EXECUTION COPY
CENTURY COMMUNICATIONS CORP.
and
FIRST TRUST OF CALIFORNIA, NATIONAL ASSOCIATION,
successor trustee to
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Trustee
Eighth Supplemental Indenture
Dated as of December 10, 1997
8 3/8% Senior Notes Due 2007
EIGHTH SUPPLEMENTAL INDENTURE, dated as of December 10, 1997
(the "Eighth Supplemental Indenture"), to the Indenture, dated as of February
15, 1992 (collectively, the "Indenture"), between 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 00 Xxxxxx Xxxxxx, Xxx
Xxxxxx, Xxxxxxxxxxx 00000, and FIRST TRUST OF CALIFORNIA, NATIONAL ASSOCIATION,
successor trustee to BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, a
national banking association organized and existing under the laws of the United
States, as Trustee (the "Trustee").
RECITALS OF THE COMPANY
WHEREAS, the Company has duly authorized the execution and delivery of
the Indenture to provide for the issuance from time to time of one or more
series of its senior debt securities (the "Securities") to be issued in one or
more series as in the Indenture provided;
WHEREAS, the Company desires and has requested the Trustee to join it
in the execution and delivery of this Eighth Supplemental Indenture in order to
establish and provide for the issuance by the Company of a series of Securities
designated as its 8 3/8% Senior Notes Due 2007 in the aggregate principal amount
of $100,000,000, a form of which is attached hereto as Exhibit A (the "8 3/8%
Notes"), on the terms set forth herein;
WHEREAS, Section 10.01 of the Indenture provides that a supplemental
indenture may be entered into by the Company and the Trustee without the consent
of any holder of any Securities for such purpose provided certain conditions are
met;
WHEREAS, the conditions set forth in the Indenture for the execution
and delivery of this Eighth Supplemental Indenture have been complied with; and
WHEREAS, all things necessary to make this Eighth Supplemental
Indenture a valid agreement of the Company and the Trustee, in accordance with
its terms, and a valid amendment of, and supplement to, the Indenture have been
done;
NOW THEREFORE:
In consideration of the premises and the purchase and acceptance of the
8 3/8% Notes by the holders thereof the Company mutually covenants and agrees
with the Trustee, for the equal and proportionate benefit of all holders of the
8 3/8% Notes, that the Indenture is supplemented and amended, to the extent and
for the purposes expressed herein, as follows:
PARAGRAPH A. SCOPE OF THIS EIGHTH
SUPPLEMENTAL INDENTURE
The changes, modifications and supplements to the Indenture effected by
this Eighth Supplemental Indenture in Paragraphs B, C and D hereof shall only be
applicable with respect to, and govern the terms of, the 8 3/8% Notes issued by
the Company, which shall be limited in aggregate principal amount to
$100,000,000, except as provided in Section 3.01(2) of the Indenture, and shall
not apply to any other Securities which may be issued under the Indenture
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unless a supplemental indenture with respect to such other Securities
specifically incorporates such changes, modifications and supplements.
PARAGRAPH B. ADDITIONAL PROVISIONS
B1. ADDITIONAL DEFINITIONS - Each of the following definitions, which
constitute part of this Eighth Supplemental Indenture, shall be inserted in
proper alphabetical order in Article 1:
"Advance" shall mean 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.
"Asset Sale" shall mean 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.
"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 Xxxxx'x Investors
Service, Inc., a rating of B3, or the equivalent thereof by any substitute
agency, as provided in Section 12.10.
"B Plus" shall mean, with respect to ratings by Standard & Poor's
Corporation, a rating of B+ and, with respect to ratings by Xxxxx'x Investors
Service, Inc., a rating of B1, or the equivalent thereof by any substitute
agency, as provided in Section 12.10.
"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.
"Cash Flow Available for Interest Expense" shall mean, for any Person,
for any period, (A) the sum of the amount for such period of (i) Net Income,
(ii) Interest Expense, (iii)
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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.
