Exhibit 10-1
CREDIT AGREEMENT
dated as of July 21, 1995
by and among
ACC CORP.,
and certain Subsidiaries thereof designated herein,
as Borrowers,
ACC CORP.,
as Guarantor,
the Lenders referred to herein,
FIRST UNION NATIONAL BANK OF NORTH CAROLINA,
as Managing Agent and Administrative Agent,
and
SHAWMUT BANK CONNECTICUT, N.A.,
as Managing Agent
TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS............................... 1
SECTION 1.1. DEFINITIONS............................................. 1
SECTION 1.2. GENERAL................................................. 19
SECTION 1.3. OTHER DEFINITIONS AND PROVISIONS........................ 19
ARTICLE II
REVOLVING CREDIT FACILITY........................ 19
SECTION 2.1. REVOLVING CREDIT LOANS.................................. 19
SECTION 2.2. PROCEDURE FOR ADVANCES OF LOANS......................... 20
SECTION 2.3. REPAYMENT OF LOANS...................................... 21
SECTION 2.4. REVOLVING CREDIT NOTES.................................. 22
SECTION 2.5. PERMANENT REDUCTIONS OF THE AGGREGATE COMMITMENT........ 22
SECTION 2.6. TERMINATION OF CREDIT FACILITY.......................... 23
SECTION 2.7. USE OF PROCEEDS......................................... 24
ARTICLE III
GENERAL LOAN PROVISIONS......................... 24
SECTION 3.1 INTEREST................................................. 24
SECTION 3.2 NOTICE AND MANNER OF CONVERSION OR CONTINUATION OF LOANS. 27
SECTION 3.3 FEES..................................................... 28
SECTION 3.4 MANNER OF PAYMENT........................................ 28
SECTION 3.5 CREDITING OF PAYMENTS AND PROCEEDS....................... 29
SECTION 3.6 NATURE OF OBLIGATIONS OF LENDERS REGARDING EXTENSIONS OF
CREDIT; ASSUMPTION BY ADMINISTRATIVE AGENT...................... 30
SECTION 3.7 MANDATORY REDENOMINATION OF STERLING LOANS............... 31
SECTION 3.8 CURRENCY APPRECIATION; SUBLIMITS; MANDATORY REDUCTIONS... 31
SECTION 3.9 REGULATORY LIMITATION.................................... 31
SECTION 3.10 CHANGED CIRCUMSTANCES................................... 32
SECTION 3.11 INDEMNITY............................................... 34
SECTION 3.12 CAPITAL REQUIREMENTS.................................... 34
SECTION 3.13 TAXES................................................... 35
ARTICLE IV
CLOSING; CONDITIONS OF CLOSING AND BORROWING............... 37
SECTION 4.1 CLOSING............................................ 37
SECTION 4.2 CONDITIONS TO CLOSING AND INITIAL EXTENSIONS OF CREDIT
37
SECTION 4.3 CONDITIONS TO ALL LOANS.................................. 41
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF BORROWERS............... 41
SECTION 5.1 REPRESENTATIONS AND WARRANTIES........................... 41
SECTION 5.2 SURVIVAL OF REPRESENTATIONS AND WARRANTIES, ETC.......... 50
ARTICLE VI
FINANCIAL INFORMATION AND NOTICES.................... 50
SECTION 6.1 FINANCIAL STATEMENTS AND PROJECTIONS..................... 50
SECTION 6.2 OFFICER'S COMPLIANCE CERTIFICATE......................... 51
SECTION 6.3 ACCOUNTANTS' CERTIFICATE................................. 52
SECTION 6.4 OTHER REPORTS............................................ 52
SECTION 6.5 NOTICE OF LITIGATION AND OTHER MATTERS................... 52
SECTION 6.6 ACCURACY OF INFORMATION.................................. 54
SECTION 6.7 REVISIONS OR UPDATES TO SCHEDULES........................ 54
ARTICLE VII
AFFIRMATIVE COVENANTS.......................... 54
SECTION 7.1 PRESERVATION OF CORPORATE EXISTENCE AND RELATED MATTERS.. 54
SECTION 7.2 MAINTENANCE OF PROPERTY.................................. 54
SECTION 7.3 INSURANCE................................................ 55
SECTION 7.4 ACCOUNTING METHODS AND FINANCIAL RECORDS................. 55
SECTION 7.5 PAYMENT AND PERFORMANCE OF OBLIGATIONS................... 55
SECTION 7.6 COMPLIANCE WITH LAWS AND APPROVALS....................... 55
SECTION 7.7 ENVIRONMENTAL LAWS....................................... 55
SECTION 7.8 COMPLIANCE WITH ERISA.................................... 56
SECTION 7.9 COMPLIANCE WITH AGREEMENTS............................... 56
SECTION 7.10 CONDUCT OF BUSINESS..................................... 56
SECTION 7.11 VISITS AND INSPECTIONS.................................. 56
SECTION 7.12 MATERIAL SUBSIDIARIES; ADDITIONAL COLLATERAL............ 57
SECTION 7.13 HEDGING AGREEMENT....................................... 57
SECTION 7.14 FURTHER ASSURANCES...................................... 58
ARTICLE VIII
FINANCIAL COVENANTS........................... 58
SECTION 8.1 MAXIMUM LEVERAGE RATIO................................... 58
SECTION 8.2 MINIMUM PRO FORMA DEBT SERVICE COVERAGE RATIO............ 59
SECTION 8.3 FIXED CHARGE COVERAGE RATIO.............................. 59
SECTION 8.4 MINIMUM NET WORTH........................................ 60
ARTICLE IX
NEGATIVE COVENANTS............................ 60
SECTION 9.1 LIMITATIONS ON DEBT...................................... 60
SECTION 9.2 LIMITATIONS ON CONTINGENT OBLIGATIONS.................... 61
SECTION 9.3 LIMITATIONS ON LIENS..................................... 61
SECTION 9.4 LIMITATIONS ON LOANS, ADVANCES, INVESTMENTS AND ACQUISITIONS
62
SECTION 9.5 LIMITATIONS ON MERGERS AND LIQUIDATION................... 63
SECTION 9.6 LIMITATIONS ON SALE OF ASSETS............................ 63
SECTION 9.7 LIMITATIONS ON DIVIDENDS AND DISTRIBUTIONS............... 64
SECTION 9.8 LIMITATIONS ON EXCHANGE AND ISSUANCE OF CAPITAL STOCK.... 64
SECTION 9.9 TRANSACTIONS WITH AFFILIATES............................. 65
SECTION 9.10 CERTAIN ACCOUNTING CHANGES.............................. 65
SECTION 9.11 AMENDMENTS; PAYMENTS AND PREPAYMENTS OF SUBORDINATED DEBT
65
SECTION 9.12 LICENSES................................................ 65
SECTION 9.13 RESTRICTIVE AGREEMENTS.................................. 65
ARTICLE X
UNCONDITIONAL GUARANTY.......................... 65
SECTION 10.1 GUARANTY OF OBLIGATIONS................................. 65
SECTION 10.2 NATURE OF GUARANTY...................................... 66
SECTION 10.3 DEMAND BY THE ADMINISTRATIVE AGENT...................... 67
SECTION 10.4 WAIVERS................................................. 67
SECTION 10.5 MODIFICATION OF LOAN DOCUMENTS ETC...................... 68
SECTION 10.6 REINSTATEMENT........................................... 68
SECTION 10.7 NO SUBROGATION.......................................... 69
ARTICLE XI
DEFAULT AND REMEDIES........................... 69
SECTION 11.1 EVENTS OF DEFAULT....................................... 69
SECTION 11.2 REMEDIES................................................ 72
SECTION 11.3 RIGHTS AND REMEDIES CUMULATIVE; NON-WAIVER; ETC......... 73
SECTION 11.4 CONSENTS................................................ 73
SECTION 11.5 JUDGMENT CURRENCY....................................... 74
ARTICLE XII
THE AGENTS................................ 75
SECTION 12.1 APPOINTMENT............................................. 75
SECTION 12.2 DELEGATION OF DUTIES.................................... 75
SECTION 12.3 EXCULPATORY PROVISIONS.................................. 75
SECTION 12.4 RELIANCE BY AGENTS...................................... 76
SECTION 12.5 NOTICE OF DEFAULT....................................... 76
SECTION 12.6 NON-RELIANCE ON SUCH AGENTS AND OTHER LENDERS........... 77
SECTION 12.7 INDEMNIFICATION......................................... 77
SECTION 12.8 EACH OF THE AGENTS IN ITS INDIVIDUAL CAPACITY........... 78
SECTION 12.9 RESIGNATION OF AGENTS; SUCCESSOR AGENTS................. 78
ARTICLE XIII
MISCELLANEOUS.............................. 79
SECTION 13.1 NOTICES................................................. 79
SECTION 13.2 EXPENSES................................................ 80
SECTION 13.3 SET-OFF................................................. 81
SECTION 13.4 GOVERNING LAW........................................... 81
SECTION 13.5 CONSENT TO JURISDICTION................................. 81
SECTION 13.6 WAIVER OF JURY TRIAL. ................................. 82
SECTION 13.7 REVERSAL OF PAYMENTS.................................... 82
SECTION 13.8 INJUNCTIVE RELIEF....................................... 82
SECTION 13.9 ACCOUNTING MATTERS...................................... 82
SECTION 13.10 SUCCESSORS AND ASSIGNS; PARTICIPATIONS................. 83
SECTION 13.11 AMENDMENTS, WAIVERS AND CONSENTS; RENEWAL.............. 87
