WMG ACQUISITION CORP., as the Issuer, the Guarantors party hereto and WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee TENTH SUPPLEMENTAL INDENTURE Dated as of June 26, 2020 TO INDENTURE Dated as of November 1, 2012 as supplemented by the fifth...
Exhibit 4.6
WMG ACQUISITION CORP.,
as the Issuer,
the Guarantors party hereto
and
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Trustee
TENTH SUPPLEMENTAL INDENTURE
Dated as of June 26, 2020
TO
Dated as of November 1, 2012
as supplemented by the fifth supplemental indenture dated as of July 27, 2016
5.000% Senior Secured Notes due 2023
TENTH SUPPLEMENTAL INDENTURE (this “Tenth Supplemental Indenture”), dated as of June 26, 2020, among WMG Acquisition Corp., a Delaware corporation (the “Company”) as issuer, the guarantors listed on the signature pages hereto (the “Guarantors”) and Xxxxx Fargo Bank, National Association, a national banking association, as trustee under the Indenture referred to below (the “Trustee”).
WITNESSETH
WHEREAS, the Company and the Trustee entered into an Indenture, dated as of November 1, 2012 (the “Base Indenture”), by and among the Company, the guarantors party thereto, the Trustee and Credit Suisse AG, as notes authorized agent and as collateral agent, as supplemented by the fifth supplemental indenture, dated as of July 27, 2016 (the “Fifth Supplemental Indenture” and, together with the Base Indenture, the “Indenture”), by and among the Company, the guarantors party thereto and the Trustee, for the benefit of each other and for the equal and ratable benefit of the Holders of the 5.000% Senior Secured Notes due 2023 (the “5.000% Notes”). Capitalized terms used herein without definition have the meanings ascribed to such terms in the Indenture;
WHEREAS, Section 9.02 of the Indenture provides that, subject to certain exceptions inapplicable hereto, the Company, the Guarantors and the Trustee may amend or supplement the Indenture and the 5.000% Notes with the consent of the Holders of at least a majority in principal amount of the 5.000% Notes then outstanding (the “Requisite Consents”);
WHEREAS, the Company has distributed an Offer to Purchase and Consent Solicitation Statement, dated June 16, 2020 (the “Statement”), and accompanying Consent and Letter of Transmittal, dated June 16, 2020 (the “Letter of Transmittal”), to the Holders of the 5.000% Notes in connection with its solicitation of consents (the “Consent Solicitation”) to the proposed amendments, as further described in the Statement (the “Proposed Amendments”), that provide for the elimination or amendment of certain covenants and related provisions in the Indenture, such consents to be obtained in connection with a tender offer for the 5.000% Notes (the “Tender Offer”);
WHEREAS, the Holders of a majority of the aggregate principal amount of the 5.000% Notes outstanding, not owned by the Company or any of its affiliates, have consented to the Proposed Amendments;
WHEREAS, the Company and the Guarantors desire to amend the Indenture, as set forth in Article I hereof;
WHEREAS, the Trustee has been directed by the Holders of the requisite principal amount of 5.000% Notes to execute and deliver this Tenth Supplemental Indenture in its capacity as Trustee; and
WHEREAS, the execution and delivery of this Tenth Supplemental Indenture have been duly authorized by the Company and each Guarantor and all conditions and requirements necessary to make this instrument a valid and binding agreement have been duly performed and complied with.
NOW, THEREFORE, in consideration of the above premises, and for the purpose of memorializing the amendments to the Indenture consented to by the Holders, each party agrees, for the benefit of the others and for the equal and ratable benefit of the Holders of the 5.000% Notes, as follows:
ARTICLE 1
AMENDMENT OF INDENTURE
Section 1.1 Amendment.
(a) Section 4.06 (Compliance Certificate; Notice of Default) of the Indenture is amended and restated in its entirety to read as follows:
“[Intentionally omitted.]”
(b) Section 4.08 (Waiver of Stay, Extension or Usury Laws) of the Indenture is amended and restated in its entirety to read as follows:
“[Intentionally omitted.]”
(c) Section 4.09 (Change of Control) of the Indenture is amended and restated in its entirety to read as follows:
“[Intentionally omitted.]”
(d) Section 4.10 (Incurrence of Indebtedness and Issuance of Preferred Stock) of the Indenture is amended and restated in its entirety to read as follows:
“[Intentionally omitted.]”