"Century/Texas" shall mean Century Communications Corp., a Texas
corporation, a wholly-owned subsidiary of the Company.
"Class A Common Stock" shall mean the Class A Common Stock, par value
$.01 per share, of the Company.
"Consolidated Cash Flow Available for Interest Expense" shall mean, 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 shall mean, 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 the ratios set forth below:
Period Ratio
------ -----
November 15, 1988 - November 14, 1990 1.25 to 1.0
November 15, 1990 - November 14, 1991 1.35 to 1.0
Thereafter 1.50 to 1.0
"Consolidated Net Income" with respect to any specified Person shall
mean, for any period, the aggregate of the Net Income of such specified Person
and its Subsidiaries for such
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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" shall mean 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 shall mean (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.
"Depository" means The Depository Trust Company, its nominees and their
respective successors.
"Designated Downgrading" shall mean (i) in the event that the rating of
the 8 3/8% 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 B Minus; and (ii) in the event that on any Base Date the
rating of the 8 3/8% 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 12.10) shall be taken
into account.
"Discharged" shall have the meaning assigned to such term in Section
5.02 hereof.
"8 3/8% Notes" shall mean the Company's 8 3/8% Senior Notes Due 2007
originally issued in the aggregate principal amount of $100,000,000 pursuant to
this Indenture.
"Global Note" has the meaning set forth in Section 2.03.
"Incurrence" shall have the meaning assigned to such term in Section
11.13 hereof.
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"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 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 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 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" 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 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
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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.
"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 Date" shall mean the earlier to occur of November 15, 2007
and the date upon which the 8 3/8% Notes shall be declared due and payable
pursuant to the terms of Section 6.01.
"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 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.
"Permitted Investment" shall mean 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.
"Physical Note" has the meaning set forth in Section 2.04.
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"Preferred Stock" shall mean the $3.50 Preferred Shares and the Special
Preferred Shares of the Company.
"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
(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.
"Rating Agency" shall mean either Standard & Poor's Corporation or its
successor ("S&P") or Xxxxx'x Investors Service, Inc. or its successor
("Moody's").
"Redeemable Stock" shall mean 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.
"Repurchase Date" shall have the meaning assigned to such term in
Section 12.10 hereof.
"Repurchase Notice" shall have the meaning assigned to such term in
Section 12.10 hereof.
"Restricted Payments" shall have the meaning assigned to such term in
Section 11.11.
"Restricted Subsidiary" shall mean (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
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and after the date of such reclassification 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.
"Transaction Date" shall have the meaning assigned to such term in the
definition of "Interest Expense Ratio" herein.
"Triggering Event" shall mean 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 Downgrading. For purposes of clause (a) above,
"held of record" shall have the meaning set forth in Rule 12g5-1 promulgated by
the Securities and Exchange Commission under the Securities Exchange Act of
1934, as amended.
"Triggering Event Date" shall have the meaning assigned to such term in
the definition of "Designated Downgrading" herein.
"Unrestricted Subsidiary" shall mean (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.
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.
B2. ADDITIONAL SECTIONS - Each of the following provisions, which
constitutes part of this Eighth Supplemental Indenture, is numbered to conform
with the format of the Indenture:
SECTION 2.03. Securities in Global Form.
The 8 3/8% Notes shall be issued initially in the form of one or more
permanent Global Notes, representing and denominated in an amount equal to the
aggregate principal amount of all of the Securities of such series, each such
Note containing the legend relating to global securities set forth in Section
2.05 hereto (a "Global Note"), deposited with, or on behalf of the Depository or
with the Trustee, as custodian for the Depository.
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Any Holder of the Global Note(s) shall, by acceptance of such Global
Note(s), agree that transfers of beneficial interests in such Global Note(s) may
be effected only through a book-entry system maintained by the Holder of such
Global Note(s) (or its agent), and that ownership of a beneficial interest in
the 8 3/8% Notes shall be required to be reflected in a book entry.
