SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
Current Report
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ITEM 1.01. ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT.
As previously reported, on August 19, 2026, Charter Communications, Inc. (“Charter”) and its subsidiaries completed the transactions (the “Transaction”) contemplated by the Transaction Agreement, dated as of May 16, 2025, by and among Charter, Charter Communications Holdings, LLC and Cox Enterprises, Inc. (“Cox Enterprises”), pursuant to which Charter acquired the commercial fiber and managed IT and cloud services businesses of Cox Communications, LLC (formerly known as Cox Communications, Inc., “Cox Communications”) and Cox Enterprises contributed the residential cable business of Cox Communications to Charter Communications Operating, LLC (“CCO”). In connection with the closing of the Transaction, Charter and its subsidiaries entered into the following supplemental indentures to add certain subsidiaries of Cox Enterprises and Charter as additional guarantors and grant security interests in collateral.
Pursuant to the requirements of the Amended and Restated Credit Agreement, dated as of March 18, 1999, as amended and restated as of April 26, 2019 (as amended by Amendment No. 1, dated as of October 24, 2019, as further amended by Amendment No. 2, dated as of May 26, 2022, as further amended by Amendment No. 3, dated as of February 10, 2023, as further amended by Amendment No. 4, dated as of March 23, 2023, as further amended by Amendment No. 5, dated as of December 7, 2023, as further amended by Amendment No. 6, dated as of December 3, 2024, as further amended by Amendment No. 7, dated as of May 6, 2026 and as may be further amended, amended and restated, supplemented, restated or otherwise modified from time to time, the “Charter Credit Agreement”), by and among CCO Holdings, LLC, as holdings, CCO, as borrower, the lenders party thereto and Bank of America, N.A. (“BofA”), as administrative agent, on August 24, 2026, certain Cox entities became guarantors of and granted liens on substantially all of the assets and pledges of equity interest directly owned by them as collateral to secure the obligations under the Charter Credit Agreement by executing, among other things, an assumption agreement with BofA. Such Cox entities have also become guarantors under each of the indentures described below and have granted liens on such assets as collateral to secure the obligations under such indentures. With respect to the Cox Indenture (as defined below), the current guarantors of Charter’s secured debt, including the Charter Credit Agreement, the CCO Indenture (as defined below), the TWC Indenture (as defined below) and the TWCE Indenture (as defined below), have become guarantors of the Cox Indenture and have granted liens on such assets that constitute collateral under Charter’s secured debt to secure the obligations under the Cox Indenture.
As a result, each series of secured notes across the combined Charter and Cox capital structure benefits from the same collateral and obligors, such that the obligations under the notes issued under the CCO Indenture, the TWC Indenture, the TWCE Indenture and the Cox Indenture and the obligations under the Charter Credit Agreement are guaranteed and secured on a pari passu basis.
CCO Thirtieth Supplemental Indenture.
CCO, Charter Communications Operating Capital Corp. (together with CCO, the “Issuers”), the new guarantors party thereto and The Bank of New York Mellon Trust Company, N.A., as trustee and collateral agent, entered into a Thirtieth Supplemental Indenture, entered into and dated as of August 24, 2026, to the Indenture, dated as of July 23, 2015, as previously supplemented (the “CCO Indenture”), to, among other things, add certain Cox entities as note guarantors. The foregoing description does not purport to be complete and is qualified in its entirety by reference to Exhibit 4.1 hereto.
Cox Twenty-Third Supplemental Indenture.
Cox Communications, the new guarantors party thereto and The Bank of New York Mellon Trust Company, N.A., as trustee and collateral agent, entered into a Twenty-Third Supplemental Indenture, entered into and dated as of August 24, 2026, to the Indenture, entered into and dated as of June 27, 1995, as previously supplemented (the “Cox Indenture”), to add certain Charter subsidiaries and Cox entities as note guarantors. The foregoing description does not purport to be complete and is qualified in its entirety by reference to Exhibit 4.2 hereto. The Cox Indenture, including supplements thereto, is filed as Exhibits 4.7 through 4.19.
TWC Eleventh Supplemental Indenture.
Time Warner Cable, LLC (“TWC”), the new guarantors party thereto and The Bank of New York Mellon, as trustee, entered into an Eleventh Supplemental Indenture, dated as of August 24, 2026, to the Indenture, entered into and dated as of April 9, 2007, as previously supplemented (the “TWC Indenture”), to, among other things, add certain Cox entities as note guarantors. The foregoing description does not purport to be complete and is qualified in its entirety by reference to Exhibit 4.3 hereto.
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TWCE Twentieth Supplemental Indenture.
Time Warner Cable Enterprises LLC (“TWCE”), the new guarantors party thereto and The Bank of New York Mellon, as trustee, entered into a Twentieth Supplemental Indenture, entered into and dated as of August 24, 2026, to the Indenture, dated as of April 30, 1992, as previously supplemented (the “TWCE Indenture”), to, among other things, add certain Cox entities as additional guarantors. The foregoing description does not purport to be complete and is qualified in its entirety by reference to Exhibit 4.4 hereto.
ITEM 2.03. CREATION OF A DIRECT FINANCIAL OBLIGATION OR AN OBLIGATION UNDER AN OFF-BALANCE SHEET ARRANGEMENT OF A REGISTRANT.
The information set forth under Item 1.01 of this Current Report on Form 8-K is incorporated into this Item 2.03 by reference. In connection with the Transaction, certain Cox entities have guaranteed the outstanding notes issued under the CCO Indenture, the TWC Indenture and the TWCE Indenture, and certain Charter subsidiaries and Cox entities have guaranteed the obligations of Cox Communications under the Cox Indenture and granted security interests in collateral for the benefit of holders, in each case as described in Item 1.01 above.
ITEM 9.01. FINANCIAL STATEMENTS AND EXHIBITS.
(d) Exhibits.
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4
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, each of Charter Communications, Inc., CCO Holdings, LLC and CCO Holdings Capital Corp. has duly caused this Current Report to be signed on its behalf by the undersigned hereunto duly authorized.
| CHARTER COMMUNICATIONS, INC., | ||
| Registrant | ||
| By: | /s/ Kevin D. Howard | |
| Name: | Kevin D. Howard | |
| Title: | Executive Vice President, Chief Accounting Officer and Controller | |
| Date: August 24, 2026 | ||
| CCO HOLDINGS, LLC, | ||
| Registrant | ||
| By: | /s/ Kevin D. Howard | |
| Name: | Kevin D. Howard | |
| Title: | Executive Vice President, Chief Accounting Officer and Controller | |
| Date: August 24, 2026 | ||
| CCO HOLDINGS CAPITAL CORP., | ||
| Registrant | ||
| By: | /s/ Kevin D. Howard | |
| Name: | Kevin D. Howard | |
| Title: | Executive Vice President, Chief Accounting Officer and Controller | |
| Date: August 24, 2026 | ||
Exhibit 4.1
THIRTIETH SUPPLEMENTAL INDENTURE
THIRTIETH SUPPLEMENTAL INDENTURE, dated as of August 24, 2026 (this “Supplemental Indenture”), among each of the parties named on Schedule I hereto (collectively, the “New Guarantors”), Charter Communications Operating, LLC, a Delaware limited liability company (“CCO”), Charter Communications Operating Capital Corp., a Delaware corporation (together with CCO, the “Issuers”) and The Bank of New York Mellon Trust Company, N.A., a national banking association, as trustee (the “Trustee”) and collateral agent (the “Collateral Agent”) under the Indenture referred to below.
W I T N E S S E T H:
WHEREAS, the Issuers and CCO Safari II, LLC, a Delaware limited liability company, have heretofore executed and delivered to the Trustee an Indenture, dated as of July 23, 2015, as amended by the First Supplemental Indenture, dated as of July 23, 2015, the Second Supplemental Indenture, dated as of May 18, 2016, the Third Supplemental Indenture, dated as of May 18, 2016, the Fourth Supplemental Indenture, dated as of November 1, 2016, the Fifth Supplemental Indenture, dated as of April 20, 2017, the Sixth Supplemental Indenture, dated as of July 6, 2017, the Seventh Supplemental Indenture, dated as of September 18, 2017, the Eighth Supplemental Indenture, dated as of December 21, 2017, the Ninth Supplemental Indenture, dated as of April 17, 2018, the Tenth Supplemental Indenture, dated as of July 3, 2018, the Eleventh Supplemental Indenture, dated as of July 27, 2018, the Twelfth Supplemental Indenture, dated as of January 17, 2019, Thirteenth Supplemental Indenture, dated as of June 21, 2019, Fourteenth Supplemental Indenture, dated as of July 10, 2019, Fifteenth Supplemental Indenture, dated as of October 24, 2019, Sixteenth Supplemental Indenture, dated as of April 17, 2020, Seventeenth Supplemental Indenture, dated as of November 19, 2020, Eighteenth Supplemental Indenture, dated as of December 4, 2020, Nineteenth Supplemental Indenture, dated as of March 4, 2021, Twentieth Supplemental Indenture, dated as of June 2, 2021, Twenty-First Supplemental Indenture, dated as of October 12, 2021, Twenty-Second Supplemental Indenture, dated as of March 15, 2022, Twenty-Third Supplemental Indenture, dated as of November 7, 2023, Twenty-Fourth Supplemental Indenture, dated as of November 10, 2023, Twenty-Fifth Supplemental Indenture, dated as of May 14, 2024, Twenty-Sixth Supplemental Indenture, dated as of September 2, 2025, Twenty-Seventh Supplemental Indenture, dated as of August 12, 2026, Twenty-Eighth Supplemental Indenture, dated as of August 18, 2026 and Twenty-Ninth Supplemental Indenture, dated as of August 24, 2026 (as amended, supplemented or otherwise modified, the “Indenture”), providing for the issuance of the Issuers’ Notes;
WHEREAS, the Issuers desire to add the New Guarantors as Note Guarantors under the Indenture; and
WHEREAS, pursuant to Section 9.01(4) of the Indenture, the Trustee, the Collateral Agent, the Issuers and other Note Guarantors, if any, are authorized to execute and deliver this Supplemental Indenture to add the Note Guarantees by the New Guarantors.
NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the New Guarantors, the Issuers and the Trustee mutually covenant and agree for the equal and ratable benefit of Holders as follows:
1. Defined Terms. As used in this Supplemental Indenture, terms defined in the Indenture or in the preamble or recital hereto are used herein as therein defined. The words “herein,” “hereof” and “hereby” and other words of similar import used in this Supplemental Indenture refer to this Supplemental Indenture as a whole and not to any particular section hereof.
2. Agreement to Guarantee. Each of the New Guarantors hereby agrees, jointly and severally with each other and all existing guarantors (if any), to unconditionally guarantee the Issuers’ Obligations under the Notes and the Indenture on the terms and subject to the conditions set forth in Article 10 of the Indenture and to be bound by all other applicable provisions of the Indenture and the Notes and to perform all of the obligations and agreements of a Note Guarantor under the Indenture until released pursuant to the terms of the Indenture. Each of the New Guarantors will be entitled to the benefits set forth in Article 10 of the Indenture, including the release provisions set forth in Section 10.02(b) of the Indenture.
3. Notices. All notices or other communications to the New Guarantors shall be given as provided in Section 12.02 of the Indenture.
4. Ratification of Indenture; Supplemental Indentures Part of Indenture. Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder heretofore or hereafter authenticated and delivered shall be bound hereby.
5. Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
6. Trustee Makes No Representation. The recitals contained herein shall be taken as the statements of the Issuers, and the Trustee assumes no responsibility for their correctness. The Trustee makes no representation as to the validity or sufficiency of this Supplemental Indenture.
7. Counterparts. The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement.
8. Effect of Headings. The section headings herein are for convenience only and shall not affect the construction hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Thirtieth Supplemental Indenture to be duly executed as of the date first above written.
| CHARTER COMMUNICATIONS OPERATING, LLC | ||
| By: | /s/ Jeffrey B. Murphy | |
| Name: Jeffrey B. Murphy | ||
| Title: Senior Vice President, Corporate Finance and Development | ||
| CHARTER COMMUNICATIONS OPERATING CAPITAL CORP. | ||
| By: | /s/ Jeffrey B. Murphy | |
| Name: Jeffrey B. Murphy | ||
| Title: Senior Vice President, Corporate Finance and Development | ||
| THE NEW GUARANTORS NAMED ON SCHEDULE I HERETO | ||
| By: | /s/ Jeffrey B. Murphy | |
| Name: Jeffrey B. Murphy | ||
| Title: Authorized Signatory | ||
[Signature Page to Thirtieth Supplemental Indenture]
IN WITNESS WHEREOF, the parties hereto have caused this Thirtieth Supplemental Indenture to be duly executed as of the date first above written.
| THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee | ||
| By: | /s/ Terence Rawlins | |
| Name: Terence Rawlins | ||
| Title: Vice President | ||
| THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Collateral Agent | ||
| By: | /s/ Terence Rawlins | |
| Name: Terence Rawlins | ||
| Title: Vice President | ||
[Signature Page to Thirtieth Supplemental Indenture]
Schedule I
New Guarantors
| 1. | CCO Holdings, LLC |
| 2. | BPRF Holdings, LLC, a Delaware limited liability company |
| 3. | CB Commercial Devices, LLC, a Delaware limited liability company |
| 4. | CCI Corporate Services, LLC, a Delaware limited liability company |
| 5. | CCI Devices, LLC, a Delaware limited liability company |
| 6. | Cox Advanced Services Arizona, LLC, a Delaware limited liability company |
| 7. | Cox Advanced Services Arkansas, LLC, a Delaware limited liability company |
| 8. | Cox Advanced Services California, LLC, a Delaware limited liability company |
| 9. | Cox Advanced Services Connecticut, LLC, a Delaware limited liability company |
| 10. | Cox Advanced Services Florida, LLC, a Delaware limited liability company |
| 11. | Cox Advanced Services Georgia, LLC, a Delaware limited liability company |
| 12. | Cox Advanced Services Idaho, LLC, a Delaware limited liability company |
| 13. | Cox Advanced Services Iowa, LLC, a Delaware limited liability company |
| 14. | Cox Advanced Services Kansas, LLC, a Delaware limited liability company |
| 15. | Cox Advanced Services Louisiana, LLC, a Delaware limited liability company |
| 16. | Cox Advanced Services Nebraska, LLC, a Delaware limited liability company |
| 17. | Cox Advanced Services Nevada, LLC, a Delaware limited liability company |
| 18. | Cox Advanced Services North Carolina, LLC, a Delaware limited liability company |
| 19. | Cox Advanced Services Ohio, LLC, a Delaware limited liability company |
| 20. | Cox Advanced Services Oklahoma, LLC, a Delaware limited liability company |
| 21. | Cox Advanced Services Rhode Island, LLC, a Delaware limited liability company |
| 22. | Cox Advanced Services Virginia, LLC, a Delaware limited liability company |
| 23. | Cox Arizona Telcom, L.L.C., a Delaware limited liability company |
| 24. | Cox Arkansas Telcom, L.L.C., a Delaware limited liability company |
| 25. | Cox California Telcom, L.L.C., a Delaware limited liability company |
| 26. | Cox Colorado Telcom, L.L.C., a Delaware limited liability company |
| 27. | Cox Communications Arizona, LLC, a Delaware limited liability company |
| 28. | Cox Communications California, LLC, a Delaware limited liability company |
| 29. | Cox Communications EBD Holdings, LLC, a Delaware limited liability company |
| 30. | Cox Communications Georgia, LLC, a Delaware limited liability company |
| 31. | Cox Communications Gulf Coast, LLC, a Delaware limited liability company |
| 32. | Cox Communications Hampton Roads, L.L.C., a Delaware limited liability company |
| 33. | Cox Communications Kansas, L.L.C., a Delaware limited liability company |
| 34. | Cox Communications Las Vegas, LLC, a Delaware limited liability company |
| 35. | Cox Communications Louisiana, L.L.C., a Delaware limited liability company |
| 36. | Cox Communications Missouri, LLC, a Delaware limited liability company |
| 37. | Cox Communications NCC, LLC, a Delaware limited liability company |
| 38. | Cox Communications Omaha, L.L.C., a Delaware limited liability company |
| 39. | Cox Communications Tower, LLC, a Delaware limited liability company |
| 40. | Cox Communications, LLC, a Delaware limited liability company |
| 41. | Cox Connecticut Telcom, L.L.C., a Delaware limited liability company |
| 42. | Cox Florida Telcom, L.P., a Delaware limited partnership |
| 43. | Cox HMS, LLC, a Delaware limited liability company |
| 44. | Cox Horizon Growth, LLC, a Delaware limited liability company |
| 45. | Cox Idaho Telcom, L.L.C., a Delaware limited liability company |
| 46. | Cox Iowa Telcom, L.L.C., a Delaware limited liability company |
| 47. | Cox Kansas Telcom, L.L.C., a Delaware limited liability company |
| 48. | Cox LAHC, LLC, a Delaware limited liability company |
| 49. | Cox Media, L.L.C., a Delaware limited liability company |
| 50. | Cox Missouri Telcom, LLC, a Delaware limited liability company |
| 51. | Cox Nebraska Telcom, L.L.C., a Delaware limited liability company |
| 52. | Cox Nevada Telcom, L.L.C., a Delaware limited liability company |
| 53. | Cox North Carolina Telcom, L.L.C., a Delaware limited liability company |
| 54. | Cox Ohio Telcom, L.L.C., a Delaware limited liability company |
| 55. | Cox Oklahoma Telcom, L.L.C., a Delaware limited liability company |
| 56. | Cox Rhode Island Telcom, L.L.C., a Delaware limited liability company |
| 57. | Cox TMI, LLC, a Delaware limited liability company |
| 58. | Cox Virginia Telcom, L.L.C., a Virginia limited liability company |
| 59. | Cox Wireless Access, LLC, a Delaware limited liability company |
| 60. | Cox/Charter Master Cable Advertising, LLC, a Delaware limited liability company |
| 61. | CoxCom, LLC, a Delaware limited liability company |
| 62. | Fiber Platform Blocker, LLC, a Delaware limited liability company |
| 63. | FIBER PLATFORM HOLDINGS, LLC, a Delaware limited liability company |
| 64. | FIBER PLATFORM, LLC, a Delaware limited liability company |
| 65. | Hospitality Network Louisiana, L.L.C., a Delaware limited liability company |
| 66. | Hospitality Network Pennsylvania, LLC, a Delaware limited liability company |
| 67. | Hospitality Network, L.L.C., a Delaware limited liability company |
| 68. | Logicworks Systems, LLC, a Delaware limited liability company |
| 69. | RapidScale, LLC, a California limited liability company |
| 70. | TMI Partner Holdings, LLC, a Delaware limited liability company |
| 71. | Unite Private Networks-Illinois, L.L.C., a Delaware limited liability company |
| 72. | UPN Intermediate Holdings LLC, a Delaware limited liability company |
Exhibit 4.2
COX COMMUNICATIONS, INC.,
as Issuer
THE GUARANTORS PARTY NAMED ON SCHEDULE I HERETO,
as guarantors
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
as Trustee and Collateral Agent
TWENTY-THIRD SUPPLEMENTAL INDENTURE
Dated as of August 24, 2026
Supplement to Indenture
Dated as of June 27, 1995
TWENTY-THIRD SUPPLEMENTAL INDENTURE, dated as of the 24th day of August, 2026, between COX COMMUNICATIONS, INC., a corporation existing under the laws of the State of Delaware, having its principal executive office located at 6205-B Peachtree Dunwoody Road, NE, Atlanta, Georgia 30328 (the “Company”), and each of the entities listed on Schedule I hereto (collectively, the “Guarantors”) and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., a national banking association, having a designated corporate trust office located at 500 Ross Street, 12th Floor, Pittsburgh, PA 15262, as trustee (the “Trustee”) and as collateral agent (the “Collateral Agent”);
WHEREAS, the Company has heretofore executed and delivered to the Trustee an Indenture, dated as of June 27, 1995 (as amended or supplemented prior to the date hereof, the “Original Indenture” and, as amended by this Supplemental Indenture and as it may be amended or supplemented subsequent to the date hereof, the “Indenture”), providing for the issuance by the Company from time to time of its debentures, notes, bonds or other evidences of indebtedness (in the Original Indenture and herein called the “Debt Securities”), unlimited as to principal amount, to be issued in one or more series;
WHEREAS, the Company, in the exercise of the power and authority conferred upon and reserved to it under the provisions of the Original Indenture and pursuant to appropriate resolutions of the Company’s Board of Directors, pursuant to appropriate resolutions of Board of Directors or other applicable governing bodies of the New Guarantors, has duly determined to make, execute and deliver to the Trustee, this Supplemental Indenture to the Original Indenture in order to establish the terms of, and to provide for the grant of, full and unconditional guarantees (the “Guarantees”) by the Guarantors of the Company’s obligations with respect to its 3.500% Notes due 2027, 6.800% Debentures due 2028, 6.950% Medium Term Notes due 2028, 5.450% Notes due 2028, 1.800% Notes due 2030, 2.600% Notes due 2031, 5.700% Notes due 2033, 5.45% Notes due 2034, 4.800% Notes due 2035, 6.450% Notes due 2036, 6.950% Notes due 2038, 8.375% Notes due 2039, 4.700% Notes due 2042, 4.500% Notes due 2043, 4.600% Notes due 2047, 2.950% Notes due 2050, 3.600% Notes due 2051, 5.800% Notes due 2053 and 5.95% Notes due 2054 each issued pursuant to the Original Indenture (collectively, the “Notes”) and the Company’s obligations under the Indenture;
WHEREAS, on May 16, 2025, Charter Communications, Inc., a Delaware corporation (“Charter”), Charter Communications Holdings, LLC, and Cox Enterprises, Inc. (“Cox Enterprise”) entered into a Transaction Agreement pursuant to which Charter acquired the commercial fiber and managed IT and cloud services businesses of the Company and Cox Enterprise contributed the residential cable business of Cox Communications to Charter Communications Operating, LLC, a Delaware limited liability company and wholly-owned subsidiary of Charter (“CCO”) (the “Transaction”);
WHEREAS, in connection with the Transaction, CCO and the Company desire to amend and supplement the Original Indenture to (i) add certain subsidies of Charter and certain subsidiaries of the Company as additional guarantors for the Debt Securities and (ii) provide for the grant of security interests in the Collateral for the benefit of the Holders to secure the obligations of the Company and the Guarantors under the Indenture;
WHEREAS, Section 9.01(i) of the Original Indenture provides, among other things, that the Company and the Trustee, at any time and from time to time, without the consent of any Holders, may enter into an indenture supplemental to the Original Indenture to add guarantees with respect to the Debt Securities of any series or to secure the Debt Securities;
WHEREAS, all things necessary to make this Supplemental Indenture a valid, binding and legal agreement of the Company and the New Guarantors, have been done;
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH that, in order to provide for the Guarantees and the grant of security interests in the Collateral, and for and in consideration of the premises and of the covenants contained in the Original Indenture and in this Supplemental Indenture and for other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of the Notes of an applicable series, as follows:
Article 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101 Definitions. For all purposes of the Original Indenture and this Supplemental Indenture relating to the Notes and the Guarantees, except as otherwise expressly provided or unless the context otherwise requires, the terms defined in this Article have the meanings assigned to them in this Article. Each capitalized term that is used in the Original Indenture and this Supplemental Indenture but not defined herein shall have the meaning specified in the Original Indenture.
“Administrative Agent” means the administrative agent under the Charter Credit Agreement.
“Charter Credit Agreement” means the Amended and Restated Credit Agreement, dated as of March 18, 1999, as amended and restated as of April 26, 2019, as amended by Amendment No. 1 on October 24, 2019, as amended by Amendment No. 2 on May 26, 2022, as amended by Amendment No. 3 on February 10, 2023, as amended by Amendment No. 4 on March 23, 2023, as amended by Amendment No. 5 on December 7, 2023, as amended by Amendment No. 6 on December 3, 2024 and as amended by Amendment No. 7 on May 6, 2026, by and among CCO Holdings, LLC, a Delaware limited liability company, as holdings, CCO, as the borrower, the lenders party thereto, Bank of America, N.A., as administrative agent, and the other parties thereto together with the related documents thereto (including any term loans and revolving loans thereunder, any guarantees and security documents), as further amended, extended, renewed, restated, supplemented or otherwise modified (in whole or in part, and without limitation as to amount, terms, conditions, covenants and other provisions) from time to time, and any agreement (and related document) governing indebtedness incurred to refinance, in whole or in part, the borrowings and commitments then outstanding or permitted to be outstanding under such credit agreement or a successor credit agreement, whether by the same or any other lender or group of lenders; provided that this Supplemental Indenture shall not constitute the Charter Credit Agreement.
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“Collateral” means all property and assets, whether now owned or hereafter acquired, in which Liens are, from time to time, purported to be granted to secure the Note Obligations pursuant to the Security Documents.
“Collateral Agent” means The Bank of New York Mellon Trust Company, N.A. until a successor replaces it and, thereafter, means such successor.
“Collateral Agreement” means the Collateral Agreement, dated as of the date hereof by and among the Company, the Collateral Agent and the other grantors party thereto from time to time, as the same may be amended, restated, supplemented, replaced or otherwise modified from time to time.
“Collateral Release Event” shall occur on the first date when (A) there is no Equally and Ratably Secured Indebtedness outstanding (or, all Equally and Ratably Secured Indebtedness outstanding on such date shall cease to constitute Equally and Ratably Secured Indebtedness substantially concurrently with the release of the Liens on the Collateral securing the Notes and the Note Guarantees) and (B) the Company has delivered an Officers’ Certificate to the Trustee and the Collateral Agent certifying that the condition set forth in clause (A) above is satisfied.
“Debt Securities” has the meaning specified in the first recital hereof.
“Equally and Ratably Secured Indebtedness” means all Indebtedness For Borrowed Money of CCO or a Material Subsidiary of CCO that is secured by any Lien on any assets of CCO or any of its Material Subsidiaries that is not a Permitted Lien.
“Guarantee” or “Guarantees” has the meaning specified in the recitals hereof.
“Guarantor” has the meaning specified in the first paragraph hereof.
“Guaranty Agreement” means a supplemental indenture to the Indenture, in a form reasonably satisfactory to the Trustee, pursuant to which a Guarantor guarantees the Company’s obligations with respect to the Notes on the terms provided for in Article 2.
“Holder,” in the case of any Note of a particular series, means the Person in whose name such Note is registered in the Debt Security Register.
“Indebtedness For Borrowed Money” of any Person means, without duplication, (a) all indebtedness of such Person for borrowed money, (b) all indebtedness of such Person evidenced by bonds, debentures, notes or similar instruments and (c) all Guarantee obligations of such Person with respect to indebtedness of the type described in clauses (a) and (b) above of others. The Indebtedness For Borrowed Money of any Person shall include the Indebtedness For Borrowed Money of any other entity (including any partnership in which such Person is a general partner) to the extent such Person is liable therefor as a result of such Person’s ownership interest in or other contractual relationship with such entity, except to the extent the terms of such Indebtedness For Borrowed Money provide that such Person is not liable therefor.
“Note Obligations” means the Obligations as defined in the Collateral Agreement.
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“Notes” has the meaning specified in the recitals hereof.
“Secured Parties” means, collectively, the Collateral Agent, the Holders and the Trustee.
“Security Documents” means the Collateral Agreement, and any other mortgages, deeds of trust, deeds to secure debt, security agreements, pledge agreements, agency agreements and other instruments and documents executed and delivered pursuant to the Indenture or any of the foregoing, as the same may be amended, supplemented or otherwise modified from time to time and pursuant to which Collateral is pledged, assigned or granted to or on behalf of the Collateral Agent for the ratable benefit of the Trustee and the Holders.
“Supplemental Indenture” means this Twenty-Third Supplemental Indenture.
“Termination Date” shall have the meaning set forth in Section 201(f).
“Trustee” has the meaning specified in the first paragraph hereof.
Section 102 Section References. Each reference to a particular section set forth in this Supplemental Indenture shall, unless the context otherwise requires, refer to this Supplemental Indenture.
Section 103 Effect of Supplemental Indenture. Except as set forth below and except as expressly amended hereby, the Original Indenture shall continue in full force and effect in accordance with the provisions thereof, and the Original Indenture is in all respects hereby ratified and confirmed. This Supplemental Indenture and all its provisions shall be deemed a part of the Original Indenture in the manner and to the extent herein and therein provided. The Original Indenture and this Supplemental Indenture shall be read, taken and construed as one and the same instrument.
This Supplemental Indenture amends and supplements and, to the extent inconsistent therewith, replaces the provisions of the Original Indenture, to which provisions, if any, reference is made herein.
The amendments and supplements to, and replacements of the provisions of, the Original Indenture effected by this Supplemental Indenture shall be applicable only with respect to, and govern the terms of, the Notes of the applicable series, and shall not apply to any other Debt Securities that have been or may be issued under the Original Indenture unless a supplemental indenture with respect to such other Debt Securities specifically incorporates such amendments, supplements and replacements.
Article 2
GUARANTEE
Section 201 Guarantee.
(a) The New Guarantors hereby fully and unconditionally guarantee the Notes of each series and the obligations of the Company thereunder and under the Indenture, and guarantee to each Holder of a Note of such series authenticated and delivered by the Trustee, and to the Trustee on behalf of such Holder, that (i) the principal of (and premium, if any) and interest on the Notes of such series will be paid in full when due, whether at Stated Maturity, by acceleration or otherwise (including, without limitation, the amount that would become due but for the operation of any automatic stay provision of any federal bankruptcy law), together with interest on the overdue principal, if any, and interest on any overdue interest, to the extent lawful, and all other obligations of the Company to the Holders or the Trustee under the Indenture or the Notes of such series will be paid in full or performed, all in accordance with the terms of the Indenture and the Notes of such series; and (ii) in case of any extension of time of payment or renewal of any Notes of such series or of any such other obligations, the same will be paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise.
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(b) The New Guarantors hereby agree that, in the event of a default in payment of principal (or premium, if any) or interest on an applicable series of Notes, whether at Stated Maturity, by acceleration, purchase or otherwise, legal proceedings may be instituted by the Trustee on behalf of, or by, a Holder of such Notes of such series, subject to the terms and conditions set forth in the Indenture, directly against the New Guarantors to enforce the Guarantee without first proceeding against the Company or any other guarantor. The New Guarantors agree that if, after the occurrence and during the continuance of an Event of Default with respect to an applicable series of Notes, the Trustee or any of the Holders are prevented by applicable law from exercising their respective rights to accelerate the maturity of the Notes of such series, to collect interest on the Notes of such series, or to enforce or exercise any other right or remedy with respect to the Notes of such series, the New Guarantors will pay to the Trustee for the account of the Holders, upon demand therefor, the amount that would otherwise have been due and payable had such rights and remedies been permitted to be exercised by the Trustee or any of the Holders. Any term or provision of this Supplemental Indenture to the contrary notwithstanding, the maximum aggregate amount of the Obligations guaranteed hereunder by each New Guarantor shall not exceed the maximum amount that can be hereby guaranteed without rendering this Supplemental Indenture, as it relates to such New Guarantor, voidable under applicable law relating to fraudulent conveyance or fraudulent transfer or similar laws affecting the rights of creditors generally.
(c) With respect to an applicable series of Notes, unless and until the Termination Date (as defined herein) has occurred, or the New Guarantors shall be released in accordance with Section 204 of this Supplemental Indenture, to the fullest extent permitted by applicable law, the New Guarantors shall remain obligated hereunder and the Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against the Company for liquidation or reorganization, should the Company become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Company’s assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Notes of such series are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Notes of such series, whether as a “voidable preference”, “fraudulent transfer” or otherwise, all as though such payment or performance had not been made. In the event that any payment, or any part thereof, is rescinded, reduced, restored or returned, the Notes of such series shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned.
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(d) To the fullest extent permitted by applicable law, the New Guarantors waive diligence, presentment, protest and notice of protest, demand for payment or performance, notice of default or nonpayment, notice of acceptance and any other notice in respect of the Company’s obligations under any series of Notes and under the Indenture, and any defense arising by reason of any disability or other defense of the Company or the New Guarantors with respect to such obligations (other than the defense that the Termination Date has occurred or the New Guarantors have been released in accordance with Section 204 of this Supplemental Indenture). The New Guarantors understand and agree that this Agreement shall be construed as a continuing, absolute and unconditional guarantee of payment and performance and not merely of collectability, and its Guarantee of a particular series of Notes and the obligations of the Company under the Indenture hereunder shall not be affected by, and shall remain in full force and effect without regard to, and hereby waives all rights, claims or defenses that it might otherwise have (now or in the future) with respect to each of the following (whether or not the New Guarantors have knowledge thereof): (i) the validity, regularity or enforceability of the Notes of such series or the Indenture or the absence of any action to enforce the same, (ii) the recovery of any judgment against the Company or any action to enforce the same, (iii) any renewal, extension or acceleration of, or any increase in the amount of the Company’s obligations under such series of Notes and under the Indenture (whether or not any increase is committed, contemplated or provided for by the Indenture or the Notes of such series on the date hereof), (iv) any failure, omission or delay in enforcement (by agreement or otherwise), or the stay or enjoining (by court order, operation of law or otherwise) of the exercise of enforcement, of any claim or demand or any right, power or remedy (whether arising under the Indenture or the Notes of such series, at law, in equity or otherwise) with respect to the Company’s obligations under such series of Notes and under the Indenture or (v) any other circumstance whatsoever (with or without notice to or knowledge of the New Guarantors) which constitutes, or might be construed to constitute, an equitable or legal discharge of the New Guarantors under the Guarantee contained in this Article 2, in bankruptcy or in any other instance (in each case, other than the occurrence of the Termination Date or the release of the New Guarantors in accordance with Section 204 of this Supplemental Indenture).
(e) The New Guarantors further agree that, as between the New Guarantors, on the one hand, and the Holders and the Trustee, on the other hand (i) subject to the terms and provisions of this Supplemental Indenture, the maturity of the obligations under an applicable series of Notes guaranteed hereby may be accelerated as provided in Article VI of the Indenture for the purposes of this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (ii) in the event of any acceleration of such obligations as provided in Article VI of the Indenture, such obligations (whether or not due and payable) shall forthwith become due and payable by the New Guarantors for the purpose of this Guarantee.
(f) Subject to Section 204 of this Supplemental Indenture, the Guarantee of a series of Notes contained in this Article 2 shall remain in full force and effect until all the obligations of the Company under such series of Notes and under the Indenture shall have been satisfied by payment in full (such date, the “Termination Date”).
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(g) The Guarantee by the New Guarantors of a series of Notes shall be independent of and shall not be affected by the Guarantee by the New Guarantor of any other series of Notes.
(h) For the avoidance of doubt, none of the New Guarantors are Guarantors under the Indenture. The guarantee of the New Guarantors is granted solely pursuant to and in accordance with the terms set forth in this Article 2.
Section 202 Subrogation. The New Guarantors shall be subrogated to all rights of Holders against the Company in respect of any amounts paid by the New Guarantors pursuant to its Guarantee; provided, however, that if an Event of Default has occurred and is continuing with respect to a series of Notes, the New Guarantors shall not be entitled to enforce or receive any payments arising out of, or based upon, such right of subrogation until all amounts then due and payable by the Company under the Indenture or the applicable series of Notes shall have been paid in full.
Section 203 Reinstatement. Subject to Section 204 of this Supplemental Indenture, the Guarantee of a series of Notes contained in this Article 2 shall continue to be effective, or be reinstated, as the case may be, if at any time payment, or any part thereof, of any of the Company’s obligations with respect to such series of Notes or the Indenture is rescinded or must otherwise be restored or returned by the Trustee or any Holder upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of the New Guarantors, or upon or as a result of the appointment of a receiver, intervenor or conservator of, or trustee or similar officer for, the New Guarantors or any substantial part of its property, or otherwise, all as though such payments had not been made.
Section 204 Release of Guarantee. Any New Guarantor shall, upon the occurrence of any of the following events, be automatically and unconditionally released and discharged from all obligations with respect to the Notes of an applicable series, the Indenture and the Guarantee of such series of Notes without any action required on the part of the Trustee or any Holder:
(a) upon the occurrence of a Collateral Release Event;
(b) at such time as such New Guarantor is either: (i) not an issuer or guarantor of any item of Indebtedness for Borrowed Money (whether by repayment or otherwise) and any other Equally and Ratably Secured Indebtedness and ceases (or substantially concurrently will cease) to be the guarantor of any Equally and Ratably Secured Indebtedness (or such New Guarantor’s obligations with respect to all Equally and Ratably Secured Indebtedness shall cease to exist substantially concurrently with such release of its Guarantee); or (ii) released or relieved as an issuer or guarantor of its obligations of an item of Indebtedness for Borrowed Money (whether by repayment or otherwise) and not an issuer or guarantor of any other Equally and Ratably Secured Indebtedness and ceases (or substantially concurrently will cease) to be the guarantor of any Equally and Ratably Secured Indebtedness (or such New Guarantor’s obligations with respect to all Equally and Ratably Secured Indebtedness shall cease to exist substantially concurrently with such release of its Guarantee);
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(c) upon the release by the Administrative Agent of the Guarantee (as defined in the Guarantee and Collateral Agreement (as defined in the Charter Credit Agreement)) of such New Guarantor;
(d) upon the consummation of any transaction not prohibited by the Indenture that results in such New Guarantor ceasing to be a subsidiary of CCO;
(e) upon any covenant defeasance or legal defeasance with respect to such series of Notes and the Indenture, or upon the discharge of the Company’s obligations with respect to such series of Notes and obligations under the Indenture in accordance with its terms;
(f) upon (i) the consolidation or merger by the Company with or into any Person or (ii) the conveyance, transfer or lease of all or substantially all the assets of the Company, in a transaction that complies with the Indenture, such that the Company ceases to be a subsidiary of Cox Enterprise; or
(g) upon (i) the consolidation or merger by Cox Enterprise with or into any Person or (ii) the conveyance, transfer or lease of all or substantially all the assets of Cox Enterprise, such that the Company ceases to be a subsidiary of Cox Enterprise.
The release of the New Guarantors’ Guarantee of an applicable series of Notes hereunder shall be independent of and shall not be affected by the release of the New Guarantors’ Guarantee of any other series of Notes. At the request and sole expense of the Company following any such termination, Collateral Agent shall execute and deliver to the Company such documents as the Company shall reasonably request to evidence such termination.
Section 205 Execution and Delivery. The New Guarantors hereby agree that the Guarantee of an applicable series of Notes will remain in full force and effect notwithstanding any failure to endorse on each Note of such series a notation of such Guarantee.
Article 3
MISCELLANEOUS PROVISIONS
The Trustee and the Collateral Agent make no undertaking or representations in respect of, and shall not be responsible in any manner whatsoever for and in respect of, the validity or sufficiency of this Supplemental Indenture and the Guarantee or the proper authorization or the due execution hereof by the Company or the Guarantor or for or in respect of the recitals and statements contained herein, all of which recitals and statements are made solely by the Company.
This Supplemental Indenture shall be governed by, and construed in accordance with, the laws of the State of New York.
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Each of the Company, the Guarantors, the Trustee and the Collateral Agent (i) expressly and irrevocably consents to submit itself to the exclusive personal jurisdiction of the state courts in the Borough of Manhattan in the City of New York in the State of New York, and any federal court located in the Borough of Manhattan in the City of New York in the State of New York, together with any appellate court therefrom, with respect to all actions and proceedings arising out of the Indenture or the Guarantees and (ii) expressly and irrevocably waives (and agrees not to plead or claim) any objection to the laying of venue of any action or proceeding arising out of the Indenture or the Guarantees in such court or that any such action or proceeding brought in any such court has been brought in an inconvenient forum.
This Supplemental Indenture may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument. Any such counterparts may be executed manually, electronically or by facsimile.
EACH OF THE COMPANY, THE GUARANTORS, THE TRUSTEE, THE COLLATERAL AGENT AND THE HOLDERS BY ACCEPTANCE OF THE NOTES HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS SUPPLEMENTAL INDENTURE, THE NOTES OR THE TRANSACTION CONTEMPLATED HEREBY.
In order to comply with applicable tax laws (inclusive of rules, regulations and interpretations promulgated by competent authorities) related to the Indenture in effect from time to time (collectively, “Applicable Tax Law”) that a foreign financial institution, issuer, trustee, paying agent or other party is or has agreed to be subject to, the Company agrees (i) upon reasonable written request of the Trustee, to use commercially reasonable efforts to provide to the Trustee, to the extent available, sufficient information about the parties and/or transactions (including any modification to the terms of such transactions) so that the Trustee can determine whether it has tax-related obligations under Applicable Tax Law and (ii) that the Trustee shall be entitled to make any withholding or deduction in respect of taxes from payments under the Indenture to the extent necessary to comply with Applicable Tax Law for which the Trustee shall not have any liability. Nothing in the immediately preceding sentence shall be construed as obligating the Company to make any “gross up” payment or similar reimbursement in connection with a payment in respect of which amounts are so withheld or deducted. The terms of this paragraph shall survive the satisfaction and discharge of the Indenture.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the Parties have executed this Supplemental Indenture by their duly authorized signatories as of the date first above written.
| COX COMMUNICATIONS, INC., as Issuer | ||
| By: | /s/ Jeffrey B. Murphy | |
| Name: Jeffrey B. Murphy | ||
| Title: Authorized Signatory | ||
[Signature Page to CCI Supplemental Indenture]
| COX COMMUNICATIONS, INC., as Issuer | ||
| By: | /s/ Jeffrey B. Murphy | |
| Name: Jeffrey B. Murphy | ||
| Title: Authorized Signatory | ||
[Signature Page to CCI Supplemental Indenture]
| COX ENTERPRISES, INC., as Guarantor | ||
| By: | /s/ Jeffrey B. Murphy | |
| Name: Jeffrey B. Murphy | ||
| Title: Authorized Signatory | ||
[Signature Page to CCI Supplemental Indenture]
| EACH OF THE GUARANTORS LISTED ON SCHEDULE I HERETO, as a Guarantor | ||
| By: | /s/ Jeffrey B. Murphy | |
| Name: Jeffrey B. Murphy | ||
| Title: Senior Vice President, Corporate Finance and Development | ||
[Signature Page to CCI Supplemental Indenture]
| THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee and Collateral Agent | ||
| By: | /s/ Jeffrey B. Murphy | |
| Name: Jeffrey B. Murphy | ||
| Title: Authorized Signatory | ||
[Signature Page to CCI Supplemental Indenture]
SCHEDULE I
Note Guarantors
CCO Holdings, LLC
Bresnan Broadband Holdings, LLC
CCO NR Holdings, LLC
Charter Communications ASC, LLC
Charter Communications, LLC
Charter Communications SSC, LLC
Charter Communications VI HoldCo, LLC
Charter Communications VI, L.L.C.
Charter Distribution, LLC
Charter Leasing Holding Company, LLC
Charter Procurement Leasing, LLC
DukeNet Communications, LLC
Spectrum Advanced Services, LLC
Spectrum Gulf Coast, LLC
Spectrum Mid-America, LLC
Spectrum Mobile Equipment, LLC
Spectrum Mobile, LLC
Spectrum New York Metro, LLC
Spectrum NLP, LLC
Spectrum Northeast, LLC
Spectrum Oceanic, LLC
Spectrum Originals Development, LLC
Spectrum Originals, LLC
Spectrum Pacific West, LLC
Spectrum Reach, LLC
Spectrum RSN, LLC
Spectrum Southeast, LLC
Spectrum Sunshine State, LLC
Spectrum TV Essentials, LLC
Spectrum Wireless Holdings, LLC
Time Warner Cable Enterprises LLC
Time Warner Cable, LLC
TWC Administration LLC
TWC Communications, LLC
TWC SEE Holdco LLC
Exhibit 4.3
TIME WARNER CABLE, LLC,
the guarantors named on Schedule I hereto,
the guarantors named on Schedule II hereto
and
THE BANK OF NEW YORK MELLON,
as Trustee
ELEVENTH SUPPLEMENTAL INDENTURE
Dated as of August 24, 2026
Supplemental to Indenture
Dated as of April 9, 2007
ELEVENTH SUPPLEMENTAL INDENTURE
THIS ELEVENTH SUPPLEMENTAL INDENTURE among TIME WARNER CABLE, LLC, a Delaware limited liability company (the “Company”), the guarantors named on Schedule I hereto (the “Cox Guarantors”), the guarantors named on Schedule II hereto (the “Charter Guarantors” and, together with the Cox Guarantors, the “New Guarantors”) and THE BANK OF NEW YORK MELLON, as trustee (the “Trustee”), is made and entered into as of August 24, 2026.
WITNESSETH
WHEREAS, the Company (as successor to Time Warner Cable Inc.), Time Warner Cable Enterprises LLC (as successor to Time Warner Entertainment Company, L.P., a Delaware limited partnership (“TWE”)), and the Trustee have heretofore executed and delivered an Indenture, dated as of April 9, 2007, as supplemented by the First Supplemental Indenture dated as of April 9, 2007, the Second Supplemental Indenture dated as of September 30, 2012, the Third Supplemental Indenture dated as of May 18, 2016, the Fourth Supplemental Indenture dated as of May 18, 2016 (the “Fourth Supplemental Indenture”), the Fifth Supplemental Indenture, dated as of November 1, 2016 (the “Fifth Supplemental Indenture”), the Sixth Supplemental Indenture, dated as of December 21, 2017, the Seventh Supplemental Indenture, dated as of July 27, 2018, the Eighth Supplemental Indenture, dated as of June 21, 2019 (the “Eighth Supplemental Indenture”), the Ninth Supplemental Indenture, dated as of September 6, 2019 and the Tenth Supplemental Indenture, dated as of November 19, 2020 (as so supplemented, the “Indenture”), providing for, among other things, (i) the issuance from time to time of the Company’s debentures, notes, bonds or other evidences of indebtedness (hereinafter called “Securities”) in one or more fully registered series and (ii) the guarantees of the Securities by the guarantors party thereof;
WHEREAS, Section 9.01(11) of the Indenture provides that the Company and the Trustee may enter into one or more supplemental indentures for the purpose of adding additional guarantors in respect of the Securities;
WHEREAS, on May 16, 2025, Charter Communications, Inc., a Delaware corporation (“Charter”), Charter Communications Holdings, LLC (“Charter Holdings”) and Cox Enterprises, Inc. (“Cox Enterprises”) entered into a Transaction Agreement pursuant to which Charter acquired the commercial fiber and managed IT and cloud services businesses of Cox Communications, Inc. (“Cox Communications”) and Cox Enterprises contributed the residential cable business of Cox Communications to Charter Holdings (the “Transactions”);
WHEREAS, in connection with the Transactions, the Company desires to add the New Guarantors as additional guarantors under the Indenture;
WHEREAS, Article Two, clause (b) of the Fourth Supplemental Indenture provides that the guarantee of each of the New Guarantors (as defined in the Fourth Supplemental Indenture) shall terminate and be of no further force or effect and each such New Guarantor shall be automatically released from all obligations under the Indenture, the Securities and such guarantee upon receipt by the Trustee of a certificate of a Responsible Officer of the Company certifying that such New Guarantor is released or relieved as an issuer or guarantor of its obligations of an item of Indebtedness For Borrowed Money (whether by repayment or otherwise) and not an issuer or guarantor of any other Equally and Ratably Secured Indebtedness and ceases (or substantially concurrently will cease) to be the guarantor of any Equally or Ratably Secured Indebtedness (or such New Guarantor’s obligations with respect to all Equally and Ratably Secured Indebtedness shall cease to exist substantially concurrently with such release of its guarantee), and Article Two of the Fourth Supplemental Indenture further provides that the Trustee agrees to execute a supplemental indenture to evidence the release of any New Guarantor under such Article Two and any obligations under the Indenture upon the request of the Company in compliance with Section 1.02 of the Indenture;
WHEREAS, Article Three, clause (b) of the Fifth Supplemental Indenture provides that the guarantee of each of the Additional Guarantors (as defined in the Fifth Supplemental Indenture) shall terminate and be of no further force or effect and each such Additional Guarantor shall be automatically released from all obligations under the Indenture, the Securities and such guarantee upon receipt by the Trustee of a certificate of a Responsible Officer of the Company certifying that such Additional Guarantor is released or relieved as an issuer or guarantor of its obligations of an item of Indebtedness For Borrowed Money (whether by repayment or otherwise) and not an issuer or guarantor of any other Equally and Ratably Secured Indebtedness and ceases (or substantially concurrently will cease) to be the guarantor of any Equally or Ratably Secured Indebtedness (or such Additional Guarantor’s obligations with respect to all Equally and Ratably Secured Indebtedness shall cease to exist substantially concurrently with such release of its guarantee), and Article Three of the Fifth Supplemental Indenture further provides that the Trustee agrees to execute a supplemental indenture to evidence the release of any Additional Guarantor under such Article Three and any obligations under the Indenture upon the request of the Company in compliance with Section 1.02 of the Indenture;
WHEREAS, Article Three, clause (b) of the Eighth Supplemental Indenture provides that the guarantee of each of the Other Guarantors (as defined in the Eighth Supplemental Indenture) shall terminate and be of no further force or effect and each such Other Guarantor shall be automatically released from all obligations under the Indenture, the Securities and such guarantee upon receipt by the Trustee of a certificate of a Responsible Officer of the Company certifying that such Other Guarantor is released or relieved as an issuer or guarantor of its obligations of an item of Indebtedness For Borrowed Money (whether by repayment or otherwise) and not an issuer or guarantor of any other Equally and Ratably Secured Indebtedness and ceases (or substantially concurrently will cease) to be the guarantor of any Equally or Ratably Secured Indebtedness (or such Other Guarantor’s obligations with respect to all Equally and Ratably Secured Indebtedness shall cease to exist substantially concurrently with such release of its guarantee), and Article Three of the Eighth Supplemental Indenture further provides that the Trustee agrees to execute a supplemental indenture to evidence the release of any Other Guarantor under such Article Three and any obligations under the Indenture upon the request of the Company in compliance with Section 1.02 of the Indenture;
WHEREAS, as of the date hereof, each of the entities named on Schedule III hereto (the “Released Guarantors”) have been released from their obligations as guarantors under the Credit Agreement, and substantially concurrently herewith, each Released Guarantor will cease to be a guarantor of any Equally and Ratably Secured Indebtedness;
WHEREAS, Section 9.01(12) of the Indenture provides that the Company and the Trustee may enter into one or more supplemental indentures to make any other change that does not adversely affect the rights of the Holders (as defined in the Indenture) of any or all series of Securities;
WHEREAS, the Company and the New Guarantors have duly authorized the execution and delivery of this Eleventh Supplemental Indenture to provide for the addition of the New Guarantors and the release the guarantees by the Released Guarantors;
WHEREAS, this Eleventh Supplemental Indenture is being executed pursuant to and in accordance with Article Two of the Fourth Supplemental Indenture, Article Three of the Fifth Supplemental Indenture, Article Three of the Eighth Supplemental Indenture and Section 9.01 of the Indenture; and
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WHEREAS, all things necessary to make this Eleventh Supplemental Indenture a valid agreement of the Company and the New Guarantors in accordance with its terms have been done.
NOW THEREFORE:
In consideration of the premises provided for herein, the Company, the New Guarantors and the Trustee mutually covenant and agree for the equal and proportionate benefit of all Holders of the Securities as follows:
Article
One
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01 Incorporation of Previous Documents.
This Eleventh Supplemental Indenture is a supplemental indenture within the meaning of the Indenture and shall be read together therewith, and shall have the same effect as though all the provisions thereof and hereof were contained in one instrument. Unless otherwise expressly provided, the provisions of the Indenture are incorporated herein by reference.
Section 1.02 Definitions.
Except as otherwise expressly provided herein or unless the context otherwise requires, each capitalized term that is used in this Eleventh Supplemental Indenture but not defined herein shall have the meaning specified in the Indenture. The terms “hereof,” “herein,” “hereunder” and other words of similar import refer to this Eleventh Supplemental Indenture.
Section 1.03 Parties.
Nothing expressed or mentioned herein is intended or shall be construed to give any Person, firm or corporation, other than the Holders and the Trustee, any legal or equitable right, remedy or claim under or in respect of this Eleventh Supplemental Indenture or the Indenture or any provision herein or therein contained.
Section 1.04 Governing Law.
THIS ELEVENTH SUPPLEMENTAL INDENTURE SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
Section 1.05 Severability.
In case any provision in this Eleventh Supplemental Indenture shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby and such provision shall be ineffective only to the extent of such invalidity, illegality or unenforceability.
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Section 1.06 Ratification of Indenture; Supplemental Indenture Part of Indenture.
Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Eleventh Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of the Securities heretofore or hereafter authenticated and delivered shall be bound hereby.
Section 1.07 Acceptance by Trustee.
The Trustee accepts the amendments to the Indenture effected by this Eleventh Supplemental Indenture. Without limiting the generality of the foregoing, the Trustee assumes no responsibility for the correctness of the recitals or statements contained herein, which shall be taken as the statements of the parties hereto other than the Trustee and the Trustee shall not be responsible or accountable in any way whatsoever for or with respect to the validity or execution or sufficiency of this Eleventh Supplemental Indenture and the Trustee makes no representation with respect thereto.
Section 1.08 Counterparts.
This Eleventh Supplemental Indenture may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument. The exchange of copies of this Eleventh Supplemental Indenture and of signature pages by PDF transmission shall constitute effective execution and delivery of this Eleventh Supplemental Indenture as to the parties hereto and may be used in lieu of the original Supplemental Indenture for all purposes. Signatures of the parties hereto transmitted by PDF shall be deemed to be their original signatures for all purposes.
Section 1.09 Interpretation.
This document shall not be used and is not intended to be used to interpret any other document or agreement other than the Indenture.
Section 1.10 Headings.
The headings of the Articles and the Sections in this Eleventh Supplemental Indenture are for convenience of reference only and shall not be deemed to alter or affect the meaning or interpretation of any provisions hereof.
Article Two
RELEASE OF GUARANTEE
The Trustee hereby acknowledges, without recourse, representation or warranty, that the guarantee of each of the Released Guarantors has been terminated as of the date hereof and shall be of no further force or effect, and each of the Released Guarantors has been released from all obligations under the Indenture, the Securities and such guarantee.
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Article
Three
AGREEMENT TO GUARANTEE
By execution of this Eleventh Supplemental Indenture, each of the New Guarantors will fully, irrevocably and unconditionally guarantee, to each Holder of Securities and to the Trustee and its successors and assigns (i) the full and punctual payment of principal of and interest on the Securities when due, whether at maturity, by acceleration, by redemption or otherwise, and all other monetary obligations of the Company under the Indenture (including obligations to the Trustee) and the Securities and (ii) the full and punctual performance within applicable grace periods of all other obligations of the Company under the Indenture and the Securities; provided that such guarantee shall terminate and be of no further force or effect and such New Guarantor shall be automatically released from all obligations hereunder and under the Indenture, any Securities and this guarantee if at least one of the following conditions has been met:
(a) upon the occurrence of a Collateral Release Event;
(b) at such time as such New Guarantor is either (in all cases whether by repayment or otherwise): (A) not an issuer or guarantor of any item of Indebtedness for Borrowed Money and any other Equally and Ratably Secured Indebtedness and ceases (or substantially concurrently will cease) to be the guarantor of any Equally and Ratably Secured Indebtedness (or such New Guarantor’s obligations with respect to all Equally and Ratably Secured Indebtedness shall cease to exist substantially concurrently with such release of its guarantee); or (B) released or relieved as an issuer or guarantor of its obligations of an item of Indebtedness for Borrowed Money and not an issuer or guarantor of any other Equally and Ratably Secured Indebtedness and ceases (or substantially concurrently will cease) to be the guarantor of any Equally and Ratably Secured Indebtedness (or such New Guarantor’s obligations with respect to all Equally and Ratably Secured Indebtedness shall cease to exist substantially concurrently with such release of its guarantee);
(c) upon the sale, disposition, exchange or other transfer (including through merger, consolidation, amalgamation or otherwise) of (i) all or substantially all the assets of or (ii) any Equity Interests of the capital stock (including any sale, disposition or other transfer following which the applicable New Guarantor is no longer a Subsidiary), of such New Guarantor if such sale, disposition, exchange or other transfer is made in a manner not in violation of this Indenture;
(d) at such time such New Guarantor ceases to be guarantee obligations (whether by repayment or otherwise) under the Credit Agreement or any replacement thereof; and
(e) upon the exercise of any legal defeasance option or covenant defeasance option under this Indenture or if any obligations relating to the Securities are discharged or defeased in accordance with the terms of this Indenture.
Unless otherwise defined herein, capitalized terms used in this Article Three shall have the meanings ascribed to them in that certain Indenture, dated as of July 23, 2015, as amended, supplemented and modified from time to time, by and among Charter Communications Operating, LLC, Charter Communications Operating Capital Corp. and CCO Safari II, LLC, as issuers, and The Bank of New York Mellon Trust Company, N.A., as trustee and collateral agent, mutatis mutandis.
The Trustee agrees to execute a supplemental indenture to evidence the release of any New Guarantor hereunder and any obligations under the Indenture upon the request of the Company in compliance with Section 1.02 of the Indenture; provided that the release shall be effective whether or not such supplemental indenture is executed.
For the avoidance of doubt, none of the New Guarantors are Guarantors under the Indenture. The guarantee of the New Guarantors is granted solely pursuant to and in accordance with the terms set forth in this Article Three.
The Company hereby certifies to the Trustee that the issuer and guarantors of the Securities after giving effect to this Eleventh Supplemental Indenture are set forth on Schedule IV hereto.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK.]
5
IN WITNESS WHEREOF, the parties hereto have caused this Eleventh Supplemental Indenture to be duly executed as of the day and year first written above.
| TIME WARNER CABLE, LLC | |||
| By: | /s/ Jeffrey B. Murphy | ||
| Name: | Jeffrey B. Murphy | ||
| Title: | Senior Vice President, Corporate Finance and Development | ||
| THE GUARANTORS NAMED ON SCHEDULE I HERETO | |||
| By: | /s/ Jeffrey B. Murphy | ||
| Name: | Jeffrey B. Murphy | ||
| Title: | Authorized Signatory | ||
| THE GUARANTORS NAMED ON SCHEDULE II HERETO | |||
| By: | /s/ Jeffrey B. Murphy | ||
| Name: | Jeffrey B. Murphy | ||
| Title: | Senior Vice President, Corporate Finance and Development | ||
[Signature Page to Eleventh Supplemental Indenture]
| THE BANK OF NEW YORK MELLON, | |||
| as Trustee | |||
| By: | /s/ Terence Rawlins | ||
| Name: | Terence Rawlins | ||
| Title: | Vice President[ | ||
[Signature Page to Eleventh Supplemental Indenture]
Schedule I
Cox Guarantors
BPRF Holdings, LLC, a Delaware limited liability company
CB Commercial Devices, LLC, a Delaware limited liability company
CCI Corporate Services, LLC, a Delaware limited liability company
CCI Devices, LLC, a Delaware limited liability company
Cox Advanced Services Arizona, LLC, a Delaware limited liability company
Cox Advanced Services Arkansas, LLC, a Delaware limited liability company
Cox Advanced Services California, LLC, a Delaware limited liability company
Cox Advanced Services Connecticut, LLC, a Delaware limited liability company
Cox Advanced Services Florida, LLC, a Delaware limited liability company
Cox Advanced Services Georgia, LLC, a Delaware limited liability company
Cox Advanced Services Idaho, LLC, a Delaware limited liability company
Cox Advanced Services Iowa, LLC, a Delaware limited liability company
Cox Advanced Services Kansas, LLC, a Delaware limited liability company
Cox Advanced Services Louisiana, LLC, a Delaware limited liability company
Cox Advanced Services Nebraska, LLC, a Delaware limited liability company
Cox Advanced Services Nevada, LLC, a Delaware limited liability company
Cox Advanced Services North Carolina, LLC, a Delaware limited liability company
Cox Advanced Services Ohio, LLC, a Delaware limited liability company
Cox Advanced Services Oklahoma, LLC, a Delaware limited liability company
Cox Advanced Services Rhode Island, LLC, a Delaware limited liability company
Cox Advanced Services Virginia, LLC, a Delaware limited liability company
Cox Arizona Telcom, L.L.C., a Delaware limited liability company
Cox Arkansas Telcom, L.L.C., a Delaware limited liability company
Cox California Telcom, L.L.C., a Delaware limited liability company
Cox Colorado Telcom, L.L.C., a Delaware limited liability company
Cox Communications Arizona, LLC, a Delaware limited liability company
Cox Communications California, LLC, a Delaware limited liability company
Cox Communications EBD Holdings, LLC, a Delaware limited liability company
Cox Communications Georgia, LLC, a Delaware limited liability company
Cox Communications Gulf Coast, LLC, a Delaware limited liability company
Cox Communications Hampton Roads, L.L.C., a Delaware limited liability company
Cox Communications Kansas, L.L.C., a Delaware limited liability company
Cox Communications Las Vegas, LLC, a Delaware limited liability company
Cox Communications Louisiana, L.L.C., a Delaware limited liability company
Cox Communications Missouri, LLC, a Delaware limited liability company
Cox Communications NCC, LLC, a Delaware limited liability company
Cox Communications Omaha, L.L.C., a Delaware limited liability company
Cox Communications Tower, LLC, a Delaware limited liability company
Cox Communications, LLC, a Delaware limited liability company
Cox Connecticut Telcom, L.L.C., a Delaware limited liability company
Cox Florida Telcom, L.P., a Delaware limited partnership
Cox HMS, LLC, a Delaware limited liability company
Cox Horizon Growth, LLC, a Delaware limited liability company
Cox Idaho Telcom, L.L.C., a Delaware limited liability company
Cox Iowa Telcom, L.L.C., a Delaware limited liability company
Cox Kansas Telcom, L.L.C., a Delaware limited liability company
Cox LAHC, LLC, a Delaware limited liability company
Cox Media, L.L.C., a Delaware limited liability company
Cox Missouri Telcom, LLC, a Delaware limited liability company
Cox Nebraska Telcom, L.L.C., a Delaware limited liability company
Cox Nevada Telcom, L.L.C., a Delaware limited liability company
Cox North Carolina Telcom, L.L.C., a Delaware limited liability company
Cox Ohio Telcom, L.L.C., a Delaware limited liability company
Cox Oklahoma Telcom, L.L.C., a Delaware limited liability company
Cox Rhode Island Telcom, L.L.C., a Delaware limited liability company
Cox TMI, LLC, a Delaware limited liability company
Cox Virginia Telcom, L.L.C., a Virginia limited liability company
COX WIRELESS ACCESS, LLC, a Delaware limited liability company
COX/CHARTER MASTER CABLE ADVERTISING, LLC, a Delaware limited liability company
CoxCom, LLC, a Delaware limited liability company
Fiber Platform Blocker, LLC, a Delaware limited liability company
FIBER PLATFORM HOLDINGS, LLC, a Delaware limited liability company
FIBER PLATFORM, LLC, a Delaware limited liability company
Hospitality Network Louisiana, L.L.C., a Delaware limited liability company
Hospitality Network Pennsylvania, LLC, a Delaware limited liability company
Hospitality Network, L.L.C., a Delaware limited liability company
Logicworks Systems, LLC, a Delaware limited liability company
RapidScale, LLC, a California limited liability company
TMI Partner Holdings, LLC, a Delaware limited liability company
Unite Private Networks-Illinois, L.L.C. a Delaware limited liability company
UPN Intermediate Holdings LLC, a Delaware limited liability company
Schedule II
Charter Guarantors
Charter Communications ASC, LLC
Charter Communications SSC, LLC
Schedule III
Released Guarantors
Time Warner Cable Information Services (Colorado), LLC
Time Warner Cable Information Services (Hawaii), LLC
Time Warner Cable Information Services (Idaho), LLC
Time Warner Cable Information Services (Illinois), LLC
Time Warner Cable Information Services (Indiana), LLC
Time Warner Cable Information Services (Kansas), LLC
Time Warner Cable Information Services (Kentucky), LLC
Time Warner Cable Information Services (Maine), LLC
Time Warner Cable Information Services (Massachusetts), LLC
Time Warner Cable Information Services (Michigan), LLC
Time Warner Cable Information Services (Missouri), LLC
Time Warner Cable Information Services (Nebraska), LLC
Time Warner Cable Information Services (New Hampshire), LLC
Time Warner Cable Information Services (New Jersey), LLC
Time Warner Cable Information Services (New Mexico) LLC
Time Warner Cable Information Services (New York), LLC
Time Warner Cable Information Services (North Carolina), LLC
Time Warner Cable Information Services (Ohio), LLC
Time Warner Cable Information Services (Pennsylvania), LLC
Time Warner Cable Information Services (South Carolina), LLC
Time Warner Cable Information Services (Tennessee), LLC
Time Warner Cable Information Services (Texas), LLC
Time Warner Cable Information Services (Virginia), LLC
Time Warner Cable Information Services (Washington), LLC
Time Warner Cable Information Services (West Virginia), LLC
Time Warner Cable Information Services (Wisconsin), LLC
TWC Media Blocker LLC
TWC Security LLC
TWC Wireless LLC
BHN Home Security Services, LLC
American Cable Entertainment Company, LLC
Bresnan Microwave of Montana, LLC
CC Systems, LLC
CCO Transfers, LLC
Charter Advanced Services (MN), LLC
Charter Advanced Services (MO), LLC
Charter Advanced Services VIII (MN), LLC
Charter Communications Entertainment I, LLC
Charter Communications Entertainment II, LLC
Charter Communications Operating Capital Corp.
Charter Communications Operating, LLC
Charter Communications VII, LLC
Charter Fiberlink - Alabama, LLC
Charter Fiberlink – Illinois, LLC
Charter Helicon, LLC
Falcon Cable Communications, LLC
Helicon Partners I, L.P.
Long Beach, LLC
Phone Transfers (AL), LLC
Phone Transfers (CA), LLC
Phone Transfers (GA), LLC
Phone Transfers (NC), LLC
Phone Transfers (TN), LLC
Phone Transfers (VA), LLC
The Helicon Group, L.P.
VOIP Transfers (AL), LLC
VOIP Transfers (CA) LLC
VOIP Transfers (GA), LLC
VOIP Transfers (NC), LLC
VOIP Transfers (TN), LLC
VOIP Transfers (VA), LLC
TC Technology LLC
TWC/Charter Los Angeles Cable Advertising, LLC
Schedule IV
Issuers and Guarantors of the Securities
BPRF Holdings, LLC, a Delaware limited liability company
Bresnan Broadband Holdings, LLC
CB Commercial Devices, LLC, a Delaware limited liability company
CCI Corporate Services, LLC, a Delaware limited liability company
CCI Devices, LLC, a Delaware limited liability company
CCO Holdings, LLC
CCO NR Holdings, LLC
Charter Communications ASC, LLC
Charter Communications SSC, LLC
Charter Communications VI HoldCo, LLC
Charter Communications VI, L.L.C.
Charter Communications, LLC
Charter Distribution, LLC
Charter Leasing Holding Company, LLC
Charter Procurement Leasing, LLC
Cox Advanced Services Arizona, LLC, a Delaware limited liability company
Cox Advanced Services Arkansas, LLC, a Delaware limited liability company
Cox Advanced Services California, LLC, a Delaware limited liability company
Cox Advanced Services Connecticut, LLC, a Delaware limited liability company
Cox Advanced Services Florida, LLC, a Delaware limited liability company
Cox Advanced Services Georgia, LLC, a Delaware limited liability company
Cox Advanced Services Idaho, LLC, a Delaware limited liability company
Cox Advanced Services Iowa, LLC, a Delaware limited liability company
Cox Advanced Services Kansas, LLC, a Delaware limited liability company
Cox Advanced Services Louisiana, LLC, a Delaware limited liability company
Cox Advanced Services Nebraska, LLC, a Delaware limited liability company
Cox Advanced Services Nevada, LLC, a Delaware limited liability company
Cox Advanced Services North Carolina, LLC, a Delaware limited liability company
Cox Advanced Services Ohio, LLC, a Delaware limited liability company
Cox Advanced Services Oklahoma, LLC, a Delaware limited liability company
Cox Advanced Services Rhode Island, LLC, a Delaware limited liability company
Cox Advanced Services Virginia, LLC, a Delaware limited liability company
Cox Arizona Telcom, L.L.C., a Delaware limited liability company
Cox Arkansas Telcom, L.L.C., a Delaware limited liability company
Cox California Telcom, L.L.C., a Delaware limited liability company
Cox Colorado Telcom, L.L.C., a Delaware limited liability company
Cox Communications Arizona, LLC, a Delaware limited liability company
Cox Communications California, LLC, a Delaware limited liability company
Cox Communications EBD Holdings, LLC, a Delaware limited liability company
Cox Communications Georgia, LLC, a Delaware limited liability company
Cox Communications Gulf Coast, LLC, a Delaware limited liability company
Cox Communications Hampton Roads, L.L.C., a Delaware limited liability company
Cox Communications Kansas, L.L.C., a Delaware limited liability company
Cox Communications Las Vegas, LLC, a Delaware limited liability company
Cox Communications Louisiana, L.L.C., a Delaware limited liability company
Cox Communications Missouri, LLC, a Delaware limited liability company
Cox Communications NCC, LLC, a Delaware limited liability company
Cox Communications Omaha, L.L.C., a Delaware limited liability company
Cox Communications Tower, LLC, a Delaware limited liability company
Cox Communications, LLC, a Delaware limited liability company
Cox Connecticut Telcom, L.L.C., a Delaware limited liability company
Cox Florida Telcom, L.P., a Delaware limited partnership
Cox HMS, LLC, a Delaware limited liability company
Cox Horizon Growth, LLC, a Delaware limited liability company
Cox Idaho Telcom, L.L.C., a Delaware limited liability company
Cox Iowa Telcom, L.L.C., a Delaware limited liability company
Cox Kansas Telcom, L.L.C., a Delaware limited liability company
Cox LAHC, LLC, a Delaware limited liability company
Cox Media, L.L.C., a Delaware limited liability company
Cox Missouri Telcom, LLC, a Delaware limited liability company
Cox Nebraska Telcom, L.L.C., a Delaware limited liability company
Cox Nevada Telcom, L.L.C., a Delaware limited liability company
Cox North Carolina Telcom, L.L.C., a Delaware limited liability company
Cox Ohio Telcom, L.L.C., a Delaware limited liability company
Cox Oklahoma Telcom, L.L.C., a Delaware limited liability company
Cox Rhode Island Telcom, L.L.C., a Delaware limited liability company
Cox TMI, LLC, a Delaware limited liability company
Cox Virginia Telcom, L.L.C., a Virginia limited liability company
COX WIRELESS ACCESS, LLC, a Delaware limited liability company
COX/CHARTER MASTER CABLE ADVERTISING, LLC, a Delaware limited liability company
CoxCom, LLC, a Delaware limited liability company
DukeNet Communications, LLC
Fiber Platform Blocker, LLC, a Delaware limited liability company
FIBER PLATFORM HOLDINGS, LLC, a Delaware limited liability company
FIBER PLATFORM, LLC, a Delaware limited liability company
Hospitality Network Louisiana, L.L.C., a Delaware limited liability company
Hospitality Network Pennsylvania, LLC, a Delaware limited liability company
Hospitality Network, L.L.C., a Delaware limited liability company
Logicworks Systems, LLC, a Delaware limited liability company
RapidScale, LLC, a California limited liability company
Spectrum Advanced Services, LLC
Spectrum Gulf Coast, LLC
Spectrum Mid-America, LLC
Spectrum Mobile Equipment, LLC
Spectrum Mobile, LLC
Spectrum New York Metro, LLC
Spectrum NLP, LLC
Spectrum Northeast, LLC
Spectrum Oceanic, LLC
Spectrum Originals Development, LLC
Spectrum Originals, LLC
Spectrum Pacific West, LLC
Spectrum Reach, LLC
Spectrum RSN, LLC
Spectrum Southeast, LLC
Spectrum Sunshine State, LLC
Spectrum TV Essentials, LLC
Spectrum Wireless Holdings, LLC
Time Warner Cable Enterprises LLC
Time Warner Cable, LLC
TMI Partner Holdings, LLC, a Delaware limited liability company
TWC Administration LLC
TWC Communications, LLC
TWC SEE Holdco LLC
Unite Private Networks-Illinois, L.L.C. a Delaware limited liability company
UPN Intermediate Holdings LLC, a Delaware limited liability company
Exhibit 4.4
TIME WARNER CABLE ENTERPRISES LLC,
the guarantors named on Schedule I hereto,
the guarantors named on Schedule II hereto
and
THE BANK OF NEW YORK MELLON.,
as Trustee
Twentieth Supplemental Indenture
Dated as of August 24, 2026
TWENTIETH SUPPLEMENTAL INDENTURE, dated as of August 24, 2026 among TIME WARNER CABLE ENTERPRISES LLC, a Delaware limited liability company (“TWCE”), the guarantors named on Schedule I hereto (the “Cox Guarantors”), the guarantors named on Schedule II hereto (the “Charter Guarantors” and, together with Cox Guarantors, the “New Guarantors”) and THE BANK OF NEW YORK MELLON, a banking corporation duly organized and existing under the laws of New York, as Trustee (the “Trustee”).
RECITALS
TWCE (as successor to Time Warner Entertainment Company, L.P.), Time Warner Cable, LLC (as successor to Time Warner Cable Inc.), and the Trustee are parties to an Indenture dated as of April 30, 1992, as amended by a First Supplemental Indenture dated as of June 30, 1992, a Second Supplemental Indenture dated as of December 9, 1992, a Third Supplemental Indenture dated as of October 12, 1993, a Fourth Supplemental Indenture dated as of March 29, 1994, a Fifth Supplemental Indenture dated as of December 28, 1994, a Sixth Supplemental Indenture dated as of September 29, 1997, a Seventh Supplemental Indenture dated as of December 29, 1997, an Eighth Supplemental Indenture dated as of December 9, 2003, a Ninth Supplemental Indenture dated as of November 1, 2004, a Tenth Supplemental Indenture dated as of October 18, 2006, an Eleventh Supplemental Indenture dated as of November 2, 2006, a Twelfth Supplemented Indenture dated as of September 30, 2012, a Thirteenth Supplemental Indenture dated as of May 18, 2016 (the “Thirteenth Supplemental Indenture”), the Fourteenth Supplemental Indenture dated as of November 1, 2016 (the “Fourteenth Supplemental Indenture”), the Fifteenth Supplemental Indenture dated as of December 21, 2017, the Sixteenth Supplemental Indenture dated as of July 27, 2018, the Seventeenth Supplemental Indenture dated as of June 21, 2019 (the “Seventeenth Supplemental Indenture”), the Eighteenth Supplemental Indenture dated as of September 6, 2019 and the Nineteenth Supplemental Indenture dated as of November 19, 2020 (as so supplemented, the “Indenture”), providing for, among other things, (i) the issuance from time to time of unsecured debentures, notes or other evidences of indebtedness (the “Securities”), to be issued in one or more series as provided in the Indenture and (ii) the guaranties of the Securities by the guarantors party thereof.
WHEREAS, Section 901(7) of the Indenture provides that TWCE may enter into one or more supplemental indentures in order to secure or guarantee any series of the Securities;
WHEREAS, on May 16, 2025, Charter Communications, Inc., a Delaware corporation (“Charter”), Charter Communications Holdings, LLC (“Charter Holdings”), and Cox Enterprises, Inc. (“Cox Enterprises”) entered into a Transaction Agreement pursuant to which Charter acquired the commercial fiber and managed IT and cloud services businesses of Cox Communications, Inc. (“Cox Communications”) and Cox Enterprises contributed the residential cable business of Cox Communications to Charter Holdings. (the “Transaction”);
WHEREAS, in connection with the Transaction, TWCE desires to add the New Guarantors as additional guarantors under the Indenture;
WHEREAS, Article Two, clause (d) of the Thirteenth Supplemental Indenture provides that a guarantee by any New Guarantor (as defined in the Thirteenth Supplemental Indenture) shall terminate and be of no further force or effect and such New Guarantor shall be automatically released from all obligations under the Indenture, the Securities and such guarantee upon receipt by the Trustee of an Officers’ Certificate certifying that such New Guarantor ceases to guarantee obligations (whether by repayment or otherwise) under the Credit Agreement or any replacement thereof;
WHEREAS, Article Three, clause (d) of the Fourteenth Supplemental Indenture provides that a guarantee by any Additional Guarantor (as defined in the Fourteenth Supplemental Indenture) shall terminate and be of no further force or effect and such Additional Guarantor shall be automatically released from all obligations under the Indenture, the Securities and such guarantee upon receipt by the Trustee of an Officers’ Certificate certifying that such Additional Guarantor ceases to guarantee to guarantee Indebtedness for Borrowed Money (whether by repayment or otherwise) under the Credit Agreement or any replacement thereof;
WHEREAS, Article Three, clause (d) of the Seventeenth Supplemental Indenture provides that a guarantee by any Other Guarantor (as defined in the Seventeenth Supplemental Indenture) shall terminate and be of no further force or effect and such Other Guarantor shall be automatically released from all obligations under the Indenture, the Securities and such guarantee upon receipt by the Trustee of an Officers’ Certificate certifying that such Other Guarantor ceases to guarantee Indebtedness for Borrowed Money (whether by repayment or otherwise) under the Credit Agreement or any replacement thereof;
WHEREAS, each of the guarantors named on Schedule III hereto (collectively, the “Released Guarantors”) has ceased to be a guarantor under the Credit Agreement in a manner not in violation of the Indenture;
WHEREAS, Section 901(10) of the Indenture provides that the Trustee may enter into one or more indentures supplemental for the purposes of supplementing the Indenture which may be inconsistent with any other provision of the Indenture provided that such action shall not adversely affect the interest of the Holders (as defined in the Indenture) of Securities of any series in any material respect;
WHEREAS, Article Two of the Thirteenth Supplemental Indenture provides that the Trustee agrees to execute a supplemental indenture to evidence the release of any New Guarantor thereunder;
WHEREAS, Article Three of the Fourteenth Supplemental Indenture provides that the Trustee agrees to execute a supplemental indenture to evidence the release of any Additional Guarantor thereunder;
WHEREAS, Article Three of the Seventeenth Supplemental Indenture provides that the Trustee agrees to execute a supplemental indenture to evidence the release of any Other Guarantor thereunder;
WHEREAS, TWCE and the New Guarantors have duly authorized the execution and delivery of this Twentieth Supplemental Indenture to provide for the addition of the New Guarantors and the release of Released Guarantors;
WHEREAS, this Twentieth Supplemental Indenture is being executed pursuant to and in accordance with Article Two of the Thirteenth Supplemental Indenture, Article Three of the Fourteenth Supplemental Indenture, Article Three of the Seventeenth Supplemental Indenture and Section 901 of the Indenture; and
WHEREAS, all things necessary to make this Twentieth Supplemental Indenture a valid and binding agreement of TWCE and the New Guarantors in accordance with its terms have been done.
2
NOW, THEREFORE, WITNESSETH:
For and in consideration of the premises and other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, it is mutually agreed, for the equal and proportionate benefit of all Holders of the Securities, as follows:
Article One
INCORPORATION OF PREVIOUS DOCUMENTS
Section 1.01 Incorporation of Previous Documents.
This Twentieth Supplemental Indenture is a supplemental indenture within the meaning of the Indenture and shall be read together therewith, and shall have the same effect as though all the provisions thereof and hereof were contained in one instrument. Unless otherwise expressly provided, the provisions of the Indenture are incorporated herein by reference.
Section 1.02 Definitions.
Unless otherwise provided herein and specified in Article Two or Article Three below, the terms used herein shall have the meanings ascribed to such terms in the Indenture.
Section 1.03 Governing Law.
This Twentieth Supplemental Indenture, the Indenture and the Securities shall be governed by and construed in accordance with the laws of the State of New York.
Section 1.04 Trustee.
The Trustee makes no representation as to the validity or sufficiency of this Twentieth Supplemental Indenture, except as to the satisfaction of the Trustee with the form hereof. The recitals and statements herein are deemed to be those of the parties hereto other than the Trustee.
Section 1.05 Counterparts.
This instrument may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.
Section 1.06 Interpretation.
This document shall not be used and is not intended to be used to interpret any other document or agreement other than the Indenture.
Article Two
RELEASE OF GUARANTEE
The Trustee hereby acknowledges, without recourse, representation or warranty, that the guarantee of each of the Released Guarantors has been terminated as of the date hereof and shall be of no further force or effect and each of the Released Guarantors has been released from all obligations under the Indenture, the Securities and such guarantee.
3
Article Three
AGREEMENT TO GUARANTEE
By execution of this Twentieth Supplemental Indenture, each of the New Guarantors will fully, irrevocably and unconditionally guarantee, to each Holder of Securities and to the Trustee and its successors and assigns (i) the full and punctual payment of principal of and interest on the Securities when due, whether at maturity, by acceleration, by redemption or otherwise, and all other monetary obligations of the Obligors under the Indenture (including obligations to the Trustee) and the Securities and (ii) the full and punctual performance within applicable grace periods of all other obligations of the Obligors under the Indenture and the Securities; provided that such guarantee shall terminate and be of no further force or effect and such New Guarantor shall be automatically released from all obligations hereunder and under the Indenture, any Securities and this guarantee if at least one of the following conditions has been met:
(a) upon the occurrence of a Collateral Release Event;
(b) at such time as such New Guarantor is either (in all cases whether by repayment or otherwise): (A) not an issuer or guarantor of any item of Indebtedness for Borrowed Money and any other Equally and Ratably Secured Indebtedness and ceases (or substantially concurrently will cease) to be the guarantor of any Equally and Ratably Secured Indebtedness (or such New Guarantor’s obligations with respect to all Equally and Ratably Secured Indebtedness shall cease to exist substantially concurrently with such release of its guarantee); or (B) released or relieved as an issuer or guarantor of its obligations of an item of Indebtedness for Borrowed Money and not an issuer or guarantor of any other Equally and Ratably Secured Indebtedness and ceases (or substantially concurrently will cease) to be the guarantor of any Equally and Ratably Secured Indebtedness (or such New Guarantor’s obligations with respect to all Equally and Ratably Secured Indebtedness shall cease to exist substantially concurrently with such release of its guarantee);
(c) upon the sale, disposition, exchange or other transfer (including through merger, consolidation, amalgamation or otherwise) of (i) all or substantially all the assets of or (ii) any Equity Interests of the capital stock (including any sale, disposition or other transfer following which the applicable New Guarantor is no longer a Subsidiary), of such New Guarantor if such sale, disposition, exchange or other transfer is made in a manner not in violation of this Indenture;
(d) at such time such New Guarantor ceases to guarantee obligations (whether by repayment or otherwise) under the Credit Agreement or any replacement thereof; and
(e) upon the exercise of any legal defeasance option or covenant defeasance option under this Indenture or if any obligations relating to the Securities are discharged or defeased in accordance with the terms of this Indenture.
Unless otherwise defined herein, capitalized terms used in this Article Three shall have the meanings ascribed to them in that certain Indenture, dated as of July 23, 2015, as amended, supplemented and modified from time to time, by and among Charter Communications Operating, LLC, Charter Communications Operating Capital Corp. and CCO Safari II, LLC, as issuers, and The Bank of New York Mellon Trust Company, N.A., as trustee and collateral agent, mutatis mutandis.
The Trustee agrees to execute a supplemental indenture to evidence the release of any New Guarantor hereunder and any obligations under the Indenture upon the request of TWCE in compliance with Section 102 of the Indenture; provided that the release shall be effective whether or not such supplemental indenture is executed.
For the avoidance of doubt, none of the New Guarantors are Guarantors under the Indenture. The guarantee of the New Guarantors is granted solely pursuant to and in accordance with the terms set forth in this Article Three.
The Company hereby certifies to the Trustee that the issuer and guarantors of the Securities after giving effect to this Twentieth Supplemental Indenture are set forth on Schedule IV hereto.
[Signature page follows]
4
IN WITNESS WHEREOF, the parties hereto have caused this Twentieth Supplemental Indenture to be duly executed by their respective officers or agents as of the day and year first above written.
| TIME WARNER CABLE ENTERPRISES LLC | |||
| By: | /s/ Jeffrey B. Murphy | ||
| Name: | Jeffrey B. Murphy | ||
| Title: | Senior Vice President, Corporate Finance and Development | ||
| THE GUARANTORS NAMED ON SCHEDULE I HERETO | |||
| By: | /s/ Jeffrey B. Murphy | ||
| Name: | Jeffrey B. Murphy | ||
| Title: | Authorized Signatory | ||
| THE GUARANTORS NAMED ON SCHEDULE II HERETO | |||
| By: | /s/ Jeffrey B. Murphy | ||
| Name: | Jeffrey B. Murphy | ||
| Title: | Senior Vice President, Corporate Finance and Development | ||
[Signature Page to Twentieth Supplemental Indenture]
| THE BANK OF NEW YORK MELLON, | |||
| as Trustee | |||
| By: | /s/ Terence Rawlins | ||
| Name: | Terence Rawlins | ||
| Title: | Vice President | ||
[Signature Page to Twentieth Supplemental Indenture]
Schedule I
Cox Guarantors
BPRF Holdings, LLC, a Delaware limited liability company
CB Commercial Devices, LLC, a Delaware limited liability company
CCI Corporate Services, LLC, a Delaware limited liability company
CCI Devices, LLC, a Delaware limited liability company
Cox Advanced Services Arizona, LLC, a Delaware limited liability company
Cox Advanced Services Arkansas, LLC, a Delaware limited liability company
Cox Advanced Services California, LLC, a Delaware limited liability company
Cox Advanced Services Connecticut, LLC, a Delaware limited liability company
Cox Advanced Services Florida, LLC, a Delaware limited liability company
Cox Advanced Services Georgia, LLC, a Delaware limited liability company
Cox Advanced Services Idaho, LLC, a Delaware limited liability company
Cox Advanced Services Iowa, LLC, a Delaware limited liability company
Cox Advanced Services Kansas, LLC, a Delaware limited liability company
Cox Advanced Services Louisiana, LLC, a Delaware limited liability company
Cox Advanced Services Nebraska, LLC, a Delaware limited liability company
Cox Advanced Services Nevada, LLC, a Delaware limited liability company
Cox Advanced Services North Carolina, LLC, a Delaware limited liability company
Cox Advanced Services Ohio, LLC, a Delaware limited liability company
Cox Advanced Services Oklahoma, LLC, a Delaware limited liability company
Cox Advanced Services Rhode Island, LLC, a Delaware limited liability company
Cox Advanced Services Virginia, LLC, a Delaware limited liability company
Cox Arizona Telcom, L.L.C., a Delaware limited liability company
Cox Arkansas Telcom, L.L.C., a Delaware limited liability company
Cox California Telcom, L.L.C., a Delaware limited liability company
Cox Colorado Telcom, L.L.C., a Delaware limited liability company
Cox Communications Arizona, LLC, a Delaware limited liability company
Cox Communications California, LLC, a Delaware limited liability company
Cox Communications EBD Holdings, LLC, a Delaware limited liability company
Cox Communications Georgia, LLC, a Delaware limited liability company
Cox Communications Gulf Coast, LLC, a Delaware limited liability company
Cox Communications Hampton Roads, L.L.C., a Delaware limited liability company
Cox Communications Kansas, L.L.C., a Delaware limited liability company
Cox Communications Las Vegas, LLC, a Delaware limited liability company
Cox Communications Louisiana, L.L.C., a Delaware limited liability company
Cox Communications Missouri, LLC, a Delaware limited liability company
Cox Communications NCC, LLC, a Delaware limited liability company
Cox Communications Omaha, L.L.C., a Delaware limited liability company
Cox Communications Tower, LLC, a Delaware limited liability company
Cox Communications, LLC, a Delaware limited liability company
Cox Connecticut Telcom, L.L.C., a Delaware limited liability company
Cox Florida Telcom, L.P., a Delaware limited partnership
Cox HMS, LLC, a Delaware limited liability company
Cox Horizon Growth, LLC, a Delaware limited liability company
Cox Idaho Telcom, L.L.C., a Delaware limited liability company
Cox Iowa Telcom, L.L.C., a Delaware limited liability company
Cox Kansas Telcom, L.L.C., a Delaware limited liability company
Cox LAHC, LLC, a Delaware limited liability company
Cox Media, L.L.C., a Delaware limited liability company
Cox Missouri Telcom, LLC, a Delaware limited liability company
Cox Nebraska Telcom, L.L.C., a Delaware limited liability company
Cox Nevada Telcom, L.L.C., a Delaware limited liability company
Cox North Carolina Telcom, L.L.C., a Delaware limited liability company
Cox Ohio Telcom, L.L.C., a Delaware limited liability company
Cox Oklahoma Telcom, L.L.C., a Delaware limited liability company
Cox Rhode Island Telcom, L.L.C., a Delaware limited liability company
Cox TMI, LLC, a Delaware limited liability company
Cox Virginia Telcom, L.L.C., a Virginia limited liability company
COX WIRELESS ACCESS, LLC, a Delaware limited liability company
COX/CHARTER MASTER CABLE ADVERTISING, LLC, a Delaware limited liability company
CoxCom, LLC, a Delaware limited liability company
Fiber Platform Blocker, LLC, a Delaware limited liability company
FIBER PLATFORM HOLDINGS, LLC, a Delaware limited liability company
FIBER PLATFORM, LLC, a Delaware limited liability company
Hospitality Network Louisiana, L.L.C., a Delaware limited liability company
Hospitality Network Pennsylvania, LLC, a Delaware limited liability company
Hospitality Network, L.L.C., a Delaware limited liability company
Logicworks Systems, LLC, a Delaware limited liability company
RapidScale, LLC, a California limited liability company
TMI Partner Holdings, LLC, a Delaware limited liability company
Unite Private Networks-Illinois, L.L.C. a Delaware limited liability company
UPN Intermediate Holdings LLC, a Delaware limited liability company
Schedule II
Charter Guarantors
Charter Communications ASC, LLC
Charter Communications SSC, LLC
Schedule III
Released Guarantors
Time Warner Cable Information Services (Colorado), LLC
Time Warner Cable Information Services (Hawaii), LLC
Time Warner Cable Information Services (Idaho), LLC
Time Warner Cable Information Services (Illinois), LLC
Time Warner Cable Information Services (Indiana), LLC
Time Warner Cable Information Services (Kansas), LLC
Time Warner Cable Information Services (Kentucky), LLC
Time Warner Cable Information Services (Maine), LLC
Time Warner Cable Information Services (Massachusetts), LLC
Time Warner Cable Information Services (Michigan), LLC
Time Warner Cable Information Services (Missouri), LLC
Time Warner Cable Information Services (Nebraska), LLC
Time Warner Cable Information Services (New Hampshire), LLC
Time Warner Cable Information Services (New Jersey), LLC
Time Warner Cable Information Services (New Mexico) LLC
Time Warner Cable Information Services (New York), LLC
Time Warner Cable Information Services (North Carolina), LLC
Time Warner Cable Information Services (Ohio), LLC
Time Warner Cable Information Services (Pennsylvania), LLC
Time Warner Cable Information Services (South Carolina), LLC
Time Warner Cable Information Services (Tennessee), LLC
Time Warner Cable Information Services (Texas), LLC
Time Warner Cable Information Services (Virginia), LLC
Time Warner Cable Information Services (Washington), LLC
Time Warner Cable Information Services (West Virginia), LLC
Time Warner Cable Information Services (Wisconsin), LLC
TWC Media Blocker LLC
TWC Security LLC
TWC Wireless LLC
BHN Home Security Services, LLC
American Cable Entertainment Company, LLC
Bresnan Microwave of Montana, LLC
CC Systems, LLC
CCO Transfers, LLC
Charter Advanced Services (MN), LLC
Charter Advanced Services (MO), LLC
Charter Advanced Services VIII (MN), LLC
Charter Communications Entertainment I, LLC
Charter Communications Entertainment II, LLC
Charter Communications Operating Capital Corp.
Charter Communications Operating, LLC
Charter Communications VII, LLC
Charter Fiberlink - Alabama, LLC
Charter Fiberlink – Illinois, LLC
Charter Helicon, LLC
Falcon Cable Communications, LLC
Helicon Partners I, L.P.
Long Beach, LLC
Phone Transfers (AL), LLC
Phone Transfers (CA), LLC
Phone Transfers (GA), LLC
Phone Transfers (NC), LLC
Phone Transfers (TN), LLC
Phone Transfers (VA), LLC
The Helicon Group, L.P.
VOIP Transfers (AL), LLC
VOIP Transfers (CA) LLC
VOIP Transfers (GA), LLC
VOIP Transfers (NC), LLC
VOIP Transfers (TN), LLC
VOIP Transfers (VA), LLC
TC Technology LLC
TWC/Charter Los Angeles Cable Advertising, LLC
Schedule IV
Securities Guarantors
BPRF Holdings, LLC, a Delaware limited liability company
Bresnan Broadband Holdings, LLC
CB Commercial Devices, LLC, a Delaware limited liability company
CCI Corporate Services, LLC, a Delaware limited liability company
CCI Devices, LLC, a Delaware limited liability company
CCO Holdings, LLC
CCO NR Holdings, LLC
Charter Communications ASC, LLC
Charter Communications SSC, LLC
Charter Communications VI HoldCo, LLC
Charter Communications VI, L.L.C.
Charter Communications, LLC
Charter Distribution, LLC
Charter Leasing Holding Company, LLC
Charter Procurement Leasing, LLC
Cox Advanced Services Arizona, LLC, a Delaware limited liability company
Cox Advanced Services Arkansas, LLC, a Delaware limited liability company
Cox Advanced Services California, LLC, a Delaware limited liability company
Cox Advanced Services Connecticut, LLC, a Delaware limited liability company
Cox Advanced Services Florida, LLC, a Delaware limited liability company
Cox Advanced Services Georgia, LLC, a Delaware limited liability company
Cox Advanced Services Idaho, LLC, a Delaware limited liability company
Cox Advanced Services Iowa, LLC, a Delaware limited liability company
Cox Advanced Services Kansas, LLC, a Delaware limited liability company
Cox Advanced Services Louisiana, LLC, a Delaware limited liability company
Cox Advanced Services Nebraska, LLC, a Delaware limited liability company
Cox Advanced Services Nevada, LLC, a Delaware limited liability company
Cox Advanced Services North Carolina, LLC, a Delaware limited liability company
Cox Advanced Services Ohio, LLC, a Delaware limited liability company
Cox Advanced Services Oklahoma, LLC, a Delaware limited liability company
Cox Advanced Services Rhode Island, LLC, a Delaware limited liability company
Cox Advanced Services Virginia, LLC, a Delaware limited liability company
Cox Arizona Telcom, L.L.C., a Delaware limited liability company
Cox Arkansas Telcom, L.L.C., a Delaware limited liability company
Cox California Telcom, L.L.C., a Delaware limited liability company
Cox Colorado Telcom, L.L.C., a Delaware limited liability company
Cox Communications Arizona, LLC, a Delaware limited liability company
Cox Communications California, LLC, a Delaware limited liability company
Cox Communications EBD Holdings, LLC, a Delaware limited liability company
Cox Communications Georgia, LLC, a Delaware limited liability company
Cox Communications Gulf Coast, LLC, a Delaware limited liability company
Cox Communications Hampton Roads, L.L.C., a Delaware limited liability company
Cox Communications Kansas, L.L.C., a Delaware limited liability company
Cox Communications Las Vegas, LLC, a Delaware limited liability company
Cox Communications Louisiana, L.L.C., a Delaware limited liability company
Cox Communications Missouri, LLC, a Delaware limited liability company
Cox Communications NCC, LLC, a Delaware limited liability company
Cox Communications Omaha, L.L.C., a Delaware limited liability company
Cox Communications Tower, LLC, a Delaware limited liability company
Cox Communications, LLC, a Delaware limited liability company
Cox Connecticut Telcom, L.L.C., a Delaware limited liability company
Cox Florida Telcom, L.P., a Delaware limited partnership
Cox HMS, LLC, a Delaware limited liability company
Cox Horizon Growth, LLC, a Delaware limited liability company
Cox Idaho Telcom, L.L.C., a Delaware limited liability company
Cox Iowa Telcom, L.L.C., a Delaware limited liability company
Cox Kansas Telcom, L.L.C., a Delaware limited liability company
Cox LAHC, LLC, a Delaware limited liability company
Cox Media, L.L.C., a Delaware limited liability company
Cox Missouri Telcom, LLC, a Delaware limited liability company
Cox Nebraska Telcom, L.L.C., a Delaware limited liability company
Cox Nevada Telcom, L.L.C., a Delaware limited liability company
Cox North Carolina Telcom, L.L.C., a Delaware limited liability company
Cox Ohio Telcom, L.L.C., a Delaware limited liability company
Cox Oklahoma Telcom, L.L.C., a Delaware limited liability company
Cox Rhode Island Telcom, L.L.C., a Delaware limited liability company
Cox TMI, LLC, a Delaware limited liability company
Cox Virginia Telcom, L.L.C., a Virginia limited liability company
COX WIRELESS ACCESS, LLC, a Delaware limited liability company
COX/CHARTER MASTER CABLE ADVERTISING, LLC, a Delaware limited liability company
CoxCom, LLC, a Delaware limited liability company
DukeNet Communications, LLC
Fiber Platform Blocker, LLC, a Delaware limited liability company
FIBER PLATFORM HOLDINGS, LLC, a Delaware limited liability company
FIBER PLATFORM, LLC, a Delaware limited liability company
Hospitality Network Louisiana, L.L.C., a Delaware limited liability company
Hospitality Network Pennsylvania, LLC, a Delaware limited liability company
Hospitality Network, L.L.C., a Delaware limited liability company
Logicworks Systems, LLC, a Delaware limited liability company
RapidScale, LLC, a California limited liability company
Spectrum Advanced Services, LLC
Spectrum Gulf Coast, LLC
Spectrum Mid-America, LLC
Spectrum Mobile Equipment, LLC
Spectrum Mobile, LLC
Spectrum New York Metro, LLC
Spectrum NLP, LLC
Spectrum Northeast, LLC
Spectrum Oceanic, LLC
Spectrum Originals Development, LLC
Spectrum Originals, LLC
Spectrum Pacific West, LLC
Spectrum Reach, LLC
Spectrum RSN, LLC
Spectrum Southeast, LLC
Spectrum Sunshine State, LLC
Spectrum TV Essentials, LLC
Spectrum Wireless Holdings, LLC
Time Warner Cable Enterprises LLC
Time Warner Cable, LLC
TMI Partner Holdings, LLC, a Delaware limited liability company
TWC Administration LLC
TWC Communications, LLC
TWC SEE Holdco LLC
Unite Private Networks-Illinois, L.L.C. a Delaware limited liability company
UPN Intermediate Holdings LLC, a Delaware limited liability company
Exhibit 4.5
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Exhibit 4.6
| OFFICERS' CERTIFICATE OF COX COMMUNICATIONS, INC. Pursuant to Sections 2.03 and 2,05 of the Indenture Pursuant to Sections 2.03 and 2.05 of the Indenture, dated as of June 27, 1995, between Cox Communications, Inc. (the "Company") and The Bank of New York, as trustee (the "Trustee"), relating to w'mal $200,000,000 in aggregate principal amount of the Company's 6.40% Notes Due 2008 (the "Notes") and $200,000,000 in aggregate principal amount of the Company's 6.80% Debentures Due 2028 (the "Debentures"), we, James 0. Robbins and Jimmy W. Hayes, as the Chief Executive Officer and Senior Vice President, Finance, respectively, of the Company, on behalf of the Company, certify as follows: änk 1. We incorporated the terms of the Notes and the Debentures, specimen certificates of which are attached hereto as Exhibit A and Exhibit B, respectively, by reference in this Officers' Certificate. 2. We have read the provisions of the Indenture (including Sections 2.03 and 2.05) and have reviewed all conditions precedent to the authentication and delivery of the Notes and the Debentures as set forth in the Indenture, the terms of which are incorporated by reference in this Officers Certificate. AIL 3. We have reviewed the resolutions of the Company, including the resolutions of the Board of Directors of the Company and the Pricing Committee of the Board of Directors of the Company authorizing such actions (which are attached hereto as Exhibit C and Exhibit D, respectively), and certain other documents, and have made such independent investigation as we deemed necessary to enable us to express an informed opinion as to whether or not such conditions precedent have been complied with. |
| 4. In our opinion, all such conditions precedent have been complied with. Dated as of July 27, 1958. COX IONS, INC. by mes 0. Robbins Let Executive officer 'W44 J1 1.1/44Si W. Haye Se or Vice President, aisc\ ce •Th CP v Nt\ v sbe # |
Exhibit 4.7
EXECUTION COPY
COX COMMUNICATIONS, INC.
THE BANK OF NEW YORK TRUST COMPANY, N.A.,
as Trustee
EIGHTH SUPPLEMENTAL INDENTURE
Dated as of December 1, 2006
Supplement to Indenture
Dated as of June 27, 1995
Creating two series of Debt Securities designated
5.875% Notes due 2016
6.450% Notes due 2036
EIGHTH SUPPLEMENTAL INDENTURE, dated as of the 1st day of December, 2006 between COX COMMUNICATIONS, INC., a corporation existing under the laws of the State of Delaware, having its principal executive office located at 1400 Lake Heam Drive, NE, Atlanta, Georgia 30319 (the “Company’’), and THE BANK OF NEW YORK TRUST COMPANY, N.A., a national banking association, having a designated office located at l00 Ashford Center North, Suite 520, Atlanta, Georgia 30338, as trustee (the “Trustee”);
WHEREAS, the Company has heretofore executed and delivered to the Trustee an Indenture, dated as of June 27, 1995 (the “Original Indenture” and, as amended by this Supplemental Indenture, the “Indenture”), providing for the issuance by the Company from time to time of its debentures, notes, bonds or other evidences of indebtedness (in the Original Indenture and herein called the “Debt Securities”), unlimited as to principal amount, to be issued in one or more series;
WHEREAS, the Company, in the exercise of the power and authority conferred upon and reserved to it under the provisions of the Original Indenture and pursuant to appropriate resolutions of the Board of Directors, has duly determined to make, execute and deliver to the Trustee this Supplemental Indenture to the Original Indenture in order to establish the form and terms of, and to provide for the creation and issuance of, two new series of Debt Securities designated as the “5.875% Notes due 2016” in the initial aggregate principal amount of $600,000,000 (the “2016 Notes”) and the “6.450% Notes due 2036” in the initial aggregate principal amount of $400,000,000 (the “2036 Notes” and, together with the 2016 Notes, the “Notes”);
WHEREAS, Section 9.01 of the Original Indenture provides, among other things, that the Company and the Trustee, at any time and from time to time, without the consent of any Holders, may enter into an indenture supplemental to the Original Indenture to establish the form or terms of Debt Securities of any series as permitted by Sections 2.01 and 2.03 of the Original Indenture;
WHEREAS, all things necessary to make the Notes, when executed by the Company and authenticated and delivered by the Trustee and issued upon the terms and subject to the conditions hereinafter and in the Original Indenture set forth against payment therefor, the valid, binding and legal obligations of the Company and to make this Supplemental Indenture a valid, binding and legal agreement of the Company, have been done;
NOW, THEREFORE, THIS EIGHTH SUPPLEMENTAL INDENTURE WITNESSETH that, in order to establish the form and terms of the series of Debt Securities designated as the “5.875% Notes due 2016” and the “6.450% Notes due 2036” and for and in consideration of the premises and of the covenants contained in the Original Indenture and in this Supplemental Indenture and for other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of the Notes, as follows:
ARTICLE l
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101 Definitions. For all purposes of the Original Indenture and this Supplemental Indenture relating to two series of Debt Securities (consisting of the Notes) created hereby, except as otherwise expressly provided or unless the context otherwise requires, the terms defined in this Article have the meanings assigned to them in this Article. Each capitalized term that is used in the Original Indenture and this Supplemental Indenture but not defined herein shall have the meaning specified in the Original Indenture.
“Agent Members” has the meaning specified in Section 209(e)(v).
“Applicable Procedures” means, with respect to any transfer or transaction involving a Global Note or beneficial interest therein, the rules and procedures of the Depositary for such Note, in each case to the extent applicable to such transaction and as in effect from time to time.
“Business Day’’ means any day other than a Saturday, a Sunday or a legal holiday or a day on which banking institutions or trust companies in The City of New York are authorized or obligated by law to close.
“cash” means U.S. legal tender.
“Certificated Notes” means a note required to bear the Legend set forth on the forms of the Notes attached as Exhibits A-1 and A-2 to this Supplemental Indenture.
“Clearstream” means Clearstream Banking, société anonyme (formerly Cedelbank).
“Comparable Treasury Issue” means, with respect to the Notes subject to redemption, the United States Treasury security or securities (in the case of a redemption of both the 2016 Notes and the 2036 Notes) selected by the Quotation Agent as having an actual or interpolated maturity or maturities, as the case may be, comparable to the remaining life of the Notes to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity with the remaining life of the Notes to be redeemed.
“Comparable Treasury Price” means, with respect to any Redemption Date for the Notes, the average of the Reference Treasury Dealer Quotations for each series or partial series of the Notes subject to redemption on such Redemption Date, after excluding the highest and lowest of such Reference Treasury Dealer Quotations for each series of the Notes subject to redemption, or, if the Trustee obtains fewer than four such Reference Treasury Dealer Quotations for each series of the Notes subject to redemption, the average of all such quotations.
“Debt Securities” has the meaning specified in the first recital hereof.
2
“Depositary” means, with respect to the Notes issuable in whole or in part in global form, DTC and any nominee thereof, until a successor shall have been appointed and become such pursuant to the applicable provisions of the Indenture, and thereafter “Depositary” shall mean or include such successor and any nominee thereof.
“DTC” means The Depository Trust Company.
“Euroclear” means the Euroclear System.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Global Note” means a Note issued in global form and deposited with or on behalf of the Depositary.
“Holder” and “Noteholder,” in the case of any Note, means the Person in whose name such Note is registered in the Debt Security Register.
“Institutional Accredited Investor” means an institutional “accredited investor” as defined in Rule 50l(a)(l), (2), (3) and (7) under the Securities Act.
“Interest Payment Date,” in respect of any Note, has the meaning assigned to it in such Note.
“Issue Date” means December 1, 2006.
“Issue Price” of any Note means, in connection with the original issuance of such Note, the initial issue price as set forth on the face of the Note.
“Legend” has the meaning specified in Section 207(c).
“Notes” has the meaning specified in the recitals hereof.
“Purchase Agreement” means the Purchase Agreement dated November 28, 2006, among the Company and Barclays Capital Inc., Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated and Wachovia Capital Markets, LLC, acting as representatives on behalf of the Initial Purchasers (as defined therein).
“Qualified Institutional Buyer” has the meaning specified in Rule 144A.
“Quotation Agent” means a Reference Treasury Dealer appointed by the Company.
“Redemption Date,” with respect to any 2016 Note or 2036 Note or portion thereof to be redeemed, means the date fixed for redemption in accordance with the terms of such Notes and Article III of the Original Indenture. If the Redemption Date is not an Interest Payment Date, the amount of the scheduled interest payment on the next succeeding Interest Payment Date will be reduced by the amount of interest accrued to the Redemption Date.
3
“Redemption Price,” with respect to any 2016 Note or 2036 Note or portion thereof to be redeemed, means the greater of:
(a) 100% of the principal amount of the 2016 Notes or 2036 Notes or portion thereof, as applicable, to be redeemed; or
(b) the sum, as determined by the Quotation Agent, of the present values of the principal amount and the remaining scheduled payments of interest on such 2016 Notes or 2036 Notes, as applicable (and, for avoidance of doubt, calculated separately for each series of Notes subject to redemption) to be redeemed (exclusive of interest accrued to the Redemption Date), in each case, discounted from their respective scheduled payment dates to the Redemption Date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 25 basis points in the case of the 2016 Notes and 30 basis points in the case of the 2036 Notes,
plus, in either case, accrued and unpaid interest thereon to the Redemption Date.
“Reference Treasury Dealer” means, with respect to the Notes subject to redemption, Barclays Capital Inc. and Merrill Lynch, Pierce, Fenner & Smith Incorporated and their respective successors, and at least one other primary United States Government securities dealer in New York City selected by Wachovia Capital Markets, LLC and two other primary United States Government securities dealers selected by the Company.
“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and any Redemption Date, the average, as determined by the Trustee, of the bid and asked prices for the Comparable Treasury Issue, expressed in each case as a percentage of its principal amount, quoted in writing to the Trustee by such Reference Treasury Dealer at 3:30 p.m., New York City time, on the third Business Day preceding such Redemption Date.
“Regulation S” means Regulation S under the Securities Act.
“Regulation S Global Note” means a Global Note in the form of the Notes attached hereto as Exhibits A-1 and A-2, and that is deposited with and registered in the name of the Depositary, representing Notes sold in offshore transactions in reliance on Regulation S.
“Resale Restriction Termination Date” means the date that is two years after the later of (i) the Issue Date and (ii) the last date on which the Company or any Affiliate of the Company was the owner of the applicable aggregate principal amount of any series of Notes or any beneficial interest in such Notes.
“Restricted Note” means a Note required to bear the restrictive Legends set forth on the forms of Note attached as Exhibits A-1 and A-2 to this Supplemental Indenture.
“Rule 144A” means Rule 144A under the Securities Act (or any successor provision), as it may be amended from time to time.
“SEC” means the U.S. Securities and Exchange Commission.
4
“Securities Act” means the Securities Act of 1933, as amended.
“Supplemental Indenture” means this Eighth Supplemental Indenture.
“Treasury Rate” has the meaning assigned to it in the Notes.
“Trustee” has the meaning specified in the first paragraph hereof.
“US Global Note” means a Global Note in the form of the Notes attached hereto as Exhibits A-1 and A-2, and that is deposited with and registered in the name of the Depositary, representing Notes sold in reliance on Rule 144A.
SECTION 102 Section References. Each reference to a particular section set forth in this Supplemental Indenture shall, unless the context otherwise requires, refer to this Supplemental Indenture.
ARTICLE 2
THE NOTES
SECTION 201 Title of the Notes. The Notes shall be known and designated as the “5.875% Notes due 2016” and the “6.450% Notes due 2036” of the Company, respectively.
SECTION 202 Amount. The aggregate principal amount of Notes that may be authenticated and delivered under this Supplemental Indenture is initially limited to $600,000,000 for the 2016 Notes and $400,000,000 for the 2036 Notes, except for Notes authenticated and delivered upon registration of transfer of, or exchange for, or in lieu of, other Notes pursuant to Section 2.07, 2.08, 2.09 or 9.04 of the Indenture, or upon repayment in part of any 2016 Note or 2036 Note pursuant to Article III of the Original Indenture. The Company shall have the ability to reopen any series of the Notes and issue additional Notes of such series or establish different terms of such series.
SECTION 203 Stated Maturity. The Stated Maturity of the 2016 Notes shall be December 1, 2016. The Stated Maturity of the 2036 Notes shall be December 1, 2036.
SECTION 204 Interest.
(a) The 2016 Notes shall bear interest at the rate of 5.875% from December 1, 2006 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, payable semiannually on June 1 and December 1 of each year, beginning on June 1, 2007, to the Persons in whose names such Notes are registered at the close of business on the immediately preceding May 15 or November 15, as the case may be, whether or not a Business Day. Interest on the 2016 Notes will be computed on the basis of a 360-day year of twelve 30-day months.
(b) The 2036 Notes shall bear cash interest at the rate of 6.450% from December 1, 2006 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, payable semiannually on June 1 and December 1 of each year, beginning on June 1, 2007, to the Persons in whose names such Notes are registered at the close of business on the immediately preceding May 15 or November 15, as the case may be, whether or not a Business Day. Interest on the 2036 Notes will be computed on the basis of a 360-day year of twelve 30-day months.
5
SECTION 205 Payments.
(a) Payments of principal, premium, if any, and interest on the Notes will be made to the Depositary, or its nominee, as the case may be, as the registered owner and holder of the Global Notes representing the Notes. In the event that the Notes are issued in the form of Certificated Notes, payments of principal, premium, if any, and interest thereon will be at the office of the Trustee in The City of New York designated for such purpose, provided that payment of interest, other than interest payable at Stated Maturity or upon redemption, may be made at the option of the Company by check mailed by the Trustee to the address of the Person entitled as shown on the Debt Securities Registrar.
(b) If any Stated Maturity date, Redemption Date or Interest Payment Date, falls on a day that is not a Business Day, the required payment shall be made on the next Business Day, and no interest shall accrue on the amount so payable for the period of such payment date and the next Business Day.
(c) Payments of principal, premium, if any, and interest on the Notes shall be made in cash or such other coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debt.
SECTION 206 Redemption. Both series of the Notes shall be redeemable, in whole or in part, on one or more Redemption Dates at the applicable Redemption Price.
SECTION 207 Forms; Denominations. The Notes shall be Registered Securities. The Global Notes representing the Notes shall be in substantially the forms attached hereto as Exhibits A-1 and A-2.
The Notes are being offered and sold by the Company pursuant to the Purchase Agreement.
(a) Global Notes. (i) Notes offered and sold in reliance on Rule 144A as provided in the Purchase Agreement shall be issued initially in the form of one or more US Global Notes in definitive fully registered form without interest coupons, deposited on behalf of the subscribers for the Notes represented thereby with the Trustee, as custodian for the Depositary and registered in the name of DTC or a nominee thereof, duly executed by the Company and authenticated by the Trustee as provided in the Indenture. The aggregate principal amount of the US Global Notes may from time to time be increased or decreased by adjustments made on the records of the Trustee and the Depositary as hereinafter provided.
Notes offered and sold in offshore transactions in reliance on Regulation S as provided in the Purchase Agreement shall be issued initially in the form of one or more Regulation S Global Notes in definitive fully registered form without interest coupons, deposited on behalf of the subscribers for the Notes represented thereby with the Trustee, as custodian for the Depositary, for the accounts of Euroclear and Clearstream and registered in the name of DTC or a nominee thereof, duly executed by the Company and authenticated by the Trustee as hereinafter provided. The aggregate principal amount of the Regulation S Global Notes may from time to time be increased or decreased by adjustments made on the records of the Trustee and the Depositary as hereinafter provided.
6
Each Global Note shall represent such of the Outstanding Notes as shall be specified therein and each shall provide that it shall represent the aggregate principal amount of Outstanding Notes from time to time endorsed thereon and the aggregate principal amount of Outstanding Notes represented thereby may from time to time be reduced to reflect exchanges or redemptions. Any adjustment of the aggregate principal amount of a Global Note representing the Notes to reflect the amount of any decrease in the principal amount of Outstanding Notes represented thereby shall be made by the Trustee in accordance with instructions given by the Holder thereof as required by Section 209 hereof and shall be made on the records of the Trustee and the Depositary.
(ii) Book-Entry Provisions. This Section 207(a)(ii) shall apply only to Global Notes.
The Company shall execute and the Trustee shall, in accordance with this Section 207(a)(ii) and Section 2.02 of the Indenture, authenticate and deliver initially one or more Global Notes that (a) shall be registered in the name of the Depositary, (b) shall be delivered by the Trustee to the Depositary or pursuant to the Depositary’s instructions and (c) shall bear legends substantially to the following effect:
“UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON 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.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS, IN WHOLE BUT NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN ARTICLE TWO OF THE EIGHTH SUPPLEMENTAL INDENTURE REFERRED TO ON THE REVERSE HEREOF.”
7
(b) Certificated Notes. Except as otherwise set forth in this Supplemental Indenture, owners of beneficial interests in Global Notes will not be entitled to receive physical delivery of Certificated Notes. Beneficial interests in a Global Note transferred in accordance with Section 209(a)(ii) to an Institutional Accredited Investor who is not a Qualified Institutional Buyer and beneficial interests in a Global Note transferred to the beneficial holders thereof pursuant to Section 209(e) will be issued in certificated, registered form without interest coupons.
(c) Restrictive Legends. Until the Resale Restriction Termination Date, all Global Notes and all Certificated Notes with respect to any series of the Notes shall bear a legend (the “Legend,,) in substantially the following form, unless such Notes have been sold pursuant to a registration statement that has been declared effective under the Securities Act:
“THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933 (THE “SECURITIES ACT”) AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) THAT IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS NOTE (OR ANY PREDECESSOR OF THIS NOTE) EXCEPT (1) TO THE ISSUER, (2) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (3) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (4) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT (IF AVAILABLE), (5) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE 501(a)(l), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS AN INSTITUTIONAL ACCREDITED INVESTOR ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF THE SECURITIES OF $100,000, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (6) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (4) OR (5) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.”
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SECTION 208 Transfer and Exchange.
(a) Notwithstanding any provision to the contrary herein, so long as a Global Note remains Outstanding and is held by or on behalf of the Depositary, transfers of a Global Note, in whole or in part, shall be made only in accordance with Section 209 and this Section 208.
(b) Transfers of a Global Note shall be limited to transfers of such Global Note in whole, or in part, to nominees of the Depositary or to a successor of the Depositary or such successor’s nominee.
(c) If Notes are issued upon the transfer, exchange or replacement of Notes subject to restrictions on transfer and bearing the Legend, or if a request is made to remove the Legend on a Note, the Notes so issued shall bear the Legend, or the Legend shall not be removed, as the case may be, unless there is delivered to the Company and the Registrar such satisfactory evidence, which shall include an opinion of counsel, as may be reasonably required by the Company and the Registrar, that neither the Legend nor the restrictions on transfer set forth therein are required to ensure that transfers thereof comply with the provisions of Rule 144A, Rule 144 or Regulation S under the Securities Act, that such Notes are not “restricted” within the meaning of Rule 144 under the Securities Act or that any such exchange or replacement Notes have been issued in a registered transaction under the Securities Act. Upon (i) provision of such satisfactory evidence, or (ii) notification by the Company to the Trustee and the Registrar of the sale or exchange of such Notes pursuant to a registration statement that is effective at the time of such sale, the Trustee, at the written direction of the Company, shall authenticate and deliver a Note that does not bear the Legend. If the Legend is removed from the face of a Note and the Note is subsequently held by an Affiliate of the Company, the Legend shall be reinstated.
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The Trustee and the Registrar shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Supplemental Indenture or under applicable law with respect to any transfer of any interest in any Note (including transfers between or among the Depositary’s participants or beneficial owners of interest in any Global Note) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Supplemental Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.
SECTION 209 Global Notes.
(a) Notwithstanding any other provisions of this Supplemental Indenture or the Notes, (A) transfers of a Global Note, in whole or in part, shall be made only in accordance with Section 2.07 of the Indenture and Sections 208 and 209(a)(i) below, (B) transfer of a beneficial interest in a Global Note for a Certificated Note shall comply with Section 2.07 of the Indenture and Section 209(a)(ii) below, and (C) transfers of a Certificated Note shall comply with Section 2.07 of the Indenture and Sections 209(a)(iii) and (iv) below.
(i) Transfer of Global Note. A Global Note may not be transferred, in whole or in part, to any Person other than the Depositary or a nominee thereof, and no such transfer to any such other Person may be registered; provided that this clause (i) shall not prohibit any transfer of a Note that is issued in exchange for a Global Note but is not itself a Global Note. No transfer of a Note to any Person shall be effective under the Indenture or the Notes unless and until such Note has been registered in the name of such Person. Nothing in this Section 209(a)(i) shall prohibit or render ineffective any transfer of a beneficial interest in a Global Note effected in accordance with the other provisions of this Section 209(a).
(ii) Restrictions on Transfer of a Beneficial Interest in a Global Note for a Certificated Note. A beneficial interest in a Global Note may not be exchanged for a Certificated Note except upon satisfaction of the requirements set forth below. Upon receipt by the Trustee of a request for transfer of a beneficial interest in a Global Note in accordance with Applicable Procedures for a Certificated Note in the form satisfactory to the Trustee, together with:
(a) so long as the Notes are Restricted Securities, certification, in the form set forth in Exhibit.B-1 attached hereto, and, if requested by the Company or the Registrar, certification in the form set forth in Exhibit B-2 attached hereto, that such beneficial interest in the Global Note is being transferred to an Institutional Accredited Investor;
(b) written instructions to the Trustee to make, or direct the Registrar to make, an adjustment on its books and records with respect to such Global Note to reflect a decrease in the aggregate principal amount of the Notes represented by the Global Note, such instructions to contain information regarding the Depositary account to be credited with such decrease; and
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(c) if the Company or Registrar so requests, an opinion of counsel or other evidence reasonably satisfactory to them as to compliance with the restrictions set forth in the Legend,
then the Trustee shall cause, or direct the Registrar to cause, in accordance with the standing instructions and procedures existing between the Depositary and the Registrar, the aggregate principal amount of Notes represented by the Global Note to be decreased by the aggregate principal amount of the Certificated Note to be issued, shall issue such Certificated Note and shall debit or cause to be debited to the account of the Person specified in such instructions a beneficial interest in the Global Note equal to the principal amount of the Certificated Note so issued.
(iii) Transfer and Exchange of Certificated Notes. When Certificated Notes are presented to the Registrar with a request:
(x) to register the transfer of such Certificated Notes; or
(y) to exchange such Certificated Notes for an equal principal amount of Certificated Notes of other authorized denominations,
the Registrar shall register the transfer or make the exchange as requested if its reasonable requirements for such transaction are met; provided, however, that the Certificated Notes surrendered for transfer or exchange:
(a) shall be duly endorsed or accompanied by a written instrument of transfer in form reasonably satisfactory to the Company and the Registrar, duly executed by the Holder thereof or his attorney duly authorized in writing; and
(b) so long as such Notes are Restricted Notes, such Notes are being transferred or exchanged pursuant to clause (A), (B) or (C) below, and are accompanied by the following additional information and documents, as applicable:
(A) if such Certificated Notes are being delivered to the Registrar by a Holder for registration in the name of such Holder, without transfer, a certification from such Holder to that effect; or
(B) if such Certificated Notes are being transferred to the Company, a certification to that effect; or
(C) if such Certificated Notes are being transferred pursuant to an exemption from registration, (i) a certification to that effect (in the form set forth in Exhibit B-1 and B-2, if applicable) and (ii) if the Company or Registrar so requests, an opinion of counsel or other evidence reasonably satisfactory to them as to the compliance with the restrictions set forth in the Legend.
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(iv) Restrictions on Transfer of a Certificated Note for a Beneficial Interest in a Global Note. A Certificated Note may not be exchanged for a beneficial interest in a Global Note except upon satisfaction of the requirements set forth below.
Upon receipt by the Trustee of a Certificated Note, duly endorsed or accompanied by appropriate instruments of transfer, in form satisfactory to the Trustee, together with:
(a) so long as the Notes are Restricted Notes, certification, in the form set forth in Exhibit B-1, that such Certificated Note is being transferred to a Qualified Institutional Buyer in accordance with Rule 144A; and
(b) written instructions directing the Trustee to make, or to direct the Registrar to make, an adjustment on its books and records with respect to such Global Note to reflect an increase in the aggregate principal amount of the Notes represented by the Global Note, such instructions to contain information regarding the Depositary account to be credited with such increase,
then the Trustee shall cancel such Certificated Note and cause, or direct the Registrar to cause, in accordance with the standing instructions and procedures existing between the Depositary and the Registrar, the aggregate principal amount of Notes represented by the Global Note to be increased by the aggregate principal amount of the Certificated Note to be exchanged, and shall credit or cause to be credited to the account of the Person specified in such instructions a beneficial interest in the Global Note equal to the principal amount of the Certificated Note so cancelled. If no Global Notes are then outstanding, the Company shall issue and the Trustee shall authenticate, upon receipt of a Company Order, a new Global Note in the appropriate principal amount.
(b) Subject to the succeeding paragraph, every Note shall be subject to the restrictions on transfer provided in the Legend including the delivery of an opinion of counsel, if so provided. Whenever any Restricted Note is presented or surrendered for registration of transfer or for exchange for a Note registered in a name other than that of the Holder, such Note must be accompanied by a certificate in substantially the form set forth in Exhibit B-1, dated the date of such surrender and signed by the Holder of such Note, as to compliance with such restrictions on transfer. The Registrar shall not be required to accept for such registration of transfer or exchange any Note not so accompanied by a properly completed certificate.
(c) The restrictions imposed by the Legend upon the transferability of any Note shall cease and terminate when such Note has been sold or exchanged pursuant to an effective registration statement under the Securities Act or may be transferred in compliance with Rule 144 under the Securities Act (or any successor provision thereto) or, if earlier, upon the expiration of the holding period applicable to sales thereof under Rule 144(k) under the Securities Act (or any successor provision). Any Note as to which such restrictions on transfer shall have expired in accordance with their terms or shall have terminated may, upon a surrender of such Note for exchange to the Registrar in accordance with the provisions of this Section 209 (accompanied, in the event that such restrictions on transfer have terminated by reason of a transfer in compliance with Rule 144 or any successor provision, by an opinion of counsel having substantial experience in practice under the Securities Act and otherwise reasonably acceptable to the Company, addressed to the Company, the Trustee and the Registrar and in form acceptable to the Company, to the effect that the transfer of such Note has been made in compliance with Rule 144 or such successor provision), be exchanged for a new Note, of like tenor and aggregate principal amount, which shall not bear the restrictive Legend. The Company shall inform the Trustee of the effective date of any registration statement registering the Notes under the Securities Act. The Trustee shall not be liable for any action taken or omitted to be taken by it in good faith in accordance with the aforementioned opinion of counsel.
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(d) As used in the preceding two paragraphs of this Section 209, the term “transfer” encompasses any sale, pledge, transfer, hypothecation or other disposition of any Note.
(e) The provisions of clauses (i), (ii), (iii), (iv), and (v) below shall apply only to Global Notes:
(i) Notwithstanding any other provisions of the Indenture or the Notes, except as provided in Section 209(a)(ii), a Global Note shall not be exchanged in whole or in part for a Note registered in the name of any Person other than the Depositary or one or more nominees thereof, provided that a Global Note may be exchanged for Notes registered in the names of any Person designated by the Depositary in the event that (i) the Depositary has notified the Company that it is unwilling or unable to continue as depositary for such Global Note or the Depositary has ceased to be a “clearing agency’’ registered under the Exchange Act, and a successor Depositary is not appointed by the Company within 90 days or (ii) an Event of Default has occurred and is continuing with respect to the Notes. Any Global Note exchanged pursuant to clause (i) above shall be so exchanged in whole and not in part, and any Global Note exchanged pursuant to clause (ii) above may be exchanged in whole or from time to time in part as directed by the Depositary. In the event that Certificated Notes are issued in respect of beneficial interests in a Regulation S Global Note at any time prior to one year after the date of this Supplemental Indenture (other than in a transaction subject to Rule 144A), the Company shall as promptly as practicable, institute procedures, including appropriate certifications, reasonably designed to ensure that any transfer of such Certificated Notes prior to the end of such one year is made only in accordance with the provisions of Regulation S, pursuant to registration under the Securities Act or pursuant to an exemption from such registration.
(ii) Notes issued in exchange for a Global Note or any portion thereof shall be issued in definitive, fully registered form, without interest coupons, shall have an aggregate principal amount equal to that of such Global Note or portion thereof to be so exchanged, shall be registered in such names and be in such authorized denominations as the Depositary shall designate and shall bear the Legend. Any Global Note to be exchanged in whole shall be surrendered by the Depositary to the Trustee, as Registrar. With regard to any Global Note to be exchanged in part, either such Global Note shall be so surrendered for exchange or, if the Trustee is acting as custodian for the Depositary or its nominee with respect to such Global Note, the principal amount thereof shall be reduced, by an amount equal to the portion thereof to be so exchanged, by means of an appropriate adjustment made on the records of the Trustee. Upon any such surrender or adjustment, the Trustee shall authenticate and deliver the Note issuable on such exchange to or upon the order of the Depositary or an authorized representative thereof.
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(iii) Subject to the provisions of clause (v) below, the registered Holder may grant proxies and otherwise authorize any Person, including Agent Members (as defined below) and Persons that may hold interests through Agent Members, to take any action which a Holder is entitled to take under the Indenture or the Notes.
(iv) In the event of the occurrence of any of the events specified in clause (i) above, the Company will promptly make available to the Trustee a reasonable supply of Certificated Notes.
(v) Neither any members of, or participants in, the Depositary ( collectively, the “Agent Members”) nor any other Persons on whose behalf Agent Members may act shall have any rights under the Indenture with respect to any Global Note registered in the name of the Depositary or any nominee thereof, or under any such Global Note, and the Depositary or such nominee, as the case may be, may be treated by the Company, the Trustee and any agent of the Company or the Trustee as the absolute owner and holder of such Global Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee or any agent of the Company or the Trustee from giving effect to any written certification, proxy or other authorization furnished by the Depositary or such nominee, as the case may be, or impair, as between the Depositary, its Agent Members and any other Person on whose behalf an Agent Member may act, the operation of customary practices of such Persons governing the exercise of the rights of a Holder of any Note.
SECTION 210 Event of Default. For purposes of this Eighth Supplemental Indenture and the Notes issued hereunder, Section 6.01 of the Original Indenture is hereby amended by deleting the clause immediately following subsection (i) in the first sentence of such Section and inserting in its place the following:
’‘then and in each and every case that an Event of Default described in clause (a), (b), (c), (d), (e), (f), (g) (with respect to Restricted Subsidiaries only), (h) (with respect to Restricted Subsidiaries only) or (i) with respect to Debt Securities of that series at the time Outstanding occurs and is continuing, unless the principal of and interest on all the Debt Securities of that series shall have already become due and payable, either the Trustee or the Holders of not less than 25% in aggregate principal amount of the Debt Securities of that series then Outstanding hereunder, by notice in writing to the Company (and to the Trustee if given by Holders), may declare the principal of (or, if the Debt Securities of that series are Original Issue Discount Debt Securities, such portion of the principal amount as may be specified in the terms of that series) and interest on all the Debt Securities of that series to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything in this Indenture or in the Debt Securities or Coupons appertaining thereto of that series contained to the contrary notwithstanding.”
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ARTICLE 3
REPORTS BY THE COMPANY
So long as any of the Debt Securities are “restricted securities” within the meaning of Rule 144(a)(3) under the Securities Act, the Company will, during any period in which it is not subject to Sections 13 or 15(d) of the Exchange Act or it is not exempt from such reporting requirements pursuant to and in compliance with Rule 12g3-2(b) under the Exchange Act, provide to each Holder of Notes and to each prospective purchaser (as designated by such Holder) of Notes, upon the request of such Holder or prospective purchaser, any information required to be provided by Rule 144A(d)(4) under the Securities Act.
ARTICLE 4
MISCELLANEOUS PROVISIONS
The Trustee makes no undertaking or representations in respect of, and shall not be responsible in any manner whatsoever for and in respect of, the validity or sufficiency of this Supplemental Indenture or the proper authorization or the due execution hereof by the Company or for or in respect of the recitals and statements contained herein, all of which recitals and statements are made solely by the Company.
The provisions of Article XI of the Original Indenture relating to defeasance shall apply to the Notes.
Except as expressly amended hereby, the Original Indenture shall continue in full force and effect in accordance with the provisions thereof, and the Original Indenture is in all respects hereby ratified and confirmed. This Supplemental Indenture and all its provisions shall be deemed a part of the Original Indenture in the manner and to the extent herein and therein provided.
This Supplemental Indenture shall be governed by, and construed in accordance with, the laws of the State of New York.
This Supplemental Indenture may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Parties have executed this Eighth Supplemental Indenture by their duly authorized signatories as of the date first above written.
| COX COMMUNICATIONS, INC. | |||
| By: | /s/ Susan W. Coker | ||
| Name: | Susan W. Coker | ||
| Title: | Vice President and Treasurer | ||
| By: | /s/ John M. Dyer | ||
| Name: | John M. Dyer | ||
| Title: | Senior Vice President and Chief Financial Officer | ||
Eighth Supplemental Indenture Signature Page
| THE BANK OF NEW YORK TRUST | |||
| COMPANY, N.A., as Trustee | |||
| By: | /s/ Karen Z. Kelly | ||
| Karen Z. Kelly | |||
| Vice President | |||
Eighth Supplemental Indenture Signature Page
EXHIBIT A-1
[FORM OF FACE OF SECURITY]
[TRANSFER RESTRICTED LEGEND]
[THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933 (THE “SECURITIES ACT’’) AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) THAT IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS NOTE (OR ANY PREDECESSOR OF THIS NOTE) EXCEPT (1) TO THE ISSUER, (2) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (3) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (4) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT (IF AVAILABLE), (5) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE 50l(a)(l), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS AN INSTITUTIONAL ACCREDITED INVESTOR ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF THE SECURITIES OF $100,000, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (6) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (4) OR (5) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.]
[GLOBAL NOTES LEGEND]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON 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.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS, IN WHOLE BUT NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN ARTICLE TWO OF THE EIGHTH SUPPLEMENTAL INDENTURE REFERRED TO ON THE REVERSE HEREOF.]
| No. R- | PRINCIPAL AMOUNT |
| CUSIP No. | $ |
COX COMMUNICATIONS, INC.
5.875% Notes due 2016
COX COMMUNICATIONS, INC., a Delaware corporation (hereinafter called the “Company,” which term includes any successor corporation under the Indenture referred to below), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of [ ] ($ ) on December 1, 2016 (the “Maturity Date”), unless previously redeemed, and to pay interest thereon from December 1, 2006 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, payable semiannually on June 1 and December 1 in each year (each, an “Interest Payment Date”), commencing June 1, 2007, at the rate of 5.875% per annum, until the principal hereof is paid or duly made available for payment. Interest shall be computed on the basis of a 360-day year of twelve 30-day months. The interest so payable and punctually paid or duly provided for on any Interest Payment Date will, as provided in the Indenture, be paid to the Person in whose name this Note (or one or more predecessor securities) is registered at the close of business on the regular record date for such interest, which shall be May 15 or November 15 (whether or not a Business Day), as the case may be, immediately preceding such Interest Payment Date. Any such interest which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date shall forthwith cease to be payable to the registered Holder hereof on the relevant regular record date by virtue of having been such Holder, and may be paid to the Person in whose name this Note (or one or more predecessor securities) is registered at the close of business on a subsequent special record date (which shall be not more than 15 days and not less than 10 days before the payment date) for the payment of such defaulted interest to be fixed by the Trustee, notice whereof shall be given to the Holders of Notes of this series not less than 10 days prior to such special record date, or may be paid at any time in any other lawful manner, all as more fully provided in such Indenture. If any Interest Payment Date, Redemption Date or the Maturity Date falls on a day that is not a Business Day, the required payment shall be made on the next Business Day as if it were made on the date such payment was due and no interest shall accrue on the amount so payable for the period from and after such Interest Payment Date, Redemption Date or the Maturity Date, as the case may be, to such next Business Day. Payments of principal, premium, if any, and interest hereunder shall be made in such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts and shall be made immediately available to the Holder (as defined below) hereof.
This Note is one of the duly authorized series of Debt Securities of the Company, designated as the Company’s “5.875% Notes due 2016” (the ’‘Notes”), initially limited to an aggregate principal amount of $600,000,000, all issued or to be issued under and pursuant to an Indenture dated as of June 27, 1995 (the “Original Indenture”), as supplemented by the Eighth Supplemental Indenture dated as of December 1, 2006 (the “Eighth Supplemental Indenture”, and together with the Original Indenture, the “Indenture”), duly executed and delivered by the Company to The Bank of New York Trust Company, N.A, as trustee (hereinafter referred to as the ’‘Trustee”), to which Indenture and all indentures supplemental thereto reference is hereby made for a description of the rights, limitation of rights, obligations, duties and immunities thereunder of the Trustee, the Company and the Holders (the words “Holders” or “Holder” meaning the registered holders or registered holder of the Notes).
This Note will be redeemable at the option of the Company, in whole at any time or in part from time to time, at a Redemption Price equal to the greater of (i) 100% of the principal amount of this Note to be redeemed or (ii) the sum, as determined by the Quotation Agent, of the present values of the principal amount of this Note to be redeemed and the remaining scheduled payments of interest on the principal amount of this Note to be redeemed (exclusive of interest accrued to the Redemption Date), in each case, discounted from their respective scheduled payment dates to the Redemption Date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as defined below) plus 25 basis points, plus accrued and unpaid interest thereon to the Redemption Date.
“Comparable Treasury Issue” means, with respect to this Note subject to redemption, the United States Treasury security selected by the Quotation Agent as having an actual or interpolated maturity comparable to the remaining life of this Note to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity with the remaining life of this Note to be redeemed.
“Comparable Treasury Price” means, with respect to any Redemption Date, the average of the Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and lowest of such Reference Treasury Dealer Quotations, or, if the Trustee obtains fewer than four such Reference Treasury Dealer Quotations, the average of all such quotations.
“Quotation Agent” means a Reference Treasury Dealer appointed by the Company.
“Reference Treasury Dealer” means, with respect to this Note subject to redemption, Barclays Capital Inc. and Merrill Lynch, Pierce, Fenner & Smith Incorporated, and their respective successors, and, at least one other primary United States Government securities dealer in New York City selected by Wachovia Capital Markets, LLC and two other primary United States Government securities dealers in The City of New York (each, a “Primary Treasury Dealer”) selected by the Company. If Barclays Capital Inc. or Merrill Lynch, Pierce, Fenner & Smith Incorporated shall cease to be a Primary Treasury Dealer, the Company will substitute another Primary Treasury Dealer.
“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and any Redemption Date, the average, as determined by the Trustee, of the bid and asked prices for the Comparable Treasury Issue, expressed in each case as a percentage of its principal amount, quoted in writing to the Trustee by such Reference Treasury Dealer at 3:30 p.m., New York City time, on the third Business Day preceding such Redemption Date.
“Treasury Rate” means, with respect to any Redemption Date applicable to this Note, the rate per annum equal to the semiannual yield to maturity or interpolated (on a day-count basis) of the Comparable Treasury Issue, calculated on the third Business Day preceding such Redemption Date using a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such Redemption Date.
This Note is not subject to any sinking fund.
Notice of any redemption will be mailed at least 30 days but not more than 60 days before the Redemption Date to the Holder hereof at its registered address.
If money sufficient to pay the Redemption Price with respect to and accrued and unpaid interest on the principal amount of this Note to be redeemed on the Redemption Date is deposited with the Trustee or Paying Agent on or before the Redemption Date and certain other conditions specified in the Indenture are satisfied, then on or after such date, interest will cease to accrue on the principal amount of this Note called for redemption.
Except as provided above, this Note is not redeemable by the Company prior to maturity and is not subject to any sinking fund.
In case an Event of Default shall occur and be continuing, the principal hereof may be declared, and upon such declaration shall become, due and payable, in the manner, with the effect and subject to the conditions provided in the Indenture.
Subject to certain exceptions set forth in the Indenture, (i) the Indenture may be amended with respect to the Notes with the consent of the Holders of at least a majority in principal amount outstanding of the Notes and (ii) any default or noncompliance with any provisions applicable to the Notes may be waived with the consent of the Holders of a majority in principal amount outstanding of the Notes. Subject to certain exceptions set forth in the Indenture, without the consent of any Holder, the Company and the Trustee may amend the Indenture or the Notes to cure any ambiguity, defect or inconsistency, or to provide for the assumption by a successor corporation of the obligations of the Company under the Indenture, or to provide for uncertificated Notes in addition to or in place of certificated Notes, or to add additional covenants or surrender any right or power conferred on the Company, or to establish the form or terms of the Notes of any series, or to appoint a successor Trustee or provide for administration of the trust by more than one Trustee, or to add to, delete from or revise the conditions, limitations, and restrictions on the authorized amount, terms or purposes of issue, authentication and delivery of the Notes or to add any additional event of default, or to modify the provisions of the Indenture as shall be necessary to facilitate the defeasance and discharge of the Notes as shall not adversely affect any Holders, or to secure the Notes, or to make provisions respect to exchange rights of Holders, or to make any change that does not adversely affect the rights of any Holder.
Subject to certain conditions, the Company at any time may terminate some or all of its obligations under the Notes and the Indenture if the Company deposits with the Trustee money or Government Obligations for the payment of principal, premium, if any, and interest on the Notes to the Maturity Date.
If money for the payment of principal or interest remains unclaimed for two years, the Trustee or Paying Agent shall pay the money back to the Company at its request unless an abandoned property law designates another Person. After any such payment, Holders entitled to the money must look only to the Company and not to the Trustee for payment.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and premium, if any, and interest on this Note at the place, at the respective times, at the rate, and in the coin or currency herein prescribed.
No director, officer, employee or stockholder, as such, of the Company shall have any liability for any obligations of the Company under this Note or the Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. Each Holder, by accepting this Note, waives and releases all such liability. The waiver and release are part of the consideration for the issue of this Note.
This Note and the Indenture shall be governed by and construed in accordance with the law of the State of New York applicable to agreements made or instruments entered into and, in each case, performed in said state.
Ownership of this Note shall be proved by the register for the Notes kept by the Registrar. The Company, the Trustee and any agent of the Company may treat the Person in whose name a Note is registered as the absolute owner thereof for all purposes.
Pursuant to a recommendation promulgated by the Committee on Uniform Note Identification Procedures, the Company has caused a CUSIP number to be printed on this Note and has directed the Trustee to use the CUSIP number as a convenience to Holders. No representation is made as to the correctness of such numbers and reliance may be placed only on the other identification numbers printed on this Note.
Terms used herein without definition that are defined in the Indenture shall have the meanings assigned to them in the Indenture.
Unless the Certificate of Authentication hereon has been executed by the Trustee under the Indenture referred to herein by the manual signature of one of its authorized officers, or on behalf of the Trustee by the manual signature of an authorized officer of the Trustee’s authenticating agent, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed, manually or by facsimile.
Date: December , 2006
| COX COMMUNICATIONS, INC. | |||
| By: | |||
| Name: | Susan W. Coker | ||
| Title: | Vice President and Treasurer | ||
| By: | |||
| Name: | John M. Dyer | ||
| Title: | Senior Vice President and Chief Financial Officer | ||
CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated therein referred to in the within-mentioned Indenture.
| THE BANK OF NEW YORK TRUST COMPANY, N.A. as Trustee |
||
| By: | ||
| Authorized Signatory | ||
Dated: December , 2006
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby sell(s) assign(s) and transfer(s) unto
Please insert social security number 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 attorney to transfer said Note of Cox Communications, Inc. on the books of Cox Communications, Inc. 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 this Note in every particular without alteration or enlargement or any change whatsoever. The Signature must be guaranteed by an “eligible guarantor institution meeting the requirements of the Registrar, which requirements include memberships or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934.
EXHIBIT A-2
[FORM OF FACE OF SECURITY]
[TRANSFER RESTRICTED LEGEND]
[THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933 (THE “SECURITIES ACT’’) AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) THAT IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS NOTE (OR ANY PREDECESSOR OF THIS NOTE) EXCEPT (1) TO THE ISSUER, (2) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (3) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (4) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT (IF AVAILABLE), (5) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE 501(a)(l), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS AN INSTITUTIONAL ACCREDITED INVESTOR ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF THE SECURITIES OF $100,000, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (6) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (4) OR (5) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.]
[GLOBAL NOTES LEGEND]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON 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.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS, IN WHOLE BUT NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN ARTICLE TWO OF THE EIGHTH SUPPLEMENTAL INDENTURE REFERRED TO ON THE REVERSE HEREOF.]
| No. R- CUSIP No. |
PRINCIPAL AMOUNT $ |
COX COMMUNICATIONS, INC.
6.450% Notes due 2036
COX COMMUNICATIONS, INC., a Delaware corporation (hereinafter called the “Company,” which term includes any successor corporation under the Indenture referred to below), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of [ ] ($[ ]) on December 1, 2036 (the “Maturity Date”), unless previously redeemed, and to pay interest thereon from December 1, 2006 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, payable semiannually on June 1 and December 1 in each year (each, an “Interest Payment Date”), commencing June 1, 2007, at the rate of 6.450% per annum, until the principal hereof is paid or duly made available for payment. Interest shall be computed on the basis of a 360-day year of twelve 30-day months. The interest so payable and punctually paid or duly provided for on any Interest Payment Date will, as provided in the Indenture, be paid to the Person in whose name this Note (or one or more predecessor securities) is registered at the close of business on the regular record date for such interest, which shall be May 15 or November 15 (whether or not a Business Day), as the case may be, immediately preceding such Interest Payment Date. Any such interest which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date shall forthwith cease to be payable to the registered Holder hereof on the relevant regular record date by virtue of having been such Holder, and may be paid to the Person in whose name this Note (or one or more predecessor securities) is registered at the close of business on a subsequent special record date (which shall be not more than 15 days and not less than 10 days before the payment date) for the payment of such defaulted interest to be fixed by the Trustee, notice whereof shall be given to the Holders of Notes of this series not less than 10 days prior to such special record date, or may be paid at any time in any other lawful manner, all as more fully provided in such Indenture. If any Interest Payment Date, Redemption Date or the Maturity Date falls on a day that is not a Business Day, the required payment shall be made on the next Business Day as if it were made on the date such payment was due and no interest shall accrue on the amount so payable for the period from and after such Interest Payment Date, Redemption Date or the Maturity Date, as the case may be, to such next Business Day. Payments of principal, premium, if any, and interest hereunder shall be made in such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts and shall be made immediately available to the Holder (as defined below) hereof.
This Note is one of the duly authorized series of Debt Securities of the Company, designated as the Company’s “6.450% Notes due 2036” (the ’‘Notes”), initially limited to an aggregate principal amount of $400,000,000, all issued or to be issued under and pursuant to an Indenture dated as of June 27, 1995 (the “Original Indenture”), as supplemented by the Eighth Supplemental Indenture dated as of December 1, 2006 (the “Eighth Supplemental Indenture,” and together with the Original Indenture, the “Indenture”), duly executed and delivered by the Company to The Bank of New York Trust Company, N.A, as trustee (hereinafter referred to as the ’‘Trustee”), to which Indenture and all indentures supplemental thereto reference is hereby made for a description of the rights, limitation of rights, obligations, duties and immunities thereunder of the Trustee, the Company and the Holders (the words “Holders” or “Holder” meaning the registered holders or registered holder of the Notes).
This Note will be redeemable at the option of the Company, in whole at any time or in part from time to time, at a Redemption Price equal to the greater of (i) 100% of the principal amount of this Note to be redeemed or (ii) the sum, as determined by the Quotation Agent, of the present values of the principal amount of this Note to be redeemed and the remaining scheduled payments of interest on the principal amount of this Note to be redeemed (exclusive of interest accrued to the Redemption Date), in each case, discounted from their respective scheduled payment dates to the Redemption Date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as defined below) plus 30 basis points, plus accrued and unpaid interest thereon to the Redemption Date.
“Comparable Treasury Issue” means, with respect to this Note subject to redemption, the United States Treasury security selected by the Quotation Agent as having an actual or interpolated maturity comparable to the remaining life of this Note to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity with the remaining life of this Note to be redeemed.
“Comparable Treasury Price” means, with respect to any Redemption Date, the average of the Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and lowest of such Reference Treasury Dealer Quotations, or, if the Trustee obtains fewer than four such Reference Treasury Dealer Quotations, the average of all such quotations.
“Quotation Agent” means a Reference Treasury Dealer appointed by the Company.
“Reference Treasury Dealer” means, with respect to this Note subject to redemption, Barclays Capital Inc. and Merrill Lynch, Pierce, Fenner & Smith Incorporated, and their respective successors, and, at least one other primary United States Government securities dealer in New York City selected by Wachovia Capital Markets, LLC and two other primary United States Government securities dealers in The City of New York (each, a “Primary Treasury Dealer’’) selected by the Company. If Barclays Capital Inc. or Merrill Lynch, Pierce, Fenner & Smith Incorporated shall cease to be a Primary Treasury Dealer, the Company will substitute another Primary Treasury Dealer.
“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and any Redemption Date, the average, as determined by the Trustee, of the bid and asked prices for the Comparable Treasury Issue, expressed in each case as a percentage of its principal amount, quoted in writing to the Trustee by such Reference Treasury Dealer at 3:30 p.m., New York City time, on the third Business Day preceding such Redemption Date.
“Treasury Rate” means, with respect to any Redemption Date applicable to this Note, the rate per annum equal to the semiannual yield to maturity or interpolated (on a day-count basis) of the Comparable Treasury Issue, calculated on the third Business Day preceding such Redemption Date using a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such Redemption Date.
This Note is not subject to any sinking fund.
Notice of any redemption will be mailed at least 30 days but not more than 60 days before the Redemption Date to the Holder hereof at its registered address.
If money sufficient to pay the Redemption Price with respect to and accrued and unpaid interest on the principal amount of this Note to be redeemed on the Redemption Date is deposited with the Trustee or Paying Agent on or before the Redemption Date and certain other conditions specified in the Indenture are satisfied, then on or after such date, interest will cease to accrue on the principal amount of this Note called for redemption.
Except as provided above, this Note is not redeemable by the Company prior to maturity and is not subject to any sinking fund.
In case an Event of Default shall occur and be continuing, the principal hereof may be declared, and upon such declaration shall become, due and payable, in the manner, with the effect and subject to the conditions provided in the Indenture.
Subject to certain exceptions set forth in the Indenture, (i) the Indenture may be amended with respect to the Notes with the consent of the Holders of at least a majority in principal amount outstanding of the Notes and (ii) any default or noncompliance with any provisions applicable to the Notes may be waived with the consent of the Holders of a majority in principal amount outstanding of the Notes. Subject to certain exceptions set forth in the Indenture, without the consent of any Holder, the Company and the Trustee may amend the Indenture or the Notes to cure any ambiguity, defect or inconsistency, or to provide for the assumption by a successor corporation of the obligations of the Company under the Indenture, or to provide for uncertificated Notes in addition to or in place of certificated Notes, or to add additional covenants or surrender any right or power conferred on the Company, or to establish the form or terms of the Notes of any series, or to appoint a successor Trustee or provide for administration of the trust by more than one Trustee, or to add to, delete from or revise the conditions, limitations, and restrictions on the authorized amount, terms or purposes of issue, authentication and delivery of the Notes or to add any additional event of default, or to modify the provisions of the Indenture as shall be necessary to facilitate the defeasance and discharge of the Notes as shall not adversely affect any Holders, or to secure the Notes, or to make provisions respect to exchange rights of Holders, or to make any change that does not adversely affect the rights of any Holder.
Subject to certain conditions, the Company at any time may terminate some or all of its obligations under the Notes and the Indenture if the Company deposits with the Trustee money or Government Obligations for the payment of principal, premium, if any, and interest on the Notes to the Maturity Date.
If money for the payment of principal or interest remains unclaimed for two years, the Trustee or Paying Agent shall pay the money back to the Company at its request unless an abandoned property law designates another Person. After any such payment, Holders entitled to the money must look only to the Company and not to the Trustee for payment.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and premium, if any, and interest on this Note at the place, at the respective times, at the rate, and in the coin or currency herein prescribed.
No director, officer, employee or stockholder, as such, of the Company shall have any liability for any obligations of the Company under this Note or the Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. Each Holder, by accepting this Note, waives and releases all such liability. The waiver and release are part of the consideration for the issue of this Note.
This Note and the Indenture shall be governed by and construed in accordance with the law of the State of New York applicable to agreements made or instruments entered into and, in each case, performed in said state.
Ownership of this Note shall be proved by the register for the Notes kept by the Registrar. The Company, the Trustee and any agent of the Company may treat the Person in whose name a Note is registered as the absolute owner thereof for all purposes.
Pursuant to a recommendation promulgated by the Committee on Uniform Note Identification Procedures, the Company has caused a CUSIP number to be printed on this Note and has directed the Trustee to use the CUSIP number as a convenience to Holders. No representation is made as to the correctness of such numbers and reliance may be placed only on the other identification numbers printed on this Note.
Terms used herein without definition that are defined in the Indenture shall have the meanings assigned to them in the Indenture.
Unless the Certificate of Authentication hereon has been executed by the Trustee under the Indenture referred to herein by the manual signature of one of its authorized officers, or on behalf of the Trustee by the manual signature of an authorized officer of the Trustee’s authenticating agent, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed, manually or by facsimile.
Date: December , 2006
| COX COMMUNICATIONS, INC. | |||
| By: | |||
| Name: | Susan W. Coker | ||
| Title: | Vice President and Treasurer | ||
| By: | |||
| Name: | John M. Dyer | ||
| Title: | Senior Vice President and Chief Financial Officer | ||
CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated therein referred to in the within-mentioned Indenture.
| THE BANK OF NEW YORK TRUST COMPANY, N.A. as Trustee |
||
| By: | ||
| Authorized Signatory | ||
Dated: December , 2006
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby sell(s) assign(s) and transfer(s) unto
Please insert social security number 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 attorney to transfer said Note of Cox Communications, Inc. on the books of Cox Communications, Inc. 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 this Note in every particular without alteration or enlargement or any change whatsoever. The Signature must be guaranteed by an “eligible guarantor institution meeting the requirements of the Registrar, which requirements include memberships or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934.
EXHIBIT B-1
Transfer Certificate
In connection with a transfer of any of the $ principal amount of the Notes due 20 (the “Notes”) of Cox Communications, Inc. (the “Company”) within the period prior to the expiration of the holding period applicable to the sales thereof under Rule 144(k) under the Securities Act of 1933, as amended (the “Securities Act”) (or any successor provision), the undersigned registered owner of this Note hereby certifies with respect to $ principal amount of the above-captioned securities presented or surrendered on the date hereof (the “Surrendered Notes”) for registration of transfer, or for exchange where the securities deliverable upon such exchange are to be registered in a name other than that of the undersigned registered owner (each such transaction being a “transfer”), that such transfer complies with the restrictive legend set forth on the face of the Surrendered Notes for the reason checked below:
| ☐ | A transfer of the Surrendered Notes is made to the Company or any subsidiaries; or | |
| ☐ | The transfer of the Surrendered Notes complies with Rule 144A under the Securities Act; or | |
| ☐ | The transfer of the Surrendered Notes is to an institutional accredited investor, as described in Rule 501(a)(l), (2), (3) or (7) of Regulation D under the Securities Act; or | |
| ☐ | The transfer of the Surrendered Notes is pursuant to an effective registration statement under the Securities Act, or | |
| ☐ | The transfer of the Surrendered Notes is pursuant to an offshore transaction in accordance with Rule 904 of Regulation S under the Securities Act; or | |
| ☐ | The transfer of the Surrendered Notes is pursuant to another available exemption from the registration requirement of the Securities Act. |
and unless the box below is checked, the undersigned confirms that, to the undersigned’s knowledge, such Notes are not being transferred to an “affiliate” of the Company as defined in Rule 144 under the Securities Act (an “Affiliate”).
| ☐ | The transferee is an Affiliate of the Company. |
| DATE: | |||
| Signature(s) |
(If the registered owner is a corporation, partnership
or
fiduciary, the title of the Person signing on behalf of
such registered owner must be stated.)
B-1-1
EXHIBIT B-2
Form of Letter to be Delivered by Accredited Investors
Cox Communications, Inc.
1400 Lake Hearn Drive, NE
Atlanta, Georgia 30319
Attention: Treasurer
The Bank of New York Trust Company, N.A., as Registrar
101 Barclay Street
New York, New York 10286
Attention: Corporate Trust Office
Dear Sirs:
We are delivering this letter in connection with the proposed transfer of $ principal amount of the Notes due 20 (the “Notes”) of Cox Communications, Inc. (the “Company’’).
We hereby confirm that:
(i) we are an “accredited investor” within the meaning of Rule 501 (a)(l), (2), (3) or (7) of Regulation D under the Securities Act of 1933, as amended (the “Securities Act”), or an entity in which all of the equity owners are accredited investors within the meaning of Rule 501(a)(l), (2), (3) or (7) of Regulation D under the Securities Act (an “Institutional Accredited Investor”);
(ii) (A) the purchase of Notes by us is for our own account or for the account of one or more other Institutional Accredited Investors or as fiduciary for the account of one or more trusts, each of which is an “accredited investor” within the meaning of Rule 50l(a)(7) under the Securities Act and for each of which we exercise sole investment discretion or (B) we are a “bank,” within the meaning of Section 3(a)(2) of the Securities Act, or a “savings and loan association” or other institution described in Section 3(a)(5)(A) of the Securities Act that is acquiring Notes as fiduciary for the account of one or more institutions for which we exercise sole investment discretion;
(iii) we will acquire Notes having a minimum principal amount of not less than $100,000 for our own account or for any separate account for which we are acting;
(iv) we have such knowledge and experience in financial and business matters that we are capable of evaluating the merits and risks of purchasing Notes; and
(v) we are not acquiring Notes with a view to distribution thereof or with any present intention of offering or selling Notes, except as permitted below; provided that the disposition of our property and property of any accounts for which we are acting as fiduciary shall remain at all times within our control.
B-2-1
We understand that the Notes were originally offered and sold in a transaction not involving any public offering within the United States within the meaning of the Securities Act and that the Notes have not been registered under the Securities Act, and we agree, on our own behalf and on behalf of each account for which we acquire any Notes, that we will offer, sell or otherwise transfer such Notes, or any beneficial interest therein, prior to the date which is two years after the later of the date of original issuance of the Notes and the last date on which the Company or an affiliate of the Company was the owner of the Notes or any beneficial interest therein (or any predecessor of the Notes) only:
(1) to the Company or any subsidiary thereof, or
(2) for as long as the Notes are eligible for resale pursuant to Rule 144A, to a person we reasonably believe is a “qualified institutional buyer’’ (as defined in Rule 144A under the Securities Act) that purchases for its own account or for the account of a qualified institutional buyer to which notice is given that the transfer is being made in reliance on Rule 144A, or
(3) to an Institutional Accredited Investor that is acquiring the Note for its own account, or for the account of such Institutional Accredited Investor for investment purposes and not with a view to, or for offer or sale in connection with, any distribution in violation of the Securities Act, or
(4) pursuant to a registration statement which has been declared effective under the Securities Act, or
(5) outside the United States to non-U.S. persons in an offshore transaction in accordance with Rule 903 or 904 of Regulation S under the Securities Act, or
(6) pursuant to another available exemption from registration under the Securities Act, including under Rule 144, if available, and, in each case, in accordance with any applicable securities laws of any State of the United States or any other applicable jurisdiction and in accordance with and subject to the legends set forth on the Notes.
We acknowledge that the Company, others and you will rely upon our confirmations, acknowledgments and agreements set forth herein, and we agree to notify you promptly in writing if any of our representations or warranties herein ceases to be accurate and complete.
THIS LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK.
| (Name of Purchaser) | |||
| By: | |||
| Name: | |||
| Title: | |||
| Address: | |||
B-2-2
Exhibit 4.8
EXECUTION COPY
COX COMMUNICATIONS, INC.
THE BANK OF NEW YORK TRUST COMPANY, N.A.,
as Trustee
NINTH SUPPLEMENTAL INDENTURE
Dated as of June 5, 2008
Supplement to Indenture
Dated as of June 27, 1995
Creating two series of Debt Securities designated
6.25% Notes due 2018
6.95% Notes due 2038
NINTH SUPPLEMENTAL INDENTURE, dated as of the 5th day of June, 2008 between COX COMMUNICATIONS, INC., a corporation existing under the laws of the State of Delaware, having its principal executive office located at 1400 Lake Hearn Drive, NE, Atlanta, Georgia 30319 (the “Company”), and THE BANK OF NEW YORK TRUST COMPANY, N.A., a national banking association, having a designated office located at 900 Ashwood Parkway, Suite 425, Atlanta, Georgia 30338, as trustee (the “Trustee”);
WHEREAS, the Company has heretofore executed and delivered to the Trustee an Indenture, dated as of June 27, 1995 (the “Original Indenture” and, as amended by this Supplemental Indenture, the “Indenture”), providing for the issuance by the Company from time to time of its debentures, notes, bonds or other evidences of indebtedness (in the Original Indenture and herein called the “Debt Securities”), unlimited as to principal amount, to be issued in one or more series;
WHEREAS, the Company, in the exercise of the power and authority conferred upon and reserved to it under the provisions of the Original Indenture and pursuant to appropriate resolutions of the Board of Directors, has duly determined to make, execute and deliver to the Trustee this Supplemental Indenture to the Original Indenture in order to establish the form and terms of, and to provide for the creation and issuance of, two new series of Debt Securities designated as the “6.25% Notes due 2018” in the initial aggregate principal amount of $750,000,000 (the “2018 Notes”) and the “6.95% Notes due 2038” in the initial aggregate principal amount of $250,000,000 (the “2038 Notes” and, together with the 2018 Notes, the “Notes”);
WHEREAS, Section 9.01 of the Original Indenture provides, among other things, that the Company and the Trustee, at any time and from time to time, without the consent of any Holders, may enter into an indenture supplemental to the Original Indenture to establish the form or terms of Debt Securities of any series as permitted by Sections 2.01 and 2.03 of the Original Indenture;
WHEREAS, all things necessary to make the Notes, when executed by the Company and authenticated and delivered by the Trustee and issued upon the terms and subject to the conditions hereinafter and in the Original Indenture set forth against payment therefor, the valid, binding and legal obligations of the Company and to make this Supplemental Indenture a valid, binding and legal agreement of the Company, have been done;
NOW, THEREFORE, THIS NINTH SUPPLEMENTAL INDENTURE WITNESSETH that, in order to establish the form and terms of the series of Debt Securities designated as the “6.25% Notes due 2018” and the “6.95% Notes due 2038” and for and in consideration of the premises and of the covenants contained in the Original Indenture and in this Supplemental Indenture and for other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of the Notes, as follows:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101 Definitions. For all purposes of the Original Indenture and this Supplemental Indenture relating to two series of Debt Securities (consisting of the Notes) created hereby, except as otherwise expressly provided or unless the context otherwise requires, the terms defined in this Article have the meanings assigned to them in this Article. Each capitalized term that is used in the Original Indenture and this Supplemental Indenture but not defined herein shall have the meaning specified in the Original Indenture.
“Agent Members” has the meaning specified in Section 209(e)(v).
“Applicable Procedures” means, with respect to any transfer or transaction involving a Global Note or beneficial interest therein, the rules and procedures of the Depositary for such Note, in each case to the extent applicable to such transaction and as’ in effect from time to time.
“Business Day” means any day other than a Saturday, a Sunday or a legal holiday or a day on which banking institutions or trust companies in The City of New York are authorized or obligated by law to close.
“cash” means U.S. legal tender.
“Certificated Notes” means a note required to bear the Legend set forth on the forms of the Notes attached as Exhibits A-1 and A-2 to this Supplemental Indenture.
“Clearstream” means Clearstream Banking, société anonyme (formerly Cedelbank).
“Comparable Treasury Issue” means, with respect to the Notes subject to redemption, the United States Treasury security or securities (in the case of a redemption of both the 2018 Notes and the 2038 Notes) selected by the Quotation Agent as having an actual or interpolated maturity or maturities, as the case may be, comparable to the remaining life of the Notes to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity with the remaining life of the Notes to be redeemed.
“Comparable Treasury Price” means, with respect to any Redemption Date for the Notes, the average of the Reference Treasury Dealer Quotations for each series or partial series of the Notes subject to redemption on such Redemption Date, after excluding the highest and lowest of such Reference Treasury Dealer Quotations for each series of the Notes subject to redemption, or, if the Trustee obtains fewer than four such Reference Treasury Dealer Quotations for each series of the Notes subject to redemption, the average of all such quotations.
“Debt Securities” has the meaning specified in the first recital hereof.
“Depositary” means, with respect to the Notes issuable in whole or in part in global form, DTC and any nominee thereof, until a successor shall have been appointed and become such pursuant to the applicable provisions of the Indenture, and thereafter “Depositary” shall mean or include such successor and any nominee thereof.
“DTC” means The Depository Trust Company.
“Euroclear” means the Euroclear System.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Global Note” means a Note issued in global form and deposited with or on behalf of the Depositary.
“Holder” and “Noteholder,” in the case of any Note, means the Person in whose name such Note is registered in the Debt Security Register.
“Institutional Accredited Investor” means an institutional “accredited investor” as defined in Rule 501(a)(l), (2), (3) and (7) under the Securities Act.
“Interest Payment Date,” in respect of any Note, has the meaning assigned to it in such Note.
“Issue Date” means June 5, 2008.
“Issue Price” of any Note means, in connection with the original issuance of such Note, the initial issue price as set forth on the face of the Note.
“Legend” has the meaning specified in Section 207(c).
“Notes” has the meaning specified in the recitals hereof.
“Purchase Agreement” means the Purchase Agreement dated May 29, 2008, among the Company and J.P. Morgan Securities Inc., Citigroup Global Markets Inc., Wachovia Capital Markets, LLC, Barclays Capital Inc., Deutsche Bank Securities Inc. and Lehman Brothers Inc., acting as representatives on behalf of the Initial Purchasers (as defined therein).
“Qualified Institutional Buyer” has the meaning specified in Rule 144A.
“Quotation Agent” means a Reference Treasury Dealer appointed by the Company.
“Redemption Date,” with respect to any 2018 Note or 2038 Note or portion thereof to be redeemed, means the date fixed for redemption in accordance with the terms of such Notes and Article III of the Original Indenture.
“Redemption Price,” with respect to any 2018 Note or 2038 Note or portion thereof to be redeemed, means the greater of:
(a) 100% of the principal amount of the 2018 Notes or 2038 Notes or portion thereof, as applicable, to be redeemed; or
(b) the sum, as determined by the Quotation Agent, of the present values of the principal amount and the remaining scheduled payments of interest on such 2018 Notes or 2038 Notes, as applicable (and, for avoidance of doubt, calculated separately for each series of Notes subject to redemption) to be redeemed (exclusive of interest accrued to the Redemption Date), in each case, discounted from their respective scheduled payment dates to the Redemption Date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 35 basis points in the case of the 2018 Notes and 35 basis points in the case of the 2038 Notes,
plus, in either case, accrued and unpaid interest thereon to the Redemption Date.
“Reference Treasury Dealer” means (1) with respect to the 2018 Notes subject to redemption, J.P. Morgan Securities Inc., Citigroup Global Markets Inc. and their respective successors, one other primary United States Government securities dealer in New York City selected by Wachovia Capital Markets, LLC or its successor, and two other primary United States Government securities dealers selected by the Company and (2) with respect to the 2038 Notes subject to redemption, J.P. Morgan Securities Inc., Barclays Capital Inc., Deutsche Bank Securities Inc., Lehman Brothers Inc. and one other primary United States Government securities dealer selected by the Company; provided, however, that if any of the foregoing shall cease to be a primary United States Government securities dealer with respect to either the 2018 Notes or the 2038 Notes, the Company will substitute other primary United States Government securities dealer for such series of notes.
“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and any Redemption Date, the average, as determined by the Trustee, of the bid and asked prices for the Comparable Treasury Issue, expressed in each case as a percentage of its principal amount, quoted in writing to the Trustee by such Reference Treasury Dealer at 3:30 p.m., New York City time, on the third Business Day preceding such Redemption Date.
“Regulation S” means Regulation S under the Securities Act.
“Regulation S Global Note” means a Global Note in the form of the Notes attached hereto as Exhibits A-1 and A-2, and that is deposited with and registered in the name of the Depositary, representing Notes sold in offshore transactions in reliance on Regulation S.
“Resale Restriction Termination Period” means the period from the Issue Date until (1) the date that is one year after the later of (a) the date of the original issuance of such Notes or (b) the last day on which the Company or any of its Affiliates was the owner of the Notes, and (2) such later date, if any, as may be required by applicable laws.
“Restricted Note” means a Note required to bear the restrictive Legends set forth on the forms of Note attached as Exhibits A-1 and A-2 to this Supplemental Indenture.
“Rule l 44A” means Rule 144A under the Securities Act (or any successor provision), as it may be amended from time to time.
“SEC” means the U.S. Securities and Exchange Commission.
“Securities Act” means the Securities Act of 1933, as amended.
“Supplemental Indenture” means this Ninth Supplemental Indenture.
“Treasury Rate” has the meaning assigned to it in the Notes.
“Trustee” has the meaning specified in the first paragraph hereof.
“US Global Note” means a Global Note in the form of the Notes attached hereto as Exhibits A-1 and A-2, and that is deposited with and registered in the name of the Depositary, representing Notes sold in reliance on Rule 144A.
SECTION 102 Section References. Each reference to a particular section set forth in this Supplemental Indenture shall, unless the context otherwise requires, refer to this Supplemental Indenture.
ARTICLE 2
THE NOTES
SECTION 201 Title of the Notes. The Notes shall be known and designated as the “6.25% Notes due 2018” and the “6.95% Notes due 2038” of the Company, respectively.
SECTION 202 Amount. The aggregate principal amount of Notes that may be authenticated and delivered under this Supplemental Indenture is initially limited to $750,000,000 for the 2018 Notes and $250,000,000 for the 2038 Notes, except for Notes authenticated and delivered upon registration of transfer of, or exchange for, or in lieu of, other Notes pursuant to Section 2.07, 2.08, 2.09 or 9.04 of the Indenture, or upon repayment in part of any 2018 Note or 2038 Note pursuant to Article III of the Original Indenture. The Company shall have the ability to reopen any series of the Notes and issue additional Notes of such series or establish different terms of such series.
SECTION 203 Stated Maturity. The Stated Maturity of the 2018 Notes shall be June 1, 2018. The Stated Maturity of the 2038 Notes shall be June 1. 2038.
SECTION 204 Interest.
(a) The 2018 Notes shall bear cash interest at the rate of 6.25% from June 5, 2008 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, payable semiannually on June l and December 1 of each year, beginning on December 1, 2008, to the Persons in whose names such Notes are registered at the close of business on the immediately preceding May 15 or November 15, as the case may be, whether or not a Business Day. Interest on the 2018 Notes will be computed on the basis of a 360-day year of twelve 30-day months.
(b) The 2038 Notes shall bear cash interest at the rate of 6.95% from June 5, 2008 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, payable semiannually on June 1 and December l of each year, beginning on December l, 2008, to the Persons in whose names such Notes are registered at the close of business on the immediately preceding May 15 or November 15, as the case may be, whether or not a Business Day. Interest on the 2038 Notes will be computed on the basis of a 360-day year of twelve 30-day months.
SECTION 205 Payments.
(a) Payments of principal, premium, if any, and interest on the Notes will be made to the Depositary, or its nominee, as the case may be, as the registered owner and holder of the Global Notes representing the Notes. In the event that the Notes are issued in the form of Certificated Notes, payments of principal, premium, if any, and interest thereon will be at the office of the Trustee in The City of New York designated for such purpose, provided that payment of interest, other than interest payable at Stated Maturity or upon redemption, may be made at the option of the Company by check mailed by the Trustee to the address of the Person entitled as shown on the Debt Securities Registrar.
(b) If any Stated Maturity date, Redemption Date or Interest Payment Date, falls on a day that is not a Business Day, the required payment shall be made on the next Business Day, and no interest shall accrue on the amount so payable for the period of such payment date and the next Business Day.
(c) Payments of principal, premium, if any, and interest on the Notes shall be made in cash or such other coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debt.
SECTION 206 Redemption. Both series of the Notes shall be redeemable, in whole or in part, on one or more Redemption Dates at the applicable Redemption Price. If the Redemption Date is not an Interest Payment Date, the amount of the scheduled interest payment on the next succeeding Interest Payment Date will be reduced by the amount of interest accrued to the Redemption Date.
SECTION 207 Forms; Denominations. The Notes shall be Registered Securities. The Global Notes representing the Notes shall be in substantially the forms attached hereto as Exhibits A-1 and A-2.
The Notes are being offered and sold by the Company pursuant to the Purchase Agreement.
(a) Global Notes. (i) Notes offered and sold in reliance on Rule 144A as provided in the Purchase Agreement shall be issued initially in the form of one or more US Global Notes in definitive fully registered form without interest coupons, deposited on behalf of the subscribers for the Notes represented thereby with the Trustee, as custodian for the Depositary and registered in the name of DTC or a nominee thereof, duly executed by the Company and authenticated by the Trustee as provided in the Indenture. The aggregate principal amount of the US Global Notes may from time to time be increased or decreased by adjustments made on the records of the Trustee and the Depositary as hereinafter provided.
Notes offered and sold in offshore transactions in reliance on Regulation S as provided in the Purchase Agreement shall be issued initially in the form of one or more Regulation S Global Notes in definitive fully registered form without interest coupons, deposited on behalf of the subscribers for the Notes represented thereby with the Trustee, as custodian for the Depositary, for the accounts of Euroclear and Clearstream and registered in the name of DTC or a nominee thereof, duly executed by the Company and authenticated by the Trustee as hereinafter provided. The aggregate principal amount of the Regulation S Global Notes may from time to time be increased or decreased by adjustments made on the records of the Trustee and the Depositary as hereinafter provided.
