EXECUTION COPY
FIFTH SUPPLEMENTAL INDENTURE (this "Fifth
Supplemental Indenture") dated as of January 12, 1998,
among TIME WARNER COMPANIES, INC., a Delaware corporation
formerly known as Time Warner, Inc. (the "Company"), TIME
WARNER INC., a Delaware corporation formerly known as TW
Inc. ("TWI"), TURNER BROADCASTING SYSTEM, INC., a Georgia
corporation ("TBS"), and THE CHASE MANHATTAN BANK, a New
York banking corporation, as trustee (the "Trustee").
WHEREAS the Company has executed and delivered to the Trustee an
Indenture (the "Original 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 Indenture (as defined below) after the date hereof, as amended by the
First Supplemental Indenture, dated as of June 15, 1993, between the Company and
the Trustee (the "First Supplemental Indenture"), the Second Supplemental
Indenture, dated as of October 10, 1996, among the Company, TWI and the Trustee
(the "Second Supplemental Indenture"), the Third Supplemental Indenture, dated
as of December 31, 1996, among the Company, TWI and the Trustee (the "Third
Supplemental Indenture") and the Fourth Supplemental Indenture, dated as of
December 17, 1997, among the Company, TWI, TBS and the Trustee (the "Fourth
Supplemental Indenture") (the Original Indenture, as amended by the First
Supplemental Indenture, the Second Supplemental Indenture, the Third
Supplemental Indenture and the Fourth Supplemental Indenture is herein called
the "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 establishing any form of Security, as provided in Article Two of the
Indenture, providing for the issuance of any series of Securities as provided in
Article Three of the Indenture and/or adding to the rights of the Holders of the
Securities of any series;
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WHEREAS the Company proposes in and by this Fifth Supplemental
Indenture to supplement and amend the Indenture in certain respects to establish
a series of Securities issued pursuant to the Indenture designated as the 6.95%
Debentures Due 2028 limited in aggregate principal amount to $500,000,000 (the
Debentures and the Exchange Debentures (both as defined herein) together shall
constitute one series of Securities for purposes of the Indenture); and
WHEREAS the Company, TWI and TBS have requested that the Trustee
execute and deliver this Fifth Supplemental Indenture and have certified that
all requirements necessary to make this Fifth Supplemental Indenture a valid
instrument in accordance with its terms have been satisfied, and that the
execution and delivery of this Fifth Supplemental Indenture has been duly
authorized in all respects.
NOW THEREFORE, the Company, TWI, TBS and the Trustee hereby agree
that the following sections of this Fifth Supplemental Indenture supplement and
amend the Indenture with respect to that series of Securities which consists of
Debentures:
SECTION 1. Definitions. (a) Capitalized terms used herein and
not defined herein have the meanings ascribed to such terms in the Indenture.
(b) Section 101 of Article One of the Indenture is hereby
supplemented, solely with respect to that series of Securities which consists of
Debentures, to add the following definitions:
"Agent Members" has the meaning provided in Section 206.
"Debentures" means the series of Securities issued pursuant to
this Indenture designated as the 6.95% Debentures Due 2028 and limited in
aggregate principal amount to $500,000,000.
"Debentures Closing Date" means January 12, 1998.
"Exchange Debentures" means any Debentures to be issued pursuant
to this Indenture in connection with an Exchange Offer (as defined in the
Registration Rights Agreement) pursuant to the Registration Rights Agreement and
this Indenture.
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"Global Debentures" has the meaning provided in Section 202.
"Guarantors" means Time Warner Inc., a Delaware corporation, and
Turner Broadcasting System, Inc., a Georgia corporation.
"Institutional Accredited Investor" means an institution that is
an "accredited investor" as that term is defined in Rule 501(a)(1), (2), (3) or
(7) under the Securities Act.
"Non-U.S. Person" means a Person who is not a "U.S. person" (as
defined in Regulation S).
"Offshore Global Debentures" has the meaning provided in the
Section 202.
"Offshore Physical Debentures" has the meaning provided the
Section 202.
"Physical Debentures" has the meaning provided in Section 202.
"Private Placement Legend" means the legend initially set forth
on the Debentures in the form set forth in Section 205(a).
"QIB" means a "qualified institutional buyer" as defined in Rule
144A.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated January 12, 1998, among the Company, TWI, TBS and Morgan
Stanley & Co. Incorporated, Bear, Stearns & Co. Incorporated, Chase Securities
Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated and J.P. Morgan
Securities Inc. (the "Placement Agents").
"Registration Statement" means the Registration Statement as
defined and described in the Registration Rights Agreement.
"Regulation S" means Regulation S under the Securities Act.
"Rule 144A" means rule 144A under the Securities Act.
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"Securities Act" means the Securities Act of 1933, as amended.
"Shelf Registration Statement" has the meaning provided in the
Registration Rights Agreement.
"U.S. Global Debentures" has the meaning provided in Section 202.
"U.S. Physical Debentures" has the meaning provided in Section
202.
SECTION 2. Creation of Series of Securities. Pursuant to Section
301 of the Indenture, there is hereby created a new series of Securities
designated as the "6.95% Debentures Due 2028" limited in aggregate principal
amount to $500,000,000. The Debentures shall include the Exchange Debentures,
which together shall constitute one series of Securities for purposes of the
Indenture. Certain of the terms of this series of Securities shall be
established by Board Resolution, and the interest rate on the Debentures could
increase by 0.50% per annum under certain circumstances, as provided for in the
Registration Rights Agreement.
SECTION 3. Amendments to Article Two. (a) Section 202 of Article
Two of the Indenture is hereby supplemented and amended, solely with respect to
that series of Securities which consists of Debentures, by adding thereto at the
end thereof the following:
"The Debentures shall be substantially in the form annexed hereto
as Exhibit A. The terms and provisions contained in the form of the Debentures
annexed hereto as Exhibit A shall constitute, and are hereby expressly made, a
part of this Indenture. To the extent applicable, the Company, TWI, TBS and the
Trustee, by their execution and delivery of this Indenture, expressly agree to
such terms and provisions and to be bound thereby.
Debentures offered and sold in reliance on Rule 144A shall be
issued initially in the form of one or more permanent global Debentures in
registered form, substantially in the form set forth in Exhibit A (the "U.S.
Global Debentures"), deposited with the Trustee, as custodian for the
Depository, duly executed by the Company and authenticated by the Trustee as
herein provided. The aggregate principal amount of the U.S. Global Debentures
may
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from time to time be increased or decreased by adjustments made on the
records of the Trustee, as custodian for the Depository or its nominee, as
hereinafter provided.
