<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 16, 1995
REGISTRATION NO. 33-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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TCI COMMUNICATIONS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 84-0588868
(STATE OR OTHER JURISDICTION OF (IRS EMPLOYER IDENTIFICATION NO.)
INCORPORATION OR ORGANIZATION)
TERRACE TOWER II
5619 DTC PARKWAY
ENGLEWOOD, COLORADO 80111-3000
(303) 267-5500
(ADDRESS, INCLUDING ZIP CODE AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
STEPHEN M. BRETT, ESQ. COPY TO:
TCI COMMUNICATIONS, INC. ELIZABETH M. MARKOWSKI, ESQ.
TERRACE TOWER II BAKER & BOTTS, L.L.P.
5619 DTC PARKWAY 885 THIRD AVENUE
ENGLEWOOD, COLORADO 80111-3000 NEW YORK, NEW YORK 10022-4834
(303) 267-5500
(NAME, ADDRESS, INCLUDING ZIP CODE,
AND TELEPHONE NUMBER, INCLUDING AREA
CODE, OF AGENT FOR SERVICE)
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this registration statement as determined
by market conditions.
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If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [_]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [X]
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CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
PROPOSED PROPOSED
TITLE OF EACH AGGREGATE MAXIMUM MAXIMUM
CLASS OF AMOUNT AGGREGATE AGGREGATE AMOUNT OF
SECURITIES TO TO BE OFFERING OFFERING REGISTRATION
BE REGISTERED REGISTERED PRICE PER UNIT PRICE(1)(2) FEE
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<S> <C> <C> <C> <C>
Debt Securities (3) (3) $2,000,000,000 $400,000(3)
</TABLE>
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(1) In United States dollars or the equivalent thereof in one or more foreign
currencies, foreign currency units or composite currencies.
(2) Such amount represents the principal amount of any Debt Securities issued
at their principal amount and the issue price rather than the principal
amount of any Debt Securities issued at an original issue discount.
(3) The aggregate amount to be registered and the aggregate offering price per
unit have been omitted pursuant to Securities Act Release No. 6964. The
registration fee has been calculated in accordance with Rule 457(o) under
the Securities Act of 1933.
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THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(a) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(a), MAY DETERMINE.
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<PAGE>
PROSPECTUS
TCI COMMUNICATIONS, INC.
DEBT SECURITIES
TCI Communications, Inc. (the "Company") from time to time may offer its
debentures, notes, bonds or other evidences of indebtedness (the "Debt
Securities") for a maximum aggregate initial offering price of $2 billion (or
the equivalent thereof denominated in one or more foreign currencies, foreign
currency units or composite currencies). The Debt Securities may be offered as
separate series in amounts, at prices and on terms to be determined at the
time of sale and to be set forth in supplements to this Prospectus. The Debt
Securities may be issued in registered form without coupons attached
("Registered Debt Securities"), in bearer form with or without coupons
attached ("Bearer Debt Securities") and in the form of one or more global
securities ("Global Securities"). See "Description of Debt Securities." Bearer
Debt Securities will be offered only to non-United States persons (subject to
certain exceptions) and to branches, located outside the United States, of
certain United States financial institutions. See "Description of Debt
Securities--Limitations on Issuance of Bearer Debt Securities." The Company
may sell Debt Securities on a negotiated or competitive bid basis to or
through underwriters or dealers designated from time to time, and also may
sell Debt Securities directly to other purchasers or through agents designated
from time to time. See "Plan of Distribution."
Certain terms of the Debt Securities in respect of which this Prospectus is
being delivered, including, where applicable, the specific designation
(including whether senior, senior subordinated or subordinated), aggregate
principal amount, maturity (which may be fixed or extendible), interest rate
or rates (which may be fixed or variable), if any, and time of payment of
interest, if any, authorized denominations, currency or currencies in which
principal, premium, if any, and interest are payable, any terms for a sinking
fund or for redemption, purchase or exchange at the option of the Company or
the holder (including the form or method of payment, which may include cash,
Debt Securities of another series or other forms of consideration), any
covenants or events of default that are in addition to or different from those
described herein, the designation and qualification (to the extent not already
designated and qualified and described herein) of any trustee with respect to
the Debt Securities, and any other specific terms of the Debt Securities, will
be set forth in a Prospectus Supplement accompanying this Prospectus (the
"Prospectus Supplement"). Debt Securities may be issued as Original Issue
Discount Securities to be sold at a substantial discount below their principal
amount and, if issued, certain terms thereof will be set forth in the
Prospectus Supplement related thereto. See "Description of Debt Securities."
The Debt Securities in respect of which this Prospectus is being delivered are
hereinafter referred to collectively as the "Offered Securities." The terms of
the offering and sale of the Offered Securities, including, where applicable,
the name or names of any agents, dealers or underwriters to be utilized in
connection with the offer and sale of the Offered Securities, the principal
amount of Debt Securities to be purchased by underwriters, the purchase price
of the Offered Securities and the proceeds to the Company from such sale, any
applicable commissions, discounts or other items constituting compensation of
such agents or underwriters, any initial public offering price and any
discounts or concessions allowed or reallowed or paid to dealers, will also be
set forth in the accompanying Prospectus Supplement. The Company reserves the
sole right to accept and, together with its agents, from time to time, to
reject in whole or in part any proposed purchase of the Offered Securities to
be made directly or through agents. See "Plan of Distribution" for possible
indemnification arrangements for agents, dealers and underwriters.
This Prospectus may not be used to consummate sales of Debt Securities
unless accompanied by the Prospectus Supplement applicable to the Offered
Securities being sold.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
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The date of this Prospectus is , 1995.
<PAGE>
AVAILABLE INFORMATION
The Company has filed with the Securities and Exchange Commission (the
"Commission"), Washington, D.C., a registration statement on Form S-3
(Registration No. 33- ) (together with all amendments and exhibits, referred
to as the "Registration Statement") under the Securities Act of 1933, as
amended (the "Securities Act"), with respect to the Debt Securities. This
Prospectus does not contain all of the information set forth in the
Registration Statement, certain parts of which are omitted in accordance with
the rules and regulations of the Commission. For further information
pertaining to the Company and the Debt Securities offered hereby, reference is
made to the Registration Statement. Statements contained herein concerning the
provisions of any document are not necessarily complete and, in each instance,
reference is made to the copy of such document filed as an exhibit to the
Registration Statement or otherwise filed with the Commission. Each such
statement is qualified in its entirety by such reference.
The Company is subject to the information requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports and other information with the Commission. Reports and
other information filed under the Exchange Act by the Company can be inspected
and copied at the public reference facilities maintained by the Commission at
Judiciary Plaza, Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549,
and at the following Regional Offices of the Commission: 500 West Madison
Street, Suite 1400, Chicago, Illinois 60661; and at 7 World Trade Center,
Suite 1300, New York, New York 10048. Copies of such material can be obtained
from the Public Reference Section of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549.
INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents have been filed with the Commission by the Company
(File No. 0-5550) and are incorporated into this Prospectus by reference and
made a part hereof: (i) the Annual Report on Form 10-K of the Company for the
year ended December 31, 1994, as amended by Form 10K/A (Amendment No. 1); (ii)
the Quarterly Reports on Form 10-Q of the Company for the quarters ended March
31, 1995, June 30, 1995 and September 30, 1995; (iii) the Current Reports on
Form 8-K of the Company dated January 23, 1995, February 3, 1995 (as amended
by Form 8-K/A (Amendment No. 1), April 6, 1995, April 20, 1995 (as amended by
Form 8-K/A (Amendment No. 1), May 4, 1995 (as amended by Form 8-K/A (Amendment
No. 1), July 26, 1995, August 1, 1995 and September 13, 1995; and (iv) the
financial statements and notes thereto of TeleCable Corporation as of December
31, 1993 and 1992 and for each of the years in the two-year period ended
December 31, 1993, included in the Current Report on Form 8-K of the Company
dated August 26, 1994.
All documents filed by the Company with the Commission pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act after the date hereof and prior
to the termination of the offering of the securities offered hereby shall be
deemed to be incorporated herein by reference and to be a part hereof from the
respective dates of the filing of such documents. Any statement contained in a
document incorporated or deemed to be incorporated by reference herein shall
be deemed to be modified or superseded for purposes of this Prospectus to the
extent that a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such previous statement. Any such statement so modified
or superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
The Company will provide without charge to each person to whom this
Prospectus is delivered, on the written or oral request of any such person, a
copy of any or all of the documents incorporated by reference herein, other
than certain exhibits to such documents. Such requests should be addressed to
Stephen M. Brett, Esq., Senior Vice President, TCI Communications, Inc.,
Terrace Tower II, 5619 DTC Parkway, Englewood, Colorado 80111-3000; telephone
(303) 267-5500.
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<PAGE>
THE COMPANY
The Company is principally engaged in the construction, acquisition,
ownership and operation of cable television systems. The Company is the
largest provider of cable television services in the United States, based on
the number of basic subscribers served by the Company and its subsidiaries and
affiliates at September 30, 1995. At that date, the Company, through its
subsidiaries and affiliates, owned cable television systems throughout the
continental United States and Hawaii. The Company, two other cable television
companies and Sprint Corporation have formed a series of partnerships to
engage in the business of providing wireless communications and local wireline
communications services to residences and businesses on a nationwide basis
under the "Sprint" brand. The Company owns a 30% interest in this joint
venture.
The Company is a subsidiary of Tele-Communications, Inc. (the "Parent")
which, in addition to the operations of the Company, is engaged in the
provision of satellite delivered programming services to various distribution
media, principally cable television systems. In addition, the Parent has
interests in cable and telecommunications operations and television
programming in certain international markets and has investments in companies
and joint ventures involved in developing and providing programming for new
television and telecommunications technologies. The Parent will have no
obligation or liability, contingent or otherwise, with respect to the Debt
Securities.
USE OF PROCEEDS
The net proceeds from the sale of the Offered Securities, together with
internally generated funds, may be used to repay, redeem or repurchase
outstanding indebtedness of the Company; for general operations of the
Company, including acquisitions, capital expenditures and working capital
requirements; or for such other purposes as may be specified in the Prospectus
Supplement. All or a portion of such proceeds may be advanced to the Parent,
Inc. in the form of dividends or loans and to other affiliates of the Company
in the form of loans or as a contribution to capital. See "Description of Debt
Securities."
A description of any indebtedness to be repaid with the proceeds of the
Offered Securities will be set forth in the Prospectus Supplement. The amount
of the Company's future capital expenditures for cable television operations
will be determined by acquisitions of additional cable television systems,
contractual obligations under existing franchises, expansions of existing
systems through rebuilds and upgrades, technological developments and various
other economic factors and market conditions. Specific plans, arrangements or
agreements, written or oral, with respect to any material acquisitions by the
Company by merger or otherwise, or with respect to any material disposition of
assets by the Company, if any, will, to the extent not disclosed in a document
incorporated by reference herein, be disclosed in the Prospectus Supplement.
Pending application of the net proceeds to the foregoing uses, the net
proceeds will be added to the Company's working capital and invested in short-
term interest-bearing obligations. Such investments will be subject to
fluctuating interest rates which may be lower than the rates applicable to the
Debt Securities.
The Company may borrow additional funds from time to time from public and
private sources on both a long-term and short-term basis any may sell
commercial paper to fund its future capital and working capital requirements
in excess of internally generated funds. Certain of such borrowings may rank
senior in right of payment to the indebtedness represented by the Debt
Securities. See "Description of Debt Securities."
RATIO OF EARNINGS TO FIXED CHARGES
The ratio of earnings to fixed charges of the Company was 1.02, 1.22, and
1.21 for the years ended December 31, 1992, 1993 and 1994, respectively, and
1.23 for the nine months ended September 30, 1994. The ratio of earnings to
fixed charges of the Company was less than 1.00 for the years ended December
31, 1990 and 1991, and for the nine months ended September 30, 1995; thus,
earnings available for fixed charges were inadequate to cover fixed charges
for such periods. The amounts of the coverage deficiencies were $399 million
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and $177 million for the years ended December 31, 1990 and 1991, respectively,
and $63 million for the nine months ended September 30, 1995. For the ratio
calculations, earnings available for fixed charges consists of earnings
(losses) before income taxes plus fixed charges (minus capitalized interest),
distributions from and (earnings) losses of less than 50%-owned affiliates
with debt not guaranteed by the Company (net of earnings not distributed of
less than 50%-owned affiliates), and minority interest in earnings (losses) of
consolidated subsidiaries. Fixed charges consist of (i) interest (including
capitalized interest) on debt, including interest of less than 50%-owned
affiliates with debt guaranteed by the Company and excluding interest to 50%-
owned affiliates, (ii) the Company's proportionate share of interest of 50%-
owned affiliates, (iii) that portion of rental expense the Company believes to
be representative of interest (one-third of rental expense), (iv) amortization
of debt expense, (v) that portion of minority interests in earnings of
consolidated subsidiaries that represent the amount of pretax earnings that
would be required to cover preferred stock dividend requirements excluding
similarly adjusted preferred stock dividend requirements of consolidated
subsidiaries to 50%-owned affiliates, and (vi) the amount representing the
pretax earnings which would be required to cover preferred stock dividend
requirements of 50%-owned affiliates, other than amounts payable to the
Company. The Company has guaranteed the debt of certain less than 50%-owned
affiliates and certain other entities in which it has an interest. Fixed
charges of $710,000, $506,000, $2,517,000, $13,833,000 and $5,346,000 relating
to such guarantees for the years ended December 31, 1990, 1991, 1992, 1993 and
1994, respectively, and fixed charges of $7,403,000 and $3,053,000 relating to
such guarantees for the nine months ended September 30, 1994 and 1995,
respectively, have not been included in fixed charges.
DESCRIPTION OF DEBT SECURITIES
The Company may offer Debt Securities consisting of Senior Debt Securities,
Senior Subordinated Debt Securities or Subordinated Debt Securities, or any
combination of the foregoing, provided that the aggregate initial offering
price of the Debt Securities offered pursuant to the Registration Statement
will not exceed $2 billion (or the equivalent thereof denominated in one or
more foreign currencies, foreign currency units or composite currencies).
The Debt Securities will represent unsecured general obligations of the
Company. The Senior Debt Securities will be senior to all subordinated
indebtedness of the Company, and pari passu (equally and ratably) with other
unsecured, unsubordinated indebtedness of the Company. The Senior Subordinated
Debt Securities will be subordinate in right of payment to certain other debt
obligations of the Company, pari passu with certain other senior subordinated
indebtedness of the Company and senior to certain other subordinated
indebtedness of the Company. The Subordinated Debt Securities will be
subordinate in right of payment to certain other debt obligations of the
Company and pari passu with certain other subordinated indebtedness of the
Company. At September 30, 1995, the Company had an aggregate of approximately
$12.1 billion of total Debt (as defined under "Senior Debt Securities--
Definitions") (including guarantees of indebtedness of others and the
unaccreted portion of indebtedness issued at a discount, but excluding
indebtedness to subsidiaries), substantially all of which would rank on a
parity in right of payment with the Senior Debt Securities. At that date, the
Company and its subsidiaries also had an aggregate of approximately $2.4
million in undrawn lines of credit (excluding amounts related to lines of
credit which provide availability to support commercial paper).
