UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K/A1
AMENDMENT NO. 1
TO
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934 (FEE REQUIRED)
For the fiscal year ended May 31, 1996
Commission file number 0-19603
CENTURY COMMUNICATIONS CORP.
(Exact name of registrant as specified in its charter)
New Jersey 06-1158179
(State of incorporation) (I.R.S. Employer
Identification No.)
50 Locust Avenue, New Canaan, Connecticut 06840
(Address of principal executive offices) (Zip
Code)
Registrant's telephone number, including area code: (203) 972-2000
Securities registered pursuant to Section 12(b) of the Act: None
Securities registered pursuant to Section 12(g) of the Act:
Name of each exchange
Title of each class
on which registered
Class A Common Stock, Par Value $.01 per share The Nasdaq Stock
Market
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act
of 1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such filing requirements for the past 90 days. YES X
NO
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained,
to the best of the registrant's knowledge, in definitive proxy or
information statements incorporated by reference in Part III of this Form
10-K or any amendment to this Form 10-K. X
As of August 16, 1996, there were 29,014,414 shares of Class A Common Stock
outstanding and 45,101,115 shares of Class B Common Stock outstanding. The
aggregate market value of the Class A Common Stock held by non-affiliates
of the Company, based upon the last reported sale price of the Class A
Common Stock on The Nasdaq Stock Market on August 16, 1996 of $8.50 per
share, was $239,274,626.
DOCUMENTS INCORPORATED BY REFERENCE
None.
EXPLANATORY NOTE
This Form 10-K/A1 is being filed by Century Communications Corp., a
New Jersey corporation (the "Company"), as an amendment to its Annual
Report on Form 10-K for the fiscal year ended May 31, 1996 to make certain
amendments to Part IV -- Item 14(a)(4) thereof and to make certain
amendments to the Exhibit Index thereof to reflect the inclusion of
exhibits labeled Exhibit 10(kk) and Exhibit 10(ll).
PART IV
ITEM 14. EXHIBITS FINANCIAL STATEMENTS SCHEDULES, AND REPORTS ON FORM 8-K
* * *
4. Exhibits
The following documents are filed as part of this Annual Report on
Form 10-K:
3(a) - Restated Certificate of Incorporation of the Company, filed as
Exhibit 6(a)(i) to the Company's Quarterly Report on Form 10-Q
for the quarter ended February 28, 1990 and incorporated herein
by reference and Amendment to Restated Certificate of
Incorporation of the Company, filed as Exhibit 6(a)(i) to the
Company's Quarterly Report on Form 10-Q for the quarter ended
November 30, 1990 and incorporated herein by reference.
3(b) - By-laws of the Company, as amended, filed as Exhibit 3(b) to
the Company's Annual Report on Form 10-K for the year ended May
31, 1995, and incorporated herein by reference.
3(c) - Articles of Association and Memorandum of Association of ECT.
4(a) - Eighth Restated Credit Agreement, dated as of July 10, 1990,
between Century Texas, Century Investors and Citibank, N.A., on
behalf of itself and as agent, and The Chase Manhattan Bank
(National Association), The Bank of Nova Scotia, The First
National Bank of Chicago, Bank of Montreal, The Royal Bank of
Canada, Continental Bank N.A., Bankers Trust Company, Nippon
Credit Bank, Provident National Bank, and Security Pacific
National Bank (the "Eighth Restated Banks"), filed as an Exhibit
to the Company's Current Report on Form 8-K, filed July 13, 1990,
and incorporated herein by reference.
4(b) - Third Amendment, dated as of November 21, 1990 (the "Third
Amendment"), among Centennial Cellular Corp., a Delaware
corporation ("Centennial Cellular Corp."), the Lender parties on
the signature page thereto, Citibank, N.A., as agent, Century
Cellular Holding Corp., and the Guarantor of parties on the
signature page thereto, to the Credit Agreement, dated as of
October 11, 1989, among Centennial Cellular Corp., and Citibank,
N.A., on behalf of itself and as agent, and
Kansallis-Osake-Pankki, Provident National Bank, DnC America
Banking Corporation, Meridian Bank, Lincoln Savings Bank, Toronto
Dominion Bank, and The Bank of Nova Scotia (the "Cellular
Banks"), filed as an Exhibit to the Company's Quarterly Report on
Form 10-Q for the quarter ended November 30, 1991, and
incorporated herein by reference.
4(c) - Credit Agreement, dated as of October 11, 1989, among
Centennial Cellular Corp., and Citibank, N.A., on behalf of
itself and as agent, and the Cellular Banks, filed as Exhibit
4(c) to the Company's Annual Report on Form 10-K for the year
ended May 31, 1990, and incorporated herein by reference.
4(d) - Credit Agreement, dated as of October 11, 1989, among
Centennial Cellular Corp., and Citibank, N.A., on behalf of
itself and as agent, and the Cellular Banks, as Amended and
Restated pursuant to the Third Amendment, filed as an Exhibit to
the Company's Quarterly Report on Form 10-Q for the quarter ended
November 30, 1991, and incorporated herein by reference.
The Company hereby agrees to furnish to the Securities and Exchange
Commission, upon its request, a copy of each instrument omitted pursuant to
item 601(b)(4)(iii) of Regulation S-K.
4(e) - Second Restated Consolidated Guaranty and Pledge Agreement,
dated as of July 10, 1990, made by the subsidiaries of the
Company set forth on the signature pages thereto to Citibank,
N.A., as agent for the Eighth Restated Banks, filed as Exhibit
4(g) to the Company's Annual Report on Form 10-K for the year
ended May 31, 1990 and incorporated herein by reference.
4(f) - Third Restated Pledge Agreement and Guaranty, dated as of July
10, 1990, made by the Company to Citibank, N.A., as agent for the
Eighth Restated Banks, filed as Exhibit 4(h) to the Company's
Annual Report on Form 10-K for the year ended May 31, 1990 and
incorporated herein by reference.
4(g) - Seventh Restated Pledge and Security Agreement, dated as of
July 10, 1990, made by Century Texas to Citibank, N.A., as agent
for the Eighth Restated Banks, filed as Exhibit (i)A to the
Company's Annual Report on Form 10-K for the year ended May 31,
1990 and incorporated herein by reference.
4(h) - Third Collateral Agreement Amendment, dated as of July 10,
1990 made by Century Texas, the Company and Citibank, N.A. as
agent for the Eighth Restated Banks, filed as Exhibit 4(i)B to
the Company's Annual Report on Form 10-K for the year ended May
31, 1990 and incorporated herein by reference.
4(i) - Pledge Agreement, dated as of October 11, 1989, made by
Century Cellular Holding Corp., a New York corporation, to
Citibank, N.A., as agent for the Cellular Banks, filed as Exhibit
4(j) to the Company's Annual Report on Form 10-K for the year
ended May 31, 1990 and incorporated herein by reference.
4(j) - Pledge Agreement, dated as of October 11, 1989, made by
Century Cellular Holding Corp., a New York corporation, to
Citibank, N.A., as agent for the Cellular Banks, filed as an
Exhibit to the Company's Quarterly Report on Form 10-Q for the
period ended November 30, 1990 and incorporated herein by
reference.
4(k) - Pledge and Security Agreement, dated as of October 11, 1989,
made by Centennial Cellular Corp. to Citibank, N.A., as agent for
the Cellular Banks, filed as Exhibit 4(k) to the Company's Annual
Report on Form 10-K for the year ended May 31, 1990 and
incorporated herein by reference.
4(l) - Pledge and Security Agreement, dated as of October 11, 1989,
made by Centennial Cellular Corp. to Citibank, N.A., as agent for
the Cellular Banks, as Amended and Restated pursuant to the Third
Amendment, filed as an Exhibit to the Company's Quarterly Report
on Form 10-Q for the period ended November 30, 1990 and
incorporated herein by reference.
4(m) - Consolidated Guaranty and Pledge Agreement, dated as of
October 11, 1989, made by the subsidiaries of Centennial Cellular
Corp. set forth on the signature pages thereto to Citibank, N.A.,
as agent for the Cellular Banks, filed as Exhibit 4(l) to the
Company's Annual Report on Form 10-K for the year ended May 31,
1990 and incorporated herein by reference.
4(n) - Consolidated Guaranty and Pledge Agreement, dated as of
October 11, 1989, made by the subsidiaries of Centennial Cellular
Corp. set forth on the signature pages thereto to Citibank, N.A.,
as agent for the Cellular Banks, as Amended and Restated pursuant
to the Third Amendment, filed as an Exhibit to the Company's
Quarterly Report on Form 10-Q for the period ended November 30,
1990 and incorporated herein by reference.
4(o) - Equity Subscription Agreement, dated as of November 21, 1990,
among Centennial Cellular, Century Communications Corp., a Texas
corporation, and Century Cellular Holding Corp., a New York
corporation, filed as Exhibit 4(o) to the Company's Annual Report
on Form 10-K for the year ended May 31, 1992 and incorporated
herein by reference.
4(p) - Indenture, dated as of November 15, 1988, by and between the
Company and the Bank of Montreal Trust Company, as Trustee, filed
as Exhibit 4(l) to Amendment No. 7 to the Company's Registration
Statement on Form S-1 (File No. 33-21394) under the Securities
Act of 1933, as amended, (the "1988 Form S-1"); said 1988 Form
S-1 having been filed with the Commission on April 22, 1988 and
incorporated herein by reference, and said Amendment No. 7 to the
1988 Form S-1 having been filed with the Commission on November
10, 1988 and incorporated herein by reference.
4(q) - Indenture, dated as of October 15, 1991, be and between the
Company and the Bank of Montreal Trust Company, as Trustee, filed
as Exhibit 4.2 to Amendment No. 2 to the Company's Registration
Statement on Form S-3 (File No. 33-33787) under the Securities
Act of 1933, as amended (the "1991 Form S-3); said 1991 Form S-3
having been filed with the Commission on August 31, 1990 and
incorporated herein by reference, and said Amendment No. 2 to the
1991 Form S-3 having been filed with the Commission on March 1,
1991 and incorporated herein by reference.
4(r) - First Supplemental Indenture, dated as of October 15, 1991, by
and between the Company and the Bank of Montreal Trust Company,
as Trustee, filed as Exhibit 7(2) to the Company's current report
on Form 8-K, dated October 17, 1991 and incorporated herein by
reference.
4(s) - Indenture, dated as of February 15, 1992, by and between the
Company and the Bank of America National Trust and Savings
Association, as Trustee, filed as Exhibit 4.3 to Amendment No. 2
to the Company's Registration Statement on Form S-3 (File No.
33-33787) under the Securities Act of 1933, as amended (the "1991
Form S-3"); said 1991 Form S-3 having been filed with the
Commission on March 9, 1990 and incorporated herein by reference,
and said Amendment No. 2 to the 1991 Form S-3 having been filed
with the Commission on March 1, 1991 and incorporated herein by
reference.
4(t) - First Supplemental Indenture, dated as of February 15, 1992,
by and between the Company and the Bank of America National Trust
and Savings Association, as Trustee, filed as Exhibit 4(t) to the
Company's Annual Report on Form 10-K for the year ended May 31,
1992 and incorporated herein by reference.
4(u) - Second Supplemental Indenture dated as of August 15, 1992 by
and between the Company and Bank of America National Trust and
Savings Association, as Trustee, filed as Exhibit 4(u) to the
Company's Annual Report on Form 10-K for the year ended May 31,
1992 and incorporated herein by reference.
4(v) - Third Supplemental Indenture dated as of April 1, 1993 by and
between the Company and Bank of America National Trust and
Savings Association, as Trustee, and incorporated herein by
reference.
4(w) - Fourth Supplemental Indenture dated as of March 6, 1995 by and
between the Company and Bank of America National Trust and
Savings Association, as Trustee, filed as Exhibit 4(w) to the
Company's Annual Report on Form 10-K for the year ended May 31,
1995, and incorporated herein by reference.
4(x) - Debenture Certificate of ECT and Debenture Deed between
Century and ECT, dated as of July 12, 1994.
10(a) - Employment Agreement, dated February 11, 1986, between the
Company and Leonard Tow, filed as Exhibit 10(a) to the 1988 Form
S-1 and incorporated herein by reference.
10(a)(1) - Amended Employment Agreement, dated as of July 1, 1991,
between the Company and Leonard Tow, filed as Exhibit 10(a)(1) to
the Company's Annual Report on Form 10-K for the year ended May
31, 1992 and incorporated herein by reference.
10(a)(2) - Agreement, dated July 30, 1992, between the Company and the
Leonard and Claire Tow Life Insurance Trust, filed as Exhibit
10(a)(2) to the Company's Annual Report on Form 10-K for the year
ended May 31, 1992 and incorporated herein by reference.
10(a)(3) - Employment Agreement, dated as of December 28, 1993, between
the Company and Scott N. Schneider, filed as Exhibit 10(a) to the
Company's Quarterly Report on Form 10-Q for the quarter ended
February 28, 1994 and incorporated herein by reference.
10(a)(4) - Employment Agreement, dated as of December 28, 1993, between
the Company and Andrew Tow, filed as Exhibit 10(b) to the
Company's Quarterly Report on Form 10-Q for the quarter ended
February 28, 1994 and incorporated herein by reference.
10(a)(5) - Employment Agreement, dated as of December 28, 1993, between
the Company and Michael G. Harris, filed as Exhibit 10(c) to the
Company's Quarterly Report on Form 10-Q for the quarter ended
February 28, 1994 and incorporated herein by reference.
10(a)(6) - Employment Agreement, dated December 28, 1993, between the
Company and Bernard P. Gallagher, filed as Exhibit 10(a)(6) to
the Company's Annual Report on Form 10-K for the year ended May
31, 1995, and incorporated herein by reference.
10(a)(7) - Employment Agreement, dated as of January 1, 1995, between the
Company and Daniel E. Gold.
