EXHIBIT 1.1
TCI COMMUNICATIONS, INC.
UNDERWRITING AGREEMENT
71/8% Senior Notes due February 15, 2028
February 19, 1998
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
▇▇▇▇▇▇▇, Sachs & Co.
Salomon Brothers Inc
Bear, ▇▇▇▇▇▇▇ & Co. Inc.
Credit Suisse First Boston Corporation
▇▇▇▇▇▇ Brothers Inc.
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
World Financial Center
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Dear Sirs:
TCI Communications, Inc., a Delaware corporation (the "Company"),
proposes to issue and sell $300,000,000 principal amount of its 71/8% Senior
Notes due February 15, 2028 (the "Offered Securities") pursuant to an indenture,
dated as of February 19, 1998 (as the same may be amended or supplemented, the
"Indenture"), with The Bank of New York, as trustee (the "Trustee"). Each
Offered Security will be issuable in the denominations and shall have the terms
set forth in Exhibit A. The term "Underwriters" as used herein will mean and
refer collectively to one or more of the several Underwriters named in Exhibit B
(and any substitute underwriter pursuant to Section 9 hereof), and the term
"Underwriter" will refer to any of the several Underwriters named in Exhibit B
(and any substitute underwriter pursuant to Section 9 hereof). The Company
confirms as follows its agreement with you and the Underwriters.
1. Registration Statement and Prospectus: The Company and Tele-
Communications, Inc., a Delaware corporation (the "Parent"), have 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. 333-44745), including a prospectus,
relating to, among other securities, debt securities of the Company ("Debt
Securities") issuable from time to time in one or more series, including the
Offered Securities, guarantees of the Parent that may be issued in
respect of Debt Securities, and shares of Tele-Communications, Inc. Series A TCI
Group Common Stock, par value $1.00 per share, of the Parent ("Common Stock")
issuable from time to time upon conversion of convertible Debt Securities, which
has become effective under the Act, and will promptly file with the Commission a
prospectus supplement specifically relating to the Offered Securities pursuant
to Rule 424 under the Act. As used in this Agreement, the term "Registration
Statement" means such shelf registration statement, including exhibits and
financial statements and schedules and documents incorporated by reference
therein, as amended or supplemented to the date hereof and, in the case of
references to the Registration Statement as of a date subsequent to the date
hereof, as amended or supplemented as of such date. The term "Basic Prospectus"
means the prospectus, dated February 19, 1998, as filed with the Commission
pursuant to Rule 424 under the Act and forming part of the Registration
Statement. The term "Prospectus" means the Basic Prospectus together with the
prospectus supplement specifically relating to the Offered Securities as filed
with the Commission pursuant to Rule 424 under the Act and any information
deemed to be a part thereof pursuant to Rule 434 under the Act. The term
"preliminary prospectus" means any preliminary prospectus supplement
specifically relating to the Offered Securities together with the Basic
Prospectus. Any reference herein to any preliminary prospectus or the Prospectus
shall be deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the Act, as of the date of such
preliminary prospectus or the Prospectus, as the case may be, and any reference
herein to any amendment or supplement to any preliminary prospectus or the
Prospectus, except the reference in Section 4(c), shall be deemed to refer to
and include any documents filed after such date under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), and so incorporated by reference.
2. Agreements to Sell and Purchase: The Company agrees to sell to the
Underwriters, and upon the basis of the representations, warranties and
agreements of the Company herein contained and subject to the terms and
conditions of this Agreement each of the Underwriters agrees to purchase from
the Company, severally and not jointly, the principal amount of Offered
Securities set forth opposite each Underwriter's respective name in Exhibit B,
at a purchase price of 98.406% of the principal amount of the Offered
Securities, plus accrued interest from February 24, 1998.
With respect to any of the Offered Securities purchased by you
hereunder that you continue to own or hold at any time on or after the 90th day
following the Closing Date (as defined in Section 3), you agree that upon
receipt of written notice from the Company of its intention to bid for or
purchase any Offered Security or any security of the same class and series as
the Offered Securities or to take any other action, directly or indirectly, the
taking of which would be proscribed by Regulation M promulgated by the
Commission under the Exchange Act (or any successor or equivalent rule or
regulation) during the distribution of the Offered Securities, you will, and
will cause your "affiliated purchasers" (as defined in Rule 100 of said
Regulation) to, cease distributing the Offered Securities for such period of
time as the Company may deem necessary so that the action or actions proposed to
be taken, directly or indirectly, by it may be taken in full compliance with
such Regulation (or any successor or equivalent rule or regulation).