Each Global Note shall represent such of the Outstanding Notes as shall be specified therein and each shall provide that it shall represent the aggregate principal amount of Outstanding Notes from time to time endorsed thereon and the aggregate principal amount of Outstanding Notes represented thereby may from time to time be reduced to reflect exchanges or redemptions. Any adjustment of the aggregate principal amount of a Global Note representing the Notes to reflect the amount of any decrease in the principal amount of Outstanding Notes represented thereby shall be made by the Trustee in accordance with instructions given by the Holder thereof as required by Section 209 hereof and shall be made on the records of the Trustee and the Depositary.
(ii) Book-Entry Provisions. This Section 207(a)(ii) shall apply only to Global Notes.
The Company shall execute and the Trustee shall, in accordance with this Section 207(a)(ii) and Section 2.02 of the Indenture, authenticate and deliver initially one or more Global Notes that (a) shall be registered in the name of the Depositary, (b) shall be delivered by the Trustee to the Depositary or pursuant to the Depositary’s instructions and (c) shall bear legends substantially to the following effect:
“UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON 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.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS, IN WHOLE BUT NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN ARTICLE TWO OF THE NINTH SUPPLEMENTAL INDENTURE REFERRED TO ON THE REVERSE HEREOF.”
(b) Certificated Notes. Except as otherwise set forth in this Supplemental Indenture, owners of beneficial interests in Global Notes will not be entitled to receive physical delivery of Certificated Notes. Beneficial interests in a Global Note transferred in accordance with Section 209(a)(ii) to an Institutional Accredited Investor who is not a Qualified Institutional Buyer and beneficial interests in a Global Note transferred to the beneficial holders thereof pursuant to Section 209(e) will be issued in certificated, registered form without interest coupons.
(c) Restrictive Legends. Until the completion of the Resale Restriction Termination Period, all Global Notes and all Certificated Notes with respect to any series of the Notes shall bear a legend (the “Legend”) in substantially the following form, unless such Notes have been sold pursuant to a registration statement that has been declared effective under the Securities Act:
“THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933 (THE “SECURITIES ACT”) AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED PRIOR TO THE END OF THE PERIOD (THE “RESALE RESTRICTION PERIOD”) FROM THE DATE OF ORIGINAL ISSUANCE UNTIL (A) THE DATE THAT IS ONE YEAR AFTER THE LATER OF (X) THE DATE OF THE ORIGINAL ISSUANCE OF THE NOTES OR (Y) THE LAST DAY ON WHICH THE ISSUER OR ANY OF ITS AFFILIATES WAS THE OWNER OF THE NOTES, AND (B) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAWS, EXCEPT (1) TO THE ISSUER, (2) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (3) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (4) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT (IF AVAILABLE), (5) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE 501(a)(l), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS AN INSTITUTIONAL ACCREDITED INVESTOR ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF THE SECURITIES OF $100,000, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (6) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (4) OR (5) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION PERIOD.”
SECTION 208 Transfer and Exchange.
(a) Notwithstanding any provision to the contrary herein, so long as a Global Note remains Outstanding and is held by or on behalf of the Depositary, transfers of a Global Note, in whole or in part, shall be made only in accordance with Section 209 and this Section 208.
(b) Transfers of a Global Note shall be limited to transfers of such Global Note in whole, or in part, to nominees of the Depositary or to a successor of the Depositary or such successor’s nominee.
(c) If Notes are issued upon the transfer, exchange or replacement of Notes subject to restrictions on transfer and bearing the Legend, or if a request is made to remove the Legend on a Note, the Notes so issued shall bear the Legend, or the Legend shall not be removed, as the case may be, unless there is delivered to the Company and the Registrar such satisfactory evidence, which shall include an opinion of counsel, as may be reasonably required by the Company and the Registrar, that neither the Legend nor the restrictions on transfer set forth therein are required to ensure that transfers thereof comply with the provisions of Rule 144A, Rule 144 or Regulation S under the Securities Act, that such Notes are not “restricted” within the meaning of Rule 144 under the Securities Act or that any such exchange or replacement Notes have been issued in a registered transaction under the Securities Act. Upon (i) provision of such satisfactory evidence, or (ii) notification by the Company to the Trustee and the Registrar of the sale or exchange of such Notes pursuant to a registration statement that is effective at the time of such sale, the Trustee, at the written direction of the Company, shall authenticate and deliver a Note that does not bear the Legend. If the Legend is removed from the face of a Note and the Note is subsequently held by an Affiliate of the Company, the Legend shall be reinstated.
The Trustee and the Registrar shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Supplemental Indenture or under applicable law with respect to any transfer of any interest in any Note (including transfers between or among the Depositary’s participants or beneficial owners of interest in any Global Note) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Supplemental Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.
SECTION 209 Global Notes.
(a) Notwithstanding any other provisions of this Supplemental Indenture or the Notes, (A) transfers of a Global Note, in whole or in part, shall be made only in accordance with Section 2.07 of the Indenture and Sections 208 and 209(a)(i) below, (B) transfer of a beneficial interest in a Global Note for a Certificated Note shall comply with Section 2.07 of the Indenture and Section 209(a)(ii) below, and (C) transfers of a Certificated Note shall comply with Section 2.07 of the Indenture and Sections 209(a)(iii) and (iv) below.
(i) Transfer of Global Note. A Global Note may not be transferred, in whole or in part, to any Person other than the Depositary or a nominee thereof, and no such transfer to any such other Person may be registered; provided that this clause (i) shall not prohibit any transfer of a Note that is issued in exchange for a Global Note but is not itself a Global Note. No transfer of a Note to any Person shall be effective under the Indenture or the Notes unless and until such Note has been registered in the name of such Person. Nothing in this Section 209(a)(i) shall prohibit or render ineffective any transfer of a beneficial interest in a Global Note effected in accordance with the other provisions of this Section 209(a).
(ii) Restrictions on Transfer of a Beneficial Interest in a Global Note for a Certificated Note. A beneficial interest in a Global Note may not be exchanged for a Certificated Note except upon satisfaction of the requirements set forth below. Upon receipt by the Trustee of a request for transfer of a beneficial interest in a Global Note in accordance with Applicable Procedures for a Certificated Note in the form satisfactory to the Trustee, together with:
(a) so long as the Notes are Restricted Securities, certification, in the form set forth in Exhibit B-1 attached hereto, and, if requested by the Company or the Registrar, certification in the form set forth in Exhibit B-2 attached hereto, that such beneficial interest in the Global Note is being transferred to an Institutional Accredited Investor;
(b) written instructions to the Trustee to make, or direct the Registrar to make, an adjustment on its books and records with respect to such Global Note to reflect a decrease in the aggregate principal amount of the Notes represented by the Global Note, such instructions to contain information regarding the Depositary account to be credited with such decrease; and
(c) if the Company or Registrar so requests, an opinion of counsel or other evidence reasonably satisfactory to them as to compliance with the restrictions set forth in the Legend,
then the Trustee shall cause, or direct the Registrar to cause, in accordance with the standing instructions and procedures existing between the Depositary and the Registrar, the aggregate principal amount of Notes represented by the Global Note to be decreased by the aggregate principal amount of the Certificated Note to be issued, shall issue such Certificated Note and shall debit or cause to be debited to the account of the Person specified in such instructions a beneficial interest in the Global Note equal to the principal amount of the Certificated Note so issued.
(iii) Transfer and Exchange of Certificated Notes. When Certificated Notes are presented to the Registrar with a request:
(x) to register the transfer of such Certificated Notes; or
(y) to exchange such Certificated Notes for an equal principal amount of Certificated Notes of other authorized denominations,
the Registrar shall register the transfer or make the exchange as requested if its reasonable requirements for such transaction are met; provided, however, that the Certificated Notes surrendered for transfer or exchange:
(a) shall be duly endorsed or accompanied by a written instrument of transfer in form reasonably satisfactory to the Company and the Registrar, duly executed by the Holder thereof or his attorney duly authorized in writing; and
(b) so long as such Notes are Restricted Notes, such Notes are being transferred or exchanged pursuant to clause (A), (B) or (C) below, and are accompanied by the following additional information and documents, as applicable:
(A) if such Certificated Notes are being delivered to the Registrar by a Holder for registration in the name of such Holder, without transfer, a certification from such Holder to that effect; or
(B) if such Certificated Notes are being transferred to the Company, a certification to that effect; or
(C) if such Certificated Notes are being transferred pursuant to an exemption from registration, (i) a certification to that effect (in the form set forth in Exhibit B-1 and 8-2, if applicable) and (ii) if the Company or Registrar so requests, an opinion of counsel or other evidence reasonably satisfactory to them as to the compliance with the restrictions set forth in the Legend.
(iv) Restrictions on Transfer of a Certificated Note for a Beneficial Interest in a Global Note. A Certificated Note may not be exchanged for a beneficial interest in a Global Note except upon satisfaction of the requirements set forth below.
Upon receipt by the Trustee of a Certificated Note, duly endorsed or accompanied by appropriate instruments of transfer, in form satisfactory to the Trustee, together with:
(a) so long as the Notes are Restricted Notes, certification, in the form set forth in Exhibit B-1, that such Certificated Note is being transferred to a Qualified Institutional Buyer in accordance with Rule 144A; and
(b) written instructions directing the Trustee to make, or to direct the Registrar to make, an adjustment on its books and records with respect to such Global Note to reflect an increase in the aggregate principal amount of the Notes represented by the Global Note, such instructions to contain information regarding the Depositary account to be credited with such increase,
then the Trustee shall cancel such Certificated Note and cause, or direct the Registrar to cause, in accordance with the standing instructions and procedures existing between the Depositary and the Registrar, the aggregate principal amount of Notes represented by the Global Note to be increased by the aggregate principal amount of the Certificated Note to be exchanged, and shall credit or cause to be credited to the account of the Person specified in such instructions a beneficial interest in the Global Note equal to the principal amount of the Certificated Note so cancelled. If no Global Notes are then outstanding, the Company shall issue and the Trustee shall authenticate, upon receipt of a Company Order, a new Global Note in the appropriate principal amount.
(b) Subject to the succeeding paragraph, every Note shall be subject to the restrictions on transfer provided in the Legend including the delivery of an opinion of counsel, if so provided. Whenever any Restricted Note is presented or ,surrendered for registration of transfer or for exchange for a Note registered in a name other than that of the Holder, such Note must be accompanied by a certificate in substantially the form set forth in Exhibit B-1, dated the date of such surrender and signed by the Holder of such Note, as to compliance with such restrictions on transfer. The Registrar shall not be required to accept for such registration of transfer or exchange any Note not so accompanied by a properly completed certificate.
(c) The restrictions imposed by the Legend upon the transferability of any Note shall cease and terminate when such Note has been sold or exchanged pursuant to an effective registration statement under the Securities Act or may be transferred in compliance with Rule 144 under the Securities Act (or any successor provision thereto). Any Note as to which such restrictions on transfer shall have expired in accordance with their terms or shall have terminated may, upon a surrender of such Note for exchange to the Registrar in accordance with the provisions of this Section 209 (accompanied, in the event that such restrictions on transfer have terminated by reason of a transfer in compliance with Rule 144 or any successor provision, by an opinion of counsel having substantial experience in practice under the Securities Act and otherwise reasonably acceptable to the Company, addressed to the Company, the Trustee and the Registrar and in form acceptable to the Company, to the effect that the transfer of such Note has been made in compliance with Rule 144 or such successor provision), be exchanged for a new Note, of like tenor and aggregate principal amount, which shall not bear the restrictive Legend. The Company shall inform the Trustee of the effective date of any registration statement registering the Notes under the Securities Act. The Trustee shall not be liable for any action taken or omitted to be taken by it in good faith in accordance with the aforementioned opinion of counsel.
(d) As used in the preceding two paragraphs of this Section 209, the term “transfer” encompasses any sale, pledge, transfer, hypothecation or other disposition of any Note.
(e) The provisions of clauses (i), (ii), (iii), (iv), and (v) below shall apply only to Global Notes:
(i) Notwithstanding any other provisions of the Indenture or the Notes, except as provided in Section 209(a)(ii), a Global Note shall not be exchanged in whole or in part for a Note registered in the name of any Person other than the Depositary or one or more nominees thereof, provided that a Global Note may be exchanged for Notes registered in the names of any Person designated by the Depositary in the event that (i) the Depositary has notified the Company that it is unwilling or unable to continue as depositary for such Global Note or the Depositary has ceased to be a “clearing agency” registered under the Exchange Act, and a successor Depositary is not appointed by the Company within 90 days or (ii) an Event of Default has occurred and is continuing with respect to the Notes. Any Global Note exchanged pursuant to clause (i) above shall be so exchanged in whole and not in part, and any Global Note exchanged pursuant to clause (ii) above may be exchanged in whole or from time to time in part as directed by the Depositary. In the event that Certificated Notes are issued in respect of beneficial interests in a Regulation S Global Note at any time prior to one year after the date of this Supplemental Indenture (other than in a transaction subject to Rule 144A), the Company shall as promptly as practicable, institute procedures, including appropriate certifications, reasonably designed to ensure that any transfer of such Certificated Notes prior to the end of such one year is made only in accordance with the provisions of Regulation S, pursuant to registration under the Securities Act or pursuant to an exemption from such registration.
(ii) Notes issued in exchange for a Global Note or any portion thereof shall be issued in definitive, fully registered form, without interest coupons, shall have an aggregate principal amount equal to that of such Global Note or portion thereof to be so exchanged, shall be registered in such names and be in such authorized denominations as the Depositary shall designate and shall bear the Legend. Any Global Note to be exchanged in whole shall be surrendered by the Depositary to the Trustee, as Registrar. With regard to any Global Note to be exchanged in part, either such Global Note shall be so surrendered for exchange or, if the Trustee is acting as custodian for the Depositary or its nominee with respect to such Global Note, the principal amount thereof shall be reduced, by an amount equal to the portion thereof to be so exchanged, by means of an appropriate adjustment made on the records of the Trustee. Upon any such surrender or adjustment, the Trustee shall authenticate and deliver the Note issuable on such exchange to or upon the order of the Depositary or an authorized representative thereof.
(iii) Subject to the provisions of clause (v) below, the registered Holder may grant proxies and otherwise authorize any Person, including Agent Members (as defined below) and Persons that may hold interests through Agent Members, to take any action which a Holder is entitled to take under the Indenture or the Notes.
(iv) In the event of the occurrence of any of the events specified in clause (i) above, the Company will promptly make available to the Trustee a reasonable supply of Certificated Notes.
(v) Neither any members of, or participants in, the Depositary (collectively, the “Agent Members”) nor any other Persons on whose behalf Agent Members may act shall have any rights under the Indenture with respect to any Global Note registered in the name of the Depositary or any nominee thereof, or under any such Global Note, and the Depositary or such nominee, as the case may be, may be treated by the Company, the Trustee and any agent of the Company or the Trustee as the absolute owner and holder of such Global Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee or any agent of the Company or the Trustee from giving effect to any written certification, proxy or other authorization furnished by the Depositary or such nominee, as the case may be, or impair, as between the Depositary, its Agent Members and any other Person on whose behalf an Agent Member may act, the operation of customary practices of such Persons governing the exercise of the rights of a Holder of any Note.
SECTION 210 Event of Default. For purposes of this Ninth Supplemental Indenture and the Notes issued hereunder, Section 6.01 of the Original Indenture is hereby amended by deleting the clause immediately following subsection (i) in the first sentence of such Section and inserting in its place the following:
“then and in each and every case that an Event of Default described in clause (a), (b), (c), (d), (e), (f), (g) (with respect to Restricted Subsidiaries only), (h) (with respect to Restricted Subsidiaries only) or (i) with respect to Debt Securities of that series at the time Outstanding occurs and is continuing, unless the principal of and interest on all the Debt Securities of that series shall have already become due and payable, either the Trustee or the Holders of not less than 25% in aggregate principal amount of the Debt Securities of that series then Outstanding hereunder, by notice in writing to the Company (and to the Trustee if given by Holders), may declare the principal of (or, if the Debt Securities of that series are Original Issue Discount Debt Securities, such portion of the principal amount as may be specified in the terms of that series) and interest on all the Debt Securities of that series to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything in this Indenture or in the Debt Securities or Coupons appertaining thereto of that series contained to the contrary notwithstanding.”
ARTICLE 3
REPORTS BY THE COMPANY
So long as any of the Debt Securities are “restricted securities” within the meaning of Rule 144(a)(3) under the Securities Act, the Company will, during any period in which it is not subject to Sections 13 or 15(d) of the Exchange Act or it is not exempt from such reporting requirements pursuant to and in compliance with Rule l 2g3-2(b) under the Exchange Act, provide to each Holder of Notes and to each prospective purchaser (as designated by such Holder) of Notes, upon the request of such Holder or prospective purchaser, any information required to be provided by Rule 144A(d)(4) under the Securities Act.
ARTICLE 4
MISCELLANEOUS PROVISIONS
The Trustee makes no undertaking or representations in respect of, and shall not be responsible in any manner whatsoever for and in respect of, the validity or sufficiency of this Supplemental Indenture or the proper authorization or the due execution hereof by the Company or for or in respect of the recitals and statements contained herein, all of which recitals and statements are made solely by the Company.
The provisions of Article XI of the Original Indenture relating to defeasance shall apply to the Notes.
Except as expressly amended hereby, the Original Indenture shall continue in full force and effect in accordance with the provisions thereof, and the Original Indenture is in all respects hereby ratified and confirmed. This Supplemental Indenture and all its provisions shall be deemed a part of the Original Indenture in the manner and to the extent herein and therein provided.
This Supplemental Indenture shall be governed by, and construed in accordance with, the laws of the State of New York.
This Supplemental Indenture may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the Parties have executed this Ninth Supplemental Indenture by their duly authorized signatories as of the date first above written.
| COX COMMUNICATIONS, INC. | |||
| By: | /s/ Susan W. Coker | ||
| Name: | Susan W. Coker | ||
| Title: | Vice President and Treasurer | ||
| By: | /s/ Mark E. Bowser | ||
| Name: | Mark E. Bowser | ||
| Title: | Senior Vice President and Chief Financial Officer | ||
Ninth Supplemental Indenture Signature Page
| THE BANK OF NEW YORK TRUST COMPANY, N.A., as Trustee | |||
| By: | /s/ Karen Z. Ke1ly | ||
| Name: | Karen Z. Ke1ly | ||
| Title: | Vice President | ||
Ninth Supplemental Indenture Signature Page
EXHIBIT A-1
[FORM OF FACE OF SECURITY]
[TRANSFER RESTRICTED LEGEND]
[THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933 (THE “SECURITIES ACT”) AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED PRIOR TO THE END OF THE PERIOD (THE “RESALE RESTRICTION PERIOD”) FROM THE DATE OF ORIGINAL ISSUANCE UNTIL (A) THE DATE THAT IS ONE YEAR AFTER THE LATER OF (X) THE DATE OF THE ORIGINAL ISSUANCE OF THE NOTES OR (Y) THE LAST DAY ON WHICH THE ISSUER OR ANY OF ITS AFFILIATES WAS THE OWNER OF THE NOTES, AND (B) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAWS, EXCEPT (1) TO THE ISSUER, (2) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (3) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (4) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT (IF AVAILABLE), (5) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS AN INSTITUTIONAL ACCREDITED INVESTOR ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF THE SECURITIES OF $100,000, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (6) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (4) OR (5) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION PERIOD.]
[GLOBAL NOTES LEGEND]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON 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.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS, IN WHOLE BUT NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN ARTICLE TWO OF THE NINTH SUPPLEMENTAL INDENTURE REFERRED TO ON THE REVERSE HEREOF.]
| No. R | PRINCIPAL AMOUNT |
| CUSIP No. | $ |
COX COMMUNICATIONS, INC.
6.25% Notes due 2018
COX COMMUNICATIONS, INC., a Delaware corporation (hereinafter called the “Company,” which term includes any successor corporation under the Indenture referred to below), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of [ ] ($ ) on June 1, 2018 (the “Maturity Date”), unless previously redeemed, and to pay interest thereon from June 5, 2008 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, payable semiannually on June 1 and December 1 in each year (each, an “Interest Payment Date”), commencing December 1, 2008, at the rate of 6.25% per annum, until the principal hereof is paid or duly made available for payment. Interest shall be computed on the basis of a 360-day year of twelve 30-day months. The interest so payable and punctually paid or duly provided for on any Interest Payment Date will, as provided in the Indenture, be paid to the Person in whose name this Note (or one or more predecessor securities) is registered at the close of business on the regular record date for such interest, which shall be May 15 or November 15 (whether or not a Business Day), as the case may be, immediately preceding such Interest Payment Date. Any such interest which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date shall forthwith cease to be payable to the registered Holder hereof on the relevant regular record date by virtue of having been such Holder, and may be paid to the Person in whose name this Note (or one or more predecessor securities) is registered at the close of business on a subsequent special record date (which shall be not more than 15 days and not less than 10 days before the payment date) for the payment of such defaulted interest to be fixed by the Trustee, notice whereof shall be given to the Holders of Notes of this series not less than 10 days prior to such special record date, or may be paid at any time in any other lawful manner, all as more fully provided in such Indenture. If any Interest Payment Date, Redemption Date or the Maturity Date falls on a day that is not a Business Day, the required payment shall be made on the next Business Day as if it were made on the date such payment was due and no interest shall accrue on the amount so payable for the period from and after such Interest Payment Date, Redemption Date or the Maturity Date, as the case may be, to such next Business Day. Payments of principal, premium, if any, and interest hereunder shall be made in such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts and shall be made immediately available to the Holder (as defined below) hereof.
This Note is one of the duly authorized series of Debt Securities of the Company, designated as the Company’s “6.25% Notes due 2018” (the “Notes”), initially limited to an aggregate principal amount of $750,000,000, all issued or to be issued under and pursuant to an Indenture dated as of June 27, 1995 (the “Original Indenture”), as supplemented by the Ninth Supplemental Indenture dated as of June 5, 2008 (the “Ninth Supplemental Indenture”, and together with the Original Indenture, the “Indenture”), duly executed and delivered by the Company to The Bank of New York Trust Company, N.A, as trustee (hereinafter referred to as the “Trustee”), to which Indenture and all indentures supplemental thereto reference is hereby made for a description of the rights, limitation of rights, obligations, duties and immunities thereunder of the Trustee, the Company and the Holders (the words “Holders” or “Holder” meaning the registered holders or registered holder of the Notes).
This Note will be redeemable at the option of the Company, in whole at any time or in part from time to time, at a Redemption Price equal to the greater of (i) 100% of the principal amount of this Note to be redeemed or (ii) the sum, as determined by the Quotation Agent, of the present values of the principal amount of this Note to be redeemed and the remaining scheduled payments of interest on the principal amount of this Note to be redeemed (exclusive of interest accrued to the Redemption Date), in each case, discounted from their respective scheduled payment dates to the Redemption Date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as defined below) plus 35 basis points, plus accrued and unpaid interest thereon to the Redemption Date.
“Comparable Treasury Issue” means, with respect to this Note subject to redemption, the United States Treasury security selected by the Quotation Agent as having an actual or interpolated maturity comparable to the remaining life of this Note to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity with the remaining life of this Note to be redeemed.
“Comparable Treasury Price” means, with respect to any Redemption Date, the average of the Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and lowest of such Reference Treasury Dealer Quotations, or, if the Trustee obtains fewer than four such Reference Treasury Dealer Quotations, the average of all such quotations.
“Quotation Agent” means a Reference Treasury Dealer appointed by the Company.
“Reference Treasury Dealer” means with respect to this Note subject to redemption, J.P. Morgan Securities Inc., Citigroup Global Markets Inc. and their respective successors, one other primary United States Government securities dealer in New York City selected by Wachovia Capital Markets, LLC or its successor, and two other primary United States Government securities dealers in New York City (each, a “Primary Treasury Dealer”) selected by the Company. If J.P. Morgan Securities Inc., Citigroup Global Markets Inc. or a primary United States Government securities dealer in New York City selected by Wachovia Capital Markets, LLC shall cease to be a Primary Treasury Dealer, the Company will substitute another Primary Treasury Dealer.
“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and any Redemption Date, the average, as determined by the Trustee, of the bid and asked prices for the Comparable Treasury Issue, expressed in each case as a percentage of its principal amount, quoted in writing to the Trustee by such Reference Treasury Dealer at 3:30 p.m., New York City time, on the third Business Day preceding such Redemption Date.
“Treasury Rate” means, with respect to any Redemption Date applicable to this Note, the rate per annum equal to the semiannual yield to maturity or interpolated (on a day-count basis) of the Comparable Treasury Issue, calculated on the third Business Day preceding such Redemption Date using a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such Redemption Date.
This Note is not subject to any sinking fund.
Notice of any redemption will be mailed at least 30 days but not more than 60 days before the Redemption Date to the Holder hereof at its registered address.
If money sufficient to pay the Redemption Price with respect to and accrued and unpaid interest on the principal amount of this Note to be redeemed on the Redemption Date is deposited with the Trustee or Paying Agent on or before the Redemption Date and certain other conditions specified in the Indenture are satisfied, then on or after such date, interest will cease to accrue on the principal amount of this Note called for redemption.
Except as provided above, this Note is not redeemable by the Company prior to maturity and is not subject to any sinking fund.
In case an Event of Default shall occur and be continuing, the principal hereof may be declared, and upon such declaration shall become, due and payable, in the manner, with the effect and subject to the conditions provided in the Indenture.
Subject to certain exceptions set forth in the Indenture, (i) the Indenture may be amended with respect to the Notes with the consent of the Holders of at least a majority in principal amount outstanding of the Notes and (ii) any default or noncompliance with any provisions applicable to the Notes may be waived with the consent of the Holders of a majority in principal amount outstanding of the Notes. Subject to certain exceptions set forth in the Indenture, without the consent of any Holder, the Company and the Trustee may amend the Indenture or the Notes to cure any ambiguity, defect or inconsistency, or to provide for the assumption by a successor corporation of the obligations of the Company under the Indenture, or to provide for uncertificated Notes in addition to or in place of certificated Notes, or to add additional covenants or surrender any right or power conferred on the Company, or to establish the form or terms of the Notes of any series, or to appoint a successor Trustee or provide for administration of the trust by more than one Trustee, or to add to, delete from or revise the conditions, limitations, and restrictions on the authorized amount, terms or purposes of issue, authentication and delivery of the Notes or to add any additional event of default, or to modify the provisions of the Indenture as shall be necessary to facilitate the defeasance and discharge of the Notes as shall not adversely affect any Holders, or to secure the Notes, or to make provisions respect to exchange rights of Holders, or to make any change that does not adversely affect the rights of any Holder.
Subject to certain conditions, the Company at any time may terminate some or all of its obligations under the Notes and the Indenture if the Company deposits with the Trustee money or Government Obligations for the payment of principal, premium, if any, and interest on the Notes to the Maturity Date.
If money for the payment of principal or interest remains unclaimed for two years, the Trustee or Paying Agent shall pay the money back to the Company at its request unless an abandoned property law designates another Person. After any such payment, Holders entitled to the money must look only to the Company and not to the Trustee for payment.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and premium, if any, and interest on this Note at the place, at the respective times, at the rate, and in the coin or currency herein prescribed.
No director, officer, employee or stockholder, as such, of the Company shall have any liability for any obligations of the Company under this Note or the Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. Each Holder, by accepting this Note, waives and releases all such liability. The waiver and release are part of the consideration for the issue of this Note.
This Note and the Indenture shall be governed by and construed in accordance with the law of the State of New York applicable to agreements made or instruments entered into and, in each case, performed in said state.
Ownership of this Note shall be proved by the register for the Notes kept by the Registrar. The Company, the Trustee and any agent of the Company may treat the Person in whose name a Note is registered as the absolute owner thereof for all purposes.
Pursuant to a recommendation promulgated by the Committee on Uniform Note Identification Procedures, the Company has caused a CUSIP number to be printed on this Note and has directed the Trustee to use the CUSIP number as a convenience to Holders. No representation is made as to the correctness of such numbers and reliance may be placed only on the other identification numbers printed on this Note.
Terms used herein without definition that are defined in the Indenture shall have the meanings assigned to them in the Indenture.
Unless the Certificate of Authentication hereon has been executed by the Trustee under the Indenture referred to herein by the manual signature of one of its authorized officers, or on behalf of the Trustee by the manual signature of an authorized officer of the Trustee’s authenticating agent, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed, manually or by facsimile.
Date: June , 2008
| COX COMMUNICATIONS, INC. | |||
| By: | |||
| Name: | Susan W. Coker | ||
| Title: | Vice President and Treasurer | ||
| By: | |||
| Name: | Mark F. Bowser | ||
| Title: | Senior Vice President and Chief Financial Officer | ||
CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated therein referred to in the within-mentioned Indenture.
| THE BANK OF NEW YORK TRUST COMPANY, N.A. | ||
| as Trustee | ||
| By: | ||
| Authorized Signatory | ||
Dated: June , 2008
ASSIGNMENT FORM
| FOR VALUE RECEIVED, the undersigned hereby sell(s) assign(s) and transfer(s) unto | ||
| Please insert social security number 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 attorney to transfer said Note of Cox Communications, Inc. on the books of Cox Communications, Inc. 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 this Note in every particular without alteration or enlargement or any change whatsoever. The Signature must be guaranteed by an “eligible guarantor institution meeting the requirements of the Registrar, which requirements include memberships or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934. | ||
EXHIBIT A-2
[FORM OF FACE OF SECURITY]
[TRANSFER RESTRICTED LEGEND]
[THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933 (THE “SECURITIES ACT”) AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED PRIOR TO THE END OF THE PERIOD (THE “RESALE RESTRICTION PERIOD”) FROM THE DATE OF ORIGINAL ISSUANCE UNTIL (A) THE DATE THAT IS ONE YEAR AFTER THE LATER OF (X) THE DATE OF THE ORIGINAL ISSUANCE OF THE NOTES OR (Y) THE LAST DAY ON WHICH THE ISSUER OR ANY OF ITS AFFILIATES WAS THE OWNER OF THE NOTES, AND (B) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAWS, EXCEPT (1) TO THE ISSUER, (2) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (3) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATIONS UNDER THE SECURITIES ACT, (4) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT (IF AVAILABLE), (5) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS AN INSTITUTIONAL ACCREDITED INVESTOR ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF THE SECURITIES OF $100,000, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (6) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (4) OR (5) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION PERIOD.]
[GLOBAL NOTES LEGEND]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON 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.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS, IN WHOLE BUT NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN ARTICLE TWO OF THE NINTH SUPPLEMENTAL INDENTURE REFERRED TO ON THE REVERSE HEREOF.]
| No. R | PRINCIPAL AMOUNT |
| CUSIP No. | $ |
COX COMMUNICATIONS, INC.
6.95% Notes due 2038
COX COMMUNICATIONS, INC., a Delaware corporation (hereinafter called the “Company,” which term includes any successor corporation under the Indenture referred to below), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of [ ] ($[ ]) on June 1, 2038 (the “Maturity Date”), unless previously redeemed, and to pay interest thereon from June 5, 2008 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, payable semiannually on June 1 and December 1 in each year (each, an “Interest Payment Date”), commencing December 1, 2008, at the rate of 6.95% per annum, until the principal hereof is paid or duly made available for payment. Interest shall be computed on the basis of a 360-day year of twelve 30-day months. The interest so payable and punctually paid or duly provided for on any Interest Payment Date will, as provided in the Indenture, be paid to the Person in whose name this Note (or one or more predecessor securities) is registered at the close of business on the regular record date for such interest, which shall be May 15 or November 15 (whether or not a Business Day), as the case may be, immediately preceding such Interest Payment Date. Any such interest which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date shall forthwith cease to be payable to the registered Holder hereof on the relevant regular record date by virtue of having been such Holder, and may be paid to the Person in whose name this Note (or one or more predecessor securities) is registered at the close of business on a subsequent special record date (which shall be not more than 15 days and not less than 10 days before the payment date) for the payment of such defaulted interest to be fixed by the Trustee, notice whereof shall be given to the Holders of Notes of this series not less than 10 days prior to such special record date, or may be paid at any time in any other lawful manner, all as more fully provided in such Indenture. If any Interest Payment Date, Redemption Date or the Maturity Date falls on a day that is not a Business Day, the required payment shall be made on the next Business Day as if it were made on the date such payment was due and no interest shall accrue on the amount so payable for the period from and after such Interest Payment Date, Redemption Date or the Maturity Date, as the case may be, to such next Business Day. Payments of principal, premium, if any, and interest hereunder shall be made in such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts and shall be made immediately available to the Holder (as defined below) hereof.
This Note is one of the duly authorized series of Debt Securities of the Company, designated as the Company’s “6.95% Notes due 2038” (the “Notes”), initially limited to an aggregate principal amount of $250,000,000, all issued or to be issued under and pursuant to an Indenture dated as of June 27, 1995 (the “Original Indenture”), as supplemented by the Ninth Supplemental Indenture dated as of June 5, 2008 (the “Ninth Supplemental Indenture,” and together with the Original Indenture, the “Indenture”), duly executed and delivered by the Company to The Bank of New York Trust Company, N.A, as trustee (hereinafter referred to as the “Trustee”), to which Indenture and all indentures supplemental thereto reference is hereby made for a description of the rights, limitation of rights, obligations, duties and immunities thereunder of the Trustee, the Company and the Holders (the words “Holders” or “Holder” meaning the registered holders or registered holder of the Notes).
This Note will be redeemable at the option of the Company, in whole at any time or in part from time to time, at a Redemption Price equal to the greater of (i) 100% of the principal amount of this Note to be redeemed or (ii) the sum, as determined by the Quotation Agent, of the present values of the principal amount of this Note to be redeemed and the remaining scheduled payments of interest on the principal amount of this Note to be redeemed (exclusive of interest accrued to the Redemption Date), in each case, discounted from their respective scheduled payment dates to the Redemption Date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as defined below) plus 35 basis points, plus accrued and unpaid interest thereon to the Redemption Date.
“Comparable Treasury Issue” means, with respect to this Note subject to redemption, the United States Treasury security selected by the Quotation Agent as having an actual or interpolated maturity comparable to the remaining life of this Note to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity with the remaining life of this Note to be redeemed.
“Comparable Treasury Price” means, with respect to any Redemption Date, the average of the Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and lowest of such Reference Treasury Dealer Quotations, or, if the Trustee obtains fewer than four such Reference Treasury Dealer Quotations, the average of all such quotations.
“Quotation Agent” means a Reference Treasury Dealer appointed by the Company.
“Reference Treasury Dealer” means, with respect to this Note subject to redemption, J.P. Morgan Securities Inc., Barclays Capital Inc., Deutsche Bank Securities Inc., Lehman Brothers Inc. and their respective successors, and one other primary United States Government securities dealer in New York City (each, a “Primary Treasury Dealer”) selected by the Company. If J.P. Morgan Securities Inc., Barclays Capital Inc., Deutsche Bank Securities Inc. or Lehman Brothers Inc. shall cease to be a Primary Treasury Dealer, the Company will substitute another Primary Treasury Dealer.
“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and any Redemption Date, the average, as determined by the Trustee, of the bid and asked prices for the Comparable Treasury Issue, expressed in each case as a percentage of its principal amount, quoted in writing to the Trustee by such Reference Treasury Dealer at 3:30 p.m., New York City time, on the third Business Day preceding such Redemption Date.
“Treasury Rate” means, with respect to any Redemption Date applicable to this Note, the rate per annum equal to the semiannual yield to maturity or interpolated (on a day-count basis) of the Comparable Treasury Issue, calculated on the third Business Day preceding such Redemption Date using a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such Redemption Date.
This Note is not subject to any sinking fund.
Notice of any redemption will be mailed at least 30 days but not more than 60 days before the Redemption Date to the Holder hereof at its registered address.
If money sufficient to pay the Redemption Price with respect to and accrued and unpaid interest on the principal amount of this Note to be redeemed on the Redemption Date is deposited with the Trustee or Paying Agent on or before the Redemption Date and certain other conditions specified in the Indenture are satisfied, then on or after such date, interest will cease to accrue on the principal amount of this Note called for redemption.
Except as provided above, this Note is not redeemable by the Company prior to maturity and is not subject to any sinking fund.
In case an Event of Default shall occur and be continuing, the principal hereof may be declared, and upon such declaration shall become, due and payable, in the manner, with the effect and subject to the conditions provided in the Indenture.
Subject to certain exceptions set forth in the Indenture, (i) the Indenture may be amended with respect to the Notes with the consent of the Holders of at least a majority in principal amount outstanding of the Notes and (ii) any default or noncompliance with any provisions applicable to the Notes may be waived with the consent of the Holders of a majority in principal amount outstanding of the Notes. Subject to certain exceptions set forth in the Indenture, without the consent of any Holder, the Company and the Trustee may amend the Indenture or the Notes to cure any ambiguity, defect or inconsistency, or to provide for the assumption by a successor corporation of the obligations of the Company under the Indenture, or to provide for uncertificated Notes in addition to or in place of certificated Notes, or to add additional covenants or surrender any right or power conferred on the Company, or to establish the form or terms of the Notes of any series, or to appoint a successor Trustee or provide for administration of the trust by more than one Trustee, or to add to, delete from or revise the conditions, limitations, and restrictions on the authorized amount, terms or purposes of issue, authentication and delivery of the Notes or to add any additional event of default, or to modify the provisions of the Indenture as shall be necessary to facilitate the defeasance and discharge of the Notes as shall not adversely affect any Holders, or to secure the Notes, or to make provisions respect to exchange rights of Holders, or to make any change that does not adversely affect the rights of any Holder.
Subject to certain conditions, the Company at any time may terminate some or all of its obligations under the Notes and the Indenture if the Company deposits with the Trustee money or Government Obligations for the payment of principal, premium, if any, and interest on the Notes to the Maturity Date.
If money for the payment of principal or interest remains unclaimed for two years, the Trustee or Paying Agent shall pay the money back to the Company at its request unless an abandoned property law designates another Person. After any such payment, Holders entitled to the money must look only to the Company and not to the Trustee for payment.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and premium, if any, and interest on this Note at the place, at the respective times, at the rate, and in the coin or currency herein prescribed.
No director, officer, employee or stockholder, as such, of the Company shall have any liability for any obligations of the Company under this Note or the Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. Each Holder, by accepting this Note, waives and releases all such liability. The waiver and release are part of the consideration for the issue of this Note.
This Note and the Indenture shall be governed by and construed in accordance with the law of the State of New York applicable to agreements made or instruments entered into and, in each case, performed in said state.
Ownership of this Note shall be proved by the register for the Notes kept by the Registrar. The Company, the Trustee and any agent of the Company may treat the Person in whose name a Note is registered as the absolute owner thereof for all purposes.
Pursuant to a recommendation promulgated by the Committee on Uniform Note Identification Procedures, the Company has caused a CUSIP number to be printed on this Note and has directed the Trustee to use the CUSIP number as a convenience to Holders. No representation is made as to the correctness of such numbers and reliance may be placed only on the other identification numbers printed on this Note.
Terms used herein without definition that are defined in the Indenture shall have the meanings assigned to them in the Indenture.
Unless the Certificate of Authentication hereon has been executed by the Trustee under the Indenture referred to herein by the manual signature of one of its authorized officers, or on behalf of the Trustee by the manual signature of an authorized officer of the Trustee’s authenticating agent, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed, manually or by facsimile.
Date: June , 2008
| COX COMMUNICATIONS, INC. | |||
| By: | |||
| Name: | Susan W. Coker | ||
| Title: | Vice President and Treasurer | ||
| By: | |||
| Name: | Mark F. Bowser | ||
| Title: | Senior Vice President and Chief Financial Officer | ||
CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated therein referred to in the within-mentioned Indenture.
| THE BANK OF NEW YORK TRUST COMPANY, N.A. | ||
| as Trustee | ||
| By: | ||
| Authorized Signatory | ||
| Dated: June , 2008 | ||
ASSIGNMENT FORM
| FOR VALUE RECEIVED, the undersigned hereby sell(s) assign(s) and transfer(s) unto | ||
| Please insert social security number 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 attorney to transfer said Note of Cox Communications, Inc. on the books of Cox Communications, Inc. 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 this Note in every particular without alteration or enlargement or any change whatsoever. The Signature must be guaranteed by an “eligible guarantor institution meeting the requirements of the Registrar, which requirements include memberships or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934. | ||
EXHIBIT B-1
Transfer Certificate
In connection with a transfer of any of the $ principal amount of the Notes due 20 (the “Notes”) of Cox Communications, Inc. (the “Company”) within the period prior to the expiration of the holding period applicable to the sales thereof under Rule 144 under the Securities Act of 1933, as amended (the “Securities Act”) (or any successor provision), the undersigned registered owner of this Note hereby certifies with respect to $ principal amount of the above-captioned securities presented or surrendered on the date hereof (the “Surrendered Notes”) for registration of transfer, or for exchange where the securities deliverable upon such exchange are to be registered in a name other than that of the undersigned registered owner (each such transaction being a “transfer”), that such transfer complies with the restrictive legend set forth on the face of the Surrendered Notes for the reason checked below:
| ¨ | A transfer of the Surrendered Notes is made to the Company or any subsidiaries; or | |
| ¨ | The transfer of the Surrendered Notes complies with Rule 144A under the Securities Act; or | |
| ¨ | The transfer of the Surrendered Notes is to an institutional accredited investor, as described in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act; or | |
| ¨ | The transfer of the Surrendered Notes is pursuant to an effective registration statement under the Securities Act, or | |
| ¨ | The transfer of the Surrendered Notes is pursuant to an offshore transaction in accordance with Rule 904 of Regulation S under the Securities Act; or | |
| ¨ | The transfer of the Surrendered Notes is pursuant to another available exemption from the registration requirement of the Securities Act. |
and unless the box below is checked, the undersigned confirms that, to the undersigned’s knowledge, such Notes are not being transferred to an “affiliate” of the Company as defined in Rule 144 under the Securities Act (an “Affiliate”).
| ¨ | The transferee is an Affiliate of the Company. |
| DATE: | ||||
| Signature(s) | ||||
(If the registered owner is a
corporation, partnership or
fiduciary, the title of the Person signing on behalf of
such registered owner must be stated.)
B-1-1
EXHIBIT B-2
Form of Letter to be Delivered by Accredited Investors
Cox Communications, Inc.
1400 Lake Hearn Drive, NE
Atlanta, Georgia 30319
Attention: Treasurer
The Bank of New York Trust Company, N.A., as Registrar
100 Ashford Center North, Suite 520
Atlanta, Georgia 30338
Attention: Corporate Trust Office
Dear Sirs:
We are delivering this letter in connection with the proposed transfer of $ principal amount of the Notes due 20 (the “Notes”) of Cox Communications, Inc. (the “Company”).
We hereby confirm that:
(i) we are an “accredited investor” within the meaning of Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act of 1933, as amended (the “Securities Act”), or an entity in which all of the equity owners are accredited investors within the meaning of Rule 501(a)(1 ), (2), (3) or (7) of Regulation D under the Securities Act (an “Institutional Accredited Investor”);
(ii) (A) the purchase of Notes by us is for our own account or for the account of one or more other Institutional Accredited Investors or as fiduciary for the account of one or more trusts, each of which is an “accredited investor” within the meaning of Rule 501(a)(7) under the Securities Act and for each of which we exercise sole investment discretion or (B) we are a “bank,” within the meaning of Section 3(a)(2) of the Securities Act, or a “savings and loan association” or other institution described in Section 3(a)(5)(A) of the Securities Act that is acquiring Notes as fiduciary for the account of one or more institutions for which we exercise sole investment discretion;
(iii) we will acquire Notes having a minimum principal amount of not less than $100,000 for our own account or for any separate account for which we are acting;
(iv) we have such knowledge and experience in financial and business matters that we are capable of evaluating the merits and risks of purchasing Notes; and
(v) we are not acquiring Notes with a view to distribution thereof or with any present intention of offering or selling Notes, except as permitted below; provided that the disposition of our property and property of any accounts for which we are acting as fiduciary shall remain at all times within our control.
B-2-1
We understand that the Notes were originally offered and sold in a transaction not involving any public offering within the United States within the meaning of the Securities Act and that the Notes have not been registered under the Securities Act, and we agree, on our own behalf and on behalf of each account for which we acquire any Notes, that we will offer, sell or otherwise transfer such Notes, or any beneficial interest therein, prior to the end of the period (the “Resale Restriction Period”) from the date of original issuance until (a) the date that is one year after the later of (x) the date of the original issuance of the Notes or (y) the last day on which the Issuer or any of its Affiliates was the owner of the Notes, and (b) such later date, if any, as may be required by applicable laws only:
(1) to the Company or any subsidiary thereof, or
(2) for as long as the Notes are eligible for resale pursuant to Rule 144A, to a person we reasonably believe is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) that purchases for its own account or for the account of a qualified institutional buyer to which notice is given that the transfer is being made in reliance on Rule 144A, or
(3) to an Institutional Accredited Investor that is acquiring the Note for its own account, or for the account of such Institutional Accredited Investor for investment purposes and not with a view to, or for offer or sale in connection with, any distribution in violation of the Securities Act, or
(4) pursuant to a registration statement which has been declared effective under the Securities Act, or
(5) outside the United States to non-U.S. persons in an offshore transaction in accordance with Rule 903 or 904 of Regulation S under the Securities Act, or
(6) pursuant to another available exemption from registration under the Securities Act, including under Rule 144, if available, and, in each case, in accordance with any applicable securities laws of any State of the United States or any other applicable jurisdiction and in accordance with and subject to the legends set forth on the Notes.
We acknowledge that the Company, others and you will rely upon our confirmations, acknowledgments and agreements set forth herein, and we agree to notify you promptly in writing if any of our representations or warranties herein ceases to be accurate and complete.
THIS LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK.
| (Name of Purchaser) | ||
| By: | ||
| Name: | ||
| Title: | ||
| Address: | ||
B-2-2
Exhibit 4.9
Execution Copy
COX COMMUNICATIONS, INC.
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
as Trustee
ELEVENTH SUPPLEMENTAL INDENTURE
Dated as of February 20, 2009
Supplement to Indenture
Dated as of June 27, 1995
Creating a series of Debt Securities designated
8.375% Notes due 2039
ELEVENTH SUPPLEMENTAL INDENTURE, dated as of the 20th day of February, 2009 between COX COMMUNICATIONS, INC., a corporation existing under the laws of the State of Delaware, having its principal executive office located at 1400 Lake Hearn Drive, NE, Atlanta, Georgia 30319 (the “Company”), and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., a national banking association, having a designated office located at 900 Ashwood Parkway, Suite 425, Atlanta, Georgia 30338, as trustee (the “Trustee”);
WHEREAS, the Company has heretofore executed and delivered to the Trustee an Indenture, dated as of June 27, 1995 (the “Original Indenture” and, as amended by this Supplemental Indenture, the “Indenture”), providing for the issuance by the Company from time to time of its debentures, notes, bonds or other evidences of indebtedness (in the Original Indenture and herein called the “Debt Securities”), unlimited as to principal amount, to be issued in one or more series;
WHEREAS, the Company, in the exercise of the power and authority conferred upon and reserved to it under the provisions of the Original Indenture and pursuant to appropriate resolutions of the Board of Directors, has duly determined to make, execute and deliver to the Trustee this Supplemental Indenture to the Original Indenture in order to establish the form and terms of, and to provide for the creation and issuance of, a new series of Debt Securities designated as the “8.375% Notes due 2039” in the initial aggregate principal amount of $1,250,000,000 (the “Notes”);
WHEREAS, Section 9.01 of the Original Indenture provides, among other things, that the Company and the Trustee, at any time and from time to time, without the consent of any Holders, may enter into an indenture supplemental to the Original Indenture to establish the form or terms of Debt Securities of any series as permitted by Sections 2.01 and 2.03 of the Original Indenture;
WHEREAS, all things necessary to make the Notes, when executed by the Company and authenticated and delivered by the Trustee and issued upon the terms and subject to the conditions hereinafter and in the Original Indenture set forth against payment therefor, the valid, binding and legal obligations of the Company and to make this Supplemental Indenture a valid, binding and legal agreement of the Company, have been done;
NOW, THEREFORE, THIS ELEVENTH SUPPLEMENTAL INDENTURE WITNESSETH that, in order to establish the form and terms of the series of Debt Securities designated as the “8.375% Notes due 2039” and for and in consideration of the premises and of the covenants contained in the Original Indenture and in this Supplemental Indenture and for other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of the Notes, as follows:
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ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101 Definitions. For all purposes of the Original Indenture and this Supplemental Indenture relating to a series of Debt Securities (consisting of the Notes) created hereby, except as otherwise expressly provided or unless the context otherwise requires, the terms defined in this Article have the meanings assigned to them in this Article. Each capitalized term that is used in the Original Indenture and this Supplemental Indenture but not defined herein shall have the meaning specified in the Original Indenture.
“Agent Members” has the meaning specified in Section 209(e)(v).
“Applicable Procedures” means, with respect to any transfer or transaction involving a Global Note or beneficial interest therein, the rules and procedures of the Depositary for such Note, in each case to the extent applicable to such transaction and as in effect from time to time.
“Business Day” means any day other than a Saturday, a Sunday or a legal holiday or a day on which banking institutions or trust companies in The City of New York are authorized or obligated by law to close.
“cash” means U.S. legal tender.
“Certificated Notes” means a note required to bear the Legend set forth on the form of the Notes attached as Exhibit A to this Supplemental Indenture.
“Clearstream” means Clearstream Banking, societe anonyme (formerly Cedelbank).
“Comparable Treasury Issue” means, with respect to the Notes subject to redemption, the United States Treasury security selected by the Quotation Agent as having an actual or interpolated maturity comparable to the remaining life of the Notes to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity with the remaining life of the Notes to be redeemed.
“Comparable Treasury Price” means, with respect to any Redemption Date, the average of five Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and lowest of such Reference Treasury Dealer Quotations, or, if the Trustee obtains fewer than four such Reference Treasury Dealer Quotations, the average of all such quotations.
“Debt Securities” has the meaning specified in the first recital hereof.
“Depositary” means, with respect to the Notes issuable in whole or in part in global form, DTC and any nominee thereof, until a successor shall have been appointed and become such pursuant to the applicable provisions of the Indenture, and thereafter “Depositary” shall mean or include such successor and any nominee thereof.
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“DTC” means The Depository Trust Company.
“Euroclear” means the Euroclear System.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Global Note” means a Note issued in global form and deposited with or on behalf of the Depositary.
“Holder” and “Noteholder,” in the case of any Note, means the Person in whose name such Note is registered in the Debt Security Register.
“Institutional Accredited Investor” means an institutional “accredited investor” as defined in Rule 501(a)(1), (2), (3) and (7) under the Securities Act.
“Interest Payment Date,” in respect of any Note, has the meaning assigned to it in such Note.
“Issue Date” means February 20, 2009.
“Legend” has tire meaning specified in Section 207(c).
“Notes” has the meaning specified in the recitals hereof.
“Purchase Agreement” means the Purchase Agreement dated February 12, 2009, among the Company and Barclays Capital Inc., J.P. Morgan Securities Inc., Greenwich Capital Markets, Inc. and Wachovia Capital Markets, LLC, acting as representatives on behalf of the Initial Purchasers (as defined therein).
“Qualified Institutional Buyer” has the meaning specified in Rule 144A.
“Quotation Agent” means a Reference Treasury Dealer appointed by the Company.
“Redemption Date,” with respect to any Note or portion thereof to be redeemed, means the date fixed for redemption in accordance with the terms of the Notes and Article III of the Original Indenture.
“Redemption Price,” with respect to any Note or portion thereof to be redeemed, means the greater of:
(a) 100% of the principal amount of the Notes or portion thereof, as applicable, to be redeemed; or
(b) the sum, as determined by the Quotation Agent, of the present values of the principal amount and the remaining scheduled payments of interest on such Notes or portion thereof, as applicable, to be redeemed (exclusive of interest accrued to the Redemption Date), in each case, discounted from their respective scheduled payment dates to the Redemption Date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 75 basis points, plus, in either case, accrued and unpaid interest thereon to the Redemption Date.
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“Reference Treasury Dealer” means Barclays Capital Inc., J.P. Morgan Securities Inc., Greenwich Capital Markets. Inc. and their respective successors, one other primary United States Government securities dealer in New York City selected by Wachovia Capital Markets, LLC or its successor, and one other primary United States Government securities dealer in New York City selected by the Company; provided, however, that if any of the foregoing shall cease to be a primary United States Government securities dealer, the Company will substitute another primary United States Government securities dealer.
“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and any Redemption Date, the average, as determined by the Trustee, of the bid and asked prices for the Comparable Treasury Issue, expressed in each case as a percentage of its principal amount, quoted in writing to the Trustee by such Reference Treasury Dealer at 3:30 p.m., New York City time, on the third Business Day preceding such Redemption Date.
“Regulation S” means Regulation S under the Securities Act.
“Regulation S Global Note” means a Global Note in the form of the Notes attached hereto as Exhibit A, and that is deposited with and registered in the name of the Depositary, representing Notes sold in offshore transactions in reliance on Regulation S.
“Resale Restriction Termination Period” means the period from the Issue Date until (1) the date that is one year after the later of (a) the date of the original issuance of such Notes or (b) the last day on which the Company or any of its Affiliates was the owner of the Notes, and (2) such later date, if any, as may be required by applicable laws.
“Restricted Note” means a Note required to bear the restrictive legends set forth on the form of Note attached as Exhibit A to this Supplemental Indenture.
“Rule 144A” means Rule 144A under the Securities Act (or any successor provision), as it may be amended from time to time.
“SEC” means the U.S. Securities and Exchange Commission.
“Securities Act” means the Securities Act of 1933, as amended.
“Supplemental Indenture” means this Eleventh Supplemental Indenture.
“Treasury Rate” has the meaning assigned to it in the Notes.
“Trustee” has the meaning specified in the first paragraph hereof.
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“US Global Note” means a Global Note in the form of the Notes attached hereto as Exhibit A, and that is deposited with and registered in the name of the Depositary, representing Notes sold in reliance on Rule 144A.
SECTION 102 Section References. Each reference to a particular section set forth in this Supplemental Indenture shall, unless the context otherwise requires, refer to this Supplemental Indenture.
ARTICLE 2
THE NOTES
SECTION 201 Title of the Notes. The Notes shall be known and designated as the “8.375% Notes due 2039” of the Company.
SECTION 202 Amount. The aggregate principal amount of Notes that may be authenticated and delivered under this Supplemental Indenture is initially limited to $1,250,000,000, except for Notes authenticated and delivered upon registration of transfer of, or exchange for, or in lieu of, other Notes pursuant to Section 2.07, 2.08, 2.09 or 9.04 of the Indenture, or upon repayment in part of any Note pursuant to Article III of the Original Indenture. The Company may, from time to time, subject to compliance with any other applicable provisions of this Eleventh Supplemental Indenture but without the consent of the Holders, create and issue pursuant to this Eleventh Supplemental Indenture an unlimited principal amount of additional Notes (in excess of any amounts theretofore issued) having the same terms and conditions to those of the other outstanding Notes, except that any such additional Notes (i) may have a different issue date and issue price from other outstanding Notes and (ii) may have a different amount of interest payable on the first Interest Payment Date after issuance than the amount payable on other outstanding Notes.
SECTION 203 Stated Maturity. The Stated Maturity of the Notes shall be March 1,2039.
SECTION 204 Interest. The Notes shall bear cash interest at the rate of 8.375% from February 20, 2009 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, payable semiannually on March 1 and September 1 of each year, beginning on September 1, 2009, to the Persons in whose names such Notes are registered at the close of business on the immediately preceding February 15 or August 15, as the case may be, whether or not a Business Day. Interest on the Notes will be computed on the basis of a 360-day year of twelve 30-day months.
SECTION 205 Payments.
(a) Payments of principal, premium, if any, and interest on the Notes will be made to the Depositary, or its nominee, as the case may be, as the registered owner and holder of the Global Notes representing the Notes. In the event that the Notes are issued in the form of Certificated Notes, payments of principal, premium, if any, and interest thereon will be at the office of the Trustee in The City of New York designated for such purpose, provided that payment of interest, other than interest payable at Stated Maturity or upon redemption, may be made at the option of the Company by check mailed by the Trustee to the address of the Person entitled as shown on the Debt Security Register.
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(b) If any Stated Maturity date, Redemption Date or Interest Payment Date, falls on a day that is not a Business Day, the required payment shall be made on the next Business Day, and no interest shall accrue on the amount so payable for the period between such payment date and the next Business Day.
(c) Payments of principal, premium, if any, and interest on the Notes shall be made in cash or such other coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debt.
SECTION 206 Redemption. The Notes shall be redeemable, in whole or in part, on one or more Redemption Dates at the applicable Redemption Price. If the Redemption Date is not an Interest Payment Date, the amount of the scheduled interest payment on the next succeeding Interest Payment Date will be reduced by the amount of interest accrued to the Redemption Date.
SECTION 207 Forms; Denominations. The Notes shall be Registered Securities. The Global Notes representing the Notes shall be in substantially the form attached hereto as Exhibit A.
The Notes are being offered and sold by the Company pursuant to the Purchase Agreement.
(a) Global Notes, (i) Notes offered and sold in reliance on Rule 144A as provided in the Purchase Agreement shall be issued initially in the form of one or more US Global Notes in definitive fully registered form without interest coupons, deposited on behalf of the subscribers for the Notes represented thereby with the Trustee, as custodian for the Depositary and registered in the name of DTC or a nominee thereof, duly executed by the Company and authenticated by the Trustee as provided in the Indenture. The aggregate principal amount of the US Global Notes may from time to time be increased or decreased by adjustments made on the records of the Trustee and the Depositary as hereinafter provided.
Notes offered and sold in offshore transactions in reliance on Regulation S as provided in the Purchase Agreement shall be issued initially in the form of one or more Regulation S Global Notes in definitive fully registered form without interest coupons, deposited on behalf of the subscribers for the Notes represented thereby with the Trustee, as custodian for the Depositary, for the accounts of Euroclear and Clearstream and registered in the name of DTC or a nominee thereof, duly executed by the Company and authenticated by the Trustee as hereinafter provided. The aggregate principal amount of the Regulation S Global Notes may from time to time be increased or decreased by adjustments made on the records of the Trustee and the Depositary as hereinafter provided.
Each Global Note shall represent such of the Outstanding Notes as shall be specified therein and each shall provide that it shall represent the aggregate principal amount of Outstanding Notes from time to time endorsed thereon and the aggregate principal amount of Outstanding Notes represented thereby may from time to time be reduced to reflect exchanges or redemptions. Any adjustment of the aggregate principal amount of a Global Note representing the Notes to reflect the amount of any decrease in the principal amount of Outstanding Notes represented thereby shall be made by the Trustee in accordance with instructions given by the Holder thereof as required by Section 209 hereof and shall be made on the records of the Trustee and the Depositary.
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(ii) Book-Entry Provisions. This Section 207(a)(ii) shall apply only to Global Notes.
The Company shall execute and the Trustee shall, in accordance with this Section 207(a)(ii) and Section 2.02 of the Indenture, authenticate and deliver initially one or more Global Notes that (a) shall be registered in the name of the Depositary, (b) shall be delivered by the Trustee to the Depositary or pursuant to the Depositary’s instructions and (c) shall bear legends substantially to the following effect:
“UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON 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.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS, IN WHOLE BUT NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN ARTICLE TWO OF THE ELEVENTH SUPPLEMENTAL INDENTURE REFERRED TO ON THE REVERSE HEREOF.”
(b) Certificated Notes. Except as otherwise set forth in this Supplemental Indenture, owners of beneficial interests in Global Notes will not be entitled to receive physical delivery of Certificated Notes. Beneficial interests in a Global Note transferred in accordance with Section 209(a)(ii) to an Institutional Accredited Investor who is not a Qualified Institutional Buyer and beneficial interests in a Global Note transferred to the beneficial holders thereof pursuant to Section 209(e) will be issued in certificated, registered form without interest coupons.
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(c) Restrictive Legends. Until the completion of the Resale Restriction Termination Period, all Global Notes and all Certificated Notes shall bear a legend (the “Legend”) in substantially the following form, unless such Notes have been sold pursuant to a registration statement that has been declared effective under the Securities Act:
“THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933 (THE “SECURITIES ACT”) AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED PRIOR TO THE END OF THE PERIOD (THE “RESALE RESTRICTION PERIOD”) FROM THE DATE OF ORIGINAL ISSUANCE UNTIL (A) THE DATE THAT IS ONE YEAR AFTER THE LATER OF (X) THE DATE OF THE ORIGINAL ISSUANCE OF THE NOTES OR (Y) THE LAST DAY ON WHICH THE ISSUER OR ANY OF ITS AFFILIATES WAS THE OWNER OF THE NOTES, AND (B) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAWS, EXCEPT (1) TO THE ISSUER, (2) TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (3) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (4) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT (IF AVAILABLE), (5) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS AN INSTITUTIONAL ACCREDITED INVESTOR ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF THE SECURITIES OF $100,000, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (6) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (4) OR (5) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION PERIOD.”
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SECTION 208 Transfer and Exchange.
(a) Notwithstanding any provision to the contrary herein, so long as a Global Note remains Outstanding and is held by or on behalf of the Depositary, transfers of a Global Note, in whole or in part, shall be made only in accordance with Section 209 and this Section 208.
(b) Transfers of a Global Note shall be limited to transfers of such Global Note in whole, or in part, to nominees of the Depositary or to a successor of the Depositary or such successor’s nominee.
(c) If Notes are issued upon the transfer, exchange or replacement of Notes subject to restrictions on transfer and bearing the Legend, or if a request is made to remove the Legend on a Note, the Notes so issued shall bear the Legend, or the Legend shall not be removed, as the case may be, unless there is delivered to the Company and the Registrar such satisfactory evidence, which shall include an opinion of counsel, as may be reasonably required by the Company and the Registrar, that neither the Legend nor the restrictions on transfer set forth therein are required to ensure that transfers thereof comply with the provisions of Rule 144A, Rule 144 or Regulation S under the Securities Act, that such Notes are not “restricted” within the meaning of Rule 144 under the Securities Act or that any such exchange or replacement Notes have been issued in a registered transaction under the Securities Act. Upon (i) provision of such satisfactory evidence, or (ii) notification by the Company to the Trustee and the Registrar of the sale or exchange of such Notes pursuant to a registration statement that is effective at the time of such sale, the Trustee, at the written direction of the Company, shall authenticate and deliver a Note that does not bear the Legend. If the Legend is removed from the face of a Note and the Note is subsequently held by an Affiliate of the Company, the Legend shall be reinstated.
The Trustee and the Registrar shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Supplemental Indenture or under applicable law with respect to any transfer of any interest in any Note (including transfers between or among the Depositary’s participants or beneficial owners of interest in any Global Note) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Supplemental Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.
9
SECTION 209 Global Notes.
(a) Notwithstanding any other provisions of this Supplemental Indenture or the Notes, (A) transfers of a Global Note, in whole or in part, shall be made only in accordance with Section 2.07 of the Indenture and Sections 208 and 209(a)(i) below, (B) transfer of a beneficial interest in a Global Note for a Certificated Note shall comply with Section 2.07 of the Indenture and Section 209(a)(ii) below, and (C) transfers of a Certificated Note shall comply with Section 2.07 of the Indenture and Sections 209(a)(iii) and (iv) below.
(i) Transfer of Global Note. A Global Note may not be transferred, in whole or in part, to any Person other than the Depositary or a nominee thereof, and no such transfer to any such other Person may be registered; provided that this clause (i) shall not prohibit any transfer of a Note that is issued in exchange for a Global Note but is not itself a Global Note. No transfer of a Note to any Person shall be effective under the Indenture or the Notes unless and until such Note has been registered in the name of such Person. Nothing in this Section 209(a)(i) shall prohibit or render ineffective any transfer of a beneficial interest in a Global Note effected in accordance with the other provisions of this Section 209(a).
(ii) Restrictions on Transfer of a Beneficial Interest in a Global Note for a Certificated Note. A beneficial interest in a Global Note may not be exchanged for a Certificated Note except upon satisfaction of the requirements set forth below. Upon receipt by the Trustee of a request for transfer of a beneficial interest in a Global Note in accordance with Applicable Procedures for a Certificated Note in the form satisfactory to the Trustee, together with:
(a) so long as the Notes are Restricted Securities, certification, in the form set forth in Exhibit B-l attached hereto, and, if requested by the Company or the Registrar, certification in the form set forth in Exhibit B-2 attached hereto, that such beneficial interest in the Global Note is being transferred to an Institutional Accredited Investor;
(b) written instructions to the Trustee to make, or direct the Registrar to make, an adjustment on its books and records with respect to such Global Note to reflect a decrease in the aggregate principal amount of the Notes represented by the Global Note, such instructions to contain information regarding the Depositary account to be credited with such decrease; and
(c) if the Company or Registrar so requests, an opinion of counsel or other evidence reasonably satisfactory to them as to compliance with the restrictions set forth in the Legend,
then the Trustee shall cause, or direct the Registrar to cause, in accordance with the standing instructions and procedures existing between the Depositary and the Registrar, the aggregate principal amount of Notes represented by the Global Note to be decreased by the aggregate principal amount of the Certificated Note to be issued, shall issue such Certificated Note and shall debit or cause to be debited to the account of the Person specified in such instructions a beneficial interest in the Global Note equal to the principal amount of the Certificated Note so issued.
10
(iii) Transfer and Exchange of Certificated Notes. When Certificated Notes are presented to the Registrar with a request:
(x) to register the transfer of such Certificated Notes; or
(y) to exchange such Certificated Notes for an equal principal amount of Certificated Notes of other authorized denominations,
the Registrar shall register the transfer or make the exchange as requested if its reasonable requirements for such transaction are met; provided, however, that the Certificated Notes surrendered for transfer or exchange:
(a) shall be duly endorsed or accompanied by a written instrument of transfer in form reasonably satisfactory to the Company and the Registrar, duly executed by the Holder thereof or his attorney duly authorized in writing; and
(b) so long as such Notes are Restricted Notes, such Notes are being transferred or exchanged pursuant to clause (A), (B) or (C) below, and are accompanied by the following additional information and documents, as applicable:
(A) if such Certificated Notes are being delivered to the Registrar by a Holder for registration in the name of such Holder, without transfer, a certification from such Holder to that effect; or
(B) if such Certificated Notes are being transferred to the Company, a certification to that effect; or
(C) if such Certificated Notes are being transferred pursuant to an exemption from registration, (i) a certification to that effect (in the form set forth in Exhibit B-l and B-2, if applicable) and (ii) if the Company or Registrar so requests, an opinion of counsel or other evidence reasonably satisfactory to them as to the compliance with the restrictions set forth in the Legend.
(iv) Restrictions on Transfer of a Certificated Note for a Beneficial Interest in a Global Note. A Certificated Note may not be exchanged for a beneficial interest in a Global Note except upon satisfaction of the requirements set forth below.
Upon receipt by the Trustee of a Certificated Note, duly endorsed or accompanied by appropriate instruments of transfer, in form satisfactory to the Trustee, together with:
(a) so long as the Notes are Restricted Notes, certification, in the form set forth in Exhibit B-1, that such Certificated Note is being transferred to a Qualified Institutional Buyer in accordance with Rule 144A; and
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(b) written instructions directing the Trustee to make, or to direct the Registrar to make, an adjustment on its books and records with respect to such Global Note to reflect an increase in the aggregate principal amount of the Notes represented by the Global Note, such instructions to contain information regarding the Depositary account to be credited with such increase,
then the Trustee shall cancel such Certificated Note and cause, or direct the Registrar to cause, in accordance with the standing instructions and procedures existing between the Depositary and the Registrar, the aggregate principal amount of Notes represented by the Global Note to be increased by the aggregate principal amount of the Certificated Note to be exchanged, and shall credit or cause to be credited to the account of the Person specified in such instructions a beneficial interest in the Global Note equal to the principal amount of the Certificated Note so cancelled. If no Global Notes are then outstanding, the Company shall issue and the Trustee shall authenticate, upon receipt of a Company Order, a new Global Note in the appropriate principal amount.
(b) Subject to the succeeding paragraph, every Note shall be subject to the restrictions on transfer provided in the Legend including the delivery of an opinion of counsel, if so provided. Whenever any Restricted Note is presented or surrendered for registration of transfer or for exchange for a Note registered in a name other than that of the Holder, such Note must be accompanied by a certificate in substantially the form set forth in Exhibit B-l, dated the date of such surrender and signed by the Holder of such Note, as to compliance with such restrictions on transfer. The Registrar shall not be required to accept for such registration of transfer or exchange any Note not so accompanied by a properly completed certificate.
(c) The restrictions imposed by the Legend upon the transferability of any Note shall cease and terminate when such Note has been sold or exchanged pursuant to an effective registration statement under the Securities Act or may be transferred in compliance with Rule 144 under the Securities Act (or any successor provision thereto). Any Note as to which such restrictions on transfer shall have expired in accordance with their terms or shall have terminated may, upon a surrender of such Note for exchange to the Registrar in accordance with the provisions of this Section 209 (accompanied, in the event that such restrictions on transfer have terminated by reason of a transfer in compliance with Rule 144 or any successor provision, by an opinion of counsel having substantial experience in practice under the Securities Act and otherwise reasonably acceptable to the Company, addressed to the Company, the Trustee and the Registrar and in form acceptable to the Company, to the effect that the transfer of such Note has been made in compliance with Rule 144 or such successor provision), be exchanged for a new Note, of like tenor and aggregate principal amount, which shall not bear the restrictive Legend. The Company shall inform the Trustee of the effective date of any registration statement registering the Notes under the Securities Act. The Trustee shall not be liable for any action taken or omitted to be taken by it in good faith in accordance with the aforementioned opinion of counsel.
(d) As used in the preceding two paragraphs of this Section 209, the term “transfer” encompasses any sale, pledge, transfer, hypothecation or other disposition of any Note.
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(e) The provisions of clauses (i), (ii), (iii), (iv), and (v) below shall apply only to Global Notes:
(i) Notwithstanding any other provisions of the Indenture or the Notes, except as provided in Section 209(a)(ii), a Global Note shall not be exchanged in whole or in part for a Note registered in the name of any Person other than the Depositary or one or more nominees thereof, provided that a Global Note may be exchanged for Notes registered in the names of any Person designated by the Depositary in the event that (i) the Depositary has notified the Company that it is unwilling or unable to continue as depositary for such Global Note or the Depositary has ceased to be a “clearing agency” registered under the Exchange Act, and a successor Depositary is not appointed by the Company within 90 days or (ii) an Event of Default has occurred and is continuing with respect to the Notes. Any Global Note exchanged pursuant to clause (i) above shall be so exchanged in whole and not in part, and any Global Note exchanged pursuant to clause (ii) above may be exchanged in whole or from time to time in part as directed by the Depositary. In the event that Certificated Notes are issued in respect of beneficial interests in a Regulation S Global Note at any time prior to one year after the date of this Supplemental Indenture (other than in a transaction subject to Rule 144A), the Company shall as promptly as practicable, institute procedures, including appropriate certifications, reasonably designed to ensure that any transfer of such Certificated Notes prior to the end of such one year is made only in accordance with the provisions of Regulation S, pursuant to registration under the Securities Act or pursuant to an exemption from such registration.
(ii) Notes issued in exchange for a Global Note or any portion thereof shall be issued in definitive, fully registered form, without interest coupons, shall have an aggregate principal amount equal to that of such Global Note or portion thereof to be so exchanged, shall be registered in such names and be in such authorized denominations as the Depositary shall designate and shall bear the Legend. Any Global Note to be exchanged in whole shall be surrendered by the Depositary to the Trustee, as Registrar. With regard to any Global Note to be exchanged in part, either such Global Note shall be so surrendered for exchange or, if the Trustee is acting as custodian for the Depositary or its nominee with respect to such Global Note, the principal amount thereof shall be reduced, by an amount equal to the portion thereof to be so exchanged, by means of an appropriate adjustment made on the records of the Trustee. Upon any such surrender or adjustment, the Trustee shall authenticate and deliver the Note issuable on such exchange to or upon the order of the Depositary or an authorized representative thereof.
(iii) Subject to the provisions of clause (v) below, the registered Holder may grant proxies and otherwise authorize any Person, including Agent Members (as defined below) and Persons that may hold interests through Agent Members, to take any action which a Holder is entitled to take under the Indenture or the Notes.
(iv) In the event of the occurrence of any of the events specified in clause (i) above, the Company will promptly make available to the Trustee a reasonable supply of Certificated Notes.
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(v) Neither any members of, or participants in, the Depositary (collectively, the “Agent Members”) nor any other Persons on whose behalf Agent Members may act shall have any rights under the Indenture with respect to any Global Note registered in the name of the Depositary or any nominee thereof, or under any such Global Note, and the Depositary or such nominee, as the case may be, may be treated by the Company, the Trustee and any agent of the Company or the Trustee as the absolute owner and holder of such Global Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee or any agent of the Company or the Trustee from giving effect to any written certification, proxy or other authorization furnished by the Depositary or such nominee, as the case may be, or impair, as between the Depositary, its Agent Members and any other Person on whose behalf an Agent Member may act, the operation of customary practices of such Persons governing the exercise of the rights of a Holder of any Note.
SECTION 210 Event of Default. For purposes of this Eleventh Supplemental Indenture and the Notes issued hereunder, Section 6.01 of the Original Indenture is hereby amended by deleting the clause immediately following subsection (i) in the first sentence of such Section and inserting in its place the following;
“then and in each and every case that an Event of Default described in clause (a), (b), (c), (d), (e), (f), (g) (with respect to Restricted Subsidiaries only), (h) (with respect to Restricted Subsidiaries only) or (i) with respect to Debt Securities of that series at the time Outstanding occurs and is continuing, unless the principal of and interest on all the Debt Securities of that series shall have already become due and payable, either the Trustee or the Holders of not less than 25% in aggregate principal amount of the Debt Securities of that series then Outstanding hereunder, by notice in writing to the Company (and to the Trustee if given by Holders), may declare the principal of (or, if the Debt Securities of that series are Original Issue Discount Debt Securities, such portion of the principal amount as may be specified in the terms of that series) and interest on all the Debt Securities of that series to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything in this Indenture or in the Debt Securities or Coupons appertaining thereto of that series contained to the contrary notwithstanding.”
ARTICLE 3
REPORTS BY THE COMPANY
So long as any of the Debt Securities are “restricted securities” within the meaning of Rule 144(a)(3) under the Securities Act, the Company will, during any period in which it is not subject to Sections 13 or 15(d) of the Exchange Act or it is not exempt from such reporting requirements pursuant to and in compliance with Rule 12g3-2(b) under the Exchange Act, provide to each Holder of Notes and to each prospective purchaser (as designated by such Holder) of Notes, upon the request of such Holder or prospective purchaser, any information required to be provided by Rule I44A(d)(4) under the Securities Act.
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ARTICLE 4
MISCELLANEOUS PROVISIONS
The Trustee makes no undertaking or representations in respect of, and shall not be responsible in any manner whatsoever for and in respect of, the validity or sufficiency of this
Supplemental Indenture or the proper authorization or the due execution hereof by the Company or for or in respect of the recitals and statements contained herein, all of which recitals and statements are made solely by the Company.
The provisions of Article XI of the Original Indenture relating to defeasance shall apply to the Notes.
Except as expressly amended hereby, the Original Indenture shall continue in full force and effect in accordance with the provisions thereof, and the Original Indenture is in all respects hereby ratified and confirmed. This Supplemental Indenture and all its provisions shall be deemed a part of the Original Indenture in the manner and to the extent herein and therein provided.
This Supplemental Indenture shall be governed by, and construed in accordance with, the laws of the State of New York.
This Supplemental Indenture may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.
[SIGNATURE PAGE FOLLOWS]
15
IN WITNESS WHEREOF, the Parties have executed this Eleventh Supplemental Indenture by their duly authorized signatories as of the date first above written.
| COX COMMUNICATIONS, INC. | |||
| By: | /s/ Susan W. Coker | ||
| Name: | Susan W. Coker | ||
| Title: | Vice President and Treasurer | ||
| By: | /s/ Mark F. Bowser | ||
| Name: | Mark F. Bowser | ||
| Title: | Senior Vice President and Chief Financial Office | ||
Eleventh Supplemental Indenture Signature Page
| THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee | |||
| By: | /s/ KAREN Z. KELLY | ||
| Name: | KAREN Z. KELLY | ||
| Title: | Vice President | ||
Eleventh Supplemental Indenture Signature Page
EXHIBIT A
[FORM OF FACE OF SECURITY]
[TRANSFER RESTRICTED LEGEND]
[THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933 (THE “SECURITIES ACT”) AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED PRIOR TO THE END OF THE PERIOD (THE “RESALE RESTRICTION PERIOD”) FROM THE DATE OF ORIGINAL ISSUANCE UNTIL (A) THE DATE THAT IS ONE YEAR AFTER THE LATER OF (X) THE DATE OF THE ORIGINAL ISSUANCE OF THE NOTES OR (Y) THE LAST DAY ON WHICH THE ISSUER OR ANY OF ITS AFFILIATES WAS THE OWNER OF THE NOTES, AND (B) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAWS, EXCEPT (1) TO THE ISSUER, (2) TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (3) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (4) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT (IF AVAILABLE), (5) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS AN INSTITUTIONAL ACCREDITED INVESTOR ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF THE SECURITIES OF $100,000, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (6) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (4) OR (5) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION PERIOD.]
A-1
[GLOBAL NOTES LEGEND]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON 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.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS, IN WHOLE BUT NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN ARTICLE TWO OF THE ELEVENTH SUPPLEMENTAL INDENTURE REFERRED TO ON THE REVERSE HEREOF.]
A-2
| No. R- | PRINCIPAL AMOUNT | |
| CUSIP No. | $ |
COX COMMUNICATIONS, INC.
8.375% Notes due 2039
COX COMMUNICATIONS, INC., a Delaware corporation (hereinafter called the “Company,” which term includes any successor corporation under the Indenture referred to below), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of [ ] ($ ) on March 1, 2039 (the “Maturity Date”), unless previously redeemed, and to pay interest thereon from February 20, 2009 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, payable semiannually on March 1 and September 1 in each year (each, an “Interest Payment Date”), commencing September 1, 2009, at the rate of 8.375% per annum, until the principal hereof is paid or duly made available for payment. Interest shall be computed on the basis of a 360-day year of twelve 30-day months. The interest so payable and punctually paid or duly provided for on any Interest Payment Date will, as provided in the Indenture, be paid to the Person in whose name this Note (or one or more predecessor securities) is registered at the close of business on the regular record date for such interest, which shall be February 15 or August 15 (whether or not a Business Day), as the case may be, immediately preceding such Interest Payment Date. Any such interest which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date shall forthwith cease to be payable to the registered Holder hereof on the relevant regular record date by virtue of having been such Holder, and may be paid to the Person in whose name this Note (or one or more predecessor securities) is registered at the close of business on a subsequent special record date (which shall be not more than 15 days and not less than 10 days before the payment date) for the payment of such defaulted interest to be fixed by the Trustee, notice whereof shall be given to the Holders of Notes of this series not less than 10 days prior to such special record date, or may be paid at any time in any other lawful manner, all as more fully provided in such Indenture. If any Interest Payment Date, Redemption Date or the Maturity Date falls on a day that is not a Business Day, the required payment shall be made on the next Business Day as if it were made on the date such payment was due and no interest shall accrue on the amount so payable for the period from and after such Interest Payment Date, Redemption Date or the Maturity Date, as the case may be, to such next Business Day. Payments of principal, premium, if any, and interest hereunder shall be made in such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts and shall be made immediately available to the Holder (as defined below) hereof.
This Note is one of the duly authorized series of Debt Securities of the Company, designated as the Company’s “8.375% Notes due 2039” (the “Notes”), initially limited to an aggregate principal amount of $1,250,000,000, all issued or to be issued under and pursuant to an Indenture dated as of June 27, 1995 (the “Original Indenture”), as supplemented by the Eleventh Supplemental Indenture dated as of February 20, 2009 (the “Eleventh Supplemental Indenture”, and together with the Original Indenture, the “Indenture”), duly executed and delivered by the Company to The Bank of New York Mellon Trust Company, N.A, as trustee (hereinafter referred to as the “Trustee”), to which Indenture and all indentures supplemental thereto reference is hereby made for a description of the rights, limitation of rights, obligations, duties and immunities thereunder of the Trustee, the Company and the Holders (the words “Holders” or “Holder” meaning the registered holders or registered holder of the Notes).
A-3
This Note will be redeemable at the option of the Company, in whole at any time or in part from time to time, at a Redemption Price equal to the greater of (i) 100% of the principal amount of this Note to be redeemed or (ii) the sum, as determined by the Quotation Agent, of the present values of the principal amount of this Note to be redeemed and the remaining scheduled payments of interest on the principal amount of this Note to be redeemed (exclusive of interest accrued to the Redemption Date), in each case, discounted from their respective scheduled payment dates to the Redemption Date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as defined below) plus 75 basis points, plus accrued and unpaid interest thereon to the Redemption Date.
“Comparable Treasury Issue” means, with respect to this Note subject to redemption, the United States Treasury security selected by the Quotation Agent as having an actual or interpolated maturity comparable to the remaining life of this Note to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity with the remaining life of this Note to be redeemed.
“Comparable Treasury Price” means, with respect to any Redemption Date, the average of five Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and lowest of such Reference Treasury Dealer Quotations, or, if the Trustee obtains fewer than four such Reference Treasury Dealer Quotations, the average of all such quotations.
“Quotation Agent” means a Reference Treasury Dealer appointed by the Company.
“Reference Treasury Dealer” means Barclays Capital Inc., J.P. Morgan Securities Inc., Greenwich Capital Markets, Inc. and their respective successors, one other primary United States Government securities dealer in New York City (each, a “Primary Treasury Dealer”) selected by Wachovia Capital Markets, LLC or its successor, and one other Primary Treasury Dealer selected by the Company; provided, however, that if any of the foregoing shall cease to be a Primary Treasury Dealer, the Company will substitute another Primary Treasury Dealer.
“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and any Redemption Date, the average, as determined by the Trustee, of the bid and asked prices for the Comparable Treasury Issue, expressed in each case as a percentage of its principal amount, quoted in writing to the Trustee by such Reference Treasury Dealer at 3:30 p.m., New York City time, on the third Business Day preceding such Redemption Date.
“Treasury Rate” means, with respect to any Redemption Date applicable to this Note, the rate per annum equal to the semi-annual or equivalent yield to maturity or interpolated (on a day-count basis) of the Comparable Treasury Issue, calculated on the third Business Day preceding such Redemption Date using a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such Redemption Date.
A-4
This Note is not subject to any sinking fund.
Notice of any redemption will be mailed at least 30 days but not more than 60 days before the Redemption Date to the Holder hereof at its registered address.
If money sufficient to pay the Redemption Price with respect to and accrued and unpaid interest on the principal amount of this Note to be redeemed on the Redemption Date is deposited with the Trustee or Paying Agent on or before the Redemption Date and certain other conditions specified in the Indenture are satisfied, then on or after such date, interest will cease to accrue on the principal amount of this Note called for redemption.
Except as provided above, this Note is not redeemable by the Company prior to maturity and is not subject to any sinking fund.
In case an Event of Default shall occur and be continuing, the principal hereof may be declared, and upon such declaration shall become, due and payable, in the manner, with the effect and subject to the conditions provided in the Indenture.
Subject to certain exceptions set forth in the Indenture, (i) the Indenture may be amended with respect to the Notes with the consent of the Holders of at least a majority in principal amount outstanding of the Notes and (ii) any default or noncompliance with any provisions applicable to the Notes may be waived with the consent of the Holders of a majority in principal amount outstanding of the Notes. Subject to certain exceptions set forth in the Indenture, without the consent of any Holder, the Company and the Trustee may amend the Indenture or the Notes to, among other things, cure any ambiguity, defect or inconsistency, or to provide for the assumption by a successor corporation of the obligations of the Company under the Indenture, or to add additional covenants or surrender any right or power conferred on the Company, or to establish the form or terms of the Notes of any series, or to appoint a successor Trustee or provide for administration of the trust by more than one Trustee, or to add to, delete from or revise the conditions, limitations, and restrictions on the authorized amount, terms or purposes of issue, authentication and delivery of the Notes or to add any additional event of default, or to modify the provisions of the Indenture as shall be necessary to facilitate the defeasance and discharge of the Notes as shall not adversely affect any Holders, or to secure the Notes, or to make provisions with respect to exchange rights of Holders, or to make any change that does not adversely affect the rights of any Holder.
Subject to certain conditions, the Company at any time may terminate some or all of its obligations under the Notes and the Indenture if the Company deposits with the Trustee money or Government Obligations for the payment of principal, premium, if any, and interest on the Notes to the Maturity Date.
If money for the payment of principal or interest remains unclaimed for two years, the Trustee or Paying Agent shall pay the money back to the Company at its request unless an abandoned property law designates another Person. After any such payment, Holders entitled to the money must look only to the Company and not to the Trustee for payment.
A-5
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and premium, if any, and interest on this Note at the place, at the respective times, at the rate, and in the coin or currency herein prescribed.
No director, officer, employee or stockholder, as such, of the Company shall have any liability for any obligations of the Company under this Note or the Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. Each Holder, by accepting this Note, waives and releases all such liability. The waiver and release are part of the consideration for the issue of this Note.
This Note and the Indenture shall be governed by and construed in accordance with the law of the State of New York applicable to agreements made or instruments entered into and, in each case, performed in said state.
Ownership of this Note shall be proved by the register for the Notes kept by the Registrar. The Company, the Trustee and any agent of the Company may treat the Person in whose name a Note is registered as the absolute owner thereof for all purposes.
Pursuant to a recommendation promulgated by the Committee on Uniform Note Identification Procedures, the Company has caused a CUSIP number to be printed on this Note and has directed the Trustee to use the CUSIP number as a convenience to Holders. No representation is made as to the correctness of such numbers and reliance may be placed only on the other identification numbers printed on this Note.
Terms used herein without definition that are defined in the Indenture shall have the meanings assigned to them in the Indenture.
Unless the Certificate of Authentication hereon has been executed by the Trustee under the Indenture referred to herein by the manual signature of one of its authorized officers, or on behalf of the Trustee by the manual signature of an authorized officer of the Trustee’s authenticating agent, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
[Remainder of Page Intentionally Left Blank]
A-6
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed, manually or by facsimile.
Date: February , 2009
| COX COMMUNICATIONS, INC. | |||
| By: | |||
| Name: | Susan W. Coker | ||
| Title: | Vice President and Treasurer | ||
| By: | |||
| Name: | Mark F. Bowser | ||
| Title: | Senior Vice President and Chief Financial Office | ||
CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated therein referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
as Trustee
| By: | ||
| Authorized Signatory | ||
| Dated: February 2009 | ||
A-7
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby sell(s) assign(s) and transfer(s) unto
Please insert social security number 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 attorney to transfer said Note of Cox Communications, Inc. on the books of Cox Communications, Inc. 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 this Note in every particular without alteration or enlargement or any change whatsoever. The Signature must be guaranteed by an “eligible guarantor institution meeting the requirements of the Registrar, which requirements include memberships or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934.
A-8
EXHIBIT B-l
Transfer Certificate
In connection with a transfer of any of the $ principal amount of the 8.375% Notes due 2039 (the “Notes”) of Cox Communications, Inc. (the “Company”) within the period prior to the expiration of the holding period applicable to the sales thereof under Rule 144 under the Securities Act of 1933, as amended (the “Securities Act”) (or any successor provision), the undersigned registered owner of this Note hereby certifies with respect to $ principal amount of the above-captioned securities presented or surrendered on the date hereof (the “Surrendered Notes”) for registration of transfer, or for exchange where the securities deliverable upon such exchange are to be registered in a name other than that of the undersigned registered owner (each such transaction being a “transfer”), that such transfer complies with the restrictive legend set forth on the face of the Surrendered Notes for the reason checked below:
| ¨ | A transfer of the Surrendered Notes is made to the Company or any subsidiaries; | |
| ¨ | The transfer of the Surrendered Notes complies with Rule 144A under the Securities Act; or | |
| ¨ | The transfer of the Surrendered Notes is to an institutional accredited investor, as described in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act; or | |
| ¨ | The transfer of the Surrendered Notes is pursuant to an effective registration statement under the Securities Act, or | |
| ¨ | The transfer of the Surrendered Notes is pursuant to an offshore transaction in accordance with Rule 904 of Regulation S under the Securities Act; or | |
| ¨ | The transfer of the Surrendered Notes is pursuant to another available exemption from the registration requirement of the Securities Act. |
and unless the box below is checked, the undersigned confirms that, to the undersigned’s knowledge, such Notes are not being transferred to an “affiliate” of the Company as defined in Rule 144 under the Securities Act (an “Affiliate”).
| ¨ | The transferee is an Affiliate of the Company. |
| DATE: | |||
| Signature(s) |
(If the registered owner is a corporation,
partnership or
fiduciary, the title of the Person signing on behalf of
such registered owner must be stated.)
B-1-1
EXHIBIT B-2
Form of Letter to be Delivered by Accredited Investors
Cox Communications, Inc.
1400 Lake Hearn Drive, NE
Atlanta, Georgia 30319
Attention: Treasurer
The Bank of New York Mellon Trust Company, N.A., as Registrar
100 Ashford Center North, Suite 520
Atlanta, Georgia 30338
Attention: Corporate Trust Office
Dear Sirs:
We are delivering this letter in connection with the proposed transfer of $ .principal amount of the 8.375% Notes due 2039 (the “Notes”) of Cox Communications, Inc. (the “Company”).
We hereby confirm that:
(i) we are an “accredited investor” within the meaning of Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act of 1933, as amended (the “Securities Act”), or an entity in which all of the equity owners are accredited investors within the meaning of Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act (an “Institutional Accredited Investor”);
(ii) (A) the purchase of Notes by us is for our own account or for the account of one or more other Institutional Accredited Investors or as fiduciary for the account of one or more trusts, each of which is an “accredited investor” within the meaning of Rule 501(a)(7) under the Securities Act and for each of which we exercise sole investment discretion or (B) we are a “bank,” within the meaning of Section 3(a)(2) of the Securities Act, or a “savings and loan association” or other institution described in Section 3(a)(5)(A) of the Securities Act that is acquiring Notes as fiduciary for the account of one or more institutions for which we exercise sole investment discretion;
(iii) we will acquire Notes having a minimum principal amount of not less than $100,000 for our own account or for any separate account for which we are acting;
(iv) we have such knowledge and experience in financial and business matters that we are capable of evaluating the merits and risks of purchasing Notes; and
(v) we are not acquiring Notes with a view to distribution thereof or with any present intention of offering or selling Notes, except as permitted below; provided that the disposition of our property and property of any accounts for which we are acting as fiduciary shall remain at all times within our control.
B-2-1
We understand that the Notes were originally offered and sold in a transaction not involving any public offering within the United States within the meaning of the Securities Act and that the Notes have not been registered under the Securities Act, and we agree, on our own behal f and on behalf of each account for which we acquire any Notes, that we will offer, sell or otherwise transfer such Notes, or any beneficial interest therein, prior to the end of the period (the “Resale Restriction Period”) from the date of original issuance until (a) the date that is one year after the later of (x) the date of the original issuance of the Notes or (y) the last day on which the Issuer or any of its Affiliates was the owner of the Notes, and (b) such later date, if any, as may be required by applicable laws only:
(1) to the Company or any subsidiary thereof, or
(2) for as long as the Notes are eligible for resale pursuant to Rule 144A, to a person we reasonably believe is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) that purchases for its own account or for the account of a qualified institutional buyer to which notice is given that the transfer is being made in reliance on Rule 144A, or
(3) to an Institutional Accredited Investor that is acquiring the Note for its own account, or for the account of such Institutional Accredited Investor for investment purposes and not with a view to, or for offer or sale in connection with, any distribution in violation of the Securities Act, or
(4) pursuant to a registration statement which has been declared effective under the Securities Act, or
(5) outside the United States to non-U.S. persons in an offshore transaction in accordance with Rule 903 or 904 of Regulation S under the Securities Act, or
(6) pursuant to another available exemption from registration under the Securities Act, including under Rule 144, if available, and, in each case, in accordance with any applicable securities laws of any State of the United States or any other applicable jurisdiction and in accordance with and subject to the legends set forth on the Notes.
We acknowledge that the Company, others and you will rely upon our confirmations, acknowledgments and agreements set forth herein, and we agree to notify you promptly in writing if any of our representations or warranties herein ceases to be accurate and complete.
THIS LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK.
| (Name of Purchaser) | |||
| By: | |||
| Name: | |||
| Title: | |||
| Address: | |||
B-2-2
Exhibit 4.10
EXECUTION VERSION
COX COMMUNICATIONS, INC.
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
as Trustee
TWELFTH SUPPLEMENTAL INDENTURE
Dated as of November 29, 2012
Supplement to Indenture
Dated as of June 27, 1995
Creating two series of Debt Securities designated
3.25% Notes due 2022
4.70% Notes due 2042
TWELFTH SUPPLEMENTAL INDENTURE, dated as of the 29th day of November, 2012 between COX COMMUNICATIONS, INC., a corporation existing under the laws of the State of Delaware, having its principal executive office located at 1400 Lake Hearn Drive, NE, Atlanta, Georgia 30319 (the “Company”), and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., a national banking association, having a designated corporate trust office located at 900 Ashwood Parkway, Suite 425, Atlanta, Georgia 30338, as trustee (the “Trustee”);
WHEREAS, the Company has heretofore executed and delivered to the Trustee an Indenture, dated as of June 27, 1995 (the “Original Indenture” and, as amended by this Supplemental Indenture, the “Indenture”), providing for the issuance by the Company from time to time of its debentures, notes, bonds or other evidences of indebtedness (in the Original Indenture and herein called the “Debt Securities”), unlimited as to principal amount, to be issued in one or more series;
WHEREAS, the Company, in the exercise of the power and authority conferred upon and reserved to it under the provisions of the Original Indenture and pursuant to appropriate resolutions of the Board of Directors, has duly determined to make, execute and deliver to the Trustee this Supplemental Indenture to the Original Indenture in order to establish the form and terms of, and to provide for the creation and issuance of, two new series of Debt Securities designated as the “3.25% Notes due 2022” in the initial aggregate principal amount of $1,000,000,000 (the “2022 Notes”) and the “4.70% Notes due 2042” in the initial aggregate principal amount of $500,000,000 (the “2042 Notes” and, together with the 2022 Notes, the “Notes”);
WHEREAS, Section 9.01 of the Original Indenture provides, among other things, that the Company and the Trustee, at any time and from time to time, without the consent of any Holders, may enter into an indenture supplemental to the Original Indenture to establish the form or terms of Debt Securities of any series as permitted by Sections 2.01 and 2.03 of the Original Indenture;
WHEREAS, all things necessary to make the Notes, when executed by the Company and authenticated and delivered by the Trustee and issued upon the terms and subject to the conditions hereinafter and in the Original Indenture set forth against payment therefor, the valid, binding and legal obligations of the Company and to make this Supplemental Indenture a valid, binding and legal agreement of the Company, have been done;
NOW, THEREFORE, THIS TWELFTH SUPPLEMENTAL INDENTURE WITNESSETH that, in order to establish the form and terms of the series of Debt Securities designated as the “3.25% Notes due 2022” and the “4.70% Notes due 2042” and for and in consideration of the premises and of the covenants contained in the Original Indenture and in this Supplemental Indenture and for other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of the Notes, as follows:
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ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101 Definitions. For all purposes of the Original Indenture and this Supplemental Indenture relating to the series of Debt Securities (consisting of the Notes) created hereby, except as otherwise expressly provided or unless the context otherwise requires, the terms defined in this Article have the meanings assigned to them in this Article. Each capitalized term that is used in the Original Indenture and this Supplemental Indenture but not defined herein shall have the meaning specified in the Original Indenture.
“Agent Members” has the meaning specified in Section 209(e)(v).
“Applicable Procedures” means, with respect to any transfer or transaction involving a Global Note or beneficial interest therein, the rules and procedures of the Depositary for such Note, in each case to the extent applicable to such transaction and as in effect from time to time.
“Business Day” means any day other than a Saturday, a Sunday or a legal holiday or a day on which banking institutions or trust companies in The City of New York are authorized or obligated by law to close.
“cash” means U.S. legal tender.
“Certificated Notes” means the notes required to bear the Legend set forth on the form of the Notes attached as Exhibits A-1 and A-2 to this Supplemental Indenture.
“Clearstream” means Clearstream Banking, société anonyme (formerly Cedelbank).
“Comparable Treasury Issue” means, with respect to the Notes subject to redemption, the United States Treasury securities (in the case of a redemption of either or both of the 2022 Notes and 2042 Notes) selected by the Quotation Agent as having an actual or interpolated maturity or maturities, as the case may be, comparable to the remaining life of the Notes to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity with the remaining life of the Notes to be redeemed.
“Comparable Treasury Price” means, with respect to any Redemption Date, the average of five Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and lowest of such Reference Treasury Dealer Quotations, or, if the Quotation Agent obtains fewer than four such Reference Treasury Dealer Quotations, the average of all such quotations.
“Debt Securities” has the meaning specified in the first recital hereof.
“Depositary” means, with respect to the Notes issuable in whole or in part in global form, DTC and any nominee thereof, until a successor shall have been appointed and become such pursuant to the applicable provisions of the Indenture, and thereafter “Depositary” shall mean or include such successor and any nominee thereof.
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“DTC” means The Depository Trust Company. “Euroclear” means the Euroclear System.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Global Note” means a Note issued in global form and deposited with or on behalf of the Depositary.
“Holder” and “Noteholder,” in the case of any Note, means the Person in whose name such Note is registered in the Debt Security Register.
“Institutional Accredited Investor” means an institutional “accredited investor” as defined in Rule 50l (a)(1), (2), (3) and (7) under the Securities Act.
“Interest Payment Date,” in respect of any Note, has the meaning assigned to it in such Note.
“Issue Date” means November 29, 2012.
“Legend” has the meaning specified in Section 207(c).
“Notes” has the meaning specified in the recitals hereof.
“Purchase Agreement” means the Purchase Agreement dated November 26, 2012, among the Company and J.P. Morgan Securities LLC, Wells Fargo Securities, LLC, Barclays Capital Inc. and Citigroup Global Markets Inc. acting as representatives on behalf of the Initial Purchasers (as defined therein).
“Qualified Institutional Buyer” has the meaning specified in Rule 144A.
“Quotation Agent” means the Reference Treasury Dealer appointed by the Company.
“Redemption Date,” with respect to any 2022 Note or 2042 Note or portion thereof to be redeemed, means the date fixed for redemption in accordance with the terms of the Notes and Article III of the Original Indenture.
“Redemption Price,” with respect to any 2022 Note or 2042 Note or portion thereof to be redeemed, means the greater of:
(a) 100% of the principal amount of the Notes or portion thereof, as applicable, to be redeemed; or
(b) the sum, as determined by the Quotation Agent, of the present values of the principal amount and the remaining scheduled payments of interest on such Notes or portion thereof, as applicable, to be redeemed (exclusive of interest accrued to the Redemption Date), in each case, discounted from their respective scheduled payment dates to the Redemption Date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 25 basis points, in the case of the 2022 Notes, and 30 basis points, in the cases of the 2042 notes, as the case may be, plus, in either case, accrued and unpaid interest thereon to the Redemption Date.
4
“Reference Treasury Dealer” means J.P. Morgan Securities LLC, a primary Treasury dealer selected by Wells Fargo Securities, LLC, Barclays Capital Inc. and Citigroup Global Markets Inc., and each of their respective successors; provided, however, that if any of the foregoing shall cease to be a primary Treasury dealer, the Company will substitute another primary Treasury dealer.
“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and any Redemption Date, the average, as determined by the Quotation Agent, of the bid and asked prices for the Comparable Treasury Issue, expressed in each case as a percentage of its principal amount, quoted in writing to the Quotation Agent by such Reference Treasury Dealer at 3:30 p.m., New York City time, on the third Business Day preceding such Redemption Date.
“Regulation S” means Regulation S under the Securities Act.
“Regulation S Global Note” means a Global Note in the form of the Notes attached hereto as Exhibits A-1 and A-2, and that is deposited with and registered in the name of the Depositary, representing Notes sold in offshore transactions in reliance on Regulation S.
“Resale Restriction Termination Period” means the period from the Issue Date until (1) the date that is one year after the later of (a) the date of the original issuance of such Notes or (b) the last day on which the Company or any of its Affiliates was the owner of the Notes, and (2) such later date, if any, as may be required by applicable laws.
“Restricted Note” means a Note required to bear the restrictive legends set forth on the form of Note attached as Exhibits A-1 and A-2 to this Supplemental Indenture.
“Rule 144A” means Rule 144A under the Securities Act (or any successor provision), as it may be amended from time to time.
“SEC” means the U.S. Securities and Exchange Commission.
“Securities Act” means the Securities Act of 1933, as amended.
“Supplemental Indenture” means this Twelfth Supplemental Indenture.
“Treasury Rate” has the meaning assigned to it in the Notes.
“Trustee” has the meaning specified in the first paragraph hereof.
5
“US Global Note” means a Global Note in the form of the Notes attached hereto as Exhibits A-1 and A-2 to this Supplemental Indenture, and that is deposited with and registered in the name of the Depositary, representing Notes sold in reliance on Rule 144A.
SECTION 102 Section References. Each reference to a particular section set forth in this Supplemental Indenture shall, unless the context otherwise requires, refer to this Supplemental Indenture.
ARTICLE 2
THE NOTES
SECTION 201 Title of the Notes. The Notes shall be known and designated as the “3.25% Notes due 2022” and the “4.70% Notes due 2042” of the Company, respectively.
SECTION 202 Amount. The aggregate principal amount of Notes that may be authenticated and delivered under this Supplemental Indenture is initially limited to $1,000,000,000 for the 2022 Notes and $500,000,000 for the 2042 Notes, except for Notes authenticated and delivered upon registration of, transfer of, or exchange for, or in lieu of, other Notes pursuant to Section 2.07, 2.08, 2.09 or 9.04 of the Indenture, or upon repayment in part of any 2022 Note or 2042 Note pursuant to Article III of the Original Indenture. The Company may, from time to time, subject to compliance with any other applicable provisions of this Twelfth Supplemental Indenture but without the consent of the Holders, create and issue pursuant to this Twelfth Supplemental Indenture an unlimited principal amount of additional Notes (in excess of any amounts theretofore issued) having the same terms and conditions to those of the other outstanding Notes, except that any such additional Notes (i) may have a different issue date and issue price from other outstanding Notes and (ii) may have a different amount of interest payable on the first Interest Payment Date after issuance than the amount payable on other outstanding Notes.
SECTION 203 Stated Maturity. The Stated Maturity of the 2022 Notes shall be December 15, 2022. The Stated Maturity of the 2042 Notes shall be December 15, 2042.
SECTION 204 Interest.
(a) The 2022 Notes shall bear cash interest at the rate of 3.25% from November 29, 2012 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, payable semiannually on June 15 and December 15 of each year, beginning on June 15, 2013, to the Persons in whose names such Notes are registered at the close of business on the immediately preceding June 1 or December 1, as the case may be, whether or not a Business Day. Interest on the 2022 Notes will be computed on the basis of a 360-day year of twelve 30-day months.
(b) The 2042 Notes shall bear cash interest at the rate of 4.70% from November 29, 2012 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, payable semiannually on June 15 and December 15 of each year, beginning on June 15, 2013, to the Persons in whose names such Notes are registered at the close of business on the immediately preceding June 1 or December 1, as the case may be, whether or not a Business Day. Interest on the 2042 Notes will be computed on the basis of a 360-day year of twelve 30-day months.
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SECTION 205 Payments.
(a) Payments of principal, premium, if any, and interest on the Notes will be made to the Depositary, or its nominee, as the case may be, as the registered owner and holder of the Global Notes representing the Notes. In the event that the Notes are issued in the form of Certificated Notes, payments of principal, premium, if any, and interest thereon will be at the office or agency of the Trustee in The City of New York designated for such purpose, provided that payment of interest, other than interest payable at Stated Maturity or upon redemption, may be made at the option of the Company by check mailed by the Trustee to the address of the Person entitled as shown on the Debt Security Register.
(b) If any Stated Maturity Date, Redemption Date or Interest Payment Date, falls on a day that is not a Business Day, the required payment shall be made on the next Business Day, and no interest shall accrue on the amount so payable for the period between such payment date and the next Business Day.
(c) Payments of principal, premium, if any, and interest on the Notes shall be made in cash or such other coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debt.
SECTION 206 Redemption. Each series of Notes shall be redeemable, in whole or in part, on one or more Redemption Dates at the applicable Redemption Price. If the Redemption Date is not an Interest Payment Date, the amount of the scheduled interest payment on the next succeeding Interest Payment Date will be reduced by the amount of interest accrued to the Redemption Date.
SECTION 207 Forms; Denominations. The Notes shall be Registered Securities. The Global Notes representing the Notes shall be in substantially the forms attached hereto as Exhibits A-1 and A-2.
The Notes are being offered and sold by the Company pursuant to the Purchase Agreement.
(a) Global Notes. (i) Notes offered and sold in reliance on Rule 144A as provided in the Purchase Agreement shall be issued initially in the form of one or more US Global Notes in definitive fully registered form without interest coupons, deposited on behalf of the subscribers for the Notes represented thereby with the Trustee, as custodian for the Depositary and registered in the name of DTC or a nominee thereof, duly executed by the Company and authenticated by the Trustee as provided in the Indenture. The aggregate principal amount of the US Global Notes may from time to time be increased or decreased by adjustments made on the records of the Trustee and the Depositary as hereinafter provided.
Notes offered and sold in offshore transactions in reliance on Regulation S as provided in the Purchase Agreement shall be issued initially in the form of one or more Regulation S Global Notes in definitive fully registered form without interest coupons, deposited on behalf of the subscribers for the Notes represented thereby with the Trustee, as custodian for the Depositary, for the accounts of Euroclear and Clearstream and registered in the name of DTC or a nominee thereof, duly executed by the Company and authenticated by the Trustee as hereinafter provided. The aggregate principal amount of the Regulation S Global Notes may from time to time be increased or decreased by adjustments made on the records of the Trustee and the Depositary as hereinafter provided.
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Each Global Note shall represent such of the outstanding Notes as shall be specified therein and each shall provide that it shall represent the aggregate principal amount of outstanding Notes from time to time endorsed thereon and the aggregate principal amount of outstanding Notes represented thereby may from time to time be reduced to reflect exchanges or redemptions. Any adjustment of the aggregate principal amount of a Global Note representing the Notes to reflect the amount of any decrease in the principal amount of outstanding Notes represented thereby shall be made by the Trustee in accordance with instructions given by the Holder thereof as required by Section 209 hereof and shall be made on the records of the Trustee and the Depositary.
(ii) Book-Entry Provisions. This Section 207(a)(ii) shall apply only to Global Notes.
The Company shall execute and the Trustee shall, in accordance with this Section 207(a)(ii) and Section 2.02 of the Indenture, authenticate and deliver initially one or more Global Notes that (a) shall be registered in the name of the Depositary, (b) shall be delivered by the Trustee to the Depositary or pursuant to the Depositary’s instructions and (c) shall bear legends substantially to the following effect:
“UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON 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.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS, IN WHOLE BUT NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN ARTICLE TWO OF THE TWELFTH SUPPLEMENTAL INDENTURE REFERRED TO ON THE REVERSE HEREOF.”
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(b) Certificated Notes. Except as otherwise set forth in this Supplemental Indenture, owners of beneficial interests in Global Notes will not be entitled to receive physical delivery of Certificated Notes. Beneficial interests in a Global Note transferred in accordance with Section 209(a)(ii) to an Institutional Accredited Investor who is not a Qualified Institutional Buyer and beneficial interests in a Global Note transferred to the beneficial holders thereof pursuant to Section 209(e) will be issued in certificated, registered form without interest coupons.
(c) Restrictive Legends. Until the completion of the Resale Restriction Termination Period, all Global Notes and all Certificated Notes shall bear a legend (the “Legend”) in substantially the following form, unless such Notes have been sold pursuant to a registration statement that has been declared effective under the Securities Act:
“THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933 (THE “SECURITIES ACT”) AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED PRIOR TO THE END OF THE PERIOD (THE “RESALE RESTRICTION PERIOD”) FROM THE DATE OF ORIGINAL ISSUANCE UNTIL (A) THE DATE THAT IS ONE YEAR AFTER THE LATER OF (X) THE DATE OF THE ORIGINAL ISSUANCE OF THE NOTES OR (Y) THE LAST DAY ON WHICH THE ISSUER OR ANY OF ITS AFFILIATES WAS THE OWNER OF THE NOTES, AND (B) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAWS, EXCEPT (1) TO THE ISSUER, (2) TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (3) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (4) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT (IF AVAILABLE), (5) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE 501 (a)(l), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS AN INSTITUTIONAL ACCREDITED INVESTOR ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF THE SECURITIES OF $100,000, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (6) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (4) OR (5) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION PERIOD.”
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SECTION 208 Transfer and Exchange.
(a) Notwithstanding any provision to the contrary herein, so long as a Global Note remains outstanding and is held by or on behalf of the Depositary, transfers of a Global Note, in whole or in part, shall be made only in accordance with Section 209 and this Section 208.
(b) Transfers of a Global Note shall be limited to transfers of such Global Note in whole, or in part, to nominees of the Depositary or to a successor of the Depositary or such successor’s nominee.
(c) If Notes are issued upon the transfer, exchange or replacement of Notes subject to restrictions on transfer and bearing the Legend, or if a request is made to remove the Legend on a Note, the Notes so issued shall bear the Legend, or the Legend shall not be removed, as the case may be, unless there is delivered to the Company and the Registrar such satisfactory evidence, which shall include an opinion of counsel, as may be reasonably required by the Company and the Registrar, that neither the Legend nor the restrictions on transfer set forth therein are required to ensure that transfers thereof comply with the provisions of Rule 144A, Rule 144 or Regulation S under the Securities Act, that such Notes are not “restricted” within the meaning of Rule 144 under the Securities Act or that any such exchange or replacement Notes have been issued in a registered transaction under the Securities Act. Upon (i) provision of such satisfactory evidence, or (ii) notification by the Company to the Trustee and the Registrar of the sale or exchange of such Notes pursuant to a registration statement that is effective at the time of such sale, the Trustee, at the written direction of the Company, shall authenticate and deliver a Note that does not bear the Legend. If the Legend is removed from the face of a Note and the Note is subsequently held by an Affiliate of the Company, the Legend shall be reinstated.
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The Trustee and the Registrar shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Supplemental Indenture or under applicable law with respect to any transfer of any interest in any Note (including transfers between or among the Depositary’s participants or beneficial owners of interest in any Global Note) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Supplemental Indenture and to examine the same to determine substantial compliance as to form with the express requirements hereof.
SECTION 209 Global Notes.
(a) Notwithstanding any other provisions of this Supplemental Indenture or the Notes, (A) transfers of a Global Note, in whole or in part, shall be made only in accordance with Section 2.07 of the Indenture and Sections 208 and 209(a)(i) below, (B) transfer of a beneficial interest in a Global Note for a Certificated Note shall comply with Section 2.07 of the Indenture and Section 209(a)(ii) below, (C) transfers of a beneficial interest in a Regulation S Global Note for a beneficial interest in a U.S. Global Note shall comply with Section 2.07 of the Indenture and Section 209(a)(iii) below, and (D) transfers of a Certificated Note shall comply with Section 2.07 of the Indenture and Sections 209(a)(iv) and (v) below.
(i) Transfer of Global Note. A Global Note may not be transferred, in whole or in part, to any Person other than the Depositary or a nominee thereof, and no such transfer to any such other Person may be registered; provided that this clause (i) shall not prohibit any transfer of a Note that is issued in exchange for a Global Note but is not itself a Global Note. No transfer of a Note to any Person shall be effective under the Indenture or the Notes unless and until such Note has been registered in the name of such Person. Nothing in this Section 209(a)(i) shall prohibit or render ineffective any transfer of a beneficial interest in a Global Note effected in accordance with the other provisions of this Section 209(a).
(ii) Restrictions on Transfer of a Beneficial Interest in a Global Note for a Certificated Note. A beneficial interest in a Global Note may not be exchanged for a Certificated Note except upon satisfaction of the requirements set forth below. Upon receipt by the Trustee of a request for transfer of a beneficial interest in a Global Note in accordance with Applicable Procedures for a Certificated Note in the form satisfactory to the Trustee, together with:
(a) so long as the Notes are Restricted Notes, certification, in the form set forth in Exhibit B-1 attached hereto, and, if requested by the Company or the Registrar, certification in the form set forth in Exhibit B-2 attached hereto, that such beneficial interest in the Global Note is being transferred to an Institutional Accredited Investor;
(b) written instructions to the Trustee to make, or direct the Registrar to make, an adjustment on its books and records with respect to such Global Note to reflect a decrease in the aggregate principal amount of the Notes represented by the Global Note, such instructions to contain information regarding the Depositary account to be credited with such decrease; and
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(c) if the Company or Registrar so requests, an opinion of counsel or other evidence reasonably satisfactory to them as to compliance with the restrictions set forth in the Legend,
then the Trustee shall cause, or direct the Registrar to cause, in accordance with the standing instructions and procedures existing between the Depositary and the Registrar, the aggregate principal amount of Notes represented by the Global Note to be decreased by the aggregate principal amount of the Certificated Note to be issued, shall issue such Certificated Note and shall debit or cause to be debited to the account of the Person specified in such instructions a beneficial interest in the Global Note equal to the principal amount of the Certificated Note so issued.
(iii) Restrictions on Transfer of Beneficial Interest in a Regulation S Global Note for a Beneficial Interest in a US Global Note.
(a) On or prior to the 40th day after the later of the commencement of the offering of the Notes represented by the Regulation S Global Note and the issue date of such Notes (such period through and including such 40th day, the “Restricted Period”), a beneficial interest in a Regulation S Global Note may be transferred to a Person who takes delivery in the form of an interest in the corresponding US Global Note only upon receipt by the Trustee of a written certification from the transferor to the effect that such transfer is being made (i)(a) to a Person whom the transferor reasonably believes is a Qualified Institutional Buyer in a transaction meeting the requirements of Rule 144A or (b) pursuant to another exemption from the registration requirements under the Securities Act which is accompanied by an Opinion of Counsel regarding the availability of such exemption and (ii) in accordance with all applicable securities laws of any state of the United States or any other jurisdiction.
(b) Beneficial interests in the US Global Note may be transferred to a Person who takes delivery in the form of an interest in the Regulation S Global Note, whether before or after the expiration of the Restricted Period, only if the transferor first delivers to the Trustee a written certificate to the effect that such transfer is being made in accordance with Rule 903 or 904 of Regulation S or Rule 144 (if available).
(iv) Transfer and Exchange of Certificated Notes. When Certificated Notes are presented to the Registrar with a request:
(x) to register the transfer of such Certificated Notes; or
(y) to exchange such Certificated Notes for an equal principal amount of Certificated Notes of other authorized denominations,
12
the Registrar shall register the transfer or make the exchange as requested if its reasonable requirements for such transaction are met; provided, however, that the Certificated Notes surrendered for transfer or exchange:
(a) shall be duly endorsed or accompanied by a written instrument of transfer in form reasonably satisfactory to the Company and the Registrar, duly executed by the Holder thereof or his attorney duly authorized in writing; and
(b) so long as such Notes are Restricted Notes, such Notes are being transferred or exchanged pursuant to clause (A), (B) or (C) below, and are accompanied by the following additional information and documents, as applicable:
(A) if such Certificated Notes are being delivered to the Registrar by a Holder for registration in the name of such Holder, without transfer, a certification from such Holder to that effect; or
(B) if such Certificated Notes are being transferred to the Company, a certification to that effect; or
(C) if such Certificated Notes are being transferred pursuant to an exemption from registration, (i) a certification to that effect (in the form set forth in Exhibit B-1 and B-2, if applicable) and (ii) if the Company or Registrar so requests, an opinion of counsel or other evidence reasonably satisfactory to them as to the compliance with the restrictions set forth in the Legend.
(v) Restrictions on Transfer of a Certificated Note for a Beneficial Interest in a Global Note. A Certificated Note may not be exchanged for a beneficial interest in a Global Note except upon satisfaction of the requirements set forth below.
Upon receipt by the Trustee of a Certificated Note, duly endorsed or accompanied by appropriate instruments of transfer, in form satisfactory to the Trustee, together with:
(a) so long as the Notes are Restricted Notes, certification, in the form set forth in Exhibit B-1, that such Certificated Note is being transferred to a Qualified Institutional Buyer in accordance with Rule 144A; and
(b) written instructions directing the Trustee to make, or to direct the Registrar to make, an adjustment on its books and records with respect to such Global Note to reflect an increase in the aggregate principal amount of the Notes represented by the Global Note, such instructions to contain information regarding the Depositary account to be credited with such increase,
then the Trustee shall cancel such Certificated Note and cause, or direct the Registrar to cause, in accordance with the standing instructions and procedures existing between the Depositary and the Registrar, the aggregate principal amount of Notes represented by the Global Note to be increased by the aggregate principal amount of the Certificated Note to be exchanged, and shall credit or cause to be credited to the account of the Person specified in such instructions a beneficial interest in the Global Note equal to the principal amount of the Certificated Note so cancelled. If no Global Notes are then outstanding, the Company shall issue and the Trustee shall authenticate, upon receipt of a Company Order, a new Global Note in the appropriate principal amount.
13
(b) Subject to the succeeding paragraph, every Note shall be subject to the restrictions on transfer provided in the Legend including the delivery of an opinion of counsel, if so provided. Whenever any Restricted Note is presented or surrendered for registration of transfer or for exchange for a Note registered in a name other than that of the Holder, such Note must be accompanied by a certificate in substantially the form set forth in Exhibit B-1, dated the date of such surrender and signed by the Holder of such Note, as to compliance with such restrictions on transfer. The Registrar shall not be required to accept for such registration of transfer or exchange any Note not so accompanied by a properly completed certificate.
(c) The restrictions imposed by the Legend upon the transferability of any Note shall cease and terminate when such Note has been sold or exchanged pursuant to an effective registration statement under the Securities Act or may be transferred in compliance with Rule 144 under the Securities Act (or any successor provision thereto). Any Note as to which such restrictions on transfer shall have expired in accordance with their terms or shall have terminated may, upon a surrender of such Note for exchange to the Registrar in accordance with the provisions of this Section 209 (accompanied, in the event that such restrictions on transfer have terminated by reason of a transfer in compliance with Rule 144 or any successor provision, by an opinion of counsel having substantial experience in practice under the Securities Act and otherwise reasonably acceptable to the Company, addressed to the Company, the Trustee and the Registrar and in form acceptable to the Company, to the effect that the transfer of such Note has been made in compliance with Rule 144 or such successor provision), be exchanged for a new Note, of like tenor and aggregate principal amount, which shall not bear the restrictive Legend. The Company shall inform the Trustee of the effective date of any registration statement registering the Notes under the Securities Act. The Trustee shall not be liable for any action taken or omitted to be taken by it in good faith in accordance with the aforementioned opinion of counsel.
(d) As used in the preceding two paragraphs of this Section 209, the term “transfer” encompasses any sale, pledge, transfer, hypothecation or other disposition of any Note.
(e) The provisions of clauses (i), (ii), (iii), (iv), and (v) below shall apply only to Global Notes:
(i) Notwithstanding any other provisions of the Indenture or the Notes, except as provided in Section 209(a)(ii), a Global Note shall not be exchanged in whole or in part for a Note registered in the name of any Person other than the Depositary or one or more nominees thereof, provided that a Global Note may be exchanged for Notes registered in the names of any Person designated by the Depositary in the event that (i) the Depositary has notified the Company that it is unwilling or unable to continue as depositary for such Global Note or the Depositary has ceased to be a “clearing agency” registered under the Exchange Act, and a successor Depositary is not appointed by the Company within 90 days or (ii) an Event of Default has occurred and is continuing with respect to the Notes. Any Global Note exchanged pursuant to clause (i) above shall be so exchanged in whole and not in part, and any Global Note exchanged pursuant to clause (ii) above may be exchanged in whole or from time to time in part as directed by the Depositary. In the event that Certificated Notes are issued in respect of beneficial interests in a Regulation S Global Note at any time prior to one year after the date of this Supplemental Indenture (other than in a transaction subject to Rule 144A), the Company shall as promptly as practicable, institute procedures, including appropriate certifications, reasonably designed to ensure that any transfer of such Certificated Notes prior to the end of such one year is made only in accordance with the provisions of Regulation S, pursuant to registration under the Securities Act or pursuant to an exemption from such registration.
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(ii) Notes issued in exchange for a Global Note or any portion thereof shall be issued in definitive, fully registered form, without interest coupons, shall have an aggregate principal amount equal to that of such Global Note or portion thereof to be so exchanged, shall be registered in such names and be in such authorized denominations as the Depositary shall designate and shall bear the Legend. Any Global Note to be exchanged in whole shall be surrendered by the Depositary to the Trustee, as Registrar. With regard to any Global Note to be exchanged in part, either such Global Note shall be so surrendered for exchange or, if the Trustee is acting as custodian for the Depositary or its nominee with respect to such Global Note, the principal amount thereof shall be reduced, by an amount equal to the portion thereof to be so exchanged, by means of an appropriate adjustment made on the records of the Trustee. Upon any such surrender or adjustment, the Trustee shall authenticate and deliver the Note issuable on such exchange to or upon the order of the Depositary or an authorized representative thereof.
(iii) Subject to the provisions of clause (v) below, the registered Holder may grant proxies and otherwise authorize any Person, including Agent Members (as defined below) and Persons that may hold interests through Agent Members, to take any action which a Holder is entitled to take under the Indenture or the Notes.
(iv) In the event of the occurrence of any of the events specified in clause (i) above, the Company will promptly make available to the Trustee a reasonable supply of Certificated Notes.
(v) Neither any members of, or participants in, the Depositary (collectively, the “Agent Members”) nor any other Persons on whose behalf Agent Members may act shall have any rights under the Indenture with respect to any Global Note registered in the name of the Depositary or any nominee thereof, or under any such Global Note, and the Depositary or such nominee, as the case may be, may be treated by the Company, the Trustee and any agent of the Company or the Trustee as the absolute owner and holder of such Global Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee or any agent of the Company or the Trustee from giving effect to any written certification, proxy or other authorization furnished by the Depositary or such nominee, as the case may be, or impair, as between the Depositary, its Agent Members and any other Person on whose behalf an Agent Member may act, the operation of customary practices of such Persons governing the exercise of the rights of a Holder of any Note.
15
SECTION 210 Event of Default. For purposes of this Twelfth Supplemental Indenture and the Notes issued hereunder, Section 6.01 of the Original Indenture is hereby amended by deleting the clause immediately following subsection (i) in the first sentence of such Section and inserting in its place the following:
“then and in each and every case that an Event of Default described in clause (a), (b), (c), (d), (e), (f), (g) (with respect to Restricted Subsidiaries only), (h) (with respect to Restricted Subsidiaries only) or (i) with respect to Debt Securities of that series at the time outstanding occurs and is continuing, unless the principal of and interest on all the Debt Securities of that series shall have already become due and payable, either the Trustee or the Holders of not less than 25% in aggregate principal amount of the Debt Securities of that series then outstanding hereunder, by notice in writing to the Company (and to the Trustee if given by Holders), may declare the principal of (or, if the Debt Securities of that series are Original Issue Discount Debt Securities, such portion of the principal amount as may be specified in the terms of that series) and interest on all the Debt Securities of that series to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything in this Indenture or in the Debt Securities or Coupons appertaining thereto of that series contained to the contrary notwithstanding.”
ARTICLE 3
REPORTS BY THE COMPANY
So long as any of the Debt Securities are “restricted securities” within the meaning of Rule 144(a)(3) under the Securities Act, the Company will, during any period in which it is not subject to Sections 13 or 15(d) of the Exchange Act or it is not exempt from such reporting requirements pursuant to and in compliance with Rule 12g3-2(b) under the Exchange Act, provide to each Holder of Notes and to each prospective purchaser (as designated by such Holder) of Notes, upon the request of such Holder or prospective purchaser, any information required to be provided by Rule 144A(d)(4) under the Securities Act.
ARTICLE 4
MISCELLANEOUS PROVISIONS
The Trustee makes no undertaking or representations in respect of, and shall not be responsible in any manner whatsoever for and in respect of, the validity or sufficiency of this Supplemental Indenture or the proper authorization or the due execution hereof by the Company or for or in respect of the recitals and statements contained herein, all of which recitals and statements are made solely by the Company.
16
For purposes of this Supplemental Indenture and the Notes, Section 7.02 of the Original Indenture is hereby amended to include the following additional rights of the Trustee:
“(i) in no event shall the Trustee be responsible or liable for special, indirect, or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action;
(j) in no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances;
(k) the Trustee shall not be deemed to have notice of any Default or Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee at the designated corporate trust office of the Trustee, and such notice references the Notes and this Indenture;
(l) the rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder; and
(m) the Trustee may request that the Company deliver a certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture.”
The provisions of Article XI of the Original Indenture relating to defeasance shall apply to the Notes.
Except as expressly amended hereby, the Original Indenture shall continue in full force and effect in accordance with the provisions thereof, and the Original Indenture is in all respects hereby ratified and confirmed. This Supplemental Indenture and all its provisions shall be deemed a part of the Original Indenture in the manner and to the extent herein and therein provided.
This Supplemental Indenture shall be governed by, and construed in accordance with, the laws of the State of New York.
This Supplemental Indenture may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.
17
EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS SUPPLEMENTAL INDENTURE, THE NOTES OR THE TRANSACTION CONTEMPLATED HEREBY.
[SIGNATURE PAGES FOLLOW]
18
IN WITNESS WHEREOF, the Parties have executed this Twelfth Supplemental Indenture by their duly authorized signatories as of the date first above written.
| COX COMMUNICATIONS, INC. | ||
| By: | /s/ Mark F.Bowser | |
| Mark F.Bowser | ||
| Executive Vice President | ||
| and Chief Financial Officer | ||
| By: | /s/ Katherine K. Decker | |
| Katherine K. Decker | ||
| Vice President and Treasurer |
| THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee | |||
| By: | /s/ R. Tarnas | ||
| Name: | R. Tarnas | ||
| Title: | Vice President | ||
Twelfth Supplemental Indenture Signature Page
EXHIBIT A-1
[FORM OF FACE OF SECURITY]
[TRANSFER RESTRICTED LEGEND]
[THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933 (THE “SECURITIES ACT”) AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED PRIOR TO THE END OF THE PERIOD (THE “RESALE RESTRICTION PERIOD”) FROM THE DATE OF ORIGINAL ISSUANCE UNTIL (A) THE DATE THAT IS ONE YEAR AFTER THE LATER OF (X) THE DATE OF THE ORIGINAL ISSUANCE OF THE NOTES OR (Y) THE LAST DAY ON WHICH THE ISSUER OR ANY OF ITS AFFILIATES WAS THE OWNER OF THE NOTES, AND (B) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAWS, EXCEPT (1) TO THE ISSUER, (2) TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (3) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (4) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT (IF AVAILABLE), (5) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE 501 (a)(l), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS AN INSTITUTIONAL ACCREDITED INVESTOR ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF THE SECURITIES OF $100,000, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (6) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (4) OR (5) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION PERIOD.]
[GLOBAL NOTES LEGEND]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON 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.
A-1
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS, IN WHOLE BUT NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN ARTICLE TWO OF THE TWELFTH SUPPLEMENTAL INDENTURE REFERRED TO ON THE REVERSE HEREOF.]
[REGULATION S GLOBAL NOTES LEGEND]
[THIS GLOBAL NOTE IS A TEMPORARY GLOBAL NOTE FOR PURPOSES OF REGULATION S UNDER THE SECURITIES ACT. NEITHER THIS TEMPORARY GLOBAL NOTE NOR ANY INTEREST HEREIN MAY BE OFFERED, SOLD OR DELIVERED, EXCEPT AS PERMITTED UNDER THE INDENTURE REFERRED TO BELOW.
NO BENEFICIAL OWNERS OF THIS TEMPORARY GLOBAL NOTE SHALL BE ENTITLED TO RECEIVE PAYMENT OF PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED CERTIFICATIONS HAVE BEEN DELIVERED PURSUANT TO THE TERMS OF THE INDENTURE.]
A-2
| No. R- | PRINCIPAL AMOUNT |
| CUSIP No. | $ |
COX COMMUNICATIONS, INC.
3.25% Notes due 2022
COX COMMUNICATIONS, INC., a Delaware corporation (hereinafter called the “Company,” which term includes any successor corporation under the Indenture referred to below), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of [ ] ($ ) on December 15, 2022 (the “Maturity Date”), unless previously redeemed, and to pay interest thereon from November 29, 2012 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, payable semiannually on June 15 and December 15 in each year (each, an “Interest Payment Date”), commencing June 15, 2013, at the rate of 3.25% per annum, until the principal hereof is paid or duly made available for payment. Interest shall be computed on the basis of a 360-day year of twelve 30-day months. The interest so payable and punctually paid or duly provided for on any Interest Payment Date will, as provided in the Indenture, be paid to the Person in whose name this Note (or one or more predecessor securities) is registered at the close of business on the regular record date for such interest, which shall be June 1 or December 1 (whether or not a Business Day), as the case may be, immediately preceding such Interest Payment Date. Any such interest which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date shall forthwith cease to be payable to the registered Holder hereof on the relevant regular record date by virtue of having been such Holder, and may be paid to the Person in whose name this Note (or one or more predecessor securities) is registered at the close of business on a subsequent special record date (which shall be not more than 15 days and not less than 10 days before the payment date) for the payment of such defaulted interest to be fixed by the Trustee, notice whereof shall be given to the Holders of Notes of this series not less than 10 days prior to such special record date, or may be paid at any time in any other lawful manner, all as more fully provided in such Indenture. If any Interest Payment Date, Redemption Date or the Maturity Date falls on a day that is not a Business Day, the required payment shall be made on the next Business Day as if it were made on the date such payment was due and no ,interest shall accrue on the amount so payable for the period from and after such Interest Payment Date, Redemption Date or the Maturity Date, as the case may be, to such next Business Day. Payments of principal, premium, if any, and interest hereunder shall be made in such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts and shall be made immediately available to the Holder (as defined below) hereof.
This Note is one of the duly authorized series of Debt Securities of the Company, designated as the Company’s “3.25% Notes due 2022” (the “Notes”), initially limited to an aggregate principal amount of $1,000,000,000, all issued or to be issued under and pursuant to an Indenture dated as of June 27, 1995 (the “Original Indenture”), as supplemented by the Twelfth Supplemental Indenture dated as of November 29, 2012 (the “Twelfth Supplemental Indenture”, and together with the Original Indenture, the “Indenture”), duly executed and delivered by the Company to The Bank of New York Mellon Trust Company, N.A, as trustee (hereinafter referred to as the “Trustee”), to which Indenture and all indentures supplemental thereto reference is hereby made for a description of the rights, limitation of rights, obligations, duties and immunities thereunder of the Trustee, the Company and the Holders (the words “Holders” or “Holder” meaning the registered holders or registered holder of the Notes).
A-3
This Note will be redeemable at the option of the Company, in whole at any time or in part from time to time, at a Redemption Price equal to the greater of (i) 100% of the principal amount of this Note to be redeemed or (ii) the sum, as determined by the Quotation Agent, of the present values of the principal amount of this Note to be redeemed and the remaining scheduled payments of interest on the principal amount of this Note to be redeemed (exclusive of interest accrued to the Redemption Date), in each case, discounted from their respective scheduled payment dates to the Redemption Date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as defined below) plus 25 basis points, plus accrued and unpaid interest thereon to the Redemption Date.
“Comparable Treasury Issue” means, with respect to this Note subject to redemption, the United States Treasury security selected by the Quotation Agent as having an actual or interpolated maturity comparable to the remaining life of this Note to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity with the remaining life of this Note to be redeemed.
“Comparable Treasury Price” means, with respect to any Redemption Date, the average of five Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and lowest of such Reference Treasury Dealer Quotations, or, if the Quotation Agent obtains fewer than four such Reference Treasury Dealer Quotations, the average of all such quotations.
“Quotation Agent” means a Reference Treasury Dealer appointed by the Company.
“Reference Treasury Dealer” means J.P. Morgan Securities LLC, a primary Treasury dealer selected by Wells Fargo Securities, LLC, Barclays Capital Inc. and Citigroup Global Markets Inc., and each of their respective successors; provided, however, that if any of the foregoing shall cease to be a primary Treasury dealer, the Company will substitute another primary Treasury dealer.
“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and any Redemption Date, the average, as determined by the Quotation Agent, of the bid and asked prices for the Comparable Treasury Issue, expressed in each case as a percentage of its principal amount, quoted in writing to the Quotation Agent by such Reference Treasury Dealer at 3:30 p.m., New York City time, on the third Business Day preceding such Redemption Date.
A-4
“Treasury Rate” means, with respect to any Redemption Date applicable to this Note, the rate per annum equal to the semi-annual or equivalent yield to maturity or interpolated (on a day-count basis) of the Comparable Treasury Issue, calculated on the third Business Day preceding such Redemption Date using a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such Redemption Date.
This Note is not subject to any sinking fund.
Notice of any redemption will be mailed at least 30 days but not more than 60 days before the Redemption Date to the Holder hereof at its registered address.
If money sufficient to pay the Redemption Price with respect to and accrued and unpaid interest on the principal amount of this Note to be redeemed on the Redemption Date is deposited with the Trustee or Paying Agent on or before the Redemption Date and certain other conditions specified in the Indenture are satisfied, then on or after such date, interest will cease to accrue on the principal amount of this Note called for redemption.
Except as provided above, this Note is not redeemable by the Company prior to maturity and is not subject to any sinking fund.
In case an Event of Default shall occur and be continuing, the principal hereof may be declared, and upon such declaration shall become, due and payable, in the manner, with the effect and subject to the conditions provided in the Indenture.
Subject to certain exceptions set forth in the Indenture, (i) the Indenture may be amended with respect to the Notes with the consent of the Holders of at least a majority in principal amount outstanding of the Notes and (ii) any default or noncompliance with any provisions applicable to the Notes may be waived with the consent of the Holders of a majority in principal amount outstanding of the Notes. Subject to certain exceptions set forth in the Indenture, without the consent of any Holder, the Company and the Trustee may amend the Indenture or the Notes to, among other things, cure any ambiguity, defect or inconsistency, or to provide for the assumption by a successor person of the obligations of the Company under the Indenture, or to add additional covenants or surrender any right or power conferred on the Company, or to establish the form or terms of the Notes of any series, or to appoint a successor Trustee or provide for administration of the trust by more than one Trustee, or to add to, delete from or revise the conditions, limitations, and restrictions on the authorized amount, terms or purposes of issue, authentication and delivery of the Notes or to add any additional event of default, or to modify the provisions of the Indenture as shall be necessary to facilitate the defeasance and discharge of the Notes as shall not adversely affect any Holders, or to secure the Notes, or to make provisions with respect to exchange rights of Holders, or to make any change that does not adversely affect the rights of any Holder.
Subject to certain conditions, the Company at any time may terminate some or all of its obligations under the Notes and the Indenture if the Company deposits with the Trustee money or Government Obligations for the payment of principal, premium, if any, and interest on the Notes to the Maturity Date.
A-5
If money for the payment of principal or interest remains unclaimed for two years, the Trustee or Paying Agent shall pay the money back to the Company at its request unless an abandoned property law designates another Person. After any such payment, Holders entitled to the money must look only to the Company and not to the Trustee for payment.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and premium, if any, and interest on this Note at the place, at the respective times, at the rate, and in the coin or currency herein prescribed.
No director, officer, employee or stockholder, as such, of the Company shall have any liability for any obligations of the Company under this Note or the Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. Each Holder, by accepting this Note, waives and releases all such liability. The waiver and release are part of the consideration for the issue of this Note.
This Note and the Indenture shall be governed by and construed in accordance with the law of the State of New York applicable to agreements made or instruments entered into and, in each case, performed in said state.
Ownership of this Note shall be proved by the register for the Notes kept by the Registrar. The Company, the Trustee and any agent of the Company may treat the Person in whose name a Note is registered as the absolute owner thereof for all purposes.
Pursuant to a recommendation promulgated by the Committee on Uniform Note Identification Procedures, the Company has caused a CUSIP number to be printed on this Note and has directed the Trustee to use the CUSIP number as a convenience to Holders. No representation is made as to the correctness of such numbers and reliance may be placed only on the other identification numbers printed on this Note.
Terms used herein without definition that are defined in the Indenture shall have the meanings assigned to them in the Indenture.
Unless the Certificate of Authentication hereon has been executed by the Trustee under the Indenture referred to herein by the manual signature of one of its authorized officers, or on behalf of the Trustee by the manual signature of an authorized officer of the Trustee’s authenticating agent, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
[Remainder of Page Intentionally Left Blank]
A-6
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed, manually or by facsimile.
Date: November , 2012
| COX COMMUNICATIONS, INC. |
| By: | ||
| Name: | ||
| Title: |
| By: | ||
| Name: | ||
| Title: |
CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated therein referred to in the within-mentioned Indenture.
| THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A. | ||
| as Trustee | ||
| By: | ||
| Authorized Signatory | ||
| Dated: November , 2012 | ||
A-7
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby sell(s) assign(s) and transfer(s) unto
Please insert social security number 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 _________________attorney to transfer said Note of Cox Communications, Inc. on the books of Cox Communications, Inc. 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 this Note in every particular without alteration or enlargement or any change whatsoever. The Signature must be guaranteed by an “eligible guarantor institution meeting the requirements of the Registrar, which requirements include memberships or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934.
A-8
EXHIBIT A-2
[FORM OF FACE OF SECURITY]
[TRANSFER RESTRICTED LEGEND]
[THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933 (THE “SECURITIES ACT”) AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED PRIOR TO THE END OF THE PERIOD (THE “RESALE RESTRICTION PERIOD”) FROM THE DATE OF ORIGINAL ISSUANCE UNTIL (A) THE DATE THAT IS ONE YEAR AFTER THE LATER OF (X) THE DATE OF THE ORIGINAL ISSUANCE OF THE NOTES OR (Y) THE LAST DAY ON WHICH THE ISSUER OR ANY OF ITS AFFILIATES WAS THE OWNER OF THE NOTES, AND (B) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAWS, EXCEPT (1) TO THE ISSUER, (2) TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (3) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (4) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT (IF AVAILABLE), (5) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE 50l (a)(l), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS AN INSTITUTIONAL ACCREDITED INVESTOR ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF THE SECURITIES OF $100,000, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (6) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (4) OR (5) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION PERIOD.]
[GLOBAL NOTES LEGEND]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON 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.
A-9
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS, IN WHOLE BUT NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN ARTICLE TWO OF THE TWELFTH SUPPLEMENTAL INDENTURE REFERRED TO ON THE REVERSE HEREOF.]
[REGULATION S GLOBAL NOTES LEGEND]
[THIS GLOBAL NOTE IS A TEMPORARY GLOBAL NOTE FOR PURPOSES OF REGULATION S UNDER THE SECURITIES ACT. NEITHER THIS TEMPORARY GLOBAL NOTE NOR ANY INTEREST HEREIN MAY BE OFFERED, SOLD OR DELIVERED, EXCEPT AS PERMITTED UNDER THE INDENTURE REFERRED TO BELOW.
NO BENEFICIAL OWNERS OF THIS TEMPORARY GLOBAL NOTE SHALL BE ENTITLED TO RECEIVE PAYMENT OF PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED CERTIFICATIONS HAVE BEEN DELIVERED PURSUANT TO THE TERMS OF THE INDENTURE.]
A-10
| No. R- | PRINCIPAL AMOUNT |
| CUSIP No. | $ |
COX COMMUNICATIONS, INC.
4.70% Notes due 2042
COX COMMUNICATIONS, INC., a Delaware corporation (hereinafter called the “Company,” which term includes any successor corporation under the Indenture referred to below), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of [ ] ($ ) on December 15, 2042 (the “Maturity Date”), unless previously redeemed, and to pay interest thereon from November 29, 2012 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, payable semiannually on June 15 and December 15 in each year (each, an “Interest Payment Date”), commencing June 15, 2013, at the rate of 4.70% per annum, until the principal hereof is paid or duly made available for payment. Interest shall be computed on the basis of a 360-day year of twelve 30-day months. The interest so payable and punctually paid or duly provided for on any Interest Payment Date will, as provided in the Indenture, be paid to the Person in whose name this Note (or one or more predecessor securities) is registered at the close of business on the regular record date for such interest, which shall be June 1 or December 1 (whether or not a Business Day), as the case may be, immediately preceding such Interest Payment Date. Any such interest which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date shall forthwith cease to be payable to the registered Holder hereof on the relevant regular record date by virtue of having been such Holder, and may be paid to the Person in whose name this Note (or one or more predecessor securities) is registered at the close of business on a subsequent special record date (which shall be not more than 15 days and not less than 10 days before the payment date) for the payment of such defaulted interest to be fixed by the Trustee, notice whereof shall be given to the Holders of Notes of this series not less than 10 days prior to such special record date, or may be paid at any time in any other lawful manner, all as more fully provided in such Indenture. If any Interest Payment Date, Redemption Date or the Maturity Date falls on a day that is not a Business Day, the required payment shall be made on the next Business Day as if it were made on the date such payment was due and no ,interest shall accrue on the amount so payable for the period from and after such Interest Payment Date, Redemption Date or the Maturity Date, as the case may be, to such next Business Day. Payments of principal, premium, if any, and interest hereunder shall be made in such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts and shall be made immediately available to the Holder (as defined below) hereof.
This Note is one of the duly authorized series of Debt Securities of the Company, designated as the Company’s “4.70% Notes due 2042” (the “Notes”), initially limited to an aggregate principal amount of $500,000,000, all issued or to be issued under and pursuant to an Indenture dated as of June 27, 1995 (the “Original Indenture”), as supplemented by the Twelfth Supplemental Indenture dated as of November 29, 2012 (the “Twelfth Supplemental Indenture”, and together with the Original Indenture, the “Indenture”), duly executed and delivered by the Company to The Bank of New York Mellon Trust Company, N.A, as trustee (hereinafter referred to as the “Trustee”), to which Indenture and all indentures supplemental thereto reference is hereby made for a description of the rights, limitation of rights, obligations, duties and immunities thereunder of the Trustee, the Company and the Holders (the words “Holders” or “Holder” meaning the registered holders or registered holder of the Notes).
A-11
This Note will be redeemable at the option of the Company, in whole at any time or in part from time to time, at a Redemption Price equal to the greater of (i) 100% of the principal amount of this Note to be redeemed or (ii) the sum, as determined by the Quotation Agent, of the present values of the principal amount of this Note to be redeemed and the remaining scheduled payments of interest on the principal amount of this Note to be redeemed (exclusive of interest accrued to the Redemption Date), in each case, discounted from their respective scheduled payment dates to the Redemption Date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as defined below) plus 30 basis points, plus accrued and unpaid interest thereon to the Redemption Date.
“Comparable Treasury Issue” means, with respect to this Note subject to redemption, the United States Treasury security selected by the Quotation Agent as having an actual or interpolated maturity comparable to the remaining life of this Note to be redeemed that would be utilized, at the time of selection and in accordance :with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity with the remaining life of this Note to be redeemed.
“Comparable Treasury Price” means, with respect to any Redemption Date, the average of five Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and lowest of such Reference Treasury Dealer Quotations, or, if the Quotation Agent obtains fewer than four such Reference Treasury Dealer Quotations, the average of all such quotations.
“Quotation Agent” means a Reference Treasury Dealer appointed by the Company.
“Reference Treasury Dealer” means J.P. Morgan Securities LLC, a primary Treasury dealer selected by Wells Fargo Securities, LLC, Barclays Capital Inc. and Citigroup Global Markets Inc., and each of their respective successors; provided, however, that if any of the foregoing shall cease to be a primary Treasury dealer, the Company will substitute another primary Treasury dealer.
“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and any Redemption Date, the average, as determined by the Quotation Agent, of the bid and asked prices for the Comparable Treasury Issue, expressed in each case as a percentage of its principal amount, quoted in writing to the Quotation Agent by such Reference Treasury Dealer at 3:30 p.m., New York City time, on the third Business Day preceding such Redemption Date.
“Treasury Rate” means, with respect to any Redemption Date applicable to this Note, the rate per annum equal to the semi-annual or equivalent yield to maturity or interpolated (on a day-count basis) of the Comparable Treasury Issue, calculated on the third Business Day preceding such Redemption Date using a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such Redemption Date.
A-12
This Note is not subject to any sinking fund.
Notice of any redemption will be mailed at least 30 days but not more than 60 days before the Redemption Date to the Holder hereof at its registered address.
If money sufficient to pay the Redemption Price with respect to and accrued and unpaid interest on the principal amount of this Note to be redeemed on the Redemption Date is deposited with the Trustee or Paying Agent on or before the Redemption Date and certain other conditions specified in the Indenture are satisfied, then on or after such date, interest will cease to accrue on the principal amount of this Note called for redemption.
Except as provided above, this Note is not redeemable by the Company prior to maturity and is not subject to any sinking fund.
In case an Event of Default shall occur and be continuing, the principal hereof may be declared, and upon such declaration shall become, due and payable, in the manner, with the effect and subject to the conditions provided in the Indenture.
Subject to certain exceptions set forth in the Indenture, (i) the Indenture may be amended with respect to the Notes with the consent of the Holders of at least a majority in principal amount outstanding of the Notes and (ii) any default or noncompliance with any provisions applicable to the Notes may be waived with the consent of the Holders of a majority in principal amount outstanding of the Notes. Subject to certain exceptions set forth in the Indenture, without the consent of any Holder, the Company and the Trustee may amend the Indenture or the Notes to, among other things, cure any ambiguity, defect or inconsistency, or to provide for the assumption by a successor person of the obligations of the Company under the Indenture, or to add additional covenants or surrender any right or power conferred on the Company, or to establish the form or terms of the Notes of any series, or to appoint a successor Trustee or provide for administration of the trust by more than one Trustee, or to add to, delete from or revise the conditions, limitations, and restrictions on the authorized amount, terms or purposes of issue, authentication and delivery of the Notes or to add any additional event of default, or to modify the provisions of the Indenture as shall be necessary to facilitate the defeasance and discharge of the Notes as shall not adversely affect any Holders, or to secure the Notes, or to make provisions with respect to exchange rights of Holders, or to make any change that does not adversely affect the rights of any Holder.
Subject to certain conditions, the Company at any time may terminate some or all of its obligations under the Notes and the Indenture if the Company deposits with the Trustee money or Government Obligations for the payment of principal, premium, if any, and interest on the Notes to the Maturity Date.
A-13
If money for the payment of principal or interest remains unclaimed for two years, the Trustee or Paying Agent shall pay the money back to the Company at its request unless an abandoned property law designates another Person. After any such payment, Holders entitled to the money must look only to the Company and not to the Trustee for payment.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and premium, if any, and interest on this Note at the place, at the respective times, at the rate, and in the coin or currency herein prescribed.
No director, officer, employee or stockholder, as such, of the Company shall have any liability for any obligations of the Company under this Note or the Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. Each Holder, by accepting this Note, waives and releases all such liability. The waiver and release are part of the consideration for the issue of this Note.
This Note and the Indenture shall be governed by and construed in accordance with the law of the State of New York applicable to agreements made or instruments entered into and, in each case, performed in said state.
Ownership of this Note shall be proved by the register for the Notes kept by the Registrar. The Company, the Trustee and any agent of the Company may treat the Person in whose name a Note is registered as the absolute owner thereof for all purposes.
Pursuant to a recommendation promulgated by the Committee on Uniform Note Identification Procedures, the Company has caused a CUSIP number to be printed on this Note and has directed the Trustee to use the CUSIP number as a convenience to Holders. No representation is made as to the correctness of such numbers and reliance may be placed only on the other identification numbers printed on this Note.
Terms used herein without definition that are defined in the Indenture shall have the meanings assigned to them in the Indenture.
Unless the Certificate of Authentication hereon has been executed by the Trustee under the Indenture referred to herein by the manual signature of one of its authorized officers, or on behalf of the Trustee by the manual signature of an authorized officer of the Trustee’s authenticating agent, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
[Remainder of Page Intentionally Left Blank]
A-14
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed, manually or by facsimile.
Date: November , 2012
| COX COMMUNICATIONS, INC. |
| By: | ||
| Name: | ||
| Title: |
| By: | ||
| Name: | ||
| Title: |
CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated therein referred to in the within-mentioned Indenture.
| THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A. | ||
| as Trustee | ||
| By: | ||
| Authorized Signatory | ||
| Dated: November , 2012 | ||
A-15
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby sell(s) assign(s) and transfer(s) unto
Please insert social security number 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 attorney to transfer said Note of Cox Communications, Inc. on the books of Cox Communications, Inc. 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 this Note in every particular without alteration or enlargement or any change whatsoever. The Signature must be guaranteed by an “eligible guarantor institution meeting the requirements of the Registrar, which requirements include memberships or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934.
A-16
EXHIBIT B-1
Transfer Certificate
In connection with a transfer of any of the $_______________, principal amount of the % Notes due 20_ (the “Notes”) of Cox Communications, Inc. (the “Company”) within the period prior to the expiration of the holding period applicable to the sales thereof under Rule 144 under the Securities Act of 1933, as amended (the “Securities Act”) (or any successor provision), the undersigned registered owner of this Note hereby certifies with respect to $ principal amount of the above-captioned securities presented or surrendered on the date hereof (the “Surrendered Notes”) for registration of transfer, or for exchange where the securities deliverable upon such exchange are to be registered in a name other than that of the undersigned registered owner (each such transaction being a “transfer”), that such transfer complies with the restrictive legend set forth on the face of the Surrendered Notes for the reason checked below:
| ¨ | A transfer of the Surrendered Notes is made to the Company or any subsidiaries; Or | |
| ¨ | The transfer of the Surrendered Notes complies with Rule 144A under the Securities Act; or | |
| ¨ | The transfer of the Surrendered Notes is to an institutional accredited investor, as described in Rule 50l (a)(l), (2), (3) or (7) of Regulation D under the Securities Act; or | |
| ¨ | The transfer of the Surrendered Notes is pursuant to an effective registration statement under the Securities Act, or | |
| ¨ | The transfer of the Surrendered Notes is pursuant to an offshore transaction in accordance with Rule 904 of Regulation S under the Securities Act; or | |
| ¨ | The transfer of the Surrendered Notes is pursuant to another available exemption from the registration requirement of the Securities Act. |
and unless the box below is checked, the undersigned confirms that, to the undersigned’s knowledge, such Notes are not being transferred to an “affiliate” of the Company as defined in Rule 144 under the Securities Act (an “Affiliate”).
| ¨ | The transferee is an Affiliate of the Company. |
| DATE: | |||
| Signature(s) |
(If
the registered owner is a corporation, partnership
or fiduciary, the title of the Person signing on behalf
of such registered owner must be stated.)
B-1-1
EXHIBIT B-2
Form of Letter to be Delivered by Accredited Investors
Cox
Communications, Inc.
1400 Lake Hearn Drive, NE
Atlanta, Georgia 30319
Attention: Treasurer
The
Bank of New York Mellon Trust Company, N.A., as Registrar
100 Ashford Center North, Suite 520
Atlanta, Georgia 30338
Attention: Corporate Trust Office
Dear Sirs:
We are delivering this letter in connection with the proposed transfer of $ principal amount of the_____% Notes due 20_ (the “Notes”) of Cox Communications, Inc. (the “Company”).
We hereby confirm that:
(i) we are an “accredited investor” within the meaning of Rule 50l (a)(l), (2), (3) or (7) of Regulation D under the Securities Act of 1933, as amended (the “Securities Act”), or an entity in which all of the equity owners are accredited investors within the meaning of Rule 50l (a)(l), (2), (3) or (7) of Regulation D under the Securities Act (an “Institutional Accredited Investor”);
(ii) (A) the purchase of Notes by us is for our own account or for the account of one or more other Institutional Accredited Investors or as fiduciary for the account of one or more trusts, each of which is an “accredited investor” within the meaning of Rule 501 (a)(7) under the Securities Act and for each of which we exercise sole investment discretion or (B) we are a “bank,” within the meaning of Section 3(a)(2) of the Securities Act, or a “savings and loan association” or other institution described in Section 3(a)(5)(A) of the Securities Act that is acquiring Notes as fiduciary for the account of one or more institutions for which we exercise sole investment discretion;
(iii) we will acquire Notes having a minimum principal amount of not less than $100,000 for our own account or for any separate account for which we are acting;
(iv) we have such knowledge and experience in financial and business matters that we are capable of evaluating the merits and risks of purchasing Notes; and
(v) we are not acquiring Notes with a view to distribution thereof or with any present intention of offering or selling Notes, except as permitted below; provided that the disposition of our property and property of any accounts for which we are acting as fiduciary shall remain at all times within our control.
B-2-1
We understand that the Notes were originally offered and sold in a transaction not involving any public offering within the United States within the meaning of the Securities Act and that the Notes have not been registered under the Securities Act, and we agree, on our own behalf and on behalf of each account for which we acquire any Notes, that we will offer, sell or otherwise transfer such Notes, or any beneficial interest therein, prior to the end of the period (the “Resale Restriction Period”) from the date of original issuance until (a) the date that is one year after the later of (x) the date of the original issuance of the Notes or (y) the last day on which the Issuer or any of its Affiliates was the owner of the Notes, and (b) such later date, if any, as may be required by applicable laws only:
(1) to the Company or any subsidiary thereof, or
(2) for as long as the Notes are eligible for resale pursuant to Rule 144A, to a person we reasonably believe is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) that purchases for its own account or for the account of a qualified institutional buyer to which notice is given that the transfer is being made in reliance on Rule 144A, or
(3) to an Institutional Accredited Investor that is acquiring the Note for its own account, or for the account of such Institutional Accredited Investor for investment purposes and not with a view to, or for offer or sale in connection with, any distribution in violation of the Securities Act, or
(4) pursuant to a registration statement which has been declared effective under the Securities Act, or
(5) outside the United States to non-U.S. persons in an offshore transaction in accordance with Rule 903 or 904 of Regulation S under the Securities Act, or
(6) pursuant to another available exemption from registration under the Securities Act, including under Rule 144, if available, and, in each case, in accordance with any applicable securities laws of any State of the United States or any other applicable jurisdiction and in accordance with and subject to the legends set forth on the Notes.
We acknowledge that the Company, others and you will rely upon our confirmations, acknowledgments and agreements set forth herein, and we agree to notify you promptly in writing if any of our representations or warranties herein ceases to be accurate and complete.
B-2-2
THIS LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK.
| (Name of Purchaser) | ||
| By: | ||
| Name: | ||
| Title: | ||
| Address: | ||
B-2-3
Exhibit 4.11
EXECUTION VERSION
COX COMMUNICATIONS, INC.
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
as Trustee
THIRTEENTH SUPPLEMENTAL INDENTURE
Dated as of May 1, 2013
Supplement to Indenture
Dated as of June 27, 1995
Creating two series of Debt Securities designated
2.95% Notes due 2023
4.50% Notes due 2043
THIRTEENTH SUPPLEMENTAL INDENTURE, dated as of the 1st day of May, 2013 between COX COMMUNICATIONS, INC., a corporation existing under the laws of the State of Delaware, having its principal executive office located at 1400 Lake Hearn Drive, NE, Atlanta, Georgia 30319 ( the “Company”), and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., a national banking association, having a designated corporate trust office located at 900 Ashwood Parkway, Suite 425, Atlanta, Georgia 30338, as trustee (the “Trustee”);
WHEREAS, the Company has heretofore executed and delivered to the Trustee an Indenture, dated as of June 27, 1995 (the “Original Indenture” and, as amended by this Supplemental Indenture, the “Indenture”), providing for the issuance by the Company from time to time of its debentures, notes, bonds or other evidences of indebtedness (in the Original Indenture and herein called the “Debt Securities”), unlimited as to principal amount, to be issued in one or more series;
WHEREAS, the Company, in the exercise of the power and authority conferred upon and reserved to it under the provisions of the Original Indenture and pursuant to appropriate resolutions of the Board of Directors, has duly determined to make, execute and deliver to the Trustee this Supplemental Indenture to the Original Indenture in order to establish the form and terms of, and to provide for the creation and issuance of, two new series of Debt Securities designated as the “2.95% Notes due 2023” in the initial aggregate principal amount of $1,000,000,000 (the “2023 Notes”) and the “4.50% Notes due 2043” in the initial aggregate principal amount of $500,000,000 (the “2043 Notes” and, together with the 2023 Notes, the “Notes”);
WHEREAS, Section 9.01 of the Original Indenture provides, among other things, that the Company and the Trustee, at any time and from time to time, without the consent of any Holders, may enter into an indenture supplemental to the Original Indenture to establish the form or terms of Debt Securities of any series as permitted by Sections 2.01 and 2.03 of the Original Indenture;
WHEREAS, all things necessary to make the Notes, when executed by the Company and authenticated and delivered by the Trustee and issued upon the terms and subject to the conditions hereinafter and in the Original Indenture set forth against payment therefor, the valid, binding and legal obligations of the Company and to make this Supplemental Indenture a valid, binding and legal agreement of the Company, have been done;
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NOW, THEREFORE, THIS THIRTEENTH SUPPLEMENTAL INDENTURE WITNESSETH that, in order to establish the form and terms of the series of Debt Securities designated as the “2.95% Notes due 2023” and the “4.50% Notes due 2043” and for and in consideration of the premises and of the covenants contained in the Original Indenture and in this Supplemental Indenture and for other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of the Notes, as follows:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101 Definitions. For all purposes of the Original Indenture and this Supplemental Indenture relating to the series of Debt Securities (consisting of the Notes) created hereby, except as otherwise expressly provided or unless the context otherwise requires, the terms defined in this Article have the meanings assigned to them in this Article. Each capitalized term that is used in the Original Indenture and this Supplemental Indenture but not defined herein shall have the meaning specified in the Original Indenture.
“Agent Members” has the meaning specified in Section 209(e)(v) of this Supplemental Indenture.
“Applicable Procedures” means, with respect to any transfer or transaction involving a Global Note or beneficial interest therein, the rules and procedures of the Depositary for such Note, in each case to the extent applicable to such transaction and as in effect from time to time.
“Business Day” means any day other than a Saturday, a Sunday or a legal holiday or a day on which banking institutions or trust companies in The City of New York are authorized or obligated by law to close.
“cash” means U.S. legal tender.
“Certificated Notes” means the Notes issued in certificated, registered form without interest coupons and not required to bear the Legend set forth in Section 207(a)(ii) of this Supplemental Indenture.
“Clearstream” means Clearstream Banking, societe anonyme (formerly Cedelbank).
“Debt Securities” has the meaning specified in the first recital hereof.
“Depositary” means, with respect to the Notes issuable in whole or in part in global form, DTC and any nominee thereof, until a successor shall have been appointed and become such pursuant to the applicable provisions of the Indenture, and thereafter “Depositary” shall mean or include such successor and any nominee thereof.
“DTC” means The Depository Trust Company.
“Euroclear” means the Euroclear System.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Global Note” means a Note issued in global form, bearing the legends set forth in Section 207(a)(ii) of this Supplemental Indenture, and deposited with or on behalf of the Depositary.
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“Holder” and “Noteholder”, in the case of any Note, means the Person in whose name such Note is registered in the Debt Security Register.
“Institutional Accredited Investor” means an institutional “accredited investor” as defined in Rule 501(a)(l), (2), (3) and (7) under the Securities Act.
“Interest Payment Date,” in respect of any Note, has the meaning assigned to it in such Note.
“Issue Date” means May 1, 2013.
“Legend” means the US Transfer Restriction Legend and the Regulation S Legend, each as defined in Section 207(c) of this Supplemental Indenture.
“Notes” has the meaning specified in the recitals hereof.
“Purchase Agreement” means the Purchase Agreement dated April 24, 2013, among the Company and J.P. Morgan Securities LLC, Wells Fargo Securities, LLC, Barclays Capital Inc., Citigroup Global Markets Inc. and Morgan Stanley & Co. LLC, acting as representatives on behalf of the Initial Purchasers (as defined therein).
“Qualified Institutional Buyer” has the meaning specified in Rule 144A.
“Quotation Agent” means the Reference Treasury Dealer appointed by the Company.
“Redemption Date”, with respect to any 2023 Note or 2043 Note or portion thereof to be redeemed, means the date fixed for redemption in accordance with the terms of such Note and Article III of the Original Indenture.
“Redemption Price”, with respect to any 2023 Note or 2043 Note or portion thereof to be redeemed, means the price at which it is to be redeemed as determined in accordance with the terms of the applicable Note and Article III of the Original Indenture.
“Regulation S” means Regulation S under the Securities Act.
“Regulation S Global Note” means a Global Note in the form of the Note attached hereto as Exhibit A-2(i) or Exhibit A-2(ii), and that is deposited with and registered in the name of the Depositary, representing Notes sold in offshore transactions in reliance on Regulation S.
“Resale Restriction Termination Period” means, with respect to any Notes, the period from the Issue Date until (1) the date that is one year after the later of (a) the Issue Date or (b) the last day on which the Company or any of its Affiliates was the owner of the Notes, and (2) such later date, if any, as may be required by applicable laws.
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“Restricted Note” means a Note required to bear the US Transfer Restriction Legend pursuant to Section 207(c)(i) of this Supplemental Indenture and set forth on the forms of Notes attached as Exhibit A-1 to this Supplemental Indenture.
“Rule 144A” means Rule 144A under the Securities Act (or any successor provision), as it may be amended from time to time.
“SEC” means the U.S. Securities and Exchange Commission.
“Securities Act” means the Securities Act of 1933, as amended.
“Supplemental Indenture” means this Thirteenth Supplemental Indenture.
“Trustee” has the meaning specified in the first paragraph hereof.
“US Global Note” means a Global Note in the form of the Note attached hereto as Exhibit A-l(i) or Exhibit A-l(ii) to this Supplemental Indenture, and that is deposited with and registered in the name of the Depositary, representing Notes sold in reliance on Rule 144A.
SECTION 102 Section References. Each reference to a particular section set forth in this Supplemental Indenture shall, unless the context otherwise requires, refer to this Supplemental Indenture.
ARTICLE 2
THE NOTES
SECTION 201 Title of the Notes. The Notes shall be known and designated as the “2.95% Notes due 2023” and the “4.50% Notes due 2043” of the Company, respectively.
SECTION 202 Amount. The aggregate principal amount of Notes that may be authenticated and delivered under this Supplemental Indenture is initially limited to $1,000,000,000 for the 2023 Notes and $500,000,000 for the 2043 Notes, except for Notes authenticated and delivered upon registration of, transfer of, or exchange for, or in lieu of, other Notes pursuant to Section 2.07, 2.08, 2.09 or 9.04 of the Indenture, or upon repayment in part of any 2023 Note or 2043 Note pursuant to Article III of the Original Indenture. The Company may, from time to time, subject to compliance with any other applicable provisions of this Thirteenth Supplemental Indenture but without the consent of the Holders, create and issue pursuant to this Thirteenth Supplemental Indenture an unlimited principal amount of additional Notes (in excess of any amounts theretofore issued) having the same terms and conditions to those of the other outstanding Notes, except that any such additional Notes (i) may have a different issue date and issue price from other outstanding Notes and (ii) may have a different amount of interest payable on the first Interest Payment Date after issuance than the amount payable on other outstanding Notes.
SECTION 203 Stated Maturity. The Stated Maturity of the 2023 Notes shall be June 30, 2023. The Stated Maturity of the 2043 Notes shall be June 30, 2043.
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SECTION 204 Interest.
(a) The 2023 Notes shall bear cash interest at the rate of 2.95% from May 1, 2013 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, payable semiannually on June 30 and December 30 of each year, beginning on December 30, 2013, to the Persons in whose names such Notes are registered at the close of business on the immediately preceding June 15 or December 15, as the case may be, whether or not a Business Day. Interest on the 2023 Notes will be computed on the basis of a 360-day year of twelve 30-day months.
(b) The 2043 Notes shall bear cash interest at the rate of 4.50% from May 1, 2013 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, payable semiannually on June 30 and December 30 of each year, beginning on December 30, 2013, to the Persons in whose names such Notes are registered at the close of business on the immediately preceding June 15 or December 15, as the case may be, whether or not a Business Day. Interest on the 2043 Notes will be computed on the basis of a 360-day year of twelve 30-day months.
SECTION 205 Payments.
(a) Payments of principal, premium, if any, and interest on the Notes will be made to the Depositary, or its nominee, as the case may be, as the registered owner and holder of the Global Notes representing the Notes. In the event that the Notes are issued in the form of Certificated Notes, payments of principal, premium, if any, and interest thereon will be at the office or agency of the Trustee in The City of New York designated for such purpose, provided that payment of interest, other than interest payable at Stated Maturity or upon redemption, may be made at the option of the Company by check mailed by the Trustee to the address of the Person entitled as shown on the Debt Security Register.
(b) If any Stated Maturity Date, Redemption Date or Interest Payment Date, falls on a day that is not a Business Day, the required payment shall be made on the next Business Day, and no interest shall accrue on the amount so payable for the period between such payment date and the next Business Day.
(c) Payments of principal, premium, if any, and interest on the Notes shall be made in cash or such other coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debt.
SECTION 206 Redemption. Each series of Notes shall be redeemable, in whole or in part, on one or more Redemption Dates at the applicable Redemption Price. If the Redemption Date is not an Interest Payment Date, the amount of the scheduled interest payment on the next succeeding Interest Payment Date will be reduced by the amount of interest accrued to the Redemption Date.
SECTION 207 Forms; Denominations. The Notes shall be Registered Securities. The Global Notes representing the Notes shall be in substantially the forms attached hereto as Exhibits A-1 and A-2.
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The Notes are being offered and sold by the Company pursuant to the Purchase Agreement.
(a) Global Notes. (i) Notes offered and sold in reliance on Rule 144A as provided in the Purchase Agreement shall be issued initially in the form of one or more US Global Notes in definitive fully registered form without interest coupons, deposited on behalf of the subscribers for the Notes represented thereby with the Trustee, as custodian for the Depositary and registered in the name of DTC or a nominee thereof, duly executed by the Company and authenticated by the Trustee as provided in the Indenture. The aggregate principal amount of the US Global Notes may from time to time be increased or decreased by adjustments made on the records of the Trustee and the Depositary as hereinafter provided.
Notes offered and sold in offshore transactions in reliance on Regulation S as provided in the Purchase Agreement shall be issued initially in the form of one or more Regulation S Global Notes in definitive fully registered form without interest coupons, deposited on behalf of the subscribers for the Notes represented thereby with the Trustee, as custodian for the Depositary, for the accounts of Euroclear and Clearstream and registered in the name of DTC or a nominee thereof, duly executed by the Company and authenticated by the Trustee as hereinafter provided. The aggregate principal amount of the Regulation S Global Notes may from time to time be increased or decreased by adjustments made on the records of the Trustee and the Depositary as hereinafter provided.
Each Global Note shall represent such of the outstanding Notes as shall be specified therein and each shall provide that it shall represent the aggregate principal amount of outstanding Notes from time to time endorsed thereon and the aggregate principal amount of outstanding Notes represented thereby may from time to time be reduced to reflect exchanges or redemptions. Any adjustment of the aggregate principal amount of a Global Note representing the Notes to reflect the amount of any decrease in the principal amount of outstanding Notes represented thereby shall be made by the Trustee in accordance with instructions given by the Holder thereof as required by Section 209 hereof and shall be made on the records of the Trustee and the Depositary.
(ii) Book-Entry Provisions. This Section 207(a)(ii) shall apply only to Global Notes.
The Company shall execute and the Trustee shall, in accordance with this Section 207(a)(ii) and Section 2.02 of the Indenture, authenticate and deliver initially one or more Global Notes that (a) shall be registered in the name of the Depositary, (b) shall be delivered by the Trustee to the Depositary or pursuant to the Depositary’s instructions and (c) shall bear legends substantially to the following effect:
“UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON 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.
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TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS, IN WHOLE BUT NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN ARTICLE TWO OF THE THIRTEENTH SUPPLEMENTAL INDENTURE REFERRED TO ON THE REVERSE HEREOF.”
(b) Certificated Notes. Except as otherwise set forth in this Supplemental Indenture, owners of beneficial interests in Global Notes will not be entitled to receive physical delivery of Certificated Notes. Beneficial interests in a Global Note transferred in accordance with Section 209(a)(ii) to an Institutional Accredited Investor who is not a Qualified Institutional Buyer and beneficial interests in a Global Note transferred to the beneficial holders thereof pursuant to Section 209(e) will be issued in certificated, registered form without interest coupons.
(c) Restrictive Legends.
(i) Until the completion of the Resale Restriction Termination Period, all US Global Notes and all Certificated Notes issued in exchange for a beneficial interest in a US Global Note shall bear a legend (the “US Transfer Restriction Legend”) in substantially the following form, unless such Notes have been sold pursuant to a registration statement that has been declared effective under the Securities Act:
“THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED PRIOR TO THE END OF THE PERIOD (THE “RESALE RESTRICTION PERIOD”) FROM THE DATE OF ORIGINAL ISSUANCE UNTIL (A) THE DATE THAT IS ONE YEAR AFTER THE LATER OF (X) THE DATE OF THE ORIGINAL ISSUANCE OF THE NOTES OR (Y) THE LAST DAY ON WHICH THE ISSUER OR ANY OF ITS AFFILIATES WAS THE OWNER OF THE NOTES, AND (B) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAWS, EXCEPT (1) TO THE ISSUER, (2) TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (3) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE 904 OF REGULATIONS UNDER THE SECURITIES ACT, (4) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), (5) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE 501(a)(l), (2), (3) OR (7) UNDER THE SECURITIES ACT ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF $100,000, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (6) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND WHICH CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH TRANSFER, SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (4) OR (5) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION PERIOD.”
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(ii) Until the date that is 40 days after the date of original issuance or such later date, if any, as may be required by applicable laws, all Regulation S Global Notes shall bear a legend (the “Regulation S Legend”) in substantially the following form, unless such Notes have been sold pursuant to a registration statement that has been declared effective under the Securities Act:
“THE NOTES EVIDENCED HEREBY WERE ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE TRANSFERRED IN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, ANY U.S. PERSON UNTIL THE DATE THAT IS 40 DAYS AFTER THE DATE OF THE ORIGINAL ISSUANCE OF SUCH NOTES, OR SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAWS. THE TERMS USED ABOVE HAVE THE MEANINGS GIVEN TO THEM IN REGULATION S UNDER THE SECURITIES ACT.”
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SECTION 208 Transfer and Exchange.
(a) Notwithstanding any provision to the contrary herein, so long as a Global Note remains outstanding and is held by or on behalf of the Depositary, transfers of a Global Note, in whole or in part, shall be made only in accordance with Section 209 and this Section 208.
(b) Transfers of a Global Note shall be limited to transfers of such Global Note in whole, or in part, to nominees of the Depositary or to a successor of the Depositary or such successor’s nominee.
(c) If Notes are issued upon the transfer, exchange or replacement of Notes subject to restrictions on transfer and bearing a Legend, or if a request is made to remove the Legend on a Note, the Notes so issued shall bear the Legend, or the Legend shall not be removed, as the case may be, unless there is delivered to the Company and the Registrar such satisfactory evidence, which shall include an opinion of counsel, as may be reasonably required by the Company and the Registrar, that neither the Legend nor the restrictions on transfer set forth therein are required to ensure that transfers thereof comply with the provisions of Rule 144A, Rule 144 or Regulation S under the Securities Act, that such Notes are not “restricted” within the meaning of Rule 144 under the Securities Act or that any such exchange or replacement Notes have been issued in a registered transaction under the Securities Act. Upon (i) provision of such satisfactory evidence, or (ii) notification by the Company to the Trustee and the Registrar of the sale or exchange of such Notes pursuant to a registration statement that is effective at the time of such sale, the Trustee, at the written direction of the Company, shall authenticate and deliver a Note that does not bear the Legend. If the Legend is removed from the face of a Note and the Note is subsequently held by an Affiliate of the Company, the Legend shall be reinstated.
