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ALLBRITTON COMMUNICATIONS COMPANY
SERIES A AND SERIES B
7 3/4% SENIOR SUBORDINATED NOTES DUE DECEMBER 15, 2012
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INDENTURE
Dated as of December 20, 2002
STATE STREET BANK AND TRUST COMPANY
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Trustee
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CROSS-REFERENCE TABLE*
Trust Indenture
Act Section Indenture Section
310 (a)(1).................................................. 7.10
(a)(2).................................................. 7.10
(a)(3).................................................. N.A.
(a)(4).................................................. N.A.
(a)(5).................................................. 7.10
(b)..................................................... 7.10
(c)..................................................... N.A.
311 (a)..................................................... 7.11
(b)..................................................... 7.11
(c)..................................................... N.A.
312 (a)..................................................... 2.05
(b)..................................................... 12.03
(c)..................................................... 12.03
313 (a)..................................................... 7.06
(b)(1).................................................. 11.03
(b)(2).................................................. 7.06; 7.07
(c)..................................................... 7.06; 12.02
(d)..................................................... 7.06
314 (a)..................................................... 4.03; 12.02
(b)..................................................... N.A.
(c)(1).................................................. 12.04
(c)(2).................................................. 12.04
(d)..................................................... N.A.
(e)..................................................... N.A.
(f)..................................................... 12.05
315 (a)..................................................... N.A.
(b)..................................................... 7.01
(c)..................................................... 7.05; 12.02
(d)..................................................... 7.01
(e)..................................................... 7.01
316 (a) (last sentence)..................................... 6.11
(a)(1)(A)............................................... 2.09
(ac)(1)(B).............................................. 6.05
(a)(2).................................................. 6.04
(b)..................................................... 6.04
(c)..................................................... N.A.
(d)..................................................... 6.07
(33e)................................................... 2.12
317 (a)(1).................................................. 6.08
(a)(2).................................................. 6.09
(b)..................................................... 2.04
318 (a)..................................................... 12.01
(b)..................................................... N.A.
(c)..................................................... 12.01
N.A. means not applicable.
*This Cross-Reference Table is not part of the Indenture.
TABLE OF CONTENTS
Page
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions...................................................1
Section 1.02. Other Definitions............................................10
Section 1.03. Incorporation by Reference of Trust Indenture Act............10
Section 1.04. Rules of Construction........................................11
ARTICLE 2
THE NOTES
Section 2.01. Form and Dating..............................................11
Section 2.02. Execution and Authentication.................................12
Section 2.03. Registrar and Paying Agent...................................12
Section 2.04. Paying Agent To Hold Money in Trust..........................13
Section 2.05. Holder Lists.................................................13
Section 2.06. Transfer and Exchange........................................13
Section 2.07. Replacement Notes............................................18
Section 2.08. Outstanding Notes............................................19
Section 2.09. Treasury Notes...............................................19
Section 2.10. Temporary Notes..............................................19
Section 2.11. Cancellation.................................................19
Section 2.12. Record Date..................................................20
Section 2.13. Defaulted Interest...........................................20
Section 2.14. Issuance of Additional Notes.................................20
ARTICLE 3
REDEMPTION AND PREPAYMENT
Section 3.01. Notices to Trustee...........................................21
Section 3.02. Selection of Notes To Be Redeemed............................21
Section 3.03. Notice of Redemption.........................................21
Section 3.04. Effect of Notice of Redemption...............................22
Section 3.05. Deposit of Redemption Price..................................22
Section 3.06. Notes Redeemed in Part.......................................23
Section 3.07. Optional Redemption..........................................23
Section 3.08. Mandatory Redemption.........................................23
Section 3.09. [INTENTIONALLY OMITTED]......................................24
Section 3.10. Offer To Purchase by Application of Excess Proceeds..........24
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ARTICLE 4
COVENANTS
Section 4.01. Payment of Notes.............................................25
Section 4.02. Maintenance of Office or Agency..............................26
Section 4.03. Reports......................................................26
Section 4.04. Compliance Certificate.......................................26
Section 4.05. Taxes........................................................27
Section 4.06. Stay, Extension and Usury Laws...............................27
Section 4.07. Restricted Payments..........................................27
Section 4.08. Dividend and Other Payment Restrictions Affecting
Subsidiaries..............................................28
Section 4.09. Incurrence of Debt and Issuance of Preferred Stock...........29
Section 4.10. Asset Sales..................................................30
Section 4.11. Transactions With Affiliates.................................31
Section 4.12. Liens Securing Subordinated Debt.............................31
Section 4.13. Other Subordinated Debt......................................32
Section 4.14. Corporate Existence..........................................32
Section 4.15. Change of Control............................................32
ARTICLE 5
SUCCESSORS
Section 5.01. Merger, Consolidation or Sale of Assets......................33
Section 5.02. Successor Corporation Substituted............................33
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01. Events of Default............................................34
Section 6.02. Acceleration.................................................35
Section 6.03. Other Remedies...............................................36
Section 6.04. Waiver of Past Defaults......................................36
Section 6.05. Control by Majority..........................................36
Section 6.06. Limitation on Suits..........................................37
Section 6.07. Rights of Holders of Notes To Receive Payment................37
Section 6.08. Collection Suit by Trustee...................................37
Section 6.09. Trustee May File Proofs of Claim.............................37
Section 6.10. Priorities...................................................38
Section 6.11. Undertaking for Costs........................................38
ARTICLE 7
TRUSTEE
Section 7.01. Duties of Trustee............................................38
Section 7.02. Rights of Trustee............................................39
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Page
Section 7.03. Individual Rights of Trustee.................................40
Section 7.04. Trustee's Disclaimer.........................................40
Section 7.05. Notice of Default............................................40
Section 7.06. Reports by Trustee to Holders of the Notes...................40
Section 7.07. Compensation and Indemnity...................................41
Section 7.08. Replacement of Trustee.......................................41
Section 7.09. Successor Trustee by Merger, Etc.............................42
Section 7.10. Eligibility, Disqualification................................42
Section 7.11. Preferential Collection of Claims Against the Company........42
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01. Option To Effect Legal Defeasance or Covenant
Defeasance................................................43
Section 8.02. Legal Defeasance and Discharge...............................43
Section 8.03. Covenant Defeasance..........................................43
Section 8.04. Conditions to Legal or Covenant Defeasance...................44
Section 8.05. Deposited Money and Government Securities To Be
Held in Trust; Other Miscellaneous Provisions.............45
Section 8.06. Repayment to the Company.....................................45
Section 8.07. Reinstatement................................................45
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01. Without Consent of Holders...................................46
Section 9.02. With Consent of Holders of Notes.............................46
Section 9.03. Compliance with Trust Indenture Act..........................47
Section 9.04. Revocation and Effect of Consents............................48
Section 9.05. Notation on or Exchange of Notes.............................48
Section 9.06. Trustee To Sign Amendments, Etc..............................48
ARTICLE 10
SATISFACTION AND DISCHARGE
Section 10.01. Satisfaction and Discharge...................................48
Section 10.02. Application of Trust Money...................................49
ARTICLE 11
SUBORDINATION
Section 11.01. Agreement To Subordinate.....................................49
Section 11.02. Certain Definitions..........................................49
Section 11.03. Liquidation; Dissolution; Bankruptcy.........................50
Section 11.04. Default on Designated Senior Debt............................50
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Section 11.05. Acceleration of Notes........................................51
Section 11.06. When Distribution Must Be Paid Over..........................51
Section 11.07. Notice by Company............................................52
Section 11.08. Subrogation..................................................52
Section 11.09. Relative Rights..............................................52
Section 11.10. Subordination May Not Be Impaired by Company.................52
Section 11.11. Distribution or Notice to Representative.....................52
Section 11.12. Rights of Trustee and Paying Agent...........................53
Section 11.13. Authorization To Effect Subordination........................53
Section 11.14. Amendments...................................................53
ARTICLE 12
MISCELLANEOUS
Section 12.01. Trust Indenture Act Controls.................................53
Section 12.02. Notices......................................................53
Section 12.03. Communication by Holders of Notes with Other Holders
of Notes..................................................55
Section 12.04. Certificate of Opinion as to Conditions Precedent............55
Section 12.05. Statements Required in Certificate or Opinion................55
Section 12.06. Rules by Trustee and Agents..................................55
Section 12.07. No Personal Liability of Directors, Officers, Employees
and Stockholders..........................................55
Section 12.08. Governing Law................................................56
Section 12.09. No Adverse Interpretation of Other Agreements................56
Section 12.10. Successors...................................................56
Section 12.11. Severability.................................................56
Section 12.12. Counterpart Originals........................................56
Section 12.13. Table of Contents, Headings, Etc.............................56
EXHIBITS
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Exhibit A FORM OF NOTE
Exhibit B CERTIFICATE OF TRANSFEROR
Exhibit C FORM OF CERTIFICATE
Exhibit D FORM OF INTERCOMPANY NOTE
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INDENTURE dated as of December 20, 2002 between ALLBRITTON
COMMUNICATIONS COMPANY, a Delaware corporation (the "Company" or "ACC"), and
STATE STREET BANK AND TRUST COMPANY, a Massachusetts trust company, as trustee
(the "Trustee").
The Company and the Trustee agree as follows for the benefit of each
other and for the equal and ratable benefit of the holders (the "Holders") of
the 7 3/4% Series A Senior Subordinated Notes due December 15, 2012 (the "Series
A Notes") (including Additional Notes, if any, issued from time to time in the
form of the Notes attached hereto as Exhibit A) and the 7 3/4% Series B Senior
Subordinated Notes due December 15, 2012 (the "Series B Notes" (including
Additional Notes, if any, issued from time to time in the form of the Notes
attached hereto as Exhibit A) and, together with the Series A Notes, the
"Notes"):
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions.
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"ACC" means Allbritton Communications Company, a Delaware corporation.
"ACC Common Stock" means the common stock of ACC, par value $.05 per
share.
"Acquired Debt" of any specified Person means Debt of any other Person
existing at the time such other Person merged with or into or became a
Subsidiary of such specified Person, including Debt incurred in connection with,
or in contemplation of, such other Person becoming a Subsidiary of such
specified Person.
"Additional Notes" means Notes having substantially identical terms and
conditions as the $275,000,000 aggregate principal amount of 7 3/4% Senior
Subordinated Notes issued on the Issuance Date, issued pursuant to Article 2 and
in compliance with Section 4.09 of this Indenture
"Affiliate" means a Person (a) that directly or indirectly through one
or more intermediates controls, is controlled by or is under direct or indirect
common control with ACC or any Restricted Subsidiary, (b) that directly or
indirectly through one or more intermediaries beneficially owns or holds 5% or
more of any class of voting stock of ACC or any Restricted Subsidiary or (c) 5%
or more of the voting stock (or in the case of a Person that is not a
corporation, 5% or more of the Equity Interests) of which is beneficially owned
or held by ACC or any Restricted Subsidiary. The term "control" (including, with
correlative meanings, the terms "controlling," "controlled by" and "under common
control with") shall mean the possession, directly or indirectly, of the power
to direct or cause the direction of the management and policies of a Person,
whether through the ownership of voting securities, by contract or otherwise.
"Agent" means any Registrar, Paying Agent or co-registrar.
"Applicable Premium" means, with respect to a Note, the greater of (i)
1.0% of the then outstanding principal amount of such Note and (ii) (a) the
present value of all remaining required interest and principal payments due on
such Note and all premium payments relating thereto assuming a redemption date
of December 15, 2007, computed using a discount rate equal to the Treasury Rate
plus 50 basis points, minus (b) the then outstanding principal amount of such
Note minus (c) accrued and unpaid interest paid on the date of redemption.
"Asset Sale" means (a) any sale, lease, conveyance or other disposition
of assets by ACC or a Restricted Subsidiary (including by way of a sale and
leaseback transaction other than a Capitalized Lease Obligation) and (b) any
sale or issuance of Equity Interests of a Restricted Subsidiary, in each case,
in one or more related transactions involving assets having a fair market value,
or that result in aggregate proceeds, of $2.5 million
or more; provided, however, that (i) Permitted Asset Swaps and (ii) sales of
obsolete equipment in the ordinary course of business shall not be deemed to be
Asset Sales.
"Bankruptcy Law" means Title 11, U.S. Code or any similar federal or
state law for the relief of debtors.
"Board of Directors" means the Board of Directors of ACC, or any
authorized committee thereof.
"Broadcast Related Business" means any business, the majority of whose
revenues are derived from, or whose assets are used or useful in, the broadcast
of television or radio programming and any ancillary businesses relating
thereto.
"Business Day" means any day other than a Legal Holiday.
"Capital Stock" of any Person means any and all shares, interests,
rights to purchase, warrants, options, participations or other equivalents of or
interests in the common or preferred equity (however designated) of such Person,
including, without limitation, partnership interests (whether general or
limited) and membership interests, but excluding convertible debt securities.
"Capitalized Lease Obligation" means, with respect to any Person for
any period, an obligation of such Person to pay rent or other amounts under a
lease that is required to be capitalized for financial reporting purposes in
accordance with GAAP; and the amount of such obligation shall be the capitalized
amount shown on the balance sheet of such Person as determined in accordance
with GAAP.
"Cash Equivalents" means (a) direct obligations of the United States of
America or any agency thereof, or obligations guaranteed by the United States of
America; provided that in each case such obligations mature within one year from
the date of acquisition thereof, (b) certificates of deposit maturing within one
year from the date of creation thereof issued by (i) any U.S. national or state
banking institution having capital, surplus and undivided profits aggregating at
least $250,000,000 and rated at least A by Standard & Poor's, a division of The
McGraw-Hill Companies, Inc. ("S&P"), and A by Moody's Investors Service, Inc. or
(ii) Riggs Bank N.A., (c) commercial paper maturing within 270 days after the
issuance thereof that has the highest credit rating of either S&P or Moody's
Investors Service, Inc., (d) Riggs National Corporation Master Notes, each with
a stated maturity the duration of which shall not exceed two years, (e) Riggs
Bank N.A. Eurodollar Deposits, each with a stated maturity the duration of which
shall not exceed two years, (f) Riggs Bank N.A. Repurchase Agreements, each with
a stated maturity the duration of which shall not exceed two years, (g) Riggs
Bank N.A. Bankers Acceptances, each with a stated maturity the duration of which
shall not exceed two years, (h) Riggs Bank N.A. Eurodollar Certificates of
Deposit, each with a stated maturity the duration of which shall not exceed two
years, (i) Riggs AP Bank Ltd. Certificates of Deposit, each with a stated
maturity the duration of which shall not exceed two years, and (j) Riggs AP Bank
Ltd. Cash Eurodollar Deposits, each with a stated maturity the duration of which
shall not exceed two years.
"Change of Control" means (a) any transaction (including a merger or
consolidation) the result of which is that any Person or Group (as defined in
Rule 13d-5 of the Exchange Act) other than the Principals acquires, directly or
indirectly, more than 50% of the total voting power of all classes of voting
stock of ACC, (b) any transaction (including a merger or consolidation) the
result of which is that any Person or Group (as defined in Rule 13d-5 of the
Exchange Act) other than the Principals has a sufficient number of its or their
nominees elected to the Board of Directors of ACC or any entity directly or
indirectly controlling ACC such that such nominees so elected (whether new or
continuing as directors) shall constitute a majority of the Board of Directors
of ACC or such entity, as the case may be, or (c) the sale of all or
substantially all of the Capital Stock or assets of ACC to any Person or Group
(as defined in Rule 13d-5 of the Exchange Act) other than to the Principals
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as an entirety or substantially as an entirety in one transaction or a series of
related transactions or (d) the sale of the broadcasting property known as of
the date of this Indenture as WJLA-TV.
"Company" means Allbritton Communications Company, a Delaware
corporation.
"Consolidated Net Income" means, for any fiscal period, the
consolidated net earnings or loss of ACC and its Restricted Subsidiaries as the
same would appear on a consolidated statement of earnings of ACC for such fiscal
period prepared in accordance with GAAP; provided that (a) any extraordinary
gain (but not loss) and any gain (but not loss) on sales of assets outside the
ordinary course of business, in each case together with any related provision
for taxes, realized during such period shall be excluded, (b) the results of
operations of any Person acquired in a pooling of interests transaction for any
period prior to the date of such acquisition shall be excluded and (c) net
income attributable to any Person other than a Restricted Subsidiary of ACC
shall be included only to the extent of the amount of cash dividends or
distributions actually paid to ACC or a Restricted Subsidiary of ACC during such
period.
"Consolidated Net Worth" with respect to any Person means the equity of
the common and preferred stockholders of such Person and its Subsidiaries
(excluding any redeemable preferred stock and any cumulated foreign currency
translation adjustment), as determined on a consolidated basis and in accordance
with GAAP.
"Corporate Trust Office of the Trustee" shall be at the address of the
Trustee specified in Section 12.02 of this Indenture or such other address as to
which the Trustee gives notice to ACC.
"Cumulative Operating Cash Flow" means, with respect to ACC and its
Restricted Subsidiaries, as of any date of determination, Operating Cash Flow
from June 30, 1992 to the end of ACC's most recently ended full fiscal quarter
prior to such date, taken as a single accounting period.
"Cumulative Total Interest Expense" means, with respect to ACC and its
Restricted Subsidiaries, as of any date of determination, Total Interest Expense
from June 30, 1992 to the end of ACC's most recently ended full fiscal quarter
prior to such date, taken as a single accounting period.
"Debt" of any Person as of any date means and includes, without
duplication, (a) all indebtedness of such Person, contingent or otherwise, in
respect of borrowed money, including all interest, fees and expenses owed with
respect thereto (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 deferred and
unpaid balance of the purchase price of any property or interest therein, except
any such balance that constitutes a trade payable, if and to the extent such
indebtedness would appear as a liability upon a balance sheet of such Person
prepared on a consolidated basis in accordance with GAAP, (b) all Capitalized
Lease Obligations of such Person, (c) all Obligations of such Person in respect
of letters of credit or letter of credit reimbursement (whether or not such
items would appear on the balance sheet of such Person), (d) all Obligations of
such Person in respect of interest rate protection and foreign currency hedging
arrangements and (e) all Guarantees by such Person of items that would
constitute Debt under this definition (whether or not such items would appear on
such balance sheet); provided, however, that the term Debt shall not include any
Obligations of ACC and its Restricted Subsidiaries with respect to Film
Contracts entered into in the ordinary course of business. The amount of Debt of
any Person at any date shall be, without duplication, the principal amount that
would be shown on a balance sheet of such Person prepared as of such date in
accordance with GAAP and the maximum determinable liability of any contingent
Obligations referred to in clause (e) above at such date. The Debt of ACC and
its Restricted Subsidiaries shall not include any Obligations of Unrestricted
Subsidiaries.
"Debt to Operating Cash Flow Ratio" means, as of any date of
determination, the ratio of (a) the aggregate principal amount of all
outstanding Debt of ACC and its Restricted Subsidiaries as of such date on a
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consolidated basis, plus the aggregate liquidation preference of all outstanding
preferred stock of the Restricted Subsidiaries of ACC as of such date on a
consolidated basis (excluding any such preferred stock held by ACC or a Wholly
Owned Restricted Subsidiary of ACC), plus the aggregate liquidation preference
or redemption amount of all Disqualified Stock of ACC (excluding any such
Disqualified Stock held by ACC or a Wholly Owned Restricted Subsidiary of ACC)
outstanding as of such date to (b) the Operating Cash Flow of ACC and its
Restricted Subsidiaries on a consolidated basis for the four most recent full
fiscal quarters ending immediately prior to such date for which internal
financial statements are available, determined on a pro forma basis after giving
effect to all acquisitions or dispositions of assets made by ACC and its
Restricted Subsidiaries from the beginning of such four quarter period through
such date of determination as if such acquisition or disposition had occurred at
the beginning of such four-quarter period.
"Default" means any event that is, or with the passing of time or the
giving of notice or both would be, an Event of Default.
"Definitive Notes" means Notes, that are issued under this Indenture as
amended or supplemented from time to time, in the form of the Notes attached
hereto as Exhibit A, which do not include the information called for by
footnotes 1 and 2 thereof.
"Depository" means, with respect to the Notes issuable or issued in
whole or in part in global form, the Person specified in Section 2.03 hereof as
the Depository with respect to the Notes, until a successor shall have been
appointed and become such pursuant to the applicable provision of this Indenture
and, thereafter, "Depository" shall mean or include such successor.
