EXHIBIT 4.5
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇) TO THE COMPANY
(AS DEFINED BELOW) OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH
OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
REGISTERED PRINCIPAL AMOUNT
No. FLR $
CUSIP No.
TCI COMMUNICATIONS, INC.
MEDIUM-TERM NOTE, SERIES C
(FLOATING RATE)
INTEREST RATE BASIS OR BASIS: ORIGINAL ISSUE DATE: STATED MATURITY DATE:
INDEX MATURITY: INITIAL INTEREST RATE: INTEREST PAYMENT PERIOD:
SPREAD: INITIAL INTEREST RESET INTEREST PAYMENT DATES:
DATE:
SPREAD MULTIPLIER: INTEREST RESET PERIOD: INTEREST RESET DATES:
MAXIMUM INTEREST RATE: MINIMUM INTEREST RATE: INITIAL REDEMPTION DATE:
INITIAL REDEMPTION ANNUAL REDEMPTION OPTIONAL REPAYMENT
PERCENTAGE: PERCENTAGE REDUCTION: DATE(S):
CALCULATION AGENT EXTENSION PERIOD(S):
(if other than FINAL MATURITY DATE:
The Bank of New York): OTHER TERMS:
TCI COMMUNICATIONS, INC., a Delaware corporation (the "Company", which term
includes any successor corporation permitted by the terms hereof), for value
received, hereby promises to pay to , or registered assigns, the principal
sum of DOLLARS on the Stated Maturity Date specified above (except to the
extent redeemed or repaid prior to the Stated Maturity Date and except to the
extent extended as provided herein), and to pay interest thereon, at a rate
per annum equal to the Initial Interest Rate specified above from the Original
Issue Date specified above until the Initial Interest Reset Date specified
above and thereafter at the rate or rates per annum determined in accordance
with the provisions hereof, including the provisions under the heading
"Determination of Commercial Paper Rate," "Determination of CD Rate,"
"Determination of Federal Funds Rate," "Determination of LIBOR,"
"Determination of Prime Rate," or "Determination of Treasury Rate", as
applicable depending upon whether the Interest Rate Basis specified above is
Commercial Paper Rate, CD Rate, Federal Funds Rate, LIBOR, Prime Rate,
Treasury Rate, or the lowest of any two or more of such Interest Rate Bases,
as indicated above, until the principal hereof is paid or duly made available
for payment.
The Company shall pay interest monthly, quarterly, semiannually or annually
as specified above under "Interest Payment Period," on each Interest Payment
Date specified above, commencing with the first Interest Payment Date
specified above next succeeding the Original Issue Date specified above, and
on the Stated Maturity Date, or any Redemption Date, Purchase Date or Optional
Repayment Date (in each case as defined
1
herein) on which this Note is redeemed, repurchased or repaid prior to the
Stated Maturity Date in whole or in part, (each such Stated Maturity Date,
Redemption Date, Purchase Date and Optional Repayment Date are referred to
hereinafter as a "Maturity Date" with respect to principal, premium, if any,
and interest payable on such date); provided, however, unless otherwise
specified herein, if the Original Issue Date specified above is between a
Regular Record Date (as defined herein) and the next succeeding Interest
Payment Date or on an Interest Payment Date, interest payments hereon shall
commence on the Interest Payment Date following the next succeeding Regular
Record Date to the registered Holder of this Note on such next succeeding
Regular Record Date. If any Maturity Date falls on a day that is not a
Business Day (as defined herein), the related payment of principal, premium,
if any, and interest payable with respect to such Maturity Date shall be paid
on the next succeeding Business Day with the same force and effect as if made
on such Maturity Date, and no interest shall accrue on the amount so payable
for the period from and after such Maturity Date. If any day specified above
as an Interest Payment Date (and is not a Maturity Date) is not a Business
Day, then such Interest Payment Date shall be the next succeeding day that is
a Business Day, except that if the Interest Rate Basis or one of the Interest
Rate Bases specified above is LIBOR and such next succeeding Business Day
falls in the next succeeding calendar month, such Interest Payment Date shall
be the next preceding day that is a Business Day. Except as provided above,
interest payments shall be made on the Interest Payment Dates specified above.
Except as indicated above, each "Regular Record Date" shall be the date
fifteen (15) calendar days (whether or not a Business Day) prior to the
applicable Interest Payment Date. Interest on this Note shall accrue from the
most recent Interest Payment Date in respect of which interest has been paid
or duly provided for or, if no interest has been paid, from and including the
Original Issue Date specified above, at the rates determined from time to time
as specified herein, until the principal hereof has been paid or made
available for payment in full. The interest (except defaulted interest) so
payable or duly provided for on any Interest Payment Date shall be paid to the
person in whose name this Note (or one or more predecessor Notes) is
registered at the close of business on the Regular Record Date for such
Interest Payment Date; provided, however, that interest payable on any
Maturity Date shall be payable to the person to whom the principal hereof
shall be payable.
