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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15 of the
Securities Exchange Act of 1934
Date of Report: September 11, 1996
Date of Earliest Event Reported: September 6, 1996
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.
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Pursuant to a Registration Statement on Form S-3 (File No. 33-63139)
(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 November 13, 1995, the Registrant has
registered its senior, senior subordinated and subordinated debt securities (the
"Debt Securities"), and Tele-Communications, Inc., a Delaware corporation
("Parent"), has registered (i) such indeterminate number of shares of its Series
A TCI Group Common Stock, $1.00 par value per share, as may be issued from time
to time upon conversion of any of the Debt Securities that are issued as
convertible Debt Securities and (ii) certain guarantees of Debt Securities, 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 6, 1996, 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 $350,000,000 principal amount of
the Registrant's Remarketed Floating Rate Reset Notes due September 15, 2003
(the "Securities"), which are a series of senior Debt Securities. On September
11, 1996, the transactions contemplated by the Underwriting Agreement were
consummated. The net proceeds to the Registrant from the sale of the Securities
were $347,812,500, before deducting expenses (other than the underwriting
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discount) of the Registrant. The Underwriting Agreement is filed as Exhibit 1.1
hereto. The Registrant has estimated that expenses of $100,000 (in addition to
the underwriting discount) will be payable by it in connection with the sale of
the Securities.
On September 6, 1996, 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 December
20, 1995, in the form filed as Exhibit 4.10 to the Company's Current Report on
Form 8-K, dated December 21, 1995 (the "Indenture"). The description of certain
provisions of the Indenture, the senior Debt Securities that may be offered
thereunder and the Securities and information concerning the terms of the
purchase and offering of the Securities 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 6,
1996 (the "Prospectus"), and (ii) to the sections entitled "Certain Terms of the
Notes" and "Underwriting" in the Prospectus Supplement thereto, dated September
6, 1996 (the "Prospectus Supplement"), each of which has been filed with the
Commission pursuant to Rule 424(b) under the Act. The form of the Securities is
filed as Exhibit 4.1 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 October 2, 1995, 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 11, 1996, 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 "B&B Consent") to the reference to its name in the
Prospectus Supplement under the caption "Validity of the Notes."
The Prospectus incorporates by reference reports of the Registrant and
Parent that include audited financial statements and the related audit reports
of certain accounting firms, and the names of such accounting firms referred to
under the caption "Experts" in the Prospectus. The consents of such accounting
firms to the incorporation by reference in the Prospectus of their respective
audit reports and to the reference to their respective names under the heading
"Experts" in the Prospectus (the "Accounting Consents") are filed as Exhibits
23.2 through 23.9, inclusive, hereto.
The Registrant is filing this Current Report on Form 8-K in order to cause
the Underwriting Agreement, the Remarketing Agreement, the form of Securities,
the Opinion, the B&B Consent and the Accounting Consents 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 form of Securities, the Opinion, the
B&B Consent, the Accounting Consents 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.
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Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
Exhibits
--------
1.1 Underwriting Agreement, dated September 6, 1996, between the
Underwriter and the Registrant.
1.2 Remarketing Agreement, dated September 6, 1996, between the
Underwriter and the Registrant.
4.1 Form of Remarketed Floating Rate Reset Notes due September 15,
2003.
5.1 Opinion, dated September 11, 1996, of Baker & Botts, L.L.P.,
counsel to the Registrant, as to legality of the Securities.
23.1 Consent of Baker & Botts, L.L.P. (included in Exhibit 5.1).
23.2 Consent of KPMG Peat Marwick LLP.
23.3 Consent of KPMG Peat Marwick LLP.
23.4 Consent of KPMG Peat Marwick LLP.
23.5 Consent of KPMG Peat Marwick LLP.
23.6 Consent of KPMG Peat Marwick LLP.
23.7 Consent of KPMG.
23.8 Consent of KPMG Finsterbusch Pickenhayn Sibille.
23.9 Consent of Price Waterhouse LLP.
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SIGNATURES
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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 11, 1996
TCI COMMUNICATIONS, INC.
(Registrant)
By: /s/ Stephen M. Brett
--------------------------------
Name: Stephen M. Brett
Title: Senior Vice President
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EXHIBIT INDEX
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Exhibits
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1.1 Underwriting Agreement, dated September 6, 1996, between the
Underwriter and the Registrant.
1.2 Remarketing Agreement, dated September 6, 1996, between the
Underwriter and the Registrant.
4.1 Form of Remarketed Floating Rate Reset Notes due September 15,
2003.
5.1 Opinion, dated September 11, 1996, of Baker & Botts, L.L.P.,
counsel to the Registrant, as to legality of the Securities.
23.1 Consent of Baker & Botts, L.L.P. (included in Exhibit 5.1).
23.2 Consent of KPMG Peat Marwick LLP.
23.3 Consent of KPMG Peat Marwick LLP.
23.4 Consent of KPMG Peat Marwick LLP.
23.5 Consent of KPMG Peat Marwick LLP.
23.6 Consent of KPMG Peat Marwick LLP.
23.7 Consent of KPMG.
23.8 Consent of KPMG Finsterbusch Pickenhayn Sibille.
23.9 Consent of Price Waterhouse LLP.
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Exhibit 1.1
UNDERWRITING AGREEMENT
September 6, 1996
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
Merrill Lynch World Headquarters
North Tower
World Financial Center
New York, New York 10281-1305
Ladies and Gentlemen:
TCI Communications, Inc. (the "Company") proposes to issue and sell
$350,000,000 principal amount of its Remarketed Floating Rate Reset Notes due
September 15, 2003 (the "Offered Debt Securities") pursuant to an indenture
dated as of December 20, 1995 (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 "Underwriter" as used
herein will mean and refer to you.
