EXHIBIT 4.3
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PRIMESTAR, INC.
and
THE BANK OF NEW YORK, Trustee
____________________
SECOND SUPPLEMENTAL INDENTURE
Dated as of April 27, 1999
To the Indenture
Dated as of February 20, 1997
____________________
10-7/8%% Senior Subordinated Notes due 2007
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SUPPLEMENTAL INDENTURE NO. 2 dated as of April 27, 1999 (this
"Supplemental Indenture") between PRIMESTAR, Inc., a Delaware corporation (the
"Company"), and The Bank of New York, as trustee ("Trustee").
W I T N E S S E T H:
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WHEREAS, (i) TCI Satellite Entertainment, Inc. ("TSAT") and the
Trustee entered into the Indenture, dated as of February 20, 1997 (the "Original
Indenture"), with respect to $200,000,000 aggregate principal amount of 10-7/8%
Senior Subordinated Notes due 2007, Series A and Series B (the "Notes") and (ii)
TSAT, the Company, and the Trustee entered into the First Supplemental Indenture
to the Original Indenture, dated as of April 1, 1998 (the "First Supplemental
Indenture" and, together with the Original Indenture, the "Indenture"), pursuant
to which the Company assumed TSAT's obligations with respect to the Notes;
WHEREAS, all capitalized terms used but not defined herein shall have
the same meanings ascribed to such terms in the Indenture;
WHEREAS, Section 10.02 of the Indenture provides that the Company and
the Trustee may amend or supplement certain provisions of the Indenture with the
consent of the Holders of at least a majority in principal amount of the Notes
then outstanding;
WHEREAS, the Company, Holders constituting at least a majority in
principal amount of the Notes outstanding and certain other parties have entered
into that certain lock-up agreement, dated as of April 20, 1999 (the "Lock-up
Agreement"), pursuant to which such Holders consented to the Proposed Amendments
(as defined in the Lock-up Agreement) to the Indenture;
WHEREAS, in accordance with the terms of the Lock-up Agreement, the
holders of a majority in principal amount of the outstanding Notes have
consented to the Proposed Amendments to be effected by this Supplemental
Indenture;
WHEREAS, the Company has authorized the execution and delivery of this
Supplemental Indenture and the Trustee has received an Opinion of Counsel and an
Officers' Certificate pursuant to Sections 10.06 and 13.04 of the Indenture, and
therefore the Company and the Trustee are authorized to execute and deliver this
Supplemental Indenture;
NOW THEREFORE, in consideration of good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, the parties hereto
agree as follows:
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SECTION 1. AMENDMENTS TO INDENTURE.
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(a) Effective as of the Operative Date (as hereinafter defined), the
following sections of the Indenture are hereby eliminated: Section 4.03; Section
4.04; Section 4.06; Section 4.07; Section 4.08; Section 4.09; Section 4.10;
Section 4.15; Section 4.16; Section 4.17; Section 4.18; Section 4.20; Section
4.21; Section 4.22; Section 5.01; Section 5.02; Section 6.01(6); and Section
6.01(7).
The text of the above sections are replaced by the phrase
"Intentionally deleted", and the surrounding sections are not renumbered.
(b) All definitions set forth in Section 1.01 that relate to defined
terms used solely in sections deleted hereby are deleted in their entirety as of
the Operative Date (as defined below).
SECTION 2. MISCELLANEOUS.
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(a) Operative Date. The amendments to the Indenture made hereby shall
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only become effective on the Note Purchase Closing Date (as defined in the Lock-
up Agreement) applicable to the Notes (the "Operative Date"). This Supplemental
Indenture is effective upon execution.
(b) Conflict with the TIA. If any provision of this Supplemental
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Indenture modifies or excludes any provision of the TIA that is required under
such Act to be part of and govern the Indenture, the latter provision of the TIA
shall control. If any provision hereof modifies or excludes any provision of
the TIA that may be so modified or excluded, the latter provision of the TIA
shall be deemed to apply to this Supplemental Indenture, as so modified or
excluded, as the case may be.
(c) Notes Deemed Conformed. Beginning at the Operative Date, the
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provisions of each Note then outstanding shall be deemed to be conformed,
without the necessity for any reissuance or exchange of such Note or any other
action on the part of the Holders, the Company or the Trustee, so as to reflect
this Supplemental Indenture.
(d) Successors. All agreements of the Company and the Trustee in this
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Supplemental Indenture and in the Indenture shall bind their respective
successors.
(e) Benefits of Supplemental Indenture. Nothing in this Supplemental
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Indenture, express or implied, shall give to any person, other than the parties
hereto and their successors hereunder, any Agent and the Holders, any benefit or
any legal or equitable right, remedy or claim under this Supplemental Indenture
or the Indenture.
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(f) Separability. In case any provision in this Supplemental
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Indenture, or in the Indenture, shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby, it being intended that all of the
provisions hereof shall be enforceable to the full extent permitted by law.
(g) Trustee Responsibility. The Trustee assumes no duties,
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responsibilities or liabilities by reason of this Supplemental Indenture other
than as set forth in the Indenture. The Trustee assumes no responsibility for
the correctness of the statements herein contained, which shall be taken as
statements of the Company. This Supplemental Indenture is executed and accepted
by the Trustee subject to all of the terms and conditions of its acceptance of
the trust under the Indenture, as fully as if said terms and conditions were
herein set forth in full.
(h) Headings. The Section headings of this Supplemental Indenture
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have been inserted for convenience of reference only, are not to be considered a
part of this Supplemental Indenture and shall in no way modify or restrict any
of the terms or provisions hereof.
(i) Counterparts. This Supplemental Indenture may be executed in
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counterparts, each of which shall for all purposes be deemed to be an original,
and all such counterparts shall together constitute but one and the same
instrument.
(j) Governing Law. This Supplemental Indenture shall be governed by
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and construed in accordance with the internal laws of the State of New York.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the day and year first above written.
PRIMESTAR, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: SVP & Chief Financial Officer
THE BANK OF NEW YORK
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Vice President
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