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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15 of the
Securities Exchange Act of 1934
Date of Report: September 21, 1994
Date of Earliest Event Reported: September 13, 1994
TCI COMMUNICATIONS, INC.
(Exact name of Registrant as specified in its Charter)
DELAWARE
(State or other jurisdiction of incorporation)
0-5550 84-0588868
(Commission File Number) (I.R.S. Employer Identification No.)
TERRACE TOWER II
5619 DTC Parkway
Englewood, Colorado 80111-3000
(Address of principal executive offices)
Registrant's telephone number, including area code: (303) 267-5500
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ITEM 5. OTHER EVENTS.
Pursuant to a registration statement on Form S-3 (File No.
33-60982) (the "Registration Statement") filed with the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933, as amended (the
"Act"), and declared effective by the Commission on July 26, 1993, the
Registrant has registered its senior, senior subordinated and subordinated debt
securities (the "Debt Securities"), and certain other securities of the
Company, for delayed or continuous offering to the public pursuant to Rule 415
under the Act for a maximum aggregate initial offering price of $3 billion (or
the equivalent thereof denominated in one or more foreign currencies, foreign
currency units or composite currencies). Reference is made to the Registration
Statement for further information concerning the terms of the Debt Securities
registered pursuant to the Registration Statement and the offering thereof.
On September 14, 1994, an underwriting agreement (the
"Underwriting Agreement"), substantially in the form of Exhibit 1.1 to the
Registration Statement, was executed by Morgan Stanley & Co. Incorporated, CS
First Boston Corporation, Lehman Brothers, Inc. and Merrill Lynch & Co.,
Merrill Lynch, Pierce, Fenner & Smith Incorporated, as representatives (the
"Representatives") of the several underwriters named therein (the
"Underwriters") providing for the sale by the Registrant to, and the offering
to the public by, the Underwriters of $300,000,000 principal amount of the
Registrant's 8.65% Senior Notes Due September 15, 2004 (the "Notes") which are
a series of senior Debt Securities. The net proceeds to the Registrant from the
sale of the Notes will be $298,050,000 (plus accrued interest of $432,500 from
September 15, 1994), before deducting expenses of the Registrant. The
Underwriting Agreement is filed as Exhibit 1.1
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hereto. The Registrant has estimated that expenses of $50,000 will be payable
by it in connection with the sale of the Notes.
The Notes will be issued pursuant to an indenture, dated as of
July 26, 1993, in the form filed as Exhibit 4.9 to the Company's Current Report
on Form 8-K, dated July 26, 1993 (the "Original Senior Indenture"), as amended
and supplemented by a First Supplemental Indenture, dated as of September 13,
1994 (the "Supplemental Indenture" and, together with the Original Indenture,
the "Indenture"), between the Company and Shawmut Bank Connecticut, National
Association, as Trustee. (The Supplemental Indenture is filed as Exhibit 4.1
hereto.) The description of certain provisions of the Indenture and the Notes
and information concerning the terms of their purchase and offering to the
public by the Underwriters, are incorporated herein by reference (i) to the
section entitled "Description of Debt Securities -- Senior Debt Securities" of
the Prospectus, dated September 14, 1994 (the "Prospectus"), and (ii) to the
sections entitled "Description of Notes" and "Underwriting" in the Prospectus
Supplement thereto, dated September 14, 1994 (the "Prospectus Supplement"),
each of which has been filed with the Commission pursuant to Rule 424(b) under
the Act. The form of Note is filed as Exhibit 4.2 hereto.
Pursuant to Item 601(a) a Regulation S-K promulgated by the
Commission ("Regulation S-K"), the Registrant filed as Exhibit 5 to the
Registration Statement an opinion, dated May 24, 1993, rendered to the
Registrant by Baker & Botts, L.L.P., counsel to the Registrant, as to the
matters referred to in Item 601(b)(5)(i) of Regulation S-K with respect to the
Debt Securities generally. On September 21, 1994, Baker & Botts, L.L.P.
rendered to the Registrant an opinion (the "Opinion") as to such matters
specifically relating to the Notes. A
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copy of the opinion is filed as Exhibit 5.1 hereto and includes the consent of
Baker & Botts, L.L.P. (the "Consent") to the reference to its name in the
Prospectus Supplement.
The Registrant is filing this Current Report on Form 8-K in
order to cause the Underwriting Agreement, the Supplemental Indenture, the form
of Note, the Opinion and the Consent to be incorporated into the Registration
Statement by reference. By filing this Current Report on Form 8-K, however,
the Registrant does not believe that any of the Underwriting Agreement, the
Supplemental Indenture, the form of Note, the opinion, the Consent or the
information set forth herein represent, either individually or in the
aggregate, a "fundamental change" (as such term is used in Item 512(a)(1)(ii)
of Regulation S-K) in the information set forth in the Registration Statement.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS.
Exhibits
--------
1.1 Underwriting Agreement, dated September 14, 1994,
between the Representatives on behalf of the
several Underwriters named in Exhibit B thereto and
the Registrant.
4.1 First Supplemental Indenture, dated as of September
13, 1994, between Shawmut Bank Connecticut,
National Association and the Registrant.
4.2 Form of 8.65% Senior Note due September 15, 2004.
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5.1 Opinion, dated September 21, 1994, of Baker & Botts,
L.L.P., counsel to the Registrant, as to legality of
the 8.65% Senior Notes due September 15, 2004.
24.1 Consent of Baker & Botts, L.L.P. (included in
Exhibit 5.1).
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the Registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
Dated: September 21, 1994
TCI COMMUNICATIONS, INC.
(Registrant)
By: /s/ Stephen M. Brett
----------------------------------
Name: Stephen M. Brett
Title: Senior Vice President
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EXHIBIT INDEX
Exhibits
--------
1.1 Underwriting Agreement, dated September 14, 1994,
between the Representatives on behalf of the several
Underwriters named in Exhibit B thereto and the
Registrant.
4.1 First Supplemental Indenture, dated as of September
13, 1994, between Shawmut Bank Connecticut, National
Association and the Registrant.
4.2 Form of 8.65% Senior Note due September 15, 2004.
5.1 Opinion, dated September 21, 1994, of Baker & Botts,
L.L.P., counsel to the Registrant, as to legality of
the 8.65% Senior Notes due September 15, 2004.
24.1 Consent of Baker & Botts, L.L.P. (included in Exhibit
5.1).
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Exhibit 1.1
UNDERWRITING AGREEMENT
September 14, 1994
MORGAN STANLEY & CO. INCORPORATED
CS FIRST BOSTON CORPORATION
LEHMAN BROTHERS INC.
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
as Representatives of the several Underwriters
c/o MORGAN STANLEY & CO. INCORPORATED
1251 Avenue of the Americas
New York, New York 10020
Dear Sirs:
TCI Communications, Inc. (the "Company") proposes to issue and sell
$300,000,000 principal amount of its 8.65% Senior Notes due September 15, 2004
(the "Offered Debt Securities") pursuant to an indenture dated as of July 26,
1993 as amended and supplemented by a First Supplemental Indenture dated as of
September 13, 1994 (as the same may be further amended or supplemented, the
"Indenture"), with Shawmut Bank Connecticut, National Association, as trustee
(the "Trustee"). Each Offered Debt Security will be issuable in the
denominations and shall have the terms set forth in Exhibit A. The term
"Underwriters" as used herein will mean and refer collectively to you and to the
other several Underwriters named in Exhibit B (and any substitute underwriter
pursuant to Section 9 hereof), the term "Underwriter" will refer to any of the
several Underwriters named in Exhibit B (and any substitute underwriter pursuant
to Section 9 hereof), and the term "Representatives" will refer to you in your
capacity as the Representatives of the several Underwriters. Any reference to
you in this Agreement shall be solely in your capacity as Representatives. The
Company confirms as follows its agreement with you and the Underwriters.
