EXHIBIT 1.1
UNDERWRITING AGREEMENT
6 3/8% Senior Notes due September 15, 1999
September 17, 1997
XXXXXX BROTHERS INC.
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
BEAR, XXXXXXX & CO. INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
SALOMON BROTHERS INC
c/x XXXXXX BROTHERS INC.
3 World Financial Center
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
TCI Communications, Inc. (the "Company") proposes to issue and sell
$350,000,000 principal amount of its 6 3/8% Senior Notes due September 15, 1999
(the "Offered Debt Securities") pursuant to an indenture dated as of December
20, 1995 (as the same may be amended or supplemented, the "Indenture"), with The
Bank of New York, as trustee (the "Trustee"). Each Offered Debt Security will be
issuable in the denominations and shall have the terms set forth in Exhibit A.
The term "Underwriters" as used herein will mean and refer collectively to you
and any substitute underwriter pursuant to Section 9 hereof. The term
"Underwriter" will refer to any of you and any substitute underwriter pursuant
to Section 9 hereof. The Company confirms as follows its agreement with you.
1. Registration Statement and Prospectus: The Company has filed with the
Securities and Exchange Commission (the "Commission"), in accordance with the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission promulgated thereunder (collectively called the "Act"), a shelf
registration statement on Form S-3 (File No. 33-63139), including a prospectus,
relating to debt securities of the Company (the "Debt Securities") issuable from
time to time in one or more series, including the Offered Debt Securities,
shares of Series A TCI Group Common Stock, $1.00 par value per share (the "TCI
Common Stock"), of Tele-Communications, Inc. ("TCI") issuable from time to time
upon conversion of convertible Debt Securities and guarantees of TCI that may be
issued in respect of any Offered Debt Securities that are 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
Debt Securities pursuant to Rule 424 under the Act. As used in this Agreement,
the term "Registration Statement" means such registration statement, including
exhibits and financial statements and schedules and documents incorporated by
reference therein, as amended or supplemented to the date hereof and, in the
case of references to the Registration Statement as of a date subsequent to the
date hereof, as amended or supplemented as of such date. The term "Basic
Prospectus" means the prospectus dated January 17, 1997 filed with the
Commission pursuant to Rule 424 under the Act. The term "Prospectus" means the
Basic Prospectus together with the prospectus supplement specifically relating
to the Offered Debt Securities as filed with the Commission pursuant to Rule 424
under the Act. The term "preliminary prospectus" means any preliminary
prospectus supplement specifically relating to the Offered Debt Securities
together with the Basic Prospectus. Any reference herein to any preliminary
prospectus or the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the Act, as of the date of such preliminary prospectus or
the Prospectus, as the case may be, and any reference herein to any amendment or
supplement to any preliminary prospectus or the Prospectus, except the reference
in Section 4(c), shall be deemed to refer to and include any documents filed
after such date under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and so incorporated by reference.
2. Agreements to Sell and Purchase: The Company agrees to sell to the
Underwriters, and upon the basis of the representations, warranties and
agreements of the Company herein contained and subject to the terms and
conditions of this Agreement the Underwriters agree to purchase from the
Company, severally and not jointly, the principal amount of Offered Debt
Securities set forth opposite each Underwriter's respective name in Exhibit B,
(i) at a purchase price of 99.6415% of the principal amount of the Offered Debt
Securities plus accrued interest, if any, from September 22, 1997. The
obligations of the several Underwriters to purchase Offered Debt Securities
pursuant to this Agreement are hereinafter called their "underwriting
obligations".
With respect to any of the Offered Debt Securities purchased by an
Underwriter hereunder that such Underwriter continues to own or hold at any time
on or after the 90th day following the Closing Date (as defined in Section 3),
such Underwriter agrees that upon receipt of written notice by the Underwriters
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 Regulation M promulgated by the Commission under
the Exchange Act (or any successor or equivalent rule or regulation) during the
distribution of the Offered Debt Securities, such Underwriter will, and will
cause its "affiliated purchasers" (as defined in Rule 100 of said Regulation)
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
Regulation (or any successor or equivalent rule or regulation).
3. Delivery and Payment: Delivery of and payment for the Offered Debt
Securities shall be made at 10:00 A.M., New York time, on September 22, 1997
(such time and date are referred to herein as the "Closing Date"), at the office
of Xxxxx & Xxxxx, L.L.P., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx. The Closing
Date and the place of delivery of and payment for the Offered Debt Securities
may be varied by agreement between you and the Company.