"Disqualified 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 at the option of the holder thereof), 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 earlier of the maturity date of the Notes
or the date on which no Notes remain outstanding.
"8.875% Indenture" means the indenture governing the 8.875% Notes.
"8.875% Notes" means the $150.0 million in aggregate principal amount
of 8.875% Senior Subordinated Notes due February 1, 2008 of ACC outstanding on
the date of this Indenture.
"Equity Interests" means Capital Stock and all warrants, options or
other rights to acquire Capital Stock (but excluding any debt security that is
convertible into or exchangeable for Capital Stock).
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Offer" means the offer that may be made by ACC pursuant to
the Registration Rights Agreement to issue Series B Notes in exchange for Series
A Notes.
"fair market value" means, with respect to any asset or property, the
sale value that would be obtained in an arm's-length transaction between an
informed and willing seller under no compulsion to sell and an informed and
willing buyer under no compulsion to buy.
"FCC" means the Federal Communications Commission.
"Film Contracts" means contracts with suppliers that convey the right
to broadcast specified films, video-tape motion pictures, syndicated television
programs or sports or other programming.
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"GAAP" means, as of any date, generally accepted accounting principles
in the United States and not including any interpretations or regulations that
have been proposed but that have not become effective.
"Global Notes" means the U.S. Global Note and the Offshore Global Note,
each such term as defined in Section 2.01.
"Government Securities" means direct obligations of, or obligations
guaranteed by, the United States for the payment of which guarantee or
obligations the full faith and credit of the United States is pledged.
"Guarantee" means a guarantee (other than by endorsement of negotiable
instruments for collection in the ordinary course of business), direct or
indirect, in any manner (including, without limitation, letters of credit and
reimbursement agreements in respect thereof), of all or any part of any Debt.
"Holder" means a Person in whose name a Note is registered.
"Indenture" means this Indenture, as amended, modified or supplemented
from time to time.
"Issuance Date" means December 20, 2002.
"Investments" of any Person means, all investments by such Person in
other Persons (including Affiliates) in the forms of loans (including
Guarantees), advances or capital contributions (excluding commission, travel and
similar advances to officers and employees made in the ordinary course of
business), purchases or other acquisitions for consideration of Debt, Capital
Stock or other securities and all other items that are or would be classified as
investments on a balance sheet prepared in accordance with GAAP.
"Legal Holiday" means a Saturday, a Sunday or a day on which banking
institutions in the City of New York or at a place of payment are authorized by
law, regulation or executive order to remain closed. If a payment date is a
Legal Holiday at a place of payment, payment may be made at that place on the
next succeeding day that is not a Legal Holiday, and no interest shall accrue
for the intervening period.
"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 a security interest).
"Majority Owned Subsidiary" means a Restricted Subsidiary (a) the
majority of the Equity Interests of which are owned, directly or indirectly, by
ACC and (b) the remainder of the Equity Interests of which are owned by an RLA
Trust.
"Net Cash Proceeds" means the aggregate proceeds in the form of cash or
Cash Equivalents received by ACC or any of its Restricted Subsidiaries in
respect of any Asset Sale, including all cash or Cash Equivalents received upon
any sale, liquidation or other exchange of Permitted Asset Sale Consideration,
net of the direct costs relating to such Asset Sale (including, without
limitation, legal, accounting and investment banking fees, and sales
commissions) and any relocation expenses incurred as a result thereof, taxes
paid or payable as a result thereof (after taking into account any available tax
credits or deductions and any tax sharing arrangements), amounts required to be
applied to the repayment of Debt secured by a Lien on the asset or assets that
were the subject of such Asset Sale and any reserve for adjustment in respect of
the sale price of such asset or assets.
"9 3/4% Debentures" means the $275.0 million in the aggregate principal
amount of 9 3/4% Senior Subordinated Debentures due November 30, 2007 of ACC
outstanding on the date of this Indenture.
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"9 3/4% Indenture" means the indenture governing the 9 3/4% Debentures.
"Note Custodian" means the Trustee, as custodian for the Depository
with respect to the Global Notes, or any successor entity thereto.
"Obligations" means any principal, premium, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Debt.
"Officer" means, with respect to any Person, the Chairman of the Board,
the Chief Executive Officer, the President, the Chief Operating Officer, the
Chief Financial Officer, the Treasurer, any Assistant Treasurer, the Controller,
the Secretary or any Vice-President of such Person.
"Officers' Certificate" means a certificate signed on behalf of ACC by
two Officers of ACC, one of whom must be the principal executive officer, the
principal financial officer, the treasurer or the principal accounting officer
of ACC, that meets the requirements of Section 12.05 hereof.
"Operating Cash Flow" means, with respect to ACC and its Restricted
Subsidiaries for any period, the Consolidated Net Income of ACC and its
Restricted Subsidiaries for such period, plus (a) extraordinary net losses and
net losses on sales of assets outside of the ordinary course of business to the
extent that such losses were deducted in computing Consolidated Net Income, plus
(b) provision for taxes based on income or profits, to the extent such provision
for taxes was included in computing such Consolidated Net Income, and any
provision for taxes utilized in computing the net losses under clause (a)
hereof, plus (c) Total Interest Expense of ACC and its Restricted Subsidiaries
for such period, plus (d) depreciation, amortization and all other non-cash
charges, to the extent such depreciation, amortization and other non-cash
charges were deducted in computing such Consolidated Net Income (including
amortization of goodwill and other intangibles). Notwithstanding the foregoing,
in the case of (a) extraordinary net losses and net losses on sales of assets
outside of the ordinary course of business, (b) provisions for taxes based on
income or profits, (c) Total Interest Expense and (d) depreciation, amortization
and other non-cash charges, in each case, of Restricted Subsidiaries of ACC that
are not Wholly Owned Restricted Subsidiaries of ACC, only such portion of such
items as corresponds to the percentage of the common equity of such Restricted
Subsidiary that is owned, directly or indirectly, by ACC shall be added to the
Consolidated Net Income of ACC and its Restricted Subsidiaries in determining
Operating Cash Flow of ACC and its Restricted Subsidiaries.
"Opinion of Counsel" means an opinion from legal counsel who is
reasonably acceptable to the Trustee that meets the requirements of Section
12.05 hereof. Such counsel may be an employee of or counsel to ACC, any
Subsidiary of ACC or the Trustee.
"Pari Passu Debt" means Debt that ranks pari passu in right of payment
with the Notes.
"Permitted Asset Sale Consideration" means up to an aggregate of $50.0
million in fair market value of marketable, publicly traded equity or debt
securities (other than Cash Equivalents) received by ACC and its Restricted
Subsidiaries in connection with all Asset Sales effected since the date of this
Indenture. The fair market value of any Permitted Asset Sale Consideration shall
be determined by ACC's Board of Directors and shall cease to be counted towards
the aggregate limitations referred to above to the extent such consideration is
reduced to cash or Cash Equivalents. In no event shall the amount of outstanding
Permitted Asset Sale Consideration be reduced by the value of any security or
other instrument that has been written off by ACC or any of its Restricted
Subsidiaries.
"Permitted Asset Swap" means a disposition by ACC or any Restricted
Subsidiary of the broadcast operations of a television station (excluding WJLA)
for like kind broadcast assets (or a controlling interest in the
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Capital Stock of a Person owning like kind broadcast assets); provided that (i)
ACC's Board of Directors shall have approved such disposition and exchange and
determined the fair market value of the assets subject to such transaction as
evidenced by a board resolution set forth in an Officers' Certificate or such
fair market value has been determined by a written opinion of an investment
banking firm of national standing or other recognized independent expert with
experience appraising the terms and conditions of the type of transaction
contemplated thereby and (ii) after giving pro forma effect thereto as if the
same had occurred at the beginning of the applicable four-quarter period, ACC
would be permitted to incur $1.00 of additional Debt (other than Permitted Debt)
under Section 4.09 hereof.
"Permitted Investments" means (a) any Investments in ACC or in a Wholly
Owned Restricted Subsidiary or a Majority Owned Subsidiary, (b) loans up to an
aggregate of $1.5 million outstanding at any one time to employees pursuant to
benefits available to the employees of ACC or any Restricted Subsidiary from
time to time in the ordinary course of business, (c) any Investments in the
Notes, (d) any Investments in Cash Equivalents, (e) Investments by ACC or any
Restricted Subsidiary in a Person, if as a result of such Investment (i) such
Person becomes a Wholly Owned Restricted Subsidiary or a Majority Owned
Subsidiary, or (ii) such Person is merged, consolidated or amalgamated with or
into, or transfers or conveys substantially all of its assets to, or is
liquidated into, ACC or a Wholly Owned Restricted Subsidiary or a Majority Owned
Subsidiary, (f) any Investment the sole consideration for the acquisition of
which is ACC Common Stock, (g) any Investments in a Wholly Owned Restricted
Subsidiary or a Majority Owned Subsidiary engaged in a Broadcast Related
Business; provided that at the time of and after giving pro forma effect to such
Investment as if the same had occurred at the beginning of the applicable
four-quarter period, ACC would be permitted to incur $1.00 of additional Debt
(other than Permitted Debt) under Section 4.09 hereof and (h) other Investments
that do not exceed $10.0 million in the aggregate at any time outstanding
(measured as of the date made, and without giving effect to subsequent changes
in value).
"Permitted Liens" means (a) Liens securing any Senior Debt permitted to
be incurred under this Indenture, (b) Liens in favor of ACC, (c) Liens on
property of a Person existing at the time such Person is merged or consolidated
with ACC or any Restricted Subsidiary, (d) Liens on property existing at the
time of acquisition thereof by ACC or any Restricted Subsidiary, (e) purchase
money Liens incurred to secure all or any part of the purchase price of
property, which Liens shall not cover any property other than that being
acquired, purchased, improved or constructed, and shall not cover property
purchased, acquired, constructed or improved more than one year before the
creation of such Lien, (f) Liens to secure the performance of statutory
obligations, surety or appeal bonds, performance bonds or other obligations of a
like nature incurred in the ordinary course of business, (g) Liens existing on
the date of this Indenture, (h) Liens for taxes, assessments or governmental
charges or claims that are not yet delinquent or that are being contested in
good faith by appropriate proceedings promptly instituted and diligently
conducted; provided that any reserve or other appropriate provision as shall be
required in conformity with GAAP shall have been made therefor, (i) Liens
incidental to the conduct of the business of ACC or any Restricted Subsidiary
that are not incurred in connection with the borrowing of money or the obtaining
of advances or credit (other than trade credit in the ordinary course of
business) and do not in the aggregate materially detract from the value of the
property or materially impair the use thereof in the operation of business by
ACC or such Restricted Subsidiary and (j) Liens to secure any extension,
renewal, refinancing or refunding (or successive extensions, renewals,
refinancings or refundings), in whole or in part, of any Debt secured by any
Liens referred to in the foregoing clauses (a) through (i) above; provided that
in the case of clauses (c), (d), (e) and (g), such Lien is limited to all or
part of the specific property securing the original Lien and the principal
amount of such Debt is not increased except as permitted under the provisions of
this Indenture.
"Perpetual" means Perpetual Corporation, a Delaware corporation.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, limited liability company, trust,
unincorporated organization or government or agency or political
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subdivision thereof (including any subdivision or ongoing business of any such
entity or substantially all of the assets of any such entity, subdivision or
business).
"Principals" means (a) Joe L. Allbritton, (b) all other Persons to whom
Joe L. Allbritton is related by blood, adoption or marriage, (c) all trusts
solely for the benefit of one or more of the Persons described in the foregoing
clauses (a) and (b), (d) all charitable trusts or not-for-profit corporations
formed by Joe L. Allbritton under and described in Section 501(c)(3) of the
Internal Revenue Code of 1986, as amended, and (e) all other Persons of which
Persons described in the foregoing clauses (a) through (d) collectively own more
than 50% of the voting stock, partnership interests, membership interests or
other voting equity interests.
"Refinancing" means collectively the following transactions that
occurred in 1992: (i) the prepayment of $100,000,000 of Secured Promissory Notes
due January 11, 2005 (the "Secured Promissory Notes") the lowering of the
interest rate on the $70,000,000 of Secured Promissory Notes remaining
outstanding, (iii) the return of $11,490,000 of advances by Perpetual and (iv)
the issuance of $123,000,000 principal amount of 11.5% Senior Subordinated
Debentures due August 15, 2004.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of December 20, 2002, by and among ACC and the other parties
named on the signature pages thereto, as such agreement may be amended, modified
or supplemented from time to time.
"Responsible Officer," when used with respect to the Trustee, means any
officer within the Corporate Trust Administration department of the Trustee (or
any successor group 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
knowledge of, and familiarity with, the particular subject.
"Restricted Investment" means any Investment other than a Permitted
Investment.
"Restricted Subsidiary" means a Subsidiary of ACC other than an
Unrestricted Subsidiary.
"Riggs Bank N.A." means The Riggs Bank N.A.
"RLA Trust" means either of the Robert Lewis Allbritton 1984 Trust or
the RLA Revocable Trust, in each case for the benefit of Robert L. Allbritton,
or any other trust for the benefit of Robert L. Allbritton, Chairman of the
Board and Chief Executive Officer of ACC.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Credit Facility" means the senior secured revolving credit
facility dated as of March 27, 2001, among ACC, the Subsidiaries of ACC party
thereto, the financing institutions party thereto, Fleet National Bank, as
agent, and Deutsche Bank Securities Inc., as documentation agent, as restated,
amended, refinanced, supplemented or otherwise modified or replaced from time to
time.
"Subsidiary" of any Person means a corporation, limited liability
company or other entity a majority of whose Capital Stock with voting power,
under ordinary circumstances, entitling holders of such Capital Stock to elect
the Board of Directors or other governing body, is at the time, directly or
indirectly, owned by such Person and/or a Subsidiary or Subsidiaries of such
Person.
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"Tax Sharing Agreement" means that certain Tax Sharing Agreement
effective as of September 30, 1991 by and among Perpetual, ACC and ALLNEWSCO.,
Inc., as amended through the date hereof.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. ss.ss.
77aaa-77bbbb), as in effect on the date on which this Indenture is qualified
under the TIA.
"Total Interest Expense" means, for any period, the interest expense
(net of interest income) of ACC and its Restricted Subsidiaries for such period,
determined on a consolidated basis in accordance with GAAP, whether paid or
accrued, to the extent such expense was deducted in computing Consolidated Net
Income (including amortization of original issue discount, non-cash interest
payments and the interest component of capital leases, but excluding
amortization of debt issuance costs and exchangeable preferred stock issuance
costs).
"Transfer Restricted Securities" means securities that bear or are
required to bear the legend set forth in Section 2.06 hereof.
"Treasury Rate" means the yield to maturity at the time of computation
of United States Treasury securities with a constant maturity (as compiled and
published in the most recent Federal Reserve Statistical Release H.15(519) which
has become publicly available at least two Business Days prior to the date fixed
for repayment (or, if such Statistical Release is no longer published, any
publicly available source of similar market data)) most nearly equal to the then
remaining term to December 15, 2007; provided, however, that if the then
remaining term to December 15, 2007 is not equal to the constant maturity of a
United States Treasury security for which a weekly average yield is given, the
Treasury Rate shall be obtained by linear interpolation (calculated to the
nearest one-twelfth of a year) from the weekly average yields of United States
Treasury securities for which such yields are given, except that if the then
remaining term to December 15, 2007 is less than one year, the weekly average
yield on actually traded United States Treasury securities adjusted to a
constant maturity of one year shall be used.
"Trustee" means the party named as such above until a successor
replaces it in accordance with the applicable provisions of this Indenture and
thereafter means the successor serving hereunder.
"Unrestricted Subsidiary" means (a) any Subsidiary of ACC that at the
time of determination shall have been designated an Unrestricted Subsidiary by
ACC's Board of Directors, as provided below, and (b) any Subsidiary of an
Unrestricted Subsidiary. ACC's Board of Directors may designate any Subsidiary
of ACC (including any newly acquired or newly formed Subsidiary) to be an
Unrestricted Subsidiary; provided that (x) the Subsidiary to be so designated
(i) has total assets with a fair market value at the time of such designation of
$1,000 or less or (ii) is being so designated simultaneously with the
acquisition by ACC of such Subsidiary by merger or consolidation with an
Unrestricted Subsidiary and (y) immediately after giving effect to such
designation, no Default or Event of Default shall have occurred and be
continuing. ACC's Board of Directors may designate any Unrestricted Subsidiary
to be a Restricted Subsidiary; provided that immediately after giving effect to
such designation, no Default or Event of Default shall have occurred and be
continuing, including, without limitation, under Sections 4.09 and 4.12 of this
Indenture, assuming the incurrence by ACC and its Restricted Subsidiaries at the
time of such designation of all existing Debt and Liens of the Unrestricted
Subsidiary to be so designated as a Restricted Subsidiary. Any such designation
by ACC's Board of Directors shall be evidenced to the Trustee by filing with the
Trustee a certified copy of the resolution of ACC's Board of Directors giving
effect to such designation and an Officers' Certificate certifying that such
designation complied with the foregoing conditions. Notwithstanding the
foregoing or any other provision of this Indenture to the contrary, no assets of
the broadcasting operations known as of the date of this Indenture as WJLA-TV,
KATV, KTUL, WSET, WCIV, WHTM, WCFT, WJSU and WBMA-LP may be held at any time by
Unrestricted Subsidiaries, other than assets transferred to Unrestricted
Subsidiaries in the ordinary course of business that in the aggregate are not
material to such broadcasting operations.
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"Weighted Average Life to Stated Maturity" means, as of the date of
determination with respect to any Debt, the quotient obtained by dividing (i)
the sum of the products of (a) the number of years from the date of
determination to the date or dates of each successive scheduled principal
payment of such Debt multiplied by (b) the amount of each such principal payment
by (ii) the sum of all such principal payments.
"Wholly Owned Restricted Subsidiary" means any Restricted Subsidiary
all of the outstanding shares of voting stock of which are owned, directly or
indirectly, by ACC.
Section 1.02. Other Definitions.
-----------------
Defined
Term in Section
---- ----------
"Affiliate Transaction"................................... 4.11
"Asset Sale Offer"........................................ 3.10
"Change of Control Offer"................................. 4.15
"Change of Control Payment"............................... 4.15
"Change of Control Payment Date".......................... 4.15
"Covenant Defeasance"..................................... 8.03
"Custodian"............................................... 6.01
"Designated Senior Debt".................................. 11.02
"Event of Default"........................................ 6.01
"Excess Proceeds"......................................... 4.10
"incur"................................................... 4.09
"Legal Defeasance"........................................ 8.02
"Offer Amount"............................................ 3.10
"Offer Period"............................................ 3.10
"Offshore Global Note".................................... 2.01
"Paying Agent"............................................ 2.03
"Payment Blockage Notice"................................. 11.04
"Permitted Debt".......................................... 4.09
"Purchase Date"........................................... 3.10
"Registrar"............................................... 2.03
"Representative".......................................... 11.02
"Restricted Payments"..................................... 4.07
"Senior Bank Debt"........................................ 11.02
"Senior Debt"............................................. 11.02
"U.S. Global Note......................................... 2.01
Section 1.03. Incorporation by Reference of Trust Indenture Act.
-------------------------------------------------
Whenever this Indenture refers to a provision of the TIA, the provision
is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following
meanings:
"indenture securities" means the Notes;
"indenture security Holder" means a Holder of a Note;
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"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee;
"obligor" on the Notes means ACC and any successor obligor upon the
Notes.
All other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule under the TIA
have the meanings so assigned to them.
Section 1.04. Rules of Construction.
---------------------
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP; provided that, notwithstanding
anything to the contrary herein, gains and losses associated with the
early extinguishment of debt shall be determined in accordance with
GAAP prior to the effectiveness of SFAS No. 145;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the
plural include the singular;
(5) provisions apply to successive events and transactions;
and
(6) references to sections of or rules under the Securities
Act shall be deemed to include substitute, replacement or successor
sections or rules adopted by the SEC from time to time.
ARTICLE 2
THE NOTES
Section 2.01. Form and Dating.
---------------
The Notes and the Trustee's certificate of authentication shall be
substantially in the form of Exhibit A hereto, the terms of which are
incorporated in and made part of this Indenture. The Notes may have notations,
legends or endorsements required by law, stock exchange rule, agreements to
which ACC is subject or usage. Each Note shall be dated the date of its
authentication. The Notes shall be issued initially in denominations of $1,000
and integral multiples thereof.
