Exhibit 4.17
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TCI COMMUNICATIONS, INC.,
TELE-COMMUNICATIONS, INC.
and
THE BANK OF NEW YORK, Trustee
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FIFTH SUPPLEMENTAL INDENTURE
Dated as of March 9, 1999
Supplement to Indenture
Dated as of January 29, 1996
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8.72% Subordinated Deferrable Interest Notes due 2045
10.00% Subordinated Deferrable Interest Notes due 2045
9.65% Subordinated Deferrable Interest Notes due 2027
9.72% Subordinated Deferrable Interest Notes due 2036
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THIS FIFTH SUPPLEMENTAL INDENTURE (this "Supplemental Indenture") is
made as of March 9, 1999, among TCI COMMUNICATIONS, INC., a Delaware corporation
("TCIC" or, before the Effective Time, the "Company"), as original issuer, TELE-
COMMUNICATIONS, INC., a Delaware corporation ("TCI" or, after the Effective
Time, the "Company"), as successor issuer, and THE BANK OF NEW YORK, a New York
banking corporation (the "Trustee"), as trustee.
RECITALS
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WHEREAS, TCIC and the Trustee have entered into an Indenture, dated as
of January 29, 1996, between TCIC and BONY, as supplemented by (w) the First
Supplemental Indenture, dated as of January 29, 1996, between TCIC and BONY; (x)
the Second Supplemental Indenture, dated as of May 22, 1996, between TCIC and
BONY; (y) the Third Supplemental Indenture, dated as of March 14, 1997, between
TCIC and BONY; and (z) the Fourth Supplemental Indenture, dated as of March 24,
1997, between TCIC and BONY (collectively, the "Original Indenture"), pursuant
to which the Company issued, and the Trustee authenticated and delivered, the
following securities which are, as of the date hereof, currently outstanding
(collectively, the "Securities"):
(a) $500 million aggregate principal amount of the Company's 8.72% Subordinated
Deferrable Interest Notes due 2045;
(b) $500 million aggregate principal amount of the Company's 10.00% Subordinated
Deferrable Interest Notes due 2045;
(c) $300 million aggregate principal amount of the Company's 9.65% Subordinated
Deferrable Interest Notes due 2027; and
(d) $200 million aggregate principal amount of the Company's 9.72% Subordinated
Deferrable Interest Notes due 2036;
WHEREAS, TCIC and TCI have entered into an Agreement and Plan of
Merger, dated as of January 12, 1999, that provides for the merger (the
"Merger") of TCIC with and into TCI;
WHEREAS, the Merger will become effective upon the filing of an
appropriate certificate of merger with the Secretary of State of the State of
Delaware (the time and date when the Merger becomes effective is referred to
herein as the "Effective Time");
WHEREAS, at the Effective Time, the separate corporate existence of
TCIC will cease and TCI will continue as the surviving corporation of the
Merger;
WHEREAS, pursuant to Section 5.01 of the Original Indenture, the
Company may not merge into another corporation unless (i) the successor
corporation is a corporation organized and existing under the laws of the United
States or any State thereof; (ii) the successor corporation
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assumes by supplemental indenture all of the obligations of the Company under
the Securities and the Original Indenture and (iii) immediately after giving
effect to the merger, no Default or Event of Default shall have occurred and be
continuing;
WHEREAS, (i) immediately after giving effect to the Merger, no
Default or Event of Default shall have occurred and be continuing, (ii) TCI is a
corporation organized and existing under the laws of the State of Delaware,
which is a State of the United States and (iii) TCI desires to assume pursuant
to this Supplemental Indenture, as of the Effective Time, all of the obligations
of the Company under the Securities and the Indenture; and
WHEREAS, this Supplemental Indenture has been duly authorized by all
necessary action on the part of TCIC and TCI.
NOW, THEREFORE, TCIC, TCI and the Trustee agree as follows for the
equal and ratable benefit of the Holders:
ARTICLE I
DEFINITIONS; INTERPRETATION
1.1. Definitions. Capitalized terms that are defined in the preamble
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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.
