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EXHIBIT 4.3
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FIRST SUPPLEMENTAL INDENTURE
Dated as of October 19, 1999
SUPPLEMENTING AND AMENDING
THE
INDENTURE
Dated as of March 19, 1996
Between
THE TIMES MIRROR COMPANY
AND
CITIBANK, N.A.,
as Trustee
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FIRST SUPPLEMENTAL INDENTURE (this "Supplement"), dated as of October
19, 1999, between The Times Mirror Company, a Delaware corporation (the
"Company"), and Citibank, N.A. , a national banking association duly
incorporated and existing under the laws of the United States of America, as
trustee (the "Trustee").
RECITALS OF THE COMPANY
A. The Company has heretofore executed and delivered to the
Trustee an Indenture, dated as of March 19, 1996 (hereinafter sometimes referred
to as the "Indenture"), providing for the issuance from time to time of the
Company's unsecured debentures, notes or other evidence of indebtedness (herein
called the "Securities"), to be issued in one or more series upon the terms and
conditions set forth therein. All capitalized terms used in this Supplement and
not defined herein shall have the meanings specified in the Indenture.
B. The Company has heretofore issued Securities under the
Indenture in the following series:
(1) 4 1/4% Premium Equity Participating Securities due March 15, 2001;
(2) 7 1/4% Debentures due November 15, 2096; and
(3) 6.61% Debentures due September 15, 2027
(the "Existing Securities").
C. Section 901 of the Indenture provides that the Company,
when authorized by a Board Resolution, and the Trustee may enter into one or
more indentures supplemental thereto to make any change that does not adversely
affect the legal rights thereunder of any Holder.
D. The Company and the Trustee desire to enter into this
Supplement, pursuant to Section 901 of the Indenture, to allow the Company to
elect, pursuant to Section 301 of the Indenture, to provide that any series of
the Securities issued after the date hereof may be subject to De-recognition
Defeasance (as defined in this Supplement).
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, it is mutually covenanted and agreed, as follows:
SECTION 1. The changes, modifications and supplements to the
Indenture affected by this Supplement shall be applicable only with respect to,
and govern the terms of,
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Securities hereafter authenticated and delivered under the Indenture (and all
Holders of such Securities shall be deemed to have consented to such changes,
modifications and supplements) and shall not apply to the Existing Securities
unless a separate supplemental indenture with respect to such Existing
Securities specifically incorporates such changes, modifications and
supplements.
SECTION 2. Section 101 of the Indenture is hereby amended by
adding the following definitions:
"Assigned Rights" has the meaning specified in Section 1404.
"Defeased Portion" has the meaning specified in Section 1401.
"Defeasance Termination" means an election by the Company to terminate
its prior exercise of the de-recognition defeasance option pursuant to Section
1404.
"De-recognition Defeasance" has the meaning specified in Section 1407.
"Escrow Account" means the assets deposited with the Escrow Agent by
the Company pursuant to Section 1404.
"Escrow Agent" means any Person authorized by the Company to serve as
escrow agent and shall also include its successors and assigns; provided that
any such Person or its successor shall satisfy the requirements of Section 609
as if such Escrow Agent were to serve as Trustee; and if at any time there is
more than one Person acting as Escrow Agent hereunder, "Escrow Agent" as used
with respect to the Securities of any series shall mean each Escrow Agent with
respect to Securities of that series. The Escrow Agent shall act pursuant to an
escrow agreement which shall be established in connection with a De-recognition
Defeasance, under which the Escrow Agent shall be obligated to hold the assets
in the Escrow Account, including, without limitation, cash, securities or
Assigned Rights, and to hold and apply such assets and the proceeds thereof in
accordance with the applicable provisions of Sections 1404 and 1407.
"Principal Deposit Date" means, in respect of any Security of a series
with respect to which the Company has made an election under Section 1401 to
defease all or part of the principal of such series pursuant to Section 1407,
that date that is the earlier of (i) three (3) Business Days prior to the Stated
Maturity for the payment of principal, or an installment of principal, of such
Security or (ii) the date on which the principal of the Security has become due
and payable pursuant to Section 502.
SECTION 3. Section 1401 of the Indenture is hereby amended to
read in its entirety as follows:
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Section 1401. Company's Option to Effect Defeasance, Covenant Defeasance or
De-recognition Defeasance.
