EXECUTION COPY
FIRST SUPPLEMENTAL INDENTURE (this "First
Supplemental Indenture") dated as of January 11,
2001, among TIME WARNER INC., a Delaware corporation
(the "Company"), AOL TIME WARNER INC., a Delaware
corporation ("AOL Time Warner"), AMERICA ONLINE,
INC., a Delaware corporation ("America Online"), TIME
WARNER COMPANIES, INC., a Delaware corporation
("TWC"), ▇▇▇▇▇▇ BROADCASTING SYSTEM, INC., a Georgia
Corporation ("TBS"), and THE CHASE MANHATTAN BANK
(formerly known as Chemical Bank), a New York banking
corporation, as trustee (the "Trustee").
WHEREAS the Company has executed and delivered to the Trustee
an Indenture (the "Senior Indenture"), dated as of June 1, 1998, 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 Senior Indenture after the date hereof;
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, the Company, America Online Merger Sub Inc. and Time
Warner Merger Sub Inc., America Online and the Company will become wholly owned
subsidiaries of AOL Time Warner;
WHEREAS Section 9.01(5) of the Senior 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 Senior Indenture, in form satisfactory to
the Trustee, for the purpose of adding to the rights of the Holders of the
Securities;
WHEREAS Section 9.01(7) of the Senior 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 Senior Indenture, in form satisfactory to
the Trustee, for the purpose of adding additional Events of Default in respect
of the Securities;
WHEREAS the Company proposes in and by this First Supplemental
Indenture to supplement and amend the Senior
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Indenture in certain respects as it applies to Securities issued thereunder;
WHEREAS America Online desires to unconditionally and
irrevocably guarantee 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 Senior
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 Senior Indenture and the Securities (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 (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 Senior 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 Senior Indenture and the Securities
and (ii) all the monetary obligations of America Online under the America Online
Guarantee (including obligations to the Trustee) and the full and punctual
performance of all other obligations of America Online under the America Online
Guarantee (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, TWC and
TBS have requested that the Trustee execute and deliver this First Supplemental
Indenture and all requirements necessary to make this First 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 First Supplemental Indenture has been duly authorized in all
respects.
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NOW, THEREFORE, the Company, AOL Time Warner, America Online,
TWC, TBS and the Trustee hereby agree that the following Sections of this First
Supplemental Indenture supplement the Senior 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 Senior Indenture.
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 Senior Indenture after the
date of this First 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 Senior
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 Senior Indenture and the Securities.
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, TWC or TBS (except to the extent such judgment is paid) or any
waiver or amendment of the provisions of the Senior 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 Guarantee of TBS or the Guarantee
of TWC, 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
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Online shall not be affected by any failure or policy on the part of the Trustee
to exercise any right or remedy under the Senior 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, TWC 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 Time Warner, America
Online, TWC or TBS, or any custodian, trustee, liquidator or other similar
official acting in relation to any of the Company, AOL Time Warner, America
Online, TWC or TBS, 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 First 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 First 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.
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 Senior Indenture after the
date of this First 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 Senior
Indenture (including obligations to the Trustee) and the Securities, (ii) the
full and punctual performance within applicable grace periods of all other
obligations of the Company under the Senior Indenture and the Securities, (iii)
the full and punctual payment of all monetary obligations of America Online
under the America Online Guarantee (including obligations to the Trustee) and
(iv) the full and punctual performance within applicable grace periods of all
other
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obligations of America Online under the America Online Guarantee. 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,
TWC or TBS (except to the extent such judgment is paid) or any waiver or
amendment of the provisions of the Senior 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 Guarantee of TBS or the Guarantee
of TWC, 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 Senior 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, TWC 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 Time Warner, America
Online, TWC or TBS, or any custodian, trustee, liquidator or other similar
official acting in relation to any of the Company, AOL Time Warner, America
Online, TWC or TBS, 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.
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(f) Any term or provision of this First 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 First 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.
SECTION 4. Amendment to Defeasance upon Deposit of Funds or
Government Obligations. Section 4.03 of Article Four of the Indenture is hereby
supplemented and amended by substituting the following sentence for the sentence
that appears 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, each of AOL Time Warner, America Online,
TBS and TWC shall be deemed to have paid and discharged the entire
indebtedness represented by, and obligations under, their respective
guarantees 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, each of AOL Time Warner, America Online,
TBS and TWC 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 3.01 to be subject to this provision), and clause (5) of
Section 5.01 (and any other Events of Default applicable to such series
of Securities that are determined pursuant to Section 3.01 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."
SECTION 5. Amendments to the Events of Default and Remedies.
(a) Clause (5) of Section 5.01 of Article Five of the Indenture is hereby
amended by redesignating clause (5) as clause (5)(i) and by adding thereto at
the end thereof the following:
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"; or (ii) default in the performance, or breach, of any
covenant or warranty of AOL Time Warner or America Online 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 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 AOL Time Warner or America Online,
as the case may be, by the Trustee or to AOL Time Warner or America
Online, as the case may be, and the Trustee by the Holders or 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".