Notes offered and sold in reliance on Rule 144A under the Securities
Act shall be issued initially in the form of a single permanent global Note, in
definitive, fully registered form without interest coupons, substantially in the
form set forth in Exhibit A attached hereto, including the text referred to in
footnote 1 and the additional schedule referred to in footnote 2 thereto (the
"U.S. Global Note"). Notes offered and sold in offshore transactions in reliance
on Regulation S under the Securities Act shall be issued initially in the form
of a single permanent global Note, in definitive, fully registered form without
interest coupons, substantially in the form set forth in Exhibit A attached
hereto, including the text referred to in footnote 1 and the additional schedule
referred to in footnote 2 thereto (the "Offshore Global Note"). Notes in
definitive form to be issued in exchange for Global Notes shall be substantially
in the form of Exhibit A attached hereto (but without including the text
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referred to in footnote 1 and the additional schedule referred to in footnote 2
thereto). Each Global Note shall represent such of the outstanding Notes as
shall be specified therein and each shall provide that it shall represent the
aggregate amount of outstanding Notes from time to time endorsed thereon and
that the aggregate amount of outstanding Notes represented thereby may from time
to time be reduced or increased, as appropriate, to reflect exchanges and
redemptions. Any endorsement of a Global Note to reflect the amount of any
increase or decrease in the amount of outstanding Notes represented thereby
shall be made by the Trustee or the Note Custodian, at the direction of the
Trustee, in accordance with instructions given by the Holder thereof as required
by Section 2.06 hereof.
Section 2.02. Execution and Authentication.
----------------------------
Two Officers shall sign the Notes for ACC by manual or facsimile
signature. ACC's seal shall be reproduced on the Notes and may be in facsimile
form.
If an Officer whose signature is on a Note no longer holds that office
at the time a Note is authenticated, the Note shall nevertheless be valid.
A Note shall not be valid until authenticated by the manual signature
of the Trustee. The signature shall be conclusive evidence that the Note has
been authenticated under this Indenture. The form of the Trustee's certificate
of authentication to be borne by the Notes shall be substantially as set forth
in Exhibit A attached hereto.
The Trustee shall, upon a written order of ACC signed by two Officers,
authenticate (i) Series A Notes for original issue on the Issuance Date in the
aggregate principal amount not to exceed $275,000,000 and (ii) subject to
Section 4.09, Additional Notes which may be issued from time to time pursuant to
Section 2.14. The Trustee, upon written order of ACC signed by two Officers of
ACC, together with the other documents required by Sections 12.04 and 12.05,
shall authenticate Series B Notes; provided that such Series B Notes shall be
issuable only upon the valid surrender for cancellation of Series A Notes of a
like aggregate principal amount in accordance with the Exchange Offer or an
exchange offer specified in any registration rights agreement relating to the
Additional Notes. Such written order of ACC shall specify the amount of Notes to
be authenticated and the date on which the original issue of Notes is to be
authenticated and, in the case of Additional Notes issued pursuant to Section
2.14, such written order shall certify that such issuance is not prohibited
under Section 4.09 of this Indenture. Any Additional Notes shall be part of the
same issue as the Notes being issued on the Issuance Date and will vote on all
matters as one class with the Notes being issued on the Issuance Date,
including, without limitation, waivers, amendments, redemptions, Change of
Control Offers and Asset Sale Offers. For the purposes of this Indenture, except
for Section 4.09, references to the Notes include Additional Notes, if any.
The Trustee may appoint an authenticating agent acceptable to ACC to
authenticate Notes. Unless limited by the terms of such appointment, an
authenticating agent may authenticate Notes whenever the Trustee may do so. Each
reference in this Indenture to authentication by the Trustee includes
authentication by such agent. An authenticating agent has the same rights as an
Agent to deal with ACC or an Affiliate of ACC.
Section 2.03. Registrar and Paying Agent.
--------------------------
ACC shall maintain (i) an office or agency where Notes may be presented
for registration of transfer or for exchange ("Registrar") and (ii) an office or
agency where Notes may be presented for payment ("Paying Agent"). The Registrar
shall keep a register of the Notes and of their transfer and exchange. ACC may
appoint one or more co-registrars and one or more additional paying agents. The
term "Registrar" includes any co-registrar and the term "Paying Agent" includes
any additional paying agent. ACC may change any Paying Agent, Registrar or
co-registrar without prior notice to any Holder. ACC shall notify the Trustee in
writing and
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the Trustee shall notify the Holders of the name and address of any Agent not a
party to this Indenture. If ACC fails to appoint or maintain another entity as
Registrar or Paying Agent, the Trustee shall act as such. ACC or any of its
Restricted Subsidiaries may act as Paying Agent, Registrar or co-registrar. ACC
shall enter into an appropriate agency agreement with any Agent not a party to
this Indenture, which shall incorporate the provisions of the TIA. Such
agreement shall implement the provisions of this Indenture that relate to such
Agent. ACC shall notify the Trustee of the name and address of any such Agent.
If ACC fails to maintain a Registrar or Paying Agent, or fails to give the
foregoing notice, the Trustee shall act as such, and shall be entitled to
appropriate compensation in accordance with Section 7.07 hereof.
ACC initially appoints The Depository Trust Company ("DTC") to act as
Depository with respect to the Global Notes.
ACC initially appoints the Trustee to act as the Registrar and Paying
Agent and the Trustee shall initially act as Note Custodian with respect to the
Global Notes.
Section 2.04. Paying Agent To Hold Money in Trust.
-----------------------------------
ACC shall require each Paying Agent other than the Trustee to agree in
writing that the Paying Agent will hold in trust for the benefit of the Holders
or the Trustee all money held by the Paying Agent for the payment of principal
of, premium, if any, and interest on the Notes, and will notify the Trustee of
any Default by ACC in making any such payment. While any such Default continues,
the Trustee may require a Paying Agent to pay all money held by it to the
Trustee. ACC at any time may require a Paying Agent to pay all money held by it
to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other
than ACC or a Restricted Subsidiary) shall have no further liability for the
money delivered to the Trustee. If ACC or a Restricted Subsidiary acts as Paying
Agent, it shall segregate and hold in a separate trust fund for the benefit of
the Holders all money held by it as Paying Agent. Upon any bankruptcy or
reorganization proceedings relating to ACC, the Trustee shall serve as Paying
Agent.
Section 2.05. Holder Lists.
------------
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
all Holders and shall otherwise comply with TIA ss. 312(a). If the Trustee is
not the Registrar, ACC shall furnish to the Trustee at least seven Business Days
before each interest payment date and at such other times as the Trustee may
request in writing, a list in such form and as of such date as the Trustee may
reasonably require of the names and addresses of the Holders, including the
aggregate principal amount of Notes held by each thereof, and ACC shall
otherwise comply with TIA ss. 312(a).
Section 2.06. Transfer and Exchange.
---------------------
(a) Transfer and Exchange of Definitive Notes. When Definitive
Notes are presented by a Holder to the Registrar or a co-registrar with
a request:
(x) to register the transfer of the Definitive Notes; or
(y) to exchange such Definitive Notes for an equal principal
amount of Definitive Notes of other authorized denominations,
the Registrar shall register the transfer or make the exchange as requested if
its requirements for such transactions are met; provided, however, that the
Definitive Notes presented or surrendered for register of transfer or exchange:
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(i) shall be duly endorsed or accompanied by a written
instruction of transfer in form satisfactory to the Registrar duly
executed by such Holder or by his attorney, duly authorized in writing;
and
(ii) in the case of a Definitive Note that is a Transfer
Restricted Security, such request shall be accompanied by the following
additional information and documents, as applicable:
(A) if such Transfer Restricted Security is being
delivered to the Registrar by a Holder for registration in the
name of such Holder, without transfer, a certification to that
effect from such Holder (in substantially the form of Exhibit
B attached hereto); or
(B) if such Transfer Restricted Security is being
transferred to a "qualified institutional buyer" (as defined
in Rule 144A under the Securities Act) in accordance with Rule
144A under the Securities Act or pursuant to an exemption from
registration in accordance with Rule 144 or Rule 904 under the
Securities Act or pursuant to an effective registration
statement under the Securities Act, a certification to that
effect from such Holder (in substantially the form of Exhibit
B attached hereto); or
(C) if such Transfer Restricted Security is being
transferred in reliance on another exemption from the
registration requirements of the Securities Act, a certificate
to that effect from such Holder (in substantially the form of
Exhibit B attached hereto) and an Opinion of Counsel from such
Holder or the transferee reasonably acceptable to ACC and to
the Registrar to the effect that such transfer is in
compliance with the Securities Act.
(b) Transfer of a Definitive Note for a Beneficial Interest in a Global
Note. A Definitive Note may not be exchanged for a beneficial interest in a
Global Note except upon satisfaction of the requirements set forth below. Upon
receipt by the Trustee of a Definitive Note, duly endorsed or accompanied by
appropriate instruments of transfer, in form satisfactory to the Trustee,
together with:
(i) if such Definitive Note is a Transfer Restricted Security,
a certification from the Holder thereof (in substantially the form of
Exhibit B hereto) to the effect that such Definitive Note is being
transferred by such Holder either (x) to a "qualified institutional
buyer" (as defined in Rule 144A under the Securities Act) in accordance
with Rule 144A under the Securities Act or (y) based upon an Opinion of
Counsel from such Holder or the transferee reasonably acceptable to ACC
and to the Registrar, pursuant to another exemption from the
registration requirements of the Securities Act; and
(ii) whether or not such Definitive Note is a Transfer
Restricted Security, written instructions from the Holder thereof
directing the Trustee to make, or to direct the Note Custodian to make,
an endorsement on the Global Note to reflect an increase in the
aggregate principal amount of the Notes represented by the Global Note,
in which case the Trustee shall cancel such Definitive Note in
accordance with Section 2.11 hereof and cause, or direct the Note
Custodian to cause, in accordance with the standing instructions and
procedures existing between the Depository and the Note Custodian, the
aggregate principal amount of Notes represented by the Global Note to
be increased accordingly. If no Global Notes are then outstanding, ACC
shall issue and, upon receipt of an authentication order in accordance
with Section 2.02 hereof, the Trustee shall authenticate, a new Global
Note in the appropriate principal amount.
(c) Transfer and Exchange of Global Notes. The transfer and exchange of
Global Notes or beneficial interests therein shall be effected through the
Depository, in accordance with this Indenture and the
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procedures of the Depository therefor, which shall include restrictions on
transfer comparable to those set forth herein to the extent required by the
Securities Act.
(d) Transfer of a Beneficial Interest in a Global Note for a Definitive
Note.
(i) Any Person having a beneficial interest in a Global Note may upon
request exchange such beneficial interest for a Definitive Note. Upon receipt by
the Trustee of written instructions or such other form of instructions as is
customary for the Depository, from the Depository or its nominee on behalf of
any Person having a beneficial interest in a Global Note, and, in the case of a
Transfer Restricted Security, the following additional information and documents
(all of which may be submitted by facsimile):
(A) if such beneficial interest is being transferred to the
Person designated by the Depository as being the beneficial owner, a
certification to that effect from such Person (in substantially the
form of Exhibit B attached hereto); or
(B) if such beneficial interest is being transferred to a
"qualified institutional buyer" (as defined in Rule 144A under the
Securities Act) in accordance with Rule 144A under the Securities Act
or pursuant to an exemption from registration in accordance with Rule
144 or Rule 904 under the Securities Act or pursuant to an effective
registration statement under the Securities Act, a certification to
that effect from the transferor (in substantially the form of Exhibit B
attached hereto); or
(C) if such beneficial interest is being transferred in
reliance on another exemption from the registration requirements of the
Securities Act, a certification to that effect from the transferor (in
substantially the form of Exhibit B attached hereto) and an Opinion of
Counsel from the transferee or transferor reasonably acceptable to ACC
and to the Registrar to the effect that such transfer is in compliance
with the Securities Act;
in which case the Trustee or the Note Custodian, at the direction of the
Trustee, shall, in accordance with the standing instructions and procedures
existing between the Depository and the Note Custodian, cause the aggregate
principal amount of Global Notes to be reduced accordingly and, following such
reduction, ACC shall execute and, upon receipt of an authentication order in
accordance with Section 2.02 hereof, the Trustee shall authenticate and deliver
to the transferee, a Definitive Note in the appropriate principal amount.
(ii) Definitive Notes issued in exchange for a beneficial interest in a
Global Note pursuant to this Section 2.06(d) shall be registered in such names
and in such authorized denominations as the Depository, pursuant to instructions
from its direct or indirect participants or otherwise, shall instruct the
Trustee. The Trustee shall deliver such Definitive Notes to the Persons in whose
names such Notes are so registered.
(e) Restrictions on Transfer and Exchange of Global Notes.
Notwithstanding any other provision of this Indenture (other than the provisions
set forth in subsection (f) of this Section 2.06), a Global Note may not be
transferred as a whole except by the Depository to a nominee of the Depository
or by a nominee of the Depository to the Depository or another nominee of the
Depository or by the Depository or any such nominee to a successor Depository or
a nominee of such successor Depository.
(f) Authentication of Definitive Notes in Absence of Depository. If at
any time:
(i) the Depository for the Notes (x) notifies ACC that the
Depository is unwilling or unable to continue as Depository for the
Global Notes or (y) has ceased to be a clearing company registered
under the Exchange Act and, in each case, a successor Depository for
the Global Notes is not appointed by ACC within 90 days after delivery
of such notice;
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(ii) ACC, at its sole discretion, notifies the Trustee in
writing that it elects to cause the issuance of Definitive Notes under
this Indenture; or
(iii) a Default or Event of Default shall have occurred and be
continuing and the Registrar has received a written request from the
Depository to issue Definitive Notes;
then ACC shall execute, and the Trustee shall, upon receipt of an authentication
order in accordance with Section 2.02 hereof, authenticate and deliver,
Definitive Notes in an aggregate principal amount equal to the principal amount
of the Global Notes in exchange for such Global Notes.
(g) Legends.
(i) Except as permitted by the following paragraphs (ii), (iii) and
(iv), each Note certificate evidencing Global Notes and Definitive Notes (and
all Notes issued in exchange therefor or substitution thereof) shall bear
legends in substantially the following form:
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY
NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE
ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH BELOW. BY ITS
ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT), (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS NOTE
IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE
SECURITIES ACT OR (C) IT IS AN ACCREDITED INVESTOR (AS DEFINED IN RULE
501 (a)(1), (2), (3), OR (7) UNDER THE SECURITIES ACT (AN "ACCREDITED
INVESTOR'), (2) AGREES THAT IT WILL NOT WITHIN TWO YEARS AFTER THE
ORIGINAL ISSUANCE OF THIS NOTE RESELL OR OTHERWISE TRANSFER THIS NOTE
EXCEPT (A) TO ALLBRITTON COMMUNICATIONS COMPANY OR ANY SUBSIDIARY
THEREOF, (B) INSIDE THE UNITED STATES TO A QUALIFIED INSTITUTIONAL
BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) INSIDE
THE UNITED STATES TO AN ACCREDITED INVESTOR THAT, PRIOR TO SUCH
TRANSFER, FURNISHES (OR HAS FURNISHED ON ITS BEHALF BY A U.S.
BROKER-DEALER) TO THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER
OF THIS NOTE (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE
FOR THIS NOTE), (D) OUTSIDE THE UNITED STATES IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT (IF
AVAILABLE), (E) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY
RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), (F) IN ACCORDANCE
WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL IF ALLBRITTON
COMMUNICATIONS COMPANY SO REQUESTS), OR (G) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER 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. IN CONNECTION WITH ANY
TRANSFER OF THIS NOTE WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF
THIS NOTE, IF THE PROPOSED TRANSFEREE IS AN ACCREDITED INVESTOR, THE
HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE AND THE
COMPANY SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS
EITHER OF THEM MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS
BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT
SUBJECT TO, THE REGISTRATION
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REQUIREMENTS OF THE SECURITIES ACT. AS USED HEREIN, THE TERMS "OFFSHORE
TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANING GIVEN
TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
(ii) Upon any sale or transfer of a Transfer Restricted Security
pursuant to Rule 144 under the Securities Act or pursuant to an effective
registration statement under the Securities Act:
(A) in the case of any Transfer Restricted Security that is a
Definitive Note, the Registrar shall permit the Holder thereof to
exchange such Transfer Restricted Security for a Definitive Note that
does not bear the legend set forth in (i) above and rescind any
restriction on the transfer of such Transfer Restricted Security; and
(B) in the case of any Transfer Restricted Security
represented by a Global Note, such Transfer Restricted Security shall
not be required to bear the legend set forth in (i) above, but shall
continue to be subject to the provisions of Section 2.06(c) hereof;
provided, however, that with respect to any request for an exchange of
a Transfer Restricted Security that is represented by a Global Note for
a Definitive Note that does not bear the legend set forth in (i) above,
which request is made in reliance upon Rule 144, the Holder thereof
shall certify in writing to the Registrar that such request is being
made pursuant to Rule 144 (such certification to be substantially in
the form of Exhibit B attached hereto).
(iii) In case of the Offshore Global Note, after 40 days following the
date hereof and upon receipt by ACC and the Trustee of a certificate
substantially in the form of Exhibit C hereto, the Trustee shall authenticate an
Offshore Global Note or a Definitive Note, which does not bear the legend set
forth in (i) above, in exchange for such Transfer Restricted Security
representing the Offshore Global Note.
(iv) Notwithstanding the foregoing, upon consummation of the Exchange
Offer, ACC shall issue and, upon receipt of an authentication order in
accordance with Section 2.02 hereof, the Trustee shall authenticate, Series B
Notes in exchange for Series A Notes accepted for exchange in the Exchange
Offer, which Series B Notes shall not bear the legend set forth in (i) above,
and the Registrar shall rescind any restriction on the transfer of such Notes,
in each case unless the Holder of such Series A Notes is either (A) a
broker-dealer, (B) a Person participating in the distribution of the Series A
Notes or (C) a Person who is an affiliate (as defined in Rule 144A) of ACC.
(h) Cancellation and/or Adjustment of Global Notes. At such time as all
beneficial interests in Global Notes have been exchanged for Definitive Notes,
redeemed, repurchased or cancelled, all Global Notes shall be returned to or
retained and cancelled by the Trustee in accordance with Section 2.11 hereof. At
any time prior to such cancellation, if any beneficial interest in a Global Note
is exchanged for Definitive Notes, redeemed, repurchased or cancelled, the
principal amount of Notes represented by such Global Note shall be reduced
accordingly and an endorsement shall be made on such Global Note, by the Trustee
or the Note Custodian, at the direction of the Trustee, to reflect such
reduction.
(i) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges, ACC shall
execute and the Trustee shall authenticate Definitive Notes and Global Notes at
the Registrar's request.
(ii) No service charge shall be made to a Holder for any registration
of transfer or exchange, but ACC may require payment of a sum sufficient to
cover any transfer tax or similar governmental charge payable
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in connection therewith (other than any such transfer taxes or similar
governmental charge payable upon exchange or transfer pursuant to Sections 3.07,
3.10, 4.10, 4.15 and 9.05 hereof).
(iii) The Registrar shall not be required to register the transfer of or
exchange any Note selected for redemption in whole or in part, except the
unredeemed portion of any Note being redeemed in part.
(iv) All Definitive Notes and Global Notes issued upon any registration
of transfer or exchange of Definitive Notes or Global Notes shall be the valid
obligations of ACC, evidencing the same debt, and entitled to the same benefits
under this Indenture, as the Definitive Notes or Global Notes surrendered upon
such registration of transfer or exchange.
(v) ACC shall not be required:
(A) to issue, to register the transfer of or to exchange Notes
during a period beginning at the opening of business 15 days before the
day of any selection of Notes for redemption under Section 3.02 hereof
and ending at the close of business on the day of selection; or
(B) to register the transfer of or to exchange any Note so
selected for redemption in whole or in part, except the unredeemed
portion of any Note being redeemed in part; or
(C) to register the transfer of or to exchange a Note between
a record date and the next succeeding interest payment date.
(vi) Prior to due presentment for the registration of a transfer of any
Note, the Trustee, any Agent and ACC may deem and treat the Person in whose name
any Note is registered as the absolute owner of such Note for the purpose of
receiving payment of principal of and interest on such Note, and neither the
Trustee, any Agent nor ACC shall be affected by notice to the contrary.
(vii) The Trustee shall authenticate Definitive Notes and Global Notes
in accordance with the provisions of Section 2.02 hereof.