SECTION 13.12 PERFORMANCE OF DUTIES.................................. 87
SECTION 13.13 INDEMNIFICATION........................................ 87
SECTION 13.14 ALL POWERS COUPLED WITH INTEREST....................... 88
SECTION 13.15 SURVIVAL OF INDEMNITIES................................ 88
SECTION 13.16 TITLES AND CAPTIONS.................................... 88
SECTION 13.17 SEVERABILITY OF PROVISIONS............................. 89
SECTION 13.18 COUNTERPARTS........................................... 89
SECTION 13.19ACC AS AGENT FOR OTHER BORROWERS................... 89
SECTION 13.20 TERM OF AGREEMENT...................................... 89
EXHIBITS
Exhibit A - Form of Revolving Credit Note
Exhibit B - Form of Notice of Borrowing
Exhibit C - Form of Notice of Conversion/Continuation
Exhibit D - Form of Officer's Certificate
Exhibit E - Form of Assignment and Acceptance
Exhibit F - Form of Pledge Agreement
Exhibit G - Form of Security Agreement
Exhibit H - Form of Landlord Consent
Exhibit I - Form of Mortgage
Exhibit J - Form of Joinder Agreement
Exhibit K - Form of Intercompany Subordination Agreement
SCHEDULES
Schedule 1.1 -Lenders and Commitments
Schedule 1.2 -Sublimits
Schedule 1.3 -Canadian Subsidiary Security Documents
Schedule 5.1(a) -Jurisdictions of Organization and Qualification to
Do Business as Foreign Corporation
Schedule 5.1(b) -Subsidiaries and Capitalization
Schedule 5.1(d) -Required Governmental Approvals
Schedule 5.1(h) -ERISA Plans
Schedule 5.1(l) -Material Contracts
Schedule 5.1(m) -Labor and Collective Bargaining Agreements
Schedule 5.1(r) -Real Property
Schedule 5.1(t) -Debt and Contingent Obligations
Schedule 5.1(u) -Litigation
Schedule 5.1(v) -Communications Licenses and Regulatory Matters
Schedule 9.3 -Existing Liens
Schedule 9.4 -Existing Loans, Advances and Investments
CREDIT AGREEMENT, dated as of the 21 day of July, 1995, by and among ACC
CORP., a corporation organized under the laws of Delaware ("ACC"), and the
Subsidiaries thereof designated as Borrowers herein, as Borrowers, ACC, as
Guarantor, the Lenders who are or may become a party to this Agreement, FIRST
UNION NATIONAL BANK OF NORTH CAROLINA, a national banking association, as
Managing Agent and Administrative Agent and SHAWMUT BANK CONNECTICUT, N.A., a
national banking association, as Managing Agent.
STATEMENT OF PURPOSE
The Borrowers have requested and the Lenders have agreed to extend
certain credit facilities to the Borrowers on the terms and conditions of this
Agreement. ACC, as parent of the other Borrowers, will benefit directly and
indirectly from the extension of such credit facilities to such Borrowers. As
a precondition to making any extensions of credit hereunder, the Lenders have
required, and ACC has agreed, to execute this Agreement as Guarantor.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, such
parties hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 DEFINITIONS. The following terms when used in this
Agreement shall have the meanings assigned to them below:
"ACC" means ACC Corp., a corporation organized under the laws of
Delaware, and its successors.
"ACC CORP. PLEDGE AGREEMENT" means the Pledge Agreement executed by ACC
in favor of the Administrative Agent for the benefit of itself and the Lenders
substantially in the form of EXHIBIT F, as amended or modified.
"ACC LEC" means ACC National Telecom Corp., a corporation organized under
the laws of Delaware, and its successors.
"ACC MASS." means ACC Long Distance of Massachusetts Corp., a corporation
organized under the laws of Delaware, and its successors.
"ACC NATIONAL" means ACC National Long Distance Corp., a corporation
organized under the laws of Delaware, and its successors.
"ACC NATIONAL PLEDGE AGREEMENT" means the Pledge Agreement executed by
ACC National in favor of the Administrative Agent for the benefit of itself and
the Lenders substantially in the form of EXHIBIT F, as amended or modified.
"ACC RADIO" means ACC Radio Corp., a corporation organized under the laws
of New York, and its successors.
"ACC U.K." means ACC Long Distance U.K., Ltd., a corporation organized
under the laws of the United Kingdom, and its successors.
"ACC U.K. SECURITY DOCUMENTS" means the collective reference to the
Debenture of even date executed by ACC U.K. in favor of the Administrative
Agent for the benefit of itself and the Lenders and any other agreement or
writing pursuant to which a U.K. Borrower, or any Subsidiary thereof, pledges
or grants a security interest in the Collateral or any such Person guarantees
or otherwise secures the payment and/or performance of the obligations of a
U.K. Borrower under the Loan Documents, in each case as amended or modified.
"ACC U.S." means ACC Long Distance Corp., a corporation organized under
the laws of New York, and its successors.
"ADDITIONAL BORROWER" means any Material Subsidiary which has become a
Borrower hereunder in accordance with Section 7.12.
"ADMINISTRATIVE AGENT" means First Union in its capacity as
administrative agent hereunder, and any successor thereto appointed pursuant to
Section 12.9.
"ADMINISTRATIVE AGENT'S CORRESPONDENT" means the financial institution
designated by the Administrative Agent to act as its correspondent hereunder in
the United Kingdom with respect to distribution and payment of Loans
denominated in Sterling.
"ADMINISTRATIVE AGENT'S OFFICE" means the office of the Administrative
Agent specified in or determined in accordance with the provisions of Section
13.1.
"AFFILIATE" means, with respect to any Person and its Subsidiaries, any
other Person (other than a Subsidiary thereof) which directly or indirectly
through one or more intermediaries, controls, or is controlled by, or is under
common control with, such first Person or any of its Subsidiaries. The term
"control" means (a) the power to vote ten percent (10%) or more of the
securities or other equity interests of a Person having ordinary voting power,
or (b) the possession, directly or indirectly, of any other power to direct or
cause the direction of the management and policies of a Person, whether through
ownership of voting securities, by contract or otherwise.
"AGENTS" means the collective reference to the Managing Agents and the
Administrative Agent.
"AGGREGATE COMMITMENT" means the aggregate amount of the Lenders'
Commitments hereunder, as such amount may be reduced at any time or from time
to time pursuant to this Agreement. On the Closing Date, the Aggregate
Commitment shall be Thirty-five Million Dollars ($35,000,000).
"AGREEMENT" means this Credit Agreement, as amended or modified from time
to time.
"APPLICABLE LAW" means all applicable provisions of constitutions, laws,
statutes, treaties, rules, regulations and orders of all Governmental
Authorities and all orders and decrees of all courts and arbitrators.
"APPLICABLE MARGIN" shall have the meaning assigned thereto in Section
3.1(c).
"ASSIGNMENT AND ACCEPTANCE" shall have the meaning assigned thereto in
Section 13.10.
"BASE RATE" means, at any time, the higher of (a) the Prime Rate or (b)
the Federal Funds Rate as determined by the Administrative Agent PLUS 1/2 of
1%; each change in the Base Rate shall take effect simultaneously with the
corresponding change or changes in the Prime Rate or the Federal Funds Rate.
"BASE RATE LOAN" means any Loan bearing interest at a rate determined
with reference to the Base Rate as provided in Section 3.1(a) hereof.
"BORROWERS" means the collective reference to the Domestic Borrowers and
U.K. Borrowers party hereto on the Closing Date and each Additional Borrower in
their respective capacities as a Borrower hereunder.
"BUSINESS DAY" means (a) for all purposes other than as set forth in
clause (b) below, any day other than a Saturday, Sunday or legal holiday on
which banks in Charlotte, North Carolina and Hartford, Connecticut are open for
the conduct of their domestic and international commercial banking business,
and (b) with respect to all notices and determinations in connection with, and
payments of principal and interest on, any LIBOR Rate Loan, any day (i) that is
a Business Day described in clause (a) and that is also a day for trading by
and between banks in deposits for the applicable Permitted Currency in the
London interbank market and (ii) on which banks are open for the conduct of
their domestic and international banking business in the place where the
Administrative Agent's Correspondent shall make available Loans in such
Permitted Currency.
