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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event Reported) May 10, 1996
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COX COMMUNICATIONS, INC.
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(Exact name of Registrant as specified in its charter)
Delaware
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(State or other jurisdiction of incorporation or organization)
1-06590 58-2112288
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(Commission File (I.R.S. Employer
Number) Identification Number)
1400 Lake Hearn Drive
Atlanta, Georgia 30319 30319
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(Address of principal (Zip Code)
executive officer)
Registrant's telephone number, including area code 404-843-5000
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(Former name or former address, if changed since last report)
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ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS.
The exhibits attached hereto are being filed in connection with the
Registration Statement (Reg. No. 333-3766) on Form S-3 filed with the Securities
and Exchange Commission under which Cox Communications, Inc. may from time to
time offer and issue medium-term notes for up to a maximum aggregate amount of
$750 million.
(a) Financial Statements
None.
(b) Pro Forma Financial Information
None.
1.1 U.S. Distribution Agreement among Morgan Stanley & Co.
Incorporated, Deutsche Morgan Grenfell/C.J. Lawrence Inc., Merrill
Lynch, Pierce, Fenner & Smith Incorporated, NationsBanc Capital
Markets, Inc. and Cox Communications, Inc., dated as of May 10,
1996.
4.1 Form of Fixed Rate Note
4.2 Form of Floating Rate Note
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Dated: August 9, 1996 COX COMMUNICATIONS, INC.
By: /s/ Jimmy W. Hayes
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Jimmy W. Hayes
Senior Vice President, Finance
and Chief Financial Officer
-2-
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COX COMMUNICATIONS
$750,000,000
Medium-Term Notes
Due More Than Nine Months from Date of Issue
U.S. DISTRIBUTION AGREEMENT
May 10, 1996
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Deutsche Morgan Grenfell/C.J. Lawrence Inc.
31 West 52nd Street
New York, New York 10019
Merrill Lynch, Pierce, Fenner & Smith Incorporated
North Tower
World Financial Center
New York, New York 10281-1307
NationsBanc Capital Markets, Inc.
100 North Tryon Street
Charlotte, North Carolina 28255
Dear Sirs:
COX COMMUNICATIONS, INC., a Delaware corporation (the
"Company"), confirms its agreement with each of you with respect to the issue
and sale from time to time by the Company of up to 750,000,000 (or the
equivalent thereof in one or more foreign currencies or composite currencies)
aggregate initial public offering price of its medium-term
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notes due more than nine months from date of issue (the "Notes"). The Notes
will be issued under an Indenture dated as of June 27, 1995 (the "Indenture"),
between the Company and The Bank of New York, as Trustee (the "Trustee"), and
will have the maturities, interest rates, redemption provisions, if any, and
other terms as set forth in supplements to the Basic Prospectus referred to
below.
The Company hereby appoints Morgan Stanley & Co. Incorporated
("Morgan Stanley"), Deutsche Morgan Grenfell/C.J. Lawrence Inc., Merrill Lynch,
Pierce, Fenner & Smith Incorporated and NationsBanc Capital Markets, Inc.
(individually, an "Agent" and collectively, the "Agents") as its exclusive
agents, subject to Section 11, for the purpose of soliciting and receiving
offers to purchase Notes from the Company by others and, on the basis of the
representations and warranties herein contained, but subject to the terms and
conditions herein set forth, each Agent agrees to use reasonable efforts to
solicit and receive offers to purchase Notes upon terms acceptable to the
Company at such time and in such amounts as the Company shall from time to time
specify. In addition, any Agent may also purchase Notes as principal pursuant
to the terms of a terms agreement relating to such sale (a "Terms Agreement")
in accordance with the provisions of Section 2(b) hereof.
The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement, including a prospectus,
relating to the Notes. Such registration statement, including the exhibits
thereto, as amended at the Commencement Date (as hereinafter defined), is
hereinafter referred to as the "Registration Statement." The Company proposes
to file with the Commission from time to time, pursuant to Rule 424 under the
Securities Act of 1933, as amended (the "Securities Act"), supplements to the
prospectus included in the Registration Statement that will describe certain
terms of the Notes. The prospectus in the form in which it appears in the
Registration Statement is hereinafter referred to as the "Basic Prospectus."
The term "Prospectus" means the Basic
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Prospectus together with the prospectus supplement or supplements (each a
"Prospectus Supplement") specifically relating to Notes, as filed with, or
transmitted for filing to, the Commission pursuant to Rule 424. As used
herein, the term "Basic Prospectus" and "Prospectus" shall include in each case
the documents, if any, incorporated by reference therein. The terms
"supplement," "amendment" and "amend" as used herein shall include all
documents deemed to be incorporated by reference in the Prospectus that are
filed subsequent to the date of the Basic Prospectus by the Company with the
Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
1. Representations and Warranties. The Company represents and
warrants to, and agrees with, each Agent as of the Commencement Date, as of each
date on which an Agent solicits offers to purchase Notes, as of each date on
which the Company accepts an offer to purchase Notes (including any purchase by
an Agent pursuant to a Terms Agreement), as of each date the Company issues and
delivers Notes and as of each date the Registration Statement or the Basic
Prospectus is amended or supplemented, as follows (it being understood that such
representations, warranties and agreements shall be deemed to relate to the
Registration Statement, the Basic Prospectus and the Prospectus, each as amended
or supplemented to each such date):
(a) The Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement is in effect,
and no proceedings for such purposes are pending before or threatened by the
Commission.
(b) (i) Each document, if any, filed or to be filed pursuant
to the Exchange Act and incorporated by reference in the Prospectus complied or
will comply when so filed in all material respects with the Exchange Act and the
applicable rules and regulations of the Commission thereunder, (ii) each part of
the Registration Statement, when such part became effective, did not contain and
each
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such part, as amended or supplemented, if applicable, will not contain any
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, (iii) the Registration Statement and the Prospectus comply and, as
amended or supplemented, if applicable, will comply in all material respects
with the Securities Act and the applicable rules and regulations of the
Commission thereunder and (iv) the Prospectus does not contain and, as amended
or supplemented, if applicable, will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, except that (1) the representations and warranties set forth in
this Section 1(b) do not apply (A) to the statements in or omissions from the
Registration Statement or the Prospectus based upon information relating to an
Agent furnished to the Company in writing by such Agent expressly for use
therein or (B) to that part of the Registration Statement that constitutes the
Statement of Eligibility (Form T-1) under the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"), of the Trustee and (2) the representations
and warranties set forth in clauses (iii) and (iv) above, when made as of the
Commencement Date or as of any date on which an Agent solicits offers to
purchase Notes, shall be deemed not to cover information concerning an offering
of particular Notes to the extent such information will be set forth in a
supplement to the Basic Prospectus.
(c) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware, with
power and authority (corporate and other) to own its properties and conduct its
business as described in the Prospectus; and the Company is duly qualified to
do business as a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or the conduct of its
business requires such qualification, other than where the failure to so
qualify would not, individually or in the aggregate, have a
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material adverse effect on the Company and its subsidiaries taken as a whole.
(d) Each subsidiary of the Company has been duly incorporated
and is an existing corporation in good standing under the laws of the
jurisdiction of its incorporation, with power and authority (corporate and
other) to own its properties and conduct its business as described in the
Prospectus; and each subsidiary of the Company is duly qualified to do business
as a foreign corporation in good standing in all other jurisdictions in which
its ownership or lease of property or the conduct of its business requires such
qualification, other than where the failure to so qualify would not,
individually or in the aggregate, have a material adverse effect on the Company
and its subsidiaries taken as a whole; all of the issued and outstanding
capital stock of each subsidiary of the Company has been duly authorized and
validly issued and is fully paid and nonassessable; and the capital stock of
each subsidiary owned by the Company, directly or through subsidiaries, is
owned free from liens, encumbrances and defects.
(e) The Indenture has been duly authorized, executed and
delivered and has been duly qualified under the Trust Indenture Act; the Notes
have been duly authorized; and when the Notes are delivered and paid for by the
purchasers thereof, such Notes will have been duly executed, authenticated,
issued and delivered and will conform to the description thereof contained in
the Prospectus and will be entitled to the benefits of the Indenture and such
Notes will constitute valid and legally binding obligations of the Company,
enforceable in accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general equity
principles.
(f) No consent, approval, authorization, or order of, or
filing with, any governmental agency or body or any court is required for the
consummation of the transactions
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contemplated by this Agreement and any applicable Written Terms Agreement (as
hereinafter defined), in connection with the issuance and sale of the Notes by
the Company, except such as have been obtained and made under the Act and the
Trust Indenture Act and such as may be required under state securities laws or
the laws of a foreign jurisdiction.
(g) The execution, delivery and performance of the Indenture,
this Agreement and any applicable Written Terms Agreement (as hereinafter
defined), and the issuance and sale of the Notes and compliance with the terms
and provisions thereof will not result in a breach or violation of any of the
terms and provisions of, or constitute a default under, any statute, any rule,
regulation or order of any governmental agency or body or any court, domestic
or foreign, having jurisdiction over the Company or any subsidiary of the
Company or any of their properties, or any agreement or instrument to which the
Company or any such subsidiary is a party or by which the Company or any such
subsidiary is bound or to which any of the properties of the Company or any
such subsidiary is subject, or the charter or by-laws of the Company or any
such subsidiary, and the Company has full power and authority to authorize,
issue and sell the Notes as contemplated by this Agreement and any applicable
Written Terms Agreement.
(h) Each of this Agreement and any applicable Written Terms
Agreement has been duly authorized, executed and delivered by the Company.
(i) Except as disclosed in the Prospectus, the Company and
its subsidiaries have good and marketable title to all material real properties
and all other properties and assets owned by them, in each case free from
liens, encumbrances and defects that would materially affect the value thereof
or materially interfere with the use made or presently contemplated to be made
thereof by them; and except as disclosed in the Prospectus, the Company and its
subsidiaries hold any leased real or personal property under valid and
enforceable leases with no exceptions that are
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material or would materially interfere with the use made or presently
contemplated to be made thereof by them.
(j) The Company and its subsidiaries possess adequate
certificates, authorities or permits issued by appropriate governmental
agencies or bodies necessary to conduct the business now operated by them other
than those the absence of which would not, individually or in the aggregate,
have a material adverse effect on the Company and its subsidiaries taken as a
whole and have not received any notice of proceedings relating to the
revocation or modification of any such certificate, authority or permit that,
if determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a material adverse effect on the Company
and its subsidiaries taken as a whole.
(k) No labor dispute with the employees of the Company or any
subsidiary exists or, to the knowledge of the Company, is imminent that would,
individually or in the aggregate, have a material adverse effect on the Company
and its subsidiaries taken as a whole.
(l) The Company and its subsidiaries own, possess or can
acquire on reasonable terms, adequate trademarks, trade names and other rights
to inventions, know-how, patents, copyrights, confidential information and
other intellectual property (collectively, "intellectual property rights")
necessary to conduct the business now operated by them, other than those the
absence of which would not, individually or in the aggregate, have a material
adverse effect on the Company and its subsidiaries taken as a whole, or
presently employed by them, and have not received any notice of infringement of
or conflict with asserted rights of others with respect to any intellectual
property rights that, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a material adverse
effect on the Company and its subsidiaries taken as a whole.
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(m) Except as disclosed in the Prospectus, neither the
Company nor any of its subsidiaries is in violation of any statute, any rule,
regulation, decision or order of any governmental agency or body or any court,
domestic or foreign, having jurisdiction over the Company or any of its
subsidiaries relating to the use, disposal or release of hazardous or toxic
substances or relating to the protection or restoration of the environment or
human exposure to hazardous or toxic substances (collectively, "environmental
laws"), owns or operates any real property contaminated with any substance that
is subject to any environmental laws, is liable for any off-site disposal or
contamination pursuant to any environmental laws, or is subject to any claim
relating to any environmental laws, which violation, contamination, liability
or claim would individually or in the aggregate have a material adverse effect
on the Company and its subsidiaries taken as a whole; and the Company is not
aware of any pending investigation which might lead to such a claim.
(n) Except as disclosed in the Prospectus, there are no
pending actions, suits or proceedings against or affecting the Company, any of
its subsidiaries or any of their respective properties that, if determined
adversely to the Company or any of its subsidiaries, would individually or in
the aggregate have a material adverse effect on the condition (financial or
other), business, prospects or results of operations of the Company and its
subsidiaries taken as a whole, or would materially and adversely affect the
ability of the Company to perform its obligations under the Indenture or this
Agreement, or which are otherwise material in the context of the sale of the
Notes; and, to the Company's knowledge, no such actions, suits or proceedings
are threatened.
(o) The financial statements included in each Registration
Statement and the Prospectus present fairly the financial position of the
Company and its consolidated subsidiaries as of the dates shown and their
results of operations and cash flows for the periods shown, and such
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financial statements have been prepared in conformity with the generally
accepted accounting principles in the United States applied on a consistent
basis, except as otherwise stated therein; and the schedules included in each
Registration Statement present fairly in all material respects the information
required to be stated therein.
(p) Except as disclosed in the Prospectus, since the date of
the latest audited financial statements included in the Prospectus there has
been no material adverse change, nor any development or event reasonably likely
to result in a material adverse change, in the condition (financial or other),
business, properties or results of operations of the Company and its
subsidiaries taken as a whole.
(q) 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 (as defined in
Rule 1-02(w) of Regulation S-X promulgated under the Act) 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 Company
and its subsidiaries taken as a whole.
(r) The Company is not an "investment company" or an entity
"controlled" by an "investment company" as such terms are defined in the
Investment Company Act of 1940, as amended.
(s) The Company has complied with all provisions of Section
517.075, Florida Statutes relating to doing business with the Government of
Cuba or with any person or affiliate located in Cuba.
Notwithstanding the foregoing, the representations and
warranties set forth in Section 1(b)(iii) and (iv), (e) (except as to due
authorization of the Notes) and (g), when made as of the Commencement Date, or
as of any date on which an Agent solicits offers to purchase Notes, with
respect to
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any Notes the payments of principal or interest on which will be determined by
reference to one or more currency exchange rates, commodity prices, equity
indices or other factors, shall be deemed not to address the application of the
Commodity Exchange Act, as amended, or the rules, regulations or
interpretations of the Commodity Futures Trading Commission.
2. Solicitations as Agent; Purchases as Principal.
(a) Solicitations as Agent. In connection with an Agent's
actions as agent hereunder, such Agent agrees to use its reasonable best efforts
to solicit offers to purchase Notes upon the terms and conditions set forth in
the Prospectus as then amended or supplemented.
The Company reserves the right, in its sole discretion, to
instruct the Agents to suspend at any time, for any period of time or
permanently, the solicitation of offers to purchase Notes. Upon receipt of at
least one business day's prior notice from the Company, the Agents will
forthwith suspend solicitations of offers to purchase Notes from the Company
until such time as the Company has advised the Agents that such solicitation
may be resumed. While such solicitation is suspended, the Company shall not be
required to deliver any certificates, opinions or letters in accordance with
Sections 5(a), 5(b) and 5(c); provided, however, that if the Registration
Statement or Prospectus is amended or supplemented during the period of
suspension (other than by an amendment or supplement providing solely for a
change in the interest rates, redemption provisions, amortization schedules or
maturities offered on the Notes or for a change the Agents deem to be
immaterial), no Agent shall be required to resume soliciting offers to purchase
Notes until the Company has delivered such certificates, opinions and letters
as such Agent may request.
The Company agrees to pay to each Agent, as consideration for
the sale of each Note resulting from a
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solicitation made or an offer to purchase received by such Agent, a commission
in the form of a discount from the purchase price of such Note equal to the
percentage set forth below of the purchase price of such Note:
<TABLE>
<CAPTION>
Term Commission Rate
---- ---------------
<S> <C>
From 9 months to less than 1 year .125%
From 1 year to less than 18 months .150%
From 18 months to less than 2 years .200%
From 2 years to less than 3 years .250%
From 3 years to less than 4 years .350%
From 4 years to less than 5 years .450%
From 5 years to less than 6 years .500%
From 6 years to less than 7 years .550%
From 7 years to less than 10 years .600%
From 10 years to less than 15 years .625%
From 15 years to less than 20 years .700%
From 20 years to less than 30 years .750%
30 years and beyond to be negotiated
</TABLE>
Each Agent shall communicate to the Company, orally or in
writing, each offer to purchase Notes received by such Agent as agent that in
its reasonable judgment should be considered by the Company. The Company shall
have the sole right to accept offers to purchase Notes and may reject any offer
in whole or in part. Each Agent shall have the right to reject any offer to
purchase Notes that it considers to be unacceptable, and any such rejection
shall not be deemed a breach of its agreements contained herein. The
procedural details relating to the issue and delivery of Notes sold by the
Agents as agents and the payment therefor
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shall be as set forth in the Administrative Procedures (as hereinafter
defined).