The Company may elect, at its option by either Board
Resolution or an Officers' Certificate at any time, to have any of Section 1402,
Section 1403 or Section 1407 applied to the Outstanding Securities of any series
designated pursuant to Section 301 as being defeasible pursuant to this Article
Fourteen (hereinafter called a "Defeasible Series"), upon compliance with the
conditions set forth below in this Article Fourteen. The Company may elect to
have Section 1407 applied to all or a portion of the principal of the
Outstanding Securities of a Defeasible Series. In the event the Company elects
to have Section 1407 applied to a portion of the principal of the Outstanding
Securities of a series, the portion (the "Defeased Portion") shall be set forth
in the Board Resolution or Officers' Certificate, as applicable, effecting such
partial De-recognition Defeasance, and the principal of each Outstanding
Security of such series shall be deemed to be subject to De-recognition
Defeasance on a pro rata basis.
SECTION 4. Section 1404 of the Indenture is hereby amended to
read in its entirety as follows:
Section 1404. Conditions to Defeasance, Covenant Defeasance or
De-recognition Defeasance.
The following shall be the conditions to application of any of
Section 1402, Section 1403 or Section 1407 to the Outstanding Securities of any
Defeasible Series:
(1) In the case of an election to effect Defeasance under
Section 1402 or Covenant Defeasance under Section 1403, the Company
shall irrevocably have deposited or caused to be deposited with the
Trustee (or another trustee that satisfies the requirements
contemplated by Section 609 and agrees to comply with the provisions of
this Article Fourteen applicable to it) as trust funds in trust for the
purpose of making the following payments, specifically pledged as
security for, and dedicated solely to, the benefit of the Holders of
Outstanding Securities of such series, (A) money in an amount, or (B)
U.S. Government Obligations that through the scheduled payment of
principal and interest in respect thereof (without consideration of any
reinvestment thereof) in accordance with their terms will provide, not
later than one day before the due date of any payment, money in an
amount, or (C) a combination thereof, in each case sufficient, in the
opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to
the Trustee, to pay and discharge, and that shall be applied by the
Trustee (or any such other qualifying trustee) to pay and discharge,
the principal of and any premium and interest on the Securities of such
series on the respective Stated Maturities, in accordance with the
terms of this Indenture and the Securities of such series. As used
herein, "U.S. Government Obligation" means (x) any security that is
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(i) a direct obligation of the United States of America for the payment
of which the full faith and credit of the United States of America is
pledged or (ii) an obligation of a Person controlled or supervised by
and acting as an agency or instrumentality of the United States of
America the payment of which is unconditionally guaranteed as a full
faith and credit obligation by the United States of America, which, in
either case (i) or (ii), is not callable or redeemable at the option of
the issuer thereof, and (y) any depositary receipt issued by a bank (as
defined in Section 3(a)(2) of the Securities Act of 1933, as amended)
as custodian with respect to any U.S. Government Obligation specified
in Clause (x) and held by such custodian for the account of the holder
of such depositary receipt, or with respect to any specific payment of
principal of or interest on any such U.S. Government Obligation;
provided, however, that (except as required by law) such custodian is
not authorized to make any deduction from the amount payable to the
holder of such depositary receipt from any amount received by the
custodian in respect of the U.S. Government Obligation or the specific
payment of principal or interest evidenced by such depositary receipt.
In the case of an election to effect De-recognition Defeasance
under Section 1407, the Company shall, subject to the next succeeding
sentence, irrevocably have deposited or caused to be deposited with the
Escrow Agent assets to be held in the Escrow Account for the benefit of
the Holders of Outstanding Securities of such series sufficient, in the
opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to
the Escrow Agent, to pay and discharge the principal of the Outstanding
Securities of such series (or in the case of an election to effect a
partial De-recognition Defeasance, to pay and discharge the Defeased
Portion of such principal) on the Principal Deposit Date in accordance
with this Indenture, assuming the economic benefits of such assets are
realized in accordance with their terms; provided that such assets
deposited with the Escrow Agent must consist of financial assets
limited to (i) U.S. Government Obligations, (ii) debt securities issued
by one or more U.S. government-sponsored enterprises, (iii) other debt
securities that are rated at the time of deposit Aaa by Xxxxx'x
Investor Services and AAA by Standard & Poor's Rating Services, and
(iv) contracts under which the Escrow Agent has a right to receive
payments from a financial counterparty which payments are secured by a
pledge of any of the foregoing securities ("Assigned Rights"). The
Company shall have the right to exchange all or a portion of the assets
held by the Escrow Agent in the Escrow Account for the benefit of the
Holders of a series of Securities for any other assets meeting the
requirements of the immediately preceding sentence, provided that after
giving effect to such exchange the assets in the Escrow Account are
sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Escrow Agent, to pay and discharge the
principal of the Outstanding Securities of such series (or in the case
of an election to effect a partial De-recognition Defeasance, to pay
and discharge the Defeased Portion of such principal) on the Principal
Deposit Date in accordance with this Indenture, assuming
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the economic benefits of such assets are realized in accordance with
their terms, provided that the Company shall not have any obligation to
exchange or substitute any assets held in the Escrow Account which met
the requirements of the immediately preceding sentence when deposited.