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3. Delivery and Payment: Delivery of and payment for the Offered
Securities shall be made at 10:00 a.m., New York time, on February 24, 1998
(such time and date are referred to herein as the "Closing Date"), at the
offices of ▇▇▇▇▇ & ▇▇▇▇▇, L.L.P., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇. The Closing Date and the place of delivery of and payment for the Offered
Securities may be varied by agreement between you and the Company.
Delivery of the Offered Securities (in definitive form and registered
in such names and in such authorized denominations as you shall request at least
48 hours prior to the Closing Date by written notice to the Company) shall be
made to you against payment by you of the purchase price therefor by cashier or
official bank check or checks payable to the order of the Company in, or by wire
transfer to an account specified by the Company of, same day funds. For the
purpose of expediting the checking and packaging of the Offered Securities, the
Company agrees to make the Offered Securities available to you for inspection at
least 24 hours prior to the Closing Date or such shorter period of time as you
may agree to.
4. Agreements of the Company: The Company agrees with you as follows:
(a) The Company will notify you promptly, and (if requested by
you in writing) will confirm such advice in writing, during the period
of the distribution of the Offered Securities (1) of the effectiveness
of any amendment to the Registration Statement and of the filing of any
supplement to the Prospectus, (2) of any comments of the Commission
regarding the Registration Statement or the Prospectus (or any of the
documents incorporated by reference therein) or of any request by the
Commission for amendments or supplements to the Registration Statement
or the Prospectus or for additional information, (3) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or the initiation or threatening of any
proceedings for that purpose, (4) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Offered Securities for offer or sale in any jurisdiction or the
initiation or threatening of any proceedings for such purpose and (5)
of the happening of any event during the period mentioned in paragraph
(d) below which makes any statement of a material fact made in the
Registration Statement or the Prospectus (as theretofore amended or
supplemented) untrue or which requires the making of any changes in the
Registration Statement or the Prospectus (as theretofore amended or
supplemented) in order to make the statements therein, in light of the
circumstances when the Prospectus is delivered to a purchaser, not
misleading. The Company will use its reasonable best efforts to prevent
the issuance of any order suspending the effectiveness of the
Registration Statement or suspending the qualification of the Offered
Securities for offer or sale in any jurisdiction, and if any such order
is issued, the Company will make every reasonable effort to obtain the
withdrawal of such order at the earliest possible moment.
(b) The Company will furnish to each of you, without charge, one
conformed copy of the Registration Statement and any post-effective
amendment thereto filed in connection with the offering of the Offered
Securities, including all financial statements and
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schedules, exhibits and documents incorporated therein by reference
(including exhibits incorporated therein by reference to the extent not
previously furnished to you).
(c) The Company will give you advance notice of its intention to
file any amendment or supplement to the Registration Statement or the
Prospectus with respect to the Offered Securities, and will not file
any such amendment or supplement to which you shall reasonably object
in writing.
(d) During the period of time that the Prospectus is required by
law to be delivered, the Company will deliver to each Underwriter,
without charge, as many copies of the Prospectus or any amendment or
supplement thereto as such Underwriter may reasonably request. The
Company consents to the use of the Prospectus or any amendment or
supplement thereto by the Underwriters and by all dealers to whom the
Offered Securities may be sold, both in connection with the offering or
sale of the Offered Securities and for such period of time thereafter
as the Prospectus is required by law to be delivered in connection
therewith. If during such period of time any event shall occur which in
the judgment of the Company should be set forth (or incorporated by
reference) in the Prospectus in order to make the statements therein,
in light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading, or if it is necessary to supplement or amend
the Prospectus to comply with law, the Company will forthwith prepare
and duly file with the Commission an appropriate supplement or
amendment thereto, and forthwith file all reports and any definitive
proxy statement or information statement required to be filed by the
Company with the Commission pursuant to Sections 13(a), 13(c) or 14 of
the Exchange Act subsequent to the date of the Prospectus and during
such period, and will deliver to each Underwriter, without charge, such
number of copies thereof as such Underwriter may reasonably request. If
during such period of time any event shall occur which in your judgment
should be so set forth (or incorporated by reference) in the
Prospectus, or which in your judgment makes it necessary to so
supplement or amend the Prospectus, the Company will consult with you
concerning the necessity of filing with the Commission a supplement or
an amendment to the Prospectus or a report pursuant to Sections 13(a),
13(c) or 14 of the Exchange Act.