(b) Purchases as Principal. Each sale of Notes to an Agent
as principal shall be made in accordance with the terms of this Agreement. In
connection with each such sale, the Company will enter into a Terms Agreement
that will provide for the sale of such Notes to and the purchase thereof by such
Agent. Each Terms Agreement will take the form of either (i) a written
agreement between such Agent and the Company, which may be substantially in the
form of Exhibit A hereto (a "Written Terms Agreement"), or (ii) an oral
agreement between such Agent and the Company confirmed in writing by such Agent
to the Company.
An Agent's commitment to purchase Notes pursuant to a Terms
Agreement shall be deemed to have been made on the basis of the representation
and warranties of the Company herein contained and shall be subject to the
terms and conditions herein set forth. Each Terms Agreement shall specify the
principal amount of Notes to be purchased by such Agent pursuant thereto, the
maturity date of such Notes, the price to be paid to the Company for such
Notes, the interest rate and interest rate formula, if any, applicable to such
Notes and any other terms of such Notes. Each such Terms Agreement may also
specify any requirements for officers' certificates, opinions of counsel and
letters from the independent public accountants of the Company pursuant to
Section 4 hereof. A Terms Agreement may also specify certain provisions
relating to the reoffering of such Notes by such Agent.
Each Terms Agreement shall specify the time and place of
delivery of and payment for such Notes. Unless otherwise specified in a Terms
Agreement, the procedural details relating to the issue and delivery of Notes
purchased by an Agent as principal and the payment therefor shall be as set
forth in the Administrative Procedures. Each date of delivery of and payment
for Notes to be
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purchased by an Agent pursuant to a Terms Agreement is referred to herein as a
"Settlement Date".
Unless otherwise specified in a Terms Agreement, if you are
purchasing Notes as principal you may resell such Notes to other dealers. Any
such sales may be at a discount, which shall not exceed the amount set forth in
the Prospectus Supplement relating to such Notes.
(c) Administrative Procedures. The Agents and the Company
agree to perform the respective duties and obligations specifically provided to
be performed in the Medium-Term Notes Administrative Procedures (attached hereto
as Exhibit B) (the "Administrative Procedures"), as amended from time to time.
The Administrative Procedures may be amended only by written agreement of the
Company and the Agents.
(d) Delivery. The documents required to be delivered by
Section 4 of this Agreement as a condition precedent to each Agent's obligation
to begin soliciting offers to purchase Notes as an agent of the Company shall be
delivered at the office of Cravath, Swaine & Moore, counsel for the Agents, not
later than 10 a.m., New York time, on the date hereof, or at such later time
and/or place as the Agents and the Company may agree upon in writing, but in no
event later than the day prior to the earlier of (i) the date on which the
Agents begin soliciting offers to purchase Notes and (ii) the first date on
which the Company accepts any offer by an Agent to purchase Notes pursuant to a
Terms Agreement. The date of delivery of such documents is referred to herein
as the "Commencement Date."
(e) Obligations Several. The Company acknowledges that the
obligations of the Agents under this Agreement are several and not joint.
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3. Agreements. The Company agrees with each Agent that:
(a) Prior to the termination of the offering of the Notes
pursuant to this Agreement or any Terms Agreement, the Company will not file any
Prospectus Supplement relating to the Notes or any amendment to the Registration
Statement unless the Company has previously furnished to the Agents copies
thereof for their review and will not file any such proposed supplement or
amendment to which the Agents reasonably object; provided, however, that (i) the
foregoing requirement shall not apply to any of the Company's periodic filings
with the Commission required to be filed pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act, copies of which filings the Company will cause to be
delivered to the Agents promptly after being transmitted for filing with the
Commission and (ii) any Prospectus Supplement that merely sets forth the terms
or a description of particular Notes shall only be reviewed and approved by the
Agent or Agents offering such Notes. Subject to the foregoing sentence, the
Company will promptly cause each Prospectus Supplement to be filed with or
transmitted for filing to the Commission in accordance with Rule 424(b) under
the Securities Act. The Company will promptly advise the Agents (i) of the
filing of any amendment or supplement to the Basic Prospectus (except that
notice of the filing of an amendment or supplement to the Basic Prospectus that
merely sets forth the terms or a description of particular Notes shall only be
given to the Agent or Agents offering such Notes), (ii) of the filing and
effectiveness of any amendment to the Registration Statement, (iii) of any
request by the Commission for any amendment to the Registration Statement or any
amendment or supplement to the Basic Prospectus or for any additional
information, (iv) of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose and (v) of the receipt by the
Company of any notification with respect to the suspension of the qualification
of the Notes for sale in any jurisdiction or
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the initiation or threatening of any proceeding for such purpose. The Company
will use its best efforts to prevent the issuance of any such stop order or
notice of suspension of qualification and, if issued, to obtain as soon as
possible the withdrawal thereof. If the Basic Prospectus is amended or
supplemented as a result of the filing under the Exchange Act of any document
incorporated by reference in the Prospectus, no Agent shall be obligated to
solicit offers to purchase Notes so long as it is not reasonably satisfied with
such documents.
(b) If, at any time when a prospectus relating to the Notes is
required to be delivered under the Securities Act, any event occurs or condition
exists as a result of which the Prospectus, as then amended or supplemented,
would include an untrue statement of a material fact, or omit to state any
material fact necessary to make the statements therein, in the light of the
circumstances when the Prospectus, as then amended or supplemented, is delivered
to a purchaser, not misleading, or if, in the reasonable opinion of the Agents
or in the reasonable opinion of the Company, it is necessary at any time to
amend or supplement the Prospectus, as then amended or supplemented, to comply
with applicable law, the Company will promptly notify the Agents by telephone
(with confirmation in writing) to suspend solicitation of offers to purchase
Notes and, if so notified by the Company, the Agents shall forthwith suspend
such solicitation and cease using the Prospectus, as then amended or
supplemented. If the Company shall decide to amend or supplement the
Registration Statement or Prospectus, as then amended or supplemented, it shall
so advise the Agents promptly by telephone (with confirmation in writing) and,
at its expense, shall prepare and cause to be filed promptly with the Commission
an amendment or supplement to the Registration Statement or Prospectus, as then
amended or supplemented, reasonably satisfactory in all respects to the Agents,
that will correct such statement or omission or effect such compliance and will
supply such amended or supplemented Prospectus to the Agents in such quantities
as they may reasonably request. If any
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documents, certificates, opinions and letters furnished to the Agents pursuant
to paragraph (f) below and Sections 5(a), 5(b) and 5(c) in connection with the
preparation and filing of such amendment or supplement are reasonably
satisfactory in all respects to the Agents, upon the filing with the Commission
of such amendment or supplement to the Prospectus or upon the effectiveness of
an amendment to the Registration Statement, the Agents will resume the
solicitation of offers to purchase Notes hereunder. Notwithstanding any other
provision of this Section 3(b), until the distribution of any Notes an Agent
may own as principal has been completed, if any event described above in this
paragraph (b) occurs, the Company will, at its own expense, forthwith prepare
and cause to be filed promptly with the Commission an amendment or supplement
to the Registration Statement or Prospectus, as then amended or supplemented,
reasonably satisfactory in all respects to such Agent, will supply such amended
or supplemented Prospectus to such Agent in such quantities as it may
reasonably request and shall furnish to such Agent pursuant to paragraph (f)
below and Sections 5(a), 5(b) and 5(c) such documents, certificates, opinions
and letters as it may request in connection with the preparation and filing of
such amendment or supplement.
(c) The Company will make generally
available to its security holders and to the Agents as soon as practicable
earnings statements that satisfy the provisions of Section 11(a) of the
Securities Act and the rules and regulations of the Commission thereunder
covering twelve month periods beginning, in each case, not later than the first
day of the Company's fiscal quarter next following the "effective date" (as
defined in Rule 158 under the Securities Act) of the Registration Statement
with respect to each sale of Notes. If such fiscal quarter is the last fiscal
quarter of the Company's fiscal year, such earnings statement shall be made
available not later than 90 days after the close of the period covered thereby
and in all other cases shall be made available not later than 45 days after the
close of the period covered thereby.
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(d) The Company will furnish to each Agent, without charge, a
signed copy of the Registration Statement, including exhibits and all amendments
thereto, and as many copies of the Prospectus, any documents incorporated by
reference therein and any supplements and amendments thereto as such Agent may
reasonably request.
(e) The Company will endeavor to qualify the Notes for offer
and sale under the securities or Blue Sky laws of such jurisdictions as the
Agents shall reasonably request and to maintain such qualifications for so long
as the Agents shall reasonably request; provided, however, that the Company
shall not be required to register or qualify as a foreign corporation or to take
any action which would subject it to general service of process in suits in any
jurisdiction where it is not now so subject.
(f) The Company shall furnish to the Agents such relevant
documents and certificates of officers of the Company relating to the business,
operations and affairs of the Company, the Registration Statement, the Basic
Prospectus, any amendments or supplements thereto, the Indenture, the Notes,
this Agreement, the Administrative Procedures, any Terms Agreement and the
performance by the Company of its obligations hereunder or thereunder as the
Agents may from time to time reasonably request.
(g) The Company shall notify the Agents promptly in writing of
any downgrading, or of its receipt of any notice of any intended or potential
downgrading or of any review for possible change that does not indicate the
direction of the possible change, in the rating accorded any of the Company's
securities by an "nationally recognized statistical rating organization", as
such term is defined for purposes of Rule 436(g)(2) under the Securities Act.
(h) The Company will, whether or not any sale of Notes is
consummated, pay all expenses incident to the performance of its obligations
under this Agreement and any
<PAGE> 18
18
Terms Agreement, including: (i) the preparation and filing of the Registration
Statement and the Prospectus and all amendments and supplements thereto, (ii)
the preparation, issuance and delivery of the Notes, (iii) the fees and
disbursements of the Company's counsel and accountants and of the Trustee and
its counsel, (iv) the qualification of the Notes under securities or Blue Sky
laws in accordance with the provisions of Section 3(e), including filing fees
and the fees and disbursements of counsel for the Agents in connection
therewith and in connection with the preparation of any Blue Sky or Legal
Investment Memoranda, (v) the printing and delivery to the Agents in quantities
as hereinabove stated of copies of the Registration Statement and all
amendments thereto and of the Prospectus and any amendments or supplements
thereto, (vi) the printing and delivery to the Agents of copies of any Blue Sky
or Legal Investment Memoranda, (vii) any fees charged by rating agencies for
the rating of the Notes, (viii) any expenses incurred by the Company in
connection with a "road show" presentation to potential investors, (ix) the
reasonable fees and disbursements of counsel for the Agents incurred in
connection with the offering and sale of the Notes, including any opinions to
be rendered by such counsel hereunder, and (x) any out-of-pocket expenses
incurred by the Agents; provided that any advertising expenses incurred by the
Agents shall have been approved by the Company; and, provided, further, that
the Agents shall be solely responsible for all travel, hotel and other
out-of-pocket expenses incurred by employees of the Agents in connection with
any "road show" conducted with respect to the offering and sale of the Notes.
(i) During the period beginning on the date of any Terms
Agreement and continuing to and including the Settlement Date with respect to
such Terms Agreement, the Company will not, without such Agent's prior written
consent, which shall not be unreasonably withheld, offer, sell, contract to sell
or otherwise dispose of any debt securities of the Company or warrants to
purchase debt securities of the Company substantially similar to such
<PAGE> 19
19
Notes (other than (i) the Notes that are to be sold pursuant to such Terms
Agreement, (ii) Notes previously agreed to be sold by the Company and (iii)
commercial paper issued in the ordinary course of business), except as may
otherwise be provided in such Terms Agreement.
3. Conditions of the Obligations of the Agents.
Each Agent's obligations to solicit offers to purchase Notes as agent of the
Company, each Agent's obligation to purchase Notes pursuant to any Terms
Agreement and the obligation of any other purchaser to purchase Notes will be
subject to the accuracy in all material respects of the representations and
warranties on the part of the Company herein, to the accuracy in all material
respects of the statements of the Company's officers made in each certificate
furnished pursuant to the provisions hereof and to the performance by the
Company in all material respects of all covenants and agreements herein
contained on its part to be performed (in the case of an Agent's obligation to
solicit offers to purchase Notes, at the time of such solicitation, and, in the
case of an Agent's or any other purchaser's obligation to purchase Notes, at the
time of such solicitation, and, in the case of an Agent's or any other
purchaser's obligation to purchase Notes, at the time the Company accepts the
offer to purchase such Notes and at the time of issuance and delivery) and (in
each case) to the following additional conditions precedent when and as
specified:
(a) Prior to such solicitation or purchase, as the case may
be:
(i) there shall not have occurred any change, or any
development involving a prospective hange, in the condition, financial
or otherwise, or in the earnings, business or operations of the
Company and its subsidiaries, taken as a whole, from that set forth in
the Prospectus, as amended or supplemented at the time of such
solicitation or at the time such offer to purchase was made, that, in
the reasonable judgment of the relevant Agent, is material and adverse
and that
<PAGE> 20
20
makes it, in the reasonable judgment of such Agent, impracticable to
market the Notes on the terms and in the manner contemplated by the
Prospectus, as so amended or supplemented;
(ii) there shall not have occurred any (A) suspension or
material limitation of trading generally on or by, as the case may be,
any of the New York Stock Exchange, the American Stock Exchange, the
National Association of Securities Dealers, Inc., the Chicago Board
Options Exchange, the Chicago Mercantile Exchange or the Chicago Board
of Trade, (B) suspension of trading of any securities of the Company
on any exchange or in any over-the- counter market, (C) declaration of
a general moratorium on commercial banking activities in New York by
either Federal or New York State authorities or (D) any outbreak or
escalation of hostilities or any change in financial markets or any
calamity or crisis that, in the reasonable judgment of the relevant
Agent, is material and adverse and, in the case of any of the events
described in clauses (ii)(A) through (D), such event, singly or
together with any other such event, makes it, in the reasonable
judgment of such Agent, impracticable to market the Notes on the terms
and in the manner contemplated by the Prospectus, as amended or
supplemented at the time of such solicitation or at the time such
offer to purchase was made; and
(iii) there shall not have occurred any downgrading, nor shall
any notice have been given of any intended or potential downgrading,
in the rating accorded any of the Company's debt securities by any
"nationally recognized statistical rating organization," as such term
is defined for purposes of Rule 436(g)(2) under the Securities Act;
(A) except, in each case described in paragraph (i), (ii) or
(iii) above, as disclosed to the relevant Agent in writing by the
Company prior to such
<PAGE> 21
21
solicitation or, in the case of a purchase of Notes, as disclosed to
the relevant Agent before the offer to purchase such Notes was made or
(B) unless in each case described in (ii) above, the relevant event
shall have occurred and been known to the relevant Agent before such
solicitation or, in the case of a purchase of Notes, before the offer
to purchase such Notes was made.
