EXHIBIT 4.1
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TCI COMMUNICATIONS, INC.
AND
THE BANK OF NEW YORK,
Trustee
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THIRD SUPPLEMENTAL
INDENTURE
TO
INDENTURE
Dated as of March 14, 1997
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____% Subordinated Deferrable Interest Notes due March 31, 2027
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TABLE OF CONTENTS
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Page
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ARTICLE I
DEFINITIONS
Section 1.1. Definition of Terms......................2
Section 1.2. Interpretation...........................5
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE NOTES
Section 2.1. Designation and Principal Amount.........5
Section 2.2. Maturity.................................5
Section 2.3. Form and Payment.........................5
Section 2.4. Global Note..............................6
Section 2.5. Interest.................................6
ARTICLE III
REDEMPTION OF THE NOTES
Section 3.1. Tax Event Redemption.....................7
Section 3.2. Optional Redemption by Company...........8
Section 3.3. No Sinking Fund..........................9
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
Section 4.1. Extension of Interest Payment Period.....9
Section 4.2. Notice of Extension.....................10
ARTICLE V
EXPENSES
Section 5.1. Payment of Expenses.....................10
ARTICLE VI
SUBORDINATION
Section 6.1. Agreement to Subordinate................11
Section 6.2. Default on Senior Indebtedness..........12
Section 6.3. Liquidation; Dissolution; Bankruptcy....12
Section 6.4. Subrogation.............................13
Section 6.5. Trustee to Effectuate Subordination.....14
Section 6.6. Notice by the Company...................14
Section 6.7. Rights of the Trustee; Holders of
Senior Indebtedness.....................15
Section 6.8. Subordination May Not Be Impaired.......16
Section 6.9. Pari Passu Debt.........................16
ARTICLE VII
RESERVED
ARTICLE VIII
FORM OF NOTE
Section 8.1. Form of Note............................16
ARTICLE IX
ORIGINAL ISSUE OF NOTES
Section 9.1. Original Issue of Notes.................24
ARTICLE X
CERTAIN COVENANTS
Section 10.1. Limitation on Dividends and Other
Payments................................24
Section 10.2. Covenants as to the Trust...............25
ARTICLE XI
CERTAIN EVENTS OF DEFAULT
Section 11.1. Additional Events of Default............25
Section 11.2. Waiver of Existing Defaults.............25
ARTICLE XII
MISCELLANEOUS
Section 12.1. Supplemental Indenture Incorporated
Into Indenture..........................26
Section 12.2. Trustee Not Responsible for Recitals;
Disclaimer..............................26
Section 12.3. Governing Law. .........................26
Section 12.4. Separability............................26
Section 12.5. Counterparts............................26
Section 12.6. Acknowledgment of Rights of Holders
of Capital Securities...................26
ii
THIS THIRD SUPPLEMENTAL INDENTURE, dated as of March 14, 1997 (this
"Third Supplemental Indenture"), between TCI Communications, Inc., a Delaware
corporation (the "Company"), and The Bank of New York, a New York banking
corporation, not in its individual capacity but solely as trustee (the
"Trustee"), under the Indenture dated as of January 29, 1996 between the Company
and the Trustee (the "Indenture").
W I T N E S S E T H:
WHEREAS, the Company executed and delivered the Indenture to the
Trustee to provide for the future issuance of the Company's unsecured
subordinated Securities, to be issued from time to time in one or more series as
might be determined by the Company in accordance with the Indenture, in an
unlimited aggregate principal amount which may be authenticated and delivered as
provided in the Indenture; and
WHEREAS, pursuant to the terms of the Indenture, the Company desires
to provide for the establishment of a new series of its Securities to be known
as its 9.65% Subordinated Deferrable Interest Notes due March 31, 2027 (the
"Notes"), the form and substance of such Notes and the terms, provisions and
conditions thereof to be as set forth in the Indenture and this Third
Supplemental Indenture; and
WHEREAS, TCI Communications Financing III, a Delaware statutory
business trust (the "Trust"), has offered to the public $300,000,000 aggregate
liquidation amount of its 9.65% Capital Securities (the "Capital Securities")
and has offered to the Company $9,279,000 aggregate liquidation amount of its
Common Securities (the "Common Securities" and, together with the Capital
Securities, the "Trust Securities"), such Trust Securities representing
undivided beneficial interests in the assets of the Trust, and proposes to
invest the proceeds from such offering in $309,279,000 aggregate principal
amount of the Notes; and
WHEREAS, the Company has requested the Trustee to execute and deliver
this Third Supplemental Indenture, and all requirements necessary to make this
Third Supplemental Indenture a valid instrument, in accordance with its terms,
and to make the Notes, when executed by the Company and authenticated and
delivered by the Trustee, the valid obligations of the Company, have been
performed, and the execution and delivery of this Third Supplemental Indenture
has been duly authorized in all respects.
NOW THEREFORE, in consideration of the purchase and acceptance of the
Notes by the holders thereof, and for the purpose of setting forth, as provided
in the Indenture, the form and substance of the Notes and the terms, provisions
and conditions thereof, the Company covenants and agrees with the Trustee as
follows:
ARTICLE
I
DEFINITIONS
Section 1.1. Definition of Terms. Unless the context otherwise
requires, (a) a term defined in the Indenture has the same meaning when used in
this Third Supplemental Indenture, (b) a term defined anywhere in this Third
Supplemental Indenture has the same meaning throughout and (c) the following
terms have the meanings given to them in the Declaration (including, without
limitation, Annex I thereto):
Capital Securities Guarantee
Capital Security Certificate
Clearing Agency
Delaware Trustee
Pro Rata
Property Trustee
Purchase Agreement
Regular Trustee
Special Event
In addition, the following terms have the following respective
meanings:
"Adjusted Treasury Rate" means, with respect to any redemption date,
the rate per annum equal to (i) the yield, under the heading which represents
the average for the immediately prior week, appearing in the most recently
published statistical release designated "H.15 (519)" or any successor
publication which is published weekly by the Board of Governors of the Federal
Reserve System and which establishes yields on actively traded United States
Treasury securities adjusted to constant maturity under the caption "Treasury
Constant Maturities," for the maturity corresponding to the Remaining Life (if
no maturity is within three months before or after the Remaining Life, yields
for the two published maturities most closely corresponding to the Remaining
Life shall be determined and the Adjusted Treasury Rate shall be interpolated or
extrapolated from such yields on a straight-line basis, rounding to the nearest
month) or (ii) if such release (or any successor release) is not published
during the week preceding the calculation date or does not contain such yields,
the rate per annum equal to the quarterly equivalent yield to maturity of the
Comparable Treasury Issue, calculated using a price for the Comparable Treasury
Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such redemption date, in each case calculated on
the third Business Day preceding the redemption date, plus in each case (a)
1.75% if such redemption date occurs on or prior to March 31, 1998, and (b)
1.00% in all other cases.
"Comparable Treasury Issue" means the United States Treasury security
selected by the Quotation Agent as having a maturity comparable to the Remaining
Life of the
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Subordinated Debt Securities to be redeemed that would be utilized, at the time
of selection and in accordance with customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity with the Remaining
Life of the Subordinated Debt Securities. If no United States Treasury security
has a maturity which is within a period from three months before to three months
after March 31, 2007, the two most closely corresponding United States Treasury
securities shall be used as the Comparable Treasury Issue, and the Adjusted
Treasury Rate shall be interpolated or extrapolated on a straight-line basis,
rounding to the nearest month using such securities.
"Comparable Treasury Price" means, with respect to any redemption
date, (i) the average of three Reference Treasury Dealer Quotations for such
redemption date, after excluding the highest and lowest of five Reference
Treasury Dealer Quotations or (ii) if the Trustee obtains fewer than five
Reference Treasury Dealer Quotations, the average of all such quotations.