The Company is a holding company and its assets consist primarily of
investments in its subsidiaries. A substantial portion of the consolidated
liabilities of the Company have been incurred by its subsidiaries. Therefore,
the Company's rights and the rights of its creditors, including holders of
Debt Securities, to participate in the distribution of assets of any
subsidiary upon the latter's liquidation or reorganization will be subject to
prior claims of the subsidiary's creditors, including trade creditors, except
to the extent that the Company may itself be a creditor with recognized claims
against the subsidiary (in which case the claims of the Company would still be
subject to the prior claims of any secured creditor of such subsidiary and of
any holder of indebtedness of such subsidiary that is senior to that held by
the Company). At September 30, 1995, the Company's subsidiaries had total Debt
of approximately $4.4 billion (including guarantees of indebtedness of others
and the unaccreted portion of indebtedness issued at a discount, but excluding
indebtedness owed to the Company).
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The Debt Securities will be obligations exclusively of the Company. The
Company's ability to service its indebtedness, including the Debt Securities,
is dependent primarily upon the earnings of its subsidiaries and the
distribution or other payment of such earnings to the Company in the form of
dividends, loans or advances, payment or reimbursement for management fees and
expenses, and repayment of loans and advances from the Company. The
subsidiaries are separate and distinct legal entities and have no obligation,
contingent or otherwise, to pay any amounts due pursuant to the Debt
Securities or to make any funds available therefor, whether by dividends,
loans or other payments. The payment of dividends or the making of loans and
advances to the Company by its subsidiaries may be subject to statutory or
regulatory restrictions, are contingent upon the earnings of those
subsidiaries and are subject to various business considerations. Further,
certain of the Company's subsidiaries are subject to loan agreements that
prohibit or limit the transfer of funds by such subsidiaries to the Company in
the form of loans, advances or dividends and require that such subsidiaries'
indebtedness to the Company be subordinate to the indebtedness under such loan
agreements. The amount of net assets of subsidiaries subject to such
restrictions exceeds the Company's consolidated net assets.
The Senior Debt Securities will be issued under an Indenture to be executed
by the Company and The Bank of New York, as Trustee (the "Senior Indenture");
the Senior Subordinated Debt Securities will be issued under an Indenture to
be executed by the Company and a trustee designated in accordance with the
Trust Indenture Act of 1939, as amended (the "Trust Indenture Act") (the
"Senior Subordinated Indenture"); and the Subordinated Debt Securities will be
issued under an Indenture to be executed by the Company and a trustee
designated in accordance with the Trust Indenture Act (the "Subordinated
Indenture"). In this Prospectus, the Senior Indenture, the Senior Subordinated
Indenture and the Subordinated Indenture are sometimes collectively referred
to as the Indentures and individually as an Indenture and the Trustee under
the Senior Indenture, the Trustee under the Senior Subordinated Indenture and
the Trustee under the Subordinated Indenture are sometimes collectively
referred to as the Trustees and individually as a Trustee. The terms of the
Senior Debt Securities, the Senior Subordinated Debt Securities and the
Subordinated Debt Securities include those stated in the respective Indentures
and in any supplemental indenture, and those made part of the Indentures by
reference to the Trust Indenture Act, as in effect on the date of the
Indentures. The Indentures (or form thereof, as the case may be) are filed as
exhibits to the Registration Statement. The Debt Securities are subject to all
such terms and holders of Debt Securities are referred to the respective
Indentures and the Trust Indenture Act for a statement of such terms. See
"Additional Information."
The following summaries of certain provisions of the Indentures do not
purport to be complete and are subject to, and qualified in their entirety by
reference to, all provisions of the Indentures. As used in this section
"Description of Debt Securities," unless the context indicates otherwise, the
term "Company" means TCI Communications, Inc. and does not include any of its
subsidiaries. All other capitalized terms used in this section and not
otherwise defined have the meanings assigned to them in the Indentures.
GENERAL
The Indentures do not limit the amount of Debt Securities which can be
issued thereunder and provide that Debt Securities may be issued in one or
more series, in such form, with such terms and up to the aggregate principal
amount authorized from time to time by the Company. (Sections 2.01 and 2.02 of
the Indentures)
Reference is made to the Prospectus Supplement for the following terms of
the Offered Securities: (i) the designation (including whether they are Senior
Debt Securities, Senior Subordinated Debt Securities or Subordinated Debt
Securities), aggregate principal amount, authorized denominations and currency
or currencies in which principal, premium, if any, and interest on the Offered
Securities are payable; (ii) whether the Offered Securities are to be issuable
initially in temporary global form and whether any of the Offered Securities
are issuable in permanent global form as Global Securities; (iii) whether the
Offered Securities are to be issuable as Registered Debt Securities or Bearer
Debt Securities or both; (iv) the index or indices used to determine the
amount of payments of principal, premium, if any, and interest on the Offered
Securities; (v) the percentage of their principal amount at which such Offered
Securities will be issued; (vi) the date on which the Offered Securities will
mature (which may be fixed or extendible); (vii) the rate or rates (which may
be fixed
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or variable) per annum, if any, at which the Offered Securities will bear
interest and the date from which such interest will accrue; (viii) the times
at which any such interest will be payable and with respect to Registered Debt
Securities the record date for the interest payable on any interest payment
date; (ix) any mandatory or optional sinking fund or analogous provisions; (x)
the date or dates, if any, on or after which, or the circumstances under
which, and the price or prices (and form or method of payment thereof) at
which the Offered Securities may be redeemed, purchased or exchanged at the
option of the Company or any holder; (xi) any covenants or Events of Default
that are in addition to or different from those described; and (xii) any other
specific terms. Reference is made to the Prospectus Supplement with respect to
the designation and qualification of the Trustee under the applicable Senior
Subordinated Indenture and the Subordinated Indenture.
If the purchase price of any Offered Securities is denominated in one or
more foreign currencies, foreign currency units or composite currencies, or if
the principal, premium, if any, and interest on any Offered Securities are
payable in one or more foreign currencies, foreign currency units or composite
currencies, the restrictions, elections, general tax considerations, specific
terms and other information with respect to such Offered Securities and such
foreign currency or currencies or foreign currency unit or units or composite
currencies will be set forth in the applicable Prospectus Supplement.
Debt Securities may be issued under the Indentures as Original Issue
Discount Securities to be sold at a substantial discount below their principal
amount ("original issue discount"). The issue price of Offered Securities that
are Original Issue Discount Securities, the amount of the original issue
discount with respect thereto, the manner and rate or rates per annum (which
may be fixed or variable) at which such original issue discount shall accrue,
the yield to maturity represented thereby, the date or dates from or to which
or period or periods during which such original issue discount shall accrue,
the portion of the principal amount of such Offered Securities that will be
payable upon acceleration of the maturity thereof or upon the optional or
mandatory redemption, purchase or exchange thereof, and any other specific
terms thereof will be described in the Prospectus Supplement relating thereto,
together with special federal income tax and other considerations applicable
to such Offered Securities.
SENIOR DEBT SECURITIES
The Senior Indenture contains, among others, the following covenants which
will apply to Offered Securities that are Senior Debt Securities unless
otherwise provided in the Prospectus Supplement for such Offered Securities:
Change of Control. With respect to the Senior Debt Securities of any series,
if both (i) a Change of Control shall occur at any time after the date on
which Senior Debt Securities of such series are first issued and on or prior
to the maturity thereof (or during such other period as may be specified for
such series in the related Prospectus Supplement) and (ii) on any date during
the period commencing 90 days before and ending 90 days after a public filing
has been made with the Commission or other general public disclosure has been
made indicating the occurrence of such Change of Control, the then current
rating of the Senior Debt Securities of such series by Duff & Phelps Credit
Rating Co. or its successor ("D&P") or by Moody's Investors Service, Inc. or
its successor ("Moody's") is downgraded to lower than BBB- (or an equivalent
successor rating or, if the rating of the Securities by D&P is lower than BBB-
(or an equivalent successor rating) at the beginning of such 180-day period,
the rating in effect at the beginning of such period), in the case of D&P, or
lower than Baa3 (or an equivalent successor rating or, if the rating of the
Securities by Moody's is lower than Baa3 (or an equivalent successor rating)
at the beginning of such 180-day period, the rating in effect at the beginning
of such period), in the case of Moody's and, in the event that such
downgrading shall have occurred during the 90-day period prior to such public
disclosure, the rating assigned to such series of Senior Debt Securities 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 (or such lower rating by
D&P or Moody's in effect at the beginning of such 180-day period, as the case
may be), respectively (the occurrence of the conditions specified in both (i)
and (ii) above being a "Put Event"), then each holder of Senior Debt
Securities of such series shall have the right to require the Company to
repurchase all or any portion of such holder's Senior Debt Securities of such
series at a purchase price equal to
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100% of the principal amount thereof plus accrued and unpaid interest, if any,
to the date of purchase (or if the Senior Debt Securities of such series are
Original Issue Discount Securities, 100% of that portion of the principal
amount specified in the terms of that series that would be payable if the
maturity thereof were accelerated pursuant to the Indenture), all as provided
in, and subject to the terms of, the Senior Indenture, as the Senior Indenture
may be supplemented in connection with the issuance of Senior Debt Securities
thereunder. Subsequent to the occurrence of a Put Event, the Company will give
a notice to each holder of Senior Debt Securities of such series setting
forth, among other things, details regarding the right of such holder to
require the Company to repurchase such holder's Senior Debt Securities of such
series, the purchase date, and the name and address of the Paying Agent (which
for this purpose will, in the case of Registered Securities, be the Trustee
and, in the case of Bearer Securities, will be a Paying Agent in a place of
payment located outside the United States) to which such Senior Debt
Securities are to be presented and surrendered. The Company will not be
obligated, with respect to the Senior Debt Securities of any series, to
purchase such Senior Debt Securities or give notice to the holders thereof
with respect to more than one Put Event. (Section 4.02 of the Senior
Indenture) The obligation of the Company to purchase Senior Debt Securities
put to it pursuant to this covenant will rank senior to its obligations in
respect of the Senior Subordinated Debt Securities and the Subordinated Debt
Securities. The applicability of this covenant is limited to the circumstances
described above and this covenant is not designed to, and may not, provide
rights to the holders of Senior Debt Securities in all circumstances in which
the market value of the Senior Debt Securities held by them may be adversely
affected, whether as the result of the Company's engaging in a highly
leveraged transaction or otherwise.
The Company will comply with any applicable requirements of Rule 14e-1
promulgated under the Exchange Act and any applicable securities laws and
regulations in connection with the performance of its obligations under this
covenant.
Limitation on Liens. Subject to certain specified exceptions, as long as any
Senior Debt Securities of a series entitled to the benefit of this covenant
are outstanding, the Company will not, and will not permit any Restricted
Subsidiary to, create, incur or assume any Lien on Restricted Property to
secure the payment of Funded Debt of the Company or any Restricted Subsidiary
if immediately after the creation, incurrence or assumption of such Lien, the
aggregate outstanding principal amount of all Funded Debt of the Company and
the Restricted Subsidiaries that is secured by Liens on Restricted Property
would exceed fifteen percent (15%) of the Maximum Funded Debt Amount, unless
effective provision is made whereby the Senior Debt Securities (together with,
if the Company shall so determine, any other Funded Debt ranking equally with
the Senior Debt Securities, whether then existing or thereafter created) are
secured equally and ratably with (or prior to) such Funded Debt (but only for
so long as such Funded Debt is so secured). (Section 4.04 of the Senior
Indenture)
Limitation on Restricted Subsidiary Funded Debt. As long as any Senior Debt
Securities of a series entitled to the benefit of this covenant are
outstanding, the Company will not permit any Restricted Subsidiary to incur or
assume any Funded Debt if immediately after the incurrence or assumption of
such Funded Debt, the aggregate outstanding principal amount of all Funded
Debt of the Restricted Subsidiaries would exceed fifteen percent (15%) of the
Maximum Funded Debt Amount. Notwithstanding the foregoing, any Restricted
Subsidiary may incur Funded Debt to extend, renew or replace Funded Debt of
such Restricted Subsidiary provided that the principal amount of the Funded
Debt so incurred does not exceed the principal amount of the Funded Debt
extended, renewed or replaced thereby immediately prior to such extension,
renewal or replacement plus any premium, accrued and unpaid interest or
capitalized interest payable thereon. (Section 4.05 of the Senior Indenture)
The Senior Indenture do not limit the incurrence of Funded Debt, or any other
debt, secured or unsecured, by the Company, except as described under
"Limitation on Liens," or by any Unrestricted Subsidiary.
Designation of Restricted Subsidiaries. With respect to the Senior Debt
Securities of any series, the Company may designate an Unrestricted Subsidiary
as a Restricted Subsidiary or designate a Restricted Subsidiary as an
Unrestricted Subsidiary at any time, provided that (1) immediately after
giving effect to such designation, the Leverage Ratio of the Restricted Group
is not greater than 8.0:1 and the Company and the Restricted Subsidiaries are
in compliance with the "Limitation on Liens" and "Limitation on Restricted
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Subsidiary Funded Debt" covenants, and (2) an Officers' Certificate with
respect to such designation is delivered to the Trustee within 75 days after
the end of the fiscal quarter of the Company in which such designation is made
(or, in the case of a designation made during the last fiscal quarter of the
Company's fiscal year, within 120 days after the end of such fiscal year),
which Officers' Certificate shall state the effective date of such
designation. The Company shall make the initial designation of Restricted
Subsidiaries with respect to the Senior Debt Securities of any series, and
deliver the required Officers' Certificate with respect thereto to the
Trustee, on or prior to the date of initial issuance of Senior Debt Securities
of such series. (Section 4.03 of the Senior Indenture)
Definitions. The following are certain of the terms defined in the Senior
Indenture (Section 1.01):
"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 or Parent Subsidiary, any employee stock
ownership or other employee benefit plan of the Parent or the Company or of
any Subsidiary or Parent Subsidiary, or any Controlling Person) during any
period of twelve (12) consecutive months of beneficial ownership of shares of
the Class A Stock or Class B Stock or both representing in the aggregate
thirty percent (30%) or more of the combined voting power of all shares of the
Class A 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 Class A Stock and Class B Stock beneficially owned by the
Parent, the Parent Subsidiaries (other than the Company) and the Controlling
Persons represent in the aggregate 30% or more of the combined voting power of
all shares of the Class A Stock and Class B Stock calculated on a fully
diluted basis, or (B) for so long as the Company is a Parent Subsidiary, the
acquisition by any person (other than the Parent, any Parent Subsidiary, any
employee stock ownership plan or other employee benefit plan of the Parent or
any Parent Subsidiary, or any Controlling Person) during any period of twelve
(12) consecutive months of beneficial ownership of shares of common stock of
the Parent representing in the aggregate thirty percent (30%) or more of the
combined voting power of all shares of the Parent's 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 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 common
stock calculated on a fully diluted basis.