(b) On the Commencement Date and, if called for by any Terms
Agreement, on the corresponding Settlement Date, the relevant Agents shall have
received:
(i) The opinion, dated as of such date, of Dow, Lohnes &
Albertson, outside counsel for the Company, to the effect that:
(A) the Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware,
with corporate power and authority to own its properties and conduct
its business as described in the Prospectus; and the Company is duly
qualified to do business as a foreign corporation in good standing in
all other jurisdictions in which its ownership or lease of property or
the conduct of its business requires such qualification, other than
those in which the failure to so qualify would not, individually or in
the aggregate, have a material adverse effect on the Company and its
subsidiaries taken as a whole;
(B) the Indenture has been duly authorized, executed and
delivered by the Company and has been duly qualified under the Trust
Indenture Act; the Company has full corporate power and authority to
authorize, issue and sell the Notes as contemplated by this Agreement;
the Notes delivered on the Closing Date have been duly authorized,
executed, authenticated, issued and delivered in accordance with the
Indenture and conform to the description thereof contained in the
<PAGE> 22
22
Prospectus; and the Indenture and the Notes delivered on the Closing
Date constitute valid and legally binding obligations of the Company
enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles;
(C) no consent, approval, authorization or order of, or filing
with, any U.S. governmental agency or body or any court is required
for the execution and delivery of this Agreement, any applicable
Written Terms Agreement or the Notes or the consummation of the
transactions contemplated by this Agreement any applicable Written
Terms Agreement in connection with the issuance or sale of the Notes
by the Company, except such as have been obtained and made under the
Act and the Trust Indenture Act and such as may be required under
state securities laws;
(D) the execution, delivery and performance of the Indenture,
this Agreement any applicable Written Terms Agreement and the issuance
and sale of the Notes and compliance with the terms and provisions
thereof will not (a) result in a breach or violation of any of the
terms and provisions of, or constitute a default under, any statute,
any rule, regulation or order of any governmental agency or body or
any court known to such counsel having jurisdiction over the Company
or any subsidiary of the Company or any of their properties, or any
indenture, agreement or instrument known to such counsel to which the
Company or any such subsidiary is a party or by which the Company or
any such subsidiary is bound or to which any of the properties of the
Company or any such subsidiary is subject, or the charter or by-laws
of the Company or any such subsidiary; or (b) result in or require the
creation or imposition of any lien pursuant to the provisions of any
indenture, instrument or agreement known to such
<PAGE> 23
23
counsel to which the Company or any such subsidiary is a party or by
which the Company or any such subsidiary is bound or to which any of
the properties of the Company or any such subsidiary is subject;
(E)(I) the Registration Statement was declared effective under
the Act as of the date and time specified in such opinion, the
Prospectus either was filed with the Commission pursuant to the
subparagraph of Rule 424(b) specified in such opinion on the date
specified therein or was included in the Registration Statement, and,
to the knowledge of such counsel, no stop order suspending the
effectiveness of a Registration Statement or any part thereof has been
issued and no proceedings for that purpose have been instituted or are
pending or contemplated under the Act, and the Registration Statement
and the Prospectus, and each amendment or supplement thereto, as of
their respective effective or issue dates, complied as to form in all
material respects with the requirements of the Act, the Trust
Indenture Act and the Rules and Regulations (it being understood that
such counsel need express no opinion as to the financial statements
and related schedules or other financial or statistical data contained
in the Registration Statement or the Prospectus or any amendment or
supplement thereto); (II) the descriptions in the Registration
Statement and Prospectus of statutes, legal and governmental
proceedings and contracts and other documents are accurate and fairly
present the information required to be shown; and (III) such counsel
do not know of any legal or governmental proceedings required to be
described in the Registration Statement or the Prospectus which are
not described as required or of any contracts or documents of a
character required to be described in the Registration Statement or
the Prospectus or to be filed as exhibits to the Registration
Statement which are not described and filed as required;
<PAGE> 24
24
(F) each of this Agreement and any applicable Written Terms
Agreement has been duly authorized, executed and delivered by the
Company;
(G) the Company has been granted and presently holds the
Federal Communications Commission (the "FCC") authorizations necessary
for the Company to conduct its business as presently conducted or
proposed to be conducted other than those that would not, individually
or in the aggregate, have a material adverse effect on the Company and
its subsidiaries taken as a whole; such FCC authorizations are in full
force and effect other than those that would not, individually or in
the aggregate, have a material adverse effect on the Company and its
subsidiaries taken as a whole; and to the knowledge of such counsel,
except as set forth in a schedule to such opinion, no proceedings to
revoke such FCC authorizations are pending or threatened;
(H) to the knowledge of such counsel after due inquiry, such
counsel is of the opinion that the Company is not, nor with the
passage of time or the giving of notice or both would be, in violation
of any judgment, injunction, order or decree of the FCC other than
those that would not, individually or in the aggregate, have a
material adverse effect on the Company and its subsidiaries taken as a
whole;
(I) the execution and delivery of this Agreement, any
applicable Written Terms Agreement and the Notes by the Company, and
the performance by the Company of its obligations under this Agreement
and the Notes, do not violate the Communications Act of 1934, as
amended, or any rules or the regulations thereunder binding on the
Company or its subsidiaries or any order, writ, judgment, injunction,
decree or award of the FCC binding on the Company or its subsidiaries
of which such counsel has knowledge after due inquiry;
<PAGE> 25
25
(J) there is no proceeding or investigation pending before the
FCC, or, to the knowledge of such counsel, threatened by the FCC
against the Company or its subsidiaries which, if adversely
determined, would have a material adverse effect on the Company and
its subsidiaries taken as a whole; and
(K) the execution, delivery and performance of this Agreement
does not constitute the transfer or assignment, directly or
indirectly, of any license existing as of the Closing Date issued by
the FCC in connection with the operations of the Company or the
transfer of control of the Company within the meaning of Section
310(d) of the Communications Act of 1934, as amended.
In addition to the matters set forth above, such opinion shall
also include a statement to the effect that such counsel have participated in
the preparation of the Registration Statement and the Prospectus and have had
discussions with officers and other representatives of the Company,
representatives of the independent public accountants for the Company and the
Agents at which the contents of the Registration Statement and the Prospectus
and related matters were discussed, and although such counsel are not passing
upon and do not assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statements and the
Prospectus (except in respect of the matters referred to in Section 4(b)(i)(B)
hereof with respect to the conformity of the Notes to the description thereof
in the Prospectus and in Section 4(b)(i)(E)(II) hereof) on the basis of the
foregoing, nothing has come to the attention of such counsel which leads them
to believe that any part of a Registration Statement or any amendment thereto,
at the time the Registration Statements or amendment became effective,
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
not misleading or that the Prospectus or any amendment or supplement thereto,
<PAGE> 26
26
at the time it was filed pursuant to Rule 424(b) or on the Closing Date,
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;
provided, however, that no opinion need be rendered as to the financial
statements and the supporting schedules contained in such Registration
Statement or Prospectuses.
(ii) The opinion, dated as of such date, of Cravath, Swaine &
Moore, special counsel for the Agents, with respect to the validity of
the Notes, the Registration Statements, the Prospectus and other
related matters as the Agents may require, and the Company shall have
furnished to such counsel such documents as they reasonably request for
the purpose of enabling them to pass upon such matters.
Notwithstanding the foregoing, the opinions described in
subparagraphs (B) (except as to due authorization of the Notes), (D), (E)(II)
and the concluding paragraph of Section 4(b)(i) of paragraph (b)(i) above, when
contained in an opinion delivered on the Commencement Date or pursuant to
Section 5(b), shall be deemed not to address the application of the Commodity
Exchange Act, as amended, or the rules, regulations or interpretations of the
Commodity Futures Trading Commission to Notes the payments of principal or
interest on which will be determined by reference to one or more currency
exchange rates, commodity prices, equity indices or other factors.
The opinion of Dow, Lohnes & Albertson described in paragraph
(b)(i) above shall be rendered to the Agents at the request of the Company and
shall so state therein.
(c) On the Commencement Date and, if called for by any Terms
Agreement, on the corresponding Settlement Date, the relevant Agents shall have
received a certificate, dated the Commencement Date or such Settlement Date, as
the
<PAGE> 27
27
case may be, and signed by an executive officer of the Company, and to the
knowledge of such officer but without personal liability, to the effect set
forth in subparagraph (a)(iii) above and to the effect that the representations
and warranties of the Company contained in this Agreement are true and correct
in all material respects as of such date and that the Company has complied in
all material respects with all of the agreements and satisfied all of the
conditions on its part to be performed or satisfied on or before such date.
(d) On the Commencement Date and, if called for by any Terms
Agreement, on the corresponding Settlement Date, Deloitte & Touche LLP and Ernst
& Young LLP, independent public accountants, shall have furnished to the
relevant Agents a letter or letters, dated the Commencement Date or such
Settlement date, as the case may be, in form and substance satisfactory to such
Agents containing statements and information of the type ordinarily included in
the accountants' "comfort letters" to underwriters with respect to the financial
statements and certain financial information contained in or incorporated by
reference into the Prospectus, as then amended or supplemented.
(e) On the Commencement Date and on each Settlement Date, the
Company shall have furnished to the relevant Agents such appropriate further
information, certificates and documents as they may reasonably request.
5. Additional Agreements of the Company.
(a) Each time the Registration Statement or Prospectus is
amended or supplemented (other than by an amendment or supplement providing
solely for a change in the interest rates, redemption provisions, amortization
schedules or maturities offered on the Notes or for a change the Agents deem to
be immaterial), the Company will deliver or cause to be delivered forthwith to
each Agent a certificate signed by an executive officer of the Company, dated
the date of such amendment or supplement, as the case
<PAGE> 28
28
may be, in form reasonably satisfactory to the Agents, of the same tenor as the
certificate referred to in Section 4(c) relating to the Registration Statement
or the Prospectus as amended or supplemented to the time of delivery of such
certificate.
(b) Each time the Company furnishes a certificate pursuant to
Section 5(a), the Company will furnish or cause to be furnished forthwith to
each Agent a written opinion of independent counsel for the Company. Any such
opinion shall be dated the date of such amendment or supplement, as the case may
be, shall be in a form reasonably satisfactory to the Agents and shall be of the
same tenor as the opinion referred to in Section 4(b)(i), but modified to relate
to the Registration Statement and the Prospectus as amended and supplemented to
the time of delivery of such opinion. In lieu of such opinion, counsel last
furnishing such an opinion to an Agent may furnish to each Agent a letter to the
effect that such Agent may rely on such last opinion to the same extent as
though it were dated the date of such letter (except that statements in such
last opinion will be deemed to relate to the Registration Statement and the
Prospectus as amended or supplemented to the time of delivery of such letter.)
(c) Each time the Registration Statement or the Prospectus is
amended or supplemented to set forth amended or supplemental financial
information or such amended or supplemental information is incorporated by
reference in the Prospectus, the Company shall cause its independent public
accountants forthwith to furnish each Agent with a letter, dated the date of
such amendment or supplement, as the case may be, in form reasonably
satisfactory to the Agents, of the same tenor as the letter referred to in
Section 4(d), with regard to the amended or supplemental financial information
included or incorporated by reference in the Registration Statement or
Prospectus as amended or supplemented to the date of such letter.
<PAGE> 29
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6. Indemnity and Contribution.
(a) The Company agrees to indemnify and hold harmless each
Agent and each person, if any, who controls any Agent within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act from
and against any and all losses, claims, damages and liabilities (including,
without limitation, any legal or other expenses reasonably incurred by any Agent
or any such controlling person in connection with defending or investigating any
such action or claim) caused by any untrue statement of a material fact
contained in the Registration Statement or any amendment thereof or the
Prospectus (as amended or supplemented if the Company shall have furnished any
amendments or supplements thereto), or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as such
losses, claims, damages or liabilities are caused by any such untrue statement
or omission or alleged untrue statement or omission based upon information
relating to such Agent furnished to the Company in writing by such Agent
expressly for use therein; provided, however, that with respect to any untrue
statement or omission or alleged untrue statement or omission made in any
preliminary prospectus, the indemnity agreement contained in this paragraph
shall not inure to the benefit of any Underwriter from whom the person asserting
any such losses, claims, damages or liabilities purchased the Offered Securities
concerned, if (a) a prospectus relating to such Offered Securities was required
to be delivered by such Underwriter under the Act in connection with such
purchase, (b) any such loss, claim, damage or liability of such Underwriter
results from the fact that there was not sent or given to such person, at or
prior to the written confirmation of the sale of such Offered Securities to such
person, a copy of the Prospectus and (c) the Company had previously furnished
copies of the Prospectus to such Underwriter and delivery of such Prospectus
would have cured the defect giving rise to such losses, claims, damages or
liabilities.
<PAGE> 30
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(b) Each Agent agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers who sign
the Registration Statement and each person, if any, who controls the Company
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act to the same extent as the foregoing indemnity from the Company
to such Agent, but only with reference to information relating to such Agent
furnished to the Company in writing by such Agent expressly for use in the
Registration Statement or the Prospectus or any amendments or supplements
thereto.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either paragraph (a) or (b) above, such
person (the "indemnified party") shall promptly notify the person against whom
such indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in
<PAGE> 31
31
addition to any local counsel) for all such indemnified parties and that all
such fees and expenses shall be reimbursed as they are incurred. Such firm
shall be designated in writing by Morgan Stanley or, if Morgan Stanley is not
an indemnified party and is not reasonably likely to become an indemnified
party, by the Agents that are indemnified parties, in the case of parties
indemnified pursuant to paragraph (a) above, and by the Company, in the case of
parties indemnified pursuant to paragraph (b) above. The indemnifying party
shall not be liable for any settlement of any proceeding effected without its
written consent, but if settled with such consent or if there shall be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time
an indemnified party shall have requested an indemnifying party to reimburse
the indemnified party for fees and expenses of counsel as contemplated by the
second and third sentences of this paragraph, the indemnifying party agrees
that it shall be liable for any settlement of any proceeding effected without
its written consent if (i) such settlement is entered into more than 30 days
after receipt by such indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in respect
of which any indemnified party is or could have been a party and indemnity
could have been sought hereunder by such indemnified party, unless such
settlement includes an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in
paragraph (a) or (b) of this Section 6 is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein
<PAGE> 32
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in connection with any offering of Notes, then each indemnifying party under
such paragraph, in lieu of indemnifying such indemnified party thereunder,
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 each Agent on the other hand from the offering of such Notes 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 each Agent on the other hand in connection
with the statements or omissions that 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 each Agent on the
other hand in connection with the offering of such Notes shall be deemed to be
in the same respective proportions as the total net proceeds from the offering
of such Notes (before deducting expenses) received by the Company bear to the
total discounts and commissions received by each Agent in respect thereof. The
relative fault of the Company on the one hand and each Agent on the other hand
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
such Agent and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. Each Agent's
obligation to contribute pursuant to this Section 6 shall be several in the
proportion that the principal amount of the Notes the sale of which by or
through such Agent gave rise to such losses, claims, damages or liabilities
bears to the aggregate principal amount of the Notes the sale of which by or
through any Agent gave rise to such losses, claims, damages or liabilities, and
not joint.
<PAGE> 33
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(e) The Company and the Agents agree that it would not be
just or equitable if contribution pursuant to this Section 6 were determined by
pro rata allocation (even if the Agents were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in paragraph (d) of this Section 6. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in paragraph (d) of this Section 6
shall be deemed to include, subject to the limitations set forth above, any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 6, no Agent shall be required to
contribute any amount in excess of the amount by which the total price at which
the Notes referred to in paragraph (d) of this Section 6 that were offered and
sold to the public through such Agent exceeds the amount of any damages that
such Agent has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The remedies provided for in this
Section 6 are not exclusive and shall not limit any rights or remedies which may
otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in
this Section 6, representations, warranties and other statements of the Company,
its officers and the Agents set forth in or made pursuant to this Agreement or
any Terms Agreement will remain in full force and effect regardless of (i) any
termination of this Agreement or any such Terms Agreement, (ii) any
investigation made by or on behalf of any Agent or any person controlling any
Agent or by or on behalf of the Company, its officers or directors or any person
controlling the Company and (iii) acceptance of and payment for any of the
Notes.
<PAGE> 34
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7. Position of the Agents. In acting under this Agreement and
in connection with the sale of any Notes by the Company (other than Notes sold
to an Agent pursuant to a Terms Agreement), each Agent is acting solely as agent
of the Company and does not assume any obligation towards or relationship of
agency or trust with any purchaser of Notes. An Agent shall make reasonable
efforts to assist the Company in obtaining performance by each purchaser whose
offer to purchase Notes has been solicited by such Agent and accepted by the
Company, but such Agent shall not have any liability to the Company in the event
any such purchase is not consummated for any reason. If the Company shall
default in its obligations to deliver Notes to a purchaser whose offer it has
accepted, the Company shall hold the relevant Agent harmless against any loss,
claim, damage or liability arising from or as result of such default and shall,
in particular, pay to such Agent the commission it would have received had such
sale been consummated.
8. Termination. This Agreement may be terminated at any time
by the Company, or as to any Agent, by the Company or such Agent upon the giving
of written notice of such termination to the other parties hereto, but without
prejudice to any rights, obligations or liabilities of any party hereto accrued
or incurred prior to such termination. The termination of this Agreement shall
not require termination of any Terms Agreement, and the termination of any such
Terms Agreement shall not require termination of this Agreement. If this
Agreement is terminated, the provisions of the third paragraph of Section 2(a),
Section 2(e), the last sentence of Section 3(b) and Sections 3(c), 3(h), 6, 7,
9, 11 and 14 shall survive; provided that if at the time of termination an offer
to purchase Notes has been accepted by the Company but the time of delivery to
the purchaser or its agent of such Notes has not occurred, the provisions of
Sections 2(b), 2(c), 3(a), 3(e), 3(f), 3(g), 3(i), 4 and 5 shall also survive
until such delivery has been made.
<PAGE> 35
35
9. Notices. All communications hereunder will be in writing
and effective only on receipt, and, if sent to Morgan Stanley, will be mailed,
delivered or telefaxed and confirmed to: Morgan Stanley & Co. Incorporated, 1585
Broadway, 2nd Floor, New York, NY 10036, Attention: Manager-Continuously Offered
Products, with a copy to 1585 Broadway, 34th Floor, New York, NY 10036,
Attention: Peter Cooper-Investment Banking Information; Deutsche Morgan
Grenfell/C.J. Lawrence Inc., 31 West 52nd Street, Attention: Debt Capital
Markets, 3rd Floor, New York, NY 10019; Merrill Lynch, Pierce, Fenner & Smith
Incorporated, North Tower, World Financial Center, New York, NY 10281-1307,
Attention: MTN Product Management (Telefax number (212) 449-2234), NationsBanc
Capital Markets, Inc., 100 North Tryon Street, Charlotte, NC 28255, Attention:
MTN Product Management, 7th Floor (Telefax number: (704) 388-9939 or, if sent to
the Company will be mailed, delivered or telefaxed and confirmed to the Company
at Cox Communications, Inc., 1400 Lake Hearn Drive, N.E., Atlanta, Georgia
30319, Attention: Jimmy W. Hayes, Chief Financial Officer (telefax number:
(404) 843-5939).
10. Successors. This Agreement and any Terms Agreement will
inure to the benefit of and be binding upon the parties hereto and their
respective successors and the officers, directors and controlling persons
referred to in Section 6 and the purchasers of Notes (to the extent expressly
provided in Section 4), and no other person will have any right or obligation
hereunder.