Debentures offered and sold in offshore transactions in reliance
on Regulation S shall be issued initially in the form of one or more permanent
global Debentures in registered form substantially in the form set forth in
Exhibit A (the "Offshore Global Debentures") deposited with the Trustee, as
custodian of the Depository, duly executed by the Company and authenticated by
the Trustee as hereinafter provided. The aggregate principal amount of the
Offshore Global Debentures may from time to time be increased or decreased by
adjustments made on the records of the Trustee, as custodian for the Depository
or its nominee, as hereinafter provided.
Debentures offered and sold in reliance on Regulation D under the
Securities Act shall be issued in the form of permanent certificated Debentures
in registered form in substantially the form set forth in Exhibit A (the "U.S.
Physical Debentures"). Debentures issued pursuant to Section 206 in exchange for
interests in the Offshore Global Debentures shall be in the form of permanent
certificated Debentures in registered form substantially in the form set forth
in Exhibit A (the "Offshore Physical Debentures").
The Offshore Physical Debentures and U.S. Physical Debentures are
sometimes collectively referred to herein as the "Physical Debentures". The
U.S. Global Debentures and the Offshore Global Debentures are sometimes
collectively referred to herein as the "Global Debentures."
(b) Article Two of the Indenture is hereby supplemented and
amended, solely with respect to that series of Securities which consists of
Debentures, by adding thereto at the end thereof the following new Section 205:
"Section 205. Restrictive Legends. (a) Unless and until a
Debenture is exchanged for an Exchange Debenture in connection with an effective
Registration Statement pursuant to the Registration Rights Agreement, (i) each
U.S. Global Debenture and each U.S. Physical Debenture shall bear the legend set
forth below on the face thereof and (ii) each Offshore Physical Debenture and
each Offshore Global Debenture shall bear the legend set forth below on the face
thereof until at least the 41st day after the Debentures
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Closing Date and receipt by the Company and the Trustee of a certificate
substantially in the form of Exhibit B hereto.
THIS DEBENTURE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE
OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR
BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE.
BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) OR (B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS
DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE
SECURITIES ACT) (AN "INSTITUTIONAL ACCREDITED INVESTOR") OR (C) IT IS
NOT A U.S. PERSON AND IS ACQUIRING THIS DEBENTURE IN
AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE
SECURITIES ACT, (2) AGREES THAT IT WILL NOT, WITHIN TWO YEARS AFTER THE
ORIGINAL ISSUANCE OF THE DEBENTURES, RESELL OR OTHERWISE TRANSFER THIS
DEBENTURE EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) TO A
QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE
SECURITIES ACT, (C) INSIDE THE UNITED STATES TO AN INSTITUTIONAL
ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE
TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND
AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS DEBENTURE
(THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE) AND IF SUCH
TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF DEBENTURES AT
THE TIME OF TRANSFER OF LESS THAN $100,000, AN OPINION OF COUNSEL
ACCEPTABLE TO THE COMPANY THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE
SECURITIES ACT, (D) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION
IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT, (E) PURSUANT TO
THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT (IF AVAILABLE) OR (F) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT, AND (3) AGREES THAT IT
WILL DELIVER TO EACH PERSON TO WHOM THIS DEBENTURE IS TRANSFERRED A
NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH
ANY TRANSFER OF THIS DEBENTURE WITHIN TWO YEARS AFTER THE ORIGINAL
ISSUANCE OF THE DEBENTURES, THE HOLDER MUST CHECK THE APPROPRIATE BOX
SET FORTH ON THE REVERSE HEREOF RELATING TO THE MANNER OF SUCH TRANSFER
AND SUBMIT THIS DEBENTURE TO THE TRUSTEE. IF THE PROPOSED TRANSFEREE IS
AN INSTITUTIONAL ACCREDITED INVESTOR, THE
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HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE AND THE
COMPANY SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS
EITHER OF THEM MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS
BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. AS
USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND
"U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER
THE SECURITIES ACT. THE INDENTURE CONTAINS A PROVISION REQUIRING THE
TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS DEBENTURE IN
VIOLATION OF THE FOREGOING RESTRICTIONS.
(b) Each Global Debenture, whether or not an Exchange Debenture,
shall also bear the following legend on the face thereof:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY OR SUCH OTHER REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY OR
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO.
OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL DEBENTURE SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS
GLOBAL DEBENTURE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH
THE RESTRICTIONS SET FORTH IN SECTION 207 OF THE INDENTURE."
(c) Article Two of the Indenture is hereby supplemented and
amended, solely with respect to that series of Securities which consists of
Debentures, by adding thereto at the end thereof the following new Section 206:
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"Section 206. Book-Entry Provisions for Global Debentures.
(a) The U.S. Global Debentures and Offshore Global Debentures initially shall
(i) be registered in the name of the Depository for such Global Debentures
or the nominee of such Depository, (ii) be delivered to the Trustee as custodian
for such Depository and (iii) bear legends as set forth in Section 205.
Members of, or participants in, the Depository (the "Agent
Members") shall have no rights under this Indenture with respect to any Global
Debenture held on their behalf by the Depository, or the Trustee as its
custodian, or under the Global Debenture and the Depository may be treated by
the Company, TWI, TBS, the Trustee and any agent of the Company, TWI, TBS or the
Trustee as the absolute owner of such Global Debenture for all purposes
whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the
Company, TWI, TBS, the Trustee or any agent of the Company, TWI, TBS, or the
Trustee, from giving effect to any written certification, proxy or other
authorization furnished by the Depository or impair, as between the
Depository and its Agent Members, the operation of customary practices governing
the exercise of the rights of a Holder of any Debenture.
(b) Transfers of a Global Debenture shall be limited to transfers
of such Global Debenture in whole, but not in part, to the Depository, its
successor or their respective nominees. Interests of beneficial owners in a
Global Debenture may be transferred in accordance with the rules and procedures
of the Depository and the provisions of Section 207. In addition, U.S. Physical
Debentures and Offshore Physical Debentures shall be transferred to all
beneficial owners in exchange for their beneficial interests in the U.S. Global
Debentures or the Offshore Global Debentures, respectively, if (i) the
Depository notifies the Company that it is unwilling or unable to continue as
Depository for the U.S. Global Debentures or the Offshore Global Debentures, as
the case may be, and a successor depository is not appointed by the Company
within 90 days of such notice or (ii) an Event of Default has occurred and is
continuing and the Security Registrar has received a request to the foregoing
effect from the Depository.
(c) Any beneficial interest in one of the Global Debentures that
is transferred to a Person who takes delivery in the form of an interest in
the other Global Debenture will, upon transfer, cease to be an interest in
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such Global Debenture and become an interest in the other Global Debenture and,
accordingly, will thereafter be subject to all transfer restrictions, if any,
and other procedures applicable to beneficial interests in such other Global
Debenture for as long as it remains such an interest.