1. Registration Statement and Prospectus: The Company and Tele-
Communications Inc. ("TCI") 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. 33-63139), including a prospectus, relating to the offer
from time to time (a) by the Company of debentures, notes, bonds or other
evidences of indebtedness of the Company (the "Debt Securities") issuable in
one or more series, including the Offered Debt Securities, and (b) by TCI of
(i) such indeterminate number of shares of Series A TCI Group Common Stock of
TCI as may be issued from time to time upon conversion of Debt Securities so
registered that are convertible into Series A TCI Group Common Stock of TCI
and (ii) Guarantees by TCI which may be issued in respect of Debt Securities
so registered that are convertible into Series A TCI Group Common Stock of
TCI, which has become effective under the Act, and the Company 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 incor-
porated 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 6, 1996 to be
filed with the Commission pursuant to Rule 424 under the Act. The term "Pros-
pectus" 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 prospec-
tus" 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
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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
Underwriter, 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 Underwriter agrees to purchase from the
Company, the principal amount of Offered Debt Securities set forth opposite the
Underwriter's name in Exhibit B, at a purchase price of 99.375% of the principal
amount of the Offered Debt Securities plus accrued interest, if any, from
September 11, 1996. The obligations of the Underwriter to purchase Offered Debt
Securities pursuant to this Agreement are hereinafter called its "underwriting
obligations".
With respect to any of the Offered Debt Securities purchased by the
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 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, the 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).
In the event that prior to maturity on September 15, 2003 the Offered Debt
Securities are (i) redeemed by the Company pursuant to the terms thereof or (ii)
repurchased by the Company as a result of a "change in control" as defined in
the Indenture, the Underwriter shall pay to the Company an amount equal to the
following percentages of the aggregate principal amounts of the Offered Debt
Securities so redeemed or repurchased, based upon the number of full twelve-
month periods from the date of such redemption or repurchase to maturity.
Years to Maturity Refund
6 .475%
5 .275%
4 .175%
3 .075%
2 .025%
1 .0125%
3. Delivery and Payment: Delivery of and payment for the Offered Debt
Securities shall be made at 9:00 a.m., New York time, on September 11, 1996
(such time and date are referred to herein as the "Closing Date"), at the office
of Baker & Botts, L.L.P., 599 Lexington Avenue, New York, New York, 10022. The
Closing Date and the place of delivery of and payment for the Offered Debt
Securities may be varied by agreement between the Underwriter and the Company.
Delivery of the Offered Debt Securities (in definitive form and registered
in such names and in such authorized denominations as the Underwriter shall
request at least two business days prior to the Closing Date by written notice
to the Company) shall be made to the Underwriter for the Underwriter's account
against payment by the Underwriter of the purchase price therefor by wire
transfer in same day funds. For the purpose of expediting the checking and
packaging of the Offered Debt Securities, the
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Company agrees to make the Offered Debt Securities available to the Underwriter
for inspection at least 24 hours prior to the Closing Date or such shorter
period of time as the Underwriter may agree to.
4. Agreements of the Company: The Company agrees with the Underwriter as
follows:
(a) The Company will notify the Underwriter promptly, and (if
requested by the Underwriter in writing) will confirm such notice 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 existing 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 the Underwriter, 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 the Underwriter) and will deliver to the Underwriter the
number of conformed copies of the Registration Statement and any post-
effective amendment thereto, excluding exhibits, as the Underwriter may
request.
(c) The Company will give the Underwriter 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 the Underwriter 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 the Underwriter, without
charge, as many copies of the Prospectus or any amendment or supplement
thereto as the Underwriter may reasonably request. The Company consents to
the use of the Prospectus or any amendment or supplement thereto by the
Underwriter 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
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incorporated by reference) in the Prospectus in order to make the
statements therein, in light of the circumstances existing 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 the Underwriter, without charge, such number of copies thereof as the
Underwriter may reasonably request. If during such period of time any
event shall occur which in the Underwriter's judgment should be so set
forth (or incorporated by reference) in the Prospectus, or which in the
Underwriter's judgment makes it necessary to so supplement or amend the
Prospectus, the Company will consult with the Underwriter 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 Underwriter, the Company will cooperate with the Underwriter and
counsel retained by the Underwriter 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 the Underwriter requests; 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 the Underwriter may designate.
(f) The Company will make generally available to its security holders
and to the Underwriter 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 amend-
ments 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 the Underwriter because any
condition to the obligations of the Underwriter 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
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the Underwriter for all out-of-pocket expenses (including the fees and
expenses of counsel retained by the Underwriter) reasonably incurred by the
Underwriter in connection herewith. The Company will not in any event be
liable to the Underwriter 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 the
Underwriter's prior written consent.
5. Representations and Warranties of the Company: The Company represents
and warrants to the Underwriter that:
(a) the documents incorporated by reference in the Registration
Statement and the Prospectus, when they were filed (or, if an amendment
with respect to any such document was filed, when such amendment was filed)
with the Commission, conformed in all material respects to the requirements
of the Exchange Act and the rules and regulations of the Commission
promulgated thereunder, and any further documents so filed and incorporated
by reference will, when they are filed with the Commission, conform in all
material respects to the requirements of the Exchange Act and the rules and
regulations of the Commission promulgated thereunder, none of such
documents, when it was filed (or, if an amendment with respect to any such
document was filed, when such amendment was filed), contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading; and no
such further document, when it is filed, will contain an untrue statement
of a material fact or will omit to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they are made, not misleading;
(b) the Registration Statement, when declared effective by the
Commission, complied in all material respects with the requirements of the
Act; each preliminary prospectus, if any, relating to the Offered Debt
Securities, filed pursuant to Rule 424 under the Act, will comply when so
filed in all material respects with the Act; and when the Prospectus is
first filed with the Commission pursuant to Rule 424 and as of the Closing
Date, the Registration Statement and the Prospectus (as amended or
supplemented, if applicable) will comply in all material respects with the
requirements of the Act and the Indenture will comply in all material
respects with the requirements of the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"). When it was declared effective by the
Commission, the Registration Statement did not, and as of the date the
Prospectus is first filed with the Commission pursuant to Rule 424 and as
of the Closing Date the Registration Statement (as amended or supplemented,
if applicable) will not, contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading. When the Prospectus is first
filed with the Commission pursuant to Rule 424 and as of the Closing Date,
the Prospectus (as amended or supplemented, if applicable) will not contain
an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading.