(e) Section 4.11 (Restricted Payments) of the Indenture is amended and restated in its entirety to read as follows:
“[Intentionally omitted.]”
(f) Section 4.12 (Liens) of the Indenture is amended and restated in its entirety to read as follows:
“[Intentionally omitted.]”
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(g) Section 4.13 (Asset Sales) of the Indenture is amended and restated in its entirety to read as follows:
“[Intentionally omitted.]”
(h) Section 4.14 (Transactions with Affiliates) of the Indenture is amended and restated in its entirety to read as follows:
“[Intentionally omitted.]”
(i) Section 4.15 (Dividend and other Payment Restrictions Affecting Subsidiaries) of the Indenture is amended and restated in its entirety to read as follows:
“[Intentionally omitted.]”
(j) Section 4.16 (Additional Subsidiary Guarantees) of the Indenture is amended and restated in its entirety to read as follows:
“[Intentionally omitted.]”
(k) Section 4.17 (Reports to Holders) of the Indenture is amended and restated in its entirety to read as follows:
“[Intentionally omitted.]”
(l) Section 4.20 (Payments for Consent) of the Indenture is amended and restated in its entirety to read as follows:
“[Intentionally omitted.]”
(m) Section 4.21 (Changes in Covenants When Notes Rated Investment Grade) of the Indenture is amended and restated in its entirety to read as follows:
“[Intentionally omitted.]”
(n) Section 5.01 (Merger, Consolidation, or Sale of Assets) of the Indenture is amended and restated in its entirety to read as follows:
“(a) The Issuer may not (1) consolidate or merge with or into another Person (whether or not the Issuer is the surviving Person); or (2) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of the Issuer and its Subsidiaries taken as a whole, in one or more related transactions, to another Person; unless:
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(1) either: (a) the Issuer is the surviving Person; or (b) the Person formed by or surviving any such consolidation or merger (if other than the Issuer) or to which such sale, assignment, transfer, conveyance or other disposition has been made is a Person organized or existing under the laws of the United States, any state of the United States, the District of Columbia or any territory thereof (the Issuer or such Person, as the case may be, being herein called the “Successor Company”); and
(2) the Successor Company (if other than the Issuer) assumes all the obligations of the Issuer under the 5.000% Notes, this Indenture, and the Registration Rights Agreement pursuant to agreements in form reasonably satisfactory to the Trustee.”
(o) Section 6.01 (Events of Default) of the Indenture is amended and restated in its entirety to read as follows:
“Each of the following is an “Event of Default”:
(1) the Issuer defaults in payment when due and payable, upon redemption, acceleration or otherwise, of principal of, or premium, if any, on the 5.000% Notes; or
(2) the Issuer defaults in the payment when due of interest, if any, on or with respect to the 5.000% Notes and such default continues for a period of 30 days.”
(p) Any definitions used exclusively in the provisions of the Indenture that are deleted pursuant to paragraphs (a) – (p) of this Article I, and any definitions used exclusively within such definition, are hereby deleted in their entirety from the Indenture.
ARTICLE 2
MISCELLANEOUS PROVISIONS
Section 2.1 Effect of Tenth Supplemental Indenture.
From and after the Amendment Operative Time (as defined below), the Indenture shall be amended and supplemented in accordance herewith. Each reference in the Indenture to “this Indenture,” “hereunder,” “hereof,” or “herein” shall mean and be a reference to the Indenture as amended and supplemented by this Tenth Supplemental Indenture unless the context otherwise requires. The Indenture as amended and supplemented by this Tenth Supplemental Indenture shall be read, taken and construed as one and the same instrument, and every Holder of the 5.000% Notes heretofore or hereafter authenticated and delivered under the Indenture as supplemented by this Tenth Supplemental Indenture shall be bound thereby.
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Section 2.2 Effectiveness.
This Tenth Supplemental Indenture shall become effective and binding on the Company, the Guarantors, the Trustee and every Holder of the 5.000% Notes heretofore or hereafter authenticated and delivered under the Indenture, upon the date on which the Trustee receives an Officers’ Certificate certifying that the Holders of the requisite principal amount of 5.000% Notes have consented (and not theretofore revoked such consent) to the Proposed Amendments; provided, however, that the Proposed Amendments shall become operative only upon the acceptance for purchase by the Company (the “Amendment Operative Time”) of the 5.000% Notes validly tendered (and not validly withdrawn) pursuant to the Tender Offer prior to 5:00 p.m. New York City time on June 29, 2020.
