<PAGE>
<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 2, 1998
REGISTRATION NO. 333-
________________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
CENTURY COMMUNICATIONS CORP.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
------------------------
<TABLE>
<S> <C> <C>
NEW JERSEY 4841 06-1158179
(STATE OR OTHER JURISDICTION (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
OF INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NUMBER)
</TABLE>
------------------------
50 LOCUST AVENUE
NEW CANAAN, CT 06840
(203) 972-2000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
------------------------
BERNARD P. GALLAGHER
CENTURY COMMUNICATIONS CORP.
50 LOCUST AVENUE
NEW CANAAN, CT 06840
(203) 972-2000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
------------------------
COPIES TO:
<TABLE>
<S> <C>
DAVID Z. ROSENSWEIG DAVID F. KROENLEIN VINCENT PAGANO, JR.
LEAVY ROSENSWEIG & HYMAN WHITMAN BREED ABBOTT & MORGAN LLP SIMPSON THACHER & BARTLETT
11 EAST 44TH STREET 200 PARK AVENUE 425 LEXINGTON AVENUE
NEW YORK, NEW YORK 10017 NEW YORK, NEW YORK 10166 NEW YORK, NEW YORK 10017
(212) 983-0400 (212) 351-3000 (212) 455-2000
</TABLE>
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF THE PROPOSED SALE TO THE PUBLIC: As
soon as practicable after this Registration Statement becomes effective.
If the securities being registered on this Form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. [ ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED MAXIMUM PROPOSED
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE MAXIMUM AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED PER NOTE OFFERING PRICE(1) REGISTRATION FEE
<S> <C> <C> <C> <C>
Senior Discount Notes due
January 15, 2008, Series B............. $605,000,000 41.266% $249,659,300 $ 73,650
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(f) promulgated under the Securities Act.
------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(a), MAY DETERMINE.
________________________________________________________________________________
<PAGE>
<PAGE>
CENTURY COMMUNICATIONS CORP.
CROSS REFERENCE SHEET
PURSUANT TO RULE 404(a) AND ITEM 501 OF REGULATION S-K,
SHOWING THE LOCATION IN THE PROSPECTUS OF THE INFORMATION REQUIRED
TO BE INCLUDED THEREIN IN ACCORDANCE WITH PART I OF FORM S-4.
<TABLE>
<CAPTION>
FORM S-4 ITEM NUMBER AND CAPTION LOCATION OR HEADING IN THE PROSPECTUS
- --------------------------------------------------------------------------- --------------------------------------
<C> <S> <C>
1. Forepart of Registration Statement and Outside Front Cover Page of
Prospectus......................................................... Forepart of Registration Statement;
Outside Front Cover of Prospectus
2. Inside Front and Outside Back Cover Pages of Prospectus.............. Inside Front and Outside Back Cover
Pages of Prospectus; Available
Information
3. Risk Factors, Ratio of Earnings to Fixed Charges and Other
Information........................................................ Summary; Risk Factors; Ratio of
Earnings to Fixed Charges; Selected
Financial Information
4. Terms of the Transaction............................................. Summary; The Exchange Offer;
Description of Notes; Certain
Federal Income Tax Considerations;
Risk Factors; Plan of Distribution
5. Pro Forma Financial Information...................................... Not Applicable
6. Material Contracts with Company Being Acquired....................... Not Applicable
7. Additional Information Required for Reoffering by Persons and Parties
Deemed to be Underwriters.......................................... Not Applicable
8. Interests of Named Experts and Counsel............................... Legal Matters
9. Disclosure of Commission Position on Indemnification for Securities
Act Liabilities.................................................... Commission Position on Indemnification
for Securities Act Liabilities
10. Information With Respect to S-3 Registrants.......................... Available Information; Incorporation
of Certain Documents by Reference;
Summary; Selected Financial
Information; Management's Discussion
and Analysis of Financial Condition
and Results of Operations
11. Incorporation of Certain Information by Reference.................... Available Information; Incorporation
of Certain Documents by Reference;
Summary
12. Information With Respect to S-2 or S-3 Registrants................... Not Applicable
13. Incorporation of Certain Information by Reference.................... Not Applicable
14. Information With Respect to Registrants Other Than S-3 or S-2
Registrants........................................................ Not Applicable
15. Information With Respect to S-3 Companies............................ Not Applicable
16. Information With Respect to S-2 or S-3 Companies..................... Not Applicable
17. Information With Respect to Companies Other Than S-3 or S-2
Companies.......................................................... Not Applicable
18. Information if Proxies, Consents or Authorizations are to be
Solicited.......................................................... Not Applicable
19. Information if Proxies, Consents or Authorizations are not to be
Solicited or in an Exchange Offer.................................. Not Applicable
</TABLE>
<PAGE>
<PAGE>
SUBJECT TO COMPLETION, DATED MARCH 2, 1998
PROSPECTUS
CENTURY COMMUNICATIONS CORP.
OFFER TO EXCHANGE UP TO $605,000,000 AGGREGATE
PRINCIPAL AMOUNT AT MATURITY OF ITS
SENIOR DISCOUNT NOTES DUE JANUARY 15, 2008, SERIES B
FOR ANY AND ALL OF ITS OUTSTANDING
SENIOR DISCOUNT NOTES DUE JANUARY 15, 2008, SERIES A
------------------------
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON
, 1998, UNLESS EXTENDED.
------------------------
Century Communications Corp., a New Jersey corporation (the 'Company'),
hereby offers, upon the terms and subject to the conditions set forth in this
Prospectus and the accompanying Letter of Transmittal (as defined herein, which
together with this Prospectus constitute the 'Exchange Offer'), to exchange
$1,000 principal amount at maturity of Senior Discount Notes due January 15,
2008, Series B (the 'New Notes') of the Company for each $1,000 principal amount
at maturity of the issued and outstanding Senior Discount Notes due January 15,
2008, Series A (the 'Existing Notes') of the Company from the Registered Holders
(as defined herein) thereof. As of the date of this Prospectus, there is
$605,000,000 aggregate principal amount at maturity of the Existing Notes
outstanding. The terms of the New Notes are identical in all material respects
to the Existing Notes, except that the New Notes have been registered under the
Securities Act of 1933, as amended (the 'Securities Act'), and therefore will
not bear legends restricting their transfer. Certain provisions of the
Registration Rights Agreement (as defined herein) providing for payment of
liquidated damages under certain circumstances relating to such Registration
Rights Agreement will terminate upon the issuance of the New Notes. The New
Notes will evidence the same debt as the Existing Notes and will be issued
pursuant to, and entitled to the benefits of, the Indenture, dated January 15,
1998, between the Company and First Trust of California, National Association,
as trustee (the 'Trustee'), pursuant to which the Existing Notes were issued. As
used herein, the term 'Notes' means the Existing Notes and the New Notes treated
as a single class. See 'The Exchange Offer' and 'Description of the Notes.'
The Notes, which mature on January 15, 2008, are limited to $605,000,000 in
aggregate principal amount at maturity. The Existing Notes were sold at a
substantial discount from the principal amount payable at their maturity. There
will be no periodic payments of interest on the Notes. Original issue discount
(the difference between the issue price and the stated redemption price at
maturity of a Note), accrues from January 15, 1998 and continuing during the
period in which a Note remains outstanding, at 9.05% per annum (the 'Yield to
Maturity'), calculated on a semi-annual bond equivalent basis using a 360-day
year composed of twelve 30-day months. Original issue discount will cease to
accrue with respect to any Note on the date the principal thereof shall become
due (whether at maturity or upon acceleration) or on the date fixed for purchase
thereof. If the Company shall fail to deposit with the Trustee or any paying
agent an amount of money sufficient to discharge the principal of any Note when
due or to purchase any Note when so required, then interest on the overdue
amount shall thereupon accrue at the Yield to Maturity. For information as to
the federal income tax consequences of original issue discount on the holder of
a Note, see 'Certain Federal Income Tax Considerations.' The Notes will not be
entitled to the benefit of any sinking fund.
Following the occurrence of a Triggering Event (as defined herein), each
holder of Notes will have the right to require the Company to purchase all or a
portion of such holder's Notes at a purchase price equal to 101% of the Accreted
Value (as defined herein) of the Notes on the date of purchase. See 'Description
of the Notes.'
The New Notes will be senior unsecured obligations of the Company and will
rank pari passu in right of payment with all existing and future unsecured and
unsubordinated indebtedness of the Company and senior in right of
(Continued on next page)
------------------------
SEE 'RISK FACTORS' BEGINNING ON PAGE 12 FOR A DISCUSSION OF CERTAIN FACTORS THAT
SHOULD BE CONSIDERED BY REGISTERED HOLDERS PRIOR TO TENDERING EXISTING NOTES IN
THE EXCHANGE OFFER.
------------------------
THE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE COMMISSION NOR HAS THE COMMISSION OR ANY
STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF
THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
THE DATE OF THIS PROSPECTUS IS , 1998.
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
<PAGE>
<PAGE>
(Continued from cover)
payment to all future subordinated indebtedness of the Company. The New Notes
will be effectively subordinated to all secured indebtedness of the Company to
the extent of the assets securing such indebtedness and to all existing and
future indebtedness of the Company's subsidiaries. As of November 30, 1997, the
Company and its subsidiaries would have had, on a pro-forma basis, an aggregate
of approximately $2.381 billion of indebtedness outstanding, including the
Notes, of which approximately $667.1 million would have been indebtedness of
subsidiaries which would have been effectively senior to the Notes and the
balance of which is pari passu in right of payment with the Notes. See 'Use of
Proceeds' and 'Description of the Notes.'
The Company will accept for exchange any and all Existing Notes validly
tendered and not withdrawn prior to 5:00 p.m., New York City time, on the
Expiration Date (as defined herein). See 'The Exchange Offer -- Expiration Date;
Extensions; Amendments.' Tenders of Existing Notes may be withdrawn at any time
prior to 5:00 p.m., New York City time, on the Expiration Date. See 'Procedures
for Tendering Existing Notes -- Withdrawal Rights.' The Exchange Offer is
subject to certain customary conditions. See 'The Exchange Offer -- Conditions
to the Exchange Offer.'
Existing Notes initially sold to Qualified Institutional Buyers (as defined
in Rule 144A under the Securities Act) and pursuant to Regulation S under the
Securities Act were represented by global Note certificates in definitive fully
registered form, registered in the name of a nominee of The Depository Trust
Company ('DTC'), as depositary. The New Notes exchanged for Existing Notes
represented by the global Note certificates will be represented by global Note
certificates in definitive fully registered form, registered in the name of the
nominee of DTC, as depositary, unless the beneficial holders thereof request
otherwise. The global Note certificates will be exchangeable, upon ten days'
prior written notice, for New Notes in definitive fully registered form, in
denominations of $1,000 and integral multiples thereof. See 'Description of
Notes -- Book-Entry Delivery and Form.'
Based on interpretations by the staff of the Securities and Exchange
Commission (the 'Commission') set forth in no-action letters issued to third
parties with respect to similar transactions, including Exxon Capital Holding
Corp. (available May 13, 1988) ('Exxon Capital'), Morgan Stanley & Co. Inc.
(available June 5, 1991) ('Morgan Stanley') and similar no-action letters, the
Company believes that the New Notes issued pursuant to the Exchange Offer in
exchange for Existing Notes may be offered for resale, resold or otherwise
transferred by any holder thereof (other than any such holder that is an
'affiliate' of the Company within the meaning of Rule 405 promulgated under the
Securities Act) without compliance with the registration and prospectus delivery
provisions of the Securities Act, provided that such New Notes are acquired in
the ordinary course of such holder's business, such holder has no arrangement
with any person to participate in the distribution of such New Notes and neither
such holder nor any such other person is engaging in or intends to engage in a
distribution of such New Notes. However, the Company has not sought a no-action
letter with respect to the Exchange Offer and there can be no assurance that the
Staff of the Commission would make a similar determination with respect to the
Exchange Offer. Each Registered Holder of Existing Notes, other than a
broker-dealer, must acknowledge that it is not engaged in, has no arrangement or
understanding with any person to participate in and does not intend to engage in
a distribution of New Notes. Any Registered Holder who tenders in the Exchange
Offer for the purpose of participating in a distribution of New Notes (i) cannot
rely on such an interpretation by the Staff of the Commission, (ii) will not be
able to validly tender Existing Notes in the Exchange Offer and (iii) must
comply with the registration and prospectus delivery requirements of the
Securities Act in connection with any secondary resale transactions. In
addition, each broker-dealer that receives New Notes for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such New Notes. The Letter of
Transmittal accompanying this Prospectus states that by so acknowledging and by
delivering a prospectus, a broker-dealer will not be deemed to admit that it is
an 'underwriter' within the meaning of the Securities Act. This Prospectus, as
it may be amended or supplemented from time to time, may be used by a
broker-dealer in connection with resales of New Notes received in exchange for
Existing Notes where such Existing Notes were acquired by such broker-dealer as
a result of market-making activities or other trading activities. Pursuant to
the Registration Rights Agreement, the Company has agreed that it will make this
Prospectus available to any broker-dealer for use in connection with any such
resale. See 'Plan of Distribution.'
2
<PAGE>
<PAGE>
AVAILABLE INFORMATION
The Company has filed with the Commission a registration statement on Form
S-4 (together with all amendments, exhibits, schedules and supplements thereto,
the 'Registration Statement') under the Securities Act with respect to the New
Notes being offered hereby. This Prospectus, which forms a part of the
Registration Statement, does not contain all of the information set forth in the
Registration Statement, certain portions of which have been omitted pursuant to
the rules and regulations promulgated by the Commission. For further information
with respect to the Company, reference is made to the Registration Statement.
Statements made in this Prospectus as to the contents of any contract, agreement
or other document are not necessarily complete. With respect to each such
contract, agreement or other document filed or incorporated by reference as an
exhibit to the Registration Statement, reference is made to such exhibit for a
more complete description of the matter involved, and each such statement is
qualified in its entirety by such reference.
The Company is subject to the information reporting requirements of the
Securities Exchange Act of 1934, as amended (the 'Exchange Act'), and in
accordance therewith files reports, proxy and information statements and other
information with the Commission. Such material filed by the Company with the
Commission may be inspected and copied at the Public Reference Section of the
Commission at Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington,
D.C. 20549, and at the regional offices of the Commission located at 7 World
Trade Center, Suite 1300, New York, New York 10048 and Citicorp Center, 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661. Copies of such material may
also be obtained at the Public Reference Section of the Commission at Room 1024,
Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549 at prescribed
rates. The Commission also maintains a website that contains reports, proxy and
information statements and other information. The website address is
http://www.sec.gov. The Company's Class A Common Stock is listed on The Nasdaq
Stock Market and the Company therefore also files reports, proxy and information
statements and other information with the National Association of Securities
Dealers, Inc. ('NASD'). The above material can be inspected at the Nasdaq
Reports Section, 1735 K Street, N.W., Washington, D.C. 20006. In the event that
the Company is not required to be subject to the reporting requirements of the
Exchange Act in the future, the Company will be required under the Indenture to
file with the Commission the reports, proxy and information statements and other
documents and information specified in Sections 13 and 15(d) of the Exchange
Act.
INFORMATION INCORPORATED BY REFERENCE
The following reports filed by the Company with the Commission pursuant to
the Exchange Act are incorporated herein by reference: the Annual Report on Form
10-K for the fiscal year ended May 31, 1997, the Quarterly Reports on Form 10-Q
for the quarterly periods ended August 31, 1997 and November 30, 1997 and the
Current Report on Form 8-K filed on December 10, 1997.
All documents subsequently filed by the Company pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act prior to the termination of the offering
of the New Notes shall be deemed to be incorporated by reference in this
Prospectus and to be a part hereof from the respective date of filing of each
such document. Any statement contained in a document incorporated or deemed to
be incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein
or in any other subsequently filed document which also is, or is deemed to be,
incorporated by reference herein modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Prospectus.
The Company will provide without charge to each person to whom this
Prospectus is delivered, upon written or oral request, a copy of any or all of
the documents incorporated by reference herein, other than certain exhibits to
such documents. Requests for such documents should be directed to Scott N.
Schneider, Chief Financial Officer, Senior Vice President and Treasurer, Century
Communications Corp., 50 Locust Avenue, New Canaan, Connecticut 06840. The
Company's telephone number is (203) 972-2000. In order to ensure timely delivery
of the documents, any request should be made no later than five days prior to
the expiration date.
3
<PAGE>
<PAGE>
FORWARD-LOOKING STATEMENTS
THIS PROSPECTUS CONTAINS STATEMENTS WHICH CONSTITUTE FORWARD-LOOKING
STATEMENTS WITHIN THE MEANING OF THE PRIVATE SECURITIES LITIGATION REFORM ACT OF
1995. THESE STATEMENTS APPEAR IN A NUMBER OF PLACES IN THIS PROSPECTUS AND
INCLUDE STATEMENTS REGARDING THE INTENTS, BELIEF OR CURRENT EXPECTATIONS OF THE
COMPANY WITH RESPECT TO TRENDS AFFECTING THE COMPANY'S FINANCIAL CONDITION OR
RESULTS OF OPERATIONS; THE CONSEQUENCES OF FAILURE TO EXCHANGE; THE NECESSITY TO
COMPLY WITH EXCHANGE OFFER PROCEDURES; THE COMPANY'S NET LOSSES AND
STOCKHOLDERS' DEFICIENCY; THE COMPANY'S DEBT STRUCTURE; THE COMPETITIVE NATURE
OF THE CABLE TELEVISION AND WIRELESS TELEPHONE INDUSTRIES; RISK ASSOCIATED WITH
YEAR 2000; REGULATION; THE ABSENCE OF A PUBLIC MARKET FOR THE NOTES; RESTRICTIVE
COVENANTS AND CONSEQUENCES OF DEFAULT CONTAINED IN THE COMPANY'S FINANCING
ARRANGEMENTS; CONTROL BY CERTAIN OF THE COMPANY'S STOCKHOLDERS; THE RECOVERY OF
THE COMPANY'S AUSTRALIAN INVESTMENT; OPERATING HAZARDS AND UNINSURED RISKS;
REFINANCING AND INTEREST RATE EXPOSURE RISKS; AND POTENTIAL FOR CHANGES IN
ACCOUNTING STANDARDS.
PROSPECTIVE INVESTORS ARE CAUTIONED THAT ANY SUCH FORWARD-LOOKING
STATEMENTS ARE NOT GUARANTEES OF FUTURE PERFORMANCE AND INVOLVE RISKS AND
UNCERTAINTIES, AND THAT ACTUAL RESULTS MAY DIFFER MATERIALLY FROM THOSE IN THE
FORWARD-LOOKING STATEMENTS AS A RESULT OF VARIOUS FACTORS. THE ACCOMPANYING
INFORMATION CONTAINED OR INCORPORATED BY REFERENCE IN THIS PROSPECTUS,
INCLUDING, WITHOUT LIMITATION, THE INFORMATION UNDER 'RISK FACTORS,'
'MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF
OPERATIONS,' AND 'BUSINESS' IDENTIFIES IMPORTANT FACTORS THAT COULD CAUSE SUCH
DIFFERENCES.
------------------------
CERTAIN PERSONS PARTICIPATING IN THIS OFFERING MAY ENGAGE IN TRANSACTIONS THAT
STABILIZE, MAINTAIN OR OTHERWISE AFFECT THE PRICE OF THE NOTES. SPECIFICALLY,
THE INITIAL PURCHASER MAY OVER-ALLOT IN CONNECTION WITH THE OFFERING, MAY BID
FOR AND PURCHASE NOTES IN THE OPEN MARKET AND MAY IMPOSE PENALTY BIDS. FOR A
DESCRIPTION OF THESE ACTIVITIES, SEE 'PLAN OF DISTRIBUTION.'
4
<PAGE>
<PAGE>
IMPORTANT
To properly tender Existing Notes, the following procedures must be
followed:
Each beneficial owner owning interests in the Existing Notes ('Beneficial
Owner') through a DTC Participant (as defined below) must instruct such
DTC Participant to cause Existing Notes to be tendered in accordance with
the procedures set forth in this Prospectus.
Each participant (a 'DTC Participant') in the Depository Trust Company
('DTC') holding Existing Notes through DTC must (i) electronically
transmit its acceptance to DTC through the DTC Automated Tender Offer
Program ('ATOP'), for which the transaction will be eligible, and DTC will
then edit and verify the acceptance, execute a book-entry delivery to the
Exchange Agent's account at DTC and send an Agent's Message (as defined
herein) to the Exchange Agent for its acceptance, or (ii) comply with the
guaranteed delivery procedures set forth under 'Procedures for Tendering
Existing Notes -- Guaranteed Delivery Procedures -- Notes held through
DTC.' By tendering through ATOP, DTC Participants will expressly
acknowledge receipt of the accompanying Letter of Transmittal and agree to
be bound by its terms and the Company will be able to enforce such
agreement against such DTC Participants.
Each registered owner of a registered certificated Existing Note (a
'Registered Holder') must (i) complete and sign the accompanying Letter of
Transmittal, and mail or deliver such Letter of Transmittal, and all other
documents required by the Letter of Transmittal, together with
certificate(s) representing all tendered Existing Notes, to the Exchange
Agent at its address set forth under 'Procedures for Tendering Existing
Notes -- Exchange Agent,' or (ii) comply with the guaranteed delivery
procedures set forth under 'Procedures for Tendering Existing Notes --
Guaranteed Delivery Procedures -- Notes held by Registered Holders.'
For purposes of this Prospectus, 'Tendering Holder' shall mean (i) each DTC
Participant that has properly transmitted (and not properly withdrawn) its
acceptance through ATOP and in respect of which DTC has sent an Agent's Message,
(ii) each Registered Holder that has timely delivered to the Exchange Agent (and
not properly withdrawn) a properly completed and duly executed Letter of
Transmittal, and any other documents required by the Letter of Transmittal,
together with certificate(s) representing all tendered Existing Notes, or (iii)
each DTC Participant or Registered Holder that has complied with the guaranteed
delivery procedures set forth herein.
The information in this Prospectus concerning DTC and their book-entry
systems has been obtained from sources that the Company believes to be reliable,
but the Company takes no responsibility for the accuracy thereof.
5
<PAGE>
<PAGE>
SUMMARY
The following summary is qualified in its entirety by, and is subject to,
the more detailed information and consolidated financial statements (including
the notes thereto) appearing elsewhere in this Prospectus and in the documents
incorporated herein by reference. This Prospectus contains forward-looking
statements which involve risks and uncertainties. The Company's actual results
may differ significantly from the results discussed in the forward-looking
statements. Factors that might cause such a difference include, but are not
limited to, those discussed in 'Risk Factors.' See 'Forward-Looking Statements.'
THE COMPANY
The Company was incorporated in New Jersey on December 5, 1985 as the
holding company for a corporation of the same name incorporated in Texas on June
12, 1973. The Company is engaged primarily in the ownership and operation of
cable television systems and wireless telephone systems. The Company's principal
executive offices are located at 50 Locust Avenue, New Canaan, Connecticut
06840, and its telephone number is (203) 972-2000.
THE EXCHANGE OFFER
The Existing Notes were issued and sold on January 15, 1998 in a
transaction (the 'Initial Offering') exempt from the registration requirements
of the Securities Act and applicable state securities laws and may not be
offered or sold in the United States unless so registered or pursuant to an
applicable exemption under the Securities Act and applicable state securities
laws. The Exchange Offer is being made with respect to all outstanding Existing
Notes. See 'The Exchange Offer.' The New Notes will be entitled to the benefits
of the same Indenture under which the Existing Notes were issued. See
'Description of the Notes.'
<TABLE>
<S> <C>
The Exchange Offer.................. The Company is offering to exchange pursuant to the Exchange Offer $1,000
principal amount at maturity of New Notes in exchange for each outstanding
$1,000 principal amount at maturity of Existing Notes. As of the date
hereof, $605,000,000 aggregate principal amount at maturity of the Existing
Notes are outstanding. The terms of the New Notes are identical in all
material respects to the terms of the Existing Notes except that the New
Notes have been registered under the Securities Act, and therefore will not
bear legends restricting their transfer. Certain provisions of the
Registration Rights Agreement providing for the payment of liquidated
damages under certain circumstances relating to such Registration Rights
Agreement (as defined below) will terminate upon the issuance of the New
Notes. See 'The Exchange Offer -- Purpose and Effect of the Exchange
Offer.'
Based on no-action letters issued by the Staff of the Commission to third
parties with respect to similar transactions, including Exxon Capital,
Morgan Stanley and similar no-action letters, the Company believes that the
New Notes issued pursuant to the Exchange Offer in exchange for Existing
Notes may be offered for resale, resold and otherwise transferred by
Registered Holders thereof (other than any such Registered Holder that is
an affiliate of the Company) without compliance with the registration and
prospectus delivery requirements of the Securities Act, provided that such
New Notes are acquired in the ordinary course of such Registered Holders'
business and such Registered Holders are not engaged in, have no
arrangement or understanding with any person to participate in, and do not
intend to engage in, any distribution of the New Notes.
</TABLE>
6
<PAGE>
<PAGE>
<TABLE>
<S> <C>
However, the Company has not sought a no-action letter with respect to the
Exchange Offer and there can be no assurance that the Staff of the
Commission would make a similar determination with respect to the Exchange
Offer. Each Registered Holder of Existing Notes, other than a
broker-dealer, must acknowledge that it is not engaged in, has no
arrangement or understanding with any person to participate in, and does
not intend to engage in a distribution of, New Notes. Any Registered Holder
who tenders in the Exchange Offer for the purpose of participating in a
distribution of New Notes (i) will not be able to rely on the
interpretations of the Staff of the Commission set forth in the
above-referenced no-action letters, (ii) will not be able to validly tender
Existing Notes in the Exchange Offer, and (iii) must comply with the
registration and prospectus delivery requirements of the Securities Act in
connection with any secondary resale transactions. In addition, each
broker-dealer that receives New Notes for its own account pursuant to the
Exchange Offer must acknowledge that it will deliver a prospectus in
connection with any resale of such New Notes. The Letter of Transmittal
accompanying this Prospectus states that by so acknowledging and by
delivering a prospectus, a broker-dealer will not be deemed to admit that
it is an 'underwriter' within the meaning of the Securities Act. This
Prospectus, as it may be amended or supplemented from time to time, may be
used by a broker-dealer in connection with resales of New Notes received in
exchange for Existing Notes where such Existing Notes were acquired by such
broker-dealer as a result of market-making activities or other trading
activities. Pursuant to the Registration Rights Agreement, the Company has
agreed that it will make this Prospectus available to any broker-dealer for
use in connection with any such resale. See 'The Exchange Offer -- Purpose
and Effect of the Exchange Offer -- Transferability' and 'Plan of
Distribution.'
Purpose and Effect of the Exchange
Offer............................. In connection with the Initial Offering, the Company entered into the
Registration Rights Agreement dated January 15, 1998 (the 'Registration
Rights Agreement') with Merrill Lynch, Pierce, Fenner & Smith Incorporated
(the 'Initial Purchaser') providing for the Exchange Offer. Pursuant to the
Registration Rights Agreement, the Company agreed to file with the
Commission and use its best efforts to cause to become effective the
Registration Statement with respect to the Exchange Offer for the New Notes
registered under the Securities Act, with terms identical in all material
respects to the terms of the Existing Notes except that the New Notes will
be registered under the Securities Act, and therefore will not bear legends
restricting their transfer. The New Notes will not receive the benefits of
certain provisions of the Registration Rights Agreement which provide for
payment of liquidated damages relating to the Company's failure to meet
specified milestones with respect to certain registration rights (as
described therein) which provisions will terminate upon the issuance of the
New Notes. See 'The Exchange Offer -- Purpose and Effect of the Exchange
Offer.' In addition, if the Exchange Offer cannot be consummated within 210
days after the Initial Issue Date for any
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reason, or if the Initial Purchaser so requests with respect to (i)
Existing Notes not eligible or permitted to be exchanged or (ii) New Notes
received that are not fully tradeable, the Company will be required to file
a Shelf Registration Statement (the 'Shelf Registration Statement') for an
offering to be made on continuous basis pursuant to Rule 415 under the
Securities Act. See 'The Exchange Offer -- Purpose and Effect of the
Exchange Offer -- Shelf Registration Statement.'
Expiration Date..................... The Exchange Offer will expire at 5:00 p.m., New York City time, on the
Expiration Date (as defined herein), unless the Exchange Offer is extended
as provided herein, in which case the term 'Expiration Date' means the
latest date and time to which the Exchange Offer is extended. Any Existing
Notes not accepted for exchange for any reason will be returned without
expense to the Tendering Holder thereof as promptly as practicable after
the expiration or termination of the Exchange Offer. See ' -- Terms of the
Exchange Offer.'
Exchange Date....................... As soon as practicable after the close of the Exchange Offer, the Company
will accept for exchange all Existing Notes properly tendered and not
validly withdrawn prior to 5:00 p.m., New York City time, on the Expiration
Date. See 'The Exchange Offer -- Exchange Date.'
Conditions to the Exchange Offer.... The Exchange Offer is subject to certain customary conditions, which may be
waived by the Company. The Company reserves the right to amend, terminate
or extend the Exchange Offer at any time prior to the Expiration Date upon
the occurrence of any such condition. The Exchange Offer is not conditioned
on any minimum aggregate principal amount at maturity of Existing Notes
being tendered for exchange. See 'The Exchange Offer -- Conditions.'
Consequences of Failure to
Exchange.......................... Registered Holders of Existing Notes who do not exchange their Existing
Notes for New Notes pursuant to the Exchange Offer will continue to be
subject to the restrictions on transfer of such Existing Notes as set forth
in the legend thereon as a consequence of the issuance of the Existing
Notes pursuant to exemptions from, or in transactions not subject to, the
registration requirements of the Securities Act and applicable state
securities laws. In general, Existing Notes may not be offered or sold
unless registered under the Securities Act, except pursuant to an exemption
from, or in a transaction not subject to, the Securities Act and applicable
state securities laws.
PROCEDURES FOR TENDERING EXISTING NOTES
Tendering Existing Notes............ Each Beneficial Owner of Existing Notes held through a DTC Participant must
instruct such DTC Participant to cause its Existing Notes to be tendered in
accordance with the procedures set forth under 'Procedures for Tendering
Existing Notes -- Tendering Existing Notes -- Notes held through a
Custodian.'
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Each DTC Participant holding Existing Notes through DTC must (i)
electronically transmit its acceptance through ATOP, and DTC will then edit
and verify the acceptance, execute a book-entry delivery to the Exchange
Agent's account at DTC and send an Agent's Message to the Exchange Agent
for its acceptance, or (ii) comply with the guaranteed delivery procedures
set forth in this Prospectus and in the Notice of Guaranteed Delivery. See
'Procedures for Tendering Existing Notes -- Tendering Existing
Notes -- Notes held through DTC' and ' -- Guaranteed Delivery
Procedures -- Notes held through DTC.'
Each Registered Holder must (i) complete and sign a Letter of Transmittal,
and mail or deliver such Letter of Transmittal, and all other documents
required by the Letter of Transmittal, together with certificate(s)
representing all tendered Existing Notes, to the Exchange Agent at its
address set forth under 'Procedures for Tendering Existing
Notes -- Exchange Agent,' or (ii) comply with the guaranteed delivery
procedures set forth in this Prospectus. See 'Procedures for Tendering
Existing Notes -- Tendering Existing Notes -- Notes held by Registered
Holders' and ' -- Guaranteed Delivery Procedures -- Notes held by
Registered Holders.'
By tendering, each Registered Holder and each DTC Participant will
represent to the Company that, among other things, (i) it is not an
Affiliate of the Company, (ii) it is not a broker-dealer tendering Existing
Notes acquired directly from the Company for its own account, (iii) the New
Notes acquired pursuant to the Exchange Offer are being obtained in the
ordinary course of business of such Registered Holder and (iv) it has no
arrangements or understandings with any person to participate in the
Exchange Offer for the purpose of distributing the New Notes. See
'Procedures for Tendering Existing Notes -- Tendering Existing Notes.'
Guaranteed Delivery
Procedures........................ DTC Participants holding Existing Notes through DTC who wish to cause their
Existing Notes to be tendered, but who cannot transmit their acceptances
through ATOP prior to the Expiration Date, may effect a tender in
accordance with the procedures set forth in this Prospectus. See
'Procedures for Tendering Existing Notes -- Guaranteed Delivery
Procedures -- Notes held through DTC.'
Registered Holders who wish to tender their Existing Notes but (i) whose
Existing Notes are not immediately available and will not be available for
tendering prior to the Expiration Date, or (ii) who cannot deliver their
Existing Notes, the Letter of Transmittal, or any other required documents
to the Exchange Agent prior to the Expiration Date, may effect a tender in
accordance with the procedures set forth in this Prospectus. See
'Procedures for Tendering Existing Notes -- Guaranteed Delivery
Procedures -- Notes held by Registered Holders.'
Withdrawal Rights................... Tenders of Existing Notes pursuant to the Exchange Offer may be withdrawn
as provided herein at any time prior to 5:00 p.m., New York City time, on
the Expiration Date. See 'The Exchange Offer -- Withdrawal of Tenders.'
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Exchange Agent...................... First Trust of California, National Asociation is serving as Exchange Agent
in connection with the Exchange Offer. See 'The Exchange Offer -- Exchange
Agent.'
Use of Proceeds..................... There will be no cash proceeds to the Company from the exchange pursuant to
the Exchange Offer. Net proceeds received by the Company from the sale of
the Existing Notes were applied to repay temporarily borrowings under the
Company's Cable Operations' Credit Agreements (as defined herein) and for
capital expenditures, operations, acquisitions and other investments that
would have otherwise been paid for under the Cable Operations' Credit
Agreements.
Certain Federal Income Tax
Consequences...................... The exchange of Existing Notes for New Notes will not be a taxable exchange
for Federal income tax purposes. See 'Certain Federal Income Tax
Considerations.'
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THE NEW NOTES
The Exchange Offer applies to $605,000,000 aggregate principal amount at
maturity of Existing Notes. The terms of the New Notes are identical in all
material respects to the Existing Notes, except that the New Notes have been
registered under the Securities Act and, therefore, will not bear legends
restricting their transfer. Certain provisions of the Registration Rights
Agreement providing for the payment of liquidated damages under certain
circumstances relating to such Registration Rights Agreement will terminate upon
the issuance of the Existing Notes. The New Notes will evidence the same debt as
the Existing Notes and, except as set forth in the immediately preceding
sentence, will be entitled to the benefits of the Indenture, under which both
the Existing Notes were, and the New Notes will be, issued. See 'Description of
Notes.'
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The New Notes....................... $605,000,000 aggregate principal amount at maturity of Senior Discount
Notes due January 15, 2008, Series B. The Existing Notes were issued at a
substantial discount to their aggregate principal amount at maturity.
Original issue discount accrues on the Notes from January 15, 1998 and
continuing during the period in which the Notes remain outstanding. See
'Certain Federal Income Tax Considerations' for a discussion of the federal
income tax consequences of original issue discount. Such original issue
discount represents an annual yield to maturity based on the issue price of
9.05% (calculated on a semi-annual bond equivalent basis). There will be no
periodic payments of interest on the New Notes. The New Notes may not be
redeemed prior to maturity and will not be entitled to the benefit of any
sinking fund.
Maturity Date....................... January 15, 2008.
Ranking............................. The New Notes will be senior unsecured obligations of the Company and will
rank pari passu in right of payment with all existing and future unsecured
and unsubordinated indebtedness of the Company and senior in right of
payment to all future subordinated indebtedness of the Company. The New
Notes will be effectively subordinated to all secured indebtedness of the
Company to the extent of the assets securing such indebtedness and all
existing and future indebtedness of the subsidiaries of the Company. As of
November 30, 1997, on a pro-forma basis, including the net proceeds from
the issuance of the Existing Notes and the use of a
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portion of the proceeds therefrom to repay $185 million outstanding under
the Cable Operations' Credit Agreements, the Company and its subsidiaries
would have had an aggregate of approximately $2.381 billion of indebtedness
outstanding, of which $667.1 million would have been indebtedness of
subsidiaries effectively senior to the New Notes and the balance of which
is pari passu in right of payment with the Notes. See 'Use of Proceeds' and
'Description of the Notes.'
Right to Require Repurchase......... Following the occurrence of a Triggering Event (as defined in 'Description
of the Notes') each holder of New Notes will have the right to require the
Company to purchase all or a portion of such holder's New Notes at a
purchase price equal to 101% of the Accreted Value (as defined in
'Description of the Notes') of such New Notes on the date of purchase. See
'Description of the Notes -- Certain Rights to Require Repurchase of
Notes.'
Certain Covenants................... The Indenture (as defined in 'Description of the Notes') will contain
certain covenants, including (i) limitations on indebtedness incurred by
the Company and the Restricted Subsidiaries (as defined in 'Description of
the Notes'), (ii) limitations on dividend and stock purchases (as defined
in 'Description of the Notes'), (iii) restrictions on any investment by the
Company and the Restricted Subsidiaries in any Affiliate or any
Unrestricted Subsidiary (each as defined in 'Description of the Notes'),
and (iv) limitations on transactions with Affiliates. In addition, the
Indenture will limit the ability of the Company to consolidate, merge or
sell all or substantially all of its assets. These covenants are subject to
important exceptions and qualifications. See 'Description of the
Notes -- Certain Covenants.'
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For additional information regarding the Notes, see 'Use of Proceeds',
'Description of Notes' and 'Certain Federal Income Tax Considerations.'
RISK FACTORS
Potential investors in the New Notes should carefully consider the
information set forth in this Prospectus and, in particular, should evaluate the
specific factors set forth under the caption 'Risk Factors' prior to tendering
Existing Notes in exchange for New Notes, including (i) the consequences of a
failure to participate in the Exchange Offer, (ii) the degree of leverage of the
Company, and (iii) the lack of a public market for the New Notes. See 'Risk
Factors' beginning on page 12.
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RISK FACTORS
Registered Holders should carefully consider the following risk factors, as
well as the other information included or incorporated by reference in this
Prospectus, prior to making a decision to tender their Existing Notes in the
Exchange Offer. This Prospectus contains forward-looking statements that involve
risks and uncertainties. Such statements are based on management's current
expectations and are subject to a number of factors and uncertainties which
could cause the Company's performance and the other matters discussed in the
forward-looking statements to differ significantly from that discussed in the
forward-looking statements. Factors that could cause such differences include,
but are not limited to, those discussed as risk factors below and other factors
discussed elsewhere in this Prospectus. The Company assumes no obligation to
update its forward-looking statements or to advise of changes in the assumptions
and factors on which they are based.
CONSEQUENCES OF FAILURE TO EXCHANGE
Any Existing Notes not tendered pursuant to the Exchange Offer will remain
outstanding. Such Existing Notes will remain 'restricted securities' (within the
meaning of the Securities Act). Accordingly, prior to the date that is two years
after the later of the initial issue date thereof (the 'Initial Issue Date') and
the last date on which the Company or any Affiliate of the Company was the owner
of such Existing Notes (the 'Resale Restriction Termination Date'), such
Existing Notes may be resold only (i) to the Company, (ii) to a person whom the
seller reasonably believes is a 'qualified institutional buyer' purchasing for
its own account or for the account of another 'qualified institutional buyer' in
compliance with the resale limitations of Rule 144A, (iii) to an Institutional
Accredited Investor that, prior to such transfer, furnishes to the Trustee a
written certification containing certain representations and agreements relating
to the restrictions on transfer of the Notes (the form of which letter can be
obtained from the Trustee), (iv) pursuant to the limitations on resale provided
by Rule 144 under the Securities Act (if available), (v) pursuant to the resale
provisions of Rule 904 of Regulation S under the Securities Act, (vi) pursuant
to an effective registration statement under the Securities Act, or (vii)
pursuant to any other available exemption from the registration requirements of
the Securities Act, subject in each of the foregoing cases to compliance with
applicable state securities laws. As a result, the liquidity of the market for
such non-tendered Existing Notes could be adversely affected upon completion of
the Exchange Offer. The foregoing restrictions on resale will not apply
subsequent to the Resale Restriction Termination Date.
NECESSITY TO COMPLY WITH EXCHANGE OFFER PROCEDURES
To participate in the Exchange Offer, and to avoid the restrictions on
transfer of the Existing Notes, Registered Holders of Existing Notes must
transmit a properly completed Letter of Transmittal or an Agent's Message,
including all other documents required by such Letter of Transmittal, to the
Exchange Agent at one of the addresses set forth below under 'The Exchange
Offer -- Exchange Agent' on or prior to the Expiration Date. In addition, either
(i) certificates for such Existing Notes must be received by the Exchange Agent
along with the Letter of Transmittal or (ii) a timely confirmation of a
book-entry transfer of such Existing Notes, if such procedure is available, into
the Exchange Agent's account at The Depository Trust Company pursuant to the
procedure for book-entry transfer described herein, must be received by the
Exchange Agent prior to the Expiration Date or (iii) the Registered Holder must
comply with the guaranteed delivery procedures described herein. See 'The
Exchange Offer.'
NET LOSSES; STOCKHOLDERS' DEFICIENCY
The Company has reported net losses of $141,875,000, $102,117,000,
$82,625,000, $68,181,000 and $78,469,000 for the fiscal years ended May 31,
1997, 1996 and 1995, and the six months ended November 30, 1997 and 1996,
respectively. The Company expects net losses to continue for the foreseeable
future, at least until such time as the operations of its cable television
systems and wireless telephone systems can generate sufficient earnings to
offset the charges, including depreciation and amortization and interest
expense, incurred in connection with such operations and its investments in
plant associated
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with rebuilds and extensions of its cable television systems and expansion of
the wireless telephone system infrastructure.
Reflecting net losses in prior periods, the common stockholders' deficiency
as stated on the Company's unaudited consolidated balance sheet at November 30,
1997 was $676,768,000. The Company's assets, including its cable television
franchises and wireless telephone licenses, are recorded on its balance sheet at
historical cost. The Company believes that the current fair value of such assets
is significantly in excess of their historical cost.
LEVERAGE; CAPITAL REQUIREMENTS
In recent years, the Company and its subsidiaries have incurred substantial
indebtedness in connection with the acquisition, construction and start-up
expenses of wireless telephone systems as well as the acquisition, upgrade and
extension of cable television systems. At November 30, 1997, the Company and its
subsidiaries had long-term debt (exclusive of current maturities of $31,526,000)
of $2,284,405,000, including indebtedness under five credit agreements executed
by subsidiaries of the Company and various banks (the 'Credit Agreements') and
under a note agreement executed by a subsidiary of the Company in December 1992
(the 'Note Agreement'). At November 30, 1997, Centennial Cellular Corp., the
Company's approximately 33% owned subsidiary ('Centennial Cellular'), had an
aggregate of $475,500,000 outstanding principal amount of debt securities.
The cable television and wireless telephone businesses are capital
intensive. While cash generated from operations is expected to fund an
increasing portion of the working capital requirements, capital expenditures and
debt service obligations of the Company and its subsidiaries, the Company will
require additional funds from bank borrowings and other sources. In the past,
the Company has funded the principal obligations on its long-term debt by
refinancing the principal with expanded bank lines of credit. Although to date
the Company has been able to obtain financing on satisfactory terms, there can
be no assurance that this will continue to be the case in the future. The
Company has met and believes, based on current market conditions, that it will
continue to meet its cash obligations with internally generated cash from
operations, along with third party financing, primarily bank borrowings and the
issuance of debt securities to the public, and anticipates that its cable
television operations will continue to meet the debt service obligations under
debt instruments applicable to the cable television operations. Principal
payments are due under the Company's cable operations' and Centennial Cellular's
debt instruments beginning in the fiscal year ending May 31, 2000, except for
principal obligations of approximately $20,000,000 which are due in the fiscal
year ending May 31, 1999 by a joint venture which has cable operations, for
which such joint venture currently has adequate reserves. The Company will need
to refinance certain of such obligations on or before such time and believes,
based on current market conditions, that it will be able to do so. However,
there can be no assurance that the Company will be successful in any such
refinancing or that the terms of any such financing will be favorable to the
Company. The indentures for the Company's outstanding issues of publicly-held
debt (the 'Public Indentures') impose certain restrictions on the incurrence of
additional indebtedness. See 'Restrictive Covenants; Consequences of Default'
below.
On January 7, 1998, the Company filed a registration statement with the
Commission relating to the shelf registration of $500,000,000 of the Company's
debt securities, which registration statement was declared effective by the
Commission on January 28, 1998. This registration statement augments the
remaining $77,000,000 in debt securities available for issuance under a
previously filed registration statement.
For the fiscal year ended May 31, 1997 and the six months ended November
30, 1997, earnings were less than fixed charges by $188,004,000 and $81,284,000,
respectively. See 'Ratio of Earnings to Fixed Charges.' Such amounts reflect
non-cash charges totaling $266,628,000 and $141,072,000 consisting of
depreciation and amortization and subsidiary preferred stock dividends,
respectively.
RESTRICTIVE COVENANTS; CONSEQUENCES OF DEFAULT
The Credit Agreements limit the ability of certain subsidiaries of the
Company to incur additional indebtedness, including intercompany indebtedness,
or liens, to pay dividends to the Company and
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require that certain operating and financial tests be met, including the
maintenance of the ratio of earnings before interest, depreciation and taxes (as
defined in the Credit Agreements, 'EBIDT') to debt service for the Total Debt
(as defined therein) of such subsidiaries, the ratio of Total Debt to EBIDT and
the ratio of EBIDT to interest expense for the Total Debt of such subsidiaries
at certain prescribed levels. Each of these requirements is currently being met.
The Note Agreement imposes similar restrictions and requirements, including the
maintenance of the ratio of Indebtedness to Operating Cash Flow (each as defined
in the Note Agreement) at 4.50 to 1.00 and the ratio of Operating Cash Flow to
Adjusted Debt Service (each as defined in the Note Agreement) at not less than
1.35 to 1.00, with which the Company is presently in compliance. The indentures
governing the Company's public debt also contain various covenants including,
but not limited to, the following: (i) restrictions on mergers, sales and
consolidations, (ii) restrictions on dividends, redemptions or repurchase of the
Company's capital stock or the capital stock of any of its affiliates, (iii)
limitations on transactions with, or investments in, affiliates, (iv)
restrictions on the ability to make loans to, or act as guarantor for, certain
of its subsidiaries and affiliates, which presently consist of those
subsidiaries and affiliates engaged in the wireless telephone and related
businesses, and (v) the maintenance of various financial ratios. The Company is
presently in compliance with each of the foregoing; however, the ability of the
Company and its subsidiaries to comply with such provisions may be affected by
events beyond their control.
In the event of a default under the agreements pursuant to which the
outstanding debt securities of the Company and its subsidiaries are issued, the
holders of such debt or the trustee acting on their behalf could elect to
declare all of such debt securities, together with accrued interest, to be due
and payable. Under certain of such agreements, the creditors would also have
other remedies available, including foreclosure on the capital stock of the
Company's subsidiaries which is pledged to secure such debt. In addition, in the
event of a default under the indentures governing the Company's public debt, the
Company would be prohibited from making any payments on any Senior Subordinated
Debt Securities (as defined herein) or Subordinated Debt Securities (as defined
herein) until all debt senior thereto was paid in full. There can be no
assurance that the assets of the Company would be sufficient to repay all such
senior debt and any Senior Subordinated Debt Securities and Subordinated Debt
Securities then outstanding.
Management believes that the Company is not presently at risk of
noncompliance with any of the covenants described above. However, there can be
no assurance that this will continue to be the case.
CONTROL BY CERTAIN STOCKHOLDERS
The ownership interest in the Company of Leonard Tow and certain trusts for
the benefit of members of his family (the 'Tow Trusts'), constituting
approximately 90.61% of the combined voting power of both the Class A Common
Stock and the Class B Common Stock of the Company at February 27, 1998, gives
them the power to elect all but one member of the Board of Directors of the
Company and to control the vote on all other matters submitted to a vote of the
Company's stockholders.
Under certain of the Credit Agreements, an event of default occurs if
Leonard Tow and/or members of his immediate family or the Tow Trusts cease to
own, in the aggregate, stock of the Company having at least a majority of the
combined voting power of both classes of Common Stock of the Company.
RECOVERY OF AUSTRALIAN INVESTMENT
Since fiscal 1994, the Company has invested, through a wholly-owned
subsidiary, approximately $151,000,000 in the Australian Pay TV industry,
including approximately $126,000,000 in East Coast Pay Television Pty Limited,
an Australian company ('ECT'). ECT has certain distribution, infrastructure
utilization and franchise agreements with Australis Media Limited ('Australis'),
another pay television company in Australia. As of the fiscal year ended May 31,
1997, the Company had written down $50,000,000 of its Australian investment.
Additionally, in light of recent announcements by Australis relating to
Australis' deteriorating financial condition and Australis' aborted business
combination with
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Foxtel (a competitive pay television provider in Australia), ECT wrote down the
remaining net book value of certain of its intangible assets during the six
months ended November 30, 1997. As a result, the Company's consolidated
financial statements reflect a writedown of approximately $17,100,000 relating
to these intangible assets, net of a gain of approximately $4,300,000 related to
the sale of certain of ECT's assets during the quarter ended November 30, 1997.
The Company is pursuing a strategy to sell its investments in its
Australian interests and has retained an investment banker with respect thereto.
Once the Company has developed its formal plan for disposition, including the
means to complete that plan and the period expected to be required for
completion of the disposition, the Company anticipates accounting for its
Australian operations as discontinued operations.
The Company is currently unable to predict the ultimate resolution of these
matters. At November 30, 1997, the Company's investments in the various aspects
of the Australian pay television industry have been fully written-down as a
result of the aforementioned write-downs of Australian assets and the Company's
percentage of cumulative losses of ECT and XYZ Entertainment Pty Limited, an
Australian programming company.
FOREIGN CURRENCY EXCHANGE RATE RISKS: HEDGING
The Company's monetary assets and liabilities are subject to foreign
currency exchange risk as certain equipment purchases and payments for certain
operating expenses, such as programming expenses, are denominated in currencies
other than their own functional currency. In addition, certain of the Company's
Australian subsidiaries have notes payable and notes receivable which are
denominated in a currency other than their own functional currency or
intercompany loans payable linked to the U.S. dollar.
In general, the Company does not execute hedge transactions to reduce its
exposure to foreign currency exchange rate risks. Accordingly, the Company may
experience economic loss and a negative impact on earnings with respect to its
holdings solely as a result of foreign currency exchange rate fluctuations,
which include foreign currency devaluations against the dollar. The Company may
also experience economic loss and a negative impact on earnings related to these
monetary assets and liabilities. In general, exchange rate risk to the Company's
commitments for equipment purchases and operating expenses is generally limited
due to the insignificance of the related monetary asset and liability balances;
however, exchange rate risk to the Company of these notes payable and notes
receivable and debt linked to the U.S. dollar have and will continue to impact
its reported earnings.
STOCK PURCHASE
In October 1992, the Company's Board of Directors authorized the purchase
of up to 2,000,000 shares of its Class A Common Stock in the open market and in
privately negotiated transactions, depending on prevailing market conditions.
During August 1997, the Company announced that its Board of Directors authorized
the purchase in the open market and in privately negotiated transactions, from
time to time, of up to 5,000,000 additional shares of Class A Common Stock,
depending on prevailing market conditions. The Company purchased 171,500 shares
of its Class A Common Stock in the open market for a purchase price of $660,000
during the fourth quarter of fiscal 1997. During the six months ended November
30, 1997, the Company purchased 1,929,500 additional shares of Class A Common
Stock in the open market for an aggregate purchase price of $11,913,000.
Subsequent to November 30, 1997, the Company purchased 30,000 shares of Class A
Common Stock in the open market for an aggregate purchase price of $238,000.
These shares purchased in fiscal 1997 and 1998 have been accounted for as
treasury shares during the respective fiscal years. As of February 27, 1998, the
Company is authorized to purchase 4,869,000 shares of Class A Common Stock after
giving effect to the shares purchased to date.
RISK ASSOCIATED WITH YEAR 2000
The Company is currently in the process of evaluating its computer software
and data bases to determine whether modifications will be required to prevent
problems related to the Year 2000,
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including its billing and collection activities. These problems, which have been
widely reported in the media, could cause malfunctions in certain software and
data bases with respect to dates on or about 2000. Most of the Company's
customer related computer systems and data bases are managed by third parties
under contractual arrangements. The Company has requested that such third
parties advise the Company as to whether or not they anticipate any difficulties
for clients in addressing Year 2000 problems and, if so, whether or not the
Company would be adversely affected by any of such problems. Until such time as
its service providers respond to the Company, the impact of Year 2000 on the
Company's future operations and financial condition cannot be assessed. The
Company will continue to monitor the impact on the Company of problems related
to the Year 2000 and will work with its service providers to remedy problems
that arise.
REGULATION
The Telecommunications Act of 1996 (the '1996 Act') alters federal, state
and local laws and regulations regarding telecommunications providers and
services, including the cable television industry. The 1996 Act deregulates
(except for basic services) cable service rates over a three-year period.
Implementing regulations of the 1996 Act are currently being written. The effect
that the 1996 Act will have on the Company's cable television business cannot be
determined at this time.
ORIGINAL ISSUE DISCOUNT CONSEQUENCES
The Existing Notes were issued at a substantial discount from their
principal amount at maturity. Although cash interest will not be paid on the
Notes, original issue discount (generally the difference between the 'stated
redemption price at maturity' and the 'issue price' of the Notes, as such terms
are defined in the Internal Revenue Code of 1986, as amended, and the Treasury
Regulations thereunder) will accrete on the Notes from the issue date of the
Notes up to the maturity date. Consequently, holders of the Notes may be
required to include amounts attributable to such original issue discount in
gross income for United States federal income tax purposes in advance of their
receipt of the cash payments to which the income is attributable. See 'Certain
Federal Income Tax Considerations' for a more detailed discussion of the federal
income tax consequences of the purchase, ownership and disposition of the Notes.
ABSENCE OF PUBLIC MARKET FOR NOTES
The Notes are a new issue of securities for which there is currently no
trading market. The Company does not intend to apply for listing of the Notes on
a national securities exchange or quotation of the Notes on the Nasdaq National
Market. The Initial Purchaser had advised the Company that it intended to make a
market in the Existing Notes, although the Initial Purchaser was not obligated
to do so, and any such market making with respect to the Notes may be
discontinued at any time without notice. Accordingly, there can be no assurance
as to the development or liquidity of any market that may develop for the Notes,
the ability of the holders of the Notes to sell their Notes or the price at
which such holders would be able to sell their Notes. If a market were to exist,
the Notes could trade at prices that may be lower than the initial offering
price of the Existing Notes, depending on many factors, including prevailing
interest rates and the markets for similar securities, general economic
conditions and the financial condition and performance of, and prospects for,
the Company. See 'Plan of Distribution.'
RATIO OF EARNINGS TO FIXED CHARGES
For the purposes of calculating the ratio of earnings to fixed charges,
earnings consist of the amount of fixed charges plus earnings before income
taxes and extraordinary items. Fixed charges consist of interest, including
amortization of debt issue costs and capitalized interest, subsidiary preferred
stock dividends, and the portion of rent deemed representative of the interest
factor. For the fiscal years ended May 31, 1993, 1994, 1995, 1996 and 1997 and
the six months ended November 30, 1997, earnings as defined were less than fixed
charges by approximately $68,553,000, $66,088,000, $114,448,000, $154,316,000,
$188,004,000 and $81,284,000, respectively. The increased deficiency of
16
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<PAGE>
earnings to fixed charges reflects higher levels of interest expense as a result
of increased borrowings incurred to finance acquisitions, capital expenditures,
working capital requirements, debt service and increases in non-cash
depreciation and amortization expense related to acquisitions and capital
expenditures. See 'Risk Factors -- Leverage; Capital Requirements.'
USE OF PROCEEDS
The Exchange Offer is intended to satisfy certain of the Company's
Obligations under the Registration Rights Agreement. The Company will not
receive any cash proceeds from the issuance of the New Notes offered hereby. In
consideration for issuing the New Notes as contemplated in this Prospectus, the
Company will receive in exchange Existing Notes in like principal amount at
maturity, the terms of which are the same in all material respects as the form
and terms of the New Notes, except that the New Notes have been registered under
the Securities Act and will not contain terms restricting the transfer thereof
and will not contain certain provisions providing for payment of liquidated
damages on the Existing Notes under certain circumstances relating to the
Registration Rights Agreement. The net proceeds received by the Company from the
sale of the Existing Notes were $245,605,712, after deducting expenses payable
by the Company of approximately $500,000. The Company applied $96,000,000 of the
net proceeds from the sale of the Existing Notes to repay temporarily a portion
of the long-term debt outstanding under two credit agreements executed by
subsidiaries of the Company and various banks (the 'Cable Operations' Credit
Agreements'). The remainder of the net proceeds are to be used for capital
expenditures, operations, acquisitions and other investments that would
otherwise have been paid for under the Cable Operations' Credit Agreements.
17
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<PAGE>
SELECTED FINANCIAL INFORMATION
The selected Statement of Operations Data and Balance Sheet Data set forth
below as of and for the five years ended May 31, 1997 has been derived from the
Company's audited consolidated financial statements. Such information should be
read in conjunction with, and is qualified in its entirety by, the consolidated
financial statements and notes thereto incorporated into the accompanying
Prospectus by reference to the Company's Annual Report on Form 10-K for the
fiscal year ended May 31, 1997. The selected consolidated financial information
set forth below for the six months ended November 30, 1997 and 1996,
respectively, has been derived from the Company's unaudited consolidated
financial statements which, in the opinion of management, reflect all
adjustments (consisting only of normal recurring adjustments) necessary for a
fair presentation of interim data.
<TABLE>
<CAPTION>
SIX MONTHS ENDED
FISCAL YEARS ENDED MAY 31, NOVEMBER 30,
---------------------------------------------------------- --------------------
1993 1994 1995 1996 1997 1997 1996
-------- -------- -------- --------- --------- -------- --------
(IN THOUSANDS, EXCEPT PER SHARE DATA) (UNAUDITED)
<S> <C> <C> <C> <C> <C> <C> <C>
STATEMENT OF OPERATIONS
DATA:
Revenue............ $345,131 $374,599 $416,687 $ 495,274 $ 643,490 $372,117 $312,000
-------- -------- -------- --------- --------- -------- --------
Cost of services,
selling, general
and
administrative
expenses......... 151,742 165,500 214,054 228,182 305,379 181,639 141,003
Regulatory
restructuring
charge........... -- -- 4,000 -- -- -- --
Depreciation and
amortization..... 138,547 151,296 171,931 216,777 261,778 138,554 125,632
Australian
operations....... -- -- -- 24,067 30,562 18,689 14,564
Write-down of
Australian
assets........... -- -- -- 10,000 40,000 12,814 40,000
-------- -------- -------- --------- --------- -------- --------
Operating income
(loss)........... 54,842 57,803 26,702 16,248 5,771 20,421 (9,199)
Interest expense... 112,294 121,698 139,001 172,215 200,743 106,916 97,527
Other(1)........... (19,661) (21,968) (29,674) (53,850) (60,679) (18,314) (28,257)
Extraordinary
item -- loss on
early retirement
of debt(4)....... -- -- -- -- 7,582 -- --
-------- -------- -------- --------- --------- -------- --------
Net loss........... $(37,791) $(41,927) $(82,625) $(102,117) $(141,875) $(68,181) $(78,469)
-------- -------- -------- --------- --------- -------- --------
-------- -------- -------- --------- --------- -------- --------
Net loss per common
share............ $ (.49) $ (.53) $ (1.01) $ (1.44) $ (1.96) $ (.94) $ (1.09)
-------- -------- -------- --------- --------- -------- --------
-------- -------- -------- --------- --------- -------- --------
Dividend on
subsidiary
convertible
redeemable
preferred
stock............ $ 5,883 $ 5,838 $ 4,419 $ 4,256 $ 4,850 $ 2,518 $ 2,349
-------- -------- -------- --------- --------- -------- --------
-------- -------- -------- --------- --------- -------- --------
Loss applicable to
common shares.... $(43,674) $(47,765) $(87,044) $(106,373) $(146,725) $(70,699) $(80,818)
-------- -------- -------- --------- --------- -------- --------
-------- -------- -------- --------- --------- -------- --------
Ratio of Earnings
to Fixed
Charges(5)....... $ -- $ -- $ -- $ -- $ -- $ -- $ --
-------- -------- -------- --------- --------- -------- --------
-------- -------- -------- --------- --------- -------- --------
</TABLE>
<TABLE>
<CAPTION>
AS OF MAY 31, AS OF NOVEMBER 30,
------------------------------------------------------------------ ------------------------
1993 1994 1995 1996 1997 1997 1996
---------- ---------- ---------- ---------- ---------- ---------- ----------
(DOLLARS IN THOUSANDS) (UNAUDITED)
<S> <C> <C> <C> <C> <C> <C> <C>
BALANCE SHEET DATA:
Total assets....... $1,303,484 $1,350,426 $2,004,417 $2,234,909 $2,154,231 $2,175,101 $2,173,121
Long-term debt..... 1,167,423 1,270,989 1,741,143 2,081,611 2,186,981 2,284,405 2,104,524
Common
stockholders'
deficiency....... (215,238) (243,628) (351,645) (448,013) (598,643) (676,768) (521,124)
</TABLE>
- ------------
(1) Other is comprised primarily of provision (benefit) for income taxes
computed in accordance with Financial Accounting Standards Board Statement
('SFAS') No. 96 'Accounting for Income Taxes' effective May 31, 1993, SFAS
No. 109 'Accounting for Income Taxes', the loss attributable to minority
partners, gain on sale of assets, the early termination of certain interest
rate hedge agreements in 1993 related to the refinancing of one of the
Company's bank credit agreements and the subsequent reduction of floating
rate debt to which such agreements were matched.
(2) 'Net pops' means the population of a wireless telephone market, based upon
the 1990 Census Report of the Bureau of the Census, United States Department
of Commerce, multiplied by Centennial Cellular's percentage ownership
interest in an entity licensed by the Federal Communications Commission to
construct or operate a wireless telephone system in that market.
(3) Net pops and subscribers of Domestic Wireless Telephone Systems have been
adjusted to reflect, retroactive to 1992, systems exchanged and disposed of.
(4) Net of income tax benefit of $5,379.
(5) The ratio of earnings to fixed charges is less than one-to-one and,
therefore, earnings are inadequate to cover fixed charges.
18
<PAGE>
<PAGE>
<TABLE>
<CAPTION>
AS OF MAY 31,
--------------------------------------------------------------
1993 1994 1995 1996 1997
--------- --------- --------- --------- ----------
<S> <C> <C> <C> <C> <C>
CABLE SUBSCRIBER DATA:
Homes passed............................... 1,650,900 1,675,000 1,790,000 2,060,000 2,245,000
Basic subscribers.......................... 934,000 945,000 1,100,000 1,250,000 1,273,000
Penetration................................ 56.6% 56.4% 61.5% 60.7% 56.7%
WIRELESS POPS AND SUBSCRIBER DATA(2)(3):
Net pops of Domestic Wireless Telephone
Systems and Puerto Rico Wireless
Telephone System......................... 2,465,247 3,310,100 8,290,600 8,880,900 9,019,300
Net pops of minority owned systems......... 1,052,200 1,079,400 1,079,400 1,100,800 1,100,800
--------- --------- --------- --------- ----------
Total Net Pops........................ 3,517,447 4,389,500 9,370,000 9,981,700 10,120,100
--------- --------- --------- --------- ----------
--------- --------- --------- --------- ----------
Subscribers of Domestic Wireless Telephone
Systems and Puerto Rico Wireless
Telephone System......................... 33,600 49,040 85,920 135,000 203,900
Pro rata share of subscribers of minority
owned systems............................ 30,520 42,000 57,900 83,000 105,000
--------- --------- --------- --------- ----------
Total subscribers.......................... 64,120 91,040 143,820 218,000 308,900
--------- --------- --------- --------- ----------
--------- --------- --------- --------- ----------
</TABLE>
19
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<PAGE>
THE EXCHANGE OFFER
PURPOSE AND EFFECT OF THE EXCHANGE OFFER
Exchange Offer Registration Statement. Pursuant to the Initial Offering,
the Company sold the Existing Notes to the Initial Purchaser on January 15,
1998. The Initial Purchaser has advised the Company that it subsequently resold
the Existing Notes to 'qualified institutional buyers' in reliance on Rule 144A
under the Securities Act and pursuant to Regulation S under the Securities Act.
As a condition to the Initial Offering, the Company entered into the
Registration Rights Agreement, pursuant to which the Company agreed, for the
benefit of all Registered Holders of the Existing Notes, at the Company's
expense, (i) to file the Registration Statement with the Commission within 90
days after the Initial Issue Date with respect to the Exchange Offer of the
Existing Notes for the New Notes, (ii) to use its best efforts to cause the
Registration Statement to be declared effective under the Securities Act within
180 days after the Initial Issue Date, (iii) to use its best efforts to keep the
Registration Statement effective until the closing of the Exchange Offer and
(iv) to use its best efforts to cause the Exchange Offer to be consummated
within 210 days after the Initial Issue Date. The Company also agreed that
promptly upon the Registration Statement being declared effective, the Company
would offer to all Registered Holders of the Existing Notes an opportunity to
exchange the Existing Notes for the New Notes. Further, the Company agreed that
the Company would keep the Exchange Offer open for acceptance for not less than
20 Business Days, as such term is defined in Section 14(d) under the Exchange
Act (or longer if required by applicable law), after the date notice of the
Exchange Offer is mailed to the Registered Holders of Existing Notes. For each
Existing Note validly tendered to the Company pursuant to the Exchange Offer and
not withdrawn by the Registered Holder thereof, the Registered Holder of such
Existing Note will receive a New Note having a principal amount at maturity
equal to that of the tendered Existing Note.
The summary herein of certain provisions of the Registration Rights
Agreement does not purport to be complete and is subject to, and is qualified in
its entirety by reference to, all the provisions of the Registration Rights
Agreement, a copy of which has been filed as an exhibit to the Registration
Statement of which this Prospectus is a part. The Exchange Offer is intended to
satisfy certain of the Company's obligations under the Registration Rights
Agreement.
