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EXHIBIT 4.2
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TELE-COMMUNICATIONS, INC.
and
THE BANK OF NEW YORK, Trustee
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FIRST SUPPLEMENTAL INDENTURE
Dated as of February 25, 2000
Supplement to Indenture Dated as of August 9, 1991
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Medium Term Notes, Series A
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THIS FIRST 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
August 9, 1991 (the "Original Indenture"), pursuant to which the Company issued
(as successor issuer), and the Trustee authenticated and delivered certain
Medium Term Notes, Series A, which are, as of the date hereof, currently
outstanding (the "Securities");
WHEREAS, the initial parties to the Original Indenture were the Trustee
and TCI Communications, Inc. (formerly named "Tele-Communications, Inc.")
("TCIC");
WHEREAS, on March 9, 1999, TCIC merged with an into TCI with TCI being
the surviving corporation (the "Merger"), pursuant to an Agreement and Plan of
Merger, dated as of January 12, 1999;
WHEREAS, upon the completion of the Merger the separate corporate
existence of TCIC ceased;
WHEREAS, upon completion of the Merger, TCI assumed all of the
obligations and liabilities of TCIC (including all liabilities and obligations
with respect to the Securities);
WHEREAS, immediately after giving effect to the Merger, no Default or
Event of Default occurred or was continuing under the Original Indenture;
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;
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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:
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.
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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."
(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) The definition of "Subsidiary" contained in Article One,
Section 1.01 of the Original Indenture is amended in its entirety to
read as follows: "Subsidiary means any corporation, association,
partnership or other business entity of which a majority of the total
voting power of the capital stock or other interests (including
partnership interests) entitled (without regard to the occurrence of a
contingency) to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by
(i) the Company, (ii) the Company and one or more of its Subsidiaries
or (iii) one or more Subsidiaries of the Company."
(d) Article Four, Section 4.08 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."
(e) Article Five is hereby amended to replace the word
"CORPORATION" appearing in the heading thereof with the word "ENTITY."
(f) Article Five, Section 5.01 is hereby amended to insert the
words "or limited liability company" after each occurrence of the word
"corporation."
(g) 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
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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."
(h) Article Ten, Section 10.15 is hereby amended to insert the
words "or limited liability company" after the word "corporation" in
clause (2) thereof.
(i) Article Ten, Section 10.16 is hereby amended to insert the
words "or limited liability company" after each occurrence of the word
"corporation."
ARTICLE III
THE MERGER
SECTION 3.1 Acknowledgment of Prior Assumption by TCI. TCI, as the
surviving corporation of the Merger, became fully responsible upon the
completion of the Merger, without any further action, for: (i) the payment of
the principal (and premium, if any) and interest on, and any Additional Amounts
with respect to, the Securities according to their tenor and the Indenture; and
(ii) the performance and observance of all of the other covenants and provisions
of the Securities and the Indenture. Upon such assumption, TCI succeeded to and
was substituted for TCIC with the same effect as if it had been named in the
Indenture as the original issuer, and TCIC thereupon was relieved of any further
liability or obligation under the Indenture or upon the Securities. Upon and
following the completion of the Merger, all references to the "Company" in the
Indenture and the Securities are deemed references to TCI, until a successor
replaces it pursuant to the applicable provisions of the Indenture and
thereafter the "Company" shall mean such successor.
SECTION 3.2 Representations, Warranties and Covenants Regarding the
Merger. TCI represents, warrants and covenants to the Trustee as follows:
(a) Immediately following the completion of the Merger, TCI
was a corporation duly organized and validly existing under the laws of
the State of Delaware; and
(b) Immediately after giving effect to the Merger, no Default
or Event of Default occurred or was continuing.
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ARTICLE IV
MISCELLANEOUS
SECTION 4.1 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 of the TIA shall be deemed to apply to this Supplemental Indenture, as
so modified or excluded, as the case may be.
SECTION 4.2 Date and Time of Effectiveness. This Supplemental Indenture
shall become a legally effective and binding instrument at and as of the date
hereof.
SECTION 4.3 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 4.4 Successors. All agreements of TCI and the Trustee in this
Supplemental Indenture and in the Indenture shall bind their respective
successors.
SECTION 4.5 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 4.6 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 4.7 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
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acceptance of the trust under the Original Indenture, as fully as if said terms
and conditions were herein set forth in full.
SECTION 4.8 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.
SECTION 4.9 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 4.10 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 4.11 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:
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Name:
Title:
THE BANK OF NEW YORK, as Trustee
By:
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Name:
Title:
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