NINTH SUPPLEMENTAL INDENTURE (this “Ninth Supplemental Indenture”) dated as of _______, 2009, among
Exhibit
4.3
NINTH
SUPPLEMENTAL INDENTURE (this “Ninth Supplemental
Indenture”) dated as of
_______,
2009, among
HISTORIC
TW INC., a Delaware corporation (the “Company”),
TIME
WARNER INC., a
Delaware corporation (“TWX”),
AOL LLC,
a Delaware limited liability company
(“AOL”), ▇▇▇▇▇▇
BROADCASTING
SYSTEM, INC., a Georgia corporation
(“TBS”), and THE
BANK OF NEW YORK MELLON (formerly
known as The Bank of New York, as successor trustee
to The
Chase
Manhattan Bank (formerly known as
Chemical Bank)), a New York banking corporation,
as trustee (the “Trustee”).
W I T N E
S S E T H
WHEREAS the Company (as successor to
Time Warner Companies, Inc. (“TWCI”)) 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 (as successor to TWCI) and the Trustee, the Second Supplemental
Indenture, dated as of October 10, 1996, between the Company (in its own
capacity and as successor to TWCI) and the Trustee (the “Second Supplemental
Indenture”), the Third Supplemental Indenture, dated as of
December 31, 1996, between the Company (in its own capacity and as
successor to TWCI) and the Trustee (the “Third Supplemental
Indenture”), the Fourth Supplemental Indenture, dated as of
December 17, 1997, among the Company (in its own capacity and as successor
to TWCI), TBS and the Trustee (the “Fourth Supplemental
Indenture”), the Fifth Supplemental Indenture, dated as of
January 12, 1998, among the Company (in its own capacity and as successor
to TWCI), TBS and the Trustee, the Sixth Supplemental Indenture, dated as of
March 17, 1998, among the Company (in its own capacity and as successor to
TWCI), TBS and the Trustee (the “Sixth Supplemental
Indenture”), the Seventh Supplemental Indenture, dated as of
January 11, 2001, among the Company (in its own capacity and as successor
to TWCI), TWX, AOL, TBS and the Trustee (the “Seventh Supplemental
Indenture”) and the Eighth Supplemental Indenture, dated as of
February 23, 2009, among the Company (in its own capacity and as successor
to TWCI), TWX, AOL, TBS and the Trustee (the “Eighth 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);
WHEREAS TWCI was the original issuer
under the Indenture and the Company (in its own capacity and not as successor to
TWCI) has (a) by way of the Second Supplemental Indenture, unconditionally
and irrevocably guaranteed the obligations of TWCI under the Indenture (the
“Initial HTW
Guarantee”) and extended to the Holders of Securities certain rights and
privileges in connection with the Initial HTW Guarantee, (b) by way of the
Third Supplemental Indenture, extended to the Holders of Securities certain
additional rights and privileges in connection with the Initial HTW Guarantee,
and (c) by way of the Sixth Supplemental Indenture, unconditionally and
irrevocably guaranteed the obligations of TBS under the TBS Guarantee (as
defined below) (the “Additional HTW
Guarantee” and together with the Initial HTW Guarantee, the “HTW Guarantees”) and
extended to the Holders of Securities certain rights and privileges in
connection with the Additional HTW Guarantee;
WHEREAS, pursuant to a certificate of
ownership and merger filed with the Secretary of State of the State of Delaware,
TWCI merged with and into the Company on February 24, 2009, with the
Company being the surviving corporation, and the Company, by way of the Eighth
Supplemental Indenture, assumed all the obligations of TWCI under the
Indenture;
WHEREAS TBS has, by way of the Fourth
Supplemental Indenture, unconditionally and irrevocably guaranteed the
obligations of the Company under the Indenture (the “TBS Guarantee”) and
extended to the Holders of Securities certain rights and privileges in
connection with the TBS Guarantee;
WHEREAS AOL has, by way of the Seventh
Supplemental Indenture, unconditionally and irrevocably guaranteed the
obligations of the Company under the HTW Guarantees (the “AOL Guarantee”) and
extended to the Holders of Securities certain rights and privileges in
connection with the AOL Guarantee, and has, by way of the Eighth Supplemental
Indenture, affirmed that the AOL Guarantee, in so far as it is a guarantee of