"CANADIAN NOTE DOCUMENTS" means the promissory note and any other
document evidencing the loans and other advances of ACC Corp. extended in favor
of the Canadian Subsidiaries.
"CANADIAN SUBSIDIARIES" means the collective reference to each Material
Subsidiary of ACC Corp. organized under the laws of Canada or any province
thereof which is a borrower under the Canadian Note Documents.
"CANADIAN SUBSIDIARY SECURITY DOCUMENTS" means the collective reference
to documents set forth on SCHEDULE 1.3 and any other agreement or writing
pursuant to which a Canadian Subsidiary pledges or grants a security interest
in its assets in order to secure the payment and/or performance of its
obligations under the Canadian Note Documents, in each case as amended or
modified.
"CAPITAL ASSET" means, with respect to ACC and its Subsidiaries, any
asset that would, in accordance with GAAP, be required to be classified and
accounted for as a capital asset on a Consolidated balance sheet of ACC and its
Subsidiaries.
"CAPITAL EXPENDITURES" means, with respect to ACC and its Subsidiaries
for any period, the aggregate cost of all Capital Assets acquired by any such
Person during such period, determined in accordance with GAAP.
"CAPITAL LEASE" means, with respect to ACC and its Subsidiaries, any
lease of any property that would, in accordance with GAAP, be required to be
classified and accounted for as a capital lease on a Consolidated balance sheet
of ACC and its Subsidiaries.
"CHANGE IN CONTROL" shall have the meaning assigned thereto in Section
11.1(i).
"CLOSING DATE" means the date of this Agreement or such later Business
Day upon which each condition described in Article IV shall be satisfied or
waived in all respects in a manner acceptable to the Agents in their sole
discretion.
"CODE" means the Internal Revenue Code of 1986, and the rules and
regulations thereunder, each as amended or supplemented from time to time.
"COLLATERAL" means any assets pledged by ACC or any of its Subsidiaries
to the Administrative Agent for the ratable benefit of the Agents and the
Lenders in order to secure the Obligations or a portion thereof.
"COMMITMENT" means, as to any Lender, the obligation of such Lender to
make Loans to the Borrowers hereunder in an aggregate principal amount at any
time outstanding not to exceed the amount set forth opposite such Lender's name
on Schedule 1.1, as the same may be reduced or modified at any time or from
time to time pursuant to Sections 2.5 and 13.10.
"COMMITMENT PERCENTAGE" means, as to any Lender at any time, the ratio of
(a) the amount of the Commitment of such Lender to (b) the Aggregate Commitment
of all of the Lenders.
"COMMUNICATIONS LICENSE" means any long distance telecommunications or
other license, permit, consent, certificate of compliance, franchise, approval,
waiver or authorization granted or issued by the FCC, CRTC or DTI including,
without limitation, any of the foregoing authorizing or permitting the
acquisition, construction or operation of Network Facilities or any other long
distance telecommunications system.
"CONSOLIDATED" means, when used with reference to financial statements or
financial statement items of ACC and its Subsidiaries, such statements or items
on a consolidated basis in accordance with applicable principles of
consolidation under GAAP.
"CONTINGENT INTEREST AGREEMENT" means the Contingent Interest Agreement
of even date between ACC and the Managing Agents substantially in the form of
EXHIBIT F hereto, as amended or modified.
"CONTINGENT OBLIGATION" means, with respect to ACC and its Subsidiaries,
without duplication, any obligation, contingent or otherwise, of any such
Person pursuant to which such Person has directly or indirectly guaranteed any
Debt or other obligation of any other Person and, without limiting the
generality of the foregoing, any obligation, direct or indirect, contingent or
otherwise, of any such Person (a) to purchase or pay (or advance or supply
funds for the purchase or payment of) such Debt or other obligation (whether
arising by virtue of partnership arrangements, by agreement to keep well, to
purchase assets, goods, securities or services, to take-or-pay, or to maintain
financial statement condition or otherwise) or (b) entered into for the purpose
of assuring in any other manner the obligee of such Debt or other obligation of
the payment thereof or to protect such obligee against loss in respect thereof
(in whole or in part); PROVIDED, that the term Contingent Obligation shall not
include endorsements for collection or deposit in the ordinary course of
business.
"CREDIT FACILITY" means the revolving credit facility established
pursuant to Article II hereof.
"CRTC" means the Canadian Radio-Television and Telecommunications
Commission or any successor to Governmental Authority.
"CURRENT DOLLAR EQUIVALENT" means at any date, with respect to any Loan
denominated in Sterling, the amount of Dollars which is equivalent to the then
outstanding principal amount of such Loan at the most favorable spot exchange
rate determined by the Administrative Agent to be available to it for the sale
of Dollars for Sterling at approximately 11:00 A.M. (Charlotte time) two (2)
Business Days after such date. Sterling equivalents of Loans denominated in
Dollars (to the extent used herein) shall be determined by the Administrative
Agent in a manner consistent with this definition.
"DEBT" means, with respect to ACC and its Subsidiaries at any date and
without duplication, the sum of the following calculated in accordance with
GAAP: (a) all liabilities, obligations and indebtedness for borrowed money
including but not limited to obligations evidenced by bonds, debentures, notes
or other similar instruments of any such Person (excluding the Fleet Venture
Notes), (b) all obligations to pay the deferred purchase price of property or
services of any such Person, except trade payables arising in the ordinary
course of business not more than ninety (90) days past due, (c) all obligations
of any such Person as lessee under Capital Leases, (d) all Debt of any other
Person secured by a Lien on any asset of any such Person, (e) all Contingent
Obligations of any such Person, (f) all obligations, contingent or otherwise,
of any such Person relative to the face amount of letters of credit, whether or
not drawn, and banker's acceptances issued for the account of any such Person
and (g) all net obligations incurred by any such Person pursuant to Hedging
Agreements.
"DEFAULT" means any of the events specified in Section 11.1 which with
the passage of time, the giving of notice or any other condition, would
constitute an Event of Default.
"DOLLARS" OR "$" means, unless otherwise qualified, dollars in lawful
currency of the United States.
"DOLLAR AMOUNT" means (a) with respect to each Loan made or continued (or
to be made or continued) in Dollars, the principal amount thereof and (b) with
respect to each Loan made or continued (or to be made or continued) in
Sterling, the amount of Dollars which is equivalent to the principal amount of
such Loan at the most favorable spot exchange rate determined by the
Administrative Agent to be available to it for the sale of Dollars for Sterling
at approximately 11:00 A.M. (Charlotte time) two (2) Business Days before such
Loan is made or continued (or to be made or continued), as such Dollar Amount
may be adjusted from time to time pursuant to Sections 3.8 or 3.9. When used
with respect to any Sterling portion of a Loan being repaid or remaining
outstanding at any time or with respect to any other sum expressed in Sterling,
"Dollar Amount" shall mean the amount of Dollars which is equivalent to the
principal amount of such Loan, or the amount so expressed in Sterling, at the
most favorable spot exchange rate determined by the Administrative Agent to be
available to it for the sale of Dollars for Sterling at the relevant time.
Sterling amounts of Loans made, continued or denominated in Dollars (to the
extent used herein) shall be determined by the Administrative Agent in a manner
consistent with this definition.
"DOMESTIC BORROWER" means the collective reference to each Borrower which
is organized under the laws of any State of the United States or the District
of Columbia.
"DTI" means the Department of Trade and Industry of the United Kingdom or
any successor Governmental Authority.
"ELIGIBLE ASSIGNEE" means, with respect to any assignment of the rights,
interest and obligations of a Lender hereunder, a Person that is at the time of
such assignment (a) a commercial bank organized under the laws of the United
States or any state thereof, having combined capital and surplus in excess of
$500,000,000, (b) a finance company, insurance company or other financial
institution which in the ordinary course of business extends credit of the type
extended hereunder and that has total assets in excess of $1,000,000,000, (c)
already a Lender hereunder (whether as an original party to this Agreement or
as the assignee of another Lender), and (d) the successor (whether by transfer
of assets, merger or otherwise) to all or substantially all of the commercial
lending business of the assigning Lender, and, in the case of (a), (b) or any
other Person, has been approved in writing as an Eligible Assignee by ACC and
the Managing Agents.
"EMPLOYEE BENEFIT PLAN" means any employee benefit plan within the
meaning of Section 3(3) of ERISA which (a) is maintained for employees of ACC
or any ERISA Affiliate or (b) has at any time within the preceding six years
been maintained for the employees of ACC or any current or former ERISA
Affiliate.