10(b) - Principal Stockholders' Agreement, dated as of December 7,
1985, between Sentry Insurance a Mutual Company ("Sentry"), the
Company, Leonard Tow individually and as Trustee, and Claire Tow
as Trustee, filed as Exhibit 10(a) to the Company's Registration
Statement on Form S-1 (No. 33-2025) under the Securities Act of
1933, as amended, filed with the Commission on December 9, 1985
(the "1986 Form S-1") and incorporated herein by reference.
10(c) - Amendment to Principal Stockholders' Agreement, dated August
31, 1987, filed as an Exhibit to the Company's Current Report on
Form 8-K dated September 11, 1987 and incorporated herein by
reference.
10(d) - Lease, dated July 15, 1987, between Locust Avenue Associates
and Century-Texas, filed as Exhibit 10(h) to the 1988 Form S-1
and incorporated herein by reference.
10(e) - Addendum to Lease, effective December 1, 1988, between Locust
Avenue Associates and Century-Texas, filed as Exhibit 10(i) to
the Company's Annual Report on Form 10-K for the year ended May
31, 1989 and incorporated herein by reference.
10(f) - Addendum to Lease, effective April 1, 1990, between Locust
Avenue Associates and Century-Texas, filed as Exhibit 10(j) to
the Company's Annual Report on Form 10-K for the year ended May
31, 1990 and incorporated herein by reference.
10(g) - Addendum to Lease, effective December 1, 1990, between Locust
Avenue Associates and Century-Texas, filed as Exhibit 10(k) to
the Company: Annual Report on Form 10-K for the year ended May
31, 1991 and incorporated herein by reference.
10(h) - Addendum to Lease, effective May 1, 1991, between Locust
Avenue Associates and Century-Texas, filed as Exhibit 10(1) to
the Company's Annual Report on Form 10-K for the year ended May
31, 1991 and incorporated herein by reference.
10(i) - Addendum to Lease, effective December 1, 1992, between Locust
Avenue Associates and Century-Texas filed as Exhibit 10(i) to the
Company's Annual Report on Form 10-K for the year ended May 31,
1993 and incorporated herein by reference.
10(j) - Floating Rate Subordinated Note, dated November 5, 1981, of
Century Texas payable to The Sentry Corporation, filed as Exhibit
10(e) to the 1986 Form S-1 and incorporated herein by reference.
10(k) - Floating Rate Subordinated Note, dated March 1, 1982, of
Century Texas payable to The Sentry Corporation, filed as Exhibit
10(f) to the 1986 Form S-1 and incorporated herein by reference.
10(l) - Floating Rate Subordinated Note, dated November 13, 1987, of
Century-Texas to Sentry, filed as Exhibit 10(k) to the 1988 Form
S-1 and incorporated herein by reference.
10(m) - Joint Venture Agreement, dated as July 26, 1974, among
American Television and Communications Corporation, Century Texas
and Century Venture Corporation, filed as Exhibit 10(g) to the
1986 Form S-1 and incorporated herein by reference.
10(n) - Third Agreement of Amendment to the Amended and Restated Joint
Venture Agreement, dated June 18, 1987, among American Television
and Communications Corporation, Daniels & Associates, Inc.,
Tele-Communications, Inc., Comcast Corporation and Century
Southwest Cable Television, Inc., filed as Exhibit 10(m) to the
1988 Form S-1 and incorporated herein by reference.
10(o) - Colorado Springs Joint Sharing and Buy-Sell Agreement, dated
November 1, 1974, among Century Venture Corporation, Century
Colorado Corp., American Television and Communications
Corporation, Century Texas and Vumore-Video Corporation of
Colorado, Inc., filed as Exhibit 10(h) to the 1986 Form S-1 and
incorporated herein by reference.
10(p) - 1985 Stock Option Plan of the Company, filed as Annex A to the
Company's Registration Statement on Form S-8 (File No. 33-34387)
under the Securities Act of 1933, as amended, filed with the
Commission on April 19, 1990 and incorporated herein by
reference.
10(q) - Incentive Award Plan of the Company, filed as Annex A to the
Company's Registration Statement on Form S-8 (File No. 33-23717)
under the Securities Act of 1933, as amended, filed with the
Commission on August 11, 1988 and incorporated herein by
reference.
10(r) - 1985 Employee Stock Purchase Plan of the Company, as amended,
filed as Exhibit 10(r) to the Company's Annual Report on Form 10-
K for the year ended May 31, 1995, and incorporated herein by
reference.
10(s) - Non-Employee Director Stock Option Plan of the Company, filed
as Annex A to the Company's Registration Statement on Form S-8
(File No. 33-34388) under the Securities Act of 1933, as amended,
filed with the Commission on April 19, 1990 and incorporated
herein by reference.
10(t) - 1985 Stock Equivalent Plan, filed as Exhibit 10(m) to the 1986
Form S-1 and incorporated herein by reference.
10(u) - Century Retirement Investment Plan, filed as Exhibit 10(x) to
the Company's Annual Report on Form 10-K for the year ended May
31, 1992 and incorporated herein by reference.
10(v)(1) - Century 1992 Management Equity Incentive Plan, filed as
Exhibit 10(x)(1) to the Company's Annual Report on Form 10-K for
the year ended May 31, 1992 and incorporated herein by reference.
10(v)(2) - 1993 Non-Employee Directors' Stock Option Plan of the Company,
filed as Exhibit 10(v)(2) to the Company's Annual Report on Form
10-K for the year ended May 31, 1995, and incorporated herein by
reference.
10(v)(3) - 1994 Stock Option Plan of the Company, filed as Exhibit
10(v)(3) to the Company's Annual Report on Form 10-K for the year
ended May 31, 1995, and incorporated herein by reference.
10(w) - Interest Rate Swap Agreement, dated as of July 18, 1986,
between Citibank, N.A. and Century-Texas, filed as Exhibit 10(v)
to Amendment No. 5 to the 1988 Form S-1 and incorporated herein
by reference.
10(x) - Interest Rate Swap Agreement, dated as of May 20, 1987,
between The First National Bank of Chicago and Century-Texas,
filed as Exhibit 10(g) to Amendment No. 5 to the 1988 Form S-1
and incorporated herein by reference.
10(y) - Interest Rate and Currency Exchange Agreement, dated as of
February 14, 1990, between Centennial Cellular Corp. and
Citibank, N.A., filed as Exhibit 10(x) to the Company's Annual
Report on Form 10-K for the year ended May 31, 1990 and
incorporated herein by reference.
10(z) - Interest Rate and Currency Exchange Agreement dated January
17, 1991 between Century Communications Corp. and Bankers Trust
Company, filed as Exhibit 10(aaa) to the Company's Annual Report
on Form 10-K for the year ended May 31, 1991 and incorporated
herein by reference.
10(aa) - Interest Rate and Currency Exchange Agreement dated between
Century Communications Corp. and Security Pacific National Bank,
filed as Exhibit 10(aaaa) to the Company's Annual Report on Form
10-K for the year ended May 31, 1991 and incorporated herein by
reference.
10(bb) - Management Agreement and Joint Venture Agreement (Century-ML
Venture), dated December 16, 1986, between Century Texas, and ML
Media Partners, L.P., a Delaware limited partnership, filed as
Exhibit 10(v) to the Company's Annual Report on Form 10-K for the
year ended May 31, 1989 and incorporated herein by reference.
10(cc) - Amendment No. 1 to Management Agreement and Joint Venture
Agreement (Century ML Venture), dated September 21, 1987, between
Century Texas and ML Media Partners, L.P., a Delaware limited
partnership, filed as Exhibit 10(w) to the Company's Annual
Report on Form 10-K for the year ended May 31, 1989 and
incorporated herein by reference.
10(dd) - Management Agreement and Joint Venture Agreement (Century-ML
Radio Venture), dated as of February 15, 1989, between Century
Texas and ML Media Partners, L.P., a Delaware limited
partnership, filed as Exhibit 10(x) to the Company's Annual
Report on Form 10-K for the year ended May 31, 1989 and
incorporated herein by reference.
10(ee) - Plan and Agreement of Merger, dated August 2, 1991, by and
among Century Cellular Holding Corp., Century Cellular Corp.,
Citizens Utilities Company and Citizens Cellular Corp., together
with exhibits, including Management Agreement,
Conflicts/Non-Compete Agreement, Stock Transfer Agreement and
Registration Rights Agreement, filed as Exhibit 10(cc) to the
Company's Annual Report on Form 10-K for the year ended May 31,
1991 and incorporated herein by reference.
10(ff) - Credit Agreement, dated as of August 4, 1995, by and among
CCC-I, Inc., Pullman TV Cable Co., Inc., Kootenai Cable, Inc.,
Citibank N.A., as agent, and each of the banks parties thereto.
The Company hereby agrees to furnish to the Securities and
Exchange Commission, upon its request, a copy of each instrument
omitted pursuant to Item 601(b)(4)(iii) of Regulation S-K.
10(gg) - Credit Agreement, dated as of June 30, 1994, by and among CCC-
II, Inc., Citibank N.A. as managing agent, and each of the banks
parties thereto, filed as Exhibit 10 to the Company's report on
Form 8-K dated July 25, 1994 and incorporated herein by
reference. The Company hereby agrees to furnish to the
Securities and Exchange Commission, upon its request, a copy of
each instrument omitted pursuant to Item 601(b)(4)(iii) of
Regulation S-K.
10(hh) - Terms Agreement, dated February 27, 1995, between Century
Communications Corp. and Merrill, Lynch, Pierce, Fenner & Smith
Incorporated, filed as Exhibit 10(hh) to the Company's Annual
Report on Form 10-K for the year ended May 31, 1995, and
incorporated herein by reference.
10(ii) - Franchise Agreement, dated as of July 8, 1994, between
Australis and ECT, together with amending letters.
10(jj) - Optus Customer Service Agreement, dated as of October 14,
1994, between Optus, Australis and Continental Century Pay TV Pty
Limited, a New South Wales corporation ("CCPTV").
10(kk) - Subscription Television Distribution Agreement between CCPTV
and Australis, together with the amending letter from Australis
to CCPTV. .
10(ll) - Infrastructure Utilization Agreement, dated as of June 13,
1995, between Australis, New World Telecommunications Pty
Limited, a New South Wales corporation, ECT and CCPTV.
10(mm) - Advisory and Oversight Agreement, between Century Australia
Pty Limited, an Australian corporation and Century Nevada.
10(nn) - Advisory and Technical Services Agreement, between ECT and
Century Nevada.
11 - Computation of loss per common share.
21 - List of subsidiaries of the Company.
23.1 - Consent of Deloitte & Touche LLP.
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the
Securities Exchange Act of 1934, as amended, the Company has duly caused
this report to be signed on its behalf by the undersigned, hereunto duly
authorized, on the 28th day of August, 1996.
CENTURY COMMUNICATIONS CORP.
By: /s/ Scott N. Schneider
Scott N. Schneider
Senior Vice President
and Treasurer
EXHIBIT INDEX
EXHIBIT SEQUENTIALLY
NUMBER EXHIBIT NUMBERED PAGE
3(a) Restated Certificate of
Incorporation of the Company,
filed as Exhibit 6(a)(i) to the
Company's Quarterly Report on
Form 10-Q for the quarter ended
February 28, 1990 and
incorporated herein by reference
and Amendment to Restated
Certificate of Incorporation of
the Company, filed as Exhibit
6(a)(i) to the Company's
Quarterly Report on Form 10-Q
for the quarter ended November
30, 1990 and incorporated herein
by reference.
3(b) By-laws of the Company, as
amended, filed as Exhibit 3(b)
to the Company's Annual Report
on Form 10-K for the year ended
May 31, 1995, and incorporated
herein by reference.
3(c) Articles of Association and
Memorandum of Association of
ECT.
4(a) Eighth Restated Credit
Agreement, dated as of July 10,
1990, between Century Texas,
Century Investors and Citibank,
N.A., on behalf of itself and as
agent, and The Chase Manhattan
Bank (National Association), The
Bank of Nova Scotia, The First
National Bank of Chicago, Bank
of Montreal, The Royal Bank of
Canada, Continental Bank N.A.,
Bankers Trust Company, Nippon
Credit Bank, Provident National
Bank, and Security Pacific
National Bank (the "Eighth
Restated Banks"), filed as an
Exhibit to the Company's Current
Report on Form 8-K, filed July
13, 1990, and incorporated
herein by reference.
4(b) Third Amendment, dated as of
November 21, 1990 (the "Third
Amendment"), among Centennial
Cellular Corp., a Delaware
corporation ("Centennial
Cellular Corp."), the Lender
parties on the signature page
thereto, Citibank, N.A., as
agent, Century Cellular Holding
Corp., and the Guarantor of
parties on the signature page
thereto, to the Credit
Agreement, dated as of October
11, 1989, among Centennial
Cellular Corp., and Citibank,
N.A., on behalf of itself and as
agent, and
Kansallis-Osake-Pankki,
Provident National Bank, DnC
America Banking Corporation,
Meridian Bank, Lincoln Savings
Bank, Toronto Dominion Bank, and
The Bank of Nova Scotia (the
"Cellular Banks"), filed as an
Exhibit to the Company's
Quarterly Report on Form 10-Q
for the quarter ended November
30, 1991, and incorporated
herein by reference.
4(c) Credit Agreement, dated as of
October 11, 1989, among
Centennial Cellular Corp., and
Citibank, N.A., on behalf of
itself and as agent, and the
Cellular Banks, filed as Exhibit
4(c) to the Company's Annual
Report on Form 10-K for the year
ended May 31, 1990, and
incorporated herein by
reference.
4(d) Credit Agreement, dated as of
October 11, 1989, among
Centennial Cellular Corp., and
Citibank, N.A., on behalf of
itself and as agent, and the
Cellular Banks, as Amended and
Restated pursuant to the Third
Amendment, filed as an Exhibit
to the Company's Quarterly
Report on Form 10-Q for the
quarter ended November 30, 1991,
and incorporated herein by
reference.