Delivery of the Offered Debt Securities (in definitive form and registered
in such names and in such authorized denominations as you shall request at least
two business days prior to the Closing Date by written notice to the Company)
shall be made to you for the account of the respective Underwriters against
payment by you on behalf of the respective Underwriters of the purchase price
therefor by wire transfer in same day funds. For the purpose of expediting the
checking and packaging of the Offered Debt Securities, the Company agrees to
make the Offered Debt Securities available to you for inspection at least 24
hours prior to the Closing Date or such shorter period of time as you may agree
to.
4. Agreements of the Company: The Company agrees with you as follows:
(a) The Company will notify you promptly, and (if requested by you in
writing) will confirm such advice in writing, (1) of the effectiveness of
any amendment to the Registration Statement and of the filing of any
supplement to the Prospectus, (2) of any comments of the Commission
regarding the Registration Statement or the Prospectus (or any of the
documents incorporated by reference therein) or of any request by the
Commission for amendments or supplements to the Registration Statement or
the Prospectus or for additional information, (3) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the initiation or threatening of any proceedings
for that purpose, (4) of the receipt by the Company of any notification
with respect to the suspension of the qualification of the Offered Debt
Securities for offer or sale in any jurisdiction or the initiation or
threatening of any proceedings for such purpose and (5) of the happening of
any event during the period mentioned in paragraph (d) below which makes
any statement of a material fact made in the Registration
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Statement or the Prospectus (as theretofore amended or supplemented) untrue
or which requires the making of any changes in the Registration Statement
or the Prospectus (as theretofore amended or supplemented) in order to make
the statements therein, in light of the circumstances when the Prospectus
is delivered to a purchaser, not misleading. The Company will use its
reasonable best efforts to prevent the issuance of any order suspending the
effectiveness of the Registration Statement or suspending the qualification
of the Offered Debt Securities for offer or sale in any jurisdiction, and
if any such order is issued, the Company will make every reasonable effort
to obtain the withdrawal of such order at the earliest possible moment.
(b) The Company will furnish to each of you, without charge, one
conformed copy of the Registration Statement and any post-effective
amendment thereto, including all financial statements and schedules,
exhibits and documents incorporated therein by reference (including
exhibits incorporated therein by reference to the extent not previously
furnished to you) and will deliver to you for delivery to each Underwriter
the number of conformed copies of the Registration Statement and any post-
effective amendment thereto, excluding exhibits, as you may request.
(c) The Company will give you advance notice of its intention to file
any amendment or supplement to the Registration Statement or the Prospectus
with respect to the Offered Debt Securities, and will not file any such
amendment or supplement to which you shall reasonably object in writing.
(d) During the period of time that the Prospectus is required by law
to be delivered, the Company will deliver to you for delivery to each
Underwriter, without charge, as many copies of the Prospectus or any
amendment or supplement thereto as you may reasonably request on behalf of
the Underwriters. The Company consents to the use of the Prospectus or any
amendment or supplement thereto by the Underwriters and by all dealers to
whom the Offered Debt Securities may be sold, both in connection with the
offering or sale of the Offered Debt Securities and for such period of time
thereafter as the Prospectus is required by law to be delivered in
connection therewith. If during such period of time any event shall occur
which in the judgment of the Company should be set forth (or incorporated
by reference) in the Prospectus in order to make the statements therein, in
light of the circumstances when the Prospectus is delivered to a purchaser,
not misleading, or if it is necessary to supplement or amend the Prospectus
to comply with law, the Company will forthwith prepare and duly file with
the Commission an appropriate supplement or amendment thereto, and
forthwith file all reports and any definitive proxy statement or
information statement required to be filed by the Company with the
Commission pursuant to Section 13 or 14 of the Exchange Act subsequent to
the date of the Prospectus, and will deliver to you, without charge, such
number of copies thereof as you may reasonably request on behalf of the
Underwriters. If during such period of time any event shall occur which in
your judgment should be so set forth (or incorporated by reference) in the
Prospectus, or which in your judgment makes it necessary to so supplement
or amend the Prospectus, the Company will consult with you concerning the
necessity of filing with the Commission a supplement or an amendment to the
Prospectus or a report pursuant to Section 13 or 14 of the Exchange Act.