The Trustee and the Registrar shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Supplemental Indenture or under applicable law with respect to any transfer of any interest in any Note (including transfers between or among the Depositary’s participants or beneficial owners of interest in any Global Note) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Supplemental Indenture and to examine the same to determine substantial compliance as to form with the express requirements hereof.
SECTION 209 Global Notes.
(a) Notwithstanding any other provisions of this Supplemental Indenture or the Notes, (A) transfers of a Global Note, in whole or in part, shall be made only in accordance with Section 2.07 of the Indenture and Sections 208 and 209(a)(i) below, (B) transfer of a beneficial interest in a Global Note for a Certificated Note shall comply with Section 2.07 of the Indenture and Section 209(a)(ii) below, (C) transfers of a beneficial interest in a Regulation S Global Note for a beneficial interest in a U.S. Global Note shall comply with Section 2.07 of the Indenture and Section 209(a)(iii) below, and (D) transfers of a Certificated Note shall comply with Section 2.07 of the Indenture and Sections 209(a)(iv) and (v) below.
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(i) Transfer of Global Note. A Global Note may not be transferred, in whole or in part, to any Person other than the Depositary or a nominee thereof, and no such transfer to any such other Person may be registered; provided that this clause (i) shall not prohibit any transfer of a Note that is issued in exchange for a Global Note but is not itself a Global Note. No transfer of a Note to any Person shall be effective under the Indenture or the Notes unless and until such Note has been registered in the name of such Person. Nothing in this Section 209(a)(i) shall prohibit or render ineffective any transfer of a beneficial interest in a Global Note effected in accordance with the other provisions of this Section 209(a).
(ii) Restrictions on Transfer of a Beneficial Interest in a Global Note for a Certificated Note. A beneficial interest in a Global Note may not be exchanged for a Certificated Note except upon satisfaction of the requirements set forth below. Upon receipt by the Trustee of a request for transfer of a beneficial interest in a Global Note in accordance with Applicable Procedures for a Certificated Note in the form satisfactory to the Trustee, together with:
(a) so long as the Notes are Restricted Notes, certification, in the form set forth in Exhibit B-1 attached hereto, and, if requested by the Company or the Registrar, certification in the form set forth in Exhibit B-2 attached hereto, that such beneficial interest in the Global Note is being transferred to an Institutional Accredited Investor;
(b) written instructions to the Trustee to make, or direct the Registrar to make, an adjustment on its books and records with respect to such Global Note to reflect a decrease in the aggregate principal amount of the Notes represented by the Global Note, such instructions to contain information regarding the Depositary account to be credited with such decrease; and
(c) if the Company or Registrar so requests, an opinion of counsel or other evidence reasonably satisfactory to them as to compliance with the restrictions set forth in the Legend,
then the Trustee shall cause, or direct the Registrar to cause, in accordance with the standing instructions and procedures existing between the Depositary and the Registrar, the aggregate principal amount of Notes represented by the Global Note to be decreased by the aggregate principal amount of the Certificated Note to be issued, shall issue such Certificated Note and shall debit or cause to be debited to the account of the Person specified in such instructions a beneficial interest in the Global Note equal to the principal amount of the Certificated Note so issued.
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(iii) Restrictions on Transfer of Beneficial Interest in a Regulation S Global Note for a Beneficial Interest in a US Global Note.
(a) On or prior to the 40th day after the date of the original issuance of the Notes represented by the Regulation S Global Note or such later date, if any, as may be required by applicable laws (such period through and including such 40th day, the “Distribution Compliance Period”), a beneficial interest in a Regulation S Global Note may be transferred to a Person who takes delivery in the form of an interest in the corresponding US Global Note only upon receipt by the Trustee of a written certification from the transferor to the effect that such transfer is being made (i)(a) to a Person whom the transferor reasonably believes is a Qualified Institutional Buyer in a transaction meeting the requirements of Rule 144A or (b) pursuant to another exemption from the registration requirements under the Securities Act which is accompanied by an Opinion of Counsel regarding the availability of such exemption and (ii) in accordance with all applicable securities laws of any state of the United States or any other jurisdiction.
(b) Beneficial interests in the US Global Note may be transferred to a Person who takes delivery in the form of an interest in the Regulation S Global Note, whether before or after the expiration of the Distribution Compliance Period, only if the transferor first delivers to the Trustee a written certificate to the effect that such transfer is being made in accordance with Rule 904 of Regulation S or Rule 144 (if available).
(iv) Transfer and Exchange of Certificated Notes. When Certificated Notes are presented to the Registrar with a request:
(x) to register the transfer of such Certificated Notes; or
(y) to exchange such Certificated Notes for an equal principal amount of Certificated Notes of other authorized denominations,
the Registrar shall register the transfer or make the exchange as requested if its reasonable requirements for such transaction are met; provided, however, that the Certificated Notes surrendered for transfer or exchange:
(a) shall be duly endorsed or accompanied by a written instrument of transfer in form reasonably satisfactory to the Company and the Registrar, duly executed by the Holder thereof or his attorney duly authorized in writing; and
(b) so long as such Notes are Restricted Notes, such Notes are being transferred or exchanged pursuant to clause (A), (B) or (C) below, and are accompanied by the following additional information and documents, as applicable:
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(A) if such Certificated Notes are being delivered to the Registrar by a Holder for registration in the name of such Holder, without transfer, a certification from such Holder to that effect; or
(B) if such Certificated Notes are being transferred to the Company, a certification to that effect; or
(C) if such Certificated Notes are being transferred pursuant to an exemption from registration, (i) a certification to that effect (in the form set forth in Exhibit B-1 and B-2, if applicable) and (ii) if the Company or Registrar so requests, an opinion of counsel or other evidence reasonably satisfactory to them as to the compliance with the restrictions set forth in the US Transfer Restriction Legend.
(v) Restrictions on Transfer of a Certificated Note for a Beneficial Interest in a Global Note. A Certificated Note may not be exchanged for a beneficial interest in a Global Note except upon satisfaction of the requirements set forth below.
Upon receipt by the Trustee of a Certificated Note, duly endorsed or accompanied by appropriate instruments of transfer, in form satisfactory to the Trustee, together with:
(a) so long as the Notes are Restricted Notes, certification, in the form set forth in Exhibit B-1, that such Certificated Note is being transferred to a Qualified Institutional Buyer in accordance with Rule 144A; and
(b) written instructions directing the Trustee to make, or to direct the Registrar to make, an adjustment on its books and records with respect to such Global Note to reflect an increase in the aggregate principal amount of the Notes represented by the Global Note, such instructions to contain information regarding the Depositary account to be credited with such increase,
then the Trustee shall cancel such Certificated Note and cause, or direct the Registrar to cause, in accordance with the standing instructions and procedures existing between the Depositary and the Registrar, the aggregate principal amount of Notes represented by the Global Note to be increased by the aggregate principal amount of the Certificated Note to be exchanged, and shall credit or cause to be credited to the account of the Person specified in such instructions a beneficial interest in the Global Note equal to the principal amount of the Certificated Note so cancelled. If no Global Notes are then outstanding, the Company shall issue and the Trustee shall authenticate, upon receipt of a Company Order, a new Global Note in the appropriate principal amount.
(b) Subject to the succeeding paragraph, every Note shall be subject to the restrictions on transfer provided in the applicable Legend including the delivery of an opinion of counsel, if so provided. Whenever any Restricted Note is presented or surrendered for registration of transfer or for exchange for a Note registered in a name other than that of the Holder, such Note must be accompanied by a certificate in substantially the form set forth in Exhibit B-1, dated the date of such surrender and signed by the Holder of such Note, as to compliance with such restrictions on transfer. The Registrar shall not be required to accept for such registration of transfer or exchange any Note not so accompanied by a properly completed certificate.
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(c) (i) The restrictions imposed by the US Transfer Restriction Legend upon the transferability of any Restricted Note shall cease and terminate when such Note has been sold or exchanged pursuant to an effective registration statement under the Securities Act or may be transferred in compliance with Rule 144 under the Securities Act (or any successor provision thereto). Any Note as to which such restrictions on transfer shall have expired in accordance with their terms or shall have terminated may, upon a surrender of such Note for exchange to the Registrar in accordance with the provisions of this Section 209 (accompanied, in the event that such restrictions on transfer have terminated by reason of a transfer in compliance with Rule 144 or any successor provision, by an opinion of counsel having substantial experience in practice under the Securities Act and otherwise reasonably acceptable to the Company, addressed to the Company, the Trustee and the Registrar and in form acceptable to the Company, to the effect that the transfer of such Note has been made in compliance with Rule 144 or such successor provision), be exchanged for a new Note, of like tenor and aggregate principal amount, which shall not bear the US Transfer Restriction Legend. The Company shall inform the Trustee of the effective date of any registration statement registering the Notes under the Securities Act. The Trustee shall not be liable for any action taken or omitted to be taken by it in good faith in accordance with the aforementioned opinion of counsel.
(d) As used in the preceding two paragraphs of this Section 209, the term “transfer” encompasses any sale, pledge, transfer, hypothecation or other disposition of any Note.
(e) The provisions of clauses (i), (ii), (iii), (iv), and (v) below shall apply only to Global Notes:
(i) Notwithstanding any other provisions of the Indenture or the Notes, except as provided in Section 209(a)(ii), a Global Note shall not be exchanged in whole or in part for a Note registered in the name of any Person other than the Depositary or one or more nominees thereof, provided that a Global Note may be exchanged for Certificated Notes registered in the names of any Person designated by the Depositary in the event that (i) the Depositary has notified the Company that it is unwilling or unable to continue as depositary for such Global Note or the Depositary has ceased to be a “clearing agency” registered under the Exchange Act, and a successor Depositary is not appointed by the Company within 90 days or (ii) an Event of Default has occurred and is continuing with respect to the Notes. Any Global Note exchanged pursuant to clause (i) above shall be so exchanged in whole and not in part, and any Global Note exchanged pursuant to clause (ii) above may be exchanged in whole or from time to time in part as directed by the Depositary. Prior to the issuance of Certificated Notes in exchange for any beneficial interests in a Regulation S Global Note, the holder of such beneficial interests shall, as a condition to such exchange, certify in a form satisfactory to the Company that such holder is a non-U.S. person (as that term is defined in Regulation S under the Securities Act) or a U.S. person who purchased such beneficial interest in a transaction that did not require registration under the Securities Act. In the event that Certificated Notes are issued in respect of beneficial interests in a Regulation S Global Note at any time prior to the end of the Distribution Compliance Period (other than in a transaction subject to Rule 144A), the Company shall as promptly as practicable, institute procedures, including appropriate certifications, reasonably designed to ensure that any transfer of such Certificated Notes prior to the end of the Distribution Compliance Period is made only in accordance with the provisions of Regulation S, pursuant to registration under the Securities Act or pursuant to an exemption from such registration.
13
(ii) Notes issued in exchange for a Global Note or any portion thereof shall be issued in definitive, fully registered form, without interest coupons, shall have an aggregate principal amount equal to that of such Global Note or portion thereof to be so exchanged, shall be registered in such names and be in such authorized denominations as the Depositary shall designate and shall bear the applicable Legend. Any Global Note to be exchanged in whole shall be surrendered by the Depositary to the Trustee, as Registrar. With regard to any Global Note to be exchanged in part, either such Global Note shall be so surrendered for exchange or, if the Trustee is acting as custodian for the Depositary or its nominee with respect to such Global Note, the principal amount thereof shall be reduced, by an amount equal to the portion thereof to be so exchanged, by means of an appropriate adjustment made on the records of the Trustee. Upon any such surrender or adjustment, the Trustee shall authenticate and deliver the Note issuable on such exchange to or upon the order of the Depositary or an authorized representative thereof.
(iii) Subject to the provisions of clause (v) below, the registered Holder may grant proxies and otherwise authorize any Person, including Agent Members (as defined below) and Persons that may hold interests through Agent Members, to take any action which a Holder is entitled to take under the Indenture or the Notes.
(iv) In the event of the occurrence of any of the events specified in clause (i) above, the Company will promptly make available to the Trustee a reasonable supply of Certificated Notes.
(v) Neither any members of, or participants in, the Depositary (collectively, the “Agent Members”) nor any other Persons on whose behalf Agent Members may act shall have any rights under the Indenture with respect to any Global Note registered in the name of the Depositary or any nominee thereof, or under any such Global Note, and the Depositary or such nominee, as the case may be, may be treated by the Company, the Trustee and any agent of the Company or the Trustee as the absolute owner and holder of such Global Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee or any agent of the Company or the Trustee from giving effect to any written certification, proxy or other authorization furnished by the Depositary or such nominee, as the case may be, or impair, as between the Depositary, its Agent Members and any other Person on whose behalf an Agent Member may act, the operation of customary practices of such Persons governing the exercise of the rights of a Holder of any Note.
14
SECTION 210 Event of Default. For purposes of this Thirteenth Supplemental Indenture and the Notes issued hereunder, Section 6.01 of the Original Indenture is hereby amended by deleting the clause immediately following subsection (i) in the first sentence of such Section and inserting in its place the following:
“then and in each and every case that an Event of Default described in clause (a), (b), (c), (d), (e), (f), (g) (with respect to Restricted Subsidiaries only), (h) (with respect to Restricted Subsidiaries only) or (i) with respect to Debt Securities of that series at the time outstanding occurs and is continuing, unless the principal of and interest on all the Debt Securities of that series shall have already become due and payable, either the Trustee or the Holders of not less than 25% in aggregate principal amount of the Debt Securities of that series then outstanding hereunder, by notice in writing to the Company (and to the Trustee if given by Holders), may declare the principal of (or, if the Debt Securities of that series are Original Issue Discount Debt Securities, such portion of the principal amount as may be specified in the terms of that series) and interest on all the Debt Securities of that series to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything in this Indenture or in the Debt Securities or Coupons appertaining thereto of that series contained to the contrary notwithstanding.”
ARTICLE 3
REPORTS BY THE COMPANY
So long as any of the Debt Securities are “restricted securities” within the meaning of Rule 144(a)(3) under the Securities Act, the Company will, during any period in which it is not subject to Sections 13 or 15(d) of the Exchange Act or it is not exempt from such reporting requirements pursuant to and in compliance with Rule 12g3-2(b) under the Exchange Act, provide to each Holder of Notes and to each prospective purchaser (as designated by such Holder) of Notes, upon the request of such Holder or prospective purchaser, any information required to be provided by Rule 144A(d)(4) under the Securities Act.
ARTICLE 4
MISCELLANEOUS PROVISIONS
The Trustee makes no undertaking or representations in respect of, and shall not be responsible in any manner whatsoever for and in respect of, the validity or sufficiency of this Supplemental Indenture or the proper authorization or the due execution hereof by the Company or for or in respect of the recitals and statements contained herein, all of which recitals and statements are made solely by the Company.
For purposes of this Supplemental Indenture and the Notes, Section 7.02 of the Original Indenture is hereby amended to include the following additional rights of the Trustee:
“(i) in no event shall the Trustee be responsible or liable for special, indirect, or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action;
15
(j) in no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances;
(k) the Trustee shall not be deemed to have notice of any Default or Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee at the designated corporate trust office of the Trustee, and such notice references the Notes and this Indenture;
(1) the rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder; and
(m) the Trustee may request that the Company deliver a certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture.”
The provisions of Article XI of the Original Indenture relating to defeasance shall apply to the Notes.
Except as expressly amended hereby, the Original Indenture shall continue in full force and effect in accordance with the provisions thereof, and the Original Indenture is in all respects hereby ratified and confirmed. This Supplemental Indenture and all its provisions shall be deemed a part of the Original Indenture in the manner and to the extent herein and therein provided.
This Supplemental Indenture shall be governed by, and construed in accordance with, the laws of the State of New York.
This Supplemental Indenture may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.
EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS SUPPLEMENTAL INDENTURE, THE NOTES OR THE TRANSACTION CONTEMPLATED HEREBY.
[SIGNATURE PAGES FOLLOW]
16
IN WITNESS WHEREOF, the Parties have executed this Thirteenth Supplemental Indenture by their duly authorized signatories as of the date first above written.
| COX COMMUNICATIONS, INC. | |||
| By: | /s/ Mark F. Bowser | ||
| Name: | Mark F. Bowser | ||
| Title: | Executive Vice President and Chief Financial Officer | ||
| By: | /s/ Katherine K. Decker | ||
| Name: | Katherine K. Decker | ||
| Title: | Vice President and Treasurer | ||
Thirteenth Supplemental Indenture Signature Page
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee | |||
| By: | /s/ Teresa Petta | ||
| Name: | Teresa Petta | ||
| Title: | Vice President | ||
Thirteenth Supplemental Indenture Signature Page
EXHIBIT A-l(i)
[FORM OF FACE OF SECURITY]
[US TRANSFER RESTRICTION LEGEND]
[THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED PRIOR TO THE END OF THE PERIOD (THE “RESALE RESTRICTION PERIOD”) FROM THE DATE OF ORIGINAL ISSUANCE UNTIL (A) THE DATE THAT IS ONE YEAR AFTER THE LATER OF (X) THE DATE OF THE ORIGINAL ISSUANCE OF THE NOTES OR (Y) THE LAST DAY ON WHICH THE ISSUER OR ANY OF ITS AFFILIATES WAS THE OWNER OF THE NOTES, AND (B) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAWS, EXCEPT (1) TO THE ISSUER, (2) TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (3) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (4) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), (5) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE 501(a)(l), (2), (3) OR (7) UNDER THE SECURITIES ACT ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF $100,000, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (6) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND WHICH CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH TRANSFER, SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (4) OR (5) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION PERIOD.]
[GLOBAL NOTES LEGEND]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON 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.
A-1
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS, IN WHOLE BUT NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN ARTICLE TWO OF THE THIRTEENTH SUPPLEMENTAL INDENTURE REFERRED TO ON THE REVERSE HEREOF.]
A-2
| No. R- | PRINCIPAL AMOUNT |
| CUSIP No. | $ |
COX COMMUNICATIONS, INC.
2.95% Notes due 2023
COX COMMUNICATIONS, INC., a Delaware corporation (hereinafter called the “Company,” which term includes any successor corporation under the Indenture referred to below), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of [ ] ($ ) on June 30, 2023 (the “Maturity Date”), unless previously redeemed, and to pay interest thereon from May 1, 2013 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, payable semiannually on June 30 and December 30 of each year (each, an “Interest Payment Date”), commencing December 30, 2013, at the rate of 2.95% per annum, until the principal hereof is paid or duly made available for payment. Interest shall be computed on the basis of a 360-day year of twelve 30-day months. The interest so payable and punctually paid or duly provided for on any Interest Payment Date will, as provided in the Indenture, be paid to the Person in whose name this Note (or one or more predecessor securities) is registered at the close of business on the regular record date for such interest, which shall be June 15 or December 15 (whether or not a Business Day), as the case may be, immediately preceding such Interest Payment Date. Any such interest which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date shall forthwith cease to be payable to the registered Holder hereof on the relevant regular record date by virtue of having been such Holder, and may be paid to the Person in whose name this Note (or one or more predecessor securities) is registered at the close of business on a subsequent special record date (which shall be not more than 15 days and not less than 10 days before the payment date) for the payment of such defaulted interest to be fixed by the Trustee, notice whereof shall be given to the Holders of Notes of this series not less than 10 days prior to such special record date, or may be paid at any time in any other lawful manner, all as more fully provided in such Indenture. If any Interest Payment Date, Redemption Date or the Maturity Date falls on a day that is not a Business Day, the required payment shall be made on the next Business Day as if it were made on the date such payment was due and no interest shall accrue on the amount so payable for the period from and after such Interest Payment Date, Redemption Date or the Maturity Date, as the case may be, to such next Business Day. Payments of principal, premium, if any, and interest hereunder shall be made in such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts and shall be made immediately available to the Holder (as defined below) hereof.
This Note is one of the duly authorized series of Debt Securities of the Company, designated as the Company’s “2.95% Notes due 2023” (the “Notes”), initially limited to an aggregate principal amount of $1,000,000,000, all issued or to be issued under and pursuant to an Indenture dated as of June 27, 1995 (the “Original Indenture”), as supplemented by the Thirteenth Supplemental Indenture dated as of May 1, 2013 (the “Thirteenth Supplemental Indenture”, and together with the Original Indenture, the “Indenture”), duly executed and delivered by the Company to The Bank of New York Mellon Trust Company, N.A, as trustee (hereinafter referred to as the “Trustee”), to which Indenture and all indentures supplemental thereto reference is hereby made for a description of the rights, limitation of rights, obligations, duties and immunities thereunder of the Trustee, the Company and the Holders (the words “Holders” or “Holder” meaning the registered holders or registered holder of the Notes).
A-3
Prior to March 30, 2023, this Note will be redeemable at the option of the Company, in whole at any time or in part from time to time, at a Redemption Price equal to the greater of (i) 100% of the principal amount of this Note to be redeemed or (ii) the sum, as determined by the Quotation Agent, of the present values of the principal amount of this Note to be redeemed and the remaining scheduled payments of interest on the principal amount of this Note to be redeemed (exclusive of interest accrued to the Redemption Date), in each case, discounted from their respective scheduled payment dates to the Redemption Date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as defined below) plus 20 basis points, plus accrued and unpaid interest thereon to, but not including, the Redemption Date. On or after March 30, 2023, this Note will be redeemable at the option of the Company, in whole at any time or in part from time to time, at a Redemption Price equal to 100% of the principal amount of this Note being redeemed, plus accrued and unpaid interest thereon to, but not including, the Redemption Date.
“Comparable Treasury Issue” means, with respect to this Note subject to redemption, the United States Treasury security selected by the Quotation Agent as having an actual or interpolated maturity comparable to the remaining life of this Note to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity with the remaining life of this Note to be redeemed.
“Comparable Treasury Price” means, with respect to any Redemption Date, the average of five Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and lowest of such Reference Treasury Dealer Quotations, or, if the Quotation Agent obtains fewer than four such Reference Treasury Dealer Quotations, the average of all such quotations.
“Quotation Agent” means a Reference Treasury Dealer appointed by the Company.
“Reference Treasury Dealer” means J.P. Morgan Securities LLC, a primary Treasury dealer selected by Wells Fargo Securities, LLC, Barclays Capital Inc., Citigroup Global Markets Inc. and Morgan Stanley & Co. LLC, and each of their respective successors; provided, however, that if any of the foregoing shall cease to be a primary Treasury dealer, the Company will substitute another primary Treasury dealer.
“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and any Redemption Date, the average, as determined by the Quotation Agent, of the bid and asked prices for the Comparable Treasury Issue, expressed in each case as a percentage of its principal amount, quoted in writing to the Quotation Agent by such Reference Treasury Dealer at 3:30 p.m., New York City time, on the third Business Day preceding such Redemption Date.
A-4
“Treasury Rate” means, with respect to any Redemption Date, the rate per annum equal to the semi-annual or equivalent yield to maturity or interpolated (on a day-count basis) of the Comparable Treasury Issue, calculated on the third Business Day preceding such Redemption Date using a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such Redemption Date.
This Note is not subject to any sinking fund.
Notice of any redemption will be mailed at least 30 days but not more than 60 days before the Redemption Date to the Holder hereof at its registered address.
If money sufficient to pay the Redemption Price with respect to and accrued and unpaid interest on the principal amount of this Note to be redeemed on the Redemption Date is deposited with the Trustee or Paying Agent on or before the Redemption Date and certain other conditions specified in the Indenture are satisfied, then on or after such date, interest will cease to accrue on the principal amount of this Note called for redemption.
Except as provided above, this Note is not redeemable by the Company prior to maturity and is not subject to any sinking fund.
In case an Event of Default shall occur and be continuing, the principal hereof may be declared, and upon such declaration shall become, due and payable, in the manner, with the effect and subject to the conditions provided in the Indenture.
Subject to certain exceptions set forth in the Indenture, (i) the Indenture may be amended with respect to the Notes with the consent of the Holders of at least a majority in principal amount outstanding of the Notes and (ii) any default or noncompliance with any provisions applicable to the Notes may be waived with the consent of the Holders of a majority in principal amount outstanding of the Notes. Subject to certain exceptions set forth in the Indenture, without the consent of any Holder, the Company and the Trustee may amend the Indenture or the Notes to, among other things, cure any ambiguity, defect or inconsistency, or to provide for the assumption by a successor person of the obligations of the Company under the Indenture, or to add additional covenants or surrender any right or power conferred on the Company, or to establish the form or terms of the Notes of any series, or to appoint a successor Trustee or provide for administration of the trust by more than one Trustee, or to add to, delete from or revise the conditions, limitations, and restrictions on the authorized amount, terms or purposes of issue, authentication and delivery of the Notes or to add any additional event of default, or to modify the provisions of the Indenture as shall be necessary to facilitate the defeasance and discharge of the Notes as shall not adversely affect any Holders, or to secure the Notes, or to make provisions with respect to exchange rights of Holders, or to make any change that does not adversely affect the rights of any Holder.
Subject to certain conditions, the Company at any time may terminate some or all of its obligations under the Notes and the Indenture if the Company deposits with the Trustee money or Government Obligations for the payment of principal, premium, if any, and interest on the Notes to the Maturity Date.
A-5
If money for the payment of principal or interest remains unclaimed for two years, the Trustee or Paying Agent shall pay the money back to the Company at its request unless an abandoned property law designates another Person. After any such payment, Holders entitled to the money must look only to the Company and not to the Trustee for payment.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and premium, if any, and interest on this Note at the place, at the respective times, at the rate, and in the coin or currency herein prescribed.
No director, officer, employee or stockholder, as such, of the Company shall have any liability for any obligations of the Company under this Note or the Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. Each Holder, by accepting this Note, waives and releases all such liability. The waiver and release are part of the consideration for the issue of this Note.
This Note and the Indenture shall be governed by and construed in accordance with the law of the State of New York applicable to agreements made or instruments entered into and, in each case, performed in said state.
Ownership of this Note shall be proved by the register for the Notes kept by the Registrar. The Company, the Trustee and any agent of the Company may treat the Person in whose name a Note is registered as the absolute owner thereof for all purposes.
Pursuant to a recommendation promulgated by the Committee on Uniform Securities Identification Procedures, the Company has caused a CUSIP number to be printed on this Note and has directed the Trustee to use the CUSIP number as a convenience to Holders. No representation is made as to the correctness of such numbers and reliance may be placed only on the other identification numbers printed on this Note.
Terms used herein without definition that are defined in the Indenture shall have the meanings assigned to them in the Indenture.
Unless the Certificate of Authentication hereon has been executed by the Trustee under the Indenture referred to herein by the manual signature of one of its authorized officers, or on behalf of the Trustee by the manual signature of an authorized officer of the Trustee’s authenticating agent, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
[Remainder of Page Intentionally Left Blank]
A-6
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed, manually or by facsimile.
Date: May 1, 2013
| COX COMMUNICATIONS, INC. | ||
| By: | ||
| Name: | ||
| Title: | ||
| By: | ||
| Name: | ||
| Title: | ||
CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated therein referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
as Trustee
| By: | ||
| Authorized Signatory | ||
| Dated: May 1, 2013 | ||
A-7
ASSIGNMENT FORM
| FOR VALUE RECEIVED, the undersigned hereby sell(s) assign(s) and transfer(s) unto | ||
| Please insert social security number 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 attorney to transfer said Note of Cox Communications, Inc. on the books of Cox Communications, Inc. 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 this Note in every particular without alteration or enlargement or any change whatsoever. The Signature must be guaranteed by an “eligible guarantor institution meeting the requirements of the Registrar, which requirements include memberships or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934.
A-8
EXHIBIT A-l(ii)
[FORM OF FACE OF SECURITY]
[US TRANSFER RESTRICTION LEGEND]
[THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED PRIOR TO THE END OF THE PERIOD (THE “RESALE RESTRICTION PERIOD”) FROM THE DATE OF ORIGINAL ISSUANCE UNTIL (A) THE DATE THAT IS ONE YEAR AFTER THE LATER OF (X) THE DATE OF THE ORIGINAL ISSUANCE OF THE NOTES OR (Y) THE LAST DAY ON WHICH THE ISSUER OR ANY OF ITS AFFILIATES WAS THE OWNER OF THE NOTES, AND (B) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAWS, EXCEPT (1) TO THE ISSUER, (2) TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (3) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (4) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), (5) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE 501(a)(l), (2), (3) OR (7) UNDER THE SECURITIES ACT ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF $100,000, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (6) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND WHICH CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH TRANSFER, SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (4) OR (5) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION PERIOD.]
[GLOBAL NOTES LEGEND]
A-9
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON 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.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS, IN WHOLE BUT NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN ARTICLE TWO OF THE THIRTEENTH SUPPLEMENTAL INDENTURE REFERRED TO ON THE REVERSE HEREOF.]
A-10
| No. R- | PRINCIPAL AMOUNT |
| CUSIP No. | $ |
COX COMMUNICATIONS, INC.
4.50% Notes due 2043
COX COMMUNICATIONS, INC., a Delaware corporation (hereinafter called the “Company,” which term includes any successor corporation under the Indenture referred to below), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of [ ] ($ ) on June 30, 2043 (the “Maturity Date”), unless previously redeemed, and to pay interest thereon from May 1, 2013 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, payable semiannually on June 30 and December 30 of each year (each, an “Interest Payment Date”), commencing December 30, 2013, at the rate of 4.50% per annum, until the principal hereof is paid or duly made available for payment. Interest shall be computed on the basis of a 360-day year of twelve 30-day months. The interest so payable and punctually paid or duly provided for on any Interest Payment Date will, as provided in the Indenture, be paid to the Person in whose name this Note (or one or more predecessor securities) is registered at the close of business on the regular record date for such interest, which shall be June 15 or December 15 (whether or not a Business Day), as the case may be, immediately preceding such Interest Payment Date. Any such interest which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date shall forthwith cease to be payable to the registered Holder hereof on the relevant regular record date by virtue of having been such Holder, and may be paid to the Person in whose name this Note (or one or more predecessor securities) is registered at the close of business on a subsequent special record date (which shall be not more than 15 days and not less than 10 days before the payment date) for the payment of such defaulted interest to be fixed by the Trustee, notice whereof shall be given to the Holders of Notes of this series not less than 10 days prior to such special record date, or may be paid at any time in any other lawful manner, all as more fully provided in such Indenture. If any Interest Payment Date, Redemption Date or the Maturity Date falls on a day that is not a Business Day, the required payment shall be made on the next Business Day as if it were made on the date such payment was due and no interest shall accrue on the amount so payable for the period from and after such Interest Payment Date, Redemption Date or the Maturity Date, as the case may be, to such next Business Day. Payments of principal, premium, if any, and interest hereunder shall be made in such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts and shall be made immediately available to the Holder (as defined below) hereof.
A-11
This Note is one of the duly authorized series of Debt Securities of the Company, designated as the Company’s “4.50% Notes due 2043” (the “Notes”), initially limited to an aggregate principal amount of $500,000,000, all issued or to be issued under and pursuant to an Indenture dated as of June 27, 1995 (the “Original Indenture”), as supplemented by the Thirteenth Supplemental Indenture dated as of May 1, 2013 (the “Thirteenth Supplemental Indenture”, and together with the Original Indenture, the “Indenture”), duly executed and delivered by the Company to The Bank of New York Mellon Trust Company, N.A, as trustee (hereinafter referred to as the “Trustee”), to which Indenture and all indentures supplemental thereto reference is hereby made for a description of the rights, limitation of rights, obligations, duties and immunities thereunder of the Trustee, the Company and the Holders (the words “Holders” or “Holder” meaning the registered holders or registered holder of the Notes).
Prior to December 30, 2042, this Note will be redeemable at the option of the Company, in whole at any time or in part from time to time, at a Redemption Price equal to the greater of (i) 100% of the principal amount of this Note to be redeemed or (ii) the sum, as determined by the Quotation Agent, of the present values of the principal amount of this Note to be redeemed and the remaining scheduled payments of interest on the principal amount of this Note to be redeemed (exclusive of interest accrued to the Redemption Date), in each case, discounted from their respective scheduled payment dates to the Redemption Date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as defined below) plus 25 basis points, plus accrued and unpaid interest thereon to, but not including, the Redemption Date. On or after December 30, 2042, this Note will be redeemable at the option of the Company, in whole at any time or in part from time to time, at a Redemption Price equal to 100% of the principal amount of this Note being redeemed, plus accrued and unpaid interest thereon to, but not including, the Redemption Date.
“Comparable Treasury Issue” means, with respect to this Note subject to redemption, the United States Treasury security selected by the Quotation Agent as having an actual or interpolated maturity comparable to the remaining life of this Note to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity with the remaining life of this Note to be redeemed.
“Comparable Treasury Price” means, with respect to any Redemption Date, the average of five Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and lowest of such Reference Treasury Dealer Quotations, or, if the Quotation Agent obtains fewer than four such Reference Treasury Dealer Quotations, the average of all such quotations.
“Quotation Agent” means a Reference Treasury Dealer appointed by the Company.
“Reference Treasury Dealer” means J.P. Morgan Securities LLC, a primary Treasury dealer selected by Wells Fargo Securities, LLC, Barclays Capital Inc., Citigroup Global Markets Inc. and Morgan Stanley & Co. LLC, and each of their respective successors; provided, however, that if any of the foregoing shall cease to be a primary Treasury dealer, the Company will substitute another primary Treasury dealer.
“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and any Redemption Date, the average, as determined by the Quotation Agent, of the bid and asked prices for the Comparable Treasury Issue, expressed in each case as a percentage of its principal amount, quoted in writing to the Quotation Agent by such Reference Treasury Dealer at 3:30 p.m., New York City time, on the third Business Day preceding such Redemption Date.
A-12
“Treasury Rate” means, with respect to any Redemption Date, the rate per annum equal to the semi-annual or equivalent yield to maturity or interpolated (on a day-count basis) of the Comparable Treasury Issue, calculated on the third Business Day preceding such Redemption Date using a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such Redemption Date.
This Note is not subject to any sinking fund.
Notice of any redemption will be mailed at least 30 days but not more than 60 days before the Redemption Date to the Holder hereof at its registered address.
If money sufficient to pay the Redemption Price with respect to and accrued and unpaid interest on the principal amount of this Note to be redeemed on the Redemption Date is deposited with the Trustee or Paying Agent on or before the Redemption Date and certain other conditions specified in the Indenture are satisfied, then on or after such date, interest will cease to accrue on the principal amount of this Note called for redemption.
Except as provided above, this Note is not redeemable by the Company prior to maturity and is not subject to any sinking fund.
In case an Event of Default shall occur and be continuing, the principal hereof may be declared, and upon such declaration shall become, due and payable, in the manner, with the effect and subject to the conditions provided in the Indenture.
Subject to certain exceptions set forth in the Indenture, (i) the Indenture may be amended with respect to the Notes with the consent of the Holders of at least a majority in principal amount outstanding of the Notes and (ii) any default or noncompliance with any provisions applicable to the Notes may be waived with the consent of the Holders of a majority in principal amount outstanding of the Notes. Subject to certain exceptions set forth in the Indenture, without the consent of any Holder, the Company and the Trustee may amend the Indenture or the Notes to, among other things, cure any ambiguity, defect or inconsistency, or to provide for the assumption by a successor person of the obligations of the Company under the Indenture, or to add additional covenants or surrender any right or power conferred on the Company, or to establish the form or terms of the Notes of any series, or to appoint a successor Trustee or provide for administration of the trust by more than one Trustee, or to add to, delete from or revise the conditions, limitations, and restrictions on the authorized amount, terms or purposes of issue, authentication and delivery of the Notes or to add any additional event of default, or to modify the provisions of the Indenture as shall be necessary to facilitate the defeasance and discharge of the Notes as shall not adversely affect any Holders, or to secure the Notes, or to make provisions with respect to exchange rights of Holders, or to make any change that does not adversely affect the rights of any Holder.
Subject to certain conditions, the Company at any time may terminate some or all of its obligations under the Notes and the Indenture if the Company deposits with the Trustee money or Government Obligations for the payment of principal, premium, if any, and interest on the Notes to the Maturity Date.
A-13
If money for the payment of principal or interest remains unclaimed for two years, the Trustee or Paying Agent shall pay the money back to the Company at its request unless an abandoned property law designates another Person. After any such payment, Holders entitled to the money must look only to the Company and not to the Trustee for payment.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and premium, if any, and interest on this Note at the place, at the respective times, at the rate, and in the coin or currency herein prescribed.
No director, officer, employee or stockholder, as such, of the Company shall have any liability for any obligations of the Company under this Note or the Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. Each Holder, by accepting this Note, waives and releases all such liability. The waiver and release are part of the consideration for the issue of this Note.
This Note and the Indenture shall be governed by and construed in accordance with the law of the State of New York applicable to agreements made or instruments entered into and, in each case, performed in said state.
Ownership of this Note shall be proved by the register for the Notes kept by the Registrar. The Company, the Trustee and any agent of the Company may treat the Person in whose name a Note is registered as the absolute owner thereof for all purposes.
Pursuant to a recommendation promulgated by the Committee on Uniform Securities Identification Procedures, the Company has caused a CUSIP number to be printed on this Note and has directed the Trustee to use the CUSIP number as a convenience to Holders. No representation is made as to the correctness of such numbers and reliance may be placed only on the other identification numbers printed on this Note.
Terms used herein without definition that are defined in the Indenture shall have the meanings assigned to them in the Indenture.
Unless the Certificate of Authentication hereon has been executed by the Trustee under the Indenture referred to herein by the manual signature of one of its authorized officers, or on behalf of the Trustee by the manual signature of an authorized officer of the Trustee’s authenticating agent, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
[Remainder of Page Intentionally Left Blank]
A-14
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed, manually or by facsimile.
Date: May 1, 2013
| COX COMMUNICATIONS, INC. | ||
| By: | ||
| Name: | ||
| Title: | ||
| By: | ||
| Name: | ||
| Title: | ||
CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated therein referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
as Trustee
| By: | ||
| Authorized Signatory | ||
| Dated: May 1, 2013 | ||
A-15
ASSIGNMENT FORM
| FOR VALUE RECEIVED, the undersigned hereby sell(s) assign(s) and transfer(s) unto | |||
| Please insert social security number 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 attorney to transfer said Note of Cox Communications, Inc. on the books of Cox Communications, Inc. 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 this Note in every particular without alteration or enlargement or any change whatsoever. The Signature must be guaranteed by an “eligible guarantor institution meeting the requirements of the Registrar, which requirements include memberships or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934.
A-16
EXHIBIT A-2(i)
[FORM OF FACE OF SECURITY]
[REGULATION S LEGEND]
[THE NOTES EVIDENCED HEREBY WERE ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE TRANSFERRED IN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, ANY U.S. PERSON UNTIL THE DATE THAT IS 40 DAYS AFTER THE DATE OF THE ORIGINAL ISSUANCE OF THE NOTES, OR SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAWS. THE TERMS USED ABOVE HAVE THE MEANINGS GIVEN TO THEM IN REGULATION S UNDER THE SECURITIES ACT.]
[THIS GLOBAL NOTE IS A TEMPORARY GLOBAL NOTE FOR PURPOSES OF REGULATIONS UNDER THE SECURITIES ACT. NEITHER THIS TEMPORARY GLOBAL NOTE NOR ANY INTEREST HEREIN MAY BE OFFERED, SOLD OR DELIVERED, EXCEPT AS PERMITTED UNDER THE INDENTURE REFERRED TO BELOW.]
[GLOBAL NOTES LEGEND]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON 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.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS, IN WHOLE BUT NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN ARTICLE TWO OF THE THIRTEENTH SUPPLEMENTAL INDENTURE REFERRED TO ON THE REVERSE HEREOF.]
A-17
| No. R- | PRINCIPAL AMOUNT |
| CUSIP No. | $ |
COX COMMUNICATIONS, INC.
2.95% Notes due 2023
COX COMMUNICATIONS, INC., a Delaware corporation (hereinafter called the “Company,” which term includes any successor corporation under the Indenture referred to below), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of [ ] ($ ) on June 30, 2023 (the “Maturity Date”), unless previously redeemed, and to pay interest thereon from May 1, 2013 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, payable semiannually on June 30 and December 30 of each year (each, an “Interest Payment Date”), commencing December 30, 2013, at the rate of 2.95% per annum, until the principal hereof is paid or duly made available for payment. Interest shall be computed on the basis of a 360-day year of twelve 30-day months. The interest so payable and punctually paid or duly provided for on any Interest Payment Date will, as provided in the Indenture, be paid to the Person in whose name this Note (or one or more predecessor securities) is registered at the close of business on the regular record date for such interest, which shall be June 15 or December 15 (whether or not a Business Day), as the case may be, immediately preceding such Interest Payment Date. Any such interest which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date shall forthwith cease to be payable to the registered Holder hereof on the relevant regular record date by virtue of having been such Holder, and may be paid to the Person in whose name this Note (or one or more predecessor securities) is registered at the close of business on a subsequent special record date (which shall be not more than 15 days and not less than 10 days before the payment date) for the payment of such defaulted interest to be fixed by the Trustee, notice whereof shall be given to the Holders of Notes of this series not less than 10 days prior to such special record date, or may be paid at any time in any other lawful manner, all as more fully provided in such Indenture. If any Interest Payment Date, Redemption Date or the Maturity Date falls on a day that is not a Business Day, the required payment shall be made on the next Business Day as if it were made on the date such payment was due and no interest shall accrue on the amount so payable for the period from and after such Interest Payment Date, Redemption Date or the Maturity Date, as the case may be, to such next Business Day. Payments of principal, premium, if any, and interest hereunder shall be made in such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts and shall be made immediately available to the Holder (as defined below) hereof.
This Note is one of the duly authorized series of Debt Securities of the Company, designated as the Company’s “2.95% Notes due 2023” (the “Notes”), initially limited to an aggregate principal amount of $1,000,000,000, all issued or to be issued under and pursuant to an Indenture dated as of June 27, 1995 (the “Original Indenture”), as supplemented by the Thirteenth Supplemental Indenture dated as of May 1, 2013 (the “Thirteenth Supplemental Indenture”, and together with the Original Indenture, the “Indenture”), duly executed and delivered by the Company to The Bank of New York Mellon Trust Company, N.A, as trustee (hereinafter referred to as the “Trustee”), to which Indenture and all indentures supplemental thereto reference is hereby made for a description of the rights, limitation of rights, obligations, duties and immunities thereunder of the Trustee, the Company and the Holders (the words “Holders” or “Holder” meaning the registered holders or registered holder of the Notes).
A-18
Prior to March 30, 2023, this Note will be redeemable at the option of the Company, in whole at any time or in part from time to time, at a Redemption Price equal to the greater of (i) 100% of the principal amount of this Note to be redeemed or (ii) the sum, as determined by the Quotation Agent, of the present values of the principal amount of this Note to be redeemed and the remaining scheduled payments of interest on the principal amount of this Note to be redeemed (exclusive of interest accrued to the Redemption Date), in each case, discounted from their respective scheduled payment dates to the Redemption Date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as defined below) plus 20 basis points, plus accrued and unpaid interest thereon to, but not including, the Redemption Date. On or after March 30, 2023, this Note will be redeemable at the option of the Company, in whole at any time or in part from time to time, at a Redemption Price equal to 100% of the principal amount of this Note being redeemed, plus accrued and unpaid interest thereon to, but not including, the Redemption Date.
“Comparable Treasury Issue” means, with respect to this Note subject to redemption, the United States Treasury security selected by the Quotation Agent as having an actual or interpolated maturity comparable to the remaining life of this Note to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity with the remaining life of this Note to be redeemed.
“Comparable Treasury Price” means, with respect to any Redemption Date, the average of five Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and lowest of such Reference Treasury Dealer Quotations, or, if the Quotation Agent obtains fewer than four such Reference Treasury Dealer Quotations, the average of all such quotations.
“Quotation Agent” means a Reference Treasury Dealer appointed by the Company.
“Reference Treasury Dealer” means J.P. Morgan Securities LLC, a primary Treasury dealer selected by Wells Fargo Securities, LLC, Barclays Capital Inc., Citigroup Global Markets Inc. and Morgan Stanley & Co. LLC, and each of their respective successors; provided, however, that if any of the foregoing shall cease to be a primary Treasury dealer, the Company will substitute another primary Treasury dealer.
“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and any Redemption Date, the average, as determined by the Quotation Agent, of the bid and asked prices for the Comparable Treasury Issue, expressed in each case as a percentage of its principal amount, quoted in writing to the Quotation Agent by such Reference Treasury Dealer at 3:30 p.m., New York City time, on the third Business Day preceding such Redemption Date.
A-19
“Treasury Rate” means, with respect to any Redemption Date, the rate per annum equal to the semi-annual or equivalent yield to maturity or interpolated (on a day-count basis) of the Comparable Treasury Issue, calculated on the third Business Day preceding such Redemption Date using a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such Redemption Date.
This Note is not subject to any sinking fund.
Notice of any redemption will be mailed at least 30 days but not more than 60 days before the Redemption Date to the Holder hereof at its registered address.
If money sufficient to pay the Redemption Price with respect to and accrued and unpaid interest on the principal amount of this Note to be redeemed on the Redemption Date is deposited with the Trustee or Paying Agent on or before the Redemption Date and certain other conditions specified in the Indenture are satisfied, then on or after such date, interest will cease to accrue on the principal amount of this Note called for redemption.
Except as provided above, this Note is not redeemable by the Company prior to maturity and is not subject to any sinking fund.
In case an Event of Default shall occur and be continuing, the principal hereof may be declared, and upon such declaration shall become, due and payable, in the manner, with the effect and subject to the conditions provided in the Indenture.
Subject to certain exceptions set forth in the Indenture, (i) the Indenture may be amended with respect to the Notes with the consent of the Holders of at least a majority in principal amount outstanding of the Notes and (ii) any default or noncompliance with any provisions applicable to the Notes may be waived with the consent of the Holders of a majority in principal amount outstanding of the Notes. Subject to certain exceptions set forth in the Indenture, without the consent of any Holder, the Company and the Trustee may amend the Indenture or the Notes to, among other things, cure any ambiguity, defect or inconsistency, or to provide for the assumption by a successor person of the obligations of the Company under the Indenture, or to add additional covenants or surrender any right or power conferred on the Company, or to establish the form or terms of the Notes of any series, or to appoint a successor Trustee or provide for administration of the trust by more than one Trustee, or to add to, delete from or revise the conditions, limitations, and restrictions on the authorized amount, terms or purposes of issue, authentication and delivery of the Notes or to add any additional event of default, or to modify the provisions of the Indenture as shall be necessary to facilitate the defeasance and discharge of the Notes as shall not adversely affect any Holders, or to secure the Notes, or to make provisions with respect to exchange rights of Holders, or to make any change that does not adversely affect the rights of any Holder.
Subject to certain conditions, the Company at any time may terminate some or all of its obligations under the Notes and the Indenture if the Company deposits with the Trustee money or Government Obligations for the payment of principal, premium, if any, and interest on the Notes to the Maturity Date.
A-20
If money for the payment of principal or interest remains unclaimed for two years, the Trustee or Paying Agent shall pay the money back to the Company at its request unless an abandoned property law designates another Person. After any such payment, Holders entitled to the money must look only to the Company and not to the Trustee for payment.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and premium, if any, and interest on this Note at the place, at the respective times, at the rate, and in the coin or currency herein prescribed.
No director, officer, employee or stockholder, as such, of the Company shall have any liability for any obligations of the Company under this Note or the Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. Each Holder, by accepting this Note, waives and releases all such liability. The waiver and release are part of the consideration for the issue of this Note.
This Note and the Indenture shall be governed by and construed in accordance with the law of the State of New York applicable to agreements made or instruments entered into and, in each case, performed in said state.
Ownership of this Note shall be proved by the register for the Notes kept by the Registrar. The Company, the Trustee and any agent of the Company may treat the Person in whose name a Note is registered as the absolute owner thereof for all purposes.
Pursuant to a recommendation promulgated by the Committee on Uniform Securities Identification Procedures, the Company has caused a CUSIP number to be printed on this Note and has directed the Trustee to use the CUSIP number as a convenience to Holders. No representation is made as to the correctness of such numbers and reliance may be placed only on the other identification numbers printed on this Note.
Terms used herein without definition that are defined in the Indenture shall have the meanings assigned to them in the Indenture.
Unless the Certificate of Authentication hereon has been executed by the Trustee under the Indenture referred to herein by the manual signature of one of its authorized officers, or on behalf of the Trustee by the manual signature of an authorized officer of the Trustee’s authenticating agent, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
[Remainder of Page Intentionally Left Blank]
A-21
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed, manually or by facsimile.
Date: May 1, 2013
| COX COMMUNICATIONS, INC. | ||
| By: | ||
| Name: | ||
| Title: | ||
| By: | ||
| Name: | ||
| Title: | ||
CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated therein referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
as Trustee
| By: | ||
| Authorized Signatory | ||
| Dated: May 1, 2013 | ||
A-22
ASSIGNMENT FORM
| FOR VALUE RECEIVED, the undersigned hereby sell(s) assign(s) and transfer(s) unto | ||
| Please insert social security number 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 attorney to transfer said Note of Cox Communications, Inc. on the books of Cox Communications, Inc. 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 this Note in every particular without alteration or enlargement or any change whatsoever. The Signature must be guaranteed by an “eligible guarantor institution meeting the requirements of the Registrar, which requirements include memberships or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934.
A-23
EXHIBIT A-2(ii)
[FORM OF FACE OF SECURITY]
[REGULATION S LEGEND]
[THE NOTES EVIDENCED HEREBY WERE ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE TRANSFERRED IN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, ANY U.S. PERSON UNTIL THE DATE THAT IS 40 DAYS AFTER THE DATE OF THE ORIGINAL ISSUANCE OF THE NOTES, OR SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAWS. THE TERMS USED ABOVE HAVE THE MEANINGS GIVEN TO THEM IN REGULATION S UNDER THE SECURITIES ACT.]
[THIS GLOBAL NOTE IS A TEMPORARY GLOBAL NOTE FOR PURPOSES OF REGULATION S UNDER THE SECURITIES ACT. NEITHER THIS TEMPORARY GLOBAL NOTE NOR ANY INTEREST HEREIN MAY BE OFFERED, SOLD OR DELIVERED, EXCEPT AS PERMITTED UNDER THE INDENTURE REFERRED TO BELOW.]
[GLOBAL NOTES LEGEND]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON 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.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS, IN WHOLE BUT NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN ARTICLE TWO OF THE THIRTEENTH SUPPLEMENTAL INDENTURE REFERRED TO ON THE REVERSE HEREOF.]
A-24
| No. R- | PRINCIPAL AMOUNT |
| CUSIP No. | $ |
COX COMMUNICATIONS, INC.
4.50% Notes due 2043
COX COMMUNICATIONS, INC., a Delaware corporation (hereinafter called the “Company,” which term includes any successor corporation under the Indenture referred to below), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of [ ] ($ ) on June 30, 2043 (the “Maturity Date”), unless previously redeemed, and to pay interest thereon from May 1, 2013 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, payable semiannually on June 30 and December 30 of each year (each, an “Interest Payment Date”), commencing December 30, 2013, at the rate of 4.50% per annum, until the principal hereof is paid or duly made available for payment. Interest shall be computed on the basis of a 360-day year of twelve 30-day months. The interest so payable and punctually paid or duly provided for on any Interest Payment Date will, as provided in the Indenture, be paid to the Person in whose name this Note (or one or more predecessor securities) is registered at the close of business on the regular record date for such interest, which shall be June 15 or December 15 (whether or not a Business Day), as the case may be, immediately preceding such Interest Payment Date. Any such interest which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date shall forthwith cease to be payable to the registered Holder hereof on the relevant regular record date by virtue of having been such Holder, and may be paid to the Person in whose name this Note (or one or more predecessor securities) is registered at the close of business on a subsequent special record date (which shall be not more than 15 days and not less than 10 days before the payment date) for the payment of such defaulted interest to be fixed by the Trustee, notice whereof shall be given to the Holders of Notes of this series not less than 10 days prior to such special record date, or may be paid at any time in any other lawful manner, all as more fully provided in such Indenture. If any Interest Payment Date, Redemption Date or the Maturity Date falls on a day that is not a Business Day, the required payment shall be made on the next Business Day as if it were made on the date such payment was due and no interest shall accrue on the amount so payable for the period from and after such Interest Payment Date, Redemption Date or the Maturity Date, as the case may be, to such next Business Day. Payments of principal, premium, if any, and interest hereunder shall be made in such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts and shall be made immediately available to the Holder (as defined below) hereof.
This Note is one of the duly authorized series of Debt Securities of the Company, designated as the Company’s “4.50% Notes due 2043” (the “Notes”), initially limited to an aggregate principal amount of $500,000,000, all issued or to be issued under and pursuant to an Indenture dated as of June 27, 1995 (the “Original Indenture”), as supplemented by the Thirteenth Supplemental Indenture dated as of May 1, 2013 (the “Thirteenth Supplemental Indenture”, and together with the Original Indenture, the “Indenture”), duly executed and delivered by the Company to The Bank of New York Mellon Trust Company, N.A, as trustee (hereinafter referred to as the “Trustee”), to which Indenture and all indentures supplemental thereto reference is hereby made for a description of the rights, limitation of rights, obligations, duties and immunities thereunder of the Trustee, the Company and the Holders (the words “Holders” or “Holder” meaning the registered holders or registered holder of the Notes).
A-25
Prior to December 30, 2042, this Note will be redeemable at the option of the Company, in whole at any time or in part from time to time, at a Redemption Price equal to the greater of (i) 100% of the principal amount of this Note to be redeemed or (ii) the sum, as determined by the Quotation Agent, of the present values of the principal amount of this Note to be redeemed and the remaining scheduled payments of interest on the principal amount of this Note to be redeemed (exclusive of interest accrued to the Redemption Date), in each case, discounted from their respective scheduled payment dates to the Redemption Date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as defined below) plus 25 basis points, plus accrued and unpaid interest thereon to, but not including, the Redemption Date. On or after December 30, 2042, this Note will be redeemable at the option of the Company, in whole at any time or in part from time to time, at a Redemption Price equal to 100% of the principal amount of this Note being redeemed, plus accrued and unpaid interest thereon to, but not including, the Redemption Date.
“Comparable Treasury Issue” means, with respect to this Note subject to redemption, the United States Treasury security selected by the Quotation Agent as having an actual or interpolated maturity comparable to the remaining life of this Note to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity with the remaining life of this Note to be redeemed.
“Comparable Treasury Price” means, with respect to any Redemption Date, the average of five Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and lowest of such Reference Treasury Dealer Quotations, or, if the Quotation Agent obtains fewer than four such Reference Treasury Dealer Quotations, the average of all such quotations.
“Quotation Agent” means a Reference Treasury Dealer appointed by the Company.
“Reference Treasury Dealer” means J.P. Morgan Securities LLC, a primary Treasury dealer selected by Wells Fargo Securities, LLC, Barclays Capital Inc., Citigroup Global Markets Inc. and Morgan Stanley & Co. LLC, and each of their respective successors; provided, however, that if any of the foregoing shall cease to be a primary Treasury dealer, the Company will substitute another primary Treasury dealer.
“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and any Redemption Date, the average, as determined by the Quotation Agent, of the bid and asked prices for the Comparable Treasury Issue, expressed in each case as a percentage of its principal amount, quoted in writing to the Quotation Agent by such Reference Treasury Dealer at 3:30 p.m., New York City time, on the third Business Day preceding such Redemption Date.
A-26
“Treasury Rate” means, with respect to any Redemption Date, the rate per annum equal to the semi-annual or equivalent yield to maturity or interpolated (on a day-count basis) of the Comparable Treasury Issue, calculated on the third Business Day preceding such Redemption Date using a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such Redemption Date.
This Note is not subject to any sinking fund.
Notice of any redemption will be mailed at least 30 days but not more than 60 days before the Redemption Date to the Holder hereof at its registered address.
If money sufficient to pay the Redemption Price with respect to and accrued and unpaid interest on the principal amount of this Note to be redeemed on the Redemption Date is deposited with the Trustee or Paying Agent on or before the Redemption Date and certain other conditions specified in the Indenture are satisfied, then on or after such date, interest will cease to accrue on the principal amount of this Note called for redemption.
Except as provided above, this Note is not redeemable by the Company prior to maturity and is not subject to any sinking fund.
In case an Event of Default shall occur and be continuing, the principal hereof may be declared, and upon such declaration shall become, due and payable, in the manner, with the effect and subject to the conditions provided in the Indenture.
Subject to certain exceptions set forth in the Indenture, (i) the Indenture may be amended with respect to the Notes with the consent of the Holders of at least a majority in principal amount outstanding of the Notes and (ii) any default or noncompliance with any provisions applicable to the Notes may be waived with the consent of the Holders of a majority in principal amount outstanding of the Notes. Subject to certain exceptions set forth in the Indenture, without the consent of any Holder, the Company and the Trustee may amend the Indenture or the Notes to, among other things, cure any ambiguity, defect or inconsistency, or to provide for the assumption by a successor person of the obligations of the Company under the Indenture, or to add additional covenants or surrender any right or power conferred on the Company, or to establish the form or terms of the Notes of any series, or to appoint a successor Trustee or provide for administration of the trust by more than one Trustee, or to add to, delete from or revise the conditions, limitations, and restrictions on the authorized amount, terms or purposes of issue, authentication and delivery of the Notes or to add any additional event of default, or to modify the provisions of the Indenture as shall be necessary to facilitate the defeasance and discharge of the Notes as shall not adversely affect any Holders, or to secure the Notes, or to make provisions with respect to exchange rights of Holders, or to make any change that does not adversely affect the rights of any Holder.
Subject to certain conditions, the Company at any time may terminate some or all of its obligations under the Notes and the Indenture if the Company deposits with the Trustee money or Government Obligations for the payment of principal, premium, if any, and interest on the Notes to the Maturity Date.
A-27
If money for the payment of principal or interest remains unclaimed for two years, the Trustee or Paying Agent shall pay the money back to the Company at its request unless an abandoned property law designates another Person. After any such payment, Holders entitled to the money must look only to the Company and not to the Trustee for payment.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and premium, if any, and interest on this Note at the place, at the respective times, at the rate, and in the coin or currency herein prescribed.
No director, officer, employee or stockholder, as such, of the Company shall have any liability for any obligations of the Company under this Note or the Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. Each Holder, by accepting this Note, waives and releases all such liability. The waiver and release are part of the consideration for the issue of this Note.
This Note and the Indenture shall be governed by and construed in accordance with the law of the State of New York applicable to agreements made or instruments entered into and, in each case, performed in said state.
Ownership of this Note shall be proved by the register for the Notes kept by the Registrar. The Company, the Trustee and any agent of the Company may treat the Person in whose name a Note is registered as the absolute owner thereof for all purposes.
Pursuant to a recommendation promulgated by the Committee on Uniform Securities Identification Procedures, the Company has caused a CUSIP number to be printed on this Note and has directed the Trustee to use the CUSIP number as a convenience to Holders. No representation is made as to the correctness of such numbers and reliance may be placed only on the other identification numbers printed on this Note.
Terms used herein without definition that are defined in the Indenture shall have the meanings assigned to them in the Indenture.
Unless the Certificate of Authentication hereon has been executed by the Trustee under the Indenture referred to herein by the manual signature of one of its authorized officers, or on behalf of the Trustee by the manual signature of an authorized officer of the Trustee’s authenticating agent, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
[Remainder of Page Intentionally Left Blank]
A-28
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed, manually or by facsimile.
Date: May 1, 2013
| COX COMMUNICATIONS, INC. | ||
| By: | ||
| Name: | ||
| Title: | ||
| By: | ||
| Name: | ||
| Title: | ||
CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated therein referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
as Trustee
| By: | ||
| Authorized Signatory | ||
| Dated: May 1, 2013 | ||
A-29
ASSIGNMENT FORM
| FOR VALUE RECEIVED, the undersigned hereby sell(s) assign(s) and transfer(s) unto | ||
| Please insert social security number 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 attorney to transfer said Note of Cox Communications, Inc. on the books of Cox Communications, Inc. 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 this Note in every particular without alteration or enlargement or any change whatsoever. The Signature must be guaranteed by an “eligible guarantor institution meeting the requirements of the Registrar, which requirements include memberships or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934.
A-30
EXHIBIT B-1
Transfer Certificate
In connection with a transfer of any of the $ principal amount of the % Notes due 20 (the “Notes”) of Cox Communications, Inc. (the “Company”) within the period prior to the expiration of the holding period applicable to the sales thereof under Rule 144 under the Securities Act of 1933, as amended (the “Securities Act”) (or any successor provision), the undersigned registered owner of this Note hereby certifies with respect to $ principal amount of the above-captioned securities presented or surrendered on the date hereof (the “Surrendered Notes”) for registration of transfer, or for exchange where the securities deliverable upon such exchange are to be registered in a name other than that of the undersigned registered owner (each such transaction being a “transfer”), that such transfer complies with the restrictive legend set forth on the face of the Surrendered Notes for the reason checked below:
| ¨ | A transfer of the Surrendered Notes is made to the Company or any subsidiaries; | |
| ¨ | The transfer of the Surrendered Notes complies with Rule 144A under the Securities Act; | |
| ¨ | The transfer of the Surrendered Notes is to an institutional accredited investor, as described in Rule 50l(a)(l), (2), (3) or (7) of Regulation D under the Securities Act; | |
| ¨ | The transfer of the Surrendered Notes is pursuant to an effective registration statement under the Securities Act; | |
| ¨ | The transfer of the Surrendered Notes is pursuant to an offshore transaction in accordance with Rule 904 of Regulation S under the Securities Act; or | |
| ¨ | The transfer of the Surrendered Notes is pursuant to another available exemption from the registration requirement of the Securities Act. |
and unless the box below is checked, the undersigned confirms that, to the undersigned’s knowledge, such Notes are not being transferred to an “affiliate” of the Company as defined in Rule 144 under the Securities Act (an “Affiliate”).
| ¨ | The transferee is an Affiliate of the Company. |
| DATE: | |||
| Signature(s) |
(If the registered owner is a corporation, partnership
or fiduciary, the title of the Person signing on behalf
of such registered owner must be stated.)
B-1-1
EXHIBIT B-2
Form of Letter to be Delivered by Accredited Investors
Cox Communications, Inc.
1400 Lake Hearn Drive, NE
Atlanta, Georgia 30319
Attention: Treasurer
The Bank of New York Mellon Trust Company, N.A., as Registrar
100 Ashford Center North, Suite 520
Atlanta, Georgia 30338
Attention: Corporate Trust Office
Dear Sirs:
We are delivering this letter in connection with the proposed transfer of $ principal amount of the % Notes due 20 (the “Notes”) of Cox Communications, Inc. (the “Company”).
We hereby confirm that:
(i) we are an “accredited investor” within the meaning of Rule 50l(a)(l), (2), (3) or (7) of Regulation D under the Securities Act of 1933, as amended (the “Securities Act”), or an entity in which all of the equity owners are accredited investors within the meaning of Rule 50l(a)(l), (2), (3) or (7) of Regulation D under the Securities Act (an “Institutional Accredited Investor”);
(ii) (A) the purchase of Notes by us is for our own account or for the account of one or more other Institutional Accredited Investors or as fiduciary for the account of one or more trusts, each of which is an “accredited investor” within the meaning of Rule 50l(a)(7) under the Securities Act and for each of which we exercise sole investment discretion or (B) we are a “bank,” within the meaning of Section 3(a)(2) of the Securities Act, or a “savings and loan association” or other institution described in Section 3(a)(5)(A) of the Securities Act that is acquiring Notes as fiduciary for the account of one or more institutions for which we exercise sole investment discretion;
(iii) we will acquire Notes having a minimum principal amount of not less than $100,000 for our own account or for any separate account for which we are acting;
(iv) we have such knowledge and experience in financial and business matters that we are capable of evaluating the merits and risks of purchasing Notes; and
(v) we are not acquiring Notes with a view to distribution thereof or with any present intention of offering or selling Notes, except as permitted below; provided that the disposition of our property and property of any accounts for which we are acting as fiduciary shall remain at all times within our control.
B-2-1
We understand that the Notes were originally offered and sold in a transaction not involving any public offering within the United States within the meaning of the Securities Act and that the Notes have not been registered under the Securities Act, and we agree, on our own behalf and on behalf of each account for which we acquire any Notes, that we will offer, sell or otherwise transfer such Notes, or any beneficial interest therein, prior to the end of the period (the “Resale Restriction Period”) from the date of original issuance until (a) the date that is one year after the later of (x) the date of the original issuance of the Notes or (y) the last day on which the Issuer or any of its Affiliates was the owner of the Notes, and (b) such later date, if any, as may be required by applicable laws only:
(1) to the Company or any subsidiary thereof, or
(2) for as long as the Notes are eligible for resale pursuant to Rule 144A, to a person we reasonably believe is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) that purchases for its own account or for the account of a qualified institutional buyer to which notice is given that the transfer is being made in reliance on Rule 144A, or
(3) to an Institutional Accredited Investor that is acquiring the Note for its own account, or for the account of such Institutional Accredited Investor for investment purposes and not with a view to, or for offer or sale in connection with, any distribution in violation of the Securities Act, or
(4) pursuant to a registration statement which has been declared effective under the Securities Act, or
(5) outside the United States to non-U.S. persons in an offshore transaction in accordance with Rule 904 of Regulation S under the Securities Act, or
(6) pursuant to another available exemption from registration under the Securities Act, including under Rule 144, if available, and, in each case, in accordance with any applicable securities laws of any State of the United States or any other applicable jurisdiction and in accordance with and subject to the legends set forth on the Notes.
We acknowledge that the Company, others and you will rely upon our confirmations, acknowledgments and agreements set forth herein, and we agree to notify you promptly in writing if any of our representations or warranties herein ceases to be accurate and complete.
B-2-2
THIS LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK.
| (Name of Purchaser) | ||
| By: | ||
| Name: | ||
| Title: | ||
| Address: | ||
B-2-3
Exhibit 4.12
EXECUTION VERSION
COX COMMUNICATIONS, INC.
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
as Trustee
FOURTEENTH SUPPLEMENTAL INDENTURE
Dated as of December 8, 2014
Supplement to Indenture
Dated as of June 27, 1995
Creating two series of Debt Securities designated
3.85% Notes due 2025
4.80% Notes due 2035
FOURTEENTH SUPPLEMENTAL INDENTURE, dated as of the 8th day of December, 2014 between COX COMMUNICATIONS, INC., a corporation existing under the laws of the State of Delaware, having its principal executive office located at 1400 Lake Hearn Drive, NE, Atlanta, Georgia 30319 (the “Company”), and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., a national banking association, having a designated corporate trust office located at 10161 Centurion Parkway N., Jacksonville, Florida 32256, as trustee (the “Trustee”);
WHEREAS, the Company has heretofore executed and delivered to the Trustee an Indenture, dated as of June 27, 1995 (the “Original Indenture” and, as amended by this Supplemental Indenture, the “Indenture”), providing for the issuance by the Company from time to time of its debentures, notes, bonds or other evidences of indebtedness (in the Original Indenture and herein called the “Debt Securities”), unlimited as to principal amount, to be issued in one or more series;
WHEREAS, the Company, in the exercise of the power and authority conferred upon and reserved to it under the provisions of the Original Indenture and pursuant to appropriate resolutions of the Board of Directors, has duly determined to make, execute and deliver to the Trustee this Supplemental Indenture to the Original Indenture in order to establish the form and terms of, and to provide for the creation and issuance of, two new series of Debt Securities designated as the “3.85% Notes due 2025” in the initial aggregate principal amount of $700,000,000 (the “2025 Notes”) and the “4.80% Notes due 2035” in the initial aggregate principal amount of $650,000,000 (the “2035 Notes” and, together with the 2025 Notes, the “Notes”);
WHEREAS, Section 9.01 of the Original Indenture provides, among other things, that the Company and the Trustee, at any time and from time to time, without the consent of any Holders, may enter into an indenture supplemental to the Original Indenture to establish the form or terms of Debt Securities of any series as permitted by Sections 2.01 and 2.03 of the Original Indenture;
WHEREAS, all things necessary to make the Notes, when executed by the Company and authenticated and delivered by the Trustee and issued upon the terms and subject to the conditions hereinafter and in the Original Indenture set forth against payment therefor, the valid, binding and legal obligations of the Company and to make this Supplemental Indenture a valid, binding and legal agreement of the Company, have been done;
NOW, THEREFORE, THIS FOURTEENTH SUPPLEMENTAL INDENTURE WITNESSETH that, in order to establish the form and terms of the series of Debt Securities designated as the “3.85% Notes due 2025” and the “4.80% Notes due 2035” and for and in consideration of the premises and of the covenants contained in the Original Indenture and in this Supplemental Indenture and for other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of the Notes, as follows:
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ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101 Definitions. For all purposes of the Original Indenture and this Supplemental Indenture relating to the series of Debt Securities (consisting of the Notes) created hereby, except as otherwise expressly provided or unless the context otherwise requires, the terms defined in this Article have the meanings assigned to them in this Article. Each capitalized term that is used in the Original Indenture and this Supplemental Indenture but not defined herein shall have the meaning specified in the Original Indenture.
“Agent Members” has the meaning specified in Section 209(e)(v) of this Supplemental Indenture.
“Applicable Procedures” means, with respect to any transfer or transaction involving a Global Note or beneficial interest therein, the rules and procedures of the Depositary for such Note, in each case to the extent applicable to such transaction and as in effect from time to time.
“Business Day” means any day other than a Saturday, a Sunday or a legal holiday or a day on which banking institutions or trust companies in The City of New York are authorized or obligated by law to close.
“cash” means U.S. legal tender.
“Certificated Notes” means the Notes issued in certificated, registered form without interest coupons and not required to bear the Legend set forth in Section 207(a)(ii) of this Supplemental Indenture.
“Clearstream” means Clearstream Banking, societe anonyme (formerly Cedelbank).
“Debt Securities” has the meaning specified in the first recital hereof.
“Depositary” means, with respect to the Notes issuable in whole or in part in global form, DTC and any nominee thereof, until a successor shall have been appointed and become such pursuant to the applicable provisions of the Indenture, and thereafter “Depositary” shall mean or include such successor and any nominee thereof.
“Distribution Compliance Period” means the 40-day distribution compliance period as defined in Regulation S, or such later date, if any, as may be required by applicable laws.
“DTC” means The Depository Trust Company.
“Euroclear” means the Euroclear System.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
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“Global Note” means a Note issued in global form, bearing the legends set forth in Section 207(a)(ii) of this Supplemental Indenture, and deposited with or on behalf of the Depositary.
“Holder” and “Noteholder”, in the case of any Note, means the Person in whose name such Note is registered in the Debt Security Register.
“Institutional Accredited Investor” means an institutional “accredited investor” as defined in Rule 50l(a)(l), (2), (3) and (7) under the Securities Act.
“Interest Payment Date,” in respect of any Note, has the meaning assigned to it in such Note.
“Issue Date” means December 8, 2014.
“Legend” means the Transfer Restriction Legend as defined in Section 207(c) of this Supplemental Indenture.
“Notes” has the meaning specified in the recitals hereof.
“Purchase Agreement” means the Purchase Agreement dated December 1, 2014, among the Company and Barclays Capital Inc., Citigroup Global Markets Inc., Morgan Stanley & Co. LLC, J.P. Morgan Securities LLC, Mizuho Securities USA Inc. and Wells Fargo Securities, LLC, acting as representatives on behalf of the Initial Purchasers (as defined therein).
“Qualified Institutional Buyer” has the meaning specified in Rule 144A.
“Redemption Date”, with respect to any 2025 Note or 2035 Note or portion thereof to be redeemed, means the date fixed for redemption in accordance with the terms of such Note and Article III of the Original Indenture.
“Redemption Price”, with respect to any 2025 Note or 2035 Note or portion thereof to be redeemed, means the price at which it is to be redeemed as determined in accordance with the terms of the applicable Note and Article III of the Original Indenture.
“Regulation S’’ means Regulation S under the Securities Act.
“Regulation S Global Note” means a Regulation S Temporary Global Note or Regulation S Permanent Global Note, as applicable.
“Regulation S Permanent Global Note” means a permanent Global Note in the form of the Note attached hereto as Exhibit A-2(i) or Exhibit A-2(ii), and that is deposited with and registered in the name of the Depositary, issued in a denomination equal to the outstanding principal amount of the Regulation S Temporary Global Note upon expiration of the Distribution Compliance Period.
“Regulation S Temporary Global Note” means a temporary Global Note in the form of the Note attached hereto as Exhibit A-2(i) or Exhibit A-2(ii), and that is deposited with and registered in the name of the Depositary, representing Notes sold in offshore transactions in reliance on Regulation S.
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“Resale Restriction Termination Date” means (1) in the case of U.S. Global Notes, the date that is one year after the later of (a) the Issue Date and (b) the last date on which the Company or any Affiliate of the Company was the owner of such Notes or, in the case of Regulation S Notes, the date that is 40 days after the later of (a) the Issue Date and (b) the last date on which the Company or any Affiliate of the Company was the owner of such Notes and (2) such later date, if any, as may be required by applicable laws.
“Restricted Note” means a Note required to bear the Transfer Restriction Legend pursuant to Section 207(c) of this Supplemental Indenture and set forth on the forms of Notes attached as Exhibit A-1 and Exhibit A-2 to this Supplemental Indenture.
“Rule 144A” means Rule 144A under the Securities Act (or any successor provision), as it may be amended from time to time.
“Securities Act” means the Securities Act of 1933, as amended.
“Supplemental Indenture” means this Fourteenth Supplemental Indenture.
“Transfer Restriction Legend” has the meaning specified in Section 207(c) of this Supplemental Indenture.
“Trustee” has the meaning specified in the first paragraph hereof.
“U.S. Global Note” means a Global Note in the form of the Note attached hereto as Exhibit A-1(i) or Exhibit A-1(ii) to this Supplemental Indenture, and that is deposited with and registered in the name of the Depositary, representing Notes sold in reliance on Rule 144A.
SECTION 102 Section References. Each reference to a particular section set forth in this Supplemental Indenture shall, unless the context otherwise requires, refer to this Supplemental Indenture.
SECTION 103 Effect of Supplemental Indenture. Except as set forth below and except as expressly amended hereby, the Original Indenture shall continue in full force and effect in accordance with the provisions thereof, and the Original Indenture is in all respects hereby ratified and confirmed. This Supplemental Indenture and all its provisions shall be deemed a part of the Original Indenture in the manner and to the extent herein and therein provided. The Original Indenture and this Supplemental Indenture shall be read, taken and construed as one and the same instrument.
This Supplemental Indenture amends and supplements and, to the extent inconsistent therewith, replaces the provisions of the Original Indenture, to which provisions reference is hereby made. For the avoidance of doubt, the provisions of Section 210 hereof amend Section 6.01 of the Original Indenture as set forth in such Section 210; the provisions of Article 3 hereof replace the provisions of Section 5.03 of the Original Indenture in their entirety; and the provisions of Article 4 hereof amend the provisions of Section 7.02 of the Original Indenture as set forth in such Article 4.
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The amendments and supplements to, and replacements of the provisions of, the Original Indenture effected by this Supplemental Indenture shall be applicable only with respect to, and govern the terms of, the Debt Securities issued pursuant to this Supplemental Indenture, and shall not apply to any other Debt Securities that have been or may be issued under the Original Indenture unless a supplemental indenture with respect to such other Debt Securities specifically incorporates such amendments, supplements and replacements.
The provisions of Article XI of the Original Indenture shall apply to the Notes.
ARTICLE 2
THE NOTES
SECTION 201 Title of the Notes. The Notes shall be known and designated as the “3.85% Notes due 2025” and the “4.80% Notes due 2035” of the Company, respectively.
SECTION 202 Amount. The aggregate principal amount of Notes that may be authenticated and delivered under this Supplemental Indenture is initially limited to $700,000,000 for the 2025 Notes and $650,000,000 for the 2035 Notes, except for Notes authenticated and delivered upon registration of, transfer of, or exchange for, or in lieu of, other Notes pursuant to Section 2.07, 2.08, 2.09 or 9.04 of the Indenture, or upon repayment in part of any 2025 Note or 2035 Note pursuant to Article III of the Original Indenture. The Company may, from time to time, subject to compliance with any other applicable provisions of this Fourteenth Supplemental Indenture but without the consent of the Holders, create and issue pursuant to this Fourteenth Supplemental Indenture an unlimited principal amount of additional Notes (in excess of any amounts theretofore issued) having the same terms and conditions to those of the other outstanding Notes, except that any such additional Notes (i) may have a different issue date and issue price from other outstanding Notes and (ii) may have a different amount of interest payable on the first Interest Payment Date after issuance than the amount payable on other outstanding Notes.
SECTION 203 Stated Maturity. The Stated Maturity of the 2025 Notes shall be February 1, 2025. The Stated Maturity of the 2035 Notes shall be February 1, 2035.
SECTION 204 Interest.
(a) The 2025 Notes shall bear cash interest at the rate of 3.85% per annum from December 8, 2014 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, payable semiannually on February 1 and August 1 of each year, beginning on August 1, 2015, to the Persons in whose names such Notes are registered at the close of business on the immediately preceding January 15 or July 15, as the case may be, whether or not a Business Day. Interest on the 2025 Notes will be computed on the basis of a 360-day year of twelve 30-day months.
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(b) The 2035 Notes shall bear cash interest at the rate of 4.80% per annum from December 8, 2014 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, payable semiannually on February 1 and August 1 of each year, beginning on August 1, 2015, to the Persons in whose names such Notes are registered at the close of business on the immediately preceding January 15 or July 15, as the case may be, whether or not a Business Day. Interest on the 2035 Notes will be computed on the basis of a 360-day year of twelve 30-day months.
SECTION 205 Payments.
(a) Payments of principal, premium, if any, and interest on the Notes will be made to the Depositary, or its nominee, as the case may be, as the registered owner and holder of the Global Notes representing the Notes. In the event that the Notes are issued in the form of Certificated Notes, payments of principal, premium, if any, and interest thereon will be at the office or agency of the Trustee in The City of New York designated for such purpose; provided that payment of interest, other than interest payable at Stated Maturity or upon redemption, may be made at the option of the Company by check mailed by the Trustee to the address of the Person entitled as shown on the register for such Debt Securities.
(b) If any Stated Maturity Date, Redemption Date or Interest Payment Date, falls on a day that is not a Business Day, the required payment shall be made on the next Business Day, and no interest shall accrue on the amount so payable for the period between such payment date and the next Business Day.
(c) Payments of principal, premium, if any, and interest on the Notes shall be made in cash or such other coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debt.
SECTION 206 Redemption. Each series of Notes shall be redeemable, in whole or in part, on one or more Redemption Dates at the applicable Redemption Price. If the Redemption Date is not an Interest Payment Date, the amount of the scheduled interest payment on the next succeeding Interest Payment Date will be reduced by the amount of interest accrued to the Redemption Date.
SECTION 207 Forms; Denominations. The Notes shall be Registered Securities. The Global Notes representing the Notes shall be in substantially the forms attached hereto as Exhibits A-1 and A-2.
The Notes are being offered and sold by the Company pursuant to the Purchase Agreement.
(a) Global Notes. (i) Notes offered and sold in reliance on Rule 144A as provided in the Purchase Agreement shall be issued initially in the form of one or more U.S. Global Notes in definitive fully registered form without interest coupons, deposited on behalf of the subscribers for the Notes represented thereby with the Trustee, as custodian for the Depositary and registered in the name of DTC or a nominee thereof, duly executed by the Company and authenticated by the Trustee as provided in the Indenture. The aggregate principal amount of the U.S. Global Notes may from time to time be increased or decreased by adjustments made on the records of the Trustee and the Depositary as hereinafter provided.
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Notes offered and sold in offshore transactions in reliance on Regulation S as provided in the Purchase Agreement shall be issued initially in the form of one or more Regulation S Temporary Global Notes in definitive fully registered form without interest coupons, deposited on behalf of the subscribers for the Notes represented thereby with the Trustee, as custodian for the Depositary, for the accounts of Euroclear and Clearstream and registered in the name of DTC or a nominee thereof, duly executed by the Company and authenticated by the Trustee as hereinafter provided. The Distribution Compliance Period shall be terminated upon the receipt by the Trustee of a written certificate from the Depositary, if available, together with copies of certificates from Euroclear and Clearstream, if available, certifying that they have received certification of non-United States beneficial ownership of 100% of the aggregate principal amount of the Regulation S Temporary Global Note (except to the extent of any beneficial owners thereof who acquired an interest therein during the Restricted Period pursuant to another exemption from registration under the Securities Act and who shall take delivery of a beneficial ownership interest in a U.S. Global Note bearing a Legend, all as contemplated by Section 209(a)(iii) hereof).
Following the termination of the Distribution Compliance Period, beneficial interests in the Regulation S Temporary Global Note shall be exchanged for beneficial interests in the Regulation S Permanent Global Note pursuant to the Applicable Procedures. Simultaneously with the authentication of the Regulation S Permanent Global Note, the Trustee shall cancel the Regulation S Temporary Global Note. The aggregate principal amount of the Regulation S Temporary Global Note and the Regulation S Permanent Global Note may from time to time be increased or decreased by adjustments made on the records of the Trustee and the Depositary as hereinafter provided.
Each Global Note shall represent such of the outstanding Notes as shall be specified therein and each shall provide that it shall represent the aggregate principal amount of outstanding Notes from time to time endorsed thereon and the aggregate principal amount of outstanding Notes represented thereby may from time to time be reduced to reflect exchanges or redemptions. Any adjustment of the aggregate principal amount of a Global Note representing the Notes to reflect the amount of any decrease in the principal amount of outstanding Notes represented thereby shall be made by the Trustee in accordance with instructions given by the Holder thereof as required by Section 209 hereof and shall be made on the records of the Trustee and the Depositary.
| (ii) | Book-Entry Provisions. This Section 207(a)(ii) shall apply only to Global Notes. |
The Company shall execute and the Trustee shall, in accordance with this Section 207(a)(ii) and Section 2.02 of the Indenture, authenticate and deliver initially one or more Global Notes that (a) shall be registered in the name of the Depositary, (b) shall be delivered by the Trustee to the Depositary or pursuant to the Depositary’s instructions and (c) shall bear legends substantially to the following effect:
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“UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON 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.
“TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS, IN WHOLE BUT NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN ARTICLE TWO OF THE FOURTEENTH SUPPLEMENTAL INDENTURE REFERRED TO ON THE REVERSE HEREOF.”
(b) Certificated Notes. Except as otherwise set forth in this Supplemental Indenture, owners of beneficial interests in Global Notes will not be entitled to receive physical delivery of Certificated Notes. Beneficial interests in a Global Note transferred in accordance with Section 209(a)(ii) to an Institutional Accredited Investor who is not a Qualified Institutional Buyer and beneficial interests in a Global Note transferred to the beneficial holders thereof pursuant to Section 209(e) will be issued in certificated, registered form without interest coupons.
(c) Restrictive Legends. Prior to the Resale Restriction Termination Date, all Global Notes and all Certificated Notes issued in exchange for a beneficial interest in a Global Note shall bear a legend (the “Transfer Restriction Legend”) in substantially the following form, unless such Notes have been sold pursuant to a registration statement that has been declared effective under the Securities Act:
“THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
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“THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS A NON-U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH THE LAWS APPLICABLE TO SUCH PURCHASER IN THE JURISDICTION IN WHICH SUCH PURCHASE IS MADE AND (2) AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) THAT IS, IN THE CASE OF U.S. GLOBAL NOTES: ONE YEAR AND IN THE CASE OF REGULATION S GLOBAL NOTES: 40 DAYS, AFTER THE LATER OF THE ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH THE LAWS APPLICABLE TO IT IN THE JURISDICTION IN WHICH SUCH PURCHASE IS MADE, (D) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY’S AND THE TRUSTEE’S, OR REGISTRAR’S, AS APPLICABLE, RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (C) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE FOREGOING CASES, A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE OR REGISTRAR. THIS LEGEND WILL BE REMOVED UPON THE WRITTEN REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE. IN THE CASE OF REGULATION S GLOBAL NOTES: BY ITS ACQUISITION HEREOF, THE HOLDER HEREOF REPRESENTS THAT IT IS NOT A U.S. PERSON NOR IS IT PURCHASING FOR THE ACCOUNT OF A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT.
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“IN THE CASE OF REGULATION S TEMPORARY GLOBAL NOTES: THIS GLOBAL NOTE IS A TEMPORARY GLOBAL NOTE FOR PURPOSES OF REGULATION S UNDER THE SECURITIES ACT. NEITHER THIS TEMPORARY GLOBAL NOTE NOR ANY INTEREST HEREIN MAY BE OFFERED, SOLD OR DELIVERED, EXCEPT AS PERMITTED UNDER THE INDENTURE REFERRED TO BELOW.”
SECTION 208 Transfer and Exchange.
(a) Notwithstanding any provision to the contrary herein, so long as a Global Note remains outstanding and is held by or on behalf of the Depositary, transfers of a Global Note, in whole or in part, shall be made only in accordance with Section 209 and this Section 208.
(b) Transfers of a Global Note shall be limited to transfers of such Global Note in whole, or in part, to nominees of the Depositary or to a successor of the Depositary or such successor’s nominee.
(c) If Notes are issued upon the transfer, exchange or replacement of Notes subject to restrictions on transfer and bearing a Legend, or if a request is made to remove the Legend on a Note, the Notes so issued shall bear the Legend, or the Legend shall not be removed, as the case may be, unless there is delivered to the Company and the Registrar such satisfactory evidence, which shall include an opinion of counsel, as may be reasonably required by the Company and the Registrar, that neither the Legend nor the restrictions on transfer set forth therein are required to ensure that transfers thereof comply with the provisions of Rule 144A, Rule 144 or Regulation S under the Securities Act, that such Notes are not “restricted” within the meaning of Rule 144 under the Securities Act or that any such exchange or replacement Notes have been issued in a registered transaction under the Securities Act. Upon (i) provision of such satisfactory evidence, or (ii) notification by the Company to the Trustee and the Registrar of the sale or exchange of such Notes pursuant to a registration statement that is effective at the time of such sale, the Trustee, at the written direction of the Company, shall authenticate and deliver a Note that does not bear the Legend. If the Legend is removed from the face of a Note and the Note is subsequently held by an Affiliate of the Company, the Legend shall be reinstated.
The Trustee and the Registrar shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Supplemental Indenture or under applicable law with respect to any transfer of any interest in any Note (including transfers between or among the Depositary’s participants or beneficial owners of interest in any Global Note) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Supplemental Indenture and to examine the same to determine substantial compliance as to form with the express requirements hereof.
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SECTION 209 Global Notes.
(a) Notwithstanding any other provisions of this Supplemental Indenture or the Notes, (A) transfers of a Global Note, in whole or in part, shall be made only in accordance with Section 2.07 of the Indenture and Sections 208 and 209(a)(i) below, (B) transfer of a beneficial interest in a Global Note for a Certificated Note shall comply with Section 2.07 of the Indenture and Section 209(a)(ii) below, (C) transfers of a beneficial interest in a Regulation S Global Note for a beneficial interest in a U.S. Global Note shall comply with Section 2.07 of the Indenture and Section 209(a)(iii) below, and (D) transfers of a Certificated Note shall comply with Section 2.07 of the Indenture and Sections 209(a)(iv) and (v) below.
(i) Transfer of Global Note. A Global Note may not be transferred, in whole or in part, to any Person other than the Depositary or a nominee thereof, and no such transfer to any such other Person may be registered; provided that this clause (i) shall not prohibit any transfer of a Note that is issued in exchange for a Global Note but is not itself a Global Note. No transfer of a Note to any Person shall be effective under the Indenture or the Notes unless and until such Note has been registered in the name of such Person. Nothing in this Section 209(a)(i) shall prohibit or render ineffective any transfer of a beneficial interest in a Global Note effected in accordance with the other provisions of this Section 209(a).
(ii) Restrictions on Transfer of a Beneficial Interest in a Global Note for a Certificated Note. A beneficial interest in a Global Note may not be exchanged for a Certificated Note except upon satisfaction of the requirements set forth below. Upon receipt by the Trustee of a request for transfer of a beneficial interest in a Global Note in accordance with Applicable Procedures for a Certificated Note in the form satisfactory to the Trustee, together with:
(a) so long as the Notes are Restricted Notes, certification, in the form set forth in Exhibit B-1 attached hereto, and, if requested by the Company or the Registrar, certification in the form set forth in Exhibit B-2 attached hereto, that such beneficial interest in the Global Note is being transferred to an Institutional Accredited Investor;
(b) written instructions to the Trustee to make, or direct the Registrar to make, an adjustment on its books and records with respect to such Global Note to reflect a decrease in the aggregate principal amount of the Notes represented by the Global Note, such instructions to contain information regarding the Depositary account to be credited with such decrease; and
(c) if the Company or Registrar so requests, an opinion of counsel or other evidence reasonably satisfactory to them as to compliance with the restrictions set forth in the applicable Legend,
then the Trustee shall cause, or direct the Registrar to cause, in accordance with the standing instructions and procedures existing between the Depositary and the Registrar, the aggregate principal amount of Notes represented by the Global Note to be decreased by the aggregate principal amount of the Certificated Note to be issued, shall issue such Certificated Note and shall debit or cause to be debited to the account of the Person specified in such instructions a beneficial interest in the Global Note equal to the principal amount of the Certificated Note so issued.
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(iii) Restrictions on Transfer of Beneficial Interest in a Regulation S Global Note for a Beneficial Interest in a U.S. Global Note.
(a) On or prior to the expiration of the Distribution Compliance Period, a beneficial interest in a Regulation S Global Note may be transferred to a Person who takes delivery in the form of an interest in the corresponding U.S. Global Note only upon receipt by the Trustee of a written certification from the transferor to the effect that such transfer is being made (i)(a) to a Person whom the transferor reasonably believes is a Qualified Institutional Buyer in a transaction meeting the requirements of Rule 144A or (b) pursuant to another exemption from the registration requirements under the Securities Act which is accompanied by an Opinion of Counsel regarding the availability of such exemption and (ii) in accordance with all applicable securities 1aws of any state of the United States or any other jurisdiction.
(b) Beneficial interests in the U.S. Global Note may be transferred to a Person who takes delivery in the form of an interest in the Regulation S Global Note, whether before or after the expiration of the Distribution Compliance Period, only if the transferor first delivers to the Trustee a written certificate to the effect that such transfer is being made in accordance with Rule 904 of Regulation S or Rule 144 (if available).
(iv) Transfer and Exchange of Certificated Notes. When Certificated Notes are presented to the Registrar with a request:
(x) to register the transfer of such Certificated Notes; or
(y) to exchange such Certificated Notes for an equal principal amount of Certificated Notes of other authorized denominations,
the Registrar shall register the transfer or make the exchange as requested if its reasonable requirements for such transaction are met; provided, however, that the Certificated Notes surrendered for transfer or exchange:
(a) shall be duly endorsed or accompanied by a written instrument of transfer in form reasonably satisfactory to the Company and the Registrar, duly executed by the Holder thereof or his attorney duly authorized in writing; and
(b) so long as such Notes are Restricted Notes, such Notes are being transferred or exchanged pursuant to clause (A), (B) or (C) below, and are accompanied by the following additional information and documents, as applicable:
(A) if such Certificated Notes are being delivered to the Registrar by a Holder for registration in the name of such Holder, without transfer, a certification from such Holder to that effect; or
(B) if such Certificated Notes are being transferred to the Company, a certification to that effect; or
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(C) if such Certificated Notes are being transferred pursuant to an exemption from registration, (i) a certification to that effect (in the form set forth in Exhibit B-1 and B-2, if applicable) and (ii) if the Company or Registrar so requests, an opinion of counsel or other evidence reasonably satisfactory to them as to the compliance with the restrictions set forth in the Transfer Restriction Legend.
(v) Restrictions on Transfer of a Certificated Note for a Beneficial Interest in a Global Note. A Certificated Note may not be exchanged for a beneficial interest in a Global Note except upon satisfaction of the requirements set forth below.
Upon receipt by the Trustee of a Certificated Note, duly endorsed or accompanied by appropriate instruments of transfer, in form satisfactory to the Trustee, together with:
(a) so long as the Notes are Restricted Notes, certification, in the form set forth in Exhibit B-1, that such Certificated Note is being transferred to a Qualified Institutional Buyer in accordance with Rule 144A; and
(b) written instructions directing the Trustee to make, or to direct the Registrar to make, an adjustment on its books and records with respect to such Global Note to reflect an increase in the aggregate principal amount of the Notes represented by the Global Note, such instructions to contain information regarding the Depositary account to be credited with such increase,
then the Trustee shall cancel such Certificated Note and cause, or direct the Registrar to cause, in accordance with the standing instructions and procedures existing between the Depositary and the Registrar, the aggregate principal amount of Notes represented by the Global Note to be increased by the aggregate principal amount of the Certificated Note to be exchanged, and shall credit or cause to be credited to the account of the Person specified in such instructions a beneficial interest in the Global Note equal to the principal amount of the Certificated Note so cancelled. If no Global Notes are then outstanding, the Company shall issue and the Trustee shall authenticate, upon receipt of a Company Order, a new Global Note in the appropriate principal amount.
(b) Subject to the succeeding paragraph, every Note shall be subject to the restrictions on transfer provided in the applicable Legend including the delivery of an opinion of counsel, if so provided. Whenever any Restricted Note is presented or surrendered for registration of transfer or for exchange for a Note registered in a name other than that of the Holder, such Note must be accompanied by a certificate in substantially the form set forth in Exhibit B-1, dated the date of such surrender and signed by the Holder of such Note, as to compliance with such restrictions on transfer. The Registrar shall not be required to accept for such registration of transfer or exchange any Note not so accompanied by a properly completed certificate.
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(c) (i) The restrictions imposed by the Transfer Restriction Legend upon the transferability of any Restricted Note shall cease and terminate when such Note has been sold or exchanged pursuant to an effective registration statement under the Securities Act or may be transferred in compliance with Rule 144 under the Securities Act (or any successor provision thereto). Any Note as to which such restrictions on transfer shall have expired in accordance with their terms or shall have terminated may, upon a surrender of such Note for exchange to the Registrar in accordance with the provisions of this Section 209 (accompanied, in the event that such restrictions on transfer have terminated by reason of a transfer in compliance with Rule 144 or any successor provision, by an opinion of counsel having substantial experience in practice under the Securities Act and otherwise reasonably acceptable to the Company, addressed to the Company, the Trustee and the Registrar and in form acceptable to the Company, to the effect that the transfer of such Note has been made in compliance with Rule 144 or such successor provision), be exchanged for a new Note, of like tenor and aggregate principal amount, which shall not bear the Transfer Restriction Legend. The Company shall inform the Trustee of the effective date of any registration statement registering the Notes under the Securities Act. The Trustee shall not be liable for any action taken or omitted to be taken by it in good faith in accordance with the aforementioned opinion of counsel.
(d) As used in the preceding two paragraphs of this Section 209, the term “transfer” encompasses any sale, pledge, transfer, hypothecation or other disposition of any Note.
(e) The provisions of clauses (i), (ii), (iii), (iv), and (v) below shall apply only to Global Notes:
(i) Notwithstanding any other provisions of the Indenture or the Notes, except as provided in Section 209(a)(ii), a Global Note shall not be exchanged in whole or in part for a Note registered in the name of any Person other than the Depositary or one or more nominees thereof, provided that a Global Note may be exchanged for Certificated Notes registered in the names of any Person designated by the Depositary in the event that (i) the Depositary has notified the Company that it is unwilling or unable to continue as depositary for such Global Note or the Depositary has ceased to be a “clearing agency” registered under the Exchange Act, and a successor Depositary is not appointed by the Company within 90 days or (ii) an Event of Default has occurred and is continuing with respect to the Notes. Any Global Note exchanged pursuant to clause (i) above shall be so exchanged in whole and not in part, and any Global Note exchanged pursuant to clause (ii) above may be exchanged in whole or from time to time in part as directed by the Depositary. Prior to the issuance of Certificated Notes in exchange for any beneficial interests in a Regulation S Global Note, the holder of such beneficial interests shall, as a condition to such exchange, certify in a form satisfactory to the Company that such holder is a non-U.S. person (as that term is defined in Regulation S under the Securities Act) or a U.S. person who purchased such beneficial interest in a transaction that did not require registration under the Securities Act. In the event that Certificated Notes are issued in respect of beneficial interests in a Regulation S Global Note at any time prior to the end of the Distribution Compliance Period (other than in a transaction subject to Rule 144A), the Company shall as promptly as practicable, institute procedures, including appropriate certifications, reasonably designed to ensure that any transfer of such Certificated Notes prior to the end of the Distribution Compliance Period is made only in accordance with the provisions of Regulation S, pursuant to registration under the Securities Act or pursuant to an exemption from such registration.
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(ii) Notes issued in exchange for a Global Note or any portion thereof shall be issued in definitive, fully registered form, without interest coupons, shall have an aggregate principal amount equal to that of such Global Note or portion thereof to be so exchanged, shall be registered in such names and be in such authorized denominations as the Depositary shall designate and shall bear the applicable Legend. Any Global Note to be exchanged in whole shall be surrendered by the Depositary to the Trustee, as Registrar. With regard to any Global Note to be exchanged in part, either such Global Note shall be so surrendered for exchange or, if the Trustee is acting as custodian for the Depositary or its nominee with respect to such Global Note, the principal amount thereof shall be reduced, by an amount equal to the portion thereof to be so exchanged, by means of an appropriate adjustment made on the records of the Trustee. Upon any such surrender or adjustment, the Trustee shall authenticate and deliver the Note issuable on such exchange to or upon the order of the Depositary or an authorized representative thereof.
(iii) Subject to the provisions of clause (v) below, the registered Holder may grant proxies and otherwise authorize any Person, including Agent Members (as defined below) and Persons that may hold interests through Agent Members, to take any action which a Holder is entitled to take under the Indenture or the Notes.
(iv) In the event of the occurrence of any of the events specified in clause (i) above, the Company will promptly make available to the Trustee a reasonable supply of Certificated Notes.
(v) Neither any members of, or participants in, the Depositary (collectively, the “Agent Members”) nor any other Persons on whose behalf Agent Members may act shall have any rights under the Indenture with respect to any Global Note registered in the name of the Depositary or any nominee thereof, or under any such Global Note, and the Depositary or such nominee, as the case may be, may be treated by the Company, the Trustee and any agent of the Company or the Trustee as the absolute owner and holder of such Global Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee or any agent of the Company or the Trustee from giving effect to any written certification, proxy or other authorization furnished by the Depositary or such nominee, as the case may be, or impair, as between the Depositary, its Agent Members and any other Person on whose behalf an Agent Member may act, the operation of customary practices of such Persons governing the exercise of the rights of a Holder of any Note.
SECTION 210 Events of Default. For purposes of this Fourteenth Supplemental Indenture and the Notes issued hereunder, Section 6.01 of the Original Indenture is hereby amended by deleting the clause immediately following subsection (i) in the first sentence of such Section and inserting in its place the following:
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“then and in each and every case that an Event of Default described in clause (a), (b), (c), (d), (e), (f), (g) (with respect to Restricted Subsidiaries only), (h) (with respect to Restricted Subsidiaries only) or (i) with respect to Debt Securities of that series at the time outstanding occurs and is continuing, unless the principal of and interest on all the Debt Securities of that series shall have already become due and payable, either the Trustee or the Holders of not less than 25% in aggregate principal amount of the Debt Securities of that series then outstanding hereunder, by notice in writing to the Company (and to the Trustee if given by Holders), may declare the principal of (or, if the Debt Securities of that series are Original Issue Discount Debt Securities, such portion of the principal amount as may be specified in the terms of that series) and interest on all the Debt Securities of that series to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything in this Indenture or in the Debt Securities or Coupons appertaining thereto of that series contained to the contrary notwithstanding.”
ARTICLE 3
REPORTS BY THE COMPANY
So long as any of the Debt Securities are “restricted securities” within the meaning of Rule 144(a)(3) under the Securities Act, the Company will, during any period in which it is not subject to Sections 13 or 15(d) of the Exchange Act or it is not exempt from such reporting requirements pursuant to and in compliance with Rule 12g3-2(b) under the Exchange Act, provide to each Holder of Notes and to each prospective purchaser (as designated by such Holder) of Notes, upon the request of such Holder or prospective purchaser, any information required to be provided by Rule 144A(d)(4) under the Securities Act.
ARTICLE 4
MISCELLANEOUS PROVISIONS
The Trustee makes no undertaking or representations in respect of, and shall not be responsible in any manner whatsoever for and in respect of, the validity or sufficiency of this Supplemental Indenture or the proper authorization or the due execution hereof by the Company or for or in respect of the recitals and statements contained herein, all of which recitals and statements are made solely by the Company.
For purposes of this Supplemental Indenture and the Notes, Section 7.02 of the Original Indenture is hereby amended to include the following additional rights of the Trustee:
“(i) in no event shall the Trustee be responsible or liable for special, indirect, or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action;
(j) in no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances;
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(k) the Trustee shall not be deemed to have notice of any Default or Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee at the designated corporate trust office of the Trustee, and such notice references the Notes and this Indenture;
(l) the rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder; and
(m) the Trustee may request that the Company deliver a certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture.”
This Supplemental Indenture shall be governed by, and construed in accordance with, the laws of the State of New York.
This Supplemental Indenture may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.
EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS SUPPLEMENTAL INDENTURE, THE NOTES OR THE TRANSACTION CONTEMPLATED HEREBY.
In order to comply with applicable tax laws (inclusive of rules, regulations and interpretations promulgated by competent authorities) related to the Indenture in effect from time to time (collectively, “Applicable Tax Law”) that a foreign financial institution, issuer, trustee, paying agent or other party is or has agreed to be subject to, the Company agrees (i) upon reasonable written request of the Trustee, to use commercially reasonable efforts to provide to the Trustee, to the extent available, sufficient information about the parties and/or transactions (including any modification to the terms of such transactions) so that the Trustee can determine whether it has tax related obligations under Applicable Tax Law and (ii) that the Trustee shall be entitled to make any withholding or deduction in respect of taxes from payments under the Indenture to the extent necessary to comply with Applicable Tax Law for which the Trustee shall not have any liability. Nothing in the immediately preceding sentence shall be construed as obligating the Company to make any “gross up” payment or similar reimbursement in connection with a payment in respect of which amounts are so withheld or deducted. The terms of this paragraph shall survive the satisfaction and discharge of the Indenture.
[SIGNATURE PAGES FOLLOW]
17
IN WITNESS WHEREOF, the Parties have executed this Fourteenth Supplemental Indenture by their duly authorized signatories as of the date first above written.
| COX COMMUNICATIONS, INC. | |||
| By: | /s/ Mark F. Bowser | ||
| Name: | Mark F. Bowser | ||
| Title: | Executive Vice President and Chief Financial Officer | ||
| By: | /s/ Charles L. Odom | ||
| Name: | Charles L. Odom | ||
| Title: | Vice President and Treasurer | ||
[Signature Page to Supplemental Indenture]
| THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee | |||
| By: | /s/ Teresa Petta | ||
| Name: | Teresa Petta | ||
| Title: | Vice President | ||
[Signature Page to Supplemental Indenture]
EXHIBIT A-l(i)
[FORM OF FACE
OF SECURITY]
[TRANSFER RESTRICTION LEGEND]
[THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS A NON-U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH THE LAWS APPLICABLE TO SUCH PURCHASER IN THE JURlSDICTION IN WHICH SUCH PURCHASE IS MADE AND (2) AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) THAT IS ONE YEAR AFTER THE LATER OF THE ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH THE LAWS APPLICABLE TO IT IN THE JURISDICTION IN WHICH SUCH PURCHASE IS MADE, (D) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY’S AND THE TRUSTEE’S, OR REGISTRAR’S, AS APPLICABLE, RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (C) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE FOREGOING CASES, A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE OR REGISTRAR. THIS LEGEND WILL BE REMOVED UPON THE WRITTEN REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.]
A- 1
[GLOBAL NOTES LEGEND]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON 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.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS, IN WHOLE BUT NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN ARTICLE TWO OF THE FOURTEENTH SUPPLEMENTAL INDENTURE REFERRED TO ON THE REVERSE HEREOF.]
| No. R- | PRINCIPAL AMOUNT | |
| CUSIP No. 224044 CE5 | $ |
COX COMMUNICATIONS, INC.
3.85% Notes due 2025
COX COMMUNICATIONS, INC., a Delaware corporation (hereinafter called the “Company,” which term includes any successor corporation under the Indenture referred to below), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of [ ] ($ ) on February 1, 2025 (the “Maturity Date”), unless previously redeemed, and to pay interest thereon from December 8, 2014 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, payable semiannually on February 1 and August 1 of each year (each, an “Interest Payment Date”), commencing August 1, 2015, at the rate of 3.85% per annum, until the principal hereof is paid or duly made available for payment. Interest shall be computed on the basis of a 360-day year of twelve 30-day months. The interest so payable and punctually paid or duly provided for on any Interest Payment Date will, as provided in the Indenture, be paid to the Person in whose name this Note (or one or more predecessor securities) is registered at the close of business on the regular record date for such interest, which shall be January 15 or July 15 (whether or not a Business Day), as the case may be, immediately preceding such Interest Payment Date. Any such interest which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date shall forthwith cease to be payable to the registered Holder hereof on the relevant regular record date by virtue of having been such Holder, and may be paid to the Person in whose name this Note (or one or more predecessor securities) is registered at the close of business on a subsequent special record date (which shall be not more than 15 days and not less than 10 days before the payment date) for the payment of such defaulted interest to be fixed by the Trustee, notice whereof shall be given to the Holders of Notes of this series not less than 10 days prior to such special record date, or may be paid at any time in any other lawful manner, all as more fully provided in such Indenture. If any Interest Payment Date, Redemption Date or the Maturity Date falls on a day that is not a Business Day, the required payment shall be made on the next Business Day as if it were made on the date such payment was due and no interest shall accrue on the amount so payable for the period from and after such Interest Payment Date, Redemption Date or the Maturity Date, as the case may be, to such next Business Day. Payments of principal, premium, if any, and interest hereunder shall be made in such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts and shall be made immediately available to the Holder (as defined below) hereof.
This Note is one of the duly authorized series of Debt Securities of the Company, designated as the Company’s “3.85% Notes due 2025” (the “Notes”), initially limited to an aggregate principal amount of $700,000,000, all issued or to be issued under and pursuant to an Indenture dated as of June 27, 1995 (the “Original Indenture”), as supplemented by the Fourteenth Supplemental Indenture dated as of December 8, 2014 (the “Fourteenth Supplemental Indenture” and, together with the Original Indenture, the “Indenture”), duly executed and delivered by the Company to The Bank of New York Mellon Trust Company, N.A, as trustee (hereinafter referred to as the “Trustee”), to which Indenture and all indentures supplemental thereto reference is hereby made for a description of the rights, limitation of rights, obligations, duties and immunities thereunder of the Trustee, the Company and the Holders (the words “Holders” or “Holder” meaning the registered holders or registered holder of the Notes).
Prior to November 1, 2024, this Note will be redeemable at the option of the Company, in whole at any time or in part from time to time, at a Redemption Price equal to the greater of (i) 100% of the principal amount of this Note to be redeemed and (ii) the sum, as determined by the Quotation Agent, of the present values of the principal amount of this Note to be redeemed and the remaining scheduled payments of interest on the principal amount of this Note to be redeemed (exclusive of interest accrued to the Redemption Date), in each case, discounted from their respective scheduled payment dates to the Redemption Date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as defined below) plus 25 basis points, plus accrued and unpaid interest thereon to, but not including, the Redemption Date. On or after November 1, 2024, this Note will be redeemable at the option of the Company, in whole at any time or in part from time to time, at a Redemption Price equal to 100% of the principal amount of this Note being redeemed, plus accrued and unpaid interest thereon to, but not including, the Redemption Date.
“Comparable Treasury Issue” means, with respect to this Note subject to redemption, the United States Treasury security selected by the Quotation Agent as having an actual or interpolated maturity comparable to the remaining life of this Note to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity with the remaining life of this Note to be redeemed.
“Comparable Treasury Price” means, with respect to any Redemption Date, the average of six Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and lowest of such Reference Treasury Dealer Quotations, or, if the Quotation Agent obtains fewer than five such Reference Treasury Dealer Quotations, the average of all such quotations.
“Quotation Agent” means the Reference Treasury Dealer appointed by the Company.
“Reference Treasury Dealer” means Barclays Capital Inc., Citigroup Global Markets Inc., Morgan Stanley & Co. LLC, J.P. Morgan Securities LLC, Mizuho Securities USA Inc. and Wells Fargo Securities, LLC, and each of their respective successors; provided, however, that if any of the foregoing shall cease to be a U.S. government securities dealer in the United States (a “Primary Treasury Dealer”), the Company will substitute another Primary Treasury Dealer.
“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and any Redemption Date, the average, as determined by the Quotation Agent, of the bid and asked prices for the Comparable Treasury Issue, expressed in each case as a percentage of its principal amount, quoted in writing to the Quotation Agent by such Reference Treasury Dealer at 3:30 p.m., New York City time, on the third Business Day preceding such Redemption Date.
“Treasury Rate” means, with respect to any Redemption Date, the rate per annum equal to the semi-annual or equivalent yield to maturity or interpolated (on a day-count basis) of the Comparable Treasury Issue, calculated on the third Business Day preceding such Redemption Date using a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such Redemption Date.
This Note is not subject to any sinking fund.
Notice of any redemption will be mailed at least 30 days but not more than 60 days before the Redemption Date to the Holder hereof at its registered address.
If money sufficient to pay the Redemption Price and accrued and unpaid interest on the principal amount of this Note to be redeemed on the Redemption Date is deposited with the Trustee or Paying Agent on or before the Redemption Date and certain other conditions specified in the Indenture are satisfied, then on or after such date, interest will cease to accrue on the principal amount of this Note called for redemption.
Except as provided above, this Note is not redeemable by the Company prior to maturity.
In case an Event of Default shall occur and be continuing, the principal hereof may be declared, and upon such declaration shall become, due and payable, in the manner, with the effect and subject to the conditions provided in the Indenture.
Subject to certain exceptions set forth in the Indenture, (i) the Indenture may be amended with respect to the Notes with the consent of the Holders of at least a majority in principal amount outstanding of the, Notes and (ii) any default or noncompliance with any provisions applicable to the Notes may be waived with the consent of the Holders of a majority in principal amount outstanding of the Notes. Subject to certain exceptions set forth in the Indenture, without the consent of any Holder, the Company and the Trustee may amend the Indenture or the Notes to, among other things, cure any ambiguity, defect or inconsistency, or to provide for the assumption by a successor person of the obligations of the Company under the Indenture, or to add additional covenants or surrender any right or power conferred on the Company, or to establish the form or terms of the Notes of any series, or to appoint a successor Trustee or provide for administration of the trust by more than one Trustee, or to add to, delete from or revise the conditions, limitations, and restrictions on the authorized amount, terms or purposes of issue, authentication and delivery of the Notes or to add any additional event of default, or to modify the provisions of the Indenture as shall be necessary to facilitate the defeasance and discharge of the Notes as shall not adversely affect any Holders, or to secure the Notes, or to make provisions with respect to exchange rights of Holders, or to make any change that does not adversely affect the rights of any Holder.
Subject to certain conditions, the Company at any time may terminate some or all of its obligations under the Notes and the Indenture if the Company deposits with the Trustee money or U.S. Government Obligations for the payment of principal, premium, if any, and interest on the Notes to the Maturity Date.
If money for the payment of principal or interest remains unclaimed for two years, the Trustee or Paying Agent shall pay the money back to the Company at its request unless an abandoned property law designates another Person. After any such payment, Holders entitled to the money must look only to the Company and not to the Trustee for payment.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and premium, if any, and interest on this ‘Note at the place, at the respective times, at the rate, and in the coin or currency herein prescribed.
No director, officer, employee or stockholder, as such, of the Company shall have any liability for any obligations of the Company under this Note or the Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. Each Holder, by accepting this Note, waives and releases all such liability. The waiver and release are part of the consideration for the issue of this Note.
This Note and the Indenture shall be governed by and construed in accordance with the law of the State of New York applicable to agreements made or instruments entered into and, in each case, performed in said state.
Ownership of this Note shall be proved by the register for the Notes kept by the Registrar. The Company, the Trustee and any agent of the Company may treat the Person in whose name a Note is registered as the absolute owner thereof for all purposes.
Pursuant to a recommendation promulgated by the Committee on Uniform Securities Identification Procedures (“CUSIP”), the Company has caused a CUSIP number to be printed on this Note and has directed the Trustee to use the CUSIP number as a convenience to Holders. No representation is made as to the correctness of such numbers and reliance may be placed only on the other identification numbers printed on this Note.
Terms used herein without definition that are defined in the Indenture shall have the meanings assigned to them in the Indenture.
Unless the Certificate of Authentication hereon has been executed by the Trustee under the Indenture referred to herein by the manual signature of one of its authorized officers, or on behalf of the Trustee by the manual signature of an authorized officer of the Trustee’s authenticating agent, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed, manually or by facsimile.
Date: December 8, 2014
| COX COMMUNICATIONS, INC. | |||
| By: | |||
| Name: | |||
| Title: | |||
| By: | |||
| Name: | |||
| Title: | |||
CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated therein referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A. as Trustee |
|||
| By: | |||
| Authorized Signatory | |||
| Dated: | December 8, 2014 | ||
ASSIGNMENT FORM
| FOR VALUE RECEIVED, the undersigned hereby sell(s) assign(s) and transfer(s) unto | |
| Please insert social security number 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 attorney to transfer said Note of Cox Communications, Inc. on the books of Cox Communications, Inc. 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 this Note in every particular without alteration or enlargement or any change whatsoever. The Signature must be guaranteed by an “eligible guarantor institution meeting the requirements of the Registrar, which requirements include memberships or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934.
EXHIBIT A-l(ii)
[FORM OF FACE
OF SECURITY]
[TRANSFER RESTRICTION LEGEND]
[THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS A NON-U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH THE LAWS APPLICABLE TO SUCH PURCHASER IN THE JURlSDICTION IN WHICH SUCH PURCHASE IS MADE AND (2) AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) THAT IS ONE YEAR AFTER THE LATER OF THE ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH THE LAWS APPLICABLE TO IT IN THE JURISDICTION IN WHICH SUCH PURCHASE IS MADE, (D) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY’S AND THE TRUSTEE’S, OR REGISTRAR’S, AS APPLICABLE, RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (C) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE FOREGOING CASES, A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE OR REGISTRAR. THIS LEGEND WILL BE REMOVED UPON THE WRITTEN REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.]
[GLOBAL NOTES LEGEND]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON 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.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS, IN WHOLE BUT NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN ARTICLE TWO OF THE FOURTEENTH SUPPLEMENTAL INDENTURE REFERRED TO ON THE REVERSE HEREOF.]
| No. R- | PRINCIPAL AMOUNT | |
| CUSIP No. 224044 CF2 | $ |
COX COMMUNICATIONS, INC.
4.80% Notes due 2035
COX COMMUNICATIONS, INC., a Delaware corporation (hereinafter called the “Company,” which term includes any successor corporation under the Indenture referred to below), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of [ ] ($ ) on February 1, 2035 (the “Maturity Date”), unless previously redeemed, and to pay interest thereon from December 8, 2014 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, payable semiannually on February 1 and August 1 of each year (each, an “Interest Payment Date”), commencing August 1, 2015, at the rate of 4.80% per annum, until the principal hereof is paid or duly made available for payment. Interest shall be computed on the basis of a 360-day year of twelve 30-day months. The interest so payable and punctually paid or duly provided for on any Interest Payment Date will, as provided in the Indenture, be paid to the Person in whose name this Note (or one or more predecessor securities) is registered at the close of business on the regular record date for such interest, which shall be January 15 or July 15 (whether or not a Business Day), as the case may be, immediately preceding such Interest Payment Date. Any such interest which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date shall forthwith cease to be payable to the registered Holder hereof on the relevant regular record date by virtue of having been such Holder, and may be paid to the Person in whose name this Note (or one or more predecessor securities) is registered at the close of business on a subsequent special record date (which shall be not more than 15 days and not less than 10 days before the payment date) for the payment of such defaulted interest to be fixed by the Trustee, notice whereof shall be given to the Holders of Notes of this series not less than 10 days prior to such special record date, or may be paid at any time in any other lawful manner, all as more fully provided in such Indenture. If any Interest Payment Date, Redemption Date or the Maturity Date falls on a day that is- not a Business Day, the required payment shall be made on the next Business Day as if it were made on the date such payment was due and no interest shall accrue on the amount so payable for the period from and after such Interest Payment Date, Redemption Date or the Maturity Date, as the case may be, to such next Business Day. Payments of principal, premium, if any, and interest hereunder shall be made in such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts and shall be made immediately available to the Holder (as defined below) hereof.
This Note is one of the duly authorized series of Debt Securities of the Company, designated as the Company’s “4.80% Notes due 2035” (the “Notes”), initially limited to an aggregate principal amount of $650,000,000, all issued or to be issued under and pursuant to an Indenture dated as of June 27, 1995 (the “Original Indenture”), as supplemented by the Fourteenth Supplemental Indenture dated as of December 8, 2014 (the “Fourteenth Supplemental Indenture” and, together with the Original Indenture, the “Indenture”), duly executed and delivered by the Company to The Bank of New York Mellon Trust Company, N.A, as trustee (hereinafter referred to as the “Trustee”), to which Indenture and all indentures supplemental thereto reference is hereby made for a description of the rights, limitation of rights, obligations, duties and immunities thereunder of the Trustee, the Company and the Holders (the words “Holders” or “Holder” meaning the registered holders or registered holder of the Notes).
Prior to August 1, 2034, this Note will be redeemable at the option of the Company, in whole at any time or in part from time to time, at a Redemption Price equal to the greater of (i) 100% of the principal amount of this Note to be redeemed and (ii) the sum, as determined by the Quotation Agent, of the present values of the principal amount of this Note to be redeemed and the remaining scheduled payments of interest on the principal amount of this Note to be redeemed (exclusive of interest accrued to the Redemption Date), in each case, discounted from their respective scheduled payment dates to the Redemption Date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as defined below) plus 30 basis points, plus accrued and unpaid interest thereon to, but not including, the Redemption Date. On or after August 1, 2034, this Note will be redeemable at the option of the Company, in whole at any time or in part from time to time, at a Redemption Price equal to 100% of the principal amount of this Note being redeemed, plus accrued and unpaid interest thereon to, but not including, the Redemption Date.
“Comparable Treasury Issue” means, with respect to this Note subject to redemption, the United States Treasury security selected by the Quotation Agent as having an actual or interpolated maturity comparable to the remaining life of this Note to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity with the remaining life of this Note to be redeemed.
“Comparable Treasury Price” means, with respect to any Redemption Date, the average of six Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and lowest of such Reference Treasury Dealer Quotations, or, if the Quotation Agent obtains fewer than five such Reference Treasury Dealer Quotations, the average of all such quotations.
“Quotation Agent” means the Reference Treasury Dealer appointed by the Company.
“Reference Treasury Dealer” means Barclays Capital Inc., Citigroup Global Markets Inc., Morgan Stanley & Co. LLC, J.P. Morgan Securities LLC, Mizuho Securities USA Inc. and Wells Fargo Securities, LLC, and each of their respective successors; provided, however, that if any of the foregoing shall cease to be a U.S. government securities dealer in the United States (a “Primary Treasury Dealer”), the Company will substitute another Primary Treasury Dealer.
“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and any Redemption Date, the average, as determined by the Quotation Agent, of the bid and asked prices for the Comparable Treasury Issue, expressed in each case as a percentage of its principal amount, quoted in writing to the Quotation Agent by such Reference Treasury Dealer at 3:30 p.m., New York City time, on the third Business Day preceding such Redemption Date.
“Treasury Rate” means, with respect to any Redemption Date, the rate per annum equal to the semi-annual or equivalent yield to maturity or interpolated (on a day-count basis) of the Comparable Treasury Issue, calculated on the third Business Day preceding such Redemption Date using a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such Redemption Date.
This Note is not subject to any sinking fund.
Notice of any redemption will be mailed at least 30 days but not more than 60 days before the Redemption Date to the Holder hereof at its registered address.
If money sufficient to pay the Redemption Price and accrued and unpaid interest on the principal amount of this Note to be redeemed on the Redemption Date is deposited with the Trustee or Paying Agent on or before the Redemption Date and certain other conditions specified in the Indenture are satisfied, then on or after such date, interest will cease to accrue on the principal amount of this Note called for redemption.
Except as provided above, this Note is not redeemable by the Company prior to maturity.
In case an Event of Default shall occur and be continuing, the principal hereof may be declared, and upon such declaration shall become, due and payable, in the manner, with the effect and subject to the conditions provided in the Indenture.
Subject to certain exceptions set forth in the Indenture, (i) the Indenture may be amended with respect to the Notes with the consent of the Holders of at least a majority in principal amount outstanding of the Notes and (ii) any default or noncompliance with any provisions applicable to the Notes may be waived with the consent of the Holders of a majority in principal amount outstanding of the Notes. Subject to certain exceptions set forth in the Indenture, without the consent of any Holder, the Company and the Trustee may amend the Indenture or the Notes to, among other things, cure any ambiguity, defect or inconsistency, or to provide for the assumption by a successor person of the obligations of the Company under the Indenture, or to add additional covenants or surrender any right or power conferred on the Company, or to establish the form or terms of the Notes of any series, or to appoint a successor Trustee or provide for administration of the trust by more than one Trustee, or to add to, delete from or revise the conditions, limitations, and restrictions on the authorized amount, terms or purposes of issue, authentication and delivery of the Notes or to add any additional event of default, or to modify the provisions of the Indenture as shall be necessary to facilitate the defeasance and discharge of the Notes as shall not adversely affect any Holders, or to secure the Notes, or to make provisions with respect to exchange rights of Holders, or to make any change that does not adversely affect the rights of any Holder.
Subject to certain conditions, the Company at any time may terminate some or all of its obligations under the Notes and the Indenture if the Company deposits with the Trustee money or U.S. Government Obligations for the payment of principal, premium, if any, and interest on the Notes to the Maturity Date.
If money for the payment of principal or interest remains unclaimed for two years, the Trustee or Paying Agent shall pay the money back to the Company at its request unless an abandoned property law designates another Person. After any such payment, Holders entitled to the money must look only to the Company and not to the Trustee for payment.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and premium, if any, and interest on this Note at the place, at the respective times, at the rate, and in the coin or currency herein prescribed.
No director, officer, employee or stockholder, as such, of the Company shall have any liability for any obligations of the Company under this Note or the Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. Each Holder, by accepting this Note, waives and releases all such liability. The waiver and release are part of the consideration for the issue of this Note.
This Note and the Indenture shall be governed by and construed in accordance with the law of the State of New York applicable to agreements made or instruments entered into and, in each case, performed in said state.
Ownership of this Note shall be proved by the register for the Notes kept by the Registrar. The Company, the Trustee and any agent of the Company may treat the Person in whose name a Note is registered as the absolute owner thereof for all purposes.
Pursuant to a recommendation promulgated by the Committee on Uniform Securities Identification Procedures (“CUSIP”), the Company has caused a CUSIP number to be printed on this Note and has directed the Trustee to use the CUSIP number as a convenience to Holders. No representation is made as to the correctness of such numbers and reliance may be placed only on the other identification numbers printed on this Note.
Terms used herein without definition that are defined in the Indenture shall have the meanings assigned to them in the Indenture.
Unless the Certificate of Authentication hereon has been executed by the Trustee under the Indenture referred to herein by the manual signature of one of its authorized officers, or on behalf of the Trustee by the manual signature of an authorized officer of the Trustee’s authenticating agent, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed, manually or by facsimile.
Date: December 8, 2014
| COX COMMUNICATIONS, INC. | |||
| By: | |||
| Name: | |||
| Title: | |||
| By: | |||
| Name: | |||
| Title: | |||
CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated therein referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A. as Trustee |
|||
| By: | |||
| Authorized Signatory | |||
| Dated: | December 8, 2014 | ||
ASSIGNMENT FORM
| FOR VALUE RECEIVED, the undersigned hereby sell(s) assign(s) and transfer(s) unto | |
| Please insert social security number 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 attorney to transfer said Note of Cox Communications, Inc. on the books of Cox Communications, Inc. 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 this Note in every particular without alteration or enlargement or any change whatsoever. The Signature must be guaranteed by an “eligible guarantor institution meeting the requirements of the Registrar, which requirements include memberships or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934.
EXHIBIT A-2(i)
[FORM OF
FACE OF SECURITY]
[TRANSFER RESTRICTION LEGEND]
[THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS A NON-U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH THE LAWS APPLICABLE TO SUCH PURCHASER IN THE JURlSDICTION IN WHICH SUCH PURCHASE IS MADE AND (2) AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) THAT IS 40 DAYS AFTER THE LATER OF THE ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH THE LAWS APPLICABLE TO IT IN THE JURISDICTION IN WHICH SUCH PURCHASE IS MADE, (D) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY’S AND THE TRUSTEE’S, OR REGISTRAR’S, AS APPLICABLE, RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (C) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE FOREGOING CASES, A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE OR REGISTRAR. THIS LEGEND WILL BE REMOVED UPON THE WRITTEN REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE. BY ITS ACQUISITION HEREOF, THE HOLDER HEREOF REPRESENTS THAT IT IS NOT A U.S. PERSON NOR IS IT PURCHASING FOR THE ACCOUNT OF A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT.
THIS GLOBAL NOTE IS A TEMPORARY GLOBAL NOTE FOR PURPOSES OF REGULATION S UNDER THE SECURITIES ACT. NEITHER THIS TEMPORARY GLOBAL NOTE NOR ANY INTEREST HEREIN MAY BE OFFERED, SOLD OR DELIVERED, EXCEPT AS PERMITTED UNDER THE INDENTURE REFERRED TO BELOW.]
[GLOBAL NOTES LEGEND]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON 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.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS, IN WHOLE BUT NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN ARTICLE TWO OF THE FOURTEENTH SUPPLEMENTAL INDENTURE REFERRED TO ON THE REVERSE HEREOF.]
| No. R- | PRINCIPAL AMOUNT | |
| CUSIP No. U22018 AQ5 | $ |
COX COMMUNICATIONS, INC.
3.85% Notes due 2025
COX COMMUNICATIONS, INC., a Delaware corporation (hereinafter called the “Company,” which term includes any successor corporation under the Indenture referred to below), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of [ ] ($ ) on February 1, 2025 (the “Maturity Date”), unless previously redeemed, and to pay interest thereon from December 8, 2014 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, payable semiannually on February 1 and August 1 of each year (each, an “Interest Payment Date”), commencing August 1, 2015, at the rate of 3.85% per annum, until the principal hereof is paid or duly made available for payment. Interest shall be computed on the basis of a 360-day year of twelve 30-day months. The interest so payable and punctually paid or duly provided for on any Interest Payment Date will, as provided in the Indenture, be paid to the Person in whose name this Note (or one or more predecessor securities) is registered at the close of business on the regular record date for such interest, which shall be January 15 or July 15 (whether or not a Business Day), as the case may be, immediately preceding such Interest Payment Date. Any such interest which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date shall forthwith cease to be payable to the registered Holder hereof on the relevant regular record date by virtue of having been such Holder, and may be paid to the Person in whose name this Note (or one or more predecessor securities) is registered at the close of business on a subsequent special record date (which shall be not more than 15 days and not less than 10 days before the payment date) for the payment of such defaulted interest to be fixed by the Trustee, notice whereof shall be given to the Holders of Notes of this series not less than 10 days prior to such special record date, or may be paid at any time in any other lawful manner, all as more fully provided in such Indenture. If any Interest Payment Date, Redemption Date or the Maturity Date falls on a day that is not a Business Day, the required payment shall be made on the next Business Day as if it were made on the date such payment was due and no interest shall accrue on the amount so payable for the period from and after such Interest Payment Date, Redemption Date or the Maturity Date, as the case may be, to such next Business Day. Payments of principal, premium, if any, and interest hereunder shall be made in such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts and shall be made immediately available to the Holder (as defined below) hereof.
This Note is one of the duly authorized series of Debt Securities of the Company, designated as the Company’s “3.85% Notes due 2025” (the “Notes”), initially limited to an aggregate principal amount of $700,000,000, all issued or to be issued under and pursuant to an Indenture dated as of June 27, 1995 (the “Original Indenture”), as supplemented by the Fourteenth Supplemental Indenture dated as of December 8, 2014 (the “Fourteenth Supplemental Indenture” and, together with the Original Indenture, the “Indenture”), duly executed and delivered by the Company to The Bank of New York Mellon Trust Company, N.A, as trustee (hereinafter referred to as the “Trustee”), to which Indenture and all indentures supplemental thereto reference is hereby made for a description of the rights, limitation of rights, obligations, duties and immunities thereunder of the Trustee, the Company and the Holders (the words “Holders” or “Holder” meaning the registered holders or registered holder of the Notes).
Prior to November 1, 2024, this Note will be redeemable at the option of the Company, in whole at any time or in part from time to time, at a Redemption Price equal to the greater of (i) 100% of the principal amount of this Note to be redeemed and (ii) the sum, as determined by the Quotation Agent, of the present values of the principal amount of this Note to be redeemed and the remaining scheduled payments of interest on the principal amount of this Note to be redeemed (exclusive of interest accrued to the Redemption Date), in each case, discounted from their respective scheduled payment dates to the Redemption Date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as defined below) plus 25 basis points, plus accrued and unpaid interest thereon to, but not including, the Redemption Date. On or after November 1, 2024, this Note will be redeemable at the option of the Company, in whole at any time or in part from time to time, at a Redemption Price equal to 100% of the principal amount of this Note being redeemed, plus accrued and unpaid interest thereon to, but not including, the Redemption Date.
“Comparable Treasury Issue” means, with respect to this Note subject to redemption, the United States Treasury security selected by the Quotation Agent as having an actual or interpolated maturity comparable to the remaining life of this Note to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity with the remaining life of this Note to be redeemed.
“Comparable Treasury Price” means, with respect to any Redemption Date, the average of six Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and lowest of such Reference Treasury Dealer Quotations, or, if the Quotation Agent obtains fewer than five such Reference Treasury Dealer Quotations, the average of all such quotations.
“Quotation Agent” means the Reference Treasury Dealer appointed by the Company.
“Reference Treasury Dealer” means Barclays Capital Inc., Citigroup Global Markets Inc., Morgan Stanley & Co. LLC, J.P. Morgan Securities LLC, Mizuho Securities USA Inc. and Wells Fargo Securities, LLC, and each of their respective successors; provided, however, that if any of the foregoing shall cease to be a U.S. government securities dealer in the United States (a “Primary Treasury Dealer”), the Company will substitute another Primary Treasury Dealer.
“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and any Redemption Date, the average, as determined by the Quotation Agent, of the bid and asked prices for the Comparable Treasury Issue, expressed in each case as a percentage of its principal amount, quoted in writing to the Quotation Agent by such Reference Treasury Dealer at 3:30 p.m., New York City time, on the third Business Day preceding such Redemption Date.
“Treasury Rate” means, with respect to any Redemption Date, the rate per annum equal to the semi-annual or equivalent yield to maturity or interpolated (on a day-count basis) of the Comparable Treasury Issue, calculated on the third Business Day preceding such Redemption Date using a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such Redemption Date.
This Note is not subject to any sinking fund.
Notice of any redemption will be mailed at least 30 days but not more than 60 days before the Redemption Date to the Holder hereof at its registered address.
If money sufficient to pay the Redemption Price and accrued and unpaid interest on the principal amount of this Note to be redeemed on the Redemption Date is deposited with the Trustee or Paying Agent on or before the Redemption Date and certain other conditions specified in the Indenture are satisfied, then on or after such date, interest will cease to accrue on the principal amount of this Note called for redemption.
Except as provided above, this Note is not redeemable by the Company prior to maturity.
In case an Event of Default shall occur and be continuing, the principal hereof may be declared, and upon such declaration shall become, due and payable, in the manner, with the effect and subject to the conditions provided in the Indenture.
Subject to certain exceptions set forth in the Indenture, (i) the Indenture may be amended with respect to the Notes with the consent of the Holders of at least a majority in principal amount outstanding of the Notes and (ii) any default or noncompliance with any provisions applicable to the Notes may be waived with the consent of the Holders of a majority in principal amount outstanding of the Notes. Subject to certain exceptions set forth in the Indenture, without the consent of any Holder, the Company and the Trustee may amend the Indenture or the Notes to, among other things, cure any ambiguity, defect or inconsistency, or to provide for the assumption by a successor person of the obligations of the Company under the Indenture, or to add additional covenants or surrender any right or power conferred on the Company, or to establish the form or terms of the Notes of any series, or to appoint a successor Trustee or provide for administration of the trust by more than one Trustee, or to add to, delete from or revise the conditions, limitations, and restrictions on the authorized amount, terms or purposes of issue, authentication and delivery of the Notes or to add any additional event of default, or to modify the provisions of the Indenture as shall be necessary to facilitate the defeasance and discharge of the Notes as shall not adversely affect any Holders, or to secure the Notes, or to make provisions with respect to exchange rights of Holders, or to make any change that does not adversely affect the rights of any Holder.
Subject to certain conditions, the Company at any time may terminate some or all of its obligations under the Notes and the Indenture if the Company deposits with the Trustee money or U.S. Government Obligations for the payment of principal, premium, if any, and interest on the Notes to the Maturity Date.
If money for the payment of principal or interest remains unclaimed for two years, the Trustee or Paying Agent shall pay the money back to the Company at its request unless an abandoned property law designates another Person. After any such payment, Holders entitled to the money must look only to the Company and not to the Trustee for payment.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and premium, if any, and interest on this Note at the place, at the respective times, at the rate, and in the coin or currency herein prescribed.
No director, officer, employee or stockholder, as such, of the Company shall have any liability for any obligations of the Company under this Note or the Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. Each Holder, by accepting this Note, waives and releases all such liability. The waiver and release are part of the consideration for the issue of this Note.
This Note and the Indenture shall be governed by and construed in accordance with the law of the State of New York applicable to agreements made or instruments entered into and, in each case, performed in said state.
Ownership of this Note shall be proved by the register for the Notes kept by the Registrar. The Company, the Trustee and any agent of the Company may treat the Person in whose name a Note is registered as the absolute owner thereof for all purposes.
Pursuant to a recommendation promulgated by the Committee on Uniform Securities Identification Procedures (“CUSIP”), the Company has caused a CUSIP number to be printed on this Note and has directed the Trustee to use the CUSIP number as a convenience to Holders. No representation is made as to the correctness of such numbers and reliance may be placed only on the other identification numbers printed on this Note.
Terms used herein without definition that are defined in the Indenture shall have the meanings assigned to them in the Indenture.
Unless the Certificate of Authentication hereon has been executed by the Trustee under the Indenture referred to herein by the manual signature of one of its authorized officers, or on behalf of the Trustee by the manual signature of an authorized officer of the Trustee’s authenticating agent, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed, manually or by facsimile.
Date: December 8, 2014
| COX COMMUNICATIONS, INC. | ||
| By: | ||
| Name: | ||
| Title: | ||
| By: | ||
| Name: | ||
| Title: | ||
CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated therein referred to in the within-mentioned Indenture.
| THE
BANK OF NEW YORK MELLON TRUST COMPANY, N.A. as Trustee |
||
| By: | ||
| Authorized Signatory | ||
| Dated: December 8, 2014 | ||
ASSIGNMENT FORM
| FOR VALUE RECEIVED, the undersigned hereby sell(s) assign(s) and transfer(s) unto | |
| Please insert social security number 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 attorney to transfer said Note of Cox Communications, Inc. on the books of Cox Communications, Inc. 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 this Note in every particular without alteration or enlargement or any change whatsoever. The Signature must be guaranteed by an “eligible guarantor institution meeting the requirements of the Registrar, which requirements include memberships or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934.
EXHIBIT A-2(ii)
[FORM OF FACE OF SECURITY]
[TRANSFER RESTRICTION LEGEND]
[THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS A NON-U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH THE LAWS APPLICABLE TO SUCH PURCHASER IN THE JURISDICTION IN WHICH SUCH PURCHASE IS MADE AND (2) AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) THAT IS 40 DAYS AFTER THE LATER OF THE ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH THE LAWS APPLICABLE TO IT IN THE JURISDICTION IN WHICH SUCH PURCHASE IS MADE, (D) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY’S AND THE TRUSTEE’S, OR REGISTRAR’S, AS APPLICABLE, RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (C) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE FOREGOING CASES, A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE OR REGISTRAR. THIS LEGEND WILL BE REMOVED UPON THE WRITTEN REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE. BY ITS ACQUISITION HEREOF, THE HOLDER HEREOF REPRESENTS THAT IT IS NOT A U.S. PERSON NOR IS IT PURCHASING FOR THE ACCOUNT OF A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT.]
[THIS GLOBAL NOTE IS A TEMPORARY GLOBAL NOTE FOR PURPOSES OF REGULATION S UNDER THE SECURITIES ACT. NEITHER THIS TEMPORARY GLOBAL NOTE NOR ANY INTEREST HEREIN MAY BE OFFERED, SOLD OR DELIVERED, EXCEPT AS PERMITTED UNDER THE INDENTURE REFERRED TO BELOW.]
[GLOBAL NOTES LEGEND]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON 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.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS, IN WHOLE BUT NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN ARTICLE TWO OF THE FOURTEENTH SUPPLEMENTAL INDENTURE REFERRED TO ON THE REVERSE HEREOF.]
| No. R- | PRINCIPAL AMOUNT | |
| CUSIP No. U22018 AR3 | $ |
COX COMMUNICATIONS, INC.
4.80% Notes due 2035
COX COMMUNICATIONS, INC., a Delaware corporation (hereinafter called the “Company,” which term includes any successor corporation under the Indenture referred to below), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of [ ] ($ ) on February 1, 2035 (the “Maturity Date”), unless previously redeemed, and to pay interest thereon from December 8, 2014 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, payable semiannually on February 1 and August 1 of each year (each, an “Interest Payment Date”), commencing August 1, 2015, at the rate of 4.80% per annum, until the principal hereof is paid or duly made available for payment. Interest shall be computed on the basis of a 360-day year of twelve 30-day months. The interest so payable and punctually paid or duly provided for on any Interest Payment Date will, as provided in the Indenture, be paid to the Person in whose name this Note (or one or more predecessor securities) is registered at the close of business on the regular record date for such interest, which shall be January 15 or July 15 (whether or not a Business Day), as the case may be, immediately preceding such Interest Payment Date. Any such interest which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date shall forthwith cease to be payable to the registered Holder hereof on the relevant regular record date by virtue of having been such Holder, and may be paid to the Person in whose name this Note (or one or more predecessor securities) is registered at the close of business on a subsequent special record date (which shall be not more than 15 days and not less than 10 days before the payment date) for the payment of such defaulted interest to be fixed by the Trustee, notice whereof shall be given to the Holders of Notes of this series not less than 10 days prior to such special record date, or may be paid at any time in any other lawful manner, all as more fully provided in such Indenture. If any Interest Payment Date, Redemption Date or the Maturity Date falls on a day that is not a Business Day, the required payment shall be made on the next Business Day as if it were made on the date such payment was due and no interest shall accrue on the amount so payable for the period from and after such Interest Payment Date, Redemption Date or the Maturity Date, as the case may be, to such next Business Day. Payments of principal, premium, if any, and interest hereunder shall be made in such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts and shall be made immediately available to the Holder (as defined below) hereof.
This Note is one of the duly authorized series of Debt Securities of the Company, designated as the Company’s “4.80% Notes due 2035” (the “Notes”), initially limited to an aggregate principal amount of $650,000,000, all issued or to be issued under and pursuant to an Indenture dated as of June 27, 1995 (the “Original Indenture”), as supplemented by the Fourteenth Supplemental Indenture dated as of December 8, 2014 (the “Fourteenth Supplemental Indenture” and, together with the Original Indenture, the “Indenture”), duly executed and delivered by the Company to The Bank of New York Mellon Trust Company, N.A, as trustee (hereinafter referred to as the “Trustee”), to which Indenture and all indentures supplemental thereto reference is hereby made for a description of the rights, limitation of rights, obligations, duties and immunities thereunder of the Trustee, the Company and the Holders (the words “Holders” or “Holder” meaning the registered holders or registered holder of the Notes).
Prior to August 1, 2034, this Note will be redeemable at the option of the Company, in whole at any time or in part from time to time, at a Redemption Price equal to the greater of (i) 100% of the principal amount of this Note to be redeemed and (ii) the sum, as determined by the Quotation Agent, of the present values of the principal amount of this Note to be redeemed and the remaining scheduled payments of interest on the principal amount of this Note to be redeemed (exclusive of interest accrued to the Redemption Date), in each case, discounted from their respective scheduled payment dates to the Redemption Date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as defined below) plus 30 basis points, plus accrued and unpaid interest thereon to, but not including, the Redemption Date. On or after August 1, 2034, this Note will be redeemable at the option of the Company, in whole at any time or in part from time to time, at a Redemption Price equal to 100% of the principal amount of this Note being redeemed, plus accrued and unpaid interest thereon to, but not including, the Redemption Date.
“Comparable Treasury Issue” means, with respect to this Note subject to redemption, the United States Treasury security selected by the Quotation Agent as having an actual or interpolated maturity comparable to the remaining life of this Note to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity with the remaining life of this Note to be redeemed.
“Comparable Treasury Price” means, with respect to any Redemption Date, the average of six Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and lowest of such Reference Treasury Dealer Quotations, or, if the Quotation Agent obtains fewer than five such Reference Treasury Dealer Quotations, the average of all such quotations.
“Quotation Agent” means the Reference Treasury Dealer appointed by the Company.
“Reference Treasury Dealer” means Barclays Capital Inc., Citigroup Global Markets Inc., Morgan Stanley & Co. LLC, J.P. Morgan Securities LLC, Mizuho Securities USA Inc. and Wells Fargo Securities, LLC, and each of their respective successors; provided, however, that if any of the foregoing shall cease to be a U.S. government securities dealer in the United States (a “Primary Treasury Dealer”), the Company will substitute another Primary Treasury Dealer.
“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and any Redemption Date, the average, as determined by the Quotation Agent, of the bid and asked prices for the Comparable Treasury Issue, expressed in each case as a percentage of its principal amount, quoted in writing to the Quotation Agent by such Reference Treasury Dealer at 3:30 p.m., New York City time, on the third Business Day preceding such Redemption Date.
“Treasury Rate” means, with respect to any Redemption Date, the rate per annum equal to the semi-annual or equivalent yield to maturity or interpolated (on a day-count basis) of the Comparable Treasury Issue, calculated on the third Business Day preceding such Redemption Date using a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such Redemption Date.
This Note is not subject to any sinking fund.
Notice of any redemption will be mailed at least 30 days but not more than 60 days before the Redemption Date to the Holder hereof at its registered address.
If money sufficient to pay the Redemption Price and accrued and unpaid interest on the principal amount of this Note to be redeemed on the Redemption Date is deposited with the Trustee or Paying Agent on or before the Redemption Date and certain other conditions specified in the Indenture are satisfied, then on or after such date, interest will cease to accrue on the principal amount of this Note called for redemption.
Except as provided above, this Note is not redeemable by the Company prior to maturity.
In case an Event of Default shall occur and be continuing, the principal hereof may be declared, and upon such declaration shall become, due and payable, in the manner, with the effect and subject to the conditions provided in the Indenture.
Subject to certain exceptions set forth in the Indenture, (i) the Indenture may be amended with respect to the Notes with the consent of the Holders of at least a majority in principal amount outstanding of the Notes and (ii) any default or noncompliance with any provisions applicable to the Notes may be waived with the consent of the Holders of a majority in principal amount outstanding of the Notes. Subject to certain exceptions set forth in the Indenture, without the consent of any Holder, the Company and the Trustee may amend the Indenture or the Notes to, among other things, cure any ambiguity, defect or inconsistency, or to provide for the assumption by a successor person of the obligations of the Company under the Indenture, or to add additional covenants or surrender any right or power conferred on the Company, or to establish the form or terms of the Notes of any series, or to appoint a successor Trustee or provide for administration of the trust by more than one Trustee, or to add to, delete from or revise the conditions, limitations, and restrictions on the authorized amount, terms or purposes of issue, authentication and delivery of the Notes or to add any additional event of default, or to modify the provisions of the Indenture as shall be necessary to facilitate the defeasance and discharge of the Notes as shall not adversely affect any Holders, or to secure the Notes, or to make provisions with respect to exchange rights of Holders, or to make any change that does not adversely affect the rights of any Holder.
Subject to certain conditions, the Company at any time may terminate some or all of its obligations under the Notes and the Indenture if the Company deposits with the Trustee money or U.S. Government Obligations for the payment of principal, premium, if any, and interest on the Notes to the Maturity Date.
If money for the payment of principal or interest remains unclaimed for two years, the Trustee or Paying Agent shall pay the money back to the Company at its request unless an abandoned property law designates another Person. After any such payment, Holders entitled to the money must look only to the Company and not to the Trustee for payment.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and premium, if any, and interest on this Note at the place, at the respective times, at the rate, and in the coin or currency herein prescribed.
No director, officer, employee or stockholder, as such, of the Company shall have any liability for any obligations of the Company under this Note or the Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. Each Holder, by accepting this Note, waives and releases all such liability. The waiver and release are part of the consideration for the issue of this Note.
This Note and the Indenture shall be governed by and construed in accordance with the law of the State of New York applicable to agreements made or instruments entered into and, in each case, performed in said state.
Ownership of this Note shall be proved by the register for the Notes kept by the Registrar. The Company, the Trustee and any agent of the Company may treat the Person in whose name a Note is registered as the absolute owner thereof for all purposes.
Pursuant to a recommendation promulgated by the Committee on Uniform Securities Identification Procedures (“CUSIP”), the Company has caused a CUSIP number to be printed on this Note and has directed the Trustee to use the CUSIP number as a convenience to Holders. No representation is made as to the correctness of such numbers and reliance may be placed only on the other identification numbers printed on this Note.
Terms used herein without definition that are defined in the Indenture shall have the meanings assigned to them in the Indenture.
Unless the Certificate of Authentication hereon has been executed by the Trustee under the Indenture referred to herein by the manual signature of one of its authorized officers, or on behalf of the Trustee by the manual signature of an authorized officer of the Trustee’s authenticating agent, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed, manually or by facsimile.
Date: December 8, 2014
| COX COMMUNICATIONS, INC. | ||
| By: | ||
| Name: | ||
| Title: | ||
| By: | ||
| Name: | ||
| Title: | ||
CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated therein referred to in the within-mentioned Indenture.
| THE
BANK OF NEW YORK MELLON TRUST COMPANY, N.A. as Trustee |
||
| By: | ||
| Authorized Signatory | ||
| Dated: December 8, 2014 | ||
ASSIGNMENT FORM
| FOR VALUE RECEIVED, the undersigned hereby sell(s) assign(s) and transfer(s) unto | |
| Please insert social security number 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 attorney to transfer said Note of Cox Communications, Inc. on the books of Cox Communications, Inc. 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 this Note in every particular without alteration or enlargement or any change whatsoever. The Signature must be guaranteed by an “eligible guarantor institution meeting the requirements of the Registrar, which requirements include memberships or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934.
EXHIBIT B-1
Transfer Certificate
In connection with a transfer of any of the $ principal amount of the ____% Notes due 20___ (the “Notes”) of Cox Communications, Inc. (the “Company”) within the period prior to the expiration of the holding period applicable to the sales thereof under Rule 144 under the Securities Act of 1933, as amended (the “Securities Act”) (or any successor provision), the undersigned registered owner of this Note hereby certifies with respect to $_____________ principal amount of the above-captioned securities presented or surrendered on the date hereof (the “Surrendered Notes”) for registration of transfer, or for exchange where the securities deliverable upon such exchange are to be registered in a name other than that of the undersigned registered owner (each such transaction being a “transfer”), that such transfer complies with the restrictive legend set forth on the face of the Surrendered Notes for the reason checked below:
| ¨ | The transfer of the Surrendered Notes is made to the Company or any subsidiary thereof; | |
| ¨ | The transfer of the Surrendered Notes complies with Rule 144A under the Securities Act; | |
| ¨ | The transfer of the Surrendered Notes is pursuant to a registration statement which has been declared effective under the Securities Act; | |
| ¨ | The transfer of the Surrendered Notes is pursuant to an offer and sale to a non-U.S. person that occurs outside the United States within the meaning of Regulation S under the Securities Act and in accordance with the laws applicable to it in the jurisdiction in which such purchase is made; | |
| ¨ | The transfer of the Surrendered Notes is pursuant to another available exemption from the registration requirements of the Securities Act. |
and unless the box below is checked, the undersigned confirms that, to the undersigned’s knowledge, such Notes are not being transferred to an “affiliate” of the Company as defined in Rule 144 under the Securities Act (an “Affiliate”).
| ¨ | The transferee is an Affiliate of the Company. |
| DATE: | |||
| Signature(s) | |||
(If the registered owner is a corporation, partnership
or fiduciary, the title of the Person signing on behalf
of such registered owner must be stated.)
B-1-1
EXHIBIT B-2
Form of Letter to be Delivered by Accredited Investors
Cox Communications, Inc.
1400 Lake Hearn Drive, NE
Atlanta, Georgia 30319
Attention: Treasurer
The Bank of New York Mellon Trust Company, N.A., as Registrar
10161 Centurion Parkway N.
Jacksonville, Florida 32256
Attention: Corporate Trust Office
Dear Sirs:
We are delivering this letter in connection with the proposed transfer of $ principal amount of the % Notes due 20__ (the “Notes”) of Cox Communications, Inc. (the “Company”).
We hereby confirm that:
(i) we are an “accredited investor” within the meaning of Rule 501(a)(l), (2), (3) or (7) of Regulation D under the Securities Act of 1933, as amended (the “Securities Act”), or an entity in which all of the equity owners are accredited investors within the meaning of Rule 501(a)( l ), (2), (3) or (7) of Regulation D under the Securities Act (an “Institutional Accredited Investor”);
(ii) (A) the purchase of Notes by us is for our own account or for the account of one or more other Institutional Accredited Investors or as fiduciary for the account of one or more trusts, each of which is an “accredited investor” within the meaning of Rule 501(a)(7) under the Securities Act and for each of which we exercise sole investment discretion or (B) we are a “bank,” within the meaning of Section 3(a)(2) of the Securities Act, or a “savings and loan association” or other institution described in Section 3(a)(5)(A) of the Securities Act that is acquiring Notes as fiduciary for the account of one or more institutions for which we exercise sole investment discretion;
(iii) we will acquire Notes having a minimum principal amount of not less than $100,000 for our own account or for any separate account for which we are acting;
(iv) we have such knowledge and experience in financial and business matters that we are capable of evaluating the merits and risks of purchasing Notes; and
(v) we are not acquiring Notes with a view to distribution thereof or with any present intention of offering or selling Notes, except as permitted below; provided that the disposition of our property and property of any accounts for which we are acting as fiduciary shall remain at all times within our control.
B-2-1
We understand that the Notes were originally offered and sold in a transaction not involving any public offering within the United States within the meaning of the Securities Act and that the Notes have not been registered under the Securities Act, and we agree, on our own behalf and on behalf of each account for which we acquire any Notes, that we will offer, sell or otherwise transfer such Notes, or any beneficial interest therein, prior to the end of the period (the “Resale Restriction Period”) from the date of original issuance until (a) the date that is one year after the later of (x) the date of the original issuance of the Notes or (y) the last day on which the Issuer or any of its Affiliates was the owner of the Notes, and (b) such later date, if any, as may be required by applicable laws only:
(1) to the Company or any subsidiary thereof, or
(2) for as long as the Notes are eligible for resale pursuant to Rule 144A, to a person we reasonably believe is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) that purchases for its own account or for the account of a qualified institutional buyer to which notice is given that the transfer is being made in reliance on Rule 144A, or
(3) pursuant to offers and sales to non-U.S. persons that occur outside the United States within the meaning of Regulation S under the Securities Act and in accordance with the laws applicable to us in the jurisdiction in which such purchase is made, or
(4) pursuant to a registration statement which has been declared effective under the Securities Act, or
(5) pursuant to another available exemption from the registration requirements of the Securities Act.
We acknowledge that the Company, others and you will rely upon our confirmations, acknowledgments and agreements set forth herein, and we agree to notify you promptly in writing if any of our representations or warranties herein ceases to be accurate and complete.
B-2-2
THIS LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK.
| (Name of Purchaser) | ||
| By: | ||
| Name: | ||
| Title: | ||
| Address: | ||
B-2-3
Exhibit 4.13
EXECUTION VERSION
COX COMMUNICATIONS, INC.
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
as Trustee
FIFTEENTH SUPPLEMENTAL INDENTURE
Dated as of September 13, 2016
Supplement to Indenture
Dated as of June 27, 1995
Creating one series of Debt Securities designated
3.35% Notes due 2026
FIFTEENTH SUPPLEMENTAL INDENTURE, dated as of the 13th day of September, 2016, between COX COMMUNICATIONS, INC., a corporation existing under the laws of the State of Delaware, having its principal executive office located at 6205-B Peachtree Dunwoody Road, NE, Atlanta, Georgia 30328 (the "Company"), and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., a national banking association, having a designated corporate trust office located at 10161 Centurion Parkway N., Jacksonville, Florida 32256, as trustee (the "Trustee");
WHEREAS, the Company has heretofore executed and delivered to the Trustee an Indenture, dated as of June 27, 1995 (the "Original Indenture" and, as amended by this Supplemental Indenture, the "Indenture"), providing for the issuance by the Company from time to time of its debentures, notes, bonds or other evidences of indebtedness (in the Original Indenture and herein called the "Debt Securities"), unlimited as to principal amount, to be issued in one or more series;
WHEREAS, the Company, in the exercise of the power and authority conferred upon and reserved to it under the provisions of the Original Indenture and pursuant to appropriate resolutions of the Board of Directors, has duly determined to make, execute and deliver to the Trustee this Supplemental Indenture to the Original Indenture in order to establish the form and terms of, and to provide for the creation and issuance of, one new series of Debt Securities designated as the "3.35% Notes due 2026" in the initial aggregate principal amount of $1,000,000,000 (the "Notes");
WHEREAS, Section 9.01 of the Original Indenture provides, among other things, that the Company and the Trustee, at any time and from time to time, without the consent of any Holders, may enter into an indenture supplemental to the Original Indenture to establish the form or terms of Debt Securities of any series as permitted by Sections 2.01 and 2.03 of the Original Indenture;
WHEREAS, all things necessary to make the Notes, when executed by the Company and authenticated and delivered by the Trustee and issued upon the terms and subject to the conditions hereinafter and in the Original Indenture set forth against payment therefor, the valid, binding and legal obligations of the Company and to make this Supplemental Indenture a valid, binding and legal agreement of the Company, have been done;
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH that, in order to establish the form and terms of the series of Debt Securities designated as the "3.35% Notes due 2026" and for and in consideration of the premises and of the covenants contained in the Original Indenture and in this Supplemental Indenture and for other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of the Notes, as follows:
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ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101 Definitions. For all purposes of the Original Indenture and this Supplemental Indenture relating to the series of Debt Securities (consisting of the Notes) created hereby, except as otherwise expressly provided or unless the context otherwise requires, the terms defined in this Article have the meanings assigned to them in this Article. Each capitalized term that is used in the Original Indenture and this Supplemental Indenture but not defined herein shall have the meaning specified in the Original Indenture.
"Agent Members" has the meaning specified in Section 209(e)(v) of this Supplemental Indenture.
"Applicable Procedures" means, with respect to any transfer or transaction involving a Global Note or beneficial interest therein, the rules and procedures of the Depositary for such Note, in each case to the extent applicable to such transaction and as in effect from time to time.
"Below Investment Grade Downgrade Event" means the rating on the Notes is lowered in respect of a Change of Control and the Notes are rated below an Investment Grade Rating by each of the Rating Agencies on any date from the first public announcement by the Company of any Change of Control (or pending Change of Control) and ending 60 days following consummation of such Change of Control (which period shall be extended until the ratings are announced if, during such 60-day period, the rating of the Notes is under publicly announced consideration for possible downgrade by each of the Rating Agencies);provided that a Below Investment Grade Downgrade Event otherwise arising by virtue of a particular reduction in rating shall not be deemed to have occurred in respect of a particular Change of Control (and thus shall not be deemed a Below Investment Grade Downgrade Event for purposes of the definition of Change of Control Repurchase Event hereunder) if the Rating Agencies making the reduction in rating to which this definition would otherwise apply do not announce or publicly confirm or inform the Company in writing at its request that the reduction was the result, in whole or in part, of any event or circumstance comprised of or arising as a result of, or in respect of, the applicable Change of Control (whether or not the applicable Change of Control shall have occurred at the time of the Below Investment Grade Downgrade Event). The Company shall request the Rating Agencies to make such confirmation in connection with any Change of Control and shall promptly certify to the Trustee as to whether or not such confirmation has been received or denied.
"Business Day" means any day other than a Saturday, a Sunday or a legal holiday or a day on which banking institutions or trust companies in The City of New York are authorized or obligated by law to close.
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"Capital Stock" of any Person means any and all shares, interests, participations, rights in or other equivalents (however designated) of such Person's capital stock, other equity interests whether now outstanding or issued after the Issue Date, partnership interests (whether general or limited), limited liability company interests, any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person, including any preferred stock, and any rights (other than debt securities convertible into, or exchangeable for or valued by reference to, Capital Stock until and unless any such debt security is converted into Capital Stock), warrants or options exchangeable for or convertible into such Capital Stock.
"cash" means U.S. legal tender.
"Certificated Notes" means the Notes issued in certificated, registered form without interest coupons and not required to bear the Legend set forth in Section 207(a)(ii) of this Supplemental Indenture.
"Change of Control" means the occurrence of any of the following events:
(1) any "person" or "group" (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act), other than one or more Permitted Holders, becomes the "beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that a Person shall be deemed to have beneficial ownership of all shares that such Person has the right to acquire, whether such right is exercisable immediately or only after the passage of time), directly or indirectly, of more than 50% of the total outstanding Voting Stock of the Company;
(2) the Company sells, assigns, conveys, transfers, leases or otherwise disposes of (other than by way of merger or consolidation) all or substantially all of its and its Subsidiaries' assets taken as a whole to any Person, other than any such transaction where:
| (A) | the transferee is a Person controlled, directly or indirectly, by one or more Permitted Holders; or |
| (B) | following such transaction, each transferee becomes an obligor in respect of the Notes and either (i) each transferee is or becomes a Subsidiary of the transferor of such assets or (ii) the holders of the Voting Stock of the Company immediately prior to such transaction own, directly or indirectly, not less than a majority of the Voting Stock of the transferee immediately after such transaction; |
(3) the Company consolidates with or merges with or into any Person or any Person consolidates with or merges into or with the Company, in any such event pursuant to a transaction in which the outstanding Voting Stock of the Company is converted into or exchanged for cash, securities or other property, other than any such transaction where:
| (A) | the surviving corporation is a Person controlled, directly or indirectly, by one or more Permitted Holders; or |
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| (B) | (i) the outstanding Voting Stock of the Company is changed into or exchanged for Voting Stock of the surviving corporation (or any direct or indirect parent company of the surviving corporation and
(ii) the holders of the Voting Stock of the Company immediately prior to such transaction own, directly or indirectly, not less than a majority of the Voting Stock of the surviving corporation immediately after such transaction; or |
(4) the adoption of a plan relating to the liquidation or dissolution of the Company.
Notwithstanding the foregoing, a transaction will not be deemed to involve a Change of Control if (i) Cox becomes a direct or indirect wholly owned subsidiary of a holding company and (ii) the direct or indirect holders of the Voting Stock of Cox immediately prior to such transaction own, directly or indirectly, at least a majority of the Voting Stock of such holding company.
"Change of Control Repurchase Event" means the occurrence of a Change of Control together with a Below Investment Grade Downgrade Event with respect to the Notes. Notwithstanding the foregoing, no Change of Control Repurchase Event will be deemed to have occurred in connection with any particular Change of Control unless and until such Change of Control has actually been consummated.
"Clearstream" means Clearstream Banking, société anonyme (formerly Cedelbank).
"Cox Descendants" means the lineal descendants of Governor James M. Cox.
"Cox Family Charities" means charitable organizations of which Cox Family Individuals constitute at least a majority of the trustees, members or directors thereof.
"Cox Family Individuals" means (a) the Cox Descendants and (b) the spouses and surviving spouses of Cox Descendants.
"Cox Family Members" means (a) Cox Family Individuals, (b) Cox Family Trusts, (c) Cox Family Charities or (d) corporations, partnerships, limited partnerships, limited liability companies or any other Person beneficially owned in whole or in part by one or more Cox Family Individuals or Cox Family Trusts or Cox Family Charities; provided that, with respect to clauses (b) and (d), in the case of a Cox Family Trust, a majority of the trustees are Cox Family Individuals, in the case of a general or limited partnership, Cox Family Individuals own, directly or indirectly, more than 50% of the interests or general partner interests, in the case of a limited liability company, Cox Family Individuals hold, directly or indirectly, more than 50% of the vote of the managers, and in the case of any other Person, one or more Cox Family Individuals is the "beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of more than 50% of the Voting Stock, measured by voting power rather than number of shares, of such Person.
"Cox Family Trusts" means trusts established by or for the benefit of any one or more Cox Family Individuals.
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"Debt Securities" has the meaning specified in the first recital hereof.
"Depositary" means, with respect to the Notes issuable in whole or in part in global form, DTC and any nominee thereof, until a successor shall have been appointed and become such pursuant to the applicable provisions of the Indenture, and thereafter "Depositary" shall mean or include such successor and any nominee thereof.
"Distribution Compliance Period" means the 40-day distribution compliance period as defined in Regulation S, or such later date, if any, as may be required by applicable laws.
"DTC" means The Depository Trust Company.
"Electronic Means" shall mean the following communications methods: S.W.I.F.T., e-mail, facsimile transmission, secure electronic transmission containing applicable authorization codes, passwords and/or authentication keys issued by the Trustee, or another method or system specified by the Trustee as available for use in connection with its services hereunder.
"Euroclear" means the Euroclear System.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Fitch" means Fitch Ratings, Inc. or any successor to the rating agency business thereof.
"Global Note" means a Note issued in global form, bearing the legends set forth in Section 207(a)(ii) of this Supplemental Indenture, and deposited with or on behalf of the Depositary.
"Holder" and "Noteholder," in the case of any Note, means the Person in whose name such Note is registered in the Debt Security Register.
"Institutional Accredited Investor" means an institutional "accredited investor" as defined in Rule 50l (a)(l), (2), (3) and (7) under the Securities Act.
"Interest Payment Date," in respect of any Note, has the meaning assigned to it in such Note.
"Investment Grade Rating" means (a) with respect to Moody's, a rating equal to or higher than Baa3 (or the equivalent), and (b) with respect to S&P and Fitch, a rating equal to or higher than BBB- (or the equivalent) (or, in each case, if such Rating Agency ceases to rate the Notes for reasons outside of the Company's control, the equivalent investment grade credit rating from any Rating Agency selected by the Company as a replacement Rating Agency).
"Issue Date" means September 13, 2016.
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"Legend" means the Transfer Restriction Legend as defined in Section 207(c) of this Supplemental Indenture.
"Moody's" means Moody's Investors Service, Inc. or any successor to the rating agency business thereof.
"Notes" has the meaning specified in the recitals hereof.
"Permitted Holders" means (a) the Cox Family Members, (b) Cox Enterprises, Inc. and its affiliates, including any successor Person to Cox Enterprises, Inc. that owns, directly or indirectly, 100% of the Capital Stock of the Company and such successor Person's affiliates, and (c) any "group" (as such term is used in Sections 13(d) and 14(d) of the Exchange Act) of the foregoing with respect to which any such Persons exercise a majority of voting power.
"Purchase Agreement" means the Purchase Agreement, dated September 8, 2016, among the Company and J.P. Morgan Securities LLC, Wells Fargo Securities, LLC and Mizuho Securities USA Inc., acting as representatives on behalf of the Initial Purchasers (as defined therein).
"Qualified Institutional Buyer" has the meaning specified in Rule 144A.
"Rating Agencies" means:
| (1) | S&P; |
| (2) | Moody's; and |
| (3) | Fitch; |
provided, that if S&P, Moody's or Fitch or all three shall not make a rating of the Notes publicly available, a "nationally recognized statistical rating organization" within the meaning of Section 3(a)(62) of the Exchange Act, selected by the Company, shall be substituted for S&P, Moody's or Fitch or all three, as the case may be.
"Redemption Date", with respect to any Note or portion thereof to be redeemed, means the date fixed for redemption in accordance with the terms of such Note and Article III of the Original Indenture.
"Redemption Price", with respect to any Note or portion thereof to be redeemed, means the price at which it is to be redeemed as determined in accordance with the terms of the applicable Note and Article III of the Original Indenture.
"Regulation S" means Regulation S under the Securities Act.
"Regulation S Global Note" means a Regulation S Temporary Global Note or Regulation S Permanent Global Note, as applicable.
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"Regulation S Permanent Global Note" means a permanent Global Note in the form of the Note attached hereto as Exhibit A-2, and that is deposited with and registered in the name of the Depositary, issued in a denomination equal to the outstanding principal amount of the Regulation S Temporary Global Note upon expiration of the Distribution Compliance Period.
"Regulation S Temporary Global Note" means a temporary Global Note in the form of the Note attached hereto as Exhibit A-2, and that is deposited with and registered in the name of the Depositary, representing Notes sold in offshore transactions in reliance on Regulation S.
"Resale Restriction Termination Date" means (1) in the case of U.S. Global Notes, the date that is one year after the later of (a) the Issue Date and (b) the last date on which the Company or any Affiliate of the Company was the owner of such Notes or, in the case of Regulation S Notes, the date that is 40 days after the later of (a) the Issue Date and (b) the last date on which the Company or any Affiliate of the Company was the owner of such Notes and (2) such later date, if any, as may be required by applicable laws.
"Restricted Note" means a Note required to bear the Transfer Restriction Legend pursuant to Section 207(c) of this Supplemental Indenture and set forth on the forms of Notes attached as Exhibit A-1 and Exhibit A-2 to this Supplemental Indenture.
"Rule 144A" means Rule 144A under the Securities Act (or any successor provision), as it may be amended from time to time.
"S&P" means S&P Global Ratings, a division of S&P Global, Inc., or any successor to the rating agency business thereof.
"Securities Act" means the Securities Act of 1933, as amended.
"Supplemental Indenture" means this Fifteenth Supplemental Indenture.
"Transfer Restriction Legend" has the meaning specified in Section 207(c) of this Supplemental Indenture.
"Trustee" has the meaning specified in the first paragraph hereof.
"U.S. Global Note" means a Global Note in the form of the Note attached hereto as Exhibit A-1 to this Supplemental Indenture, and that is deposited with and registered in the name of the Depositary, representing Notes sold in reliance on Rule 144A.
"Voting Stock" of a Person means Capital Stock of such Person of the class or classes pursuant to which the holders thereof have the general voting power under ordinary circumstances to elect at least a majority of the board of directors, managers or trustees of such Person (irrespective of whether or not at the time Capital Stock of any other class or classes shall have or might have voting power by reason of the happening of any contingency).
SECTION 102 Section References. Each reference to a particular section set forth in this Supplemental Indenture shall, unless the context otherwise requires, refer to this Supplemental Indenture.
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SECTION 103 Effect of Supplemental Indenture. Except as set forth below and except as expressly amended hereby, the Original Indenture shall continue in full force and effect in accordance with the provisions thereof, and the Original Indenture is in all respects hereby ratified and confirmed. This Supplemental Indenture and all its provisions shall be deemed a part of the Original Indenture in the manner and to the extent herein and therein provided. The Original Indenture and this Supplemental Indenture shall be read, taken and construed as one and the same instrument.
This Supplemental Indenture amends and supplements and, to the extent inconsistent therewith, replaces the provisions of the Original Indenture, to which provisions reference is hereby made. For the avoidance of doubt, the provisions of Section 210 hereof amend Section 6.01 of the Original Indenture as set forth in such Section 210; the provisions of Section 211 hereof amend Section 7.06 of the Original Indenture as set forth in such Section 211; the provisions of Section 212 hereof amend Section 7.07 of the Original Indenture as set forth in such Section 212; the provisions of Section 213 hereof amend Section 7.08 of the Original Indenture as set forth in such Section 213; the provisions of Article 3 hereof replace the provisions of Section 5.03 of the Original Indenture in their entirety; the provisions of Section 402 hereof replace the provisions of Section 4.08 of this Original Indenture in their entirety; the provisions of Section 403 hereof replace the provisions of Section 4.09 of the Original Indenture in their entirety; and the provisions of Article 5 hereof amend the provisions of Section 7.02 of the Original Indenture as set forth in such Article 5.
The amendments and supplements to, and replacements of the provisions of, the Original Indenture effected by this Supplemental Indenture shall be applicable only with respect to, and govern the terms of, the Debt Securities issued pursuant to this Supplemental Indenture, and shall not apply to any other Debt Securities that have been or may be issued under the Original Indenture unless a supplemental indenture with respect to such other Debt Securities specifically incorporates such amendments, supplements and replacements.
The provisions of Article XI of the Original Indenture shall apply to the Notes.
ARTICLE 2
THE NOTES
SECTION 201 Title of the Notes. The Notes shall be known and designated as the "3.35% Notes due 2026" of the Company, respectively.
SECTION 202 Amount. The aggregate principal amount of Notes that may be authenticated and delivered under this Supplemental Indenture is initially limited to $1,000,000,000, except for Notes authenticated and delivered upon registration of, transfer of, or exchange for, or in lieu of, other Notes pursuant to Section 2.07, 2.08, 2.09 or 9.04 of the Indenture, or upon repayment in part of any Note pursuant to Article III of the Original Indenture. The Company may, from time to time, subject to compliance with any other applicable provisions of this Supplemental Indenture but without the consent of the Holders, create and issue pursuant to this Supplemental Indenture an unlimited principal amount of additional Notes (in excess of any amounts theretofore issued) having the same terms and conditions to those of the other outstanding Notes, except that any such additional Notes (i) may have a different issue date and issue price from other outstanding Notes and (ii) may have a different amount of interest payable on the first Interest Payment Date after issuance than the amount payable on other outstanding Notes.
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SECTION 203 Stated Maturity. The Stated Maturity of the Notes shall be September 15, 2026.
SECTION 204 Interest. The Notes shall bear cash interest at the rate of 3.35% per annum from September 13, 2016 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, payable semiannually on March 15 and September 15 of each year, beginning on March 15, 2017, to the Persons in whose names such Notes are registered at the close of business on the immediately preceding March 1 or September 1, as the case may be, whether or not a Business Day. Interest on the Notes will be computed on the basis of a 360-day year of twelve 30-day months.
SECTION 205 Payments.
(a) Payments of principal, premium, if any, and interest on the Notes will be made to the Depositary, or its nominee, as the case may be, as the registered owner and holder of the Global Notes representing the Notes. In the event that the Notes are issued in the form of Certificated Notes, payments of principal, premium, if any, and interest thereon will be at the office or agency of the Trustee in the City of New York designated for such purpose;provided that, with respect to definitive Certificated Notes only, payment of interest, other than interest payable at Stated Maturity or upon redemption, may be made at the option of the Company, by the Trustee to the address of the Person entitled as shown on the register for such Debt Securities.
(b) If any Stated Maturity Date, Redemption Date or Interest Payment Date, falls on a day that is not a Business Day, the required payment shall be made on the next Business Day, and no interest shall accrue on the amount so payable for the period between such payment date and the next Business Day.
(c) Payments of principal, premium, if any, and interest on the Notes shall be made in cash or such other coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debt.
SECTION 206 Redemption. Each series of Notes shall be redeemable, in whole or in part, on one or more Redemption Dates at the applicable Redemption Price. If the Redemption Date is not an Interest Payment Date, the amount of the scheduled interest payment on the next succeeding Interest Payment Date will be reduced by the amount of interest accrued to the Redemption Date.
