<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 6)*
Tele-Communications, Inc.
------------------------------------
(NAME OF ISSUER)
1. Tele-Communications, Inc. Series A TCI Group Common Stock, par value
$1.00 per share ("Series A TCI Group
Common Stock")
2. Tele-Communications, Inc. Series B TCI Group Common Stock, par value
$1.00 per share ("Series B TCI Group
Common Stock")
3. Tele-Communications, Inc. Series A Liberty Media Group Common Stock,
par value $1.00 per share ("Series A
Liberty Media Group Common Stock")
4. Tele-Communications, Inc. Series B Liberty Media Group Common Stock,
par value $1.00 per share ("Series B
Liberty Media Group Common Stock")
5. Tele-Communications, Inc. Series A TCI Ventures Group Common Stock,
par value $1.00 per share ("Series A
Ventures Group Common Stock")
6. Tele-Communications, Inc. Series B TCI Ventures Group Common Stock,
par value $1.00 per share ("Series B
Ventures Group Common Stock")
7. Class B 6% Cumulative Redeemable Exchangeable Junior Preferred Stock,
par value $.01 per share ("Class B Preferred Stock")
------------------------------------
(TITLE OF CLASS OF SECURITIES)
1. Series A TCI Group Common Stock: 87924V101
2. Series B TCI Group Common Stock: 87924V200
3. Series A Liberty Media Group Common Stock: 87924V507
4. Series B Liberty Media Group Common Stock: 87924V606
5. Series A Ventures Group Common Stock: 87924V887
6. Series B Ventures Group Common Stock: 87924V879
7. Class B Preferred Stock: 87924V309
------------------------------------
(CUSIP NUMBER)
Raymond L. Sutton, Jr.
Baker & Hostetler LLP
303 East 17th Avenue, Suite 1100
Denver, Colorado 80203
- -------------------------------------------------------------------------------
(NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON AUTHORIZED TO RECEIVE NOTICES AND
COMMUNICATIONS)
October 16, 1998
------------------------------------
(DATE OF EVENT WHICH REQUIRES FILING OF THIS STATEMENT)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition that is the subject of this Schedule 13D, and is filing this
schedule because of ss.ss. 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the
following box. / /
NOTE: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See ss. 240.13d-7(b) for other
parties to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
Exhibit Index on Page A-1
Page 1 of 8
<PAGE>
CUSIP Nos.
<TABLE>
<CAPTION>
<S> <C>
Series A TCI Group Common Stock: 87924V101
Series B TCI Group Common Stock: 87924V200
Series A Liberty Media Group Common Stock: 87924V507
Series B Liberty Media Group Common Stock: 87924V606
Series A Ventures Group Common Stock: 87924V887
Series B Ventures Group Common Stock: 87924V879
Class B Preferred Stock: 87924V309
- ---------------------------------------------------------------------------------------------------------------------
1) Names of Reporting Persons I.R.S. Identification Nos. of Above Persons (entities only)
Kim Magness
- ---------------------------------------------------------------------------------------------------------------------
2) Check the Appropriate Box if a Member of a Group (See Instructions)
(a) / /
(b) /X/
- ---------------------------------------------------------------------------------------------------------------------
3) SEC Use Only
- ---------------------------------------------------------------------------------------------------------------------
4) Source of Funds (See Instructions) BK
- ---------------------------------------------------------------------------------------------------------------------
5) Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e) / /
- ---------------------------------------------------------------------------------------------------------------------
6) Citizenship or Place of Organization U.S.A.
- ---------------------------------------------------------------------------------------------------------------------
7) Sole Voting Power Series A TCI Group Common Stock 5,940,468(1)
Series B TCI Group Common Stock 5,910,468(2)
Series A Liberty Media Group Common Stock 5,085,860(1)
Series B Liberty Media Group Common Stock 2,589,829(2)
Series A Ventures Group Common Stock 6,202,152(1)
Series B Ventures Group Common Stock 6,202,152(2)
Class B Preferred Stock 62,500(2)
--------------------------------------------------------------------------------------------------
8) Shared Voting Power Series A TCI Group Common Stock 15,964,145(1)
Series B TCI Group Common Stock 15,964,145(2)
Number of Shares Series A Liberty Media Group Common Stock 18,037,921(1)
Series B Liberty Media Group Common Stock 11,454,693(2)
Beneficially Series A Ventures Group Common Stock 12,034,298(1)
Series B Ventures Group Common Stock 12,034,298(2)
Owned by Each Class B Preferred Stock 0(2)
--------------------------------------------------------------------------------------------------
Reporting Person 9) Sole Dispositive Power Series A TCI Group Common Stock 5,940,468(1)
Series B TCI Group Common Stock 5,910,468(2)
With Series A Liberty Media Group Common Stock 5,085,860(1)
Series B Liberty Media Group Common Stock 2,589,829(2)
Series A Ventures Group Common Stock 6,202,152(1)
Series B Ventures Group Common Stock 6,202,152(2)
Class B Preferred Stock 62,500(2)
--------------------------------------------------------------------------------------------------
10) Shared Dispositive Power Series A TCI Group Common Stock 15,964,145(1)
Series B TCI Group Common Stock 15,964,145(2)
Series A Liberty Media Group Common Stock 18,037,921(1)