(e) Prior to any public offering of the Offered Debt Securities by
the Underwriters, the Company will cooperate with you and counsel retained
by you on behalf of the Underwriters in connection with the registration or
qualification of the Offered Debt Securities for offer and sale under the
securities or Blue Sky laws of, and the determination of the eligibility of
the Offered Debt Securities for investment under the laws of, such
jurisdictions as you request; provided, that in no event shall the Company
be obligated to qualify to do business as a foreign corporation or as a
securities dealer in any jurisdiction where it is not now so qualified, to
conform its capitalization or the composition of its assets to the
securities or Blue Sky laws of any jurisdiction or to take any action which
would subject it to taxation or general service of process in any
jurisdiction where it is not now so subject. The Company will pay all
reasonable fees and expenses (including reasonable counsel fees and
expenses) relating to qualification of the Offered Debt Securities under
such securities or Blue Sky laws and in connection with the determination
of the eligibility of the Offered Debt Securities for investment under the
laws of such jurisdictions as you may designate.
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(f) The Company will make generally available to its security holders
and to you and to each Underwriter who may request the same consolidated
earnings statements (which need not be audited) that satisfy the provisions
of Section 11 (a) of the Act and Rule 158 thereunder.
(g) The Company will pay all expenses in connection with (1) the
preparation, printing and filing of the Registration Statement, any
preliminary prospectus, the Prospectus, any legal investment memorandum and
Blue Sky memorandum as contemplated by Section 4(e), (2) the preparation,
issuance and delivery of the Offered Debt Securities (other than transfer
taxes) and the execution and delivery of the Indenture, (3) the printing of
any Dealer Agreement, (4) furnishing such copies of the Registration
Statement, the Prospectus and any preliminary prospectus, and all
amendments and supplements thereto, as may be requested for use in
connection with the offering and sale of the Offered Debt Securities by
dealers to whom Offered Debt Securities may be sold, and (5) any fees paid
to rating agencies, if any, selected by the Company in connection with the
rating of the Offered Debt Securities.
(h) If this Agreement is terminated by you because any condition to
the obligations of you and the Underwriters set forth in Section 7 hereof
is not satisfied or because of any failure or refusal on the part of the
Company to comply with the terms hereof or if for any reason the Company
shall be unable to perform its obligations hereunder, the Company will
reimburse you on behalf of the Underwriters for all out-of-pocket expenses
(including the fees and expenses of counsel retained by you on behalf of
the Underwriters) reasonably incurred by you in connection herewith. The
Company will not in any event be liable to you or any of the Underwriters
for damages on account of loss of anticipated profits.
(i) From the date hereof to and including the Closing Date, the
Company will not offer or sell, or contract to sell, any debt securities of
the Company with a maturity of more than one year, including additional
Offered Debt Securities, pursuant to a public offering without your prior
written consent.
5. Representations and Warranties of the Company: The Company represents
and warrants to each Underwriter that:
(a) the documents incorporated by reference in the Registration
Statement and the Prospectus, when they were filed (or, if an amendment
with respect to any such document was filed, when such amendment was filed)
with the Commission, conformed in all material respects to the requirements
of the Exchange Act and the rules and regulations of the Commission
promulgated thereunder, and any further documents so filed and incorporated
by reference will, when they are filed with the Commission, conform in all
material respects to the requirements of the Exchange Act and the rules and
regulations of the Commission promulgated thereunder, none of such
documents, when it was filed (or, if an amendment with respect to any such
document was filed, when such amendment was filed), contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading; and no
such further document, when it is filed, will contain an untrue statement
of a material fact or will omit to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they are made, not misleading;
(b) the Registration Statement, when declared effective by the
Commission, complied in all material respects with the requirements of the
Act; each preliminary prospectus, if any, relating to the Offered Debt
Securities, filed pursuant to Rule 424 under the Act, will comply when so
filed in all material respects with the Act; and when the Prospectus is
first filed with the Commission pursuant to Rule 424 and as of the Closing