Notwithstanding the foregoing, this representation and warranty does not
apply to statements or omissions in the Registration Statement or the
Prospectus or any preliminary prospectus made in reliance upon information
furnished to the Company in writing by the Underwriter expressly for
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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(w) 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 the 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 the
Underwriter, and each person, if any, who controls the 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 the Underwriter 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 the 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 the Underwriter to
such person at or prior
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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 the Underwriter or any person who
controls the Underwriter, after such time as the Company advised the Underwriter
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 the Underwriter or any person controlling
the Underwriter in respect of which indemnity may be sought from the Company,
the 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 the Underwriter and the payment
of all expenses. Any omission so to notify the Company shall not, however,
relieve the Company from any liability which it may have to any indemnified
party otherwise than under this Section 6. The Underwriter or any person
controlling the 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 the 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 the Underwriter in any such action or proceeding or (c) the named parties to
any such action or proceeding (including any impleaded parties) include both the
Underwriter or such controlling person and the Company, and the Underwriter or
such controlling person shall have been advised by the Underwriter's counsel
that there may be a conflict of interest between the Underwriter or such
controlling person and the Company in the conduct of the defense of such action
(in which case, if the 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 the 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 the Underwriter. The Company shall not be liable for any settlement
of any such action or proceeding effected without its written consent, but if
settled with its written consent, or if there be a final judgment for the
plaintiff in any such action or proceeding, the Company agrees to indemnify and
hold harmless the Underwriter and any such controlling person from and against
any loss or liability by reason of such settlement or judgment.
The Underwriter 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
the Underwriter, but only with respect to information furnished in writing by
the Underwriter expressly for use in the Registration Statement, the Prospectus,
or any amendment or
7
<PAGE>
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
the Underwriter, the Underwriter shall have the rights and duties given to the
Company, and the Company or its directors or officers or such controlling person
shall have the rights and duties given to the Underwriter, by the preceding
paragraph.
If the indemnification provided for in this Section 6 is unavailable to an
indemnified party under the first or third paragraph hereof in respect of any
losses, claims, damages or liabilities referred to therein (other than by reason
of such indemnified party's failure to comply with the first sentence of the
second paragraph of this Section 6), then each applicable indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the amount paid
or payable by such indemnified party as a result of such losses, claims, damages
or liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriter 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 Underwriter 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 Underwriter 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 Underwriter in respect thereof.
The relative fault of the Company on the one hand and of the Underwriter 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 Underwriter 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 Underwriter agree that it would not be just and
equitable if contribution pursuant to this Section 6 were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 6, the Underwriter 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 Underwriter has 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 the Underwriter, by or on behalf of any
person controlling the 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.
8
<PAGE>
7. Conditions of the Obligations the Underwriter: The obligations of the
Underwriter 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 Underwriter 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 Underwriter shall have received opinions, dated the Closing
Date and reasonably satisfactory to counsel retained by the Underwriter,
(A) from Cole, Raywid & Braverman, L.L.P. or such other special
communications counsel for the Company as may be reasonably satisfactory to
the Underwriter, (B) from the General Counsel of the Company to the
following effect and covering such additional matters as the Underwriter
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;
9
<PAGE>
(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 Sherman & Howard L.L.C. 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 Sherman & Howard L.L.C., special counsel to the Company, to
the following effect and covering such additional matters as the
Underwriter 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
Underwriter, to the following effect and covering such additional matters
as the Underwriter 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
10
<PAGE>
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 Underwriter 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. 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 to the date hereof, 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
11
<PAGE>
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 Sherman &
Howard L.L.C. 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 Underwriter and counsel retained by the
Underwriter;
(c) the Underwriter shall have received on the Closing Date from
Brown & Wood LLP, counsel retained by the Underwriter, 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 Underwriter shall have received on the Closing Date from
Brown & Wood LLP, or from other counsel acceptable to the Underwriter, 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 Underwriter shall have received a letter
addressed to the Underwriter from KPMG Peat Marwick LLP, independent
auditors for the Company, reasonably satisfactory to the Underwriter;
(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 Underwriter, 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 Underwriter to
purchase the Offered Debt Securities may be terminated at any time prior to the
Closing Date by notice to the Company from the Underwriter, without liability on
the part of the Underwriter 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
12
<PAGE>
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. Miscellaneous: Notice given pursuant to any of the provisions of this
Agreement shall be in writing and shall be mailed or delivered (a) to the
Company at its office, Terrace Tower II, 5619 DTC Parkway, Englewood, Colorado
80111-3000, attention: Bernard W. Schotters, Senior Executive Vice President-
Finance, or (b) to the Underwriter at Merrill Lynch, Pierce, Fenner & Smith
Incorporated, North Tower, World Financial Center, New York, New York 10281-
1305, attention: Debt Syndicate. Any notice given pursuant to the provisions
of this Agreement may be made by telex or telephone, but if so made shall be
subsequently confirmed in writing.
13
<PAGE>
This Agreement has been and is made solely for the benefit of the
Underwriter 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 the Underwriter.
This Agreement shall be governed by and construed in accordance with the
internal laws of the State of New York.
Please confirm that the foregoing correctly sets forth the agreement
between the Company and the Underwriter.
Very truly yours,
TCI COMMUNICATIONS, INC.
By: /s/ Bernard W. Schotters
........................................
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/ Gregg Seibert
......................................
Title: Managing Director
<PAGE>
EXHIBIT A
OFFERED DEBT SECURITIES
Designation: Remarketed Floating Rate Reset Notes due September 15, 2003
Dated Date: September 11, 1996
Maturity: September 15, 2003, unless earlier redeemed
Call Schedule: After failure to agree on Spread or after failure of
Remarketing Underwriter to purchase Notes.
Authorized Denominations: $1,000 principal amount and any integral
multiples of $1,000 in excess thereof
Interest rate: LIBOR (as defined) plus .65% until September 15, 1997.
Coupon Structure: Quarterly reset/ Quarterly pay
Interest Payment Dates: December 15, March 15, June 15 and September 15 of
each year (or, if not a Business Day, on the next succeeding
Business Day), commencing December 16, 1996.
