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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15 of the
Securities Exchange Act of 1934
Date of Report: August 1, 1995
Date of Earliest Event Reported: July 27, 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
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ITEM 5. OTHER EVENTS.
Pursuant to a registration statement on Form S-3 (File No. 33-
60982) (the "Registration Statement") filed with the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933, as amended (the
"Act"), and declared effective by the Commission on July 26, 1993, the
Registrant has registered its senior, senior subordinated and subordinated debt
securities (the "Debt Securities"), and certain other securities of the Company,
for delayed or continuous offering to the public pursuant to Rule 415 under the
Act for a maximum aggregate initial offering price of $3 billion (or the
equivalent thereof denominated in one or more foreign currencies, foreign
currency units or composite currencies). Reference is made to the Registration
Statement for further information concerning the terms of the Debt Securities
registered pursuant to the Registration Statement and the offering thereof.
On July 27, 1995, an underwriting agreement (the "Underwriting
Agreement"), substantially in the form of Exhibit 1.1 to the Registration
Statement, was executed by Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner &
Smith Incorporated, Bear, Stearns & Co. Inc., Lehman Brothers Inc., Morgan
Stanley & Co. Incorporated and Salomon Brothers Inc, as representatives (the
"Representatives") of the several underwriters named therein (the
"Underwriters") providing for the sale by the Registrant to, and the offering to
the public by, the Underwriters of $350,000,000 principal amount of the
Registrant's 8% Senior Notes due August 1, 2005 (the "Notes") and $750,000,000
principal amount of the Registrant's 8 3/4% Senior Debentures due
August 1, 2015 (the "Debentures" and, together with the Notes, the
"Securities"), both of which are a series of senior Debt Securities. The net
proceeds to the Registrant from the sale of the Securities will be
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$1,085,212,500, 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.
The Securities will be issued pursuant to an indenture, dated
as of July 26, 1993, in the form filed as Exhibit 4.9 to the Company's Current
Report on Form 8-K, dated July 26, 1993, as amended and supplemented by a First
Supplemental Indenture, dated as of September 13, 1994 in the form filed as
Exhibit 4.1 to the Company's Current Report on Form 8-K, dated September 21,
1994 (as so amended and supplemented, the "Indenture"), between the Company and
Shawmut Bank Connecticut, National Association, as Trustee. 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 July 27, 1995 (the "Prospectus"), and (ii) to the sections entitled
"Description of Securities" and "Underwriting" in the Prospectus Supplement
thereto, dated July 27, 1995 (the "Prospectus Supplement"), each of which has
been filed with the Commission pursuant to Rule 424(b) under the Act. The form
of Note and the form of Debenture are filed as Exhibits 4.1 and 4.2 hereto,
respectively.
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 July 31, 1995, Baker & Botts, L.L.P. rendered to
the Registrant an opinion (the
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"Opinion") as to such matters specifically relating to the Securities. 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 form of Note, the form of
Debenture, 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 form of
Note, the form of Debenture, the Opinion, the Consent or the information set
forth herein represent, either individually or in the aggregate, a "fundamental
change" (as such term is used in Item 512(a)(1)(ii) of Regulation S-K) in the
information set forth in the Registration Statement.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND
EXHIBITS.
Exhibits
1.1 Underwriting Agreement, dated July 27, 1995, between the
Representatives on behalf of the several Underwriters named in
Exhibit B thereto and the Registrant.
4.1 Form of 8% Senior Note due August 1, 2005.
4.2 Form of 8 3/4% Senior Debenture due August 1, 2015.
5.1 Opinion, dated July 31, 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).
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the Registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
Dated: July 31, 1995
TCI COMMUNICATIONS, INC.
(Registrant)
By: /s/ Stephen M. Brett
----------------------------
Name: Stephen M. Brett
Title: Senior Vice President
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EXHIBIT INDEX
Exhibits
1.1 Underwriting Agreement, dated July 27, 1995, between the
Representatives on behalf of the several Underwriters named in
Exhibit B thereto and the Registrant.
4.1 Form of 8% Senior Note due August 1, 2005.
4.2 Form of 8 3/4% Senior Debenture due August 1, 2015.
5.1 Opinion, dated July 31, 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).
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EXHIBIT 1.1
UNDERWRITING AGREEMENT
July 27, 1995
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
BEAR, STEARNS & CO. INC.
LEHMAN BROTHERS INC.
MORGAN STANLEY & CO. INCORPORATED
SALOMON BROTHERS INC
as Representatives of the several Underwriters
c/o 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
$350,000,000 principal amount of its 8% Senior Notes due August 1, 2005 (the
"Senior Notes") and $750,000,000 principal amount of its 8 3/4% Senior
Debentures due August 1, 2015 (the "Senior Debentures" and, together with the
Senior Notes, the "Offered Debt Securities") pursuant to an indenture dated as
of July 26, 1993, as amended and supplemented by a First Supplemental Indenture
dated as of September 13, 1994 (as the same may be further amended or
supplemented, the "Indenture"), with Shawmut Bank Connecticut, National
Association, as trustee (the "Trustee"). Each Offered Debt Security will be
issuable in the denominations and shall have the terms set forth in Exhibit A.
The term "Underwriters" as used herein will mean and refer collectively to you
and to the other several Underwriters named in Exhibit B (and any substitute
underwriter pursuant to Section 9 hereof), the term "Underwriter" will refer to
any of the several Underwriters named in Exhibit B (and any substitute
underwriter pursuant to Section 9 hereof), and the term "Representatives" will
refer to you in your capacity as the Representatives of the several
Underwriters. Any reference to you in this Agreement shall be solely in your
capacity as Representatives. The Company confirms as follows its agreement with
you and the Underwriters.