(d) In connection with any transfer of a portion of the
beneficial interests in a U.S. Global Debenture or Offshore Global Debenture to
beneficial owners pursuant to paragraph (b) of this Section, the Security
Registrar shall reflect on its books and records the date and a decrease in the
principal amount of the U.S. Global Debentures or Offshore Global Debentures, as
the case may be, in an amount equal to the principal amount of the beneficial
interest in such Global Debentures to be transferred, and the Company shall
execute, and the Trustee shall authenticate and deliver, one or more U.S.
Physical Debentures or Offshore Physical Debentures, as the case may be, of like
tenor and amount.
(e) In connection with the transfer of the entire U.S. Global
Debenture or Offshore Global Debenture to beneficial owners pursuant to
paragraph (b) of this Section, the U.S. Global Debenture or Offshore Global
Debenture, as the case may be, shall be deemed to be surrendered to the Trustee
for cancelation, and the Company shall execute, and the Trustee shall
authenticate and deliver, to each beneficial owner identified by the Depository
in exchange for its beneficial interest in the U.S. Global Debenture or Offshore
Global Debenture, as the case may be, an equal aggregate principal amount of
U.S. Physical Debentures or Offshore Physical Debentures, as the case may be, of
authorized denominations.
(f) Any U.S. Physical Debenture delivered in exchange for an
interest in the U.S. Global Debenture pursuant to paragraph (b), (d) or (e) of
this Section shall, except as otherwise provided by paragraph (e) of Section
207, bear the legend regarding transfer restrictions applicable to the U.S.
Physical Debenture set forth in Section 205.
(g) Any Offshore Physical Debenture delivered in exchange for an
interest in the Offshore Global Debenture pursuant to paragraph (b), (d) or (e)
of this Section shall, except as otherwise provided by paragraph (e) of Section
207, bear the legend regarding transfer restrictions
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applicable to the Offshore Physical Debenture set forth in Section 205.
(h) The registered holder of a Global Debenture may grant proxies
and otherwise authorize any Person, including Agent Members and Persons that may
hold interests through Agent Members, to take any action which a Holder is
entitled to take under this Indenture or the Debentures.
(i) Beneficial owners of interests in a U.S. Global Debenture may
receive U.S. Physical Debentures (which shall bear the Private Placement Legend
if required by Section 205) in accordance with the procedures of the Depository.
In connection with the execution, authentication and delivery of such U.S.
Physical Debentures, the Security Registrar shall reflect on its books and
records a decrease in the principal amount of the relevant U.S. Global Debenture
equal to the principal amount of such U.S. Physical Debentures and the Company
shall execute and the Trustee shall authenticate and deliver one or more U.S.
Physical Debentures having an equal aggregate principal amount."
(d) Article Two of the Indenture is hereby supplemented and
amended, solely with respect to that series of Securities which consists of
Debentures, by adding thereto at the end thereof the following new Section 207:
"Section 207. Special Transfer Provisions. Unless and until a
Debenture is exchanged for an Exchange Debenture in connection with an effective
Registration Statement pursuant to the Registration Rights Agreement, the
following provisions shall apply:
(a) Transfers to Non-QIB Institutional Accredited Investors. The
following provisions shall apply with respect to the registration of any
proposed transfer of a Debenture to any Institutional Accredited Investor which
is not a QIB (excluding Non-U.S. Persons):
(i) The Security Registrar shall register the transfer of any
Debenture, whether or not such Debenture bears the Private Placement
Legend, if (x) the requested transfer is after the time period referred
to in Rule 144(k) under the Securities Act as in effect with respect to
such transfer or (y) the proposed transferee has delivered to the
Security Registrar (A) a certificate substantially in the form
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of Exhibit C hereto and (B) if the aggregate principal amount of the
Debentures being transferred is less than $100,000 at the time of such
transfer, an opinion of counsel acceptable to the Company that such
transfer is in compliance with the Securities Act.
(ii) If the proposed transferor is an Agent Member holding a
beneficial interest in the U.S. Global Debenture, upon receipt by the
Security Registrar of (x) the documents, if any, required by paragraph
(i) and (y) instructions given in accordance with the Depository's and
the Security Registrar's procedures, the Security Registrar shall
reflect on its books and records the date and a decrease in the
principal amount of the U.S. Global Debenture in an amount equal to the
principal amount of the beneficial interest in the U.S. Global Debenture
to be transferred, and the Company shall execute, and the Trustee shall
authenticate and deliver, one or more U.S. Physical Debentures of like
tenor and amount.
(b) Transfers to QIBs. The following provisions shall apply with
respect to the registration of any proposed transfer of a U.S. Physical
Debenture, an interest in a U.S. Global Debenture or an interest in an Offshore
Global Debenture prior to the removal of the Private Placement Legend to a QIB
(excluding Non-U.S. Persons):
(i) If the Debenture to be transferred consists of (x) either (A)
an interest in a Offshore Global Debenture prior to the removal of the
Private Placement Legend or (B) U.S. Physical Debentures, the Security
Registrar shall register the transfer if such transfer is being made
by a proposed transferor who has checked the box provided for on the
form of Debenture stating, or has otherwise advised the Company and
the Security Registrar in writing, that the sale has been made in
compliance with the provisions of Rule 144A to a transferee who has
signed the certification provided for on the form of Debenture
stating, or has otherwise advised the Company and the Security
Registrar in writing, that it is purchasing the Debenture for its own
account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a QIB within
the meaning of Rule 144A, and is aware that the sale to it is being
made in reliance on Rule 144A and acknowledges that it has received
such information regarding the Company as
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it has requested pursuant to Rule 144A or has determined not to request
such information and that is aware that the transferor is relying upon
its foregoing representations in order to claim the exemption from
registration provided by Rule 144A or (y) an interest in the U.S. Global
Debentures, the transfer of such interest may be effected only through
the book entry system maintained by the Depository.
(ii) If the proposed transferee is an Agent Member, and the
Debenture to be transferred consists of U.S. Physical Debentures, upon
receipt by the Security Registrar of the documents referred to in clause
(i) and instructions given in accordance with the Depository's and the
Security Registrar's procedures, the Security Registrar shall reflect on
its books and records the date and an increase in the principal amount
of the U.S. Global Debentures in an amount equal to the principal amount
of the U.S. Physical Debentures to be transferred, and the Trustee shall
cancel the U.S. Physical Debentures so transferred.