1. Registration Statement and Prospectus: The Company has filed with the
Securities and Exchange Commission (the "Commission"), in accordance with the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission promulgated thereunder (collectively called the "Act"), a shelf
registration statement on Form S-3 (File No. 33-60982), including a prospectus,
relating to debt securities of the Company (the "Debt Securities") issuable from
time to time in one or more series, including the Offered Debt Securities, Class
A Common Stock Warrants of the Company issuable from time to time in one or more
series, and shares of Class A Common Stock, $1.00 par value per share, of the
Company (the "Common Stock") issuable from time to time upon conversion of
convertible Debt Securities or exercise of Class A Common Stock Warrants, which
has become effective under the Act, and will promptly file with the Commission a
prospectus supplement specifically relating to the Offered Debt Securities
pursuant to Rule 424 under the Act. As used in this Agreement, the term
"Registration Statement" means such registration statement, including exhibits
and financial statements and schedules and documents incorporated by reference
therein, as amended or supplemented to the date hereof and, in the case of
references to the Registration Statement as of a date subsequent to the date
hereof, as amended or supplemented as of such date. The term "Basic Prospectus"
means the prospectus dated September 14, 1994 as filed with the Commission
pursuant to Rule 424 under the Act. The term "Prospectus" means the Basic
Prospectus together with the prospectus supplement specifically relating to the
Offered Debt Securities as filed with the Commission pursuant to Rule 424 under
the Act. The term "preliminary prospectus" means any preliminary prospectus
supplement specifically relating to the Offered Debt Securities together with
the Basic Prospectus. Any reference herein to any preliminary prospectus or the
Prospectus shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the Act, as of the date
of such preliminary prospectus or the Prospectus, as the case may be, and any
reference herein to any amendment or supplement to any preliminary prospectus or
the Prospectus, except the reference in Section 4(c), shall be deemed to refer
to and include any documents filed after such date under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), and so incorporated by reference.
2. Agreements to Sell and Purchase: The Company agrees to sell to the
Underwriters, and upon the basis of the representations, warranties and
agreements of the Company herein contained and subject to the
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terms and conditions of this Agreement the Underwriters agree to purchase from
the Company, severally and not jointly, the principal amount of Offered Debt
Securities set forth opposite each Underwriter's respective name in Exhibit B,
at a purchase price of 99.350% of the principal amount of the Offered Debt
Securities, plus accrued interest, if any, from September 15, 1994. The
obligations of the several Underwriters to purchase Offered Debt Securities
pursuant to this Agreement are hereinafter called their "underwriting
obligations".
With respect to any of the Offered Debt Securities purchased by an
Underwriter hereunder that such Underwriter continues to own or hold at any time
on or after the 90th day following the Closing Date (as defined in Section 3),
such Underwriter agrees that upon receipt of written notice by the
Representatives from the Company of the Company's intention to bid for or
purchase any Offered Debt Security or any security of the same class and series
as the Offered Debt Securities or to take any other action, directly or
indirectly, the taking of which would be proscribed by Rule 10b-6 promulgated by
the Commission under the Exchange Act (or any successor or equivalent rule or
regulation) during the distribution of the Offered Debt Securities, such
Underwriter will, and will cause its "affiliated purchasers" (as defined in said
Rule) to, cease distributing the Offered Debt Securities for such period of time
as the Company may deem necessary so that the action or actions proposed to be
taken, directly or indirectly, by it may be taken in full compliance with such
Rule (or any successor or equivalent rule or regulation).
3. Delivery and Payment: Delivery of and payment for the Offered Debt
Securities shall be made at 10:00 A.M., New York time, on September 21, 1994
(such time and date are referred to herein as the "Closing Date"), at the office
of Baker & Botts, L.L.P., 885 Third Avenue, Suite 1900, New York, New York. The
Closing Date and the place of delivery of and payment for the Offered Debt
Securities may be varied by agreement between you and the Company.
Delivery of the Offered Debt Securities (in definitive form and registered
in such names and in such authorized denominations as you shall request at least
two business days prior to the Closing Date by written notice to the Company)
shall be made to you for the account of the respective Underwriters against
payment by you on behalf of the respective Underwriters of the purchase price
therefor by cashier or official bank check or checks payable to the order of the
Company in New York Clearing House (next day) funds. For the purpose of
expediting the checking and packaging of the Offered Debt Securities, the
Company agrees to make the Offered Debt Securities available to you for
inspection at least 24 hours prior to the Closing Date or such shorter period of
time as you may agree to.
4. Agreements of the Company: The Company agrees with you as follows:
(a) The Company will notify you promptly, and (if requested by you in
writing) will confirm such advice in writing, (1) of the effectiveness of
any amendment to the Registration Statement and of the filing of any
supplement to the Prospectus, (2) of any comments of the Commission
regarding the Registration Statement or the Prospectus (or any of the
documents incorporated by reference therein) or of any request by the
Commission for amendments or supplements to the Registration Statement or
the Prospectus or for additional information, (3) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the initiation or threatening of any proceedings
for that purpose, (4) of the receipt by the Company of any notification
with respect to the suspension of the qualification of the Offered Debt
Securities for offer or sale in any jurisdiction or the initiation or
threatening of any proceedings for such purpose and (5) of the happening of
any event during the period mentioned in paragraph (d) below which makes
any statement of a material fact made in the Registration Statement or the
Prospectus (as theretofore amended or supplemented) untrue or which
requires the making of any changes in the Registration Statement or the
Prospectus (as theretofore amended or supplemented) in order to make the
statements therein, in light of the circumstances when the Prospectus is
delivered to a purchaser, not misleading. The Company will use its
reasonable best efforts to prevent the issuance of any order suspending the
effectiveness of the Registration Statement or suspending the qualification
of the Offered Debt Securities for offer or sale in any jurisdiction, and
if any
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such order is issued, the Company will make every reasonable effort to
obtain the withdrawal of such order at the earliest possible moment.
(b) The Company will furnish to each of you, without charge, one
conformed copy of the Registration Statement and any post-effective
amendment thereto, including all financial statements and schedules,
exhibits and documents incorporated therein by reference (including
exhibits incorporated therein by reference to the extent not previously
furnished to you) and will deliver to you for delivery to each Underwriter
the number of conformed copies of the Registration Statement and any
post-effective amendment thereto, excluding exhibits, as you may request.
(c) The Company will give you advance notice of its intention to file
any amendment or supplement to the Registration Statement or the Prospectus
with respect to the Offered Debt Securities, and will not file any such
amendment or supplement to which you shall reasonably object in writing.
(d) During the period of time that the Prospectus is required by law
to be delivered, the Company will deliver to you for delivery to each
Underwriter, without charge, as many copies of the Prospectus or any
amendment or supplement thereto as you may reasonably request on behalf of
the Underwriters. The Company consents to the use of the Prospectus or any
amendment or supplement thereto by the Underwriters and by all dealers to
whom the Offered Debt Securities may be sold, both in connection with the
offering or sale of the Offered Debt Securities and for such period of time
thereafter as the Prospectus is required by law to be delivered in
connection therewith. If during such period of time any event shall occur
which in the judgment of the Company should be set forth (or incorporated
by reference) in the Prospectus in order to make the statements therein, in
light of the circumstances when the Prospectus is delivered to a purchaser,
not misleading, or if it is necessary to supplement or amend the Prospectus
to comply with law, the Company will forthwith prepare and duly file with
the Commission an appropriate supplement or amendment thereto, and
forthwith file all reports and any definitive proxy statement or
information statement required to be filed by the Company with the
Commission pursuant to Section 13 or 14 of the Exchange Act subsequent to
the date of the Prospectus, and will deliver to you, without charge, such
number of copies thereof as you may reasonably request on behalf of the
Underwriters. If during such period of time any event shall occur which in
your judgment should be so set forth (or incorporated by reference) in the
Prospectus, or which in your judgment makes it necessary to so supplement
or amend the Prospectus, the Company will consult with you concerning the
necessity of filing with the Commission a supplement or an amendment to the
Prospectus or a report pursuant to Section 13 or 14 of the Exchange Act.
(e) Prior to any public offering of the Offered Debt Securities by the
Underwriters, the Company will cooperate with you and counsel retained by
you on behalf of the Underwriters in connection with the registration or
qualification of the Offered Debt Securities for offer and sale under the
securities or Blue Sky laws of, and the determination of the eligibility of
the Offered Debt Securities for investment under the laws of, such
jurisdictions as you request; provided, that in no event shall the Company
be obligated to qualify to do business as a foreign corporation or as a
securities dealer in any jurisdiction where it is not now so qualified, to
conform its capitalization or the composition of its assets to the
securities or Blue Sky laws of any jurisdiction or to take any action which
would subject it to taxation or general service of process in any
jurisdiction where it is not now so subject. The Company will pay all
reasonable fees and expenses (including reasonable counsel fees and
expenses) relating to qualification of the Offered Debt Securities under
such securities or Blue Sky laws and in connection with the determination
of the eligibility of the Offered Debt Securities for investment under the
laws of such jurisdictions as you may designate.
(f) The Company will make generally available to its security holders
and to you and to each Underwriter who may request the same consolidated
earnings statements (which need not be audited) that satisfy the provisions
of Section 11(a) of the Act and Rule 158 thereunder.