Series B Liberty Media Group Common Stock 11,454,693(2)
Series A Ventures Group Common Stock 12,034,298(1)
Series B Ventures Group Common Stock 12,034,298(2)
Class B Preferred Stock 0(2)
- ---------------------------------------------------------------------------------------------------------------------
11) Aggregate Amount Beneficially Owned by Each Reporting Person
Series A TCI Group Common Stock 21,904,613(1)
Series B TCI Group Common Stock 21,874,613(2)
Series A Liberty Media Group Common Stock 23,123,781(1)
Series B Liberty Media Group Common Stock 14,044,522(2)
Series A Ventures Group Common Stock 18,236,450(1)
Series B Ventures Group Common Stock 18,236,450(2)
Class B Preferred Stock 62,500(2)
- ---------------------------------------------------------------------------------------------------------------------
Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) / /
- ---------------------------------------------------------------------------------------------------------------------
13) Percent of Class Represented by Amount in Row (11)
4.4% of Series A TCI Group Common Stock
43.8% of Series B TCI Group Common Stock
6.8% of Series A Liberty Media Group Common Stock
44.3% of Series B Liberty Media Group Common Stock
4.6% of Series A Ventures Group Common Stock
40.2% of Series B Ventures Group Common Stock
4.0% of Class B Preferred Stock
- ---------------------------------------------------------------------------------------------------------------------
14) Type of Reporting Person (See Instructions) IN
- ---------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Series B TCI Group Common Stock, Series B Liberty Media
Group Common Stock and Series B Ventures Group Common Stock are
convertible at any time on a one-for-one basis into Series A TCI
Group Common Stock, Series A Liberty Media Group Common Stock and
Series A Ventures Group Common Stock, respectively. SEE Item 5 below.
The numbers of shares of Series A TCI Group Common Stock, Series A
Liberty Media Group Common Stock and Series A Ventures Group Common
Stock shown in rows 7 through 11 above assume that the shares of
Series B TCI Group Common Stock, Series B Liberty Media Group Common
Stock and Series B Ventures Group Common Stock shown in rows 7
through 11 above have been converted into shares of Series A TCI
Group Common Stock, Series A Liberty Media Group Common Stock, and
Series A Ventures Group Common Stock, respectively.
(2) SEE Item 5.
Page 2 of 8
<PAGE>
ITEM 1. SECURITY AND ISSUER
Kim Magness hereby amends and supplements the statement on Schedule 13D
(the "Statement") with respect to the following shares of stock of
Tele-Communications, Inc. beneficially owned by Kim Magness:
1. Tele-Communications, Inc. Series A TCI Group Common Stock, par
value $1.00 per share ("Series A TCI Group Common Stock");
2. Tele-Communications, Inc. Series B TCI Group Common Stock, par
value $1.00 per share ("Series B TCI Group Common Stock");
3. Tele-Communications, Inc. Series A Liberty Media Group Common
Stock, par value $1.00 per share ("Series A Liberty Media Group Common Stock");
4. Tele-Communications, Inc. Series B Liberty Media Group Common
Stock, par value $1.00 per share ("Series B Liberty Media Group Common Stock");
5. Tele-Communications, Inc. Series A TCI Ventures Group Common
Stock, par value $1.00 per share ("Series A Ventures Group Common Stock");
6. Tele-Communications, Inc. Series B TCI Ventures Group Common
Stock, par value $1.00 per share ("Series B Ventures Group Common Stock"); and
7. Class B 6% Cumulative Redeemable Exchangeable Junior Preferred
Stock, par value $.01 per share ("Class B Preferred Stock").
The issuer of the Series A TCI Group Common Stock, the Series B TCI
Group Common Stock, the Series A Liberty Media Group Common Stock, the Series B
Liberty Media Group Common Stock, the Series A Ventures Group Common Stock, the
Series B Ventures Group Common Stock and the Class B Preferred Stock
(collectively, the "Company Securities") is Tele-Communications, Inc. (the
"Company") whose principal executive offices are located at Terrace Tower II,
5619 DTC Parkway, Englewood, Colorado 80111.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
Item 3 of the Statement is hereby amended and supplemented by adding
the following at the end thereof:
The Bob Magness Estate borrowed $206,151,170 under a credit facility
provided by Bankers Trust Company (the "Bank"). The maximum principal amount of
the promissory note evidencing this debt is $300,000,000. The loan is evidenced
by a Secured Promissory Note dated February 9, 1998 and an Allonge, First
Amendment to Note dated October 16, 1998 (together the "Note") and is secured by
a pledge of Series B TCI Group Common Stock and Series B Liberty Media Group
Common Stock made by the Co-Personal Representatives on behalf of the Bob
Magness Estate pursuant to a Borrower Security and Pledge Agreement dated
February 9, 1998, as amended by an Amendment and Confirmation of Borrower
Security and Pledge Agreement dated October 16, 1998. The Note contains several
variables with regard to interest rates and payment terms. In all events, the
unpaid principal balance, together with any accrued interest, must be paid on
October 30, 1999, unless the Note is extended with the Bank's consent as
provided in the Note. A total of $273,072,472.90 has been advanced under the
Note
Page 3 of 8
<PAGE>
and bears an interest rate of .375% above the LIBOR rate in effect on the
date of borrowing. See Exhibits 7 and 8.