"Declaration" means the Amended and Restated Declaration of Trust of
TCI Communications Financing III, a Delaware business trust, dated as of March
14, 1997.
"Dissolution Event" means that, as a result of the occurrence and
continuation of a Special Event, the Trust is to be dissolved in accordance with
the Declaration and the Notes held by the Property Trustee are to be distributed
to the holders of the Trust Securities Pro Rata in accordance with the
Declaration.
"Investment Company Event" means that the Regular Trustees shall have
received an opinion from independent counsel experienced in practice under the
1940 Act (as hereinafter defined) to the effect that, as a result of the
occurrence of a change in law or regulation or a written change in
interpretation or application of law or regulation by any legislative body,
court, governmental agency or regulatory authority (a "Change in 1940 Act Law"),
there is more than an insubstantial risk that the Trust is or will be considered
an "investment company" which is required to be registered under the Investment
Company Act of 1940, as amended (the "1940 Act"), which Change in 1940 Act Law
becomes effective on or after March 11, 1997.
"Maturity Date" means the date on which the Notes mature and on which
the principal shall be due and payable together with all accrued and unpaid
interest thereon including Additional Interest, if any.
"Quotation Agent" means the Reference Treasury Dealer appointed by the
Company for this purpose.
"Reference Treasury Dealer" means: (i) ▇▇▇▇▇▇ Brothers Inc. and its
respective successors; provided, however, that if the foregoing shall cease to
be a primary U.S. Government securities dealer in New York City (a "Primary
Treasury Dealer"), the Company shall substitute therefor another Primary
Treasury Dealer; and (ii) any other Primary Treasury Dealer selected by the
Company.
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"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as determined by
the Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m., New York
City time, on the third Business Day preceding such redemption date.
"Remaining Life" means the period from the redemption date of the
Subordinated Debt Securities (which are redeemed prior to March 31, 2007) to and
including March 31, 2007.
"Senior Indebtedness" means: (i) any payment in respect of (A)
indebtedness of the Company for money borrowed and (B) indebtedness evidenced by
securities, debentures, bonds, notes or other similar instruments issued by the
Company; (ii) all capital lease obligations of the Company; (iii) all
obligations of the Company issued or assumed as the deferred purchase price of
property, all conditional sale obligations of the Company and all obligations of
such obligor under any title retention agreement (but excluding trade accounts
payable arising in the ordinary course of business); (iv) all obligations of the
Company for reimbursement on any letter of credit, banker's acceptance, security
purchase facility or similar credit transaction; (v) all obligations of the type
referred to in clauses (i) through (iv) of other Persons for the payment of
which the Company is responsible or liable as obligor, guarantor or otherwise;
and (vi) all obligations of the type referred to in clauses (i) through (v) of
other Persons secured by any lien on any property or asset of the Company
(whether or not such obligation is assumed by the Company), except for any such
indebtedness that is by its terms subordinated to or pari passu with the Notes,
as the case may be. For greater certainty, "Senior Indebtedness" includes all
indebtedness for money borrowed between or among the Company and its Affiliates,
except for such indebtedness that is by its terms subordinated to or pari passu
with the Notes, as the case may be.
"Tax Event" means that the Regular Trustees shall have received an
opinion from independent tax counsel experienced in such matters to the effect
that, on or after March __, 1997, as a result of (a) any amendment to, or change
(including any announced prospective change) in, the laws (or any regulations
thereunder) of the United States or any political subdivision or taxing
authority thereof or therein, or (b) any amendment to, or change in, an
interpretation or application of such laws or regulations by any legislative
body, court, governmental agency or regulatory authority, in each case which
amendment or change is enacted, promulgated, issued or announced or which
interpretation is issued or announced or which action is taken, on or after
March __, 1997, there is more than an insubstantial risk that (i) the Trust is,
or will be within 90 days of the date thereof, subject to United States federal
income tax with respect to interest accrued or received on the Subordinated Debt
Securities, (ii) interest payable to the Trust on the Subordinated Debt
Securities is not, or will not be within 90 days of the date thereof, deductible
in whole or in part by the Company for United States federal income tax purposes
or (iii) the Trust is, or will be within 90 days of the date thereof, subject to
more than a de minimis amount of other taxes, duties or other governmental
charges.
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Section 1.2. Interpretation. Each definition in this Third
Supplemental Indenture includes the singular and the plural, and references to
the neuter gender include the masculine and feminine where appropriate. Terms
which relate to accounting matters shall be interpreted in accordance with
generally accepted accounting principles in effect from time to time.
References to any statute mean such statute as amended at the time and include
any successor legislation. The word "or" is not exclusive, and the words
"herein," "hereof" and "hereunder" refer to this Third Supplemental Indenture as
a whole. References to Articles and Sections are to the Articles and Sections
of this Third Supplemental Indenture. The headings to the Articles and Sections
are for convenience of reference and shall not affect the meaning or
interpretation of this Third Supplemental Indenture.
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE NOTES
Section 2.1. Designation and Principal Amount. There is hereby
authorized a series of Securities designated the "9.65% Subordinated Deferrable
Interest Notes due March 31, 2027." The aggregate principal amount of Notes
which may be authenticated and delivered under the Indenture is limited to
$309,279,000 (except for Notes authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Notes pursuant to Sections
2.08, 2.09, 2.11, 3.07 or 9.05 of the Indenture and except for any Notes which
pursuant to Section 2.04 of the Indenture are deemed not to have been
authenticated and delivered pursuant to the Indenture).
Section 2.2. Maturity. The Maturity Date will be March 31, 2027.
Section 2.3. Form and Payment. Except as provided in Section 2.4,
the Notes shall be issued in fully registered certificated form without interest
coupons. Principal of and premium, if any, and interest (including Additional
Interest, if any) on the Notes issued in certificated form will be payable, the
transfer of such Notes will be registrable and such Notes will be exchangeable
for Notes bearing identical terms and provisions at the office or agency of the
Trustee in New York, New York, provided, however, that payment of interest may
be made at the option of the Company by check mailed to the registered Holder at
such address as shall appear in the security register maintained by the
Registrar. Notwithstanding the foregoing, so long as the registered Holder of
any Notes is the Property Trustee, the payment of the principal of and premium,
if any, and interest (including Additional Interest, if any) on such Notes held
by the Property Trustee will be made at such place and to such account as may be
designated by the Property Trustee.
Section 2.4. Global Note. In connection with a Dissolution Event:
(a) Notes in certificated form may be presented to the Trustee by
the Property Trustee in exchange for a global Note in an aggregate
principal amount
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equal to the aggregate principal amount of the Notes so presented, to
be registered in the name of The Depository Trust Company ("DTC"), as
the initial Clearing Agency for the Notes, or the nominee of DTC, and
delivered by the Trustee to DTC for crediting to the accounts of its
participants pursuant to the instructions of the Regular Trustees; the
Company, upon any such presentation, shall execute a global Note in
such aggregate principal amount and deliver the same to the Trustee
for authentication and delivery in accordance with the Indenture and
this Third Supplemental Indenture; and payments on the Notes issued as
a global Note will be made in immediately available funds to DTC (or a
successor Clearing Agency); and
(b) If any Capital Securities are held in certificated form
(i.e., not in book entry form), Notes in certificated form may be
presented to the Trustee by the Property Trustee and any Capital
Security Certificate which represents Capital Securities (other than
Capital Securities held by DTC (or a successor Clearing Agency) or its
nominee) ("Non Book-Entry Capital Securities") will be deemed to
represent beneficial interests in Notes in certificated form presented
to the Trustee by the Property Trustee having an aggregate principal
amount equal to the aggregate liquidation amount of the Non Book-Entry
Capital Securities until such Capital Security Certificates are
presented to the Registrar for transfer or reissuance, at which time
such Capital Security Certificates will be canceled and a Note in
certificated form, registered in the name of the holder of such
Capital Security Certificate or the transferee of the holder of such
Capital Security Certificate, as the case may be, with an aggregate
principal amount equal to the aggregate liquidation amount of the
Capital Security Certificate canceled, will be executed by the Company
and delivered to the Trustee for authentication and delivery in
accordance with the Indenture and this Third Supplemental Indenture;
and upon issuance of such Notes, Notes in certificated form with an
equivalent aggregate principal amount that were presented by the
Property Trustee to the Trustee will be deemed to have been canceled.