1.2. Interpretation. References in the Original Indenture (including
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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
THE MERGER
2.1. Assumption by TCI. TCI, as the surviving corporation of the
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Merger, shall become fully responsible as of the Effective Time, 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 shall succeed to and be substituted for
TCIC with the same effect as if it had been named in the Indenture as the
original issuer, and TCIC thereupon shall be relieved of any further liability
or obligation under the Indenture or upon the Securities. Upon and following
the Effective Time, the parties hereto agree that all references to the
"Company" in the Indenture and the Securities shall be 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.
2.2. Representations, Warranties and Covenants Regarding the Merger.
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TCIC and TCI jointly and severally represent, warrant and covenant to the
Trustee as follows:
(a) TCI is a corporation duly organized and validly existing
under the laws of the State of Delaware; and
(b) As of the date hereof, no Default or Event of Default has
occurred that is continuing, and, immediately after giving effect to
the Merger and the assumption contemplated by Section 2.01 hereof, no
Default or Event of Default shall occur and be continuing.
ARTICLE III
MISCELLANEOUS
3.1. Conflict with the TIA. If any provision of this Supplemental
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Indenture modifies or excludes any provision of the TIA that is required under
such Act to be part of and govern the Indenture, the latter provision of the TIA
shall control. If any provision hereof modifies or excludes any provision of
the TIA that may be so modified or excluded, the latter provision of the TIA
shall be deemed to apply to this Supplemental Indenture, as so modified or
excluded, as the case may be.
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3.2. Date and Time of Effectiveness. This Supplemental Indenture
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shall become a legally effective and binding instrument at and as of the
Effective Time.
3.3. Securities Deemed Conformed. Beginning at the Effective Time,
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the provisions of each Security then outstanding shall be deemed to be
conformed, without the necessity for any reissuance or exchange such Security or
any other action on the part of the Holders, TCIC, TCI or the Trustee, so as to
reflect this Supplemental Indenture.
3.4. Successors. All agreements of TCIC, TCI and the Trustee in
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this Supplemental Indenture and in the Indenture shall bind their respective
successors.
3.5. Benefits of Supplemental Indenture. Nothing in this
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Supplemental Indenture, express or implied, shall give to any person, other than
the parties hereto and their successors hereunder, any Agent and the Holders,
any benefit or any legal or equitable right, remedy or claim under this
Supplemental Indenture or the Indenture.
3.6. Separability. In case any provision in this Supplemental
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Indenture, or in the Indenture, shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby, it being intended that all of the
provisions hereof shall be enforceable to the full extent permitted by law.
3.7. Trustee Responsibility. The Trustee assumes no duties,
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responsibilities or liabilities by reason of this Supplemental Indenture other
than as set forth in the Original Indenture. The Trustee assumes no
responsibility for the correctness of the statements herein contained, which
shall be taken as statements of TCIC and TCI. This Supplemental Indenture is
executed and accepted by the Trustee subject to all of the terms and conditions
of its acceptance of the trust under the Original Indenture, as fully as if said
terms and conditions were herein set forth in full.
3.8. Headings. The Article and Section headings of this
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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.
3.9. Counterparts. This Supplemental Indenture may be executed in
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counterparts, each of which shall for all purposes be deemed to be an original,
and all such counterparts shall together constitute but one and the same
instrument.
3.10. Notices. Beginning at the Effective Time, the addresses for
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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:
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If to the Company:
Tele-Communications, Inc.
Terrace Tower II
0000 XXX Xxxxxxx
Xxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Treasurer
If to the Trustee:
The Bank of New York
000 Xxxxxxx Xxxxxx, Xxxxx 00X
Xxx Xxxx, Xxx Xxxx 00000
3.11. Governing Law. This Supplemental Indenture shall be governed
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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.
TCI COMMUNICATIONS, INC.
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Executive Vice President
TELE-COMMUNICATIONS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx XX
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Name: Xxxxxxx X. Xxxxxxxxx XX
Title: Senior Vice President
THE BANK OF NEW YORK
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Vice President
