Contract
Exhibit
4.28
FOURTH SUPPLEMENTAL INDENTURE, dated as
of January 11, 2001, among XXXXXX BROADCASTING SYSTEM, INC., a Georgia
corporation (the “Company”), AOL TIME WARNER INC., a Delaware corporation (“AOL
Time Warner”), AMERICA ONLINE, INC., a Delaware corporation (“America Online”),
TIME WARNER INC., a Delaware corporation formerly known as TW Inc. (“TWI”), TIME
WARNER COMPANIES, INC., a Delaware corporation (“TWC”), and THE CHASE MANHATTAN
BANK, as successor Trustee (the “Trustee”).
WHEREAS the Company has executed and
delivered to the Trustee a Senior Debt Securities Indenture, dated as of
May 15, 1993 (including the Company’s Standard Multiple Series Indenture
Provisions dated May 15, 1993 incorporated therein by reference) (the
“Original Indenture”), as amended from time to time, including by way of the
First Supplemental Indenture, dated as of October 10, 1996 (the “First
Supplemental Indenture”), among the Company, TWI and the Trustee, the Second
Supplemental Indenture, dated as of December 5, 1997 (the “Second
Supplemental Indenture”) among the Company, TWC, TWI and the Trustee, the Third
Supplemental Indenture, dated as of March 17, 1998 (the “Third Supplemental
Indenture”) among the Company, TWC, TWI and the Trustee, and including with
respect to each particular series of securities, the terms of such securities
established, as contemplated by Section 301 of the Original Indenture, pursuant
to the Officers’ Certificate, dated as of July 8, 1993, pursuant to which the
Company issued its 8d% Senior
Notes due 2013, in the principal amount of $300,000,000 (the “8d% Notes
Certificate”), the Officers’ Certificate, dated as of February 3, 1994,
pursuant to which the Company issued its 7.40% Senior Notes due 2004, in the
principal amount of $250,000,000 (the “7.40% Notes Certificate”) and the
Officers’ Certificate, dated as of February 3, 1994, pursuant to which the
Company issued its 8.40% Senior Debentures due 2024, in the principal amount of
$200,000,000 (the “8.40% Debentures Certificate” and together with the 8d% Notes
Certificate and the 7.40% Notes Certificate, the “Certificates”) (the Original
Indenture as amended by the First Supplemental Indenture, the Second
Supplemental Indenture, the Third Supplemental Indenture and the Certificates is
herein called the “Indenture”);
WHEREAS TWI has, by way of the First
Supplemental Indenture, unconditionally and irrevocably guaranteed the
obligations of the Company under the Indenture (the “TWI
Guarantee”);
WHEREAS TWC has, by way of the Second
Supplemental Indenture, unconditionally and irrevocably guaranteed the
obligations of the Company under the Indenture (the “TWC
Guarantee”);
WHEREAS TWI has, by way of the Third
Supplemental Indenture, unconditionally and irrevocably guaranteed the
obligations of TWC under the TWC Guarantee (the “Additional TWI Guarantee” and
together with the TWI Guarantee, the “TWI Guarantees”);
WHEREAS pursuant to a Second Amended
and Restated Agreement and Plan of Merger, dated as of January 10, 2000, as
amended, 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 Section 901(3) of the
Indenture provides that the Company, when authorized by or pursuant to a Board
Resolution, and the Trustee may, without the consent of any Holders, enter into
one or more indentures supplemental to the Indenture for the purpose of adding
additional Events of Default in respect of the Securities;
WHEREAS Section 901(9) of the
Indenture provides that the Company, when authorized by or pursuant to a Board
Resolution, and the Trustee may, without the consent of any Holders, enter into
one or more indentures supplemental to the Indenture for the purposes of, among
other things, making any provision with respect to matters or questions arising
under the Indenture provided that no such change shall adversely affect the
interests of the Holders of Securities of any series;
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;
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 (i)
America Online under the America Online Guarantee and (ii) 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 TWC have requested that the Trustee execute and deliver
this Fourth Supplemental Indenture and all requirements necessary to make this
Fourth 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 Fourth Supplemental Indenture has been duly
authorized in all respects.
NOW, THEREFORE, the Company, AOL Time
Warner, America Online, TWI, TWC 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. Capitalized
terms used herein and not defined herein have the meanings ascribed to such
terms in the Indenture.
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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 date of this Fourth
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 Guarantees. 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 TWC
(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 TWC 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 TWC 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 TWC, or any custodian, trustee, liquidator or other similar
official acting in relation to any of the Company, AOL Time Warner, America
Online, TWI or TWC, 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.
(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 Fourth 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 Fourth 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.
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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 Fourth
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 TWC (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 TWC Guarantee, 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 TWC 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 TWC, or any custodian, trustee, liquidator or other similar
official acting in relation to any of the Company, AOL Time Warner, America
Online, TWI or TWC, 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 Fourth 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 Fourth 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.