1. Registration Statement and Prospectus: The Company has filed with
the Securities and Exchange Commission (the "Commission"), in accordance with
the Securities Act of 1933, as amended, and the rules and regulations of the
Commission promulgated thereunder (collectively called the "Act"), a shelf
registration statement on Form S-3 (File No. 33-60982), including a prospectus,
relating to debt securities of the Company (the "Debt Securities") issuable from
time to time in one or more series, including the Offered Debt Securities, Class
A Common Stock Warrants of the Company issuable from time to time in one or more
series, and shares of Class A Common Stock, $1.00 par value per share, of the
Company (the "Common Stock") issuable from time to time upon conversion of
convertible Debt Securities or exercise of Class A Common Stock Warrants, which
has become effective under the Act, and will promptly file with the Commission a
prospectus supplement specifically relating to the Offered Debt Securities
pursuant to Rule 424 under the Act. As used in this Agreement, the term
"Registration Statement" means such registration statement, including exhibits
and financial statements and schedules and documents incorporated by reference
therein, as amended or supplemented to the date hereof and, in the case of
references to the Registration Statement as of a date subsequent to the date
hereof, as amended or supplemented as of such date. The term "Basic Prospectus"
means the prospectus dated July 27, 1995 to be filed with the Commission
pursuant to Rule 424 under the Act. The term "Prospectus" means the Basic
Prospectus together with
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the prospectus supplement specifically relating to the Offered Debt Securities
as filed with the Commission pursuant to Rule 424 under the Act. The term
"preliminary prospectus" means any preliminary prospectus supplement
specifically relating to the Offered Debt Securities together with the Basic
Prospectus. Any reference herein to any preliminary prospectus or the Prospectus
shall be deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the Act, as of the date of such
preliminary prospectus or the Prospectus, as the case may be, and any reference
herein to any amendment or supplement to any preliminary prospectus or the
Prospectus, except the reference in Section 4(c), shall be deemed to refer to
and include any documents filed after such date under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), and so incorporated by reference.
2. Agreements to Sell and Purchase: The Company agrees to sell to the
Underwriters, and upon the basis of the representations, warranties and
agreements of the Company herein contained and subject to the 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,
(i) at a purchase price of 98.85% of the principal amount of the Notes plus
accrued interest, if any, from August 1, 1995, and (ii) at a purchase price of
98.565% of the principal amount of the Debentures, plus accrued interest, if
any, from August 1, 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 August 1, 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
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of any supplement to the Prospectus, (2) of any comments of the
Commission regarding the Registration Statement or the Prospectus (or
any of the documents incorporated by reference therein) or of any
request by the Commission for amendments or supplements to the
Registration Statement or the Prospectus or for additional information,
(3) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the initiation or
threatening of any proceedings for that purpose, (4) of the receipt by
the Company of any notification with respect to the suspension of the
qualification of the Offered Debt Securities for offer or sale in any
jurisdiction or the initiation or threatening of any proceedings for
such purpose and (5) of the happening of any event during the period
mentioned in paragraph (d) below which makes any statement of a
material fact made in the Registration Statement or the Prospectus (as
theretofore amended or supplemented) untrue or which requires the
making of any changes in the Registration Statement or the Prospectus
(as theretofore amended or supplemented) in order to make the
statements therein, in light of the circumstances when the Prospectus
is delivered to a purchaser, not misleading. The Company will use its
reasonable best efforts to prevent the issuance of any order suspending
the effectiveness of the Registration Statement or suspending the
qualification of the Offered Debt Securities for offer or sale in any
jurisdiction, and if any 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.
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(e) Prior to any public offering of the Offered Debt
Securities by the Underwriters, the Company will cooperate with you and
counsel retained by you on behalf of the Underwriters in connection
with the registration or qualification of the Offered Debt Securities
for offer and sale under the securities or Blue Sky laws of, and the
determination of the eligibility of the Offered Debt Securities for
investment under the laws of, such jurisdictions as you request;
provided, that in no event shall the Company be obligated to qualify to
do business as a foreign corporation or as a securities dealer in any
jurisdiction where it is not now so qualified, to conform its
capitalization or the composition of its assets to the securities or
Blue Sky laws of any jurisdiction or to take any action which would
subject it to taxation or general service of process in any
jurisdiction where it is not now so subject. The Company will pay all
reasonable fees and expenses (including reasonable counsel fees and
expenses) relating to qualification of the Offered Debt Securities
under such securities or Blue Sky laws and in connection with the
determination of the eligibility of the Offered Debt Securities for
investment under the laws of such jurisdictions as you may designate.
(f) The Company will make generally available to its security
holders and to you and to each Underwriter who may request the same
consolidated earnings statements (which need not be audited) that
satisfy the provisions of Section 11 (a) of the Act and Rule 158
thereunder.
(g) The Company will pay all expenses in connection with (1)
the preparation, printing and filing of the Registration Statement, any
preliminary prospectus, the Prospectus, any legal investment memorandum
and Blue Sky memorandum as contemplated by Section 4(e), (2) the
preparation, issuance and delivery of the Offered Debt Securities
(other than transfer taxes) and the execution and 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
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respect to any such document was filed, when such amendment was
filed), contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which
they were made, not misleading; and no such further document, when it
is filed, will contain an untrue statement of a material fact or will
omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which they are made, not misleading;
(b) the Registration Statement, when declared effective by the
Commission, complied in all material respects with the requirements of
the Act; each preliminary prospectus, if any, relating to the Offered
Debt Securities, filed pursuant to Rule 424 under the Act, will comply
when so filed in all material respects with the Act; and when the
Prospectus is first filed with the Commission pursuant to Rule 424 and
as of the Closing Date, the Registration Statement and the Prospectus
(as amended or supplemented, if applicable) will comply in all material
respects with the requirements of the Act and the Indenture will comply
in all material respects with the requirements of the Trust Indenture
Act of 1939, as amended (the "Trust Indenture Act"). When it was
declared effective by the Commission, the Registration Statement did
not, and as of the date the Prospectus is first filed with the
Commission pursuant to Rule 424 and as of the Closing Date the
Registration Statement (as amended or supplemented, if applicable) will
not, contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading. When the Prospectus is first filed
with the Commission pursuant to Rule 424 and as of the Closing Date,
the Prospectus (as amended or supplemented, if applicable) will not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading. Notwithstanding the foregoing, this
representation and warranty does not apply to statements or omissions
in the Registration Statement or the Prospectus or any preliminary
prospectus made in reliance upon information furnished to the Company
in writing by the Underwriters through the Representatives expressly
for use therein or to that part of the Registration Statement which
consists of the Statements of Eligibility and Qualification on Form T-1
under the Trust Indenture Act of the trustees for the Debt Securities;
(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
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(g) except to the extent set forth in the Prospectus, the
Company has not received any notice of, nor does it have any actual
knowledge of, any failure by it or any of its significant subsidiaries
to be in substantial compliance with all existing statutes and
regulations applicable to it or such subsidiaries, which failure would
materially and adversely affect the conduct of the business of the
Company and its subsidiaries, considered as a whole.