Payment of the principal of, premium, if any, and interest with respect to
this Note shall be made in such coin or currency of the United States of
America as at the time of payment is legal tender for the payment of public
and private debts to the Holder hereof upon presentation of this Note at the
office of the Paying Agent which is currently the Corporate Trust Department
of the Trustee (as defined herein), ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or at such other office or agency of the Company in The
City of New York as the Company shall designate by written notice to the
Holder hereof; provided, however, that payment of interest on any Interest
Payment Date (other than a Maturity Date) without presentation of this Note
(i) may be made on each Interest Payment Date by check mailed to the address
of the Holder hereof as of the close of business on the immediately preceding
Regular Record Date at such address as shall appear in the security register
or (ii) or upon receipt by the Paying Agent of appropriate payment
instructions in writing from the Holder hereof (provided such Holder is the
Holder of an aggregate principal amount of Notes, including this Note, of
$10,000,000 or more having the same Interest Payment Dates), not less than
sixteen (16) calendar days prior to such Interest Payment Date, shall be made
by the wire transfer of immediately available funds to such account at a bank
in The City of New York, New York (or other bank consented to by the Company
and the Paying Agent) as the Holder hereof shall have designated in such
instructions so long as such bank has appropriate facilities therefor. Payment
of the principal of, premium, if any, and interest with respect to this Note
will be made on a Maturity Date, upon presentation and surrender of this Note
to the Paying Agent as provided above, (a) in immediately available funds,
provided that this Note is so presented and surrendered in time for the Paying
Agent to make such payment in immediately available funds in accordance with
its normal procedures, or (b) by the wire transfer of immediately available
funds to such account at a bank in The City of New York, New York (or other
bank consented to by the Company and the Paying Agent) as the Holder hereof
shall have designated, provided that such bank has appropriate facilities
therefor and that wire transfer instructions in writing have been received by
the Paying Agent not less than sixteen (16) calendar days prior to such
Maturity Date. If required by applicable law or instructed by the Company or
any governmental agency that taxes or other governmental charges should be
withheld, the Paying Agent shall withhold any such taxes or other governmental
charges on any payments made in connection with this Note.
2
This Note is one of a duly authorized issue of securities of the Company
issued and to be issued under an Indenture dated as of , 199 (the
"Indenture"), between the Company, as issuer, and The Bank of New York, as
trustee (herein called the "Trustee", which term includes any successor
trustee under the Indenture) which securities may be issued in one or more
series (therein called the "Securities"). The terms of the Notes (as defined
below) include those stated in the Indenture and those made part of the
Indenture by the Trust Indenture Act of 1939, as amended (the "Act").
Reference is hereby made to the Indenture and all indentures supplemental
thereto and the Act for a statement of the respective rights, limitations of
rights, duties and immunities thereunder of the Company, the Trustee and the
Holders of the Securities, and of the terms upon which the Securities are, and
are to be, authenticated and delivered. All terms used and not defined in this
Note which are defined in the Indenture shall have the meanings assigned to
them in the Indenture. This Note is one of the series of Securities designated
Medium-Term Notes Due from Nine Months or more from Date of Issue (Securities
of such series being herein called the "Notes"). The Notes are general
unsecured obligations of the Company.
This Note shall not be subject to any sinking fund and, except as may be
provided in the next three paragraphs, shall not be redeemable or repayable
prior to the Stated Maturity Date. If an Event of Default with respect to the
Notes shall occur and be continuing, the principal amount of, and accrued
interest on, the Notes may be declared or may become due and payable in the
manner and with the effect provided in the Indenture.
If so provided above, this Note may be redeemed at the option of the Company
on any date on and after the Initial Redemption Date, if any, specified above.
If no Initial Redemption Date is set forth above, this Note may not be
redeemed at the option of the Company prior to its Stated Maturity Date. On
and after the Initial Redemption Date, if any, this Note may be redeemed at
any time in whole or from time to time in part in denominations of $1,000
principal amount hereof or any integral multiple of $1,000, (provided that any
remaining principal amount hereof shall be at least $1,000) at the option of
the Company at the applicable Redemption Price (as defined below), together
with accrued and unpaid interest on the principal amount to be redeemed at the
applicable rate to but excluding the date of redemption (each such date a
"Redemption Date"), on notice given by the Company or the Trustee to the
Holder hereof not more than 60 nor less than 30 days prior to the Redemption
Date. Whenever less than all the Notes at any time outstanding are to be
redeemed, the particular Notes to be so redeemed shall be selected by the
Company, provided that if less than all the Notes with identical terms at any
time outstanding are to be redeemed, the Notes to be so redeemed shall be
selected by the Trustee by lot or such other method as the Trustee considers
fair and appropriate. In the event of redemption of this Note in part only, a
new Note for the unredeemed portion hereof shall be issued in the name of the
Holder hereof upon the surrender hereof. The "Redemption Price" shall
initially be the Initial Redemption Percentage, if any, specified above, of
the principal amount of this Note to be redeemed and, if the Initial
Redemption Percentage is greater than 100%, shall decline at each anniversary
of the Initial Redemption Date, specified above, by the Annual Redemption
Percentage Reduction, if any, specified above, of the principal amount to be
redeemed until the Redemption Price is 100% of such principal amount.
If both (i) a Change of Control of the Company shall occur at any time after
the Original Issue Date and on or prior to the Stated Maturity Date (as the
same may be extended as described below) and (ii) on any date during the
period commencing 90 days before and ending 90 days after a public filing has
been made with the Securities and Exchange Commission (the "Commission") or
other general public disclosure has been made indicating the occurrence of
such Change of Control, the then current rating of the Notes by ▇▇▇▇ & ▇▇▇▇▇▇
Credit Rating Co. or its successor ("D&P") or by ▇▇▇▇▇'▇ Investors Service,
Inc. or its successor ("▇▇▇▇▇'▇") is downgraded to lower than BBB-, in the
case of D&P (or an equivalent successor rating or, if the rating of the
Securities by D&P is lower than BBB- (or an equivalent successor rating) at
the beginning of such 180-day period, the rating in effect at the beginning of
such period), or lower than Baa3, in the case of Moody's (or an equivalent
successor rating or, if the rating of the Securities by ▇▇▇▇▇'▇ is lower than
Baa3 (or an equivalent successor rating) at the beginning of such 180-day
period, the rating in effect at the beginning of such period) and, in the
event that such downgrading shall have occurred during the 90-day period prior
to such public disclosure, the rating assigned to the Notes by D&P or Moody's
(or an equivalent successor rating) as of the
3
close of business on the date of such public disclosure remains lower than
BBB- or lower than Baa3 (or such lower rating by D&P or Moody's in effect at
the beginning of such 180-day period, as the case may be), respectively (the
occurrence of the conditions specified in both (i) and (ii) above being a "Put
Event"), then the Holder hereof shall have the right, at such Holder's option
and subject to the conditions of Section 4.02 of the Indenture, to require the
Company to repurchase all or any portion of this Note at a purchase price
equal to 100% of the principal amount hereof, plus accrued and unpaid
interest, if any, to the Purchase Date, all as provided in, and subject to the
terms of, the Indenture. The Company will not be obligated, with respect to
the Notes, to purchase Notes or give notice to the Holders thereof with
respect to more than one Put Event.