the obligations of the Company under the HTW Guarantees, constitutes a guarantee
of the obligations of the Company, in its capacity as successor to TWCI, in
respect of the Securities;
WHEREAS TWX has, by way of the Seventh
Supplemental Indenture, unconditionally and irrevocably guaranteed the
obligations of (a) AOL under the AOL Guarantee and (b) the Company under the HTW
Guarantees (together, the “TWX Guarantee”) and
extended to the Holders of Securities certain rights and privileges in
connection with the TWX Guarantee, and has, by way of the Eighth Supplemental
Indenture, affirmed that the TWX Guarantee, in so far as it is a guarantee of
the obligations of the Company under the HTW Guarantees, constitutes a guarantee
of the obligations of the Company, in its capacity as successor to TWCI, in
respect of the Securities;
WHEREAS Sections 801 and 802 of the
Indenture provide that AOL is, by virtue of the AOL Guarantee, restricted under
the Indenture from conveying or transferring its properties and assets
substantially as an entirety, except under certain limited
circumstances;
WHEREAS TWX, acting on behalf of the
Company, has solicited consents from the Holders of Securities (the “Solicitation”) for
the purpose of adopting certain proposed amendments to the Indenture which
provide that the provisions of Sections 801 and 802 shall not apply to a
conveyance or transfer by AOL of its properties and assets substantially as an
entirety unless such conveyance or transfer constitutes a conveyance or transfer
of the properties and assets of the Company, TWX, AOL and TBS and their
respective subsidiaries, taken as a whole, substantially as an entirety (the
“Proposed
Amendments”);
WHEREAS Section 902 of the Indenture
permits the Company, when authorized by a resolution of the Board of Directors
of the Company, and with the consent of the Holders of not less than a majority
in principal amount of the Securities then outstanding, voting by series, to
enter into one or more indentures supplemental to the Indenture, in form
satisfactory to the Trustee, for the purpose of modifying in any manner the
rights of the Holders of the Securities;
2
WHEREAS TWX, acting on behalf of the
Company, has obtained and delivered to the Trustee evidence of the requisite
consents of Holders of the Securities to effect the Proposed Amendments under
the Indenture;
WHEREAS, pursuant to the adoption of
the Proposed Amendments, TWX has agreed that, in connection with (and only in
connection with), the conveyance or transfer by AOL of its properties and assets
substantially as an entirety, TWX shall cause its wholly owned subsidiary, Home
Box Office, Inc., a Delaware corporation (“HBO”), to issue an
unconditional and irrevocable guarantee of the full and punctual payment of the
principal of and interest on the Securities when due, whether at maturity, by
acceleration, by redemption or otherwise, and of all other monetary obligations
of the Company under the Indenture (including obligations to the Trustee
thereunder) and the Securities and of the full and punctual performance within
applicable grace periods of all other obligations of the Company under the
Indenture and the Securities (the “HBO
Guarantee”);
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 the Company, TWX, AOL and TBS
have duly authorized the execution and delivery of this Ninth Supplemental
Indenture, subject to the terms and conditions described herein;
and
WHEREAS the Company, TWX, AOL and TBS
have requested that the Trustee execute and deliver this Ninth Supplemental
Indenture, and all requirements necessary to make this Ninth Supplemental
Indenture a valid instrument in accordance with its terms and to give effect to
the Proposed Amendments and the execution and delivery of this Ninth
Supplemental Indenture have been duly authorized in all respects.
NOW, THEREFORE, the Company, TWX, AOL,
TBS and the Trustee hereby agree that the following Sections of this Ninth
Supplemental Indenture supplement the Indenture with respect to Securities
issued thereunder:
SECTION 1. Definitions. (a)
Unless otherwise provided herein, the capitalized terms used and not defined
herein have the meanings ascribed to such terms in the Indenture.