(e) Prior to any public offering of the Offered Securities by
the Underwriters, the Company will cooperate with you and your counsel
in connection with the registration or qualification of the Offered
Securities for offer and sale under the securities or Blue Sky laws of,
and the determination of the eligibility of the Offered Securities for
investment under the laws of, such jurisdictions as you request;
provided, that in no event shall the Company be obligated to qualify to
do business as a foreign corporation or as a securities dealer in any
jurisdiction where it is not now so qualified, to conform its
capitalization or the composition of its assets to the securities or
Blue Sky laws of any jurisdiction or to take any action which would
subject it to taxation or general service of process in any
jurisdiction where it is not now so subject. The Company will pay all
reasonable fees and expenses (including reasonable counsel fees and
expenses) relating to qualification of the Offered Securities
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under such securities or Blue Sky laws and in connection with the
determination of the eligibility of the Offered Securities for
investment under the laws of such jurisdictions as you may designate.
(f) The Company will make generally available to its security
holders and to you consolidated earnings statements (which need not be
audited) that satisfy the provisions of Section 11(a) of the Act and
Rule 158 thereunder.
(g) The Company will pay all expenses in connection with (1) the
preparation, printing and filing of the Registration Statement, any
preliminary prospectus, the Prospectus, any legal investment memorandum
and Blue Sky memorandum as contemplated by Section 4(e), (2) the
preparation, issuance and delivery of the Offered Securities (other
than transfer taxes) and the execution and delivery of the Indenture,
(3) the printing of any dealer agreement, (4) furnishing such copies of
the Registration Statement, the Prospectus and any preliminary
prospectus, and all amendments and supplements thereto, including any
term sheets delivered by the Company pursuant to Rule 434 under the
Act, as may be requested for use in connection with the offering and
sale of the Offered Securities by dealers to whom Offered Securities
may be sold, and (5) any fees paid to rating agencies, if any, selected
by the Company in connection with the rating of the Offered Securities.
(h) If this Agreement is terminated by you because any condition
to the obligations of the Underwriters set forth in Section 7 hereof is
not satisfied or because of any failure or refusal on the part of the
Company to comply with the terms hereof or if for any reason the
Company shall be unable to perform its obligations hereunder, the
Company will reimburse the Underwriters for all out-of-pocket expenses
(including the fees and expenses of your counsel) reasonably incurred
by the Underwriters in connection herewith. The Company will not in any
event be liable to you or any of the Underwriters for damages on
account of loss of anticipated profits.
(i) From the date hereof to and including the Closing Date, the
Company will not offer or sell, or contract to sell, any Debt
Securities of the Company with a maturity of more than one year,
including additional Offered Securities, pursuant to a public offering
without your prior written consent.
5. Representations and Warranties of the Company: The Company
represents and warrants to each Underwriter that:
(a) the documents incorporated by reference in the Registration
Statement and the Prospectus, when they were filed (or, if an amendment
with respect to any such document was filed, when such amendment was
filed) with the Commission, conformed in all material respects to the
requirements of the Exchange Act and the rules and regulations of the
Commission promulgated thereunder, and any further documents so filed
and incorporated by reference during the period of the distribution of
the Offered Securities will, when they
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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
Securities, filed pursuant to Rule 424 or Rule 434 under the Act, will
comply when so filed in all material respects with the Act; and when
the Prospectus or any term sheet is first filed with the Commission
pursuant to Rule 424 or Rule 434 and as of the Closing Date, the
Registration Statement and the Prospectus (as amended or supplemented,
if applicable) will comply in all material respects with the
requirements of the Act and the Indenture will comply in all material
respects with the requirements of the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"). When it was declared effective by
the Commission, the Registration Statement did not, and as of the date
the Prospectus is first filed with the Commission pursuant to Rule 424
or Rule 434 and as of the Closing Date the Registration Statement (as
amended or supplemented, if applicable) will not, contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading. When the Prospectus is first filed with the Commission
pursuant to Rule 424 or Rule 434 and as of the Closing Date, the
Prospectus (as amended or supplemented, if applicable) will not contain
an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading. Notwithstanding the foregoing, this representation and
warranty does not apply to statements or omissions in the Registration
Statement or the Prospectus or any preliminary prospectus made in
reliance upon information furnished to the Company in writing by any
Underwriter expressly for use therein or to that part of the
Registration Statement which consists of the Statements of Eligibility
on Form T-1 under the Trust Indenture Act of the trustees for the Debt
Securities;
(c) the Offered Securities and the Indenture have been duly
authorized by the Company and each will conform to the descriptions
thereof in the Prospectus;
(d) the issuance and sale of the Offered Securities and the
fulfillment of the terms of this Agreement will not result in a breach
of any of the terms or provisions of, or constitute a default under,
the Company's charter or by-laws or any indenture, mortgage, deed of
trust or other material agreement or instrument to which the Company or
any of its
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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 Securities by the Underwriters 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 Sections 13(a) and 13(c)
of the Exchange Act and of its proxy statements pursuant to Section 14
of the Exchange Act; and
(g) except to the extent set forth in the Prospectus, the
Company has not received any notice of, nor does it have any actual
knowledge of, any failure by it or any of its significant subsidiaries
to be in substantial compliance with all existing statutes and
regulations applicable to it or such subsidiaries, which failure would
materially and adversely affect the conduct of the business of the
Company and its subsidiaries, considered as a whole.