This Note may be subject to repayment at the option of the Holder hereof on
each Optional Repayment Date, if any, indicated above. If no Optional
Repayment Date is set forth above, this Note may not be so repaid at the
option of the Holder hereof prior to its Stated Maturity Date. On any Optional
Repayment Date this Note shall be repayable in whole or in part in
denominations of $1,000 principal amount hereof or any integral multiple of
$1,000 (provided that any remaining principal amount hereof shall be at least
$1,000), at the option of the Holder hereof at a repayment price equal to 100%
of the principal amount to be repaid, together with accrued and unpaid
interest thereon at the applicable rate to but excluding the date of
repayment. For this Note to be repaid in whole or in part at the option of the
Holder hereof, either (i) this Note must be surrendered, not more than 60 nor
less than 30 days prior to an Optional Repayment Date (except as otherwise
provided in the following fourth succeeding paragraph), with the form entitled
"Option to Elect Repayment" below duly completed, at the office of the Paying
Agent (currently the Corporate Trust Department of the Trustee at ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ 10286), or at such other office or
agency of the Company in The City of New York, New York as the Company shall
designate by written notice to the Holder hereof or (ii) the Paying Agent must
receive at such office, within such period of time prior to an Optional
Repayment Date, a telegram, telex, facsimile transmission or letter from a
member of a national securities exchange or the National Association of
Securities Dealers, Inc. or a commercial bank or trust company in the United
States setting forth the name of the Holder of this Note, the principal amount
of this Note, the principal amount of this Note to be repaid, the certificate
number or a description of the tenor and terms hereof, a statement that the
option to elect repayment is being exercised thereby and a guarantee that this
Note, with the form entitled "Option to Elect Repayment" below duly completed,
will be surrendered to the Paying Agent not later than five Business Days
after the date of such telegram, telex, facsimile transmission or letter and
this Note, with such form duly completed, are received by the Paying Agent by
such fifth Business Day. Exercise of such repayment option by the Holder
hereof shall be irrevocable except as otherwise provided in the following
fourth succeeding paragraph. No transfer or exchange of this Note (or, in the
event that this Note is to be repaid in part, the portion of this Note to be
repaid) shall be permitted after exercise of a repayment option. All questions
as to the validity, eligibility (including time of receipt) and acceptance of
this Note for repayment will be determined by the Company, which determination
shall be final, binding and non-appealable.
This Note may be subject to an extension of its Stated Maturity Date at the
option of the Company for one or more whole year periods, if any, indicated
above (each an "Extension Period") up to but not beyond the date (the "Final
Maturity Date"), if any, indicated above. If this Note may be extended, the
basis or formula, if any, for setting the Spread and/or Spread Multiplier, if
any, for such Extension Period will be as indicated above.
The Company may exercise such option with respect to this Note by notifying
the Trustee of such exercise not more than 60 nor less than 45 days prior to
the Stated Maturity Date in effect prior to the exercise of such option (the
"Original Stated Maturity Date"). No later than 40 days prior to the Original
Stated Maturity Date, the Trustee will mail to the Holder hereof a notice (the
"Extension Notice") relating to such Extension Period, first class, postage
prepaid, setting forth (i) the election of the Company to extend the Stated
Maturity Date, (ii) the new Stated Maturity Date, (iii) any Spread and/or
Spread Multiplier applicable to the Extension Period, and (iv) the provisions,
if any, for redemption at the option of the Company during the Extension
Period, including the date or dates on which or the period or periods during
which and the price or prices at which such redemption may occur during the
Extension Period. Upon the mailing by the Trustee of an Extension Notice to
the Holder hereof, the Stated Maturity Date of this Note shall be extended
automatically as set forth in the Extension Notice,
4
and except as modified by the Extension Notice and as described in the next
paragraph, such Note will have the same terms as prior to the mailing of such
Extension Notice.
Notwithstanding the foregoing, not later than 20 days prior to the Original
Stated Maturity Date, the Company may, at its option, revoke the Spread and/or
Spread Multiplier in each case, if any, provided for in the Extension Notice
and establish a higher Spread and/or Spread Multiplier in each case, if any,
for the Extension Period by mailing or causing the Trustee to mail notice of
such higher Spread and/or Spread Multiplier by first class mail postage
prepaid to the Holder hereof. Such notice shall be irrevocable. All Notes with
identical terms with respect to which the Stated Maturity Date is extended
will bear such higher Spread and/or Spread Multiplier, as the case may be, for
the Extension Period.
If the Company elects to extend the Stated Maturity Date and if repayment at
the option of the Holder upon such extension is provided for above, the Holder
hereof will have the option to elect repayment of this Note by the Company on
the Original Stated Maturity Date at a price equal to the principal amount
hereof plus any accrued and unpaid interest to such date. In order for a Note
to be so repaid on the Original Stated Maturity Date, the Holder hereof must
follow the procedures set forth herein for optional repayment, except that the
period for delivery of this Note with the "Option to Elect Repayment" form to
the Trustee shall be at least 25 but not more than 35 days prior to the
Original Stated Maturity Date and except that a Holder who has tendered this
Note for repayment pursuant to an Extension Notice may, by written notice to
the Trustee, revoke any such tender for repayment until the close of business
on the tenth day prior to the Original Stated Maturity Date.