(g) The Company will pay all expenses in connection with (1) the
preparation, printing and filing of the Registration Statement, any
preliminary prospectus, the Prospectus, any legal investment memorandum and
Blue Sky memorandum as contemplated by Section 4(e), (2) the preparation,
issuance and delivery of the Offered Debt Securities (other than transfer
taxes) and the execution and
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delivery of the Indenture, (3) the printing of any Dealer Agreement, (4)
furnishing such copies of the Registration Statement, the Prospectus and
any preliminary prospectus, and all amendments and supplements thereto, as
may be requested for use in connection with the offering and sale of the
Offered Debt Securities by dealers to whom Offered Debt Securities may be
sold, and (5) any fees paid to rating agencies, if any, selected by the
Company in connection with the rating of the Offered Debt Securities.
(h) If this Agreement is terminated by you because any condition to
the obligations of you and the Underwriters set forth in Section 7 hereof
is not satisfied or because of any failure or refusal on the part of the
Company to comply with the terms hereof or if for any reason the Company
shall be unable to perform its obligations hereunder, the Company will
reimburse you on behalf of the Underwriters for all out-of-pocket expenses
(including the fees and expenses of counsel retained by you on behalf of
the Underwriters) reasonably incurred by you in connection herewith. The
Company will not in any event be liable to you or any of the Underwriters
for damages on account of loss of anticipated profits.
(i) From the date hereof to and including the Closing Date, the
Company will not offer or sell, or contract to sell, any debt securities of
the Company with a maturity of more than one year, including additional
Offered Debt Securities, pursuant to a public offering without your prior
written consent.
5. Representations and Warranties of the Company: The Company represents
and warrants to each Underwriter that:
(a) the documents incorporated by reference in the Registration
Statement and the Prospectus, when they were filed (or, if an amendment
with respect to any such document was filed, when such amendment was filed)
with the Commission, conformed in all material respects to the requirements
of the Exchange Act and the rules and regulations of the Commission
promulgated thereunder, and any further documents so filed and incorporated
by reference will, when they are filed with the Commission, conform in all
material respects to the requirements of the Exchange Act and the rules and
regulations of the Commission promulgated thereunder; none of such
documents, when it was filed (or, if an amendment with respect to any such
document was filed, when such amendment was filed), contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading; and no
such further document, when it is filed, will contain an untrue statement
of a material fact or will omit to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they are made, not misleading;
(b) the Registration Statement, when declared effective by the
Commission, complied in all material respects with the requirements of the
Act; each preliminary prospectus, if any, relating to the Offered Debt
Securities, filed pursuant to Rule 424 under the Act, will comply when so
filed in all material respects with the Act; and when the Prospectus is
first filed with the Commission pursuant to Rule 424 and as of the Closing
Date, the Registration Statement and the Prospectus (as amended or
supplemented, if applicable) will comply in all material respects with the
requirements of the Act and the Indenture will comply in all material
respects with the requirements of the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"). When it was declared effective by the
Commission, the Registration Statement did not, and as of the date the
Prospectus is first filed with the Commission pursuant to Rule 424 and as
of the Closing Date the Registration Statement (as amended or supplemented,
if applicable) will not, contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading. When the Prospectus is first
filed with the Commission pursuant to Rule 424 and as of the Closing Date,
the Prospectus (as amended or supplemented, if applicable) will not contain
an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading.
Notwithstanding the foregoing, this representation and warranty does not
apply to statements or omissions in the Registration Statement or the
Prospectus or any preliminary prospectus made in reliance upon information
furnished to the Company in writing by the Underwriters through the
Representatives expressly for use therein or to that part of the
Registration Statement which consists of the Statements of Eligibility and
Qualification on Form T-1 under the Trust Indenture Act of the trustees for
the Debt Securities;
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(c) the Offered Debt Securities and the Indenture have been duly
authorized by the Company and will conform to the descriptions thereof in
the Prospectus;
(d) the issuance and sale of the Offered Debt Securities and the
fulfillment of the terms of this Agreement will not result in a breach of
any of the terms or provisions of, or constitute a default under, the
Company's charter or by-laws or any indenture, mortgage, deed of trust or
other material agreement or instrument to which the Company or any of its
significant subsidiaries (as such term is defined in Rule 1.02(v) of
Regulation S-X) is now a party or by which it is bound, or any order of any
court or governmental agency or authority entered in any proceeding to
which the Company or any of its significant subsidiaries was or is now a
party or by which it is bound;
(e) KPMG Peat Marwick LLP, the Company's auditors, are independent
accountants as required by the Act;
(f) so long as may be required for the distribution of the Offered
Debt Securities by any Underwriter or by any dealers that participate in
the distribution thereof, the Company will comply with all requirements
under the Exchange Act relating to the timely filing with the Commission of
its reports pursuant to Section 13 of the Exchange Act and of its proxy
statements pursuant to Section 14 of the Exchange Act; and
(g) except to the extent set forth in the Prospectus, the Company has
not received any notice of, nor does it have any actual knowledge of, any
failure by it or any of its significant subsidiaries to be in substantial
compliance with all existing statutes and regulations applicable to it or
such subsidiaries, which failure would materially and adversely affect the
conduct of the business of the Company and its subsidiaries, considered as
a whole.
6. Indemnification: The Company agrees to indemnify and hold harmless
each Underwriter, and each person, if any, who controls each Underwriter within
the meaning of either Section 15 of the Act or Section 20 of the Exchange Act,
from and against any and all losses, claims, damages, liabilities and expenses
(including reasonable costs of investigation) arising out of or based upon any
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus or in any amendment or supplement
thereto or in any preliminary prospectus, or arising out of or based upon any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, except insofar as such
losses, claims, damages, liabilities or expenses arise out of or are based upon
any such untrue statement or omission or allegation thereof based upon
information furnished in writing to the Company by an Underwriter through the
Representatives expressly for use therein; provided, however, the Company shall
not indemnify an Underwriter or any person who controls such Underwriter from
any such losses, claims, damages or liabilities alleged by any person who
purchased Offered Debt Securities from such Underwriter if the untrue statement,
omission or allegation thereof upon which such losses, claims, damages or
liabilities are based was made in: (i) any preliminary prospectus, if a copy of
the Prospectus (as then amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) was not sent or given by or on
behalf of such Underwriter to such person at or prior to the written
confirmation of the sale of Offered Debt Securities to such person, and if the
Prospectus (as so amended or supplemented) corrected the untrue statement or
omission giving rise to such loss, claim, damage or liability; (ii) any
Prospectus used by such Underwriter or any person who controls such Underwriter,
after such time as the Company advised the Representatives that the filing of a
post-effective amendment or supplement thereto was required, except the
Prospectus as so amended or supplemented; or (iii) any Prospectus used after
such time as the obligation of the Company to keep the same current and
effective has expired. This indemnity will be in addition to any liability which
the Company may otherwise have. All fees and expenses which are reimbursable
pursuant to this Section 6 shall be reimbursed as they are incurred.
If any action or proceeding (including any governmental investigation)
shall be brought or asserted against an Underwriter or any person controlling an
Underwriter in respect of which indemnity may be sought from the Company, such
Underwriter or such controlling person shall promptly notify the Company in
writing, and the Company shall assume the defense thereof, including the
employment of counsel reasonably satisfactory to you and the payment of all
expenses. Any omission so to notify the Company shall not,
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however, relieve the Company from any liability which it may have to any
indemnified party otherwise than under this Section 6. An Underwriter or any
person controlling an Underwriter shall have the right to employ separate
counsel in any such action or proceeding and to participate in the defense
thereof, but the fees and expenses of such separate counsel shall be such
Underwriter's expense or the expense of such controlling person unless (a) the
Company has agreed to pay such fees and expenses or (b) the Company shall have
failed to assume the defense of such action or proceeding and employ counsel
reasonably satisfactory to you in any such action or proceeding or (c) the named
parties to any such action or proceeding (including any impleaded parties)
include both such Underwriter or such controlling person and the Company, and
such Underwriter or such controlling person shall have been advised by your
counsel that there may be a conflict of interest between such Underwriter or
such controlling person and the Company in the conduct of the defense of such
action (in which case, if such Underwriter or such controlling person notifies
the Company in writing that it elects to employ separate counsel at the expense
of the Company, the Company shall not have the right to assume the defense of
such action or proceeding on behalf of such Underwriter or such controlling
person), it being understood, however, that the Company shall not, in connection
with any one such action or proceeding or separate but substantially similar or
related actions or proceedings arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of more than one
separate firm of attorneys (unless the members of such firm are not admitted to
practice in a jurisdiction where an action is pending, in which case the Company
shall pay the reasonable fees and expenses of one additional firm of attorneys
to act as local counsel in such jurisdiction, provided the services of such
counsel are substantially limited to that of appearing as attorneys of record)
at any time for all indemnified parties, which firm shall be designated in
writing by you. The Company shall not be liable for any settlement of any such
action or proceeding effected without its written consent, but if settled with
its written consent, or if there be a final judgment for the plaintiff in any
such action or proceeding, the Company agrees to indemnify and hold harmless
each Underwriter and any such controlling person from and against any loss or
liability by reason of such settlement or judgment.