6. Indemnification: The Company agrees to indemnify and hold harmless
each Underwriter, and each person, if any, who controls each Underwriter within
the meaning of either Section 15 of the Act or Section 20 of the Exchange Act,
from and against any and all losses, claims, damages, liabilities and expenses
(including reasonable costs of investigation) arising out of or based upon any
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus or in any amendment or supplement
thereto or in any preliminary prospectus, or arising out of or based upon any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein (in the case of the
Prospectus, 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
any Underwriter expressly for use therein; provided, however, the Company shall
not indemnify any Underwriter or any person who controls such Underwriter from
any such losses, claims, damages or liabilities alleged by any person who
purchased Offered Securities from such Underwriter if the untrue statement,
omission or allegation thereof upon which such losses, claims, damages or
liabilities are based was made in: (i) any preliminary prospectus, if a copy of
the Prospectus (as then amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) was not sent or given by or on
behalf of such Underwriter to such person at or prior to the written
confirmation of the sale of Offered Securities to such person, and if the
Prospectus (as so amended or supplemented) corrected the untrue statement or
omission giving rise to such loss, claim, damage or liability; (ii) any
Prospectus used by such Underwriter or any person who controls such Underwriter,
after such time as the Company advised you that the filing of a post-
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effective amendment or supplement thereto was required, except the Prospectus as
so amended or supplemented; or (iii) any Prospectus used after such time as the
obligation of the Company to keep the same current and effective has expired.
This indemnity will be in addition to any liability which the Company may
otherwise have.
If any action or proceeding (including any governmental investigation)
shall be brought or asserted against any Underwriter or any person controlling
an Underwriter in respect of which indemnity may be sought from the Company,
such Underwriter or such controlling person shall promptly notify the Company in
writing, and the Company shall assume the defense thereof, including the
employment of counsel reasonably satisfactory to you and the payment of all
expenses. Any omission so to notify the Company shall not, however, relieve the
Company from any liability which it may have to any indemnified party otherwise
than under this Section 6. Any such Underwriter or any such person controlling
an Underwriter shall have the right to employ separate counsel in any such
action or proceeding and to participate in the defense thereof, but the fees and
expenses of such separate counsel shall be such Underwriter's expense or the
expense of such controlling person unless (a) the Company has agreed to pay such
fees and expenses or (b) the Company shall have failed to assume the defense of
such action or proceeding and employ counsel reasonably satisfactory to you in
any such action or proceeding or (c) the named parties to any such action or
proceeding (including any impleaded parties) include both such Underwriter or
such controlling person and the Company, and you shall have been advised by your
counsel that there may be a conflict of interest between such Underwriter or
controlling person and the Company in the conduct of the defense of such action
(in which case, if such Underwriter or such controlling person notifies the
Company in writing that it elects to employ separate counsel at the expense of
the Company, the Company shall not have the right to assume the defense of such
action or proceeding on behalf of such Underwriter or such controlling person),
it being understood, however, that the Company shall not, in connection with any
one such action or proceeding or separate but substantially similar or related
actions or proceedings arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of more than one
separate firm of attorneys (unless the members of such firm are not admitted to
practice in a jurisdiction where an action is pending, in which case the Company
shall pay the reasonable fees and expenses of one additional firm of attorneys
to act as local counsel in such jurisdiction, provided the services of such
counsel are substantially limited to that of appearing as attorneys of record)
at any time for all indemnified parties, which firm shall be designated in
writing by you. The Company shall not be liable for any settlement of any such
action or proceeding effected without its written consent, but if settled with
its written consent, or if there be a final judgment for the plaintiff in any
such action or proceeding, the Company agrees to indemnify and hold harmless
each Underwriter and any such controlling person from and against any loss or
liability by reason of such settlement or judgment.
