Form of Fifth Supplemental Indenture, to the indenture, dated as of June 1, 1998, by and among Historic TW Inc., the guarantors signatory thereto and The Bank of New York Mellon Trust Company, N.A., as Trustee
FIFTH SUPPLEMENTAL INDENTURE (this Fifth Supplemental Indenture) dated as of [●], 2019, among HISTORIC TW INC., a Delaware corporation (the Company), WARNER MEDIA, LLC, a Delaware limited liability company and successor by merger to TIME WARNER INC. (WM), HISTORIC AOL LLC (formerly known as AOL LLC), a Delaware limited liability company (AOL), TURNER BROADCASTING SYSTEM, INC., a Georgia corporation (TBS), HOME BOX OFFICE, INC., a Delaware corporation (HBO), and THE BANK OF NEW YORK MELLON (formerly known as The Bank of New York, as successor trustee to The Chase Manhattan Bank), a New York banking corporation, as trustee (the Trustee).
W I T N E S S E T H
WHEREAS, the Company, WM, AOL, TBS and HBO have executed and delivered to the Trustee an Indenture, dated as of June 1, 1998, as amended and supplemented by the First Supplemental Indenture, dated as of January 11, 2001, the Second Supplemental Indenture, dated as of April 16, 2009, the Third Supplemental Indenture, dated as of December 3, 2009 and the Fourth Supplemental Indenture, dated as of June 14, 2018, and as further amended and supplemented hereby (the Indenture), under which the Company has issued U.S.$1,000,000,000 of its 6 5/8% Debentures due 2029 (the 6 5/8% Debentures);
WHEREAS, Section 9.02 of the Indenture provides, among other things, that, with the consent of the Holders of not less than a majority in principal amount of the Outstanding Securities of all series affected by such supplemental indenture (acting as one class), by Act of said Holders delivered to the Company and the Trustee, the Company, when authorized by a Board Resolution, and the Trustee may, subject to certain exceptions noted therein, enter into a supplemental indenture for the purpose of adding any provisions to or changing in any manner or eliminating any provisions of the Indenture or of modifying in any manner the rights of the Holders of the Securities of each such series under the Indenture;
WHEREAS, AT&T Inc., a Delaware corporation (AT&T) has solicited consents from the Holders of the 6 5/8% Debentures to certain proposed amendments (the Proposed Amendments) to the Indenture as described in the prospectus, dated as of May [●], 2019, filed with the Securities and Exchange Commission, forming part of AT&Ts Registration Statement on Form S-4, setting forth the terms and conditions of the offers by AT&T to exchange any and all of the outstanding 6 5/8% Debentures for new notes issued by AT&T, and in the offer to purchase, dated as of May , 2019, setting forth the terms and conditions of the offers by AT&T to purchase for cash any and all of the outstanding 6 5/8% Debentures, and set forth in Section 2 of this Fifth Supplemental Indenture;
WHEREAS, AT&T has received and caused to be delivered to the Trustee evidence of the consents from Holders of at least a majority of the outstanding aggregate principal amount of the 6 5/8% Debentures to effect the Proposed Amendments under the Indenture with respect to the 6 5/8% Debentures;
WHEREAS, the Company is authorized by a Board Resolution to enter into this Fifth Supplemental Indenture;
WHEREAS, the Company has requested that the Trustee execute and deliver this Fifth Supplemental Indenture; and
WHEREAS, the execution and delivery of this Fifth Supplemental Indenture has been duly authorized by the parties hereto, and all other acts and requirements necessary to make this Fifth Supplemental Indenture a valid and binding supplement to the Indenture effectively amending the Indenture as set forth herein have been duly taken.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company, WM, AOL, TBS, HBO and the Trustee mutually covenant and agree as follows:
SECTION 1. Definitions.
(a) Unless otherwise provided herein, the capitalized terms used and not defined herein have the meanings ascribed to such terms in the Indenture.
(b) Any definitions used exclusively in the provisions of the Indenture or the 6 5/8% Debentures that are deleted pursuant to the amendments set forth under this Fifth Supplemental Indenture, and any definitions used exclusively within such definitions, are hereby deleted in their entirety from the Indenture and the 6 5/8% Debentures, and all textual references in the Indenture and the 6 5/8% Debentures exclusively relating to paragraphs, Sections, Clauses or other terms or provisions of the Indenture that have been otherwise deleted pursuant to this Fifth Supplemental Indenture are hereby deleted in their entirety. The words herein, hereof and hereby and other words of similar import used in this Fifth Supplemental Indenture refer to this Fifth Supplemental Indenture as a whole and not to any particular Section hereof.