Date, the Registration Statement and the Prospectus (as amended or
supplemented, if applicable) will comply in all material respects with the
requirements of the Act and the Indenture will comply in all material
respects with the requirements of the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"). When it was declared effective by the
Commission, the Registration Statement
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did not, and as of the date the Prospectus is first filed with the
Commission pursuant to Rule 424 and as of the Closing Date the Registration
Statement (as amended or supplemented, if applicable) will not, contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading. When the Prospectus is first filed with the Commission
pursuant to Rule 424 and as of the Closing Date, the Prospectus (as amended
or supplemented, if applicable) will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. Notwithstanding
the foregoing, this representation and warranty does not apply to
statements or omissions in the Registration Statement or the Prospectus or
any preliminary prospectus made in reliance upon information furnished to
the Company in writing by the Underwriters expressly for use therein or to
that part of the Registration Statement which consists of the Statements of
Eligibility and Qualification on Form T-1 under the Trust Indenture Act of
the trustees for the Debt Securities;
(c) the Offered Debt Securities and the Indenture have been duly
authorized by the Company and will conform to the descriptions thereof in
the Prospectus;
(d) the issuance and sale of the Offered Debt Securities and the
fulfillment of the terms of this Agreement will not result in a breach of
any of the terms or provisions of, or constitute a default under, the
Company's charter or by-laws or any indenture, mortgage, deed of trust or
other material agreement or instrument to which the Company or any of its
significant subsidiaries (as such term is defined in Rule 1-02(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 any Underwriter or by any dealers that participate in
the distribution thereof, the Company will comply with all requirements
under the Exchange Act relating to the timely filing with the Commission of
its reports pursuant to Section 13 of the Exchange Act and of its proxy
statements pursuant to Section 14 of the Exchange Act; and
(g) except to the extent set forth in the Prospectus, the Company has
not received any notice of, nor does it have any actual knowledge of, any
failure by it or any of its significant subsidiaries to be in substantial
compliance with all existing statutes and regulations applicable to it or
such subsidiaries, which failure would materially and adversely affect the
conduct of the business of the Company and its subsidiaries, considered as
a whole.
6. Indemnification: The Company agrees to indemnify and hold harmless
each Underwriter, and each person, if any, who controls each Underwriter within
the meaning of either Section 15 of the Act or Section 20 of the Exchange Act,
from and against any and all losses, claims, damages, liabilities and expenses
(including reasonable costs of investigation) arising out of or based upon any
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus or in any amendment or supplement
thereto or in any preliminary prospectus, or arising out of or based upon any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, except insofar as such
losses, claims, damages, liabilities or expenses arise out of or are based upon
any such untrue statement or omission or allegation thereof based upon
information furnished in writing to the Company by an 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,
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damages or liabilities alleged by any person who purchased Offered Debt
Securities from such Underwriter if the untrue statement, omission or allegation
thereof upon which such losses, claims, damages or liabilities are based was
made in: (i) any preliminary prospectus, if a copy of the Prospectus (as then
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto) was not sent or given by or on behalf of such Underwriter
to such person at or prior to the written confirmation of the sale of Offered
Debt Securities to such person, and if the Prospectus (as so amended or
supplemented) corrected the untrue statement or omission giving rise to such
loss, claim, damage or liability; (ii) any Prospectus used by such Underwriter
or any person who controls such Underwriter, after such time as the Company
advised the Underwriters that the filing of a post-effective amendment or
supplement thereto was required, except the Prospectus as so amended or
supplemented; or (iii) any Prospectus used after such time as the obligation of
the Company to keep the same current and effective has expired. This indemnity
will be in addition to any liability which the Company may otherwise have. All
fees and expenses which are reimbursable pursuant to this Section 6 shall be
reimbursed as they are incurred.