Each Underwriter severally agrees to indemnify and hold harmless the
Company, its directors and each of its officers, and each person, if any, who
controls the Company within the meaning of either Section 15 of the Act or
Section 20 of the Exchange Act, to the same extent as the foregoing indemnity
from the Company to each Underwriter, but only with respect to information
furnished in writing by such Underwriter expressly for use in the Registration
Statement, the Prospectus, or
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any amendment or supplement thereto, or any preliminary prospectus. In case any
action or proceeding shall be brought against the Company or its directors or
officers or any such controlling person, in respect of which indemnity may be
sought against one or more of the several Underwriters, such Underwriters acting
through the Representatives shall have the rights and duties given to the
Company, and the Company or its directors or officers or such controlling person
shall have the rights and duties given to you and the several Underwriters, by
the preceding paragraph.
If the indemnification provided for in this Section 6 is unavailable to
an indemnified party under the first or third paragraph hereof in respect of any
losses, claims, damages or liabilities referred to therein (other than by reason
of such indemnified party's failure to comply with the first sentence of the
second paragraph of this Section 6), then each applicable indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the amount paid
or payable by such indemnified party as a result of such losses, claims, damages
or liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the
other hand from the offering of the Offered 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 the Underwriters on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative benefits received
by the Company on the one hand and the Underwriters on the other in connection
with the Offering of the Offered Securities shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Offered Securities
received by the Company bear to the total underwriting discounts received by the
Underwriters in respect thereof. The relative fault of the Company on the one
hand and of the Underwriters on the other shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Underwriters through you and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The amount paid or payable by a
party as a result of the losses, claims, damages and liabilities referred to
above shall be deemed to include, subject to the limitations set forth in the
second paragraph of this Section 6, any legal or other fees or expenses
reasonably incurred by such party in connection with investigating or defending
any action or claim.
The Company and each Underwriter agree that it would not be just and
equitable if contribution pursuant to this Section 6 were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 6, the Underwriters shall not be
required to contribute any amount in excess of the amount by which the total
price at which the Offered Securities were offered to the public exceeds the
amount of any damages which the Underwriters have otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
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The indemnity and contribution agreements contained in this Section 6
and the representations and warranties of the Company contained in this
Agreement shall remain operative and in full force and effect regardless of (a)
any investigation made by or on behalf of the Underwriters, by or on behalf of
any person controlling any Underwriter or by or on behalf of the Company, (b)
acceptance of any of the Offered Securities and payment therefor or (c) any
termination of this Agreement.
7. Conditions of the Underwriters' Obligations: The Underwriters'
obligations hereunder are subject to the following conditions:
(a) at the Closing Date, (i) no stop order suspending the
effectiveness of the Registration Statement shall have been issued and
no proceedings for that purpose shall be pending or threatened by the
Commission; and you shall have received a certificate, dated the
Closing Date and signed by the Chairman of the Board, the President, an
Executive Vice President or a Senior Vice President 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 a
nationally recognized securities rating organization in the United
States to the senior debt securities of the Company as of the date of
this Agreement shall not have been lowered since that date;
(b) you shall have received opinions, dated the Closing Date and
reasonably satisfactory to counsel retained for the Underwriters, (A)
from ▇▇▇▇, Raywid & ▇▇▇▇▇▇▇▇▇, L.L.P. or such other special
communications counsel for the Company as may be reasonably
satisfactory to you, (B) from the General Counsel of the Company to the
following effect and covering such additional matters as the
Underwriters may reasonably request:
(i) the Company and each of its significant subsidiaries
is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation
and has the corporate power and authority to carry on its business
as described in the Prospectus (as amended or supplemented, if
applicable) and the Company has the corporate power and authority
to execute and deliver and perform its obligations under this
Agreement and to issue and sell the Offered Securities as
contemplated by this Agreement;
(ii) the Company and each of its significant subsidiaries
is duly qualified as a foreign corporation and is in good standing
in each jurisdiction in which the failure to so qualify would, in
the aggregate, have a material adverse effect upon the financial
condition, results of operations, business or properties of the
Company and its subsidiaries taken as a whole;
(iii) all corporate proceedings legally required in
connection with the authorization and issuance of the Offered
