<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15 of the
Securities Exchange Act of 1934
Date of Report: September 13, 1995
Date of Earliest Event Reported: September 8, 1995
TCI COMMUNICATIONS, INC.
(Exact name of Registrant as specified in its Charter)
DELAWARE
(State or other jurisdiction of incorporation)
0-5550 84-0588868
(Commission File Number) (I.R.S. Employer Identification No.)
TERRACE TOWER II
5619 DTC Parkway
Englewood, Colorado 80111-3000
(Address of principal executive offices)
Registrant's telephone number, including area code: (303) 267-5500
<PAGE> 2
ITEM 5. OTHER EVENTS.
Pursuant to a registration statement on Form S-3 (File No.
33-60982) (the "Registration Statement") filed with the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933, as amended (the
"Act"), and declared effective by the Commission on July 26, 1993, the
Registrant has registered its senior, senior subordinated and subordinated debt
securities (the "Debt Securities"), and certain other securities of the
Company, for delayed or continuous offering to the public pursuant to Rule 415
under the Act for a maximum aggregate initial offering price of $3 billion (or
the equivalent thereof denominated in one or more foreign currencies, foreign
currency units or composite currencies). Reference is made to the Registration
Statement for further information concerning the terms of the Debt Securities
registered pursuant to the Registration Statement and the offering thereof.
On September 8, 1995, an underwriting agreement (the
"Underwriting Agreement"), substantially in the form of Exhibit 1.1 to the
Registration Statement, was executed by Merrill Lynch, Pierce, Fenner & Smith
Incorporated (the "Underwriter") providing for the sale by the Registrant to,
and the offering to the public by, the Underwriter of $200,000,000 principal
amount of the Registrant's Remarketed Reset Notes due September 15, 2010 (the
"Securities"). On September 13, 1995, the transactions contemplated by the
Underwriting Agreement were consummated. The net proceeds to the Registrant
from the sale of the Securities were $199,300,000, before deducting expenses
of the Registrant. The Underwriting Agreement is filed as Exhibit 1.1 hereto.
The Registrant has estimated that expenses of $100,000 will be payable by it in
connection with the sale of the Securities.
-2-
<PAGE> 3
On September 8, 1995, a remarketing agreement (the
"Remarketing Agreement") was executed by the Underwriter and the Registrant.
The Remarketing Agreement is filed as Exhibit 1.2 hereto.
The Securities were issued pursuant to an indenture, dated
as of August 4, 1993, in the form filed as Exhibit 4.12 to the Company's
Current Report on Form 8-K, dated August 4, 1993 (the "Original Indenture"), as
amended and supplemented by a First Supplemental Indenture, dated as of
September 13, 1994 (the "Supplemental Indenture," together with the Original
Indenture, the "Indenture"), between the Company and The Bank of New York, as
Trustee. The Supplemental Indenture is filed as Exhibit 4.1 hereto. The
description of certain provisions of the Indenture and the Securities and
information concerning the terms of their purchase and offering to the public
by the Underwriters, are incorporated herein by reference (i) to the section
entitled "Description of Debt Securities -- Senior Debt Securities" of the
Prospectus, dated September 8, 1995 (the "Prospectus"), and (ii) to the
sections entitled "Certain Terms of the Notes" and "Underwriting" in the
Prospectus Supplement thereto, dated September 8, 1995 (the "Prospectus
Supplement"), each of which has been filed with the Commission pursuant to Rule
424(b) under the Act. The form of Securities is filed as Exhibit 4.2 hereto.
Pursuant to Item 601(a) of Regulation S-K promulgated by the
Commission ("Regulation S-K"), the Registrant filed as Exhibit 5 to the
Registration Statement an opinion, dated May 24, 1993, rendered to the
Registrant by Baker & Botts, L.L.P., counsel to the Registrant, as to the
matters referred to in Item 601(b)(5)(i) of Regulation S-K with respect to the
Debt Securities generally. On September 13, 1995, Baker & Botts, L.L.P.
rendered to the Registrant an opinion (the "Opinion") as to such matters
specifically relating to the Securities.
-3-
<PAGE> 4
A copy of the opinion is filed as Exhibit 5.1 hereto and includes the consent
of Baker & Botts, L.L.P. (the "Consent") to the reference to its name in the
Prospectus Supplement.
The Registrant is filing this Current Report on Form 8-K in
order to cause the Underwriting Agreement, the Remarketing Agreement, the
Supplemental Indenture, the form of Securities, the Opinion and the Consent to
be incorporated into the Registration Statement by reference. By filing this
Current Report on Form 8-K, however, the Registrant does not believe that any
of the Underwriting Agreement, the Remarketing Agreement, the Supplemental
Indenture, the form of Securities, the Opinion, the Consent or the information
set forth herein represent, either individually or in the aggregate, a
"fundamental change" (as such term is used in Item 512(a)(1)(ii) of Regulation
S-K) in the information set forth in the Registration Statement.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS.
<TABLE>
<CAPTION>
Exhibits
--------
<S> <C>
1.1 Underwriting Agreement, dated September 8, 1995, between the Underwriter and
the Registrant.
1.2 Remarketing Agreement, dated September 8, 1995, between the Underwriter and
the Registrant.
4.1 First Supplemental Indenture, dated as of September 13, 1994, between The
Bank of New York and the Registrant.
4.2 Form of Remarketed Reset Notes due September 15, 2010.
5.1 Opinion, dated September 13, 1995, of Baker & Botts, L.L.P., counsel to the
Registrant, as to legality of the Securities.
24.1 Consent of Baker & Botts, L.L.P. (included in Exhibit 5.1).
</TABLE>
-4-
<PAGE> 5
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the Registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
Dated: September 13, 1995
TCI COMMUNICATIONS, INC.
(Registrant)
By: /S/ Bernard W. Schotters
------------------------------------
Name: Bernard W. Schotters
Title: Senior Vice President
-5-
<PAGE> 6
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibits
--------
<S> <C>
1.1 Underwriting Agreement, dated September 8, 1995, between the Underwriter and
the Registrant.
1.2 Remarketing Agreement, dated September 8, 1995, between the Underwriter and
the Registrant.
4.1 First Supplemental Indenture, dated as of September 13, 1994, between The
Bank of New York and the Registrant.
4.2 Form of Remarketed Reset Notes due September 15, 2010.
5.1 Opinion, dated September 13, 1995, of Baker & Botts, L.L.P., counsel to the
Registrant, as to legality of the Securities.
24.1 Consent of Baker & Botts, L.L.P. (included in Exhibit 5.1).
</TABLE>
-6-
<PAGE> 1
EXHIBIT 1.1
UNDERWRITING AGREEMENT
September 8, 1995
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
Merrill Lynch World Headquarters
North Tower
World Financial Center
New York, New York 10281-1305
Dear Sirs:
TCI Communications, Inc. (the "Company") proposes to issue and sell
$200,000,000 principal amount of its Remarketed Reset Notes Due September 15,
2010 (the "Offered Debt Securities") pursuant to an indenture dated as of
August 4, 1993, as amended and supplemented by a First Supplemental Indenture
dated as of September 13, 1994 (as the same may be further amended or
supplemented, the "Indenture"), with The Bank of New York, as trustee (the
"Trustee"). Each Offered Debt Security will be issuable in the denominations
and shall have the terms set forth in Exhibit A. The term "Underwriters" as
used herein will mean and refer collectively to you and to the other several
Underwriters named in Exhibit B (and any substitute underwriter pursuant to
Section 9 hereof), the term "Underwriter" will refer to any of the several
Underwriters named in Exhibit B (and any substitute underwriter pursuant to
Section 9 hereof), and the term "Representatives" will refer to you in your
capacity as the Representatives of the several Underwriters. Any reference to
you in this Agreement shall be solely in your capacity as Representatives. The
Company confirms as follows its agreement with you and the Underwriters.
1. Registration Statement and Prospectus: The Company has filed with
the Securities and Exchange Commission (the "Commission"), in accordance with
the Securities Act of 1933, as amended, and the rules and regulations of the
Commission promulgated thereunder (collectively called the "Act"), a shelf
registration statement on Form S-3 (File No. 33-60982), including a prospectus,
relating to debt securities of the Company (the "Debt Securities") issuable
from time to time in one or more series, including the Offered Debt Securities,
Class A Common Stock Warrants of the Company issuable from time to time in one
or more series, and shares of Class A Common Stock, $1.00 par value per share,
of the Company (the "Common Stock") issuable from time to time upon conversion
of convertible Debt Securities or exercise of Class A Common Stock Warrants,
which has become effective under the Act, and will promptly file with the
Commission a prospectus supplement specifically relating to the Offered Debt
Securities pursuant to Rule 424 under the Act. As used in this Agreement, the
term "Registration Statement" means such registration statement, including
exhibits and financial statements and schedules and documents incorporated by
reference therein, as amended or supplemented to the date hereof and, in the
case of references to the Registration Statement as of a date subsequent to the
date hereof, as amended or supplemented as of such date. The term "Basic
Prospectus" means the prospectus dated September 8, 1995 to be filed with the
Commission pursuant to Rule 424 under the Act. The term "Prospectus" means the
Basic Prospectus together with the prospectus supplement specifically relating
to the Offered Debt Securities as filed with the Commission pursuant to Rule
424 under the Act. The term "preliminary prospectus" means any preliminary
prospectus supplement specifically relating to the Offered Debt Securities
together with the Basic Prospectus. Any reference herein to any preliminary
prospectus or the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the Act, as of the date of such preliminary prospectus or the Prospectus,
as the case may be, and any reference herein to any amendment or supplement to
any preliminary prospectus or the Prospectus, except the reference in Section
4(c), shall be deemed to refer to and include any documents filed after such
date under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and so incorporated by reference.
<PAGE> 2
2. Agreements to Sell and Purchase: The Company agrees to sell to
the Underwriters, and upon the basis of the representations, warranties and
agreements of the Company herein contained and subject to the terms and
conditions of this Agreement the Underwriters agree to purchase from the
Company, severally and not jointly, the principal amount of Offered Debt
Securities set forth opposite each Underwriter's respective name in Exhibit B,
at a purchase price of 99.65% of the principal amount of the Offered Debt
Securities plus accrued interest, if any, from September 13, 1995. The
obligations of the several Underwriters to purchase Offered Debt Securities
pursuant to this Agreement are hereinafter called their "underwriting
obligations".
With respect to any of the Offered Debt Securities purchased by an
Underwriter hereunder that such Underwriter continues to own or hold at any
time on or after the 90th day following the Closing Date (as defined in Section
3), such Underwriter agrees that upon receipt of written notice by the
Representatives from the Company of the Company's intention to bid for or
purchase any Offered Debt Security or any security of the same class and series
as the Offered Debt Securities or to take any other action, directly or
indirectly, the taking of which would be proscribed by Rule 10b-6 promulgated
by the Commission under the Exchange Act (or any successor or equivalent rule
or regulation) during the distribution of the Offered Debt Securities, such
Underwriter will, and will cause its "affiliated purchasers" (as defined in
said Rule) to, cease distributing the Offered Debt Securities for such period
of time as the Company may deem necessary so that the action or actions
proposed to be taken, directly or indirectly, by it may be taken in full
compliance with such Rule (or any successor or equivalent rule or regulation).
3. Delivery and Payment: Delivery of and payment for the Offered
Debt Securities shall be made at 10:00 A.M., New York time, on September 13,
1995 (such time and date are referred to herein as the "Closing Date"), at the
office of Baker & Botts, L.L.P., 885 Third Avenue, Suite 1900, New York, New
York. The Closing Date and the place of delivery of and payment for the
Offered Debt Securities may be varied by agreement between you and the Company.
Delivery of the Offered Debt Securities (in definitive form and
registered in such names and in such authorized denominations as you shall
request at least two business days prior to the Closing Date by written notice
to the Company) shall be made to you for the account of the respective
Underwriters against payment by you on behalf of the respective Underwriters of
the purchase price therefor by cashier or official bank check or checks payable
to the order of the Company in New York Clearing House (next day) funds. For
the purpose of expediting the checking and packaging of the Offered Debt
Securities, the Company agrees to make the Offered Debt Securities available to
you for inspection at least 24 hours prior to the Closing Date or such shorter
period of time as you may agree to.