Section 2.5. Interest. (a) Each Note will bear interest at the
rate of 9.65% per annum (the "Coupon Rate") from the original date of issuance
until the principal thereof becomes due and payable, and on any overdue
principal and (to the extent that payment of such interest is enforceable under
applicable law) on any overdue installment of interest at the Coupon Rate,
compounded quarterly, payable (subject to the provisions of Article IV)
quarterly in arrears on March 31, June 30, September 30 and December 31 of each
year (each, an "Interest Payment Date"), commencing on June 30, 1997, to the
Person in whose name such Note or any predecessor Note is registered, at the
close of business on the Regular Record Date for such interest installment,
which shall be the close of business on the Business Day next preceding that
Interest Payment Date. If pursuant to the provisions of Section 2.08 of the
Indenture the Notes are no longer represented by a global Security, the Company
may select a regular record date for such interest installment which shall be
any date at least fifteen days before an Interest Payment Date.
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(b) The amount of interest payable for any period will be computed on
the basis of a 360-day year of twelve 30-day months. In the event that any date
on which interest is payable on the Notes is not a Business Day, then payment of
interest payable on such date will be made on the next succeeding day which is a
Business Day (and without any interest or other payment in respect of any such
delay), except that, if such Business Day is in the next succeeding calendar
year, such payment shall be made on the immediately preceding Business Day, in
each case with the same force and effect as if made on such date. The amount of
interest payable for any period shorter than a full quarterly period for which
interest is computed will be computed on the basis of the actual number of days
elapsed in such a 90-day quarter.
(c) If at any time while the Property Trustee is the Holder of any
Notes, the Trust or the Property Trustee is required to pay any taxes, duties,
assessments or governmental charges of whatever nature (other than withholding
taxes) imposed by the United States, or any other taxing authority, then, in any
case, the Company will pay as additional interest ("Additional Interest") on the
Notes held by the Property Trustee such additional amounts as shall be required
so that the net amounts received and retained by the Trust and the Property
Trustee after paying such taxes, duties, assessments or other governmental
charges will be equal to the amounts the Trust and the Property Trustee would
have received had no such taxes, duties, assessments or other governmental
charges been imposed.
ARTICLE III
REDEMPTION OF THE NOTES
Section 3.1. Tax Event Redemption.
Prior to March 31, 2007, if a Tax Event has occurred then,
notwithstanding Section 3.2, the Company shall have the right, upon not less
than 30 nor more than 60 days notice to the registered Holders of the Notes, to
redeem the Notes, in whole but not in part, for cash within 90 days following
the occurrence of such Tax Event (the "90 Day Period") at the Tax Event
Redemption Price (as defined herein), provided that, if at the time there is
available to the Company the opportunity to eliminate, within the 90 Day Period,
the Tax Event by taking some ministerial action ("Ministerial Action"), such as
filing a form or making an election, or pursuing some other similar reasonable
measure that has no adverse effect on the Company, the Trust or the holders of
the Trust Securities, the Company shall pursue such Ministerial Action in lieu
of redemption; and provided further, that the Company shall have no right to
redeem the Notes while the Trust is pursuing any Ministerial Action pursuant to
its obligations under the Declaration. The "Tax Event Redemption Price" shall
mean the greater of (i) 100% of the principal amount of the Subordinated Debt
Securities or (ii) the sum, as determined by a Quotation Agent, of the present
values of the principal amount and premium payable with respect to an optional
redemption of the Subordinated Debt Securities on March 31, 2007 pursuant to
Section 3.2, together with scheduled payments of interest from the redemption
date
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to and including March 31, 2007, in each case discounted to the redemption
date on a quarterly basis (assuming a 360-day year consisting of 30-day months)
at the Adjusted Treasury Rate, plus accrued and unpaid interest on the
Subordinated Debt Securities to the date fixed for redemption. The Tax
Redemption Price shall be paid prior to 12:00 noon, New York City time, on the
date of such redemption or at such earlier time as the Company determines and
specifies in the notice of redemption, provided the Company shall deposit with
the Trustee an amount sufficient to pay the Tax Event Redemption Price by 11:00
a.m., New York City time, on the date such Tax Event Redemption Price is to be
paid.
In connection with a redemption described in this Section 3.1, the
Company shall take all actions necessary to calculate the Tax Event Redemption
Price, including without limitation, selecting and notifying the Quotation Agent
of such redemption and selecting Reference Treasury Dealers in order to provide
Reference Treasury Dealer Quotations to the Trustee.
Section 3.2. Optional Redemption by Company. Subject to the
provisions of Article Three of the Indenture, the Company shall have the right
to redeem the Notes, in whole or in part, from time to time, on or after March
31, 2007, at the following redemption prices (expressed in percentages of
principal amount), plus in each case accrued and unpaid interest thereon to the
date of such redemption (the "Optional Redemption Price"), if redeemed during
the 12-month period beginning March 31 of each year indicated below:
Optional
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Year Redemption Price
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2007 ................................ 104.8250%
2008 ................................ 104.3425
2009 ................................ 103.8600
2010 ................................ 103.3775
2011 ................................ 102.8950
2012 ................................ 102.4125
2013 ................................ 101.9300
2014 ................................ 101.4475
2015 ................................ 100.9650
2016 ................................ 100.4825
2017 and thereafter ................. 100.0000
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Any redemption pursuant to this Section 3.2 shall be made upon not less than 30
nor more than 60 days notice to the registered Holder of the Notes, at the
Optional Redemption Price. If the Notes are only partially redeemed pursuant to
this Section 3.2, the Notes will be redeemed pro rata or by lot or by any other
method utilized by the Trustee. The Optional Redemption Price shall be paid
prior to 12:00 noon, New York City time, on the date of such redemption or at
such earlier time as the Company determines and specifies in the notice of
redemption, provided the Company shall deposit with the Trustee an amount
sufficient to pay the Optional Redemption Price by 11:00 a.m., New York City
time, on the date such Optional Redemption Price is to be paid.
Section 3.3. No Sinking Fund. The Notes are not entitled to the
benefit of any sinking fund.
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
Section 4.1. Extension of Interest Payment Period. The Company
shall have the right, at any time and from time to time prior to the Maturity
Date, to extend the interest payment period of such Notes for up to twenty (20)
consecutive quarters (the "Extended Interest Payment Period"). To the extent
permitted by applicable law, interest, the payment of which has been deferred
because of the extension of the interest payment period pursuant to this Section
4.1, will bear interest compounded quarterly at the Coupon Rate for each quarter
of the Extended Interest Payment Period ("Compounded Interest"). At the end of
the Extended Interest Payment Period, the Company shall pay all interest accrued
and unpaid on the Notes, including any Additional Interest ("Deferred
Interest"), which shall be payable to the Holders of the Notes in whose names
the Notes are registered in the security register maintained by the Registrar on
the first Regular Record Date after the end of the Extended Interest Payment
Period. Before the termination of any Extended Interest Payment Period, the
Company may further extend such period, provided that such period together with
all such further extensions thereof shall not exceed twenty (20) consecutive
quarters or extend beyond the Maturity Date. Upon the termination of any
Extended Interest Payment Period and upon the payment of all Deferred Interest
then due, the Company may select a new Extended Interest Payment Period, subject
to the foregoing requirements. No interest shall be due and payable during an
Extended Interest Payment Period, except at the end thereof.