Transferability. The Existing Notes were issued and sold on January 15,
1998 in a transaction exempt from the registration requirements of the
Securities Act and applicable state securities laws and may not be offered or
sold in the United States unless so registered or pursuant to an applicable
exemption under the Securities Act and applicable state securities laws. The New
Notes are being offered hereunder in order to satisfy certain obligations of the
Company contained in the Registration Rights Agreement. Based on no-action
letters issued by the Staff of the Commission to third parties with respect to
similar transactions, including Exxon Capital, Morgan Stanley and similar
letters, the Company believes that the New Notes issued pursuant to the Exchange
Offer in exchange for Existing Notes may be offered for resale, resold and
otherwise transferred by holders thereof (other than any such holder that is an
Affiliate of the Company) without further compliance with the registration and
prospectus delivery requirements of the Securities Act, provided that such New
Notes are acquired in the ordinary course of such holders' business and such
holders are not engaged in, have no arrangement or understanding with any person
to participate in, and do not intend to engage in, any distribution of the New
Notes. However, the Company has not sought a no-action letter with respect to
the Exchange Offer and there can be no assurance that the Staff of the
Commission would make a similar determination with respect to the Exchange
Offer. Each holder of Existing Notes, other than a broker-dealer, must
acknowledge that it is not engaged in, has no arrangement or understanding with
any person to participate in and does not intend to engage in a distribution of
New Notes. Any holder who tenders in the Exchange Offer for the purpose of
participating in a distribution of New Notes (i) cannot rely on such an
interpretation by the Staff of the Commission, (ii) will not be able to validly
tender Existing Notes in the Exchange Offer and (iii) must comply with the
registration and prospectus delivery requirements of the Securities Act in
connection with any secondary resale transactions.
In addition, each broker-dealer that receives New Notes for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such New Notes. The Letter of
Transmittal accompanying this Prospectus states that by so acknowledging
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<PAGE>
<PAGE>
and by delivering a prospectus, a broker-dealer will not be deemed to admit that
it is acting in the capacity of an 'underwriter' within the meaning of Section
2(11) of the Securities Act. This Prospectus, as it may be amended or
supplemented from time to time, may be used by a broker-dealer in connection
with resales of New Notes received in exchange for Existing Notes where such
Existing Notes were acquired by such broker-dealer as a result of market-making
activities or other trading activities. Pursuant to the Registration Rights
Agreement, the Company has agreed that it will make this Prospectus available to
any broker-dealer for use in connection with any such resale.
Shelf Registration Statement. If any changes in law or the applicable
interpretations of the Staff of the Commission do not permit the Company to
effect the Exchange Offer, if for any other reason the Exchange Offer is not
consummated within 210 days after the Initial Issue Date, or if the Initial
Purchaser so requests with respect to Existing Notes not eligible to be
exchanged for New Notes in the Exchange Offer or upon the request of a
Registered Holder that is not permitted by applicable law to participate in the
Exchange Offer or elects to participate in the Exchange Offer but does not
receive fully tradeable New Notes pursuant to the Exchange Offer, the Company
will use its best efforts to file prior to the later of, at the Company's cost,
(a) 60 days after the Initial Issue Date or (b) 30 days after such filing
obligation arises and use its best efforts to cause the Shelf Registration
Statement to be declared effective by the Commission on or prior to 60 days
after such obligation arises; provided, however, that if the Company has not
consummated the Exchange Offer within 210 days of the Initial Issue Date, then
the Company will file the Shelf Registration Statement with the Commission on or
prior to the 240th day after the Initial Issue Date. The Company shall use its
best efforts to keep the Shelf Registration Statement effective until the second
anniversary of the effective date of the Shelf Registration Statement (or, for
such shorter period, when all of the Notes covered by the Shelf Registration
Statement have been sold pursuant thereto). The Company will, in the event of
the filing of the Shelf Registration Statement, provide to each holder of the
Notes copies of the prospectus which is a part of the Shelf Registration
Statement, notify each such holder when the Shelf Registration Statement for the
Existing Notes has become effective and take certain other actions as are
required to permit unrestricted resales of the Existing Notes. A Registered
Holder of Existing Notes who sells such Existing Notes pursuant to the Shelf
Registration Statement generally will be required to be named as a selling
security-holder in the related prospectus and to deliver the prospectus to
purchasers, will be subject to certain of the civil liability provisions under
the Securities Act in connection with such sales and will be bound by the
provisions of the Registration Rights Agreement which are applicable to such a
Registered Holder (including certain indemnification obligations).
Liquidated Damages. If (i) the Company fails to file any of the
registration statements required by the Registration Rights Agreement on or
before the date specified for such filing, (ii) any of such registration
statement is not declared effective by the Commission on or prior to the date
specified for such effectiveness (the 'Effectiveness Target Date'), (iii) the
Exchange Offer is required to be consummated under the Registration Rights
Agreement and the Company fails to issue New Notes in exchange for all Existing
Notes properly tendered and not withdrawn in the Exchange Offer within 45 days
of the Effectiveness Target Date with respect to this Registration Statement, or
(iv) the Shelf Registration Statement or the Registration Statement is declared
effective but thereafter ceases to be effective or usable in connection with the
Exchange Offer or resales of Transfer Notes, as the case may be, during the
periods specified in the Registration Rights Agreement (each such event referred
to in clauses (i) through (iv) above, a 'Registration Default'), then the
Company must pay as liquidated damages interest on the Notes as to which the
Registration Default exists as set forth herein. If a Registration Default
exists with respect to the Notes the Company will, with respect to the first
90-day period (or portion thereof) while a Registration Default is continuing
immediately following the occurrence of such Registration Default, make such
cash payments at a rate of .25% multiplied by the Accreted Value of such Notes
as of the date such payment is required to be made. The rate of such cash
payment set forth in the preceding sentence shall increase by an additional .25%
per annum at the beginning of each subsequent 90-day period (or portion thereof)
while a Registration Default is continuing until all Registration Defaults have
been cured, up to a maximum rate of 1.00% per annum. Upon (w) the filing of the
applicable registration statement (in the case of clause (i) of the preceding
sentence), (x) the effectiveness of the applicable registration statement (in
the case of clause (ii) of the preceding sentence), (y) the issuance of New
Notes in exchange for all Notes properly tendered and
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<PAGE>
<PAGE>
now withdrawn in the Exchange Offer (in the case of clause (iii) of the
preceding sentence) or (z) the effectiveness of the Registration Statement or
the Shelf Registration Statement, as the case may be, which had ceased to be
effective (in the case of clause (iv) of the preceding sentence), liquidated
damages as a result of the Registration Default described in such clause shall
cease to accrue (but any accrued amount shall be payable) and the interest rate
on the Notes will revert to zero if no other Registration Default has occurred
and is continuing.
TERMS OF THE EXCHANGE OFFER
Upon satisfaction or waiver of all of the conditions of the Exchange Offer,
the Company will accept, promptly after the Expiration Date, all Existing Notes
properly tendered and will issue the New Notes promptly after acceptance of the
Existing Notes. See ' -- Conditions to the Exchange Offer' and 'Procedures for
Tendering Existing Notes.' The Company will issue $1,000 principal amount at
maturity of New Notes in exchange for each $1,000 principal amount at maturity
of outstanding Existing Notes accepted in the Exchange Offer. As of the date of
this Prospectus, $605,000,000 aggregate principal amount at maturity of the
Existing Notes are outstanding. Registered Holders may tender some or all of
their Existing Notes pursuant to the Exchange Offer. However, Existing Notes may
be tendered only in integral multiples of $1,000.
The form and terms of the New Notes are the same as the form and terms of
the Existing Notes except that the New Notes will not contain certain terms with
respect to transfer restrictions (which related to the status of the Existing
Notes as unregistered securities), registration rights or payment of liquidated
damages relating to the Company's failure to meet specified milestones with
respect to such registration rights, all as described in the Registration Rights
Agreement. See ' -- Purpose and Effect of the Exchange Offer.' The New Notes
will evidence the same debt as the Existing Notes and will be issued pursuant
to, and entitled to the benefits of, the Indenture pursuant to which the
Existing Notes were issued and will be deemed one issue of Notes, together with
the Existing Notes.
This Prospectus, together with the Letter of Transmittal, is being sent to
all Registered Holders and to others believed to have beneficial interests in
the Existing Notes. Registered Holders of Existing Notes do not have any
appraisal or dissenters' rights under the Business Corporations Act of the State
of New Jersey in connection with the Exchange Offer. The Company intends to
conduct the Exchange Offer in accordance with the applicable requirements of the
Securities Act, the Exchange Act and the rules and regulations of the Commission
promulgated thereunder.
For purposes of the Exchange Offer, the Company shall be deemed to have
accepted validly tendered Existing Notes when, as and if the Company has given
oral or written notice thereof to the Exchange Agent. The Exchange Agent will
act as agent for the tendering Registered Holders for the purpose of receiving
the New Notes from the Company. If any tendered Existing Notes are not accepted
for exchange because of an invalid tender, the occurrence of certain other
events set forth herein or otherwise, such unaccepted Existing Notes will be
returned, without expense, to the Tendering Holder thereof as promptly as
practicable after the Expiration Date.
Registered Holders who tender Existing Notes in the Exchange Offer will not
be required to pay brokerage commissions or fees or, except as set forth below
under ' -- Transfer Taxes,' transfer taxes with respect to the exchange of
Existing Notes pursuant to the Exchange Offer. The Company will pay all charges
and expenses, other than certain applicable taxes, in connection with the
Exchange Offer. See ' -- Fees and Expenses' below.
EXPIRATION DATE; EXTENSIONS; AMENDMENTS
The term 'Expiration Date' shall mean 5:00 p.m., New York City time, on
, 1998, unless the Company, in its sole discretion, extends the
Exchange Offer, in which case the term 'Expiration Date' shall mean the latest
date and time to which the Exchange Offer is extended. In order to extend the
Exchange Offer, the Company will notify the Exchange Agent by oral or written
notice and each registered holder by means of press release or other public
announcement of any extension, in each case, prior to 9:00 a.m., New York City
time, on the next Business Day after the previously scheduled Expiration Date.
The Company reserves the right, in its sole discretion, (i) to delay accepting
any
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<PAGE>
Existing Notes, to extend the Exchange Offer or, if any of the conditions set
forth below under ' -- Conditions' shall not have been satisfied, to terminate
the Exchange Offer, by giving oral or written notice of such delay, extension or
termination to the Exchange Agent, or (ii) to amend the terms of the Exchange
Offer in any manner. The Company will notify the Exchange Agent and each
registered holder of any amendment by oral or written notice. The Company will
give to the Exchange Agent written confirmation of any oral notice.
EXCHANGE DATE
As soon as practicable after the close of the Exchange Offer (the 'Exchange
Date'), the Company will accept for exchange all Existing Notes properly
tendered and not validly withdrawn prior to 5:00 p.m., New York City time, on
the Expiration Date pursuant to the Exchange Offer in accordance with the terms
of the Registration Statement and the Letters of Transmittal.
CONDITIONS TO THE EXCHANGE OFFER
Notwithstanding any other provisions of the Exchange Offer, and subject to
its obligations pursuant to the Registration Rights Agreement, the Company shall
not be required to accept for exchange, or to issue New Notes in exchange for,
any Existing Notes and may terminate or amend the Exchange Offer, if at any time
before the acceptance of such New Notes for exchange, any of the following
events shall occur:
(i) any injunction, order or decree shall have been issued by any
court or any governmental agency that would prohibit, prevent or otherwise
materially impair the ability of the Company to proceed with the Exchange
Offer; or
(ii) the Exchange Offer shall violate any applicable law or any
applicable interpretation of the staff of the Commission.
The foregoing conditions are for the sole benefit of the Company and may be
asserted by the Company regardless of the circumstances giving rise to any such
condition or may be waived by the Company in whole or in part at any time and
from time to time in its sole discretion. The failure by the Company at any time
to exercise any of the foregoing rights shall not be deemed a waiver of any such
right and such right shall be deemed an ongoing right which may be asserted at
any time and from time to time.
In addition, the Company will not accept for exchange any Existing Notes
tendered, and no New Notes will be issued in exchange for any such Existing
Notes, if at such time any stop order shall be threatened by the Commission or
be in effect with respect to the Registration Statement of which this Prospectus
is a part or the qualification of the Indenture under the Trust Indenture Act of
1939, as amended.
The Exchange Offer is not conditioned on any minimum aggregate principal
amount of Existing Notes being tendered for exchange.
CONSEQUENCES OF FAILURE TO EXCHANGE
Any Existing Notes not tendered pursuant to the Exchange Offer will remain
outstanding. Such Existing Notes will remain 'restricted securities' (within the
meaning of the Securities Act). Accordingly, prior to the date that is two years
after the later of the Initial Issue Date thereof and the last date on which the
Company or any Affiliate of the Company was the owner of such Existing Notes
(the 'Resale Restriction Termination Date'), such Existing Notes may be resold
only (i) to the Company, (ii) to a person whom the seller reasonably believes is
a 'qualified institutional buyer' purchasing for its own account or for the
account of another 'qualified institutional buyer' in compliance with the resale
limitations of Rule 144A, (iii) to an 'institutional accredited investor' that,
prior to such transfer, furnishes to the Trustee a written certification
containing certain representations and agreements relating to the restrictions
on transfer of the Notes (the form of which letter can be obtained from the
Trustee), (iv) pursuant to the limitations on resale provided by Rule 144 under
the Securities Act (if available), (v) pursuant to the resale provisions of Rule
904 of Regulation S under the
23
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<PAGE>
Securities Act, (vi) pursuant to an effective registration statement under the
Securities Act, or (vii) pursuant to any other available exemption from the
registration requirements of the Securities Act, subject in each of the
foregoing cases to compliance with applicable state securities laws. As a
result, the liquidity of the market for such non-tendered Existing Notes could
be adversely affected upon completion of the Exchange Offer. The foregoing
restrictions on resale will not apply subsequent to the Resale Restriction
Termination Date.
FEES AND EXPENSES
The Company will not make any payments to brokers, dealers or others
soliciting acceptances of the Exchange Offer. The principal solicitation is
being made by mail; however, additional solicitations may be made in person or
by telephone by officers and employees of the Company.
The expenses of the Company to be incurred in connection with the Exchange
Offer, including the registration fee, will be paid by the Company and are
estimated in the aggregate to be approximately $150,000 which includes the fees
and expenses of the Trustee and the Exchange Agent, accounting and legal fees
and other miscellaneous fees and expenses.
ACCOUNTING TREATMENT
The Company will not recognize any gain or loss for accounting purposes
upon the consummation of the Exchange Offer. The expenses of the Exchange Offer
will be amortized by the Company over the term of the New Notes.
PROCEDURES FOR TENDERING EXISTING NOTES
TENDERING EXISTING NOTES
The tender of Existing Notes pursuant to any of the procedures set forth in
this Prospectus and in the Letter of Transmittal will constitute a binding
agreement between the Tendering Holder and the Company in accordance with the
terms and subject to the conditions set forth herein and in the Letter of
Transmittal. The tender of Existing Notes will constitute an agreement to
deliver good and marketable title to all tendered Existing Notes prior to the
Expiration Date free and clear of all liens, charges, claims, encumbrances,
interests and restrictions of any kind.
EXCEPT AS PROVIDED IN ' -- GUARANTEED DELIVERY PROCEDURES,' UNLESS THE
EXISTING NOTES BEING TENDERED ARE DEPOSITED BY THE REGISTERED HOLDER WITH THE
EXCHANGE AGENT PRIOR TO THE EXPIRATION DATE (ACCOMPANIED BY A PROPERLY COMPLETED
AND DULY EXECUTED LETTER OF TRANSMITTAL), THE COMPANY MAY, AT ITS OPTION, REJECT
SUCH TENDER. ISSUANCE OF NEW NOTES WILL BE MADE ONLY AGAINST DEPOSIT OF TENDERED
EXISTING NOTES AND DELIVERY OF ALL OTHER REQUIRED DOCUMENTS. NOTWITHSTANDING THE
FOREGOING, DTC PARTICIPANTS TENDERING THROUGH ATOP WILL BE DEEMED TO HAVE MADE
VALID DELIVERY WHERE THE EXCHANGE AGENT RECEIVES AN AGENT'S MESSAGE (DEFINED
BELOW) PRIOR TO THE EXPIRATION DATE.
Accordingly, to properly tender Existing Notes, the following procedures
must be followed:
Notes held through a Custodian. Each Beneficial Owner holding Existing
Notes through a DTC Participant must instruct such DTC Participant to cause
its Existing Notes to be tendered in accordance with the procedures set
forth in this Prospectus.
Notes held through DTC. Pursuant to an authorization given by DTC to
the DTC Participants, each DTC Participant holding Existing Notes through
DTC must (i) electronically transmit its acceptance through ATOP, and DTC
will then edit and verify the acceptance, execute a book-entry delivery to
the Exchange Agent's account at DTC and send an Agent's Message to the
Exchange Agent for its acceptance, or (ii) comply with the guaranteed
delivery procedures set forth below and in the Notice of Guaranteed
Delivery. See ' -- Guaranteed Delivery Procedures -- Notes held through
DTC.'
24
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The Exchange Agent will (promptly after the date of this Prospectus)
establish accounts at DTC for purposes of the Exchange Offer with respect to
Existing Notes held through DTC, and any financial institution that is a DTC
Participant may make book-entry delivery of interests in Existing Notes into the
Exchange Agent's account through ATOP. However, although delivery of interests
in the Existing Notes may be effected through book-entry transfer into the
Exchange Agent's account through ATOP, an Agent's Message in connection with
such book-entry transfer, and any other required documents, must be, in any
case, transmitted to and received by the Exchange Agent at its address set forth
under ' -- Exchange Agent', or the guaranteed delivery procedures set forth
below must be complied with, in each case, prior to the Expiration Date.
Delivery of documents to DTC does not constitute delivery to the Exchange Agent.
The confirmation of a book-entry transfer into the Exchange Agent's account at
DTC as described above is referred to herein as a 'Book-Entry Confirmation.'
The term 'Agent's Message' means a message transmitted by DTC to, and
received by, the Exchange Agent and forming a part of the Book-Entry
Confirmation, which states that DTC has received an express acknowledgment from
each DTC Participant tendering through ATOP that such DTC Participants have
received a Letter of Transmittal and agree to be bound by the terms of the
Letter of Transmittal and that the Company may enforce such agreement against
such DTC Participants.
Cede & Co., as the holder of the Rule 144A Global Note, will tender a
portion of the Rule 144A Global Note equal to the aggregate principal amount due
at the stated maturity for which instructions to tender are given by DTC
Participants.
Notes held by Registered Holders. Each Registered Holder must (i) complete
and sign the accompanying Letter of Transmittal, and mail or deliver such Letter
of Transmittal, and any other documents required by the Letter of Transmittal,
together with certificate(s) representing all tendered Existing Notes, to the
Exchange Agent at its address set forth under ' -- Exchange Agent,' or (ii)
comply with the guaranteed delivery procedures set forth below and in the Notice
of Guaranteed Delivery. See ' -- Guaranteed Delivery Procedures -- Notes held by
Registered Holders.'
All signatures on a Letter of Transmittal must be guaranteed by a
recognized participant in the Securities Transfer Agents Medallion Program, the
New York Stock Exchange ('NYSE') Medallion Signature Program or the Stock
Exchange Medallion Program; provided, however, that signatures on a Letter of
Transmittal need not be guaranteed if such Existing Notes are tendered for the
account of an Eligible Institution (as defined herein).
If a Letter of Transmittal or any Existing Note is signed by a trustee,
executor, administrator, guardian, attorney-in-fact, agent, officer of a
corporation or other person acting in a fiduciary or representative capacity,
such person must so indicate when signing, and proper evidence satisfactory to
the Company of the authority of such person so to act must be submitted.
Registered Holders should indicate in the applicable box in the Letter of
Transmittal the name and address to which substitute certificates evidencing
Existing Notes for amounts not tendered are to be issued or sent, if different
from the name and address of the person signing the Letter of Transmittal. In
the case of issuance in a different name, the employer identification or social
security number of the person named must also be indicated. If no instructions
are given, such Existing Notes not tendered, as the case may be, will be
returned to the person signing the Letter of Transmittal.
By tendering, each Registered Holder and each DTC Participant will
represent to the Company that, among other things, (i) it is not an Affiliate of
the Company, (ii) it is not a broker-dealer tendering Existing Notes acquired
directly from the Company for its own account, (iii) the New Notes acquired
pursuant to the Exchange Offer are being obtained in the ordinary course of
business of such Registered Holder and (iv) it has no arrangements or
understandings with any person to participate in the Exchange Offer for the
purpose of distributing the New Notes.
No alternative, conditional, irregular or contingent tenders will be
accepted (unless waived). By executing a Letter of Transmittal or transmitting
an acceptance through ATOP, as the case may be, each Tendering Holder waives any
right to receive any notice of the acceptance for purchase of its Existing
Notes.
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All questions as to the validity, form, eligibility (including time of
receipt) and acceptance of tendered Existing Notes will be resolved by the
Company, whose determination will be final and binding. The Company reserves the
absolute right to reject any or all tenders that are not in proper form or the
acceptance of which may, in the opinion of counsel for the Company, be unlawful.
The Company also reserves the absolute right to waive any condition to the
Exchange Offer and any irregularities or conditions of tender as to particular
Existing Notes. The Company's interpretation of the terms and conditions of the
Exchange Offer (including the instructions in the Letter of Transmittal) will be
final and binding. Unless waived, any irregularities in connection with tenders
must be cured within such time as the Company shall determine. The Company and
the Exchange Agent shall not be under any duty to give notification of defects
in such tenders and shall not incur liabilities for failure to give such
notification. Tenders of Existing Notes will not be deemed to have been made
until such irregularities have been cured or waived. Any Existing Notes received
by the Exchange Agent that are not properly tendered and as to which the
irregularities have not been cured or waived will be returned by the Exchange
Agent to the tendering holder, unless otherwise provided in the Letter of
Transmittal, as soon as practicable following the Expiration Date.
LETTERS OF TRANSMITTAL AND EXISTING NOTES MUST BE SENT ONLY TO THE EXCHANGE
AGENT. DO NOT SEND LETTERS OF TRANSMITTAL OR EXISTING NOTES TO THE COMPANY OR
DTC.
The method of delivery of Existing Notes and Letters of Transmittal, any
required signature guaranties and all other required documents, including
delivery through DTC and any acceptance through ATOP, is at the election and
risk of the persons tendering and delivering acceptances or Letters of
Transmittal and, except as otherwise provided in the applicable Letter of
Transmittal, delivery will be deemed made only when actually received by the
Exchange Agent. If delivery is by mail, it is suggested that the Registered
Holder use properly insured, registered mail with return receipt requested, and
that the mailing be made sufficiently in advance of the Expiration Date to
permit delivery to the Exchange Agent prior to the Expiration Date.
GUARANTEED DELIVERY PROCEDURES
Notes held through DTC. DTC Participants holding Existing Notes through DTC
who wish to cause their Existing Notes to be tendered, but who cannot transmit
their acceptances through ATOP prior to the Expiration Date, may cause a tender
to be effected if:
(a) guaranteed delivery is made by or through a firm or other entity
identified in Rule 17Ad-15 under the Exchange Act (an 'Eligible
Institution'), including (as such terms are defined therein): (i) a bank;
(ii) a broker, dealer, municipal securities dealer, municipal securities
broker, government securities dealer or government securities broker; (iii)
a credit union; (iv) a national securities exchange, registered securities
association or clearing agency; or (v) a savings institution that is a
participant in a Securities Transfer Association recognized program;
(b) prior to the Expiration Date, the Exchange Agent receives from
such Eligible Institution a properly completed and duly executed Notice of
Guaranteed Delivery (by mail, hand delivery, facsimile transmission or
overnight courier) substantially in the form provided by the Company
herewith; and
(c) Book-Entry Confirmation and an Agent's Message in connection
therewith (as described above) are received by the Exchange Agent within
three NYSE trading days after the date of the execution of the Notice of
Guaranteed Delivery.
Notes held by Registered Holders. Registered Holders who wish to tender
their Existing Notes but (i) whose Existing Notes are not immediately available
and will not be available for tendering prior to the Expiration Date, or (ii)
who cannot deliver their Existing Notes, the Letter of Transmittal, or any other
required documents to the Exchange Agent prior to the Expiration Date, may
effect a tender if:
(a) the tender is made by or through an Eligible Institution;
(b) prior to the Expiration Date, the Exchange Agent receives from
such Eligible Institution a properly completed and duly executed Notice of
Guaranteed Delivery (by mail, hand delivery,
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facsimile transmission or overnight courier) substantially in the form
provided by the Company herewith; and
(c) a properly completed and executed Letter of Transmittal, as well
as the certificate(s) representing all tendered Existing Notes in proper
form for transfer, and all other documents required by the Letter of
Transmittal, are received by the Exchange Agent within three NYSE trading
days after the date of the execution of the Notice of Guaranteed Delivery.
WITHDRAWAL RIGHTS
Tenders of Existing Notes (or any portion of such Existing Notes in
integral multiples of $1,000 principal amount at maturity due at the stated
maturity) may be withdrawn at any time prior to 5:00 p.m., New York City time,
on the Expiration Date. Any Existing Notes properly withdrawn will be deemed to
be not validly tendered for purposes of the Exchange Offer.
Notes held through DTC. DTC Participants holding Existing Notes who have
transmitted their acceptances through ATOP may, prior to 5:00 p.m., New York
City time, on the Expiration Date, withdraw the instruction given thereby by
delivering to the Exchange Agent, at its address set forth under ' -- Exchange
Agent,' a written, telegraphic or facsimile notice of withdrawal of such
instruction. Such notice of withdrawal must contain the name and number of the
DTC Participant, the principal amount due at the stated maturity of Existing
Notes to which such withdrawal related and the signature of the DTC Participant.
Withdrawal of such an instruction will be effective upon receipt of such written
notice of withdrawal by the Exchange Agent.
Notes held by Registered Holders. Registered Holders may withdraw their
tender of Existing Notes, prior to 5:00 p.m., New York City time, on the
Expiration Date, by delivering to the Exchange Agent, at its address set forth
under ' -- Exchange Agent,' a written, telegraphic or facsimile notice of
withdrawal. Any such notice of withdrawal must (i) specify the name of the
person who tendered the Existing Notes to be withdrawn, (ii) contain a
description of the Existing Notes to be withdrawn and identify the certificate
number or numbers shown on the particular certificates evidencing such Existing
Notes and the aggregate principal amount due at the stated maturity represented
by such Existing Notes and (iii) be signed by the Registered Holder of such
Existing Notes in the same manner as the original signature on the Letter of
Transmittal by which such Existing Notes were tendered (including any required
signature guaranties), or be accompanied by (x) documents of transfer in a form
acceptable to the Company, in its sole discretion and (y) a properly completed
irrevocable proxy that authorized such person to effect such revocation on
behalf of such Registered Holder. If the Existing Notes to be withdrawn have
been delivered or otherwise identified to the Exchange Agent, a signed notice of
withdrawal is effective immediately upon written, telegraphic or facsimile
notice of withdrawal even if physical release is not yet effected.
------------------------
All signatures on a notice of withdrawal must be guaranteed by a recognized
participant in the Securities Transfer Agents Medallion Program, the NYSE
Medallion Signature Program or the Stock Exchange Medallion Program; provided,
however, that signatures on the notice of withdrawal need not be guaranteed if
the Existing Notes being withdrawn are held for the account of an Eligible
Institution.
A withdrawal of an instruction or a withdrawal of a tender must be executed
by a DTC Participant or a Registered Holder, as the case may be, in the same
manner as the person's name appears on its transmission through ATOP or Letter
of Transmittal, as the case may be, to which such withdrawal relates. If a
notice of withdrawal is signed by a trustee, partner, executor, administrator,
guardian, attorney-in-fact, agent, officer of a corporation or other person
acting in a fiduciary or representative capacity, such person must so indicate
when signing and must submit with the revocation appropriate evidence of
authority to execute the notice of withdrawal. A DTC Participant or a Registered
Holder may withdraw an instruction or a tender, as the case may be, only if such
withdrawal complies with the provisions of this Prospectus.
A withdrawal of a tender of Existing Notes by a DTC Participant or a
Registered Holder, as the case may be, may be rescinded only by a new
transmission of an acceptance through ATOP or
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execution and delivery of a new Letter of Transmittal, as the case may be, in
accordance with the procedures described herein.
EXCHANGE AGENT
First Trust of California, National Association has been appointed as
Exchange Agent for the Offer. Questions and requests for assistance, requests
for additional copies of this Prospectus or of the Letter of Transmittal and
requests for Notices of Guaranteed Delivery should be directed to the Exchange
Agent addressed as follows:
<TABLE>
<CAPTION>
To: First Trust of California,
National Association
<S> <C> <C>
BY MAIL: BY HAND: BY OVERNIGHT MAIL OR COURIER:
First Trust of California, First Trust of California, First Trust of California,
National Association National Association National Association
550 South Hope Street 550 South Hope Street 550 South Hope Street
Suite 500 Suite 500 Suite 500
Los Angeles, CA 90071 Los Angeles, CA 90071 Los Angeles, CA 90071
Attn: Trust Administrator Attn: Trust Administrator Attn: Trust Administrator
of Century of Century of Century
Communications Corp. Communications Corp. Communications Corp.
</TABLE>
TRANSFER TAXES
The Company will pay all transfer taxes, if any, applicable to the exchange
of Existing Notes pursuant to the Exchange Offer. If, however, certificates
representing New Notes or Existing Notes for principal amounts not tendered or
accepted for exchange are to be delivered to, or are to be issued in the name
of, any person other than the Registered Holder of the Existing Notes tendered,
or if tendered Existing Notes are registered in the name of any person other
than the person signing the Letter of Transmittal, or if a transfer tax is
imposed for any reason other than the exchange of Existing Notes pursuant to the
Exchange Offer, then the amount of any such transfer taxes (whether imposed on
the Registered Holder or any other person) will be payable by the tendering
holder. If satisfactory evidence of payment of such taxes or exemption therefrom
is not submitted with the Letter of Transmittal, the amount of such transfer
taxes will be billed directly to such tendering holder.
DESCRIPTION OF NOTES
The New Notes will be issued under an Indenture (the 'Indenture'), dated as
of January 15, 1998 between the Company and First Trust of California, National
Association, as trustee (the 'Trustee'), pursuant to which the Existing Notes
were issued. The terms of the New Notes are identical in all material respects
to the Existing Notes, except that the New Notes have been registered under the
Securities Act and, therefore, will not bear legends restricting their transfer
and will not receive the benefits of certain provisions of the Registration
Rights Agreement providing for the payment of liquidated damages under certain
circumstances relating to such Registration Rights Agreement, which provisions
will terminate upon the issuance of the New Notes. For purposes of the following
summary, the term 'Notes' collectively refers to the Existing Notes and the New
Notes. The Indenture will be
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qualified under the Trust Indenture Act of 1939, as amended (the 'Trust
Indenture Act'), upon effectiveness of the Registration Statement of which this
Prospectus forms a part.
The terms of the Notes include those stated in the Indenture and those made
part of the Indenture by reference to the Trust Indenture Act as in effect on
the date of the qualification of the Indenture under the Trust Indenture Act.
The Notes are subject to all such terms, and holders are referred to the
Indenture and the Trust Indenture Act for a statement thereof. The following
summary of certain provisions of the Indenture does not purport to be complete
and is subject to, and is qualified in its entirety by reference to, the
Indenture, including the definitions therein of certain terms used below. The
definitions of certain terms used in the following summary are set forth below
under 'Certain Definitions.' As used in this section, the term 'Company' refers
only to Century Communications, Corp. and not to its subsidiaries and the term
'Registered Holder' refers to a holder of a Note.
GENERAL
The Notes, which mature on January 15, 2008, will be limited to
$605,000,000 in aggregate principal amount at maturity. The Existing Notes were
sold at a substantial discount from the aggregate principal amount payable at
maturity and generated gross proceeds to the Company of $249,659,300. The
Existing Notes were sold at an issue price (the 'Issue Price') of $412.66 per
$1,000 principal amount at maturity of the Notes (41.266% of the principal
amount thereof at maturity). The New Notes will be treated as having an
equivalent Issue Price and an equivalent original issue discount. Original issue
discount (the difference between the Issue Price and the stated redemption price
at maturity of a Note) accrues from January 15, 1998 and continuing during the
period in which the Notes remain outstanding. Such original issue discount
represents an annual yield to maturity based on the Issue Price of 9.05% per
annum (the 'Yield to Maturity'), calculated on a semi-annual bond equivalent
basis using a 360-day year composed of twelve 30-day months. Original issue
discount will cease to accrue with respect to any Note on the date the principal
thereof shall become due (whether at maturity or upon acceleration) or on the
date fixed for purchase thereof. If the Company shall fail to deposit with the
Trustee or any paying agent an amount of money sufficient to discharge the
principal of any Note when due or to purchase any Note when so required, then
interest on the overdue amount shall thereupon accrue at the Yield to Maturity.
For information as to the federal income tax consequences of original issue
discount on the holder of a Note, see 'Certain Federal Income Tax
Considerations.' There will be no periodic payments of interest on the Notes.
The Notes will not be entitled to the benefit of any sinking fund.
The principal operations of the Company are and will be conducted through
its subsidiaries. The Company's ability to service its indebtedness, including
the Notes, is dependent primarily upon the receipt of funds from its
subsidiaries. The subsidiaries are separate legal entities and have no
obligation to pay any amounts due pursuant to the Notes. The provisions of the
Credit Agreements limit the Company's ability to receive funds from certain of
its subsidiaries in the form of loans, advances, dividends, management fees or
otherwise to the amounts necessary to pay normal operating expenses and Federal
and state income and franchise taxes. Except to the extent that the Company may
itself be a creditor with recognized claims against its subsidiaries, claims of
creditors of such subsidiaries, including trade creditors and the lending banks
under the Credit Agreements, will have priority with respect to the assets and
earnings of such subsidiaries over the claims of creditors of the Company,
including holders of the Notes, even though such subsidiary obligations do not
constitute Senior Indebtedness (as such term is defined in the indentures
governing the Company's public debt). The amount of such subsidiary indebtedness
as of November 30, 1997 (excluding $11,476,000 of Australian debt and including
the debt securities of Centennial Cellular which aggregated $475,500,000 in
outstanding principal amount at November 30, 1997) was $852,100,000.
RANKING
The Notes will be senior to all subordinated indebtedness of the Company,
including any outstanding senior subordinated debt securities ('Senior
Subordinated Debt Securities') and subordinated debt securities ('Subordinated
Debt Securities'), and pari passu with other unsecured, unsubordinated
indebtedness of the Company. The Notes will rank pari passu with the
$200,000,000 aggregate principal amount of 9 3/4% Senior Notes due 2002 issued
by the Company in February 1992
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(the '9 3/4% Notes'), $150,000,000 aggregate principal amount of 9 1/2% Senior
Notes due 2000 issued by the Company in August 1992 (the '1992 Notes'),
$250,000,000 aggregate principal amount of 9 1/2% Senior Notes due 2005 issued
by the Company in March 1995 (the '1995 Notes'; the 1992 Notes and the 1995
Notes are hereinafter collectively referred to as the '9 1/2% Notes'),
$250,000,000 aggregate principal amount of 8 7/8% Senior Notes due 2007 issued
by the Company in January 1997 (the '8 7/8% Notes'), $225,000,000 aggregate
principal amount of 8 3/4% Senior Notes due 2007 issued by the Company in
September 1997 (the '8 3/4% Notes'), $100,000,000 aggregate principal amount of
8 3/8% Senior Notes due 2017 issued by the Company in November 1997 (the
'November 1997 Notes') and $100,000,000 aggregate principal amount of 8 3/8%
Senior Notes due 2007 issued by the Company in December 1997 (the 'December 1997
Notes'; the November 1997 Notes and the December 1997 Notes are hereinafter
collectively referred to as the '8 3/8% Notes') and $444,000,000 aggregate
principal amount at maturity of Senior Discount Notes due 2003 issued by the
Company in April 1993 (the 'Discount Notes').
REDEMPTION
The Notes may not be redeemed prior to maturity on January 15, 2008. See
'Certain Rights to Require Purchase of Notes.'
BOOK-ENTRY; DELIVERY AND FORM
Except as set forth below, the Notes will initially be represented by one
or more permanent global certificates in definitive, fully registered form (each
a 'Global Note'). Each Global Note will be deposited on the Exchange Date with,
or on behalf of, DTC and registered in the name of Cede & Co., as nominee of
DTC.
Holders of Notes who elect to take physical delivery of their certificates
instead of holding their interests through the Global Note (collectively
referred to herein as the 'Non-Global Holders') will be issued in registered
form (a 'Certificated Note'). Upon the transfer of any Certificated Note
initially issued to a Non-Global Holder, such Certificated Note will, unless the
transferee requests otherwise or a Global Note has previously been exchanged in
whole for Certificated Notes, be exchanged for an interest in such Global Note.
DTC has advised the Company that it is (i) a limited purpose trust company
organized under the laws of the State of New York, (ii) a member of the Federal
Reserve System, (iii) a 'clearing corporation' within the meaning of the Uniform
Commercial Code, as amended and (iv) a 'clearing agency' registered pursuant to
Rule 17A of the Exchange Act. DTC was created to hold securities for DTC
Participants and facilitates the clearance and settlement of securities
transactions between DTC Participants through electronic book-entry changes to
the accounts of DTC Participants, thereby eliminating the need for physical
transfer and delivery of certificates. DTC Participants include securities
brokers and dealers (including the Initial Purchaser), banks and trust
companies, clearing corporations and certain other organizations. Access to
DTC's system is also available to other entities such as banks, brokers, dealers
and trust companies (collectively, the 'Indirect Participants') that clear
through or maintain a custodial relationship with a Participant, either directly
or indirectly. Holders of Notes who are not Participants may beneficially own
securities held by or on behalf of DTC only through DTC Participants or Indirect
Participants.
Global Note. The Company expects that pursuant to procedures established by
DTC (i) upon the issuance of the Global Note, DTC or its custodian will credit
the accounts of DTC Participants designated by the Initial Purchaser with an
interest in the Global Note and (ii) ownership of beneficial interests in the
Global Note will be shown on, and the transfer of ownership thereof will be
effected only through, records maintained by DTC or its nominee (with respect to
the interests of DTC Participants) and the records of DTC Participants and the
Indirect Participants (with respect to interests of persons other than DTC
Participants).
So long as DTC or its nominee is the registered owner of the Global Note,
DTC or such nominee, as the case may be, will be considered the sole owner or
holder of the Notes represented by the Global Note for all purposes under the
Indenture. No beneficial owner of an interest in the Global Note will be
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able to transfer that interest except in accordance with DTC's procedures, in
addition to those provided for under the Indenture with respect to the Notes.
Payments with respect to the principal of, premium, if any, and interest on
any Notes represented by the Global Note on the applicable record date will be
payable by the Trustee to or at the direction of DTC or its nominee in its
capacity as the registered holder of the Global Note representing such Notes
under the Indenture. None of the Company, the Trustee or any paying agent will
have any responsibility or liability for any aspect of the records relating to
or payments made on account of Notes by DTC, or for maintaining, supervising or
reviewing any records of DTC relating to such Notes. The Company expects that
DTC or its nominee, upon receipt of any payment of principal, premium, if any,
or interest in respect of the Global Note will credit DTC Participants' accounts
with payments in amounts proportionate to their respective beneficial interests
in the principal amount of the Global Note as shown on the records of DTC or its
nominee. Payments by the DTC Participants and the Indirect Participants to the
beneficial owners of the Notes will be governed by standing instructions and
customary practice, as is now the case with securities held for the account of
customers registered in the names of nominees for such customers, and will be
the responsibility of the DTC Participants or the Indirect Participants, as the
case may be.
Transfers between DTC Participants will be effected in the ordinary way
through DTC's funds system in accordance with DTC's rules and will be settled in
federal funds. If a holder requires physical delivery of a Certificated Note for
any reason, including to sell Notes to persons in states that require physical
delivery of the Notes, or to pledge such securities, such holder must transfer
its interest in the Global Note in accordance with the normal procedures of DTC
and the procedures set forth in the Indenture.
DTC has advised the Company that it will take any action permitted to be
taken by a holder of Notes (including the presentation of Notes for exchange as
described below) only at the direction of one or more DTC Participants to whose
account DTC's interests in the Global Note are credited and only in respect of
such portion of the aggregate principal amount of Notes as to which such DTC
Participant or DTC Participants has or have given such direction. However, if
there is an Event of Default under the Indenture, DTC will exchange the Global
Note for Certificated Notes, which it will distribute to DTC Participants.
Although DTC has agreed to the foregoing procedures in order to facilitate
transfers of interests in the Global Note among DTC Participants, it is under no
obligation to perform such procedures, and such procedures may be discontinued
at any time. Neither the Company nor the Trustee nor any paying agent will have
any responsibility for the performance by DTC or DTC Participants or Indirect
Participants of their respective obligations under the rules and procedures
governing their operations.
Certificated Notes. If (i) the Company notifies the Trustee in writing that
DTC is no longer willing or able to act as a depository and the Company is
unable to locate a qualified successor depository within 90 days or (ii) the
Company, at is option, notifies the Trustee in writing that it elects to cause
the issuance of Notes in definitive form under the Indenture, then, upon
surrender by DTC of the Global Note, Certificated Notes will be issued to each
person that DTC identifies as the beneficial owner of the Notes represented by
the Global Note.
SAME-DAY SETTLEMENT AND PAYMENT
Settlement for the Notes will be made in immediately available funds. All
payments of principal and premium, if any, will be made by the Company in
immediately available funds. The Notes will trade in the Same-Day Settlement
System of DTC until maturity and, to the extent that secondary market trading
activity in the Notes is effected through the facilities of DTC, such trades
will be settled in immediately available funds.
NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND STOCKHOLDERS
No director, officer, employee, incorporator or stockholder of the Company,
as such, shall have any liability for any obligations of the Company under the
Notes or the Indenture or for any claim based on, in respect of, or by reason
of, such obligations or their creation. Each holder of Notes by accepting a
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Note waives and releases all such liability. The waiver and release are part of
the consideration for issuance of the Notes. Such waiver may not be effective to
waive liabilities under the federal securities laws and it is the view of the
Commission that such waiver is against public policy.
CERTAIN DEFINITIONS
Set forth below is a summary of certain of the defined terms used in the
Indenture. Reference is made to the Indenture for the full definition of all
such terms as well as any other capitalized terms used herein for which no
definition is provided.
'Accreted Value' of a Note, as of any date, will be the sum of (i) the
Issue Price of such Note and (ii) the portion of the accrued OID through the
date of determination, such portion to be determined on a semi-annual bond
equivalent basis.
'Advance' means any direct or indirect advance, loan, guarantee, transfer
(pursuant to contract or otherwise) or other extension of credit or capital
contribution (in cash or other property) by the Company or any Subsidiary, as
the case may be, to, or any purchase or other acquisition by such person of any
Capital Stock, equity or other ownership interests, bonds, notes, debentures or
other securities of, any Subsidiary or any other Affiliate of the Company, as
the case may be, but not including: (i) any Advance from the Company or any
Subsidiary to any Affiliate for use by such Affiliate in the ordinary course of
its business on terms that are no less favorable to the Company or such
Subsidiary than those that could have been obtained in a comparable transaction
by the Company or such Subsidiary from a Person who is not an Affiliate, or (ii)
any Advance from the Company or any directly or indirectly 90%-owned Subsidiary
to any other directly or indirectly 90%-owned Subsidiary or the Company. For
purposes of subclause (i) of this definition, expenditures in the ordinary
course of business shall mean and include expenditures for working capital,
capital improvements and acquisitions in the communications and media fields
whether by purchase of assets, capital stock or partnership or other equity
interests or by the formation of joint ventures, partnerships or other entities.
'Affiliate' of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
'control' (including, with correlative meanings, the terms 'controlled by' and
'under common control with'), when used with respect to any Person, shall mean
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities or by agreement or otherwise.
'Asset Sale' means the sale, transfer, or other disposition (other than to
the Company or any of its Subsidiaries) in any single transaction or series of
related transactions of (a) any Capital Stock of any Subsidiary, (b) all or
substantially all of the assets of the Company or any Subsidiary or (c) all or
substantially all of the assets of a division, line of business, or comparable
business segment of the Company or any Subsidiary.
'Capital Stock' means any and all shares, interests, rights to purchase,
warrants, options, participations or other equivalents of or interests in
(however designated) corporate stock and any and all equity, beneficial or
ownership interests in, or participations or other equivalents in, any
partnership, association, joint venture or other business entity.
'Capitalized Lease Obligation' means, as applied to any Person, any lease
of any property (whether real, personal or mixed) by that Person or lessee
which, in conformity with GAAP, is required to be accounted for as a capital
lease on the balance sheet of that Person.
'Cash Flow Available for Interest Expense' means, for any Person, for any
period, (A) the sum of the amount for such period of (i) Net Income, (ii)
Interest Expense, (iii) provisions for taxes based on income (excluding taxes
related to gains and losses excluded from the definition of Net Income), (iv)
depreciation expense, (v) amortization expense, and (vi) any other non-cash
items reducing the Net Income of such Person for such period, minus (B) all
non-cash items increasing Net Income of such Person, all as determined in
accordance with GAAP; provided that if, during such period, such Person shall
have made any Asset Sale, Cash Flow Available for Interest Expense of such
Person for such period shall be reduced by an amount equal to the Cash Flow
Available for Interest Expense (if positive) directly attributable to the assets
which are the subject of such Asset Sale for the period
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subsequent to such sale or increased by an amount equal to the Cash Flow
Available for Interest Expense (if negative) directly attributable thereto for
such period.
'Consolidated Cash Flow Available for Interest Expense' means, for any
Person, for any period, (A) the sum of the amount for such period of (i)
Consolidated Net Income, (ii) Consolidated Interest Expense, (iii) provisions
for taxes based on income (excluding taxes related to gains and losses excluded
from the definition of Consolidated Net Income or Net Income), (iv) depreciation
expense, (v) amortization expense, and (vi) any other non-cash items reducing
the Consolidated Net Income of such Person for such period, minus (B) all
non-cash items increasing Consolidated Net Income of such Person for such
period, all as determined on a consolidated basis for such Person and its
Subsidiaries in accordance with GAAP; provided that if, during such period, the
Company or any of its Subsidiaries shall have made any Asset Sale, Consolidated
Cash Flow Available for Interest Expense of the Company for such period shall be
reduced by an amount equal to the Consolidated Cash Flow Available for Interest
Expense (if positive) directly attributable to the assets which are the subject
of such Asset Sale for the period subsequent to such sale or increased by an
amount equal to the Consolidated Cash Flow Available for Interest Expense (if
negative) directly attributable thereto for such period.
'Consolidated Interest Expense' of any Person means, with respect to any
period, the aggregate Interest Expense of such Person and its Subsidiaries,
determined on a consolidated basis in accordance with GAAP; provided, however,
that Consolidated Interest Expense of the Company shall only include the
Interest Expense of any Subsidiary of the Company which, at the date of
determination of the Interest Expense Ratio of the Company, has an Interest
Expense Ratio of less than 1.50 to 1.0.
'Consolidated Net Income' with respect to any specified Person means, for
any period, the aggregate of the Net Income of such specified Person and its
Subsidiaries for such period, on a consolidated basis, determined in accordance
with GAAP; provided that (i) the Net Income of any other Person which is not a
Subsidiary or is accounted for by such specified Person by the equity method of
accounting shall be included only to the extent of the amount of dividends or
distributions paid to such specified Person or a Subsidiary, and (ii) the Net
Income of any other Person acquired by such specified Person or a Subsidiary of
such Person in a pooling of interests transaction for any period prior to the
date of such acquisition shall be excluded and (iii) the Net Income (if
positive) of any Subsidiary that is subject to restrictions, direct or indirect,
on the payment of dividends or the making of distributions to such specified
Person shall be excluded to the extent of such restrictions.
'Currency Agreement' means any foreign exchange contract, currency swap
agreement or other similar agreement or arrangement designed to protect against
fluctuations in currency values.
'Debt' of any Person means (without duplication) any indebtedness,
contingent or otherwise, in respect of borrowed money (whether or not the
recourse of the lender is to the whole of the assets of such Person or only to a
portion thereof), or evidenced by bonds, notes, debentures or similar
instruments or representing the balance deferred and unpaid of the purchase
price of any property (except any such balance that constitutes a trade payable
or an accrued liability arising in the ordinary course of business that is not
overdue by more than 120 days or that is being contested in good faith), if and
to the extent any of the foregoing indebtedness would appear as a liability upon
a balance sheet of the Company in accordance with GAAP.
'GAAP' means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as may be approved by a significant segment of the accounting
profession as in effect on the date of the Indenture.
'Indebtedness' of any Person shall mean the Debt of such Person and shall
also include, to the extent not otherwise included, any Capitalized Lease
Obligation, the maximum fixed repurchase price of any Redeemable Stock,
Indebtedness secured by a Lien to which the property or assets owned or held by
the Company are subject (whether or not the obligations secured thereby shall
have been assumed), guarantees of items that would constitute Indebtedness under
this definition (whether or not such items would appear upon the balance sheet
of such Person), letters of credit and letter of credit
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reimbursement obligations (whether or not such items would appear on such
balance sheet), and obligations in respect of Currency Agreements and Interest
Swap Obligations, and any renewal, extension, refunding or amendment of any of
the foregoing. For purposes of the preceding sentence, the maximum fixed
repurchase price shall be calculated in accordance with the terms of such
Redeemable Stock as if such Redeemable Stock were repurchased on any date on
which Indebtedness shall be required to be determined pursuant to the Indenture,
and if such price is based upon or measured by the fair market value of such
Redeemable Stock (or any equity security for which it may be exchanged or
converted) such fair market value shall be determined in good faith by the Board
of Directors. The amount of Indebtedness of any Person at any date shall be the
outstanding balance at such date of all unconditional obligations as described
above and the maximum liability of any such contingent obligations at such date.
'Interest Expense' of any Person means, for any period, the aggregate
amount of (i) interest in respect of Indebtedness of such Person (including
amortization of original issue discount on any such Indebtedness and the
interest portion of any deferred payment obligation, calculated in accordance
with the effective interest method of accounting, all commissions, discounts and
other fees and charges owed with respect to letters of credit and bankers'
acceptance financing and the net costs associated with Interest Swap Obligations
and Currency Agreements), (ii) all but the principal component of rentals in
respect of Capitalized Lease Obligations paid, accrued or scheduled to be paid
or accrued by such Person during such period, and (iii) any dividends or
distributions paid on any Redeemable Stock of such Person, all as determined in
accordance with GAAP.
'Interest Expense Ratio' means, for the Company, the ratio of (i) the
aggregate amount of Consolidated Cash Flow Available for Interest Expense of the
Company for the four fiscal quarters for which financial information in respect
thereof is available immediately prior to the date of the transaction giving
rise to the need to calculate the Interest Expense Ratio (the 'Transaction
Date') to (ii) the aggregate Consolidated Interest Expense which the Company
will accrue during the fiscal quarter in which the Transaction Date occurs and
the three fiscal quarters immediately subsequent to such fiscal quarter,
assuming the Consolidated Interest Expense accruing on the amount of the
Company's Indebtedness on the Transaction Date and reasonably anticipated by the
Company in good faith to be outstanding from time to time during such period
(assuming the continuation of market interest rate levels prevailing on the
Transaction Date in any calculation of Interest Expense relating to Indebtedness
the interest on which is a function of such market interest rate levels).
'Interest Expense Ratio' means, for any other Person, the ratio of (i) the
aggregate amount of Cash Flow Available for Interest Expense of such other
Person for the four fiscal quarters for which financial information in respect
thereof is available immediately prior to the relevant Transaction Date to (ii)
the aggregate Interest Expense which such other Person will accrue during the
fiscal quarter in which the Transaction Date occurs and the three fiscal
quarters immediately subsequent to such fiscal quarter, assuming the Interest
Expense accruing on the amount of such other Person's Indebtedness on the
Transaction Date and reasonably anticipated by such other Person in good faith
to be outstanding from time to time during such period (assuming the
continuation of market interest rate levels prevailing on the Transaction Date
in any calculation of Interest Expense relating to Indebtedness the interest on
which is a function of such market interest rate levels).
'Interest Swap Obligations' shall mean the obligations of any Person
pursuant to any arrangement with any other Person whereby, directly or
indirectly, such Person is entitled to receive from time to time periodic
payments calculated by applying either a floating or a fixed rate of interest on
a stated notional amount in exchange for periodic payment made by such Person
calculated by applying a fixed or a floating rate of interest on the same
notional amount.
'Lien' means any lien, security interest, charge or encumbrance of any kind
(including any conditional sale or other title retention agreement, any lease in
the nature thereof, and any agreement to give any security interest).
'Net Income' of any Person shall mean the net income (loss) of such Person,
determined in accordance with GAAP, excluding, however, any gain (but not loss)
realized upon the sale or other disposition (including, without limitation,
dispositions pursuant to sale and leaseback transactions) of any real property
or equipment of such Person which is not sold or otherwise disposed of in the
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ordinary course of business and any gain (but not loss) realized upon the sale
or other disposition of any Capital Stock of such Person or a Subsidiary of such
Person.
'OID' or 'Original Issue Discount' of any Note means the excess of the
'stated redemption price at maturity' of such Note, as defined in Section 1273
of the Internal Revenue Code of 1986, as amended, or any successor provisions,
and the applicable Treasury Regulations thereunder, whether denominated as
principal or interest, over the Issue Price thereof.
'Permitted Investment' means any investment after November 10, 1988 (a)
which when aggregated with all other outstanding Permitted Investments does not
exceed the aggregate of $50 million (excluding amounts which may be used to
acquire the remaining interests in the non-wireline cellular telephone systems
in Elkhart, Indiana, Lincoln, Nebraska and Charlottesville and Lynchburg,
Virginia) plus (i) the amount of Proceeds from the issuance or sale of Capital
Stock of the Company after November 15, 1988, (ii) the amount of Proceeds from
the issuance of indebtedness which is converted or exchanged for Capital Stock
of the Company after November 15, 1988, and (iii) amounts from dividends or
distributions made to the Company or any Restricted Subsidiary from an
Unrestricted Subsidiary after November 15, 1988, and (b) which is (i) loaned or
contributed to any Affiliate controlled, directly or indirectly, by the Company
in the ordinary course of business on terms that are no less favorable to the
Company or the Restricted Subsidiary than those that could have been obtained in
a comparable transaction by the Company or such Restricted Subsidiary from a
Person who is not an Affiliate, or (ii)(A) loaned or contributed to any
Unrestricted Subsidiary or (B) made by way of a guarantee by the Company or a
Restricted Subsidiary of Indebtedness of an Unrestricted Subsidiary. A Permitted
Investment in an Unrestricted Subsidiary will be deemed to be no longer
outstanding if such Unrestricted Subsidiary has been classified a Restricted
Subsidiary.
'Proceeds' means, with respect to any issuance or sale of securities, cash
or the fair market value of property other than cash (as determined by the Board
of Directors whose determination shall be evidenced by a resolution of the Board
of Directors filed with the Trustee) received in connection therewith.
'Pro Forma Operating Cash Flow' means, for any period, (A) the sum of the
amount for such period of (i) Net Income, (ii) Interest Expense, (iii)
provisions for taxes based on income (excluding taxes related to gains and
losses excluded from the definition of Consolidated Net Income or Net Income),
(iv) depreciation expense, (v) amortization expense, and (vi) any other non-cash
items reducing the Net Income of such Person for such period, minus (B) all
non-cash items increasing Net Income of such Person for such period, all as
determined on a consolidated basis for the Company and its Restricted
Subsidiaries in accordance with GAAP after giving effect to the following: (i)
if, during such period, the Company or any of its Restricted Subsidiaries shall
have made any Asset Sale, Pro Forma Operating Cash Flow of the Company for such
period shall be reduced by an amount equal to the Pro Forma Operating Cash Flow
(if positive) directly attributable to the assets which are the subject of such
Asset Sale for the period subsequent to such sale or increased by an amount
equal to the Pro Forma Operating Cash Flow (if negative) directly attributable
thereto for such period and (ii) if, during such period, Indebtedness is
incurred by the Company or any of its Restricted Subsidiaries for or in
connection with the acquisition of any Person or business which immediately
after acquisition is a Subsidiary or whose assets are held directly by the
Company or a Subsidiary, Pro Forma Operating Cash Flow shall be computed so as
to give pro forma effect to the acquisition of such Person or business.
'Redeemable Stock' means any Capital Stock which, by its terms (or by the
terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at
the option of the holder thereof, in whole or in part, on or prior to the
Maturity Date (as defined in the Indenture) of the Notes.
'Restricted Subsidiary' means (a) any Subsidiary of the Company, whether
existing on or after the date of the Indenture, unless such Subsidiary is an
Unrestricted Subsidiary or shall have been classified as an Unrestricted
Subsidiary by a resolution adopted by the Board of Directors of the Company and
(b) an Unrestricted Subsidiary which is reclassified as a Restricted Subsidiary
by a resolution adopted by the Board of Directors of the Company, provided that
on and after the date of such reclassification
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such Unrestricted Subsidiary shall not incur Indebtedness other than that
permitted to be incurred by a Restricted Subsidiary under the provisions of the
Indenture. Notwithstanding the foregoing, Century-ML Cable Venture and its
Subsidiaries and Century Venture Corp. and its Subsidiaries shall be Restricted
Subsidiaries unless any of the foregoing shall be reclassified as an
Unrestricted Subsidiary pursuant to clause (d) of the definition of an
Unrestricted Subsidiary.
'Subsidiary' of any specified Person means (i) a corporation a majority of
whose Capital Stock with voting power, under ordinary circumstances, to elect
directors is at any time, directly or indirectly, owned by such Person or by
such Person and a Subsidiary or Subsidiaries of such Person or by a Subsidiary
or Subsidiaries of such Person or (ii) any other Person (other than a
corporation) in which such Person or such Person and a Subsidiary or
Subsidiaries of such Person or a Subsidiary or Subsidiaries of such Person,
directly or indirectly, at the date of determination thereof has at least
majority ownership interest.
'Unrestricted Subsidiary' means (a) Century Cellular Holding Corp.,
provided that Century Cellular Holding Corp. may be reclassified as a Restricted
Subsidiary pursuant to clause (b) of the definition of Restricted Subsidiary,
(b) any Subsidiary as of the date of the Indenture which is not a Restricted
Subsidiary, (c) any Subsidiary of an Unrestricted Subsidiary and (d) any
Subsidiary organized or acquired after the date of the Indenture which is
classified as an Unrestricted Subsidiary by a resolution adopted by the Board of
Directors of the Company; provided that a Subsidiary may be so classified as an
Unrestricted Subsidiary only if immediately after the date of such
classification, the Company and its Restricted Subsidiaries would have
investments in such Subsidiary which would be Permitted Investments; and
provided further, that, notwithstanding the foregoing, no Subsidiary which is a
Restricted Subsidiary as of the date of the Indenture shall be reclassified as
an Unrestricted Subsidiary or be a Subsidiary of an Unrestricted Subsidiary.
Centennial Cellular is a subsidiary of Century Cellular Holding Corp. The
Trustee shall be given prompt notice by the Company of each resolution adopted
by the Board of Directors under this provision, together with a copy of each
such resolution adopted.
'U.S. Government Obligations' means securities that are (i) direct
obligations of the United States of America for payment of which its full faith
and credit is pledged or (ii) obligations of a Person controlled or supervised
by and acting as an agency or instrumentality of the United States of America
the timely payment of which is unconditionally guaranteed as a full faith and
credit obligation of the United States of America, which, in either case under
clause (i) or (ii), are not callable or redeemable at the option of the issuer
thereof, and will also include a depository receipt issued by a bank or trust
company as custodian with respect to any such U.S. Government Obligation or a
specified payment of interest on or principal of any such U.S. Government
Obligation held by such custodian for the account of the holder of a depository
receipt, provided that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the holder of such
depository receipt from any amount received by the custodian in respect of the
U.S. Government Obligation or the specific payment of interest on or principal
of the U.S. Government Obligation evidenced by such depository receipt.
CERTAIN COVENANTS
Dividend and Stock Purchase Restrictions. The Indenture provides that,
notwithstanding the restrictions on dividends and Capital Stock purchases by the
Company and its Subsidiaries, certain of which are referred to below, such
restrictions will not prevent (A) the payment of an amount not to exceed
$150,000,000 in the aggregate to repurchase shares of the common stock of the
Company, (B) the payment of any dividend within 60 days after the date of
declaration when the payment would have complied with the dividend restrictions
set forth below on the date of declaration or (C) the purchase, redemption,
acquisition or other retirement of any shares of the Company's Capital Stock by
exchange for, or out of the proceeds of the substantially concurrent sale of,
other shares of its Capital Stock (other than Redeemable Stock).
The Indenture provides that the Company will not, directly or indirectly,
(i) declare or pay any dividend on, or make any distribution to the holders (as
such) of, any shares of its Capital Stock (other than dividends or distributions
payable in Capital Stock (other than Redeemable Stock) of the Company); or (ii)
purchase, redeem or otherwise acquire or retire for value any Capital Stock of
the
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Company, any Subsidiary or other Affiliate (other than any such Capital Stock
owned by the Company or any directly or indirectly wholly-owned Subsidiary of
the Company); or (iii) permit any Subsidiary to declare or pay any dividend on,
or make any distribution to the holders (as such) of, any shares of its Capital
Stock except to the Company or a directly or indirectly wholly-owned Subsidiary
of the Company (other than dividends or distributions payable in Capital Stock
(other than Redeemable Stock) of such Subsidiary or the Company); or (iv) permit
any Subsidiary to purchase, redeem or otherwise acquire or retire for value any
Capital Stock of such Subsidiary, the Company or any Affiliate of either of them
(other than any such Capital Stock owned by the Company or any directly or
indirectly wholly-owned Subsidiary of the Company); or (v) make, or permit any
Subsidiary to make, an Advance (all of the foregoing, 'Restricted Payments';
provided, however, that Restricted Payments shall not include any amounts paid
for the acquisition from a non-Affiliate of any Capital Stock of a Subsidiary or
other Affiliate) if at the time of such action (a) an Event of Default (as
defined in the Indenture) shall have occurred and be continuing, or shall occur
as a consequence thereof, or (b) if upon giving effect to such payment the
aggregate amount expended for all such Restricted Payments subsequent to
November 21, 1988 shall exceed the sum of (i) the excess of (X) the aggregate of
Consolidated Cash Flow Available for Interest Expense of the Company accrued
during all fiscal quarters ended subsequent to May 31, 1988 over (Y) the product
of (1) 1.2 and (2) the aggregate of Consolidated Interest Expense of the Company
accrued during all fiscal quarters ended subsequent to May 31, 1988, (ii) the
aggregate net proceeds, including cash and the fair market value of property
other than cash, received by the Company from the issue or sale, after November
21, 1988, of Capital Stock of the Company (other than Redeemable Stock),
including upon the exercise of any warrant, other than in connection with the
conversion or exchange of any Indebtedness or Capital Stock, and (iii) the
aggregate net proceeds received by the Company, subsequent to November 21, 1988,
from the issue or sale of any debt securities or Redeemable Stock of the
Company, if, at the time the determination is made, such debt securities or
Redeemable Stock, as the case may be, have been converted into or exchanged for
Capital Stock of the Company (other than Redeemable Stock).
Limitation on Indebtedness. The Indenture provides that the Company will
not, and will not permit any Restricted Subsidiary to, directly or indirectly,
create, incur, issue, assume or become liable for, contingently or otherwise
(collectively an 'incurrence'), any Indebtedness (other than the Notes) unless,
after giving effect to such incurrence on a pro forma basis, Indebtedness of the
Company and its Restricted Subsidiaries, on a consolidated basis, shall not be
more than nine times Pro Forma Operating Cash Flow for the four fiscal quarters
immediately preceding such incurrence. For purposes of the above, an incurrence
will not be deemed to occur when any Person becomes a Subsidiary by merger,
consolidation, acquisition or otherwise. Notwithstanding the above, the
Indenture does not limit (i) Indebtedness incurred in connection with Currency
Agreements or Interest Swap Obligations, (ii) Indebtedness which is subordinated
in right of payment to the Notes and which has an average life to maturity
longer than that of the Notes and (iii) Indebtedness resulting in the extension,
refunding or renewal of any Indebtedness existing prior to such extension,
renewal or refunding which does not result in an increase in the principal
amount of such existing Indebtedness then outstanding.
Investments in Affiliates and Subsidiaries. After the date of this
Prospectus, the Company may not, nor will the Company allow any Restricted
Subsidiary to, invest in any Affiliate (other than the Company or a Restricted
Subsidiary) or in any Unrestricted Subsidiary other than by way of Permitted
Investments.
After the date of this Prospectus, neither the Company nor any Restricted
Subsidiary will guarantee or secure, pledge, encumber or otherwise become
directly or indirectly liable for investments in or borrowings by Unrestricted
Subsidiaries, except for Permitted Investments and except that the Capital Stock
of an Unrestricted Subsidiary may be pledged to secure borrowings by such
Unrestricted Subsidiary or other Unrestricted Subsidiaries.
Limitation on Transactions with Affiliates. The Indenture provides that
neither the Company nor any Subsidiary may engage in any transaction with an
Affiliate of the Company (other than a Restricted Subsidiary), or any director,
officer or employee of the Company or any Subsidiary, on terms less favorable to
the Company or such Subsidiary than would be obtainable at the time in
comparable transactions of the Company or such Subsidiary with Persons which are
not Affiliates. The provision
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described above does not apply to (i) any Restricted Payment which is made in
compliance with the 'Dividend and Stock Purchase Restrictions' covenant
described above or (ii) any transaction which complies with the provisions
described under 'Investments in Affiliates and Subsidiaries' and 'Merger,
Consolidation or Sale of Assets.'
MERGER, CONSOLIDATION OR SALE OF ASSETS
The Company may not consolidate or merge with or into, or sell, lease,
convey or otherwise dispose of all or substantially all of its assets to,
another corporation, Person or entity unless (i) the Company is the surviving
Person or the successor or transferee is a corporation organized and existing
under the laws of the United States, any state thereof or the District of
Columbia, (ii) the successor assumes all the obligations of the Company under
the Notes and the Indenture, (iii) after such transaction no Event of Default
exists and (iv) the Interest Expense Ratio of the surviving or successor entity
immediately following the transaction, determined on a pro forma basis, would be
at least 1 to 1; provided that, if the Interest Expense Ratio of the Company
immediately prior to any such transaction is within the range set forth in
Column A below, then the pro forma Interest Expense Ratio of the surviving or
successor entity shall be at least equal to the percentage of the Interest
Expense Ratio of the Company set forth in Column B below:
<TABLE>
<CAPTION>
(A) (B)
- -------------------------------------------------------------------------------------- ----
<S> <C>
1.1111:1 to 1.4999:1.................................................................. 90%
1.5:1 and higher...................................................................... 75%
</TABLE>
and provided further, that, if the pro forma Interest Expense Ratio of the
surviving or successor entity is 2.0:1 or more, the calculation in the preceding
provision shall be inapplicable and such transaction shall be deemed to have
complied with the requirements of such provision.