11. Amendments; Additional Agreements.
(a) Amendments. This Agreement may be amended or supplemented
if, but only if, such amendment or supplement is in writing and is signed by the
Company and each Agent; provided that the Company may from time to time, upon
prior notice (which notice may be oral) to the Agents but without the consent of
any Agent, amend this Agreement to add as a party hereto one or more additional
firms registered under the Exchange Act, whereupon each such firm shall become
an
<PAGE> 36
36
Agent hereunder on the same terms and conditions as the other Agents that are
parties hereto. The Agents shall sign any amendment or supplement giving
effect to the addition of any such firm as an Agent under this Agreement.
(b) Additional Agreements. The Company may, from time to
time, upon prior notice (which notice may be oral) to the Agents but without the
consent of any Agent, enter into one or more additional agreements for
distribution of the Notes with one or more firms registered under the Exchange
Act; provided, however that any such agreement entered into pursuant to this
subparagraph (b) shall include (i) terms and conditions substantially similar to
those contained in this Agreement and (ii) commission rates identical to those
contained in Section 2(a) of this Agreement.
12. Counterparts. This Agreement may signed in two or more
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
13. Applicable Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York.
14. Headings. The headings of the sections of this Agreement
have been inserted for convenience of reference only and shall not be deemed a
part of this Agreement.
<PAGE> 37
37
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
between the Company and you.
Very truly yours,
COX COMMUNICATIONS, INC.
By:
---------------------------------
Name:
Title:
The foregoing Agreement
is hereby confirmed and
accepted as of the date
first above written.
MORGAN STANLEY & CO. INCORPORATED
By:
------------------------------------
Title:
DEUTSCHE MORGAN GRENFELL/C.J. LAWRENCE INC.
By:
------------------------------------
Title:
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
By:
------------------------------------
Title:
NATIONSBANC CAPITAL MARKETS, INC.
By:
-----------------------------------
Title:
<PAGE> 38
EXHIBIT A
COX COMMUNICATIONS, INC.
MEDIUM-TERM NOTES
TERMS AGREEMENT
[ ] [ ], 19[ ]
Cox Communications, Inc.
1400 Lake Hearn Drive, N.E.
Atlanta, Georgia 30319
Re Distribution Agreement dated
[ ], 1996
(the "Distribution Agreement")
Dear
We agree to purchase your Medium-Term Notes having the
following terms:
[We agree to purchase, severally and not jointly, the
principal amount of Notes set forth below opposite our names:
<TABLE>
<CAPTION>
Principal Amount
of Notes
----------------
<S> <C> <C>
Name
[Insert syndicate list]
Total . . . . . . $
===========
</TABLE>
A-1
<PAGE> 39
The Notes shall have the following terms:
<TABLE>
<CAPTION>
All Notes: Fixed Rate Notes: Floating Rate Notes:
- --------- ---------------- -------------------
<S> <C> <C>
Principal amount: Interest Rate: Base rate:
Purchase price: Applicability of Index maturity:
modified payment
upon acceleration:
Settlement date and If yes, state issue Spread:
time: price:
Place of delivery: Amortization Spread multiplier:
schedule:
Specified currency: Alternate rate event
spread:
Maturity date: Initial interest
rate:
Initial accrual Initial Interest
period OID: reset dates:
Total amount of Interest reset
OID: period:
Original yield to Maximum interest
maturity: rate:
Optional repayment Minimum interest
date(s): rate:
Optional redemption Interest payment
date(s): period:
Initial redemption Interest payment
date: dates:
</TABLE>
A-2
<PAGE> 40
<TABLE>
<S> <C>
Initial redemption Calculation agent:
percentage:
Annual redemption
percentage
decrease:
Other terms:
</TABLE>
The provisions of Sections 1, 2(b) and 2(c) and 3 through 6,
9, 10, 11 and 14 of the Distribution Agreement and the related definitions are
incorporated by reference herein and shall be deemed to have the same force and
effect as if set forth in full herein.
[If on the Settlement Date any one or more of the Agents shall
fail or refuse to purchase notes that it has or they have agreed to purchase on
such date, and the aggregate amount of Notes which such defaulting Agent or
Agents agreed but failed or refused to purchase is not more than one-tenth of
the aggregate amount of the Notes to be purchased on such date, the other
Agents shall be obligated severally in the proportions that the amount of Notes
set forth opposite their respective names above bears to the aggregate amount
of Notes set forth opposite the names of all such non-defaulting Agents, or in
such other proportions as [ ] may specify, to purchase the Notes which
such defaulting Agent or Agents agreed but failed or refused to purchase on
such date; provided that in no event shall the amount of Notes that any Agent
has agreed to purchase pursuant to this Agreement be increased pursuant to this
paragraph by an amount in excess of one-ninth of such amount of Notes without
the written consent of such Agent. If on the Settlement Date any Agent or
Agents shall fail or refuse to purchase Notes and the aggregate amount of Notes
with respect to which such default occurs is more than one-tenth of the
aggregate amount of Notes to be purchased on such date, and arrangements
satisfactory to ________________ and the Company for the purchase of such Notes
are not made
A-3
<PAGE> 41
within 36 hours after such default, this Agreement shall terminate without
liability on the part of any non-defaulting Agent or the Company. In any such
case either ___________ or the Company shall have the right to postpone the
Settlement Date but in no event for longer than seven days, in order that the
required changes, if any, in the Registration Statement and in the Prospectus
or in any other documents or arrangements may be effected. Any action taken
under this paragraph shall not relieve any defaulting Agent from liability in
respect of any default of such Agent under this Agreement.] 1/
This Agreement is subject to termination on the terms
incorporated by reference herein. If this Agreement is so terminated, the
provisions of Sections 3(h), 6, 9, 11 and 14 of the Distribution Agreement
shall survive for the purposes of this Agreement.
The following information, opinions, certificates, letters and
documents referred to in Section 4 of the Distribution Agreement will be
required:__________________
[NAME OF RELEVANT AGENT(S)]
By
--------------------------------
Title:
Accepted:
COX COMMUNICATIONS, INC.
By
-----------------------------
Title:
_________________________
1/ Delete if the transaction will not be syndicated.
A-4
<PAGE> 1
[Draft--5/17/96]
[FORM OF FACE OF SECURITY]
Fixed Rate Note
REGISTERED REGISTERED
No. FXR [PRINCIPAL AMOUNT]
CUSIP:
Unless this certificate is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New York, New
York) to the issuer or its agent for registration of transfer, exchange or
payment, and any certificate issued is registered in the name of Cede & Co. or
such other name as requested by an authorized representative of The Depository
Trust Company and any payment is made to Cede & Co., ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since
the registered owner hereof, Cede & Co., has an interest herein. 1/
IF APPLICABLE, THE "TOTAL AMOUNT OF OID," "ORIGINAL YIELD TO
MATURITY" AND "INITIAL ACCRUAL PERIOD OID" (COMPUTED UNDER THE
APPROXIMATE METHOD) SET FORTH BELOW HAVE BEEN COMPLETED SOLELY FOR THE
PURPOSES OF APPLYING THE FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT
("OID") RULES.
COX COMMUNICATIONS, INC.
MEDIUM-TERM NOTE
(Fixed Rate)
____________________
1/ Applies only if this Note is a Registered Global Security.
<PAGE> 2
<TABLE>
<S> <C> <C> <C>
ORIGINAL ISSUE DATE: INITIAL REDEMPTION DATE: INTEREST RATE: ORIGINAL MATURITY
DATE:
INTEREST ACCRUAL DATE: INITIAL REDEMPTION APPLICABILITY OF OPTIONAL REPAYMENT
PERCENTAGE: MODIFIED PAYMENT UPON DATES(S):
ACCELERATION:
TOTAL AMOUNT OF OID: ANNUAL REDEMPTION If yes, state Issue
PERCENTAGE REDUCTION: Price:
ORIGINAL YIELD TO MATURITY: SPECIFIED CURRENCY:
INITIAL ACCRUAL PERIOD:
APPLICABILITY OF ISSUER'S APPLICABILITY OF ANNUAL
OPTION TO EXTEND ORIGINAL INTEREST PAYMENTS:
MATURITY DATE:
If yes, state Final Maturity
Date:
OTHER PROVISIONS:
</TABLE>
Cox Communications, Inc., a Delaware corporation (together
with its successors and assigns, the "Issuer), for value received
hereby promises to pay to
, or registered assignees, the principal sum of
, on the Original Maturity Date specified above or, if the maturity
hereof is extended in accordance with the procedures set forth below
to an Extended Maturity Date, as defined below, on such Extended
Maturity Date (except to the extent previously redeemed or repaid) and
to pay interest thereon at the Interest Rate per annum specified above
or, if the interest rate hereon is reset or re-established in
connection with an extension of maturity in accordance with the
procedures specified on the reverse hereof, at the interest rate per
annum determined pursuant
<PAGE> 3
3
to such procedures, from the Interest Accrual Date specified above
until the principal hereof is paid or duly made available for payment
(except as provided below), semiannually in arrears on the first day
of March and September in each year (each such date an "Interest
Payment Date") commencing on the Interest Payment Date next succeeding
the Interest Accrual Date specified above, and at maturity (or on any
redemption or repayment date); provided, however, that if the Interest
Accrual Date occurs between a Record Date, as defined below, and the
next succeeding Interest Payment Date, interest payments will commence
on the second Interest Payment Date succeeding the Interest Accrual
Date to the registered holder of this Note on the Record Date with
respect to such second Interest Payment Date; and provided, further,
that if this Note is subject to "Annual Interest Payments," interest
payments shall be made annually in arrears and the term "Interest
Payment Date" shall be deemed to mean the first day of March in
each year.
Interest on this Note will accrue from the most recent
Interest Payment Date to which interest has been paid or duly provided
for, or, if no interest has been paid or duly provided for, from the
Interest Accrual Date, until the principal hereof has been paid or
duly made available for payment (except as provided below). The
interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, subject to certain exceptions described
herein, be paid to the person in whose name this Note (or one or more
predecessor Notes) is registered at the close of business on the date
15 calendar days prior to such Interest Payment Date (whether or not a
Business Day) (each such date a "Record Date"); provided, however,
that interest payable at maturity (or on any redemption or
repayment date) will be payable to the person to whom the principal
hereof shall be payable. As used herein, "Business Day" means any
day, other than a Saturday or Sunday, that is neither a legal holiday
nor a day on which banking institutions are authorized or required by
law or regulation to close in The City of New York and (i) with
respect to Notes denominated in a Specified Currency other than U.S.
dollars, Australian
<PAGE> 4
4
dollars or European Currency Units ("ECUs"), in the principal
financial center of the country of the Specified Currency, (ii) with
respect to Notes denominated in Australian dollars, in Sydney and
(iii) with respect to Notes denominated in ECUs, that is not a non-ECU
clearing day, as determined by the ECU Banking Association in Paris.
Payment of the principal of this Note, any premium and the
interest due at maturity (or on any redemption or repayment date) will
be made in immediately available funds upon surrender of this Note at
the office or agency of the Paying Agent, as defined on the reverse
hereof, maintained for that purpose in the Borough of Manhattan, The
City of New York, or at such other paying agency as the Issuer may
determine. Payment of the principal of and premium, if any, and
interest on this Note will be made in the Specified Currency indicated
above; provided, however, that U.S. dollar payments of interest, other
than interest due at maturity or on any date of redemption or
repayment, will be made by U.S. dollar check mailed to the address of
the person entitled thereto as such address shall appear in the Note
register. A holder of U.S. $10,000,000 or more in aggregate principal
amount of Notes having the same Interest Payment Date will be entitled
to receive payments of interest, other than interest due at maturity
or on any date of redemption or payment, by wire transfer of
immediately available funds if appropriate wire transfer instructions
have been received by the Paying Agent in writing not less than 15
calendar days prior to the applicable Interest Payment Date. If this
Note is denominated in a Specified Currency other than U.S. dollars,
payments of interest hereon will be made by wire transfer of
immediately available funds to an account maintained by the holder
hereof with a bank located outside the United States if appropriate
wire transfer instructions have been received by the Paying Agent in
writing not less than 15 calendar days prior to the applicable
Interest Payment Date. If such wire transfer instructions are not so
received, such interest payments will be made by check payable in such
Specified
<PAGE> 5
5
Currency mailed to the address of the person entitled thereto as such
address shall appear in the Note register.
Reference is hereby made to the further provisions of this
Note set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by manual
signature, this Note shall not be entitled to any benefit under the
Indenture, as defined on the reverse hereof, or be valid or obligatory
for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly
executed under its corporate seal.
COX COMMUNICATIONS, INC.
By____________________________
Title:
DATED: By____________________________
Title:
<PAGE> 6
6
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Notes
referred to in the within-
mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
By_______________________
Authorized Signatory
<PAGE> 7
7
[FORM OF REVERSE OF SECURITY]
This Note is one of a duly authorized issue of Medium-Term
Notes, having maturities more than nine months from the date of issue
(the "Notes") of the Issuer. The Notes are issuable under an
Indenture, dated as of June 27, 1995, (the "Indenture"), between the
Issuer and The Bank of New York, as Trustee (the "Trustee," which term
includes any successor trustee under the Indenture), to which
Indenture and all indentures supplemental thereto reference is hereby
made for a statement of the respective rights, limitations of rights,
duties and immunities of the Issuer, the Trustee and holders of the
Notes and the terms upon which the Notes are, and are to be,
authenticated and delivered. The Issuer has appointed The Bank of New
York at its principal corporate trust office in The City of New York
as the paying agent (the "Paying Agent," which term includes any
additional or successor Paying Agent appointed by the Issuer) with
respect to the Notes. The terms of individual Notes may vary with
respect to interest rates, interest rate formulas, issue dates,
maturity dates, or otherwise, all as provided in the Indenture. To
the extent not inconsistent herewith, the terms of the Indenture are
hereby incorporated by reference herein.
This Note will not be subject to any sinking fund and, unless
otherwise provided on the face hereof in accordance with the
provisions of the following two paragraphs, will not be redeemable or
subject to repayment at the option of the holder prior to maturity.
If so indicated on the face of this Note, this Note may be
redeemed in whole or in part at the option of the Issuer on or after
the Initial Redemption Date specified on the face hereof on the terms
set forth on the face hereof, together with interest accrued and
unpaid hereon to the date of redemption (except as provided below).
If this Note is subject to "Annual Redemption Percentage Reduction,"
the Initial Redemption Percentage indicated on the face
<PAGE> 8
8
hereof will be reduced on each anniversary of the Initial Redemption
Date by the Annual Redemption Percentage Reduction specified on the
face hereof until the redemption price of this Note is 100% of the
principal amount hereof, together with interest accrued and unpaid
hereon to the date of redemption (except as provided below). Notice
of redemption shall be mailed to the registered holders of the Notes
designated for redemption at their addresses as the same shall appear
on the Note register not less than 30 nor more than 60 days prior to
the date fixed for redemption, subject to all the conditions and
provisions of the Indenture. In the event of redemption of this Note
in part only, a new Note or Notes for the amount of the unredeemed
portion hereof shall be issued in the name of the holder hereof upon
the cancellation hereof.
Notwithstanding the foregoing, this Note may be redeemed in
accordance with the terms of any Extension Notice, as defined below,
sent to the holder hereof as described below.
If so indicated on the face of this Note, this Note will be
subject to repayment at the option of the holder on the Optional
Repayment Date or Dates specified on the face hereof on the terms set
forth herein. On any Optional Repayment Date, this Note will be
repayable in whole or in part in increments of $1,000 or, if this Note
is denominated in a Specified Currency other than U.S. dollars, in
increments of 1,000 units of such Specified Currency (provided that
any remaining principal amount hereof shall not be less than the
minimum authorized denomination hereof) at the option of the holder
hereof at a price equal to 100% of the principal amount to be repaid,
together with interest accrued and unpaid hereon to the date of
repayment (except as provided below). For this Note to be repaid at
the option of the holder hereof, the Paying Agent must receive at its
corporate trust office in the Borough of Manhattan, The City of New
York, at least 15 but not more than 30 days prior to the date of
repayment, (i) this Note with the form entitled "Option to Elect
Repayment" below duly completed or
<PAGE> 9
9
(ii) a facsimile transmission or a letter from a member of a national
securities exchange or the National Association of Securities Dealers,
Inc. or a commercial bank or a trust company in the United States
setting forth the name of the holder of this Note, the principal
amount hereof, the certificate number of this Note or a description of
this Note's tenor and terms, the principal amount hereof to be repaid,
a statement that the option to elect repayment is being exercised
thereby and a guarantee that this Note, together with the form
entitled "Option to Elect Repayment" duly completed, will be received
by the Paying Agent not later than the fifth Business Day after the
date of such facsimile transmission or letter; provided, that such
facsimile transmission or letter shall only be effective if this Note
and form duly completed are received by the Paying Agent by such fifth
Business Day. Exercise of such repayment option by the holder hereof
shall be irrevocable. In the event of repayment of this Note in part
only, a new Note or Notes for the amount of the unpaid portion hereof
shall be issued in the name of the holder hereof upon the cancellation
hereof.