"Class A Stock" means the Class A Common Stock, $1.00 par value, of the
Company as it exists on the date of the Senior Indenture and stock of any
other class into which such Class A Common Stock may thereafter have been
changed.
"Class B Stock" means the Class B Common Stock, $1.00 par value, of the
Company as it exists on the date of the Senior Indenture and stock of any
other class into which such Class B Common Stock may thereafter have been
changed.
"Company" means TCI Communications, Inc., a Delaware corporation, until a
successor replaces it pursuant to the applicable provisions of the Indenture
and thereafter means the successor.
"Controlling Person" means each of (1) the Chairman of the Board of the
Parent as of the date of the Indenture, (2) the President of the Parent as of
the date of the Indenture, (3) each of the directors of the Parent as of the
date of the Indenture, (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 or Parent Subsidiary.
As used with respect to any person,
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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 or Parent
Subsidiary 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.
"Debt" of any person means:
(1) any indebtedness of such person (i) for borrowed money or (ii) evidenced
by a note, debenture or similar instrument (including a purchase money
obligation) given in connection with the acquisition of any property or
assets, including securities;
(2) any guarantee by such person of any indebtedness of others described in
the preceding clause (1); and
(3) any amendment, extension, renewal or refunding of any such indebtedness
or guarantee.
"Funded Debt" of any person means, as of the date as of which the amount
thereof is to be determined, without duplication, all indebtedness of such
person for borrowed money and all guaranties by such person of any
indebtedness of others for borrowed money, which by its terms has a final
maturity, duration or payment date more than one year from the date of
determination thereof (including, without limitation, any balance of such
indebtedness which was Funded Debt at the time of its creation maturing within
one year from such date of determination) or which has a final maturity,
duration or payment date within one year from such date of determination but
which by its terms may be renewed or extended at the option of such person for
more than one year from such date of determination, whether or not theretofore
renewed or extended. When used with respect to the Company or any Restricted
Subsidiary, the term "Funded Debt" excludes (1) any indebtedness of the
Company or any Restricted Subsidiary to the Company or another Restricted
Subsidiary, (2) any guarantee by the Company or any Restricted Subsidiary of
indebtedness of the Company or another Restricted Subsidiary, provided that
such guarantee is not secured by a Lien on Restricted Property, and (3) with
respect to any series of Senior Debt Securities, any indebtedness of the
Company or any Restricted Subsidiary to any Unrestricted Subsidiary which
indebtedness is subordinated in right of payment to the prior payment in full
of the outstanding Senior Debt Securities of such series on terms no less
favorable to the holders of such Senior Debt Securities than those contained
in Article Ten of the subordinated Indenture pursuant to which Subordinated
Debt Securities issued by the Company are subordinated to all Senior Debt of
the Company (as defined therein), without giving effect to any amendment,
modification or supplement to, or discharge of, the Subordinated Indenture
after the date of the Senior Indenture, and which indebtedness is not secured
by a Lien on Restricted Property. For purposes of determining the outstanding
principal amount of Funded Debt at any date, the amount of indebtedness issued
at a price less than the principal amount thereof shall be equal to the amount
of the liability in respect thereof at such date determined in accordance with
generally accepted accounting principles.
"Leverage Ratio" with respect to the Restricted Group means, as of the date
of and after giving effect to any designation of an Unrestricted Subsidiary as
a Restricted Subsidiary and/or any designation of a Restricted Subsidiary as
an Unrestricted Subsidiary, in each case in accordance with the "Designation
of Restricted Subsidiaries" covenant, the ratio of (1) the aggregate
outstanding principal amount of all Funded Debt of the Restricted Group as of
such date to (2) the product of four times the restricted Group Cash Flow for
the most recent full fiscal quarter for which financial information is
available on such date.
"Lien" means any mortgage, pledge, lien, security interest, or other similar
encumbrance.
"Maximum Funded Debt Amount" means, as of any date of determination thereof,
that amount which is equal to the product of (i) eight and (ii) the product of
(x) the Restricted Group Cash Flow for the most recent full fiscal quarter for
which financial information is available on such date and (y) four.
"Parent" means Tele-Communications, Inc., a Delaware corporation, and any
successor thereof.
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"Principal Property" means, as of any date of determination, any property or
assets owned by any Restricted Subsidiary other than (1) any such property
which, in the good faith opinion of the Board of Directors, is not of material
importance to the business conducted by the Company and its Restricted
Subsidiaries taken as a whole and (2) any shares of any class of stock or any
other security of any Unrestricted Subsidiary.
"Restricted Group" means, as of any date of determination, the Company and
the Restricted Subsidiaries as of such date after giving effect to any
designation being made on such date in accordance with the "Designation of
Restricted Subsidiaries" covenant.
"Restricted Group Cash Flow" for any period means the Restricted Group Net
Income (as defined below) for such period, plus (A) the sum (without
duplication) of the aggregate of each of the following items of the Company
and the Restricted Subsidiaries for such period to the extent taken into
account as charges to Restricted Group Net Income for such period: (i)
interest expense, (ii) income tax expense, (iii) depreciation and amortization
expense and other noncash charges, (iv) extraordinary items and (v) after-tax
losses on sales of assets outside of the ordinary course of business not
otherwise included in extraordinary items in accordance with generally
accepted accounting principles, minus (B) the sum (without duplication) of the
aggregate of each of the following items of the Company and the Restricted
Subsidiaries for such period to the extent taken into account as credits to
Restricted Group Net Income for such period: (i) noncash credits, (ii)
extraordinary items, and (iii) after-tax gains on sales of assets outside of
the ordinary course of business not otherwise included in extraordinary items
in accordance with generally accepted accounting principles.
For purposes of this definition, (1) "Restricted Group Net Income" for any
period means the aggregate of the net income (loss) for such period of the
Company and the Restricted Subsidiaries, determined on a consolidated basis in
accordance with generally accepted accounting principles; provided, however,
that (i) the net income (loss) of any person accounted for by the equity
method of accounting and the net income (loss) of any Unrestricted Subsidiary
shall be excluded, except that the net income of any such person or
Unrestricted Subsidiary shall be included to the extent of the amount of
dividends or distributions paid by such person or Unrestricted Subsidiary to
the Company or a Restricted Subsidiary during such period, and (ii) except as
otherwise provided in clause (2) below, the net income (loss) of any other
person acquired by the Company or any Restricted Subsidiary in a transaction
accounted for as a pooling of interests for any period prior to the date of
such acquisition shall be excluded; and (2) if the Company or any Restricted
subsidiary consummated any acquisition or deposition of assets during the
period for which Restricted Group Cash Flow is being calculated, or
consummated any acquisition or disposition of assets subsequent to such period
and on or prior to the date as of which the Leverage Ratio or Maximum Funded
Debt Amount, as applicable, is to be determined, then, in each such case, the
restricted Group Cash Flow for such period shall be calculated on a pro forma
basis as if such acquisition or disposition had occurred at the beginning of
such period.
"Restricted Property" means, as of any date of determination, any Principal
Property and any shares of stock of a Restricted Subsidiary owned by the
Company or a Restricted Subsidiary.
"Restricted Subsidiary" means, as of any date of determination, a
corporation a majority of whose voting stock is owned by the Company and/or
one or more Restricted Subsidiaries, which corporation has been, or is then
being, designated a Restricted Subsidiary in accordance with the "Designation
of Restricted Subsidiaries" covenant, unless and until designated an
Unrestricted Subsidiary in accordance with such covenant.
"Subsidiary" means a corporation a majority of whose voting stock is owned
by the Company and/or one or more Subsidiaries. Voting stock is capital stock
having voting power under ordinary circumstances to elect directors.
"Unrestricted Subsidiary" means, as of any date of determination, any
Subsidiary of the Company that is not a Restricted Subsidiary.
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SENIOR SUBORDINATED DEBT SECURITIES
The following provisions will apply to Offered Securities that are Senior
Subordinated Debt Securities unless otherwise provided in the Prospectus
Supplement for such Offered Securities.
Subordination. The indebtedness evidenced by the Senior Subordinated Debt
Securities will be subordinate to the prior payment in full of all Senior Debt
as described below. The Indenture does not limit Senior Debt or any other
debt, secured or unsecured, of the Company or any subsidiary, except as
described under "Limitation on Subordinated Debt Superior to the Senior
Subordinated Debt Securities" below. Upon maturity (by acceleration or
otherwise) of any Senior Debt, payment in full must be made on such Senior
Debt (or duly provided for) before any payment is made on or in respect of the
Senior Subordinated Debt Securities (except payments made in capital stock of
the Company or in warrants, rights or options to purchase or acquire capital
stock of the Company, sinking fund payments made in Senior Subordinated Debt
Securities acquired by the Company before the maturity of such Senior Debt,
and payments made through the exchange of other debt obligations of the
Company for such Senior Subordinated Debt Securities in accordance with the
terms of such Senior Subordinated Debt Securities provided that such Debt
obligations are subordinated to Senior Debt at least to the extent that the
Senior Subordinated Debt Securities for which they are exchanged are so
subordinated in accordance with the Indenture). During the continuance of any
default in payment of the principal of, premium, if any, interest on, or other
amounts due in respect of, any Senior Debt, no payment may be made by the
Company on, or in respect of, the Senior Subordinated Debt Securities (except
payments made in capital stock of the Company or in warrants, rights or
options to purchase or acquire capital stock of the Company, sinking fund
payments made in Senior Subordinated Debt Securities acquired by the Company
before such default and notice thereof, and payments made through the exchange
of other debt obligations of the Company for such Senior Subordinated Debt
Securities in accordance with the terms of such Senior Subordinated Debt
Securities provided that such debt obligations are subordinated to Senior Debt
at least to the extent that the Senior Subordinated Debt Securities for which
they are exchanged are so subordinated in accordance with the Indenture). Upon
any distribution of assets of the Company in any dissolution, winding up,
liquidation or reorganization of the Company, payment of all amounts due in
respect of the Senior Subordinated Debt Securities will be subordinated, to
the extent and in the manner set forth in the Indenture, to the prior payment
in full of all Senior Debt. Such subordination will not prevent the occurrence
of any Event of Default. (Sections 10.01, 10.02, 10.03 and 10.11 of the
Indenture) The Indenture for the Senior Debt Securities contains a cross-
acceleration provision that would, among other things, permit the acceleration
of the maturity of any outstanding Senior Debt Securities in the event that
the maturity of any outstanding Senior Subordinated Debt Securities or
Subordinated Debt Securities were accelerated. See "Defaults and Remedies"
below. The instruments and agreements pursuant to which all or substantially
all of the Company's Senior Debt has been incurred also contain cross-default
or cross-acceleration provisions.
Securities Senior to Junior Subordinated Debt. The indebtedness evidenced by
the Senior Subordinated Debt Securities will be superior in right of payment
to all Junior Subordinated Debt as described below. Upon maturity (by
acceleration or otherwise) of the Senior Subordinated Debt Securities of any
series, payment in full must be made thereon, or duly provided for, before any
payment is made on or in respect of any Junior Subordinated Debt (except
payments made in capital stock of the Company or in warrants, rights or
options to purchase or acquire capital stock of the Company, sinking fund
payments made in instruments evidencing Junior Subordinated Debt of the same
issue acquired before the maturity of the Senior Subordinated Debt Securities
of such series, and payments made through the exchange of other debt
obligations of the Company for such Junior Subordinated Debt in accordance
with the terms of such Junior Subordinated Debt provided that such debt
obligations are subordinated to the Senior Subordinated Debt Securities at
least to the extent that the Junior Subordinated Debt for which they are
exchanged is so subordinated in accordance with the Indenture). During the
continuance of any default in payment of the principal of, premium, if any,
interest on, or other amounts due in respect of, the Senior Subordinated Debt
Securities of any series, no payment may be made by the Company on, or in
respect of, any Junior Subordinated Debt (except payments made in capital
stock of the Company or in warrants, rights or options to purchase or acquire
capital stock of the Company, sinking fund payments made in instruments
evidencing Junior Subordinated Debt of the same issue acquired before such
default and notice thereof, and payments made through the exchange of other
debt obligations of the Company for such Junior
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Subordinated Debt in accordance with the terms of such Junior Subordinated
Debt provided that such debt obligations are subordinated to the Senior
Subordinated Debt Securities at least to the extent that the Junior
Subordinated Debt for which they are exchanged is so subordinated in
accordance with the Indenture). Upon any distribution of assets of the Company
in any dissolution, winding up, liquidation or reorganization of the Company,
holders of the Senior Subordinated Debt Securities will be entitled to receive
payment in full of all amounts due in respect thereof before the holders of
any Junior Subordinated Debt are entitled to receive any payment on account of
such Junior Subordinated Debt. (Section 4.05 of the Indenture)
Limitation on Subordinated Debt Superior to the Senior Subordinated Debt
Securities. As long as any Senior Subordinated Debt Securities remain
outstanding, the Company may not create or incur any Debt which is subordinate
or junior in right of payment to any Senior Debt if such Debt is superior in
right of payment to the Senior Subordinated Debt Securities. (Section 4.06 of
the Indenture)
Definitions. The following are certain of the terms defined in the Indenture
(Sections 4.06 and 10.01):
"Junior Subordinated Debt" means the principal of (premium, if any) and
interest on Debt of the Company created or incurred after the date of the
Indenture which by its terms is subordinate in right of payment to the Senior
Subordinated Debt Securities, including any Subordinated Debt Securities
issued under the Subordinated Indenture.
"Senior Debt" means the principal of (premium, if any) and interest on Debt
of the Company outstanding at any time other than (i) the Senior Subordinated
Debt Securities, (ii) the Company's outstanding 11 1/8% senior subordinated
debentures due October 1, 2003, which shall rank pari passu with the Senior
Subordinated Debt Securities, (iii) any Subordinated Debt Securities issued
under the Subordinated Indenture, and (iv) Debt which by its terms is not
superior in right of payment to the Senior Subordinated Debt Securities.
The definition of "Debt" in the Senior Subordinated Indenture is the same as
that in the Senior Indenture.
Nothing in the Indenture affords holders of Senior Subordinated Debt
Securities protection in the event of a highly leveraged transaction,
reorganization, restructuring, merger or similar, transaction involving the
Company.