Section 2.3 Indenture Remains in Full Force and Effect.
Except as supplemented and amended hereby, all provisions in the Indenture shall remain in full force and effect.
Section 2.4 Confirmation of Indenture.
The Indenture, as supplemented and amended by this Tenth Supplemental Indenture, is in all respects confirmed and ratified.
Section 2.5 Conflict with Trust Indenture Act.
If any provision of this Tenth Supplemental Indenture limits, qualifies or conflicts with another provision hereof or of the Indenture which is required or deemed to be included in this Tenth Supplemental Indenture or the Indenture by any of the provisions of the Trust Indenture Act of 1939, such required provision shall control.
Section 2.6 Severability.
In case any one or more of the provisions in this Tenth Supplemental Indenture shall be held invalid, illegal or unenforceable, in any respect for any reason, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions shall not in any way be affected or impaired thereby, it being intended that all of the provisions hereof shall be enforceable to the full extent permitted by law.
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Section 2.7 Successors.
All agreements of the Company and the Guarantors in this Tenth Supplemental Indenture shall bind their successors. All agreements of the Trustee in this Tenth Supplemental Indenture shall bind its successor.
Section 2.8 Certain Duties and Responsibilities of the Trustee.
In entering into this Tenth Supplemental Indenture, the Trustee shall be entitled to the benefit of every provision of the Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee, whether or not elsewhere herein so provided. The Trustee, for itself and its successor or successors, accepts the terms of the Indenture as amended by this Tenth Supplemental Indenture, and agrees to perform the same, but only upon the terms and provisions defining and limiting the liabilities and responsibilities of the Trustee, which terms and provisions shall in like manner define and limit its liabilities and responsibilities in the performance of the trust created by the Indenture. The Trustee makes no representations as to the validity or sufficiency of this Tenth Supplemental Indenture other than as to the validity of its execution and delivery by the Trustee.
Section 2.9 Governing Law.
This Tenth Supplemental Indenture will be governed by and construed in accordance with the laws of the State of New York.
Section 2.10 Duplicate Originals.
All parties may sign any number of copies of this Tenth Supplemental Indenture. Each signed copy or counterpart shall be an original, but all of them together shall represent the same agreement. The words “execution,” “signed,” “signature,” and words of like import in the Indenture shall include images of manually executed signatures transmitted by facsimile, email or other electronic format (including, without limitation, “pdf,” “tif” or “jpg”) and other electronic signatures (including without limitation, DocuSign and AdobeSign or any other similar platform identified by the Company and reasonably available at no undue burden or expense to the Trustee). The use of electronic signatures and electronic records (including, without limitation, any contract or other record created, generated, sent, communicated, received, or stored by electronic means) shall be of the same legal effect, validity and enforceability as a manually executed signature or use of a paper-based record-keeping system to the fullest extent permitted by applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act and any other applicable law, including, without limitation, any state law based on the Uniform Electronic Transactions Act or the Uniform Commercial Code. The Trustee shall have no duty to inquire into or investigate the authenticity or authorization of any such electronic signature and shall be entitled to conclusively rely on any such electronic signature without any liability with respect thereto.
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Section 2.11 Effect of Headings.
The Section headings herein are for convenience only and shall not affect the construction hereof.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Tenth Supplemental Indenture to be duly executed, all as of the date first written.