If any action or proceeding (including any governmental investigation)
shall be brought or asserted against an Underwriter or any person controlling an
Underwriter in respect of which indemnity may be sought from the Company, such
Underwriter or such controlling person shall promptly notify the Company in
writing, and the Company shall assume the defense thereof, including the
employment of counsel reasonably satisfactory to you and the payment of all
expenses. Any omission so to notify the Company shall not, however, relieve the
Company from any liability which it may have to any indemnified party otherwise
than under this Section 6. An Underwriter or any person controlling an
Underwriter shall have the right to employ separate counsel in any such action
or proceeding and to participate in the defense thereof, but the fees and
expenses of such separate counsel shall be such Underwriter's expense or the
expense of such controlling person unless (a) the Company has agreed to pay such
fees and expenses or (b) the Company shall have failed to assume the defense of
such action or proceeding and employ counsel reasonably satisfactory to you in
any such action or proceeding or (c) the named parties to any such action or
proceeding (including any impleaded parties) include both such Underwriter or
such controlling person and the Company, and such Underwriter or such
controlling person shall have been advised by your counsel that there may be a
conflict of interest between such Underwriter or such controlling person and the
Company in the conduct of the defense of such action (in which case, if such
Underwriter or such controlling person notifies the Company in writing that it
elects to employ separate counsel at the expense of the Company, the Company
shall not have the right to assume the defense of such action or proceeding on
behalf of such Underwriter or such controlling person), it being understood,
however, that the Company shall not, in connection with any one such action or
proceeding or separate but substantially similar or related actions or
proceedings arising out of the same general allegations or circumstances, be
liable for the reasonable fees and expenses of more than one separate firm of
attorneys (unless the members of such firm are not admitted to practice in a
jurisdiction where an action is pending, in which case the Company shall pay the
reasonable fees and expenses of one additional firm of attorneys to act as local
counsel in such jurisdiction, provided the services of such counsel are
substantially limited to that of appearing as attorneys of record) at any time
for all indemnified parties, which firm shall be designated in writing by you.
The Company shall not be liable for any settlement of any such action or
proceeding effected without its written consent, but if settled with its written
consent, or if there be a final judgment for the plaintiff in any such action or
proceeding, the Company agrees to indemnify and hold harmless each Underwriter
and any such controlling person from and against any loss or liability by reason
of such settlement or judgment.
Each Underwriter severally agrees to indemnify and hold harmless the
Company, its directors and each of its officers, and each person, if any, who
controls the Company within the meaning of either Section 15 of the Act or
Section 20 of the Exchange Act, to the same extent as the foregoing indemnity
from the Company to each Underwriter, but only with respect to information
furnished in writing by such Underwriter expressly for use in the Registration
Statement, the Prospectus, or any amendment or supplement thereto, or any
preliminary prospectus. In case any action or proceeding shall be brought
against the Company or its directors or officers or any such controlling person,
in respect of which indemnity may be sought against one or more of the several
Underwriters, such Underwriters shall have the rights and duties given to the
Company, and the Company or its directors or
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officers or such controlling person shall have the rights and duties given to
you and the several Underwriters, by the preceding paragraph.
If the indemnification provided for in this Section 6 is unavailable to an
indemnified party under the first or third paragraph hereof in respect of any
losses, claims, damages or liabilities referred to therein (other than by reason
of such indemnified party's failure to comply with the first sentence of the
second paragraph of this Section 6), then each applicable indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the amount paid
or payable by such indemnified party as a result of such losses, claims, damages
or liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the
other hand from the offering of the Offered Debt Securities or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company on
the one hand and of the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Underwriters
on the other in connection with the offering of the Offered Debt Securities
shall be deemed to be in the same proportion as the total net proceeds from the
offering of the Offered Debt Securities received by the Company bear to the
total underwriting discounts received by the Underwriters in respect thereof.
The relative fault of the Company on the one hand and of the Underwriters on the
other shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
or by the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The amount paid or payable by a party as a result of the losses, claims, damages
and liabilities referred to above shall be deemed to include, subject to the
limitations set forth in the second paragraph of this Section 6, any legal or
other fees or expenses reasonably incurred by such party in connection with
investigating or defending any action or claim.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 6 were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 6, the Underwriters shall not be
required to contribute any amount in excess of the amount by which the total
price at which the Offered Debt Securities were offered to the public exceeds
the amount of any damages which the Underwriters have otherwise been required to
pay by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11 (f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
The indemnity and contribution agreements contained in this Section 6 and
the representations and warranties of the Company contained in this Agreement
shall remain operative and in full force and effect regardless of (a) any
investigation made by or on behalf of any Underwriter, by or on behalf of any
person controlling any Underwriter or by or on behalf of the Company, (b)
acceptance of any of the Offered Debt Securities and payment therefor or (c) any
termination of this Agreement.