Each Underwriter severally agrees to indemnify and hold harmless the
Company, its directors and each of its officers, and each person, if any, who
controls the Company within the meaning of either Section 15 of the Act or
Section 20 of the Exchange Act, to the same extent as the foregoing indemnity
from the Company to each Underwriter, but only with respect to information
furnished in writing by such Underwriter through the Representatives expressly
for use in the Registration Statement, the Prospectus, or any amendment or
supplement thereto, or any preliminary prospectus. In case any action or
proceeding shall be brought against the Company or its directors or officers or
any such controlling person, in respect of which indemnity may be sought against
one or more of the several Underwriters, such Underwriters acting through the
Representatives shall have the rights and duties given to the Company, and the
Company or its directors or officers or such controlling person shall have the
rights and duties given to you and the several Underwriters, by the preceding
paragraph.
If the indemnification provided for in this Section 6 is unavailable to an
indemnified party under the first or third paragraph hereof in respect of any
losses, claims, damages or liabilities referred to therein (other than by reason
of such indemnified party's failure to comply with the first sentence of the
second paragraph of this Section 6), then each applicable indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the amount paid
or payable by such indemnified party as a result of such losses, claims, damages
or liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the
other hand from the offering of the Offered Debt Securities or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company on
the one hand and of the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Underwriters
on the other in connection with the offering of the Offered Debt Securities
shall be deemed to be in the same proportion as the total net proceeds from the
offering of the Offered Debt Securities received by the Company bear to the
total underwriting discounts received by the Underwriters in respect thereof.
The relative fault of the Company on the one hand and of the Underwriters on the
other shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or
6
<PAGE> 7
alleged omission to state a material fact relates to information supplied by the
Company or by the Underwriters through the Representatives and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The amount paid or payable by a party as a
result of the losses, claims, damages and liabilities referred to above shall be
deemed to include, subject to the limitations set forth in the second paragraph
of this Section 6, any legal or other fees or expenses reasonably incurred by
such party in connection with investigating or defending any action or claim.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 6 were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 6, the Underwriters shall not be
required to contribute any amount in excess of the amount by which the total
price at which the Offered Debt Securities were offered to the public exceeds
the amount of any damages which the Underwriters have otherwise been required to
pay by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
The indemnity and contribution agreements contained in this Section 6 and
the representations and warranties of the Company contained in this Agreement
shall remain operative and in full force and effect regardless of (a) any
investigation made by or on behalf of any Underwriter, by or on behalf of any
person controlling any Underwriter or by or on behalf of the Company, (b)
acceptance of any of the Offered Debt Securities and payment therefor or (c) any
termination of this Agreement.
7. Conditions of the Obligations of You and the Underwriters: The
obligations of you and the Underwriters hereunder are subject to the following
conditions:
(a) at the Closing Date, (i) no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall be pending or threatened by the
Commission; and the Representatives shall have received a certificate,
dated the Closing Date and signed by the Chairman of the Board, the
President, an Executive Vice President or the Senior Vice
President -- Finance and Treasurer of the Company (who may, as to
threatened proceedings, rely upon the best of his information and belief),
to that effect and to the effect set forth in clause (e) of this Section 7,
and (ii) the rating assigned by either Duff & Phelps Credit Rating Co. or
its successor or by Moody's Investors Service, Inc. or its successor to any
debt securities of the Company as of the date of this Agreement shall not
have been lowered since that date;
(b) the Representatives shall have received opinions, dated the
Closing Date and reasonably satisfactory to counsel retained by the
Representatives on behalf of the Underwriters, (A) from Messrs. Baraff,
Koerner, Olender & Hochberg or such other special communications counsel
for the Company as may be reasonably satisfactory to the Representatives,
(B) from the General Counsel of the Company to the following effect and
covering such additional matters as the Representatives may reasonably
request:
(i) the Company and each of its significant subsidiaries is a
corporation duly organized, validly existing and in good standing under
the laws of the jurisdiction of its incorporation and has the corporate
power and authority to carry on its business as described in the
Prospectus (as amended or supplemented, if applicable) and the Company
has the corporate power and authority to execute and deliver and perform
its obligations under this Agreement and to issue and sell the Offered
Debt Securities as contemplated by this Agreement;
(ii) the Company and each of its significant subsidiaries is duly
qualified as a foreign corporation and is in good standing in each
jurisdiction in which the failure to so qualify would, in the aggregate,
have a material adverse effect upon the financial condition, results of
operations, business or properties of the Company and its subsidiaries
taken as a whole;
(iii) all corporate proceedings legally required in connection with
the authorization and issuance of the Offered Debt Securities and the
sale of the Offered Debt Securities by the Company in accordance with
the terms of this Agreement have been taken;
7
<PAGE> 8
(iv) to the best knowledge of such counsel, there is no legal or
governmental proceeding pending or threatened against the Company or any
of its subsidiaries which is required to be disclosed in the Prospectus
(as amended or supplemented, if applicable) and is not so disclosed and
correctly summarized therein;
(v) to the best knowledge of such counsel, there is no contract or
other document known to such counsel of a character required to be
described in the Prospectus (as amended or supplemented, if applicable)
or to be filed as an exhibit to the Registration Statement (or to a
document incorporated by reference therein) that is not described or
filed as required;
(vi) the execution and delivery of this Agreement and the
Indenture, the issuance of the Offered Debt Securities and the
fulfillment of the terms herein and therein contained do not conflict
with, or result in a breach of, or constitute a default under, the
charter or by-laws of the Company or, to the best knowledge of such
counsel, conflict in any material respect with, or result in a material
breach of or constitute a material default under any material agreement,
indenture or other instrument known to such counsel to which the Company
or any of its significant subsidiaries is a party or by which it is
bound, or result in a violation of any law, administrative regulation or
court or governmental decree known to such counsel applicable to the
Company or any of its subsidiaries, except that such counsel need not
express any opinion with respect to (i) matters opined upon by special
communications counsel and Messrs. Sherman & Howard or (ii) the Blue Sky
or securities laws of any jurisdiction; and
(vii) to the best knowledge of such counsel, neither the
Registration Statement nor the Prospectus, as amended or supplemented,
if applicable (except as to the financial statements and schedules and
any other financial and statistical data contained or incorporated by
reference in the Registration Statement or Prospectus, as to which no
opinion need be expressed), contained, as of the date the Prospectus was
first filed with the Commission pursuant to Rule 424, or contains, as of
the Closing Date, any untrue statement of a material fact or omits to
state any material fact required to be stated therein or necessary to
make the statements therein (in the case of the Prospectus as amended or
supplemented, if applicable, in light of the circumstances under which
they were made,) not misleading.
(C) from Messrs. Sherman & Howard, special counsel to the Company, to the
following effect and covering such additional matters as the
Representatives may reasonably request:
(i) the execution and delivery of this Agreement and the Indenture,
the issuance of the Offered Debt Securities and the fulfillment of the
terms herein and therein contained do not, to the best knowledge of such
counsel, result in a material breach of or constitute a material default
under any material agreement for borrowed money known to such counsel to
which the Company or any of its significant subsidiaries is a party or by
which it is bound; and
(ii) the Company is not an "investment company" within the meaning of
the Investment Company Act of 1940, as amended, and is not subject to
regulation under such Act.
and (D) from Baker & Botts, L.L.P., special counsel to the Company, or such
other counsel to the Company as may be reasonably satisfactory to the
Representatives, to the following effect and covering such additional
matters as the Representatives may reasonably request:
(i) this Agreement and the Indenture have been duly authorized,
executed and delivered by the Company; and the Indenture is a legal, valid
and binding agreement of the Company enforceable in accordance with its
terms, except (A) as such enforceability may be limited by bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium and other
laws affecting creditors' rights generally, and (B) that the remedy of
specific performance and injunctive and other forms of equitable relief are
subject to certain equitable defenses and to the discretion of the court
before which any proceeding therefor may be brought;
(ii) the Indenture has been duly qualified under, and complies in all
material respects with the requirements of, the Trust Indenture Act;
8
<PAGE> 9
(iii) the Offered Debt Securities, when executed and authenticated in
accordance with the terms of the Indenture and delivered to and paid for by
the Representatives on behalf of the Underwriters in accordance with this
Agreement, will be legal, valid and binding obligations of the Company
entitled to the benefits of the Indenture and enforceable in accordance
with their terms, except (A) as such enforceability may be limited by
bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium
and other laws affecting creditors' rights generally, and (B) that the
remedy of specific performance and injunctive and other forms of equitable
relief are subject to certain equitable defenses and to the discretion of
the court before which any proceeding therefor may be brought;
(iv) the Registration Statement is effective under the Act and, to the
best knowledge of such counsel, no stop order suspending the effectiveness
of the Registration Statement has been issued and no proceeding for that
purpose is pending or threatened by the Commission; and
(v) the Offered Debt Securities and the Indenture conform in all
material respects as to legal matters to the descriptions thereof in the
Prospectus.
