Exhibit 4.3
SECOND SUPPLEMENTAL INDENTURE dated as
of October 10, 1996, among TIME WARNER INC.,
a Delaware corporation (the "Company"), TW
INC., a Delaware corporation (the
"Guarantor"), and THE CHASE MANHATTAN BANK
(formerly known as Chemical Bank), a New York
banking corporation, as trustee (the "Trustee").
WHEREAS the Company executed and delivered the
Indenture (including all indentures supplemental thereto, the
"Indenture"), dated as of December 5, 1995, to the Trustee to
provide for the issuance of unsecured subordinated debt
securities (the "Securities") of the Company from time to time in
one or more series;
WHEREAS the Company and the Trustee executed and
delivered the First Supplemental Indenture, dated as of December
5, 1995, which provides for the establishment of a series of
Securities known as the 8-7/8% Subordinated Debentures due
December 31, 2025 (the "Debentures");
WHEREAS Time Warner Capital I, a Delaware statutory
business trust (the "Trust"), has issued $575,000,000 aggregate
liquidation amount of its 8-7/8% Preferred Trust Securities (the
"Preferred Securities"), representing undivided beneficial
interests in the assets of the Trust, and has invested the
proceeds from such issuance in $592,783,525 aggregate principal
amount of the Debentures;
WHEREAS pursuant to an Amended and Restated Agreement
and Plan of Merger, dated as of September 22, 1995, as amended,
among the Guarantor, the Company, ▇▇▇▇▇▇ Broadcasting System,
Inc. ("TBS"), Time Warner Acquisition Corp. and TW Acquisition
Corp., the Company and TBS will become wholly owned subsidiaries
of the Guarantor;
WHEREAS the Guarantor desires to unconditionally and
irrevocably guarantee, on a subordinated basis, the full and
punctual payment of principal of and interest on the Securities
when due, whether at maturity, by acceleration, by redemption or
otherwise, and all other monetary obligations of the Company
under the Indenture (including obligations to the Trustee) and
the Securities, and the full and punctual performance within
applicable grace periods of
all other obligations of the Company under the Indenture and the
Securities; and
WHEREAS the Company and the Guarantor have requested
that the Trustee execute and deliver this Second Supplemental
Indenture and all requirements necessary to make this Second
Supplemental Indenture a valid instrument in accordance with its
terms and to make the guarantee provided for herein the valid
obligation of the Guarantor, and the execution and delivery of
this Second Supplemental Indenture has been duly authorized in
all respects.
NOW THEREFORE, the Company, the Guarantor and the
Trustee hereby agree that the following Sections of this Second
Supplemental Indenture supplement the Indenture with respect to
Securities issued thereunder:
SECTION 1. Definitions. (a) Capitalized terms used
herein but not defined herein have the meanings ascribed to such
terms in the Indenture.
(b) Article I, Section 1.01, of the Indenture is
hereby supplemented, solely with respect to this Second
Supplemental Indenture, to add the following definitions:
"Guarantor Senior Indebtedness" means all indebtedness
or obligations of the Guarantor, whether outstanding at the
date of execution of this Second Supplemental Indenture or
thereafter incurred, assumed, guaranteed or otherwise
created, unless the terms of the instrument or instruments
by which the Guarantor incurred, assumed, guaranteed or
otherwise created any such indebtedness or obligation
expressly provide that such obligation or obligations is
subordinated to all other indebtedness of the Guarantor or
that such indebtedness is not superior or is subordinated in
right of payment to the Securities, with respect to any of
the following (including, without limitation, interest
accruing on or after a bankruptcy or other similar event,
whether or not an allowed claim therein): (a) any
indebtedness incurred by the Guarantor or assumed or
guaranteed, directly or indirectly, by the Guarantor (i) for
money borrowed, (ii) in connection with the acquisition of
any business, property or other assets (other than trade
payables incurred in the ordinary course of business)
or (iii) for advances or progress payments in connection
with the construction or acquisition of any building, motion
picture, television production or other entertainment of any
kind; (b) any obligation of the Guarantor (or of a
Subsidiary which is guaranteed by the Guarantor) as lessee
under a lease of real or personal property; (c) any
obligation of the Guarantor to purchase property at a future
date in connection with a financing by the Guarantor or a
Subsidiary; (d) letters of credit; (e) currency swaps and
interest rate ▇▇▇▇▇▇; and (f) a deferral, renewal, extension
or refunding of any of the foregoing.
"Guarantor Senior Indebtedness Representative" means
any Person whom the Guarantor has, by written notice to the
Trustee, identified as the indenture trustee or other
trustee, agent or representative for an issue of Guarantor
Senior Indebtedness.