DEFEASANCE
Under the terms of the Indenture, the Company, at its option, (a) will be
deemed to be discharged from any and all obligations in respect of the Notes
(except in each case for certain obligations to register the transfer or
exchange of the Notes, replace stolen, lost or mutilated Notes and maintain
paying agencies) or (b) need not comply with certain covenants of the Indenture
described under 'Certain Covenants,' in each case, if the Company irrevocably
deposits with the Trustee, in trust, money or U.S. Government Obligations which
through the payment of interest thereon and principal thereof in accordance with
their terms will provide money in an amount sufficient to pay all the principal
of the Notes on the date such payment is due in accordance with the terms of the
Notes. To exercise any such option, the Company is required to deliver to the
Trustee an opinion of counsel, or a ruling received from or published by the
Internal Revenue Service, to the effect that the deposit and related defeasance
would not cause the holders of the Notes being defeased to recognize income,
gain or loss for federal income tax purposes and that the holders of the Notes
will be subject to federal income tax on the same amount and in the same manner
and at the same times as would have been the case if such option had not been
exercised. Because under current federal income tax law a discharge from all
obligations in respect of the Notes may cause the holders thereof to recognize
income, the Company may not be able to be discharged from its obligations in
respect of the Notes, but could exercise its option in order that it not be
required to comply with certain covenants.
CERTAIN RIGHTS TO REQUIRE REPURCHASE OF NOTES
The Indenture provides that in the event of the occurrence of a Triggering
Event (as hereinafter defined) with respect to the Company, then each holder of
Notes shall have the right, at the holder's option, to require the Company to
buy all or any part of such holder's Notes on the date (the 'Repurchase Date')
that is 115 days after the occurrence of such Triggering Event for an amount
equal to 101% of their Accreted Value as of the date of purchase.
The Company is obligated to mail to all holders of record of the Notes,
within 30 days after occurrence of a Triggering Event, a notice of the
occurrence of such Triggering Event, specifying the
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date by which a holder must notify the Trustee of such holder's intention to
exercise the repurchase right and describing the procedure which such holder
must follow to exercise such right. The Company shall deliver a copy of such
notice to the Trustee and shall cause a copy of such notice to be published in
The Wall Street Journal (National Edition). To exercise the repurchase right,
the holder of a Note must deliver, on or before the 90th day after the
occurrence of the Triggering Event, written notice (which shall be irrevocable)
to the Trustee of the holder's exercise of such right, together with the Note or
Notes with respect to which the right is being exercised, duly endorsed for
transfer.
The terms below are defined in the Indenture as follows:
(i) 'Triggering Event' means the occurrence of any transaction or
event or series of transactions or events which results in (a) the Class A
Common Stock of the Company being held of record by less than 300 holders
and (b) a Designated Downgrading (as hereinafter defined). For purposes of
clause (a) above, 'held of record' has the meaning set forth in Rule 12g5-1
promulgated by the Commission under the Exchange Act;
(ii) In the event that the rating of the Notes by both Rating Agencies
on the date 60 days prior to the occurrence of a Triggering Event (a 'Base
Date') is equal to or higher than B Plus (as hereinafter defined), then a
'Designated Downgrading' means the reduction of the rating of the Notes by
either or both Rating Agencies on the date of the relevant event or
transaction resulting in the Class A Common Stock of the Company being held
of record by less than 300 holders (or, if the rating on such date does not
reflect the effect of such event or transaction, then on the earliest date
on which such rating shall reflect the effect of such event or transaction)
(as applicable, the 'Triggering Event Date') to a rating equal to or lower
than B minus (as hereinafter defined); in the event that the rating of the
Notes by either or both Rating Agencies on any Base Date is lower than B
Plus, then a 'Designated Downgrading' means the reduction of the rating of
the Notes by either or both Rating Agencies to a lower rating. In
determining whether the rating of the Notes has been reduced, a reduction
of a gradation (+ and - for S&P and l, 2 and 3 for Moody's or the
equivalent thereof by any substitute rating agency referred to below) shall
be taken into account;
(iii) 'Rating Agency' means either Standard & Poor's Corporation or
its successor ('S&P') or Moody's Investors Service, Inc. or its successor
('Moody's');
(iv) 'B Plus' means, with respect to ratings by S&P, a rating of B+
and, with respect to ratings by Moody's, a rating of B1, or the equivalent
thereof by any substitute agency referred to below;
(v) 'B Minus' means, with respect to ratings by S&P, a rating of B -
and, with respect to ratings by Moody's, a rating of B3, or the equivalent
thereof by any substitute agency referred to below.
The Company shall take all reasonable action necessary to enable each of
the Rating Agencies to provide a rating for the Notes, but, if either or both of
the Rating Agencies shall not make such a rating available, a nationally
recognized investment banking firm selected by the Company shall select a
nationally recognized securities rating agency or two nationally recognized
securities rating agencies to act as substitute rating agency or substitute
rating agencies, as the case may be.
DEFAULTS, NOTICE AND WAIVER
The following are Events of Default under the Indenture: (i) default in the
payment of the principal of any Note when due, (ii) default in the performance,
or breach, of any covenant or warranty of the Company in the Indenture or any
Note, which continues for 90 days after written notice from the Trustee or the
holders of 25% or more in principal amount of the Notes outstanding, and (iii)
certain events of bankruptcy, insolvency or reorganization of the Company.
If an Event of Default occurs and is continuing, the Trustee or the holders
of not less than 25% in aggregate principal amount of the Notes then outstanding
may declare the Accreted Value of the Notes as of the date of such Event of
Default due and payable.
The Company must file annually with the Trustee an Officers' certificate
stating whether or not the Company is in default in the performance and
observance of any of the terms, provisions and conditions of the Indenture and,
if so, specifying the nature and status of the default.
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The Indenture provides that the Trustee, within 90 days after the
occurrence of an Event of Default, will give to holders of Notes notice of all
uncured or unwaived defaults known to it; but, except in the case of a default
in the payment of the principal of any of the Notes, the Trustee shall be
protected in withholding such notice if the board of directors of the Company or
the executive or trust committee thereof or a Responsible Officer of the Trustee
in good faith determines that the withholding of such notice is in the interest
of such holders.
The Indenture contains a provision entitling the Trustee to be indemnified
by holders of Notes before proceeding to exercise any right or power under the
Indenture at the request of any such holders. The Indenture provides that the
holders of a majority in principal amount of the outstanding Notes may, subject
to certain exceptions, direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or
power conferred upon the Trustee with respect to the Notes. The right of a
holder to institute a proceeding with respect to the Indenture is subject to
certain conditions precedent including notice and indemnity to the Trustee, but
the holder has an absolute right to receipt of principal when due and to
institute suit for the enforcement thereof.
MODIFICATION AND WAIVER
Modification and amendments of the Indenture may be made by the Company and
the Trustee with the consent of the holders of a majority in principal amount of
the outstanding Notes and outstanding Exchange Notes taken together as one class
(collectively, the 'Outstanding Notes'); provided, however, that no such
modification or amendment may, without the consent of the holder of each
Outstanding Note: (a) change the Stated Maturity of the principal of any
Outstanding Note; (b) reduce the principal amount of any Outstanding Note; (c)
reduce the amount of principal of an Outstanding Note payable upon acceleration
of the maturity thereof; (d) adversely affect any right of repayment at the
option of the holder of any Outstanding Note or (e) reduce the percentage in
principal amount of Outstanding Notes, the consent of the holders of which is
required for modification or amendment of the Indenture or for waiver of
compliance with certain provisions of the Indenture or for waiver of certain
defaults.
Without the consent of any holder of Outstanding Notes, the Company may
amend or supplement the Indenture and the Outstanding Notes to cure any
ambiguity or inconsistency or to provide for Outstanding Notes in bearer form in
addition to or in place of registered Outstanding Notes or to make any other
provisions that do not adversely affect the rights of any holder of Outstanding
Notes.
The holders of a majority in principal amount of the Outstanding Notes may,
on behalf of the holders of all of the Outstanding Notes, waive any past default
under the Indenture, except a default in the payment of the principal of any
Outstanding Note or in respect of a provision which under such Indenture cannot
be modified or amended without the consent of the holder of each Outstanding
Note.
CONCERNING THE TRUSTEE
The Indenture provides that, except during the continuance of an Event of
Default, the Trustee will perform only such duties as are specifically set forth
in the Indenture. If an Event of Default has occurred and is continuing, the
Trustee will exercise such rights and powers vested in it under the Indenture
and use the same degree of care and skill in its exercise as a prudent person
would exercise under the circumstances in the conduct of such person's own
affairs.
The Indenture and provisions of the Trust Indenture Act incorporated by
reference therein contain limitations on the rights of the Trustee, should it
become a creditor of the Company, to obtain payment of claims in certain cases
or to realize on certain property received by it in respect of any such claims
as security or otherwise.
The Trustee is also the trustee with respect to the 9 3/4% Notes, the
9 1/2% Notes, the 8 7/8% Notes, the 8 3/4% Notes, the 8 3/8% Notes and the
Discount Notes which were issued under an indenture, as amended, dated as of
February 15, 1992, between the Company and the Trustee, successor trustee to
Bank of America National Trust and Savings Association. The Trustee may perform
certain services for
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and transact other banking business with the Company from time to time in the
ordinary course of business.
REPORTS TO HOLDERS OF NOTES
Notwithstanding any Triggering Event (see 'Certain Rights to Require
Repurchase of Notes') or any other event, the Indenture provides that the
Company must file with the Commission and provide the Trustee and the holders of
the Notes with copies of the quarterly and annual reports and other information,
documents and reports specified in Sections 13 and 15(d) of the Exchange Act as
long as any Notes are outstanding.
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CERTAIN FEDERAL INCOME TAX CONSIDERATIONS
The following is a summary of the material United States federal income tax
matters that may be relevant to (i) the exchange of the Existing Notes for New
Notes pursuant to the Exchange Offer and (ii) the acquisition, ownership and
disposition of the New Notes by the initial exchangers of the Existing Notes,
and, to the limited extent discussed below under ' -- Market Discount' and
' -- Acquisition Premium', to subsequent holders of the New Notes. Except to the
limited extent discussed below under ' -- Non-U.S. Holders', this summary is
limited to United States Persons (as defined below) who hold the Notes as
'capital assets' within the meaning of Section 1221 of the Internal Revenue Code
of 1986, as amended (the 'Code'), and whose 'functional currency' as defined in
the Code is the U.S. dollar ('United States Holders'). This discussion does not
address the U.S. federal income tax consequences to certain persons subject to
special treatment under the federal income tax law, including, but not limited
to, tax-exempt organizations, dealers in securities or currencies, regulated
investment companies, real estate investment trusts, real estate mortgage
investment conduits, financial asset securitization investment trusts, financial
institutions, persons subject to alternative minimum tax, insurance companies,
or persons holding Notes as a part of a hedging, conversion, short sale or
integrated transaction or a straddle.
As used herein, the term 'United States Person' means (i) a citizen or
resident of the United States, (ii) a corporation or partnership created or
organized in or under the laws of the United States or any state thereof, or
(iii) an estate or trust that is subject to United States federal income
taxation without regard to the source of its income.
This summary is based upon the provisions of law and the regulations,
administrative rulings and judicial decisions thereunder now in effect, all of
which are subject to change (possibly with retroactive effect) or different
interpretations. This summary does not purport to be a comprehensive description
of all of the tax considerations that may be relevant to a decision to acquire,
hold or dispose of the Notes. This summary is provided for general information
purposes only, and does not constitute, and should not be considered as, legal
or tax advice to any purchaser or other holders of the Notes. PERSONS
CONSIDERING AN EXCHANGE OF EXISTING NOTES FOR NEW NOTES PURSUANT TO THE EXCHANGE
OFFER OR THE PURCHASE, OWNERSHIP OR DISPOSITION OF THE NEW NOTES SHOULD CONSULT
THEIR OWN TAX ADVISORS CONCERNING THE UNITED STATES FEDERAL INCOME TAX
CONSEQUENCES THEREOF IN LIGHT OF THEIR PARTICULAR SITUATIONS, AS WELL AS
CONCERNING ANY CONSEQUENCES ARISING UNDER THE LAWS OF ANY OTHER TAXING
JURISDICTION, INCLUDING ANY STATE, LOCAL OR OTHER FOREIGN JURISDICTION, AS WELL
AS ANY ESTATE OR GIFT TAX CONSIDERATIONS.
Exchange of Existing Notes for New Notes. The exchange of an Existing Note
for a New Note pursuant to the Exchange Offer should not be treated as a taxable
exchange or otherwise as a taxable event for United States federal income tax
purposes. Consequently, no gain or loss should be recognized by a holder upon
exchange of an Existing Note for a New Note. The New Notes should have the same
issue price as the Existing Notes and each United States Holder should have the
same adjusted basis and holding period in the New Notes as it had in the
Existing Notes immediately before the Exchange Offer.
In any event, persons considering the exchange of Existing Notes for New
Notes should consult their own tax advisors concerning the United States federal
income tax consequences of such exchange in light of their particular
situations, as well as any consequences arising under the laws of any other
taxing jurisdiction.
Original Issue Discount. For federal income tax purposes, when a debt
instrument is issued at a discount, the amount of such discount ('original issue
discount' or 'OID') is treated as interest income, and the holder of such
instrument must include such OID in his income for the period during which the
OID accrues even if no cash attributable to such OID income is received until
maturity, redemption or other disposition of the debt instrument.
The amount of OID, if any, on a debt instrument, such as the Notes, is the
difference between its 'issue price' and its 'stated redemption price at
maturity' (subject, generally, to a de minimis exception not applicable to the
Notes). The portion of any such OID that is to be accrued (and included in
income) with respect to a debt instrument with a maturity of more than one year
generally will be determined for each accrual period during the term of such
debt instrument under the constant yield method, applied by (i) multiplying the
adjusted issue price of the debt instrument at the beginning of
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the accrual period by its yield to maturity, and (ii) subtracting from that
product the amount of any interest payments made during that accrual period that
are based on a single fixed rate and are payable unconditionally in cash or in
property (other than debt instruments of the issuer) at intervals of one year or
less during the entire term of the debt instrument ('qualified stated
interest'). The resulting amount is allocated ratably to each day in the accrual
period, and the amount includible in a holder's income (whether on the cash or
accrual method of accounting) with respect to the debt instrument is the sum of
the resulting daily portions of OID for each day of the taxable year during
which the holder held the debt instrument. Under these rules, a United States
Holder will generally have to include in income increasingly greater amounts of
OID in successive accrual periods.
The 'issue price' of each note in a particular offering will generally be
the first price at which a substantial amount of that particular offering is
sold (other than to an underwriter, placement agent or wholesaler). The 'stated
redemption price at maturity' of a Note equals the sum of all payments to be
made on such Note other than qualified stated interest. The 'adjusted issue
price' of a debt instrument at the beginning of any accrual period is equal to
its issue price increased by all previously accrued OID and reduced by the
amount of all previous payments made on such debt instrument (other than
payments of qualified stated interest). Generally, the tax basis of the debt
instrument in the hands of the holder will be increased and decreased,
respectively, by the same amounts.
The Existing Notes were issued with OID for federal income tax purposes
equal to the amount of the excess of the stated redemption price at maturity for
the Notes over the issue price for the Existing Notes. Each Existing Note was
issued at a price of $412.66 per $1,000 principal amount, which translates into
aggregate OID for the Notes of $587.34 per $1,000 principal amount. The New
Notes will be treated as having an equivalent issue price and equivalent OID.
This OID will generally be required to be recognized by the Holders of the Notes
under the constant yield method described above. Because the Notes do not
provide for the payment of any interest currently, there will be no 'qualified
stated interest' on the Notes.
The Company is required to furnish to the Internal Revenue Service, and
will furnish annually to the record Holders of the Notes (other than
corporations and other exempt recipients), certain information returns with
respect to OID accruing during the calendar year. Because this information will
be based upon the adjusted issue price of the Notes as if the Holder were the
original Holder of the Notes, subsequent Holders who purchase Notes for an
amount other than the adjusted issue price for such Notes or on a date other
than the end of an accrual period for the Notes will be required to determine
for themselves the amount of OID, if any, that they are required to report.
Market Discount. The income which an investor who acquires a Note from an
original Holder at a 'market discount' must recognize may be affected by the
market discount provisions of the Code. Debt instruments such as the Notes are
considered to have been purchased at a market discount if, subsequent to their
original issuance, they are purchased at a price below their adjusted issue
price.
Under the market discount rules, if such an investor purchases a Note at a
market discount in excess of a statutorily-defined de minimis amount and
thereafter recognizes gain upon a disposition or retirement of the Note, then
the lesser of the gain so recognized and the portion of the market discount that
accrued while the Note was held by such investor generally will be treated as
ordinary income at such time. Moreover, any such market discount on a Note may
be taxable to such an investor at the time of certain otherwise non-taxable
transactions (e.g., gifts). In addition, a Holder of a market discount Note may
be required to defer a portion of any interest expense that otherwise may be
deductible on any indebtedness incurred or maintained to purchase or carry such
Note until the Holder disposes of the Note in a taxable transaction.
Neither the rule treating accrued market discount as ordinary income on
disposition nor the rule deferring interest deductions applies if the holder of
the market discount Note elects to include the accrued market discount in income
currently. This election to include market discount in income currently, once
made, applies to all market discount obligations acquired during or after the
first taxable year to which the election applies and may not be revoked without
the consent of the Internal Revenue Service. United States Holders should
consult with their own tax advisors in deciding whether to elect to include
market discount in income currently.
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Acquisition Premium. A United States Holder that purchases a Note for an
amount (excluding any amount paid for accrued interest) that is greater than its
adjusted issue price but equal to or less than the Note's remaining stated
redemption price at maturity will be considered to have purchased such Note at
an 'acquisition premium.' The amount of OID which such Holder must include in
its gross income with respect to such Note for any taxable year will be reduced
by the portion of such acquisition premium properly allocated to such year.
Sale, Exchange, Redemption or Repayment of the Notes. Upon the disposition
of a Note by sale, exchange, redemption, or repayment, a United States Holder
will generally recognize gain or loss equal to the difference between (i) the
amount realized on the disposition (other than amounts attributable to accrued
interest not previously included in income, which amounts will be taxable as
ordinary income) and (ii) the United States Holder's tax basis in the Note.
A United States Holder's tax basis in a Note generally will equal the cost
of the Note (net of accrued interest) to the United States Holder increased by
amounts includible in income as OID and market discount (if the Holder elects to
include market discount on a current basis), and reduced by any payment other
than payments of qualified stated interest made on such Note.
Such gain or loss (except to the extent that the market discount rules
discussed above otherwise provide) generally will constitute capital gain or
loss and will be long-term capital gain or loss if the United States Holder has
held such Note for longer than one year. Recently enacted legislation generally
provides that noncorporate taxpayers with net long-term capital gains will be
subject to reduced rates of taxation on such gains, which may vary depending
upon the periods which the assets giving rise to such gain were held. United
States Holders should consult their own tax advisors about these new capital
gain provisions.
Non-U.S. Holders. The following is a summary of certain United States
federal income tax consequences that may be relevant to a beneficial owner of
the Notes that is not a United States Person (a 'Non-U.S. Holder'). This summary
deals only with Non-U.S. Holders that are initial holders of the Notes and that
will hold the Notes as capital assets. It does not address the tax
considerations applicable to Non-U.S. Holders if income or gain in respect of
the Notes is effectively connected with the conduct of a trade or business in
the United States.
Generally, payments of interest (which for purposes of this discussion
includes OID) made with respect to the Notes to a Non-U.S. Holder will not be
subject to United States federal income or withholding tax, provided that (i)
the Non-U.S. Holder does not actually or constructively own 10% or more of the
total combined voting power of all classes of stock of the Company entitled to
vote, (ii) the Non-U.S. Holder is not a controlled foreign corporation for
United States tax purposes that is directly or indirectly related to the Company
through stock ownership and (iii) the Non-U.S. Holder complies with applicable
certification requirements.
Any capital gain realized on the sale, exchange, retirement or other
disposition of a Note by a Non-U.S. Holder will not be subject to United States
federal income or withholding taxes unless such Non-U.S. Holder is an individual
who is present in the United States for 183 days or more in the taxable year of
such sale, exchange, retirement or other disposition and meets certain
additional requirements.
Non-U.S. Holders to whom the above exemptions do not apply may nonetheless
be able to avail themselves of an applicable income tax treaty exemption from
United States federal income and withholding tax. Such persons should consult
with their tax advisors regarding the potential applicability to them of an
income tax treaty exemption.
Back-up Withholding. A United States Holder of a Note may be subject to
'back-up withholding' at the rate of 31% with respect to certain 'reportable
payments,' which generally include interest (including certain OID) payments.
These back-up withholding rules apply if such holder, among other things, (i)
fails to furnish a social security number or other taxpayer identification
number ('TIN') certified under penalties of perjury within a reasonable time
after the request therefor, (ii) furnishes an incorrect TIN, (iii) fails to
report properly interest or dividends, or (iv) under certain circumstances,
fails to provide a certified statement, signed under penalties of perjury, that
the TIN furnished is the correct number and that such holder is not subject to
back-up withholding. Any amount withheld from a payment to an investor under the
back-up withholding rules is creditable against such investor's U.S.
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federal income tax liability, provided the required information is furnished to
the IRS. Back-up withholding will not apply, however, with respect to payments
made to certain holders of the Notes, including corporations, tax-exempt
organizations and certain foreign persons, provided their exemption from back-up
withholding is properly established. Holders of Notes should consult their tax
advisors as to their qualification for exemption from U.S. backup withholding
and the procedure for obtaining such an exemption.
THE ABOVE SUMMARY IS NOT INTENDED TO CONSTITUTE A COMPLETE ANALYSIS OF ALL
U.S. INCOME TAX CONSEQUENCES RELATING TO THE PURCHASE, OWNERSHIP OR RETIREMENT
OF THE NOTES. PERSONS CONSIDERING AN EXCHANGE OF EXISTING NOTES FOR NEW NOTES
PURSUANT TO THE EXCHANGE OFFER OR THE PURCHASE, OWNERSHIP, OR DISPOSITION OF THE
NEW NOTES SHOULD CONSULT THEIR OWN TAX ADVISORS CONCERNING THE TAX CONSEQUENCES
OF THEIR PARTICULAR SITUATIONS.
PLAN OF DISTRIBUTION
The Existing Notes were issued and sold on January 15, 1998 in a
transaction exempt from the registration requirements of the Securities Act and
applicable state securities laws and may not be offered or sold in the United
States unless so registered or pursuant to an applicable exemption under the
Securities Act and applicable state securities laws. The New Notes are being
offered hereunder in order to satisfy certain obligations of the Company
contained in the Registration Rights Agreement. Based on an interpretation of
the Securities Act by the staff of the Commission set forth in several no-action
letters to third parties, including Exxon Capital, Morgan Stanley and similar
letters, the Company believes that the New Notes issued pursuant to the Exchange
Offer in exchange for Existing Notes may be offered for resale, resold and
otherwise transferred by holders thereof (other than any such holder that is an
Affiliate of the Company), without further compliance with the registration and
prospectus delivery requirements of the Securities Act, provided that such New
Notes are acquired in the ordinary course of such holders' business and such
holders are not engaged in, have no arrangement or understanding with any person
to participate in, and do not intend to engage in any distribution of, the New
Notes. However, the Company has not sought a no-action letter with respect to
the Exchange Offer and there can be no assurance that the Staff of the
Commission would make a similar determination with respect to the Exchange
Offer. Each holder of Existing Notes, other than a broker-dealer, must
acknowledge that it is not engaged in, has no arrangement or understanding with
any person to participate in, and does not intend to engage in a distribution of
New Notes. Any holder who tenders in the Exchange Offer for the purpose of
participating in a distribution of New Notes (i) will not be able to rely on the
interpretations of the staff of the Commission set forth in the above-referenced
no-action letters, (ii) will not be able to validly tender Existing Notes in the
Exchange Offer and (iii) must comply with the registration and prospectus
delivery requirements of the Securities Act in connection with any sale or
transfer of the New Notes, unless such sale or transfer is made pursuant to an
exemption from, or in a transaction not subject to, such requirements.
In addition, each broker-dealer that receives New Notes for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such New Notes. The Letter of
Transmittal accompanying this Prospectus states that by so acknowledging and by
delivering a prospectus, a broker-dealer will not be deemed to admit that it is
acting in the capacity of an 'underwriter' within the meaning of Section 2(11)
of the Securities Act. This Prospectus, as it may be amended or supplemented
from time to time, may be used by a broker-dealer in connection with resales of
New Notes received in exchange for Existing Notes where such Existing Notes were
acquired by such broker-dealer as a result of market-making activities or other
trading activities. Pursuant to the Registration Rights Agreement, the Company
has agreed that it will make this Prospectus available to any broker-dealer for
use in connection with any such resale.
The Company will not receive any proceeds from any sale of New Notes by
Participating Broker-Dealers. New Notes received by Participating Broker-Dealers
for their own account pursuant to the Exchange Offer may be sold from time to
time in one or more transactions in the over-the-counter market, in negotiated
transactions, through the writing of options on the New Notes or a combination
of
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such methods of resale, at market prices prevailing at the time of resale, at
prices related to such prevailing market prices or negotiated prices. Any such
resale may be made directly to purchasers or to or through brokers or dealers
who may receive compensation in the form of commissions or concessions from any
Participating Broker-Dealer and/or the purchasers of any such New Notes. Any
Participating Broker-Dealer that resells New Notes that were received by it for
its own account pursuant to the Exchange Offer and any broker or dealer that
participates in a distribution of such New Notes may be deemed to be an
'underwriter' within the meaning of the Securities Act and any profit on any
such resale of New Notes and any commissions or concessions received by any such
persons may be deemed to be underwriting compensation under the Securities Act.
The Letter of Transmittal states that by acknowledging that it will deliver and
by delivering a prospectus, a Participating Broker-Dealer will not be deemed to
admit that it is an 'underwriter' within the meaning of the Securities Act.
The Company will promptly send additional copies of this Prospectus and any
amendment or supplement to this Prospectus to any broker-dealer that requests
such documents in the Letter of Transmittal. The Company has agreed to pay all
expenses incident to the Exchange Offer other than commissions or concessions of
any broker-dealers and will indemnify holders of the Notes (including any
broker-dealers) against certain liabilities, including liabilities under the
Securities Act.
LEGAL MATTERS
The legality of the New Notes offered will be passed upon for the Company
by Leavy Rosensweig & Hyman, New York, New York. David Z. Rosensweig, a partner
in the firm of Leavy Rosensweig & Hyman, is the Secretary and a director of the
Company. Certain legal matters concerning the offering of the New Notes will be
passed upon for the Company by its securities counsel, Whitman Breed Abbott &
Morgan LLP, New York, New York. Certain legal matters will be passed upon for
the holders of Notes by Simpson Thacher & Bartlett (a partnership which includes
professional corporations), New York, New York.
EXPERTS
The consolidated financial statements and the related financial statement
schedules incorporated in this Prospectus by reference from Century
Communications Corp.'s Annual Report on Form 10-K for the fiscal year ended May
31, 1997 have been audited by Deloitte & Touche LLP, independent auditors, as
stated in their report which is incorporated herein by reference and has been so
incorporated in reliance upon the report of such firm given upon their authority
as experts in accounting and auditing.
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_____________________________ _____________________________
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR MAKE ANY
REPRESENTATION OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS AND, IF GIVEN OR
MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY ANY SECURITIES OTHER THAN THE SECURITIES TO
WHICH IT RELATES OR AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY SUCH
SECURITIES BY ANY PERSON IN ANY CIRCUMSTANCES IN WHICH SUCH OFFER OR
SOLICITATION IS UNLAWFUL. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE
MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE
HAS NOT BEEN ANY CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF OR
THAT THE INFORMATION HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO ITS DATE.
------------------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Available Information...................................................................................................... 3
Information Incorporated by
Reference................................................................................................................ 3
Forward-Looking Statements................................................................................................. 4
Summary.................................................................................................................... 6
The Company................................................................................................................ 6
Risk Factors............................................................................................................... 12
Ratio of Earnings to Fixed Charges......................................................................................... 16
Use of Proceeds............................................................................................................ 17
The Exchange Offer......................................................................................................... 20
Description of the Notes................................................................................................... 28
Certain Federal Income Tax Considerations.................................................................................. 42
Plan of Distribution....................................................................................................... 45
Legal Matters.............................................................................................................. 46
Experts.................................................................................................................... 46
</TABLE>
$605,000,000
CENTURY
COMMUNICATIONS
CORP.
OFFER TO EXCHANGE
$605,000,000 OF THE COMPANY'S
SENIOR DISCOUNT NOTES DUE 2008, SERIES B, WHICH HAVE BEEN
REGISTERED UNDER THE SECURITIES ACT,
FOR $605,000,000 OF ITS
OUTSTANDING SENIOR DISCOUNT NOTES
DUE 2008, SERIES A
-------------------------
PROSPECTUS
-------------------------
MARCH , 1998
_____________________________ _____________________________
<PAGE>
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 14A:3-5 of the New Jersey Business Corporations Act provides the
following with respect to the indemnification of directors, officers and
employees:
(1) As used in this section,
(a) 'Corporate agent' means any person who is or was a director,
officer, employee or agent of the indemnifying corporation or of any
constituent corporation absorbed by the indemnifying corporation in a
consolidation or merger and any person who is or was a director,
officer, trustee, employee or agent of any other enterprise, serving as
such at the request of the indemnifying corporation, or of any such
constituent corporation, or the legal representative of any such
director, officer, trustee, employee or agent;
(b) 'Other enterprise' means any domestic or foreign corporation,
other than the indemnifying corporation, and any partnership, joint
venture, sole proprietorship, trust, or other enterprise, whether or not
for profit, served by a corporate agent;
(c) 'Expenses' means reasonable costs, disbursements and counsel
fees;
(d) 'Liabilities' means amounts paid or incurred in satisfaction of
settlements, judgments, fines and penalties;
(e) 'Proceeding' means any pending, threatened or completed civil,
criminal, administrative or arbitrative action, suit or proceeding, and
any appeal therein and any inquiry or investigation which could lead to
such action, suit or proceeding; and
(f) References to 'other enterprises' include employee benefit
plans; references to 'fines' include any excise taxes assessed on a
person with respect to an employee benefit plan; and references to
'serving at the request of the indemnifying corporation' include any
service as a corporate agent which imposes duties on, or involves
services by, the corporate agent with respect to an employee benefit
plan, its participants, or beneficiaries; and a person who acted in good
faith and in a manner the person reasonably believed to be in the
interest of the participants and beneficiaries of an employee benefit
plan shall be deemed to have acted in a manner 'not opposed to the best
interests of the corporation' as referred to in this section.
(2) Any corporation organized for any purpose under any general or
special law of this State shall have the power to indemnify a corporate
agent against his expenses and liabilities in connection with any
proceeding involving the corporate agent by reason of his being or having
been such a corporate agent, other than a proceeding by or in the right of
the corporation, if
(a) such corporate agent acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation; and
(b) with respect to any criminal proceeding, such corporate agent
had no reasonable cause to believe his conduct was unlawful. The
termination of any proceeding by judgment, order, settlement, conviction
or upon a plea of nolo contendere or its equivalent shall not of itself
create a presumption that such corporate agent did not meet the
applicable standards of conduct set forth in paragraphs 14A:3-5(2)(a)
and 14A:3-5(2)(b).
(3) Any corporation organized for any purpose under any general or
special law of this State shall have the power to indemnify a corporate
agent against his expenses in connection with any proceeding by or in the
right of the corporation to procure a judgment in its favor which involves
the corporate agent by reason of his being or having been such corporate
agent, if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the corporation. However, in
such proceeding no indemnification shall be provided in respect of any
claim, issue or matter as to which such corporate agent shall have been
adjudged to be liable to the corporation, unless and only to the extent
that the Superior Court or the court in which such proceeding was brought
shall determine upon application that despite the adjudication of
liability,
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<PAGE>
but in view of all circumstances of the case, such corporate agent is
fairly and reasonably entitled to indemnity for such expenses as the
Superior Court or such other court shall deem proper.
(4) Any corporation organized for any purpose under any general or
special law of this State shall indemnify a corporate agent against
expenses to the extent that such corporate agent has been successful on the
merits or otherwise in any proceeding referred to in subsections 14A:3-5(2)
and 14A:3-5(3) or in defense of any claim, issue or matter therein.
(5) Any indemnification under subsection 14A:3-5(2) and, unless
ordered by a court, under subsection 14A:3-5(3), may be made by the
corporation only as authorized in a specific case upon a determination that
indemnification is proper in the circumstances because the corporate agent
met the applicable standard of conduct set forth in subsection 14A:3-5(2)
or subsection 14A:3-5(3). Unless otherwise provided in the certificate of
incorporation or bylaws, such determination shall be made
(a) by the board of directors or a committee thereof, acting by a
majority vote of a quorum consisting of directors who were not parties
to or otherwise involved in the proceeding; or
(b) if such a quorum is not obtainable, or, even if obtainable and
such quorum of the board of directors or committee by a majority vote of
the disinterested directors so directs, by independent legal counsel, in
a written opinion, such counsel to be designated by the board of
directors; or
(c) by the shareholders if the certificate of incorporation or
by-laws or a resolution of the board of directors or of the shareholders
so directs.
(6) Expenses incurred by a corporate agent in connection with a
proceeding may be paid by the corporation in advance of the final
disposition of the proceeding as authorized by the board of directors upon
receipt of an undertaking by or on behalf of the corporate agent to repay
such amount if it shall ultimately be determined that he is not entitled to
be indemnified as provided in this section.
(7) (a) If a corporation upon application of a corporate agent has
failed or refused to provide indemnification as required under subsection
14A:3-5(4) or permitted under subsections 14A:3-5(2), 14A:3-5(3) and
14A:3-5(6), a corporate agent may apply to a court for an award of
indemnification by the corporation, and such court
(i) may award indemnification to the extent authorized under
subsections 14A:3-5(2) and 14A:3-5(3) and shall award indemnification to
the extent required under subsection 14A:3-5(4), notwithstanding any
contrary determination which may have been made under subsection
14A:3-5(5); and
(ii) may allow reasonable expenses to the extent authorized by, and
subject to the provisions of, subsection 14A:3-5(6), if the court shall
find that the corporate agent has by his pleadings or during the course
of the proceeding raised genuine issues of fact or law.
(b) Application for such indemnification may be made
(i) in the civil action in which the expenses were or are to be
incurred or other amounts were or are to be paid; or
(ii) to the Superior Court in a separate proceeding. If the
application is for indemnification arising out of a civil action, it
shall set forth reasonable cause for the failure to make application for
such relief in the action or proceeding in which the expenses were or
are to be incurred or other amounts were or are to be paid.
The application shall set forth the disposition of any previous
application for indemnification and shall be made in such manner and
form as may be required by the applicable rules of court or, in the
absence thereof, by direction of the court to which it is made. Such
application shall be upon notice to the corporation. The court may also
direct that notice shall be given at the expense of the corporation to
the shareholders and such other persons as it may designate in such
manner as it may require.
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<PAGE>
(8) The indemnification and advancement of expenses provided by or
granted pursuant to the other subsections of this section shall not exclude
any other rights, including the right to be indemnified against liabilities
and expenses incurred in proceedings by or in the right of the corporation,
to which a corporate agent may be entitled under a certificate of
incorporation, by-law, agreement, vote of shareholders, or otherwise;
provided that no indemnification shall be made to or on behalf of a
corporate agent if a judgment or other final adjudication adverse to the
corporate agent establishes that his acts or omissions (a) were in breach
of his duty of loyalty to the corporation or its shareholders, as defined
in subsection (3) of N.J.S.14A:2-7, (b) were not in good faith or involved
a knowing violation of law or (c) resulted in receipt by the corporate
agent of an improper personal benefit.
(9) Any corporation organized for any purpose under any general or
special law of this State shall have the power to purchase and maintain
insurance on behalf of any corporate agent against any expenses incurred in
any proceeding and any liabilities asserted against him by reason of his
being or having been a corporate agent, whether or not the corporation
would have the power to indemnify him against such expenses and liabilities
under the provisions of this section. The corporation may purchase such
insurance from, or such insurance may be reinsured in whole or in part by,
an insurer owned by or otherwise affiliated with the corporation, whether
or not such insurer does business with other insureds.
(10) The powers granted by this section may be exercised by the
corporation, notwithstanding the absence of any provision in its
certificate of incorporation or bylaws authorizing the exercise of such
powers.
(11) Except as required by subsection 14A:3-5(4), no indemnification
shall be made or expenses advanced by a corporation under this section, and
none shall be ordered by a court, if such action would be inconsistent with
a provision of the certificate of incorporation, a bylaw, a resolution of
the board of directors or of the shareholders, an agreement or other proper
corporate action, in effect at the time of the accrual of the alleged cause
of action asserted in the proceeding, which prohibits, limits or otherwise
conditions the exercise of indemnification powers by the corporation or the
rights of indemnification to which a corporate agent may be entitled.
(12) This section does not limit a corporation's power to pay or
reimburse expenses incurred by a corporate agent in connection with the
corporate agent's appearance as a witness in a proceeding at a time when
the corporate agent has not been made a party to the proceeding.
Paragraph (2) of Article Eighth of the Certificate of Incorporation of the
Company provides, in pertinent part, as follows:
The Corporation shall, to the fullest extent permitted by Section
14A:3-5 of the Business Corporation Act, as the same may be amended and
supplemented, indemnify any and all corporate agents whom it shall have the
power to indemnify under said Section from and against any and all of the
expenses, liabilities or other matters referred to in or covered by said
Section, and the indemnification provided for herein shall not be deemed
exclusive of any other rights to which those indemnified may be entitled
under any by-law, agreement, vote of stockholders or otherwise and shall
continue as to a person who has ceased to be a corporate agent and shall
inure to the benefit of the heirs, executors, administrators and personal
representatives of such a corporate agent. The term 'corporate agent' as
used herein shall have the meaning attributed to it by Sections 14A:3-5 and
14A:5-21 of the Business Corporation Act and by any other applicable
provision of law.
Section 6.1 of the By-laws of the Company provides, in pertinent part, as
follows:
The Corporation shall, to the full extent permitted by applicable law,
indemnify any person (and the heirs, executors and administrators of such
person) who, by reason of the fact that he is or was a director, officer,
employee or agent of the Corporation or of a constituent corporation
absorbed by the Corporation in a consolidation or merger or is or was
serving at the request of the Corporation or such constituent corporation
as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, was or is a party or
is threatened to be made a party to:
II-3
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<PAGE>
(a) any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the Corporation), against
expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by such person in
connection with any such action, suit or proceeding, or (b) any
threatened, pending or completed action or suit by or in the right of
the Corporation to procure a judgment in its favor, against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit.
Any indemnification by the Corporation pursuant hereto shall be made
only in the manner and to the extent authorized by applicable law, and any
such indemnification shall not be deemed exclusive of any other rights to
which those seeking indemnification may otherwise be entitled.
Section 6.5 of the By-laws of the Company provides, in pertinent part, as
follows:
The Corporation may purchase and maintain insurance to protect itself
and any person who is, or may become an officer, director, employee, agent,
attorney, trustee or representative (any of the foregoing being referred to
as a 'Representative') of the Corporation against any expenses, liability
or loss asserted against him or her or incurred by him or her in connection
with any Proceeding in any such capacity, or arising out of his or her
status as such, whether or not the Corporation would have the power to
indemnify him or her against such expense, liability or loss under the
provisions of this By-law or otherwise. The Corporation may enter into
contracts with any Representative of the Corporation, or any person serving
as such at the request of the Corporation for another corporation or
entity, in furtherance of the provisions of this By-law.
Section 6 of the Underwriting Agreement Basic Provisions, which constitutes
Exhibit 1 to the Registration Statements and is incorporated herein by
reference, provides for indemnification, under certain circumstances, of the
Company, certain of its directors and officers and persons who control the
Company against certain liabilities in connection with this offering, including
liabilities under the Securities Act.
ITEM 21. EXHIBITS.
<TABLE>
<C> <S>
1 -- Purchase Agreement dated January 8, 1998 between the Company and Merrill Lynch, Pierce, Fenner & Smith
Incorporated.'D'
3 -- Certificate of Incorporation and By-laws of the Company (incorporated by reference to Exhibit 3 to the
Company's Annual Report on Form 10-K for the Fiscal Year Ended May 31, 1995).
4 -- Indenture dated January 15, 1998 between the Company and First Trust of California National Association, as
Trustee.'D'
5 -- Opinion of Leavy Rosensweig & Hyman.'D'
11 -- Computation of Per Share Earnings (incorporated by reference to Exhibit 11 to the Company's Quarterly
Report on Form 10-Q for the Quarterly Period Ended November 30, 1997).
12 -- Computation of Ratios of Earnings to Fixed Charges.'D'
21 -- Subsidiaries of the Company.'D'
23.1 -- Consent of Deloitte & Touche LLP.'D'
23.2 -- Consent of Leavy Rosensweig & Hyman (included in Exhibit 5 of the Registration Statement).'D'
24 -- Power of Attorney (included in Part II of the Registration Statement).'D'
25 -- Statement of Eligibility and Qualification of Trustee under the Indenture on Form T-1.'D'
99.1 -- Registration Rights Agreement dated January 15, 1998 between the Company and the Initial Purchaser.'D'
99.2 -- Form of Letter of Transmittal.'D'
99.3 -- Form of Notice of Guaranteed Delivery.'D'
99.4 -- Form of Letter to Brokers.'D'
99.5 -- Form of Letter to Clients.'D'
</TABLE>
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'D' Filed herewith
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ITEM 22. UNDERTAKINGS.
The undersigned Company hereby undertakes:
(1) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the Company's annual report pursuant
to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 that is
incorporated by reference in the Registration Statement shall be deemed to
be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(2) The undersigned registrant hereby undertakes as follows: that
prior to any public reoffering of the securities registered hereunder
through use of a prospectus which is a part of this registration statement,
by any person or party who is deemed to be an underwriter within the
meaning of Rule 145(c), the issuer undertakes that such reoffering
prospectus will contain the information called for by the applicable
registration form with respect to reofferings by persons who may be deemed
underwriters, in addition to the information called for by the other Items
of the applicable form.
(3) The registrant undertakes that every prospectus (i) that is filed
pursuant to paragraph (2) immediately preceding, or (ii) that purports to
meet the requirements of section 10 (a)(3) of the Act and is used in
connection with an offering of securities subject to Rule 415 (SS230.415 of
this chapter), will be filed as a part of an amendment to the registration
statement and will not be used until such amendment is effective, and that,
for purposes of determining any liability under the Securities Act of 1933,
each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial bona fide
offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Company pursuant to the provisions described under Item 15 above, or otherwise,
the Company has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act of 1933 and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the Company of expenses incurred or paid by a director, officer or controlling
person of the Company in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling persons in
connection with the securities being registered, the Company will, unless in the
opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act of 1933 and will be governed by the final adjudication of such issue.
II-5
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Company has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the Town of New Canaan, State of
Connecticut, on the 27th day of February, 1998.
CENTURY COMMUNICATIONS CORP.
By: /s/ BERNARD P. GALLAGHER
.................................
BERNARD P. GALLAGHER,
PRESIDENT AND CHIEF OPERATING OFFICER
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below hereby constitutes and appoints Leonard Tow, Bernard P. Gallagher, Scott
N. Schneider and David Z. Rosenszweig, his true and lawful attorneys-in-fact and
agents with full power of substitution and resubstitution, for him and in his
name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto such
attorneys-in-fact and agents full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as they might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or any of them, or their substitute, may lawfully do or cause to be done
by virtue hereof.
Pursuant to the requirement of the Securities Act of 1933, as amended, this
Registration Statement has been signed below by the following persons, in the
capacities indicated, on February 27, 1998.
<TABLE>
<CAPTION>
NAME TITLE
- ------------------------------------------ ---------------------------------------------------------------------
<C> <S>
/S/ LEONARD TOW Chairman of the Board, Chief Executive Officer
......................................... and Director (principal executive officer)
(LEONARD TOW)
/S/ SCOTT N. SCHNEIDER Chief Financial Officer, Senior Vice President,
......................................... Treasurer and Director (principal accounting officer)
(SCOTT N. SCHNEIDER)
/S/ BERNARD P. GALLAGHER President, Chief Operating Officer and Director
.........................................
(BERNARD P. GALLAGHER)
/S/ WILLIAM M. KRAUS Director
.........................................
(WILLIAM M. KRAUS)
/S/ DAVID Z. ROSENSWEIG Director
.........................................
(DAVID Z. ROSENSWEIG)
/S/ MICHAEL G. HARRIS Director
.........................................
(MICHAEL G. HARRIS)
/S/ DANIEL E. GOLD Director
.........................................
(DANIEL E. GOLD)
</TABLE>
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<PAGE>
<TABLE>
<C> <S>
/S/ CLAIRE TOW Director
.........................................
(CLAIRE TOW)
/S/ DAVID ROSS MILLER Director
.........................................
(DAVID ROSS MILLER)
/S/ JOHN P. COLE, JR. Director
.........................................
(JOHN P. COLE, JR.)
</TABLE>
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<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT PAGE
NUMBER DESCRIPTION OF EXHIBIT NUMBER
- ------ -------------------------------------------------------------------------------------------------- ------
<C> <S> <C>
1 -- Purchase Agreement dated January 8, 1998 between the Company and Merrill Lynch, Pierce, Fenner
& Smith Incorporated'D'.........................................................................
3 -- Certificate of Incorporation and By-laws of the Company (incorporated by reference to Exhibit 3
to the Company's Annual Report on Form 10-K for the Fiscal Year Ended May 31, 1995).............
4 -- Indenture dated January 15, 1998 between the Company and First Trust of California National
Association, as Trustee'D'......................................................................
5 -- Opinion of Leavy Rosensweig & Hyman'D'.........................................................
11 -- Computation of Per Share Earnings (incorporated by reference to Exhibit 11 to the Company's
Quarterly Report on Form 10-Q for the Quarterly Period Ended November 30, 1997).................
12 -- Computation of Ratios of Earnings to Fixed Charges'D'..........................................
21 -- Subsidiaries of the Company'D'.................................................................
23.1 -- Consent of Deloitte & Touche LLP'D'............................................................
23.2 -- Consent of Leavy Rosensweig & Hyman (included in Exhibit 5 of the Registration Statement)'D'...
24 -- Power of Attorney (included in Part II of the Registration Statement).'D'
25 -- Statement of Eligibility and Qualification of Trustee under the Indenture on Form T-1.'D'......
99.1 -- Registration Rights Agreement dated January 15, 1998 between the Company and the Initial
Purchaser.'D'...................................................................................
99.2 -- Form of Letter of Transmittal.'D'..............................................................
99.3 -- Form of Notice of Guaranteed Delivery.'D'......................................................
99.4 -- Form of Letter to Brokers.'D'..................................................................
99.5 -- Form of Letter to Clients.'D'..................................................................
</TABLE>
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'D' Filed herewith
STATEMENT OF DIFFERENCES
The section symbol shall be expressed as...................................'SS'
The dagger symbol shall be expressed as.................................... 'D'
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$605,000,000
CENTURY COMMUNICATIONS CORP.
SENIOR DISCOUNT NOTES DUE 2008
PURCHASE AGREEMENT
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
North Tower
World Financial Center
New York, New York 10281-1209
Ladies and Gentlemen:
1. Introductory. Century Communications Corp., a New Jersey
corporation (the "Company"), proposes, subject to the terms and conditions
stated herein, to issue and sell to the you, as the initial purchaser (the
"Purchaser"), $605,000,000 principal amount of its Senior Discount Notes Due
2008 (the "Offered Securities") to be issued under an indenture, dated as of
January 15, 1998 (the "Indenture"), between the Company and First Trust of
California, National Association, as Trustee (the "Trustee"). The Securities Act
of 1933, as amended, is herein referred to as the "Act" or the "Securities Act."
The Company understands that the Purchaser proposes to make an
offering of the Offered Securities on the terms and the manner set forth herein
and agrees that the Purchaser may resell, subject to the conditions set forth
herein, all or a portion of the Offered Securities to purchasers (the
"Subsequent Purchasers") at any time after the date of this Agreement. The
Offered Securities are to be offered and sold through the Purchaser without
being registered under the Act, in reliance upon exemptions threrefrom. Pursuant
to the terms of the Offered Securities and the Indenture, investors who acquire
Offered Securities may only resell or otherwise transfer such Offered Securities
if such Offered Securities are hereafter registered under the Act or if an
exemption from the registration requirements of the Act is
<PAGE>
<PAGE>
available (including the exemption afforded by Rule 144A ("Rule 144A") or
Regulation S ("Regulation S") of the rules and regulations promulgated under the
Act by the Securities and Exchange Commission (the "Commission")).
The Company will deliver to the Purchaser, no later than
January 13, 1998, copies of a final offering memorandum dated January 8, 1998
(the "Final Offering Memorandum") for use by the Purchaser in connection with
its solicitation of purchases or offering of the Offered Securities. "Offering
Document" means, with respect to any date or time referred to in this Agreement,
the most recent offering memorandum (whether the Final Offering Memorandum or
any amendment or supplement to such document), including exhibits thereto and
any documents incorporated by reference therein, which has been prepared and
delivered by the Company to the Purchaser in connection with their solicitation
of purchases or offering of the Offered Securities.
All references in this Agreement to financial statements and
schedules and other information that is "contained," "included" or "stated" in
the Offering Document (or other references of like import) shall be deemed to
mean and include all such financial statements and schedules and other
information that is incorporated by reference in the Offering Document and all
references in this Agreement to amendments and supplements to the Offering
Document shall be deemed to mean and include the filing or any document under
the Securities Exchange Act of 1934 (the "Exchange Act") that is incorporated by
reference in the Offering Document.
2. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, the Purchaser that:
(a) The Offering Document does not, and on the Closing Date
will not, include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided that this
representation, warranty and agreement shall not apply to statements in or
omissions from the Offering Document made in reliance upon and in conformity
with information furnished to the Company in writing by the Purchaser expressly
for use in the Offering Document. The information required to be delivered to
holders and prospective purchasers of the Offered Securities in accordance with
Rule 144A(d)(4) under the Securities Act (the "Additional Issuer Information"),
to the extent that such information is delivered on or prior to the Closing
Date, does not include any untrue statement of a material fact or omit to state
any material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The Company makes no
representation or warranty as to information contained in or omitted from the
Offering Document in reliance upon and in
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<PAGE>
conformity with written information furnished to the Company by or on behalf of
the Purchaser specifically for inclusion therein.
(b) The documents incorporated by reference in the Offering
Document, when they became effective or were filed with the Commission, as the
case may be, under the Securities Exchange Act of 1934 (the "Exchange Act"),
conformed, and any documents so filed and incorporated by reference after the
date hereof will, when they are filed with the Commission, conform, in all
material respects to the requirements of the Act and the Exchange Act, as
applicable, and the rules and regulations of the Commission thereunder.
(c) Neither the Company nor any of its subsidiaries (as
defined in Rule 405 under the Securities Act) is in violation of its corporate
charter or by-laws or in default under any agreement, indenture or instrument,
the effect of which violation or default would be material to the Company and
its subsidiaries taken as a whole; neither the issuance or sale of the Offered
Securities nor the consummation of any other of the transactions contemplated
herein nor fulfillment of the terms of this Agreement, the Indenture or the
Registration Rights Agreement dated the Closing Date, between the Purchaser and
the Company (the "Registration Rights Agreement") will conflict with, result in
the creation or imposition of any lien, charge or encumbrance which is material
to the Company and its subsidiaries taken as a whole upon any of the assets of
the Company or any of its subsidiaries pursuant to the terms of, or constitute a
default under, any agreement, indenture or instrument, or result in a violation
of the corporate charter or by-laws of the Company or any of its subsidiaries or
any order, rule or regulation of any court or governmental agency having
jurisdiction over the Company, any of its subsidiaries or their property, the
effect of which default or violation would be material to the Company and its
subsidiaries taken as a whole; and except such as may be required by the
securities or Blue Sky laws of the various states in connection with the offer
and sale of the Offered Securities, no consent, authorization or order of, or
filing or registration with, any court or governmental agency is required for
the execution, delivery and performance of this Agreement.
(d) Except as described in or contemplated by the Offering
Document, subsequent to the respective dates as of which information is given in
the Offering Document, there has not been any material adverse change in, or any
adverse development which materially affects, the business, franchises,
properties, financial condition, results of operations or prospects of the
Company and its subsidiaries taken as a whole.
(e) The Indenture relating to the Offered Securities has been
validly authorized and, when executed by the proper officers of the Company
(assuming the due execution and delivery thereof by the Trustee) and delivered
by the Company, will constitute the
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<PAGE>
<PAGE>
legally binding obligation of the Company enforceable against the Company in
accordance with its terms; the Offered Securities have been validly authorized,
and, upon due execution, authentication and delivery against payment therefor in
accordance with the provisions of this Agreement and the Indenture, will be
validly issued, outstanding and enforceable against the Company in accordance
with its terms and will constitute legally binding obligations of the Company
entitled to the benefits of the Indenture; and the Offered Securities and the
Indenture will conform to the descriptions thereof contained in the Offering
Document. The Registration Rights Agreement, when executed and delivered by the
Company, will have been duly authorized, executed and delivered by the Company,
will conform to the description thereof contained in the Offering Document and
(assuming due authorization, execution and delivery by the Purchaser) will
constitute a valid and legally binding obligation of the Company, enforceable in
accordance with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity principles.
(f) This Agreement has been duly authorized, executed and
delivered by the Company.
(g) Each of the Company and its subsidiaries has been duly
incorporated, is validly existing and in good standing under the laws of its
jurisdiction of incorporation, is duly qualified to do business and in good
standing as a foreign corporation in each jurisdiction in which its respective
ownership or lease of property or the conduct of its respective business
requires such qualification (except where the failure so to qualify would not
have a material adverse effect on the Company and its subsidiaries taken as a
whole), and has all corporate power and authority necessary to own or hold its
respective properties and to conduct the business in which it is engaged. Except
as described in the Offering Document, all of the outstanding shares of each of
the Company's subsidiaries are owned by the Company directly, or indirectly
through wholly-owned subsidiaries, free and clear of any liens, claims or
encumbrances, have been duly authorized and are validly issued and outstanding,
fully paid and nonassessable.
(h) Except as set forth in or contemplated by the Offering
Document, there is no material litigation or governmental proceeding pending or,
to the knowledge of the Company, threatened against the Company or any of its
subsidiaries which will result in any material adverse change in the business,
properties, franchises, financial condition, results of operations or prospects
of the Company and its subsidiaries taken as a whole or which is required to be
disclosed in a document incorporated by reference in the Offering Document.
(i) The financial statements and schedules and information of
the Company incorporated by reference in the
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<PAGE>
<PAGE>
Offering Document fairly present the financial condition and results of
operations of the entities purported to be shown thereby, at the dates and for
the periods indicated, and have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis throughout the
periods involved. Deloitte & Touche LLP, who have examined such financial
statements, as set forth in their report incorporated by reference in the
Offering Document, are independent public accountants within the meaning of the
Act and the rules and regulations thereunder.
(j) There are no contracts or other documents which are
required by the Exchange Act to be filed as exhibits to a document incorporated
by reference in the Offering Document that have not been so filed.
(k) No securities of the same class (within the meaning of
Rule 144A(d)(3) under the Securities Act) as the Offered Securities are listed
on any national securities exchange registered under Section 6 of the Exchange
Act or quoted in a U.S. automated inter-dealer quotation system.
(l) The offer and sale of the Offered Securities by the
Company to the Purchaser in the manner contemplated by this Agreement will be
exempt from the registration requirements of the Act by reason of Section 4(2)
thereof and Regulation S; and it is not necessary to qualify an indenture in
respect of the Offered Securities under the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act").
(m) Neither the Company nor any of its affiliates (as defined
in Rule 501(b) of Regulation D under the Act), nor any person acting on its or
their behalf (i) has, within the six-month period prior to the date hereof,
offered or sold in the United States or to any U.S. person (as such terms are
defined in Regulation S under the Act) the Offered Securities, or any security
of the same class or series as the Offered Securities, (ii) has offered or will
offer or sell the Offered Securities (A) in the United States by means of any
form of general solicitation or general advertising within the meaning of Rule
502(c) under the Securities Act or (B) with respect to any such securities sold
in reliance on Rule 903 of Regulation S under the Securities Act, by means of
any directed selling efforts within the meaning of Rule 902(b) of Regulation S
or (iii) has directly or indirectly taken any action with respect to any
security that is or would be required to be integrated with the sale of the
Offered Securities in a manner that would require the Offered Securities to be
integrated with the sale hereunder and require registration under the Act. The
Company, its affiliates and any person acting on its behalf have complied and
will comply with the offering restrictions requirements of Regulation S. The
Company has not entered and will not enter into any contractual arrangement with
respect to the distribution of the Offered Securities except for this Agreement.
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3. Purchase, Sale and Delivery of Offered Securities. On the
basis of the representations, warranties and agreements herein contained, but
subject to the terms and conditions herein set forth, the Company agrees to sell
to the Purchaser, and the Purchaser agrees to purchase from the Company, the
Offered Securities at a purchase price of 40.67863% of the principal amount
thereof plus accrued amortization from the date hereof to the Closing Date (as
hereinafter defined).
The Company will deliver against payment of the purchase price
the Offered Securities to be purchased by the Purchaser hereunder in the form of
one or more permanent global securities in definitive form without interest
coupons (the "Global Securities") deposited with the Trustee as custodian for
the Depository Trust Company ("DTC") and registered in the name of Cede & Co.,
as nominee for DTC. The Global Securities shall include the legend regarding
restrictions on transfer set forth under "Transfer Restrictions" in the Offering
Document. Interests in any permanent global securities will be held only in
book-entry form through DTC except in the limited circumstances described in the
Offering Document.
Payment for the Offered Securities shall be made by the
Purchaser in Federal (same day) funds by official check or checks or wire
transfer to an account previously designated to the Purchaser by the Company at
a bank acceptable to the Purchaser drawn to the order of the Company at the
office of Simpson Thacher & Bartlett, 425 Lexington Avenue, New York, New York
10017, at 10:00 A.M. (New York time), on January 15, 1998, or at such other time
not later than seven full business days thereafter as the Purchaser and the
Company determine, such time being herein referred to as the "Closing Date",
against delivery to the Trustee as custodian for DTC of the Global Securities.
The Global Securities will be made available for inspection at the above office
at least 24 hours prior to the Closing Date.
4. Representations by Purchaser; Resale by Purchaser. (a) The
Purchaser represents and warrants to the Company that it is an "accredited
investor" within the meaning of Regulation D under the Act.
(b) Offers and sales of the Offered Securities shall only be
made to persons whom the offeror or seller reasonably believes to be qualified
institutional buyers (as defined in Rule 144A) or to non-U.S. persons outside
the United States (as defined in Regulation S), to whom the offeror or seller
reasonably believes offers and sales of the Offered Securities may be made in
reliance upon Regulation S.
(c) No sale of the Offered Securities to any one Subsequent
Purchaser will be for less than $250,000 principal amount and no security will
be issued in a smaller principal amount. If the Subsequent Purchaser is a
non-bank fiduciary acting
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on behalf of others, each person for whom it is acting must purchase at least
$250,000 principal amount of the Offered Securities.
(d) The Purchaser agrees that it and each of its affiliates
will not offer or sell the Offered Securities in the United States by means of
any form of general solicitation or general advertising within the meaning of
Rule 502(c) under the Act.
(e) The Purchaser represents and agrees that (i) it has not
offered or sold and prior to the date six months after the date of issue of the
Offered Securities will not offer or sell any Offered Securities to persons in
the United Kingdom except to persons whose ordinary activities involve them in
acquiring, holding, managing or disposing of investments (as principal or agent)
for the purposes of their businesses or otherwise in circumstances which have
not resulted and will not result in an offer to the public in the United Kingdom
within the meaning of the Public Offers of Securities Regulations 1995; (ii) it
has complied and will comply with all applicable provisions of the Financial
Services Act 1986 with respect to anything done by it in relation to the Offered
Securities in, from or otherwise involving the United Kingdom; and (iii) it has
only issued or passed on and will only issue or pass on in the United Kingdom
any document received by it in connection with the issue of the Offered
Securities to a person who is of a kind described in Article 11(3) of the
Financial Services Act 1986 (Investment Advertisements) (Exemptions) Order 1996
or is a person to whom such document may otherwise lawfully be issued or passed
on.
5. Certain Agreements of the Company. The Company agrees with
the Purchaser that:
(a) The Company will advise the Purchaser promptly of any
proposal to amend or supplement the Offering Document and will not effect such
amendment or supplementation without the Purchaser's consent. If, at any time
any event occurs as a result of which, in the reasonable opinion of Company, its
counsel, the Purchaser or its counsel, the Offering Document as then amended or
supplemented would include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading, the
Company promptly will notify the Purchaser of such event and promptly will
prepare, at its own expense, an amendment or supplement which will correct such
statement or omission. Neither the Purchaser's consent to, nor the Purchaser's
delivery to offerees or investors of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 6.
(b) The Company will furnish to the Purchaser copies of the
Offering Document and all amendments and supplements thereto,
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as soon as available and in such quantities as the Purchaser requests, and the
Company will furnish to the Purchaser on the date of first publication thereof
one copy of the Offering Document which will include the independent
accountants' reports therein manually signed by such independent accountants. At
any time when the Company is not subject to Section 13 or 15(d) of the Exchange
Act, the Company will promptly furnish or cause to be furnished to the Purchaser
(and, upon request, to each Subsequent Purchaser, if any) and, upon request of
holders and prospective purchasers of the Offered Securities, to such holders
and purchasers, copies of the information required to be delivered to holders
and prospective purchasers of the Offered Securities pursuant to Rule 144A(d)(4)
under the Securities Act (or any successor provision thereto) in order to permit
compliance with Rule 144A in connection with resales by such holders of the
Offered Securities. The Company will pay the expenses of printing and
distributing to the Purchaser and any Subsequent Purchaser all such documents.
(c) The Company will arrange for the qualification of the
Offered Securities for sale and the determination of their eligibility for
investment under the laws of such jurisdictions in the United States as the
Purchaser designates and will continue such qualifications in effect so long as
required for the resale of the Offered Securities by the Purchaser, provided
that the Company will not be required to qualify as a foreign corporation or to
file a general consent to service of process in any such state or jurisdiction.
(d) So long as the Offered Securities are outstanding, the
Company will furnish to the Purchaser copies of all public reports and all
reports and financial statements furnished by the Company to the American Stock
Exchange, Inc. pursuant to requirements of or agreements with such exchange or
to the Commission pursuant to the Exchange Act or any rule or regulation of the
Commission thereunder.
(e) During the period of two years after the Closing Date, the
Company will, upon request, furnish to the Purchaser and any Subsequent
Purchaser a copy of the restrictions on transfer applicable to the Offered
Securities.
(f) During the period of two years after the Closing Date, the
Company will not, and will not permit any of its affiliates (as defined in Rule
144 under the Securities Act) to, resell any of the Offered Securities that have
been reacquired by any of them.
(g) The Company will pay the costs incident to the
authorization, issuance, sale and delivery of the Offered Securities and any
taxes payable in that connection; the costs incident to the preparation and
printing of the Offering Document and any amendments or supplements; the costs
of distributing to the Purchaser and any Subsequent Purchaser of the Offering
Document and
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any amendment or supplement thereto as provided in this Agreement; the fees paid
to rating agencies in connection with the rating of the Offered Securities; the
reasonable fees and expenses of qualifying the Offered Securities under the
securities laws of the several jurisdictions as provided in this Paragraph and
of preparing and printing a Blue Sky Memorandum (including related fees and
expenses of counsel for the Purchaser); and all other costs and expenses
incident to the performance of the obligations of the Purchaser under this
Agreement; provided that, except as provided in this Paragraph, the Purchaser
shall pay its own costs and expenses, including the fees and expenses of its
counsel and any transfer taxes on the Offered Securities which it may sell. In
addition, the Company agrees to pay the reasonable fees and expenses of the
Trustee and its professional advisers and the cost of qualifying the Offered
Securities for trading in The PortalSM Market ("PORTAL") and any expenses
incidental thereto.
(h) In connection with the offering, until the Purchaser shall
have notified the Company of the completion of the resale of the Offered
Securities, neither the Company nor any of its affiliates has or will, either
alone or with one or more other persons, bid for or purchase for any account in
which it or any of its affiliates has a beneficial interest any Offered
Securities or attempt to induce any person to purchase any Offered Securities;
and neither it nor any of its affiliates will make bids or purchases for the
purpose of creating actual, or apparent, active trading in, or of raising the
price of, the Offered Securities.
(i) For the period from the date of the initial offering of
the Offered Securities by the Purchaser through the Closing Date, the Company
will not offer, sell, contract to sell, pledge or otherwise dispose of, directly
or indirectly, any other United States dollar-denominated debt securities issued
or guaranteed by the Company and having a maturity of more than one year from
the date of issue, or publicly disclose the intention to make any such offer,
sale, pledge or disposition, without the prior written consent of the Purchaser.
The Company will not at any time offer, sell, contract to sell, pledge or
otherwise dispose of, directly or indirectly, any securities under circumstances
where such offer, sale, pledge, contract or disposition would cause the
exemption afforded by Section 4(2) of the Securities Act or the safe harbor of
Regulation S thereunder to cease to be applicable to the offer and sale of the
Offered Securities.
(j) The Company will use its best efforts to have the Offered
Securities designated as eligible for trading on PORTAL; the Company will
cooperate with the Purchaser and use its best efforts to permit the Offered
Securities to be eligible for clearance and settlement through the facilities of
DTC.
6. Conditions of the Obligations of the Purchaser. The
obligations of the Purchaser to purchase and pay for the Offered Securities will
be subject to the accuracy of the representations
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and warranties on the part of the Company herein, to the accuracy of the
statements of officers of the Company made pursuant to the provisions hereof, to
the performance by the Company of its obligations hereunder and to the following
additional conditions precedent:
(a) The Company shall have furnished to you on the Closing
Date a letter, in form and substance satisfactory to you, of Deloitte & Touche
LLP, addressed to the Purchaser and dated the Closing Date, confirming that they
are independent public accountants within the meaning of the Act and are in
compliance with the applicable requirements relating to the qualification of
accountants under Rule 2-01 of Regulation S-X of the Commission, and containing
statements and information of the type ordinarily included in accountants
"comfort letters" to underwriters with respect to financial statements and
certain financial information contained in or incorporated by reference in the
Offering Document.