Record Dates: December 1, March 1, June 1 and September 1
Alternate Spread: LIBOR plus LIBOR
Sinking Fund: None
Day Basis Actual / 360
Optional Redemption: September 15, 1997 and each September 15 immediately
following the end of a Subsequent Spread Period
<PAGE>
EXHIBIT B
Principal Amount
Underwriter of Offered Debt Securities
----------- --------------------------
Merrill Lynch, Pierce, Fenner & Smith
Incorporated $350,000,000
B-1
<PAGE>
Exhibit 1.2
REMARKETING AGREEMENT
REMARKETING AGREEMENT, dated as of September 6, 1996 (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 $350,000,000 aggregate principal amount of
Remarketed Floating Rate Reset Notes due September 15, 2003 (the "Notes"), such
Notes to be issued under the Indenture, dated as of December 20, 1995 (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.
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 or, if not
therein stated, the Indenture.
<PAGE>
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 determine LIBOR and
the interest rate of the Notes for any Quarterly Period and (ii) as the
exclusive remarketing underwriter (the "Remarketing Underwriter") for the
purpose of (x) recommending to the Company the Spread for each Subsequent Spread
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 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"), 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) The Rate Agent hereby agrees to determine LIBOR on each LIBOR
Determination Date in accordance with the following provisions and the other
relevant provisions of the Notes:
(i) LIBOR shall be determined on the basis of the offered rates
for three-month deposits in U.S. Dollars of not less than U.S. $1,000,000,
commencing on the second London Business Day immediately following the
applicable LIBOR Determination Date, which appears on the Telerate Page
3750 as of approximately 11:00 a.m., London time, on the applicable LIBOR
Determination Date. If no rate appears on
2
<PAGE>
the Telerate Page 3750, LIBOR for the applicable LIBOR Determination Date
will be determined in accordance with the provisions of paragraph (ii)
below.
(ii) With respect to a LIBOR Determination Date on which no rate
appears on Telerate Page 3750 as of approximately 11:00 a.m., London time,
on the applicable LIBOR Determination Date, the Rate Agent shall select
four major reference banks in the London interbank market and shall request
the principal London offices of each of such banks to provide it with a
quotation of the rate at which three-month deposits in U.S. Dollars,
commencing on the second London Business Day immediately following the
applicable LIBOR Determination Date, are offered by it to prime banks in
the London interbank market as of approximately 11:00 a.m., London time, on
the applicable LIBOR Determination Date and in a principal amount equal to
an amount of not less than U.S. $1,000,000 that is representative for a
single transaction in such market at such time. If at least two such
quotations are provided, LIBOR for the applicable LIBOR Determination Date
will be the arithmetic mean of such quotations as calculated by the Rate
Agent. If fewer than two quotations are provided, the Rate Agent, after
consultation with the Company, shall select three major banks in The City
of New York and shall request each of such banks to provide it with the
rates quoted by such bank as of approximately 11:00 a.m., New York City
time, on the applicable LIBOR Determination Date for loans in U.S. Dollars
to leading European banks, having a three-month maturity, commencing on the
second London Business Day immediately following the applicable LIBOR
Determination Date and in a principal amount equal to an amount of not less
than U.S. $1,000,000 that is representative for a single transaction in
such
3
<PAGE>
market at such time, and LIBOR for the applicable LIBOR Determination Date
shall be the arithmetic mean of such rates; provided, however, that if the
banks selected as aforesaid by the Rate Agent are not quoting as mentioned
in this sentence, LIBOR for the applicable LIBOR Determination Date will be
the LIBOR determined with respect to the immediately preceding LIBOR
Determination Date, or in the case of the first LIBOR Determination Date,
LIBOR for the Initial Quarterly Period.
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 Remarketing Underwriter. With respect to any
--------------------------------------
Subsequent Spread 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 Spread
Determination 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 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
4
<PAGE>
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 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.
5
<PAGE>
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.
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.
6
<PAGE>
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 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.
7
<PAGE>
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.
IN WITNESS WHEREOF, each of the Company and the Remarketing Underwriter 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/ Bernard W. Schotters
----------------------------------
Name: Bernard W. Schotters
Title: Senior Vice President and Treasurer
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By /s/ Gregg Seibert
-----------------------------------
Name: Gregg Seibert
Title: Managing Director
<PAGE>
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 1933, 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 "Underwriter" 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 "Closing Date"
shall be deemed to refer to the Tender Date. To the extent such provisions
refer to the "Prospectus" or the "Registration Statement," such references shall
be deemed to refer to any Remarketing Memorandum or registration statement, if
any, that the Company is required to prepare or file pursuant to applicable law,
regulations or interpretations of the Securities and Exchange Commission in
effect at the time of such remarketing of the Notes. For purposes of the fourth
paragraph of Article 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.
<PAGE>
Remarketing Underwriter and address: Merrill Lynch & Co.
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 Floating Rate Reset Notes
Due September 15, 2003
Principal Amount of Notes to be The aggregate principal amount of all
purchased: Notes tendered for resale on the
Tender Date.
Title of Indenture: Indenture, dated as of December 20,
1995, 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, 2003
Spread Determination Date: _____ __, ____
Tender Notice Date: _____ __, ____
Interest Reset Dates: _____ __, ____
Tender Date: _____ __, ____
New Interest Rate: As determined by application of the
provisions set forth in the attached
form of the Notes on the LIBOR
Determination Date.
Spread: [Plus/Minus] ______ basis points.
Interest Payment Dates: December 15, March 15, June 15 and
September 15
2
<PAGE>
Subsequent Spread Period: September 15, ____ to September 15,
____
Redemption Provisions: Redeemable as set forth in the
attached Prospectus Supplement dated
September 6, 1996; [describe
additional redemption provisions, if
any]
Beneficial Owner Tender Provisions: As set forth in the attached
Prospectus Supplement dated September
6, 1996. 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.
Shorter Subsequent Spread Period: In the event that (A) the Remarketing
Underwriter fails to purchase all
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
Subsequent Spread Period shall be a
period of one year, which Subsequent
Spread Period shall be deemed to have
commenced upon the Commencement Date
that coincides with the Tender Date.