6. Indemnification: The Company agrees to indemnify and hold harmless
each Underwriter, and each person, if any, who controls each Underwriter within
the meaning of either Section 15 of the Act or Section 20 of the Exchange Act,
from and against any and all losses, claims, damages, liabilities and expenses
(including reasonable costs of investigation) arising out of or based upon any
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus or in any amendment or supplement
thereto or in any preliminary prospectus, or arising out of or based upon any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, except insofar as such
losses, claims, damages, liabilities or expenses arise out of or are based upon
any such untrue statement or omission or allegation thereof based upon
information furnished in writing to the Company by an Underwriter through the
Representatives expressly for use therein; provided, however, the Company shall
not indemnify an Underwriter or any person who controls such Underwriter from
any such losses, claims, damages or liabilities alleged by any person who
purchased Offered Debt Securities from such Underwriter if the untrue statement,
omission or allegation thereof upon which such losses, claims, damages or
liabilities are based was made in: (i) any preliminary prospectus, if a copy of
the Prospectus (as then amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) was not sent or given by or on
behalf of such Underwriter to such person at or prior to the written
confirmation of the sale of Offered Debt Securities to such person, and if the
Prospectus (as so amended or supplemented) corrected the untrue statement or
omission giving rise to such loss, claim, damage or liability; (ii) any
Prospectus used by such Underwriter or any person who controls such Underwriter,
after such time as the Company advised the Representatives that the filing of a
post-effective amendment or supplement thereto was required, except the
Prospectus as so amended or supplemented; or (iii) any Prospectus used after
such time as the obligation of the Company to keep the same current and
effective has expired. This indemnity will be in addition to any liability which
the Company may otherwise have. All fees and expenses which are reimbursable
pursuant to this Section 6 shall be reimbursed as they are incurred.
If any action or proceeding (including any governmental investigation)
shall be brought or asserted against an Underwriter or any person controlling an
Underwriter in respect of which indemnity may be sought from the Company, such
Underwriter or such controlling person shall promptly notify the Company in
writing, and the Company shall assume the defense thereof, including the
employment of counsel reasonably satisfactory to you and the payment of all
expenses. Any omission so to notify the Company shall not, 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
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action or proceeding or separate but substantially similar or related actions or
proceedings arising out of the same general allegations or circumstances, be
liable for the reasonable fees and expenses of more than one separate firm of
attorneys (unless the members of such firm are not admitted to practice in a
jurisdiction where an action is pending, in which case the Company shall pay the
reasonable fees and expenses of one additional firm of attorneys to act as local
counsel in such jurisdiction, provided the services of such counsel are
substantially limited to that of appearing as attorneys of record) at any time
for all indemnified parties, which firm shall be designated in writing by you.
The Company shall not be liable for any settlement of any such action or
proceeding effected without its written consent, but if settled with its written
consent, or if there be a final judgment for the plaintiff in any such action or
proceeding, the Company agrees to indemnify and hold harmless each Underwriter
and any such controlling person from and against any loss or liability by reason
of such settlement or judgment.
Each Underwriter severally agrees to indemnify and hold harmless the
Company, its directors and each of its officers, and each person, if any, who
controls the Company within the meaning of either Section 15 of the Act or
Section 20 of the Exchange Act, to the same extent as the foregoing indemnity
from the Company to each Underwriter, but only with respect to information
furnished in writing by such Underwriter through the Representatives expressly
for use in the Registration Statement, the Prospectus, or any amendment or
supplement thereto, or any preliminary prospectus. In case any action or
proceeding shall be brought against the Company or its directors or officers or
any such controlling person, in respect of which indemnity may be sought against
one or more of the several Underwriters, such Underwriters acting through the
Representatives shall have the rights and duties given to the Company, and the
Company or its directors or officers or such controlling person shall have the
rights and duties given to you and the several Underwriters, by the preceding
paragraph.
If the indemnification provided for in this Section 6 is unavailable to
an indemnified party under the first or third paragraph hereof in respect of any
losses, claims, damages or liabilities referred to therein (other than by reason
of such indemnified party's failure to comply with the first sentence of the
second paragraph of this Section 6), then each applicable indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the amount paid
or payable by such indemnified party as a result of such losses, claims, damages
or liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the
other hand from the offering of the Offered Debt Securities or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company on
the one hand and of the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Underwriters
on the other in connection with the offering of the Offered Debt Securities
shall be deemed to be in the same proportion as the total net proceeds from the
offering of the Offered Debt Securities received by the Company bear to the
total underwriting discounts received by the Underwriters in respect thereof.
The relative fault of the Company on the one hand and of the Underwriters on the
other shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or 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
7
<PAGE> 8
damages which the Underwriters have otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section 11
(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
The indemnity and contribution agreements contained in this Section 6
and the representations and warranties of the Company contained in this
Agreement shall remain operative and in full force and effect regardless of (a)
any investigation made by or on behalf of any Underwriter, by or on behalf of
any person controlling any Underwriter or by or on behalf of the Company, (b)
acceptance of any of the Offered Debt Securities and payment therefor or (c) any
termination of this Agreement.