Section 2.07. Replacement Notes.
-----------------
If any mutilated Note is surrendered to the Trustee or ACC and the
Trustee receives evidence to its satisfaction of the destruction, loss or theft
of any Note, ACC shall issue and the Trustee, upon the written order of ACC
signed by two Officers of ACC, shall authenticate a replacement Note if the
Trustee's requirements for replacements of Notes are met. If required by the
Trustee or ACC, an indemnity bond must be supplied by the Holder that is
sufficient in the judgment of the Trustee and ACC to protect ACC, the Trustee,
any Agent and any authenticating agent from any loss that any of them may suffer
if a Note is replaced. ACC and the Trustee may charge for their expenses in
replacing a Note.
Every replacement Note is an additional obligation of ACC and shall be
entitled to all of the benefits of this Indenture equally and proportionately
with all other Notes duly issued hereunder.
Section 2.08. Outstanding Notes.
-----------------
The Notes outstanding at any time are all the Notes authenticated by
the Trustee except for those cancelled by it, those delivered to it for
cancellation, those reductions in the interest in a Global Note effected by the
Trustee in accordance with the provisions hereof, and those described in this
Section as not outstanding.
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If a Note is replaced pursuant to Section 2.07 hereof, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a bona fide purchaser.
If the principal amount of any Note is considered paid under Section
4.01 hereof, it ceases to be outstanding and interest on it ceases to accrue.
Subject to Section 2.09 hereof, a Note does not cease to be outstanding
because ACC or an Affiliate of ACC holds the Note.
If the Paying Agent (other than ACC, a Subsidiary or any Affiliate
thereof) holds, on a redemption date or maturity date, money sufficient to pay
Notes payable on that date, then on and after that date such Notes shall be
deemed to be no longer outstanding and shall cease to accrue interest.
Section 2.09. Treasury Notes.
--------------
In determining whether the Holders of the required principal amount of
Notes have concurred in any direction, waiver or consent, Notes owned by ACC or
by any Affiliate thereof shall be considered as though not outstanding, except
that for the purposes of determining whether the Trustee shall be protected in
relying on any such direction, waiver or consent, only Notes that a Responsible
Officer knows to be so owned shall be so considered.
Section 2.10. Temporary Notes.
---------------
Until Definitive Notes are ready for delivery, ACC may prepare and the
Trustee shall authenticate temporary Notes upon a written order of ACC signed by
two Officers of ACC. Temporary Notes shall be substantially in the form of
Definitive Notes but may have variations that ACC and the Trustee consider
appropriate for temporary Notes and as shall be reasonably acceptable to the
Trustee. Without unreasonable delay, ACC shall prepare and the Trustee shall
authenticate Definitive Notes in exchange for temporary Notes. Holders of
temporary Notes shall be entitled to all of the benefits of this Indenture.
Section 2.11. Cancellation.
------------
ACC at any time may deliver Notes to the Trustee for cancellation. The
Registrar and Paying Agent shall forward to the Trustee any Notes surrendered to
them for registration of transfer, exchange or payment. The Trustee and no one
else shall cancel all Notes surrendered for registration of transfer, exchange,
payment, replacement or cancellation and shall destroy cancelled Notes (subject
to the record retention requirements of the Exchange Act), unless ACC directs
them to be returned to it. ACC may not issue new Notes to replace Notes that it
has redeemed or paid or that have been delivered to the Trustee for
cancellation. All cancelled Notes held by the Trustee shall be destroyed and
certification of their destruction delivered to ACC unless by a written order
signed by two Officers of ACC, ACC shall direct that cancelled Notes be returned
to it.
Section 2.12. Record Date.
-----------
The record date for purposes of determining the identity of Holders of
the Notes entitled to vote or consent to any action by vote or consent
authorized or permitted under this Indenture shall be determined as provided for
in TIA ss. 316(c).
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Section 2.13. Defaulted Interest.
------------------
If ACC defaults in a payment of interest on the Notes, it shall pay the
defaulted interest in any lawful manner plus, to the extent lawful, interest
payable on the defaulted interest, to the Persons who are Holders on a
subsequent special record date, which date shall be at the earliest practicable
date but in all events at least five Business Days prior to the payment date, in
each case at the rate provided in the Notes and in Section 4.01 hereof. ACC
shall notify the Trustee in writing of the amount of defaulted interest proposed
to be paid on each Note and the date of the proposed payment. ACC shall, with
the consent of the Trustee, fix or cause to be fixed each such special record
date and payment date. At least 15 days before the special record date, ACC (or,
upon the written request of ACC, the Trustee in the name and at the expense of
ACC) shall mail or cause to be mailed to the Holders a notice that states the
special record date, the related payment date and the amount of such interest to
be paid.
Section 2.14. Issuance of Additional Notes.
----------------------------
ACC shall be entitled to issue Additional Notes under this Indenture
which shall have substantially identical terms as the Series A Notes, other than
with respect to the Issuance Date, issue price, amount of interest payable on
the first payment date applicable thereto (and, if such Additional Notes shall
be issued pursuant to a registration statement under the Securities Act, other
than with respect to transfer restrictions or if such Additional Notes shall be
required to be registered under the Securities Act pursuant to the terms of a
registration rights or similar agreement, such Additional Notes shall be
exchangeable for and ACC shall issue and the Trustee shall authenticate Series B
Notes substantially in the form of Exhibit A hereto, but without the legend set
forth in Section 2.06(g)(i), to be delivered in exchange for such Additional
Notes); provided that any issuance is not prohibited by Section 4.09.
With respect to any Additional Notes, ACC shall set forth in a
resolution of its Board of Directors (or a duly appointed committee thereof) and
in an Officers' Certificate, a copy of each of which shall be delivered to the
Trustee, the following information:
(1) the aggregate principal amount of such Additional Notes to
be authenticated and delivered pursuant to this Indenture;
(2) the issue price and the issue date of such Additional
Notes, the amount of interest payable on the first payment date
applicable thereto and the CUSIP, ISIN or Common Code for such
Additional Notes; provided that no Additional Notes may be issued at a
price that would cause such Additional Notes to have "original issue
discount" within the meaning of Section 1273 of the Internal Revenue
Code of 1986, as amended; and
(3) whether such Additional Notes shall be Transfer Restricted
Securities and issued in the form of Series A Notes as set forth in
Exhibit A hereto, or shall be registered securities and issued in the
form of Series B Notes, but without the legend set forth in Section
2.06(g)(i).
ARTICLE 3
REDEMPTION AND PREPAYMENT
Section 3.01. Notices to Trustee.
------------------
If ACC elects to redeem Notes pursuant to the optional redemption
provisions of Section 3.07 hereof, it shall furnish to the Trustee, at least 30
days but not more than 60 days before a redemption date, an Officers'
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Certificate setting forth (i) the Section of this Indenture pursuant to which
the redemption shall occur, (ii) the redemption date, (iii) the principal amount
of Notes to be redeemed and (iv) the redemption price.
If ACC is required to make an offer to redeem Notes pursuant to the
provisions of Section 3.10 or 4.15 hereof, it shall furnish to the Trustee at
least 30 days but not more than 60 days before a redemption date, an Officers'
Certificate setting forth (i) the Section of this Indenture pursuant to which
the redemption shall occur, (ii) the redemption date, (iii) the maximum
principal amount of Notes to be redeemed, (iv) the redemption price and (v)
further setting forth a statement to the effect that (a) the Company or one of
its Restricted Subsidiaries has effected an Asset Sale and the conditions set
forth in Section 4.10 have been satisfied or (b) a Change of Control has
occurred and the conditions set forth in Section 4.15 have been satisfied.
Section 3.02. Selection of Notes To Be Redeemed.
---------------------------------
If less than all of the Notes are to be redeemed at any time, the
Trustee shall select the Notes to be redeemed among the Holders in compliance
with the requirements of the principal national securities exchange, if any, on
which the Notes are listed or, if the Notes are not so listed, on a pro rata
basis, by lot or in accordance with any other method the Trustee considers fair
and appropriate. In the event of partial redemption by lot, the particular Notes
to be redeemed shall be selected, unless otherwise provided herein, not less
than 30 nor more than 60 days prior to the redemption date by the Trustee from
the outstanding Notes not previously called for redemption. ACC shall notify the
Trustee in writing of the listing of the Notes on any national securities
exchange.
The Trustee shall promptly notify ACC in writing of the Notes selected
for redemption and, in the case of any Note selected for partial redemption, the
principal amount thereof to be redeemed. Notes and portions of them selected
shall be in amounts of $1,000 or whole multiples of $1,000; except that if all
Notes of a Holder are to be redeemed, the entire outstanding amount of Notes
held by such Holder, even if not a multiple of $1,000, shall be redeemed. Except
as provided in the preceding sentence, provisions of this Indenture that apply
to Notes called for redemption also apply to portions of Notes called for
redemption.
In the event ACC is required to make an offer to redeem Notes pursuant
to Sections 3.10 and 4.10 hereof and the amount of the Excess Proceeds from the
Asset Sale are not evenly divisible by $1,000, the Trustee shall promptly refund
to the Company any remaining Excess Proceeds.
Section 3.03. Notice of Redemption.
--------------------
Subject to the provisions of Section 3.10 hereof, at least 30 days but
not more than 60 days before a redemption date, ACC shall mail or cause to be
mailed, by first class mail, a notice of redemption to each Holder whose Notes
are to be redeemed at its registered address.
The notice shall identify the Notes to be redeemed and shall state:
(a) the redemption date;
(b) the redemption price;
(c) if any Note is being redeemed in part, that, after the
redemption date, upon surrender of such Note, a new Note or Notes in
principal amount equal to the unredeemed portion shall be issued upon
cancellation of the original Note;
(d) the name and address of the Paying Agent;
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(e) that Notes called for redemption must be surrendered to
the Paying Agent to collect the redemption price;
(f) that, unless ACC defaults in making such redemption
payment, interest on Notes called for redemption ceases to accrue on
and after the redemption date;
(g) the paragraph of the Notes and/or Section of this
Indenture pursuant to which the Notes called for redemption are being
redeemed; and
(h) that no representation is made as to the correctness or
accuracy of the CUSIP number, if any, listed in such notice or printed
on the Notes.
At ACC's request, the Trustee shall give the notice of redemption in
ACC's name and at its expense; provided, however, that ACC shall have delivered
to the Trustee, at least 45 days prior to the redemption date, an Officers'
Certificate requesting that the Trustee give such notice and setting forth the
information to be stated in such notice as provided in the preceding paragraph.
Section 3.04. Effect of Notice of Redemption.
------------------------------
Once notice of redemption is mailed in accordance with Section 3.03
hereof, Notes called for redemption become irrevocably due and payable on the
redemption date at the redemption price. A notice of redemption may not be
conditional.
Section 3.05. Deposit of Redemption Price.
---------------------------
One Business Day prior to the redemption date, ACC shall deposit with
the Trustee or with the Paying Agent money sufficient to pay the redemption
price of and accrued interest on all Notes to be redeemed on that date. The
Trustee or the Paying Agent shall promptly return to ACC any money deposited
with the Trustee or the Paying Agent by ACC in excess of the amounts necessary
to pay the redemption price of, and accrued interest on, all Notes to be
redeemed.
If ACC complies with the provisions of the preceding paragraph, on and
after the redemption date, interest shall cease to accrue on the Notes or the
portions of Notes called for redemption. If a Note is redeemed on or after an
interest record date but on or prior to the related interest payment date, then
any accrued and unpaid interest shall be paid to the Person in whose name such
Note was registered at the close of business on such record date. If any Note
called for redemption shall not be so paid upon surrender for redemption because
of the failure of ACC to comply with the preceding paragraph, interest shall be
paid on the unpaid principal from the redemption date until such principal is
paid and, to the extent lawful, on any interest not paid on such unpaid
principal, in each case at the rate provided in the Notes and in Section 4.01
hereof.
Section 3.06. Notes Redeemed in Part.
----------------------
Upon surrender of a Note that is redeemed in part, ACC shall issue and,
upon ACC's written request, the Trustee shall authenticate for the Holder at the
expense of ACC, a new Note equal in principal amount to the unredeemed portion
of the Note surrendered.
Section 3.07. Optional Redemption.
-------------------
(a) Except as set forth in clauses (b) and (c) below of this Section
3.07, ACC shall not have the option to redeem the Notes pursuant to this Section
3.07 prior to December 15, 2007. Thereafter, ACC shall
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have the option to redeem the Notes, in whole or in part, at the redemption
prices (expressed as percentages of principal amount) set forth below plus
accrued and unpaid interest thereon, if any, to the applicable date of
redemption, if redeemed during the twelve-month period beginning on December 15
of the years indicated below:
Year Percentage
---- ----------
2007................................... 103.875%
2008................................... 102.583%
2009................................... 101.292%
2010 and thereafter.................... 100.000%
(b) Notwithstanding the provisions of clause (a) of this Section 3.07,
at any time on or prior to December 15, 2005, ACC shall have the option to
redeem up to 35% of the aggregate principal amount of the Notes (including the
original principal amount of any Additional Notes) at a redemption price equal
to 107.750% of the aggregate principal amount thereof, plus accrued and unpaid
interest thereon, if any, to the applicable date of redemption, with the net
proceeds of one or more public offerings of ACC Common Stock; provided that at
least 65% of the aggregate principal amount of the Notes (including the original
principal amount of any Additional Notes) remains outstanding immediately after
the occurrence of such redemption and provided further that each such redemption
shall occur within 60 days of the date of the closing of the applicable public
offering.
(c) At any time prior to December 15, 2005, upon a Change of Control,
ACC shall have the option to redeem the Notes, in whole or in part, upon not
less than 30 days' notice, within 180 days of such Change of Control, at a
redemption price equal to the sum of (i) the principal amount thereof, plus (ii)
accrued and unpaid interest thereon, if any, to the applicable date of
redemption, plus (iii) the Applicable Premium.
(d) Any redemption pursuant to this Section 3.07 shall be made, to the
extent applicable, pursuant to the provisions of Sections 3.01 through 3.06
hereof.
The calculation of any Applicable Premium required by Section 3.07(c)
above shall be set forth in an Officers' Certificate delivered to the Trustee.
Section 3.08. Mandatory Redemption.
--------------------
ACC shall not be required to make mandatory redemption or sinking fund
payments with respect to the Notes.
Section 3.09. [INTENTIONALLY OMITTED].
Section 3.10. Offer To Purchase by Application of Excess Proceeds.
---------------------------------------------------
In the event that, pursuant to Section 4.10 hereof, ACC shall be
required to commence an offer to all Holders and, to the extent required by the
terms thereof, the holders of Pari Passu Debt, to purchase Notes and Pari Passu
Debt (an "Asset Sale Offer"), it shall follow the procedures specified below.
The Asset Sale Offer shall remain open for a period of 20 Business Days
following its commencement and no longer, except to the extent that a longer
period is required by applicable law (the "Offer Period"). No later than five
Business Days after the termination of the Offer Period (the "Purchase Date"),
ACC shall purchase the principal amount of Notes and Pari Passu Debt required to
be purchased pursuant to Section 4.10 hereof (the "Offer Amount") or, if less
than the Offer Amount has been tendered, all Notes and Pari Passu Debt
-23-
tendered in response to the Asset Sale Offer. Payment for any Notes so purchased
shall be made in the same manner as interest payments are made.
If the Purchase Date is on or after an interest record date and on or
before the related interest payment date, any accrued and unpaid interest shall
be paid to the Person in whose name a Note is registered at the close of
business on such record date, and no additional interest shall be payable to
Holders who tender Notes pursuant to the Asset Sale Offer.
Upon the commencement of an Asset Sale Offer, ACC shall send, by first
class mail, a notice to the Trustee and to each of the Holders, with a copy to
the Trustee. The notice shall contain all instructions and materials necessary
to enable such Holders to tender Notes pursuant to the Asset Sale Offer. The
procedures for commencing an Asset Sale Offer to holders of Pari Passu Debt
shall be governed by the terms of the agreements governing such Pari Passu Debt.
The Asset Sale Offer shall be made to all Holders of Notes. The notice, which
shall govern the terms of the Asset Sale Offer, shall state:
(a) that the Asset Sale Offer is being made pursuant to this
Section 3.10 and Section 4.10 hereof and the length of time the Asset
Sale Offer shall remain open;
(b) the Offer Amount, the purchase price and the Purchase
Date;
(c) that any Note not tendered or accepted for payment shall
continue to accrue interest;
(d) that, unless ACC defaults in making such payment, any Note
accepted for payment pursuant to the Asset Sale Offer shall cease to
accrue interest after the Purchase Date;
(e) that Holders electing to have a Note purchased pursuant to
an Asset Sale Offer may only elect to have all of such Note purchased
and may not elect to have only a portion of such Note purchased;
(f) that Holders electing to have a Note purchased pursuant to
any Asset Sale Offer shall be required to surrender the Note, with the
form titled "Option of Holder to Elect Purchase" on the reverse of the
Note completed, or transfer by book-entry transfer, to ACC, a
depositary, if appointed by ACC, or a Paying Agent at the address
specified in the notice at least three days before the Purchase Date;
(g) that Holders shall be entitled to withdraw their election
if ACC, the depositary or the Paying Agent, as the case may be,
receives, not later than the expiration of the Offer Period, a
telegram, telex, facsimile transmission or letter setting forth the
name of the Holder, the principal amount of the Note the Holder
delivered for purchase and a statement that such Holder is withdrawing
his election to have such Note purchased;
(h) that, if the aggregate principal amount of Notes
surrendered by Holders and holders of Pari Passu Debt exceeds the Offer
Amount, ACC shall select the Notes to be purchased on a pro rata basis
(with such adjustments as may be deemed appropriate by ACC so that only
Notes in denominations of $1,000, or integral multiples thereof, shall
be purchased); and
(i) that Holders whose Notes were purchased only in part shall
be issued new Notes equal in principal amount to the unpurchased
portion of the Notes surrendered (or transferred by book-entry
transfer).
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On or before the Purchase Date, ACC shall, to the extent lawful, accept
for payment, on a pro rata basis to the extent necessary, the Offer Amount of
Notes or portions thereof tendered pursuant to the Asset Sale Offer, or if less
than the Offer Amount has been tendered, all Notes tendered, and shall deliver
to the Trustee an Officers' Certificate stating that such Notes or portions
thereof were accepted for payment by ACC in accordance with the terms of this
Section 3.10. ACC, the Depository or the Paying Agent, as the case may be, shall
promptly (but in any case not later than three Business Days after the Purchase
Date) mail or deliver to each tendering Holder an amount equal to the purchase
price of the Notes tendered by such Holder and accepted by ACC for purchase, and
ACC shall promptly issue a new Note, and the Trustee, upon written request from
ACC, shall authenticate and mail or deliver such new Note to such Holder, in a
principal amount equal to any unpurchased portion of the Note surrendered. Any
Note not so accepted shall be promptly mailed or delivered by ACC to the Holder
thereof. ACC shall publicly announce the results of the Asset Sale Offer on the
Purchase Date.
Other than as specifically provided in this Section 3.10, any purchase
pursuant to this Section 3.10 shall be made pursuant to the provisions of
Sections 3.01 through 3.06 hereof.
ARTICLE 4
COVENANTS
Section 4.01. Payment of Notes.
----------------
ACC shall pay or cause to be paid the principal of, premium, if any,
and interest on the Notes (including any additional interest required to be paid
pursuant to the provisions of the Registration Rights Agreement) on the dates
and in the manner provided in the Notes. Principal, premium, if any, and
interest shall be considered paid on the date due if the Paying Agent, if other
than ACC or a Restricted Subsidiary thereof, holds as of 10:00 a.m. Eastern Time
on the due date money deposited by ACC in immediately available funds and
designated for and sufficient to pay all principal, premium, if any, and
interest then due. The Paying Agent shall return to ACC, no later than five days
following the date of payment, any money (including accrued interest) that
exceeds such amount of principal of, premium, if any, and interest paid on the
Notes.
ACC shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue principal at the rate equal to
1% per annum in excess of the then applicable interest rate on the Notes to the
extent lawful; it shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue installments of interest
(without regard to any applicable grace period) at the same rate to the extent
lawful.
Section 4.02. Maintenance of Office or Agency.
-------------------------------
ACC shall maintain in the Borough of Manhattan, The City of New York,
an office or agency (which may be an office of the Trustee or an affiliate of
the Trustee, Registrar or co-registrar) where Notes may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
ACC in respect of the Notes and this Indenture may be served. ACC shall 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 ACC 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.