(c) Transfers of Interests in the Offshore Global Debentures or
Offshore Physical Debentures. The following provisions shall apply with respect
to any transfer of interests in the Offshore Global Debentures or Offshore
Physical Debentures:
(i) prior to the removal of the Private Placement Legend from an
Offshore Global Debenture or Offshore Physical Debenture pursuant to
Section 205, the Security Registrar shall refuse to register such
transfer unless such transfer complies with Section 207(b) or
Section 207(d), as the case may be; and
(ii) after such removal, the Security Registrar shall register
the transfer of any such Debenture without requiring any additional
certification.
(d) Transfers to Non-U.S. Persons at Any Time. The following
provisions shall apply with respect to any transfer of a Debenture to a Non-U.S.
Person:
(i) The Security Registrar shall register any proposed transfer
to any Non-U.S. Person if the Debenture to be transferred is a U.S.
Physical Debenture or an interest in the U.S. Global Debenture
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only upon receipt of a certificate substantially in the form of
Exhibit D from the proposed transferor.
(ii) (a) If the proposed transferor is an Agent Member holding a
beneficial interest in a U.S. Global Debenture, upon receipt by the
Security Registrar of (x) the documents required by paragraph (i) and
(y) instructions in accordance with the Depository's and the Security
Registrar's procedures, the Security Registrar shall reflect on its
books and records the date and a decrease in the principal amount of
such U.S. Global Debenture in an amount equal to the principal amount of
the beneficial interest in the U.S. Global Debenture to be transferred,
and (b) if the proposed transferee is an Agent Member, upon receipt by
the Security Registrar of instructions given in accordance with the
Depository's and the Security Registrar's procedures, the Security
Registrar shall reflect on its books and records the date and an
increase in the principal amount of the Offshore Global Debenture in an
amount equal to the principal amount of the U.S. Physical Debentures or
the U.S. Global Debentures, as the case may be, to be transferred, and
the Trustee shall cancel the Physical Debenture, if any, so transferred
or decrease the amount of the U.S. Global Debenture.
(e) Private Placement Legend. Upon the registration of transfer,
exchange or replacement of Debentures not bearing the Private Placement Legend,
the Security Registrar shall deliver Debentures that do not bear the Private
Placement Legend. Upon the registration of transfer, exchange or replacement of
Debentures bearing the Private Placement Legend, the Security Registrar shall
deliver only Debentures that bear the Private Placement Legend unless either (i)
the circumstances contemplated by paragraphs (a)(i)(x) or (c)(ii) of this
Section 207 exist or (ii) there is delivered to the Security Registrar an
Opinion of Counsel reasonably satisfactory to the Company and the Trustee to the
effect that neither such legend nor the related restrictions on transfer are
required in order to maintain compliance with the provisions of the Securities
Act.
(f) General. By its acceptance of any Debenture bearing the
Private Placement Legend, each Holder of such a Debenture acknowledges the
restrictions on transfer of such Debenture set forth in this Indenture and in
the Private
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Placement Legend and agrees that it will transfer such Debenture only as
provided in this Indenture. The Security Registrar shall not register a transfer
of any Debenture unless such transfer complies with the restrictions on transfer
of such Debenture set forth in this Indenture. In connection with any transfer
of Debentures, each Holder agrees by its acceptance of the Debentures to furnish
the Security Registrar or the Company such certifications, legal opinions or
other information as either of them may reasonably require to confirm that such
transfer is being made pursuant to an exemption from, or a transaction not
subject to, the registration requirements of the Securities Act; provided that
the Security Registrar shall not be required to determine (but may conclusively
rely on a determination made by the Company with respect to) the sufficiency of
any such certifications, legal opinions or other information.
The Security Registrar shall retain copies of all letters,
notices and other written communications received pursuant to Section 305 or
this Section 207 in accordance with its customary procedures. The Company shall
have the right to inspect and make copies of all such letters, notices or other
written communications at any reasonable time upon the giving of reasonable
written notice to the Security Registrar."
SECTION 4. Amendment to Article Three. The third paragraph of
Section 305 of Article Three of the Indenture is hereby supplemented and
amended, solely with respect to that series of Securities which consists of
Debentures, to read in its entirety as follows:
"Subject to Sections 204 and 207, at the option of the Holder,
Securities of any series may be exchanged for other Securities of such
series of any authorized denominations, of a like aggregate principal
amount and Stated Maturity and of like tenor and terms (including an
exchange of Debentures for Exchange Debentures), upon surrender of the
Securities to be exchanged at such office or agency. Whenever any
Securities are so surrendered for exchange, the Company shall execute,
and the Trustee shall authenticate and deliver, the Securities which the
Securityholder making the exchange is entitled to receive; provided,
that no exchanges of Debentures for Exchange Debentures shall occur
until a Registration Statement shall have been declared effective by the
Commission (confirmed in an Officers'
15
Certificate delivered to the Trustee) and that any Debentures that are
exchanged for Exchange Debentures shall be canceled by the Trustee."
SECTION 5. This Fifth Supplemental Indenture. This Fifth
Supplemental Indenture and the Exhibits hereto 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 6. GOVERNING LAW. THIS FIFTH SUPPLEMENTAL INDENTURE SHALL
BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 7. Counterparts. This Fifth 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 8. Headings. The headings of this Fifth Supplemental
Indenture are for reference only and shall not limit or otherwise affect the
meaning hereof.
SECTION 9. Trustee Not Responsible for Recitals. The recitals
herein contained are made by the Company, TWI 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 Fifth Supplemental Indenture.
SECTION 10. Separability. In case any one or more of the
provisions contained in this Fifth 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 the Fifth Supplemental Indenture or of the Securities, but
this Fifth Supplemental Indenture and
16
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 Fifth
Supplemental Indenture to be duly executed by their respective authorized
officers as of the date first written above.
TIME WARNER COMPANIES, INC.,
by /s/ Thomas W. McEnerney
------------------------------------
Name: Thomas W. McEnerney
Title: Vice President
TIME WARNER INC.,
by /s/ Thomas W. McEnerney
----------------------------------
Name: Thomas W. McEnerney
Title: Vice President
TURNER BROADCASTING SYSTEM, INC.,
by /s/ Thomas W. McEnerney
----------------------------------
Name: Thomas W. McEnerney
Title: Vice President
THE CHASE MANHATTAN BANK, as
Trustee,
by /s/ Richard Lorenzen
---------------------------------
Name: Richard Lorenzen
Title: Senior Trust Officer
EXHIBIT A
[FORM OF FACE OF DEBENTURE]
TIME WARNER COMPANIES, INC.
6.95% Debenture Due 2028
[CUSIP] [CINS] [ ]
No. $[ ]
TIME WARNER COMPANIES, INC., a Delaware corporation (the
"Company", which term includes any successor under the Indenture hereinafter
referred to), for value received, promises to pay to [ ], or its registered
assigns, the principal sum of [ ] Dollars ($[ ]) on January 15, 2028.