This Note shall bear interest at the rate per annum equal to the Initial
Interest Rate specified above from the Original Issue Date specified above
until the Initial Interest Reset Date specified above and thereafter, subject
to the limitations set forth herein, at the rate or rates per annum determined
by reference to the Interest Rate Basis shown above or, if two or more
Interest Rate Bases (other than the Treasury Rate) are shown above, then by
reference to one or more such Interest Rate Bases, in either case adjusted by
(i) adding or subtracting (as indicated above) the Spread, if any, or (ii)
multiplying by the Spread Multiplier, if any, as specified above. The Interest
Rate Basis or Bases shall be the rate determined in accordance with the
applicable provision below. Commencing with the Initial Interest Reset Date
specified above following the Original Issue Date specified above, the rate at
which interest on this Note is payable shall be reset daily, weekly, monthly,
quarterly, semi-annually or annually, as shown above under "Interest Reset
Period", as of each Interest Reset Date specified above. If any Interest Reset
Date would otherwise be a day that is not a Business Day (as defined below),
such Interest Reset Date shall be postponed to the next succeeding day that is
a Business Day, except that if an Interest Rate Basis specified above is LIBOR
and such next Business Day is in the next succeeding calendar month, such
Interest Reset Date shall be the next preceding Business Day.
Interest payable on this Note on any Interest Payment Date shall be equal to
the amount of interest accrued from and including the most recent date to
which interest has been paid or duly provided for (or from and including the
Original Issue Date specified above, if no interest has been paid), to but
excluding the Interest Payment Date for such payment; provided, however, that
if the Interest Reset Period with respect to this Note is daily or weekly,
unless specified herein, interest payable on any Interest Payment Date shall
include interest accrued from and including the Original Issue Date, if no
interest has been paid, or from but excluding the last date in respect of
which interest has been paid or duly provided for, as the case may be, to and
including the Regular Record Date next preceding such Interest Payment Date;
and provided further that the interest payments on a Maturity Date shall
include interest accrued to but excluding such Maturity Date. Accrued interest
hereon shall be an amount calculated by multiplying the principal amount
hereof by an accrued interest factor. Such accrued interest factor shall be
computed by adding the interest factors calculated for each day in the period
for which accrued interest is being calculated. The interest factor (expressed
as a decimal) for each such day shall be computed by dividing the interest
rate in effect for such day by 360 in the case of Notes having as their
Interest Rate Basis the Commercial Paper Rate, the CD Rate, the Federal Funds
Rate, LIBOR or the Prime Rate, or by the actual number of days in the year in
the case of Notes having as their Interest Rate Basis the Treasury Rate. The
interest factor for Notes for which the interest rate is calculated with
reference to two or more Interest
5
Rate Bases shall be calculated in each period in the same manner as if only
one of the applicable Interest Rate Bases applied.
The interest rate in effect on each day shall be (a) if such day is an
Interest Reset Date, the interest rate determined on the Interest
Determination Date (as defined below) pertaining to such Interest Reset Date
or (b) if such day is not an Interest Reset Date, the interest rate determined
on the Interest Determination Date pertaining to the next preceding Interest
Reset Date, provided that (i) the interest rate in effect for the period from
the Original Issue Date to the Initial Interest Reset Date shall be the
Initial Interest Rate specified above, and (ii) unless otherwise specified
herein, the interest rate in effect for the ten calendar days immediately
prior to a Maturity Date shall be the rate in effect on the tenth calendar day
preceding such Maturity Date.
The "Interest Determination Date" with respect to the Commercial Paper Rate,
the CD Rate, the Federal Funds Rate and the Prime Rate shall be the second
Business Day preceding each Interest Reset Date. The "Interest Determination
Date" with respect to LIBOR shall be the second London Business Day (as
defined below) preceding each Interest Reset Date. The "Interest Determination
Date" with respect to the Treasury Rate (unless otherwise specified above)
shall be the day of the week in which the related Interest Reset Date falls on
which Treasury bills (as defined below), of the Index Maturity specified
above, are auctioned. (Treasury Bills are normally sold at auction on Monday
of each week, unless that day is a legal holiday, in which case the auction is
normally held on the following Tuesday, except that such auction may be held
on the preceding Friday. If, as a result of a legal holiday, an auction is
held on the Friday of the week preceding the related Interest Reset Date, the
related Interest Determination Date shall be such preceding Friday. If an
auction date shall fall on any Interest Reset Date, then the Interest Reset
Date shall instead be the first Business Day following such auction date. If
the interest rate hereon is determined with reference to two or more Interest
Rate Bases, the Interest Determination Date pertaining to this Note shall be
the first Business Day which is at least two Business Days prior to the
related Interest Reset Date on which each Interest Rate Basis shall be
determinable. Each Interest Rate Basis shall be determined on such date, and
the applicable interest rate shall take effect on the related Interest Reset
Date.
Notwithstanding the foregoing, the interest rate on this Note (i) shall not
be greater than the Maximum Interest Rate, if any, or less than the Minimum
Interest Rate, if any, specified above, and (ii) shall in no event be greater
than the maximum rate permitted by New York law, as the case may be modified
by United States law of general application.
The "Calculation Date", if applicable, pertaining to any Interest
Determination Date will be the earlier of (i) tenth calendar day after such
Interest Determination Date or, if such day is not a Business Day, the next
succeeding Business Day or (ii) the Business Day immediately preceding the
applicable Interest Payment Date or Maturity Date, as the case may be.