ITEM 4. PURPOSE OF TRANSACTION
Item 4 of the Statement is hereby amended and supplemented by adding
the following at the end thereof:
On October 16, 1998, the Bob Magness Estate fully exercised the Magness
Group's right to purchase shares of Series B TCI Group Common Stock pursuant to
the Malone Right and purchased 5,792,800 shares of Series B TCI Group Common
Stock from the Company. The 5,792,800 shares purchased constitute the full right
of the Magness Group to participate in the Malone Right on a proportionate basis
with Malone with respect to 12,406,238 shares of the 14,511,570 shares subject
to the Malone Right. The exercise price per share purchased pursuant to the
Malone Right is $35.5875 based on the average of the closing sales price of the
Series B TCI Group Common Stock on the Nasdaq National Market for the five
trading days preceding June 24, 1998, which was the date Malone exercised his
right to purchase shares pursuant to the Malone Right.
The Bob Magness Estate purchased all of the shares that the Magness
Group had the right to acquire under the Malone Right. Therefore, because the
Magness Group's right to purchase shares of Series B TCI Group Common Stock was
fully exercised by the Bob Magness Estate, neither the Bob Magness Estate nor
any other member of the Magness Group, including, but not limited to, Kim
Magness, has any right to purchase additional shares pursuant to the Malone
Right.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER
Item 5(a) of the Statement is hereby deleted in its entirety and
replaced with the following:
(a) The aggregate number and percentage of the Company Securities
beneficially owned by the filing person are as follows:
<TABLE>
<CAPTION>
AMOUNT OF PERCENT OF TOTAL
TITLE OF CLASS BENEFICIAL OWNERSHIP CLASS (1) VOTING POWER(1)
-------------- -------------------- --------- --------
22.3%
<S> <C> <C> <C>
Series A TCI Group Common Stock 21,904,613(2)(3)(4)(5)(6) 4.4%
Series B TCI Group Common Stock 21,874,613(2)(3)(4)(5) 43.8%
Series A Liberty Media Group Common Stock 23,123,781(2)(3)(4)(5)(6) 6.8%
Series B Liberty Media Group Common Stock 14,044,522(2)(3)(4)(5) 44.3%
Page 4 of 8
<PAGE>
Series A Ventures Group Common Stock 18,236,450(2)(3)(4)(5) 4.6%
Series B Ventures Group Common Stock 18,236,450(2)(3)(4)(5) 40.2%
Class B Preferred Stock 62,500(7) 4.0%
</TABLE>
(1) Based on 473,416,687 shares of Series A TCI Group Common Stock,
49,932,623 shares of Series B TCI Group Common Stock, 325,932,623
shares of Series A Liberty Media Group Common Stock, 31,699,575 shares
of Series B Liberty Media Group Common Stock, 377,065,516 shares of
Series A Ventures Group Common Stock, 45,334,022 shares of Series B
Ventures Group Common Stock, 1,552,490 shares of Class B Preferred
Stock, 44,575 shares of TCI Group Preferred Stock, Series C, 70,575
shares of Liberty Media Group Preferred Stock, Series C, 6,444,244
shares of Redeemable Convertible TCI Group Preferred Stock, Series G,
and 6,564,794 shares of Redeemable Convertible Liberty Media Group
Preferred Stock, Series H, outstanding on September 30, 1998, in each
case after elimination of shares then held by the Company and its
majority owned subsidiaries.
(2) Series B TCI Group Common Stock, Series B Liberty Media Group Common
Stock and Series B Ventures Group Common Stock ("Series B Shares") are
convertible at any time on a one-for-one basis into Series A TCI Group
Common Stock, Series A Liberty Media Group Common Stock and Series A
Ventures Group Common Stock ("Series A Shares"), respectively. The
numbers of shares of Series A TCI Group Common Stock, Series A Liberty
Media Group Common Stock and Series A Ventures Group Common Stock shown
in this Item 5 assume that the shares of Series B TCI Group Common
Stock, Series B Liberty Media Group Common Stock, and Series B Ventures
Group Common Stock have been fully converted into shares of Series A
TCI Group Common Stock, Series A Liberty Media Group Common Stock, and
Series A Ventures Group Common Stock, respectively.
In addition, each share of Series B TCI Group Common Stock, Series B
Liberty Media Group Common Stock and Series B Ventures Group Common
Stock is entitled to 10 votes per share and each share of Series A TCI
Group Common Stock, Series A Liberty Media Group Common Stock and
Series A Ventures Group Common Stock is entitled to one vote per share.
Holders of Class B Preferred Stock vote with the holders of the Series
A TCI Group Common Stock, Series B TCI Group Common Stock, Series A
Liberty Media Group Common Stock, Series B Liberty Media Group Common
Stock, Series A Ventures Group Common Stock, Series B Ventures Group
Common Stock, and certain classes/series of the Company preferred stock
on the election of directors. Accordingly, when these series and
classes of stock are aggregated, Kim Magness may be deemed to currently
beneficially own voting equity securities representing approximately
22.3% of the voting power with respect to a general election of
directors of the Company.