If so indicated on the face of this Note, the Issuer has the
option to extend the Original Maturity Date hereof for one or more
periods of one or more whole years (each an "Extension Period") up to
but not beyond the Final Maturity Date specified on the face hereof
and in connection therewith to establish a new interest rate and new
redemption provisions for the Extension Period.
The Issuer may exercise such option by notifying the Paying
Agent of such exercise at least 45 but not more than 60 days prior to
the Original Maturity Date or, if the maturity hereof has already been
extended, prior to the maturity date then in effect (an "Extended
Maturity Date"), such notice to be accompanied by the form of the
Extension Notice referred to below. No later than 38 days prior to
the Original Maturity Date or an Extended Maturity Date, as the case
may be (each, a "Maturity Date"), the Paying Agent will mail to the
holder hereof a notice (the "Extension
<PAGE> 10
10
Notice") relating to such Extension Period, first class mail, postage
prepaid, setting forth (a) the election of the Issuer to extend the
maturity of this Note; (b) the new Extended Maturity Date; (c) the
interest rate applicable to the Extension Period; and (d) the
provisions, if any, for redemption during the Extension Period,
including the date or dates on which, the period or periods during
which and the price or prices at which such redemption may occur
during the Extension Period. Upon the mailing by the Paying Agent of
an Extension Notice to the holder of this Note, the maturity hereof
shall be extended automatically, and, except as modified by the
Extension Notice and as described in the next paragraph, this Note
will have the same terms it had prior to the mailing of such Extension
Notice.
Notwithstanding the foregoing, not later than 10:00 A.M., New
York City time, on the twentieth calendar day prior to the Maturity
Date in effect immediately preceding the mailing of the applicable
Extension Notice (or if such day is not a Business Day, not later than
10:00 A.M., New York City time, on the immediately succeeding Business
Day), the Issuer may, at its option, revoke the interest rate provided
for in such Extension Notice and establish a higher interest rate for
the Extension Period by causing the Paying Agent to send notice of
such higher interest rate to the holder of this Note by first class
mail, postage prepaid, or by such other means as shall be agreed
between the Issuer and the Paying Agent. Such notice shall be
irrevocable. All Notes with respect to which the Maturity Date is
extended in accordance with an Extension Notice will bear such higher
interest rate for the Extension Period, whether or not tendered for
repayment.
If the Issuer elects to extend the maturity hereof, the holder
of this Note will have the option to require the Issuer to repay this
Note on the Maturity Date in effect immediately preceding the mailing
of the applicable Extension Notice at a price equal to the principal
amount hereof plus any accrued and unpaid interest to such date. In
order for this Note to be so repaid on
<PAGE> 11
11
such Maturity Date, the holder hereof must follow the procedures set
forth above for optional repayment, except that the period for
delivery of this Note or notification to the Paying Agent shall be at
least 25 but not more than 35 days prior to the Maturity Date in
effect immediately preceding the mailing of the applicable Extension
Notice and except that if the holder hereof has tendered this Note for
repayment pursuant to this paragraph he may, by written notice to the
Paying Agent, revoke any such tender for repayment until 3:00 P.M.,
New York City time, on the twentieth calendar day prior to the
Maturity Date then in effect (or, if such day is not a Business Day,
until 3:00 P.M., New York City time, on the immediately succeeding
Business Day).
Interest payments on this Note will include interest accrued
to but excluding the Interest Payment Dates or the Maturity Date (or
any earlier redemption or repayment date), as the case may be.
Interest payments for this Note will be computed and paid on the basis
of a 360-day year of twelve 30-day months.
In the case where the Interest Payment Date or the Maturity
Date (or any redemption or repayment date) does not fall on a Business
Day, payment of interest, premium, if any, or principal otherwise
payable on such date need not be made on such date, but may be made on
the next succeeding Business Day with the same force and effect as if
made on the Interest Payment Date or on the Maturity Date (or any
redemption or repayment date), and no interest on such payment shall
accrue for the period from and after the Interest Payment Date or the
Maturity Date (or any redemption or repayment date) to such next
succeeding Business Day.
This Note and all the obligations of the Issuer hereunder are
direct, unsecured obligations of the Issuer and rank without
preference or priority among themselves and pari passu with all other
existing and future unsecured and unsubordinated indebtedness of the
Issuer, subject to
<PAGE> 12
12
certain statutory exceptions in the event of liquidation upon
insolvency.
This Note, and any Note or Notes issued upon transfer or
exchange hereof, is issuable only in fully registered form, without
coupons, and, if denominated in U.S. dollars, is issuable only in
denominations of U.S. $1,000 and any integral multiple of U.S. $1,000
in excess thereof. If this Note is denominated in a Specified
Currency other than U.S. dollars, then, unless a higher minimum
denomination is required by applicable law, it is issuable only in
denominations of the equivalent of U.S. $1,000 (rounded to an integral
multiple of 1,000 units of such Specified Currency), or any amount in
excess thereof which is an integral multiple of 1,000 units of such
Specified Currency, as determined by reference to the noon dollar
buying rate in New York City for cable transfers of such Specified
Currency published by the Federal Reserve Bank of New York (the
"Market Exchange Rate") on the Business Day immediately preceding the
date of issuance; provided, however, in the case of ECUs, the Market
Exchange Rate shall be the rate of exchange determined by the
Commission of the European Communities (or any successor thereto) as
published in the Official Journal of the European Communities, or any
successor publication, on the Business Day immediately preceding the
date of issuance.
The Trustee has been appointed registrar for the Notes, and
the Trustee will maintain at its corporate trust office in The City of
New York a register for the registration and transfer of Notes. This
Note may be transferred at the aforesaid office of the Trustee by
surrendering this Note for cancellation, accompanied by a written
instrument of transfer in form satisfactory to the Trustee and duly
executed by the registered holder hereof in person or by the holder's
attorney duly authorized in writing, and thereupon the Trustee shall
issue in the name of the transferee or transferees, in exchange
herefor, a new Note or Notes having identical terms and provisions and
having a like aggregate principal amount in authorized
<PAGE> 13
13
denominations, subject to the terms and conditions set forth herein;
provided, however, that the Trustee will not be required (i) to
register the transfer of or exchange any Note that has been called for
redemption in whole or in part, except the unredeemed portion of Notes
being redeemed in part, (ii) to register the transfer of or exchange
any Note if the holder thereof has exercised his right, if any, to
require the Issuer to repurchase such Note in whole or in part, except
the portion of such Note not required to be repurchased, or (iii) to
register the transfer of or exchange Notes to the extent and during
the period so provided in the Indenture with respect to the redemption
of Notes. Notes are exchangeable at said office for other Notes of
other authorized denominations of equal aggregate principal amount
having identical terms and provisions. All such exchanges and
transfers of Notes will be free of charge, but the Issuer may require
payment of a sum sufficient to cover any tax or other governmental
charge in connection therewith. All Notes surrendered for exchange
shall be accompanied by a written instrument of transfer in form
satisfactory to the Trustee and executed by the registered holder in
person or by the holder's attorney duly authorized in writing. The
date of registration of any Note delivered upon any exchange or
transfer of Notes shall be such that no gain or loss of interest
results from such exchange or transfer.
In case any Note shall at any time become mutilated, defaced
or be destroyed, lost or stolen and such Note or evidence of the loss,
theft or destruction thereof (together with the indemnity hereinafter
referred to and such other documents or proof as may be required in
the premises) shall be delivered to the Trustee, a new Note of like
tenor will be issued by the Issuer in exchange for the Note so
mutilated or defaced, or in lieu of the Note so destroyed or lost or
stolen, but, in the case of any destroyed or lost or stolen Note, only
upon receipt of evidence satisfactory to the Trustee and the Issuer
that such Note was destroyed or lost or stolen and, if required, upon
receipt also of indemnity satisfactory to each of them.
<PAGE> 14
14
All expenses and reasonable charges associated with procuring such
indemnity and with the preparation, authentication and delivery of a
new Note shall be borne by the owner of the Note mutilated, defaced,
destroyed, lost or stolen.
The Indenture provides that, (a) if an Event of Default (as
defined in the Indenture) due to the default (i) in payment of
principal or premium, if any, on any series of debt securities or (ii)
in the payment of any installment of interest upon any series of debt
securities continuing for a period of 30 days, including the series of
Medium-Term Notes of which this Note forms a part, or due to the
default in the performance or breach of any other covenant or warranty
of the Issuer applicable to the debt securities of such series but not
applicable to all outstanding debt securities issued under the
Indenture shall have occurred and be continuing for a period of 60
days, either the Trustee or the holders of not less than 25% in
aggregate principal amount of the debt securities of such affected
series may then declare the principal of all debt securities of all
such series and interest accrued thereon to be due and payable
immediately and (b) if an Event of Default due to a default in the
performance of any other of the covenants or agreements in the
Indenture applicable to the debt securities of such series, including
this Note, shall have occurred and be continuing for a period of 60
days after the date on which written notice specifying such failure
and requiring the Company to remedy the same shall have been given,
either the Trustee or the holders of not less than 25% in principal
amount of the debt securities of such series may declare the principal
of all such debt securities and interest accrued thereon to be due and
payable immediately, but upon certain conditions such declarations may
be annulled and past defaults may be waived (except a continuing
default in payment of principal (or premium, if any) or interest on
such debt securities) by the holders of a majority in principal amount
of the debt securities of all affected series then outstanding.
<PAGE> 15
15
If the face hereof provides that this Note is subject to
"Modified Payment upon Acceleration," then (i) if the principal hereof
is declared to be due and payable as described in the preceding
paragraph, the amount of principal due and payable with respect to
this Note shall be limited to the aggregate principal amount hereof
multiplied by the sum of the Issue Price specified on the face hereof
(expressed as a percentage of the aggregate principal amount) plus the
original issue discount amortized from the Interest Accrual Date to
the date of declaration, which amortization shall be calculated using
the "interest method" (computed in accordance with generally accepted
accounting principles in effect on the date of declaration), (ii) for
the purpose of any vote of securityholders taken pursuant to the
Indenture prior to the acceleration of payment of this Note, the
principal amount hereof shall equal the amount that would be due and
payable hereon, calculated as set forth in clause (i) above, if this
Note were declared to be due and payable on the date of any such vote
and (iii) for the purpose of any vote of securityholders taken
pursuant to the Indenture following the acceleration of payment of
this Note, the principal amount hereof shall equal the amount of
principal due and payable with respect to this Note, calculated as set
forth in clause (i) above.
The Indenture permits the Issuer and the Trustee, with the
consent of the holders of not less than a majority in aggregate
principal amount of the debt securities of all series issued under the
Indenture then outstanding and affected by such supplemental indenture
(voting as one class), to execute supplemental indentures adding any
provisions to or changing in any manner or eliminating any of the
provisions of the Indenture or modifying in any manner the rights of
the holders of each series so affected; provided that no such
supplemental indenture may, without the consent of the holder of
each outstanding debt security affected thereby, (i) reduce the
percentage in principal amount of Debt Securities of any series whose
Holders must consent to an amendment; (ii) reduce the rate of or
extend the time for payment of interest on any Debt Security or
<PAGE> 16
16
Coupon or reduce the amount of any payment to be made with respect to
any Coupon; (iii) reduce the principal of or extend the Stated
Maturity of any Debt Security; (iv) reduce the premium payable upon
the redemption of any Debt Security or change the time at which any
Debt Security may or shall be redeemed in accordance with Article III
of the Indenture; (v) make any Debt Security or Coupon payable in
Currency other than that stated in the Debt Security; (vi) make any
change in Section 6.06 or Section 9.02 of the Indenture; or (vii)
limit the obligation of the Company to maintain a paying agency
outside the United States for payment on Bearer Securities as provided
in Section 4.02 of the Indenture.
Except as set forth below, if the principal of, premium, if
any, or interest on, this Note is payable in a Specified Currency
other than U.S. dollars and such Specified Currency is not available
to the Issuer for making payments hereon due to the imposition of
exchange controls or other circumstances beyond the control of the
Issuer or is no longer used by the government of the country issuing
such currency or for the settlement of transactions by public
institutions within the international banking community, then the
Issuer will be entitled to satisfy its obligations to the holder of
this Note by making such payments in U.S. dollars on the basis of the
Market Exchange Rate on the date of such payment or, if the Market
Exchange Rate is not available on such date, as of the most recent
practicable date. Any payment made under such circumstances in U.S.
dollars where the required payment is in a Specified Currency other
than U.S. dollars will not constitute an Event of Default.
If payment in respect of this Note is required to be made in
ECUs and ECUs are unavailable due to the imposition of exchange
controls or other circumstances beyond the Issuer's control or are no
longer used as either the unit of account of the European Community or
as the currency of the European Union, then all payments in respect of
this Note shall be made in U.S. dollars until ECUs are
<PAGE> 17
17
again available or so used. The amount of each payment in U.S.
dollars shall be computed on the basis of the equivalent of the ECU in
U.S. dollars, determined as described below, as of the second Business
Day prior to the date on which such payment is due.
The equivalent of the ECU in U.S. dollars as of any date shall
be determined by the Issuer or its agent on the following basis. The
component currencies of the ECU for this purpose (the "Components")
shall be the currency amounts that were components of the ECU as of
the last date on which the ECU was used as the unit of account of the
European Community. The equivalent of the ECU in U.S. dollars shall
be calculated by aggregating the U.S. dollar equivalents of the
Components. The U.S. dollar equivalent of each of the Components
shall be determined by the Issuer or such agent on the basis of the
most recently available Market Exchange Rates for such Components.
All determinations referred to above made by the Issuer or its
agent shall be at its sole discretion and shall, in the absence of
manifest error, be conclusive to the extent permitted by law for all
purposes and binding on the holder of this Note.
So long as this Note shall be outstanding, the Issuer will
cause to be maintained an office or agency for the payment of the
principal of and premium, if any, and interest on this Note as herein
provided in the Borough of Manhattan, The City of New York, and an
office or agency in said Borough of Manhattan for the registration,
transfer and exchange as aforesaid of the Notes. The Issuer may
designate other agencies for the payment of said principal, premium
and interest at such place or places (subject to applicable laws and
regulations) as the Issuer may decide. So long as there shall be such
an agency, the Issuer shall keep the Trustee advised of the names and
locations of such agencies, if any are so designated.
<PAGE> 18
18
With respect to moneys paid by the Issuer and held by the
Trustee or any Paying Agent for payment of the principal of or
interest or premium, if any, on any Notes that remain unclaimed at the
end of two years after such principal, interest or premium shall have
become due and payable (whether at maturity or upon call for
redemption or otherwise), (i) the Trustee or such Paying Agent shall
notify the holders of such Notes that such moneys shall be repaid to
the Issuer, upon the Issuer's written request, and any person claiming
such moneys shall thereafter look only to the Issuer for payment
thereof and (ii) such moneys shall be so repaid, upon the Issuer's
written request, to the Issuer. Upon such repayment all liability of
the Trustee or such Paying Agent with respect to such moneys shall
thereupon cease, without, however, limiting in any way any obligation
that the Issuer may have to pay the principal of or interest or
premium, if any, on this Note as the same shall become due.
No provision of this Note or of the Indenture shall alter or
impair the obligation of the Issuer, which is absolute and
unconditional, to pay the principal of, premium, if any, and interest
on this Note at the time, place, and rate, and in the coin or
currency, herein prescribed unless otherwise agreed between the Issuer
and the registered holder of this Note.
Prior to due presentment of this Note for registration of
transfer, the Issuer, the Trustee and any agent of the Issuer or the
Trustee may treat the holder in whose name this Note is registered as
the owner hereof for all purposes, whether or not this Note shall be
overdue, and none of the Issuer, the Trustee or any such agent shall
be affected by notice to the contrary.
No recourse shall be had for the payment of the principal of,
premium, if any, or the interest on this Note, for any claim based
hereon, or otherwise in respect hereof, or based on or in respect of
the Indenture or any indenture supplemental thereto, against any
incorporator, shareholder,
<PAGE> 19
19
officer or director, as such, past, present or future, of the Issuer
or of any successor corporation, either directly or through the Issuer
or any successor corporation, whether by virtue of any constitution,
statute or rule of law or by the enforcement of any assessment or
penalty or otherwise, all such liability being, by the acceptance
hereof and as part of the consideration for the issue hereof,
expressly waived and released.
This Note shall for all purposes be governed by, and construed
in accordance with, the laws of the State of New York without regard
to conflicts of laws principles thereof.
All terms used in this Note which are defined in the Indenture
and not otherwise defined herein shall have the meanings assigned to
them in the Indenture.
<PAGE> 20
20
ABBREVIATIONS
The following abbreviations, when used in the inscription on
the face of this instrument, shall be construed as though they were
written out in full according to applicable laws or regulations.
TEN COM-as tenants in common
TEN ENT-as tenants by the entireties
JT TEN-as joint tenants with right of survivorship and not as tenants
in common
UNIF GIFT MIN ACT- Custodian
---------------------------------------
(Cust) (Minor)
Under Uniform Gifts to Minors Act
-----------------
(State)
Additional abbreviations may also be used though not in the
above list.