All percentages resulting from any calculation on this Note shall be
rounded, if necessary, to the nearest one hundred-thousandth of a percentage
point, with five one-millionths of a percentage point rounded upward (e.g.,
9.876545% (or .09876545) would be rounded to 9.87655% (or .0987655)), and all
dollar amounts used in or resulting from such calculation shall be rounded to
the nearest cent (with one-half cent being rounded upward).
As used herein, "Business Day" means any day, other than a Saturday or
Sunday, that is not a day on which banking institutions are authorized or
required by law or regulation to be closed in The City of New York, New York
and, if an Interest Rate Basis for this Note, as indicated above, is LIBOR, is
also a London Business Day. "London Business Day" means any day on which
dealings in deposits in U.S. Dollars are transacted in the London interbank
market.
Determination of Commercial Paper Rate. If an Interest Rate Basis for this
Note is the Commercial Paper Rate, as indicated above, the Commercial Paper
Rate determined with respect to the applicable Interest Determination Date (a
"Commercial Paper Rate Interest Determination Date"), shall be the Money
Market Yield (as defined below) of the rate on such date for commercial paper
having the Index Maturity specified above as
6
published by the Board of Governors of the Federal Reserve System in
"Statistical Release H.15(519), Selected Interest Rates" or any successor
publication of the Board of Governors of the Federal Reserve ("H.15(519)"),
under the heading "Commercial Paper". In the event such rate is not so
published by 3:00 p.m., New York City time, on the Calculation Date pertaining
to such Commercial Paper Rate Interest Determination Date, then the Commercial
Paper Rate shall be the Money Market Yield of the rate on such Commercial
Paper Rate Interest Determination Date for commercial paper having the Index
Maturity shown above as published by the Federal Reserve Bank of New York in
its daily statistical release "Composite 3:30 p.m. Quotations for U.S.
Government Securities" or any successor publication of the Federal Reserve
Bank of New York ("Composite Quotations") under the heading "Commercial
Paper". If by 3:00 p.m., New York City time, on the related Calculation Date
such rate is not published in either H.15(519) or Composite Quotations, then
the Commercial Paper Rate for such Commercial Paper Rate Interest
Determination Date shall be calculated by a calculation agent which shall be
the Trustee or, if another calculation agent is named above, such calculation
agent (the "Calculation Agent") and shall be the Money Market Yield of the
arithmetic mean (rounded, if necessary, to the nearest one hundred-thousandth
of a percentage point) of the offered rates as of approximately 11:00 a.m.,
New York City time, on such Commercial Paper Rate Interest Determination Date
of three leading dealers of commercial paper (which, unless otherwise
specified above, may include an affiliate of the Calculation Agent or a
selling agent or an underwriter hereof) in The City of New York, New York
selected by the Calculation Agent for commercial paper having the Index
Maturity specified above placed for an industrial issuer whose bond rating is
"AA," or its equivalent, from a nationally recognized securities rating
agency; provided, however, that if the dealers selected as aforesaid by the
Calculation Agent are not quoting as mentioned in this sentence, the
Commercial Paper Rate determined with respect to such Commercial Paper Rate
Interest Determination Date shall be the Commercial Paper Rate determined with
respect to the immediately preceding Commercial Paper Rate Interest
Determination Date or, in the case of the first Commercial Paper Rate Interest
Determination Date, the Initial Interest Rate specified above.
"Money Market Yield" shall be a yield (expressed as a percentage rounded, if
necessary, to the nearest one hundred-thousandth of a percentage point)
calculated in accordance with the following formula:
Money Market Yield = D X 360 X 100
--------------
360 -- (D x M)
where "D" refers to the applicable per annum rate for commercial paper quoted
on a bank discount basis and expressed as a decimal and "M" refers to the
actual number of days in the interest period for which interest is being
calculated.
Determination of CD Rate. If an Interest Rate Basis for this Note is the CD
Rate, as indicated above, the CD Rate determined with respect to the
applicable Interest Determination Date (a "CD Rate Interest Determination
Date") shall be the rate on such date for negotiable certificates of deposit
having the Index Maturity specified above as published in H.15(519), under the
heading "CDs (Secondary Market)", or, if not so published by 3:00 p.m., New
York City time, on the Calculation Date pertaining to such CD Rate Interest
Determination Date, the rate on such CD Rate Interest Determination Date for
negotiable certificates of deposit of the Index Maturity specified above as
published in Composite Quotations under the heading "Certificates of Deposit".
If such rate is not published in either H.15(519) or Composite Quotations by
3:00 p.m., New York City time, on the Calculation Date, then the CD Rate for
such CD Rate Interest Determination Date shall be calculated by the
Calculation Agent and shall be the arithmetic mean (rounded, if necessary, to
the nearest one hundred-thousandth of a percentage point) of the secondary
market offered rates as of approximately 10:00 a.m., New York City time, on
such CD Rate Interest Determination Date of three leading nonbank dealers
(which, unless otherwise specified above, may include an affiliate of the
Calculation Agent or a selling agent or an underwriter hereof) in negotiable
U.S. Dollar certificates of deposit in The City of New York, New York selected
by the Calculation Agent for negotiable certificates of deposit of major
United States money center banks (in the market for negotiable U.S.
certificates of deposit) with a remaining maturity closest to the Index
Maturity designated above in the denomination of U.S. $5,000,000; provided,
however, that if the dealers selected as
7
aforesaid by the Calculation Agent are not quoting mentioned in this sentence,
the CD Rate determined with respect to such CD Rate Interest Determination
Date shall be the CD Rate determined with respect to the immediately preceding
CD Rate Interest Determination Date or, in the case of the first CD Rate
Interest Determination Date, the Initial Interest Rate specified above.