ACC 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 ACC of its
obligation to
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maintain an office or agency in the Borough of Manhattan, The City of New York
for such purposes. ACC shall 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.
ACC hereby designates the office of the Trustee's affiliate, State
Street Bank and Trust Company, N.A., located at 61 Broadway, 15th Floor,
Corporate Trust Window, New York, New York 10006, as one such office or agency
of ACC in accordance with Section 2.03 hereof.
Section 4.03. Reports.
-------
(a) Whether or not required by the rules and regulations of the SEC and
within the applicable time periods that are (or would be) prescribed thereby, so
long as any Notes are outstanding, ACC shall furnish to the Trustee and the
Trustee shall furnish to all Holders (i) all quarterly and annual financial
information that would be required to be contained in a filing with the SEC on
Forms 10-Q and 10-K if ACC was required to file such forms, including a
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" and, with respect to the annual information only, a report thereon
by ACC's certified independent accountants, and (ii) all reports that would be
required to be filed with the SEC on Form 8-K if ACC was required to file such
reports. In addition, whether or not required by the rules and regulations of
the SEC, ACC shall file a copy of all such information with the SEC for public
availability (unless the SEC will not accept such a filing) and shall promptly
make such information available to all securities analysts and prospective
investors who request it in writing. ACC shall at all times comply with TIA ss.
314(a).
(b) For so long as any Transfer Restricted Securities remain
outstanding, ACC shall furnish to all Holders and prospective purchasers of the
Notes designated by the holders of Transfer Restricted Securities, promptly upon
their request, the information required to be delivered pursuant to Rule
144A(d)(4) under the Securities Act.
(c) ACC shall reimburse the Trustee for its reasonable expenses
incurred in reproducing a sufficient number of copies of all reports and other
documents and information that the Trustee may be required to deliver to the
Holders under this Section 4.03.
Section 4.04. Compliance Certificate.
----------------------
(a) ACC shall deliver to the Trustee, within 120 days after the end of
each fiscal year, an Officers' Certificate stating that a review of the
activities of ACC and its Restricted Subsidiaries during the preceding fiscal
year has been made under the supervision of the signing Officers with a view to
determining whether each has kept, observed, performed and fulfilled its
obligations under this Indenture, and further stating, as to each such Officer
signing such certificate, that, to the best of his or her knowledge, each has
kept, observed, performed and fulfilled each and every covenant contained in
this Indenture and is not in default in the performance or observance of any of
the terms, provisions and conditions of this Indenture (or, if a Default or
Event of Default shall have occurred, describing all such Defaults or Events of
Default of which he or she may have knowledge and what action each is taking or
proposes to take with respect thereto) and that, to the best of his or her
knowledge, no event has occurred and remains in existence by reason of which
payments on account of the principal of or interest, if any, on the Notes is
prohibited or if such event has occurred, a description of the event and what
action each is taking or proposes to take with respect thereto.
(b) So long as not contrary to the then current recommendations of the
American Institute of Certified Public Accountants, the year-end financial
statements delivered pursuant to Section 4.03(a) above shall be accompanied by a
written statement of ACC's independent public accountants (who shall be a firm
of established national reputation reasonably satisfactory to the Trustee) that
in making the examination necessary for
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certification of such financial statements, nothing has come to their attention
that would lead them to believe that ACC has violated any provisions of Sections
4.01, 4.05, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.14 or 4.15 hereof or of
Article Five hereof or, if any such violation has occurred, specifying the
nature and period of existence thereof, it being understood that such
accountants shall not be liable directly or indirectly to any Person for any
failure to obtain knowledge of any such violation.
(c) ACC shall, so long as any of the Notes are outstanding, deliver to
the Trustee, forthwith upon any Officer becoming aware of (i) any Default or
Event of Default or (ii) any event of default under any other mortgage,
indenture or instrument as that term is used in Section 6.01(e) hereof, an
Officers' Certificate specifying such Default or Event of Default and what
action ACC is taking or proposes to take with respect thereto.
Section 4.05. Taxes.
-----
ACC shall, and shall cause each of its Subsidiaries to, pay prior to
delinquency all material taxes, assessments and governmental levies, except such
as are contested in good faith and by appropriate proceedings.
Section 4.06. Stay, Extension and Usury Laws.
------------------------------
ACC covenants (to the extent that it may lawfully do so) that it shall
not at any time insist upon, plead, or in any manner whatsoever claim or take
the benefit or advantage of, any stay, extension or usury law wherever enacted,
now or at any time hereafter in force, that may affect the covenants or the
performance of this Indenture; and ACC (to the extent that it may lawfully do
so) hereby expressly waives all benefit or advantage of any such law and
covenants that it shall not, by resort to any such law, hinder, delay or impede
the execution of any power herein granted to the Trustee, but shall suffer and
permit the execution of every such power as though no such law has been enacted.
Section 4.07. Restricted Payments.
-------------------
ACC shall not and shall not permit any of its Restricted Subsidiaries
to, directly or indirectly: (i) declare or pay any dividend on, or make any
payment or distribution in respect of, or purchase, redeem or retire for value
any Capital Stock of ACC or any of its Restricted Subsidiaries (except Capital
Stock held by ACC or a Wholly Owned Restricted Subsidiary or Majority Owned
Subsidiary), other than in exchange for ACC's own Capital Stock (other than
Disqualified Stock); (ii) make any principal payment on, or redeem, repurchase,
defease or otherwise acquire or retire for value, more than one year prior to a
scheduled principal payment or maturity, Debt of ACC that is expressly
subordinated in right of payment to the Notes; or (iii) make any Restricted
Investments (such payments and other actions described in the immediately
preceding clauses (i), (ii) and (iii), collectively, "Restricted Payments"),
unless at the time of and after giving effect to such proposed Restricted
Payment:
(a) no Default or Event of Default shall have occurred and be
continuing; and
(b) such Restricted Payment, together with the aggregate
amount of all other Restricted Payments declared or made after June 30,
1992 (net of any Restricted Payments repaid to ACC or any of its
Restricted Subsidiaries to the extent not included in clause (2) below
and any Restricted Payment made by ACC pursuant to clause (z) below)
shall not exceed, at the date of determination, the sum of (1) an
amount equal to ACC's Cumulative Operating Cash Flow from June 30, 1992
to the end of ACC's most recently ended full fiscal quarter, taken as a
single accounting period, less the product of 1.4 times ACC's
Cumulative Total Interest Expense from June 30, 1992 to the end of
ACC's most recently ended full fiscal quarter, taken as a single
accounting period, plus (2) an amount equal to the net cash proceeds
received by ACC as capital contributions to ACC (other than from any of
its Restricted
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Subsidiaries and other than from the return of advances made by
Perpetual in connection with the Refinancing) after June 30, 1992, or
from the issuance and sale by ACC (other than to any of its Restricted
Subsidiaries) after June 30, 1992 of Capital Stock (other than
Disqualified Stock), plus (3) $3.5 million.
The foregoing provisions shall not prohibit:
(w) the payment of any dividend within 60 days after the date
of declaration thereof, if at said date of declaration such payment
would have complied with the provisions of this Section 4.07;
(x) any transaction with an officer or director of ACC entered
into in the ordinary course of business (including compensation or
employee benefit arrangements with any officer or director of ACC);
(y) the payment of any dividend by a Majority Owned Subsidiary
to holders of its Capital Stock; and
(z) so long as no Default or Event of Default shall have
occurred and be continuing, one or more Restricted Payments in an
aggregate amount of up to $25.0 million on or after the Issuance Date;
provided that after giving effect to any such Restricted Payment ACC
could incur $1.00 of additional Debt under the first paragraph of
Section 4.09.
The amount of all Restricted Payments (other than cash) shall be the
fair market value (evidenced by a resolution of ACC's Board of Directors set
forth in an Officers' Certificate delivered to the Trustee) on the date of the
Restricted Payment of the asset proposed to be transferred by ACC or such
Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment.
At the conclusion of each calendar month, ACC shall deliver to the Trustee an
Officers' Certificate identifying the Restricted Payments made during the prior
month, stating that such Restricted Payments were permitted, setting forth the
amount of Restricted Payments still available to be made and setting forth the
basis upon which the calculations required by this Section 4.07 were computed,
which calculations may be based upon ACC's latest available financial
statements.
Section 4.08. Dividend and Other Payment Restrictions Affecting Subsidiaries.
--------------------------------------------------------------
ACC shall not, and shall not permit any of its Restricted Subsidiaries
to, directly or indirectly, create or otherwise cause or suffer to exist or
become effective any encumbrance or restriction on the ability of any Restricted
Subsidiary to (i)(a) pay dividends or make any other distributions to ACC or any
of its Restricted Subsidiaries (1) on its Capital Stock or (2) with respect to
any other interest or participation in, or measured by, its profits or (b) pay
any Debt owed to ACC or any of its Restricted Subsidiaries, (ii) make loans or
advances to ACC or any of its Restricted Subsidiaries or (iii) transfer any of
its properties or assets to ACC or any of its Restricted Subsidiaries, except
for such encumbrances or restrictions existing under or by reason of (A) Debt
existing on the date of this Indenture, (B) Debt permitted to be incurred
pursuant to clauses (vi) or (vii) of the second paragraph of Section 4.09 hereof
or (C) any amendments, modifications, restatements, renewals, increases,
supplements, refundings, replacements or refinancings are no more restrictive
with respect to such dividend and other payment restrictions than those
contained in the agreements governing such Debt as in effect on the date of this
Indenture.
Section 4.09. Incurrence of Debt and Issuance of Preferred Stock.
--------------------------------------------------
ACC shall not, and shall not permit any of its Restricted Subsidiaries
to, (i) directly or indirectly, create, incur, assume, guarantee or otherwise
become directly or indirectly liable, contingently or otherwise, with respect to
(collectively, "incur") any Debt (including Acquired Debt) or (ii) issue any
shares of preferred stock;
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provided, however, that ACC may (a) issue preferred stock that is not
Disqualified Stock at any time and (b) incur Debt (including Acquired Debt) or
issue shares of Disqualified Stock if, in each case, the Debt to Operating Cash
Flow Ratio of ACC and its Restricted Subsidiaries at the time of the incurrence
of such Debt or the issuance of such shares of Disqualified Stock, after giving
pro forma effect thereto, is 7:1 or less; provided, further, that any such Debt
incurred by ACC that is not Senior Debt shall have a Weighted Average Life to
Maturity no shorter than the Weighted Average Life to Maturity of the Notes.
The foregoing limitations shall not apply to the incurrence of any of
the following (collectively, "Permitted Debt"):
(i) revolving credit Debt of ACC under the Senior Credit
Facility not to exceed $100.0 million at any time outstanding;
(ii) intercompany Debt between or among ACC and any of its
Wholly Owned Restricted Subsidiaries or a Majority Owned Subsidiary
made pursuant to an intercompany note in the form attached as Exhibit D
hereto that provides that any such Debt of ACC is subordinated to the
Notes; provided, that (x) any disposition, pledge or transfer of any
such Debt to a Person (other than ACC or a Wholly Owned Restricted
Subsidiary or a Majority Owned Subsidiary) will be deemed to be an
incurrence of such Debt by the obligor not permitted by this clause
(ii) and (y) any transaction pursuant to which any Wholly Owned
Restricted Subsidiary or Majority Owned Subsidiary that has Debt owing
to ACC or any other Wholly Owned Restricted Subsidiary or a Majority
Owned Subsidiary ceases to be a Wholly Owned Restricted Subsidiary or a
Majority Owned Subsidiary shall be deemed to be the incurrence of Debt
by ACC or such other Wholly Owned Restricted Subsidiary or Majority
Owned Subsidiary that is not permitted by this clause (ii);
(iii) Debt represented by the existing 8.875% Notes and, until
the date of redemption or purchase thereof, the 9 3/4% Debentures;
(iv) Debt represented by the Notes;
(v) Debt existing on the date of this Indenture;
(vi) other Debt incurred after the date of this Indenture by
ACC in an aggregate principal amount at any time outstanding not to
exceed $40.0 million less the sum of (a) the aggregate principal amount
of Debt incurred plus (b) the aggregate liquidation preference of
preferred stock issued by Restricted Subsidiaries pursuant to clause
(vii) of this paragraph;
(vii) Debt incurred and shares of preferred stock issued by
Restricted Subsidiaries, so long as the sum of (a) the aggregate
principal amount of all outstanding Debt of Restricted Subsidiaries
plus (b) the aggregate liquidation preference of all outstanding
preferred stock of Restricted Subsidiaries shall not exceed at any time
$20.0 million less the aggregate principal amount of Debt in excess of
$20.0 million incurred by ACC pursuant to clause (vi) of this
paragraph;
(viii) the incurrence by ACC or any of its Restricted
Subsidiaries of Debt in connection with the acquisition of assets or a
new Restricted Subsidiary; provided that such Debt was incurred by the
prior owner of such assets or such Restricted Subsidiary prior to such
acquisition by ACC or one of its Restricted Subsidiaries and was not
incurred in connection with, or in contemplation of, such acquisition
by ACC or one of its Restricted Subsidiaries; and, provided further
that the Debt to Operating Cash Flow Ratio of ACC and its Restricted
Subsidiaries after giving pro forma effect to such acquisition and such
incurrence would be 7:1 or less;
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(ix) Debt in respect of interest rate protection or hedging
arrangements entered into by ACC to fix the floating interest rate or
float the fixed interest rate of any Debt permitted to be incurred
under this Indenture; and
(x) Debt of ACC incurred in exchange for or the proceeds of
which are used to exchange, refinance or refund any of the foregoing
Debt so long as (a) the principal amount of the Debt incurred does not
exceed the principal amount (plus any premium) of the Debt so
exchanged, refinanced or refunded, plus the amount of reasonable
expenses incurred in connection therewith, (b) the Debt incurred does
not have an average life shorter than the average life of the Debt
being so exchanged, refinanced or refunded and (c) if applicable, the
Debt incurred ranks as subordinated in right of payment to the Notes as
the Debt being so exchanged, refinanced or refunded.
ACC shall not permit any of its Unrestricted Subsidiaries to incur Debt
that would be recourse to ACC or any Restricted Subsidiary or any of their
respective assets.
Section 4.10. Asset Sales.
-----------
ACC shall not, and shall not permit any of its Restricted Subsidiaries
to, directly or indirectly, engage in any Asset Sale unless (i) ACC (or the
Restricted Subsidiary, as the case may be) receives consideration at the time of
such Asset Sale at least equal to the fair market value (evidenced by a
resolution of ACC's Board of Directors set forth in an Officers' Certificate
delivered to the Trustee) of the assets or Capital Stock issued or sold or
otherwise disposed of and (ii) at least 85% of the consideration therefor
received by ACC or such Restricted Subsidiary is in the form of cash or Cash
Equivalents; provided, however, that ACC (or the Restricted Subsidiary, as the
case may be) may receive Permitted Asset Sale Consideration in lieu of cash or
Cash Equivalents if ACC and its Restricted Subsidiaries could incur, on a pro
forma basis after giving effect to such Asset Sale and receipt of such Permitted
Asset Sale Consideration as if the same had occurred at the beginning of the
most recent four full fiscal quarters ending immediately prior to the date of
such Asset Sale, at least $1.00 of additional Debt (other than Permitted Debt)
pursuant to Section 4.09 hereof. Within one year after the receipt of any Net
Cash Proceeds from any Asset Sale, ACC (or the Restricted Subsidiary, as the
case may be) may apply such Net Cash Proceeds, at its option, (a) to retire
Senior Debt or (b) to the purchase of a controlling interest in another business
or to the purchase of capital assets, in each case, in the same line of business
as ACC was engaged in on the date of this Indenture. Any Net Cash Proceeds from
any Asset Sale that are not applied or invested as provided in the preceding
sentence constitute Excess Proceeds (the "Excess Proceeds").
Within five Business Days of each date on which the aggregate amount of
Excess Proceeds exceeds $5.0 million, ACC shall make an Asset Sale Offer to
purchase the maximum principal amount of Notes and any Pari Passu Debt that may
be purchased out of the Excess Proceeds, at an offer price in cash in an amount
equal to 100% of the principal amount (or accreted value, as applicable)
thereof, plus accrued and unpaid interest thereon, if any, to the date of
purchase, in accordance with the procedures set forth in this Indenture and the
agreements governing such Pari Passu Debt, as applicable. To the extent that the
aggregate amount of Notes and Pari Passu Debt tendered pursuant to Section 3.10
hereof is less than the Excess Proceeds, ACC (or such Restricted Subsidiary, as
the case may be) may use any remaining Excess Proceeds for general corporate
purposes. If the aggregate principal amount of Notes and Pari Passu Debt
surrendered by the holders thereof exceeds the amount of Excess Proceeds, the
Trustee shall select the Notes and Pari Passu Debt to be purchased on a pro rata
basis, based upon the principal amount (or accreted value, as applicable)
thereof surrendered in such Asset Sale Offer. Upon completion of such offer to
purchase, the amount of Excess Proceeds shall be reset at zero. The Company
shall obtain from the indenture trustee, representative or agent under the
documentation governing any Pari Passu Debt the amount of Pari Passu Debt that
has been tendered in connection with any Asset Sale Offer and provide such
information in an Officers' Certificate delivered to the Trustee.
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Section 4.11. Transactions With Affiliates.
----------------------------
ACC shall not, and shall not permit any of its Restricted Subsidiaries
to, sell, lease, transfer or otherwise dispose of any of its properties or
assets to, or purchase any property or assets from, or enter into, amend or make
any contract, agreement, understanding, loan, advance or guarantee with, or for
the benefit of, any Affiliate (each of the foregoing, an "Affiliate
Transaction"), unless (i) such Affiliate Transaction is on terms that are no
less favorable to ACC or the relevant Restricted Subsidiary than those that
would be obtained in a comparable transaction with an unrelated Person and (ii)
ACC delivers to the Trustee (a) with respect to any Affiliate Transaction or
series of related Affiliate Transactions involving aggregate consideration in
excess of $1.0 million, a resolution of ACC's Board of Directors set forth in an
Officers' Certificate certifying that such Affiliate Transaction complies with
clause (i) above and that such Affiliate Transaction has been approved by a
majority of the members of ACC's Board of Directors and (b) with respect to any
Affiliate Transaction or series of related Affiliate Transactions involving
aggregate consideration in excess of $5.0 million, an opinion as to the fairness
to the Holders of such Affiliate Transaction from a financial point of view
issued by an investment banking firm of national standing. Notwithstanding the
foregoing, each of the following shall be deemed not to be an Affiliate
Transaction: (1) any transaction with an officer or director of ACC entered into
in the ordinary course of business (including compensation or employee benefit
arrangements with any officer or director of ACC), (2) any transaction entered
into by ACC or any of its Restricted Subsidiaries with another Restricted
Subsidiary of ACC, (3) transactions in existence on the date of this Indenture,
(4) payments made by ACC substantially in conformity with past practices to
reimburse Perpetual for any group insurance policies purchased by Perpetual to
the extent that the coverage of such policies includes ACC, its Restricted
Subsidiaries and their respective operations, (5) payments by ACC to Perpetual
in respect of tax liabilities pursuant to the terms of the Tax Sharing
Agreement, as amended to and in effect on the date of this Indenture or
thereafter amended to the extent such subsequent amendment is not
disadvantageous to ACC or its Subsidiaries, and (6) Restricted Payments
permitted by Section 4.07 hereof and any Permitted Investment.
Section 4.12. Liens Securing Subordinated Debt.
--------------------------------
ACC shall not, and shall not permit any of its Restricted Subsidiaries
to, directly or indirectly create, incur, assume or suffer to exist any Lien
securing Debt that is pari passu with or subordinated in right of payment on the
Notes (other than Permitted Liens) upon any of its property or assets (including
intercompany notes), now owned or acquired after the date of this Indenture, or
any income or profits therefrom, except if the Notes are directly secured
equally and ratably with (or prior to, in the case of Liens with respect to Debt
that is subordinated in right of payment to the Notes) the obligation or
liability secured by such Lien.
Section 4.13. Other Subordinated Debt.
-----------------------
ACC shall not incur or permit to remain outstanding any Debt that is
subordinated or junior in right of payment to any Senior Debt and senior in any
respect in right of payment to the Notes.
Section 4.14. Corporate Existence.