(b) The obligations of the Purchaser hereunder may be
terminated by you, in your absolute discretion, by notice given to and received
by the Company prior to delivery of and payment for the Offered Securities, if
prior to that time (i) any downgrading in the rating of the debt securities of
the Company by any "nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the Act), or any public announcement
that any such organization has under surveillance or review its rating of any
debt securities of the Company (other than an announcement with positive
implications of a possible upgrading, and no implication of a possible
down-grading, of such rating), (ii) trading in securities generally on the New
York Stock Exchange is suspended, or minimum prices are established on that
Exchange, (iii) a banking moratorium is declared by either Federal or New York
State authorities, or (iv) there shall have occurred any outbreak or escalation
of major hostilities in which the Unites States is involved, any declaration of
war by Congress or any other substantial national or international calamity or
emergency makes it impractical or inadvisable to proceed with the completion of
the sale of, and payment for, the Offered Securities.
(c) The Purchaser shall not have determined and disclosed to
the Company that the Offering Document contains an untrue statement of a fact
which, in the opinion of Simpson Thacher & Bartlett, counsel for the Purchaser,
is material or omits to state a fact which, in the opinion of such counsel, is
material and is required to be stated therein or is necessary to make the
statements therein not misleading.
(d) All corporate proceedings and other legal matters incident
to the authorization and validity of this Agreement, the Indenture and the
Registration Rights Agreement and the authorization, form and validity of the
Offered Securities and the form of the and the Offering Document, other than
financial statements and other financial data, and all other legal matters
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relating to this Agreement and the transactions contemplated hereby shall be
satisfactory in all respects to Simpson Thacher & Bartlett, counsel for the
Purchaser, and the Company shall have furnished to such counsel all documents
and information that they may reasonably request to enable them to pass upon
such matters.
(e) Leavy Rosensweig & Hyman, as counsel to the Company, shall
have furnished to you their opinion addressed to the Purchaser and dated the
Closing Date to the effect that:
(i) The Company and each of its subsidiaries have been duly
incorporated and are validly existing and in good standing under the
laws of their respective jurisdictions of incorporation, are duly
qualified to do business and in good standing as foreign corporations
in all jurisdictions in which their respective ownership of property or
the conduct of their respective businesses requires such qualification
(except where the failure to so qualify would not have a material
adverse effect upon the Company and its subsidiaries taken as whole),
and have all corporate power and authority necessary to own their
respective properties and conduct the businesses in which they are
engaged as described in the Offering Document. Except as disclosed in
the Offering Document, all outstanding shares of capital stock of the
subsidiaries of the Company are owned by the Company directly, or
indirectly through wholly-owned subsidiaries, free and clear of any
lien, pledge and encumbrance or any claim of any third party;
(ii) Each of this Agreement, the Indenture and the
Registration Rights Agreement has been duly authorized, executed and
delivered by the Company and (assuming due authorization, execution and
delivery by the Purchaser or the Trustee, as applicable) constitutes a
valid and legally binding agreement of the Company enforceable against
the Company in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors'
rights and to general equity principles and except to the extent that
the indemnification provisions thereof may be unenforceable;
(iii) The Offered Securities are in the form contemplated in
the Indenture and have been validly authorized and duly executed by
authorized officers of the Company, and when duly authenticated and
delivered by the Trustee in accordance with the provisions of the
Indenture will be validly issued and legally binding obligations of the
Company, entitled to the benefits of the Indenture;
(iv) The Offered Securities, the Registration Rights Agreement
and the Indenture conform as to legal matters to the statements
concerning them in the Offering Document;
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(v) Such counsel has no reason to believe that the Offering
Document, at the time of issuance, or any supplement on the Closing
Date, contains any untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading;
(vi) Such counsel does not know of any litigation or any
governmental proceeding pending or threatened against the Company or
any of its subsidiaries which would affect the subject matter of this
Agreement or is required to be disclosed in the Offering Document which
is not disclosed and correctly summarized therein;
(vii) To the best of such counsel's knowledge, neither the
Company nor any of its subsidiaries is in violation of its corporate
charter or by-laws, or in default under any material agreement,
indenture or instrument;
(viii) The execution, delivery and performance of this
Agreement, the Indenture and the Registration Rights Agreement by the
Company and compliance by the Company with the provisions of this
Agreement, the Indenture, the Registration Rights Agreement and the
Offered Securities, will not conflict with, or result in the creation
or imposition of any lien, charge or encumbrance upon any of the assets
of the Company or any of its subsidiaries pursuant to the terms of, or
constitute a default under, any agreement, indenture or instrument
known to such counsel, or result in a violation of the corporate
charter or by-laws of the Company or any of its subsidiaries or any
order, rule or regulation of any court or governmental agency having
jurisdiction over the Company, any of its subsidiaries or their
property; and no consent, authorization or order of, or filing or
registration with, any court or governmental agency is required for the
execution, delivery and performance of this Agreement by the Company,
except such as may be required under state securities laws; and
(ix) Except as described in the Offering Document, to the best
of such counsel's knowledge, the Company and its subsidiaries have such
franchises, licenses and authorizations as are necessary to own their
cable television and wireless telephone properties and to conduct their
cable television and wireless telephone business in the manner
described in the Offering Document and without which there would be a
materially adverse effect on the business or financial condition of the
Company and its subsidiaries taken as a whole.
In giving such opinion, Leavy Rosensweig & Hyman may rely on the opinion of
Connell, Foley & Geiser LLP as to matters of New Jersey law, provided that Leavy
Rosensweig & Hyman furnish a copy thereof
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to you and state that such opinion of such local counsel is satisfactory in
scope and form and that the Purchaser and counsel for the Purchaser are entitled
to rely thereon.
(f) Whitman Breed Abbott & Morgan LLP, as special securities
counsel to the Company, shall have furnished to you their opinion addressed to
the Purchaser and dated the Closing Date to the effect that:
(i) The Indenture has been duly executed and delivered by the
Company;
(ii) It is not necessary in connection with (i) the offer,
sale and delivery of the Offered Securities by the Company to the
Purchaser pursuant to this Agreement or (ii) the initial resale of the
Offered Securities by the Purchaser in the manner contemplated by this
Agreement, the Offering Document and the Indenture, to register the
Offered Securities under the Securities Act or to qualify the Indenture
under the Trust Indenture Act, it being understood that no opinion is
expressed as to any subsequent resale of any Offered Securities;
(iii) Such counsel has no reason to believe that the Offering
Document, at the time of issuance, or any supplement on the Closing
Date, contains any untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading;
(iv) The statements in the Offering Document under the heading
"Certain Federal Income Tax Considerations", to the extent that they
constitute summaries of matters of law or regulation or legal
conclusions, have been reviewed by such counsel and fairly summarize
the matters described therein in all material respects; and
(v) The statements made in the Offering Document under the
caption "Description of the Notes", insofar as they constitute a
summary of the provisions of documents or agreements specifically
referred to therein, constitute accurate summaries of the terms of such
documents in all material respects.
In giving such opinion, Whitman Breed Abbott & Morgan LLP may rely on the
opinion of Connell, Foley & Geiser as to matters of New Jersey law, provided
that Whitman Breed Abbott & Morgan LLP furnish a copy thereof to you and state
that such opinion of local counsel is satisfactory in scope and form and that
the Purchaser and counsel for the Purchaser are entitled to rely thereon.
(g) Cole, Raywid & Braverman, L.L.P., as special counsel to
the Company, shall have furnished to you their opinion addressed
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to the Purchaser and dated the Closing Date to the effect that with respect to
matters arising under the Communication Act of 1934, as amended, and the rules
and regulations of the Federal Communications Commission (the "FCC"):
(i) No approval of the FCC is required in connection with the
issuance and sale of the Offered Securities;
(ii) The Company and its subsidiaries have such franchises,
licenses and authorizations as are necessary under the laws of the
United States relating to the cable television industry to own their
cable television properties and to conduct their cable television
business in the manner described in the Offering Document and such
licenses and authorizations contain no materially burdensome
restrictions not adequately described in the Offering Document;
(iii) The execution, delivery and performance of this
Agreement by the Company and compliance by the Company with the
provisions of the Registration Rights Agreement, the Indenture and the
Offered Securities does not and will not violate any statute,
regulation or other law of the United States relating to the cable
television industry or any order, judgment or decree of any court or
governmental body of the United States relating to the cable television
industry;
(iv) Such counsel does not know of any proceeding before the
FCC against or involving the cable television properties, systems,
licenses or authorizations of the Company or its subsidiaries and the
related licenses and authorizations thereof or of any law or regulation
relevant to such properties, licenses or authorizations required to be
described in the Offering Document which is not described as required;
(v) The statements made in the Company's most recent Annual
Report on Form 10-K filed with the Commission under the caption
"Regulation and Legislation - Cable Television", insofar as they
purport to summarize Federal legislation and regulations of the FCC and
certain court decisions specifically referred to therein, are accurate
summaries thereof and fairly present the information called for with
respect thereto; and
(vi) Such counsel has no reason to believe that the Offering
Document, at the time of issuance, or any supplement on the Closing
Date, contains any untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading.
(h) The Purchaser shall have received from Simpson Thacher &
Bartlett, counsel for the Purchaser, such opinion or
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opinions, dated the Closing Date, with respect to the incorporation of the
Company, the validity of the Offered Securities, the Offering Document, the
exemption from registration for the offer and sale of the Offered Securities by
the Company to the Purchaser and the resales by the Purchaser as contemplated
hereby and other related matters as the Purchaser may require, and the Company
shall have furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters.
(i) The Purchaser shall have received a certificate, dated the
Closing Date, of the President or any Vice President and a principal financial
or accounting officer of the Company in which such officers, to the best of
their knowledge after reasonable investigation, shall state that the
representations and warranties of the Company in this Agreement are true and
correct, that the Company has complied in all material respects with all
agreements and satisfied in all material respects all conditions on its part to
be performed or satisfied in all material respects hereunder at or prior to the
Closing Date, and that, subsequent to the respective dates of the most recent
financial statements in the Offering Document, there has been no material
adverse change, nor any development or event involving a prospective material
adverse change, in the condition (financial or other), business, properties or
results of operations of the Company and its subsidiaries taken as a whole
except as set forth in or contemplated by the Offering Document or Additional
Issuer Information or as described in such certificate.
(j) The Offered Securities shall have been admitted to trading
on the PORTAL.
(k) The Purchaser shall have received a counterpart of the
Registration Rights Agreement which shall have been executed and delivered by a
duly authorized officer of the Company.
(l) The Indenture shall have been duly executed and delivered
by the Company and the Trustee, and the Offered Securities shall have been duly
executed and delivered by the Company and duly authenticated by the Trustee.
(m) The Company shall have delivered (at least two business
days prior to the Closing Date) to the Purchaser, a final offering circular in
the form approved by the Purchaser and in such quantities requested by the
Purchaser.
The Company will furnish the Purchaser with such conformed
copies of such opinions, certificates, letters and documents as the Purchaser
reasonably requests. The Purchaser may in its sole discretion waive compliance
with any conditions to the obligations of the Company hereunder.
7. Indemnification and Contribution. (a) The Company shall
indemnify and hold harmless the Purchaser and each person, if
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any, who controls the Purchaser within the meaning of the Act from and against
any loss, claim, damage or liability, joint or several, and any action in
respect thereof, to which the Purchaser or controlling person may become
subject, under the Act or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue statement or
alleged untrue statement of a material fact contained in the Offering Document,
or any amendment or supplement thereto, or any related preliminary offering
circular or the Additional Issuer Information, or arises out of, or is based
upon, the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
and shall reimburse the Purchaser and each such controlling person for any legal
and other expenses reasonably incurred by the Purchaser or controlling person in
investigating or defending or preparing to defend against any such loss, claim,
damage, liability or action; provided that the Company shall not be liable in
any such case to the extent that any such loss, claim, damage, liability or
action arises out of, or is based upon, any untrue statement or alleged untrue
statement or omission or alleged omission made in such documents in reliance
upon and in conformity with written information furnished to the Company by or
on behalf of the Purchaser specifically for inclusion therein; and, provided
further, that with respect to any untrue statement or alleged untrue statement
in or omission or alleged omission from any preliminary offering circular, the
indemnity agreement contained in this subsection (a) shall not inure to the
benefit of the Purchaser on account of any such losses, claims, damages or
liabilities or actions arising from the sale of the Offered Securities, to the
extent that such sale was an initial resale by the Purchaser and any such loss,
claim, damage or liability of the Purchaser results from the fact that there was
not sent or given to the person that purchased the Offered Securities, at or
prior to the written confirmation of the sale of such Offered Securities to such
person, a copy of the Offering Document (exclusive of any material included
therein but not attached thereto) if the Company had previously furnished copies
thereof to the Purchaser. The foregoing indemnity agreement is in addition to
any liability which the Company may otherwise have to the Purchaser or any
controlling person of the Purchaser.
(b) The Purchaser shall indemnify and hold harmless the
Company, each of its directors, officers and any person who controls the Company
within the meaning of the Act from and against any loss, claim, damage or
liability, joint or several, and any action in respect thereof, to which the
Company or any such director, officer or controlling person may become subject,
under the Act or otherwise, insofar as such loss, claim, damage, liability or
action arises out of, or is based upon, any untrue statement or alleged untrue
statement of a material fact contained in the Offering Document, or any
amendment or supplement thereto, or any related preliminary offering circular,
or arises out of, or is based upon, the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
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the statements therein not misleading, but in each case only to the extent that
the untrue statement or alleged untrue statement or omission or alleged omission
was made in reliance upon and in conformity with written information furnished
to the Company by or on behalf of the Purchaser specifically for inclusion
therein, and shall reimburse the Company for any legal and other expenses
reasonably incurred by the Company or any such director, officer or controlling
person in investigating or defending or preparing to defend against any such
loss, claim, damage, liability or action. The foregoing indemnity agreement is
in addition to any liability which the Purchaser may otherwise have to the
Company or any of its directors, officers or controlling persons.
(c) Promptly after receipt by an indemnified party under this
Section of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section, notify the indemnifying party in writing
of the claim or the commencement of that action, provided that the failure to
notify the indemnifying party shall not relieve it from any liability which it
may have to an indemnified party otherwise than under this Section. If any such
claim or action shall be brought against an indemnified party, and it shall
notify the indemnifying party thereof, the indemnifying party shall be entitled
to participate therein, and, to the extent that it wishes, jointly with any
other similarly notified indemnifying party, to assume the defense thereof with
counsel satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided that the
indemnified party shall have the right to employ counsel to represent such
indemnified party who may be subject to liability arising out of any claim in
respect of which indemnity may be sought by the indemnified party against the
indemnifying party under this Section if, in the reasonable judgment of the
indemnified party, it is advisable for such indemnified party to be represented
by separate counsel, but the fees and expenses of such counsel shall be at the
expense of such indemnified party unless (i) the employment of counsel by such
indemnified party has been authorized by the indemnifying party, (ii) the
indemnified party shall have reasonably concluded that there may be a conflict
of interest between the indemnifying party and the indemnified party in the
conduct of the defense of such action (in which case the indemnifying party
shall not have the right to direct the defense of such action on behalf of the
indemnified party) or (iii) the indemnifying party shall not in fact have
employed counsel to assume the defense of such action, in each of which cases
the fees and expenses of such separate counsel shall be paid by the indemnifying
party.
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<PAGE>
<PAGE>
(d) If the indemnification provided for in this Section shall
for any reason be unavailable to an indemnified party under Section 7(a) or 7(b)
in respect of any loss, claim, damage or liability, or any action in respect
thereof, referred to therein, then each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the amount paid or payable by
such indemnified party as a result of such loss, claim, damage or liability, or
action in respect thereof, (i) in such proportion as shall be appropriate to
reflect the relative benefits received by the Company on the one hand and the
Purchaser on the other from the offering of the Offered Securities or (ii) if
the allocation provided by clause (i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company on
the one hand and the Purchaser on the other with respect to the statements or
omissions which resulted in such loss, claim, damage or liability, or action in
respect thereof, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Purchaser on
the other with respect to such offering shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Offered Securities
(before deducting expenses) received by the Company bear to the total discounts
and commissions received by the Purchaser with respect to the offering of the
Offered Securities, in each case as set forth in the table on the cover page of
the Final Offering Memorandum. The relative fault shall be determined by
reference to whether the untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the Company or the Purchaser, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company and the Purchaser agree that it would
not be just and equitable if contributions pursuant to this Section were to be
determined by pro rata allocation or by any other method of allocation which
does not take into account the equitable considerations referred to herein. The
amount paid or payable by an indemnified party as a result of the loss, claim,
damage or liability, or action in respect thereof, referred to above in this
Section shall be deemed to include, for purposes of this Section, any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section, the Purchaser shall not be required to contribute
any amount in excess of the amount by which the total price at which the Offered
Securities purchased by it were resold exceeds that amount of any damages which
the Purchaser has otherwise paid or become liable to pay by reason of any untrue
or alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
-18-
<PAGE>
<PAGE>
8. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Company or its officers and of the Purchaser set forth in or
made pursuant to this Agreement will remain in full force and effect, regardless
of any investigation, or statement as to the results thereof, made by or on
behalf of the Purchaser, the Company or any of their respective representatives,
officers or directors or any controlling person, and will survive delivery of
and payment for the Offered Securities. If this Agreement is terminated pursuant
to Section 9 or if for any reason the purchase of the Offered Securities by the
Purchaser is not consummated, the Company shall remain responsible for the
expenses to be paid or reimbursed by it pursuant to Section 5 and the respective
obligations of the Company and the Purchaser pursuant to Section 7 shall remain
in effect. If the purchase of the Offered Securities by the Purchaser is not
consummated for any reason other than solely because of the termination of this
Agreement pursuant to Section 9 or the occurrence of any event specified in
clause (C), (D) or (E) of Section 6(b)(ii), the Company will reimburse the
Purchaser for all out-of-pocket expenses (including fees and disbursements of
counsel) reasonably incurred by them in connection with the offering of the
Offered Securities.
9. Termination. (a) This Agreement shall become effective on
the day on which this Agreement is executed.
(b) The obligations of the Purchaser hereunder may be
terminated by you, in your absolute discretion, by notice given to and received
by the Company prior to delivery of and payment for the Offered Securities, if
prior to that time (i) any downgrading in the rating of the debt securities of
the Company by any "nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the Act), or any public announcement
that any such organization has under surveillance or review its rating of any
debt securities of the Company (other than an announcement with positive
implications of a possible upgrading, and no implication of a possible
down-grading, of such rating), (ii) trading in securities generally on the New
York Stock Exchange is suspended, or minimum prices are established on that
Exchange, (iii) a banking moratorium is declared by either Federal or New York
State authorities, or (iv) there shall have occurred any outbreak or escalation
of major hostilities in which the Unites States is involved, any declaration of
war by Congress or any other substantial national or international calamity or
emergency makes it impractical or inadvisable to proceed with the completion of
the sale of, and payment for, the Offered Securities.
(c) The Company agrees that the Purchaser may terminate its
obligations under this Agreement, in its absolute discretion, by notice given to
and received by the Company on or prior to the date for delivery and payment of
the Offered Securities, if prior to that time there shall have occurred any
material adverse change in the existing financial, political or economic
conditions in the
-19-
<PAGE>
<PAGE>
United States or elsewhere that makes it impractical or inadvisable to proceed
with the completion of the sale of, and payment for, the Offered Securities.
10. Notices. All communications hereunder will be in writing
and, if sent to the Purchaser will be mailed, delivered or telegraphed and
confirmed to the Purchaser or, if sent to the Company, will be mailed, delivered
or telegraphed and confirmed to it at 50 Locust Avenue, New Canaan, Connecticut
06840, Attention: Senior Vice President & Treasurer.
11. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and the
controlling persons referred to in Section 7, and no other person will have any
right or obligation hereunder, except that holders of Offered Securities shall
be entitled to enforce the agreements for their benefit contained in the second
and third sentences of Section 4(b) hereof against the Company as if such
holders were parties thereto.
12. Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
13. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD
TO PRINCIPLES OF CONFLICTS OF LAWS.
The Company hereby submits to the non-exclusive jurisdiction
of the Federal and state courts in the Borough of Manhattan in The City of New
York in any suit or proceeding arising out of or relating to this Agreement or
the transactions contemplated hereby.
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<PAGE>
<PAGE>
If the foregoing is in accordance with the Purchaser's understanding of
our agreement, kindly sign and return to us one of the counterparts hereof,
whereupon it will become a binding agreement between the Company and the
Purchaser in accordance with its terms.
Very truly yours,
CENTURY COMMUNICATIONS CORP.
By /s/ Scott N. Schneider
-------------------------
CFO
The foregoing Purchase Agreement
is hereby confirmed and accepted
as of the date first above written.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By /s/ Eric Federman
--------------------------------------
Eric Federman
Authorized Signatory
-21-
<PAGE>
<PAGE>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
CENTURY COMMUNICATIONS CORP., as Issuer
and
FIRST TRUST OF CALIFORNIA, NATIONAL ASSOCIATION, as Trustee
-------------
INDENTURE
Dated as of January 15, 1998
-------------
$605,000,000
SENIOR DISCOUNT NOTES DUE JANUARY 15, 2008
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
<PAGE>
CENTURY COMMUNICATIONS CORP.
Reconciliation and Tie between Indenture,
dated as of January 15, 1998
and
Trust Indenture Act of 1939, as amended
Trust Indenture Indenture
Act Section Section
- --------------- ---------
310(a)(1) 7.09
(a)(2) 7.09
(a)(3) Not applicable
(a)(4) Not applicable
(b) 7.08, 7.10
311(a) 7.13(a)
(b) 7.13(b)
312(a) 8.01, 8.02(a)
(b) 8.02(b)
(c) 8.02(c)
313(a) 8.03(a)
(b)(1) Not applicable
(b)(2) 8.03(b)
(c) 8.03(c)
(d) 8.03(c)
314(a) 8.04
(a)(4) 11.08
(b) Not applicable
(c)(1) 1.02
(c)(2) 1.02
(c)(3) Not applicable
(d) Not applicable
(e) 1.02
315(a) 7.01(a)
(b) 7.02
(c) 7.01(b)
(d)(1) 7.01(a)
(d)(2) 7.01(a)
(d)(3) 7.01(c)
(e) 6.14
316(a)(1)(A) 6.12
(a)(1)(B) 6.13
(a)(2) Not applicable
(b) 6.08
317(a)(1) 6.03
(a)(2) 6.04
(b) 11.03
318(a) 1.07
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be
part of the Indenture.
<PAGE>
<PAGE>
TABLE OF CONTENTS
PAGE
PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
RECITALS OF THE COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . . . .
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.01. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . 1
Accreted Value. . . . . . . . . . . . . . . . . . . . . . . . 2
Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Advance . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Agent Member. . . . . . . . . . . . . . . . . . . . . . . . . 2
Applicable Procedures . . . . . . . . . . . . . . . . . . . . 3
Asset Sale. . . . . . . . . . . . . . . . . . . . . . . . . . 3
Authorized Newspaper. . . . . . . . . . . . . . . . . . . . . 3
Base Date . . . . . . . . . . . . . . . . . . . . . . . . . . 3
B Minus . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
B Plus. . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Board of Directors. . . . . . . . . . . . . . . . . . . . . . 3
Board Resolution. . . . . . . . . . . . . . . . . . . . . . . 3
Business Day. . . . . . . . . . . . . . . . . . . . . . . . . 3
Capital Stock . . . . . . . . . . . . . . . . . . . . . . . . 4
Cash Flow Available for Interest Expense. . . . . . . . . . . 4
Cedel . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Commission. . . . . . . . . . . . . . . . . . . . . . . . . . 4
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Company Request . . . . . . . . . . . . . . . . . . . . . . . 4
Company Order . . . . . . . . . . . . . . . . . . . . . . . . 4
Consolidated Cash Flow Available for Interest Expense . . . . 5
Consolidated Interest Expense . . . . . . . . . . . . . . . . 5
Consolidated Net Income . . . . . . . . . . . . . . . . . . . 5
Corporate Trust Office. . . . . . . . . . . . . . . . . . . . 5
Corporation . . . . . . . . . . . . . . . . . . . . . . . . . 6
Currency Agreement. . . . . . . . . . . . . . . . . . . . . . 6
Debt. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Depositary. . . . . . . . . . . . . . . . . . . . . . . . . . 6
Designated Downgrading. . . . . . . . . . . . . . . . . . . . 6
Discharged. . . . . . . . . . . . . . . . . . . . . . . . . . 6
DTC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Euroclear . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Exchange Act. . . . . . . . . . . . . . . . . . . . . . . . . 7
Exchange Notes. . . . . . . . . . . . . . . . . . . . . . . . 7
Exchange Offer. . . . . . . . . . . . . . . . . . . . . . . . 7
Exchange Offer Registration Statement. . . . . . . . . . . . 7
Event of Default. . . . . . . . . . . . . . . . . . . . . . . 7
GAAP. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Global Note . . . . . . . . . . . . . . . . . . . . . . . . . 7
Holder. . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Incurrence. . . . . . . . . . . . . . . . . . . . . . . . . . 7
i
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<PAGE>
PAGE
Indebtedness. . . . . . . . . . . . . . . . . . . . . . . . . 7
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Initial Notes . . . . . . . . . . . . . . . . . . . . . . . . 8
Initial Purchaser . . . . . . . . . . . . . . . . . . . . . . 8
Initial Regulation S Notes. . . . . . . . . . . . . . . . . . 8
Interest Expense. . . . . . . . . . . . . . . . . . . . . . . 8
Interest Expense Ratio. . . . . . . . . . . . . . . . . . . . 8
Interest Swap Obligations . . . . . . . . . . . . . . . . . . 9
Issue Price . . . . . . . . . . . . . . . . . . . . . . . . . 9
Lien. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Maturity. . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Net Income. . . . . . . . . . . . . . . . . . . . . . . . . . 9
New York Corporate Trust Office . . . . . . . . . . . . . . . 10
Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
OID . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Officers' Certificate . . . . . . . . . . . . . . . . . . . . 10
Opinion of Counsel. . . . . . . . . . . . . . . . . . . . . . 10
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . 10
Paying Agent. . . . . . . . . . . . . . . . . . . . . . . . . 11
Permitted Investment. . . . . . . . . . . . . . . . . . . . . 11
Person. . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Place of Payment. . . . . . . . . . . . . . . . . . . . . . . 12
Predecessor Note. . . . . . . . . . . . . . . . . . . . . . . 12
Physical Note . . . . . . . . . . . . . . . . . . . . . . . . 12
Principal . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Principal amount. . . . . . . . . . . . . . . . . . . . . . . 12
Proceeds. . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Pro Forma Operating Cash Flow . . . . . . . . . . . . . . . . 12
Purchase Agreement. . . . . . . . . . . . . . . . . . . . . . 13
Rating Agency . . . . . . . . . . . . . . . . . . . . . . . . 13
Redeemable Stock. . . . . . . . . . . . . . . . . . . . . . . 13
Registered Notes. . . . . . . . . . . . . . . . . . . . . . . 13
Registration Rights Agreement . . . . . . . . . . . . . . . . 13
Registration Statement. . . . . . . . . . . . . . . . . . . . 13
Regulation S. . . . . . . . . . . . . . . . . . . . . . . . . 13
Regulation S Certificate. . . . . . . . . . . . . . . . . . . 13
Regulation S Legend . . . . . . . . . . . . . . . . . . . . . 13
Regulation S Notes. . . . . . . . . . . . . . . . . . . . . . 14
Repurchase Date . . . . . . . . . . . . . . . . . . . . . . . 14
Repurchase Notice . . . . . . . . . . . . . . . . . . . . . . 14
Reporting Date. . . . . . . . . . . . . . . . . . . . . . . . 14
Responsible Officer . . . . . . . . . . . . . . . . . . . . . 14
Restricted Notes. . . . . . . . . . . . . . . . . . . . . . . 14
Restricted Notes Certificate. . . . . . . . . . . . . . . . . 14
Restricted Notes Legend . . . . . . . . . . . . . . . . . . . 14
Restricted Payments . . . . . . . . . . . . . . . . . . . . . 14
Restricted Period . . . . . . . . . . . . . . . . . . . . . . 14
Restricted Subsidiary . . . . . . . . . . . . . . . . . . . . 14
Rule 144A . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Rule 144A Notes . . . . . . . . . . . . . . . . . . . . . . . 15
Securities Act. . . . . . . . . . . . . . . . . . . . . . . . 15
Securities Act Legend . . . . . . . . . . . . . . . . . . . . 15
ii
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<PAGE>
PAGE
Shelf Registration Statement. . . . . . . . . . . . . . . . . 15
Note Register . . . . . . . . . . . . . . . . . . . . . . . . 15
Stated Maturity . . . . . . . . . . . . . . . . . . . . . . . 15
Subsidiary. . . . . . . . . . . . . . . . . . . . . . . . . . 15
Transfer Notice . . . . . . . . . . . . . . . . . . . . . . . 15
Transaction Date. . . . . . . . . . . . . . . . . . . . . . . 15
Triggering Event. . . . . . . . . . . . . . . . . . . . . . . 15
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . 16
U.S. Government Obligations . . . . . . . . . . . . . . . . . 16
Unrestricted Notes Certificate. . . . . . . . . . . . . . . . 16
Unrestricted Subsidiary . . . . . . . . . . . . . . . . . . . 16
Vice President. . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 1.02. Compliance Certificates and Opinions. . . . . . . . . . . . . 16
SECTION 1.03. Form of Documents Delivered to Trustee. . . . . . . . . . . . 17
SECTION 1.04. Acts of Holders . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 1.05. Notices, etc. to Trustee and Company. . . . . . . . . . . . . 19
SECTION 1.06. Notice to Holders; Waiver . . . . . . . . . . . . . . . . . . 19
SECTION 1.07. Conflict with Trust Indenture Act . . . . . . . . . . . . . . 20
SECTION 1.08. Effect of Headings and Table of Contents. . . . . . . . . . . 20
SECTION 1.09. Successors and Assigns. . . . . . . . . . . . . . . . . . . . 20
SECTION 1.10. Separability Clause . . . . . . . . . . . . . . . . . . . . . 20
SECTION 1.11. Benefits of Indenture . . . . . . . . . . . . . . . . . . . . 20
SECTION 1.12. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 1.13. Legal Holidays. . . . . . . . . . . . . . . . . . . . . . . . 21
ARTICLE TWO
NOTE FORMS
SECTION 2.01. Forms Generally . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 2.02. Form of Reverse of Notes. . . . . . . . . . . . . . . . . . . 28
SECTION 2.03. Form of Trustee's Certificate . . . . . . . . . . . . . . . . 34
SECTION 2.04. Book-Entry Provisions for Notes . . . . . . . . . . . . . . . 34
ARTICLE THREE
THE NOTES
Section 3.01. Title and Terms . . . . . . . . . . . . . . . . . . . . . . . 36
Section 3.02. Denominations . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 3.03. Execution, Authentication, Delivery and Dating. . . . . . . . 37
Section 3.04. Temporary Notes . . . . . . . . . . . . . . . . . . . . . . . 39
Section 3.05. Global Notes. . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 3.06. Registration, Registration of Transfer and
Exchange Generally; Certain Transfers and
Exchanges; Securities Act Legends . . . . . . . . . . . . . . 41
Section 3.07. Mutilated, Destroyed, Lost and Stolen Notes . . . . . . . . . 46
Section 3.08. CUSIP Numbers . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 3.09. Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . 47
Section 3.10. Cancellation. . . . . . . . . . . . . . . . . . . . . . . . . 47
iii
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<PAGE>
PAGE
ARTICLE FOUR
MISCELLANEOUS
SECTION 4.01. Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . 48
ARTICLE FIVE
SATISFACTION AND DISCHARGE
SECTION 5.01. Satisfaction and Discharge of Indenture. . . . . . . . . . . . 48
SECTION 5.02. Defeasance Upon Deposit of Moneys or U.S.
Government Obligations. . . . . . . . . . . . . . . . . . . . 49
SECTION 5.03. Application of Trust Money. . . . . . . . . . . . . . . . . . 50
ARTICLE SIX
REMEDIES OF THE TRUSTEE AND
HOLDERS ON EVENT OF DEFAULT
SECTION 6.01. Events of Default . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 6.02. Acceleration of Maturity; Rescission and Annulment. . . . . . 52
SECTION 6.03. Collection of Indebtedness and Suits
for Enforcement by Trustee. . . . . . . . . . . . . . . . . . 53
SECTION 6.04. Trustee May File Proofs of Claim. . . . . . . . . . . . . . . 53
SECTION 6.05. Trustee May Enforce Claims Without
Possession of Notes . . . . . . . . . . . . . . . . . . . . . 54
SECTION 6.06. Application of Money Collected. . . . . . . . . . . . . . . . 54
SECTION 6.07. Limitation on Suits . . . . . . . . . . . . . . . . . . . . . 55
SECTION 6.08. Unconditional Right of Holders to Receive Principal.. . . . . 56
SECTION 6.09. Restoration of Rights and Remedies. . . . . . . . . . . . . . 56
SECTION 6.10. Rights and Remedies Cumulative. . . . . . . . . . . . . . . . 56
SECTION 6.11. Delay or Omission Not Waiver. . . . . . . . . . . . . . . . . 56
SECTION 6.12. Control by Holders. . . . . . . . . . . . . . . . . . . . . . 57
SECTION 6.13. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . 57
SECTION 6.14. Undertaking for Costs . . . . . . . . . . . . . . . . . . . . 57
SECTION 6.15. Waiver of Stay or Extension Laws. . . . . . . . . . . . . . . 58
ARTICLE SEVEN
THE TRUSTEE
SECTION 7.01. Certain Duties and Responsibilities . . . . . . . . . . . . . 58
SECTION 7.02. Notice of Defaults. . . . . . . . . . . . . . . . . . . . . . 59
SECTION 7.03. Certain Rights of Trustee . . . . . . . . . . . . . . . . . . 60
SECTION 7.04. Not Responsible for Recitals or Issuance of Notes. . . .. . . 61
SECTION 7.05. May Hold Notes. . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 7.06. Money Held in Trust . . . . . . . . . . . . . . . . . . . . . 61
SECTION 7.07. Compensation and Reimbursement. . . . . . . . . . . . . . . . 62
SECTION 7.08. Disqualification; Conflicting Interests . . . . . . . . . . . 62
SECTION 7.09. Corporate Trustee Required; Eligibility . . . . . . . . . . . 62
SECTION 7.10. Resignation and Removal; Appointment of Successor. . . . . . 63
iv
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PAGE
SECTION 7.11. Acceptance of Appointment by Successor. . . . . . . . . . . . 64
SECTION 7.12. Merger, Conversion, Consolidation
or Succession to Business . . . . . . . . . . . . . . . . . . 65
SECTION 7.13. Preferential Collection of Claims
Against Company . . . . . . . . . . . . . . . . . . . . . . . 65
ARTICLE EIGHT
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 8.01. Company to Furnish Trustee Names
and Addresses of Holders. . . . . . . . . . . . . . . . . . . 69
SECTION 8.02. Preservation of Information;
Communications to Holders . . . . . . . . . . . . . . . . . . 70
SECTION 8.03. Reports by Trustee. . . . . . . . . . . . . . . . . . . . . . 71
SECTION 8.04. Reports by Company. . . . . . . . . . . . . . . . . . . . . . 73
ARTICLE NINE
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 9.01. Company May Consolidate, etc.
Only on Certain Terms . . . . . . . . . . . . . . . . . . . . 74
SECTION 9.02. Successor Corporation Substituted . . . . . . . . . . . . . . 75
ARTICLE TEN
SUPPLEMENTAL INDENTURES
SECTION 10.01. Supplemental Indentures without Consent of Holders . . .. . . 75
SECTION 10.02. Supplemental Indentures with Consent of Holders . . . . . . . 76
SECTION 10.03. Execution of Supplemental Indentures. . . . . . . . . . . . . 77
SECTION 10.04. Effect of Supplemental Indentures . . . . . . . . . . . . . . 77
SECTION 10.05. Conformity with Trust Indenture Act . . . . . . . . . . . . . 77
SECTION 10.06. Reference in Notes to
Supplemental Indentures. . . . . . . . . . . . . . . . . . . 77
ARTICLE ELEVEN
COVENANTS
SECTION 11.01. Payment of Principal and Premium. . . . . . . . . . . . . . . 78
SECTION 11.02. Maintenance of Office or Agency . . . . . . . . . . . . . . . 78
SECTION 11.03. Money for Notes Payments to Be Held in Trust . . . . . .. . . 78
SECTION 11.04. Corporate Existence . . . . . . . . . . . . . . . . . . . . . 80
SECTION 11.05. Payment of Taxes and Other Claims . . . . . . . . . . . . . . 80
SECTION 11.06. Maintenance of Properties . . . . . . . . . . . . . . . . . . 80
SECTION 11.07. Waiver of Certain Covenants . . . . . . . . . . . . . . . . . 80
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PAGE
SECTION 11.08. Statement by Officers as to Default . . . . . . . . . . . . . 81
SECTION 11.09. Further Assurances. . . . . . . . . . . . . . . . . . . . . . 81
SECTION 11.10. Restrictions on Mergers, Sales and Consolidations. . . . . . 81
SECTION 11.11. Restrictions on Dividends and Other Payments. . . . . . . . . 81
SECTION 11.12. Limitation on Transactions with Affiliates. . . . . . . . . . 83
SECTION 11.13. Limitation on Indebtedness. . . . . . . . . . . . . . . . . . 83
SECTION 11.14. Investments in Affiliates and
Subsidiaries. . . . . . . . . . . . . . . . . . . . . . . . . 84
ARTICLE TWELVE
RIGHT TO REQUIRE REPURCHASE OF THE NOTES
SECTION 12.01. Right to Require Repurchase of Notes. . . . . . . . . . . . . 84
ARTICLE THIRTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 13.01. Exemption from Individual Liability . . . . . . . . . . . . . 85
ARTICLE FOURTEEN
MEETINGS OF HOLDERS OF Notes
SECTION 14.01. Purposes of Meetings. . . . . . . . . . . . . . . . . . . . . 86
SECTION 14.02. Call of Meetings by Trustee . . . . . . . . . . . . . . . . . 86
SECTION 14.03. Call of Meetings by Company or Holders. . . . . . . . . . . . 87
SECTION 14.04. Qualification for Voting. . . . . . . . . . . . . . . . . . . 87
SECTION 14.05. Quorum; Adjourned Meetings. . . . . . . . . . . . . . . . . . 88
SECTION 14.06. Regulations . . . . . . . . . . . . . . . . . . . . . . . . . 88
SECTION 14.07. Voting Procedure. . . . . . . . . . . . . . . . . . . . . . . 89
SECTION 14.08. Written Consent in Lieu of Meetings . . . . . . . . . . . . . 89
SECTION 14.09. No Delay of Rights by Meeting . . . . . . . . . . . . . . . . 90
TESTIMONIUM. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SIGNATURES AND SEALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
ACKNOWLEDGMENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
ANNEX A Form of Regulation S Notes Certificate . . . . . . . . . . . . . .
ANNEX B Form of Restricted Notes Certificate . . . . . . . . . . . . . . .
ANNEX C Form of Unrestricted Notes Certificate . . . . . . . . . . . . . .
ANNEX D Form of Transfer Notice. . . . . . . . . . . . . . . . . . . . . .
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INDENTURE, dated as of January 15, 1998, from CENTURY
COMMUNICATIONS CORP., a corporation duly organized and existing under the laws
of the State of New Jersey (the "Company"), having its principal office at 50
Locust Avenue, New Canaan, Connecticut 06840, to FIRST TRUST OF CALIFORNIA,
NATIONAL ASSOCIATION, a national banking association duly organized and existing
under the laws of the United States, as Trustee (the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of the issue of
Senior Discount Notes Due January 15, 2008, Series A (the "Series A Notes" or
the "Initial Notes"), and an issue of Senior Discount Notes Due January 15,
2008, Series B (the "Series B Notes" or the "Exchange Notes", and together with
the Initial Notes, the "Notes"), of substantially the same tenor and amount as
hereinafter set forth, and to provide therefor the Company has duly authorized
the execution and delivery of this Indenture and the Notes.
All things necessary to make this Indenture a valid agreement
of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Notes by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Notes as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.01. Definitions.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act or by Commission rule under the Trust Indenture Act,
either directly or by reference therein, have the meanings assigned to
them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP; and
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(4) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision.
Certain terms, used principally in Article Seven, are defined
in that Article.
"Accreted Value" of a Note, as of any date, will be the sum of
(i) the Issue Price of such Note and (ii) the portion of the accrued OID through
the date of determination, such portion to be determined on a semi-annual bond
equivalent basis.
"Act", when used with respect to any Holder, has the meaning
specified in Section 1.04.
"Advance" means any direct or indirect advance, loan,
guarantee, transfer (pursuant to contract or otherwise) or other extension of
credit or capital contribution (in cash or other property) by the Company or any
Subsidiary, as the case may be, to, or any purchase or other acquisition by such
Person of any Capital Stock, equity or other ownership interests, bonds, notes,
debentures or other securities of, any Subsidiary or any other Affiliate of the
Company, as the case may be, but not including: (i) any Advance from the Company
or any Subsidiary to any Affiliate for use by such Affiliate in the ordinary
course of its business on terms that are no less favorable to the Company or
such Subsidiary than those that could have been obtained in a comparable
transaction by the Company or such Subsidiary from a Person who is not an
Affiliate, or (ii) any Advance from the Company or any directly or indirectly
90%-owned Subsidiary to any other directly or indirectly 90%-owned Subsidiary or
the Company. For purposes of subclause (i) of this definition, expenditures in
the ordinary course of business shall mean and include expenditures for working
capital, capital improvements and acquisitions in the communications and media
fields whether by purchase of assets, capital stock or partnership or other
equity interests or by the formation of joint ventures, partnerships or other
entities.
"Affiliate" of any specified Person shall mean any other
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes of this
definition, "control" (including, with correlative meanings, the terms
"controlled by" and "under common control with"), when used with respect to any
Person, shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of such Person,
whether through the ownership of voting securities or by agreement or otherwise.
"Agent Member" means any member of, or participant in,
the Depositary.
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"Applicable Procedures" means, with respect to any transfer or
transaction involving a Global Note or beneficial interest therein, the rules
and procedures of the Depositary for such Global Note, Euroclear and Cedel, in
each case to the extent applicable to such transaction and as in effect from
time to time.
"Asset Sale" means the sale, transfer or other disposition
(other than to the Company or any of its Subsidiaries) in any single transaction
or series of related transactions of (a) any Capital Stock of any Subsidiary,
(b) all or substantially all of the assets of the Company or any Subsidiary or
(c) all or substantially all of the assets of a division, line of business, or
comparable business segment of the Company or any Subsidiary.
"Authorized Newspaper" shall mean a newspaper of general
circulation in the Borough of Manhattan, The City of New York, and customarily
published on each Business Day, currently expected to be The Wall Street Journal
(National Edition). Where successive publications are required to be made in an
Authorized Newspaper, the successive publications may be made in the same or
different newspapers meeting the foregoing requirements and in each case on any
Business Day.
"Base Date", with respect to any Triggering Event, shall mean
the date which is 60 days prior to the occurrence of such Triggering Event.
"B Minus" shall mean, with respect to ratings by Standard &
Poor's Corporation, a rating of B- and, with respect to ratings by Moody's
Investor Service, Inc., a rating of B3, or the equivalent thereof by any
substitute agency, as provided in Section 12.01.
"B Plus" shall mean, with respect to ratings by Standard &
Poor's Corporation, a rating of B+ and, with respect to ratings by Moody's
Investor Service, Inc., a rating of B1, or the equivalent thereof by any
substitute agency, as provided in Section 12.01.
"Board of Directors" means either the board of directors of
the Company or any committee of that board duly authorized to act hereunder.
"Board Resolution" means a copy of a resolution or resolutions
certified by the Secretary or an Assistant Secretary of the Company to have been
duly adopted by the Board of Directors and to be in full force and effect on the
date of such certification and delivered to the Trustee.
"Business Day", when used with respect to any Place of
Payment, means each Monday, Tuesday, Wednesday, Thursday and
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Friday which is not a day on which banking institutions in that Place of Payment
are authorized or obligated by law to close.
"Capitalized Lease Obligation" shall mean, as applied to any
Person, any lease of any Property (whether real, personal or mixed) by that
Person or lessee which, in conformity with GAAP, is required to be accounted for
as a capital lease on the balance sheet of that Person.
"Capital Stock" means, in respect of any Person, any and all
shares, interests, rights to purchase, warrants, options, participations or
other equivalents of or interests in (however designated) corporate stock and
any and all equity, beneficial or ownership interests in, or participations or
other equivalents in, any partnership, association, joint venture or other
business entity.
"Cash Flow Available for Interest Expense" means, for any
Person, for any period, (A) the sum of the amount for such period of (i) Net
Income, (ii) Interest Expense, (iii) provisions for taxes based on income
(excluding taxes related to gains and losses excluded from the definition of Net
Income), (iv) depreciation expense, (v) amortization expense, and (vi) any other
non-cash items reducing the Net Income of such Person for such period, minus (B)
all non-cash items increasing Net Income of such Person, all as determined in
accordance with GAAP; provided that if, during such period, such Person shall
have made any Asset Sale, Cash Flow Available for Interest Expense of such
Person for such period shall be reduced by an amount equal to the Cash Flow
Available for Interest Expense (if positive) directly attributable to the assets
which are the subject of such Asset Sale for the period subsequent to such sale
or increased by an amount equal to the Cash Flow Available for Interest Expense
(if negative) directly attributable thereto for such period.
"Cedel" means Cedel Bank, S.A. (or any successor
securities clearing agency).
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, or, if at any
time after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor corporation shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor corporation.
"Company Request" or "Company Order" means a written request
or order signed in the name of the Company by its Chairman of the Board, its
President or a Vice President, and by
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its Treasurer, an Assistant Treasurer, its Secretary or an
Assistant Secretary, and delivered to the Trustee.
"Consolidated Cash Flow Available for Interest Expense" means,
for any Person, for any period, (A) the sum of the amount for such period of (i)
Consolidated Net Income, (ii) Consolidated Interest Expense, (iii) provisions
for taxes based on income (excluding taxes related to gains and losses excluded
from the definition of Consolidated Net Income or Net Income), (iv) depreciation
expense, (v) amortization expense, and (vi) any other non-cash items reducing
the Consolidated Net Income of such Person for such period, minus (B) all
non-cash items increasing Consolidated Net Income of such Person for such
period; all as determined on a consolidated basis for such Person and its
Subsidiaries in accordance with GAAP; provided that if, during such period, the
Company or any of its Subsidiaries shall have made any Asset Sale, Consolidated
Cash Flow Available for Interest Expense of the Company for such period shall be
reduced by an amount equal to the Consolidated Cash Flow Available for Interest
Expense (if positive) directly attributable to the assets which are the subject
of such Asset Sale for the period subsequent to such sale or increased by an
amount equal to the Consolidated Cash Flow Available for Interest Expense (if
negative) directly attributable thereto for such period.
"Consolidated Interest Expense" of any Person means, with
respect to any period, the aggregate Interest Expense of such Person and its
Subsidiaries, determined on a consolidated basis in accordance with GAAP;
provided, however, that Consolidated Interest Expense of the Company shall only
include the Interest Expense of any Subsidiary of the Company which, at the date
of determination of the Interest Expense Ratio of the Company, has an Interest
Expense Ratio of less than 1.50 to 1.0.
"Consolidated Net Income", with respect to any specified
Person means for any period, the aggregate of the Net Income of such specified
Person and its Subsidiaries for such period, on a consolidated basis, determined
in accordance with GAAP; provided that (i) the Net Income of any other Person
which is not a Subsidiary or is accounted for by such specified Person by the
equity method of accounting shall be included only to the extent of the amount
of dividends or distributions paid to such specified Person or a Subsidiary, and
(ii) the Net Income of any other Person acquired by such specified Person or a
Subsidiary of such Person in a pooling of interests transaction for any period
prior to the date of such acquisition shall be excluded and (iii) the Net Income
(if positive) of any Subsidiary that is subject to restrictions, direct or
indirect, on the payment of dividends or the making of distributions to such
specified Person shall be excluded to the extent of such restrictions.
"Corporate Trust Office" means the principal office of the
Trustee in Los Angeles, California at which at any particular time its corporate
trust business shall be administered provided
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that with respect to registration, transfer, exchange and payment of Notes
Corporate Trust Office means the corporate trust office of First Trust, National
Association in St. Paul, Minnesota, or such other office or agency designated by
the Trustee.
"Corporation" includes corporations, associations,
companies and business trusts.
"Currency Agreement" means any foreign exchange contract,
currency swap agreement or other similar agreement or arrangement designed to
protect against fluctuations in currency values.
"Debt" of any Person means (without duplication) any
indebtedness, contingent or otherwise, in respect of borrowed money (whether or
not the recourse of the lender is to the whole of the assets of such Person or
only to a portion thereof), or evidenced by bonds, notes, debentures or similar
instruments or representing the balance deferred and unpaid of the purchase
price of any property (except any such balance that constitutes a trade payable
or an accrued liability arising in the ordinary course of business that is not
overdue by more than 120 days or that is being contested in good faith), if and
to the extent any of the foregoing indebtedness would appear as a liability upon
a balance sheet of the Company in accordance with GAAP.
"Depositary" means, with respect to the Notes issued in the
form of one or more Global Notes, DTC, its nominees and successors, or another
Person designated as Depositary by the Company, which must be a clearing agency
registered under the Exchange Act.
"Designated Downgrading" means (i) in the event that the
rating of the Notes by both Rating Agencies on any Base Date is equal to or
higher than B Plus, the reduction of such rating by either or both Rating
Agencies on the date of the relevant event or transaction resulting in the Class
A Common Stock of the Company being held of record by less than 300 holders (or,
if the rating on such date does not reflect the effect of such event or
transaction, then on the earliest date on which such rating shall reflect the
effect of such event or transaction) (as applicable, the "Triggering Event
Date") to a rating equal to or lower than a B Minus; and (ii) in the event that
on any Base Date the rating of the Notes by either or both Rating Agencies is
lower than B Plus, the reduction of such rating by either or both Rating
Agencies to a lower rating. In determining whether a rating has been reduced, a
reduction of a gradation (+ and - for S&P and 1, 2 and 3 for Moody's or the
equivalent thereof by any substitute rating agency as provided in Section 12.01)
shall be taken into account.
"Discharged" shall have the meaning assigned to such term in
Section 5.02 hereof.
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"DTC" means The Depository Trust Company, a New York
corporation.
"Euroclear" means the Euroclear Clearance System (or
any successor securities clearing agency).
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, or any successor statute.
"Exchange Notes" or "Series B Notes" shall have the meanings
assigned to such terms in the Recitals.
"Exchange Offer" means the exchange offer by the Company of
Exchange Notes for Series A Notes to be effected pursuant to Section 2.1 of the
Registration Rights Agreement.
"Exchange Offer Registration Statement" has the meaning
set forth in the Registration Rights Agreement.
"Event of Default" has the meaning specified in Section
6.01.
"GAAP" shall mean generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession as in effect on the date of this Indenture.
"Global Note" means a Note that is registered in the Note
Register in the name of a Depositary or a nominee thereof.
"Holder" means a Person in whose name a Note is
registered in the Note Register.
"Incurrence" shall have the meaning assigned to such term in
Section 11.13 hereof.
"Indebtedness" of any Person shall mean the Debt of such
Person and shall also include, to the extent not otherwise included, any
Capitalized Lease Obligation, the maximum fixed repurchase price of any
Redeemable Stock, Indebtedness secured by a Lien to which the property or assets
owned or held by the Company are subject (whether or not the obligations secured
thereby shall have been assumed), guarantees of items that would constitute
Indebtedness under this definition (whether or not such items would appear upon
the balance sheet of such Person), letters of credit and letter of credit
reimbursement obligations (whether or not such items would appear on such
balance sheet), and obligations in respect of Currency Agreements and Interest
Swap Obligations, and any renewal, extension, refunding or amendment of any of
the foregoing. For purposes of the preceding
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sentence, the maximum fixed repurchase price shall be calculated in accordance
with the terms of such Redeemable Stock as if such Redeemable Stock were
repurchased on any date on which Indebtedness shall be required to be determined
pursuant to this Indenture, and if such price is based upon or measured by the
fair market value of such Redeemable Stock (or any equity security for which it
may be exchanged or converted), such fair market value shall be determined in
good faith by the Board of Directors. The amount of Indebtedness of any Person
at any date shall be the outstanding balance at such date of all unconditional
obligations as described above and the maximum liability of any such contingent
obligations at such date.
"Indenture" means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof.
"Initial Notes" or "Series A Notes" shall have the meanings
assigned to such terms in the Recitals.
"Initial Purchaser" means Merrill Lynch, Pierce, Fenner
& Smith Incorporated.
"Initial Regulation S Notes" means the Notes sold by the
Initial Purchaser in the initial offering contemplated by the Purchase Agreement
in reliance on Regulation S.
"Interest Expense" of any Person shall mean, for any period,
the aggregate amount of (i) interest in respect of Indebtedness of such Person
(including amortization of original issue discount on any Indebtedness and the
interest portion of any deferred payment obligation, calculated in accordance
with the effective interest method of accounting, all commissions, discounts and
other fees and charges owed with respect to letters of credit and bankers'
acceptance financing and the net costs associated with Interest Swap Obligations
and Currency Agreements), (ii) all but the principal component of rentals in
respect of Capitalized Lease Obligations, paid, accrued or scheduled to be paid
or accrued by such Person during such period, and (iii) any dividends or
distributions paid on any Redeemable Stock of such Person, all as determined in
accordance with GAAP.
"Interest Expense Ratio" shall mean, for the Company, the
ratio of (i) the aggregate amount of Consolidated Cash Flow Available for
Interest Expense of the Company for the four fiscal quarters for which financial
information in respect thereof is available immediately prior to the date of the
transaction giving rise to the need to calculate the Interest Expense Ratio (the
"Transaction Date") to (ii) the aggregate Consolidated Interest Expense which
the Company will accrue during the fiscal quarter in which the Transaction Date
occurs and the three fiscal quarters immediately subsequent to such fiscal
quarter, assuming
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the Consolidated Interest Expense accruing on the amount of the Company's
Indebtedness on the Transaction Date and reasonably anticipated by the Company
in good faith to be outstanding from time to time during such period (assuming
the continuation of market interest rate levels prevailing on the Transaction
Date in any calculation of Interest Expense relating to Indebtedness the
interest on which is a function of such market interest rate levels). "Interest
Expense Ratio" shall mean, for any other Person, the ratio of (i) the aggregate
amount of Cash Flow Available for Interest Expense of such other Person for the
four fiscal quarters for which financial information in respect thereof is
available immediately prior to the relevant Transaction Date to (ii) the
aggregate Interest Expense which such other Person will accrue during the fiscal
quarter in which the Transaction Date occurs and the three fiscal quarters
immediately subsequent to such fiscal quarter, assuming the Interest Expense
accruing on the amount of such other Person's Indebtedness on the Transaction
Date and reasonably anticipated by such other Person in good faith to be
outstanding from time to time during such period (assuming the continuation of
market interest rate levels prevailing on the Transaction Date in any
calculation of Interest Expense relating to Indebtedness the interest on which
is a function of such market interest rate levels).
"Interest Swap Obligations" shall mean the obligations of any
Person pursuant to any arrangement with any other Person whereby, directly or
indirectly, such Person is entitled to receive from time to time periodic
payments calculated by applying either a floating or a fixed rate of interest on
a stated notional amount in exchange for periodic payments made by such Person
calculated by applying a fixed or a floating rate of interest on the same
notional amount.
"Issue Price", with respect to the Notes, means $412.66 per
$1,000 principal amount at the Stated Maturity of the Notes (41.266% of the
principal amount at the Stated Maturity).
"Lien" shall mean any lien, security interest, charge or
encumbrance of any kind (including any conditional sale or other title retention
agreement, any lease in the nature thereof, and any agreement to give any
security interest).
"Maturity", when used with respect to the Notes, means the
date on which the principal of or premium, if any, on the Notes become due and
payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration or otherwise.
"Net Income" of any Person means the net income (loss) of such
Person, determined in accordance with GAAP, excluding, however, any gain (but
not loss) realized upon the sale or other disposition (including, without
limitation, dispositions pursuant to sale and leaseback transactions) of any
real property or
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equipment of such Person which is not sold or otherwise disposed of in the
ordinary course of business and any gain (but not loss) realized upon the sale
or other disposition of any Capital Stock of such Person or a Subsidiary of such
Person.
"New York Corporate Trust Office" means the office or agency
of the Trustee designated by the Trustee from time to time in New York, New
York.
"Notes" has the meaning stated in the first Recital of this
Indenture and more particularly means any Notes authenticated and delivered
under this Indenture.
"OID" or "Original Issue Discount" of any Note means the
excess of the "stated redemption price at maturity" of such Note, as defined in
Section 1273 of the Internal Revenue Code of 1986, as amended, or any successor
provisions, and the applicable Treasury Regulations thereunder, whether
denominated as principal or interest, over the Issue Price thereof.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, the President or a Vice President, and by the Treasurer,
an Assistant Treasurer, the Secretary or an Assistant Secretary, of the Company,
and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of
counsel, who may be counsel for the Company.
"Outstanding", when used with respect to the Notes, means, as
of the date of determination, all Notes theretofore authenticated and delivered
under this Indenture, except:
(i) Notes theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Notes or portions thereof for whose payment, as provided in
Section 5.02 hereof, U.S. Government Obligations, in the necessary
amount has been theretofore deposited with the Trustee or any Paying
Agent (other than the Company) in trust or, except for purposes of
Section 5.01, set aside and segregated in trust by the Company (if the
Company shall act as its own Paying Agent) for the Holders of such
Notes; and
(iii) Notes which have been paid pursuant to Section 3.07 or in
exchange for or in lieu of which other Notes have been authenticated
and delivered pursuant to this Indenture, including Initial Notes
exchanged for Exchange Notes pursuant to an Exchange Offer as
contemplated by Section 3.01, and other than any such Notes in respect
of which there shall have been presented to the Trustee proof
satisfactory to it that such Notes are held by a bona fide
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purchaser in whose hands such Notes are valid obligations of
the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Notes have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or whether a
quorum is present at a meeting of Holders of Notes, (i) the principal amount
that shall be deemed to be Outstanding shall be the amount of the principal
thereof that would be due and payable as of the date of such determination upon
acceleration of the maturity thereof pursuant to Section 6.01 and (ii) Notes
owned by the Company or any other obligor upon the Notes or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, or upon such determination as to the presence of a quorum,
only Notes which the Trustee knows to be so owned shall be so disregarded. Notes
so owned which have been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the satisfaction of the Trustee the pledgee's right
so to act with respect to such Notes and that the pledgee is not the Company or
any other obligor upon the Notes or any Affiliate of the Company or of such
other obligor.
"Paying Agent" means any Person authorized by the Company to
pay the principal of and premium, if any, on any Notes on behalf of the Company.
"Permitted Investment" means any investment after November 10,
1988 (a) which when aggregated with all other outstanding Permitted Investments
does not exceed the aggregate of $50 million (excluding amounts which may be
used to acquire up to 100% of the interests in the non-wireline cellular
telephone systems in Elkhart, Indiana, Lincoln, Nebraska and Charlottesville and
Lynchburg, Virginia) plus (i) the amount of Proceeds from the issuance or sale
of Capital Stock of the Company after November 15, 1988, (ii) the amount of
Proceeds from the issuance of indebtedness which is converted or exchanged for
Capital Stock of the Company after November 15, 1988, and (iii) amounts from
dividends or distributions made to the Company or any Restricted Subsidiary from
an Unrestricted Subsidiary after November 15, 1988, and (b) which is (i) loaned
or contributed to any Affiliate controlled, directly or indirectly, by the
Company in the ordinary course of business on terms that are no less favorable
to the Company or the Restricted Subsidiary than those that could have been
obtained in a comparable transaction by the Company or such Restricted
Subsidiary from a Person who is not an Affiliate, or (ii) (A) loaned or
contributed to any Unrestricted Subsidiary or (B), made by way of a guarantee by
the Company or a Restricted Subsidiary of Indebtedness of an Unrestricted
Subsidiary. A Permitted Investment in an Unrestricted Subsidiary
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will be deemed to be no longer outstanding if such Unrestricted Subsidiary has
been classified a Restricted Subsidiary.
"Person" means any individual, corporation, limited liability
company, partnership, joint venture, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Notes, means
the place or places where the principal of and premium, if any, on the Notes are
payable as specified as contemplated by Section 3.01.
"Predecessor Note" of any particular Note means every previous
Note evidencing all or a portion of the same debt as that evidenced by such
particular Note; and, for the purposes of this definition, any Note
authenticated and delivered under Section 3.07 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Note shall be deemed to evidence the same
debt as the mutilated, destroyed, lost or stolen Note.
"Physical Note" has the meaning set forth in
Section 2.04.
"Principal" of any Note, on any day and for any purpose means
the amount (including, without limitation, any accrued OID) that is payable with
respect to such Note as of such date and for such purpose.
"Principal amount" of any Note means the principal amount as
set forth on the face of such Note.
"Proceeds" shall mean, with respect to any issuance or sale of
securities, cash or the fair market value of property other than cash (as
determined by the Board of Directors whose determination shall be evidenced by a
resolution of the Board of Directors filed with the Trustee) received in
connection therewith.
"Pro Forma Operating Cash Flow" shall mean, for any period,
(A) the sum of the amount for such period of (i) Net Income, (ii) Interest
Expense, (iii) provisions for taxes based on income (excluding taxes related to
gains and losses excluded from the definition of Consolidated Net Income or Net
Income), (iv) depreciation expense, (v) amortization expense, and (vi) any other
non-cash items reducing the Net Income of such Person for such period, minus (B)
all non-cash items increasing Net Income of such Person for such period, all as
determined on a consolidated basis for the Company and its Restricted
Subsidiaries in accordance with GAAP after giving effect to the following: (i)
if, during such period, the Company or any of its Restricted Subsidiaries shall
have made any Asset Sale, Pro Forma Operating Cash Flow of the Company for such
period shall be reduced by an amount equal to the Pro Forma Operating Cash Flow
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(if positive) directly attributable to the assets which are the subject of such
Asset Sale for the period subsequent to such sale or increased by an amount
equal to the Pro Forma Operating Cash Flow (if negative) directly attributable
thereto for such period and (ii) if, during such period, Indebtedness is
incurred by the Company or any of its Restricted Subsidiaries for or in
connection with the acquisition of any Person or business which immediately
after acquisition is a Subsidiary or whose assets are held directly by the
Company or a Subsidiary, Pro Forma Operating Cash Flow shall be computed so as
to give pro forma effect to the acquisition of such Person or business.
"Purchase Agreement" means the Purchase Agreement dated as of
January 8, 1998, between the Company and the Initial Purchaser, as such
agreement may be amended from time to time.
"Rating Agency" means either Standard & Poor's
Corporation or its successor ("S&P") or Moody's Investors
Service, Inc. or its successor ("Moody's").
"Redeemable Stock" means any Capital Stock which, by its terms
(or by the terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at
the option of the holder thereof, in whole or in part, on or prior to Maturity
of the Notes.
"Registered Notes" means the Exchange Notes and all other
Notes sold or otherwise disposed of pursuant to an effective registration
statement under the Securities Act, together with their respective Successor
Notes.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of January 15, 1998, between the Company and the Initial
Purchaser, as such agreement may be amended from time to time.
"Registration Statement" means an Exchange Offer
Registration Statement or a Shelf Registration Statement.
"Regulation S" means Regulation S under the Securities Act (or
any successor provision), as it may be amended from time to time.
"Regulation S Certificate" means a certificate substantially
in the form set forth in Annex A hereto.
"Regulation S Legend" means a legend substantially in the form
of the legend required in the form of Note set forth in Section 2.01 to be
placed upon a Regulation S Global Note.
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"Regulation S Notes" means all Notes required pursuant to
Section 3.06(c) to bear a Regulation S Legend. Such term includes the Regulation
S Global Note.
"Repurchase Date" shall have the meaning assigned to such term
in Section 12.01 hereof.
"Repurchase Notice" shall have the meaning assigned to such
term in Section 12.01 hereof.
"Reporting Date" shall mean the date (and each successive
anniversary thereof) established by a Board Resolution pursuant to Section 3.01
which shall be a date no more than ten months from the date of the initial
issuance of the Notes.
"Responsible Officer" when used with respect to the Trustee,
means any officer assigned to and working in the corporate trust department of
the Trustee, or any other officer of the Trustee customarily performing
functions similar to those performed by any of the above designated officers and
also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of his or her knowledge of and
familiarity with the particular subject.
"Restricted Notes" means all Notes required pursuant to
Section 3.06(c) to bear a Restricted Notes Legend. Such term
includes the Restricted Global Note.
"Restricted Notes Certificate" means a certificate
substantially in the form set forth in Annex B hereto.
"Restricted Notes Legend" means a legend substantially in the
form of the legend required in the form of Note set forth in Section 2.01 to be
placed upon a Restricted Note.
"Restricted Payments" shall have the meaning assigned to such
term in Section 11.11.
"Restricted Period" means the period of 41 consecutive days
beginning on and including the later of (i) the day on which Notes are first
offered to persons other than distributors (as defined in Regulation S) in
reliance on Regulation S and (ii) the day on which the closing of the offering
of Notes pursuant to the Purchase Agreement occurs.
"Restricted Subsidiary" means (a) any Subsidiary of the
Company, whether existing on or after the date of the Indenture, unless such
Subsidiary is an Unrestricted Subsidiary or shall have been classified as an
Unrestricted Subsidiary by a resolution adopted by the Board of Directors of the
Company and (b) an Unrestricted Subsidiary which is reclassified as a Restricted
Subsidiary by a resolution adopted by the Board of Directors of the Company,
provided that on and after the date of such reclassification such Unrestricted
Subsidiary shall not
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incur Indebtedness other than that permitted to be incurred by a Restricted
Subsidiary under the provisions of the Indenture. Notwithstanding the foregoing,
Century-ML Cable Venture and its Subsidiaries and Century Venture Corp. and its
Subsidiaries shall be Restricted Subsidiaries unless any of the foregoing shall
be reclassified as an Unrestricted Subsidiary pursuant to clause (d) of the
definition of an Unrestricted Subsidiary.