Determination of Federal Funds Rate. If an Interest Rate Basis for this Note
is the Federal Funds Rate, as indicated above, the Federal Funds Rate
determined with respect to the applicable Interest Determination Date (a
"Federal Funds Rate Interest Determination Date"), shall be the rate on that
date for Federal Funds as published in H.15(519) under the heading "Federal
Funds (Effective)" or, if not so published by 3:00 p.m., New York City time,
on the Calculation Date pertaining to such Federal Funds Rate Interest
Determination Date, the rate on such Federal Funds Rate Interest Determination
Date for Federal Funds as published in Composite Quotations under the heading
"Federal Funds/Effective Rate." If such rate is not published in either
H.15(519) or Composite Quotations by 3:00 p.m., New York City time, on the
related Calculation Date, the Federal Funds Rate for such Federal Funds Rate
Interest Determination Date shall be calculated by the Calculation Agent and
shall be the arithmetic mean (rounded, if necessary, to the nearest one
hundred-thousandth of a percentage point) of the rates as of approximately
9:00 a.m., New York City time, on such Federal Funds Rate Interest
Determination Date for the last transaction in overnight Federal Funds
arranged by three leading brokers of Federal Funds transactions in The City of
New York, New York selected by the Calculation Agent; provided, however, that
if the brokers selected as aforesaid by the Calculation Agent are not quoting
as mentioned in this sentence, the Federal Funds Rate determined with respect
to such Federal Funds Rate Interest Determination Date shall be the Federal
Funds Rate determined with respect to the immediately preceding Federal Funds
Rate Interest Determination Date or, in the case of the first Federal Funds
Rate Interest Determination Date, the Initial Interest Rate specified above.
Determination of LIBOR. (i) If an Interest Rate Basis for this Note is
LIBOR, as indicated above, LIBOR determined with respect to any applicable
Interest Determination Date (a "LIBOR Interest Determination Date"), shall be
either: (a) the arithmetic mean (rounded, if necessary, to the nearest one
hundred-thousandth of a percentage point) of the offered rates, as calculated
by the Calculation Agent, for deposits in U.S. Dollars of not less than U.S.
$1,000,000 having the Index Maturity specified above, commencing on the second
London Business Day immediately following such LIBOR Interest Determination
Date, which appear on the Reuters Screen LIBO Page (as defined below) as of
approximately 11:00 a.m., London time, on such LIBOR Interest Determination
Date, if at least two such offered rates appear on the Reuters Screen LIBOR
Page ("LIBOR Reuters"), or (b) the rate for deposits in U.S. Dollars of not
less than U.S. $1,000,000 having the Index Maturity designated in the
applicable Pricing Supplement, commencing on the second London Business Day
immediately following such LIBOR Interest Determination Date, which appears on
the Telerate Page 3750 (as defined below) as of 11:00 a.m., London time, on
such LIBOR Interest Determination Date ("LIBOR Telerate"). "Reuters Screen
LIBO Page" means the display designated as page "LIBO" on the Reuters Monitor
Money Rates Service (or such other page as may replace the LIBO page on that
service for the purpose of displaying London interbank offered rates of major
banks). "Telerate Page 3750" means the display designated as page "3750" on
the Telerate Service (or such other page as may replace the 3750 page on that
service or such other service or services as may be nominated by the British
Bankers' Association for the purpose of displaying London interbank offered
rates for U.S. Dollar deposits). If neither LIBOR Reuters nor LIBOR Telerate
is specified above, LIBOR will be determined as if LIBOR Telerate had been
specified. If fewer than two offered rates appear on the Reuters Screen LIBO
Page, or if no rate appears on the Telerate Page 3750, as applicable, LIBOR in
respect of that LIBOR Interest Determination Date will be determined as if the
parties had specified the rate described in (ii) below.
(ii) With respect to a LIBOR Interest Determination Date on which fewer than
two offered rates appear on the Reuters Screen LIBO Page as specified in
(i)(a) above, or on which no rate appears on Telerate Page 3750, as specified
in (i)(b) above, as applicable, the Calculation Agent shall request the
principal London offices of each of four major reference banks in the London
interbank market selected by the Calculation Agent to provide the Calculation
Agent with a quotation of the rate at which deposits in U.S. Dollars for the
period of the Index Maturity specified above, commencing on the second London
Business Day immediately following such LIBOR
8
Interest Determination Date, are offered by it to prime banks in the London
interbank market as of approximately 11:00 a.m., London time, on such LIBOR
Interest Determination Date and in a principal amount equal to an amount of
not less than U.S. $1,000,000 that is representative for a single transaction
in such market at such time. If at least two such quotations are provided,
LIBOR with respect to such LIBOR Interest Determination Date shall be the
arithmetic mean (rounded, if necessary, to the nearest one hundred-thousandth
of a percentage point) of such quotations as calculated by the Calculation
Agent. If fewer than two quotations are provided, LIBOR for such LIBOR
Interest Determination Date shall be the arithmetic mean (rounded, if
necessary, to the nearest one hundred-thousandth of a percentage point), as
calculated by the Calculation Agent, of the rates quoted as of approximately
11:00 a.m., New York City time, on such LIBOR Interest Determination Date by
three major banks in The City of New York, New York selected by the
Calculation Agent (after consultation with the Company) for loans in United
States Dollars to leading European banks, having the Index Maturity specified
above commencing on the second London Business Day immediately following such
LIBOR Interest Determination Date and in a principal amount equal to an amount
of not less than U.S. $1,000,000 that is representative for a single
transaction in such market at such time; provided, however, that if the banks
selected as aforesaid by the Calculation Agent are not quoting as mentioned in
this sentence, LIBOR determined with respect to such LIBOR Interest
Determination Date shall be LIBOR determined with respect to the immediately
preceding LIBOR Interest Determination Date or, in the case of the first LIBOR
Interest Determination Date, the Initial Interest Rate specified above.