The Company hereby agrees to
furnish to the Securities and Exchange
Commission, upon its request, a copy of
each instrument omitted pursuant to item
601(b)(4)(iii) of Regulation S-K.
4(e) Second Restated Consolidated
Guaranty and Pledge Agreement,
dated as of July 10, 1990, made
by the subsidiaries of the
Company set forth on the
signature pages thereto to
Citibank, N.A., as agent for the
Eighth Restated Banks, filed as
Exhibit 4(g) to the Company's
Annual Report on Form 10-K for
the year ended May 31, 1990 and
incorporated herein by
reference.
4(f) Third Restated Pledge Agreement
and Guaranty, dated as of
July 10, 1990, made by the
Company to Citibank, N.A., as
agent for the Eighth Restated
Banks, filed as Exhibit 4(h) to
the Company's Annual Report on
Form 10-K for the year ended
May 31, 1990 and incorporated
herein by reference.
4(g) Seventh Restated Pledge and
Security Agreement, dated as of
July 10, 1990, made by Century
Texas to Citibank, N.A., as
agent for the Eighth Restated
Banks, filed as Exhibit (i)A to
the Company's Annual Report on
Form 10-K for the year ended May
31, 1990 and incorporated herein
by reference.
4(h) Third Collateral Agreement
Amendment, dated as of July 10,
1990 made by Century Texas, the
Company and Citibank, N.A. as
agent for the Eighth Restated
Banks, filed as Exhibit 4(i)B to
the Company's Annual Report on
Form 10-K for the year ended May
31, 1990 and incorporated herein
by reference.
4(i) Pledge Agreement, dated as of
October 11, 1989, made by
Century Cellular Holding Corp.,
a New York corporation, to
Citibank, N.A., as agent for the
Cellular Banks, filed as Exhibit
4(j) to the Company's Annual
Report on Form 10-K for the year
ended May 31, 1990 and
incorporated herein by
reference.
4(j) Pledge Agreement, dated as of
October 11, 1989, made by
Century Cellular Holding Corp.,
a New York corporation, to
Citibank, N.A., as agent for the
Cellular Banks, filed as an
Exhibit to the Company's
Quarterly Report on Form 10-Q
for the period ended November
30, 1990 and incorporated herein
by reference.
4(k) Pledge and Security Agreement,
dated as of October 11, 1989,
made by Centennial Cellular
Corp. to Citibank, N.A., as
agent for the Cellular Banks,
filed as Exhibit 4(k) to the
Company's Annual Report on Form
10-K for the year ended May 31,
1990 and incorporated herein by
reference.
4(l) Pledge and Security Agreement,
dated as of October 11, 1989,
made by Centennial Cellular
Corp. to Citibank, N.A., as
agent for the Cellular Banks, as
Amended and Restated pursuant to
the Third Amendment, filed as an
Exhibit to the Company's
Quarterly Report on Form 10-Q
for the period ended November
30, 1990 and incorporated herein
by reference.
4(m) Consolidated Guaranty and Pledge
Agreement, dated as of October
11, 1989, made by the
subsidiaries of Centennial
Cellular Corp. set forth on the
signature pages thereto to
Citibank, N.A., as agent for the
Cellular Banks, filed as Exhibit
4(l) to the Company's Annual
Report on Form 10-K for the year
ended May 31, 1990 and
incorporated herein by
reference.
4(n) Consolidated Guaranty and Pledge
Agreement, dated as of October
11, 1989, made by the
subsidiaries of Centennial
Cellular Corp. set forth on the
signature pages thereto to
Citibank, N.A., as agent for the
Cellular Banks, as Amended and
Restated pursuant to the Third
Amendment, filed as an Exhibit
to the Company's Quarterly
Report on Form 10-Q for the
period ended November 30, 1990
and incorporated herein by
reference.
4(o) Equity Subscription Agreement,
dated as of November 21, 1990,
among Centennial Cellular,
Century Communications Corp., a
Texas corporation, and Century
Cellular Holding Corp., a New
York corporation, filed as
Exhibit 4(o) to the Company's
Annual Report on Form 10-K for
the year ended May 31, 1992 and
incorporated herein by
reference.
4(p) Indenture, dated as of November
15, 1988, by and between the
Company and the Bank of Montreal
Trust Company, as Trustee, filed
as Exhibit 4(l) to Amendment No.
7 to the Company's Registration
Statement on Form S-1 (File No.
33-21394) under the Securities
Act of 1933, as amended, (the
"1988 Form S-1"); said 1988 Form
S-1 having been filed with the
Commission on April 22, 1988 and
incorporated herein by
reference, and said Amendment
No. 7 to the 1988 Form S-1
having been filed with the
Commission on November 10, 1988
and incorporated herein by
reference.
4(q) Indenture, dated as of October
15, 1991, be and between the
Company and the Bank of Montreal
Trust Company, as Trustee, filed
as Exhibit 4.2 to Amendment No.
2 to the Company's Registration
Statement on Form S-3 (File No.
33-33787) under the Securities
Act of 1933, as amended (the
"1991 Form S-3); said 1991 Form
S-3 having been filed with the
Commission on August 31, 1990
and incorporated herein by
reference, and said Amendment
No. 2 to the 1991 Form S-3
having been filed with the
Commission on March 1, 1991 and
incorporated herein by
reference.
4(r) First Supplemental Indenture,
dated as of October 15, 1991, by
and between the Company and the
Bank of Montreal Trust Company,
as Trustee, filed as Exhibit
7(2) to the Company's current
report on Form 8-K, dated
October 17, 1991 and
incorporated herein by
reference.
4(s) Indenture, dated as of February
15, 1992, by and between the
Company and the Bank of America
National Trust and Savings
Association, as Trustee, filed
as Exhibit 4.3 to Amendment No.
2 to the Company's Registration
Statement on Form S-3 (File No.
33-33787) under the Securities
Act of 1933, as amended (the
"1991 Form S-3"); said 1991 Form
S-3 having been filed with the
Commission on March 9, 1990 and
incorporated herein by
reference, and said Amendment
No. 2 to the 1991 Form S-3
having been filed with the
Commission on March 1, 1991 and
incorporated herein by
reference.
4(t) First Supplemental Indenture,
dated as of February 15, 1992,
by and between the Company and
the Bank of America National
Trust and Savings Association,
as Trustee, filed as Exhibit
4(t) to the Company's Annual
Report on Form 10-K for the year
ended May 31, 1992 and
incorporated herein by
reference.
4(u) Second Supplemental Indenture
dated as of August 15, 1992 by
and between the Company and Bank
of America National Trust and
Savings Association, as Trustee,
filed as Exhibit 4(u) to the
Company's Annual Report on Form
10-K for the year ended May 31,
1992 and incorporated herein by
reference.
4(v) Third Supplemental Indenture
dated as of April 1, 1993 by and
between the Company and Bank of
America National Trust and
Savings Association, as Trustee,
filed as Exhibit 4(v) to the
Company's Annual Report on Form
10-K for the year ended May 31,
1993 and incorporated herein by
reference.
4(w) Fourth Supplemental Indenture dated as of
March 6, 1995 by and between
the Company and Bank of America
National Trust and Savings
Association, as Trustee, filed
as Exhibit 4(w) to the
Company's Annual Report on Form
10-K for the year ended May 31,
1995, and incorporated herein
by reference.
4(x) Debenture Certificate of ECT
and Debenture Deed between
Century and ECT, dated as of
July 12, 1994.
10(a) Employment Agreement, dated
February 11, 1986, between the
Company and Leonard Tow, filed
as Exhibit 10(a) to the 1988
Form S-1 and incorporated
herein by reference.
10(a)(1) Amended Employment Agreement,
dated as of July 1, 1991,
between the Company and Leonard
Tow, filed as Exhibit 10(a)(1)
to the Company's Annual Report
on Form 10-K for the year ended
May 31, 1992 and incorporated
herein by reference.
10(a)(2) Agreement, dated July 30, 1992,
between the Company and the
Leonard and Claire Tow Life
Insurance Trust, filed as
Exhibit 10(a)(2) to the
Company's Annual Report on Form
10-K for the year ended May 31,
1992 and incorporated herein by
reference.
10(a)(3) Employment Agreement, dated as
of December 28, 1993, between
the Company and Scott N.
Schneider, filed as Exhibit
10(a) to the Company's
Quarterly report on Form 10-Q
for the quarter ended February
28, 1994 and incorporated
herein by reference.
10(a)(4) Employment Agreement, dated as
of December 28, 1993, between
the Company and Andrew Tow,
filed as Exhibit 10(b) to the
Company's Quarterly Report on
Form 10-Q for the quarter ended
February 28, 1994 and
incorporated herein by
reference.
10(a)(5) Employment Agreement, dated as
of December 28, 1993, between
the Company and Michael G.
Harris, filed as Exhibit 10(c)
to the Company's Quarterly
Report on Form 10-Q for the
quarter ended February 28, 1994
and incorporated herein by
reference.
10(a)(6) Employment Agreement, dated
December 28, 1993, between the
Company and Bernard P.
Gallagher, filed as Exhibit
10(a)(6) to the Company's
Annual Report on Form 10-K for
the year ended May 31, 1995,
and incorporated herein by
reference.
10(a)(7) Employment Agreement, dated as
of January 1, 1995, between the
Company and Daniel E. Gold.
10(b) Principal Stockholders'
Agreement, dated as of December
7, 1985, between Sentry
Insurance a Mutual Company
("Sentry"), the Company,
Leonard Tow individually and as
Trustee, and Claire Tow as
Trustee, filed as Exhibit 10(a)
to the Company's Registration
Statement on Form S-1 (No.
33-2025) under the Securities
Act of 1933, as amended, filed
with the Commission on December
9, 1985 (the "1986 Form S-1")
and incorporated herein by
reference.
10(c) Amendment to Principal
Stockholders' Agreement, dated
August 31, 1987, filed as an
Exhibit to the Company's
Current Report on Form 8-K
dated September 11, 1987 and
incorporated herein by
reference.
10(d) Lease, dated July 15, 1987,
between Locust Avenue
Associates and Century-Texas,
filed as Exhibit 10(h) to the
1988 Form S-1 and incorporated
herein by reference.
10(e) Addendum to Lease, effective
December 1, 1988, between
Locust Avenue Associates and
Century-Texas, filed as Exhibit
10(i) to the Company's Annual
Report on Form 10-K for the
year ended May 31, 1989 and
incorporated herein by
reference.
10(f) Addendum to Lease, effective
April 1, 1990, between Locust
Avenue Associates and
Century-Texas, filed as Exhibit
10(j) to the Company's Annual
Report on Form 10-K for the
year ended May 31, 1990 and
incorporated herein by
reference.
10(g) Addendum to Lease, effective
December 1, 1990, between
Locust Avenue Associates and
Century-Texas, filed as Exhibit
10(k) to the Company's Annual
Report on Form 10-K for the
year ended May 31, 1991 and
incorporated herein by
reference.
10(h) Addendum to Lease, effective
May 1, 1991, between Locust
Avenue Associates and
Century-Texas, filed as Exhibit
10(1) to the Company's Annual
Report on Form 10-K for the
year ended May 31, 1991 and
incorporated herein by
reference.
10(i) Addendum to Lease, effective
December 1, 1992, between
Locust Avenue Associates and
Century-Texas, filed as Exhibit
10(i) to the Company's Annual
Report on Form 10-K for the
year ended May 31, 1993 and
incorporated herein by
reference.
10(j) Floating Rate Subordinated
Note, dated November 5, 1981,
of Century Texas payable to The
Sentry Corporation, filed as
Exhibit 10(e) to the 1986 Form
S-1 and incorporated herein by
reference.
10(k) Floating Rate Subordinated
Note, dated March 1, 1982, of
Century Texas payable to The
Sentry Corporation, filed as
Exhibit 10(f) to the 1986 Form
S-1 and incorporated herein by
reference.
10(l) Floating Rate Subordinated
Note, dated November 13, 1987,
of Century-Texas to Sentry,
filed as Exhibit 10(k) to the
1988 Form S-1 and incorporated
herein by reference.
10(m) Joint Venture Agreement, dated
as July 26, 1974, among
American Television and
Communications Corporation,
Century Texas and Century
Venture Corporation, filed as
Exhibit 10(g) to the 1986 Form
S-1 and incorporated herein by
reference.
10(n) Third Agreement of Amendment to
the Amended and Restated Joint
Venture Agreement, dated June
18, 1987, among American
Television and Communications
Corporation, Daniels &
Associates, Inc.,
Tele-Communications, Inc.,
Comcast Corporation and Century
Southwest Cable Television,
Inc., filed as Exhibit 10(m) to
the 1988 Form S-1 and
incorporated herein by
reference.
10(o) Colorado Springs Joint Sharing
and Buy-Sell Agreement, dated
November 1, 1974, among Century
Venture Corporation, Century
Colorado Corp., American
Television and Communications
Corporation, Century Texas and
Vumore-Video Corporation of
Colorado, Inc., filed as
Exhibit 10(h) to the 1986 Form
S-1 and incorporated herein by
reference.
10(p) 1985 Stock Option Plan of the
Company, filed as Annex A to
the Company's Registration
Statement on Form S-8 (File No.
33-34387) under the Securities
Act of 1933, as amended, filed
with the Commission on April
19, 1990 and incorporated
herein by reference.
10(q) Incentive Award Plan of the
Company, filed as Annex A to
the Company's Registration
Statement on Form S-8 (File No.
33-23717) under the Securities
Act of 1933, as amended, filed
with the Commission on August
11, 1988 and incorporated
herein by reference.
10(r) 1985 Employee Stock Purchase
Plan of the Company, as
amended, filed as Exhibit 10(r)
to the Company's Annual Report
on Form 10-K for the year ended
May 31, 1995, and incorporated
herein by reference.
10(s) Non-Employee Director Stock
Option Plan of the Company,
filed as Annex A to the
Company's Registration
Statement on Form S-8 (File No.