(b) Clause (6) of Section 5.01 of Article Five of the
Indenture is hereby amended by redesignating clause (6) as clause (6)(i) and by
adding thereto at the end thereof the following:
"; or (ii) the entry of an order for relief against AOL Time
Warner or any Material U.S. Subsidiary thereof under 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
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
property, or ordering the winding up or liquidation of its affairs, and
the continuance of any such decree
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or order unstayed and in effect for a period of 90 consecutive days;
or".
(c) Clause (7) of Section 5.01 of Article Five of the
Indenture is hereby amended by redesignating clause (7) as clause (7)(i) and by
adding thereto at the end thereof the following:
"; or (ii) the consent by AOL Time Warner or any Material U.S.
Subsidiary thereof 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 property, 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".
SECTION 6. Amendments to Article Eight. (a) The introductory
clause and clause (1) of Section 8.01 of Article Eight of the Indenture is
hereby supplemented and amended to read in its entirety as follows:
"Section 8.01. Consolidation, Merger, Conveyance or Transfer
on Certain Terms. None of the Company, AOL Time Warner, America Online,
TBS or TWC shall consolidate with or merge into any other Person 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 Person 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
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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 AOL Time Warner, America
Online, TBS or TWC, the Person formed by such consolidation or into
which AOL Time Warner, America Online, TBS or TWC is merged or the
Person which acquires by conveyance or transfer the properties and
assets of AOL Time Warner, America Online, TBS or TWC substantially as
an entirety shall be either (i) the Company or (ii) a Person organized
and existing under the laws of the United States of America or any
State or the District of Columbia, and in the case of clause (ii),
shall expressly assume, by any 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 AOL Time Warner, America Online, TBS or
TWC to be performed or observed;".
(b) Section 8.02 of Article Eight of the Indenture is
supplemented and amended to read in its entirety as follows:
"Section 8.02. Successor Person Substituted. Upon any
consolidation or merger, or any conveyance or transfer of the
properties and assets of the Company, AOL Time Warner, America Online,
TBS or TWC substantially as an entirety in accordance with Section
8.01, the successor Person formed by such consolidation or into which
the Company, AOL Time Warner, America Online, TBS or TWC 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, AOL Time Warner, America Online, TBS or TWC under this
Indenture with the same effect as if such successor had been named as
the Company, AOL Time Warner, America Online, TBS or TWC herein, as the
case may be. In the event of any such conveyance or transfer, the
Company, AOL Time Warner, America Online, TBS or TWC, 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."
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SECTION 7. Supplemental Indentures. Clauses (1) and (2) of
Section 9.01 of Article Nine of the Indenture are supplemented and amended to
read in their entirety as follows:
"(1) to evidence the succession of another corporation or
Person to the Company, AOL Time Warner, America Online, TBS or TWC, and
the assumption by any such successor of the respective covenants of the
Company, AOL Time Warner, America Online, TBS or TWC herein and in the
Securities contained; or
"(2) to add to the covenants of the Company, AOL Time Warner,
America Online, TBS or TWC or to surrender any right or power herein
conferred upon the Company, AOL Time Warner, America Online, TBS or
TWC, 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 8. Reports. AOL Time Warner 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 9. This First Supplemental Indenture. This First
Supplemental Indenture shall be construed as supplemental to the Senior
Indenture and shall form a part of it, and the Senior Indenture is hereby
incorporated by reference herein and each is hereby ratified, approved and
confirmed.
SECTION 10. GOVERNING LAW. THIS FIRST SUPPLEMENTAL INDENTURE
SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK.
SECTION 11. Counterparts. This First Supplemental Indenture
may be executed in two or more counterparts, each of which shall constitute an
original,
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but all of which when taken together shall constitute but one instrument.
SECTION 12. Headings. The headings of this First Supplemental
Indenture are for reference only and shall not limit or otherwise affect the
meaning hereof.
SECTION 13. Trustee Not Responsible for Recitals. The recitals
herein contained are made by the Company, AOL Time Warner, America Online, TWC
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 First
Supplemental Indenture.
SECTION 14. Separability. In case any one or more of the
provisions contained in this First 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 First Supplemental Indenture or of the Securities, but
this First 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 First
Supplemental Indenture to be duly executed by their respective authorized
officers as of the date first written above.
TIME WARNER INC.,
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
_____________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
AOL TIME WARNER INC.,
By /s/ J. ▇▇▇▇▇▇▇ ▇▇▇▇▇
_____________________________________
Name: J. ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Exec. Vice President and Chief
Financial Officer
AMERICA ONLINE, INC.,
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
_____________________________________
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Exec. Vice President
TIME WARNER COMPANIES, INC.,
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
_____________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇ BROADCASTING SYSTEM, INC.,
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
_____________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
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THE CHASE MANHATTAN BANK, as Trustee,
By /s/ ▇. ▇▇▇▇▇▇▇▇
_____________________________________
Name: ▇. ▇▇▇▇▇▇▇▇
Title: Asst. Vice President