America Online,
TWI or TBS (except to the extent such judgment is paid) or any waiver or
amendment of the provisions of the Indenture or the Securities to the extent
that any such action or any similar action would otherwise constitute a legal or
equitable discharge or defense of a guarantor (except that such waiver or
amendment shall be effective in accordance with its terms).
(b) America Online further agrees that the America Online Guarantee
constitutes a guarantee of payment, performance and compliance and not merely of
collection.
(c) America Online further agrees to waive presentment to, demand of
payment from and protest to the Company of any of the AOL Time Warner Guarantee,
the America Online Guarantee, the TWI Guarantees or the TBS Guarantee, and also
waives diligence, notice of acceptance of the America Online Guarantee,
presentment, demand for payment, notice of protest for nonpayment, the filing of
claims with a court in the event of merger or bankruptcy of the Company and any
right to require a proceeding first against the Company or any other Person. The
obligations of America Online shall not be affected by any failure or policy on
the part of the Trustee to exercise any right or remedy under the Indenture or
the Securities of any series.
(d) The obligation of America Online to make any payment hereunder may
be satisfied by causing the Company, AOL Time Warner, TWI or TBS to make such
payment. If any Holder of any Security or the Trustee is required by any court
or otherwise to return to the Company, AOL Time Warner, America Online, TWI or
TBS, or any custodian, trustee, liquidator or other similar official acting in
relation to any of the Company, AOL Time Warner, America Online, TWI or TBS, any
amount paid by any of them to the Trustee or such Holder, the America Online
Guarantee, to the extent theretofore discharged, shall be reinstated in full
force and effect.
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(e) America Online 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 America Online
Guarantee.
(f) Any term or provision of this Seventh Supplemental Indenture to
the contrary notwithstanding, the maximum aggregate amount of the America Online
Guarantee shall not exceed the maximum amount that can be hereby guaranteed
without rendering this Seventh Supplemental Indenture, as it relates to America
Online, voidable under applicable law relating to fraudulent conveyance or
fraudulent transfer or similar laws affecting the rights of creditors generally.
SECTION 3. The AOL Time Warner Guarantee. (a) AOL Time Warner
irrevocably and unconditionally guarantees, to each Holder of Securities
(including each Holder of Securities issued under the Indenture after the date
of this Seventh Supplemental Indenture) and to the Trustee and its successors
and assigns, (i) the full and punctual payment of all monetary obligations of
America Online under the America Online Guarantee and TWI under the TWI
Guarantees (including in each case obligations to the Trustee) and (ii) the full
and punctual performance within applicable grace periods of all other
obligations of America Online under the America Online Guarantee and TWI under
the TWI Guarantees. AOL Time Warner further agrees that its obligations
hereunder shall be unconditional irrespective of the absence or existence of any
action to enforce the same, the recovery of any judgment against the Company,
AOL Time Warner, America Online, TWI or TBS (except to the extent such judgment
is paid) or any waiver or amendment of the provisions of the Indenture or the
Securities to the extent that any such action or any similar action would
otherwise constitute a legal or equitable discharge or defense of a guarantor
(except that such waiver or amendment shall be effective in accordance with its
terms).
(b) AOL Time Warner further agrees that the AOL Time Warner Guarantee
constitutes a guarantee of payment, performance and compliance and not merely of
collection.
(c) AOL Time Warner further agrees to waive presentment to, demand of
payment from and protest to the Company of any of the AOL Time Warner Guarantee,
the America Online Guarantee, the TWI Guarantees or the TBS Guarantee,
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and also waives diligence, notice of acceptance of the AOL Time Warner
Guarantee, presentment, demand for payment, notice of protest for nonpayment,
the filing of claims with a court in the event of merger or bankruptcy of the
Company and any right to require a proceeding first against the Company or any
other Person. The obligations of AOL Time Warner shall not be affected by any
failure or policy on the part of the Trustee to exercise any right or remedy
under the Indenture or the Securities of any series.
(d) The obligation of AOL Time Warner to make any payment hereunder
may be satisfied by causing the Company, America Online, TWI or TBS to make such
payment. If any Holder of any Security or the Trustee is required by any court
or otherwise to return to the Company, AOL Time Warner, America Online, TWI or
TBS, or any custodian, trustee, liquidator or other similar official acting in
relation to any of the Company, AOL Time Warner, America Online, TWI or TBS, any
amount paid by any of them to the Trustee or such Holder, the AOL Time Warner
Guarantee, to the extent theretofore discharged, shall be reinstated in full
force and effect.
(e) AOL Time Warner 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 AOL Time Warner
Guarantee.