7. Conditions of the Obligations of You and the Underwriters: The
obligations of you and the Underwriters hereunder are subject to the following
conditions:
(a) at the Closing Date, (i) no stop order suspending the
effectiveness of the Registration Statement shall have been issued and
no proceedings for that purpose shall be pending or threatened by the
Commission; and the Representatives shall have received a certificate,
dated the Closing Date and signed by the Chairman of the Board, the
President, an Executive Vice President or the Senior Vice
President-Finance and Treasurer of the Company (who may, as to
threatened proceedings, rely upon the best of his information and
belief), to that effect and to the effect set forth in clause (e) of
this Section 7, and (ii) the rating assigned by either Duff & Phelps
Credit Rating Co. or its successor or by Moody's Investors Service,
Inc. or its successor to any debt securities of the Company as of the
date of this Agreement shall not have been lowered since that date;
(b) the Representatives shall have received opinions, dated
the Closing Date and reasonably satisfactory to counsel retained by the
Representatives on behalf of the Underwriters, (A) from Messrs. 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
8
<PAGE> 9
disclosed in the Prospectus (as amended or supplemented, if
applicable) and is not so disclosed and correctly summarized
therein;
(v) to the best knowledge of such counsel, there is no
contract or other document known to such counsel of a
character required to be described in the Prospectus (as
amended or supplemented, if applicable) or to be filed as an
exhibit to the Registration Statement (or to a document
incorporated by reference therein) that is not described or
filed as required;
(vi) the execution and delivery of this Agreement and the
Indenture, the issuance of the Offered Debt Securities and the
fulfillment of the terms herein and therein contained do not
conflict with, or result in a breach of, or constitute a
default under, the charter or by-laws of the Company or, to
the best knowledge of such counsel, conflict in any material
respect with, or result in a material breach of or constitute
a material default under any material agreement, indenture or
other instrument known to such counsel to which the Company or
any of its significant subsidiaries is a party or by which it
is bound, or result in a violation of any law, administrative
regulation or court or governmental decree known to such
counsel applicable to the Company or any of its subsidiaries,
except that such counsel need not express any opinion with
respect to (i) matters opined upon by special communications
counsel and Messrs. Sherman & Howard or (ii) the Blue Sky or
securities laws of any jurisdiction; and
(vii) to the best knowledge of such counsel, neither the
Registration Statement nor the Prospectus, as amended or
supplemented, if applicable (except as to the financial
statements and schedules and any other financial and
statistical data contained or incorporated by reference in the
Registration Statement or Prospectus, as to which no opinion
need be expressed), contained, as of the date the Prospectus
was first filed with the Commission pursuant to Rule 424, or
contains, as of the Closing Date, any untrue statement of a
material fact or omits to state any material fact required to
be stated therein or necessary to make the statements therein
(in the case of the Prospectus as amended or supplemented, if
applicable, in light of the circumstances under which they
were made,) not misleading.
(C) from Messrs. Sherman & Howard, special counsel to the
Company, to the following effect and covering such additional matters
as the Representatives may reasonably request:
(i) the execution and delivery of this Agreement and the
Indenture, the issuance of the Offered Debt Securities and the
fulfillment of the terms herein and therein contained do not,
to the best knowledge of such counsel, result in a material
breach of or constitute a material default under any material
agreement for borrowed money known to such counsel to which
the Company or any of its significant subsidiaries is a party
or by which it is bound; and
(ii) the Company is not an "investment company" within the
meaning of the Investment Company Act of 1940, as amended, and
is not subject to regulation under such Act.
and (D) from Baker & Botts, L.L.P., special counsel to the
Company, or such other counsel to the Company as may be reasonably
satisfactory to the Representatives, to the following effect and
covering such additional matters as the Representatives may reasonably
request:
(i) this Agreement and the Indenture have been duly
authorized, executed and delivered by the Company; and the
Indenture is a legal, valid and binding agreement of the
Company enforceable in accordance with its terms, except (A)
as such enforceability may be limited by bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium
and other laws
9
<PAGE> 10
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;
(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."
10
<PAGE> 11
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
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.
11
<PAGE> 12
9. Default by One or More of the Underwriters: If one or more of the
Underwriters shall fail on the Closing Date to purchase the Offered Debt
Securities that it or they are obligated to purchase hereunder (the "Defaulted
Debt Securities"), the Representatives shall have the right, within 24 hours
thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any substitute underwriters, to purchase all, but not less than
all, of the Defaulted Debt Securities in such amounts as may be approved by the
Representatives and upon the terms herein set forth; if, however, the
Representatives have not completed such arrangements within such 24-hour period,
then:
(a) if the principal amount of Defaulted Debt Securities does
not exceed 10% of the aggregate principal amount of Offered Debt
Securities, the non-defaulting Underwriters shall be obligated to
purchase the full amount thereof in the proportions that their
respective underwriting obligations hereunder bear to the underwriting
obligations of all non-defaulting Underwriters, or
(b) if the principal amount of Defaulted Debt Securities
exceeds 10% of the aggregate principal amount of Offered Debt
Securities, the Company shall be entitled for an additional 24-hour
period to find one or more substitute underwriters satisfactory to the
Representatives in their reasonable discretion to purchase such
Defaulted Debt Securities.
In the event of any such default either the Representatives or the
Company shall have the right to postpone the Closing Date for a period not
exceeding seven days in order to effect any required changes in the Registration
Statement or Prospectus or in any other documents or arrangements relating to
the purchase of the Offered Debt Securities.
If the principal amount of Defaulted Debt Securities exceeds 10% of the
aggregate principal amount of Offered Debt Securities, and neither the
Representatives nor the Company make arrangements pursuant to this Section 9
within the period stated for the purchase of the Defaulted Debt Securities, this
Agreement shall 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.
This Agreement shall be governed by and construed in accordance with
the internal laws of the State of New York.
12
<PAGE> 13
Please confirm that the foregoing correctly sets forth the agreement
between the Company and you md the Underwriters.
Very truly yours,
TCI COMMUNICATIONS, INC.
By: /s/ BERNARD 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
BEAR, STEARNS & CO. INC.
LEHMAN BROTHERS INC.
MORGAN STANLEY & CO. INCORPORATED
SALOMON BROTHERS INC
By: MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ GREG G. SEIBERT
-----------------------------------
Title: Managing Director
For themselves and as Representatives of the other Underwriters named in Exhibit
B hereto.