(b) Section 101 of the Indenture is
hereby supplemented to add the following definitions:
““AOL” means AOL LLC
(formerly known as America Online, Inc.), a Delaware limited liability company,
defined in the Eighth Supplemental Indenture as “AOL” and formerly defined in
the Seventh Supplemental Indenture as “America Online”. All references to
“America Online” under the Indenture are deemed to be references to
AOL.”
““HBO” means Home Box
Office, Inc., a Delaware corporation.”
3
““TWX” means Time
Warner Inc. (formerly known as AOL Time Warner Inc.), a Delaware corporation,
defined in the Eighth Supplemental Indenture as “TWX” and formerly defined in
the Seventh Supplemental Indenture as “AOL Time Warner”. All references to “AOL
Time Warner” in the Indenture are deemed to be references to TWX.”
SECTION 2. Amendment to Article
Eight. Article Eight of the Indenture is hereby supplemented
and amended by adding thereto at the end thereof, the following Section
803:
“Section
803. Certain AOL Conveyances or
Transfers. Notwithstanding the foregoing, subject to the prior
or concurrent issuance of the HBO Guarantee as set forth elsewhere herein, the
provisions of Sections 801 and 802 shall not apply to a conveyance or transfer
by AOL of its properties and assets substantially as an entirety unless such
conveyance or transfer constitutes a conveyance or transfer of the properties
and assets of the Company, TWX, AOL and TBS and their respective Subsidiaries,
taken as a whole, substantially as an entirety.”
SECTION 3. HBO
Guarantee. TWX hereby undertakes that, in connection with (and
only in connection with), the conveyance or transfer by AOL of its properties
and assets substantially as an entirety, TWX shall cause HBO to issue an
unconditional and irrevocable guarantee of the full and punctual payment of the
principal of and interest on the Securities when due, whether at maturity, by
acceleration, by redemption or otherwise, and of all other monetary obligations
of the Company under the Indenture (including obligations to the Trustee
thereunder) and the Securities and of the full and punctual performance within
applicable grace periods of all other obligations of the Company under the
Indenture and the Securities pursuant to a supplemental indenture to be executed
by the parties thereto prior to, or concurrently with, the conveyance or
transfer by AOL of its properties and assets substantially as an entirety, which
supplemental indenture shall be substantially in the form set forth in Annex A to this Ninth
Supplemental Indenture, with such technical modifications as are satisfactory to
the Trustee.
SECTION 4. This Ninth Supplemental
Indenture. This Ninth 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 5. GOVERNING
LAW. THIS NINTH SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 6. Counterparts. This
Ninth 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 7. Headings. The
headings of this Ninth Supplemental Indenture are for reference only and shall
not limit or otherwise affect the meaning hereof.
4
SECTION 8. Trustee Not Responsible for
Recitals. The recitals herein contained are made by the
Company, TWX, AOL 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 Ninth Supplemental Indenture.
SECTION 9. Separability. In
case any one or more of the provisions contained in this Ninth 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 Ninth
Supplemental Indenture or of the Securities, but this Ninth Supplemental
Indenture and the Securities shall be construed as if such invalid or illegal or
unenforceable provision had never been contained herein or therein.
[Remainder
of Page Intentionally Left Blank]
5
IN WITNESS WHEREOF, the parties hereto
have caused this Ninth Supplemental Indenture to be duly executed by their
respective authorized officers as of the date first written above.
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HISTORIC
TW INC.
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By:
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Name:
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Title:
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By:
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Name:
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Title:
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AOL
LLC
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By:
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Name:
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Title:
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THE
BANK OF NEW YORK MELLON, as Trustee
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By:
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Name:
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Title:
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6
Annex A
______ SUPPLEMENTAL INDENTURE (this
“______ Supplemental
Indenture”) dated as of _________, 20__, among HISTORIC TW INC., a
Delaware corporation (the “Company”), TIME
WARNER INC., a Delaware corporation (“TWX”), AOL LLC, a
Delaware limited liability company (“AOL”), ▇▇▇▇▇▇
BROADCASTING SYSTEM, INC., a Georgia corporation (“TBS”), HOME BOX
OFFICE, INC., a Delaware corporation (“HBO”), and THE BANK OF NEW YORK MELLON
(formerly known as The Bank of New York, as successor trustee to The Chase
Manhattan Bank (formerly known as Chemical Bank)), a New York banking
corporation, as trustee (the “Trustee”).