SUBORDINATED DEBT SECURITIES
The following provisions will apply to Offered Securities that are
Subordinated Debt Securities unless otherwise provided in the Prospectus
Supplement for such Offered Securities:
Subordination. The indebtedness evidenced by the Subordinated Debt
Securities will be subordinate to the prior payment in full of all Senior Debt
as described below. The Indenture does not limit Senior Debt or any other
debt, secured or unsecured, of the Company or any subsidiary. Upon maturity
(by acceleration or otherwise) of any Senior Debt, payment in full must be
made on such Senior Debt (or duly provided for) before any payment is made on
or in respect of the Subordinated Debt Securities (except payments made in
capital stock of the Company or in warrants, rights or options to purchase or
acquire capital stock of the Company, sinking fund payments made in
Subordinated Debt Securities acquired by the Company before the maturity of
such Senior Debt, and payments made through the exchange of other debt
obligations of the Company for such Subordinated Debt Securities in accordance
with the terms of such Subordinated Debt Securities provided that such debt
obligations are subordinated to Senior Debt at least to the extent that the
Subordinated Debt Securities for which they are exchanged are so subordinated
in accordance with the Indenture). During the continuance of any default in
payment of the principal of, premium, if any, interest on, or other amounts
due in respect of, any Senior Debt, no payment may be made by the Company on,
or in respect of, the Subordinated Debt Securities (except payments made in
capital stock of the Company or in warrants, rights or options to purchase or
acquire capital stock of the Company, sinking fund payments made in
Subordinated Debt Securities acquired by the Company before such default and
notice thereof, and payments made through the exchange of other debt
obligations of the Company for such Subordinated Debt Securities in accordance
with the terms of such Subordinated Debt Securities provided that such debt
obligations are subordinated to Senior Debt at least to the
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extent that the Subordinated Debt Securities for which they are exchanged are
so subordinated in accordance with the Indenture). Upon any distribution of
assets of the Company in any dissolution, winding up, liquidation or
reorganization of the Company, payment of all amounts due in respect of the
Subordinated Debt Securities will be subordinated, to the extent and in the
manner set forth in the Indenture, to the prior payment in full of all Senior
Debt. Such subordination will not prevent the occurrence of any Event of
Default. (Sections 10.01, 10.02, 10.03 and 10.11 of the Indenture) The
Indenture for the Senior Debt Securities contains a cross-acceleration
provision that would, among other things, permit the acceleration of the
maturity of any outstanding Senior Debt Securities in the event that the
maturity of any outstanding Senior Subordinated Debt Securities or
Subordinated Debt Securities were accelerated. See "Defaults and Remedies"
below. The instruments and agreements pursuant to which all or substantially
all of the Company's Senior Debt has been incurred also contain cross-default
or cross-acceleration provisions.
"Senior Debt" means the principal of (premium, if any) and interest on Debt
of the Company outstanding at any time other than (i) the Subordinated Debt
Securities, and (ii) Debt which by its terms is not superior in right of
payment to the Subordinated Debt Securities. The definition of "Debt" in the
Subordinated Indenture is the same as that in the Senior Indenture.
Nothing in the Indenture affords holders of Subordinated Debt Securities
protection in the event of a highly leveraged transaction, reorganization,
restructuring, merger or similar transaction involving the Company.
DENOMINATION AND FORM
Unless otherwise indicated in the Prospectus Supplement, the Offered
Securities will be Registered Debt Securities denominated in U.S. Dollars and
will be issued only in denominations of $1,000 and integral multiples of
$1,000. (Section 2.03 of the Senior Subordinated and Subordinated Indentures
and Sections 2.01 and 2.03 of the Senior Indenture) Under the Senior
Indenture, Debt Securities of any series may be issuable as Registered Debt
Securities, Bearer Debt Securities (with or without coupons attached) or both,
and may be issuable in whole or in part in the form of one or more Global
Securities. In addition, the Senior Indenture provides that Debt Securities
may be denominated or payable in one or more foreign currencies, foreign
currency units or composite currencies. (Sections 2.01 and 2.02 of the Senior
Indenture) Unless otherwise indicated in the applicable Prospectus Supplement,
Bearer Debt Securities denominated in U.S. Dollars will be issued only in the
denomination of $5,000 with coupons attached. (Sections 2.01 and 2.03 of the
Senior Indenture) A Global Security will be issued in a denomination equal to
the aggregate principal amount of outstanding Debt Securities represented by
such Global Security. (Section 2.10 of the Senior Indenture and Section 2.15
of the Senior Subordinated and the Subordinated Indentures) The Prospectus
Supplement relating to a series of Debt Securities denominated other than in
U.S. Dollars will specify the authorized denominations thereof.
During the "restricted period," as defined in Treasury Regulation Section
1.163-5(c)(2)(i)(D)(7), no Bearer Debt Security may be offered or sold (or
resold in connection with its original issuance) in the United States or its
possessions or to a United States person (subject to certain exceptions).
Further, no Bearer Debt Security may be mailed or otherwise delivered to any
location in the United States or its possessions in connection with a sale
that occurred during the restricted period. Offered Securities that are Bearer
Debt Securities will be subject to certification requirements as to the
ownership of such Bearer Debt Security (including beneficial interests in a
Global Security representing such Bearer Debt Security) which will be
described in the applicable Prospectus Supplement. See "Limitations on
Issuance of Bearer Debt Securities."
REGISTRAR, PAYING AGENT
The Company will maintain an office or agency where Registered Debt
Securities of each series may be presented for registration of transfer or for
exchange ("Registrar") and an office or agency where Debt Securities of each
series may be presented for payment ("Paying Agent"). The Company may have one
or more co-Registrars and one or more additional Paying Agents with respect to
any series of Debt Securities and the Company or any of its subsidiaries may
act as Paying Agent, Registrar or co-Registrar. Unless otherwise
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indicated in an applicable Prospectus Supplement, each Trustee will initially
act as Paying Agent and Registrar for each series of Debt Securities issued
under its respective Indenture. The Company may change any Paying Agent,
Registrar or co-Registrar at any time without notice to the holders of Debt
Securities, except as described below with respect to Debt Securities issued
under the Senior Indenture. The Company will promptly notify the Trustee of
the name and address of any such Agent. (Section 2.05 of the Indentures)
The Senior Indenture also provides that if Debt Securities of a series are
issuable as Bearer Debt Securities, the Company will maintain (i) in the
Borough of Manhattan, The City of New York, an office or agency where any
Registered Debt Securities of that series may be presented or surrendered for
payment and for registration of transfer, where Debt Securities of that series
may be surrendered for exchange and where Bearer Debt Securities of that
series and related coupons may be presented or surrendered for payment in the
circumstances described under "Payment" below, and (ii) subject to any laws or
regulations applicable thereto, in a place of payment for Debt Securities of
that series located outside the United States, an office or agency where any
Registered Debt Securities of that series may be surrendered for registration
of transfer, where Debt Securities of that series may be surrendered for
exchange and where Debt Securities of that series and any related coupons may
be presented and surrendered for payment, provided that if the Debt Securities
of that series are listed on The International Stock Exchange of the United
Kingdom and the Republic of Ireland, the Luxembourg Stock Exchange or any
other stock exchange located outside the United States and such stock exchange
shall so require, the Company will maintain a Paying Agent for the Debt
Securities of that series in London, Luxembourg or any other required city
located outside the United States, as the case may be, so long as the Debt
Securities of that series are listed on such exchange. Any Paying Agents
outside the United States initially designated by the Company for the Offered
Securities will be named in the applicable Prospectus Supplement. The Company
will promptly notify the Trustee and the holders of Debt Securities of a
series of the location and any change in the location of any office or agency
which it is required to maintain for the Debt Securities of such series.
(Section 4.01 of the Senior Indenture)
TRANSFER AND EXCHANGE
Registered Debt Securities of any series (other than a Global Security,
except as provided under "Global Securities") will be exchangeable at the
option of the holder for other Registered Debt Securities of the same series
of any authorized denominations and of a like aggregate principal amount and
tenor. (Section 2.08 of the Indenture) In addition, if Debt Securities of any
series issued under the Senior Indenture are issuable as both Registered Debt
Securities and Bearer Debt Securities, then, if so provided with respect to
the Debt Securities of such series, at the option of the holder and subject to
the terms of such Indenture, Bearer Debt Securities (with, except as provided
below, all related unmatured coupons and all related matured coupons in
default) of such series will be exchangeable for Registered Debt Securities of
the same series of any authorized denominations and of a like aggregate
principal amount and tenor. Bearer Debt Securities surrendered in exchange for
Registered Debt Securities between a regular record date or, in certain
circumstances, a special record date, for an interest payment and the relevant
interest payment date shall be surrendered without the coupon relating to such
interest payment date attached and interest will not be payable on such
interest payment date in respect of the Registered Debt Security issued in
exchange for such Bearer Debt Security, but will be payable only to the holder
of such coupon in accordance with the terms of the Senior Indenture. Unless
otherwise specified in the applicable Prospectus Supplement, Bearer Debt
Securities will not be issued in exchange for Registered Debt Securities.
(Section 2.08 of the Senior Indenture)
Debt Securities of any series may be surrendered for exchange as provided
above, and Registered Debt Securities of any series (other than a Global
Security, except as provided under "Global Securities") may be surrendered for
registration of transfer, at the office or agency designated by the Company
for such purpose with respect to such series of Debt Securities. Bearer Debt
Securities will be transferable by delivery. (Section 2.14 of the Senior
Indenture) Every Registered Debt Security presented or surrendered for
registration of transfer or for exchange shall be duly endorsed or accompanied
by appropriate transfer documents duly executed. No service charge will be
made for any registration of transfer or exchange of Debt Securities, but the
Company may require
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payment of a sum sufficient to cover any taxes and other governmental charges
that may be imposed in relation thereto. (Section 2.08 of the Indentures)
The Company and the Registrar need not transfer or exchange any Debt
Securities selected for redemption or purchase (except, in the case of Debt
Securities to be redeemed or purchased in part, the portion thereof not to be
redeemed or purchased) or any Debt Securities in respect of which a notice
requiring the purchase or redemption thereof by the Company at the option of
the holder thereof has been given and not withdrawn by such holder in
accordance with the terms of such Debt Securities (as described, if
applicable, in the Prospectus Supplement) (except, in the case of Debt
Securities to be so purchased or redeemed in part, the portion thereof not to
be so purchased or redeemed). (Section 2.08 of the Indentures) A Bearer Debt
Security so selected for redemption or purchase or in respect of which a
notice requiring the redemption or purchase thereof by the Company at the
option of the holder thereof has been given and not so withdrawn may however,
if so provided with respect to the Debt Securities of such series, be
exchanged for a Registered Debt Security of that series and like tenor,
provided that such Registered Debt Security is simultaneously surrendered for
redemption or purchase, as the case may be. (Section 2.08 of the Senior
Indenture)
The Senior Subordinated Indenture and the Subordinated Indenture also
provide that the Registrar need not transfer or exchange any Debt Securities
of a particular series during a period of 15 days before a selection of Debt
Securities of such series to be redeemed. (Section 2.08 of the Senior
Subordinated and the Subordinated Indentures) The Senior Indenture provides
that the Company shall not be required to issue, register the transfer of or
exchange Debt Securities of any series during a period beginning at the
opening of business 15 days before any selection of Debt Securities of that
series to be redeemed and ending at the close of business on (i) if Debt
Securities of that series are issuable only as Registered Debt Securities, the
date of the mailing of the relevant notice of redemption, and (ii) if Debt
Securities of that series are issuable as Bearer Debt Securities, the date of
the first publication of the relevant notice of redemption or, if Debt
Securities of that series are also issuable as Registered Debt Securities and
there is no publication, the mailing of the relevant notice of redemption.
(Section 2.08 of the Senior Indenture)
Prior to due presentment of a Registered Debt Security for registration to
transfer, the person in whose name such Registered Debt Security is registered
may be treated as the owner of it for all purposes. (Section 2.14 of the
Indentures) The bearer of any Bearer Debt Security and the bearer of any
coupon appertaining thereto may be treated as the owner of such Bearer Debt
Security or coupon for all purposes. (Section 2.14 of the Senior Indenture)
GLOBAL SECURITIES
The Indentures provide that the Debt Securities of any series thereunder may
be issued in whole or in part in the form of one or more Global Securities,
which Global Securities may be issued in registered form (or, in the case of
Senior Debt Securities, bearer form) and in either temporary or permanent
form. (Sections 2.10 and 2.11 of the Senior Indenture and Sections 2.11 and
2.15 of the Senior Subordinated and Subordinated Indentures) Each Global
Security will be deposited with and, if it is issued in registered form, will
be registered in the name of the depositary (or a nominee of the depositary)
identified in the applicable Prospectus Supplement. (Section 2.10 of the
Senior Indenture and Section 2.15 of the Senior Subordinated and Subordinated
Indentures) So long as the depositary for a Global Security in registered
form, or its nominee, is the registered owner of the Global Security, the
depositary or its nominee, as the case may be, will be considered the sole
owner of the Debt Securities represented by such Global Security for all
purposes under the Indenture. (Section 2.14 of the Indentures) Unless and
until it is exchanged in whole or in part for Debt Securities in definitive
form, a Global Security may not be transferred except as a whole by the
depositary for such Global Security to a nominee of such depositary or by a
nominee of such depositary to such depositary or another nominee of such
depositary or by the depositary or any nominee to a successor depositary or
any nominee of such successor. (Section 2.08 of the Indentures) Unless
otherwise specified in the applicable Prospectus Supplement, if the depositary
with respect to any Global Security is at any time unwilling, unable or
ineligible to continue as depositary and a successor
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depositary is not appointed by the Company within 90 days of such time, or if
the Company, in its sole discretion, at any time determines that any series of
Debt Securities issued or issuable in the form of a Global Security shall no
longer be represented by such Global Security, then in either such event the
Global Security shall be exchanged for Debt Securities in definitive form
pursuant to the applicable Indenture. Further, if so specified by the Company
with respect to the Debt Securities of a series and described in the
applicable Prospectus Supplement, an owner of a beneficial interest in a
Global Security representing Debt Securities of such series may, on terms
acceptable to the Company and the depositary for such Global Security, receive
Debt Securities of such series in definitive form. In any such instance, an
owner of a beneficial interest in a Global Security will be entitled to
physical delivery in definitive form of Debt Securities in authorized
denominations and of like tenor of the series represented by such Global
Security, equal in principal amount to such beneficial interest, and to have
such Debt Securities registered in its name (if the Debt Securities of such
series are issuable as Registered Debt Securities). (Section 2.08 of the
Indentures) See, however, "Limitations on Issuance of Bearer Debt Securities"
below for a discussion of certain restrictions on the delivery of a Bearer
Debt Security in definitive form in exchange for an interest in a Global
Security. Except as described above, unless otherwise specified in the
applicable Prospectus Supplement, owners of beneficial interests in a Global
Security will not be entitled to have Debt Securities of the series
represented by such Global Security registered in their names, will not
receive or be entitled to receive physical delivery of Debt Securities of such
series in definitive form and will not be considered the owners or holders
thereof under the applicable Indenture.
Any specific terms of the depositary arrangement with respect to a series of
Debt Securities or any part thereof will be described in the applicable
Prospectus Supplement. The Company anticipates that the following provisions
will apply to all depositary arrangements.
Upon the issuance of a Global Security, the depositary will credit, on its
book-entry registration and transfer system, the respective principal amounts
of the Debt Securities represented by such Global Security to the accounts of
participants. Ownership of beneficial interests in a Global Security will be
shown on, and the transfer of that ownership will be effected only through,
records maintained by the depositary (with respect to beneficial interests of
participants in the depositary), or by participants in the depositary or
persons that may hold interest through such participants (with respect to
beneficial interests of persons other than participants in the depositary).