-------------------
Subject to Article 5 hereof, ACC shall do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence, and the corporate, partnership or other existence of each Restricted
Subsidiary, in accordance with the respective organizational documents (as the
same may be amended from time to time) of ACC or each Restricted Subsidiary and
the rights (charter and statutory), licenses and franchises of ACC and each
Restricted Subsidiary; provided, however, that ACC shall not be required to
preserve any such right, license or franchise, or the corporate, partnership or
other existence of any of its Restricted Subsidiaries, if ACC's Board of
Directors shall determine that the preservation thereof is no longer desirable
in the
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conduct of the business of ACC and its Restricted Subsidiaries, taken as a
whole, and that the loss thereof is not adverse in any material respect to the
Holders.
Section 4.15. Change of Control.
-----------------
(a) In the event of a Change of Control, unless irrevocable notice of
redemption for all of the Notes is given within 30 days after the occurrence of
such Change of Control in accordance with the provisions of Article Three, ACC
shall commence an offer (a "Change of Control Offer") to each Holder to
repurchase all or any part (equal to $1,000 or an integral multiple thereof) of
each Holder's Notes at a purchase price equal to 101% of the principal amount
thereof, plus accrued and unpaid interest thereon, if any, to the date of
purchase (the "Change of Control Payment"). On the last Business Day of the
fiscal quarter of ACC next following the occurrence of a Change of Control, ACC
shall mail a notice to each Holder at such Holder's last registered address with
a copy to the Trustee and the Paying Agent stating: (1) that the Change of
Control Offer is being made pursuant to this Section 4.15 and that all Notes
tendered will be accepted for payment; (2) the purchase price and the purchase
date (the "Change of Control Payment Date"); (3) that any Note not tendered will
continue to accrue interest; (4) that, unless ACC defaults in the payment of the
Change of Control Payment, all Notes accepted for payment pursuant to the Change
of Control Offer shall cease to accrue interest after the Change of Control
Payment Date; (5) that Holders electing to have any Notes purchased pursuant to
a Change of Control Offer will be required to surrender the Notes, with the form
titled "Option of Holder to Elect Purchase" on the reverse of the Notes
completed, to the Paying Agent at the address specified in the notice prior to
the close of business on the third Business Day preceding the Change of Control
Payment Date; (6) that Holders will be entitled to withdraw their election if
the Paying Agent receives, not later than the close of business on the third
Business Day preceding the Change of Control Payment Date, a telegram, telex,
facsimile transmission or letter setting forth the name of the Holder, the
principal amount of Notes delivered for purchase, and a statement that such
Holder is withdrawing his election to have the Notes purchased; and (7) that
Holders whose Notes are being purchased only in part will be issued new Notes
equal in principal amount to the unpurchased portion of the Notes surrendered,
which unpurchased portion must be equal to $1,000 in principal amount or an
integral multiple thereof. ACC shall comply with the requirements of Rule 14e-1
under the Exchange Act and any other securities laws and regulations thereunder
to the extent such laws and regulations are applicable in connection with the
repurchase of Notes in connection with a Change of Control.
(b) On the Change of Control Payment Date, ACC shall, to the extent
lawful, (1) accept for payment all Notes or portions thereof properly tendered
pursuant to the Change of Control Offer, (2) deposit with the Paying Agent an
amount equal to the Change of Control Payment in respect of all Notes or
portions thereof so tendered and (3) deliver or cause to be delivered to the
Trustee the Notes so accepted together with an Officers' Certificate stating the
aggregate principal amount of Notes or portions thereof being purchased by ACC.
The Paying Agent shall promptly mail to each Holder of Notes so tendered payment
in an amount equal to the purchase price for the Notes, and the Trustee shall
promptly authenticate and mail (or cause to be transferred by book-entry) to
each Holder a new Note equal in principal amount to any unpurchased portion of
the Notes surrendered by such Holder, if any; provided that each such new Note
shall be in a principal amount of $1,000 or an integral multiple thereof. ACC
shall publicly announce the results of the Change of Control Offer on or as soon
as practicable after the Change of Control Payment Date.
(c) Prior to the commencement of a Change of Control Offer pursuant to
this Section 4.15, but in any event within 90 days after the occurrence of a
Change of Control, ACC shall (a) to the extent then required to be repaid, repay
in full all outstanding Senior Debt or (b) obtain the requisite consents, if
any, under agreements governing all such Senior Debt to permit the redemption of
Notes as provided for in this Section 4.15. ACC shall first comply with the
requirements of the preceding sentence before it shall be required to repurchase
Notes pursuant to this Section 4.15.
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ARTICLE 5
SUCCESSORS
Section 5.01. Merger, Consolidation or Sale of Assets.
---------------------------------------
ACC shall not consolidate or merge with or into any other Person
(whether or not ACC is the surviving corporation) or sell, assign, transfer,
lease, convey or otherwise dispose of all or substantially all of its properties
or assets (determined on a consolidated basis for ACC and its Restricted
Subsidiaries) in one or more related transactions, to another corporation,
Person or entity (other than the merger of a Wholly Owned Restricted Subsidiary
of ACC into another Wholly Owned Restricted Subsidiary of ACC or into ACC)
unless (i) ACC is the surviving corporation or the entity or the Person formed
by or surviving any such consolidation or merger (if other than ACC) or to which
such sale, assignment, transfer, lease, conveyance or other disposition shall
have been made is a corporation, limited liability company or other entity
organized or existing under the laws of the United States, any state thereof or
the District of Columbia, (ii) the entity or Person formed by or surviving any
such consolidation or merger (if other than ACC) or the entity or Person to
which such sale, assignment, transfer, lease, conveyance or other disposition
shall have been made assumes all of the obligations of ACC under the Notes and
this Indenture pursuant to a supplemental indenture, in each case in a form
reasonably satisfactory to the Trustee and under the Registration Rights
Agreement, (iii) immediately after such transaction, no Default or Event of
Default shall have occurred and be continuing and (iv) ACC or the entity or
Person formed by or surviving any such consolidation or merger (if other than
ACC), or to which such sale, assignment, transfer, lease, conveyance or other
disposition shall have been made (A) shall have Consolidated Net Worth
immediately after the transaction equal to or greater than the Consolidated Net
Worth of ACC immediately preceding the transaction and (B) shall, at the time of
such transaction and after giving pro forma effect thereto, be permitted to
incur at least $1.00 of additional Debt (other than Permitted Debt) pursuant to
Section 4.09 hereof.
Section 5.02. Successor Corporation Substituted.
---------------------------------
Upon any consolidation or merger, or any sale, assignment, transfer,
lease, conveyance or other disposition of all or substantially all of the assets
of ACC in accordance with Section 5.01 hereof, the successor corporation,
limited liability company or other entity formed by such consolidation or into
or with which ACC is merged or to which such sale, assignment, transfer, lease,
conveyance or other disposition is made shall succeed to, and be substituted for
(so that from and after the date of such consolidation, merger, sale, lease,
conveyance or other disposition, the provisions of this Indenture referring to
"ACC" or the "Company" shall refer instead to the successor corporation, limited
liability company or other entity, and not to ACC), and may exercise every right
and power of ACC under this Indenture with the same effect as if such successor
Person had been named as ACC herein; provided, however, that the predecessor
Company shall not be relieved from the obligation to pay the principal of and
interest on the Notes, except in the case of a sale of all of ACC's assets that
meets the requirements of Section 5.01 hereof.
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01. Events of Default.
-----------------
An "Event of Default" occurs if:
(a) ACC defaults in the payment of interest on any Note when
the same becomes due and payable (including any additional interest
required to be paid pursuant to the provisions of the Registration
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Rights Agreement) and the Default continues for a period of 30 days,
whether or not such payment is prohibited by the provisions of Article
10 hereof;
(b) ACC defaults in the payment of the principal of or
premium, if any, on any Note when and as the same becomes due and
payable at maturity, upon acceleration, optional or mandatory
redemption, required repurchase or otherwise, whether or not such
payment is prohibited by the provisions of Article 10 hereof;
(c) ACC fails to observe or perform any covenant, condition or
agreement on the part of ACC to be observed or performed pursuant to
Sections 4.07, 4.09 and 5.01 hereof and the Default continues for the
period and after the notice specified below;
(d) ACC fails to comply with any of its other agreements or
covenants in, or provisions of, the Notes or this Indenture and the
Default continues for the period and after the notice specified below;
(e) an event of default occurs under any mortgage, indenture
or other instrument under which there may be issued or by which there
may be secured or evidenced any Debt for money borrowed by ACC or any
of its Restricted Subsidiaries (or the payment of which is guaranteed
by ACC or any of its Restricted Subsidiaries), other than the Notes,
whether such Debt or Guarantee now exists or shall be created
hereafter, if (a) such event of default results from the failure to pay
at maturity $5.0 million or more in principal amount of such Debt or
(b) as a result of such event of default the maturity of $5.0 million
or more in principal amount of such Debt has been accelerated prior to
its stated maturity;
(f) a final judgment or judgments for the payment of money are
entered by a court or courts of competent jurisdiction against ACC or
any of its Restricted Subsidiaries and such judgment or judgments
remain undischarged for a period (during which execution shall not be
effectively stayed) of 60 days; provided that the aggregate of all such
undischarged judgments exceeds $5.0 million;
(g) ACC or any of its Restricted Subsidiaries pursuant to or
within the meaning of any Bankruptcy Law:
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief
against it in an involuntary case,
(iii) consents to the appointment of a Custodian of it
or for all or substantially all of its property,
(iv) makes a general assignment for the benefit of its
creditors, or
(v) generally is not paying its debts as they become
due;
(h) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(i) is for relief against ACC or any Restricted
Subsidiary in an involuntary case,
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(ii) appoints a Custodian of ACC or any Restricted
Subsidiary or for all or substantially all of the property of
ACC or any Restricted Subsidiary, or
(iii) orders the liquidation of ACC or any Restricted
Subsidiary;
and the order or decree remains unstayed and in effect for 60
consecutive days; or
(i) ACC shall fail to redeem or purchase the 9 3/4% Debentures
within 60 days of the Issuance Date.
An Event of Default shall not be deemed to have occurred under clause
(e) or (f) until the Trustee shall have received written notice from ACC or any
of the Holders or unless a Responsible Officer shall have knowledge of such
Event of Default. A Default under clause (c) is not an Event of Default until
the Trustee notifies ACC in writing, or the Holders of at least 25% in principal
amount of the then outstanding Notes notify ACC and the Trustee in writing, of
the Default and ACC does not cure the Default within 30 days after receipt of
such notice. A Default under clause (d) is not an Event of Default until the
Trustee notifies ACC in writing, or the Holders of at least 25% in principal
amount of the then outstanding Notes notify ACC and the Trustee in writing, of
the Default and ACC does not cure the Default within 60 days after receipt of
such notice. Such written notice must specify the Default, demand that it be
remedied and state that the notice is a "Notice of Default."
The term "Custodian" means receiver, trustee, assignee, liquidator or
similar officer under any Bankruptcy Law.
Section 6.02. Acceleration.
------------
If an Event of Default (other than an Event of Default specified in
clauses (g) and (h) of Section 6.01 hereof) occurs and is continuing, the
Trustee by notice to ACC or the Holders of at least 25% in aggregate principal
amount of the then outstanding Notes by written notice to ACC and the Trustee
may declare (a "Declaration") all of the Notes, including all unpaid principal
of, premium, if any, and any accrued and unpaid interest thereon, if any (the
"Default Amount"), to be due and payable immediately. Upon any such Declaration,
the Default Amount shall become due and payable immediately. Notwithstanding the
foregoing, if an Event of Default specified in clause (g) or (h) of Section 6.01
hereof occurs with respect to ACC or any of its Restricted Subsidiaries, all
outstanding Notes shall be due and payable immediately without further action or
notice. The Holders of not less than a majority in aggregate principal amount of
the then outstanding Notes by written notice to the Trustee may on behalf of all
of the Holders rescind an acceleration and its consequences if the rescission
would not conflict with any judgment or decree and if all existing Events of
Default (except nonpayment of principal, interest or premium that has become due
solely because of the acceleration) have been cured or waived.
If an Event of Default occurs on or after December 15, 2007 by reason
of any willful action (or inaction) taken (or not taken) by or on behalf of ACC
with the intention of avoiding payment of the premium that ACC would have had to
pay if ACC then had elected to redeem the Notes pursuant to Section 3.07 hereof,
then, upon acceleration of the Notes, an equivalent premium shall also become
and be immediately due and payable, to the extent permitted by law, anything in
this Indenture or in the Notes to the contrary notwithstanding. If an Event of
Default occurs prior to December 15, 2007 by reason of any willful action (or
inaction) taken (or not taken) by or on behalf of ACC with the intention of
avoiding the prohibition on redemption of the Notes prior to such date, then,
upon acceleration of the Notes, a premium shall also become and be immediately
due and payable in an amount, for each of the years beginning on December 15 of
the years set forth below, as set forth below:
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Year Percentage
---- ----------
2002................................. 110.333%
2003................................. 109.042%
2004................................. 107.750%
2005................................. 106.458%
2006................................. 105.167%
The Trustee shall not be deemed to have knowledge that such additional premium
has become and is immediately due and payable unless it has received written
notice thereof from the Holders of at least 25% in aggregate principal amount of
the then outstanding Notes.
Section 6.03. Other Remedies.
--------------
If an Event of Default occurs and is continuing, the Trustee may pursue
any available remedy to collect the payment of principal of, premium, if any,
and interest on the Notes or to enforce the performance of any provision of the
Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder of a Note in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. All remedies are
cumulative to the extent permitted by law.
Section 6.04. Waiver of Past Defaults.
-----------------------
Holders of not less than a majority in aggregate principal amount of
the then outstanding Notes by notice to the Trustee may on behalf of the Holders
of all of the Notes waive an existing Default or Event of Default and its
consequences hereunder, except a continuing Default or Event of Default in the
payment of the principal of, premium, if any, or interest on, any Note
(including in connection with an offer to purchase); provided, however, that the
Holders of a majority in aggregate principal amount of the then outstanding
Notes may rescind an acceleration and its consequences, including any related
payment default that resulted from such acceleration in accordance with Section
6.02 hereof. 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 6.05. Control by Majority.
-------------------
Holders of a majority in principal amount of the then outstanding Notes
may direct the time, method and place of conducting any proceeding for
exercising any remedy available to the Trustee or exercising any trust or power
conferred on it. However, the Trustee may refuse to follow any direction that
conflicts with law or this Indenture or that the Trustee determines may be
unduly prejudicial to the rights of other Holders of Notes or that may involve
the Trustee in personal liability.
Section 6.06. Limitation on Suits.
-------------------
A Holder of a Note may pursue a remedy with respect to this Indenture
or the Notes only if:
(a) the Holder of a Note gives to the Trustee written notice
of a continuing Event of Default;
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(b) the Holders of at least 25% in principal amount of the
then outstanding Notes make a written request to the Trustee to pursue
the remedy;
(c) such Holder of a Note or Holders of Notes offer and, if
requested, provide to the Trustee indemnity satisfactory to the Trustee
against any loss, liability or expense;
(d) the Trustee does not comply with the request within 60
days after receipt of the request and the offer and, if requested, the
provision of indemnity; and
(e) during such 60-day period the Holders of a majority in
principal amount of the then outstanding Notes do not give the Trustee
a direction inconsistent with the request.
A Holder of a Note may not use this Indenture to prejudice the rights of another
Holder of a Note or to obtain a preference or priority over another Holder of a
Note.
Section 6.07. Rights of Holders of Notes To Receive Payment.
---------------------------------------------
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Note to receive payment of principal of and premium, if any, and
interest on the Note, on or after the respective due dates expressed in the Note
(including in connection with an offer to purchase), or to bring suit for the
enforcement of any such payment on or after such respective dates, shall not be
impaired or affected without the consent of such Holder.
Section 6.08. Collection Suit by Trustee.
--------------------------
If an Event of Default specified in Section 6.01(a) or (b) occurs and
is continuing, the Trustee is authorized to recover judgment in its own name and
as trustee of an express trust against ACC for the whole amount of principal of,
premium, if any, and interest remaining unpaid on the Notes and interest on
overdue principal and, to the extent lawful, interest and 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.
Section 6.09. Trustee May File Proofs of Claim.
--------------------------------
The Trustee is authorized to file such proofs of claim and other papers
or documents 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 the
Holders of the Notes allowed in any judicial proceedings relative to ACC (or any
other obligor upon the Notes), its creditors or its property and shall be
entitled and empowered to collect, receive and distribute any money or other
property payable or deliverable on any such claims and any custodian 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 to
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 hereof. To the extent that the payment of any such compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, and
any other amounts due the Trustee under Section 7.07 hereof out of the estate in
any such proceeding, shall be denied for any reason, payment of the same shall
be secured by a Lien on, and shall be paid out of, any and all distributions,
dividends, money, securities and other properties that the Holders may be
entitled to receive in such proceeding whether in liquidation or under any plan
of reorganization or arrangement or otherwise. 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
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reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder, or to authorize the Trustee to vote in respect of the
claim of any Holder in any such proceeding.
Section 6.10. Priorities.
----------
If the Trustee collects any money pursuant to this Article, it shall
pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts
due under Section 7.07 hereof, including payment of all compensation,
expense and liabilities incurred, and all advances made, by the Trustee
and the costs and expenses of collection;
Second: to Holders for amounts due and unpaid on the Notes for
principal, premium, if any, and interest, ratably, without preference
or priority of any kind, according to the amounts due and payable on
the Notes for principal, premium, if any, and interest, respectively;
and
Third: to ACC or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment to
Holders of Notes pursuant to this Section 6.10.
Section 6.11. Undertaking for Costs.
---------------------
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 or omitted by
it as a Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section does not apply to a suit by the Trustee, a suit by a Holder of a
Note pursuant to Section 6.07 hereof, or a suit by Holders of more than 10% in
principal amount of the then outstanding Notes.
ARTICLE 7
TRUSTEE
Section 7.01. Duties of Trustee.
-----------------
(a) If 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 its exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
(i) the duties of the Trustee shall be determined solely by
the express provisions of this Indenture and the Trustee need perform
only those duties that are specifically set forth in this Indenture and
no others, and no implied covenants or obligations shall be read into
this Indenture against the Trustee; and
(ii) 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
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opinions furnished to the Trustee and conforming to the requirements of
this Indenture. However, the Trustee shall examine the certificates and
opinions to determine whether or not they conform to the requirements
of this Indenture.
(c) The Trustee may not be relieved from liabilities for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of paragraph (b)
of this Section;
(ii) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it is proved that
the Trustee was negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05 hereof.
(d) Whether or not therein expressly so provided, every provision of
this Indenture that in any way relates to the Trustee is subject to paragraphs
(a), (b) and (c) of this Section.
(e) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or incur any liability. The Trustee shall be under no
obligation to exercise any of its rights and powers under this Indenture at the
request of any Holders, unless such Holder shall have offered to the Trustee
security and indemnity satisfactory to it against any loss, liability or
expense.
(f) The Trustee shall not be liable for interest on any money received
by it except as the Trustee may agree in writing with ACC. Money held in trust
by the Trustee need not be segregated from other funds except to the extent
required by law.
Section 7.02. Rights of Trustee.
-----------------
(a) The Trustee may conclusively rely upon any document believed by it
to be genuine and to have been signed or presented by the proper Person. The
Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel or both. The Trustee shall not be
liable for any action it takes or omits to take in good faith in reliance on
such Officers' Certificate or Opinion of Counsel. The Trustee may consult with
counsel and the written advice of such counsel or any Opinion of Counsel shall
be full and complete authorization and protection from liability in respect of
any action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon.
(c) The Trustee may act through its attorneys and agents and shall not
be responsible for the misconduct or negligence of any agent appointed with due
care.
(d) The Trustee shall not be liable for any action it takes or omits to
take in good faith that it believes to be authorized or within the rights or
powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any
demand, request, direction or notice from ACC shall be sufficient if signed by
an Officer of ACC.
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(f) 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 unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
that might be incurred by it in compliance with such request or direction.
Section 7.03. Individual Rights of Trustee.
----------------------------
The Trustee in its individual or any other capacity may become the
owner or pledgee of Notes and may otherwise deal with ACC or any Affiliate of
ACC with the same rights it would have if it were not Trustee. Any Agent may do
the same with like rights and duties. However, the Trustee is subject to
Sections 7.10 and 7.11 hereof.
Section 7.04. Trustee's Disclaimer.