33-34388) under the Securities
Act of 1933, as amended, filed
with the Commission on April
19, 1990 and incorporated
herein by reference.
10(t) 1985 Stock Equivalent Plan,
filed as Exhibit 10(m) to the
1986 Form S-1 and incorporated
herein by reference.
10(u) Century Retirement Investment
Plan, filed as Exhibit 10(x) to
the Company's Annual Report on
Form 10-K for the year ended
May 31, 1992 and incorporated
herein by reference.
10(v)(1) Century 1992 Management Equity
Incentive Plan, filed as
Exhibit 10(x)(1) to the
Company's Annual Report on Form
10-K for the year ended May 31,
1992 and incorporated herein by
reference.
10(v)(2) 1993 Non-Employee Directors'
Stock Option Plan of the
Company, filed as Exhibit
10(v)(2) to the Company's
Annual Report on Form 10-K for
the year ended May 31, 1995,
and incorporated herein by
reference.
10(v)(3) 1994 Stock Option Plan of the
Company, filed as Exhibit
10(v)(3) to the Company's
Annual Report on Form 10-K for
the year ended May 31, 1995,
and incorporated herein by
reference.
10(w) Interest Rate Swap Agreement,
dated as of July 18, 1986,
between Citibank, N.A. and
Century-Texas, filed as Exhibit
10(v) to Amendment No. 5 to the
1988 Form S-1 and incorporated
herein by reference.
10(x) Interest Rate Swap Agreement,
dated as of May 20, 1987,
between The First National Bank
of Chicago and Century-Texas,
filed as Exhibit 10(g) to
Amendment No. 5 to the 1988
Form S-1 and incorporated
herein by reference.
10(y) Interest Rate and Currency
Exchange Agreement, dated as of
February 14, 1990, between
Centennial Cellular Corp. and
Citibank, N.A., filed as
Exhibit 10(x) to the Company's
Annual Report on Form 10-K for
the year ended May 31, 1990 and
incorporated herein by
reference.
10(z) Interest Rate and Currency
Exchange Agreement dated
January 17, 1991 between
Century Communications Corp.
and Bankers Trust Company,
filed as Exhibit 10(aaa) to the
Company's Annual Report on Form
10-K for the year ended May 31,
1991 and incorporated herein by
reference.
10(aa) Interest Rate and Currency
Exchange Agreement dated
between Century Communications
Corp. and Security Pacific
National Bank, filed as Exhibit
10(aaaa) to the Company's
Annual Report on Form 10-K for
the year ended May 31, 1991 and
incorporated herein by
reference.
10(bb) Management Agreement and Joint
Venture Agreement (Century-ML
Venture), dated December 16,
1986, between Century Texas,
and ML Media Partners, L.P., a
Delaware limited partnership,
filed as Exhibit 10(v) to the
Company's Annual Report on Form
10-K for the year ended May 31,
1989 and incorporated herein by
reference.
10(cc) Amendment No. 1 to Management
Agreement and Joint Venture
Agreement (Century ML Venture),
dated September 21, 1987,
between Century Texas and ML
Media Partners, L.P., a
Delaware limited partnership,
filed as Exhibit 10(w) to the
Company's Annual Report on Form
10-K for the year ended May 31,
1989 and incorporated herein by
reference.
10(dd) Management Agreement and Joint
Venture Agreement (Century-ML
Radio Venture), dated as of
February 15, 1989, between
Century Texas and ML Media
Partners, L.P., a Delaware
limited partnership, filed as
Exhibit 10(x) to the Company's
Annual Report on Form 10-K for
the year ended May 31, 1989 and
incorporated herein by
reference.
10(ee) Plan and Agreement of Merger,
dated August 2, 1991, by and
among Century Cellular Holding
Corp., Century Cellular Corp.,
Citizens Utilities Company and
Citizens Cellular Corp.,
together with exhibits,
including Management Agreement,
Conflicts/Non-Compete
Agreement, Stock Transfer
Agreement and Registration
Rights Agreement, filed as
Exhibit 10(cc) to the Company's
Annual Report on Form 10-K for
the year ended May 31, 1991 and
incorporated herein by
reference.
10(ff) Credit Agreement, dated as of
August 4, 1995, by and among
CCC-I, Inc., Pullman TV Cable
Co., Inc., Kootenai Cable,
Inc., Citibank N.A., as agent,
and each of the banks parties
thereto. The Company hereby
agrees to furnish to the
Securities Exchange Commission,
upon its request, a copy of
each instrument omitted
pursuant to Item 601(b)(4)(iii)
of Regulation S-K.
10(gg) Credit Agreement, dated as of
June 30, 1994, by and among CCC-
II, Inc., Citibank N.A. as
managing agent, and each of the
banks parties thereto, filed as
Exhibit 10 to the Company's
report on Form 8-K dated July
25, 1994 and incorporated
herein by reference. The
Company hereby agrees to
furnish to the Securities
Exchange Commission, upon its
request, a copy of each
instrument omitted pursuant to
Item 601(b)(4)(iii) of
Regulation S-K.
10(hh) Terms Agreement, dated February
27, 1995, between Century
Communications Corp. and
Merrill, Lynch, Pierce, Fenner
& Smith Incorporated, filed as
Exhibit 10(hh) to the Company's
Annual Report on Form 10-K for
the year ended May 31, 1991 and
incorporated herein by
reference.
10(ii) Franchise Agreement, dated as
of July 8, 1994, between
Australis and ECT, together
with amending letters.
10(jj) Optus Customer Service
Agreement, dated as of October
14, 1994, between Optus,
Australis and Continental
Century Pay TV Pty Limited, a
New South Wales corporation
("CCPTV").
10(kk) Subscription Television
Distribution Agreement between
CCPTV and Australis, together
with the amending letter from
Australis to CCPTV.
10(ll) Infrastructure Utilization
Agreement, dated as of June 13,
1995, between Australis, New
World Telecommunications Pty
Limited, a New South Wales
corporation, ECT and CCPTV.
10(mm) Advisory and Oversight
Agreement, between Century
Australia Pty Limited, an
Australian corporation and
Century Nevada.
10(nn) Advisory and Technical Services
Agreement, between ECT and
Century Nevada.
11 Computation of loss per common
share.
21 List of subsidiaries of the
Company.
23.1 Consent of Deloitte & Touche,
LLP.
Exhibit 10(kk)
CONTINENTAL CENTURY PAY TV PTY LIMITED
ACN 005 546 272
AND
AUSTRALIS MEDIA LIMITED
ACN 059 741 178
SUBSCRIPTION TELEVISION DISTRIBUTION AGREEMENT
Sly & Walgall
Goldfields House
Circular Quay
SYDNEY NSW
21049:RVM:120495
AGREEMENT made
BETWEEN: CONTINENTAL CENTURY PAY TV PTY LIMITED (ACN 003
546 272) an Australian corporation having its
registered office at Level 7, 55 Grafton Street
Woollahra in the State of New South Wales
AND: AUSTRALIS MEDIA LIMITED (ACN 059 741 178) an
Australian corporation having its registered
office at 100 Bulwara Road Pyrmont in the State of
New South Wales.
INTRODUCTION:
CCPTY carries on business as a broadcaster of
subscription television to subscribers and is the
holder of the A Satellite Licence. Under that licence
it will shortly commence broadcast of a 4 channel
service.
Australis has facilities for the distribution of
subscription television services via MDS, both directly
to subscribers and through a franchise network.
CCPTV wishes to appoint Australis to distribute by MDS
its 4 channel service in the Distribution Areas and the
Franchise Areas on the terms of this Agreement.
IT IS AGREED:
Definitions
In this Agreement, unless the context requires
otherwise, the following words and expressions (whether
commencing with capital letters or not) have the
following meanings:
"Agreement" means this agreement between CCPTV and
Australis;
"Australis" means Australis Media Limited and its
permitted assigns;
"A Licence" means the satellite licence held by
CCPTV issued under the BSA;
"broadcast" means delivery of subscription
television programmes only direct to persons
having equipment appropriate for receiving those
programmes by MDS delivery;
"BSA" means the Broadcasting Services Act 1992;
"CCPTV" means Continental Century Pay TV Pty Ltd
and its permitted assigns;
"Co-operation Agreement" means the agreement dated
14 January 1995 between Australis and New World
Telecommunications Pty Ltd and CCPTV and
Continental Century Pty Ltd and released from
escrow on 24 March 1995;
"Confidential Agreement" means any information
concerning, relating to or used in connection with
any Services or the business of CCPTV, its parent
and subsidiaries and the business of Australis and
its subsidiaries, including information of every
kind concerning or relating to customers,
Subscribers, suppliers, business transactions,
business methods, accounting, marketing
techniques, technical matters, technology, forms,
charges, financial affairs, trade secrets or know
how;
"Distribution Areas" means the whole of Australia;
"Dollars" and "$A" means Australian dollars;
"Force Majeure" means a circumstance beyond the
reasonable control of a party which occurs without
the fault or negligence of the party affected and
includes civil disturbance or commotion, strikes,
acts of God, war, blockade, revolution, riot,
earthquake, flood, storm, tempest, or other
natural calamities, technology or equipment
failure or malfunction, prolonged atmospheric
interference with transmission, non-performance of
any obligations by any third party and legal or
governmental enactment, order, requirement or
regulation;
"Franchisees" means East Coast Pay Television Pty
Ltd., CTV Pty Ltd and STV Pty Ltd; being the
corporations which hold and/or any additional
persons which may hereafter hold franchises from
Australis or any related body corporate of
Australis for the distribution of subscription
television services in the areas covered by those
franchises.
"Franchise Areas" means the areas covered by the
franchises granted by Australis to the
Franchisees;
"MDS" has the same meaning as "MDS system" in the
BSA;
"Services" means the 4 A licence subscription
television channels of programming produced for
broadcast by satellite delivery by or on behalf of
CCPTV; presently being the 4 channels of
programming more particularly described in
Schedule 1;
"Subscribers" means person who have a current
agreement with Australis or any of its related
bodies corporate or a Franchisee or any of its
related bodies corporate to take the Services by
MDS, whether as part of a package offered by
Australis or the Franchisee or otherwise;
"$US" means United States dollars; and
"Year" means financial year.
In this Agreement:
The singular includes the plural and the plural
includes the singular.
A reference to a gender includes a reference to
each other gender.
A reference to a person includes a reference to a
firm, corporation or other corporate body.
A reference to a statute, regulation, or provision
of a statute or regulation includes a reference to
that statute, regulation or provision as amended
or re-enacted from time to time.
A reference to writing includes a reference to
printing, typing and other methods of producing
words in a visible form.
Where a word or expression is given a particular
meaning, other parts of speech and grammatical
forms of that word or expression have
corresponding meanings.
Headings are for ease of reference and do not
affect the construction of this Agreement.
References to related bodies corporate,
subsidiaries and holding companies have the same
meaning as in the Corporations Law.
Appointment of Australis
Subject to the terms and conditions contained in this
Agreement:
CCPTY appoints Australis as a distributor of the
Services by means of MDS delivery in the
Distribution Areas and confers on Australis the
right to sub-contract and licence distribution to
the Franchisees for broadcast over MDS in the
Franchise Areas;
Australis accepts such appointment and will, in
the manner required in this Agreement, broadcast
the Services, provided by CCPTV in the manner
provided in this Agreement, to Subscribers in the
Distribution Areas by MDS as and when the Services
are transmitted by CCPTV by satellite or other
means of delivery as determined by CCPTV; and
Australis will, to the extent it is contractually
entitled under the franchises with the
Franchisees, ensure that the Franchisees broadcast
the Services, provided by CCPTV in the manner
provided in this Agreement, to Subscribers in the
areas covered by their respective franchises as
and when the Services are transmitted by CCPTV by
satellite or other means of delivery as determined
by CCPTV. All future franchises and renewals of
franchises (other than pursuant to exercise of
presently existing options) are to contain
provisions that mandate carriage.
The rights conferred by clause 2.1(1) will be exclusive
rights for MDS delivery in the Distribution Areas and
the Franchise Areas.
Broadcast Rights
Australis may only broadcast the Services by MDS
delivery to and for reception by Subscribers in the
Distribution Areas and the Franchise Areas.
Australis many not, nor may Australis authorise or
permit any of the Franchisees, to, broadcast, relay or
transmit the Services or any part of the Services to
any person otherwise than as permitted by this
Agreement or consented to by CCPTV in writing.
Australis may not cause, authorise or permit the
duplication or recording of any part of the Services,
or its sound track other than as permitted by this
agreement (including clause 10.3(4)(a)), or consented
to by CCPTV in writing.
Australis many not, nor may Australis authorise or
permit any of the Franchisee, to use the Services, any
part of the Services or the sound track otherwise than
in accordance with this Agreement or consented by CCPTV
in writing.
CCPTV reserves to itself all rights now known or
hereafter created in the Services not specifically
granted to Australis under this Agreement, including,
but not limited to:
the right to telecast film, video and computer
generated clips from the Services;
all pay and subscription and other television
rights;
all theatrical and non-theatrical rights; and
all re-make and sequel rights
on the basis that these rights or any of them may be
exercised and exploited by CCPTV throughout Australia
and elsewhere concurrently with and during the term of
this Agreement (and after), freely and without
limitation or restriction and without obligation of any
kind to Australis. CCPTV will notify Australis of any
exercise or exploitation of such rights from time to
time.
Australis may price the Services to the public as it
thinks fit but will price the Services competitively.
Term
This Agreement commences on 1 April 1995 and continues
in force until the first to occur of the following:
the date being 10 years from the date of
commencement; or
the date on which the Agreement is terminated for
cause under clause 19.
CCPTV has an option to renew this agreement for a term
of 5 years; such option being on the same terms and
conditions as this Agreement (other than this clause
and clause 4.3).