(f) Any term or provision of this Seventh Supplemental Indenture to
the contrary notwithstanding, the maximum aggregate amount of the AOL Time
Warner Guarantee shall not exceed the maximum amount that can be hereby
guaranteed without rendering this Seventh Supplemental Indenture, as it relates
to AOL Time Warner, voidable under applicable law relating to fraudulent
conveyance or fraudulent transfer or similar laws affecting the rights of
creditors generally.
SECTION 4. Amendment to Defeasance upon Deposit of Funds or Government
Obligations. Section 403 of Article Four of the Indenture is hereby supplemented
and amended by adding the following sentence after the two sentences following
clause (5) and before the definition of "Discharged":
"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, each of AOL Time Warner and America
Online shall be deemed to have paid and discharged the entire indebtedness
represented by, and obligations under, the AOL Time Warner Guarantee and
the America Online 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, each of AOL Time Warner
and America Online 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 5. 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:
"; or (iv) default in the performance, or breach, of any covenant or
warranty of AOL Time Warner or America Online 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 AOL Time Warner
or America Online, as the case may be, by the Trustee or to AOL Time Warner
or America Online, as the case may be, 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
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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:
"; or (iv) the entry of an order for relief against AOL Time Warner or
any Material U.S. Subsidiary thereof under 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 AOL Time Warner or any
Material U.S. Subsidiary thereof 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 AOL Time Warner or any
Material U.S. Subsidiary thereof 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
AOL Time Warner or any Material U.S. Subsidiary thereof or of any
substantial part of its property, 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:
"; or (iv) the consent by AOL Time Warner or any Material U.S.
Subsidiary thereof 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
AOL Time Warner or any Material U.S. Subsidiary thereof or of any
substantial part of its property, 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 AOL Time
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Warner or any Material U.S. Subsidiary thereof in furtherance of any such
action; or".
SECTION 6. 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, AOL Time Warner, America Online, 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 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 AOL Time Warner, America
Online, TWI or TBS, the corporation formed by such consolidation or into
which AOL Time Warner, America Online, TWI or TBS is merged or the Person
which acquires by conveyance or transfer the properties and assets of AOL
Time Warner, America Online, 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 AOL Time
Warner, America Online, TWI or TBS to be performed or observed;".
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(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, AOL Time Warner, America Online, TWI or TBS substantially as an
entirety in accordance with Section 801, the successor Person formed by
such consolidation or into which the Company, AOL Time Warner, America
Online, 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, AOL Time Warner, America Online, 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, AOL Time Warner, America Online,
TWI or TBS herein, as the case may be. In the event of any such conveyance
or transfer, the Company, AOL Time Warner, America Online, TWI or TBS, as
the case may be, as the predecessor 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 7. Supplemental Indentures. Clauses (1) and (2) of Section 901
of Article Nine of the Indenture are supplemented and amended to read in their
entirety as follows:
"(1) to evidence the succession of another corporation or Person to
the Company, AOL Time Warner, America Online, TWI or TBS, and the
assumption by any such successor of the respective covenants of the
Company, AOL Time Warner, America Online, TWI or TBS herein and in the
Securities contained; or
"(2) to add to the covenants of the Company, AOL Time Warner, America
Online, TWI or TBS or to surrender any right or power herein conferred upon
the Company, AOL Time Warner, America Online, 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
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expressly being made solely for the benefit of one or more specified
series); or".
SECTION 8. This Seventh Supplemental Indenture. This Seventh
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 9. GOVERNING LAW. THIS SEVENTH SUPPLEMENTAL INDENTURE SHALL BE
GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 10. Counterparts. This Seventh 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 buy one
instrument.
SECTION 11. Headings. The headings of this Seventh Supplemental
Indenture are for reference only and shall not limit or otherwise affect the
meaning hereof.
SECTION 12. Trustee Not Responsible for Recitals. The recitals herein
contained are made by the Company, AOL Time Warner, America Online, 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 Seventh
Supplemental Indenture.
SECTION 13. Separability. In case any one or more of the provisions
contained in this Seventh Supplemental Indenture or in the Securities shall for
any reason be held to be invalid, illegal, or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other provisions
of this Seventh Supplemental Indenture or of the Securities, but this Seventh
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 Seventh
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
AOL TIME WARNER INC.,
By /s/ J. Xxxxxxx Xxxxx
----------------------------
Name: J. Xxxxxxx Xxxxx
Title: Exec. Vice President
and Chief Financial Officer
AMERICA ONLINE, INC.,
By /s/ Xxxx X. Xxxxxxxxx
----------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Exec. 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
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THE CHASE MANHATTAN BANK, as Trustee,
By /s/ X. Xxxxxxxx
----------------------------
Name: X. Xxxxxxxx
Title: Asst. Vice President