--------------------
The Trustee shall not be responsible for and makes no representation as
to the validity or adequacy of this Indenture or the Notes, it shall not be
accountable for ACC's use of the proceeds from the Notes or any money paid to
ACC or upon ACC's direction under any provision hereof, it shall not be
responsible for the use or application of any money received by any Paying Agent
other than the Trustee, and it shall not be responsible for any statement or
recital herein or any statement in the Notes or any other document in connection
with the sale of the Notes or pursuant to this Indenture other than its
certificate of authentication.
Section 7.05. Notice of Default.
-----------------
If a Default or Event of Default occurs and is continuing and if it is
known to the Trustee, the Trustee shall mail to the Holders of the Notes a
notice of the Default or Event of Default within 90 days after it occurs. Except
in the case of a Default or Event of Default in payment of principal of,
premium, if any, or interest on any Note, the Trustee may withhold the notice if
and so long as a committee of its Responsible Officers in good faith determines
that withholding the notice is in the interests of the Holders of the Notes.
Section 7.06. Reports by Trustee to Holders of the Notes.
------------------------------------------
Within 60 days after each May 15 beginning with May 15 following the
date of this Indenture, and for so long as Notes remain outstanding, the Trustee
shall mail to the Holders of the Notes a brief report dated as of such reporting
date that complies with TIA ss. 313(a) (but if no event described in TIA ss.
313(a) has occurred within the twelve months preceding the reporting date, no
report need be transmitted). The Trustee also shall comply with TIA ss.
313(b)(2). The Trustee shall also transmit by mail all reports as required by
TIA ss. 313(c).
A copy of each report at the time of its mailing to the Holders of
Notes shall be mailed to ACC and filed with the SEC and each stock exchange on
which the Notes are listed in accordance with TIA ss. 313(d). ACC shall promptly
notify the Trustee when the Notes are listed on any stock exchange.
Section 7.07. Compensation and Indemnity.
--------------------------
ACC shall pay to the Trustee from time to time reasonable compensation
for its acceptance of this Indenture and services hereunder. To the extent
permitted by law, the Trustee's compensation shall not be limited by any law on
compensation of a trustee of an express trust. ACC shall reimburse the Trustee
promptly upon request for all reasonable disbursements, advances and expenses
incurred or made by it in addition to the compensation for its services. Such
expenses shall include the reasonable compensation, disbursements and expenses
of the Trustee's agents and counsel.
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ACC shall indemnify the Trustee against any and all losses, liabilities
or expenses incurred by it arising out of or in connection with the acceptance
or administration of its duties under this Indenture, including the costs and
expenses of enforcing this Indenture against ACC (including this Section 7.07)
and defending itself against any claim (whether asserted by ACC or any Holder or
any other person) or liability in connection with the exercise or performance of
any of its powers or duties hereunder, except to the extent any such loss,
liability or expense may be attributable to its negligence or bad faith. The
Trustee shall notify ACC promptly of any claim for which it may seek indemnity.
Failure by the Trustee to so notify ACC shall not relieve ACC of its obligations
hereunder. ACC shall defend the claim and the Trustee shall cooperate in the
defense. The Trustee may have separate counsel and ACC shall pay the reasonable
fees and expenses of such counsel. ACC need not pay for any settlement made
without its consent, which consent shall not be unreasonably withheld.
The obligations of ACC under this Section 7.07 shall survive the
satisfaction and discharge of this Indenture.
To secure ACC's payment obligations in this Section, the Trustee shall
have a Lien prior to the Notes on all money or property held or collected by the
Trustee, except that held in trust to pay principal and interest on particular
Notes. Such Lien shall survive the satisfaction and discharge of this Indenture.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(g) or (h) hereof occurs, the expenses and the
compensation for the services (including the fees and expenses of its agents and
counsel) are intended to constitute expenses of administration under any
Bankruptcy Law.
The Trustee shall comply with the provisions of TIA ss. 313(b)(2) to
the extent applicable.
Section 7.08. Replacement of Trustee.
----------------------
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section.
The Trustee may resign in writing at any time and be discharged from
the trust hereby created by so notifying ACC. The Holders of Notes of a majority
in principal amount of the then outstanding Notes may remove the Trustee by so
notifying the Trustee and ACC in writing. ACC may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10 hereof;
(b) the Trustee is adjudged a bankrupt or an insolvent or an
order for relief is entered with respect to the Trustee under any
Bankruptcy Law;
(c) a Custodian or public officer takes charge of the Trustee
or its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, ACC shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in principal amount of the then outstanding Notes may appoint a
successor Trustee to replace the successor Trustee appointed by ACC.
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If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, ACC, or the
Holders of at least 10% in principal amount of the then outstanding Notes may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
If the Trustee, after written request by any Holder who has been a
Holder of a Note for at least six months fails to comply with Section 7.10, such
Holder may petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to ACC. Thereupon, the resignation or
removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture. The successor Trustee shall mail a notice of its succession to the
Holders of the Notes. The retiring Trustee shall promptly transfer all property
held by it as Trustee to the successor Trustee; provided that all sums owing to
the Trustee hereunder have been paid and subject to the Lien provided for in
Section 7.07 hereof. Notwithstanding replacement of the Trustee pursuant to this
Section 7.08, ACC's obligations under Section 7.07 hereof shall continue for the
benefit of the retiring Trustee.
Section 7.09. Successor Trustee by Merger, Etc.
--------------------------------
If the Trustee consolidates, merges or converts into, or transfers all
or substantially all of its corporate trust business to, another corporation,
the successor corporation without any further act shall be the successor
Trustee.
Section 7.10. Eligibility, Disqualification.
-----------------------------
There shall at all times be a Trustee hereunder that is a corporation
organized and doing business under the laws of the United States of America or
of any state thereof that is authorized under such laws to exercise corporate
trustee power, that is subject to supervision or examination by federal or state
authorities and that has a combined capital and surplus of at least $50.0
million as set forth in its most recent published annual report of condition.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA ss.ss. 310(a)(1), (2) and (5). The Trustee is subject to TIA
ss. 310(b).
Section 7.11. Preferential Collection of Claims Against the Company.
-----------------------------------------------------
The Trustee is subject to TIA ss. 31l(a), excluding any creditor
relationship listed in TIA ss. 311(b). A Trustee who has resigned or been
removed shall be subject to TIA ss. 311(a) to the extent indicated therein.
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01. Option To Effect Legal Defeasance or Covenant Defeasance.
--------------------------------------------------------
ACC may, at the option of its Board of Directors evidenced by a
resolution set forth in an Officers' Certificate, at any time, elect to have
either Section 8.02 or 8.03 hereof be applied to all outstanding Notes upon
compliance with the conditions set forth below in this Article Eight.
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Section 8.02. Legal Defeasance and Discharge.
------------------------------
Upon ACC's exercise under Section 8.01 hereof of the option applicable
to this Section 8.02, ACC shall, subject to the satisfaction of the conditions
set forth in Section 8.04 hereof, be deemed to have been discharged from its
obligations with respect to all outstanding Notes on the date the conditions set
forth below are satisfied (hereinafter, "Legal Defeasance"). For this purpose,
Legal Defeasance means that ACC shall be deemed to have paid and discharged the
entire Indebtedness represented by the outstanding Notes, which shall thereafter
be deemed to be "outstanding" only for the purposes of Section 8.05 hereof and
the other Sections of this Indenture referred to in (a) and (b) below, and to
have satisfied all its other obligations under such Notes and this Indenture
(and the Trustee, on demand of and at the expense of ACC, shall execute proper
instruments acknowledging the same), except for the following provisions which
shall survive until otherwise terminated or discharged hereunder: (a) the rights
of Holders of outstanding Notes to receive solely from the trust fund described
in Section 8.04 hereof, and as more fully set forth in such Section, payments in
respect of the principal of, premium, if any, and interest on such Notes when
such payments are due, (b) ACC's obligations with respect to such Notes under
Article 2 and Section 4.02 hereof, (c) the rights, powers, trusts, duties and
immunities of the Trustee hereunder and ACC's obligations in connection
therewith and (d) this Article Eight. Subject to compliance with this Article
Eight, ACC may exercise its option under this Section 8.02 notwithstanding the
prior exercise of its option under Section 8.03 hereof.
Section 8.03. Covenant Defeasance.
-------------------
Upon ACC's exercise under Section 8.01 hereof of the option applicable
to this Section 8.03, ACC shall, subject to the satisfaction of the conditions
set forth in Section 8.04 hereof, be released from its obligations under the
covenants contained in Sections 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13 and
4.15 hereof with respect to the outstanding Notes on and after the date the
conditions set forth below are satisfied (hereinafter, "Covenant Defeasance"),
and the Notes shall thereafter be deemed not "outstanding" for the purposes of
any direction, waiver, consent or declaration or act of Holders (and the
consequences of any thereof) in connection with such covenants, but shall
continue to be deemed "outstanding" for all other purposes hereunder (it being
understood that such Notes shall not be deemed outstanding for accounting
purposes). For this purpose, Covenant Defeasance means that, with respect to the
outstanding Notes, ACC may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such covenant,
whether directly or indirectly, by reason of any reference elsewhere herein to
any such covenant or by reason of any reference in any such covenant to any
other provision herein or in any other document and such omission to comply
shall not constitute a Default or an Event of Default under Section 6.01 hereof,
but, except as specified above, the remainder of this Indenture and such Notes
shall be unaffected thereby. In addition, upon ACC's exercise under Section 8.01
hereof of the option applicable to this Section 8.03 hereof, subject to the
satisfaction of the conditions set forth in Section 8.04 hereof, Sections
6.01(c) through 6.01(f) hereof shall not constitute Events of Default.
Section 8.04. Conditions to Legal or Covenant Defeasance.
------------------------------------------
The following shall be the conditions to the application of either
Section 8.02 or 8.03 hereof to the outstanding Notes:
In order to exercise either Legal Defeasance or Covenant Defeasance:
(a) ACC must irrevocably deposit with the Trustee, in trust,
for the benefit of the Holders, cash in United States dollars,
non-callable Government Securities, or a combination thereof, in such
amounts as will be sufficient, in the opinion of a nationally
recognized firm of independent public accountants, to pay the principal
of and premium, if any, and interest on the outstanding Notes on the
stated date for payment thereof or on the applicable redemption date,
as the case may be;
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(b) in the case of an election under Section 8.02 hereof, ACC
shall have delivered to the Trustee an Opinion of Counsel in the United
States reasonably acceptable to the Trustee confirming that (A) ACC has
received from, or there has been published by, the Internal Revenue
Service a ruling or (B) since the date of this Indenture, there has
been a change in the applicable federal income tax law, in either case
to the effect that, and based thereon such Opinion of Counsel shall
confirm that, the Holders of the outstanding Notes will not recognize
income, gain or loss for federal income tax purposes as a result of
such Legal Defeasance and will be subject to federal income tax on the
same amounts, in the same manner and at the same times as would have
been the case if such Legal Defeasance had not occurred;
(c) in the case of an election under Section 8.03 hereof, ACC
shall have delivered to the Trustee an Opinion of Counsel in the United
States reasonably acceptable to the Trustee confirming that the Holders
of the outstanding Notes will not recognize income, gain or loss for
federal income tax purposes as a result of such Covenant Defeasance and
will be subject to federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such
Covenant Defeasance had not occurred;
(d) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit (other than a Default or Event
of Default resulting from the incurrence of Indebtedness all or a
portion of the proceeds of which will be used to defease the Notes
pursuant to this Article Eight concurrently with such incurrence) or
insofar as Sections 6.01(g) or 6.01(h) hereof is concerned, at any time
in the period ending on the 91st day after the date of deposit, all as
certified by ACC in an Officers' Certificate delivered to the Trustee;
(e) such Legal Defeasance or Covenant Defeasance shall not
result in a breach or violation of, or constitute a default under, any
material agreement or instrument (other than this Indenture) to which
ACC or any of its Restricted Subsidiaries is a party or by which ACC or
any of its Restricted Subsidiaries is bound, all as certified by ACC in
an Officers' Certificate delivered to the Trustee;
(f) ACC shall have delivered to the Trustee an Opinion of
Counsel to the effect that after the 91st day following the deposit,
the trust funds will not be subject to the effect of any applicable
bankruptcy, insolvency, reorganization or similar laws affecting
creditors' rights generally;
(g) ACC shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by ACC with the
intent of preferring the Holders over any other creditors of ACC or
with the intent of defeating, hindering, delaying or defrauding any
other creditors of ACC;
(h) ACC shall have delivered to the Trustee an Opinion of
Counsel to the effect that the trust funds will not be subject to the
subordination provisions of the Indenture; and
(i) ACC shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for or relating to the Legal Defeasance or the
Covenant Defeasance have been complied with.
Section 8.05. Deposited Money and Government Securities To Be Held in Trust;
Other Miscellaneous Provisions.
--------------------------------------------------------------
Subject to Section 8.06 hereof, all money and non-callable Government
securities (including the proceeds thereof) deposited with the Trustee (or other
qualifying trustee, collectively for purposes of this Section 8.05, the
"Trustee") pursuant to Section 8.04 hereof in respect of the outstanding Notes
shall be held in trust and
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applied by the Trustee, in accordance with the provisions of such Notes and this
Indenture, to the payment, either directly or through any Paying Agent
(including ACC acting as Paying Agent) as the Trustee may determine, to the
Holders of such Notes of all sums due and to become due thereon in respect of
principal, premium, if any, and interest, but such money need not be segregated
from other funds except to the extent required by law.
ACC shall pay and indemnify the Trustee against any tax, fee or other
charge imposed on or assessed against the cash or non-callable Government
Securities deposited pursuant to Section 8.04 hereof or the principal and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the outstanding Notes.
Anything in this Article Eight to the contrary notwithstanding, the
Trustee shall deliver or pay to ACC from time to time upon the request of ACC
any money or non-callable Government Securities held by it as provided in
Section 8.04 hereof which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee (which may be the opinion delivered under Section
8.04(a) hereof), are in excess of the amount thereof that would then be required
to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.
Section 8.06. Repayment to the Company.
------------------------
Any money deposited with the Trustee or any Paying Agent, or then held
by ACC, in trust for the payment of the principal of, premium, if any, or
interest on any Note and remaining unclaimed for two years after such principal,
and premium, if any, or interest has become due and payable shall be paid to ACC
on its request or (if then held by ACC) shall be discharged from such trust; and
the Holder of such Note shall thereafter, as a secured creditor, look only to
ACC for payment thereof, and all liability of the Trustee or such Paying Agent
with respect to such trust money, and all liability of ACC as trustee thereof,
shall thereupon cease; provided, however, that the Trustee or such Paying Agent,
before being required to make any such repayment, may at the expense of ACC
cause to be published once, in the New York Times and The Wall Street Journal
(national edition), 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 notification or publication, any unclaimed balance of such money then
remaining will be repaid to ACC.
Section 8.07. Reinstatement.
-------------
If the Trustee or Paying Agent is unable to apply any United States
dollars or non-callable Government Securities in accordance with Section 8.02,
8.03 or 8.04 hereof, as the case may be, by reason of any order or judgment of
any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, then ACC's obligations under this Indenture and
the Notes shall be revived and reinstated as though no deposit had occurred
pursuant to Section 8.02, 8.03 or 8.04 hereof until such time as the Trustee or
Paying Agent is permitted to apply all such money in accordance with Section
8.02, 8.03 or 8.04 hereof, as the case may be; provided, however, that, if ACC
makes any payment of principal of, premium, if any, or interest on any Note
following the reinstatement of its obligations, ACC shall be subrogated to the
rights of the Holders of such Notes to receive such payment from the money held
by the Trustee or Paying Agent.
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ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01. Without Consent of Holders.
--------------------------
Notwithstanding Section 9.02 of this Indenture, ACC and the Trustee may
amend or supplement this Indenture or the Notes without the consent of any
Holder:
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for the assumption of ACC's obligations to the
Holders of the Notes in the case of a merger or consolidation pursuant
to Article Five hereof;
(c) to provide for uncertificated Notes in addition to or in
place of certificated Notes;
(d) to make any change that would provide any additional
rights or benefits to the Holders the Notes or that does not adversely
affect the legal rights hereunder of any Holder of the Note; or
(e) to comply with requirements of the SEC in order to effect
or maintain the qualification of this Indenture under the TIA.
Upon the request of ACC accompanied by a resolution of its Board of
Directors authorizing the execution of any such amended or supplemental
Indenture, and upon receipt by the Trustee of the documents described in Section
9.06 hereof, the Trustee shall join with ACC in the execution of any amended or
supplemental Indenture authorized or permitted by the terms of this Indenture
and to make any further appropriate agreements and stipulations that may be
therein contained, but the Trustee shall not be obligated to enter into such
amended or supplemental Indenture that affects its own rights, duties or
immunities under this Indenture or otherwise.
Section 9.02. With Consent of Holders of Notes.
--------------------------------
Except as provided below in this Section 9.02, ACC and the Trustee may
amend or supplement this Indenture and the Notes may be amended or supplemented
with the consent of the Holders of at least a majority in principal amount of
the Notes then outstanding (including consents obtained in connection with a
purchase of or tender offer or exchange offer for the Notes), and, subject to
Sections 6.04 and 6.07 hereof, any existing Default or Event of Default (other
than a Default or Event of default in the payment of the principal of, premium,
if any, or interest on the Notes, except a payment default resulting from an
acceleration that has been rescinded) or compliance with any provision of this
Indenture or the Notes may be waived with the consent of the Holders of a
majority in principal amount of the then outstanding Notes (including consents
obtained in connection with a purchase of or a tender offer or exchange offer
for the Notes).
Upon the request of ACC accompanied by a resolution of its Board of
Directors authorizing the execution of any such amended or supplemental
Indenture, and upon the filing with the Trustee of evidence satisfactory to the
Trustee of the consent of the Holders as aforesaid, and upon receipt by the
Trustee of the documents described in Section 9.06 hereof, the Trustee shall
join with ACC in the execution of such amended or supplemental Indenture unless
such amended or supplemental Indenture affects the Trustee's own rights, duties
or immunities under this Indenture or otherwise, in which case the Trustee may
in its discretion, but shall not be obligated to, enter into such amended or
supplemental Indenture.
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It shall not be necessary for the consent of the Holders under this
Section 9.02 to approve the particular form of any proposed amendment or waiver,
but it shall be sufficient if such consent approves the substance thereof.
After an amendment, supplement or waiver under this Section becomes
effective, ACC shall mail to the Holders of each Note affected thereby a notice
briefly describing the amendment, supplement or waiver. Any failure of ACC to
mail such notice, or any defect therein, shall not, however, in any way impair
or affect the validity of any such amended or supplemental Indenture or waiver.
Subject to Sections 6.04 and 6.07 hereof, the Holders of a majority in aggregate
principal amount of the Notes then outstanding may waive compliance in a
particular instance by ACC with any provision of this Indenture or the Notes.
However, without the consent of each Holder affected, an amendment, supplement
or waiver may not (with respect to any Notes held by a nonconsenting Holder):
(a) reduce the principal amount of Notes whose Holders must
consent to an amendment, supplement or waiver;
(b) reduce the rate of or extend the time for payment of
interest, including default interest, on any Note;
(c) reduce the principal of or extend the fixed maturity of
any Note or alter or waive any of the provisions with respect to the
redemption of the Notes (including the purchase price specified for any
redemption of the Notes pursuant to Sections 4.10 and 4.15 hereof);
(d) make any Note payable in money other than that stated in
the Notes;
(e) make any change in the provisions of this Indenture
relating to waivers of past Defaults or the rights of Holders of Notes
to receive payments of principal of or interest on the Notes;
(f) make any change in Section 6.04 or 6.07 hereof or in the
foregoing amendment and waiver provisions;
(g) make any change in Article 11 hereof that adversely
affects the rights of any Holders; or
(h) waive a Default or Event of Default in the payment of
principal of or premium, if any, or interest on the Notes (except a
rescission of acceleration of the Notes by the Holders of at least a
majority in aggregate principal amount of the then outstanding Notes
and a waiver of the payment default that resulted from such
acceleration).
Section 9.03. Compliance with Trust Indenture Act.
-----------------------------------
Every amendment or supplement to this Indenture or the Notes shall be
set forth in an amended or supplemental Indenture that complies with the TIA as
then in effect.
Section 9.04. Revocation and Effect of Consents.