In addition, such counsel shall state that: "The Registration
Statement and the Prospectus, as amended or supplemented, if applicable
(except as to (x) the financial statements and schedules and any other
financial and statistical data contained or incorporated by reference
therein and (y) the documents incorporated or deemed to be incorporated by
reference therein, as to which no opinion is expressed), complied, as of
the date the Prospectus was first filed with the Commission pursuant to
Rule 424, and comply, as of the date hereof, as to form in all material
respects with the requirements of the Act and the rules and regulations of
the Commission under the Act (the "Rules"). In passing upon the form of
such documents, we have necessarily assumed the correctness and
completeness of the statements made or included therein by the Company and
take no responsibility for the accuracy, completeness or fairness of the
statements contained therein except insofar as such statements relate to
the description of the Offered Debt Securities and the Indenture or relate
to us. However, in connection with the preparation of the Registration
Statement and the Prospectus, we had conferences with certain officers and
other representatives of the Company, and our examination of the
Registration Statement and the Prospectus and our discussions in such
conferences did not disclose to us any information (relying as to the
materiality of any such information primarily upon officers and other
representatives of the Company) which gave us reason to believe that either
the Registration Statement or the Prospectus, as amended or supplemented,
if applicable (except as to (x) the financial statements and schedules and
any other financial and statistical data contained or incorporated by
reference in the Registration Statement or Prospectus and (y) the documents
incorporated or deemed to be incorporated by reference therein, as to which
no opinion is expressed), contained, as of the date the Prospectus was
first filed with the Commission pursuant to Rule 424, or contains, as of
the date hereof, any untrue statement of a material fact or omitted or
omits to state any material fact required to be stated therein or necessary
to make the statements therein (in the case of the Prospectus, as amended,
or supplemented, if applicable, in light of the circumstances under which
they were made) not misleading."
In giving such opinions, such counsel may rely (x) as to matters of
fact, to the extent they deem proper, upon certificates of officers of the
Company, public officials and others, and (y) as to matters of law if other
than the United States or Colorado (in the case of Messrs. Sherman & Howard
and General Counsel of the Company) or New York (in the case of Baker &
Botts, L.L.P.), on the opinions of local counsel retained by them or the
Company, provided that such counsel are satisfactory to the Representatives
and counsel retained by the Representatives on behalf of the Underwriters;
(c) the Representatives shall have received on the Closing Date from
Messrs. Brown & Wood, counsel retained by the Representatives on behalf of
the Underwriters, an opinion to the effect set forth in clauses (D)(i) and
(iii) and to the effect that the Registration Statement and the Prospectus,
as amended or supplemented, if applicable, (except as to (x) the financial
statements and schedules and any other financial and statistical data
contained or incorporated by reference therein, and (y) the documents
incorporated or deemed to be incorporated by reference therein, as to which
no opinion need be expressed) comply as to form in all material respects
with the Act. In addition, the Representatives shall have received on the
Closing Date from Messrs. Brown & Wood, or from other counsel acceptable to
the
9
<PAGE> 10
Representatives, an opinion with respect to the Registration Statement and
the Prospectus in the form customarily given by such firm;
(d) on the Closing Date the Representatives shall have received a
letter addressed to the Representatives from KPMG Peat Marwick LLP,
independent auditors for the Company, reasonably satisfactory to the
Representatives;
(e) the representations and warranties of the Company in this
Agreement shall be true and correct on and as of the Closing Date; the
Company shall have complied with all agreements and satisfied all
conditions on its part to be performed or satisfied at or prior to the
Closing Date; and except as reflected in or contemplated by the
Registration Statement and the Prospectus, since the respective dates as of
which information is given in the Registration Statement and the
Prospectus, there shall not have been, at the Closing Date, any material
adverse change in the condition (financial or otherwise), business,
prospects or results of operations of the Company and its subsidiaries,
considered as a whole; and
(f) subsequent to the date of this Agreement, there shall not have
occurred any change, or any development involving a prospective change, in
or affecting particularly the business, prospects or financial affairs of
the Company and its subsidiaries, considered as a whole which, in the
reasonable judgment of the Representatives, is so material and adverse that
it would be impracticable to proceed with the public offering or delivery
of the Offered Debt Securities on the terms and in the manner contemplated
by the Prospectus.
8. Termination of Agreement: The obligation of the Underwriters to
purchase the Offered Debt Securities may be terminated at any time prior to the
Closing Date by notice to the Company from the Representatives, without
liability on the part of the Underwriters to the Company, if, on or prior to
such date, (i) additional material governmental restrictions, not in force and
effect on the date of this Agreement, shall have been imposed upon trading in
securities generally or minimum or maximum prices shall have been generally
established on the New York Stock Exchange or on the American Stock Exchange, or
trading in securities generally shall have been suspended on either such
Exchange or trading in the common stock or debt securities of the Company in the
over-the-counter market shall have been suspended or a general banking
moratorium shall have been established by Federal or New York authorities, or
(ii) a war involving the United States of America or other national calamity
shall have occurred or shall have accelerated to such an extent as to affect
adversely the marketability of the Offered Debt Securities.
9. Default by One or More of the Underwriters. If one or more of the
Underwriters shall fail on the Closing Date to purchase the Offered Debt
Securities that it or they are obligated to purchase hereunder (the "Defaulted
Debt Securities"), the Representatives shall have the right, within 24 hours
thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any substitute underwriters, to purchase all, but not less than
all, of the Defaulted Debt Securities in such amounts as may be approved by the
Representatives and upon the terms herein set forth; if, however, the
Representatives have not completed such arrangements within such 24-hour period,
then:
(a) if the principal amount of Defaulted Debt Securities does not
exceed 10% of the aggregate principal amount of Offered Debt Securities,
the non-defaulting Underwriters shall be obligated to purchase the full
amount thereof in the proportions that their respective underwriting
obligations hereunder bear to the underwriting obligations of all
non-defaulting Underwriters, or
(b) if the principal amount of Defaulted Debt Securities exceeds 10%
of the aggregate principal amount of Offered Debt Securities, the Company
shall be entitled for an additional 24-hour period to find one or more
substitute underwriters satisfactory to the Representatives in their
reasonable discretion to purchase such Defaulted Debt Securities.
In the event of any such default either the Representatives or the Company
shall have the right to postpone the Closing Date for a period not exceeding
seven days in order to effect any required changes in the Registration Statement
or Prospectus or in any other documents or arrangements relating to the purchase
of the Offered Debt Securities.
If the principal amount of Defaulted Debt Securities exceeds 10% of the
aggregate principal amount of Offered Debt Securities, and neither the
Representatives nor the Company make arrangements pursuant to this Section 9
within the period stated for the purchase of the Defaulted Debt Securities, this
Agreement shall
10
<PAGE> 11
terminate without liability on the part of any non-defaulting Underwriter to the
Company except as provided in Section 6.
No action taken pursuant to this Section 9 shall relieve any defaulting
Underwriter from liability in respect of its default.
A substitute underwriter hereunder shall be an Underwriter for all purposes
of this Agreement.
10. Miscellaneous: Notice given pursuant to any of the provisions of this
Agreement shall be in writing and shall be mailed or delivered (a) to the
Company at its office, Terrace Tower II, 5619 DTC Parkway, Englewood, Colorado
80111-3000, attention: Donne F. Fisher, Executive Vice President (Principal
Financial Officer), or (b) to you at Morgan Stanley & Co. Incorporated, 1221
Avenue of the Americas, 4th Floor, New York, New York 10020, attention:
Director, Debt Syndicate. Any notice under Section 8 hereof may be made by telex
or telephone, but if so made shall be subsequently confirmed in writing.