"ENVIRONMENTAL LAWS" means any and all federal, state, provincial and
local laws, statutes, ordinances, rules, regulations, permits, licenses,
approvals, interpretations and orders of courts or Governmental Authorities,
relating to the protection of human health or the environment, including, but
not limited to, requirements pertaining to the manufacture, processing,
distribution, use, treatment, storage, disposal, transportation, handling,
reporting, licensing, permitting, investigation or remediation of Hazardous
Materials.
"ERISA" means the Employee Retirement Income Security Act of 1974, and
the rules and regulations thereunder, each as amended or modified from time to
time.
"ERISA AFFILIATE" means any Person who together with the ACC is treated
as a single employer within the meaning of Section 414(b), (c), (m) or (o) of
the Code or Section 4001(b) of ERISA.
"ESCROW JOINDER AGREEMENT" means the Escrow Joinder Agreement dated July
__, 1995, as amended or modified, executed by the Administrative Agent, ACC,
ACC Canada and The R-M Trust Company, as trustee, with respect to the shares of
ACC Canada pledged pursuant to the ACC Corp. Pledge Agreement.
"EVENT OF DEFAULT" means any of the events specified in Section 11.1,
provided that any requirement for passage of time, giving of notice, or any
other condition, has been satisfied.
"EXCESS CASH FLOW" means, for any Fiscal Year of ACC and its Subsidiaries
commencing with Fiscal Year 1996, the following calculated on a Consolidated
basis without duplication for such period in accordance with GAAP: (a)
Operating Cash Flow for such period PLUS Net Working Capital for such period
(if negative), LESS (b) the sum of (i) Fixed Charges for such period, (ii) Net
Working Capital for such period (if positive) and (iii) any payments to the
Managing Agents pursuant to the Contingent Interest Agreement during such
period.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"FCC" means the Federal Communications Commission or any successor
Governmental Authority.
"FEDERAL FUNDS RATE" means, for any day, a fluctuating interest rate per
annum equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers, as published at 11:00 a.m. (Charlotte time) for such day (or, if
such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day which is a Business Day, the average of the quotations for such day on such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"FIRST UNION" means First Union National Bank of North Carolina, a
national banking association, and its successors.
"FISCAL YEAR" means the fiscal year of ACC and its Subsidiaries ending on
December 31.
"FIXED CHARGES" means, with respect to ACC and its Subsidiaries, for any
period, the following without duplication, each calculated for such period in
accordance with GAAP: (a) all principal payments or similar amounts required to
be paid with respect to Total Debt during such period PLUS (b) Interest Expense
required to be paid during such period PLUS (c) total cash dividends or
distributions paid or payable by ACC during such period (excluding cash
dividends on the Preferred Stock which accrued but were not paid during such
period) PLUS (d) all payments in respect of any retirement, redemption or other
acquisition of the capital stock of ACC and its Subsidiaries consummated during
such period PLUS (e) all Capital Expenditures during such period PLUS (f) all
income and franchise taxes paid or payable in cash during such period.
"FLEET NOTE AND WARRANT PURCHASE AGREEMENT" means the Note and Warrant
Purchase Agreement dated May 22, 1995 by and among ACC, Fleet Venture
Resources, Inc., Fleet Equity Partners VI, L.P., and Xxxxxxxx Partners II,
L.P., as in effect on the Closing Date.
"FLEET VENTURE NOTES" means each Convertible Subordinated Promissory Note
issued pursuant to the Fleet Note and Warrant Purchase Agreement.
"FLEET VENTURE SUBORDINATION AGREEMENT" means the Subordination Agreement
of even date executed by the holders of the Fleet Venture Notes in favor of the
Administrative Agent for the benefit of the Lenders, as amended or modified.
"GAAP" means generally accepted accounting principles, as recognized by
the American Institute of Certified Public Accountants and the Financial
Accounting Standards Board, consistently applied and maintained on a consistent
basis for ACC and its Subsidiaries throughout the period indicated.
"GOVERNMENTAL APPROVALS" means all authorizations, consents, approvals,
licenses and exemptions of, registrations and filings with, and reports to, all
Governmental Authorities, including without limitation all Communications
Licenses and PUC Authorizations.
"GOVERNMENTAL AUTHORITY" means any nation, province, state or political
subdivision thereof, and any government or any Person exercising executive,
legislative, regulatory or administrative functions of or pertaining to
government, and any corporation or other entity owned or controlled, through
stock or capital ownership or otherwise, by any of the foregoing, including
without limitation the FCC, CRTC, DTI and any PUC.
"GUARANTEED OBLIGATIONS" shall have the meaning assigned thereto in
Section 10.1.
"GUARANTOR" means ACC in its capacity as guarantor under Article X
hereof.
"GUARANTY" means the unconditional guaranty agreement of ACC set forth in
Article X hereof.
"HAZARDOUS MATERIALS" means any substances or materials (a) which are or
become defined as hazardous wastes, hazardous substances, pollutants,
contaminants or toxic substances under any Environmental Law, (b) which are
toxic, explosive, corrosive, flammable, infectious, radioactive, carcinogenic,
mutagenic or otherwise harmful to human health or the environment and are or
become regulated by any Governmental Authority, (c) the presence of which
require investigation or remediation under any Environmental Law or common law,
(d) the discharge or emission or release of which requires a permit or license
under any Environmental Law or other Governmental Approval, (e) which are
deemed to constitute a nuisance, a trespass or pose a health or safety hazard
to persons or neighboring properties, (f) which are materials consisting of
underground or aboveground storage tanks, whether empty, filled or partially
filled with any substance or (g) which contain, without limitation, asbestos,
polychlorinated biphenyls, urea formaldehyde foam insulation, petroleum
hydrocarbons, petroleum derived substances or waste, crude oil, nuclear fuel,
natural gas or synthetic gas.
"HEDGING AGREEMENT" means any agreement with respect to an interest rate
swap, collar, cap, floor or a forward rate agreement or other agreement
regarding the hedging of interest rate or currency risk exposure executed in
connection with hedging the interest rate or currency exposure of the
Borrowers, and any confirming letter executed pursuant to such hedging
agreement, all as amended or modified.
"INTERCOMPANY SUBORDINATION AGREEMENT" means the Subordination Agreement
of even date substantially in the form of EXHIBIT K, as amended or modified,
executed by the Borrowers and other Subsidiaries party thereto with respect to
the loans by ACC to such Persons under the Canadian Note Documents and as
described on SCHEDULE 9.4.
"INTEREST EXPENSE" means, with respect to ACC and its Subsidiaries for
any period, total interest expense of ACC and its Subsidiaries (including
without limitation, interest expense attributable to Capital Leases and any
other capitalized interest expense) and, to the extent not included therein,
fees and other charges payable with respect to all Debt, (including fees and
charges payable with respect to Hedging Agreements, letters of credit and
similar investments), all determined on a Consolidated basis for such period in
accordance with GAAP.
"INTEREST PERIOD" shall have the meaning assigned thereto in Section
3.1(b).
"JOINDER AGREEMENT" means a Joinder Agreement substantially in the form
of EXHIBIT J executed by each Material Subsidiary in accordance with Section
7.12, as amended or modified.
"LANDLORD CONSENTS" means the Landlord Agreements substantially in the
form of EXHIBIT H or any similar agreement delivered by or on behalf of a
Borrower and executed by the owner of the parcels of real property with respect
to which a Mortgage or other Security Document has been executed in favor of
the Administrative Agent for the benefit of itself and the Lenders, as any such
Agreement may be amended or modified.
"LENDER" means each Person executing this Agreement as a Lender set forth
on the signature pages hereto and each Person that hereafter becomes a party to
this Agreement as a Lender pursuant to Section 13.10.
"LENDING OFFICE" means, with respect to any Lender, the office of such
Lender maintaining such Lender's Commitment Percentage of the Loans.
"LEVERAGE RATIO" shall have the meaning assigned thereto in Section 8.1.
"LIBOR" means the rate of interest determined on the basis of the rate
for deposits in Dollars in minimum amounts of at least $5,000,000 (or the
Dollar Amount thereof with respect to a borrowing to be made in Sterling) for a
period equal to the applicable Interest Period appearing on Telerate Page 3750
as of 11:00 a.m. (London time) two Business Days prior to the first day of the
applicable Interest Period. In the event that such rate does not appear on
Telerate Page 3750, "LIBOR" shall be determined by the Administrative Agent to
be the arithmetic average (rounded upward, if necessary, to the nearest one-
sixteenth of one percent (1/16%)) of the rate per annum at which deposits in
the Permitted Currency in which the Loan bearing interest based upon such rate
is denominated would be offered by first class banks in the London interbank
market to the Administrative Agent (or the Administrative Agent's
Correspondent) at approximately 11:00 a.m. (London time) two Business Days
prior to the first day of the applicable Interest Period for a period equal to
such Interest Period and in an amount substantially equal to the amount of the
applicable Loan.