Section 4.2. Notice of Extension. (a) If the Property Trustee is
the only registered Holder of the Notes at the time the Company selects an
Extended Interest Payment Period, the Company shall give written notice to both
the Regular Trustees and the Property Trustee of its selection of such Extended
Interest Payment Period one Business Day before the earlier of (i) the next
succeeding date on which Distributions on the Trust Securities are payable, or
(ii) the date the Trust is required to give notice of the record or payment date
for such
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Distributions to the New York Stock Exchange or other applicable self-regulatory
organization or to holders of the Capital Securities, but in any event at least
one Business Day before such record date.
(b) If the Property Trustee is not the only Holder of the Notes at the
time the Company selects an Extended Interest Payment Period, the Company shall
give the Holders of the Notes and the Trustee written notice of its selection of
such Extended Interest Payment Period ten (10) Business Days before the earlier
of (i) the next succeeding Interest Payment Date, or (ii) the date the Company
is required to give notice of the record or payment date of such interest
payment to the New York Stock Exchange or other applicable self-regulatory
organization or to Holders of the Notes.
(c) The quarter in which any notice is given pursuant to paragraphs
(a) or (b) of this Section 4.2 shall be counted as one of the twenty quarters
permitted in the maximum Extended Interest Payment Period permitted under
Section 4.1.
ARTICLE V
EXPENSES
Section 5.1. Payment of Expenses. In connection with the offering,
sale and issuance of the Notes to the Property Trustee in connection with the
sale of the Trust Securities by the Trust, and in connection with the
maintenance of the Trust for so long as the Trust Securities are outstanding,
the Company shall:
(a) pay all costs and expenses relating to the offering, sale and
issuance of the Notes, including compensation to the underwriters payable
pursuant to the Purchase Agreement and compensation of the Trustee under the
Indenture in accordance with the provisions of Section 7.07 of the Indenture;
(b) pay all costs and expenses of the Trust (including, but not
limited to, costs and expenses relating to the organization of the Trust, the
offering, sale and issuance of the Trust Securities (including commissions to
the underwriters payable pursuant to the Purchase Agreement), the fees and
expenses of the Property Trustee and the Delaware Trustee, the costs and
expenses relating to the operation of the Trust, including without limitation,
costs and expenses of accountants, attorneys, statistical or bookkeeping
services, expenses for printing and engraving and computing or accounting
equipment, paying agent(s), registrar(s), transfer agent(s), any Clearing Agency
for the Capital Securities, duplicating, travel and telephone and other
telecommunications expenses and costs and expenses incurred in connection with
the acquisition, financing, and disposition of Trust assets), other than
obligations of the trust in respect of the Trust Securities;
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(c) be primarily liable for any indemnification obligations arising
with respect to the Declaration;
(d) pay any and all taxes, duties, assessments or governmental charges
of whatever nature (other than United States withholding taxes attributable to
the Trust or its assets) imposed on the Trust or its assets and all liabilities,
costs and expenses of the Trust with respect to such taxes, duties, assessments
or governmental charges; and
(e) pay any and all fees and expenses related to the enforcement by
the Property Trustee of the rights of the holders of the Capital Securities.
ARTICLE VI
SUBORDINATION
Section 6.1. Agreement to Subordinate. The Company covenants and
agrees, and each holder of Notes issued hereunder by such holder's acceptance
thereof likewise covenants and agrees, that all Notes shall be issued subject to
the provisions of this Article VI; and each holder of a Note, whether upon
original issue or upon transfer or assignment thereof, accepts and agrees to be
bound by such provisions.
The payment by the Company of the principal of, premium, if any, and
interest on all Notes issued hereunder shall, to the extent and in the manner
hereinafter set forth, be subordinated and subject in right of payment to the
prior payment in full of all Senior Indebtedness, whether outstanding at the
date of this Third Supplemental Indenture or thereafter incurred.
This Article shall constitute a continuing offer to all Persons who,
in reliance upon such provisions, become holders of, or continue to hold, Senior
Indebtedness, and such provisions are made for the benefit of the holders of
Senior Indebtedness and such holders are made obligees hereunder and they and/or
each of them may enforce such provisions.
No provision of this Article VI shall prevent the occurrence of any
default or Event of Default with respect to the Notes.
Section 6.2. Default on Senior Indebtedness. In the event and
during the continuation of any default by the Company in the payment of
principal, premium, interest or any other amount due on any Senior Indebtedness,
or in the event that the maturity of any Senior Indebtedness has been
accelerated because of a default, then, in either case, no payment shall be made
by the Company to the Holders of the Notes with respect to the principal
(including redemption and sinking fund payments) of, premium, if any, interest
on, or any other amount owing in respect of, the Notes.
11
In the event that, notwithstanding the foregoing, any payment shall be
received by the Trustee or any Holder of the Notes when such payment is
prohibited by the preceding paragraph of this Section 6.2, such payment shall be
held in trust for the benefit of, and shall be paid over or delivered to, the
holders of Senior Indebtedness or their respective representatives, or to the
trustee or trustees under any indenture pursuant to which any of such Senior
Indebtedness may have been issued, as their respective interests may appear, but
only to the extent that the holders of the Senior Indebtedness (or their
representative or representatives or a trustee) notify the Trustee within 90
days of such payment of the amounts then due and owing on the Senior
Indebtedness and only the amounts specified in such notice to the Trustee shall
be paid to the holders of Senior Indebtedness.
Section 6.3. Liquidation; Dissolution; Bankruptcy. Upon any payment
by the Company, or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, to creditors upon any
dissolution or winding-up or liquidation or reorganization of the Company,
whether voluntary or involuntary or in bankruptcy, insolvency, receivership or
other proceedings, all amounts due upon all Senior Indebtedness shall first be
paid in full, or payment thereof provided for in money in accordance with its
terms, before any payment or distribution is made by the Company to the Holders
of the Notes on account of the principal of, premium, if any, interest on, or
any other amount owing in respect of, the Notes; and upon any such dissolution
or winding-up or liquidation or reorganization, any payment by the Company, or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities, to which the Holders of the Notes or the Trustee would
be entitled to receive from the Company, except for the provisions of this
Article VI, shall be paid by the Company or by any receiver, trustee in
bankruptcy, liquidating trustee, agent or other Person making such payment or
distribution, or by the Holders of the Notes or by the Trustee under this
Indenture if received by them or it, directly to the holders of Senior
Indebtedness (pro rata to such holders on the basis of the respective amounts of
Senior Indebtedness held by such holders, as calculated by the Company) or their
representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing such Senior Indebtedness
may have been issued, as their respective interests may appear, to the extent
necessary to pay such Senior Indebtedness in full, in money or money's worth,
after giving effect to any concurrent payment or distribution to or for the
holders of such Senior Indebtedness, before any payment or distribution is made
to the Holders of Notes or to the Trustee.
In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities, prohibited by the foregoing, shall be received by the
Trustee or the Holders of the Notes before all Senior Indebtedness is paid in
full, or provision is made for such payment in money in accordance with its
terms, such payment or distribution shall be held in trust for the benefit of
and shall be paid over or delivered to the holders of such Senior Indebtedness
or their representative or representatives, or to the trustee or trustees under
any indenture pursuant to which any instruments evidencing such Senior
Indebtedness may have been issued, as their respective interests may appear, as
calculated by the Company, for application to the payment of
12
all Senior Indebtedness remaining unpaid to the extent necessary to pay such
Senior Indebtedness in full in money in accordance with its terms, after giving
effect to any concurrent payment or distribution to or for the benefit of the
holders of such Senior Indebtedness.