4. Agreements of the Company: The Company agrees with you as follows:
(a) The Company will notify you promptly, and (if requested
by you in writing) will confirm such advice in writing, (1) of the
effectiveness of any amendment to the Registration Statement and of
the filing of any supplement to the Prospectus, (2) of any comments of
the Commission regarding the Registration Statement or the Prospectus
(or any of the documents incorporated by reference therein) or of any
request by the Commission for amendments or supplements to the
Registration Statement or the Prospectus or for additional
information, (3) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation or threatening of any proceedings for that purpose, (4) of
the receipt by the Company of any notification with respect to the
suspension of the qualification of the Offered Debt Securities for
offer or sale in any jurisdiction or the initiation or threatening of
any proceedings for such purpose and (5) of the happening of any event
during the period mentioned in paragraph (d) below which makes any
statement of a material fact made in the Registration Statement or the
Prospectus (as theretofore amended or supplemented) untrue or which
requires the making of any changes in the Registration Statement or
the Prospectus (as theretofore amended or supplemented) in order to
make the statements therein, in light of the circumstances when the
Prospectus is delivered to a purchaser, not misleading. The Company
will use its reasonable best efforts to prevent the issuance of any
order suspending the effectiveness of the Registration Statement or
suspending the qualification of the
2
<PAGE> 3
Offered Debt 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) and will deliver to you for
delivery to each Underwriter the number of conformed copies of the
Registration Statement and any post-effective amendment thereto,
excluding exhibits, as you may request.
(c) The Company will give you advance notice of its intention
to file any amendment or supplement to the Registration Statement or
the Prospectus with respect to the Offered Debt Securities, and will
not file any such amendment or supplement to which you shall
reasonably object in writing.
(d) During the period of time that the Prospectus is required
by law to be delivered, the Company will deliver to you for delivery
to each Underwriter, without charge, as many copies of the Prospectus
or any amendment or supplement thereto as you may reasonably request
on behalf of the Underwriters. The Company consents to the use of the
Prospectus or any amendment or supplement thereto by the Underwriters
and by all dealers to whom the Offered Debt Securities may be sold,
both in connection with the offering or sale of the Offered Debt
Securities and for such period of time thereafter as the Prospectus is
required by law to be delivered in connection therewith. If during
such period of time any event shall occur which in the judgment of the
Company should be set forth (or incorporated by reference) in the
Prospectus in order to make the statements therein, in light of the
circumstances when the Prospectus is delivered to a purchaser, not
misleading, or if it is necessary to supplement or amend the
Prospectus to comply with law, the Company will forthwith prepare and
duly file with the Commission an appropriate supplement or amendment
thereto, and forthwith file all reports and any definitive proxy
statement or information statement required to be filed by the Company
with the Commission pursuant to Section 13 or 14 of the Exchange Act
subsequent to the date of the Prospectus, and will deliver to you,
without charge, such number of copies thereof as you may reasonably
request on behalf of the Underwriters. If during such period of time
any event shall occur which in your judgment should be so set forth
(or incorporated by reference) in the Prospectus, or which in your
judgment makes it necessary to so supplement or amend the Prospectus,
the Company will consult with you concerning the necessity of filing
with the Commission a supplement or an amendment to the Prospectus or
a report pursuant to Section 13 or 14 of the Exchange Act.
(e) Prior to any public offering of the Offered Debt
Securities by the Underwriters, the Company will cooperate with you
and counsel retained by you on behalf of the Underwriters in
connection with the registration or qualification of the Offered Debt
Securities for offer and sale under the securities or Blue Sky laws
of, and the determination of the eligibility of the Offered Debt
Securities for investment under the laws of, such jurisdictions as you
request; provided, that in no event shall the Company be obligated to
qualify to do business as a foreign corporation or as a securities
dealer in any jurisdiction where it is not now so qualified, to
conform its capitalization or the composition of its assets to the
securities or Blue Sky laws of any jurisdiction or to take any action
which would subject it to taxation or general service of process in
any jurisdiction where it is not now so subject. The Company will pay
all reasonable fees and expenses (including reasonable counsel fees
and expenses) relating to qualification of the Offered Debt Securities
under such securities or Blue Sky laws and in connection with the
determination of the eligibility of the Offered Debt Securities for
investment under the laws of such jurisdictions as you may designate.
3
<PAGE> 4
(f) The Company will make generally available to its security
holders and to you and to each Underwriter who may request the same
consolidated earnings statements (which need not be audited) that
satisfy the provisions of Section 11 (a) of the Act and Rule 158
thereunder.
(g) The Company will pay all expenses in connection with (1)
the preparation, printing and filing of the Registration Statement,
any preliminary prospectus, the Prospectus, any legal investment
memorandum and Blue Sky memorandum as contemplated by Section 4(e),
(2) the preparation, issuance and delivery of the Offered Debt
Securities (other than transfer taxes) and the execution and delivery
of the Indenture, (3) the printing of any Dealer Agreement, (4)
furnishing such copies of the Registration Statement, the Prospectus
and any preliminary prospectus, and all amendments and supplements
thereto, as may be requested for use in connection with the offering
and sale of the Offered Debt Securities by dealers to whom Offered
Debt Securities may be sold, and (5) any fees paid to rating agencies,
if any, selected by the Company in connection with the rating of the
Offered Debt Securities.
(h) If this Agreement is terminated by you because any
condition to the obligations of you and the Underwriters set forth in
Section 7 hereof is not satisfied or because of any failure or refusal
on the part of the Company to comply with the terms hereof or if for
any reason the Company shall be unable to perform its obligations
hereunder, the Company will reimburse you on behalf of the
Underwriters for all out-of-pocket expenses (including the fees and
expenses of counsel retained by you on behalf of the Underwriters)
reasonably incurred by you in connection herewith. The Company will
not in any event be liable to you or any of the Underwriters for
damages on account of loss of anticipated profits.
(i) From the date hereof to and including the Closing Date,
the Company will not offer or sell, or contract to sell, any debt
securities of the Company with a maturity of more than one year,
including additional Offered Debt Securities, pursuant to a public
offering without your prior written consent.
5. Representations and Warranties of the Company: The Company
represents and warrants to each Underwriter that:
(a) the documents incorporated by reference in the
Registration Statement and the Prospectus, when they were filed (or,
if an amendment with respect to any such document was filed, when such
amendment was filed) with the Commission, conformed in all material
respects to the requirements of the Exchange Act and the rules and
regulations of the Commission promulgated thereunder, and any further
documents so filed and incorporated by reference will, when they are
filed with the Commission, conform in all material respects to the
requirements of the Exchange Act and the rules and regulations of the
Commission promulgated thereunder, none of such documents, when it was
filed (or, if an amendment with respect to any such document was
filed, when such amendment was filed), contained an untrue statement
of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading; and
no such further document, when it is filed, will contain an untrue
statement of a material fact or will omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they are made, not
misleading;
(b) the Registration Statement, when declared effective by
the Commission, complied in all material respects with the
requirements of the Act; each preliminary prospectus, if any, relating
to the Offered Debt Securities, filed pursuant to Rule 424 under the
Act, will comply when so filed in all material respects with the Act;
and when the Prospectus is first filed with the Commission pursuant to
Rule 424 and as of the Closing Date, the Registration Statement and
the Prospectus (as amended or supplemented, if applicable) will comply
in all material respects with the requirements of the Act and the
Indenture will comply in all material respects with the requirements
of the Trust Indenture Act of 1939, as amended (the
4
<PAGE> 5
"Trust Indenture Act"). When it was declared effective by the
Commission, the Registration Statement did not, and as of the date the
Prospectus is first filed with the Commission pursuant to Rule 424 and
as of the Closing Date the Registration Statement (as amended or
supplemented, if applicable) will not, contain an untrue statement of
a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading.
When the Prospectus is first filed with the Commission pursuant to
Rule 424 and as of the Closing Date, the Prospectus (as amended or
supplemented, if applicable) will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
Notwithstanding the foregoing, this representation and warranty does
not apply to statements or omissions in the Registration Statement or
the Prospectus or any preliminary prospectus made in reliance upon
information furnished to the Company in writing by the Underwriters
through the Representatives expressly for use therein or to that part
of the Registration Statement which consists of the Statements of
Eligibility and Qualification on Form T-1 under the Trust Indenture
Act of the trustees for the Debt Securities;
(c) the Offered Debt Securities and the Indenture have been
duly authorized by the Company and will conform to the descriptions
thereof in the Prospectus;
(d) the issuance and sale of the Offered Debt Securities and
the fulfillment of the terms of this Agreement will not result in a
breach of any of the terms or provisions of, or constitute a default
under, the Company's charter or by-laws or any indenture, mortgage,
deed of trust or other material agreement or instrument to which the
Company or any of its significant subsidiaries (as such term is
defined in Rule 1.02(v) of Regulation S-X) is now a party or by which
it is bound, or any order of any court or governmental agency or
authority entered in any proceeding to which the Company or any of its
significant subsidiaries was or is now a party or by which it is
bound;
(e) KPMG Peat Marwick LLP, the Company's auditors, are
independent accountants as required by the Act;
(f) so long as may be required for the distribution of the
Offered Debt Securities by any Underwriter or by any dealers that
participate in the distribution thereof, the Company will comply with
all requirements under the Exchange Act relating to the timely filing
with the Commission of its reports pursuant to Section 13 of the
Exchange Act and of its proxy statements pursuant to Section 14 of the
Exchange Act; and
(g) except to the extent set forth in the Prospectus, the
Company has not received any notice of, nor does it have any actual
knowledge of, any failure by it or any of its significant subsidiaries
to be in substantial compliance with all existing statutes and
regulations applicable to it or such subsidiaries, which failure would
materially and adversely affect the conduct of the business of the
Company and its subsidiaries, considered as a whole.
6. Indemnification: The Company agrees to indemnify and hold
harmless each Underwriter, and each person, if any, who controls each
Underwriter within the meaning of either Section 15 of the Act or Section 20 of
the Exchange Act, from and against any and all losses, claims, damages,
liabilities and expenses (including reasonable costs of investigation) arising
out of or based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the Prospectus or in
any amendment or supplement thereto or in any preliminary prospectus, or
arising out of or based upon any omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading, except insofar as such losses, claims, damages, liabilities or
expenses arise out of or are based upon any such untrue statement or omission
or allegation thereof based upon information
5
<PAGE> 6
furnished in writing to the Company by an Underwriter through the
Representatives expressly for use therein; provided, however, the Company shall
not indemnify an Underwriter or any person who controls such Underwriter from
any such losses, claims, damages or liabilities alleged by any person who
purchased Offered Debt Securities from such Underwriter if the untrue
statement, omission or allegation thereof upon which such losses, claims,
damages or liabilities are based was made in: (i) any preliminary prospectus,
if a copy of the Prospectus (as then amended or supplemented if the Company
shall have furnished any amendments or supplements thereto) was not sent or
given by or on behalf of such Underwriter to such person at or prior to the
written confirmation of the sale of Offered Debt Securities to such person, and
if the Prospectus (as so amended or supplemented) corrected the untrue
statement or omission giving rise to such loss, claim, damage or liability;
(ii) any Prospectus used by such Underwriter or any person who controls such
Underwriter, after such time as the Company advised the Representatives that
the filing of a post-effective amendment or supplement thereto was required,
except the Prospectus as so amended or supplemented; or (iii) any Prospectus
used after such time as the obligation of the Company to keep the same current
and effective has expired. This indemnity will be in addition to any liability
which the Company may otherwise have. All fees and expenses which are
reimbursable pursuant to this Section 6 shall be reimbursed as they are
incurred.