"LIBOR RATE" means (a) LIBOR DIVIDED BY (b) one (1) LESS the Reserve
Percentage.
"LIBOR RATE LOAN" means any Loan bearing interest at a rate determined
with reference to the LIBOR Rate as provided in Section 3.1(a) hereof.
"LIEN" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset.
For the purposes of this Agreement, a Person shall be deemed to own subject to
a Lien any asset which it has acquired or holds subject to the interest of a
vendor or lessor under any conditional sale agreement, Capital Lease or other
title retention agreement relating to such asset.
"LOAN" means any revolving loan made to the Borrower pursuant to Section
2.1, and all such Loans collectively as the context requires.
"LOAN DOCUMENTS" means, collectively, this Agreement, the Notes, the
Contingent Interest Agreement, any Joinder Agreement, the Security Documents
and any supplements thereto executed in connection with any Joinder Agreement,
any Hedging Agreement executed by any Lender, the Subordination Agreements, the
Canadian Note Documents and each other document, instrument and agreement
executed and delivered by any Borrower, a Subsidiary thereof or their counsel
in connection with this Agreement or otherwise referred to herein or
contemplated hereby, all as may be amended or modified from time to time.
"MANAGING AGENTS" means First Union and Shawmut in their capacity as
managing agents hereunder, and any successor thereto in each case appointed
pursuant to Section 12.9; each, a "Managing Agent."
"MATERIAL ADVERSE EFFECT" means, with respect to ACC or any of its
Subsidiaries, a material adverse effect on the properties, business, prospects,
operations or condition (financial or otherwise) of any such Person or the
ability of any such Person to perform its obligations under the Loan Documents
to which it is a party.
"MATERIAL CONTRACT" means (a) any contract or other agreement, written or
oral, of a Borrower or any of its Subsidiaries involving monetary liability of
or to any such Person in an amount in excess of $250,000 per annum, or (b) any
other contract or agreement, written or oral, of a Borrower or any of its
Subsidiaries the failure to comply with which could reasonably be expected to
have a Material Adverse Effect.
"MATERIAL SUBSIDIARY" means any direct or indirect Subsidiary of ACC
which Subsidiary has total assets equal to or in excess of $1,000,000 and in
which a Borrower or Subsidiary has made an investment of equal to or in excess
of $1,000,000.
"MORTGAGE" means a Leasehold Mortgage substantially in the form of
EXHIBIT I or any other real property security agreement delivered by a Borrower
pursuant to which a Borrower grants a Lien on its interest in a parcel of real
property to the Administrative Agent for the benefit of itself and the Lenders.
"MULTIEMPLOYER PLAN" means a "multiemployer plan" as defined in Section
4001(a)(3) of ERISA to which ACC or any ERISA Affiliate is making, or is
accruing an obligation to make, contributions within the preceding six years.
"NET INCOME" means, with respect to ACC and its Subsidiaries for any
period, the Consolidated net income (or loss) of ACC and its Subsidiaries for
such period determined in accordance with GAAP; PROVIDED, that there shall be
excluded from net income (or loss) (a) if the ability of ACC to receive,
recover or repatriate cash or receive the economic benefits (other than any
increase in value of ACC's stock or ownership interest in a Subsidiary thereof)
from any of its Subsidiaries is materially limited or restricted for a material
period of time at any date of determination by operation of the terms of the
charter of such Subsidiary or any agreement, instrument, or Applicable Law, the
portion of the income of each such Subsidiary so restricted and (b) the effect
of any currency translation adjustments.
"NET CASH PROCEEDS" means, as applicable, (a) with respect to any sale of
assets, the gross cash proceeds received by ACC or any of its Subsidiaries from
such sale LESS the sum of (i) all legal, title, recording, transfer and income
tax expenses, commissions and similar fees and expenses incurred, and all other
federal, state, local and foreign taxes assessed, in connection therewith and
(ii) the principal amount of, premium, if any, and interest on any Debt secured
by a Lien on the asset (or a portion thereof) sold, which Debt is required to
be repaid in connection with such sale of assets, (b) with respect to any
offering of capital stock or Debt securities, the gross cash proceeds received
by ACC or any of its Subsidiaries therefrom LESS all legal, underwriting and
similar fees and expenses incurred in connection therewith and (c) with respect
to any payment under an insurance policy, the amount of cash proceeds received
by ACC or its applicable Subsidiary from the related insurance company.
"NET WORKING CAPITAL" means, with respect to ACC and its Subsidiaries for
any period, (a) Working Capital as of the last day of such period LESS (b)
Working Capital as of the day prior to the first day of such period.
"NET WORTH" means, at any date of determination thereof, the sum of the
capital stock (excluding treasury stock, cumulative translation adjustments and
capital stock subscribed and unissued) and retained earnings (including earned
surplus, capital surplus and the balance of the current profit and loss account
not transferrable to retained earnings) accounts of ACC and its Subsidiaries
appearing on a Consolidated balance sheet of ACC and its Subsidiaries prepared
in accordance with GAAP.
"NETWORK AGREEMENT" means any document or agreement entered into by ACC
or any of its Subsidiaries regarding the use, operation, maintenance or
otherwise concerning any of the Network Facilities.
"NETWORK FACILITIES" means the network of digital or analog facilities
owned or leased by ACC or any of its Subsidiaries.
"NOTES" means the separate Revolving Credit Notes made by the applicable
Borrower or Borrowers payable to the order of each Lender, substantially in the
form of EXHIBIT A-1 hereto with respect to the Domestic Borrowers and EXHIBIT
A-2 hereto with respect to the U.K. Borrowers, evidencing the Credit Facility,
and any amendments and modifications thereto, any substitutes therefor, and any
replacements, restatements, renewals or extension thereof, in whole or in part;
"Note" means any of such Notes.
"NOTICE OF BORROWING" shall have the meaning assigned thereto in Section
2.2(a).
"NOTICE OF CONVERSION/CONTINUATION" shall have the meaning assigned
thereto in Section 3.2.
"OBLIGATIONS" means, in each case, whether now in existence or hereafter
arising: (a) the principal of and interest on (including interest accruing
after the filing of any bankruptcy or similar petition) the Loans, (b) all
payment and other net obligations owing by a Borrower to any Lender or Agent
under any Hedging Agreement and (c) all other fees and commissions (including
attorney's fees), charges, indebtedness, loans, liabilities, financial
accommodations, obligations, covenants and duties owing by a Borrower to the
Lenders or to any Agent, of every kind, nature and description, direct or
indirect, absolute or contingent, due or to become due, contractual or
tortious, liquidated or unliquidated, and whether or not evidenced by any note,
and whether or not for the payment of money under or in respect of this
Agreement, any Note or any of the other Loan Documents.
"OFFICER'S COMPLIANCE CERTIFICATE" shall have the meaning assigned
thereto in Section 6.2.
"OPERATING CASH FLOW" means, with respect to ACC and its Subsidiaries for
any period, the following, each calculated on a Consolidated basis for such
period without duplication in accordance with GAAP: (a) Net Income, PLUS (b)
to the extent deducted in determining Net Income (i) income and franchise
taxes, (ii) Interest Expense and (iii) amortization and depreciation and other
similar non-cash charges LESS (c) the sum of (i) interest income, (ii) non-cash
income, (iii) capitalized costs and expenses and (iv) any items of gain (or
PLUS any non-cash items of loss) which were included in determining Net Income
and were not realized in the ordinary course of business. For purposes of
calculating compliance with Article VIII, Operating Cash Flow shall be adjusted
in a manner reasonably satisfactory to the Managing Agents to include as of the
first day of any calculation period any acquisition consummated during such
period in accordance with this Agreement and exclude as of the first day of any
calculation period any Subsidiary or assets sold in accordance with this
Agreement during such period.
"OTHER TAXES" shall have the meaning assigned thereto in Section 3.13(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any successor
agency.
"PENSION PLAN" means any Employee Benefit Plan, other than a
Multiemployer Plan, which is subject to the provisions of Title IV of ERISA or
Section 412 of the Code and which (a) is maintained for employees of ACC or any
ERISA Affiliates or (b) has at any time within the preceding six years been
maintained for the employees of ACC or any of their current or former ERISA
Affiliates.
"PERMITTED CURRENCY" means Dollars or Sterling, or each such currency, as
the context requires.
"PERSON" means an individual, corporation, partnership, association,
trust, business trust, limited liability company, joint venture, joint stock
company, pool, syndicate, sole proprietorship, unincorporated organization,
Governmental Authority or any other form of entity or group.
"PLEDGE AGREEMENT" means the collective reference to the ACC Pledge
Agreement and ACC National Pledge Agreement, or either such Pledge Agreement,
as the context requires.