7. Conditions of the Obligations of You and the Underwriters: The
obligations of you and the Underwriters hereunder are subject to the following
conditions:
(a) at the Closing Date, (i) no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall be pending or threatened by the
Commission; and the Underwriters 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,
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and (ii) the rating assigned by either Duff & Xxxxxx Credit Rating Co. or
its successor or by Xxxxx'x 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 Underwriters shall have received opinions, dated the Closing
Date and reasonably satisfactory to counsel retained by the Underwriters,
(A) from Messrs. Xxxx, Raywid & Xxxxxxxxx, L.L.P. or such other special
communications counsel for the Company as may be reasonably satisfactory to
the Underwriters, (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 Debt Securities as contemplated by this Agreement;
(ii) the Company and each of its significant subsidiaries is duly
qualified as a foreign corporation and is in good standing in each
jurisdiction in which the failure to so qualify would, in the
aggregate, have a material adverse effect upon the financial
condition, results of operations, business or properties of the
Company and its subsidiaries taken as a whole;
(iii) all corporate proceedings legally required in connection with
the authorization and issuance of the Offered Debt Securities and the
sale of the Offered Debt Securities by the Company in accordance with
the terms of this Agreement have been taken;
(iv) to the best knowledge of such counsel, there is no legal or
governmental proceeding pending or threatened against the Company or
any of its subsidiaries which is required to be disclosed in the
Prospectus (as amended or supplemented, if applicable) and is not so
disclosed and correctly summarized therein;
(v) to the best knowledge of such counsel, there is no contract
or other document known to such counsel of a character required to be
described in the Prospectus (as amended or supplemented, if
applicable) or to be filed as an exhibit to the Registration Statement
(or to a document incorporated by reference therein) that is not
described or filed as required;
(vi) the execution and delivery of this Agreement and the
Indenture, the issuance of the Offered Debt Securities and the
fulfillment of the terms herein and therein contained do not conflict
with, or result in a breach of, or constitute a default under, the
charter or by-laws of the Company or, to the best knowledge of such
counsel, conflict in any material respect with, or result in a
material breach of or constitute a material default under any material
agreement, indenture or other instrument known to such counsel to
which the Company or any of its significant subsidiaries is a party or
by which it is bound, or result in a violation of any law,
administrative regulation or court or governmental decree known to
such counsel applicable to the Company or any of its subsidiaries,
except that such counsel need not express any opinion with respect to
(i) matters opined upon by special communications counsel and Messrs.
Xxxxxxx & Xxxxxx 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
8
of the date the Prospectus was first filed with the Commission
pursuant to Rule 424, or contains, as of the Closing Date, any untrue
statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements
therein (in the case of the Prospectus as amended or supplemented, if
applicable, in light of the circumstances under which they were made,)
not misleading.
(C) from Messrs. Xxxxxxx & Xxxxxx L.L.C., special counsel to the
Company, to the following effect and covering such additional matters as
the Underwriters 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 Xxxxx & Xxxxx, L.L.P., special counsel to the Company, or
such other counsel to the Company as may be reasonably satisfactory to the
Underwriters, to the following effect and covering such additional matters
as the Underwriters may reasonably request:
(i) this Agreement and the Indenture have been duly authorized,
executed and delivered by the Company; and the Indenture is a legal,
valid and binding agreement of the Company enforceable in accordance
with its terms, except (A) as such enforceability may be limited by
bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium and other laws affecting creditors' rights generally, and
(B) that the remedy of specific performance and injunctive and other
forms of equitable relief are subject to certain equitable defenses
and to the discretion of the court before which any proceeding
therefor may be brought;
(ii) the Indenture has been duly qualified under, and complies in
all material respects with the requirements of, the Trust Indenture
Act;
(iii) the Offered Debt Securities, when executed and authenticated
in accordance with the terms of the Indenture and delivered to and
paid for by the Underwriters on behalf of the Underwriters in
accordance with this Agreement, will be legal, valid and binding
obligations of the Company entitled to the benefits of the Indenture
and enforceable in accordance with their terms, except (A) as such
enforceability may be limited by bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium and other laws
affecting creditors' rights generally, and (B) that the remedy of
specific performance and injunctive and other forms of equitable
relief are subject to certain equitable defenses and to the discretion
of the court before which any proceeding therefor may be brought;
(iv) the Registration Statement is effective under the Act and, to
the best knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceeding for that purpose is pending or threatened by the
Commission; and
(v) the Offered Debt Securities and the Indenture conform in all
material respects as to legal matters to the descriptions thereof in
the Prospectus.