If any action or proceeding (including any governmental investigation)
shall be brought or asserted against an Underwriter or any person controlling
an Underwriter in respect of which indemnity may be sought from the Company,
such Underwriter or such controlling person shall promptly notify the Company
in writing, and the Company shall assume the defense thereof, including the
employment of counsel reasonably satisfactory to you and the payment of all
expenses. Any omission so to notify the Company shall not, however, relieve
the Company from any liability which it may have to any indemnified party
otherwise than under this Section 6. An Underwriter or any person controlling
an Underwriter shall have the right to employ separate counsel in any such
action or proceeding and to participate in the defense thereof, but the fees
and expenses of such separate counsel shall be such Underwriter's expense or
the expense of such controlling person unless (a) the Company has agreed to pay
such fees and expenses or (b) the Company shall have failed to assume the
defense of such action or proceeding and employ counsel reasonably satisfactory
to you in any such action or proceeding or (c) the named parties to any such
action or proceeding (including any impleaded parties) include both such
Underwriter or such controlling person and the Company, and such Underwriter or
such controlling person shall have been advised by your counsel that there may
be a conflict of interest between such Underwriter or such controlling person
and the Company in the conduct of the defense of such action (in which case, if
such Underwriter or such controlling person notifies the Company in writing
that it elects to employ separate counsel at the expense of the Company, the
Company shall not have the right to assume the defense of such action or
proceeding on behalf of such Underwriter or such controlling person), it being
understood, however, that the Company shall not, in connection with any one
such action or proceeding or separate but substantially similar or related
actions or proceedings arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of more than one
separate firm of attorneys (unless the members of such firm are not admitted to
practice in a jurisdiction where an action is pending, in which case the
Company shall pay the reasonable fees and expenses of one additional firm of
attorneys to act as local counsel in such jurisdiction, provided the services
of such counsel are substantially limited to that of appearing as attorneys of
record) at any time for all indemnified parties, which firm shall be designated
in writing by you. The Company shall not be liable for any settlement of any
such action or proceeding effected without its written consent, but if settled
with its written consent, or if there be a final judgment for the plaintiff in
any such action or proceeding, the Company agrees to indemnify and hold
harmless each Underwriter and any such controlling person from and against any
loss or liability by reason of such settlement or judgment.
Each Underwriter severally agrees to indemnify and hold harmless the
Company, its directors and each of its officers, and each person, if any, who
controls the Company within the meaning of either Section 15 of the Act or
Section 20 of the Exchange Act, to the same extent as the foregoing indemnity
from the Company to each Underwriter, but only with respect to information
furnished in writing by such Underwriter through the Representatives expressly
for use in the Registration Statement, the Prospectus, or any amendment or
supplement
6
<PAGE> 7
thereto, or any preliminary prospectus. In case any action or proceeding shall
be brought against the Company or its directors or officers or any such
controlling person, in respect of which indemnity may be sought against one or
more of the several Underwriters, such Underwriters acting through the
Representatives shall have the rights and duties given to the Company, and the
Company or its directors or officers or such controlling person shall have the
rights and duties given to you and the several Underwriters, by the preceding
paragraph.
If the indemnification provided for in this Section 6 is unavailable
to an indemnified party under the first or third paragraph hereof in respect of
any losses, claims, damages or liabilities referred to therein (other than by
reason of such indemnified party's failure to comply with the first sentence of
the second paragraph of this Section 6), then each applicable indemnifying
party, in lieu of indemnifying such indemnified party, shall contribute to the
amount paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and the
Underwriters on the other hand from the offering of the Offered Debt Securities
or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault
of the Company on the one hand and of the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriters on the other in connection with the offering of the
Offered Debt Securities shall be deemed to be in the same proportion as the
total net proceeds from the offering of the Offered Debt Securities received by
the Company bear to the total underwriting discounts received by the
Underwriters in respect thereof. The relative fault of the Company on the one
hand and of the Underwriters on the other shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or by the Underwriters through
the Representatives and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The amount paid or payable by a party as a result of the losses, claims,
damages and liabilities referred to above shall be deemed to include, subject
to the limitations set forth in the second paragraph of this Section 6, any
legal or other fees or expenses reasonably incurred by such party in connection
with investigating or defending any action or claim.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 6 were determined by pro
rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to in the immediately
preceding paragraph. Notwithstanding the provisions of this Section 6, the
Underwriters shall not be required to contribute any amount in excess of the
amount by which the total price at which the Offered Debt Securities were
offered to the public exceeds the amount of any damages which the Underwriters
have otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11 (f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.
The indemnity and contribution agreements contained in this Section 6
and the representations and warranties of the Company contained in this
Agreement shall remain operative and in full force and effect regardless of (a)
any investigation made by or on behalf of any Underwriter, by or on behalf of
any person controlling any Underwriter or by or on behalf of the Company, (b)
acceptance of any of the Offered Debt Securities and payment therefor or (c)
any termination of this Agreement.
7. Conditions of the Obligations of You and the Underwriters: The
obligations of you and the Underwriters hereunder are subject to the following
conditions:
(a) at the Closing Date, (i) no stop order suspending the
effectiveness of the Registration Statement shall have been issued and
no proceedings for that purpose shall be pending or threatened by the
7
<PAGE> 8
Commission; and the Representatives shall have received a certificate,
dated the Closing Date and signed by the Chairman of the Board, the
President, an Executive Vice President or the Senior Vice
President-Finance and Treasurer of the Company (who may, as to
threatened proceedings, rely upon the best of his information and
belief), to that effect and to the effect set forth in clause (e) of
this Section 7, and (ii) the rating assigned by either Duff & Phelps
Credit Rating Co. or its successor or by Moody's Investors Service,
Inc. or its successor to any debt securities of the Company as of the
date of this Agreement shall not have been lowered since that date;
(b) the Representatives shall have received opinions, dated
the Closing Date and reasonably satisfactory to counsel retained by
the Representatives on behalf of the Underwriters, (A) from Messrs.
Cole, Raywid & Braverman, L.L.P. or such other special communications
counsel for the Company as may be reasonably satisfactory to the
Representatives, (B) from the General Counsel of the Company to the
following effect and covering such additional matters as the
Representatives may reasonably request:
(i) the Company and each of its significant
subsidiaries is a corporation duly organized, validly existing
and in good standing under the laws of the jurisdiction of its
incorporation and has the corporate power and authority to
carry on its business as described in the Prospectus (as
amended or supplemented, if applicable) and the Company has
the corporate power and authority to execute and deliver and
perform its obligations under this Agreement and to issue and
sell the Offered Debt Securities as contemplated by this
Agreement;
(ii) the Company and each of its significant
subsidiaries is duly qualified as a foreign corporation and is
in good standing in each jurisdiction in which the failure to
so qualify would, in the aggregate, have a material adverse
effect upon the financial condition, results of operations,
business or properties of the Company and its subsidiaries
taken as a whole;
(iii) all corporate proceedings legally required in
connection with the authorization and issuance of the Offered
Debt Securities and the sale of the Offered Debt Securities by
the Company in accordance with the terms of this Agreement
have been taken;
(iv) to the best knowledge of such counsel, there
is no legal or governmental proceeding pending or threatened
against the Company or any of its subsidiaries which is
required to be disclosed in the Prospectus (as amended or
supplemented, if applicable) and is not so disclosed and
correctly summarized therein;
(v) to the best knowledge of such counsel, there
is no contract or other document known to such counsel of a
character required to be described in the Prospectus (as
amended or supplemented, if applicable) or to be filed as an
exhibit to the Registration Statement (or to a document
incorporated by reference therein) that is not described or
filed as required;
(vi) the execution and delivery of this Agreement
and the Indenture, the issuance of the Offered Debt Securities
and the fulfillment of the terms herein and therein contained
do not conflict with, or result in a breach of, or constitute
a default under, the charter or by-laws of the Company or, to
the best knowledge of such counsel, conflict in any material
respect with, or result in a material breach of or constitute
a material default under any material agreement, indenture or
other instrument known to such counsel to which the Company or
any of its significant subsidiaries is a party or by which it
is bound, or result in a violation of any law, administrative
regulation or court or governmental decree known to such
counsel applicable to the Company or any of its subsidiaries,
except that such counsel need not express any opinion with
8
<PAGE> 9
respect to (i) matters opined upon by special communications
counsel and Messrs. Sherman & Howard or (ii) the Blue Sky or
securities laws of any jurisdiction; and
(vii) to the best knowledge of such counsel,
neither the Registration Statement nor the Prospectus, as
amended or supplemented, if applicable (except as to the
financial statements and schedules and any other financial and
statistical data contained or incorporated by reference in the
Registration Statement or Prospectus, as to which no opinion
need be expressed), contained, as of the date the Prospectus
was first filed with the Commission pursuant to Rule 424, or
contains, as of the Closing Date, any untrue statement of a
material fact or omits to state any material fact required to
be stated therein or necessary to make the statements therein
(in the case of the Prospectus as amended or supplemented, if
applicable, in light of the circumstances under which they
were made,) not misleading.
(C) from Messrs. Sherman & Howard, special counsel to the
Company, to the following effect and covering such additional matters
as the Representatives may reasonably request:
(i) the execution and delivery of this Agreement and the
Indenture, the issuance of the Offered Debt Securities and the
fulfillment of the terms herein and therein contained do not,
to the best knowledge of such counsel, result in a material
breach of or constitute a material default under any material
agreement for borrowed money known to such counsel to which
the Company or any of its significant subsidiaries is a party
or by which it is bound; and
(ii) the Company is not an "investment company" within
the meaning of the Investment Company Act of 1940, as amended,
and is not subject to regulation under such Act.
and (D) from Baker & Botts, L.L.P., special counsel to the
Company, or such other counsel to the Company as may be reasonably
satisfactory to the Representatives, to the following effect and
covering such additional matters as the Representatives may reasonably
request:
(i) this Agreement and the Indenture have been
duly authorized, executed and delivered by the Company; and
the Indenture is a legal, valid and binding agreement of the
Company enforceable in accordance with its terms, except (A)
as such enforceability may be limited by bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium
and other laws affecting creditors' rights generally, and (B)
that the remedy of specific performance and injunctive and
other forms of equitable relief are subject to certain
equitable defenses and to the discretion of the court before
which any proceeding therefor may be brought;
(ii) the Indenture has been duly qualified under,
and complies in all material respects with the requirements
of, the Trust Indenture Act;
(iii) the Offered Debt Securities, when executed
and authenticated in accordance with the terms of the
Indenture and delivered to and paid for by the Representatives
on behalf of the Underwriters in accordance with this
Agreement, will be legal, valid and binding obligations of the
Company entitled to the benefits of the Indenture and
enforceable in accordance with their terms, except (A) as such
enforceability may be limited by bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium and other
laws affecting creditors' rights generally, and (B) that the
remedy of specific performance and injunctive and other forms
of equitable relief are subject to certain equitable defenses
and to the discretion of the court before which any proceeding
therefor may be brought;
9
<PAGE> 10
(iv) the Registration Statement is effective under
the Act and, to the best knowledge of such counsel, no stop
order suspending the effectiveness of the Registration
Statement has been issued and no proceeding for that purpose
is pending or threatened by the Commission; and
(v) the Offered Debt Securities and the Indenture
conform in all material respects as to legal matters to the
descriptions thereof in the Prospectus.
In addition, such counsel shall state that: "The
Registration Statement and the Prospectus, as amended or
supplemented, if applicable (except as to (x) the financial
statements and schedules and any other financial and
statistical data contained or incorporated by reference
therein and (y) the documents incorporated or deemed to be
incorporated by reference therein, as to which no opinion is
expressed), complied, as of the date the Prospectus was first
filed with the Commission pursuant to Rule 424, and comply, as
of the date hereof, as to form in all material respects with
the requirements of the Act and the rules and regulations of
the Commission under the Act (the "Rules"). In passing upon
the form of such documents, we have necessarily assumed the
correctness and completeness of the statements made or
included therein by the Company and take no responsibility for
the accuracy, completeness or fairness of the statements
contained therein except insofar as such statements relate to
the description of the Offered Debt Securities and the
Indenture or relate to us. However, in connection with the
preparation of the Registration Statement and the Prospectus,
we had conferences with certain officers and other
representatives of the Company, and our examination of the
Registration Statement and the Prospectus and our discussions
in such conferences did not disclose to us any information
(relying as to the materiality of any such information
primarily upon officers and other representatives of the
Company) which gave us reason to believe that either the
Registration Statement or the Prospectus, as amended or
supplemented, if applicable (except as to (x) the financial
statements and schedules and any other financial and
statistical data contained or incorporated by reference in the
Registration Statement or Prospectus and (y) the documents
incorporated or deemed to be incorporated by reference
therein, as to which no opinion is expressed), contained, as
of the date the Prospectus was first filed with the Commission
pursuant to Rule 424, or contains, as of the date hereof, any
untrue statement of a material fact or omitted or omits to
state any material fact required to be stated therein or
necessary to make the statements therein (in the case of the
Prospectus, as amended, or supplemented, if applicable, in
light of the circumstances under which they were made) not
misleading."