"Rule 144A" means Rule 144A under the Securities Act (or any
successor provision), as it may be amended from time to time.
"Rule 144A Notes" means the Notes purchased by the Initial
Purchaser from the Company pursuant to the Purchase Agreement, other than the
Initial Regulation S Notes.
"Securities Act" means the Securities Act of 1933, as amended
from time to time, or any successor statute.
"Securities Act Legend" means a Restricted Notes Legend
or a Regulation S Legend.
"Shelf Registration Statement" has the meaning set
forth in the Registration Rights Agreement.
"Note Register" and "Note Registrar" have the respective
meanings specified in Section 3.06.
"Stated Maturity" means January 15, 2008, the date on which
the principal of and premium, if any, on the Notes is due and payable.
"Subsidiary" of any specified Person means (i) a corporation a
majority of whose Capital Stock with voting power, under ordinary circumstances,
to elect directors is at the time, directly or indirectly, owned by such Person
or by such Person and a Subsidiary or Subsidiaries of such Person or by a
Subsidiary or Subsidiaries of such Person or (ii) any other Person (other than a
corporation) in which such Person or such Person and a Subsidiary or
Subsidiaries of such Person or a Subsidiary or Subsidiaries of such Person,
directly or indirectly, at the date of determination thereof has at least
majority ownership interest.
"Transfer Notice" means a certificate substantially in the
form set forth in Annex D hereto.
"Transaction Date" shall have the meaning assigned to such
term in the definition of "Interest Expense Ratio" herein.
"Triggering Event" means the occurrence of any transaction or
event or series of transactions or events which results in (a) the Class A
Common Stock of the Company being held of record by less than three hundred
holders and (b) a Designated
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Downgrading. For purposes of clause (a) above, "held of record" shall have the
meaning set forth in Rule 12g5-1 promulgated by the Commission under the
Exchange Act.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder.
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended, and as in force at the date as of which this instrument was
executed, except as provided in Section 10.05.
"U.S. Government Obligations" has the meaning specified
in Section 5.02.
"Unrestricted Notes Certificate" means a certificate
substantially in the form set forth in Annex C hereto.
"Unrestricted Subsidiary" means (a) Century Cellular Holding
Corp., provided that Century Cellular Holding Corp. may be reclassified as a
Restricted Subsidiary pursuant to clause (b) of the definition of Restricted
Subsidiary, (b) any Subsidiary as of the date of the Indenture which is not a
Restricted Subsidiary, (c) any Subsidiary of an Unrestricted Subsidiary and (d)
any Subsidiary organized or acquired after the date of the Indenture which is
classified as an Unrestricted Subsidiary by a resolution adopted by the Board of
Directors of the Company; provided that a Subsidiary may be classified as an
Unrestricted Subsidiary only if immediately after the date of such
classification, the Company and its Restricted Subsidiaries would have
investments in such Subsidiary which would be Permitted Investments; and
provided further, that, notwithstanding the foregoing, no Subsidiary which is a
Restricted Subsidiary as of the date of the Indenture shall be reclassified as
an Unrestricted Subsidiary or be a Subsidiary of an Unrestricted Subsidiary.
Centennial Cellular is a subsidiary of Century Cellular Holding Corp. The
Trustee shall be given prompt notice by the Company of each resolution adopted
by the Board of Directors under this provision, together with a copy of each
such resolution adopted.
"Vice President" when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president."
SECTION 1.02. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee
to take any action under any provision of this Indenture, the Company shall
furnish to the Trustee an Officers' Certificate stating that all conditions
precedent (including any covenants
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compliance with which constitutes a condition precedent), if any, provided for
in this Indenture relating to the proposed action have been complied with and an
Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent (including any covenants compliance with which constitutes
a condition precedent), if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than annual
certificates provided pursuant to Section 11.08) shall include:
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.03. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or Opinion of
Counsel, or representations by counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion
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is based are erroneous. Any such certificate or Opinion of Counsel or
representation by counsel may be based, insofar as it relates to factual
matters, upon a certificate or opinion of, or representations by, an officer or
officers of the Company stating that the information with respect to such
factual matters is in the possession of the Company, unless such counsel knows,
or in the exercise of reasonable care should know, that the certificate or
opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
SECTION 1.04. Acts of Holders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing or by the record of the Holders voting in favor thereof at
any meeting of such Holders duly called and held in accordance with the
provisions of Article Fourteen; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
or any such record is delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments or such record (and the
action embodied therein and evidenced thereby) are herein sometimes referred to
as the "Act" of the Holders signing such instrument or instruments or voting at
such meeting. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Indenture
and conclusive in favor of the Trustee and the Company if made in the manner
provided in this Section. The record of any meeting of Holders of Notes shall be
proved in the manner provided in Section 14.07 and the record so proved shall be
sufficient for any purpose of this Indenture and conclusive in favor of the
Trustee and the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof, or may be
proved in such other manner as shall be deemed sufficient by the Trustee. Where
such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing
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the same, may also be proved in any other manner which the
Trustee deems sufficient.
(c) The ownership of Notes shall be proved by the Note
Register.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Note shall bind every future
Holder of the same Note and the Holder of every Note issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Note.
(e) The Company or the Trustee, as applicable, may set a date
for the purpose of determining the Holders of Notes entitled to consent, vote or
take any other action referred to in this Section 1.04, which date shall be not
less than 10 days nor more than 60 days prior to the taking of the consent, vote
or other action.
SECTION 1.05. Notices, etc. to Trustee and Company.
Any request, demand, authorization, direction, notice,
consent, waiver or Act of the Holders or other document provided or permitted by
this Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office
and, unless otherwise herein expressly provided, any such document
shall be deemed to be sufficiently made, given, furnished or filed upon
its receipt by a Responsible Officer of the Trustee, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it at the address of its principal
office specified in the first paragraph of this instrument or at any
other address previously furnished in writing to the Trustee by the
Company.
SECTION 1.06. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any
event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
each Holder affected by such event, at his address as it appears in the Note
Register, not later than the latest date, and not earlier than the earliest
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date, prescribed for the giving of such notice. In any case where notice to
Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Where this Indenture
provides for notice in any manner, such notice may be waived in writing by the
Person entitled to receive such notice, either before or after the event, and
such waiver shall be the equivalent of such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or
by reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the Trustee
shall constitute a sufficient notification for every purpose hereunder.
SECTION 1.07. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with
the duties imposed by any of Sections 310 to 317, inclusive, of the Trust
Indenture Act through operation of Section 318(c), such imposed duties shall
control.
SECTION 1.08. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction hereof.
SECTION 1.09. Successors and Assigns.
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.
SECTION 1.10. Separability Clause.
In case any provision in this Indenture or in the Notes shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
SECTION 1.11. Benefits of Indenture.
Nothing in this Indenture or in the Notes, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder and the Holders, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
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SECTION 1.12. Governing Law.
This Indenture and the Notes shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 1.13. Legal Holidays.
In any case where the Stated Maturity of the Notes shall not
be a Business Day at any Place of Payment, then (notwithstanding any other
provision of this Indenture or of the Notes) payment of principal of and
premium, if any, on such Notes need not be made at such Place of Payment on such
date, but may be made on the next succeeding Business Day at such Place of
Payment with the same force and effect as if made on the Stated Maturity.
ARTICLE TWO
NOTE FORMS
SECTION 2.01. Forms Generally.
(a) The form of the face of any Initial Note authenticated and
delivered hereunder shall be substantially as follows:
THE NOTE EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE
UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY
STATE OR OTHER SECURITIES LAWS. NEITHER THIS NOTE NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED, OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR
UNLESS THE TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF, (1)
REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT) OR (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING
THIS NOTE IN AN "OFFSHORE TRANSACTION" PURSUANT TO RULE 904 OF REGULATION S, (2)
AGREES THAT IT WILL NOT PRIOR TO (X) THE DATE WHICH IS TWO YEARS (OR SUCH
SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144(k) UNDER THE SECURITIES ACT OR
ANY SUCCESSOR PROVISION THEREUNDER) AFTER THE LATER OF THE ORIGINAL ISSUE DATE
HEREOF (OR OF ANY PREDECESSOR OF THIS NOTE) OR THE LAST DAY ON WHICH THE COMPANY
OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS NOTE (OR ANY PREDECESSOR
OF THIS NOTE) AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE
LAWS (THE "RESALE RESTRICTION TERMINATION DATE"), OFFER, SELL OR OTHERWISE
TRANSFER THIS NOTE EXCEPT (A) TO THE COMPANY, (B) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO
LONG AS THE NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT THAT
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PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-US PERSONS THAT OCCUR OUTSIDE
THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM
THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND;
PROVIDED THAT THE COMPANY, THE TRUSTEE, THE TRANSFER AGENT AND THE REGISTRAR
SHALL HAVE THE RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (I) PURSUANT TO
CLAUSE (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM AND (II) IN
EACH OF THE FOREGOING CASES, TO REQUIRE THAT A TRANSFER NOTICE IS COMPLETED AND
DELIVERED BY THE TRANSFEROR TO THE COMPANY, THE TRUSTEE, THE TRANSFER AGENT AND
THE REGISTRAR. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER
THE RESALE RESTRICTION TERMINATION DATE. AS USED HEREIN, THE TERMS "OFFSHORE
TRANSACTION", "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM
BY REGULATION S UNDER THE SECURITIES ACT.
[IF THE NOTE IS A GLOBAL NOTE, THEN INSERT -- THIS NOTE IS A
GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS NOTE MAY NOT
BE EXCHANGED IN WHOLE OR IN PART FOR A NOTE REGISTERED, AND NO TRANSFER OF THIS
NOTE IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN
SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE.]
[IF THE NOTE IS A GLOBAL NOTE AND DTC IS TO BE THE DEPOSITARY
THEREFOR, THEN INSERT -- UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
This Note has been issued with original issue discount for
United States Federal income tax purposes. For purposes of Section 1275 of the
United States Internal Revenue Code of 1986, as amended: (i) the issue date of
this security is January 15, 1998, (ii) the issue price for this security is
41.266% of the face amount ($412.66 per $1,000 face amount), (iii) the total
amount of the original issue discount for this security is 58.734% of the face
amount ($587.34 per $1,000 face amount), and (iv) the yield to maturity for this
security is 9.05%.
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<PAGE>
CENTURY COMMUNICATIONS CORP.
SENIOR DISCOUNT NOTE DUE JANUARY 15, 2008, SERIES A
[IF RESTRICTED GLOBAL NOTE -- CUSIP Number [ ]]
[IF REGULATION S GLOBAL NOTE -- CUSIP Number [ ]]
[IF NON-GLOBAL NOTE -- CUSIP Number [ ]]
No. [ ] $_______________
SENIOR DISCOUNT NOTE DUE JANUARY 15, 2008, SERIES A
CUSIP NO. ________
No. ________ $________
Century Communications Corp., a New Jersey corporation (the
"Company" which term includes any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
_______________ or registered assigns, the principal sum of $_______________
United States dollars [IF THE NOTE IS A GLOBAL NOTE, THEN INSERT -- or such
other principal amount (which, when taken together with the principal amounts at
Maturity of all other Outstanding Notes, shall not exceed $605,000,000 in the
aggregate at any one time) as may be set forth in the records of the Trustee
hereinafter referred to in accordance with the Indenture], on January 15, 2008,
at the office or agency of the Trustee referred to below.
The Holder of this Series A Note is entitled to the benefits
of the Registration Rights Agreement dated as of January 15, 1998, between the
Company and the Initial Purchaser, pursuant to which, subject to the terms and
conditions thereof, the Company is obligated to consummate the Exchange Offer
pursuant to which the Holder of this Note shall have the right to exchange this
Note for Senior Discount Notes Due January 15, 2008, Series B (the "Series B
Notes") in like principal amount as provided therein. The Series A Notes and the
Series B Notes are together referred to as the "Notes". The Series A Notes rank
pari passu in right of payment with the Series B Notes.
The principal of and premium, if any, on this Note shall be
payable in immediately available funds and exchange or transfer of this Note,
will be made at the office or agency of the Trustee in St. Paul, Minnesota
maintained for that purpose, unless the Company shall maintain some other office
or agency for such purposes and shall give the Trustee notice thereof, in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts; provided, however, that
payment of such principal of and premium, if any, on this Note may be made at
the option of the Company by check payable in such money.
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<PAGE>
The Notes will mature on January 15, 2008 and may not be
redeemed prior to maturity. The Notes shall not have the benefit of any sinking
fund obligations.
Reference is hereby made to the further provisions of this
Note set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been duly
executed by the Trustee referred to on the reverse hereof or by the
authenticating agent appointed as provided in the Indenture by manual signature
of an authorized signer, this Note shall not be entitled to any benefit under
the Indenture, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed by the manual or facsimile signature of its authorized officers
and its corporate seal to be affixed or reproduced hereon.
Dated: _______________ CENTURY COMMUNICATIONS CORP.
By:
------------------------
[SEAL] Name:
Title:
Attest:
- ------------------------------
Authorized Officer
(b) The form of the face of any Series B Notes authenticated
and delivered hereunder shall be substantially as follows:
[IF THE NOTE IS A GLOBAL NOTE, THEN INSERT -- THIS NOTE IS A
GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS NOTE MAY NOT
BE EXCHANGED IN WHOLE OR IN PART FOR A NOTE REGISTERED, AND NO TRANSFER OF THIS
NOTE IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN
SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE.]
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<PAGE>
[IF THE NOTE IS A GLOBAL NOTE AND DTC IS TO BE THE DEPOSITARY THEREFOR,
THEN INSERT -- UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT,
AND ANY SUCH CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
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<PAGE>
CENTURY COMMUNICATIONS CORP.
SENIOR DISCOUNT NOTE DUE JANUARY 15, 2008, SERIES B
CUSIP NO. _______________
No. [ ] $_______________
SENIOR NOTE DUE JANUARY 15, 2008, SERIES B
Century Communications Corp, a New Jersey corporation (the
"Company", which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
_______________ or registered assigns, the principal sum of $_______________
United States dollars [IF THE NOTE IS A GLOBAL NOTE, THEN INSERT -- or such
other principal amount (which, when taken together with the principal amounts at
Maturity of all other Outstanding Notes, shall not exceed $605,000,000 in the
aggregate at any one time) as may be set forth in the records of the Trustee
hereinafter referred to in accordance with the Indenture], on January 15, 2008,
at the office or agency of the Trustee referred to below.
This Series B Note was issued pursuant to the Exchange Offer
pursuant to which Senior Discount Notes Due January 15, 2008, Series A (the
"Series A Notes") in like principal amount were exchanged for Series B Notes.
The Series B Notes rank pari passu in right of payment with the Series A Notes.
The principal of and premium, if any, on this Note shall be
payable in immediately available funds and exchange or transfer of this Note,
will be made at the office or agency of the Trustee in St. Paul, Minnesota
maintained for that purpose, unless the Company shall maintain some other office
or agency for such purposes and shall give the Trustee notice thereof, in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts; provided, however, that
payment of such principal and premium, if any, on this Note may be made at the
option of the Company by check payable in such money.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS
NOTE SET FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL
PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH AT THIS PLACE.
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Unless the certificate of authentication hereon has been duly
executed by the Trustee referred to on the reverse hereof or by the
authenticating agent appointed as provided in the Indenture by manual signature
of an authorized signer, this Note shall not be entitled to any benefit under
the Indenture, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed by the manual or facsimile signature of its authorized officers
and its corporate seal to be affixed or reproduced hereon.
Dated: _______________ CENTURY COMMUNICATIONS CORP.
By:_________________________
[SEAL] Name:
Title:
Attest:
- ---------------------------
Authorized Officer
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<PAGE>
SECTION 2.02. Form of Reverse of Notes.
(a) The form of the reverse of the Series A Notes shall be
substantially as follows:
CENTURY COMMUNICATIONS CORP.
SENIOR DISCOUNT NOTE DUE JANUARY 15, 2008, SERIES A
This Note is one of a duly authorized issue of Notes of the
Company designated as its Senior Discount Notes Due January 15, 2008 (the
"Notes"), limited (except as otherwise provided in the Indenture referred to
below) in aggregate principal amount to $605,000,000, issued under and subject
to the terms of an indenture (the "Indenture") dated as of January 15, 1998
among the Company and First Trust of California, National Association, as
trustee (the "Trustee", which term includes any successor trustee under the
Indenture), to which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights, limitations of rights,
duties, obligations and immunities thereunder of the Company, the Trustee and
the Holders of the Notes, and of the terms upon which the Notes are, and are to
be, authenticated and delivered.
Subject to certain conditions set out in the Indenture, the
Company may, by the irrevocable deposit of money or U.S. Government Obligations
or both, discharge its obligations with respect to the Notes and/or cease to be
under any further obligation to comply with or be subject to certain covenants
and provisions of the Indenture.
In the event of a Triggering Event, each Noteholder shall have
the right, at such holder's option but subject to the provisions of Section
12.01 of the Indenture, to sell to the Company, and to require the Company to
purchase, all or any part of such holder's Notes on the date (the "Repurchase
Date") which is 115 days after the Triggering Event Date for an amount equal to
101% of the Accreted Value of such Notes on the date of purchase.
The Company shall mail by first-class mail, postage prepaid,
to all holders of record of the Notes, within 30 days after a Triggering Event
Date, a notice of the occurrence of such Triggering Event, specifying the date
by which a holder of Notes must notify the Trustee of such holder's intention to
exercise the repurchase right and setting forth the procedure which such holder
must follow to exercise such right. The Company shall deliver a copy of such
notice to the Trustee and shall cause a copy of such notice to be published in
an Authorized Newspaper. Notes in denominations larger than $1,000 may be
repurchased in part but only in whole multiples of $1,000.
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<PAGE>
Events of Default under the Indenture include the following:
default in payment of principal of and premium, if any, on the Notes at the
Stated Maturity; failure by the Company for 90 days after notice to it as
provided in the Indenture to comply with any of its other covenants, conditions
or agreements in the Indenture or the Notes; and certain events of bankruptcy,
insolvency or reorganization. Subject to certain limitations in the Indenture,
if an Event of Default occurs and is continuing, the Trustee or the holders of
at least 25% of the aggregate principal amount of the Notes then Outstanding may
declare the Accreted Value of the Notes as of the date of such Event of Default
to be due and payable immediately. The Indenture provides that such declaration
in certain events may be annulled by the holders of a majority in aggregate
principal amount of the Notes then Outstanding. Noteholders may not enforce the
Indenture or the Notes except as provided in the Indenture. The Trustee may
require indemnity satisfactory to it before it enforces the Indenture or the
Notes. Subject to certain limitations, holders of a majority in principal amount
of the Notes then Outstanding may direct the Trustee in its exercise of any
trust or power. The Trustee may withhold from Noteholders notice of any
continuing default (except a default in payment of principal) if it determines
that withholding notice is in their interests. The Company must furnish annual
compliance certificates to the Trustee. The above description of Events of
Default and remedies is qualified by reference and subject in its entirety to
the more complete description thereof contained in the Indenture.
The Indenture permits, with certain exceptions (including
certain amendments permitted without the consent of any Holders) as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Notes under the
Indenture at any time by the Company and the Trustee with the consent of the
Holders of not less than a majority in aggregate principal amount of the Notes
at the time Outstanding. The Indenture also contains provisions permitting the
Holders of specified percentages in aggregate principal amount of the Notes at
the time Outstanding, on behalf of the Holders of all the Notes to waive
compliance by the Company with certain provisions of the Indenture and certain
past Defaults under the Indenture and their consequences. Any such consent or
waiver by or on behalf of the Holder of this Note shall be conclusive and
binding upon such Holder and upon all future Holders of this Note and of any
Note issued upon the registration of transfer hereof or in exchange hereof or in
lieu hereof, whether or not notation of such consent or waiver is made upon this
Note.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Company or
any other obligor on the Notes, which is absolute and unconditional, to pay the
principal of and
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<PAGE>
premium, if any, on this Note at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in and subject to the provisions of the Indenture,
the Holder of this Note shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Notes, the Holders of not less than 25% in principal amount of the Notes at the
time Outstanding shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default as Trustee and offered the
Trustee reasonable indemnity and the Trustee shall not have received from the
Holders of a majority in principal amount of Notes at the time Outstanding a
direction inconsistent with such request and shall have failed to institute any
such proceeding for 60 days after receipt of such notice, request and offer of
indemnity. The foregoing shall not apply to certain suits described in the
Indenture, including any suit instituted by the Holder of this Note for the
enforcement of any payment of principal hereof or premium, if any, hereon.
At any time when the Company is not subject to Sections 13 or
15(d) of the Securities Exchange Act of 1934, as amended (or any successor
provision(s) thereto), upon the written request of a Holder of a Series A Note,
the Company will promptly furnish or cause to be furnished such information as
is specified pursuant to Rule 144A(d)(4) under the Securities Act or 1933, as
amended (the "Securities Act") (or any successor provision thereto), to such
Holder or to a prospective purchaser of such Series A Note who such Holder
informs the Company is reasonably believed to be a Qualified Institutional
Buyer, as the case may be, in order to permit compliance by such Holder with
Rule 144A under the Securities Act.
No service charge shall be made for any registration of
transfer or exchange of Notes, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Note is registrable in the
Note Register, upon surrender of this Note for registration of transfer at the
office or agency of the Company in The City of New York, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Note Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Notes, of
authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
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<PAGE>
The Notes are issuable only in registered form without coupons
in denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, Notes are
exchangeable for a like aggregate principal amount of Notes of a different
authorized denomination, as requested by the Holder surrendering the same.
Prior to due presentment of this Note for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Note is registered as the owner hereof
for all purposes, whether or not this Note is overdue, and neither the Company,
the Trustee nor any such agent shall be affected by notice to the contrary.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS
PRINCIPLES THEREOF.
All terms used in this Note which are defined in the Indenture
and not otherwise defined herein shall have the meanings assigned to them in the
Indenture.
(b) The form of the reverse of the Series B Notes shall be
substantially as follows:
CENTURY COMMUNICATIONS CORP.
SENIOR DISCOUNT NOTE DUE JANUARY 15, 2008, SERIES B
This Note is one of a duly authorized issue of Notes of the
Company designated as its Senior Discount Notes Due January 15, 2008 (the
"Notes"), limited (except as otherwise provided in the Indenture referred to
below) in aggregate principal amount at Maturity to $605,000,000, issued under
and subject to the terms of an indenture (the "Indenture") dated as of January
15, 1998 among the Company and First Trust of California, National Association,
as trustee (the "Trustee", which term includes any successor trustee under the
Indenture), to which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights, limitations of rights,
duties, obligations and immunities thereunder of the Company, the Trustee and
the Holders of the Notes, and of the terms upon which the Notes are, and are to
be, authenticated and delivered.
Subject to certain conditions set out in the Indenture, the
Company may, by the irrevocable deposit of money or U.S. Government Obligations
or both, discharge its obligations with respect to the Notes and/or cease to be
under any further obligation to comply with or be subject to certain covenants
and provisions of the Indenture.
In the event of a Triggering Event, each Noteholder shall have
the right, at such holder's option but subject to the
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<PAGE>
provisions of Section 12.01 of the Indenture, to sell to the Company, and to
require the Company to purchase, all or any part of such holder's Notes on the
date (the "Repurchase Date") which is 115 days after the Triggering Event Date
for an amount equal to 101% of the Accreted Value of such Notes on the date of
purchase.
The Company shall mail by first-class mail, postage prepaid,
to all holders of record of the Notes, within 30 days after a Triggering Event
Date, a notice of the occurrence of such Triggering Event, specifying the date
by which a holder of Notes must notify the Trustee of such holder's intention to
exercise the repurchase right and setting forth the procedure which such holder
must follow to exercise such right. The Company shall deliver a copy of such
notice to the Trustee and shall cause a copy of such notice to be published in
an Authorized Newspaper. Notes in denominations larger than $1,000 may be
repurchased in part but only in whole multiples of $1,000.
Events of Default under the Indenture include the following:
default in payment of principal when due on the Notes (upon maturity,
repurchase, or otherwise); failure by the Company for 90 days after notice to it
as provided in the Indenture to comply with any of its other covenants,
conditions or agreements in the Indenture or the Notes; and certain events of
bankruptcy, insolvency or reorganization. Subject to certain limitations in the
Indenture, if an Event of Default occurs and is continuing, the Trustee or the
holders of at least 25% of the aggregate principal amount of the Notes then
Outstanding may declare the Accreted Value of the Notes as of the date of such
Event of Default to be due and payable immediately. The Indenture provides that
such declaration in certain events may be annulled by the holders of a majority
in aggregate principal amount of the Notes then Outstanding. Noteholders may not
enforce the Indenture or the Notes except as provided in the Indenture. The
Trustee may require indemnity satisfactory to it before it enforces the
Indenture or the Notes. Subject to certain limitations, holders of a majority in
principal amount of the Notes then Outstanding may direct the Trustee in its
exercise of any trust or power. The Trustee may withhold from Noteholders notice
of any continuing default (except a default in payment of principal or interest)
if it determines that withholding notice is in their interests. The Company must
furnish annual compliance certificates to the Trustee. The above description of
Events of Default and remedies is qualified by reference and subject in its
entirety to the more complete description thereof contained in the Indenture.
The Indenture permits, with certain exceptions (including
certain amendments permitted without the consent of any Holders) as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Notes under the
Indenture at any time by the Company and the Trustee with the consent of the
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Holders of not less than a majority in aggregate principal amount of the Notes
at the time Outstanding. The Indenture also contains provisions permitting the
Holders of specified percentages in aggregate principal amount of the Notes at
the time Outstanding, on behalf of the Holders of all the Notes to waive
compliance by the Company with certain provisions of the Indenture and certain
past Defaults under the Indenture and their consequences. Any such consent or
waiver by or on behalf of the Holder of this Note shall be conclusive and
binding upon such Holder and upon all future Holders of this Note and of any
Note issued upon the registration of transfer hereof or in exchange hereof or in
lieu hereof, whether or not notation of such consent or waiver is made upon this
Note.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Company or
any other obligor on the Notes, which is absolute and unconditional, to pay the
principal of and premium, if any, on this Note at the times, place and rate, and
in the coin or currency, herein prescribed.
As provided in and subject to the provisions of the Indenture,
the Holder of this Note shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Notes, the Holders of not less than 25% in principal amount of the Notes at the
time Outstanding shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default as Trustee and offered the
Trustee reasonable indemnity and the Trustee shall not have received from the
Holders of a majority in principal amount of Notes at the time Outstanding a
direction inconsistent with such request and shall have failed to institute any
such proceeding for 60 days after receipt of such notice, request and offer of
indemnity. The foregoing shall not apply to certain suits described in the
Indenture, including any suit instituted by the Holder of this Note for the
enforcement of any payment of principal hereof or premium, if any, hereon.
No service charge shall be made for any registration of
transfer or exchange of Notes, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Note is registrable in the
Note Register, upon surrender of this Note for registration of transfer at the
office or agency of the Company in The City of New York, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Note Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon
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one or more new Notes, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Notes are issuable only in registered form without coupons
in denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, Notes are
exchangeable for a like aggregate principal amount of Notes of a different
authorized denomination, as requested by the Holder surrendering the same.
Prior to due presentment of this Note for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Note is registered as the owner hereof
for all purposes, whether or not this Note is overdue, and neither the Company,
the Trustee nor any such agent shall be affected by notice to the contrary.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS
PRINCIPLES THEREOF.
All terms used in this Note which are defined in the Indenture
and not otherwise defined herein shall have the meanings assigned to them in the
Indenture.
SECTION 2.03. Form of Trustee's Certificate
of Authentication.
The Trustee's certificate of authentication on all Notes shall
be in substantially the following form:
This is one of the Notes issued under the within-mentioned
Indenture.
FIRST TRUST OF CALIFORNIA, NATIONAL
ASSOCIATION
as Trustee
Date: ____________________ By ___________________________
Authorized Signature
SECTION 2.04. Book-Entry Provisions for Notes.
(a) Each Note initially shall (i) be registered in the name of
the Depositary or the nominee of the Depositary, (ii) be deposited with, or on
behalf of, the Depositary or with the Trustee, as custodian for the Depositary,
and (iii) bear the legends set forth in Section 2.01. Members of, or
participants in, the Depositary ("Agent Members") shall have no rights under
this Indenture with respect to any Notes held on their behalf by the Depositary,
or the Trustee as its custodian, or under the
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Notes, and the Depositary may be treated by the Company, the Trustee and any
agent of the Company or the Trustee as the absolute owner of such Note for all
purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent
the Company, the Trustee or any agent of the Company or the Trustee from giving
any effect to any written certification, proxy or other authorization furnished
by the Depository or shall impair, as between the Depositary and its Agent
Members, the operation of customary practices governing the exercise of the
rights of a Holder of any Notes.
(b) Transfers of each Note shall be limited to transfers of
such Note in whole, but not in part, to the Depositary, its successors or their
respective nominees. Interests of beneficial owners in each Note may be
transferred in accordance with the rules and procedures of the Depositary. In
addition, permanent certificate Notes in registered form ("Physical Notes")
shall be issued to all beneficial owners in exchange for their beneficial
interests in a Note if (i) the Company notifies the Trustee in writing that (x)
the Depositary is at any time unwilling or unable to continue as a depository
for such Note and a successor depository is not appointed by the Company within
90 days or (y) the Depositary has ceased to be a clearing agency registered
under the Exchange Act, (ii) the Company, at its option, notifies the Trustee in
writing that it elects to cause the issuance of Notes in definitive form under
the Indenture, or (iii) there is continuing an Event of Default as set forth in
the Indenture and a Holder so requests.
(c) In connection with any transfer of a portion of the
beneficial interest in a Note pursuant to Section 2.04(b) to beneficial owners
who are required to hold Physical Notes, the Note Registrar shall reflect on its
books and records the date and a decrease in the principal amount of such Note
in an amount equal to the principal amount of the beneficial interest in such
Note to be transferred, and the Company shall execute, and the Trustee shall
authenticate and deliver, one or more Physical Notes of like tenor and amount.
(d) In connection with the transfer in its entirety of a Note
to beneficial owners pursuant to Section 2.04(b), such Note shall be surrendered
to the Trustee for cancellation, and the Company shall execute, and the Trustee
shall authenticate and deliver, to each beneficial owner identified by the
Depositary in exchange for its beneficial interest in such Note an equal
principal amount of Physical Notes of authorized denominations.
(e) A Holder of Notes may grant proxies and otherwise
authorize any person, including Agent Members and persons that may hold
interests through Agent Members, to take any action which a Holder is entitled
to take under this Indenture or the Notes.
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ARTICLE THREE
THE NOTES
Section 3.01. Title and Terms.
The aggregate principal amount of Notes which may be
authenticated and delivered under this Indenture is limited to $605,000,000 in
principal amount at Maturity of Notes, except for Notes authenticated and
delivered upon registration of transfer of, or in exchange for, or in lieu of,
other Notes of the same aggregate principal amount at Maturity pursuant to
Section 3.03, 3.04, 3.05, 3.06, or 3.07. The Company may issue Exchange Notes
from time to time pursuant to an Exchange Offer, in each case pursuant to a
Board Resolution and subject to Section 3.03, in authorized denominations in
exchange for a like principal amount of Initial Notes. Upon any such exchange
the Initial Notes shall be canceled in accordance with Section 3.10 and shall no
longer be deemed Outstanding for any purpose. In no event shall the aggregate
principal amount at Maturity of Initial Notes and Exchange Notes Outstanding
exceed $605,000,000.
The Notes shall be known and designated as the "Senior
Discount Notes Due January 15, 2008" of the Company. The Stated Maturity of the
Notes shall be January 15, 2008.
The principal, premium, if any, and Additional Amounts, if
any, with respect to the Notes shall be payable in immediately available funds
and, subject to the limitations applicable to the Global Notes, the Notes will
be exchangeable and transferable at an office or agency of the Company in The
City of New York maintained for such purposes (which initially will be the New
York Corporate Trust Office of the Trustee) or at such other office or agency as
may be maintained for such purpose, in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of
public and private debts.
The Notes shall be subject to defeasance or covenant
defeasance at the option of the Company in accordance with Section 5.02.
For all purposes hereunder, the Series A Notes and the Series
B Notes will be treated as one class, including with respect to any vote by
Holders of Notes, or any amendment, waiver, acceleration or any other Act of the
Holders, and are together referred to as the "Notes". The Series A Notes and
Series B Notes rank pari passu in right of payment of principal, with each other
and rank pari passu in right of payment of principal and premium, if any, with
all other existing and future unsecured and unsubordinated indebtedness of, the
Company.
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Section 3.02. Denominations.
The Notes shall be issuable only in fully registered form
without coupons, in denominations of $1,000 and any integral multiple thereof.
Section 3.03. Execution, Authentication, Delivery and Dating.
The Notes shall be executed on behalf of the Company by one of
its Chairman of the Board, its President, its Chief Executive Officer, its Chief
Operating Officer, its Chief Financial Officer or one of its Vice Presidents
under its corporate seal reproduced thereon attested by its Secretary or one of
its Assistant Secretaries. The signatures of any of these officers on the Notes
may be manual or facsimile.
Notes bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Notes or did
not hold such offices at the date of such Notes.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Notes executed by the
Company to the Trustee for authentication, together with a Company Order,
specifying the amounts of Rule 144A Notes and Initial Regulation S Notes, and
requesting the authentication and delivery of such Notes; and the Trustee in
accordance with such Company Order shall authenticate and deliver such Notes as
provided in this Indenture and not otherwise.
Each Note shall be dated the date of its authentication.
No Note thereon shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on such
Note a certificate of authentication substantially in the form provided for
herein duly executed by the Trustee by manual signature of an authorized
signatory, and such certificate upon any Note shall be conclusive evidence, and
the only evidence, that such Note has been duly authenticated and delivered
hereunder and is entitled to the benefits of this Indenture.
In case the Company pursuant to Article Nine, shall, in a
single transaction or through a series of related transactions, be consolidated
or merged with or into any other Person or shall sell, assign, convey, transfer,
lease or otherwise dispose of all or substantially all of its properties and
assets on a consolidated basis to any Person, and the successor Person resulting
from such consolidation or surviving such merger, or into which the Company
shall have been merged, or the successor Person which shall have participated in
the sale, assignment,
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conveyance, transfer, lease or other disposition as aforesaid, shall have
executed an indenture supplemental hereto, with the Trustee pursuant to Article
Ten, any of the Notes authenticated or delivered prior to such consolidation,
merger, sale, assignment, conveyance, transfer, lease or other disposition may,
from time to time, at the request of the successor Person, be exchanged for
other Notes executed in the name of the successor Person with such changes in
phraseology and form as may be appropriate, but otherwise in substance of like
tenor as the Notes surrendered for such exchange and of like principal amount;
and the Trustee, upon Company Request of the successor Person, shall
authenticate and deliver Notes as specified in such request for the purpose of
such exchange. If Notes shall at any time be authenticated and delivered in any
new name of a successor Person pursuant to this Section 3.03 in exchange or
substitution for or upon registration of transfer of any Notes, such successor
Person, at the option of the Holders but without expense to them, shall provide
for the exchange of all Notes at the time Outstanding for Notes authenticated
and delivered in such new name.
At any time and from time to time after the execution and
delivery of this Indenture and after the effectiveness of a Registration
Statement under the Securities Act with respect thereto, the Company may deliver
Exchange Notes executed by the Company to the Trustee for authentication,
together with a Company Order for the authentication and delivery of such
Exchange Notes and a like principal amount of Initial Notes for cancellation in
accordance with Section 3.10, and the Trustee in accordance with the Company
Order shall authenticate and deliver such Notes. Prior to authenticating such
Exchange Notes, and accepting any additional responsibilities under this
Indenture in relation to such Notes, the Trustee shall be furnished and (subject
to Section 7.01) shall be fully protected in relying upon, an Opinion of Counsel
stating in substance:
(1) that all conditions hereunder precedent to the
authentication and delivery of such Exchange Notes have been complied
with and that such Exchange Notes, when such Notes have been duly
authenticated and delivered by the Trustee (and subject to any other
conditions specified in such Opinion of Counsel), have been duly issued
and delivered and will constitute valid and legally binding obligations
of the Company, enforceable in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium
and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles; and
(2) that the issuance of the Exchange Notes in
exchange for Initial Notes has been effected in compliance with the
Securities Act.
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Section 3.04. Temporary Notes.
Subject to limitations with respect to Global Notes, pending
the preparation of definitive Notes, the Company may execute, and upon Company
Order the Trustee shall authenticate and make available for delivery, temporary
Notes which are printed, lithographed, typewritten or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive Notes in
lieu of which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Notes may
determine, as conclusively evidenced by their execution of such Notes.
If temporary Notes are issued, the Company will cause
definitive Notes to be prepared without unreasonable delay. After the
preparation of definitive Notes, the temporary Notes shall be exchangeable for
definitive Notes upon surrender of the temporary Notes at the office or agency
of the Company designated for such purpose, pursuant to Section 11.02, without
charge to the Holder. Upon surrender for cancellation of any one or more
temporary Notes, the Company shall execute and the Trustee shall authenticate
and make available for delivery in exchange therefor a like principal amount of
definitive Notes of authorized denominations. Until so exchanged the temporary
Notes shall in all respects be entitled to the same benefits under this
Indenture as definitive Notes.
Section 3.05. Global Notes.
(a) Each Global Note authenticated under this Indenture shall
be registered in the name of the Depositary designated by the Company for such
Global Note or a nominee thereof and delivered to such Depositary or a nominee
thereof or custodian therefor, and each such Global Note shall constitute a
single Note for all purposes of this Indenture.
(b) Notwithstanding any other provision in this Indenture, no
Global Note may be exchanged in whole or in part for Notes registered, and no
transfer of a Global Note in whole or in part may be registered, in the name of
any Person other than the Depositary for such Global Note or a nominee thereof
unless (i) such Depositary (A) has notified the Company that it is unwilling or
unable to continue as Depositary for such Global Note and a successor depositary
is not appointed by the Company within 90 days, or (B) has ceased to be a
clearing agency registered as such under the Exchange Act, (ii) there shall have
occurred and be continuing an Event of Default or any event which after notice
or lapse of time or both would be an Event of Default with respect to such
Global Note, or (iii) the Company executes and delivers to the Trustee a Company
Order stating that all Global Notes shall be exchanged in whole for Notes that
are not Global Notes (in which case such exchange shall be effected by the
Trustee). Upon the occurrence in respect of any Global Note of any one or more
of the conditions specified in clauses
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(i), (ii) or (iii) of the preceding sentence, such Global Note may be registered
for transfer or exchange for Notes registered in the name of, or authenticated
and delivered to, such Persons as the Depositary shall direct. All or any
portion of a Global Note may be exchanged for a Note that has a like aggregate
principal amount and is not a Global Note, upon 20 days' prior request made by
the Depositary or its authorized representative to the Trustee.
(c) If any Global Note is to be exchanged for other Notes or
canceled in whole, it shall be surrendered by or on behalf of the Depositary or
its nominee to the Trustee, as Note Registrar, for exchange or cancellation as
provided in this Article Three. If any Global Note is to be exchanged for other
Notes or canceled in part, or if another Note is to be exchanged in whole or in
part for a beneficial interest in any Global Note, then either (i) such Global
Note shall be so surrendered for exchange or cancellation as provided in this
Article Three, or (ii) the principal amount thereof shall be reduced or
increased by an amount equal to the portion thereof to be so exchanged or
cancelled, or equal to the principal amount of such other Note to be so
exchanged for a beneficial interest therein, as the case may be, by means of an
appropriate adjustment made on the records of the Trustee, as Note Registrar,
whereupon the Trustee, in accordance with the Applicable Procedures, shall
instruct the Depositary or its authorized representative to make a corresponding
adjustment to its records. Upon any such surrender or adjustment of a Global
Note, the Trustee shall, subject to Section 3.05(b) and as otherwise provided in
this Article Three, authenticate and make available for delivery any Notes
issuable in exchange for such Global Note (or any portion thereof) to or upon
the order of, and registered in such names as may be directed by, the Depositary
or its authorized representative. Upon the request of the Trustee in connection
with the occurrence of any of the events specified in Section 3.05(b), the
Company shall promptly make available to the Trustee a reasonable supply of
Notes that are not in the form of Global Notes. The Trustee shall be entitled to
rely upon any order, direction or request of the Depositary or its authorized
representative which is given or made pursuant to this Article Three if such
order, direction or request is given or made in accordance with the Applicable
Procedures.
(d) Every Note authenticated and delivered upon registration
of transfer of, or in exchange for or in lieu of, a Global Note or any portion
thereof, whether pursuant to this Article Three, Section 10.06 or otherwise,
shall be authenticated and delivered in the form of, and shall be, a Global
Note, unless such Note is registered in the name of a Person other than the
Depositary for such Global Note or a nominee thereof.
(e) The Depositary or its nominee, as registered owner of a
Global Note, shall be the Holder of such Global Note for all purposes under this
Indenture, the Notes and owners of
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beneficial interests in a Global Note shall hold such interests pursuant to the
Applicable Procedures. Accordingly, any such owner's beneficial interest in a
Global Note will be shown only on, and the transfer of such interest shall be
effected only through, records maintained by the Depositary or its nominee or
its Agent Members.
Section 3.06. Registration, Registration of Transfer and
Exchange Generally; Certain Transfers and
Exchanges; Securities Act Legends.
(a) Registration, Registration of Transfer and Exchange
Generally. The Company shall cause to be kept at the Corporate Trust Office of
the Trustee a register (the register maintained in such office and in any other
office or agency designated pursuant to Section 11.02 being herein sometimes
collectively referred to as the "Note Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Notes and of transfers and exchanges of Notes. The Trustee is
hereby appointed "Note Registrar" for the purpose of registering Notes and
transfers and exchanges of Notes as herein provided. Such Note Register shall
distinguish between Initial Notes and Exchange Notes.
Subject to the limitations applicable to Global Notes, upon
surrender for registration of transfer of any Note at an office or agency of the
Company designated pursuant to Section 11.02 for such purpose, the Company shall
execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Notes of any authorized
denominations, of a like aggregate principal amount and tenor and bearing such
restrictive legends as may be required by this Indenture.
At the option of the Holder, Notes (except Global Notes) may
be exchanged for other Notes of any authorized denominations, of a like
aggregate principal amount and tenor and bearing such restrictive legends as may
be required by this Indenture, upon surrender of the Notes to be exchanged at
such office or agency. Whenever any Notes are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and make available for
delivery, the Notes which the Holder making the exchange is entitled to receive.
All Notes issued upon any registration of transfer or exchange
of Notes shall be the valid obligations of the Company evidencing the same debt,
and (except for the differences between Initial Notes and Exchange Notes
provided for herein) entitled to the same benefits under this Indenture, as the
Notes surrendered upon such registration of transfer or exchange.
Every Note presented or surrendered for registration of
transfer or for exchange shall (if so required by Company or the
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Trustee) be duly endorsed, or be accompanied by a written instrument of transfer
in form satisfactory to the Company and the Note Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of Notes, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Notes, other than
exchanges pursuant to Section 3.03, 3.04, 3.05, 3.06 or 10.06 not involving any
transfer.
(b) Certain Transfers and Exchanges. Notwithstanding any other
provision of this Indenture or the Notes, transfers and exchanges of Notes and
beneficial interests in a Global Note of the kinds specified in this Section
3.06(b) shall be made only in accordance with this Section 3.06(b).
(i) Restricted Global Note to Regulation S Global
Note. If the owner of a beneficial interest in the Restricted Global
Note wishes at any time to transfer such interest to a Person who
wishes to take delivery thereof in the form of a beneficial interest in
the Regulation S Global Note, such transfer may be effected only in
accordance with the provisions of this clause (b)(i) and clause
(b)(vii) below and subject to the Applicable Procedures. Upon receipt
by the Trustee, as Note Registrar, of (A) an order given by the
Depositary or its authorized representative directing that a beneficial
interest in the Regulation S Global Note in a specified principal
amount be credited to a specified Agent Member's account and that a
beneficial interest in the Restricted Global Note in an equal principal
amount be debited from another specified Agent Member's account, and
(B) a Regulation S Certificate in the form provided herein, and duly
executed by the owner of such beneficial interest in the Restricted
Global Note or his attorney duly authorized in writing, then the
Trustee, as Note Registrar, but subject to clause (b)(vii) below, shall
reduce the principal amount of the Restricted Global Note and increase
the principal amount of the Regulation S Global Note by such specified
principal amount as provided in Section 3.05(c).
(ii) Regulation S Global Note to Restricted Global
Note. If the owner of a beneficial interest in the Regulation S Global
Note wishes at any time to transfer such interest to a Person who
wishes to take delivery thereof in the form of a beneficial interest in
the Restricted Global Note, such transfer may be effected only in
accordance with this clause (b)(ii) and subject to the Applicable
Procedures. Upon receipt by the Trustee, as Note Registrar, of (A) an
order given by the Depositary or its authorized representative
directing that a beneficial interest in the
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Restricted Global Note in a specified principal amount be credited to a
specified Agent Member's account and that a beneficial interest in the
Regulation S Global Note in an equal principal amount be debited from
another specified Agent Member's account, and (B) if such transfer is
to occur during the Restricted Period, a Restricted Notes Certificate,
in the form provided herein and duly executed by the owner of such
beneficial interest in the Regulation S Global Note or his attorney
duly authorized in writing, then the Trustee, as Note Registrar, shall
reduce the principal amount of the Regulation S Global Note and
increase the principal amount of the Restricted Global Note by such
specified principal amount as provided in Section 3.05(c).
(iii) Restricted Non-Global Note to Restricted Global
Note or Regulation S Global Note. If the Holder of a Restricted Note
(other than a Global Note) wishes at any time to transfer all or any
portion of such Note to a Person who wishes to take delivery thereof in
the form of a beneficial interest in the Restricted Global Note or the
Regulation S Global Note, such transfer may be effected only in
accordance with the provisions of this clause (b)(iii) and clause
(b)(vii) below and subject to the Applicable Procedures. Upon receipt
by the Trustee, as Note Registrar, of (A) such Note as provided in
Section 3.06(a) and instructions directing that a beneficial interest
in the Restricted Global Note or Regulation S Global Note in a
specified principal amount not greater than the principal amount of
such Note be credited to a specified Agent Member's account, and (B) a
Restricted Notes Certificate, if the specified account is to be
credited with a beneficial interest in the Restricted Global Note, or a
Regulation S Certificate, if the specified account is to be credited
with a beneficial interest in the Regulation S Global Note, in the form
provided herein and duly executed by such Holder or his attorney duly
authorized in writing, then the Trustee, as Note Registrar but subject
to clause (b)(vii) below, shall cancel such Note (and issue a new Note
in respect of any untransferred portion thereof) as provided in Section
3.06(a) and increase the principal amount of the Restricted Global Note
or the Regulation S Global Note, as the case may be, by the specified
principal amount as provided in Section 3.05(c).
(iv) Regulation S Non-Global Note to Restricted
Global Note or Regulation S Global Note. If the Holder of a Regulation
S Note (other than a Global Note) wishes at any time to transfer all or
any portion of such Note to a Person who wishes to take delivery
thereof in the form of a beneficial interest in the Restricted Global
Note or the Regulation S Global Note, such transfer may be effected
only in accordance with this clause (b)(iv) and clause (b)(vii) below
and subject to the Applicable Procedures. Upon receipt by the Trustee,
as Note Registrar, of (A) such Note
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as provided in Section 3.06(a) and instructions directing that a
beneficial interest in the Restricted Global Note or Regulation S
Global Note in a specified principal amount not greater than the
principal amount of such Note be credited to a specified Agent Member's
account, and (B) if the transfer is to occur during the Restricted
Period and the specified account is to be credited with a beneficial
interest in the Restricted Global Note, a Restricted Notes Certificate
in the form provided herein and duly executed by such Holder or his
attorney duly authorized in writing, then the Trustee, as Note
Registrar but subject to clause (b) (vii) below, shall cancel such Note
(and issue a new Note in respect of any untransferred portion thereof)
as provided in Section 3.06(a) and increase the principal amount of the
Restricted Global Note or the Regulation S Global Note, as the case may
be, by the specified principal amount as provided in Section 3.05(c).
(v) Non-Global Note to Non-Global Note. A Note that
is not a Global Note may be transferred, in whole or in part, to a
Person who takes delivery in the form of another Note that is not a
Global Note as provided in Section 3.06(a); provided, however, that, if
the Note to be transferred in whole or in part is a Restricted Note, or
is a Regulation S Note and the transfer is to occur during the
Restricted Period, then the Trustee shall have received (A) a
Restricted Notes Certificate in the form provided herein and duly
executed by the transferor Holder or his attorney duly authorized in
writing, in which case the transferee Holder shall take delivery in the
form of a Restricted Note, or (B) a Regulation S Certificate, in the
form provided herein and duly executed by the transferor Holder or his
attorney duly authorized in writing, in which case the transferee
Holder shall take delivery in the form of a Regulation S Note (subject
in each case to Section 3.06(c)).
(vi) Exchanges between Global Note and Non-Global
Note. A beneficial interest in a Global Note may be exchanged for a
Note that is not a Global Note as provided in Section 3.05; provided,
however, that, if such interest is a beneficial interest in the
Restricted Global Note, or if such interest is a beneficial interest in
the Regulation S Global Note and such exchange is to occur during the
Restricted Period, then such interest shall be exchanged for a
Restricted Note (subject in each case to Section 3.06(c)). A Note that
is not a Global Note may be exchanged for a beneficial interest in a
Global Note only if (A) such exchange occurs in connection with a
transfer effected in accordance with clause (b)(iii) or clause (b)(iv)
above, or (B) such Note is a Regulation S Note and such exchange occurs
after the Restricted Period.
(vii) Regulation S Global Note to be Held Through
Euroclear or Cedel during Restricted Period. The
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Company shall use its best efforts to cause the Depositary to ensure
that, until the expiration of the Restricted Period, beneficial
interests in the Regulation S Global Note may be held only in or
through accounts maintained at the Depositary by Euroclear or Cedel (or
by Agent Members acting for the account thereof), and no Person shall
be entitled to effect any transfer or exchange that would result in any
such interest being held otherwise than in or through such an account;
provided, however, that this clause (b)(vii) shall not prohibit any
transfer or exchange of such an interest in accordance with clause
(b)(ii) or clause (b)(vi) above.
(c) Securities Act Legends. Rule 144A Notes and their
Successor Notes shall bear a Restricted Notes Legend, and Initial Regulation S
Notes and their Successor Notes shall bear a Regulation S Legend, subject to the
following:
(i) subject to the following clauses of this Section
3.06(c), a Note or any portion thereof which is exchanged, upon
transfer or otherwise, for a Global Note or any portion thereof shall
bear the Securities Act Legend borne by such Global Note while
represented thereby;
(ii) subject to the following clauses of this Section
3.06(c), a new Note which is not a Global Note and is issued in
exchange for another Note (including a Global Note) or any portion
thereof, upon transfer or otherwise, shall bear the Securities Act
Legend borne by such other Note; provided, however, that, if such new
Note is required pursuant to Section 3.06(b)(v) or 3.06(b)(vi) to be
issued in the form of a Restricted Note, it shall bear a Restricted
Notes Legend and, if such new Note is so required to be issued in the
form of a Regulation S Note, it shall bear a Regulation S Legend;
(iii) Registered Notes shall not bear a Securities
Act Legend;
(iv) after January 15, 2000, a new Note which does
not bear a Securities Act Legend may be issued in exchange for or in
lieu of a Note (other than a Global Note) or any portion thereof which
bears such a legend if the Trustee has received an Unrestricted Notes
Certificate, in the form provided herein and duly executed by the
Holder of such legended Note or his attorney duly authorized in
writing, and after such date and receipt of such certificate, the
Trustee shall authenticate and deliver such a new Note in exchange for
or in lieu of such other Note as provided in this Article Three;
(v) a new Note which does not bear a Securities Act
Legend may be issued in exchange for or in lieu of a Note (other than a
Global Note) or any portion thereof which
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bears such a legend if, in the Company's judgment, placing such a
legend upon such new Note is not necessary to ensure compliance with
the registration requirements of the Securities Act, and the Trustee,
at the direction of the Company, shall authenticate and deliver such a
new Note as provided in this Article Three; and
(vi) notwithstanding the foregoing provisions of this
Section 3.06(c), a Successor Note of a Note that does not bear a
particular form of Securities Act Legend shall not bear such form of
legend unless the Company has reasonable cause to believe that such
Successor Note is a "restricted security" within the meaning of Rule
144, in which case the Trustee, at the direction of the Company, shall
authenticate and deliver a new Note bearing a Restricted Notes Legend
in exchange for such Successor Note as provided in this Article Three.
Section 3.07. Mutilated, Destroyed, Lost and Stolen Notes.
If (a) any mutilated Note is surrendered to the Trustee, or
(b) the Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Note, and there is delivered to the Company
and the Trustee, such security or indemnity, in each case, as may be required by
them to save each of them harmless, then, in the absence of actual notice to the
Company or the Trustee that such Note has been acquired by a bona fide
purchaser, the Company and upon a Company Request the Trustee shall authenticate
and make available for delivery, in exchange for any such mutilated Note or in
lieu of any such destroyed, lost or stolen Note, a replacement Note of like
tenor and principal amount, bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Note has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a replacement Note, pay such Note.
Upon the issuance of any replacement Notes under this Section,
the Company may require the payment of a sum sufficient to pay all documentary,
stamp or similar issue or transfer taxes or other governmental charges that may
be imposed in relation thereto and any other expenses (including the fees and
expenses of the Trustee) connected therewith.
Every replacement Note issued pursuant to this Section 3.07 in
lieu of any destroyed, lost or stolen Note shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Note shall be at any time enforceable by anyone, and shall be
entitled to all benefits of this Indenture equally and proportionately with any
and all other Notes duly issued hereunder.
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The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Notes.
Section 3.08. CUSIP Numbers.
The Company in issuing the Notes may use "CUSIP" numbers (if
then generally in use), and the Company or the Trustee on behalf of the Company,
shall use CUSIP numbers in notices of exchange or notices of redemption as a
convenience to Holders; provided, however, that any such notice shall state that
no representation is made as to the correctness of such numbers either as
printed on the Notes or as contained in any notice of exchange and that reliance
may be placed only on the other identification numbers printed on the Notes;
provided, further, any such redemption or exchange shall not be affected by any
defect in or omission of such CUSIP numbers in any notice of exchange or notice
of redemption.
Section 3.09. Persons Deemed Owners.
Prior to due surrender of a Note for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name any Note is registered as the owner of such Note for
the purpose of receiving payment of principal of and premium, if any, on such
Note and for all other purposes whatsoever, whether or not such Note is overdue,
and neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
No holder of any beneficial interest in any Global Note held
on its behalf by a Depositary shall have any rights under this Indenture with
respect to such Global Note, and such Depositary may be treated by the Company,
the Trustee, and any agent of the Company or the Trustee as the owner of such
Global Note for all purposes whatsoever. None of the Company, the Trustee nor
any agent of the Company or the Company Trustee will have any responsibility or
liability for any aspect of the records relating to or payments made on account
of beneficial ownership interests of a Global Note or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests.
Section 3.10. Cancellation.
All Notes surrendered for payment, purchase, registration of
transfer or exchange shall be delivered to the Trustee and, if not already
cancelled, shall be promptly cancelled by it. The Company may at any time
deliver to the Trustee for cancellation any Notes previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and all Notes so delivered shall be promptly
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cancelled by the Trustee. No Notes shall be authenticated in lieu of or in
exchange for any Notes cancelled as provided in this Section, except as
expressly permitted by this Indenture. All cancelled Notes held by the Trustee
shall be destroyed and certification of their destruction delivered to the
Company, unless by a Company Order received by the Trustee prior to such
destruction, the Company shall direct that the cancelled Notes be returned to
it. The Trustee shall provide the Company a list of all Notes that have been
cancelled from time to time as requested by the Company.
ARTICLE FOUR
MISCELLANEOUS
SECTION 4.01. Counterparts.
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
ARTICLE FIVE
SATISFACTION AND DISCHARGE
SECTION 5.01. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of
further effect (except as to any surviving rights of registration of transfer or
exchange of Notes herein expressly provided for), and the Trustee, at the
expense of the Company, shall execute such instruments as may be requested by
the Company acknowledging satisfaction and discharge of this Indenture, when
(1) either
(A) all Notes theretofore authenticated and delivered (other
than Notes which have been destroyed, lost or stolen and which have
been replaced or paid as provided in Section 3.07) have been delivered
to the Trustee for cancellation; or
(B) all such Notes not theretofore delivered to the Trustee
for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year,
and the Company, in the case of (i) or (ii) above, has
deposited or caused to be deposited with the Trustee as
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trust funds in trust for the purpose an amount sufficient to pay and
discharge the entire indebtedness on such Notes not theretofore
delivered to the Trustee for cancellation (other than Notes which have
been destroyed, lost or stolen and which have been replaced or paid as
provided in Section 3.07), for the Accreted Value of the Notes to the
date of such deposit;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section 7.07 and,
if money shall have been deposited with the Trustee pursuant to subclause (B) of
Clause (1) of this Section, the obligations of the Trustee under Section 5.03
and the last paragraph of Section 11.03 shall survive.
SECTION 5.02. Defeasance Upon Deposit of Moneys or U.S.
Government Obligations.
At the Company's option indicated by notice to the Trustee,
either (a) the Company shall be deemed to have been Discharged (as defined
below) from its obligations with respect to the Notes or (b) the Company shall
cease to be under any obligation to comply with any term, provision or condition
set forth in Sections 11.10 through 11.14 at any time after the applicable
conditions set forth below have been satisfied:
(1) the Company shall have deposited or caused to be deposited
irrevocably with the Trustee as trust funds in trust, specifically pledged as
security for, and dedicated solely to, the benefit of the holders of the Notes
(A) money in an amount, or (B) U.S. Government Obligations which through the
payment of the interest thereon and principal in respect thereof in accordance
with their terms will provide, not later than one day before the due date of any
payment, money in an amount, or (C) a combination of (A) and (B), sufficient, in
the opinion (with respect to (B) and (C)) of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge the Accreted Value of the
outstanding Notes on the date such payment is due in accordance with the terms
of the Notes;
(2) the Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that holders of the Notes will not recognize income,
gain or loss for Federal income tax purposes as a result of the Company's
exercise of its option
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under this Section 5.02 and will be subject to Federal income tax on the same
amount and in the same manner and at the same times as would have been the case
if such option had not been exercised or deliver a ruling to that effect
received from or published by the Internal Revenue Service.
"Discharged" means, for purposes of this Section 5.02, that
the Company shall be deemed to have paid and discharged the entire indebtedness
represented by, and obligations under, the Notes and to have satisfied all the
obligations under this Indenture relating to the Notes and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging the same.
"U.S. Government Obligations" means securities that are (i)
direct obligations of the United States of America for payment of which its full
faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the timely payment of which is unconditionally guaranteed as a full
faith and credit obligation of the United States of America, which, in either
case under clauses (i) or (ii), are not callable or redeemable at the option of
the issuer thereof, and will also include a depository receipt issued by a bank
or trust company as custodian with respect to any such U.S. Government
Obligation or a specified payment of interest on or principal of any such U.S.
Government Obligation held by such custodian for the account of the holder of a
depository receipt, provided that (except as required by law) such custodian is
not authorized to make any deduction from the amount payable to the holder of
such depository receipt from any amount received by the custodian in respect of
the U.S. Government Obligation or the specific payment of interest on or
principal of the U.S. Government Obligation evidenced by such depository
receipt.
SECTION 5.03. Application of Trust Money.
Subject to the provisions of the last paragraph of Section
11.03, all money deposited with the Trustee pursuant to Sections 5.01 and 5.02
shall be held in trust and applied by it, in accordance with the provisions of
the Notes and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal for
whose payment such money has been deposited with the Trustee.
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ARTICLE SIX
REMEDIES OF THE TRUSTEE AND
HOLDERS ON EVENT OF DEFAULT
SECTION 6.01. Events of Default.
"Event of Default," wherever used herein with respect to
Notes, means any one of the following events (whatever the reason for such Event
of Default and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(1) default in the payment of the principal of and
premium, if any, on any Note at the Stated Maturity; or
(2) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture or any Note, and continuance
of such default or breach for a period of 90 days after there has been
given, by registered or certified mail, to the Company by the Trustee
or to the Company and the Trustee by the Holders of at least 25% in
principal amount of the Outstanding Notes a written notice specifying
such default or breach and requiring it to be remedied and stating that
such notice is a "Notice of Default" hereunder; or
(3) the entry by a court having jurisdiction in the premises
of (A) a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or (B) a
decree or order adjudging the Company a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company
under any applicable Federal or State law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order for relief or any such other
decree or order unstayed and in effect for a period of 60 consecutive
days; or
(4) the commencement by the Company of a voluntary case or
proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or of any other case or
proceeding to be adjudicated a bankrupt or insolvent, or the consent by
it to the entry of a decree or order for relief in respect of the
Company in an involuntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other
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similar law or to the commencement of any bankruptcy or insolvency case
or proceeding against it, or the filing by it of a petition or answer
or consent seeking reorganization or relief under any applicable
Federal or State law, or the consent by it to the filing of such
petition or to the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator or similar
official of the Company or of any substantial part of its property, or
the making by it of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts generally
as they become due, or the taking of corporate action by the Company in
furtherance of any such action.
SECTION 6.02. Acceleration of Maturity;
Rescission and Annulment.
If an Event of Default with respect to any Notes at the time
Outstanding occurs and is continuing, then in every such case the Trustee or the
Holders of not less than 25% in principal amount of the Outstanding Notes may
declare the Accreted Value of the Notes as of the date of such Event of Default
to be due and payable immediately by a notice in writing to the Company (and to
the Trustee if given by Holders), and upon any such declaration the Accreted
Value of the Notes shall become immediately due and payable.
At any time after such a declaration of acceleration with
respect to the Notes has been made and before a judgment or decree for payment
of the money due has been obtained by the Trustee as hereinafter in this Article
provided, the Holders of a majority in principal amount of the Outstanding
Notes, by written notice to the Company and the Trustee, may rescind and annul
such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay all sums paid or advanced by the Trustee hereunder
and the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel; and
(2) all Events of Default with respect to the Notes, other
than the nonpayment of the principal of Notes which have become due
solely by such declaration of acceleration, have been cured or waived
as provided in Section 6.13.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
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SECTION 6.03. Collection of Indebtedness and Suits
for Enforcement by Trustee.
The Company covenants that if a default is made in the payment
of the principal of or, premium, if any, on any Note at the Maturity thereof,
the Company, upon demand of the Trustee, will pay to it, for the benefit of the
Holders of such Notes, the whole amount then due and payable on such Notes for
principal, and premium, if any, and, to the extent that payment of such interest
shall be legally enforceable, interest on any overdue principal and premium, if
any, at the rate or rates prescribed therefor in such Notes, and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company or any other obligor upon such Notes and
collect the moneys adjudged or decreed to be payable in the manner provided by
law out of the property of the Company or any other obligor upon such Notes,
wherever situated.
If an Event of Default with respect to the Notes occurs and is
continuing, the Trustee may in its discretion proceed to protect and enforce its
rights and the rights of the Holders of the Notes by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and enforce any
such rights, whether for the specific enforcement of any covenant or agreement
in this Indenture or in aid of the exercise of any power granted herein, or to
enforce any other proper remedy.
SECTION 6.04. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relative to the Company or any other obligor upon the
Notes or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Notes shall
then be due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand on the Company
for the payment of overdue principal) shall be entitled and empowered, by
intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of
principal and premium, if any, owing and unpaid in respect of the Notes
and to file such other papers or documents and take such other actions,
including participating as a
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member, voting or otherwise, of any official committee of creditors
appointed in such matter, as may be necessary or advisable in order to
have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel) and of the Holders allowed in such judicial
proceeding, and
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claim and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 7.07.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the
Notes or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding except as aforesaid,
to vote for the election of a trustee in bankruptcy or similar person or to
participate as a member, voting or otherwise, on any committee of creditors.
SECTION 6.05. Trustee May Enforce Claims Without
Possession of Notes.
All rights of action and claims under this Indenture or the
Notes may be prosecuted and enforced by the Trustee without the possession of
any of the Notes or the production thereof in any proceeding relating thereto,
and any such proceeding instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Notes in respect of which such judgment
has been recovered.
SECTION 6.06. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article
shall be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of the
Accreted Value of the Notes as of the date of such Event of Default or premium,
if any, upon
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presentation of the Notes and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee
under Section 7.07;
SECOND: To the payment of the amounts then due and unpaid for
Accreted Value of the Notes as of the date of such Event of Default and
premium, if any, on the Notes in respect of which or for the benefit of
which such money has been collected, ratably, without preference or
priority of any kind, according to the amounts due and payable on such
Notes for Accreted Value of the principal as of the date of such Event
of Default or premium, if any; and
THIRD: To the payment of the remainder, if any, to the
Company, its successors or assigns, or to whomever may be so
lawfully entitled to receive the same, or as a court of
competent jurisdiction may direct.
SECTION 6.07. Limitation on Suits.
No Holder of any Note shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Notes;
(2) the Holders of not less than a majority in principal
amount of the Outstanding Notes shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Notes;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or
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to obtain or to seek to obtain priority or preference over any other of such
Holders or to enforce any right under this Indenture, except in the manner
herein provided and for the equal and ratable benefit of all of such Holders.
SECTION 6.08. Unconditional Right of Holders to
Receive Principal.
Notwithstanding any other provision in this Indenture, the
Holder of any Note shall have the right, which is absolute and unconditional, to
receive payment of the principal of and the right to institute suit for the
enforcement of any such payment or of such right to convert, and such rights
shall not be impaired without the consent of such Holder.
SECTION 6.09. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
SECTION 6.10. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Notes in the last paragraph
of Section 3.07, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
SECTION 6.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case may
be.
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SECTION 6.12. Control by Holders.