Indemnity for Excess Interest and In the event that (A) the Remarketing
Redemption Expenses: Underwriter fails to purchase all
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
3
<PAGE>
the attached Prospectus Supplement
dated September 6, 1996, then the
Subsequent Spread Period shall have a
term of one year and the Remarketing
Underwriter shall pay to the Company
on each Interest Payment Date during
such Subsequent Spread 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 had the
Failure not occurred.
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) on 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 a rate per annum equal to the
applicable LIBOR plus the Alternate
Spread for the Subsequent Spread
Period selected by the Company on the
Spread Determination Date, over (b)
the aggregate interest that would
have been payable by the Company on
the Notes for a period equivalent to
the interest period on the New Debt,
assuming the interest rate for
such
4
<PAGE>
period equaled that determined in
accordance with the terms of the
Notes assuming that no Failure had
occurred.
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.
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 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 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
5
<PAGE>
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.
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.
6
<PAGE>
Closing Date; Tender Date: Baker & Botts, L.L.P., 599 Lexington
Avenue, New York, New York
10022-6030, at 10:00 a.m., New York
City time, on the Tender Date.
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:
7
<PAGE>
Exhibit 4.1
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 $350,000,000
TCI COMMUNICATIONS, INC.
Remarketed Floating Rate Reset Note due September 15, 2003
CUSIP 872287 AH0
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 THREE
HUNDRED FIFTY MILLION DOLLARS ($350,000,000), on September 15, 2003, 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) quarterly in arrears on December 15,
March 15, June 15 and September 15 of each year (or, if not a Business Day (as
defined below), on the next succeeding Business Day (except as described below))
(each, an "Interest Payment Date"), commencing December 16, 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
11, 1996. The interest so payable on any December 15, March 15, June 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 December 1, March 1, June 1 and
September 1 preceding such December 15, March 15, June 15 or September 15,
respectively.
<PAGE>
This Global Note is issued in respect of a duly authorized issue of
Securities of the Company, designated as the Remarketed Floating Rate Reset
Notes due September 15, 2003 of the Company (herein called the "Notes"), limited
(except as otherwise provided in the Indenture referred to below) in aggregate
principal amount to $350,000,000. 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 December 20, 1995 (such Indenture 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 such terms. 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 on the Notes will reset quarterly. The Notes will
bear interest at a per annum rate (computed on the basis of the actual number of
days elapsed over a 360-day year) equal to LIBOR (as defined below) for the
applicable Quarterly Period (as defined below) plus the applicable Spread (as
defined below). The initial Quarterly Period will be the period from and
including September 11, 1996 to but excluding the first Interest Payment Date
(December 16, 1996) (the "Initial Quarterly Period"). Thereafter, each
Quarterly Period will be from and including the most recent Interest Payment
Date to which interest has been paid to but excluding the next Interest Payment
Date; the first day of a Quarterly Period is referred to herein as an "Interest
Reset Date."
The Spread applicable during the one year period ending on September
15, 1997 (the "Initial Spread Period") shall be .65% (the "Initial Spread").
Thus, the interest rate per annum
2
<PAGE>
during the Initial Quarterly Period will be equal to LIBOR, determined as of
September 9, 1996, plus .65%. The interest rate per annum for each succeeding
Quarterly Period during the Initial Spread Period will equal LIBOR for such
Quarterly Period plus the Initial Spread. Thereafter, the Spread will be
determined in the manner described below for each subsequent Spread period (a
"Subsequent Spread Period"), which will be the period of at least one year and
not more than six years, designated by the Company, commencing on a September 15
(the "Commencement Date") and ending one, two, three, four, five or six years
subsequent, as the case may be, through and including 2003 (except that no
Subsequent Spread Period may end after September 15, 2003).
If any Interest Payment Date (other than at maturity or upon
redemption), Interest Reset Date, Spread Determination Date (as defined below),
Commencement Date or Tender Date (as defined below) would otherwise be a day
that is not a Business Day, such Interest Payment Date, Interest Reset Date,
Spread Determination Date, Commencement Date or Tender Date will be postponed to
the next succeeding day that is a Business Day, except that if such Business Day
is in the next succeeding calendar month, such Interest Payment Date, Interest
Reset Date, Spread Determination Date, Commencement Date or Tender Date shall be
the next preceding Business Day.
If the maturity date or a redemption date falls on a day that is not a
Business Day, the related payment of principal and interest will be made on the
next succeeding Business Day as if it were made on the date such payment was
due, and no interest will accrue on the amounts so payable for the period from
and after such dates.
LIBOR applicable for each Quarterly Period will be determined by the
Rate Agent (as defined below) as of the second London Business Day (as defined
below) (the "LIBOR Determination Date") preceding each Interest Reset Date
(September 9, 1996 in the case of the Initial Quarterly Period) in accordance
with the following provisions:
(i) LIBOR will be determined on the basis of the offered rates for
three-month deposits in U.S. Dollars of not less than U.S. $1,000,000,
commencing on the second London Business Day immediately following
such LIBOR Determination Date, which appears on the Telerate Page 3750
(as defined below) as of approximately 11:00 a.m., London time, on
such LIBOR Determination Date. "Telerate Page 3750" means the display
designated on page "3750" on the Telerate Service (or such other page
as may replace the 3750 page on that service or such other service or
services as may be nominated by the British Bankers' Association for
the purpose of displaying London interbank offered rates for U.S.
Dollar deposits). If no rate appears on the Telerate Page 3750, LIBOR
for such LIBOR Determination Date will be determined in accordance
with the provisions of paragraph (ii) below.