13
<PAGE> 14
EXHIBIT A
DEBT SECURITIES
NOTES:
Designation: Senior
Dated Date: August 1, 1995
Maturity: August 1, 2005
Authorized Denominations: $1,000 principal amount and any integral
multiple thereof
Interest rate: 8%
Interest Payment Dates: February 1 and August 1, commencing February 1,
1996
Record Dates: January 15 and July 15
Sinking Fund: None
Optional Redemption: None
DEBENTURES:
Designation: Senior
Dated Date: August 1, 1995
Maturity: August 1, 2015
Authorized Denominations: $1,000 principal amount and any integral
multiple thereof
Interest rate: 8 3/4%
Interest Payment Dates: February 1 and August 1, commencing February 1,
1996
Record Dates: January 15 and August 15
Sinking Fund: None
Optional Redemption: None
A-1
<PAGE> 15
EXHIBIT B
<TABLE>
<CAPTION>
Principal Amount Principal Amount
Underwriter of Notes of Debentures
----------- -------- -------------
<S> <C> <C>
Merrill Lynch, Pierce, Fenner & Smith
Incorporated $ 61,600,000 $132,000,000
Bear, Stearns & Co. Inc. 61,600,000 132,000,000
Lehman Brothers Inc. 61,600,000 132,000,000
Morgan Stanley & Co. Incorporated 61,600,000 132,000,000
Salomon Brothers Inc 61,600,000 132,000,000
BA Securities, Inc. 7,000,000 15,000,000
Chemical Securities Inc. 7,000,000 15,000,000
Credit Lyonnais Securities (USA) Inc. 7,000,000 15,000,000
C.J. Lawrence/Deutsche Bank Securities Corporation 7,000,000 15,000,000
SBC Capital Markets Inc. 7,000,000 15,000,000
Societe Generale 7,000,000 15,000,000
Total $350,000,000 $750,000,000
============ ============
</TABLE>
B-1
<PAGE> 1
EXHIBIT 4.1
[SECURITIES CERTIFICATE]
REGISTERED REGISTERED
NUMBER
-------------- -----------------
R TCI COMMUNICATIONS, INC.
-------------- -----------------
8% SENIOR NOTE DUE AUGUST 1, 2005 CUSIP 872287 AB 3
TCI COMMUNICATIONS, INC., a Delaware corporation,
promises to pay to
or registered assigns
the principal sum of DOLLARS on August 1, 2005
INTEREST Payment Dates: February 1 and August 1, commencing February 1, 1996.
Record Dates: January 15 and July 15.
DATED: TCI COMMUNICATIONS, INC.
CERTIFICATE OF AUTHENTICATION: BY Bob Magness
------------------------
The undersigned certifies that this is one of the CHAIRMAN OF THE BOARD
Securities of the series designated herein
referred to in the within-mentioned Indenture.
Stephen M. Brett
SHAWMUT BANK CONNECTICUT, NATIONAL ASSOCIATION, ------------------------
as Trustee SECRETARY
[TCI COMMUNICATIONS, INC. CORPORATE SEAL]
BY
AUTHORIZED OFFICER
<PAGE> 2
TCI COMMUNICATIONS, INC.
8% SENIOR NOTE DUE AUGUST 1, 2005
1. Interest.
TCI Communications, Inc. (the "Company"), a Delaware corporation, promises
to pay interest on the principal amount of this Note (as defined below) at the
rate per annum shown above. The Company will pay interest semiannually on
February 1 and August 1 of each year, commencing February 1, 1996. Interest on
this Note will accrue from the most recent date to which interest has been paid
or, if no interest has been paid, from August 1, 1995. Interest will be
computed on the basis of a 360-day year of twelve 30-day months.
2. Method of Payment.
The Company will pay interest on this Note (except defaulted interest)
to the persons who are registered holders of this Note at the close of business
on the fifteenth day of the month preceding the interest payment date. Holders
must surrender Notes to a Paying Agent to collect premium, if any, and
principal payments. The Company will pay principal, premium, if any, and
interest in money of the United States that at the time of payment is legal
tender for payment of public and private debts. The Company may, however, pay
principal, premium, if any, and interest by its check payable in such money.
It may mail an interest check to a holder's registered address.
3. Paying Agent and Registrar.
Initially, Shawmut Bank Connecticut, National Association ("Trustee") will
act as Paying Agent and Registrar and Shawmut Trust Company, at 14 Wall Street,
8th Floor, New York, New York, will act as an additional paying agent and
co-Registrar. The Company may change any Paying Agent, Registrar or
co-Registrar without notice. The Company or any of its Subsidiaries may act as
Paying Agent, Registrar or co-Registrar.
4. Indenture.
This Note is one of a duly authorized issue of Securities of the Company
(the "Notes"), issued and to be issued in one or more series under an Indenture
dated as of July 26, 1993, as amended and supplemented by a First Supplemental
Indenture, dated as of September 13, 1994 (the "Indenture") between the Company
and the Trustee. The terms of the Notes include those stated in the Indenture
and those made part of the Indenture by the Trust Indenture Act of 1939, as
amended (15 U.S. Code Sections 77aaa-77bbbb) (the "Act"). The Notes are
subject to all such terms, and Noteholders are referred to the Indenture and the
Act for a statement of them. All terms used in this Note which are defined in
the Indenture shall have the meanings assigned to them in the Indenture. This
Note is one of the series designated on the face hereof. The Notes of this
series are general unsecured obligations of the Company limited to $350,000,000
in aggregate principal amount.
5. No Redemption.
The Notes may not be redeemed by the Company prior to maturity, and are not
entitled to the benefits of a sinking fund.
6. Change of Control.
In the event that a Change of Control occurs on or before August 1,
2005, and, during the period commencing 90 days prior to public disclosure of
the occurrence of such Change of Control and ending 90 days after such public
disclosure, the rating of the Notes is downgraded to lower than BBB- by Dull &
Phelps Credit Rating Co. ("D&P") or lower than Baa3 by Moody's Investors
Service, Inc. ("Moody's"), and, in the event that such downgrading occurs prior
to such public disclosure, the rating assigned to the Notes by D&P or Moody's
as of the close of business on the date of such public disclosure remains lower
than BBB- or lower than Baa3, respectively, the holder of this Note will have
the right to put all or part of this Note to the Company for purchase at a
purchase price of 100% of the principal amount hereof, plus interest accrued
and unpaid to the date fixed for purchase, upon the terms and conditions
specified in the Indenture.
7. Denominations, Transfer, Exchange.
The Notes are in registered form without coupons in denominations of $1,000
and integral multiples of $1,000. A holder may transfer or exchange Notes in
accordance with the Indenture. The Registrar may require a holder, among other
things, to furnish appropriate endorsements and transfer documents and to pay
any taxes and fees required by law or permitted by the Indenture.
8. Persons Deemed Owners.
The registered holder of a Note may be treated as the owner of it for all
purposes.
9. Unclaimed Money.
If money for the payment of principal, premium, if any, or interest
remains unclaimed for two years, the Trustee or Paying Agent will pay the money
back to the Company at its request. After that, holders entitled to the money
must look to the Company for payment unless an abandoned property law
designates another person.