In giving such opinions, such counsel may rely (x) as to
matters of fact, to the extent they deem proper, upon
certificates of officers of the Company, public officials and
others, and (y) as to matters of law if other than the United
States or Colorado (in the case of Messrs. Sherman & Howard
and General Counsel of the Company) or New York (in the case
of Baker & Botts, L.L.P.), on the opinions of local counsel
retained by them or the Company, provided that such counsel
are satisfactory to the Representatives and counsel retained
by the Representatives on behalf of the Underwriters;
(c) the Representatives shall have received on the Closing
Date from Messrs. Brown & Wood, counsel retained by the
Representatives on behalf of the Underwriters, an opinion to the
effect set forth in clauses (D)(i) and (iii) and to the effect that
the Registration Statement and the Prospectus, as amended or
supplemented, if applicable, (except as to (x) the financial
statements and schedules and any other financial and statistical data
contained or incorporated by reference therein, and (y) the documents
incorporated or deemed to be incorporated by reference therein, as to
which no opinion need be expressed) comply as to form in all material
respects with the Act. In addition, the Representatives shall have
received on the Closing Date from Messrs. Brown & Wood, or from other
counsel acceptable to the
10
<PAGE> 11
Representatives, an opinion with respect to the Registration Statement
and the Prospectus in the form customarily given by such firm;
(d) on the Closing Date the Representatives shall have
received a letter addressed to the Representatives from KPMG Peat
Marwick LLP, independent auditors for the Company, reasonably
satisfactory to the Representatives;
(e) the representations and warranties of the Company in this
Agreement shall be true and correct on and as of the Closing Date; the
Company shall have complied with all agreements and satisfied all
conditions on its part to be performed or satisfied at or prior to the
Closing Date; and except as reflected in or contemplated by the
Registration Statement and the Prospectus, since the respective dates
as of which information is given in the Registration Statement and the
Prospectus, there shall not have been, at the Closing Date, any
material adverse change in the condition (financial or otherwise),
business, prospects or results of operations of the Company and its
subsidiaries, considered as a whole; and
(f) subsequent to the date of this Agreement, there shall not
have occurred any change, or any development involving a prospective
change, in or affecting particularly the business, prospects or
financial affairs of the Company and its subsidiaries, considered as a
whole which, in the reasonable judgment of the Representatives, is so
material and adverse that it would be impracticable to proceed with
the public offering or delivery of the Offered Debt Securities on the
terms and in the manner contemplated by the Prospectus.
8. Termination of Agreement: The obligation of the Underwriters to
purchase the Offered Debt Securities may be terminated at any time prior to the
Closing Date by notice to the Company from the Representatives, without
liability on the part of the Underwriters to the Company, if, on or prior to
such date, (i) additional material governmental restrictions, not in force and
effect on the date of this Agreement, shall have been imposed upon trading in
securities generally or minimum or maximum prices shall have been generally
established on the New York Stock Exchange or on the American Stock Exchange,
or trading in securities generally shall have been suspended on either such
Exchange or trading in the common stock or debt securities of the Company in
the over-the-counter market shall have been suspended or a general banking
moratorium shall have been established by Federal or New York authorities, or
(ii) a war involving the United States of America or other national calamity
shall have occurred or shall have accelerated to such an extent as to affect
adversely the marketability of the Offered Debt Securities.
9. Default by One or More of the Underwriters: If one or more of the
Underwriters shall fail on the Closing Date to purchase the Offered Debt
Securities that it or they are obligated to purchase hereunder (the "Defaulted
Debt Securities"), the Representatives shall have the right, within 24 hours
thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any substitute underwriters, to purchase all, but not less
than all, of the Defaulted Debt Securities in such amounts as may be approved
by the Representatives and upon the terms herein set forth; if, however, the
Representatives have not completed such arrangements within such 24-hour
period, then:
(a) if the principal amount of Defaulted Debt Securities does
not exceed 10% of the aggregate principal amount of Offered Debt
Securities, the non-defaulting Underwriters shall be obligated to
purchase the full amount thereof in the proportions that their
respective underwriting obligations hereunder bear to the underwriting
obligations of all non-defaulting Underwriters, or
(b) if the principal amount of Defaulted Debt Securities
exceeds 10% of the aggregate principal amount of Offered Debt
Securities, the Company shall be entitled for an additional 24-hour
period to find
11
<PAGE> 12
one or more substitute underwriters satisfactory to the
Representatives in their reasonable discretion to purchase such
Defaulted Debt Securities.
In the event of any such default either the Representatives or the
Company shall have the right to postpone the Closing Date for a period not
exceeding seven days in order to effect any required changes in the
Registration Statement or Prospectus or in any other documents or arrangements
relating to the purchase of the Offered Debt Securities.
If the principal amount of Defaulted Debt Securities exceeds 10% of
the aggregate principal amount of Offered Debt Securities, and neither the
Representatives nor the Company make arrangements pursuant to this Section 9
within the period stated for the purchase of the Defaulted Debt Securities,
this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter to the Company except as provided in Section 6.
No action taken pursuant to this Section 9 shall relieve any
defaulting Underwriter from liability in respect of its default.
A substitute underwriter hereunder shall be an Underwriter for all
purposes of this Agreement.
10. Miscellaneous: Notice given pursuant to any of the provisions of
this Agreement shall be in writing and shall be mailed or delivered (a) to the
Company at its office, Terrace Tower II, 5619 DTC Parkway, Englewood, Colorado
80111-3000, attention: Donne F. Fisher, Executive Vice President (Principal
Financial Officer), or (b) to you at Merrill Lynch, Pierce, Fenner & Smith
Incorporated, North Tower, World Financial Center, New York, New York
10281-1305, attention: Debt Syndicate. Any notice under Section 8 hereof may
be made by telex or telephone, but if so made shall be subsequently confirmed
in writing.
This Agreement has been and is made solely for the benefit of the
Underwriters and the Company and of the controlling persons, directors and
officers referred to in Section 6 hereof, and their respective successors and
assigns, and no other person shall acquire or have any right under or by virtue
of this Agreement. The term "successors and assigns" as used in this Agreement
shall not include a purchaser, as such purchaser, of Offered Debt Securities
from any Underwriter.
12
<PAGE> 13
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 you and the Underwriters.
Very truly yours,
TCI COMMUNICATIONS, INC.
By: /s/ Bernard W. Schotters
----------------------------------------
Senior Vice President-Finance and Treasurer
Confirmed and Accepted,
as of the date first above written:
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ Rob Schmiedeler
-----------------------------
Title: Vice President
For themselves and as Representatives of the
other Underwriters named in Exhibit B hereto.
13
<PAGE> 14
EXHIBIT A
OFFERED DEBT SECURITIES
Designation: Remarketed Reset Notes Due September 15, 2010
Dated Date: September 13, 1995
Maturity: September 15, 2010
Authorized Denominations: $1,000 principal amount and any integral multiples of
$1,000 in excess thereof
Interest rate: 6.82%
Interest Payment Dates: March 15 and September 15, commencing March 15, 1996
Record Dates: March 1 and September 1
Sinking Fund: None
Optional Redemption: The Notes may not be redeemed prior to September 15, 1998.
A-1
<PAGE> 15
EXHIBIT B
<TABLE>
<CAPTION>
Principal Amount
Underwriter of Offered Debt Securities
----------- --------------------------
<S> <C>
Merrill Lynch, Pierce, Fenner & Smith
Incorporated $200,000,000
Total $200,000,000
============
</TABLE>
B-1
<PAGE> 1
EXHIBIT 1.2
REMARKETING AGREEMENT
REMARKETING AGREEMENT, dated as of September 8, 1995 (the "Remarketing
Agreement"), by and between TCI Communications, Inc. (the "Company") and Merrill
Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated ("Merrill
Lynch").
WHEREAS, the Company will issue $200,000,000 aggregate principal amount
of Remarketed Reset Notes Due September 15, 2010 (the "Notes"), such Notes to be
issued under the Indenture, dated as of August 4, 1993, as supplemented and
amended by a First Supplemental Indenture, dated as of September 13, 1994 (the
"Indenture"), between the Company and The Bank of New York, as trustee (the
"Trustee"); and
WHEREAS, the Notes are to be initially offered to the public through
Merrill Lynch; and
WHEREAS, the Company has requested Merrill Lynch to act as Rate Agent
(as defined in Section 2(a) hereof) and Remarketing Underwriter (as defined in
Section 2(a) hereof) in connection with the Notes and as such to perform the
services described herein; and
WHEREAS, Merrill Lynch is willing to act as Rate Agent and Remarketing
Underwriter in connection with the Notes and as such to perform such duties on
the terms and conditions expressly set forth herein.
<PAGE> 2
NOW, THEREFORE, for and in consideration of the covenants herein made,
and subject to the conditions herein set forth, the parties hereto agree as
follows:
Section 1. Definitions. Capitalized terms used and not defined in this
Agreement shall have the meanings assigned to them in the Notes and/or the
Indenture.
Section 2. Appointment and Obligations of Merrill Lynch. (a) The
Company hereby appoints Merrill Lynch and Merrill Lynch hereby accepts such
appointment, (i) as the rate agent (the "Rate Agent") of the Company to obtain
the rates necessary for the calculation of the New Interest Rate, and (ii) as
the exclusive remarketing underwriter (the "Remarketing Underwriter") for the
purpose of (x) recommending to the Company the Applicable Treasury Security and
the Spread for each Subsequent Interest Period that, in the opinion of the
Remarketing Underwriter, will enable the Remarketing Underwriter to remarket,
for delivery on the Tender Date, tendered Notes at 100% of the principal amount
thereof, (y) if the Company and the Remarketing Underwriter agree on the
Applicable Treasury Security and the Spread referred to in (x) above, entering
into a remarketing underwriting agreement (the "Remarketing Underwriting
Agreement") with the Company, substantially in the form attached hereto as
Exhibit A, pursuant to which the Remarketing Underwriter will agree to purchase
the Notes tendered by the beneficial owners thereof (the "Beneficial Owners")
and remarket such Notes (each such purchase and remarketing being hereinafter
referred to as a "Remarketing"),
2
<PAGE> 3
and (z) performing such other duties as are assigned to the Remarketing
Underwriter in the Notes and/or the Indenture and/or the applicable Remarketing
Underwriting Agreement.
(b) If at any time either or both of Standard & Poor's Ratings Services
and Moody's Investors Services, Inc. do not make available a rating for the
Notes required for the Rate Agent to calculate the Alternate Rate, the Rate
Agent, after consultation with the Company, shall select one or two, as the case
may be, nationally recognized securities rating agencies for such purpose.
Section 3. Fees and Expenses. The obligations of the Company to pay to
the Remarketing Underwriter on each Tender Date the fees set forth in the
applicable Remarketing Underwriting Agreement shall survive the termination of
this Agreement and remain in full force and effect until all such payments shall
have been made in full.
Section 4. Removal of the Rate Agent and Remarketing Underwriter. With
respect to any Subsequent Interest Period, the Company may in its absolute
discretion remove the Rate Agent and Remarketing Underwriter by giving notice to
the Rate Agent and Remarketing Underwriter prior to 3:00 p.m., New York City
time, on the Formula Date applicable thereto, such removal to be effective upon
the Company's appointment of a successor Rate Agent and Remarketing Underwriter.
In such case, the Company will use its best efforts to appoint a successor Rate
Agent and
3
<PAGE> 4
Remarketing Underwriter and enter into such a remarketing agreement with such
person as soon as reasonably practicable.