SECTION 207 Forms; Denominations. The Notes shall be Registered Securities. The Global Notes representing the Notes shall be in substantially the forms attached hereto as Exhibits A-1 and A-2.
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The Notes are being offered and sold by the Company pursuant to the Purchase Agreement.
(a) Global Notes. (i) Notes offered and sold in reliance on Rule 144A as provided in the Purchase Agreement shall be issued initially in the form of one or more U.S. Global Notes in definitive fully registered form without interest coupons, deposited on behalf of the subscribers for the Notes represented thereby with the Trustee, as custodian for the Depositary and registered in the name of DTC or a nominee thereof, duly executed by the Company and authenticated by the Trustee as provided in the Indenture. The aggregate principal amount of the U.S. Global Notes may from time to time be increased or decreased by adjustments made on the records of the Trustee and the Depositary as hereinafter provided.
Notes offered and sold in offshore transactions in reliance on Regulation S as provided in the Purchase Agreement shall be issued initially in the form of one or more Regulation S Temporary Global Notes in definitive fully registered form without interest coupons, deposited on behalf of the subscribers for the Notes represented thereby with the Trustee, as custodian for the Depositary, for the accounts of Euroclear and Clearstream and registered in the name of DTC or a nominee thereof duly executed by the Company and authenticated by the Trustee as hereinafter provided. The Distribution Compliance Period shall be terminated upon the receipt by the Trustee of a written certificate from the Depositary, if available, together with copies of certificates from Euroclear and Clearstream, if available, certifying that they have received certification of non-United States beneficial ownership of 100% of the aggregate principal amount of the Regulation S Temporary Global Note (except to the extent of any beneficial owners thereof who acquired an interest therein during the Restricted Period pursuant to another exemption from registration under the Securities Act and who shall take delivery of a beneficial ownership interest in a U.S. Global Note bearing a Legend, all as contemplated by Section 209(a)(iii) hereof).
Following the termination of the Distribution Compliance Period, beneficial interests in the Regulation S Temporary Global Note shall be exchanged for beneficial interests in the Regulation S Permanent Global Note pursuant to the Applicable Procedures. Simultaneously with the authentication of the Regulation S Permanent Global Note, the Trustee shall cancel the Regulation S Temporary Global Note. The aggregate principal amount of the Regulation S Temporary Global Note and the Regulation S Permanent Global Note may from time to time be increased or decreased by adjustments made on the records of the Trustee and the Depositary as hereinafter provided.
Each Global Note shall represent such of the outstanding Notes as shall be specified therein and each shall provide that it shall represent the aggregate principal amount of outstanding Notes from time to time endorsed thereon and the aggregate principal amount of outstanding Notes represented thereby may from time to time be reduced to reflect exchanges or redemptions. Any adjustment of the aggregate principal amount of a Global Note representing the Notes to reflect the amount of any decrease in the principal amount of outstanding Notes represented thereby shall be made by the Trustee in accordance with instructions given by the Holder thereof as required by Section 209 hereof and shall be made on the records of the Trustee and the Depositary.
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(ii) Book-Entry Provisions. This Section 207(a)(ii) shall apply only to Global Notes.
The Company shall execute and the Trustee shall, in accordance with this Section 207(a)(ii) and Section 2.02 of the Indenture, authenticate and deliver initially one or more Global Notes that (a) shall be registered in the name of the Depositary, (b) shall be delivered by the Trustee to the Depositary or pursuant to the Depositary's instructions and (c) shall bear legends substantially to the following effect:
"UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON 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.
"TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS, IN WHOLE BUT NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN ARTICLE TWO OF THE FIFTEENTH SUPPLEMENTAL INDENTURE REFERRED TO ON THE REVERSE HEREOF."
(b) Certificated Notes. Except as otherwise set forth in this Supplemental Indenture, owners of beneficial interests in Global Notes will not be entitled to receive physical delivery of Certificated Notes. Beneficial interests in a Global Note transferred in accordance with Section 209(a)(ii) to an Institutional Accredited Investor who is not a Qualified Institutional Buyer and beneficial interests in a Global Note transferred to the beneficial holders thereof pursuant to Section 209(e) will be issued in certificated, registered form without interest coupons.
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(c) Restrictive Legends. Prior to the Resale Restriction Termination Date, all Global Notes and all Certificated Notes issued in exchange for a beneficial interest in a Global Note shall bear a legend (the "Transfer Restriction Legend") in substantially the following form, unless such Notes have been sold pursuant to a registration statement that has been declared effective under the Securities Act:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
"THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS A NON-U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH THE LAWS APPLICABLE TO SUCH PURCHASER IN THE JURISDICTION IN WHICH SUCH PURCHASE IS MADE AND (2) AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE RESTRICTION TERMINATION DATE") THAT IS,IN THE CASE OF U.S. GLOBAL NOTES: ONE YEAR AND IN THE CASE OF REGULATION S GLOBAL NOTES: 40 DAYS, AFTER THE LATER OF THE ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH THE LAWS APPLICABLE TO IT IN THE JURISDICTION IN WHICH SUCH PURCHASE IS MADE, (D) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S, OR REGISTRAR'S, AS APPLICABLE, RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (C) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE FOREGOING CASES, A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE OR REGISTRAR. THIS LEGEND WILL BE REMOVED UPON THE WRITTEN REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE. IN THE CASE OF REGULATION S GLOBAL NOTES: BY ITS ACQUISITION HEREOF, THE HOLDER HEREOF REPRESENTS THAT IT IS NOT A U.S. PERSON NOR IS IT PURCHASING FOR THE ACCOUNT OF A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT.
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"IN THE CASE OF REGULATIONS TEMPORARY GLOBAL NOTES: THIS GLOBAL NOTE IS A TEMPORARY GLOBAL NOTE FOR PURPOSES OF REGULATION S UNDER THE SECURITIES ACT. NEITHER THIS TEMPORARY GLOBAL NOTE NOR ANY INTEREST HEREIN MAY BE OFFERED, SOLD OR DELIVERED, EXCEPT AS PERMITTED UNDER THE INDENTURE REFERRED TO BELOW."
SECTION 208 Transfer and Exchange.
(a) Notwithstanding any provision to the contrary herein, so long as a Global Note remains Outstanding and is held by or on behalf of the Depositary, transfers of a Global Note, in whole or in part, shall be made only in accordance with Section 209 and this Section 208.
(b) Transfers of a Global Note shall be limited to transfers of such Global Note in whole, or in part, to nominees of the Depositary or to a successor of the Depositary or such successor's nominee.
(c) If Notes are issued upon the transfer, exchange or replacement of Notes subject to restrictions on transfer and bearing a Legend, or if a request is made to remove the Legend on a Note, the Notes so issued shall bear the Legend, or the Legend shall not be removed, as the case may be, unless there is delivered to the Company and the Registrar such satisfactory evidence, which shall include an opinion of counsel, as may be reasonably required by the Company and the Registrar, that neither the Legend nor the restrictions on transfer set forth therein are required to ensure that transfers thereof comply with the provisions of Rule 144A, Rule 144 or Regulation S under the Securities Act, that such Notes are not "restricted" within the meaning of Rule 144 under the Securities Act or that any such exchange or replacement Notes have been issued in a registered transaction under the Securities Act. Upon (i) provision of such satisfactory evidence, or (ii) notification by the Company to the Trustee and the Registrar of the sale or exchange of such Notes pursuant to a registration statement that is effective at the time of such sale, the Trustee, at the written direction of the Company, shall authenticate and deliver a Note that does not bear the Legend. If the Legend is removed from the face of a Note and the Note is subsequently held by an Affiliate of the Company, the Legend shall be reinstated.
The Trustee and the Registrar shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Supplemental Indenture or under applicable law with respect to any transfer of any interest in any Note (including transfers between or among the Depositary's participants or beneficial owners of interest in any Global Note) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Supplemental Indenture and to examine the same to determine substantial compliance as to form with the express requirements hereof.
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SECTION 209 Global Notes.
(a) Notwithstanding any other provisions of this Supplemental Indenture or the Notes, (A) transfers of a Global Note, in whole or in part, shall be made only in accordance with Section 2.07 of the Indenture and Sections 208 and 209(a)(i) below, (B) transfer of a beneficial interest in a Global Note for a Certificated Note shall comply with Section 2.07 of the Indenture and Section 209(a)(ii) below, (C) transfers of a beneficial interest in a Regulation S Global Note for a beneficial interest in a U.S. Global Note shall comply with Section 2.07 of the Indenture and Section 209(a)(iii) below, and (D) transfers of a Certificated Note shall comply with Section 2.07 of the Indenture and Sections 209(a)(iv) and (v) below.
(i) Transfer of Global Note. A Global Note may not be transferred, in whole or in part, to any Person other than the Depositary or a nominee thereof, and no such transfer to any such other Person may be registered; provided that this clause (i) shall not prohibit any transfer of a Note that is issued in exchange for a Global Note but is not itself a Global Note. No transfer of a Note to any Person shall be effective under the Indenture or the Notes unless and until such Note has been registered in the name of such Person. Nothing in this Section 209(a)(i) shall prohibit or render ineffective any transfer of a beneficial interest in a Global Note effected in accordance with the other provisions of this Section 209(a).
(ii) Restrictions on Transfer of a Beneficial Interest in a Global Note for a Certificated Note. A beneficial interest in a Global Note may not be exchanged for a Certificated Note except upon satisfaction of the requirements set forth below. Upon receipt by the Trustee of a request for transfer of a beneficial interest in a Global Note in accordance with Applicable Procedures for a Certificated Note in the form satisfactory to the Trustee, together with:
(a) so long as the Notes are Restricted Notes, certification, in the form set forth in Exhibit B-1 attached hereto, and, if requested by the Company or the Registrar, certification in the form set forth in Exhibit B-2 attached hereto, that such beneficial interest in the Global Note is being transferred to an Institutional Accredited Investor;
(b) written instructions to the Trustee to make, or direct the Registrar to make, an adjustment on its books and records with respect to such Global Note to reflect a decrease in the aggregate principal amount of the Notes represented by the Global Note, such instructions to contain information regarding the Depositary account to be credited with such decrease; and
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(c) if the Company or Registrar so requests, an opinion of counsel or other evidence reasonably satisfactory to them as to compliance with the restrictions set forth in the applicable Legend,
then the Trustee shall cause, or direct the Registrar to cause, in accordance with the standing instructions and procedures existing between the Depositary and the Registrar, the aggregate principal amount of Notes represented by the Global Note to be decreased by the aggregate principal amount of the Certificated Note to be issued, shall issue such Certificated Note and shall debit or cause to be debited to the account of the Person specified in such instructions a beneficial interest in the Global Note equal to the principal amount of the Certificated Note so issued.
(iii) Restrictions on Transfer of Beneficial Interest in a Regulation S Global Note for a Beneficial Interest in a U.S. Global Note.
(a) On or prior to the expiration of the Distribution Compliance Period, a beneficial interest in a Regulation S Global Note may be transferred to a Person who takes delivery in the form of an interest in the corresponding U.S. Global Note only upon receipt by the Trustee of a written certification from the transferor to the effect that such transfer is being made (i)(a) to a Person whom the transferor reasonably believes is a Qualified Institutional Buyer in a transaction meeting the requirements of Rule 144A or (b) pursuant to another exemption from the registration requirements under the Securities Act which is accompanied by an Opinion of Counsel regarding the availability of such exemption and (ii) in accordance with all applicable securities laws of any state of the United States or any other jurisdiction.
(b) Beneficial interests in the U.S. Global Note may be transferred to a Person who takes delivery in the form of an interest in the Regulation S Global Note, whether before or after the expiration of the Distribution Compliance Period, only if the transferor first delivers to the Trustee a written certificate to the effect that such transfer is being made in accordance with Rule 904 of Regulation Sor Rule 144 (if available).
(iv) Transfer and Exchange of Certificated Notes. When Certificated Notes are presented to the Registrar with a request:
(x) to register the transfer of such Certificated Notes; or
(y) to exchange such Certificated Notes for an equal principal amount of Certificated Notes of other authorized denominations,
the Registrar shall register the transfer or make the exchange as requested if its reasonable requirements for such transaction are met; provided, however, that the Certificated Notes surrendered for transfer or exchange:
(a) shall be duly endorsed or accompanied by a written instrument of transfer in form reasonably satisfactory to the Company and the Registrar, duly executed by the Holder thereof or his attorney duly authorized in writing; and
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(b) so long as such Notes are Restricted Notes, such Notes are being transferred or exchanged pursuant to clause (A), (B) or (C) below, and are accompanied by the following additional information and documents, as applicable:
(A) if such Certificated Notes are being delivered to the Registrar by a Holder for registration in the name of such Holder, without transfer, a certification from such Holder to that effect; or
(B) if such Certificated Notes are being transferred to the Company, a certification to that effect; or
(C) if such Certificated Notes are being transferred pursuant to an exemption from registration, (i) a certification to that effect (in the form set forth in Exhibit B-1 and B-2, if applicable) and (ii) if the Company or Registrar so requests, an opinion of counsel or other evidence reasonably satisfactory to them as to the compliance with the restrictions set forth in the Transfer Restriction Legend.
(v) Restrictions on Transfer of a Certificated Note for a Beneficial Interest in a Global Note. A Certificated Note may not be exchanged for a beneficial interest in a Global Note except upon satisfaction of the requirements set forth below.
Upon receipt by the Trustee of a Certificated Note, duly endorsed or accompanied by appropriate instruments of transfer, in form satisfactory to the Trustee, together with:
(a) so long as the Notes are Restricted Notes, certification, in the form set forth in Exhibit B-1, that such Certificated Note is being transferred to a Qualified Institutional Buyer in accordance with Rule 144A; and
(b) written instructions directing the Trustee to make, or to direct the Registrar to make, an adjustment on its books and records with respect to such Global Note to reflect an increase in the aggregate principal amount of the Notes represented by the Global Note, such instructions to contain information regarding the Depositary account to be credited with such increase,
then the Trustee shall cancel such Certificated Note and cause, or direct the Registrar to cause, in accordance with the standing instructions and procedures existing between the Depositary and the Registrar, the aggregate principal amount of Notes represented by the Global Note to be increased by the aggregate principal amount of the Certificated Note to be exchanged, and shall credit or cause to be credited to the account of the Person specified in such instructions a beneficial interest in the Global Note equal to the principal amount of the Certificated Note so cancelled. If no Global Notes are then Outstanding, the Company shall issue and the Trustee shall authenticate, upon receipt of a Company Order, a new Global Note in the appropriate principal amount.
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(b) Subject to the succeeding paragraph, every Note shall be subject to the restrictions on transfer provided in the applicable Legend including the delivery of an opinion of counsel, if so provided. Whenever any Restricted Note is presented or surrendered for registration of transfer or for exchange for a Note registered in a name other than that of the Holder, such Note must be accompanied by a certificate in substantially the form set forth in Exhibit B-1, dated the date of such surrender and signed by the Holder of such Note, as to compliance with such restrictions on transfer. The Registrar shall not be required to accept for such registration of transfer or exchange any Note not so accompanied by a properly completed certificate.
(c) (i) The restrictions imposed by the Transfer Restriction Legend upon the transferability of any Restricted Note shall cease and terminate when such Note has been sold or exchanged pursuant to an effective registration statement under the Securities Act or may be transferred in compliance with Rule 144 under the Securities Act (or any successor provision thereto). Any Note as to which such restrictions on transfer shall have expired in accordance with their terms or shall have terminated may, upon a surrender of such Note for exchange to the Registrar in accordance with the provisions of this Section 209 (accompanied, in the event that such restrictions on transfer have terminated by reason of a transfer in compliance with Rule 144 or any successor provision, by an opinion of counsel having substantial experience in practice under the Securities Act and otherwise reasonably acceptable to the Company, addressed to the Company, the Trustee and the Registrar and in form acceptable to the Company, to the effect that the transfer of such Note has been made in compliance with Rule 144 or such successor provision), be exchanged for a new Note, of like tenor and aggregate principal amount, which shall not bear the Transfer Restriction Legend. The Company shall inform the Trustee of the effective date of any registration statement registering the Notes under the Securities Act. The Trustee shall not be liable for any action taken or omitted to be taken by it in good faith in accordance with the aforementioned opinion of counsel.
(d) As used in the preceding two paragraphs of this Section 209, the term "transfer" encompasses any sale, pledge, transfer, hypothecation or other disposition of any Note.
(e) The provisions of clauses (i), (ii), (iii), (iv), and (v) below shall apply only to Global Notes:
(i) Notwithstanding any other provisions of the Indenture or the Notes, except as provided in Section 209(a)(ii), a Global Note shall not be exchanged in whole or in part for a Note registered in the name of any Person other than the Depositary or one or more nominees thereof, provided that a Global Note may be exchanged for Certificated Notes registered in the names of any Person designated by the Depositary in the event that (i) the Depositary has notified the Company that it is unwilling or unable to continue as depositary for such Global Note or the Depositary has ceased to be a "clearing agency" registered under the Exchange Act, and a successor Depositary is not appointed by the Company within 90 days or (ii) an Event of Default has occurred and is continuing with respect to the Notes. Any Global Note exchanged pursuant to clause (i) above shall be so exchanged in whole and not in part, and any Global Note exchanged pursuant to clause (ii) above may be exchanged in whole or from time to time in part as directed by the Depositary. Prior to the issuance of Certificated Notes in exchange for any beneficial interests in a Regulation S Global Note, the holder of such beneficial interests shall, as a condition to such exchange, certify in a form satisfactory to the Company that such holder is a non-U.S. person (as that term is defined in Regulation S under the Securities Act) or a U.S. person who purchased such beneficial interest in a transaction that did not require registration under the Securities Act. In the event that Certificated Notes are issued in respect of beneficial interests in a Regulation S Global Note at any time prior to the end of the Distribution Compliance Period (other than in a transaction subject to Rule 144A), the Company shall as promptly as practicable, institute procedures, including appropriate certifications, reasonably designed to ensure that any transfer of such Certificated Notes prior to the end of the Distribution Compliance Period is made only in accordance with the provisions of Regulation S, pursuant to registration under the Securities Act or pursuant to an exemption from such registration.
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(ii) Notes issued in exchange for a Global Note or any portion thereof shall be issued in definitive, fully registered form, without interest coupons, shall have an aggregate principal amount equal to that of such Global Note or portion thereof to be so exchanged, shall be registered in such names and be in such authorized denominations as the Depositary shall designate and shall bear the applicable Legend. Any Global Note to be exchanged in whole shall be surrendered by the Depositary to the Trustee, as Registrar. With regard to any Global Note to be exchanged in part, either such Global Note shall be so surrendered for exchange or, if the Trustee is acting as custodian for the Depositary or its nominee with respect to such Global Note, the principal amount thereof shall be reduced, by an amount equal to the portion thereof to be so exchanged, by means of an appropriate adjustment made on the records of the Trustee. Upon any such surrender or adjustment, the Trustee shall authenticate and deliver the Note issuable on such exchange to or upon the order of the Depositary or an authorized representative thereof.
(iii) Subject to the provisions of clause (v) below, the registered Holder may grant proxies and otherwise authorize any Person, including Agent Members (as defined below) and Persons that may hold interests through Agent Members, to take any action which a Holder is entitled to take under the Indenture or the Notes.
(iv) In the event of the occurrence of any of the events specified in clause (i) above, the Company will promptly make available to the Trustee a reasonable supply of Certificated Notes.
(v) Neither any members of, or participants in, the Depositary (collectively, the "Agent Members") nor any other Persons on whose behalf Agent Members may act shall have any rights under the Indenture with respect to any Global Note registered in the name of the Depositary or any nominee thereof, or under any such Global Note, and the Depositary or such nominee, as the case may be, may be treated by the Company, the Trustee and any agent of the Company or the Trustee as the absolute owner and holder of such Global Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee or any agent of the Company or the Trustee from giving effect to any written certification, proxy or other authorization furnished by the Depositary or such nominee, as the case may be, or impair, as between the Depositary, its Agent Members and any other Person on whose behalf an Agent Member may act, the operation of customary practices of such Persons governing the exercise of the rights of a Holder of any Note.
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SECTION 210 Events of Default. For purposes of this Supplemental Indenture and the Notes issued hereunder, Section 6.01 of the Original Indenture is hereby amended by deleting the clause immediately following subsection (i) in the first sentence of such Section and inserting in its place the following:
"then and in each and every case that an Event of Default described in clause (a), (b), (c), (d), (e), (f), (g) (with respect to Restricted Subsidiaries only), (h) (with respect to Restricted Subsidiaries only) or (i) with respect to Debt Securities of that series at the time Outstanding occurs and is continuing, unless the principal of and interest on all the Debt Securities of that series shall have already become due and payable, either the Trustee or the Holders of not less than 25% in aggregate principal amount of the Debt Securities of that series then Outstanding hereunder, by notice in writing to the Company (and to the Trustee if given by Holders), may declare the principal of (or, if the Debt Securities of that series are Original Issue Discount Debt Securities, such portion of the principal amount as may be specified in the terms of that series) and interest on all the Debt Securities of that series to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything in this Indenture or in the Debt Securities or Coupons appertaining thereto of that series contained to the contrary notwithstanding."
SECTION 211 Compensation and Reimbursement. For purposes of this Supplemental Indenture and the Notes issued hereunder, Section 7.06 of the Original Indenture is hereby amended to be replaced with the following:
The Company covenants and agrees to pay in Dollars to the Trustee such compensation as the Company and the Trustee shall from time to time agree in writing for all services rendered by it hereunder (which shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust), and, except as otherwise expressly provided herein, the Company will pay or reimburse in Dollars the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any of the provisions of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents, attorneys and counsel and of all Persons not regularly in its employ) except any such expense, disbursement or advances as may arise from its negligence or wilful misconduct. The Company also covenants to indemnify in Dollars each of the Trustee or any predecessor Trustee for, and to hold it harmless against, any loss, damage, claim, liability or expense, including the reasonable fees and expenses of counsel, and taxes (other than taxes based upon, measured by or determined by the income of the Trustee) incurred without negligence or wilful misconduct on the part of the Trustee, arising out of or in connection with the acceptance or administration of this trust or trusts hereunder, including the reasonable costs and expenses of defending itself against any claim of liability in connection with the exercise or performance of any of its powers or duties hereunder. The obligations of the Company under this Section 7.06 to compensate and indemnify the Trustee and to pay or reimburse the Trustee for expenses, disbursements and advances shall constitute additional indebtedness hereunder and shall survive the resignation or removal of the Trustee and/or the satisfaction and discharge of this Indenture. The Company and the Holders agree that such additional indebtedness shall be secured by a Lien prior to that of the Debt Securities and Coupons, if any, upon all property and funds held or collected by the Trustee, as such, except funds held in trust for the payment of principal of, and premium, if any, or interest on, particular Debt Securities and Coupons.
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SECTION 212 Right of Trustee to Rely on an Officers' Certificate Where No Other Evidence Specifically Prescribed. With respect to the Notes, Section 7.07 of the Original Indenture is hereby amended to be replaced with the following:
Except as otherwise provided in Section 7.01, whenever in the administration of the provisions of this Indenture the Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering or omitting any action hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) may, be deemed to be conclusively proved and established by an Officers' Certificate delivered to the Trustee, and such certificate, shall be full warrant to the Trustee for any action taken, suffered or omitted by it under the provisions of this Indenture.
SECTION 213 Separate Trustee; Replacement of Trustee. With respect to the Notes, Section 7.08 of the Original Indenture is hereby amended to be replaced with the following:
The Company may, but need not, appoint a separate Trustee for any one or more series of Debt Securities. The Trustee may resign with respect to one or more or all series of Debt Securities at any time by giving 30 days' notice to the Company. The Holders of a majority in principal amount of the Debt Securities of a particular series may remove the Trustee for such series and only such series by so notifying the Trustee and may appoint a successor Trustee with 30 days' notice. The Company shall remove the Trustee with 30 days' notice if:
| (1) | the Trustee fails to comply with Section 7.10; |
| (2) | the Trustee is adjudged bankrupt or insolvent; |
| (3) | a receiver or other public officer takes charge of the Trustee or its property; or |
| (4) | the Trustee otherwise becomes incapable of acting. |
If the Trustee resigns, is removed by the Company or by the Holders of a majority in principal amount of the Debt Securities of a particular series and such Holders do not reasonably promptly appoint a successor Trustee, or if a vacancy exists in the office of Trustee for any reason (the Trustee in such event being referred to herein as the retiring Trustee), the Company shall promptly appoint a successor Trustee. No resignation or removal of the Trustee and no appointment of a successor Trustee shall become effective until the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of this Section 7.08.
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A successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Company. Thereupon the resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee under this Indenture. The successor Trustee shall mail a notice of its succession to Holders of Debt Securities of each applicable series. The retiring Trustee shall promptly transfer all property held by it as Trustee to the successor Trustee, subject to the Lien provided for in Section 7.06.
If a successor Trustee does not take office within 30 days after the retiring Trustee resigns or is removed, the retiring Trustee or the Holders of 25% in principal amount of the Debt Securities of any applicable series may petition, at the expense of the Company, any court of competent jurisdiction for the appointment of a successor Trustee for the Debt Securities of such series.
If the Trustee fails to comply with Section 7.10, any Holder of Debt Securities of any applicable series may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee for the Debt Securities of such series.
Notwithstanding the replacement of the Trustee pursuant to this Section 7.08, the Company's obligations under Section 7.06 shall continue for the benefit of the retiring Trustee.
In the case of the appointment hereunder of a separate or successor trustee with respect to the Debt Securities of one or more series, the Company, any retiring Trustee and each successor or separate Trustee with respect to the Debt Securities of any applicable series shall execute and deliver an Indenture Supplement hereto (1) which shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of any retiring Trustee with respect to the Debt Securities of any series as to which any such retiring Trustee is not retiring shall continue to be vested in such retiring Trustee and (2) that shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trustee hereunder by more than one trustee, it being understood that nothing herein or in such supplemental Indenture shall constitute such Trustees co-trustees of the same trust and that each such separate, retiring or successor Trustee shall be Trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee.
ARTICLE 3
REPORTS BY THE COMPANY
So long as any of the Debt Securities are "restricted securities" within the meaning of Rule 144(a)(3) under the Securities Act, the Company will, during any period in which it is not subject to Sections 13 or 15(d) of the Exchange Act or it is not exempt from such reporting requirements pursuant to and in compliance with Rule 12g3-2(b) under the Exchange Act, provide to each Holder of Notes and to each prospective purchaser (as designated by such Holder) of Notes, upon the request of such Holder or prospective purchaser, any information required to be provided by Rule 144A(d)(4) under the Securities Act.
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ARTICLE 4
ADDITIONAL COVENANTS
SECTION 401 Purchase of Notes Upon a Change of Control Repurchase
Event.
(a) If a Change of Control Repurchase Event occurs with respect to the Notes, each Holder of the Notes will have the right to require that the Company purchase all or any part (in denominations of $2,000 and integral multiples of $1,000 in excess thereof) of such Holder's Notes pursuant to a Change of Control offer (a "Change of Control Offer") on the terms set forth in this Supplemental Indenture, except that the Company shall not be obligated to repurchase the Notes pursuant to this Section 401 in the event that the Company has exercised the right to redeem all of the Notes as described in Section 206. In the Change of Control Offer, the Company will offer to purchase all of the Notes at a purchase price (the "Change of Control Purchase Price") in cash in an amount equal to 101% of the principal amount of such series of Notes, plus accrued but unpaid interest, if any, to, but not including, the date of purchase (the "Change of Control Purchase Date") (subject to the rights of Holders of record on the relevant record date to receive interest due on the relevant Interest Payment Date if the Notes have not been redeemed prior to such record date).
(b) Within 30 days after any Change of Control Repurchase Event with respect to the Notes or, at the Company's option, prior to such Change of Control but after the public announcement of such pending Change of Control, the Company must notify the Trustee and give written notice of the Change of Control Repurchase Event to the Trustee and each Holder of Notes, by first-class mail or delivered electronically if held by DTC, to the address of such Holder appearing in the security register or otherwise in accordance with the procedures of DTC. The notice must state, among other things:
(1) that a Change of Control Repurchase Event has occurred or may occur with respect to the Notes and the date of such event;
(2) the purchase price and the purchase date which shall be fixed by the Company on a Business Day no earlier than 30 days nor later than 60 days from the date the notice is mailed or delivered electronically, other than as may be required by law;
(3) that any Note not tendered will continue to accrue interest;
(4) that, unless the Company defaults in the payment of the Change of Control Purchase Price, any Notes accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest after the Change of Control Purchase Date; and
(5) other procedures that a Holder of Notes must follow to accept a Change of Control Offer or to withdraw acceptance of the Change of Control Offer.
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In addition, the notice, if sent prior to the date of the consummation of the Change of Control, will state that the Change of Control Offer is conditioned on the Change of Control being consummated on or prior to the Change of Control Purchase Date.
(c) If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not withdraw such Notes in a Change of Control Offer and the Company, or any third party making a Change of Control Offer in lieu of the Company, as described in clause (d) below, purchases all of the Notes validly tendered and not withdrawn by such Holders, the Company will have the right, upon not less than 30 nor more than 60 days' prior notice, with such notice given not more than 30 days following the Change of Control Purchase Date, to redeem all Notes that remain Outstanding following such purchase at a redemption price in cash equal to the Change of Control Purchase Price plus, to the extent not included in the Change of Control Purchase Price, accrued and unpaid interest, if any, on the Notes that remain Outstanding to, but not including, the date of redemption (subject to the rights of Holders of record on relevant record dates to receive interest due on the relevant Interest Payment Date).
(d) The Company will comply with Rule 14e-l under the Exchange Act, and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control Repurchase Event. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 401, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Section 401 by virtue of its compliance with such securities laws and regulations. The Company will not be required to make a Change of Control Offer upon a Change of Control Repurchase Event if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements described in this Supplemental Indenture applicable to a Change of Control Offer made by the Company and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer.
(e) On the Change of Control Purchase Date, the Company will, to the extent permitted by law:
(1) accept for payment all Notes or portions thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Depositary or the Trustee, as applicable, an amount equal to the aggregate Change of Control Purchase Price in respect of all Notes or portions thereof so tendered; and
(3) deliver, or cause to be delivered, to the Trustee for cancellation of the Notes so accepted together with an Officers' Certificate to the Trustee stating that such Notes or portions thereof have been tendered to and purchased by the Company.
SECTION 402 Limitation on Liens. With respect to the Notes, Section 4.08 of the Original Indenture is hereby amended to be replaced with the following:
23
As long as any Notes remain Outstanding, the Company will not, and will not permit any Restricted Subsidiary to, create or incur any Lien (other than Permitted Liens) on Restricted Property to secure the payment of Indebtedness of the Company or any Restricted Subsidiary if immediately after the creation or incurrence of such Lien, the aggregate outstanding principal amount of all Indebtedness of the Company and the Restricted Subsidiaries that is secured by Liens (other than Permitted Liens) on Restricted Property would exceed the greater of (i) $1,100,000,000 million or (ii) 15% of the aggregate outstanding principal amount of all Indebtedness of the Company and the Restricted Subsidiaries (whether or not so secured), unless effective provision is made whereby the Notes (together with, if the Company shall so determine, any other Indebtedness ranking equally with the Notes, whether then existing or thereafter created) are secured equally and ratably with (or prior to) such Indebtedness (but only for so long as such Indebtedness is so secured).
SECTION 403 Limitation on Indebtedness of Restricted Subsidiaries. For purposes of this Supplemental Indenture and the Notes issued hereunder, Section 4.09 of the Original Indenture is hereby amended to be replaced with the following:
As long as any Notes remain Outstanding, the Company will not permit any Restricted Subsidiary to incur any Indebtedness if immediately after the incurrence of such Indebtedness, the aggregate outstanding principal amount of all Indebtedness of the Restricted Subsidiaries would exceed the greater of (i) $1,100,000,000 or (ii) 15% of the aggregate outstanding principal amount of all Indebtedness of the Company and the Restricted Subsidiaries; provided that in any event, a Restricted Subsidiary may incur Indebtedness to extend, renew or replace Indebtedness of such Restricted Subsidiary to the extent that the principal amount of the Indebtedness so incurred does not exceed the principal amount of the Indebtedness extended, renewed or replaced thereby immediately prior to such extension, renewal or replacement plus any premium, accrued and unpaid interest or capitalized interest payable thereon.
ARTICLE 5
MISCELLANEOUS PROVISIONS
The Trustee makes no undertaking or representations in respect of, and shall not be responsible in any manner whatsoever for and in respect of, the validity or sufficiency of this Supplemental Indenture or the proper authorization or the due execution hereof by the Company or for or in respect of the recitals and statements contained herein, all of which recitals and statements are made solely by the Company.
24
The Trustee (which shall be deemed to include the Paying Agent when the Trustee is also acting as a Paying Agent) shall have the right to accept and act upon instructions, including funds transfer instructions ("Instructions") given pursuant to this Indenture and delivered using Electronic Means (as defined above); provided, however, that the Company shall provide to the Trustee an incumbency certificate listing officers with the authority to provide such Instructions ("Authorized Officers") and containing specimen signatures of such Authorized Officers, which incumbency certificate shall be amended by the Company whenever a person is to be added or deleted from the listing. If the Company elects to give the Trustee Instructions using Electronic Means and the Trustee in its discretion elects to act upon such Instructions, the Trustee's understanding of such Instructions shall be deemed controlling. The Company understands and agrees that the Trustee cannot determine the identity of the actual sender of such Instructions and that the Trustee shall conclusively presume that directions that purport to have been sent by an Authorized Officer listed on the incumbency certificate provided to the Trustee have been sent by such Authorized Officer. The Company shall be responsible for ensuring that only Authorized Officers transmit such Instructions to the Trustee and that the Company and all Authorized Officers are solely responsible to safeguard the use and confidentiality of applicable user and authorization codes, passwords and/or authentication keys upon receipt by the Company. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee's reliance upon and compliance with such Instructions notwithstanding such directions conflict or are inconsistent with a subsequent written instruction. The Company agrees: (i) to assume all risks arising out of the use of Electronic Means to submit Instructions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized Instructions, and the risk of interception and misuse by third parties; (ii) that it is fully informed of the protections and risks associated with the various methods of transmitting Instructions to the Trustee and that there may be more secure methods of transmitting Instructions than the method(s) selected by the Company; (iii) that the security procedures (if any) to be followed in connection with its transmission of Instructions provide to it a commercially reasonable degree of protection in light of its particular needs and circumstances; and (iv) to notify the Trustee immediately upon learning of any compromise or unauthorized use of the security procedures.
For purposes of this Supplemental Indenture and the Notes, Section 7.02 of the Original Indenture is hereby amended to include the following additional rights of the Trustee:
"(i) in no event shall the Trustee be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action;
(j) in no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances;
(k) the Trustee shall not be deemed to have notice of any Default or Event of Default unless a Responsible Officer of the Trustee has actual written notice thereof at the designated Corporate Trust Office of the Trustee, and such notice references the Notes and this Indenture;
25
(l) the rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder;
(m) the Trustee may require that the Company deliver a certificate setting forth the names of individuals, and their titles and direct-dial telephone numbers, of officers authorized at such time to take specified actions pursuant to this Indenture";
(n) the Trustee shall not be liable for errors in judgment made in good faith unless it is proved that the Trustee was grossly negligent in ascertaining the pertinent facts; and
(o) the Trustee may act at the direction of requisite Holders without liability.
This Supplemental Indenture shall be governed by, and construed in accordance with, the laws of the State of New York.
Each of the Company and the Trustee (i) expressly and irrevocably consents to submit itself to the exclusive personal jurisdiction of the state courts in the Borough of Manhattan in the City of New York in the State of New York, and any federal court located in the Borough of Manhattan in the City of New York in the State of New York, together with any appellate court therefrom, with respect to all actions and proceedings arising out of this Indenture or the Notes and (ii) expressly and irrevocably waives (and agrees not to plead or claim) any objection to the laying of venue of any action or proceeding arising out of this Indenture or the Notes in such court or that any such action or proceeding brought in any such court has been brought in an inconvenient forum.
This Supplemental Indenture may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.
EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS SUPPLEMENTAL INDENTURE, THE NOTES OR THE TRANSACTION CONTEMPLATED HEREBY.
In order to comply with applicable tax laws (inclusive of rules, regulations and interpretations promulgated by competent authorities) related to the Indenture in effect from time to time (collectively, "Applicable Tax Law") that a foreign financial institution, issuer, trustee, paying agent or other party is or has agreed to be subject to, the Company agrees (i) upon reasonable written request of the Trustee, to use commercially reasonable efforts to provide to the Trustee, to the extent available, sufficient information about the parties and/or transactions (including any modification to the terms of such transactions) so that the Trustee can determine whether it has tax related obligations under Applicable Tax Law and (ii) that the Trustee shall be entitled to make any withholding or deduction in respect of taxes from payments under the Indenture to the extent necessary to comply with Applicable Tax Law for which the Trustee shall not have any liability. Nothing in the immediately preceding sentence shall be construed as obligating the Company to make any "gross up" payment or similar reimbursement in connection with a payment in respect of which amounts are so withheld or deducted. The terms of this paragraph shall survive the satisfaction and discharge of the Indenture.
[SIGNATURE PAGES FOLLOW]
26
IN WITNESS WHEREOF, the Parties have executed this Fifteenth Supplemental Indenture by their duly authorized signatories as of the date first above written.
| COX COMMUNICATIONS, INC. | |||
| By: | /s/ Mark F. Bowser | ||
| Name: | Mark F. Bowser | ||
| Title: | Executive Vice President and Chief Financial Officer | ||
| By: | /s/ Charles L. Odom | ||
| Name: | Charles L. Odom | ||
| Title: | Vice President and Treasurer | ||
[Signature Page to Supplemental Indenture]
| THE BANK OF NEW YORK MELLON TRUST | |||
| COMPANY, N.A., as Trustee | |||
| By: | /s/ Julie Hoffman-Ramos | ||
| Name: | Julie Hoffman-Ramos | ||
| Title: | Vice President | ||
[Signature Page to Supplemental Indenture]
EXHIBIT A-1
[FORM OF FACE OF SECURITY]
[TRANSFER RESTRICTION LEGEND]
[THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT''), OR ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS A NON-US. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH THE LAWS APPLICABLE TO SUCH PURCHASER IN THE JURISDICTION IN WHICH SUCH PURCHASE IS MADE AND (2) AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE RESTRICTION TERMINATION DATE") THAT IS ONE YEAR AFTER THE LATER OF THE ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C) PURSUANT TO OFFERS AND SALES TO NON-US. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH THE LAWS APPLICABLE TO IT IN THE JURISDICTION IN WHICH SUCH PURCHASE IS MADE, (D) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S, OR REGISTRAR'S, AS APPLICABLE, RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (C) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE FOREGOING CASES, A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE OR REGISTRAR. THIS LEGEND WILL BE REMOVED UPON THE WRITTEN REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.]
[GLOBAL NOTES LEGEND]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON 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.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS, IN WHOLE BUT NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL
BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN ARTICLE TWO OF THE FIFTEENTH SUPPLEMENTAL INDENTURE REFERRED TO ON THE REVERSE HEREOF.]
A-1-1
| No. R- | PRINCIPAL AMOUNT | |
| CUSIP No. 224044 CG0 | $ | |
COX COMMUNICATIONS, INC.
3.35% Notes due 2026
COX COMMUNICATIONS, INC., a Delaware corporation (hereinafter called the "Company," which term includes any successor corporation under the Indenture referred to below), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of [ ] ($ ) on September 15, 2026 (the "Maturity Date"), unless previously redeemed, and to pay interest thereon from September 13, 2016 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, payable semiannually on March 15 and September 15 of each year (each, an "Interest Payment Date"), commencing March 15, 2017 at the rate of 3.35% per annum, until the principal hereof is paid or duly made available for payment. Interest shall be computed on the basis of a 360-day year of twelve 30-day months. The interest so payable and punctually paid or duly provided for on any Interest Payment Date will, as provided in the Indenture, be paid to the Person in whose name this Note (or one or more predecessor securities) is registered at the close of business on the regular record date for such interest, which shall be March 1 or September 1 (whether or not a Business Day), as the case may be, immediately preceding such Interest Payment Date. Any such interest which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date shall forthwith cease to be payable to the registered Holder hereof on the relevant regular record date by virtue of having been such Holder, and may be paid to the Person in whose name this Note (or one or more predecessor securities) is registered at the close of business on a subsequent special record date (which shall be not more than 15 days and not less than 10 days before the payment date) for the payment of such defaulted interest to be fixed by the Trustee, notice whereof shall be given to the Holders of Notes of this series not less than 10 days prior to such special record date, or may be paid at any time in any other lawful manner, all as more fully provided in such Indenture. If any Interest Payment Date, Redemption Date or the Maturity Date falls on a day that is not a Business Day, the required payment shall be made on the next Business Day as if it were made on the date such payment was due and no interest shall accrue on the amount so payable for the period from and after such Interest Payment Date, Redemption Date or the Maturity Date, as the case may be, to such next Business Day. .Payments of principal, premium, if any, and interest hereunder shall be made in such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts and shall be made immediately available to the Holder (as defined below) hereof.
This Note is one of the duly authorized series of Debt Securities of the Company, designated as the Company's "3.35% Notes due 2026" (the "Notes"), initially limited to an aggregate principal amount of $1,000,000,000, all issued or to be issued under and pursuant to an Indenture dated as of June 27, 1995 (the "Original Indenture"), as supplemented by the Fifteenth Supplemental Indenture dated as of September 13, 2016 (the "Fifteenth Supplemental Indenture" and, together with the Original Indenture, the "Indenture"), duly executed and delivered by the Company to The Bank of New York Mellon Trust Company, N.A, as trustee (hereinafter referred to as the "Trustee"), to which Indenture and all indentures supplemental thereto reference is hereby made for a description of the rights, limitation of rights, obligations, duties and immunities thereunder of the Trustee, the Company and the Holders (the words "Holders" or "Holder" meaning the registered holders or registered holder of the Notes).
Prior to the Par Call Date, this Note will be redeemable at the option of the Company, in whole at any time or in part from time to time, at a Redemption Price equal to the greater of (i) 100% of the principal amount of this Note to be redeemed and (ii) the sum, as determined by the Quotation Agent, of the present values of the principal amount of this Note to be redeemed and the remaining scheduled payments of interest on the principal amount of this Note to be redeemed (assuming that this Note matured on the Par Call Date), exclusive of interest accrued to the Redemption Date, in each case, discounted from their respective scheduled payment dates to the Redemption Date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as defined below) plus 30 basis points, plus accrued and unpaid interest thereon to, but not including, the Redemption Date. On or after the Par Call Date, this Note will be redeemable at the option of the Company, in whole at any time or in part from time to time, at a Redemption Price equal to 100% of the principal amount of this Note being redeemed, plus accrued and unpaid interest thereon to, but not including, the Redemption Date.
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"Comparable Treasury Issue" means, with respect to this Note subject to redemption, the United States Treasury security selected by the Quotation Agent as having an actual or interpolated maturity comparable to the remaining life of this Note to be redeemed (assuming that this Note matured on the Par Call Date) that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity with the remaining life of this Note to be redeemed (assuming, for this purpose, that this Note matured on the Par Call Date).
"Comparable Treasury Price" means, with respect to any Redemption Date, the average of six Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and lowest of such Reference Treasury Dealer Quotations, or, if the Quotation Agent obtains fewer than five such Reference Treasury Dealer Quotations, the average of all such quotations.
"Par Call Date" means June 15, 2026.
"Quotation Agent" means the Reference Treasury Dealer appointed by the Company.
"Reference Treasury Dealer" means, with respect to any Redemption Date, (i) J.P. Morgan Securities LLC, Wells Fargo Securities, LLC and Mizuho Securities USA Inc., and each of their respective successors and (ii) three other nationally recognized investment banking firms (or their respective affiliates) that the Company selects in connection with such Redemption Date, and each of their respective successors; provided, however, that if any of the foregoing shall cease to be a U.S. government securities dealer in the United States (a "Primary Treasury Dealer"), the Company will substitute another Primary Treasury Dealer.
"Reference Treasury Dealer Quotations" means, with respect to each Reference Treasury Dealer and any Redemption Date, the average, as determined by the Quotation Agent, of the bid and asked prices for the Comparable Treasury Issue, expressed in each case as a percentage of its principal amount, quoted in writing to the Quotation Agent by such Reference Treasury Dealer at 3:30 p.m., New York City time, on the third Business Day preceding such Redemption Date.
"Treasury Rate" means, with respect to any Redemption Date, the rate per annum equal to the semi-annual or equivalent yield to maturity or interpolated (on a day-count basis) of the Comparable Treasury Issue, calculated on the third Business Day preceding such Redemption Date using a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such Redemption Date.
If money sufficient to pay the Redemption Price and accrued and unpaid interest on the principal amount of this Note to be redeemed on the Redemption Date is deposited with the Trustee or Paying Agent on or before the Redemption Date and certain other conditions specified in the Indenture are satisfied, then on or after such date, interest will cease to accrue on the principal amount of this Note called for redemption.
Notice of any redemption will be mailed at least 30 days but not more than 60 days before the Redemption Date to the Holder hereof at its registered address.
Except as provided above, this Note is not redeemable by the Company prior to maturity.
This Note is not subject to any sinking fund.
Upon the occurrence of a Change of Control Repurchase Event, unless the Company has redeemed this Note or the Company has defeased this Security or satisfied and discharged this Note, the Holder of this Note shall have the right to require that the Company purchase all or a portion (such principal amount to be equal to $2,000 or integral multiples of $1,000 in excess thereof), of this Note at a purchase price in cash in an amount equal to l01% of the principal amount thereof, plus accrued but unpaid interest, if any, to, but not including, the date of purchase. Within 30 days following any Change of Control Repurchase Event, the Company shall deliver a notice to each Holder, in accordance with Section 40l(b) of the Supplemental Indenture, with a copy to the Trustee, which notice shall govern the terms of the Change of Control Offer.
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In case an Event of Default shall occur and be continuing, the principal hereof may be declared, and upon such declaration shall become, due and payable, in the manner, with the effect and subject to the conditions provided in the Indenture.
Subject to certain exceptions set forth in the Indenture, (i) the Indenture may be amended with respect to the Notes with the consent of the Holders of at least a majority in principal amount outstanding of the Notes and (ii) any default or noncompliance with any provisions applicable to the Notes may be waived with the consent of the Holders of a majority in principal amount outstanding of the Notes. Subject to certain exceptions set forth in the Indenture, without the consent of any Holder, the Company and the Trustee may amend the Indenture or the Notes to, among other things, cure any ambiguity, defect or inconsistency, or to provide for the assumption by a successor person of the obligations of the Company under the Indenture, or to add additional covenants or surrender any right or power conferred on the Company, or to establish the form or terms of the Notes of any series, or to appoint a successor Trustee or provide for administration of the trust by more than one Trustee, or to add to, delete from or revise the conditions, limitations, and restrictions on the authorized amount, terms or purposes of issue, authentication and delivery of the Notes or to add any additional event of default, or to modify the provisions of the Indenture as shall be necessary to facilitate the defeasance and discharge of the Notes as shall not adversely affect any Holders, or to secure the Notes, or to make provisions with respect to exchange rights of Holders, or to make any change that does not adversely affect the rights of any Holder.
Subject to certain conditions, the Company at any time may terminate some or all of its obligations under the Notes and the Indenture if the Company deposits with the Trustee money or U.S. Government Obligations for the payment of principal, premium, if any, and interest on the Notes to the Maturity Date.
If money for the payment of principal or interest remains unclaimed for two years, the Trustee or Paying Agent shall pay the money back to the Company at its request unless an abandoned property law designates another Person. After any such payment, Holders entitled to the money must look only to the Company and not to the Trustee for payment.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and premium, if any, and interest on this Note at the place, at the respective times, at the rate, and in the coin or currency herein prescribed.
No director, officer, employee or stockholder, as such, of the Company shall have any liability for any obligations of the Company under this Note or the Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. Each Holder, by accepting this Note, waives and releases all such liability. The waiver and release are part of the consideration for the issue of this Note.
This Note and the Indenture shall be governed by and construed in accordance with the law of the State of New York applicable to agreements made or instruments entered into and, in each case, performed in said state.
Ownership of this Note shall be proved by the register for the Notes kept by the Registrar. The Company, the Trustee and any agent of the Company may treat the Person in whose name a Note is registered as the absolute owner thereof for all purposes.
Pursuant to a recommendation promulgated by the Committee on Uniform Securities Identification Procedures ("CUSIP"), the Company has caused a CUSIP number to be printed on this Note and has directed the Trustee to use the CUSIP number as a convenience to Holders. No representation is made as to the correctness of such numbers and reliance may be placed only on the other identification numbers printed on this Note.
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Terms used herein without definition that are defined in the Indenture shall have the meanings assigned to them in the Indenture.
Unless the Certificate of Authentication hereon has been executed by the Trustee under the Indenture referred to herein by the manual signature of one of its authorized officers, or on behalf of the Trustee by the manual signature of an authorized officer of the Trustee's authenticating agent, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed, manually or by facsimile.
Date:
| COX COMMUNICATIONS, INC. | |||
| By: | |||
| Name: | |||
| Title: | |||
| By: | |||
| Name: | |||
| Title: | |||
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CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated therein referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
as Trustee
| By: | ||
| Authorized Signatory | ||
| Dated: | ||
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ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby sell(s) assign(s) and transfer(s) unto
Please insert social security number 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 attorney to transfer said Note of Cox Communications, Inc. on the books of Cox Communications, Inc. 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 this Note in every particular without alteration or enlargement or any change whatsoever. The Signature must be guaranteed by an "eligible guarantor institution meeting the requirements of the Registrar, which requirements include memberships or participation in the Security Transfer Agent Medallion Program ("STAMP") or such other "signature guarantee program" as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934.
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EXHIBIT A-2
[FORM OF FACE OF SECURITY]
[TRANSFER RESTRICTION LEGEND]
[THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT''), OR ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS A NON-U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH THE LAWS APPLICABLE TO SUCH PURCHASER IN THE JURISDICTION IN WHICH SUCH PURCHASE IS MADE AND (2) AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE RESTRICTION TERMINATION DATE") THAT IS 40 DAYS AFTER THE LATER OF THE ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH THE LAWS APPLICABLE TO IT IN THE JURISDICTION IN WHICH SUCH PURCHASE IS MADE, (D) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S, OR REGISTRAR'S, AS APPLICABLE, RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (C) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE FOREGOING CASES, A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE OR REGISTRAR. THIS LEGEND WILL BE REMOVED UPON THE WRITTEN REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE. BY ITS ACQUISITION HEREOF, THE HOLDER HEREOF REPRESENTS THAT IT IS NOT A U.S. PERSON NOR IS IT PURCHASING FOR THE ACCOUNT OF A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT.
THIS GLOBAL NOTE IS A TEMPORARY GLOBAL NOTE FOR PURPOSES OF REGULATION S UNDER THE SECURITIES ACT. NEITHER THIS TEMPORARY GLOBAL NOTE NOR ANY INTEREST HEREIN MAY BE OFFERED, SOLD OR DELIVERED, EXCEPT AS PERMITTED UNDER THE INDENTURE REFERRED TO BELOW.]
[GLOBAL NOTES LEGEND]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
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REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON 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.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS, IN WHOLE BUT NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN ARTICLE TWO OF THE FIFTEENTH SUPPLEMENTAL INDENTURE REFERRED TO ON THE REVERSE HEREOF.]
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| No. R- | PRINCIPAL AMOUNT | |
| CUSIP No. U22018 AS1 | $ | |
COX COMMUNICATIONS, INC.
3.35% Notes due 2026
COX COMMUNICATIONS, INC., a Delaware corporation (hereinafter called the "Company," which term includes any successor corporation under the Indenture referred to below), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of [ ] ($ ) on September 15, 2026 (the "Maturity Date"), unless previously redeemed, and to pay interest thereon from September 13, 2016 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, payable semiannually on March 15 and September 15 of each year (each, an "Interest Payment Date"), commencing March 15, 2017 at the rate of 3.35% per annum, until the principal hereof is paid or duly made available for payment. Interest shall be computed on the basis of a 360-day year of twelve 30-day months. The interest so payable and punctually paid or duly provided for on any Interest Payment Date will, as provided in the Indenture, be paid to the Person in whose name this Note (or one or more predecessor securities) is registered at the close of business on the regular record date for such interest, which shall be March 1 or September 1 (whether or not a Business Day), as the case may be, immediately preceding such Interest Payment Date. Any such interest which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date shall forthwith cease to be payable to the registered Holder hereof on the relevant regular record date by virtue of having been such Holder, and may be paid to the Person in whose name this Note (or one or more predecessor securities) is registered at the close of business on a subsequent special record date (which shall be not more than 15 days and not less than 10 days before the payment date) for the payment of such defaulted interest to be fixed by the Trustee, notice whereof shall be given to the Holders of Notes of this series not less than 10 days prior to such special record date, or may be paid at any time in any other lawful manner, all as more fully provided in such Indenture. If any Interest Payment Date, Redemption Date or the Maturity Date falls on a day that is not a Business Day, the required payment shall be made on the next Business Day as if it were made on the date such payment was due and no interest shall accrue on the amount so payable for the period from and after such Interest Payment Date, Redemption Date or the Maturity Date, as the case may be, to such next Business Day. .Payments of principal, premium, if any, and interest hereunder shall be made in such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts and shall be made immediately available to the Holder (as defined below) hereof.
This Note is one of the duly authorized series of Debt Securities of the Company, designated as the Company's "3.35% Notes due 2026" (the "Notes"), initially limited to an aggregate principal amount of $1,000,000,000, all issued or to be issued under and pursuant to an Indenture dated as of June 27, 1995 (the "Original Indenture"), as supplemented by the Fifteenth Supplemental Indenture dated as of September 13, 2016 (the "Fifteenth Supplemental Indenture" and, together with the Original Indenture, the "Indenture"), duly executed and delivered by the Company to The Bank of New York Mellon Trust Company, N.A, as trustee (hereinafter referred to as the "Trustee"), to which Indenture and all indentures supplemental thereto reference is hereby made for a description of the rights, limitation of rights, obligations, duties and immunities thereunder of the Trustee, the Company and the Holders (the words "Holders" or "Holder" meaning the registered holders or registered holder of the Notes).
Prior to the Par Call Date, this Note will be redeemable at the option of the Company, in whole at any time or in part from time to time, at a Redemption Price equal to the greater of (i) 100% of the principal amount of this Note to be redeemed and (ii) the sum, as determined by the Quotation Agent, of the present values of the principal amount of this Note to be redeemed and the remaining scheduled payments of interest on the principal amount of this Note to be redeemed (assuming that this Note matured on the Par Call Date), exclusive of interest accrued to the Redemption Date, in each case, discounted from their respective scheduled payment dates to the Redemption Date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as defined below) plus 30 basis points, plus accrued and unpaid interest thereon to, but not including, the Redemption Date. On or after the Par Call Date, this Note will be redeemable at the option of the Company, in whole at any time or in part from time to time, at a Redemption Price equal to 100% of the principal amount of this Note being redeemed, plus accrued and unpaid interest thereon to, but not including, the Redemption Date.
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"Comparable Treasury Issue" means, with respect to this Note subject to redemption, the United States Treasury security selected by the Quotation Agent as having an actual or interpolated maturity comparable to the remaining life of this Note to be redeemed (assuming that this Note matured on the Par Call Date) that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity with the remaining life of this Note to be redeemed (assuming, for this purpose, that this Note matured on the Par Call Date).
"Comparable Treasury Price" means, with respect to any Redemption Date, the average of six Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and lowest of such Reference Treasury Dealer Quotations, or, if the Quotation Agent obtains fewer than five such Reference Treasury Dealer Quotations, the average of all such quotations.
"Par Call Date" means June 15, 2026.
"Quotation Agent" means the Reference Treasury Dealer appointed by the Company.
"Reference Treasury Dealer" means, with respect to any Redemption Date, (i) J.P. Morgan Securities LLC, Wells Fargo Securities, LLC and Mizuho Securities USA Inc., and each of their respective successors and (ii) three other nationally recognized investment banking firms (or their respective affiliates) that the Company selects in connection with such Redemption Date, and each of their respective successors; provided, however, that if any of the foregoing shall cease to be a U.S. government securities dealer in the United States (a "Primary Treasury Dealer"), the Company will substitute another Primary Treasury Dealer.
"Reference Treasury Dealer Quotations" means, with respect to each Reference Treasury Dealer and any Redemption Date, the average, as determined by the Quotation Agent, of the bid and asked prices for the Comparable Treasury Issue, expressed in each case as a percentage of its principal amount, quoted in writing to the Quotation Agent by such Reference Treasury Dealer at 3:30 p.m., New York City time, on the third Business Day preceding such Redemption Date.
"Treasury Rate" means, with respect to any Redemption Date, the rate per annum equal to the semi-annual or equivalent yield to maturity or interpolated (on a day-count basis) of the Comparable Treasury Issue, calculated on the third Business Day preceding such Redemption Date using a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such Redemption Date.
If money sufficient to pay the Redemption Price and accrued and unpaid interest on the principal amount of this Note to be redeemed on the Redemption Date is deposited with the Trustee or Paying Agent on or before the Redemption Date and certain other conditions specified in the Indenture are satisfied, then on or after such date, interest will cease to accrue on the principal amount of this Note called for redemption.
Notice of any redemption will be mailed at least 30 days but not more than 60 days before the Redemption Date to the Holder hereof at its registered address.
Except as provided above, this Note is not redeemable by the Company prior to maturity. This Note is not subject to any sinking fund.
Upon the occurrence of a Change of Control Repurchase Event, unless the Company has redeemed this Note or the Company has defeased this Security or satisfied and discharged this Note, the Holder of this Note shall have the right to require that the Company purchase all or a portion (such principal amount to be equal to $2,000 or integral multiples of $1,000 in excess thereof), of this Note at a purchase price in cash in an amount equal to 101% of the principal amount thereof, plus accrued but unpaid interest, if any, to, but not including, the date of purchase. Within 30 days following any Change of Control Repurchase Event, the Company shall deliver a notice to each Holder, in accordance with Section 40l(b) of the Supplemental Indenture, with a copy to the Trustee, which notice shall govern the terms of the Change of Control Offer. Notice of any redemption will be mailed at least 30 days but not more than 60 days before the Redemption Date to the Holder hereof at its registered address.
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In case an Event of Default shall occur and be continuing, the principal hereof may be declared, and upon such declaration shall become, due and payable, in the manner, with the effect and subject to the conditions provided in the Indenture.
Subject to certain exceptions set forth in the Indenture, (i) the Indenture may be amended with respect to the Notes with the consent of the Holders of at least a majority in principal amount outstanding of the Notes and (ii) any default or noncompliance with any provisions applicable to the Notes may be waived with the consent of the Holders of a majority in principal amount outstanding of the Notes. Subject to certain exceptions set forth in the Indenture, without the consent of any Holder, the Company and the Trustee may amend the Indenture or the Notes to, among other things, cure any ambiguity, defect or inconsistency, or to provide for the assumption by a successor person of the obligations of the Company under the Indenture, or to add additional covenants or surrender any right or power conferred on the Company, or to establish the form or terms of the Notes of any series, or to appoint a successor Trustee or provide for administration of the trust by more than one Trustee, or to add to, delete from or revise the conditions, limitations, and restrictions on the authorized amount, terms or purposes of issue, authentication and delivery of the Notes or to add any additional event of default, or to modify the provisions of the Indenture as shall be necessary to facilitate the defeasance and discharge of the Notes as shall not adversely affect any Holders, or to secure the Notes, or to make provisions with respect to exchange rights of Holders, or to make any change that does not adversely affect the rights of any Holder.
Subject to certain conditions, the Company at any time may terminate some or all of its obligations under the Notes and the Indenture if the Company deposits with the Trustee money or U.S. Government Obligations for the payment of principal, premium, if any, and interest on the Notes to the Maturity Date.
If money for the payment of principal or interest remains unclaimed for two years, the Trustee or Paying Agent shall pay the money back to the Company at its request unless an abandoned property law designates another Person. After any such payment, Holders entitled to the money must look only to the Company and not to the Trustee for payment.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and premium, if any, and interest on this Note at the place, at the respective times, at the rate, and in the coin or currency herein prescribed.
No director, officer, employee or stockholder, as such, of the Company shall have any liability for any obligations of the Company under this Note or the Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. Each Holder, by accepting this Note, waives and releases all such liability. The waiver and release are part of the consideration for the issue of this Note.
This Note and the Indenture shall be governed by and construed in accordance with the law of the State of New York applicable to agreements made or instruments entered into and, in each case, performed in said state.
Ownership of this Note shall be proved by the register for the Notes kept by the Registrar. The Company, the Trustee and any agent of the Company may treat the Person in whose name a Note is registered as the absolute owner thereof for all purposes.
Pursuant to a recommendation promulgated by the Committee on Uniform Securities Identification Procedures ("CUSIP"), the Company has caused a CUSIP number to be printed on this Note and has directed the Trustee to use the CUSIP number as a convenience to Holders. No representation is made as to the correctness of such numbers and reliance may be placed only on the other identification numbers printed on this Note.
Terms used herein without definition that are defined in the Indenture shall have the meanings assigned to them in the Indenture.
Unless the Certificate of Authentication hereon has been executed by the Trustee under the Indenture referred to herein by the manual signature of one of its authorized officers, or on behalf of the Trustee by the manual signature of an authorized officer of the Trustee's authenticating agent, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed, manually or by facsimile.
Date:
| COX COMMUNICATIONS, INC. | |||
| By: | |||
| Name: | |||
| Title: | |||
| By: | |||
| Name: | |||
| Title: | |||
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CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated therein referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
as Trustee
| By: | ||
| Authorized Signatory | ||
| Dated: | ||
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ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby sell(s) assign(s) and transfer(s) unto
Please insert social security number 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 attorney to transfer said Note of Cox Communications, Inc. on the books of Cox Communications, Inc. 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 this Note in every particular without alteration or enlargement or any change whatsoever. The Signature must be guaranteed by an "eligible guarantor institution meeting the requirements of the Registrar, which requirements include memberships or participation in the Security Transfer Agent Medallion Program ("STAMP") or such other "signature guarantee program" as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934.
A-2-8
EXHIBIT B-1
Transfer Certificate
In connection with a transfer of any of the $ principal amount of the % Notes due 20 (the "Notes") of Cox Communications, Inc. (the "Company") within the period prior to the expiration of the holding period applicable to the sales thereof under Rule 144 under the Securities Act of 1933, as amended (the "Securities Act") (or any successor provision), the undersigned registered owner of this Note hereby certifies with respect to $ principal amount of the above-captioned securities presented or surrendered on the date hereof (the "Surrendered Notes") for registration of transfer, or for exchange where the securities deliverable upon such exchange are to be registered in a name other than that of the undersigned registered owner (each such transaction being a "transfer"), that such transfer complies with the restrictive legend set forth on the face of the Surrendered Notes for the reason checked below:
| ¨ | The transfer of the Surrendered Notes is made to the Company or any Subsidiary thereof; |
| ¨ | The transfer of the Surrendered Notes complies with Rule 144A under the Securities Act; |
| ¨ | The transfer of the Surrendered Notes is pursuant to a registration statement which has been declared effective under the Securities Act; |
| ¨ | The transfer of the Surrendered Notes is pursuant to an offer and sale to a non-U.S. person that occurs outside the United States within the meaning of Regulation S under the Securities Act and in accordance with the laws applicable to it in the jurisdiction in which such purchase is made; |
| ¨ | The transfer of the Surrendered Notes is pursuant to another available exemption from the registration requirements of the Securities Act. |
and unless the box below is checked, the undersigned confirms that, to the undersigned's knowledge, such Notes are not being transferred to an "affiliate" of the Company as defined in Rule 144 under the Securities Act (an "Affiliate").
| ¨ | The transferee is an Affiliate of the Company. |
| DATE: | ||||
| Signature(s) | ||||
(If the registered owner is a corporation, partnership
or fiduciary, the title of the Person signing on behalf
of such registered owner must be stated.)
B-1-1
EXHIBIT B-2
Form of Letter to be Delivered by Accredited Investors
Cox Communications, Inc.
6205-B Peachtree Dunwoody Road, NE
Atlanta, Georgia 30328
Attention: Treasurer
The Bank of New York Mellon Trust Company, N.A., as Registrar
10161 Centurion Parkway N.
Jacksonville, Florida 32256
Attention: Corporate Trust Office
Dear Sirs:
We are delivering this letter in connection with the proposed transfer of $ principal amount of the % Notes due 20 (the "Notes") of Cox Communications, Inc. (the "Company").
We hereby confirm that:
(i) we are an "accredited investor" within the meaning of Rule 50l(a)(l), (2), (3) or (7) of Regulation D under the Securities Act of 1933, as amended (the "Securities Act"), or an entity in which all of the equity owners are accredited investors within the meaning of Rule 501(a)(l), (2), (3) or (7) of Regulation D under the Securities Act (an "Institutional Accredited Investor'');
(ii) (A) the purchase of Notes by us is for our own account or for the account of one or more other Institutional Accredited Investors or as fiduciary for the account of one or more trusts, each of which is an "accredited investor" within the meaning of Rule 50l(a)(7) under the Securities Act and for each of which we exercise sole investment discretion or (B) we are a "bank," within the meaning of Section 3(a)(2) of the Securities Act, or a "savings and loan association" or other institution described in Section 3(a)(5)(A) of the Securities Act that is acquiring Notes as fiduciary for the account of one or more institutions for which we exercise sole investment discretion;
(iii) we will acquire Notes having a minimum principal amount of not less than $100,000 for our own account or for any separate account for which we are acting;
(iv) we have such knowledge and experience in financial and business matters that we are capable of evaluating the merits and risks of purchasing Notes; and
(v) we are not acquiring Notes with a view to distribution thereof or with any present intention of offering or selling Notes, except as permitted below; provided that the disposition of our property and property of any accounts for which we are acting as fiduciary shall remain at all times within our control.
B-2-1
We understand that the Notes were originally offered and sold in a transaction not involving any public offering within the United States within the meaning of the Securities Act and that the Notes have not been registered under the Securities Act, and we agree, on our own behalf and on behalf of each account for which we acquire any Notes, that we will offer, sell or otherwise transfer such Notes, or any beneficial interest therein, prior to the end of the period (the "Resale Restriction Period") from the date of original issuance until (a) the date that is one year after the later of (x) the date of the original issuance of the Notes or (y) the last day on which the Issuer or any of its Affiliates was the owner of the Notes, and (b) such later date, if any, as may be required by applicable laws only:
(1) to the Company or any Subsidiary thereof, or
(2) for as long as the Notes are eligible for resale pursuant to Rule 144A, to a person we reasonably believe is a "qualified institutional buyer" (as defined in Rule 144A under the Securities Act) that purchases for its own account or for the account of a qualified institutional buyer to which notice is given that the transfer is being made in reliance on Rule 144A, or
(3) pursuant to offers and sales to non-U.S. persons that occur outside the United States within the meaning of Regulation S under the Securities Act and in accordance with the laws applicable to us in the jurisdiction in which such purchase is made, or
(4) pursuant to a registration statement which has been declared effective under the Securities Act, or
(5) pursuant to another available exemption from the registration requirements of the Securities Act.
We acknowledge that the Company, others and you will rely upon our confirmations, acknowledgments and agreements set forth herein, and we agree to notify you promptly in writing if any of our representations or warranties herein ceases to be accurate and complete.
B-2-2
THIS LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK.
| (Name of Purchaser) | ||
| By: | ||
| Name: | ||
| Title: | ||
| Address: | ||
B-2-3
Exhibit 4.14
EXECUTION VERSION
COX COMMUNICATIONS, INC.
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
as Trustee
SIXTEENTH SUPPLEMENTAL INDENTURE
Dated as of August 7, 2017
Supplement to Indenture
Dated as of June 27, 1995
Creating three series of Debt Securities designated
3.150% Notes due 2024
3.500% Notes due 2027
4.600% Notes due 2047
SIXTEENTH SUPPLEMENTAL INDENTURE, dated as of the 7th day of August, 2017, between COX COMMUNICATIONS, INC., a corporation existing under the laws of the State of Delaware, having its principal executive office located at 6205-B Peachtree Dunwoody Road, NE, Atlanta, Georgia 30328 (the “Company”), and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., a national banking association, having a designated corporate trust office located at 200 Ashford Center North, Suite 550, Atlanta, Georgia 30338, as trustee (the “Trustee”);
WHEREAS, the Company has heretofore executed and delivered to the Trustee an Indenture, dated as of June 27, 1995 (the “Original Indenture” and, as amended by this Supplemental Indenture, the “Indenture”), providing for the issuance by the Company from time to time of its debentures, notes, bonds or other evidences of indebtedness (in the Original Indenture and herein called the “Debt Securities”), unlimited as to principal amount, to be issued in one or more series;
WHEREAS, the Company, in the exercise of the power and authority conferred upon and reserved to it under the provisions of the Original Indenture and pursuant to appropriate resolutions of the Board of Directors, has duly determined to make, execute and deliver to the Trustee this Supplemental Indenture to the Original Indenture in order to establish the form and terms of, and to provide for the creation and issuance of, three new series of Debt Securities designated as the “3.150% Notes due 2024” in the initial aggregate principal amount of $1,000,000,000 (the “2024 Notes”), the “3.500% Notes due 2027” in the initial aggregate principal amount of $1,000,000,000 (the “2027 Notes”) and the “4.600% Notes due 2047” in the initial aggregate principal amount of $600,000,000 (the “2047 Notes” and, together with the 2024 Notes and the 2027 Notes, the “Notes”);
WHEREAS, Section 9.01 of the Original Indenture provides, among other things, that the Company and the Trustee, at any time and from time to time, without the consent of any Holders, may enter into an indenture supplemental to the Original Indenture to establish the form or terms of Debt Securities of any series as permitted by Sections 2.01 and 2.03 of the Original Indenture;
WHEREAS, all things necessary to make the Notes, when executed by the Company and authenticated and delivered by the Trustee and issued upon the terms and subject to the conditions hereinafter and in the Original Indenture set forth against payment therefor, the valid, binding and legal obligations of the Company and to make this Supplemental Indenture a valid, binding and legal agreement of the Company, have been done;
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH that, in order to establish the form and terms of the series of Debt Securities designated as the “3.150% Notes due 2024”, the “3.500% Notes due 2027” and the “4.600% Notes due 2047” and for and in consideration of the premises and of the covenants contained in the Original Indenture and in this Supplemental Indenture and for other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of the Notes, as follows:
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ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101 Definitions. For all purposes of the Original Indenture and this Supplemental Indenture relating to each series of Debt Securities (consisting of the Notes) created hereby, except as otherwise expressly provided or unless the context otherwise requires, the terms defined in this Article have the meanings assigned to them in this Article. Each capitalized term that is used in the Original Indenture and this Supplemental Indenture but not defined herein shall have the meaning specified in the Original Indenture.
“Agent Members” has the meaning specified in Section 209(e)(v) of this Supplemental Indenture.
“Applicable Procedures” means, with respect to any transfer or transaction involving a Global Note or beneficial interest therein, the rules and procedures of the Depositary for such Note, in each case to the extent applicable to such transaction and as in effect from time to time.
“Below Investment Grade Downgrade Event” means, with respect to any series of Notes, the rating on such Notes is lowered in respect of a Change of Control and such Notes are rated below an Investment Grade Rating by each of the Rating Agencies on any date from the first public announcement by the Company of any Change of Control (or pending Change of Control) and ending 60 days following consummation of such Change of Control (which period shall be extended until the ratings are announced if, during such 60-day period, the rating of such Notes is under publicly announced consideration for possible downgrade by each of the Rating Agencies); provided that a Below Investment Grade Downgrade Event otherwise arising by virtue of a particular reduction in rating shall not be deemed to have occurred in respect of a particular Change of Control (and thus shall not be deemed a Below Investment Grade Downgrade Event for purposes of the definition of Change of Control Repurchase Event hereunder) if the Rating Agencies making the reduction in rating to which this definition would otherwise apply do not announce or publicly confirm or inform the Company in writing at its request that the reduction was the result, in whole or in part, of any event or circumstance comprised of or arising as a result of, or in respect of, the applicable Change of Control (whether or not the applicable Change of Control shall have occurred at the time of the Below Investment Grade Downgrade Event). The Company shall request the Rating Agencies to make such confirmation in connection with any Change of Control and shall promptly certify to the Trustee as to whether or not such confirmation has been received or denied.
“Business Day” means any day other than a Saturday, a Sunday or a legal holiday or a day on which banking institutions or trust companies in The City of New York are authorized or obligated by law to close.
“Capital Stock” of any Person means any and all shares, interests, participations, rights in or other equivalents (however designated) of such Person’s capital stock, other equity interests whether now outstanding or issued after the Issue Date, partnership interests (whether general or limited), limited liability company interests, any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person, including any preferred stock, and any rights (other than debt securities convertible into, or exchangeable for or valued by reference to, Capital Stock until and unless any such debt security is converted into Capital Stock), warrants or options exchangeable for or convertible into such Capital Stock.
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“cash” means U.S. legal tender.
“Certificated Notes” means the Notes issued in certificated, registered form without interest coupons and not required to bear the Legend set forth in Section 207(a)(ii) of this Supplemental Indenture.
“Change of Control” means the occurrence of any of the following events:
(1) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act), other than one or more Permitted Holders, becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that a Person shall be deemed to have beneficial ownership of all shares that such Person has the right to acquire, whether such right is exercisable immediately or only after the passage of time), directly or indirectly, of more than 50% of the total outstanding Voting Stock of the Company;
(2) the Company sells, assigns, conveys, transfers, leases or otherwise disposes of (other than by way of merger or consolidation) all or substantially all of its and its Subsidiaries’ assets taken as a whole to any Person, other than any such transaction where:
| (A) | the transferee is a Person controlled, directly or indirectly, by one or more Permitted Holders; or |
| (B) | following such transaction, each transferee becomes an obligor in respect of the Notes and either (i) each transferee is or becomes a Subsidiary of the transferor of such assets or (ii) the holders of the Voting Stock of the Company immediately prior to such transaction own, directly or indirectly, not less than a majority of the Voting Stock of the transferee immediately after such transaction; |
(3) the Company consolidates with or merges with or into any Person or any Person consolidates with or merges into or with the Company, in any such event pursuant to a transaction in which the outstanding Voting Stock of the Company is converted into or exchanged for cash, securities or other property, other than any such transaction where:
| (A) | the surviving corporation is a Person controlled, directly or indirectly, by one or more Permitted Holders; or |
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| (B) | (i) the outstanding Voting Stock of the Company is changed into or exchanged for Voting Stock of the surviving corporation (or any direct or indirect parent company of the surviving corporation) and (ii) the holders of the Voting Stock of the Company immediately prior to such transaction own, directly or indirectly, not less than a majority of the Voting Stock of the surviving corporation immediately after such transaction; or |
(4) the adoption of a plan relating to the liquidation or dissolution of the Company.
Notwithstanding the foregoing, a transaction will not be deemed to involve a Change of Control if (i) Cox becomes a direct or indirect wholly owned subsidiary of a holding company and (ii) the direct or indirect holders of the Voting Stock of Cox immediately prior to such transaction own, directly or indirectly, at least a majority of the Voting Stock of such holding company.
“Change of Control Repurchase Event” means, with respect to any series of Notes, the occurrence of a Change of Control together with a Below Investment Grade Downgrade Event with respect to such series of Notes. Notwithstanding the foregoing, no Change of Control Repurchase Event will be deemed to have occurred in connection with any particular Change of Control unless and until such Change of Control has actually been consummated.
“Clearstream” means Clearstream Banking, S.A. (formerly Cedelbank).
“Corporate Trust Office” means 200 Ashford Center North, Suite 550, Atlanta, Georgia 30338.
“Cox Descendants” means the lineal descendants of Governor James M. Cox.
“Cox Family Charities”means charitable organizations of which Cox Family Individuals constitute at least a majority of the trustees, members or directors thereof.
“Cox Family Individuals” means (a) the Cox Descendants and (b) the spouses and surviving spouses of Cox Descendants.
“Cox Family Members”means (a) Cox Family Individuals, (b) Cox Family Trusts, (c) Cox Family Charities or (d) corporations, partnerships, limited partnerships, limited liability companies or any other Person beneficially owned in whole or in part by one or more Cox Family Individuals or Cox Family Trusts or Cox Family Charities;provided that, with respect to clauses (b) and (d), in the case of a Cox Family Trust, a majority of the trustees are Cox Family Individuals, in the case of a general or limited partnership, Cox Family Individuals own, directly or indirectly, more than 50% of the interests or general partner interests, in the case of a limited liability company, Cox Family Individuals hold, directly or indirectly, more than 50% of the vote of the managers, and in the case of any other Person, one or more Cox Family Individuals is the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of more than 50% of the Voting Stock, measured by voting power rather than number of shares, of such Person.
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“Cox Family Trusts” means trusts established by or for the benefit of any one or more Cox Family Individuals.
“Debt Securities” has the meaning specified in the first recital hereof.
“Depositary” means, with respect to the Notes issuable in whole or in part in global form, DTC and any nominee thereof, until a successor shall have been appointed and become such pursuant to the applicable provisions of the Indenture, and thereafter “Depositary” shall mean or include such successor and any nominee thereof.
“Distribution Compliance Period” means the 40-day distribution compliance period as defined in Regulation S, or such later date, if any, as may be required by applicable laws.
“DTC” means The Depository Trust Company.
“Electronic Means” shall mean the following communications methods: S.W.I.F.T., e-mail, facsimile transmission, secure electronic transmission containing applicable authorization codes, passwords and/or authentication keys issued by the Trustee, or another method or system specified by the Trustee as available for use in connection with its services hereunder.
“Euroclear” means the Euroclear Bank SA/NV.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Fitch” means Fitch Ratings, Inc. or any successor to the rating agency business thereof.
“Global Note” means a Note issued in global form, bearing the legends set forth in Section 207(a)(ii) of this Supplemental Indenture, and deposited with or on behalf of the Depositary.
“Holder” and “Noteholder,” in the case of any Note, means the Person in whose name such Note is registered in the Debt Security Register.
“Institutional Accredited Investor” means an institutional “accredited investor” as defined in Rule 501(a)(1), (2), (3) and (7) under the Securities Act.
“Interest Payment Date,” in respect of any Note, has the meaning assigned to it in such Note.
“Investment Grade Rating” means (a) with respect to Moody’s, a rating equal to or higher than Baa3 (or the equivalent), and (b) with respect to S&P and Fitch, a rating equal to or higher than BBB- (or the equivalent) (or, in each case, if such Rating Agency ceases to rate the Notes for reasons outside of the Company’s control, the equivalent investment grade credit rating from any Rating Agency selected by the Company as a replacement Rating Agency).
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“Issue Date” means August 7, 2017.
“Legend” means the Transfer Restriction Legend as defined in Section 207(c) of this Supplemental Indenture.
“Moody’s” means Moody’s Investors Service, Inc. or any successor to the rating agency business thereof.
“Notes” has the meaning specified in the recitals hereof.
“Permitted Holders” means (a) the Cox Family Members, (b) Cox Enterprises, Inc. and its affiliates, including any successor Person to Cox Enterprises, Inc. that owns, directly or indirectly, 100% of the Capital Stock of the Company and such successor Person’s affiliates, and (c) any “group” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act) of the foregoing with respect to which any such Persons exercise a majority of voting power.
“Purchase Agreement” means the Purchase Agreement, dated July 24, 2017, among the Company and J.P. Morgan Securities LLC, RBC Capital Markets, LLC and Wells Fargo Securities, LLC, acting as representatives on behalf of the Initial Purchasers (as defined therein).
“Qualified Institutional Buyer” has the meaning specified in Rule 144A.
“Rating Agencies” means:
| (1) | S&P; |
| (2) | Moody’s; and |
| (3) | Fitch; |
provided, that if S&P, Moody’s or Fitch or all three shall not make a rating of the Notes of any series publicly available, a “nationally recognized statistical rating organization” within the meaning of Section 3(a)(62) of the Exchange Act, selected by the Company, which shall be substituted for S&P, Moody’s or Fitch or all three, as the case may be.
“Redemption Date”, with respect to any Note or portion thereof to be redeemed, means the date fixed for redemption in accordance with the terms of such Note and Article III of the Original Indenture.
“Redemption Price”, with respect to any Note or portion thereof to be redeemed, means the price at which it is to be redeemed as determined in accordance with the terms of the applicable Note and Article III of the Original Indenture.
“Regulation S” means Regulation S under the Securities Act.
“Regulation S Global Note” means a Regulation S Temporary Global Note or Regulation S Permanent Global Note, as applicable.
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“Regulation S Permanent Global Note” means a permanent Global Note in the form of the Note attached hereto as Exhibits A-2(i), A-2(ii) or A-2(iii), as applicable, and that is deposited with and registered in the name of the Depositary, issued in a denomination equal to the outstanding principal amount of the Regulation S Temporary Global Note upon expiration of the Distribution Compliance Period.
“Regulation S Temporary Global Note” means a temporary Global Note in the form of the Note attached hereto as Exhibit A-2(i), A-2(ii) or A-2(iii), as applicable, and that is deposited with and registered in the name of the Depositary, representing Notes sold in offshore transactions in reliance on Regulation S.
“Resale Restriction Termination Date” means (1) in the case of U.S. Global Notes, the date that is one year after the later of (a) the Issue Date and (b) the last date on which the Company or any Affiliate of the Company was the owner of such Notes or, in the case of Regulation S Notes, the date that is 40 days after the later of (a) the Issue Date and (b) the last date on which the Company or any Affiliate of the Company was the owner of such Notes and (2) such later date, if any, as may be required by applicable laws.
“Restricted Note” means a Note required to bear the Transfer Restriction Legend pursuant to Section 207(c) of this Supplemental Indenture and set forth on the forms of Notes attached as Exhibits A-l(i), A-l(ii), A-l(iii), A-2(i), A-2(ii) or A-2(iii), as applicable, to this Supplemental Indenture.
“Rule 144A” means Rule 144A under the Securities Act (or any successor provision), as it may be amended from time to time.
“S&P” means S&P Global Ratings, a division of S&P Global, Inc., or any successor to the rating agency business thereof.
“Securities Act” means the Securities Act of 1933, as amended.
“Supplemental Indenture” means this Sixteenth Supplemental Indenture.
“Transfer Restriction Legend” has the meaning specified in Section 207(c) of this Supplemental Indenture.
“Trustee” has the meaning specified in the first paragraph hereof.
“U.S. Global Note” means a Global Note in the form of the Note attached hereto as Exhibits A-1(i), A-1(ii) or A-1(iii), as applicable, to this Supplemental Indenture, and that is deposited with and registered in the name of the Depositary, representing Notes sold in reliance on Rule 144A.
“Voting Stock” of a Person means Capital Stock of such Person of the class or classes pursuant to which the holders thereof have the general voting power under ordinary circumstances to elect at least a majority of the board of directors, managers or trustees of such Person (irrespective of whether or not at the time Capital Stock of any other class or classes shall have or might have voting power by reason of the happening of any contingency).
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SECTION 102 Section References. Each reference to a particular section set forth in this Supplemental Indenture shall, unless the context otherwise requires, refer to this Supplemental Indenture.
SECTION 103 Effect of Supplemental Indenture. Except as set forth below and except as expressly amended hereby, the Original Indenture shall continue in full force and effect in accordance with the provisions thereof, and the Original Indenture is in all respects hereby ratified and confirmed. This Supplemental Indenture and all its provisions shall be deemed a part of the Original Indenture in the manner and to the extent herein and therein provided. The Original Indenture and this Supplemental Indenture shall be read, taken and construed as one and the same instrument.
This Supplemental Indenture amends and supplements and, to the extent inconsistent therewith, replaces the provisions of the Original Indenture, to which provisions reference is hereby made. For the avoidance of doubt, the provisions of Section 210 hereof amend Section 6.01 of the Original Indenture as set forth in such Section 210; the provisions of Section 211 hereof amend Section 7.06 of the Original Indenture as set forth in such Section 211; the provisions of Section 212 hereof amend Section 7.07 of the Original Indenture as set forth in such Section 212; the provisions of Section 213 hereof amend Section 7.08 of the Original Indenture as set forth in such Section 213; the provisions of Section 214 hereof amend Section 9.01 of the Original Indenture as set forth in such Section 214; the provisions of Article 3 hereof replace the provisions of Section 5.03 of the Original Indenture in their entirety; the provisions of Section 402 hereof replace the provisions of Section 4.08 of this Original Indenture in their entirety; the provisions of Section 403 hereof replace the provisions of Section 4.09 of the Original Indenture in their entirety; and the provisions of Article 5 hereof amend the provisions of Section 7.02 of the Original Indenture as set forth in such Article 5.
The amendments and supplements to, and replacements of the provisions of, the Original Indenture effected by this Supplemental Indenture shall be applicable only with respect to, and govern the terms of, the Debt Securities issued pursuant to this Supplemental Indenture, and shall not apply to any other Debt Securities that have been or may be issued under the Original Indenture unless a supplemental indenture with respect to such other Debt Securities specifically incorporates such amendments, supplements and replacements.
The provisions of Article XI of the Original Indenture shall apply to the Notes.
ARTICLE 2
THE NOTES
SECTION 201 Title of the Notes. The 2024 Notes, 2027 Notes and 2047 Notes shall be known and designated as the “3.150% Notes due 2024,” the “3.500% Notes due 2027” and the “4.600% Notes due 2047” of the Company, respectively.
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SECTION 202 Amount. The aggregate principal amount of Notes that may be authenticated and delivered under this Supplemental Indenture is initially limited to $1,000,000,000 for the 2024 Notes, $1,000,000,000 for the 2027 Notes and $600,000,000 for the 2047 Notes, in each case, except for Notes authenticated and delivered upon registration of, transfer of, or exchange for, or in lieu of, other Notes pursuant to Section 2.07, 2.08, 2.09 or 9.04 of the Indenture, or upon repayment in part of any 2024 Note, 2027 Notes or 2047 Note pursuant to Article III of the Original Indenture. The Company may, from time to time, subject to compliance with any other applicable provisions of this Supplemental Indenture but without the consent of the Holders of any series of Notes, create and issue pursuant to this Supplemental Indenture an unlimited principal amount of additional Notes of such series (in excess of any amounts theretofore issued) having the same terms and conditions to those of the other outstanding Notes of such series, except that any such additional Notes (i) may have a different issue date and issue price from other outstanding Notes of such series and (ii) may have a different amount of interest payable on the first Interest Payment Date after issuance than the amount payable on other outstanding Notes of such series.
SECTION 203 Stated Maturity. The Stated Maturity of the 2024 Notes shall be August 15, 2024. The Stated Maturity of the 2027 Notes shall be August 15, 2027. The Stated Maturity of the 2047 Notes shall be August 15, 2047.
SECTION 204 Interest.
(a) The 2024 Notes shall bear cash interest at the rate of 3.150% per annum from August 7, 2017 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, payable semiannually in arrears on February 15 and August 15 of each year, beginning on February 15, 2018, to the Persons in whose names such Notes are registered at the close of business on the immediately preceding February 1 or August 1, as the case may be, whether or not a Business Day. Interest on the Notes will be computed on the basis of a 360-day year of twelve 30-day months.
(b) The 2027 Notes shall bear cash interest at the rate of 3.500% per annum from August 7, 2017 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, payable semiannually in arrears on February 15 and August 15 of each year, beginning on February 15, 2018, to the Persons in whose names such Notes are registered at the close of business on the immediately preceding February 1 or August 1, as the case may be, whether or not a Business Day. Interest on the Notes will be computed on the basis of a 360-day year of twelve 30-day months.
(c) The 2047 Notes shall bear cash interest at the rate of 4.600% per annum from August 7, 2017 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, payable semiannually in arrears on February 15 and August 15 of each year, beginning on February 15, 2018, to the Persons in whose names such Notes are registered at the close of business on the immediately preceding February 1 or August 1, as the case may be, whether or not a Business Day. Interest on the Notes will be computed on the basis of a 360-day year of twelve 30-day months.
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SECTION 205 Payments.
(a) Payments of principal, premium, if any, and interest on the Notes will be made to the Depositary, or its nominee, as the case may be, as the registered owner and holder of the Global Notes representing the Notes. In the event that the Notes are issued in the form of Certificated Notes, payments of principal, premium, if any, and interest thereon will be at the office or agency of the Trustee in the City of New York designated for such purpose;provided that, with respect to definitive Certificated Notes only, payment of interest, other than interest payable at Stated Maturity or upon redemption, may be made at the option of the Company, by the Trustee to the address of the Person entitled as shown on the register for such Debt Securities.
(b) If any Stated Maturity Date, Redemption Date or Interest Payment Date, falls on a day that is not a Business Day, the required payment shall be made on the next Business Day, and no interest shall accrue on the amount so payable for the period between such payment date and the next Business Day.
(c) Payments of principal, premium, if any, and interest on the Notes shall be made in cash or such other coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debt.
SECTION 206 Redemption. Each series of Notes shall be redeemable, in whole or in part, on one or more Redemption Dates at the applicable Redemption Price. If the Redemption Date is not an Interest Payment Date, the amount of the scheduled interest payment on the next succeeding Interest Payment Date will be reduced by the amount of interest accrued to the Redemption Date.
SECTION 207 Forms; Denominations. The Notes shall be Registered Securities. The Global Notes representing the Notes shall be in substantially the forms attached hereto as Exhibits A-l(i), A-l(ii), A-l(iii), A-2(i), A-2(ii) or A-2(iii), as applicable.
The Notes are being offered and sold by the Company pursuant to the Purchase Agreement.
(a) Global Notes. (i) Notes offered and sold in reliance on Rule 144A as provided in the Purchase Agreement shall be issued initially in the form of one or more U.S. Global Notes in definitive fully registered form without interest coupons, deposited on behalf of the subscribers for the Notes represented thereby with the Trustee, as custodian for the Depositary and registered in the name of DTC or a nominee thereof, duly executed by the Company and authenticated by the Trustee as provided in the Indenture. The aggregate principal amount of the U.S. Global Notes may from time to time be increased or decreased by adjustments made on the records of the Trustee and the Depositary as hereinafter provided.
Notes offered and sold in offshore transactions in reliance on Regulation S as provided in the Purchase Agreement shall be issued initially in the form of one or more Regulation S Temporary Global Notes in definitive fully registered form without interest coupons, deposited on behalf of the subscribers for the Notes represented thereby with the Trustee, as custodian for the Depositary, for the accounts of Euroclear and Clearstream and registered in the name of DTC or a nominee thereof, duly executed by the Company and authenticated by the Trustee as hereinafter provided. The Distribution Compliance Period shall be terminated upon the receipt by the Trustee of a written certificate from the Depositary, if available, together with copies of certificates from Euroclear and Clearstream, if available, certifying that they have received certification of non-United States beneficial ownership of 100% of the aggregate principal amount of the Regulation S Temporary Global Note (except to the extent of any beneficial owners thereof who acquired an interest therein during the Restricted Period pursuant to another exemption from registration under the Securities Act and who shall take delivery of a beneficial ownership interest in a U.S. Global Note bearing a Legend, all as contemplated by Section 209(a)(iii) hereof).
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Following the termination of the Distribution Compliance Period, beneficial interests in the Regulation S Temporary Global Note shall be exchanged for beneficial interests in the Regulation S Permanent Global Note pursuant to the Applicable Procedures. Simultaneously with the authentication of the Regulation S Permanent Global Note, the Trustee shall cancel the Regulation S Temporary Global Note. The aggregate principal amount of the Regulation S Temporary Global Note and the Regulation S Permanent Global Note may from time to time be increased or decreased by adjustments made on the records of the Trustee and the Depositary as hereinafter provided.
Each Global Note shall represent such of the outstanding Notes as shall be specified therein and each shall provide that it shall represent the aggregate principal amount of outstanding Notes from time to time endorsed thereon and the aggregate principal amount of outstanding Notes represented thereby may from time to time be reduced to reflect exchanges or redemptions. Any adjustment of the aggregate principal amount of a Global Note representing the Notes to reflect the amount of any decrease in the principal amount of outstanding Notes represented thereby shall be made by the Trustee in accordance with instructions given by the Holder thereof as required by Section 209 hereof and shall be made on the records of the Trustee and the Depositary.
(ii) Book-Entry Provisions. This Section 207(a)(ii) shall apply only to Global Notes.
The Company shall execute and the Trustee shall, in accordance with this Section 207(a)(ii) and Section 2.02 of the Indenture, authenticate and deliver initially one or more Global Notes that (a) shall be registered in the name of the Depositary, (b) shall be delivered by the Trustee to the Depositary or pursuant to the Depositary’s instructions and (c) shall bear legends substantially to the following effect:
“UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON 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.
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“TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS, IN WHOLE BUT NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN ARTICLE TWO OF THE SIXTEENTH SUPPLEMENTAL INDENTURE REFERRED TO ON THE REVERSE HEREOF.”
(b) Certificated Notes. Except as otherwise set forth in this Supplemental Indenture, owners of beneficial interests in Global Notes will not be entitled to receive physical delivery of Certificated Notes. Beneficial interests in a Global Note transferred in accordance with Section 209(a)(ii) to an Institutional Accredited Investor who is not a Qualified Institutional Buyer and beneficial interests in a Global Note transferred to the beneficial holders thereof pursuant to Section 209(e) will be issued in certificated, registered form without interest coupons.
(c) Restrictive Legends. Prior to the Resale Restriction Termination Date, all Global Notes and all Certificated Notes issued in exchange for a beneficial interest in a Global Note shall bear a legend (the “Transfer Restriction Legend”) in substantially the following form, unless such Notes have been sold pursuant to a registration statement that has been declared effective under the Securities Act:
“THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
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“THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS A NON-U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH THE LAWS APPLICABLE TO SUCH PURCHASER IN THE JURISDICTION IN WHICH SUCH PURCHASE IS MADE AND (2) AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) THAT IS, IN THE CASE OF U.S. GLOBAL NOTES: ONE YEAR AND IN THE CASE OF REGULATION S GLOBAL NOTES: 40 DAYS, AFTER THE LATER OF THE ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH THE LAWS APPLICABLE TO IT IN THE TIJRISDICTION IN WHICH SUCH PURCHASE IS MADE, (D) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY’S AND THE TRUSTEE’S, OR REGISTRAR’S, AS APPLICABLE, RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (C) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE FOREGOING CASES, A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE OR REGISTRAR. THIS LEGEND WILL BE REMOVED UPON THE WRITTEN REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE. IN THE CASE OF REGULATIONS GLOBAL NOTES: BY ITS ACQUISITION HEREOF, THE HOLDER HEREOF REPRESENTS THAT IT IS NOT A U.S. PERSON NOR IS IT PURCHASING FOR THE ACCOUNT OF A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT.
“IN THE CASE OF REGULATIONS TEMPORARY GLOBAL NOTES: THIS GLOBAL NOTE IS A TEMPORARY GLOBAL NOTE FOR PURPOSES OF REGULATIONS UNDER THE SECURITIES ACT. NEITHER THIS TEMPORARY GLOBAL NOTE NOR ANY INTEREST HEREIN MAY BE OFFERED, SOLD OR DELIVERED, EXCEPT AS PERMITTED UNDER THE INDENTURE REFERRED TO BELOW.”
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SECTION 208 Transfer and Exchange.
(a) Notwithstanding any provision to the contrary herein, so long as a Global Note remains Outstanding and is held by or on behalf of the Depositary, transfers of such Global Note, in whole or in part, shall be made only in accordance with Section 209 and this Section 208.
(b) Transfers of a Global Note shall be limited to transfers of such Global Note in whole, or in part, to nominees of the Depositary or to a successor of the Depositary or such successor’s nominee.
(c) If Notes are issued upon the transfer, exchange or replacement of Notes subject to restrictions on transfer and bearing a Legend, or if a request is made to remove the Legend on a Note, the Notes so issued shall bear the Legend, or the Legend shall not be removed, as the case may be, unless there is delivered to the Company and the Registrar such satisfactory evidence, which shall include an opinion of counsel, as may be reasonably required by the Company and the Registrar, that neither the Legend nor the restrictions on transfer set forth therein are required to ensure that transfers thereof comply with the provisions of Rule 144A, Rule 144 or Regulation S under the Securities Act, that such Notes are not “restricted” within the meaning of Rule 144 under the Securities Act or that any such exchange or replacement Notes have been issued in a registered transaction under the Securities Act. Upon (i) provision of such satisfactory evidence, or (ii) notification by the Company to the Trustee and the Registrar of the sale or exchange of such Notes pursuant to a registration statement that is effective at the time of such sale, the Trustee, at the written direction of the Company, shall authenticate and deliver a Note that does not bear the Legend. If the Legend is removed from the face of a Note and the Note is subsequently held by an Affiliate of the Company, the Legend shall be reinstated.
The Trustee and the Registrar shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Supplemental Indenture or under applicable law with respect to any transfer of any interest in any Note (including transfers between or among the Depositary’s participants or beneficial owners of interest in any Global Note) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Supplemental Indenture and to examine the same to determine substantial compliance as to form with the express requirements hereof.
SECTION 209 Global Notes.
(a) Notwithstanding any other provisions of this Supplemental Indenture or the Notes, (A) transfers of a Global Note, in whole or in part, shall be made only in accordance with Section 2.07 of the Indenture and Sections 208 and 209(a)(i) below, (B) transfer of a beneficial interest in a Global Note for a Certificated Note shall comply with Section 2.07 of the Indenture and Section 209(a)(ii) below, (C) transfers of a beneficial interest in a Regulation S Global Note for a beneficial interest in a U.S. Global Note shall comply with Section 2.07 of the Indenture and Section 209(a)(iii) below, and (D) transfers of a Certificated Note shall comply with Section 2.07 of the Indenture and Sections 209(a)(iv) and (v) below.
(i) Transfer of Global Note. A Global Note may not be transferred, in whole or in part, to any Person other than the Depositary or a nominee thereof, and no such transfer to any such other Person may be registered; provided that this clause (i) shall not prohibit any transfer of a Note that is issued in exchange for a Global Note but is not itself a Global Note. No transfer of a Note to any Person shall be effective under the Indenture or the Notes unless and until such Note has been registered in the name of such Person. Nothing in this Section 209(a)(i) shall prohibit or render ineffective any transfer of a beneficial interest in a Global Note effected in accordance with the other provisions of this Section 209(a).
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(ii) Restrictions on Transfer of a Beneficial Interest in a Global Note for a Certificated Note. A beneficial interest in a Global Note may not be exchanged for a Certificated Note except upon satisfaction of the requirements set forth below. Upon receipt by the Trustee of a request for transfer of a beneficial interest in a Global Note in accordance with Applicable Procedures for a Certificated Note in the form satisfactory to the Trustee, together with:
(a) so long as the Notes are Restricted Notes, certification, in the form set forth in Exhibit B-1 attached hereto, and, if requested by the Company or the Registrar, certification in the form set forth in Exhibit B-2 attached hereto, that such beneficial interest in the Global Note is being transferred to an Institutional Accredited Investor;
(b) written instructions to the Trustee to make, or direct the Registrar to make, an adjustment on its books and records with respect to such Global Note to reflect a decrease in the aggregate principal amount of the Notes represented by the Global Note, such instructions to contain information regarding the Depositary account to be credited with such decrease; and
(c) if the Company or Registrar so requests, an opinion of counsel or other evidence reasonably satisfactory to them as to compliance with the restrictions set forth in the applicable Legend,
then the Trustee shall cause, or direct the Registrar to cause, in accordance with the standing instructions and procedures existing between the Depositary and the Registrar, the aggregate principal amount of Notes represented by the Global Note to be decreased by the aggregate principal amount of the Certificated Note to be issued, shall issue such Certificated Note and shall debit or cause to be debited to the account of the Person specified in such instructions a beneficial interest in the Global Note equal to the principal amount of the Certificated Note so issued.
(iii) Restrictions on Transfer of Beneficial Interest in a Regulation S Global Note for a Beneficial Interest in a U.S. Global Note.
(a) On or prior to the expiration of the Distribution Compliance Period, a beneficial interest in a Regulation S Global Note may be transferred to a Person who takes delivery in the form of an interest in the corresponding U.S. Global Note only upon receipt by the Trustee of a written certification from the transferor to the effect that such transfer is being made (i)(a) to a Person whom the transferor reasonably believes is a Qualified Institutional Buyer in a transaction meeting the requirements of Rule 144A or (b) pursuant to another exemption from the registration requirements under the Securities Act which is accompanied by an Opinion of Counsel regarding the availability of such exemption and (ii) in accordance with all applicable securities laws of any state of the United States or any other jurisdiction.
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(b) Beneficial interests in the U.S. Global Note may be transferred to a Person who takes delivery in the form of an interest in the Regulation S Global Note, whether before or after the expiration of the Distribution Compliance Period, only if the transferor first delivers to the Trustee a written certificate to the effect that such transfer is being made in accordance with Rule 904 of Regulation Sor Rule 144 (if available).
(iv) Transfer and Exchange of Certificated Notes. When Certificated Notes are presented to the Registrar with a request:
(x) to register the transfer of such Certificated Notes; or
(y) to exchange such Certificated Notes for an equal principal amount of Certificated Notes of other authorized denominations,
the Registrar shall register the transfer or make the exchange as requested if its reasonable requirements for such transaction are met; provided, however, that the Certificated Notes surrendered for transfer or exchange:
(a) shall be duly endorsed or accompanied by a written instrument of transfer in form reasonably satisfactory to the Company and the Registrar, duly executed by the Holder thereof or his attorney duly authorized in writing; and
(b) so long as such Notes are Restricted Notes, such Notes are being transferred or exchanged pursuant to clause (A), (B) or (C) below, and are accompanied by the following additional information and documents, as applicable:
(A) if such Certificated Notes are being delivered to the Registrar by a Holder for registration in the name of such Holder, without transfer, a certification from such Holder to that effect; or
(B) if such Certificated Notes are being transferred to the Company, a certification to that effect; or
(C) if such Certificated Notes are being transferred pursuant to an exemption from registration, (i) a certification to that effect (in the form set forth in Exhibit B-1 and B-2, if applicable) and (ii) if the Company or Registrar so requests, an opinion of counsel or other evidence reasonably satisfactory to them as to the compliance with the restrictions set forth in the Transfer Restriction Legend.
(v) Restrictions on Transfer of a Certificated Note for a Beneficial Interest in a Global Note. A Certificated Note may not be exchanged for a beneficial interest in a Global Note except upon satisfaction of the requirements set forth below.
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Upon receipt by the Trustee of a Certificated Note, duly endorsed or accompanied by appropriate instruments of transfer, in form satisfactory to the Trustee, together with:
(a) so long as the Notes are Restricted Notes, certification, in the form set forth in Exhibit B-1, that such Certificated Note is being transferred to a Qualified Institutional Buyer in accordance with Rule 144A; and
(b) written instructions directing the Trustee to make, or to direct the Registrar to make, an adjustment on its books and records with respect to such Global Note to reflect an increase in the aggregate principal amount of the Notes represented by the Global Note, such instructions to contain information regarding the Depositary account to be credited with such increase,
then the Trustee shall cancel such Certificated Note and cause, or direct the Registrar to cause, in accordance with the standing instructions and procedures existing between the Depositary and the Registrar, the aggregate principal amount of Notes represented by the Global Note to be increased by the aggregate principal amount of the Certificated Note to be exchanged, and shall credit or cause to be credited to the account of the Person specified in such instructions a beneficial interest in the Global Note equal to the principal amount of the Certificated Note so cancelled. If no Global Notes are then Outstanding, the Company shall issue and the Trustee shall authenticate, upon receipt of a Company Order, a new Global Note in the appropriate principal amount.
(b) Subject to the succeeding paragraph, every Note shall be subject to the restrictions on transfer provided in the applicable Legend including the delivery of an opinion of counsel, if so provided. Whenever any Restricted Note is presented or surrendered for registration of transfer or for exchange for a Note registered in a name other than that of the Holder, such Note must be accompanied by a certificate in substantially the form set forth in Exhibit B-1, dated the date of such surrender and signed by the Holder of such Note, as to compliance with such restrictions on transfer. The Registrar shall not be required to accept for such registration of transfer or exchange any Note not so accompanied by a properly completed certificate.
(c) (i) The restrictions imposed by the Transfer Restriction Legend upon the transferability of any Restricted Note shall cease and terminate when such Note has been sold or exchanged pursuant to an effective registration statement under the Securities Act or may be transferred in compliance with Rule 144 under the Securities Act (or any successor provision thereto). Any Note as to which such restrictions on transfer shall have expired in accordance with their terms or shall have terminated may, upon a surrender of such Note for exchange to the Registrar in accordance with the provisions of this Section 209 (accompanied, in the event that such restrictions on transfer have terminated by reason of a transfer in compliance with Rule 144 or any successor provision, by an opinion of counsel having substantial experience in practice under the Securities Act and otherwise reasonably acceptable to the Company, addressed to the Company, the Trustee and the Registrar and in form acceptable to the Company, to the effect that the transfer of such Note has been made in compliance with Rule 144 or such successor provision), be exchanged for a new Note, of like tenor and aggregate principal amount, which shall not bear the Transfer Restriction Legend. The Company shall inform the Trustee of the effective date of any registration statement registering the Notes under the Securities Act. The Trustee shall not be liable for any action taken or omitted to be taken by it in good faith in accordance with the aforementioned opinion of counsel.
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(d) As used in the preceding two paragraphs of this Section 209, the term “transfer” encompasses any sale, pledge, transfer, hypothecation or other disposition of any Note.
(e) The provisions of clauses (i), (ii), (iii), (iv), and (v) below shall apply only to Global Notes:
(i) Notwithstanding any other provisions of the Indenture or the Notes, except as provided in Section 209(a)(ii), a Global Note shall not be exchanged in whole or in part for a Note registered in the name of any Person other than the Depositary or one or more nominees thereof, provided that a Global Note may be exchanged for Certificated Notes registered in the names of any Person designated by the Depositary in the event that (i) the Depositary has notified the Company that it is unwilling or unable to continue as depositary for such Global Note or the Depositary has ceased to be a “clearing agency” registered under the Exchange Act, and a successor Depositary is not appointed by the Company within 90 days or (ii) an Event of Default has occurred and is continuing with respect to the Notes. Any Global Note exchanged pursuant to clause (i) above shall be so exchanged in whole and not in part, and any Global Note exchanged pursuant to clause (ii) above may be exchanged in whole or from time to time in part as directed by the Depositary. Prior to the issuance of Certificated Notes in exchange for any beneficial interests in a Regulation S Global Note, the holder of such beneficial interests shall, as a condition to such exchange, certify in a form satisfactory to the Company that such holder is a non-U.S. person (as that term is defined in Regulation S under the Securities Act) or a U.S. person who purchased such beneficial interest in a transaction that did not require registration under the Securities Act. In the event that Certificated Notes are issued in respect of beneficial interests in a Regulation S Global Note at any time prior to the end of the Distribution Compliance Period (other than in a transaction subject to Rule 144A), the Company shall as promptly as practicable, institute procedures, including appropriate certifications, reasonably designed to ensure that any transfer of such Certificated Notes prior to the end of the Distribution Compliance Period is made only in accordance with the provisions of Regulation S, pursuant to registration under the Securities Act or pursuant to an exemption from such registration.
(ii) Notes issued in exchange for a Global Note or any portion thereof shall be issued in definitive, fully registered form, without interest coupons, shall have an aggregate principal amount equal to that of such Global Note or portion thereof to be so exchanged, shall be registered in such names and be in such authorized denominations as the Depositary shall designate and shall bear the applicable Legend. Any Global Note to be exchanged in whole shall be surrendered by the Depositary to the Trustee, as Registrar. With regard to any Global Note to be exchanged in part, either such Global Note shall be so surrendered for exchange or, if the Trustee is acting as custodian for the Depositary or its nominee with respect to such Global Note, the principal amount thereof shall be reduced, by an amount equal to the portion thereof to be so exchanged, by means of an appropriate adjustment made on the records of the Trustee. Upon any such surrender or adjustment, the Trustee shall authenticate and deliver the Note issuable on such exchange to or upon the order of the Depositary or an authorized representative thereof.
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(iii) Subject to the provisions of clause (v) below, the registered Holder may grant proxies and otherwise authorize any Person, including Agent Members (as defined below) and Persons that may hold interests through Agent Members, to take any action which a Holder is entitled to take under the Indenture or the Notes.
(iv) In the event of the occurrence of any of the events specified in clause (i) above, the Company will promptly make available to the Trustee a reasonable supply of Certificated Notes.
(v) Neither any members of, or participants in, the Depositary (collectively, the “Agent Members”) nor any other Persons on whose behalf Agent Members may act shall have any rights under the Indenture with respect to any Global Note registered in the name of the Depositary or any nominee thereof, or under any such Global Note, and the Depositary or such nominee, as the case may be, may be treated by the Company, the Trustee and any agent of the Company or the Trustee as the absolute owner and holder of such Global Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee or any agent of the Company or the Trustee from giving effect to any written certification, proxy or other authorization furnished by the Depositary or such nominee, as the case may be, or impair, as between the Depositary, its Agent Members and any other Person on whose behalf an Agent Member may act, the operation of customary practices of such Persons governing the exercise of the rights of a Holder of any Note.
SECTION 210 Events of Default. For purposes of this Supplemental Indenture and the Notes issued hereunder, Section 6.01 of the Original Indenture is hereby amended by deleting the clause immediately following subsection (i) in the first sentence of such Section and inserting in its place the following:
then and in each and every case that an Event of Default described in clause (a), (b), (c), (d), (e), (f), (g) (with respect to Restricted Subsidiaries only), (h) (with respect to Restricted Subsidiaries only) or (i) with respect to Debt Securities of that series at the time Outstanding occurs and is continuing, unless the principal of and interest on all the Debt Securities of that series shall have already become due and payable, either the Trustee or the Holders of not less than 25% in aggregate principal amount of the Debt Securities of that series then Outstanding hereunder, by notice in writing to the Company (and to the Trustee if given by Holders), may declare the principal of (or, if the Debt Securities of that series are Original Issue Discount Debt Securities, such portion of the principal amount as may be specified in the terms of that series) and interest on all the Debt Securities of that series to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything in this Indenture or in the Debt Securities or Coupons appertaining thereto of that series contained to the contrary notwithstanding.
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SECTION 211 Compensation and Reimbursement. For purposes of this Supplemental Indenture and the Notes issued hereunder, Section 7.06 of the Original Indenture is hereby amended to be replaced with the following:
The Company covenants and agrees to pay in Dollars to the Trustee such compensation as the Company and the Trustee shall from time to time agree in writing for all services rendered by it hereunder (which shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust), and, except as otherwise expressly provided herein, the Company will pay or reimburse in Dollars the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any of the provisions of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents, attorneys and counsel and of all Persons not regularly in its employ) except any such expense, disbursement or advances as may arise from its negligence or wilful misconduct. The Company also covenants to indemnify in Dollars each of the Trustee (which shall be deemed to include its officers, directors, employees, and agents) or any predecessor Trustee for, and to hold it harmless against, any loss, damage, claim, liability or expense, including the reasonable fees and expenses of counsel, and taxes (other than taxes based upon, measured by or determined by the income of the Trustee) incurred without negligence or wilful misconduct on the part of the Trustee, arising out of or in connection with the acceptance or administration of this trust or trusts hereunder, including the reasonable costs and expenses of defending itself against any claim of liability in connection with the exercise or performance of any of its powers or duties hereunder. The obligations of the Company under this Section 7.06 to compensate and indemnify the Trustee and to pay or reimburse the Trustee for expenses, disbursements and advances shall constitute additional indebtedness hereunder and shall survive the resignation or removal of the Trustee and/or the satisfaction and discharge of this Indenture. The Company and the Holders agree that such additional indebtedness shall be secured by a Lien prior to that of the Debt Securities and Coupons, if any, upon all property and funds held or collected by the Trustee, as such, except funds held in trust for the payment of principal of, and premium, if any, or interest on, particular Debt Securities and Coupons.
SECTION 212 Right of Trustee to Rely on an Officers’ Certificate Where No Other Evidence Specifically Prescribed. With respect to the Notes, Section 7.07 of the Original Indenture is hereby amended to be replaced with the following:
Except as otherwise provided in Section 7.01, whenever in the administration of the provisions of this Indenture the Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering or omitting any action hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) may, be deemed to be conclusively proved and established by an Officers’ Certificate delivered to the Trustee, and such certificate shall be full warrant to the Trustee for any action taken, suffered or omitted by it under the provisions of this Indenture.
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SECTION 213 Separate Trustee; Replacement of Trustee. With respect to the Notes, Section 7.08 of the Original Indenture is hereby amended to be replaced with the following:
The Company may, but need not, appoint a separate Trustee for any one or more series of Debt Securities. The Trustee may resign with respect to one or more or all series of Debt Securities at any time by giving 30 days’ notice to the Company. The Holders of a majority in principal amount of the Debt Securities of a particular series may remove the Trustee for such series and only such series by so notifying the Trustee and may appoint a successor Trustee with 30 days’ notice. The Company shall remove the Trustee with 30 days’ notice if:
| (1) | the Trustee fails to comply with Section 7.10; |
| (2) | the Trustee is adjudged bankrupt or insolvent; | |
| (3) | a receiver or other public officer takes charge of the Trustee or its property; or |
| (4) | the Trustee otherwise becomes incapable of acting. |
If the Trustee resigns, is removed by the Company or by the Holders of a majority in principal amount of the Debt Securities of a particular series and such Holders do not reasonably promptly appoint a successor Trustee, or if a vacancy exists in the office of Trustee for any reason (the Trustee in such event being referred to herein as the retiring Trustee), the Company shall promptly appoint a successor Trustee. No resignation or removal of the Trustee and no appointment of a successor Trustee shall become effective until the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of this Section 7.08.
A successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Company. Thereupon the resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee under this Indenture. The successor Trustee shall mail a notice of its succession to Holders of Debt Securities of each applicable series. The retiring Trustee shall promptly transfer all property held by it as Trustee to the successor Trustee, subject to the Lien provided for in Section 7.06.
If a successor Trustee does not take office within 30 days after the retiring Trustee resigns or is removed, the retiring Trustee or the Holders of 25% in principal amount of the Debt Securities of any applicable series may petition, at the expense of the Company, any court of competent jurisdiction for the appointment of a successor Trustee for the Debt Securities of such series.
If the Trustee fails to comply with Section 7.10, any Holder of Debt Securities of any applicable series may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee for the Debt Securities of such series.
Notwithstanding the replacement of the Trustee pursuant to this Section 7.08, the Company’s obligations under Section 7.06 shall continue for the benefit of the retiring Trustee.
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In the case of the appointment hereunder of a separate or successor trustee with respect to the Debt Securities of one or more series, the Company, any retiring Trustee and each successor or separate Trustee with respect to the Debt Securities of any applicable series shall execute and deliver an Indenture Supplement hereto (1) which shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of any retiring Trustee with respect to the Debt Securities of any series as to which any such retiring Trustee is not retiring shall continue to be vested in such retiring Trustee and (2) that shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trustee hereunder by more than one trustee, it being understood that nothing herein or in such supplemental Indenture shall constitute such Trustees co-trustees of the same trust and that each such separate, retiring or successor Trustee shall be Trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee.
SECTION 214 With respect to the Notes, Section 9.01(f) of the Original Indenture is hereby deleted in its entirety and replaced with “[Reserved]” in lieu thereof.
ARTICLE 3
REPORTS BY THE COMPANY
So long as any of the Debt Securities are “restricted securities” within the meaning of Rule 144(a)(3) under the Securities Act, the Company will, during any period in which it is not subject to Sections 13 or 15(d) of the Exchange Act or it is not exempt from such reporting requirements pursuant to and in compliance with Rule 12g3-2(b) under the Exchange Act, provide to each Holder of Notes and to each prospective purchaser (as designated by such Holder) of Notes, upon the request of such Holder or prospective purchaser, any information required to be provided by Rule 144A(d)(4) under the Securities Act.
ARTICLE 4
ADDITIONAL COVENANTS
SECTION 401 Purchase of Notes Upon a Change of Control Repurchase Event.
(a) If a Change of Control Repurchase Event occurs with respect to any series of Notes, each Holder of the Notes of such series will have the right to require that the Company purchase all or any part (in denominations of $2,000 and integral multiples of $1,000 in excess thereof) of such Holder’s Notes of such series pursuant to a Change of Control offer (a “Change of Control Offer”) on the terms set forth in this Supplemental Indenture, except that the Company shall not be obligated to repurchase the Notes of such series pursuant to this Section 401 in the event that the Company has exercised the right to redeem all of the Notes of such series as described in Section 206. In the Change of Control Offer with respect to any series of Notes, the Company will offer to purchase all of the Notes of such series at a purchase price (the “Change of Control Purchase Price”) in cash in an amount equal to 101% of the principal amount of such series of Notes, plus accrued but unpaid interest, if any, to, but not including, the date of purchase (the “Change of Control Purchase Date”) (subject to the rights of Holders of record on the relevant record date to receive interest due on the relevant Interest Payment Date if such Notes have not been redeemed prior to such record date).
22
(b) Within 30 days after any Change of Control Repurchase Event with respect to any series of Notes or, at the Company’s option, prior to such Change of Control but after the public announcement of such pending Change of Control, the Company must notify the Trustee of such series of Notes and give written notice of the Change of Control Repurchase Event to the Trustee and each Holder of Notes of such series, by first-class mail or delivered electronically if held by DTC, to the address of such Holder appearing in the security register or otherwise in accordance with the procedures of DTC. The notice must state, among other things:
(1) that a Change of Control Repurchase Event has occurred or may occur with respect to such series of Notes and the date of such event;
(2) the purchase price and the purchase date which shall be fixed by the Company on a Business Day no earlier than 30 days nor later than 60 days from the date the notice is mailed or delivered electronically, other than as may be required by law;
(3) that any Note not tendered will continue to accrue interest;
(4) that, unless the Company defaults in the payment of the Change of Control Purchase Price, any Notes accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest after the Change of Control Purchase Date; and
(5) other procedures that a Holder of Notes must follow to accept a Change of Control Offer or to withdraw acceptance of the Change of Control Offer.
In addition, the notice, if sent prior to the date of the consummation of the Change of Control, will state that the Change of Control Offer is conditioned on the Change of Control being consummated on or prior to the Change of Control Purchase Date.
(c) If Holders of not less than 90% in aggregate principal amount of the outstanding Notes of an applicable series validly tender and do not withdraw such Notes in a Change of Control Offer and the Company, or any third party making a Change of Control Offer in lieu of the Company, as described in clause (d) below, purchases all of the Notes of such series validly tendered and not withdrawn by such Holders, the Company will have the right, upon not less than 30 nor more than 60 days’ prior notice, with such notice given not more than 30 days following the Change of Control Purchase Date, to redeem all Notes of such series that remain Outstanding following such purchase at a redemption price in cash equal to the Change of Control Purchase Price plus, to the extent not included in the Change of Control Purchase Price, accrued and unpaid interest, if any, on the Notes of such series that remain Outstanding to, but not including, the date of redemption (subject to the rights of Holders of record on relevant record dates to receive interest due on the relevant Interest Payment Date).
23
(d) The Company will comply with Rule 14e-l under the Exchange Act, and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control Repurchase Event. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 401, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Section 401 by virtue of its compliance with such securities laws and regulations. The Company will not be required to make a Change of Control Offer upon a Change of Control Repurchase Event with respect to any series of Notes if a third party makes the Change of Control Offer with respect to such series of Notes in the manner, at the times and otherwise in compliance with the requirements described in this Supplemental Indenture applicable to a Change of Control Offer made by the Company and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer.
(e) On the Change of Control Purchase Date with respect to any series of Notes, the Company will, to the extent permitted by law:
(1) accept for payment all Notes of such series or portions thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Depositary or the Trustee, as applicable, an amount equal to the aggregate Change of Control Purchase Price in respect of all Notes of such series or portions thereof so tendered; and
(3) deliver, or cause to be delivered, to the Trustee for cancellation of the Notes of such series so accepted together with an Officers’ Certificate to the Trustee stating that such Notes or portions thereof have been tendered to and purchased by the Company.
SECTION 402 Limitation on Liens. With respect to the Notes, Section 4.08 of the Original Indenture is hereby amended to be replaced with the following:
As long as any Notes of any series remain Outstanding, the Company will not, and will not permit any Restricted Subsidiary to, create or incur any Lien (other than Permitted Liens) on Restricted Property to secure the payment of Indebtedness of the Company or any Restricted Subsidiary if immediately after the creation or incurrence of such Lien, the aggregate outstanding principal amount of all Indebtedness of the Company and the Restricted Subsidiaries that is secured by Liens (other than Permitted Liens) on Restricted Property would exceed the greater of (i) $1,100,000,000 or (ii) 15% of the aggregate outstanding principal amount of all Indebtedness of the Company and the Restricted Subsidiaries (whether or not so secured), unless effective provision is made whereby the Notes of such series (together with, if the Company shall so determine, any other Indebtedness ranking equally with the Notes of such series, whether then existing or thereafter created) are secured equally and ratably with (or prior to) such Indebtedness (but only for so long as such Indebtedness is so secured).
24
SECTION 403 Limitation on Indebtedness of Restricted Subsidiaries. For purposes of this Supplemental Indenture and the Notes issued hereunder, Section 4.09 of the Original Indenture is hereby amended to be replaced with the following:
As long as any Notes of any series remain Outstanding, the Company will not permit any Restricted Subsidiary to incur any Indebtedness if immediately after the incurrence of such Indebtedness, the aggregate outstanding principal amount of all Indebtedness of the Restricted Subsidiaries would exceed the greater of (i) $1,100,000,000 or (ii) 15% of the aggregate outstanding principal amount of all Indebtedness of the Company and the Restricted Subsidiaries; provided that in any event, a Restricted Subsidiary may incur Indebtedness to extend, renew or replace Indebtedness of such Restricted Subsidiary to the extent that the principal amount of the Indebtedness so incurred does not exceed the principal amount of the Indebtedness extended, renewed or replaced thereby immediately prior to such extension, renewal or replacement plus any premium, accrued and unpaid interest or capitalized interest payable thereon.
ARTICLE 5
MISCELLANEOUS PROVISIONS
The Trustee makes no undertaking or representations in respect of, and shall not be responsible in any manner whatsoever for and in respect of, the validity or sufficiency of this Supplemental Indenture or the proper authorization or the due execution hereof by the Company or for or in respect of the recitals and statements contained herein, all of which recitals and statements are made solely by the Company.
The Trustee (which shall be deemed to include the Paying Agent when the Trustee is also acting as a Paying Agent) shall have the right to accept and act upon instructions, including funds transfer instructions (“Instructions”) given pursuant to this Indenture and delivered using Electronic Means (as defined above); provided, however, that the Company shall provide to the Trustee an incumbency certificate listing officers with the authority to provide such Instructions (“Authorized Officers”) and containing specimen signatures of such Authorized Officers, which incumbency certificate shall be amended by the Company whenever a person is to be added or deleted from the listing. If the Company elects to give the Trustee Instructions using Electronic Means and the Trustee in its discretion elects to act upon such Instructions, the Trustee’s understanding of such Instructions shall be deemed controlling. The Company understands and agrees that the Trustee cannot determine the identity of the actual sender of such Instructions and that the Trustee shall conclusively presume that directions that purport to have been sent by an Authorized Officer listed on the incumbency certificate provided to the Trustee have been sent by such Authorized Officer. The Company shall be responsible for ensuring that only Authorized Officers transmit such Instructions to the Trustee and that the Company and all Authorized Officers are solely responsible to safeguard the use and confidentiality of applicable user and authorization codes, passwords and/or authentication keys upon receipt by the Company. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such Instructions notwithstanding such directions conflict or are inconsistent with a subsequent written instruction. The Company agrees: (i) to assume all risks arising out of the use of Electronic Means to submit Instructions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized Instructions, and the risk of interception and misuse by third parties; (ii) that it is fully informed of the protections and risks associated with the various methods of transmitting Instructions to the Trustee and that there may be more secure methods of transmitting Instructions than the method(s) selected by the Company; (iii) that the security procedures (if any) to be followed in connection with its transmission of Instructions provide to it a commercially reasonable degree of protection in light of its particular needs and circumstances; and (iv) to notify the Trustee immediately upon learning of any compromise or unauthorized use of the security procedures.
25
For purposes of this Supplemental Indenture and the Notes, Section 7.02 of the Original Indenture is hereby amended to include the following additional rights of the Trustee:
(i) in no event shall the Trustee be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action;
(j) in no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances;
(k) the Trustee shall not be deemed to have notice of any Default or Event of Default unless a Responsible Officer of the Trustee has actual written notice thereof at the designated Corporate Trust Office of the Trustee, and such notice references the Notes and this Indenture;
(l) the rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder;
(m) the Trustee may require that the Company deliver a certificate setting forth the names of individuals, and their titles and direct-dial telephone numbers, of officers authorized at such time to take specified actions pursuant to this Indenture;
(n) the Trustee shall not be liable for errors in judgment made in good faith unless it is proved that the Trustee was grossly negligent in ascertaining the pertinent facts; and
(o) the Trustee may act at the direction of requisite Holders without liability.
This Supplemental Indenture shall be governed by, and construed in accordance with, the laws of the State of New York.
26
Each of the Company and the Trustee (i) expressly and irrevocably consents to submit itself to the exclusive personal jurisdiction of the state courts in the Borough of Manhattan in the City of New York in the State of New York, and any federal court located in the Borough of Manhattan in the City of New York in the State of New York, together with any appellate court therefrom, with respect to all actions and proceedings arising out of this Indenture or the Notes and (ii) expressly and irrevocably waives (and agrees not to plead or claim) any objection to the laying of venue of any action or proceeding arising out of this Indenture or the Notes in such court or that any such action or proceeding brought in any such court has been brought in an inconvenient forum.
This Supplemental Indenture may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.
EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS SUPPLEMENTAL INDENTURE, THE NOTES OR THE TRANSACTION CONTEMPLATED HEREBY.
In order to comply with applicable tax laws (inclusive of rules, regulations and interpretations promulgated by competent authorities) related to the Indenture in effect from time to time (collectively, “Applicable Tax Law”) that a foreign financial institution, issuer, trustee, paying agent or other party is or has agreed to be subject to, the Company agrees (i) upon reasonable written request of the Trustee, to use commercially reasonable efforts to provide to the Trustee, to the extent available, sufficient information about the parties and/or transactions (including any modification to the terms of such transactions) so that the Trustee can determine whether it has tax-related obligations under Applicable Tax Law and (ii) that the Trustee shall be entitled to make any withholding or deduction in respect of taxes from payments under the Indenture to the extent necessary to comply with Applicable Tax Law for which the Trustee shall not have any liability. Nothing in the immediately preceding sentence shall be construed as obligating the Company to make any “gross up” payment or similar reimbursement in connection with a payment in respect of which amounts are so withheld or deducted. The terms of this paragraph shall survive the satisfaction and discharge of the Indenture.
[SIGNATURE PAGES FOLLOW]
27
IN WITNESS WHEREOF, the Parties have executed this Supplemental Indenture by their duly authorized signatories as of the date first above written.
| COX COMMUNICATIONS, INC. | |||
| By: | /s/ Mark F. Bowser | ||
| Name: | Mark F. Bowser | ||
| Title: | Executive Vice President and Chief Financial Officer | ||
| By: | /s/ Charles L. Odom | ||
| Name: | Charles L. Odom | ||
| Title: | Vice President and Treasurer | ||
[Signature Page to Supplemental Indenture]
| THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee | |||
| By: | /s/ Julic Hoffman-Ramos | ||
| Name: | Julic Hoffman-Ramos | ||
| Title: | Vice President | ||
[Signature Page to Supplemental Indenture]
EXHIBIT A-l(i)
[FORM OF FACE OF SECURITY]
[TRANSFER RESTRICTION LEGEND]
[THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS A NON-U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION WITHIN THE MEANING OF REGULATIONS UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH THE LAWS APPLICABLE TO SUCH PURCHASER IN THE JURISDICTION IN WHICH SUCH PURCHASE IS MADE AND (2) AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) THAT IS ONE YEAR AFTER THE LATER OF THE ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATIONS UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH THE LAWS APPLICABLE TO IT IN THE JURISDICTION IN WHICH SUCH PURCHASE IS MADE, (D) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY’S AND THE TRUSTEE’S, OR REGISTRAR’S, AS APPLICABLE, RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (C) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE FOREGOING CASES, A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE OR REGISTRAR. THIS LEGEND WILL BE REMOVED UPON THE WRITTEN REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.]
[GLOBAL NOTES LEGEND]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON 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.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS, IN WHOLE BUT NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN ARTICLE TWO OF THE SIXTEENTH SUPPLEMENTAL INDENTURE REFERRED TO ON THE REVERSE HEREOF.]
A-1
| No. R- | PRINCIPAL AMOUNT |
| CUSIP No. 224044 CH8 | $ |
COX COMMUNICATIONS, INC.
3.150% Notes due 2024
COX COMMUNICATIONS, INC., a Delaware corporation (hereinafter called the “Company,” which term includes any successor corporation under the Indenture referred to below), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of [ ] ($ ) on August 15, 2024 (the “Maturity Date”), unless previously redeemed, and to pay interest thereon from August 7, 2017 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, payable semiannually on February 15 and August 15 of each year (each, an “Interest Payment Date”), commencing February 15, 2018 at the rate of 3.150% per annum, until the principal hereof is paid or duly made available for payment. Interest shall be computed on the basis of a 360-day year of twelve 30-day months. The interest so payable and punctually paid or duly provided for on any Interest Payment Date will, as provided in the Indenture, be paid to the Person in whose name this Note (or one or more predecessor securities) is registered at the close of business on the regular record date for such interest, which shall be February 1 or August 1 (whether or not a Business Day), as the case may be, immediately preceding such Interest Payment Date. Any such interest which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date shall forthwith cease to be payable to the registered Holder hereof on the relevant regular record date by virtue of having been such Holder, and may be paid to the Person in whose name this Note (or one or more predecessor securities) is registered at the close of business on a subsequent special record date (which shall be not more than 15 days and not less than 10 days before the payment date) for the payment of such defaulted interest to be fixed by the Trustee, notice whereof shall be given to the Holders of Notes of this series not less than 10 days prior to such special record date, or may be paid at any time in any other lawful manner, all as more fully provided in such Indenture. If any Interest Payment Date, Redemption Date or the Maturity Date falls on a day that is not a Business Day, the required payment shall be made on the next Business Day as if it were made on the date such payment was due and no interest shall accrue on the amount so payable for the period from and after such Interest Payment Date, Redemption Date or the Maturity Date, as the case may be, to such next Business Day. Payments of principal, premium, if any, and interest hereunder shall be made in such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts and shall be made immediately available to the Holder (as defined below) hereof.
This Note is one of the duly authorized series of Debt Securities of the Company, designated as the Company’s “3.150% Notes due 2024” (the “Notes”), initially limited to an aggregate principal amount of $1,000,000,000, all issued or to be issued under and pursuant to an Indenture dated as of June 27, 1995 (the “Original Indenture”), as supplemented by the Sixteenth Supplemental Indenture dated as of August 7, 2017 (the “Sixteenth Supplemental Indenture” and, together with the Original Indenture, the “Indenture”), duly executed and delivered by the Company to The Bank of New York Mellon Trust Company, N.A, as trustee (hereinafter referred to as the “Trustee”), to which Indenture and all indentures supplemental thereto reference is hereby made for a description of the rights, limitation of rights, obligations, duties and immunities thereunder of the Trustee, the Company and the Holders (the words “Holders” or “Holder” meaning the registered holders or registered holder of the Notes).
Prior to the Par Call Date, this Note will be redeemable at the option of the Company, in whole at any time or in part from time to time, at a Redemption Price equal to the greater of (i) 100% of the principal amount of this Note to be redeemed and (ii) the sum, as determined by the Quotation Agent, of the present values of the principal amount of this Note to be redeemed and the remaining scheduled payments of interest on the principal amount of this Note to be redeemed (assuming that this Note matured on the Par Call Date), exclusive of interest accrued to the Redemption Date, in each case, discounted from their respective scheduled payment dates to the Redemption Date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as defined below) plus 20 basis points, plus accrued and unpaid interest thereon to, but not including, the Redemption Date. On or after the Par Call Date, this Note will be redeemable at the option of the Company, in whole at any time or in part from time to time, at a Redemption Price equal to 100% of the principal amount of this Note being redeemed, plus accrued and unpaid interest thereon to, but not including, the Redemption Date.
“Comparable Treasury Issue” means, with respect to this Note subject to redemption, the United States Treasury security selected by the Quotation Agent as having an actual or interpolated maturity comparable to the remaining life of this Note to be redeemed (assuming that this Note matured on the Par Call Date) that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity with the remaining life of this Note to be redeemed (assuming, for this purpose, that this Note matured on the Par Call Date).
“Comparable Treasury Price” means, with respect to any Redemption Date, the average of five Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and lowest of such Reference Treasury Dealer Quotations, or, if the Quotation Agent obtains fewer than five such Reference Treasury Dealer Quotations, the average of all such quotations.
“Par Call Date” means June 15, 2024.
“Quotation Agent” means the Reference Treasury Dealer appointed by the Company.
“Reference Treasury Dealer” means, with respect to any Redemption Date, (i) J.P. Morgan Securities LLC, RBC Capital Markets, LLC and Wells Fargo Securities, LLC, and each of their respective successors and (ii) two other nationally recognized investment banking firms (or their respective affiliates) that the Company selects in connection with such Redemption Date, and each of their respective successors; provided, however, that if any of the foregoing shall cease to be a U.S. government securities dealer in the United States (a “Primary Treasury Dealer”), the Company will substitute another Primary Treasury Dealer.
“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and any Redemption Date, the average, as determined by the Quotation Agent, of the bid and asked prices for the Comparable Treasury Issue, expressed in each case as a percentage of its principal amount, quoted in writing to the Quotation Agent by such Reference Treasury Dealer at 3:30 p.m., New York City time, on the third Business Day preceding such Redemption Date.
“Treasury Rate” means, with respect to any Redemption Date, the rate per annum equal to the semi-annual or equivalent yield to maturity or interpolated (on a day-count basis) of the Comparable Treasury Issue, calculated on the third Business Day preceding such Redemption Date using a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such Redemption Date.
If money sufficient to pay the Redemption Price and accrued and unpaid interest on the principal amount of this Note to be redeemed on the Redemption Date is deposited with the Trustee or Paying Agent on or before the Redemption Date and certain other conditions specified in the Indenture are satisfied, then on or after such date, interest will cease to accrue on the principal amount of this Note called for redemption.
Notice of any redemption will be mailed at least 30 days but not more than 60 days before the Redemption Date to the Holder hereof at its registered address.
Except as provided above, this Note is not redeemable by the Company prior to maturity. This Note is not subject to any sinking fund.
Upon the occurrence of a Change of Control Repurchase Event, unless the Company has redeemed this Note or the Company has defeased this Security or satisfied and discharged this Note, the Holder of this Note shall have the right to require that the Company purchase all or a portion (such principal amount to be equal to $2,000 or integral multiples of $1,000 in excess thereof), of this Note at a purchase price in cash in an amount equal to 101% of the principal amount thereof, plus accrued but unpaid interest, if any, to, but not including, the date of purchase. Within 30 days following any Change of Control Repurchase Event, the Company shall deliver a notice to each Holder, in accordance with Section 401(b) of the Supplemental Indenture, with a copy to the Trustee, which notice shall govern the terms of the Change of Control Offer. Notice of any redemption pursuant to the Change of Control Offer will be mailed at least 30 days but not more than 60 days before the Redemption Date to the Holder hereof at its registered address.
In case an Event of Default shall occur and be continuing, the principal hereof may be declared, and upon such declaration shall become, due and payable, in the manner, with the effect and subject to the conditions provided in the Indenture.
Subject to certain exceptions set forth in the Indenture, (i) the Indenture may be amended with respect to the Notes with the consent of the Holders of at least a majority in principal amount outstanding of the Notes and (ii) any default or noncompliance with any provisions applicable to the Notes may be waived with the consent of the Holders of a majority in principal amount outstanding of the Notes. Subject to certain exceptions set forth in the Indenture, without the consent of any Holder, the Company and the Trustee may amend the Indenture or the Notes to, among other things, cure any ambiguity, defect or inconsistency, or to provide for the assumption by a successor person of the obligations of the Company under the Indenture, or to add additional covenants or surrender any right or power conferred on the Company, or to establish the form or terms of the Notes of any series, or to appoint a successor Trustee or provide for administration of the trust by more than one Trustee, or to add to, delete from or revise the conditions, limitations, and restrictions on the authorized amount, terms or purposes of issue, authentication and delivery of the Notes or to add any additional event of default, or to modify the provisions of the Indenture as shall be necessary to facilitate the defeasance and discharge of the Notes as shall not adversely affect any Holders, or to secure the Notes, or to make provisions with respect to exchange rights of Holders, or to make any change that does not adversely affect the rights of any Holder.
Subject to certain conditions, the Company at any time may terminate some or all of its obligations under the Notes and the Indenture if the Company deposits with the Trustee money or U.S. Government Obligations for the payment of principal, premium, if any, and interest on the Notes to the Maturity Date.
If money for the payment of principal or interest remains unclaimed for two years, the Trustee or Paying Agent shall pay the money back to the Company at its request unless an abandoned property law designates another Person. After any such payment, Holders entitled to the money must look only to the Company and not to the Trustee for payment.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and premium, if any, and interest on this Note at the place, at the respective times, at the rate, and in the coin or currency herein prescribed.
No director, officer, employee or stockholder, as such, of the Company shall have any liability for any obligations of the Company under this Note or the Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. Each Holder, by accepting this Note, waives and releases all such liability. The waiver and release are part of the consideration for the issue of this Note.
This Note and the Indenture shall be governed by and construed in accordance with the law of the State of New York applicable to agreements made or instruments entered into and, in each case, performed in said state.
Ownership of this Note shall be proved by the register for the Notes kept by the Registrar. The Company, the Trustee and any agent of the Company may treat the Person in whose name a Note is registered as the absolute owner thereof for all purposes.
Pursuant to a recommendation promulgated by the Committee on Uniform Securities Identification Procedures (“CUSIP”), the Company has caused a CUSIP number to be printed on this Note and has directed the Trustee to use the CUSIP number as a convenience to Holders. No representation is made as to the correctness of such numbers and reliance may be placed only on the other identification numbers printed on this Note.
Terms used herein without definition that are defined in the Indenture shall have the meanings assigned to them in the Indenture.
Unless the Certificate of Authentication hereon has been executed by the Trustee under the Indenture referred to herein by the manual signature of one of its authorized officers, or on behalf of the Trustee by the manual signature of an authorized officer of the Trustee’s authenticating agent, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed, manually or by facsimile.
Date:
| COX COMMUNICATIONS, INC. |
| By: | ||
| Name: | ||
| Title: |
| By: | ||
| Name: | ||
| Title: |
CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated therein referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
as Trustee
| By: | ||
| Authorized Signatory |
Dated:
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby sell(s) assign(s) and transfer(s) unto
Please insert social security number 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 attorney to transfer said Note of Cox Communications, Inc. on the books of Cox Communications, Inc. 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 this Note in every particular without alteration or enlargement or any change whatsoever. The Signature must be guaranteed by an “eligible guarantor institution meeting the requirements of the Registrar, which requirements include memberships or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934.
EXHIBIT A-l(ii)
[FORM OF FACE OF SECURITY]
[TRANSFER RESTRICTION LEGEND]
[THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS A NON-U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION WITHIN THE MEANING OF REGULATIONS UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH THE LAWS APPLICABLE TO SUCH PURCHASER IN THE JURISDICTION IN WHICH SUCH PURCHASE IS MADE AND (2) AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) THAT IS ONE YEAR AFTER THE LATER OF THE ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH THE LAWS APPLICABLE TO IT IN THE JURISDICTION IN WHICH SUCH PURCHASE IS MADE, (D) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY’S AND THE TRUSTEE’S, OR REGISTRAR’S, AS APPLICABLE, RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (C) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE FOREGOING CASES, A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE OR REGISTRAR. THIS LEGEND WILL BE REMOVED UPON THE WRITTEN REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.]
[GLOBAL NOTES LEGEND]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON 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.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS, IN WHOLE BUT NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN ARTICLE TWO OF THE SIXTEENTH SUPPLEMENTAL INDENTURE REFERRED TO ON THE REVERSE HEREOF.]
| No. R- | PRINCIPAL AMOUNT |
| CUSIP No. 224044 CJ4 | $ |
COX COMMUNICATIONS, INC.
3.500% Notes due 2027
COX COMMUNICATIONS, INC., a Delaware corporation (hereinafter called the “Company,” which term includes any successor corporation under the Indenture referred to below), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of [ ] ($ ) on August 15, 2027 (the “Maturity Date”), unless previously redeemed, and to pay interest thereon from August 7, 2017 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, payable semiannually on February 15 and August 15 of each year (each, an “Interest Payment Date”), commencing February 15, 2018 at the rate of 3.500% per annum, until the principal hereof is paid or duly made available for payment. Interest shall be computed on the basis of a 360-day year of twelve 30-day months. The interest so payable and punctually paid or duly provided for on any Interest Payment Date will, as provided in the Indenture, be paid to the Person in whose name this Note (or one or more predecessor securities) is registered at the close of business on the regular record date for such interest, which shall be February 1 or August 1 (whether or not a Business Day), as the case may be, immediately preceding such Interest Payment Date. Any such interest which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date shall forthwith cease to be payable to the registered Holder hereof on the relevant regular record date by virtue of having been such Holder, and may be paid to the Person in whose name this Note (or one or more predecessor securities) is registered at the close of business on a subsequent special record date (which shall be not more than 15 days and not less than 10 days before the payment date) for the payment of such defaulted interest to be fixed by the Trustee, notice whereof shall be given to the Holders of Notes of this series not less than 10 days prior to such special record date, or may be paid at any time in any other lawful manner, all as more fully provided in such Indenture. If any Interest Payment Date, Redemption Date or the Maturity Date falls on a day that is not a Business Day, the required payment shall be made on the next Business Day as if it were made on the date such payment was due and no interest shall accrue on the amount so payable for the period from and after such Interest Payment Date, Redemption Date or the Maturity Date, as the case may be, to such next Business Day. Payments of principal, premium, if any, and interest hereunder shall be made in such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts and shall be made immediately available to the Holder (as defined below) hereof.
This Note is one of the duly authorized series of Debt Securities of the Company, designated as the Company’s “3.500% Notes due 2027” (the “Notes”), initially limited to an aggregate principal amount of $1,000,000,000, all issued or to be issued under and pursuant to an Indenture dated as of June 27, 1995 (the “Original Indenture”), as supplemented by the Sixteenth Supplemental Indenture dated as of August 7, 2017 (the “Sixteenth Supplemental Indenture” and, together with the Original Indenture, the “Indenture”), duly executed and delivered by the Company to The Bank of New York Mellon Trust Company, N.A, as trustee (hereinafter referred to as the “Trustee”), to which Indenture and all indentures supplemental thereto reference is hereby made for a description of the rights, limitation of rights, obligations, duties and immunities thereunder of the Trustee, the Company and the Holders (the words “Holders” or “Holder” meaning the registered holders or registered holder of the Notes).
Prior to the Par Call Date, this Note will be redeemable at the option of the Company, in whole at any time or in part from time to time, at a Redemption Price equal to the greater of (i) 100% of the principal amount of this Note to be redeemed and (ii) the sum, as determined by the Quotation Agent, of the present values of the principal amount of this Note to be redeemed and the remaining scheduled payments of interest on the principal amount of this Note to be redeemed (assuming that this Note matured on the Par Call Date), exclusive of interest accrued to the Redemption Date, in each case, discounted from their respective scheduled payment dates to the Redemption Date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as defined below) plus 20 basis points, plus accrued and unpaid interest thereon to, but not including, the Redemption Date. On or after the Par Call Date, this Note will be redeemable at the option of the Company, in whole at any time or in part from time to time, at a Redemption Price equal to 100% of the principal amount of this Note being redeemed, plus accrued and unpaid interest thereon to, but not including, the Redemption Date.
“Comparable Treasury Issue” means, with respect to this Note subject to redemption, the United States Treasury security selected by the Quotation Agent as having an actual or interpolated maturity comparable to the remaining life of this Note to be redeemed (assuming that this Note matured on the Par Call Date) that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity with the remaining life of this Note to be redeemed (assuming, for this purpose, that this Note matured on the Par Call Date).
“Comparable Treasury Price” means, with respect to any Redemption Date, the average of five Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and lowest of such Reference Treasury Dealer Quotations, or, if the Quotation Agent obtains fewer than five such Reference Treasury Dealer Quotations, the average of all such quotations.
“Par Call Date” means May 15, 2027.
“Quotation Agent” means the Reference Treasury Dealer appointed by the Company.
“Reference Treasury Dealer” means, with respect to any Redemption Date, (i) J.P. Morgan Securities LLC, RBC Capital Markets, LLC and Wells Fargo Securities, LLC, and each of their respective successors and (ii) two other nationally recognized investment banking firms (or their respective affiliates) that the Company selects in connection with such Redemption Date, and each of their respective successors; provided, however, that if any of the foregoing shall cease to be a U.S. government securities dealer in the United States (a “Primary Treasury Dealer”), the Company will substitute another Primary Treasury Dealer.
“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and any Redemption Date, the average, as determined by the Quotation Agent, of the bid and asked prices for the Comparable Treasury Issue, expressed in each case as a percentage of its principal amount, quoted in writing to the Quotation Agent by such Reference Treasury Dealer at 3:30 p.m., New York City time, on the third Business Day preceding such Redemption Date.
“Treasury Rate” means, with respect to any Redemption Date, the rate per annum equal to the semi-annual or equivalent yield to maturity or interpolated (on a day-count basis) of the Comparable Treasury Issue, calculated on the third Business Day preceding such Redemption Date using a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such Redemption Date.
If money sufficient to pay the Redemption Price and accrued and unpaid interest on the principal amount of this Note to be redeemed on the Redemption Date is deposited with the Trustee or Paying Agent on or before the Redemption Date and certain other conditions specified in the Indenture are satisfied, then on or after such date, interest will cease to accrue on the principal amount of this Note called for redemption.
Notice of any redemption will be mailed at least 30 days but not more than 60 days before the Redemption Date to the Holder hereof at its registered address.
Except as provided above, this Note is not redeemable by the Company prior to maturity.
This Note is not subject to any sinking fund.
Upon the occurrence of a Change of Control Repurchase Event, unless the Company has redeemed this Note or the Company has defeased this Security or satisfied and discharged this Note, the Holder of this Note shall have the right to require that the Company purchase all or a portion (such principal amount to be equal to $2,000 or integral multiples of $1,000 in excess thereof), of this Note at a purchase price in cash in an amount equal to 101% of the principal amount thereof, plus accrued but unpaid interest, if any, to, but not including, the date of purchase. Within 30 days following any Change of Control Repurchase Event, the Company shall deliver a notice to each Holder, in accordance with Section 401(b) of the Supplemental Indenture, with a copy to the Trustee, which notice shall govern the terms of the Change of Control Offer. Notice of any redemption pursuant to the Change of Control Offer will be mailed at least 30 days but not more than 60 days before the Redemption Date to the Holder hereof at its registered address.
In case an Event of Default shall occur and be continuing, the principal hereof may be declared, and upon such declaration shall become, due and payable, in the manner, with the effect and subject to the conditions provided in the Indenture.
Subject to certain exceptions set forth in the Indenture, (i) the Indenture may be amended with respect to the Notes with the consent of the Holders of at least a majority in principal amount outstanding of the Notes and (ii) any default or noncompliance with any provisions applicable to the Notes may be waived with the consent of the Holders of a majority in principal amount outstanding of the Notes. Subject to certain exceptions set forth in the Indenture, without the consent of any Holder, the Company and the Trustee may amend the Indenture or the Notes to, among other things, cure any ambiguity, defect or inconsistency, or to provide for the assumption by a successor person of the obligations of the Company under the Indenture, or to add additional covenants or surrender any right or power conferred on the Company, or to establish the form or terms of the Notes of any series, or to appoint a successor Trustee or provide for administration of the trust by more than one Trustee, or to add to, delete from or revise the conditions, limitations, and restrictions on the authorized amount, terms or purposes of issue, authentication and delivery of the Notes or to add any additional event of default, or to modify the provisions of the Indenture as shall be necessary to facilitate the defeasance and discharge of the Notes as shall not adversely affect any Holders, or to secure the Notes, or to make provisions with respect to exchange rights of Holders, or to make any change that does not adversely affect the rights of any Holder.
Subject to certain conditions, the Company at any time may terminate some or all of its obligations under the Notes and the Indenture if the Company deposits with the Trustee money or U.S. Government Obligations for the payment of principal, premium, if any, and interest on the Notes to the Maturity Date.
If money for the payment of principal or interest remains unclaimed for two years, the Trustee or Paying Agent shall pay the money back to the Company at its request unless an abandoned property law designates another Person. After any such payment, Holders entitled to the money must look only to the Company and not to the Trustee for payment.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and premium, if any, and interest on this Note at the place, at the respective times, at the rate, and in the coin or currency herein prescribed.
No director, officer, employee or stockholder, as such, of the Company shall have any liability for any obligations of the Company under this Note or the Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. Each Holder, by accepting this Note, waives and releases all such liability. The waiver and release are part of the consideration for the issue of this Note.
This Note and the Indenture shall be governed by and construed in accordance with the law of the State of New York applicable to agreements made or instruments entered into and, in each case, performed in said state.
Ownership of this Note shall be proved by the register for the Notes kept by the Registrar. The Company, the Trustee and any agent of the Company may treat the Person in whose name a Note is registered as the absolute owner thereof for all purposes.
Pursuant to a recommendation promulgated by the Committee on Uniform Securities Identification Procedures (“CUSIP”), the Company has caused a CUSIP number to be printed on this Note and has directed the Trustee to use the CUSIP number as a convenience to Holders. No representation is made as to the correctness of such numbers and reliance may be placed only on the other identification numbers printed on this Note.
Terms used herein without definition that are defined in the Indenture shall have the meanings assigned to them in the Indenture.
Unless the Certificate of Authentication hereon has been executed by the Trustee under the Indenture referred to herein by the manual signature of one of its authorized officers, or on behalf of the Trustee by the manual signature of an authorized officer of the Trustee’s authenticating agent, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed, manually or by facsimile.
Date:
| COX COMMUNICATIONS, INC. |
| By: | ||
| Name: | ||
| Title: |
| By: | ||
| Name: | ||
| Title: |
CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated therein referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
as Trustee
| By: | ||
| Authorized Signatory |
Dated:
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby sell(s) assign(s) and transfer(s) unto
Please insert social security number 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 attorney to transfer said Note of Cox Communications, Inc. on the books of Cox Communications, Inc. 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 this Note in every particular without alteration or enlargement or any change whatsoever. The Signature must be guaranteed by an “eligible guarantor institution meeting the requirements of the Registrar, which requirements include memberships or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934.
EXHIBIT A-l(iii)
[FORM OF FACE OF SECURITY]
[TRANSFER RESTRICTION LEGEND]
[THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS A NON-U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION WITHIN THE MEANING OF REGULATIONS UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH THE LAWS APPLICABLE TO SUCH PURCHASER IN THE JURISDICTION IN WHICH SUCH PURCHASE IS MADE AND (2) AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) THAT IS ONE YEAR AFTER THE LATER OF THE ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH THE LAWS APPLICABLE TO IT IN THE JURISDICTION IN WHICH SUCH PURCHASE IS MADE, (D) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY’S AND THE TRUSTEE’S, OR REGISTRAR’S, AS APPLICABLE, RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (C) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE FOREGOING CASES, A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE OR REGISTRAR. THIS LEGEND WILL BE REMOVED UPON THE WRITTEN REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.]
[GLOBAL NOTES LEGEND]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON 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.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS, IN WHOLE BUT NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN ARTICLE TWO OF THE SIXTEENTH SUPPLEMENTAL INDENTURE REFERRED TO ON THE REVERSE HEREOF.]
| No. R- | PRINCIPAL AMOUNT |
| CUSIP No. 224044 CK1 | $ |
COX COMMUNICATIONS, INC.
4.600% Notes due 2047
COX COMMUNICATIONS, INC., a Delaware corporation (hereinafter called the “Company,” which term includes any successor corporation under the Indenture referred to below), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of [ ] ($ ) on August 15, 2047 (the “Maturity Date”), unless previously redeemed, and to pay interest thereon from August 7, 2017 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, payable semiannually on February 15 and August 15 of each year (each, an “Interest Payment Date”), commencing February 15, 2018 at the rate of 4.600% per annum, until the principal hereof is paid or duly made available for payment. Interest shall be computed on the basis of a 360-day year of twelve 30-day months. The interest so payable and punctually paid or duly provided for on any Interest Payment Date will, as provided in the Indenture, be paid to the Person in whose name this Note (or one or more predecessor securities) is registered at the close of business on the regular record date for such interest, which shall be February 1 or August 1 (whether or not a Business Day), as the case may be, immediately preceding such Interest Payment Date. Any such interest which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date shall forthwith cease to be payable to the registered Holder hereof on the relevant regular record date by virtue of having been such Holder, and may be paid to the Person in whose name this Note (or one or more predecessor securities) is registered at the close of business on a subsequent special record date (which shall be not more than 15 days and not less than 10 days before the payment date) for the payment of such defaulted interest to be fixed by the Trustee, notice whereof shall be given to the Holders of Notes of this series not less than 10 days prior to such special record date, or may be paid at any time in any other lawful manner, all as more fully provided in such Indenture. If any Interest Payment Date, Redemption Date or the Maturity Date falls on a day that is not a Business Day, the required payment shall be made on the next Business Day as if it were made on the date such payment was due and no interest shall accrue on the amount so payable for the period from and after such Interest Payment Date, Redemption Date or the Maturity Date, as the case may be, to such next Business Day. Payments of principal, premium, if any, and interest hereunder shall be made in such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts and shall be made immediately available to the Holder (as defined below) hereof.
This Note is one of the duly authorized series of Debt Securities of the Company, designated as the Company’s “4.600% Notes due 2047” (the “Notes”), initially limited to an aggregate principal amount of $6,000,000,000, all issued or to be issued under and pursuant to an Indenture dated as of June 27, 1995 (the “Original Indenture”), as supplemented by the Sixteenth Supplemental Indenture dated as of August 7, 2017 (the “Sixteenth Supplemental Indenture” and, together with the Original Indenture, the “Indenture”), duly executed and delivered by the Company to The Bank of New York Mellon Trust Company, N.A, as trustee (hereinafter referred to as the “Trustee”), to which Indenture and all indentures supplemental thereto reference is hereby made for a description of the rights, limitation of rights, obligations, duties and immunities thereunder of the Trustee, the Company and the Holders (the words “Holders” or “Holder” meaning the registered holders or registered holder of the Notes).
Prior to the Par Call Date, this Note will be redeemable at the option of the Company, in whole at any time or in part from time to time, at a Redemption Price equal to the greater of (i) 100% of the principal amount of this Note to be redeemed and (ii) the sum, as determined by the Quotation Agent, of the present values of the principal amount of this Note to be redeemed and the remaining scheduled payments of interest on the principal amount of this Note to be redeemed (assuming that this Note matured on the Par Call Date), exclusive of interest accrued to the Redemption Date, in each case, discounted from their respective scheduled payment dates to the Redemption Date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as defined below) plus 30 basis points, plus accrued and unpaid interest thereon to, but not including, the Redemption Date. On or after the Par Call Date, this Note will be redeemable at the option of the Company, in whole at any time or in part from time to time, at a Redemption Price equal to 100% of the principal amount of this Note being redeemed, plus accrued and unpaid interest thereon to, but not including, the Redemption Date.
“Comparable Treasury Issue” means, with respect to this Note subject to redemption, the United States Treasury security selected by the Quotation Agent as having an actual or interpolated maturity comparable to the remaining life of this Note to be redeemed (assuming that this Note matured on the Par Call Date) that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity with the remaining life of this Note to be redeemed (assuming, for this purpose, that this Note matured on the Par Call Date).
“Comparable Treasury Price” means, with respect to any Redemption Date, the average of five Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and lowest of such Reference Treasury Dealer Quotations, or, if the Quotation Agent obtains fewer than five such Reference Treasury Dealer Quotations, the average of all such quotations.
“Par Call Date” means February 15, 2047.
“Quotation Agent” means the Reference Treasury Dealer appointed by the Company.
“Reference Treasury Dealer” means, with respect to any Redemption Date, (i) J.P. Morgan Securities LLC, RBC Capital Markets, LLC and Wells Fargo Securities, LLC, and each of their respective successors and (ii) two other nationally recognized investment banking firms (or their respective affiliates) that the Company selects in connection with such Redemption Date, and each of their respective successors; provided, however, that if any of the foregoing shall cease to be a U.S. government securities dealer in the United States (a “Primary Treasury Dealer”), the Company will substitute another Primary Treasury Dealer.
“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and any Redemption Date, the average, as determined by the Quotation Agent, of the bid and asked prices for the Comparable Treasury Issue, expressed in each case as a percentage of its principal amount, quoted in writing to the Quotation Agent by such Reference Treasury Dealer at 3:30 p.m., New York City time, on the third Business Day preceding such Redemption Date.
“Treasury Rate” means, with respect to any Redemption Date, the rate per annum equal to the semi-annual or equivalent yield to maturity or interpolated (on a day-count basis) of the Comparable Treasury Issue, calculated on the third Business Day preceding such Redemption Date using a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such Redemption Date.
If money sufficient to pay the Redemption Price and accrued and unpaid interest on the principal amount of this Note to be redeemed on the Redemption Date is deposited with the Trustee or Paying Agent on or before the Redemption Date and certain other conditions specified in the Indenture are satisfied, then on or after such date, interest will cease to accrue on the principal amount of this Note called for redemption.
Notice of any redemption will be mailed at least 30 days but not more than 60 days before the Redemption Date to the Holder hereof at its registered address.
Except as provided above, this Note is not redeemable by the Company prior to maturity. This Note is not subject to any sinking fund.
Upon the occurrence of a Change of Control Repurchase Event, unless the Company has redeemed this Note or the Company has defeased this Security or satisfied and discharged this Note, the Holder of this Note shall have the right to require that the Company purchase all or a portion (such principal amount to be equal to $2,000 or integral multiples of $1,000 in excess thereof), of this Note at a purchase price in cash in an amount equal to 101% of the principal amount thereof, plus accrued but unpaid interest, if any, to, but not including, the date of purchase. Within 30 days following any Change of Control Repurchase Event, the Company shall deliver a notice to each Holder, in accordance with Section 401(b) of the Supplemental Indenture, with a copy to the Trustee, which notice shall govern the terms of the Change of Control Offer. Notice of any redemption pursuant to the Change of Control Offer will be mailed at least 30 days but not more than 60 days before the Redemption Date to the Holder hereof at its registered address.
In case an Event of Default shall occur and be continuing, the principal hereof may be declared, and upon such declaration shall become, due and payable, in the manner, with the effect and subject to the conditions provided in the Indenture.
Subject to certain exceptions set forth in the Indenture, (i) the Indenture may be amended with respect to the Notes with the consent of the Holders of at least a majority in principal amount outstanding of the Notes and (ii) any default or noncompliance with any provisions applicable to the Notes may be waived with the consent of the Holders of a majority in principal amount outstanding of the Notes. Subject to certain exceptions set forth in the Indenture, without the consent of any Holder, the Company and the Trustee may amend the Indenture or the Notes to, among other things, cure any ambiguity, defect or inconsistency, or to provide for the assumption by a successor person of the obligations of the Company under the Indenture, or to add additional covenants or surrender any right or power conferred on the Company, or to establish the form or terms of the Notes of any series, or to appoint a successor Trustee or provide for administration of the trust by more than one Trustee, or to add to, delete from or revise the conditions, limitations, and restrictions on the authorized amount, terms or purposes of issue, authentication and delivery of the Notes or to add any additional event of default, or to modify the provisions of the Indenture as shall be necessary to facilitate the defeasance and discharge of the Notes as shall not adversely affect any Holders, or to secure the Notes, or to make provisions with respect to exchange rights of Holders, or to make any change that does not adversely affect the rights of any Holder.
Subject to certain conditions, the Company at any time may terminate some or all of its obligations under the Notes and the Indenture if the Company deposits with the Trustee money or U.S. Government Obligations for the payment of principal, premium, if any, and interest on the Notes to the Maturity Date.
If money for the payment of principal or interest remains unclaimed for two years, the Trustee or Paying Agent shall pay the money back to the Company at its request unless an abandoned property law designates another Person. After any such payment, Holders entitled to the money must look only to the Company and not to the Trustee for payment.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and premium, if any, and interest on this Note at the place, at the respective times, at the rate, and in the coin or currency herein prescribed.
No director, officer, employee or stockholder, as such, of the Company shall have any liability for any obligations of the Company under this Note or the Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. Each Holder, by accepting this Note, waives and releases all such liability. The waiver and release are part of the consideration for the issue of this Note.
This Note and the Indenture shall be governed by and construed in accordance with the law of the State of New York applicable to agreements made or instruments entered into and, in each case, performed in said state.
Ownership of this Note shall be proved by the register for the Notes kept by the Registrar. The Company, the Trustee and any agent of the Company may treat the Person in whose name a Note is registered as the absolute owner thereof for all purposes.
Pursuant to a recommendation promulgated by the Committee on Uniform Securities Identification Procedures (“CUSIP”), the Company has caused a CUSIP number to be printed on this Note and has directed the Trustee to use the CUSIP number as a convenience to Holders. No representation is made as to the correctness of such numbers and reliance may be placed only on the other identification numbers printed on this Note.
Terms used herein without definition that are defined in the Indenture shall have the meanings assigned to them in the Indenture.
Unless the Certificate of Authentication hereon has been executed by the Trustee under the Indenture referred to herein by the manual signature of one of its authorized officers, or on behalf of the Trustee by the manual signature of an authorized officer of the Trustee’s authenticating agent, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed, manually or by facsimile.
Date:
| COX COMMUNICATIONS, INC. |
| By: | ||
| Name: | ||
| Title: |
| By: | ||
| Name: | ||
| Title: |
CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated therein referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
as Trustee
| By: | ||
| Authorized Signatory |
Dated:
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby sell(s) assign(s) and transfer(s) unto
Please insert social security number 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 attorney to transfer said Note of Cox Communications, Inc. on the books of Cox Communications, Inc. 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 this Note in every particular without alteration or enlargement or any change whatsoever. The Signature must be guaranteed by an “eligible guarantor institution meeting the requirements of the Registrar, which requirements include memberships or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934.
EXHIBIT A-2(i)
[FORM OF FACE OF SECURITY]
[TRANSFER RESTRICTION LEGEND]
[THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS A NON-U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION WITHIN THE MEANING OF REGULATIONS UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH THE LAWS APPLICABLE TO SUCH PURCHASER IN THE JURISDICTION IN WHICH SUCH PURCHASE IS MADE AND (2) AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) THAT IS 40 DAYS AFTER THE LATER OF THE ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATIONS UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH THE LAWS APPLICABLE TO IT IN THE JURISDICTION IN WHICH SUCH PURCHASE IS MADE, (D) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY’S AND THE TRUSTEE’S, OR REGISTRAR’S, AS APPLICABLE, RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (C) OR (E) TO REQUIRE IBE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE FOREGOING CASES, A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE OR REGISTRAR. THIS LEGEND WILL BE REMOVED UPON THE WRITTEN REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE. BY ITS ACQUISITION HEREOF, THE HOLDER HEREOF REPRESENTS THAT IT IS NOT A U.S. PERSON NOR IS IT PURCHASING FOR THE ACCOUNT OF A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATIONS UNDER THE SECURITIES ACT.
THIS GLOBAL NOTE IS A TEMPORARY GLOBAL NOTE FOR PURPOSES OF REGULATIONS UNDER THE SECURITIES ACT. NEITHER THIS TEMPORARY GLOBAL NOTE NOR ANY INTEREST HEREIN MAY BE OFFERED, SOLD OR DELIVERED, EXCEPT AS PERMITTED UNDER THE INDENTURE REFERRED TO BELOW.]
[GLOBAL NOTES LEGEND]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON 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.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS, IN WHOLE BUT NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN ARTICLE TWO OF THE SIXTEENTH SUPPLEMENTAL INDENTURE REFERRED TO ON THE REVERSE HEREOF.]
| No. R- | PRINCIPAL AMOUNT |
| CUSIP No. U22018 AT9 | $ |
COX COMMUNICATIONS, INC.
3.150% Notes due 2024
COX COMMUNICATIONS, INC., a Delaware corporation (hereinafter called the “Company,” which term includes any successor corporation under the Indenture referred to below), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of [ ] ($ ) on August 15, 2024 (the “Maturity Date”), unless previously redeemed, and to pay interest thereon from August 7, 2017 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, payable semiannually on February 15 and August 15 of each year (each, an “Interest Payment Date”), commencing February 15, 2018 at the rate of 3.150% per annum, until the principal hereof is paid or duly made available for payment. Interest shall be computed on the basis of a 360-day year of twelve 30-day months. The interest so payable and punctually paid or duly provided for on any Interest Payment Date will, as provided in the Indenture, be paid to the Person in whose name this Note (or one or more predecessor securities) is registered at the close of business on the regular record date for such interest, which shall be February 1 or August 1 (whether or not a Business Day), as the case may be, immediately preceding such Interest Payment Date. Any such interest which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date shall forthwith cease to be payable to the registered Holder hereof on the relevant regular record date by virtue of having been such Holder, and may be paid to the Person in whose name this Note (or one or more predecessor securities) is registered at the close of business on a subsequent special record date (which shall be not more than 15 days and not less than 10 days before the payment date) for the payment of such defaulted interest to be fixed by the Trustee, notice whereof shall be given to the Holders of Notes of this series not less than 10 days prior to such special record date, or may be paid at any time in any other lawful manner, all as more fully provided in such Indenture. If any Interest Payment Date, Redemption Date or the Maturity Date falls on a day that is not a Business Day, the required payment shall be made on the next Business Day as if it were made on the date such payment was due and no interest shall accrue on the amount so payable for the period from and after such Interest Payment Date, Redemption Date or the Maturity Date, as the case may be, to such next Business Day. Payments of principal, premium, if any, and interest hereunder shall be made in such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts and shall be made immediately available to the Holder (as defined below) hereof.
This Note is one of the duly authorized series of Debt Securities of the Company, designated as the Company’s “3.150% Notes due 2024” (the “Notes”), initially limited to an aggregate principal amount of $1,000,000,000, all issued or to be issued under and pursuant to an Indenture dated as of June 27, 1995 (the “Original Indenture”), as supplemented by the Sixteenth Supplemental Indenture dated as of August 7, 2017 (the “Sixteenth Supplemental Indenture” and, together with the Original Indenture, the “Indenture”), duly executed and delivered by the Company to The Bank of New York Mellon Trust Company, N.A, as trustee (hereinafter referred to as the “Trustee”), to which Indenture and all indentures supplemental thereto reference is hereby made for a description of the rights, limitation of rights, obligations, duties and immunities thereunder of the Trustee, the Company and the Holders (the words “Holders” or “Holder” meaning the registered holders or registered holder of the Notes).
Prior to the Par Call Date, this Note will be redeemable at the option of the Company, in whole at any time or in part from time to time, at a Redemption Price equal to the greater of (i) 100% of the principal amount of this Note to be redeemed and (ii) the sum, as determined by the Quotation Agent, of the present values of the principal amount of this Note to be redeemed and the remaining scheduled payments of interest on the principal amount of this Note to be redeemed (assuming that this Note matured on the Par Call Date), exclusive of interest accrued to the Redemption Date, in each case, discounted from their respective scheduled payment dates to the Redemption Date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as defined below) plus 20 basis points, plus accrued and unpaid interest thereon to, but not including, the Redemption Date. On or after the Par Call Date, this Note will be redeemable at the option of the Company, in whole at any time or in part from time to time, at a Redemption Price equal to 100% of the principal amount of this Note being redeemed, plus accrued and unpaid interest thereon to, but not including, the Redemption Date.
“Comparable Treasury Issue” means, with respect to this Note subject to redemption, the United States Treasury security selected by the Quotation Agent as having an actual or interpolated maturity comparable to the remaining life of this Note to be redeemed (assuming that this Note matured on the Par Call Date) that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity with the remaining life of this Note to be redeemed (assuming, for this purpose, that this Note matured on the Par Call Date).
“Comparable Treasury Price” means, with respect to any Redemption Date, the average of five Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and lowest of such Reference Treasury Dealer Quotations, or, if the Quotation Agent obtains fewer than five such Reference Treasury Dealer Quotations, the average of all such quotations.
“Par Call Date” means June 15, 2024.
“Quotation Agent” means the Reference Treasury Dealer appointed by the Company.
“Reference Treasury Dealer” means, with respect to any Redemption Date, (i) J.P. Morgan Securities LLC, RBC Capital Markets, LLC and Wells Fargo Securities, LLC, and each of their respective successors and (ii) two other nationally recognized investment banking firms (or their respective affiliates) that the Company selects in connection with such Redemption Date, and each of their respective successors; provided, however, that if any of the foregoing shall cease to be a U.S. government securities dealer in the United States (a “Primary Treasury Dealer”), the Company will substitute another Primary Treasury Dealer.
“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and any Redemption Date, the average, as determined by the Quotation Agent, of the bid and asked prices for the Comparable Treasury Issue, expressed in each case as a percentage of its principal amount, quoted in writing to the Quotation Agent by such Reference Treasury Dealer at 3:30 p.m., New York City time, on the third Business Day preceding such Redemption Date.
“Treasury Rate” means, with respect to any Redemption Date, the rate per annum equal to the semi-annual or equivalent yield to maturity or interpolated (on a day-count basis) of the Comparable Treasury Issue, calculated on the third Business Day preceding such Redemption Date using a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such Redemption Date.
If money sufficient to pay the Redemption Price and accrued and unpaid interest on the principal amount of this Note to be redeemed on the Redemption Date is deposited with the Trustee or Paying Agent on or before the Redemption Date and certain other conditions specified in the Indenture are satisfied, then on or after such date, interest will cease to accrue on the principal amount of this Note called for redemption.
Notice of any redemption will be mailed at least 30 days but not more than 60 days before the Redemption Date to the Holder hereof at its registered address.
Except as provided above, this Note is not redeemable by the Company prior to maturity. This Note is not subject to any sinking fund.
Upon the occurrence of a Change of Control Repurchase Event, unless the Company has redeemed this Note or the Company has defeased this Security or satisfied and discharged this Note, the Holder of this Note shall have the right to require that the Company purchase all or a portion (such principal amount to be equal to $2,000 or integral multiples of $1,000 in excess thereof), of this Note at a purchase price in cash in an amount equal to 101% of the principal amount thereof, plus accrued but unpaid interest, if any, to, but not including, the date of purchase. Within 30 days following any Change of Control Repurchase Event, the Company shall deliver a notice to each Holder, in accordance with Section 401(b) of the Supplemental Indenture, with a copy to the Trustee, which notice shall govern the terms of the Change of Control Offer. Notice of any redemption pursuant to the Change of Control Offer will be mailed at least 30 days but not more than 60 days before the Redemption Date to the Holder hereof at its registered address.
In case an Event of Default shall occur and be continuing, the principal hereof may be declared, and upon such declaration shall become, due and payable, in the manner, with the effect and subject to the conditions provided in the Indenture.
Subject to certain exceptions set forth in the Indenture, (i) the Indenture may be amended with respect to the Notes with the consent of the Holders of at least a majority in principal amount outstanding of the Notes and (ii) any default or noncompliance with any provisions applicable to the Notes may be waived with the consent of the Holders of a majority in principal amount outstanding of the Notes. Subject to certain exceptions set forth in the Indenture, without the consent of any Holder, the Company and the Trustee may amend the Indenture or the Notes to, among other things, cure any ambiguity, defect or inconsistency, or to provide for the assumption by a successor person of the obligations of the Company under the Indenture, or to add additional covenants or surrender any right or power conferred on the Company, or to establish the form or terms of the Notes of any series, or to appoint a successor Trustee or provide for administration of the trust by more than one Trustee, or to add to, delete from or revise the conditions, limitations, and restrictions on the authorized amount, terms or purposes of issue, authentication and delivery of the Notes or to add any additional event of default, or to modify the provisions of the Indenture as shall be necessary to facilitate the defeasance and discharge of the Notes as shall not adversely affect any Holders, or to secure the Notes, or to make provisions with respect to exchange rights of Holders, or to make any change that does not adversely affect the rights of any Holder.