W I T N E
S S E T H
WHEREAS the Company (as successor to
Time Warner Companies, Inc. (“TWCI”)) 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 (as
successor to TWCI) and the Trustee, the Second Supplemental Indenture, dated as
of October 10, 1996, among the Company (in its own capacity and as successor to
TWCI) and the Trustee (the “Second Supplemental
Indenture”), the Third Supplemental Indenture, dated as of December 31,
1996, among the Company (in its own capacity and as successor to TWCI) and the
Trustee (the “Third
Supplemental Indenture”), the Fourth Supplemental Indenture, dated as of
December 17, 1997, among the Company (in its own capacity and as successor to
TWCI), TBS and the Trustee (the “Fourth Supplemental
Indenture”), the Fifth Supplemental Indenture, dated as of January 12,
1998, among the Company (in its own capacity and as successor to TWCI), TBS and
the Trustee, the Sixth Supplemental Indenture, dated as of March 17, 1998, among
the Company (in its own capacity and as successor to TWCI), TBS and the Trustee
(the “Sixth
Supplemental Indenture”), the Seventh Supplemental Indenture, dated as of
January 11, 2001, among the Company (in its own capacity and as successor to
TWCI), TWX, AOL, TBS and the Trustee (the “Seventh Supplemental
Indenture”), the Eighth Supplemental Indenture, dated as of February 23,
2009, among the Company (in its own capacity and as successor to TWCI), TWX,
AOL, TBS and the Trustee (the “Eighth Supplemental
Indenture”) and the Ninth Supplemental Indenture, dated as of _______,
2009, among the Company (in its own capacity and as successor to TWCI), TWX,
AOL, TBS and the Trustee (the “Ninth Supplemental
Indenture”) [DESCRIBE ADDITIONAL SUPPLEMENTAL INDENTURES (IF ANY)] (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);
WHEREAS TWCI was the original issuer
under the Indenture and the Company (in its own capacity and not as successor to
TWCI) has (a) by way of the Second Supplemental Indenture, unconditionally
and irrevocably guaranteed the obligations of TWCI under the Indenture (the
“Initial HTW
Guarantee”) and extended to the Holders of Securities certain rights and
privileges in connection with the Initial HTW Guarantee, (b) by way of the
Third Supplemental Indenture, extended to the Holders of Securities certain
additional rights and privileges in connection with the Initial HTW Guarantee,
and (c) by way of the Sixth Supplemental Indenture, unconditionally and
irrevocably guaranteed the obligations of TBS under the TBS Guarantee (as
defined below) (the “Additional HTW
Guarantee” and together with the Initial HTW Guarantee, the “HTW Guarantees”) and
extended to the Holders of Securities certain rights and privileges in
connection with the Additional HTW Guarantee;
WHEREAS, pursuant to a certificate of
ownership and merger filed with the Secretary of State of the State of Delaware,
TWCI merged with and into the Company on February 24, 2009, with the
Company being the surviving corporation, and the Company, by way of the Eighth
Supplemental Indenture, assumed all the obligations of TWCI under the
Indenture;
WHEREAS TBS has, by way of the Fourth
Supplemental Indenture, unconditionally and irrevocably guaranteed the
obligations of the Company under the Indenture (the “TBS Guarantee”) and
extended to the Holders of Securities certain rights and privileges in
connection with the TBS Guarantee;
WHEREAS AOL has, by way of the Seventh
Supplemental Indenture, unconditionally and irrevocably guaranteed the
obligations of HTW under the HTW Guarantees (the “AOL Guarantee”) and
extended to the Holders of Securities certain rights and privileges in
connection with the AOL Guarantee, and has, by way of the Eighth Supplemental
Indenture, affirmed that the AOL Guarantee, in so far as it is a guarantee of
the obligations of the Company under the HTW Guarantees, constitutes a guarantee
of the obligations of the Company, in its capacity as successor to TWCI, in
respect of the Securities;
WHEREAS TWX has, by way of the Seventh
Supplemental Indenture, unconditionally and irrevocably guaranteed the
obligations of (a) AOL under the AOL Guarantee and (b) the Company under the HTW
Guarantees (together, the “TWX Guarantee”) and
extended to the Holders of Securities certain rights and privileges in