Interest Payment Dates: January 15 and July 15,
commencing July 15, 1998.
Regular Record Dates: December 15 and June 15.
Reference is hereby made to the further provisions of this
Debenture set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
Capitalized terms used herein and not defined herein have the
meanings ascribed thereto in the Indenture dated as of January 15, 1993 (the
"Original Indenture"), as amended by the First Supplemental Indenture, dated as
of June 15, 1993 (the "First Supplemental Indenture"), the Second Supplemental
Indenture, dated as of October 10, 1996 (the "Second Supplemental Indenture"),
the Third Supplemental Indenture, dated as of December 31, 1996 (the "Third
Supplemental Indenture") the Fourth Supplemental Indenture, dated as of December
17, 1997 (the "Fourth Supplemental Indenture") and the Fifth Supplemental
Indenture, dated as of January 12, 1998 (the "Fifth Supplemental Indenture")
(the Original Indenture, as amended by the First Supplemental Indenture, the
Second Supplemental Indenture, the Third Supplemental Indenture, the Fourth
Supplemental Indenture and the Fifth Supplemental Indenture is herein called the
"Indenture"). This Debenture is one of the series of Securities of the Company
issued pursuant to the Indenture and is designated as the 6.95% Debentures Due
2028 (hereinafter referred to as the "Debentures"), limited in aggregate
principal amount to $500,000,000.
IN WITNESS WHEREOF, the Company has caused this Debenture to be
signed manually or by facsimile by its duly authorized officers.
Date: TIME WARNER COMPANIES, INC.
By: _________________________
Vice President
[SEAL]
Attest:
- ---------------------------------
Assistant Secretary
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to in
the within-mentioned Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By:
---------------------------------
Authorized Officer
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[FORM OF REVERSE SIDE OF DEBENTURE]
TIME WARNER COMPANIES, INC.
6.95% Debenture Due 2028
1. Principal and Interest.
The Company promises to pay interest on the principal amount of
this Debenture semiannually on January 15 and July 15 of each year beginning
July 15, 1998, at the office or agency of the Company in the Borough of
Manhattan, The City of New York, in like coin or currency, at the rate per annum
specified in the title hereof. The interest so payable, and punctually paid or
duly provided for, on any January 15 or July 15 will, except as provided in the
Indenture, be paid to the Person in whose name this Debenture (or one or more
Predecessor Securities) is registered at the close of business on the December
15 or June 15 next preceding the interest payment dated (herein called the
"Regular Record Date") whether or not a Business Day, and may, at the option of
the Company, be paid by check mailed to the registered address of such Person.
Any such interest which is payable, but is not so punctually paid or duly
provided for, shall forthwith cease to be payable to the registered Holder on
such Regular Record Date and may be paid either to the Person in whose name this
Debenture (or one or more Predecessor Securities) is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to
be fixed by the Trustee, notice whereof shall be given to Holders of Debentures
not less than 10 days prior to such Special Record Date, or may be paid at any
time in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Debentures may be listed and upon such notice
as may be required by such exchange, if such manner of payment shall be deemed
practicable by the Trustee, all as more fully provided in the Indenture. See
paragraph 12 below for a description of circumstances under which Additional
Interest may accrue on this Debenture.
2. Paying Agent and Registrar.
Initially, the Trustee will be the Paying Agent and the Security
Registrar with respect to this Debenture. The Company reserves the right at any
time to vary or
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terminate the appointment of any Paying Agent or Security Registrar, to appoint
additional or other Paying Agents and other Security Registrars and to approve
any change in the office through which any Paying Agent or Security Registrar
acts; provided that there will at all times be a Paying Agent in The City of
New York.
3. Indenture; Limitations.
This Debenture is one of the duly authorized issue of senior
debentures, notes, bonds or other evidences of indebtedness of the Company, of
the series herein specified, all issued or to be issued under and pursuant to
the Indenture, to which reference is hereby made for a statement of the rights,
limitations of rights, obligations, duties and immunities thereunder of the
Trustee and any agent of the Trustee, any Paying Agent, the Company and the
Holders of the Securities and the terms upon which the Securities are issued and
are to be authenticated and delivered.
The Securities may be issued in one or more series, which
different series may be issued in various aggregate principal amounts, may
mature at different times, may bear interest (if any) at different rates, may
have different conversion prices or exchange provisions (if any), may be subject
to different redemption provisions (if any), may be subject to different
sinking, purchase or analogous funds (if any), may be subject to different
covenants and Events of Default and may otherwise vary as provided or permitted
in the Indenture. This Debenture is one of the series of Securities of the
Company issued pursuant to the Indenture and is designated as the 6.95%
Debentures Due 2028, limited in aggregate principal amount to $500,000,000.
4. Redemption.
The Debentures of this series are not redeemable prior to the
stated maturity of the principal hereof and will not be subject to any sinking
fund.
A-4
5. Denominations; Transfer; Exchange.
The Debentures are issuable in registered form without coupons,
in denominations of $1,000 and integral multiples thereof. Debentures may be
exchanged for a like aggregate principal amount of Debentures of other
authorized denominations at the office or agency of the Company in the Borough
of Manhattan, The City of New York, and in the manner and subject to the
limitations provided in the Indenture.
Upon due presentment for registration of transfer of this
Debenture at the office or agency of the Company in the Borough of Manhattan,
The City of New York, a new Debenture or Debentures of authorized denominations
for a like aggregate principal amount will be issued to the transferee in
exchange therefor, subject to the limitations provided in the Indenture.
No service charge shall be made for any such transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax, assessment or other governmental charge payable in connection therewith.
Subject to the provisions of the Indenture, the Company, the
Trustee and any agent of the Company or the Trustee may treat the Person in
whose name this Debenture is registered as the owner hereof for all purposes,
whether or not this Debenture is overdue, and neither the Company, the Trustee
nor any such agent shall be affected by notice to the contrary.
6. Amendment; Supplement; Waiver.
The Indenture permits, with certain exceptions as therein
provided, the Company and the Trustee, without the consent of the Holders of the
Debentures or any other series of Securities, to enter into indentures
supplemental to the Indenture for, among others, one or more of the following
purposes: (i) to evidence the succession of another Person to the Company or
either Guarantor, and the assumption by such successor of the Company or such
Guarantor's obligations under the Indenture and the Securities of any series;
(ii) to add covenants of the Company and either Guarantor, or surrender any
rights of the Company or either Guarantor, for the benefit of the Holders of
Securities of any or all series; (iii) to cure any ambiguity, or correct
A-5
any inconsistency in the Indenture; (iv) to evidence and provide for the
acceptance of any successor Trustee with respect to one or more series of
Securities or to facilitate the administration of the trusts thereunder by one
or more trustees in accordance with the Indenture; (v) to establish the form or
terms of any series of Securities; and (vi) to provide any additional Events of
Default.