(ii) With respect to a LIBOR Determination Date on which no rate
appears on Telerate Page 3750 as of approximately 11:00 a.m., London
time, on such LIBOR
3
<PAGE>
Determination Date, the Rate Agent shall request the principal London
offices of each of four major reference banks in the London interbank
market selected by the Rate Agent to provide the Rate Agent with a
quotation of the rate at which three-month deposits in U.S. Dollars,
commencing on the second London Business Day immediately following
such LIBOR Determination Date, are offered by it to prime banks in the
London interbank market as of approximately 11:00 a.m., London time,
on such LIBOR Determination Date and in a principal amount equal to an
amount of not less than U.S. $1,000,000 that is representative for a
single transaction in such market at such time. If at least two such
quotations are provided, LIBOR for such LIBOR Determination Date will
be the arithmetic mean of such quotations as calculated by the Rate
Agent. If fewer than two quotations are provided, LIBOR for such LIBOR
Determination Date will be the arithmetic mean of the rates quoted as
of approximately 11:00 a.m., New York City time, on such LIBOR
Determination Date by three major banks in The City of New York
selected by the Rate Agent (after consultation with the Company) for
loans in U.S. Dollars to leading European banks, having a three-month
maturity commencing on the second London Business Day immediately
following such LIBOR Determination Date and in a principal amount
equal to an amount of not less than U.S. $1,000,000 that is
representative for a single transaction in such market at such time;
provided, however, that if the banks selected as aforesaid by the Rate
Agent are not quoting as mentioned in this sentence, LIBOR for such
LIBOR Determination Date will be the LIBOR determined with respect to
the immediately preceding LIBOR Determination Date, or in the case of
the first LIBOR Determination Date, LIBOR for the Initial Quarterly
Period.
The Spread that will be applicable during each Subsequent Spread
Period will be the percentage (a) recommended by the Remarketing Underwriter
(as defined below) 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, as described
below, and (b) agreed to by the Company.
Unless notice of redemption of the Notes as a whole has been given,
the Spread for each Subsequent Spread Period and the duration of such Subsequent
Spread Period will be established by 3:00 p.m., New York City time, on the 10th
calendar day prior to the Commencement Date of such Subsequent Spread Period
(the "Spread Determination Date"). The term "Business Day" means any day other
than a Saturday or Sunday or a day on which banking institutions in The City of
New York are required or authorized to close and that is also a London Business
Day. The term "London Business Day" means any day on which dealings in U.S.
Dollars are transacted in the London interbank market.
In the event that the Company and the Remarketing Underwriter do not
agree on the Spread for any Subsequent Spread Period, then (1) the Subsequent
Spread Period will be one year, (2) the Spread for such Subsequent Spread Period
will be the Alternate Spread and (3) the Notes will be redeemable at the option
of the Company, in whole or in part in the manner described below (with respect
to a redemption by the Company on September 15, 1997 or any
4
<PAGE>
September 15 following the end of a Subsequent Spread Period), upon at least 10
Business Days notice given by no later than the second Business Day after the
Spread Determination Date at a redemption price equal to 100% of the principal
amount thereof, together with accrued interest to the redemption date. The
Alternate Spread will be the percentage equal to LIBOR (determined as described
above) for the Quarterly Period beginning on the Commencement Date for such
Subsequent Spread Period.
All percentages resulting from any calculation of any interest rate
for the Notes will be rounded, if necessary, to the nearest one hundred
thousandth of a percentage point, with five one millionths of a percentage point
rounded upward and all dollar amounts will be rounded to the nearest cent, with
one half cent being 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 New York Business Day (as
defined below) next following the Spread Determination Date for each Subsequent
Spread Period in the manner described below, specifying (1) the term of such
Subsequent Spread Period, (2) the Spread for such Subsequent Spread Period, (3)
that LIBOR for the initial Quarterly Period of such Subsequent Spread Period
will be determined as of the relevant LIBOR Determination Date (which date shall
be specified in such notice), and (4) 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. The term "New York Business Day" means any day other than a Saturday or
Sunday or a day on which banking institutions in the City of New York are
required or authorized to close.
In the event the Company and the Remarketing Underwriter agree on the
Spread on the Spread Determination Date with respect to any Subsequent Spread
Period, the Company and the Remarketing Underwriter will enter into a
Remarketing Underwriting Agreement (the "Remarketing Underwriting Agreement") on
such Spread Determination Date, under which the Remarketing Underwriter will
agree, subject to the terms and conditions set forth therein, to purchase from
tendering Noteholders on September 15, 1997 and on any September 15 thereafter
immediately following the end of a Subsequent Spread 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 below), 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
procedures of the Depositary. Interest accrued on the Notes with respect to the
preceding Quarterly Period will be paid by the Company in the manner described
above.
The Tender Notice must be received by the Remarketing Underwriter
during the period commencing on the calendar day (or, if not a Business Day, on
the next succeeding Business Day) next following the Spread Determination Date
and ending at 5:00 p.m., New York City
5
<PAGE>
time, on the fifth calendar day (or, if not a Business Day, on the next
succeeding Business Day) following the Spread Determination 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 from
tendering Noteholders will be subject to several 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 Spread 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, then (1) all such Tender
Notices will be null and void, (2) none of the Notes for which such Tender
Notices shall have been given will be purchased by the Remarketing Underwriter
on such Tender Date, (3) the Subsequent Spread Period will be one year, which
Subsequent Spread Period shall be deemed to have commenced upon the applicable
Commencement Date, (4) the Spread for such Subsequent Spread Period shall be the
Alternate Spread and (5) the Notes shall be redeemable at the option of the
Company, in whole or in part in the manner described below (with respect to a
redemption by the Company on September 15, 1997 or any September 15 following
the end of a Subsequent Spread Period), 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 by no
later than the 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
Notes, except as provided in clause (4) of the last sentence of the preceding
paragraph. The Company will have no obligation under any circumstance to
repurchase any Notes, except in the case of Notes called for redemption as
described herein and in the case of a Change of Control 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 specifying (1) the one-year term of the
Subsequent Spread Period, (2) the Spread for such Subsequent Spread Period
(which shall be the Alternate Spread) and (3) LIBOR for the initial Quarterly
Period of such Subsequent Spread Period. Such notice will be published on a New
York Business Day 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
"Remarketing Underwriter").
6
<PAGE>
The term "Rate Agent" means the nationally recognized broker-dealer selected by
the Company as its agent to determine LIBOR and the interest rate of the Notes
for any Quarterly Period (the "Rate Agent"). Pursuant to a Remarketing
Agreement dated as of September 6, 1996 with the Company, Merrill Lynch, Pierce,
Fenner & Smith Incorporated has agreed to act as Remarketing Underwriter and
Rate Agent. The Company, in its sole discretion, may change the Remarketing
Underwriter and the Rate Agent for any Subsequent Spread Period at any time on
or prior to 3:00 p.m., New York City time, on the Spread Determination Date
relating thereto.