For purposes of this Article VI, the words "cash, property or
securities" shall not be deemed to include shares of stock of the Company as
reorganized or readjusted, or securities of the Company or any other corporation
provided for by a plan of reorganization or readjustment, the payment of which
is subordinated at least to the extent provided in this Article VI with respect
to the Notes to the payment of all Senior Indebtedness that may at the time be
outstanding, provided that (i) such Senior Indebtedness is assumed by the new
corporation, if any, resulting from any such reorganization or readjustment, and
(ii) the rights of the holders of such Senior Indebtedness are not, without the
consent of such holders, altered by such reorganization or readjustment. The
consolidation of the Company with, or the merger of the Company into, another
corporation or the liquidation or dissolution of the Company following the
conveyance or transfer of its property as an entirety, or substantially as an
entirety, to another corporation upon the terms and conditions provided for in
Article Five of the Indenture shall not be deemed a dissolution, winding-up,
liquidation or reorganization for the purposes of this Section 6.3 if such other
corporation shall, as a part of such consolidation, merger, conveyance or
transfer, comply with the conditions stated in Article Five of the Indenture.
Nothing in Section 6.2 or in this Section 6.3 shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 7.07 of the Indenture.
Section 6.4. Subrogation. Subject to the payment in full of all
Senior Indebtedness, the rights of the Holders of the Notes shall be subrogated
to the rights of the holders of such Senior Indebtedness to receive payments or
distributions of cash, property or securities of the Company applicable to such
Senior Indebtedness until the principal of, premium, if any, and interest on,
and all other amounts owing in respect of, the Notes shall be paid in full; and,
for the purposes of such subrogation, no payments or distributions to the
holders of such Senior Indebtedness of any cash, property or securities to which
the Holders of the Notes or the Trustee would be entitled except for the
provisions of this Article VI, and no payment over pursuant to the provisions of
this Article VI, to or for the benefit of the holders of such Senior
Indebtedness by Holders of the Notes or the Trustee, shall, as between the
Company, its creditors other than holders of Senior Indebtedness, and the
Holders of the Notes be deemed to be a payment by the Company to or on account
of such Senior Indebtedness. It is understood that the provisions of this
Article VI are and are intended solely for the purposes of defining the relative
rights of the Holders of the Notes, on the one hand, and the holders of Senior
Indebtedness on the other hand.
Nothing contained in this Article VI or elsewhere in this Third
Supplemental Indenture or the Indenture or in the Notes is intended to or shall
impair, as between the Company, its creditors other than the holders of Senior
Indebtedness, and the Holders of the Notes, the obligation of the Company, which
is absolute and unconditional, to pay to the Holders of the Notes the principal
of (and premium, if any) and interest on and all other amounts owing
13
in respect of the Notes as and when the same shall become due and payable in
accordance with their terms, or is intended to or shall affect the relative
rights of the Holders of the Notes and creditors of the Company, other than the
holders of Senior Indebtedness, nor shall anything herein or therein prevent the
Trustee or the Holder of any Note from exercising all remedies otherwise
permitted by applicable law upon default under the Indenture, as amended and
supplemented by this Third Supplemental Indenture, subject to the rights, if
any, under this Article VI of the holders of such Senior Indebtedness in respect
of cash, property or securities of the Company received upon the exercise of any
such remedy.
Upon any payment or distribution of assets of the Company referred to
in this Article VI, the Trustee, subject to the provisions of Section 7.01 of
the Indenture, and the Holders of the Notes, shall be entitled to rely upon any
order or decree made by any court of competent jurisdiction in which such
dissolution, winding-up, liquidation or reorganization proceedings are pending,
or a certificate of the receiver, trustee in bankruptcy, liquidation trustee,
agent or other Person making such payment or distribution, delivered to the
Trustee or to the Holders of the Notes, for the purposes of ascertaining the
Persons entitled to participate in such distribution, the holders of Senior
Indebtedness and other indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article VI.
Section 6.5. Trustee to Effectuate Subordination. Each Holder of a
Note by such holder's acceptance thereof authorizes and directs the Trustee on
such holder's behalf to take such action as may be necessary or appropriate to
effectuate the subordination provided in this Article VI and appoints the
Trustee as such holder's attorney-in-fact for any and all such purposes.
Section 6.6. Notice by the Company. The Company shall give prompt
written notice to a Trust Officer of any fact known to the Company that would
prohibit the making of any payment of monies to or by the Trustee in respect of
the Notes pursuant to the provisions of this Article VI. Notwithstanding the
provisions of this Article VI or any other provision of the Indenture and this
Third Supplemental Indenture, the Trustee shall not be charged with knowledge of
the existence of any facts that would prohibit the making of any payment of
monies to or by the Trustee in respect of the Notes pursuant to the provisions
of this Article VI unless and until a Trust Officer shall have received written
notice thereof from the Company or a holder or holders of Senior Indebtedness or
from any representative or trustee therefor; and before the receipt of any such
written notice, the Trustee, subject to the provisions of Section 7.01 of the
Indenture, shall be entitled in all respects to assume that no such facts exist;
provided, however, that if the Trustee shall not have received the notice
provided for in this Section 6.6 at least two Business Days prior to the date
upon which by the terms hereof any money may become payable for any purpose
(including, without limitation, the payment of the principal of (or premium, if
any) or interest on any Note) then, anything herein contained to the contrary
notwithstanding, the Trustee shall have full power and authority to receive such
money and to
14
apply the same to the purposes for which they were received, and shall not be
affected by any notice to the contrary that may be received by it within two
Business Days prior to such date.
The Trustee, subject to the provisions of Section 7.01 of the
Indenture, shall be entitled to rely on the delivery to it of a written notice
by a Person representing himself to be a holder of Senior Indebtedness (or a
representative or trustee on behalf of such holder) to establish that such
notice has been given by a holder of such Senior Indebtedness or a
representative or trustee on behalf of any such holder or holders. In the event
that the Trustee determines in good faith that further evidence is required with
respect to the right of any Person as a holder of such Senior Indebtedness to
participate in any payment or distribution pursuant to this Article VI, the
Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of such Senior Indebtedness held by
such Person, the extent to which such Person is entitled to participate in such
payment or distribution and any other facts pertinent to the rights of such
Person under this Article VI, and if such evidence is not furnished, the Trustee
may defer any payment to such Person pending judicial determination as to the
right of such Person to receive such payment.
Section 6.7. Rights of the Trustee; Holders of Senior Indebtedness.
The Trustee in its individual capacity shall be entitled to all the rights set
forth in this Article VI in respect of any Senior Indebtedness at any time held
by it, to the same extent as any other holder of Senior Indebtedness, and
nothing in this Indenture shall deprive the Trustee of any of its rights as such
holder.
With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants and obligations
as are specifically set forth in this Article VI, and no implied covenants or
obligations with respect to the holders of such Senior Indebtedness shall be
read into the Indenture or this Third Supplemental Indenture against the
Trustee. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness and, subject to the provisions of Section 7.01 of
the Indenture, the Trustee shall not be liable to any holder of Senior
Indebtedness if it shall pay over or deliver to Holders of Notes, the Company or
any other Person money or assets to which any holder of Senior Indebtedness
shall be entitled by virtue of this Article VI or otherwise.
Section 6.8. Subordination May Not Be Impaired. No right of any
present or future holder of any Senior Indebtedness to enforce subordination as
herein provided shall at any time in any way be prejudiced or impaired by any
act or failure to act on the part of the Company or by any act or failure to
act, in good faith, by any such holder, or by any noncompliance by the Company
with the terms, provisions and covenants of the Indenture or this Third
Supplemental Indenture, regardless of any knowledge thereof that any such holder
may have or otherwise be charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Indebtedness may, at any time and from time to time,
without the consent of or notice
15
to the Trustee or the Holders of the Notes, without incurring responsibility to
the Holders of the Notes and without impairing or releasing the subordination
provided in this Article VI or the obligations hereunder of the Holders of the
Notes to the holders of such Senior Indebtedness, do any one or more the
following: (i) change the manner, place or terms of payment or extend the time
of payment of, or renew or alter, such Senior Indebtedness, or otherwise amend
or supplement in any manner such Senior Indebtedness or any instrument
evidencing the same or any agreement under which such Senior Indebtedness is
outstanding; (ii) sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing such senior Indebtedness; (iii) release
any Person liable in any manner for the collection of such Senior Indebtedness;
and (iv) exercise or refrain from exercising any rights against the Company and
any other Person.