CCPTV may exercise the option contained in clause 4.2
by notice in writing to Australis at any time during
the term of the Agreement provided the notice is given
not less than 6 months from the date of expiry of the
term of the Agreement.
Programming
CCPTV will determine and advise Australis, from time to
time, of the titles and programme content it determines
will constitute the Services, giving Australis no less
notice of its programme titles and general information
for promotional purposes of its programme content than
Australis generally receives from other suppliers of
full channel services. It is expected that this notice
will normally be 2 months in advance of broadcast.
CCPTV may change the title of the Services and of any
programme forming part of the Services, as and when it
thinks fit, but having regard to the requirements of
advance notice to consumers, which is normally expected
to be 2 months.
In determining the content and title of any programmes
and of any programming changes, CCPTV will have regard
to lead times for appropriate promotion and programme
publishing.
If any Force Majeure results in the failure of CCPTV to
deliver a programme previously notified to Australis,
CCPTV may deliver substitute programming of its
choosing unless Force Majeure precludes delivery of
substitute programming. CCPTV will give Australis as
much notice as possible of any substitute programming.
CCPTV may pre-empt any scheduled programme and
substitute broadcast matter which it deems, acting
reasonably, to be of local or national importance in
which case it will re-schedule the pre-empted
programme.
CCPTV may withdraw any programme if it determines,
acting reasonably, that the transmission of that
programme might:
infringe the rights of other or violate any law,
court order, regulation or ruling of a government
agency;
constitute or aid in a breach of the use permitted
under this Agreement;
affect adversely any licence held by CCPTV; or
subject CCPTV to any liability.
In the event of any withdrawal, CCPTV will use its best
endeavours to deliver substitute programming of its
choosing. CCPTV will give Australis as much notice as
reasonably possible of any such substitution.
Promotion
CCPTV will undertake a reasonable level of promotion of
its Services, tasking into account that the Services
compete with free to air competitors and other
subscription television operators and will do so having
regard to and taking into account the nature and types
of promotion of the Services undertaken by Australis.
Each party will devote its best endeavours towards
increasing the number of subscribers for the Services
in the Distribution Areas and the Franchise Areas.
Australis will promote and advertise the Services in a
manner and to an extent no less favourable than is
reasonable having regard to the level of promotion and
advertising Australis undertakes for any other
subscription channel or service it promotes (excluding
its movie and sports channel programming).
CCPTV expressly authorises Australis to broadcast film
and video clips from the Services, including sound
tracks, for promotional purposes only in accordance
with clause 6.3, subject to such rights and limitations
as may apply.
If Australis decides to offer to subscribers, channels
of programming in packages which are comprised of more
than the 4 B licence channels of programming, the
Services will be part of the package.
There will be no "buy through" for any person to buy
another channel of programming before taking the
Services.
Australis agrees that, in advertising the Services;
it will comply with such reasonable general
advertising guidelines as CCPTV may issue;
it will list the Services in any guide publicising
services offered by Australis (and, with respect
to guides published by or on behalf of
Franchisees, will use its best endeavious to have
the Service listed in those guides) and where the
guides list entire programming schedules the
entire programming schedules for the Services will
be listed;
it will use its best endeavours to have the entire
programming schedules for the Services listed in
all media which list the entire programming
schedules for any services offered by Australis or
the Franchisees;
it will not give any warranty, or make any
representations with respect to the Services or
CCPTV other than those expressly authorised by
CCPTV;
any such advertising will not be misleading or
deceptive or constitute an express or implied
endorsement of any products, services or a
sponsors; and
it will not advertise or announce any programme or
Service the title to which has been changed by
CCPTV other than under the new title.
Australis may use CCPTV trade marks, logos and business
names in all promotion of the Services, in any manner
approved by CCPTV; which approval will not be
unreasonably withheld.
The parties will negotiate in good faith to conclude an
arrangement covering the sale of advertising which is
intended to take effect when CCPTV is able to offer
advertising on the Services.
The parties agree that the Services shall be badged,
advertised and promoted by Australis and by the
Franchisees as part of the "Galaxy" package of services
and not as part of any other package of services for
MDS delivery. When advertising and promoting the
services for delivery by MDS, CCPTV will not advertise
or promote them in a manner inconsistent with the
preceding Clause.
Fees
From 1 June 1995 (and as long as Australis receives no
subscription fees for the period prior to 1 June 1995
(based on commencement of Services in full by CCPTV
before 1 May 1995)) and thereafter during the term of
this Agreement, Australis will pay to CCPTV, without
deduction, fees calculated in accordance with Schedule
2.
Within 45 days of the end of each calendar month during
the term of this Agreement and of the date of
termination, Australis will provide the following
information to CCPTV:
the number of subscribers who subscribers for the
Services during the relevant monthly period with
Australis or any Franchisee; and
the subscription fees paid or payable by those
subscribers for the Services;
and will remit the fees to CCPTV with that information.
Australis will:
keep accurate and proper account and records in
relation to its and the Franchisees' subscribers
and receipts paid or due from those subscribers,
in such form as will enable a full and adequate
audit to be undertaken;
procure an annual audit by a qualified auditor of
all accounts, records and documents to be kept in
accordance with this Agreement within 6 months of
the end of each financial year during the term of
this Agreement (or such shorter period as is
required by law) and within 6 months of the
termination of this Agreement;
make available to the appointed auditor or any
other qualified auditor for the purpose of sub-
clause (2) at all reasonable times all such
accounts, records and documents and such
information as the auditor may reasonably require
to assets the accounts records and documents;
provide CCPTV with a copy of the report of the
auditor; and
allow an auditor appointed by CCPTV reasonable
access to all such accounts, records and documents
if CCPTV wishes to have the work of the auditor
appointed by Australis verified and provide to any
such auditor such information as the auditor may
reasonably require to assess the accounts records
and documents; such right to continue until 12
months after the termination of the Agreement or
completion of any audit commenced within that
time.
Australis will pay CCPTV interest at the rate to 1.5%
per month for each month or part thereof that Australis
delays in paying fees in accordance with clause 7.1
unless and to the extent only that payment is delayed
by legal or governmental enactment, order, requirement
or regulation.
If Force Majeure results in a failure to deliver the
Services for a period of not less than 7 days, a
reasonable adjustment in the fee will be made in
accordance with any reasonable adjustment made by
Australis or a Franchisee to affected Subscribers.
If CCPTV suspends or otherwise fails to deliver any of
the Services for a period not less than 7 days (other
than for Force Majeure), a reasonable adjustment in the
fee will be made in accordance with any reasonable
adjustment made by Australis or a Franchisee to
affected Subscribers.
Programme Rights
CCPTV warrants that:
it has the right to broadcast the programmes,
including sound tracks, transmitted as part of the
Services, received from its applicable suppliers
and to permit Australis and the Franchisees to re-
broadcast those programmes, including sound
tracks, in accordance with this Agreement;
broadcast of those programmes in accordance with
and subject to the provisions of this Agreement
will not violate the right of others;
performing and other rights in the music contained
in the Services are either
controlled by a performing rights society
having jurisdiction (including performing
right to music which was created by CCPTV but
which now resides in a performing rights
society) or by the copyright proprietor; or
in the public domain; or
CCPTV has a right to use the music to the
extent necessary to permit delivery of the
Services to Australis in accordance with this
Agreement; and
the programmes broadcast as part of the Services
will comply with all applicable regulatory and
government administrative requirements including
under the BSA, with respect to content.
Australis and the Franchisees will, at their sole cost,
secure any performing and other rights and licences
necessary to broadcast and carry music contained in the
programmes forming part of the Services which do not
fall into subdivisions (b) or (c) of clause 8.1(3) (and
pay the licence fees) and Australis indemnifies CCPTV
from any liability arising if they fail to do so.
Where CCPTV has secured rights of the type referred to
in clause 8.1(3) which extend to permitting broadcast
by Australis and the Franchisees to Subscribers, CCPTV
will inform Australis of that position.
Australis will notify CCPTV immediately of any claim
made against it for any alleged breach of the rights of
any other person resulting from any broadcast made in
accordance with this Agreement.
CCPTV may defend at its cost or otherwise resolve any
such claim in such manner as it thinks fits in the name
of Australis. Australis will co-operate in any such
defence at the reasonable request of CCPTV.
CCPTV will indemnify Australis against all claims made
against it by reason of any breach by CCPTV of the
warranty contained in clause 8.1 provided:
Australis complies with clauses 8.2, 8.4 and 8.5;
and
Australis does not broadcast or continue to
broadcast any relevant programme after receipt of
a claim without the prior consent of CCPTV.
Separation of Business and Confidentially
Having regard to the fact that, in addition to the
business of Australis relevant to this Agreement, a
subsidiary of Australis competes with CCPTV in delivery
of subscription television services which are also
broadcast by Australis and the Franchisees to
subscribers by MDS delivery, the parties acknowledge
that it is a matter of central importance to CCPTV that
Australis keep its broadcast and franchise business
entirely separate from the programming of the B
Licences satellite subscription television business of
its subsidiary, New World Telecommunications Pty Ltd.
Australis will:
ensure that its MDS broadcast and franchise
business is kept separate from the programming of
the B Licence satellite subscription television
business of its subsidiary, New World
Telecommunications Pty Ltd. at all times during
the term of this Agreement;
do all things necessary to keep information
concerning CCPtV and its business confidential to
those persons engaged in the performance of this
Agreement including ensuring that such persons are
aware of and agree to comply with the requirements
of this clause;
not use any such information for any purpose other
than the performance of this Agreement; and
comply with all reasonable directions given by
CCPTV for the protections of confidential
information.
Each party will keep all Confidential Information of
the other party confidential but nothing in this clause
prevents that party disclosing information:
in any manner required by law or in accordance
with the requirements of a government agency or
any stock exchange on which Australis has its
securities listed or registered;
in confidence to that party's bankers,
accountants, solicitors or other advisers for the
purpose only of obtaining advice or in respect to
their work for that party;
in respect of a Subscriber, to that Subscriber;
to Franchisees but only to the extent necessary to
ensure that the Franchisee properly performs its
obligations in relation to the subject matter of
this Agreement; or
which is already in the public domain other than
through breach of this Agreement.
Service Obligations
CCPTV will:
ensure that the Services are made available,
subject to this Agreement, as scheduled, by means
of broadcast quality signal by satellite or other
means of delivery it may select, in each case,
within the relevant satellite footprint; and
taking the channels of programming in aggregate,
provide popular programming with a broad mix of
content tailored for Australian audiences; and
at all times diligently carry on business with all
due care and skill, vigorously and competitively.
During the term of this Agreement Australis will, and
will exercise its rights to ensure that the Franchisees
at all times diligently carry on business with all due
care and skill vigorously and competitively.
Australis will itself and will use its best endeavours
including exercising its rights to ensure that the
Franchisees;
provide the Services to all Subscribers in the
areas served by their MDS transmissions;
promptly install and maintain the necessary
equipment to ensure that Subscribers receive the
Services and that Australis has proper equipment
to receive the signals of the Services;
include programme and promotional information
regarding the Services in program guides published
by them; on the basis that information concerning
the Services will be promoted on no less
favourable terms than any other programmes or
services promoted in the guide having regard to
the nature of the Services, noting however that
the movie and sports channel programming will be
more extensively promoted;
at all times transmit the Services to subscribers
in their entirely without interruption, on the
dates and at the times scheduled by CCPTV,
provided that:
"time shifting" to accommodate differential
time zone will be allowed subject to the
reasonable approval of CCPTV; and
it will not be required to do so if and to
the extent that, based on written opinion by
independent counsel, Australis believes that
the broadcast of a programme will, on the
balance of probabilities, violate any law,
court order, regulation or filing of a
government agency or affect adversely any
licence held by Australis or any subsidiary
(but if independent counsel engaged by CCPTV
disagrees, the issue will be referred to an
independent counsel selected by both counsel
and the decision of that counsel will
prevail); and
subject to CCPTV's delivery of signal in
accordance with clause 10.1(1), at all times
ensure that all broadcasts of Services originated
by Australis or other Franchisee are of broadcast
quality.
The parties acknowledge that, the Australian Capital
Territory, the number of MDS licences held by Australis
may be insufficient to allow broadcasting of all of the
A Licence, B Licence and C Licence channels of
programming. If, in such circumstances, Australis
elects to carry both of the C Licence channels of
programming it may, by 2 months advance notice in
writing to CCPTV, elect not to broadcast one of CCPTV's
channels of programming as selected by CCPTV:
for the period only that Australis elects to
broadcast both C Licence channels of programming
or
until it is able to broadcast all channels,
including the suspended A Licence channel of
programming
whichever first occurs. In such cast Australis will obtain
CCPTV's prior consent to any notification to subscribers of
the programming change.
Australis will not and will take all reasonable steps
to ensure that the Franchisees do not:
at any time refuse to procure any particular
subscriber (except for justifiable commercial
reasons) or subscribers for the Services in the
Distribution Areas and the Franchise Areas
respectively; or
at any time add to, edit or in any way interfere
with the Services in the form in which they are
provided by CCPTV unless to ensure compliance with
any appliance law.
Insurance & Indemnities
Each party will effect its own insurances and, except
as specifically provided in this Agreement, bear its
own risks in relation to any matter to be done or not
done pursuant to this Agreement.
Force Majeure
Notwithstanding any other clause in this Agreement, the
obligations of a party imposed by this Agreement and
any time requirements under this Agreement shall be
suspended during the time and to the extent that party
is prevented from or delayed in complying with the
obligation by Force Majeure.
Each party will, on becoming aware of Force Majeure
likely to prevent or delay its compliance with its
obligations under this Agreement, immediately inform
the other party and use its best endeavours to remedy
the Force Majeure or to procure alternative means
reasonably available to enable performance of this
Agreement to continue as if no Force Majeure had
occurred.
Further Requirements
The parties will forthwith lodge a Notification under
the Trade Practices act 1974 and do all things
reasonably necessary to ensure that the Notification
remains in force and effect for the full term of this
Agreement, including, if necessary, exercising all
appeal and review rights.