_________________
<PAGE> 21
21
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
[PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE]
__________________________________________!
!
__________________________________________!
[PLEASE PRINT OR TYPE NAME AND ADDRESS INCLUDING ZIP CODE,
OF ASSIGNEE]
_____________________________________________________________
the within Note and all rights thereunder, hereby irremovably
_____________________________________________________________
constituting and appointing such person attorney to transfer
_____________________________________________________________
such note on the books of the Issuer, with full power of
____________________________________________________________
substitution in the premises.
Dated:__________________________
NOTICE: The signature to this assignment must correspond with the name
as written upon the face of the within Note in every
particular without alteration or enlargement or any change
whatsoever.
<PAGE> 22
22
Signature guarantee:________________________________________
<PAGE> 23
23
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the
Issuer to repay the within Note (or portion thereof specified below)
pursuant to its terms at a price equal to the principal amount
thereof, together with interest to the Optional Repayment Date, to the
undersigned at
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
(Please print or typewrite
name and address of the undersigned)
If less than the entire principal amount of the within Notes
is to be repaid, specify the portion thereof which the holder elects
to have repaid: ___________________; and specify the denomination or
denominations (which shall not be less than the minimum authorized
denomination) of the Notes to be issued to the holder for the portion
of the within Note not being repaid (in the absence of any such
specification, one such note will be issued for the portion not being
repaid): ____________________________.
Dated: ___________ ___________________________________
NOTICE: The signature on this Option to
Elect Repayment must correspond with
the name as written upon the face of the
within
<PAGE> 24
24
instrument in every particular without
alteration or enlargement.
Signature guarantee:________________________________________
<PAGE> 1
[Draft--5/17/96]
[FORM OF FACE OF SECURITY]
Floating Rate Note
REGISTERED REGISTERED
No. FLR [PRINCIPAL AMOUNT]
CUSIP: *
Unless this certificate is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New York, New
York) to the issuer or its agent for registration of transfer, exchange or
payment, and any certificate issued is registered in the name of Cede & Co. or
such other name as requested by an authorized representative of The Depository
Trust Company and any payment is made to Cede & Co., ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since
the registered owner hereof, Cede & Co., has an interest herein.
IF APPLICABLE, THE "TOTAL AMOUNT OF OID," "ORIGINAL YIELD TO
MATURITY" AND "INITIAL ACCRUAL PERIOD OID" (COMPUTED UNDER THE
APPROXIMATE METHOD) SET FORTH BELOW HAVE BEEN COMPLETED SOLELY
FOR THE PURPOSE OF APPLYING THE FEDERAL INCOME TAX ORIGINAL
ISSUE DISCOUNT ("OID") RULES.
<TABLE>
=====================================================================================================
Cox Communications, Inc.
MEDIUM-TERM NOTE
(Floating Rate)
- -----------------------------------------------------------------------------------------------------
<S> <C> <C>
BASE RATE: ORIGINAL ISSUE DATE: MATURITY DATE:
- -----------------------------------------------------------------------------------------------------
INDEX MATURITY: INTEREST ACCRUAL DATE: INTEREST PAYMENT DATE(S):
- -----------------------------------------------------------------------------------------------------
</TABLE>
______________________________
*Applies only if this Note is a Registered Global Security.
<PAGE> 2
<TABLE>
=====================================================================================================
Cox Communications, Inc.
MEDIUM-TERM NOTE
(Floating Rate)
- -----------------------------------------------------------------------------------------------------
<S> <C> <C>
SPREAD (PLUS OR MINUS): INITIAL INTEREST RATE: INTEREST PAYMENT PERIOD:
- -----------------------------------------------------------------------------------------------------
ALTERNATE RATE EVENT SPREAD: INITIAL INTEREST RESET DATE: INTEREST RESET PERIOD:
- -----------------------------------------------------------------------------------------------------
SPREAD MULTIPLIER: MAXIMUM INTEREST RATE: INTEREST RESET DATES:
- -----------------------------------------------------------------------------------------------------
REPORTING SERVICE: MINIMUM INTEREST RATE: CALCULATION AGENT:
- -----------------------------------------------------------------------------------------------------
INITIAL REDEMPTION DATE: SPECIFIED CURRENCY:
- -----------------------------------------------------------------------------------------------------
INDEX CURRENCY: INITIAL REDEMPTION PERCENTAGE: TOTAL AMOUNT OF OID:
- -----------------------------------------------------------------------------------------------------
ANNUAL REDEMPTION PERCENTAGE ORIGINAL YIELD TO MATURITY:
REDUCTION:
- -----------------------------------------------------------------------------------------------------
OTHER PROVISIONS: OPTIONAL REPAYMENT DATE(S): INITIAL ACCRUAL PERIOD OID:
=====================================================================================================
</TABLE>
Cox Communications, Inc., a Delaware corporation (together
with its successors and assigns, the "Issuer"), for value received, hereby
promises to pay to
, or registered assignees, the principal sum of
on the Maturity Date specified above (except to the extent redeemed or repaid
prior to the Maturity Date) and to pay interest thereon, from the Interest
Accrual Date specified above at a rate per annum equal to the Initial Interest
Rate specified above until the Initial Interest Reset Date specified above, and
thereafter at a rate per annum determined in accordance with the provisions
specified on
<PAGE> 3
3
the reverse hereof until the principal hereof is paid or duly made available
for payment. The Issuer will pay interest in arrears monthly, quarterly,
semiannually or annually as specified above as the Interest Payment Period on
each Interest Payment Date (as specified above), commencing with the first
Interest Payment Date next succeeding the Interest Accrual Date specified
above, and on the Maturity Date (or any redemption or repayment date);
provided, however, that if the Interest Accrual Date occurs between a Record
Date, as defined below, and the next succeeding Interest Payment Date, interest
payments will commence on the second Interest Payment Date succeeding the
Interest Accrual Date to the registered holder of this Note on the Record Date
with respect to such second Interest Payment Date; and provided, further, that
if an Interest Payment Date (other than the Maturity Date or redemption or
repayment date) would fall on a day that is not a Business Day, as defined on
the reverse hereof, such Interest Payment Date shall be the following day that
is a Business Day, except that if the Base Rate specified above is LIBOR and
such next Business Day falls in the next calendar month, such Interest Payment
Date shall be the immediately preceding day that is a Business Day; and
provided, further, that if the Maturity Date or redemption or repayment date
would fall on a day that is not a Business Day, such payment shall be made on
the following day that is a Business Day and no interest shall accrue for the
period from and after such Maturity Date or redemption or repayment date.
Interest on this Note will accrue from the most recent date to
which interest has been paid or duly provided for, or, if no interest has been
paid or duly provided for, from the Interest Accrual Date, until the principal
hereof has been paid or duly made available for payment. The interest so
payable, and punctually paid or duly provided for, on any Interest Payment Date
will, subject to certain exceptions described herein, be paid to the person in
whose name this Note (or one or more predecessor Notes) is registered at the
close of business on the date 15 calendar days prior to such Interest Payment
Date (whether or not a
<PAGE> 4
4
Business Day) (each such date a "Record Date"); provided, however, that
interest payable on the Maturity Date (or any redemption or repayment date)
will be payable to the person to whom the principal hereof shall be payable.
Payment of the principal of this Note, any premium and the
interest due at the Maturity Date (or any redemption or repayment date) will be
made in immediately available funds upon surrender of this Note at the office
or agency of the Paying Agent, as defined on the reverse hereof, maintained for
that purpose in the Borough of Manhattan, The City of New York, or at such
other paying agency as the Issuer may determine. Payment of the principal of
and premium, if any, and interest on this Note will be made in the Specified
Currency indicated above; provided, however, that U.S. dollar payments of
interest, other than interest due at maturity or any date of redemption or
repayment, will be made by U.S. dollar check mailed to the address of the
person entitled thereto as such address shall appear in the Note register. A
holder of U.S. $10,000,000 or more in aggregate principal amount of Notes
having the same Interest Payment Date will be entitled to receive payments of
interest, other than interest due at maturity or any date of redemption or
repayment, by wire transfer of immediately available funds if appropriate wire
transfer instructions have been received by the Paying Agent in writing not
less than 15 calendar days prior to the applicable Interest Payment Date. If
this Note is denominated in a Specified Currency other than U.S. dollars,
payments of interest hereon will be made by wire transfer of immediately
available funds to an account maintained by the holder hereof with a bank
located outside the United States if appropriate wire transfer instructions
have been received by the Paying Agent in writing not less than 15 calendar
days prior to the applicable Interest Payment Date. If such wire transfer
instructions are not so received, such interest payments will be made by check
payable in such Specified Currency mailed to the address of the person entitled
thereto as such address shall appear in the Note register.
<PAGE> 5
5
Reference is hereby made to the further provisions of this
Note set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by manual signature,
this Note shall not be entitled to any benefit under the Indenture, as defined
on the reverse hereof, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly
executed under its corporate seal.
COX COMMUNICATIONS, INC.
By ____________________________
Title:
By ____________________________
Title:
DATED:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Notes
referred to in the within-
mentioned Indenture.
THE BANK OF NEW YORK, as Trustee
By____________________________
Authorized Signatory
<PAGE> 6
6
[FORM OF REVERSE OF SECURITY]
This Note is one of a duly authorized issue of Medium-Term
Notes, having maturities more than nine months from the date of issue (the
"Notes") of the Issuer. The Notes are issuable under an Indenture, dated as of
June 27, 1995 (the "Indenture"), between the Issuer and The Bank of New York,
as Trustee (the "Trustee", which term includes any successor trustee under the
Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities of the Issuer, the Trustee and holders of the
Notes and the terms upon which the Notes are, and are to be, authenticated and
delivered. The Issuer has appointed The Bank of New York and its principal
corporate trust office in The City of New York as the paying agent (the "Paying
Agent," which term includes any additional or successor Paying Agent appointed
by the Issuer) with respect to the Notes. The terms of individual Notes may
vary with respect to interest rates, interest rate formulas, issue dates,
maturity dates, or otherwise, all as provided in the Indenture. To the extent
not inconsistent herewith, the terms of the Indenture are hereby incorporated
by reference herein.
This Note will not be subject to any sinking fund and, unless
otherwise provided on the face hereof in accordance with the provisions of the
following two paragraphs, will not be redeemable or subject to repayment at the
option of the holder prior to maturity.
Unless otherwise indicated on the face of this Note, this Note
may not be redeemed prior to the Maturity Date. If so indicated on the face of
this Note, this Note may be redeemed in whole or in part at the option of the
Issuer on or after the Initial Redemption Date specified on the face hereof on
the terms set forth on the face hereof, together with interest accrued and
unpaid hereon to the date of redemption. If this Note is subject to "Annual
<PAGE> 7
7
Redemption Percentage Reduction," the Initial Redemption Percentage indicated
on the face hereof will be reduced on each anniversary of the Initial
Redemption Date by the Annual Redemption Percentage Reduction specified on the
face hereof until the redemption price of this Note is 100% of the principal
amount hereof, together with interest accrued and unpaid hereon to the date of
redemption. Notice of redemption shall be mailed to the registered holders of
the Notes designated for redemption at their addresses as the same shall appear
on the Note register not less than 30 nor more than 60 days prior to the date
fixed for redemption, subject to all the conditions and provisions of the
Indenture. In the event of redemption of this Note in part only, a new Note or
Notes for the amount of the unredeemed portion hereof shall be issued in the
name of the holder hereof upon the cancellation hereof.
Unless otherwise indicated on the face of this Note, this Note
shall not be subject to repayment at the option of the holder prior to the
Maturity Date. If so indicated on the face of this Note, this Note will be
subject to repayment at the option of the holder on the Optional Repayment Date
or Dates specified on the face hereof on the terms set forth herein. On any
Optional Repayment Date, this Note will be repayable in whole or in part in
increments of $1,000 or, if this Note is denominated in a Specified Currency
other than U.S. dollars, in increments of 1,000 units of such Specified
Currency (provided that any remaining principal amount hereof shall not be less
than the minimum authorized denomination hereof) at the option of the holder
hereof at a price equal to 100% of the principal amount to be repaid, together
with interest accrued and unpaid hereon to the date of repayment. For this
Note to be repaid at the option of the holder hereof, the Paying Agent must
receive at its corporate trust office in the Borough of Manhattan, The City of
New York, at least 15 but not more than 30 days prior to the date of repayment,
(i) this Note with the form entitled "Option to Elect Repayment" below duly
completed or (ii) a facsimile transmission or a letter from a member of a
national
<PAGE> 8
8
securities exchange or the National Association of Securities Dealers, Inc. or
a commercial bank or a trust company in the United States setting forth the
name of the holder of this Note, the principal amount hereof, the certificate
number of this Note or a description of this Note's tenor and terms, the
principal amount hereof to be repaid, a statement that the option to elect
repayment is being exercised thereby and a guarantee that this Note, together
with the form entitled "Option to Elect Repayment" duly completed, will be
received by the Paying Agent not later than the fifth Business Day after the
date of such facsimile transmission or letter; provided, that such facsimile
transmission or letter shall only be effective if this Note and form duly
completed are received by the Paying Agent by such fifth Business Day.
Exercise of such repayment option by the holder hereof shall be irrevocable.
In the event of repayment of this Note in part only, a new Note or Notes for
the amount of the unpaid portion hereof shall be issued in the name of the
holder hereof upon the cancellation hereof.
This Note will bear interest at the rate determined in
accordance with the applicable provisions below by reference to the Base Rate
shown on the face hereof based on the Index Maturity, if any, shown on the face
hereof (i) plus or minus the Spread, if any, and/or (ii) multiplied by the
Spread Multiplier, if any, specified on the face hereof. Commencing with the
Initial Interest Reset Date specified on the face hereof, the rate at which
interest on this Note is payable shall be reset as of each Interest Reset Date
(as used herein, the term "Interest Reset Date" shall include the Initial
Interest Reset Date). The Interest Reset Dates will be the Interest Reset
Dates specified on the face hereof; provided, however, that the interest rate
in effect for the period from the Interest Accrual Date to the Initial Interest
Reset Date will be the Initial Interest Rate. If any Interest Reset Date would
otherwise be a day that is not a Business Day, such Interest Reset Date shall
be postponed to the next succeeding day that is a Business Day, except that if
the Base Rate
<PAGE> 9
9
specified on the face hereof is LIBOR and such Business Day is in the next
succeeding calendar month, such Interest Reset Date shall be the next preceding
Business Day. As used herein, "Business Day" means any day, other than a
Saturday or Sunday, that is neither a legal holiday nor a day on which banking
institutions are authorized or required by law or regulation to close in The
City of New York and (i) if this Note bears interest calculated by reference to
LIBOR that is also a London Banking Day, (ii) if this Note is denominated in a
Specified Currency other than U.S. dollars, Australian dollars or ECUs, in the
principal financial center of the country of the Specified Currency, (iii) if
this Note is denominated in Australian dollars, in Sydney and (iv) if this Note
is denominated in ECUs, that is not a non-ECU clearing day, as determined by
the ECU Banking Association in Paris.
The Interest Determination Date pertaining to an Interest
Reset Date for Notes bearing interest calculated by reference to the CD Rate,
Commercial Paper Rate, Federal Funds Rate, Prime Rate and CMT Rate will be the
second Business Day next preceding such Interest Reset Date. The Interest
Determination Date pertaining to an Interest Reset Date for Notes bearing
interest calculated by reference to LIBOR shall be the second London Banking
Day preceding such Interest Reset Date. As used herein, "London Banking Day"
means any day on which dealings in deposits in the Index Currency (as defined
herein) are transacted in the London interbank market. The Interest
Determination Date pertaining to an Interest Reset Date for Notes bearing
interest calculated by reference to the Treasury Rate shall be the day of the
week in which such Interest Reset Date falls on which Treasury bills normally
would be auctioned; provided, however, that if as a result of a legal holiday
an auction is held on the Friday of the week preceding such Interest Reset
Date, the related Interest Determination Date shall be such preceding Friday;
and provided, further, that if an auction shall fall on any Interest Reset
Date, then the Interest Reset Date shall instead be the first Business Day
following the date of such auction.
<PAGE> 10
10
Unless otherwise specified on the face hereof, the
"Calculation Date" pertaining to an Interest Determination Date will be the
earlier of (i) the tenth calendar day after such Interest Determination Date
or, if such day is not a Business Day, the next succeeding Business Day, or
(ii) the Business Day preceding the applicable Interest Payment Date or
Maturity Date (or, with respect to any principal amount to be redeemed or
repaid, any redemption or repayment date), as the case may be.