Securities and the sale of the Offered
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Securities by the Company in accordance with the terms of this
Agreement have been taken;
(iv) to the best knowledge of such counsel, there is no
legal or governmental proceeding pending or threatened against the
Company or any of its subsidiaries which is required to be
disclosed in the Prospectus (as amended or supplemented, if
applicable) and is not so disclosed and correctly summarized
therein;
(v) to the best knowledge of such counsel, there is no
contract or other document known to such counsel of a character
required to be described in the Prospectus (as amended or
supplemented, if applicable) or to be filed as an exhibit to the
Registration Statement (or to a document incorporated by reference
therein) that is not described or filed as required;
(vi) the execution and delivery of this Agreement and the
Indenture, the issuance of the Offered Securities and the
fulfillment of the terms herein and therein contained do not
conflict with, or result in a breach of, or constitute a default
under, the charter or by-laws of the Company or, to the best
knowledge of such counsel, conflict in any material respect with,
or result in a material breach of or constitute a material default
under any material agreement, indenture or other instrument known
to such counsel to which the Company or any of its significant
subsidiaries is a party or by which it is bound, 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 ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLC or (ii) the
federal securities laws, the Blue Sky or securities laws of any
jurisdiction; and
(vii) to the best knowledge of such counsel, neither the
Registration Statement nor the Prospectus, as amended or
supplemented, if applicable (except as to the financial statements
and schedules and any other financial and statistical data
contained and 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 ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLC, special counsel to the Company,
to the following effect and covering such additional matters as you may
reasonably request:
11
(i) the execution and delivery of this Agreement and the
Indenture, the issuance of the Offered Securities and the
fulfillment of the terms herein and therein contained do not, to
the best knowledge of such counsel, result in a material breach of
or constitute a material default under any material agreement for
borrowed money known to such counsel to which the Company or any of
its significant subsidiaries is a party or by which it is bound;
and
(ii) the Company is not an "investment company" within the
meaning of the Investment Company Act of 1940, as amended, and is
not subject to regulation under such Act.
and (D) from ▇▇▇▇▇ & ▇▇▇▇▇, L.L.P., special counsel to the Company,
or such other counsel to the Company as may be reasonably satisfactory
to you, to the following effect and covering such additional matters as
you may reasonably request:
(i) this Agreement and the Indenture have been duly
authorized, executed and delivered by the Company; and the
Indenture is a legal, valid and binding agreement of the Company
enforceable in accordance with its terms, except (A) as such
enforceability may be limited by bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium and other laws
affecting creditors' rights generally, and (B) that the remedy of
specific performance and injunctive and other forms of equitable
relief are subject to certain equitable defenses and to the
discretion of the court before which any proceeding therefor may be
brought;
(ii) the Indenture has been duly qualified under, and
complies in all material respects with the requirements of, the
Trust Indenture Act;
(iii) the Offered Securities, when executed and
authenticated in accordance with the terms of the Indenture and
delivered to and paid for by the Underwriters in accordance with
this Agreement, will be legal, valid and binding obligations of the
Company entitled to the benefits of the Indenture and enforceable
in accordance with their terms, except (A) as such enforceability
may be limited by bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium and other laws affecting
creditors' rights generally, and (B) that the remedy of specific
performance and injunctive and other forms of equitable relief are
subject to certain equitable defenses and to the discretion of the
court before which any proceeding therefor may be brought;
(iv) the Registration Statement is effective under the Act
and, to the best knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceeding for that purpose is pending or threatened
by the Commission; and
12
(v) the Offered Securities and the Indenture conform in
all material respects as to legal matters to the descriptions
thereof in the Prospectus.
In addition, such counsel shall state that: "The
Registration Statement and the Prospectus, as amended or
supplemented, if applicable (except as to (x) the financial
statements and schedules and any other financial and statistical
data contained or incorporated by reference therein and (y) the
documents incorporated or deemed to be incorporated by reference
therein, as to which no opinion is expressed), complied, as of the
date the Prospectus was first filed with the Commission pursuant to
Rule 424, and comply, as of the date hereof, as to form in all
material respects with the requirements of the Act and the rules
and regulations of the Commission under the Act (the "Rules"). In
passing upon the form of such documents, we have necessarily
assumed the correctness and completeness of the statements made or
included therein by the Company and take no responsibility for the
accuracy, completeness or fairness of the statements contained
therein except insofar as such statements relate to the description
of the Offered Securities and the Indenture or relate to us.