Ownership of beneficial interests in a Global Security will be limited to
participants or persons that hold interests through participants.
Subject to the restrictions discussed under "Limitations on Issuance of
Bearer Debt Securities" below, payments of the principal of and any premium
and interest on Debt Securities registered in the name of or held by a
depositary or its nominee will be made to the depositary or its nominee, as
the case may be, as the registered owner or the holder of the Global Security
representing such Debt Securities. None of the Company, the Trustee, any
Paying Agent or the Registrar for such Debt Securities will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests in Global Security
for such debt Securities or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests. (Section 2.14 of the
Indentures)
The Company expects that the depositary for Debt Securities of a series,
upon receipt of any payment of principal, premium or interest in respect of a
Global Security, will credit immediately participants' accounts with payments
in amounts proportionate to their respective beneficial interests in the
principal amount of such Global Security as shown on the records of such
depositary. The Company also expects that payments by participants to owners
of beneficial interests in such Global Security held through such participants
will be governed by standing instructions and customary practices, as is now
the case with securities held for the accounts of customers in bearer form or
registered in "street name," and will be the responsibility of such
participants. With respect to a Global Security that represents in whole or in
part Debt Securities of a series that are issuable as Bearer Debt Securities,
receipt by owners of beneficial interests in such Global Security of payments
in respect of such Global Security will be subject to the restrictions
discussed under "Limitations on Issuance of Bearer Debt Securities" below.
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LIMITATIONS ON ISSUANCE OF BEARER DEBT SECURITIES
In compliance with United States federal tax laws and regulations, Bearer
Debt Securities (including beneficial interests in a Global Security that
represents Bearer Debt Securities) may not be offered or sold (or resold in
connection with their original issuance) during the "restricted period," as
defined in Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7), in the United
States or its possessions or to United States persons (each as defined below)
other than to (i) a Qualifying Foreign Branch of a United States Financial
Institution (as defined below), (ii) a United States person who acquires and
holds the obligation through the Qualifying Foreign Branch of a United States
Financial Institution, (iii) a United States office of an "exempt
distributor," as defined in Treasury Regulation Section 1.163-
5(c)(2)(i)(D)(5), (iv) the United States office of an international
organization, as defined in Section 7701(a)(18) of the Internal Revenue Code
of 1986, as amended (the "Code") and the regulations thereunder, or (v) the
United States office of a foreign central bank, as defined in Section 895 of
the code and the regulations thereunder. In addition, Bearer Debt Securities
may not be delivered within the United States or its possessions in connection
with a sale that occurred during the restricted period. Any underwriters,
agents and dealers participating in the offering of Offered Securities must
agree that they will not offer any Bearer Debt Securities for sale or resale
in the United States or its possessions or the United States persons (other
than a person specified in clause (i), (ii), (iii), (iv) or (v) above) or
deliver Bearer Debt Securities within the United States or its possessions.
The term "Qualifying Foreign Branch of a United States Financial Institution"
means a branch located outside the United States of a United States financial
institution (as defined in Treasury Regulation Section 1.165-12(c)(1)(v)) that
provides a certificate within a reasonable time (or a blanket certificate in
the year the Debt Security is issued or either of the preceding two calendar
years) stating that it agrees to comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the Code and the regulations thereunder. The term
"United States person" means a citizen or resident of the United States, a
corporation, partnership or other entity created or organized in or under the
laws of the United States or any political subdivision thereof and an estate
or trust the income of which is subject to United States federal income
taxation regardless of its source; the term "United States" means the United
States of America (including the States and the District of Columbia), and the
term "possessions" includes, but is not limited to, Puerto Rico, the U.S.
Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana
Islands.
United States federal tax laws and regulations also require that the owner
of an obligation issuable in bearer form or the financial institution (as
defined in the preceding paragraph) or clearing organization through which the
owner directly or indirectly holds such obligation must provide the issuer of
the obligation with a certificate on the earlier of the date of the first
actual payment of interest on the obligation or the date of delivery by the
issuer of the obligation in definitive form stating that on such date the
obligation is owned by (a) a person that is not a United States person, (b) a
person described in clause (i) or (ii) of the preceding paragraph, or (c) a
financial institution for purposes of resale during the restricted period, but
not for resale directly or indirectly to a United States person or to a person
within the United States or its possessions. A certificate described in clause
(a) or (b) above may not be given with respect to an obligation that is owned
by a financial institution for purposes of resale during the restricted
period. When the required certificate is provided by a clearing organization,
the certificate must be based upon statements provided to it by its member
organizations. For purposes of the foregoing, a "temporary global security,"
as defined in Treasury Regulation Section 1.163-5(c)(1)(ii)(B), is not
considered to be an obligation in definitive form. In compliance with the
foregoing, if the Offered Securities are of a series of Debt Securities
issuable as Bearer Debt Securities, the delivery thereof (including delivery
in exchange for an interest in a Global Security) and the payment of interest
thereon, as applicable, will be subject to the satisfaction of certification
requirements that will be specified by the Company in accordance with the
Senior Indenture in connection with the establishment of such series and will
be described in the applicable Prospectus Supplement. (Sections 2.02 and 2.04
of the Senior Indenture) The Senior Indenture also provides that no Bearer
Debt Security (including a Global Security that represents Bearer Debt
Securities) will be mailed or otherwise delivered to any location in the
United States or its possessions. (Section 2.04 of the Senior Indenture)
Bearer Debt Securities and any coupons appertaining thereto will bear a
legend substantially to the following effect: "Any United States person who
holds this obligation will be subject to limitations under the United States
income tax laws, including the limitations provided in Sections 165(j) and
1287(a) of the Internal
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Revenue Code." Under Sections 165(j) and 1287(a) of the Code, holders that are
United States persons, with certain exceptions, will not be entitled to deduct
any loss on Bearer Debt Securities and must treat as ordinary income any gain
realized on the sale or other disposition (including the receipt of principal)
of Bearer Debt Securities.
PAYMENT
Unless otherwise indicated in an applicable Prospectus Supplement, payment
of principal of and any premium and interest on Bearer Debt Securities (other
than a Global Security) will be made, subject to any applicable laws and
regulations, at the offices of such paying Agent or paying Agents outside the
United States as the Company may designate from time to time, except that, at
the option of the Company (or, if so specified in the applicable Prospectus
Supplement, at the option of the holder), payment of interest may be made by
check (provided the same is not mailed to an address inside the United States)
or by wire transfer to an account located outside the United States maintained
by the payee. (Sections 2.13 and 4.01 of the Senior Indenture) Unless
otherwise indicated in an applicable Prospectus Supplement, payment of
interest on Bearer Debt Securities on any interest payment date will be made
only against surrender of the coupon relating to such interest payment date.
(Section 2.13 of the Senior Indenture) No payment with respect to any Bearer
Debt Security will be made at any office or agency of the Company in the
United States or by check mailed to any address in the United States or by
transfer to an account maintained in the United States. Notwithstanding the
foregoing, payments of principal of and any premium and interest on Bearer
Debt Securities denominated and payable in U.S. Dollars will be made at the
office of the Company's Paying Agent in the Borough of Manhattan, The City of
New York, if (but only if) payment of the full amount thereof in U.S. Dollars
at all offices or agencies outside the United States is illegal or effectively
precluded by exchange controls or other similar restrictions. (Section 4.01 of
the Senior Indenture)
Unless otherwise indicated in an applicable Prospectus Supplement, payment
of principal of and any premium and interest on Registered Debt Securities
(other than a Global Security) will be made at the office of such Paying Agent
or paying Agents as the Company may designate from time to time, except that
at the option of the Company payment of any interest may be made by check
mailed to the address of the person entitled thereto as such address shall
appear in the security register or, if so specified with respect to the
Registered Debt Securities of any series issued under the Senior Indenture, by
wire transfer to an account designated by such person. Payment of any
installment of interest on Registered Debt Securities will be made to the
person in whose name such Registered Debt Security is registered at the close
of business on the regular record date (or, in the case of defaulted interest,
special record date) for such interest payment. (Section 2.13 of the
Indentures)
All moneys paid by the Company to a Paying Agent for the payment of
principal of or any premium or interest on any Debt Security which remain
unclaimed at the end of two years after such principal, premium or interest
shall have become due and payable will be repaid to the Company and the holder
of such Debt Security or any coupon appertaining thereto will thereafter look
only to the Company for payment thereof unless an applicable abandoned
property law designates another person. (Section 8.03 of the Indentures)
AMENDMENT, SUPPLEMENT, WAIVER
Subject to certain exceptions, the Indentures or the Debt Securities may be
amended or supplemented, and any past default or compliance with any provision
may be waived, insofar as the Debt Securities of any series are concerned,
with the consent of the holders of a majority in aggregate principal amount of
the outstanding Debt Securities of such series. (Sections 6.04 and 9.02 of the
Indentures) Without the consent of any holder of Debt Securities, the Company
and the Trustee may amend or supplement the Indentures or the Debt Securities
to cure any ambiguity, defect or inconsistency, to permit or facilitate the
issuance of Debt Securities in bearer form or to provide for uncertificated
Debt Securities in global form in addition to certificated Debt Securities (so
long as any "registration-required obligation," within the meaning of Section
163(f)(2) of the Code, is in registered form for purposes of the Code) or to
make certain other specified changes or any change that does not materially
adversely affect the rights of any holder of Debt Securities. (Section 9.01 of
the Indentures)
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SUCCESSOR CORPORATION
The Company may not consolidate with or merge into, or transfer its
properties and assets substantially as an entirety to, another corporation
unless (i) the successor corporation, which shall be a corporation organized
under the laws of the United States or a State thereof, assumes by
supplemental indenture all the obligations of the Company under the Debt
Securities and the Indentures, and (ii) after giving effect to such
transaction, no Event of Default shall have occurred and be continuing.
Thereafter, unless otherwise specified in the Prospectus Supplement, all such
obligations of the Company terminate. (Section 5.01 of the Indentures)
DEFAULTS AND REMEDIES
An Event of Default with respect to Debt Securities of any series is: (i)
default for 30 days in payment of any interest on the Debt Securities of that
series; (ii) default in payment of principal, premium or any other amount
(other than interest) due in respect of the Debt Securities of that series at
maturity, upon redemption (including default in the making of any mandatory
sinking fund payment), upon purchase by the Company at the option of the
holder or otherwise; (iii) failure by the Company for 30 days after receipt of
written notice as provided in the Indentures to comply with any of its other
agreements in the Indentures (other than agreements expressly included in the
Indentures solely for the benefit of a series of Debt Securities other than
that series or expressly made inapplicable to the Debt Securities of such
series) or the Debt Securities of that series; (iv) (for purposes of the
Senior Indenture only) acceleration of the maturity of any Debt of the Company
(including Senior Debt Securities of any other series) if the aggregate
principal amount (or, if applicable, issue price plus accrued original issue
discount) of the Debt the maturity of which has been accelerated exceeds five
percent (5%) of the aggregate principal amount of the Company's Funded Debt
then outstanding and such Debt is not paid, or such acceleration is not
rescinded or annulled or such acceleration is not contested by appropriate
proceedings and all consequences thereof that would have a material adverse
effect on the Company stayed, within 30 days after receipt of written notice
as provided in the Senior Indenture; provided, however, that if, after the
expiration of such 30-day period, the event of default that resulted in the
acceleration of the maturity of such Debt of the Company is remedied or cured
by the Company or waived by the holders of such Debt in any authorized manner
or otherwise ceases to exist, then the Event of Default described in this
clause (iv) resulting from such acceleration will be deemed cured and not
continuing; and (v) certain events of bankruptcy or insolvency. (Section 6.01
of the Indentures) If an Event of Default occurs with respect to the Debt
Securities of any series and is continuing, the Trustee or the holders of at
least 25% in aggregate principal amount of the Debt Securities of that series
may declare to be due and payable immediately (i) the principal amount of that
series (or, if the Debt Securities of that series are Original Issue Discount
Securities, that portion of the principal amount specified in the terms of
that series) and (ii) accrued interest, if any, thereon. The Indentures
provide for automatic acceleration of the maturity of such amounts upon the
occurrence of certain events of bankruptcy or insolvency. (Section 6.02 of the
Indentures) The Senior Indenture provides that a declaration of acceleration
of the maturity of the Senior Debt Securities of any series as a result of an
Event of Default described in clause (iv) above will be automatically annulled
if (x) the acceleration of the Debt that is the subject of such Event of
Default is declared void ab initio as a result of the Company's contest
thereof or (y) the declaration of acceleration of such Debt is rescinded or
annulled in any manner authorized by the instrument evidencing or creating
such Debt within 90 days of the declaration of acceleration of the Senior Debt
Securities of such series and, in the case of clause (y), the annulment of the
declaration of acceleration under the Senior Indenture would not conflict with
any judgment or decree, and, in the case of either clause (x) or (y), all
other existing Events of Default (other than the non-payment of amounts that
have become due with respect to such Senior Debt Securities solely by such
acceleration) with respect to Senior Debt Securities of that series have been
cured or waived. (Section 6.02 of the Senior Indenture) Holders of Debt
Securities may not enforce the Indentures or the Debt Securities except as
provided in the Indentures. (Section 6.06 of the Indentures) The Trustee may
require indemnity satisfactory to it before it enforces the Indenture or the
Debt Securities. (Section 7.01 of the Indentures) Subject to certain
limitations, holders of a majority in aggregate principal amount of the Debt
Securities of any series may direct the Trustee in its exercise of any trust
or power with respect to the Debt Securities of that series. (Section 6.05 of
the Indentures) The Trustee may withhold from holders of Debt Securities
notice of any continuing default (except a default in payment of principal,
premium, if any, interest or other amounts due) if it determines that
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withholding notice is in their interest. (Section 7.05 of the Indentures) The
Company is required to file periodic reports with the Trustee as to the
absence of default. (Section 4.07 of the Senior Indenture and Section 4.03 of
the Senior Subordinated and Subordinated Indentures)
NO PERSONAL LIABILITY
No past, present or future director, officer, employee or stockholder, as
such, of the Company or any successor thereof shall have any liability for any
obligations of the Company under the Debt Securities or the Indentures or for
any claim based on, in respect of, or by reason of, such obligations or their
creation. Each holder of Debt Securities by accepting a Debt Security waives
and releases all such liability. The waiver and release are part of the
consideration for the issue of the Debt Securities. (Section 11.11 of the
Senior Indenture and Section 12.11 of the Senior Subordinated and Subordinated
Indentures)
SATISFACTION AND DISCHARGE
The Company's obligations under the Debt Securities of any series and the
applicable Indenture with respect to such series (except for the obligation to
pay the principal of and premium and interest, if any, on the Debt Securities
of such series and certain other specified obligations) will be satisfied and
discharged in accordance with the provisions of the Indenture if either (i)
all Debt Securities of such series and coupons, if any, appertaining thereto
previously authenticated and delivered (other than destroyed, lost or
wrongfully-taken Debt Securities or coupons which have been replaced or paid,
Debt Securities or coupons for whose payment money has theretofore been held
in trust and, after remaining unclaimed for two years, has been repaid to the
Company, and certain coupons appertaining to Bearer Securities surrendered for
exchange, redemption or purchase) have been delivered to the Trustee for
cancellation or (ii) the Company irrevocably deposits in trust with the
Trustee money or U.S. Government Obligations (or, in the case of the Senior
Indenture, Government Obligations) sufficient to pay the principal of and
premium and interest, if any, on all Debt Securities of such series and
coupons, if any, appertaining thereto not theretofore cancelled or delivered
to the Trustee for cancellation (other than Debt Securities and coupons
referred to in the parenthetical in clause (i) above) to maturity or
redemption, as the case may be. (Section 2.01 of the Indentures)
THE TRUSTEES
The Bank of New York acts as depositary for funds of, makes loans to, and
performs other services for the Company and certain of its affiliates in the
normal course of business and acts as trustee with respect to certain
outstanding senior indebtedness of the Company. The Bank of New York serves as
transfer agent and registrar for each series of the Parent's common stock and
for the Parent's Class B 6% Cumulative Redeemable Exchangeable Junior
Preferred Stock. John C. Malone, a director of the Company, is a director of
The Bank of New York.
