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EXHIBIT 4.5
TELE-COMMUNICATIONS, INC.
and
THE BANK OF NEW YORK, Trustee
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SIXTH SUPPLEMENTAL INDENTURE
Dated as of February 25, 2000
Supplement to Indenture Dated as of January 29, 1996
as supplemented by
First Supplemental Indenture Dated as of January 29, 1996,
Second Supplemental Indenture Dated as of May 22, 1996,
Third Supplemental Indenture Dated as of March 14, 1997,
Fourth Supplemental Indenture Dated as of March 24, 1997, and
Fifth Supplemental Indenture Dated as of March 9, 1999
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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 SIXTH 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
January 29, 1996, as supplemented by a First Supplemental Indenture, dated as of
January 29, 1996, a Second Supplemental Indenture, dated as of May 22, 1996, a
Third Supplemental Indenture, dated as of March 14, 1997, a Fourth Supplemental
Indenture, dated as of March 24, 1997, and a Fifth Supplemental Indenture, dated
as of March 9, 1999 (collectively, the "Original Indenture"), pursuant to which
the Company issued (as successor issuer), and the Trustee authenticated and
delivered the following securities which are, as of the date hereof, currently
outstanding (collectively, the "Securities"):
(a) $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, 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.
ARTICLE II
AMENDMENTS
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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 4.04 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) The second sentence of the third paragraph of
Section 6.3 to the First Supplemental Indenture of the
Original Indenture is hereby amended to insert the words "or
limited liability company" after each occurrence of the word
"corporation."
(i) The second sentence of the third paragraph of
Section 6.3 to the Second Supplemental Indenture of the
Original Indenture is hereby amended to insert the words "or
limited liability company" after each occurrence of the word
"corporation."
(j) The second sentence of the third paragraph of
Section 6.3 to the Third Supplemental Indenture of the
Original Indenture is hereby amended to insert the words "or
limited liability company" after each occurrence of the word
"corporation."
(k) The second sentence of the third paragraph of
Section 6.3 to the Fourth Supplemental Indenture of the
Original Indenture is hereby amended to insert the words "or
limited liability company" after each occurrence of the word
"corporation."
ARTICLE III
MISCELLANEOUS
SECTION 3.1 Conflict with the TIA. If any provision of this
Supplemental Indenture modifies or excludes any provision of
the TIA that is required under such Act to be part of and
govern the Indenture, the latter provision of the TIA shall
control. If any provision hereof modifies or excludes any
provision of the TIA that may be so modified or excluded,
the latter provision of the TIA shall be deemed to apply to
this Supplemental Indenture, as so modified or excluded, as
the case may be.
SECTION 3.2 Date and Time of Effectiveness. This Supplemental
Indenture shall become a legally effective and binding
instrument at and as of the date hereof.
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SECTION 3.3 Securities Deemed Conformed. As of the date
hereof, the provisions of each Security then outstanding
shall be deemed to be conformed, without the necessity for
any reissuance or exchange of such Security or any other
action on the part of the Holders, TCI or the Trustee, so as
to reflect this Supplemental Indenture.
SECTION 3.4 Successors. All agreements of TCI and the Trustee
in this Supplemental Indenture and in the Indenture shall
bind their respective successors.
SECTION 3.5 Benefits of Supplemental Indenture. Nothing in
this Supplemental Indenture, express or implied, shall give
to any person, other than the parties hereto and their
successors hereunder, any Agent, Authenticating Agent and
the Holders, any benefit or any legal or equitable right,
remedy or claim under this Supplemental Indenture or the
Indenture.
SECTION 3.6 Separability. In case any provision in this
Supplemental Indenture, or in the Indenture, shall be
invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby, it being intended
that all of the provisions hereof shall be enforceable to
the full extent permitted by law.
SECTION 3.7 Trustee Responsibility. The Trustee assumes no
duties, responsibilities or liabilities by reason of this
Supplemental Indenture other than as set forth in the
Original Indenture. The Trustee assumes no responsibility
for the correctness of the statements herein contained,
which shall be taken as statements of TCI. This Supplemental
Indenture is executed and accepted by the Trustee subject to
all of the terms and conditions of its acceptance of the
trust under the Original Indenture, as fully as if said
terms and conditions were herein set forth in full.
SECTION 3.8 Headings. The Article and Section headings of this
Supplemental Indenture have been inserted for convenience of
reference only, are not to be considered a part of this
Supplemental Indenture and shall in no way modify or
restrict any of the terms or provisions hereof.
SECTION 3.9 Counterparts. This Supplemental Indenture may be
executed in counterparts, each of which shall for all
purposes be deemed to be an original, and all such
counterparts shall together constitute but one and the same
instrument.
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SECTION 3.10 Notices. The addresses for notices to the Company
and the Trustee set forth in Section 11.02 of the Original
Indenture shall be amended, without further action, to read
in their entirety as follows:
"If to the Company:
Tele-Communications, Inc.
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Treasurer
If to the Trustee:
The Bank of New York
000 Xxxxxxx Xxxxxx, Xxxxx 00X
Xxx Xxxx, Xxx Xxxx 00000"
SECTION 3.11 Governing Law. This Supplemental Indenture shall
be governed by and construed in accordance with the internal
laws of the State of New York.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the day and year first above written.
TELE-COMMUNICATIONS, INC.
By:
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Name:
Title:
THE BANK OF NEW YORK, as Trustee
By: ------------------------------------
Name:
Title:
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