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EXHIBIT 4.6
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TELE-COMMUNICATIONS, INC.
and
THE BANK OF NEW YORK, Trustee
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SECOND SUPPLEMENTAL INDENTURE
Dated as of February 25, 2000
Supplement to Indenture Dated as of February 19, 1998
as supplemented by
First Supplemental Indenture Dated as of March 9, 1999
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7.125% Senior Notes due 2028
6.375% Senior Notes due 2003
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THIS SECOND SUPPLEMENTAL INDENTURE (this "Supplemental Indenture") is made
as of February 25, 2000, between TELE-COMMUNICATIONS, INC., a Delaware
corporation ("TCI" or, the "Company"), as successor issuer, and THE BANK OF NEW
YORK, a New York banking corporation (the "Trustee"), as trustee.
RECITALS
WHEREAS, TCI and the Trustee are parties to an Indenture, dated as of
February 19, 1998, as supplemented by a First Supplemental Indenture, dated as
of March 9, 1999 (collectively, the "Original Indenture"), pursuant to which the
Company issued (as successor issuer), and the Trustee authenticated and
delivered the following securities which are, as of the date hereof, currently
outstanding (collectively, the "Securities"):
(a) $300,000,000 aggregate principal amount of the Company's 7.125% Senior Notes
due 2028; and
(b) $750,000,000 aggregate principal amount of the Company's 6.375% Senior Notes
due 2003;
WHEREAS, the Board of Directors of TCI has determined that it is in the
best interests of TCI to convert its corporate form from a Delaware corporation
to a Delaware limited liability company pursuant to Section 266 of the Delaware
General Corporation Law and Section 18-214 of the Delaware Limited Liability
Company Act (the "Conversion");
WHEREAS, the Board of Directors of TCI has determined that it is advisable
to amend certain provisions of the Original Indenture which may affect the
Conversion;
WHEREAS, the Original Indenture provides that the Company and the Trustee
may amend or supplement the Original Indenture or the Securities of any series
without notice to or consent of any Holder of Securities or coupons to make any
change that, in the opinion of the Board of Directors, does not materially
adversely affect the rights of any Securityholder or the Holder of any coupon;
WHEREAS, the Board of Directors of TCI has determined that the amendments
to the Indenture contained in this Supplemental Indenture do not materially
adversely affect the rights of any Securityholder or the Holder of any coupon;
and
WHEREAS, this Supplemental Indenture has been duly authorized by all
necessary action on the part of TCI.
NOW, THEREFORE, TCI and the Trustee agree as follows for the equal and
ratable benefit of the Holders:
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ARTICLE I
DEFINITIONS; INTERPRETATION
SECTION 1.1 Definitions. Capitalized terms that are defined in the
preamble or the recitals hereto shall have such meanings
throughout this Supplemental Indenture. Capitalized terms used
but not defined in this Supplemental Indenture have the meanings
assigned thereto in the Original Indenture. The meanings assigned
to all defined terms used in this Supplemental Indenture shall be
equally applicable to both the singular and plural forms of such
defined terms. The term "Indenture" as used herein means the
Original Indenture, as amended and supplemented by this
Supplemental Indenture, or as otherwise supplemented or amended
from time to time by one or more indentures supplemental thereto
or hereto entered into pursuant to the applicable provisions of
the Indenture.
SECTION 1.2 Interpretation. References in the Original Indenture
(including references in the Original Indenture as amended or
supplemented hereby) to "this Indenture" (and indirect references
such as "hereunder," "herein" and "hereof") shall be deemed
references to the Original Indenture as amended and supplemented
hereby. All of the covenants, agreements and provisions of this
Supplemental Indenture shall be deemed to be and construed as
part of the Original Indenture to the same effect as if fully set
forth therein and shall be fully enforceable in the manner
provided in the Original Indenture. Except as otherwise provided
in this Supplemental Indenture, all of the covenants, agreements
and provisions of the Original Indenture shall remain in full
force and effect.