| WMG ACQUISITION CORP. | ||
| By: | /s/ Xxxx X. Xxxxxxxx | |
| Name: | Xxxx X. Xxxxxxxx | |
| Title: | Executive Vice President, General Counsel and Secretary | |
| Guarantors: | ||
| X.X. XXXXXXX CO. ARTS MUSIC INC. ATLANTIC RECORDING CORPORATION ATLANTIC/MR VENTURES INC. AUDIO PROPERTIES/BURBANK, INC. BIG BEAT RECORDS INC. CAFÉ AMERICANA INC. XXXXXXXX MUSIC COMPANY, INC. XXXX MUSIC, INC. COTILLION MUSIC, INC. CRK MUSIC INC. E/A MUSIC, INC. ELEKSYLUM MUSIC, INC. ELEKTRA ENTERTAINMENT GROUP INC. ELEKTRA GROUP VENTURES INC. ELEKTRA MUSIC GROUP INC. ELEKTRA/CHAMELEON VENTURES INC. FHK, INC. FIDDLEBACK MUSIC PUBLISHING COMPANY, INC. FOSTER FREES MUSIC, INC. XXXX XXXXX’X WESTERN MUSIC PUBLISHING CO. | ||
[SIGNATURE PAGE TO TENTH SUPPLEMENTAL INDENTURE]
| Guarantors (cont’d): | ||
| GOLDEN WEST MELODIES, INC. INSOUND ACQUISITION INC. INTERSONG U.S.A., INC. J. RUBY PRODUCTIONS, INC. JADAR MUSIC CORP. LEM AMERICA, INC. LONDON-SIRE RECORDS INC. MAVERICK PARTNER INC. XXXXXXXX MUSIC INC. MELODY RANCH MUSIC CO., INC. MIXED BAG MUSIC, INC. NONESUCH RECORDS INC. NON-STOP MUSIC HOLDINGS, INC. OCTA MUSIC, INC. PEPAMAR MUSIC CORP. REP SALES, INC. REVELATION MUSIC PUBLISHING CORPORATION RHINO ENTERTAINMENT COMPANY RICK’S MUSIC INC. XXXXXXXX MUSIC CO., INC. RIGHTSONG MUSIC INC. ROADRUNNER RECORDS, INC. RYKO CORPORATION RYKODISC, INC. RYKOMUSIC, INC. SEA CHIME MUSIC, INC. SIX-FIFTEEN MUSIC PRODUCTIONS, INC. SR/MDM VENTURE INC. XXXXX-XXXXXXXX, INC. SUPER HYPE PUBLISHING, INC. THE ALL BLACKS U.S.A., INC. XXXXX XXXXXXX PUBLISHING GROUP, INC. UNICHAPPELL MUSIC INC. W.C.M. MUSIC CORP. XXXXXX MUSIC INC. WARNER ALLIANCE MUSIC INC. WARNER BRETHREN INC. WARNER MUSIC PUBLISHING INTERNATIONAL INC. WARNER RECORDS INC. WARNER CUSTOM MUSIC CORP. WARNER DOMAIN MUSIC INC. WARNER MUSIC DISCOVERY INC. | ||
[SIGNATURE PAGE TO TENTH SUPPLEMENTAL INDENTURE]
| Guarantors (cont’d): | ||
| WARNER MUSIC LATINA INC. WARNER MUSIC SP INC. XXXXXX XXXXXXXXX MUSIC INC. WARNER SPECIAL PRODUCTS INC. WARNER STRATEGIC MARKETING INC. XXXXXX XXXXXXXX MUSIC SERVICES, INC. XXXXXX XXXXXXXX MUSIC, INC. XXXXXX XXXXXXXX PRODUCTION MUSIC, INC. WARNER-ELEKTRA-ATLANTIC CORPORATION WARNERSONGS, INC. WARNER-XXXXXXXXX PUBLISHING CORP. WARPRISE MUSIC INC. WC GOLD MUSIC CORP. W XXXXXXXX MUSIC CORP. WCM/HOUSE OF GOLD MUSIC, INC. WARNER RECORDS/QRI VENTURE, INC. WARNER RECORDS/RUFFNATION VENTURES, INC. WEA EUROPE INC. WEA INC. WEA INTERNATIONAL INC. WIDE MUSIC, INC. WMG RHINO HOLDINGS INC. ARTIST ARENA LLC ASYLUM LLC ASYLUM RECORDS LLC ASYLUM WORLDWIDE LLC ATLANTIC MOBILE LLC ATLANTIC PIX LLC ATLANTIC PRODUCTIONS LLC ATLANTIC RECORDING LLC ATLANTIC SCREAM LLC ATLANTIC/143 L.L.C. BB INVESTMENTS LLC BULLDOG ISLAND EVENTS LLC BUTE SOUND LLC CORDLESS RECORDINGS LLC EAST WEST RECORDS LLC ELEKTRA MUSIC LLC ELEKTRA RECORDS LLC FERRET MUSIC HOLDINGS LLC FERRET MUSIC LLC FERRET MUSIC MANAGEMENT LLC FERRET MUSIC TOURING LLC | ||