Information with respect to the Trustees under the Senior Subordinated
Indenture and the Subordinated Indenture shall be provided in the applicable
Prospectus Supplement.
Any Trustee in its individual or any other capacity may become the owner or
pledgee of Debt Securities and may otherwise deal with the Company or its
Affiliates with the same rights it would have if it were not the Trustee
provided it complies with the terms of the Indenture. (Section 7.03 of the
Indentures)
ADDITIONAL INFORMATION
The Indentures (or form thereof, as the case may be) are exhibits to the
Registration Statement. Anyone who receives this Prospectus may obtain copies
of the Indentures (or form thereof, as the case may be) without charge by
writing to Stephen M. Brett, Esq., Senior Vice President of the Company, at
the address set forth under "The Company." The foregoing summaries of certain
provisions of the Indentures do not purport to be complete and are subject to,
and qualified in their entirety by reference to, all provisions of the
Indentures, including the definitions of certain terms. Wherever particular
provisions or defined terms of the Indentures are referred to, such provisions
or defined terms are incorporated herein by reference.
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PLAN OF DISTRIBUTION
The Company may sell the Offered Securities on a negotiated or competitive
bid basis to or through underwriters or dealers, and also may sell the Offered
Securities directly to other purchasers or through agents.
The distribution of the Offered Securities may be effected from time to time
in one or more transactions at a fixed price or prices, which may be changed,
or at market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices.
If Offered Securities are offered on a competitive bid basis, the Company
will receive bids by telephone or otherwise prior to a designated time. Each
bid will be required to be made for all Offered Securities and the Company
will reserve the right to reject all bids. If any bid is accepted, the Company
will accept the qualified bid which in its sole and final determination will
result in the lowest annual cost of money to it for the Offered Securities. No
underwriter will be entitled to submit or participate as a bidder in more than
one bid.
If an underwriter or underwriters are utilized in the sale, the Company will
execute an underwriting agreement with such underwriters and the names of the
underwriters and the terms of the transaction will be set forth in the
Prospectus Supplement, which will be used by the underwriters to make resales
of the Offered Securities. Unless otherwise indicated in the Prospectus
Supplement, the obligations of any underwriters to purchase the Offered
Securities will be subject to certain conditions precedent and the
underwriters will be obligated to purchase all of the Offered Securities if
any are purchased.
If a dealer is utilized in the sale, the Company will sell the Offered
Securities to the dealer as principal. The dealer may then resell the Offered
Securities to the public at varying prices to be determined by such dealer at
the time of resale.
Offers to purchase Offered Securities may be solicited by the Company or
agents designated by the Company from time to time. Unless otherwise indicated
in the Prospectus Supplement, any such agent will be acting on a best efforts
basis for the period of its appointment.
Each underwriter, dealer and agent participating in the distribution of any
Offered Securities which are issuable in bearer form will agree that it will
not, directly or indirectly, offer any Offered Securities in bearer form for
sale or resale in the United States or its possessions or to United States
persons (subject to certain exceptions) or deliver any Offered Securities in
bearer form within the United States or its possessions. See "Description of
Debt Securities--Limitations on Issuance of Bearer Debt Securities."
In connection with the sale of the Offered Securities, underwriters, dealers
and agents may receive compensation in the form of discounts, concessions or
commissions from the Company or from purchasers of the Offered Securities for
whom they may act as agents. Underwriters, dealers and agents that participate
in the distribution of the Offered Securities may be deemed to be underwriters
as that term is defined in the Securities Act, and any discounts or
commissions received by them from the Company and any profits on the resale of
the Offered Securities by them may be deemed to be underwriting discounts and
commissions under the Securities Act. Any such person who may be deemed to be
an underwriter will be identified and any such compensation received from the
Company will be described in the Prospectus Supplement.
If so indicated in the Prospectus Supplement, the Company will authorize
agents and underwriters to solicit offers by certain specified institutions to
purchase Offered Securities from the Company at the public offering price set
forth in the Prospectus Supplement pursuant to delayed delivery contracts
providing for payment and delivery on a specified date in the future.
Institutions with whom such contracts, when authorized, may be made include
commercial and savings banks, insurance companies, pension funds, investment
companies, educational and charitable institutions and other institutions but
shall in all cases be subject to the approval of the Company. Such contracts
will be subject only to those conditions set forth in the Prospectus
Supplement and the Prospectus Supplement will set forth the commission payable
for solicitation of such contracts.
21
<PAGE>
Agents, underwriters and dealers may be entitled under agreements entered
into with the Company to indemnification by the Company against certain civil
liabilities, including liabilities under the Securities Act, or to
contribution with respect to payments which the agents, underwriters or
dealers may be required to make
in respect thereof. Agents, underwriters and dealers may be customers of,
engage in transactions with, or perform services for the Company in the
ordinary course of business.
The anticipated place and time of delivery for the Offered Securities will
be set forth in the Prospectus Supplement.
LEGAL MATTERS
The legality of the Debt Securities offered hereby will be passed upon for
the Company by Baker & Botts, L.L.P., 885 Third Avenue, New York, New York
10022-4834. Jerome H. Kern, a partner of Baker & Botts, L.L.P. is a director
of the Parent. Mr. Kern holds options to purchase shares of the Parent's
Series A TCI Group Common Stock and Series A Liberty Media Group Common Stock.
EXPERTS
The consolidated balance sheets of TCI Communications, Inc. (formerly Tele-
Communications, Inc.) and subsidiaries as of December 31, 1994 and 1993, and
the related consolidated statements of operations, stockholder's(s') equity,
and cash flows for each of the years in the three year period ended December
31, 1994, and the related financial statement schedules, which appear in TCI
Communications, Inc.'s Annual Report on Form 10-K for the year ended December
31, 1994, as amended, have been incorporated by reference herein in reliance
upon the reports, dated March 27, 1995, of KPMG Peat Marwick LLP, independent
certified public accountants, incorporated by reference herein, and upon the
authority of said firm as experts in accounting and auditing. The reports of
KPMG Peat Marwick LLP covering the December 31, 1994 consolidated financial
statements refer to the adoption of Statement of Financial Accounting
Standards No. 115, "Accounting for Certain Investments in Debt and Equity
Securities," in 1994.
The financial statements of TeleCable Corporation as of December 31, 1993
and 1992 and for each of the two years in the period ended December 31, 1993
incorporated in this Prospectus by reference to TCI Communications Inc.'s
Current Report on Form 8-K dated August 26, 1994, have been so incorporated in
reliance on the report of Price Waterhouse LLP, independent accountants, given
on the authority of said firm as experts in auditing and accounting.
22
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCES AND DISTRIBUTION.
The aggregate estimated expenses, other than underwriting discounts and
commissions, in connection with all offerings pursuant to this Registration
Statement are currently anticipated to be as follows:
<TABLE>
<S> <C>
Registration Fee............................................... $ 400,000
Blue Sky Fees and Expenses (including counsel fees)............ 20,000
Printing and Engraving Expenses................................ 100,000
Legal Fees and Expenses........................................ 200,000
Accounting Fees and Expenses................................... 75,000
Fees of Indenture Trustee...................................... 45,000
Rating Agency Fees............................................. 270,000
Miscellaneous.................................................. 40,000
----------
Total...................................................... $1,150,000
==========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law provides, generally,
that a corporation shall have the power to indemnify any person who was or is
a party or is threatened to be made a party to any action, suit or proceeding
(except actions by or in the right of the corporation) by reason of the fact
that such person is or was a director or officer of the corporation against
all expenses, judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or proceeding
if he acted in good faith and in a manner he reasonably believed to be in or
not opposed to the best interest of the corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct
was unlawful. A corporation may similarly indemnify such person for expenses
actually and reasonably incurred by him in connection with the defense or
settlement of any action or suit by or in the right of the corporation,
provided such person acted in good faith and in a manner be reasonably
believed to be in or not opposed to the best interests of the corporation,
and, in the case of claims, issues and matters as to which such person shall
have been adjudged liable to the corporation, provided that a court shall have
determined, upon application, that, despite the adjudication of liability but
in view of all of the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which such court shall deem
proper.
Section 102(b)(7) of the Delaware General Corporation Law provides,
generally, that the certificate of incorporation may contain a provision
eliminating or limiting the personal liability of a director to the
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, provided that such provision may not eliminate or limit
the liability of a director (i) for any breach of the director's duty of
loyalty to the corporation or its stockholders, (ii) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation
of law, (iii) under section 174 of Title 8, or (iv) for any transaction from
which the director derived an improper personal benefit. No such provision may
eliminate or limit the liability of a director for any act or omission
occurring prior to the date when such provision becomes effective.
Articles SEVENTH and EIGHTH of the Company's Restated Certificate of
Incorporation provide as follows:
"SEVENTH. Any person who was or is a party or is threatened to be made a
party to any threatened, pending, or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (whether or not by
or in the right of the corporation) by reason of the fact that he is or was
a director, officer, incorporator, employee, or agent of the Corporation,
or is or was serving at the request of the Corporation as a director,
officer, incorporator, employee, partner, trustee, or agent of another
corporation, partnership, joint venture, trust, or other enterprise
(including an employee benefit plan), shall be entitled to
II-1
<PAGE>
be indemnified by the Corporation to the full extent then permitted by law
against expenses (including attorneys' fees), judgments, fines (including
excise taxes assessed on a person with respect to an employee benefit
plan), and amounts paid in settlement incurred by him in connection with
such action, suit, or proceeding. Such right of indemnification shall inure
whether or not the claim asserted is based on matters which antedate the
adoption of this Article SEVENTH. Such right of indemnification shall
continue as to a person who has ceased to be a director, officer,
incorporator, employee, partner, trustee, or agent and shall inure to the
benefit of the heirs and personal representatives of such a person. The
indemnification provided by this Article SEVENTH shall not be deemed
exclusive of any other rights which may be provided now or in the future
under any provision currently in effect or hereafter adopted of the bylaws,
by any agreement, by vote of stockholders, by resolution of disinterested
directors, by provision of law, or otherwise.
EIGHTH. No director of the Corporation shall be liable to the Corporation
or any of its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of the
director's duty of loyalty to the Corporation or its stockholders, (ii) for
acts or omissions not in good faith or which involve intentional misconduct
or a knowing violation of law, (iii) under Section 174 of the Delaware
General Corporation Law, or (iv) for any transaction from which the
director derived an improper personal benefit."
The Company may purchase liability insurance policies covering its directors
and officers.
In addition, pursuant to Section 6 of the form of Underwriting Agreement,
the Underwriter or Underwriters will agree to indemnify and hold harmless the
Company, its directors and officers and each person, if any, who controls the
Company within the meaning of the Securities Act of 1933, as amended, against
certain civil liabilities including civil liabilities under the Securities
Act.
ITEM 16. EXHIBITS.
<TABLE>
<C> <S>
1.1 Form of Underwriting Agreement.
4.1 Form of Senior Indenture between the Registrant and The Bank of New York,
as Trustee, as amended. (Incorporated herein by reference to Exhibit 4.1
to Registration Statement on Form S-3 No. 33-63139.)
4.2 Form of Senior Subordinated Indenture. (Incorporated herein by reference
to Exhibit 4.2 to Registration Statement on Form S-3 No. 33-63139.)
4.3 Form of Subordinated Indenture. (Incorporated herein by reference to
Exhibit 4.3 to Registration Statement on Form S-3 No. 33-63139.)
4.4 Restated Certificate of Incorporation of the Company dated as of August
4, 1994. (Incorporated herein by reference to Exhibit 3.3 of the
Company's Annual Report on Form 10-K for the year ended December 31,
1994, as amended by Form 10-K/A (Amendment No. 1) (Commission File No.
0-5550)).
4.5 Bylaws of the Company as adopted August 4, 1994 (Incorporated herein by
reference to Exhibit 3.4 of the Company's Annual Report on Form 10-K for
the year ended December 31, 1994, as amended by Form 10-K/A (Amendment
No. 1) (Commission File No. 0-5550)).
5 Opinion of Baker & Botts, L.L.P. regarding the legality of the securities
being registered.
12 Calculation of Ratios of Earnings to fixed Charges of the Company.
23.1 Consent of KPMG Peat Marwick LLP.
23.2 Consent of Price Waterhouse, LLP.
23.3 Consent of Baker & Botts, L.L.P. (included in Exhibit 5).
24 Power of Attorney (included on page II-6).
</TABLE>
II-2
<PAGE>
<TABLE>
<C> <S>
25.1 Statement of Eligibility of The Bank of New York, as Trustee, on Form T-
1.
25.2 Statement of Eligibility of the Trustee under the Senior Subordinated
Indenture, on Form T-1.+
25.3 Statement of Eligibility of the Trustee under the Subordinated Indenture,
on
Form T-1.+
</TABLE>
- --------
+ To be filed separately pursuant to Section 305(b)(2) of the Trust Indenture
Act of 1939, as amended, and the rules and regulations prescribed by the
Commission thereunder.
ITEM 17. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement.
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20 percent change
in the maximum aggregate offering price set forth in the "Calculation
of Registration Fee" table in the effective registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
Provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant
pursuant to section 13 or section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(4) That, for purposes of determining any liability under the Securities
Act of 1933, each filing of the Registrant's annual report pursuant to
section 13(a) or 15(d) of the Securities Exchange Act of 1934 that is
incorporated by reference in the registration statement shall be deemed to
be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(5) If any of the Offered Securities are offered at competitive bidding,
(a) to use its best efforts to distribute prior to the opening of bids, to
prospective bidders, underwriters, and dealers, a reasonable number of
copies of a prospectus which at that time meets the requirements of section
10(a) of the Act, and relating to the securities offered at competitive
bidding, as contained in the registration statement together with any
supplements thereto and (b) to file an amendment to the registration
statement reflecting the results of bidding, the terms of the reoffering
and related matters to the extent required by the applicable form, not
later than the first use, authorized by the issuer after the opening of
bids, of a prospectus relating to the securities offered at competitive
bidding, unless no further public offering of such securities by the issuer
and no reoffering of such securities by the purchasers is proposed to be
made.