Subject to certain conditions, the Company at any time may terminate some or all of its obligations under the Notes and the Indenture if the Company deposits with the Trustee money or U.S. Government Obligations for the payment of principal, premium, if any, and interest on the Notes to the Maturity Date.
If money for the payment of principal or interest remains unclaimed for two years, the Trustee or Paying Agent shall pay the money back to the Company at its request unless an abandoned property law designates another Person. After any such payment, Holders entitled to the money must look only to the Company and not to the Trustee for payment.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and premium, if any, and interest on this Note at the place, at the respective times, at the rate, and in the coin or currency herein prescribed.
No director, officer, employee or stockholder, as such, of the Company shall have any liability for any obligations of the Company under this Note or the Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. Each Holder, by accepting this Note, waives and releases all such liability. The waiver and release are part of the consideration for the issue of this Note.
This Note and the Indenture shall be governed by and construed in accordance with the law of the State of New York applicable to agreements made or instruments entered into and, in each case, performed in said state.
Ownership of this Note shall be proved by the register for the Notes kept by the Registrar. The Company, the Trustee and any agent of the Company may treat the Person in whose name a Note is registered as the absolute owner thereof for all purposes.
Pursuant to a recommendation promulgated by the Committee on Uniform Securities Identification Procedures (“CUSIP”), the Company has caused a CUSIP number to be printed on this Note and has directed the Trustee to use the CUSIP number as a convenience to Holders. No representation is made as to the correctness of such numbers and reliance may be placed only on the other identification numbers printed on this Note.
Terms used herein without definition that are defined in the Indenture shall have the meanings assigned to them in the Indenture.
Unless the Certificate of Authentication hereon has been executed by the Trustee under the Indenture referred to herein by the manual signature of one of its authorized officers, or on behalf of the Trustee by the manual signature of an authorized officer of the Trustee’s authenticating agent, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed, manually or by facsimile.
Date:
| COX COMMUNICATIONS, INC. |
| By: | ||
| Name: | ||
| Title: |
| By: | ||
| Name: | ||
| Title: |
CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated therein referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
as Trustee
| By: | ||
| Authorized Signatory |
Dated:
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby sell(s) assign(s) and transfer(s) unto
Please insert social security number 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 attorney to transfer said Note of Cox Communications, Inc. on the books of Cox Communications, Inc. 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 this Note in every particular without alteration or enlargement or any change whatsoever. The Signature must be guaranteed by an “eligible guarantor institution meeting the requirements of the Registrar, which requirements include memberships or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934.
EXHIBIT A-2(ii)
[FORM OF FACE OF SECURITY] [TRANSFER RESTRICTION LEGEND]
[THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS A NON-U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION WITHIN THE MEANING OF REGULATIONS UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH THE LAWS APPLICABLE TO SUCH PURCHASER IN THE JURISDICTION IN WHICH SUCH PURCHASE IS MADE AND (2) AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) THAT IS 40 DAYS AFTER THE LATER OF THE ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATIONS UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH THE LAWS APPLICABLE TO IT IN THE JURISDICTION IN WHICH SUCH PURCHASE IS MADE, (D) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY’S AND THE TRUSTEE’S, OR REGISTRAR’S, AS APPLICABLE, RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (C) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE FOREGOING CASES, A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE OR REGISTRAR. THIS LEGEND WILL BE REMOVED UPON THE WRITTEN REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE. BY ITS ACQUISITION HEREOF, THE HOLDER HEREOF REPRESENTS THAT IT IS NOT A U.S. PERSON NOR IS IT PURCHASING FOR THE ACCOUNT OF A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATIONS UNDER THE SECURITIES ACT.
THIS GLOBAL NOTE IS A TEMPORARY GLOBAL NOTE FOR PURPOSES OF REGULATIONS UNDER THE SECURITIES ACT. NEITHER THIS TEMPORARY GLOBAL NOTE NOR ANY INTEREST HEREIN MAY BE OFFERED, SOLD OR DELIVERED, EXCEPT AS PERMITTED UNDER THE INDENTURE REFERRED TO BELOW.]
[GLOBAL NOTES LEGEND]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO IBE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON 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.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS, IN WHOLE BUT NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN ARTICLE TWO OF THE SIXTEENTH SUPPLEMENTAL INDENTURE REFERRED TO ON THE REVERSE HEREOF.]
| No. R- | PRINCIPAL AMOUNT |
| CUSIP No. U22018 AU6 | $ |
COX COMMUNICATIONS, INC.
3.500% Notes due 2027
COX COMMUNICATIONS, INC., a Delaware corporation (hereinafter called the “Company,” which tem1 includes any successor corporation under the Indenture referred to below), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of [ ] ($ ) on August 15, 2027 (the “Maturity Date”), unless previously redeemed, and to pay interest thereon from August 7, 2017 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, payable semiannually on February 15 and August 15 of each year (each, an “Interest Payment Date”), commencing February 15, 2018 at the rate of 3.500% per annum, until the principal hereof is paid or duly made available for payment. Interest shall be computed on the basis of a 360-day year of twelve 30-day months. The interest so payable and punctually paid or duly provided for on any Interest Payment Date will, as provided in the Indenture, be paid to the Person in whose name this Note (or one or more predecessor securities) is registered at the close of business on the regular record date for such interest, which shall be February 1 or August 1 (whether or not a Business Day), as the case may be, immediately preceding such Interest Payment Date. Any such interest which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date shall forthwith cease to be payable to the registered Holder hereof on the relevant regular record date by virtue of having been such Holder, and may be paid to the Person in whose name this Note (or one or more predecessor securities) is registered at the close of business on a subsequent special record date (which shall be not more than 15 days and not less than 10 days before the payment date) for the payment of such defaulted interest to be fixed by the Trustee, notice whereof shall be given to the Holders of Notes of this series not less than 10 days prior to such special record date, or may be paid at any time in any other lawful manner, all as more fully provided in such Indenture. If any Interest Payment Date, Redemption Date or the Maturity Date falls on a day that is not a Business Day, the required payment shall be made on the next Business Day as if it were made on the date such payment was due and no interest shall accrue on the amount so payable for the period from and after such Interest Payment Date, Redemption Date or the Maturity Date, as the case may be, to such next Business Day. Payments of principal, premium, if any, and interest hereunder shall be made in such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts and shall be made immediately available to the Holder (as defined below) hereof.
This Note is one of the duly authorized series of Debt Securities of the Company, designated as the Company’s “3.500% Notes due 2027” (the “Notes”), initially limited to an aggregate principal amount of $1,000,000,000, all issued or to be issued under and pursuant to an Indenture dated as of June 27, 1995 (the “Original Indenture”), as supplemented by the Sixteenth Supplemental Indenture dated as of August 7, 2017 (the “Sixteenth Supplemental Ihdenture” and, together with the Original Indenture, the “Indenture”), duly executed and delivered by the Company to The Bank ofNew York Mellon Trust Company, N.A, as trustee (hereinafter referred to as the “Trustee”), to which Indenture and all indentures supplemental thereto reference is hereby made for a description of the rights, limitation of rights, obligations, duties and immunities thereunder of the Trustee, the Company and the Holders (the words “Holders” or “Holder” meaning the registered holders or registered holder of the Notes).
Prior to the Par Call Date, this Note will be redeemable at the option of the Company, in whole at any time or in part from time to time, at a Redemption Price equal to the greater of (i) 100% of the principal amount of this Note to be redeemed and (ii) the sum, as determined by the Quotation Agent, of the present values of the principal amount of this Note to be redeemed and the remaining scheduled payments of interest on the principal amount of this Note to be redeemed (assuming that this Note matured on the Par Call Date), exclusive of interest accrued to the Redemption Date, in each case, discounted from their respective scheduled payment dates to the Redemption Date on a semiannual basis (assunung a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as defined below) plus 20 basis points, plus accrued and unpaid interest thereon to, but not including, the Redemption Date. On or after the Par Call Date, this Note will be redeemable at the option of the Company, in whole at any time or in part from time to time, at a Redemption Price equal to 100% of the principal amount of this Note being redeemed, plus accrued and unpaid interest thereon to, but not including, the Redemption Date.
“Comparable Treasury Issue” means, with respect to this Note subject to redemption, the United States Treasury security selected by the Quotation Agent as having an actual or interpolated maturity comparable to the remaining life of this Note to be redeemed (assuming that this Note matured on the Par Call Date) that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity with the remaining life of this Note to be redeemed (assuming, for this purpose, that this Note matured on the Par Call Date).
“Comparable Treasury Price” means, with respect to any Redemption Date, the average of five Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and lowest of such Reference Treasury Dealer Quotations, or, if the Quotation Agent obtains fewer than five such Reference Treasury Dealer Quotations, the average of all such quotations.
“Par Call Date” means May 15, 2027.
“Quotation Agent” means the Reference Treasury Dealer appointed by the Company.
“Reference Treasury Dealer” means, with respect to any Redemption Date, (i) J.P. Morgan Securities LLC, RBC Capital Markets, LLC and Wells Fargo Securities, LLC, and each of their respective successors and (ii) two other nationally recognized investment banking firms (or their respective affiliates) that the Company selects in connection with such Redemption Date, and each of their respective successors; provided, however, that if any of the foregoing shall cease, to be a U.S. government securities dealer in the United States (a “Primary Treasury Dealer”), the Company will substitute another Primary Treasury Dealer.
“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and any Redemption Date, the average, as determined by the Quotation Agent, of the bid and asked prices for the Comparable Treasury Issue, expressed in each case as a percentage of its principal amount, quoted in writing to the Quotation Agent by such Reference Treasury Dealer at 3:30 p.m., New York City time, on the third Business Day preceding such Redemption Date.
“Treasury Rate” means, with respect to any Redemption Date, the rate per annum equal to the semi-annual or equivalent yield to maturity or interpolated (on a day-count basis) of the Comparable Treasury Issue, calculated on the third Business Day preceding such Redemption Date using a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such Redemption Date.
If money sufficient to pay the Redemption Price and accrued and unpaid interest on the principal amount of this Note to be redeemed on the Redemption Date is deposited with the Trustee or Paying Agent on or before the Redemption Date and certain other conditions specified in the Indenture are satisfied, then on or after such date, interest will cease to accrue on the principal amount of this Note called for redemption.
Notice of any redemption will be mailed at least 30 days but not more than 60 days before the Redemption Date to the Holder hereof at its registered address.
Except as provided above, this Note is not redeemable by the Company prior to maturity. This Note is not subject to any sinking fund.
Upon the occurrence of a Change of Control Repurchase Event, unless the Company has redeemed this Note or the Company has defeased this Security or satisfied and discharged this Note, the Holder of this Note shall have the right to require that the Company purchase all or a portion (such principal amount to be equal to $2,000 or integral multiples of $1,000 in excess thereof), of this Note at a purchase price in cash in an amount equal to 101% of the principal amount thereof, plus accrued but unpaid interest, if any, to, but not including, the date of purchase. Within 30 days following any Change of Control Repurchase Event, the Company shall deliver a notice to each Holder, in accordance with Section 40l(b) of the Supplemental Indenture, with a copy to the Trustee, which notice shall govern the terms of the Change of Control Offer. Notice of any redemption pursuant to the Change of Control Offer will be mailed at least 30 days but not more than 60 days before the Redemption Date to the Holder hereof at its registered address.
In case an Event of Default shall occur and be continuing, the principal hereof may be declared, and upon such declaration shall become, due and payable, in the manner, with the effect and subject to the conditions provided in the Indenture.
Subject to certain exceptions set forth in the Indenture, (i) the Indenture may be amended with respect to the Notes with the consent of the Holders of at least a majority in principal amount outstanding of the Notes and (ii) any default or noncompliance with any provisions applicable to the Notes may be waived with the consent of the Holders of a majority in principal amount outstanding of the Notes. Subject to certain exceptions set forth in the Indenture, without the consent of any Holder, the Company and the Trustee may amend the Indenture or the Notes to, among other things, cure any ambiguity, defect or inconsistency, or to provide for the assumption by a successor person of the obligations of the Company under the Indenture, or to add additional covenants or surrender any right or power conferred on the Company, or to establish the form or terms of the Notes of any series, or to appoint a successor Trustee or provide for administration of the trust by more than one Trustee, or to add to, delete from or revise the conditions, limitations, and restrictions on the authorized amount, terms or purposes of issue, authentication and delivery of the Notes or to add any additional event of default, or to modify the provisions of the Indenture as shall be necessary to facilitate the defeasance and discharge of the Notes as shall not adversely affect any Holders, or to secure the Notes, or to make provisions with respect to exchange rights of Holders, or to make any change that does not adversely affect the rights of any Holder.
Subject to certain conditions, the Company at any time may terminate some or all of its obligations under the Notes and the Indenture if the Company deposits with the Trustee money or U.S. Government Obligations for the payment of principal, premium, if any, and interest on the Notes to the Maturity Date.
If money for the payment of principal or interest remains unclaimed for two years, the Trustee or Paying Agent shall pay the money back to the Company at its request unless an abandoned property law designates another Person. After any such payment, Holders entitled to the money must look only to the Company and not to the Trustee for payment.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and premium, if any, and interest on this Note at the place, at the respective times, at the rate, and in the coin or currency herein prescribed.
No director, officer, employee or stockholder, as such, of the Company shall have any liability for any obligations of the Company under this Note or the Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. Each Holder, by accepting this Note, waives and releases all such liability. The waiver and release are part of the consideration for the issue of this Note.
This Note and the Indenture shall be governed by and construed in accordance with the law of the State of New York applicable to agreements made or instruments entered into and, in each case, performed in said state.
Ownership of this Note shall be proved by the register for the Notes kept by the Registrar. The Company, the Trustee and any agent of the Company may treat the Person in whose name a Note is registered as the absolute owner thereof for all purposes.
Pursuant to a recommendation promulgated by the Committee on Uniform Securities Identification Procedures (“CUSIP”), the Company has caused a CUSIP number to be printed on this Note and has directed the Trustee to use the CUSIP number as a convenience to Holders. No representation is made as to the correctness of such numbers and reliance may be placed only on the other identification numbers printed on this Note.
Terms used herein without definition that are defined in the Indenture shall have the meanings assigned to them in the Indenture.
Unless the Certificate of Authentication hereon has been executed by the Trustee under the Indenture referred to herein by the manual signature of one of its authorized officers, or on behalf of the Trustee by the manual signature of an authorized officer of the Trustee’s authenticating agent, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed, manually or by facsimile.
Date:
| COX COMMUNICATIONS, INC. | ||
| By: | ||
| Name: | ||
| Title: | ||
| By: | ||
| Name: | ||
| Title: | ||
CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated therein referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
as Trustee
| By: | ||
| Authorized Signatory | ||
Dated:
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby sell(s) assign(s) and transfer(s) unto
________________________________________________________________
Please insert social security number 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 ____________attorney to transfer said Note of Cox Communications, Inc. on the books of Cox Communications, Inc. 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 this Note in every particular without alteration or enlargement or any change whatsoever. The Signature must be guaranteed by an “eligible guarantor institution meeting the requirements of the Registrar, which requirements include memberships or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934.
EXHIBIT A-2(iii)
[FORM OF FACE OF SECURITY] [TRANSFER RESTRICTION LEGEND]
[THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS A NON-U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION WITHIN THE MEANING OF REGULATIONS UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH THE LAWS APPLICABLE TO SUCH PURCHASER IN THE JURISDICTION IN WHICH SUCH PURCHASE IS MADE AND (2) AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) THAT IS 40 DAYS AFTER THE LATER OF THE ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATIONS UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH THE LAWS APPLICABLE TO IT IN THE JURISDICTION IN WHICH SUCH PURCHASE IS MADE, (D) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY’S AND THE TRUSTEE’S, OR REGISTRAR’S, AS APPLICABLE, RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (C) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE FOREGOING CASES, A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE OR REGISTRAR. THIS LEGEND WILL BE REMOVED UPON THE WRITTEN REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE. BY ITS ACQUISITION HEREOF, THE HOLDER HEREOF REPRESENTS THAT IT IS NOT A U.S. PERSON NOR IS IT PURCHASING FOR THE ACCOUNT OF A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATIONS UNDER THE SECURITIES ACT.
THIS GLOBAL NOTE IS A TEMPORARY GLOBAL NOTE FOR PURPOSES OF REGULATIONS UNDER THE SECURITIES ACT. NEITHER THIS TEMPORARY GLOBAL NOTE NOR ANY INTEREST HEREIN MAY BE OFFERED, SOLD OR DELIVERED, EXCEPT AS PERMITTED UNDER THE INDENTURE REFERRED TO BELOW.]
[GLOBAL NOTES LEGEND]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON 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.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS, IN WHOLE BUT NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN ARTICLE TWO OF THE SIXTEENTH SUPPLEMENTAL INDENTURE REFERRED TO ON THE REVERSE HEREOF.]
| No. R- | PRINCIPAL AMOUNT |
| CUSIP No. U22018 AV4 | $ |
COX COMMUNICATIONS, INC.
4.600% Notes due 2047
COX COMMUNICATIONS, INC., a Delaware corporation (hereinafter called the “Company,” which term includes any successor corporation under the Indenture referred to below), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of [ ] ($ ) on August 15, 2047 (the “Maturity Date”), unless previously redeemed, and to pay interest thereon from August 7, 2017 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, payable semiannually on February 15 and August 15 of each year (each, an “Interest Payment Date”), commencing February 15, 2018 at the rate of 4.600% per annum, until the principal hereof is paid or duly made available for payment. Interest shall be computed on the basis of a 360-day year of twelve 30-day months. The interest so payable and punctually paid or duly provided for on any Interest Payment Date will, as provided in the Indenture, be paid to the Person in whose name this Note (or one or more predecessor securities) is registered at the close of business on the regular record date for such interest, which shall be February 1 or August 1 (whether or not a Business Day), as the case may be, immediately preceding such Interest Payment Date. Any such interest which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date shall forthwith cease to be payable to the registered Holder hereof on the relevant regular record date by virtue of having been such Holder, and may be paid to the Person in whose name this Note (or one or more predecessor securities) is registered at the close of business on a subsequent special record date (which shall be not more than 15 days and not less than 10 days before the payment date) for the payment of such defaulted interest to be fixed by the Trustee, notice whereof shall be given to the Holders of Notes of this series not less than 10 days prior to such special record date, or may be paid at any time in any other lawful manner, all as more fully provided in such Indenture. If any Interest Payment Date, Redemption Date or the Maturity Date falls on a day that is not a Business Day, the required payment shall be made on the next Business Day as if it were made on the date such payment was due and no interest shall accrue on the amount so payable for the period from and after such Interest Payment Date, Redemption Date or the Maturity Date, as the case may be, to such next Business Day. Payments of principal, premium, if any, and interest hereunder shall be made in such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts and shall be made immediately available to the Holder (as defined below) hereof.
This Note is one of the duly authorized series of Debt Securities of the Company, designated as the Company’s “4.600% Notes due 2047” (the “Notes”), initially limited to an aggregate principal amount of $600,000,000, all issued or to be issued under and pursuant to an Indenture dated as of June 27, 1995 (the “Original Indenture”), as supplemented by the Sixteenth Supplemental Indenture dated as of August 7, 2017 (the “Sixteenth Supplemental Indenture” and, together with the Original Indenture, the “Indenture”), duly executed and delivered by the Company to The Bank of New York Mellon Trust Company, N.A, as trustee (hereinafter referred to as the “Trustee”), to which Indenture and all indentures supplemental thereto reference is hereby made for a description of the rights, limitation of rights, obligations, duties and immunities thereunder of the Trustee, the Company and the Holders (the words “Holders” or “Holder” meaning the registered holders or registered holder of the Notes).
Prior to the Par Call Date, this Note will be redeemable at the option of the Company, in whole at any time or in part from time to time, at a Redemption Price equal to the greater of (i) 100% of the principal amount of this Note to be redeemed and (ii) the sum, as determined by the Quotation Agent, of the present values of the principal amount of this Note to be redeemed and the remaining scheduled payments of interest on the principal amount of this Note to be redeemed (assuming that this Note matured on the Par Call Date), exclusive of interest accrued to the Redemption Date, in each case, discounted from their respective scheduled payment dates to the Redemption Date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as defined below) plus 30 basis points, plus accrued and unpaid interest thereon to, but not including, the Redemption Date. On or after the Par Call Date, this Note will be redeemable at the option of the Company, in whole at any time or in part from time to time, at a Redemption Price equal to 100% of the principal amount of this Note being redeemed, plus accrued and unpaid interest thereon to, but not including, the Redemption Date.
“Comparable Treasury Issue” means, with respect to this Note subject to redemption, the United States Treasury security selected by the Quotation Agent as having an actual or interpolated maturity comparable to the remaining life of this Note to be redeemed (assuming that this Note matured on the Par Call Date) that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity with the remaining life of this Note to be redeemed (assuming, for this purpose, that this Note matured on the Par Call Date).
“Comparable Treasury Price” means, with respect to any Redemption Date, the average of five Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and lowest of such Reference Treasury Dealer Quotations, or, if the Quotation Agent obtains fewer than five such Reference Treasury Dealer Quotations, the average of all such quotations.
“Par Call Date” means February 15, 2047.
“Quotation Agent” means the Reference Treasury Dealer appointed by the Company.
“Reference Treasury Dealer” means, with respect to any Redemption Date, (i) J.P. Morgan Securities LLC, RBC Capital Markets, LLC and Wells Fargo Securities, LLC, and each of their respective successors and (ii) two other nationally recognized investment banking firms (or their respective affiliates) that the Company selects in connection with such Redemption Date, and each of their respective successors; provided, however, that if any of the foregoing shall cease to be a U.S. government securities dealer in the United States (a “Primary Treasury Dealer”), the Company will substitute another Primary Treasury Dealer.
“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and any Redemption Date, the average, as determined by the Quotation Agent, of the bid and asked prices for the Comparable Treasury Issue, expressed in each case as a percentage of its principal amount, quoted in writing to the Quotation Agent by such Reference Treasury Dealer at 3:30 p.m., New York City time, on the third Business Day preceding such Redemption Date.
“Treasury Rate” means, with respect to any Redemption Date, the rate per annum equal to the semi-annual or equivalent yield to maturity or interpolated (on a day-count basis) of the Comparable Treasury Issue, calculated on the third Business Day preceding such Redemption Date using a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such Redemption Date.
If money sufficient to pay the Redemption Price and accrued and unpaid interest on the principal amount of this Note to be redeemed on the Redemption Date is deposited with the Trustee or Paying Agent on or before the Redemption Date and certain other conditions specified in the Indenture are satisfied, then on or after such date, interest will cease to accrue on the principal amount of this Note called for redemption.
Notice of any redemption will be mailed at least 30 days but not more than 60 days before the Redemption Date to the Holder hereof at its registered address.
Except as provided above, this Note is not redeemable by the Company prior to maturity.
This Note is not subject to any sinking fund.
Upon the occurrence of a Change of Control Repurchase Event, unless the Company has redeemed this Note or the Company has defeased this Security or satisfied and discharged this Note, the Holder of this Note shall have the right to require that the Company purchase all or a portion (such principal amount to be equal to $2,000 or integral multiples of $1,000 in excess thereof), of this Note at a purchase price in cash in an amount equal to 101% of the principal amount thereof, plus accrued but unpaid interest, if any, to, but not including, the date of purchase. Within 30 days following any Change of Control Repurchase Event, the Company shall deliver a notice to each Holder, in accordance with Section 40l(b) of the Supplemental Indenture, with a copy to the Trustee, which notice shall govern the terms of the Change of Control Offer. Notice of any redemption pursuant to the Change of Control Offer will be mailed at least 30 days but not more than 60 days before the Redemption Date to the Holder hereof at its registered address.
In case an Event of Default shall occur and be continuing, the principal hereof may be declared, and upon such declaration shall become, due and payable, in the manner, with the effect and subject to the conditions provided in the Indenture.
Subject to certain exceptions set forth in the Indenture, (i) the Indenture may be amended with respect to the Notes with the consent of the Holders of at least a majority in principal amount outstanding of the Notes and (ii) any default or noncompliance with any provisions applicable to the Notes may be waived with the consent of the Holders of a majority in principal amount outstanding of the Notes. Subject to certain exceptions set forth in the Indenture, without the consent of any Holder, the Company and the Trustee may amend the Indenture or the Notes to, among other things, cure any ambiguity, defect or inconsistency, or to provide for the assumption by a successor person of the obligations of the Company under the Indenture, or to add additional covenants or surrender any right or power conferred on the Company, or to establish the form or terms of the Notes of any series, or to appoint a successor Trustee or provide for administration of the trust by more than one Trustee, or to add to, delete from or revise the conditions, limitations, and restrictions on the authorized amount, terms or purposes of issue, authentication and delivery of the Notes or to add any additional event of default, or to modify the provisions of the Indenture as shall be necessary to facilitate the defeasance and discharge of the Notes as shall not adversely affect any Holders, or to secure the Notes, or to make provisions with respect to exchange rights of Holders, or to make any change that does not adversely affect the rights of any Holder.
Subject to certain conditions, the Company at any time may terminate some or all of its obligations under the Notes and the Indenture if the Company deposits with the Trustee money or U.S. Government Obligations for the payment of principal, premium, if any, and interest on the Notes to the Maturity Date.
If money for the payment of principal or interest remains unclaimed for two years, the Trustee or Paying Agent shall pay the money back to the Company at its request unless an abandoned property law designates another Person. After any such payment, Holders entitled to the money must look only to the Company and not to the Trustee for payment.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and premium, if any, and interest on this Note at the place, at the respective times, at the rate, and in the coin or currency herein prescribed.
No director, officer, employee or stockholder, as such, of the Company shall have any liability for any obligations of the Company under this Note or the Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. Each Holder, by accepting this Note, waives and releases all such liability. The waiver and release are part of the consideration for the issue of this Note.
This Note and the Indenture shall be governed by and construed in accordance with the law of the State of New York applicable to agreements made or instruments entered into and, in each case, performed in said state.
Ownership of this Note shall be proved by the register for the Notes kept by the Registrar. The Company, the Trustee and any agent of the Company may treat the Person in whose name a Note is registered as the absolute owner thereof for all purposes.
Pursuant to a recommendation promulgated by the Committee on Uniform Securities Identification Procedures (“CUSIP”), the Company has caused a CUSIP number to be printed on this Note and has directed the Trustee to use the CUSIP number as a convenience to Holders. No representation is made as to the correctness of such numbers and reliance may be placed only on the other identification numbers printed on this Note.
Terms used herein without definition that are defined in the Indenture shall have the meanings assigned to them in the Indenture.
Unless the Certificate of Authentication hereon has been executed by the Trustee under the Indenture referred to herein by the manual signature of one of its authorized officers, or on behalf of the Trustee by the manual signature of an authorized officer of the Trustee’s authenticating agent, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed, manually or by facsimile.
Date:
| COX COMMUNICATIONS, INC. | ||
| By: | ||
| Name: | ||
| Title: | ||
| By: | ||
| Name: | ||
| Title: | ||
CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated therein referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
as Trustee
| By: | ||
| Authorized Signatory | ||
Dated:
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby sell(s) assign(s) and transfer(s) unto
________________________________________________________________
Please insert social security number 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 _________attorney to transfer said Note of Cox Communications, Inc. on the books of Cox Communications, Inc. 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 this Note in every particular without alteration or enlargement or any change whatsoever. The Signature must be guaranteed by an “eligible guarantor institution meeting the requirements of the Registrar, which requirements include memberships or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934.
EXHIBIT B-1
Transfer Certificate
In connection with a transfer of any of the $ __________principal amount of the ______% Notes due 20 _____(the “Notes”) of Cox Communications, Inc. (the “Company”) within the period prior to the expiration of the holding period applicable to the sales thereof under Rule 144 under the Securities Act of 1933, as amended (the “Securities Act”) (or any successor provision), the undersigned registered owner of this Note hereby certifies with respect to $ __________principal amount of the above-captioned securities presented or surrendered on the date hereof (the “Surrendered Notes”) for registration of transfer, or for exchange where the securities deliverable upon such exchange are to be registered in a name other than that of the undersigned registered owner (each such transaction being a “transfer”), that such transfer complies with the restrictive legend set forth on the face of the Surrendered Notes for the reason checked below:
| ¨ | The transfer of the Surrendered Notes is made to the Company or any Subsidiary thereof; |
| ¨ | The transfer of the Surrendered Notes complies with Rule 144A under the Securities Act; |
| ¨ | The transfer of the Surrendered Notes is pursuant to a registration statement which has been declared effective under the Securities Act; |
| ¨ | The transfer of the Surrendered Notes is pursuant to an offer and sale to a non-U.S. person that occurs outside the United States within the meaning of Regulation S under the Securities Act and in accordance with the laws applicable to it in the jurisdiction in which such purchase is made; |
| ¨ | The transfer of the Surrendered Notes is pursuant to another available exemption from the registration requirements of the Securities Act. |
and unless the box below is checked, the undersigned confirms that, to the undersigned’s knowledge, such Notes are not being transferred to an “affiliate” of the Company as defined in Rule 144 under the Securities Act (an “Affiliate”).
| ¨ | The transferee is an Affiliate of the Company. |
| DATE: ____________________ | |
| Signature(s) |
(If the registered owner is
a corporation, partnership
or fiduciary, the title of the Person signing on behalf
of such registered owner must be stated.)
B-1-1
EXHIBIT B-2
Form of Letter to be Delivered by Accredited Investors
Cox Communications, Inc.
6205-B Peachtree Dunwoody Road, NE
Atlanta, Georgia 30328
Attention: Treasurer
The Bank of New York Mellon Trust Company, N.A., as Registrar
10161 Centurion Parkway N.
Jacksonville, Florida 32256
Attention: Corporate Trust Office
Dear Sirs:
We are delivering this letter in connection with the proposed transfer of $ _________ principal amount of the _____% Notes due 20____ (the “Notes”) of Cox Communications, Inc. (the “Company”).
We hereby confirm that:
(i) we are an “accredited investor” within the meaning of Rule 501(a)(l), (2), (3) or (7) of Regulation D under the Securities Act of 1933, as amended (the “Securities Act”), or an entity in which all of the equity owners are accredited investors within the meaning of Rule 501(a)(l), (2), (3) or (7) of Regulation D under the Securities Act (an “Institutional Accredited Investor’’);
(ii) (A) the purchase of Notes by us is for our own account or for the account of one or more other Institutional Accredited Investors or as fiduciary for the account of one or more trusts, each of which is an “accredited investor” within the meaning of Rule 501(a)(7) under the Securities Act and for each of which we exercise sole investment discretion or (B) we are a “bank,” within the meaning of Section 3(a)(2) of the Securities Act, or a “savings and loan association” or other institution described in Section 3(a)(5)(A) of the Securities Act that is acquiring Notes as fiduciary for the account of one or more institutions for which we exercise sole investment discretion;
(iii) we will acquire Notes having a minimum principal amount of not less than $100,000 for our own account or for any separate account for which we are acting;
(iv) we have such knowledge and experience in financial and business matters that we are capable of evaluating the merits and risks of purchasing Notes; and
(v) we are not acquiring Notes with a view to distribution thereof or with any present intention of offering or selling Notes, except as permitted below; provided that the disposition of our property and property of any accounts for which we are acting as fiduciary shall remain at all times within our control.
B-2-1
We understand that the Notes were originally offered and sold in a transaction not involving any public offering within the United States within the meaning of the Securities Act and that the Notes have not been registered under the Securities Act, and we agree, on our own behalf and on behalf of each account for which we acquire any Notes, that we will offer, sell or otherwise transfer such Notes, or any beneficial interest therein, prior to the end of the period (the “Resale Restriction Period”) from the date of original issuance until (a) the date that is one year after the later of (x) the date of the original issuance of the Notes or (y) the last day on which the Issuer or any of its Affiliates was the owner of the Notes, and (b) such later date, if any, as may be required by applicable laws only:
(1) to the Company or any Subsidiary thereof, or
(2) for as long as the Notes are eligible for resale pursuant to Rule 144A, to a person we reasonably believe is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) that purchases for its own account or for the account of a qualified institutional buyer to which notice is given that the transfer is being made in reliance on Rule 144A, or
(3) pursuant to offers and sales to non-U.S. persons that occur outside the United States within the meaning of Regulation S under the Securities Act and in accordance with the laws applicable to us in the jurisdiction in which such purchase is made, or
(4) pursuant to a registration statement which has been declared effective under the Securities Act, or
(5) pursuant to another available exemption from the registration requirements of the Securities Act.
We acknowledge that the Company, others and you will rely upon our confirmations, acknowledgments and agreements set forth herein, and we agree to notify you promptly in writing if any of our representations or warranties herein ceases to be accurate and complete.
B-2-2
THIS LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK.
| (Name of Purchaser) | ||
| By: | ||
| Name: | ||
| Title: | ||
| Address: | ||
B-2-3
Exhibit 4.15
EXECUTION VERSION
COX COMMUNICATIONS, INC.,
as Issuer
COX ENTERPRISES, INC.,
as Guarantor
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
as Trustee
EIGHTEENTH SUPPLEMENTAL INDENTURE
Dated as of September 17, 2020
Supplement to Indenture
Dated as of June 27, 1995
Creating two series of Debt Securities designated
1.800% Notes due 2030
2.950% Notes due 2050
EIGHTEENTH SUPPLEMENTAL INDENTURE, dated as of the 17th day of September, 2020, among COX COMMUNICATIONS, INC., a corporation existing under the laws of the State of Delaware, having its principal executive office located at 6205-B Peachtree Dunwoody Road, NE, Atlanta, Georgia 30328 (the “Company”), COX ENTERPRISES, INC., a corporation existing under the laws of the State of Delaware, having its principal executive office located at 6205-A Peachtree Dunwoody Road, NE, Atlanta, Georgia 30328 (the “Guarantor”), and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., a national banking association, having a designated corporate trust office located at 500 Ross Street, 12th Floor, Pittsburgh, Pennsylvania 15262, as trustee (the “Trustee”);
WHEREAS, the Company has heretofore executed and delivered to the Trustee an Indenture, dated as of June 27, 1995 (the “Original Indenture” and, as amended by this Supplemental Indenture, the “Indenture”), providing for the issuance by the Company from time to time of its debentures, notes, bonds or other evidences of indebtedness (in the Original Indenture and herein called the “Debt Securities”), unlimited as to principal amount, to be issued in one or more series;
WHEREAS, the Company, in the exercise of the power and authority conferred upon and reserved to it under the provisions of the Original Indenture and pursuant to appropriate resolutions of the Company’s Board of Directors, and the Guarantor, pursuant to appropriate resolutions of the Guarantor’s Board of Directors, have duly determined to make, execute and deliver to the Trustee this Supplemental Indenture to the Original Indenture in order (i) to establish the form and terms of, and to provide for the creation and issuance of, two new series of Debt Securities designated as the “1.800% Notes due 2030” in the initial aggregate principal amount of $750,000,000 (the “2030 Notes”) and the “2.950% Notes due 2050” in the initial aggregate principal amount of $750,000,000 (the “2050 Notes” and, together with the 2030 Notes, the “Notes”) and (ii) to establish the terms of, and to provide for the grant of, full and unconditional guarantees (the “Guarantees”) by the Guarantor of the Company’s obligations with respect to the Notes and the Company’s obligations under the Indenture in respect thereof;
WHEREAS, Section 9.01 of the Original Indenture provides, among other things, that the Company and the Trustee, at any time and from time to time, without the consent of any Holders, may enter into an indenture supplemental to the Original Indenture to establish the form or terms of Debt Securities of any series as permitted by Sections 2.01 and 2.03 of the Original Indenture and to add guarantees with respect to the Debt Securities of any series;
WHEREAS, all things necessary to make the Notes, when executed by the Company and authenticated and delivered by the Trustee and issued upon the terms and subject to the conditions hereinafter and in the Original Indenture set forth against payment therefor, the valid, binding and legal obligations of the Company and to make this Supplemental Indenture a valid, binding and legal agreement of the Company and the Guarantor, have been done;
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH that, in order to establish the form and terms of the series of Debt Securities designated as the “1.800% Notes due 2030” and the “2.950% Notes due 2050” and to provide for the Guarantees in respect thereof and for and in consideration of the premises and of the covenants contained in
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the Original Indenture and in this Supplemental Indenture and for other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of the Notes of each series, as follows:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101 Definitions. For all purposes of the Original Indenture and this Supplemental Indenture relating to each series of Debt Securities (consisting of the Notes) created hereby and the Guarantees in respect thereof, except as otherwise expressly provided or unless the context otherwise requires, the terms defined in this Article have the meanings assigned to them in this Article. Each capitalized term that is used in the Original Indenture and this Supplemental Indenture but not defined herein shall have the meaning specified in the Original Indenture.
“Additional Notes” has the meaning specified in Section 202 of this Supplemental Indenture.
“Agent Members” has the meaning specified in Section 209(e)(v) of this Supplemental Indenture.
“Applicable Procedures” means, with respect to any transfer or transaction involving a Global Note or beneficial interest therein, the rules and procedures of the Depositary for such Note, in each case to the extent applicable to such transaction and as in effect from time to time.
“Below Investment Grade Downgrade Event” means, with respect to either series of Notes, the rating on such Notes is lowered in respect of a Change of Control and such Notes are rated below an Investment Grade Rating by each of the Rating Agencies on any date from the first public announcement by the Company of any Change of Control (or pending Change of Control) and ending 60 days following consummation of such Change of Control (which period shall be extended until the ratings are announced if, during such 60-day period, the rating of such Notes is under publicly announced consideration for possible downgrade by each of the Rating Agencies); provided that a Below Investment Grade Downgrade Event otherwise arising by virtue of a particular reduction in rating shall not be deemed to have occurred in respect of a particular Change of Control (and thus shall not be deemed a Below Investment Grade Downgrade Event for purposes of the definition of Change of Control Repurchase Event hereunder) if the Rating Agencies making the reduction in rating to which this definition would otherwise apply do not announce or publicly confirm or inform the Company in writing at its request that the reduction was the result, in whole or in part, of any event or circumstance comprised of or arising as a result of, or in respect of, the applicable Change of Control (whether or not the applicable Change of Control shall have occurred at the time of the Below Investment Grade Downgrade Event). The Company shall request the Rating Agencies to make such confirmation in connection with any Change of Control and shall promptly certify to the Trustee as to whether or not such confirmation has been received or denied.
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“Business Day” means any day other than a Saturday, a Sunday or a legal holiday or a day on which banking institutions or trust companies in The City of New York are authorized or obligated by law to close.
“Capital Stock” of any Person means any and all shares, interests, participations, rights in or other equivalents (however designated) of such Person’s capital stock, other equity interests whether now outstanding or issued after the Issue Date, partnership interests (whether general or limited), limited liability company interests, any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person, including any preferred stock, and any rights (other than debt securities convertible into, or exchangeable for or valued by reference to, Capital Stock until and unless any such debt security is converted into Capital Stock), warrants or options exchangeable for or convertible into such Capital Stock.
“cash” means U.S. legal tender.
“Certificated Notes” means the Notes issued in certificated, registered form without interest coupons and not required to bear the Legend set forth in Section 207(a)(ii) of this Supplemental Indenture.
“Change of Control” means the occurrence of any of the following events:
(1) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act), other than one or more Permitted Holders, becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that a Person shall be deemed to have beneficial ownership of all shares that such Person has the right to acquire, whether such right is exercisable immediately or only after the passage of time), directly or indirectly, of more than 50% of the total outstanding Voting Stock of the Company;
(2) the Company sells, assigns, conveys, transfers, leases or otherwise disposes of (other than by way of merger or consolidation) all or substantially all of its and its Subsidiaries’ assets taken as a whole to any Person, other than any such transaction where:
| (A) | the transferee is a Person controlled, directly or indirectly, by one or more Permitted Holders; or |
| (B) | following such transaction, each transferee becomes an obligor in respect of the Notes and either (i) each transferee is or becomes a Subsidiary of the transferor of such assets or (ii) the holders of the Voting Stock of the Company immediately prior to such transaction own, directly or indirectly, not less than a majority of the Voting Stock of the transferee immediately after such transaction; |
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(3) the Company consolidates with or merges with or into any Person or any Person consolidates with or merges into or with the Company, in any such event pursuant to a transaction in which the outstanding Voting Stock of the Company is converted into or exchanged for cash, securities or other property, other than any such transaction where:
| (A) | the surviving corporation is a Person controlled, directly or indirectly, by one or more Permitted Holders; or |
| (B) | (i) the outstanding Voting Stock of the Company is changed into or exchanged for Voting Stock of the surviving corporation (or any direct or indirect parent company of the surviving corporation) and (ii) the holders of the Voting Stock of the Company immediately prior to such transaction own, directly or indirectly, not less than a majority of the Voting Stock of the surviving corporation immediately after such transaction; or |
| (4) | the adoption of a plan relating to the liquidation or dissolution of the Company. |
Notwithstanding the foregoing, a transaction will not be deemed to involve a Change of Control if (i) Cox becomes a direct or indirect wholly owned subsidiary of a holding company and (ii) the direct or indirect holders of the Voting Stock of Cox immediately prior to such transaction own, directly or indirectly, at least a majority of the Voting Stock of such holding company.
“Change of Control Repurchase Event” means, with respect to either series of Notes, the occurrence of a Change of Control together with a Below Investment Grade Downgrade Event with respect to such series of Notes. Notwithstanding the foregoing, no Change of Control Repurchase Event will be deemed to have occurred in connection with any particular Change of Control unless and until such Change of Control has actually been consummated.
“Clearstream” means Clearstream Banking, S.A. (formerly Cedelbank).
“Corporate Trust Office” means 500 Ross Street, 12th Floor, Pittsburgh, Pennsylvania 15262 or such other address as the Trustee may designate from time to time by notice to the Holders and the Company, or the principal corporate trust office of any successor Trustee (or such other address as such successor Trustee may designate from time to time by notice to the Holders and the Company).
“Cox Descendants” means the lineal descendants of Governor James M. Cox.
“Cox Family Charities” means charitable organizations of which Cox Family Individuals constitute at least a majority of the trustees, members or directors thereof.
“Cox Family Individuals” means (a) the Cox Descendants and (b) the spouses and surviving spouses of Cox Descendants.
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“Cox Family Members” means (a) Cox Family Individuals, (b) Cox Family Trusts, (c) Cox Family Charities or (d) corporations, partnerships, limited partnerships, limited liability companies or any other Person beneficially owned in whole or in part by one or more Cox Family Individuals or Cox Family Trusts or Cox Family Charities; provided that, with respect to clauses (b) and (d), in the case of a Cox Family Trust, a majority of the trustees are Cox Family Individuals, in the case of a general or limited partnership, Cox Family Individuals own, directly or indirectly, more than 50% of the interests or general partner interests, in the case of a limited liability company, Cox Family Individuals hold, directly or indirectly, more than 50% of the vote of the managers, and in the case of any other Person, one or more Cox Family Individuals is the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of more than 50% of the Voting Stock, measured by voting power rather than number of shares, of such Person.
“Cox Family Trusts” means trusts established by or for the benefit of any one or more Cox Family Individuals.
“Credit Agreement” means the Second Amended and Restated Credit Agreement dated as of November 10, 2010, and as amended and restated as of March 28, 2014 and December 13, 2018 (and as may be further amended, supplemented or otherwise modified from time to time), among the Company, the Guarantor, JPMorgan Chase Bank, N.A., as administrative agent, and the lenders from time to time party thereto.
“Debt Securities” has the meaning specified in the first recital hereof.
“Depositary” means, with respect to the Notes issuable in whole or in part in global form, DTC and any nominee thereof, until a successor shall have been appointed and become such pursuant to the applicable provisions of the Indenture, and thereafter “Depositary” shall mean or include such successor and any nominee thereof.
“Distribution Compliance Period” means the 40-day distribution compliance period as defined in Regulation S, or such later date, if any, as may be required by applicable laws.
“DTC” means The Depository Trust Company.
“Electronic Means” shall mean the following communications methods: S.W.I.F.T., e-mail, facsimile transmission, secure electronic transmission containing applicable authorization codes, passwords and/or authentication keys issued by the Trustee, or another method or system specified by the Trustee as available for use in connection with its services hereunder.
“Euroclear” means the Euroclear Bank SA/NV.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Fitch” means Fitch Ratings, Inc. or any successor to the rating agency business thereof.
“Global Note” means a Note issued in global form, bearing the legends set forth in Section 207(a)(ii) of this Supplemental Indenture, and deposited with or on behalf of the Depositary.
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“Guarantee” or “Guarantees” has the meaning specified in the recitals hereof.
“Guarantor” has the meaning specified in the first paragraph hereof.
“Holder” and “Noteholder,” in the case of any Note, means the Person in whose name such Note is registered in the Debt Security Register.
“Institutional Accredited Investor” means an institutional “accredited investor” as defined in Rule 501(a)(l), (2), (3) and (7) under the Securities Act.
“Interest Payment Date,” in respect of any Note, has the meaning assigned to it in such Note.
“Investment Grade Rating” means (a) with respect to Moody’s, a rating equal to or higher than Baa3 (or the equivalent), and (b) with respect to S&P and Fitch, a rating equal to or higher than BBB- (or the equivalent) (or, in each case, if such Rating Agency ceases to rate the Notes for reasons outside of the Company’s control, the equivalent investment grade credit rating from any Rating Agency selected by the Company as a replacement Rating Agency).
“Issue Date” means September 17, 2020.
“Legend” means the Transfer Restriction Legend as defined in Section 207(c) of this Supplemental Indenture.
“Moody’s” means Moody’ s Investors Service, Inc. or any successor to the rating agency business thereof.
“Notes” has the meaning specified in the recitals hereof.
“Permitted Holders” means (a) the Cox Family Members, (b) the Guarantor and its affiliates, including any successor Person to the Guarantor that owns, directly or indirectly, 100% of the Capital Stock of the Company and such successor Person’s affiliates, and (c) any “group” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act) of the foregoing with respect to which any such Persons exercise a majority of voting power.
“Purchase Agreement” means the Purchase Agreement, dated September 10, 2020, among the Company and Citigroup Global Markets Inc., J.P. Morgan Securities LLC and Wells Fargo Securities, LLC, acting as representatives on behalf of the Initial Purchasers (as defined therein).
“Qualified Institutional Buyer” has the meaning specified in Rule 144A.
“Rating Agencies” means:
| (1) | S&P; |
| (2) | Moody’s; and |
| (3) | Fitch; |
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provided, that if S&P, Moody’s or Fitch or all three shall not make a rating of the Notes of either series publicly available, a “nationally recognized statistical rating organization” within the meaning of Section 3(a)(62) of the Exchange Act, selected by the Company, which shall be substituted for S&P, Moody’ s or Fitch or all three, as the case may be.
“Redemption Date”, with respect to any Note or portion thereof to be redeemed, means the date fixed for redemption in accordance with the terms of such Note and Article III of the Original Indenture.
“Redemption Price”, with respect to any Note or portion thereof to be redeemed, means the price at which it is to be redeemed as determined in accordance with the terms of the applicable Note and Article III of the Original Indenture.
“Regulation S” means Regulation S under the Securities Act.
“Regulation S Global Note” means a Regulation S Temporary Global Note or Regulation S Permanent Global Note, as applicable.
“Regulation S Permanent Global Note” means a permanent Global Note in the form of the Note attached hereto as Exhibits A-2(i) or A-2(ii), as applicable, and that is deposited with and registered in the name of the Depositary, issued in a denomination equal to the outstanding principal amount of the Regulation S Temporary Global Note upon expiration of the Distribution Compliance Period.
“Regulation S Temporary Global Note” means a temporary Global Note in the form of the Note attached hereto as Exhibit A-2(i) or A-2(ii), as applicable, and that is deposited with and registered in the name of the Depositary, representing Notes sold in offshore transactions in reliance on Regulation S.
“Resale Restriction Termination Date” means (1) in the case of U.S. Global Notes, the date that is one year after the latest of (a) the Issue Date, (b) the original issue date of the issuance of any Additional Notes of such series and (c) the last date on which the Company or any of its Affiliates were the owner of such Notes or, in the case of Regulation S Notes, the date that is 40 days after the latest of (a) the Issue Date, (b) the original issue date of the issuance of any Additional Notes of such series and (c) the date on which such Notes were first offered to persons other than distributors in reliance on Regulation S and (2) such later date, if any, as may be required by applicable laws.
“Restricted Note” means a Note required to bear the Transfer Restriction Legend pursuant to Section 207(c) of this Supplemental Indenture and set forth on the forms of Notes attached as Exhibits A-1(i), A-1(ii), A-2(i) or A-2(ii), as applicable, to this Supplemental Indenture.
“Rule 144A” means Rule 144A under the Securities Act (or any successor provision), as it may be amended from time to time.
“S&P” means S&P Global Ratings, a division of S&P Global, Inc., or any successor to the rating agency business thereof.
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“Securities Act” means the Securities Act of 1933, as amended.
“Supplemental Indenture” means this Eighteenth Supplemental Indenture.
“Termination Date” has the meaning set forth in Section 501(f) of this Supplemental Indenture.
“Transfer Restriction Legend” has the meaning specified in Section 207(c) of this Supplemental Indenture.
“Trustee” has the meaning specified in the first paragraph hereof.
“U.S. Global Note” means a Global Note in the form of the Note attached hereto as Exhibits A-l(i) or A- l(ii), as applicable, to this Supplemental Indenture, and that is deposited with and registered in the name of the Depositary, representing Notes sold in reliance on Rule 144A.
“Voting Stock” of a Person means Capital Stock of such Person of the class or classes pursuant to which the holders thereof have the general voting power under ordinary circumstances to elect at least a majority of the board of directors, managers or trustees of such Person (irrespective of whether or not at the time Capital Stock of any other class or classes shall have or might have voting power by reason of the happening of any contingency).
SECTION 102 Section References. Each reference to a particular section set forth in this Supplemental Indenture shall, unless the context otherwise requires, refer to this Supplemental Indenture.
SECTION 103 Effect of Supplemental Indenture. Except as set forth below and except as expressly amended hereby, the Original Indenture shall continue in full force and effect in accordance with the provisions thereof, and the Original Indenture is in all respects hereby ratified and confirmed. This Supplemental Indenture and all its provisions shall be deemed a part of the Original Indenture in the manner and to the extent herein and therein provided. The Original Indenture and this Supplemental Indenture shall be read, taken and construed as one and the same instrument.
This Supplemental Indenture amends and supplements and, to the extent inconsistent therewith, replaces the provisions of the Original Indenture, to which provisions reference is hereby made. For the avoidance of doubt, the provisions of Section 206 hereof amend Section 3.03 of the Original Indenture as set forth in such Section 206; the provisions of Section 210 hereof amend Section 6.01 of the Original Indenture as set forth in such Section 210; the provisions of Section 211 hereof amend Section 7.06 of the Original Indenture as set forth in such Section 211; the provisions of Section 212 hereof amend Section 7 .07 of the Original Indenture as set forth in such Section 212; the provisions of Section 213 hereof amend Section 7.08 of the Original Indenture as set forth in such Section 213; the provisions of Sections 214 and 215 hereof amend Section 9.01 of the Original Indenture as set forth in such Sections 214 and 215; the provisions of Article 3 hereof replace the provisions of Section 5.03 of the Original Indenture in their entirety; the provisions of Section 402 hereof replace the provisions of Section 4.08 of this Original Indenture in their entirety; the provisions of Section 403 hereof replace the provisions of Section 4.09 of the Original Indenture in their entirety; and the provisions of Article 6 hereof amend the provisions of Section 7.02 of the Original Indenture as set forth in such Article 6.
8
The amendments and supplements to, and replacements of the provisions of, the Original Indenture effected by this Supplemental Indenture shall be applicable only with respect to, and govern the terms of, the Debt Securities issued pursuant to this Supplemental Indenture and the Guarantees in respect thereof, and shall not apply to any other Debt Securities that have been or may be issued under the Original Indenture unless a supplemental indenture with respect to such other Debt Securities specifically incorporates such amendments, supplements and replacements.
The provisions of Article XI of the Original Indenture shall apply to the Notes.
ARTICLE 2
THE NOTES
SECTION 201 Title of the Notes. The 2030 Notes and 2050 Notes shall be known and designated as the “l.800% Notes due 2030” and the “2.950% Notes due 2050” of the Company, respectively.
SECTION 202 Amount. The aggregate principal amount of Notes that may be authenticated and delivered under this Supplemental Indenture is initially limited to $750,000,000 for the 2030 Notes and $750,000,000 for the 2050 Notes, in each case, except for Notes authenticated and delivered upon registration of, transfer of, or exchange for, or in lieu of, other Notes pursuant to Section 2.07, 2.08, 2.09 or 9.04 of the Indenture, or upon repayment in part of any 2030 Note or 2050 Note pursuant to Article III of the Original Indenture. The Company may, from time to time, subject to compliance with any other applicable provisions of this Supplemental Indenture but without the consent of the Holders of any series of Notes, create and issue pursuant to this Supplemental Indenture an unlimited principal amount of additional Notes of such series (in excess of any amounts theretofore issued) having the same terms and conditions to those of the other outstanding Notes of such series (“Additional Notes”); provided that any such Additional Notes (i) may have a different issue date and issue price from other outstanding Notes of such series and (ii) may have a different amount of interest payable on the first Interest Payment Date after issuance than the amount payable on other outstanding Notes of such series; provided further, that in the event such Additional Notes are not fungible with the applicable Notes issued on the Issue Date for U.S. federal income tax purposes, such Additional Notes will be issued with a separate CUSIP number.
SECTION 203 Stated Maturity. The Stated Maturity of the 2030 Notes shall be October 1, 2030. The Stated Maturity of the 2050 Notes shall be October 1, 2050.
SECTION 204 Interest.
(a) The 2030 Notes shall bear cash interest at the rate of 1.800% per annum from September 17, 2020 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, payable semiannually in arrears on April 1 and October 1 of each year, beginning on April 1, 2021, to the Persons in whose names such Notes are registered at the close of business on the immediately preceding March 15 or September 15, as the case may be, whether or not a Business Day. Interest on the Notes will be computed on the basis of a 360-day year of twelve 30-day months.
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(b) The 2050 Notes shall bear cash interest at the rate of 2.950% per annum from September 17, 2020 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, payable semiannually in arrears on April 1 and October 1 of each year, beginning on April 1, 2021, to the Persons in whose names such Notes are registered at the close of business on the immediately preceding March 15 or September 15, as the case may be, whether or not a Business Day. Interest on the Notes will be computed on the basis of a 360-day year of twelve 30-day months.
SECTION 205 Payments.
(a) Payments of principal, premium, if any, and interest on the Notes will be made to the Depositary, or its nominee, as the case may be, as the registered owner and holder of the Global Notes representing the Notes. In the event that the Notes are issued in the form of Certificated Notes, payments of principal, premium, if any, and interest thereon will be at the office or agency of the Trustee in the City of New York designated for such purpose; provided that, with respect to definitive Certificated Notes only, payment of interest, other than interest payable at Stated Maturity or upon redemption, may be made at the option of the Company, by the Trustee to the address of the Person entitled as shown on the register for such Debt Securities.
(b) If any date of Stated Maturity, Redemption Date or Interest Payment Date falls on a day that is not a Business Day, the required payment shall be made on the next Business Day, and no interest shall accrue on the amount so payable for the period between such payment date and the next Business Day.
(c) Payments of principal, premium, if any, and interest on the Notes shall be made in cash or such other coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debt.
SECTION 206 Redemption. Each series of Notes shall be redeemable, in whole or in part, on one or more Redemption Dates at the applicable Redemption Price. If the Redemption Date is not an Interest Payment Date, the amount of the scheduled interest payment on the next succeeding Interest Payment Date will be reduced by the amount of interest accrued to the Redemption Date. In connection with any redemption, notice of the redemption will be delivered at least 15 days but not more than 60 days prior to the applicable Redemption Date to the Holders of the Notes of such series by first-class mail or delivered electronically if held by DTC, to the address of such Holder appearing in the security register or otherwise in accordance with the procedures of DTC. Without limiting the other provisions of Section 3.03 of the Original Indenture, any notice of redemption may, at the Company’s discretion, be subject to the satisfaction of one or more conditions precedent, and if such notice of redemption is conditioned upon the occurrence of one or more conditions precedent, such notice shall state the nature of such conditions precedent. At the Company’s request, the Trustee shall give the notice of redemption in the Company’s name and at the Company’s expense. In such event, the Company shall provide the Trustee with the information required by this Section and the Original Indenture relating to such redemption.
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SECTION 207 Forms; Denominations. The Notes shall be Registered Securities. The Global Notes representing the Notes shall be in substantially the forms attached hereto as Exhibits A-l(i), A- l(ii), A-2(i) or A-2(ii), as applicable.
The Notes are being offered and sold by the Company pursuant to the Purchase Agreement.
(a) Global Notes. (i) Notes offered and sold in reliance on Rule 144A as provided in the Purchase Agreement shall be issued initially in the form of one or more U.S. Global Notes in definitive fully registered form without interest coupons, deposited on behalf of the subscribers for the Notes represented thereby with the Trustee, as custodian for the Depositary and registered in the name of DTC or a nominee thereof, duly executed by the Company and authenticated by the Trustee as provided in the Indenture. The aggregate principal amount of the U.S. Global Notes may from time to time be increased or decreased by adjustments made on the records of the Trustee and the Depositary as hereinafter provided.
Notes offered and sold in offshore transactions in reliance on Regulation S as provided in the Purchase Agreement shall be issued initially in the form of one or more Regulation S Temporary Global Notes in definitive fully registered form without interest coupons, deposited on behalf of the subscribers for the Notes represented thereby with the Trustee, as custodian for the Depositary, for the accounts of Euroclear and Clearstream and registered in the name of DTC or a nominee thereof, duly executed by the Company and authenticated by the Trustee as hereinafter provided. The Distribution Compliance Period shall be terminated upon the receipt by the Trustee of a written certificate from the Depositary, if available, together with copies of certificates from Euroclear and Clearstream, if available, certifying that they have received certification of non-United States beneficial ownership of 100% of the aggregate principal amount of the Regulation S Temporary Global Note (except to the extent of any beneficial owners thereof who acquired an interest therein during the Restricted Period pursuant to another exemption from registration under the Securities Act and who shall take delivery of a beneficial ownership interest in a U.S. Global Note bearing a Legend, all as contemplated by Section 209(a)(iii) hereof).
Following the termination of the Distribution Compliance Period, beneficial interests in the Regulation S Temporary Global Note shall be exchanged for beneficial interests in the Regulation S Permanent Global Note pursuant to the Applicable Procedures. Simultaneously with the authentication of the Regulation S Permanent Global Note, the Trustee shall cancel the Regulation S Temporary Global Note. The aggregate principal amount of the Regulation S Temporary Global Note and the Regulation S Permanent Global Note may from time to time be increased or decreased by adjustments made on the records of the Trustee and the Depositary as hereinafter provided.
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Each Global Note shall represent such of the outstanding Notes as shall be specified therein and each shall provide that it shall represent the aggregate principal amount of outstanding Notes from time to time endorsed thereon and the aggregate principal amount of outstanding Notes represented thereby may from time to time be reduced to reflect exchanges or redemptions. Any adjustment of the aggregate principal amount of a Global Note representing the Notes to reflect the amount of any decrease in the principal amount of outstanding Notes represented thereby shall be made by the Trustee in accordance with instructions given by the Holder thereof as required by Section 209 hereof and shall be made on the records of the Trustee and the Depositary.
(ii) Book-Entry Provisions. This Section 207(a)(ii) shall apply only to Global Notes.
The Company shall execute and the Trustee shall, in accordance with this Section 207(a)(ii) and Section 2.02 of the Indenture, authenticate and deliver initially one or more Global Notes that (a) shall be registered in the name of the Depositary, (b) shall be delivered by the Trustee to the Depositary or pursuant to the Depositary’s instructions and (c) shall bear legends substantially to the following effect:
“UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON 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.
“TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS, IN WHOLE BUT NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN ARTICLE TWO OF THE EIGHTEENTH SUPPLEMENTAL INDENTURE REFERRED TO ON THE REVERSE HEREOF.”
(b) Certificated Notes. Except as otherwise set forth in this Supplemental Indenture, owners of beneficial interests in Global Notes will not be entitled to receive physical delivery of Certificated Notes. Beneficial interests in a Global Note transferred in accordance with Section 209(a)(ii) to an Institutional Accredited Investor who is not a Qualified Institutional Buyer and beneficial interests in a Global Note transferred to the beneficial holders thereof pursuant to Section 209(e) will be issued in certificated, registered form without interest coupons.
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(c) Restrictive Legends. Prior to the Resale Restriction Termination Date, all Global Notes and all Certificated Notes issued in exchange for a beneficial interest in a Global Note shall bear a legend (the “Transfer Restriction Legend”) in substantially the following form, unless such Notes have been sold pursuant to a registration statement that has been declared effective under the Securities Act:
“THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
“THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS A NON-U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH THE LAWS APPLICABLE TO SUCH PURCHASER IN THE JURISDICTION IN WHICH SUCH PURCHASE IS MADE AND (2) AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) THAT IS, IN THE CASE OF U.S. GLOBAL NOTES: ONE YEAR AFTER THE LATEST OF THE ISSUE DATE HEREOF, THE ORIGINAL ISSUE DATE OF THE ISSUANCE OF ANY ADDITIONAL NOTES AND THE LAST DATE ON WHICH THE COMPANY OR ANY OF ITS AFFILIATES WERE THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), OR IN THE CASE OF REGULATION S GLOBAL NOTES: 40 DAYS AFTER THE LATEST OF THE ISSUE DATE HEREOF, THE ORIGINAL ISSUE DATE OF THE ISSUANCE OF ANY ADDITIONAL NOTES AND THE DATE ON WHICH THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) WAS FIRST OFFERED TO PERSONS OTHER THAN DISTRIBUTORS IN RELIANCE ON REGULATION S, ONLY (A) TO THE COMPANY, THE GUARANTOR OR ANY SUBSIDIARY THEREOF, (B) FOR SO LONG AS THE SECURlTIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH THE LAWS APPLICABLE TO IT IN THE JURISDICTION IN WHICH SUCH PURCHASE IS MADE, (D) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY’S AND THE TRUSTEE’S, OR REGISTRAR’S, AS APPLICABLE, RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (C) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE FOREGOING CASES, A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE OR REGISTRAR. THIS LEGEND WILL BE REMOVED UPON THE WRITTEN REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE. IN THE CASE OF REGULATION S GLOBAL NOTES: BY ITS ACQUISITION HEREOF, THE HOLDER HEREOF REPRESENTS THAT IT IS NOT A U.S. PERSON NOR IS IT PURCHASING FOR THE ACCOUNT OF A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT.
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“IN THE CASE OF REGULATION S TEMPORARY GLOBAL NOTES: THIS GLOBAL NOTE IS A TEMPORARY GLOBAL NOTE FOR PURPOSES OF REGULATION S UNDER THE SECURITIES ACT. NEITHER THIS TEMPORARY GLOBAL NOTE NOR ANY INTEREST HEREIN MAY BE OFFERED, SOLD OR DELIVERED, EXCEPT AS PERMITTED UNDER THE INDENTURE REFERRED TO BELOW.”
SECTION 208 Transfer and Exchange.
(a) Notwithstanding any provision to the contrary herein, so long as a Global Note remains Outstanding and is held by or on behalf of the Depositary, transfers of such Global Note, in whole or in part, shall be made only in accordance with Section 209 and this Section 208.
(b) Transfers of a Global Note shall be limited to transfers of such Global Note in whole, or in part, to nominees of the Depositary or to a successor of the Depositary or such successor’s nominee.
(c) If Notes are issued upon the transfer, exchange or replacement of Notes subject to restrictions on transfer and bearing a Legend, or if a request is made to remove the Legend on a Note, the Notes so issued shall bear the Legend, or the Legend shall not be removed, as the case may be, unless there is delivered to the Company and the Registrar such satisfactory evidence, which shall include an opinion of counsel, as may be reasonably required by the Company and the Registrar, that neither the Legend nor the restrictions on transfer set forth therein are required to ensure that transfers thereof comply with the provisions of Rule 144A, Rule 144 or Regulation S under the Securities Act, that such Notes are not “restricted” within the meaning of Rule 144 under the Securities Act or that any such exchange or replacement Notes have been issued in a registered transaction under the Securities Act. Upon (i) provision of such satisfactory evidence, or (ii) notification by the Company to the Trustee and the Registrar of the sale or exchange of such Notes pursuant to a registration statement that is effective at the time of such sale, the Trustee, at the written direction of the Company, shall authenticate and deliver a Note that does not bear the Legend. If the Legend is removed from the face of a Note and the Note is subsequently held by an Affiliate of the Company, the Legend shall be reinstated.
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The Trustee and the Registrar shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Supplemental Indenture or under applicable law with respect to any transfer of any interest in any Note (including transfers between or among the Depositary’s participants or beneficial owners of interest in any Global Note) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Supplemental Indenture and to examine the same to determine substantial compliance as to form with the express requirements hereof.
SECTION 209 Global Notes.
(a) Notwithstanding any other provisions of this Supplemental Indenture or the Notes, (A) transfers of a Global Note, in whole or in part, shall be made only in accordance with Section 2.07 of the Indenture and Sections 208 and 209(a)(i) below, (B) transfer of a beneficial interest in a Global Note for a Certificated Note shall comply with Section 2.07 of the Indenture and Section 209(a)(ii) below, (C) transfers of a beneficial interest in a Regulation S Global Note for a beneficial interest in a U.S. Global Note shall comply with Section 2.07 of the Indenture and Section 209(a)(iii) below, and (D) transfers of a Certificated Note shall comply with Section 2.07 of the Indenture and Sections 209(a)(iv) and (v) below.
(i) Transfer of Global Note. A Global Note may not be transferred, in whole or in part, to any Person other than the Depositary or a nominee thereof, and no such transfer to any such other Person may be registered; provided that this clause (i) shall not prohibit any transfer of a Note that is issued in exchange for a Global Note but is not itself a Global Note. No transfer of a Note to any Person shall be effective under the Indenture or the Notes unless and until such Note has been registered in the name of such Person. Nothing in this Section 209(a)(i) shall prohibit or render ineffective any transfer of a beneficial interest in a Global Note effected in accordance with the other provisions of this Section 209(a).
(ii) Restrictions on Transfer of a Beneficial Interest in a Global Note for a Certificated Note. A beneficial interest in a Global Note may not be exchanged for a Certificated Note except upon satisfaction of the requirements set forth below. Upon receipt by the Trustee of a request for transfer of a beneficial interest in a Global Note in accordance with Applicable Procedures for a Certificated Note in the form satisfactory to the Trustee, together with:
(a) so long as the Notes are Restricted Notes, certification, in the form set forth in Exhibit B-1 attached hereto, and, if requested by the Company or the Registrar, certification in the form set forth in Exhibit B-2 attached hereto, that such beneficial interest in the Global Note is being transferred to an Institutional Accredited Investor;
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(b) written instructions to the Trustee to make, or direct the Registrar to make, an adjustment on its books and records with respect to such Global Note to reflect a decrease in the aggregate principal amount of the Notes represented by the Global Note, such instructions to contain information regarding the Depositary account to be credited with such decrease; and
(c) if the Company or Registrar so requests, an opinion of counsel or other evidence reasonably satisfactory to them as to compliance with the restrictions set forth in the applicable Legend,
then the Trustee shall cause, or direct the Registrar to cause, in accordance with the standing instructions and procedures existing between the Depositary and the Registrar, the aggregate principal amount of Notes represented by the Global Note to be decreased by the aggregate principal amount of the Certificated Note to be issued, shall issue such Certificated Note and shall debit or cause to be debited to the account of the Person specified in such instructions a beneficial interest in the Global Note equal to the principal amount of the Certificated Note so issued.
(iii) Restrictions on Transfer of Beneficial Interest in a Regulation S Global Note for a Beneficial Interest in a U.S. Global Note.
(a) On or prior to the expiration of the Distribution Compliance Period, a beneficial interest in a Regulation S Global Note may be transferred to a Person who takes delivery in the form of an interest in the corresponding U.S. Global Note only upon receipt by the Trustee of a written certification from the transferor to the effect that such transfer is being made (i)(a) to a Person whom the transferor reasonably believes is a Qualified Institutional Buyer in a transaction meeting the requirements of Rule 144A or (b) pursuant to another exemption from the registration requirements under the Securities Act which is accompanied by an Opinion of Counsel regarding the availability of such exemption and (ii) in accordance with all applicable securities laws of any state of the United States or any other jurisdiction.
(b) Beneficial interests in the U.S. Global Note may be transferred to a Person who takes delivery in the form of an interest in the Regulation S Global Note, whether before or after the expiration of the Distribution Compliance Period, only if the transferor first delivers to the Trustee a written certificate to the effect that such transfer is being made in accordance with Rule 904 of Regulation S or Rule 144 (if available).
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(iv) Transfer and Exchange of Certificated Notes. When Certificated Notes are presented to the Registrar with a request:
(x) to register the transfer of such Certificated Notes; or
(y) to exchange such Certificated Notes for an equal principal amount of Certificated Notes of other authorized denominations,
the Registrar shall register the transfer or make the exchange as requested if its reasonable requirements for such transaction are met; provided, however, that the Certificated Notes surrendered for transfer or exchange:
(a) shall be duly endorsed or accompanied by a written instrument of transfer in form reasonably satisfactory to the Company and the Registrar, duly executed by the Holder thereof or his attorney duly authorized in writing; and
(b) so long as such Notes are Restricted Notes, such Notes are being transferred or exchanged pursuant to clause (A), (B) or (C) below, and are accompanied by the following additional information and documents, as applicable:
(A) if such Certificated Notes are being delivered to the Registrar by a Holder for registration in the name of such Holder, without transfer, a certification from such Holder to that effect; or
(B) if such Certificated Notes are being transferred to the Company, a certification to that effect; or
(C) if such Certificated Notes are being transferred pursuant to an exemption from registration, (i) a certification to that effect (in the form set forth in Exhibit B-1 and B-2, if applicable) and (ii) if the Company or Registrar so requests, an opinion of counsel or other evidence reasonably satisfactory to them as to the compliance with the restrictions set forth in the Transfer Restriction Legend.
(v) Restrictions on Transfer of a Certificated Note for a Beneficial Interest in a Global Note. A Certificated Note may not be exchanged for a beneficial interest in a Global Note except upon satisfaction of the requirements set forth below.
Upon receipt by the Trustee of a Certificated Note, duly endorsed or accompanied by appropriate instruments of transfer, in form satisfactory to the Trustee, together with:
(x) so long as the Notes are Restricted Notes, certification, in the form set forth in Exhibit B-1, that such Certificated Note is being transferred to a Qualified Institutional Buyer in accordance with Rule 144A; and
(y) written instructions directing the Trustee to make, or to direct the Registrar to make, an adjustment on its books and records with respect to such Global Note to reflect an increase in the aggregate principal amount of the Notes represented by the Global Note, such instructions to contain information regarding the Depositary account to be credited with such increase,
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then the Trustee shall cancel such Certificated Note and cause, or direct the Registrar to cause, in accordance with the standing instructions and procedures existing between the Depositary and the Registrar, the aggregate principal amount of Notes represented by the Global Note to be increased by the aggregate principal amount of the Certificated Note to be exchanged, and shall credit or cause to be credited to the account of the Person specified in such instructions a beneficial interest in the Global Note equal to the principal amount of the Certificated Note so cancelled. If no Global Notes are then Outstanding, the Company shall issue and the Trustee shall authenticate, upon receipt of a Company Order, a new Global Note in the appropriate principal amount.
(b) Subject to the succeeding paragraph, every Note shall be subject to the restrictions on transfer provided in the applicable Legend including the delivery of an opinion of counsel, if so provided. Whenever any Restricted Note is presented or surrendered for registration of transfer or for exchange for a Note registered in a name other than that of the Holder, such Note must be accompanied by a certificate in substantially the form set forth in Exhibit B-1, dated the date of such surrender and signed by the Holder of such Note, as to compliance with such restrictions on transfer. The Registrar shall not be required to accept for such registration of transfer or exchange any Note not so accompanied by a properly completed certificate.
(c) The restrictions imposed by the Transfer Restriction Legend upon the transferability of any Restricted Note shall cease and terminate when such Note has been sold or exchanged pursuant to an effective registration statement under the Securities Act or may be transferred in compliance with Rule 144 under the Securities Act (or any successor provision thereto). Any Note as to which such restrictions on transfer shall have expired in accordance with their terms or shall have terminated may, upon a surrender of such Note for exchange to the Registrar in accordance with the provisions of this Section 209 (accompanied, in the event that such restrictions on transfer have terminated by reason of a transfer in compliance with Rule 144 or any successor provision, by an opinion of counsel having substantial experience in practice under the Securities Act and otherwise reasonably acceptable to the Company, addressed to the Company, the Trustee and the Registrar and in form acceptable to the Company, to the effect that the transfer of such Note has been made in compliance with Rule 144 or such successor provision), be exchanged for a new Note, of like tenor and aggregate principal amount, which shall not bear the Transfer Restriction Legend. The Company shall inform the Trustee of the effective date of any registration statement registering the Notes under the Securities Act. The Trustee shall not be liable for any action taken or omitted to be taken by it in good faith in accordance with the aforementioned opinion of counsel.
(d) As used in the preceding two paragraphs of this Section 209, the term “transfer” encompasses any sale, pledge, transfer, hypothecation or other disposition of any Note.
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(e) The provisions of clauses (i), (ii), (iii), (iv), and (v) below shall apply only to Global Notes:
(i) Notwithstanding any other provisions of the Indenture or the Notes, except as provided in Section 209(a)(ii), a Global Note shall not be exchanged in whole or in part for a Note registered in the name of any Person other than the Depositary or one or more nominees thereof, provided that a Global Note may be exchanged for Certificated Notes registered in the names of any Person designated by the Depositary in the event that (A) the Depositary has notified the Company that it is unwilling or unable to continue as depositary for such Global Note or the Depositary has ceased to be a “clearing agency” registered under the Exchange Act, and a successor Depositary is not appointed by the Company within 90 days or (B) an Event of Default has occurred and is continuing with respect to the Notes. Any Global Note exchanged pursuant to clause (A) above shall be so exchanged in whole and not in part, and any Global Note exchanged pursuant to clause (B) above may be exchanged in whole or from time to time in part as directed by the Depositary. Prior to the issuance of Certificated Notes in exchange for any beneficial interests in a Regulation S Global Note, the holder of such beneficial interests shall, as a condition to such exchange, certify in a form satisfactory to the Company that such holder is a non-U.S. person (as that term is defined in Regulation S under the Securities Act) or a U.S. person who purchased such beneficial interest in a transaction that did not require registration under the Securities Act. In the event that Certificated Notes are issued in respect of beneficial interests in a Regulation S Global Note at any time prior to the end of the Distribution Compliance Period (other than in a transaction subject to Rule 144A), the Company shall as promptly as practicable, institute procedures, including appropriate certifications, reasonably designed to ensure that any transfer of such Certificated Notes prior to the end of the Distribution Compliance Period is made only in accordance with the provisions of Regulation S, pursuant to registration under the Securities Act or pursuant to an exemption from such registration.
(ii) Notes issued in exchange for a Global Note or any portion thereof shall be issued in definitive, fully registered form, without interest coupons, shall have an aggregate principal amount equal to that of such Global Note or portion thereof to be so exchanged, shall be registered in such names and be in such authorized denominations as the Depositary shall designate and shall bear the applicable Legend. Any Global Note to be exchanged in whole shall be surrendered by the Depositary to the Trustee, as Registrar. With regard to any Global Note to be exchanged in part, either such Global Note shall be so surrendered for exchange or, if the Trustee is acting as custodian for the Depositary or its nominee with respect to such Global Note, the principal amount thereof shall be reduced, by an amount equal to the portion thereof to be so exchanged, by means of an appropriate adjustment made on the records of the Trustee. Upon any such surrender or adjustment, the Trustee shall authenticate and deliver the Note issuable on such exchange to or upon the order of the Depositary or an authorized representative thereof.
(iii) Subject to the provisions of clause (v) below, the registered Holder may grant proxies and otherwise authorize any Person, including Agent Members (as defined below) and Persons that may hold interests through Agent Members, to take any action which a Holder is entitled to take under the Indenture or the Notes.
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(iv) In the event of the occurrence of any of the events specified in clause (i) above, the Company will promptly make available to the Trustee a reasonable supply of Certificated Notes.
(v) Neither any members of, or participants in, the Depositary (collectively, the “Agent Members”) nor any other Persons on whose behalf Agent Members may act shall have any rights under the Indenture with respect to any Global Note registered in the name of the Depositary or any nominee thereof, or under any such Global Note, and the Depositary or such nominee, as the case may be, may be treated by the Company, the Trustee and any agent of the Company or the Trustee as the absolute owner and holder of such Global Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee or any agent of the Company or the Trustee from giving effect to any written certification, proxy or other authorization furnished by the Depositary or such nominee, as the case may be, or impair, as between the Depositary, its Agent Members and any other Person on whose behalf an Agent Member may act, the operation of customary practices of such Persons governing the exercise of the rights of a Holder of any Note.
SECTION 210 Events of Default. For purposes of this Supplemental Indenture and the Notes issued hereunder, Section 6.01 of the Original Indenture is hereby amended by deleting the clause immediately following subsection (i) in the first sentence of such Section and inserting in its place the following:
then and in each and every case that an Event of Default described in clause (a), (b), (c), (d), (e), (f), (g) (with respect to Restricted Subsidiaries only), (h) (with respect to Restricted Subsidiaries only) or (i) with respect to Debt Securities of that series at the time Outstanding occurs and is continuing, unless the principal of and interest on all the Debt Securities of that series shall have already become due and payable, either the Trustee or the Holders of not less than 25% in aggregate principal amount of the Debt Securities of that series then Outstanding hereunder, by notice in writing to the Company (and to the Trustee if given by Holders), may declare the principal of (or, if the Debt Securities of that series are Original Issue Discount Debt Securities, such portion of the principal amount as may be specified in the terms of that series) and interest on all the Debt Securities of that series to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything in this Indenture or in the Debt Securities or Coupons appertaining thereto of that series contained to the contrary notwithstanding.
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SECTION 211 Compensation and Reimbursement. For purposes of this Supplemental Indenture and the Notes issued hereunder, Section 7.06 of the Original Indenture is hereby amended to be replaced with the following:
The Company covenants and agrees to pay in Dollars to the Trustee such compensation as the Company and the Trustee shall from time to time agree in writing for all services rendered by it hereunder (which shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust), and, except as otherwise expressly provided herein, the Company will pay or reimburse in Dollars the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any of the provisions of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents, attorneys and counsel and of all Persons not regularly in its employ) except any such expense, disbursement or advances as may arise from its negligence or wilful misconduct. The Company also covenants to indemnify in Dollars each of the Trustee (which shall be deemed to include its officers, directors, employees, and agents) or any predecessor Trustee for, and to hold it harmless against, any loss, damage, claim, liability or expense, including the reasonable fees and expenses of counsel, and taxes (other than taxes based upon, measured by or determined by the income of the Trustee) incurred without negligence or wilful misconduct on the part of the Trustee, arising out of or in connection with the acceptance or administration of this trust or trusts hereunder, including the reasonable costs and expenses of defending itself against any claim of liability in connection with the exercise or performance of any of its powers or duties hereunder. The obligations of the Company under this Section 7.06 to compensate and indemnify the Trustee and to pay or reimburse the Trustee for expenses, disbursements and advances shall constitute additional indebtedness hereunder and shall survive the resignation or removal of the Trustee and/or the satisfaction and discharge of this Indenture. The Company and the Holders agree that such additional indebtedness shall be secured by a Lien prior to that of the Debt Securities and Coupons, if any, upon all property and funds held or collected by the Trustee, as such, except funds held in trust for the payment of principal of, and premium, if any, or interest on, particular Debt Securities and Coupons.
SECTION 212 Right of Trustee to Rely on an Officers’ Certificate Where No Other Evidence Specifically Prescribed. With respect to the Notes, Section 7.07 of the Original Indenture is hereby amended to be replaced with the following:
Except as otherwise provided in Section 7.01, whenever in the administration of the provisions of this Indenture the Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering or omitting any action hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) may, be deemed to be conclusively proved and established by an Officers’ Certificate delivered to the Trustee, and such certificate shall be full warrant to the Trustee for any action taken, suffered or omitted by it under the provisions of this Indenture.
SECTION 213 Separate Trustee; Replacement of Trustee. With respect to the Notes, Section 7.08 of the Original Indenture is hereby amended to be replaced with the following:
The Company may, but need not, appoint a separate Trustee for any one or more series of Debt Securities. The Trustee may resign with respect to one or more or all series of Debt Securities at any time by giving 30 days’ notice to the Company. The Holders of a majority in principal amount of the Debt Securities of a particular series may remove the Trustee for such series and only such series by so notifying the Trustee and may appoint a successor Trustee with 30 days’ notice. The Company shall remove the Trustee with 30 days’ notice if:
| (1) | the Trustee fails to comply with Section 7.10; |
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| (2) | the Trustee is adjudged bankrupt or insolvent; |
| (3) | a receiver or other public officer takes charge of the Trustee or its property; or |
| (4) | the Trustee otherwise becomes incapable of acting. |
If the Trustee resigns, is removed by the Company or by the Holders of a majority in principal amount of the Debt Securities of a particular series and such Holders do not reasonably promptly appoint a successor Trustee, or if a vacancy exists in the office of Trustee for any reason (the Trustee in such event being referred to herein as the retiring Trustee), the Company shall promptly appoint a successor Trustee. No resignation or removal of the Trustee and no appointment of a successor Trustee shall become effective until the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of this Section 7.08.
A successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Company. Thereupon the resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee under this Indenture. The successor Trustee shall send a notice of its succession to Holders of Debt Securities of each applicable series. The retiring Trustee shall promptly transfer all property held by it as Trustee to the successor Trustee, subject to the Lien provided for in Section 7.06.
If a successor Trustee does not take office within 30 days after the retiring Trustee resigns or is removed, the retiring Trustee or the Holders of 25% in principal amount of the Debt Securities of any applicable series may petition, at the expense of the Company, any court of competent jurisdiction for the appointment of a successor Trustee for the Debt Securities of such series.
If the Trustee fails to comply with Section 7.10, any Holder of Debt Securities of any applicable series may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee for the Debt Securities of such series.
Notwithstanding the replacement of the Trustee pursuant to this Section 7.08, the Company’s obligations under Section 7.06 shall continue for the benefit of the retiring Trustee.
In the case of the appointment hereunder of a separate or successor trustee with respect to the Debt Securities of one or more series, the Company, any retiring Trustee and each successor or separate Trustee with respect to the Debt Securities of any applicable series shall execute and deliver an indenture supplemental hereto (1) which shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of any retiring Trustee with respect to the Debt Securities of any series as to which any such retiring Trustee is not retiring shall continue to be vested in such retiring Trustee and (2) that shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trustee hereunder by more than one trustee, it being understood that nothing herein or in such supplemental Indenture shall constitute such Trustees co-trustees of the same trust and that each such separate, retiring or successor Trustee shall be Trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee.
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SECTION 214 With respect to the Notes, Section 9.0l(f) of the Original Indenture is hereby deleted in its entirety and replaced with “[Reserved]” in lieu thereof.
SECTION 215 With respect to the Notes, the last paragraph of Section 9.01 of the Original Indenture is hereby deleted in its entirety and replaced with the following:
After an amendment under the Indenture becomes effective with respect to the Notes of a particular series, the Company is required to deliver to Holders of the Notes of such series, by first-class mail or delivered electronically if held by DTC, to the address of such Holder appearing in the security register or otherwise in accordance with the procedures of DTC, a notice briefly describing such amendment. However, the Company’s failure to give such notice to all Holders of the Notes of such series, or any defect in such notice, will not impair or affect the validity of the amendment.
ARTICLE 3
REPORTS BY THE COMPANY
So long as any of the Debt Securities are “restricted securities” within the meaning of Rule 144(a)(3) under the Securities Act, the Company will, during any period in which it is not subject to Sections 13 or 15(d) of the Exchange Act or it is not exempt from such reporting requirements pursuant to and in compliance with Rule 12g3-2(b) under the Exchange Act, provide to each Holder of Notes and to each prospective purchaser (as designated by such Holder) of Notes, upon the request of such Holder or prospective purchaser, any information required to be provided by Rule 144A(d)(4) under the Securities Act.
ARTICLE 4
ADDITIONAL COVENANTS
SECTION 401 Purchase of Notes Upon a Change of Control Repurchase Event.
(a) If a Change of Control Repurchase Event occurs with respect to either series of Notes, each Holder of the Notes of such series will have the right to require that the Company purchase all or any part (in denominations of $2,000 and integral multiples of $1,000 in excess thereof) of such Holder’s Notes of such series pursuant to a Change of Control offer (a “Change of Control Offer”) on the terms set forth in this Supplemental Indenture, except that the Company shall not be obligated to repurchase the Notes of such series pursuant to this Section 401 in the event that the Company has exercised the right to redeem all of the Notes of such series as described in Section 206. In the Change of Control Offer with respect to either series of Notes, the Company will offer to purchase all of the Notes of such series at a purchase price (the “Change of Control Purchase Price”) in cash in an amount equal to 101% of the principal amount of such series of Notes, plus accrued but unpaid interest, if any, to, but not including, the date of purchase (the “Change of Control Purchase Date”) (subject to the rights of Holders of record on the relevant record date to receive interest due on the relevant Interest Payment Date if such Notes have not been repurchased prior to such record date).
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(b) Within 30 days after any Change of Control Repurchase Event with respect to either series of Notes or, at the Company’s option, prior to such Change of Control but after the public announcement of such pending Change of Control, the Company must notify the Trustee of such series of Notes and give written notice of the Change of Control Repurchase Event to the Trustee and each Holder of Notes of such series, by first-class mail or delivered electronically if held by DTC, to the address of such Holder appearing in the security register or otherwise in accordance with the procedures of DTC. The notice must state, among other things:
(1) that a Change of Control Repurchase Event has occurred or may occur with respect to such series of Notes and the date of such event;
(2) the purchase price and the purchase date which shall be fixed by the Company on a Business Day no earlier than 15 days nor later than 60 days from the date the notice is mailed or delivered electronically, other than as may be required by law;
(3) that any Note not tendered will continue to accrue interest;
(4) that, unless the Company defaults in the payment of the Change of Control Purchase Price, any Notes accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest after the Change of Control Purchase Date; and
(5) other procedures that a Holder of Notes must follow to accept a Change of Control Offer or to withdraw acceptance of the Change of Control Offer.
In addition, the notice, if sent prior to the date of the consummation of the Change of Control, will state that the Change of Control Offer is conditioned on the Change of Control being consummated on or prior to the Change of Control Purchase Date.
(c) If Holders of not less than 90% in aggregate principal amount of the outstanding Notes of an applicable series validly tender and do not withdraw such Notes in a Change of Control Offer and the Company, or any third party making a Change of Control Offer in lieu of the Company, as described in clause (d) below, purchases all of the Notes of such series validly tendered and not withdrawn by such Holders, the Company will have the right, upon not less than 15 nor more than 60 days’ prior notice, with such notice given not more than 30 days following the Change of Control Purchase Date, to redeem all Notes of such series that remain Outstanding following such purchase at a redemption price in cash equal to the Change of Control Purchase Price plus, to the extent not included in the Change of Control Purchase Price, accrued and unpaid interest, if any, on the Notes of such series that remain Outstanding to, but not including, the date of redemption (subject to the rights of Holders of record on relevant record dates to receive interest due on the relevant Interest Payment Date).
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(d) The Company will comply with Rule 14e-l under the Exchange Act, and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control Repurchase Event. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 401, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Section 401 by virtue of its compliance with such securities laws and regulations. The Company will not be required to make a Change of Control Offer upon a Change of Control Repurchase Event with respect to either series of Notes if a third party makes the Change of Control Offer with respect to such series of Notes in the manner, at the times and otherwise in compliance with the requirements described in this Supplemental Indenture applicable to a Change of Control Offer made by the Company and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer.
(e) On the Change of Control Purchase Date with respect to either series of Notes, the Company will, to the extent permitted by law:
(1) accept for payment all Notes of such series or portions thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Depositary or the Trustee, as applicable, an amount equal to the aggregate Change of Control Purchase Price in respect of all Notes of such series or portions thereof so tendered; and
(3) deliver, or cause to be delivered, to the Trustee for cancellation of the Notes of such series so accepted together with an Officers’ Certificate to the Trustee stating that such Notes or portions thereof have been tendered to and purchased by the Company.
SECTION 402 Limitation on Liens. With respect to the Notes, Section 4.08 of the Original Indenture is hereby amended to be replaced with the following:
As long as any Notes of any series remain Outstanding, the Company will not, and will not permit any Restricted Subsidiary to, create, incur or assume any Lien (other than Permitted Liens) on Restricted Property to secure the payment of Indebtedness of the Company or any Restricted Subsidiary if immediately after the creation, incurrence or assumption of such Lien, the aggregate outstanding principal amount of all Indebtedness of the Company and its Restricted Subsidiaries that is secured by Liens (other than Permitted Liens) on Restricted Property would exceed the greater of (i) $1,100,000,000 or (ii) 15% of the aggregate outstanding principal amount of all Indebtedness of the Company and its Restricted Subsidiaries (whether or not so secured), unless effective provision is made whereby the Notes of such series (together with, if the Company shall so determine, any other Indebtedness ranking equally with the Notes of such series, whether then existing or later created) are secured equally and ratably with (or prior to) such Indebtedness (but only for so long as such Indebtedness is so secured).
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SECTION 403 Limitation on Indebtedness of Restricted Subsidiaries. For purposes of this Supplemental Indenture and the Notes issued hereunder, Section 4.09 of the Original Indenture is hereby amended to be replaced with the following:
As long as any Notes of any series remain Outstanding, the Company will not permit any Restricted Subsidiary to incur or assume any Indebtedness if immediately after the incurrence or assumption of such Indebtedness, the aggregate outstanding principal amount of all Indebtedness of the Restricted Subsidiaries would exceed the greater of (i) $1,100,000,000 or (ii) 15% of the aggregate outstanding principal amount of all Indebtedness of the Company and its Restricted Subsidiaries; provided that in any event, a Restricted Subsidiary may incur Indebtedness to extend, renew or replace Indebtedness of such Restricted Subsidiary to the extent that the principal amount of the Indebtedness so incurred does not exceed the principal amount of the Indebtedness extended, renewed or replaced thereby immediately prior to such extension, renewal or replacement plus any premium, accrued and unpaid interest or capitalized interest payable thereon.
ARTICLE 5
SECTION 501 Guarantee.
(a) The Guarantor hereby fully and unconditionally guarantees the Notes of each series and the obligations of the Company thereunder and under the Indenture, and guarantees to each Holder of a Note of such series authenticated and delivered by the Trustee, and to the Trustee on behalf of such Holder, that (i) the principal of (and premium, if any) and interest on the Notes of such series will be paid in full when due, whether at Stated Maturity, by acceleration or otherwise (including, without limitation, the amount that would become due but for the operation of any automatic stay provision of any federal bankruptcy law), together with interest on the overdue principal, if any, and interest on any overdue interest, to the extent lawful, and all other obligations of the Company to the Holders or the Trustee under the Indenture or the Notes of such series will be paid in full or performed, all in accordance with the terms of the Indenture and the Notes of such series; and (ii) in case of any extension of time of payment or renewal of any Notes of such series or of any such other obligations, the same will be paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise.
(b) The Guarantor hereby agrees that, upon the occurrence of an Event of Default in payment of principal (or premium, if any) or interest on an applicable series of Notes, whether at Stated Maturity, by acceleration, purchase or otherwise, legal proceedings may be instituted by the Trustee on behalf of, or by, a Holder of such Notes of such series, subject to the terms and conditions set forth in the Indenture, directly against the Guarantor to enforce the Guarantee without first proceeding against the Company or any other guarantor. The Guarantor agrees that if, after the occurrence and during the continuance of an Event of Default with respect to an applicable series of Notes, the Trustee or any of the Holders are prevented by applicable law from exercising their respective rights to accelerate the maturity of the Notes of such series, to collect interest on the Notes of such series, or to enforce or exercise any other right or remedy with respect to the Notes of such series, the Guarantor will pay to the Trustee for the account of the Holders, upon demand therefor, the amount that would otherwise have been due and payable had such rights and remedies been permitted to be exercised by the Trustee or any of the Holders.
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(c) With respect to an applicable series of Notes, unless and until the Termination Date (as defined herein) has occurred, or the Guarantor shall be released in accordance with Section 504 of this Supplemental Indenture, to the fullest extent permitted by applicable law, the Guarantor shall remain obligated hereunder and the Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against the Company for liquidation or reorganization, should the Company become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Company’s assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Notes of such series are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Notes of such series, whether as a “voidable preference”, “fraudulent transfer” or otherwise, all as though such payment or performance had not been made. In the event that any payment, or any part thereof, is rescinded, reduced, restored or returned, the Notes of such series shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned.
(d) To the fullest extent permitted by applicable law, the Guarantor waives diligence, presentment, protest and notice of protest, demand for payment or performance, notice of default or nonpayment, notice of acceptance and any other notice in respect of the Company’s obligations under any series of Notes and under the Indenture, and any defense arising by reason of any disability or other defense of the Company or the Guarantor with respect to such obligations (other than the defense that the Termination Date has occurred or the Guarantor has been released in accordance with Section 504 of this Supplemental Indenture). The Guarantor understands and agrees that the Guarantee contained in this Article 5 shall be construed as a continuing, absolute and unconditional guarantee of payment and performance and not merely of collectability, and its Guarantee of a particular series of Notes and the obligations of the Company under the Indenture hereunder shall not be affected by, and shall remain in full force and effect without regard to, and hereby waives all rights, claims or defenses that it might otherwise have (now or in the future) with respect to each of the following (whether or not the Guarantor has knowledge thereof): (i) the validity, regularity or enforceability of the Notes of such series or the Indenture or the absence of any action to enforce the same, (ii) the recovery of any judgment against the Company or any action to enforce the same, (iii) any renewal, extension or acceleration of, or any increase in the amount of the Company’s obligations under such series of Notes and under the Indenture (whether or not any increase is committed, contemplated or provided for by the Indenture or the Notes of such series on the date hereof), (iii) any failure, omission or delay in enforcement (by agreement or otherwise), or the stay or enjoining (by court order, operation of law or otherwise) of the exercise of enforcement, of any claim or demand or any right, power or remedy (whether arising under the Indenture or the Notes of such series, at law, in equity or otherwise) with respect to the Company’s obligations under such series of Notes and under the Indenture or (iv) any other circumstance whatsoever (with or without notice to or knowledge of the Guarantor) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Guarantor under the Guarantee contained in this Article 5, in bankruptcy or in any other instance (in each case, other than the occurrence of the Termination Date or the release of the Guarantor in accordance with Section 504 of this Supplemental Indenture).
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(e) The Guarantor further agrees that, as between the Guarantor, on the one hand, and the Holders and the Trustee, on the other hand (i) subject to the terms and provisions of this Supplemental Indenture, the maturity of the obligations under an applicable series of Notes guaranteed hereby may be accelerated as provided in Article VI of the Original Indenture for the purposes of this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (ii) in the event of any acceleration of such obligations as provided in Article VI of the Original Indenture, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor for the purpose of this Guarantee.
(f) Subject to Section 504 of this Supplemental Indenture, the Guarantee of a series of Notes contained in this Article 5 shall remain in full force and effect until all the obligations of the Company under such series of Notes and under the Indenture shall have been satisfied by payment in full (such date, the “Termination Date”).
(g) The Guarantee by the Guarantor of a series of Notes shall be independent of and shall not be affected by the Guarantee by the Guarantor of any other series of Notes or other Debt Securities issued under the Indenture.
SECTION 502 Subrogation. The Guarantor shall be subrogated to all rights of Holders against the Company in respect of any amounts paid by the Guarantor pursuant to its Guarantee; provided, however, that if an Event of Default has occurred and is continuing with respect to a series of Notes, the Guarantor shall not be entitled to enforce or receive any payments arising out of, or based upon, such right of subrogation until all amounts then due and payable by the Company under the Indenture or the applicable series of Notes shall have been paid in full.
SECTION 503 Reinstatement. Subject to Section 504 of this Supplemental Indenture, the Guarantee of a series of Notes contained in this Article 5 shall continue to be effective, or be reinstated, as the case may be, if at any time payment, or any part thereof, of any of the Company’s obligations with respect to such series of Notes or the Indenture is rescinded or must otherwise be restored or returned by the Trustee or any Holder upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of the Guarantor, or upon or as a result of the appointment of a receiver, intervenor or conservator of, or trustee or similar officer for, the Guarantor or any substantial part of its property, or otherwise, all as though such payments had not been made.
SECTION 504 Release of Guarantee. (a) The Guarantor shall, upon the occurrence of any of the following events, be automatically and unconditionally released and discharged from all obligations with respect to the Notes of an applicable series, the Indenture and the Guarantee of such series of Notes without any action required on the part of the Trustee or any Holder:
(i) on the Termination Date;
(ii) upon the termination or release of the Company’s guarantee of the Guarantor’s obligations under the Credit Agreement;
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(iii) upon any covenant defeasance or legal defeasance with respect to such series of Notes and the Indenture, or upon the discharge of the Company’s obligations with respect to such series of Notes and obligations under the Indenture in accordance with its terms;
(iv) upon (A) the consolidation or merger by the Company with or into any Person or (B) the conveyance, transfer or lease of all or substantially all the assets of the Company, in a transaction that complies with the Indenture, such that the Company ceases to be a subsidiary of the Guarantor; or
(v) upon (A) the consolidation or merger by the Guarantor with or into any Person or (B) the conveyance, transfer or lease of all or substantially all the assets of the Guarantor, such that the Company ceases to be a subsidiary of the Guarantor.
The release of the Guarantor’s Guarantee of an applicable series of Notes hereunder shall be independent of and shall not be affected by the release of the Guarantor’s Guarantee of any other series of Notes or other Debt Securities issued under the Indenture.
SECTION 505 Execution and Delivery. The Guarantor hereby agrees that the Guarantee of an applicable series of Notes will remain in full force and effect notwithstanding any failure to endorse on each Note of such series a notation of such Guarantee.
ARTICLE 6
MISCELLANEOUS PROVISIONS
The Trustee makes no undertaking or representations in respect of, and shall not be responsible in any manner whatsoever for and in respect of, the validity or sufficiency of this Supplemental Indenture or the Guarantees or the proper authorization or the due execution hereof by the Company or the Guarantor or for or in respect of the recitals and statements contained herein, all of which recitals and statements are made solely by the Company.
The Trustee (which shall be deemed to include the Paying Agent when the Trustee is also acting as a Paying Agent) shall have the right to accept and act upon instructions, including funds transfer instructions (“Instructions”) given pursuant to this Indenture and delivered using Electronic Means (as defined above); provided, however, that the Company shall provide to the Trustee an incumbency certificate listing officers with the authority to provide such Instructions (“Authorized Officers”) and containing specimen signatures of such Authorized Officers, which incumbency certificate shall be amended by the Company whenever a person is to be added or deleted from the listing. If the Company elects to give the Trustee Instructions using Electronic Means and the Trustee in its discretion elects to act upon such Instructions, the Trustee’s understanding of such Instructions shall be deemed controlling. The Company understands and agrees that the Trustee cannot determine the identity of the actual sender of such Instructions and that the Trustee shall conclusively presume that directions that purport to have been sent by an Authorized Officer listed on the incumbency certificate provided to the Trustee have been sent by such Authorized Officer. The Company shall be responsible for ensuring that only Authorized Officers transmit such Instructions to the Trustee and that the Company and all Authorized Officers are solely responsible to safeguard the use and confidentiality of applicable user and authorization codes, passwords and/or authentication keys upon receipt by the Company. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such Instructions notwithstanding such directions conflict or are inconsistent with a subsequent written instruction. The Company agrees: (i) to assume all risks arising out of the use of Electronic Means to submit Instructions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized Instructions, and the risk of interception and misuse by third parties; (ii) that it is fully informed of the protections and risks associated with the various methods of transmitting Instructions to the Trustee and that there may be more secure methods of transmitting Instructions than the method(s) selected by the Company; (iii) that the security procedures (if any) to be followed in connection with its transmission of Instructions provide to it a commercially reasonable degree of protection in light of its particular needs and circumstances; and (iv) to notify the Trustee immediately upon learning of any compromise or unauthorized use of the security procedures.
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For purposes of this Supplemental Indenture and the Notes, Section 7.02 of the Original Indenture is hereby amended to include the following additional rights of the Trustee:
(i) in no event shall the Trustee be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action;
(j) in no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, epidemics or pandemics, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances;
(k) the Trustee shall not be deemed to have notice of any Default or Event of Default unless a Responsible Officer of the Trustee has actual written notice thereof at the designated Corporate Trust Office of the Trustee, and such notice references the Notes and this Indenture;
(l) the rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder;
(m) the Trustee may require that the Company deliver a certificate setting forth the names of individuals, and their titles and direct-dial telephone numbers, of officers authorized at such time to take specified actions pursuant to this Indenture;
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(n) the Trustee shall not be liable for errors in judgment made in good faith unless it is proved that the Trustee was grossly negligent in ascertaining the pertinent facts; and
(o) the Trustee may act at the direction of requisite Holders without liability.
For purposes of this Supplemental Indenture and the Notes, Section 2.04 of the Original Indenture is hereby amended as follows:
(a) the Company shall be permitted to execute the Notes by manual, facsimile or electronic signature (so long as such electronic signature is a true representation of the actual signature of such officer); and
(b) the Trustee shall be permitted to authenticate the Notes by manual, facsimile or electronic signature.
This Supplemental Indenture shall be governed by, and construed in accordance with, the laws of the State of New York.
Each of the Company, the Guarantor and the Trustee (i) expressly and irrevocably consents to submit itself to the exclusive personal jurisdiction of the state courts in the Borough of Manhattan in the City of New York in the State of New York, and any federal court located in the Borough of Manhattan in the City of New York in the State of New York, together with any appellate court therefrom, with respect to all actions and proceedings arising out of this Indenture, the Notes or the Guarantees and (ii) expressly and irrevocably waives (and agrees not to plead or claim) any objection to the laying of venue of any action or proceeding arising out of this Indenture, the Notes or the Guarantees in such court or that any such action or proceeding brought in any such court has been brought in an inconvenient forum.
This Supplemental Indenture may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument. Any such counterparts may be executed manually, electronically or by facsimile.
EACH OF THE COMPANY, THE GUARANTOR, THE TRUSTEE AND THE HOLDERS BY ACCEPTANCE OF THE NOTES HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS SUPPLEMENTAL INDENTURE, THE NOTES OR THE TRANSACTION CONTEMPLATED HEREBY.
In order to comply with applicable tax laws (inclusive of rules, regulations and interpretations promulgated by competent authorities) related to the Indenture in effect from time to time (collectively, “Applicable Tax Law”) that a foreign financial institution, issuer, trustee, paying agent or other party is or has agreed to be subject to, the Company agrees (i) upon reasonable written request of the Trustee, to use commercially reasonable efforts to provide to the Trustee, to the extent available, sufficient information about the parties and/or transactions (including any modification to the terms of such transactions) so that the Trustee can determine whether it has tax-related obligations under Applicable Tax Law and (ii) that the Trustee shall be entitled to make any withholding or deduction in respect of taxes from payments under the Indenture to the extent necessary to comply with Applicable Tax Law for which the Trustee shall not have any liability. Nothing in the immediately preceding sentence shall be construed as obligating the Company to make any “gross up” payment or similar reimbursement in connection with a payment in respect of which amounts are so withheld or deducted. The terms of this paragraph shall survive the satisfaction and discharge of the Indenture.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the Parties have executed this Supplemental Indenture by their duly authorized signatories as of the date first above written.
| COX COMMUNICATIONS, INC., as Issuer | |||
| By: | /s/ R. Perley McBride | ||
| Name: | Perley McBride | ||
| Title: | Executive Vice President & Chief Financial Officer | ||
[Signature Page to Eighteenth Supplemental Indenture]
| COX COMMUNICATIONS, INC., as Issuer | |||
| By: | /s/ Charles L. Odom | ||
| Name: | Charles L. Odom | ||
| Title: | Vice President and Treasurer | ||
[Signature Page to Eighteenth Supplemental Indenture]
| COX ENTERPRISES, INC., as Guarantor | |||
| By: | /s/ Maria L. Friedman | ||
| Name: | Maria L. Friedman | ||
| Title: | Sr. Vice President, Tax and Treasury Services | ||
[Signature Page to Eighteenth Supplemental Indenture]
| COX ENTERPRISES, INC., as Guarantor | |||
| By: | /s/ Charles L. Odom | ||
| Name: | Charles L. Odom | ||
| Title: | Vice President and Treasurer | ||
[Signature Page to Eighteenth Supplemental Indenture]
| THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee | |||
| By: | /s/ Julie Hoffman-Ramos | ||
| Name: | Julie Hoffman-Ramos | ||
| Title: | Vice President | ||
[Signature Page to Eighteenth Supplemental Indenture]
EXHIBIT A-l(i)
[FORM OF FACE OF SECURITY]
[TRANSFER RESTRICTION LEGEND]
[THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT’), OR ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS A NON-U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH THE LAWS APPLICABLE TO SUCH PURCHASER IN THE JURISDICTION IN WHICH SUCH PURCHASE IS MADE AND (2) AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) THAT IS ONE YEAR AFTER THE LATEST OF THE ISSUE DATE HEREOF, THE ORIGINAL ISSUE DATE OF THE ISSUANCE OF ANY ADDITIONAL NOTES (AS DEFINED IN THE INDENTURE GOVERNING THIS SECURITY) AND THE LAST DATE ON WHICH THE COMPANY OR ANY OF ITS AFFILIATES WERE THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE COMPANY, THE GUARANTOR OR ANY SUBSIDIARY THEREOF, (B) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATIONS UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH THE LAWS APPLICABLE TO IT IN THE JURISDICTION IN WHICH SUCH PURCHASE IS MADE, (D) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY’S AND THE TRUSTEE’S, OR REGISTRAR’S, AS APPLICABLE, RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (C) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE FOREGOING CASES, A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE OR REGISTRAR. THIS LEGEND WILL BE REMOVED UPON THE WRITTEN REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.]
[GLOBAL NOTES LEGEND]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON 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.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS, IN WHOLE BUT NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN ARTICLE TWO OF THE EIGHTEENTH SUPPLEMENTAL INDENTURE REFERRED TO ON THE REVERSE HEREOF.]
A-1
| No. R- | PRINCIPAL AMOUNT |
| CUSIP No. 224044 CL9 | $ |
COX COMMUNICATIONS, INC.
1 .800% Notes due 2030
COX COMMUNICATIONS, INC., a Delaware corporation (hereinafter called the “Company,” which term includes any successor corporation under the Indenture referred to below), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of [ ] ($ ) on October 1, 2030 (the “Maturity Date”), unless previously redeemed, and to pay interest thereon from September 17, 2020 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, payable semiannually on April 1 and October 1 of each year (each, an “Interest Payment Date”), commencing April 1, 2021 at the rate of 1 .800% per annum, until the principal hereof is paid or duly made available for payment. Interest shall be computed on the basis of a 360-day year of twelve 30-day months. The interest so payable and punctually paid or duly provided for on any Interest Payment Date will, as provided in the Indenture, be paid to the Person in whose name this Note (or one or more predecessor securities) is registered at the close of business on the regular record date for such interest, which shall be March l5 or September 15 (whether or not a Business Day), as the case may be, immediately preceding such Interest Payment Date. Any such interest which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date shall forthwith cease to be payable to the registered Holder hereof on the relevant regular record date by virtue of having been such Holder, and may be paid to the Person in whose name this Note (or one or more predecessor securities) is registered at the close of business on a subsequent special record date (which shall be not more than 15 days and not less than 10 days before the payment date) for the payment of such defaulted interest to be fixed by the Trustee, notice whereof shall be given to the Holders of Notes of this series not less than 10 days prior to such special record date, or may be paid at any time in any other lawful manner, all as more fully provided in such Indenture. If any Interest Payment Date, Redemption Date or the Maturity Date falls on a day that is not a Business Day, the required payment shall be made on the next Business Day as if it were made on the date such payment was due and no interest shall accrue on the amount so payable for the period from and after such Interest Payment Date, Redemption Date or the Maturity Date, as the case may be, to such next Business Day. Payments of principal, premium, if any, and interest hereunder shall be made in such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts and shall be made immediately available to the Holder (as defined below) hereof.
This Note is one of the duly authorized series of Debt Securities of the Company, designated as the Company’s “l. 800% Notes due 2030” (the “Notes”), initially limited to an aggregate principal amount of $750,000,000, all issued or to be issued under and pursuant to an Indenture dated as of June 27, 1995 (the “Original Indenture”), as supplemented by the Eighteenth Supplemental Indenture dated as of September 17, 2020 (the “Eighteenth Supplemental Indenture” and, together with the Original Indenture, the “Indenture”), duly executed and delivered by the Company and Cox Enterprises, Inc., a Delaware corporation, as guarantor (the “Guarantor”), to The Bank of New York Mellon Trust Company, N.A, as trustee (hereinafter referred to as the “Trustee”), to which Indenture and all indentures supplemental thereto reference is hereby made for a description of the rights, limitation of rights, obligations, duties and immunities thereunder of the Trustee, the Company, the Guarantor and the Holders (the words “Holders” or “Holder” meaning the registered holders or registered holder of the Notes).
The Notes and the obligations of the Company thereunder and under the Indenture shall be fully and unconditionally guaranteed on a senior unsecured basis by the Guarantor (the “Guarantee”). The Guarantee will be automatically and unconditionally released and discharged upon the occurence of certain events without any action required on the part of the Trustee or any Holder in accordance with the tenns of the Eighteenth Supplemental Indenture.
Prior to the Par Call Date, this Note will be redeemable at the option of the Company at any time, in whole or in part, at a Redemption Price equal to the greater of (i) 100% of the principal amount of this Note to be redeemed and (ii) the sum, as determined by the Quotation Agent, of the present values of the principal amount of this Note to be redeemed and the remaining scheduled payments of interest on the principal amount of this Note to be redeemed (assuming that this Note matured on the Par Call Date), exclusive of interest accrued to the Redemption Date, in each case, discounted from their respective scheduled payment dates to the Redemption Date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as defined below) plus 20 basis points, plus accrued and unpaid interest thereon to, but not including, the Redemption Date. On or after the Par Call Date, this Note will be redeemable at the option of the Company, in whole at any time or in part from time to time, at a Redemption Price equal to 100% of the principal amount of this Note being redeemed, plus accrued and unpaid interest thereon to, but not including, the Redemption Date.
“Comparable Treasury Issue” means, with respect to this Note subject to redemption, the United States Treasury security selected by the Quotation Agent as having an actual or interpolated maturity comparable to the remaining life of this Note to be redeemed (assuming that this Note matured on the Par Call Date) that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity with the remaining life of this Note to be redeemed (assuming, for this purpose, that this Note matured on the Par Call Date).
“Comparable Treasury Price” means, with respect to any Redemption Date, the average of five Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and lowest of such Reference Treasury Dealer Quotations, or, if the Quotation Agent obtains fewer than five such Reference Treasury Dealer Quotations, the average of all such quotations.
“Par Call Date” means July 1, 2030.
“Quotation Agent” means the Reference Treasury Dealer appointed by the Company.
“Reference Treasury Dealer” means, with respect to any Redemption Date, (i) Citigroup Global Markets Inc., J.P. Morgan Securities LLC and Wells Fargo Securities, LLC and each of their respective successors and (ii) two other nationally recognized investment banking firms (or their respective affiliates) that the Company selects in connection with such Redemption Date, and each of their respective successors; provided, however, that if any of the foregoing shall cease to be a U.S. government securities dealer in the United States (a “Primary Treasury Dealer”), the Company will substitute another Primary Treasury Dealer.
“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and any Redemption Date, the average, as determined by the Quotation Agent, of the bid and asked prices for the Comparable Treasury Issue, expressed in each case as a percentage of its principal amount, quoted in writing to the Quotation Agent by such Reference Treasury Dealer at 3:30 p.m., New York City time, on the third Business Day preceding such Redemption Date.
“Treasury Rate” means, with respect to any Redemption Date, the rate per annum equal to the semi-annual or equivalent yield to maturity or interpolated (on a day-count basis) of the Comparable Treasury Issue, calculated on the third Business Day preceding such Redemption Date using a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such Redemption Date.
If money sufficient to pay the Redemption Price and accrued and unpaid interest on the principal amount of this Note to be redeemed on the Redemption Date is deposited with the Trustee or Paying Agent on or before the Redemption Date and certain other conditions specified in the Indenture are satisfied, then on or after such date, interest will cease to accrue on the principal amount of this Note called for redemption.
Notice of any redemption will be delivered at least 15 days but not more than 60 days before the Redemption Date to the Holder hereof by first-class mail or delivered electronically if held by DTC, to the address of such Holder appearing in the security register or otherwise in accordance with the procedures of DTC. Any notice of redemption may, at the Company’s discretion, be subject to the satisfaction of one or more conditions precedent, and if such notice of redemption is conditioned upon the occurrence of one or more conditions precedent, such notice shall state the nature of such conditions precedent.
Except as provided above, this Note is not redeemable by the Company prior to maturity.
This Note is not subject to any sinking fund.
Upon the occurrence of a Change of Control Repurchase Event, unless the Company has redeemed this Note or the Company has defeased this Security or satisfied and discharged this Note, the Holder of this Note shall have the right to require that the Company purchase all or a portion (such principal amount to be equal to $2,000 or integral multiples of $1,000 in excess thereof), of this Note at a purchase price in cash in an amount equal to 101% of the principal amount thereof, plus accrued but unpaid interest, if any, to, but not including, the date of purchase. Within 30 days following any Change of Control Repurchase Event, the Company shall deliver a notice to each Holder, in accordance with Section 40l(b) of the Eighteenth Supplemental Indenture, with a copy to the Trustee, which notice shall govern the terms of the Change of Control Offer. Notice of any redemption pursuant to the Change of Control Offer will be mailed or delivered electronically at least 15 days but not more than 60 days before the Redemption Date to the Holder hereof in accordance with the Eighteenth Supplemental Indenture.
In case an Event of Default shall occur and be continuing, the principal hereof may be declared, and upon such declaration shall become, due and payable, in the manner, with the effect and subject to the conditions provided in the Indenture.
Subject to certain exceptions set forth in the Indenture, (i) the Indenture may be amended with respect to the Notes with the consent of the Holders of at least a majority in principal amount outstanding of the Notes and (ii) any default or noncompliance with any provisions applicable to the Notes may be waived with the consent of the Holders of a majority in principal amount outstanding of the Notes. Subject to certain exceptions set forth in the Indenture, without the consent of any Holder, the Company and the Trustee may amend the Indenture or the Notes to, among other things, cure any ambiguity, defect or inconsistency, or to provide for the assumption by a successor person of the obligations of the Company under the Indenture, or to add additional covenants or surrender any right or power conferred on the Company, or to establish the form or terms of the Notes of any series, or to appoint a successor Trustee or provide for administration of the trust by more than one Trustee, or to add to, delete from or revise the conditions, limitations, and restrictions on the authorized amount, terms or purposes of issue, authentication and delivery of the Notes or to add any additional event of default, or to modify the provisions of the Indenture as shall be necessary to facilitate the defeasance and discharge of the Notes as shall not adversely affect any Holders, or to secure the Notes, or to make provisions with respect to exchange rights of Holders, or to make any change that does not adversely affect the rights of any Holder.
Subject to certain conditions, the Company at any time may terminate some or all of its obligations and the obligations of the Guarantor under the Notes and the Indenture if the Company deposits with the Trustee money or U.S. Government Obligations for the payment of principal, premium, if any, and interest on the Notes to the Maturity Date.
If money for the payment of principal or interest remains unclaimed for two years, the Trustee or Paying Agent shall pay the money back to the Company at its request unless an abandoned property law designates another Person. After any such payment, Holders entitled to the money must look only to the Company and not to the Trustee for payment.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and premium, if any, and interest on this Note at the place, at the respective times, at the rate, and in the coin or currency herein prescribed.
No director, officer, employee or stockholder, as such, of the Company or the Guarantor shall have any liability for any obligations of the Company under this Note or the Indenture or the obligations of the Guarantor under the Indenture, as applicable, or for any claim based on, in respect of or by reason of such obligations or their creation. Each Holder, by accepting this Note, waives and releases all such liability. The waiver and release are part of the consideration for the issue of this Note.
This Note and the Indenture shall be governed by and construed in accordance with the law of the State of New York applicable to agreements made or instruments entered into and, in each case, performed in said state.
Ownership of this Note shall be proved by the register for the Notes kept by the Registrar. The Company, the Trustee and any agent of the Company may treat the Person in whose name a Note is registered as the absolute owner thereof for all purposes.
Pursuant to a recommendation promulgated by the Committee on Uniform Securities Identification Procedures (“CUSIP”), the Company has caused a CUSIP number to be printed on this Note and has directed the Trustee to use the CUSIP number as a convenience to Holders. No representation is made as to the correctness of such numbers and reliance may be placed only on the other identification numbers printed on this Note.
Terms used herein without definition that are defined in the Indenture shall have the meanings assigned to them in the Indenture.
Unless the Certificate of Authentication hereon has been executed by the Trustee under the Indenture referred to herein by the manual, facsimile or electronic signature of one of its authorized officers, or on behalf of the Trustee by the manual, facsimile or electronic signature of an authorized officer of the Trustee’s authenticating agent, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed, manually or by facsimile.
Date:
| COX COMMUNICATIONS, INC. | |||
| By: | |||
| Name: | |||
| Title: | |||
| By: | |||
| Name: | |||
| Title: | |||
CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated therein referred to in the within-mentioned Indenture.
| THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A. | ||
| as Trustee | ||
| By: | ||
| Authorized Signatory | ||
| Dated: |
ASSIGNMENT FORM
| FOR VALUE RECEIVED, the undersigned hereby sell(s) assign(s) and transfer(s) unto | |
| Please insert social security number 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 attorney to transfer said Note of Cox Communications, Inc. on the books of Cox Communications, Inc. 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 this Note in every particular without alteration or enlargement or any change whatsoever. The Signature must be guaranteed by an “eligible guarantor institution meeting the requirements of the Registrar, which requirements include memberships or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934.
EXHIBIT A-l(ii)
[FORM OF FACE OF SECURITY]
[TRANSFER RESTRICTION LEGEND]
[THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT’), OR ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS A NON-U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH THE LAWS APPLICABLE TO SUCH PURCHASER IN THE JURISDICTION IN WHICH SUCH PURCHASE IS MADE AND (2) AGREES TO OFFER, SELL OR OTHERWISE TRANSFER -SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) THAT IS ONE YEAR AFTER THE LATEST OF THE ISSUE DATE HEREOF, THE ORIGINAL ISSUE DATE OF THE ISSUANCE OF ANY ADDITIONAL NOTES (AS DEFINED IN THE INDENTURE GOVERNING THIS SECURITY) AND THE LAST DATE ON WHICH THE COMPANY OR ANY OF ITS AFFILIATES WERE THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE COMPANY, THE GUARANTOR OR ANY SUBSIDIARY THEREOF, (B) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 1 44A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATIONS UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH THE LAWS APPLICABLE TO IT IN THE JURISDICTION IN WHICH SUCH PURCHASE IS MADE, (D) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY’S AND THE TRUSTEE’S, OR REGISTRAR’S, AS APPLICABLE, RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (C) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE FOREGOING CASES, A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE OR REGISTRAR. THIS LEGEND WILL BE REMOVED UPON THE WRITTEN REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.]
[GLOBAL NOTES LEGEND]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON 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.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS, IN WHOLE BUT NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN ARTICLE TWO OF THE EIGHTEENTH SUPPLEMENTAL INDENTURE REFERRED TO ON THE REVERSE HEREOF.]
| No. R- | PRINCIPAL AMOUNT |
| CUSIP No. 224044 CM7 | $ |
COX COMMUNICATIONS, INC.
2.950% Notes due 2050
COX COMMUNICATIONS, INC., a Delaware corporation (hereinafter called the “Company,” which term includes any successor corporation under the Indenture referred to below), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of [ ] ($ ) on October 1, 2050 (the “Maturity Date”), unless previously redeemed, and to pay interest thereon from September 17, 2020 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, payable semiannually on April I and October I of each year (each, an “Interest Payment Date”), commencing April 1, 2021 at the rate of 2.950% per annum, until the principal hereof is paid or duly made available for payment. Interest shall be computed on the basis of a 360-day year of twelve 30-day months. The interest so payable and punctually paid or duly provided for on any Interest Payment Date will, as provided in the Indenture, be paid to the Person in whose name this Note (or one or more predecessor securities) is registered at the close of business on the regular record date for such interest, which shall be March l5 or September 15 (whether or not a Business Day), as the case may be, immediately preceding such Interest Payment Date. Any such interest which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date shall forthwith cease to be payable to the registered Holder hereof on the relevant regular record date by virtue of having been such Holder, and may be paid to the Person in whose name this Note (or one or more predecessor securities) is registered at the close of business on a subsequent special record date (which shall be not more than 15 days and not less than 10 days before the payment date) for the payment of such defaulted interest to be fixed by the Trustee, notice whereof shall be given to the Holders of Notes of this series not less than 10 days prior to such special record date, or may be paid at any time in any other lawful manner, all as more fully provided in such Indenture. If any Interest Payment Date, Redemption Date or the Maturity Date falls on a day that is not a Business Day, the required payment shall be made on the next Business Day as if it were made on the date such payment was due and no interest shall accrue on the amount so payable for the period from and after such Interest Payment Date, Redemption Date or the Maturity Date, as the case may be, to such next Business Day. Payments of principal, premium, if any, and interest hereunder shall be made in such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts and shall be made immediately available to the Holder (as defined below) hereof.
This Note is one of the duly authorized series of Debt Securities of the Company, designated as the Company’s “2.950% Notes due 2050” (the “Notes”), initially limited to an aggregate principal amount of $750,000,000, all issued or to be issued under and pursuant to an Indenture dated as of June 27, 1995 (the “Original Indenture”), as supplemented by the Eighteenth Supplemental Indenture dated as of September 17, 2020 (the “Eighteenth Supplemental Indenture” and, together with the Original Indenture, the “Indenture”), duly executed and delivered by the Company and Cox Enterprises, Inc., a Delaware corporation, as guarantor (the “Guarantor”), to The Bank of New York Mellon Trust Company, N.A, as trustee (hereinafter referred to as the “Trustee”), to which Indenture and all indentures supplemental thereto reference is hereby made for a description of the rights, limitation of rights, obligations, duties and immunities thereunder of the Trustee, the Company, the Guarantor and the Holders (the words “Holders” or “Holder” meaning the registered holders or registered holder of the Notes).
The Notes and the obligations of the Company thereunder and under the Indenture shall be fully and unconditionally guaranteed on a senior unsecured basis by the Guarantor (the “Guarantee”). The Guarantee will be automatically and unconditionally released and discharged upon the occurence of certain events without any action required on the part of the Trustee or any Holder in accordance with the tenns of the Eighteenth Supplemental Indenture.
Prior to the Par Call Date, this Note will be redeemable at the option of the Company at any time, in whole or in part, at a Redemption Price equal to the greater of (i) 100% of the principal amount of this Note to be redeemed and (ii) the sum, as determined by the Quotation Agent, of the present values of the principal amount of this Note to be redeemed and the remaining scheduled payments of interest on the principal amount of this Note to be redeemed (assuming that this Note matured on the Par Call Date), exclusive of interest accrued to the Redemption Date, in each case, discounted from their respective scheduled payment dates to the Redemption Date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as defined below) plus 25 basis points, plus accrued and unpaid interest thereon to, but not including, the Redemption Date. On or after the Par Call Date, this Note will be redeemable at the option of the Company, in whole at any time or in part from time to time, at a Redemption Price equal to 100% of the principal amount of this Note being redeemed, plus accrued and unpaid interest thereon to, but not including, the Redemption Date.
“Comparable Treasury Issue” means, with respect to this Note subject to redemption, the United States Treasury security selected by the Quotation Agent as having an actual or interpolated maturity comparable to the remaining life of this Note to be redeemed (assuming that this Note matured on the Par Call Date) that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity with the remaining life of this Note to be redeemed (assuming, for this purpose, that this Note matured on the Par Call Date).
“Comparable Treasury Price” means, with respect to any Redemption Date, the average of five Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and lowest of such Reference Treasury Dealer Quotations, or, if the Quotation Agent obtains fewer than five such Reference Treasury Dealer Quotations, the average of all such quotations.
“Par Call Date” means April 1, 2050.
“Quotation Agent” means the Reference Treasury Dealer appointed by the Company.
“Reference Treasury Dealer” means, with respect to any Redemption Date, (i) Citigroup Global Markets Inc., J.P. Morgan Securities LLC and Wells Fargo Securities, LLC and each of their respective successors and (ii) two other nationally recognized investment banking firms (or their respective affiliates) that the Company selects in connection with such Redemption Date, and each of their respective successors; provided, however, that if any of the foregoing shall cease to be a U.S. government securities dealer in the United States (a “Primary Treasury Dealer”), the Company will substitute another Primary Treasury Dealer.
“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and any Redemption Date, the average, as determined by the Quotation Agent, of the bid and asked prices for the Comparable Treasury Issue, expressed in each case as a percentage of its principal amount, quoted in writing to the Quotation Agent by such Reference Treasury Dealer at 3:30 p.m., New York City time, on the third Business Day preceding such Redemption Date.
“Treasury Rate” means, with respect to any Redemption Date, the rate per annum equal to the semi-annual or equivalent yield to maturity or interpolated (on a day-count basis) of the Comparable Treasury Issue, calculated on the third Business Day preceding such Redemption Date using a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such Redemption Date.
If money sufficient to pay the Redemption Price and accrued and unpaid interest on the principal amount of this Note to be redeemed on the Redemption Date is deposited with the Trustee or Paying Agent on or before the Redemption Date and certain other conditions specified in the Indenture are satisfied, then on or after such date, interest will cease to accrue on the principal amount of this Note called for redemption.
Notice of any redemption will be delivered at least 15 days but not more than 60 days before the Redemption Date to the Holder hereof by first-class mail or delivered electronically if held by OTC, to the address of such Holder appearing in the security register or otherwise in accordance with the procedures of OTC. Any notice of redemption may, at the Company’s discretion, be subject to the satisfaction of one or more conditions precedent, and if such notice of redemption is conditioned upon the occurrence of one or more conditions precedent, such notice shall state the nature of such conditions precedent.
Except as provided above, this Note is not redeemable by the Company prior to maturity.
This Note is not subject to any sinking fund.
Upon the occurrence of a Change of Control Repurchase Event, unless the Company has redeemed this Note or the Company has defeased this Security or satisfied and discharged this Note, the Holder of this Note shall have the right to require that the Company purchase all or a portion (such principal amount to be equal to $2,000 or integral multiples of $1,000 in excess thereof), of this Note at a purchase price in cash in an amount equal to 101% of the principal amount thereof, plus accrued but unpaid interest, if any, to, but not including, the date of purchase. Within 30 days following any Change of Control Repurchase Event, the Company shall deliver a notice to each Holder, in accordance with Section 401(b) of the Eighteenth Supplemental Indenture, with a copy to the Trustee, which notice shall govern the terms of the Change of Control Offer. Notice of any redemption pursuant to the Change of Control Offer will be mailed or delivered electronically at least 15 days but not more than 60 days before the Redemption Date to the Holder hereof in accordance with the Eighteenth Supplemental Indenture.
In case an Event of Default shall occur and be continuing, the principal hereof may be declared, and upon such declaration shall become, due and payable, in the manner, with the effect and subject to the conditions provided in the Indenture.
Subject to certain exceptions set forth in the Indenture, (i) the Indenture may be amended with respect to the Notes with the consent of the Holders of at least a majority in principal amount outstanding of the Notes and (ii) any default or noncompliance with any provisions applicable to the Notes may be waived with the consent of the Holders of a majority in principal amount outstanding of the Notes. Subject to certain exceptions set forth in the Indenture, without the consent of any Holder, the Company and the Trustee may amend the Indenture or the Notes to, among other things, cure any ambiguity, defect or inconsistency, or to provide for the assumption by a successor person of the obligations of the Company under the Indenture, or to add additional covenants or surrender any right or power conferred on the Company, or to establish the form or terms of the Notes of any series, or to appoint a successor Trustee or provide for administration of the trust by more than one Trustee, or to add to, delete from or revise the conditions, limitations, and restrictions on the authorized amount, terms or purposes of issue, authentication and delivery of the Notes or to add any additional event of default, or to modify the provisions of the Indenture as shall be necessary to facilitate the defeasance and discharge of the Notes as shall not adversely affect any Holders, or to secure the Notes, or to make provisions with respect to exchange rights of Holders, or to make any change that does not adversely affect the rights of any Holder.
Subject to certain conditions, the Company at any time may terminate some or all of its obligations and the obligations of the Guarantor under the Notes and the Indenture if the Company deposits with the Trustee money or U.S. Government Obligations for the payment of principal, premium, if any, and interest on the Notes to the Maturity Date.
If money for the payment of principal or interest remains unclaimed for two years, the Trustee or Paying Agent shall pay the money back to the Company at its request unless an abandoned property law designates another Person. After any such payment, Holders entitled to the money must look only to the Company and not to the Trustee for payment.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and premium, if any, and interest on this Note at the place, at the respective times, at the rate, and in the coin or currency herein prescribed.
No director, officer, employee or stockholder, as such, of the Company or the Guarantor shall have any liability for any obligations of the Company under this Note or the Indenture or the obligations of the Guarantor under the Indenture, as applicable, or for any claim based on, in respect of or by reason of such obligations or their creation. Each Holder, by accepting this Note, waives and releases all such liability. The waiver and release are part of the consideration for the issue of this Note.
This Note and the Indenture shall be governed by and construed in accordance with the law of the State of New York applicable to agreements made or instruments entered into and, in each case, performed in said state.
Ownership of this Note shall be proved by the register for the Notes kept by the Registrar. The Company, the Trustee and any agent of the Company may treat the Person in whose name a Note is registered as the absolute owner thereof for all purposes.
Pursuant to a recommendation promulgated by the Committee on Uniform Securities Identification Procedures (“CUSIP”), the Company has caused a CUSIP number to be printed on this Note and has directed the Trustee to use the CUSIP number as a convenience to Holders. No representation is made as to the correctness of such numbers and reliance may be placed only on the other identification numbers printed on this Note.
Terms used herein without definition that are defined in the Indenture shall have the meanings assigned to them in the Indenture.
Unless the Certificate of Authentication hereon has been executed by the Trustee under the Indenture referred to herein by the manual, facsimile or electronic signature of one of its authorized officers, or on behalf of the Trustee by the manual, facsimile or electronic signature of an authorized officer of the Trustee’s authenticating agent, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed, manually or by facsimile.
Date:
| COX COMMUNICATIONS, INC. | ||
| By: | ||
| Name: | ||
| Title: | ||
| By: | ||
| Name: | ||
| Title: | ||
CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated therein referred to in the within-mentioned Indenture.
| THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A. | ||
| as Trustee | ||
| By: | ||
| Authorized Signatory | ||
| Dated: |
ASSIGNMENT FORM
| FOR VALUE RECEIVED, the undersigned hereby sell(s) assign(s) and transfer(s) unto | |
| Please insert social security number 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 attorney to transfer said Note of Cox Communications, Inc. on the books of Cox Communications, Inc. 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 this Note in every particular without alteration or enlargement or any change whatsoever. The Signature must be guaranteed by an “eligible guarantor institution meeting the requirements of the Registrar, which requirements include memberships or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934.
EXHIBIT A-2(i)
[FORM OF FACE OF SECURITY]
[TRANSFER RESTRICTION LEGEND]
[THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT’), OR ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGlSTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS A NON-U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH THE LAWS APPLICABLE TO SUCH PURCHASER IN THE JURISDICTION IN WHICH SUCH PURCHASE IS MADE AND (2) AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) THAT IS 40 DAYS AFTER THE LATEST OF THE ISSUE DATE HEREOF, THE ORIGINAL ISSUE DATE OF THE ISSUANCE OF ANY ADDITIONAL NOTES (AS DEFINED IN THE INDENTURE GOVERNING THIS SECURITY) AND THE DATE ON WHICH THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) WAS FIRST OFFERED TO PERSONS OTHER THAN DISTRIBUTORS IN RELIANCE ON REGULATION S, ONLY (A) TO THE COMPANY, THE GUARANTOR OR ANY SUBSIDIARY THEREOF, (B) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH THE LAWS APPLICABLE TO IT IN THE JURISDICTION IN WHICH SUCH PURCHASE IS MADE, (D) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY’S AND THE TRUSTEE’S, OR REGISTRAR’S, AS APPLICABLE, RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (C) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE FOREGOING CASES, A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE OR REGISTRAR. THIS LEGEND WILL BE REMOVED UPON THE WRITTEN REQUEST OF THE HOLDER AFTER THE RESALE RESTRlCTION TERMINATION DATE. BY ITS ACQUISITION HEREOF, THE HOLDER HEREOF REPRESENTS THAT IT IS NOT A U.S. PERSON NOR IS IT PURCHASING FOR THE ACCOUNT OF A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT.
THIS GLOBAL NOTE IS A TEMPORARY GLOBAL NOTE FOR PURPOSES OF REGULATION S UNDER THE SECURITIES ACT. NEITHER THIS TEMPORARY GLOBAL NOTE NOR ANY INTEREST HEREIN MAY BE OFFERED, SOLD OR DELIVERED, EXCEPT AS PERMITTED UNDER THE INDENTURE REFERRED TO BELOW.]
[GLOBAL NOTES LEGEND]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON 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.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS, IN WHOLE BUT NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN ARTICLE TWO OF THE EIGHTEENTH SUPPLEMENTAL INDENTURE REFERRED TO ON THE REVERSE HEREOF.]
| No. R- | PRINCIPAL AMOUNT |
| CUSIP No. U22018 AW2 | $ |
COX COMMUNICATIONS, INC.
1.800% Notes due 2030
COX COMMUNICATIONS, INC., a Delaware corporation (hereinafter called the “Company,” which term includes any successor corporation under the Indenture referred to below), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of [ ] ($ ) on October 1, 2030 (the “Maturity Date”), unless previously redeemed, and to pay interest thereon from September 17, 2020 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, payable semiannually on April 1 and October 1 of each year (each, an “Interest Payment Date”), commencing April 1, 2021 at the rate of 1.800% per annum, until the principal hereof is paid or duly made available for payment. Interest shall be computed on the basis of a 360-day year of twelve 30-day months. The interest so payable and punctually paid or duly provided for on any Interest Payment Date will, as provided in the Indenture, be paid to the Person in whose name this Note (or one or more predecessor securities) is registered at the close of business on the regular record date for such interest, which shall be March 15 or September 15 (whether or not a Business Day), as the case may be, immediately preceding such Interest Payment Date. Any such interest which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date shall forthwith cease to be payable to the registered Holder hereof on the relevant regular record date by virtue of having been such Holder, and may be paid to the Person in whose name this Note (or one or more predecessor securities) is registered at the close of business on a subsequent special record date (which shall be not more than 15 days and not less than 10 days before the payment date) for the payment of such defaulted interest to be fixed by the Trustee, notice whereof shall be given to the Holders of Notes of this series not less than 10 days prior to such special record date, or may be paid at any time in any other lawful manner, all as more fully provided in such Indenture. If any Interest Payment Date, Redemption Date or the Maturity Date falls on a day that is not a Business Day, the required payment shall be made on the next Business Day as if it were made on the date such payment was due and no interest shall accrue on the amount so payable for the period from and after such Interest Payment Date, Redemption Date or the Maturity Date, as the case may be, to such next Business Day. Payments of principal, premium, if any, and interest hereunder shall be made in such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts and shall be made immediately available to the Holder (as defined below) hereof.
This Note is one of the duly authorized series of Debt Securities of the Company, designated as the Company’s “1.800% Notes due 2030” (the “Notes”), initially limited to an aggregate principal amount of $750,000,000, all issued or to be issued under and pursuant to an Indenture dated as of June 27, 1995 (the “Original Indenture”), as supplemented by the Eighteenth Supplemental Indenture dated as of September 17, 2020 (the “Eighteenth Supplemental Indenture” and, together with the Original Indenture, the “Indenture”), duly executed and delivered by the Company and Cox Enterprises, Inc., a Delaware corporation, as guarantor (the “Guarantor”), to The Bank of New York Mellon Trust Company, N.A, as trustee (hereinafter referred to as the “Trustee”), to which Indenture and all indentures supplemental thereto reference is hereby made for a description of the rights, limitation of rights, obligations, duties and immunities thereunder of the Trustee, the Company, the Guarantor and the Holders (the words “Holders” or “Holder” meaning the registered holders or registered holder of the Notes).
The Notes and the obligations of the Company thereunder and under the Indenture shall be fully and unconditionally guaranteed on a senior unsecured basis by the Guarantor (the “Guarantee”). The Guarantee will be automatically and unconditionally released and discharged upon the occurrence of certain events without any action required on the part of the Trustee or any Holder in accordance with the terms of the Eighteenth Supplemental Indenture.
Prior to the Par Call Date, this Note will be redeemable at the option of the Company at any time, in whole or in part, at a Redemption Price equal to the greater of (i) 100% of the principal amount of this Note to be redeemed and (ii) the sum, as determined by the Quotation Agent, of the present values of the principal amount of this Note to be redeemed and the remaining scheduled payments of interest on the principal amount of this Note to be redeemed (assuming that this Note matured on the Par Call Date), exclusive of interest accrued to the Redemption Date, in each case, discounted from their respective scheduled payment dates to the Redemption Date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as defined below) plus 20 basis points, plus accrued and unpaid interest thereon to, but not including, the Redemption Date. On or after the Par Call Date, this Note will be redeemable at the option of the Company, in whole at any time or in part from time to time, at a Redemption Price equal to 100% of the principal amount of this Note being redeemed, plus accrued and unpaid interest thereon to, but not including, the Redemption Date.
“Comparable Treasury Issue” means, with respect to this Note subject to redemption, the United States Treasury security selected by the Quotation Agent as having an actual or interpolated maturity comparable to the remaining life of this Note to be redeemed (assuming that this Note matured on the Par Call Date) that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity with the remaining life of this Note to be redeemed (assuming, for this purpose, that this Note matured on the Par Call Date).
“Comparable Treasury Price” means, with respect to any Redemption Date, the average of five Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and lowest of such Reference Treasury Dealer Quotations, or, if the Quotation Agent obtains fewer than five such Reference Treasury Dealer Quotations, the average of all such quotations.
“Par Call Date” means July 1, 2030.
“Quotation Agent” means the Reference Treasury Dealer appointed by the Company.
“Reference Treasury Dealer” means, with respect to any Redemption Date, (i) Citigroup Global Markets Inc., J.P. Morgan Securities LLC and Wells Fargo Securities, LLC and each of their respective successors and (ii) two other nationally recognized investment banking firms (or their respective affiliates) that the Company selects in connection with such Redemption Date, and each of their respective successors; provided, however, that if any of the foregoing shall cease to be a U.S. government securities dealer in the United States (a “Primary Treasury Dealer”), the Company will substitute another Primary Treasury Dealer.
“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and any Redemption Date, the average, as determined by the Quotation Agent, of the bid and asked prices for the Comparable Treasury Issue, expressed in each case as a percentage of its principal amount, quoted in writing to the Quotation Agent by such Reference Treasury Dealer at 3:30 p.m., New York City time, on the third Business Day preceding such Redemption Date.
“Treasury Rate” means, with respect to any Redemption Date, the rate per annum equal to the semi-annual or equivalent yield to maturity or interpolated (on a day-count basis) of the Comparable Treasury Issue, calculated on the third Business Day preceding such Redemption Date using a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such Redemption Date.
If money sufficient to pay the Redemption Price and accrued and unpaid interest on the principal amount of this Note to be redeemed on the Redemption Date is deposited with the Trustee or Paying Agent on or before the Redemption Date and certain other conditions specified in the Indenture are satisfied, then on or after such date, interest will cease to accrue on the principal amount of this Note called for redemption.
Notice of any redemption will be delivered at least 15 days but not more than 60 days before the Redemption Date to the Holder hereof by first-class mail or delivered electronically if held by DTC, to the address of such Holder appearing in the security register or otherwise in accordance with the procedures of OTC. Any notice of redemption may, at the Company’s discretion, be subject to the satisfaction of one or more conditions precedent, and if such notice of redemption is conditioned upon the occurrence of one or more conditions precedent, such notice shall state the nature of such conditions precedent.
Except as provided above, this Note is not redeemable by the Company prior to maturity.
This Note is not subject to any sinking fund.
Upon the occurrence of a Change of Control Repurchase Event, unless the Company has redeemed this Note or the Company has defeased this Security or satisfied and discharged this Note, the Holder of this Note shall have the right to require that the Company purchase all or a portion (such principal amount to be equal to $2,000 or integral multiples of $1,000 in excess thereof), of this Note at a purchase price in cash in an amount equal to 101% of the principal amount thereof, plus accrued but unpaid interest, if any, to, but not including, the date of purchase. Within 30 days following any Change of Control Repurchase Event, the Company shall deliver a notice to each Holder, in accordance with Section 401(b) of the Eighteenth Supplemental Indenture, with a copy to the Trustee, which notice shall govern the terms of the Change of Control Offer. Notice of any redemption pursuant to the Change of Control Offer will be mailed or delivered electronically at least 15 days but not more than 60 days before the Redemption Date to the Holder hereof in accordance with the Eighteenth Supplemental Indenture.
In case an Event of Default shall occur and be continuing, the principal hereof may be declared, and upon such declaration shall become, due and payable, in the manner, with the effect and subject to the conditions provided in the Indenture.
Subject to certain exceptions set forth in the Indenture, (i) the Indenture may be amended with respect to the Notes with the consent of the Holders of at least a majority in principal amount outstanding of the Notes and (ii) any default or noncompliance with any provisions applicable to the Notes may be waived with the consent of the Holders of a majority in principal amount outstanding of the Notes. Subject to certain exceptions set forth in the Indenture, without the consent of any Holder, the Company and the Trustee may amend the Indenture or the Notes to, among other things, cure any ambiguity, defect or inconsistency, or to provide for the assumption by a successor person of the obligations of the Company under the Indenture, or to add additional covenants or surrender any right or power conferred on the Company, or to establish the form or terms of the Notes of any series, or to appoint a successor Trustee or provide for administration of the trust by more than one Trustee, or to add to, delete from or revise the conditions, limitations, and restrictions on the authorized amount, terms or purposes of issue, authentication and delivery of the Notes or to add any additional event of default, or to modify the provisions of the Indenture as shall be necessary to facilitate the defeasance and discharge of the Notes as shall not adversely affect any Holders, or to secure the Notes, or to make provisions with respect to exchange rights of Holders, or to make any change that does not adversely affect the rights of any Holder.
Subject to certain conditions, the Company at any time may terminate some or all of its obligations and the obligations of the Guarantor under the Notes and the Indenture if the Company deposits with the Trustee money or U.S. Government Obligations for the payment of principal, premium, if any, and interest on the Notes to the Maturity Date.
If money for the payment of principal or interest remains unclaimed for two years, the Trustee or Paying Agent shall pay the money back to the Company at its request unless an abandoned property law designates another Person. After any such payment, Holders entitled to the money must look only to the Company and not to the Trustee for payment.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and premium, if any, and interest on this Note at the place, at the respective times, at the rate, and in the coin or currency herein prescribed.
No director, officer, employee or stockholder, as such, of the Company or the Guarantor shall have any liability for any obligations of the Company under this Note or the Indenture or the obligations of the Guarantor under the Indenture, as applicable, or for any claim based on, in respect of or by reason of such obligations or their creation. Each Holder, by accepting this Note, waives and releases all such liability. The waiver and release are part of the consideration for the issue of this Note.
This Note and the Indenture shall be governed by and construed in accordance with the law of the State of New York applicable to agreements made or instruments entered into and, in each case, performed in said state.
Ownership of this Note shall be proved by the register for the Notes kept by the Registrar. The Company, the Trustee and any agent of the Company may treat the Person in whose name a Note is registered as the absolute owner thereof for all purposes.
Pursuant to a recommendation promulgated by the Committee on Uniform Securities Identification Procedures (“CUSIP”), the Company has caused a CUSIP number to be printed on this Note and has directed the Trustee to use the CUSIP number as a convenience to Holders. No representation is made as to the correctness of such numbers and reliance may be placed only on the other identification numbers printed on this Note.
Terms used herein without definition that are defined in the Indenture shall have the meanings assigned to them in the Indenture.
Unless the Certificate of Authentication hereon has been executed by the Trustee under the Indenture referred to herein by the manual, facsimile or electronic signature of one of its authorized officers, or on behalf of the Trustee by the manual, facsimile or electronic signature of an authorized officer of the Trustee’s authenticating agent, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed, manually or by facsimile.
Date:
| COX COMMUNICATIONS, INC. | ||
| By: | ||
| Name: | ||
| Title: | ||
| By: | ||
| Name: | ||
| Title: | ||
CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated therein referred to in the within-mentioned Indenture.
| THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A. | ||
| as Trustee | ||
| By: | ||
| Authorized Signatory | ||
| Dated: |
ASSIGNMENT FORM
| FOR VALUE RECEIVED, the undersigned hereby sell(s) assign(s) and transfer(s) unto | |
| Please insert social security number 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 attorney to transfer said Note of Cox Communications, Inc. on the books of Cox Communications, Inc. 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 this Note in every particular without alteration or enlargement or any change whatsoever. The Signature must be guaranteed by an “eligible guarantor institution meeting the requirements of the Registrar, which requirements include memberships or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934.
EXHIBIT A-2(ii)
[FORM OF FACE OF SECURITY]
[TRANSFER RESTRICTION LEGEND]
[THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT’), OR ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGlSTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS A NON-U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH THE LAWS APPLICABLE TO SUCH PURCHASER IN THE JURISDICTION TN WHICH SUCH PURCHASE IS MADE AND (2) AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) THAT IS 40 DAYS AFTER THE LATEST OF THE ISSUE DATE HEREOF, THE ORIGINAL ISSUE DATE OF THE ISSUANCE OF ANY ADDITIONAL NOTES (AS DEFINED IN THE INDENTURE GOVERNING THIS SECURITY) AND THE DATE ON WHICH THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) WAS FIRST OFFERED TO PERSONS OTHER THAN DISTRIBUTORS IN RELIANCE ON REGULATION S, ONLY (A) TO THE COMPANY, THE GUARANTOR OR ANY SUBSIDIARY THEREOF, (B) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH THE LAWS APPLICABLE TO IT IN THE JURISDICTION IN WHICH SUCH PURCHASE IS MADE, (D) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY’S AND THE TRUSTEE’S, OR REGISTRAR’S, AS APPLICABLE, RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (C) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE FOREGOING CASES, A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE OR REGISTRAR. THIS LEGEND WILL BE REMOVED UPON THE WRITTEN REQUEST OF THE HOLDER AFTER THE RESALE RESTRlCTION TERMINATION DATE. BY ITS ACQUISITION HEREOF, THE HOLDER HEREOF REPRESENTS THAT IT IS NOT A U.S. PERSON NOR IS IT PURCHASING FOR THE ACCOUNT OF A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT.
THIS GLOBAL NOTE IS A TEMPORARY GLOBAL NOTE FOR PURPOSES OF REGULATION S UNDER THE SECURITIES ACT. NEITHER THIS TEMPORARY GLOBAL NOTE NOR ANY INTEREST HEREIN MAY BE OFFERED, SOLD OR DELIVERED, EXCEPT AS PERMITTED UNDER THE INDENTURE REFERRED TO BELOW.]
[GLOBAL NOTES LEGEND]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON 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.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS, IN WHOLE BUT NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN ARTICLE TWO OF THE EIGHTEENTH SUPPLEMENTAL INDENTURE REFERRED TO ON THE REVERSE HEREOF.]
| No. R- | PRINCIPAL AMOUNT |
| CUSIP No. U22018 AX0 | $ |
COX COMMUNICATIONS, INC.
2.950% Notes due 2050
COX COMMUNICATIONS, INC., a Delaware corporation (hereinafter called the “Company,” which term includes any successor corporation under the Indenture referred to below), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of [ ] ($ ) on October 1, 2050 (the “Maturity Date”), unless previously redeemed, and to pay interest thereon from September 17, 2020 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, payable semiannually on April 1 and October 1 of each year (each, an “Interest Payment Date”), commencing April 1, 2021 at the rate of 2.950% per annum, until the principal hereof is paid or duly made available for payment. Interest shall be computed on the basis of a 360-day year of twelve 30-day months. The interest so payable and punctually paid or duly provided for on any Interest Payment Date will, as provided in the Indenture, be paid to the Person in whose name this Note (or one or more predecessor securities) is registered at the close of business on the regular record date for such interest, which shall be March 15 or September 15 (whether or not a Business Day), as the case may be, immediately preceding such Interest Payment Date. Any such interest which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date shall forthwith cease to be payable to the registered Holder hereof on the relevant regular record date by virtue of having been such Holder, and may be paid to the Person in whose name this Note (or one or more predecessor securities) is registered at the close of business on a subsequent special record date (which shall be not more than 15 days and not less than 10 days before the payment date) for the payment of such defaulted interest to be fixed by the Trustee, notice whereof shall be given to the Holders of Notes of this series not less than 10 days prior to such special record date, or may be paid at any time in any other lawful manner, all as more fully provided in such Indenture. If any Interest Payment Date, Redemption Date or the Maturity Date falls on a day that is not a Business Day, the required payment shall be made on the next Business Day as if it were made on the date such payment was due and no interest shall accrue on the amount so payable for the period from and after such Interest Payment Date, Redemption Date or the Maturity Date, as the case may be, to such next Business Day. Payments of principal, premium, if any, and interest hereunder shall be made in such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts and shall be made immediately available to the Holder (as defined below) hereof.
This Note is one of the duly authorized series of Debt Securities of the Company, designated as the Company’s “2.950% Notes due 2050” (the “Notes”), initially limited to an aggregate principal amount of $750,000,000, all issued or to be issued under and pursuant to an Indenture dated as of June 27, 1995 (the “Original Indenture”), as supplemented by the Eighteenth Supplemental Indenture dated as of September 17, 2020 (the “Eighteenth Supplemental Indenture” and, together with the Original Indenture, the “Indenture”), duly executed and delivered by the Company and Cox Enterprises, Inc., a Delaware corporation, as guarantor (the “Guarantor”), to The Bank of New York Mellon Trust Company, N.A, as trustee (hereinafter referred to as the “Trustee”), to which Indenture and all indentures supplemental thereto reference is hereby made for a description of the rights, limitation of rights, obligations, duties and immunities thereunder of the Trustee, the Company, the Guarantor and the Holders (the words “Holders” or “Holder” meaning the registered holders or registered holder of the Notes).
The Notes and the obligations of the Company thereunder and under the Indenture shall be fully and unconditionally guaranteed on a senior unsecured basis by the Guarantor (the “Guarantee”). The Guarantee will be automatically and unconditionally released and discharged upon the occurrence of certain events without any action required on the part of the Trustee or any Holder in accordance with the terms of the Eighteenth Supplemental Indenture.
Prior to the Par Call Date, this Note will be redeemable at the option of the Company at any time, in whole or in part, at a Redemption Price equal to the greater of (i) 100% of the principal amount of this Note to be redeemed and (ii) the sum, as determined by the Quotation Agent, of the present values of the principal amount of this Note to be redeemed and the remaining scheduled payments of interest on the principal amount of this Note to be redeemed (assuming that this Note matured on the Par Call Date), exclusive of interest accrued to the Redemption Date, in each case, discounted from their respective scheduled payment dates to the Redemption Date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as defined below) plus 25 basis points, plus accrued and unpaid interest thereon to, but not including, the Redemption Date. On or after the Par Call Date, this Note will be redeemable at the option of the Company, in whole at any time or in part from time to time, at a Redemption Price equal to 100% of the principal amount of this Note being redeemed, plus accrued and unpaid interest thereon to, but not including, the Redemption Date.
“Comparable Treasury Issue” means, with respect to this Note subject to redemption, the United States Treasury security selected by the Quotation Agent as having an actual or interpolated maturity comparable to the remaining life of this Note to be redeemed (assuming that this Note matured on the Par Call Date) that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity with the remaining life of this Note to be redeemed (assuming, for this purpose, that this Note matured on the Par Call Date).
“Comparable Treasury Price” means, with respect to any Redemption Date, the average of five Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and lowest of such Reference Treasury Dealer Quotations, or, if the Quotation ,Agent obtains fewer than five such Reference Treasury Dealer Quotations, the average of all such quotations.
“Par Call Date” means April 1, 2050.
“Quotation Agent” means the Reference Treasury Dealer appointed by the Company.
“Reference Treasury Dealer” means, with respect to any Redemption Date, (i) Citigroup Global Markets Inc., J.P. Morgan Securities LLC and Wells Fargo Securities, LLC and each of their respective successors and (ii) two other nationally recognized investment banking firms (or their respective affiliates) that the Company selects in connection with such Redemption Date, and each of their respective successors; provided, however, that if any of the foregoing shall cease to be a U.S. government securities dealer in the United States (a “Primary Treasury Dealer”), the Company will substitute another Primary Treasury Dealer.
“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and any Redemption Date, the average, as determined by the Quotation Agent, of the bid and asked prices for the Comparable Treasury Issue, expressed in each case as a percentage of its principal amount, quoted in writing to the Quotation Agent by such Reference Treasury Dealer at 3:30 p.m., New York City time, on the third Business Day preceding such Redemption Date.
“Treasury Rate” means, with respect to any Redemption Date, the rate per annum equal to the semi-annual or equivalent yield to maturity or interpolated (on a day-count basis) of the Comparable Treasury Issue, calculated on the third Business Day preceding such Redemption Date using a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such Redemption Date.
If money sufficient to pay the Redemption Price and accrued and unpaid interest on the principal amount of this Note to be redeemed on the Redemption Date is deposited with the Trustee or Paying Agent on or before the Redemption Date and certain other conditions specified in the Indenture are satisfied, then on or after such date, interest will cease to accrue on the principal amount of this Note called for redemption.
Notice of any redemption will be delivered at least 15 days but not more than 60 days before the Redemption Date to the Holder hereof by first-class mail or delivered electronically if held by OTC, to the address of such Holder appearing in the security register or otherwise in accordance with the procedures of OTC. Any notice of redemption may, at the Company’s discretion, be subject to the satisfaction of one or more conditions precedent, and if such notice of redemption is conditioned upon the occurrence of one or more conditions precedent, such notice shall state the nature of such conditions precedent.
Except as provided above, this Note is not redeemable by the Company prior to maturity.
This Note is not subject to any sinking fund.
Upon the occurrence of a Change of Control Repurchase Event, unless the Company has redeemed this Note or the Company has defeased this Security or satisfied and discharged this Note, the Holder of this Note shall have the right to require that the Company purchase all or a portion (such principal amount to be equal to $2,000 or integral multiples of $1,000 in excess thereof), of this Note at a purchase price in cash in an amount equal to 101% of the principal amount thereof, plus accrued but unpaid interest, if any, to, but not including, the date of purchase. Within 30 days following any Change of Control Repurchase Event, the Company shall deliver a notice to each Holder, in accordance with Section 401(b) of the Eighteenth Supplemental Indenture, with a copy to the Trustee, which notice shall govern the terms of the Change of Control Offer. Notice of any redemption pursuant to the Change of Control Offer will be mailed or delivered electronically at least 15 days but not more than 60 days before the Redemption Date to the Holder hereof in accordance with the Eighteenth Supplemental Indenture.
In case an Event of Default shall occur and be continuing, the principal hereof may be declared, and upon such declaration shall become, due and payable, in the manner, with the effect and subject to the conditions provided in the Indenture.
Subject to certain exceptions set forth in the Indenture, (i) the Indenture may be amended with respect to the Notes with the consent of the Holders of at least a majority in principal amount outstanding of the Notes and (ii) any default or noncompliance with any provisions applicable to the Notes may be waived with the consent of the Holders of a majority in principal amount outstanding of the Notes. Subject to certain exceptions set forth in the Indenture, without the consent of any Holder, the Company and the Trustee may amend the Indenture or the Notes to, among other things, cure any ambiguity, defect or inconsistency, or to provide for the assumption by a successor person of the obligations of the Company under the Indenture, or to add additional covenants or surrender any right or power conferred on the Company, or to establish the form or terms of the Notes of any series, or to appoint a successor Trustee or provide for administration of the trust by more than one Trustee, or to add to, delete from or revise the conditions, limitations, and restrictions on the authorized amount, terms or purposes of issue, authentication and delivery of the Notes or to add any additional event of default, or to modify the provisions of the Indenture as shall be necessary to facilitate the defeasance and discharge of the Notes as shall not adversely affect any Holders, or to secure the Notes, or to make provisions with respect to exchange rights of Holders, or to make any change that does not adversely affect the rights of any Holder.
Subject to certain conditions, the Company at any time may terminate some or all of its obligations and the obligations of the Guarantor under the Notes and the Indenture if the Company deposits with the Trustee money or U.S. Government Obligations for the payment of principal, premium, if any, and interest on the Notes to the Maturity Date.
If money for the payment of principal or interest remains unclaimed for two years, the Trustee or Paying Agent shall pay the money back to the Company at its request unless an abandoned property law designates another Person. After any such payment, Holders entitled to the money must look only to the Company and not to the Trustee for payment.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and premium, if any, and interest on this Note at the place, at the respective times, at the rate, and in the coin or currency herein prescribed.
No director, officer, employee or stockholder, as such, of the Company or the Guarantor shall have any liability for any obligations of the Company under this Note or the Indenture or the obligations of the Guarantor under the Indenture, as applicable, or for any claim based on, in respect of or by reason of such obligations or their creation. Each Holder, by accepting this Note, waives and releases all such liability. The waiver and release are part of the consideration for the issue of this Note.
This Note and the Indenture shall be governed by and construed in accordance with the law of the State of New York applicable to agreements made or instruments entered into and, in each case, performed in said state.
Ownership of this Note shall be proved by the register for the Notes kept by the Registrar. The Company, the Trustee and any agent of the Company may treat the Person in whose name a Note is registered as the absolute owner thereof for all purposes.
Pursuant to a recommendation promulgated by the Committee on Uniform Securities Identification Procedures (“CUSIP”), the Company has caused a CUSIP number to be printed on this Note and has directed the Trustee to use the CUSIP number as a convenience to Holders. No representation is made as to the correctness of such numbers and reliance may be placed only on the other identification numbers printed on this Note.
Terms used herein without definition that are defined in the Indenture shall have the meanings assigned to them in the Indenture.
Unless the Certificate of Authentication hereon has been executed by the Trustee under the Indenture referred to herein by the manual, facsimile or electronic signature of one of its authorized officers, or on behalf of the Trustee by the manual, facsimile or electronic signature of an authorized officer of the Trustee’s authenticating agent, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed, manually or by facsimile.
Date:
| COX COMMUNICATIONS, INC. | ||
| By: | ||
| Name: | ||
| Title: | ||
| By: | ||
| Name: | ||
| Title: | ||
CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated therein referred to in the within-mentioned Indenture.
| THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A. | ||
| as Trustee | ||
| By: | ||
| Authorized Signatory | ||
| Dated: |
ASSIGNMENT FORM
| FOR VALUE RECEIVED, the undersigned hereby sell(s) assign(s) and transfer(s) unto | |
| Please insert social security number 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 attorney to transfer said Note of Cox Communications, Inc. on the books of Cox Communications, Inc. 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 this Note in every particular without alteration or enlargement or any change whatsoever. The Signature must be guaranteed by an “eligible guarantor institution meeting the requirements of the Registrar, which requirements include memberships or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934.
EXHIBIT B-1
Transfer Certificate
In connection with a transfer of any of the $ principal amount of the % Notes due 20 (the “Notes”) of Cox Communications, Inc. (the “Company”) within the period prior to the expiration of the holding period applicable to the sales thereof under Rule 144 under the Securities Act of 1933, as amended (the “Securities Act”) (or any successor provision), the undersigned registered owner of this Note hereby certifies with respect to $ principal amount of the above-captioned securities presented or surrendered on the date hereof (the “Surrendered Notes”) for registration of transfer, or for exchange where the securities deliverable upon such exchange are to be registered in a name other than that of the undersigned registered owner (each such transaction being a “transfer”), that such transfer complies with the restrictive legend set forth on the face of the Surrendered Notes for the reason checked below:
| ¨ | The transfer of the Surrendered Notes is made to the Company or any Subsidiary thereof; |
| ¨ | The transfer of the Surrendered Notes complies with Rule 144A under the Securities Act; |
| ¨ | The transfer of the Surrendered Notes is pursuant to a registration statement which has been declared effective under the Securities Act; |
| ¨ | The transfer of the Surrendered Notes is pursuant to an offer and sale to a non-U.S. person that occurs outside the United States within the meaning of Regulation S under the Securities Act and in accordance with the laws applicable to it in the jurisdiction in which such purchase is made; |
| ¨ | The transfer of the Surrendered Notes is pursuant to another available exemption from the registration requirements of the Securities Act. |
and unless the box below is checked, the undersigned confirms that, to the undersigned’s knowledge, such Notes are not being transferred to an “affiliate” of the Company as defined in Rule 144 under the Securities Act (an “Affiliate”).
| ¨ | The transferee is an Affiliate of the Company. |
| DATE: | |||
| Signature(s) | |||
(If the
registered owner is a corporation, partnership
or fiduciary, the title of the Person signing on behalf
of such registered owner must be stated.)
B-1-1
EXHIBIT B-2
Form of Letter to be Delivered by Accredited Investors
| Cox Communications, Inc. | |
| 6205-B Peachtree Dunwoody Road, NE | |
| Atlanta, Georgia 30328 | |
| Attention: Treasurer | |
| The Bank of New York Mellon Trust Company, N.A., as Registrar | |
| 500 Ross Street, 12th Floor | |
| Pittsburgh, PA 15262 | |
| Attention: Corporate Trust Office |
Dear Sirs:
We are delivering this letter in connection with the proposed transfer of $ principal amount of the _____% Notes due 20__ (the “Notes”) of Cox Communications, Inc. (the “Company”).
We hereby confirm that:
(i) we are an “accredited investor” within the meaning of Rule 50l (a)( l), (2), (3) or (7) of Regulation D under the Securities Act of 1933, as amended (the “Securities Act”), or an entity in which all of the equity owners are accredited investors within the meaning of Rule 50l(a)(l), (2), (3) or (7) of Regulation D under the Securities Act (an “Institutional Accredited Investor”);
(ii) (A) the purchase of Notes by us is for our own account or for the account of one or more other Institutional Accredited Investors or as fiduciary for the account of one or more trusts, each of which is an “accredited investor” within the meaning of Rule 501(a)(7) under the Securities Act and for each of which we exercise sole investment discretion or (B) we are a “bank,” within the meaning of Section 3(a)(2) of the Securities Act, or a “savings and loan association” or other institution described in Section 3(a)(5)(A) of the Securities Act that is acquiring Notes as fiduciary for the account of one or more institutions for which we exercise sole investment discretion;
(iii) we will acquire Notes having a minimum principal amount of not less than $100,000 for our own account or for any separate account for which we are acting;
(iv) we have such knowledge and experience in financial and business matters that we are capable of evaluating the merits and risks of purchasing Notes; and
(v) we are not acquiring Notes with a view to distribution thereof or with any present intention of offering or selling Notes, except as permitted below; provided that the disposition of our property and property of any accounts for which we are acting as fiduciary shall remain at all times within our control.
B-2-1
We understand that the Notes were originally offered and sold in a transaction not involving any public offering within the United States within the meaning of the Securities Act and that the Notes have not been registered under the Securities Act, and we agree, on our own behalf and on behalf of each account for which we acquire any Notes, that we will offer, sell or otherwise transfer such Notes, or any beneficial interest therein, prior to the end of the period (the “Resale Restriction Period”) from the date of original issuance until (a) the date that is one year after the later of (x) the date of the original issuance of the Notes or (y) the last day on which the Issuer or any of its Affiliates was the owner of the Notes, and (b) such later date, if any, as may be required by applicable laws only:
(1) to the Company or any Subsidiary thereof, or
(2) for as long as the Notes are eligible for resale pursuant to Rule 144A, to a person we reasonably believe is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) that purchases for its own account or for the account of a qualified institutional buyer to which notice is given that the transfer is being made in reliance on Rule 144A, or
(3) pursuant to offers and sales to non-U.S. persons that occur outside the United States within the meaning of Regulation S under the Securities Act and in accordance with the laws applicable to us in the jurisdiction in which such purchase is made, or
(4) pursuant to a registration statement which has been declared effective under the Securities Act, or
(5) pursuant to another available exemption from the registration requirements of the Securities Act.
We acknowledge that the Company, others and you will rely upon our confirmations, acknowledgments and agreements set forth herein, and we agree to notify you in promptly writing if any of our representations or warranties herein ceases to be accurate and complete.
B-2-2
THIS LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK.
| (Name of Purchaser) | ||
| By: | ||
| Name: | ||
| Title: | ||
| Address: | ||
B-2-3
Exhibit 4.16
EXECUTION VERSION
COX COMMUNICATIONS, INC.,
as Issuer
COX ENTERPRISES, INC.,
as Guarantor
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
as Trustee
NINETEENTH SUPPLEMENTAL INDENTURE
Dated of June 2, 2021
Supplement to Indenture
Dated as of June 27, 1995
Creating two series of Debt Securities designated
2.600% Notes due 2031
3.600% Notes due 2051
NINETEENTH SUPPLEMENTAL INDENTURE, dated as of the 2nd day of June, 2021, among COX COMMUNICATIONS, INC., a corporation existing under the laws of the State of Delaware, having its principal executive office located at 6205-B Peachtree Dunwoody Road, NE, Atlanta, Georgia 30328 (the “Company”), COX ENTERPRISES, INC., a corporation existing under the laws of the State of Delaware, having its principal executive office located at 6205-A Peachtree Dunwoody Road, NE, Atlanta, Georgia 30328 (the “Guarantor”), and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., a national banking association, having a designated corporate trust office located at 500 Ross Street, 12th Floor, Pittsburgh, Pennsylvania 15262, as trustee (the “Trustee”);
WHEREAS, the Company has heretofore executed and delivered to the Trustee an Indenture, dated as of June 27, 1995 (the “Original Indenture” and, as amended by this Supplemental Indenture, the “Indenture”), providing for the issuance by the Company from time to time of its debentures, notes, bonds or other evidences of indebtedness (in the Original Indenture and herein called the “Debt Securities”), unlimited as to principal amount, to be issued in one or more series;
WHEREAS, the Company, in the exercise of the power and authority conferred upon and reserved to it under the provisions of the Original Indenture and pursuant to appropriate resolutions of the Company’s Board of Directors, and the Guarantor, pursuant to appropriate resolutions of the Guarantor’s Board of Directors, have duly determined to make, execute and deliver to the Trustee this Supplemental Indenture to the Original Indenture in order (i) to establish the form and terms of, and to provide for the creation and issuance of, two new series of Debt Securities designated as the “2.600% Notes due 2031” in the initial aggregate principal amount of $800,000,000 (the “2031 Notes”) and the “3.600% Notes due 2051” in the initial aggregate principal amount of $700,000,000 (the “2051 Notes” and, together with the 2031 Notes, the “Notes”) and (ii) to establish the terms of, and to provide for the grant of, full and unconditional guarantees (the “Guarantees”) by the Guarantor of the Company’s obligations with respect to the Notes and the Company’s obligations under the Indenture in respect thereof;
WHEREAS, Section 9.01 of the Original Indenture provides, among other things, that the Company and the Trustee, at any time and from time to time, without the consent of any Holders, may enter into an indenture supplemental to the Original Indenture to establish the form or terms of Debt Securities of any series as permitted by Sections 2.01 and 2.03 of the Original Indenture and to add guarantees with respect to the Debt Securities of any series;
WHEREAS, all things necessary to make the Notes, when executed by the Company and authenticated and delivered by the Trustee and issued upon the terms and subject to the conditions hereinafter and in the Original Indenture set forth against payment therefor, the valid, binding and legal obligations of the Company and to make this Supplemental Indenture a valid, binding and legal agreement of the Company and the Guarantor, have been done;
| 1 |
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH that, in order to establish the form and terms of the series of Debt Securities designated as the “2.600% Notes due 2031” and the “3.600% Notes due 2051” and to provide for the Guarantees in respect thereof and for and in consideration of the premises and of the covenants contained in the Original Indenture and in this Supplemental Indenture and for other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of the Notes of each series, as follows:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101 Definitions. For all purposes of the Original Indenture and this Supplemental Indenture relating to each series of Debt Securities (consisting of the Notes) created hereby and the Guarantees in respect thereof, except as otherwise expressly provided or unless the context otherwise requires, the terms defined in this Article have the meanings assigned to them in this Article. Each capitalized term that is used in the Original Indenture and this Supplemental Indenture but not defined herein shall have the meaning specified in the Original Indenture.
“Additional Notes” has the meaning specified in Section 202 of this Supplemental Indenture.
“Agent Members” has the meaning specified in Section 209(e)(v) of this Supplemental Indenture.
“Applicable Procedures” means, with respect to any transfer or transaction involving a Global Note or beneficial interest therein, the rules and procedures of the Depositary for such Note, in each case to the extent applicable to such transaction and as in effect from time to time.
“Below Investment Grade Downgrade Event” means, with respect to either series of Notes, the rating on such Notes is lowered in respect of a Change of Control and such Notes are rated below an Investment Grade Rating by each of the Rating Agencies on any date from the first public announcement by the Company of any Change of Control (or pending Change of Control) and ending 60 days following consummation of such Change of Control (which period shall be extended until the ratings are announced if, during such 60-day period, the rating of such Notes is under publicly announced consideration for possible downgrade by each of the Rating Agencies); provided that a Below Investment Grade Downgrade Event otherwise arising by virtue of a particular reduction in rating shall not be deemed to have occurred in respect of a particular Change of Control (and thus shall not be deemed a Below Investment Grade Downgrade Event for purposes of the definition of Change of Control Repurchase Event hereunder) if the Rating Agencies making the reduction in rating to which this definition would otherwise apply do not announce or publicly confirm or inform the Company in writing at its request that the reduction was the result, in whole or in part, of any event or circumstance comprised of or arising as a result of, or in respect of, the applicable Change of Control (whether or not the applicable Change of Control shall have occurred at the time of the Below Investment Grade Downgrade Event). The Company shall request the Rating Agencies to make such confirmation in connection with any Change of Control and shall promptly certify to the Trustee as to whether or not such confirmation has been received or denied.
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“Business Day” means any day other than a Saturday, a Sunday or a legal holiday or a day on which banking institutions or trust companies in The City of New York are authorized or obligated by law to close.
“Capital Stock” of any Person means any and all shares, interests, participations, rights in or other equivalents (however designated) of such Person’s capital stock, other equity interests whether now outstanding or issued after the Issue Date, partnership interests (whether general or limited), limited liability company interests, any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person, including any preferred stock, and any rights (other than debt securities convertible into, or exchangeable for or valued by reference to, Capital Stock until and unless any such debt security is converted into Capital Stock), warrants or options exchangeable for or convertible into such Capital Stock.
“cash” means U.S. legal tender.
“Certificated Notes” means the Notes issued in certificated, registered form without interest coupons and not required to bear the Legend set forth in Section 207(a)(ii) of this Supplemental Indenture.