Determination of Prime Rate. If an Interest Rate Basis for this Note is the
Prime Rate, as indicated above, the Prime Rate determined with respect to the
applicable Interest Determination Date (a "Prime Rate Interest Determination
Date") shall be the arithmetic mean (rounded, if necessary, to the nearest one
hundred-thousandth of a percentage point), as calculated by the Calculation
Agent, of the prime rates quoted on the basis of the actual number of days in
the year divided by 360 as of the close of business on such Prime Rate
Interest Determination Date by three major money center banks in The City of
New York, New York, selected by the Calculation Agent (after consultation with
the Company). If fewer than three such quotations are provided, the Prime Rate
shall be calculated by the Calculation Agent (as described above) on the basis
of the prime rates quoted in The City of New York, New York by the appropriate
number of substitute banks or trust companies organized and doing business
under the laws of the United States of America, or any state thereof, each
having total equity capital of at least U.S. $500,000,000 and being subject to
supervision or examination by a federal or state authority, selected by the
Calculation Agent (after consultation with the Company) to quote such rate or
rates; provided, however, that if the banks or trust companies selected as
aforesaid by the Calculation Agent (after consultation with the Company) are
not quoting as mentioned in this sentence, the Prime Rate determined with
respect to such Prime Rate Interest Determination Date shall be the Prime Rate
determined with respect to the immediately preceding Prime Rate Interest
Determination Date or, in the case of the first Prime Rate Interest
Determination Date, the Initial Interest Rate specified above.
Determination of Treasury Rate. If an Interest Rate Basis for this Note is
the Treasury Rate, as specified above, the Treasury Rate determined with
respect to the applicable Interest Determination Date (a "Treasury Rate
Interest Determination Date") shall be the rate for the most recent auction of
direct obligations of the United States ("Treasury Bills") having the Index
Maturity specified above, as such rate is published in H.15(519), under the
heading "U.S. Government Securities--Treasury Bills--auction average
(investment)" or, if not so published by 3:00 p.m., New York City time, on the
Calculation Date relating to such Treasury Rate Interest Determination Date,
the auction average rate (expressed as a bond equivalent rounded, if
necessary, to the nearest one hundred-thousandth of a percentage point, on the
basis of a year of 365 or 366 days, as applicable, and applied on a daily
basis) as otherwise announced by the United States Department of the Treasury.
In the event that the results of the auction of Treasury bills having the
Index Maturity specified above are not published or announced as described
above by 3:00 p.m., New York City time, on such Calculation Date, or if no
such auction is held in a particular week, then the Treasury Rate for such
Treasury Rate Interest Determination Date shall be calculated by the
Calculation Agent and shall be a yield to maturity (expressed as a bond
equivalent rounded, if necessary, to the nearest one hundred-thousandth of a
percentage point, on the basis of a year of 365 or 366 days, as applicable,
and applied on a daily basis) of the arithmetic mean (rounded, if necessary,
to the nearest one hundred-thousandth of a percentage point) of the secondary
market bid rates, as of approximately
9
3:30 p.m., New York City time, on such Treasury Rate Interest Determination
Date of three leading primary United States government securities dealers
(which, unless otherwise specified above, may include an affiliate of the
Calculation Agent or a selling agent or an underwriter hereof) selected by the
Calculation Agent (after consultation with the Company), for the issue of
Treasury Bills with a remaining maturity closest to the Index Maturity
specified above; provided, however, that if the dealers selected as aforesaid
by the Calculation Agent are not quoting as mentioned in this sentence, the
Treasury Rate determined with respect to such Treasury Rate Interest
Determination Date shall be the Treasury Rate determined with respect to the
immediately preceding Treasury Rate Interest Determination Date or, in the
case of the first Treasury Rate Interest Determination Date, the Initial
Interest Rate specified above.
The Calculation Agent shall calculate the interest rate hereon in accordance
with the foregoing on or before each Calculation Date. All acts taken by the
Calculation Agent under the Calculation Agency Agreement dated as of ,
199 , between the Company and The Bank of New York (the "Calculation Agent"),
as the Calculation Agent referred to above shall be deemed to have been taken
by the Calculation Agent solely in its capacity as an agent of the Company and
shall not create or imply any obligation to, or any agency or trust
relationship with, the beneficial owners or Holder hereof.
At the request of the Holder hereof, the Calculation Agent shall provide to
the Holder hereof the interest rate hereon then in effect and, if determined,
the interest rate which shall become effective as of the next Interest Reset
Date. Any such calculation shall, absent manifest error, be conclusive and
binding for all purposes.
This Note, and any Note or Notes issued upon transfer or exchange hereof,
may be issued only in fully registered form, without coupons, in denominations
of $1,000 and any integral multiple of $1,000.
As provided in the Indenture and subject to certain limitations therein set
forth (including without limitation the restrictions on exchange under
Sections 2.02 and 2.08 of the Indenture in the event this Note is a global
Security), Notes are exchangeable for a like aggregate principal amount of
Notes of a different authorized denomination and otherwise bearing identical
terms and provisions, as requested by the Holder surrendering the same at the
office of the Registrar in The City of New York, New York designated for such
purpose.
As provided in the Indenture and subject to certain limitations therein set
forth (including without limitation the restrictions on transfer under
Sections 2.02 and 2.08 of the Indenture in the event this Note is a global
Security), the transfer of this Note is registrable in the security register,
upon surrender of this Note for registration of transfer at the office of the
Registrar in The City of New York, New York designated for such purpose, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Registrar duly executed by, the Holder
hereof or his attorney duly authorized in writing, and thereupon one or more
new registered Notes, of authorized denominations and of a like aggregate
principal amount and otherwise bearing identical terms and provisions, will be
issued in the name of the designated transferee or transferees.