---------------------------------
Until an amendment, supplement or waiver becomes effective, a consent
to it by a Holder is a continuing consent by the Holder and every subsequent
Holder of a Note or portion of a Note that evidences the same debt as the
consenting Holder's Note, even if notation of the consent is not made on any
Note. However, any such Holder or subsequent Holder may revoke the consent as to
its Note if the Trustee receives written notice of
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revocation before the date the waiver, supplement or amendment becomes
effective. An amendment, supplement or waiver becomes effective in accordance
with its terms and thereafter binds every Holder.
ACC may fix a record date for determining which Holders must consent to
such amendment or waiver. If ACC fixes a record date, the record date shall be
fixed at (i) the later of 30 days prior to the first solicitation of such
consent or the date of the most recent list of Holders furnished to the Trustee
prior to such solicitation pursuant to Section 2.05 or (ii) such other date as
ACC shall lawfully designate.
Section 9.05. Notation on or Exchange of Notes.
--------------------------------
The Trustee may place an appropriate notation about an amendment,
supplement or waiver on any Note thereafter authenticated. ACC in exchange for
all Notes may issue and the Trustee shall authenticate new Notes that reflect
the amendment, supplement or waiver.
Failure to make the appropriate notation or issue a new Note shall not
affect the validity and effect of such amendment, supplement or waiver.
Section 9.06. Trustee To Sign Amendments, Etc.
-------------------------------
The Trustee shall sign any amended or supplemental Indenture authorized
pursuant to this Article 9 if the amendment or supplement does not adversely
affect the rights, duties, liabilities or immunities of the Trustee. ACC may not
sign an amendment or supplemental Indenture until the Board of Directors
approves it. In executing any amended or supplemental Indenture, the Trustee
shall be entitled to receive, and (subject to Section 7.01) shall be fully
protected in relying upon, an Officers' Certificate and an Opinion of Counsel
stating that the execution of such amended or supplemental Indenture is
authorized or permitted by this Indenture.
ARTICLE 10
SATISFACTION AND DISCHARGE
Section 10.01. Satisfaction and Discharge.
--------------------------
This Indenture will be discharged and will cease to be of further
effect (except as set forth below) and the Trustee, at the expense of ACC, shall
execute proper instruments acknowledging satisfaction and discharge of this
Indenture when:
(1) either:
(a) all the Notes theretofore authenticated and
delivered (except lost, stolen or destroyed Notes which have
been replaced or paid as provided in Section 2.07 and Notes
for whose payment money has theretofore been deposited in
trust or segregated and held in trust by ACC and thereafter
repaid to ACC or discharged from such trust) have been
delivered to the Trustee for cancellation; or
(b) all Notes not theretofore delivered to the
Trustee for cancellation have become due and payable and ACC
has irrevocably deposited or caused to be deposited with the
Trustee funds in an amount sufficient to pay and discharge the
entire Indebtedness on the Notes not theretofore delivered to
the Trustee for cancellation, for principal of, premium, if
any, and interest on the Notes to the date of deposit together
with irrevocable instructions from
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ACC directing the Trustee to apply such funds to the payment
thereof at maturity or redemption, as the case may be;
(2) ACC has paid all other sums payable under this Indenture
by ACC; and
(3) ACC has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel stating that all conditions precedent under
this Indenture relating to the satisfaction and discharge of this
Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, ACC's
obligations in Sections 2.03, 2.04, 2.06, 2.07, 2.11, 7.07, 7.08, 12.02, 12.03
and 12.04, and the Trustee's and Paying Agent's obligations in Section 10.02,
shall survive until the Notes are no longer outstanding. Thereafter, only ACC's
obligations in Section 7.07 shall survive.
Section 10.02. Application of Trust Money.
--------------------------
All money deposited with the Trustee pursuant to Section 10.01 shall be
held in trust and, at the written direction of ACC, be invested prior to
maturity in Government Securities, and applied by the Trustee in accordance with
the provisions of the Notes and this Indenture, to the payment, either directly
or through any Paying Agent as the Trustee may determine, to the Persons
entitled thereto, of the principal (and premium, if any) and interest for the
payment of which money has been deposited with the Trustee, but such money need
not be segregated from other funds except to the extent required by law.
ARTICLE 11
SUBORDINATION
Section 11.01. Agreement To Subordinate.
------------------------
ACC agrees, and each Holder by accepting a Note agrees, that the
Indebtedness evidenced by the Note is subordinated in right of payment, to the
extent and in the manner provided in this Article, to the prior payment in full
of all Senior Debt (whether outstanding on the date hereof or hereafter created,
incurred, assumed or guaranteed), and that the subordination is for the benefit
of the holders of Senior Debt.
Section 11.02. Certain Definitions.
-------------------
"Designated Senior Debt" means (i) so long as any Senior Bank Debt is
outstanding, the Senior Bank Debt and (ii) thereafter, any other Senior Debt
permitted hereunder, the principal amount of which is $25.0 million or more and
that has been designated by ACC as "Designated Senior Debt."
"Representative" means the indenture trustee or other trustee, agent or
representative for any Senior Debt.
"Senior Bank Debt" means the Debt now or hereafter outstanding under
the Senior Credit Facility, as such agreement may be restated, further amended,
supplemented or otherwise modified or replaced from time to time hereafter,
together with any refunding or replacement of such Debt, to the extent that any
such Debt was permitted by this Indenture to be incurred.
"Senior Debt" means (a) the Senior Bank Debt, (b) all additional Debt
that is permitted under this Indenture that is not by its terms pari passu with
or subordinated to the Notes, (c) all Obligations of ACC with
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respect to the foregoing clauses (a) and (b), including post-petition interest
and (d) all (including all subsequent) renewals, extensions, amendments,
refinancings, repurchases or redemptions, modifications, replacements or
refundings thereof (whether or not coincident therewith) that are permitted by
this Indenture. Notwithstanding anything to the contrary in the foregoing,
Senior Debt shall not include (i) any Debt of ACC to any of its Restricted
Subsidiaries, (ii) any Debt incurred for the purchase of goods or materials or
for services obtained in the ordinary course of business (other than with the
proceeds of borrowings from banks or other financial institutions), (iii) any
Debt incurred in violation of this Indenture or (iv) the 8.875% Notes and, until
the date of redemption or purchase thereof, the 9 3/4% Debentures, which shall
rank pari passu in right of payment with the Notes.
A distribution may consist of cash, securities or other property, by
set-off or otherwise.
Section 11.03. Liquidation; Dissolution; Bankruptcy.
------------------------------------
Upon any distribution to creditors of ACC in a liquidation or
dissolution of ACC or in a bankruptcy, reorganization, insolvency, receivership
or similar proceeding relating to ACC or its property, in an assignment for the
benefit of creditors or any marshalling of ACC's assets and liabilities:
(1) holders of Senior Debt shall be entitled to receive
irrevocable payment in full in cash or Cash Equivalents reasonably
satisfactory to such holders of all Obligations due in respect of such
Senior Debt (including interest after the commencement of any such
proceeding at the rate specified in the applicable Senior Debt,
regardless of whether such post-petition interest is allowed in such
proceeding) before Holders shall be entitled to receive any payment
with respect to the Notes (except that Holders may receive securities
that are subordinated to at least the same extent as the Notes to (a)
Senior Debt and (b) any securities issued in exchange for Senior Debt
that have a maturity no earlier than that of the Notes); and
(2) until all Obligations with respect to Senior Debt (as
provided in subsection (1) above) are irrevocably paid in full in cash
or Cash Equivalents reasonably satisfactory to such holders of Senior
Debt, any distribution to which Holders would be entitled but for this
Article shall be made to holders of Senior Debt (except that Holders
may receive securities that are subordinated to at least the same
extent as the Notes to (a) Senior Debt and (b) any securities issued in
exchange for Senior Debt that have a maturity no earlier than that of
the Notes), as their interests may appear.
Section 11.04. Default on Designated Senior Debt.
---------------------------------
ACC may not make any payment or distribution to the Trustee or any
Holder in respect of Obligations with respect to the Notes and may not acquire
from the Trustee or any Holder any Notes for cash or property (other than
securities that are subordinated to at least the same extent as the Notes to (a)
Senior Debt and (b) any securities issued in exchange for Senior Debt and that
have a maturity no earlier than that of the Notes) until all principal and other
Obligations with respect to the Senior Debt have been paid in full in cash or
Cash Equivalents reasonably satisfactory to such Holders if:
(x) a default in the payment of any principal, interest or
other Obligations with respect to Designated Senior Debt occurs and is
continuing beyond any applicable grace period in the agreement,
indenture or other document governing such Designated Senior Debt; or
(y) a default, other than a payment default, on Designated
Senior Debt occurs and is continuing that then permits holders of the
Designated Senior Debt to accelerate its maturity and the Trustee
receives a notice of the default (a "Payment Blockage Notice") from ACC
or a Representative who
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may give it. If the Trustee receives any such Payment Blockage Notice,
no subsequent Payment Blockage Notice shall be effective for purposes
of this Section unless and until at least 360 days shall have elapsed
since the effectiveness of the immediately prior Payment Blockage
Notice. No non-payment default that existed or was continuing on the
date of delivery of any Payment Blockage Notice to the Trustee shall
be, or be made, the basis for a subsequent Payment Blockage Notice.
ACC may and shall resume payments on and distributions in respect of
the Notes and may acquire them upon the earlier of:
(1) the date upon which the default is cured or waived, or
(2) in the case of a default referred to in Section 11.04(y)
hereof, 179 days pass after notice is received if the maturity of such
Designated Senior Debt has not been accelerated,
if this Article otherwise permits the payment, distribution or acquisition at
the time of such payment or acquisition.
Section 11.05. Acceleration of Notes.
---------------------
If payment of the Notes is accelerated because of an Event of Default,
ACC shall promptly notify holders of Senior Debt of the acceleration.
Section 11.06. When Distribution Must Be Paid Over.
-----------------------------------
In the event that the Trustee or any Holder receives any payment of any
Obligations with respect to the Notes at a time when the Trustee or such Holder,
as applicable, has actual knowledge that such payment is prohibited by Section
11.04 hereof, such payment shall be held by the Trustee or such Holder, in trust
for the benefit of and, upon written request, shall be paid forthwith over and
delivered to, the holders of Senior Debt as their interests may appear or their
Representative under the indenture or other agreement (if any) pursuant to which
Senior Debt may have been issued, as their respective interests may appear, for
application to the payment of all Obligations with respect to Senior Debt
remaining unpaid to the extent necessary to pay such Obligations in full in
accordance with their terms, after giving effect to any concurrent payment or
distribution to or for the holders of Senior Debt.
With respect to the holders of Senior Debt, the Trustee undertakes to
perform only such obligations on the part of the Trustee as are specifically set
forth in this Article 11, and no implied covenants or obligations with respect
to the holders of Senior Debt shall be read into this Indenture against the
Trustee. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Debt, and shall not be liable to any such holders if the
Trustee shall pay over or distribute to or on behalf of Holders or ACC or any
other Person money or assets to which any holders of Senior Debt shall be
entitled by virtue of this Article 11, except if such payment is made as a
result of the willful misconduct or gross negligence of the Trustee.
Section 11.07. Notice by Company.
-----------------
ACC shall promptly notify the Trustee and the Paying Agent of any facts
known to ACC that would cause a payment of any Obligations with respect to the
Notes to violate this Article, but failure to give such notice shall not affect
the subordination of the Notes to the Senior Debt as provided in this Article.
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Section 11.08. Subrogation.
-----------
After all Senior Debt is irrevocably paid in full in cash or Cash
Equivalents reasonably satisfactory to the holders thereof and until the Notes
are paid in full, Holders shall be subrogated (equally and ratably with all
other Indebtedness pari passu with the Notes) to the rights of holders of Senior
Debt to receive distributions applicable to Senior Debt to the extent that
distributions otherwise payable to the Holders have been applied to the payment
of Senior Debt. A distribution made under this Article to holders of Senior Debt
that otherwise would have been made to Holders is not, as between ACC and
Holders, a payment by ACC on the Notes.
Section 11.09. Relative Rights.
---------------
This Article defines the relative rights of Holders and holders of
Senior Debt. Nothing in this Indenture shall:
(1) impair, as between ACC and Holders, the obligation of ACC,
which is absolute and unconditional, to pay principal of and interest
on the Notes in accordance with their terms;
(2) affect the relative rights of Holders and creditors of ACC
other than their rights in relation to holders of Senior Debt; or
(3) prevent the Trustee or any Holder from exercising its
available remedies upon a Default or Event of Default, subject to the
rights of holders and owners of Senior Debt to receive distributions
and payments otherwise payable to Holders.
If ACC fails because of this Article to pay principal of or interest on
a Note on the due date, the failure is still a Default or Event of Default.
Section 11.10. Subordination May Not Be Impaired by Company.
--------------------------------------------
No right of any holder of Senior Debt to enforce the subordination of
the Debt evidenced by the Notes shall be impaired by any act or failure to act
by ACC or any Holder or by the failure of ACC or any Holder to comply with this
Indenture.
Section 11.11. Distribution or Notice to Representative.
----------------------------------------
Whenever a distribution is to be made or a notice given to holders of
Senior Debt, the distribution may be made and the notice given to their
Representative.
Upon any payment or distribution of assets of ACC referred to in this
Article 11, the Trustee and the Holders shall be entitled to rely upon any order
or decree made by any court of competent jurisdiction or upon any certificate of
such Representative or of the liquidating trustee or agent or other Person
making any distribution to the Trustee or to the Holders for the purpose of
ascertaining the Persons entitled to participate in such distribution, the
holders of Senior Debt and other Debt of ACC, the amount thereof or payable
thereon, the amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to this Article 11.
Section 11.12. Rights of Trustee and Paying Agent.
----------------------------------
Notwithstanding the provisions of this Article 11 or any other
provision of this Indenture, the Trustee shall not be charged with knowledge of
the existence of any facts that would prohibit the making of any payment or
distribution by the Trustee, and the Trustee and the Paying Agent may continue
to make payments on
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the Notes, unless the Trustee shall have received at its Corporate Trust Office
at least five Business Days prior to the date of such payment written notice of
facts that would cause the payment of any Obligations with respect to the Notes
to violate this Article. Only ACC or a Representative may give the notice.
Nothing in this Article 11 shall impair the claims of, or payments to, the
Trustee under or pursuant to Section 7.07 hereof.
The Trustee in its individual or any other capacity may hold Senior
Debt with the same rights it would have if it were not Trustee. Any Agent may do
the same with like rights.
Section 11.13. Authorization To Effect Subordination.
-------------------------------------
Each Holder of a Note by the Holder's acceptance thereof authorizes and
directs the Trustee on the Holder's behalf to take such action as may be
necessary or appropriate to effectuate the subordination as provided in this
Article 11, and appoints the Trustee to act as the Holder's attorney-in-fact for
any and all such purposes. If the Trustee does not file a proper proof of claim
or proof of debt in the form required in any proceeding referred to in Section
6.09 hereof at least 30 days before the expiration of the time to file such
claim, the agents of the lenders under the Senior Credit Facility are hereby
authorized to file an appropriate claim for and on behalf of the Holders of the
Notes.
Section 11.14. Amendments.
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The provisions of this Article 11 shall not be amended or modified
without the written consent of the holders of all Senior Debt.
ARTICLE 12
MISCELLANEOUS
Section 12.01. Trust Indenture Act Controls.
----------------------------
If provision of this Indenture limits, qualifies or conflicts with the
duties imposed by TIA ss. 318(c), the imposed duties shall control.
Section 12.02. Notices.
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Any notice or communication by ACC or the Trustee to the others is duly
given if in writing and delivered in person or mailed by first class mail
(registered or certified, return receipt requested), telex, telecopier or
overnight air courier guaranteeing next day delivery, to the others' address:
If to Allbritton Communications Company:
Allbritton Communications Company
808 Seventeenth Street, NW, Suite 300
Washington, D.C. 20006
Telecopier No.: (202) 530-0318
Telephone No.: (202) 789-2130
Attention: Stephen P. Gibson
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With a copy to:
Fulbright & Jaworski L.L.P.
801 Pennsylvania Avenue, NW, Suite 400
Washington, D.C. 20004
Telecopier No.: (202) 662-4643
Telephone No.: (202) 662-4678
Attention: Marilyn Mooney, Esq.
If to the Trustee:
State Street Bank and Trust Company
2 Avenue de Lafayette
Boston, MA 02111
Telecopier No.: (617) 662-1464
Telephone No.: (617) 662-1728
Attention: Corporate Trust Administration
(Reference - Allbritton)
ACC or the Trustee, by notice to the others, may designate additional
or different addresses for subsequent notices or communications.
All notices and communications (other than those sent to Holders) shall
be deemed to have been duly given: at the time delivered by hand, if personally
delivered; five Business Days after being deposited in the mail, postage
prepaid, if mailed; when answered back, if telexed; when receipt acknowledged,
if telecopied; and the next Business Day after timely delivery to the courier,
if sent by overnight air courier guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by first class
mail, certified or registered, return receipt requested, or by overnight air
courier guaranteeing next day delivery to its address shown on the register kept
by the Registrar. Any notice or communication shall also be so mailed to any
Person described in TIA ss. 313(c), to the extent required by the TIA. Failure
to mail a notice or communication to a Holder or any defect in it shall not
affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided above
within the time prescribed, it is duly given, whether or not the addressee
receives it.
If ACC mails a notice or communication to Holders, it shall mail a copy
to the Trustee and each Agent at the same time.
Section 12.03. Communication by Holders of Notes with Other Holders of Notes.
-------------------------------------------------------------
Holders may communicate pursuant to TIA ss. 312(b) with other Holders
with respect to their rights under this Indenture or the Notes. ACC, the
Trustee, the Registrar and anyone else shall have the protection of TIA ss.
312(c).
Section 12.04. Certificate of Opinion as to Conditions Precedent.
-------------------------------------------------
Upon any request or application by ACC to the Trustee to take any
action under this Indenture, ACC shall furnish to the Trustee:
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(a) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set
forth in Section 12.05 hereof) stating that, in the opinion of the
signers, all conditions precedent and covenants, if any, provided for
in this Indenture relating to the proposed action have been satisfied;
and
(b) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set
forth in Section 12.05 hereof) stating that, in the opinion of such
counsel, all such conditions precedent and covenants have been
satisfied.
Section 12.05. Statements Required in Certificate or Opinion.
---------------------------------------------
Each certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture (other than a certificate provided
pursuant to TIA ss. 314(a)(4)) shall comply with the provisions of TIA ss.
314(e) and shall include:
(a) a statement that the Person making such certificate or
opinion has read such covenant or condition;
(b) 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;
(c) a statement that, in the opinion of such Person, he or she
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 satisfied; and
(d) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been satisfied.
Section 12.06. Rules by Trustee and Agents.
---------------------------
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Registrar or Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
Section 12.07. No Personal Liability of Directors, Officers, Employees
and Stockholders.
-------------------------------------------------------
No past, present or future director, officer, employee, incorporator or
stockholder or other Affiliate of ACC, as such, shall have any liability for any
obligations of ACC under the Notes and this Indenture or for any claim based on,
in respect of, or by reason of, such obligations or their creation. Each Holder
by accepting a Note waives and releases all such liability. The waiver and
release are part of the consideration for issuance of the Notes.
Section 12.08. Governing Law.
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THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO
CONSTRUE THIS INDENTURE AND THE NOTES.
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Section 12.09. No Adverse Interpretation of Other Agreements.
---------------------------------------------
This Indenture may not be used to interpret any other indenture, loan
or debt agreement of ACC or its Subsidiaries or of any other Person. Any such
indenture, loan or debt agreement may not be used to interpret this Indenture.
Section 12.10. Successors.
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All agreements of ACC in this Indenture and the Notes shall bind its
successors. All agreements of the Trustee in this Indenture shall bind its
successors.
Section 12.11. Severability.
------------
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 12.12. Counterpart Originals.
---------------------
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement.
Section 12.13. Table of Contents, Headings, Etc.
--------------------------------
The Table of Contents, Cross-Reference Table and headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part of this Indenture and shall in
no way modify or restrict any of the terms or provisions hereof.
[Signatures on following page]
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SIGNATURES
Dated as of December 20, 2002 ALLBRITTON COMMUNICATIONS COMPANY,
Issuer
By: /s/ Stephen P. Gibson
Name: Stephen P. Gibson
Title: Senior Vice President-
Chief Financial Officer
(SEAL)
Dated as of December 20, 2002 STATE STREET BANK AND TRUST COMPANY,
Trustee
By: /s/Earl W. Dennison
Name: Earl W. Dennisson
Title: Vice President