SECTION 2. The Guarantee. (a) The Guarantor
irrevocably and unconditionally guarantees, on a subordinated
basis as set forth herein (the "Guarantee"), to each Holder of
Securities and to the Trustee and its successors and assigns, (i)
the full and punctual payment of principal of and interest on the
Securities when due, whether at maturity, by acceleration, by
redemption or otherwise, and all other monetary obligations of
the Company under the Indenture (including obligations to the
Trustee) and the Securities and (ii) the full and punctual
performance within applicable grace periods of all other
obligations of the Company under the Indenture and the Securities.
(b) The Guarantor further agrees that the Guarantee
constitutes a guarantee of payment, performance and compliance
and not merely of collection.
(c) The obligations of the Guarantor to make any
payment hereunder may be satisfied by causing the Company to make
such payment.
(d) The Guarantor 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 Guarantee.
SECTION 3. Subordination. The Guarantee is hereby
expressly subordinated in right of payment, to the extent and in
the manner provided in this Second Supplemental Indenture, to the
prior payment in full in cash or cash equivalents of all
Guarantor Senior Indebtedness and such subordination is for the
benefit of the holders of the Guarantor Senior Indebtedness.
Upon any payment or distribution of all or substantially all the
assets of the Guarantor, whether voluntary or involuntary, or
upon any reorganization, readjustment, arrangement or similar
proceeding relating to the Guarantor or its property, whether or
not the Guarantor is a party thereto and whether in bankruptcy,
insolvency, receivership or similar proceedings, or upon any
assignment by the Guarantor for the benefit of creditors or upon
any other marshaling of the assets and liabilities of the
Guarantor:
(a) all Guarantor Senior Indebtedness shall first be
paid in full in cash or cash equivalents, or provisions made
for such payment by deposit thereof in trust with a bank or
banks (either theretofore acting as trustees under
indentures pursuant to which Guarantor Senior Indebtedness
shall have been issued or duly appointed paying agents for
the purpose), before any payment is made in respect of the
Guarantee;
(b) any payment in respect of the Guarantee to which
the Holders of the Securities would be entitled except for
the provisions of this Section shall be paid or delivered by
the Guarantor or the liquidating trustee or agent or other
Person making such payment, whether a trustee in bankruptcy,
a receiver or liquidating trustee or other trustee or agent,
directly and ratably to the holders of Guarantor Senior
Indebtedness or the Guarantor Senior Indebtedness
Representatives (subject to any subordination of any class
of Guarantor Senior Indebtedness, by the provisions thereof,
to any other class or classes of Guarantor Senior
Indebtedness), according to the aggregate amounts remaining
unpaid on account of the principal of, and the premium, if
any, and interest on, the Guarantor Senior Indebtedness held
or represented by each, to the extent necessary to make
payment in full of all Guarantor Senior Indebtedness
remaining unpaid, after giving effect to any concurrent
payment or distribution, or provision therefor, to the
holders of such Guarantor Senior Indebtedness; and
(c) in the event that, notwithstanding the foregoing,
any payment of any kind or character in respect of the
Guarantee shall be received by the Trustee or the Holders of
the Securities before all Guarantor Senior Indebtedness is
paid in full, or provision made as aforesaid for its
payment, such payment shall be held in trust for the ratable
benefit of and shall be ratably paid over or delivered to
the holders of Guarantor Senior Indebtedness remaining
unpaid or unprovided for or the Guarantor Senior
Indebtedness Representatives, as provided in the foregoing
subparagraph (b), for application to the payment of all
principal of, and premium, if any, and interest on, such
Guarantor Senior Indebtedness remaining unpaid until all
such Guarantor Senior Indebtedness shall have been paid in
full, after giving effect to any concurrent payment or
distribution, or provision therefor, to the holders of such
Guarantor Senior Indebtedness.
SECTION 4. Default on Guarantor Senior Indebtedness.
Subject to the provisions of Section 5, in the event and during
the continuation of any default in the payment of principal of,
or premium, if any, or interest on, or other monetary obligation
with respect to, any Guarantor Senior Indebtedness beyond any
applicable period of grace, or in the event that any event of
default with respect to any Guarantor Senior Indebtedness shall
have occurred and be continuing, unless and until such default or
event of default shall have been cured or waived or shall have
ceased to exist, no payment shall be made by the Guarantor in
respect of the Guarantee. Nothing contained in this Section or
elsewhere in this Supplemental Indenture shall, however, prevent
the application by the Trustee of any moneys deposited with it
hereunder by the Guarantor in respect of the Guarantee, if, at
the time of such deposit, the Trustee did not have written notice
of any event prohibiting the making of such deposit by the Guarantor.