"PREFERRED STOCK" means the Series A Preferred Stock of ACC governed by
and issued in accordance with the terms set forth in the Certificate of
Designation attached as EXHIBIT D to the Fleet Note and Warrant Purchase
Agreement.
"PRIME RATE" means, at any time, the rate of interest per annum publicly
announced from time to time by the Administrative Agent as its prime rate.
Each change in the Prime Rate shall be effective as of the opening of business
on the day such change in the Prime Rate occurs. The parties hereto
acknowledge that the rate announced publicly by the Administrative Agent as its
Prime Rate is an index or base rate and shall not necessarily be its lowest or
best rate charged to its customers or other banks.
"PRO FORMA DEBT SERVICE" means, with respect to ACC and its Subsidiaries
at any date of determination, the sum of the following calculated without
duplication on a Consolidated PRO FORMA basis for the period of four (4)
consecutive fiscal quarters immediately succeeding such date of determination
in accordance with GAAP: (a) all payments of principal or similar amounts
required to be paid with respect to Total Debt during such period based upon
the aggregate amount of outstanding Debt on such date of determination and (b)
Interest Expense required to be paid during such period based upon rates of
interest in effect on such date of determination.
"PROJECTIONS" shall have the meaning assigned thereto in Section 6.1(c).
"PUC" means any state, provincial or other local regulatory agency or
body that exercises jurisdiction over the rates or services or the ownership,
construction or operation of any Network Facility or long distance
telecommunications systems or over Persons who own, construct or operate a
Network Facility or long distance telecommunications systems, in each case by
reason of the nature or type of the business subject to regulation and not
pursuant to laws and regulations of general applicability to Persons conducting
business in any such jurisdiction.
"PUC AUTHORIZATIONS" means all applications, filings, reports, documents,
recordings and registrations with, and all validations, exemptions, franchises,
waivers, approvals, orders or authorizations, consents, licenses, certificates
and permits from any PUC.
"REGISTER" shall have the meaning assigned thereto in Section 13.10(d).
"REQUIRED LENDERS" means, at any date, any combination of Lenders whose
Commitment Percentages aggregate at least sixty-six and two-thirds percent (66-
2/3%) or, if the Commitments have been terminated, the holders of at least
sixty-six and two-thirds percent (66-2/3%) of the aggregate principal amount of
the Notes.
"RESERVE PERCENTAGE" means the maximum daily arithmetic reserve
requirement imposed by the Board of Governors of the Federal Reserve System (or
any successor) under Regulation D on Eurocurrency liabilities (as defined in
Regulation D) for the applicable Interest Period as of the first day of such
Interest Period, but subject to any changes in such reserve requirement
becoming effective during the Interest Period. For purposes of calculating the
Reserve Percentage, the reserve requirement shall be as set forth in Regulation
D without benefit of credit for prorations, exemptions or offsets under
Regulation D, and further without regard to whether or not any Lender elects to
actually fund any Loan or portion thereof with Eurocurrency liabilities. Each
calculation by the Administrative Agent of the LIBOR Rate shall be conclusive
and binding for all purposes, absent manifest error.
"SECURITY AGREEMENT" means the Security Agreement of even date
substantially in the form of EXHIBIT G executed by the Domestic Borrowers in
favor of the Administrative Agent for the benefit of itself and the Lenders, as
amended or modified.
"SECURITY DOCUMENTS" means the collective reference to the Security
Agreement, the Trademark Assignment, the Pledge Agreements, the Landlord
Consents, the Mortgages, the Canadian Subsidiary Security Documents, the ACC
U.K. Security Documents, the Escrow Joinder Agreement and each other agreement
or writing pursuant to which ACC or any Subsidiary thereof pledges or grants a
security interest in the Collateral or such Person guaranties the payment
and/or performance of the Obligations.
"SHAWMUT" means Shawmut Bank Connecticut, N.A., a national banking
association, and its successors.
"SOLVENT" means, as to ACC and its Subsidiaries taken on a Consolidated
basis on a particular date, that such Persons (a) have capital sufficient to
carry on their business and transactions and all business and transactions in
which they are about to engage and are able to pay their debts as they mature,
(b) own property having a value at fair valuation greater than the amount
required to pay their probable liabilities (including contingencies), and (c)
do not believe that they will incur debts or liabilities beyond their ability
to pay such debts or liabilities as they mature.
"STERLING" means pounds sterling in the lawful currency of the United
Kingdom.
"SUBLIMIT" means the maximum aggregate amount of Loans available at any
time to the applicable Borrower or group of Borrowers hereunder as set forth on
SCHEDULE 1.2. If a Sublimit on such Schedule applies to more than one
Borrower, such Sublimit shall be in the aggregate amount available to all such
Borrowers taken together, and not an amount available to each such Borrower
individually.
"SUBORDINATED DEBT" means any Debt designated as Subordinated Debt on
SCHEDULE 5.1(T) hereof and any other Debt of ACC or any Subsidiary subordinated
in right and time of payment to the Obligations on terms reasonably
satisfactory to the Required Lenders.
"SUBORDINATION AGREEMENTS" means the collective reference to the Fleet
Venture Subordination Agreement and the Intercompany Subordination Agreement,
or either such agreement, as the context requires.
"SUBSIDIARY" means as to any Person, any corporation, partnership or
other entity of which more than fifty percent (50%) of the outstanding capital
stock or other ownership interests having ordinary voting power to elect a
majority of the board of directors or other managers of such corporation,
partnership or other entity is at the time, directly or indirectly, owned by or
the management is otherwise controlled by such Person (irrespective of whether,
at the time, capital stock of any other class or classes of such corporation
shall have or might have voting power by reason of the happening of any
contingency). Unless otherwise qualified, references to "Subsidiary" or
"Subsidiaries" herein shall refer to those of ACC.
"TAXES" shall have the meaning assigned thereto in Section 3.13(a).
"TERMINATION DATE" means the earliest of the dates referred to in Section
2.6.
"TERMINATION EVENT" means: (a) a "Reportable Event" described in Section
4043 of ERISA (other than a Reportable Event as to which the provision of 30
days notice has been waived by the PBGC under applicable regulations); or (b)
the withdrawal of ACC or any ERISA Affiliate from a Pension Plan during a plan
year in which it was a "substantial employer" as defined in Section 4001(a)(2)
of ERISA; or (c) the termination of a Pension Plan, the filing of a notice of
intent to terminate a Pension Plan or the treatment of a Pension Plan amendment
as a distress termination under Section 4041(c) of ERISA; or (d) the
institution of proceedings to terminate, or the appointment of a trustee with
respect to, any Pension Plan by the PBGC; or (e) any other event or condition
which would constitute grounds under Section 4042(a) of ERISA for the
termination of, or the appointment of a trustee to administer, any Pension
Plan; or (f) the partial or complete withdrawal of ACC or any ERISA Affiliate
from a Multiemployer Plan; or (g) the imposition of a Lien pursuant to Section
412 of the Code or Section 302 of ERISA; or (h) any event or condition which
results in the reorganization or insolvency of a Multiemployer Plan under
Sections 4241 or 4245 of ERISA; or (i) any event or condition which results in
the termination of a Multiemployer Plan under Section 4041A of ERISA or the
institution by PBGC of proceedings to terminate a Multiemployer Plan under
Section 4042 of ERISA.
"TOTAL DEBT" means, with respect to ACC and its Subsidiaries at any date
of determination and without duplication, all Debt of ACC and its Subsidiaries
on a Consolidated basis.
"TRADEMARK ASSIGNMENT" means the Trademark Assignment of even date
executed by ACC in favor of the Administrative Agent for the benefit of itself
and the Lenders, as amended or modified.
"UCC" means the Uniform Commercial Code as in effect in the State of
North Carolina.
"U.K. BORROWERS" means the collective reference to each Borrower
organized under the laws of the United Kingdom or any political subdivision
thereof.
"UNITED STATES" means the United States of America.
"WHOLLY-OWNED" means, with respect to a Subsidiary, a Subsidiary all of
the shares of capital stock or other ownership interests of which are, directly
or indirectly, owned or controlled by ACC and/or one or more of its Wholly-
Owned Subsidiaries.
"WORKING CAPITAL" means, with respect to ACC and its Subsidiaries at any
date, the difference between current assets and current liabilities as of such
date determined in accordance with GAAP.
SECTION 1. GENERAL. All terms of an accounting nature not
specifically defined herein shall have the meaning assigned thereto by GAAP.
Unless otherwise specified, a reference in this Agreement to a particular
section, subsection, Schedule or Exhibit is a reference to that section,
subsection, Schedule or Exhibit of this Agreement. Wherever from the context
it appears appropriate, each term stated in either the singular or plural shall
include the singular and plural, and pronouns stated in the masculine, feminine
or neuter gender shall include the masculine, the feminine and the neuter. Any
reference herein to "Charlotte time" shall refer to the applicable time of day
in Charlotte, North Carolina.