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SECTION 4. Amendments to
Covenants. Section 1009 of Article 10 of the Indenture is
hereby supplemented and amended to read in its entirety as follows:
“SECTION 1009. Consolidation, Merger,
Conveyance or Transfer by AOL Time Warner, America Online, TWI or TWC on Certain
Terms. (a) None of AOL Time Warner, America Online,
TWI or TWC 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) the corporation formed by
such consolidation or into which AOL Time Warner, America Online, TWI or TWC is
merged or the Person which acquires by conveyance or transfer the properties and
assets of AOL Time Warner, America Online, TWI or TWC 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 the obligations of AOL Time
Warner, America Online, TWI or TWC, as the case may be, under this
Indenture;
“(2) immediately after giving
effect to such transaction, no Event of Default, and no event which, after
notice or lapse of time, or both, would become an Event of Default, shall have
happened and be continuing; and
“(3) the Company has delivered to
the Trustee an Officers’ Certificate and an Opinion of Counsel each stating that
such consolidation, merger, conveyance or transfer and such supplemental
indenture comply with this Article and that all conditions precedent herein
provided for relating to such transaction have been complied with.
“(b) Upon any consolidation or
merger, or any conveyance or transfer of the properties and assets of AOL Time
Warner, America Online, TWI or TWC, as the case may be, substantially as an
entirety in accordance with paragraph (a) of this Section, the successor
Person formed by such consolidation or into which AOL Time Warner, America
Online, TWI or TWC, as the case may be, 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 AOL Time Warner, America Online, TWI or TWC, as
applicable under the Indenture with the same effect as if such successor had
been named as AOL Time Warner, America Online, TWI or TWC, as applicable
herein. In the event of any such conveyance or transfer, the
predecessor shall be discharged from all obligations and covenants under the
Indenture and the Securities and may be dissolved, wound up or liquidated at any
time thereafter.”
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SECTION 5. Additional Events of
Default. Clauses (h), (i) and (j) of Section 501 of
the Indenture are hereby supplemented and amended to read in their entirety as
follows:
“(h) the entry of an order for relief
against AOL Time Warner or any Material U.S. Subsidiary thereof 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 AOL Time Warner or any Material U.S.
Subsidiary thereof 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 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 properties, or ordering the winding up or
liquidation of their respective affairs, and the continuance of any such decree
or order unstayed and in effect for a period of 90 consecutive days;
or
“(i) 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 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 AOL Time Warner or any Material
U.S. Subsidiary thereof in furtherance of any such action; or
“(j) default under any bond, debenture,
note, guarantee or other evidence of indebtedness for money borrowed by AOL Time
Warner, America Online, TWI or TWC (including a default with respect to a
guarantee of the Securities of any series) or under any mortgage, indenture or
instrument under which there may be issued or by which there may be secured or
evidenced any indebtedness for money borrowed by AOL Time Warner, America
Online, TWI or TWC, whether such indebtedness now exists or shall hereafter be
created, which default (i) shall constitute a failure to pay the principal
of such indebtedness having an outstanding principal amount in excess of
$50 million in the aggregate when due and payable at the final (but not any
interim) maturity thereof after the expiration of any applicable grace period
with respect thereto and the holders of such indebtedness shall not have waived
such default or (ii) shall have resulted in such indebtedness having an
outstanding principal amount in excess of $50 million in the aggregate
becoming or being declared due and payable prior to the date on which it would
otherwise have become due and payable, in either case without such indebtedness
having been discharged, or such acceleration having been rescinded or annulled,
within a period of 60 days after there shall have been given, by registered
or certified mail, to the Company by the Trustee or to the Company 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 and
requiring AOL Time Warner, America Online, TWI or TWC to cause such indebtedness
to be discharged or cause such acceleration to be rescinded or annulled and
stating that such notice is a ‘Notice of Default’ hereunder.”
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SECTION 6. Effect on
Indenture. Except as expressly modified by this Fourth
Supplemental Indenture, the Indenture and the Securities issued thereunder are
in all respects ratified and confirmed and all the terms, conditions and
provisions thereof shall remain in full force and effect.
SECTION 7. Form of
Securities. The Company shall not be required to prepare and
execute, and the Trustee shall not be required to authenticate and deliver in
exchange for outstanding Securities, any new Securities to conform to this
Fourth Supplemental Indenture.
SECTION 8. GOVERNING LAW.
THIS FOURTH SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS, BUT NOT THE LAWS AS TO CONFLICTS OR CHOICE OF
LAW, OF THE STATE OF NEW YORK.
SECTION 9. Counterparts. This
Fourth Supplemental Indenture 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 but one and the same
instrument.
SECTION 10. Trustee Not Responsible for
Recitals. The recitals therein contained are made by the
Company, AOL Time Warner, America Online, TWI and TWC, 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 11. Headings. The
headings of this Fourth Supplemental Indenture are for reference only and shall
not limit or otherwise affect the meaning hereof.
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 to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this 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 above written.
| XXXXXX BROADCASTING SYSTEM, INC., | |||
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| Title: | |||
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AMERICA
ONLINE, INC.,
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by
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AMERICA
ONLINE, INC.,
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by
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| Title: | |||
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TIME
WARNER COMPANIES, INC.,
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by
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| Name: | |||
| Title: | |||
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THE
CHASE MANHATTAN BANK,
as Trustee
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by
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| Name: | |||
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