This Agreement has been and is made solely for the benefit of the
Underwriters and the Company and of the controlling persons, directors and
officers referred to in Section 6 hereof, and their respective successors and
assigns, and no other person shall acquire or have any right under or by virtue
of this Agreement. The term "successors and assigns" as used in this Agreement
shall not include a purchaser, as such purchaser, of
Offered Debt Securities from any Underwriter.
This Agreement shall be governed by and construed in accordance with the
internal laws of the State of New York.
11
<PAGE> 12
Please confirm that the foregoing correctly sets forth the agreement
between the Company and you and the Underwriters.
Very truly yours,
TCI COMMUNICATIONS, INC.
By:________________________________
Senior Vice President-Finance and
Treasurer
Confirmed as of the date
first above mentioned.
MORGAN STANLEY & CO.
INCORPORATED
CS FIRST BOSTON CORPORATION
LEHMAN BROTHERS INC.
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: MORGAN STANLEY & CO. INCORPORATED
By:__________________________________
Title:
Each acting on behalf of
itself and together as the
Representatives of the Underwriters
named in Exhibit B hereto.
12
<PAGE> 13
EXHIBIT A
DEBT SECURITIES
OFFERED DEBT SECURITIES:
________________________
Designation: Senior
Dated Date: September 15, 1994
Maturity: September 15, 2004
Authorized Denominations: $1,000 principal amount and any integral multiple
thereof
Interest rate: 8.65%
Interest Payment Dates: March 15 and September 15, commencing March 15, 1995
Record Dates: September 1 and March 1
Sinking Fund: None
Optional Redemption: None
A-1
<PAGE> 14
EXHIBIT B
<TABLE>
<CAPTION>
PRINCIPAL AMOUNT
UNDERWRITER OF OFFERED DEBT SECURITIES
__________________________
<S> <C>
Morgan Stanley & Co. Incorporated....................................... $ 68,250,000
CS First Boston Corporation............................................. 68,250,000
Lehman Brothers Inc. ................................................... 68,250,000
Merrill Lynch, Pierce, Fenner & Smith
Incorporated................................................ 68,250,000
Bear, Stearns & Co. Inc................................................. 9,000,000
Salomon Brothers Inc ................................................... 9,000,000
Smith Barney Inc. ...................................................... 9,000,000
------------
Total...................................................... $300,000,000
============
</TABLE>
B-1
<PAGE> 1
Exhibit 4.1
TCI COMMUNICATIONS, INC.
AND
SHAWMUT BANK CONNECTICUT, NATIONAL ASSOCIATION
TRUSTEE
-----------
FIRST SUPPLEMENTAL INDENTURE
DATED AS OF SEPTEMBER 13, 1994
SUPPLEMENTAL TO INDENTURE
DATED AS OF JULY 26, 1993
-----------
SECURITIES
<PAGE> 2
FIRST SUPPLEMENTAL INDENTURE, dated as of September 13, 1994, between
TCI COMMUNICATIONS, INC., a Delaware corporation (formerly known as
Tele-Communications, Inc. and referred to herein as the "Company") and SHAWMUT
BANK CONNECTICUT, NATIONAL ASSOCIATION, a national banking association duly
organized under the laws of the United States ("Trustee"), as Trustee under the
indenture of the Company (the "Indenture") dated as of July 26, 1993.
On August 4, 1994, the Company and Liberty Media Corporation
("Liberty") each merged (the "Mergers") with separate wholly owned subsidiaries
of TCI/Liberty Holding Company, a new holding company formed by the Company and
Liberty. Under the terms of the respective Mergers, the Company and Liberty
were each the surviving corporations. In connection with the Mergers,
TCI/Liberty Holding Company changed its name to Tele-Communications, Inc. and
the Company changed its name to TCI Communications, Inc. As a result of the
foregoing, each of the Company and Liberty became wholly owned subsidiaries of
Tele-Communications, Inc.
The Indenture provides that the Company and the Trustee may, at any
time and from time to time, enter into one or more supplemental indentures for
the purpose of amending or supplementing the provisions of the Indenture to
make any change that in the opinion of the Board of Directors of the Company
(or any authorized committee thereof) does not materially adversely affect the
rights of any Holder of any Security.
The Company has duly authorized the execution and delivery of this
First Supplemental Indenture, and all things necessary have been done to make
this First Supplemental Indenture a valid and binding agreement of the Company.
For and in consideration of the premises, it is mutually covenanted
and agreed, for the benefit of each party hereto and for the equal and ratable
benefit of the respective Holders from time to time of the Securities or of
series thereof:
ARTICLE I
PROVISIONS OF GENERAL APPLICATION
1.1. DEFINITIONS.
For all purposes of the Indenture and this First Supplemental
Indenture, except as otherwise expressly provided or unless the context
otherwise requires:
(a) the words "herein", "hereof" and "hereunder" and
other words of similar import refer to the Indenture and this First
Supplemental Indenture as a whole and not to any particular Article, Section or
other subdivision; and
(b) certain capitalized terms are used herein as they are
defined in the Indenture.
<PAGE> 3
1.2. EFFECT OF HEADINGS.
The Article and Section headings herein are for convenience only and shall not
affect the construction hereof.
1.3. SUCCESSORS.
All agreements of the Company and the Trustee in this First
Supplemental Indenture and in the Indenture as amended and supplemented hereby
shall bind their respective successors.
1.4. SEPARABILITY CLAUSE.
In case any provision in this First Supplemental Indenture or in the
Indenture as amended and supplemented hereby 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.
1.5. BENEFITS OF FIRST SUPPLEMENTAL INDENTURE.
Nothing in this First 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 First Supplemental Indenture or the Indenture
as amended and supplemented hereby.
1.6. GOVERNING LAW.
This First Supplemental Indenture shall be governed by and construed
in accordance with the internal laws of the State of New York.
1.7. EFFECTIVENESS.
This First Supplemental Indenture shall take effect on the date hereof
and shall amend the provisions of the Indenture with respect to each series of
Securities issued under the Indenture.
1.8. CONCERNING THE TRUSTEE.
The Trustee assumes no duties, responsibilities or liabilities by
reason of this First Supplemental Indenture other than as set forth in the
Indenture. The Trustee assumes no responsibility for the correctness of the
statements herein contained, which shall be taken as statements of the Company.
This First 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 Indenture, as fully as if said terms and conditions were herein set forth
at length.
-2-
<PAGE> 4
ARTICLE II
AMENDMENTS TO THE INDENTURE
2.1. THE PREAMBLE OF THE INDENTURE is hereby amended by deleting
the name "TELE-COMMUNICATIONS, INC." contained in the first sentence thereof
and substituting in lieu thereof the name "TCI COMMUNICATIONS, INC."
2.2. SECTION 1.01 OF THE INDENTURE ("DEFINITIONS") is hereby
amended as provided in clauses (a) and (b) below:
(a) by deleting the following defined terms and the
definitions thereof: "Company", "Change of Control" and "Controlling Person".
(b) by inserting in alphabetical order therein the
following defined terms and definitions thereof:
Change of Control means the occurrence of either of the
following events (to the extent applicable): (A) the acquisition by
any person (other than the Parent, the Company, any subsidiary of the
Parent or the Company, any employee stock ownership or other employee
benefit plan of the Parent or the Company or of any subsidiary of the
Parent or the Company, or any Controlling Person) during any period of
twelve (12) consecutive months of beneficial ownership of shares of
the Common Stock or Class B Stock or both of the Company representing
in the aggregate thirty percent (30%) or more of the combined voting
power of all shares of the Company's Common Stock and Class B Stock,
calculated on a fully diluted basis as of the date immediately prior
to the date of such acquisition (or, if there be more than one
acquisition during such twelve-month period, the date of the last such
acquisition); provided, however, that notwithstanding the foregoing,
no Change of Control shall be deemed to have occurred if and for so
long as the shares of the Common Stock and Class B Stock of the
Company beneficially owned by the Parent, the subsidiaries of the
Parent and the Controlling Persons represent in the aggregate 30% or
more of the combined voting power of all shares of the Company's
Common Stock and Class B Stock calculated on a fully diluted basis, or
(B) for so long as the Company is a subsidiary of the Parent, the
acquisition by any person (other than the Parent, any subsidiary of
the Parent, any employee stock ownership plan or other employee
benefit plan of the Parent or any subsidiary of the Parent, or any
Controlling Person) during any period of twelve (12) consecutive
months of beneficial ownership of shares of the Class A or Class B
Common Stock or both of the Parent representing in the aggregate
thirty percent (30%) or more of the combined voting power of all
shares of the Parent's Class A and Class B Common Stock, calculated on
a fully diluted basis as of the date immediately prior to the date of
such acquisition (or, if there be more than one acquisition during
such twelve-month period, the date of the last such acquisition);
provided, however, that notwithstanding the foregoing no Change of
Control shall be deemed to have occurred if and for so long as the
shares of the Parent's Class A and
-3-
<PAGE> 5
Class B Common stock beneficially owned by the Controlling Persons
represent in the aggregate 30% or more of the combined voting power of
all shares of the Parent's Class A and Class B Common Stock calculated
on a fully diluted basis.