connection with the TWX Guarantee, and has, by way of the Eighth Supplemental
Indenture, affirmed that the TWX Guarantee, in so far as it is a guarantee of
the obligations of the Company under the HTW Guarantees, constitutes a guarantee
of the obligations of the Company, in its capacity as successor to TWCI, in
respect of the Securities;
WHEREAS Section 803 of the Indenture
provides that Sections 801 and 802 shall not apply to a conveyance or transfer
by AOL of its properties and assets substantially as an entirety unless such
conveyance or transfer constitutes a conveyance or transfer of the properties
and assets of the Company, TWX, AOL and TBS and their respective Subsidiaries,
taken as a whole, substantially as an entirety;
WHEREAS TWX has, by way of Section 3 of
the Ninth Supplemental Indenture, agreed that, in connection with (and only in
connection with), the conveyance or transfer by AOL of its properties and assets
substantially as an entirety, TWX shall cause HBO, its wholly owned subsidiary,
to issue an unconditional and irrevocable guarantee of the full and punctual
payment of the principal of and interest on the Securities when due, whether at
maturity, by acceleration, by redemption or otherwise, and of all other monetary
obligations of the Company under the Indenture (including obligations to the
Trustee thereunder) and the Securities and of the full and punctual performance
within applicable grace periods of all other obligations of the Company under
the Indenture and the Securities (the “HBO
Guarantee”);
2
WHEREAS AOL has conveyed or
transferred, or intends to convey or transfer, its properties and assets
substantially as an entirety;
WHEREAS HBO desires to issue the HBO
Guarantee, subject to the terms and conditions set forth in this ______
Supplemental Indenture;
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, TWX, AOL, TBS and
HBO have duly authorized the execution and delivery of this ______ Supplemental
Indenture, subject to the terms and conditions described herein;
and
WHEREAS the Company, TWX, AOL, TBS and
HBO have requested that the Trustee execute and deliver this ______ Supplemental
Indenture, and all requirements necessary to make this ______ Supplemental
Indenture a valid instrument in accordance with its terms and to make the HBO
Guarantee a valid obligation of HBO, and the execution and delivery of this
______ Supplemental Indenture, have been duly authorized in all
respects.
NOW, THEREFORE, the Company, TWX, AOL,
TBS, HBO and the Trustee hereby agree that this ______ Supplemental Indenture
supplements the Indenture with respect to Securities issued
thereunder:
SECTION 1. Definitions. Unless
otherwise provided herein, the capitalized terms used and not defined herein
have the meanings ascribed to such terms in the Indenture.
SECTION 2. The HBO
Guarantee. (a) HBO irrevocably and unconditionally guarantees,
to each Holder of Securities (including each Holder of Securities issued under
the Indenture after the date of this ______ Supplemental Indenture) 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. HBO 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, TWX, TBS or HBO
(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).
3
(b) HBO further agrees that the HBO
Guarantee constitutes a guarantee of payment, performance and compliance and not
merely of collection.
(c) HBO further agrees to waive
presentment to, demand of payment from and protest to the Company of any of the
HBO Guarantee, the AOL Guarantee, the TWX Guarantee, the TBS Guarantee or the
HTW Guarantees, and also waives diligence, notice of acceptance of the HBO
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 HBO 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 HBO to make any
payment under the HBO Guarantee may be satisfied by causing the Company, AOL,
TWX 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, TWX , TBS or
HBO, or any custodian, trustee, liquidator or other similar official acting in
relation to any of the Company, AOL, TWX, TBS or HBO, any amount paid by any of
the foregoing to the Trustee or such Holder, the HBO Guarantee, to the extent
theretofore discharged, shall be reinstated in full force and
effect.
(e) HBO 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 HBO Guarantee.