II-3
<PAGE>
(6) To file an application for the purpose of determining the eligibility
of the trustee to act under subsection (a) of Section 310 of the Trust
Indenture Act ("TIA") in accordance with the rules and regulations
prescribed by the Commission under Section 305(b)(2) of the TIA.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions described under Item 15 above, or
otherwise, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act of 1933 and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities
being registered, the Registrant will, unless in the opinion of its counsel
the matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act of 1933 and will be
governed by the final adjudication of such issue.
II-4
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE
REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED, IN THE CITY OF GREENWOOD VILLAGE, STATE OF COLORADO, ON NOVEMBER
15, 1995.
TCI Communications, Inc.
/s/ Stephen M. Brett
By: _________________________________
NAME: STEPHEN M. BRETT
TITLE: EXECUTIVE VICE-PRESIDENT
II-5
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Stephen M. Brett, Esq., and Elizabeth M.
Markowski, Esq., and each of them, his true and lawful attorneys-in-fact and
agents with full power of substitution and re-substitution for him and in his
name, place and stead, in any and all capacities, to sign any or all
amendments (including post-effective amendments) to this Registration
Statement and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents and each of them full power and
authority, to do and perform each and every act and thing requisite or
necessary to be done in and about the premises, to all intents and purposes
and as fully as they might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or their substitutes may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated:
SIGNATURE TITLE DATE
/s/ Bob Magness Chairman of the November 15,
- ------------------------------------- Board and Director 1995
(BOB MAGNESS)
/s/ John C. Malone Director November 15,
- ------------------------------------- 1995
(JOHN C. MALONE)
Director
- -------------------------------------
(DONNE F. FISHER)
/s/ Brendan R. Clouston President (Principal November 15,
- ------------------------------------- Executive Officer) 1995
(BRENDAN R. CLOUSTON)
/s/ Gary K. Bracken Senior Vice November 15,
- ------------------------------------- President and 1995
(GARY K. BRACKEN) Controller
(Principal
Financial and
Accounting Officer)
II-6
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER EXHIBIT PAGE
------- ------- ------------
<C> <S> <C>
1.1 Form of Underwriting Agreement.
4.1 Form of Senior Indenture between the Registrant and The
Bank of New York, as Trustee, as amended.
(Incorporated by reference to Exhibit 4.1 to
Registration Statement on Form S-3 No. 33-63139.)
4.2 Form of Senior Subordinated Indenture. (Incorporated by
reference to Exhibit 4.2 to Registration Statement on
Form S-3 No. 33-63139.)
4.3 Form of Subordinated Indenture. (Incorporated by
reference to Exhibit 4.3 to Registration Statement on
Form S-3 No. 33-63139.)
4.4 Restated Certificate of Incorporation of the Company
dated as of August 4, 1994. (Incorporated herein by
reference to Exhibit 3.3 of the Company's Annual
Report on Form 10-K for the year ended December 31,
1994, as amended by Form 10-K/A (Amendment No. 1)
(Commission File No. 0-5550)).
4.5 Bylaws of the Company as adopted August 4, 1994
(Incorporated herein by reference to Exhibit 3.4 of
the Company's Annual Report on Form 10-K for the year
ended December 31, 1994, as amended by Form 10-K/A
(Amendment No. 1) (Commission File No. 0-5550)).
5 Opinion of Baker & Botts, L.L.P. regarding the legality
of the securities being registered.
12 Calculation of Ratios of Earnings to fixed Charges of
the Company.
23.1 Consent of KPMG Peat Marwick LLP.
23.2 Consent of Price Waterhouse LLP.
23.3 Consent of Baker & Botts, L.L.P (included in Exhibit
5).
24 Power of Attorney (included on page II-6).
25.1 Statement of Eligibility of The Bank of New York as
Trustee, on Form T-1.
25.2 Statement of Eligibility of the Trustee under the
Senior Subordinated Indenture, on Form T-1.+
25.3 Statement of Eligibility of the Trustee under the
Subordinated Indenture, on Form T-1.+
</TABLE>
- --------
+ To be filed separately pursuant to Section 305(b)(2) of the Trust Indenture
Act of 1939, as amended, and the rules and regulations prescribed by the
Commission thereunder.
<PAGE>
EXHIBIT 1.1
UNDERWRITING AGREEMENT
[Date]
[To the Underwriter or Underwriters]
Dear Sirs:
TCI Communications, Inc. (the "Company") proposes to issue and sell [ ]
principal amount of its (the "Offered Securities") pursuant to an
indenture dated as of , 199 ([as amended and] as the same may be [further]
amended or supplemented, the "Indenture"), with , as trustee (the
"Trustee"). Each Offered 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 the one or more 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 or, in the event
no Representatives shall have been appointed, in your capacity as
Underwriters. Any reference to you in this Agreement shall be solely in your
capacity as Representatives.] The Company confirms as follows its agreement
with the Underwriter[s]:
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- ), including a prospectus,
relating to debt securities of the Company ("Debt Securities") issuable from
time to time in one or more series, [including the Offered Securities], which
has become effective under the Act, and will promptly file with the Commission
a prospectus supplement specifically relating to the Offered 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 included in the Registration Statement. The
term "Prospectus" means the Basic Prospectus together with the prospectus
supplement specifically relating to the Offered Securities as filed with the
Commission pursuant to Rule 424 under the Act and any information deemed to be
a part thereof pursuant to Rule 434 under the Act. The term "preliminary
prospectus" means any preliminary prospectus supplement specifically relating
to the Offered 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 you, and
upon the basis of the representations, warranties and agreements of the
Company herein contained and subject to the terms and conditions of this
Agreement [each of] the Underwriter[s] agrees to purchase from the Company,
[severally and not jointly], the [principal amount] [number] of Offered
Securities set forth opposite your [respective] names in Exhibit B, at a
purchase price per Offered Security of $ , plus accrued [interest] [original
issued discount] from .
With respect to any of the Offered Securities purchased by you hereunder
that you continue to own or hold at any time on or after the 90th day
following the Closing Date (as defined in Section 3), you agree that upon
<PAGE>
receipt of written notice from the Company of its intention to bid for or
purchase any Offered Security or any security of the same class and series as
the Offered 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 Securities, you will, and
will cause your "affiliated purchasers" (as defined in said Rule) to, cease
distributing the Offered 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 Securities
shall be made at 10:00 A.M., New York time, on (such time and date are
referred to herein as the "Closing Date"), at the office of New York, New
York. The Closing Date and the place of delivery of and payment for the
Offered Securities may be varied by agreement between you and the Company.
Delivery of the Offered 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 against payment by you 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 Securities, the Company agrees to make
the Offered 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
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 Securities for offer or sale in any jurisdiction, and if any
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).
(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 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 each Underwriter, without charge,
as many copies of the Prospectus or any amendment or supplement thereto as
such Underwriter may reasonably request. The Company consents to the use of
the
2
<PAGE>
Prospectus or any amendment or supplement thereto by the Underwriters and
by all dealers to whom the Offered Securities may be sold, both in
connection with the offering or sale of the Offered 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
each Underwriter, without charge, such number of copies thereof as such
Underwriter may reasonably request. 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 Securities by the
Underwriter[s], the Company will cooperate with you and your counsel in
connection with the registration or qualification of the Offered Securities
for offer and sale under the securities or Blue Sky laws of, and the
determination of the eligibility of the Offered 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 Securities under such
securities or Blue Sky laws and in connection with the determination of the
eligibility of the Offered 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 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 Securities (other than transfer taxes)
and the execution and 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, including any term sheets delivered by the Company
pursuant to Rule 434 under the Act, as may be requested for use in
connection with the offering and sale of the Offered Securities by dealers
to whom Offered 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 Securities.
(h) If this Agreement is terminated by you because any condition to the
obligations of 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 the
Underwriters for all out-of-pocket expenses (including the fees and
expenses of your counsel) reasonably incurred by the Underwriters in
connection herewith. The Company will not in any event be liable to 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 with a
maturity of more than one year, including additional Offered Securities,
pursuant to a public offering without your prior written consent.
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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 or term sheet, if any, relating to the
Offered Securities, filed pursuant to Rule 424 or Rule 434 under the Act,
will comply when so filed in all material respects with the Act; and when
the Prospectus or any such term sheet is first filed with the Commission
pursuant to Rule 424 or Rule 434 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 or Rule 434 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 or Rule 434 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 you expressly for
use therein or to that part of the Registration Statement which consists of
the Statements of Eligibility on Form T-1 under the Trust Indenture Act of
the trustees for the Debt Securities;
(c) the Offered Securities and the Indenture have been duly authorized by
the Company and each will conform to the descriptions thereof in the
Prospectus;
(d) the issuance and sale of the Offered 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
Securities by the Underwriters or by any dealers that participate in the
distribution thereof, the Company will comply with all requirements under
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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 you expressly for use
therein; provided, however, the Company shall not indemnify any Underwriter or
any person who controls such Underwriter from any such losses, claims, damages
or liabilities alleged by any person who purchased Offered 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
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 any Underwriter
or any person who controls such Underwriter, after such time as the Company
advised you 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.
If any action or proceeding (including any governmental investigation) shall
be brought or asserted against any Underwriter or any person controlling such
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 such Underwriter and the
payment of all expenses. Any omission so to notify the Company shall not,
however, relieve the Company from any liability which it may have to any
indemnified party otherwise than under this Section 6. Any such Underwriter or
any such controlling person 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 such Underwriter 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 its counsel that there may be a conflict of interest between it 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 on
behalf of 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
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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 such
Underwriter. 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
such Underwriter and any such controlling person from and against any loss or
liability by reason of such settlement or judgment.
Each Underwriter [severally] agree[s] 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 such Underwriter, but only with respect to information
furnished in writing by such indemnifying party 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 any
Underwriter, such Underwriter 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 such Underwriter, 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 you
on the other hand from the offering of the Offered 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 you 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 you on the other in connection
with the offering of the Offered Securities shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Offered
Securities received by the Company bear to the total underwriting discounts
received by you in respect thereof. The relative fault of the Company on the
one hand and you 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 alleged omission to state a material fact relates to
information supplied by the Company or by you 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 each Underwriter 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, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Offered Securities were offered to the
public exceeds the amount of any damages which it 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.
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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 the Underwriters, by or on behalf of any
person controlling such Underwriters or by or on behalf of the Company, (b)
acceptance of any of the Offered Securities and payment therefor or (c) any
termination of this Agreement.
7. Conditions of the Underwriters' Obligations: The Underwriters'
obligations 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 you
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
[(with respect to Senior Debt Securities only), 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) you shall have received opinions, dated the Closing Date and
reasonably satisfactory to counsel for the Underwriters, (A) from Messrs.
Cole, Raywid & Braverman, L.L.P. or such other special communications
counsel for the Company as may be reasonably satisfactory to you, (B) from
the General Counsel of the Company to the following effect and covering
such additional matters as you 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 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 Securities and the sale
of the Offered Securities by the Company in accordance with the terms
of this Agreement have been taken;
(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 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,
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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 LLC or (ii) the
federal securities laws, 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 LLC, special counsel to the Company, to
the following effect and covering such additional matters as you may
reasonably request:
(i) the execution and delivery of this Agreement and the Indenture,
the issuance of the Offered 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 you, to the
following effect and covering such additional matters as you 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;
(iii) the Offered Securities when executed and authenticated in
accordance with the terms of the Indenture and delivered to and paid
for by 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 Securities and the Indenture conform in all material
respects as to legal matters to the descriptions thereof in the
Prospectus.
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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
Securities and the Indenture or relate to us. However, we have 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, as applicable in light of the
circumstances under which they were made,) as 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, LLC 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 you and
counsel for the Underwriters;
(c) you shall have received on the Closing Date from Messrs. , your
counsel, 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, you shall have received on the Closing Date from
Messrs. , or from the counsel acceptable to you, an opinion with respect
to the Registration Statement and the Prospectus in the form customarily
given by such firm;
(d) on the Closing Date you shall have received a letter addressed to you
from KPMG Peat Marwick, LLP independent auditors for the Company,
reasonably satisfactory to you;
(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 your
reasonable judgment, is so material and adverse that it would be
impracticable to proceed with the public offering or delivery of the
Offered Securities on the terms and in the manner contemplated by the
Prospectus.
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8. Termination of Agreement: The obligation of the Underwriters to purchase
the Offered Securities may be terminated at any time prior to the Closing Date
by notice to the Company from you, without liability on your part 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 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 Securities
that it or they are obligated to purchase hereunder (the "Defaulted
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 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 Securities does not exceed 10%
of the aggregate principal amount of Offered 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 Securities exceeds 10% of the
aggregate principal amount of Offered 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 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 Securities.
If the principal amount of Defaulted Securities exceeds 10% of the aggregate
principal amount of Offered 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 Securities, this Agreement shall
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.]
[9.][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: Bernard W. Schotters, Senior Vice President--Finance,
or (b) to you at your office at , attention of: . 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
Securities from any Underwriter.
10
<PAGE>
This Agreement shall be governed by and construed in accordance with the
internal laws of the State of New York.
Please confirm that the foregoing correctly sets forth the agreement between
the Company and the Underwriters.
Very truly yours,
TCI Communications, Inc.
By: _____________________
Name:
Title:
Confirmed and Accepted as
of the date first above
mentioned.
[Underwriter or Underwriters]
By: ___________________
Name:
Title:
11
<PAGE>
EXHIBIT A
DEBT SECURITIES
Designation:
Dated Date:
Maturity [and provisions for extension, if any]:
Authorized Denominations:
[Interest rate (or method of computation), Interest Payment Dates and Record
Dates or, if Original Discount Securities, issue price and yield to maturity:]
[Sinking Fund:]
[Optional Redemption:]
[Provisions for purchase or exchange at the option of the Holder or the
Company:]
[Other specific terms:]
<PAGE>
EXHIBIT B
PRINCIPAL AMOUNT
UNDERWRITER OF OFFERED SECURITIES
----------- ---------------------
<PAGE>
EXHIBIT 5
NOVEMBER 15, 1995
TCI Communications, Inc.
Terrace Tower II
5619 DTC Parkway
Englewood, Colorado 80111-3000
Gentlemen:
Reference is made to the Registration Statement on Form S-3 (the
"Registration Statement") filed by TCI Communications, Inc., a Delaware
corporation (the "Company"), in connection with the proposed offering from
time to time of debt securities of the Company (the "Debt Securities") for a
maximum aggregate initial offering price of $2,000,000,000.