Section 6.9. Pari Passu Debt. The payment by the Company of the
principal of, premium, if any, and interest on all Notes issued hereunder shall
rank pari passu with the payment by the Company of the principal of, premium, if
any, and interest on the Company's (i) 8.72% Subordinated Deferrable Interest
Notes due January 31, 2045 and (ii) 10% Subordinated Deferrable Interest Notes
due May 31, 2045 (each of which are a series of Securities issued under the
Indenture).
ARTICLE VII
[RESERVED]
ARTICLE VII
FORM OF NOTE
Section 8.1. Form of Note. The Notes and the Trustee's Certificate
of Authentication to be endorsed thereon are to be substantially in the
following forms:
(FORM OF FACE OF NOTE)
[IF THE NOTE IS TO BE A GLOBAL SECURITY, INSERT: This Note is a
global Note within the meaning of the Indenture hereinafter referred to and is
registered in the name of a depositary or a nominee of a depositary. Unless and
until it is exchanged in whole or in part for Notes in definitive form, this
Note may not be transferred except as a whole by the depositary to a nominee of
the depositary or another nominee of the depositary or by the depositary or any
such nominee to a successor depositary or a nominee of such successor
depositary.
Unless this Note is presented by an authorized representative of The
Depository Trust Company (55 ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇) to the issuer or
its agent for registration of transfer, exchange or payment, and any Note issued
is registered in the name of Cede & Co. or such other name as requested by an
authorized representative of The Depository Trust Company and any payment hereon
is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY A PERSON IS WRONGFUL since the registered owner hereof, Cede Co.,
has an interest herein.]
16
No. $
CUSIP No.
TCI COMMUNICATIONS, INC.
9.65% SUBORDINATED DEFERRABLE INTEREST NOTE
DUE MARCH 31, 2027
TCI COMMUNICATIONS, INC., a Delaware corporation (the "Company", which
term includes any successor corporation under the Indenture hereinafter referred
to), for value received, hereby promises to pay to ________________ or
registered assigns, the principal sum of ________________ Dollars on March 31,
2027, and to pay interest on said principal sum from March 14, 1997, or from
the most recent interest payment date (each such date, an "Interest Payment
Date") to which interest has been paid or duly provided for, quarterly (subject
to deferral as set forth herein) in arrears on March 31, June 30, September 30
and December 31 of each year, commencing June 30, 1997, at the rate of 9.65% per
annum until the principal hereof shall have become due and payable, and on any
overdue principal and premium, if any, and (without duplication and to the
extent that payment of such interest is enforceable under applicable law) on any
overdue installment of interest, compounded quarterly, at the same rate per
annum. The amount of interest payable on any Interest Payment Date shall be
computed on the basis of a 360-day year of twelve 30-day months. In the event
that any date on which interest is payable on this Note is not a Business Day,
then payment of interest payable on such date will be made on the next
succeeding day which is a Business Day (and without any interest or other
payment in respect of any such delay), except that, if such Business Day is in
the next succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on such date. The amount of interest payable for any period shorter than a full
quarterly period for which interest is computed will be computed on the basis of
the actual number of days elapsed in such 90 day quarter. The interest
installment so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in the Indenture, be paid to the Person
in whose name this Note (or one or more Predecessor Securities, as defined in
said Indenture) is registered at the close of business on the regular record
date for such interest installment [which shall be the close of business on the
Business Day next preceding such Interest Payment Date.] [IF PURSUANT TO THE
PROVISIONS OF SECTION 2.08 OF THE INDENTURE THE NOTES ARE NO LONGER REPRESENTED
BY A GLOBAL SECURITY -- which shall be [insert date (to be selected by the
Company) which is not less than 15 days prior to each Interest Payment Date.]]
Any such interest installment not punctually paid or duly provided for shall
forthwith cease to be payable to the registered Holders on such regular record
date, and may be paid to the Person in whose name this Note (or one or more
Predecessor Securities) is registered at the close of business on a special
record date to be fixed by the Company for the payment of such defaulted
interest, notice whereof shall be given to the registered Holders of the Notes
not less than fifteen (15) days prior to such special record date, or may be
paid at any time in any other lawful manner not
17
inconsistent with the requirements of any securities exchange on which the Notes
may be listed, and upon such notice as may be required by such exchange, all as
more fully provided in the Indenture. The principal of (and premium, if any) and
the interest on this Note shall be payable at the office or agency of the
Trustee maintained for that purpose in New York, New York, in any coin or
currency of the United States of America which at the time of payment is legal
tender for payment of public and private debts; provided, however, that payment
of interest may be made at the option of the Company by check mailed to the
registered Holder at such address as shall appear in the security register
maintained by the Registrar. Notwithstanding the foregoing, so long as the
Holder of this Note is the Property Trustee, the payment of the principal of
(and premium, if any) and interest on this Note will be made at such place and
to such account as may by designated by the Property Trustee.
The indebtedness evidenced by this Note is, to the extent provided in
the Indenture, subordinate and junior in right of payment to the prior payment
in full of all Senior Indebtedness, and this Note is issued subject to the
provisions of the Indenture with respect thereto. Each Holder of this Note, by
accepting the same, (a) agrees to and shall be bound by such provisions, (b)
authorizes and directs the Trustee on his behalf to take such action as may be
necessary or appropriate to acknowledge or effectuate the subordination so
provided and (c) appoints the Trustee his attorney-in-fact for any and all such
purposes. Each Holder hereof, by his acceptance hereof, hereby waives all
notice of the acceptance of the subordination provisions contained herein and in
the Indenture by each holder of Senior Indebtedness, whether now outstanding or
hereafter incurred, and waives reliance by each such holder upon said
provisions.
This Note shall not be entitled to any benefit under the Indenture
hereinafter referred to, be valid or become obligatory for any purpose until the
Certificate of Authentication hereon shall have been signed by or on behalf of
the Trustee.
The provisions of this Note are continued on the reverse side hereof
and such continued provisions shall for all purposes have the same effect as
though fully set forth at this place.
IN WITNESS WHEREOF, the Company has caused this instrument to be
executed.
TCI COMMUNICATIONS, INC.
By
-------------------------
[Title]
Attest:
By
-------------------------
Name:
Title:
18
(FORM OF CERTIFICATE OF AUTHENTICATION)
Date:
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein referred
to in the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
By
-------------------------
Authorized Signatory
(FORM OF REVERSE OF NOTE)
This Note is one of a duly authorized series of Securities of the
Company designated its "9.65% Subordinated Deferrable Interest Notes due March
31, 2027" (herein sometimes referred to as the "Notes"), issued under and
pursuant to an Indenture dated as of January 29, 1996, duly executed and
delivered between the Company and The Bank of New York, not in its individual
capacity but solely as trustee (the "Trustee"), as supplemented by a Third
Supplemental Indenture dated as of March 14, 1997, between the Company and the
Trustee (such Indenture as so supplemented, the "Indenture"), to which Indenture
and all indentures supplemental thereto reference is hereby made for a
description of the rights, limitations of rights, obligations, duties and
immunities thereunder of the Trustee, the Company and the Holders of the Notes.