“Change of Control” means the occurrence of any of the following events:
(1) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act), other than one or more Permitted Holders, becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that a Person shall be deemed to have beneficial ownership of all shares that such Person has the right to acquire, whether such right is exercisable immediately or only after the passage of time), directly or indirectly, of more than 50% of the total outstanding Voting Stock of the Company;
(2) the Company sells, assigns, conveys, transfers, leases or otherwise disposes of (other than by way of merger or consolidation) all or substantially all of its and its Subsidiaries’ assets taken as a whole to any Person, other than any such transaction where:
| (A) | the transferee is a Person controlled, directly or indirectly, by one or more Permitted Holders; or | |
| (B) | following such transaction, each transferee becomes an obligor in respect of the Notes and either (i) each transferee is or becomes a Subsidiary of the transferor of such assets or (ii) the holders of the Voting Stock of the Company immediately prior to such transaction own, directly or indirectly, not less than a majority of the Voting Stock of the transferee immediately after such transaction; |
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(3) the Company consolidates with or merges with or into any Person or any Person consolidates with or merges into or with the Company, in any such event pursuant to a transaction in which the outstanding Voting Stock of the Company is converted into or exchanged for cash, securities or other property, other than any such transaction where:
| (A) | the surviving corporation is a Person controlled, directly or indirectly, by one or more Permitted Holders; or |
| (B) | (i) the outstanding Voting Stock of the Company is changed into or exchanged for Voting Stock of the surviving corporation (or any direct or indirect parent company of the surviving corporation) and (ii) the holders of the Voting Stock of the Company immediately prior to such transaction own, directly or indirectly, not less than a majority of the Voting Stock of the surviving corporation immediately after such transaction; or |
(4) the adoption of a plan relating to the liquidation or dissolution of the Company.
Notwithstanding the foregoing, a transaction will not be deemed to involve a Change of Control if (i) Cox becomes a direct or indirect wholly owned subsidiary of a holding company and (ii) the direct or indirect holders of the Voting Stock of Cox immediately prior to such transaction own, directly or indirectly, at least a majority of the Voting Stock of such holding company.
“Change of Control Repurchase Event’’ means, with respect to either series of Notes, the occurrence of a Change of Control together with a Below Investment Grade Downgrade Event with respect to such series of Notes. Notwithstanding the foregoing, no Change of Control Repurchase Event will be deemed to have occurred in connection with any particular Change of Control unless and until such Change of Control has actually been consummated.
“Clearstream” means Clearstream Banking, S.A. (formerly Cedelbank).
“Corporate Trust Office” means 500 Ross Street, 12th Floor, Pittsburgh, Pennsylvania 15262 or such other address as the Trustee may designate from time to time by notice to the Holders and the Company, or the principal corporate trust office of any successor Trustee (or such other address as such successor Trustee may designate from time to time by notice to the Holders and the Company).
“Cox Descendants” means the lineal descendants of Governor James M. Cox.
“Cox Family Charities” means charitable organizations of which Cox Family Individuals constitute at least a majority of the trustees, members or directors thereof.
“Cox Family Individuals” means (a) the Cox Descendants and (b) the spouses and surviving spouses of Cox Descendants.
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“Cox Family Members” means (a) Cox Family Individuals, (b) Cox Family Trusts, (c) Cox Family Charities or (d) corporations, partnerships, limited partnerships, limited liability companies or any other Person beneficially owned in whole or in part by one or more Cox Family Individuals or Cox Family Trusts or Cox Family Charities; provided that, with respect to clauses (b) and (d), in the case of a Cox Family Trust, a majority of the trustees are Cox Family Individuals, in the case of a general or limited partnership, Cox Family Individuals own, directly or indirectly, more than 50% of the interests or general partner interests, in the case of a limited liability company, Cox Family Individuals hold, directly or indirectly, more than 50% of the vote of the managers, and in the case of any other Person, one or more Cox Family Individuals is the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of more than 50% of the Voting Stock, measured by voting power rather than number of shares, of such Person.
“Cox Family Trusts” means trusts established by or for the benefit of any one or more Cox Family Individuals.
“Credit Agreement” means the Second Amended and Restated Credit Agreement dated as of November 10, 2010, and as amended and restated as of March 28, 2014 and December 13, 2018 (and as may be further amended, supplemented or otherwise modified from time to time), among the Company, the Guarantor, JPMorgan Chase Bank, N.A., as administrative agent, and the lenders from time to time party thereto.
“Debt Securities” has the meaning specified in the first recital hereof.
“Depositary” means, with respect to the Notes issuable in whole or in part in global form, DTC and any nominee thereof, until a successor shall have been appointed and become such pursuant to the applicable provisions of the Indenture, and thereafter “Depositary” shall mean or include such successor and any nominee thereof.
“Distribution Compliance Period” means the 40-day distribution compliance period as defined in Regulation S, or such later date, if any, as may be required by applicable laws.
“DTC” means The Depository Trust Company.
“Electronic Means” shall mean the following communications methods: e-mail, facsimile transmission, secure electronic transmission containing applicable authorization codes, passwords and/or authentication keys issued by the Trustee, or another method or system specified by the Trustee as available for use in connection with its services hereunder.
“Euroclear” means the Euroclear Bank SA/NV.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Fitch” means Fitch Ratings, Inc. or any successor to the rating agency business thereof.
“Global Note” means a Note issued in global form, bearing the legends set forth in Section 207(a)(ii) of this Supplemental Indenture, and deposited with or on behalf of the Depositary.
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“Guarantee” or “Guarantees” has the meaning specified in the recitals hereof.
“Guarantor” has the meaning specified in the first paragraph hereof.
“Holder” and “Noteholder,” in the case of any Note, means the Person in whose name such Note is registered in the Debt Security Register.
“Institutional Accredited Investor” means an institutional “accredited investor” as defined in Rule 501(a)(l), (2), (3) and (7) under the Securities Act.
“Interest Payment Date,” in respect of any Note, has the meaning assigned to it in such Note.
“Investment Grade Rating” means (a) with respect to Moody’s, a rating equal to or higher than Baa3 (or the equivalent), and (b) with respect to S&P and Fitch, a rating equal to or higher than BBB- (or the equivalent) (or, in each case, if such Rating Agency ceases to rate the Notes for reasons outside of the Company’s control, the equivalent investment grade credit rating from any Rating Agency selected by the Company as a replacement Rating Agency).
“Issue Date” means June 2, 2021.
“Legend” means the Transfer Restriction Legend as defined in Section 207(c) of this Supplemental Indenture.
“Moody’s” means Moody’s Investors Service, Inc. or any successor to the rating agency business thereof.
“Notes” has the meaning specified in the recitals hereof.
“Permitted Holders” means (a) the Cox Family Members, (b) the Guarantor and its affiliates, including any successor Person to the Guarantor that owns, directly or indirectly, 100% of the Capital Stock of the Company and such successor Person’s affiliates, and (c) any “group” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act) of the foregoing with respect to which any such Persons exercise a majority of voting power.
“Purchase Agreement” means the Purchase Agreement, dated May 18, 2021, among the Company and J.P. Morgan Securities LLC, RBC Capital Markets, LLC and Wells Fargo Securities, LLC, acting as representatives on behalf of the Initial Purchasers (as defined therein).
“Qualified Institutional Buyer” has the meaning specified in Rule 144A.
“Rating Agencies” means:
| (1) | S&P; | |
| (2) | Moody’s; and | |
| (3) | Fitch; |
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provided, that if S&P, Moody’s or Fitch or all three shall not make a rating of the Notes of either series publicly available, a “nationally recognized statistical rating organization” within the meaning of Section 3(a)(62) of the Exchange Act, selected by the Company, which shall be substituted for S&P, Moody’s or Fitch or all three, as the case may be.
“Redemption Date”, with respect to any Note or portion thereof to be redeemed, means the date fixed for redemption in accordance with the terms of such Note and Article III of the Original Indenture.
“Redemption Price”, with respect to any Note or portion thereof to be redeemed, means the price at which it is to be redeemed as determined in accordance with the terms of the applicable Note and Article III of the Original Indenture.
“Regulation S” means Regulation S under the Securities Act.
“Regulation S Global Note” means a Regulation S Temporary Global Note or Regulation S Permanent Global Note, as applicable.
“Regulation S Permanent Global Note” means a permanent Global Note in the form of the Note attached hereto as Exhibits A-2(i) or A-2(ii), as applicable, and that is deposited with and registered in the name of the Depositary, issued in a denomination equal to the outstanding principal amount of the Regulation S Temporary Global Note upon expiration of the Distribution Compliance Period.
“Regulation S Temporary Global Note” means a temporary Global Note in the form of the Note attached hereto as Exhibit A-2(i) or A-2(ii), as applicable, and that is deposited with and registered in the name of the Depositary, representing Notes sold in offshore transactions in reliance on Regulation S.
“Resale Restriction Termination Date” means (1) in the case of U.S. Global Notes, the date that is one year after the latest of (a) the Issue Date, (b) the original issue date of any Additional Notes of such series and (c) the last date on which the Company or any of its Affiliates were the owner of such Notes (or any predecessor thereof) or, in the case of Regulation S Notes, the date that is 40 days after the latest of (a) the Issue Date, (b) the original issue date of any Additional Notes of such series and (c) the date on which such Notes (or any predecessor thereof) were first offered to persons other than distributors (as defined in Rule 902 of Regulation S) in reliance on Regulation S and (2) such later date, if any, as may be required by applicable laws.
“Restricted Note” means a Note required to bear the Transfer Restriction Legend pursuant to Section 207(c) of this Supplemental Indenture and set forth on the forms of Notes attached as Exhibits A-l(i), A-l(ii), A-2(i) or A-2(ii), as applicable, to this Supplemental Indenture.
“Rule 144A” means Rule 144A under the Securities Act (or any successor provision), as it may be amended from time to time.
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“S&P” means S&P Global Ratings, a division of S&P Global, Inc., or any successor to the rating agency business thereof.
“Securities Act” means the Securities Act of 1933, as amended.
“Supplemental Indenture” means this Nineteenth Supplemental Indenture.
“Termination Date” has the meaning set forth in Section 501(f) of this Supplemental Indenture.
“Transfer Restriction Legend” has the meaning specified in Section 207(c) of this Supplemental Indenture.
“Trustee” has the meaning specified in the first paragraph hereof.
“U.S. Global Note” means a Global Note in the form of the Note attached hereto as Exhibits A-l(i) or A-l(ii), as applicable, to this Supplemental Indenture, and that is deposited with and registered in the name of the Depositary representing Notes sold in reliance on Rule 144A.
“Voting Stock” of a Person means Capital Stock of such Person of the class or classes pursuant to which the holders thereof have the general voting power under ordinary circumstances to elect at least a majority of the board of directors, managers or trustees of such Person (irrespective of whether or not at the time Capital Stock of any other class or classes shall have or might have voting power by reason of the happening of any contingency).
SECTION 102 Section References. Each reference to a particular section set forth in this Supplemental Indenture shall, unless the context otherwise requires, refer to this Supplemental Indenture.
SECTION 103 Effect of Supplemental Indenture. Except as set forth below and except as expressly amended hereby, the Original Indenture shall continue in full force and effect in accordance with the provisions thereof, and the Original Indenture is in all respects hereby ratified and confirmed. This Supplemental Indenture and all its provisions shall be deemed a part of the Original Indenture in the manner and to the extent herein and therein provided. The Original Indenture and this Supplemental Indenture shall be read, taken and construed as one and the same instrument.
This Supplemental Indenture amends and supplements and, to the extent inconsistent therewith, replaces the provisions of the Original Indenture, to which provisions reference is hereby made. For the avoidance of doubt, the provisions of Section 206 hereof amend Section 3.03 of the Original Indenture as set forth in such Section 206; the provisions of Section 210 hereof amend Section 6.01 of the Original Indenture as set forth in such Section 210; the provisions of Section 211 hereof amend Section 7.06 of the Original Indenture as set forth in such Section 211; the provisions of Section 212 hereof amend Section 7.07 of the Original Indenture as set forth in such Section 212; the provisions of Section 213 hereof amend Section 7.08 of the Original Indenture as set forth in such Section 213; the provisions of Sections 214 and 215 hereof amend Section 9.01 of the Original Indenture as set forth in such Sections 214 and 215; the provisions of Article 3 hereof replace the provisions of Section 5.03 of the Original Indenture in their entirety; the provisions of Section 402 hereof replace the provisions of Section 4.08 of this Original Indenture in their entirety; the provisions of Section 403 hereof replace the provisions of Section 4.09 of the Original Indenture in their entirety; and the provisions of Article 6 hereof amend the provisions of Section 7.02 of the Original Indenture as set forth in such Article 6.
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The amendments and supplements to, and replacements of the provisions of, the Original Indenture effected by this Supplemental Indenture shall be applicable only with respect to, and govern the terms of, the Debt Securities issued pursuant to this Supplemental Indenture and the Guarantees in respect thereof, and shall not apply to any other Debt Securities that have been or may be issued under the Original Indenture unless a supplemental indenture with respect to such other Debt Securities specifically incorporates such amendments, supplements and replacements.
The provisions of Article XI of the Original Indenture shall apply to the Notes.
ARTICLE 2
THE NOTES
SECTION 201 Title of the Notes. The 2031 Notes and 2051 Notes shall be known and designated as the “2.600% Notes due 2031” and the “3.600% Notes due 2051” of the Company, respectively.
SECTION 202 Amount. The aggregate principal amount of Notes that may be authenticated and delivered under this Supplemental Indenture is initially limited to $800,000,000 for the 2031 Notes and $700,000,000 for the 2051 Notes, in each case, except for Notes authenticated and delivered upon registration of, transfer of, or exchange for, or in lieu of, other Notes pursuant to Section 2.07, 2.08, 2.09 or 9.04 of the Indenture, or upon repayment in part of any 2031 Note or 2051 Note pursuant to Article III of the Original Indenture. The Company may, from time to time, subject to compliance with any other applicable provisions of this Supplemental Indenture but without the consent of the Holders of any series of Notes, create and issue pursuant to this Supplemental Indenture an unlimited principal amount of additional Notes of such series (in excess of any amounts theretofore issued) having the same terms and conditions to those of the other outstanding Notes of such series (“Additional Notes”); provided that any such Additional Notes (i) may have a different issue date and issue price from other outstanding Notes of such series and (ii) may have a different amount of interest payable on the first Interest Payment Date after issuance than the amount payable on other outstanding Notes of such series; provided further, that in the event such Additional Notes are not fungible with the applicable Notes issued on the Issue Date for U.S. federal income tax purposes, such Additional Notes will be issued with a separate CUSIP number.
SECTION 203 Stated Maturity. The Stated Maturity of the 2031 Notes shall be June 15, 2031. The Stated Maturity of the 2051 Notes shall be June 15, 2051.
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SECTION 204 Interest.
(a) The 2031 Notes shall bear cash interest at the rate of 2.600% per annum from June 2, 2021 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, payable semiannually in arrears on June 15 and December 15 of each year, beginning on December 15, 2021, to the Persons in whose names such Notes are registered at the close of business on the immediately preceding June 1 or December 1, as the case may be, whether or not a Business Day. Interest on the Notes will be computed on the basis of a 360-day year of twelve 30-day months.
(b) The 2051 Notes shall bear cash interest at the rate of 3.600% per annum from June 2, 2021 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, payable semiannually in arrears on June 15 and December 15 of each year, beginning on December 15, 2021, to the Persons in whose names such Notes are registered at the close of business on the immediately preceding June 1 or December 1, as the case may be, whether or not a Business Day. Interest on the Notes will be computed on the basis of a 360-day year of twelve 30-day months.
SECTION 205 Payments.
(a) Payments of principal, premium, if any, and interest on the Notes will be made to the Depositary, or its nominee, as the case may be, as the registered owner and holder of the Global Notes representing the Notes. In the event that the Notes are issued in the form of Certificated Notes, payments of principal, premium, if any, and interest thereon will be at the office or agency of the Trustee in the City of New York designated for such purpose; provided that, with respect to definitive Certificated Notes only, payment of interest, other than interest payable at Stated Maturity or upon redemption, may be made at the option of the Company, by the Trustee to the address of the Person entitled as shown on the register for such Debt Securities.
(b) If any date of Stated Maturity, Redemption Date or Interest Payment Date falls on a day that is not a Business Day, the required payment shall be made on the next Business Day, and no interest shall accrue on the amount so payable for the period between such payment date and the next Business Day.
(c) Payments of principal, premium, if any, and interest on the Notes shall be made in cash or such other coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debt.
SECTION 206 Redemption. Each series of Notes shall be redeemable, in whole or in part, on one or more Redemption Dates at the applicable Redemption Price. If the Redemption Date is not an Interest Payment Date, the amount of the scheduled interest payment on the next succeeding Interest Payment Date will be reduced by the amount of interest accrued to the Redemption Date. In connection with any redemption, notice of the redemption will be delivered at least 15 days but not more than 60 days prior to the applicable Redemption Date to the Holders of the Notes of such series by first-class mail or delivered electronically if held by DTC, to the address of such Holder appearing in the security register or otherwise in accordance with the procedures of DTC. Without limiting the other provisions of Section 3.03 of the Original Indenture, any notice of redemption may, at the Company’s discretion, be subject to the satisfaction of one or more conditions precedent, and if such notice of redemption is conditioned upon the occurrence of one or more conditions precedent, such notice shall state the nature of such conditions precedent. At the Company’s request, the Trustee shall give the notice of redemption in the Company’s name and at the Company’s expense. In such event, the Company shall provide the Trustee with the information required by this Section and the Original Indenture relating to such redemption.
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SECTION 207 Forms; Denominations. The Notes shall be Registered Securities. The Global Notes representing the Notes shall be in substantially the forms attached hereto as Exhibits A-1(i), A-1(ii), A-2(i) or A-2(ii), as applicable.
The Notes are being offered and sold by the Company pursuant to the Purchase Agreement.
(a) Global Notes. (i) Notes offered and sold in reliance on Rule 144A as provided in the Purchase Agreement shall be issued initially in the form of one or more U.S. Global Notes in definitive fully registered form without interest coupons, deposited on behalf of the subscribers for the Notes represented thereby with the Trustee, as custodian for the Depositary and registered in the name of DTC or a nominee thereof, duly executed by the Company and authenticated by the Trustee as provided in the Indenture. The aggregate principal amount of the U.S. Global Notes may from time to time be increased or decreased by adjustments made on the records of the Trustee and the Depositary as hereinafter provided.
Notes offered and sold in offshore transactions in reliance on Regulation S as provided in the Purchase Agreement shall be issued initially in the form of one or more Regulation S Temporary Global Notes in definitive fully registered form without interest coupons, deposited on behalf of the subscribers for the Notes represented thereby with the Trustee, as custodian for the Depositary, for the accounts of Euroclear and Clearstream and registered in the name of DTC or a nominee thereof, duly executed by the Company and authenticated by the Trustee as hereinafter provided. The Distribution Compliance Period shall be terminated upon the receipt by the Trustee of a written certificate from the Depositary, if available, together with copies of certificates from Euroclear and Clearstream, if available, certifying that they have received certification of non-United States beneficial ownership of 100% of the aggregate principal amount of the Regulation S Temporary Global Note (except to the extent of any beneficial owners thereof who acquired an interest therein during the Distribution Compliance Period pursuant to another exemption from registration under the Securities Act and who shall take delivery of a beneficial ownership interest in a U.S. Global Note bearing a Legend, all as contemplated by Section 209(a)(iii) hereof).
Following the termination of the Distribution Compliance Period, beneficial interests in the Regulation S Temporary Global Note shall be exchanged for beneficial interests in the Regulation S Permanent Global Note pursuant to the Applicable Procedures.
Simultaneously with the authentication of the Regulation S Permanent Global Note, the Trustee shall cancel the Regulation S Temporary Global Note. The aggregate principal amount of the Regulation S Temporary Global Note and the Regulation S Permanent Global Note may from time to time be increased or decreased by adjustments made on the records of the Trustee and the Depositary as hereinafter provided.
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Each Global Note shall represent such of the outstanding Notes as shall be specified therein and each shall provide that it shall represent the aggregate principal amount of outstanding Notes from time to time endorsed thereon and the aggregate principal amount of outstanding Notes represented thereby may from time to time be reduced to reflect exchanges or redemptions. Any adjustment of the aggregate principal amount of a Global Note representing the Notes to reflect the amount of any decrease in the principal amount of outstanding Notes represented thereby shall be made by the Trustee in accordance with instructions given by the Holder thereof as required by Section 209 hereof and shall be made on the records of the Trustee and the Depositary.
(ii) Book-Entry Provisions. This Section 207(a)(ii) shall apply only to Global Notes.
The Company shall execute and the Trustee shall, in accordance with this Section 207(a)(ii) and Section 2.02 of the Indenture, authenticate and deliver initially one or more Global Notes that (a) shall be registered in the name of the Depositary, (b) shall be delivered by the Trustee to the Depositary or pursuant to the Depositary’s instructions and (c) shall bear legends substantially to the following effect:
“UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON 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.
“TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS, IN WHOLE BUT NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN ARTICLE TWO OF THE NINETEENTH SUPPLEMENT AL INDENTURE REFERRED TO ON THE REVERSE HEREOF.”
(b) Certificated Notes. Except as otherwise set forth in this Supplemental Indenture, owners of beneficial interests in Global Notes will not be entitled to receive physical delivery of Certificated Notes. Beneficial interests in a Global Note transferred in accordance with Section 209(a)(ii) to an Institutional Accredited Investor who is not a Qualified Institutional Buyer and beneficial interests in a Global Note transferred to the beneficial holders thereof pursuant to Section 209(e) will be issued in certificated, registered form without interest coupons.
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(c) Restrictive Legends. Prior to the Resale Restriction Termination Date, all Global Notes and all Certificated Notes issued in exchange for a beneficial interest in a Global Note shall bear a legend (the “Transfer Restriction Legend”) in substantially the following form, unless such Notes have been sold pursuant to a registration statement that has been declared effective under the Securities Act:
“THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
“THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS A NON-U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH THE LAWS APPLICABLE TO SUCH PURCHASER IN THE JURISDICTION IN WHICH SUCH PURCHASE IS MADE AND (2) AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) THAT IS, IN THE CASE OF U.S. GLOBAL NOTES: ONE YEAR AFTER THE LATEST OF THE ISSUE DATE HEREOF, THE ORIGINAL ISSUE DATE OF ANY ADDITIONAL NOTES AND THE LAST DATE ON WHICH THE COMPANY OR ANY OF ITS AFFILIATES WERE THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), OR IN THE CASE OF REGULATION S GLOBAL NOTES: 40 DAYS AFTER THE LATEST OF THE ISSUE DATE HEREOF, THE ORIGINAL ISSUE DATE OF ANY ADDITIONAL NOTES AND THE DATE ON WHICH THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) WAS FIRST OFFERED TO PERSONS OTHER THAN DISTRIBUTORS (AS DEFINED IN RULE 902 OF REGULATIONS) IN RELIANCE ON REGULATIONS, ONLY (A) TO THE COMPANY, THE GUARANTOR OR ANY SUBSIDIARY THEREOF, (B) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATIONS UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH THE LAWS APPLICABLE TO IT IN THE JURISDICTION IN WHICH SUCH PURCHASE IS MADE, (D) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY’S AND THE TRUSTEE’S, OR REGISTRAR’S, AS APPLICABLE, RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (C) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE FOREGOING CASES, A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE OR REGISTRAR. THIS LEGEND WILL BE REMOVED UPON THE WRITTEN REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE. IN THE CASE OF REGULATIONS GLOBAL NOTES: BY ITS ACQUISITION HEREOF, THE HOLDER HEREOF REPRESENTS THAT IT IS NOT A U.S. PERSON NOR IS IT PURCHASING FOR THE ACCOUNT OF A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATIONS UNDER THE SECURITIES ACT.
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“IN THE CASE OF REGULATIONS TEMPORARY GLOBAL NOTES: THIS GLOBAL NOTE IS A TEMPORARY GLOBAL NOTE FOR PURPOSES OF REGULATIONS UNDER THE SECURITIES ACT. NEITHER THIS TEMPORARY GLOBAL NOTE NOR ANY INTEREST HEREIN MAY BE OFFERED, SOLD OR DELIVERED, EXCEPT AS PERMITTED UNDER THE INDENTURE REFERRED TO BELOW.”
SECTION 208 Transfer and Exchange.
(a) Notwithstanding any provision to the contrary herein, so long as a Global Note remains Outstanding and is held by or on behalf of the Depositary, transfers of such Global Note, in whole or in part, shall be made only in accordance with Section 209 and this Section 208.
(b) Transfers of a Global Note shall be limited to transfers of such Global Note in whole, or in part, to nominees of the Depositary or to a successor of the Depositary or such successor’s nominee.
(c) If Notes are issued upon the transfer, exchange or replacement of Notes subject to restrictions on transfer and bearing a Legend, or if a request is made to remove the Legend on a Note, the Notes so issued shall bear the Legend, or the Legend shall not be removed, as the case may be, unless there is delivered to the Company and the Registrar such satisfactory evidence, which shall include an opinion of counsel, as may be reasonably required by the Company and the Registrar, that neither the Legend nor the restrictions on transfer set forth therein are required to ensure that transfers thereof comply with the provisions of Rule 144A, Rule 144 or Regulation S under the Securities Act, that such Notes are not “restricted” within the meaning of Rule 144 under the Securities Act or that any such exchange or replacement Notes have been issued in a registered transaction under the Securities Act. Upon (i) provision of such satisfactory evidence, or (ii) notification by the Company to the Trustee and the Registrar of the sale or exchange of such Notes pursuant to a registration statement that is effective at the time of such sale, the Trustee, at the written direction of the Company, shall authenticate and deliver a Note that does not bear the Legend. If the Legend is removed from the face of a Note and the Note is subsequently held by an Affiliate of the Company, the Legend shall be reinstated.
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The Trustee and the Registrar shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Supplemental Indenture or under applicable law with respect to any transfer of any interest in any Note (including transfers between or among the Depositary’s participants or beneficial owners of interest in any Global Note) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Supplemental Indenture and to examine the same to determine substantial compliance as to form with the express requirements hereof.
SECTION 209 Global Notes.
(a) Notwithstanding any other provisions of this Supplemental Indenture or the Notes, (A) transfers of a Global Note, in whole or in part, shall be made only in accordance with Section 2.07 of the Indenture and Sections 208 and 209(a)(i) below, (B) transfer of a beneficial interest in a Global Note for a Certificated Note shall comply with Section 2.07 of the Indenture and Section 209(a)(ii) below, (C) transfers of a beneficial interest in a Regulation S Global Note for a beneficial interest in a U.S. Global Note shall comply with Section 2.07 of the Indenture and Section 209(a)(iii) below, and (D) transfers of a Certificated Note shall comply with Section 2.07 of the Indenture and Sections 209(a)(iv) and (v) below.
(i) Transfer of Global Note. A Global Note may not be transferred, in whole or in part, to any Person other than the Depositary or a nominee thereof, and no such transfer to any such other Person may be registered; provided that this clause (i) shall not prohibit any transfer of a Note that is issued in exchange for a Global Note but is not itself a Global Note. No transfer of a Note to any Person shall be effective under the Indenture or the Notes unless and until such Note has been registered in the name of such Person. Nothing in this Section 209(a)(i) shall prohibit or render ineffective any transfer of a beneficial interest in a Global Note effected in accordance with the other provisions of this Section 209(a).
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(ii) Restrictions on Transfer of a Beneficial Interest in a Global Note for a Certificated Note. A beneficial interest in a Global Note may not be exchanged for a Certificated Note except upon satisfaction of the requirements set forth below. Upon receipt by the Trustee of a request for transfer of a beneficial interest in a Global Note in accordance with Applicable Procedures for a Certificated Note in the form satisfactory to the Trustee, together with:
(a) so long as the Notes are Restricted Notes, certification, in the form set forth in Exhibit B-1 attached hereto, and, if requested by the Company or the Registrar, certification in the form set forth in Exhibit B-2 attached hereto, that such beneficial interest in the Global Note is being transferred to an Institutional Accredited Investor;
(b) written instructions to the Trustee to make, or direct the Registrar to make, an adjustment on its books and records with respect to such Global Note to reflect a decrease in the aggregate principal amount of the Notes represented by the Global Note, such instructions to contain information regarding the Depositary account to be credited with such decrease; and
(c) if the Company or Registrar so requests, an opinion of counsel or other evidence reasonably satisfactory to them as to compliance with the restrictions set forth in the applicable Legend, then the Trustee shall cause, or direct the Registrar to cause, in accordance with the standing instructions and procedures existing between the Depositary and the Registrar, the aggregate principal amount of Notes represented by the Global Note to be decreased by the aggregate principal amount of the Certificated Note to be issued, shall issue such Certificated Note and shall debit or cause to be debited to the account of the Person specified in such instructions a beneficial interest in the Global Note equal to the principal amount of the Certificated Note so issued.
(iii) Restrictions on Transfer of Beneficial Interest in a Regulation S Global Note for a Beneficial Interest in a U.S. Global Note.
(a) On or prior to the expiration of the Distribution Compliance Period, a beneficial interest in a Regulation S Global Note may be transferred to a Person who takes delivery in the form of an interest in the corresponding U.S. Global Note only upon receipt by the Trustee of a written certification from the transferor to the effect that such transfer is being made (i)(a) to a Person whom the transferor reasonably believes is a Qualified Institutional Buyer in a transaction meeting the requirements of Rule 144A or (b) pursuant to another exemption from the registration requirements under the Securities Act which is accompanied by an Opinion of Counsel regarding the availability of such exemption and (ii) in accordance with all applicable securities laws of any state of the United States or any other jurisdiction.
(b) Beneficial interests in the U.S. Global Note may be transferred to a Person who takes delivery in the form of an interest in the Regulation S Global Note, whether before or after the expiration of the Distribution Compliance Period, only if the transferor first delivers to the Trustee a written certificate to the effect that such transfer is being made in accordance with Rule 904 of Regulation S or Rule 144 (if available).
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(iv) Transfer and Exchange of Certificated Notes. When Certificated Notes are presented to the Registrar with a request:
| (x) | to register the transfer of such Certificated Notes; or |
(y) to exchange such Certificated Notes for an equal principal amount of Certificated Notes of other authorized denominations,
the Registrar shall register the transfer or make the exchange as requested if its reasonable requirements for such transaction are met; provided, however, that the Certificated Notes surrendered for transfer or exchange:
(a) shall be duly endorsed or accompanied by a written instrument of transfer in form reasonably satisfactory to the Company and the Registrar, duly executed by the Holder thereof or his attorney duly authorized in writing; and
(b) so long as such Notes are Restricted Notes, such Notes are being transferred or exchanged pursuant to clause (A), (B) or (C) below, and are accompanied by the following additional information and documents, as applicable:
(A) if such Certificated Notes are being delivered to the Registrar by a Holder for registration in the name of such Holder, without transfer, a certification from such Holder to that effect; or
(B) if such Certificated Notes are being transferred to the Company, a certification to that effect; or
(C) if such Certificated Notes are being transferred pursuant to an exemption from registration, (i) a certification to that effect (in the form set forth in Exhibit B-1 and B-2, if applicable) and (ii) if the Company or Registrar so requests, an opinion of counsel or other evidence reasonably satisfactory to them as to the compliance with the restrictions set forth in the Transfer Restriction Legend.
(v) Restrictions on Transfer of a Certificated Note for a Beneficial Interest in a Global Note. A Certificated Note may not be exchanged for a beneficial interest in a Global Note except upon satisfaction of the requirements set forth below.
Upon receipt by the Trustee of a Certificated Note, duly endorsed or accompanied by appropriate instruments of transfer, in form satisfactory to the Trustee, together with:
(x) so long as the Notes are Restricted Notes, certification, in the form set forth in Exhibit B-1, that such Certificated Note is being transferred to a Qualified Institutional Buyer in accordance with Rule 144A; and
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(y) written instructions directing the Trustee to make, or to direct the Registrar to make, an adjustment on its books and records with respect to such Global Note to reflect an increase in the aggregate principal amount of the Notes represented by the Global Note, such instructions to contain information regarding the Depositary account to be credited with such increase,
then the Trustee shall cancel such Certificated Note and cause, or direct the Registrar to cause, in accordance with the standing instructions and procedures existing between the Depositary and the Registrar, the aggregate principal amount of Notes represented by the Global Note to be increased by the aggregate principal amount of the Certificated Note to be exchanged, and shall credit or cause to be credited to the account of the Person specified in such instructions a beneficial interest in the Global Note equal to the principal amount of the Certificated Note so cancelled. If no Global Notes are then Outstanding, the Company shall issue and the Trustee shall authenticate, upon receipt of a Company Order, a new Global Note in the appropriate principal amount.
(b) Subject to the succeeding paragraph, every Note shall be subject to the restrictions on transfer provided in the applicable Legend including the delivery of an opinion of counsel, if so provided. Whenever any Restricted Note is presented or surrendered for registration of transfer or for exchange for a Note registered in a name other than that of the Holder, such Note must be accompanied by a certificate in substantially the form set forth in Exhibit B-1, dated the date of such surrender and signed by the Holder of such Note, as to compliance with such restrictions on transfer. The Registrar shall not be required to accept for such registration of transfer or exchange any Note not so accompanied by a properly completed certificate.
(c) The restrictions imposed by the Transfer Restriction Legend upon the transferability of any Restricted Note shall cease and terminate when such Note has been sold or exchanged pursuant to an effective registration statement under the Securities Act or may be transferred in compliance with Rule 144 under the Securities Act (or any successor provision thereto). Any Note as to which such restrictions on transfer shall have expired in accordance with their terms or shall have terminated may, upon a surrender of such Note for exchange to the Registrar in accordance with the provisions of this Section 209 (accompanied, in the event that such restrictions on transfer have terminated by reason of a transfer in compliance with Rule 144 or any successor provision, by an opinion of counsel having substantial experience in practice under the Securities Act and otherwise reasonably acceptable to the Company, addressed to the Company, the Trustee and the Registrar and in form acceptable to the Company, to the effect that the transfer of such Note has been made in compliance with Rule 144 or such successor provision), be exchanged for a new Note, of like tenor and aggregate principal amount, which shall not bear the Transfer Restriction Legend. The Company shall inform the Trustee of the effective date of any registration statement registering the Notes under the Securities Act. The Trustee shall not be liable for any action taken or omitted to be taken by it in good faith in accordance with the aforementioned opinion of counsel.
(d) As used in the preceding two paragraphs of this Section 209, the term “transfer” encompasses any sale, pledge, transfer, hypothecation or other disposition of any Note.
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(e) The provisions of clauses (i), (ii), (iii), (iv), and (v) below shall apply only to Global Notes:
(i) Notwithstanding any other provisions of the Indenture or the Notes, except as provided in Section 209(a)(ii), a Global Note shall not be exchanged in whole or in part for a Note registered in the name of any Person other than the Depositary or one or more nominees thereof,provided that a Global Note may be exchanged for Certificated Notes registered in the names of any Person designated by the Depositary in the event that (A) the Depositary has notified the Company that it is unwilling or unable to continue as depositary for such Global Note or the Depositary has ceased to be a “clearing agency” registered under the Exchange Act, and a successor Depositary is not appointed by the Company within 90 days or (B) an Event of Default has occurred and is continuing with respect to the Notes. Any Global Note exchanged pursuant to clause (A) above shall be so exchanged in whole and not in part, and any Global Note exchanged pursuant to clause (B) above may be exchanged in whole or from time to time in part as directed by the Depositary. Prior to the issuance of Certificated Notes in exchange for any beneficial interests in a Regulation S Global Note, the holder of such beneficial interests shall, as a condition to such exchange, certify in a form satisfactory to the Company that such holder is a non-U.S. person (as that term is defined in Regulation S under the Securities Act) or a U.S. person who purchased such beneficial interest in a transaction that did not require registration under the Securities Act. In the event that Certificated Notes are issued in respect of beneficial interests in a Regulation S Global Note at any time prior to the end of the Distribution Compliance Period (other than in a transaction subject to Rule 144A), the Company shall as promptly as practicable, institute procedures, including appropriate certifications, reasonably designed to ensure that any transfer of such Certificated Notes prior to the end of the Distribution Compliance Period is made only in accordance with the provisions of Regulation S, pursuant to registration under the Securities Act or pursuant to an exemption from such registration.
(ii) Notes issued in exchange for a Global Note or any portion thereof shall be issued in definitive, fully registered form, without interest coupons, shall have an aggregate principal amount equal to that of such Global Note or portion thereof to be so exchanged, shall be registered in such names and be in such authorized denominations as the Depositary shall designate and shall bear the applicable Legend. Any Global Note to be exchanged in whole shall be surrendered by the Depositary to the Trustee, as Registrar. With regard to any Global Note to be exchanged in part, either such Global Note shall be so surrendered for exchange or, if the Trustee is acting as custodian for the Depositary or its nominee with respect to such Global Note, the principal amount thereof shall be reduced, by an amount equal to the portion thereof to be so exchanged, by means of an appropriate adjustment made on the records of the Trustee. Upon any such surrender or adjustment, the Trustee shall authenticate and deliver the Note issuable on such exchange to or upon the order of the Depositary or an authorized representative thereof.
(iii) Subject to the provisions of clause (v) below, the registered Holder may grant proxies and otherwise authorize any Person, including Agent Members (as defined below) and Persons that may hold interests through Agent Members, to take any action which a Holder is entitled to take under the Indenture or the Notes.
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(iv) In the event of the occurrence of any of the events specified in clause (i) above, the Company will promptly make available to the Trustee a reasonable supply of Certificated Notes.
(v) Neither any members of, or participants in, the Depositary (collectively, the “Agent Members”) nor any other Persons on whose behalf Agent Members may act shall have any rights under the Indenture with respect to any Global Note registered in the name of the Depositary or any nominee thereof, or under any such Global Note, and the Depositary or such nominee, as the case may be, may be treated by the Company, the Trustee and any agent of the Company or the Trustee as the absolute owner and holder of such Global Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee or any agent of the Company or the Trustee from giving effect to any written certification, proxy or other authorization furnished by the Depositary or such nominee, as the case may be, or impair, as between the Depositary, its Agent Members and any other Person on whose behalf an Agent Member may act, the operation of customary practices of such Persons governing the exercise of the rights of a Holder of any Note.
SECTION 210 Events of Default. For purposes of this Supplemental Indenture and the Notes issued hereunder, Section 6.01 of the Original Indenture is hereby amended by deleting the clause immediately following subsection (i) in the first sentence of such Section and inserting in its place the following:
then and in each and every case that an Event of Default described in clause (a), (b), (c), (d), (e), (f), (g) (with respect to Restricted Subsidiaries only), (h) (with respect to Restricted Subsidiaries only) or (i) with respect to Debt Securities of that series at the time Outstanding occurs and is continuing, unless the principal of and interest on all the Debt Securities of that series shall have already become due and payable, either the Trustee or the Holders of not less than 25% in aggregate principal amount of the Debt Securities of that series then Outstanding hereunder, by notice in writing to the Company (and to the Trustee if given by Holders), may declare the principal of (or, if the Debt Securities of that series are Original Issue Discount Debt Securities, such portion of the principal amount as may be specified in the terms of that series) and interest on all the Debt Securities of that series to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything in this Indenture or in the Debt Securities or Coupons appertaining thereto of that series contained to the contrary notwithstanding.
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SECTION 211 Compensation and Reimbursement. For purposes of this Supplemental Indenture and the Notes issued hereunder, Section 7.06 of the Original Indenture is hereby amended to be replaced with the following:
The Company covenants and agrees to pay in Dollars to the Trustee such compensation as the Company and the Trustee shall from time to time agree in writing for all services rendered by it hereunder (which shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust), and, except as otherwise expressly provided herein, the Company will pay or reimburse in Dollars the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any of the provisions of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents, attorneys and counsel and of all Persons not regularly in its employ) except any such expense, disbursement or advances as may arise from its negligence or wilful misconduct. The Company also covenants to indemnify in Dollars each of the Trustee (which shall be deemed to include its officers, directors, employees, and agents) or any predecessor Trustee for, and to hold it harmless against, any loss, damage, claim, liability or expense, including the reasonable fees and expenses of counsel, and taxes (other than taxes based upon, measured by or determined by the income of the Trustee) incurred without negligence or wilful misconduct on the part of the Trustee, arising out of or in connection with the acceptance or administration of this trust or trusts hereunder, including the reasonable costs and expenses of defending itself against any claim of liability in connection with the exercise or performance of any of its powers or duties hereunder. The obligations of the Company under this Section 7.06 to compensate and indemnify the Trustee and to pay or reimburse the Trustee for expenses, disbursements and advances shall constitute additional indebtedness hereunder and shall survive the resignation or removal of the Trustee and/or the satisfaction and discharge of this Indenture. The Company and the Holders agree that such additional indebtedness shall be secured by a Lien prior to that of the Debt Securities and Coupons, if any, upon all property and funds held or collected by the Trustee, as such, except funds held in trust for the payment of principal of, and premium, if any, or interest on, particular Debt Securities and Coupons.
SECTION 212 Right of Trustee to Rely on an Officers’ Certificate Where No Other Evidence Specifically Prescribed. With respect to the Notes, Section 7.07 of the Original Indenture is hereby amended to be replaced with the following:
Except as otherwise provided in Section 7.01, whenever in the administration of the provisions of this Indenture the Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering or omitting any action hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) may, be deemed to be conclusively proved and established by an Officers’ Certificate delivered to the Trustee, and such certificate shall be full warrant to the Trustee for any action taken, suffered or omitted by it under the provisions of this Indenture.
SECTION 213 Separate Trustee; Replacement of Trustee. With respect to the Notes, Section 7.08 of the Original Indenture is hereby amended to be replaced with the following:
The Company may, but need not, appoint a separate Trustee for any one or more series of Debt Securities. The Trustee may resign with respect to one or more or all series of Debt Securities at any time by giving 30 days’ notice to the Company. The Holders of a majority in principal amount of the Debt Securities of a particular series may remove the Trustee for such series and only such series by so notifying the Trustee and may appoint a successor Trustee with 30 days’ notice. The Company shall remove the Trustee with 30 days’ notice if:
| (1) | the Trustee fails to comply with Section 7.10; |
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| (2) | the Trustee is adjudged bankrupt or insolvent; |
(3) a receiver or other public officer takes charge of the Trustee or its property; or
| (4) | the Trustee otherwise becomes incapable of acting. |
If the Trustee resigns, is removed by the Company or by the Holders of a majority in principal amount of the Debt Securities of a particular series and such Holders do not reasonably promptly appoint a successor Trustee, or if a vacancy exists in the office of Trustee for any reason (the Trustee in such event being referred to herein as the retiring Trustee), the Company shall promptly appoint a successor Trustee. No resignation or removal of the Trustee and no appointment of a successor Trustee shall become effective until the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of this Section 7.08.
A successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Company. Thereupon the resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee under this Indenture. The successor Trustee shall send a notice of its succession to Holders of Debt Securities of each applicable series. The retiring Trustee shall promptly transfer all property held by it as Trustee to the successor Trustee, subject to the Lien provided for in Section 7.06.
If a successor Trustee does not take office within 30 days after the retiring Trustee resigns or is removed, the retiring Trustee or the Holders of 25% in principal amount of the Debt Securities of any applicable series may petition, at the expense of the Company, any court of competent jurisdiction for the appointment of a successor Trustee for the Debt Securities of such series.
If the Trustee fails to comply with Section 7.10, any Holder of Debt Securities of any applicable series may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee for the Debt Securities of such series.
Notwithstanding the replacement of the Trustee pursuant to this Section 7.08, the Company’s obligations under Section 7.06 shall continue for the benefit of the retiring Trustee.
In the case of the appointment hereunder of a separate or successor trustee with respect to the Debt Securities of one or more series, the Company, any retiring Trustee and each successor or separate Trustee with respect to the Debt Securities of any applicable series shall execute and deliver an indenture supplemental hereto (1) which shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of any retiring Trustee with respect to the Debt Securities of any series as to which any such retiring Trustee is not retiring shall continue to be vested in such retiring Trustee and (2) that shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trustee hereunder by more than one trustee, it being understood that nothing herein or in such supplemental Indenture shall constitute such Trustees co-trustees of the same trust and that each such separate, retiring or successor Trustee shall be Trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee.
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SECTION 214 With respect to the Notes, Section 9.0l(f) of the Original Indenture is hereby deleted in its entirety and replaced with “[Reserved]” in lieu thereof.
SECTION 215 With respect to the Notes, the last paragraph of Section 9.01 of the Original Indenture is hereby deleted in its entirety and replaced with the following:
After an amendment under the Indenture becomes effective with respect to the Notes of a particular series, the Company is required to deliver to Holders of the Notes of such series, by first-class mail or delivered electronically if held by DTC, to the address of such Holder appearing in the security register or otherwise in accordance with the procedures of DTC, a notice briefly describing such amendment. However, the Company’s failure to give such notice to all Holders of the Notes of such series, or any defect in such notice, will not impair or affect the validity of the amendment.
ARTICLE 3
REPORTS BY THE COMPANY
So long as any of the Debt Securities are “restricted securities” within the meaning of Rule 144(a)(3) under the Securities Act, the Company will, during any period in which it is not subject to Sections 13 or 15(d) of the Exchange Act or it is not exempt from such reporting requirements pursuant to and in compliance with Rule 12g3-2(b) under the Exchange Act, provide to each Holder of Notes and to each prospective purchaser (as designated by such Holder) of Notes, upon the request of such Holder or prospective purchaser, any information required to be provided by Rule 144A(d)(4) under the Securities Act.
ARTICLE 4
ADDITIONAL COVENANTS
SECTION 401 Purchase of Notes Upon a Change of Control Repurchase Event.
(a) If a Change of Control Repurchase Event occurs with respect to either series of Notes, each Holder of the Notes of such series will have the right to require that the Company purchase all or any part (in denominations of $2,000 and integral multiples of $1,000 in excess thereof) of such Holder’s Notes of such series pursuant to a Change of Control offer (a “Change of Control Offer”) on the terms set forth in this Supplemental Indenture, except that the Company shall not be obligated to repurchase the Notes of such series pursuant to this Section 401 in the event that the Company has exercised the right to redeem all of the Notes of such series as described in Section 206. In the Change of Control Offer with respect to either series of Notes, the Company will offer to purchase all of the Notes of such series at a purchase price (the “Change of Control Purchase Price”) in cash in an amount equal to 101% of the principal amount of such series of Notes, plus accrued but unpaid interest, if any, to, but not including, the date of purchase (the “Change of Control Purchase Date”) (subject to the rights of Holders of record on the relevant record date to receive interest due on the relevant Interest Payment Date if such Notes have not been repurchased prior to such record date).
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(b) Within 30 days after any Change of Control Repurchase Event with respect to either series of Notes or, at the Company’s option, prior to such Change of Control but after the public announcement of such pending Change of Control, the Company must notify the Trustee of such series of Notes and give written notice of the Change of Control Repurchase Event to the Trustee and each Holder of Notes of such series, by first-class mail or delivered electronically if held by DTC, to the address of such Holder appearing in the security register or otherwise in accordance with the procedures of DTC. The notice must state, among other things:
(1) that a Change of Control Repurchase Event has occurred or may occur with respect to such series of Notes and the date of such event;
(2) the purchase price and the purchase date which shall be fixed by the Company on a Business Day no earlier than 15 days nor later than 60 days from the date the notice is mailed or delivered electronically, other than as may be required by law;
(3) that any Note not tendered will continue to accrue interest;
(4) that, unless the Company defaults in the payment of the Change of Control Purchase Price, any Notes accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest after the Change of Control Purchase Date; and
(5) other procedures that a Holder of Notes must follow to accept a Change of Control Offer or to withdraw acceptance of the Change of Control Offer.
In addition, the notice, if sent prior to the date of the consummation of the Change of Control, will state that the Change of Control Offer is conditioned on the Change of Control being consummated on or prior to the Change of Control Purchase Date.
(c) If Holders of not less than 90% in aggregate principal amount of the outstanding Notes of an applicable series validly tender and do not withdraw such Notes in a Change of Control Offer and the Company, or any third party making a Change of Control Offer in lieu of the Company, as described in clause (d) below, purchases all of the Notes of such series validly tendered and not withdrawn by such Holders, the Company will have the right, upon not less than 15 nor more than 60 days’ prior notice, with such notice given not more than 30 days following the Change of Control Purchase Date, to redeem all Notes of such series that remain Outstanding following such purchase at a redemption price in cash equal to the Change of Control Purchase Price plus, to the extent not included in the Change of Control Purchase Price, accrued and unpaid interest, if any, on the Notes of such series that remain Outstanding to, but not including, the date of redemption (subject to the rights of Holders of record on relevant record dates to receive interest due on the relevant Interest Payment Date).
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(d) The Company will comply with Rule 14e-l under the Exchange Act, and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control Repurchase Event. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 401, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Section 401 by virtue of its compliance with such securities laws and regulations. The Company will not be required to make a Change of Control Offer upon a Change of Control Repurchase Event with respect to either series of Notes if a third party makes the Change of Control Offer with respect to such series of Notes in the manner, at the times and otherwise in compliance with the requirements described in this Supplemental Indenture applicable to a Change of Control Offer made by the Company and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer.
(e) On the Change of Control Purchase Date with respect to either series of Notes, the Company will, to the extent permitted by law:
(1) accept for payment all Notes of such series or portions thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Depositary or the Trustee, as applicable, an amount equal to the aggregate Change of Control Purchase Price in respect of all Notes of such series or portions thereof so tendered; and
(3) deliver, or cause to be delivered, to the Trustee for cancellation of the Notes of such series so accepted together with an Officers’ Certificate to the Trustee stating that such Notes or portions thereof have been tendered to and purchased by the Company.
SECTION 402 Limitation on Liens. With respect to the Notes, Section 4.08 of the Original Indenture is hereby amended to be replaced with the following:
As long as any Notes of any series remain Outstanding, the Company will not, and will not permit any Restricted Subsidiary to, create, incur or assume any Lien (other than Permitted Liens) on Restricted Property to secure the payment of Indebtedness of the Company or any Restricted Subsidiary if immediately after the creation, incurrence or assumption of such Lien, the aggregate outstanding principal amount of all Indebtedness of the Company and its Restricted Subsidiaries that is secured by Liens (other than Permitted Liens) on Restricted Property would exceed the greater of (i) $1,100,000,000 or (ii) 15% of the aggregate outstanding principal amount of all Indebtedness of the Company and its Restricted Subsidiaries (whether or not so secured), unless effective provision is made whereby the Notes of such series (together with, if the Company shall so determine, any other Indebtedness ranking equally with the Notes of such series, whether then existing or later created) are secured equally and ratably with (or prior to) such Indebtedness (but only for so long as such Indebtedness is so secured).
SECTION 403 Limitation on Indebtedness of Restricted Subsidiaries. For purposes of this Supplemental Indenture and the Notes issued hereunder, Section 4.09 of the Original Indenture is hereby amended to be replaced with the following:
25
As long as any Notes of any series remain Outstanding, the Company will not permit any Restricted Subsidiary to incur or assume any Indebtedness if immediately after the incurrence or assumption of such Indebtedness, the aggregate outstanding principal amount of all Indebtedness of the Restricted Subsidiaries would exceed the greater of (i) $1,100,000,000 or (ii) 15% of the aggregate outstanding principal amount of all Indebtedness of the Company and its Restricted Subsidiaries; provided that in any event, a Restricted Subsidiary may incur Indebtedness to extend, renew or replace Indebtedness of such Restricted Subsidiary to the extent that the principal amount of the Indebtedness so incurred does not exceed the principal amount of the Indebtedness extended, renewed or replaced thereby immediately prior to such extension, renewal or replacement plus any premium, accrued and unpaid interest or capitalized interest payable thereon.
ARTICLE 5
SECTION 501 Guarantee.
(a) The Guarantor hereby fully and unconditionally guarantees the Notes of each series and the obligations of the Company thereunder and under the Indenture, and guarantees to each Holder of a Note of such series authenticated and delivered by the Trustee, and to the Trustee on behalf of such Holder, that (i) the principal of (and premium, if any) and interest on the Notes of such series will be paid in full when due, whether at Stated Maturity, by acceleration or otherwise (including, without limitation, the amount that would become due but for the operation of any automatic stay provision of any federal bankruptcy law), together with interest on the overdue principal, if any, and interest on any overdue interest, to the extent lawful, and all other obligations of the Company to the Holders or the Trustee under the Indenture or the Notes of such series will be paid in full or performed, all in accordance with the terms of the Indenture and the Notes of such series; and (ii) in case of any extension of time of payment or renewal of any Notes of such series or of any such other obligations, the same will be paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise.
(b) The Guarantor hereby agrees that, upon the occurrence of an Event of Default in payment of principal (or premium, if any) or interest on an applicable series of Notes, whether at Stated Maturity, by acceleration, purchase or otherwise, legal proceedings may be instituted by the Trustee on behalf of, or by, a Holder of such Notes of such series, subject to the terms and conditions set forth in the Indenture, directly against the Guarantor to enforce the Guarantee without first proceeding against the Company or any other guarantor. The Guarantor agrees that if, after the occurrence and during the continuance of an Event of Default with respect to an applicable series of Notes, the Trustee or any of the Holders are prevented by applicable law from exercising their respective rights to accelerate the maturity of the Notes of such series, to collect interest on the Notes of such series, or to enforce or exercise any other right or remedy with respect to the Notes of such series, the Guarantor will pay to the Trustee for the account of the Holders, upon demand therefor, the amount that would otherwise have been due and payable had such rights and remedies been permitted to be exercised by the Trustee or any of the Holders.
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(c) With respect to an applicable series of Notes, unless and until the Termination Date (as defined herein) has occurred, or the Guarantor shall be released in accordance with Section 504 of this Supplemental Indenture, to the fullest extent permitted by applicable law, the Guarantor shall remain obligated hereunder and the Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against the Company for liquidation or reorganization, should the Company become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Company’s assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Notes of such series are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Notes of such series, whether as a “voidable preference”, “fraudulent transfer” or otherwise, all as though such payment or performance had not been made. In the event that any payment, or any part thereof, is rescinded, reduced, restored or returned, the Notes of such series shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned.
(d) To the fullest extent permitted by applicable law, the Guarantor waives diligence, presentment, protest and notice of protest, demand for payment or performance, notice of default or nonpayment, notice of acceptance and any other notice in respect of the Company’s obligations under any series of Notes and under the Indenture, and any defense arising by reason of any disability or other defense of the Company or the Guarantor with respect to such obligations (other than the defense that the Termination Date has occurred or the Guarantor has been released in accordance with Section 504 of this Supplemental Indenture). The Guarantor understands and agrees that the Guarantee contained in this Article 5 shall be construed as a continuing, absolute and unconditional guarantee of payment and performance and not merely of collectability, and its Guarantee of a particular series of Notes and the obligations of the Company under the Indenture hereunder shall not be affected by, and shall remain in full force and effect without regard to, and hereby waives all rights, claims or defenses that it might otherwise have (now or in the future) with respect to each of the following (whether or not the Guarantor has knowledge thereof): (i) the validity, regularity or enforceability of the Notes of such series or the Indenture or the absence of any action to enforce the same, (ii) the recovery of any judgment against the Company or any action to enforce the same, (iii) any renewal, extension or acceleration of, or any increase in the amount of the Company’s obligations under such series of Notes and under the Indenture (whether or not any increase is committed, contemplated or provided for by the Indenture or the Notes of such series on the date hereof), (iii) any failure, omission or delay in enforcement (by agreement or otherwise), or the stay or enjoining (by court order, operation of law or otherwise) of the exercise of enforcement, of any claim or demand or any right, power or remedy (whether arising under the Indenture or the Notes of such series, at law, in equity or otherwise) with respect to the Company’s obligations under such series of Notes and under the Indenture or (iv) any other circumstance whatsoever (with or without notice to or knowledge of the Guarantor) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Guarantor under the Guarantee contained in this Article 5, in bankruptcy or in any other instance (in each case, other than the occurrence of the Termination Date or the release of the Guarantor in accordance with Section 504 of this Supplemental Indenture).
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(e) The Guarantor further agrees that, as between the Guarantor, on the one hand, and the Holders and the Trustee, on the other hand (i) subject to the terms and provisions of this Supplemental Indenture, the maturity of the obligations under an applicable series of Notes guaranteed hereby may be accelerated as provided in Article VI of the Original Indenture for the purposes of this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (ii) in the event of any acceleration of such obligations as provided in Article VI of the Original Indenture, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor for the purpose of this Guarantee.
(f) Subject to Section 504 of this Supplemental Indenture, the Guarantee of a series of Notes contained in this Article 5 shall remain in full force and effect until all the obligations of the Company under such series of Notes and under the Indenture shall have been satisfied by payment in full (such date, the “Termination Date”).
(g) The Guarantee by the Guarantor of a series of Notes shall be independent of and shall not be affected by the Guarantee by the Guarantor of any other series of Notes or other Debt Securities issued under the Indenture.
SECTION 502 Subrogation. The Guarantor shall be subrogated to all rights of Holders against the Company in respect of any amounts paid by the Guarantor pursuant to its Guarantee; provided, however, that if an Event of Default has occurred and is continuing with respect to a series of Notes, the Guarantor shall not be entitled to enforce or receive any payments arising out of, or based upon, such right of subrogation until all amounts then due and payable by the Company under the Indenture or the applicable series of Notes shall have been paid in full.
SECTION 503 Reinstatement. Subject to Section 504 of this Supplemental Indenture, the Guarantee of a series of Notes contained in this Article 5 shall continue to be effective, or be reinstated, as the case may be, if at any time payment, or any part thereof, of any of the Company’s obligations with respect to such series of Notes or the Indenture is rescinded or must otherwise be restored or returned by the Trustee or any Holder upon the insolvency, bankruptcy, dissolution, liquidation_or reorganization of the Guarantor, or upon or as a result of the appointment of a receiver, intervenor or conservator of, or trustee or similar officer for, the Guarantor or any substantial part of its property, or otherwise, all as though such payments had not been made.
SECTION 504 Release of Guarantee. (a) The Guarantor shall, upon the occurrence of any of the following events, be automatically and unconditionally released and discharged from all obligations with respect to the Notes of an applicable series, the Indenture and the Guarantee of such series of Notes without any action required on the part of the Trustee or any Holder:
(i) on the Termination Date;
(ii) upon the termination or release of the Company’s guarantee of the Guarantor’s obligations under the Credit Agreement;
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(iii) upon any covenant defeasance or legal defeasance with respect to such series of Notes and the Indenture, or upon the discharge of the Company’s obligations with respect to such series of Notes and obligations under the Indenture in accordance with its terms;
(iv) upon (A) the consolidation or merger by the Company with or into any Person or (B) the conveyance, transfer or lease of all or substantially all the assets of the Company, in a transaction that complies with the Indenture, such that the Company ceases to be a subsidiary of the Guarantor; or
(v) upon (A) the consolidation or merger by the Guarantor with or into any Person or (B) the conveyance, transfer or lease of all or substantially all the assets of the Guarantor, such that the Company ceases to be a subsidiary of the Guarantor.
The release of the Guarantor’s Guarantee of an applicable series of Notes hereunder shall be independent of and shall not be affected by the release of the Guarantor’s Guarantee of any other series of Notes or other Debt Securities issued under the Indenture.
SECTION 505 Execution and Delivery. The Guarantor hereby agrees that the Guarantee of an applicable series of Notes will remain in full force and effect notwithstanding any failure to endorse on each Note of such series a notation of such Guarantee.
ARTICLE 6
MISCELLANEOUS PROVISIONS
The Trustee makes no undertaking or representations in respect of, and shall not be responsible in any manner whatsoever for and in respect of, the validity or sufficiency of this Supplemental Indenture or the Guarantees or the proper authorization or the due execution hereof by the Company or the Guarantor or for or in respect of the recitals and statements contained herein, all of which recitals and statements are made solely by the Company.
The Trustee (which shall be deemed to include the Paying Agent when the Trustee is also acting as a Paying Agent) shall have the right to accept and act upon instructions, including funds transfer instructions (“Instructions”) given pursuant to this Indenture and delivered using Electronic Means (as defined above); provided, however, that the Company shall provide to the Trustee an incumbency certificate listing officers with the authority to provide such Instructions (“Authorized Officers”) and containing specimen signatures of such Authorized Officers, which incumbency certificate shall be amended by the Company whenever a person is to be added or deleted from the listing. If the Company elects to give the Trustee Instructions using Electronic Means and the Trustee in its discretion elects to act upon such Instructions, the Trustee’s understanding of such Instructions shall be deemed controlling. The Company understands and agrees that the Trustee cannot determine the identity of the actual sender of such Instructions and that the Trustee shall conclusively presume that directions that purport to have been sent by an Authorized Officer listed on the incumbency certificate provided to the Trustee have been sent by such Authorized Officer. The Company shall be responsible for ensuring that only Authorized Officers transmit such Instructions to the Trustee and that the Company and all Authorized Officers are solely responsible to safeguard the use and confidentiality of applicable user and authorization codes, passwords and/or authentication keys upon receipt by the Company. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such Instructions notwithstanding such directions conflict or are inconsistent with a subsequent written instruction. The Company agrees: (i) to assume all risks arising out of the use of Electronic Means to submit Instructions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized Instructions, and the risk of interception and misuse by third parties; (ii) that it is fully informed of the protections and risks associated with the various methods of transmitting Instructions to the Trustee and that there may be more secure methods of transmitting Instructions than the method(s) selected by the Company; (iii) that the security procedures (if any) to be followed in connection with its transmission oflnstructions provide to it a commercially reasonable degree of protection in light of its particular needs and circumstances; and (iv) to notify the Trustee immediately upon learning of any compromise or unauthorized use of the security procedures.
29
For purposes of this Supplemental Indenture and the Notes, Section 7.02 of the Original Indenture is hereby amended to include the following additional rights of the Trustee:
(i) in no event shall the Trustee be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action;
(j) in no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, epidemics or pandemics, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances;
(k) the Trustee shall not be deemed to have notice of any Default or Event of Default unless a Responsible Officer of the Trustee has actual written notice thereof at the designated Corporate Trust Office of the Trustee, and such notice references the Notes and this Indenture;
(1) the rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder;
(m) the Trustee may require that the Company deliver a certificate setting forth the names of individuals, and their titles and direct-dial telephone numbers, of officers authorized at such time to take specified actions pursuant to this Indenture;
30
(n) the Trustee shall not be liable for errors in judgment made in good faith unless it is proved that the Trustee was grossly negligent in ascertaining the pertinent facts; and
(o) the Trustee may act at the direction of requisite Holders without liability.
For purposes of this Supplemental Indenture and the Notes, Section 2.04 of the Original Indenture is hereby amended as follows:
(a) the Company shall be permitted to execute the Notes by manual, facsimile or electronic signature (so long as any such electronic signature is a true representation of the actual signature of the signatory thereof); and
(b) the Trustee shall be permitted to authenticate the Notes by manual, facsimile or electronic signature (so long as any such electronic signature is a true representation of the actual signature of the signatory thereof).
This Supplemental Indenture shall be governed by, and construed in accordance with, the laws of the State of New York.
Each of the Company, the Guarantor and the Trustee (i) expressly and irrevocably consents to submit itself to the exclusive personal jurisdiction of the state courts in the Borough of Manhattan in the City of New York in the State of New York, and any federal court located in the Borough of Manhattan in the City of New York in the State of New York, together with any appellate court therefrom, with respect to all actions and proceedings arising out of this Indenture, the Notes or the Guarantees and (ii) expressly and irrevocably waives (and agrees not to plead or claim) any objection to the laying of venue of any action or proceeding arising out of this Indenture, the Notes or the Guarantees in such court or that any such action or proceeding brought in any such court has been brought in an inconvenient forum.
This Supplemental Indenture may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument. Any such counterparts may be executed manually, electronically or by facsimile.
EACH OF THE COMPANY, THE GUARANTOR, THE TRUSTEE AND THE HOLDERS BY ACCEPTANCE OF THE NOTES HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS SUPPLEMENTAL INDENTURE, THE NOTES OR THE TRANSACTION CONTEMPLATED HEREBY.
31
In order to comply with applicable tax laws (inclusive of rules, regulations and interpretations promulgated by competent authorities) related to the Indenture in effect from time to time (collectively, “Applicable Tax Law”) that a foreign financial institution, issuer, trustee, paying agent or other party is or has agreed to be subject to, the Company agrees (i) upon reasonable written request of the Trustee, to use commercially reasonable efforts to provide to the Trustee, to the extent available, sufficient information about the parties and/or transactions (including any modification to the terms of such transactions) so that the Trustee can determine whether it has tax-related obligations under Applicable Tax Law and (ii) that the Trustee shall be entitled to make any withholding or deduction in respect of taxes from payments under the Indenture to the extent necessary to comply with Applicable Tax Law for which the Trustee shall not have any liability. Nothing in the immediately preceding sentence shall be construed as obligating the Company to make any “gross up” payment or similar reimbursement in connection with a payment in respect of which amounts are so withheld or deducted. The terms of this paragraph shall survive the satisfaction and discharge of the Indenture.
[SIGNATURE PAGES FOLLOW]
32
IN WITNESS WHEREOF, the Parties have executed this Supplemental Indenture by their duly authorized signatories as of the date first above written.
| COX COMMUNICATIONS, INC., as Issuer | |||
| By: | /s/ Perley McBride | ||
| Name: | Perley McBride | ||
| Title: | Executive Vice President and Chief | ||
| Financial Officer | |||
| By: | /s/ Charles L. Odom | ||
| Name: | Charles L. Odom | ||
| Title: | Vice President and Treasurer | ||
[Signature Page to Nineteenth Supplemental Indenture]
| COX ENTERPRISES, INC., as Guarantor | |||
| By: | /s/ Maria L. Friedman | ||
| Name: | Maria L. Friedman | ||
| Title: | Senior Vice President, Tax and | ||
| Treasury Services | |||
| By: | /s/ Charles L. Odom | ||
| Name: | Charles L. Odom | ||
| Title: | Vice President and Treasurer | ||
[Signature Page to Nineteenth Supplemental Indenture]
| THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee | |||
| By: | /s/ Julie Hoffman-Ramos | ||
| Name: | Julie Hoffman-Ramos | ||
| Title: | Vice President | ||
[Signature Page to Nineteenth Supplemental Indenture]
EXHIBIT A-l(i)
[FORM OF FACE OF SECURITY]
[TRANSFER RESTRICTION LEGEND]
[THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS A NON-US. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION WITHIN THE MEANING OF REGULATIONS UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH THE LAWS APPLICABLE TO SUCH PURCHASER IN THE JURISDICTION IN WHICH SUCH PURCHASE IS MADE AND (2) AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) THAT IS ONE YEAR AFTER THE LATEST OF THE ISSUE DATE HEREOF, THE ORIGINAL ISSUE DATE OF ANY ADDITIONAL NOTES (AS DEFINED IN THE INDENTURE GOVERNING THIS SECURITY) AND THE LAST DATE ON WHICH THE COMPANY OR ANY OF ITS AFFILIATES WERE THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE COMPANY, THE GUARANTOR OR ANY SUBSIDIARY THEREOF, (B) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C) PURSUANT TO OFFERS AND SALES TO NON-US. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATIONS UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH THE LAWS APPLICABLE TO IT IN THE JURISDICTION IN WHICH SUCH PURCHASE IS MADE, (D) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY’S AND THE TRUSTEE’S, OR REGISTRAR’S, AS APPLICABLE, RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (C) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE FOREGOING CASES, A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE OR REGISTRAR. THIS LEGEND WILL BE REMOVED UPON THE WRITTEN REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.]
[GLOBAL NOTES LEGEND]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON 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.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS, IN WHOLE BUT NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN ARTICLE TWO OF THE NINETEENTH SUPPLEMENTAL INDENTURE REFERRED TO ON THE REVERSE HEREOF.]
A- 1
| No. R- | PRINCIPAL AMOUNT |
| CUSIP No. 224044 CN5 | $ |
COX COMMUNICATIONS, INC.
2.600% Notes due 2031
COX COMMUNICATIONS, INC., a Delaware corporation (hereinafter called the “Company,” which term includes any successor corporation under the Indenture referred to below), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of [] ($) on June 15, 2031 (the “Maturity Date”), unless previously redeemed, and to pay interest thereon from June 2, 2021 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, payable semiannually on June 15 and December 15 of each year (each, an “Interest Payment Date”), commencing December 15, 2021 at the rate of 2.600% per annum, until the principal hereof is paid or duly made available for payment. Interest shall be computed on the basis of a 360-day year of twelve 30-day months. The interest so payable and punctually paid or duly provided for on any Interest Payment Date will, as provided in the Indenture, be paid to the Person in whose name this Note (or one or more predecessor securities) is registered at the close of business on the regular record date for such interest, which shall be June 1 or December 1 (whether or not a Business Day), as the case may be, immediately preceding such Interest Payment Date. Any such interest which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date shall forthwith cease to be payable to the registered Holder hereof on the relevant regular record date by virtue of having been such Holder, and may be paid to the Person in whose name this Note (or one or more predecessor securities) is registered at the close of business on a subsequent special record date (which shall be not more than 15 days and not less than 10 days before the payment date) for the payment of such defaulted interest to be fixed by the Trustee, notice whereof shall be given to the Holders of Notes of this series not less than 10 days prior to such special record date, or may be paid at any time in any other lawful manner, all as more fully provided in such Indenture. If any Interest Payment Date, Redemption Date or the Maturity Date falls on a day that is not a Business Day, the required payment shall be made on the next Business Day as if it were made on the date such payment was due and no interest shall accrue on the amount so payable for the period from and after such Interest Payment Date, Redemption Date or the Maturity Date, as the case may be, to such next Business Day. Payments of principal, premium, if any, and interest hereunder shall be made in such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts and shall be made immediately available to the Holder (as defined below) hereof.
This Note is one of the duly authorized series of Debt Securities of the Company, designated as the Company’s “2.600% Notes due 2031” (the “Notes”), initially limited to an aggregate principal amount of $800,000,000, all issued or to be issued under and pursuant to an Indenture dated as of June 27, 1995 (the “Original Indenture”), as supplemented by the Nineteenth Supplemental Indenture dated as of June 2, 2021 (the “Nineteenth Supplemental Indenture” and, together with the Original Indenture, the “Indenture”), duly executed and delivered by the Company and Cox Enterprises, Inc., a Delaware corporation, as guarantor (the “Guarantor”), to The Bank of New York Mellon Trust Company, N.A, as trustee (hereinafter referred to as the “Trustee”), to which Indenture and all indentures supplemental thereto reference is hereby made for a description of the rights, limitation of rights, obligations, duties and immunities thereunder of the Trustee, the Company, the Guarantor and the Holders (the words “Holders” or “Holder” meaning the registered holders or registered holder of the Notes).
The Notes and the obligations of the Company thereunder and under the Indenture shall be fully and unconditionally guaranteed on a senior unsecured basis by the Guarantor (the “Guarantee”). The Guarantee will be automatically and unconditionally released and discharged upon the occurrence of certain events without any action required on the part of the Trustee or any Holder in accordance with the terms of the Nineteenth Supplemental Indenture.
Prior to the Par Call Date, this Note will be redeemable at the option of the Company at any time, in whole or in part, at a Redemption Price equal to the greater of (i) 100% of the principal amount of this Note to be redeemed and (ii) the sum, as determined by the Quotation Agent, of the present values of the principal amount of this Note to be redeemed and the remaining scheduled payments of interest on the principal amount of this Note to be redeemed (assuming that this Note matured on the Par Call Date), exclusive of interest accrued to the Redemption Date, in each case, discounted from their respective scheduled payment dates to the Redemption Date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as defined below) plus 15 basis points, plus, in each case, accrued and unpaid interest thereon to, but not including, the Redemption Date. On or after the Par Call Date, this Note will be redeemable at the option of the Company, in whole at any time or in part from time to time, at a Redemption Price equal to 100% of the principal amount of this Note being redeemed, plus accrued and unpaid interest thereon to, but not including, the Redemption Date.
“Comparable Treasury Issue” means, with respect to this Note subject to redemption, the United States Treasury security selected by the Quotation Agent as having an actual or interpolated maturity comparable to the remaining life of this Note to be redeemed (assuming that this Note matured on the Par Call Date) that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity with the remaining life of this Note to be redeemed (assuming, for this purpose, that this Note matured on the Par Call Date).
“Comparable Treasury Price” means, with respect to any Redemption Date, the average of five Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and lowest of such Reference Treasury Dealer Quotations, or, if the Quotation Agent obtains fewer than five such Reference Treasury Dealer Quotations, the average of all such quotations.
“Par Call Date” means March 15, 2031.
“Quotation Agent” means the Reference Treasury Dealer appointed by the Company.
“Reference Treasury Dealer” means, with respect to any Redemption Date, (i) J.P. Morgan Securities LLC, RBC Capital Markets, LLC and Wells Fargo Securities, LLC and each of their respective successors and (ii) two other nationally recognized investment banking firms (or their respective affiliates) that the Company selects in connection with such Redemption Date, and each of their respective successors; provided, however, that if any of the foregoing shall cease to be a U.S. government securities dealer in the United States (a “Primary Treasury Dealer”), the Company will substitute another Primary Treasury Dealer.
“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and any Redemption Date, the average, as determined by the Quotation Agent, of the bid and asked prices for the Comparable Treasury Issue, expressed in each case as a percentage of its principal amount, quoted in writing to the Quotation Agent by such Reference Treasury Dealer at 3:30 p.m., New York City time, on the third Business Day preceding such Redemption Date.
“Treasury Rate” means, with respect to any Redemption Date, the rate per annum equal to the semi-annual or equivalent yield to maturity or interpolated (on a day-count basis) of the Comparable Treasury Issue, calculated on the third Business Day preceding such Redemption Date using a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such Redemption Date.
If money sufficient to pay the Redemption Price and accrued and unpaid interest on the principal amount of this Note to be redeemed on the Redemption Date is deposited with the Trustee or Paying Agent on or before the Redemption Date and certain other conditions specified in the Indenture are satisfied, then on or after such date, interest will cease to accrue on the principal amount of this Note called for redemption.
Notice of any redemption will be delivered at least 15 days but not more than 60 days before the Redemption Date to the Holder hereof by first-class mail or delivered electronically if held by DTC, to the address of such Holder appearing in the security register or otherwise in accordance with the procedures of DTC. Any notice of redemption may, at the Company’s discretion, be subject to the satisfaction of one or more conditions precedent, and if such notice of redemption is conditioned upon the occurrence of one or more conditions precedent, such notice shall state the nature of such conditions precedent.
Except as provided above, this Note is not redeemable by the Company prior to maturity.
This Note is not subject to any sinking fund.
Upon the occurrence of a Change of Control Repurchase Event, unless the Company has redeemed this Note or the Company has defeased this Security or satisfied and discharged this Note, the Holder of this Note shall have the right to require that the Company purchase all or a portion (such principal amount to be equal to $2,000 or integral multiples of $1,000 in excess thereof), of this Note at a purchase price in cash in an amount equal to 101% of the principal amount thereof, plus accrued but unpaid interest, if any, to, but not including, the date of purchase. Within 30 days following any Change of Control Repurchase Event, the Company shall deliver a notice to each Holder, in accordance with Section 40l(b) of the Nineteenth Supplemental Indenture, with a copy to the Trustee, which notice shall govern the terms of the Change of Control Offer. Notice of any redemption pursuant to the Change of Control Offer will be mailed or delivered electronically at least 15 days but not more than 60 days before the Redemption Date to the Holder hereof in accordance with the Nineteenth Supplemental Indenture.
In case an Event of Default shall occur and be continuing, the principal hereof may be declared, and upon such declaration shall become, due and payable, in the manner, with the effect and subject to the conditions provided in the Indenture.
Subject to certain exceptions set forth in the Indenture, (i) the Indenture may be amended with respect to the Notes with the consent of the Holders of at least a majority in principal amount outstanding of the Notes and (ii) any default or noncompliance with any provisions applicable to the Notes may be waived with the consent of the Holders of a majority in principal amount outstanding of the Notes. Subject to certain exceptions set forth in the Indenture, without the consent of any Holder, the Company and the Trustee may amend the Indenture or the Notes to, among other things, cure any ambiguity, defect or inconsistency, or to provide for the assumption by a successor person of the obligations of the Company under the Indenture, or to add additional covenants or surrender any right or power conferred on the Company, or to establish the form or terms of the Notes of any series, or to appoint a successor Trustee or provide for administration of the trust by more than one Trustee, or to add to, delete from or revise the conditions, limitations, and restrictions on the authorized amount, terms or purposes of issue, authentication and delivery of the Notes or to add any additional event of default, or to modify the provisions of the Indenture as shall be necessary to facilitate the defeasance and discharge of the Notes as shall not adversely affect any Holders, or to secure the Notes, or to make provisions with respect to exchange rights of Holders, or to make any change that does not adversely affect the rights of any Holder.
Subject to certain conditions, the Company at any time may terminate some or all of its obligations and the obligations of the Guarantor under the Notes and the Indenture if the Company deposits with the Trustee money or U.S. Government Obligations for the payment of principal, premimn, if any, and interest on the Notes to the Maturity Date.
If money for the payment of principal or interest remains unclaimed for two years, the Trustee or Paying Agent shall pay the money back to the Company at its request unless an abandoned property law designates another Person. After any such payment, Holders entitled to the money must look only to the Company and not to the Trustee for payment.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and prernium, if any, and interest on this Note at the place, at the respective times, at the rate, and in the coin or currency herein prescribed.
No director, officer, employee or stockholder, as such, of the Company or the Guarantor shall have any liability for any obligations of the Company under this Note or the Indenture or the obligations of the Guarantor under the Indenture, as applicable, or for any claim based on, in respect of or by reason of such obligations or their creation. Each Holder, by accepting this Note, waives and releases all such liability. The waiver and release are part of the consideration for the issue of this Note.
This Note and the Indenture shall be governed by and construed in accordance with the law of the State of New York applicable to agreements made or instruments entered into and, in each case, performed in said state.
Ownership of this Note shall be proved by the register for the Notes kept by the Registrar. The Company, the Trustee and any agent of the Company may treat the Person in whose name a Note is registered as the absolute owner thereof for all purposes.
Pursuant to a recommendation promulgated by the Committee on Uniform Securities Identification Procedures (“CUSIP”), the Company has caused a CUSIP number to be printed on this Note and has directed the Trustee to use the CUSIP number as a convenience to Holders. No representation is made as to the correctness of such numbers and reliance may be placed only on the other identification numbers printed on this Note.
Terms used herein without definition that are defined in the Indenture shall have the meanings assigned to them in the Indenture.
Unless the Certificate of Authentication hereon has been executed by the Trustee under the Indenture referred to herein by the manual, facsimile or electronic signature of one of its authorized officers, or on behalf of the Trustee by the manual, facsimile or electronic signature of an authorized officer of the Trustee’s authenticating agent, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed, manually or by facsimile.
Date:
| COX COMMUNICATIONS, INC. | ||
| By: | ||
| Name: | ||
| Title: | ||
| By: | ||
| Name: | ||
| Title: | ||
CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated therein referred to in the within-mentioned Indenture.
| THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A. | ||
| as Trustee | ||
| By: | ||
| Authorized Signatory | ||
| Dated: | ||
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby sell(s) assign(s) and transfer(s) unto
Please insert social security number 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 attorney to transfer said Note of Cox Communications, Inc. on the books of Cox Communications, Inc. 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 this Note in every particular without alteration or enlargement or any change whatsoever. The Signature must be guaranteed by an “eligible guarantor institution meeting the requirements of the Registrar, which requirements include memberships or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934.
EXHIBIT A-l(ii)
[FORM OF FACE OF SECURITY]
[TRANSFER RESTRICTION LEGEND]
[THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT’’), OR ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS A NON-US. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION WITHIN THE MEANING OF REGULATIONS UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH THE LAWS APPLICABLE TO SUCH PURCHASER IN THE JURISDICTION IN WHICH SUCH PURCHASE IS MADE AND (2) AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) THAT IS ONE YEAR AFTER THE LATEST OF THE ISSUE DATE HEREOF, THE ORIGINAL ISSUE DATE OF ANY ADDITIONAL NOTES (AS DEFINED IN THE INDENTURE GOVERNING THIS SECURITY) AND THE LAST DATE ON WHICH THE COMPANY OR ANY OF ITS AFFILIATES WERE THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE COMPANY, THE GUARANTOR OR ANY SUBSIDIARY THEREOF, (B) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C) PURSUANT TO OFFERS AND SALES TO NON-US. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATIONS UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH THE LAWS APPLICABLE TO IT IN THE JURISDICTION IN WHICH SUCH PURCHASE IS MADE, (D) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY’S AND THE TRUSTEE’S, OR REGISTRAR’S, AS APPLICABLE, RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (C) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE FOREGOING CASES, A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE OR REGISTRAR. THIS LEGEND WILL BE REMOVED UPON THE WRITTEN REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.]
[GLOBAL NOTES LEGEND]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON 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.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS, IN WHOLE BUT NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN ARTICLE TWO OF THE NINETEENTH SUPPLEMENTAL INDENTURE REFERRED TO ON THE REVERSE HEREOF.]
| No. R- | PRINCIPAL AMOUNT |
| CUSIP No. 224044 CPO | $ |
COX COMMUNICATIONS, INC.
3.600% Notes due 2051
COX COMMUNICATIONS, INC., a Delaware corporation (hereinafter called the “Company,” which term includes any successor corporation under the Indenture referred to below), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of [ ] ($ ) on June 15, 2051 (the “Maturity Date”), unless previously redeemed, and to pay interest thereon from June 2, 2021 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, payable semiannually on June 15 and December 15 of each year (each, an “Interest Payment Date”), commencing December 15, 2021 at the rate of 3.600% per annum, until the principal hereof is paid or duly made available for payment. Interest shall be computed on the basis of a 360-day year of twelve 30-day months. The interest so payable and punctually paid or duly provided for on any Interest Payment Date will, as provided in the Indenture, be paid to the Person in whose name this Note (or one or more predecessor securities) is registered at the close of business on the regular record date for such interest, which shall be June 1 or December 1 (whether or not a Business Day), as the case may be, immediately preceding such Interest Payment Date. Any such interest which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date shall forthwith cease to be payable to the registered Holder hereof on the relevant regular record date by virtue of having been such Holder, and may be paid to the Person in whose name this Note (or one or more predecessor securities) is registered at the close of business on a subsequent special record date (which shall be not more than 15 days and not less than 10 days before the payment date) for the payment of such defaulted interest to be fixed by the Trustee, notice whereof shall be given to the Holders of Notes of this series not less than 10 days prior to such special record date, or may be paid at any time in any other lawful manner, all as more fully provided in such Indenture. If any Interest Payment Date, Redemption Date or the Maturity Date falls on a day that is not a Business Day, the required payment shall be made on the next Business Day as if it were made on the date such payment was due and no interest shall accrue on the amount so payable for the period from and after such Interest Payment Date, Redemption Date or the Maturity Date, as the case may be, to such next Business Day. Payments of principal, premium, if any, and interest hereunder shall be made in such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts and shall be made immediately available to the Holder (as defined below) hereof.
This Note is one of the duly authorized series of Debt Securities of the Company, designated as the Company’s “3.600% Notes due 2051” (the “Notes”), initially limited to an aggregate principal amount of $700,000,000, all issued or to be issued under and pursuant to an Indenture dated as of June 27, 1995 (the “Original Indenture”), as supplemented by the Nineteenth Supplemental Indenture dated as of June 2, 2021 (the “Nineteenth Supplemental Indenture” and, together with the Original Indenture, the “Indenture”), duly executed and delivered by the Company and Cox Enterprises, Inc., a Delaware corporation, as guarantor (the “Guarantor”), to The Bank of New York Mellon Trust Company, N.A, as trustee (hereinafter referred to as the “Trustee”), to which Indenture and all indentures supplemental thereto reference is hereby made for a description of the rights, limitation of rights, obligations, duties and immunities thereunder of the Trustee, the Company, the Guarantor and the Holders (the words “Holders” or “Holder” meaning the registered holders or registered holder of the Notes).
The Notes and the obligations of the Company thereunder and under the Indenture shall be fully and unconditionally guaranteed on a senior unsecured basis by the Guarantor (the “Guarantee”). The Guarantee will be automatically and unconditionally released and discharged upon the occurrence of certain events without any action required on the part of the Trustee or any Holder in accordance with the terms of the Nineteenth Supplemental Indenture.
Prior to the Par Call Date, this Note will be redeemable at the option of the Company at any time, in whole or in part, at a Redemption Price equal to the greater of (i) 100% of the principal amount of this Note to be redeemed and (ii) the sum, as determined by the Quotation Agent, of the present values of the principal amount of this Note to be redeemed and the remaining scheduled payments of interest on the principal amount of this Note to be redeemed (assuming that this Note matured on the Par Call Date), exclusive of interest accrued to the Redemption Date, in each case, discounted from their respective scheduled payment dates to the Redemption Date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as defined below) plus 20 basis points, plus, in each case, accrued and unpaid interest thereon to, but not including, the Redemption Date. On or after the Par Call Date, this Note will be redeemable at the option of the Company, in whole at any time or in part from time to time, at a Redemption Price equal to 100% of the principal amount of this Note being redeemed, plus accrued and unpaid interest thereon to, but not including, the Redemption Date.
“Comparable Treasury Issue” means, with respect to this Note subject to redemption, the United States Treasury security selected by the Quotation Agent as having an actual or interpolated maturity comparable to the remaining life of this Note to be redeemed (assuming that this Note matured on the Par Call Date) that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity with the remaining life of this Note to be redeemed (assuming, for this purpose, that this Note matured on the Par Call Date).
“Comparable Treasury Price” means, with respect to any Redemption Date, the average of five Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and lowest of such Reference Treasury Dealer Quotations, or, if the Quotation Agent obtains fewer than five such Reference Treasury Dealer Quotations, the average of all such quotations.
“Par Call Date” means December 15, 2050.
“Quotation Agent” means the Reference Treasury Dealer appointed by the Company.
“Reference Treasury Dealer” means, with respect to any Redemption Date, (i) J.P. Morgan Securities LLC, RBC Capital Markets, LLC and Wells Fargo Securities, LLC and each of their respective successors and (ii) two other nationally recognized investment banking firms (or their respective affiliates) that the Company selects in connection with such Redemption Date, and each of their respective successors; provided, however, that if any of the foregoing shall cease to be a U.S. government securities dealer in the United States (a “Primary Treasury Dealer”), the Company will substitute another Primary Treasury Dealer.
“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and any Redemption Date, the average, as determined by the Quotation Agent, of the bid and asked prices for the Comparable Treasury Issue, expressed in each case as a percentage of its principal amount, quoted in writing to the Quotation Agent by such Reference Treasury Dealer at 3:30 p.m., New York City time, on the third Business Day preceding such Redemption Date.
“Treasury Rate” means, with respect to any Redemption Date, the rate per annum equal to the semi-annual or equivalent yield to maturity or interpolated (on a day-count basis) of the Comparable Treasury Issue, calculated on the third Business Day preceding such Redemption Date using a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such Redemption Date.
If money sufficient to pay the Redemption Price and accrued and unpaid interest on the principal amount of this Note to be redeemed on the Redemption Date is deposited with the Trustee or Paying Agent on or before the Redemption Date and certain other conditions specified in the Indenture are satisfied, then on or after such date, interest will cease to accrue on the principal amount of this Note called for redemption.
Notice of any redemption will be delivered at least 15 days but not more than 60 days before the Redemption Date to the Holder hereof by first-class mail or delivered electronically if held by DTC, to the address of such Holder appearing in the security register or otherwise in accordance with the procedures of DTC. Any notice of redemption may, at the Company’s discretion, be subject to the satisfaction of one or more conditions precedent, and if such notice of redemption is conditioned upon the occurrence of one or more conditions precedent, such notice shall state the nature of such conditions precedent.
Except as provided above, this Note is not redeemable by the Company prior to maturity.
This Note is not subject to any sinking fund.
Upon the occurrence of a Change of Control Repurchase Event, unless the Company has redeemed this Note or the Company has defeased this Security or satisfied and discharged this Note, the Holder of this Note shall have the right to require that the Company purchase all or a portion (such principal amount to be equal to $2,000 or integral multiples of $1,000 in excess thereof), of this Note at a purchase price in cash in an amount equal to 101% of the principal amount thereof, plus accrued but unpaid interest, if any, to, but not including, the date of purchase. Within 30 days following any Change of Control Repurchase Event, the Company shall deliver a notice to each Holder, in accordance with Section 40l(b) of the Nineteenth Supplemental Indenture, with a copy to the Trustee, which notice shall govern the terms of the Change of Control Offer. Notice of any redemption pursuant to the Change of Control Offer will be mailed or delivered electronically at least 15 days but not more than 60 days before the Redemption Date to the Holder hereof in accordance with the Nineteenth Supplemental Indenture.
In case an Event of Default shall occur and be continuing, the principal hereof may be declared, and upon such declaration shall become, due and payable, in the manner, with the effect and subject to the conditions provided in the Indenture.
Subject to certain exceptions set forth in the Indenture, (i) the Indenture may be amended with respect to the Notes with the consent of the Holders of at least a majority in principal amount outstanding of the Notes and (ii) any default or noncompliance with any provisions applicable to the Notes may be waived with the consent of the Holders of a majority in principal amount outstanding of the Notes. Subject to certain exceptions set forth in the Indenture, without the consent of any Holder, the Company and the Trustee may amend the Indenture or the Notes to, among other things, cure any ambiguity, defect or inconsistency, or to provide for the assumption by a successor person of the obligations of the Company under the Indenture, or to add additional covenants or surrender any right or power conferred on the Company, or to establish the form or terms of the Notes of any series, or to appoint a successor Trustee or provide for administration of the trust by more than one Trustee, or to add to, delete from or revise the conditions, limitations, and restrictions on the authorized amount, terms or purposes of issue, authentication and delivery of the Notes or to add any additional event of default, or to modify the provisions of the Indenture as shall be necessary to facilitate the defeasance and discharge of the Notes as shall not adversely affect any Holders, or to secure the Notes, or to make provisions with respect to exchange rights of Holders, or to make any change that does not adversely affect the rights of any Holder.
Subject to certain conditions, the Company at any time may terminate some or all of its obligations and the obligations of the Guarantor under the Notes and the Indenture if the Company deposits with the Trustee money or U.S. Government Obligations for the payment of principal, premium, if any, and interest on the Notes to the Maturity Date.
If money for the payment of principal or interest remains unclaimed for two years, the Trustee or Paying Agent shall pay the money back to the Company at its request unless an abandoned property law designates another Person. After any such payment, Holders entitled to the money must look only to the Company and not to the Trustee for payment.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and premium, if any, and interest on this Note at the place, at the respective times, at the rate, and in the coin or currency herein prescribed.
No director, officer, employee or stockholder, as such, of the Company or the Guarantor shall have any liability for any obligations of the Company under this Note or the Indenture or the obligations of the Guarantor under the Indenture, as applicable, or for any claim based on, in respect of or by reason of such obligations or their creation. Each Holder, by accepting this Note, waives and releases all such liability. The waiver and release are part of the consideration for the issue of this Note.
This Note and the Indenture shall be governed by and construed in accordance with the law of the State of New York applicable to agreements made or instruments entered into and, in each case, performed in said state.
Ownership of this Note shall be proved by the register for the Notes kept by the Registrar. The Company, the Trustee and any agent of the Company may treat the Person in whose name a Note is registered as the absolute owner thereof for all purposes.
Pursuant to a recommendation promulgated by the Committee on Uniform Securities Identification Procedures (“CUSIP”), the Company has caused a CUSIP number to be printed on this Note and has directed the Trustee to use the CUSIP number as a convenience to Holders. No representation is made as to the correctness of such numbers and reliance may be placed only on the other identification numbers printed on this Note.
Terms used herein without definition that are defined in the Indenture shall have the meanings assigned to them in the Indenture.
Unless the Certificate of Authentication hereon has been executed by the Trustee under the Indenture referred to herein by the manual, facsimile or electronic signature of one of its authorized officers, or on behalf of the Trustee by the manual, facsimile or electronic signature of an authorized officer of the Trustee’s authenticating agent, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed, manually or by facsimile.
Date:
| COX COMMUNICATIONS, INC. | ||
| By: | ||
| Name: | ||
| Title: | ||
| By: | ||
| Name: | ||
| Title: | ||
CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated therein referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
as Trustee
| By: | ||
| Authorized Signatory | ||
Dated:
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby sell(s) assign(s) and transfer(s) unto
Please insert social security number 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 attorney to transfer said Note of Cox Communications, Inc. on the books of Cox Communications, Inc. 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 this Note in every particular without alteration or enlargement or any change whatsoever. The Signature must be guaranteed by an “eligible guarantor institution meeting the requirements of the Registrar, which requirements include memberships or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934.
EXHIBIT A-2(i)
[FORM OF FACE OF SECURITY]
[TRANSFER RESTRICTION LEGEND]
[THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS A NON-U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION WITHIN THE MEANING OF REGULATIONS UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH THE LAWS APPLICABLE TO SUCH PURCHASER IN THE JURISDICTIOIN IN WHICH SUCH PURCHASE IS MADE AND (2) AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) THAT IS 40 DAYS AFTER THE LATEST OF THE ISSUE DATE HEREOF, THE ORIGINAL ISSUE DATE OF ANY ADDITIONAL NOTES (AS DEFINED IN THE INDENTURE GOVERNING THIS SECURITY) AND THE DATE ON WHICH THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) WAS FIRST OFFERED TO PERSONS OTHER THAN DISTRIBUTORS (AS DEFINED IN RULE 902 OF REGULATIONS) IN RELIANCE ON REGULATIONS, ONLY (A) TO THE COMPANY, THE GUARANTOR OR ANY SUBSIDIARY THEREOF, (B) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATIONS UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH THE LAWS APPLICABLE TO IT IN THE JURISDICTION IN WHICH SUCH PURCHASE IS MADE, (D) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY’S AND THE TRUSTEE’S, OR REGISTRAR’S, AS APPLICABLE, RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (C) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE FOREGOING CASES, A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE OR REGISTRAR. THIS LEGEND WILL BE REMOVED UPON THE WRITTEN REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE. BY ITS ACQUISITION HEREOF, THE HOLDER HEREOF REPRESENTS THAT IT IS NOT A U.S. PERSON NOR IS IT PURCHASING FOR THE ACCOUNT OF A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATIONS UNDER THE SECURITIES ACT.
THIS GLOBAL NOTE IS A TEMPORARY GLOBAL NOTE FOR PURPOSES OF REGULATIONS UNDER THE SECURITIES ACT. NEITHER THIS TEMPORARY GLOBAL NOTE NOR ANY INTEREST HEREIN MAY BE OFFERED, SOLD OR DELIVERED, EXCEPT AS PERMITTED UNDER THE INDENTURE REFERRED TO BELOW.]
[GLOBAL NOTES LEGEND]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON 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.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS, IN WHOLE BUT NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN ARTICLE TWO OF THE NINETEENTH SUPPLEMENTAL INDENTURE REFERRED TO ON THE REVERSE HEREOF.]
| No.R- | PRINCIPAL AMOUNT |
| CUSIP No. U22018 AY8 | $ |
COX COMMUNICATIONS, INC.
2.600% Notes due 2031
COX COMMUNICATIONS, INC., a Delaware corporation (hereinafter called the “Company,” which term includes any successor corporation under the Indenture referred to below), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of [ ] ($ ) on June 15, 2031 (the “Maturity Date”), unless previously redeemed, and to pay interest thereon from June 2, 2021 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, payable semiannually on June 15 and December 15 of each year (each, an “Interest Payment Date”), commencing December 15, 2021 at the rate of 2.600% per annum, until the principal hereof is paid or duly made available for payment. Interest shall be computed on the basis of a 360-day year of twelve 30-day months. The interest so payable and punctually paid or duly provided for on any Interest Payment Date will, as provided in the Indenture, be paid to the Person in whose name this Note (or one or more predecessor securities) is registered at the close of business on the regular record date for such interest, which shall be June 1 or December 1 (whether or not a Business Day), as the case may be, immediately preceding such Interest Payment Date. Any such interest which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date shall forthwith cease to be payable to the registered Holder hereof on the relevant regular record date by virtue of having been such Holder, and may be paid to the Person in whose name this Note (or one or more predecessor securities) is registered at the close of business on a subsequent special record date (which shall be not more than 15 days and not less than 10 days before the payment date) for the payment of such defaulted interest to be fixed by the Trustee, notice whereof shall be given to the Holders of Notes of this series not less than 10 days prior to such special record date, or may be paid at any time in any other lawful manner, all as more fully provided in such Indenture. If any Interest Payment Date, Redemption Date or the Maturity Date falls on a day that is not a Business Day, the required payment shall be made on the next Business Day as if it were made on the date such payment was due and no interest shall accrue on the amount so payable for the period from and after such Interest Payment Date, Redemption Date or the Maturity Date, as the case may be, to such next Business Day. Payments of principal, premium, if any, and interest hereunder shall be made in such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts and shall be made immediately available to the Holder (as defined below) hereof.
This Note is one of the duly authorized series of Debt Securities of the Company, designated as the Company’s “2.600% Notes due 2031” (the “Notes”), initially limited to an aggregate principal amount of $800,000,000, all issued or to be issued under and pursuant to an Indenture dated as of June 27, 1995 (the “Original Indenture”), as supplemented by the Nineteenth Supplemental Indenture dated as of June 2, 2021 (the “Nineteenth Supplemental Indenture” and, together with the Original Indenture, the “Indenture”), duly executed and delivered by the Company and Cox Enterprises, Inc., a Delaware corporation, as guarantor (the “Guarantor”), to The Bank of New York Mellon Trust Company, N.A, as trustee (hereinafter referred to as the “Trustee”), to which Indenture and all indentures supplemental thereto reference is hereby made for a description of the rights, limitation of rights, obligations, duties and immunities thereunder of the Trustee, the Company, the Guarantor and the Holders (the words “Holders” or “Holder” meaning the registered holders or registered holder of the Notes).
The Notes and the obligations of the Company thereunder and under the Indenture shall be fully and unconditionally guaranteed on a senior unsecured basis by the Guarantor (the “Guarantee”). The Guarantee will be automatically and unconditionally released and discharged upon the occurrence of certain events without any action required on the part of the Trustee or any Holder in accordance with the terms of the Nineteenth Supplemental Indenture.
Prior to the Par Call Date, this Note will be redeemable at the option of the Company at any time, in whole or in part, at a Redemption Price equal to the greater of (i) 100% of the principal amount of this Note to be redeemed and (ii) the sum, as determined by the Quotation Agent, of the present values of the principal amount of this Note to be redeemed and the remaining scheduled payments of interest on the principal amount of this Note to be redeemed (assuming that this Note matured on the Par Call Date), exclusive of interest accrued to the Redemption Date, in each case, discounted from their respective scheduled payment dates to the Redemption Date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as defined below) plus 15 basis points, plus, in each case, accrued and unpaid interest thereon to, but not including, the Redemption Date. On or after the Par Call Date, this Note will be redeemable at the option of the Company, in whole at any time or in part from time to time, at a Redemption Price equal to 100% of the principal amount of this Note being redeemed, plus accrued and unpaid interest thereon to, but not including, the Redemption Date.
“Comparable Treasury Issue” means, with respect to this Note subject to redemption, the United States Treasury security selected by the Quotation Agent as having an actual or interpolated maturity comparable to the remaining life of this Note to be redeemed (assuming that this Note matured on the Par Call Date) that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity with the remaining life of this Note to be redeemed (assuming, for this purpose, that this Note matured on the Par Call Date).
“Comparable Treasury Price” means, with respect to any Redemption Date, the average of five Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and lowest of such Reference Treasury Dealer Quotations, or, if the Quotation Agent obtains fewer than five such Reference Treasury Dealer Quotations, the average of all such quotations.
“Par Call Date” means March 15, 2031.
“Quotation Agent” means the Reference Treasury Dealer appointed by the Company.
“Reference Treasury Dealer” means, with respect to any Redemption Date, (i) J.P. Morgan Securities LLC, RBC Capital Markets, LLC and Wells Fargo Securities, LLC and each of their respective successors and (ii) two other nationally recognized investment banking firms (or their respective affiliates) that the Company selects in connection with such Redemption Date, and each of their respective successors; provided, however, that if any of the foregoing shall cease to be a U.S. government securities dealer in the United States (a “Primary Treasury Dealer”), the Company will substitute another Primary Treasury Dealer.
“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and any Redemption Date, the average, as determined by the Quotation Agent, of the bid and asked prices for the Comparable Treasury Issue, expressed in each case as a percentage of its principal amount, quoted in writing to the Quotation Agent by such Reference Treasury Dealer at 3:30 p.m., New York City time, on the third Business Day preceding such Redemption Date.
“Treasury Rate” means, with respect to any Redemption Date, the rate per annum equal to the semi-annual or equivalent yield to maturity or interpolated (on a day-count basis) of the Comparable Treasury Issue, calculated on the third Business Day preceding such Redemption Date using a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such Redemption Date.
If money sufficient to pay the Redemption Price and accrued and unpaid interest on the principal amount of this Note to be redeemed on the Redemption Date is deposited with the Trustee or Paying Agent on or before the Redemption Date and certain other conditions specified in the Indenture are satisfied, then on or after such date, interest will cease to accrue on the principal amount of this Note called for redemption.
Notice of any redemption will be delivered at least 15 days but not more than 60 days before the Redemption Date to the Holder hereof by first-class mail or delivered electronically if held by DTC, to the address of such Holder appearing in the security register or otherwise in accordance with the procedures of DTC. Any notice of redemption may, at the Company’s discretion, be subject to the satisfaction of one or more conditions precedent, and if such notice of redemption is conditioned upon the occurrence of one or more conditions precedent, such notice shall state the nature of such conditions precedent.
Except as provided above, this Note is not redeemable by the Company prior to maturity.
This Note is not subject to any sinking fund.
Upon the occurrence of a Change of Control Repurchase Event, unless the Company has redeemed this Note or the Company has defeased this Security or satisfied and discharged this Note, the Holder of this Note shall have the right to require that the Company purchase all or a portion (such principal amount to be equal to $2,000 or integral multiples of $1,000 in excess thereof), of this Note at a purchase price in cash in an amount equal to 101% of the principal amount thereof, plus accrued but unpaid interest, if any, to, but not including, the date of purchase. Within 30 days following any Change of Control Repurchase Event, the Company shall deliver a notice to each Holder, in accordance with Section 40l(b) of the Nineteenth Supplemental Indenture, with a copy to the Trustee, which notice shall govern the terms of the Change of Control Offer. Notice of any redemption pursuant to the Change of Control Offer will be mailed or delivered electronically at least 15 days but not more than 60 days before the Redemption Date to the Holder hereof in accordance with the Nineteenth Supplemental Indenture.
In case an Event of Default shall occur and be continuing, the principal hereof may be declared, and upon such declaration shall become, due and payable, in the manner, with the effect and subject to the conditions provided in the Indenture.
Subject to certain exceptions set forth in the Indenture, (i) the Indenture may be amended with respect to the Notes with the consent of the Holders of at least a majority in principal amount outstanding of the Notes and (ii) any default or noncompliance with any provisions applicable to the Notes may be waived with the consent of the Holders of a majority in principal amount outstanding of the Notes. Subject to certain exceptions set forth in the Indenture, without the consent of any Holder, the Company and the Trustee may amend the Indenture or the Notes to, among other things, cure any ambiguity, defect or inconsistency, or to provide for the assumption by a successor person of the obligations of the Company under the Indenture, or to add additional covenants or surrender any right or power conferred on the Company, or to establish the form or terms of the Notes of any series, or to appoint a successor Trustee or provide for administration of the trust by more than one Trustee, or to add to, delete from or revise the conditions, limitations, and restrictions on the authorized amount, terms or purposes of issue, authentication and delivery of the Notes or to add any additional event of default, or to modify the provisions of the Indenture as shall be necessary to facilitate the defeasance and discharge of the Notes as shall not adversely affect any Holders, or to secure the Notes, or to make provisions with respect to exchange rights of Holders, or to make any change that does not adversely affect the rights of any Holder.
Subject to certain conditions, the Company at any time may terminate some or all of its obligations and the obligations of the Guarantor under the Notes and the Indenture if the Company deposits with the Trustee money or U.S. Government Obligations for the payment of principal, premium, if any, and interest on the Notes to the Maturity Date.
If money for the payment of principal or interest remains unclaimed for two years, the Trustee or Paying Agent shall pay the money back to the Company at its request unless an abandoned property law designates another Person. After any such payment, Holders entitled to the money must look only to the Company and not to the Trustee for payment.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and premium, if any, and interest on this Note at the place, at the respective times, at the rate, and in the coin or currency herein prescribed.
No director, officer, employee or stockholder, as such, of the Company or the Guarantor shall have any liability for any obligations of the Company under this Note or the Indenture or the obligations of the Guarantor under the Indenture, as applicable, or for any claim based on, in respect of or by reason of such obligations or their creation. Each Holder, by accepting this Note, waives and releases all such liability. The waiver and release are part of the consideration for the issue of this Note.
This Note and the Indenture shall be governed by and construed in accordance with the law of the State of New York applicable to agreements made or instruments entered into and, in each case, performed in said state.
Ownership of this Note shall be proved by the register for the Notes kept by the Registrar. The Company, the Trustee and any agent of the Company may treat the Person in whose name a Note is registered as the absolute owner thereof for all purposes.
Pursuant to a recommendation promulgated by the Committee on Uniform Securities Identification Procedures (“CUSIP”), the Company has caused a CUSIP number to be printed on this Note and has directed the Trustee to use the CUSIP number as a convenience to Holders. No representation is made as to the correctness of such numbers and reliance may be placed only on the other identification numbers printed on this Note.
Terms used herein without definition that are defined in the Indenture shall have the meanings assigned to them in the Indenture.
Unless the Certificate of Authentication hereon has been executed by the Trustee under the Indenture referred to herein by the manual, facsimile or electronic signature of one of its authorized officers, or on behalf of the Trustee by the manual, facsimile or electronic signature of an authorized officer of the Trustee’s authenticating agent, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed, manually or by facsimile.
Date:
| COX COMMUNICATIONS, INC. | ||
| By: | ||
| Name: | ||
| Title: | ||
| By: | ||
| Name: | ||
| Title: | ||
CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated therein referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
as Trustee
| By: | ||
| Authorized Signatory | ||
| Dated: |
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby sell(s) assign(s) and transfer(s) unto
Please insert social security number 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 attorney to transfer said Note of Cox Communications, Inc. on the books of Cox Communications, Inc. 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 this Note in every particular without alteration or enlargement or any change whatsoever. The Signature must be guaranteed by an eligible guarantor institution meeting the requirements of the Registrar, which requirements include memberships or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934.
EXHIBIT A-2(ii)
[FORM OF FACE OF SECURITY] [TRANSFER RESTRICTION LEGEND]
[THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS A NON-U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION WITHIN THE MEANING OF REGULATIONS UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH THE LAWS APPLICABLE TO SUCH PURCHASER IN THE JURISDICTION IN WHICH SUCH PURCHASE IS MADE AND (2) AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) THAT IS 40 DAYS AFTER THE LATEST OF THE ISSUE DATE HEREOF, THE ORIGINAL ISSUE DATE OF ANY ADDITIONAL NOTES (AS DEFINED IN THE INDENTURE GOVERNING THIS SECURITY) AND THE DATE ON WHICH THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) WAS FIRST OFFERED TO PERSONS OTHER THAN DISTRIBUTORS (AS DEFINED IN RULE 902 OF REGULATION S) IN RELIANCE ON REGULATION S, ONLY (A) TO THE COMPANY, THE GUARANTOR OR ANY SUBSIDIARY THEREOF, (B) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATIONS UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH THE LAWS1 APPLICABLE TO IT IN THE JURISDICTION IN WHICH SUCH PURCHASE IS MADE, (D) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY’S AND THE TRUSTEE’S, OR REGISTRAR’S, AS APPLICABLE, RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (C) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE FOREGOING CASES, A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE OR REGISTRAR. THIS LEGEND WILL BE REMOVED UPON THE WRITTEN REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE. BY ITS ACQUISITION HEREOF, THE HOLDER HEREOF REPRESENTS THAT IT IS NOT A U.S. PERSON NOR IS IT PURCHASING FOR THE ACCOUNT OF A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATIONS UNDER THE SECURITIES ACT.
THIS GLOBAL NOTE IS A TEMPORARY GLOBAL NOTE FOR PURPOSES OF REGULATIONS UNDER THE SECURITIES ACT. NEITHER THIS TEMPORARY GLOBAL NOTE NOR ANY INTEREST HEREIN MAY BE OFFERED, SOLD OR DELIVERED, EXCEPT AS PERMITTED UNDER THE INDENTURE REFERRED TO BELOW.]
[GLOBAL NOTES LEGEND]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON 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.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS, IN WHOLE BUT NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN ARTICLE TWO OF THE NINETEENTH SUPPLEMENTAL INDENTURE REFERRED TO ON THE REVERSE HEREOF.]
| No.R- | PRINCIPAL AMOUNT |
| CUSIP No. U22018 AZ5 | $ |
COX COMMUNICATIONS, INC.
3.600% Notes due 2051
COX COMMUNICATIONS, INC., a Delaware corporation (hereinafter called the “Company,” which term includes any successor corporation under the Indenture referred to below), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of [ ] ($ ) on June 15, 2051 (the “Maturity Date”), unless previously redeemed, and to pay interest thereon from June 2, 2021 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, payable semiannually on June 15 and December 15 of each year (each, an “Interest Payment Date”), commencing December 15, 2021 at the rate of 3.600% per annum, until the principal hereof is paid or duly made available for payment. Interest shall be computed on the basis of a 360-day year of twelve 30-day months. The interest so payable and punctually paid or duly provided for on any Interest Payment Date will, as provided in the Indenture, be paid to the Person in whose name this Note (or one or more predecessor securities) is registered at the close of business on the regular record date for such interest, which shall be June 1 or December 1 (whether or not a Business Day), as the case may be, immediately preceding such Interest Payment Date. Any such interest which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date shall forthwith cease to be payable to the registered Holder hereof on the relevant regular record date by virtue of having been such Holder, and may be paid to the Person in whose name this Note (or one or more predecessor securities) is registered at the close of business on a subsequent special record date (which shall be not more than 15 days and not less than 10 days before the payment date) for the payment of such defaulted interest to be fixed by the Trustee, notice whereof shall be given to the Holders of Notes of this series not less than 10 days prior to such special record date, or may be paid at any time in any other lawful manner, all as more fully provided in such Indenture. If any Interest Payment Date, Redemption Date or the Maturity Date falls on a day that is not a Business Day, the required payment shall be made on the next Business Day as if it were made on the date such payment was due and no interest shall accrue on the amount so payable for the period from and after such Interest Payment Date, Redemption Date or the Maturity Date, as the case may be, to such next Business Day. Payments of principal, premium, if any, and interest hereunder shall be made in such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts and shall be made immediately available to the Holder (as defined below) hereof.
This Note is one of the duly authorized series of Debt Securities of the Company, designated as the Company’s “3.600% Notes due 2051” (the “Notes”), initially limited to an aggregate principal amount of $700,000,000, all issued or to be issued under and pursuant to an Indenture dated as of June 27, 1995 (the “Original Indenture”), as supplemented by the Nineteenth Supplemental Indenture dated as of June 2, 2021 (the “Nineteenth Supplemental Indenture” and, together with the Original Indenture, the “Indenture”), duly executed and delivered by the Company and Cox Enterprises, Inc., a Delaware corporation, as guarantor (the “Guarantor”), to The Bank of New York Mellon Trust Company, N.A, as trustee (hereinafter referred to as the “Trustee”), to which Indenture and all indentures supplemental thereto reference is hereby made for a description of the rights, limitation of rights, obligations, duties and immunities thereunder of the Trustee, the Company, the Guarantor and the Holders (the words “Holders” or “Holder” meaning the registered holders or registered holder of the Notes).
The Notes and the obligations of the Company thereunder and under the Indenture shall be fully and unconditionally guaranteed on a senior unsecured basis by the Guarantor (the “Guarantee”). The Guarantee will be automatically and unconditionally released and discharged upon the occurrence of certain events without any action required on the part of the Trustee or any Holder in accordance with the terms of the Nineteenth Supplemental Indenture.
Prior to the Par Call Date, this Note will be redeemable at the option of the Company at any time, in whole or in part, at a Redemption Price equal to the greater of (i) 100% of the principal amount of this Note to be redeemed and (ii) the sum, as determined by the Quotation Agent, of the present values of the principal amount of this Note to be redeemed and the remaining scheduled payments of interest on the principal amount of this Note to be redeemed (assuming that this Note matured on the Par Call Date), exclusive of interest accrued to the Redemption Date, in each case, discounted from their respective scheduled payment dates to the Redemption Date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as defined below) plus 20 basis points, plus, in each case, accrued and unpaid interest thereon to, but not including, the Redemption Date. On or after the Par Call Date, this Note will be redeemable at the option of the Company, in whole at any time or in part from time to time, at a Redemption Price equal to 100% of the principal amount of this Note being redeemed, plus accrued and unpaid interest thereon to, but not including, the Redemption Date.
“Comparable Treasury Issue” means, with respect to this Note subject to redemption, the United States Treasury security selected by the Quotation Agent as having an actual or interpolated maturity comparable to the remaining life of this Note to be redeemed (assuming that this Note matured on the Par Call Date) that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity with the remaining life of this Note to be redeemed (assuming, for this purpose, that this Note matured on the Par Call Date).
“Comparable Treasury Price” means, with respect to any Redemption Date, the average of five Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and lowest of such Reference Treasury Dealer Quotations, or, if the Quotation Agent obtains fewer than five such Reference Treasury Dealer Quotations, the average of all such quotations.
“Par Call Date” means December 15, 2050.
“Quotation Agent” means the Reference Treasury Dealer appointed by the Company.
“Reference Treasury Dealer” means, -with respect to any Redemption Date, (i) J.P. Morgan Securities LLC, RBC Capital Markets, LLC and Wells Fargo Securities, LLC and each of their respective successors and (ii) two other nationally recognized investment banking firms (or their respective affiliates) that the Company selects in connection with such Redemption Date, and each of their respective successors; provided, however, that if any of the foregoing shall cease to be a U.S. government securities dealer in the United States (a “Primary Treasury Dealer”), the Company will substitute another Primary Treasury Dealer.
“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and any Redemption Date, the average, as determined by the Quotation Agent, of the bid and asked prices for the Comparable Treasury Issue, expressed in each case as a percentage of its principal amount, quoted in writing to the Quotation Agent by such Reference Treasury Dealer at 3:30 p.m., New York City time, on the third Business Day preceding such Redemption Date.
“Treasury Rate” means, with respect to any Redemption Date, the rate per annum equal to the semi-annual or equivalent yield to maturity or interpolated (on a day-count basis) of the Comparable Treasury Issue, calculated on the third Business Day preceding such Redemption Date using a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such Redemption Date.
If money sufficient to pay the Redemption Price and accrued and unpaid interest on the principal amount of this Note to be redeemed on the Redemption Date is deposited with the Trustee or Paying Agent on or before the Redemption Date and certain other conditions specified in the Indenture are satisfied, then on or after such date, interest will cease to accrue on the principal amount of this Note called for redemption.
Notice of any redemption will be delivered at least 15 days but not more than 60 days before the Redemption Date to the Holder hereof by first-class mail or delivered electronically if held by DTC, to the address of such Holder appearing in the security register or otherwise in accordance with the procedures of DTC. Any notice of redemption may, at the Company’s discretion, be subject to the satisfaction of one or more conditions precedent, and if such notice of redemption is conditioned upon the occurrence of one or more conditions precedent, such notice shall state the nature of such conditions precedent.
Except as provided above, this Note is not redeemable by the Company prior to maturity. This Note is not subject to any sinking fund.
Upon the occurrence of a Change of Control Repurchase Event, unless the Company has redeemed this Note or the Company has defeased this Security or satisfied and discharged this Note, the Holder of this Note shall have the right to require that the Company purchase all or a portion (such principal amount to be equal to $2,000 or integral multiples of $1,000 in excess thereof), of this Note at a purchase price in cash in an amount equal to 101% of the principal amount thereof, plus accrued but unpaid interest, if any, to, but not including, the date of purchase. Within 30 days following any Change of Control Repurchase Event, the Company shall deliver a notice to each Holder, in accordance with Section 40l(b) of the Nineteenth Supplemental Indenture, with a copy to the Trustee, which notice shall govern the terms of the Change of Control Offer. Notice of any redemption pursuant to the Change of Control Offer will be mailed or delivered electronically at least 15 days but not more than 60 days before the Redemption Date to the Holder hereof in accordance with the Nineteenth Supplemental Indenture.
In case an Event of Default shall occur and be continuing, the principal hereof may be declared, and upon such declaration shall become, due and payable, in the manner, with the effect and subject to the conditions provided in the Indenture.
Subject to certain exceptions set forth in the Indenture, (i) the Indenture may be amended with respect to the Notes with the consent of the Holders of at least a majority in principal amount outstanding of the Notes and (ii) any default or noncompliance with any provisions applicable to the Notes may be waived with the consent of the Holders of a majority in principal amount outstanding of the Notes. Subject to certain exceptions set forth in the Indenture, without the consent of any Holder, the Company and the Trustee may amend the Indenture or the Notes to, among other things, cure any ambiguity, defect or inconsistency, or to provide for the assumption by a successor person of the obligations of the Company under the Indenture, or to add additional covenants or surrender any right or power conferred on the Company, or to establish the form or terms of the Notes of any series, or to appoint a successor Trustee or provide for administration of the trust by more than one Trustee, or to add to, delete from or revise the conditions, limitations, and restrictions on the authorized amount, terms or purposes of issue, authentication and delivery of the Notes or to add any additional event of default, or to modify the provisions of the Indenture as shall be necessary to facilitate the defeasance and discharge of the Notes as shall not adversely affect any Holders, or to secure the Notes, or to make provisions with respect to exchange rights of Holders, or to make any change that does not adversely affect the rights of any Holder.
Subject to certain conditions, the Company at any time may terminate some or all of its obligations and the obligations of the Guarantor under the Notes and the Indenture if the Company deposits with the Trustee money or U.S. Government Obligations for the payment of principal, premium, if any, and interest on the Notes to the Maturity Date.
If money for the payment of principal or interest remains unclaimed for two years, the Trustee or Paying Agent shall pay the money back to the Company at its request unless an abandoned property law designates another Person. After any such payment, Holders entitled to the money must look only to the Company and not to the Trustee for payment.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and premium, if any, and interest on this Note at the place, at the respective times, at the rate, and in the coin or currency herein prescribed.
No director, officer, employee or stockholder, as such, of the Company or the Guarantor shall have any liability for any obligations of the Company under this Note or the Indenture or the obligations of the Guarantor under the Indenture, as applicable, or for any claim based on, in respect of or by reason of such obligations or their creation. Each Holder, by accepting this Note, waives and releases all such liability. The waiver and release are part of the consideration for the issue of this Note.
This Note and the Indenture shall be governed by and construed in accordance with the law of the State of New York applicable to agreements made or instruments entered into and, in each case, performed in said state.
Ownership of this Note shall be proved by the register for the Notes kept by the Registrar. The Company, the Trustee and any agent of the Company may treat the Person in whose name a Note is registered as the absolute owner thereof for all purposes.
Pursuant to a recommendation promulgated by the Committee on Uniform Securities Identification Procedures (“CUSIP”), the Company has caused a CUSIP number to be printed on this Note and has directed the Trustee to use the CUSIP number as a convenience to Holders. No representation is made as to the correctness of such numbers and reliance may be placed only on the other identification numbers printed on this Note.
Terms used herein without definition that are defined in the Indenture shall have the meanings assigned to them in the Indenture.
Unless the Certificate of Authentication hereon has been executed by the Trustee under the Indenture referred to herein by the manual, facsimile or electronic signature of one of its authorized officers, or on behalf of the Trustee by the manual, facsimile or electronic signature of an authorized officer of the Trustee’s authenticating agent, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed, manually or by facsimile.
Date:
| COX COMMUNICATIONS, INC. | ||
| By: | ||
| Name: | ||
| Title: | ||
| By: | ||
| Name: | ||
| Title: | ||
CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated therein referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
as Trustee
| By: | ||
| Authorized Signatory | ||
Dated:
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby sell(s) assign(s) and transfer(s) unto
Please insert social security number 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 attorney to transfer said Note of Cox Communications, Inc. on the books of Cox Communications, Inc. 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 this Note in every particular without alteration or enlargement or any change whatsoever. The Signature must be guaranteed by an “eligible guarantor institution meeting the requirements of the Registrar, which requirements include memberships or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934.
EXHIBIT B-1
Transfer Certificate
In connection with a transfer of any of the $ Principal amount of the % Notes due 20 (the “Notes”) of Cox Communications, Inc. (the “Company”) within the period prior to the expiration of the holding period applicable to the sales thereof under Rule 144 under the Securities Act of 1933, as amended (the “Securities Act”) (or any successor provision), the undersigned registered owner of this Note hereby certifies with respect to $ principal amount of the above-captioned securities presented or surrendered on the date hereof (the “Surrendered Notes”) for registration of transfer, or for exchange where the securities deliverable upon such exchange are to be registered in a name other than that of the undersigned registered owner (each such transaction being a “transfer”), that such transfer complies with the restrictive legend set forth on the face of the Surrendered Notes for the reason checked below:
| ¨ | The transfer of the Surrendered Notes is made to the Company, Cox Enterprises, Inc. or any Subsidiary thereof; | |
| ¨ | The transfer of the Surrendered Notes complies with Rule 144A under the Securities Act; | |
| ¨ | The transfer of the Surrendered Notes is pursuant to a registration statement which has been declared effective under the Securities Act; | |
| ¨ | The transfer of the Surrendered Notes is pursuant to an offer and sale to a non-U.S. person that occurs outside the United States within the meaning of Regulation S under the Securities Act and in accordance with the laws applicable to it in the jurisdiction in which such purchase is made; | |
| ¨ | The transfer of the Surrendered Notes is pursuant to another available exemption from the registration requirements of the Securities Act. |
and unless the box below is checked, the undersigned confirms that, to the undersigned’s knowledge, such Notes are not being transferred to an “affiliate” of the Company as defined in Rule 144 under the Securities Act (an “Affiliate”).
| ¨ | The transferee is an Affiliate of the Company. |
| DATE: | |||
| Signature(s) |
(If the registered owner
is a corporation, partnership
or fiduciary, the title of the Person signing on behalf
of such registered owner must be stated.)
EXHIBIT B-2
Form of Letter to be Delivered by Accredited Investors
Cox Communications, Inc.
6205-B Peachtree Dunwoody Road, NE
Atlanta, Georgia 30328
Attention: Treasurer
The Bank of New York Mellon Trust Company, N.A., as Registrar
500 Ross Street, 12th Floor
Pittsburgh, PA 15262
Attention: Corporate Trust Office
Dear Sirs:
We are delivering this letter in connection with the proposed transfer of $ principal amount of the % Notes due 20 (the “Notes”) of Cox Communications, Inc. (the “Company”).
We hereby confirm that:
| (i) | we are an “accredited investor” within the meaning of Rule 50l(a)(l), (2), (3) or (7) of Regulation D under the Securities Act of 1933, as amended (the “Securities Act”), or an entity in which all of the equity owners are accredited investors within the meaning of Rule 50l(a)(l), (2), (3) or (7) of Regulation D under the Securities Act (an “Institutional Accredited Investor”); | |
| (ii) | (A) the purchase of Notes by us is for our own account or for the account of one or more other Institutional Accredited Investors or as fiduciary for the account of one or more trusts, each of which is an “accredited investor” within the meaning of Rule 50l(a)(7) under the Securities Act and for each of which we exercise sole investment discretion or (B) we are a “bank,” within the meaning of Section 3(a)(2) of the Securities Act, or a “savings and loan association” or other institution described in Section 3(a)(5)(A) of the Securities Act that is acquiring Notes as fiduciary for the account of one or more institutions for which we exercise sole investment discretion; | |
| (iii) | we will acquire Notes having a minimum principal amount of not less than $100,000 for our own account or for any separate account for which we are acting; | |
| (iv) | we have such knowledge and experience in financial and business matters that we are capable of evaluating the merits and risks of purchasing Notes; and | |
| (v) | we are not acquiring Notes with a view to distribution thereof or with any present intention of offering or selling Notes, except as permitted below; provided that the disposition of our property and property of any accounts for which we are acting as fiduciary shall remain at all times within our control. | |
We understand that the Notes were originally offered and sold in a transaction not involving any public offering within the United States within the meaning of the Securities Act and that the Notes have not been registered under the Securities Act, and we agree, on our own behalf and on behalf of each account for which we acquire any Notes, that we will offer, sell or otherwise transfer such Notes, or any beneficial interest therein, prior to the date (the “Resale Restriction Termination Date”) that is (a) one year after the latest of (x) the original issue date of the Notes, (y) the original issue date of any Additional Notes (as defined in the indenture governing the Notes) and (z) the last date on which the Issuer or any of its Affiliates were the owner of such Notes (or any predecessor thereof), and (b) such later date, if any, as may be required by applicable laws only:
| (1) | to the Company or any Subsidiary thereof, or | |
| (2) | for as long as the Notes are eligible for resale pursuant to Rule 144A, to a person we reasonably believe is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) that purchases for its own account or for the account of a qualified institutional buyer to which notice is given that the transfer is being made in reliance on Rule 144A, or | |
| (3) | pursuant to offers and sales to non-U.S. persons that occur outside the United States within the meaning of Regulation S under the Securities Act and in accordance with the laws applicable to us in the jurisdiction in which such purchase is made, or | |
| (4) | pursuant to a registration statement which has been declared effective under the Securities Act, or | |
| (5) | pursuant to another available exemption from the registration requirements of the Securities Act. |
We acknowledge that the Company, others and you will rely upon our confirmations, acknowledgments and agreements set forth herein, and we agree to notify you promptly in writing if any of our representations or warranties herein ceases to be accurate and complete.
THIS LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK.
| (Name of Purchaser) | ||
| By: | ||
| Name: | ||
| Title | ||
| Address: | ||
Exhibit 4.17
EXECUTION VERSION
COX COMMUNICATIONS, INC.,
as Issuer
COX ENTERPRISES, INC.,
as Guarantor
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
as Trustee
TWENTIETH SUPPLEMENTAL INDENTURE
Dated as of June 20, 2023
Supplement to Indenture
Dated as of June 27, 1995
Creating two series of Debt Securities designated
5.450% Notes due 2028
5.700% Notes due 2033
TWENTIETH SUPPLEMENTAL INDENTURE, dated as of the 20th day of June, 2023, among COX COMMUNICATIONS, INC., a corporation existing under the laws of the State of Delaware, having its principal executive office located at 6205-B Peachtree Dunwoody Road, NE, Atlanta, Georgia 30328 (the “Company”), COX ENTERPRISES, INC., a corporation existing under the laws of the State of Delaware, having its principal executive office located at 6205-A Peachtree Dunwoody Road, NE, Atlanta, Georgia 30328 (the “Guarantor”), and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., a national banking association, having a designated corporate trust office located at 500 Ross Street, 12th Floor, Pittsburgh, Pennsylvania 15262, as trustee (the “Trustee”);
WHEREAS, the Company has heretofore executed and delivered to the Trustee an Indenture, dated as of June 27, 1995 (the “Original Indenture” and, as amended by this Supplemental Indenture, the “Indenture”), providing for the issuance by the Company from time to time of its debentures, notes, bonds or other evidences of indebtedness (in the Original Indenture and herein called the “Debt Securities”), unlimited as to principal amount, to be issued in one or more series;
WHEREAS, the Company, in the exercise of the power and authority conferred upon and reserved to it under the provisions of the Original Indenture and pursuant to appropriate resolutions of the Company’s Board of Directors, and the Guarantor, pursuant to appropriate resolutions of the Guarantor’s Board of Directors, have duly determined to make, execute and deliver to the Trustee this Supplemental Indenture to the Original Indenture in order to establish the form and terms of, and to provide for the creation and issuance of, two new series of Debt Securities designated as the “5.450% Notes due 2028” in the initial aggregate principal amount of $500,000,000 (the “2028 Notes”) and the “5.700% Notes due 2033” in the initial aggregate principal amount of $500,000,000 (the “2033 Notes” and, together with the 2028 Notes, the “Notes”) and (ii) to establish the terms of, and to provide for the grant of, full and unconditional guarantees (the “Guarantees”) by the Guarantor of the Company’s obligations with respect to the Notes and the Company’s obligations under the Indenture in respect thereof;
WHEREAS, Section 9.01 of the Original Indenture provides, among other things, that the Company and the Trustee, at any time and from time to time, without the consent of any Holders, may enter into an indenture supplemental to the Original Indenture to establish the form or terms of Debt Securities of any series as permitted by Sections 2.01 and 2.03 of the Original Indenture and to add guarantees with respect to the Debt Securities of any series;
WHEREAS, all things necessary to make the Notes, when executed by the Company and authenticated and delivered by the Trustee and issued upon the terms and subject to the conditions hereinafter and in the Original Indenture set forth against payment therefor, the valid, binding and legal obligations of the Company and to make this Supplemental Indenture a valid, binding and legal agreement of the Company and the Guarantor, have been done;
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH that, in order to establish the form and terms of the series of Debt Securities designated as the “5.450% Notes due 2028” and the “5.700% Notes due 2033” and to provide for the Guarantees in respect thereof and for and in consideration of the premises and of the covenants contained in the Original Indenture and in this Supplemental Indenture and for other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of the Notes of each series, as follows:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101 Definitions. For all purposes of the Original Indenture and this Supplemental Indenture relating to each series of Debt Securities (consisting of the Notes) created hereby and the Guarantees in respect thereof, except as otherwise expressly provided or unless the context otherwise requires, the terms defined in this Article have the meanings assigned to them in this Article. Each capitalized term that is used in the Original Indenture and this Supplemental Indenture but not defined herein shall have the meaning specified in the Original Indenture.
“Additional Notes” has the meaning specified in Section 202 of this Supplemental Indenture.
“Agent Members” has the meaning specified in Section 209(e)(v) of this Supplemental Indenture.
“Applicable Procedures” means, with respect to any transfer or transaction involving a Global Note or beneficial interest therein, the rules and procedures of the Depositary for such Note, in each case to the extent applicable to such transaction and as in effect from time to time.
“Below Investment Grade Downgrade Event” means, with respect to either series of Notes, the rating on such Notes is lowered in respect of a Change of Control and such Notes are rated below an Investment Grade Rating by each of the Rating Agencies on any date from the first public announcement by the Company of any Change of Control (or pending Change of Control) and ending 60 days following consummation of such Change of Control (which period shall be extended until the ratings are announced if, during such 60-day period, the rating of such Notes is under publicly announced consideration for possible downgrade by each of the Rating Agencies); provided that a Below Investment Grade Downgrade Event otherwise arising by virtue of a particular reduction in rating shall not be deemed to have occurred in respect of a particular Change of Control (and thus shall not be deemed a Below Investment Grade Downgrade Event for purposes of the definition of Change of Control Repurchase Event hereunder) if the Rating Agencies making the reduction in rating to which this definition would otherwise apply do not announce or publicly confirm or inform the Company in writing at its request that the reduction was the result, in whole or in part, of any event or circumstance comprised of or arising as a result of, or in respect of, the applicable Change of Control (whether or not the applicable Change of Control shall have occurred at the time of the Below Investment Grade Downgrade Event). The Company shall request the Rating Agencies to make such confirmation in connection with any Change of Control and shall promptly certify to the Trustee as to whether or not such confirmation has been received or denied.
“Business Day” means any day other than a Saturday, a Sunday or a legal holiday or a day on which banking institutions or trust companies in The City of New York are authorized or obligated by law to close.
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“Capital Stock” of any Person means any and all shares, interests, participations, rights in or other equivalents (however designated) of such Person’s capital stock, other equity interests whether now outstanding or issued after the Issue Date, partnership interests (whether general or limited), limited liability company interests, any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person, including any preferred stock, and any rights (other than debt securities convertible into, or exchangeable for or valued by reference to, Capital Stock until and unless any such debt security is converted into Capital Stock), warrants or options exchangeable for or convertible into such Capital Stock.
“cash” means U.S. legal tender.
“Certificated Notes” means the Notes issued in certificated, registered form without interest coupons and not required to bear the Legend set forth in Section 207(a)(ii) of this Supplemental Indenture.
“Change of Control” means the occurrence of any of the following events:
(1) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act), other than one or more Permitted Holders, becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that a Person shall be deemed to have beneficial ownership of all shares that such Person has the right to acquire, whether such right is exercisable immediately or only after the passage of time), directly or indirectly, of more than 50% of the total outstanding Voting Stock of the Company;
(2) the Company sells, assigns, conveys, transfers, leases or otherwise disposes of (other than by way of merger or consolidation) all or substantially all of its and its Subsidiaries’ assets taken as a whole to any Person, other than any such transaction where:
| (A) | the transferee is a Person controlled, directly or indirectly, by one or more Permitted Holders; or |
| (B) | following such transaction, each transferee becomes an obligor in respect of the Notes and either (i) each transferee is or becomes a Subsidiary of the transferor of such assets or (ii) the holders of the Voting Stock of the Company immediately prior to such transaction own, directly or indirectly, not less than a majority of the Voting Stock of the transferee immediately after such transaction; |
(3) the Company consolidates with or merges with or into any Person or any Person consolidates with or merges into or with the Company, in any such event pursuant to a transaction in which the outstanding Voting Stock of the Company is converted into or exchanged for cash, securities or other property, other than any such transaction where:
| (A) | the surviving corporation is a Person controlled, directly or indirectly, by one or more Permitted Holders; or |
3
| (B) | (i) the outstanding Voting Stock of the Company is changed into or exchanged for Voting Stock of the surviving corporation (or any direct or indirect parent company of the surviving corporation) and (ii) the holders of the Voting Stock of the Company immediately prior to such transaction own, directly or indirectly, not less than a majority of the Voting Stock of the surviving corporation immediately after such transaction; or |
| (4) | the adoption of a plan relating to the liquidation or dissolution of the Company. |
Notwithstanding the foregoing, a transaction will not be deemed to involve a Change of Control if (i) Cox becomes a direct or indirect wholly owned subsidiary of a holding company and (ii) the direct or indirect holders of the Voting Stock of Cox immediately prior to such transaction own, directly or indirectly, at least a majority of the Voting Stock of such holding company.
“Change of Control Repurchase Event” means, with respect to either series of Notes, the occurrence of a Change of Control together with a Below Investment Grade Downgrade Event with respect to such series of Notes. Notwithstanding the foregoing, no Change of Control Repurchase Event will be deemed to have occurred in connection with any particular Change of Control unless and until such Change of Control has actually been consummated.
“Clearstream” means Clearstream Banking, S.A. (formerly Cedelbank).
“Corporate Trust Office” means 500 Ross Street, 12th Floor, Pittsburgh, Pennsylvania 15262 or such other address as the Trustee may designate from time to time by notice to the Holders and the Company, or the principal corporate trust office of any successor Trustee (or such other address as such successor Trustee may designate from time to time by notice to the Holders and the Company).
“Cox Descendants” means the lineal descendants of Governor James M. Cox.
“Cox Family Charities” means charitable organizations of which Cox Family Individuals constitute at least a majority of the trustees, members or directors thereof.
“Cox Family Individuals” means (a) the Cox Descendants and (b) the spouses and surviving spouses of Cox Descendants.
“Cox Family Members” means (a) Cox Family Individuals, (b) Cox Family Trusts, (c) Cox Family Charities or (d) corporations, partnerships, limited partnerships, limited liability companies or any other Person beneficially owned in whole or in part by one or more Cox Family Individuals or Cox Family Trusts or Cox Family Charities;provided that, with respect to clauses (b) and (d), in the case of a Cox Family Trust, a majority of the trustees are Cox Family Individuals, in the case of a general or limited partnership, Cox Family Individuals own, directly or indirectly, more than 50% of the interests or general partner interests, in the case of a limited liability company, Cox Family Individuals hold, directly or indirectly, more than 50% of the vote of the managers, and in the case of any other Person, one or more Cox Family Individuals is the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of more than 50% of the Voting Stock, measured by voting power rather than number of shares, of such Person.
4
“Cox Family Trusts” means trusts established by or for the benefit of any one or more Cox Family Individuals.
“Credit Agreement” means the Third Amended and Restated Credit Agreement dated as of November 10, 2010, and as amended and restated as of March 28, 2014, December 13, 2018 and November 4, 2021, and further amended as of March 1, 2023 (and as may be further amended, supplemented or otherwise modified from time to time), among the Company, the Guarantor, JPMorgan Chase Bank, N.A., as administrative agent, and the lenders from time to time party thereto.
“Debt Securities” has the meaning specified in the first recital hereof.
“Depositary” means, with respect to the Notes issuable in whole or in part in global form, DTC and any nominee thereof, until a successor shall have been appointed and become such pursuant to the applicable provisions of the Indenture, and thereafter “Depositary” shall mean or include such successor and any nominee thereof.
“Distribution Compliance Period” means the 40-day distribution compliance period as defined in Regulation S, or such later date, if any, as may be required by applicable laws.
“DTC” means The Depository Trust Company.
“Electronic Means” shall mean the following communications methods: e-mail, facsimile transmission, secure electronic transmission containing applicable authorization codes, passwords and/or authentication keys issued by the Trustee, or another method or system specified by the Trustee as available for use in connection with its services hereunder.
“Euroclear” means the Euroclear Bank SA/NV.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Fitch” means Fitch Ratings, Inc. or any successor to the rating agency business thereof.
“Global Note” means a Note issued in global form, bearing the legends set forth in Section 207(a)(ii) of this Supplemental Indenture, and deposited with or on behalf of the Depositary.
“Guarantee” or “Guarantees” has the meaning specified in the recitals hereof.
“Guarantor” has the meaning specified in the first paragraph hereof.
“Holder” and “Noteholder,” in the case of any Note, means the Person in whose name such Note is registered in the Debt Security Register.
“Institutional Accredited Investor” means an institutional “accredited investor” as defined in Rule 501(a)(l), (2), (3) and (7) under the Securities Act.
5
“Interest Payment Date,” in respect of any Note, has the meaning assigned to it in such Note.
“Investment Grade Rating” means (a) with respect to Moody’s, a rating equal to or higher than Baa3 (or the equivalent), and (b) with respect to S&P and Fitch, a rating equal to or higher than BBB- (or the equivalent) (or, in each case, if such Rating Agency ceases to rate the Notes for reasons outside of the Company’s control, the equivalent investment grade credit rating from any Rating Agency selected by the Company as a replacement Rating Agency).
“Issue Date” means June 20, 2023.
“Legend” means the Transfer Restriction Legend as defined in Section 207(c) of this Supplemental Indenture.
“Moody’s” means Moody’s Investors Service, Inc. or any successor to the rating agency business thereof.
“Notes” has the meaning specified in the recitals hereof.
“Permitted Holders” means (a) the Cox Family Members, (b) the Guarantor and its affiliates, including any successor Person to the Guarantor that owns, directly or indirectly, 100% of the Capital Stock of the Company and such successor Person’s affiliates, and (c) any “group” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act) of the foregoing with respect to which any such Persons exercise a majority of voting power.
“Purchase Agreement” means the Purchase Agreement, dated June 12, 2023, among the Company and J.P. Morgan Securities LLC, Citigroup Global Markets Inc., MUFG Securities Americas Inc. and Wells Fargo Securities, LLC, acting as representatives on behalf of the Initial Purchasers (as defined therein).
“Qualified Institutional Buyer” has the meaning specified in Rule 144A.
“Rating Agencies” means:
| (1) | S&P; |
| (2) | Moody’s; and |
| (3) | Fitch; |
provided, that if S&P, Moody’s or Fitch or all three shall not make a rating of the Notes of either series publicly available, a “nationally recognized statistical rating organization” within the meaning of Section 3(a)(62) of the Exchange Act, selected by the Company, which shall be substituted for S&P, Moody’s or Fitch or all three, as the case may be.
“Redemption Date”, with respect to any Note or portion thereof to be redeemed, means the date fixed for redemption in accordance with the terms of such Note and Article III of the Original Indenture.
6
“Redemption Price”, with respect to any Note or portion thereof to be redeemed, means the price at which it is to be redeemed as determined in accordance with the terms of the applicable Note and Article III of the Original Indenture.
“Regulation S” means Regulation S under the Securities Act.
“Regulation S Global Note” means a Regulation S Temporary Global Note or Regulation S Permanent Global Note, as applicable.
“Regulation S Permanent Global Note” means a permanent Global Note in the form of the Note attached hereto as Exhibits A-2(i) or A-2(ii), as applicable, and that is deposited with and registered in the name of the Depositary, issued in a denomination equal to the outstanding principal amount of the Regulation S Temporary Global Note upon expiration of the Distribution Compliance Period.
“Regulation S Temporary Global Note” means a temporary Global Note in the form of the Note attached hereto as Exhibit A-2(i) or A-2(ii), as applicable, and that is deposited with and registered in the name of the Depositary, representing Notes sold in offshore transactions in reliance on Regulation S.
“Resale Restriction Termination Date” means (1) in the case of U.S. Global Notes, the date that is one year after the latest of (a) the Issue Date, (b) the original issue date of any Additional Notes of such series and (c) the last date on which the Company or any of its Affiliates were the owner of such Notes (or any predecessor thereof) or, in the case of Regulation S Notes, the date that is 40 days after the latest of (a) the Issue Date, (b) the original issue date of any Additional Notes of such series and (c) the date on which such Notes (or any predecessor thereof) were first offered to persons other than distributors (as defined in Rule 902 of Regulation S) in reliance on Regulation S and (2) such later date, if any, as may be required by applicable laws.
“Restricted Note” means a Note required to bear the Transfer Restriction Legend pursuant to Section 207(c) of this Supplemental Indenture and set forth on the forms of Notes attached as Exhibits A-l(i), A-l(ii), A-2(i) or A-2(ii), as applicable, to this Supplemental Indenture.
“Rule 144A” means Rule 144A under the Securities Act (or any successor provision), as it may be amended from time to time.
“S&P” means S&P Global Ratings, a division of S&P Global, Inc., or any successor to the rating agency business thereof.
“Securities Act” means the Securities Act of 1933, as amended.
“Supplemental Indenture” means this Twentieth Supplemental Indenture.
“Termination Date” has the meaning set forth in Section 501(f) of this Supplemental Indenture.
“Transfer Restriction Legend” has the meaning specified in Section 207(c) of this Supplemental Indenture.
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“Trustee” has the meaning specified in the first paragraph hereof.
“U.S. Global Note” means a Global Note in the form of the Note attached hereto as Exhibits A-l(i) or A-l(ii), as applicable, to this Supplemental Indenture, and that is deposited with and registered in the name of the Depositary, representing Notes sold in reliance on Rule 144A.
“Voting Stock” of a Person means Capital Stock of such Person of the class or classes pursuant to which the holders thereof have the general voting power under ordinary circumstances to elect at least a majority of the board of directors, managers or trustees of such Person (irrespective of whether or not at the time Capital Stock of any other class or classes shall have or might have voting power by reason of the happening of any contingency).
SECTION 102 Section References. Each reference to a particular section set forth in this Supplemental Indenture shall, unless the context otherwise requires, refer to this Supplemental Indenture.
SECTION 103 Effect of Supplemental Indenture. Except as set forth below and except as expressly amended hereby, the Original Indenture shall continue in full force and effect in accordance with the provisions thereof, and the Original Indenture is in all respects hereby ratified and confirmed. This Supplemental Indenture and all its provisions shall be deemed a part of the Original Indenture in the manner and to the extent herein and therein provided. The Original Indenture and this Supplemental Indenture shall be read, taken and construed as one and the same instrument.
This Supplemental Indenture amends and supplements and, to the extent inconsistent therewith, replaces the provisions of the Original Indenture, to which provisions reference is hereby made. For the avoidance of doubt, the provisions of Section 206 hereof amend Section 3.03 of the Original Indenture as set forth in such Section 206; the provisions of Section 210 hereof amend Section 6.01 of the Original Indenture as set forth in such Section 210; the provisions of Section 211 hereof amend Section 7.06 of the Original Indenture as set forth in such Section 211; the provisions of Section 212 hereof amend Section 7.07 of the Original Indenture as set forth in such Section 212; the provisions of Section 213 hereof amend Section 7.08 of the Original Indenture as set forth in such Section 213; the provisions of Sections 214 and 215 hereof amend Section 9.01 of the Original Indenture as set forth in such Sections 214 and 215; the provisions of Article 3 hereof replace the provisions of Section 5.03 of the Original Indenture in their entirety; the provisions of Section 402 hereof replace the provisions of Section 4.08 of this Original Indenture in their entirety; the provisions of Section 403 hereof replace the provisions of Section 4.09 of the Original Indenture in their entirety; and the provisions of Article 6 hereof amend the provisions of Section 7.02 of the Original Indenture as set forth in such Article 6.
The amendments and supplements to, and replacements of the provisions of, the Original Indenture effected by this Supplemental Indenture shall be applicable only with respect to, and govern the terms of, the Debt Securities issued pursuant to this Supplemental Indenture and the Guarantees in respect thereof, and shall not apply to any other Debt Securities that have been or may be issued under the Original Indenture unless a supplemental indenture with respect to such other Debt Securities specifically incorporates such amendments, supplements and replacements.
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The provisions of Article XI of the Original Indenture shall apply to the Notes.
ARTICLE 2
THE NOTES
SECTION 201 Title of the Notes. The 2028 Notes and 2033 Notes shall be known and designated as the “5.450% Notes due 2028” and the “5.700% Notes due 2033” of the Company, respectively.
SECTION 202 Amount. The aggregate principal amount of Notes that may be authenticated and delivered under this Supplemental Indenture is initially limited to $500,000,000 for the 2028 Notes and $500,000,000 for the 2033 Notes, in each case, except for Notes authenticated and delivered upon registration of, transfer of, or exchange for, or in lieu of, other Notes pursuant to Section 2.07, 2.08, 2.09 or 9.04 of the Indenture, or upon repayment in part of any 2028 Note or 2033 Note pursuant to Article III of the Original Indenture. The Company may, from time to time, subject to compliance with any other applicable provisions of this Supplemental Indenture but without the consent of the Holders of any series of Notes, create and issue pursuant to this Supplemental Indenture an unlimited principal amount of additional Notes of such series (in excess of any amounts theretofore issued) having the same terms and conditions to those of the other outstanding Notes of such series (“Additional Notes”); provided that any such Additional Notes (i) may have a different issue date and issue price from other outstanding Notes of such series and (ii) may have a different amount of interest payable on the first Interest Payment Date after issuance than the amount payable on other outstanding Notes of such series; provided further, that any such any such Additional Notes are not fungible with the applicable Notes issued on the Issue Date for U.S. federal income tax purposes, such Additional Notes will be issued with a separate CUSIP number.
SECTION 203 Stated Maturity. The Stated Maturity of the 2028 Notes shall be September 15, 2028. The Stated Maturity of the 2033 Notes shall be June 15, 2033.
SECTION 204 Interest.
(a) The 2028 Notes shall bear cash interest at the rate of 5.450% per annum from June 20, 2023 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, payable semiannually in arrears on March 15 and September 15 of each year, beginning on September 15, 2023, to the Persons in whose names such Notes are registered at the close of business on the immediately preceding March 1 or September 1, as the case may be, whether or not a Business Day. Interest on the Notes will be computed on the basis of a 360-day year of twelve 30-day months.
(b) The 2033 Notes shall bear cash interest at the rate of 5.700% per annum from June 20, 2023 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, payable semiannually in arrears on June 15 and December 15 of each year, beginning on December 15, 2023, to the Persons in whose names such Notes are registered at the close of business on the immediately preceding June 1 or December 1, as the case may be, whether or not a Business Day. Interest on the Notes will be computed on the basis of a 360-day year of twelve 30-day months.
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SECTION 205 Payments.
(a) Payments of principal, premium, if any, and interest on the Notes will be made to the Depositary, or its nominee, as the case may be, as the registered owner and holder of the Global Notes representing the Notes. In the event that the Notes are issued in the form of Certificated Notes, payments of principal, premium, if any, and interest thereon will be at the office or agency of the Trustee in the City of New York designated for such purpose; provided that, with respect to definitive Certificated Notes only, payment of interest, other than interest payable at Stated Maturity or upon redemption, may be made at the option of the Company, by the Trustee to the address of the Person entitled as shown on the register for such Debt Securities.
(b) If any date of Stated Maturity, Redemption Date or Interest Payment Date falls on a day that is not a Business Day, the required payment shall be made on the next Business Day, and no interest shall accrue on the amount so payable for the period between such payment date and the next Business Day.
(c) Payments of principal, premium, if any, and interest on the Notes shall be made in cash or such other coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debt.
SECTION 206 Redemption. Each series of Notes shall be redeemable, in whole or in part, on one or more Redemption Dates at the applicable Redemption Price. If the Redemption Date is not an Interest Payment Date, the amount of the scheduled interest payment on the next succeeding Interest Payment Date will be reduced by the amount of interest accrued to the Redemption Date. In connection with any redemption, notice of the redemption will be delivered at least 10 days but not more than 60 days prior to the applicable Redemption Date to the Holders of the Notes of such series by first-class mail or delivered electronically if held by DTC, to the address of such Holder appearing in the security register or otherwise in accordance with the procedures of DTC. Without limiting the other provisions of Section 3.03 of the Original Indenture, any notice of redemption may, at the Company’s discretion, be subject to the satisfaction of one or more conditions precedent, and if such notice of redemption is conditioned upon the occurrence of one or more conditions precedent, such notice shall state the nature of such conditions precedent. At the Company’s request, the Trustee shall give the notice of redemption in the Company’s name and at the Company’s expense. In such event, the Company shall provide the Trustee with the information required by this Section and the Original Indenture relating to such redemption.
SECTION 207 Forms; Denominations. The Notes shall be Registered Securities. The Global Notes representing the Notes shall be in substantially the forms attached hereto as Exhibits A-l(i), A-l(ii), A-2(i) or A-2(ii), as applicable.
The Notes are being offered and sold by the Company pursuant to the Purchase Agreement.
(a) Global Notes. (i) Notes offered and sold in reliance on Rule 144A as provided in the Purchase Agreement shall be issued initially in the form of one or more U.S. Global Notes in definitive fully registered form without interest coupons, deposited on behalf of the subscribers for the Notes represented thereby with the Trustee, as custodian for the Depositary and registered in the name of DTC or a nominee thereof, duly executed by the Company and authenticated by the Trustee as provided in the Indenture. The aggregate principal amount of the U.S. Global Notes may from time to time be increased or decreased by adjustments made on the records of the Trustee and the Depositary as hereinafter provided.
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Notes offered and sold in offshore transactions in reliance on Regulation S as provided in the Purchase Agreement shall be issued initially in the form of one or more Regulation S Temporary Global Notes in definitive fully registered form without interest coupons, deposited on behalf of the subscribers for the Notes represented thereby with the Trustee, as custodian for the Depositary, for the accounts of Euroclear and Clearstream and registered in the name of DTC or a nominee thereof, duly executed by the Company and authenticated by the Trustee as hereinafter provided. The Distribution Compliance Period shall be terminated upon the receipt by the Trustee of a written certificate from the Depositary, if available, together with copies of certificates from Euroclear and Clearstream, if available, certifying that they have received certification of non-United States beneficial ownership of 100% of the aggregate principal amount of the Regulation S Temporary Global Note (except to the extent of any beneficial owners thereof who acquired an interest therein during the Distribution Compliance Period pursuant to another exemption from registration under the Securities Act and who shall take delivery of a beneficial ownership interest in a U.S. Global Note bearing a Legend, all as contemplated by Section 209(a)(iii) hereof).
Following the termination of the Distribution Compliance Period, beneficial interests in the Regulation S Temporary Global Note shall be exchanged for beneficial interests in the Regulation S Permanent Global Note pursuant to the Applicable Procedures. Simultaneously with the authentication of the Regulation S Permanent Global Note, the Trustee shall cancel the Regulation S Temporary Global Note. The aggregate principal amount of the Regulation S Temporary Global Note and the Regulation S Permanent Global Note may from time to time be increased or decreased by adjustments made on the records of the Trustee and the Depositary as hereinafter provided.
Each Global Note shall represent such of the outstanding Notes as shall be specified therein and each shall provide that it shall represent the aggregate principal amount of outstanding Notes from time to time endorsed thereon and the aggregate principal amount of outstanding Notes represented thereby may from time to time be reduced to reflect exchanges or redemptions. Any adjustment of the aggregate principal amount of a Global Note representing the Notes to reflect the amount of any decrease in the principal amount of outstanding Notes represented thereby shall be made by the Trustee in accordance with instructions given by the Holder thereof as required by Section 209 hereof and shall be made on the records of the Trustee and the Depositary.
(i) Book-Entry Provisions. This Section 207(a)(ii) shall apply only to Global Notes.
The Company shall execute and the Trustee shall, in accordance with this Section 207(a)(ii) and Section 2.02 of the Indenture, authenticate and deliver initially one or more Global Notes that (a) shall be registered in the name of the Depositary, (b) shall be delivered by the Trustee to the Depositary or pursuant to the Depositary’s instructions and (c) shall bear legends substantially to the following effect:
“UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON 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.
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“TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS, IN WHOLE BUT NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN ARTICLE TWO OF THE TWENTIETH SUPPLEMENTAL INDENTURE REFERRED TO ON THE REVERSE HEREOF.”
(b) Certificated Notes. Except as otherwise set forth in this Supplemental Indenture, owners of beneficial interests in Global Notes will not be entitled to receive physical delivery of Certificated Notes. Beneficial interests in a Global Note transferred in accordance with Section 209(a)(ii) to an Institutional Accredited Investor who is not a Qualified Institutional Buyer and beneficial interests in a Global Note transferred to the beneficial holders thereof pursuant to Section 209(e) will be issued in certificated, registered form without interest coupons.
(c) Restrictive Legends. Prior to the Resale Restriction Termination Date, all Global Notes and all Certificated Notes issued in exchange for a beneficial interest in a Global Note shall bear a legend (the “Transfer Restriction Legend”) in substantially the following form, unless such Notes have been sold pursuant to a registration statement that has been declared effective under the Securities Act:
“THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
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“THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS A NON-U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH THE LAWS APPLICABLE TO SUCH PURCHASER IN THE JURISDICTION IN WHICH SUCH PURCHASE IS MADE AND (2) AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) THAT IS, IN THE CASE OF U.S. GLOBAL NOTES: ONE YEAR AFTER THE LATEST OF THE ISSUE DATE HEREOF, THE ORIGINAL ISSUE DATE OF ANY ADDITIONAL NOTES AND THE LAST DATE ON WHICH THE COMPANY OR ANY OF ITS AFFILIATES WERE THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), OR IN THE CASE OF REGULATION S GLOBAL NOTES: 40 DAYS AFTER THE LATEST OF THE ISSUE DATE HEREOF, THE ORIGINAL ISSUE DATE OF ANY ADDITIONAL NOTES AND THE DATE ON WHICH THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) WAS FIRST OFFERED TO PERSONS OTHER THAN DISTRIBUTORS (AS DEFINED IN RULE 902 OF REGULATION S) IN RELIANCE ON REGULATION S, ONLY (A) TO THE COMPANY, THE GUARANTOR OR ANY SUBSIDIARY THEREOF, (B) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH THE LAWS APPLICABLE TO IT IN THE JURISDICTION IN WHICH SUCH PURCHASE IS MADE, (D) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY’S AND THE TRUSTEE’S, OR REGISTRAR’S, AS APPLICABLE, RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (C) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE FOREGOING CASES, A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE OR REGISTRAR. THIS LEGEND WILL BE REMOVED UPON THE WRITTEN REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE. IN THE CASE OF REGULATIONS GLOBAL NOTES: BY ITS ACQUISITION HEREOF, THE HOLDER HEREOF REPRESENTS THAT IT IS NOT A U.S. PERSON NOR IS IT PURCHASING FOR THE ACCOUNT OF A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT.
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“IN THE CASE OF REGULATION S TEMPORARY GLOBAL NOTES: THIS GLOBAL NOTE IS A TEMPORARY GLOBAL NOTE FOR PURPOSES OF REGULATION S UNDER THE SECURITIES ACT. NEITHER THIS TEMPORARY GLOBAL NOTE NOR ANY INTEREST HEREIN MAY BE OFFERED, SOLD OR DELIVERED, EXCEPT AS PERMITTED UNDER THE INDENTURE REFERRED TO BELOW.”
SECTION 208 Transfer and Exchange.
(a) Notwithstanding any provision to the contrary herein, so long as a Global Note remains Outstanding and is held by or on behalf of the Depositary, transfers of such Global Note, in whole or in part, shall be made only in accordance with Section 209 and this Section 208.
(b) Transfers of a Global Note shall be limited to transfers of such Global Note in whole, or in part, to nominees of the Depositary or to a successor of the Depositary or such successor’s nominee.
(c) If Notes are issued upon the transfer, exchange or replacement of Notes subject to restrictions on transfer and bearing a Legend, or if a request is made to remove the Legend on a Note, the Notes so issued shall bear the Legend, or the Legend shall not be removed, as the case may be, unless there is delivered to the Company and the Registrar such satisfactory evidence, which shall include an opinion of counsel, as may be reasonably required by the Company and the Registrar, that neither the Legend nor the restrictions on transfer set forth therein are required to ensure that transfers thereof comply with the provisions of Rule 144A, Rule 144 or Regulation S under the Securities Act, that such Notes are not “restricted” within the meaning of Rule 144 under the Securities Act or that any such exchange or replacement Notes have been issued in a registered transaction under the Securities Act. Upon (i) provision of such satisfactory evidence, or (ii) notification by the Company to the Trustee and the Registrar of the sale or exchange of such Notes pursuant to a registration statement that is effective at the time of such sale, the Trustee, at the written direction of the Company, shall authenticate and deliver a Note that does not bear the Legend. If the Legend is removed from the face of a Note and the Note is subsequently held by an Affiliate of the Company, the Legend shall be reinstated.
The Trustee and the Registrar shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Supplemental Indenture or under applicable law with respect to any transfer of any interest in any Note (including transfers between or among the Depositary’s participants or beneficial owners of interest in any Global Note) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Supplemental Indenture and to examine the same to determine substantial compliance as to form with the express requirements hereof.
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SECTION 209 Global Notes.
(a) Notwithstanding any other provisions of this Supplemental Indenture or the Notes, (A) transfers of a Global Note, in whole or in part, shall be made only in accordance with Section 2.07 of the Indenture and Sections 208 and 209(a)(i) below, (B) transfer of a beneficial interest in a Global Note for a Certificated Note shall comply with Section 2.07 of the Indenture and Section 209(a)(ii) below, (C) transfers of a beneficial interest in a Regulation S Global Note for a beneficial interest in a U.S. Global Note shall comply with Section 2.07 of the Indenture and Section 209(a)(iii) below, and (D) transfers of a Certificated Note shall comply with Section 2.07 of the Indenture and Sections 209(a)(iv) and (v) below.
(i) Transfer of Global Note. A Global Note may not be transferred, in whole or in part, to any Person other than the Depositary or a nominee thereof, and no such transfer to any such other Person may be registered; provided that this clause (i) shall not prohibit any transfer of a Note that is issued in exchange for a Global Note but is not itself a Global Note. No transfer of a Note to any Person shall be effective under the Indenture or the Notes unless and until such Note has been registered in the name of such Person. Nothing in this Section 209(a)(i) shall prohibit or render ineffective any transfer of a beneficial interest in a Global Note effected in accordance with the other provisions of this Section 209(a).
(ii) Restrictions on Transfer of a Beneficial Interest in a Global Note for a Certificated Note. A beneficial interest in a Global Note may not be exchanged for a Certificated Note except upon satisfaction of the requirements set forth below. Upon receipt by the Trustee of a request for transfer of a beneficial interest in a Global Note in accordance with Applicable Procedures for a Certificated Note in the form satisfactory to the Trustee, together with:
(a) so long as the Notes are Restricted Notes, certification, in the form set forth in Exhibit B-1 attached hereto, and, if requested by the Company or the Registrar, certification in the form set forth in Exhibit B-2 attached hereto, that such beneficial interest in the Global Note is being transferred to an Institutional Accredited Investor;
(b) written instructions to the Trustee to make, or direct the Registrar to make, an adjustment on its books and records with respect to such Global Note to reflect a decrease in the aggregate principal amount of the Notes represented by the Global Note, such instructions to contain information regarding the Depositary account to be credited with such decrease; and
(c) if the Company or Registrar so requests, an opinion of counsel or other evidence reasonably satisfactory to them as to compliance with the restrictions set forth in the applicable Legend,
then the Trustee shall cause, or direct the Registrar to cause, in accordance with the standing instructions and procedures existing between the Depositary and the Registrar, the aggregate principal amount of Notes represented by the Global Note to be decreased by the aggregate principal amount of the Certificated Note to be issued, shall issue such Certificated Note and shall debit or cause to be debited to the account of the Person specified in such instructions a beneficial interest in the Global Note equal to the principal amount of the Certificated Note so issued.
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(iii) Restrictions on Transfer of Beneficial Interest in a Regulation S Global Note for a Beneficial Interest in a U.S. Global Note.
(a) On or prior to the expiration of the Distribution Compliance Period, a beneficial interest in a Regulation S Global Note may be transferred to a Person who takes delivery in the form of an interest in the corresponding U.S. Global Note only upon receipt by the Trustee of a written certification from the transferor to the effect that such transfer is being made (i)(a) to a Person whom the transferor reasonably believes is a Qualified Institutional Buyer in a transaction meeting the requirements of Rule 144A or (b) pursuant to another exemption from the registration requirements under the Securities Act which is accompanied by an Opinion of Counsel regarding the availability of such exemption and (ii) in accordance with all applicable securities laws of any state of the United States or any other jurisdiction.
(b) Beneficial interests in the U.S. Global Note may be transferred to a Person who takes delivery in the form of an interest in the Regulation S Global Note, whether before or after the expiration of the Distribution Compliance Period, only if the transferor first delivers to the Trustee a written certificate to the effect that such transfer is being made in accordance with Rule 904 of Regulation S or Rule 144 (if available).
(iv) Transfer and Exchange of Certificated Notes. When Certificated Notes are presented to the Registrar with a request:
| (x) | to register the transfer of such Certificated Notes; or |
(y) to exchange such Certificated Notes for an equal principal amount of Certificated Notes of other authorized denominations, the Registrar shall register the transfer or make the exchange as requested if its reasonable requirements for such transaction are met; provided, however, that the Certificated Notes surrendered for transfer or exchange:
(a) shall be duly endorsed or accompanied by a written instrument of transfer in form reasonably satisfactory to the Company and the Registrar, duly executed by the Holder thereof or his attorney duly authorized in writing; and
(b) so long as such Notes are Restricted Notes, such Notes are being transferred or exchanged pursuant to clause (A), (B) or (C) below, and are accompanied by the following additional information and documents, as applicable:
| (A) | if such Certificated Notes are being delivered to the Registrar by a Holder for registration in the name of such Holder, without transfer, a certification from such Holder to that effect; or |
| (B) | if such Certificated Notes are being transferred to the Company, a certification to that effect; or |
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| (C) | if such Certificated Notes are being transferred pursuant to an exemption from registration, (i) a certification to that effect (in the form set forth in Exhibit B-1 and B-2, if applicable) and (ii) if the Company or Registrar so requests, an opinion of counsel or other evidence reasonably satisfactory to them as to the compliance with the restrictions set forth in the Transfer Restriction Legend. |
(v) Restrictions on Transfer of a Certificated Note for a Beneficial Interest in a Global Note. A Certificated Note may not be exchanged for a beneficial interest in a Global Note except upon satisfaction of the requirements set forth below.
Upon receipt by the Trustee of a Certificated Note, duly endorsed or accompanied by appropriate instruments of transfer, in form satisfactory to the Trustee, together with:
(x) so long as the Notes are Restricted Notes, certification, in the form set forth in Exhibit B-1, that such Certificated Note is being transferred to a Qualified Institutional Buyer in accordance with Rule 144A; and
(y) written instructions directing the Trustee to make, or to direct the Registrar to make, an adjustment on its books and records with respect to such Global Note to reflect an increase in the aggregate principal amount of the Notes represented by the Global Note, such instructions to contain information regarding the Depositary account to be credited with such increase,
then the Trustee shall cancel such Certificated Note and cause, or direct the Registrar to cause, in accordance with the standing instructions and procedures existing between the Depositary and the Registrar, the aggregate principal amount of Notes represented by the Global Note to be increased by the aggregate principal amount of the Certificated Note to be exchanged, and shall credit or cause to be credited to the account of the Person specified in such instructions a beneficial interest in the Global Note equal to the principal amount of the Certificated Note so cancelled. If no Global Notes are then Outstanding, the Company shall issue and the Trustee shall authenticate, upon receipt of a Company Order, a new Global Note in the appropriate principal amount.
(b) Subject to the succeeding paragraph, every Note shall be subject to the restrictions on transfer provided in the applicable Legend including the delivery of an opinion of counsel, if so provided. Whenever any Restricted Note is presented or surrendered for registration of transfer or for exchange for a Note registered in a name other than that of the Holder, such Note must be accompanied by a certificate in substantially the form set forth in Exhibit B-1, dated the date of such surrender and signed by the Holder of such Note, as to compliance with such restrictions on transfer. The Registrar shall not be required to accept for such registration of transfer or exchange any Note not so accompanied by a properly completed certificate.
(c) The restrictions imposed by the Transfer Restriction Legend upon the transferability of any Restricted Note shall cease and terminate when such Note has been sold or exchanged pursuant to an effective registration statement under the Securities Act or may be transferred in compliance with Rule 144 under the Securities Act (or any successor provision thereto). Any Note as to which such restrictions on transfer shall have expired in accordance with their terms or shall have terminated may, upon a surrender of such Note for exchange to the Registrar in accordance with the provisions of this Section 209 (accompanied, in the event that such restrictions on transfer have terminated by reason of a transfer in compliance with Rule 144 or any successor provision, by an opinion of counsel having substantial experience in practice under the Securities Act and otherwise reasonably acceptable to the Company, addressed to the Company, the Trustee and the Registrar and in form acceptable to the Company, to the effect that the transfer of such Note has been made in compliance with Rule 144 or such successor provision), be exchanged for a new Note, of like tenor and aggregate principal amount, which shall not bear the Transfer Restriction Legend. The Company shall inform the Trustee of the effective date of any registration statement registering the Notes under the Securities Act. The Trustee shall not be liable for any action taken or omitted to be taken by it in good faith in accordance with the aforementioned opinion of counsel.
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(d) As used in the preceding two paragraphs of this Section 209, the term “transfer” encompasses any sale, pledge, transfer, hypothecation or other disposition of any Note.
(e) The provisions of clauses (i), (ii), (iii), (iv), and (v) below shall apply only to Global Notes:
(i) Notwithstanding any other provisions of the Indenture or the Notes, except as provided in Section 209(a)(ii), a Global Note shall not be exchanged in whole or in part for a Note registered in the name of any Person other than the Depositary or one or more nominees thereof, provided that a Global Note may be exchanged for Certificated Notes registered in the names of any Person designated by the Depositary in the event that (A) the Depositary has notified the Company that it is unwilling or unable to continue as depositary for such Global Note or the Depositary has ceased to be a “clearing agency” registered under the Exchange Act, and a successor Depositary is not appointed by the Company within 90 days or (B) an Event of Default has occurred and is continuing with respect to the Notes. Any Global Note exchanged pursuant to clause (A) above shall be so exchanged in whole and not in part, and any Global Note exchanged pursuant to clause (B) above may be exchanged in whole or from time to time in part as directed by the Depositary. Prior to the issuance of Certificated Notes in exchange for any beneficial interests in a Regulation S Global Note, the holder of such beneficial interests shall, as a condition to such exchange, certify in a form satisfactory to the Company that such holder is a non-U.S. person (as that term is defined in Regulation S under the Securities Act) or a U.S. person who purchased such beneficial interest in a transaction that did not require registration under the Securities Act. In the event that Certificated Notes are issued in respect of beneficial interests in a Regulation S Global Note at any time prior to the end of the Distribution Compliance Period (other than in a transaction subject to Rule 144A), the Company shall as promptly as practicable, institute procedures, including appropriate certifications, reasonably designed to ensure that any transfer of such Certificated Notes prior to the end of the Distribution Compliance Period is made only in accordance with the provisions of Regulation S, pursuant to registration under the Securities Act or pursuant to an exemption from such registration.
(ii) Notes issued in exchange for a Global Note or any portion thereof shall be issued in definitive, fully registered form, without interest coupons, shall have an aggregate principal amount equal to that of such Global Note or portion thereof to be so exchanged, shall be registered in such names and be in such authorized denominations as the Depositary shall designate and shall bear the applicable Legend. Any Global Note to be exchanged in whole shall be surrendered by the Depositary to the Trustee, as Registrar. With regard to any Global Note to be exchanged in part, either such Global Note shall be so surrendered for exchange or, if the Trustee is acting as custodian for the Depositary or its nominee with respect to such Global Note, the principal amount thereof shall be reduced, by an amount equal to the portion thereof to be so exchanged, by means of an appropriate adjustment made on the records of the Trustee. Upon any such surrender or adjustment, the Trustee shall authenticate and deliver the Note issuable on such exchange to or upon the order of the Depositary or an authorized representative thereof.
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(iii) Subject to the provisions of clause (v) below, the registered Holder may grant proxies and otherwise authorize any Person, including Agent Members (as defined below) and Persons that may hold interests through Agent Members, to take any action which a Holder is entitled to take under the Indenture or the Notes.
(iv) In the event of the occurrence of any of the events specified in clause (i) above, the Company will promptly make available to the Trustee a reasonable supply of Certificated Notes.
(v) Neither any members of, or participants in, the Depositary (collectively, the “Agent Members”) nor any other Persons on whose behalf Agent Members may act shall have any rights under the Indenture with respect to any Global Note registered in the name of the Depositary or any nominee thereof, or under any such Global Note, and the Depositary or such nominee, as the case may be, may be treated by the Company, the Trustee and any agent of the Company or the Trustee as the absolute owner and holder of such Global Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee or any agent of the Company or the Trustee from giving effect to any written certification, proxy or other authorization furnished by the Depositary or such nominee, as the case may be, or impair, as between the Depositary, its Agent Members and any other Person on whose behalf an Agent Member may act, the operation of customary practices of such Persons governing the exercise of the rights of a Holder of any Note.
SECTION 210 Events of Default. For purposes of this Supplemental Indenture and the Notes issued hereunder, Section 6.01 of the Original Indenture is hereby amended by deleting the clause immediately following subsection (i) in the first sentence of such Section and inserting in its place the following:
then and in each and every case that an Event of Default described in clause (a), (b), (c), (d), (e), (f), (g) (with respect to Restricted Subsidiaries only), (h) (with respect to Restricted Subsidiaries only) or (i) with respect to Debt Securities of that series at the time Outstanding occurs and is continuing, unless the principal of and interest on all the Debt Securities of that series shall have already become due and payable, either the Trustee or the Holders of not less than 25% in aggregate principal amount of the Debt Securities of that series then Outstanding hereunder, by notice in writing to the Company (and to the Trustee if given by Holders), may declare the principal of (or, if the Debt Securities of that series are Original Issue Discount Debt Securities, such portion of the principal amount as may be specified in the terms of that series) and interest on all the Debt Securities of that series to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything in this Indenture or in the Debt Securities or Coupons appertaining thereto of that series contained to the contrary notwithstanding.
