EXHIBIT 4.4
[Draft -- 12/2/96]
THIRD SUPPLEMENTAL INDENTURE (this "Third
Supplemental Indenture"), dated as of December , 1996,
among TIME WARNER COMPANIES, INC. (formerly known as Time
Warner Inc.), a Delaware corporation (the "Company"), TIME
WARNER INC. (formerly known as 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 has executed and delivered to the Trustee an
Indenture (the "Indenture"), dated as of January 15, 1993, 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 an Amended and Restated Agreement and Plan of
Merger, dated as of September 22, 1995, as amended, among the Guarantor, the
Company, Turner Broadcasting System, Inc. ("TBS"), Time Warner Acquisition Corp.
and TW Acquisition Corp., each of the Company and TBS became wholly owned
subsidiaries of the Guarantor;
WHEREAS the Company and Guarantor have executed and delivered to
the Trustee a supplemental Indenture, dated October 10, 1996, among the Company,
the Guarantor and the Trustee providing that the Guarantor will 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 Indenture (including obligations of 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;
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;
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WHEREAS the Guarantor desires to extend to the Holders of
Securities certain rights and privileges in connection with the guarantee of the
Securities by the Guarantor;
WHEREAS the Company and the Guarantor have requested that the
Trustee execute and deliver this Third Supplemental Indenture and all
requirements necessary to make this Third Supplemental Indenture a valid
instrument in accordance with its terms and to make the amendments provided for
herein the valid obligation of the Guarantor, and the execution and delivery of
this Third 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 Third Supplemental Indenture
supplement the Indenture with respect to Securities issued thereunder:
SECTION 1. Definitions. Capitalized terms
used herein and not defined herein have the meanings
ascribed to such terms in the Indenture.
SECTION 2. Amendment to Defeasance upon Deposit of Funds
or Government Obligations. Section 403 of Article 4 of the Indenture is
hereby supplemented and amended by adding the following sentence after
clause (5) and before the definition of "Discharged" in Section 403 of
Article 4 of the Indenture:
"If the Company, at its option, with respect to a series of
Securities, satisfies the applicable conditions pursuant to either
clause (a) or (b) above, then (x), in the event the Company satisfies
the conditions to clause (a) and elects clause (a) to be applicable,
the Guarantor 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, the Guarantor 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
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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."
SECTION 3. Amendments to the Events of Default and Remedies. (a).
Clause (5) of Section 501 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:
"; or (ii) default in the performance, or breach, of any covenant
or warranty of the Guarantor 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
the Guarantor by the Trustee or to the Guarantor 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".
(b) Clause (6) of Section 501 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 the Guarantor
under Title 11, United States Code (the "Federal Bankruptcy Act") by a
court having jurisdiction in the premises or a decree or order by a
court having jurisdiction in the premises adjudging the Guarantor a
bankrupt or insolvent under any other applicable Federal or State law,
or the entry of a decree or order approving as properly filed a petition
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seeking reorganization, arrangement, adjustment or composition of or in
respect of the Guarantor 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 the
Guarantor 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 or order unstayed and in effect for a period of 90
consecutive days; or".
(c) Clause (7) of Section 501 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 the Guarantor to the institution of
bankruptcy or insolvency proceedings against it, or the filing by it of
a petition or answer or consent seeking reorganization or relief under
the Federal Bankruptcy Act or any other applicable Federal or State law,
or the consent by it to the filing of any such petition or to the
appointment of a receiver, liquidator, assignee, trustee, sequestrator
(or other similar official) of the Guarantor 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 the Guarantor in furtherance of any such
action; or".
SECTION 4. Amendments to Article Eight. (a) The introductory
clause and clause (1) of Section 801 of Article Eight of the Indenture is
hereby supplemented and amended to read in its entirety as follows:
"Section 801. Consolidation, Merger, Conveyance or Transfer on
Certain Terms. Neither the Company nor the Guarantor 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
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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 any 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 the Guarantor,
the corporation formed by such consolidation or into which the Guarantor
is merged or the Person which acquires by conveyance or transfer the
properties and assets of the Guarantor 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 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 the Guarantor to be performed or
observed;".
(b). Section 802 of Article Eight of the Indenture is
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 or the Guarantor substantially as an entirety
in accordance with Section 801, the successor Person formed by such
consolidation or into which the Company or the Guarantor 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
or the Guarantor, as the case may be, under this Indenture with the
same effect as if such successor had been named as the Company or the
Guarantor herein, as the case may be. In the event of any such
conveyance or transfer, the predecessor as the Company or the
Guarantor, as the case may be, 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 5. Supplemental Indentures. Clauses
(1) and (2) of Section 901 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 or the Guarantor, and the assumption by any such
successor of the respective covenants of the Company or the Guarantor
herein and in the Securities contained; or
(2) to add to the covenants of the Company or the Guarantor, or
to surrender any right or power herein conferred upon the Company or the
Guarantor, 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 6. This Third Supplemental Indenture. This Third
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 7. Governing Law. THIS THIRD SUPPLEMENTAL
INDENTURE SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
SECTION 8. Counterparts. This Third 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 9. Headings. The headings of this Third
Supplemental Indenture are for reference only and shall not
limit or otherwise affect the meaning hereof.
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SECTION 10. 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 have no responsibility whatsoever for or in respect of the
validity or sufficiency of this Third Supplemental Indenture.
SECTION 11. Separability. In case any one or more of the
provisions contained in this Third 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 Third Supplemental Indenture or of the Securities, but
this Third Supplemental Indenture and the Securities shall be construed as if
such invalid or illegal or unenforceable provision had never been contained
herein or therein.
IN WITNESS WHEREOF, the parties hereto have caused this Third
Supplemental Indenture to be duly executed by their respective authorized
officers as of the date first written above.
TIME WARNER COMPANIES, INC.,
by
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Name: Thomas W. McEnerney
Title: Vice President
TIME WARNER INC.,
by
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Name: Thomas W. McEnerney
Title: Vice President
THE CHASE MANHATTAN BANK, as
Trustee,
by
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Name: Richard Lorenzen
Title: Senior Trust Officer