Each party will do all acts and things and execute all
documents as are from time to time reasonably required
for the purpose of or to give effect to this Agreement.
Australis will use its best endeavours to ensure that
the Franchisees are aware of and comply, and in all
future agreements and renewals of franchises (other
than pursuant to presently existing options) will
contractually obligate Franchisees to comply, with the
obligations imposed on Australis on the basis that the
obligations placed on Australis under this Agreement
are to apply equally to the Franchisees with respect to
their broadcast of the Services.
Non Partnership
This Agreement does not create or evidence a
partnership or joint venture between the parties.
Variation & Confirmation
The variation or waiver of a provision of this
Agreement, or a party's consent to a departure from a
provision by another party, will be ineffective unless
in writing, signed by the parties.
Nothing in this Agreement modifies the right or
obligations of the parties under the Co-operation
Agreement, which remains in effect as between the
original parties to that agreement only according to
its terms.
Severability
Any provision of this Agreement which is illegal, void
by law, or unenforceable by or contrary to law will be
ineffective to the extent only of that illegality,
voidness by law, unenforceability or contrariness to
law without invalidating the remaining provisions.
In such event, the parties will negotiate in good faith
a new provision which is not illegal, void by law, or
unenforceable by or contrary to law and which provides
and would provide CCPTV and Australis with the same or
equivalent benefits that are provided for by the
provision which is deemed illegal, void or
unenforceable.
Assignment and Subcontracting
Subject to clause 17.2, this Agreement is personal to
Australis and Australis may not assign this Agreement,
its interest in the Subject matter of this Agreement or
any right under this Agreement without the prior
written agreement of CCPTV.
Australis may at any time during the term of this
Agreement, assign or novate its rights and delegate its
obligations under this agreement to Galaxy Network
International Pty Ltd (ACN 067 041 383) provided that
it gives not less than 1 month's notice in writing to
CCPTV and provides, with that notice, the following to
the reasonable satisfaction of CCPTV:
evidence that the financial standing of Galaxy
Network International Pty Ltd is not less than the
financial standing of Australis, or a parent
guarantee in a form acceptable to CCPTV;
evidence that Galaxy Network International Pty Ltd
has all necessary rights to broadcast the Services
in accordance with this Agreement for its full
term and the term of any option (including rights
to the MDS facilities);
evidence that the franchises between Australis and
the Franchisees have all been validly assigned to
Galaxy Network International Pty Ltd; and
a deed by which Galaxy Network International Pty
Ltd has, in a form acceptable to CCPTV, covenanted
to be bound by the Co-operation Agreement as if it
were an original party to that Agreement having
the same rights and obligations as Australis.
Austalis will not subcontract the performance of its
obligations under this Agreement except to Franchisees
in relation to Franchise Areas other than, in the
ordinary course of business to reasonably qualified
contractors over which Australis maintains proper
supervision.
No subcontractor or assignment shall in any way receive
Australis from the full responsibility for the
performance of this Agreement or its obligations or
liabilities thereunder.
CCPTV may assign this Agreement with the prior written
notice to Australis, provided the assignee is
reasonably capable of performing CCPTV's obligations
under this Agreement.
The right and obligations of either party under this
Agreement may be exercised or assumed by any related
body corporate of that party but on the basis that the
party will remain personally responsible for ensuring
full and complete compliance with this Agreement by or
on its behalf.
Mediation of Disputes
Any dispute, controversy or claim arising out of or in
connection with this agreement will be settled by
mediation administered by the Australian Commercial
Disputes Centre and the following provisions apply:
the mediation will be conducted in Sydney;
the mediator will be selected by the parties from
a panel of mediators nominated by the Australian
Commercial Disputes Centre and, failing agreement
within 14 days as to a mediator, by the Secretary-
General for the time being of the Centre; and
each party will be entitled to be represented by a
duly qualified legal practitioner or other
representative in addition to executives of the
party.
Termination
This Agreement may terminate immediately by CCPTV
without notice if:
a receiver or a receiver and manager of Australis
or the assets of Australis, is appointed;
Australis makes an assignment for the benefit of
its creditors, or enters into any composition or
scheme of arrangement with its creditors or stops
or suspends payments to its credits or states its
intention to do so;
Australis becomes insolvent under administration;
Australis ceases to carry on the business of
broadcasting subscription television services by
MDS in the Distribution Areas or sufficient part
thereof to materially affect the coverage by MDS
of the Services in accordance with this Agreement;
licences held or sued by Australis which have a
material effect on its ability to perform its
obligations under this Agreement, issued under the
BSA or the Radiocommunications Act, are cancelled
or suspended for a period in excess of 2 months;
or
any of the agreements between Australis and the
Franchisees are terminated or amended in a manner
which, in the reasonable opinion of CCPTV,
adversely affects the ability of Australis to
ensure compliance with the terms of this
Agreement.
This Agreement may terminate immediately by Australis
without notice if:
a receiver or a receiver and manager of CCPTV or
the assets of CCPTV, is appointed;
CCPTV makes an assignment for the benefit of its
creditors, or enters into any composition or
scheme of arrangement with its creditors or stops
or suspends payment to it creditors or states its
intention to do so;
CCPTV becomes insolvent under administration;
CCPTV ceases to deliver Services for more than 2
consecutive months; or
CCPTV's entitlement to deliver Services to
Australis is suspended for a period in excess of 2
consecutive months or cancelled by final order or
any governmental authority.
Either party may terminate this Agreement for wilful
and persistent breach by the other party of its
obligations under this Agreement.
Australis will, on receipt of notice by CCPTV
terminating this Agreement, or on Australis terminating
the Agreement, within 5 working days, advise
Subscribers, in a form and manner acceptable to CCPTV
that the Services are no longer available through it
and provide to those Subscribers such materials as are
reasonably requested by CCPTV and supplied to Australis
by CCPTV at its cost.
Notices
A notice or other communications required to permitted
to be given by a party to another shall be in writing
and:
delivered personally;
sent to an address in Australia by security post
or certified mail, postage prepaid; or
sent by facsimile transmission, to the address for
service, or facsimile number described below.
A notice or other communication is deemed given if:
personally delivered, upon delivery;
mailed to an address in Australia, on actual
delivery to the addressee, as evidenced by
Australia Post documentation; or
sent by facsimile, on the next business day after
being sent if following transmission the sender
receives a transmission confirmation report or if
the sender's machine is not so equipped to issue a
transmission confirmation report then upon the
sender receiving acknowledgment or receipt.
A party who receives a notice or other communication by
facsimile shall forthwith acknowledge receipt to the
sender.
Each party's address for service is:
in the case of CCPTV:
Name: Continental Century Pay TV Pty Limited
Address: Level 7
55 Grafton Street
BONDI JUNCTION NSW
Attention: Andrew Tow
Facsimile: 02-3871970
and in the case of Australis:
Name: Australis Media Limited
Address: 100 Bulwara Road
PYRMONT NSW
Attention: Neil Gamble
Facsimile: 02 3257339
A party may change its address for service by giving
written notice of that change to the other party.
Governing Law
The law of this Agreement is the law of New South Wales
and the Commonwealth of Australia.
The parties submit themselves to the jurisdiction of
the Court of South Wales and the Commonwealth of
Australia for all proceedings arising from this
Agreement.
SIGNED FOR AND ON BEHALF OF )
CONTINENTAL CENTURY )
PAY TV PTY LIMITED BY )
ANDREW TOWN who warrants that he )
has authority to bind the Company )
in the presence of: )
SIGNED FOR AND ON BEHALF OF )
AUSTRALIS MEDIA LIMITED )
BY RODNEY PRICE, CHAIRMAN )
who warrants that he )
has authority to bind the Company )
in the presence of )
SCHEDULE 1
CHANNELS OF PROGRAMMING
First Channel
Name
Arena
Description:
A mixture of Australasian, European and North American
programmes including without limitation situation
comedies, series, mini-series, game shows, adventure
stories and movies (primarily in English).
Second Channel
Name
Max or Classic Max
Description:
Max is produced for children and is a mixture of
cartoons, educational programmes, game shows and
children's drama to be viewed during the daylight
hours.
Classic Max is produced for families and is a mixture
of family entertainment, series and other favourite
classic British, Australian and North American
programmes.
Third Channel
Name
Quest
Description:
An international mixture of documentaries, adventure,
history and lifestyle programmes.
Fourth Channel
Name
Red
Description:
New music videos, concerts and related promotions for
both the Australian music industry and the general
public.
General
Arena and Max will be in English other than as noted in
relation to Arena.
In the case of Quest and Red, no less than 95% of the
total air time per day on each channel will be in
English.
The channels will operate 24 hours per day 365 days per
year.
CCPTV may, by notice to Australis, vary the types of
channels referred to in this Schedule.
SCHEDULE 2
FEES
1 Period 1 $US3.15 per Subscriber per month
(Period to 30 November 1997)
2 Period 2 $US4.15 + 120% of any increase
(1 December 1997 to internal costs + 110% of any
30 November 1998) increase of
external costs over launch
levels per Subscriber per
month ("Period 2 Rate")
3 Period 3 Period 2 Rate + 120% of any
(1 December 1998 to increase in internal costs +
30 November 1999) 110% of any increase of
external costs over Period 2
per Subscriber per month
("Period 3 Rate")
4 Period Period 3 Rate + 120% of any
(1 December 1999 to increase in internal costs +
30 November 2000) 110% of any increase of
external costs over Period 3
per Subscriber per month
("Period 4 Rate")
5 Each 12 month period The per Subscriber rate for the
thereafter prior 12 month period + 120% of
any increase in internal costs
+ 110% of any increase of
external costs over the per
Subscriber rate for the prior
12 month period per Subscriber
per month.
PROVIDED that:
(1) the following non-cumulative volume discounts are to
apply to any month if the number of Subscribers in that
month reaches the levels as listed below:
250,000 2%
500,000 4%
750,000 6%
1,000,000 8%
1,250,000 10%
1,500,000 12%
1,750,000 14%
2,000,000 16%
2,250,000 18%
2,500,000 or over 20%
(2) The rate card prices specified above will be decreased
from time to time by the amount of any decreases in the
actual cost to CCPTV of the individual channels of
programming forming part of the Services. Australis
has the right to verify decreases and increases by
audit by an independent auditor.
Definitions
(1) "Subscriber per month" means the number determined by
the following formula:
Subscriber = (A+B)/2
Where:
A means the number of Subscribers on the first day of
the current month
B means the number of Subscribers on the last day of
the current month.
(2) Subscribers include equivalent subscribers which, in
the instance where bulk rates are paid, shall mean the
quotient derived by dividing the bulk rate by the then
applicable individual subscriber rate.
(3) Where a fee is charged for additional outlets, the
additional outlets will be counted as subscribers on a
pro rata basis based upon the revenue derived from such
outlets divided by the then applicable individual
subscriber rate.
Exhibit 10(ll)
Final as executed
BETWEEN:
AUSTRALIS MEDIA LIMITED
(ACN 059 741 178)
AND
NEW WORLD TELECOMMUNICATIONS PTY LIMITED
(ACN 059 915 936)
(together referred to as "Australis")
AND:
EAST COAST PAY TELEVISION PTY LIMITED
(ACN 003 546 272)
AND
CONTINENTAL CENTURY PAY TELEVISION PTY LIMITED
(ACN 059 914 840)
(together referred to as "CC")
INFRASTRUCTURE UTILISATION AGREEMENT
HARPER WATSON
Corporate and Commercial Lawyers
Level 10 15 Castlereagh Street
Sydney NSW 2000
Telephone: 231 5755
Fax: 231 5231
DX: 530 Sydney
INFRASTRUCTURE UTILISATION AGREEMENT
THIS INFRASTRUCTURE UTILISATION AGREEMENT (the "Agreement")
is made as of this day of , 1995.
BETWEEN: AUSTRALIS MEDIA LIMITED (ACN 059 741 178) with its
registered address at 100 Bulwara Road, Pyrmont,
New South Wales ("AML") AND NEW WORLD
TELECOMMUNICATIONS PTY LIMITED (ACN 059 915 936)
with its registered address at 100 Bulwara Road,
Pyrmont, New South Wales (which parties are
together referred to as "Australis")
AND: EAST COAST PAY TELEVISION PTY LIMITED (ACN
003 546 272) with its registered address at Level
7, 55 Grafton Street, Bondi Junction, New South
Wales ("ECT") AND CONTINENTAL CENTURY PAY TV PTY
LIMITED (ACN 059 914 840) with its registered
address at Level 20, Royal Exchange Building, 56
Pitt Street, Sydney, New South Wales (which
parties are together referred to as "CC")
RECITALS
Section 116 of the Act permits the holders of the A Licence and the B
Licence to cooperate with each other in respect of the following
specific matters:
A subscriber management system;
Marketing;
Facilities for transmission; and
The operation of disabling devices.
Australis and CC wish to record the terms of their cooperation in
respect of these matters in this Agreement.
IT IS AGREED as follows:
APPOINTMENT
Effective upon the signing of this Agreement, CC hereby designates
Australis and Australis hereby accept the designation as the exclusive
consultant/agent to CC to procure, provide and perform the Services upon
the terms and conditions herein set forth.
TERM AND TERRITORY OF THE AGREEMENT
This Agreement shall continue for a period of ninety-nine (99)
years commencing immediately upon the signing of this Agreement.
For the avoidance of doubt, neither party shall be entitled to
terminate this Agreement, even by the giving of reasonable
notice.
This Agreement shall apply throughout the Commonwealth of
Australia (including, without limitation, those territories in
the Commonwealth of Australia covered by franchises entered into
by Australis whether now or hereinafter obtained).