ARTICLE II
AMENDMENTS
SECTION 2.1 Amendments. The following provisions of the Original
Indenture are hereby amended, modified, supplemented or replaced
as follows:
(a) The definition of "Board of Directors" contained in Article
One, Section 1.01 of the Original Indenture is amended to read in
its entirety as follows: "Board of Directors means the Board of
Directors of the Company or any authorized committee thereof, or,
if the Company is not a corporation, the equivalent decision
making body thereof or authorized committee thereof."
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(b) The definition of "Officer" contained in Article One,
Section 1.01 of the Original Indenture is amended to add the
words "(if any)" after the words "Chairman of the Board."
(c) Article Four, Section 4.07 is hereby amended to replace the
word "corporate" appearing in the heading to such section and as
the second to the last word of such section with the word
"legal."
(d) Article Five is hereby amended to replace the word
"CORPORATION" appearing in the heading thereof with the word
"ENTITY."
(e) Article Five, Section 5.01 is hereby amended to insert the
words "or limited liability company" after each occurrence of the
word "corporation."
(f) Article Five, Section 5.01 is also hereby amended to insert
the following words as a new paragraph after the first paragraph
thereof: "Nothing in this Indenture shall prohibit the Company
from effecting a conversion pursuant to applicable law of the
Company from a corporation into a limited liability company or
from a limited liability company into a corporation, and any such
conversion shall not be deemed to be a consolidation, merger or
transfer subject to the requirements of the immediately preceding
paragraph, provided, that such conversion by law shall not be
deemed to affect any obligations or liabilities of the Company
incurred prior to such conversion (including obligations or
liabilities with respect to the Securities). Notice of any such
conversion shall be promptly delivered to the Trustee."
(g) Article Ten, Section 10.15 is hereby amended to insert the
words "or limited liability company" after the word "corporation"
in clause (2) thereof.
ARTICLE III
MISCELLANEOUS
SECTION 3.1 Conflict with the TIA. If any provision of this Supplemental
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
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of the TIA shall be deemed to apply to this Supplemental
Indenture, as so modified or excluded, as the case may be.
SECTION 3.2 Date and Time of Effectiveness. This Supplemental Indenture
shall become a legally effective and binding instrument at and as
of the date hereof.
SECTION 3.3 Securities Deemed Conformed. As of the date hereof, the
provisions of each Security then outstanding shall be deemed to
be conformed, without the necessity for any reissuance or
exchange of such Security or any other action on the part of the
Holders, TCI or the Trustee, so as to reflect this Supplemental
Indenture.
SECTION 3.4 Successors. All agreements of TCI and the Trustee in this
Supplemental Indenture and in the Indenture shall bind their
respective successors.
SECTION 3.5 Benefits of Supplemental Indenture. Nothing in this
Supplemental Indenture, express or implied, shall give to any
person, other than the parties hereto and their successors
hereunder, any Agent, Authenticating Agent and the Holders, any
benefit or any legal or equitable right, remedy or claim under
this Supplemental Indenture or the Indenture.
SECTION 3.6 Separability. In case any provision in this Supplemental
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.
SECTION 3.7 Trustee Responsibility. The Trustee assumes no duties,
responsibilities or liabilities by reason of this Supplemental
Indenture other than as set forth in the Original Indenture. The
Trustee assumes no responsibility for the correctness of the
statements herein contained, which shall be taken as statements
of TCI. 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 Original Indenture, as fully as
if said terms and conditions were herein set forth in full.
SECTION 3.8 Headings. The Article and Section headings of this
Supplemental Indenture 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.
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SECTION 3.9 Counterparts. This Supplemental Indenture may be executed in
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.
SECTION 3.10 Notices. The addresses for notices to the Company and the
Trustee set forth in Section 11.02 of the Original Indenture
shall be amended, without further action, to read in their
entirety as follows:
"If to the Company:
Tele-Communications, Inc.
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Treasurer
If to the Trustee:
The Bank of New York
000 Xxxxxxx Xxxxxx, Xxxxx 00X
Xxx Xxxx, Xxx Xxxx 00000"
SECTION 3.11 Governing Law. This Supplemental Indenture shall be governed
by 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.
TELE-COMMUNICATIONS, INC.
By:
--------------------------------
Name:
Title:
THE BANK OF NEW YORK, as Trustee
By:
--------------------------------
Name:
Title:
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