The Holders of a majority in principal amount of the
Outstanding Notes shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred on the Trustee, with respect to the Notes,
provided, however, that
(1) such direction shall not be in conflict with any rule of
law or with this Indenture,
(2) the Trustee shall not determine that the action so
directed would be unjustly prejudicial to the Holders of the Notes not
taking part in such direction, and
(3) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 6.13. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of
the Outstanding Notes may on behalf of the Holders of all the Notes waive any
past default hereunder and its consequences, except a default
(1) in the payment of the principal of or premium, if
any, on any Note, or
(2) in respect of a covenant or provision hereof which under
Article Ten cannot be modified or amended without the consent of the
Holder of each Outstanding Note affected.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
SECTION 6.14. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any
Note by his acceptance thereof shall be deemed to have agreed, that any court
may in its discretion require, in any suit for the enforcement of any right or
remedy under this Indenture, or in any suit against the Trustee for any action
taken, suffered or omitted by it as Trustee, the filing by any party litigant in
such suit of an undertaking to pay the costs of such suit, and that such court
may in its discretion assess reasonable costs, including reasonable attorneys'
fees, against any party litigant in such suit, having due regard to the merits
and good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of
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Holders, holding in the aggregate more than 10% in principal amount of the
Outstanding Notes, or to any suit instituted by any Holder for the enforcement
of the payment of the principal of any Note on or after the Stated Maturity.
SECTION 6.15. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension law
wherever enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit or advantage of
any such law and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and permit
the execution of every such power as though no such law had been enacted.
ARTICLE SEVEN
THE TRUSTEE
SECTION 7.01. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of
Default,
(1) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture; but in the case of any such certificates or opinions
which by any provision hereof are specifically required to be furnished
to the Trustee, the Trustee shall be under a duty to examine the same
to determine whether or not they conform to the requirements of this
Indenture but need not verify the accuracy of the contents thereof or
whether procedures specified by or pursuant to the provisions of this
Indenture have been followed in the preparation thereof.
(b) In case an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers vested in
it by this Indenture, and use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the circumstances in the
conduct of his own affairs.
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(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own wilful misconduct, except that
(1) this subsection shall not be construed to limit the effect
of Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders of a majority in principal amount of the
Outstanding Notes, determined as provided in Section 6.12, relating to
the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred
upon the Trustee, under this Indenture with respect to the Notes; and
(4) no provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers.
(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the liability
of or affording protection to the Trustee shall be subject to the provisions of
this Section.
SECTION 7.02. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder
with respect to the Notes, the Trustee shall transmit by first class mail to all
Holders of Notes, as their names and addresses appear in the Note Register,
notice of such default hereunder known to the Trustee, unless such default shall
have been cured or waived; provided, however, that, except in the case of a
default in the payment of the principal of (or premium, if any) on the Notes,
the Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee or a trust committee of directors or
Responsible Officers of the Trustee in good faith determine that the withholding
of such notice is in the interest of the Holders of Notes; and provided,
further, that in the case of any default of the character specified in Section
6.01(4) with respect to the Notes, no such notice to Holders shall be given
until at least 30 days after the occurrence thereof. For the purpose of this
Section, the term "default" means any event which is, or after
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notice or lapse of time or both would become, an Event of Default with respect
to Notes.
SECTION 7.03. Certain Rights of Trustee.
Subject to the provisions of Section 7.01:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been signed
or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officers'
Certificate;
(d) the Trustee may consult with counsel and the advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request
or direction of any of the Holders pursuant to this Indenture, unless
such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters
as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or
attorney;
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(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder;
(h) the Trustee shall not be deemed to have notice or
knowledge of any matter unless a Responsible Officer assigned to and
working in the Trustee's corporate trust department has actual
knowledge thereof or unless written notice thereof is received by the
Trustee at the Corporate Trust Office and such notice references the
Notes generally, the Company or this Indenture. Whenever reference is
made in this Indenture to an Event of Default, such reference shall,
insofar as determining any liability on the part of the Trustee is
concerned, be construed to refer only to an Event of Default of which
the Trustee is deemed to have knowledge in accordance with this
paragraph; and
(i) the permissive right of the Trustee to take or refrain
from taking any actions enumerated in this Indenture shall not be
construed as a duty.
SECTION 7.04. Not Responsible for Recitals
or Issuance of Notes.
The recitals contained herein and in the Notes, except the
Trustee's certificate of authentication, shall be taken as the statements of the
Company, and the Trustee assumes no responsibility for their correctness. The
Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Notes. The Trustee shall not be accountable for the use or
application by the Company of Notes or the proceeds thereof.
SECTION 7.05. May Hold Notes.
The Trustee, any Paying Agent, any Note Registrar or any other
agent of the Company, in its individual or any other capacity, may become the
owner or pledgee of Notes and, subject to Sections 7.08 and 7.13, may otherwise
deal with the Company with the same rights it would have if it were not Trustee,
Paying Agent, Note Registrar or such other agent.
SECTION 7.06. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any money received by it hereunder.
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SECTION 7.07. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or
bad faith on its part, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder,
including the costs and expenses, including reasonable attorneys' fees,
of defending itself against any claim or liability in connection with
the exercise or performance of any of its powers or duties hereunder.
As security for the performance of the obligations of the
Company under this Section the Trustee shall have a lien prior to the Notes upon
all property and funds held or collected by the Trustee, except funds held in
trust for the benefit of the Holders of Notes.
SECTION 7.08. Disqualification; Conflicting Interests.
The Trustee for the Notes shall be subject to the provisions
of Section 310(b) of the Trust Indenture Act during the period of time provided
for therein. Nothing herein shall prevent the Trustee from filing with the
Commission the application referred to in the second to last paragraph of
Section 310(b) of the Trust Indenture Act.
SECTION 7.09. Corporate Trustee Required; Eligibility.
There shall at all times be a corporate Trustee hereunder
which complies with the requirements of Section 310(a) of the Trust Indenture
Act, having a combined capital and surplus of at least $50,000,000, subject to
supervision or examination by Federal or State authority and having its
Corporate Trust Office in the Borough of Manhattan, The City of New York or in
Los Angeles, California. If such corporation publishes reports of condition at
least annually, pursuant to law or to the re-
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quirements of said supervising or examining authority, then for the purposes of
this Section the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
SECTION 7.10. Resignation and Removal; Appointment
of Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 7.11.
(b) The Trustee may resign at any time with respect to the
Notes by giving written notice thereof to the Company. If the instrument of
acceptance by a successor Trustee required by Section 7.11 shall not have been
delivered to the Trustee within 10 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Notes.
(c) The Trustee may be removed at any time with respect to the
Notes by the Holders of a majority in principal amount of the Outstanding Notes,
delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 7.08 after
written request therefor by the Company or by any Holder who has been a
bona fide Holder of a Note for at least six months, or
(2) the Trustee shall cease to be eligible under Section 7.09
and shall fail to resign after written request therefor by the Company
or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee, or (ii), subject to Section 6.14, any Holder who has been a bona fide
Holder of a Note for at least six months may, on behalf of himself and all
others similarly situated,
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petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause, the Company, by a Board Resolution, shall promptly appoint a
successor Trustee or Trustees with respect to the Notes and shall comply with
the applicable requirements of Section 7.11. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Notes shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Notes delivered to
the Company and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment in accordance with the
applicable requirements of Section 7.11, become the successor Trustee with
respect to the Notes and to that extent supersede the successor Trustee
appointed by the Company. If no successor Trustee with respect to the Notes
shall have been so appointed by the Company or the Holders and accepted
appointment in the manner required by Section 7.11, any Holder who has been a
bona fide Holder of a Note for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Notes.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Notes and each appointment of a
successor Trustee with respect to the Notes by mailing written notice of such
event to all Holders as their names and addresses appear in the Note Register.
Each notice shall include the name of the successor Trustee with respect to the
Notes and the address of its Corporate Trust Office.
SECTION 7.11. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor
Trustee with respect to the Notes, every such successor Trustee so appointed
shall execute, acknowledge and deliver to the Company and to the retiring
Trustee an instrument accepting such appointment, and thereupon the resignation
or removal of the retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee; but, on the
request of the Company or the successor Trustee, such retiring Trustee shall,
upon payment of its charges, execute and deliver an instrument transferring to
such successor Trustee all the rights, powers and trusts of the retiring Trustee
and shall duly assign, transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee hereunder.
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(b) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all rights, powers and trusts referred
to in paragraph (a) of this Section.
(c) No successor Trustee shall accept its appointment unless
at the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 7.12. Merger, Conversion, Consolidation
or Succession to Business.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all the corporate
trust business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Notes shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Notes so authenticated with the same effect
as if such successor Trustee had itself authenticated such Notes.
SECTION 7.13. Preferential Collection of Claims
Against Company.
(a) Subject to subsection (b) of this Section, if the Trustee
shall be or shall become a creditor, directly or indirectly, secured or
unsecured, of the Company within three months prior to a default, as defined in
subsection (c) of this Section, or subsequent to such a default, then, unless
and until such default shall be cured, the Trustee shall set apart and hold in a
special account for the benefit of the Trustee individually, the Holders of the
Notes and the holders of other indenture securities, as defined in subsection
(c) of this Section:
(1) an amount equal to any and all reductions in the amount
due and owing upon any claim as such creditor in respect of principal
or interest, effected after the beginning of such three-month period
and valid as against the Company and its other creditors, except any
such reduction resulting from the receipt or disposition of any
property described in paragraph (2) of this subsection, or from the
exercise of any right of set-off which the Trustee could have exercised
if a petition in bankruptcy had been filed by or against the Company
upon the date of such default; and
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(2) all property received by the Trustee in respect of any
claims as such creditor, either as security therefor, or in
satisfaction or composition thereof, or otherwise, after the beginning
of such three-month period, or an amount equal to the proceeds of any
such property, if disposed of, subject, however, to the rights, if any,
of the Company and its other creditors, in such property or such
proceeds.
Nothing herein contained, however, shall affect the right of the Trustee:
(A) to retain for its own account (i) payments made on account
of any such claim by any Person (other than the Company) who is liable
thereon, and (ii) the proceeds of the bona fide sale of any such claim
by the Trustee to a third Person, and (iii) distributions made in cash,
securities or other property in respect of claims filed against the
Company in bankruptcy or receivership or in proceedings for
reorganization pursuant to the Federal Bankruptcy Act or applicable
State law;
(B) to realize, for its own account, upon any property held by
it as security for any such claim, if such property was so held prior
to the beginning of such three-month period;
(C) to realize, for its own account, but only to the extent of
the claim hereinafter mentioned, upon any property held by it as
security for any such claim, if such claim was created after the
beginning of such three-month period and such property was received as
security therefor simultaneously with the creation thereof, and if the
Trustee shall sustain the burden of proving that at the time such
property was so received the Trustee had no reasonable cause to believe
that a default, as defined in subsection (c) of this Section, would
occur within three months; or
(D) to receive payment on any claim referred to in paragraph
(B) or (C), against the release of any property held as security for
such claim as provided in paragraph (B) or (C), as the case may be, to
the extent of the fair value of such property.
For the purposes of paragraphs (B), (C) and (D), property
substituted after the beginning of such three-month period for property held as
security at the time of such substitution shall, to the extent of the fair value
of the property released, have the same status as the property released, and, to
the extent that any claim referred to in any of such paragraphs is created in
renewal of or in substitution for or for the purpose of repaying or refunding
any pre-existing claim of the Trustee as such creditor, such claim shall have
the same status as such pre-existing claim.
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If the Trustee shall be required to account, the funds and
property held in such special account and the proceeds thereof shall be
apportioned among the Trustee, the Holders and the holders of other indenture
securities in such manner that the Trustee, the Holders and the holders of other
indenture securities realize, as a result of payments from such special account
and payments of dividends on claims filed against the Company in bankruptcy or
receivership or in proceedings for reorganization pursuant to the Federal
Bankruptcy Act or applicable State law, the same percentage of their respective
claims, figured before crediting to the claim of the Trustee anything on account
of the receipt by it from the Company of the funds and property in such special
account and before crediting to the respective claims of the Trustee and the
Holders and the holders of other indenture securities dividends on claims filed
against the Company in bankruptcy or receivership or in proceedings for
reorganization pursuant to the Federal Bankruptcy Act or applicable State law,
but after crediting thereon receipts on account of the indebtedness represented
by their respective claims from all sources other than from such dividends and
from the funds and property so held in such special account. As used in this
paragraph, with respect to any claim, the term "dividends" shall include any
distribution with respect to such claim, in bankruptcy or receivership or
proceedings for reorganization pursuant to the Federal Bankruptcy Act or
applicable State law, whether such distribution is made in cash, securities or
other property, but shall not include any such distribution with respect to the
secured portion, if any, of such claim. The court in which such bankruptcy,
receivership or proceeding for reorganization is pending shall have jurisdiction
(i) to apportion among the Trustee, the Holders and the holders of other
indenture securities, in accordance with the provisions of this paragraph, the
funds and property held in such special account and proceeds thereof, or (ii) in
lieu of such apportionment, in whole or in part, to give to the provisions of
this paragraph due consideration in determining the fairness of the
distributions to be made to the Trustee and the Holders and the holders of other
indenture securities with respect to their respective claims, in which event it
shall not be necessary to liquidate or to appraise the value of any securities
or other property held in such special account or as security for any such
claim, or to make a specific allocation of such distributions as between the
secured and unsecured portions of such claims, or otherwise to apply the
provisions of this paragraph as a mathematical formula.
Any Trustee which has resigned or been removed after the
beginning of such three-month period shall be subject to the provisions of this
subsection as though such resignation or removal had not occurred. If any
Trustee has resigned or been removed prior to the beginning of such three-month
period, it shall be subject to the provisions of this subsection if and only if
the following conditions exist:
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(i) the receipt of property or reduction of claim, which would
have given rise to the obligation to account, if such Trustee had
continued as Trustee, occurred after the beginning of such three-month
period; and
(ii) such receipt of property or reduction of claim occurred
within three months after such resignation or removal.
(b) There shall be excluded from the operation of subsection
(a) of this Section a creditor relationship arising from:
(1) the ownership or acquisition of securities issued under
any indenture, or any security or securities having a maturity of one
year or more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy court
of competent jurisdiction or by this Indenture, for the purpose of
preserving any property which shall at any time be subject to the lien
of this Indenture or of discharging tax liens or other prior liens or
encumbrances thereon, if notice of such advances and of the
circumstances surrounding the making thereof is given to the Holders at
the time and in the manner provided in this Indenture;
(3) disbursements made in the ordinary course of business in
the capacity of trustee under an indenture, transfer agent, registrar,
custodian, paying agent, fiscal agent or depositary, or other similar
capacity;
(4) an indebtedness created as a result of services rendered
or premises rented; or an indebtedness created as a result of goods or
securities sold in a cash transaction, as defined in subsection (c) of
this Section;
(5) the ownership of stock or of other securities of a
corporation organized under the provisions of Section 25(a) of the
Federal Reserve Act, as amended, which is directly or indirectly a
creditor of the Company; and
(6) the acquisition, ownership, acceptance or negotiation of
any drafts, bills of exchange, acceptances or obligations which fall
within the classification of self-liquidating paper, as defined in
subsection (c) of this Section.
(c) For the purposes of this Section only:
(1) the term "default" means any failure to make payment in
full of the principal of or interest on any of the Notes or upon the
other indenture securities when and as such principal or interest
becomes due and payable;
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(2) the term "other indenture securities" means securities
upon which the Company is an obligor outstanding under any other
indenture (i) under which the Trustee is also trustee, (ii) which
contains provisions substantially similar to the provisions of this
Section and (iii) under which a default exists at the time of the
apportionment of the funds and property held in such special account;
(3) the term "cash transaction" means any transaction in which
full payment for goods or securities sold is made within seven days
after delivery of the goods or securities in currency or in checks or
other orders drawn upon banks or bankers and payable upon demand;
(4) the term "self-liquidating paper" means any draft, bill of
exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Company for the purpose of financing the purchase,
processing, manufacturing, shipment, storage or sale of goods, wares or
merchandise and which is secured by documents evidencing title to,
possession of or a lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security, provided the security
is received by the Trustee simultaneously with the creation of the
creditor relationship with the Company arising from the making,
drawing, negotiating or incurring of the draft, bill of exchange,
acceptance or obligation;
(5) the term "Company" means any obligor upon the Notes at the
time in question; and
(6) the term "Federal Bankruptcy Act" means the Bankruptcy Act
or Title 11 of the United States Code.
ARTICLE EIGHT
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 8.01. Company to Furnish Trustee Names
and Addresses of Holders.
The Company will furnish or cause to be furnished to
the Trustee
(a) semi-annually, not later than June 1 and November
1; and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days
prior to the time such list is furnished;
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provided, however, that so long as the Trustee is the Note Registrar with
respect to the Notes no such lists need be furnished.
SECTION 8.02. Preservation of Information;
Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in the most
recent list furnished to the Trustee as provided in Section 8.01 and the names
and addresses of Holders received by the Trustee in its capacity as Note
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 8.01 upon receipt of a new list so furnished.
(b) If three or more Holders (herein referred to as
"applicants") apply in writing to the Trustee, and furnish to the Trustee
reasonable proof that each such applicant has owned a Note for a period of at
least six months preceding the date of such application, and such application
states that the applicants desire to communicate with other Holders with respect
to their rights under this Indenture or under the Notes and is accompanied by a
copy of the form of proxy or other communication which such applicants propose
to transmit to such other Holders, then the Trustee shall, within five business
days after the receipt of such application, at its election, either
(i) afford such applicants access to the information preserved
at the time by the Trustee in accordance with Section 8.02(a), or
(ii) inform such applicants as to the approximate number of Holders
whose names and addresses appear in the information preserved at the
time by the Trustee in accordance with Section 8.02(a), and as to the
approximate cost of mailing to such Holders the form of proxy or other
communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants
access to such information, the Trustee shall, upon the written request of such
applicants, mail to each Holder whose name and address appear in the information
preserved at the time by the Trustee in accordance with Section 8.02(a) a copy
of the form of proxy or other communication which is specified in such request,
with reasonable promptness after a tender to the Trustee of the material to be
mailed and of payment, or provision for the payment, of the reasonable expenses
of mailing, unless within five days after such tender the Trustee shall mail to
such applicants and file with the Commission, together with a copy of the
material to be mailed, a written statement to the effect that, in the opinion of
the Trustee, such mailing would be contrary to the best interests of the Holders
or would be in violation of applicable law. Such written statement shall specify
the basis of such opinion. If the Commission, after
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opportunity for a hearing upon the objections specified in the written statement
so filed, shall enter an order refusing to sustain any of such objections or if,
after the entry of an order sustaining one or more of such objections, the
Commission shall find, after notice and opportunity for hearing, that all the
objections so sustained have been met and shall enter an order so declaring, the
Trustee shall mail copies of such material to all such Holders with reasonable
promptness after the entry of such order and the renewal of such tender;
otherwise the Trustee shall be relieved of any obligation or duty to such
applicants respecting their application.
(c) Every Holder of a Note, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any agent of either of them shall be held responsible by reason of the
disclosure of any such information as to the names and addresses of the Holders
in accordance with Section 8.02(b), regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under Section 8.02(b).
SECTION 8.03. Reports by Trustee.
(a) Within 60 days after the first Reporting Date occurring
subsequent to the initial issuance of the Notes hereunder and within 60 days
after each Reporting Date occurring thereafter, the Trustee shall transmit by
mail to the Holders, as hereinafter provided, a brief report (but in no event
shall such report be transmitted more than twelve months after the date of the
initial issuance of the Notes in the case of the first such report and at stated
intervals of more than twelve months in the case of each subsequent report)
dated as of such Reporting Date with respect to any of the following events
which may have occurred during the twelve months preceding the date of the
report (but if no such event has occurred within such period, no report need be
transmitted):
(1) any change to its eligibility under Section 7.09 and its
qualifications under Section 7.08, or in lieu thereof, if to the best
of its knowledge it has continued to be eligible and qualified under
said Sections, a written statement to such effect;
(2) the creation of or any material change to a relationship
specified in Section 310(b)(1) through Section 310(b)(10) of the Trust
Indenture Act;
(3) the character and amount of any advances (and, if the
Trustee elects so to state, the circumstances surrounding the making
thereof) made by the Trustee (as such) which remain unpaid on the date
of such report, and for the reimbursement of which it claims or may
claim a lien or charge, prior to that of the Notes, on any property or
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funds held or collected by it as Trustee, except that the Trustee shall
not be required (but may elect) to report such advances if such
advances so remaining unpaid aggregate not more than 1/2 of 1% of the
principal amount of the Notes Outstanding for which it is Trustee on
the date of such report;
(4) any change to the amount, interest rate and maturity date
of all other indebtedness owing by the Company (or by any other obligor
on the Notes) to the Trustee in its individual capacity, on the date of
such report, with a brief description of any property held as
collateral security therefor, except an indebtedness based upon a
creditor relationship arising in any manner described in Section
7.13(b)(2), (3), (4) or (6);
(5) any change to the property and funds, if any, physically
in the possession of the Trustee as such on the date of such report;
and
(6) any action taken by the Trustee in the performance of its
duties hereunder which it has not previously reported and which in its
opinion materially affects the Notes, except action in respect of a
default, notice of which has been or is to be withheld by the Trustee
in accordance with Section 7.02.
(b) The Trustee shall transmit by mail to the Holders, as
hereinafter provided, a brief report with respect to the character and amount of
any advances (and if the Trustee elects so to state, the circumstances
surrounding the making thereof) made by the Trustee (as such) since the date of
the last report transmitted pursuant to subsection (a) of this Section (or if no
such report has yet been so transmitted, since the date of execution of this
instrument) for the reimbursement of which it claims or may claim a lien or
charge, prior to that of the Notes, on property or funds held or collected by it
as Trustee and which it has not previously reported pursuant to this subsection,
except that the Trustee shall not be required (but may elect) to report such
advances if such advances remaining unpaid at any time aggregate 10% or less of
the principal amount of the Notes Outstanding for which it is Trustee at such
time, such report to be transmitted within 90 days after such time.
(c) All reports required by this Section 8.03, and all other
reports or notices which are required by any other provision of this Indenture
to be transmitted in accordance with the provisions of this Section 8.03, shall
be transmitted by mail: (i) to all registered Holders, as their names and
addresses appear in the Note Register; (ii) to such Holders of such series as
have, within the two years preceding such transmission, filed their names and
addresses with the Trustee for that purpose; and (iii) except in the case of
reports pursuant to subsection (b) of this Section 8.03, to all Holders
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of such series whose names and addresses have been furnished to or received by
the Trustee pursuant to Section 8.01. A copy of each such report shall, at the
time of such transmission to Holders, be filed by the Trustee with each stock
exchange upon which any Notes are listed, with the Commission and with the
Company. The Company will notify the Trustee when any Notes are listed on any
stock exchange.
SECTION 8.04. Reports by Company.
The Company shall:
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies
of such portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) which the Company may
be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Exchange Act; or, if the Company is not required
to file information, documents or reports pursuant to either of said
Sections, then it shall file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by
the Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of
the Exchange Act in respect of a security listed and registered on a
national securities exchange as may be prescribed from time to time in
such rules and regulations;
(2) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports with
respect to compliance by the Company with the conditions and covenants
of this Indenture as may be required from time to time by such rules
and regulations; and
(3) transmit by mail to all Holders, as their names and
addresses appear in the Note Register, within 30 days after the filing
thereof with the Trustee, such summaries of any information, documents
and reports required to be filed by the Company pursuant to paragraphs
(1) and (2) of this Section as may be required by rules and regulations
prescribed from time to time by the Commission.
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ARTICLE NINE
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 9.01. Company May Consolidate, etc.
Only on Certain Terms.
The Company shall not consolidate with or merge into any other
corporation or convey, transfer or lease its properties and assets substantially
as an entirety to any Person, unless:
(1) in case the Company shall consolidate with or merge into
another corporation or convey, transfer or lease its properties and
assets substantially as an entirety to any Person, the corporation
formed by such consolidation or into which the Company is merged or the
Person which acquires by conveyance or transfer, or which leases, the
properties and assets of the Company substantially as an entirety shall
be a corporation organized and existing under the laws of the United
States of America, any State thereof or the District of Columbia and
shall expressly assume, by an indenture supplemental hereto, executed
and delivered to the Trustee, the due and punctual payment of the
principal of and premium, if any, on all the Notes and the performance
of every covenant of this Indenture on the part of the Company to be
performed or observed;
(2) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such transaction,
such supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such transaction
have been complied with;
(3) immediately after the transaction, no Event of
Default exists; and
(4) immediately after giving effect to such transaction on a
pro forma basis, as set forth in an Officers' Certificate, the Interest Expense
Ratio of the surviving or successor entity on a pro forma basis is at least 1:1;
provided that, if the Interest Expense Ratio of the Company immediately prior to
any such transaction is within the range set forth in Column A below, then the
pro forma Interest Expense Ratio of the surviving or successor entity shall be
at least equal to the percentage of the Interest Expense Ratio of the Company
set forth in Column B below:
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(A) (B)
--- ---
1.1111:1 to 1.4999:1 90%
1.5:1 and higher 75%
and provided further, that, if the pro forma Interest Expense Ratio of the
surviving or successor entity is 2.0:1 or more, the calculation in the preceding
proviso shall be inapplicable and such transaction shall be deemed to have
complied with the requirements of such provision.
SECTION 9.02. Successor Corporation Substituted.
Upon any consolidation by the Company with or merger by the
Company into any other corporation or any conveyance, transfer or lease of the
properties and assets of the Company substantially as an entirety in accordance
with Section 9.01, the successor corporation formed by such consolidation or
into which the Company is merged or to which such conveyance, transfer or lease
is made shall succeed to, and be substituted for, and may exercise every right
and power of, the Company under this Indenture with the same effect as if such
successor corporation had been named as the Company herein, and thereafter,
except in the case of a lease, the predecessor corporation shall be relieved of
all obligations and covenants under this Indenture and the Notes.
ARTICLE TEN
SUPPLEMENTAL INDENTURES
SECTION 10.01. Supplemental Indentures without
Consent of Holders.
Without the consent of any Holders, the Company, when
authorized by a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, for any of the
following purposes:
(1) to evidence the succession of another corporation to the
Company and the assumption by any such successor of the covenants of
the Company herein and in the Notes pursuant to Article Nine; or
(2) to add to the covenants of the Company for the benefit of
the Holders of the Notes or to surrender any right or power herein
conferred upon the Company; or
(3) to add any additional Events of Default; or
(4) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to permit or
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facilitate the issuance of Notes in bearer form, registrable or not
registrable as to principal, and with or without interest coupons, or
to provide for uncertificated Notes (so long as any
"registration-required obligation" within the meaning of section
163(f)(2) of the Internal Revenue Code of 1986, as amended, is in
registered form for purposes of such section); or
(5) to secure the Notes; or
(6) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Notes and to add
to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the requirements of
Section 7.11(b); or
(7) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein, or to make any other provision with respect to matters or
questions arising under this Indenture; provided, however, such action
shall not adversely affect the interests of the Holders of the Notes in
any material respect.
SECTION 10.02. Supplemental Indentures
with Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Notes affected by such supplemental
indenture, by Act of said Holders delivered to the Company and the Trustee, the
Company, when authorized by a Board Resolution, and the Trustee may enter into
an indenture or indentures supplemental hereto for the purpose of adding any
provision to or changing in any manner or eliminating any of the provisions of
this Indenture or of modifying in any manner the rights of the Holders of Notes
under this Indenture; provided, however, that no such supplemental indenture
shall, without the consent of the Holder of each Outstanding Note affected
thereby,
(1) change the Stated Maturity of the principal of any Note,
or reduce the principal amount thereof or reduce the amount of the
principal of the Note that would be due and payable upon a declaration
of acceleration of the Maturity thereof pursuant to Section 6.02, or
adversely affect any right of repayment at the option of the Holder of
any Note, or
(2) reduce the percentage in principal amount of the
Outstanding Notes, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is
required for any waiver (of compliance with certain provisions of this
Indenture or certain defaults
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hereunder and their consequences) provided for in this
Indenture, or
(3) modify any of the provisions of this Section, Section 6.13
or Section 11.07, except to increase any such percentage or to provide
that certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding Note
affected thereby.
It shall not be necessary for any Act of the Holders under
this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
SECTION 10.03. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be entitled
to receive, and shall be fully protected in relying upon, an Opinion of Counsel
stating that the execution of such supplemental indenture is authorized or
permitted by this Indenture. The Trustee in its sole discretion may, but shall
not be obligated to, enter into any such supplemental indenture which adversely
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
SECTION 10.04. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes; and
every Holder of Notes theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
SECTION 10.05. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 10.06. Reference in Notes to
Supplemental Indentures.
Notes authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Company, bear a notation in form approved by the Company as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Notes so modified as to conform, in the opinion of the Company, to any such
supplemental indenture may be prepared and executed
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by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Notes.
ARTICLE ELEVEN
COVENANTS
SECTION 11.01. Payment of Principal and Premium.
The Company covenants and agrees for the benefit of the
Holders of the Notes that it will duly and punctually pay the principal of and
premium, if any, on the Notes in accordance with the terms of the Notes and this
Indenture.
SECTION 11.02. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for the
Notes an office or agency where the Notes may be surrendered for registration of
transfer and exchange, where notices and demands to or upon the Company in
respect of the Notes and this Indenture may be served and where the Notes may be
presented for payment. The Company will give prompt written notice to the
Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one or more
other offices or agencies where the Notes may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in each
Place of Payment for Notes for such purposes. The Company will give prompt
written notice to the Trustee of any such designation or rescission and of any
change in the location of any such other office or agency.
SECTION 11.03. Money for Notes Payments
to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent
with respect to the Notes, it will, on or before the Maturity of the Notes, set
aside, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal and premium, if any, until such
sums shall be paid to such Persons or otherwise disposed of as herein provided
and will promptly notify the Trustee of its action or failure so to act or of
any failure by the Company (or by any other obligor
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on the Notes) to make any payment of the principal of the Notes
when the same shall be due and payable.
Whenever the Company shall have one or more Paying Agents, it
will, at or prior to the opening of business on the date of the Stated Maturity
of the Notes, deposit with a Paying Agent a sum sufficient to pay the Notes such
sum to be held in trust for the benefit of the Persons entitled to such
principal and (unless such Paying Agent is the Trustee) the Company will
promptly notify the Trustee of its action or failure so to act.
If the Company shall appoint a Paying Agent other than the
Trustee for any Notes, it will cause such Paying Agent to execute and deliver to
the Trustee an instrument in which such Paying Agent shall agree with the
Trustee, subject to the provisions of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal
of the Notes in trust for the benefit of the Persons entitled thereto
until such sums shall be paid to such Persons or otherwise disposed of
as herein provided;
(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Notes) in the making of any payment of the
Notes; and
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge with respect to any Notes hereunder or for any other
reason, pay or by Company Order direct any Paying Agent to pay, to the Trustee
all sums held in trust for any Notes or such Paying Agent, such sums to be held
by the Trustee upon the same trusts as those upon which such sums were held by
the Company or such Paying Agent; and, upon such payment by any Paying Agent to
the Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company in trust for the payment of the principal of any Note
and remaining unclaimed for two years after such principal has become due and
payable shall be paid to the Company on Company Request subject to applicable
abandoned property and escheat law, or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Note shall thereafter, as an
unsecured general creditor, look only to the Company for payment thereof, and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent,
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before being required to make any such repayment, may at the expense of the
Company cause to be published once a week for two consecutive weeks (in each
case on any day of the week) in an Authorized Newspaper notice that such money
remains unclaimed and that, after a date specified therein, which shall not be
less than 30 days from the date of such publication, any unclaimed balance of
such money then remaining will be repaid to the Company.
SECTION 11.04. Corporate Existence.
Subject to Article Nine, the Company will do or cause to be
done all things necessary to preserve and keep in full force and effect its
corporate existence.
SECTION 11.05. Payment of Taxes and Other Claims.
The Company will, and will cause each Subsidiary to, pay or
discharge or cause to be paid or discharged, before the same shall become
delinquent, (1) all taxes, assessments and governmental charges levied or
imposed upon the Company or any Subsidiary or upon the income, profits or
property of the Company or any Subsidiary, and (2) all lawful claims for labor,
materials and supplies which, if unpaid, might by law become a lien upon the
property of the Company or any Subsidiary; provided, however, that neither the
Company nor any Subsidiary shall be required to pay or discharge or cause to be
paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings.
SECTION 11.06. Maintenance of Properties.
The Company will cause all its properties used or useful in
the conduct of its business to be maintained and kept in reasonably good
condition, repair and working order and supplied with all necessary equipment
and will cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the Company may
be necessary so that the business carried on in connection therewith may be
properly conducted at all times; provided, however, that nothing in this Section
shall prevent the Company from discontinuing the operation or maintenance of any
of its properties if such discontinuance is, in the judgment of the Company,
desirable in the conduct of its business and not disadvantageous in any material
respect to the Holders of the Notes.
SECTION 11.07. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with
any term, provision or condition set forth in Sections 11.04, 11.05, 11.06,
11.10, 11.11, 11.12, 11.13 and 11.14 with respect to the Notes, if before the
time for the
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compliance the Holders of at least 66 2/3% in principal amount of the
Outstanding Notes shall, by Act of such Holders, either waive the compliance in
such instance or generally waive compliance with such term, provision or
condition, but no such waiver shall extend to or affect such term, provision or
condition except to the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Company and the duties of the Trustee
in respect of any such term, provision or condition shall remain in full force
and effect.
SECTION 11.08. Statement by Officers as to Default.
The Company will, within 90 days after the close of each
fiscal year, commencing with the first fiscal year following the issuance of
Notes under this Indenture, file with the Trustee a certificate of the principal
executive officer, the principal financial officer or the principal accounting
officer of the Company, covering the period from the date of issuance of such
Notes to the end of the fiscal year in which such Notes were issued, in the case
of the first such certificate, and covering the preceding fiscal year in the
case of each subsequent certificate, and stating whether or not, to the
knowledge of the signer, the Company has complied with all conditions and
covenants on its part contained in this Indenture, and, if the signer has
obtained knowledge of any default by the Company in the performance, observance
or fulfillment of any such condition or covenant, specifying each such default
and the nature thereof. For the purpose of this Section 11.08, compliance shall
be determined without regard to any grace period or requirement of notice
provided pursuant to the terms of this Indenture.
SECTION 11.09. Further Assurances.
From time to time whenever reasonably demanded by the Trustee,
the Company will make, execute and deliver or cause to be made, executed and
delivered any and all such further and other instruments and assurances as may
be reasonably necessary or proper to carry out the intention or facilitate the
performance of the terms of this Indenture.
SECTION 11.10. Restrictions on Mergers, Sales and
Consolidations.
The Company will not consolidate or merge with or into, or
sell, lease, convey or otherwise dispose of all or substantially all of its
property to another corporation, Person or entity except as permitted in Article
Nine.
SECTION 11.11. Restrictions on Dividends and Other
Payments.
Except as set forth below the Company shall not, directly or
indirectly:
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(1) declare or pay any dividend on, or make any distribution
to the holders (as such) of, any shares of its Capital Stock (other than
dividends or distributions payable in Capital Stock (other than Redeemable
Stock) of the Company);
(2) purchase, redeem or otherwise acquire or retire for value
any Capital Stock of the Company, any Subsidiary or other Affiliate of the
Company (other than any such Capital Stock owned by the Company or any directly
or indirectly wholly-owned Subsidiary of the Company);
(3) permit any Subsidiary to declare or pay any dividend on,
or make any distribution to the holders (as such) of, any shares of its Capital
Stock except to the Company or a directly or indirectly wholly-owned Subsidiary
of the Company (other than dividends or distributions payable in Capital Stock
(other than Redeemable Stock) of such Subsidiary or the Company);
(4) permit any Subsidiary to purchase, redeem or otherwise
acquire or retire for value any Capital Stock of such Subsidiary, the Company or
any Affiliate of either of them (other than any such Capital Stock owned by the
Company or any directly or indirectly wholly-owned Subsidiary of the Company);
or
(5) make an Advance or permit any Subsidiary to make an
Advance (such dividends, distributions, purchases, redemptions, other
acquisitions, retirements or Advances referred to in (1) through (5) above being
collectively referred to as "Restricted Payments"; provided, however, that
Restricted Payments shall not include any amounts paid for the acquisition from
a Person not an Affiliate of the Company of any Capital Stock of a Subsidiary or
other Affiliate of the Company);
if at the time of such Restricted Payment:
(i) an Event of Default shall have occurred and be continuing,
or shall occur as a consequence thereof, or
(ii) if upon giving effect to such payment the aggregate
amount expended for all such Restricted Payments subsequent to November 21, 1988
shall exceed the sum of (a) the excess of (x) the aggregate of Consolidated Cash
Flow Available for Interest Expense of the Company accrued during all fiscal
quarters ended subsequent to May 31, 1988 over (Y) the product of (1) 1.2 and
(2) the aggregate of Consolidated Interest Expense of the Company accrued during
all fiscal quarters ended subsequent to May 31, 1988, (b) the aggregate net
proceeds, including cash and the fair market value of property other than cash,
received by the Company from the issue or sale, after November 21, 1988, of
Capital Stock of the Company (other than Redeemable Stock), including upon the
exercise of any warrant, other than in connection with the conversion or
exchange of any Indebtedness or Capital Stock, and (c) the aggregate net
proceeds received by the Company, subsequent to November 21, 1988, from the
issue or sale
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of any debt securities or Redeemable Stock of the Company, if, at the time the
determination is made, such debt securities or Redeemable Stock, as the case may
be, has been converted into or exchanged for Capital Stock of the Company (other
than Redeemable Stock).
For purposes of any calculation pursuant to the preceding
sentence which is required to be made within 60 days after the declaration of a
dividend by the Company or any Subsidiary, such dividend shall be deemed to be
paid at the date of declaration, and the subsequent payment of such dividend
during such 60-day period shall not be treated as an additional Restricted
Payment. For purposes of determining under clause (ii) above the amount expended
for Restricted Payments, property other than cash shall be valued at its fair
market value.
Notwithstanding the foregoing, the provisions of this Section
11.11 will not prevent (i) the payment of an amount not to exceed $150,000,000
in the aggregate to repurchase shares of the common stock of the Company, (ii)
the payment of any dividend within 60 days after the date of declaration when
the payment would have complied with the foregoing provisions on the date of
declaration or (iii) the purchase, redemption, acquisition or other retirement
of any shares of the Company's Capital Stock by exchange for, or out of the
proceeds of the substantially concurrent sale of, other shares of its Capital
Stock (other than Redeemable Stock).
SECTION 11.12. Limitation on Transactions with Affiliates.
Neither the Company nor any Subsidiary may engage in any
transaction with an Affiliate of the Company (other than a Restricted
Subsidiary), or any director, officer or employee of the Company or any
Subsidiary, on terms less favorable to the Company or such Subsidiary than would
be obtainable at the time in comparable transactions of the Company or such
Subsidiary with Persons which are not Affiliates; provided, however, that
nothing in this Section 11.12 shall prevent (i) the Company from making any
payments permitted pursuant to the terms of Section 11.11 or (ii) the Company or
any Subsidiary from entering into any transaction permitted pursuant to the
terms of Sections 9.01, 11.10 and 11.14.
SECTION 11.13. Limitation on Indebtedness.
The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, create, incur, issue, assume or become
liable for, contingently or otherwise (collectively an "incurrence"), any
Indebtedness (other than the Notes) unless, after giving effect to such
incurrence on a pro forma basis, Indebtedness of the Company and its Restricted
Subsidiaries, on a consolidated basis, shall not be more than nine times Pro
Forma Operating Cash Flow for the four fiscal quarters immediately preceding
such incurrence. For purposes of
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this Section 11.13, an incurrence will not be deemed to occur when any Person
becomes a Subsidiary by merger, consolidation, acquisition or otherwise.
Notwithstanding the above, neither the Company nor any Restricted Subsidiary
shall be prohibited from incurring (i) Indebtedness incurred in connection with
Currency Agreements or Interest Swap Obligations, (ii) Indebtedness which is
subordinated in right of payment to the Notes and which has an average life to
maturity longer than that of the Notes and (iii) Indebtedness resulting in the
extension, refunding or renewal of any Indebtedness existing prior to such
extension, renewal or refunding which does not result in an increase in the
principal amount of such existing Indebtedness then outstanding.
SECTION 11.14. Investments in Affiliates and
Subsidiaries.
(a) After January 8, 1998, the Company shall not, nor shall
the Company allow any Restricted Subsidiary to, invest in any Affiliate (other
than the Company or a Restricted Subsidiary) or in any Unrestricted Subsidiary
other than by way of Permitted Investments.
(b) After January 8, 1998, neither the Company nor any
Restricted Subsidiary shall guarantee or secure, pledge, encumber or otherwise
become directly or indirectly liable for investments in or borrowings by
Unrestricted Subsidiaries, except for Permitted Investments and except that the
Capital Stock of an Unrestricted Subsidiary may be pledged to secure borrowings
by such Unrestricted Subsidiary or other Unrestricted Subsidiaries.
ARTICLE TWELVE
RIGHT TO REQUIRE REPURCHASE OF THE NOTES
SECTION 12.01. Right to Require Repurchase of Notes.
(a) In the event of the occurrence of a Triggering Event, each
holder of Notes shall have the right, at such holder's option, to sell to the
Company, and the Company hereby agrees to purchase, all or any part of such
holder's Notes on the date (the "Repurchase Date") that is 115 days after a
Triggering Event Date, for an amount equal to 101% of their Accreted Value as of
the date of such purchase.
(b) The Company shall mail to all holders of record of the
Notes, within 30 days after a Triggering Event Date, a notice of the occurrence
of such Triggering Event, specifying the date by which a holder of Notes must
notify the Trustee of such holder's intention to exercise the repurchase right
and describing the procedure which such holder must follow to exercise such
right. The Company shall deliver a copy of such notice to the Trustee on the
same such date and shall cause a
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copy of such notice to be published in an Authorized Newspaper. To exercise the
repurchase right, the holder of a Note must deliver, on or before the ninetieth
day after a Triggering Event Date, written notice (which shall be irrevocable)
(such notice, as to any holder of Notes, its "Repurchase Notice") to the Trustee
of the holder's exercise of such right, together with the Note or Notes with
respect to which the right is being exercised, duly endorsed for transfer. Not
later than the ninety-fifth day after such Triggering Event Date, the Trustee
shall notify the Company of the aggregate principal amount of Notes or portions
thereof with respect to which it has received Repurchase Notices and the
certificate numbers and the names of the holders of the Notes tendered for
repurchase. No later than the date that is 110 days after a Triggering Event
Date, the Company shall deposit with the Trustee money in an amount sufficient
to repurchase on the Repurchase Date all such Notes or portions thereof. The
Company shall not be required pursuant to Section 3.06 to exchange or register
the transfer of any Note or portion thereof with respect to which the holder
thereof has delivered a Repurchase Notice.
(c) The Company shall take all reasonable action necessary to
enable each of the Rating Agencies to provide a rating for the Notes. If,
however, either or both of the Rating Agencies shall not make such a rating
available, a nationally recognized investment banking firm selected by the
Company shall select a nationally recognized securities rating agency or two
nationally recognized securities rating agencies to act as substitute rating
agency or substitute rating agencies, as the case may be.
ARTICLE THIRTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 13.01. Exemption from Individual Liability.
No recourse under or upon any obligation, covenant or
agreement of this Indenture, or of any Note, or for any claim based thereon or
otherwise in respect thereof, shall be had against any incorporator,
stockholder, officer or director, as such, past, present or future, of the
Company or of any successor corporation, either directly or through the Company,
whether by virtue of any constitution, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise; it being expressly
understood that this Indenture and the obligations issued hereunder are solely
corporate obligations of the Company, and that no such personal liability
whatever shall attach to, or is or shall be incurred by, the incorporators,
stockholders, officers or directors, as such, of the Company or of any successor
corporation, or any of them, because of the creation of the indebtedness hereby
authorized, or under or by reason of the
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obligations, covenants or agreements contained in this Indenture or in any of
the Notes or implied therefrom; and that any and all such personal liability,
either at common law or in equity or by constitution or statute, of, and any and
all such rights and claims against, every such incorporator, stockholder,
officer or director, as such, because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations, covenants or agreements
contained in this Indenture or in any of the Notes or implied therefrom, are
hereby expressly waived and released as a condition of, and as a consideration
for, the execution of this Indenture and the issuance of the Notes.
ARTICLE FOURTEEN
MEETINGS OF HOLDERS OF Notes
SECTION 14.01. Purposes of Meetings.
A meeting of Holders of Notes may be called at any time and
from time to time pursuant to the provisions of this Article for any of the
following purposes:
(1) to give any notice to the Company or to the Trustee, or to
give any directions to the Trustee, or to waive any default hereunder
and its consequences, or to take any other action authorized to be
taken by the Holders of Notes pursuant to any of the provisions of
Article Six;
(2) to remove the Trustee and appoint a successor Trustee
pursuant to the provisions of Article Seven;
(3) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 10.02; or
(4) to take any other action authorized to be taken by or on
behalf of the Holders of any specified percentage in aggregate
principal amount of the Notes under any other provision of this
Indenture or under applicable law.
SECTION 14.02. Call of Meetings by Trustee.
The Trustee may at any time call a meeting of Holders of Notes
to take any action specified in Section 14.01, to be held at such time and at
such place in the Borough of Manhattan, The City of New York, or such other
location as the Trustee shall determine. Notice of every meeting of the Holders
of Notes, setting forth the time and place of such meeting and in general terms
the action proposed to be taken at such meeting, shall be given to all Holders
of Notes that may be affected by the action proposed to be taken at such meeting
by publication at least twice in an Authorized Newspaper prior to the date fixed
for the meeting, the first publication to be not less than 20 nor more
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than 180 days prior to the date fixed for the meeting, and the last publication
to be not more than five days prior to the date fixed for the meeting, or such
notice may be given to Holders by mailing the same by first class mail, postage
prepaid, to the Holders of Notes at the time Outstanding, at their addresses as
they shall appear in the Note Register, not less than 20 nor more than 60 days
prior to the date fixed for the meeting. Failure to receive such notice or any
defect therein shall in no case affect the validity of any action taken at such
meeting. Any meeting of Holders of Notes shall be valid without notice if the
Holders of all such Notes Outstanding, the Company and the Trustee are present
in person or by proxy or shall have waived notice thereof before or after the
meeting.
SECTION 14.03. Call of Meetings by Company or Holders.
In case at any time the Company, by Board Resolution, or the
Holders of at least 10% in aggregate principal amount of the Notes then
Outstanding shall have requested the Trustee to call a meeting of Holders of
Notes to take any action authorized in Section 14.01 by written request setting
forth in reasonable detail the action proposed to be taken at the meeting, and
the Trustee shall not have mailed or made the first publication of the notice of
such meeting within 30 days after receipt of such request, then the Company or
the Holders in the amount above specified may determine the time and the place
in the Borough of Manhattan, The City of New York for such meeting and may call
such meeting by mailing or publishing notice thereof as provided in Section
14.02.
SECTION 14.04. Qualification for Voting.
To be entitled to vote at any meeting of Holders a Person
shall (a) be a Holder of one or more Notes, or (b) be a Person appointed by an
instrument in writing as proxy by the Holder of one or more such Notes. The
right of Holders to have their votes counted shall be subject to the proviso in
the definition of "Outstanding" in Section 1.01. The only Persons who shall be
entitled to be present or to speak at any meeting of Holders shall be the
Persons entitled to vote at such meeting and their counsel, any representatives
of the Trustee and its counsel and any representatives of the Company and its
counsel.
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SECTION 14.05. Quorum; Adjourned Meetings.
At any meeting of Holders, the presence of Persons holding or
representing Notes in an aggregate principal amount sufficient to take action on
the business for the transaction of which such meeting was called shall be
necessary to constitute a quorum. No business shall be transacted in the absence
of a quorum unless a quorum is represented when the meeting is called to order.
In the absence of a quorum within 30 minutes of the time appointed for any such
meeting, the meeting shall, if convened at the request of the Holders of Notes
(as provided in Section 14.03), be dissolved. In any other case the Persons
holding or representing a majority in aggregate principal amount of the Notes
represented at the meeting may adjourn such a meeting for a period of not less
than 10 days with the same effect, for all intents and purposes, as though a
quorum had been present. In the absence of a quorum at any such adjourned
meeting, such adjourned meeting may be similarly further adjourned for a period
of not less than 10 days. Notice of the reconvening of any adjourned meeting
shall be given as provided in Section 14.02 except that, in the case of
publication, such notice need be published only once but must be given not less
than five days prior to the date on which the meeting is scheduled to be
reconvened, and in the case of mailing, such notice may be mailed not less than
five days prior to such date.
Any Holder of a Note who has executed an instrument in writing
complying with the provisions of Section 1.04 shall be deemed to be present for
the purposes of determining a quorum and be deemed to have voted; provided,
however, that such Holder shall be considered as present or voting only with
respect to the matters covered by such instrument in writing.
Any resolution passed or decision taken at any meeting of the
Holders of Notes duly held in accordance with this Section shall be binding on
all Holders of Notes whether or not present or represented at the meeting.
SECTION 14.06. Regulations.
Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Holders of Notes, in regard to proof of the holding of Notes and of
the appointment of proxies, and in regard to the appointment and duties of
inspectors of votes, the submission and examination of proxies, certificates and
other evidence of the right to vote, and such other matters concerning the
conduct of the meeting as it shall think fit.
The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Company or by Holders of Notes as provided in Section 14.03, in which case
the Company or the
-88-
<PAGE>
<PAGE>
Holders of Notes calling the meeting, as the case may be, shall in like manner
appoint a temporary chairman. A permanent chairman and a permanent secretary of
the meeting shall be elected by vote of the Holders of a majority in principal
amount of the Notes represented at the meeting.
At any meeting each Holder of a Note or proxy therefor shall
be entitled to one vote for each $1,000 principal amount such principal amount
to be determined as provided in the definition of "Outstanding") of Notes held
or represented by him; provided, however, that no vote shall be cast or counted
at any meeting in respect of any Note challenged as not Outstanding and ruled by
the chairman of the meeting to be not Outstanding. The chairman of the meeting
shall have no right to vote except as a Holder of Notes or proxy therefor. Any
meeting of Holders of Notes duly called pursuant to the provisions of Section
14.02 or 14.03 at which a quorum is present may be adjourned from time to time,
and the meeting may be held as so adjourned without further notice.
SECTION 14.07. Voting Procedure.
The vote upon any resolution submitted to any meeting of
Holders shall be by written ballot on which shall be subscribed the signatures
of the Holders of Notes entitled to vote at such meeting, or proxies therefor,
and on which shall be inscribed an identifying number or numbers or to which
shall be attached a list of identifying numbers of the Notes so held or
represented by them. The permanent chairman of the meeting shall appoint two
inspectors of votes who shall count all votes cast at the meeting for or against
any resolution and who shall make and file with the secretary of the meeting
their verified written reports in duplicate of all votes cast at the meeting. A
record in duplicate of the proceedings of each meeting of Holders of Notes shall
be prepared by the secretary of the meeting and there shall be attached to said
record the original reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more Persons having knowledge of the
facts setting forth a copy of the notice of the meeting and showing that said
notice was mailed or published as provided in Section 14.02 and, if applicable,
Section 14.05. The record shall be signed and verified by the permanent chairman
and secretary of the meeting and one of the duplicates shall be delivered to the
Company and the other to the Trustee to be preserved by the Trustee, the latter
to have attached thereto the ballots voted at the meeting.
Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
SECTION 14.08. Written Consent in Lieu of Meetings.
The written authorization or consent by the Holders of
the requisite percentage in aggregate principal amount of Notes
-89-
<PAGE>
<PAGE>
herein provided, entitled to vote at any such meeting, evidenced as provided in
Section 1.04 and filed with the Trustee, shall be effective in lieu of a meeting
of the Holders of Notes with respect to any matter provided for in this Article
Fourteen.
SECTION 14.09. No Delay of Rights by Meeting.
Nothing in this Article contained shall be deemed or construed
to authorize or permit, by reason of any call of a meeting of Holders of Notes
of any or all series or any rights expressly or impliedly conferred hereunder to
make such call, any hindrance or delay in the exercise of any right or rights
conferred upon or reserved to the Trustee or the Holders of Notes of any or all
such series under any provisions of this Indenture or the Notes.
First Trust of California, National Association hereby accepts
the trusts in this Indenture, upon the terms and conditions hereinabove set
forth.
-90-
<PAGE>
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
[CORPORATE SEAL]
Attest: CENTURY COMMUNICATIONS CORP.
/S/ David Z. Rosensweig By /S/ Clifford A. Bail
- -------------------------- -----------------------------
Secretary
[CORPORATE SEAL]
Attest: FIRST TRUST OF CALIFORNIA, National
Association, as Trustee
/S/ M. Bator By /S/ Tamara Mawn
- -------------------------- -----------------------------
<PAGE>
<PAGE>
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the ____ day of January, 1998, before me personally came
Clifford A. Bail, to me known, who, being by me duly sworn, did depose and say
that he is Vice President, Legal Affairs and Corporate Counsel of CENTURY
COMMUNICATIONS CORP., one of the corporations described in and which executed
the foregoing instrument; that he knows the seal of said corporation; that the
seal affixed to said instrument is such corporate seal; that it was so affixed
by authority of the Board of Directors of said corporation; and that he signed
his name thereto by like authority.
[NOTARIAL SEAL]
/s/ AVROHOM J. KESS
----------------------------
Notary Public
STATE OF CALIFORNIA )
: ss.:
COUNTY OF LOS ANGELES )
On the ____ day of January, 1998, before me personally came
Tamara Mawn, to me known, who, being by me duly sworn, did depose and say that
she is Vice President of FIRST TRUST OF CALIFORNIA, NATIONAL ASSOCIATION, one of
the corporations described in and which executed the foregoing instrument; that
she knows the seal of said corporation; that the seal affixed to said instrument
is such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation; and that she signed her name thereto by like
authority.
[NOTARIAL SEAL]
/s/ GRACE YANG
----------------------------
Notary Public
<PAGE>
<PAGE>
Annex A -- Form of
Regulation S Notes
Certificate
REGULATION S NOTES CERTIFICATE
(For transfers pursuant to 'SS' 3.06(b) (i), (iii) and (v) of the Indenture)
First Trust of California, National Association
as Trustee
550 South Hope Street, Suite 500
Los Angeles, CA 90071
Re: Senior Discount Notes due January 15, 2008 of Century
Communications Corp. (the "Notes")
Reference is made to the Indenture dated as of January 15,
1998 (the "Indenture") among Century Communications Corp. (the "Company") and
First Trust of California, National Association, as Trustee. Terms used herein
and defined in the Indenture or in Regulation S or Rule 144 under the U.S.
Securities Act of 1933 (the "Securities Act") are used herein as so defined.
This certificate relates to U.S. $_______________ principal
amount of Notes at Maturity, which are evidenced by the following certificate(s)
(the "Specified Notes"):
CUSIP No(s).
CERTIFICATE No(s).______________________
The person in whose name this certificate is executed below
(the "Undersigned") hereby certifies that either (i) it is the sole beneficial
owner of the Specified Notes or (ii) it is acting on behalf of all the
beneficial owners of the Specified Notes and is duly authorized by them to do
so. Such beneficial owner or owners are referred to herein collectively as the
"Owner". If the Specified Notes are represented by a Global Note, they are held
through the Depositary or an Agent Member in the name of the Undersigned, as or
on behalf of the Owner. If the Specified Notes are not represented by a Global
Note, they are registered in the name of the Undersigned, as or on behalf of the
Owner.
The Owner has requested that the Specified Notes be
transferred to a person (the "Transferee") who will take delivery in the form of
a Regulation S Note. In connection with such transfer, the Owner hereby
certifies that, unless such transfer is being effected pursuant to an effective
registration statement under the Securities Act, it is being effected in
accordance with Rule 904 or Rule 144 under the Securities Act and with all
applicable securities laws of the states of the United States and other
jurisdictions. Accordingly, the Owner hereby further certifies as follows:
(1) Rule 904 Transfers. If the transfer is being effected in
accordance with Rule 904:
(A) the Owner is not a distributor of the Notes, an
affiliate of the Company or any such distributor or a person acting on
behalf of any of the foregoing;
A-1
<PAGE>
<PAGE>
(B) the offer of the Specified Notes was not made to
a person in the United States;
(C) either:
(i) at the time the buy order was
originated, the Transferee was outside the
United States or the Owner and any person
acting on its behalf reasonably believed
that the Transferee was outside the United
States, or
(ii) the transaction is being executed
in, on or through the facilities of the
Eurobond market, as regulated by the
Association of International Bond Dealers,
or another designated offshore securities
market and neither the Owner nor any person
acting on its behalf knows that the
transaction has been prearranged with a
buyer in the United States;
(D) no directed selling efforts have been made in the
United States by or on behalf of the Owner or any affiliate thereof;
(E) if the Owner is a dealer in securities or has
received a selling concession, fee or other remuneration in respect of
the Specified Notes, and the transfer is to occur during the Restricted
Period, then the requirements of Rule 904(c) (1) have been satisfied;
and
(F) the transaction is not part of a plan or scheme
to evade the registration requirements of the Securities Act.
(2) Rule 144 Transfers. If the transfer is being effected
pursuant to Rule 144:
(A) the transfer is occurring after January 15, 1999
and is being effected in accordance with the applicable amount, manner
of sale and notice requirements of Rule 144; or
(B) the transfer is occurring after January 15, 2000
and the Owner is not, and during the preceding three months has not
been, an affiliate of the Company.
This certificate and the statements contained herein are made
for your benefit and the benefit of the Company and the Initial Purchaser.
Dated: [ ] ---------------------------------------
(Print the name of the Undersigned, as
such term is defined in the second
paragraph of this certificate.)
By:
------------------------------------
Name:
Title:
(If the Undersigned is a corporation,
partnership or fiduciary, the title of
the person signing on behalf of the
Undersigned must be stated.)
A-2
<PAGE>
<PAGE>
Annex B -- Form of Restricted Notes
Certificate
RESTRICTED NOTES CERTIFICATE
(For transfers pursuant to 'SS' 3.06(b) (ii), (iii), (iv) and (v) of the
Indenture)
First Trust of California, National Association
as Trustee
550 South Hope Street, Suite 500
Los Angeles, CA 90071
Re: Senior Discount Notes Due January 15, 2008 of Century
Communications Corp. (the "Notes")
Reference is made to the Indenture dated as of January 15,
1998 (the "Indenture") among Century Communications Corp. (the "Company") and
First Trust of California, National Association, as Trustee. Terms used herein
and defined in the Indenture or in Rule 144A or Rule 144 under the U.S.
Securities Act of 1933 (the "Securities Act") are used herein as so defined.
This certificate relates to U.S. $_______________ principal
amount of Notes at Maturity, which are evidenced by the following certificate(s)
(the "Specified Notes"):
CUSIP No(s).
CERTIFICATE No(s).
The person in whose name this certificate is executed below
(the "Undersigned") hereby certifies that either (i) it is the sole beneficial
owner of the Specified Notes or (ii) it is acting on behalf of all the
beneficial owners of the Specified Notes and is duly authorized by them to do
so. Such beneficial owner or owners are referred to herein collectively as the
"Owner". If the Specified Notes are represented by a Global Note, they are held
through the Depositary or an Agent Member in the name of the Undersigned, as or
on behalf of the Owner. If the Specified Notes are not represented by a Global
Note, they are registered in the name of the Undersigned, as or on behalf of the
Owner.
The Owner has requested that the Specified Notes be
transferred to a person (the "Transferee") who will take delivery in the form of
a Restricted Note. In connection with such transfer, the Owner hereby certifies
that, unless such transfer is being effected pursuant to an effective
registration statement under the Securities Act, it is being effected in
accordance with Rule 144A or Rule 144 under the Securities Act and all
applicable securities laws of the states of the United States and other
jurisdictions. Accordingly, the Owner hereby further certifies as follows:
(1) Rule 144A Transfers. If the transfer is being effected in
accordance with Rule 144A:
(A) the Specified Notes are being transferred to a
person that the Owner and any person acting on its behalf reasonably
believe is a "qualified institutional buyer" within the meaning of Rule
144A, acquiring for its own account or for the account of a qualified
institutional buyer; and
(B) the Owner and any person acting on its behalf
have taken reasonable steps to ensure that the Transferee is aware that
the Owner may be relying on Rule 144A in connection with the transfer;
and
B-1
<PAGE>
<PAGE>
(2) Rule 144 Transfers. If the transfer is being effected
pursuant to Rule 144:
(A) the transfer is occurring after January 15, 1999
and is being effected in accordance with the applicable amount, manner
of sale and notice requirements of Rule 144; or
(B) the transfer is occurring after January 15, 2000
and the Owner is not, and during the preceding three months has not
been, an affiliate of the Company.
This certificate and the statements contained herein are made
for your benefit and the benefit of the Company and the Initial Purchaser.
Dated: [ ]
---------------------------------------
(Print the name of the Undersigned, as
such term is defined in the second
paragraph of this certificate.)
By:
------------------------------------
Name:
Title:
(If the Undersigned is a corporation,
partnership or fiduciary, the title of
the person signing on behalf of the
Undersigned must be stated.)
B-2
<PAGE>
<PAGE>
Annex C -- Form of Unrestricted Notes
Certificate
UNRESTRICTED NOTES CERTIFICATE
(For removal of Securities Act Legends pursuant to 'SS' 306(c))
First Trust of California, National Association
as Trustee
550 South Hope Street, Suite 500
Los Angeles, CA 90071
Re: Senior Discount Notes Due January 15, 2008 of Century
Communications Corp. (the "Notes")
Reference is made to the Indenture dated as of January 15,
1998 (the "Indenture") among Century Communications Corp. (the "Company") and
First Trust of California, National Association, as Trustee. Terms used herein
and defined in the Indenture or in Rule 144 under the U.S. Securities Act of
1933 (the "Securities Act") are used herein as so defined.
This certificate relates to U.S. $_______________ principal
amount of Notes at Maturity, which are evidenced by the following certificate(s)
(the "Specified Notes"):
CUSIP No(s).
CERTIFICATE No(s).
The person in whose name this certificate is executed below
(the "Undersigned") hereby certifies that either (i) it is the sole beneficial
owner of the Specified Notes or (ii) it is acting on behalf of all the
beneficial owners of the Specified Notes and is duly authorized by them to do
so. Such beneficial owner or owners are referred to herein collectively as the
"Owner". If the Specified Notes are represented by a Global Note, they are held
through the Depositary or an Agent Member in the name of the Undersigned, as or
on behalf of the Owner. If the Specified Notes are not represented by a Global
Note, they are registered in the name of the Undersigned, as or on behalf of the
Owner.
The Owner has requested that the Specified Notes be exchanged
for Notes bearing no Securities Act Legend pursuant to Section 3.06(c) of the
Indenture. In connection with such exchange, the Owner hereby certifies that the
exchange is occurring after January 15, 2000 and the Owner is not, and during
the preceding three months has not been, an affiliate of the Company. The Owner
also acknowledges that any future transfers of the Specified Notes must comply
with all applicable securities laws of the states of the United States and other
jurisdictions.
C-1
<PAGE>
<PAGE>
This certificate and the statements contained herein are made
for your benefit and the benefit of the Company and the Initial Purchaser.
Dated: [ ]
---------------------------------------
(Print the name of the Undersigned, as
such term is defined in the second
paragraph of this certificate.)
By:
------------------------------------
Name:
Title:
(If the Undersigned is a corporation,
partnership or fiduciary, the title of
the person signing on behalf of the
Undersigned must be stated.)
C-2
<PAGE>
<PAGE>
Annex D -- Form of Transfer Notice
TRANSFER NOTICE
Century Communications Corp.
50 Locust Avenue
New Canaan, Connecticut 06840
Attention: Secretary
First Trust of California, National Association
as Trustee and Registrar
550 South Hope Street, Suite 500
Los Angeles, California 90071
Attention: Corporate Trust Department
Re: Senior Discount Notes Due January 15, 2008 (the "Notes")
of Century Communications Corp. (the "Company")
Ladies and Gentlemen:
This certificate is delivered to request a transfer of $
principal amount of the Notes at Maturity.
Upon transfer, the Notes would be registered in the name of the new
beneficial owner as follows:
Name:__________________________________________
Address:_______________________________________
Taxpayer ID Number:____________________________
We represent, warrant and agree with you as follows with regard to the
Notes purchased by us and described in the Offering Memorandum, dated January 8,
1998 (the "Offering Memorandum").
1. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as amended (the
"Securities Act")) purchasing for our own account or for the account of such an
institutional "accredited investor," and we are acquiring the Notes not with a
view to, or for offer or sale in connection with, any distribution in violation
of the Securities Act. We have such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and risks of our
investment in the Notes and invest in or purchase securities similar to the
Notes in the normal course of our business. We and any accounts for which we are
acting are each able to bear the economic risk of our or its investment.
2. We understand that the Notes have not been registered under the
Securities Act and, unless so registered, may not be sold except as permitted in
the following sentence. We agree on our own behalf and on behalf of any investor
account for which we are purchasing Notes to offer, sell or otherwise transfer
such Notes prior to the date which is two years after the later of the date of
original issue and the last date on which the Company or any affiliate of the
Company was the owner of such Notes (or any predecessor thereto) (the "Resale
Restriction Termination Date") only (a) to the Company, (b) pursuant to a
registration statement which has been declared effective under the Securities
Act, (c) in a transaction complying with the requirements of Rule 144A under the
Securities Act, to a person we reasonably believe is a qualified institutional
buyer under Rule 144A (a "QIB") that purchases for its own account or for the
account of a QIB to whom notice is given that the transfer is being made in
reliance on Rule 144A, (d) pursuant to offers and sales that occur outside the
United States within the meaning of Regulation S under the Securities Act, or
(e) pursuant to any other available exemption from the
D-1
<PAGE>
<PAGE>
registration requirements of the Securities Act, subject in each of the
foregoing cases to any requirement of law that the disposition of our property
or the property of such investor account or accounts be at all time within our
or their control and in compliance with any applicable state securities laws.
The foregoing restrictions on resale will not apply subsequent to the Resale
Restriction Termination Date. If any resale or other transfer of the Notes is
proposed to be made pursuant to clause (d) or (e) above prior to the Resale
Restriction Termination Date, the transferor shall deliver a letter from the
transferee substantially in the form of this letter to the Company, the Trustee,
the Transfer Agent and the Registrar, which shall provide, among other things,
that the transferee is an institutional "accredited investor" with the meaning
of Rule 501(a)(1), (2), (3) or (7) under the Securities Act and that it is
acquiring such Notes for investment purposes and not for distribution in
violation of the Securities Act. Each purchaser acknowledges that the Company,
the Trustee, the Transfer Agent and the Registrar reserve the right prior to any
offer, sale or other transfer prior to the Resale Termination Date of the Notes
pursuant to clause (d) or (e) above to require the delivery of an opinion of
counsel, certifications and/or other information satisfactory to the Company,
the Trustee, the Transfer Agent and the Registrar.