Determination of CD Rate. If the Base Rate specified on the
face hereof is the CD Rate, the CD Rate with respect to this Note shall be
determined on each Interest Determination Date and shall be the rate on such
date for negotiable certificates of deposit having the Index Maturity specified
on the face hereof as published by the Board of Governors of the Federal
Reserve System in "Statistical Release H.15(519), Selected Interest Rates," or
any successor publication of the Board of Governors of the Federal Reserve
System ("H.15(519)"), under the heading "CDs (Secondary Market)," or, if not so
published by 9:00 A.M., New York City time, on the Calculation Date pertaining
to such Interest Determination Date, the CD Rate will be the rate on such
Interest Determination Date for negotiable certificates of deposit of the Index
Maturity specified on the face hereof as published by the Federal Reserve Bank
of New York in its daily statistical release "Composite 3:30 P.M. Quotations
for U.S. Government Securities" ("Composite Quotations") under the heading
"Certificates of Deposit." If neither of such rates is published by 3:00 P.M.,
New York City time, on such Calculation Date, then the CD Rate on such Interest
Determination Date will be calculated by the Calculation Agent referred to on
the face hereof and will be the arithmetic mean of the secondary market offered
rates as of 10:00 A.M., New York City time, on such Interest Determination Date
for certificates of deposit in the denomination of U.S. $5,000,000 with a
remaining maturity closest to the Index Maturity specified on the face hereof
of three leading nonbank dealers in negotiable U.S. dollar certificates of
deposit in The City
<PAGE> 11
11
of New York selected by the Calculation Agent for negotiable certificates of
deposit with a remaining maturity closest to the Index Maturity specified on
the face hereof in an amount that is representative for a single transaction in
that market at that time; provided, however, that if the dealers selected as
aforesaid by the Calculation Agent are not quoting as mentioned in this
sentence, the CD Rate in effect for the applicable period will be the same as
the CD Rate for the immediately preceding Interest Reset Period (or, if there
was no such Interest Reset Period, the rate of interest payable hereon shall be
the Initial Interest Rate).
Determination of Commercial Paper Rate. If the Base Rate
specified on the face hereof is the Commercial Paper Rate, the Commercial Paper
Rate with respect to this Note shall be determined on each Interest
Determination Date and shall be the Money Market Yield (as defined herein) of
the rate on such date for commercial paper having the Index Maturity specified
on the face hereof, as such rate shall be published in H.15(519) under the
heading "Commercial Paper," or if not so published prior to 9:00 A.M., New York
City time, on the Calculation Date pertaining to such Interest Determination
Date, the Commercial Paper Rate shall be the Money Market Yield of the rate on
such Interest Determination Date for commercial paper of the Index Maturity
specified on the face hereof as published in Composite Quotations under the
heading "Commercial Paper." If neither of such rates is published by 3:00
P.M., New York City time, on such Calculation Date, then the Commercial Paper
Rate shall be the Money Market Yield of the arithmetic mean of the offered
rates as of 11:00 A.M., New York City time, on such Interest Determination Date
of three leading dealers in commercial paper in The City of New York selected
by the Calculation Agent for commercial paper of the Index Maturity specified
on the face hereof, placed for an industrial issuer whose bond rating is "AA,"
or the equivalent, from a nationally recognized rating agency; provided,
however, that if the dealers selected as aforesaid by the Calculation Agent are
not quoting as mentioned in this sentence, the Commercial Paper Rate in effect
for the
<PAGE> 12
12
applicable period will be the same as the Commercial Paper Rate for the
immediately preceding Interest Reset Period (or, if there was no such Interest
Reset Period, the rate of interest payable hereon shall be the Initial Interest
Rate).
"Money Market Yield" shall be the yield calculated in
accordance with the following formula:
Money Market Yield = D X 360
------------- X 100
360 - (D X M)
where "D" refers to the applicable per annum rate for commercial paper quoted
on a bank discount basis and expressed as a decimal and "M" refers to the
actual number of days in the Index Maturity specified on the face hereof.
Determination of Federal Funds Rate. If the Base Rate
specified on the face hereof is the Federal Funds Rate, the Federal Funds Rate
with respect to this Note shall be determined on each Interest Determination
Date and shall be the rate on such date for Federal Funds as published in
H.15(519) under the heading "Federal Funds (Effective)," or, if not so
published by 9:00 A.M., New York City time, on the Calculation Date pertaining
to such Interest Determination Date, the Federal Funds Rate will be the rate on
such Interest Determination Date as published in Composite Quotations under the
heading "Federal Funds/Effective Rate." If neither of such rates is published
by 3:00 P.M., New York City time, on such Calculation Date, the Federal Funds
Rate for such Interest Determination Date will be calculated by the Calculation
Agent and will be the arithmetic mean of the rates for the last transaction in
overnight Federal funds as of 11:00 A.M., New York City time, on such Interest
Determination Date arranged by three leading brokers in Federal funds
transactions in The City of New York selected by the Calculation Agent;
provided, however, that if the brokers selected as aforesaid by the Calculation
Agent are not quoting as mentioned in this sentence, the Federal Funds Rate in
effect for the applicable period will be the same as
<PAGE> 13
13
the Federal Funds Rate for the immediately preceding Interest Reset Period (or,
if there was no such Interest Reset Period, the rate of interest payable hereon
shall be the Initial Interest Rate).
Determination of LIBOR. If the Base Rate specified on the
face hereof is LIBOR, LIBOR with respect to this Note shall be determined on
each Interest Determination Date as follows:
(i) As of the Interest Determination Date, the Calculation
Agent will determine (a) if "LIBOR Reuters" is specified as the
Reporting Service on the face hereof, the arithmetic mean of the
offered rates (unless the specified Designated LIBOR Page (as defined
below) by its terms provides only for a single rate, in which case
such single rate shall be used) for deposits in the London interbank
market in the Index Currency for the period of the Index Maturity
specified on the face hereof, commencing on the second London Banking
Day immediately following such Interest Determination Date, which
appear on the Designated LIBOR Page at approximately 11:00 A.M.,
London time, on such Interest Determination Date, if at least two such
offered rates appear (unless, as aforesaid, only a single rate is
required) on such Designated LIBOR Page, or (b) if "LIBOR Telerate" is
specified as the Reporting Service on the face hereof, the rate for
deposits in the Index Currency for the period of the Index Maturity,
commencing on such Interest Determination Date, that appears on the
Designated LIBOR Page at approximately 11:00 A.M., London time, on
such Interest Determination Date. If fewer than two offered rates
appear (if "LIBOR Reuters" is specified as the Reporting Service on
the face hereof and calculation of LIBOR is based on the arithmetic
mean of the offered rates) or if no rate appears (if the Reporting
Service on the face hereof specifies either (x) "LIBOR Reuters" and
the designated LIBOR Page by its terms provides only for a single rate
or (y) "LIBOR Telerate"), LIBOR in respect of that
<PAGE> 14
14
Interest Determination Date will be determined as if the parties had
specified the rate described in (ii) below.
(ii) With respect to an Interest Determination Date on which
fewer than two offered rates appear (if "LIBOR Reuters" is specified
as the Reporting Service on the face hereof and calculation of LIBOR
is based on the arithmetic mean of the offered rates) or no rate
appears (if the Reporting Service on the face hereof specifies either
(x) "LIBOR Reuters" and the Designated LIBOR Page by its terms
provides only for a single rate or (y) "LIBOR Telerate"), the
Calculation Agent will request the principal London offices of each of
four major reference banks in the London interbank market, as selected
by the Calculation Agent (after consultation with the Issuer), to
provide the Calculation Agent with its offered quotations for deposits
in the Index Currency for the period of the Index Maturity specified
on the face hereof, commencing on the second London Banking Day
immediately following such Interest Determination Date, to prime banks
in the London interbank market at approximately 11:00 A.M., London
time, on such Interest Determination Date and in a principal amount
equal to an amount of not less than U.S.$1 million (or the equivalent
in the Index Currency) that is representative of a single transaction
in such Index Currency in such market at such time. If at least two
such quotations are provided, LIBOR will be the arithmetic mean of
such quotations. If fewer than two quotations are provided, LIBOR in
respect of that Interest Determination Date will be the arithmetic
mean of rates quoted at approximately 11:00 A.M. (or such other time
specified on the face hereof), in the applicable principal financial
center for the country of the Index Currency on such Interest
Determination Date, by three major banks in such principal financial
center selected by the Calculation Agent (after consultation with the
Issuer) on such Interest Determination Date for loans
<PAGE> 15
15
in the Index Currency to leading European banks, for the period of the
Index Maturity specified on the face hereof commencing on the second
London Banking Day immediately following such Interest Determination
Date and in a principal amount of not less than U.S.$1 million (or the
equivalent in the Index Currency) that is representative of a single
transaction in such Index Currency in such market at such time;
provided, however, that if the banks selected as aforesaid by the
Calculation Agent are not quoting rates as mentioned in this sentence,
"LIBOR" for such Interest Reset Period will be the same as LIBOR for
the immediately preceding Interest Reset Period (or, if there was no
such Interest Reset Period, the rate of interest payable on the LIBOR
Notes for which LIBOR is being determined shall be the Initial
Interest Rate). "Index Currency" means the currency (including
composite currencies) specified as Index Currency on the face hereof.
If no such currency is specified as Index Currency on the face hereof,
the Index Currency shall be U.S. dollars. "Designated LIBOR Page"
means either (a) if "LIBOR Reuters" is designated as the Reporting
Service on the face hereof, the display on the Reuters Monitor Money
Rates Service for the purpose of displaying the London interbank rates
of major banks for the applicable Index Currency, or (b) if "Libor
Telerate" is designated as the Reporting Service on the face hereof,
the display on the Dow Jones Telerate Service for the purpose of
displaying the London interbank rates of major banks for the
applicable Index Currency. If neither LIBOR Reuters nor LIBOR
Telerate is specified as the Reporting Service on the face hereof,
LIBOR for the applicable Index Currency will be determined as if LIBOR
Telerate (and, if the U.S. dollar is the Index Currency, Page 3750)
had been specified.
Determination of Prime Rate. If the Base Rate specified on
the face hereof is the Prime Rate, the Prime Rate with respect to this Note
shall be determined on each
<PAGE> 16
16
Interest Determination Date and shall be the rate set forth in H.15(519) for
such date opposite the caption "Bank Prime Loan." If such rate is not yet
published by 9:00 A.M., New York City time, on the Calculation Date pertaining
to such Interest Determination Date, the Prime Rate for such Interest
Determination Date will be the arithmetic mean of the rates of interest
publicly announced by each bank named on the Reuters Screen USPRIME1 Page (as
defined below) as such bank's prime rate or base lending rate as in effect for
such Interest Determination Date as quoted on the Reuters Screen USPRIME1 on
such Interest Determination Date, or, if fewer than four such rates appear on
the Reuters Screen USPRIME1 for such Interest Determination Date, the rate
shall be the arithmetic mean of the prime rates quoted on the basis of the
actual number of days in the year divided by 360 as of the close of business on
such Interest Determination Date by at least two of the three major money
center banks in The City of New York selected by the Calculation Agent from
which quotations are requested. If fewer than two quotations are provided, the
Prime Rate shall be calculated by the Calculation Agent and shall be determined
as the arithmetic mean on the basis of the prime rates in The City of New York
by the appropriate number of substitute banks or trust companies organized and
doing business under the laws of the United States, or any State thereof, in
each case having total equity capital of at least U.S. $500 million and being
subject to supervision or examination by Federal or State authority, selected
by the Calculation Agent to quote such rate or rates. "Reuters Screen
USPRIME1" means the display designated as Page "USPRIME1" on the Reuters
Monitor Money Rates Service (or such other page as may replace the USPRIME1 on
that Service for the purpose of displaying prime rates or base lending rates of
major United States banks).
If in any month or two consecutive months the Prime Rate is
not published in H.15(519) and the banks or trust companies selected as
aforesaid are not quoting as mentioned in the preceding paragraph, the "Prime
Rate" for such Interest Reset Period will be the same as the Prime
<PAGE> 17
17
Rate for the immediately preceding Interest Reset Period (or, if there was no
such Interest Reset Period, the rate of interest payable hereon shall be the
Initial Interest Rate). If this failure continues over three or more
consecutive months, the Prime Rate for each succeeding Interest Determination
Date until the maturity or redemption or repayment of this Note or, if earlier,
until this failure ceases, shall be LIBOR determined as if the Base Rate
specified on the face hereof were LIBOR, as if LIBOR Telerate had been
specified as the Reporting Service and U.S. dollars had been specified as the
Index Currency and the Spread, if any, shall be the number of basis points
specified on the face hereof as the "Alternate Rate Event Spread."
Determination of Treasury Rate. If the Base Rate specified on
the face hereof is the Treasury Rate, the Treasury Rate with respect to this
Note shall be determined on each Interest Determination Date and shall be the
rate for the auction held on such date of direct obligations of the United
States ("Treasury Bills") having the Index Maturity specified on the face
hereof, as published in H.15(519) under the heading "Treasury Bills--auction
average ("investment)," or if not so published by 9:00 A.M., New York City
time, on the Calculation Date pertaining to such Interest Determination Date,
the auction average rate on such Interest Determination Date (expressed as a
bond equivalent, on the basis of a year of 365 or 366 days, as applicable, and
applied on a daily basis) as otherwise announced by the United States
Department of the Treasury Bills having the Index Maturity specified on the
face hereof are not published or reported as provided above by 3:00 P.M., New
York City time, on such Calculation Date or if no such auction is held on such
Interest Determination Date, then the Treasury Rate shall be calculated by the
Calculation Agent and shall be a yield to maturity (expressed as a bond
equivalent, on the basis of a year of 365 or 366 days, as applicable, and
applied on a daily basis) calculated using the arithmetic mean of the secondary
market bid rates, as of approximately 3:30 P.M., New York
<PAGE> 18
18
City time, on such Interest Determination Date, of three leading primary United
States government securities dealers selected by the Calculation Agent for the
issue of Treasury Bills with a remaining maturity closest to the Index Maturity
specified on the face hereof; provided, however, that if the dealers selected
as aforesaid by the Calculation Agent are not quoting as mentioned in this
sentence, the Treasury Rate for such Interest Reset Date will be the same as
the Treasury Rate for the immediately preceding Interest Reset Period (or, if
there was no such Interest Reset Period, the rate of interest payable hereon
shall be the Initial Interest Rate).
Determination of CMT Rate. If the Base Rate is the CMT Rate
as specified on the face hereof, "CMT Rate" means with respect to any Interest
Determination Date, the rate displayed on the Designated CMT Telerate Page (as
defined below) under the caption "...Treasury Constant Maturities... Federal
Reserve Board Release H.15...Mondays Approximately 3:45 P.M. under the column
for the Designated CMT Maturity Index (as defined below) for (i) if the
Designated CMT Telerate Page is 7055, the rate on such Interest Determination
Date and (ii) if the Designated CMT Telerate Page is 7052, the week or the
month, as applicable, ended immediately preceding the week in which the related
Interest Determination Date occurs. If such rate is no longer displayed on the
relevant page, or if not displayed by 3:00 P.M., New York City time on the
related Calculation Date, then the CMT Rate for such Interest Determination
Date will be such Treasury Constant Maturity rate for the Designated CMT
Maturity Index as published in the relevant H.15(519). If such rate is no
longer published, or, if not published by 3:00 P.M., New York City time, on the
related Calculation Date, then the CMT Rate for such Interest Determination
Date, will be such Treasury Constant Maturity rate for the Designated CMT
Maturity Index (or other United States Treasury rate for the Designated CMT
Maturity Index) for the Interest Determination Date with respect to such
Interest Reset Date as may then be published by either the Board of governors
of the Federal Reserve System or the
<PAGE> 19
19
United States Department of the Treasury that the Calculation Agent determines
to be comparable to the rate formerly displayed on the Designated CMT Telerate
Page and published in the relevant H.15(519). If such information is not
provided by 3:00 P.M., New York City time, on the related Calculation Date,
then the CMT Rate for the Interest Determination Date will be calculated by the
Calculation Agent and will be a yield to maturity, based on the arithmetic mean
of the secondary market closing offer side prices as of approximately 3:30
P.M., New York City time on the Interest Determination Date reported, according
to their written records, by three leading primary United States government
securities dealers (each, a "Reference Dealer") in The City of New York (which
may include the Agents or their affiliates selected by the Calculation Agent
(from five such Reference Dealers selected by the Calculation Agent, after
consultation with the Company, and eliminating the highest quotation (or, in
the event of equality, one of the highest) and the lowest quotation (or, in the
event of equality, one of the lowest)), for the most recently issued direct
noncallable fixed rate obligations of the United States ("Treasury notes") with
an original maturity approximately the Designated CMT Maturity Index and
remaining term to maturity of not less than such Designated CMT Maturity Index
minus one year. If the Calculation Agent cannot obtain three such Treasury
notes quotation, the CMT Rate for such Interest Determination Date will be
calculated by the Calculation Agent and will be a yield to maturity based on
the arithmetic mean of the secondary market offer side prices as of
approximately 3:30 P.M., New York City time on the Interest Determination Date
of three Reference Dealers in The City of New York (from five such Reference
Dealers selected by the Calculation Agent and eliminating the highest quotation
(or, in the event of equality, one of the highest) and the lowest quotation
(or, in the event of equality, one of the lowest)), for Treasury notes with an
original maturity of the number of years that is the next highest to the
Designated CMT Maturity Index and a remaining term to maturity closest to the
Designated CMT Maturity Index and in an amount of at least $100,000,000. If
three
<PAGE> 20
20
or four (and not five) of such Reference dealers are quoting as described
above, then the CMT Rate will be based on the arithmetic mean of the offer
prices obtained and neither the highest nor the lowest of such quotes will be
eliminated; provided however, that if fewer than three Reference Dealers
selected by the Calculation Agent are quoting as described herein, the CMT Rate
for such Interest Reset Date will be the same as the CMT Rate for the
immediately preceding Interest Reset Period (or, if there was no such Interest
Reset Period, the rate of interest payable on this Note for which the CMT Rate
is being determined shall be the Initial Interest Rate). If two Treasury notes
with an original maturity as described in the third preceding sentence have
remaining terms to maturity equally close to the Designated CMT Maturity Index,
the quotes for the Treasury note with the shorter remaining term to maturity
will be used.