Section 5. Dealing in the Notes. Subject to its compliance with
applicable laws and regulations, Merrill Lynch, when acting as a Rate Agent and
Remarketing Underwriter or in its individual or any other capacity, may buy,
sell, hold and deal in any of the Notes. Merrill Lynch may exercise any vote or
join in any action which any beneficial owner of Notes may be entitled to
exercise or take with like effect as if it did not act in any capacity
hereunder. Merrill Lynch, in its individual capacity, either as principal or
agent, may also engage in or have an interest in any financial or other
transaction with the Company as freely as if it did not act in any capacity
hereunder.
Section 6. Current Prospectus. In connection with each Remarketing, if
and to the extent required by applicable law or regulations or interpretations
of the Securities and Exchange Commission in effect at the time of such
Remarketing, the Company shall furnish a current prospectus to be used by the
Remarketing Underwriter in such Remarketing.
Section 7. Conditions to Remarketing Underwriter's Obligations. The
obligations of the Remarketing Underwriter to purchase and remarket the Notes
shall be subject to the terms and conditions of the applicable Remarketing
Underwriting Agreement.
Section 8. Termination of Remarketing Agreement. This Agreement shall
terminate as to the Rate Agent and Remarketing
4
<PAGE> 5
Underwriter on the effective date of the removal of such Rate Agent and
Remarketing Underwriter pursuant to Section 4 hereof.
Section 9. Rate Agent's and Remarketing Underwriter's Performance; Duty
of Care. The duties and obligations of the Rate Agent and Remarketing
Underwriter hereunder shall be determined solely by the express provisions of
this Agreement and the Notes and the Indenture and, in the case of the
Remarketing Underwriter, the applicable Remarketing Underwriting Agreement.
Section 10. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed in such State.
Section 11. Term of Agreement. Unless otherwise terminated in
accordance with the provisions hereof, this Agreement shall remain in full force
and effect from the date hereof until the first day thereafter on which no Notes
are outstanding.
Section 12. Successors and Assigns. The rights and obligations of the
Company hereunder may not be assigned or delegated to any other person without
the prior written consent of Merrill Lynch. The rights and obligations of
Merrill Lynch hereunder may not be assigned or delegated to any other person
without the prior written consent of the Company. This Agreement shall inure to
the benefit of and be binding upon the Company and Merrill Lynch and their
respective successors and assigns. The terms "successors" and "assigns" shall
not include any purchaser of any Notes merely because of such purchase.
5
<PAGE> 6
Section 13. Headings. Section headings have been inserted in this
Agreement as a matter of convenience of reference only, and it is agreed that
such section headings are not a part of this Agreement and will not be used in
the interpretation of any provisions of this Agreement.
Section 14. Severability. If any provision of this Agreement shall be
held or deemed to be or shall, in fact, be invalid, inoperative or unenforceable
as applied in any particular case in any or all jurisdictions because it
conflicts with any provision of any constitution, statute, rule or public policy
or for any other reason, such circumstances shall not have the effect of
rendering the provision in question invalid, inoperative or unenforceable in any
other case, circumstances or jurisdiction, or of rendering any other provision
or provisions of this Agreement invalid, inoperative or unenforceable to any
extent whatsoever.
Section 15. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be regarded as an original and all of which
shall constitute one and the same document.
Section 16. Amendments. This Agreement may be amended by any instrument
in writing signed by each of the parties hereto.
Section 17. Notices. Unless otherwise specified, any notices, requests,
consents or other communications given or made hereunder or pursuant hereto
shall be made in writing or transmitted by any standard form of
telecommunication or by
6
<PAGE> 7
telephone and confirmed in writing. All written notices shall be deemed to be
validly given or made, if delivered by hand, when so delivered, or if mailed,
when mailed, registered or certified mail, return receipt requested and postage
prepaid. All notices by telecommunication (including telephone) shall be deemed
to be validly given or made when received. All such notices, requests, consents
or other communications shall be addressed as follows: if to the Company, to TCI
Communications, Inc., Terrace Tower II, 5619 DTC Parkway, Englewood, Colorado
80111-300, Attention: Bernard Schotters, Senior Vice President; and if to
Merrill Lynch, to Merrill Lynch, Pierce, Fenner & Smith Incorporated, Merrill
Lynch World Headquarters, North Tower, World Financial Center, New York, New
York 10281-1305, Attention: Debt Syndicate, or to such other address as either
of the above shall specify to the other in writing.
Section 18. Benefit. Nothing in this Agreement, express or implied, is
intended or shall be construed to confer upon or give any person other than the
parties hereto any remedy or claim under or by reason of this Agreement or any
term, covenant or condition hereof, all of which shall be for the sole and
exclusive benefit of the parties.
7
<PAGE> 8
IN WITNESS WHEREOF, each of the Company and Merrill Lynch has caused
this Agreement to be executed in its name and on its behalf by one of its duly
authorized officers as of the date first above written.
TCI COMMUNICATIONS, INC.
By /s/ Brendan R. Clouston
--------------------------
Name: Brendan R. Clouston
Title: President and Chief
Executive Officer
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER &
SMITH INCORPORATED
By /s/ Rob Schmiedeler
--------------------------
Name: Rob Schmiedeler
Title: Vice President
8
<PAGE> 9
EXHIBIT A
REMARKETING UNDERWRITING AGREEMENT
Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated hereby agrees to purchase the Notes described below (the "Notes")
that have been tendered by the holders thereof for sale on September 15, _____
(the "Tender Date").
It is acknowledged and agreed that the Notes need not be
further registered under the Securities Act of 1993, as amended (the "Act"), and
that, in connection with the remarketing of the Notes by the Remarketing
Underwriter in accordance with the terms of the Agreement, no prospectus meeting
the requirements of Section 10 of the Act need be delivered, or filed pursuant
to Rule 424 of the Act.
It is understood that the Remarketing Underwriter will deliver
to purchasers and prospective purchasers, in connection with the remarketing,
one or more forms of written communication describing the terms of the Notes
(each a "Remarketing Memorandum") the form of each of which shall be delivered
to the Company (not less than two Business Days prior to its use) and subject to
the approval of the Company prior to its use by the Remarketing Underwriter,
which approval shall not be unreasonably withheld.
The Remarketing Underwriter shall offer to purchase Notes and
purchase validly tendered Notes on the Tender Date in accordance with all
applicable laws and regulations and interpretations of the Securities and
Exchange Commission.
The provisions of Sections 4, 5, 6, 7 and 8 of the attached
Underwriting Agreement are incorporated in their entirety into this Agreement
and made applicable to the obligations of the Remarketing Underwriter to the
extent applicable to any remarketing of the Notes, except as explicitly amended
hereby. All references therein to "you" or to the "Underwriters" shall be deemed
to refer to the Remarketing Underwriter, all references to "Offered Debt
Securities" shall be deemed to refer to the Notes, all references to "the date
hereof," "the date of this Agreement" or words of similar effect shall be deemed
to refer to the date of this Remarketing Underwriter Agreement, all references
to the "Registration Statement" and the "Prospectus" shall be deemed to refer to
the registration statement and prospectus, if any, filed with the Securities and
Exchange Commission for the purpose of effecting the remarketing of the Notes
(except that if no registration statement or prospectus is required to be so
filed in connection with such remarketing, the term "Prospectus," for purposes
of Sections 5(c), 6 and 7(b)(D)(v) only, shall be deemed to refer to the
Remarketing Memorandum used by the Remarketing Underwriter
<PAGE> 10
and approved by the Company in connection with the remarketing the Notes, and
all references to the "Closing Date" shall be deemed to refer to the Tender
Date. For purposes of the fourth paragraph of Section 6 of the attached
Underwriting Agreement, amounts paid by the Remarketing Underwriter shall be
deemed the "total net proceeds from the offering of the Offered Debt Securities
received by the Company".
All capitalized terms not otherwise defined in this Agreement
have the meanings assigned thereto in the Notes, the form of which is attached
hereto.
<TABLE>
<S> <C>
Remarketing Underwriter Merrill Lynch & Co.
and address: Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Merrill Lynch World Headquarters
World Financial Center
North Tower
New York, New York 10281-1305
Title of Notes: Remarketed Reset Notes Due September
15, 2010
Principal Amount of Notes to be purchased: The aggregate principal amount of all
Notes tendered for resale
on the Tender Date.
Title of Note Indenture: Indenture, dated as of August 4,
1993, as amended and supplemented by
First Supplemental Indenture, dated
as of September 13, 1994, between TCI
Communications, Inc. (the "Company")
and The Bank of New York, as trustee.
Note Trustee: The Bank of New York
Current Ratings:
----------------------------------
Certain Terms of the Notes:
Maturity: September 15, 2010
Formula Date: ,
----- -- ----
Tender Notice Date: ,
----- -- ----
Rate Determination Date: ,
----- -- ----
Tender Date: ,
----- -- ----
New Interest Rate: As determined by application of the
Interest Rate Formula on the Rate
Determination Date.
</TABLE>
2
<PAGE> 11
<TABLE>
<S> <C>
Interest Rate Formula:
Applicable Treasury
Security: _____________________________
Spread: [Plus/Minus] ______ basis points.
Interest Payment Dates: March 15 and September 15
Subsequent Interest September 15, ____ to September 15, ____
Period:
Redemption Provisions: Redeemable as set forth in the
attached Prospectus Supplement dated
September 8, 1995.
Beneficial Owner As set forth in the attached
Tender Provisions: Prospectus Supplement dated September
8, 1995. In the event that the
Remarketing Underwriter fails to
purchase all Notes validly tendered
for purchase on the Tender Date, then
the Remarketing Underwriter shall
promptly notify the Company and the
Trustee of such failure.
Selection of Shorter In the event that (A) the Remarketing
Subsequent Interest Underwriter fails to purchase all
Period: Notes validly tendered for purchase
on the Tender Date for any reason,
and (B) the Company has not given notice of
redemption of all of the Notes then
outstanding in accordance with the
provisions described in the attached form of
the Notes, then the Company shall be
entitled, within three Business Days after
such Tender Date, to choose a shorter
Subsequent Interest Period, which Subsequent
Interest Period shall be deemed to have
commenced upon the Commencement Date that
coincides with the Tender Date, and the
Company shall promptly notify the
Remarketing Underwriter of such shorter
Subsequent Interest Period.
</TABLE>
3
<PAGE> 12
<TABLE>
<S> <C>
Indemnity for Excess In the event that (A) the Remarketing
Interest and Redemption Underwriter fails to purchase all
Expenses: Notes tendered for purchase on the
Tender Date for any reason (other than
failure of any of the conditions to the
obligations of the Remarketing Underwriter
contained in Section 7 of the Underwriting
Agreement and incorporated herein by
reference or termination of the
Underwriting Agreement by the Remarketing
Underwriter pursuant to Section 8 of the
Underwriting Agreement and incorporated
herein by reference or by the Company
without cause), such failure to purchase
hereinafter referred to as a "Failure",
and (B) the Company has not given notice
of redemption of all of the Notes then
outstanding in accordance with the
provisions described in the attached
Prospectus Supplement dated September 8,
1995, then the Company shall choose a
Subsequent Interest Period having a term
of one year and the Remarketing
Underwriter shall pay to the Company on
each Interest Payment Date during such
Subsequent Interest Period an amount equal
to the excess of (a) the aggregate
interest payable by the Company on the
Notes on such Interest Payment Date over
(b) the aggregate interest that would have
been payable by the Company on the Notes
pursuant to the Interest Rate Formula had
the Failure not occurred.
</TABLE>
4
<PAGE> 13
<TABLE>
<S> <C>
In the event that (A) a Failure occurs and
(B) the Company thereafter redeems all of
the Notes then outstanding (through notice
given on the first or second Business Day
following the Tender Date) through a
refinancing involving the issuance of new
debt securities (the "New Debt"), then the
Remarketing Underwriter shall pay to the
Company (X) the next Business Day
following such redemption, an amount equal
to the fees and expenses incurred by the
Company as a result of such refinancing
and an amount equal to interest accrued on
the Notes from the Commencement Date
coinciding with the Tender Date to the
date of such redemption, and (Y) subject
to the following paragraph, on each
interest payment date in respect of such
New Debt an amount equal to the excess of
(a) the lesser of (i) the aggregate
interest payable on the New Debt on such
interest payment date calculated at the
actual interest rate borne by the New Debt
and (ii) the aggregate interest that would
be payable on the New Debt on such
interest payment date if such New Debt
bore interest at the Alternate Rate for
the Subsequent Interest Period selected in
connection with determining the Interest
Rate Formula, over (b) the aggregate
interest that would have been payable by
the Company on the Notes for a period
equivalent to the interest period ending
on such interest payment date for the New
Debt, assuming the interest rate for the
Notes would have equaled that determined
pursuant to the Interest Rate Formula.