(3) On February 9, 1998, Malone and his spouse (the "Malone Group") and the
Magness Group entered into the Stockholders' Agreement (as described in
Item 4 above) pursuant to which the parties agreed, among other things,
to consult with each other on any matter coming to a vote of the
Company's stockholders provided, however, that in the event of a
disagreement, the shares of Series B TCI Group Common Stock, Series B
Liberty Media Group Common Stock and Series B Ventures Group Common
Stock held by the Malone Group and the Magness Group will be voted in
the manner directed by Malone pursuant to an irrevocable proxy given by
the Magness Group. See Item 4 above for more information on the
Stockholders' Agreement.
The Stockholders' Agreement gives the Magness Group and Malone the
right to purchase from the Company, on a proportionate basis,
12,406,238 shares of Series B TCI Group Common Stock (the "Malone
Right"). On October 16, 1998, the Bob Magness Estate fully exercised
the Magness Group's right to purchase shares of Series B TCI Group
Common Stock pursuant to the Malone Right and purchased 5,792,800
shares of Series B TCI Group Common Stock from the Company. The
5,792,800 shares purchased constitute the full right of the Magness
Group to participate in the Malone Right on a proportionate basis with
Malone with respect to 12,406,238 shares of the 14,511,570 shares
subject to the Malone Right. The exercise price per share purchased
pursuant to the Malone Right is $35.5875 based on the average of the
closing sales price of the Series B TCI Group Common Stock on the
Nasdaq National
Page 5 of 8
<PAGE>
Market for the five trading days preceding June 24, 1998, which was the
date Malone exercised his right to purchase shares pursuant to the
Malone Right.
The Bob Magness Estate purchased all of the shares that the Magness
Group had the right to acquire under the Malone Right. Therefore,
because the Magness Group's right to purchase shares of Series B TCI
Group Common Stock was fully exercised by the Bob Magness Estate,
neither the Bob Magness Estate nor any other member of the Magness
Group has any right to purchase additional shares pursuant to the
Malone Right.
In addition, shares of Series B TCI Group Common Stock, Series B
Liberty Media Group Common Stock, and Series B Ventures Group Common
Stock held by Kim Magness, Gary Magness, the Bob Magness Estate, the
Betsy Magness Estate and Magness Securities, LLC are subject to the
terms of the Magness Call Agreement. SEE Item 4.
(4) Kim Magness is the personal representative of the Betsy Magness Estate
and the Manager of the Magness LLC. The Betsy Magness Estate is the
sole member of the Magness LLC. Accordingly, the following shares
beneficially owned by the Magness LLC are reflected in full in Kim
Magness' share information: (i) 5,539,818 shares of Series A TCI Group
Common Stock, (ii) 5,539,818 shares of Series B TCI Group Common Stock,
(iii) 4,753,985 shares of Series A Liberty Media Group Common Stock,
(iv) 2,379,829 shares of Series B Liberty Media Group Common Stock, (v)
5,823,452 shares of Series A Ventures Group Common Stock, and (vi)
5,823,452 shares of Series B Ventures Group Common Stock. The foregoing
share numbers assume the conversion in full of all Series B Shares into
Series A Shares. SEE footnote 2 to this Item 5(a) for an explanation of
the convertibility of Series B Shares into Series A Shares.
(5) Kim Magness and Gary Magness are co-personal representatives of the Bob
Magness Estate. Accordingly, the following shares beneficially owned by
the Bob Magness Estate are reflected in full in Kim Magness' and Gary
Magness' share information (i) 15,964,145 shares of Series A TCI Group
Common Stock, (ii) 15,964,145 shares of Series B TCI Group Common
Stock, (iii) 18,037,921 shares of Series A Liberty Media Group Common
Stock, (iv) 11,454,693 shares of Series B Liberty Media Group Common
Stock, (v) 12,034,298 shares of Series A Ventures Group Common Stock,
and (vi) 12,034,298 shares of Series B Ventures Group Common Stock. The
foregoing share numbers assume the conversion in full of all Series B
Shares into Series A Shares. SEE footnote 2 to this Item 5(a) for an
explanation of the convertibility of Series B Shares into Series A
Shares.
(6) Includes the exercise in full of options granted to Kim Magness in
November 1995, pursuant to the Company's Director Stock Option Plan, to
acquire 30,000 shares of Series A TCI Group Common Stock and 16,875
shares of Series A Liberty Media Group Common Stock. Options to acquire
50,000 shares of Series A TCI Group Common Stock and 28,125 shares of
Series A Liberty Media Group Common Stock are covered by such grant, of
which options to acquire 30,000 and 16,875 shares respectively are
currently exercisable. No additional options are exercisable within the
next 60 days.
(7) Such shares are directly held by the Kim Magness Irrevocable Trust and
are deemed beneficially owned by Kim Magness since he is the sole
trustee and current primary beneficiary of such trust.