SECTION 2.04. Book-Entry Provisions for Global Note(s).
(a) Each Global Note initially shall (i) be registered in the name of the
Depository for such Global Notes or the nominee of such Depository, (ii) be
deposited with, or on behalf of, the Depository or with the Trustee, as
custodian for such Depository, and (iii) bear the legends set forth in Section
2.05. Members of, or participants in, the Depository ("Agent Members") shall
have no rights under this Indenture with respect to any Global Note(s) held on
their behalf by the Depository, or the Trustee as its custodian, or under the
Global Note(s), and the Depository may be treated by the Company, the Trustee
and any agent of the Company or the Trustee as the absolute owner of such Global
Note(s) 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
Depository and its Agent Members, the operation of customary practices governing
the exercise of the rights of a Holder of any 8 3/8% Notes.
(b) Transfers of each Global Note shall be limited to transfers of such
Global Note in whole, but not in part, to the Depository, its successors or
their respective nominees. Interests of beneficial owners in each Global Note
may be transferred in accordance with the rules and procedures of the
Depository. 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 Global Note if (i) the Company notifies the
Trustee in writing that the Depository is at any time unwilling or unable to
continue as a depository for such Global Note and a successor depository is not
appointed by the Company within 90 days, (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 Global Note pursuant to Section 2.04(b) to beneficial owners who
are required to hold Physical Notes, the Security Registrar shall reflect on its
books and records the date and a decrease in the principal amount of such Global
Note in an amount equal to the principal amount of the beneficial interest in
such Global 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 Global Note to
beneficial owners pursuant to Section 2.04(b), such Global 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 Depository in exchange for its beneficial interest in such Global Note an
equal principal amount of Physical Notes of authorized denominations.
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(e) The Holder of the Global Note(s) 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 8 3/8% Notes.
SECTION 2.05. Legends.
Each Global Note shall bear a legend substantially to the following
effect on the face thereof:
UNLESS THIS GLOBAL NOTE 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 GLOBAL NOTE
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 HEREON 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.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN
PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE
AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE
IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE HEREINAFTER
REFERRED TO.
SECTION 3.11 Establishment of Terms.
The 8 3/8% Notes shall have such terms as are set forth in the 8 3/8%
Note, a copy of which is attached hereto as Exhibit A.
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:
(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);
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(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 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.
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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 8 3/8% 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 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 8 3/8% Notes and
which has an average life to maturity longer than that of the 8 3/8% 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 December 4, 1997, 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 December 4, 1997, 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
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except that the Capital Stock of an Unrestricted Subsidiary may be pledged to
secure borrowings by such Unrestricted Subsidiary or other Unrestricted
Subsidiaries.
SECTION 12.10. Right to Require Repurchase of
8 3/8% Notes.
(a) In the event of the occurrence of a Triggering Event, each holder
of 8 3/8% 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 8 3/8% Notes on the date (the "Repurchase Date") that is 115 days after
a Triggering Event Date, for an amount equal to 101% of their principal amount
plus accrued interest to the Repurchase Date.
(b) The Company shall mail to all holders of record of the 8 3/8%
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 8 3/8% 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 copy of such notice to be published in an
Authorized Newspaper. To exercise the repurchase right, the holder of a 8 3/8%
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
8 3/8% Notes its "Repurchase Notice") to the Trustee of the holder's exercise of
such right, together with the 8 3/8% Note or 8 3/8% 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 8 3/8% 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 8 3/8% 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 8 3/8% Notes or portions thereof.
The Company shall not be required pursuant to Section 3.05 to exchange or
register the transfer of any 8 3/8% 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 8 3/8% 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.
PARAGRAPH C. CHANGED PROVISIONS.