10. Amendment, Supplement, Waiver.
Subject to certain exceptions, the Indenture or the Securities of any
series may be amended or supplemented, and any past default or compliance with
any provision may be waived insofar as the Securities of any series are
concerned, with the consent of the holders of a majority in principal amount of
the outstanding Securities of such series. Without the consent of any
Securityholder, the Company and the Trustee may amend or supplement the
Indenture or the Securities of any series to cure any ambiguity, defect, or
inconsistency or to provide for uncertificated Securities in addition to
certificated Securities or to make certain other specified changes or any change
that does not materially adversely affect the rights of any Securityholder.
11. Successor Corporation.
When a successor corporation assumes all the obligations of its predecessor
under the Notes and the Indenture, the predecessor corporation will be released
from those obligations.
12. Defaults and Remedies.
An Event of Default is: default for 30 days in payment of any interest on
any Note; default in payment of principal or premium, if any, on any Note;
failure by the Company, for 30 days after receipt of notice from the Trustee or
the holders of at least 25% in principal amount of the outstanding Notes, to
comply with any of its other agreements in the Indenture (other than an
agreement which has expressly been included in the Indenture solely for the
benefit of Securities of any series other than this series) or the Notes;
acceleration of Debt of the Company (including Securities of any other series)
representing in excess of five percent (5%) of the aggregate principal amount of
the Company's Funded Debt then outstanding unless, within 30 days after receipt
of notice by the Company from the Trustee or the holders of at least 25% in
principal amount of the outstanding Notes, such acceleration has been rescinded
or annulled, such Debt has been paid or the Company shall have contested such
acceleration in good faith and by appropriate proceedings and have obtained and
thereafter maintained a stay of all consequences thereof that would have a
material adverse effect on the Company; and certain events of bankruptcy or
insolvency. If an Event of Default with respect to the Notes shall occur and be
continuing, the principal of, and the premium, if any, and accrued interest on,
the Notes may be declared or may become due and payable in the manner and with
the effect provided in the Indenture. In the event of a declaration of
acceleration under the Indenture with respect to the Notes because an Event of
Default has occurred due to the acceleration of Debt of the Company representing
in excess of five percent (5%) of the aggregate principal amount of the
Company's Funded Debt, such declaration of acceleration under the Indenture
shall be automatically annulled if (a) as a result of the contest by the Company
in appropriate proceedings of the acceleration of such Debt such acceleration is
declared void ab initio, or (b) within 90 days of the declaration of
acceleration under the Indenture the declaration of acceleration of such Debt
has been rescinded or annulled in any manner authorized by the mortgage,
indenture or instrument evidencing or creating such Debt and, in the case of
this clause (b), the annulment of the declaration of acceleration under the
Indenture would not conflict with any judgment or decree, and, in either case,
all other existing Events of Default (other than the non-payment of the
principal of and accrued interest, if any, on Securities of any series that have
become due solely by such acceleration) with respect to the Notes have been
cured or waived. Noteholders may not enforce the Indenture or the Notes except
as provided in the Indenture. The Trustee may require indemnity satisfactory to
it before it enforces the Indenture or the Notes. Subject to certain
limitations, holders of a majority in principal amount of the outstanding Notes
of this series may direct the Trustee in its exercise of any trust or power.
The Trustee may withhold from Noteholders notice of any continuing default
(except a default in payment of principal, premium, if any, or interest) if it
determines that withholding notice is in their interests. The Company is
required to file periodic reports with the Trustee as to the absence of default.
13. Trustee Dealings with Company.
Shawmut Bank Connecticut, National Association, the Trustee under the
Indenture, in its individual or any other capacity, may make loans to, accept
deposits from, and perform services for the Company or its Affiliates, and may
otherwise deal with the Company or its Affiliates, as if it were not Trustee.
14. No Recourse Against Others.
A director, officer, employee, or stockholder, as such, of the Company or
the Trustee shall not have any liability for any obligations of the Company or
the Trustee under the Notes or the Indenture or for any claim based on, in
respect of, or by reason of such obligations or their creation. Each Noteholder
by accepting a Note waives and releases all such liability. The waiver and
release are part of the consideration for the issue of the Note.
15. Authentication.
This Note shall not be valid until the Trustee signs the certificate of
authentication on the other side of this Note.
16. Abbreviations.
Customary abbreviations may be used in the name of a holder of a Note or an
assignee, such as: TENCOM (=tenants in common), TENENT (=tenants by the
entireties), JTTEN (=joint tenants with right of survivorship and not as tenants
in common), CUST (=custodian) and U/G/M/A (=Uniform Gifts to Minors Act).
Additional abbreviations may be used though not in the above list.
The Company will furnish to any holder of a Note upon written request and
without charge a copy of the Indenture. Requests may be made to: Donne F.
Fisher, Executive Vice President, TCI Communications, Inc., 5619 DTC Parkway,
Englewood, Colorado 80111-3000.
ASSIGNMENT FORM
If you the holder want to assign this Note, fill in the form below and have your
signature guaranteed:
For value received, I or we assign and transfer this Note to
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Insert assignee's social security or tax ID number)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type assignee's name, address, and zip code)
and irrevocably appoint
--------------------------------------------------------------------------------
agent to transfer this Note on the books of the Company. The agent may
substitute another to act for him.
--------------------------------------------------------------------------------
Dated: Your signature:
----------------- -------------------------------------
(Sign exactly as your name appears on
the other side of this Note)
Signature Guarantee:
--------------------------------
<PAGE> 1
EXHIBIT 4.2
[SECURITIES CERTIFICATE]
REGISTERED REGISTERED
NUMBER
-------------- -----------------
R TCI COMMUNICATIONS, INC.
-------------- -----------------
8 3/4% SENIOR DEBENTURE DUE AUGUST 1, 2015
CUSIP 872287 AC 3
TCI COMMUNICATIONS, INC., a Delaware corporation,
promises to pay to
or registered assigns
the principal sum of DOLLARS on August 1, 2015
INTEREST Payment Dates: February 1 and August 1, commencing February 1, 1996.
Record Dates: January 15 and July 15.
DATED: TCI COMMUNICATIONS, INC.