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SECTION 211 Compensation and Reimbursement. For purposes of this Supplemental Indenture and the Notes issued hereunder, Section 7.06 of the Original Indenture is hereby amended to be replaced with the following:
The Company covenants and agrees to pay in Dollars to the Trustee such compensation as the Company and the Trustee shall from time to time agree in writing for all services rendered by it hereunder (which shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust), and, except as otherwise expressly provided herein, the Company will pay or reimburse in Dollars the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any of the provisions of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents, attorneys and counsel and of all Persons not regularly in its employ) except any such expense, disbursement or advances as may arise from its negligence or wilful misconduct. The Company also covenants to indemnify in Dollars each of the Trustee (which shall be deemed to include its officers, directors, employees, and agents) or any predecessor Trustee for, and to hold it harmless against, any loss, damage, claim, liability or expense, including the reasonable fees and expenses of counsel, and taxes (other than taxes based upon, measured by or determined by the income of the Trustee) incurred without negligence or wilful misconduct on the part of the Trustee, arising out of or in connection with the acceptance or administration of this trust or trusts hereunder, including the reasonable costs and expenses of defending itself against any claim of liability in connection with the exercise or performance of any of its powers or duties hereunder. The obligations of the Company under this Section 7.06 to compensate and indemnify the Trustee and to pay or reimburse the Trustee for expenses, disbursements and advances shall constitute additional indebtedness hereunder and shall survive the resignation or removal of the Trustee and/or the satisfaction and discharge of this Indenture. The Company and the Holders agree that such additional indebtedness shall be secured by a Lien prior to that of the Debt Securities and Coupons, if any, upon all property and funds held or collected by the Trustee, as such, except funds held in trust for the payment of principal of, and premium, if any, or interest on, particular Debt Securities and Coupons.
SECTION 212 Right of Trustee to Rely on an Officers’ Certificate Where No Other Evidence Specifically Prescribed. With respect to the Notes, Section 7.07 of the Original Indenture is hereby amended to be replaced with the following:
Except as otherwise provided in Section 7.01, whenever in the administration of the provisions of this Indenture the Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering or omitting any action hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) may, be deemed to be conclusively proved and established by an Officers’ Certificate delivered to the Trustee, and such certificate shall be full warrant to the Trustee for any action taken, suffered or omitted by it under the provisions of this Indenture.
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SECTION 213 Separate Trustee; Replacement of Trustee. With respect to the Notes, Section 7.08 of the Original Indenture is hereby amended to be replaced with the following:
The Company may, but need not, appoint a separate Trustee for any one or more series of Debt Securities. The Trustee may resign with respect to one or more or all series of Debt Securities at any time by giving 30 days’ notice to the Company. The Holders of a majority in principal amount of the Debt Securities of a particular series may remove the Trustee for such series and only such series by so notifying the Trustee and may appoint a successor Trustee with 30 days’ notice. The Company shall remove the Trustee with 30 days’ notice if:
| (1) | the Trustee fails to comply with Section 7.10; |
| (2) | the Trustee is adjudged bankrupt or insolvent; |
| (3) | a receiver or other public officer takes charge of the Trustee or its property; or |
| (4) | the Trustee otherwise becomes incapable of acting. |
If the Trustee resigns, is removed by the Company or by the Holders of a majority in principal amount of the Debt Securities of a particular series and such Holders do not reasonably promptly appoint a successor Trustee, or if a vacancy exists in the office of Trustee for any reason (the Trustee in such event being referred to herein as the retiring Trustee), the Company shall promptly appoint a successor Trustee. No resignation or removal of the Trustee and no appointment of a successor Trustee shall become effective until the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of this Section 7.08.
A successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Company. Thereupon the resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee under this Indenture. The successor Trustee shall send a notice of its succession to Holders of Debt Securities of each applicable series. The retiring Trustee shall promptly transfer all property held by it as Trustee to the successor Trustee, subject to the Lien provided for in Section 7.06.
If a successor Trustee does not take office within 30 days after the retiring Trustee resigns or is removed, the retiring Trustee or the Holders of 25% in principal amount of the Debt Securities of any applicable series may petition, at the expense of the Company, any court of competent jurisdiction for the appointment of a successor Trustee for the Debt Securities of such series.
If the Trustee fails to comply with Section 7.10, any Holder of Debt Securities of any applicable series may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee for the Debt Securities of such series.
Notwithstanding the replacement of the Trustee pursuant to this Section 7.08, the Company’s obligations under Section 7.06 shall continue for the benefit of the retiring Trustee.
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In the case of the appointment hereunder of a separate or successor trustee with respect to the Debt Securities of one or more series, the Company, any retiring Trustee and each successor or separate Trustee with respect to the Debt Securities of any applicable series shall execute and deliver an indenture supplemental hereto (1) which shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of any retiring Trustee with respect to the Debt Securities of any series as to which any such retiring Trustee is not retiring shall continue to be vested in such retiring Trustee and (2) that shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trustee hereunder by more than one trustee, it being understood that nothing herein or in such supplemental Indenture shall constitute such Trustees co-trustees of the same trust and that each such separate, retiring or successor Trustee shall be Trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee.
SECTION 214 With respect to the Notes, Section 9.0l (f) of the Original Indenture is hereby deleted in its entirety and replaced with “[Reserved]” in lieu thereof.
SECTION 215 With respect to the Notes, the last paragraph of Section 9.01 of the Original Indenture is hereby deleted in its entirety and replaced with the following:
After an amendment under the Indenture becomes effective with respect to the Notes of a particular series, the Company is required to deliver to Holders of the Notes of such series, by first-class mail or delivered electronically if held by DTC, to the address of such Holder appearing in the security register or otherwise in accordance with the procedures of DTC, a notice briefly describing such amendment. However, the Company’s failure to give such notice to all Holders of the Notes of such series, or any defect in such notice, will not impair or affect the validity of the amendment.
ARTICLE 3
REPORTS BY THE COMPANY
So long as any of the Debt Securities are “restricted securities” within the meaning of Rule 144(a)(3) under the Securities Act, the Company will, during any period in which it is not subject to Sections 13 or 15(d) of the Exchange Act or it is not exempt from such reporting requirements pursuant to and in compliance with Rule 12g3-2(b) under the Exchange Act, provide to each Holder of Notes and to each prospective purchaser (as designated by such Holder) of Notes, upon the request of such Holder or prospective purchaser, any information required to be provided by Rule 144A(d)(4) under the Securities Act.
ARTICLE 4
ADDITIONAL COVENANTS
SECTION 401 Purchase of Notes Upon a Change of Control Repurchase Event.
(a) If a Change of Control Repurchase Event occurs with respect to either series of Notes, each Holder of the Notes of such series will have the right to require that the Company purchase all or any part (in denominations of $2,000 and integral multiples of $1,000 in excess thereof) of such Holder’s Notes of such series pursuant to a Change of Control offer (a “Change of Control Offer”) on the terms set forth in this Supplemental Indenture, except that the Company shall not be obligated to repurchase the Notes of such series pursuant to this Section 401 in the event that the Company has exercised the right to redeem all of the Notes of such series as described in Section 206. In the Change of Control Offer with respect to either series of Notes, the Company will offer to purchase all of the Notes of such series at a purchase price (the “Change of Control Purchase Price”) in cash in an amount equal to 101% of the principal amount of such series of Notes, plus accrued but unpaid interest, if any, to, but not including, the date of purchase (the “Change of Control Purchase Date”) (subject to the rights of Holders of record on the relevant record date to receive interest due on the relevant Interest Payment Date if such Notes have not been repurchased prior to such record date).
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(b) Within 30 days after any Change of Control Repurchase Event with respect to either series of Notes or, at the Company’s option, prior to such Change of Control but after the public announcement of such pending Change of Control, the Company must notify the Trustee of such series of Notes and give written notice of the Change of Control Repurchase Event to the Trustee and each Holder of Notes of such series, by first-class mail or delivered electronically if held by DTC, to the address of such Holder appearing in the security register or otherwise in accordance with the procedures of DTC. The notice must state, among other things:
(1) that a Change of Control Repurchase Event has occurred or may occur with respect to such series of Notes and the date of such event;
(2) the purchase price and the purchase date which shall be fixed by the Company on a Business Day no earlier than 15 days nor later than 60 days from the date the notice is mailed or delivered electronically, other than as may be required by law;
(3) that any Note not tendered will continue to accrue interest;
(4) that, unless the Company defaults in the payment of the Change of Control Purchase Price, any Notes accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest after the Change of Control Purchase Date; and
(5) other procedures that a Holder of Notes must follow to accept a Change of Control Offer or to withdraw acceptance of the Change of Control Offer.
In addition, the notice, if sent prior to the date of the consummation of the Change of Control, will state that the Change of Control Offer is conditioned on the Change of Control being consummated on or prior to the Change of Control Purchase Date.
(c) If Holders of not less than 90% in aggregate principal amount of the outstanding Notes of an applicable series validly tender and do not withdraw such Notes in a Change of Control Offer and the Company, or any third party making a Change of Control Offer in lieu of the Company, as described in clause (d) below, purchases all of the Notes of such series validly tendered and not withdrawn by such Holders, the Company will have the right, upon not less than 15 nor more than 60 days’ prior notice, with such notice given not more than 30 days following the Change of Control Purchase Date, to redeem all Notes of such series that remain Outstanding following such purchase at a redemption price in cash equal to the Change of Control Purchase Price plus, to the extent not included in the Change of Control Purchase Price, accrued and unpaid interest, if any, on the Notes of such series that remain Outstanding to, but not including, the date of redemption (subject to the rights of Holders of record on relevant record dates to receive interest due on the relevant Interest Payment Date).
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(d) The Company will comply with Rule 14e-l under the Exchange Act, and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control Repurchase Event. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 401, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Section 401 by virtue of its compliance with such securities laws and regulations. The Company will not be required to make a Change of Control Offer upon a Change of Control Repurchase Event with respect to either series of Notes if a third party makes the Change of Control Offer with respect to such series of Notes in the manner, at the times and otherwise in compliance with the requirements described in this Supplemental Indenture applicable to a Change of Control Offer made by the Company and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer.
(e) On the Change of Control Purchase Date with respect to either series of Notes, the Company will, to the extent permitted by law:
(1) accept for payment all Notes of such series or portions thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Depositary or the Trustee, as applicable, an amount equal to the aggregate Change of Control Purchase Price in respect of all Notes of such series or portions thereof so tendered; and
(3) deliver, or cause to be delivered, to the Trustee for cancellation of the Notes of such series so accepted together with an Officers’ Certificate to the Trustee stating that such Notes or portions thereof have been tendered to and purchased by the Company.
SECTION 402 Limitation on Liens. With respect to the Notes, Section 4.08 of the Original Indenture is hereby amended to be replaced with the following:
As long as any Notes of any series remain Outstanding, the Company will not, and will not permit any Restricted Subsidiary to, create, incur or assume any Lien (other than Permitted Liens) on Restricted Property to secure the payment of Indebtedness of the Company or any Restricted Subsidiary if immediately after the creation, incurrence or assumption of such Lien, the aggregate outstanding principal amount of all Indebtedness of the Company and its Restricted Subsidiaries that is secured by Liens (other than Permitted Liens) on Restricted Property would exceed the greater of (i) $1,100,000,000 or (ii) 15% of the aggregate outstanding principal amount of all Indebtedness of the Company and its Restricted Subsidiaries (whether or not so secured), unless effective provision is made whereby the Notes of such series (together with, if the Company shall so determine, any other Indebtedness ranking equally with the Notes of such series, whether then existing or later created) are secured equally and ratably with (or prior to) such Indebtedness (but only for so long as such Indebtedness is so secured).
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SECTION 403 Limitation on Indebtedness of Restricted Subsidiaries. For purposes of this Supplemental Indenture and the Notes issued hereunder, Section 4.09 of the Original Indenture is hereby amended to be replaced with the following:
As long as any Notes of any series remain Outstanding, the Company will not permit any Restricted Subsidiary to incur or assume any Indebtedness if immediately after the incurrence or assumption of such Indebtedness, the aggregate outstanding principal amount of all Indebtedness of the Restricted Subsidiaries would exceed the greater of (i) $1,100,000,000 or (ii) 15% of the aggregate outstanding principal amount of all Indebtedness of the Company and its Restricted Subsidiaries; provided that in any event, a Restricted Subsidiary may incur Indebtedness to extend, renew or replace Indebtedness of such Restricted Subsidiary to the extent that the principal amount of the Indebtedness so incurred does not exceed the principal amount of the Indebtedness extended, renewed or replaced thereby immediately prior to such extension, renewal or replacement plus any premium, accrued and unpaid interest or capitalized interest payable thereon.
ARTICLE 5
SECTION 501 Guarantee.
(a) The Guarantor hereby fully and unconditionally guarantees the Notes of each series and the obligations of the Company thereunder and under the Indenture, and guarantees to each Holder of a Note of such series authenticated and delivered by the Trustee, and to the Trustee on behalf of such Holder, that (i) the principal of (and premium, if any) and interest on the Notes of such series will be paid in full when due, whether at Stated Maturity, by acceleration or otherwise (including, without limitation, the amount that would become due but for the operation of any automatic stay provision of any federal bankruptcy law), together with interest on the overdue principal, if any, and interest on any overdue interest, to the extent lawful, and all other obligations of the Company to the Holders or the Trustee under the Indenture or the Notes of such series will be paid in full or performed, all in accordance with the terms of the Indenture and the Notes of such series; and (ii) in case of any extension of time of payment or renewal of any Notes of such series or of any such other obligations, the same will be paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise.
(b) The Guarantor hereby agrees that, upon the occurrence of an Event of Default in payment of principal (or premium, if any) or interest on an applicable series of Notes, whether at Stated Maturity, by acceleration, purchase or otherwise, legal proceedings may be instituted by the Trustee on behalf of, or by, a Holder of such Notes of such series, subject to the terms and conditions set forth in the Indenture, directly against the Guarantor to enforce the Guarantee without first proceeding against the Company or any other guarantor. The Guarantor agrees that if, after the occurrence and during the continuance of an Event of Default with respect to an applicable series of Notes, the Trustee or any of the Holders are prevented by applicable law from exercising their respective rights to accelerate the maturity of the Notes of such series, to collect interest on the Notes of such series, or to enforce or exercise any other right or remedy with respect to the Notes of such series, the Guarantor will pay to the Trustee for the account of the Holders, upon demand therefor, the amount that would otherwise have been due and payable had such rights and remedies been permitted to be exercised by the Trustee or any of the Holders.
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(c) With respect to an applicable series of Notes, unless and until the Termination Date (as defined herein) has occurred, or the Guarantor shall be released in accordance with Section 504 of this Supplemental Indenture, to the fullest extent permitted by applicable law, the Guarantor shall remain obligated hereunder and the Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against the Company for liquidation or reorganization, should the Company become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Company's assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Notes of such series are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Notes of such series, whether as a "voidable preference", "fraudulent transfer" or otherwise, all as though such payment or performance had not been made. In the event that any payment, or any part thereof, is rescinded, reduced, restored or returned, the Notes of such series shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned.
(d) To the fullest extent permitted by applicable law, the Guarantor waives diligence, presentment, protest and notice of protest, demand for payment or performance, notice of default or nonpayment, notice of acceptance and any other notice in respect of the Company's obligations under any series of Notes and under the Indenture, and any defense arising by reason of any disability or other defense of the Company or the Guarantor with respect to such obligations (other than the defense that the Termination Date has occurred or the Guarantor has been released in accordance with Section 504 of this Supplemental Indenture). The Guarantor understands and agrees that the Guarantee contained in this Article 5 shall be construed as a continuing, absolute and unconditional guarantee of payment and performance and not merely of collectability, and its Guarantee of a particular series of Notes and the obligations of the Company under the Indenture hereunder shall not be affected by, and shall remain in full force and effect without regard to, and hereby waives all rights, claims or defenses that it might otherwise have (now or in the future) with respect to each of the following (whether or not the Guarantor has knowledge thereof): (i) the validity, regularity or enforceability of the Notes of such series or the Indenture or the absence of any action to enforce the same, (ii) the recovery of any judgment against the Company or any action to enforce the same, (iii) any renewal, extension or acceleration of, or any increase in the amount of the Company's obligations under such series of Notes and under the Indenture (whether or not any increase is committed, contemplated or provided for by the Indenture or the Notes of such series on the date hereof), (iii) any failure, omission or delay in enforcement (by agreement or otherwise), or the stay or enjoining (by court order, operation of law or otherwise) of the exercise of enforcement, of any claim or demand or any right, power or remedy (whether arising under the Indenture or the Notes of such series, at law, in equity or otherwise) with respect to the Company's obligations under such series of Notes and under the Indenture or (iv) any other circumstance whatsoever (with or without notice to or knowledge of the Guarantor) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Guarantor under the Guarantee contained in this Article 5, in bankruptcy or in any other instance (in each case, other than the occurrence of the Termination Date or the release of the Guarantor in accordance with Section 504 of this Supplemental Indenture).
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(e) The Guarantor further agrees that, as between the Guarantor, on the one hand, and the Holders and the Trustee, on the other hand (i) subject to the terms and provisions of this Supplemental Indenture, the maturity of the obligations under an applicable series of Notes guaranteed hereby may be accelerated as provided in Article VI of the Original Indenture for the purposes of this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (ii) in the event of any acceleration of such obligations as provided in Article VI of the Original Indenture, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor for the purpose of this Guarantee.
(f) Subject to Section 504 of this Supplemental Indenture, the Guarantee of a series of Notes contained in this Article 5 shall remain in full force and effect until all the obligations of the Company under such series of Notes and under the Indenture shall have been satisfied by payment in full (such date, the "Termination Date").
(g) The Guarantee by the Guarantor of a series of Notes shall be independent of and shall not be affected by the Guarantee by the Guarantor of any other series of Notes or other Debt Securities issued under the Indenture.
SECTION 502 Subrogation. The Guarantor shall be subrogated to all rights of Holders against the Company in respect of any amounts paid by the Guarantor pursuant to its Guarantee; provided, however; that if an Event of Default has occurred and is continuing with respect to a series of Notes, the Guarantor shall not be entitled to enforce or receive any payments arising out of, or based upon, such right of subrogation until all amounts then due and payable by the Company under the Indenture or the applicable series of Notes shall have been paid in full.
SECTION 503 Reinstatement. Subject to Section 504 of this Supplemental Indenture, the Guarantee of a series of Notes contained in this Article 5 shall continue to be effective, or be reinstated, as the case may be, if at any time payment, or any part thereof, of any of the Company's obligations with respect to such series of Notes or the Indenture is rescinded or must otherwise be restored or returned by the Trustee or any Holder upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of the Guarantor, or upon or as a result of the appointment of a receiver, intervenor or conservator of, or trustee or similar officer for, the Guarantor or any substantial part of its property, or otherwise, all as though such payments had not been made.
SECTION 504 Release of Guarantee. (a) The Guarantor shall, upon the occurrence of any of the following events, be automatically and unconditionally released and discharged from all obligations with respect to the Notes of an applicable series, the Indenture and the Guarantee of such series of Notes without any action required on the part of the Trustee or any Holder:
(i) on the Termination Date;
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(ii) upon the termination or release of the Company's guarantee of the Guarantor's obligations under the Credit Agreement;
(iii) upon any covenant defeasance or legal defeasance with respect to such series of Notes and the Indenture, or upon the discharge of the Company's obligations with respect to such series of Notes and obligations under the Indenture in accordance with its terms;
(iv) upon (A) the consolidation or merger by the Company with or into any Person or (B) the conveyance, transfer or lease of all or substantially all the assets of the Company, in a transaction that complies with the Indenture, such that the Company ceases to be a subsidiary of the Guarantor; or
(v) upon (A) the consolidation or merger by the Guarantor with or into any Person or (B) the conveyance, transfer or lease of all or substantially all the assets of the Guarantor, such that the Company ceases to be a subsidiary of the Guarantor.
The release of the Guarantor's Guarantee of an applicable series of Notes hereunder shall be independent of and shall not be affected by the release of the Guarantor's Guarantee of any other series of Notes or other Debt Securities issued under the Indenture.
SECTION 505 Execution and Delivery. The Guarantor hereby agrees that the Guarantee of an applicable series of Notes will remain in full force and effect notwithstanding any failure to endorse on each Note of such series a notation of such Guarantee.
ARTICLE 6
MISCELLANEOUS PROVISIONS
The Trustee makes no undertaking or representations in respect of, and shall not be responsible in any manner whatsoever for and in respect of, the validity or sufficiency of this Supplemental Indenture or the Guarantees or the proper authorization or the due execution hereof by the Company or the Guarantor or for or in respect of the recitals and statements contained herein, all of which recitals and statements are made solely by the Company.
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The Trustee (which shall be deemed to include the Paying Agent when the Trustee is also acting as a Paying Agent) shall have the right to accept and act upon instructions, including funds transfer instructions ("Instructions") given pursuant to this Indenture and delivered using Electronic Means (as defined above); provided, however, that the Company shall provide to the Trustee an incumbency certificate listing officers with the authority to provide such Instructions ("Authorized Officers") and containing specimen signatures of such Authorized Officers, which incumbency certificate shall be amended by the Company whenever a person is to be added or deleted from the listing. If the Company elects to give the Trustee Instructions using Electronic Means and the Trustee in its discretion elects to act upon such Instructions, the Trustee's understanding of such Instructions shall be deemed controlling. The Company understands and agrees that the Trustee cannot determine the identity of the actual sender of such Instructions and that the Trustee shall conclusively presume that directions that purport to have been sent by an Authorized Officer listed on the incumbency certificate provided to the Trustee have been sent by such Authorized Officer. The Company shall be responsible for ensuring that only Authorized Officers transmit such Instructions to the Trustee and that the Company and all Authorized Officers are solely responsible to safeguard the use and confidentiality of applicable user and authorization codes, passwords and/or authentication keys upon receipt by the Company. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee's reliance upon and compliance with such Instructions notwithstanding such directions conflict or are inconsistent with a subsequent written instruction. The Company agrees: (i) to assume all risks arising out of the use of Electronic Means to submit Instructions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized Instructions, and the risk of interception and misuse by third parties; (ii) that it is fully informed of the protections and risks associated with the various methods of transmitting Instructions to the Trustee and that there may be more secure methods of transmitting Instructions than the method(s) selected by the Company; (iii) that the security procedures (if any) to be followed in connection with its transmission of Instructions provide to it a commercially reasonable degree of protection in light of its particular needs and circumstances; and (iv) to notify the Trustee immediately upon learning of any compromise or unauthorized use of the security procedures.
For purposes of this Supplemental Indenture and the Notes, Section 7.02 of the Original Indenture is hereby amended to include the following additional rights of the Trustee:
(i) in no event shall the Trustee be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action;
(j) in no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, epidemics or pandemics, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances;
(k) the Trustee shall not be deemed to have notice of any Default or Event of Default unless a Responsible Officer of the Trustee has actual written notice thereof at the designated Corporate Trust Office of the Trustee, and such notice references the Notes and this Indenture;
(1) the rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder;
(m) the Trustee may require that the Company deliver a certificate setting forth the names of individuals, and their titles and direct-dial telephone numbers, of officers authorized at such time to take specified actions pursuant to this Indenture;
| 29 |
(n) the Trustee shall not be liable for errors in judgment made in good faith unless it is proved that the Trustee was grossly negligent in ascertaining the pertinent facts; and
(o) the Trustee may act at the direction of requisite Holders without liability.
For purposes of this Supplemental Indenture and the Notes, Section 2.04 of the Original Indenture is hereby amended as follows:
(a) the Company shall be permitted to execute the Notes by manual, facsimile or electronic signature (so long as any such electronic signature is a true representation of the actual signature of the signatory thereof); and
(b) the Trustee shall be permitted to authenticate the Notes by manual, facsimile or electronic signature (so long as any such electronic signature is a true representation of the actual signature of the signatory thereof).
This Supplemental Indenture shall be governed by, and construed in accordance with, the laws of the State of New York.
Each of the Company, the Guarantor and the Trustee (i) expressly and irrevocably consents to submit itself to the exclusive personal jurisdiction of the state courts in the Borough of Manhattan in the City of New York in the State of New York, and any federal court located in the Borough of Manhattan in the City of New York in the State of New York, together with any appellate court therefrom, with respect to all actions and proceedings arising out of this Indenture, the Notes or the Guarantees and (ii) expressly and irrevocably waives (and agrees not to plead or claim) any objection to the laying of venue of any action or proceeding arising out of this Indenture, the Notes or the Guarantees in such court or that any such action or proceeding brought in any such court has been brought in an inconvenient forum.
This Supplemental Indenture may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument. Any such counterparts may be executed manually, electronically or by facsimile.
EACH OF THE COMPANY, THE GUARANTOR, THE TRUSTEE AND THE HOLDERS BY ACCEPTANCE OF THE NOTES HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS SUPPLEMENTAL INDENTURE, THE NOTES OR THE TRANSACTION CONTEMPLATED HEREBY.
In order to comply with applicable tax laws (inclusive of rules, regulations and interpretations promulgated by competent authorities) related to the Indenture in effect from time to time (collectively, "Applicable Tax Law") that a foreign financial institution, issuer, trustee, paying agent or other party is or has agreed to be subject to, the Company agrees (i) upon reasonable written request of the Trustee, to use commercially reasonable efforts to provide to the Trustee, to the extent available, sufficient information about the parties and/or transactions (including any modification to the terms of such transactions) so that the Trustee can determine whether it has tax-related obligations under Applicable Tax Law and (ii) that the Trustee shall be entitled to make any withholding or deduction in respect of taxes from payments under the Indenture to the extent necessary to comply with Applicable Tax Law for which the Trustee shall not have any liability. Nothing in the immediately preceding sentence shall be construed as obligating the Company to make any "gross up" payment or similar reimbursement in connection with a payment in respect of which amounts are so withheld or deducted. The terms of this paragraph shall survive the satisfaction and discharge of the Indenture.
[SIGNATURE PAGES FOLLOW]
| 30 |
IN WITNESS WHEREOF, the Parties have executed this Supplemental Indenture by their duly authorized signatories as of the date first above written.
| COX COMMUNICATIONS, INC., as Issuer | ||
| By: | /s/ Perley McBride | |
| Name: Perley McBride | ||
| Title: Executive Vice President and Chief Financial Officer | ||
| By: | /s/ Charles L. Odom | |
| Name: Charles L. Odom | ||
| Title: Vice President and Treasurer | ||
[Signature Page to Twentieth Supplemental Indenture]
| COX ENTERPRISES, INC., as Guarantor | ||
| By: | /s/ Maria L. Friedman | |
| Name: Maria L. Friedman | ||
| Title: Executive Vice President, Finance | ||
| By: | /s/ Charles L. Odom | |
| Name: Charles L. Odom | ||
| Title: Senior Vice President, Corporate Finance & Treasurer | ||
[Signature Page to Twentieth Supplemental Indenture]
| THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., | ||
| as Trustee | ||
| By: | /s/ Ann M. Dolezal | |
| Name: Ann M. Dolezal | ||
| Title: Vice President | ||
[Signature Page to Twentieth Supplemental Indenture]
EXHIBIT A-l(i)
[FORM OF FACE OF SECURITY]
[TRANSFER RESTRICTION LEGEND]
[THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS A NON-U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH THE LAWS APPLICABLE TO SUCH PURCHASER IN THE JURISDICTION IN WHICH SUCH PURCHASE IS MADE AND (2) AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE RESTRICTION TERMINATION DATE") THAT IS ONE YEAR AFTER THE LATEST OF THE ISSUE DATE HEREOF, THE ORIGINAL ISSUE DATE OF ANY ADDITIONAL NOTES (AS DEFINED IN THE INDENTURE GOVERNING THIS SECURITY) AND THE LAST DATE ON WHICH THE COMPANY OR ANY OF ITS AFFILIATES WERE THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE COMPANY, THE GUARANTOR OR ANY SUBSIDIARY THEREOF, (B) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH THE LAWS APPLICABLE TO IT IN THE JURISDICTION IN WHICH SUCH PURCHASE IS MADE, (D) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S, OR REGISTRAR'S, AS APPLICABLE, RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (C) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE FOREGOING CASES, A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE OR REGISTRAR. THIS LEGEND WILL BE REMOVED UPON THE WRITTEN REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.]
| A-1(i)-1 |
[GLOBAL NOTES LEGEND]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON 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.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS, IN WHOLE BUT NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN ARTICLE TWO OF THE TWENTIETH SUPPLEMENTAL INDENTURE REFERRED TO ON THE REVERSE HEREOF.]
| A-1(i)-2 |
| No. R- | PRINCIPAL AMOUNT | |
| CUSIP No. 224044 CR6 | $ |
COX COMMUNICATIONS, INC.
5.450% Notes due 2028
COX COMMUNICATIONS, INC., a Delaware corporation (hereinafter called the "Company," which term includes any successor corporation under the Indenture referred to below), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of [ ] ($ ) on September 15, 2028 (the "Maturity Date"), unless previously redeemed, and to pay interest thereon from June 20, 2023 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, payable semiannually on March 15 and September 15 of each year (each, an "Interest Payment Date"), commencing September 15, 2023 at the rate of 5.450% per annum, until the principal hereof is paid or duly made available for payment. Interest shall be computed on the basis of a 360-day year of twelve 30-day months. The interest so payable and punctually paid or duly provided for on any Interest Payment Date will, as provided in the Indenture, be paid to the Person in whose name this Note (or one or more predecessor securities) is registered at the close of business on the regular record date for such interest, which shall be March 1 or September 1 (whether or not a Business Day), as the case may be, immediately preceding such Interest Payment Date. Any such interest which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date shall forthwith cease to be payable to the registered Holder hereof on the relevant regular record date by virtue of having been such Holder, and may be paid to the Person in whose name this Note (or one or more predecessor securities) is registered at the close of business on a subsequent special record date (which shall be not more than 15 days and not less than 10 days before the payment date) for the payment of such defaulted interest to be fixed by the Trustee, notice whereof shall be given to the Holders of Notes of this series not less than 10 days prior to such special record date, or may be paid at any time in any other lawful manner, all as more fully provided in such Indenture. If any Interest Payment Date, Redemption Date or the Maturity Date falls on a day that is not a Business Day, the required payment shall be made on the next Business Day as if it were made on the date such payment was due and no interest shall accrue on the amount so payable for the period from and after such Interest Payment Date, Redemption Date or the Maturity Date, as the case may be, to such next Business Day. Payments of principal, premium, if any, and interest hereunder shall be made in such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts and shall be made immediately available to the Holder (as defined below) hereof.
This Note is one of the duly authorized series of Debt Securities of the Company, designated as the Company's "5.450% Notes due 2028" (the "Notes"), initially limited to an aggregate principal amount of $500,000,000, all issued or to be issued under and pursuant to an Indenture dated as of June 27, 1995 (the "Original Indenture"), as supplemented by the Twentieth Supplemental Indenture dated as of June 20, 2023 (the "Twentieth Supplemental Indenture" and, together with the Original Indenture, the "Indenture"), duly executed and delivered by the Company and Cox Enterprises, Inc., a Delaware corporation, as guarantor (the "Guarantor"), to The Bank of New York Mellon Trust Company, N.A, as trustee (hereinafter referred to as the "Trustee"), to which Indenture and all indentures supplemental thereto reference is hereby made for a description of the rights, limitation of rights, obligations, duties and immunities thereunder of the Trustee, the Company, the Guarantor and the Holders (the words "Holders" or "Holder" meaning the registered holders or registered holder of the Notes).
| A-1(i)-3 |
The Notes and the obligations of the Company thereunder and under the Indenture shall be fully and unconditionally guaranteed on a senior unsecured basis by the Guarantor (the "Guarantee"). The Guarantee will be automatically and unconditionally released and discharged upon the occurrence of certain events without any action required on the part of the Trustee or any Holder in accordance with the terms of the Twentieth Supplemental Indenture.
Prior to the Par Call Date, this Note will be redeemable at the option of the Company, in whole or in part, at any time and from time to time, at a Redemption Price (expressed as a percentage of principal amount and rounded to three decimal places) equal to the greater of (i) (a) the sum of the present values of the remaining scheduled payments of principal and interest thereon discounted to the Redemption Date (assuming this Note matured on the Par Call Date) on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as defined below) plus 25 basis points, less (b) interest accrued to the Redemption Date, and (ii) 100% of the principal amount of this Note to be redeemed, plus,jn either case, accrued and unpaid interest thereon to the Redemption Date. On or after the Par Call Date, this Note will be redeemable at the option of the Company, in whole or in part, at any time and from time to time, at a Redemption Price equal to 100% of the principal amount of this Note being redeemed, plus accrued and unpaid interest thereon to the Redemption Date.
"Par Call Date" means August 15, 2028.
"Treasury Rate" means, with respect to any Redemption Date, the yield determined by the Company in accordance with the following paragraphs.
The Treasury Rate shall be determined by the Company after 4:15 p.m., New York City time (or after such time as yields on U.S. government securities are posted daily by the Board of Governors of the Federal Reserve System), on the third business day preceding the Redemption Date based upon the yield or yields for the most recent day that appear after such time on such day in the most recent statistical release published by the Board of Governors of the Federal Reserve System designated as "Selected Interest Rates (Daily) — H.15" (or any successor designation or publication) (H.15) under the caption "U.S. government securities – Treasury constant maturities – Nominal" (or any successor caption or heading). In determining the Treasury Rate, the Company shall select, as applicable: (i) the yield for the Treasury constant maturity on H.15 exactly equal to the period from the Redemption Date to the Par Call Date (the Remaining Life); or (ii) if there is no such Treasury constant maturity on H.15 exactly equal to the Remaining Life, the — two yields one yield corresponding to the Treasury constant maturity on H.15 immediately shorter than and one yield corresponding to the Treasury constant maturity on H.15 immediately longer than the Remaining Life — and shall interpolate to the Par Call Date on a straight-line basis (using the actual number of days) using such yields and rounding the result to three decimal places; or (iii) if there is no such Treasury constant maturity on H.15 shorter than or longer than the Remaining Life, the yield for the single Treasury constant maturity on H.15 closest to the Remaining Life. For purposes of this paragraph, the applicable Treasury constant maturity or maturities on H.15 shall be deemed to have a maturity date equal to the relevant number of months or years, as applicable, of such Treasury constant maturity from the Redemption Date.
| A-1(i)-4 |
If on the third business day preceding the Redemption Date H.15 or any successor designation or publication is no longer published, the Company shall calculate the Treasury Rate based on the rate per annum equal to the semi-annual equivalent yield to maturity at 11:00 a.m., New York City time, on the second business day preceding such Redemption Date of the United States Treasury security maturing on, or with a maturity that is closest to, the Par Call Date, as applicable. If there is no United States Treasury security maturing on the Par Call Date but there are two or more United States Treasury securities with a maturity date equally distant from the Par Call Date, one with a maturity date preceding the Par Call Date and one with a maturity date following the Par Call Date, the Company shall select the United States Treasury security with a maturity date preceding the Par Call Date. If there are two or more United States Treasury securities maturing on the Par Call Date or two or more United States Treasury securities meeting the criteria of the preceding sentence, the Company shall select from among these two or more United States Treasury securities the United States Treasury security that is trading closest to par based upon the average of the bid and asked prices for such United States Treasury securities at 11:00 a.m., New York City time. In determining the Treasury Rate in accordance with the terms of this paragraph, the semi-annual yield to maturity of the applicable United States Treasury security shall be based upon the average of the bid and asked prices (expressed as a percentage of principal amount) at 11:00 a.m., New York City time, of such United States Treasury security, and rounded to three decimal places.
The Company's actions and determinations in determining the Redemption Price shall be conclusive and binding for all purposes, absent manifest error.
Notice of any redemption will be mailed or electronically delivered (or otherwise transmitted in accordance with the depositary's procedures) at least 10 days but not more than 60 days before the Redemption Date to each holder of notes to be redeemed.
In the case of a partial redemption, selection of this Note for redemption will be made pro rata, by lot or by such other method as the Trustee in its sole discretion deems appropriate and fair. No Note of a principal amount of $2,000 or less will be redeemed in part. If any Note is to be redeemed in part only, the notice of redemption that relates to this Note will state the portion of the principal amount of this Note to be redeemed. A new note in a principal amount equal to the unredeemed portion of this Note will be issued in the name of the holder of this Note upon surrender for cancellation of this Note. For so long as this Note is held by DTC (or another depositary), the redemption of this Note shall be done in accordance with the policies and procedures of the depositary.
Unless the Company defaults in payment of the Redemption Price, on and after the Redemption Date, interest will cease to accrue on this Note or portions thereof called for redemption.
If money sufficient to pay the Redemption Price and accrued and unpaid interest on the principal amount of this Note to be redeemed on the Redemption Date is deposited with the Trustee or Paying Agent on or before the Redemption Date and certain other conditions specified in the Indenture are satisfied, then on or after such date, interest will cease to accrue on the principal amount of this Note called for redemption.
Any notice of redemption may, at the Company's discretion, be subject to the satisfaction of one or more conditions precedent, and if such notice of redemption is conditioned upon the occurrence of one or more conditions precedent, such notice shall state the nature of such conditions precedent.
A-1(i)-5
Except as provided above, this Note is not redeemable by the Company prior to maturity.
This Note is not subject to any sinking fund.
Upon the occurrence of a Change of Control Repurchase Event, unless the Company has redeemed this Note or the Company has defeased this Security or satisfied and discharged this Note, the Holder of this Note shall have the right to require that the Company purchase all or a portion (such principal amount to be equal to $2,000 or integral multiples of $1,000 in excess thereof), of this Note at a purchase price in cash in an amount equal to 101% of the principal amount thereof, plus accrued but unpaid interest, if any, to, but not including, the date of purchase. Within 30 days following any Change of Control Repurchase Event, the Company shall deliver a notice to each Holder, in accordance with Section 401(b) of the Twentieth Supplemental Indenture, with a copy to the Trustee, which notice shall govern the terms of the Change of Control Offer. Notice of any redemption pursuant to the Change of Control Offer will be mailed or delivered electronically at least 15 days but not more than 60 days before the Redemption Date to the Holder hereof in accordance with the Twentieth Supplemental Indenture.
In case an Event of Default shall occur and be continuing, the principal hereof may be declared, and upon such declaration shall become, due and payable, in the manner, with the effect and subject to the conditions provided in the Indenture.
Subject to certain exceptions set forth in the Indenture, (i) the Indenture may be amended with respect to the Notes with the consent of the Holders of at least a majority in principal amount outstanding of the Notes and (ii) any default or noncompliance with any provisions applicable to the Notes may be waived with the consent of the Holders of a majority in principal amount outstanding of the Notes. Subject to certain exceptions set forth in the Indenture, without the consent of any Holder, the Company and the Trustee may amend the Indenture or the Notes to, among other things, cure any ambiguity, defect or inconsistency, or to provide for the assumption by a successor person of the obligations of the Company under the Indenture, or to add additional covenants or surrender any right or power conferred on the Company, or to establish the form or terms of the Notes of any series, or to appoint a successor Trustee or provide for administration of the trust by more than one Trustee, or to add to, delete from or revise the conditions, limitations, and restrictions on the authorized amount, terms or purposes of issue, authentication and delivery of the Notes or to add any additional event of default, or to modify the provisions of the Indenture as shall be necessary to facilitate the defeasance and discharge of the Notes as shall not adversely affect any Holders, or to secure the Notes, or to make provisions with respect to exchange rights of Holders, or to make any change that does not adversely affect the rights of any Holder.
Subject to certain conditions, the Company at any time may terminate some or all of its obligations and the obligations of the Guarantor under the Notes and the Indenture if the Company deposits with the Trustee money or U.S. Government Obligations for the payment of principal, premium, if any, and interest on the Notes to the Maturity Date.
A-1(i)-6
If money for the payment of principal or interest remains unclaimed for two years, the Trustee or Paying Agent shall pay the money back to the Company at its request unless an abandoned property law designates another Person. After any such payment, Holders entitled to the money must look only to the Company and not to the Trustee for payment.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and premium, if any, and interest on this Note at the place, at the respective times, at the rate, and in the coin or currency herein prescribed.
No director, officer, employee or stockholder, as such, of the Company or the Guarantor shall have any liability for any obligations of the Company under this Note or the Indenture or the obligations of the Guarantor under the Indenture, as applicable, or for any claim based on, in respect of or by reason of such obligations or their creation. Each Holder, by accepting this Note, waives and releases all such liability. The waiver and release are part of the consideration for the issue of this Note.
This Note and the Indenture shall be governed by and construed in accordance with the law of the State of New York applicable to agreements made or instruments entered into and, in each case, performed in said state.
Ownership of this Note shall be proved by the register for the Notes kept by the Registrar. The Company, the Trustee and any agent of the Company may treat the Person in whose name a Note is registered as the absolute owner thereof for all purposes.
Pursuant to a recommendation promulgated by the Committee on Uniform Securities Identification Procedures ("CUSIP"), the Company has caused a CUSIP number to be printed on this Note and has directed the Trustee to use the CUSIP number as a convenience to Holders. No representation is made as to the correctness of such numbers and reliance may be placed only on the other identification numbers printed on this Note.
Terms used herein without definition that are defined in the Indenture shall have the meanings assigned to them in the Indenture.
Unless the Certificate of Authentication hereon has been executed by the Trustee under the Indenture referred to herein by the manual, facsimile or electronic signature of one of its authorized officers, or on behalf of the Trustee by the manual, facsimile or electronic signature of an authorized officer of the Trustee's authenticating agent, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
[Remainder of Page Intentionally Left Blank]
A-1(i)-7
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed, manually or by facsimile.
Date: June 20, 2023
| COX COMMUNICATIONS, INC. | ||
| By: | ||
| Name: Perley McBride | ||
| Title: Executive Vice President and Chief Financial Officer | ||
| By: | ||
| Name: Charles L. Odom | ||
| Title: Vice President and Treasurer | ||
[Signature Page to Global Note]
CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated therein referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
as Trustee
| By: | ||
| Authorized Signatory | ||
| Dated: | ||
[Signature Page to Global Note]
ASSIGNMENT FORM
| FOR VALUE RECEIVED, the undersigned hereby sell(s) assign(s) and transfer(s) unto | |
| Please insert social security number 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_________ attorney to transfer said Note of Cox Communications, Inc. on the books of Cox Communications, Inc. 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 this Note in every particular without alteration or enlargement or any change whatsoever. The Signature must be guaranteed by an "eligible guarantor institution meeting the requirements of the Registrar, which requirements include memberships or participation in the Security Transfer Agent Medallion Program ("STAMP") or such other "signature guarantee program" as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934.
EXHIBIT A-l(ii)
[FORM OF FACE OF SECURITY]
[TRANSFER RESTRICTION LEGEND]
[THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS A NON-U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH THE LAWS APPLICABLE TO SUCH PURCHASER IN THE JURISDICTION IN WHICH SUCH PURCHASE IS MADE AND (2) AGREE; TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE RESTRICTION TERMINATION DATE") THAT IS ONE YEAR AFTER THE LATEST OF THE ISSUE DATE HEREOF, THE ORIGINAL ISSUE DATE OF ANY ADDITIONAL NOTES (AS DEFINED IN THE INDENTURE GOVERNING THIS SECURITY) AND THE LAST DATE ON WHICH THE COMPANY OR ANY OF ITS AFFILIATES WERE THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE COMPANY, THE GUARANTOR OR ANY SUBSIDIARY THEREOF, (B) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH THE LAWS APPLICABLE TO IT IN THE JURISDICTION IN WHICH SUCH PURCHASE IS MADE, (D) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S, OR REGISTRAR'S, AS APPLICABLE, RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (C) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE FOREGOING CASES, A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE OR REGISTRAR. THIS LEGEND WILL BE REMOVED UPON THE WRITTEN REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.]
A-1(ii)-1
[GLOBAL NOTES LEGEND]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON 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.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS, IN WHOLE BUT NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN ARTICLE TWO OF THE TWENTIETH SUPPLEMENTAL INDENTURE REFERRED TO ON THE REVERSE HEREOF.]
A-1(ii)-2
| No. R- | PRINCIPAL AMOUNT | |
| CUSIP No. 224044 CS4 | $ |
COX COMMUNICATIONS, INC.
5.700% Notes due 2033
COX COMMUNICATIONS, INC., a Delaware corporation (hereinafter called the "Company," which term includes any successor corporation under the Indenture referred to below), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of [ ] ($ ) on June 15, 2033 (the "Maturity Date"), unless previously redeemed, and to pay interest thereon from June 20, 2023 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, payable semiannually on June 15 and December 15 of each year (each, an "Interest Payment Date"), commencing December 15, 2023 at the rate of 5.700% per annum, until the principal hereof is paid or duly made available for payment. Interest shall be computed on the basis of a 360-day year of twelve 30-day months. The interest so payable and punctually paid or duly provided for on any Interest Payment Date will, as provided in the Indenture, be paid to the Person in whose name this Note (or one or more predecessor securities) is registered at the close of business on the regular record date for such interest, which shall be June 1 or December 1 (whether or not a Business Day), as the case may be, immediately preceding such Interest Payment Date. Any such interest which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date shall forthwith cease to be payable to the registered Holder hereof on the relevant regular record date by virtue of having been such Holder, and may be paid to the Person in whose name this Note (or one or more predecessor securities) is registered at the close of business on a subsequent special record date (which shall be not more than 15 days and not less than 10 days before the payment date) for the payment of such defaulted interest to be fixed by the Trustee, notice whereof shall be given to the Holders of Notes of this series not less than 10 days prior to such special record date, or may be paid at any time in any other lawful manner, all as more fully provided in such Indenture. If any Interest Payment Date, Redemption Date or the Maturity Date falls on a day that is not a Business Day, the required payment shall be made on the next Business Day as if it were made on the date such payment was due and no interest shall accrue on the amount so payable for the period from and after such Interest Payment Date, Redemption Date or the Maturity Date, as the case may be, to such next Business Day. Payments of principal, premium, if any, and interest hereunder shall be made in such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts and shall be made immediately available to the Holder (as defined below) hereof.
This Note is one of the duly authorized series of Debt Securities of the Company, designated as the Company's "5.700% Notes due 2033" (the "Notes"), initially limited to an aggregate principal amount of $500,000,000, all issued or to be issued under and pursuant to an Indenture dated as of June 27, 1995 (the "Original Indenture"), as supplemented by the Twentieth Supplemental Indenture dated as of June 20, 2023 (the "Twentieth Supplemental Indenture" and, together with the Original Indenture, the "Indenture"), duly executed and delivered by the Company and Cox Enterprises, Inc., a Delaware corporation, as guarantor (the "Guarantor"), to The Bank of New York Mellon Trust Company, N.A, as trustee (hereinafter referred to as the "Trustee"), to which Indenture and all indentures supplemental thereto reference is hereby made for a description of the rights, limitation of rights, obligations, duties and immunities thereunder of the Trustee, the Company, the Guarantor and the Holders (the words "Holders" or "Holder" meaning the registered holders or registered holder of the Notes).
A-1(ii)-3
The Notes and the obligations of the Company thereunder and under the Indenture shall be fully and unconditionally guaranteed on a senior unsecured basis by the Guarantor (the "Guarantee"). The Guarantee will be automatically and unconditionally released and discharged upon the occurrence of certain events without any action required on the part of the Trustee or any Holder in accordance with the terms of the Twentieth Supplemental Indenture.
Prior to the Par Call Date, this Note will be redeemable at the option of the Company, in whole or in part, at any time and from time to time, at a Redemption Price (expressed as a percentage of principal amount and rounded to three decimal places) equal to the greater of (i) (a) the sum of the present values of the remaining scheduled payments of principal and interest thereon discounted to the Redemption Date (assuming this Note matured on the Par Call Date) on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as defined below) plus 30 basis points, less (b) interest accrued to the Redemption Date, and (ii) 100% of the principal amount of this Note to be redeemed, plus, in either case, accrued and unpaid interest thereon to the Redemption Date. On or after the Par Call Date, this Note will be redeemable at the option of the Company, in whole or in part, at any time and from time to time, at a Redemption Price equal to 100% of the principal amount of this Note being redeemed, plus accrued and unpaid interest thereon to the Redemption Date.
"Par Call Date" means March 15, 2033.
"Treasury Rate" means, with respect to any Redemption Date, the yield determined by the Company in accordance with the following paragraphs.
The Treasury Rate shall be determined by the Company after 4:15 p.m., New York City time (or after such time as yields on U.S. government securities are posted daily by the Board of Governors of the Federal Reserve System), on the third business day preceding the Redemption Date based upon the yield or yields for the most recent day that appear after such time on such day in the most recent statistical release published by the Board of Governors of the Federal Reserve System designated as "Selected Interest Rates (Daily) — H.15" (or any successor designation or publication) (H.15) under the caption "U.S. government securities – Treasury constant maturities – Nominal" (or any successor caption or heading). In determining the Treasury Rate, the Company shall select, as applicable: (i) the yield for the Treasury constant maturity on H.15 exactly equal to the period from the Redemption Date to the Par Call Date (the Remaining Life); or (ii) if there is no such Treasury constant maturity on H.15 exactly equal to the Remaining Life, the two yields – one yield corresponding to the Treasury constant maturity on H.15 immediately shorter than and one yield corresponding to the Treasury constant maturity on H.15 immediately longer than the Remaining Life — and shall interpolate to the Par Call Date on a straight-line basis (using the actual number of days) using such yields and rounding the result to three decimal places; or (iii) if there is no such Treasury constant maturity on H.15 shorter than or longer than the Remaining Life, the yield for the single Treasury constant maturity on H.15 closest to the Remaining Life. For purposes of this paragraph, the applicable Treasury constant maturity or maturities on H.15 shall be deemed to have a maturity date equal to the relevant number of months or years, as applicable, of such Treasury constant maturity from the Redemption Date.
A-1(ii)-4
If on the third business day preceding the Redemption Date H.15 or any successor designation or publication is no longer published, the Company shall calculate the Treasury Rate based on the rate per annum equal to the semi-annual equivalent yield to maturity at 11:00 a.m., New York City time, on the second business day preceding such Redemption Date of the United States Treasury security maturing on, or with a maturity that is closest to, the Par Call Date, as applicable. If there is no United States Treasury security maturing on the Par Call Date but there are two or more United States Treasury securities with a maturity date equally distant from the Par Call Date, one with a maturity date preceding the Par Call Date and one with a maturity date following the Par Call Date, the Company shall select the United States Treasury security with a maturity date preceding the Par Call Date. If there are two or more United States Treasury securities maturing on the Par Call Date or two or more United States Treasury securities meeting the criteria of the preceding sentence, the Company shall select from among these two or more United States Treasury securities the United States Treasury security that is trading closest to par based upon the average of the bid and asked prices for such United States Treasury securities at 11:00 a.m., New York City time. In determining the Treasury Rate in accordance with the terms of this paragraph, the semi-annual yield to maturity of the applicable United States Treasury security shall be based upon the average of the bid and asked prices (expressed as a percentage of principal amount) at 11:00 a.m., New York City time, of such United States Treasury security, and rounded to three decimal places.
The Company's actions and determinations in determining the Redemption Price shall be conclusive and binding for all purposes, absent manifest error.
Notice of any redemption will be mailed or electronically delivered (or otherwise transmitted in accordance with the depositary's procedures) at least 10 days but not more than 60 days before the Redemption Date to each holder of notes to be redeemed.
In the case of a partial redemption, selection of this Note for redemption will be made pro rata, by lot or by such other method as the Trustee in its sole discretion deems appropriate and fair. No Note of a principal amount of $2,000 or less will be redeemed in part. If any Note is to be redeemed in part only, the notice of redemption that relates to this Note will state the portion of the principal amount of this Note to be redeemed. A new note in a principal amount equal to the unredeemed portion of this Note will be issued in the name of the holder of this Note upon surrender for cancellation of this Note. For so long as this Note is held by DTC (or another depositary), the redemption of this Note shall be done in accordance with the policies and procedures of the depositary.
Unless the Company defaults in payment of the Redemption Price, on and after the Redemption Date, interest will cease to accrue on this Note or portions thereof called for redemption.
If money sufficient to pay the Redemption Price and accrued and unpaid interest on the principal amount of this Note to be redeemed on the Redemption Date is deposited with the Trustee or Paying Agent on or before the Redemption Date and certain other conditions specified in the Indenture are satisfied, then on or after such date, interest will cease to accrue on the principal amount of this Note called for redemption.
Any notice of redemption may, at the Company's discretion, be subject to the satisfaction of one or more conditions precedent, and if such notice of redemption is conditioned upon the occurrence of one or more conditions precedent, such notice shall state the nature of such conditions precedent.
A-1(ii)-5
Except as provided above, this Note is not redeemable by the Company prior to maturity.
This Note is not subject to any sinking fund.
Upon the occurrence of a Change of Control Repurchase Event, unless the Company has redeemed this Note or the Company has defeased this Security or satisfied and discharged this Note, the Holder of this Note shall have the right to require that the Company purchase all or a portion (such principal amount to be equal to $2,000 or integral multiples of $1,000 in excess thereof), of this Note at a purchase price in cash in an amount equal to 101% of the principal amount thereof, plus accrued but unpaid interest, if any, to, but not including, the date of purchase. Within 30 days following any Change of Control Repurchase Event, the Company shall deliver a notice to each Holder, in accordance with Section 401(b) of the Twentieth Supplemental Indenture, with a copy to the Trustee, which notice shall govern the terms of the Change of Control Offer. Notice of any redemption pursuant to the Change of Control Offer will be mailed or delivered electronically at least 15 days but not more than 60 days before the Redemption Date to the Holder hereof in accordance with the Twentieth Supplemental Indenture.
In case an Event of Default shall occur and be continuing, the principal hereof may be declared, and upon such declaration shall become, due and payable, in the manner, with the effect and subject to the conditions provided in the Indenture.
Subject to certain exceptions set forth in the Indenture, (i) the Indenture may be amended with respect to the Notes with the consent of the Holders of at least a majority in principal amount outstanding of the Notes and (ii) any default or noncompliance with any provisions applicable to the Notes may be waived with the consent of the Holders of a majority in principal amount outstanding of the Notes. Subject to certain exceptions set forth in the Indenture, without the consent of any Holder, the Company and the Trustee may amend the Indenture or the Notes to, among other things, cure any ambiguity, defect or inconsistency, or to provide for the assumption by a successor person of the obligations of the Company under the Indenture, or to add additional covenants or surrender any right or power conferred on the Company, or to establish the form or terms of the Notes of any series, or to appoint a successor Trustee or provide for administration of the trust by more than one Trustee, or to add to, delete from or revise the conditions, limitations, and restrictions on the authorized amount, terms or purposes of issue, authentication and delivery of the Notes or to add any additional event of default, or to modify the provisions of the Indenture as shall be necessary to facilitate the defeasance and discharge of the Notes as shall not adversely affect any Holders, or to secure the Notes, or to make provisions with respect to exchange rights of Holders, or to make any change that does not adversely affect the rights of any Holder.
Subject to certain conditions, the Company at any time may terminate some or all of its obligations and the obligations of the Guarantor under the Notes and the Indenture if the Company deposits with the Trustee money or U.S. Government Obligations for the payment of principal, premium, if any, and interest on the Notes to the Maturity Date.
If money for the payment of principal or interest remains unclaimed for two years, the Trustee or Paying Agent shall pay the money back to the Company at its request unless an abandoned property law designates another Person. After any such payment, Holders entitled to the money must look only to the Company and not to the Trustee for payment.
A-1(ii)-6
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and premium, if any, and interest on this Note at the place, at the respective times, at the rate, and in the coin or currency herein prescribed.
No director, officer, employee or stockholder, as such, of the Company or the Guarantor shall have any liability for any obligations of the Company under this Note or the Indenture or the obligations of the Guarantor under the Indenture, as applicable, or for any claim based on, in respect of or by reason of such obligations or their creation. Each Holder, by accepting this Note, waives and releases all such liability. The waiver and release are part of the consideration for the issue of this Note.
This Note and the Indenture shall be governed by and construed in accordance with the law of the State of New York applicable to agreements made or instruments entered into and, in each case, performed in said state.
Ownership of this Note shall be proved by the register for the Notes kept by the Registrar. The Company, the Trustee and any agent of the Company may treat the Person in whose name a Note is registered as the absolute owner thereof for all purposes.
Pursuant to a recommendation promulgated by the Committee on Uniform Securities Identification Procedures ("CUSIP"), the Company has caused a CUSIP number to be printed on this Note and has directed the Trustee to use the CUSIP number as a convenience to Holders. No representation is made as to the correctness of such numbers and reliance may be placed only on the other identification numbers printed on this Note.
Terms used herein without definition that are defined in the Indenture shall have the meanings assigned to them in the Indenture.
Unless the Certificate of Authentication hereon has been executed by the Trustee under the Indenture referred to herein by the manual, facsimile or electronic signature of one of its authorized officers, or on behalf of the Trustee by the manual, facsimile or electronic signature of an authorized officer of the Trustee's authenticating agent, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
[Remainder of Page Intentionally Left Blank]
A-1(ii)-7
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed, manually or by facsimile.
Date: June 20, 2023
| COX COMMUNICATIONS, INC. | ||
| By: | ||
| Name: Perley McBride | ||
| Title: Executive Vice President and Chief Financial Officer | ||
| By: | ||
| Name: Charles L. Odom | ||
| Title: Vice President and Treasurer | ||
[Signature Page to Global Note]
CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated therein referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
as Trustee
| By: | ||
| Authorized Signatory | ||
| Dated: | ||
[Signature Page to Global Note]
ASSIGNMENT FORM
| FOR VALUE RECEIVED, the undersigned hereby sell(s) assign(s) and transfer(s) unto | |
| Please insert social security number 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 ___________attorney to transfer said Note of Cox Communications, Inc. on the books of Cox Communications, Inc. 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 this Note in every particular without alteration or enlargement or any change whatsoever. The Signature must be guaranteed by an "eligible guarantor institution meeting the requirements of the Registrar, which requirements include memberships or participation in the Security Transfer Agent Medallion Program ("STAMP") or such other "signature guarantee program" as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934.
EXHIBIT A-2(i)
[FORM OF FACE OF SECURITY]
[TRANSFER RESTRICTION LEGEND]
[THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS A NON-U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH THE LAWS APPLICABLE TO SUCH PURCHASER IN THE JURISDICTION IN WHICH SUCH PURCHASE IS MADE AND (2) AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE RESTRICTION TERMINATION DATE") THAT IS 40 DAYS AFTER THE LATEST OF THE ISSUE DATE HEREOF, THE ORIGINAL ISSUE DATE OF ANY ADDITIONAL NOTES (AS DEFINED IN THE INDENTURE GOVERNING THIS SECURITY) AND THE DATE ON WHICH THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) WAS FIRST OFFERED TO PERSONS OTHER THAN DISTRIBUTORS (AS DEFINED IN RULE 902 OF REGULATION S) IN RELIANCE ON REGULATION S, ONLY (A) TO THE COMPANY, THE GUARANTOR OR ANY SUBSIDIARY THEREOF, (B) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH THE LAWS APPLICABLE TO IT IN THE JURISDICTION IN WHICH SUCH PURCHASE IS MADE, (D) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S, OR REGISTRAR'S, AS APPLICABLE, RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (C) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE FOREGOING CASES, A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE OR REGISTRAR. THIS LEGEND WILL BE REMOVED UPON THE WRITTEN REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE. BY ITS ACQUISITION HEREOF, THE HOLDER HEREOF REPRESENTS THAT IT IS NOT A U.S. PERSON NOR IS IT PURCHASING FOR THE ACCOUNT OF A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT.
A-2(i)-1
THIS GLOBAL NOTE IS A TEMPORARY GLOBAL NOTE FOR PURPOSES OF REGULATION S UNDER THE SECURITIES ACT. NEITHER THIS TEMPORARY GLOBAL NOTE NOR ANY INTEREST HEREIN MAY BE OFFERED, SOLD OR DELIVERED, EXCEPT AS PERMITTED UNDER THE INDENTURE REFERRED TO BELOW.]
[GLOBAL NOTES LEGEND]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON 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.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS, IN WHOLE BUT NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN ARTICLE TWO OF THE TWENTIETH SUPPLEMENTAL INDENTURE REFERRED TO ON THE REVERSE HEREOF.]
A-2(i)-2
| No. R- | PRINCIPAL AMOUNT | |
| CUSIP No. U22018 BA9 | $ |
COX COMMUNICATIONS, INC.
5.450% Notes due 2028
COX COMMUNICATIONS, INC., a Delaware corporation (hereinafter called the "Company," which term includes any successor corporation under the Indenture referred to below), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of [ ] ($ ) on September 15, 2028 (the "Maturity Date"), unless previously redeemed, and to pay interest thereon from June 20, 2023 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, payable semiannually on March 15 and September 15 of each year (each, an "Interest Payment Date"), commencing September 15, 2023 at the rate of 5.450% per annum, until the principal hereof is paid or duly made available for payment. Interest shall be computed on the basis of a 360-day year of twelve 30-day months. The interest so payable and punctually paid or duly provided for on any Interest Payment Date will, as provided in the Indenture, be paid to the Person in whose name this Note (or one or more predecessor securities) is registered at the close of business on the regular record date for such interest, which shall be March 1 or September 1 (whether or not a Business Day), as the case may be, immediately preceding such Interest Payment Date. Any such interest which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date shall forthwith cease to be payable to the registered Holder hereof on the relevant regular record date by virtue of having been such Holder, and may be paid to the Person in whose name this Note (or one or more predecessor securities) is registered at the close of business on a subsequent special record date (which shall be not more than 15 days and not less than 10 days before the payment date) for the payment of such defaulted interest to be fixed by the Trustee, notice whereof shall be given to the Holders of Notes of this series not less than 10 days prior to such special record date, or may be paid at any time in any other lawful manner, all as more fully provided in such Indenture. If any Interest Payment Date, Redemption Date or the Maturity Date falls on a day that is not a Business Day, the required payment shall be made on the next Business Day as if it were made on the date such payment was due and no interest shall accrue on the amount so payable for the period from and after such Interest Payment Date, Redemption Date or the Maturity Date, as the case may be, to such next Business Day. Payments of principal, premium, if any, and interest hereunder shall be made in such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts and shall be made immediately available to the Holder (as defined below) hereof.
This Note is one of the duly authorized series of Debt Securities of the Company, designated as the Company's "5.450% Notes due 2028" (the "Notes"), initially limited to an aggregate principal amount of $500,000,000, all issued or to be issued under and pursuant to an Indenture dated as of June 27, 1995 (the "Original Indenture"), as supplemented by the Twentieth Supplemental Indenture dated as of June 20, 2023 (the "Twentieth Supplemental Indenture" and, together with the Original Indenture, the "Indenture"), duly executed and delivered by the Company and Cox Enterprises, Inc., a Delaware corporation, as guarantor (the "Guarantor"), to The Bank of New York Mellon Trust Company, N.A, as trustee (hereinafter referred to as the "Trustee"), to which Indenture and all indentures supplemental thereto reference is hereby made for a description of the rights, limitation of rights, obligations, duties and immunities thereunder of the Trustee, the Company, the Guarantor and the Holders (the words "Holders" or "Holder" meaning the registered holders or registered holder of the Notes).
A-2(i)-3
The Notes and the obligations of the Company thereunder and under the Indenture shall be fully and unconditionally guaranteed on a senior unsecured basis by the Guarantor (the "Guarantee"). The Guarantee will be automatically and unconditionally released and discharged upon the occurrence of certain events without any action required on the part of the Trustee or any Holder in accordance with the terms of the Twentieth Supplemental Indenture.
Prior to the Par Call Date, this Note will be redeemable at the option of the Company, in whole or in part, at any time and from time to time, at a Redemption Price (expressed as a percentage of principal amount and rounded to three decimal places) equal to the greater of (i) (a) the sum of the present values of the remaining scheduled payments of principal and interest thereon discounted to the Redemption Date (assuming this Note matured on the Par Call Date) on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as defined below) plus 25 basis points, less (b) interest accrued to the Redemption Date, and (ii) 100% of the principal amount of this Note to be redeemed, plus,jn either case, accrued and unpaid interest thereon to the Redemption Date. On or after the Par Call Date, this Note will be redeemable at the option of the Company, in whole or in part, at any time and from time to time, at a Redemption Price equal to 100% of the principal amount of this Note being redeemed, plus accrued and unpaid interest thereon to the Redemption Date.
"Par Call Date" means August 15, 2028.
"Treasury Rate" means, with respect to any Redemption Date, the yield determined by the Company in accordance with the following paragraphs.
The Treasury Rate shall be determined by the Company after 4:15 p.m., New York City time (or after such time as yields on U.S. government securities are posted daily by the Board of Governors of the Federal Reserve System), on the third business day preceding the Redemption Date based upon the yield or yields for the most recent day that appear after such time on such day in the most recent statistical release published by the Board of Governors of the Federal Reserve System designated as "Selected Interest Rates (Daily) — H.15" (or any successor designation or publication) (H.15) under the caption "U.S. government securities – Treasury constant maturities – Nominal" (or any successor caption or heading). In determining the Treasury Rate, the Company shall select, as applicable: (i) the yield for the Treasury constant maturity on H.15 exactly equal to the period from the Redemption Date to the Par Call Date (the Remaining Life); or (ii) if there is no such Treasury constant maturity on H.15 exactly equal to the Remaining Life, the two yields – one yield corresponding to the Treasury constant maturity on H.15 immediately shorter than and one yield corresponding to the Treasury constant maturity on H.15 immediately longer than the Remaining Life — and shall interpolate to the Par Call Date on a straight-line basis (using the actual number of days) using such yields and rounding the result to three decimal places; or (iii) if there is no such Treasury constant maturity on H.15 shorter than or longer than the Remaining Life, the yield for the single Treasury constant maturity on H.15 closest to the Remaining Life. For purposes of this paragraph, the applicable Treasury constant maturity or maturities on H.15 shall be deemed to have a maturity date equal to the relevant number of months or years, as applicable, of such Treasury constant maturity from the Redemption Date.
A-2(i)-4
If on the third business day preceding the Redemption Date H.15 or any successor designation or publication is no longer published, the Company shall calculate the Treasury Rate based on the rate per annum equal to the semi-annual equivalent yield to maturity at 11:00 a.m., New York City time, on the second business day preceding such Redemption Date of the United States Treasury security maturing on, or with a maturity that is closest to, the Par Call Date, as applicable. If there is no United States Treasury security maturing on the Par Call Date but there are two or more United States Treasury securities with a maturity date equally distant from the Par Call Date, one with a maturity date preceding the Par Call Date and one with a maturity date following the Par Call Date, the Company shall select the United States Treasury security with a maturity date preceding the Par Call Date. If there are two or more United States Treasury securities maturing on the Par Call Date or two or more United States Treasury securities meeting the criteria of the preceding sentence, the Company shall select from among these two or more United States Treasury securities the United States Treasury security that is trading closest to par based upon the average of the bid and asked prices for such United States Treasury securities at 11:00 a.m., New York City time. In determining the Treasury Rate in accordance with the terms of this paragraph, the semi-annual yield to maturity of the applicable United States Treasury security shall be based upon the average of the bid and asked prices (expressed as a percentage of principal amount) at 11:00 a.m., New York City time, of such United States Treasury security, and rounded to three decimal places.
The Company's actions and determinations in determining the Redemption Price shall be conclusive and binding for all purposes, absent manifest error.
Notice of any redemption will be mailed or electronically delivered (or otherwise transmitted in accordance with the depositary's procedures) at least 10 days but not more than 60 days before the Redemption Date to each holder of notes to be redeemed.
In the case of a partial redemption, selection of this Note for redemption will be made pro rata, by lot or by such other method as the Trustee in its sole discretion deems appropriate and fair. No Note of a principal amount of $2,000 or less will be redeemed in part. If any Note is to be redeemed in part only, the notice of redemption that relates to this Note will state the portion of the principal amount of this Note to be redeemed. A new note in a principal amount equal to the unredeemed portion of this Note will be issued in the name of the holder of this Note upon surrender for cancellation of this Note. For so long as this Note is held by DTC (or another depositary), the redemption of this Note shall be done in accordance with the policies and procedures of the depositary.
Unless the Company defaults in payment of the Redemption Price, on and after the Redemption Date, interest will cease to accrue on this Note or portions thereof called for redemption.
If money sufficient to pay the Redemption Price and accrued and unpaid interest on the principal amount of this Note to be redeemed on the Redemption Date is deposited with the Trustee or Paying Agent on or before the Redemption Date and certain other conditions specified in the Indenture are satisfied, then on or after such date, interest will cease to accrue on the principal amount of this Note called for redemption.
Any notice of redemption may, at the Company's discretion, be subject to the satisfaction of one or more conditions precedent, and if such notice of redemption is conditioned upon the occurrence of one or more conditions precedent, such notice shall state the nature of such conditions precedent.
A-2(i)-5
Except as provided above, this Note is not redeemable by the Company prior to maturity.
This Note is not subject to any sinking fund.
Upon the occurrence of a Change of Control Repurchase Event, unless the Company has redeemed this Note or the Company has defeased this Security or satisfied and discharged this Note, the Holder of this Note shall have the right to require that the Company purchase all or a portion (such principal amount to be equal to $2,000 or integral multiples of $1,000 in excess thereof), of this Note at a purchase price in cash in an amount equal to 101% of the principal amount thereof, plus accrued but unpaid interest, if any, to, but not including, the date of purchase. Within 30 days following any Change of Control Repurchase Event, the Company shall deliver a notice to each Holder, in accordance with Section 401(b) of the Twentieth Supplemental Indenture, with a copy to the Trustee, which notice shall govern the terms of the Change of Control Offer. Notice of any redemption pursuant to the Change of Control Offer will be mailed or delivered electronically at least 15 days but not more than 60 days before the Redemption Date to the Holder hereof in accordance with the Twentieth Supplemental Indenture.
In case an Event of Default shall occur and be continuing, the principal hereof may be declared, and upon such declaration shall become, due and payable, in the manner, with the effect and subject to the conditions provided in the Indenture.
Subject to certain exceptions set forth in the Indenture, (i) the Indenture may be amended with respect to the Notes with the consent of the Holders of at least a majority in principal amount outstanding of the Notes and (ii) any default or noncompliance with any provisions applicable to the Notes may be waived with the consent of the Holders of a majority in principal amount outstanding of the Notes. Subject to certain exceptions set forth in the Indenture, without the consent of any Holder, the Company and the Trustee may amend the Indenture or the Notes to, among other things, cure any ambiguity, defect or inconsistency, or to provide for the assumption by a successor person of the obligations of the Company under the Indenture, or to add additional covenants or surrender any right or power conferred on the Company, or to establish the form or terms of the Notes of any series, or to appoint a successor Trustee or provide for administration of the trust by more than one Trustee, or to add to, delete from or revise the conditions, limitations, and restrictions on the authorized amount, terms or purposes of issue, authentication and delivery of the Notes or to add any additional event of default, or to modify the provisions of the Indenture as shall be necessary to facilitate the defeasance and discharge of the Notes as shall not adversely affect any Holders, or to secure the Notes, or to make provisions with respect to exchange rights of Holders, or to make any change that does not adversely affect the rights of any Holder.
Subject to certain conditions, the Company at any time may terminate some or all of its obligations and the obligations of the Guarantor under the Notes and the Indenture if the Company deposits with the Trustee money or U.S. Government Obligations for the payment of principal, premium, if any, and interest on the Notes to the Maturity Date.
If money for the payment of principal or interest remains unclaimed for two years, the Trustee or Paying Agent shall pay the money back to the Company at its request unless an abandoned property law designates another Person. After any such payment, Holders entitled to the money must look only to the Company and not to the Trustee for payment.
A-2(i)-6
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and premium, if any, and interest on this Note at the place, at the respective times, at the rate, and in the coin or currency herein prescribed.
No director, officer, employee or stockholder, as such, of the Company or the Guarantor shall have any liability for any obligations of the Company under this Note or the Indenture or the obligations of the Guarantor under the Indenture, as applicable, or for any claim based on, in respect of or by reason of such obligations or their creation. Each Holder, by accepting this Note, waives and releases all such liability. The waiver and release are part of the consideration for the issue of this Note.
This Note and the Indenture shall be governed by and construed in accordance with the law of the State of New York applicable to agreements made or instruments entered into and, in each case, performed in said state.
Ownership of this Note shall be proved by the register for the Notes kept by the Registrar. The Company, the Trustee and any agent of the Company may treat the Person in whose name a Note is registered as the absolute owner thereof for all purposes.
Pursuant to a recommendation promulgated by the Committee on Uniform Securities Identification Procedures ("CUSIP"), the Company has caused a CUSIP number to be printed on this Note and has directed the Trustee to use the CUSIP number as a convenience to Holders. No representation is made as to the correctness of such numbers and reliance may be placed only on the other identification numbers printed on this Note.
Terms used herein without definition that are defined in the Indenture shall have the meanings assigned to them in the Indenture.
Unless the Certificate of Authentication hereon has been executed by the Trustee under the Indenture referred to herein by the manual, facsimile or electronic signature of one of its authorized officers, or on behalf of the Trustee by the manual, facsimile or electronic signature of an authorized officer of the Trustee's authenticating agent, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
[Remainder of Page Intentionally Left Blank]
A-2(i)-7
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed, manually or by facsimile.
Date: June 20, 2023
| COX COMMUNICATIONS, INC. | ||
| By: | ||
| Name: Perley McBride | ||
| Title: Executive Vice President and Chief Financial Officer | ||
| By: | ||
| Name: Charles L. Odom | ||
| Title: Vice President and Treasurer | ||
[Signature Page to Global Note]
CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated therein referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
as Trustee
| By: | ||
| Authorized Signatory | ||
| Dated: | ||
[Signature Page to Global Note]
ASSIGNMENT FORM
| FOR VALUE RECEIVED, the undersigned hereby sell(s) assign(s) and transfer(s) unto | |
| Please insert social security number 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_________________attorney to transfer said Note of Cox Communications, Inc. on the books of Cox Communications, Inc. 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 this Note in every particular without alteration or enlargement or any change whatsoever. The Signature must be guaranteed by an "eligible guarantor institution meeting the requirements of the Registrar, which requirements include memberships or participation in the Security Transfer Agent Medallion Program ("STAMP") or such other "signature guarantee program" as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934.
EXHIBIT A-2(ii)
[FORM OF FACE OF SECURITY]
[TRANSFER RESTRICTION LEGEND]
[THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS A NON-U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH THE LAWS APPLICABLE TO SUCH PURCHASER IN THE JURISDICTION IN WHICH SUCH PURCHASE IS MADE AND (2) AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE RESTRICTION TERMINATION DATE") THAT IS 40 DAYS AFTER THE LATEST OF THE ISSUE DATE HEREOF, THE ORIGINAL ISSUE DATE OF ANY ADDITIONAL NOTES (AS DEFINED IN THE INDENTURE GOVERNING THIS SECURITY) AND THE DATE ON WHICH THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) WAS FIRST OFFERED TO PERSONS OTHER THAN DISTRIBUTORS (AS DEFINED IN RULE 902 OF REGULATION S) IN RELIANCE ON REGULATION S, ONLY (A) TO THE COMPANY, THE GUARANTOR OR ANY SUBSIDIARY THEREOF, (B) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH THE LAWS APPLICABLE TO IT IN THE JURISDICTION IN WHICH SUCH PURCHASE IS MADE, (D) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S, OR REGISTRAR'S, AS APPLICABLE, RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (C) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE FOREGOING CASES, A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE OR REGISTRAR. THIS LEGEND WILL BE REMOVED UPON THE WRITTEN REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE. BY ITS ACQUISITION HEREOF, THE HOLDER HEREOF REPRESENTS THAT IT IS NOT A U.S. PERSON NOR IS IT PURCHASING FOR THE ACCOUNT OF A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT.
A-2(ii)-1
THIS GLOBAL NOTE IS A TEMPORARY GLOBAL NOTE FOR PURPOSES OF REGULATION S UNDER THE SECURITIES ACT. NEITHER THIS TEMPORARY GLOBAL NOTE NOR ANY INTEREST HEREIN MAY BE OFFERED, SOLD OR DELIVERED, EXCEPT AS PERMITTED UNDER THE INDENTURE REFERRED TO BELOW.]
[GLOBAL NOTES LEGEND]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON 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.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS, IN WHOLE BUT NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN ARTICLE TWO OF THE TWENTIETH SUPPLEMENTAL INDENTURE REFERRED TO ON THE REVERSE HEREOF.]
A-2(ii)-2
| No. R- | PRINCIPAL AMOUNT | |
| CUSIP No. U22018 BB7 | $ |
COX COMMUNICATIONS, INC.
5.700% Notes due 2033
COX COMMUNICATIONS, INC., a Delaware corporation (hereinafter called the "Company," which term includes any successor corporation under the Indenture referred to below), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of [ ] ($ ) on June 15, 2033 (the "Maturity Date"), unless previously redeemed, and to pay interest thereon from June 20, 2023 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, payable semiannually on June 15 and December 15 of each year (each, an "Interest Payment Date"), commencing December 15, 2023 at the rate of 5.700% per annum, until the principal hereof is paid or duly made available for payment. Interest shall be computed on the basis of a 360-day year of twelve 30-day months. The interest so payable and punctually paid or duly provided for on any Interest Payment Date will, as provided in the Indenture, be paid to the Person in whose name this Note (or one or more predecessor securities) is registered at the close of business on the regular record date for such interest, which shall be June 1 or December 1 (whether or not a Business Day), as the case may be, immediately preceding such Interest Payment Date. Any such interest which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date shall forthwith cease to be payable to the registered Holder hereof on the relevant regular record date by virtue of having been such Holder, and may be paid to the Person in whose name this Note (or one or more predecessor securities) is registered at the close of business on a subsequent special record date (which shall be not more than 15 days and not less than 10 days before the payment date) for the payment of such defaulted interest to be fixed by the Trustee, notice whereof shall be given to the Holders of Notes of this series not less than 10 days prior to such special record date, or may be paid at any time in any other lawful manner, all as more fully provided in such Indenture. If any Interest Payment Date, Redemption Date or the Maturity Date falls on a day that is not a Business Day, the required payment shall be made on the next Business Day as if it were made on the date such payment was due and no interest shall accrue on the amount so payable for the period from and after such Interest Payment Date, Redemption Date or the Maturity Date, as the case may be, to such next Business Day. Payments of principal, premium, if any, and interest hereunder shall be made in such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts and shall be made immediately available to the Holder (as defined below) hereof.
This Note is one of the duly authorized series of Debt Securities of the Company, designated as the Company's "5.700% Notes due 2033" (the "Notes"), initially limited to an aggregate principal amount of $500,000,000, all issued or to be issued under and pursuant to an Indenture dated as of June 27, 1995 (the "Original Indenture"), as supplemented by the Twentieth Supplemental Indenture dated as of June 20, 2023 (the "Twentieth Supplemental Indenture" and, together with the Original Indenture, the "Indenture"), duly executed and delivered by the Company and Cox Enterprises, Inc., a Delaware corporation, as guarantor (the "Guarantor"), to The Bank of New York Mellon Trust Company, N.A, as trustee (hereinafter referred to as the "Trustee"), to which Indenture and all indentures supplemental thereto reference is hereby made for a description of the rights, limitation of rights, obligations, duties and immunities thereunder of the Trustee, the Company, the Guarantor and the Holders (the words "Holders" or "Holder" meaning the registered holders or registered holder of the Notes).
A-2(ii)-3
The Notes and the obligations of the Company thereunder and under the Indenture shall be fully and unconditionally guaranteed on a senior unsecured basis by the Guarantor (the "Guarantee"). The Guarantee will be automatically and unconditionally released and discharged upon the occurrence of certain events without any action required on the part of the Trustee or any Holder in accordance with the terms of the Twentieth Supplemental Indenture.
Prior to the Par Call Date, this Note will be redeemable at the option of the Company, in whole or in part, at any time and from time to time, at a Redemption Price (expressed as a percentage of principal amount and rounded to three decimal places) equal to the greater of (i) (a) the sum of the present values of the remaining scheduled payments of principal and interest thereon discounted to the Redemption Date (assuming this Note matured on the Par Call Date) on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as defined below) plus 30 basis points, less (b) interest accrued to the Redemption Date, and (ii) 100% of the principal amount of this Note to be redeemed, plus, in either case, accrued and unpaid interest thereon to the Redemption Date. On or after the Par Call Date, this Note will be redeemable at the option of the Company, in whole or in part, at any time and from time to time, at a Redemption Price equal to 100% of the principal amount of this Note being redeemed, plus accrued and unpaid interest thereon to the Redemption Date.
"Par Call Date" means March 15, 2033.
"Treasury Rate" means, with respect to any Redemption Date, the yield determined by the Company in accordance with the following paragraphs.
The Treasury Rate shall be determined by the Company after 4:15 p.m., New York City time (or after such time as yields on U.S. government securities are posted daily by the Board of Governors of the Federal Reserve System), on the third business day preceding the Redemption Date based upon the yield or yields for the most recent day that appear after such time on such day in the most recent statistical release published by the Board of Governors of the Federal Reserve System designated as "Selected Interest Rates (Daily) — H.15" (or any successor designation or publication) (H.15) under the caption "U.S. government securities – Treasury constant maturities – Nominal" (or any successor caption or heading). In determining the Treasury Rate, the Company shall select, as applicable: (i) the yield for the Treasury constant maturity on H.15 exactly equal to the period from the Redemption Date to the Par Call Date (the Remaining Life); or (ii) if there is no such Treasury constant maturity on H.15 exactly equal to the Remaining Life, the two yields one yield corresponding to the Treasury constant maturity on H.15 immediately shorter than and one yield corresponding to the Treasury constant maturity on H.15 immediately longer than the Remaining Life — and shall interpolate to the Par Call Date on a straight-line basis (using the actual number of days) using such yields and rounding the result to three decimal places; or (iii) if there is no such Treasury constant maturity on H.15 shorter than or longer than the Remaining Life, the yield for the single Treasury constant maturity on H.15 closest to the Remaining Life. For purposes of this paragraph, the applicable Treasury constant maturity or maturities on H.15 shall be deemed to have a maturity date equal to the relevant number of months or years, as applicable, of such Treasury constant maturity from the Redemption Date.
A-2(ii)-4
If on the third business day preceding the Redemption Date H.15 or any successor designation or publication is no longer published, the Company shall calculate the Treasury Rate based on the rate per annum equal to the semi-annual equivalent yield to maturity at 11:00 a.m., New York City time, on the second business day preceding such Redemption Date of the United States Treasury security maturing on, or with a maturity that is closest to, the Par Call Date, as applicable. If there is no United States Treasury security maturing on the Par Call Date but there are two or more United States Treasury securities with a maturity date equally distant from the Par Call Date, one with a maturity date preceding the Par Call Date and one with a maturity date following the Par Call Date, the Company shall select the United States Treasury security with a maturity date preceding the Par Call Date. If there are two or more United States Treasury securities maturing on the Par Call Date or two or more United States Treasury securities meeting the criteria of the preceding sentence, the Company shall select from among these two or more United States Treasury securities the United States Treasury security that is trading closest to par based upon the average of the bid and asked prices for such United States Treasury securities at 11:00 a.m., New York City time. In determining the Treasury Rate in accordance with the terms of this paragraph, the semi-annual yield to maturity of the applicable United States Treasury security shall be based upon the average of the bid and asked prices (expressed as a percentage of principal amount) at 11:00 a.m., New York City time, of such United States Treasury security, and rounded to three decimal places.
The Company's actions and determinations in determining the Redemption Price shall be conclusive and binding for all purposes, absent manifest error.
Notice of any redemption will be mailed or electronically delivered (or otherwise transmitted in accordance with the depositary's procedures) at least 10 days but not more than 60 days before the Redemption Date to each holder of notes to be redeemed.
In the case of a partial redemption, selection of this Note for redemption will be made pro rata, by lot or by such other method as the Trustee in its sole discretion deems appropriate and fair. No Note of a principal amount of $2,000 or less will be redeemed in part. If any Note is to be redeemed in part only, the notice of redemption that relates to this Note will state the portion of the principal amount of this Note to be redeemed. A new note in a principal amount equal to the unredeemed portion of this Note will be issued in the name of the holder of this Note upon surrender for cancellation of this Note. For so long as this Note is held by DTC (or another depositary), the redemption of this Note shall be done in accordance with the policies and procedures of the depositary.
Unless the Company defaults in payment of the Redemption Price, on and after the Redemption Date, interest will cease to accrue on this Note or portions thereof called for redemption.
If money sufficient to pay the Redemption Price and accrued and unpaid interest on the principal amount of this Note to be redeemed on the Redemption Date is deposited with the Trustee or Paying Agent on or before the Redemption Date and certain other conditions specified in the Indenture are satisfied, then on or after such date, interest will cease to accrue on the principal amount of this Note called for redemption.
Any notice of redemption may, at the Company's discretion, be subject to the satisfaction of one or more conditions precedent, and if such notice of redemption is conditioned upon the occurrence of one or more conditions precedent, such notice shall state the nature of such conditions precedent.
A-2(ii)-5
Except as provided above, this Note is not redeemable by the Company prior to maturity.
This Note is not subject to any sinking fund.
Upon the occurrence of a Change of Control Repurchase Event, unless the Company has redeemed this Note or the Company has defeased this Security or satisfied and discharged this Note, the Holder of this Note shall have the right to require that the Company purchase all or a portion (such principal amount to be equal to $2,000 or integral multiples of $1,000 in excess thereof), of this Note at a purchase price in cash in an amount equal to 101% of the principal amount thereof, plus accrued but unpaid interest, if any, to, but not including, the date of purchase. Within 30 days following any Change of Control Repurchase Event, the Company shall deliver a notice to each Holder, in accordance with Section 401(b) of the Twentieth Supplemental Indenture, with a copy to the Trustee, which notice shall govern the terms of the Change of Control Offer. Notice of any redemption pursuant to the Change of Control Offer will be mailed or delivered electronically at least 15 days but not more than 60 days before the Redemption Date to the Holder hereof in accordance with the Twentieth Supplemental Indenture.
In case an Event of Default shall occur and be continuing, the principal hereof may be declared, and upon such declaration shall become, due and payable, in the manner, with the effect and subject to the conditions provided in the Indenture.
Subject to certain exceptions set forth in the Indenture, (i) the Indenture may be amended with respect to the Notes with the consent of the Holders of at least a majority in principal amount outstanding of the Notes and (ii) any default or noncompliance with any provisions applicable to the Notes may be waived with the consent of the Holders of a majority in principal amount outstanding of the Notes. Subject to certain exceptions set forth in the Indenture, without the consent of any Holder, the Company and the Trustee may amend the Indenture or the Notes to, among other things, cure any ambiguity, defect or inconsistency, or to provide for the assumption by a successor person of the obligations of the Company under the Indenture, or to add additional covenants or surrender any right or power conferred on the Company, or to establish the form or terms of the Notes of any series, or to appoint a successor Trustee or provide for administration of the trust by more than one Trustee, or to add to, delete from or revise the conditions, limitations, and restrictions on the authorized amount, terms or purposes of issue, authentication and delivery of the Notes or to add any additional event of default, or to modify the provisions of the Indenture as shall be necessary to facilitate the defeasance and discharge of the Notes as shall not adversely affect any Holders, or to secure the Notes, or to make provisions with respect to exchange rights of Holders, or to make any change that does not adversely affect the rights of any Holder.
Subject to certain conditions, the Company at any time may terminate some or all of its obligations and the obligations of the Guarantor under the Notes and the Indenture if the Company deposits with the Trustee money or U.S. Government Obligations for the payment of principal, premium, if any, and interest on the Notes to the Maturity Date.
If money for the payment of principal or interest remains unclaimed for two years, the Trustee or Paying Agent shall pay the money back to the Company at its request unless an abandoned property law designates another Person. After any such payment, Holders entitled to the money must look only to the Company and not to the Trustee for payment.
A-2(ii)-6
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and premium, if any, and interest on this Note at the place, at the respective times, at the rate, and in the coin or currency herein prescribed.
No director, officer, employee or stockholder, as such, of the Company or the Guarantor shall have any liability for any obligations of the Company under this Note or the Indenture or the obligations of the Guarantor under the Indenture, as applicable, or for any claim based on, in respect of or by reason of such obligations or their creation. Each Holder, by accepting this Note, waives and releases all such liability. The waiver and release are part of the consideration for the issue of this Note.
This Note and the Indenture shall be governed by and construed in accordance with the law of the State of New York applicable to agreements made or instruments entered into and, in each case, performed in said state.
Ownership of this Note shall be proved by the register for the Notes kept by the Registrar. The Company, the Trustee and any agent of the Company may treat the Person in whose name a Note is registered as the absolute owner thereof for all purposes.
Pursuant to a recommendation promulgated by the Committee on Uniform Securities Identification Procedures ("CUSIP"), the Company has caused a CUSIP number to be printed on this Note and has directed the Trustee to use the CUSIP number as a convenience to Holders. No representation is made as to the correctness of such numbers and reliance may be placed only on the other identification numbers printed on this Note.
Terms used herein without definition that are defined in the Indenture shall have the meanings assigned to them in the Indenture.
Unless the Certificate of Authentication hereon has been executed by the Trustee under the Indenture referred to herein by the manual, facsimile or electronic signature of one of its authorized officers, or on behalf of the Trustee by the manual, facsimile or electronic signature of an authorized officer of the Trustee's authenticating agent, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
[Remainder of Page Intentionally Left Blank]
A-2(ii)-7
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed, manually or by facsimile.
Date: June 20, 2023
| COX COMMUNICATIONS, INC. | ||
| By: | ||
| Name: Perley McBride | ||
| Title: Executive Vice President and Chief Financial Officer | ||
| By: | ||
| Name: Charles L. Odom | ||
| Title: Vice President and Treasurer | ||
[Signature Page to Global Note]
CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated therein referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
as Trustee
| By: | ||
| Authorized Signatory | ||
| Dated: | ||
[Signature Page to Global Note]
ASSIGNMENT FORM
| FOR VALUE RECEIVED, the undersigned hereby sell(s) assign(s) and transfer(s) unto | |
| Please insert social security number 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 ______________________attorney to transfer said Note of Cox Communications, Inc. on the books of Cox Communications, Inc. 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 this Note in every particular without alteration or enlargement or any change whatsoever. The Signature must be guaranteed by an "eligible guarantor institution meeting the requirements of the Registrar, which requirements include memberships or participation in the Security Transfer Agent Medallion Program ("STAMP") or such other "signature guarantee program" as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934.
EXHIBIT B-1
Transfer Certificate
In connection with a transfer of any of the principal amount of the $_____________principal amount of the_____% Notes due 20_____ (the "Notes") of Cox Communications, Inc. (the "Company") within the period prior to the expiration of the holding period applicable to the sales thereof under Rule 144 under the Securities Act of 1933, as amended (the "Securities Act") (or any successor provision), the undersigned registered owner of this Note hereby certifies with respect to
$principal amount of the above-captioned securities presented or surrendered on the date hereof (the "Surrendered Notes") for registration of transfer, or for exchange where the securities deliverable upon such exchange are to be registered in a name other than that of the undersigned registered owner (each such transaction being a "transfer"), that such transfer complies with the restrictive legend set forth on the face of the Surrendered Notes for the reason checked below:
| ¨ | The transfer of the Surrendered Notes is made to the Company, Cox Enterprises, Inc. or any Subsidiary thereof; |
| ¨ | The transfer of the Surrendered Notes complies with Rule 144A under the Securities Act; |
| ¨ | The transfer of the Surrendered Notes is pursuant to a registration statement which has been declared effective under the Securities Act; |
| ¨ | The transfer of the Surrendered Notes is pursuant to an offer and sale to a non-U.S. person that occurs outside the United States within the meaning of Regulation S under the Securities Act and in accordance with the laws applicable to it in the jurisdiction in which such purchase is made; |
| ¨ | The transfer of the Surrendered Notes is pursuant to another available exemption from the registration requirements of the Securities Act. |
and unless the box below is checked, the undersigned confirms that, to the undersigned's knowledge, such Notes are not being transferred to an "affiliate" of the Company as defined in Rule 144 under the Securities Act (an "Affiliate").
| ¨ | The transferee is an Affiliate of the Company. |
| DATE: | |||
| Signature(s) | |||
(If the registered owner is a corporation, partnership
or fiduciary, the title of the Person signing on behalf
of such registered owner must be stated.)
B-1-1
EXHIBIT B-2
Form of Letter to be Delivered by Accredited Investors
Cox Communications, Inc.
6205-B Peachtree Dunwoody Road, NE
Atlanta, Georgia 30328
Attention: Treasurer
The Bank of New York Mellon Trust Company, N.A., as Registrar
500 Ross Street, 12th Floor
Pittsburgh, PA 15262
Attention: Corporate Trust Office
Dear Sirs:
We are delivering this letter in connection with the proposed transfer of $ __________ principal amount of the _________% Notes due 20__ _____(the "Notes") of Cox Communications, Inc. (the "Company").
We hereby confirm that:
(i) we are an "accredited investor" within the meaning of Rule 501(a)(l), (2), (3) or (7) of Regulation D under the Securities Act of 1933, as amended (the "Securities Act"), or an entity in which all of the equity owners are accredited investors within the meaning of Rule 50 l(a)(l), (2), (3) or (7) of Regulation D under the Securities Act (an "Institutional Accredited Investor");
(ii) (A) the purchase of Notes by us is for our own account or for the account of one or more other Institutional Accredited Investors or as fiduciary for the account of one or more trusts, each of which is an "accredited investor" within the meaning of Rule 501(a)(7) under the Securities Act and for each of which we exercise sole investment discretion or (B) we are a "bank," within the meaning of Section 3(a)(2) of the Securities Act, or a "savings and loan association" or other institution described in Section 3(a)(5)(A) of the Securities Act that is acquiring Notes as fiduciary for the account of one or more institutions for which we exercise sole investment discretion;
(iii) we will acquire Notes having a minimum principal amount of not less than $100,000 for our own account or for any separate account for which we are acting;
(iv) we have such knowledge and experience in financial and business matters that we are capable of evaluating the merits and risks of purchasing Notes; and
(v) we are not acquiring Notes with a view to distribution thereof or with any present intention of offering or selling Notes, except as permitted below; provided that the disposition of our property and property of any accounts for which we are acting as fiduciary shall remain at all times within our control.
B-2-1
We understand that the Notes were originally offered and sold in a transaction not involving any public offering within the United States within the meaning of the Securities Act and that the Notes have not been registered under the Securities Act, and we agree, on our own behalf and on behalf of each account for which we acquire any Notes, that we will offer, sell or otherwise transfer such Notes, or any beneficial interest therein, prior to the date (the "Resale Restriction Termination Date") that is (a) one year after the latest of (x) the original issue date of the Notes, (y) the original issue date of any Additional Notes (as defined in the indenture governing the Notes) and (z) the last date on which the Issuer or any of its Affiliates were the owner of such Notes (or any predecessor thereof), and (b) such later date, if any, as may be required by applicable laws only:
(1) to the Company or any Subsidiary thereof, or
(2) for as long as the Notes are eligible for resale pursuant to Rule 144A, to a person we reasonably believe is a "qualified institutional buyer" (as defined in Rule 144A under the Securities Act) that purchases for its own account or for the account of a qualified institutional buyer to which notice is given that the transfer is being made in reliance on Rule 144A, or
(3) pursuant to offers and sales to non-U.S. persons that occur outside the United States within the meaning of Regulation S under the Securities Act and in accordance with the laws applicable to us in the jurisdiction in which such purchase is made, or
(4) pursuant to a registration statement which has been declared effective under the Securities Act, or
(5) pursuant to another available exemption from the registration requirements of the Securities Act.
We acknowledge that the Company, others and you will rely upon our confirmations, acknowledgments and agreements set forth herein, and we agree to notify you promptly in writing if any of our representations or warranties herein ceases to be accurate and complete.
THIS LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK.
| (Name of Purchaser) | ||
| By: | ||
| Name: | ||
| Title: | ||
| Address: | ||
B-2-2
Exhibit 4.18
COX COMMUNICATIONS, INC.,
as Issuer
COX ENTERPRISES, INC.,
as Guarantor
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
as Trustee
TWENTY-FIRST SUPPLEMENTAL INDENTURE
Dated as of January 19, 2024
Supplement to Indenture
Dated as of June 27, 1995
Creating a series of Debt Securities designated
5.800% Notes due 2053
TWENTY-FIRST SUPPLEMENTAL INDENTURE, dated as of the 19th day of January, 2024, among COX COMMUNICATIONS, INC., a corporation existing under the laws of the State of Delaware, having its principal executive office located at 6205-B Peachtree Dunwoody Road, NE, Atlanta, Georgia 30328 (the “Company”), COX ENTERPRISES, INC., a corporation existing under the laws of the State of Delaware, having its principal executive office located at 6205-A Peachtree Dunwoody Road, NE, Atlanta, Georgia 30328 (the “Guarantor”), and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., a national banking association, having a designated corporate trust office located at 500 Ross Street, 12th Floor, Pittsburgh, Pennsylvania 15262, as trustee (the “Trustee”);
WHEREAS, the Company has heretofore executed and delivered to the Trustee an Indenture, dated as of June 27, 1995 (the “Original Indenture” and, as amended by this Supplemental Indenture, the “Indenture”), providing for the issuance by the Company from time to time of its debentures, notes, bonds or other evidences of indebtedness (in the Original Indenture and herein called the “Debt Securities”), unlimited as to principal amount, to be issued in one or more series;
WHEREAS, the Company, in the exercise of the power and authority conferred upon and reserved to it under the provisions of the Original Indenture and pursuant to appropriate resolutions of the Company’s Board of Directors, and the Guarantor, pursuant to appropriate resolutions of the Guarantor’s Board of Directors, have duly determined to make, execute and deliver to the Trustee this Supplemental Indenture to the Original Indenture in order to establish the form and terms of, and to provide for the creation and issuance of, a new series of Debt Securities designated as the “5.800% Notes due 2053” in the initial aggregate principal amount of $850,000,000 (the “Notes”) and (ii) to establish the terms of, and to provide for the grant of, full and unconditional guarantee (the “Guarantee”) by the Guarantor of the Company’s obligations with respect to the Notes and the Company’s obligations under the Indenture in respect thereof;
WHEREAS, Section 9.01 of the Original Indenture provides, among other things, that the Company and the Trustee, at any time and from time to time, without the consent of any Holders, may enter into an indenture supplemental to the Original Indenture to establish the form or terms of Debt Securities of any series as permitted by Sections 2.01 and 2.03 of the Original Indenture and to add guarantees with respect to the Debt Securities of any series;
WHEREAS, all things necessary to make the Notes, when executed by the Company and authenticated and delivered by the Trustee and issued upon the terms and subject to the conditions hereinafter and in the Original Indenture set forth against payment therefor, the valid, binding and legal obligations of the Company and to make this Supplemental Indenture a valid, binding and legal agreement of the Company and the Guarantor, have been done;
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH that, in order to establish the form and terms of the series of Debt Securities designated as the “5.800% Notes due 2053” and to provide for the Guarantee in respect thereof and for and in consideration of the premises and of the covenants contained in the Original Indenture and in this Supplemental Indenture and for other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of the Notes, as follows:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101 Definitions. For all purposes of the Original Indenture and this Supplemental Indenture relating to the Debt Securities (consisting of the Notes) created hereby and the Guarantee in respect thereof, except as otherwise expressly provided or unless the context otherwise requires, the terms defined in this Article have the meanings assigned to them in this Article. Each capitalized term that is used in the Original Indenture and this Supplemental Indenture but not defined herein shall have the meaning specified in the Original Indenture.
“Additional Notes” has the meaning specified in Section 202 of this Supplemental Indenture.
“Agent Members” has the meaning specified in Section 209(e)(v) of this Supplemental Indenture.
“Applicable Procedures” means, with respect to any transfer or transaction involving a Global Note or beneficial interest therein, the rules and procedures of the Depositary for such Note, in each case to the extent applicable to such transaction and as in effect from time to time.
“Below Investment Grade Downgrade Event” means the rating on the Notes is lowered in respect of a Change of Control and such Notes are rated below an Investment Grade Rating by each of the Rating Agencies on any date from the first public announcement by the Company of any Change of Control (or pending Change of Control) and ending 60 days following consummation of such Change of Control (which period shall be extended until the ratings are announced if, during such 60-day period, the rating of the Notes is under publicly announced consideration for possible downgrade by each of the Rating Agencies); provided that a Below Investment Grade Downgrade Event otherwise arising by virtue of a particular reduction in rating shall not be deemed to have occurred in respect of a particular Change of Control (and thus shall not be deemed a Below Investment Grade Downgrade Event for purposes of the definition of Change of Control Repurchase Event hereunder) if the Rating Agencies making the reduction in rating to which this definition would otherwise apply do not announce or publicly confirm or inform the Company in writing at its request that the reduction was the result, in whole or in part, of any event or circumstance comprised of or arising as a result of, or in respect of, the applicable Change of Control (whether or not the applicable Change of Control shall have occurred at the time of the Below Investment Grade Downgrade Event). The Company shall request the Rating Agencies to make such confirmation in connection with any Change of Control and shall promptly certify to the Trustee as to whether or not such confirmation has been received or denied.
“Business Day” means any day other than a Saturday, a Sunday or a legal holiday or a day on which banking institutions or trust companies in The City of New York are authorized or obligated by law to close.
“Capital Stock” of any Person means any and all shares, interests, participations, rights in or other equivalents (however designated) of such Person’s capital stock, other equity interests whether now outstanding or issued after the Issue Date, partnership interests (whether general or limited), limited liability company interests, any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person, including any preferred stock, and any rights (other than debt securities convertible into, or exchangeable for or valued by reference to, Capital Stock until and unless any such debt security is converted into Capital Stock), warrants or options exchangeable for or convertible into such Capital Stock.
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“cash” means U.S. legal tender.
“Certificated Notes” means the Notes issued in certificated, registered form without interest coupons and not required to bear the Legend set forth in Section 207(a)(ii) of this Supplemental Indenture.
“Change of Control” means the occurrence of any of the following events:
(1) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act), other than one or more Permitted Holders, becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that a Person shall be deemed to have beneficial ownership of all shares that such Person has the right to acquire, whether such right is exercisable immediately or only after the passage of time), directly or indirectly, of more than 50% of the total outstanding Voting Stock of the Company;
(2) the Company sells, assigns, conveys, transfers, leases or otherwise disposes of (other than by way of merger or consolidation) all or substantially all of its and its Subsidiaries’ assets taken as a whole to any Person, other than any such transaction where:
| (A) | the transferee is a Person controlled, directly or indirectly, by one or more Permitted Holders; or |
| (B) | following such transaction, each transferee becomes an obligor in respect of the Notes and either (i) each transferee is or becomes a Subsidiary of the transferor of such assets or (ii) the holders of the Voting Stock of the Company immediately prior to such transaction own, directly or indirectly, not less than a majority of the Voting Stock of the transferee immediately after such transaction; |
(3) the Company consolidates with or merges with or into any Person or any Person consolidates with or merges into or with the Company, in any such event pursuant to a transaction in which the outstanding Voting Stock of the Company is converted into or exchanged for cash, securities or other property, other than any such transaction where:
| (A) | the surviving corporation is a Person controlled, directly or indirectly, by one or more Permitted Holders; or |
| (B) | (i) the outstanding Voting Stock of the Company is changed into or exchanged for Voting Stock of the surviving corporation (or any direct or indirect parent company of the surviving corporation) and (ii) the holders of the Voting Stock of the Company immediately prior to such transaction own, directly or indirectly, not less than a majority of the Voting Stock of the surviving corporation immediately after such transaction; or |
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| (4) | the adoption of a plan relating to the liquidation or dissolution of the Company. |
Notwithstanding the foregoing, a transaction will not be deemed to involve a Change of Control if (i) Cox becomes a direct or indirect wholly owned subsidiary of a holding company and (ii) the direct or indirect holders of the Voting Stock of Cox immediately prior to such transaction own, directly or indirectly, at least a majority of the Voting Stock of such holding company.
“Change of Control Repurchase Event” means the occurrence of a Change of Control together with a Below Investment Grade Downgrade Event with respect to the Notes. Notwithstanding the foregoing, no Change of Control Repurchase Event will be deemed to have occurred in connection with any particular Change of Control unless and until such Change of Control has actually been consummated.
“Clearstream” means Clearstream Banking, S.A. (formerly Cedelbank).
“Corporate Trust Office’” means 500 Ross Street, 12th Floor, Pittsburgh, Pennsylvania 15262 or such other address as the Trustee may designate from time to time by notice to the Holders and the Company, or the principal corporate trust office of any successor Trustee (or such other address as such successor Trustee may designate from time to time by notice to the Holders and the Company).
“Cox Descendants” means the lineal descendants of Governor James M. Cox.
“Cox Family Charities” means charitable organizations of which Cox Family Individuals constitute at least a majority of the trustees, members or directors thereof.
“Cox Family Individuals” means (a) the Cox Descendants and (b) the spouses and surviving spouses of Cox Descendants.
“Cox Family Members” means (a) Cox Family Individuals, (b) Cox Family Trusts, (c) Cox Family Charities or (d) corporations, partnerships, limited partnerships, limited liability companies or any other Person beneficially owned in whole or in part by one or more Cox Family Individuals or Cox Family Trusts or Cox Family Charities; provided that, with respect to clauses (b) and (d), in the case of a Cox Family Trust, a majority of the trustees are Cox Family Individuals, in the case of a general or limited partnership, Cox Family Individuals own, directly or indirectly, more than 50% of the interests or general partner interests, in the case of a limited liability company, Cox Family Individuals hold, directly or indirectly, more than 50% of the vote of the managers, and in the case of any other Person, one or more Cox Family Individuals is the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of more than 50% of the Voting Stock, measured by voting power rather than number of shares, of such Person.
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“Cox Family Trusts” means trusts established by or for the benefit of any one or more Cox Family Individuals.
“Credit Agreement” means the Third Amended and Restated Credit Agreement dated as of November 10, 2010, and as amended and restated as of March 28, 2014, December 13, 2018 and November 4, 2021, and further amended as of March 1, 2023 (and as may be further amended, supplemented or otherwise modified from time to time), among the Company, the Guarantor, JPMorgan Chase Bank, N.A., as administrative agent, and the lenders from time to time party thereto.
“Debt Securities” has the meaning specified in the first recital hereof.
“Depositary” means, with respect to the Notes issuable in whole or in part in global form, DTC and any nominee thereof, until a successor shall have been appointed and become such pursuant to the applicable provisions of the Indenture, and thereafter “Depositary” shall mean or include such successor and any nominee thereof.
“Distribution Compliance Period” means the 40-day distribution compliance period as defined in Regulation S, or such later date, if any, as may be required by applicable laws.
“DTC” means The Depository Trust Company.
“Electronic Means” shall mean the following communications methods: e-mail, facsimile transmission, secure electronic transmission containing applicable authorization codes, passwords and/or authentication keys issued by the Trustee, or another method or system specified by the Trustee as available for use in connection with its services hereunder.
“Euroclear” means the Euroclear Bank SA/NV.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Fitch” means Fitch Ratings, Inc. or any successor to the rating agency business thereof.
“Global Note” means a Note issued in global form, bearing the legends set forth in Section 207(a)(ii) of this Supplemental Indenture, and deposited with or on behalf of the Depositary.
“Guarantee” has the meaning specified in the recitals hereof.
“Guarantor” has the meaning specified in the first paragraph hereof.
“Holder” and “Noteholder,” in the case of any Note, means the Person in whose name such Note is registered in the Debt Security Register.
“Institutional Accredited Investor” means an institutional “accredited investor” as defined in Rule 50l(a)(l), (2), (3) and (7) under the Securities Act.
“Interest Payment Date,” in respect of any Note, has the meaning assigned to it in such Note.
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“Investment Grade Rating” means (a) with respect to Moody’s, a rating equal to or higher than Baa3 (or the equivalent), and (b) with respect to S&P and Fitch, a rating equal to or higher than BBB- (or the equivalent) (or, in each case, if such Rating Agency ceases to rate the Notes for reasons outside of the Company’s control, the equivalent investment grade credit rating from any Rating Agency selected by the Company as a replacement Rating Agency).
“Issue Date” means January 19, 2024.
“Legend” means the Transfer Restriction Legend as defined in Section 207(c) of this Supplemental Indenture.
“Moody’s” means Moody’s Investors Service, Inc. or any successor to the rating agency business thereof.
“Notes” has the meaning specified in the recitals hereof.
“Permitted Holders” means (a) the Cox Family Members, (b) the Guarantor and its affiliates, including any successor Person to the Guarantor that owns, directly or indirectly, 100% of the Capital Stock of the Company and such successor Person’s affiliates, and (c) any “group” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act) of the foregoing with respect to which any such Persons exercise a majority of voting power.
“Purchase Agreement” means the Purchase Agreement, dated January 16, 2024, among the Company and J.P. Morgan Securities LLC, Barclays Capital Inc., Mizuho Securities USA LLC and RBC Capital Markets, LLC, acting as representatives on behalf of the Initial Purchasers (as defined therein).
“Qualified Institutional Buyer” has the meaning specified in Rule 144A.
“Rating Agencies” means:
| (1) | S&P; | |
| (2) | Moody’s; and | |
| (3) | Fitch; |
provided, that if S&P, Moody’s or Fitch or all three shall not make a rating of the Notes publicly available, a “nationally recognized statistical rating organization” within the meaning of Section 3(a)(62) of the Exchange Act, selected by the Company, which shall be substituted for S&P, Moody’s or Fitch or all three, as the case may be.
“Redemption Date”, with respect to any Note or portion thereof to be redeemed, means the date fixed for redemption in accordance with the terms of such Note and Article III of the Original Indenture.
“Redemption Price”, with respect to any Note or portion thereof to be redeemed, means the price at which it is to be redeemed as determined in accordance with the terms of the applicable Note and Article III of the Original Indenture.
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“Regulation S” means Regulation S under the Securities Act.
“Regulation S Global Note” means a Regulation S Temporary Global Note or Regulation S Permanent Global Note, as applicable.
“Regulation S Permanent Global Note” means a permanent Global Note in the form of the Note attached hereto as Exhibit A-2 and that is deposited with and registered in the name of the Depositary, issued in a denomination equal to the outstanding principal amount of the Regulation S Temporary Global Note upon expiration of the Distribution Compliance Period.
“Regulation S Temporary Global Note” means a temporary Global Note in the form of the Note attached hereto as Exhibit A-2 and that is deposited with and registered in the name of the Depositary, representing Notes sold in offshore transactions in reliance on Regulation S.
“Resale Restriction Termination Date” means (1) in the case of U.S. Global Notes, the date that is one year after the latest of (a) the Issue Date, (b) the original issue date of any Additional Notes and (c) the last date on which the Company or any of its Affiliates were the owner of such Notes (or any predecessor thereof) or, in the case of Regulation S Notes, the date that is 40 days after the latest of (a) the Issue Date, (b) the original issue date of any Additional Notes and (c) the date on which such Notes (or any predecessor thereof) were first offered to persons other than distributors (as defined in Rule 902 of Regulation S) in reliance on Regulation S and (2) such later date, if any, as may be required by applicable laws.
“Restricted Note” means a Note required to bear the Transfer Restriction Legend pursuant to Section 207(c) of this Supplemental Indenture and set forth on the forms of Notes attached as Exhibits A-1 and A-2, as applicable, to this Supplemental Indenture.
“Rule 144A” means Rule 144A under the Securities Act (or any successor provision), as it may be amended from time to time.
“S&P” means S&P Global Ratings, a division of S&P Global, Inc., or any successor to the rating agency business thereof.
“Securities Act” means the Securities Act of 1933, as amended.
“Supplemental Indenture” means this Twenty-First Supplemental Indenture.
“Termination Date” has the meaning set forth in Section 501(f) of this Supplemental Indenture.
“Transfer Restriction Legend” has the meaning specified in Section 207(c) of this Supplemental Indenture.
“Trustee” has the meaning specified in the first paragraph hereof.
“U.S. Global Note” means a Global Note in the form of the Note attached hereto as Exhibit A-1 to this Supplemental Indenture, and that is deposited with and registered in the name of the Depositary, representing Notes sold in reliance on Rule 144A.
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“Voting Stock” of a Person means Capital Stock of such Person of the class or classes pursuant to which the holders thereof have the general voting power under ordinary circumstances to elect at least a majority of the board of directors, managers or trustees of such Person (irrespective of whether or not at the time Capital Stock of any other class or classes shall have or might have voting power by reason of the happening of any contingency).
SECTION 102 Section References. Each reference to a particular section set forth in this Supplemental Indenture shall, unless the context otherwise requires, refer to this Supplemental Indenture.
SECTION 103 Effect of Supplemental Indenture. Except as set forth below and except as expressly amended hereby, the Original Indenture shall continue in full force and effect in accordance with the provisions thereof, and the Original Indenture is in all respects hereby ratified and confirmed. This Supplemental Indenture and all its provisions shall be deemed a part of the Original Indenture in the manner and to the extent herein and therein provided. The Original Indenture and this Supplemental Indenture shall be read, taken and construed as one and the same instrument.
This Supplemental Indenture amends and supplements and, to the extent inconsistent therewith, replaces the provisions of the Original Indenture, to which provisions reference is hereby made. For the avoidance of doubt, the provisions of Section 206 hereof amend Section 3.03 of the Original Indenture as set forth in such Section 206; the provisions of Section 210 hereof amend Section 6.01 of the Original Indenture as set forth in such Section 210; the provisions of Section 211 hereof amend Section 7.06 of the Original Indenture as set forth in such Section 211; the provisions of Section 212 hereof amend Section 7.07 of the Original Indenture as set forth in such Section 212; the provisions of Section 213 hereof amend Section 7.08 of the Original Indenture as set forth in such Section 213; the provisions of Sections 214 and 215 hereof amend Section 9.01 of the Original Indenture as set forth in such Sections 214 and 215; the provisions of Article 3 hereof replace the provisions of Section 5.03 of the Original Indenture in their entirety; the provisions of Section 402 hereof replace the provisions of Section 4.08 of this Original Indenture in their entirety; the provisions of Section 403 hereof replace the provisions of Section 4.09 of the Original Indenture in their entirety; and the provisions of Article 6 hereof amend the provisions of Section 7.02 of the Original Indenture as set forth in such Article 6.
The amendments and supplements to, and replacements of the provisions of, the Original Indenture effected by this Supplemental Indenture shall be applicable only with respect to, and govern the terms of, the Debt Securities issued pursuant to this Supplemental Indenture and the Guarantee in respect thereof, and shall not apply to any other Debt Securities that have been or may be issued under the Original Indenture unless a supplemental indenture with respect to such other Debt Securities specifically incorporates such amendments, supplements and replacements.
The provisions of Article XI of the Original Indenture shall apply to the Notes.
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ARTICLE 2
THE NOTES
SECTION 201 Title of the Notes. The Notes shall be known and designated as the “5.800% Notes due 2053” of the Company.
SECTION 202 Amount. The aggregate principal amount of Notes that may be authenticated and delivered under this Supplemental Indenture is initially limited to $850,000,000, except for Notes authenticated and delivered upon registration of, transfer of, or exchange for, or in lieu of, other Notes pursuant to Section 2.07, 2.08, 2.09 or 9.04 of the Indenture, or upon repayment in part of any Note pursuant to Article III of the Original Indenture. The Company may, from time to time, subject to compliance with any other applicable provisions of this Supplemental Indenture but without the consent of the Holders of the Notes, create and issue pursuant to this Supplemental Indenture an unlimited principal amount of additional Notes (in excess of any amounts theretofore issued) having the same terms and conditions to those of the other outstanding Notes (“Additional Notes”); provided that any such Additional Notes (i) may have a different issue date and issue price from other outstanding Notes and (ii) may have a different amount of interest payable on the first Interest Payment Date after issuance than the amount payable on other outstanding Notes; provided further, that any such any such Additional Notes are not fungible with the applicable Notes issued on the Issue Date for U.S. federal income tax purposes, such Additional Notes will be issued with a separate CUSIP number.
SECTION 203 Stated Maturity. The Stated Maturity of the Notes shall be December 15, 2053.
SECTION 204 Interest. The Notes shall bear cash interest at the rate of 5.800% per annum from January 19, 2024 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, payable semiannually in arrears on June 15 and December 15 of each year, beginning on June 15, 2024, to the Persons in whose names such Notes are registered at the close of business on the immediately preceding June I or December 1, as the case may be, whether or not a Business Day. Interest on the Notes will be computed on the basis of a 360-day year of twelve 30-day months.
SECTION 205 Payments.
(a) Payments of principal, premium, if any, and interest on the Notes will be made to the Depositary, or its nominee, as the case may be, as the registered owner and holder of the Global Notes representing the Notes. In the event that the Notes are issued in the form of Certificated Notes, payments of principal, premium, if any, and interest thereon will be at the office or agency of the Trustee in the City of New York designated for such purpose; provided that, with respect to definitive Certificated Notes only, payment of interest, other than interest payable at Stated Maturity or upon redemption, may be made at the option of the Company, by the Trustee to the address of the Person entitled as shown on the register for such Debt Securities.
(b) If any date of Stated Maturity, Redemption Date or Interest Payment Date falls on a day that is not a Business Day, the required payment shall be made on the next Business Day, and no interest shall accrue on the amount so payable for the period between such payment date and the next Business Day.
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(c) Payments of principal, premium, if any, and interest on the Notes shall be made in cash or such other coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debt.
SECTION 206 Redemption. The Notes shall be redeemable, in whole or in part, on one or more Redemption Dates at the applicable Redemption Price. If the Redemption Date is not an Interest Payment Date, the amount of the scheduled interest payment on the next succeeding Interest Payment Date will be reduced by the amount of interest accrued to the Redemption Date. In connection with any redemption, notice of the redemption will be delivered at least 10 days but not more than 60 days prior to the applicable Redemption Date to the Holders of the Notes by first-class mail or delivered electronically if held by DTC, to the address of such Holder appearing in the security register or otherwise in accordance with the procedures of DTC. Without limiting the other provisions of Section 3.03 of the Original Indenture, any notice of redemption may, at the Company’s discretion, be subject to the satisfaction of one or more conditions precedent, and if such notice of redemption is conditioned upon the occurrence of one or more conditions precedent, such notice shall state the nature of such conditions precedent. At the Company’s request, the Trustee shall give the notice of redemption in the Company’s name and at the Company’s expense. In such event, the Company shall provide the Trustee with the information required by this Section and the Original Indenture relating to such redemption.
SECTION 207 Forms; Denominations. The Notes shall be Registered Securities. The Global Notes representing the Notes shall be in substantially the forms attached hereto as Exhibits A-1 and A-2, as applicable.
The Notes are being offered and sold by the Company pursuant to the Purchase Agreement.
(a) Global Notes. (i) Notes offered and sold in reliance on Rule 144A as provided in the Purchase Agreement shall be issued initially in the form of one or more U.S. Global Notes in definitive fully registered form without interest coupons, deposited on behalf of the subscribers for the Notes represented thereby with the Trustee, as custodian for the Depositary and registered in the name of DTC or a nominee thereof, duly executed by the Company and authenticated by the Trustee as provided in the Indenture. The aggregate principal amount of the U.S. Global Notes may from time to time be increased or decreased by adjustments made on the records of the Trustee and the Depositary as hereinafter provided.
Notes offered and sold in offshore transactions in reliance on Regulation S as provided in the Purchase Agreement shall be issued initially in the form of one or more Regulation S Temporary Global Notes in definitive fully registered form without interest coupons, deposited on behalf of the subscribers for the Notes represented thereby with the Trustee, as custodian for the Depositary, for the accounts of Euroclear and Clearstream and registered in the name of DTC or a nominee thereof, duly executed by the Company and authenticated by the Trustee as hereinafter provided. The Distribution Compliance Period shall be terminated upon the receipt by the Trustee of a written certificate from the Depositary, if available, together with copies of certificates from Euroclear and Clearstream, if available, certifying that they have received certification of non-United States beneficial ownership of 100% of the aggregate principal amount of the Regulation S Temporary Global Note (except to the extent of any beneficial owners thereof who acquired an interest therein during the Distribution Compliance Period pursuant to another exemption from registration under the Securities Act and who shall take delivery of a beneficial ownership interest in a U.S. Global Note bearing a Legend, all as contemplated by Section 209(a)(iii) hereof).
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Following the termination of the Distribution Compliance Period, beneficial interests in the Regulation S Temporary Global Note shall be exchanged for beneficial interests in the Regulation S Permanent Global Note pursuant to the Applicable Procedures. Simultaneously with the authentication of the Regulation S Permanent Global Note, the Trustee shall cancel the Regulation S Temporary Global Note. The aggregate principal amount of the Regulation S Temporary Global Note and the Regulation S Permanent Global Note may from time to time be increased or decreased by adjustments made on the records of the Trustee and the Depositary as hereinafter provided.
Each Global Note shall represent such of the outstanding Notes as shall be specified therein and each shall provide that it shall represent the aggregate principal amount of outstanding Notes from time to time endorsed thereon and the aggregate principal amount of outstanding Notes represented thereby may from time to time be reduced to reflect exchanges or redemptions. Any adjustment of the aggregate principal amount of a Global Note representing the Notes to reflect the amount of any decrease in the principal amount of outstanding Notes represented thereby shall be made by the Trustee in accordance with instructions given by the Holder thereof as required by Section 209 hereof and shall be made on the records of the Trustee and the Depositary.
(i) Book-Entry Provisions. This Section 207(a)(ii) shall apply only to Global Notes.
The Company shall execute and the Trustee shall, in accordance with this Section 207(a)(ii) and Section 2.02 of the Indenture, authenticate and deliver initially one or more Global Notes that (a) shall be registered in the name of the Depositary, (b) shall be delivered by the Trustee to the Depositary or pursuant to the Depositary’s instructions and (c) shall bear legends substantially to the following effect:
“UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON 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.
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“TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS, IN WHOLE BUT NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN ARTICLE TWO OF THE TWENTY-FIRST SUPPLEMENTAL INDENTURE REFERRED TO ON THE REVERSE HEREOF.”
(b) Certificated Notes. Except as otherwise set forth in this Supplemental Indenture, owners of beneficial interests in Global Notes will not be entitled to receive physical delivery of Certificated Notes. Beneficial interests in a Global Note transferred in accordance with Section 209(a)(ii) to an Institutional Accredited Investor who is not a Qualified Institutional Buyer and beneficial interests in a Global Note transferred to the beneficial holders thereof pursuant to Section 209(e) will be issued in certificated, registered form without interest coupons.
(c) Restrictive Legends. Prior to the Resale Restriction Termination Date, all Global Notes and all Certificated Notes issued in exchange for a beneficial interest in a Global Note shall bear a legend (the “Transfer Restriction Legend”) in substantially the following form, unless such Notes have been sold pursuant to a registration statement that has been declared effective under the Securities Act:
“THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
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“THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS A NON-U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH THE LAWS APPLICABLE TO SUCH PURCHASER IN THE JURISDICTION IN WHICH SUCH PURCHASE IS MADE AND (2) AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) THAT IS, IN THE CASE OF U.S. GLOBAL NOTES: ONE YEAR AFTER THE LATEST OF THE ISSUE DATE HEREOF, THE ORIGINAL ISSUE DATE OF ANY ADDITIONAL NOTES AND THE LAST DATE ON WHICH THE COMPANY OR ANY OF ITS AFFILIATES WERE THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), OR IN THE CASE OF REGULATION S GLOBAL NOTES: 40 DAYS AFTER THE LATEST OF THE ISSUE DATE HEREOF, THE ORIGINAL ISSUE DATE OF ANY ADDITIONAL NOTES AND THE DATE ON WHICH THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) WAS FIRST OFFERED TO PERSONS OTHER THAN DISTRIBUTORS (AS DEFINED IN RULE 902 OF REGULATION S) IN RELIANCE ON REGULATION S, ONLY (A) TO THE COMPANY, THE GUARANTOR OR ANY SUBSIDIARY THEREOF, (B) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH THE LAWS APPLICABLE TO IT IN THE JURISDICTION IN WHICH SUCH PURCHASE IS MADE, (D) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY’S AND THE TRUSTEE’S, OR REGISTRAR’S, AS APPLICABLE, RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (C) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE FOREGOING CASES, A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE OR REGISTRAR. THIS LEGEND WILL BE REMOVED UPON THE WRITTEN REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE. IN THE CASE OF REGULATIONS GLOBAL NOTES: BY ITS ACQUISITION HEREOF, THE HOLDER HEREOF REPRESENTS THAT IT IS NOT A U.S. PERSON NOR IS IT PURCHASING FOR THE ACCOUNT OF A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT.
“IN THE CASE OF REGULATION S TEMPORARY GLOBAL NOTES: THIS GLOBAL NOTE IS A TEMPORARY GLOBAL NOTE FOR PURPOSES OF REGULATION S UNDUE THE SECURITIES ACT. NEITHER THIS TEMPORARY GLOBAL NOTE NOR ANY INTEREST HEREIN MAY BE OFFERED, SOLD OR DELIVERED, EXCEPT AS PERMITTED UNDER THE INDENTURE REFERRED TO BELOW.”
SECTION 208 Transfer and Exchange.
(a) Notwithstanding any provision to the contrary herein, so long as a Global Note remains Outstanding and is held by or on behalf of the Depositary, transfers of such Global Note, in whole or in part, shall be made only in accordance with Section 209 and this Section 208.
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(b) Transfers of a Global Note shall be limited to transfers of such Global Note in whole, or in part, to nominees of the Depositary or to a successor of the Depositary or such successor’s nominee.
(c) If Notes are issued upon the transfer, exchange or replacement of Notes subject to restrictions on transfer and bearing a Legend, or if a request is made to remove the Legend on a Note, the Notes so issued shall bear the Legend, or the Legend shall not be removed, as the case may be, unless there is delivered to the Company and the Registrar such satisfactory evidence, which shall include an opinion of counsel, as may be reasonably required by the Company and the Registrar, that neither the Legend nor the restrictions on transfer set forth therein are required to ensure that transfers thereof comply with the provisions of Rule 144A, Rule 144 or Regulation S under the Securities Act, that such Notes are not “restricted” within the meaning of Rule 144 under the Securities Act or that any such exchange or replacement Notes have been issued in a registered transaction under the Securities Act. Upon (i) provision of such satisfactory evidence, or (ii) notification by the Company to the Trustee and the Registrar of the sale or exchange of such Notes pursuant to a registration statement that is effective at the time of such sale, the Trustee, at the written direction of the Company, shall authenticate and deliver a Note that does not bear the Legend. If the Legend is removed from the face of a Note and the Note is subsequently held by an Affiliate of the Company, the Legend shall be reinstated.
The Trustee and the Registrar shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Supplemental Indenture or under applicable law with respect to any transfer of any interest in any Note (including transfers between or among the Depositary’s participants or beneficial owners of interest in any Global Note) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Supplemental Indenture and to examine the same to determine substantial compliance as to form with the express requirements hereof.
SECTION 209 Global Notes.
(a) Notwithstanding any other provisions of this Supplemental Indenture or the Notes, (A) transfers of a Global Note, in whole or in part, shall be made only in accordance with Section 2.07 of the Indenture and Sections 208 and 209(a)(i) below, (B) transfer of a beneficial interest in a Global Note for a Certificated Note shall comply with Section 2.07 of the Indenture and Section 209(a)(ii) below, (C) transfers of a beneficial interest in a Regulation S Global Note for a beneficial interest in a U.S. Global Note shall comply with Section 2.07 of the Indenture and Section 209(a)(iii) below, and (D) transfers of a Certificated Note shall comply with Section 2.07 of the Indenture and Sections 209(a)(iv) and (v) below.
(i) Transfer of Global Note. A Global Note may not be transferred, in whole or in part, to any Person other than the Depositary or a nominee thereof, and no such transfer to any such other Person may be registered; provided that this clause (i) shall not prohibit any transfer of a Note that is issued in exchange for a Global Note but is not itself a Global Note. No transfer of a Note to any Person shall be effective under the Indenture or the Notes unless and until such Note has been registered in the name of such Person. Nothing in this Section 209(a)(i) shall prohibit or render ineffective any transfer of a beneficial interest in a Global Note effected in accordance with the other provisions of this Section 209(a).
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(ii) Restrictions on Transfer of a Beneficial Interest in a Global Note for a Certificated Note. A beneficial interest in a Global Note may not be exchanged for a Certificated Note except upon satisfaction of the requirements set forth below. Upon receipt by the Trustee of a request for transfer of a beneficial interest in a Global Note in accordance with Applicable Procedures for a Certificated Note in the form satisfactory to the Trustee, together with:
(a) so long as the Notes are Restricted Notes, certification, in the form set forth in Exhibit B-1 attached hereto, and, if requested by the Company or the Registrar, certification in the form set forth in Exhibit B-2 attached hereto, that such beneficial interest in the Global Note is being transferred to an Institutional Accredited Investor;
(b) written instructions to the Trustee to make, or direct the Registrar to make, an adjustment on its books and records with respect to such Global Note to reflect a decrease in the aggregate principal amount of the Notes represented by the Global Note, such instructions to contain information regarding the Depositary account to be credited with such decrease; and
(c) if the Company or Registrar so requests, an opinion of counsel or other evidence reasonably satisfactory to them as to compliance with the restrictions set forth in the applicable Legend,
then the Trustee shall cause, or direct the Registrar to cause, in accordance with the standing instructions and procedures existing between the Depositary and the Registrar, the aggregate principal amount of Notes represented by the Global Note to be decreased by the aggregate principal amount of the Certificated Note to be issued, shall issue such Certificated Note and shall debit or cause to be debited to the account of the Person specified in such instructions a beneficial interest in the Global Note equal to the principal amount of the Certificated Note so issued.
(iii) Restrictions on Transfer of Beneficial Interest in a Regulation S Global Note for a Beneficial Interest in a U.S. Global Note.
(a) On or prior to the expiration of the Distribution Compliance Period, a beneficial interest in a Regulation S Global Note may be transferred to a Person who takes delivery in the form of an interest in the corresponding U.S. Global Note only upon receipt by the Trustee of a written certification from the transferor to the effect that such transfer is being made (i)(a) to a Person whom the transferor reasonably believes is a Qualified Institutional Buyer in a transaction meeting the requirements of Rule 144A or (b) pursuant to another exemption from the registration requirements under the Securities Act which is accompanied by an Opinion of Counsel regarding the availability of such exemption and (ii) in accordance with all applicable securities laws of any state of the United States or any other jurisdiction.
(b) Beneficial interests in the U.S. Global Note may be transferred to a Person who takes delivery in the form of an interest in the Regulation S Global Note, whether before or after the expiration of the Distribution Compliance Period, only if the transferor first delivers to the Trustee a written certificate to the effect that such transfer is being made in accordance with Rule 904 of Regulation S or Rule 144 (if available).
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(iv) Transfer and Exchange of Certificated Notes. When Certificated Notes are presented to the Registrar with a request:
| (x) | to register the transfer of such Certificated Notes; or |
(y) to exchange such Certificated Notes for an equal principal amount of Certificated Notes of other authorized denominations, the Registrar shall register the transfer or make the exchange as requested if its reasonable requirements for such transaction are met; provided, however, that the Certificated Notes surrendered for transfer or exchange:
(a) shall be duly endorsed or accompanied by a written instrument of transfer in form reasonably satisfactory to the Company and the Registrar, duly executed by the Holder thereof or his attorney duly authorized in writing; and
(b) so long as such Notes are Restricted Notes, such Notes are being transferred or exchanged pursuant to clause (A), (B) or (C) below, and are accompanied by the following additional information and documents, as applicable:
| (A) | if such Certificated Notes are being delivered to the Registrar by a Holder for registration in the name of such Holder, without transfer, a certification from such Holder to that effect; or | |
| (B) | if such Certificated Notes are being transferred to the Company, a certification to that effect; or |
| (C) | if such Certificated Notes are being transferred pursuant to an exemption from registration, (i) a certification to that effect (in the form set forth in Exhibit B-1 and B-2, if applicable) and (ii) if the Company or Registrar so requests, an opinion of counsel or other evidence reasonably satisfactory to them as to the compliance with the restrictions set forth in the Transfer Restriction Legend. |
(v) Restrictions on Transfer of a Certificated Note for a Beneficial Interest in a Global Note. A Certificated Note may not be exchanged for a beneficial interest in a Global Note except upon satisfaction of the requirements set forth below.
Upon receipt by the Trustee of a Certificated Note, duly endorsed or accompanied by appropriate instruments of transfer, in form satisfactory to the Trustee, together with:
(x) so long as the Notes are Restricted Notes, certification, in the form set forth in Exhibit B-1, that such Certificated Note is being transferred to a Qualified Institutional Buyer in accordance with Rule 144A; and
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(y) written instructions directing the Trustee to make, or to direct the Registrar to make, an adjustment on its books and records with respect to such Global Note to reflect an increase in the aggregate principal amount of the Notes represented by the Global Note, such instructions to contain information regarding the Depositary account to be credited with such increase,
then the Trustee shall cancel such Certificated Note and cause, or direct the Registrar to cause, in accordance with the standing instructions and procedures existing between the Depositary and the Registrar, the aggregate principal amount of Notes represented by the Global Note to be increased by the aggregate principal amount of the Certificated Note to be exchanged, and shall credit or cause to be credited to the account of the Person specified in such instructions a beneficial interest in the Global Note equal to the principal amount of the Certificated Note so cancelled. If no Global Notes are then Outstanding, the Company shall issue and the Trustee shall authenticate, upon receipt of a Company Order, a new Global Note in the appropriate principal amount.
(b) Subject to the succeeding paragraph, every Note shall be subject to the restrictions on transfer provided in the applicable Legend including the delivery of an opinion of counsel, if so provided. Whenever any Restricted Note is presented or surrendered for registration of transfer or for exchange for a Note registered in a name other than that of the Holder, such Note must be accompanied by a certificate in substantially the form set forth in Exhibit B-1, dated the date of such surrender and signed by the Holder of such Note, as to compliance with such restrictions on transfer. The Registrar shall not be required to accept for such registration of transfer or exchange any Note not so accompanied by a properly completed certificate.
(c) The restrictions imposed by the Transfer Restriction Legend upon the transferability of any Restricted Note shall cease and terminate when such Note has been sold or exchanged pursuant to an effective registration statement under the Securities Act or may be transferred in compliance with Rule 144 under the Securities Act (or any successor provision thereto). Any Note as to which such restrictions on transfer shall have expired in accordance with their terms or shall have terminated may, upon a surrender of such Note for exchange to the Registrar in accordance with the provisions of this Section 209 (accompanied, in the event that such restrictions on transfer have terminated by reason of a transfer in compliance with Rule 144 or any successor provision, by an opinion of counsel having substantial experience in practice under the Securities Act and otherwise reasonably acceptable to the Company, addressed to the Company, the Trustee and the Registrar and in form acceptable to the Company, to the effect that the transfer of such Note has been made in compliance with Rule 144 or such successor provision), be exchanged for a new Note, of like tenor and aggregate principal amount, which shall not bear the Transfer Restriction Legend. The Company shall inform the Trustee of the effective date of any registration statement registering the Notes under the Securities Act. The Trustee shall not be liable for any action taken or omitted to be taken by it in good faith in accordance with the aforementioned opinion of counsel.
(d) As used in the preceding two paragraphs of this Section 209, the term “transfer” encompasses any sale, pledge, transfer, hypothecation or other disposition of any Note.
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| (e) | The provisions of clauses (i), (ii), (iii), (iv), and (v) below shall apply only to Global Notes: |
(i) Notwithstanding any other provisions of the Indenture or the Notes, except as provided in Section 209(a)(ii), a Global Note shall not be exchanged in whole or in part for a Note registered in the name of any Person other than the Depositary or one or more nominees thereof, provided that a Global Note may be exchanged for Certificated Notes registered in the names of any Person designated by the Depositary in the event that (A) the Depositary has notified the Company that it is unwilling or unable to continue as depositary for such Global Note or the Depositary has ceased to be a “clearing agency” registered under the Exchange Act, and a successor Depositary is not appointed by the Company within 90 days or (B) an Event of Default has occurred and is continuing with respect to the Notes. Any Global Note exchanged pursuant to clause (A) above shall be so exchanged in whole and not in part, and any Global Note exchanged pursuant to clause (B) above may be exchanged in whole or from time to time in part as directed by the Depositary. Prior to the issuance of Certificated Notes in exchange for any beneficial interests in a Regulation S Global Note, the holder of such beneficial interests shall, as a condition to such exchange, certify in a form satisfactory to the Company that such holder is a non-U.S. person (as that term is defined in Regulation S under the Securities Act) or a U.S. person who purchased such beneficial interest in a transaction that did not require registration under the Securities Act. In the event that Certificated Notes are issued in respect of beneficial interests in a Regulation S Global Note at any time prior to the end of the Distribution Compliance Period (other than in a transaction subject to Rule 144A), the Company shall as promptly as practicable, institute procedures, including appropriate certifications, reasonably designed to ensure that any transfer of such Certificated Notes prior to the end of the Distribution Compliance Period is made only in accordance with the provisions of Regulation S, pursuant to registration under the Securities Act or pursuant to an exemption from such registration.
(ii) Notes issued in exchange for a Global Note or any portion thereof shall be issued in definitive, fully registered form, without interest coupons, shall have an aggregate principal amount equal to that of such Global Note or portion thereof to be so exchanged, shall be registered in such names and be in such authorized denominations as the Depositary shall designate and shall bear the applicable Legend. Any Global Note to be exchanged in whole shall be surrendered by the Depositary to the Trustee, as Registrar. With regard to any Global Note to be exchanged in part, either such Global Note shall be so surrendered for exchange or, if the Trustee is acting as custodian for the Depositary or its nominee with respect to such Global Note, the principal amount thereof shall be reduced, by an amount equal to the portion thereof to be so exchanged, by means of an appropriate adjustment made on the records of the Trustee. Upon any such surrender or adjustment, the Trustee shall authenticate and deliver the Note issuable on such exchange to or upon the order of the Depositary or an authorized representative thereof.
(iii) Subject to the provisions of clause (v) below, the registered Holder may grant proxies and otherwise authorize any Person, including Agent Members (as defined below) and Persons that may hold interests through Agent Members, to take any action which a Holder is entitled to take under the Indenture or the Notes.
(iv) In the event of the occurrence of any of the events specified in clause (i) above, the Company will promptly make available to the Trustee a reasonable supply of Certificated Notes.
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(v) Neither any members of, or participants in, the Depositary (collectively, the “Agent Members”) nor any other Persons on whose behalf Agent Members may act shall have any rights under the Indenture with respect to any Global Note registered in the name of the Depositary or any nominee thereof, or under any such Global Note, and the Depositary or such nominee, as the case may be, may be treated by the Company, the Trustee and any agent of the Company or the Trustee as the absolute owner and holder of such Global Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee or any agent of the Company or the Trustee from giving effect to any written certification, proxy or other authorization furnished by the Depositary or such nominee, as the case may be, or impair, as between the Depositary, its Agent Members and any other Person on whose behalf an Agent Member may act, the operation of customary practices of such Persons governing the exercise of the rights of a Holder of any Note.
SECTION 210 Events of Default. For purposes of this Supplemental Indenture and the Notes issued hereunder, Section 6.01 of the Original Indenture is hereby amended by deleting the clause immediately following subsection (i) in the first sentence of such Section and inserting in its place the following:
then and in each and every case that an Event of Default described in clause (a), (b), (c), (d), (e), (f), (g) (with respect to Restricted Subsidiaries only), (h) (with respect to Restricted Subsidiaries only) or (i) with respect to Debt Securities of that series at the time Outstanding occurs and is continuing, unless the principal of and interest on all the Debt Securities of that series shall have already become due and payable, either the Trustee or the Holders of not less than 25% in aggregate principal amount of the Debt Securities of that series then Outstanding hereunder, by notice in writing to the Company (and to the Trustee if given by Holders), may declare the principal of (or, if the Debt Securities of that series are Original Issue Discount Debt Securities, such portion of the principal amount as may be specified in the terms of that series) and interest on all the Debt Securities of that series to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything in this Indenture or in the Debt Securities or Coupons appertaining thereto of that series contained to the contrary notwithstanding.
SECTION 211 Compensation and Reimbursement. For purposes of this Supplemental Indenture and the Notes issued hereunder, Section 7.06 of the Original Indenture is hereby amended to be replaced with the following:
The Company covenants and agrees to pay in Dollars to the Trustee such compensation as the Company and the Trustee shall from time to time agree in writing for all services rendered by it hereunder (which shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust), and, except as otherwise expressly provided herein, the Company will pay or reimburse in Dollars the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any of the provisions of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents, attorneys and counsel and of all Persons not regularly in its employ) except any such expense, disbursement or advances as may arise from its negligence or wilful misconduct. The Company also covenants to indemnify in Dollars each of the Trustee (which shall be deemed to include its officers, directors, employees, and agents) or any predecessor Trustee for, and to hold it harmless against, any loss, damage, claim, liability or expense, including the reasonable fees and expenses of counsel, and taxes (other than taxes based upon, measured by or determined by the income of the Trustee) incurred without negligence or wilful misconduct on the part of the Trustee, arising out of or in connection with the acceptance or administration of this trust or trusts hereunder, including the reasonable costs and expenses of defending itself against any claim of liability in connection with the exercise or performance of any of its powers or duties hereunder. The obligations of the Company under this Section 7.06 to compensate and indemnify the Trustee and to pay or reimburse the Trustee for expenses, disbursements and advances shall constitute additional indebtedness hereunder and shall survive the resignation or removal of the Trustee and/or the satisfaction and discharge of this Indenture. The Company and the Holders agree that such additional indebtedness shall be secured by a Lien prior to that of the Debt Securities and Coupons, if any, upon all property and funds held or collected by the Trustee, as such, except funds held in trust for the payment of principal of, and premium, if any, or interest on, particular Debt Securities and Coupons.
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SECTION 212 Right of Trustee to Rely on an Officers’ Certificate Where No Other Evidence Specifically Prescribed. With respect to the Notes, Section 7.07 of the Original Indenture is hereby amended to be replaced with the following:
Except as otherwise provided in Section 7.01, whenever in the administration of the provisions of this Indenture the Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering or omitting any action hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) may, be deemed to be conclusively proved and established by an Officers’ Certificate delivered to the Trustee, and such certificate shall be full warrant to the Trustee for any action taken, suffered or omitted by it under the provisions of this Indenture.
SECTION 213 Separate Trustee; Replacement of Trustee. With respect to the Notes, Section 7.08 of the Original Indenture is hereby amended to be replaced with the following:
The Company may, but need not, appoint a separate Trustee for any one or more series of Debt Securities. The Trustee may resign with respect to one or more or all series of Debt Securities at any time by giving 30 days’ notice to the Company. The Holders of a majority in principal amount of the Debt Securities of a particular series may remove the Trustee for such series and only such series by so notifying the Trustee and may appoint a successor Trustee with 30 days’ notice. The Company shall remove the Trustee with 30 days’ notice if:
| (1) | the Trustee fails to comply with Section 7.10; |
| (2) | the Trustee is adjudged bankrupt or insolvent; |
| (3) | a receiver or other public officer takes charge of the Trustee or its property; or |
| (4) | the Trustee otherwise becomes incapable of acting. |
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If the Trustee resigns, is removed by the Company or by the Holders of a majority in principal amount of the Debt Securities of a particular series and such Holders do not reasonably promptly appoint a successor Trustee, or if a vacancy exists in the office of Trustee for any reason (the Trustee in such event being referred to herein as the retiring Trustee), the Company shall promptly appoint a successor Trustee. No resignation or removal of the Trustee and no appointment of a successor Trustee shall become effective until the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of this Section 7.08.
A successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Company. Thereupon the resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee under this Indenture. The successor Trustee shall send a notice of its succession to Holders of Debt Securities of each applicable series. The retiring Trustee shall promptly transfer all property held by it as Trustee to the successor Trustee, subject to the Lien provided for in Section 7.06.
If a successor Trustee does not take office within 30 days after the retiring Trustee resigns or is removed, the retiring Trustee or the Holders of 25% in principal amount of the Debt Securities of any applicable series may petition, at the expense of the Company, any court of competent jurisdiction for the appointment of a successor Trustee for the Debt Securities.
If the Trustee fails to comply with Section 7.10, any Holder of Debt Securities of any applicable series may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee for the Debt Securities.
Notwithstanding the replacement of the Trustee pursuant to this Section 7.08, the Company’s obligations under Section 7.06 shall continue for the benefit of the retiring Trustee.
In the case of the appointment hereunder of a separate or successor trustee with respect to the Debt Securities of one or more series, the Company, any retiring Trustee and each successor or separate Trustee with respect to the Debt Securities of any applicable series shall execute and deliver an indenture supplemental hereto (1) which shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of any retiring Trustee with respect to the Debt Securities as to which any such retiring Trustee is not retiring shall continue to be vested in such retiring Trustee and (2) that shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trustee hereunder by more than one trustee, it being understood that nothing herein or in such supplemental Indenture shall constitute such Trustees co-trustees of the same trust and that each such separate, retiring or successor Trustee shall be Trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee.
SECTION 214 With respect to the Notes, Section 9.01(f) of the Original Indenture is hereby deleted in its entirety and replaced with “[Reserved]” in lieu thereof.
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SECTION 215 With respect to the Notes, the last paragraph of Section 9.01 of the Original Indenture is hereby deleted in its entirety and replaced with the following:
After an amendment under the Indenture becomes effective with respect to the Notes of a particular series, the Company is required to deliver to Holders of the Notes of such series, by first-class mail or delivered electronically if held by DTC, to the address of such Holder appearing in the security register or otherwise in accordance with the procedures of DTC, a notice briefly describing such amendment. However, the Company’s failure to give such notice to all Holders of the Notes of such series, or any defect in such notice, will not impair or affect the validity of the amendment.
ARTICLE 3
REPORTS BY THE COMPANY
So long as any of the Debt Securities are “restricted securities” within the meaning of Rule 144(a)(3) under the Securities Act, the Company will, during any period in which it is not subject to Sections 13 or 15(d) of the Exchange Act or it is not exempt from such reporting requirements pursuant to and in compliance with Rule 12g3-2(b) under the Exchange Act, provide to each Holder of Notes and to each prospective purchaser (as designated by such Holder) of Notes, upon the request of such Holder or prospective purchaser, any information required to be provided by Rule 144A(d)(4) under the Securities Act.
ARTICLE 4
ADDITIONAL COVENANTS
SECTION 401 Purchase of Notes Upon a Change of Control Repurchase Event.
(a) If a Change of Control Repurchase Event occurs with respect to the Notes, each Holder of Notes will have the right to require that the Company purchase all or any part (in denominations of $2,000 and integral multiples of $1,000 in excess thereof) of such Holder’s Notes pursuant to a Change of Control offer (a “Change of Control Offer”) on the terms set forth in this Supplemental Indenture, except that the Company shall not be obligated to repurchase the Notes pursuant to this Section 401 in the event that the Company has exercised the right to redeem all of the Notes as described in Section 206. In the Change of Control Offer with respect to the Notes, the Company will offer to purchase all of the Notes at a purchase price (the “Change of Control Purchase Price”) in cash in an amount equal to 101% of the principal amount of the Notes, plus accrued but unpaid interest, if any, to, but not including, the date of purchase (the “Change of Control Purchase Date”) (subject to the rights of Holders of record on the relevant record date to receive interest due on the relevant Interest Payment Date if such Notes have not been repurchased prior to such record date).
(b) Within 30 days after any Change of Control Repurchase Event with respect to the Notes or, at the Company’s option, prior to such Change of Control but after the public announcement of such pending Change of Control, the Company must notify the Trustee of the Notes and give written notice of the Change of Control Repurchase Event to the Trustee and each Holder of Notes, by first-class mail or delivered electronically if held by DTC, to the address of such Holder appearing in the security register or otherwise in accordance with the procedures of DTC. The notice must state, among other things:
(l) that a Change of Control Repurchase Event has occurred or may occur with respect to the Notes and the date of such event;
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(2) the purchase price and the purchase date which shall be fixed by the Company on a Business Day no earlier than 15 days nor later than 60 days from the date the notice is mailed or delivered electronically, other than as may be required by law;
| (3) | that any Note not tendered will continue to accrue interest; |
(4) that, unless the Company defaults in the payment of the Change of Control Purchase Price, any Notes accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest after the Change of Control Purchase Date; and
(5) other procedures that a Holder of Notes must follow to accept a Change of Control Offer or to withdraw acceptance of the Change of Control Offer.
In addition, the notice, if sent prior to the date of the consummation of the Change of Control, will state that the Change of Control Offer is conditioned on the Change of Control being consummated on or prior to the Change of Control Purchase Date.
(c) If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not withdraw such Notes in a Change of Control Offer and the Company, or any third party making a Change of Control Offer in lieu of the Company, as described in clause (d) below, purchases all of the Notes validly tendered and not withdrawn by such Holders, the Company will have the right, upon not less than 15 nor more than 60 days’ prior notice, with such notice given not more than 30 days following the Change of Control Purchase Date, to redeem all Notes that remain Outstanding following such purchase at a redemption price in cash equal to the Change of Control Purchase Price plus, to the extent not included in the Change of Control Purchase Price, accrued and unpaid interest, if any, on the Notes that remain Outstanding to, but not including, the date of redemption (subject to the rights of Holders of record on relevant record dates to receive interest due on the relevant Interest Payment Date).
(d) The Company will comply with Rule 14e-1 under the Exchange Act, and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control Repurchase Event. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 401, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Section 401 by virtue of its compliance with such securities laws and regulations. The Company will not be required to make a Change of Control Offer upon a Change of Control Repurchase Event with respect to the Notes if a third party makes the Change of Control Offer with respect to the Notes in the manner, at the times and otherwise in compliance with the requirements described in this Supplemental Indenture applicable to a Change of Control Offer made by the Company and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer.
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(e) On the Change of Control Purchase Date with respect to the Notes, the Company will, to the extent permitted by law:
(1) accept for payment all Notes or portions thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Depositary or the Trustee, as applicable, an amount equal to the aggregate Change of Control Purchase Price in respect of all Notes or portions thereof so tendered; and
(3) deliver, or cause to be delivered, to the Trustee for cancellation of the Notes so accepted together with an Officers’ Certificate to the Trustee stating that such Notes or portions thereof have been tendered to and purchased by the Company.
SECTION 402 Limitation on Liens. With respect to the Notes, Section 4.08 of the Original Indenture is hereby amended to be replaced with the following:
As long as any Notes remain Outstanding, the Company will not, and will not permit any Restricted Subsidiary to, create, incur or assume any Lien (other than Permitted Liens) on Restricted Property to secure the payment of Indebtedness of the Company or any Restricted Subsidiary if immediately after the creation, incurrence or assumption of such Lien, the aggregate outstanding principal amount of all Indebtedness of the Company and its Restricted Subsidiaries that is secured by Liens (other than Permitted Liens) on Restricted Property would exceed the greater of (i) $1,100,000,000 or (ii) 15% of the aggregate outstanding principal amount of all Indebtedness of the Company and its Restricted Subsidiaries (whether or not so secured), unless effective provision is made whereby the Notes (together with, if the Company shall so determine, any other Indebtedness ranking equally with the Notes, whether then existing or later created) are secured equally and ratably with (or prior to) such Indebtedness (but only for so long as such Indebtedness is so secured).
SECTION 403 Limitation on Indebtedness of Restricted Subsidiaries. For purposes of this Supplemental Indenture and the Notes issued hereunder, Section 4.09 of the Original Indenture is hereby amended to be replaced with the following:
As long as any Notes remain Outstanding, the Company will not permit any Restricted Subsidiary to incur or assume any Indebtedness if immediately after the incurrence or assumption of such Indebtedness, the aggregate outstanding principal amount of all Indebtedness of the Restricted Subsidiaries would exceed the greater of (i) $1,100,000,000 or (ii) 15% of the aggregate outstanding principal amount of all Indebtedness of the Company and its Restricted Subsidiaries; provided that in any event, a Restricted Subsidiary may incur Indebtedness to extend, renew or replace Indebtedness of such Restricted Subsidiary to the extent that the principal amount of the Indebtedness so incurred does not exceed the principal amount of the Indebtedness extended, renewed or replaced thereby immediately prior to such extension, renewal or replacement plus any premium, accrued and unpaid interest or capitalized interest payable thereon.
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ARTICLE 5
SECTION 501 Guarantee.
(a) The Guarantor hereby fully and unconditionally guarantees the Notes and the obligations of the Company thereunder and under the Indenture, and guarantees to each Holder of a Note authenticated and delivered by the Trustee, and to the Trustee on behalf of such Holder, that (i) the principal of (and premium, if any) and interest on the Notes will be paid in full when due, whether at Stated Maturity, by acceleration or otherwise (including, without limitation, the amount that would become due but for the operation of any automatic stay provision of any federal bankruptcy law), together with interest on the overdue principal, if any, and interest on any overdue interest, to the extent lawful, and all other obligations of the Company to the Holders or the Trustee under the Indenture or the Notes will be paid in full or performed, all in accordance with the terms of the Indenture and the Notes; and (ii) in case of any extension of time of payment or renewal of any Notes or of any such other obligations, the same will be paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise.
(b) The Guarantor hereby agrees that, upon the occurrence of an Event of Default in payment of principal (or premium, if any) or interest on the Notes, whether at Stated Maturity, by acceleration, purchase or otherwise, legal proceedings may be instituted by the Trustee on behalf of, or by, a Holder of Notes, subject to the terms and conditions set forth in the Indenture, directly against the Guarantor to enforce the Guarantee without first proceeding against the Company or any other guarantor. The Guarantor agrees that if, after the occurrence and during the continuance of an Event of Default with respect to the Notes, the Trustee or any of the Holders are prevented by applicable law from exercising their respective rights to accelerate the maturity of the Notes, to collect interest on the Notes, or to enforce or exercise any other right or remedy with respect to the Notes, the Guarantor will pay to the Trustee for the account of the Holders, upon demand therefor, the amount that would otherwise have been due and payable had such rights and remedies been permitted to be exercised by the Trustee or any of the Holders.
(c) With respect to the Notes, unless and until the Termination Date (as defined herein) has occurred, or the Guarantor shall be released in accordance with Section 504 of this Supplemental Indenture, to the fullest extent permitted by applicable law, the Guarantor shall remain obligated hereunder and the Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against the Company for liquidation or reorganization, should the Company become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Company’s assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Notes are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Notes, whether as a “voidable preference”, “fraudulent transfer” or otherwise, all as though such payment or performance had not been made. In the event that any payment, or any part thereof, is rescinded, reduced, restored or returned, the Notes shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned.
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(d) To the fullest extent permitted by applicable law, the Guarantor waives diligence, presentment, protest and notice of protest, demand for payment or performance, notice of default or nonpayment, notice of acceptance and any other notice in respect of the Company’s obligations under the Notes and under the Indenture, and any defense arising by reason of any disability or other defense of the Company or the Guarantor with respect to such obligations (other than the defense that the Termination Date has occurred or the Guarantor has been released in accordance with Section 504 of this Supplemental Indenture). The Guarantor understands and agrees that the Guarantee contained in this Article 5 shall be construed as a continuing, absolute and unconditional guarantee of payment and performance and not merely of collectability, and its Guarantee of the Notes and the obligations of the Company under the Indenture hereunder shall not be affected by, and shall remain in full force and effect without regard to, and hereby waives all rights, claims or defenses that it might otherwise have (now or in the future) with respect to each of the following (whether or not the Guarantor has knowledge thereof): (i) the validity, regularity or enforceability of the Notes or the Indenture or the absence of any action to enforce the same, (ii) the recovery of any judgment against the Company or any action to enforce the same, (iii) any renewal, extension or acceleration of, or any increase in the amount of the Company’s obligations under the Notes and under the Indenture (whether or not any increase is committed, contemplated or provided for by the Indenture or the Notes on the date hereof), (iii) any failure, omission or delay in enforcement (by agreement or otherwise), or the stay or enjoining (by court order, operation of law or otherwise) of the exercise of enforcement, of any claim or demand or any right, power or remedy (whether arising under the Indenture or the Notes, at law, in equity or otherwise) with respect to the Company’s obligations under the Notes and under the Indenture or (iv) any other circumstance whatsoever (with or without notice to or knowledge of the Guarantor) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Guarantor under the Guarantee contained in this Article 5, in bankruptcy or in any other instance (in each case, other than the occurrence of the Termination Date or the release of the Guarantor in accordance with Section 504 of this Supplemental Indenture).
(e) The Guarantor further agrees that, as between the Guarantor, on the one hand, and the Holders and the Trustee, on the other hand (i) subject to the terms and provisions of this Supplemental Indenture, the maturity of the obligations under the Notes guaranteed hereby may be accelerated as provided in Article VI of the Original Indenture for the purposes of this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (ii) in the event of any acceleration of such obligations as provided in Article VI of the Original Indenture, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor for the purpose of this Guarantee.
(f) Subject to Section 504 of this Supplemental Indenture, the Guarantee of the Notes contained in this Article 5 shall remain in full force and effect until all the obligations of the Company under the Notes and under the Indenture shall have been satisfied by payment in full (such date, the “Termination Date”).
(g) The Guarantee by the Guarantor of the Notes shall be independent of and shall not be affected by the Guarantee by the Guarantor of any other Debt Securities issued under the Indenture.
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SECTION 502 Subrogation. The Guarantor shall be subrogated to all rights of Holders against the Company in respect of any amounts paid by the Guarantor pursuant to its Guarantee; provided, however, that if an Event of Default has occurred and is continuing with respect to the Notes, the Guarantor shall not be entitled to enforce or receive any payments arising out of, or based upon, such right of subrogation until all amounts then due and payable by the Company under the Indenture or the Notes shall have been paid in full.
SECTION 503 Reinstatement. Subject to Section 504 of this Supplemental Indenture, the Guarantee of the Notes contained in this Article 5 shall continue to be effective, or be reinstated, as the case may be, if at any time payment, or any part thereof, of any of the Company’s obligations with respect to of the Notes or the Indenture is rescinded or must otherwise be restored or returned by the Trustee or any Holder upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of the Guarantor, or upon or as a result of the appointment of a receiver, intervenor or conservator of, or trustee or similar officer for, the Guarantor or any substantial part of its property, or otherwise, all as though such payments had not been made.
SECTION 504 Release of Guarantee. (a) The Guarantor shall, upon the occurrence of any of the following events, be automatically and unconditionally released and discharged from all obligations with respect to the Notes, the Indenture and the Guarantee of the Notes without any action required on the part of the Trustee or any Holder:
(i) on the Termination Date;
(ii) upon the termination or release of the Company’s guarantee of the Guarantor’s obligations under the Credit Agreement;
(iii) upon any covenant defeasance or legal defeasance with respect to the Notes and the Indenture, or upon the discharge of the Company’s obligations with respect to the Notes and obligations under the Indenture in accordance with its terms;
(iv) upon (A) the consolidation or merger by the Company with or into any Person or (B) the conveyance, transfer or lease of all or substantially all the assets of the Company, in a transaction that complies with the Indenture, such that the Company ceases to be a subsidiary of the Guarantor; or
(v) upon (A) the consolidation or merger by the Guarantor with or into any Person or (B) the conveyance, transfer or lease of all or substantially all the assets of the Guarantor, such that the Company ceases to be a subsidiary of the Guarantor.
The release of the Guarantor’s Guarantee of the Notes hereunder shall be independent of and shall not be affected by the release of the Guarantor’s Guarantee of any other Debt Securities issued under the Indenture.
SECTION 505 Execution and Delivery. The Guarantor hereby agrees that the Guarantee of the Notes will remain in full force and effect notwithstanding any failure to endorse on each Note a notation of such Guarantee.
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ARTICLE 6
MISCELLANEOUS PROVISIONS
The Trustee makes no undertaking or representations in respect of, and shall not be responsible in any manner whatsoever for and in respect of, the validity or sufficiency of this Supplemental Indenture or the Guarantee or the proper authorization or the due execution hereof by the Company or the Guarantor or for or in respect of the recitals and statements contained herein, all of which recitals and statements are made solely by the Company.
The Trustee (which shall be deemed to include the Paying Agent when the Trustee is also acting as a Paying Agent) shall have the right to accept and act upon instructions, including funds transfer instructions (“Instructions”) given pursuant to this Indenture and delivered using Electronic Means (as defined above); provided, however, that the Company shall provide to the Trustee an incumbency certificate listing officers with the authority to provide such Instructions (“Authorized Officers”) and containing specimen signatures of such Authorized Officers, which incumbency certificate shall be amended by the Company whenever a person is to be added or deleted from the listing. If the Company elects to give the Trustee Instructions using Electronic Means and the Trustee in its discretion elects to act upon such Instructions, the Trustee’s understanding of such Instructions shall be deemed controlling. The Company understands and agrees that the Trustee cannot determine the identity of the actual sender of such Instructions and that the Trustee shall conclusively presume that directions that purport to have been sent by an Authorized Officer listed on the incumbency certificate provided to the Trustee have been sent by such Authorized Officer. The Company shall be responsible for ensuring that only Authorized Officers transmit such Instructions to the Trustee and that the Company and all Authorized Officers are solely responsible to safeguard the use and confidentiality of applicable user and authorization codes, passwords and/or authentication keys upon receipt by the Company. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such Instructions notwithstanding such directions conflict or are inconsistent with a subsequent written instruction. The Company agrees: (i) to assume all risks arising out of the use of Electronic Means to submit Instructions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized Instructions, and the risk of interception and misuse by third parties; (ii) that it is fully informed of the protections and risks associated with the various methods of transmitting Instructions to the Trustee and that there may be more secure methods of transmitting Instructions than the method(s) selected by the Company; (iii) that the security procedures (if any) to be followed in connection with its transmission of Instructions provide to it a commercially reasonable degree of protection in light of its particular needs and circumstances; and (iv) to notify the Trustee immediately upon learning of any compromise or unauthorized use of the security procedures.
For purposes of this Supplemental Indenture and the Notes, Section 7.02 of the Original Indenture is hereby amended to include the following additional rights of the Trustee:
(i) in no event shall the Trustee be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action;
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(j) in no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, epidemics or pandemics, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances;
(k) the Trustee shall not be deemed to have notice of any Default or Event of Default unless a Responsible Officer of the Trustee has actual written notice thereof at the designated Corporate Trust Office of the Trustee, and such notice references the Notes and this Indenture;
(1) the rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder;
(m) the Trustee may require that the Company deliver a certificate setting forth the names of individuals, and their titles and direct-dial telephone numbers, of officers authorized at such time to take specified actions pursuant to this Indenture;
(n) the Trustee shall not be liable for errors in judgment made in good faith unless it is proved that the Trustee was grossly negligent in ascertaining the pertinent facts; and
| (o) | the Trustee may act at the direction of requisite Holders without liability. |
For purposes of this Supplemental Indenture and the Notes, Section 2.04 of the Original Indenture is hereby amended as follows:
(a) the Company shall be permitted to execute the Notes by manual, facsimile or electronic signature (so long as any such electronic signature is a true representation of the actual signature of the signatory thereof); and
(b) the Trustee shall be permitted to authenticate the Notes by manual, facsimile or electronic signature (so long as any such electronic signature is a true representation of the actual signature of the signatory thereof).
This Supplemental Indenture shall be governed by, and construed in accordance with, the laws of the State of New York.
Each of the Company, the Guarantor and the Trustee (i) expressly and irrevocably consents to submit itself to the exclusive personal jurisdiction of the state courts in the Borough of Manhattan in the City of New York in the State of New York, and any federal court located in the Borough of Manhattan in the City of New York in the State of New York, together with any appellate court therefrom, with respect to all actions and proceedings arising out of this Indenture, the Notes or the Guarantee and (ii) expressly and irrevocably waives (and agrees not to plead or claim) any objection to the laying of venue of any action or proceeding arising out of this Indenture, the Notes or the Guarantee in such court or that any such action or proceeding brought in any such court has been brought in an inconvenient forum.
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This Supplemental Indenture may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument. Any such counterparts may be executed manually, electronically or by facsimile.
EACH OF THE COMPANY, THE GUARANTOR, THE TRUSTEE AND THE HOLDERS BY ACCEPTANCE OF THE NOTES HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS SUPPLEMENTAL INDENTURE, THE NOTES OR THE TRANSACTION CONTEMPLATED HEREBY.
In order to comply with applicable tax laws (inclusive of rules, regulations and interpretations promulgated by competent authorities) related to the Indenture in effect from time to time (collectively, “Applicable Tax Law”) that a foreign financial institution, issuer, trustee, paying agent or other party is or has agreed to be subject to, the Company agrees (i) upon reasonable written request of the Trustee, to use commercially reasonable efforts to provide to the Trustee, to the extent available, sufficient information about the parties and/or transactions (including any modification to the terms of such transactions) so that the Trustee can determine whether it has tax-related obligations under Applicable Tax Law and (ii) that the Trustee shall be entitled to make any withholding or deduction in respect of taxes from payments under the Indenture to the extent necessary to comply with Applicable Tax Law for which the Trustee shall not have any liability. Nothing in the immediately preceding sentence shall be construed as obligating the Company to make any “gross up” payment or similar reimbursement in connection with a payment in respect of which amounts are so withheld or deducted. The terms of this paragraph shall survive the satisfaction and discharge of the Indenture.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the Parties have executed this Supplemental Indenture by their duly authorized signatories as of the date first above written.
| COX COMMUNICATIONS, INC., as Issuer | |||
| By: | /s/ Perley McBride | ||
| Name: | Perley McBride | ||
| Title: | Executive Vice President and Chief Financial Officer | ||
| By: | /s/ Charles L. Odom | ||
| Name: | Charles L. Odom | ||
| Title: | Vice President and Treasurer | ||
[Signature Page to Twenty-First Supplemental Indenture]
| COX ENTERPRISES, INC., as Guarantor | ||
| By: | /s/ Maria L. Friedman | |
| Name: | Maria L. Friedman | |
| Title: | Executive Vice President, Finance | |
| By: | /s/ Charles L. Odom | |
| Name: | Charles L. Odom | |
| Title: | Senior Vice President, Corporate Finance & Treasurer | |
[Signature Page to Twenty-First Supplemental Indenture]
| THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee | |||
| By: | /s/ Michael C. Jenkins | ||
| Name: | Michael C. Jenkins | ||
| Title: | Vice President | ||
[Signature Page to Twenty-First Supplemental Indenture]
EXHIBIT A-1
[FORM OF FACE OF SECURITY]
[TRANSFER RESTRICTION LEGEND]
[THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS A NON-U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH THE LAWS APPLICABLE TO SUCH PURCHASER IN THE JURISDICTION IN WHICH SUCH PURCHASE IS MADE AND (2) AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) THAT IS ONE YEAR AFTER THE LATEST OF THE ISSUE DATE HEREOF, THE ORIGINAL ISSUE DATE OF ANY ADDITIONAL NOTES (AS DEFINED IN THE INDENTURE GOVERNING THIS SECURITY) AND THE LAST DATE ON WHICH THE COMPANY OR ANY OF ITS AFFILIATES WERE THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE COMPANY, THE GUARANTOR OR ANY SUBSIDIARY THEREOF, (B) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH THE LAWS APPLICABLE TO IT IN THE JURISDICTION IN WHICH SUCH PURCHASE IS MADE, (D) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY’S AND THE TRUSTEE’S, OR REGISTRAR’S, AS APPLICABLE, RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (C) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE FOREGOING CASES, A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE OR REGISTRAR. THIS LEGEND WILL BE REMOVED UPON THE WRITTEN REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.]
| A-1-1 |
[GLOBAL NOTES LEGEND]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON 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.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS, IN WHOLE BUT NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN ARTICLE TWO OF THE TWENTY-FIRST SUPPLEMENTAL INDENTURE REFERRED TO ON THE REVERSE HEREOF.]
| A-1-2 |
| No. R- | PRINCIPAL AMOUNT |
| CUSIP No. 224044 CT2 | $ |
COX COMMUNICATIONS, INC.
5.800% Notes due 2053
COX COMMUNICATIONS, INC., a Delaware corporation (hereinafter called the “Company,” which term includes any successor corporation under the Indenture referred to below), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of [ ] ($ ) on December 15, 2053 (the “Maturity Date”), unless previously redeemed, and to pay interest thereon from January 19, 2024 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, payable semiannually on June 15 and December 15 of each year (each, an “Interest Payment Date”), commencing June 15, 2024 at the rate of 5.800% per annum, until the principal hereof is paid or duly made available for payment. Interest shall be computed on the basis of a 360-day year of twelve 30-day months. The interest so payable and punctually paid or duly provided for on any Interest Payment Date will, as provided in the Indenture, be paid to the Person in whose name this Note (or one or more predecessor securities) is registered at the close of business on the regular record date for such interest, which shall be June 1 or December 1 (whether or not a Business Day), as the case may be, immediately preceding such Interest Payment Date. Any such interest which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date shall forthwith cease to be payable to the registered Holder hereof on the relevant regular record date by virtue of having been such Holder, and may be paid to the Person in whose name this Note (or one or more predecessor securities) is registered at the close of business on a subsequent special record date (which shall be not more than 15 days and not less than 10 days before the payment date) for the payment of such defaulted interest to be fixed by the Trustee, notice whereof shall be given to the Holders of Notes of this series not less than 10 days prior to such special record date, or may be paid at any time in any other lawful manner, all as more fully provided in such Indenture. If any Interest Payment Date, Redemption Date or the Maturity Date falls on a day that is not a Business Day, the required payment shall be made on the next Business Day as if it were made on the date such payment was due and no interest shall accrue on the amount so payable for the period from and after such Interest Payment Date, Redemption Date or the Maturity Date, as the case may be, to such next Business Day. Payments of principal, premium, if any, and interest hereunder shall be made in such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts and shall be made immediately available to the Holder (as defined below) hereof.
This Note is one of the duly authorized series of Debt Securities of the Company, designated as the Company’s “5.800% Notes due 2053” (the “Notes”), initially limited to an aggregate principal amount of $850,000,000, all issued or to be issued under and pursuant to an Indenture dated as of June 27, 1995 (the “Original Indenture”), as supplemented by the Twenty-First Supplemental Indenture dated as of January 19, 2024 (the “Twenty-First Supplemental Indenture” and, together with the Original Indenture, the “Indenture”), duly executed and delivered by the Company and Cox Enterprises, Inc., a Delaware corporation, as guarantor (the “Guarantor”), to The Bank of New York Mellon Trust Company, N.A, as trustee (hereinafter referred to as the “Trustee”), to which Indenture and all indentures supplemental thereto reference is hereby made for a description of the rights, limitation of rights, obligations, duties and immunities thereunder of the Trustee, the Company, the Guarantor and the Holders (the words “Holders” or “Holder” meaning the registered holders or registered holder of the Notes).
| A-1-3 |
The Notes and the obligations of the Company thereunder and under the Indenture shall be fully and unconditionally guaranteed on a senior unsecured basis by the Guarantor (the “Guarantee”). The Guarantee will be automatically and unconditionally released and discharged upon the occurrence of certain events without any action required on the part of the Trustee or any Holder in accordance with the terms of the Twenty-First Supplemental Indenture.
Prior to the Par Call Date, this Note will be redeemable at the option of the Company, in whole or in part, at any time and from time to time, at a Redemption Price (expressed as a percentage of principal amount and rounded to three decimal places) equal to the greater of (i) (a) the sum of the present values of the remaining scheduled payments of principal and interest thereon discounted to the Redemption Date (assuming this Note matured on the Par Call Date) on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as defined below) plus 25 basis points, less (b) interest accrued to the Redemption Date, and (ii) 100% of the principal amount of this Note to be redeemed, plus, in either case, accrued and unpaid interest thereon to the Redemption Date. On or after the Par Call Date, this Note will be redeemable at the option of the Company, in whole or in part, at any time and from time to time, at a Redemption Price equal to 100% of the principal amount of this Note being redeemed, plus accrued and unpaid interest thereon to the Redemption Date.
“Par Call Date” means June 15, 2053.
“Treasury Rate” means, with respect to any Redemption Date, the yield determined by the Company in accordance with the following paragraphs.