DUTIES AND UNDERTAKINGS OF AUSTRALIS
Australis shall:
Provide where technically feasible carriage of the four (4)
A Licence channels and shall, in pursuance of its
obligations under this Agreement, make available and
maintain the means for the delivery of the four (4) B
Licence channels and any licensed channels hereafter
controlled by the Australis Group over MDS or by any other
means of delivery controlled by the Australis Group, to
facilitate the delivery of all voice, audio, video or data,
including, without limitation, other programming;
Establish, operate and thereafter maintain the Facilities,
which shall have sufficient capacity to provide subscribers
with the signals to be broadcast by CC pursuant to the A
Licence;
Assist and provide technical expertise in the promotion,
advertising and marketing of the A Licence;
Establish, operate and thereafter maintain and make
available to CC a Subscriber Management System and
subscriber management services;
Assist at the request of CC in all technical areas of the
reception, distribution, installation and maintenance of
the Facilities used for the Services; and
Remit all revenue due to CC after deduction of X (as defined
in Schedule I ), within forty-five (45) days after the end
of each calendar month.
Notwithstanding any other provision of this Agreement, CC shall
at all times have absolute control of:
The selection of all of the programs to be broadcast by it
by and through the A Licence; and
All significant aspects of its operations in providing
broadcasting services through the A Licence.
For the avoidance of doubt, the parties agree that the terms
of this Agreement are not to be read so as to confer upon
Australis any power. right or expectation that CC will act in
accordance with Australis's directions, instructions or wishes or
to confer upon Australis any ability to exercise direction or
restraint over any substantial issue affecting the management or
affairs of CC and this Clause 3(b) shall prevail over all other
provisions of the Agreement (other than Clause 5(n)).
In respect of each subscriber to one or more of the A Licence
channels who is not also a subscriber to any channels offered by
Australis, Australis shall ensure that the services necessary to
provide transmission (other than transponder space), subscriber
management and all other matters necessary to support those
services of the A Licence shall be available.
COMMITTEE
Immediately following the signing of this Agreement, the parties shall
establish a committee (the "Committee") in relation to the matters the
subject of this Agreement. Such Committee shall be constituted from
time to time by one (1) nominee of each of CC and Australis. The
Committee will add one (1) further nominee to be appointed by the
nominees for each of the parties. Additional members may be appointed
to the Committee from time to time as the parties think appropriate.
The Committee shall meet at least quarterly, shall approve budgets as
envisaged in Clause 5 and Schedule 1 on matters which are the subject
of this Agreement and shall have such responsibilities as are provided
for in this Agreement and as Australis and CC shall from time to time
agree.
DIVISION OF ADJUSTED INFRASTRUCTURE NET CASH FLOW
The parties agree that the Adjusted Infrastructure Net Cash Flow
shall, subject to recalculation under this Clause 5, be divided
as follows:
ECT (or such other company or person as it may direct) shall
be entitled to receive an amount equal to 25% of the Adjusted
Infrastructure Net Cash Flow; and
AML (or such other company or person as it may direct) shall
be entitled to receive an amount equal to 75% of the Adjusted
Infrastructure Net Cash Flow.
These percentage shares have been calculated by taking into
account the relationship between the agreed capital originally
invested or committed to by each of Australis ($300,000,000)
("Australis Capital") and CC ($100,000,000) ("CC Capital") as a
proportion of the total capital ($400,000,000) ("Total Capital")
invested or committed to by or on behalf of both parties to pay
television in Australia.
The parties envisage that pay television in Australia will be
very capital intensive. The parties acknowledge that it is
Australis's and CC's intention from time to time to raise further
funds, whether by way of equity or debentures, or in any other
manner which appears to it to be appropriate and efficient.
The parties agree that their respective percentage shares of
Adjusted Infrastructure Net Cash Flow shall be recalculated from
time to time as the Australis Group raises and expends further
funds (such recalculation to include additional funds raised and
expended since acquisition of the B License) by such further
funds being added to the Australis Capital and to the Total
Capital.
In the event that ECT wishes to maintain its current percentage
share of Adjusted Infrastructure Net Cash Flow from time to time,
it may do so by
In the case of additional funds raised and expended by the
Australis Group prior to the execution of this Agreement,
paying to AML an amount sufficient to retain its then
current percentage share referred to in this Clause 5
("Adjusted Infrastructure Payment") with such payment being
made within fifteen (15) days of receipt of a notice from
AML which identifies expenditure of the funds by the
Australis Group to the reasonable satisfaction of ECT. Any
resulting surplus from the Adjusted Infrastructure Payment
shall be the initial reserve;
In the case of budgeted expenditure of funds already raised
by the Australis Group, by notifying AML within thirty (30)
days of the receipt of an expenditure budget, of ECT's
agreement to meet its then current percentage share of such
expenditure and an agreed level of reserves and paying to
AML its relevant Adjusted Infrastructure Payment on the 15th
day of the month prior to the month in which the expenditure
is to be made under the budget by AML;
In the case of further funds required by the Australis Group
to meet its budgeted expenditure and an agreed level of
reserves, paying to AML the Adjusted Infrastructure Payment
sufficient to retain its then current percentage share upon
the recalculation referred to in this Clause 5 on the 15th
day of the month prior to the month in which the expenditure
is to be made under the budget by AML. ECT shall advise AML
within thirty (30) days of the receipt of an expenditure
budget, of ECT's agreement to meet its current percentage
share of such expenditure.
Any recalculation of the respective current percentage
shares of Adjusted Infrastructure Net Cash Flow of ECT and AML,
shall take effect on the date on which the Adjusted
Infrastructure Payment would otherwise have been due and payable.
For the purposes of this Clause 5, the expression "the Australis
Group raises further funds" shall, without limiting the
generality of the expression, include all the following matters:
The raising of additional funds whether by way of debt or
equity in any manner; and
The making of any payment to the Australis Group by any
joint venture partner.
Conditions precedent to any recalculation referred to in this
Clause 5 are:
AML shall have provided annual budgets to ECT and shall have
agreed such budgets with ECT to the extent that the budgets
require ECT to provide any advice of its agreement to AML
under Clauses 5(d)(ii) and (iii), such agreement of ECT not
to be unreasonably withheld;
AML shall have agreed with ECT the determination of all
amounts which give rise to a recalculation under this Clause
5, such agreement of ECT not to be unreasonably withheld;
and
AML shall have provided to ECT any material information
requested by ECT and relevant to the determination of any
recalculation in relation to the budgets.
Division of estimated Adjusted Infrastructure Net Cash Flow and
payments in accordance with Clause 5(a) shall take place within
forty-five (45) days after the end of each calendar quarter,
based upon the estimated Adjusted Infrastructure Net Cash Flow
for such calendar quarter. Adjustments in the payments made on
account of such division shall be paid or refunded, as the case
may be, between the parties within thirty (30) days after receipt
of each party's audited financial statements, which shall be
delivered within ninety (90) days after the end of each fiscal
year and which shall be used to determine the actual Adjusted
Infrastructure Net Cash Flow for such fiscal year.
Within forty-five (45) days of the end of each calendar quarter,
Australis shall provide reports to CC in respect of the following
matters:
The Services which it has performed under this Agreement in
the preceding calendar quarter; and
The Services which it expects to perform under this
Agreement in the succeeding calendar quarter.
The reports envisaged in Clause 5(h) shall include such matters
as are reasonably required from time to time by CC.
Australis undertakes to CC:
To keep accurate and proper accounts and records in relation
to receipts and expenditure of money for or by the Australis
Group as would enable a full and adequate audit to be
undertaken;
To procure the annual audit by a qualified auditor of all
accounts and records envisaged by this Agreement to be
maintained by Australis;
To make available to the appointed auditor or any other
qualified auditor for the purpose of Clause 5(j) at all
reasonable times all accounts, records and other documents
relating to its performance of the Services and the division
of Adjusted Infrastructure Net Cash Flow under this
Agreement; and
To seek, in conjunction with CC, approval of the terms and
provisions of this Agreement from appropriate governmental
authorities promptly upon its execution by the parties.
At any time during normal business hours and upon giving at least
ten (10) Business Days' prior written notice to AML and from time
to time, but not more often than twice per fiscal year, for the
duration of the term of this Agreement, ECT shall be entitled to
appoint a qualified auditor to audit the accounts, records and
other documents relating to the performance by the Australis
Group of the Services and the division of Adjusted Infrastructure
Net Cash Flow under this Agreement. The Australis Group shall
co-operate fully in any such audit and shall assist the auditor
as reasonably required. The cost of any such audit shall be borne
by ECT.
If, from time to time, additional funds under Clause 5(d)
(whether for operating or capital needs) are required by the
partes to meet their business needs as set forth in this
Agreement, ECT and AML shall, subject to the immediately
following sentence, each provide their percentage shares, as set
forth herein, of such funds. If one party does not provide its
share of such funds, the other party may do so, in which case the
percentage of Adjusted Infrastructure Net Cash Flow as set forth
in Clause 5(a) to be distributed to ECT and AML shall be a
fraction, the denominator of which is $400,000,000 plus the
amount of any funds previously contributed by both parties from
time to time plus the additional funds referred to in this Clause
5(1) and the numerator of which, in the case of ECT, is
$100,000,000 plus the amount of all funds paid by ECT from time
to time under this Agreement plus its additional funds referred
to in this Clause 5(1) and, in the case of AML, is $300,000,000
plus the amount of all funds paid by the Australis Group from
time to time under this Agreement plus its additional funds
referred to in this Clause 5(1).
Australis undertakes that it will take no action that prejudices
or will prejudice the ability of CC or Australis to perform or
receive the economic benefits of this Agreement and without any
proposed transferee or assignee agreeing to assume Australis's
obligations hereunder. Australis also undertakes to CC at all
times to maintain and enforce those provisions required to be
incorporated into its Articles of Association by Part 6 of
Schedule 2 of the Act.
For the avoidance of doubt, the parties agree that the terms of
this Agreement are not to be read so as to confer upon CC any
power, right or expectation that Australis will act in accordance
with CC's directions, instructions or wishes or to confer upon CC
any ability to exercise direction or restraint over any
substantial issue affecting the management or affairs of
Australis and this Clause 5(n) shall prevail over all other
provisions of the Agreement (other than Clause 3(b)).
No Adjusted Infrastructure Payment pursuant to Clauses 5(d)(i) or
(ii) is required to be made until after TPC and ABA
Authorisation of the terms of this Agreement and the date for
payment of any Adjusted Infrastructure Payment arising from the
operation of those Clauses is extended accordingly until the
date on which the last of those Authorisations is given.
CC and Australis specifically acknowledge that the calculation of
the access fee for the purposes of this Agreement has taken into
account the benefits provided to Australis by CC under this
Agreement.
Notwithstanding any subsequent event, CC shall be entitled to
participate and share in the Adjusted Infrastructure Net Cash
Flow as provided in this Clause 5.
UNDERTAKINGS BY CC
CC undertakes to Australis that it will not, without advising
Australis in writing at least sixty (60) days in advance, take or
permit to be taken any action which results in or will result in any
material change to the legal, beneficial or economic ownership or
control of CC or of the A Licence or which prejudices or will
prejudice the ability of CC or Australis to perform or receive the
economic benefits of this Agreement and without any proposed
transferee or assignee agreeing to assume CC's obligations hereunder.
CC also undertakes to Australis at all times to maintain and enforce
those provisions required to be incorporated into its Articles of
Association by Part 6 of Schedule 2 of the Act.
TERMINATION
This Agreement may not be terminated except by the written consent of
all parties.
GENERAL
The parties covenant and agree that each will do all acts and
things and execute all deeds and documents and other writings as
are from time to time reasonably required for the purposes of or
to give effect to this Agreement.
This Agreement shall bc governed by and construed in accordance
with the laws of New South Wales and the parties agree to submit
to the jurisdiction of the courts in that state.
No waiver of any breach of this Agreement shall be held or
construed to be a waiver of any other subsequent or antecedent
breach of this Agreement.
Any provision of this Agreement which is illegal, void by law or
unenforceable by or contrary to law will bc ineffective to the
extent only of that illegality, voidness by law, unenforceability
or contrariness to law without invalidating the remaining
provisions. In such event, the parties shall negotiate in good
faith a new provision which is not illegal, void by law or
unenforceable or contrary to law and which provides and would
provide CC and Australis with the same or equivalent benefits and
participation that are provided for by the provision which is
deemed illegal void or unenforceable and the provisions of Clause
5(q) shall obtain.
All notices, requests, consents and other documents authorised or
required to be given by or pursuant to this Agreement shall be in
writing and shall be given by personal delivery or by first class
certified or registered mail, postage prepaid, with return
receipt requested and marked delivered or refused, or by an
overnight delivery service (such as Federal Express) with proof
of delivery or refusal of delivery, or sent by facsimile
transmission, to the parties at the following addresses and fax
numbers (or at such other address or fax number as to which the
parties hereto have been notified as provided herein):
Australis:
To: Australis Media Limited (Attention: Mr Geoff Kleemann)
Address: 100 Bulwara Road
Pyrmont NSW 2009 Australia
Fax No.: (02) 325 7440
Copy To: Mr Rodney Price
Address: Level 41 Gateway Building
No. 1 Macquarie Place
Sydney NSW 2000 Australia
Fax No.: (02) 251 2295
CC:
To: East Coast Pay Television Pty Limited
(Attention: Mr. Greg Solomon)
Address: Level 7 55 Grafton Street
Bondi Junction NSW 2021 Australia
Fax No.: (02) 386 1907
Copy To: Mr. Bernard P. Gallagher
Address: President
Century Communications Corporation
50 Locust Avenue
New Canaan CT 06840-4750 USA
Fax No.: (203) 972 2013
Each of the parties shall procure that neither it nor any of its
related parties shall make any public announcement or disclosure
to any person (save and except disclosure by Australis and CC to
all appropriate regulatory authorities including the ABA and the
TPC) in relation to this Agreement or information of which it has
become aware in connection with this Agreement unless it first
consults with and obtains the agreement in writing of the other
parties, which agreement shall not be unreasonably withheld,
provided that:
Following such consultation no party shall be entitled to
withhold agreement in the case of a public announcement or
modification where and to the extent that the same is
required by law or the applicable rules of any securities
exchange; and
A party shall be entitled to make such disclosures to the
directors, secretary, employees, professional advisers and
bankers of that party and its related parties so long as the
party uses all reasonable endeavors to ensure that the
matters disclosed are kept confidential.