CERTIFICATE OF AUTHENTICATION: BY Bob Magness
------------------------
The undersigned certifies that this is one of the CHAIRMAN OF THE BOARD
Securities of the series designated herein
referred to in the within-mentioned Indenture.
Stephen M. Brett
SHAWMUT BANK CONNECTICUT, NATIONAL ASSOCIATION, ------------------------
as Trustee SECRETARY
[TCI COMMUNICATIONS, INC. CORPORATE SEAL]
BY
AUTHORIZED OFFICER
<PAGE> 2
TCI COMMUNICATIONS, INC.
8 3/4% SENIOR DEBENTURE DUE AUGUST 1, 2015
1. Interest.
TCI Communications, Inc. (the "Company"), a Delaware corporation,
promises to pay interest on the principal amount of this Debenture (as defined
below) at the rate per annum shown above. The Company will pay interest
semiannually on February 1 and August 1 of each year, commencing February 1,
1996. Interest on this Debenture will accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from August 1, 1995.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months.
2. Method of Payment.
The Company will pay interest on this Debenture (except defaulted
interest) to the persons who are registered holders of this Debenture at the
close of business on the fifteenth day of the month preceding the interest
payment date. Holders must surrender Debentures to a Paying Agent to collect
premium, if any, and principal payments. The Company will pay principal,
premium, if any, and interest in money of the United States that at the time of
payment is legal tender for payment of public and private debts. The Company
may, however, pay principal, premium, if any, and interest by its check payable
in such money. It may mail an interest check to a holder's registered address.
3. Paying Agent and Registrar.
Initially, Shawmut Bank Connecticut, National Association ("Trustee")
will act as Paying Agent and Registrar and Shawmut Trust Company, at 14 Wall
Street, 8th Floor, New York, New York, will act as an additional paying agent
and co-Registrar. The Company may change any Paying Agent, Registrar or
co-Registrar without notice. The Company or any of its Subsidiaries may act as
Paying Agent, Registrar or co-Registrar.
4. Indenture.
This Debenture is one of a duly authorized issue of Securities of the
Company (the "Debentures"), issued and to be issued in one or more series under
an Indenture dated as of July 26, 1993, as amended and supplemented by a First
Supplemental Indenture, dated as of September 13, 1994 (the "Indenture")
between the Company and the Trustee. The terms of the Debentures include those
stated in the Indenture and those made part of the Indenture by the Trust
Indenture Act of 1939, as amended (15 U.S. Code Sections 77aaa-77bbbb) (the
"Act"). The Debentures are subject to all such terms, and Debentureholders are
referred to the Indenture and the Act for a statement of them. All terms used
in this Debenture which are defined in the Indenture shall have the meanings
assigned to them in the Indenture. This Debenture is one of the series
designated on the face hereof. The Debentures of this series are general
unsecured obligations of the Company limited to $750,000,000 in aggregate
principal amount.
5. No Redemption.
The Debentures may not be redeemed by the Company prior to maturity,
and are not entitled to the benefits of a sinking fund.
6. Change of Control.
In the event that a Change of Control occurs on or before August 1,
2015, and, during the period commencing 90 days prior to public disclosure of
the occurrence of such Change of Control and ending 90 days after such public
disclosure, the rating of the Debentures is downgraded to lower than BBB- by
Duff & Phelps Credit Rating Co. ("D&P") or lower than Baa3 by Moody's Investors
Service, Inc. ("Moody's"), and, in the event that such downgrading occurs
prior to such public disclosure, the rating assigned to the Debentures by D&P
or Moody's as of the close of business on the date of such public disclosure
remains lower than BBB- or lower than Baa3, respectively, the holder of this
Debenture will have the right to put all or part of this Debenture to the
Company for purchase at a purchase price of 100% of the principal amount
hereof, plus interest accrued and unpaid to the date fixed for purchase, upon
the terms and conditions specified in the Indenture.
7. Denominations, Transfer, Exchange.
The Debentures are in registered form without coupons in denominations
of $1,000 and integral multiples of $1,000. A holder may transfer or exchange
Debentures in accordance with the Indenture. The Registrar may require a
holder, among other things, to furnish appropriate endorsements and transfer
documents and to pay any taxes and fees required by law or permitted by the
Indenture.
8. Persons Deemed Owners.
The registered holder of a Debenture may be treated as the owner of it
for all purposes.
9. Unclaimed Money.
If money for the payment of principal, premium, if any, or interest
remains unclaimed for two years, the Trustee or Paying Agent will pay the money
back to the Company at its request. After that, holders entitled to the money
must look to the Company for payment unless an abandoned property law
designates another person.
10. Amendment, Supplement, Waiver.
Subject to certain exceptions, the indenture or the Securities of any
series may be amended or supplemented, and any past default or compliance with
any provision may be waived insofar as the Securities of any series are
concerned, with the consent of the holders of a majority in principal amount of
the outstanding Securities of such series. Without the consent of any
Securityholder, the Company and the Trustee may amend or supplement the
Indenture or the Securities of any series to cure any ambiguity, defect, or
inconsistency or to provide for uncertificated Securities in addition to
certificated Securities or to make certain other specified changes or any
change that does not materially adversely affect the rights of any
Securityholder.
11. Successor Corporation.
When a successor corporation assumes all the obligations of its
predecessor under the Debentures and the Indenture, the predecessor corporation
will be released from those obligations.