The terms of the Notes include those stated in the Indenture and those made part
of the Indenture by reference to the Trust Indenture Act of 1939, as in effect
on the date of the Indenture (the "TIA"). This Note is subject to all such
terms and the Holder of this Note is referred to the Indenture and the TIA for a
statement of those terms.
The Notes are general unsecured obligations of the Company and are
limited (except as otherwise provided in the Indenture) to $309,279,000 in
aggregate principal amount.
Prior to March 31, 2007, upon the occurrence of a Tax Event, this Note
may be redeemed, in whole but not in part, by the Company at the Tax Redemption
Price which shall be the greater of (i) 100% of the principal amount of the
Subordinated Debt Securities or (ii) the sum, as determined by a Quotation
Agent, of the present values of the principal amount and premium payable with
respect to an optional redemption of the Subordinated Debt Securities on
19
March 31, 2007, together with scheduled payments of interest from the redemption
date to and including March 31, 2007, in each case discounted to the redemption
date on a quarterly basis (assuming a 360-day year consisting of 30-day months)
at the Adjusted Treasury Rate, plus accrued and unpaid interest on the
Subordinated Debt Securities to the date fixed for redemption. The Tax
Redemption Price shall be paid prior to 12:00 noon, New York City time, on the
date of such redemption or at such earlier time as the Company determines. The
Company shall also have the right to redeem this Note at the option of the
Company, without penalty, in whole or in part at any time on or after March 31,
2007 (an "Optional Redemption"), at the following redemption prices (expressed
in percentages of principal amount), plus in each case accrued and unpaid
interest thereon to the date of such redemption (the "Optional Redemption
Price"), if redeemed during the 12-month period beginning March 31 of the years
indicated below:
Optional
--------
Year Redemption Price
---- ----------------
2007 ................................ 104.8250%
2008 ................................ 104.3425
2009 ................................ 103.8600
2010 ................................ 103.3775
2011 ................................ 102.8950
2012 ................................ 102.4125
2013 ................................ 101.9300
2014 ................................ 101.4475
2015 ................................ 100.9650
2016 ................................ 100.4825
2017 and thereafter ................. 100.0000
Any Optional Redemption pursuant to this paragraph shall be made upon not less
than 30 nor more than 60 days notice to the registered holders of this Note. If
the Notes are only partially redeemed by the Company pursuant to an Optional
Redemption, the Notes will be redeemed pro rata or by lot or by any other method
utilized by the Trustee. If the Notes are only partially redeemed by the Company
pursuant to an Optional Redemption, the Notes will be redeemed pro rata or by
lot or by any other method utilized by the Trustee; provided that if at the time
of redemption the Notes are registered as a global Note, the depositary shall
determine by lot the interest of each of its participants in such global Note
to be redeemed.
In the event of redemption of this Note in part only, a new Note or
Notes of this series for the unredeemed portion hereof will be issued in the
name of the Holder hereof upon the cancellation hereof.
In case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal of all of the Notes may be declared,
and upon such declaration shall
20
become, due and payable, in the manner, with the effect and subject to the
conditions provided in the Indenture.
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the Holders of a majority in aggregate principal
amount of the Securities of each series affected at the time outstanding, as
defined in the Indenture, to amend or supplement the Indenture or the Securities
of any series (including the Notes) for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions of the Indenture
or of modifying in any manner the rights of the Holders of the Securities
(including the Notes); provided, however, that no such amendment or supplement
shall (i) extend the fixed maturity of any Securities of any series, or reduce
the principal amount thereof, or reduce the rate or extend the time for payment
of interest thereon, without the consent of the Holder of each Security of such
series so affected or (ii) reduce the aforesaid percentage in aggregate
principal amount of Securities, the Holders of which are required to consent to
any such amendment or supplement, without the consent of the Holders of each
Security then outstanding and affected thereby. The Indenture also contains
provisions permitting the Holders of a majority in aggregate principal amount of
the Securities of any series at the time outstanding affected thereby, on behalf
of all of the Holders of the Securities of such series, to waive any past
default in the performance of any of the covenants contained in the Indenture,
or established pursuant to the Indenture with respect to such series, and its
consequences, except a default in the payment of the principal of or interest,
if any, on any of the Securities of such series. Any such consent or waiver by
the registered Holder of this Note (unless revoked as provided in the Indenture)
shall be conclusive and binding upon such Holder and upon all future Holders and
owners of this Note and of any Note issued in exchange herefor or in place
hereof (whether by registration of transfer or otherwise), irrespective of
whether or not any notation of such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and premium, if any, and
interest on this Note at the time and place and at the rate and in the money
herein prescribed.
The Company shall have the right at any time during the term of the
Notes, and from time to time, to extend the interest payment period of the Notes
for up to twenty (20) consecutive quarters (an "Extended Interest Payment
Period"), at the end of which period the Company shall pay all interest then
accrued and unpaid (together with interest thereon at the rate specified for the
Notes to the extent that payment of such interest is enforceable under
applicable law). Before the termination of any such Extended Interest Payment
Period, the Company may further extend such Extended Interest Payment Period,
provided that such Extended Interest Payment Period together with all such
further extensions thereof shall not exceed twenty (20) consecutive quarters or
extend beyond the maturity of the Notes. At the termination of any such
Extended Interest Payment Period and upon the payment of all accrued and unpaid
interest and
21
any additional amounts then due, the Company may select a new Extended Interest
Payment Period, subject to the foregoing requirements.
As provided in the Indenture and subject to certain limitations
therein set forth, this Note is transferable by the registered Holder hereof on
the security register of the Company maintained by the Registrar, upon surrender
of this Note for registration of transfer at the office or agency of the Trustee
in New York, New York accompanied by a written instrument or instruments of
transfer in form satisfactory to the Company or the Trustee duly executed by the
registered Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Notes of authorized denominations and for the same
aggregate principal amount will be issued to the designated transferee or
transferees. No service charge will be made for any such transfer, but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge payable in relation thereto.
Prior to due presentment for registration of transfer of this Note,
the Company, the Trustee, any Paying Agent and the Registrar may deem and treat
the registered Holder hereof as the absolute owner hereof (whether or not this
Note shall be overdue and notwithstanding any notice of ownership or writing
hereon made by anyone other than the Registrar) for the purpose of receiving
payment of principal of and interest due hereon and for all other purposes, and
neither the Company nor the Trustee nor any Paying Agent nor the Registrar shall
be affected by any notice to the contrary.
No past, present or future director, officer, employee or stockholder,
as such, of the Company or the Trustee or any successor of either thereof shall
have any liability for any obligations of the Company or the Trustee under the
Notes or this Indenture or for any claim based on, in respect of, or by reason
of, such obligations or their creation, all such liability being, by the
acceptance hereof and as part of the consideration for the issuance hereof,
expressly waived and released.
[The Notes of this series are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof.] [This
global Note is exchangeable for Notes in definitive form only under certain
limited circumstances set forth in the Indenture. Notes so issued are issuable
only in registered form without coupons in denominations of $1,000 and any
integral multiple thereof.] As provided in the Indenture and subject to certain
limitations therein set forth, Notes so issued are exchangeable for a like
aggregate principal amount of Notes of a different authorized denomination, as
requested by the Holder surrendering the same.
This Note shall be governed by the internal laws of the State of New
York, and for all purposes shall be construed in accordance with the laws of
said State.
All terms used in this Note which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
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ARTICLE IX
ORIGINAL ISSUE OF NOTES
Section 9.1. Original Issue of Notes. Notes in the aggregate
principal amount of $309,279,000 may, upon execution of this Third Supplemental
Indenture, be executed by the Company and delivered to the Trustee for
authentication, and the Trustee shall thereupon authenticate and deliver said
Notes to or upon the written order of the Company, signed by its Chairman, its
President, or any Vice President and its Treasurer, an Assistant Treasurer, or
Secretary without any further action by the Company.