With respect to any series of Securities as to which
De-recognition Defeasance has been elected, if prior to the Principal
Deposit Date for such Securities (i) the Company receives notice that a
material amount of the assets held by the Escrow Agent in the Escrow
Account in respect of such Securities is impaired as to performance or
expected payments, (ii) in the case of assets consisting of Assigned
Rights, the relevant financial contracts have been terminated or
modified according to their terms so as to materially reduce the
expected payments to be received by the Escrow Agent, or (iii) the
Company redeems all or part of the Securities of such series pursuant
to Article Eleven, the Company may notify the Trustee of a Defeasance
Termination, in which case the provisions of Section 1407(4) will apply
with respect to such Securities.
(2) In the case of an election under Section 1402, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that
(A) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling or (B) since the date first set forth
hereinabove, there has been a change in the applicable Federal income
tax law, in either case (A) or (B) to the effect that, and based
thereon such opinion shall confirm that, the Holders of the Outstanding
Securities of such series will not recognize income, gain or loss for
Federal income tax purposes as a result of the deposit, Defeasance and
discharge to be effected with respect to the Securities of such series
and will be subject to Federal income tax on the same amount, in the
same manner and at the same times as would be the case if such deposit,
Defeasance and discharge were not to occur.
(3) In the case of an election under Section 1403 or Section
1407, the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that the Holders of the Outstanding Securities of
such series will not recognize income, gain or loss for Federal income
tax purposes as a result of the deposit and Covenant Defeasance or
De-recognition Defeasance to be effected with respect to the Securities
of such series and will be subject to Federal income tax on the same
amount, in the same manner and at the same times as would be the case
if such deposit and Covenant Defeasance or De-recognition Defeasance
were not to occur.
(4) The Company shall have delivered to the Trustee an
Officers' Certificate to the effect that the Securities of such series,
if then listed on any securities exchange, will not be delisted as a
result of such deposit.
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(5) No Event of Default or event that (after notice or lapse
of time or both) would become an Event of Default shall have occurred
and be continuing at the time of such deposit or, with regard to any
Event of Default or any such event specified in Sections 501(6) and
(7), at any time on or prior to the 90th day after the date of such
deposit (it being understood that this condition shall not be deemed
satisfied until after such 90th day).
(6) Such Defeasance, Covenant Defeasance or De-recognition
Defeasance shall not cause the Trustee to have a conflicting interest
within the meaning of the Trust Indenture Act (assuming all Securities
are in default within the meaning of such Act).
(7) Such Defeasance, Covenant Defeasance or De-recognition
Defeasance shall not result in a breach or violation of, or constitute
a default under, any other agreement or instrument to which the Company
is a party or by which it is bound.
(8) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent with respect to such Defeasance, Covenant
Defeasance or De-recognition Defeasance have been complied with.
(9) Such Defeasance, Covenant Defeasance or De-recognition
Defeasance shall not result in the trust arising from such deposit
constituting an investment company within the meaning of the Investment
Company Act of 1940, as amended, unless such trust shall be qualified
under such Act or exempt from regulation thereunder.
SECTION 5. A new Section 1407 is hereby added to the Indenture
to read in its entirety as follows:
Section 1407. De-recognition Defeasance.
Upon the Company's exercise of the option provided in Section 1401 to
have this Section 1407 apply to the Outstanding Securities of any Defeasible
Series, and satisfaction of the conditions applicable to De-recognition
Defeasance set forth in Section 1404, the Company shall be deemed to be released
from primary liability for the payment of the principal (or, in the case of a
partial De-recognition Defeasance, the Defeased Portion of such principal) of
any Outstanding Securities of a series with respect to which such election has
been made. For this purpose, "De-recognition Defeasance" means that, with
respect to any Outstanding Securities of such series,
(1) on the Principal Deposit Date, unless the Trustee previously
has received notification of a Defeasance Termination, the
Trustee shall make demand on the Escrow Agent to, and the
Escrow Agent shall, deposit with the Trustee,
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irrevocably, any and all cash or securities held in the Escrow
Account. In the event that the Escrow Agent holds assets other
than cash, the Escrow Agent shall, pursuant to the terms of
the escrow, sell such assets for cash or, in the case of
assets consisting of Assigned Rights, shall realize on and
sell for cash the assets pledged as security, and shall
irrevocably deposit the proceeds therefrom with the Trustee.