</TABLE>
5
<PAGE> 14
<TABLE>
<S> <C>
The obligation of the Remarketing
Underwriter to pay such indemnity in
either case shall cease upon the earlier
to occur of: (a) the first anniversary of
the Tender Date and (b) the subsequent
redemption of all Notes outstanding or New
Debt outstanding, as the case may be,
through any refinancing of the principal
amount of all such Notes or New Debt then
outstanding that results in an actual
effective interest rate on such principal
amount that is less than the rate that
would have been in effect on the Notes but
for the Failure; provided, however, that
such cessation of the obligation of the
Remarketing Underwriter to pay such
indemnity shall have no effect on the
obligation of the Remarketing Underwriter
to so indemnify the Company for such
amounts owed by the Remarketing
Underwriter to the Company prior to such
cessation.
</TABLE>
6
<PAGE> 15
<TABLE>
<S> <C>
Legal Opinion: The opinion required to be delivered
pursuant to Section 7(b)(D)(iii) of the
attached Underwriting Agreement shall be
modified to read in its entirety as
follows "(iii) the Notes have been duly
authorized; a single global Note
registered in the name of CEDE & Co., a
nominee of The Depository Trust Company
("DTC"), has been duly authenticated in
accordance with the provisions of the Note
Indenture, paid for and delivered to DTC,
and constitutes a valid and binding
obligation of the Company; and the
Underwriter will acquire the rights of a
bona fide purchaser (as such terms are
defined in the Uniform Commercial Code as
in effect in the State of New York (the
"UCC") in any portion of the Notes
transferred to the Underwriter by a prior
owner thereof as recorded on the books of
DTC, provided that (i) the portion of the
Notes transferred is an authorized
denomination of the Notes, (ii) the
transfer is recorded on the books of DTC
by a debit to the transferor's account
with DTC and a credit to the Underwriter's
account with DTC, (iii) the Underwriter
makes payment to such transferor of value
for such transfer and (iv) the Underwriter
purchases such interest in good faith and
without notice of any adverse claim,
within the meaning of the UCC.
The opinion required to be delivered
pursuant to Section 7(c) of the attached
Underwriting Agreement may be delivered by
any counsel designated by the Remarketing
Underwriter and reasonably acceptable to
the Company.
</TABLE>
7
<PAGE> 16
<TABLE>
<S> <C>
Form of Notes: Global certificate registered in the name
of the nominee of the depository of the
Notes, which currently is CEDE & Co. and
DTC, respectively. The beneficial owners
of the Notes ("Beneficial Owners") are not
entitled to receive definitive
certificates representing their Notes. A
Beneficial Owner's ownership of a Note
currently is recorded on or through the
records of the brokerage firm or other
entity that is a participant in DTC and
that maintains such Beneficial Owner's
account.
Purchase Price: 100% of the principal amount of the Notes.
Payable to DTC for the Beneficial Owners
of Tendered Notes.
Remarketing fee: ___% of the principal amount of the Notes
purchased by the Remarketing Underwriter.
___% of the principal amount of the Notes
not tendered for purchase on the Tender
Date that will remain outstanding after
the Tender Date.
Beneficial Owners who have an account at
the Remarketing Underwriter and tender
their Notes through such account will not
be required to pay any fee or commission
to the Remarketing Underwriter.
Closing Date; Tender Date: Baker & Botts, 885 Third Avenue, New
York, New York 10017, at 10:00 A.M., New
York City time, on the Tender Date.
</TABLE>
8
<PAGE> 17
The foregoing terms are hereby confirmed and agreed to as of
this ___ day of __________, _____.
TCI COMMUNICATIONS, INC.
By _________________________________
Title:
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
By ________________________________
Title:
9
<PAGE> 1
EXHIBIT 4.1
TCI COMMUNICATIONS, INC.
AND
THE BANK OF NEW YORK,
TRUSTEE
---------------
FIRST SUPPLEMENTAL INDENTURE
DATED AS OF SEPTEMBER 13, 1994
SUPPLEMENTAL TO INDENTURE
DATED AS OF AUGUST 4, 1993
---------------
SECURITIES
<PAGE> 2
FIRST SUPPLEMENTAL INDENTURE, dated as of September 13, 1994, between
TCI COMMUNICATIONS, INC., a Delaware corporation (formerly known as
Tele-Communications, Inc. and referred to herein as the "Company") and THE BANK
OF NEW YORK, a New York banking corporation ("Trustee"), as Trustee under the
indenture of the Company (the "Indenture") dated as of August 4, 1993.
On August 4, 1994, the Company and Liberty Media Corporation
("Liberty") each merged (the "Mergers") with separate wholly owned subsidiaries
of TCI/Liberty Holding Company, a new holding company formed by the Company and
Liberty. Under the terms of the respective Mergers, the Company and Liberty
were each the surviving corporations. In connection with the Mergers,
TCI/Liberty Holding Company changed its name to Tele-Communications, Inc. and
the Company changed its name to TCI Communications, Inc. As a result of the
foregoing, each of the Company and Liberty became wholly owned subsidiaries of
Tele-Communications, Inc.
The Indenture provides that the Company and the Trustee may, at any
time and from time to time, enter into one or more supplemental indentures for
the purpose of amending or supplementing the provisions of the Indenture to
make any change that in the opinion of the Board of Directors of the Company
(or any authorized committee thereof) does not materially adversely affect the
rights of any Holder of any Security.
The Company has duly authorized the execution and delivery of this
First Supplemental Indenture, and all things necessary have been done to make
this First Supplemental Indenture a valid and binding agreement of the Company.
For and in consideration of the premises, it is mutually covenanted
and agreed, for the benefit of each party hereto and for the equal and ratable
benefit of the respective Holders from time to time of the Securities or of
series thereof:
ARTICLE I
PROVISIONS OF GENERAL APPLICATION
1.1. DEFINITIONS.
For all purposes of the Indenture and this First Supplemental
Indenture, except as otherwise expressly provided or unless the context
otherwise requires:
(a) the words "herein", "hereof" and "hereunder" and
other words of similar import refer to the Indenture and this First
Supplemental Indenture as a whole and not to any particular Article, Section or
other subdivision; and
(b) certain capitalized terms are used herein as they are
defined in the Indenture.
<PAGE> 3
1.2. EFFECT OF HEADINGS.
The Article and Section headings herein are for convenience only and
shall not affect the construction hereof.
1.3. SUCCESSORS.
All agreements of the Company and the Trustee in this First
Supplemental Indenture and in the Indenture as amended and supplemented hereby
shall bind their respective successors.
1.4. SEPARABILITY CLAUSE.
In case any provision in this First Supplemental Indenture or in the
Indenture as amended and supplemented hereby shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
1.5. BENEFITS OF FIRST SUPPLEMENTAL INDENTURE.
Nothing in this First Supplemental Indenture, express or implied,
shall give to any person, other than the parties hereto and their successors
hereunder, any Agent and the Holders, any benefit or any legal or equitable
right, remedy or claim under this First Supplemental Indenture or the Indenture
as amended and supplemented hereby.
1.6. GOVERNING LAW.
This First Supplemental Indenture shall be governed by and construed
in accordance with the internal laws of the State of New York.
1.7. EFFECTIVENESS.
This First Supplemental Indenture shall take effect on the date hereof
and shall amend the provisions of the Indenture with respect to each series of
Securities issued under the Indenture.
1.8. CONCERNING THE TRUSTEE.
The Trustee assumes no duties, responsibilities or liabilities by
reason of this First Supplemental Indenture other than as set forth in the
Indenture. The Trustee assumes no responsibility for the correctness of the
statements herein contained, which shall be taken as statements of the Company.
This First Supplemental Indenture is executed and accepted by the Trustee
subject to all of the terms and conditions of its acceptance of the trust under
the Indenture, as fully as if said terms and conditions were herein set forth
at length.
-2-
<PAGE> 4
ARTICLE II
AMENDMENTS TO THE INDENTURE
2.1. THE PREAMBLE OF THE INDENTURE is hereby amended by deleting
the name "TELE-COMMUNICATIONS, INC." contained in the first sentence thereof
and substituting in lieu thereof the name "TCI COMMUNICATIONS, INC."
2.2. SECTION 1.01 OF THE INDENTURE ("DEFINITIONS") is hereby
amended as provided in clauses (a) and (b) below:
(a) by deleting the following defined terms and the
definitions thereof: "Company", "Change of Control" and "Controlling Person".
(b) by inserting in alphabetical order therein the
following defined terms and definitions thereof:
Change of Control means the occurrence of either of the
following events (to the extent applicable): (A) the acquisition by
any person (other than the Parent, the Company, any subsidiary of the
Parent or the Company, any employee stock ownership or other employee
benefit plan of the Parent or the Company or of any subsidiary of the
Parent or the Company, or any Controlling Person) during any period of
twelve (12) consecutive months of beneficial ownership of shares of
the Common Stock or Class B Stock or both of the Company representing
in the aggregate thirty percent (30%) or more of the combined voting
power of all shares of the Company's Common Stock and Class B Stock,
calculated on a fully diluted basis as of the date immediately prior
to the date of such acquisition (or, if there be more than one
acquisition during such twelve-month period, the date of the last such
acquisition); provided, however, that notwithstanding the foregoing,
no Change of Control shall be deemed to have occurred if and for so
long as the shares of the Common Stock and Class B Stock of the
Company beneficially owned by the Parent, the subsidiaries of the
Parent and the Controlling Persons represent in the aggregate 30% or
more of the combined voting power of all shares of the Company's
Common Stock and Class B Stock calculated on a fully diluted basis, or
(B) for so long as the Company is a subsidiary of the Parent, the
acquisition by any person (other than the Parent, any subsidiary of
the Parent, any employee stock ownership plan or other employee
benefit plan of the Parent or any subsidiary of the Parent, or any
Controlling Person) during any period of twelve (12) consecutive
months of beneficial ownership of shares of the Class A or Class B
Common Stock or both of the Parent representing in the aggregate
thirty percent (30%) or more of the combined voting power of all
shares of the Parent's Class A and Class B Common Stock, calculated on
a fully diluted basis as of the date immediately prior to the date of
such acquisition (or, if there be more than one acquisition during
such twelve-month period, the date of the last such acquisition);
provided, however, that notwithstanding
-3-
<PAGE> 5
the foregoing no Change of Control shall be deemed to have occurred if
and for so long as the shares of the Parent's Class A and Class B
Common Stock beneficially owned by the Controlling Persons represent
in the aggregate 30% or more of the combined voting power of all
shares of the Parent's Class A and Class B Common Stock calculated on
a fully diluted basis.
Company means TCI Communications, Inc., a Delaware
corporation, until a successor replaces it pursuant to the applicable
provisions of this Indenture and thereafter means the successor.
Controlling Person means each of (1) the Chairman of the Board
of the Company as of August 4, 1993, (2) the President of the Company
as of August 4, 1993, (3) each of the directors of the Company as of
August 4, 1993, (4) the respective family members, estates and heirs
of each of the persons referred to in clauses (1) through (3) above
and any trust or other investment vehicle for the primary benefit of
any of such persons or their respective family members or heirs, (5)
Kearns-Tribune Corporation, a Delaware corporation or any successor
thereto by merger or consolidation and (6) the trustee under the
Parent's Employee Stock Purchase Plan or any successor plan or any
other employee stock ownership or other employee benefit plan of the
Parent or the Company or of any subsidiary of the Parent or the
Company. As used with respect to any person, the term "family member"
means the spouse, siblings and lineal descendants of such person. The
trustee under the Parent's Employee Stock Purchase Plan or any
successor plan or any other employee stock ownership or other employee
benefit plan of the Parent or the Company or of any subsidiary of the
Parent or the Company shall be deemed to have beneficial ownership of
all shares of common stock of the Parent or the Company held under the
plan, whether or not allocated to or vested in participants' accounts.