3. We have such knowledge and experience in financial and business
matters that we are capable of evaluating the merits and risks of an investment
in the Notes, and we have received a copy of the Offering Memorandum.
4. We acknowledge that the Notes will bear a legend to the following
effect unless the Company determines otherwise consistently with applicable law;
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
OR FOREIGN SECURITIES LAWS. NEITHER THIS NOTE NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF
THIS NOTE IS HEREBY NOTIFIED THAT THE SELLER OF THIS NOTE MAY BE
RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF AGREES TO
OFFER, SELL OR OTHERWISE TRANSFER SUCH NOTE, PRIOR TO THE DATE (THE
"RESALE RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE
LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE
COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS NOTE (OR
ANY PREDECESSOR OF SUCH NOTE), ONLY (A) TO THE COMPANY, (B) PURSUANT TO
A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT, (C) FOR SO LONG AS THE NOTES ARE ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A
"QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT THAT A PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT
OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS
AND SALES THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF
REGULATION S UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR
TO ANY SUCH OFFER, SALE OR TRANSFER (I) PURSUANT TO CLAUSES (D) AND (E)
TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR
OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND (II) EACH OF THE
FOREGOING CASES, A TRANSFER NOTICE IS COMPLETED AND DELIVERED BY THE
TRANSFEROR TO THE COMPANY, THE
D-2
<PAGE>
<PAGE>
TRUSTEE, THE TRANSFER AGENT AND THE REGISTRAR. THIS LEGEND WILL BE
REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION
TERMINATION DATE.
5. If we are acquiring any Notes as a fiduciary or agent for one or
more accounts, we represent that we have sole investment discretion with respect
to each such account and that we have full power to make the foregoing
acknowledgments, representations and agreements with respect to each such
account and as set forth in the "Transfer Restrictions" contained in the
Offering Memorandum.
Very truly yours,
----------------------------------
(Name of Institution)
By:
------------------------------
(Authorized Person)
Name:
-------------------------
Title:
------------------------
Receipt acknowledged as the date
set forth above.
CENTURY COMMUNICATIONS CORP.
By:
------------------------------
Name:
Title:
FIRST TRUST OF CALIFORNIA,
NATIONAL ASSOCIATION, as Trustee
By:
------------------------------
Authorized Officer
D-3
<PAGE>
<PAGE>
[LETTERHEAD OF LEAVY ROSENSWEIG & HYMAN]
February 27, 1998
Century Communications Corp.
50 Locust Avenue
New Canaan, CT 06840
Ladies and Gentlemen:
We have acted as counsel to Century Communications Corp., a New Jersey
corporation (the "Issuer"), in connection with the preparation and filing with
the Securities and Exchange Commission of the Registration Statement on Form S-4
(the "Registration Statement") of the Issuer for registration under the
Securities Act of 1933, as amended (the "Securities Act"), of $605 million
aggregate principal amount of the Issuer's Senior Discount Notes Due January 15,
2008, Series B (the "New Notes"), issuable in connection with the exchange offer
of New Notes for the Issuer's Senior Discount Notes Due January 15, 2008, Series
A, which were not registered under the Securities Act (the "Existing Notes").
In so acting, we have examined originals or copies, certified or
otherwise identified to our satisfaction, of the Registration Statement, the
Indenture, dated as of January 15, 1998 (the "Indenture"), among the Issuer and
First Trust of California, National Association, as Trustee (the "Trustee"),
pursuant to which the New Notes will be issued, the form of the New Notes, and
such corporate records, agreements, documents and other instruments, and such
certificates or comparable documents of public officials and of officers and
representatives of the Issuer and the Company, and have made such inquiries of
such officers and representatives, as we have deemed relevant and necessary as a
basis for the opinions hereinafter set forth.
In such examination, we have assumed the genuineness of all signatures,
the legal capacity of natural persons, the authenticity of all documents
submitted to us as originals, the conformity to
<PAGE>
<PAGE>
Century Communications Corp.
Page 2
original documents of documents submitted to us as certified, conformed or
photostatic copies and the authenticity of the originals of such latter
documents. As to all questions of fact material to this opinion that have not
been independently established, we have relied upon certificates or comparable
documents of officers and representatives of the Issuer.
Based on the foregoing, and subject to the qualifications stated
herein, we are of the opinion that the New Notes have been duly authorized by
the Issuer and, when executed on behalf of the Issuer, authenticated by the
Trustee and delivered in accordance with the terms of the Indenture and as
contemplated by the Registration Statement, and upon the exchange by holders of
Existing Notes of Existing Notes for New Notes, will constitute valid and
legally binding obligations of the Issuer entitled to the benefits provided by
the Indenture, enforceable against the Issuer in accordance with their terms,
subject to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other similar laws affecting creditors' rights and
remedies generally and, as to enforceability, to general principles of equity,
including principles of commercial reasonableness, good faith and fair dealing
(regardless of whether sought in a proceeding at law or in equity).
We are licensed to practice law in the State of New York only. The
opinions set forth in this opinion letter are limited to the law of the State of
New York and Federal law of the United States of America, and we express no
opinion as to the effect on the matters covered by this opinion of the laws of
any other jurisdiction. With respect to matters of the law of the State of New
Jersey, the opinions rely on and are given only to the extent of and subject to
the qualifications set forth in the opinion of Connell, Foley & Geiser of even
date herewith, a copy of which has heretofore been furnished to you, as to all
matters relating to the law of the State of New Jersey. The opinion of Connell,
Foley & Geiser is satisfactory in form and scope to us and we believe that you
and we are entitled to rely thereon to the extent provided for therein.
Please be advised that David Z. Rosensweig, a partner of this firm, is
the Secretary and a director of the Company.
We consent to the reference to our name under the caption "Legal
Matters" in the prospectus which is a part of the Registration Statement.
Very truly yours,
/s/ LEAVY ROSENSWEIG & HYMAN
Leavy Rosensweig & Hyman
<PAGE>
<PAGE>
EXHIBIT 12
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
SIX MONTHS SIX MONTHS
YEAR ENDED MAY 31, ENDED ENDED
------------------------------------------------------- NOVEMBER 30, NOVEMBER 30,
1993 1994 1995 1996 1997 1997 1996
-------- -------- --------- --------- --------- ------------ ------------
(AMOUNTS IN THOUSANDS)
<S> <C> <C> <C> <C> <C> <C> <C>
Loss before income tax benefit,
minority interest and extraordinary
item................................. $(62,670) $(60,250) $(110,029) $(144,860) $(180,402) $(78,766) $ (102,637)
-------- -------- --------- --------- --------- ------------ ------------
Fixed charges:
Interest, including amortization of
debt issuance costs.................. 113,866 124,105 141,684 172,390 200,914 106,916 97,698
Interest capitalized................... -- -- -- 5,200 2,752 -- 2,598
Interest portion of rent expense....... 1,638 1,843 2,135 3,001 4,101 2,051 1,500
Preferred stock dividends on subsidiary
preferred stock...................... 5,883 5,838 4,419 4,256 4,850 2,518 2,349
-------- -------- --------- --------- --------- ------------ ------------
Total fixed charges.................... 121,387 131,786 148,238 184,847 212,617 111,485 104,145
-------- -------- --------- --------- --------- ------------ ------------
-------- -------- --------- --------- --------- ------------ ------------
Adjustments to fixed charges, as
defined:
Capitalized interest................... -- -- -- (5,200) (2,752) -- (2,598)
Preferred stock dividends on subsidiary
preferred stock...................... (5,883) (5,838) (4,419) (4,256) (4,850) (2,518) (2,349)
-------- -------- --------- --------- --------- ------------ ------------
Total adjustments to fixed charges..... (5,883) (5,838) (4,419) (9,456) (7,602) (2,518) (4,947)
-------- -------- --------- --------- --------- ------------ ------------
Earnings, as defined................... $ 52,834 $ 65,698 $ 33,790 $ 30,531 $ 24,613 $ 30,201 $ (3,439)
-------- -------- --------- --------- --------- ------------ ------------
-------- -------- --------- --------- --------- ------------ ------------
Ratio of earnings to fixed
charges(1)........................... $ -- $ -- $ -- $ -- $ -- $ -- $ --
-------- -------- --------- --------- --------- ------------ ------------
-------- -------- --------- --------- --------- ------------ ------------
Amount by which earnings are less than
fixed charges........................ $(68,553) $(66,088) $(114,448) $(154,316) $(188,004) $(81,284) $ (107,584)
-------- -------- --------- --------- --------- ------------ ------------
-------- -------- --------- --------- --------- ------------ ------------
</TABLE>
- ------------
(1) The ratio of earnings to fixed charges is less than one-to-one and,
therefore, earnings are inadequate to cover fixed charges.
<PAGE>
<PAGE>
EXHIBIT 21
SUBSIDIARIES OF CENTURY COMMUNICATIONS CORP., A NEW JERSEY CORPORATION
NAME STATE OF
ORGAN.
Badger Holding Corp. Delaware
CCC-I, Inc. Delaware
CCC-II, Inc. Delaware
CCC-III, Inc. Delaware
CDA Cable, Inc. Idaho
Century Advertising, Inc. Delaware
Century Advertising Sales Corp. Delaware
Century Alabama Corp. Delaware
Century Alabama Holding Corp. Delaware
Century Australia Communications Corp. Nevada
Century Australia Telecommunications Corp. Delaware
Century Bay Area Cable Corp. Delaware
Century Berkshire Cable Corp. Delaware
Century Cable of Northern California CA
Century Cable of Southern California CA
Century Cable Holding Corp. New York
Century Cable Management Corp. Conn.
Century Carolina Corp. Delaware
Century Cellular Holding Corp. New York
Century Colorado Springs Corp. Delaware
Century Communications Corp. Texas
Century Cullman Corp. Delaware
Century Enterprise Cable Corp. Delaware
Century Federal, Inc. CA
Century Granite Cable Television Corp. Delaware
Century Huntington Company Delaware
Century Indiana Corp. Wyoming
Century International Holding Corp. Nevada
Century Investment Holding Corp. Delaware
Century International Investment Corp. Nevada
Century Investors, Inc. Delaware
Century Island Associates, Inc. Delaware
Century Island Cable Television Corp. Delaware
Century Kansas Cable Television Corp. Delaware
Century Kootenai Cable Television Corp. Delaware
Century Lykens Cable Corp. Delaware
Century Mendocino Cable Television Inc. Delaware
Century Microwave Corp. Delaware
Century Mississippi Corp. Delaware
Century-ML Cable Corporation Delaware
Century Mountain Corp. Delaware
Century New Mexico Cable Television Corp. Delaware
Century Norwich Corp. Conn.
Century OCN Programming, Inc. Delaware
<PAGE>
<PAGE>
NAME STATE OF
ORGAN.
Century Ohio Cable Television Corp. Delaware
Century Oregon Cable Corp. Delaware
Century Pacific Cable TV Inc. Delaware
Century Programming, Inc. Delaware
Century Programming Ventures Corp. Nevada
Century Programming Ventures Holding Corp. Nevada
Century Pullman Cable Television Corp. Washington
Century Radio Corp. Delaware
Century Realty Corp. Delaware
Century Shasta Cable Television Corp. Delaware
Century Shenango Cable Television, Inc. Delaware
Century Southwest Cable Television, Inc. Delaware
Century Southwest Colorado Cable Television Corp. Delaware
Century Telecommunications, Inc. CA
Century Telecommunications Venture Corp. Delaware
Century Trinidad Cable Television Corp. Delaware
Century Valley Cable Corp. Delaware
Century Venture Corporation Delaware
Century Virginia Corp. Delaware
Century Voice and Data Communications, Inc. Nevada
Century Warrick Cable Corp. Delaware
Century Washington Cable Television Inc. Delaware
Century Western Cable Corp. Nevada
Century Wyoming Cable Television Corp. Delaware
COG Creations Holding Corp. Nevada
COG Creations Corp. Nevada
Cowlitz Cablevision Inc. Washington
CT Investment Corp. Delaware
E.& E. Cable Service, Inc. W. Virginia
Enchanted Cable Corporation New Mexico
FAE Cable Management Corp. Delaware
Grafton Cable Company W. Virginia
Huntington CATV, Inc. Indiana
Imperial Valley Cablevision, Inc. Texas
Kootenai Cable, Inc. Delaware
Mickelson Media of Florida, Inc. FL
Mickelson Media, Inc. Minnesota
Owensboro on the Air, Inc. Kentucky
Paragon Cable Television, Inc. Wisconsin
Paragon Cablevision Construction Corp. Wisconsin
Paragon Cablevision Management Corp. Wisconsin
Pullman TV Cable Co., Inc. Washington
Rentavision of Brunswick Inc. Georgia
S/T Cable Corp. Delaware
Sentinel Communications of Muncie, Indiana, Inc. Indiana
Southwest Colorado Cable, Inc. Delaware
Star Cablevision, Inc. Georgia
Star Cable Inc. W. Virginia
<PAGE>
<PAGE>
NAME STATE OF
ORGAN.
Valley Video Inc. New York
Warrick Cablevision Inc. Indiana
Westover T.V. Cable Co., Incorporated W. Virginia
Wilderness Cable Company W. Virginia
Yuma Cablevision, Inc. Texas
Alexandria Cellular Corp. Delaware
Alexandria Cellular License Corp. Delaware
Bauce Communications, Inc. Oregon
Bauce Communications of Beaumont, Inc. Oregon
Centennial Asia Pacific Cellular Holding Corp. Nevada
Centennial Ashe Cellular Corp. Delaware
Centennial Beauregard Cellular LLC Delaware
Centennial Beauregard Holding Corp. Delaware
Centennial Benton Harbor Cellular Corp. Delaware
Centennial Benton Harbor Holding Corp. Delaware
Centennial Caldwell Cellular Corp. Delaware
Centennial Cellular Corp. Delaware
Centennial Cellular Telephone Company of Coconino Delaware
Centennial Cellular Telephone Company of Del Norte Delaware
Centennial Cellular Telephone Company of Lawrence Delaware
Centennial Cellular Telephone Company of Modoc Delaware
Centennial Cellular Telephone Company of
Sacramento Valley Delaware
Centennial Cellular Telephone Company of
San Francisco Delaware
Centennial Cellular Wireless Holding Corp. New Jersey
Centennial Claiborne Cellular Corp. Delaware
Centennial Clinton Cellular Corp. Delaware
Centennial DeSoto Cellular Corp. Delaware
Centennial Hammond Cellular LLC Delaware
Centennial Iberia Holding Corp. Delaware
Centennial Jackson Cellular Corp. Delaware
Centennial Lafayette Cellular Corp. Louisiana
Centennial Lake Charles Cellular Corp. Delaware
Centennial Louisiana Holding Corp. Delaware
Centennial Michigan RSA 6 Cellular Corp. Delaware
Centennial Michigan RSA 7 Cellular Corp. Delaware
Centennial Microwave Corp. Delaware
Centennial Morehouse Cellular LLC Delaware
Centennial Puerto Rico Realty Corporation Puerto Rico
Centennial Puerto Rico Wireless Corporation Delaware
Centennial Randolph Cellular Corp. Delaware
Centennial Randolph Holding Corp. Delaware
Centennial Mega Comm Holding Corp. Delaware
Centennial Wireless PCS License Corp. Delaware
Centennial Wireless PCS Operations Corp. Delaware
Century Beaumont Cellular Corp. Delaware
Century Cellular Realty Corp. Delaware
Century Charlottesville Cellular Corp. Virginia
Century Charlottesville Cellular Corp. Delaware
<PAGE>
<PAGE>
NAME STATE OF
ORGAN.
Century El Centro Cellular Corp. California
Century Elkhart Cellular Corp. Delaware
Century Indiana Cellular Corp.
Century Lynchburg Cellular Corp. Delaware
Century Lynchburg Cellular Corp. Virginia
Century Michiana Cellular Corp. Delaware
Century Michigan Cellular Corp. Delaware
Century Montgomery Cellular Corp. Delaware
Century Roanoke Cellular Corp. Virginia
Century Roanoke Cellular Corp. Delaware
Century Rural Cellular Corp. Delaware
Century South Bend Cellular Corp. Delaware
Century Yuma Paging Corp. Delaware
Century Yuma Cellular Corp. Delaware
El Centro Cellular Corporation Delaware
Elkhart Metronet, Inc. Indiana
Hendrix Electronics, Inc. California
Hendrix Radio Communications, Inc. California
Iberia Cellular Telephone Company LLC Delaware
Lafayette Communications, Inc. Delaware
Lambda Communications, Incorporated (Incorporado) Puerto Rico
Lambda Operations Corp. Delaware
Lambda PCS Corp. Nevada
Lambda Realty Corp. Delaware
Mega Comm, Inc. Delaware
Michiana Metronet, Inc. Indiana
South Bend Metronet, Inc. Indiana
Century Colorado Springs Partnership Delaware
Century-ML Cable Venture New York
Citizens Century Cable Television Venture Delaware
Centennial Tri-State Operating Partnership Delaware
Centennial Randolph Cellular LLC Delaware
Mega Comm LLC Delaware
<PAGE>
<PAGE>
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of Century Communications Corp. on Form S-4 of our report dated August 4, 1997,
appearing in the Annual Report on Form 10-K of Century Communications Corp. for
the year ended May 31, 1997, and to the reference to us under the heading
"Experts" in the Prospectus, which is part of this Registration Statement.
Stamford, CT
February 26, 1998
<PAGE>
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
--------------------
FORM T-1
Statement of Eligibility and Qualification under the
Trust Indenture Act of 1939 of a Corporation
Designated to Act as Trustee
--------------------
FIRST TRUST OF CALIFORNIA, NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
United States 94-3160100
(State of Incorporation) (IRS Employer Identification No.)
550 South Hope Street, Suite 500
Los Angeles, California 90071
(Address of principal executive offices and zip code)
--------------------
CENTURY COMMUNICATIONS CORP.
(Exact name of obligor as specified in its charter)
NEW JERSEY
(State or other jurisdiction of Incorporation or organization)
06-1158179
(IRS Employer Identification No.)
50 LOCUST AVENUE
NEW CANAAN, CONNECTICUT
06840
(Address of principal executive offices and Zip code)
SENIOR DEBT SECURITIES
(Title of the indenture securities)
<PAGE>
<PAGE>
GENERAL
1. GENERAL INFORMATION Furnish the following information as to the trustee.
(a) Name and address of each examining or supervising authority to which it
is subject.
Comptroller of the Currency
Washington DC
(b) Whether it is authorized to exercise corporate trust powers.
Yes
2. AFFILIATIONS WITH OBLIGOR AND UNDERWRITERS If the obligor or any underwriter
for the obligor is an affiliate of the trustee, describe each such
affiliation.
None
See Note following Item 16.
Items 3-15 are not applicable because to the best of the Trustee's knowledge
the obligor is not in default under any Indenture for which the Trustee acts
as Trustee.
16. LIST OF EXHIBITS List below all exhibits filed as a part of this statement
of eligibility and qualification.
Exhibit 1 -Articles of Association of First Trust of California, National
Association dated June 5, 1992. Incorporated herein by reference
to Exhibit 1 filed with Form T-1 statement, Registration No.
33-50826
Exhibit 2 -Certificate of the Comptroller of Currency as to authority of
First Trust of California, National Association to commence the
business of banking. Incorporated herein by reference to Exhibit 2
filed with Form T-1 Statement, Registration No. 33-50826
Exhibit 3 -Authorization of the Comptroller of Currency granting First Trust
of California, National Association, the right to exercise
corporate trust powers. Incorporated herein by reference to
Exhibit 3 filed with Form T-1 Statement, Registration No. 33-50826
Exhibit 4 -By-Laws of First Trust of California, National Association, dated
June 15, 1992. Incorporated herein by reference to Exhibit 4 filed
with Form T-1 Statement, Registration No. 33-50826
Exhibit 5 -Not Applicable
Exhibit 6 -Consent of First Trust of California, National Association
required by Section 321(b) of the Act. Incorporated herein by
reference to Exhibit 6 filed with Form T-1 Statement, Registration
No. 33-50826
<PAGE>
<PAGE>
Exhibit 7 -Report of Condition of First Trust of California, National
Association, as of the close of business on December 31, 1997
published pursuant to law or the requirements of its supervising
or examining authority.
NOTE
The answers to this statement insofar as such answers relate to what persons
have been underwriters for any securities of the obligor within three years
prior to the date of filing this statement, or what persons are owners of 10% or
more of the voting securities of the obligor, or affiliates, are based upon
information furnished to the trustee by the obligor. While the trustee has no
reason to doubt the accuracy of any such information, it cannot accept any
responsibility therefor.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the Trustee,
First Trust of California, National Association, an Association organized and
existing under the laws of the United States, has duly caused this statement of
eligibility and qualification to be signed on its behalf by the undersigned,
thereunto duly authorized, and its seal to be hereunto affixed and attested, all
in the City of Los Angeles and State of California on the 27th day of February,
1998.
FIRST TRUST OF CALIFORNIA, NATIONAL ASSOCIATION
By: /s/ ROBERT SCHNEIDER
------------------------
Robert Schneider
Assistant Vice President
Attest: /s/ TAMARA MAWN
---------------
Tamara Mawn
Vice President
<PAGE>
<PAGE>
EXHIBIT 6
C O N S E N T
In accordance with Section 321(b) of the Trust Indenture Act of 1939, the
undersigned, FIRST TRUST OF CALIFORNIA, NATIONAL ASSOCIATION, hereby consents
that reports of examination of the undersigned by Federal, State, Territorial or
District authorities may be furnished by such authorities to the Securities and
Exchange Commission upon its request therefor.
Dated:
FIRST TRUST OF CALIFORNIA,
NATIONAL ASSOCIATION
By: /s/ ROBERT SCHNEIDER
------------------------
Robert Schneider
Assistant Vice President
<PAGE>
<PAGE>
FIRST TRUST OF CALIFORNIA, NATIONAL ASSOCIATION
STATEMENT OF FINANCIAL CONDITION
AS OF 12/31/97
($000'S)
<TABLE>
<S> <C>
ASSETS:
Cash and Balances Due From Depository Institutions: 51,033
Federal Reserve Stock: 5,072
Fixed Assets: 723
Intangible Assets: 74,345
Other Assets: 7,181
-------
TOTAL ASSETS: 138,354
-------
LIABILITIES:
Other Liabilities: 8,494
-------
TOTAL LIABILITIES: 8,494
-------
EQUITY:
Common and Preferred Stock: 1,000
Surplus: 126,260
Undivided Profits and Capital Reserve: 2,597
Net unrealized holding gains (losses) on available-for-sale
securities 3
-------
TOTAL EQUITY CAPITAL: 129,860
-------
TOTAL LIABILITIES AND EQUITY CAPITAL: 138,354
-------
</TABLE>
- --------------------------------------------------------------------------
To the best of the undersigned's determination, as of this date the above
financial information is true and correct.
First Trust of California, National Association
By: ROBERT SCHNEIDER
------------------------
Assistant Vice President
<PAGE>
<PAGE>
----------------------------
REGISTRATION RIGHTS AGREEMENT
DATED AS OF JANUARY 15, 1998
BETWEEN
CENTURY COMMUNICATIONS CORP.
AND
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED,
----------------------------
<PAGE>
<PAGE>
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made and
entered into this fifteenth day of January, 1998, between Century Communications
Corp., a New Jersey corporation (the "Company"), and Merrill Lynch, Pierce,
Fenner & Smith Incorporated, (the "Initial Purchaser").
This Agreement is made pursuant to the Purchase Agreement, dated
January 8, 1998, between the Company and the Initial Purchaser (the "Purchase
Agreement"), which provides for the sale by the Company to the Initial Purchaser
of an aggregate of $605 million principal amount at maturity of the Company's
Senior Discount Notes due 2008, Series A (the "Securities"). In order to induce
the Initial Purchaser to enter into the Purchase Agreement, the Company has
agreed to provide to the Initial Purchaser and its direct and indirect
transferees the registration rights set forth in this Agreement. The execution
of this Agreement is a condition to the closing under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as
follows:
1. Definitions. As used in this Agreement, the following capitalized
defined terms shall have the following meanings:
"1933 Act" shall mean the Securities Act of 1933, as amended from time
to time.
"1934 Act" shall mean the Securities Exchange Act of 1934, as amended
from time to time.
"Closing Date" shall mean the Closing Date as defined in the Purchase
Agreement.
"Company" shall have the meaning set forth in the preamble and shall
also include the Company's successors.
"Depositary" shall mean The Depository Trust Company, or any other
depository appointed by the Company, provided, however, that such
depositary must have an address in the Borough of Manhattan, in the City of
New York.
"Exchange Offer" shall mean the exchange offer by the Company of
Exchange Securities for Registrable Securities pursuant to Section 2.1
hereof.
"Exchange Offer Registration" shall mean a registration under the 1933
Act effected pursuant to Section 2.1 hereof.
<PAGE>
<PAGE>
"Exchange Offer Registration Statement" shall mean an exchange offer
registration statement on Form S-4 (or, if applicable, on another
appropriate form), and all amendments and supplements to such registration
statement, including the Prospectus contained therein, all exhibits thereto
and all documents incorporated by reference therein.
"Exchange Period" shall have the meaning set forth in Section 2.1
hereof.
"Exchange Securities" shall mean the Senior Discount Notes due 2008,
Series B issued by the Company under the Indenture containing terms
identical to the Securities in all material respects (except for references
to certain interest rate provisions, restrictions on transfers and
restrictive legends), to be offered to Holders of Securities in exchange
for Registrable Securities pursuant to the Exchange Offer.
"Holder" shall mean the Initial Purchaser, for so long as it owns any
Registrable Securities, and each of its successors, assigns and direct and
indirect transferees who become registered owners of Registrable Securities
under the Indenture and each Participating Broker-Dealer that holds
Exchange Securities for so long as such Participating Broker-Dealer is
required to deliver a prospectus meeting the requirements of the 1933 Act
in connection with any resale of such Exchange Securities.
"Indenture" shall mean the Indenture relating to the Securities, dated
as of January 15, 1998, between the Company and First Trust of California,
National Association, as trustee, as the same may be amended, supplemented,
waived or otherwise modified from time to time in accordance with the terms
thereof.
"Initial Purchaser" shall have the meaning set forth in the preamble.
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of Outstanding (as defined in the Indenture)
Registrable Securities; provided that whenever the consent or approval of
Holders of a specified percentage of Registrable Securities is required
hereunder, Registrable Securities held by the Company and other obligors on
the Securities or any Affiliate (as defined in the Indenture) of the
Company shall be disregarded in determining whether such consent or
approval was given by the Holders of such required percentage amount.
"Participating Broker-Dealer" shall mean any of Merrill Lynch, Pierce,
Fenner & Smith Incorporated and any other broker-dealer which makes a
market in the Securities and exchanges Registrable Securities in the
Exchange Offer for Exchange Securities.
"Person" shall mean an individual, partnership (general or limited),
corporation, limited liability company, trust or unincorporated
organization, or a government or agency or political subdivision thereof.
-2-
<PAGE>
<PAGE>
"Prospectus" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including any such
prospectus supplement with respect to the terms of the offering of any
portion of the Registrable Securities covered by a Shelf Registration
Statement, and by all other amendments and supplements to a prospectus,
including post-effective amendments, and in each case including all
material incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the preamble.
"Registrable Securities" shall mean the Securities; provided, however,
that Securities shall cease to be Registrable Securities when (i) a
Registration Statement with respect to such Securities shall have been
declared effective under the 1933 Act and such Securities shall have been
disposed of pursuant to such Registration Statement, (ii) such Securities
have been sold to the public pursuant to Rule 144 (or any similar provision
then in force, but not Rule 144A) under the 1933 Act, (iii) such Securities
shall have ceased to be outstanding or (iv) the Exchange Offer is
consummated (except in the case of Securities purchased from the Company
and continued to be held by the Initial Purchaser).
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance by the Company with this Agreement, including
without limitation: (i) all SEC, stock exchange or National Association of
Securities Dealers, Inc. ("NASD") registration and filing fees, including,
if applicable, the fees and expenses of any "qualified independent
underwriter" (and its counsel) that is required to be retained by any
holder of Registrable Securities in accordance with the rules and
regulations of the NASD, (ii) all fees and expenses incurred in connection
with compliance with state securities or blue sky laws and compliance with
the rules of the NASD (including reasonable fees and disbursements of
counsel for any underwriters or Holders in connection with blue sky
qualification of any of the Exchange Securities or Registrable Securities
and any filings with the NASD), (iii) all expenses of any Persons in
preparing or assisting in preparing, word processing, printing and
distributing any Registration Statement, any Prospectus, any amendments or
supplements thereto, any underwriting agreements, securities sales
agreements and other documents relating to the performance of and
compliance with this Agreement, (iv) all fees and expenses incurred in
connection with the listing, if any, of any of the Registrable Securities
on any securities exchange or exchanges, (v) all rating agency fees, (vi)
the fees and disbursements of counsel for the Company and of the
independent public accountants for the Company, including the expenses of
any special audits or "cold comfort" letters required by or incident to
such performance and compliance, (vii) the fees and expenses of the
Trustee, and any escrow agent or custodian, (viii) the reasonable fees and
expenses of the Initial Purchaser in connection with the Exchange Offer,
including the reasonable fees and expenses of counsel to the Initial
Purchaser in connection therewith, (ix) the reasonable fees and
disbursements of
-3-
<PAGE>
<PAGE>
Simpson Thacher & Bartlett, special counsel representing the Holders of
Registrable Securities and (x) any fees and disbursements of the
underwriters customarily required to be paid by issuers or sellers of
securities and the fees and expenses of any special experts retained by the
Company in connection with any Registration Statement, but excluding
underwriting discounts and commissions and transfer taxes, if any, relating
to the sale or disposition of Registrable Securities by a Holder.
"Registration Statement" shall mean any registration statement of the
Company which covers any of the Exchange Securities or Registrable
Securities pursuant to the provisions of this Agreement, and all amendments
and supplements to any such Registration Statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
"SEC" shall mean the Securities and Exchange Commission or any
successor agency or government body performing the functions currently
performed by the United States Securities and Exchange Commission.
"Shelf Registration" shall mean a registration effected pursuant to
Section 2.2 hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
statement of the Company pursuant to the provisions of Section 2.2 of this
Agreement which covers all of the Registrable Securities on an appropriate
form under Rule 415 under the 1933 Act, or any similar rule that may be
adopted by the SEC, and all amendments and supplements to such registration
statement, including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all material
incorporated by reference therein.
"Trustee" shall mean the trustee with respect to the Securities under
the Indenture.
2. Registration Under the 1933 Act.
2.1 Exchange Offer. The Company shall, for the benefit of the Holders,
at the Company's cost, (A) prepare and, as soon as practicable but not later
than 90 days following the Closing Date, file with the SEC an Exchange Offer
Registration Statement on an appropriate form under the 1933 Act with respect to
a proposed Exchange Offer and the issuance and delivery to the Holders, in
exchange for the Registrable Securities, of a like principal amount of Exchange
Securities, (B) use its best efforts to cause the Exchange Offer Registration
Statement to be declared effective under the 1933 Act within 180 days of the
Closing Date, (C) use its best efforts to keep the Exchange Offer Registration
Statement effective until the closing of the Exchange Offer and (D) use its best
efforts to cause the Exchange Offer to be consummated not later than 210 days
following the Closing Date. The Exchange Securities will be issued under the
Indenture. Upon the effectiveness of the
-4-
<PAGE>
<PAGE>
Exchange Offer Registration Statement, the Company shall promptly commence the
Exchange Offer, it being the objective of such Exchange Offer to enable each
Holder eligible and electing to exchange Registrable Securities for Exchange
Securities (assuming that such Holder (a) is not an affiliate of the Company
within the meaning of Rule 405 under the 1933 Act, (b) is not a broker-dealer
tendering Registrable Securities acquired directly from the Company for its own
account, (c) acquired the Exchange Securities in the ordinary course of such
Holder's business and (d) has no arrangements or understandings with any Person
to participate in the Exchange Offer for the purpose of distributing the
Exchange Securities) to transfer such Exchange Securities from and after their
receipt without any limitations or restrictions under the 1933 Act and under
state securities or blue sky laws.
In connection with the Exchange Offer, the Company shall:
(a) mail as promptly as practicable to each Holder a copy of the
Prospectus forming part of the Exchange Offer Registration Statement, together
with an appropriate letter of transmittal and related documents;
(b) keep the Exchange Offer open for acceptance for a period of not
less than 30 calendar days after the date notice thereof is mailed to the
Holders (or longer if required by applicable law) (such period referred to
herein as the "Exchange Period");
(c) utilize the services of the Depositary for the Exchange Offer;
(d) permit Holders to withdraw tendered Registrable Securities at any
time prior to 5:00 p.m. (Eastern Time), on the last business day of the Exchange
Period, by sending to the institution specified in the notice, a telegram,
telex, facsimile transmission or letter setting forth the name of such Holder,
the principal amount of Registrable Securities delivered for exchange, and a
statement that such Holder is withdrawing such Holder's election to have such
Securities exchanged;
(e) notify each Holder that any Registrable Security not tendered will
remain outstanding and continue to accrue original issue discount, but will not
retain any rights under this Agreement (except in the case of the Initial
Purchaser and Participating Broker-Dealers as provided herein); and
(f) otherwise comply in all respects with all applicable laws relating
to the Exchange Offer.
The Exchange Securities shall be issued under (i) the Indenture or
(ii) an indenture identical in all material respects to the Indenture and which,
in either case, has been qualified under the Trust Indenture Act of 1939, as
amended (the "TIA"), or is exempt from such qualification and shall provide that
the Exchange Securities shall not be subject to the transfer restrictions set
forth in the Indenture. The Indenture or such indenture shall provide that the
Exchange Securities and the Securities shall vote and consent together on all
matters
-5-
<PAGE>
<PAGE>
as one class and that none of the Exchange Securities or the Securities
will have the right to vote or consent as a separate class on any matter.
As soon as practicable after the close of the Exchange Offer, the
Company shall:
(i) accept for exchange all Registrable Securities duly tendered and
not validly withdrawn pursuant to the Exchange Offer in accordance with the
terms of the Exchange Offer Registration Statement and the letter of
transmittal which shall be an exhibit thereto;
(ii) deliver to the Trustee for cancellation all Registrable
Securities so accepted for exchange; and
(iii) cause the Trustee promptly to authenticate and deliver Exchange
Securities to each Holder of Registrable Securities so accepted for
exchange in a principal amount equal to the principal amount of the
Registrable Securities of such Holder so accepted for exchange.
Original issue discount on each Exchange Security will continue to
accrue from the date of original issuance. The Exchange Offer shall not be
subject to any conditions, other than (i) that the Exchange Offer, or the making
of any exchange by a Holder, does not violate applicable law or any applicable
interpretation of the staff of the SEC, (ii) the due tendering of Registrable
Securities in accordance with the Exchange Offer, (iii) that each Holder of
Registrable Securities exchanged in the Exchange Offer shall have represented
that all Exchange Securities to be received by it shall be acquired in the
ordinary course of its business and that at the time of the consummation of the
Exchange Offer it shall have no arrangement or understanding with any person to
participate in the distribution (within the meaning of the 1933 Act) of the
Exchange Securities and shall have made such other representations as may be
reasonably necessary under applicable SEC rules, regulations or interpretations
to render the use of Form S-4 or other appropriate form under the 1933 Act
available and (iv) that no action or proceeding shall have been instituted or
threatened in any court or by or before any governmental agency with respect to
the Exchange Offer which, in the Company's judgment, would reasonably be
expected to impair the ability of the Company to proceed with the Exchange
Offer. The Company shall inform the Initial Purchaser of the names and addresses
of the Holders to whom the Exchange Offer is made, and the Initial Purchaser
shall have the right to contact such Holders and otherwise facilitate the tender
of Registrable Securities in the Exchange Offer.
2.2 Shelf Registration. (i) If, because of any changes in law, SEC
rules or regulations or applicable interpretations thereof by the staff of the
SEC, the Company is not permitted to effect the Exchange Offer as contemplated
by Section 2.1 hereof, (ii) if for any other reason the Exchange Offer
Registration Statement is not declared effective within 180 days following the
original issue of the Registrable Securities or the Exchange Offer is not
consummated within 210 days after the original issue of the Registrable
Securities, (iii) upon
-6-
<PAGE>
<PAGE>
the request of Initial Purchaser or (iv) if a Holder is not permitted to
participate in the Exchange Offer or does not receive fully traceable Exchange
Securities pursuant to the Exchange Offer, then in case of each of clauses (i)
through (iv) the Company shall, at its cost:
(a) As promptly as practicable, but not later than the later of (a) 60
days after the Closing Date or (b) 30 days after such filing obligation
arises, file with the SEC, and thereafter shall use its best efforts to
cause to be declared effective as promptly as practicable but no later than
60 days after such obligation arises, a Shelf Registration Statement
relating to the offer and sale of the Registrable Securities by the Holders
from time to time in accordance with the methods of distribution elected by
the Majority Holders participating in the Shelf Registration and set forth
in such Shelf Registration Statement.
(b) Use its best efforts to keep the Shelf Registration Statement
continuously effective in order to permit the Prospectus forming part
thereof to be usable by Holders for a period of two years from the date the
Shelf Registration Statement is declared effective by the SEC, or for such
shorter period that will terminate when all Registrable Securities covered
by the Shelf Registration Statement have been sold pursuant to the Shelf
Registration Statement or cease to be outstanding or otherwise to be
Registrable Securities (the "Effectiveness Period"); provided, however,
that the Effectiveness Period in respect of the Shelf Registration
Statement shall be extended to the extent required to permit dealers to
comply with the applicable prospectus delivery requirements of Rule 174
under the 1933 Act and as otherwise provided herein.
(c) Notwithstanding any other provisions hereof, use its best efforts
to ensure that (i) any Shelf Registration Statement and any amendment
thereto and any Prospectus forming part thereof and any supplement thereto
complies in all material respects with the 1933 Act and the rules and
regulations thereunder, (ii) any Shelf Registration Statement and any
amendment thereto does not, when it becomes effective, contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading and (iii) any Prospectus forming part of any Shelf Registration
Statement, and any supplement to such Prospectus (as amended or
supplemented from time to time), does not include an untrue statement of a
material fact or omit to state a material fact necessary in order to make
the statements, in light of the circumstances under which they were made,
not misleading.
The Company shall not permit any securities other than Registrable
Securities to be included in the Shelf Registration Statement. The Company
further agrees, if necessary, to supplement or amend the Shelf Registration
Statement, as required by Section 3(b) below, and to furnish to the Holders of
Registrable Securities copies of any such supplement or amendment promptly after
its being used or filed with the SEC.
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2.3 Expenses. The Company shall pay all Registration Expenses in
connection with the registration pursuant to Section 2.1 or 2.2. Each Holder
shall pay all underwriting discounts and commissions and transfer taxes, if any,
relating to the sale or disposition of such Holder's Registrable Securities
pursuant to the Shelf Registration Statement.
2.4 Effectiveness. (a) The Company will be deemed not have used its
best efforts to cause the Exchange Offer Registration Statement or the Shelf
Registration Statement, as the case may be, to become, or to remain, effective
during the requisite period if the Company voluntarily takes any action that
would, or omits to take any action which omission would, result in any such
Registration Statement not being declared effective or in the Holders of
Registrable Securities covered thereby not being able to exchange or offer and
sell such Registrable Securities during that period as and to the extent
contemplated hereby, unless such action is required by applicable law.
(b) An Exchange Offer Registration Statement pursuant to Section 2.1
hereof or a Shelf Registration Statement pursuant to Section 2.2 hereof will not
be deemed to have become effective unless it has been declared effective by the
SEC; provided, however, that if, after it has been declared effective, the
offering of Registrable Securities pursuant to an Exchange Offer Registration
Statement or a Shelf Registration Statement is interfered with by any stop
order, injunction or other order or requirement of the SEC or any other
governmental agency or court, such Registration Statement will be deemed not to
have become effective during the period of such interference, until the offering
of Registrable Securities pursuant to such Registration Statement may legally
resume.
2.5 Liquidated Damages. The Indenture executed in connection with the
Securities will provide that in the event that either (a) the Exchange Offer
Registration Statement is not filed with the Commission on or prior to the 90th
calendar day following the date of original issue of the Securities, (b) the
Exchange Offer Registration Statement has not been declared effective on or
prior to the 180th calendar day following the date of original issue of the
Securities, (c) the Exchange Offer is not consummated on or prior to the 210th
calendar day following the date of original issue of the Securities or a Shelf
Registration Statement is not declared effective within 60 days after the
obligation to file such registration arose, (d) the Exchange Offer is required
to be consummated and the Company fails to issue Exchange Securities in exchange
for all Securities properly tendered and not withdrawn in the Exchange Offer
within 45 days of the date specified for the effectiveness of the Exchange Offer
Registration Statement or Shelf Registration Statement, as the case may be, or
(e) the Shelf Registration Statement or the Exchange Offer Registration
Statement is declared effective but thereafter cease to be effective or usable
in connection with the Exchange Offer or resale of Registrable Securities, as
the case may be, during the periods specified herein (each such event referred
to in clauses (a) through (e) above, a "Registration Default"), the Company
shall pay as liquidated damages ("Liquidated Damages") on the Registrable
Securities at a rate of one-quarter of one percent per annum (the "Rate")
multiplied by the accreted value thereof upon the occurrence of each
Registration Default, the Rate will increase by one quarter of one percent each
90-day period (or portion thereof) that such Liquidated
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Damages continue to accrue under any such circumstance, provided that the
maximum aggregate increase in the interest rate will in no event exceed one
percent (1%) per annum. Following the cure of all Registration Defaults the
accrual of Liquidated Damages will cease and the interest rate will revert to
zero.
If the Shelf Registration Statement is unusable by the Holders for any
reason, and the aggregate number of days in any consecutive twelve-month period
for which the Shelf Registration Statement shall not be usable exceeds 30 days
in the aggregate, then the Company shall pay Liquidated Damages at a rate of
0.25% per annum of the accreted value of the Securities as of the date such
payment is required to be made for the first 90-day period (or portion thereof)
beginning on the 31st such date that such Shelf Registration Statement ceases to
be usable, which rate shall be increased by an additional 0.25% per annum of the
accreted value of the Securities at the beginning of each subsequent 90-day
period, provided that the maximum aggregate increase in the interest rate will
in no event exceed one percent (1%) per annum. Any amounts payable under this
paragraph shall also be deemed "Liquidated Damages" for purposes of this
Agreement. Upon the Shelf Registration Statement once again becoming usable, the
interest rate borne by the Securities will revert to zero if the Company is
otherwise in compliance with this Agreement at such time. Liquidated Damages
shall be computed based on the actual number of days elapsed in each 90-day
period in which the Shelf Registration Statement is unusable.
The Company shall notify the Trustee within three business days after
each and every date on which an event occurs in respect of which Liquidated
Damages are required to be paid (an "Event Date"). Liquidated Damages shall be
paid by depositing with the Trustee, in trust, for the benefit of the Holders of
Registrable Securities, semiannually on each June 1 and December 1, commencing
with the first such date occurring after any such Liquidated Damages commence to
accrue in immediately available funds in sums sufficient to pay the Liquidated
Damages then due. The Liquidated Damages due shall be payable on each June 1 and
December 1 to the record Holder of Securities on May 15 and November 15,
respectively. Each obligation to pay Liquidated Damages shall be deemed to
accrue from and including the day following the applicable Event Date.
3. Registration Procedures.
In connection with the obligations of the Company with respect to
Registration Statements pursuant to Sections 2.1 and 2.2 hereof, the Company
shall:
(a) prepare and file with the SEC a Registration Statement, within the
relevant time period specified in Section 2, on the appropriate form under the
1933 Act, which form (i) shall be selected by the Company, (ii) shall, in the
case of a Shelf Registration, be available for the sale of the Registrable
Securities by the selling Holders thereof, (iii) shall comply as to form in all
material respects with the requirements of the applicable form and include or
incorporate by reference all financial statements required by the SEC to be
filed therewith or incorporated by reference therein, and (iv) shall comply in
all respects with the requirements of Regulation S-T under the 1933 Act, and use
its best efforts
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to cause such Registration Statement to become effective and remain effective in
accordance with Section 2 hereof;
(b) prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be necessary under applicable
law to keep such Registration Statement effective for the applicable period; and
cause each Prospectus to be supplemented by any required prospectus supplement,
and as so supplemented to be filed pursuant to Rule 424 (or any similar
provision then in force) under the 1933 Act and comply with the provisions of
the 1933 Act, the 1934 Act and the rules and regulations thereunder applicable
to them with respect to the disposition of all securities covered by each
Registration Statement during the applicable period in accordance with the
intended method or methods of distribution by the selling Holders thereof
(including sales by any Participating Broker-Dealer);
(c) in the case of a Shelf Registration, (i) notify each Holder of
Registrable Securities, at least five business days prior to filing, that a
Shelf Registration Statement with respect to the Registrable Securities is being
filed and advising such Holders that the distribution of Registrable Securities
will be made in accordance with the method selected by the Majority Holders
participating in the Shelf Registration; (ii) furnish to each Holder of
Registrable Securities and to each underwriter of an underwritten offering of
Registrable Securities, if any, without charge, as many copies of each
Prospectus, including each preliminary Prospectus, and any amendment or
supplement thereto and such other documents as such Holder or underwriter may
reasonably request, including financial statements and schedules and, if the
Holder so requests, all exhibits in order to facilitate the public sale or other
disposition of the Registrable Securities; and (iii) hereby consent to the use
of the Prospectus or any amendment or supplement thereto by each of the selling
Holders of Registrable Securities in connection with the offering and sale of
the Registrable Securities covered by the Prospectus or any amendment or
supplement thereto;
(d) use its best efforts to register or qualify the Registrable
Securities under all applicable state securities or "blue sky" laws of such
jurisdictions as any Holder of Registrable Securities covered by a Registration
Statement and each underwriter of an underwritten offering of Registrable
Securities shall reasonably request by the time the applicable Registration
Statement is declared effective by the SEC, and do any and all other acts and
things which may be reasonably necessary or advisable to enable each such Holder
and underwriter to consummate the disposition in each such jurisdiction of such
Registrable Securities owned by such Holder; provided, however, that the Company
shall not be required to (i) qualify as a foreign corporation or as a dealer in
securities in any jurisdiction where it would not otherwise be required to
qualify but for this Section 3(d), or (ii) take any action which would subject
it to general service of process or taxation in any such jurisdiction where it
is not then so subject;
(e) notify promptly each Holder of Registrable Securities under a
Shelf Registration or any Participating Broker-Dealer who has notified the
Company that it is utilizing the Exchange Offer Registration Statement as
provided in paragraph (f) below and, if
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requested by such Holder or Participating Broker-Dealer, confirm such advice in
writing promptly (i) when a Registration Statement has become effective and when
any post-effective amendments and supplements thereto become effective, (ii) of
any request by the SEC or any state securities authority for post-effective
amendments and supplements to a Registration Statement and Prospectus or for
additional information after the Registration Statement has become effective,
(iii) of the issuance by the SEC or any state securities authority of any stop
order suspending the effectiveness of a Registration Statement or the initiation
of any proceedings for that purpose, (iv) in the case of a Shelf Registration,
if, between the effective date of a Registration Statement and the closing of
any sale of Registrable Securities covered thereby, the representations and
warranties of the Company contained in any underwriting agreement, securities
sales agreement or other similar agreement, if any, relating to the offering
cease to be true and correct in all material respects, (v) of the happening of
any event or the discovery of any facts during the period a Shelf Registration
Statement is effective which makes any statement made in such Registration
Statement or the related Prospectus untrue in any material respect or which
requires the making of any changes in such Registration Statement or Prospectus
in order to make the statements therein not misleading, (vi) of the receipt by
the Company of any notification with respect to the suspension of the
qualification of the Registrable Securities or the Exchange Securities, as the
case may be, for sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose and (vii) of any determination by the Company
that a post-effective amendment to such Registration Statement would be
appropriate;
(f) (A) in the case of the Exchange Offer Registration Statement (i)
include in the Exchange Offer Registration Statement a section entitled "Plan of
Distribution" which section shall be reasonably acceptable to the Initial
Purchaser on behalf of the Participating Broker-Dealers, and which shall contain
a summary statement of the positions taken or policies made by the staff of the
SEC with respect to the potential "underwriter" status of any broker-dealer that
holds Registrable Securities acquired for its own account as a result of
market-making activities or other trading activities and that will be the
beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange
Securities to be received by such broker-dealer in the Exchange Offer, whether
such positions or policies have been publicly disseminated by the staff of the
SEC or such positions or policies, in the reasonable judgment of the Initial
Purchaser on behalf of the Participating Broker-Dealers and its counsel,
represent the prevailing views of the staff of the SEC, including a statement
that any such broker-dealer who receives Exchange Securities for Registrable
Securities pursuant to the Exchange Offer may be deemed a statutory underwriter
and must deliver a prospectus meeting the requirements of the 1933 Act in
connection with any resale of such Exchange Securities, (ii) furnish to each
Participating Broker-Dealer who has delivered to the Company the notice referred
to in Section 3(e), without charge, as many copies of each Prospectus included
in the Exchange Offer Registration Statement, including any preliminary
prospectus, and any amendment or supplement thereto, as such Participating
Broker-Dealer may reasonably request, (iii) hereby consent to the use of the
Prospectus forming part of the Exchange Offer Registration Statement or any
amendment or supplement thereto, by any Person subject to the prospectus
delivery requirements of the SEC, including all Participating Broker-Dealers, in
connection with the sale or transfer of the Exchange Securities covered by the
Prospectus or
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any amendment or supplement thereto, and (iv) include in the transmittal letter
or similar documentation to be executed by an exchange offeree in order to
participate in the Exchange Offer (x) the following provision:
"If the exchange offeree is a broker-dealer holding Registrable
Securities acquired for its own account as a result of market-making
activities or other trading activities, it will deliver a prospectus
meeting the requirements of the 1933 Act in connection with any resale
of Exchange Securities received in respect of such Registrable
Securities pursuant to the Exchange Offer;" and
(y) a statement to the effect that by a broker-dealer making the acknowledgment
described in clause (x) and by delivering a Prospectus in connection with the
exchange of Registrable Securities, the broker-dealer will not be deemed to
admit that it is an underwriter within the meaning of the 1933 Act; and
(B) in the case of any Exchange Offer Registration Statement, the
Company agrees to deliver to the Initial Purchaser on behalf of the
Participating Broker-Dealers upon the effectiveness of the Exchange Offer
Registration Statement (i) an opinion of counsel or opinions of counsel
substantially in the form attached hereto as Exhibit A, (ii) officers'
certificates substantially in the form delivered in connection with the initial
sale of the Securities to the Initial Purchaser and (iii) a comfort letter or
comfort letters substantially in the form delivered in connection with the
initial sale of the Securities to the Initial Purchaser, with such modifications
necessary to reflect a registered offering, and consistent with Statement on
Auditing Standards No. 72 of the American Institute of Certified Public
Accountants (or if such a comfort letter is not permitted, an agreed upon
procedures letter in customary form) from the Company's independent certified
public accountants (and, if necessary, any other independent certified public
accountants of any subsidiary of the Company or of any business acquired by the
Company for which financial statements are, or are required to be, included in
the Registration Statement) at least as broad in scope and coverage as the
comfort letter or comfort letters delivered to the Initial Purchaser in
connection with the initial sale of the Securities to the Initial Purchaser,
with such modifications necessary to reflect a registered offering;
(g) (i) in the case of an Exchange Offer, furnish counsel for the
Initial Purchaser and (ii) in the case of a Shelf Registration, furnish counsel
for the Holders of Registrable Securities copies of any comment letters received
from the SEC or any other request by the SEC or any state securities authority
for amendments or supplements to a Registration Statement and Prospectus or for
additional information;
(h) make every reasonable effort to obtain the withdrawal of any order
suspending the effectiveness of a Registration Statement at the earliest
possible moment;
(i) in the case of a Shelf Registration, furnish to each Holder of
Registrable Securities, and each underwriter, if any, without charge, at least
one conformed copy of each Registration Statement and any post-effective
amendment thereto, including financial
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statements and schedules (without documents incorporated therein by reference
and all exhibits thereto, unless requested);
(j) in the case of a Shelf Registration, cooperate with the selling
Holders of Registrable Securities to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold and not
bearing any restrictive legends; and enable such Registrable Securities to be in
such denominations (consistent with the provisions of the Indenture) and
registered in such names as the selling Holders or the underwriters, if any, may
reasonably request at least three business days prior to the closing of any sale
of Registrable Securities;
(k) in the case of a Shelf Registration, upon the occurrence of any
event or the discovery of any facts, each as contemplated by Sections 3(e)(v)
and 3(e)(vi) hereof, as promptly as practicable after the occurrence of such an
event, use its best efforts to prepare a supplement or post-effective amendment
to the Registration Statement or the related Prospectus or any document
incorporated therein by reference or file any other required document so that,
as thereafter delivered to the purchasers of the Registrable Securities or
Participating Broker-Dealers, such Prospectus will not contain at the time of
such delivery any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading or will remain so
qualified. At such time as such public disclosure is otherwise made or the
Company determines that such disclosure is not necessary, in each case to
correct any misstatement of a material fact or to include any omitted material
fact, the Company agrees promptly to notify each Holder of such determination
and to furnish each Holder such number of copies of the Prospectus as amended or
supplemented, as such Holder may reasonably request;
(l) in the case of a Shelf Registration, a reasonable time prior to
the filing of any Registration Statement, any Prospectus, any amendment to a
Registration Statement or amendment or supplement to a Prospectus or any
document which is to be incorporated by reference into a Registration Statement
or a Prospectus after the initial filing of a Registration Statement, provide
copies of such document to the Initial Purchaser on behalf of such Holders; and
make representatives of the Company as shall be reasonably requested by the
Holders of Registrable Securities, or the Initial Purchaser on behalf of such
Holders, available for discussion of such document;
(m) obtain a CUSIP number for all Exchange Securities or Registrable
Securities, as the case may be, not later than the effective date of a
Registration Statement, and provide the Trustee with global notes for the
Exchange Securities or the Registrable Securities, as the case may be, in a form
eligible for deposit with the Depositary;
(n) cause the Indenture to be qualified under the TIA in connection
with the registration of the Exchange Securities or Registrable Securities, as
the case may be, (ii) cooperate with the Trustee and the Holders to effect such
changes to the Indenture as may be required for the Indenture to be so qualified
in accordance with the terms of the TIA and (iii)
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execute, and use its best efforts to cause the Trustee to execute, all documents
as may be required to effect such changes, and all other forms and documents
required to be filed with the SEC to enable the Indenture to be so qualified in
a timely manner;
(o) in the case of a Shelf Registration, enter into agreements
(including underwriting agreements) and take all other customary and appropriate
actions in order to expedite or facilitate the disposition of such Registrable
Securities and in such connection whether or not an underwriting agreement is
entered into and whether or not the registration is an underwritten
registration:
(i) make such representations and warranties to the Holders of such
Registrable Securities and the underwriters, if any, in substantially the
same form, substance and scope as were made in connection with the initial
sale of the securities to the Initial Purchaser, with such modifications
necessary to reflect a registered offering;
(ii) obtain opinions of counsel to the Company and updates thereof
(which counsel and opinions (in form, scope and substance) shall be
reasonably satisfactory to the managing underwriters, if any, and the
holders of a majority in principal amount of the Registrable Securities
being sold) addressed to each selling Holder and the underwriters, if any,
covering the matters covered in the opinions delivered in connection with
the initial sale of the Securities to the Initial Purchaser, with such
modifications necessary to reflect a registered offering;
(iii) obtain "cold comfort" letters and updates thereof from the
Company's independent certified public accountants (and, if necessary, any
other independent certified public accountants of any subsidiary of the
Company or of any business acquired by the Company for which financial
statements are, or are required to be, included in the Registration
Statement) addressed to the underwriters, if any, and use reasonable
efforts to have such letter addressed to the selling Holders of Registrable
Securities (to the extent consistent with Statement on Auditing Standards
No. 72 of the American Institute of Certified Public Accounts), such
letters to be substantially in the form and covering matters covered in
"cold comfort" letters delivered in connection with the initial sale of the
Securities to the Initial Purchaser, with such modifications necessary to
reflect a public offering;
(iv) enter into a securities sales agreement with the Holders and an
agent of the Holders providing for, among other things, the appointment of
such agent for the selling Holders for the purpose of soliciting purchases
of Registrable Securities, which agreement shall be in form, substance and
scope customary for similar offerings, but in any event consistent with the
Underwriting Agreement Basic Provisions dated March 8, 1990;
(v) if an underwriting agreement is entered into, cause the same to
set forth indemnification provisions and procedures substantially
equivalent to the
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indemnification provisions and procedures set forth in Section 4 hereof
with respect to the underwriters and all other parties to be indemnified
pursuant to said Section or, at the request of any underwriters, in the
form customarily provided to such underwriters in similar types of
transactions, but in any event consistent with the Underwriting Agreement
Basic Provisions dated March 8, 1990; and
(vi) deliver such documents and certificates as may be reasonably
requested and as are customarily delivered in similar offerings to the
Holders of a majority in principal amount of the Registrable Securities
being sold and the managing underwriters, if any.
The above shall be done at (i) the effectiveness of such Registration Statement
(and each post-effective amendment thereto) and (ii) each closing under any
underwriting or similar agreement as and to the extent required thereunder;
(p) in the case of a Shelf Registration or if a Prospectus is required
to be delivered by any Participating Broker-Dealer in the case of an Exchange
Offer, make available for inspection by representatives of the Holders of the
Registrable Securities, any underwriters participating in any disposition
pursuant to a Shelf Registration Statement, any Participating Broker-Dealer and
any counsel or accountant retained by any of the foregoing, all financial and
other records, pertinent corporate documents and properties of the Company
reasonably requested by any such persons, and cause the respective officers,
directors, employees, and any other agents of the Company to supply all
information reasonably requested by any such representative, underwriter,
special counsel or accountant in connection with a Registration Statement, and
make such representatives of the Company available for discussion of such
documents as shall be reasonably requested by the Initial Purchaser;
(q) (i) in the case of an Exchange Offer Registration Statement, a
reasonable time prior to the filing of any Exchange Offer Registration
Statement, any Prospectus forming a part thereof, any amendment to an Exchange
Offer Registration Statement or amendment or supplement to such Prospectus,
provide copies of such document to the Initial Purchaser and to counsel to the
Holders of Registrable Securities and make such changes in any such document
prior to the filing thereof as the Initial Purchaser or counsel to the Holders
of Registrable Securities may reasonably request and, except as otherwise
required by applicable law, not file any such document in a form to which the
Initial Purchaser on behalf of the Holders of Registrable Securities and counsel
to the Holders of Registrable Securities shall not have previously been advised
and furnished a copy of or to which the Initial Purchaser on behalf of the
Holders of Registrable Securities or counsel to the Holders of Registrable
Securities shall reasonably object, and make the representatives of the Company
available for discussion of such documents as shall be reasonably requested by
the Initial Purchaser; and
(ii) in the case of a Shelf Registration, a reasonable time prior
to filing any Shelf Registration Statement, any Prospectus forming a part
thereof, any amendment to such Shelf Registration Statement or amendment or
supplement to such Prospectus, provide
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copies of such document to the Holders of Registrable Securities, to the Initial
Purchaser, to counsel for the Holders and to the underwriter or underwriters of
an underwritten offering of Registrable Securities, if any, make such changes in
any such document prior to the filing thereof as the Initial Purchaser, the
counsel to the Holders or the underwriter or underwriters reasonably request and
not file any such document in a form to which the Majority Holders, the Initial
Purchaser on behalf of the Holders of Registrable Securities, counsel for the
Holders of Registrable Securities or any underwriter shall not have previously
been advised and furnished a copy of or to which the Majority Holders, the
Initial Purchaser on behalf of the Holders of Registrable Securities, counsel to
the Holders of Registrable Securities or any underwriter shall reasonably
object, and make the representatives of the Company available for discussion of
such document as shall be reasonably requested by the Holders of Registrable
Securities, the Initial Purchaser on behalf of such Holders, counsel for the
Holders of Registrable Securities or any underwriter;
(r) in the case of a Shelf Registration, use its best efforts to cause
the Registrable Securities to be rated by the appropriate rating agencies, if so
requested by the Majority Holders, or if requested by the underwriter or
underwriters of an underwritten offering of Registrable Securities, if any;
(s) otherwise comply with all applicable rules and regulations of the
SEC and make available to its security holders, as soon as reasonably
practicable, an earnings statement covering at least 12 months which shall
satisfy the provisions of Section 11(a) of the 1933 Act and Rule 158 thereunder;
(t) cooperate and assist in any filings required to be made with the
NASD and, in the case of a Shelf Registration, in the performance of any due
diligence investigation by any underwriter and its counsel (including any
"qualified independent underwriter" that is required to be retained in
accordance with the rules and regulations of the NASD); and
(u) upon consummation of an Exchange Offer, obtain a customary opinion
of counsel to the Company addressed to the Trustee for the benefit of all
Holders of Registrable Securities participating in the Exchange Offer, and which
includes an opinion that (i) the Company has duly authorized, executed and
delivered the Exchange Securities, and the related indenture, and (ii) each of
the Exchange Securities and related indenture constitute a legal, valid and
binding obligation of the Company, enforceable against the Company in accordance
with its respective terms (with customary exceptions).
In the case of a Shelf Registration Statement, the Company may (as a
condition to such Holder's participation in the Shelf Registration) require each
Holder of Registrable Securities to furnish to the Company such information
regarding the Holder and the proposed distribution by such Holder of such
Registrable Securities as the Company may from time to time reasonably request
in writing.
In the case of a Shelf Registration Statement, each Holder agrees
that, upon receipt of any notice from the Company of the happening of any event
or the discovery of
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any facts, each of the kind described in Section 3(e)(v) hereof, such Holder
will forthwith discontinue disposition of Registrable Securities pursuant to a
Registration Statement until such Holder's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 3(k) hereof, and, if
so directed by the Company, such Holder will deliver to the Company (at its
expense) all copies in such Holder's possession, other than permanent file
copies then in such Holder's possession, of the Prospectus covering such
Registrable Securities current at the time of receipt of such notice.
In the event that the Company fails to effect the Exchange Offer or
file any Shelf Registration Statement and maintain the effectiveness of any
Shelf Registration Statement as provided herein, the Company shall not file any
Registration Statement with respect to any securities (within the meaning of
Section 2(1) of the 1933 Act) of the Company other than Registrable Securities.
If any of the Registrable Securities covered by any Shelf Registration
Statement are to be sold in an underwritten offering, the underwriter or
underwriters and manager or managers that will manage such offering will be
selected by the Majority Holders of such Registrable Securities included in such
offering and shall be acceptable to the Company. No Holder of Registrable
Securities may participate in any underwritten registration hereunder unless
such Holder (a) agrees to sell such Holder's Registrable Securities on the basis
provided in any underwriting arrangements approved by the persons entitled
hereunder to approve such arrangements and (b) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents required under the terms of such underwriting arrangements.
4. Indemnification; Contribution.
(a) The Company agrees to indemnify and hold harmless the Initial
Purchaser, each Holder, each Participating Broker-Dealer, each Person who
participates as an underwriter (any such Person being an "Underwriter") and each
Person, if any, who controls any Holder or Underwriter within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and or
liability, joint or several, and any action in respect thereof, arising out
of or based upon any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement (or any amendment or
supplement thereto) pursuant to which Exchange Securities or Registrable
Securities were registered under the 1933 Act, including all documents
incorporated therein by reference, or arising out of or based upon the
omission or alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements therein not misleading,
or arising out of any untrue statement or alleged untrue statement of a
material fact contained in any Prospectus (or any amendment or supplement
thereto) or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements
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therein, in the light of the circumstances under which they were made, not
misleading; and
(ii) any legal or other expenses reasonably incurred in
investigating or defending or preparing to defend against any such loss,
claim. damage, liability or action;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by the
Holder or Underwriter expressly for use in a Registration Statement (or any
amendment thereto) or any Prospectus (or any amendment or supplement thereto).
The foregoing indemnity agreement is in addition to any liability the
Company may have to each person indemnified pursuant to this paragraph (a).
(b) Each Holder severally, but not jointly, agrees to indemnify and
hold harmless the Company, the Initial Purchaser, each Underwriter and the other
selling Holders, and each of their respective directors and officers, and each
Person, if any, who controls the Company, the Initial Purchaser, any Underwriter
or any other selling Holder within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act, against any and all loss, liability, claim, damage
and expense described in the indemnity contained in Section 4(a) hereof, as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Shelf Registration Statement (or any
amendment thereto) or any Prospectus included therein (or any amendment or
supplement thereto) in reliance upon and in conformity with written information
with respect to such Holder furnished to the Company by such Holder expressly
for use in the Shelf Registration Statement (or any amendment thereto) or such
Prospectus (or any amendment or supplement thereto); provided, however, that no
such Holder shall be liable for any claims hereunder in excess of the amount of
net proceeds received by such Holder from the sale of Registrable Securities
pursuant to such Shelf Registration Statement.
The foregoing indemnity agreement is in addition to any liability such
Holder may have to each person indemnified pursuant to this paragraph (b).
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action or proceeding commenced
against it in respect of which indemnity may be sought hereunder, but failure so
to notify an indemnifying party shall not relieve such indemnifying party from
any liability hereunder to the extent it is not materially prejudiced as a
result thereof and in any event shall not relieve it from any liability which it
may have otherwise than on account of this indemnity agreement. An indemnifying
party may participate at its own expense in the defense of such action;
provided, however, that counsel to the indemnifying party shall not (except with
the consent of the indemnified party) also be counsel to the indemnified party.
In no event shall the
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indemnifying party or parties be liable for the fees and expenses of more than
one counsel (in addition to any local counsel) separate from their own counsel
for all indemnified parties in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances. No indemnifying party shall, without the
prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever in respect of which indemnification or
contribution could be sought under this Section 4 (whether or not the
indemnified parties are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes an unconditional release of each
indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
(d) If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 4(a)(ii) effected without its
written consent if (i) such settlement is entered into more than 45 days after
receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement at
least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
(e) If the indemnification provided for in this Section 4 is for any
reason unavailable to or insufficient to hold harmless an indemnified party in
respect of any losses, liabilities, claims, damages or expenses referred to
therein, then each indemnifying party shall contribute to the aggregate amount
of such losses, liabilities, claims, damages and expenses incurred by such
indemnified party, as incurred, in such proportion as is appropriate to reflect
the relative fault of the Company on the one hand and the Holders and the
Initial Purchaser on the other hand in connection with the statements or
omissions which resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations.