[SIGNATURE PAGE TO TENTH SUPPLEMENTAL INDENTURE]
| Guarantors (cont’d): | ||
| FOZ MAN MUSIC LLC FUELED BY RAMEN LLC LAVA RECORDS LLC MM INVESTMENT LLC P & C PUBLISHING LLC RHINO NAME & LIKENESS HOLDINGS, LLC RHINO ENTERTAINMENT LLC RHINO FOCUS HOLDINGS LLC RHINO/FSE HOLDINGS, LLC SODATONE USA LLC T-BOY MUSIC, L.L.C. T-GIRL MUSIC, L.L.C. THE BIZ LLC XXXXX.XXX LLC UPROXX LLC WARNER MUSIC DISTRIBUTION LLC WARNER MUSIC NASHVILLE LLC WARNER RECORDS/SIRE VENTURES LLC WARNER RECORDS LLC WMG XXX, LLC WMG PRODUCTIONS LLC WRONG MAN DEVELOPMENT LIMITED LIABILITY COMPANY | ||
| By: | /s/ Xxxx X. Xxxxxxxx | |
| Name: | Xxxx X. Xxxxxxxx | |
| Title: | Vice President & Secretary of each of the above named entities listed under the heading Guarantors and signing this agreement in such capacity on behalf of each such entity | |
| WARNER MUSIC INC. | ||
| By: | /s/ Xxxx X. Xxxxxxxx | |
| Name: | Xxxx X. Xxxxxxxx | |
| Title: | Executive Vice President, General Counsel & Secretary | |
[SIGNATURE PAGE TO TENTH SUPPLEMENTAL INDENTURE]
| Guarantors (cont’d): | ||
| 615 MUSIC LIBRARY, LLC | ||
| By: Six-Fifteen Music Productions, Inc., its Sole Member | ||
| By: | /s/ Xxxx X. Xxxxxxxx | |
| Name: | Xxxx X. Xxxxxxxx | |
| Title: | Vice President & Secretary | |
| ARTIST ARENA INTERNATIONAL, LLC | ||
| By: | Artist Arena LLC, its Sole Member | |
| By: | Warner Music Inc., its Sole Member | |
| By: | /s/ Xxxx X. Xxxxxxxx | |
| Name: | Xxxx X. Xxxxxxxx | |
| Title: | Executive Vice President, General Counsel & Secretary | |
| ALTERNATIVE DISTRIBUTION ALLIANCE | ||
| By: Warner Music Distribution LLC, its Managing Partner | ||
| By: Rep Sales, Inc., its Sole Member and Manager | ||
| By: | /s/ Xxxx X. Xxxxxxxx | |
| Name: | Xxxx X. Xxxxxxxx | |
| Title: | Vice President & Secretary | |
| MAVERICK RECORDING COMPANY | ||
| By: SR/MDM Venture Inc., its Managing Partner | ||
| By: | /s/ Xxxx X. Xxxxxxxx | |
| Name: | Xxxx X. Xxxxxxxx | |
| Title: | Vice President & Secretary | |
[SIGNATURE PAGE TO TENTH SUPPLEMENTAL INDENTURE]
| Guarantors (cont’d): | ||
| NON-STOP CATACLYSMIC MUSIC, LLC | ||
| NON-STOP INTERNATIONAL PUBLISHING, LLC | ||
| NON-STOP OUTRAGEOUS PUBLISHING, LLC | ||
| By: Non-Stop Music Publishing, LLC, their Sole Member | ||
| By: Non-Stop Music Holdings, Inc., its Sole Member | ||
| By: | /s/ Xxxx X. Xxxxxxxx | |
| Name: | Xxxx X. Xxxxxxxx | |
| Title: | Vice President & Secretary | |
| NON-STOP MUSIC LIBRARY, L.C. | ||
| NON-STOP MUSIC PUBLISHING, LLC | ||
| NON-STOP PRODUCTIONS, LLC | ||
| By: Non-Stop Music Holdings, Inc., their Sole Member | ||
| By: | /s/ Xxxx X. Xxxxxxxx | |
| Name: | Xxxx X. Xxxxxxxx | |
| Title: | Vice President & Secretary | |
[SIGNATURE PAGE TO TENTH SUPPLEMENTAL INDENTURE]
| XXXXX FARGO BANK, NATIONAL ASSOCIATION, as Trustee | ||||
| By: | /s/ Stefan Victory | |||
| Name: | Stefan Victory | |||
| Title: | Vice President | |||
[SIGNATURE PAGE TO TENTH SUPPLEMENTAL INDENTURE]