C1. CHANGED DEFINITIONS. The definitions of "Capital Stock", "GAAP" and
"Subsidiary" set forth in Article 1 of the Indenture shall be amended and
restated in their entirety to read as follows:
"Capital Stock" shall mean, (i) in respect of any Person, any and all
shares, interests, rights to purchase, warrants, options, participations or
other equivalents of or interests in
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(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 and (ii) when
used to refer to "Capital Stock" into which Securities of a particular series
are convertible, stock of any class of the Company into which Securities of such
series are convertible in accordance with their terms (as contemplated by
Section 3.01).
"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 the Indenture.
"Subsidiary" of any specified Person shall mean (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.
C2. CHANGED SECTIONS.
SECTION 2.02. Certificate of Authentication.
Section 2.02 of the Indenture, which shall apply to the 8 3/8% Notes,
is amended and restated in its entirety to read as follows:
SECTION 2.02. Form of Trustee's Certificate
of Authentication.
The Trustee's certificate of authentication on the 8 3/8% Notes shall
be in substantially the following form:
This is one of the 8 3/8% Senior Notes Due 2007 referred to in the
Indenture dated as of February 15, 1992, as supplemented by the Eighth
Supplemental Indenture, dated as of December 10, 1997, between Century
Communications Corp. and First Trust of California, National Association,
successor trustee to Bank of America National Trust and Savings Association, as
Trustee.
FIRST TRUST OF CALIFORNIA, NATIONAL ASSOCIATION, successor
trustee to BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, as Trustee
By:____________________
Authentication Date: Authorized Officer
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SECTION 5.02. Defeasance.
Section 5.02 of the Indenture, which shall apply to the 8 3/8% Notes,
is amended and restated in its entirety to read as follows:
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 8 3/8% 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 11.12 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 8 3/8%
Notes (A) money in an amount, or (B) U.S. Government Obligations which through
the payment of 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 all of the principal of the
outstanding 8 3/8% Notes on the date such payment of principal is due in
accordance with the terms of the 8 3/8% Notes;
(2) if the 8 3/8% Notes are then listed on the American Stock Exchange
or any other stock exchange, and if the Company has elected to be deemed
Discharged from its obligations with respect to the 8 3/8% Notes pursuant to
option (a) above, the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that the Company's exercise of its option (a) would not
cause the 8 3/8% Notes to be delisted; and
(3) the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that holders of the 8 3/8% Notes will not recognize
income, gain or loss for Federal income tax purposes as a result of the
Company's exercise of its option 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 8 3/8% Notes and to have satisfied all the
obligations under this Indenture relating to the 8 3/8% 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
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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.
Notwithstanding the satisfaction and discharge of this Indenture under
this Section 5.02, the Company's obligations in Sections 3.05, 3.06, 7.07 and
11.02, however, shall survive until the 8 3/8% Notes are no longer outstanding.
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SECTION 9.01. Company May Consolidate, etc.
Only On Certain Terms.
Section 9.01 is amended by (i) deleting the word "and" at the end of
subclause 1, (ii) deleting the period at the end of subclause 2 and substituting
in lieu thereof a semicolon and (iii) adding the following two subclauses at the
end thereto, to read in their entirety as follows:
(3) immediately after the transaction, no Event of Default exists; and
(4) immediately after giving effect to such transaction on a pro forma
basis, 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:
(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.
ARTICLE TWELVE - REDEMPTION OF SECURITIES
Sections 12.01, 12.06, 12.07 and 12.08 are amended and restated in
their entirety to read as follows:
SECTION 12.01. Applicability of Article.
Securities of any series which are subject to repurchase before their
Stated Maturity shall be repurchased in accordance with their terms and (except
as otherwise specified as contemplated by Section 3.01 for Securities of any
series) in accordance with this Article.
SECTION 12.06. Securities Payable on Repurchase Date.