"Designated CMT Telerate Page" means the display on the Dow Jones
Telerate Service on the page designated in an applicable Pricing Supplement (or
any other page as may replace such page on that service for the purpose of
displaying Treasury Constant Maturities as reported in H.15(519)), for the
purpose of displaying Treasury Constant Maturities as reported in H.15(519).
If no such page is specified in the applicable Pricing Supplement, the
Designated CMT Telerate Page shall be 7052, for the most recent week.
"Designated CMT Maturity Index" shall be the original period to
maturity of the U.S. Treasury securities (either 1, 2, 3, 5, 7, 10, 20 or 30
years) specified in an applicable Pricing Supplement with respect to which the
CMT Rate will be calculated. If no such maturity is specified in the
applicable Pricing Supplement, the Designated CMT Maturity Index shall be 2
years.
Notwithstanding the foregoing, the interest rate hereon shall not be
greater than the Maximum Interest Rate, if any, or less than the Minimum
Interest Rate, if any, specified on the face hereof. The Calculation Agent
shall
<PAGE> 21
21
calculate the interest rate hereon in accordance with the foregoing on or
before each Calculation Date. The interest rate on this Note will in no event
be higher than the maximum rate permitted by New York law, as the same may be
modified by United States Federal law of general application.
At the request of the holder hereof, the Calculation Agent
will provide to the holder hereof the interest rate hereon then in effect and,
if determined, the interest rate that will become effective as of the next
Interest Reset Date.
Interest payments on this Note will include interest accrued
to but excluding the Interest Payment Dates or the Maturity Date (or any
earlier redemption or payment date), as the case may be. Accrued interest
hereon shall be an amount calculated by multiplying the face amount hereof by
an accrued interest factor. Such accrued interest factor shall be computed by
adding the interest factor calculated for each day in the period for which
interest is being paid. The interest factor for each such date shall be
computed by dividing the interest rate applicable to such day by 360 if the
Base Rate is CD Rate, Commercial Paper Rate, Federal Funds Rate, Prime Rate or
LIBOR, as specified on the face hereof, or by the actual number of days in the
year if the Base Rate is the Treasury Rate or the CMT Rate, as specified on the
face hereof. All percentages resulting from any calculation of the rate of
interest on this Note will be rounded, if necessary to the nearest one
hundred-thousandth of a percentage point (.0000001), with five one-millionths
of a percentage point rounded upward, and all dollar amounts used in or
resulting from such calculation on this Note will be rounded to the nearest
cent (with one-half cent rounded upward). The interest rate in effect on any
Interest Reset Date will be the applicable rate as reset on such date. The
interest rate applicable to any other day is the interest rate from the
immediately preceding Interest Reset Date (or, if none, the Initial Interest
Rate).
<PAGE> 22
22
This Note and all the obligations of the Issuer hereunder are
direct, unsecured obligations of the Issuer and rank without preference or
priority among themselves and pari passu with all other existing and future
unsecured and unsubordinated indebtedness of the Issuer, subject to certain
statutory exceptions in the event of liquidation upon insolvency.
This Note, and any Note or Notes issued upon transfer or
exchange hereof, is issuable only in fully registered form, without coupons,
and, if denominated in U.S. dollars, is issuable only in denominations of U.S.
$1,000 and any integral multiple of U.S. $1,000 in excess thereof. If this
Note is denominated in a Specified Currency other than U.S. dollars, then,
unless a higher minimum denomination is required by applicable law, it is
issuable only in denominations of the equivalent of U.S. $1,000 (rounded to an
integral multiple of 1,000 units of such Specified Currency), or any amount in
excess thereof which is an integral multiple of 1,000 units of such Specified
Currency, as determined by reference to the noon dollar buying rate in New York
City for cable transfers of such Specified Currency published by the Federal
Reserve Bank of New York (the "Market Exchange Rate") on the Business Day
immediately preceding the date of issuance; provided, however, in the case of
ECUs, the Market Exchange Rate shall be the rate of exchange determined by the
Commission of the European Communities (or any successor thereto) as published
in the Official Journal of the European Communities, or any successor
publication, on the Business Day immediately preceding the date of issuance.
The Trustee has been appointed registrar for the Notes, and
the Trustee will maintain at its corporate trust office in The City of New York
a register for the registration and transfer of Notes. This Note may be
transferred at the aforesaid office of the Trustee by surrendering this Note
for cancellation, accompanied by a written instrument of transfer in form
satisfactory to the Trustee and duly executed by the registered holder hereof
in
<PAGE> 23
23
person or by the holder's attorney duly authorized in writing, and thereupon
the Trustee shall issue in the name of the transferee or transferees, in
exchange herefor, a new Note or Notes having identical terms and provisions and
having a like aggregate principal amount in authorized denominations, subject
to the terms and conditions set forth herein; provided, however, that the
Trustee will not be required (i) to register the transfer of or exchange any
Note that has been called for redemption in whole or in part, except the
unredeemed portion of Notes being redeemed in part, (ii) to register the
transfer of or exchange any Note if the holder thereof has exercised his right,
if any, to require the Issuer to repurchase such Note in whole or in part,
except the portion of such Note not required to be repurchased, or (iii) to
register the transfer of or exchange Notes to the extent and during the period
so provided in the Indenture with respect to the redemption of Notes. Notes
are exchangeable at said office for other Notes of other authorized
denominations of equal aggregate principal amount having identical terms and
provisions. All such exchanges and transfers of Notes will be free of charge,
but the Issuer may require payment of a sum sufficient to cover any tax or
other governmental charge in connection therewith. All Notes surrendered for
exchange shall be accompanied by a written instrument of transfer in form
satisfactory to the Trustee and executed by the registered holder in person or
by the holder's attorney duly authorized in writing. The date of registration
of any Note delivered upon any exchange or transfer of Notes shall be such that
no gain or loss of interest results from such exchange or transfer.
In case any Note shall at any time become mutilated, defaced
or be destroyed, lost or stolen and such Note or evidence of the loss, theft or
destruction thereof (together with the indemnity hereinafter referred to and
such other documents or proof as may be required in the premises) shall be
delivered to the Trustee, a new Note of like tenor will be issued by the Issuer
in exchange for the Note so mutilated or defaced, or in lieu of the Note so
<PAGE> 24
24
destroyed or lost or stolen, but, in the case of any destroyed or lost or
stolen Note, only upon receipt of evidence satisfactory to the Trustee and the
Issuer that such Note was destroyed or lost or stolen and, if required, upon
receipt also of indemnity satisfactory to each of them. All expenses and
reasonable charges associated with procuring such indemnity and with the
preparation, authentication and delivery of a new Note shall be borne by the
owner of the Note mutilated, defaced, destroyed, lost or stolen.
The Indenture provides that, (a) if an Event of Default (as
defined in the Indenture) due to the default (i) in payment of principal or
premium, if any, on any series of debt securities or (ii) in the payment of any
installment of interest upon any series of debt securities continuing for a
period of 30 days, including the series of Medium-Term Notes of which this Note
forms a part, or due to the default in the performance or breach of any other
covenant or warranty of the Issuer applicable to the debt securities of such
series but not applicable to all outstanding debt securities issued under the
Indenture shall have occurred and be continuing for a period of 60 days, either
the Trustee or the holders of not less than 25% in aggregate principal amount
of the debt securities of such affected series may then declare the principal
of all debt securities of all such series and interest accrued thereon to be
due and payable immediately and (b) if an Event of Default due to a default in
the performance of any other of the covenants or agreements in the Indenture
applicable to the debt securities of such series, including this Note, shall
have occurred and be continuing for a period of 60 days after the date on which
written notice specifying such failure and requiring the Company to remedy the
same shall have been given, either the Trustee or the holders of not less than
25% in principal amount of the debt securities of such series may declare the
principal of all such debt securities and interest accrued thereon to be due
and payable immediately, but upon certain conditions such declarations may be
annulled and past defaults may be waived
<PAGE> 25
25
(except a continuing default in payment of principal (or premium, if any) or
interest on such debt securities) by the holders of a majority in principal
amount of the debt securities of all affected series then outstanding.
The Indenture permits the Issuer and the Trustee, with the
consent of the holders of not less than a majority in aggregate principal
amount of the debt securities of all series issued under the Indenture then
outstanding and affected by such supplemental indenture (voting as one class),
to execute supplemental indentures adding any provisions to or changing in any
manner or eliminating any of the provisions of the Indenture or modifying in
any manner the rights of the holders of each series so affected; provided that
no such supplemental indenture may, without the consent of the holder of each
outstanding debt security affected thereby, (i) reduce the percentage in
principal amount of Debt Securities of any series whose Holders must consent to
an amendment; (ii) reduce the rate of or extend the time for payment of
interest on any Debt Security or Coupon or reduce the amount of any payment to
be made with respect to any Coupon; (iii) reduce the principal of or extend the
Stated Maturity of any Debt Security; (iv) reduce the premium payable upon the
redemption of any Debt Security or change the time at which any Debt Security
may or shall be redeemed in accordance with Article III of the Indenture; (v)
make any Debt Security or Coupon payable in Currency other than that stated in
the Debt Security; (vi) make any change in Section 6.06 or Section 9.02 of the
Indenture; or (vii) limit the obligation of the Company to maintain a paying
agency outside the United States for payment on Bearer Securities as provided
in Section 4.02 of the Indenture.
Except as set forth below, if the principal of, premium, if
any, or interest on, this Note is payable in a Specified Currency other than
U.S. dollars and such Specified Currency is not available to the Issuer for
making payments hereon due to the imposition of exchange controls or other
circumstances beyond the control of the Issuer or
<PAGE> 26
26
is no longer used by the government of the country issuing such currency or for
the settlement of transactions by public institutions within the international
banking community, then the Issuer will be entitled to satisfy its obligations
to the holder of this Note by making such payments in U.S. dollars on the basis
of the Market Exchange Rate on the date of such payment or, if the Market
Exchange Rate is not available on such date, as of the most recent practicable
date. Any payment made under such circumstances in U.S. dollars where the
required payment is in a Specified Currency other than U.S. dollars will not
constitute an Event of Default.
If payment in respect of this Note is required to be made in
ECUs and ECUs are unavailable due to the imposition of exchange controls or
other circumstances beyond the Issuer's control or are no longer used as either
the unit of account of the European Community or as the currency of the
European Union, then all payments in respect of this Note shall be made in U.S.
dollars until ECUs are again available or so used. The amount of each payment
in U.S. dollars shall be computed on the basis of the equivalent of the ECU in
U.S. dollars, determined as described below, as of the second Business Day
prior to the date on which such payment is due.
The equivalent of the ECU in U.S. dollars as of any date shall
be determined by the Issuer or its agent on the following basis. The component
currencies of the ECU for this purpose (the "Components") shall be the currency
amounts that were components of the ECU as of the last date on which the ECU
was used as the unit of account of the European Community. The equivalent of
the ECU in U.S. dollars shall be calculated by aggregating the U.S. dollar
equivalents of the Components. The U.S. dollar equivalent of each of the
Components shall be determined by the Issuer or such agent on the basis of the
most recently available Market Exchange Rates for such Components.
<PAGE> 27
27
All determinations referred to above made by the Issuer or its
agent shall be at its sole discretion and shall, in the absence of manifest
error, be conclusive to the extent permitted by law for all purposes and
binding on the holder of this Note.
So long as this Note shall be outstanding, the Issuer will
cause to be maintained an office or agency for the payment of the principal of
and premium, if any, and interest on this Note as herein provided in the
Borough of Manhattan, The City of New York, and an office or agency in said
Borough of Manhattan for the registration, transfer and exchange as aforesaid
of the Notes. The Issuer may designate other agencies for the payment of said
principal, premium and interest at such place or places (subject to applicable
laws and regulations) as the Issuer may decide. So long as there shall be such
an agency, the Issuer shall keep the Trustee advised of the names and locations
of such agencies, if any are so designated.
With respect to moneys paid by the Issuer and held by the
Trustee or any Paying Agent for payment of the principal of or interest or
premium, if any, on any Notes that remain unclaimed at the end of two years
after such principal, interest or premium shall have become due and payable
(whether at maturity or upon call for redemption or otherwise), (i) the Trustee
or such Paying Agent shall notify the holders of such Notes that such moneys
shall be repaid to the Issuer, upon the written request of the Issuer and any
person claiming such moneys shall thereafter look only to the Issuer for
payment thereof and (ii) such moneys shall be so repaid, upon the written
request of the Issuer to the Issuer. Upon such repayment all liability of the
Trustee or such Paying Agent with respect to such moneys shall thereupon cease,
without, however, limiting in any way any obligation that the Issuer may have
to pay the principal of or interest or premium, if any, on this Note as the
same shall become due.
<PAGE> 28
28
No provision of this Note or of the Indenture shall alter or
impair the obligation of the Issuer, which is absolute and unconditional, to
pay the principal of, premium, if any, and interest on this Note at the time,
place, and rate, and in the coin or currency, herein prescribed unless
otherwise agreed between the Issuer and the registered holder of this Note.
Prior to due presentment of this Note for registration of
transfer, the Issuer, the Trustee and any agent of the Issuer or the Trustee
may treat the holder in whose name this Note is registered as the owner hereof
for all purposes, whether or not this Note be overdue, and none of the Issuer,
the Trustee or any such agent shall be affected by notice to the contrary.
No recourse shall be had for the payment of the principal of,
premium, if any, or the interest on this Note, for any claim based hereon, or
otherwise in respect hereof, or based on or in respect of the Indenture or any
indenture supplemental thereto, against any incorporator, shareholder, officer
or director, as such, past, present or future, of the Issuer or of any
successor corporation, either directly or through the Issuer or any successor
corporation, whether by virtue of any constitution, statute or rule of law or
by the enforcement of any assessment or penalty or otherwise, all such
liability being, by the acceptance hereof and as part of the consideration for
the issue hereof, expressly waived and released.
This Note shall for all purposes be governed by, and construed
in accordance with, the laws of the State of New York, without regard to
conflicts of laws principles thereof.
All terms used in this Note which are defined in the Indenture
and not otherwise defined herein shall have the meanings assigned to them in
the Indenture.
<PAGE> 29
29
ABBREVIATIONS
The following abbreviations, when used in the inscription on
the face of this instrument, shall be construed as though they were written out
in full according to applicable laws or regulations:
TEN COM-as tenants in common
TEN ENT-as tenants by the entireties
JT TEN-as joint tenants with right of survivorship
and not as tenants in common
UNIF GIFT MIN
ACT-................Custodian......................
(Cust) (Minor)
Under Uniform Gifts to Minors
Act................................................
(State)
Additional abbreviations may also be used though not in the
above list.
_________________________
<PAGE> 30
30
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
[PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE]
________________________________________
|
|
________________________________________________________________________________
________________________________________________________________________________
[PLEASE PRINT OR TYPE NAME AND ADDRESS INCLUDING ZIP CODE, OF ASSIGNEE]
________________________________________________________________________________
the within Note and all rights thereunder, hereby irrevocably
________________________________________________________________________________
constituting and appointing such person attorney to transfer
________________________________________________________________________________
such note on the books of the Issuer, with full power of
________________________________________________________________________________
substitution in the premises.
Dated:_____________________
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within Note in every particular without
alteration or enlargement or any change whatsoever.
Signature guarantee: _______________________________________
<PAGE> 31
31
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the
Issuer to repay the within Note (or portion thereof specified below) pursuant
to its terms at a price equal to the principal amount thereof, together with
interest to the Optional Repayment Date, to the undersigned at
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite
name and address of the undersigned)
If less than the entire principal amount of the within Note is
to be repaid, specify the portion thereof which the holder elects to have
repaid: __________________; and specify the denomination or denominations
(which shall not be less than the minimum authorized denomination) of the Notes
to be issued to the holder for the portion of the within Note not being repaid
(in the absence of any such specification, one such Note will be issued for the
portion not being repaid): ________________________.
Dated:______________ __________________________________________________
NOTICE: The signature on this Option to Elect
Repayment must correspond with the name as written
upon the face of the within instrument in every
particular without alteration or enlargement.
Signature guarantee: ________________________________________________