The relative fault of the Company on the one hand and the Holders and
the Initial Purchaser on the other hand shall be determined by reference to,
among other things, whether any such untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Company, the Holders or the Initial Purchaser and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission.
The Company, the Holders and the Initial Purchaser agree that it would
not be just and equitable if contribution pursuant to this Section 4 were
determined by pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to above in this
Section 4. The aggregate amount of losses, liabilities,
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claims, damages and expenses incurred by an indemnified party and referred to
above in this Section 4 shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in investigating, preparing or
defending against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever
based upon any such untrue or alleged untrue statement or omission or alleged
omission.
Notwithstanding the provisions of this Section 4, the Initial
Purchaser shall not be required to contribute any amount in excess of the amount
by which the total price at which the Securities sold by it were offered exceeds
the amount of any damages which the Initial Purchaser has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission.
No Person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the 1933 Act) shall be entitled to contribution from any
Person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 4, each Person, if any, who controls the
Initial Purchaser or Holder within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as the
Initial Purchaser or Holder, and each director of the Company, and each Person,
if any, who controls the Company within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act shall have the same rights to contribution as
the Company.
5. Miscellaneous.
5.1 Rule 144 and Rule 144A. For so long as the Company is subject to
the reporting requirements of Section 13 or 15 of the 1934 Act, the Company
covenants that it will file the reports required to be filed by it under the
1933 Act and Section 13(a) or 15(d) of the 1934 Act and the rules and
regulations adopted by the SEC thereunder. If the Company ceases to be so
required to file such reports, the Company covenants that it will upon the
request of any Holder of Registrable Securities (a) make publicly available such
information as is necessary to permit sales pursuant to Rule 144 under the 1933
Act, (b) deliver such information to a prospective purchaser as is necessary to
permit sales pursuant to Rule 144A under the 1933 Act and it will take such
further action as any Holder of Registrable Securities may reasonably request,
and (c) take such further action that is reasonable in the circumstances, in
each case, to the extent required from time to time to enable such Holder to
sell its Registrable Securities without registration under the 1933 Act within
the limitation of the exemptions provided by (i) Rule 144 under the 1933 Act, as
such Rule may be amended from time to time, (ii) Rule 144A under the 1933 Act,
as such Rule may be amended from time to time, or (iii) any similar rules or
regulations hereafter adopted by the SEC. Upon the request of any Holder of
Registrable Securities, the Company will deliver to such Holder a written
statement as to whether it has complied with such requirements.
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5.2 No Inconsistent Agreements. The Company has not entered into and
the Company will not after the date of this Agreement enter into any agreement
which is inconsistent with the rights granted to the Holders of Registrable
Securities in this Agreement or otherwise conflicts with the provisions hereof.
The rights granted to the Holders hereunder do not and will not for the term of
this Agreement in any way conflict with the rights granted to the holders of the
Company's other issued and outstanding securities under any such agreements.
5.3 Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless the Company has obtained the written consent of Holders
of at least a majority in aggregate principal amount of the outstanding
Registrable Securities affected by such amendment, modification, supplement,
waiver or departure.
5.4 Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, registered
first-class mail, telex, telecopier, or any courier guaranteeing overnight
delivery (a) if to a Holder, at the most current address given by such Holder to
the Company by means of a notice given in accordance with the provisions of this
Section 5.4, which address initially is the address set forth in the Purchase
Agreement with respect to the Initial Purchaser; and (b) if to the Company,
initially at the Company's address set forth in the Purchase Agreement, and
thereafter at such other address of which notice is given in accordance with the
provisions of this Section 5.4.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; two business days
after being deposited in the mail, postage prepaid, if mailed; when answered
back, if telexed; when receipt is acknowledged, if telecopied; and on the next
business day if timely delivered to an air courier guaranteeing overnight
delivery.
Copies of all such notices, demands, or other communications shall be
concurrently delivered by the person giving the same to the Trustee under the
Indenture, at the address specified in such Indenture.
5.5 Successor and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors, assigns and transferees of each of the
parties, including, without limitation and without the need for an express
assignment, subsequent Holders; provided that nothing herein shall be deemed to
permit any assignment, transfer or other disposition of Registrable Securities
in violation of the terms of the Purchase Agreement or the Indenture. If any
transferee of any Holder shall acquire Registrable Securities, in any manner,
whether by operation of law or otherwise, such Registrable Securities shall be
held subject to all of the terms of this Agreement, and by taking and holding
such Registrable Securities such person shall be conclusively deemed to have
agreed to be bound by and to perform all of the terms and provisions of this
Agreement, including the restrictions on resale
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set forth in this Agreement and, if applicable, the Purchase Agreement, and such
person shall be entitled to receive the benefits hereof.
5.6 Third Party Beneficiaries. The Initial Purchaser (even if the
Initial Purchaser is not Holders of Registrable Securities) shall be third party
beneficiaries to the agreements made hereunder between the Company, on the one
hand, and the Holders, on the other hand, and shall have the right to enforce
such agreements directly to the extent they deem such enforcement necessary or
advisable to protect their rights or the rights of Holders hereunder. Each
Holder of Registrable Securities shall be a third party beneficiary to the
agreements made hereunder between the Company, on the one hand, and the Initial
Purchaser, on the other hand, and shall have the right to enforce such
agreements directly to the extent it deems such enforcement necessary or
advisable to protect its rights hereunder.
5.7 Specific Enforcement. Without limiting the remedies available to
the Initial Purchaser and the Holders, the Company acknowledges that any failure
by the Company to comply with its obligations under Sections 2.1 through 2.4
hereof may result in material irreparable injury to the Initial Purchaser or the
Holders for which there is no adequate remedy at law, that it would not be
possible to measure damages for such injuries precisely and that, in the event
of any such failure, the Initial Purchaser or any Holder may obtain such relief
as may be required to specifically enforce the Company's obligations under
Sections 2.1 through 2.4 hereof.
5.8 Restriction on Resales. Until the expiration of two years after
the original issuance of the Securities, the Company will not, and will cause
their "affiliates" (as such term is defined in Rule 144(a)(1) under the 1933
Act) not to, resell any Securities which are "restricted securities" (as such
term is defined under Rule 144(a)(3) under the 1933 Act) that have been
reacquired by any of them and shall immediately upon any purchase of any such
Securities submit such Securities to the Trustee for cancellation.
5.9 Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
5.10 Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
5.11 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO THE
PRINCIPLES OF CONFLICT OF LAWS THEREOF.
5.12 Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other
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respect and of the remaining provisions contained herein shall not be affected
or impaired thereby.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
CENTURY COMMUNICATIONS CORP.
By: /s/ Clifford A. Bail
-------------------------------------
Name: Clifford A. Bail
Title: Vice President-Legal Affairs
and Corporate Counsel
Confirmed and accepted as
of the date first above
written:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ Eric Federman
-----------------------------------
Name: Eric Federman
Title: Authorized Signatory
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Exhibit A
FORM OF OPINION OF COUNSEL
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Merrill Lynch World Headquarters
North Tower
World Financial Center
New York, New York 10281-1209
Ladies and Gentlemen:
We have acted as counsel for Century Communications Corp., a New Jersey
corporation (the "Company"), in connection with the sale by the Company to the
Initial Purchaser (as defined below) of $605,000,000 aggregate principal amount
at maturity of Senior Discount Notes due 2008 (the "Notes") of the Company
pursuant to the Purchase Agreement dated January 8, 1998 (the "Purchase
Agreement") between the Company and Merrill Lynch, Pierce, Fenner & Smith
Incorporated (the "Initial Purchaser") and the filing by the Company of an
Exchange Offer Registration Statement (the "Registration Statement") in
connection with an Exchange Offer to be effected pursuant to the Registration
Rights Agreement (the "Registration Rights Agreement"), dated January 15, 1998,
between the Company and the Initial Purchaser. This opinion is furnished to you
pursuant to Section 3(f)(B) of the Registration Rights Agreement. Unless
otherwise defined herein, capitalized terms used in this opinion that are
defined in the Registration Rights Agreement are used herein as so defined.
We have examined such documents, records and matters of law as we have
deemed necessary for purposes of this opinion. In rendering this opinion, as to
all matters of fact relevant to this opinion, we have assumed the completeness
and accuracy of, and are relying solely upon, the representations and warranties
of the Company set forth in the Purchase Agreement and the statements set forth
in certificates of public officials and officers of the Company, without making
any independent investigation or inquiry with respect to the completeness or
accuracy of such representations, warranties or statements, other than a review
of the certificate of incorporation, by-laws and relevant minute books of the
Company.
Based on and subject to the foregoing, we are of the opinion that:
1. The Exchange Offer Registration Statement and the
Prospectus (other than the financial statements, notes or schedules thereto and
other financial data and supplemental schedules included or incorporated by
reference therein or omitted therefrom and the Form T-1, as to which such
counsel need express no opinion), comply as to form in
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2
all material respects with the requirements of the 1933 Act and the applicable
rules and regulations promulgated under the 1933 Act.
2. We have participated in the preparation of the Registration
Statement and the Prospectus and in the course thereof have had discussions with
representatives of the Underwriters, officers and other representatives of the
Company and [name of accounting firm], the Company's independent public
accountants, during which the contents of the Registration Statement and the
Prospectus were discussed. We have not, however, independently verified and are
not passing upon, and do not assume any responsibility for, the accuracy,
completeness or fairness of the statements contained in the Registration
Statement and the Prospectus. Based on our participation as described above,
nothing has come to our attention that would lead us to believe that the
Registration Statement (except for financial statements and schedules and other
financial data included therein as to which we make no statement) contained an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not misleading
or that the Prospectus or any amendment or supplement thereto (except for
financial statements and schedules and other financial data included therein, as
to which such counsel need make no statement), at the time the Prospectus was
issued, at the time any such amended or supplemented Prospectus was issued or at
the Closing Date, included or includes an untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
This opinion is being furnished to you solely for your benefit in
connection with the transactions contemplated by the Registration Rights
Agreement, and may not be used for any other purpose or relied upon by any
person other than you. Except with our prior written consent, the opinions
herein expressed are not to be used, circulated, quoted or otherwise referred to
in connection with any transactions other than those contemplated by the
Registration Rights Agreement by or to any other person.
Very truly yours,
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LETTER OF TRANSMITTAL
TO TENDER IN RESPECT OF THE
OFFER TO EXCHANGE ANY AND ALL OUTSTANDING
SENIOR DISCOUNT NOTES DUE JANUARY 15, 2008,
SERIES A, WHICH HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT, FOR SENIOR DISCOUNT NOTES
DUE JANUARY 15, 2008, SERIES B, WHICH
HAVE BEEN REGISTERED UNDER THE
SECURITIES ACT, OF CENTURY COMMUNICATIONS CORP.
PURSUANT TO THE PROSPECTUS, DATED , 1998
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON , 1998,
UNLESS EXTENDED AS PROVIDED IN THE PROSPECTUS (THE "EXPIRATION DATE"). TENDERS
MAY BE WITHDRAWN AT ANY TIME PRIOR TO 5:00 P.M., NEW YORK CITY TIME, ON THE
EXPIRATION DATE.
The Exchange Agent for the Exchange Offer is:
_________________________________
(For Eligible Institutions and Withdrawal Notices Only)
Facsimile Transmission Number ________________
Confirm by Telephone:
_________________
By Registered or Certified Mail,
By Hand or By Overnight Courier:
Attention: ____________________
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DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET
FORTH ABOVE, OR TRANSMISSION OF INSTRUCTIONS VIA A FACSIMILE NUMBER OTHER THAN
AS LISTED ABOVE, WILL NOT CONSTITUTE A VALID DELIVERY.
All capitalized terms used herein and not otherwise defined shall have
the respective meanings ascribed to them in the Prospectus, dated ,
1998, of Century Communications Corp. (the "Company") (as it may be supplemented
from time to time, the "Prospectus").
The undersigned acknowledges that he or she has received the
Prospectus and this Letter of Transmittal (which together constitute the
"Exchange Offer"), to exchange $1,000 principal amount at maturity of the
Company's Senior Discount Notes due January 15, 2008, Series B (the "New
Notes"), which have been registered under the Securities Act of 1933, as amended
(the "Securities Act"), for each $1,000 principal amount at maturity of the
Company's outstanding Senior Discount Notes due January 15, 2008, Series A (the
"Existing Notes"), which have not been registered under the Securities Act, from
the holders thereof.
This Letter of Transmittal is to be used by holders of Existing Notes
to accept the Exchange Offer if: (i) tender of Existing Notes is to be made
according to the Automated Tender Offer Program ("ATOP") of the Depository Trust
Company ("DTC"), for which the transaction is eligible, pursuant to the
procedures set forth in the Prospectus under the caption "Procedures for
Tendering Existing Notes--Tendering Existing Notes--Notes held through DTC";
(ii) certificates representing Existing Notes are to be physically delivered to
the Exchange Agent herewith by such holders, pursuant to the procedures set
forth in the Prospectus under the caption "Procedures for Tendering Existing
Notes--Tendering Existing Notes--Notes held by Holders"; or (iii) tender of
Existing Notes is to be made according to the guaranteed delivery procedures set
forth in the Prospectus under the caption "Procedures for Tendering Existing
Notes--Guaranteed Delivery Procedures." NOTWITHSTANDING THE FOREGOING, VALID
ACCEPTANCE OF THE TERMS OF THE EXCHANGE OFFER MAY BE EFFECTED BY A PARTICIPANT
IN DTC (A "DTC PARTICIPANT") TENDERING EXISTING NOTES THROUGH ATOP WHERE THE
EXCHANGE AGENT RECEIVES AN AGENT'S MESSAGE (AS DEFINED IN THE PROSPECTUS) PRIOR
TO THE EXPIRATION DATE. ACCORDINGLY, SUCH DTC PARTICIPANT MUST ELECTRONICALLY
TRANSMIT ITS ACCEPTANCE TO DTC THROUGH ATOP, AND THEN DTC WILL EDIT AND VERIFY
THE ACCEPTANCE, EXECUTE A BOOK-ENTRY DELIVERY TO THE EXCHANGE AGENT'S ACCOUNT AT
DTC AND SEND AN AGENT'S MESSAGE TO THE EXCHANGE AGENT FOR ITS ACCEPTANCE. BY
TENDERING THROUGH ATOP, DTC PARTICIPANTS WILL EXPRESSLY ACKNOWLEDGE RECEIPT OF
THIS LETTER OF TRANSMITTAL AND AGREE TO BE BOUND BY ITS TERMS AND THE COMPANY
WILL BE ABLE TO ENFORCE SUCH AGREEMENT AGAINST SUCH DTC PARTICIPANTS.
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DELIVERY OF DOCUMENTS TO DTC DOES NOT CONSTITUTE DELIVERY TO THE
EXCHANGE AGENT.
DTC Participants who wish to cause their Existing Notes to be
tendered, but who cannot transmit their acceptances through ATOP prior to the
Expiration Date, may effect a tender in accordance with the guaranteed delivery
procedures set forth in the Prospectus under the caption "Procedures for
Tendering Existing Notes--Guaranteed Delivery Procedures--Notes held through
DTC." Holders who wish to tender their Existing Notes but (i) whose Existing
Notes are not immediately available and will not be available for tendering
prior to the Expiration Date, or (ii) who cannot deliver their Existing Notes,
the Letter of Transmittal, or any other required documents to the Exchange Agent
prior to the Expiration Date, may effect a tender in accordance with the
guaranteed delivery procedures set forth in the Prospectus under the caption
"Procedures for Tendering Existing Notes--Guaranteed Delivery Procedures--Notes
held by Holders."
For each Existing Note accepted for exchange, the holder will receive
a New Note having a principal amount at maturity equal to that of the
surrendered Existing Note. No interest payments will be made on the New Notes.
If (i) the Exchange Offer Registration Statement is not filed with the
Commission on or prior to the 90th day following January 15, 1998, the issue
date of the Existing Notes (the "Initial Issue Date"), (ii) the Exchange Offer
Registration Statement is not declared effective on or prior to the 180th day
following the Initial Issue Date, (iii) the Exchange Offer is not consummated on
or prior to the 210th day following the Initial Issue Date, or (iv) the Shelf
Registration Statement is required to be filed because of the request of Merrill
Lynch & Co. or other specified holder, and such Shelf Registration Statement is
not filed on or prior to the 240th day following the Initial Issue Date, then
the Company shall pay as liquidated damages interest on the Existing Notes
(except in the case of clause (iv), in which case only the Existing Notes which
have not been exchanged in the Exchange Offer) at a rate of 0.25% per annum.
Upon (w) the filing of the Exchange Offer Registration Statement in the case of
clause (i) above, (x) the effectiveness of the Exchange Offer Registration
Statement in the case of clause (ii) above, (y) the date of the consummation of
the Exchange Offer or the effectiveness of the Shelf Registration Statement in
the case of clause (iii) above, or (z) the effectiveness of the Shelf
Registration Statement, in the case of clause (iv) above, the rate of such
payment to be made on the Existing Notes from the date of such filing,
effectiveness or the date of such consummation or effectiveness, as the case may
be, will be reduced to zero. Holders of Existing Notes accepted for exchange
will be deemed to have waived the right to receive any other payments of
liquidated damages on the Existing Notes.
The Company reserves the right, at any time or from time to time, to
extend the Exchange Offer at its discretion, in which event the term "Expiration
Date" shall mean the latest time and date to which the Exchange Offer is
extended. The Company shall notify the holders of the Existing Notes of any
extension by means of a press release or other
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public announcement prior to 9:00 a.m., New York City time, on the next business
day after the previously scheduled Expiration Date.
The undersigned has completed the appropriate boxes below and signed
this Letter of Transmittal to indicate the action the undersigned desires to
take with respect to the Exchange Offer.
List below the Existing Notes to which this Letter of Transmittal
relates. If the space provided below is inadequate, the certificate numbers and
principal amount of Existing Notes should be listed on a separate signed
schedule affixed hereto. Tenders of Existing Notes will be accepted only in
principal amounts at maturity equal to $1,000 or integral multiples thereof.
DESCRIPTION OF EXISTING NOTES
Name(s) and Address(es) of 1 2 3
Registered Holder(s)
(Please fill in, if blank)
Certificate* Aggregate Principal
Number(s) Principal Amount Amount At
At Maturity of Maturity
Old Note(s) Tendered**
______________ ________________ ______________
______________ ________________ ______________
______________ ________________ ______________
The names and addresses of the registered holders of Existing Notes
should be printed, if not already printed above, exactly as they appear on the
Existing Notes tendered hereby. The Existing Notes and the principal amount of
such Existing Notes that the undersigned wishes to tender should be indicated in
the appropriate boxes.
________ CHECK HERE IF TENDERED EXISTING NOTES ARE ENCLOSED
HEREWITH.
____________________
* Need not be completed if Existing Notes are being tendered by book-entry
transfer or in accordance with DTC's ATOP procedures for transfer.
** Unless otherwise indicated in this column, a holder will be deemed to have
tendered ALL of the Existing Notes represented by the Existing Notes indicated
in column 2. See Instruction 2. Existing Notes tendered hereby must be in
denominations of principal amount at maturity of $1,000 and any integral
multiple thereof. See Instruction 1.
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________ CHECK HERE IF TENDERED EXISTING NOTES ARE BEING
DELIVERED PURSUANT TO A NOTICE OF GUARANTEED DELIVERY
PREVIOUSLY SENT TO THE EXCHANGE AGENT AND COMPLETE
THE FOLLOWING:
Name(s) of Registered Holder(s)_______________________________________
Window Ticket Number (if any)_________________________________________
Date of Execution of Notice of Guaranteed Delivery____________________
Name of Eligible Institution that Guaranteed Delivery_________________
______________________________________________________________________
NOTE: SIGNATURES MUST BE PROVIDED BELOW
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
Ladies and Gentlemen:
Upon the terms and subject to the conditions set forth in the
Prospectus, receipt of which is hereby acknowledged, the undersigned hereby
tenders to the Company the aggregate principal amount at maturity of Existing
Notes indicated above. Subject to, and effective upon, the acceptance for
exchange of the Existing Notes tendered hereby, the undersigned hereby sells,
assigns and transfers to, or upon the order of, the Company all right, title and
interest in and to such Existing Notes as are being tendered hereby.
The undersigned hereby represents and warrants that the undersigned
has full power and authority to tender, sell, assign and transfer the Existing
Notes tendered hereby and that, when (and to the extent that) such tendered
Existing Notes are accepted for exchange by the Company, the Company will
acquire good and unencumbered title thereto, free and clear of all liens,
restrictions, charges and encumbrances and not subject to any adverse claim or
right. The undersigned will, upon request, execute and deliver any additional
documents deemed by the Exchange Agent or by the Company to be necessary or
desirable to complete the sale, assignment and transfer of the Existing Notes
tendered hereby.
The undersigned hereby further represents that (i) any New Notes
acquired in exchange for Existing Notes tendered hereby will have been acquired
in the ordinary course of business of the person receiving such New Notes,
whether or not such person is the undersigned, (ii) such holder or any such
other person is not engaging in, has no arrangement or understanding with any
person to participate in, and does not intend to engage in, any distribution of
such New Notes, (iii) it is not a broker-dealer tendering Existing Notes
acquired directly from the Company for its own account, and (iv) neither such
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<PAGE>
<PAGE>
holder nor any such other person is an "affiliate" (an "Affiliate") as defined
in Rule 405 under the Securities Act of the Company, or if it is such an
Affiliate, that it will comply with the registration and prospectus delivery
requirements of the Securities Act to the extent applicable to it.
The undersigned also acknowledges that the Exchange Offer is being
made based on no-action letters issued by the Staff of the Securities and
Exchange Commission (the "Commission") to third parties with respect to similar
transactions, including Exxon Capital Holding Corporation (available May 13,
1988), Morgan Stanley & Co. Incorporated (available June 5, 1991) and similar
letters, that the New Notes issued pursuant to the Exchange Offer in exchange
for the Existing Notes may be offered for resale, resold and otherwise
transferred by holders thereof (other than any such holder that is an Affiliate
of the Company) without compliance with the registration and prospectus delivery
requirements of the Securities Act, provided that such New Notes are acquired in
the ordinary course of such holders' business and such holders are not engaging
in, have no arrangement or understanding with any person to participate in, and
do not intend to engage in, any distribution of such New Notes. However, the
undersigned acknowledges that the Company has not sought a no-action letter with
respect to the Exchange Offer and that there can be no assurance that the Staff
of the Commission would make a similar determination with respect to the
Exchange Offer. Any holder who tenders in the Exchange Offer for the purpose of
participating in a distribution of New Notes (i) cannot rely on such an
interpretation by the Staff of the Commission, (ii) will not be able to validly
tender Existing Notes in the Exchange Offer and (iii) must comply with the
registration and prospectus delivery requirements of the Securities Act in
connection with any secondary resale transactions. If the undersigned is not a
broker-dealer, the undersigned represents that it is not engaged in, has no
arrangement or understanding with any person to participate in, and does not
intend to engage in, a distribution of New Notes. In addition, if the
undersigned is a broker-dealer that will receive New Notes for its own account
in exchange for Existing Notes that were acquired as a result of market-making
activities or other trading activities, it acknowledges that it will deliver a
prospectus meeting the requirements of the Securities Act in connection with any
resales of such New Notes; provided, however, that by so acknowledging and by
delivering a prospectus, the undersigned will not be deemed to admit that it is
an "underwriter" within the meaning of the Securities Act.
The undersigned may, if and only if, it would not receive freely
tradeable New Notes in the Exchange Offer or is not eligible to participate in
the Exchange Offer, elect to have its Existing Notes registered in the shelf
registration described in the Registration Rights Agreement, dated January 15,
1998, between the Company and Merrill Lynch, Pierce, Fenner & Smith Incorporated
in the form filed as Exhibit 99.1 to the Registration Statement.
All authority conferred or agreed to be conferred by this Letter of
Transmittal and every obligation of the undersigned hereunder shall be binding
upon the successors, assigns, heirs, executors, administrators, trustees in
bankruptcy and legal representatives of the undersigned and shall not be
affected by, and shall survive, the death or incapacity of the undersigned. This
tender may be withdrawn only in accordance with the procedures set forth
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<PAGE>
<PAGE>
in the Prospectus under the caption "Procedures for Tendering Existing Notes--
Withdrawal Rights." See Instruction 11.
Unless otherwise indicated herein under "Special Issuance
Instructions," the undersigned hereby requests that any Existing Notes
representing principal amounts not tendered or not accepted for exchange be
issued in the name(s) of the undersigned (and, in the case of Existing Notes
tendered through ATOP, by credit to the account of DTC). Similarly, unless
otherwise indicated herein under "Special Delivery Instructions," the
undersigned hereby requests that any Existing Notes representing principal
amounts not tendered or not accepted for payment and New Notes issued in
exchange for tendered Existing Notes be delivered to the undersigned at the
address shown below the undersigned's signature(s). In the event that the
"Special Issuance Instructions" box or the "Special Delivery Instructions" box
is, or both are, completed, the undersigned hereby requests that any Existing
Notes representing principal amounts not tendered or not accepted for exchange
be issued in the name(s) of, certificates for such Existing Notes be delivered
to, and the New Notes be issued in connection with the Exchange Offer, to the
person(s) at the address(es) so indicated, and credit for Existing Notes
representing principal amounts not tendered be made to the account of DTC, as
applicable. The undersigned recognizes that the Company has no obligation
pursuant to the "Special Issuance Instructions" box to transfer any Existing
Notes from the name of the registered holder(s) thereof if the Company does not
accept for exchange any of the principal amount of such Existing Notes so
tendered.
The undersigned acknowledges that the Exchange Offer is subject to the
more detailed terms set forth in the Prospectus and, in case of any conflict
between the terms of the Prospectus and this Letter of Transmittal, the
Prospectus shall prevail.
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<PAGE>
THE UNDERSIGNED, BY COMPLETING THE BOX ENTITLED "DESCRIPTION OF
EXISTING NOTES" ABOVE AND SIGNING THIS LETTER, WILL BE DEEMED TO HAVE TENDERED
THE EXISTING NOTES AS SET FORTH IN SUCH BOX ABOVE.
- ------------------------------------- ---------------------------------------
SPECIAL ISSUANCE INSTRUCTIONS SPECIAL DELIVERY INSTRUCTIONS
(See Instructions 3 and 4) (See Instructions 3 and 4)
To be completed ONLY if certificates To be completed ONLY if certificates
for Existing Notes not exchanged for Existing Notes not exchanged
and/or New Notes are to be issued in and/or New Notes are to be sent to
the name of someone other than the someone other than the person or
person or persons whose signature(s) persons whose signature(s) appear(s)
appear(s) on this Letter below, or if on this Letter below or to such person
Existing Notes delivered by book-entry or persons at an address other than
transfer which are not accepted for shown in the box entitled "Description
exchange are to be returned by credit of Existing Notes" on this Letter
to an account maintained at the above.
Book-Entry Transfer Facility other
than the account indicated above. Mail: New Notes and/or Existing
Notes to:
Issue: New Notes and/or Existing Name(s)
Notes to: --------------------------------
(Please Type or Print)
Name(s)
------------------------------ --------------------------------
(Please Type or Print) (Please Type or Print)
(Please Type or Print) Address
-------------------------
Address
------------------------------ --------------------------------
(Zip Code) (Zip Code)
(Employer Identification or Social
Security Number)
Credit unexchanged Existing Notes
delivered by book-entry transfer to
the Book-Entry Transfer Facility
account set forth below.
(Book-Entry Transfer Facility
Account Number, if applicable)
- ------------------------------------- ---------------------------------------
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<PAGE>
<PAGE>
IMPORTANT: EITHER (1) (A) THIS LETTER OF TRANSMITTAL (OR A FACSIMILE
HEREOF) TOGETHER WITH CERTIFICATES REPRESENTING EXISTING NOTES OR (B) A
BOOK-ENTRY CONFIRMATION INCLUDING BY MEANS OF AN AGENT'S MESSAGE, MUST BE
RECEIVED BY THE EXCHANGE AGENT PRIOR TO 5:00 P.M., NEW YORK CITY TIME, ON THE
EXPIRATION DATE TOGETHER WITH ALL OTHER REQUIRED DOCUMENTS, OR (2) THE TENDERING
HOLDER MUST COMPLY WITH THE GUARANTEED DELIVERY PROCEDURES SET FORTH HEREIN. BY
TENDERING THROUGH ATOP, DTC PARTICIPANTS WILL EXPRESSLY ACKNOWLEDGE RECEIPT OF
THIS LETTER OF TRANSMITTAL AND AGREE TO BE BOUND BY ITS TERMS AND THE COMPANY
WILL BE ABLE TO ENFORCE SUCH AGREEMENT AGAINST SUCH DTC PARTICIPANTS.
PLEASE READ THIS ENTIRE LETTER OF TRANSMITTAL
CAREFULLY BEFORE COMPLETING ANY BOX ABOVE.
PLEASE SIGN HERE
(TO BE COMPLETED BY ALL TENDERING HOLDERS)
1998
- ----------------------------------- ----------------------------------
1998
- ----------------------------------- ----------------------------------
1998
- ----------------------------------- ----------------------------------
Signature(s) of Owner Date
Area Code and Telephone Number
-------------------------------------
If a holder is tendering any Existing Notes, this Letter of
Transmittal must be signed by the registered holder(s) as the name(s) appear(s)
on the certificate(s) for the Existing Notes or by any person(s) authorized to
become registered holder(s) by endorsements and documents transmitted herewith.
If signature is by a trustee, executor, administrator, guardian, officer or
other person acting in a fiduciary or representative capacity, please set forth
full title. See Instruction 3.
Name(s)
----------------------------------------------------------------
(Please Type or Print)
Capacity
---------------------------------------------------
Address
----------------------------------------------------
(Including Zip Code)
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<PAGE>
<PAGE>
Employer Identification or Social Security No.
------------------------
(Please complete Substitute Form W-9)
SIGNATURE GUARANTEE
(IF REQUIRED BY INSTRUCTIONS 3)
Signature(s) Guaranteed by an Eligible Institution:
Authorized Signature
-------------------------------------------------
Title
-------------------------------------------------------
Name and Firm
--------------------------------------------------------
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE EXCHANGE OFFER
1. SIGNATURE GUARANTIES.
All Signatures on this Letter of Transmittal must be guaranteed by a
financial institution that is a member of the Securities Transfer Agents
Medallion Program, the Stock Exchange Medallion Program or the New York Stock
Exchange, Inc. ("NYSE") Medallion Signature Program (each of the foregoing being
referred to as an "Eligible Institution"), unless the Existing Notes tendered
hereby are tendered (i) by a registered holder of Existing Notes (or by a DTC
Participant whose name appears on a security position listing as the owner of
such Existing Notes) who has not completed either the box entitled "Special
Delivery Instructions" or the box entitled "Special Issuance Instructions" on
this Letter of Transmittal, or (ii) for the account of an Eligible Institution.
If the Existing Notes are registered in the name of a person other than the
signer of this Letter of Transmittal or if Existing Notes not accepted for
exchange or not tendered are to be returned to a person other than the
registered holder, then the signatures on this Letter of Transmittal must be
guaranteed by an Eligible Institution as described above. See Instruction 5.
2. DELIVERY OF LETTER OF TRANSMITTAL AND EXISTING NOTES.
This Letter of Transmittal is to be completed by holders of Existing Notes
to accept the Exchange Offer if: (i) tender of Existing Notes is to be made by
DTC Participants through ATOP, for which the transaction is eligible, pursuant
to the procedures set forth in the Prospectus under the caption "Procedures for
Tendering Existing Notes--Tendering Existing Notes--Notes held through DTC";
(ii) certificates representing Existing Notes are to be physically delivered to
the Exchange Agent herewith by such holders, pursuant to the procedures set
forth in the Prospectus under the caption "Procedures for Tendering Existing
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<PAGE>
Notes--Tendering Existing Notes--Notes held by Holders"; or (iii) tender of
Existing Notes is to be made according to the guaranteed delivery procedures set
forth in the Prospectus under the caption "Procedures for Tendering Existing
Notes--Guaranteed Delivery Procedures." NOTWITHSTANDING THE FOREGOING, VALID
ACCEPTANCE OF THE TERMS OF THE EXCHANGE OFFER MAY BE EFFECTED BY A DTC
PARTICIPANT TENDERING EXISTING NOTES THROUGH ATOP WHERE THE EXCHANGE AGENT
RECEIVES AN AGENT'S MESSAGE PRIOR TO THE EXPIRATION DATE. ACCORDINGLY, SUCH DTC
PARTICIPANT MUST ELECTRONICALLY TRANSMIT ITS ACCEPTANCE TO DTC THROUGH ATOP, AND
THEN DTC WILL EDIT AND VERIFY THE ACCEPTANCE, EXECUTE A BOOK-ENTRY DELIVERY TO
THE EXCHANGE AGENT'S ACCOUNT AT DTC AND SEND AN AGENT'S MESSAGE TO THE EXCHANGE
AGENT FOR ITS ACCEPTANCE. BY TENDERING THROUGH ATOP, DTC PARTICIPANTS WILL
EXPRESSLY ACKNOWLEDGE RECEIPT OF THIS LETTER OF TRANSMITTAL AND AGREE TO BE
BOUND BY ITS TERMS AND THE COMPANY WILL BE ABLE TO ENFORCE SUCH AGREEMENT
AGAINST SUCH DTC PARTICIPANTS.
In order to validly tender Existing Notes pursuant to the Exchange Offer,
either (i) (A) this Letter of Transmittal, or a facsimile hereof, together with
certificates representing Existing Notes, or (B) a Book-Entry Confirmation,
including by means of an Agent's Message, of the transfer into the Exchange
Agent's account at DTC of all Existing Notes delivered electronically must be
received by the Exchange Agent at its address set forth herein prior to 5:00
p.m., New York City time, on the Expiration Date, together with all other
required documents, or (ii) the tendering holder must comply with the guaranteed
delivery procedures set forth below. DELIVERY OF DOCUMENTS TO DTC DOES NOT
CONSTITUTE DELIVERY TO THE EXCHANGE AGENT.
If a holder or DTC Participant desires to tender Existing Notes pursuant to
the Exchange Offer and time will not permit this Letter of Transmittal,
certificates representing such Existing Notes and all other required documents
to reach the Exchange Agent, or the procedures for book-entry transfer,
including those with respect to tenders through ATOP, cannot be completed, prior
to the Expiration Date, such holder or DTC Participant, as the case may be, must
tender such Existing Notes pursuant to the guaranteed delivery procedures set
forth in the Prospectus under the caption "Procedures for Tendering Existing
Notes--Guaranteed Delivery Procedures." Pursuant to such procedures (i) such
tender must be made by or through an Eligible Institution; (ii) a properly
completed and duly executed Notice of Guaranteed Delivery, substantially in the
form provided by the Company, must be received by the Exchange Agent either by
hand delivery, mail, facsimile transmission or overnight courier, prior to the
Expiration Date; and (iii) within three NYSE trading days after the date of the
execution of the Notice of Guaranteed Delivery, (A) holders must deliver to the
Exchange Agent a properly completed and duly executed Letter of Transmittal, as
well as the certificate(s) representing all tendered Existing Notes in proper
form for transfer, and all other documents required by the Letter of
Transmittal, or (B) DTC Participants must effect a Book-Entry Confirmation,
including through ATOP by means of an
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<PAGE>
<PAGE>
Agent's Message, of the transfer of such Existing Notes into the Exchange
Agent's account at DTC as set forth in the Prospectus.
THE METHOD OF DELIVERY OF THIS LETTER OF TRANSMITTAL, THE EXISTING NOTES
AND ALL OTHER REQUIRED DOCUMENTS, INCLUDING DELIVERY THROUGH DTC AND ANY
ACCEPTANCE OR AGENT'S MESSAGE TRANSMITTED THROUGH ATOP, IS AT THE OPTION AND
RISK OF THE TENDERING HOLDER. If delivery is by mail, registered mail with
return receipt requested, properly insured, is recommended. In all cases,
sufficient time should be allowed for such documents to reach the Exchange Agent
prior to the Expiration Date. Except as otherwise provided in this Instruction
2, delivery will be deemed made only when actually received by the Exchange
Agent.
No alternative, conditional or contingent tenders will be accepted. All
tendering holders, by execution of this Letter of Transmittal (or a facsimile
hereof), waive any right to receive any notice of the acceptance of their
Existing Notes for exchange.
3. INADEQUATE SPACE.
If the space provided herein is inadequate, the certificate numbers and/or
the principal amount represented by Existing Notes should be listed on a
separate signed schedule attached hereto.
4. PARTIAL TENDERS.
Tenders of Existing Notes will be accepted only in principal amounts equal
to $1,000 or integral multiples thereof. In the case of a partial tender of
Existing Notes, as soon as practicable after the Expiration Date, new
certificates for the remainder of the Existing Notes that were evidenced by such
holder's old certificates will be issued in the name of and sent to such holder,
unless otherwise provided in the appropriate "special instruction" box or boxes
on this Letter of Transmittal. Unless otherwise indicated in the table entitled
"Description of Existing Notes" under the column heading "Principal Amount
Tendered," the entire principal amount that is represented by Existing Notes
delivered to the Exchange Agent will be deemed to have been tendered.
5. SIGNATURES ON LETTER OF TRANSMITTAL; INSTRUMENTS OF TRANSFER AND
ENDORSEMENTS.
If this Letter of Transmittal is signed by the registered holder of the
Existing Notes tendered hereby, the signature must correspond exactly with the
name as written on the face of the certificates without alteration, enlargement
or any change whatsoever. If this Letter of Transmittal is signed by a DTC
Participant whose name is shown as the owner of the Existing Notes tendered
hereby, the signature must correspond with the name shown on the security
position listing as the owner of the Existing Notes.
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<PAGE>
<PAGE>
If any tendered Existing Notes are owned of record by two or more joint
owners, all such owners must sign this Letter of Transmittal. If any tendered
Existing Notes are registered in different names on several certificates, it
will be necessary to complete, sign and submit as many separate copies of the
Letter of Transmittal as there are different registrations or certificates.
When this Letter of Transmittal is signed by the registered holder or
holders of the Existing Notes specified herein and tendered hereby, no
endorsements of Existing Notes or separate instruments of transfer are required.
If, however, the New Notes are to be issued, or any tendered Existing Notes are
to be reissued, to a person other than the registered holder, then signatures on
such Existing Notes or instruments of transfer are required and must be
guaranteed by an Eligible Institution.
If this Letter of Transmittal is signed by a person other than the
registered holder or holders of any certificate(s) specified herein, such
certificate(s) must be endorsed or accompanied by appropriate bond powers, in
either case signed exactly as the name or names of the registered holder or
holders appear(s) on the certificate(s) and signatures on such certificate(s)
must be guaranteed by an Eligible Institution.
If this Letter of Transmittal or any certificates or bond powers are signed
by trustees, executors, administrators, guardians, attorneys-in-fact, agents,
officers of corporations or others acting in a fiduciary or representative
capacity, such persons should so indicate when signing, and, unless waived by
the Company, proper evidence satisfactory to the Company of their authority to
so act must be submitted.
IF THIS LETTER OF TRANSMITTAL IS SIGNED OTHER THAN BY THE REGISTERED
HOLDER(S) OF THE EXISTING NOTES LISTED, THE EXISTING NOTES MUST BE ENDORSED OR
ACCOMPANIED BY AN APPROPRIATE WRITTEN INSTRUMENT OR INSTRUMENTS OF TRANSFER, IN
EITHER CASE SIGNED EXACTLY AS THE NAME OR NAMES OF THE REGISTERED HOLDER(S)
APPEAR ON THE EXISTING NOTES AND SIGNATURE(S) ON SUCH EXISTING NOTES OR
INSTRUMENTS OF TRANSFER ARE REQUIRED AND MUST BE GUARANTEED BY AN ELIGIBLE
INSTITUTION, UNLESS THE SIGNATURE IS THAT OF AN ELIGIBLE INSTITUTION.
6. SPECIAL ISSUANCE AND DELIVERY INSTRUCTIONS.
Tendering holders of Existing Notes should indicate in the applicable box
the name and address to which New Notes issued pursuant to the Exchange Offer
and/or substitute certificates evidencing Existing Notes not exchanged are to be
issued or sent, if different from the name or address of the person signing this
Letter of Transmittal. In the case of issuance in a different name, the employer
identification or social security number of the person named must also be
indicated. Holders tendering Existing Notes by book-entry transfer may request
that Existing Notes not exchanged be credited to such account maintained at DTC
as such holder may designate hereon. If no such instructions are given,
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<PAGE>
<PAGE>
such Existing Notes exchanged will be returned to the name and address of the
person signing this Letter of Transmittal.
7. TRANSFER TAXES.
Holders who tender their Existing Notes for exchange will not be obligated
to pay any transfer taxes in connection therewith, except that holders who
instruct the Company to register New Notes in the name of, or request that
Existing Notes not tendered or not accepted in the Exchange Offer be returned
to, a person other than the registered tendering holder will be responsible for
the payment of any applicable transfer tax thereon. If satisfactory evidence of
payment of such taxes or exemption therefrom is not submitted herewith, the
amount of such transfer taxes will be billed directly to such tendering holder.
Except as provided in this Instruction 7, it will not be necessary for
transfer tax stamps to be affixed to the Existing Notes specified in this Letter
of Transmittal.
8. WAIVER OF CONDITIONS.
The Company reserves the absolute right to waive satisfaction of any or all
conditions enumerated herein or in the Prospectus.
9. NO CONDITIONAL TENDERS.
No alternative, conditional, irregular or contingent tenders will be
accepted. All tendering holders of Existing Notes, by execution of this Letter
of Transmittal, shall waive the right to receive notice of the acceptance of
their Existing Notes for exchange.
Neither the Company, the Exchange Agent nor any other person is obligated
to give notice of any defect or irregularity with respect to any tender of
Existing Notes nor shall any of them incur any liability for failure to give any
such notice.
10. MUTILATED, LOST, STOLEN OR DESTROYED EXISTING NOTES.
Any holder whose Existing Notes have been mutilated, lost, stolen or
destroyed should contact the Exchange Agent at the address indicated above for
further instructions.
11. WITHDRAWAL OF TENDERS.
Tenders of Existing Notes may be withdrawn at any time prior to 5:00 p.m.,
New York City time, on the Expiration Date.
For a withdrawal of a tender of Existing Notes to be effective, a letter,
telex, telegram or facsimile transmission notice of withdrawal must be received
by the Exchange Agent at its address set forth above prior to 5:00 p.m., New
York City time, on the Expiration Date. Any such notice of withdrawal by a DTC
Participant must contain the
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<PAGE>
name and number of the DTC Participant, the principal amount due at the stated
maturity of Existing Notes to which such withdrawal related and the signature of
the DTC Participant. Any such notice of withdrawal by a holder of Existing Notes
must (i) specify the name of the person who tendered the Existing Notes to be
withdrawn, (ii) contain a description of the Existing Notes to be withdrawn
(including the certificate number or numbers and principal amount due at the
stated maturity of such Existing Notes) and (iii) be signed by the holder of
such Existing Notes in the same manner as the original signature on this Letter
of Transmittal (including any required signature guaranties), or be accompanied
by (x) documents of transfer in a form acceptable to the Company, in its sole
discretion and (y) a properly completed irrevocable proxy that authorized such
person to effect such revocation on behalf of such holder. Any Existing Notes so
withdrawn will be deemed not to have been validly tendered for exchange for
purposes of the Exchange Offer. Any Existing Notes which have been tendered for
exchange but which are not exchanged for any reason will be returned to the
holder thereof without cost to such holder as soon as practicable after
withdrawal, rejection of tender, or termination of the Exchange Offer. Properly
withdrawn Existing Notes may be retendered by following the procedures described
above at any time on or prior to 5:00 p.m., New York City time, on the
Expiration Date.
12. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES.
Questions relating to the procedure for tendering, as well as requests for
additional copies of the Prospectus and this Letter of Transmittal, may be
directed to the Exchange Agent, at the address and telephone number indicated
above.
IMPORTANT: IN ORDER TO VALIDLY TENDER EXISTING NOTES PURSUANT TO THE
EXCHANGE OFFER, EITHER (I) (A) THIS LETTER OF TRANSMITTAL (OR A FACSIMILE
HEREOF), TOGETHER WITH CERTIFICATES REPRESENTING EXISTING NOTES, OR (II) A
BOOK-ENTRY CONFIRMATION, INCLUDING BY MEANS OF AN AGENT'S MESSAGE, MUST BE
RECEIVED BY THE EXCHANGE AGENT PRIOR TO 5:00 P.M., NEW YORK CITY TIME, ON THE
EXPIRATION DATE, TOGETHER WITH ALL OTHER REQUIRED DOCUMENTS, OR (II) THE
TENDERING HOLDER MUST COMPLY WITH THE GUARANTEED DELIVERY PROCEDURES SET FORTH
HEREIN.
IMPORTANT TAX INFORMATION
Under current federal income tax law, a holder of New Notes is required to
provide the Company (as payor) with such holder's correct taxpayer
identification number ("TIN") on Substitute Form W-9 or otherwise establish a
basis for exemption from backup withholding to prevent backup withholding on
each payment in respect of interest thereon or gross proceeds thereof. If a
holder of New Notes is an individual, the TIN is such holder's social security
number. If the Company is not provided with the correct TIN, the holder of
Existing Notes and the holder of New Notes may be subject to a $50 penalty
imposed by the Internal Revenue Service ("IRS"). Accordingly, each prospective
holder of New Notes to be
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<PAGE>
issued pursuant to Special Issuance Instructions should complete the attached
Substitute Form W-9.
Certain holders of New Notes (including, among others, all corporations and
certain foreign individuals) are not subject to these backup withholding and
reporting requirements. Exempt prospective holders of New Notes should indicate
their exempt status on Substitute Form W-9. A foreign individual may qualify as
an exempt recipient by submitting to the Company, through the Exchange Agent, a
properly completed IRS Form W-8 (which the Exchange Agent will provide upon
request) signed under penalty of perjury, attesting to the holder's exempt
status. See the enclosed "Guidelines for Certification of Taxpayer
Identification Number on Substitute Form W-9" for additional instructions.
If backup withholding applies, the Company is required to withhold 31% of
any payment made to the holder of New Notes or other payee. Backup withholding
is not an additional federal income tax. Rather, the federal income tax
liability of persons subject to backup withholding will be reduced by the amount
of tax withheld. If withholding results in an overpayment of taxes, a refund may
be obtained from the IRS.
PURPOSE OF SUBSTITUTE FORM W-9
To prevent backup withholding on payments that are to be made with respect
to New Notes, each prospective holder of New Notes to be issued pursuant to
Special Issuance Instructions should provide the Company, through the Exchange
Agent, with either: (i) such prospective holder's correct TIN by completing the
form below certifying that the TIN provided on Substitute Form W-9 is correct
(or that such prospective holder is awaiting a TIN) and that (A) such
prospective holder has not been notified by the Internal Revenue Service that he
or she is subject to backup withholding as a result of a failure to report all
interest or dividends or (B) the Internal Revenue Service has notified such
prospective holder that he or she is no longer subject to backup withholding; or
(ii) an adequate basis for exemption.
WHAT NUMBER TO GIVE THE EXCHANGE AGENT
The prospective holder of New Notes is required to give the Exchange Agent
the TIN (e.g., social security number or employer identification number) of the
prospective record owner of the New Notes. If the New Notes will be held in more
than one name or are not held in the name of the actual owner, consult the
enclosed Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9 for additional guidance regarding which number to report.
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<PAGE>
<PAGE>
PAYER'S NAME: CENTURY COMMUNICATIONS CORP.
Part 1 -- PLEASE PROVIDE YOUR TIN IN Social Security Number
BOX AT RIGHT AND CERTIFY BY SIGNING
AND DATING BELOW
OR
Employer Identification Number
SUBSTITUTE
--------------------------------------------------------------------
Form W-9
--------------------------------------------------------------------
Part 2 -- Certification -- Under Penalties of Perjury, I certify that
(1) The number shown on this form is my current taxpayer identification
number (or I am waiting for a number to be issued to me) and (2) I am
not subject to backup withholding either because I have not been
notified by the Internal Revenue Service (the "IRS") that I am subject
to backup withholding as a result of a failure to report all interest
or dividends, or the IRS has notified me that I am no longer subject to
backup withholding.
-----------------------------------------------------------
Part 3 --
Awaiting TIN -
-----------------------------------------------------------
Department of the Treasury, Certificate Instructions -- You must cross out
Internal Revenue Service item (2) in Part 2 above if you have been
notified by the IRS that you are subject to
backup withholding because of underreporting
interest or dividends on your tax return.
However, if after being notified by the IRS that
you are subject to backup withholding you
receive another notification from the IRS
stating that you are no longer subject to backup
withholding, do not cross out item (2).
Payer's Request for Taxpayer SIGNATURE DATE
----------------------- -----------
Identification Number (TIN)
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP
WITHHOLDING OF 31% OF ANY PAYMENT MADE TO YOU PURSUANT TO THE EXCHANGE
OFFER. PLEASE REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION OF
TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL
DETAILS.
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<PAGE>
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED
THE BOX IN PART 3 OF SUBSTITUTE FORM W-9
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I CERTIFY UNDER PENALTIES OF PERJURY THAT A TAXPAYER IDENTIFICATION NUMBER HAS
NOT BEEN ISSUED TO ME, AND EITHER (A) I HAVE MAILED OR DELIVERED AN APPLICATION
TO RECEIVE A TAXPAYER IDENTIFICATION NUMBER TO THE APPROPRIATE INTERNAL REVENUE
SERVICE CENTER OR SOCIAL SECURITY ADMINISTRATION OFFICE OR (B) I INTEND TO MAIL
OR DELIVER SUCH AN APPLICATION IN THE NEAR FUTURE. I UNDERSTAND THAT, IF I DO
NOT PROVIDE A TAXPAYER IDENTIFICATION NUMBER TO THE PAYER WITHIN SIXTY (60)
DAYS, 31% OF ALL REPORTABLE PAYMENTS MADE TO ME THEREAFTER WILL BE WITHHELD
UNTIL I PROVIDE SUCH A NUMBER.
, 1998
- ------------------------------------- ---------------------------------
SIGNATURE DATE
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<PAGE>
<PAGE>
NOTICE OF GUARANTEED DELIVERY
TO TENDER IN RESPECT OF THE
OFFER TO EXCHANGE ANY AND ALL OUTSTANDING
SENIOR DISCOUNT NOTES DUE JANUARY 15, 2008, SERIES A,
WHICH HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT,
(INCLUDING THOSE IN BOOK-ENTRY FORM)
FOR
SENIOR DISCOUNT NOTES DUE JANUARY 15, 2008, SERIES B,
WHICH HAVE BEEN REGISTERED UNDER THE SECURITIES ACT,
OF
CENTURY COMMUNICATIONS CORP.
PURSUANT TO THE PROSPECTUS, DATED , 1998
This form or one substantially equivalent hereto must be used to
accept the offer to exchange $1,000 principal amount at maturity of the Senior
Discount Notes due January 15, 2008, Series B (the "New Notes") of Century
Communications Corp. (the "Company"), which are registered under the Securities
Act of 1933, as amended (the "Securities Act"), for each $1,000 principal amount
at maturity of the Company's outstanding Senior Discount Notes due January 15,
2008, Series A (the "Existing Notes"), which have not been registered under the
Securities Act, made pursuant to the Prospectus dated , 1998 (the
"Prospectus") and the accompanying Letter of Transmittal (which together
constitute the "Exchange Offer"), if (i) a participant ("DTC Participant") in
the Depository Trust Company ("DTC") holding Existing Notes through DTC cannot
transmit its acceptance through DTC's Automated Tender Offer Program ("ATOP")
prior to 5:00 p.m., New York City time, on , 1998, or such later
date and time to which the Exchange Offer may be extended (the "Expiration
Date"), or (ii) a holder of Existing Notes (A) does not have certificates
immediately available and cannot tender prior to the Expiration Date, or (B)
cannot deliver their Existing Notes, the Letter of Transmittal, or any other
required documents to the Exchange Agent prior to the Expiration Date. Such form
may be delivered or transmitted by facsimile transmission, mail or hand delivery
to ___________________________________ (the "Exchange Agent") as set forth
below. Capitalized terms used herein and not otherwise defined shall have the
respective meanings ascribed to them in the Prospectus.
____________________________________
Facsimile Transmission Number
(For Eligible Institutions Only)
_________________
Confirm by Telephone:
_________________
<PAGE>
<PAGE>
By Registered or Certified Mail,
By Hand or By Overnight Courier:
---------------------------------------
---------------------------------------
Attention:
-----------------------------
DELIVERY OF THIS NOTICE OF GUARANTEED DELIVERY TO AN ADDRESS OTHER
THAN AS SET FORTH ABOVE, OR TRANSMISSION OF THIS NOTICE OF GUARANTEED DELIVERY
VIA A FACSIMILE NUMBER OTHER THAN AS SET FORTH ABOVE, WILL NOT CONSTITUTE A
VALID DELIVERY.
Ladies and Gentlemen:
The undersigned hereby tenders to Century Communications Corp., a New
Jersey corporation (the "Company"), in accordance with the Company's offer, upon
the terms and subject to the conditions set forth in the Prospectus dated
, 1998 (the "Prospectus"), and in the accompanying Letter of
Transmittal, receipt of which is hereby acknowledged, the principal amount of
Existing Notes set forth below, pursuant to the guaranteed delivery procedures
described in the Prospectus.
Name(s) of Record
Holder(s) or DTC Participants
(Please Type or Print)
DTC Participant Number (if applicable)
Address
Area Code & Telephone No.
Principal Amount of Existing Notes Tendered: $
Certificate Number(s) for
Existing Notes (if available)
Total Principal Amount
Represented by Certificate(s):
-2-
<PAGE>
<PAGE>
All authority herein conferred shall survive the death or incapacity
of the undersigned and every obligation of the undersigned hereunder shall be
binding upon the heirs, personal representatives, successors and assigns of the
undersigned.
Signature of Holder
Dated:
Must be signed by the holder(s) of the Existing Notes as their
names(s) appear(s) on certificates for Existing Notes or on a security position
listing, or by person(s) authorized to become registered holder(s) by
endorsement and documents transmitted with this Notice of Guaranteed Delivery.
If signature is by a trustee, executor, administrator, guardian,
attorney-in-fact, officer or other person acting in a fiduciary or
representative capacity, such person must set forth his or her full title below.
PLEASE PRINT NAME(S) AND ADDRESS(ES)
Name(s):
Capacity:
Address(es):
The Depository Trust Company
(Check if Existing Notes will be tendered by
book-entry transfer, including through ATOP)
Account Number
THE GUARANTY ON THE FOLLOWING PAGE MUST BE COMPLETED
-3-
<PAGE>
<PAGE>
GUARANTY
(NOT TO BE USED FOR SIGNATURE GUARANTY)
The undersigned, being a member of a registered national securities
exchange or of the National Association of Securities Dealers, Inc., a
commercial bank or trust company having an office or correspondent in the United
States or an Eligible Guarantor Institution within the meaning of Rule 17Ad-15
under the Securities Exchange Act of 1934, as amended, hereby guarantees that
the undersigned will deliver to the Exchange Agent the certificates representing
the Existing Notes being tendered hereby or confirmation of book-entry transfer
of such Existing Notes into the Exchange Agent's account at DTC, in proper form
for transfer, together with the Letter of Transmittal (or facsimile thereof),
properly completed and duly executed, with any required signature guaranties and
any other required documents, within three New York Stock Exchange trading days
after the Expiration Date:
Name of Firm
Address
Area Code and Telephone No.
Authorized Signature
Name
(Please Type or Print)
Title
Dated
NOTE: DO NOT SEND CERTIFICATES OF EXISTING NOTES WITH THIS FORM. CERTIFICATES OF
EXISTING NOTES SHOULD BE SENT ONLY WITH A LETTER OF TRANSMITTAL.
-4-
<PAGE>
<PAGE>
CENTURY COMMUNICATIONS CORP.
OFFER TO EXCHANGE ANY AND ALL OUTSTANDING
SENIOR DISCOUNT NOTES DUE JANUARY 15, 2008, SERIES A,
WHICH ARE NOT REGISTERED UNDER THE SECURITIES ACT,
FOR
SENIOR DISCOUNT NOTES DUE JANUARY 15, 2008, SERIES B,
WHICH ARE REGISTERED UNDER THE SECURITIES ACT
To: Brokers, Dealers, Commercial Banks,
Trust Companies and Other Nominees;
Century Communications Corp. (the "Company") is offering, upon and
subject to the terms and conditions set forth in the Prospectus, dated
, 1998 (the "Prospectus"), and the enclosed Letter of Transmittal
(the "Letter of Transmittal"), to exchange (the "Exchange Offer") $1,000
principal amount at maturity of its Senior Discount Notes due January 15, 2008,
Series B (the "New Notes"), which are registered under the Securities Act of
1933, as amended (the "Securities Act"), for each $1,000 principal amount at
maturity of its outstanding Senior Discount Notes due January 15, 2008, Series A
(the "Existing Notes"; and together with the New Notes, the "Notes"), which are
not registered under the Securities Act. The Exchange Offer is being made in
order to satisfy certain obligations of the Company contained in the
Registration Rights Agreement, dated January 15, 1998, between the Company and
Merrill Lynch, Pierce, Fenner & Smith Incorporated.
We are requesting that you contact your clients for whom you hold
Existing Notes regarding the Exchange Offer. For your information and for
forwarding to your clients for whom you hold Existing Notes registered in your
name or in the name of your nominee, or who hold Existing Notes registered in
their own names, we are enclosing the following documents:
1. Prospectus dated , 1998;
2. The Letter of Transmittal for your use and for the information of
your clients;
3. A Notice of Guaranteed Delivery to be used to accept the Exchange
Offer if certificates for Existing Notes are not immediately
available or time will not permit all required documents to reach
the Exchange Agent prior to the Expiration Date (as defined
below) or if the procedure for book-entry transfer, including
through the Automated Tender Offer Program ("ATOP") of the
Depository Trust Company ("DTC"), cannot be completed on a timely
basis;
<PAGE>
<PAGE>
4. A form of letter which may be sent to your clients for whose
account you hold Existing Notes registered in your name or the
name of your nominee, with space provided for obtaining such
clients' instructions with regard to the Exchange Offer; and
5. Guidelines for Certification of Taxpayer Identification Number of
Substitute Form W-9.
Your prompt action is requested. The Exchange Offer will expire at
5:00 p.m., New York City time, on , 1998, unless extended by the
Company (the "Expiration Date"). The Existing Notes tendered pursuant to the
Exchange Offer may be withdrawn at any time before 5:00 pm., New York City time,
on the Expiration Date.
To participate in the Exchange Offer, a duly executed and properly
completed Letter of Transmittal (or facsimile thereof), with any required
signature guaranties and any other required documents, should be sent to the
Exchange Agent and certificates representing the Existing Notes should be
delivered to the Exchange Agent, all in accordance with the instructions set
forth in the Letter of Transmittal and the Prospectus. NOTWITHSTANDING THE
FOREGOING, A PARTICIPANT IN DTC (A "DTC PARTICIPANT") MAY VALIDLY ACCEPT THE
TERMS OF THE EXCHANGE OFFER BY TENDERING EXISTING NOTES THROUGH ATOP PRIOR TO
THE EXPIRATION DATE. ACCORDINGLY, SUCH DTC PARTICIPANT MUST ELECTRONICALLY
TRANSMIT ITS ACCEPTANCE TO DTC THROUGH ATOP, AND THEN DTC WILL EDIT AND VERIFY
THE ACCEPTANCE, EXECUTE A BOOK-ENTRY DELIVERY TO THE EXCHANGE AGENT'S ACCOUNT AT
DTC AND SEND AN AGENT'S MESSAGE TO THE EXCHANGE AGENT FOR ITS ACCEPTANCE. BY
TENDERING THROUGH ATOP, SUCH DTC PARTICIPANT WILL EXPRESSLY ACKNOWLEDGE RECEIPT
OF THIS LETTER OF TRANSMITTAL AND AGREE TO BE BOUND BY ITS TERMS AND THE COMPANY
WILL BE ABLE TO ENFORCE SUCH AGREEMENT AGAINST SUCH DTC PARTICIPANT.
If holders of Existing Notes wish to tender, but it is impracticable
for them to forward their certificates for Existing Notes prior to the
expiration of the Exchange Offer or to comply with the book-entry transfer
procedures, including those with respect to tenders through ATOP, on a timely
basis, a tender may be effected by following the guaranteed delivery procedures
described in the Prospectus under the caption "Procedures for Tendering Existing
Notes--Guaranteed Delivery Procedures."
Holders who tender their Existing Notes for exchange will not be
obligated to pay any transfer taxes in connection therewith, expect that holders
who instruct the Company to register New Notes in the name of, or request that
Existing Notes not tendered or not accepted in the Exchange Offer be returned
to, a person other than the registered tendering holder will be responsible for
the payment of any applicable transfer tax thereon.
-2-
<PAGE>
<PAGE>
Any inquiries you may have with respect to the Exchange Offer, or
requests for additional copies of the enclosed materials, should be directed to
____________________, the Exchange Agent for the Existing Notes, at its address
and telephone number set forth on the front of the Letter of Transmittal.
Very truly yours,
CENTURY COMMUNICATIONS CORP.
NOTHING HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL CONSTITUTE YOU OR
ANY PERSON AS AN AGENT OF THE COMPANY OR THE EXCHANGE AGENT, OR AUTHORIZE YOU OR
ANY OTHER PERSON TO USE ANY DOCUMENT OR MAKE ANY STATEMENTS ON BEHALF OF EITHER
OF THEM WITH RESPECT TO THE EXCHANGE OFFER, EXCEPT FOR STATEMENTS EXPRESSLY MADE
IN THE PROSPECTUS OR THE LETTER OF TRANSMITTAL.
Enclosures
-3-
<PAGE>
<PAGE>
EXHIBIT 99.5
CENTURY COMMUNICATIONS CORP.
OFFER TO EXCHANGE ANY AND ALL OUTSTANDING
SENIOR DISCOUNT NOTES DUE JANUARY 15, 2008. SERIES A.
WHICH ARE NOT REGISTERED UNDER THE SECURITIES ACT,
FOR SENIOR DISCOUNT NOTES DUE JANUARY 15, 2008,
SERIES B. WHICH ARE REGISTERED UNDER THE SECURITIES ACT
To Our Clients:
Enclosed for your consideration is a Prospectus, dated , 1998
(the "Prospectus"), and the related Letter of Transmittal (the "Letter of
Transmittal"), relating to the offer (the "Exchange Offer") of Century
Communications Corp. (the "Company") to exchange $1,000 principal amount at
maturity of its Senior Discount Notes due January 15, 2008, Series B (the "New
Notes"), which are registered under the Securities Act of 1933, as amended (the
"Securities Act"), for each $1,000 principal amount at maturity of its Senior
Discount Notes due January 15, 2008, Series A (the "Existing Notes"; and
together with the New Notes, the "Notes"), which are not registered under the
Securities Act, upon the terms and subject to the conditions described in the
Prospectus. The Exchange Offer is being made in order to satisfy certain
obligations of the Company contained in the Registration Rights Agreement, dated
January 15, 1998, between the Company and Merrill Lynch, Pierce, Fenner & Smith
Incorporated.
This material is being forwarded to you as the beneficial owner of the
Existing Notes carried by us in your account but not registered in your name. A
tender of such Existing Notes may only be made by us as the holder of record and
pursuant to your instructions.
Accordingly, we request instructions as to whether you wish us to
tender on your behalf the Existing Notes held by us for your account, pursuant
to the terms and conditions set forth in the enclosed Prospectus and Letter of
Transmittal.
Your instructions should be forwarded to us as promptly as possible in
order to permit us to tender the Existing Notes on your behalf in accordance
with the provisions of the Exchange Offer. The Exchange Offer will expire at
5:00 p.m., New York City time, on , 1998, unless extended by
the Company (the "Expiration Date"). Any Existing Notes tendered pursuant to the
Exchange Offer may be withdrawn at any time before 5:00 p.m., New York City
time, on the Expiration Date.
Your attention is directed to the following:
1. The Exchange Offer is for any and all Existing Notes.
<PAGE>
<PAGE>
2. The Exchange Offer is subject to certain conditions set forth in
the Prospectus in the section captioned The Exchange
Offer--Conditions "
3. Holders who tender their Existing Notes for exchange will not be
obligated to pay any transfer taxes in connection therewith,
except that holders who instruct the Company to register New
Notes in the name of, or request that Existing Notes not be
tendered or not accepted in the Exchange Offer be returned to, a
person other than the registered tendering holder will be
responsible for the payment of any applicable transfer tax
thereon.
4. The Exchange Offer expires at 5:00 p.m., New York City time, on
, 1998, unless extended by the Company.
If you wish to have us tender your Existing Notes, please so instruct
us by completing, executing and returning to us the instruction form on the back
of this letter. The Letter of Transmittal is furnished to you for information
only and may not be used directly by you to tender Existing Notes.
-2-
<PAGE>
<PAGE>
INSTRUCTIONS WITH RESPECT TO
THE EXCHANGE OFFER
The undersigned acknowledge(s) receipt of your letter and the enclosed
material referred to therein relating to the Exchange Offer made by Century
Communications Corp., with respect to its Existing Notes.
This will instruct you to tender the Existing Notes held by you for
the account of the undersigned, upon and subject to the terms and conditions set
forth in the Prospectus and the related Letter of Transmittal.
Please tender the Existing Notes held by you for my account as
indicated below:
AGGREGATE PRINCIPAL AMOUNT OF EXISTING NOTES
--------------------------------------------
Senior Discount Notes due
January 15, 2008, Series A
(the "Existing Notes")...
--------------------------------------
Please do not tender any Existing
Notes held by you for my account
Dated: , 1998
-------------------
--------------------------------------------
--------------------------------------------
SIGNATURE(S)
--------------------------------------------
--------------------------------------------
--------------------------------------------
PLEASE PRINT NAME(S) HERE
--------------------------------------------
ADDRESS(ES)
--------------------------------------------
AREA CODE AND TELEPHONE NUMBER
--------------------------------------------
TAX IDENTIFICATION OR SOCIAL SECURITY NO(S).
None of the Existing Notes held by us for your account will be
tendered unless we receive written instructions from you to do so. Unless a
specific contrary instruction is given in the space provided, your signature(s)
hereon shall constitute an instruction to us to tender all the Existing Notes
held by us for your account.
-3-