(f) Any term or provision of this
______ Supplemental Indenture to the contrary notwithstanding, the maximum
aggregate amount of the HBO Guarantee shall not exceed the maximum amount that
can be hereby guaranteed without rendering this ______ Supplemental Indenture,
as it relates to HBO, voidable under applicable law relating to fraudulent
conveyance or fraudulent transfer or similar laws affecting the rights of
creditors generally.
SECTION 3. Amendment to Defeasance upon
Deposit of Funds or Government Obligations. Section 403
of the Indenture is hereby supplemented and amended by adding the following
sentence after the three 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) of the first
sentence of this Section, then (x), in the event the Company satisfies the
conditions to clause (a) and elects clause (a) to be applicable, HBO
shall be deemed to have paid and discharged the entire indebtedness represented
by, and obligations under, its 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, HBO 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.”
4
SECTION 4. Amendments to the Events of
Default and Remedies. Clause (5) of Section 501 of
the Indenture is hereby supplemented and amended by adding thereto at the end
thereof the following:
“;
(v) default in the performance, or breach, of any covenant or warranty of
HBO 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 HBO by the Trustee or to HBO 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 and stating that such notice is a
‘Notice of Default’ hereunder; or”.
SECTION 5. Amendments to Article
Eight. (a) The introductory clause and
clause (1) of Section 801 of the Indenture are hereby supplemented and
amended to read in their entirety as follows:
“Section 801. Consolidation, Merger,
Conveyance or Transfer on Certain Terms. None of the Company,
TWX, AOL, HBO 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 TWX, AOL,
HBO or TBS, the corporation formed by such consolidation or into which TWX, AOL,
HBO or TBS is merged or the Person which acquires by conveyance or transfer the
properties and assets of TWX, AOL, HBO 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 TWX, AOL, HBO or TBS to be
performed or observed;”
5
(b) Section 802 of the
Indenture is hereby 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, TWX, AOL,
HBO or TBS substantially as an entirety in accordance with Section 801, the
successor Person formed by such consolidation or into which the Company, TWX,
AOL, HBO 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, TWX, AOL, HBO or TBS, as the case may be, under this Indenture with
the same effect as if such successor had been named as the Company, TWX, AOL,
HBO or TBS herein, as the case may be. In the event of any such
conveyance or transfer, the Company, TWX, AOL, HBO 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 6. Supplemental
Indentures. Clauses (1) and (2) of Section 901 of
the Indenture are hereby supplemented and amended to read in their entirety as
follows:
“(1) to
evidence the succession of another corporation or Person to the Company, TWX,
AOL, TBS or HBO, and the assumption by any such successor of the respective
covenants of the Company, TWX, AOL, TBS or HBO herein and in the Securities
contained; or
(2) to
add to the covenants of the Company, TWX, AOL, TBS or HBO or to surrender any
right or power herein conferred upon the Company, TWX, AOL, TBS or HBO, 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 expressly being made solely for the
benefit of one or more specified series); or”.
SECTION 7. This
______ Supplemental
Indenture. This ______ 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 8. GOVERNING
LAW. THIS ______ SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 9. Counterparts. This
______ 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.
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SECTION 10. Headings. The
headings of this ______ Supplemental Indenture are for reference only and shall
not limit or otherwise affect the meaning hereof.
SECTION 11. Trustee Not Responsible for
Recitals. The recitals herein contained are made by the
Company, TWX, AOL, HBO 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 ______ Supplemental Indenture.
SECTION 12. Separability. In
case any one or more of the provisions contained in this ______ 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 ______
Supplemental Indenture or of the Securities, but this ______ Supplemental
Indenture and the Securities shall be construed as if such invalid or illegal or
unenforceable provision had never been contained herein or therein.
[Remainder
of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto
have caused this ______ Supplemental Indenture to be duly executed by their
respective authorized officers as of the date first written above.
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HISTORIC
TW INC.
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By:
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Name:
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Title:
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By:
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Name:
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Title:
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HOME
BOX OFFICE, INC.
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By:
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Name:
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Title:
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AOL
LLC
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By:
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Name:
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Title:
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▇▇▇▇▇▇
BROADCASTING SYSTEM, INC.
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By:
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Name:
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Title:
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THE
BANK OF NEW YORK MELLON, as Trustee
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By:
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Name:
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Title:
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