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the Holders of a majority in principal amount of
the outstanding Securities of each series to be affected, to execute
supplemental indentures adding any provisions to or changing or eliminating any
of the provisions of the Indenture or modifying the rights of the Holders of the
Securities of such series to be affected, except that no such supplemental
indenture may, without the consent of all of the Holders of affected Securities,
among other things, change the fixed maturity of any Securities or reduce the
aforesaid percentage of Securities of any series the consent of the Holders of
which is required for any such supplemental indenture.
The Indenture also permits the Holders of a majority in principal
amount of the Securities at the time Outstanding of each series on behalf of the
Holders of all Securities of such series to waive compliance by the Company with
certain provisions of the Indenture and certain past defaults and their
consequences with respect to such series under the Indenture. Any such consent
or waiver by the Holder of this Debenture shall be conclusive and binding upon
such Holder and upon all future Holders of this Debenture and of any Debenture
issued upon the registration of transfer hereof or in exchange hereof or in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Debenture or such other Debentures.
7. Restrictive Covenants.
The Indenture imposes certain limitations on (i) the ability of
the Company and its Subsidiaries to Incur additional Senior Debt, (ii) the
ability of the Company and its Material Subsidiaries to suffer to exist or incur
Liens, and (iii) the ability of the Company or the Guarantors to merge,
consolidate or transfer substantially all of their assets.
A-6
8. Defaults and Remedies.
The Indenture provides that, if an Event of Default specified
therein with respect to the Debentures shall have happened and be continuing,
either the Trustee or the Holders of 25% in aggregate principal amount of the
Debentures (or 25% in aggregate principal amount of all outstanding Securities
under the Indenture, in the case of certain Events of Default affecting all
series of Securities under the Indenture) may declare the principal of all the
Debentures to be due and payable.
Events of Default in respect of the Debentures are provided in
the Indenture and include: (i) default for 30 days in payment of any interest
installment with respect to the Debentures; (ii) default in payment of principal
of, or premium, if any, on, or any sinking fund or analogous payment with
respect to, the Debentures when due at their Stated Maturity, by declaration or
acceleration, when called for redemption or otherwise; (iii) default for 90 days
after notice to the Company (or the Guarantors, if applicable) by the Trustee
thereunder or by Holders of 25% in aggregate principal amount of the Debentures
in the performance of any covenant pertaining to the Debentures; (iv) failure to
pay when due, upon final maturity or upon acceleration, the principal amount of
any indebtedness for money borrowed of the Company in excess of $50 million, if
such indebtedness is not discharged, or such acceleration annulled, within 60
days after written notice; and (v) certain events of bankruptcy, insolvency and
reorganization with respect to either Guarantor, the Company or any Material
Subsidiary of the Company which is organized under the laws of the United States
or any political sub-division thereof.
The Indenture provides that the Holders of a majority in
aggregate principal amount of the outstanding Debentures may direct the time,
method and place of conducting proceedings for remedies available to the Trustee
or exercising any trust or power conferred on the Trustee in respect of such
series, subject to certain conditions.
The Indenture includes a covenant that the Company will file
annually with the Trustee a certificate of no default or specifying any default
that exists.
In certain cases, as provided in the Indenture, the Holders of a
majority in principal amount of the
A-7
outstanding Debentures may on behalf of the Holders of all Debentures of such
series waive any past default or Event of Default with respect to the Debentures
of such series or compliance with certain provisions of the Indenture, except,
among other things, a default not theretofore cured in payment of the principal
of, or premium, if any, or interest, if any, on any of the Debentures.
9. Debenture Guarantee.
The Company's obligations under the Debentures are fully,
unconditionally and irrevocably guaranteed under the Indenture by each of Time
Warner Inc., a Delaware corporation, and Turner Broadcasting System, Inc., a
Georgia corporation.
10. Authentication.
This Debenture shall not be valid until the Trustee or
authenticating agent signs the certificate of authentication on the other side
of this Debenture.
11. Defeasance.
The Indenture provides that the Company (and to the extent
applicable, the Guarantors), at its option, (a) will be Discharged from any and
all obligations in respect of the Debentures (except in each case for certain
obligations to register the transfer or exchange of the Debentures, replace
stolen, lost or mutilated Debentures, maintain paying agencies and hold moneys
for payment in trust) or (b) need not comply with the covenants described above
under "Restrictive Covenants" and certain Events of Default (other than those
arising out of the failure to pay interest or principal on the Debentures and
certain events of bankruptcy, insolvency and reorganization) will no longer
constitute Events of Default with respect to such Debentures, in each case if
the Company deposits with the Trustee, in trust, money or the equivalent in
securities of the government which issued the currency in which the Debentures
are denominated or government agencies backed by the full faith and credit of
such government, or a combination thereof, which through the payment of interest
thereon and principal thereof in accordance with their terms will provide money
in an amount sufficient to pay all the principal (including any mandatory
sinking fund payments) of, and interest on, such series on the dates such
payments
A-8
are due in accordance with the terms of such Debentures. To exercise
any such option, the Company is required, among other things, to deliver to the
Trustee an opinion of counsel to the effect that (i) the deposit and related
defeasance would not cause the Holders of such series to recognize income, gain
or loss for Federal income tax purposes and, in the case of a Discharge pursuant
to clause (a), accompanied by a ruling to such effect received from or published
by the United States Internal Revenue Service and (ii) the creation of the
defeasance trust will not violate the Investment Company Act of 1940, as
amended. In addition, the Company is required to deliver to the Trustee
an Officers' Certificate stating that such deposit was not made by the Company
with the intent of preferring the Holders over other creditors of the Company or
with the intent of defeating, hindering, delaying or defrauding creditors of the
Company or others.
12. Exchange Offer; Registration Rights. [To be included in Debentures other
than (x) Exchange Debentures and (y) Debentures sold pursuant to a Shelf
Registration Statement.]