Company means TCI Communications, Inc., a Delaware
corporation, until a successor replaces it pursuant to the applicable
provisions of this Indenture and thereafter means the successor.
Controlling Person means each of (1) the Chairman of the Board
of the Company as of July 26, 1993, (2) the President of the Company
as of July 26, 1993, (3) each of the directors of the Company as of
July 26, 1993, (4) the respective family members, estates and heirs of
each of the persons referred to in clauses (1) through (3) above and
any trust or other investment vehicle for the primary benefit of any
of such persons or their respective family members or heirs, (5)
Kearns-Tribune Corporation, a Delaware corporation or any successor
thereto by merger or consolidation and (6) the trustee under the
Parent's Employee Stock Purchase Plan or any successor plan or any
other employee stock ownership or other employee benefit plan of the
Parent or the Company or of any subsidiary of the Parent or the
Company. As used with respect to any person, the term "family member"
means the spouse, siblings and lineal descendants of such person. The
trustee under the Parent's Employee Stock Purchase Plan or any
successor plan or any other employee stock ownership or other employee
benefit plan of the Parent or the Company or of any subsidiary of the
Parent or the Company shall be deemed to have beneficial ownership of
all shares of common stock of the Parent or the Company held under the
plan, whether or not allocated to or vested in participants' accounts.
Parent means Tele-Communications, Inc., a Delaware
corporation, and any successor thereof.
2.3. SECTION 11.02 OF THE INDENTURE ("NOTICES") is hereby amended
by deleting the address for the Company specified in the first paragraph
thereof and inserting in lieu thereof the following:
"TCI Communications, Inc.
Terrace Tower II
5619 DTC Parkway
Englewood, Colorado 80111-3000
Attention: Bernard W. Schotters,
Senior Vice President-Finance
and Treasurer"
* * * *
-4-
<PAGE> 6
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed as of the day and year first above
written.
TCI COMMUNICATIONS, INC.
By /s/ Bernard W. Schotters
---------------------------------
Senior Vice President-Finance
and Treasurer
Attest:
(SEAL)
/s/ Stephen M. Brett
- - ----------------------------
Secretary
SHAWMUT BANK CONNECTICUT,
NATIONAL ASSOCIATION, as Trustee
By /s/ Robert L. Reynolds
---------------------------------
-5-
<PAGE> 1
Exhibit 4.2
REGISTERED REGISTERED
TCI COMMUNICATIONS, INC.
8.65% SENIOR NOTE DUE SEPTEMBER 15, 2004
CUSIP
TCI COMMUNICATIONS, INC., a Delaware corporation,
promises to pay to
or registered assigns
the principal sum of DOLLARS on September 15, 2004
INTEREST Payment Dates: March 15 and September 15, commencing March 15, 1995.
Record Dates: March 1 and September 1.
DATED:
CERTIFICATE OF AUTHENTICATION: TCI COMMUNICATIONS, INC.
The undersigned certifies that this is one of the BY /s/
Securities of the series designated herein ______________________
referred to in the within-mentioned Indenture. CHAIRMAN OF THE BOARD
SHAWMUT BANK CONNECTICUT, NATIONAL ASSOCIATION,
as Trustee
BY /s/ /s/
__________________________ _____________________
AUTHORIZED OFFICER SECTRETARY
[SEAL]
<PAGE> 2
TCI COMMUNICATIONS, INC.
8.65% SENIOR NOTE DUE SEPTEMBER 15, 2004
1. Interest.
TCI Communications, Inc. (the "Company"), a Delaware corporation,
promises to pay interest on the principal amount of this Note (as defined
below) at the rate per annum shown above. The Company will pay interest
semiannually on March 15 and September 15 of each year, commencing March 15,
1995. Interest on this Note will accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from September 15,
1994. Interest will be computed on the basis of a 360-day year of twelve
30-day months.
2. Method of Payment.
The Company will pay interest on this Note (except defaulted interest)
to the persons who are registered holders of this Note at the close of business
on the first day of the month in which the interest payment date falls.
Holders must surrender Notes to a Paying Agent to collect premium, if any, and
principal payments. The Company will pay principal, premium, if any, and
interest in money of the United States that at the time of payment is legal
tender for payment of public and private debts. The Company may, however, pay
principal, premium, if any, and interest by its check payable in such money.
It may mail an interest check to a holder's registered address.
3. Paying Agent and Registrar.
Initially, Shawmut Bank Connecticut, National Association ("Trustee")
will act as Paying Agent and Registrar and Shawmut Trust Company, at 14 Wall
Street, 8th Floor, Window Number 2, New York, New York, will act as an
additional paying agent and co-Registrar. The Company may change any Paying
Agent, Registrar or co-Registrar without notice. The Company or any of its
Subsidiaries may act as Paying Agent, Registrar or co-Registrar.
4. Indenture.
This Note is one of a duly authorized issue of Securities of the
Company (the "Notes"), issued and to be issued in one or more series under an
Indenture dated as of July 26, 1993, as amended and supplemented by a First
Supplemental Indenture, dated as of September 13, 1994 (the "Indenture")
between the Company and the Trustee. The terms of the Notes include those
stated in the Indenture and those made part of the Indenture by the Trust
Indenture Act of 1939, as amended (15 U.S. Code Sections 77aaa-77bbbb) (the
"Act"). The Notes are subject to all such terms, and Noteholders are referred
to the Indenture and the Act for a statement of them. All terms used in this
Note which are defined in the Indenture shall have the meanings assigned to
them in the Indenture. This Note is one of the series designated on the face
hereof. The Notes of this series are general unsecured obligations of the
Company limited to $300,000,000 in aggregate principal amount.
5. No Redemption.
The Notes may not be redeemed by the Company prior to maturity, and are
not entitled to the benefits of a sinking fund.
6. Change of Control.
In the event that a Change of Control occurs on or before September 15,
2004, and, during the period commencing 90 days prior to public disclosure of
the occurrence of such Change of Control and ending 90 days after such public
disclosure, the rating of the Notes is downgraded to lower than BBB- by Duff &
Phelps Credit Rating Co. ("D&P") or lower than Baa3 by Moody's Investors
Service, Inc. ("Moody's"), and, in the event that such downgrading occurs prior
to such public disclosure, the rating assigned to the Notes by D&P or Moody's
as of the close of business on the date of such public disclosure remains lower
than BBB- or lower than Baa3, respectively, the holder of this Note will have
the right to put all or part of this Note to the Company for purchase at a
purchase price of 100% of the principal amount hereof, plus interest accrued
and unpaid to the date fixed for purchase, upon the terms and conditions
specified in the Indenture.
7. Denominations, Transfer, Exchange.
The Notes are in registered form without coupons in denominations of
$1,000 and integral multiples of $1,000. A holder may transfer or exchange
Notes in accordance with the Indenture. The Registrar may require a holder,
among other things, to furnish appropriate endorsements and transfer documents
and to pay any taxes and fees required by law or permitted by the Indenture.
8. Persons Deemed Owners.
The registered holder of a Note may be treated as the owner of it for
all purposes.
9. Unclaimed Money.
If money for the payment of principal, premium, if any, or interest
remains unclained for two years, the Trustee or Paying Agent will pay the money
back to the Company at its request. After that, holders entitled to the money
must look to the Company for payment unless an abandoned property law
designates another person.
10. Amendment, Supplement, Waiver.
Subject to certain exceptions, the Indenture or the Securities of any
series may be amended or supplemented, and any past default or compliance with
any provision may be waived insofar as the Securities of any series are
concerned, with the consent of the holders of a majority in principal amount of
the outstanding Securities of such series. Without the consent of any
Securityholder, the Company and the Trustee may amend or supplement the
Indenture or the Securities of any series to cure any ambiguity, defect, or
inconsistency or to provide for uncertificated Securities in addition to
certificated Securities or to make certain other specified changes or any
change that does not materially adversely affect the rights of any
Securityholder.
11. Successor Corporation.
When a successor corporation assumes all the obligations of its
predecessor under the Notes and the Indenture, the predecessor corporation will
be released from those obligations.