Notice of repurchase having been given as aforesaid, the Securities so
to be repurchased shall, on the Repurchase Date, become due and payable at the
applicable repurchase price therein specified, and from and after such date
(unless the Company shall default in the payment of the applicable repurchase
price and accrued interest) such Securities shall cease to bear interest. Upon
surrender of any such Security for repurchase in accordance with said notice,
such Security shall be paid by the Company at the applicable repurchase price,
together with accrued interest to the applicable Repurchase Date; provided,
however, that, subject to Section 16.04, installments of interest whose Stated
Maturity is on or prior to the applicable Repurchase Date shall be
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payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant Record
Dates according to their terms and the provisions of Section 3.07.
If any Security called for repurchase shall not be so paid upon
surrender thereof for repurchase, the principal (and premium, if any) shall,
until paid, bear interest from the applicable Repurchase Date at the rate
prescribed therefor in the Security.
SECTION 12.07. Securities Repurchased in Part.
Any Security which is to be repurchased only in part shall be
surrendered at a Place of Payment therefor (with, if the Company or the Trustee
so requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder thereof
or his attorney duly authorized in writing), and the Company shall execute, and
the Trustee shall authenticate and deliver to the Holder of such Security
without service charge, a new Security or Securities of the same series, of any
authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the portion not repurchased of the principal
of the security so surrendered. Securities in denominations larger than $1,000
may be repurchased in part, but only in whole multiples of $1,000.
SECTION 12.08. Securities No Longer Outstanding
After Notice to Trustee and
Deposit of Cash.
If the Company, having given notice to the Trustee as provided in
Section 12.02 or 12.10, shall have deposited with the Trustee or a Paying Agent,
for the benefit of the Holders of any Securities of any series or portions
thereof tendered for repurchase in whole or in part, cash or other form of
payment if permitted by the terms of such Securities (which amount shall be
immediately due and payable to the Holders of such Securities or portions
thereof) in the amount necessary so to repurchase all such Securities or
portions thereof on the applicable Repurchase Date and provision satisfactory to
the Trustee shall have been made for the giving of notice of such repurchase,
such Securities or portions thereof shall thereupon, for all purposes of this
Indenture, be deemed to be no longer Outstanding, and the Holders thereof shall
be entitled to no rights thereunder or hereunder, except the right to receive
payment of the applicable repurchase price, together with interest accrued to
the applicable Repurchase Date, on or after the applicable Repurchase Date of
such Securities or portions thereof.
PARAGRAPH D. REPORTING DATE
For the purposes of the 8 3/8% Notes, the Reporting Date shall be May
15, with the first such Reporting Date being May 15, 1998.
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IN WITNESS WHEREOF, the parties hereto have caused this Eighth
Supplemental 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.
CENTURY COMMUNICATIONS CORP.
By: /s/ Xxxxx X. Xxxxxxxxx
-----------------------------------
Chief Financial Officer,
Senior Vice President and Treasurer
[CORPORATE SEAL]
ATTEST:
FIRST TRUST OF CALIFORNIA, NATIONAL
ASSOCIATION, successor trustee to BANK
OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, as Trustee
By: /s/ Xxxxxx Xxxxxxxxx
-------------------------------
Title: Assistant Vice President
[CORPORATE SEAL]
ATTEST:
-00-
XXXXX XX XXX XXXX )
: ss.:
COUNTY OF NEW YORK )
On the __ day of December, 1997, before me personally
came____________________ , to me known, who, being by me duly sworn, did depose
and say that he is ___________________________________ 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]
--------------------
Notary Public
-00-
XXXXX XX XXXXXXXXXX )
: ss.:
COUNTY OF LOS ANGELES )
On the __ day of December, 1997, before me personally came
_____________________ , to me known, who, being by me duly sworn, did depose and
say that he is ____________________________________ of FIRST TRUST OF
CALIFORNIA, NATIONAL ASSOCIATION, successor trustee to BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION, as Trustee, 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]
------------------
Notary Public
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EXHIBIT A
FORM OF 8 3/8% NOTE
-23-