In addition, such counsel shall state that: "The Registration
Statement and the Prospectus, as amended or supplemented, if
applicable (except as to (x) the financial statements and schedules
9
and any other financial and statistical data contained or incorporated
by reference therein and (y) the documents incorporated or deemed to
be incorporated by reference therein, as to which no opinion is
expressed), complied, as of the date the Prospectus was first filed
with the Commission pursuant to Rule 424, and comply, as of the date
hereof, as to form in all material respects with the requirements of
the Act and the rules and regulations of the Commission under the Act
(the "Rules"). In passing upon the form of such documents, we have
necessarily assumed the correctness and completeness of the statements
made or included therein by the Company and take no responsibility for
the accuracy, completeness or fairness of the statements contained
therein except insofar as such statements relate to the description of
the Offered Debt Securities and the Indenture or relate to us.
However, in connection with the preparation of the Registration
Statement and the Prospectus, we had conferences with certain officers
and other representatives of the Company, and our examination of the
Registration Statement and the Prospectus and our discussions in such
conferences did not disclose to us any information (relying as to the
materiality of any such information primarily upon officers and other
representatives of the Company) which gave us reason to believe that
either the Registration Statement or the Prospectus, as amended or
supplemented, if applicable (except as to (x) the financial statements
and schedules and any other financial and statistical data contained
or incorporated by reference in the Registration Statement or
Prospectus and (y) the documents incorporated or deemed to be
incorporated by reference therein, as to which no opinion is
expressed), contained, as of the date the Prospectus was first filed
with the Commission pursuant to Rule 424, or contains, as of the date
hereof, any untrue statement of a material fact or omitted or omits to
state any material fact required to be stated therein or necessary to
make the statements therein (in the case of the Prospectus, as
amended, or supplemented, if applicable, in light of the circumstances
under which they were made) not misleading."
In giving such opinions, such counsel may rely (x) as to matters
of fact, to the extent they deem proper, upon certificates of officers
of the Company, public officials and others, and (y) as to matters of
law if other than the United States or Colorado (in the case of
Messrs. Xxxxxxx & Xxxxxx L.L.C. and General Counsel of the Company) or
New York (in the case of Xxxxx & Xxxxx, L.L.P.), on the opinions of
local counsel retained by them or the Company, provided that such
counsel are satisfactory to the Underwriters and counsel retained by
the Underwriters;
(c) the Underwriters shall have received on the Closing Date from
Messrs. Xxxxx & Wood LLP, counsel retained by the Underwriters, an opinion
to the effect set forth in clauses (D)(i) and (iii) and to the effect that
the Registration Statement and the Prospectus, as amended or supplemented,
if applicable, (except as to (x) the financial statements and schedules and
any other financial and statistical data contained or incorporated by
reference therein, and (y) the documents incorporated or deemed to be
incorporated by reference therein, as to which no opinion need be
expressed) comply as to form in all material respects with the Act. In
addition, the Underwriters shall have received on the Closing Date from
Messrs. Xxxxx & Xxxx LLP, or from other counsel acceptable to the
Underwriters, 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 Underwriters shall have received a letter
addressed to the Underwriters from KPMG Peat Marwick LLP, independent
auditors for the Company, reasonably satisfactory to the Underwriters;
(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
10
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 Underwriters, is so material and adverse that it
would be impracticable to proceed with the public offering or delivery of
the Offered Debt Securities on the terms and in the manner contemplated by
the Prospectus.
8. Termination of Agreement: The obligation of the Underwriters to
purchase the Offered Debt Securities may be terminated at any time prior to the
Closing Date by notice to the Company from the Underwriters, without liability
on the part of the Underwriters to the Company, if, on or prior to such date,
(i) additional material governmental restrictions, not in force and effect on
the date of this Agreement, shall have been imposed upon trading in securities
generally or minimum or maximum prices shall have been generally established on
the New York Stock Exchange or on the American Stock Exchange, or trading in
securities generally shall have been suspended on either such Exchange or
trading in the common stock or debt securities of the Company in the over-the-
counter market shall have been suspended or a general banking moratorium shall
have been established by Federal or New York authorities, or (ii) a war
involving the United States of America or other national calamity shall have
occurred or shall have accelerated to such an extent as to affect adversely the
marketability of the Offered Debt Securities.