ARTICLE X
CERTAIN COVENANTS
The following covenants shall apply to the Notes (but not with respect
to any other series of Securities), and are in addition to the covenants set
forth in Article Four of the Indenture.
Section 10.1. Limitation on Dividends and Other Payments. If (i)
there shall have occurred any event that constitutes an Event of Default or (ii)
the Company shall be in default with respect to its payment of any obligations
under the Capital Securities Guarantee, then (a) the Company shall not declare
or pay any dividend on, make any distributions with respect to, or redeem,
purchase or make a liquidation payment with respect to, any of its capital
stock, (b) the Company shall not make any payment of interest, principal or
premium, if any, on or repay, repurchase or redeem any debt securities issued by
the Company which rank pari passu with or junior to the Notes, and (c) the
Company shall not make any guarantee payments with respect to the foregoing
(other than pursuant to the Capital Securities Guarantee).
If the Company shall have given notice of its election to defer
payments of interest on the Notes by extending the interest payment period as
provided in Article IV and such period, or any extension thereof, shall be
continuing, then (i) the Company shall not declare or pay any dividend or, make
any distributions with respect to, or redeem, purchase or make a liquidation
payment with respect to, any of its capital stock, (ii) the Company shall not
make any payment of interest, principal, premium, if any, on or repay,
repurchase or redeem any debt securities issued by the Company which rank pari
passu with or junior to the Notes, and (iii) the Company shall not make any
guarantee payments with respect to the foregoing (other than pursuant to the
Capital Securities Guarantee).
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Notwithstanding the foregoing restrictions, nothing in this Section
10.1 shall prevent the Company, in any event, from making dividend, redemption,
liquidation or guarantee payments on capital stock, or interest, principal,
redemption or guarantee payments on debt securities issued by the Company
ranking pari passu with or junior to the Notes, where the payment is made by way
of (i) securities (including capital stock) that rank junior to the securities
on which such payment is being made or (ii) securities (including capital stock)
of Tele-Communications, Inc., a Delaware corporation (or any successor of such
corporation).
Section 10.2. Covenants as to the Trust. For so long as the Trust
Securities remain outstanding, the Company will (i) maintain 100% direct or
indirect ownership of the Common Securities; provided, however, that any
permitted successor of the Company under the Indenture may succeed to the
Company's ownership of the Common Securities, (ii) not cause, as sponsor of
the Trust, or permit, as the holder of the Common Securities of the Trust,
the termination, dissolution or winding-up of the Trust, except in connection
with a distribution of the Notes as provided in the Declaration and in
connection with certain mergers, consolidations or amalgamations as permitted by
the Declaration, (iii) use its reasonable efforts to cause the Trust (a) to
remain a statutory business trust, except in connection with a distribution of
Notes to the holders of the Capital Securities in liquidation of the Trust, or
certain mergers, consolidations or amalgamations, each as permitted by the
Declaration, and (b) to otherwise continue to be treated as a grantor trust for
United States federal income tax purposes and (iv) use its reasonable efforts to
cause each holder of Trust Securities to be treated as owning an individual
beneficial interest in the Notes.
ARTICLE XI
CERTAIN EVENTS OF DEFAULT
Section 11.1. Additional Events of Default. An Event of Default with
respect to the Notes shall include those events described in Section 6.01 of the
Indenture and, with respect to the Notes only, the occurrence of any of the
following events: the voluntary or involuntary dissolution, winding up or
termination of the Trust, except in connection with (i) the distribution of
Notes to holders of Capital Securities in liquidation or redemption of their
interests in the Trust, (ii) the redemption of all of the outstanding Capital
Securities, or (iii) certain mergers, consolidations or amalgamations, each as
permitted by the provisions of the Declaration.
Section 11.2. Waiver of Existing Defaults. Notwithstanding Section
6.04 of the Indenture, the Holders of a majority in aggregate principal amount
of the Notes may not waive a Default or an existing Event of Default (i) in the
payment of the principal of or accrued interest on the Notes, unless the Company
has paid or deposited with the Trustee a sum sufficient to pay all matured
installments of interest (with interest on overdue interest at the rate
specified in Section 2.5(a)) upon all of the Notes and the principal of the
Notes that shall have become due otherwise than by acceleration or (ii) that
arise out of a breach by the Company of Section 10.1.
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Section 6.02 of the Indenture shall, in all other respects and as modified by
this Section 11.2, apply to the Notes.
ARTICLE XII
MISCELLANEOUS
Section 12.1. Supplemental Indenture Incorporated Into Indenture.
This Third Supplemental Indenture is executed by the Company and the Trustee
pursuant to the provisions of Sections 2.01 and 2.02 of the Indenture, and the
terms and conditions hereof shall be deemed to be part of the Indenture for all
purposes relating to the Notes. The provisions of the Indenture, as modified by
this Third Supplemental Indenture, are effective with respect to the Notes, and
are not effective with respect to any series of Securities to be issued pursuant
to any subsequent supplemental indenture or resolution of the Board of
Directors. The Indenture, as supplemented by this Third Supplemental Indenture,
is in all respects adopted, ratified and confirmed.
Section 12.2. Trustee Not Responsible for Recitals; Disclaimer. The
recitals herein contained are made by the Company and not by the Trustee, and
the Trustee assumes no responsibility for the correctness thereof. The Trustee
makes no representation as to the validity or sufficiency of this Third
Supplemental Indenture.
Section 12.3. Governing Law. This Third Supplemental Indenture and
each Note shall be deemed to be a contract made under the internal laws of the
State of New York, and for all purposes shall be construed in accordance with
the laws of said State.
Section 12.4. Separability. In case any one or more of the
provisions contained in this Third Supplemental Indenture or in the Notes 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 Third Supplemental Indenture or of the Notes, but this Third
Supplemental Indenture and the Notes shall be construed as if such invalid or
illegal or unenforceable provision had never been contained herein or therein.
Section 12.5. Counterparts. This Third Supplemental Indenture may be
executed in any number of counterparts each of which shall be an original; but
such counterparts shall together constitute but one and the same instrument.
Section 12.6. Acknowledgment of Rights of Holders of Capital
Securities. The Company hereby acknowledges the right of each holder of Capital
Securities, upon and during the continuance of an Event of Default under the
Declaration that results from the failure of the Company to pay principal of or
premium, if any, or interest on the Notes when due, to directly institute
proceedings against the Company to obtain payment to such holder of an amount
equal to the principal, premium or
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interest so defaulted on with respect to Notes in a principal amount equal to
the aggregate liquidation amount of the Capital Securities owned by such holder.
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IN WITNESS WHEREOF, the parties hereto have caused this Third
Supplemental Indenture to be duly executed, and their respective corporate seals
to be hereunto affixed and attested, as of the day and year first above written.
TCI COMMUNICATIONS, INC.
[Seal] By
------------------------------
Name:
Title:
Attest:
------------------------------
Title:
THE BANK OF NEW YORK,
as Trustee
[Seal]
By
------------------------------
Name:
Title:
Attest:
------------------------------
Title:
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STATE OF )
COUNTY OF ) ss:
On the ___ day of March, 1997 before me personally came
______________, to me known, who, being by me duly sworn, did depose and say
that he is the ____________ of TCI COMMUNICATIONS, INC., one of the corporations
described in and which executed the above instrument; that he knows the
corporate seal of said corporation; that the seal affixed to the said instrument
is such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
NOTARY PUBLIC
[seal] Commission expires
STATE OF )
COUNTY OF ) ss:
On the ___ day of March, 1997 before me personally came _____________,
to me known, who, being by me duly sworn, did depose and say that he is the
____________ of THE BANK OF NEW YORK, one of the corporations described in and
which executed the above instrument; that he knows the corporate seal of said
corporation; that the seal affixed to the said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
NOTARY PUBLIC
[seal] Commission expires
28