SECTION 2. OTHER DEFINITIONS AND PROVISIONS.
(a) USE OF CAPITALIZED TERMS. Unless otherwise defined therein, all
capitalized terms defined in this Agreement shall have the defined meanings
when used in this Agreement, the Notes and the other Loan Documents or any
certificate, report or other document made or delivered pursuant to this
Agreement.
(b) MISCELLANEOUS. The words "hereof", "herein" and "hereunder" and
words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement.
ARTICLE II
REVOLVING CREDIT FACILITY
SECTION 1. REVOLVING CREDIT LOANS. Subject to the terms and
conditions of this Agreement, each Lender severally agrees to make Loans in a
Permitted Currency to the applicable Borrower or Borrowers from time to time
from the Closing Date through the Termination Date as requested by such
Borrower or Borrowers in accordance with the terms of Sections 2.1 and 2.2;
PROVIDED, that, based upon the Dollar Amount of any Loans denominated in
Dollars and the Current Dollar Equivalent of any Loans denominated in Sterling,
(a) the maximum amount of Loans available to each Borrower at any time
hereunder shall not exceed the Sublimit applicable to such Borrower, (b) the
aggregate principal amount of all outstanding Loans (after giving effect to any
amount requested) shall not exceed the Aggregate Commitment and (c) the
principal amount of outstanding Loans from any Lender to the Borrowers shall
not at any time exceed such Lender's Commitment. Each Loan by a Lender shall
be in a principal amount equal to such Lender's Commitment Percentage of the
aggregate principal amount of Loans requested on such occasion. Loans to be
made in Sterling shall be funded in an amount equal to the Dollar Amount of
such Loan. Loans to the Domestic Borrowers shall be denominated in Dollars and
Loans to the U.K. Borrowers shall be denominated in Sterling. Subject to the
terms and conditions hereof, the Borrowers may borrow, repay and reborrow Loans
hereunder until the Termination Date.
SECTION 1.2 PROCEDURE FOR ADVANCES OF LOANS.
(a) REQUESTS FOR BORROWING. The applicable Borrower or Borrowers shall
give the Administrative Agent irrevocable prior written notice in the form
attached hereto as EXHIBIT B (a "Notice of Borrowing") not later than 11:00
a.m. (Charlotte time) (i) on the same Business Day as each Base Rate Loan and
(ii) at least three (3) Business Days before each LIBOR Rate Loan, of its
intention to borrow, specifying (A) the date of such borrowing, which shall be
a Business Day, (B) whether such Loan shall be denominated in Dollars or in
Sterling, (C) the amount of such borrowing, which shall be with respect to
LIBOR Rate Loans denominated in Dollars in an aggregate principal amount of
$2,500,000 or a whole multiple of $1,000,000 in excess thereof (and with
respect to Loans denominated in Sterling, the Dollar Amount in each case
thereof), and with respect to Base Rate Loans in an aggregate principal amount
of $1,000,000 or a whole multiple of $500,000 in excess thereof, (D) if
denominated in Dollars, whether the Loans are to be LIBOR Rate Loans or Base
Rate Loans and (E) in the case of a LIBOR Rate Loan, the duration of the
Interest Period applicable thereto. Notices received after 11:00 a.m.
(Charlotte time) shall be deemed received on the next Business Day. The
Administrative Agent shall promptly notify the Lenders of each Notice of
Borrowing.
(b) DISBURSEMENT OF LOANS DENOMINATED IN DOLLARS. Not later than 1:00
p.m. (Charlotte time) on the proposed borrowing date for any Loan denominated
in Dollars, each Lender will make available to the Administrative Agent, for
the account of the applicable Borrower or Borrowers, at the office of the
Administrative Agent in Dollars in funds immediately available to the
Administrative Agent, such Lender's Commitment Percentage of the requested
borrowing. The Borrowers hereby irrevocably authorize the Administrative Agent
to disburse the proceeds of each borrowing requested pursuant to this Section
2.2(b) in immediately available funds by crediting such proceeds to a deposit
account of the applicable Borrower or Borrowers maintained with the
Administrative Agent or by wire transfer from such deposit account to another
account as may be requested by such Borrower or Borrowers by prior written
notice to the Administrative Agent.
(c) DISBURSEMENT OF LOANS DENOMINATED IN STERLING. Not later than 1:00
p.m. (the time of the Administrative Agent's Correspondent) on the proposed
borrowing date for any Loan denominated in Sterling, each Lender will make
available to the Administrative Agent at the office of the Administrative
Agent's Correspondent in Sterling in funds immediately available to the
Administrative Agent, such Lender's Commitment Percentage of the requested
borrowing to be denominated in Sterling. The Borrowers hereby irrevocably
authorize the Administrative Agent to disburse the proceeds of each borrowing
requested pursuant to this Section 2.2(b) in immediately available funds by
crediting such proceeds to an account of the applicable Borrower maintained
with the Administrative Agent's Correspondent or by wire transfer from such
deposit account to another account as may be requested by such Borrower by
prior written notice to the Administrative Agent.
(d) AVAILABILITY. Subject to Section 3.6 hereof, the Administrative
Agent shall not be obligated to disburse the proceeds of any Loan requested
pursuant to this Section 2.2 until each Lender shall have made available to the
Administrative Agent its Commitment Percentage of such Loan.
SECTION 1.3 REPAYMENT OF LOANS.
(e) REPAYMENT ON TERMINATION DATE. Each Borrower shall repay the
outstanding principal amount of all Loans made to such Borrower in full,
together with all accrued but unpaid interest thereon, on the Termination Date.
(f) MANDATORY REPAYMENT OF EXCESS LOANS. If at any time the
outstanding principal amount of all Loans exceeds the Aggregate Commitment,
such excess shall be repaid by the applicable Borrower or Borrowers in
accordance with Section 3.8.
(g) CERTAIN ASSET SALES. The Net Cash Proceeds received by any
Borrower in connection with any asset sale described in Section 9.6 (other than
Section 9.6(d)) shall be used within three (3) Business Days of receipt thereof
to prepay all outstanding Loans on a PRO RATA basis under each Sublimit.
(h) EQUITY OFFERING. Prior to June 30, 1997, the Net Cash Proceeds
received by any Borrower from any offering of equity securities shall be used
within three (3) Business Days of receipt thereof to prepay all outstanding
Loans on a PRO RATA basis under each Sublimit.
(i) CANADIAN SUBSIDIARIES. ACC Corp. shall prepay the Loans in an
amount equal to the Net Cash Proceeds received by a Canadian Subsidiary (i)
under the business interruption insurance policy of any such Person with
respect to any claim pending on the date hereof and (ii) in connection with any
equity offering described in Section 2.3(d). Each such repayment shall be used
within three (3) Business Days of receipt thereof to prepay all outstanding
Loans on a PRO RATA basis under each Sublimit.
(j) OPTIONAL REPAYMENTS. Any applicable Borrower may at any time and
from time to time repay the Loans made thereto, in whole or in part, upon at
least three (3) Business Days' irrevocable notice to the Administrative Agent
with respect to LIBOR Rate Loans and one (1) Business Day irrevocable notice
with respect to Base Rate Loans, specifying the date and amount of repayment
and whether the repayment is of LIBOR Rate Loans or Base Rate Loans or a
combination thereof, and, if of a combination thereof, the amount allocable to
each. Upon receipt of such notice, the Administrative Agent shall promptly
notify each Lender. If any such notice is given, the amount specified in such
notice shall be due and payable on the date set forth in such notice. Partial
repayments shall be in an aggregate amount of $2,500,000 or a whole multiple of
$1,000,000 in excess thereof with respect to LIBOR Rate Loans and $1,000,000 or
a whole multiple of $500,000 in excess thereof with respect to Base Rate Loans.
(k) LIMITATION ON REPAYMENT OF LIBOR RATE LOANS. No Borrower may repay
any LIBOR Rate Loan hereunder on any day other than on the last day of the
Interest Period applicable thereto unless such repayment is accompanied by any
amount required to be paid pursuant to Section 3.11.
(l) NO COMMITMENT REDUCTION. No repayment pursuant to this Section 2.3
shall require a corresponding permanent reduction in the Aggregate Commitment.
SECTION 1.4 REVOLVING CREDIT NOTES. Each Lender's Loans and the
obligation of each Borrower to repay the Loans made thereto shall be evidenced
by the Note executed by such Borrower payable to the order of such Lender
representing such Borrower's obligation to pay such Lender's Commitment
Percentage of the Sublimit of such Borrower or, if less, the aggregate unpaid
principal amount of all Loans made and to be made by such Lender to the
Borrower hereunder, PLUS interest and all other fees, charges and other amounts
due thereon. Each Note shall be dated the date hereof and shall bear interest
on the unpaid principal amount thereof at the applicable interest rate per
annum specified in Section 3.1.