9. Default by One or More of the Underwriters: If one or more of the
Underwriters shall fail on the Closing Date to purchase the Offered Debt
Securities that it or they are obligated to purchase hereunder (the "Defaulted
Debt Securities"), the Underwriters shall have the right, within 24 hours
thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any substitute underwriters, to purchase all, but not less than
all, of the Defaulted Debt Securities in such amounts as may be approved by the
Underwriters and upon the terms herein set forth; if, however, the Underwriters
have not completed such arrangements within such 24-hour period, then:
(a) if the principal amount of Defaulted Debt Securities does not
exceed 10% of the aggregate principal amount of Offered Debt Securities,
the non-defaulting Underwriters shall be obligated to purchase the full
amount thereof in the proportions that their respective underwriting
obligations hereunder bear to the underwriting obligations of all non-
defaulting Underwriters, or
(b) if the principal amount of Defaulted Debt Securities exceeds 10%
of the aggregate principal amount of Offered Debt Securities, the Company
shall be entitled for an additional 24-hour period to find one or more
substitute underwriters satisfactory to the Underwriters in their
reasonable discretion to purchase such Defaulted Debt 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 Debt Securities.
If the principal amount of Defaulted Debt Securities exceeds 10% of the
aggregate principal amount of Offered Debt 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 Debt Securities, this
Agreement shall terminate without liability on the part of any non-defaulting
Underwriter to the Company except as provided in Section 6.
11
No action taken pursuant to this Section 9 shall relieve any defaulting
Underwriter from liability in respect of its default.
A substitute underwriter hereunder shall be an Underwriter for all purposes
of this Agreement.
10. Miscellaneous: Notice given pursuant to any of the provisions of this
Agreement shall be in writing and shall be mailed or delivered (a) to the
Company at its office, Terrace Tower II, 0000 XXX Xxxxxxx, Xxxxxxxxx, Xxxxxxxx
00000-0000, attention: Xxxxxxx X. Xxxxxxxxx, Senior Executive Vice President-
Finance, or (b) to you at Xxxxxx Brothers Inc., 3 World Financial Center, 000
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, attention: Xxxxx Xxxxxxxx. Any notice
under Section 8 hereof may be made by telex or telephone, but if so made shall
be subsequently confirmed in writing.
This Agreement has been and is made solely for the benefit of the
Underwriters and the Company and of the controlling persons, directors and
officers referred to in Section 6 hereof, and their respective successors and
assigns, and no other person shall acquire or have any right under or by virtue
of this Agreement. The term "successors and assigns" as used in this Agreement
shall not include a purchaser, as such purchaser, of Offered Debt Securities
from any Underwriter.
This Agreement shall be governed by and construed in accordance with the
internal laws of the State of New York.
12
Please confirm that the foregoing correctly sets forth the agreement
between the Company and you and the Underwriters.
Very truly yours,
TCI COMMUNICATIONS, INC.
By:......./s/ Xxxxxxx X. Xxxxxxxxx.............
Name: Xxxxxxx X. Xxxxxxxxx
Title: Senior Vice President - Finance
Confirmed and Accepted,
as of the date first above written:
XXXXXX BROTHERS INC.
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
BEAR, XXXXXXX & CO. INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
SALOMON BROTHERS INC
By: XXXXXX BROTHERS INC.
By: .../s/ Xxxx Xxxxxxx.....................
Title: Managing Director
13
EXHIBIT A
6 3/8% SENIOR NOTES DUE SEPTEMBER 15, 1999
Designation: Senior
Dated Date: September 22, 1997
Maturity: September 15, 1999
Authorized Denominations: $1,000 principal amount and any integral
multiple thereof
Interest rate: 6 3/8%
Interest Payment Dates: March 15 and September 15, commencing March 15,
1998
Record Dates: March 1 and September 1
Sinking Fund: None
Optional Redemption: None
A-1
EXHIBIT B
Underwriter Principal Amount of Notes
----------- -------------------------
Xxxxxx Brothers Inc................................. $ 70,000,000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated.. 70,000,000
Bear, Xxxxxxx & Co. Inc............................. 70,000,000
Credit Suisse First Boston Corporation.............. 70,000,000
Salomon Brothers Inc................................ 70,000,000
------------
Total................................ $350,000,000
============