Parent means Tele-Communications, Inc., a Delaware
corporation, and any successor thereof.
2.3. SECTION 11.02 OF THE INDENTURE ("NOTICES") is hereby amended by
deleting the address for the Company specified in the first paragraph thereof
and inserting in lieu thereof the following:
"TCI Communications, Inc.
Terrace Tower II
5619 DTC Parkway
Englewood, Colorado 80111-3000
Attention: Bernard W. Schotters,
Senior Vice President-Finance
and Treasurer"
* * * *
-4-
<PAGE> 6
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed as of the day and year first above
written.
TCI COMMUNICATIONS, INC.
By /s/ Bernard W. Schotters
-----------------------------
Senior Vice President-Finance
and Treasurer
Attest: (SEAL)
/s/ Stephen M. Brett
---------------------------------
Secretary
THE BANK OF NEW YORK
Trustee
By /s/ Walter N. Gitlin
-----------------------------
Vice President
-5-
<PAGE> 1
EXHIBIT 4.2
GLOBAL CERTIFICATE
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR
IN PART FOR NOTES OF DEFINITIVE FORM, THIS
NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE
BY THE DEPOSITARY TO A NOMINEE OF THE
DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY
TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH
NOMINEE TO A SUCCESSOR DEPOSITARY OR A
NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
No. R-1 $200,000,000
TCI COMMUNICATIONS, INC.
Remarketed Reset Note Due September 15, 2010
CUSIP 872287 AD9
TCI Communications, Inc., a corporation duly organized and existing
under the laws of the State of Delaware (herein referred to as the "Company"),
for value received, hereby promises to pay to CEDE & CO. or registered assigns,
in the Borough of Manhattan, The City of New York, the principal sum of TWO
HUNDRED MILLION DOLLARS ($200,000,000), on September 15, 2010, in such coin or
currency of the United States of America as at the time of payment shall be
legal tender for the payment of public and private debts, and to pay interest
(computed on the basis of a 360-day year of twelve 30-day months) semiannually
on March 15 and September 15 of each year, commencing March 15, 1996, on the
principal amount of this Global Note, in like coin or currency, at the rate per
annum from time to time in effect as set forth below, from the most recent date
to which interest has been paid or, if no interest has been paid, from
September 13, 1995. The interest so payable on any March 15 or September 15
will, subject to certain exceptions provided in the Indenture referred to
below, be paid to the person in whose name this Global Note is registered at
the close of business on the March 1 and September 1 preceding such March 15 or
September 15, respectively.
This Global Note is issued in respect of a duly authorized issue of
Securities of the Company, designated as the Remarketed Reset Notes due
September 15, 2010 of the Company (herein called the "Notes"), limited (except
as otherwise provided in the
<PAGE> 2
Indenture referred to below) in aggregate principal amount to $200,000,000.
The Notes represent one of a duly authorized series of Securities of the
Company, issued and to be issued in one or more series under an Indenture,
dated as of August 4, 1993, as supplemented by a First Supplemental Indenture,
dated as of September 13, 1994 (such Indenture, as so supplemented, is
hereinafter referred to as the "Indenture"), between the Company and The Bank
of New York, as trustee (herein called the "Trustee"). The terms of the Notes
include those stated in the Indenture and those made part of the Indenture by
the Trust Indenture Act of 1939, as amended (the "Act"). The Notes are subject
to all such terms, and beneficial owners of interests in this Global Note are
referred to the Indenture and the Act for a statement of them. All terms used
in this Global Note which are defined in the Indenture shall have the meanings
assigned to them in the Indenture. The Notes of this series are general and
unsecured obligations of the Company.
Except as provided below, owners of beneficial interests in the Notes
evidenced by this Global Note will not be entitled to receive definitive Notes
evidencing such ownership. Beneficial interests in the Notes will be held
through a depositary selected by the Company, which initially is The
Depository Trust Company (the "Depositary"). This Global Note will be
deposited with and held by the Depositary and is registered in the name of the
Depositary's nominee. So long as the Depositary's nominee is the registered
owner of this Global Note, such nominee for all purposes will be considered the
sole owner of the Notes under the Indenture. If the Depositary is at any time
unwilling or unable to continue as depositary and a successor depositary is not
appointed by the Company within 90 calendar days of its receipt of notice from
the Depositary to such effect, the Company will issue Notes in definitive form
in exchange for this Global Note. In addition, the Company may at any time
determine not to have the Notes represented by a Global Note. In either
instance, an owner of a beneficial interest in this Global Note will be
entitled to have Notes equal in principal amount to such beneficial interest
registered in its name and will be entitled to physical delivery of such Notes
in definitive form. Notes so issued in definitive form will be issued in
denominations of $1,000 and any integral multiple thereof and will be issued in
registered form only, without coupons.
The interest rate per annum with respect to the Notes applicable
during the three-year interest period ending September 15, 1998 will be 6.82%.
Each subsequent interest period (a "Subsequent Interest Period") will be the
period of at least one year and not more than five years designated by the
Company in its sole discretion, commencing on any September 15 (a "Commencement
Date") and ending one, two, three, four or five years subsequent, as the case
may be, through and including 2010 (except that no Subsequent Interest Period
may end after
2
<PAGE> 3
September 15, 2010). The rate of interest per annum that will be applicable
during each Subsequent Interest Period (the "New Interest Rate") will be
determined on the Rate Determination Date (as defined below) with respect to
such Subsequent Interest Period (except as provided in the second and eighth
succeeding paragraphs). The Interest Rate Formula for each Subsequent Interest
Period shall be (1) the rate for the Applicable Treasury Security (as defined
below), plus or minus (2) the Spread (as defined below). The "Applicable
Treasury Security" shall mean direct obligations of the United States (which
may be obligations traded on a when-issued basis only) having the maturity
agreed upon by the Company and the Remarketing Underwriter (as defined below).
The rate for the Applicable Treasury Security will be the bid side rate
displayed at 10:00 A.M., New York City time, on the relevant Rate Determination
Date in the Telerate system (or if the Telerate system is (a) no longer
available on such Rate Determination Date or (b) in the opinion of the Rate
Agent (as defined below) no longer an appropriate system from which to obtain
such rate, such other nationally recognized quotation system as, in the opinion
of the Rate Agent, is appropriate). If such rate is not so displayed, the rate
for the Applicable Treasury Security shall be, as calculated by the Rate Agent,
the yield to maturity for the Applicable Treasury Security, expressed as a bond
equivalent on the basis of a year of 365 or 366 days, as applicable, and
applied on a daily basis, and computed by taking the arithmetic mean of the
secondary market bid rates, as of 10:30 A.M., New York City time, on such Rate
Determination Date of three leading United States government securities dealers
selected by the Rate Agent (which may include the Rate Agent or an affiliate
thereof). The "Spread" shall be the number of basis points (a) recommended by
the Remarketing Underwriter so as to result in a rate that, in the opinion of
the Remarketing Underwriter, will enable tendered Notes to be remarketed by the
Remarketing Underwriter at 100% of the principal amount thereof, and (b) agreed
to by the Company.
Unless notice of redemption of the Notes as a whole has been given,
the Applicable Treasury Security and the Spread for each Subsequent Interest
Period and the duration of such Subsequent Interest Period will be established
by 3:00 P.M., New York City time, on the sixth Business Day prior to the
Commencement Date of such Subsequent Interest Period (the "Formula Date"). The
"Rate Determination Date" for any Subsequent Interest Period will be the third
Business Day following the Formula Date relating to such Subsequent Interest
Period. The term "Business Day" means any day other than a Saturday or Sunday
or a day on which commercial banks in The City of New York are required or
authorized to close or a day on which the New York Stock Exchange is closed for
trading.
In the event that the Company and the Remarketing Underwriter do not
agree on the Applicable Treasury Security or
3
<PAGE> 4
the Spread for any Subsequent Interest Period, the New Interest Rate for such
Subsequent Interest Period will be the Alternate Rate for such Subsequent
Interest Period. The "Alternate Rate" for the Notes for any Subsequent
Interest Period will be the percentage set forth below of the Alternate
Treasury Rate (as defined below) based on the prevailing rating of the Notes in
effect at the close of business on the Business Day preceding the Rate
Determination Date for such Subsequent Interest Period:
<TABLE>
<CAPTION>
Prevailing Rating Percentage
----------------- ----------
<S> <C>
Aaa/AAA 120%
Aa3/AA- 125%
A3/A- 135%
Baa3/BBB- 150%
Below Baa3/BBB- 200%
</TABLE>
For purposes of this definition, the "prevailing rating" of the Notes shall be
(i) Aaa/AAA, if the Notes have a rating of Aaa by Moody's Investors Service,
Inc. or its successor ("Moody's") and AAA by Standard & Poor's Rating Services
(a division of the McGraw Hill Companies, Inc.) or its successor ("S&P") or the
equivalent of such ratings by a substitute rating agency or substitute rating
agencies selected as provided below, (ii) if not Aaa/AAA, then Aa3/AA-, if the
Notes have a rating of Aa3 or better by Moody's and AA- or better by S&P or the
equivalent of such ratings by a substitute rating agency or substitute rating
agencies selected as provided below, (iii) if not Aaa/AAA or Aa3/AA-, then
A3/A-, if the Notes have a rating of A3 or better by Moody's and A- or better
by S&P or the equivalent of such ratings by a substitute rating agency or
substitute rating agencies selected as provided below, (iv) if not Aaa/AAA,
Aa3/AA- or A3/A-, then Baa3/BBB-, if the Notes have a rating of Baa3 or better
by Moody's and BBB- or better by S&P or the equivalent of such ratings by a
substitute rating agency or substitute rating agencies selected as provided
below, and (v) if not Aaa/AAA, Aa3/AA-, A3/A- or Baa3/BBB-, then Below
Baa3/BBB-. If Moody's or S&P or both shall not make such a rating available,
the Rate Agent shall select a nationally recognized securities rating agency or
two nationally recognized securities rating agencies to act as substitute
rating agency or substitute rating agencies, as the case may be.
The term "Alternate Treasury Rate" for any Subsequent Interest Period
means the rate for the most recent auction of direct obligations of the United
States having the period to maturity equal to the term of such Subsequent
Interest Period (or if the term of the Subsequent Interest Period is four
years, the average of the rates for such obligations having three years and
five years, respectively, to maturity), as made available in H.15(519) under
the heading "Treasury Constant Maturities" by 3:00 P.M., New York City time, on
the Rate Determination Date for
4
<PAGE> 5
such Subsequent Interest Period. If such rate or rates, as the case may be,
are not so made available by 3:00 P.M., New York City time, on such Rate
Determination Date, the Alternate Treasury Rate shall be, as calculated by the
Rate Agent, the yield to maturity for the most recent auction of direct
obligations of the United States having the period to maturity equal to the
term of such Subsequent Interest Period, expressed as a bond equivalent on the
basis of a year of 365 or 366 days, as applicable, and applied on a daily
basis, and computed by taking the arithmetic mean of the secondary market bid
rates, as of 3:30 P.M., New York City time, on such Rate Determination Date of
three leading United States government securities dealers selected by the Rate
Agent (which may include the Rate Agent or an affiliate thereof).
All percentages resulting from any calculation of the New Interest
Rate will be rounded, if necessary, to the nearest hundredth of a percentage
point, with five one thousandths of a percentage point rounded upward.
Unless notice of redemption of the Notes as a whole has been given,
the Company will cause a notice to be published on the Business Day following
the Formula Date for each Subsequent Interest Period in the manner described
below, specifying (l) the term of such Subsequent Interest Period, (2) the
specific Interest Rate Formula for such Subsequent Interest Period (including
the Applicable Treasury Security and the Spread) or, if applicable, the
Alternate Rate, and (3) the identity of the Remarketing Underwriter, if
applicable. Such notice will be given by publication in a daily newspaper in
the English language of general circulation in The City of New York.