As described in the Registration Statement, the Company may offer Senior
Debt Securities to be issued under an Indenture between the Company and The
Bank of New York, as Trustee (the "Senior Indenture"), Senior Subordinated
Debt Securities to be issued under an Indenture between the Company and a
trustee to be named therein (the "Senior Subordinated Indenture"), or
Subordinated Debt Securities to be issued under an Indenture between the
Company and a trustee to be named therein (the "Subordinated Indenture"), or
any combination of Senior, Senior Subordinated and Subordinated Debt
Securities. We have participated in the preparation and qualification under
the Trust Indenture Act of 1939, as amended, of each of the foregoing
Indentures. The Senior Indenture, the Senior Subordinated Indenture and the
Subordinated Indenture are herein referred to individually as an "Indenture"
and collectively as the "Indentures".
In connection therewith, we have examined, among other things, the Restated
Certificate of Incorporation and By-Laws of the Company, as amended; the
minutes of the proceedings of the Company's Board of Directors, including
committees thereof, with respect to the filing of the Registration Statement
and related matters (collectively, the "Board Resolutions"); each of the form
of Senior Indenture, the form of Senior Subordinated Indenture and the form of
Subordinated Indenture, and such other documents, records, certificates of
public officials and questions of law as we deemed necessary or appropriate
for the purpose of this opinion. In rendering this opinion, we have assumed
that there will be no changes in applicable law between the date of this
opinion and any date of issuance of Debt Securities.
Based upon the foregoing, we are of the opinion that:
The Debt Securities issued under any of the Indentures, when (i) the
applicable Indenture has been executed and delivered by the parties
thereto, (ii) the definitive terms of such Debt Securities and of their
issue and sale have been duly established in accordance with the Board
Resolutions and the provisions of the applicable Indenture so as not to
violate any applicable law or agreement or instrument then binding on the
Company, (iii) such Debt Securities have been duly executed by the proper
officers of the Company and authenticated by the Trustee or Trustees for
the series to be issued in accordance with the applicable Indenture and
(iv) such Debt Securities have been issued and sold as contemplated in the
Registration Statement, the prospectus contained therein and the applicable
supplement to the prospectus, such Debt Securities will be legally issued,
valid and binding obligations of the Company, except as enforcement thereof
may be limited by bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium and other laws affecting the rights of creditors
generally and except that equitable remedies may not be available.
<PAGE>
We hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement and to the reference to us contained therein under the
heading "Legal Matters." 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.
Jerome H. Kern, a partner of Baker & Botts, L.L.P., is a director of Tele-
Communications, Inc., a Delaware corporation, which owns all of the issued and
outstanding common stock of the Company.
Very truly yours,
Baker & Botts, L.L.P.
2
<PAGE>
TCI COMMUNICATIONS, INC.
AND CONSOLIDATED SUBSIDIARIES
CALCULATION OF RATIOS OF EARNINGS TO FIXED CHARGES
(AMOUNTS IN MILLIONS, EXCEPT FOR RATIOS)
(UNAUDITED)
<TABLE>
<CAPTION>
NINE MONTHS
ENDED
YEAR ENDED DECEMBER 31, SEPTEMBER 30,
-------------------------------- ----------------
1994 1993 1992 1991 1990 1995 1994
------ ---- ----- ----- ----- ------ -------
<S> <C> <C> <C> <C> <C> <C> <C>
Earnings (losses) from
continuing operations before
income taxes................ $ 223 161 45 (108) (308) (75) 142
Add:
Interest on debt............. 784 738 815 928 990 720 577
Interest portion of rentals.. 25 23 22 23 23 26 18
Amortization of debt
expense..................... 12 12 9 6 6 10 8
Distributions from and
(earnings) losses of less
than 50%-owned affiliates
with debt not guaranteed by
TCIC........................ (32) 26 (10) (27) 34 26 14
Minority interests in
earnings (losses) of
consolidated subsidiaries... 12 13 277 24 (63) -- 3
Elimination of preferred
stock dividend requirement
of consolidated subsidiaries
to 50%-owned affiliates..... -- -- (250) (42) (36) -- --
Preferred stock dividend
requirement of 50%-owned
affiliates, other than
amounts to TCIC............. -- -- 175 23 15 -- --
------ ---- ----- ----- ----- ------ -------
Earnings available for fixed
charges..................... $1,024 973 1,083 827 661 707 762
====== ==== ===== ===== ===== ====== =======
Fixed charges:
Interest on debt:
TCIC and consolidated
subsidiaries................ 777 731 718 826 868 713 566
Elimination of interest of
consolidated subsidiaries to
50%-owned affiliates........ -- -- (36) (47) (51) -- --
Less than 50%-owned
affiliates with debt
guaranteed by TCIC.......... 7 -- -- -- -- 7 4
TCIC's proportionate share of
interest of 50%-owned
affiliates.................. -- 7 133 149 173 -- 7
------ ---- ----- ----- ----- ------ -------
784 738 815 928 990 720 577
Interest portion of rentals.. 25 23 22 23 23 26 18
Amortization of debt
expense..................... 12 12 9 6 6 10 8
Preferred stock dividend
requirements of consolidated
subsidiaries................ 10 14 281 61 56 7 7
Elimination of preferred
stock dividend requirement
of consolidated subsidiaries
to 50%-owned affiliates..... -- -- (250) (42) (36) -- --
Preferred stock dividend
requirement of 50%-owned
affiliates, other than
amounts to TCIC............. -- -- 175 23 15 -- --
Capitalized interest......... 15 9 6 5 6 7 12
------ ---- ----- ----- ----- ------ -------
Total Fixed Charges.......... $ 846 796 1,058 1,004 1,060 770 622
====== ==== ===== ===== ===== ====== =======
Ratio of earnings to fixed
charges..................... 1.21 1.22 1.02 -- -- 1.23
------ ---- ----- ----- ----- ------ -------
Deficiency................... $ -- -- -- (177) (399) (63) --
------ ---- ----- ----- ----- ------ -------
</TABLE>
(a) Preferred Stock dividend requirements have been increased to an amount
representing the pretax earnings which would be required to cover such
dividend requirements. The effective income tax rate utilized for purposes
of increasing preferred stock dividend requirements in 1993 has been
adjusted to exclude the effect of the federal income tax rate change in the
third quarter of 1993.
(continued)
<PAGE>
TCI COMMUNICATIONS, INC.
AND CONSOLIDATED SUBSIDIARIES
CALCULATION OF RATIOS OF EARNINGS TO FIXED CHARGES
(AMOUNTS IN MILLIONS, EXCEPT FOR RATIOS)
(UNAUDITED)
Fixed Charges related to interest on debt of less than 50%-owned affiliates
guaranteed by TCIC:
<TABLE>
<S> <C>
Year ended December 31,
1990.................................................................... 710
1991.................................................................... 506
1992.................................................................... 2,517
1993.................................................................... 13,833
1994.................................................................... 5,346
Nine Months Ended September 30,
1994.................................................................... 7,403
1995.................................................................... 3,053
</TABLE>
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the registration statement
on Form S-3 of TCI Communications, Inc. of our reports dated March 27, 1995,
relating to the consolidated balance sheets of TCI Communications, Inc.
(formerly Tele-Communications, Inc.) and subsidiaries as of December 31, 1994
and 1993, and the related consolidated statements of operations,
stockholders'(s') equity, and cash flows for each of the years in the three-
year period ended December 31, 1994, and the related financial statement
schedules, which reports appear in the December 31, 1994 Annual Report on Form
10-K, as amended, of TCI Communications, Inc. and to the reference to our firm
under the heading "Experts" in the registration statement. Our reports
covering the December 31, 1994 consolidated financial statements refer to the
adoption of Statement of Financial Accounting Standards No. 115, "Accounting
for Certain Investments in Debt and Equity Securities," in 1994.
KPMG Peat Marwick LLP
Denver, Colorado
November 15, 1995
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of the Registration Statement on Form S-3 of TCI
Communications, Inc. of our report dated February 4, 1994, relating to the
consolidated financial statements of TeleCable Corporation which appears on
page 12 of the TCI Communications, Inc. and Tele-Communications, Inc. Current
Report of Form 8-K dated August 26, 1994. We also consent to the reference to
us under the heading "Experts" in the registration statement.
Price Waterhouse LLP
Norfolk, Virginia
November 15, 1995
<PAGE>
THIS CONFORMING PAPER FORMAT DOCUMENT IS BEING SUBMITTED
PURSUANT TO RULE 901(D) OF REGULATION S-T
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
EXHIBIT 25.1
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(B)(2) [_]
----------------
THE BANK OF NEW YORK
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
NEW YORK 13-5160382
(STATE OF INCORPORATION IF NOT A U.S. (I.R.S. EMPLOYER IDENTIFICATION NO.)
NATIONAL BANK)
10286
48 WALL STREET, NEW YORK, N.Y. (ZIP CODE)
(ADDRESS OF PRINCIPAL EXECUTIVE
OFFICES)
----------------
TCI COMMUNICATIONS, INC.
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
DELAWARE
(STATE OR OTHER JURISDICTION OF 84-0588868
INCORPORATION OR ORGANIZATION) (I.R.S. EMPLOYER
IDENTIFICATION NO.)
TERRACE TOWER II
5619 DTC PARKWAY 80111-3000
ENGLEWOOD, COLORADO (ZIP CODE)
(ADDRESS OF PRINCIPAL EXECUTIVE
OFFICES)
----------------
TELE-COMMUNICATIONS, INC.
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
DELAWARE 84-1260157
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
TERRACE TOWER II 80111-3000
5619 DTC PARKWAY (ZIP CODE)
ENGLEWOOD, COLORADO
(ADDRESS OF PRINCIPAL EXECUTIVE
OFFICES)
----------------
DEBT SECURITIES
(TITLE OF THE INDENTURE SECURITIES)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
1. GENERAL INFORMATION. Furnish the following information as to the Trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
<TABLE>
<CAPTION>
NAME ADDRESS
---- -------
<S> <C>
Superintendent of Banks of the 2 Rector Street, New York, N.Y. 10006,
State of New York and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York, N.Y. 10045
Federal Deposit Insurance
Corporation Washington, D.C. 20429
New York Clearing House
Association New York, New York
</TABLE>
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None. (See Note on page 3.)
16. LIST OF EXHIBITS.
Exhibits identified in parentheses below, on file with the Commission, are
incorporated herein by reference as an exhibit hereto, pursuant to Rule 7a-
29 under the Trust Indenture Act of 1939 (the "Act") and Rule 24 of the
Commission's Rules of Practice.
1. A copy of the Organization Certificate of The Bank of New York (formerly
Irving Trust Company) as now in effect, which contains the authority to
commence business and a grant of powers to exercise corporate trust
powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed with
Registration Statement No. 33-6215, Exhibits 1a and 1b to Form T-1 filed
with Registration Statement No. 33-21672 and Exhibit 1 to Form T-1 filed
with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No. 33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority.
NOTE
Inasmuch as this Form T-1 is filed prior to the ascertainment by the Trustee
of all facts on which to base a responsive answer to Item 2, the answer to
said Item is based on incomplete information.
Item 2 may, however, be considered as correct unless amended by an amendment
to this Form T-1.
2
<PAGE>
SIGNATURE
PURSUANT TO THE REQUIREMENTS OF THE ACT, THE TRUSTEE, THE BANK OF NEW YORK,
A CORPORATION ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF NEW YORK,
HAS DULY CAUSED THIS STATEMENT OF ELIGIBILITY TO BE SIGNED ON ITS BEHALF BY
THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, ALL IN THE CITY OF NEW YORK, AND
STATE OF NEW YORK, ON THE 15TH DAY OF NOVEMBER, 1995.
The Bank of New York
/s/ Vivian Georges
By: _________________________________
Name:Vivian Georges
Title:Assistant Vice President
3
<PAGE>
EXHIBIT 7
CONSOLIDATED REPORT OF CONDITION OF
THE BANK OF NEW YORK
OF 48 WALL STREET, NEW YORK, N.Y. 10286
And Foreign and Domestic Subsidiaries, a member of the Federal Reserve
System, at the close of business June 30, 1995, published in accordance with a
call made by the Federal Reserve Bank of this District pursuant to the
provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
DOLLAR AMOUNTS
IN THOUSANDS
--------------
<S> <C>
ASSETS
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin............ $ 3,025,419
Interest-bearing balances..................................... 881,413
Securities:
Held-to-maturity securities................................... 1,242,368
Available-for-sale securities................................. 1,774,079
Federal funds sold in domestic offices of the bank............. 5,503,445
Securities purchased under agreements to resell................ 200,634
Loans and lease financing receivables:
Loans and leases, net of unearned income............26,599,533
LESS: Allowance for loan and lease losses..............516,283
Loans and leases, net of unearned income and allowance ....... 26,083,250
Assets held in trading accounts................................ 1,455,639
Premises and fixed assets (including capitalized leases)....... 612,547
Other real estate owned........................................ 79,667
Investments in unconsolidated subsidiaries and associated
companies .................................................... 198,737
Customers' liability to this bank on acceptances outstanding .. 1,111,464
Intangible assets ............................................. 105,263
Other assets .................................................. 1,237,264
-----------
Total assets .................................................. $43,511,189
===========
LIABILITIES
Deposits:
In domestic offices .......................................... $19,233,885
Noninterest-bearing .................................7,677,954
Interest-bearing ...................................11,555,931
In foreign offices, Edge and Agreement subsidiaries, and IBFs
............................................................. 12,641,676
Noninterest-bearing ....................................72,479
Interest-bearing ...................................12,569,197
Federal funds purchased and securities sold under agreements to
repurchase in domestic offices of the bank and of its Edge and
Agreement subsidiaries, and in IBFs:
Federal funds purchased ...................................... 1,747,659
Securities sold under agreements to repurchase ............... 73,553
Demand notes issued to the U.S. Treasury ...................... 300,000
Trading liabilities ........................................... 738,317
Other borrowed money:
With original maturity of one year or less ................... 1,586,443
With original maturity of more than one year ................. 220,877
Bank's liability on acceptances executed and outstanding ...... 1,113,102
Subordinated notes and debentures ............................. 1,053,860
Other liabilities ............................................. 1,489,252
-----------
Total liabilities ............................................. 40,198,624
-----------
EQUITY CAPITAL
Common stock .................................................. 942,284
Surplus ....................................................... 525,666
Undivided profits and capital reserves ........................ 1,849,221
Net unrealized holding gains (losses) on available-for-sale
securities ................................................... (662)
Cumulative foreign currency translation adjustments ........... (3,944)
-----------
Total equity capital .......................................... 3,312,565
-----------
Total liabilities and equity capital .......................... $43,511,189
===========
</TABLE>
I, Robert E. Keilman, Senior Vice President and Comptroller of the above-
named bank do hereby declare that this Report of Condition has been prepared
in conformance with the instructions issued by the Board of Governors of the
Federal Reserve System and is true to the best of my knowledge and belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
J. Carter Bacot |
Thomas A. Renyi | Directors
Samuel F. Chevalier |
4