This Agreement may not be modified, amended, added to or
otherwise varied except by a document in writing signed by each
of the parties or signed on behalf of each party by a director
under hand.
(i) No party shall assign, novate, mortgage, charge or
otherwise transfer all or any part of its rights under this
Agreement without the prior written consent of the offer
parties.
This Agreement shall be binding on and enure to the benefit
of each party of its respective successors and permitted
assigns.
Both Australis and CC shall be entitled to fulfil their
respective obligations hereunder by procuring that such
obligations are fulfilled by any one or more of their respective
related parties and affiliates.
Nothing contained in this Agreement shall constitute a
partnership, joint venture or association of any kind between any
of the parties or render any of those persons liable for the
debts or liabilities incurred by any other person.
The terms set out in this Agreement comprise the whole agreement
between the parties and the existence of any other agreements,
warranties, undertakings, terms, conditions and representations
(other than those implied by law and incapable of negation) is
expressly negatived.
DEFINITIONS
"ABA" means the Australian Broadcasting Authority.
"Adjusted Infrastructure Net Cash Flow" shall mean Infrastructure Net
Cash Flow for the current period plus net proceeds of the Australis
Group from the sale, lease or licensing of any part of the Facilities
or access to any part of the Facilities less approved reserves needed
for anticipated working capital, approved reserves needed for
anticipated capital expenditures (including, without limitation, fixed
assets, subscriber equipment, licenses, etc.) and approved reserves
for other appropriate purposes (including, without limitation,
investments).
"Adjusted Infrastructure Payment" has the meaning given to it in
Clause 5(d)(i).
"Act" means the Australian Broadcasting Services Act.
"A License" means satellite subscription television broadcasting
license A issued under the Act.
"Australis Capital" has the meaning given to it in Clause 5(a).
"Australis Group" means AML and its controlled entities (as defined in
the Corporations Law) and shall, where the context permits, be deemed
to include a reference to the holder of the B License.
"Authorization" means any consent, authorization, filing, agreement,
permission, license, approval, authority, exemption or written
statement that it has no present intention of taking any action from
or by a government agency or authority (including, without limitation,
the ABA and the TPC).
"B License" means satellite subscription television broadcasting
license B issued under the Act.
"broadcasting services" has the meaning given to it in the Act (as
such may bc amended from time to time).
"Business Day" means a day on which all banks are open for business
generally in New South Wales.
"CC" includes CC and each of its controlled entities (as defined in
the Corporations Law) and shall, where the context permits, be deemed
to include a reference to the holder of the A License.
"CC Capital" has the meaning given to it in Clause 5(a).
"Committee" has the meaning given to it in Clause 4.
"Facilities" means all facilities for originating and compiling,
compressing, encrypting, transmitting and receiving broadcasting
services and any services for the delivery of voice, audio, video,
data and broadcasting services and for production equipment for
related facilities (including, without limitation, originating,
transmission and reception equipment) and all relevant support
facilities (including, without limitation, broadcast centre
establishment and operations, staff training and selection, management
information and computer systems and incidental operational,
administrative and management facilities) and any facilities in the
future whether now or hereafter created which alter, upgrade, augment
or replace the original facilities.
"fiscal year" means a financial year of Australis Media limited
(currently, 1 July to 30 June).
"Infrastructure Net Cash Flow" shall mean all amounts derived by the
application of the formula in Schedule 1.
"Marketing Services" means promotion, advertising, marketing and
exploitation of broadcasting services (including, without limitation,
the sale of subscriptions, the installation of reception equipment,
the sale of advertising air time (when permitted under the Act), the
maintenance of customer service operations, the collection of fees,
subscriptions and other payments from subscribers and advertisers and
the licensing of any technology developed in relation to performance
of the Services).
"MDS" means all of those multipoint distribution services or channels
owned, controlled or operated by Australis from time to time.
"Services" means the Marketing Services and access to the Facilities
and the Subscriber Management System.
"Subscriber Management System" means an automated system, linked to
addressable decoders used by subscribers, by which subscribers to
broadcasting services may be managed (including, without limitation,
information relating to subscribers and their usage of broadcasting
services) and any such system in the future which alters, upgrades or
replaces the original system.
"Total Capital" has the meaning given to it in Clause 5(a).
"TPC" means the Trade Practices Commission.
INTERPRETATION
In this Agreement, unless the context indicates a contrary intention:
Words importing the singular include the plural and vice versa
and words denoting a given gender include all other genders;
The expression "person" includes an individual, the estate of an
individual, a body politic, a corporation and a statutory or
other authority or association (incorporated or unincorporated);
Headings and underlinings are for convenience only and do not
affect interpretation;
References to parties, clauses, sub-clauses, paragraphs,
sections, schedules, exhibits or annexures are references to
parties, clauses, sub-clauses, paragraphs, sections, schedules,
exhibits and annexures to or of this Agreement and a reference to
this Agreement includes any schedule, exhibit and annexure;
References to payments to any party to this Agreement shall be
construed to include payments to another person upon the
direction of such party;
All payments to be made pursuant to this Agreement shall be made
by unendorsed bank cheque or other immediately available funds in
Australian dollars; and
Reference to any legislation or to any clause or provision of any
legislation includes any statutory modification or re-enactment
or any statutory provision substituted therefore and all
ordinances, by-laws, regulations and other statutory documents
issued thereunder.
EXECUTED on the date first mentioned.
SIGNED for and on behalf of )
AUSTRALIS MEDIA LIMITED )
by its duly appointed Attorney )
in the presence of: )
/s/ /s/
SIGNED for and on behalf of )
NEW WORLD )
TELECOMMUNICATIONS )
PTY LIMITED )
by its duly appointed Attorney)
in the presence of: )
/s/ /s/
SIGNED for and on behalf of )
EAST COAST PAY )
TELEVISION PTY LIMITED )
by its duly appointed Attorney)
in the presence of: )
/s/ /s/
SIGNED for and on behalf of )
CONTINENTAL CENTURY )
PAY TV PTY LIMITED )
by its duly appointed Attorney)
in the presence of: )
/s/ /s/
SCHEDULE 1
INCF = ICC - IE
Where ICC = OR - PC
In the above formula:
INCF is Infrastructure Net Cash Flow;
OR is Total Operating Revenue;
ICC is Infrastructure Cost Contribution;
PC is Total Programming Costs; and
IE is Total Infrastructure Expenses.
1.1 Total Operating Revenue means all revenue derived by the Australis
Group in respect of all broadcasting services (as defined in the Act
currently or as such may be amended from time to time) and any
services for the delivery of voice, audio, video or data and/or such
other services, all as may be provided through or by the Facilities
(including, without limitation, pay per view revenue, advertising
revenue, installation revenue and revenue derived from any sale of
merchandise) except:
(i) All revenue derived from subscribers to one (1) or more of
the A Licence channels who are not also subscribers to one (1) or
more of the channels offered by the Australis Group other than
the revenue identified in 1.2 below (any such excepted revenue
shall be payable to the holder of the A Licence);
(ii) All revenue derived from subscribers to one (1) or more
of the Australis Group channels who are not also subscribers to
one (1) or more of the A Licence channels other than the revenue
identified in 1.3 below (any such excepted revenue shall be
payable to the holder of the B Licence); and
(iii) All interest income (except that interest which is
related to reserve balances resulting from the finding in which
CC has participated shall not be excluded from Total Operating
Revenue).
1.2 In respect of each subscriber to one (1) or more of the A Licence
channels who is not also a subscriber to one (1) or more of the
channels offered by the Australis Group, the amount to be included in
Total Operating Revenue is X, which amount Australis is authorised and
directed to deduct and apply as part of the Total Operating Revenue.
1.3 In respect of each subscriber to one (1) or more of the Australis
Group channels who is not also a subscriber to one (1) or more of the
A Licence channels, the amount to be included in Total Operating
Revenue is X, which amount Australis is authorised and directed to
deduct and apply as part of the Total Operating Revenue.
2.1 Total Programming Costs means the total programming costs relating to
the channels to which each subscriber subscribes calculated as
follows:
(i) In the case of programs supplied by the Australis Group, all
amounts payable to the program suppliers (whether or not the
Australis GROUP has an interest therein) payable in relation to
the subscriber but excluding minimum subscriber guarantee
payments and amounts excluded under Clause 2.1(iv) of this
Schedule 1;
(ii) In the case of programs supplied by CC, all amounts payable
to CC or any other supplier (whether or not CC has an interest
therein) in respect of such programs (including, without
limitation, under the MDS Agreement), except that in the case of
each subscriber to one (1) or more of the A Licence channels who
is not also a subscriber to one (1) or more of the channels
offered by the Australis Group the CC programming costs shall not
be taken into account;
(iii) In the case of all other programs, such actual amounts
payable to the applicable program suppliers; and
(iv) In the case of each subscriber to one (1) or more of the A
Licence channels who is not also a subscriber to one (1) or more
of the channels offered by the Australis Group, the Total
Programming Costs shall not include the cost payable by the
Australis Group under its agreements with its program suppliers
(such payments to be included as Total Infrastructure Expenses),
copies of which agreements Australis shall provide to CC.
3.1 Total Infrastructure expenses means all expenses, costs and outgoings
reasonably attributable to the derivation of any portion of Total
Operating Revenue excluding Total Programming Costs but including,
without limitation, minimum subscriber guarantee payments payable
under any agreement relating to the supply of programs and costs of
marketing, billing, technical services, delivery and administration
(excluding depreciation, amortisation, interest on debt and the
Technical Services Agreement fee due to Lenfest Australia Group Pty
Limited). Payments excluded in Clause 2.1(iv) of this Schedule 1 are
deemed to be included in this definition.
4.1 X in 1.2 and 1.3 shall be $40 or such other sum as shall be changed by
the Committee from time to time.
AUSTRALIS
MEDIA
LIMITED
A.C.N. 059 741 178
The Directors
East Coast Pay Television Pty Limited
Level 7
55 Grafton Street
Bondi Junction NSW 2022
Dear Sirs
Ancillary Letter to the Franchise Agreement
TNC Heads of Agreement
We refer to the Ancillary Letter between us dated 8 July 1994 (which
amended the Franchise Agreement between us dated 8 July 1994). Words used
in this letter have the same definition as in the Franchise Agreement. "We"
means the Australis Group. "You" means the ECT Group.
As you are aware, the Franchise Agreement entitles you to enjoy on an
exclusive basis in the Regions certain rights and benefits in connection
with the activities of the Australis Group (including the rights to or
benefits of the Franchisor's Services, the Programs, the Equipment, other
Services, the Franchisor's Delivery System, the Subscriber Management
System and the Franchisor's Proprietary Rights).
We made the TNC Heads of Agreement with Foxtel (a join venture formed
between Telstra Corporation Limited ("Telstra") and The News Corporation
Limited) and others on 9 March 1995 in which we granted to Foxtel the right
to distribute by cable the Franchisor's Services, including in the Regions.
You agree that you will make no objection to or claim in respect of the TNC
Heads of Agreement on the basis that we both now agree to all of the
following:
1. When you enter into the proposed Cable Distribution Agreement with
Foxtel authorising Foxtel to distribute Services produced or provided
by the ECT Group (including the four A Licence Services) throughout
Australia by cable, including in the Regions:
(a) references in the TNC Heads of Agreement to the 'Galaxy
Package' shall mean the four B Licence Services and shall not
include any Services provided by the ECT Group to us; and
5. The Option Agreement entered into as of 8 July 1994 is varied to
reduce our entitlement to Option Securities to 2% (after reduction in
accordance with Clause 3.5), with a commensurate reduction in the
Option Price. You and we agree to determine the precise amount of the
reduced Option Price within 14 days of the date of this letter. You
agree to provide to us all information reasonably necessary to assist
us to determine that reduced Option Price with you.
I have signed below to confirm the agreement of the Australis Group to all
of the above, which shall become effective only when:
(a) representatives of the ECT Group and Foxtel execute the Cable
Distribution Agreement; and
(b) the parties to the Cable Distribution Agreement receive an
authorisation, approval or notification from the Trade Practices
Commission and the Australian Broadcasting Authority that they have no
objection to the Cable Distribution Agreement between the ECT Group
and Foxtel.
The above conditions may not be waived by you. After satisfaction of these
conditions, the Ancillary Letter, the Option Agreement and the TNC Heads of
Agreement shall be deemed amended as set out above.
Yours sincerely
AUSTRALIS MEDIA LIMITED
/s/
Per: Rodney F Price - Chairman
Please sign below to confirm the agreement of the ECT Group.
Agreed and accepted:
EAST COAST PAY TELEVISION PTY LIMITED
/s/
Per: Bernard P Gallagher - Director
The within infrastructure Utilization Agreement (the Agreement) shall be
held in escrow by David Z. Rosensweig pending Authorisation as envisaged in
Clause 5(O) of same by the Trade Practices Commission and the Australian
Broadcasting Authority, after which an executed copy shall be distributed
to each of Australis Media Limited on behalf of Australis and East Coast
Pay Television Pty Limited on behalf of Continental Century. Words defined
in the Agreement shall have the same meaning when used in this letter.
13 June 1995
Australis Media Limited
by: /s/
its: Chairman
New World Telecommunications Pty Limited
by: /s/
its: Chairman
East Coast Pay Television Pty Limited
by:
its:
Continental Century Pay Television Pty Limited
by:
its:
The undersigned agrees to hold the above referenced infrastructure
Utilization Agreement in escrow pending the approval of same by the Trade
Practices Commission and the Australian Broadcasting Authority.
by: /s/
David Z. Rosensweig