Pursuant to a Registration Rights Agreement among the Company,
the Guarantors and the Placement Agents, the Company and the Guarantors will
file with the Commission and use their reasonable best efforts to cause to
become effective a registration statement (the "Registration Statement") with
respect to an issue of Debentures identical in all material respects to the
Debentures (the "Exchange Debentures") and, upon becoming effective, to offer
the Holders of the Debentures the opportunity to exchange their Debentures for
the Exchange Debentures (the "Exchange Offer"). In the event that due to a
change in current interpretations by the Commission, the Company and the
Guarantors are not permitted to effect such Exchange Offer, the Company and the
Guarantors will instead file a registration statement covering resales by the
holders of Debentures (a "Shelf Registration Statement") and will use their
reasonable best efforts to cause such Shelf Registration Statement to become
effective and to keep such Shelf Registration Statement effective for two years
from the Debentures Closing Date. The Company and the Guarantors shall, in the
event a Shelf Registration Statement is filed, provide to each Holder of the
Debentures copies of the prospectus and notify each such Holder when the Shelf
Registration Statement has become effective. A Holder that sells Debentures
pursuant to a Shelf Registration Statement
A-9
generally will be required to be named as a selling security holder in the
related prospectus and to deliver a current prospectus to purchasers, and will
be subject to certain of the civil liability provisions under the Securities Act
in connection with such sales. The Exchange Debentures will be issued (i) under
the Indenture or (ii) under an indenture substantially similar to the Indenture,
which, in either event, will provide that the Exchange Debentures will not be
subject to the transfer restrictions described in the Indenture.
Pursuant to the Registration Rights Agreement, the Company and
the Guarantors will use their reasonable best efforts to: (i) file the
Registration Statement or a Shelf Registration Statement with the Commission,
(ii) have such Registration Statement or Shelf Registration Statement
declared effective by the Commission within 180 days after the Debentures
Closing Date and (iii) commence the Exchange Offer and issue the Exchange
Debentures in exchange for all Debentures validly tendered in accordance with
the terms of the Exchange Offer prior to the close of the Exchange Offer, or, in
the alternative, cause such Shelf Registration Statement to remain effective for
two years from the Debentures Closing Date.
If the Company and the Guarantors fail to comply with the above
provisions, additional interest (the "Additional Interest") shall accrue on this
Debenture as follows:
(i) If the Registration Statement or Shelf Registration Statement
is not filed within 150 days following the Debentures Closing
Date, then commencing on the 151st day after the Debentures
Closing Date, Additional Interest shall accrue on the outstanding
principal amount of this Debenture over and above the interest
accruing at the rate specified on the face of this Debenture at a
rate of .50% per annum; or
(ii) If a Registration Statement or Shelf Registration Statement
is not declared effective within 180 days following the
Debentures Closing Date, then commencing on the 181st day after
the Debentures Closing Date, Additional Interest shall accrue on
the outstanding principal amount of this Debenture over and above
the interest accruing at
A-10
the rate specified on the face of this Debenture at a rate of
.50% annum; or
(iii) If either (A) the Company has not exchanged Exchange
Debentures for all Debentures validly tendered in accordance with
the terms of the Exchange Offer on or prior to 45 days after the
date on which the Registration Statement was declared effective,
or (B) if applicable, the Shelf Registration Statement has been
declared effective but such Shelf Registration Statement ceases
to be effective at any time prior to two years from the
Debentures Closing Date, then Additional Interest shall accrue on
the outstanding principal amount of this Debenture over and above
the interest accruing at the rate specified on the face of this
Debenture at a rate of .50% per annum immediately following the
(x) 46th day after such effective date, in the case of (A) above,
or (y) the day such Shelf Registration Statement ceases to be
effective in the case of(B) above;
provided, however, that the Additional Interest rate on this Debenture shall not
exceed .50% per annum; and, provided, further, that (1) upon the filing of the
Registration Statement or Shelf Registration Statement (in the case of (i)
above), (2) upon the effectiveness of the Registration Statement or Shelf
Registration Statement (in the case of (ii) above), or (3) upon the exchange of
Exchange Debentures for all Debentures tendered or upon the effectiveness of the
Shelf Registration Statement which had ceased to remain effective prior to two
years from the Debentures Closing Date (in the case of (iii) above), Additional
Interest on this Debenture as a result of such clause (i), (ii) or (iii) shall
cease to accrue.
Any amounts of Additional Interest due pursuant to clauses (i),
(ii) or (iii) above will be payable in cash, on the same original payment dates
as other interest due on this Debenture. The amount of Additional Interest due
on this Debenture will be determined by multiplying the applicable Additional
Interest rate by the outstanding principal amount of this Debenture, multiplied
by a fraction, the numerator of which is the number of days such Additional
Interest rate was applicable during such period
A-11
(determined on the basis of a 360-day year comprised of twelve 30-day months),
and the denominator of which is 360.
If the Company and the Guarantors effect the Exchange Offer, the
Company and the Guarantors will be entitled to close the Exchange Offer provided
that the Company has accepted all Debentures theretofore validly tendered in
accordance with the terms of the Exchange Offer. Debentures not tendered in the
Exchange Offer shall bear interest at the same rates in effect at the time of
issuance of the Debentures.
13. Obligation To Pay Interest Absolute.
No reference herein to the Indenture and no provision of this
Debenture or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal and any
premium of and any interest on this Debenture at the place, rate and respective
times and in the coin or currency herein and in the Indenture prescribed.
14. Holders' Compliance with Registration Rights Agreement.
Each Holder of a Debenture, by acceptance thereof, acknowledges
and agrees to the provisions of the Registration Rights Agreement, including,
without limitation, the obligations of the Holders with respect to a
registration and the indemnification of the Company and each of the Guarantors
to the extent provided therein.
15. Governing Law.
THIS DEBENTURE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK.
16. Abbreviations.
Customary abbreviations may be used in the name of a Holder or an
assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the
entireties), JT TEN (= joint tenants with right of survivorship and not as
tenants in common), CUST (= Custodian) and U/G/M/A (= Uniform Gifts to Minors
Act).
A-12
The Company will furnish to any Holder upon written request and
without charge a copy of the Indenture. Requests may be made to Time Warner
Companies, Inc., 75 Rockefeller Plaza, New York, New York 10019, Attention of
Manager, Shareholder Relations.
A-13
[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED the undersigned registered holder hereby
sell(s), assign(s) and transfer(s) unto
Insert Taxpayer Identification No.
- ----------------------------------------------------------------------------
Please print or typewrite name and address including zip code of assignee
- ----------------------------------------------------------------------------
the within Debenture and all rights thereunder, hereby irrevocably constituting
and appointing ------------------- attorney to transfer said Debenture on the
books of the Company with full power of substitution in the premises.
[THE FOLLOWING PROVISION TO BE INCLUDED
ON ALL DEBENTURES OTHER THAN EXCHANGE DEBENTURES,
UNLEGENDED OFFSHORE GLOBAL DEBENTURES AND
UNLEGENDED OFFSHORE PHYSICAL DEBENTURES]
In connection with any transfer of this Debenture occurring prior to the
date which is the earlier of (i) the date the shelf registration statement is
declared effective or (ii) the end of the period referred to in Rule 144(k)
under the Securities Act, the undersigned confirms that without utilizing any
general solicitation or general advertising that:
[Check One]
[ ](a) this Debenture is being transferred in compliance with the
exemption from registration under the Securities Act of 1933
provided by Rule 144A thereunder.
or
[ ](b) this Debenture is being transferred other than in accordance with
(a) above and documents are being furnished which comply with the
conditions of transfer set forth in this Debenture and the Indenture.