The Notes may not be redeemed by the Company prior to September 15,
1997. On that date and on any September 15 thereafter immediately following the
end of a Subsequent Spread Period, the Notes may be redeemed, at the option of
the Company, in whole or in part, upon notice thereof given at any time during
the 45 calendar day period ending on the tenth calendar day prior to the
redemption 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. The Company may also redeem the Notes, in whole or in
part, as described above following (i) a failure by the Company and the
Remarketing Underwriter to agree on the Spread for a Subsequent Spread Period or
(ii) a failure by the Remarketing Underwriter to purchase on the relevant Tender
Date all Notes for which a Tender Notice shall have been given. In the event of
any redemption of less than all of 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 the 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 shall be given by
publication in a daily newspaper in the English language of general circulation
of The City of New York.
In the event that (i) a Change of Control occurs on or before
September 15, 2003, and (ii) on any date during the period commencing 90 days
prior to and ending 90 days after the date on which a public filing has been
made with the Securities and Exchange Commission or other general public
disclosure has been made indicating the occurrence of such Change of Control,
two or more Downgrading Agencies shall downgrade their respective ratings of the
Notes from the ratings in effect at the beginning of such 180-day period (the
occurrence of the conditions specified in both (i) and (ii) being a "Put Event")
(except that a Put Event shall not be deemed to have occurred if there are at
least two National Rating Agencies that have ratings of the Notes in effect at
the beginning of such 180-day period that are not Downgrading Agencies), 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 (as defined in the Indenture) with respect
to the Notes shall have occurred and be continuing, the principal hereof may be
declared, and upon such
7
<PAGE>
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 Notes may be
amended or supplemented, and any past default or compliance with any provision
may be waived insofar as the Notes are concerned, with the consent of the
holders of a majority in aggregate principal amount of the outstanding Notes.
Without the consent of any Noteholder, the Company and the Trustee may amend or
supplement the Indenture or the Securities of any series (including the Notes)
to cure any ambiguity, defect or to make certain other changes specified in the
Indenture or any change that, in the opinion of the Board of Directors, does not
materially adversely affect the rights of any Noteholder.
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 (past, present or
future), as such, of the Company or the Trustee or any successor of either
thereof 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.
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 11, 1996
TCI COMMUNICATIONS, INC.
By:/s/ Brendan R. Clouston
----------------------------------
President
[Company Seal appears here]
By:/s/ Stephen M. Brett
----------------------------------
Secretary
8
<PAGE>
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein referred
to in the within-mentioned Indenture.
THE BANK OF NEW YORK
as Trustee
By /s/ Walter N. Gitlin
--------------------------------
Authorized Signatory
9
<PAGE>
Exhibit 5.1
September 11, 1996
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.
33-63139) (the "Registration Statement") which was filed with and declared
effective by the Securities and Exchange Commission (the "Commission") pursuant
to the Securities Act of 1933 (the "Act"), in connection with the proposed
offering from time to time (i) by TCI Communications, Inc., a Delaware
Corporation (the "Company") of senior, senior subordinated or subordinated debt
securities of the Company ("Debt Securities") for an aggregate initial offering
price of up to $3,000,000,000 (or the equivalent thereof denominated in one or
more foreign currencies, foreign currency units or composite currencies), and
(ii) by Tele-Communications, Inc., a Delaware corporation ("Parent") of such
indeterminate number of shares of Series A TCI Group Common Stock, $1.00 par
value per share, of Parent, as may be issued from time to time upon conversion
of any of the Debt Securities so registered that are issued as convertible Debt
Securities and guarantees of the Parent which may be issued in respect of Debt
Securities so registered. The term "Registration Statement", as used herein,
means such registration statement, as amended or supplemented to the date
hereof, including all exhibits (other than Statements of Eligibility and
Qualification on Form T-1 under the Trust Indenture Act of 1939 of the trustees)
and the documents incorporated by reference therein, as amended. 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
December 20, 1995, ("Indenture"), between the Company and The Bank of New York,
as Trustee (the "Trustee").
On September 6, 1996, 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, $350,000,000 aggregate principal amount of a series of the Company's
Senior Debt Securities designated as its Remarketed Floating Rate Reset Notes
due September 15, 2003 (the "Securities"). On September 6, 1996, 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
<PAGE>
TCI Communications, Inc.
Page 2
Company's Board of Directors, including committees thereof; and such other
documents, records, certificates and questions of law as we deemed necessary or
appropriate for the purpose of this opinion. In rendering this opinion, we have
assumed the authenticity of all documents submitted to us as originals and the
conformity to authentic original documents of all documents submitted to us as
certified, 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 Notes" in the Prospectus Supplement dated September 6, 1996 to the
Prospectus dated September 6, 1996, 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,
/s/ Baker & Botts, L.L.P.
BAKER & BOTTS, L.L.P.
<PAGE>
Exhibit 23.2
Consent of Independent Auditors
-------------------------------
The Board of Directors and Stockholders
Tele-Communications, Inc.:
We consent to the incorporation by reference in the registration statement (No.
33-63139) on Form S-3 of Tele-Communications, Inc. and TCI Communications, Inc.
of our reports, dated March 18, 1996, relating to the consolidated balance
sheets of Tele-Communications, Inc. and subsidiaries as of December 31, 1995 and
1994, and the related consolidated statements of operations, stockholders'
equity, and cash flows for each of the years in the three-year period ended
December 31, 1995, and all related financial statement schedules, which reports
appear in the December 31, 1995 Annual Report on Form 10-K of
Tele-Communications, Inc. and to the reference to our firm under the heading
"Experts" in the registration statement.
/s/ KPMG Peat Marwick LLP
--------------------------------
KPMG Peat Marwick LLP
Denver, Colorado
September 6, 1996
<PAGE>
Exhibit 23.3
Consent of Independent Auditors
-------------------------------
The Board of Directors and Stockholders
Liberty Media Corporation:
We consent to the incorporation by reference in the Registration Statement (No.