Item 5(b) of the Statement is hereby deleted in its entirety and
replaced with the following:
(b) The following indicates for the filing person the number of
shares of Company Securities as to which there is sole or
shared power (as a co-personal representative of the Bob
Magness Estate) to vote or dispose of the Shares:
<TABLE>
<CAPTION>
Class of Security Sole Power Shared Power
----------------- ---------- ------------
<S> <C> <C>
Series A TCI Group Common Stock 5,940,468 15,964,145
Series B TCI Group Common Stock 5,910,468 15,964,145
Series A Liberty Media Group Common Stock 5,085,860 18,037,921
Series B Liberty Media Group Common Stock 2,589,829 11,454,693
Page 6 of 8
<PAGE>
Series A Ventures Group Common Stock 6,202,152 12,034,298
Series B Ventures Group Common Stock 6,202,152 12,034,298
Class B Preferred Stock 62,500 0
</TABLE>
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
EXHIBIT DESCRIPTION
99.7. Allonge, First Amendment to Note dated October 15, 1998
in the principal sum of $300,000,000 payable by the
Estate of Bob J. Magness to Bankers Trust Company
99.8. Amendment and Confirmation of Borrower Security and Pledge
Agreement dated October 15, 1998 made by the Estate of
Bob J. Magness to Bankers Trust Company
Page 7 of 8
<PAGE>
SIGNATURES
After reasonable inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this Statement is true, complete and correct.
Dated: November 13, 1998
/s/ Kim Magness
- ----------------------------------------
Kim Magness
Page 8 of 8
<PAGE>
INDEX OF EXHIBITS
EXHIBIT DESCRIPTION
99.7. Allonge, First Amendment to Note dated October 15, 1998 in
the principal sum of $300,000,000 payable by the Estate
of Bob J. Magness to Bankers Trust Company
99.8. Amendment and Confirmation of Borrower Security and Pledge
Agreement dated October 15, 1998 made by the Estate of
Bob J. Magness to Bankers Trust Company
Page A-1
<PAGE>
ALLONGE, FIRST AMENDMENT TO NOTE
Reference is made to the Secured Promissory Note dated February 9, 1998
(the "Note") made by the Estate of Bob J. Magness ("BORROWER") to the order of
Bankers Trust Company (the "BANK") evidencing the principal amount of up to
$80,000,000. Any capitalized term not defined in this Allonge, First Amendment
to Note (this "Allonge") shall have the meaning set forth in the Note.
Borrower has requested that Bank amend the Note to increase the
principal sum which may be borrowed thereunder from $80,000,000 to $300,000,000,
to extend the Maturity Date to October 30, 1999 and to make certain other
modifications thereto. Bank has agreed provided that Borrower execute and
deliver this Allonge.
Bank agrees that Borrower shall be permitted to borrow up to
$300,000,000 outstanding at any one time under the Note subject to the terms and
provisions hereof and thereof. Accordingly, any reference in the Note to the
Maximum Amount shall mean $300,000,000. Borrower agrees that the increased
amount of the Loan being made available hereunder shall be repaid in accordance
with, and shall otherwise be subject to the terms and conditions of, the Note as
amended hereby. In confirmation thereof, Borrower hereby promises to pay to the
order of Bank the principal sum of Three Hundred Million Dollars or, if less,
the then outstanding principal amount of the Loan on the Maturity Date, together
with interest thereon all in accordance with the Note as amended hereby.
1. MATURITY DATE. The Maturity Date is hereby extended from
February 9, 1999 to October 30, 1999 and references herein or in the Note to the
Maturity Date shall mean October 30, 1999 as it may be extended for consecutive
364-day periods in accordance with the provisions set forth in Section 2.1(b) of
the Note. For clarity sake, references to the "Maturity Date" in the first and
second sentences of Section 2.1(b) shall be deemed to be references to the
"then-current Maturity Date". In addition, the following is deemed added at the
end of Section 2.1(b): "If Bank fails to deliver such notice, then it shall be
as if Bank had denied such extension. Upon such denial (whether by notice from
Bank or failure by Bank to deliver such notice), there shall be no right to any
further extension other than the ninety (90) day period as and to the extent set
forth above in this Section 2.1(b)."
2. PURPOSE. The additional principal amount of the Loan being made
available pursuant hereto shall be used: (a) to lend $5,000,000 to the Estate of
Betsy Ruth Magness (the "BETSY ESTATE") so that the Betsy Estate shall have
sufficient funds to repay its outstanding indebtedness to Bank, (b) to purchase
5,792,800 shares of Series B Common Stock of TCI pursuant to Borrower's "Tag
Along" rights under the Stockholders' Agreement, and (c) for general purposes of
Borrower.