The Guarantor shall give prompt written notice to the
Trustee of any facts that would prohibit the making of any
payment of moneys in respect of the Guarantee, including any
dissolution, winding up, liquidation or reorganization of the
Guarantor. Anything in this Section or elsewhere in this
Supplemental Indenture to the contrary notwithstanding, the
Trustee shall not be charged with knowledge of the existence of
any Guarantor Senior Indebtedness or of any default or event of
default with respect to any Guarantor
Senior Indebtedness or of any other facts that would prohibit the
making of any payment of moneys hereunder, unless and until the
Trustee shall have received notice in writing to that effect
signed by an officer of the Guarantor or by a holder of Guarantor
Senior Indebtedness who shall have been certified by the
Guarantor or otherwise established to the reasonable satisfaction
of the Trustee to be such holder or by a Guarantor Senior
Indebtedness Representative.
SECTION 5. Disputes with Holders of Certain Guarantor
Senior Indebtedness. Any failure by the Guarantor to make any
payment on or perform any other obligation under Guarantor Senior
Indebtedness, other than any indebtedness incurred by the
Guarantor or assumed or guaranteed, directly or indirectly, by
the Guarantor for money borrowed (or any deferral, renewal,
extension or refunding thereof) or any indebtedness or obligation
in which the provisions of this Section shall have been waived by
the Guarantor in the instrument or instruments by which the
Guarantor incurred, assumed, guaranteed or otherwise created such
indebtedness or obligation, shall not be deemed a default or
event of default under Section 4 hereof for so long as (a) the
Guarantor shall be disputing its obligation to make such payment
or perform such obligation and (b) either (i) such dispute shall
not have resulted in a judgment against the Guarantor that shall
have remained undischarged or unbonded and have remained in force
for more than the applicable appeal period or (ii) in the event
of such a judgment, the Guarantor shall in good faith be prosecuting
an appeal or other proceeding for review and which a stay of
execution shall have been obtained pending such appeal or review.
SECTION 6. When Payment Must Be Paid Over. If a
payment is made pursuant to the Guarantee that because of Section
4 or 5 should not have been made to the Holders of the
Securities, the Holders of Securities who receive the payment
shall hold it in trust for holders of Guarantor Senior
Indebtedness and pay it over to them as their interests may appear.
SECTION 7. Relative Rights. This Section defines the
relative rights of Holders of Securities with respect to
the Guarantee and holders of Guarantor Senior Indebtedness.
Nothing in this Indenture shall:
(a) impair, as between the Guarantor and Holders of
Securities, the obligation of the Guarantor, which is
absolute and unconditional, to make payment under the
Guarantee when, as and if due pursuant to this Supplemental
Indenture;
(b) affect the relative rights of Holders of Securities
and creditors of the Guarantor other than holders of
Guarantor Senior Indebtedness; or
(c) prevent the Trustee or any Holder of Securities
from exercising its available remedies with respect to the
Guarantee, subject to the rights of holders of Guarantor
Senior Indebtedness to receive distributions otherwise
payable to Holders of Securities.
SECTION 8. Subordination May Not Be Impaired by
Company. No right of any holder of Guarantor Senior Indebtedness
to enforce the subordination of the Guarantee shall be impaired
by any act or failure to act by the Guarantor or by its failure
to comply with this Supplemental Indenture.
SECTION 9. Reports. The Guarantor shall file with the
Trustee, and transmit to Holders, such information, documents and
other reports, and such summaries thereof, as may be required
pursuant to the Trust Indenture Act at the times and in the
manner provided pursuant to such Act; provided that any such
information, documents or reports required to be filed with the
Commission pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 shall be filed with the Trustee within 15
days after the same is so required to be filed with the
Commission.
SECTION 10. This Second Supplemental Indenture. This
Second 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 11. GOVERNING LAW. THIS SECOND SUPPLEMENTAL
INDENTURE SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.
SECTION 12. Counterparts. This Second Supplemental
Indenture may be executed in two or more counterparts, each of
which shall constitute an original, but all of which when taken
together shall constitute but one instrument.
SECTION 13. Headings. The headings of this Second
Supplemental Indenture are for reference only and shall not limit
or otherwise affect the meaning hereof.
SECTION 14. Trustee Not Responsible for Recitals. The
recitals herein contained are made by the Company and the
Guarantor, 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 Second Supplemental
Indenture.
SECTION 15. Separability. In case any one or more of
the provisions contained in this Second Supplemental Indenture
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
Second Supplemental Indenture, but this Second Supplemental
Indenture shall be construed as if such invalid or illegal or
unenforceable provision had never been contained herein.
IN WITNESS WHEREOF, the parties hereto have caused this
Second Supplemental Indenture to be duly executed as of the day
and year first above written.
TIME WARNER INC.,
by
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
TW INC.,
by
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
THE CHASE MANHATTAN BANK,
as Trustee,
by
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Trust Officer