The Treasury Rate shall be determined by the Company after 4:15 p.m., New York City time (or after such time as yields on U.S. government securities are posted daily by the Board of Governors of the Federal Reserve System), on the third business day preceding the Redemption Date based upon the yield or yields for the most recent day that appear after such time on such day in the most recent statistical release published by the Board of Governors of the Federal Reserve System designated as “Selected Interest Rates (Daily) — H.15” (or any successor designation or publication) (H.15) under the caption “U.S. government securities– Treasury constant maturities– Nominal” (or any successor caption or heading). In determining the Treasury Rate, the Company shall select, as applicable: (i) the yield for the Treasury constant maturity on H.15 exactly equal to the period from the Redemption Date to the Par Call Date (the Remaining Life); or (ii) if there is no such Treasury constant maturity on H.15 exactly equal to the Remaining Life, the two yields — one yield corresponding to the Treasury constant maturity on H.15 immediately shorter than and one yield corresponding to the Treasury constant maturity on H.15 immediately longer than the Remaining Life — and shall interpolate to the Par Call Date on a straight-line basis (using the actual number of days) using such yields and rounding the result to three decimal places; or (iii) if there is no such Treasury constant maturity on H.15 shorter than or longer than the Remaining Life, the yield for the single Treasury constant maturity on H.15 closest to the Remaining Life. For purposes of this paragraph, the applicable Treasury constant maturity or maturities on H.15 shall be deemed to have a maturity date equal to the relevant number of months or years, as applicable, of such Treasury constant maturity from the Redemption Date.
| A-1-4 |
If on the third business day preceding the Redemption Date H.15 or any successor designation or publication is no longer published, the Company shall calculate the Treasury Rate based on the rate per annum equal to the semi-annual equivalent yield to maturity at 11:00 a.m., New York City time, on the second business day preceding such Redemption Date of the United States Treasury security maturing on, or with a maturity that is closest to, the Par Call Date, as applicable. If there is no United States Treasury security maturing on the Par Call Date but there are two or more United States Treasury securities with a maturity date equally distant from the Par Call Date, one with a maturity date preceding the Par Call Date and one with a maturity date following the Par Call Date, the Company shall select the United States Treasury security with a maturity date preceding the Par Call Date. If there are two or more United States Treasury securities maturing on the Par Call Date or two or more United States Treasury securities meeting the criteria of the preceding sentence, the Company shall select from among these two or more United States Treasury securities the United States Treasury security that is trading closest to par based upon the average of the bid and asked prices for such United States Treasury securities at 11:00 a.m., New York City time. In determining the Treasury Rate in accordance with the terms of this paragraph, the semi-annual yield to maturity of the applicable United States Treasury security shall be based upon the average of the bid and asked prices (expressed as a percentage of principal amount) at 11:00 a.m., New York City time, of such United States Treasury security, and rounded to three decimal places.
The Company’s actions and determinations in determining the Redemption Price shall be conclusive and binding for all purposes, absent manifest error.
Notice of any redemption will be mailed or electronically delivered (or otherwise transmitted in accordance with the depositary’s procedures) at least 10 days but not more than 60 days before the Redemption Date to each holder of notes to be redeemed.
In the case of a partial redemption, selection of this Note for redemption will be made pro rata, by lot or by such other method as the Trustee in its sole discretion deems appropriate and fair. No Note of a principal amount of $2,000 or less will be redeemed in part. If any Note is to be redeemed in part only, the notice of redemption that relates to this Note will state the portion of the principal amount of this Note to be redeemed. A new note in a principal amount equal to the unredeemed portion of this Note will be issued in the name of the holder of this Note upon surrender for cancellation of this Note. For so long as this Note is held by DTC (or another depositary), the redemption of this Note shall be done in accordance with the policies and procedures of the depositary.
Unless the Company defaults in payment of the Redemption Price, on and after the Redemption Date, interest will cease to accrue on this Note or portions thereof called for redemption.
If money sufficient to pay the Redemption Price and accrued and unpaid interest on the principal amount of this Note to be redeemed on the Redemption Date is deposited with the Trustee or Paying Agent on or before the Redemption Date and certain other conditions specified in the Indenture are satisfied, then on or after such date, interest will cease to accrue on the principal amount of this Note called for redemption.
Any notice of redemption may, at the Company’s discretion, be subject to the satisfaction of one or more conditions precedent, and if such notice of redemption is conditioned upon the occurrence of one or more conditions precedent, such notice shall state the nature of such conditions precedent.
A-1-5
Except as provided above, this Note is not redeemable by the Company prior to maturity.
This Note is not subject to any sinking fund.
Upon the occurrence of a Change of Control Repurchase Event, unless the Company has redeemed this Note or the Company has defeased this Security or satisfied and discharged this Note, the Holder of this Note shall have the right to require that the Company purchase all or a portion (such principal amount to be equal to $2,000 or integral multiples of $1,000 in excess thereof), of this Note at a purchase price in cash in an amount equal to 101% of the principal amount thereof, plus accrued but unpaid interest, if any, to, but not including, the date of purchase. Within 30 days following any Change of Control Repurchase Event, the Company shall deliver a notice to each Holder, in accordance with Section 40l(b) of the Twenty-First Supplemental Indenture, with a copy to the Trustee, which notice shall govern the terms of the Change of Control Offer. Notice of any redemption pursuant to the Change of Control Offer will be mailed or delivered electronically at least 15 days but not more than 60 days before the Redemption Date to the Holder hereof in accordance with the Twenty-First Supplemental Indenture.
In case an Event of Default shall occur and be continuing, the principal hereof may be declared, and upon such declaration shall become, due and payable, in the manner, with the effect and subject to the conditions provided in the Indenture.
Subject to certain exceptions set forth in the Indenture, (i) the Indenture may be amended with respect to the Notes with the consent of the Holders of at least a majority in principal amount outstanding of the Notes and (ii) any default or noncompliance with any provisions applicable to the Notes may be waived with the consent of the Holders of a majority in principal amount outstanding of the Notes. Subject to certain exceptions set forth in the Indenture, without the consent of any Holder, the Company and the Trustee may amend the Indenture or the Notes to, among other things, cure any ambiguity, defect or inconsistency, or to provide for the assumption by a successor person of the obligations of the Company under the Indenture, or to add additional covenants or surrender any right or power conferred on the Company, or to establish the form or terms of the Notes, or to appoint a successor Trustee or provide for administration of the trust by more than one Trustee, or to add to, delete from or revise the conditions, limitations, and restrictions on the authorized amount, terms or purposes of issue, authentication and delivery of the Notes or to add any additional event of default, or to modify the provisions of the Indenture as shall be necessary to facilitate the defeasance and discharge of the Notes as shall not adversely affect any Holders, or to secure the Notes, or to make provisions with respect to exchange rights of Holders, or to make any change that does not adversely affect the rights of any Holder.
Subject to certain conditions, the Company at any time may terminate some or all of its obligations and the obligations of the Guarantor under the Notes and the Indenture if the Company deposits with the Trustee money or U.S. Government Obligations for the payment of principal, premium, if any, and interest on the Notes to the Maturity Date.
If money for the payment of principal or interest remains unclaimed for two years, the Trustee or Paying Agent shall pay the money back to the Company at its request unless an abandoned property law designates another Person. After any such payment, Holders entitled to the money must look only to the Company and not to the Trustee for payment.
A-1-6
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and premium, if any, and interest on this Note at the place, at the respective times, at the rate, and in the coin or currency herein prescribed.
No director, officer, employee or stockholder, as such, of the Company or the Guarantor shall have any liability for any obligations of the Company under this Note or the Indenture or the obligations of the Guarantor under the Indenture, as applicable, or for any claim based on, in respect of or by reason of such obligations or their creation. Each Holder, by accepting this Note, waives and releases all such liability. The waiver and release are part of the consideration for the issue of this Note.
This Note and the Indenture shall be governed by and construed in accordance with the law of the State of New York applicable to agreements made or instruments entered into and, in each case, performed in said state.
Ownership of this Note shall be proved by the register for the Notes kept by the Registrar. The Company, the Trustee and any agent of the Company may treat the Person in whose name a Note is registered as the absolute owner thereof for all purposes.
Pursuant to a recommendation promulgated by the Committee on Uniform Securities Identification Procedures (“CUSIP”), the Company has caused a CUSIP number to be printed on this Note and has directed the Trustee to use the CUSIP number as a convenience to Holders. No representation is made as to the correctness of such numbers and reliance may be placed only on the other identification numbers printed on this Note.
Terms used herein without definition that are defined in the Indenture shall have the meanings assigned to them in the Indenture.
Unless the Certificate of Authentication hereon has been executed by the Trustee under the Indenture referred to herein by the manual, facsimile or electronic signature of one of its authorized officers, or on behalf of the Trustee by the manual, facsimile or electronic signature of an authorized officer of the Trustee’s authenticating agent, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
[Remainder of Page Intentionally Left Blank]
A-1-7
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed, manually or by facsimile.
Date: January 19, 2024
| COX COMMUNICATIONS, INC. | |||
| By: | |||
| Name: | Perley McBride | ||
| Title: | Executive Vice President and Chief Financial Officer | ||
| By: | |||
| Name: | Charles L. Odom | ||
| Title: | Vice President and Treasurer | ||
[Signature Page to Global Note]
CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated therein referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
as Trustee
| By: | ||
| Authorized Signatory | ||
| Dated: | ||
[Signature Page to Global Note]
ASSIGNMENT FORM
| FOR VALUE RECEIVED, the undersigned hereby sell(s) assign(s) and transfer(s) unto | |
| Please insert social security number 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 attorney to transfer said Note of Cox Communications, Inc. on the books of Cox Communications, Inc. 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 this Note in every particular without alteration or enlargement or any change whatsoever. The Signature must be guaranteed by an “eligible guarantor institution meeting the requirements of the Registrar, which requirements include memberships or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934.
EXHIBIT A-2
[FORM OF FACE OF SECURITY]
[TRANSFER RESTRICTION LEGEND]
[THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS A NON-U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH THE LAWS APPLICABLE TO SUCH PURCHASER IN THE JURISDICTION IN WHICH SUCH PURCHASE IS MADE AND (2) AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) THAT IS 40 DAYS AFTER THE LATEST OF THE ISSUE DATE HEREOF, THE ORIGINAL ISSUE DATE OF ANY ADDITIONAL NOTES (AS DEFINED IN THE INDENTURE GOVERNING THIS SECURITY) AND THE DATE ON WHICH THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) WAS FIRST OFFERED TO PERSONS OTHER THAN DISTRIBUTORS (AS DEFINED IN RULE 902 OF REGULATION S) IN RELIANCE ON REGULATION S, ONLY (A) TO THE COMPANY, THE GUARANTOR OR ANY SUBSIDIARY THEREOF, (B) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER’’ AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH THE LAWS APPLICABLE TO IT IN THE JURISDICTION IN WHICH SUCH PURCHASE IS MADE, (D) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY’S AND THE TRUSTEE’S, OR REGISTRAR’S, AS APPLICABLE, RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (C) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE FOREGOING CASES, A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE OR REGISTRAR. THIS LEGEND WILL BE REMOVED UPON THE WRITTEN REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE. BY ITS ACQUISITION HEREOF, THE HOLDER HEREOF REPRESENTS THAT IT IS NOT A U.S. PERSON NOR IS IT PURCHASING FOR THE ACCOUNT OF A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT.
A-2-1
THIS GLOBAL NOTE IS A TEMPORARY GLOBAL NOTE FOR PURPOSES OF REGULATION S UNDER THE SECURITIES ACT. NEITHER THIS TEMPORARY GLOBAL NOTE NOR ANY INTEREST HEREIN MAY BE OFFERED, SOLD OR DELIVERED, EXCEPT AS PERMITTED UNDER THE INDENTURE REFERRED TO BELOW.]
[GLOBAL NOTES LEGEND]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON 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.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS, IN WHOLE BUT NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN ARTICLE TWO OF THE TWENTY-FIRST SUPPLEMENTAL INDENTURE REFERRED TO ON THE REVERSE HEREOF.]
A-2-2
| No. R- | PRINCIPAL AMOUNT | |
| CUSIP No. U22018 BC5 | $ |
COX COMMUNICATIONS, INC.
5.800% Notes due 2053
COX COMMUNICATIONS, INC., a Delaware corporation (hereinafter called the “Company,” which term includes any successor corporation under the Indenture referred to below), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of [ ] ($ ) on December 15, 2053 (the “Maturity Date”), unless previously redeemed, and to pay interest thereon from January 19, 2024 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, payable semiannually on June 15 and December 15 of each year (each, an “Interest Payment Date”), commencing June 15, 2024 at the rate of 5.800% per annum, until the principal hereof is paid or duly made available for payment. Interest shall be computed on the basis of a 360-day year of twelve 30-day months. The interest so payable and punctually paid or duly provided for on any Interest Payment Date will, as provided in the Indenture, be paid to the Person in whose name this Note (or one or more predecessor securities) is registered at the close of business on the regular record date for such interest, which shall be June 1 or December l (whether or not a Business Day), as the case may be, immediately preceding such Interest Payment Date. Any such interest which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date shall forthwith cease to be payable to the registered Holder hereof on the relevant regular record date by virtue of having been such Holder, and may be paid to the Person in whose name this Note (or one or more predecessor securities) is registered at the close of business on a subsequent special record date (which shall be not more than 15 days and not less than 10 days before the payment date) for the payment of such defaulted interest to be fixed by the Trustee, notice whereof shall be given to the Holders of Notes of this series not less than 10 days prior to such special record date, or may be paid at any time in any other lawful manner, all as more fully provided in such Indenture. If any Interest Payment Date, Redemption Date or the Maturity Date falls on a day that is not a Business Day, the required payment shall be made on the next Business Day as if it were made on the date such payment was due and no interest shall accrue on the amount so payable for the period from and after such Interest Payment Date, Redemption Date or the Maturity Date, as the case may be, to such next Business Day. Payments of principal, premium, if any, and interest hereunder shall be made in such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts and shall be made immediately available to the Holder (as defined below) hereof.
This Note is one of the duly authorized series of Debt Securities of the Company, designated as the Company’s “5.800% Notes due 2053” (the “Notes”), initially limited to an aggregate principal amount of $850,000,000, all issued or to be issued under and pursuant to an Indenture dated as of June 27, 1995 (the “Original Indenture”), as supplemented by the Twenty-First Supplemental Indenture dated as of January 19, 2024 (the “Twenty-First Supplemental Indenture” and, together with the Original Indenture, the “Indenture”), duly executed and delivered by the Company and Cox Enterprises, Inc., a Delaware corporation, as guarantor (the “Guarantor”), to The Bank of New York Mellon Trust Company, N.A, as trustee (hereinafter referred to as the “Trustee”), to which Indenture and all indentures supplemental thereto reference is hereby made for a description of the rights, limitation of rights, obligations, duties and immunities thereunder of the Trustee, the Company, the Guarantor and the Holders (the words “Holders” or “Holder” meaning the registered holders or registered holder of the Notes).
A-2-3
The Notes and the obligations of the Company thereunder and under the Indenture shall be fully and unconditionally guaranteed on a senior unsecured basis by the Guarantor (the “Guarantee”). The Guarantee will be automatically and unconditionally released and discharged upon the occurrence of certain events without any action required on the part of the Trustee or any Holder in accordance with the terms of the Twenty-First Supplemental Indenture.
Prior to the Par Call Date, this Note will be redeemable at the option of the Company, in whole or in part, at any time and from time to time, at a Redemption Price (expressed as a percentage of principal amount and rounded to three decimal places) equal to the greater of (i) (a) the sum of the present values of the remaining scheduled payments of principal and interest thereon discounted to the Redemption Date (assuming this Note matured on the Par Call Date) on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as defined below) plus 25 basis points, less (b) interest accrued to the Redemption Date, and (ii) 100% of the principal amount of this Note to be redeemed, plus, in either case, accrued and unpaid interest thereon to the Redemption Date. On or after the Par Call Date, this Note will be redeemable at the option of the Company, in whole or in part, at any time and from time to time, at a Redemption Price equal to 100% of the principal amount of this Note being redeemed, plus accrued and unpaid interest thereon to the Redemption Date.
“Par Call Date” means June 15, 2053.
“Treasury Rate” means, with respect to any Redemption Date, the yield determined by the Company in accordance with the following paragraphs.
The Treasury Rate shall be determined by the Company after 4:15 p.m., New York City time (or after such time as yields on U.S. government securities are posted daily by the Board of Governors of the Federal Reserve System), on the third business day preceding the Redemption Date based upon the yield or yields for the most recent day that appear after such time on such day in the most recent statistical release published by the Board of Governors of the Federal Reserve System designated as “Selected Interest Rates (Daily) — H.15” (or any successor designation or publication) (H.15) under the caption “U.S. government securities– Treasury constant maturities– Nominal” (or any successor caption or heading). In determining the Treasury Rate, the Company shall select, as applicable: (i) the yield for the Treasury constant maturity on H.15 exactly equal to the period from the Redemption Date to the Par Call Date (the Remaining Life); or (ii) if there is no such Treasury constant maturity on H.15 exactly equal to the Remaining Life, the two yields — one yield corresponding to the Treasury constant maturity on H.15 immediately shorter than and one yield corresponding to the Treasury constant maturity on H.15 immediately longer than the Remaining Life and shall interpolate to the Par Call Date on a straight-line basis (using the actual number of days) using such yields and rounding the result to three decimal places; or (iii) if there is no such Treasury constant maturity on H.15 shorter than or longer than the Remaining Life, the yield for the single Treasury constant maturity on H.15 closest to the Remaining Life. For purposes of this paragraph, the applicable Treasury constant maturity or maturities on H.15 shall be deemed to have a maturity date equal to the relevant number of months or years, as applicable, of such Treasury constant maturity from the Redemption Date.
A-2-4
If on the third business day preceding the Redemption Date H.15 or any successor designation or publication is no longer published, the Company shall calculate the Treasury Rate based on the rate per annum equal to the semi-annual equivalent yield to maturity at 11:00 a.m., New York City time, on the second business day preceding such Redemption Date of the United States Treasury security maturing on, or with a maturity that is closest to, the Par Call Date, as applicable. If there is no United States Treasury security maturing on the Par Call Date but there are two or more United States Treasury securities with a maturity date equally distant from the Par Call Date, one with a maturity date preceding the Par Call Date and one with a maturity date following the Par Call Date, the Company shall select the United States Treasury security with a maturity date preceding the Par Call Date. If there are two or more United States Treasury securities maturing on the Par Call Date or two or more United States Treasury securities meeting the criteria of the preceding sentence, the Company shall select from among these two or more United States Treasury securities the United States Treasury security that is trading closest to par based upon the average of the bid and asked prices for such United States Treasury securities at 11:00 a.m., New York City time. In determining the Treasury Rate in accordance with the terms of this paragraph, the semi-annual yield to maturity of the applicable United States Treasury security shall be based upon the average of the bid and asked prices (expressed as a percentage of principal amount) at 11:00 a.m., New York City time, of such United States Treasury security, and rounded to three decimal places.
The Company’s actions and determinations in determining the Redemption Price shall be conclusive and binding for all purposes, absent manifest error.
Notice of any redemption will be mailed or electronically delivered (or otherwise transmitted in accordance with the depositary’s procedures) at least 10 days but not more than 60 days before the Redemption Date to each holder of notes to be redeemed.
In the case of a partial redemption, selection of this Note for redemption will be made pro rata, by lot or by such other method as the Trustee in its sole discretion deems appropriate and fair. No Note of a principal amount of $2,000 or less will be redeemed in part. If any Note is to be redeemed in part only, the notice of redemption that relates to this Note will state the portion of the principal amount of this Note to be redeemed. A new note in a principal amount equal to the unredeemed portion of this Note will be issued in the name of the holder of this Note upon surrender for cancellation of this Note. For so long as this Note is held by DTC (or another depositary), the redemption of this Note shall be done in accordance with the policies and procedures of the depositary.
Unless the Company defaults in payment of the Redemption Price, on and after the Redemption Date, interest will cease to accrue on this Note or portions thereof called for redemption.
If money sufficient to pay the Redemption Price and accrued and unpaid interest on the principal amount of this Note to be redeemed on the Redemption Date is deposited with the Trustee or Paying Agent on or before the Redemption Date and certain other conditions specified in the Indenture are satisfied, then on or after such date, interest will cease to accrue on the principal amount of this Note called for redemption.
Any notice of redemption may, at the Company’s discretion, be subject to the satisfaction of one or more conditions precedent, and if such notice of redemption is conditioned upon the occurrence of one or more conditions precedent, such notice shall state the nature of such conditions precedent.
A-2-5
Except as provided above, this Note is not redeemable by the Company prior to maturity.
This Note is not subject to any sinking fund.
Upon the occurrence of a Change of Control Repurchase Event, unless the Company has redeemed this Note or the Company has defeased this Security or satisfied and discharged this Note, the Holder of this Note shall have the right to require that the Company purchase all or a portion (such principal amount to be equal to $2,000 or integral multiples of $1,000 in excess thereof), of this Note at a purchase price in cash in an amount equal to 101% of the principal amount thereof, plus accrued but unpaid interest, if any, to, but not including, the date of purchase. Within 30 days following any Change of Control Repurchase Event, the Company shall deliver a notice to each Holder, in accordance with Section 40l(b) of the Twenty-First Supplemental Indenture, with a copy to the Trustee, which notice shall govern the terms of the Change of Control Offer. Notice of any redemption pursuant to the Change of Control Offer will be mailed or delivered electronically at least 15 days but not more than 60 days before the Redemption Date to the Holder hereof in accordance with the Twenty-First Supplemental Indenture.
In case an Event of Default shall occur and be continuing, the principal hereof may be declared, and upon such declaration shall become, due and payable, in the manner, with the effect and subject to the conditions provided in the Indenture.
Subject to certain exceptions set forth in the Indenture, (i) the Indenture may be amended with respect to the Notes with the consent of the Holders of at least a majority in principal amount outstanding of the Notes and (ii) any default or noncompliance with any provisions applicable to the Notes may be waived with the consent of the Holders of a majority in principal amount outstanding of the Notes. Subject to certain exceptions set forth in the Indenture, without the consent of any Holder, the Company and the Trustee may amend the Indenture or the Notes to, among other things, cure any ambiguity, defect or inconsistency, or to provide for the assumption by a successor person of the obligations of the Company under the Indenture, or to add additional covenants or surrender any right or power conferred on the Company, or to establish the form or terms of the Notes, or to appoint a successor Trustee or provide for administration of the trust by more than one Trustee, or to add to, delete from or revise the conditions, limitations, and restrictions on the authorized amount, terms or purposes of issue, authentication and delivery of the Notes or to add any additional event of default, or to modify the provisions of the Indenture as shall be necessary to facilitate the defeasance and discharge of the Notes as shall not adversely affect any Holders, or to secure the Notes, or to make provisions with respect to exchange rights of Holders, or to make any change that does not adversely affect the rights of any Holder.
Subject to certain conditions, the Company at any time may terminate some or all of its obligations and the obligations of the Guarantor under the Notes and the Indenture if the Company deposits with the Trustee money or U.S. Government Obligations for the payment of principal, premium, if any, and interest on the Notes to the Maturity Date.
If money for the payment of principal or interest remains unclaimed for two years, the Trustee or Paying Agent shall pay the money back to the Company at its request unless an abandoned property law designates another Person. After any such payment, Holders entitled to the money must look only to the Company and not to the Trustee for payment.
A-2-6
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and premium, if any, and interest on this Note at the place, at the respective times, at the rate, and in the coin or currency herein prescribed.
No director, officer, employee or stockholder, as such, of the Company or the Guarantor shall have any liability for any obligations of the Company under this Note or the Indenture or the obligations of the Guarantor under the Indenture, as applicable, or for any claim based on, in respect of or by reason of such obligations or their creation. Each Holder, by accepting this Note, waives and releases all such liability. The waiver and release are part of the consideration for the issue of this Note.
This Note and the Indenture shall be governed by and construed in accordance with the law of the State of New York applicable to agreements made or instruments entered into and, in each case, performed in said state.
Ownership of this Note shall be proved by the register for the Notes kept by the Registrar. The Company, the Trustee and any agent of the Company may treat the Person in whose name a Note is registered as the absolute owner thereof for all purposes.
Pursuant to a recommendation promulgated by the Committee on Uniform Securities Identification Procedures (“CUSIP”), the Company has caused a CUSIP number to be printed on this Note and has directed the Trustee to use the CUSIP number as a convenience to Holders. No representation is made as to the correctness of such numbers and reliance may be placed only on the other identification numbers printed on this Note.
Terms used herein without definition that are defined in the Indenture shall have the meanings assigned to them in the Indenture.
Unless the Certificate of Authentication hereon has been executed by the Trustee under the Indenture referred to herein by the manual, facsimile or electronic signature of one of its authorized officers, or on behalf of the Trustee by the manual, facsimile or electronic signature of an authorized officer of the Trustee’s authenticating agent, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
[Remainder of Page Intentionally Left Blank]
A-2-7
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed, manually or by facsimile.
Date: January 19, 2024
| COX COMMUNICATIONS, INC. | |||
| By: | |||
| Name: | Perley McBride | ||
| Title: | Executive Vice President and Chief Financial Officer | ||
| By: | |||
| Name: | Charles L. Odom | ||
| Title: | Vice President and Treasurer | ||
[Signature Page to Global Note]
CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated therein referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
as Trustee
| By: | ||
| Authorized Signatory | ||
| Dated: | ||
[Signature Page to Global Note]
ASSIGNMENT FORM
| FOR VALUE RECEIVED, the undersigned hereby sell(s) assign(s) and transfer(s) unto | |
| Please insert social security number 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 attorney to transfer said Note of Cox Communications, Inc. on the books of Cox Communications, Inc. 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 this Note in every particular without alteration or enlargement or any change whatsoever. The Signature must be guaranteed by an “eligible guarantor institution meeting the requirements of the Registrar, which requirements include memberships or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934.
EXHIBIT B-1
Transfer Certificate
In connection with a transfer of any of the principal amount of the $ principal amount of the % Notes due 20 (the “Notes”) of Cox Communications, Inc. (the “Company”) within the period prior to the expiration of the holding period applicable to the sales thereof under Rule 144 under the Securities Act of 1933, as amended (the “Securities Act”) (or any successor provision), the undersigned registered owner of this Note hereby certifies with respect to $principal amount of the above-captioned securities presented or surrendered on the date hereof (the “Surrendered Notes”) for registration of transfer, or for exchange where the securities deliverable upon such exchange are to be registered in a name other than that of the undersigned registered owner (each such transaction being a “transfer”), that such transfer complies with the restrictive legend set forth on the face of the Surrendered Notes for the reason checked below:
| ¨ | The transfer of the Surrendered Notes is made to the Company, Cox Enterprises, Inc. or any Subsidiary thereof; |
| ¨ | The transfer of the Surrendered Notes complies with Rule 144A under the Securities Act; |
| ¨ | The transfer of the Surrendered Notes is pursuant to a registration statement which has been declared effective under the Securities Act; |
| ¨ | The transfer of the Surrendered Notes is pursuant to an offer and sale to a non-U.S. person that occurs outside the United States within the meaning of Regulation S under the Securities Act and in accordance with the laws applicable to it in the jurisdiction in which such purchase is made; |
| ¨ | The transfer of the Surrendered Notes is pursuant to another available exemption from the registration requirements of the Securities Act. |
and unless the box below is checked, the undersigned confirms that, to the undersigned’s knowledge, such Notes are not being transferred to an “affiliate” of the Company as defined in Rule 144 under the Securities Act (an “Affiliate”).
| ¨ | The transferee is an Affiliate of the Company. |
| DATE: | |||
| Signature(s) |
(If the registered owner is a corporation, partnership
or fiduciary, the title of the Person signing on behalf
of such registered owner must be stated.)
B-1-1
EXHIBIT B-2
Form of Letter to be Delivered by Accredited Investors
Cox Communications, Inc.
6205-B Peachtree Dunwoody Road, NE
Atlanta, Georgia 30328
Attention: Treasurer
The Bank of New York Mellon Trust Company, N.A., as Registrar
500 Ross Street, 12th Floor
Pittsburgh, PA 15262
Attention: Corporate Trust Office
Dear Sirs:
We are delivering this letter in connection with the proposed transfer of $ principal amount of the % Notes due 20 (the “Notes”) of Cox Communications, Inc. (the “Company”).
We hereby confirm that:
(i) we are an “accredited investor” within the meaning of Rule 501(a)(l), (2), (3) or (7) of Regulation D under the Securities Act of 1933, as amended (the “Securities Act”), or an entity in which all of the equity owners are accredited investors within the meaning of Rule 501(a)(l ), (2), (3) or (7) of Regulation D under the Securities Act (an “Institutional Accredited Investor”);
(ii) (A) the purchase of Notes by us is for our own account or for the account of one or more other Institutional Accredited Investors or as fiduciary for the account of one or more trusts, each of which is an “accredited investor” within the meaning of Rule 501(a)(7) under the Securities Act and for each of which we exercise sole investment discretion or (B) we are a “bank,” within the meaning of Section 3(a)(2) of the Securities Act, or a “savings and loan association” or other institution described in Section 3(a)(5)(A) of the Securities Act that is acquiring Notes as fiduciary for the account of one or more institutions for which we exercise sole investment discretion;
(iii) we will acquire Notes having a minimum principal amount of not less than $100,000 for our own account or for any separate account for which we are acting;
(iv) we have such knowledge and experience in financial and business matters that we are capable of evaluating the merits and risks of purchasing Notes; and
(v) we are not acquiring Notes with a view to distribution thereof or with any present intention of offering or selling Notes, except as permitted below; provided that the disposition of our property and property of any accounts for which we are acting as fiduciary shall remain at all times within our control.
B-2-1
We understand that the Notes were originally offered and sold in a transaction not involving any public offering within the United States within the meaning of the Securities Act and that the Notes have not been registered under the Securities Act, and we agree, on our own behalf and on behalf of each account for which we acquire any Notes, that we will offer, sell or otherwise transfer such Notes, or any beneficial interest therein, prior to the date (the “Resale Restriction Termination Date”) that is (a) one year after the latest of (x) the original issue date of the Notes, (y) the original issue date of any Additional Notes (as defined in the indenture governing the Notes) and (z) the last date on which the Issuer or any of its Affiliates were the owner of such Notes (or any predecessor thereof), and (b) such later date, if any, as may be required by applicable laws only:
(1) to the Company or any Subsidiary thereof, or
(2) for as long as the Notes are eligible for resale pursuant to Rule 144A, to a person we reasonably believe is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) that purchases for its own account or for the account of a qualified institutional buyer to which notice is given that the transfer is being made in reliance on Rule 144A, or
(3) pursuant to offers and sales to non-U.S. persons that occur outside the United States within the meaning of Regulation S under the Securities Act and in accordance with the laws applicable to us in the jurisdiction in which such purchase is made, or
(4) pursuant to a registration statement which has been declared effective under the Securities Act, or
(5) pursuant to another available exemption from the registration requirements of the Securities Act.
We acknowledge that the Company, others and you will rely upon our confirmations, acknowledgments and agreements set forth herein, and we agree to notify you promptly in writing if any of our representations or warranties herein ceases to be accurate and complete.
THIS LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK.
| (Name of Purchaser) | |||
| By: | |||
| Name: | |||
| Title: | |||
| Address: | |||
B-2-2
Exhibit 4.19
Execution Version
COX COMMUNICATIONS, INC.,
as Issuer
COX ENTERPRISES, INC.,
as Guarantor
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
as Trustee
TWENTY-SECOND SUPPLEMENTAL INDENTURE
Dated as of August 20, 2024
Supplement to Indenture
Dated as of June 27, 1995
Creating two series of Debt Securities designated
5.450% Notes due 2034
5.950% Notes due 2054
TWENTY-SECOND SUPPLEMENTAL INDENTURE, dated as of the 20th day of August, 2024, among COX COMMUNICATIONS, INC., a corporation existing under the laws of the State of Delaware, having its principal executive office located at 6205-B Peachtree Dunwoody Road, NE, Atlanta, Georgia 30328 (the "Company"), COX ENTERPRISES, INC., a corporation existing under the laws of the State of Delaware, having its principal executive office located at 6205-A Peachtree Dunwoody Road, NE, Atlanta, Georgia 30328 (the "Guarantor"), and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., a national banking association, having a designated corporate trust office located at 500 Ross Street, 12th Floor, Pittsburgh, Pennsylvania 15262, as trustee (the "Trustee");
WHEREAS, the Company has heretofore executed and delivered to the Trustee an Indenture, dated as of June 27, 1995 (the “Original Indenture” and, as amended by this Supplemental Indenture, the “Indenture”), providing for the issuance by the Company from time to time of its debentures, notes, bonds or other evidences of indebtedness (in the Original Indenture and herein called the “Debt Securities”), unlimited as to principal amount, to be issued in one or more series;
WHEREAS, the Company, in the exercise of the power and authority conferred upon and reserved to it under the provisions of the Original Indenture and pursuant to appropriate resolutions of the Company's Board of Directors, and the Guarantor, pursuant to appropriate resolutions of the Guarantor's Board of Directors, have duly determined to make, execute and deliver to the Trustee this Supplemental Indenture to the Original Indenture in order to establish the form and terms of, and to provide for the creation and issuance of, two new series of Debt Securities designated as the “5.450% Notes due 2034” in the initial aggregate principal amount of $750,000,000 (the “2034 Notes”) and the “5.950% Notes due 2054” in the initial aggregate principal amount of $750,000,000 (the “2054 Notes” and, together with the 2034 Notes, the “Notes”) and (ii) to establish the terms of, and to provide for the grant of, full and unconditional guarantees (the “Guarantees”) by the Guarantor of the Company's obligations with respect to the Notes and the Company's obligations under the Indenture in respect thereof;
WHEREAS, Section 9.01 of the Original Indenture provides, among other things, that the Company and the Trustee, at any time and from time to time, without the consent of any Holders, may enter into an indenture supplemental to the Original Indenture to establish the form or terms of Debt Securities of any series as permitted by Sections 2.01 and 2.03 of the Original Indenture and to add guarantees with respect to the Debt Securities of any series;
WHEREAS, all things necessary to make the Notes, when executed by the Company and authenticated and delivered by the Trustee and issued upon the terms and subject to the conditions hereinafter and in the Original Indenture set forth against payment therefor, the valid, binding and legal obligations of the Company and to make this Supplemental Indenture a valid, binding and legal agreement of the Company and the Guarantor, have been done;
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH that, in order to establish the form and terms of the series of Debt Securities designated as the "5.450% Notes due 2034" and the "5.950% Notes due 2054" and to provide for the Guarantees in respect thereof and for and in consideration of the premises and of the covenants contained in the Original Indenture and in this Supplemental Indenture and for other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of the Notes of each series, as follows:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101 Definitions. For all purposes of the Original Indenture and this Supplemental Indenture relating to each series of Debt Securities (consisting of the Notes) created hereby and the Guarantees in respect thereof, except as otherwise expressly provided or unless the context otherwise requires, the terms defined in this Article have the meanings assigned to them in this Article. Each capitalized term that is used in the Original Indenture and this Supplemental Indenture but not defined herein shall have the meaning specified in the Original Indenture.
"Additional Notes" has the meaning specified in Section 202 of this Supplemental Indenture.
"Agent Members" has the meaning specified in Section 209(e)(v) of this Supplemental Indenture.
"Applicable Procedures" means, with respect to any transfer or transaction involving a Global Note or beneficial interest therein, the rules and procedures of the Depositary for such Note, in each case to the extent applicable to such transaction and as in effect from time to time.
"Below Investment Grade Downgrade Event" means, with respect to either series of Notes, the rating on such Notes is lowered in respect of a Change of Control and such Notes are rated below an Investment Grade Rating by each of the Rating Agencies on any date from the first public announcement by the Company of any Change of Control (or pending Change of Control) and ending 60 days following consummation of such Change of Control (which period shall be extended until the ratings are announced if, during such 60-day period, the rating of such Notes is under publicly announced consideration for possible downgrade by each of the Rating Agencies); provided that a Below Investment Grade Downgrade Event otherwise arising by virtue of a particular reduction in rating shall not be deemed to have occurred in respect of a particular Change of Control (and thus shall not be deemed a Below Investment Grade Downgrade Event for purposes of the definition of Change of Control Repurchase Event hereunder) if the Rating Agencies making the reduction in rating to which this definition would otherwise apply do not announce or publicly confirm or inform the Company in writing at its request that the reduction was the result, in whole or in part, of any event or circumstance comprised of or arising as a result of, or in respect of, the applicable Change of Control (whether or not the applicable Change of Control shall have occurred at the time of the Below Investment Grade Downgrade Event). The Company shall request the Rating Agencies to make such confirmation in connection with any Change of Control and shall promptly certify to the Trustee as to whether or not such confirmation has been received or denied.
"Business Day" means any day other than a Saturday, a Sunday or a legal holiday or a day on which banking institutions or trust companies in The City of New York are authorized or obligated by law to close.
2
"Capital Stock" of any Person means any and all shares, interests, participations, rights in or other equivalents (however designated) of such Person's capital stock, other equity interests whether now outstanding or issued after the Issue Date, partnership interests (whether general or limited), limited liability company interests, any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person, including any preferred stock, and any rights (other than debt securities convertible into, or exchangeable for or valued by reference to, Capital Stock until and unless any such debt security is converted into Capital Stock), warrants or options exchangeable for or convertible into such Capital Stock.
"cash" means U.S. legal tender.
"Certificated Notes" means the Notes issued in certificated, registered form without interest coupons and not required to bear the Legend set forth in Section 207(a)(ii) of this Supplemental Indenture.
"Change of Control" means the occurrence of any of the following events:
(1) any "person" or "group" (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act), other than one or more Permitted Holders, becomes the "beneficial owner" (as defined in Rules l3d-3 and 13d-5 under the Exchange Act, except that a Person shall be deemed to have beneficial ownership of all shares that such Person has the right to acquire, whether such right is exercisable immediately or only after the passage of time), directly or indirectly, of more than 50% of the total outstanding Voting Stock of the Company;
(2) the Company sells, assigns, conveys, transfers, leases or otherwise disposes of (other than by way of merger or consolidation) all or substantially all of its and its Subsidiaries' assets taken as a whole to any Person, other than any such transaction where:
| (A) | the transferee is a Person controlled, directly or indirectly, by one or more Permitted Holders; or |
| (B) | following such transaction, each transferee becomes an obligor in respect of the Notes and either (i) each transferee is or becomes a Subsidiary of the transferor of such assets or (ii) the holders of the Voting Stock of the Company immediately prior to such transaction own, directly or indirectly, not less than a majority of the Voting Stock of the transferee immediately after such transaction; |
(3) the Company consolidates with or merges with or into any Person or any Person consolidates with or merges into or with the Company, in any such event pursuant to a transaction in which the outstanding Voting Stock of the Company is converted into or exchanged for cash, securities or other property, other than any such transaction where:
| (A) | the surviving corporation is a Person controlled, directly or indirectly, by one or more Permitted Holders; or |
3
| (B) | (i) the outstanding Voting Stock of the Company is changed into or exchanged for Voting Stock of the surviving corporation (or any direct or indirect parent company of the surviving corporation) and (ii) the holders of the Voting Stock of the Company immediately prior to such transaction own, directly or indirectly, not less than a majority of the Voting Stock of the surviving corporation immediately after such transaction; or |
| (4) | the adoption of a plan relating to the liquidation or dissolution of the Company. |
Notwithstanding the foregoing, a transaction will not be deemed to involve a Change of Control if (i) Cox becomes a direct or indirect wholly owned subsidiary of a holding company and (ii) the direct or indirect holders of the Voting Stock of Cox immediately prior to such transaction own, directly or indirectly, at least a majority of the Voting Stock of such holding company.
"Change of Control Repurchase Event" means, with respect to either series of Notes, the occurrence of a Change of Control together with a Below Investment Grade Downgrade Event with respect to such series of Notes. Notwithstanding the foregoing, no Change of Control Repurchase Event will be deemed to have occurred in connection with any particular Change of Control unless and until such Change of Control has actually been consummated.
"Clearstream" means Clearstream Banking, S.A. (formerly Cedelbank).
"Corporate Trust Office" means 500 Ross Street, 12th Floor, Pittsburgh, Pennsylvania 15262 or such other address as the Trustee may designate from time to time by notice to the Holders and the Company, or the principal corporate trust office of any successor Trustee (or such other address as such successor Trustee may designate from time to time by notice to the Holders and the Company).
"Cox Descendants" means the lineal descendants of Governor James M. Cox.
"Cox Family Charities" means charitable organizations of which Cox Family Individuals constitute at least a majority of the trustees, members or directors thereof.
"Cox Family Individuals" means (a) the Cox Descendants and (b) the spouses and surviving spouses of Cox Descendants.
"Cox Family Members" means (a) Cox Family Individuals, (b) Cox Family Trusts, (c) Cox Family Charities or (d) corporations, partnerships, limited partnerships, limited liability companies or any other Person beneficially owned in whole or in part by one or more Cox Family Individuals or Cox Family Trusts or Cox Family Charities; provided that, with respect to clauses (b) and (d), in the case of a Cox Family Trust, a majority of the trustees are Cox Family Individuals, in the case of a general or limited partnership, Cox Family Individuals own, directly or indirectly, more than 50% of the interests or general partner interests, in the case of a limited liability company, Cox Family Individuals hold, directly or indirectly, more than 50% of the vote of the managers, and in the case of any other Person, one or more Cox Family Individuals is the "beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of more than 50% of the Voting Stock, measured by voting power rather than number of shares, of such Person.
4
"Cox Family Trusts" means trusts established by or for the benefit of any one or more Cox Family Individuals.
"Credit Agreement" means the Third Amended and Restated Credit Agreement dated as of November 10, 2010, and as amended and restated as of March 28, 2014, December 13, 2018 and November 4, 2021, and further amended as of March 1, 2023 and May 29, 2024 (and as may be further amended, supplemented or otherwise modified from time to time), among the Company, the Guarantor, JPMorgan Chase Bank, N.A., as administrative agent, and the lenders from time to time party thereto.
"Debt Securities" has the meaning specified in the first recital hereof.
"Depositary" means, with respect to the Notes issuable in whole or in part in global form, DTC and any nominee thereof, until a successor shall have been appointed and become such pursuant to the applicable provisions of the Indenture, and thereafter "Depositary" shall mean or include such successor and any nominee thereof.
"Distribution Compliance Period" means the 40-day distribution compliance period as defined in Regulation S, or such later date, if any, as may be required by applicable laws.
"DTC" means The Depository Trust Company.
"Electronic Means" shall mean the following communications methods: e-mail, secure electronic transmission containing applicable authorization codes, passwords and/or authentication keys issued by the Trustee, or another method or system specified by the Trustee as available for use in connection with its services hereunder.
"Euroclear" means the Euroclear Bank SA/NV.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Fitch" means Fitch Ratings, Inc. or any successor to the rating agency business thereof.
"Global Note" means a Note issued in global form, bearing the legends set forth in Section 207(a)(ii) of this Supplemental Indenture, and deposited with or on behalf of the Depositary.
"Guarantee" or "Guarantees" has the meaning specified in the recitals hereof.
"Guarantor" has the meaning specified in the first paragraph hereof.
"Holder" and "Noteholder," in the case of any Note, means the Person in whose name such Note is registered in the Debt Security Register.
"Institutional Accredited Investor" means an institutional "accredited investor" as defined in Rule 501(a)(l), (2), (3) and (7) under the Securities Act.
5
"Interest Payment Date," in respect of any Note, has the meaning assigned to it in such Note.
"Investment Grade Rating" means (a) with respect to Moody's, a rating equal to or higher than Baa3 (or the equivalent), and (b) with respect to S&P and Fitch, a rating equal to or higher than BBB- (or the equivalent) (or, in each case, if such Rating Agency ceases to rate the Notes for reasons outside of the Company's control, the equivalent investment grade credit rating from any Rating Agency selected by the Company as a replacement Rating Agency).
"Issue Date" means August 20, 2024.
"Legend" means the Transfer Restriction Legend as defined in Section 207(c) of this Supplemental Indenture.
"Moody's" means Moody's Investors Service, Inc. or any successor to the rating agency business thereof.
"Notes" has the meaning specified in the recitals hereof.
"Permitted Holders" means (a) the Cox Family Members, (b) the Guarantor and its affiliates, including any successor Person to the Guarantor that owns, directly or indirectly, 100% of the Capital Stock of the Company and such successor Person's affiliates, and (c) any "group" (as such term is used in Sections 13(d) and 14(d) of the Exchange Act) of the foregoing with respect to which any such Persons exercise a majority of voting power.
"Purchase Agreement" means the Purchase Agreement, dated August 15, 2024, among the Company and Wells Fargo Securities, LLC, Citigroup Global Markets Inc., MUFG Securities Americas Inc. and Truist Securities, Inc., acting as representatives on behalf of the Initial Purchasers (as defined therein).
"Qualified Institutional Buyer" has the meaning specified in Rule 144A.
"Rating Agencies" means:
| (1) | S&P; |
| (2) | Moody's; and |
| (3) | Fitch; |
provided, that if S&P, Moody's or Fitch or all three shall not make a rating of the Notes of either series publicly available, a "nationally recognized statistical rating organization" within the meaning of Section 3(a)(62) of the Exchange Act, selected by the Company, which shall be substituted for S&P, Moody's or Fitch or all three, as the case may be.
"Redemption Date", with respect to any Note or portion thereof to be redeemed, means the date fixed for redemption in accordance with the terms of such Note and Article III of the Original Indenture.
"Redemption Price", with respect to any Note or portion thereof to be redeemed, means the price at which it is to be redeemed as determined in accordance with the terms of the applicable Note and Article III of the Original Indenture.
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"Regulation S" means Regulation S under the Securities Act.
"Regulation S Global Note" means a Regulation S Temporary Global Note or Regulation S Permanent Global Note, as applicable.
"Regulation S Permanent Global Note" means a permanent Global Note in the form of the Note attached hereto as Exhibit A-2(i) or A-2(ii), as applicable, and that is deposited with and registered in the name of the Depositary, issued in a denomination equal to the outstanding principal amount of the Regulation S Temporary Global Note upon expiration of the Distribution Compliance Period.
"Regulation S Temporary Global Note" means a temporary Global Note in the form of the Note attached hereto as Exhibit A-2(i) or A-2(ii), as applicable, and that is deposited with and registered in the name of the Depositary, representing Notes sold in offshore transactions in reliance on Regulation S.
"Resale Restriction Termination Date" means (1) in the case of U.S. Global Notes, the date that is one year after the latest of (a) the Issue Date, (b) the original issue date of any Additional Notes of such series and (c) the last date on which the Company or any of its Affiliates were the owner of such Notes (or any predecessor thereof) or, in the case of Regulation S Notes, the date that is 40 days after the latest of (a) the Issue Date, (b) the original issue date of any Additional Notes of such series and (c) the date on which such Notes (or any predecessor thereof) were first offered to persons other than distributors (as defined in Rule 902 of Regulation S) in reliance on Regulation S and (2) such later date, if any, as may be required by applicable laws.
"Restricted Note" means a Note required to bear the Transfer Restriction Legend pursuant to Section 207(c) of this Supplemental Indenture and set forth on the form of Note attached as Exhibit A-l (i), A- l(ii), A-2(i) or A-2(ii), as applicable, to this Supplemental Indenture.
"Rule 144A" means Rule 144A under the Securities Act (or any successor provision), as it may be amended from time to time.
"S&P" means S&P Global Ratings, a division of S&P Global, Inc., or any successor to the rating agency business thereof.
"Securities Act" means the Securities Act of 1933, as amended.
"Supplemental Indenture" means this Twenty-Second Supplemental Indenture.
"Termination Date" has the meaning set forth in Section 501(f) of this Supplemental Indenture.
"Transfer Restriction Legend" has the meaning specified in Section 207(c) of this Supplemental Indenture.
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"Trustee" has the meaning specified in the first paragraph hereof.
"U.S. Global Note" means a Global Note in the form of the Note attached hereto as Exhibit A-l(i) or A-l(ii), as applicable, to this Supplemental Indenture, and that is deposited with and registered in the name of the Depositary, representing Notes sold in reliance on Rule 144A.
"Voting Stock" of a Person means Capital Stock of such Person of the class or classes pursuant to which the holders thereof have the general voting power under ordinary circumstances to elect at least a majority of the board of directors, managers or trustees of such Person (irrespective of whether or not at the time Capital Stock of any other class or classes shall have or might have voting power by reason of the happening of any contingency).
SECTION 102 Section References. Each reference to a particular section set forth in this Supplemental Indenture shall, unless the context otherwise requires, refer to this Supplemental Indenture.
SECTION 103 Effect of Supplemental Indenture. Except as set forth below and except as expressly amended hereby, the Original Indenture shall continue in full force and effect in accordance with the provisions thereof, and the Original Indenture is in all respects hereby ratified and confirmed. This Supplemental Indenture and all its provisions shall be deemed a part of the Original Indenture in the manner and to the extent herein and therein provided. The Original Indenture and this Supplemental Indenture shall be read, taken and construed as one and the same instrument.
This Supplemental Indenture amends and supplements and, to the extent inconsistent therewith, replaces the provisions of the Original Indenture, to which provisions reference is hereby made. For the avoidance of doubt, the provisions of Section 206 hereof amend Section 3.03 of the Original Indenture as set forth in such Section 206; the provisions of Section 210 hereof amend Section 6.01 of the Original Indenture as set forth in such Section 210; the provisions of Section 211 hereof amend Section 7.06 of the Original Indenture as set forth in such Section 211; the provisions of Section 212 hereof amend Section 7.07 of the Original Indenture as set forth in such Section 212; the provisions of Section 213 hereof amend Section 7.08 of the Original Indenture as set forth in such Section 213; the provisions of Sections 214 and 215 hereof amend Section 9.01 of the Original Indenture as set forth in such Sections 214 and 215; the provisions of Article 3 hereof replace the provisions of Section 5.03 of the Original Indenture in their entirety; the provisions of Section 402 hereof replace the provisions of Section 4.08 of this Original Indenture in their entirety; the provisions of Section 403 hereof replace the provisions of Section 4.09 of the Original Indenture in their entirety; and the provisions of Article 6 hereof amend the provisions of Section 7.02 of the Original Indenture as set forth in such Article 6.
The amendments and supplements to, and replacements of the provisions of, the Original Indenture effected by this Supplemental Indenture shall be applicable only with respect to, and govern the terms of, the Debt Securities issued pursuant to this Supplemental Indenture and the Guarantees in respect thereof, and shall not apply to any other Debt Securities that have been or may be issued under the Original Indenture unless a supplemental indenture with respect to such other Debt Securities specifically incorporates such amendments, supplements and replacements.
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The provisions of Article XI of the Original Indenture shall apply to the Notes.
ARTICLE 2
THE NOTES
SECTION 201 Title of the Notes. The 2034 Notes and 2054 Notes shall be known and designated as the "5.450% Notes due 2034" and the "5.950% Notes due 2054" of the Company, respectively.
SECTION 202 Amount. The aggregate principal amount of Notes that may be authenticated and delivered under this Supplemental Indenture is initially limited to $750,000,000 for the 2034 Notes and $750,000,000 for the 2054 Notes, in each case, except for Notes authenticated and delivered upon registration of, transfer of, or exchange for, or in lieu of, other Notes pursuant to Section 2.07, 2.08, 2.09 or 9.04 of the Indenture, or upon repayment in part of any 2034 Note or 2054 Note pursuant to Article III of the Original Indenture. The Company may, from time to time, subject to compliance with any other applicable provisions of this Supplemental Indenture but without the consent of the Holders of any series of Notes, create and issue pursuant to this Supplemental Indenture an unlimited principal amount of additional Notes of such series (in excess of any amounts theretofore issued) having the same terms and conditions to those of the other outstanding Notes of such series ("Additional Notes"); provided that any such Additional Notes (i) may have a different issue date and issue price from other outstanding Notes of such series and (ii) may have a different amount of interest payable on the first Interest Payment Date after issuance than the amount payable on other outstanding Notes of such series; provided further, that any such any such Additional Notes are not fungible with the applicable Notes issued on the Issue Date for U.S. federal income tax purposes, such Additional Notes will be issued with a separate CUSIP number.
SECTION 203 Stated Maturity. The Stated Maturity of the 2034 Notes shall be September 1, 2034. The Stated Maturity of the 2054 Notes shall be September 1, 2054.
SECTION 204 Interest.
(a) The 2034 Notes shall bear cash interest at the rate of 5.450% per annum from August 20, 2024 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, payable semiannually in arrears on March 1 and September 1 of each year, beginning on March 1, 2025, to the Persons in whose names such Notes are registered at the close of business on the immediately preceding February 15 or August 15, as the case may be, whether or not a Business Day. Interest on the Notes will be computed on the basis of a 360-day year of twelve 30-day months.
(b) The 2054 Notes shall bear cash interest at the rate of 5.950% per annum from August 20, 2024 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, payable semiannually in arrears on March 1 and September 1 of each year, beginning on March 1, 2025, to the Persons in whose names such Notes are registered at the close of business on the immediately preceding February 15 or August 15, as the case may be, whether or not a Business Day. Interest on the Notes will be computed on the basis of a 360-day year of twelve 30-day months.
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SECTION 205 Payments.
(a) Payments of principal, premium, if any, and interest on the Notes will be made to the Depositary, or its nominee, as the case may be, as the registered owner and holder of the Global Notes representing the Notes. In the event that the Notes are issued in the form of Certificated Notes, payments of principal, premium, if any, and interest thereon will be at the office or agency of the Trustee in the City of New York designated for such purpose; provided that, with respect to definitive Certificated Notes only, payment of interest, other than interest payable at Stated Maturity or upon redemption, may be made at the option of the Company, by the Trustee to the address of the Person entitled as shown on the register for such Debt Securities.
(b) If any date of Stated Maturity, Redemption Date or Interest Payment Date falls on a day that is not a Business Day, the required payment shall be made on the next Business Day, and no interest shall accrue on the amount so payable for the period between such payment date and the next Business Day.
(c) Payments of principal, premium, if any, and interest on the Notes shall be made in cash or such other coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debt.
SECTION 206 Redemption. Each series of Notes shall be redeemable, in whole or in part, on one or more Redemption Dates at the applicable Redemption Price. If the Redemption Date is not an Interest Payment Date, the amount of the scheduled interest payment on the next succeeding Interest Payment Date will be reduced by the amount of interest accrued to the Redemption Date. In connection with any redemption, notice of the redemption will be delivered at least 10 days but not more than 60 days prior to the applicable Redemption Date to the Holders of the Notes of such series by first-class mail or delivered electronically if held by DTC, to the address of such Holder appearing in the security register or otherwise in accordance with the procedures of DTC. Without limiting the other provisions of Section 3.03 of the Original Indenture, any notice of redemption may, at the Company's discretion, be subject to the satisfaction of one or more conditions precedent, and if such notice of redemption is conditioned upon the occurrence of one or more conditions precedent, such notice shall state the nature of such conditions precedent. At the Company 's request, the Trustee shall give the notice of redemption in the Company's name and at the Company's expense. In such event, the Company shall provide the Trustee with the information required by this Section and the Original Indenture relating to such redemption.
SECTION 207 Forms; Denominations. The Notes shall be Registered Securities. The Global Notes representing the Notes shall be in substantially the forms attached hereto as Exhibits A- l(i), A- l(ii), A-2(i) or A-2(ii), as applicable.
The Notes are being offered and sold by the Company pursuant to the Purchase Agreement.
(a) Global Notes. (i) Notes offered and sold in reliance on Rule 144A as provided in the Purchase Agreement shall be issued initially in the form of one or more U.S. Global Notes in definitive fully registered form without interest coupons, deposited on behalf of the subscribers for the Notes represented thereby with the Trustee, as custodian for the Depositary and registered in the name of DTC or a nominee thereof, duly executed by the Company and authenticated by the Trustee as provided in the Indenture. The aggregate principal amount of the U.S. Global Notes may from time to time be increased or decreased by adjustments made on the records of the Trustee and the Depositary as hereinafter provided.
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Notes offered and sold in offshore transactions in reliance on Regulation S as provided in the Purchase Agreement shall be issued initially in the form of one or more Regulation S Temporary Global Notes in definitive fully registered form without interest coupons, deposited on behalf of the subscribers for the Notes represented thereby with the Trustee, as custodian for the Depositary, for the accounts of Euroclear and Clearstream and registered in the name of DTC or a nominee thereof, duly executed by the Company and authenticated by the Trustee as hereinafter provided. The Distribution Compliance Period shall be terminated upon the receipt by the Trustee of a written certificate from the Depositary, if available, together with copies of certificates from Euroclear and Clearstream, if available, certifying that they have received certification of non-United States beneficial ownership of 100% of the aggregate principal amount of the Regulation S Temporary Global Note (except to the extent of any beneficial owners thereof who acquired an interest therein during the Distribution Compliance Period pursuant to another exemption from registration under the Securities Act and who shall take delivery of a beneficial ownership interest in a U.S. Global Note bearing a Legend, all as contemplated by Section 209(a)(iii) hereof) .
Following the termination of the Distribution Compliance Period, beneficial interests in the Regulation S Temporary Global Note shall be exchanged for beneficial interests in the Regulation S Permanent Global Note pursuant to the Applicable Procedures. Simultaneously with the authentication of the Regulation S Permanent Global Note, the Trustee shall cancel the Regulation S Temporary Global Note. The aggregate principal amount of the Regulation S Temporary Global Note and the Regulation S Permanent Global Note may from time to time be increased or decreased by adjustments made on the records of the Trustee and the Depositary as hereinafter provided.
Each Global Note shall represent such of the outstanding Notes as shall be specified therein and each shall provide that it shall represent the aggregate principal amount of outstanding Notes from time to time endorsed thereon and the aggregate principal amount of outstanding Notes represented thereby may from time to time be reduced to reflect exchanges or redemptions. Any adjustment of the aggregate principal amount of a Global Note representing the Notes to reflect the amount of any decrease in the principal amount of outstanding Notes represented thereby shall be made by the Trustee in accordance with instructions given by the Holder thereof as required by Section 209 hereof and shall be made on the records of the Trustee and the Depositary.
(i) Book-Entry Provisions. This Section 207(a)(ii) shall apply only to Global Notes.
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The Company shall execute and the Trustee shall, in accordance with this Section 207(a)(ii) and Section 2.02 of the Indenture, authenticate and deliver initially one or more Global Notes that (a) shall be registered in the name of the Depositary, (b) shall be delivered by the Trustee to the Depositary or pursuant to the Depositary's instructions and (c) shall bear legends substantially to the following effect:
"UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON 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.
"TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS, IN WHOLE BUT NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH R IN ARTICLE TWO OF THE TWENTY-SECOND SUPPLEMENTAL INDENTUE REFERRED TO ON THE REVERSE HEREOF."
(b) Certificated Notes. Except as otherwise set forth in this Supplemental Indenture, owners of beneficial interests in Global Notes will not be entitled to receive physical delivery of Certificated Notes. Beneficial interests in a Global Note transferred in accordance with Section 209(a)(ii) to an Institutional Accredited Investor who is not a Qualified Institutional Buyer and beneficial interests in a Global Note transferred to the beneficial holders thereof pursuant to Section 209(e will be issued in certificated, registered form without interest coupons.
(c) Restrictive Legends. Prior to the Resale Restriction Termination Date, all Global Notes and all Certificated Notes issued in exchange for a beneficial interest in a Global Note shall bear a legend (the "Transfer Restriction Legend") in substantially the following form, unless such Notes have been sold pursuant to a registration statement that has been declared effective under the Securities Act:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
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"THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF ( 1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS A NON-U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH THE LAWS APPLICABLE TO SUCH PURCHASER IN THE JURISDICTION IN WHICH SUCH PURCHASE IS MADE AND (2) AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE RESTRICTION TERMINATION DATE") THAT IS, IN THE CASE OF U.S. GLOBAL NOTES: ONE YEAR AFTER THE LATEST OF THE ISSUE DATE HEREOF, THE ORIGINAL ISSUE DATE OF ANY ADDITIONAL NOTES AND THE LAST DATE ON WHICH THE COMPANY OR ANY OF ITS AFFILIATES WERE THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), OR IN THE CASE OF REGULATION S GLOBAL NOTES: 40 DAYS AFTER THE LATEST OF THE ISSUE DATE HEREOF, THE ORIGINAL ISSUE DATE OF ANY ADDITIONAL NOTES AND THE DATE ON WHICH THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) WAS FIRST OFFERED TO PERSONS OTHER THAN DISTRIBUTORS (AS DEFINED IN RULE 902 OF REGULATION S) IN RELIANCE ON REGULATION S, ONLY (A) TO THE COMPANY, THE GUARANTOR OR ANY SUBSIDIARY THEREOF, (B) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH THE LAWS APPLICABLE TO IT IN THE JURISDICTION IN WHICH SUCH PURCHASE IS MADE, (D) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S, OR REGISTRAR'S, AS APPLICABLE, RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (C) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE FOREGOING CASES, A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE OR REGISTRAR. THIS LEGEND WILL BE REMOVED UPON THE WRITTEN REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE. IN THE CASE OF REGULATIONS GLOBAL NOTES: BY ITS ACQUISITION HEREOF, THE HOLDER HEREOF REPRESENTS THAT IT IS NOT A U.S. PERSON NOR IS IT PURCHASING FOR THE ACCOUNT OF A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT.
"IN THE CASE OF REGULATIONS TEMPORARY GLOBAL NOTES: THIS GLOBAL NOTE IS A TEMPORARY GLOBAL NOTE FOR PURPOSES OF REGULATION S UNDUE THE SECURITIES ACT. NEITHER THIS TEMPORARY GLOBAL NOTE NOR ANY INTEREST HEREIN MAY BE OFFERED, SOLD OR DELIVERED, EXCEPT AS PERMITTED UNDER THE INDENTURE REFERRED TO BELOW."
SECTION 208 Transfer and Exchange.
(a) Notwithstanding any provision to the contrary herein, so long as a Global Note remains Outstanding and is held by or on behalf of the Depositary, transfers of such Global Note, in whole or in part, shall be made only in accordance with Section 209 and this Section 208.
(b) Transfers of a Global Note shall be limited to transfers of such Global Note in whole, or in part, to nominees of the Depositary or to a successor of the Depositary or such successor 's nominee.
(c) If Notes are issued upon the transfer, exchange or replacement of Notes subject to restrictions on transfer and bearing a Legend, or if a request is made to remove the Legend on a Note, the Notes so issued shall bear the Legend, or the Legend shall not be removed, as the case may be, unless there is delivered to the Company and the Registrar such satisfactory evidence, which shall include an opinion of counsel, as may be reasonably required by the Company and the Registrar, that neither the Legend nor the restrictions on transfer set forth therein are required to ensure that transfers thereof comply with the provisions of Rule 144A, Rule 144 or Regulation S under the Securities Act, that such Notes are not "restricted" within the meaning of Rule 144 under the Securities Act or that any such exchange or replacement Notes have been issued in a registered transaction under the Securities Act. Upon (i) provision of such satisfactory evidence, or (ii) notification by the Company to the Trustee and the Registrar of the sale or exchange of such Notes pursuant to a registration statement that is effective at the time of such sale, the Trustee, at the written direction of the Company, shall authenticate and deliver a Note that does not bear the Legend. If the Legend is removed from the face of a Note and the Note is subsequently held by an Affiliate of the Company, the Legend shall be reinstated.
The Trustee and the Registrar shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Supplemental Indenture or under applicable law with respect to any transfer of any interest in any Note (including transfers between or among the Depositary's participants or beneficial owners of interest in any Global Note) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Supplemental Indenture and to examine the same to determine substantial compliance as to form with the express requirements hereof.
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SECTION 209 Global Notes.
(a) Notwithstanding any other provisions of this Supplemental Indenture or the Notes, (A) transfers of a Global Note, in whole or in part, shall be made only in accordance with Section 2.07 of the Indenture and Sections 208 and 209(a)(i) below, (B) transfer of a beneficial interest in a Global Note for a Certificated Note shall comply with Section 2.07 of the Indenture and Section 209(a)(ii) below, (C) transfers of a beneficial interest in a Regulation S Global Note for a beneficial interest in a U.S. Global Note shall comply with Section 2.07 of the Indenture and Section 209(a)(iii) below, and (D) transfers of a Certificated Note shall comply with Section 2.07 of the Indenture and Sections 209(a)(iv) and (v) below.
(i) Transfer of Global Note. A Global Note may not be transferred, in whole or in part, to any Person other than the Depositary or a nominee thereof, and no such transfer to any such other Person may be registered; provided that this clause (i) shall not prohibit any transfer of a Note that is issued in exchange for a Global Note but is not itself a Global Note. No transfer of a Note to any Person shall be effective under the Indenture or the Notes unless and until such Note has been registered in the name of such Person. Nothing in this Section 209(a)(i) shall prohibit or render ineffective any transfer of a beneficial interest in a Global Note effected in accordance with the other provisions of this Section 209(a).
(ii) Restrictions on Transfer of a Beneficial Interest in a Global Note for a Certificated Note. A beneficial interest in a Global Note may not be exchanged for a Certificated Note except upon satisfaction of the requirements set forth below. Upon receipt by the Trustee of a request for transfer of a beneficial interest in a Global Note in accordance with Applicable Procedures for a Certificated Note in the form satisfactory to the Trustee, together with:
(a) so long as the Notes are Restricted Notes, certification, in the form set forth in Exhibit B-1 attached hereto, and, if requested by the Company or the Registrar, certification in the form set forth in Exhibit B-2 attached hereto, that such beneficial interest in the Global Note is being transferred to an Institutional Accredited Investor;
(b) written instructions to the Trustee to make, or direct the Registrar to make, an adjustment on its books and records with respect to such Global Note to reflect a decrease in the aggregate principal amount of the Notes represented by the Global Note, such instructions to contain information regarding the Depositary account to be credited with such decrease; and
(c) if the Company or Registrar so requests, an opinion of counsel or other evidence reasonably satisfactory to them as to compliance with the restrictions set forth in the applicable Legend,
then the Trustee shall cause, or direct the Registrar to cause, in accordance with the standing instructions and procedures existing between the Depositary and the Registrar, the aggregate principal amount of Notes represented by the Global Note to be decreased by the aggregate principal amount of the Certificated Note to be issued, shall issue such Certificated Note and shall debit or cause to be debited to the account of the Person specified in such instructions a beneficial interest in the Global Note equal to the principal amount of the Certificated Note so issued.
(iii) Restrictions on Transfer of Beneficial Interest in a Regulation S Global Note for a Beneficial Interest in a U.S. Global Note.
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(a) On or prior to the expiration of the Distribution Compliance Period, a beneficial interest in a Regulation S Global Note may be transferred to a Person who takes delivery in the form of an interest in the corresponding U.S. Global Note only upon receipt by the Trustee of a written certification from the transferor to the effect that such transfer is being made (i)(a) to a Person whom the transferor reasonably believes is a Qualified Institutional Buyer in a transaction meeting the requirements of Rule 144A or (b) pursuant to another exemption from the registration requirements under the Securities Act which is accompanied by an Opinion of Counsel regarding the availability of such exemption and (ii) in accordance with all applicable securities laws of any state of the United States or any other jurisdiction.
(b) Beneficial interests in the U.S. Global Note may be transferred to a Person who takes delivery in the form of an interest in the Regulation S Global Note, whether before or after the expiration of the Distribution Compliance Period, only if the transferor first delivers to the Trustee a written certificate to the effect that such transfer is being made in accordance with Rule 904 of Regulation S or Rule 144 (if available).
(iv) Transfer and Exchange of Certificated Notes. When Certificated Notes are presented to the Registrar with a request:
(x) to register the transfer of such Certificated Notes; or
(y) to exchange such Certificated Notes for an equal principal amount of Certificated Notes of other authorized denominations, the Registrar shall register the transfer or make the exchange as requested if its reasonable requirements for such transaction are met; provided, however, that the Certificated Notes surrendered for transfer or exchange:
(a) shall be duly endorsed or accompanied by a written instrument of transfer in form reasonably satisfactory to the Company and the Registrar, duly executed by the Holder thereof or his attorney duly authorized in writing; and
(b) so long as such Notes are Restricted Notes, such Notes are being transferred or exchanged pursuant to clause (A), (B) or (C) below, and are accompanied by the following additional information and documents, as applicable:
| (A) | if such Certificated Notes are being delivered to the Registrar by a Holder for registration in the name of such Holder, without transfer, a certification from such Holder to that effect; or |
| (B) | if such Certificated Notes are being transferred to the Company, a certification to that effect; or |
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| (C) | if such Certificated Notes are being transferred pursuant to an exemption from registration, (i) a certification to that effect (in the form set forth in Exhibit B- 1 and B-2, if applicable) and (ii) if the Company or Registrar so requests, an opinion of counsel or other evidence reasonably satisfactory to them as to the compliance with the restrictions set forth in the Transfer Restriction Legend. |
(v) Restrictions on Transfer of a Certificated Note for a Beneficial Interest in a Global Note. A Certificated Note may not be exchanged for a beneficial interest in a Global Note except upon satisfaction of the requirements set forth below.
Upon receipt by the Trustee of a Certificated Note, duly endorsed or accompanied by appropriate instruments of transfer, in form satisfactory to the Trustee, together with:
(x) so long as the Notes are Restricted Notes, certification, in the form set forth in Exhibit B-1, that such Certificated Note is being transferred to a Qualified Institutional Buyer in accordance with Rule 144A; and
(y) written instructions directing the Trustee to make, or to direct the Registrar to make, an adjustment on its books and records with respect to such Global Note to reflect an increase in the aggregate principal amount of the Notes represented by the Global Note, such instructions to contain information regarding the Depositary account to be credited with such increase,
then the Trustee shall cancel such Certificated Note and cause, or direct the Registrar to cause, in accordance with the standing instructions and procedures existing between the Depositary and the Registrar, the aggregate principal amount of Notes represented by the Global Note to be increased by the aggregate principal amount of the Certificated Note to be exchanged, and shall credit or cause to be credited to the account of the Person specified in such instructions a beneficial interest in the Global Note equal to the principal amount of the Certificated Note so cancelled. If no Global Notes are then Outstanding, the Company shall issue and the Trustee shall authenticate, upon receipt of a Company Order, a new Global Note in the appropriate principal amount.
(b) Subject to the succeeding paragraph, every Note shall be subject to the restrictions on transfer provided in the applicable Legend including the delivery of an opinion of counsel, if so provided. Whenever any Restricted Note is presented or surrendered for registration of transfer or for exchange for a Note registered in a name other than that of the Holder, such Note must be accompanied by a certificate in substantially the form set forth in Exhibit B-1, dated the date of such surrender and signed by the Holder of such Note, as to compliance with such restrictions on transfer. The Registrar shall not be required to accept for such registration of transfer or exchange any Note not so accompanied by a properly completed certificate.
(c) The restrictions imposed by the Transfer Restriction Legend upon the transferability of any Restricted Note shall cease and terminate when such Note has been sold or exchanged pursuant to an effective registration statement under the Securities Act or may be transferred in compliance with Rule 144 under the Securities Act (or any successor provision thereto). Any Note as to which such restrictions on transfer shall have expired in accordance with their terms or shall have terminated may, upon a surrender of such Note for exchange to the Registrar in accordance with the provisions of this Section 209 (accompanied, in the event that such restrictions on transfer have terminated by reason of a transfer in compliance with Rule 144 or any successor provision, by an opinion of counsel having substantial experience in practice under the Securities Act and otherwise reasonably acceptable to the Company, addressed to the Company, the Trustee and the Registrar and in form acceptable to the Company, to the effect that the transfer of such Note has been made in compliance with Rule 144 or such successor provision), be exchanged for a new Note, of like tenor and aggregate principal amount, which shall not bear the Transfer Restriction Legend. The Company shall inform the Trustee of the effective date of any registration statement registering the Notes under the Securities Act. The Trustee shall not be liable for any action taken or omitted to be taken by it in good faith in accordance with the aforementioned opinion of counsel.
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(d) As used in the preceding two paragraphs of this Section 209, the term "transfer" encompasses any sale, pledge, transfer, hypothecation or other disposition of any Note.
(e) The provisions of clauses (i), (ii), (iii), (iv), and (v) below shall apply only to Global Notes:
(i) Notwithstanding any other provisions of the Indenture or the Notes, except as provided in Section 209(a)(ii), a Global Note shall not be exchanged in whole or in part for a Note registered in the name of any Person other than the Depositary or one or more nominees thereof, provided that a Global Note may be exchanged for Certificated Notes registered in the names of any Person designated by the Depositary in the event that (A) the Depositary has notified the Company that it is unwilling or unable to continue as depositary for such Global Note or the Depositary has ceased to be a "clearing agency" registered under the Exchange Act, and a successor Depositary is not appointed by the Company within 90 days or (B) an Event of Default has occurred and is continuing with respect to the Notes. Any Global Note exchanged pursuant to clause (A) above shall be so exchanged in whole and not in part, and any Global Note exchanged pursuant to clause (B) above may be exchanged in whole or from time to time in part as directed by the Depositary. Prior to the issuance of Certificated Notes in exchange for any beneficial interests in a Regulation S Global Note, the holder of such beneficial interests shall, as a condition to such exchange, certify in a form satisfactory to the Company that such holder is a non-U.S. person (as that term is defined in Regulation S under the Securities Act) or a U.S. person who purchased such beneficial interest in a transaction that did not require registration under the Securities Act. In the event that Certificated Notes are issued in respect of beneficial interests in a Regulation S Global Note at any time prior to the end of the Distribution Compliance Period (other than in a transaction subject to Rule 144A), the Company shall as promptly as practicable, institute procedures, including appropriate certifications, reasonably designed to ensure that any transfer of such Certificated Notes prior to the end of the Distribution Compliance Period is made only in accordance with the provisions of Regulation S, pursuant to registration under the Securities Act or pursuant to an exemption from such registration.
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(ii) Notes issued in exchange for a Global Note or any portion thereof shall be issued in definitive, fully registered form, without interest coupons, shall have an aggregate principal amount equal to that of such Global Note or portion thereof to be so exchanged, shall be registered in such names and be in such authorized denominations as the Depositary shall designate and shall bear the applicable Legend. Any Global Note to be exchanged in whole shall be surrendered by the Depositary to the Trustee, as Registrar. With regard to any Global Note to be exchanged in part, either such Global Note shall be so surrendered for exchange or, if the Trustee is acting as custodian for the Depositary or its nominee with respect to such Global Note, the principal amount thereof shall be reduced, by an amount equal to the portion thereof to be so exchanged, by means of an appropriate adjustment made on the records of the Trustee. Upon any such surrender or adjustment, the Trustee shall authenticate and deliver the Note issuable on such exchange to or upon the order of the Depositary or an authorized representative thereof.
(iii) Subject to the provisions of clause (v) below, the registered Holder may grant proxies and otherwise authorize any Person, including Agent Members (as defined below) and Persons that may hold interests through Agent Members, to take any action which a Holder is entitled to take under the Indenture or the Notes.
(iv) In the event of the occurrence of any of the events specified in clause (i) above, the Company will promptly make available to the Trustee a reasonable supply of Certificated Notes.
(v) Neither any members of, or participants in, the Depositary (collectively, the "Agent Members") nor any other Persons on whose behalf Agent Members may act shall have any rights under the Indenture with respect to any Global Note registered in the name of the Depositary or any nominee thereof, or under any such Global Note, and the Depositary or such nominee, as the case may be, may be treated by the Company, the Trustee and any agent of the Company or the Trustee as the absolute owner and holder of such Global Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee or any agent of the Company or the Trustee from giving effect to any written certification, proxy or other authorization furnished by the Depositary or such nominee, as the case may be, or impair, as between the Depositary, its Agent Members and any other Person on whose behalf an Agent Member may act, the operation of customary practices of such Persons governing the exercise of the rights of a Holder of any Note.
SECTION 210 Events of Default. For purposes of this Supplemental Indenture and the Notes issued hereunder, Section 6.01 of the Original Indenture is hereby amended by deleting the clause immediately following subsection (i) in the first sentence of such Section and inserting in its place the following:
then and in each and every case that an Event of Default described in clause (a), (b), (c), (d), (e), (f), (g) (with respect to Restricted Subsidiaries only), (h) (with respect to Restricted Subsidiaries only) or (i) with respect to Debt Securities of that series at the time Outstanding occurs and is continuing, unless the principal of and interest on all the Debt Securities of that series shall have already become due and payable, either the Trustee or the Holders of not less than 25% in aggregate principal amount of the Debt Securities of that series then Outstanding hereunder, by notice in writing to the Company (and to the Trustee if given by Holders), may declare the principal of (or, if the Debt Securities of that series are Original Issue Discount Debt Securities, such portion of the principal amount as may be specified in the terms of that series) and interest on all the Debt Securities of that series to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything in this Indenture or in the Debt Securities or Coupons appertaining thereto of that series contained to the contrary notwithstanding.
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SECTION 211 Compensation and Reimbursement. For purposes of this Supplemental Indenture and the Notes issued hereunder, Section 7.06 of the Original Indenture is hereby amended to be replaced with the following:
The Company covenants and agrees to pay in Dollars to the Trustee such compensation as the Company and the Trustee shall from time to time agree in writing for all services rendered by it hereunder (which shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust), and, except as otherwise expressly provided herein, the Company will pay or reimburse in Dollars the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any of the provisions of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents, attorneys and counsel and of all Persons not regularly in its employ) except any such expense, disbursement or advances as may arise from its negligence or wilful misconduct. The Company also covenants to indemnify in Dollars each of the Trustee (which shall be deemed to include its officers, directors, employees, and agents) or any predecessor Trustee for, and to hold it harmless against, any loss, damage, claim, liability or expense, including the reasonable fees and expenses of counsel, and taxes (other than taxes based upon, measured by or determined by the income of the Trustee) incurred without negligence or wilful misconduct on the part of the Trustee, arising out of or in connection with the acceptance or administration of this trust or trusts hereunder, including the reasonable costs and expenses of defending itself against any claim of liability in connection with the exercise or performance of any of its powers or duties hereunder. The obligations of the Company under this Section 7.06 to compensate and indemnify the Trustee and to pay or reimburse the Trustee for expenses, disbursements and advances shall constitute additional indebtedness hereunder and shall survive the resignation or removal of the Trustee and/or the satisfaction and discharge of this Indenture. The Company and the Holders agree that such additional indebtedness shall be secured by a Lien prior to that of the Debt Securities and Coupons, if any, upon all property and funds held or collected by the Trustee, as such, except funds held in trust for the payment of principal of, and premium, if any, or interest on, particular Debt Securities and Coupons.
SECTION 212 Right of Trustee to Rely on an Officers' Certificate Where No Other Evidence Specifically Prescribed. With respect to the Notes, Section 7.07 of the Original Indenture is hereby amended to be replaced with the following:
Except as otherwise provided in Section 7.01, whenever in the administration of the provisions of this Indenture the Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering or omitting any action hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) may, be deemed to be conclusively proved and established by an Officers' Certificate delivered to the Trustee, and such certificate shall be full warrant to the Trustee for any action taken, suffered or omitted by it under the provisions of this Indenture.
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SECTION 213 Separate Trustee; Replacement of Trustee. With respect to the Notes, Section 7.08 of the Original Indenture is hereby amended to be replaced with the following:
The Company may, but need not, appoint a separate Trustee for any one or more series of Debt Securities. The Trustee may resign with respect to one or more or all series of Debt Securities at any time by giving 30 days' notice to the Company. The Holders of a majority in principal amount of the Debt Securities of a particular series may remove the Trustee for such series and only such series by so notifying the Trustee and may appoint a successor Trustee with 30 days' notice. The Company shall remove the Trustee with 30 days' notice if:
| (1) | the Trustee fails to comply with Section 7.10; |
| (2) | the Trustee is adjudged bankrupt or insolvent; |
| (3) | a receiver or other public officer takes charge of the Trustee or its |
property; or
| (4) | the Trustee otherwise becomes incapable of acting. |
If the Trustee resigns, is removed by the Company or by the Holders of a majority in principal amount of the Debt Securities of a particular series and such Holders do not reasonably promptly appoint a successor Trustee, or if a vacancy exists in the office of Trustee for any reason (the Trustee in such event being referred to herein as the retiring Trustee), the Company shall promptly appoint a successor Trustee. No resignation or removal of the Trustee and no appointment of a successor Trustee shall become effective until the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of this Section 7.08.
A successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Company. Thereupon the resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee under this Indenture. The successor Trustee shall send a notice of its succession to Holders of Debt Securities of each applicable series. The retiring Trustee shall promptly transfer all property held by it as Trustee to the successor Trustee, subject to the Lien provided for in Section 7.06.
If a successor Trustee does not take office within 30 days after the retiring Trustee resigns or is removed, the retiring Trustee or the Holders of 25% in principal amount of the Debt Securities of any applicable series may petition, at the expense of the Company, any court of competent jurisdiction for the appointment of a successor Trustee for the Debt Securities of such series.
If the Trustee fails to comply with Section 7.10, any Holder of Debt Securities of any applicable series may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee for the Debt Securities of such series.
Notwithstanding the replacement of the Trustee pursuant to this Section 7.08, the Company's obligations under Section 7.06 shall continue for the benefit of the retiring Trustee.
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In the case of the appointment hereunder of a separate or successor trustee with respect to the Debt Securities of one or more series, the Company, any retiring Trustee and each successor or separate Trustee with respect to the Debt Securities of any applicable series shall execute and deliver an indenture supplemental hereto ( 1) which shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of any retiring Trustee with respect to the Debt Securities of any series as to which any such retiring Trustee is not retiring shall continue to be vested in such retiring Trustee and (2) that shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trustee hereunder by more than one trustee, it being understood that nothing herein or in such supplemental Indenture shall constitute such Trustees co-trustees of the same trust and that each such separate, retiring or successor Trustee shall be Trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee.
SECTION 214 With respect to the Notes, Section 9.0l(f) of the Original Indenture is hereby deleted in its entirety and replaced with "[Reserved]" in lieu thereof.
SECTION 215 With respect to the Notes, the last paragraph of Section 9.01 of the Original Indenture is hereby deleted in its entirety and replaced with the following:
After an amendment under the Indenture becomes effective with respect to the Notes of a particular series, the Company is required to deliver to Holders of the Notes of such series, by first-class mail or delivered electronically if held by DTC, to the address of such Holder appearing in the security register or otherwise in accordance with the procedures of DTC, a notice briefly describing such amendment. However, the Company's failure to give such notice to all Holders of the Notes of such series, or any defect in such notice, will not impair or affect the validity of the amendment.
ARTICLE 3
REPORTS BY THE COMPANY
So long as any of the Debt Securities are "restricted securities" within the meaning of Rule 144(a)(3) under the Securities Act, the Company will, during any period in which it is not subject to Sections 13 or 15(d) of the Exchange Act or it is not exempt from such reporting requirements pursuant to and in compliance with Rule 12g3-2(b) under the Exchange Act, provide to each Holder of Notes and to each prospective purchaser (as designated by such Holder) of Notes, upon the request of such Holder or prospective purchaser, any information required to be provided by Rule 144A(d)(4) under the Securities Act.
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ARTICLE 4
ADDITIONAL COVENANTS
SECTION 401 Purchase of Notes Upon a Change of Control Repurchase Event.
(a) If a Change of Control Repurchase Event occurs with respect to either series of Notes, each Holder of the Notes of such series will have the right to require that the Company purchase all or any part (in denominations of $2,000 and integral multiples of $ 1,000 in excess thereof) of such Holder's Notes of such series pursuant to a Change of Control offer (a "Change of Control Offer") on the terms set forth in this Supplemental Indenture, except that the Company shall not be obligated to repurchase the Notes of such series pursuant to this Section 401 in the event that the Company has exercised the right to redeem all of the Notes of such series as described in Section 206. In the Change of Control Offer with respect to either series of Notes, the Company will offer to purchase all of the Notes of such series at a purchase price (the "Change of Control Purchase Price") in cash in an amount equal to 101% of the principal amount of such series of Notes, plus accrued but unpaid interest, if any, to, but not including, the date of purchase (the "Change of Control Purchase Date") (subject to the rights of Holders of record on the relevant record date to receive interest due on the relevant Interest Payment Date if such Notes have not been repurchased prior to such record date).
(b) Within 30 days after any Change of Control Repurchase Event with respect to either series of Notes or, at the Company's option, prior to such Change of Control but after the public announcement of such pending Change of Control, the Company must notify the Trustee of such series of Notes and give written notice of the Change of Control Repurchase Event to the Trustee and each Holder of Notes of such series, by first-class mail or delivered electronically if held by DTC, to the address of such Holder appearing in the security register or otherwise in accordance with the procedures of DTC. The notice must state, among other things:
(1) that a Change of Control Repurchase Event has occurred or may occur with respect to such series of Notes and the date of such event;
(2) the purchase price and the purchase date which shall be fixed by the Company on a Business Day no earlier than 15 days nor later than 60 days from the date the notice is mailed or delivered electronically, other than as may be required by law;
(3) that any Note not tendered will continue to accrue interest;
(4) that, unless the Company defaults in the payment of the Change of Control Purchase Price, any Notes accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest after the Change of Control Purchase Date; and
(5) other procedures that a Holder of Notes must follow to accept a Change of Control Offer or to withdraw acceptance of the Change of Control Offer.
In addition, the notice, if sent prior to the date of the consummation of the Change of Control, will state that the Change of Control Offer is conditioned on the Change of Control being consummated on or prior to the Change of Control Purchase Date.
(c) If Holders of not less than 90% in aggregate principal amount of the outstanding Notes of an applicable series validly tender and do not withdraw such Notes in a Change of Control Offer and the Company, or any third party making a Change of Control Offer in lieu of the Company, as described in clause (d) below, purchases all of the Notes of such series validly tendered and not withdrawn by such Holders, the Company will have the right, upon not less than 15 nor more than 60 days' prior notice, with such notice given not more than 30 days following the Change of Control Purchase Date, to redeem all Notes of such series that remain Outstanding following such purchase at a redemption price in cash equal to the Change of Control Purchase Price plus, to the extent not included in the Change of Control Purchase Price, accrued and unpaid interest, if any, on the Notes of such series that remain Outstanding to, but not including, the date of redemption (subject to the rights of Holders of record on relevant record dates to receive interest due on the relevant Interest Payment Date).
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(d) The Company will comply with Rule 14e-l under the Exchange Act, and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control Repurchase Event. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 401, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Section 401 by virtue of its compliance with such securities laws and regulations. The Company will not be required to make a Change of Control Offer upon a Change of Control Repurchase Event with respect to either series of Notes if a third party makes the Change of Control Offer with respect to such series of Notes in the manner, at the times and otherwise in compliance with the requirements described in this Supplemental Indenture applicable to a Change of Control Offer made by the Company and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer.
(e) On the Change of Control Purchase Date with respect to either series of Notes, the Company will, to the extent permitted by law:
(1) accept for payment all Notes of such series or portions thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Depositary or the Trustee, as applicable, an amount equal to the aggregate Change of Control Purchase Price in respect of all Notes of such series or portions thereof so tendered; and
(3) deliver, or cause to be delivered, to the Trustee for cancellation of the Notes of such series so accepted together with an Officers' Certificate to the Trustee stating that such Notes or portions thereof have been tendered to and purchased by the Company.
SECTION 402 Limitation on Liens. With respect to the Notes, Section 4.08 of the Original Indenture is hereby amended to be replaced with the following:
As long as any Notes of any series remain Outstanding, the Company will not, and will not permit any Restricted Subsidiary to, create, incur or assume any Lien (other than Permitted Liens) on Restricted Property to secure the payment of Indebtedness of the Company or any Restricted Subsidiary if immediately after the creation, incurrence or assumption of such Lien, the aggregate outstanding principal amount of all Indebtedness of the Company and its Restricted Subsidiaries that is secured by Liens (other than Permitted Liens) on Restricted Property would exceed the greater of (i) $1,100,000,000 or (ii) 15% of the aggregate outstanding principal amount of all Indebtedness of the Company and its Restricted Subsidiaries (whether or not so secured), unless effective provision is made whereby the Notes of such series (together with, if the Company shall so determine, any other Indebtedness ranking equally with the Notes of such series, whether then existing or later created) are secured equally and ratably with (or prior to) such Indebtedness (but only for so long as such Indebtedness is so secured).
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SECTION 403 Limitation on Indebtedness of Restricted Subsidiaries. For purposes of this Supplemental Indenture and the Notes issued hereunder, Section 4.09 of the Original Indenture is hereby amended to be replaced with the following:
As long as any Notes of any series remain Outstanding, the Company will not permit any Restricted Subsidiary to incur or assume any Indebtedness if immediately after the incurrence or assumption of such Indebtedness, the aggregate outstanding principal amount of all Indebtedness of the Restricted Subsidiaries would exceed the greater of (i) $1,100,000,000 or (ii) 15% of the aggregate outstanding principal amount of all Indebtedness of the Company and its Restricted Subsidiaries; provided that in any event, a Restricted Subsidiary may incur Indebtedness to extend, renew or replace Indebtedness of such Restricted Subsidiary to the extent that the principal amount of the Indebtedness so incurred does not exceed the principal amount of the Indebtedness extended, renewed or replaced thereby immediately prior to such extension, renewal or replacement plus any premium, accrued and unpaid interest or capitalized interest payable thereon.
ARTICLE 5
SECTION 501 Guarantee.
(a) The Guarantor hereby fully and unconditionally guarantees the Notes of each series and the obligations of the Company thereunder and under the Indenture, and guarantees to each Holder of a Note of such series authenticated and delivered by the Trustee, and to the Trustee on behalf of such Holder, that (i) the principal of (and premium, if any) and interest on the Notes of such series will be paid in full when due, whether at Stated Maturity, by acceleration or otherwise (including, without limitation, the amount that would become due but for the operation of any automatic stay provision of any federal bankruptcy law), together with interest on the overdue principal, if any, and interest on any overdue interest, to the extent lawful, and all other obligations of the Company to the Holders or the Trustee under the Indenture or the Notes of such series will be paid in full or performed, all in accordance with the terms of the Indenture and the Notes of such series; and (ii) in case of any extension of time of payment or renewal of any Notes of such series or of any such other obligations, the same will be paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise.
(b) The Guarantor hereby agrees that, upon the occurrence of an Event of Default in payment of principal (or premium, if any) or interest on an applicable series of Notes, whether at Stated Maturity, by acceleration, purchase or otherwise, legal proceedings may be instituted by the Trustee on behalf of, or by, a Holder of such Notes of such series, subject to the terms and conditions set forth in the Indenture, directly against the Guarantor to enforce the Guarantee without first proceeding against the Company or any other guarantor. The Guarantor agrees that if, after the occurrence and during the continuance of an Event of Default with respect to an applicable series of Notes, the Trustee or any of the Holders are prevented by applicable law from exercising their respective rights to accelerate the maturity of the Notes of such series, to collect interest on the Notes of such series, or to enforce or exercise any other right or remedy with respect to the Notes of such series, the Guarantor will pay to the Trustee for the account of the Holders, upon demand therefor, the amount that would otherwise have been due and payable had such rights and remedies been permitted to be exercised by the Trustee or any of the Holders.
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(c) With respect to an applicable series of Notes, unless and until the Termination Date (as defined herein) has occurred, or the Guarantor shall be released in accordance with Section 504 of this Supplemental Indenture, to the fullest extent permitted by applicable law, the Guarantor shall remain obligated hereunder and the Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against the Company for liquidation or reorganization, should the Company become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Company's assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Notes of such series are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Notes of such series, whether as a "voidable preference", "fraudulent transfer" or otherwise, all as though such payment or performance had not been made. In the event that any payment, or any part thereof, is rescinded, reduced, restored or returned, the Notes of such series shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned.
(d) To the fullest extent permitted by applicable law, the Guarantor waives diligence, presentment, protest and notice of protest, demand for payment or performance, notice of default or nonpayment, notice of acceptance and any other notice in respect of the Company's obligations under any series of Notes and under the Indenture, and any defense arising by reason of any disability or other defense of the Company or the Guarantor with respect to such obligations (other than the defense that the Termination Date has occurred or the Guarantor has been released in accordance with Section 504 of this Supplemental Indenture). The Guarantor understands and agrees that the Guarantee contained in this Article 5 shall be construed as a continuing, absolute and unconditional guarantee of payment and performance and not merely of collectability, and its Guarantee of a particular series of Notes and the obligations of the Company under the Indenture hereunder shall not be affected by, and shall remain in full force and effect without regard to, and hereby waives all rights, claims or defenses that it might otherwise have (now or in the future) with respect to each of the following (whether or not the Guarantor has knowledge thereof): (i) the validity, regularity or enforceability of the Notes of such series or the Indenture or the absence of any action to enforce the same, (ii) the recovery of any judgment against the Company or any action to enforce the same, (iii) any renewal, extension or acceleration of, or any increase in the amount of the Company's obligations under such series of Notes and under the Indenture (whether or not any increase is committed, contemplated or provided for by the Indenture or the Notes of such series on the date hereof), (iii) any failure, omission or delay in enforcement (by agreement or otherwise), or the stay or enjoining (by court order, operation of law or otherwise) of the exercise of enforcement, of any claim or demand or any right, power or remedy (whether arising under the Indenture or the Notes of such series, at law, in equity or otherwise) with respect to the Company's obligations under such series of Notes and under the Indenture or (iv) any other circumstance whatsoever (with or without notice to or knowledge of the Guarantor) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Guarantor under the Guarantee contained in this Article 5, in bankruptcy or in any other instance (in each case, other than the occurrence of the Termination Date or the release of the Guarantor in accordance with Section 504 of this Supplemental Indenture).
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(e) The Guarantor further agrees that, as between the Guarantor, on the one hand, and the Holders and the Trustee, on the other hand (i) subject to the terms and provisions of this Supplemental Indenture, the maturity of the obligations under an applicable series of Notes guaranteed hereby may be accelerated as provided in Article VI of the Original Indenture for the purposes of this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (ii) in the event of any acceleration of such obligations as provided in Article VI of the Original Indenture, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor for the purpose of this Guarantee.
(f) Subject to Section 504 of this Supplemental Indenture, the Guarantee of a series of Notes contained in this Article 5 shall remain in full force and effect until all the obligations of the Company under such series of Notes and under the Indenture shall have been satisfied by payment in full (such date, the "Termination Date") .
(g) The Guarantee by the Guarantor of a series of Notes shall be independent of and shall not be affected by the Guarantee by the Guarantor of any other series of Notes or other Debt Securities issued under the Indenture.
SECTION 502 Subrogation. The Guarantor shall be subrogated to all rights of Holders against the Company in respect of any amounts paid by the Guarantor pursuant to its Guarantee; provided, however, that if an Event of Default has occurred and is continuing with respect to a series of Notes, the Guarantor shall not be entitled to enforce or receive any payments arising out of, or based upon, such right of subrogation until all amounts then due and payable by the Company under the Indenture or the applicable series of Notes shall have been paid in full.
SECTION 503 Reinstatement. Subject to Section 504 of this Supplemental Indenture, the Guarantee of a series of Notes contained in this Article 5 shall continue to be effective, or be reinstated, as the case may be, if at any time payment, or any part thereof, of any of the Company's obligations with respect to such series of Notes or the Indenture is rescinded or must otherwise be restored or returned by the Trustee or any Holder upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of the Guarantor, or upon or as a result of the appointment of a receiver, intervenor or conservator of, or trustee or similar officer for, the Guarantor or any substantial part of its property, or otherwise, all as though such payments had not been made.
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SECTION 504 Release of Guarantee. (a) The Guarantor shall, upon the occurrence of any of the following events, be automatically and unconditionally released and discharged from all obligations with respect to the Notes of an applicable series, the Indenture and the Guarantee of such series of Notes without any action required on the part of the Trustee or any Holder:
(i) on the Termination Date;
(ii) upon the termination or release of the Company's guarantee of the Guarantor's obligations under the Credit Agreement;
(iii) upon any covenant defeasance or legal defeasance with respect to such series of Notes and the Indenture, or upon the discharge of the Company's obligations with respect to such series of Notes and obligations under the Indenture in accordance with its terms;
(iv) upon (A) the consolidation or merger by the Company with or into any Person or (B) the conveyance, transfer or lease of all or substantially all the assets of the Company, in a transaction that complies with the Indenture, such that the Company ceases to be a subsidiary of the Guarantor; or
(v) upon (A) the consolidation or merger by the Guarantor with or into any Person or (B) the conveyance, transfer or lease of all or substantially all the assets of the Guarantor, such that the Company ceases to be a subsidiary of the Guarantor.
The release of the Guarantor's Guarantee of an applicable series of Notes hereunder shall be independent of and shall not be affected by the release of the Guarantor's Guarantee of any other series of Notes or other Debt Securities issued under the Indenture.
SECTION 505 Execution and Delivery. The Guarantor hereby agrees that the Guarantee of an applicable series of Notes will remain in full force and effect notwithstanding any failure to endorse on each Note of such series a notation of such Guarantee.
ARTICLE 6
MISCELLANEOUS PROVISIONS
The Trustee makes no undertaking or representations in respect of, and shall not be responsible in any manner whatsoever for and in respect of, the validity or sufficiency of this Supplemental Indenture or the Guarantees or the proper authorization or the due execution hereof by the Company or the Guarantor or for or in respect of the recitals and statements contained herein, all of which recitals and statements are made solely by the Company.
27
The Trustee (which shall be deemed to include the Paying Agent when the Trustee is also acting as a Paying Agent) shall have the right to accept and act upon instructions, including funds transfer instructions ("Instructions") given pursuant to this Indenture and delivered using Electronic Means (as defined above); provided, however, that the Company shall provide to the Trustee an incumbency certificate listing officers with the authority to provide such Instructions ("Authorized Officers") and containing specimen signatures of such Authorized Officers, which incumbency certificate shall be amended by the Company whenever a person is to be added or deleted from the listing. If the Company elects to give the Trustee Instructions using Electronic Means and the Trustee in its discretion elects to act upon such Instructions, the Trustee's understanding of such Instructions shall be deemed controlling. The Company understands and agrees that the Trustee cannot determine the identity of the actual sender of such Instructions and that the Trustee shall conclusively presume that directions that purport to have been sent by an Authorized Officer listed on the incumbency certificate provided to the Trustee have been sent by such Authorized Officer. The Company shall be responsible for ensuring that only Authorized Officers transmit such Instructions to the Trustee and that the Company and all Authorized Officers are solely responsible to safeguard the use and confidentiality of applicable user and authorization codes, passwords and/or authentication keys upon receipt by the Company. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee's reliance upon and compliance with such Instructions notwithstanding such directions conflict or are inconsistent with a subsequent written instruction. The Company agrees: (i) to assume all risks arising out of the use of Electronic Means to submit Instructions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized Instructions, and the risk of interception and misuse by third parties; (ii) that it is fully informed of the protections and risks associated with the various methods of transmitting Instructions to the Trustee and that there may be more secure methods of transmitting Instructions than the method(s) selected by the Company; (iii) that the security procedures (if any) to be followed in connection with its transmission of Instructions provide to it a commercially reasonable degree of protection in light of its particular needs and circumstances; and (iv) to notify the Trustee immediately upon learning of any compromise or unauthorized use of the security procedures.
For purposes of this Supplemental Indenture and the Notes, Section 7.02 of the Original Indenture is hereby amended to include the following additional rights of the Trustee:
(i) in no event shall the Trustee be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action;
(j) in no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, epidemics or pandemics, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances;
(k) the Trustee shall not be deemed to have notice of any Default or Event of Default unless a Responsible Officer of the Trustee has actual written notice thereof at the designated Corporate Trust Office of the Trustee, and such notice references the Notes and this Indenture;
(1) the rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder;
(m) the Trustee may require that the Company deliver a certificate setting forth the names of individuals, and their titles and direct-dial telephone numbers, of officers authorized at such time to take specified actions pursuant to this Indenture;
28
(n) the Trustee shall not be liable for errors in judgment made in good faith unless it is proved that the Trustee was grossly negligent in ascertaining the pertinent facts; and
(o) the Trustee may act at the direction of requisite Holders without liability.
For purposes of this Supplemental Indenture and the Notes, Section 2.04 of the Original Indenture is hereby amended as follows:
(a) the Company shall be permitted to execute the Notes by manual or electronic signature (so long as any such electronic signature is a true representation of the actual signature of the signatory thereof) ; and
(b) the Trustee shall be permitted to authenticate the Notes by manual or electronic signature (so long as any such electronic signature is a true representation of the actual signature of the signatory thereof).
This Supplemental Indenture shall be governed by, and construed in accordance with, the laws of the State of New York.
Each of the Company, the Guarantor and the Trustee (i) expressly and irrevocably consents to submit itself to the exclusive personal jurisdiction of the state courts in the Borough of Manhattan in the City of New York in the State of New York, and any federal court located in the Borough of Manhattan in the City of New York in the State of New York, together with any appellate court therefrom, with respect to all actions and proceedings arising out of this Indenture, the Notes or the Guarantees and (ii) expressly and irrevocably waives (and agrees not to plead or claim) any objection to the laying of venue of any action or proceeding arising out of this Indenture, the Notes or the Guarantees in such court or that any such action or proceeding brought in any such court has been brought in an inconvenient forum.
This Supplemental Indenture may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument. Any such counterparts may be executed manually or electronically.
EACH OF THE COMPANY, THE GUARANTOR, THE TRUSTEE AND THE HOLDERS BY ACCEPTANCE OF THE NOTES HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS SUPPLEMENTAL INDENTURE, THE NOTES OR THE TRANSACTION CONTEMPLATED HEREBY.
In order to comply with applicable tax laws (inclusive of rules, regulations and interpretations promulgated by competent authorities) related to the Indenture in effect from time to time (collectively, "Applicable Tax Law") that a foreign financial institution, issuer, trustee, paying agent or other party is or has agreed to be subject to, the Company agrees (i) upon reasonable written request of the Trustee, to use commercially reasonable efforts to provide to the Trustee, to the extent available, sufficient information about the parties and/or transactions (including any modification to the terms of such transactions) so that the Trustee can determine whether it has tax-related obligations under Applicable Tax Law and (ii) that the Trustee shall be entitled to make any withholding or deduction in respect of taxes from payments under the Indenture to the extent necessary to comply with Applicable Tax Law for which the Trustee shall not have any liability. Nothing in the immediately preceding sentence shall be construed as obligating the Company to make any "gross up" payment or similar reimbursement in connection with a payment in respect of which amounts are so withheld or deducted. The terms of this paragraph shall survive the satisfaction and discharge of the Indenture.
[SIGNATURE PAGES FOLLOW]
29
IN WITNESS WHEREOF, the Parties have executed this Supplemental Indenture by their duly authorized signatories as of the date first above written.
COX COMMUNICATIONS, INC., as Issuer | |||
| By: | /s/ Perley McBride | ||
| Name: | Perley McBride | ||
| Title: | Executive Vice President and Chief Financial Officer | ||
| By: | /s/ Charles L. Odom | ||
| Name: Charles L. Odom | |||
| Title: Vice President and Treasurer | |||
[Signature Page to Twenty-Second Supplemental Indenture]
| COX ENTERPRISES, INC., as Guarantor | |||
| By: | /s/ Maria L. Friedman | ||
| Name: | Maria L. Friedman | ||
| Title: | Executive Vice President, Finance | ||
| By: | /s/ Charles L. Odom | ||
| Name: | Charles L. Odom | ||
| Title: | Senior Vice President, Corporate Finance & Treasurer | ||
[Signature Page to Twenty-Second Supplemental Indenture]
| THE BANK OF NEW YORK MELLON TRUST | |||
| COMPANY, N.A., as Trustee | |||
| By: | /s/ Michael C. Jenkins | ||
| Name: | Michael C. Jenkins | ||
| Title: | Vice President | ||
[Signature Page to Twenty-Second Supplemental Indenture]
EXHIBIT A-l(i)
[FORM OF FACE OF SECURITY]
[TRANSFER RESTRICTION LEGEND]
[THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS A NON-U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION WITHIN THE MEANING OF REGULATIONS UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH THE LAWS APPLICABLE TO SUCH PURCHASER IN THE JURISDICTION IN WHICH SUCH PURCHASE IS MADE AND (2) AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE RESTRICTION TERMINATION DATE") THAT IS ONE YEAR AFTER THE LATEST OF THE ISSUE DATE HEREOF, THE ORIGINAL ISSUE DATE OF ANY ADDITIONAL NOTES (AS DEFINED IN THE INDENTURE GOVERNING THIS SECURITY) AND THE LAST DATE ON WHICH THE COMPANY OR ANY OF ITS AFFILIATES WERE THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE COMPANY, THE GUARANTOR OR ANY SUBSIDIARY THEREOF, (B) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH THE LAWS APPLICABLE TO IT IN THE JURISDICTION IN WHICH SUCH PURCHASE IS MADE, (D) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S, OR REGISTRAR'S, AS APPLICABLE, RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (C) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE FOREGOING CASES, A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE OR REGISTRAR. THIS LEGEND WILL BE REMOVED UPON THE WRITTEN REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.]
A-l(i)-1
[GLOBAL NOTES LEGEND]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON 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.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS, IN WHOLE BUT NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN ARTICLE TWO OF THE TWENTY-SECOND SUPPLEMENTAL INDENTURE REFERRED TO ON THE REVERSE HEREOF.]
A-l(i)-2
| No. R- | PRINCIPAL AMOUNT |
| CUSIP No. 224044 CU9 | $ |
COX COMMUNICATIONS, INC.
5.450% Notes due 2034
COX COMMUNICATIONS, INC., a Delaware corporation (hereinafter called the "Company," which term includes any successor corporation under the Indenture referred to below), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of [ ] ($ ) on September 1, 2034 (the "Maturity Date"), unless previously redeemed, and to pay interest thereon from August 20, 2024 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, payable semiannually on March 1 and September 1 of each year (each, an "Interest Payment Date"), commencing March 1, 2025 at the rate of 5.450% per annum, until the principal hereof is paid or duly made available for payment. Interest shall be computed on the basis of a 360-day year of twelve 30-day months. The interest so payable and punctually paid or duly provided for on any Interest Payment Date will, as provided in the Indenture, be paid to the Person in whose name this Note (or one or more predecessor securities) is registered at the close of business on the regular record date for such interest, which shall be February 15 or August 15 (whether or not a Business Day), as the case may be, immediately preceding such Interest Payment Date. Any such interest which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date shall forthwith cease to be payable to the registered Holder hereof on the relevant regular record date by virtue of having been such Holder, and may be paid to the Person in whose name this Note (or one or more predecessor securities) is registered at the close of business on a subsequent special record date (which shall be not more than 15 days and not less than 10 days before the payment date) for the payment of such defaulted interest to be fixed by the Trustee, notice whereof shall be given to the Holders of Notes of this series not less than 10 days prior to such special record date, or may be paid at any time in any other lawful manner, all as more fully provided in such Indenture. If any Interest Payment Date, Redemption Date or the Maturity Date falls on a day that is not a Business Day, the required payment shall be made on the next Business Day as if it were made on the date such payment was due and no interest shall accrue on the amount so payable for the period from and after such Interest Payment Date, Redemption Date or the Maturity Date, as the case may be, to such next Business Day. Payments of principal, premium, if any, and interest hereunder shall be made in such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts and shall be made immediately available to the Holder (as defined below) hereof.
This Note is one of the duly authorized series of Debt Securities of the Company, designated as the Company's "5.450% Notes due 2034" (the "Notes"), initially limited to an aggregate principal amount of $750,000,000, all issued or to be issued under and pursuant to an Indenture dated as of June 27, 1995 (the "Original Indenture"), as supplemented by the Twenty-Second Supplemental Indenture dated as of August 20, 2024 (the "Twenty-Second Supplemental Indenture" and, together with the Original Indenture, the "Indenture"), duly executed and delivered by the Company and Cox Enterprises, Inc., a Delaware corporation, as guarantor (the "Guarantor"), to The Bank of New York Mellon Trust Company, N.A, as trustee (hereinafter referred to as the "Trustee"), to which Indenture and all indentures supplemental thereto reference is hereby made for a description of the rights, limitation of rights, obligations, duties and immunities thereunder of the Trustee, the Company, the Guarantor and the Holders (the words "Holders" or "Holder" meaning the registered holders or registered holder of the Notes).
A-l(i)-3
The Notes and the obligations of the Company thereunder and under the Indenture shall be fully and unconditionally guaranteed on a senior unsecured basis by the Guarantor (the "Guarantee"). The Guarantee will be automatically and unconditionally released and discharged upon the occurrence of certain events without any action required on the part of the Trustee or any Holder in accordance with the terms of the Twenty-Second Supplemental Indenture.
Prior to the Par Call Date, this Note will be redeemable at the option of the Company, in whole or in part, at any time and from time to time, at a Redemption Price (expressed as a percentage of principal amount and rounded to three decimal places) equal to the greater of (i) (a) the sum of the present values of the remaining scheduled payments of principal and interest thereon discounted to the Redemption Date (assuming this Note matured on the Par Call Date) on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as defined below) plus 25 basis points, less (b) interest accrued to the Redemption Date, and (ii) 100% of the principal amount of this Note to be redeemed, plus, in either case, accrued and unpaid interest thereon to the Redemption Date. On or after the Par Call Date, this Note will be redeemable at the option of the Company, in whole or in part, at any time and from time to time, at a Redemption Price equal to 100% of the principal amount of this Note being redeemed, plus accrued and unpaid interest thereon to the Redemption Date.
"Par Call Date" means June 1, 2034.
"Treasury Rate" means, with respect to any Redemption Date, the yield determined by the Company in accordance with the following paragraphs.
The Treasury Rate shall be determined by the Company after 4: 15 p.m., New York City time (or after such time as yields on U.S. government securities are posted daily by the Board of Governors of the Federal Reserve System), on the third business day preceding the Redemption Date based upon the yield or yields for the most recent day that appear after such time on such day in the most recent statistical release published by the Board of Governors of the Federal Reserve System designated as "Selected Interest Rates (Daily) - H. 15" (or any successor designation or publication) (H. 15) under the caption "U.S. government securities- Treasury constant maturities-Nominal" (or any successor caption or heading). In determining the Treasury Rate, the Company shall select, as applicable: (i) the yield for the Treasury constant maturity on H. 15 exactly equal to the period from the Redemption Date to the Par Call Date (the Remaining Life); or (ii) if there is no such Treasury constant maturity on H. 15 exactly equal to the Remaining Life, the two yields - one yield corresponding to the Treasury constant maturity on H. 15 immediately shorter than and one yield corresponding to the Treasury constant maturity on H. 15 immediately longer than the Remaining Life - and shall interpolate to the Par Call Date on a straight-line basis (using the actual number of days) using such yields and rounding the result to three decimal places; or (iii) if there is no such Treasury constant maturity on H. 15 shorter than or longer than the Remaining Life, the yield for the single Treasury constant maturity on H. 15 closest to the Remaining Life. For purposes of this paragraph, the applicable Treasury constant maturity or maturities on H. 15 shall be deemed to have a maturity date equal to the relevant number of months or years, as applicable, of such Treasury constant maturity from the Redemption Date.
A-1(i)-4
If on the third business day preceding the Redemption Date H. 15 or any successor designation or publication is no longer published, the Company shall calculate the Treasury Rate based on the rate per annum equal to the semi-annual equivalent yield to maturity at 11:00 a.m., New York City time, on the second business day preceding such Redemption Date of the United States Treasury security maturing on, or with a maturity that is closest to, the Par Call Date, as applicable. If there is no United States Treasury security maturing on the Par Call Date but there are two or more United States Treasury securities with a maturity date equally distant from the Par Call Date, one with a maturity date preceding the Par Call Date and one with a maturity date following the Par Call Date, the Company shall select the United States Treasury security with a maturity date preceding the Par Call Date. If there are two or more United States Treasury securities maturing on the Par Call Date or two or more United States Treasury securities meeting the criteria of the preceding sentence, the Company shall select from among these two or more United States Treasury securities the United States Treasury security that is trading closest to par based upon the average of the bid and asked prices for such United States Treasury securities at 11:00 a.m., New York City time. In determining the Treasury Rate in accordance with the terms of this paragraph, the semi-annual yield to maturity of the applicable United States Treasury security shall be based upon the average of the bid and asked prices (expressed as a percentage of principal amount) at 11:00 a.m., New York City time, of such United States Treasury security, and rounded to three decimal places.
The Company 's actions and determinations in determining the Redemption Price shall be conclusive and binding for all purposes, absent manifest error.
Notice of any redemption will be mailed or electronically delivered (or otherwise transmitted in accordance with the depositary's procedures) at least 10 days but not more than 60 days before the Redemption Date to each holder of notes to be redeemed.
In the case of a partial redemption, selection of this Note for redemption will be made pro rata, by lot or by such other method as the Trustee in its sole discretion deems appropriate and fair. No Note of a principal amount of $2,000 or less will be redeemed in part. If any Note is to be redeemed in part only, the notice of redemption that relates to this Note will state the portion of the principal amount of this Note to be redeemed. A new note in a principal amount equal to the unredeemed portion of this Note will be issued in the name of the holder of this Note upon surrender for cancellation of this Note. For so long as this Note is held by DTC (or another depositary), the redemption of this Note shall be done in accordance with the policies and procedures of the depositary.
Unless the Company defaults in payment of the Redemption Price, on and after the Redemption Date, interest will cease to accrue on this Note or portions thereof called for redemption.
If money sufficient to pay the Redemption Price and accrued and unpaid interest on the principal amount of this Note to be redeemed on the Redemption Date is deposited with the Trustee or Paying Agent on or before the Redemption Date and certain other conditions specified in the Indenture are satisfied, then on or after such date, interest will cease to accrue on the principal amount of this Note called for redemption.
Any notice of redemption may, at the Company's discretion, be subject to the satisfaction of one or more conditions precedent, and if such notice of redemption is conditioned upon the occurrence of one or more conditions precedent, such notice shall state the nature of such conditions precedent.
A-1(i)-5
Except as provided above, this Note is not redeemable by the Company prior to maturity.
This Note is not subject to any sinking fund.
Upon the occurrence of a Change of Control Repurchase Event, unless the Company has redeemed this Note or the Company has defeased this Security or satisfied and discharged this Note, the Holder of this Note shall have the right to require that the Company purchase all or a portion (such principal amount to be equal to $2,000 or integral multiples of $1,000 in excess thereof), of this Note at a purchase price in cash in an amount equal to 101% of the principal amount thereof, plus accrued but unpaid interest, if any, to, but not including, the date of purchase. Within 30 days following any Change of Control Repurchase Event, the Company shall deliver a notice to each Holder, in accordance with Section 401(b) of the Twenty-Second Supplemental Indenture, with a copy to the Trustee, which notice shall govern the terms of the Change of Control Offer. Notice of any redemption pursuant to the Change of Control Offer will be mailed or delivered electronically at least 15 days but not more than 60 days before the Redemption Date to the Holder hereof in accordance with the Twenty-Second Supplemental Indenture.
In case an Event of Default shall occur and be continuing, the principal hereof may be declared, and upon such declaration shall become, due and payable, in the manner, with the effect and subject to the conditions provided in the Indenture.
Subject to certain exceptions set forth in the Indenture, (i) the Indenture may be amended with respect to the Notes with the consent of the Holders of at least a majority in principal amount outstanding of the Notes and (ii) any default or noncompliance with any provisions applicable to the Notes may be waived with the consent of the Holders of a majority in principal amount outstanding of the Notes. Subject to certain exceptions set forth in the Indenture, without the consent of any Holder, the Company and the Trustee may amend the Indenture or the Notes to, among other things, cure any ambiguity, defect or inconsistency, or to provide for the assumption by a successor person of the obligations of the Company under the Indenture, or to add additional covenants or surrender any right or power conferred on the Company, or to establish the form or terms of the Notes of any series, or to appoint a successor Trustee or provide for administration of the trust by more than one Trustee, or to add to, delete from or revise the conditions, limitations, and restrictions on the authorized amount, terms or purposes of issue, authentication and delivery of the Notes or to add any additional event of default, or to modify the provisions of the Indenture as shall be necessary to facilitate the defeasance and discharge of the Notes as shall not adversely affect any Holders, or to secure the Notes, or to make provisions with respect to exchange rights of Holders, or to make any change that does not adversely affect the rights of any Holder.
Subject to certain conditions, the Company at any time may terminate some or all of its obligations and the obligations of the Guarantor under the Notes and the Indenture if the Company deposits with the Trustee money or U.S. Government Obligations for the payment of principal, premium, if any, and interest on the Notes to the Maturity Date.
If money for the payment of principal or interest remains unclaimed for two years, the Trustee or Paying Agent shall pay the money back to the Company at its request unless an abandoned property law designates another Person. After any such payment, Holders entitled to the money must look only to the Company and not to the Trustee for payment.
A-1(i)-6
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and premium, if any, and interest on this Note at the place, at the respective times, at the rate, and in the coin or currency herein prescribed.
No director, officer, employee or stockholder, as such, of the Company or the Guarantor shall have any liability for any obligations of the Company under this Note or the Indenture or the obligations of the Guarantor under the Indenture, as applicable, or for any claim based on, in respect of or by reason of such obligations or their creation. Each Holder, by accepting this Note, waives and releases all such liability. The waiver and release are part of the consideration for the issue of this Note.
This Note and the Indenture shall be governed by and construed in accordance with the law of the State of New York applicable to agreements made or instruments entered into and, in each case, performed in said state.
Ownership of this Note shall be proved by the register for the Notes kept by the Registrar. The Company, the Trustee and any agent of the Company may treat the Person in whose name a Note is registered as the absolute owner thereof for all purposes.
Pursuant to a recommendation promulgated by the Committee on Uniform Securities Identification Procedures ("CUSIP"), the Company has caused a CUSIP number to be printed on this Note and has directed the Trustee to use the CUSIP number as a convenience to Holders. No representation is made as to the correctness of such numbers and reliance may be placed only on the other identification numbers printed on this Note.
Terms used herein without definition that are defined in the Indenture shall have the meanings assigned to them in the Indenture.
Unless the Certificate of Authentication hereon has been executed by the Trustee under the Indenture referred to herein by the manual or electronic signature of one of its authorized officers, or on behalf of the Trustee by the manual or electronic signature of an authorized officer of the Trustee's authenticating agent, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
[Remainder of Page Intentionally Left Blank]
A-1(i)-7
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
Date: August 20, 2024
| COX COMMUNICATIONS, INC. | ||
| By: | ||
| Name: Perley McBride | ||
| Title: Executive Vice President and Chief Financial Officer | ||
| By: | ||
| Name: Charles L. Odom | ||
| Title: Vice President and Treasurer |
[Signature Page to Global Note]
CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated therein referred to in the within-mentioned Indenture.
| THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A. | ||
| as Trustee | ||
| By: | ||
| Authorized Signatory | ||
| Dated: | ||
[Signature Page to Global Note]
ASSIGNMENT FORM
| FOR VALUE RECEIVED, the undersigned hereby sell(s) assign(s) and transfer(s) unto | |
| Please insert social security number 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 attorney to transfer said Note of Cox Communications, Inc. on the books of Cox Communications, Inc. 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 this Note in every particular without alteration or enlargement or any change whatsoever. The Signature must be guaranteed by an “eligible guarantor institution meeting the requirements of the Registrar, which requirements include memberships or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934.
EXHIBIT A-l(ii)
[FORM OF FACE OF SECURITY]
[TRANSFER RESTRICTION LEGEND]
[THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS A NON-U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH THE LAWS APPLICABLE TO SUCH PURCHASER IN THE JURISDICTION IN WHICH SUCH PURCHASE IS MADE AND (2) AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE RESTRICTION TERMINATION DATE") THAT IS ONE YEAR AFTER THE LATEST OF THE ISSUE DATE HEREOF, THE ORIGINAL ISSUE DATE OF ANY ADDITIONAL NOTES (AS DEFINED IN THE INDENTURE GOVERNING THIS SECURITY) AND THE LAST DATE ON WHICH THE COMPANY OR ANY OF ITS AFFILIATES WERE THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE COMPANY, THE GUARANTOR OR ANY SUBSIDIARY THEREOF (B) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATIONS UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH THE LAWS APPLICABLE TO IT IN THE JURISDICTION IN WHICH SUCH PURCHASE IS MADE, (D) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY’S AND THE TRUSTEE’S, OR REGISTRAR’S, AS APPLICABLE, RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (C) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE FOREGOING CASES, A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE OR REGISTRAR. THIS LEGEND WILL BE REMOVED UPON THE WRITTEN REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.]
A-1(ii)-1
[GLOBAL NOTES LEGEND]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON 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.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS, IN WHOLE BUT NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN ARTICLE TWO OF THE TWENTY-SECOND SUPPLEMENTAL INDENTURE REFERRED TO ON THE REVERSE HEREOF.]
A-1(ii)-2
| No. R- | PRINCIPAL AMOUNT |
| CUSIP No. 224044 CV 7 | $ |
COX COMMUNICATIONS, INC.
5.950% Notes due 2054
COX COMMUNICATIONS, INC., a Delaware corporation (hereinafter called the "Company," which term includes any successor corporation under the Indenture referred to below), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of [ ] ($ ) on September 1, 2054 (the "Maturity Date"), unless previously redeemed, and to pay interest thereon from August 20, 2024 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, payable semiannually on March 1 and September 1 of each year (each, an "Interest Payment Date"), commencing March 1, 2025 at the rate of 5.950% per annum, until the principal hereof is paid or duly made available for payment. Interest shall be computed on the basis of a 360-day year of twelve 30-day months. The interest so payable and punctually paid or duly provided for on any Interest Payment Date will, as provided in the Indenture, be paid to the Person in whose name this Note (or one or more predecessor securities) is registered at the close of business on the regular record date for such interest, which shall be February 15 or August 15 (whether or not a Business Day), as the case may be, immediately preceding such Interest Payment Date. Any such interest which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date shall forthwith cease to be payable to the registered Holder hereof on the relevant regular record date by virtue of having been such Holder, and may be paid to the Person in whose name this Note (or one or more predecessor securities) is registered at the close of business on a subsequent special record date (which shall be not more than 15 days and not less than 10 days before the payment date) for the payment of such defaulted interest to be fixed by the Trustee, notice whereof shall be given to the Holders of Notes of this series not less than 10 days prior to such special record date, or may be paid at any time in any other lawful manner, all as more fully provided in such Indenture. If any Interest Payment Date, Redemption Date or the Maturity Date falls on a day that is not a Business Day, the required payment shall be made on the next Business Day as if it were made on the date such payment was due and no interest shall accrue on the amount so payable for the period from and after such Interest Payment Date, Redemption Date or the Maturity Date, as the case may be, to such next Business Day. Payments of principal, premium, if any, and interest hereunder shall be made in such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts and shall be made immediately available to the Holder (as defined below) hereof.
This Note is one of the duly authorized series of Debt Securities of the Company, designated as the Company's "5.950% Notes due 2054" (the "Notes"), initially limited to an aggregate principal amount of $750,000,000, all issued or to be issued under and pursuant to an Indenture dated as of June 27, 1995 (the "Original Indenture"), as supplemented by the Twenty-Second Supplemental Indenture dated as of August 20, 2024 (the "Twenty-Second Supplemental Indenture" and, together with the Original Indenture, the "Indenture"), duly executed and delivered by the Company and Cox Enterprises, Inc., a Delaware corporation, as guarantor (the "Guarantor"), to The Bank of New York Mellon Trust Company, N.A, as trustee (hereinafter referred to as the "Trustee"), to which Indenture and all indentures supplemental thereto reference is hereby made for a description of the rights, limitation of rights, obligations, duties and immunities thereunder of the Trustee, the Company, the Guarantor and the Holders (the words "Holders" or "Holder" meaning the registered holders or registered holder of the Notes).
A-1(ii)-3
The Notes and the obligations of the Company thereunder and under the Indenture shall be fully and unconditionally guaranteed on a senior unsecured basis by the Guarantor (the "Guarantee"). The Guarantee will be automatically and unconditionally released and discharged upon the occurrence of certain events without any action required on the part of the Trustee or any Holder in accordance with the terms of the Twenty-Second Supplemental Indenture.
Prior to the Par Call Date, this Note will be redeemable at the option of the Company, in whole or in part, at any time and from time to time, at a Redemption Price (expressed as a percentage of principal amount and rounded to three decimal places) equal to the greater of (i) (a) the sum of the present values of the remaining scheduled payments of principal and interest thereon discounted to the Redemption Date (assuming this Note matured on the Par Call Date) on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as defined below) plus 30 basis points, less (b) interest accrued to the Redemption Date, and (ii) 100% of the principal amount of this Note to be redeemed, plus, in either case, accrued and unpaid interest thereon to the Redemption Date. On or after the Par Call Date, this Note will be redeemable at the option of the Company, in whole or in part, at any time and from time to time, at a Redemption Price equal to 100% of the principal amount of this Note being redeemed, plus accrued and unpaid interest thereon to the Redemption Date.
"Par Call Date" means March 1, 2054. ♦
"Treasury Rate" means, with respect to any Redemption Date, the yield determined by the Company in accordance with the following paragraphs.
The Treasury Rate shall be determined by the Company after 4: 15 p.m., New York City time (or after such time as yields on U.S. government securities are posted daily by the Board of Governors of the Federal Reserve System), on the third business day preceding the Redemption Date based upon the yield or yields for the most recent day that appear after such time on such day in the most recent statistical release published by the Board of Governors of the Federal Reserve System designated as "Selected Interest Rates (Daily) - H. 15" (or any successor designation or publication) (H. 15) under the caption "U.S. government securities- Treasury constant maturities-Nominal" (or any successor caption or heading). In determining the Treasury Rate, the Company shall select, as applicable: (i) the yield for the Treasury constant maturity on H. 15 exactly equal to the period from the Redemption Date to the Par Call Date (the Remaining Life); or (ii) if there is no such Treasury constant maturity on H. 15 exactly equal to the Remaining Life, the two yields - one yield corresponding to the Treasury constant maturity on H. 15 immediately shorter than and one yield corresponding to the Treasury constant maturity on H. 15 immediately longer than the Remaining Life - and shall interpolate to the Par Call Date on a straight-line basis (using the actual number of days) using such yields and rounding the result to three decimal places; or (iii) if there is no such Treasury constant maturity on H. 15 shorter than or longer than the Remaining Life, the yield for the single Treasury constant maturity on H. 15 closest to the Remaining Life. For purposes of this paragraph, the applicable Treasury constant maturity or maturities on H. 15 shall be deemed to have a maturity date equal to the relevant number of months or years, as applicable, of such Treasury constant maturity from the Redemption Date.
A-1(ii)-4
If on the third business day preceding the Redemption Date H. 15 or any successor designation or publication is no longer published, the Company shall calculate the Treasury Rate based on the rate per annum equal to the semi-annual equivalent yield to maturity at 1 1:00 a.m., New York City time, on the second business day preceding such Redemption Date of the United States Treasury security maturing on, or with a maturity that is closest to, the Par Call Date, as applicable. If there is no United States Treasury security maturing on the Par Call Date but there are two or more United States Treasury securities with a maturity date equally distant from the Par Call Date, one with a maturity date preceding the Par Call Date and one with a maturity date following the Par Call Date, the Company shall select the United States Treasury security with a maturity date preceding the Par Call Date. If there are two or more United States Treasury securities maturing on the Par Call Date or two or more United States Treasury securities meeting the criteria of the preceding sentence, the Company shall select from among these two or more United States Treasury securities the United States Treasury security that is trading closest to par based upon the average of the bid and asked prices for such United States Treasury securities at 11:00 a.m., New York City time. In determining the Treasury Rate in accordance with the terms of this paragraph, the semi-annual yield to maturity of the applicable United States Treasury security shall be based upon the average of the bid and asked prices (expressed as a percentage of principal amount) at 1 1:00 a.m., New York City time, of such United States Treasury security, and rounded to three decimal places.
The Company 's actions and determinations in determining the Redemption Price shall be conclusive and binding for all purposes, absent manifest error.
Notice of any redemption will be mailed or electronically delivered (or otherwise transmitted in accordance with the depositary's procedures) at least 10 days but not more than 60 days before the Redemption Date to each holder of notes to be redeemed.
In the case of a partial redemption, selection of this Note for redemption will be made pro rata, by lot or by such other method as the Trustee in its sole discretion deems appropriate and fair. No Note of a principal amount of $2,000 or less will be redeemed in part. If any Note is to be redeemed in part only, the notice of redemption that relates to this Note will state the portion of the principal amount of this Note to be redeemed. A new note in a principal amount equal to the unredeemed portion of this Note will be issued in the name of the holder of this Note upon surrender for cancellation of this Note. For so long as this Note is held by DTC (or another depositary), the redemption of this Note shall be done in accordance with the policies and procedures of the depositary.
Unless the Company defaults in payment of the Redemption Price, on and after the Redemption Date, interest will cease to accrue on this Note or portions thereof called for redemption.
If money sufficient to pay the Redemption Price and accrued and unpaid interest on the principal amount of this Note to be redeemed on the Redemption Date is deposited with the Trustee or Paying Agent on or before the Redemption Date and certain other conditions specified in the Indenture are satisfied, then on or after such date, interest will cease to accrue on the principal amount of this Note called for redemption.
Any notice of redemption may, at the Company's discretion, be subject to the satisfaction of one or more conditions precedent, and if such notice of redemption is conditioned upon the occurrence of one or more conditions precedent, such notice shall state the nature of such conditions precedent.
A-1(ii)-5
Except as provided above, this Note is not redeemable by the Company prior to maturity.
This Note is not subject to any sinking fund.
Upon the occurrence of a Change of Control Repurchase Event, unless the Company has redeemed this Note or the Company has defeased this Security or satisfied and discharged this Note, the Holder of this Note shall have the right to require that the Company purchase all or a portion (such principal amount to be equal to $2,000 or integral multiples of $1,000 in excess thereof), of this Note at a purchase price in cash in an amount equal to 101% of the principal amount thereof, plus accrued but unpaid interest, if any, to, but not including, the date of purchase. Within 30 days following any Change of Control Repurchase Event, the Company shall deliver a notice to each Holder, in accordance with Section 401(b) of the Twenty-Second Supplemental Indenture, with a copy to the Trustee, which notice shall govern the terms of the Change of Control Offer. Notice of any redemption pursuant to the Change of Control Offer will be mailed or delivered electronically at least 15 days but not more than 60 days before the Redemption Date to the Holder hereof in accordance with the Twenty-Second Supplemental Indenture.
In case an Event of Default shall occur and be continuing, the principal hereof may be declared, and upon such declaration shall become, due and payable, in the manner, with the effect and subject to the conditions provided in the Indenture.
Subject to certain exceptions set forth in the Indenture, (i) the Indenture may be amended with respect to the Notes with the consent of the Holders of at least a majority in principal amount outstanding of the Notes and (ii) any default or noncompliance with any provisions applicable to the Notes may be waived with the consent of the Holders of a majority in principal amount outstanding of the Notes. Subject to certain exceptions set forth in the Indenture, without the consent of any Holder, the Company and the Trustee may amend the Indenture or the Notes to, among other things, cure any ambiguity, defect or inconsistency, or to provide for the assumption by a successor person of the obligations of the Company under the Indenture, or to add additional covenants or surrender any right or power conferred on the Company, or to establish the form or terms of the Notes of any series, or to appoint a successor Trustee or provide for administration of the trust by more than one Trustee, or to add to, delete from or revise the conditions, limitations, and restrictions on the authorized amount, terms or purposes of issue, authentication and delivery of the Notes or to add any additional event of default, or to modify the provisions of the Indenture as shall be necessary to facilitate the defeasance and discharge of the Notes as shall not adversely affect any Holders, or to secure the Notes, or to make provisions with respect to exchange rights of Holders, or to make any change that does not adversely affect the rights of any Holder.
Subject to certain conditions, the Company at any time may terminate some or all of its obligations and the obligations of the Guarantor under the Notes and the Indenture if the Company deposits with the Trustee money or U.S. Government Obligations for the payment of principal, premium, if any, and interest on the Notes to the Maturity Date.
If money for the payment of principal or interest remains unclaimed for two years, the Trustee or Paying Agent shall pay the money back to the Company at its request unless an abandoned property law designates another Person. After any such payment, Holders entitled to the money must look only to the Company and not to the Trustee for payment.
A-1(ii)-6
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and premium, if any, and interest on this Note at the place, at the respective times, at the rate, and in the coin or currency herein prescribed.
No director, officer, employee or stockholder, as such, of the Company or the Guarantor shall have any liability for any obligations of the Company under this Note or the Indenture or the obligations of the Guarantor under the Indenture, as applicable, or for any claim based on, in respect of or by reason of such obligations or their creation. Each Holder, by accepting this Note, waives and releases all such liability. The waiver and release are part of the consideration for the issue of this Note.
This Note and the Indenture shall be governed by and construed in accordance with the law of the State of New York applicable to agreements made or instruments entered into and, in each case, performed in said state.
Ownership of this Note shall be proved by the register for the Notes kept by the Registrar. The Company, the Trustee and any agent of the Company may treat the Person in whose name a Note is registered as the absolute owner thereof for all purposes.
Pursuant to a recommendation promulgated by the Committee on Uniform Securities Identification Procedures ("CUSIP"), the Company has caused a CUSIP number to be printed on this Note and has directed the Trustee to use the CUSIP number as a convenience to Holders. No representation is made as to the correctness of such numbers and reliance may be placed only on the other identification numbers printed on this Note.
Terms used herein without definition that are defined in the Indenture shall have the meanings assigned to them in the Indenture.
Unless the Certificate of Authentication hereon has been executed by the Trustee under the Indenture referred to herein by the manual or electronic signature of one of its authorized officers, or on behalf of the Trustee by the manual or electronic signature of an authorized officer of the Trustee's authenticating agent, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
[Remainder of Page Intentionally Left Blank]
A-1(ii)-7
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
Date: August 20, 2024
| COX COMMUNICATIONS, INC. | ||
| By: | ||
| Name: Perley McBride | ||
| Title: Executive Vice President and Chief Financial Officer | ||
| By: | ||
| Name: Charles L. Odom | ||
| Title: Vice President and Treasurer |
[Signature Page to Global Note]
CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated therein referred to in the within-mentioned Indenture.
| THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A. | ||
| as Trustee | ||
| By: | ||
| Authorized Signatory | ||
| Dated: | ||
[Signature Page to Global Note]
ASSIGNMENT FORM
| FOR VALUE RECEIVED, the undersigned hereby sell(s) assign(s) and transfer(s) unto | |
| Please insert social security number 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 attorney to transfer said Note of Cox Communications, Inc. on the books of Cox Communications, Inc. 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 this Note in every particular without alteration or enlargement or any change whatsoever. The Signature must be guaranteed by an “eligible guarantor institution meeting the requirements of the Registrar, which requirements include memberships or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934.
EXHIBIT A-2(i)
[FORM OF FACE OF SECURITY]
[TRANSFER RESTRICTION LEGEND]
[THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS A NON-U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH THE LAWS APPLICABLE TO SUCH PURCHASER IN THE JURISDICTION IN WHICH SUCH PURCHASE IS MADE AND (2) AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE RESTRICTION TERMINATION DATE") THAT IS 40 DAYS AFTER THE LATEST OF THE ISSUE DATE HEREOF, THE ORIGINAL ISSUE DATE OF ANY ADDITIONAL NOTES (AS DEFINED IN THE INDENTURE GOVERNING THIS SECURITY) AND THE DATE ON WHICH THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) WAS FIRST OFFERED TO PERSONS OTHER THAN DISTRIBUTORS (AS DEFINED IN RULE 902 OF REGULATIONS) IN RELIANCE ON REGULATIONS, ONLY (A) TO THE COMPANY, THE GUARANTOR OR ANY SUBSIDIARY THEREOF, (B) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATIONS UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH THE LAWS APPLICABLE TO IT IN THE JURISDICTION IN WHICH SUCH PURCHASE IS MADE, (D) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S, OR REGISTRAR'S, AS APPLICABLE, RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (C) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE FOREGOING CASES, A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE OR REGISTRAR. THIS LEGEND WILL BE REMOVED UPON THE WRITTEN REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE. BY ITS ACQUISITION HEREOF, THE HOLDER HEREOF REPRESENTS THAT IT IS NOT A U.S. PERSON NOR IS IT PURCHASING FOR THE ACCOUNT OF A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATIONS UNDER THE SECURITIES ACT.
A-2(i)-1
THIS GLOBAL NOTE IS A TEMPORARY GLOBAL NOTE FOR PURPOSES OF REGULATIONS UNDER THE SECURITIES ACT. NEITHER THIS TEMPORARY GLOBAL NOTE NOR ANY INTEREST HEREIN MAY BE OFFERED, SOLD OR DELIVERED, EXCEPT AS PERMITTED UNDER THE INDENTURE REFERRED TO BELOW.]
[GLOBAL NOTES LEGEND]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON 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.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS, IN WHOLE BUT NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN ARTICLE TWO OF THE TWENTY-SECOND SUPPLEMENTAL INDENTURE REFERRED TO ON THE REVERSE HEREOF.]
A-2(i)-2
| No. R- | PRINCIPAL AMOUNT | |
| CUSIP No. U22018 BF8 | $ |
COX COMMUNICATIONS, INC.
5.450% Notes due 2034
COX COMMUNICATIONS, INC., a Delaware corporation (hereinafter called the "Company," which term includes any successor corporation under the Indenture referred to below), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of [ ] ($ ) on September 1, 2034 (the "Maturity Date"), unless previously redeemed, and to pay interest thereon from August 20, 2024 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, payable semiannually on March 1 and September 1 of each year (each, an "Interest Payment Date"), commencing March 1, 2025 at the rate of 5.450% per annum, until the principal hereof is paid or duly made available for payment. Interest shall be computed on the basis of a 360-day year of twelve 30-day months. The interest so payable and punctually paid or duly provided for on any Interest Payment Date will, as provided in the Indenture, be paid to the Person in whose name this Note (or one or more predecessor securities) is registered at the close of business on the regular record date for such interest, which shall be February 15 or August 15 (whether or not a Business Day), as the case may be, immediately preceding such Interest Payment Date. Any such interest which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date shall forthwith cease to be payable to the registered Holder hereof on the relevant regular record date by virtue of having been such Holder, and may be paid to the Person in whose name this Note (or one or more predecessor securities) is registered at the close of business on a subsequent special record date (which shall be not more than 15 days and not less than 10 days before the payment date) for the payment of such defaulted interest to be fixed by the Trustee, notice whereof shall be given to the Holders of Notes of this series not less than 10 days prior to such special record date, or may be paid at any time in any other lawful manner, all as more fully provided in such Indenture. If any Interest Payment Date, Redemption Date or the Maturity Date falls on a day that is not a Business Day, the required payment shall be made on the next Business Day as if it were made on the date such payment was due and no interest shall accrue on the amount so payable for the period from and after such Interest Payment Date, Redemption Date or the Maturity Date, as the case may be, to such next Business Day. Payments of principal, premium, if any, and interest hereunder shall be made in such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts and shall be made immediately available to the Holder (as defined below) hereof.
This Note is one of the duly authorized series of Debt Securities of the Company, designated as the Company's "5.450% Notes due 2034" (the "Notes"), initially limited to an aggregate principal amount of $750,000,000, all issued or to be issued under and pursuant to an Indenture dated as of June 27, 1 995 (the "Original Indenture"), as supplemented by the Twenty-Second Supplemental Indenture dated as of August 20, 2024 (the "Twenty-Second Supplemental Indenture" and, together with the Original Indenture, the "Indenture"), duly executed and delivered by the Company and Cox Enterprises, Inc., a Delaware corporation, as guarantor (the "Guarantor"), to The Bank of New York Mellon Trust Company, N.A, as trustee (hereinafter referred to as the "Trustee"), to which Indenture and all indentures supplemental thereto reference is hereby made for a description of the rights, limitation of rights, obligations, duties and immunities thereunder of the Trustee, the Company, the Guarantor and the Holders (the words "Holders" or "Holder" meaning the registered holders or registered holder of the Notes).
A-2(i)-3
The Notes and the obligations of the Company thereunder and under the Indenture shall be fully and unconditionally guaranteed on a senior unsecured basis by the Guarantor (the "Guarantee"). The Guarantee will be automatically and unconditionally released and discharged upon the occurrence of certain events without any action required on the part of the Trustee or any Holder in accordance with the terms of the Twenty-Second Supplemental Indenture.
Prior to the Par Call Date, this Note will be redeemable at the option of the Company, in whole or in part, at any time and from time to time, at a Redemption Price (expressed as a percentage of principal amount and rounded to three decimal places) equal to the greater of (i) (a) the sum of the present values of the remaining scheduled payments of principal and interest thereon discounted to the Redemption Date (assuming this Note matured on the Par Call Date) on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as defined below) plus 25 basis points, less (b) interest accrued to the Redemption Date, and (ii) 100% of the principal amount of this Note to be redeemed, plus, in either case, accrued and unpaid interest thereon to the Redemption Date. On or after the Par Call Date, this Note will be redeemable at the option of the Company, in whole or in part, at any time and from time to time, at a Redemption Price equal to 100% of the principal amount of this Note being redeemed, plus accrued and unpaid interest thereon to the Redemption Date.
"Par Call Date" means June 1, 2034.
"Treasury Rate" means, with respect to any Redemption Date, the yield determined by the Company in accordance with the following paragraphs.
The Treasury Rate shall be determined by the Company after 4: 15 p.m., New York City time (or after such time as yields on U.S. government securities are posted daily by the Board of Governors of the Federal Reserve System), on the third business day preceding the Redemption Date based upon the yield or yields for the most recent day that appear after such time on such day in the most recent statistical release published by the Board of Governors of the Federal Reserve System designated as "Selected Interest Rates (Daily) - H. 15" (or any successor designation or publication) (H. 15) under the caption "U.S. government securities- Treasury constant maturities-Nominal" (or any successor caption or heading). In determining the Treasury Rate, the Company shall select, as applicable: (i) the yield for the Treasury constant maturity on H. 15 exactly equal to the period from the Redemption Date to the Par Call Date (the Remaining Life); or (ii) if there is no such Treasury constant maturity on H. 15 exactly equal to the Remaining Life, the two yields - one yield corresponding to the Treasury constant maturity on H. 15 immediately shorter than and one yield corresponding to the Treasury constant maturity on H. 15 immediately longer than the Remaining Life - and shall interpolate to the Par Call Date on a straight-line basis (using the actual number of days) using such yields and rounding the result to three decimal places; or (iii) if there is no such Treasury constant maturity on H. 15 shorter than or longer than the Remaining Life, the yield for the single Treasury constant maturity on H. 15 closest to the Remaining Life. For purposes of this paragraph, the applicable Treasury constant maturity or maturities on H. 15 shall be deemed to have a maturity date equal to the relevant number of months or years, as applicable, of such Treasury constant maturity from the Redemption Date.
A-2(i)-4
If on the third business day preceding the Redemption Date H. 15 or any successor designation or publication is no longer published, the Company shall calculate the Treasury Rate based on the rate per annum equal to the semi-annual equivalent yield to maturity at 11:00 a.m., New York City time, on the second business day preceding such Redemption Date of the United States Treasury security maturing on, or with a maturity that is closest to, the Par Call Date, as applicable. If there is no United States Treasury security maturing on the Par Call Date but there are two or more United States Treasury securities with a maturity date equally distant from the Par Call Date, one with a maturity date preceding the Par Call Date and one with a maturity date following the Par Call Date, the Company shall select the United States Treasury security with a maturity date preceding the Par Call Date. If there are two or more United States Treasury securities maturing on the Par Call Date or two or more United States Treasury securities meeting the criteria of the preceding sentence, the Company shall select from among these two or more United States Treasury securities the United States Treasury security that is trading closest to par based upon the average of the bid and asked prices for such United States Treasury securities at 11:00 a.m., New York City time. In determining the Treasury Rate in accordance with the terms of this paragraph, the semi-annual yield to maturity of the applicable United States Treasury security shall be based upon the average of the bid and asked prices (expressed as a percentage of principal amount) at 11:00 a.m., New York City time, of such United States Treasury security, and rounded to three decimal places.
The Company 's actions and determinations in determining the Redemption Price shall be conclusive and binding for all purposes, absent manifest error.
Notice of any redemption will be mailed or electronically delivered (or otherwise transmitted in accordance with the depositary's procedures) at least 10 days but not more than 60 days before the Redemption Date to each holder of notes to be redeemed.
In the case of a partial redemption, selection of this Note for redemption will be made pro rata, by lot or by such other method as the Trustee in its sole discretion deems appropriate and fair. No Note of a principal amount of $2,000 or less will be redeemed in part. If any Note is to be redeemed in part only, the notice of redemption that relates to this Note will state the portion of the principal amount of this Note to be redeemed. A new note in a principal amount equal to the unredeemed portion of this Note will be issued in the name of the holder of this Note upon surrender for cancellation of this Note. For so long as this Note is held by DTC (or another depositary), the redemption of this Note shall be done in accordance with the policies and procedures of the depositary.
Unless the Company defaults in payment of the Redemption Price, on and after the Redemption Date, interest will cease to accrue on this Note or portions thereof called for redemption.
If money sufficient to pay the Redemption Price and accrued and unpaid interest on the principal amount of this Note to be redeemed on the Redemption Date is deposited with the Trustee or Paying Agent on or before the Redemption Date and certain other conditions specified in the Indenture are satisfied, then on or after such date, interest will cease to accrue on the principal amount of this Note called for redemption.
Any notice of redemption may, at the Company's discretion, be subject to the satisfaction of one or more conditions precedent, and if such notice of redemption is conditioned upon the occurrence of one or more conditions precedent, such notice shall state the nature of such conditions precedent.
A-2(i)-5
Except as provided above, this Note is not redeemable by the Company prior to maturity.
This Note is not subject to any sinking fund.
Upon the occurrence of a Change of Control Repurchase Event, unless the Company has redeemed this Note or the Company has defeased this Security or satisfied and discharged this Note, the Holder of this Note shall have the right to require that the Company purchase all or a portion (such principal amount to be equal to $2,000 or integral multiples of $1,000 in excess thereof), of this Note at a purchase price in cash in an amount equal to 101% of the principal amount thereof, plus accrued but unpaid interest, if any, to, but not including, the date of purchase. Within 30 days following any Change of Control Repurchase Event, the Company shall deliver a notice to each Holder, in accordance with Section 401(b) of the Twenty-Second Supplemental Indenture, with a copy to the Trustee, which notice shall govern the terms of the Change of Control Offer. Notice of any redemption pursuant to the Change of Control Offer will be mailed or delivered electronically at least 15 days but not more than 60 days before the Redemption Date to the Holder hereof in accordance with the Twenty-Second Supplemental Indenture.
In case an Event of Default shall occur and be continuing, the principal hereof may be declared, and upon such declaration shall become, due and payable, in the manner, with the effect and subject to the conditions provided in the Indenture.
Subject to certain exceptions set forth in the Indenture, (i) the Indenture may be amended with respect to the Notes with the consent of the Holders of at least a majority in principal amount outstanding of the Notes and (ii) any default or noncompliance with any provisions applicable to the Notes may be waived with the consent of the Holders of a majority in principal amount outstanding of the Notes. Subject to certain exceptions set forth in the Indenture, without the consent of any Holder, the Company and the Trustee may amend the Indenture or the Notes to, among other things, cure any ambiguity, defect or inconsistency, or to provide for the assumption by a successor person of the obligations of the Company under the Indenture, or to add additional covenants or surrender any right or power conferred on the Company, or to establish the form or terms of the Notes of any series, or to appoint a successor Trustee or provide for administration of the trust by more than one Trustee, or to add to, delete from or revise the conditions, limitations, and restrictions on the authorized amount, terms or purposes of issue, authentication and delivery of the Notes or to add any additional event of default, or to modify the provisions of the Indenture as shall be necessary to facilitate the defeasance and discharge of the Notes as shall not adversely affect any Holders, or to secure the Notes, or to make provisions with respect to exchange rights of Holders, or to make any change that does not adversely affect the rights of any Holder.
Subject to certain conditions, the Company at any time may terminate some or all of its obligations and the obligations of the Guarantor under the Notes and the Indenture if the Company deposits with the Trustee money or U.S. Government Obligations for the payment of principal, premium, if any, and interest on the Notes to the Maturity Date.
If money for the payment of principal or interest remains unclaimed for two years, the Trustee or Paying Agent shall pay the money back to the Company at its request unless an abandoned property law designates another Person. After any such payment, Holders entitled to the money must look only to the Company and not to the Trustee for payment.
A-2(i)-6
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and premium, if any, and interest on this Note at the place, at the respective times, at the rate, and in the coin or currency herein prescribed.
No director, officer, employee or stockholder, as such, of the Company or the Guarantor shall have any liability for any obligations of the Company under this Note or the Indenture or the obligations of the Guarantor under the Indenture, as applicable, or for any claim based on, in respect of or by reason of such obligations or their creation. Each Holder, by accepting this Note, waives and releases all such liability. The waiver and release are part of the consideration for the issue of this Note.
This Note and the Indenture shall be governed by and construed in accordance with the law of the State of New York applicable to agreements made or instruments entered into and, in each case, performed in said state.
Ownership of this Note shall be proved by the register for the Notes kept by the Registrar. The Company, the Trustee and any agent of the Company may treat the Person in whose name a Note is registered as the absolute owner thereof for all purposes.
Pursuant to a recommendation promulgated by the Committee on Uniform Securities Identification Procedures ("CUSIP"), the Company has caused a CUSIP number to be printed on this Note and has directed the Trustee to use the CUSIP number as a convenience to Holders. No representation is made as to the correctness of such numbers and reliance may be placed only on the other identification numbers printed on this Note.
Terms used herein without definition that are defined in the Indenture shall have the meanings assigned to them in the Indenture.
Unless the Certificate of Authentication hereon has been executed by the Trustee under the Indenture referred to herein by the manual or electronic signature of one of its authorized officers, or on behalf of the Trustee by the manual or electronic signature of an authorized officer of the Trustee's authenticating agent, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
[Remainder of Page Intentionally Left Blank]
A-2(i)-7
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
Date: August 20, 2024
| COX COMMUNICATIONS, INC. | ||
| By: | ||
| Name: Perley McBride | ||
| Title: Executive Vice President and Chief Financial Officer | ||
| By: | ||
| Name: Charles L. Odom | ||
| Title: Vice President and Treasurer |
[Signature Page to Global Note]
CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated therein referred to in the within-mentioned Indenture.
| THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A. | ||
| as Trustee | ||
| By: | ||
| Authorized Signatory | ||
| Dated: | ||
[Signature Page to Global Note]
ASSIGNMENT FORM
| FOR VALUE RECEIVED, the undersigned hereby sell(s) assign(s) and transfer(s) unto | |
| Please insert social security number 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 attorney to transfer said Note of Cox Communications, Inc. on the books of Cox Communications, Inc. 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 this Note in every particular without alteration or enlargement or any change whatsoever. The Signature must be guaranteed by an “eligible guarantor institution meeting the requirements of the Registrar, which requirements include memberships or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934.
EXHIBIT A-2(ii)
[FORM OF FACE OF SECURITY]
[TRANSFER RESTRICTION LEGEND]
[THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS A NON-U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH THE LAWS APPLICABLE TO SUCH PURCHASER IN THE JURISDICTION IN WHICH SUCH PURCHASE IS MADE AND (2) AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) THAT IS 40 DAYS AFTER THE LATEST OF THE ISSUE DATE HEREOF, THE ORIGINAL ISSUE DATE OF ANY ADDITIONAL NOTES (AS DEFINED IN THE INDENTURE GOVERNING THIS SECURITY) AND THE DATE ON WHICH THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) WAS FIRST OFFERED TO PERSONS OTHER THAN DISTRIBUTORS (AS DEFINED IN RULE 902 OF REGULATION S) IN RELIANCE ON REGULATIONS, ONLY (A) TO THE COMPANY, THE GUARANTOR OR ANY SUBSIDIARY THEREOF, (B) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH THE LAWS APPLICABLE TO IT IN THE JURISDICTION IN WHICH SUCH PURCHASE IS MADE, (D) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY’S AND THE TRUSTEE’S, OR REGISTRAR’S, AS APPLICABLE, RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (C) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE FOREGOING CASES, A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE OR REGISTRAR. THIS LEGEND WILL BE REMOVED UPON THE WRITTEN REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE. BY ITS ACQUISITION HEREOF, THE HOLDER HEREOF REPRESENTS THAT IT IS NOT A U.S. PERSON NOR IS IT PURCHASING FOR THE ACCOUNT OF A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATIONS UNDER THE SECURITIES ACT.
A-2(ii)-1
THIS GLOBAL NOTE IS A TEMPORARY GLOBAL NOTE FOR PURPOSES OF REGULATIONS UNDER THE SECURITIES ACT. NEITHER THIS TEMPORARY GLOBAL NOTE NOR ANY INTEREST HEREIN MAY BE OFFERED, SOLD OR DELIVERED, EXCEPT AS PERMITTED UNDER THE INDENTURE REFERRED TO BELOW.]
[GLOBAL NOTES LEGEND]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON 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.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS, IN WHOLE BUT NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN ARTICLE TWO OF THE TWENTY-SECOND SUPPLEMENTAL INDENTURE REFERRED TO ON THE REVERSE HEREOF.]
A-2(ii)-2
| No. R- | PRINCIPAL AMOUNT | |
| CUSIP No. U22018 BG6 | $ |
COX COMMUNICATIONS, INC.
5.950% Notes due 2054
COX COMMUNICATIONS, INC., a Delaware corporation (hereinafter called the "Company," which term includes any successor corporation under the Indenture referred to below), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of [ ] ($ ) on September 1, 2054 (the "Maturity Date"), unless previously redeemed, and to pay interest thereon from August 20, 2024 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, payable semiannually on March 1 and September 1 of each year (each, an "Interest Payment Date"), commencing March 1, 2025 at the rate of 5.950% per annum, until the principal hereof is paid or duly made available for payment. Interest shall be computed on the basis of a 360-day year of twelve 30-day months. The interest so payable and punctually paid or duly provided for on any Interest Payment Date will, as provided in the Indenture, be paid to the Person in whose name this Note (or one or more predecessor securities) is registered at the close of business on the regular record date for such interest, which shall be February 15 or August 15 (whether or not a Business Day), as the case may be, immediately preceding such Interest Payment Date. Any such interest which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date shall forthwith cease to be payable to the registered Holder hereof on the relevant regular record date by virtue of having been such Holder, and may be paid to the Person in whose name this Note (or one or more predecessor securities) is registered at the close of business on a subsequent special record date (which shall be not more than 15 days and not less than 10 days before the payment date) for the payment of such defaulted interest to be fixed by the Trustee, notice whereof shall be given to the Holders of Notes of this series not less than 10 days prior to such special record date, or may be paid at any time in any other lawful manner, all as more fully provided in such Indenture. If any Interest Payment Date, Redemption Date or the Maturity Date falls on a day that is not a Business Day, the required payment shall be made on the next Business Day as if it were made on the date such payment was due and no interest shall accrue on the amount so payable for the period from and after such Interest Payment Date, Redemption Date or the Maturity Date, as the case may be, to such next Business Day. Payments of principal, premium, if any, and interest hereunder shall be made in such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts and shall be made immediately available to the Holder (as defined below) hereof.
This Note is one of the duly authorized series of Debt Securities of the Company, designated as the Company's "5.950% Notes due 2054" (the "Notes"), initially limited to an aggregate principal amount of $750,000,000, all issued or to be issued under and pursuant to an Indenture dated as of June 27, 1995 (the "Original Indenture"), as supplemented by the Twenty-Second Supplemental Indenture dated as of August 20, 2024 (the "Twenty-Second Supplemental Indenture" and, together with the Original Indenture, the "Indenture"), duly executed and delivered by the Company and Cox Enterprises, Inc., a Delaware corporation, as guarantor (the "Guarantor"), to The Bank of New York Mellon Trust Company, N.A, as trustee (hereinafter referred to as the "Trustee"), to which Indenture and all indentures supplemental thereto reference is hereby made for a description of the rights, limitation of rights, obligations, duties and immunities thereunder of the Trustee, the Company, the Guarantor and the Holders (the words "Holders" or "Holder" meaning the registered holders or registered holder of the Notes).
A-2(ii)-3
The Notes and the obligations of the Company thereunder and under the Indenture shall be fully and unconditionally guaranteed on a senior unsecured basis by the Guarantor (the "Guarantee"). The Guarantee will be automatically and unconditionally released and discharged upon the occurrence of certain events without any action required on the part of the Trustee or any Holder in accordance with the terms of the Twenty-Second Supplemental Indenture.
Prior to the Par Call Date, this Note will be redeemable at the option of the Company, in whole or in part, at any time and from time to time, at a Redemption Price (expressed as a percentage of principal amount and rounded to three decimal places) equal to the greater of (i)(a) the sum of the present values of the remaining scheduled payments of principal and interest thereon discounted to the Redemption Date (assuming this Note matured on the Par Call Date) on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as defined below) plus 30 basis points, less (b) interest accrued to the Redemption Date, and (ii) 100% of the principal amount of this Note to be redeemed, plus, in either case, accrued and unpaid interest thereon to the Redemption Date. On or after the Par Call Date, this Note will be redeemable at the option of the Company, in whole or in part, at any time and from time to time, at a Redemption Price equal to 100% of the principal amount of this Note being redeemed, plus accrued and unpaid interest thereon to the Redemption Date.
"Par Call Date" means March 1, 2054.
"Treasury Rate" means, with respect to any Redemption Date, the yield determined by the Company in accordance with the following paragraphs.
The Treasury Rate shall be determined by the Company after 4: 15 p.m., New York City time (or after such time as yields on U.S. government securities are posted daily by the Board of Governors of the Federal Reserve System), on the third business day preceding the Redemption Date based upon the yield or yields for the most recent day that appear after such time on such day in the most recent statistical release published by the Board of Governors of the Federal Reserve System designated as "Selected Interest Rates (Daily) - H. 15" (or any successor designation or publication) (H. 15) under the caption "U.S. government securities- Treasury constant maturities-Nominal" (or any successor caption or heading). In determining the Treasury Rate, the Company shall select, as applicable: (i) the yield for the Treasury constant maturity on H. 15 exactly equal to the period from the Redemption Date to the Par Call Date (the Remaining Life); or (ii) if there is no such Treasury constant maturity on H. 15 exactly equal to the Remaining Life, the two yields - one yield corresponding to the Treasury constant maturity on H. 15 immediately shorter than and one yield corresponding to the Treasury constant maturity on H. 15 immediately longer than the Remaining Life - and shall interpolate to the Par Call Date on a straight-line basis (using the actual number of days) using such yields and rounding the result to three decimal places; or (iii) if there is no such Treasury constant maturity on H. 15 shorter than or longer than the Remaining Life, the yield for the single Treasury constant maturity on H. 15 closest to the Remaining Life. For purposes of this paragraph, the applicable Treasury constant maturity or maturities on H. 15 shall be deemed to have a maturity date equal to the relevant number of months or years, as applicable, of such Treasury constant maturity from the Redemption Date.
A-2(ii)-4
If on the third business day preceding the Redemption Date H. 15 or any successor designation or publication is no longer published, the Company shall calculate the Treasury Rate based on the rate per annum equal to the semi-annual equivalent yield to maturity at 11:00 a.m., New York City time, on the second business day preceding such Redemption Date of the United States Treasury security maturing on, or with a maturity that is closest to, the Par Call Date, as applicable. If there is no United States Treasury security maturing on the Par Call Date but there are two or more United States Treasury securities with a maturity date equally distant from the Par Call Date, one with a maturity date preceding the Par Call Date and one with a maturity date following the Par Call Date, the Company shall select the United States Treasury security with a maturity date preceding the Par Call Date. If there are two or more United States Treasury securities maturing on the Par Call Date or two or more United States Treasury securities meeting the criteria of the preceding sentence, the Company shall select from among these two or more United States Treasury securities the United States Treasury security that is trading closest to par based upon the average of the bid and asked prices for such United States Treasury securities at 11:00 a.m., New York City time. In determining the Treasury Rate in accordance with the terms of this paragraph, the semi-annual yield to maturity of the applicable United States Treasury security shall be based upon the average of the bid and asked prices (expressed as a percentage of principal amount) at 11:00 a.m., New York City time, of such United States Treasury security, and rounded to three decimal places.
The Company 's actions and determinations in determining the Redemption Price shall be conclusive and binding for all purposes, absent manifest error.
Notice of any redemption will be mailed or electronically delivered (or otherwise transmitted in accordance with the depositary's procedures) at least 10 days but not more than 60 days before the Redemption Date to each holder of notes to be redeemed.
In the case of a partial redemption, selection of this Note for redemption will be made pro rata, by lot or by such other method as the Trustee in its sole discretion deems appropriate and fair. No Note of a principal amount of $2,000 or less will be redeemed in part. If any Note is to be redeemed in part only, the notice of redemption that relates to this Note will state the portion of the principal amount of this Note to be redeemed. A new note in a principal amount equal to the unredeemed portion of this Note will be issued in the name of the holder of this Note upon surrender for cancellation of this Note. For so long as this Note is held by DTC (or another depositary), the redemption of this Note shall be done in accordance with the policies and procedures of the depositary.
Unless the Company defaults in payment of the Redemption Price, on and after the Redemption Date, interest will cease to accrue on this Note or portions thereof called for redemption.
If money sufficient to pay the Redemption Price and accrued and unpaid interest on the principal amount of this Note to be redeemed on the Redemption Date is deposited with the Trustee or Paying Agent on or before the Redemption Date and certain other conditions specified in the Indenture are satisfied, then on or after such date, interest will cease to accrue on the principal amount of this Note called for redemption.
Any notice of redemption may, at the Company's discretion, be subject to the satisfaction of one or more conditions precedent, and if such notice of redemption is conditioned upon the occurrence of one or more conditions precedent, such notice shall state the nature of such conditions precedent.
A-2(ii)-5
Except as provided above, this Note is not redeemable by the Company prior t0 maturity.
This Note is not subject to any sinking fund.
Upon the occurrence of a Change of Control Repurchase Event, unless the Company has redeemed this Note or the Company has defeased this Security or satisfied and discharged this Note, the Holder of this Note shall have the right to require that the Company purchase all or a portion (such principal amount to be equal to $2,000 or integral multiples of $1,000 in excess thereof), of this Note at a purchase price in cash in an amount equal to 101% of the principal amount thereof, plus accrued but unpaid interest, if any, to, but not including, the date of purchase. Within 30 days following any Change of Control Repurchase Event, the Company shall deliver a notice to each Holder, in accordance with Section 401(b) of the Twenty-Second Supplemental Indenture, with a copy to the Trustee, which notice shall govern the terms of the Change of Control Offer. Notice of any redemption pursuant to the Change of Control Offer will be mailed or delivered electronically at least 15 days but not more than 60 days before the Redemption Date to the Holder hereof in accordance with the Twenty-Second Supplemental Indenture.
In case an Event of Default shall occur and be continuing, the principal hereof may be declared, and upon such declaration shall become, due and payable, in the manner, with the effect and subject to the conditions provided in the Indenture.
Subject to certain exceptions set forth in the Indenture, (i) the Indenture may be amended with respect to the Notes with the consent of the Holders of at least a majority in principal amount outstanding of the Notes and (ii) any default or noncompliance with any provisions applicable to the Notes may be waived with the consent of the Holders of a majority in principal amount outstanding of the Notes. Subject to certain exceptions set forth in the Indenture, without the consent of any Holder, the Company and the Trustee may amend the Indenture or the Notes to, among other things, cure any ambiguity, defect or inconsistency, or to provide for the assumption by a successor person of the obligations of the Company under the Indenture, or to add additional covenants or surrender any right or power conferred on the Company, or to establish the form or terms of the Notes of any series, or to appoint a successor Trustee or provide for administration of the trust by more than one Trustee, or to add to, delete from or revise the conditions, limitations, and restrictions on the authorized amount, terms or purposes of issue, authentication and delivery of the Notes or to add any additional event of default, or to modify the provisions of the Indenture as shall be necessary to facilitate the defeasance and discharge of the Notes as shall not adversely affect any Holders, or to secure the Notes, or to make provisions with respect to exchange rights of Holders, or to make any change that does not adversely affect the rights of any Holder.
Subject to certain conditions, the Company at any time may terminate some or all of its obligations and the obligations of the Guarantor under the Notes and the Indenture if the Company deposits with the Trustee money or U.S. Government Obligations for the payment of principal, premium, if any, and interest on the Notes to the Maturity Date.
If money for the payment of principal or interest remains unclaimed for two years, the Trustee or Paying Agent shall pay the money back to the Company at its request unless an abandoned property law designates another Person. After any such payment, Holders entitled to the money must look only to the Company and not to the Trustee for payment.
A-2(ii)-6
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and premium, if any, and interest on this Note at the place, at the respective times, at the rate, and in the coin or currency herein prescribed.
No director, officer, employee or stockholder, as such, of the Company or the Guarantor shall have any liability for any obligations of the Company under this Note or the Indenture or the obligations of the Guarantor under the Indenture, as applicable, or for any claim based on, in respect of or by reason of such obligations or their creation. Each Holder, by accepting this Note, waives and releases all such liability. The waiver and release are part of the consideration for the issue of this Note.
This Note and the Indenture shall be governed by and construed in accordance with the law of the State of New York applicable to agreements made or instruments entered into and, in each case, performed in said state.
Ownership of this Note shall be proved by the register for the Notes kept by the Registrar. The Company, the Trustee and any agent of the Company may treat the Person in whose name a Note is registered as the absolute owner thereof for all purposes.
Pursuant to a recommendation promulgated by the Committee on Uniform Securities Identification Procedures ("CUSIP"), the Company has caused a CUSIP number to be printed on this Note and has directed the Trustee to use the CUSIP number as a convenience to Holders. No representation is made as to the correctness of such numbers and reliance may be placed only on the other identification numbers printed on this Note.
Terms used herein without definition that are defined in the Indenture shall have the meanings assigned to them in the Indenture.
Unless the Certificate of Authentication hereon has been executed by the Trustee under the Indenture referred to herein by the manual or electronic signature of one of its authorized officers, or on behalf of the Trustee by the manual or electronic signature of an authorized officer of the Trustee's authenticating agent, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
[Remainder of Page Intentionally Left Blank]
A-2(ii)-7
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
Date: August 20, 2024
| COX COMMUNICATIONS, INC. | ||
| By: | ||
| Name: Perley McBride | ||
| Title: Executive Vice President and Chief Financial Officer | ||
| By: | ||
| Name: Charles L. Odom | ||
| Title: Vice President and Treasurer |
[Signature Page to Global Note]
CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated therein referred to in the within-mentioned Indenture.
| THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A. | ||
| as Trustee | ||
| By: | ||
| Authorized Signatory | ||
| Dated: | ||
[Signature Page to Global Note]
ASSIGNMENT FORM
| FOR VALUE RECEIVED, the undersigned hereby sell(s) assign(s) and transfer(s) unto | |
| Please insert social security number 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 attorney to transfer said Note of Cox Communications, Inc. on the books of Cox Communications, Inc. 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 this Note in every particular without alteration or enlargement or any change whatsoever. The Signature must be guaranteed by an “eligible guarantor institution meeting the requirements of the Registrar, which requirements include memberships or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934.
EXHIBIT B-1
Transfer Certificate
In connection with a transfer of any of the principal amount of the $__________principal amount of the _____% Notes due 20___ (the ''Notes") of Cox Communications, Inc. (the "Company") within the period prior to the expiration of the holding period applicable to the sales thereof under Rule 144 under the Securities Act of 1933, as amended (the "Securities Act") (or any successor provision), the undersigned registered owner of this Note hereby certifies with respect to $ principal amount of the above-captioned securities presented or surrendered on the date hereof (the "Surrendered Notes") for registration of transfer, or for exchange where the securities deliverable upon such exchange are to be registered in a name other than that of the undersigned registered owner (each such transaction being a "transfer"), that such transfer complies with the restrictive legend set forth on the face of the Surrendered Notes for the reason checked below:
| ¨ | The transfer of the Surrendered Notes is made to the Company, Cox Enterprises, Inc. or any Subsidiary thereof; |
| ¨ | The transfer of the Surrendered Notes complies with Rule 144A under the Securities Act; |
| ¨ | The transfer of the Surrendered Notes is pursuant to a registration statement which has been declared effective under the Securities Act; |
| ¨ | The transfer of the Surrendered Notes is pursuant to an offer and sale to a non-U.S. person that occurs outside the United States within the meaning of Regulation S under the Securities Act and in accordance with the laws applicable to it in the jurisdiction in which such purchase is made; |
| ¨ | The transfer of the Surrendered Notes is pursuant to another available exemption from the registration requirements of the Securities Act. |
and unless the box below is checked, the undersigned confirms that, to the undersigned's knowledge, such Notes are not being transferred to an "affiliate" of the Company as defined in Rule 144 under the Securities Act (an "Affiliate").
| ¨ | The transferee is an Affiliate of the Company. |
| DATE: | |||
| Signature(s) |
(If the
registered owner is a corporation, partnership
or fiduciary, the title of the Person signing on behalf
of such registered owner must
be stated.)
B-1-1
EXHIBIT B-2
Form of Letter to be Delivered by Accredited Investors
Cox Communications, Inc.
6205-B Peachtree Dunwoody Road, NE
Atlanta, Georgia 30328
Attention: Treasurer
The Bank of New York Mellon Trust Company, N.A., as Registrar
500 Ross Street, 12th Floor
Pittsburgh, PA 15262
Attention: Corporate Trust Office
Dear Sirs: ♦
We are delivering this letter in connection with the proposed transfer of $__________ principal amount of the _% Notes due 20_ (the "Notes") of Cox Communications, Inc. (the "Company").
We hereby confirm that:
(i) we are an "accredited investor" within the meaning of Rule 50l (a)( l ), (2), (3) or (7) of Regulation D under the Securities Act of 1933, as amended (the "Securities Act"), or an entity in which all of the equity owners are accredited investors within the meaning of Rule 50 l (a)( l), (2), (3) or (7) of Regulation D under the Securities Act (an "Institutional Accredited Investor");
(ii) (A) the purchase of Notes by us is for our own account or for the account of one or more other Institutional Accredited Investors or as fiduciary for the account of one or more trusts, each of which is an "accredited investor" within the meaning of Rule 50l (a)(7) under the Securities Act and for each of which we exercise sole investment discretion or (B) we are a "bank," within the meaning of Section 3(a)(2) of the Securities Act, or a "savings and loan association" or other institution described in Section 3(a)(5)(A) of the Securities Act that is acquiring Notes as fiduciary for the account of one or more institutions for which we exercise sole investment discretion;
(iii) we will acquire Notes having a minimum principal amount of not less than $ 100,000 for our own account or for any separate account for which we are acting;
(iv) we have such knowledge and experience in financial and business matters that we are capable of evaluating the merits and risks of purchasing Notes; and
(v) we are not acquiring Notes with a view to distribution thereof or with any present intention of offering or selling Notes, except as permitted below; provided that the disposition of our property and property of any accounts for which we are acting as fiduciary shall remain at all times within our control.
B-2-1
We understand that the Notes were originally offered and sold in a transaction not involving any public offering within the United States within the meaning of the Securities Act and that the Notes have not been registered under the Securities Act, and we agree, on our own behalf and on behalf of each account for which we acquire any Notes, that we will offer, sell or otherwise transfer such Notes, or any beneficial interest therein, prior to the date (the "Resale Restriction Termination Date") that is (a) one year after the latest of (x) the original issue date of the Notes, (y) the original issue date of any Additional Notes (as defined in the indenture governing the Notes) and (z) the last date on which the Issuer or any of its Affiliates were the owner of such Notes (or any predecessor thereof), and (b) such later date, if any, as may be required by applicable laws only:
(1) to the Company or any Subsidiary thereof, or
(2) for as long as the Notes are eligible for resale pursuant to Rule 144A, to a person we reasonably believe is a "qualified institutional buyer" (as defined in Rule 144A under the Securities Act) that purchases for its own account or for the account of a qualified institutional buyer to which notice is given that the transfer is being made in reliance on Rule 144A, or
(3) pursuant to offers and sales to non-U.S. persons that occur outside the United States within the meaning of Regulation S under the Securities Act and in accordance with the laws applicable to us in the jurisdiction in which such purchase is made, or
(4) pursuant to a registration statement which has been declared effective under the Securities Act, or
(5) pursuant to another available exemption from the registration requirements of the Securities Act.
We acknowledge that the Company, others and you will rely upon our confirmations, acknowledgments and agreements set forth herein, and we agree to notify you promptly in writing if any of our representations or warranties herein ceases to be accurate and complete.
THIS LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK.
| (Name of Purchaser) | ||
| By: | ||
| Name: | ||
| Title: | ||
| Address: | ||
B-2-2