3. UNUSED FEE. Effective as of the earlier of (x) October 31, 1998
or (y) the date of the first advance of the Loan made after the date hereof
(such earlier date, the "EFFECTIVE DATE"), the letter dated February 9, 1998
made by Borrower to Bank (the "2/9/98 LETTER") relating to an unused fee due
with respect to the Note and the note made by the Betsy Estate to Bank shall be
void and of no further force or effect. In lieu thereof, Borrower agrees that
if
average daily borrowings of at least $150,000,000 are not maintained under the
Note for any calendar quarter (or partial calendar quarter) occurring after the
Effective Date up to maturity, then Borrower shall pay to Bank an unused fee in
an amount equal to one-eighth of one percent (.125%) per annum on the average
daily unadvanced portion of $150,000,000 for any such quarter (or partial
quarter), such unused fee to be paid upon receipt by Borrower of a certificate
from Bank stating that such aggregate average daily borrowings for such quarter
(or partial quarter) have not been maintained and setting forth the calculation
of the unused fee. The unused fee, if any, due under the 2/9/98 Letter for the
calendar quarter ending September 30, 1998 and for the portion of the calendar
quarter occurring after September 30, 1998 but prior to the Effective Date is
hereby waived by Bank.
4. CONVERSION LIMIT. The provisions of Section 11(a) of the Note
shall not apply to Borrower's exercise of its "Tag Along"
<PAGE>
rights described in Paragraph 2(b) of this Allonge.
5. CORRECTIONS TO NOTE. The words "then and in any such event"
appearing at the end of clause (viii) of Section 10 of the Note shall be deemed
deleted therefrom and, instead, shall be deemed inserted (with a semicolon
following the word "event") after the words "or Bank's lien thereon shall be
adversely affected" appearing in clause (ix) of said Section 10. The reference
to "Ba1" in Section 11(b) of the Note shall be deemed to be "Baa3". In
addition,
in determining whether the rating of the debt of any issuer of Collateral has
fallen below the acceptable level in either Section 11(b) or 11(c), the lower
rating of either Standard & Poor's or Moody's (or their respective successors)
shall control.
6. NO DEFAULT OR OFFSET. Borrower represents and warrants to Bank
that there is currently no default or Event of Default under the Note or the
Pledge Agreement and that all of the representations and warranties set forth
therein remain true and correct as of the date hereof. Borrower acknowledges
that the Loan outstanding as of the date hereof is due and owing by Borrower to
Bank without offset, defense, crossclaim or counterclaim together with interest
as set forth in the Note, and, to the extent any such offset, defense,
crossclaim and counterclaim exists, same are hereby irrevocably waived.
7. RATIFICATION. All of the above terms and provisions of this
Allonge are hereby incorporated in the Note and the Note is hereby amended
accordingly. Except as amended hereby, all of the terms and provisions of the
Note are hereby ratified and confirmed.
-2-
<PAGE>
IN WITNESS WHEREOF, Borrower has executed and delivered this Allonge,
First Amendment To Note as of the __15th___ day of October, 1998.
BORROWER:
Estate of Bob J. Magness
By: /s/ Kim Magness
----------------------------------------
Kim Magness, as successor personal
representative
By: /s/ Gary Magness
----------------------------------------
Gary Magness, as successor personal
representative
BANKERS TRUST COMPANY
By:
----------------------------------------
Name:
Title:
-3-
<PAGE>
STATE OF )
) ss.:
COUNTY OF )
On the _____ day of October, 1998, before me personally came KIM MAGNESS,
to me known to be the individual who executed the foregoing instrument and, who,
being duly sworn by me did depose and say that he is the successor personal
representative of the Estate of Bob J. Magness and that he executed the
foregoing instrument in the name of the Estate of Bob J. Magness and that he had
the authority to sign the same, and acknowledge that he executed the same as the
act and deed of that Estate.
- ---------------------------------
Notary Public
Name:
STATE OF )
) ss.:
COUNTY OF )
On the _____ day of October, 1998, before me personally came GARY MAGNESS,
to me known to be the individual who executed the foregoing instrument and, who,
being duly sworn by me did depose and say that he is the successor personal
representative of the Estate of Bob J. Magness and that he executed the
foregoing instrument in the name of the Estate of Bob J. Magness and that he had
the authority to sign the same, and acknowledge that he executed the same as the
act and deed of that Estate.
- ---------------------------------
Notary Public
Name:
-4-
<PAGE>
AMENDMENT AND CONFIRMATION OF BORROWER SECURITY
AND PLEDGE AGREEMENT
Amendment and Confirmation of Borrower Security and Pledge Agreement
(this "CONFIRMATION") dated as of October __15th___, 1998, by and between the
Estate of Bob J. Magness ("DEBTOR") and Bankers Trust Company ("BANK").
R E C I T A L S
A. Debtor executed and delivered to Bank a Borrower Security and Pledge
Agreement dated February 9, 1998 (the "Pledge Agreement") pursuant to which
Debtor granted a lien on and security interest in the Collateral (as defined
therein) to secure the Obligations (as defined therein). The Obligations
include those owed by Debtor to Bank under a Secured Promissory Note dated
February 9, 1998 (as it may be amended or extended from time to time, the
"Note").
B. Debtor has requested, among other things, that Bank increase the
maximum principal sum which may be borrowed under the Note from $80,000,000 to
$300,000,000, such increase to be evidenced by an Allonge, First Amendment to
Note of even date herewith (the "Allonge").