33-63139) on Form S-3 of Tele-Communications, Inc. and TCI Communications, Inc.
of our report, dated March 18, 1994, relating to the consolidated statement of
operations, stockholders' equity, and cash flows of Liberty Media Corporation
and subsidiaries for the year ended December 31, 1993, which report appears in
the December 31, 1995 Annual Report on Form 10-K of Tele-Communications, Inc.
and to the reference to our firm under the heading "Experts" in the registration
statement. Our report refers to a change in the method of accounting for income
taxes.
/s/ KPMG Peat Marwick LLP
-----------------------------
KPMG Peat Marwick LLP
Denver, Colorado
September 6, 1996
<PAGE>
Exhibit 23.4
Consent of Independent Auditors
-------------------------------
The Board of Directors and Stockholders
TCI Communications, Inc.:
We consent to the incorporation by reference in the Registration Statement
(No. 33-63139) on Form S-3 of Tele-Communications, Inc. and TCI Communications,
Inc. of our report, dated March 18, 1996, relating to the consolidated balance
sheets of TCI Communications, Inc. and subsidiaries as of December 31, 1995 and
1994, and the related consolidated statements of operations, stockholder's(s')
equity, and cash flows for each of the years in the three-year period ended
December 31, 1995, and all related financial statement schedules, which reports
appear in the December 31, 1995 Annual Report on Form 10-K of TCI
Communications, Inc. and to the reference to our firm under the heading
"Experts" in the registration statement.
/s/ KPMG Peat Marwick LLP
-------------------------------------------------
KPMG Peat Marwick LLP
Denver, Colorado
September 6, 1996
<PAGE>
Exhibit 23.5
Consent of Independent Auditors
-------------------------------
The Board of Directors and Stockholders
Tele-Communications, Inc.:
We consent to the incorporation by reference in the Registration Statement
(No. 33-63139) on Form S-3 of Tele-Communications, Inc. and TCI Communications,
Inc. of our report, dated March 18, 1996, relating to the combined balance
sheets of TCI Group as of December 31, 1995 and 1994, and the related combined
statements of operations, equity, and cash flows for each of the years in the
three-year period ended December 31, 1995, which report appears in the December
31, 1995 Annual Report on Form 10-K of Tele-Communications, Inc. and to the
reference to our firm under the heading "Experts" in the registration statement.
Our report covering the combined financial statements refers to the effects of
not consolidating TCI Group's interest in Liberty Media Group for the periods
subsequent to the mergers of TCI Communications, Inc. and Liberty Media
Corporation on August 4, 1994.
/s/ KPMG Peat Marwick LLP
-------------------------------------------------
KPMG Peat Marwick LLP
Denver, Colorado
September 6, 1996
<PAGE>
Exhibit 23.6
Consent of Independent Auditors
-------------------------------
The Board of Directors and Stockholders
Tele-Communications, Inc.:
We consent to the incorporation by reference in the Registration Statement
(No. 33-63139) on Form S-3 of Tele-Communications, Inc. and TCI Communications,
Inc. of our report, dated March 18, 1996, relating to the combined balance
sheets of Liberty Media Group as of December 31, 1995 and 1994, and the related
combined statements of operations, equity, and cash flows for each of the years
in the three-year period ended December 31, 1995, which report appears in the
December 31, 1995 Annual Report on Form 10-K of Tele-Communications, Inc. and to
the reference to our firm under the heading "Experts" in the registration
statement.
/s/ KPMG Peat Marwick LLP
----------------------------------
KPMG Peat Marwick LLP
Denver, Colorado
September 6, 1996
<PAGE>
Exhibit 23.7
Consent of Independent Auditors
-------------------------------
The Board of Directors and Shareholders of
TeleWest plc:
We consent to the incorporation by reference in the registration statement (No.
33-63139) on Form S-3 of Tele-Communications, Inc. and TCI Communications, Inc.
of our report, dated March 6, 1996, relating to the consolidated balance sheet
of TeleWest plc and subsidiaries as of December 31, 1995 and 1994, and the
related consolidated statements of operations and cash flows for each of the
years in the three year period ended December 31, 1995, which report appears in
the December 31, 1995 Annual Report on Form 10-K of Tele-Communications, Inc.
and to the reference to our firm under the heading "Experts" in the
registration statement.
/s/ KPMG
------------------------------
KPMG
London, England
September 9, 1996
<PAGE>
Exhibit 23.8
Consent of Independent Auditors
-------------------------------
The Board of Directors and Shareholders
of Tele-Communications International, Inc:
We consent to the incorporation by reference in the registration statement (No.
33-63139) on Form S-3 of Tele-Communications, Inc. and TCI Communications, Inc.
of our report, dated March 24, 1995, relating to the combined balance sheets of
Cablevision (A combination of certain cable television assets of Cablevision
S.A., Televisora Belgrano S.A., Construred S.A. and Univent's S.A.) as of
December 31, 1994 and 1993, and the related combined statements of operations
and deficit and cash flows for each of the years in the three-year period ended
December 31, 1994, which report appears in the Current Report on Form 8-K of
Tele-Communications, Inc., dated April 20, 1995, as amended, and to the
reference to our firm under the heading "Experts" in the registration statement.
KPMG FINSTERBUSCH PICKENHAYN SIBILLE
/s/ Juan Carlos Pickenhayn
- ---------------------------------------
Juan Carlos Pickenhayn
Partner
Buenos Aires, Argentina
September 6, 1996
<PAGE>
Exhibit 23.9
CONSENT OF INDEPENDENT AUDITORS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of the Registration Statement No. 33-63139 on Form S-3 of TCI
Communications, Inc. of our report dated February 14, 1996, relating to the
combined balance sheets of VII Cable as of December 31, 1995 and 1994, and the
related combined statements of operations and cash flows for each of the years
in the three-year period ended December 31, 1995 which appear in the Current
Report on Form 8-K of TCI Communications, Inc. We also consent to the reference
to us under the heading "Experts" in such Prospectus.
/s/ Price Waterhouse LLP
- ------------------------
PRICE WATERHOUSE LLP
150 Almaden Boulevard
San Jose, California
September 6, 1996