12. Defaults and Remedies.
An Event of Default is: default for 30 days in payment of any interest
on any Debenture; default in payment of principal or premium, if any, on any
Debenture; failure by the Company, for 30 days after receipt of notice from the
Trustee or the holders of at least 25% in principal amount of the outstanding
Debentures, to comply with any of its other agreements in the Indenture (other
than an agreement which has expressly been included in the Indenture solely for
the benefit of Securities of any series other than this series) or the
Debentures; acceleration of Debt of the Company (including Securities of any
other series) representing in excess of five percent (5%) of the aggregate
principal amount of the Company's Funded Debt then outstanding unless, within
30 days after receipt of notice by the Company from the Trustee or the holders
of at least 25% in principal amount of the outstanding Debentures, such
acceleration has been rescinded or annulled, such Debt has been paid or the
Company shall have contested such acceleration in good faith and by appropriate
proceedings and have obtained and thereafter maintained a stay of all
consequences thereof that would have a material adverse effect on the Company;
and certain events of bankruptcy or insolvency. If an Event of Default with
respect to the Debentures shall occur and be continuing, the principal of, and
the premium, if any, and accrued interest on, the Debentures may be declared or
may become due and payable in the manner and with the effect provided in the
Indenture. In the event of a declaration of acceleration under the Indenture
with respect to the Debentures because an Event of Default has occurred due to
the acceleration of Debt of the Company representing in excess of five percent
(5%) of the aggregate principal amount of the Company's Funded Debt, such
declaration of acceleration under the Indenture shall be automatically annulled
if (a) as a result of the contest by the Company in appropriate proceedings of
the acceleration of such Debt such acceleration is declared void ab mitio, or
(b) within 90 days of the declaration of acceleration under the Indenture the
declaration of acceleration of such Debt has been rescinded or annulled in any
manner authorized by the mortgage, indenture or instrument evidencing or
creating such Debt and, in the case of this clause (b), the annulment of the
declaration of acceleration under the Indenture would not conflict with any
judgment or decree, and, in either case, all other existing Events of Default
(other than the non-payment of the principal of and accrued interest, if any,
on Securities of any series that have become due solely by such acceleration)
with respect to the Debentures have been cured or waived. Debentureholders may
not enforce the Indenture or the Debentures except as provided in the
Indenture. The Trustee may require indemnity satisfactory to it before it
enforces the Indenture or the Debentures. Subject to certain limitations,
holders of a majority in principal amount of the outstanding Debentures of this
series may direct the Trustee in its exercise of any trust or power. The
Trustee may withhold from Debentureholders notice of any continuing default
(except a default in payment of principal, premium, if any, or interest) if it
determines that withholding notice is in their interests. The Company is
required to file periodic reports with the Trustee as to the absence of
default.
13. Trustee Dealings with Company.
Shawmut Bank Connecticut, National Association, the Trustee under the
Indenture, in its individual or any other capacity, may make loans to, accept
deposits from, and perform services for the Company or its Affiliates, and any
otherwise deal with the Company or its Affiliates, as if it were not Trustee.
14. No Recourse Against Others.
A director, officer, employee, or stockholder, as such, of the Company
or the Trustee shall not have any liability for any obligations of the Company
or the Trustee under the Debentures or the Indenture or for any claim based on,
in respect of, or by reason of such obligations or their creation. Each
Debentureholder by accepting a Debenture waives and releases all such
liability. The waiver and release are part of the consideration for the issue
of the Debenture.
15. Authentication.
This Debenture shall not be valid until the Trustee signs the
certificate of authentication on the other side of this Debenture.
16. ABBREVIATIONS.
Customary abbreviations may be used in the name of a holder of a
Debenture or an assignee, such as : TEN COM (=tenants in common), TENENT
(=tenants by the entireties), JTTEN (=joint tenants with right of survivorship
and not as tenants in common), CUST (=custodian) and U/G/M/A (=Uniform Gifts to
Minors Act). Additional abbreviations may be used though not in the above
list.
The Company will furnish to any holder of a Debenture upon written
request and without charge a copy of the Indenture. Requests may be made to:
Donne F. Fisher, Executive Vice President, TCI Communications, Inc., 5619 DTC
Parkway, Englewood, Colorado 80111-3000.
ASSIGNMENT FORM
If you the holder want to assign this Debenture, fill in the form below and
have your signature guaranteed:
For value received, I or we assign and transfer this Debenture to
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Insert assignee's social security or tax ID number)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type assignee's name, address, and zip code)
and irrevocably appoint
--------------------------------------------------------------------------------
agent to transfer this Debenture on the books of the Company. The agent may
substitute another to act for him.
--------------------------------------------------------------------------------
Dated: Your signature:
----------------- --------------------------------------
(Sign exactly as your name appears on
the other side of this Debenture)
Signature Guarantee:
---------------------------------
<PAGE> 1
BAKER & BOTTS [LETTERHEAD]
EXHIBIT 5.1
July 31, 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 July 26,
1993, as amended and supplemented by a First Supplemental Indenture, dated as of
September 13, 1994 (as so amended and supplemented, the "Indenture"), between
the Company and Shawmut Bank Connecticut, National Association, as Trustee (the
"Trustee").
On July 27, 1995, the Company entered into an underwriting agreement
(the "Underwriting Agreement") with Merrill Lynch & Co., Merrill Lynch, Pierce,
Fenner & Smith Incorporated, Bear, Stearns & Co, Lehman Brothers Inc., Morgan
Stanley & Co. Incorporated and Salomon Brothers Inc acting on behalf of the
several underwriters named in Exhibit B thereto (collectively, the
"Underwriters") pursuant to which the Company agreed to sell to the
Underwriters, subject to the conditions stated in the Underwriting Agreement,
$350,000,000 aggregate principal amount of a series of the Company's Senior Debt
Securities designated as its "8% Senior Notes due August 1, 2005" (the "Notes")
and $750,000,000 aggregate principal amount of a series of the Company's Senior
Debt Securities designated as its "8 3/4% Senior Debentures due August 1, 2015"
(the "Debentures, and together with the Notes, the "Securities"). 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 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
<PAGE> 2
BAKER & BOTTS [LETTERHEAD]
TCI Communications, Inc.
July 31, 1995
Page 2
as we deemed necessary or appropriate for the purpose of this opinion. In
rendering this opinion, we have assumed the authenticity of all documents
submitted to us as originals and the conformity to authentic original documents
of all documents submitted to us as certified, conformed or reproduction copies.
We have further assumed that the Indenture and the Underwriting Agreement have
been duly and validly authorized, executed and delivered by, and constitute the
valid and binding obligations of, the parties thereto other than the Company.
Based upon the foregoing, we are of the opinion that:
The 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 Underwriters pursuant
to the terms of the Underwriting Agreement, they will be legally issued, valid
and binding obligations of the Company entitled to the benefits of the Indenture
and enforceable in accordance with their terms, except (A) as such
enforceability may be limited by bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium and other laws affecting the rights of
creditors generally, and (B) that equitable remedies may not be available.
We hereby consent to the reference to us under the heading "Validity of
the Securities" in the Prospectus Supplement dated July 27, 1995 to the
Prospectus dated July 27, 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.