C. The Pledge Agreement provides that the Obligations include those due
under any amendment to the Note and that the Collateral includes, among other
things, "all cash, securities, shares, certificates, notes, instruments, rights,
receivables and all other property of Debtor now or hereafter in the possession,
custody or control of Bank" including those credited to account number 280335 at
Bank and those described on Schedule B to the Pledge Agreement. However, as a
condition to Bank's agreement to increase the principal amount of the Note and
to make certain other modifications as set forth in the Allonge, Bank desires
that Debtor, among other things, confirm and ratify the pledge to Bank of
certain securities being delivered to Bank on or about the date hereof and more
particularly described in Schedule A hereto and that Debtor also confirm that
the Pledge Agreement secures the Note as modified by the Allonge.
NOW, THEREFORE, in order to induce Bank to increase the principal sum
available under the Note, and to agree to the other modifications set forth in
the Allonge, Debtor agrees as follows:
1. GRANT. As security for the Obligations (including as increased
pursuant to the Allonge), Debtor hereby ratifies and confirms, and. hereby
restates, Debtor's assignment, pledge and grant to Bank of a continuing security
interest in and lien upon all right, title and interest of Debtor in and to the
Collateral which shall include, without limitation, the securities described on
SCHEDULE A hereto, all as set forth in the Pledge Agreement as amended hereby.
<PAGE>
2. COLLATERAL MAINTENANCE. The Collateral Maintenance Requirements set
forth in Schedule C to the Pledge Agreement are hereby amended so that Debtor
shall be required to pledge additional collateral or repay Obligations if at any
time the Obligations as a percentage of market value of the Collateral are
greater than 60%. Accordingly, the figure "65%" appearing in the third line of
paragraph 1 of said SCHEDULE C is hereby deemed deleted and substituted therefor
is the figure "60%". In addition, for clarity sake, the word "Loan" appearing in
the 5th line of said paragraph is deemed deleted and substituted therefor is the
word "Obligations". Finally, for a release of Collateral to occur under
paragraph 2 of said SCHEDULE C, the Collateral Maintenance Requirement to be
satisfied thereunder is the requirement that the Obligations as a percentage of
market value of the Collateral shall be not greater than 50% after giving effect
to any such release.
3. CERTAIN TERMS. The reference to "$80,000,000" in the preface to the
Pledge Agreement is hereby deemed to be "$300,000,000"; the Obligations shall
include all obligations due to Bank under the Allonge; the Collateral shall
include, without limitation, the collateral described in SCHEDULE A hereto; and
the term Note shall mean the Note as modified by the Allonge and as it may be
further modified or extended.
4. REPRESENTATIONS AND WARRANTIES. All terms, provisions,
representations and warranties set forth in the Pledge Agreement are true and
correct as of the date hereof and shall apply to, and are true and correct with
respect to, the Collateral described on SCHEDULE A hereto including the
representations of Borrower set forth in clauses (e) and (f) of Paragraph 2 of
the Pledge Agreement.
5. NO DEFAULT OR OFFSET. Debtor represents and warrants to Bank that
there is currently no default or Event of Default (as defined in the Note) under
the Note or the Pledge Agreement. Debtor acknowledges and agrees that there are
no offsets, defenses, crossclaims or counterclaims to the Obligations, and to
the extent any such offset, defense, crossclaim or counterclaim exists, same are
hereby irrevocably waived.
<PAGE>
6. RATIFICATION. Except as amended hereby, all of the terms and
provisions of the Pledge Agreement are hereby ratified and confirmed.
IN WITNESS WHEREOF, Pledgor and Bank have executed this Confirmation as
of the day and year first above written.
DEBTOR:
Estate of Bob J. Magness
BANKERS TRUST COMPANY
By: /s/ Kim Magness
By: ----------------------------------------
-------------------------- Kim Magness, as successor personal
Name: representative
Title:
By: /s/ Gary Magness
----------------------------------------
Gary Magness, as successor personal
representative
<PAGE>
STATE OF )
) ss.:
COUNTY OF )
On the _____ day of October, 1998, before me personally came KIM
MAGNESS, to me known to be the individual who executed the foregoing instrument
and, who, being duly sworn by me did depose and say that he is the successor
personal representative of the Estate of Bob J. Magness and that he executed the
foregoing instrument in the name of the Estate of Bob J. Magness and that he had
the authority to sign the same, and acknowledge that he executed the same as the
act and deed of that Estate.
- -----------------------------
Notary Public
Name:
STATE OF )
) ss.:
COUNTY OF )
On the _____ day of October, 1998, before me personally came GARY
MAGNESS, to me known to be the individual who executed the foregoing instrument
and, who, being duly sworn by me did depose and say that he is the successor
personal representative of the Estate of Bob J. Magness and that he executed the
foregoing instrument in the name of the Estate of Bob J. Magness and that he had
the authority to sign the same, and acknowledge that he executed the same as the
act and deed of that Estate.