No service charge shall be made for any such registration of transfer or
exchange, but the Company or the Registrar may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in connection therewith. Initially, the Trustee will act as Registrar and the
office at which Notes must be surrendered for registration of transfer or
exchange is currently the Corporate Trust Department of the Trustee, ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
person in whose name this Note is registered as the owner hereof for all
purposes of this Note, whether or not this Note shall be overdue, and none of
the Company, the Trustee or any such agent shall be affected by notice to the
contrary.
The Indenture permits, with certain exceptions as therein provided, the
Indenture (insofar as the Notes are concerned) or the Notes to be amended or
supplemented and the rights and obligations of the Company and the rights of
the Holders of Notes to be modified by the Company and the Trustee with the
consent of the Holders
10
of a majority in principal amount of the Notes at the time outstanding. The
Indenture also contains provisions permitting the Holders of a majority in
principal amount of the outstanding Notes, on behalf of all the Holders of
Notes, to waive compliance by the Company with certain provisions of the
Indenture and certain past defaults under the Indenture and their
consequences, in each case insofar as the Notes are concerned. Any such
consent or waiver by the Holder of this Note shall be conclusive and binding
upon such Holder and upon all future Holders of this Note and of any Note
issued upon the registration of transfer hereof or in exchange herefor or in
lieu hereof, whether or not notation of such consent or waiver is made upon
this Note. Without the consent of any Holder, the Company and the Trustee may
amend or supplement the Indenture or the Notes to cure any ambiguity, defect
or inconsistency or to make certain other specified changes or any change that
does not materially adversely affect the rights of any Holder. Holders of
Notes may not enforce their rights pursuant to the Indenture or the Notes
except as provided in the Indenture.
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, premium, if any, and
interest on this Note at the times, place and rate, and in the manner and coin
or currency, herein prescribed.
When a successor corporation assumes all the obligations of its predecessor
under the Notes and the Indenture as provided in the Indenture, the
predecessor corporation will be released from these obligations.
A director, officer, employee, or stockholder, as such, of the Company or
the Trustee shall not have any liability for any obligations of the Company or
the Trustee under the Notes or the Indenture or for any claim based on, in
respect of, or by reason of such obligations or their creation. Each Holder by
accepting a Note waives and releases all such liability. The waiver and
release are part of the consideration for the issue of the Notes.
The Indenture and the Notes shall be governed by and construed in accordance
with the laws of the State of New York applicable to agreements made and to be
performed in such State.
Unless the certificate of authentication hereon has been executed by the
Trustee by the manual signature of one of its authorized officers, this Note
shall not be entitled to any benefit under the Indenture (as defined herein)
or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, THE COMPANY HAS CAUSED THIS INSTRUMENT TO BE DULY
EXECUTED, MANUALLY OR BY FACSIMILE.
TCI Communications, Inc.
By: _________________________________
Attest: _____________________________
Secretary
Dated:
CERTIFICATE OF AUTHENTICATION: This
is one of the Securities of the
series designated herein referred
to in the within-mentioned
Indenture.
The Bank of New York
as Trustee
By: _________________________________
Authorized Signatory
11
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations.
TEN COM--as tenants in common
UNIF GIFT MIN ACT-- ..................... Custodian.....................
Under Uniform Gifts to Minors Act
...........................
TEN ENT--as tenants by the entireties
JT TEN--as joint tenants with right of survivorship and not as tenants
in common
Additional abbreviations may also be used though not in the above list.
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the Company to
repay this Note (or portion hereof specified below) pursuant to its terms at a
price equal to 100% of the principal amount of this Note (or of such specified
portion) together with interest on the amount to be repaid to the repayment
date, to the undersigned, at:
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
(Please print or typewrite name and address of the undersigned.)
For this Note to be repaid in whole or in part, the Paying Agent must
receive at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (or at
such other place or places in The City of New York, New York of which the
Company shall from time to time notify the Holder of this Note), not more than
60 nor less than 30 days prior to an Optional Repayment Date, if any, shown on
this Note, either (i) this Note with this "Option to Elect Repayment" form
duly completed or (ii) a telegram, telex, facsimile transmission or letter
from a member of a national securities exchange or the National Association of
Securities Dealers, Inc. or a commercial bank or trust company in the United
States setting forth the name of the Holder of this Note, the Principal amount
of this Note, the principal amount of this Note to be repaid, the certificate
number or a description of the tenor and terms hereof, a statement that the
option to elect repayment is being exercised thereby and a guarantee that this
Note, with this "Option to Elect Repayment" form duly completed, will be
surrendered to the Paying Agent not later than five Business Days after the
date of such telegram, telex, facsimile transmission or letter and this Note,
with this form duly completed, are received by the Paying Agent by such fifth
Business Day.
If less than the entire principal amount of this Note is to be repaid,
specify the portion hereof (which shall be denominations of $1,000 principal
amount) which the Holder elects to have repaid and specify the denomination or
denominations (which shall be $1,000 or an integral multiple of $1,000) of the
Notes to be issued to the Holder for the portion of this Note not being repaid
(in the absence of any such specification, one such Note will be issued for
the portion not being repaid).
$ ___________________________________ Signature: __________________________
Date ________________________________ Notice: The signature on this Option
to Elect Repayment must correspond
with the name as written upon the
face of this Note in every
particular, without alteration or
enlargement or any change
whatsoever.
12
ASSIGNMENT FORM
For Value Received, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Please print or typewrite name and address including zip code of assignee and
insert Taxpayer Identification No.)
the attached Note and all rights thereunder, hereby irrevocably constituting
and appointing attorney to transfer said Note on the books of the
issuer, with full power of substitution in the premises.
Dated: ______________________________ Signature: __________________________
Notice: The signature of the
registered owner to this assignment
must correspond with the name as
written upon face of the Note in
every particular, without
alteration or enlargement or any
change whatsoever.
Signature Guarantee: ________________
13