The Trustee shall, for the benefit of the Holders of such
Securities, hold such cash until the earlier of (a) the Stated
Maturity of such Securities or (b) the date on which the
principal of the Securities has become due and payable
pursuant to Section 502;
(2) in the case of default with respect to the deposit with the
Trustee by the Escrow Agent of the assets held in the Escrow
Account, unless the Trustee previously has received
notification of a Defeasance Termination, the Trustee shall
have the right to proceed against the Escrow Agent and shall
have the right to exercise any rights of the Escrow Agent in
respect of such assets, including rights to realize on assets
pledged as collateral pursuant to assets consisting of
Assigned Rights; provided that neither the Trustee nor any
Holder shall be entitled to proceed against the Company for
payment of the principal amount (or, in the case of a partial
De-recognition Defeasance, the Defeased Portion of such
principal amount) of such Securities prior to such time as a
demand is required to be made on the Escrow Agent as provided
in Section 1407(1);
(3) the Company shall be liable for the payment of the principal
(or, in the case of a partial De-recognition Defeasance, the
Defeased Portion of such principal) of such Securities to the
extent such principal remains unpaid (a "Deficiency Amount")
on the earlier of (a) the Stated Maturity of such Securities
or (b) the date on which the principal of the Securities has
become due and payable pursuant to Section 502. Under no
circumstances will the Trustee or the Escrow Agent be liable
for the adequacy of the sales price realized in respect of any
assets held in the Escrow Account (whether held directly or as
collateral pursuant to Assigned Rights); and
(4) if the Company notifies the Trustee of a Defeasance
Termination pursuant to Section 1404 with respect to any such
Securities,
(a) the Company shall be entitled to withdraw any
remaining assets held in the Escrow Account in
respect of such Securities;
(b) the provisions of subsections (1) - (3) of this
Section 1407 shall cease to have any further force or
effect with respect to such Securities; and
(c) the Company shall become primarily obligated to pay
the full principal of such Securities when due
thereon.
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Nothing in the Section shall be construed as impairing the rights of Holders
against the Company to institute suit for the enforcement of any payment of
principal or interest when due on any Security of a series with respect to which
an election has been made under this Section.
SECTION 6. The Trustee assumes no duties, responsibilities or
liabilities by reason of this Supplement other than as set forth in the
Indenture, and this Supplement is executed and accepted by the Trustee subject
to all terms and conditions of its acceptance of the trust under the Indenture,
as fully as if said conditions were hereby set forth at length. Without limiting
the generality of the foregoing, the Trustee assumes no responsibility as to the
validity of this Supplement.
SECTION 7. This Supplement and the amendments contemplated
hereby shall become effective on the date this Supplement is executed by the
Company and the Trustee pursuant to Section 901 of the Indenture.
SECTION 8. The Company and the Trustee shall cooperate with
one another and shall execute such other and further documents as may be
reasonably necessary or proper for the effectuation of the provisions of this
Supplement.
SECTION 9. In case any provision of this Supplement shall be
determined invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired by such determination.
SECTION 10. This Supplement modifies the Indenture only with
respect to Securities hereafter issued, authenticated and delivered under the
Indenture and shall not apply to the Existing Securities. The Indenture as so
modified shall be read, taken and construed as one and the same instrument, and
as such shall continue in full force and effect. Every Holder of Securities
hereafter issued, authenticated and delivered under the Indenture shall be bound
by the terms and provisions of this Supplement regardless of whether or not any
notation relating to the modification contained herein appears on the Security.
SECTION 11. This Supplement may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but
all of such counterparts shall together constitute but one and the same
instrument.
SECTION 12. As provided in Section 112 of the Indenture, this
Supplement shall be construed in accordance with and governed by the internal
laws of the State of New York.
SECTION 13. Citibank, N.A. hereby accepts the modification of
the Indenture hereby affected and the trust in this Supplement declared and
provided, upon the terms and conditions hereinabove set forth.
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IN WITNESS WHEREOF, the parties hereto have caused this
Supplement to be duly executed as of the day and year first above written.
THE TIMES MIRROR COMPANY,
a Delaware corporation
By: /s/ XXXXXXXX XXXXXXXX
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Name: Xxxxxxxx Xxxxxxxx
Title: Vice President and Treasurer
[SEAL]
Attest:
By: /s/ XXXXXXX XXXXXX
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Name: Xxxxxxx Xxxxxx
Title: Assistant Secretary
CITIBANK, N.A., as Trustee
By: /s/ XXXXX XXXXX
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Name: Xxxxx Xxxxx
Title: Senior Trust Officer
[SEAL]
Attest:
By: /s/ XXXXX XXXX
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Name: Xxxxx Xxxx
Title: Assistant Vice President
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