- -----------------------------
Notary Public
Name:
<PAGE>
SCHEDULE A
AMENDMENT AND CONFIRMATION OF
BORROWER SECURITY AND PLEDGE AGREEMENT
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------- --------------- --------------
NAME OF SERIES CERTIFICATE NO. OF
NO. SHARES
- -------------------------------------------------------------------------------------- --------------- --------------
<S> <C> <C>
Tele-Communications, Inc. Series B TCI Group Common Stock TB6627 154,200
- -------------------------------------------------------------------------------------- --------------- --------------
Tele-Communications, Inc. Series B TCI Group Common Stock TB6646 500,000
- -------------------------------------------------------------------------------------- --------------- --------------
Tele-Communications, Inc. Series B TCI Group Common Stock TB6647 500,000
- -------------------------------------------------------------------------------------- --------------- --------------
Tele-Communications, Inc. Series B TCI Group Common Stock TB6648 500,000
- -------------------------------------------------------------------------------------- --------------- --------------
Tele-Communications, Inc. Series B TCI Group Common Stock TB6649 500,000
- -------------------------------------------------------------------------------------- --------------- --------------
Tele-Communications, Inc. Series B TCI Group Common Stock TB6650 500,000
- -------------------------------------------------------------------------------------- --------------- --------------
Tele-Communications, Inc. Series B TCI Group Common Stock TB6651 500,000
- -------------------------------------------------------------------------------------- --------------- --------------
Tele-Communications, Inc. Series B TCI Group Common Stock TB6652 500,000
- -------------------------------------------------------------------------------------- --------------- --------------
Tele-Communications, Inc. Series B TCI Group Common Stock TB6653 500,000
- -------------------------------------------------------------------------------------- --------------- --------------
Tele-Communications, Inc. Series B TCI Group Common Stock TB6654 500,000
- -------------------------------------------------------------------------------------- --------------- --------------
Tele-Communications, Inc. Series B TCI Group Common Stock TB6655 500,000
- -------------------------------------------------------------------------------------- --------------- --------------
Tele-Communications, Inc. Series B TCI Group Common Stock TB6656 500,000
- -------------------------------------------------------------------------------------- --------------- --------------
Tele-Communications, Inc. Series B TCI Group Common Stock TB6657 500,000
- -------------------------------------------------------------------------------------- --------------- --------------
Tele-Communications, Inc. Series B TCI Group Common Stock TB6658 500,000
- -------------------------------------------------------------------------------------- --------------- --------------
Tele-Communications, Inc. Series B TCI Group Common Stock TB6659 500,000
- -------------------------------------------------------------------------------------- --------------- --------------
Tele-Communications, Inc. Series B TCI Group Common Stock TB6660 500,000
- -------------------------------------------------------------------------------------- --------------- --------------
Tele-Communications, Inc. Series B TCI Group Common Stock TB6661 500,000
- -------------------------------------------------------------------------------------- --------------- --------------
Tele-Communications, Inc. Series B TCI Group Common Stock TB6662 250,000
- -------------------------------------------------------------------------------------- --------------- --------------
Tele-Communications, Inc. Series B TCI Group Common Stock TB6663 250,000
- -------------------------------------------------------------------------------------- --------------- --------------
Tele-Communications, Inc. Series B TCI Group Common Stock TB6664 250,000
- -------------------------------------------------------------------------------------- --------------- --------------
Tele-Communications, Inc. Series B TCI Group Common Stock TB6665 250,000
- -------------------------------------------------------------------------------------- --------------- --------------
Tele-Communications, Inc. Series B TCI Group Common Stock TB6666 100,000
- -------------------------------------------------------------------------------------- --------------- --------------
Tele-Communications, Inc. Series B TCI Group Common Stock TB6667 100,000
- -------------------------------------------------------------------------------------- --------------- --------------
Tele-Communications, Inc. Series B TCI Group Common Stock TB6668 100,000
- -------------------------------------------------------------------------------------- --------------- --------------
Tele-Communications, Inc. Series B TCI Group Common Stock TB6669 100,000
- -------------------------------------------------------------------------------------- --------------- --------------
Tele-Communications, Inc. Series B TCI Group Common Stock TB6670 100,000
- -------------------------------------------------------------------------------------- --------------- --------------
Tele-Communications, Inc. Series B TCI Group Common Stock TB6671 100,000
- -------------------------------------------------------------------------------------- --------------- --------------
Tele-Communications, Inc. Series B TCI Group Common Stock TB6672 100,000
- -------------------------------------------------------------------------------------- --------------- --------------
Tele-Communications, Inc. Series B TCI Group Common Stock TB6673 100,000
- -------------------------------------------------------------------------------------- --------------- --------------
Tele-Communications, Inc. Series B TCI Group Common Stock TB6674 100,000
- -------------------------------------------------------------------------------------- --------------- --------------
Tele-Communications, Inc. Series B TCI Group Common Stock TB6675 100,000
- -------------------------------------------------------------------------------------- --------------- --------------
Tele-Communications, Inc. Series B TCI Group Common Stock TB6676 17,145
- -------------------------------------------------------------------------------------- --------------- --------------
Tele-Communications, Inc. Series B Liberty Media Group Common Stock LB0917 3,818,231
- -------------------------------------------------------------------------------------- --------------- --------------
Tele-Communications, Inc. Series B Liberty Media Group Common Stock LB0630 914,062
- -------------------------------------------------------------------------------------- --------------- --------------
</TABLE>