In the event the Company and the Remarketing Underwriter agree on the
Applicable Treasury Security and the Spread on the Formula Date with respect to
any Subsequent Interest Period, the Company and the Remarketing Underwriter
shall enter into a Remarketing Underwriting Agreement (the "Remarketing
Underwriting Agreement") on such Formula Date, under which the Remarketing
Underwriter will agree, subject to the terms and conditions set forth therein,
to purchase on September 15, 1998 and on any September 15 thereafter (or, if
not a Business Day, on the next succeeding Business Day) immediately following
the end of a Subsequent Interest Period (the "Tender Date") all Notes with
respect to which the Remarketing Underwriter receives a Tender Notice as
described below at 100% of the principal amount thereof (the "Purchase Price").
In such event (except as otherwise provided in the next succeeding paragraph),
each beneficial owner of a Note may, at such owner's option, upon giving notice
as provided below (the "Tender Notice"), tender such Note for purchase by the
Remarketing Underwriter on the Tender Date at the Purchase Price. The Purchase
Price will be paid by the Remarketing Underwriter in accordance with the
standard
5
<PAGE> 6
procedures of the Depositary. Interest accrued on the Notes with respect to
the preceding interest period will be paid in the manner described above.
The Tender Notice must be received by the Remarketing Underwriter
during the period commencing on the Business Day following the Formula Date and
ending at 5:00 P.M., New York City time, on the second Business Day following
the Formula Date (the "Notice Date"). Except as otherwise provided below, a
Tender Notice shall be irrevocable. If a Tender Notice is not received for any
reason by the Remarketing Underwriter with respect to any Note by 5:00 P.M.,
New York City time, on the Notice Date the beneficial owner of such Note shall
be deemed to have elected not to tender such Note for purchase by the
Remarketing Underwriter.
The obligation of the Remarketing Underwriter to purchase Notes will
be subject to the conditions precedent set forth in the Remarketing
Underwriting Agreement. In addition, the Remarketing Underwriting Agreement
will provide for the termination thereof by the Remarketing Underwriter upon
the occurrence of certain events. In the event that, with respect to any
Subsequent Interest Period, the Remarketing Underwriter does not for any reason
purchase on the relevant Tender Date all of the Notes for which a Tender Notice
shall have been given, (1) all such Tender Notices shall be null and void, (2)
none of the Notes for which such Tender Notices shall have been given shall be
purchased by the Remarketing Underwriter on such Tender Date, (3) the Company
shall be entitled within three Business Days of the relevant Tender Date to
choose a shorter Subsequent Interest Period (but not less than one year), which
Subsequent Interest Period shall be deemed to have commenced on the
Commencement Date that coincides with such Tender Date, (4) the New Interest
Rate for such Subsequent Interest Period on all of the Notes shall be (a) the
greater of the Alternate Rate for such Subsequent Interest Period and the rate
determined pursuant to the Interest Rate Formula for such Subsequent Interest
Period or (b) if the Company chooses a shorter Subsequent Interest Period, the
Alternate Rate for such shorter Subsequent Interest Period and (5) the Notes
will be redeemable at the option of the Company, in whole but not in part, at a
redemption price equal to 100% of the principal amount thereof, together with
accrued interest to the redemption date, upon at least 10 Business Days prior
notice published in a daily newspaper in the English language of general
circulation in The City of New York on the first or second Business Day
following the relevant Tender Date.
No beneficial owner of any Note shall have any rights or claims under
the Remarketing Underwriting Agreement or against the Company or the
Remarketing Underwriter as a result of the Remarketing Underwriter not
purchasing such Note, except as provided in clause (4) of the last sentence of
the preceding paragraph. The Company shall have no obligation under any
6
<PAGE> 7
circumstance to repurchase any Notes, except in the case of Notes called for
redemption as described below.
If the Remarketing Underwriter does not purchase all Notes tendered
for purchase on any Tender Date, it will promptly notify the Company and the
Trustee. As soon as practicable after receipt of such notice, the Company will
cause a notice to be published setting forth the term of the Subsequent
Interest Period and the New Interest Rate for such Subsequent Interest Period.
Such notice will be published in a daily newspaper in the English language of
general circulation in The City of New York.
The term "Remarketing Underwriter" means the nationally recognized
broker-dealer selected by the Company to act as remarketing underwriter. The
term "Rate Agent" means the nationally recognized broker-dealer selected by the
Company as its agent to determine the New Interest Rate for any Subsequent
Interest Period (the "Rate Agent"). Pursuant to a Remarketing Agreement dated
as of September 8, 1995 with the Company, Merrill Lynch, Pierce, Fenner & Smith
Incorporated has agreed to act as the initial Remarketing Underwriter and the
initial Rate Agent. The Company, in its sole discretion, may change the
Remarketing Underwriter and the Rate Agent for any Subsequent Interest Period
at any time on or prior to 3:00 P.M., New York City time, on the Formula Date
relating thereto.
The Notes may not be redeemed by the Company before September 15,
1998. On that date and on any September 15 thereafter immediately following
the end of a Subsequent Interest Period, the Notes may be redeemed, at the
option of the Company, in whole or in part, upon notice given at any time
during the 45 calendar day period ending on the applicable Formula Date
(provided that notice of any partial redemption must be given at least 15
calendar days prior to the redemption date), at a redemption price equal to
100% of the principal amount thereof, together with accrued interest to such
redemption date. In the event of any redemption of less than all the
outstanding Notes, the particular Notes to be redeemed will be selected by the
Company by such method as the Company shall deem fair and appropriate. So long
as this Global Note is held by the Depositary, the Company will give notice to
the Depositary, and the Depositary will determine the principal amount to be
redeemed from the account of each of its participants. Notice of redemption of
the Notes will be given by publication in a daily newspaper in the English
language of general circulation in The City of New York.
In the event that a Change of Control occurs on or before September
15, 2010, and, during the period commencing 90 days prior to public disclosure
of the occurrence of such Change of Control and ending 90 days after such
public disclosure, the
7
<PAGE> 8
rating of the Notes is downgraded to lower than BBB- by Duff & Phelps Credit
Rating Co. ("D&P") or lower than Baa3 by Moody's, and, in the event that such
downgrading occurs prior to such disclosure, the rating assigned to the Notes
by D&P or Moody's as of the close of business on the date of such public
disclosure remains lower than BBB- or lower than Baa3, respectively, the
beneficial owner of each Note will have the right to put all or part of such
Note to the Company for purchase at a purchase price of 100% of the principal
amount thereof, plus interest accrued and unpaid to the date fixed for
purchase, upon the terms and conditions specified in the Indenture and subject
to the rules and practices of the Depositary.
In case an Event of Default with respect to the Notes, as defined in
the Indenture, shall have occurred and be continuing, the principal hereof may
be declared, and upon such declaration shall become, due and payable, in the
manner, with the effect and subject to the provisions provided in the
Indenture.
Subject to certain exceptions, the Indenture or the Securities of any
series may be amended or supplemented, and any past default or compliance with
any provision may be waived insofar as the Securities of any series are
concerned, with the consent of the holders of a majority in principal amount of
the outstanding Securities of such series. Without the consent of any
Securityholder, the Company and the Trustee may amend or supplement the
Indenture or the Securities of any series to cure any ambiguity, defect or to
make certain other specified changes or any change that, in the opinion of the
Board of Directors, does not materially adversely affect the interests of any
Securityholder.
The Company, the Trustee, and any agent of the Company or the Trustee
may treat the registered holder hereof as the absolute owner of this Global
Note for all purposes.
A director, officer, employee or stockholder, as such, of the Company
or the Trustee shall not have any liability for any obligations of the Company
or the Trustee under the Notes or the Indenture or for any claim based on, in
respect of, or by reason of such obligations or their creation. Each
beneficial owner of an interest in this Global Note, by accepting such
interest, waives and releases all such liability. The waiver and release are
part of the consideration for the issue of the Notes.
When a successor corporation assumes all of the obligations of its
predecessor under the Notes and the Indenture, the predecessor corporation will
be released from those obligations.
This Global Note shall not be valid or become obligatory for any
purpose until the Certificate of Authentication hereon shall have been signed
by the Trustee.
8
<PAGE> 9
IN WITNESS WHEREOF, TCI Communications, Inc. has caused this Global
Note to be signed manually or by facsimile by its President or its Chairman of
the Board and by its Treasurer or its Secretary, and has caused its corporate
seal to be affixed hereunto or imprinted hereon.
Dated: September 13, 1995
TCI COMMUNICATIONS, INC.
By: /s/ Brendan R. Clouston
--------------------------------
President
By: /s/ Stephen M. Brett
--------------------------------
Secretary
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein and
referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK
as Trustee
By /s/ Walter Gitlin
----------------------------------
Authorized Signatory
9
<PAGE> 1
[BAKER & BOTTS L.L.P. LETTERHEAD]
EXHIBIT 5.1
September 13, 1995
TCI Communications, Inc.
Terrace Tower II
5619 DTC Parkway
Englewood, CO 80111
Gentlemen:
Reference is made to the registration statement on Form S-3 (File No.
33-60982) (the "Registration Statement") filed by TCI Communications, Inc.
(formerly Tele-Communications, Inc.), a Delaware corporation (the "Company"),
in connection with the proposed offering from time to time by the Company of
its senior, senior subordinated or subordinated debt securities (the "Debt
Securities"), and certain other securities of the Company. As described in the
Registration Statement, the Company may, among other Debt Securities, offer
Senior Debt Securities to be issued under an Indenture, dated as of August 4,
1993, as amended and supplemented by a First Supplemental Indenture, dated as
of September 13, 1994 (as so amended and supplemented, the "Indenture"),
between the Company and The Bank of New York, as Trustee (the "Trustee").
On September 8, 1995, the Company entered into an underwriting
agreement (the "Underwriting Agreement") with Merrill Lynch, Pierce, Fenner &
Smith Incorporated (the "Underwriter") pursuant to which the Company agreed to
sell to the Underwriter, subject to the conditions stated in the Underwriting
Agreement, $200,000,000 aggregate principal amount of a series of the Company's
Senior Debt Securities designated as its Remarketed Reset Notes due September
15, 2010 (the "Securities"). On September 8, 1995, the Company also entered
into a remarketing agreement (the "Remarketing Agreement") with the
Underwriter. You have asked us to pass upon for you certain legal matters in
connection with the Securities.
In connection therewith, we have examined, among other things, copies
of the Restated Certificate of Incorporation and By-Laws of the Company, each
as amended; the Underwriting Agreement; the Remarketing Agreement; the
Indenture; copies of records of proceedings of the Company's Board of
Directors, including committees thereof; and such other documents, records,
certificates and questions of law as we deemed necessary or appropriate for the
purpose of this opinion. In rendering this opinion, we have assumed the
authenticity of all documents submitted to us as originals and the conformity
to authentic original documents of all documents submitted
<PAGE> 2
BAKER & BOTTS
L.L.P.
TCI Communications, Inc.
September 13, 1995
Page 2
to us as certified, conformed or reproduction copies. We have further assumed
that the Indenture, the Underwriting Agreement and the Remarketing Agreement
have been duly and validly authorized, executed and delivered by, and
constitute the valid and binding obligations of, the parties thereto other than
the Company.
Based upon the foregoing, we are of the opinion that:
The Securities have been duly authorized and, when duly executed by
the proper officers of the Company, authenticated and delivered by the Trustee
in accordance with the Indenture and issued and sold to the Underwriter
pursuant to the terms of the Underwriting Agreement, they will be legally
issued, valid and binding obligations of the Company entitled to the benefits
of the Indenture and enforceable in accordance with their terms, except (A) as
such enforceability may be limited by bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium and other laws affecting the rights of
creditors generally, and (B) that equitable remedies may not be available.
We hereby consent to the reference to us under the heading "Validity
of the Securities" in the Prospectus Supplement dated September 8, 1995 to the
Prospectus dated September 8, 1995 forming a part of the Registration Statement
and to the incorporation of this opinion by reference into the Registration
Statement. In giving the foregoing consent, we do not admit that we are in the
category of persons whose consent is required under Section 7 of the Securities
Act of 1933, as amended, or the rules and regulations of the Securities and
Exchange Commission promulgated thereunder.
Very truly yours,
BAKER & BOTTS, L.L.P.