12. Defaults and Remedies
An Event of Default is: default for 30 days in payment of any interest
on any Note; default in payment of principal or premium, if any, on any Note;
failure by the Company, for 30 days after receipt of notice from the Trustee or
the holders of at least 25% in principal amount of the outstanding Notes, to
comply with any of its other agreements in the Indenture (other than an
agreement which has expressly been included in the Indenture solely for the
benefit of Securities of any series other than this series) or the Notes;
acceleration of Debt of the Company (including Securities of any other series)
representing in excess of five percent (5%) of the aggregate principal amount
of the Company's Funded Debt then outstanding unless, within 30 days after
receipt of notice by the Company from the Trustee or the holders of at least
25% in principal amount of the outstanding Notes, such acceleration has been
rescinded or annulled, such Debt has been paid or the Company shall have
contested such acceleration in good faith and by appropriate proceedings and
have obtained and thereafter maintained a stay of all consequences thereof that
would have a material adverse effect on the Company; and certain events of
bankruptcy or insolvency. If an Event of Default with respect to the Notes
shall occur and be continuing, the principal of, and the premium, if any, and
accrued interest on the Notes may be declared or may become due and payable in
the manner and with the effect provided in the Indenture. In the event of a
declaration of acceleration under the Indenture with respect to the Notes
because an Event of Default has occurred due to the acceleration of Debt of the
Company representing in excess of five percent (5%) of the aggregate principal
amount of the Company's Funded Debt, such declaration of acceleration under the
Indenture shall be automatically annulled if (a) as a result of the contest by
the Company in appropriate proceedings of the acceleration of such Debt such
acceleration is declared void ab initio, or (b) within 90 days of the
declaration of acceleration under the Indenture the declaration of acceleration
of such Debt has been rescinded or annulled in any manner authorized by the
mortgage, Indenture or instrument evidencing or creating such Debt and, in the
case of this clause (b), the annulment of the declaration of acceleration under
the Indenture would not conflict with any judgment or decree, and, in either
case, all other existing Events of Default (other than the non-payment of the
principal of and accrued interest, if any, on Securities of any series that
have become due solely by such acceleration with respect to the Notes have been
cured or waived. Noteholders may not enforce the Indenture or the Notes except
as provided in the Indenture. The Trustee may require indemnity satisfactory
to it before it enforces the Indenture or the Notes. Subject to certain
limitations, holders of a majority in principal amount of the outstanding Notes
of this series may direct the Trustee in its exercise of any trust or power.
The Trustee may withhold from Noteholders notice or any continuing default
(except a default in payment of principal, premium, if any, or interest) if it
determines that withholding notice is in their interests. The Company is
required to file periodic reports with the Trustee as to the absence of
default.
13. Trustee Dealings with Company.
Shawmut Bank Connecticut, National Association, the Trustee under the
Indenture, in its individual or any other capacity, may make loans to, accept
deposits from, and perform services for the Company or its Affiliates, and may
otherwise deal with the Company or its Affiliates, as if it were not Trustee.
14. No Recourse Against Others.
A director, officer, employee, or stockholder, as such, of the Company
or the Trustee shall not have any liability for any obligations of the Company
or the Trustee under the Notes or the Indenture or for any claim based on, in
respect of, or by reason of such obligations or their creation. Each
Noteholder by accepting a Note waives and releases all such liability. The
waiver and release are part of the consideration for the issue of the Note.
15. Authentication.
This Note shall not be valid until the Trustee signs the certificate of
authentication on the other side of this Note.
16. Abbreviations.
Customary abbreviations may be used in the name of a holder of a Note
or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by
the entireties), JT TEN (= joint tenants with right of survivorship and not as
tenants in common), CUST (= custodian) and U/G/M/A (= Uniform Gifts to Minors
Act). Additional abbreviations may be used though not in the above list.
The Company will furnish to any holder of a Note upon written request
and without charge a copy of the Indenture. Requests may be made to: Donna F.
Fisher, Executive Vice President, TCI Communications, Inc., 5619 DTC Parkway,
Englewood, Colorado 80111-3000.
ASSIGNMENT FORM
If you the holder want to assign this Note, fill in the form below and have
your signature guaranteed:
For value received, I or we assign and transfer this Note to
- - ------------------------------------------------------------------------------
- - ------------------------------------------------------------------------------
(Insert assignee's social security or tax ID number)
- - ------------------------------------------------------------------------------
- - ------------------------------------------------------------------------------
- - ------------------------------------------------------------------------------
- - ------------------------------------------------------------------------------
(Print or type assignee's name, address, and zip code)
and irrevocably appoint
- - ------------------------------------------------------------------------------
agent to transfer this Note on the books of the Company. The agent may
substitute another to act for him.
- - ------------------------------------------------------------------------------
Dated: Your Signature:
--------------------- --------------------------------
(Sign exactly as your name
appears on the other side
of this Note.)
Signature Guarantee:
---------------------------
<PAGE> 1
BAKER & BOTTS
AUSTIN L.L.P.
DALLAS 885 THIRD AVENUE TELEPHONE: (212) 705-5000
HOUSTON SUITE 1900 FACSIMILE: (212) 705-5125
WASHINGTON, D.C. NEW YORK, NEW YORK 10022-4834
September 21, 1994
TCI Communications, Inc.
Terrace Tower II
5619 DTC Parkway
Englewood, CO 80111
Gentlemen:
Reference is made to the registration statement on Form S-3 (File No.
33-60982) (the "Registration Statement") filed by TCI Communications, Inc.
(formerly Tele-Communications, Inc.), a Delaware corporation (the "Company"),
in connection with the proposed offering from time to time by the Company of
its senior, senior subordinated or subordinated debt securities (the "Debt
Securities"), and certain other securities of the Company. As described in the
Registration Statement, the Company may, among other Debt Securities, offer
Senior Debt Securities to be issued under an Indenture, dated as of July 26,
1993, as amended and supplemented by a First Supplemental Indenture, dated as
of September 13, 1994 (as so amended and supplemented, the "Indenture"),
between the Company and Shawmut Bank Connecticut, National Association, as
Trustee (the "Trustee").
On September 14, 1994, the Company entered into an underwriting
agreement (the "Underwriting Agreement") with Morgan Stanley & Co.
Incorporated, CS First Boston Corporation, Lehman Brothers Inc. and Merrill
Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated acting on
behalf of the several underwriters named in Exhibit B thereto (collectively,
the "Underwriters") pursuant to which the Company agreed to sell to the
Underwriters, subject to the conditions stated in the Underwriting Agreement,
$300,000,000 aggregate principal amount of a series of the Company's Senior
Debt Securities designated as its "8.65% Senior Notes due September 15, 2004"
(the "Notes"). You have asked us to pass upon for you certain legal matters in
connection with the Notes.
In connection therewith, we have examined, among other things, copies
of the Restated Certificate of Incorporation and By- Laws of the Company, each
as amended; the Underwriting Agreement; the Indenture; copies of records of
proceedings of the Company's Board of Directors, including committees thereof;
and such other documents, records, certificates and questions of law as we
deemed necessary or appropriate for the purpose of this opinion. In rendering
this opinion, we have assumed the authenticity of all documents submitted to us
as originals and the conformity to authentic original documents of all
documents submitted to us as certified,
<PAGE> 2
TCI Communications, Inc.
September 21, 1994
Page 2
conformed or reproduction copies. We have further assumed that the Indenture
and the Underwriting Agreement have been duly and validly authorized, executed
and delivered by, and constitute the valid and binding obligations of, the
parties thereto other than the Company.
Based upon the foregoing, we are of the opinion that:
The Notes have been duly authorized and, when duly executed by the
proper officers of the Company, authenticated and delivered by the Trustee in
accordance with the Indenture and issued and sold to the Underwriters pursuant
to the terms of the Underwriting Agreement, they will be legally issued, valid
and binding obligations of the Company entitled to the benefits of the
Indenture and enforceable in accordance with their terms, except (A) as such
enforceability may be limited by bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium and other laws affecting the rights of
creditors generally, and (B) that equitable remedies may not be available.
We hereby consent to the reference to us under the heading "Validity
of the Notes" in the Prospectus Supplement dated September 14, 1994 to the
Prospectus dated September 14, 1994 forming a part of the Registration
Statement and to the incorporation of this opinion by reference into the
Registration Statement. In giving the foregoing consent, we do not admit that
we are in the category of persons whose consent is required under Section 7 of
the Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission promulgated thereunder.
Certain partners of Baker & Botts, L.L.P. serve as Assistant
Secretaries of the Company.
Very truly yours,
BAKER & BOTTS, L.L.P.