However, in connection with the preparation of the Registration
Statement and the Prospectus, we had conferences with certain
officers and other representatives of the Company, and our
examination of the Registration Statement and the Prospectus and
our discussions in such conferences did not disclose to us any
information (relying as to the materiality of any such information
primarily upon officers and other representatives of the Company)
which gave us reason to believe that either the Registration
Statement or the Prospectus, as amended or supplemented, if
applicable (except as to (x) the financial statements and schedules
and any other financial and statistical data contained or
incorporated by reference in the Registration Statement or the
Prospectus and (y) the documents incorporated or deemed to be
incorporated by reference therein, as to which no opinion is
expressed), contained, as of the date the Prospectus was first
filed with the Commission pursuant to Rule 424, or contains, as of
the date hereof, any untrue statement of a material fact or omitted
or omits to state any material fact required to be stated therein
or necessary to make the statements therein (in the case of the
Prospectus, as amended or supplemented, if applicable, in light of
the circumstances under which they were made,) not misleading."
In giving such opinions, such counsel may rely (x) as to
matters of fact, to the extent they deem proper, upon certificates
of officers of the Company, public officials and others, and (y) as
to matters of law if other than the United States or Colorado (in
the case of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLC and General Counsel of the
Company) or New York (in the case of ▇▇▇▇▇ & ▇▇▇▇▇, L.L.P.), on the
opinions of local counsel retained by them or the Company, provided
that such counsel are satisfactory to you and counsel for the
Underwriters;
(c) you shall have received on the Closing Date from counsel
retained by you on behalf of the Underwriters an opinion to the effect
set forth in clauses (b)(D)(i) and (iii) and
13
to the effect that the Registration Statement and the Prospectus, as
amended or supplemented, if applicable, (except as to (x) the financial
statements and schedules and any other financial and statistical data
contained or incorporated by reference therein, and (y) the documents
incorporated or deemed to be incorporated by reference therein, as to
which no opinion need be expressed) comply as to form in all material
respects with the Act. In addition, you shall have received on the
Closing Date from such counsel an opinion with respect to the
Registration Statement and the Prospectus in the form customarily given
by such firm;
(d) on the Closing Date you shall have received a letter
addressed to the Representatives from KPMG Peat Marwick LLP,
independent auditors for the Company, reasonably satisfactory to you;
(e) the representations and warranties of the Company in this
Agreement shall be true and correct on and as of the Closing Date; the
Company shall have complied with all agreements and satisfied all
conditions on its part to be performed or satisfied at or prior to the
Closing Date; and except as reflected in or contemplated by the
Registration Statement and the Prospectus, since the respective dates
as of which information is given in the Registration Statement and the
Prospectus, there shall not have been, at the Closing Date, any
material adverse changes in the condition (financial or otherwise),
business, prospects or results of operations of the Company and its
subsidiaries, considered as a whole; and
(f) subsequent to the date of this Agreement, there shall not
have occurred any change, or any development involving a prospective
change, in or affecting particularly the business, prospects or
financial affairs of the Company and its subsidiaries, considered as a
whole which, in your reasonable judgment, is so material and adverse
that it would be impracticable to proceed with the public offering or
delivery of the Offered Securities on the terms and in the manner
contemplated by the Prospectus.
8. Termination of Agreement: The obligation of the Underwriters to
purchase the Offered Securities may be terminated at any time prior to the
Closing Date by notice to the Company from you, without liability on the part of
the Underwriters to the Company, if, on or prior to such date, (i) additional
material governmental restrictions, not in force and effect on the date of this
Agreement, shall have been imposed upon trading in securities generally or
minimum or maximum prices shall have been generally established on the New York
Stock Exchange or on the American Stock Exchange, or trading in securities
generally shall have been suspended on either such Exchange or trading in the
common stock or debt securities of the Company in the over-the-counter market
shall have been suspended or a general banking moratorium shall have been
established by Federal or New York authorities, or (ii) a war involving the
United States of America or other national calamity shall have occurred or shall
have accelerated to such an extent as to affect adversely the marketability of
the Offered Securities.