SECTION 2. Amendment to the Indenture.
(a) The Indenture shall hereby be amended by deleting the following Sections or clauses of the Indenture and all references and definitions related thereto (to the extent not otherwise used in any other Section of the Indenture or the 6 5/8% Debentures) in their entirety, and these Sections and clauses shall be of no further force and effect, and shall no longer apply to the 6 5/8% Debentures, and the words [INTENTIONALLY DELETED] shall be inserted, in each case, in place of the deleted text:
Section 10.05 (Legal Existence)
Section 10.06 (Limitation on Liens)
(b) Section 8.01 of the Indenture (Consolidation, Merger, Conveyance or Transfer on Certain Terms) is hereby deleted and replaced in its entirety by the following:
The Company shall not consolidate with or merge into any other Person, unless:
(1) the Person formed by such consolidation or into which the Company is merged shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, the due and punctual payment of the principal of (and premium, if any) and interest on all the Securities and the performance of every covenant of this Indenture (as supplemented from time to time) on the part of the Company to be performed or observed; and
(2) the Company has delivered to the Trustee an Officers Certificate and an Opinion of Counsel each stating that such consolidation or merger and such supplemental indenture comply with this Article and that all conditions precedent herein provided for relating to such transaction have been complied with.
(c) Section 8.02 of the Indenture (Successor Person Substituted) is hereby deleted and replaced in its entirety by the following:
Upon any consolidation or merger of the Company in accordance with Section 8.01, the successor Person formed by such consolidation or into which the Company is merged shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor had been named as the Company herein.
(d) Section 5.01(4) of the Indenture (Events of Default) shall be deleted in its entirety and the words [INTENTIONALLY DELETED] shall be inserted in place of the deleted text. For the avoidance of doubt, the reference to Section 5.01(4) in the first sentence of Section 5.02 of the Indenture (Acceleration of Maturity; Rescission and Annulment) shall be deleted.
(e) The failure to comply with the terms of any of the deleted Sections or deleted Clauses of the Indenture set forth above shall no longer constitute a Default or Event of Default under the Indenture with respect to the 6 5/8% Debentures and shall no longer have any consequence under the Indenture.
SECTION 3. This Fifth Supplemental Indenture. This Fifth 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 4. GOVERNING LAW. THIS FIFTH SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 5. WAIVER OF JURY TRIAL. EACH OF THE COMPANY, WM, AOL, HBO, TBS AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS FIFTH SUPPLEMENTAL INDENTURE OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 6. 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 7. Headings. The headings of this Fifth Supplemental Indenture are for reference only and shall not limit or otherwise affect the meaning hereof.
SECTION 8. Trustee Not Responsible for Recitals. The recitals herein contained are made by the Company, WM, AOL, TBS and HBO 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 9. 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 this Fifth Supplemental Indenture or of the Securities, but this Fifth Supplemental Indenture and the Securities shall be construed as if such invalid or illegal or unenforceable provision had never been contained herein or therein.
SECTION 10. Conflict with Trust Indenture Act. If any provision hereof limits, qualifies or conflicts with another provision hereof which is required to be included in this Fifth Supplemental Indenture by any of the provisions of the Trust Indenture Act, such required provision shall control.
SECTION 11. Successors and Assigns. All covenants and agreements in this Fifth Supplemental Indenture by the Company shall bind its successors and assigns, whether so expressed or not.
SECTION 12. Effectiveness. This Fifth Supplemental Indenture shall become effective upon execution by all parties hereto. The Proposed Amendments set forth in Section 2 of this Fifth Supplemental Indenture shall become effective with respect to the 6 5/8% Debentures on the Settlement Date (as defined in the Prospectus).
SECTION 13. Benefits of Fifth Supplemental Indenture. Nothing in this Fifth Supplemental Indenture, express or implied, shall give to any person, other than the parties hereto and their successors hereunder and the Holders, any benefit or any legal or equitable right, remedy, or claim under this Fifth Supplemental Indenture.
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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.
|HISTORIC TW INC.,|
|WARNER MEDIA, LLC,|
|TURNER BROADCASTING SYSTEM, INC.,|
|HOME BOX OFFICE, INC.,|
|HISTORIC AOL LLC,|
|by||Warner Media, LLC, as sole member of Historic AOL LLC|
[Signature Page to Fifth Supplemental Indenture]
|THE BANK OF NEW YORK MELLON, as Trustee,|
[Signature Page to Fifth Supplemental Indenture]