A-14
If none of the foregoing boxes is checked, the Trustee or other Security
Registrar shall not be obligated to register this Debenture in the name of any
Person other than the Holder hereof unless and until the conditions to any such
transfer of registration set forth herein and in Section 207 of the Indenture
shall have been satisfied.
Date:
------------------------ -----------------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of the within-mentioned
instrument in every particular, without
alteration or any change whatsoever.
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this
Debenture for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act of
1933 and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company as the
undersigned has requested pursuant to Rule 144A or has determined not to request
such information and that it is aware that the transferor is relying upon the
undersigned's foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
Dated:
----------------------- -----------------------------------------
NOTICE: To be executed by an executive
officer
A-15
EXHIBIT B
Form of Certificate
------------, ----
The Chase Manhattan Bank
450 West 33rd Street
New York, NY 10001
Attention: Corporate Trust Administration
Re: Time Warner Companies, Inc. (the "Company")
$500,000,000 6.95% Debentures Due 2028 (the
"Debentures")
Ladies and Gentlemen:
This letter relates to U.S. $________ principal amount of
Debentures represented by a Debenture (the "Legended Debenture") which bears a
legend outlining restrictions upon transfer of such Legended Debenture. Pursuant
to Section 205 of the Indenture dated as of January 15, 1993, as supplemented
and amended (the "Indenture"), relating to the Debentures, we hereby certify
that we are (or we will hold such securities on behalf of) a person outside the
United States to whom the Debentures could be transferred in accordance with
Rule 904 of Regulation S promulgated under the U.S. Securities Act of 1933.
Accordingly, you are hereby requested to exchange the legended certificate for
an unlegended certificate representing an identical principal amount of
Debentures, all in the manner provided for in the Indenture.
You, the Company, Time Warner Inc. and Turner Broadcasting
System, Inc. are entitled to rely upon this letter and are irrevocably
authorized to produce this letter or a copy hereof to any interested party in
any administrative or legal proceedings or official inquiry with respect to the
matters covered hereby. Terms used in this certificate have the meanings set
forth in Regulation S.
Very truly yours,
[Name of Holder]
By: ____________________
Authorized Signature
EXHIBIT C
Form of Certificate to be
Delivered in Connection with
Transfers to Non-QIB Accredited Investors
-------------, ----
The Chase Manhattan Bank
450 West 33rd Street
New York, NY 10001
Attention: Corporate Trust Administration
Re: Time Warner Companies, Inc. (the "Company")
$500,000,000 6.95% Debentures Due 2028 (the
"Debentures")
Ladies and Gentlemen:
In connection with our proposed purchase of $__________ aggregate
principal amount of the Debentures, we confirm that:
1. We understand that any subsequent transfer of the Debentures
is subject to certain restrictions and conditions set forth in the Indenture
dated as of January 15, 1993, as supplemented and amended (the "Indenture"),
relating to the Debentures, and the undersigned agrees to be bound by, and not
to resell, pledge or otherwise transfer the Debentures except in compliance
with, such restrictions and conditions and the Securities Act of 1933 (the
"Securities Act").
2. We understand that the offer and sale of the Debentures have
not been registered under the Securities Act, and that the Debentures may not be
offered or sold except as permitted in the following sentence. We agree, on our
own behalf and on behalf of any accounts for which we are acting as hereinafter
stated, that if we should sell any Debentures, we will do so only (A) to the
Company and Time Warner Inc. and Turner Broadcasting System, Inc. (the
"Guarantors"), or any subsidiary thereof, (B) in accordance with Rule 144A under
the Securities Act to a "qualified institutional buyer" (as defined therein),
(C) to an institutional "accredited investor" (as defined below) that, prior to
such transfer, furnishes (or has furnished on its behalf by a U.S.
broker-dealer) to you and to the Company a signed letter substantially in the
form of this letter, (D) outside the United States in accordance with Rule 904
of Regulation S under the Securities Act, (E) pursuant to the
exemption from registration provided by Rule 144 under the Securities Act, or
(F) pursuant to an effective registration statement under the Securities Act,
and we further agree to provide to any person purchasing any of the Debentures
from us a notice advising such purchaser that resales of the Debentures are
restricted as stated herein.
3. We understand that, on any proposed resale of any Debentures,
we will be required to furnish to you and the Company such certification, legal
opinions and other information as you and the Company may reasonably require to
confirm that the proposed sale complies with the foregoing restrictions. We
further understand that the Debentures purchased by us will bear a legend to the
foregoing effect.
4. We are an institutional "accredited investor" (as defined in
Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and
have such knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of our investment in the Debentures
and any accounts for which we are acting are each able to bear the economic risk
of our or its investment.
5. We are acquiring the Debentures purchased by us for our own
account or for one or more accounts (each of which is an institutional
"accredited investor") as to each of which we exercise sole investment
discretion.
You, the Company and the Guarantors are entitled to rely upon
this letter and are irrevocably authorized to produce this letter or a copy
hereof to any interested party in any administrative or legal proceedings or
official inquiry with respect to the matters covered hereby.
Very truly yours,
[Name of Transferee]
By:
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Authorized Signature
C-2
EXHIBIT D
Form of Certificate to Be Delivered
in Connection with Transfers
Pursuant to Regulation S
-----------------,-----
The Chase Manhattan Bank
450 West 33rd Street
New York, NY 10001
Attention: Corporate Trust Administration
Re: Time Warner Companies, Inc. (the "Company")
$500,000,000 6.95% Debentures Due 2028 (the
"Debentures")
Ladies and Gentlemen:
In connection with our proposed sale of U.S.$_____ aggregate
principal amount of the Debentures, we confirm that such sale has been effected
pursuant to and in accordance with Regulation S under the Securities Act of 1933
and, accordingly, we represent that:
(1) the offer of the Debentures was not made to a person in the
United States;
(2) at the time the buy order was originated, the transferee was
outside the United States or we and any person acting on our behalf reasonably
believed that the transferee was outside the United States;
(3) no directed selling efforts have been made by us in the
United States in contravention of the requirements of Rule 903(b) or Rule 904(b)
of Regulation S, as applicable;
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the U.S. Securities Act of 1933.
You, the Company, Time Warner Inc. and Turner Broadcasting
System, Inc. are entitled to rely upon this letter and are irrevocably
authorized to produce this letter
or a copy hereof to any interested party in any administrative or legal
proceedings or official inquiry with respect to the matters covered hereby.
Terms used in this certificate have the meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:
---------------------------------
Authorized Signature
D-2