14
9. Default by One or More of the Underwriters: If one or more of the
Underwriters shall fail on the Closing Date to purchase the Offered Securities
that it or they are obligated to purchase hereunder (the "Defaulted
Securities"), the Underwriters shall have the right, within 24 hours thereafter,
to make arrangements for one or more of the non-defaulting Underwriters, or any
substitute underwriter, to purchase all, but not less than all, of the Defaulted
Securities in such amounts as may be approved by you and upon the terms herein
set forth; if however, you have not completed such arrangements within such 24-
hour period, then:
(a) if the principal amount of Defaulted Securities does not
exceed 10% of the aggregate principal amount of Offered Securities, the
non-defaulting Underwriters shall be obligated to purchase the full
amount thereof in the proportions that their respective underwriting
obligations hereunder bear to the underwriting obligations of all non-
defaulting Underwriters, or
(b) if the principal amount of Defaulted Securities exceeds 10%
of the aggregate principal amount of Offered Securities, the Company
shall be entitled for an additional 24- hour period to find one or more
substitute underwriters satisfactory to the Underwriters in their
reasonable discretion to purchase such Defaulted Securities.
In the event of any such default either the Underwriters or the Company
shall have the right to postpone the Closing Date for a period not exceeding
seven days in order to effect any required changes in the Registration Statement
or Prospectus or in any other documents or arrangements relating to the purchase
of the Offered Securities.
If the principal amount of Defaulted Securities exceeds 10% of the
aggregate principal amount of Offered Securities, and neither the Underwriters
nor the Company make arrangements pursuant to this Section 9 within the period
stated for the purchase of the Defaulted Securities, this Agreement shall
terminate without liability on the part of any non-defaulting Underwriter to the
Company except as provided in Section 6.
No action taken pursuant to this Section 9 shall relieve any defaulting
Underwriter from liability in respect of its default.
A substitute underwriter hereunder shall be an Underwriter for all
purposes of this Agreement.
10. Miscellaneous: Notice given pursuant to any of the provisions of
this Agreement shall be in writing and shall be mailed or delivered (a) to the
Company at its principal executive offices, located at Terrace Tower II, ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Chief Financial Officer,
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ or (b) to you at ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch,
Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, North Tower, 10th Floor, World Financial
Center, New York, New York 10281-1310, attention of: Debt Syndicate, Facsimile:
(212) 449-
15
2234. Any notice under Section 8 hereof may be made by facsimile transmission or
telephone, but if so made shall be subsequently confirmed in writing.
This Agreement has been and is made solely for the benefit of the
Underwriters and the Company and of the controlling persons, directors and
officers referred to in Section 6 hereof, and their respective successors and
assigns, and no other person shall acquire or have any right under or by virtue
of this Agreement. The term "successors and assigns" as used in this Agreement
shall not include a purchaser, as such purchaser, of Offered Securities from any
Underwriter.
This Agreement shall be governed by and construed in accordance with
the internal laws of the State of New York.
16
Please confirm that the foregoing correctly sets forth the agreement
between the Company and the Underwriters.
Very truly yours,
TCI COMMUNICATIONS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President
Confirmed and Accepted, as of the date first above written:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
▇▇▇▇▇▇▇, Sachs & Co.
Salomon Brothers Inc
Bear, ▇▇▇▇▇▇▇ & Co. Inc.
Credit Suisse First Boston Corporation
▇▇▇▇▇▇ Brothers Inc.
BY: ▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Director
17
EXHIBIT A
DEBT SECURITIES
Designation: 71/8% Senior Notes due February 15, 2028
Issue Date: February 24, 1998
Maturity: February 15, 2028
Authorized Denominations: $1,000 and integral multiples thereof
Interest Rate: 71/8%
Interest Payment Dates: February 15 and August 15 (commencing August 15, 1998)
Record Dates: February 1 and August 1
Sinking Fund: None
Optional Redemption: None
A-1
EXHIBIT B
Principal Amount
Underwriters of Offered Securities
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated................................................$72,000,000
▇▇▇▇▇▇▇, Sachs & Co....................................................................................$69,000,000
Salomon Brothers Inc...................................................................................$69,000,000
Bear, ▇▇▇▇▇▇▇ & Co. Inc................................................................................$30,000,000
Credit Suisse First Boston Corporation.................................................................$30,000,000
▇▇▇▇▇▇ Brothers Inc....................................................................................$30,000,000
Total...................................$300,000,000
============
B-1