SECTION 1.5 PERMANENT REDUCTIONS OF THE AGGREGATE COMMITMENT.
(m) The Borrowers shall have the right at any time and from time to time,
upon at least five (5) Business Days prior written notice to the Administrative
Agent, to permanently reduce, in whole at any time or in part from time to
time, without premium or penalty, the Aggregate Commitment in an aggregate
principal amount not less than $2,500,000 or any whole multiple of $1,000,000
in excess thereof.
(n) The Aggregate Commitment shall be reduced by (i) the amount of Net
Cash Proceeds received by any Borrower or Canadian Subsidiary (A) in connection
with any asset sale not permitted by Section 9.6, (B) in an amount greater than
$50,000 (or the equivalent thereof in any foreign currency) under any policy of
insurance of any Borrower upon receipt of any such proceeds (other than as set
forth in Section 2.3) and (C) as described in Section 2.3(d) on or after June
30, 1997 upon receipt thereof and (ii) within one hundred twenty (120) days
after each Fiscal Year end commencing with Fiscal Year end 1996, an amount
equal to seventy- five percent (75%) of Excess Cash Flow for such Fiscal Year
as set forth on the Officer's Compliance Certificate for such Fiscal Year.
(o) The Aggregate Commitment shall be permanently reduced by the
following amounts on the corresponding dates as follows:
Amount of Aggregate
DATE REDUCTION COMMITMENT
July 1, 1997 $2,450,000 $32,550,000
Oct. 1, 1997 2,450,000 30,100,000
Jan. 1, 1998 2,450,000 27,650,000
April 1, 1998 2,450,000 25,200,000
July 1, 1998 2,450,000 22,750,000
Oct. 1, 1998 2,450,000 20,300,000
Jan. 1, 1999 2,905,000 17,395,000
April 1, 1999 2,905,000 14,490,000
July 1, 1999 2,905,000 11,585,000
Oct. 1, 1999 2,905,000 8,680,000
Jan. 1, 2000 2,905,000 5,775,000
April 1, 2000 2,905,000 2,870,000
July 1, 2000 2,870,000 -0-
(p) Each permanent reduction permitted or required pursuant to this
Section 2.5 shall be accompanied by a payment of principal sufficient to reduce
the aggregate outstanding Loans of the Lenders after such reduction to the
Sublimits and Aggregate Commitment as so reduced and by payment of accrued
interest on the amount of such repaid principal. The amount of each partial
permanent reduction under this Section 2.5 shall be applied PRO RATA to reduce
each Sublimit and the remaining mandatory reduction amounts required under
Section 2.5(b). Any permanent reduction of the Aggregate Commitment to zero
shall be accompanied by payment of all outstanding Obligations and termination
of the Commitments and Credit Facility. If the reduction of the Aggregate
Commitment requires the repayment of any LIBOR Rate Loan, such reduction may be
made only on the last day of the then current Interest Period applicable
thereto unless such repayment is accompanied by any amount required to be paid
pursuant to Section 3.11.
SECTION 2. TERMINATION OF CREDIT FACILITY. The Credit Facility shall
terminate on the earliest of (a) July 1, 2000, (b) the date of termination by
the Borrower pursuant to Section 2.5(a) and (c) the date of termination by the
Administrative Agent on behalf of the Lenders pursuant to Section 11.2(a).
SECTION 3. USE OF PROCEEDS. The Borrowers shall use the proceeds of
the Loans (a) to finance the acquisition of Capital Assets, (b) to finance
loans, advances, acquisitions and investments permitted by Section 9.4, (c)
repay on the Closing Date existing Debt of the Borrowers and (d) for working
capital and general corporate requirements of the Borrowers, including the
payment of certain fees and expenses incurred in connection with the
transactions contemplated hereby.
SECTION 4. NATURE OF OBLIGATIONS; SECURITY. The obligations of the
Domestic Borrowers under their Note and the other obligations of such Borrowers
hereunder (other than the obligations of ACC as Guarantor) shall be joint and
several among such Borrowers. The obligations of the U.K. Borrowers under
their Note and the Obligations of such Borrowers hereunder shall be joint and
several among such Borrowers, but in relation to the Domestic Borrowers, shall
be several and not joint and several. The obligations of each Borrower shall
be secured in accordance with the terms of the applicable Security Documents.
ARTICLE III
GENERAL LOAN PROVISIONS
SECTION 3.1 INTEREST.
(a) INTEREST RATE OPTIONS. Subject to the provisions of this Section
3.1, at the election of the applicable Borrower or Borrowers, Loans denominated
in Dollars shall bear interest at the Base Rate or the LIBOR Rate PLUS, in each
case, the Applicable Margin as set forth below and Loans denominated in
Sterling shall bear interest at the LIBOR Rate PLUS the Applicable Margin as
set forth below. The applicable Borrower or Borrowers shall select the rate of
interest and Interest Period, if any, applicable to any Loan at the time a
Notice of Borrowing is given pursuant to Section 2.2 or at the time a Notice of
Conversion/Continuation is given pursuant to Section 3.2. Each Loan or portion
thereof bearing interest based on the Base Rate shall be a "Base Rate Loan",
and each Loan or portion thereof bearing interest based on the LIBOR Rate shall
be a "LIBOR Rate Loan". Any Loan or any portion thereof to be denominated in
Dollars as to which the applicable Borrower or Borrowers have not duly
specified an interest rate as provided herein shall be deemed a Base Rate Loan.
(b) INTEREST PERIODS. In connection with each LIBOR Rate Loan, the
applicable Borrower or Borrowers, by giving notice at the times described in
Section 3.1(a), shall elect an interest period (each, an "Interest Period") to
be applicable to such Loan, which Interest Period shall be a period of one,
two, three, or six months; PROVIDED that:
(i) the Interest Period shall commence on the date of advance of
or conversion to any LIBOR Rate Loan and, in the case of immediately successive
Interest Periods, each successive Interest Period shall commence on the date on
which the next preceding Interest Period expires;
(ii) if any Interest Period would otherwise expire on a day that
is not a Business Day, such Interest Period shall expire on the next succeeding
Business Day; PROVIDED, that if any Interest Period would otherwise expire on a
day that is not a Business Day but is a day of the month after which no further
Business Day occurs in such month, such Interest Period shall expire on the
next preceding Business Day;
(iii) any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically corresponding day
in the calendar month at the end of such Interest Period) shall end on the last
Business Day of the calendar month at the end of such Interest Period;
(iv) no Interest Period shall extend beyond the Termination Date
and no Interest Period shall be selected by the Borrower which, in connection
with mandatory reductions of the Aggregate Commitment pursuant to Section
2.5(b), would cause the early termination of such Interest Period; and
(v) with respect to Loans denominated in Dollars, there shall be
no more than three (3) Interest Periods outstanding at any time and with
respect to Loans denominated in Sterling, there shall be no more than one (1)
Interest Period for each such currency.
(c) APPLICABLE MARGIN. The Applicable Margin provided for in Section
3.1(a) with respect to the Loans (the "Applicable Margin") shall (i) on the
Closing Date equal the percentages set forth in the certificate delivered
pursuant to Section 4.2(e)(ii) and (ii) for each fiscal quarter thereafter be
determined by reference to the Leverage Ratio as of the end of the fiscal
quarter immediately preceding the delivery of the applicable Officer's
Compliance Certificate as follows:
Applicable Margin Per Annum
LEVERAGE RATIO BASE RATE + LIBOR RATE +
Greater than 3.5 1.50% 2.95%
to 1.0.
Greater than 3.0 to 1.0 1.25% 2.75%
but less than or equal to
3.5 to 1.0.
Greater than 2.5 to 1.0 but0.75% 2.25%
less than or equal to 3.0 to 1.0
Less than or equal to -0- 1.50%
2.5 to 1.0
Adjustments, if any, in the Applicable Margin shall be made by the
Administrative Agent upon receipt by the Administrative Agent of quarterly
financial statements for ACC and its Subsidiaries and the accompanying
Officer's Compliance Certificate setting forth the Leverage Ratio of ACC
and its Subsidiaries as of the most recent fiscal quarter end. Subject to
Section 3.1(d), in the event the Borrower fails to deliver such financial
statements and certificate within the time required by Section 6.2(c)
hereof, the Applicable Margin shall be the highest Applicable Margin set
forth above until the delivery of such financial statements and
certificate.
(d) DEFAULT RATE. Upon the occurrence and during the continuance of
an Event of Default, (i) the Borrower shall no longer have the option to
request LIBOR Rate Loans, (ii) all outstanding LIBOR Rate Loans shall bear
interest at a rate per annum two percent (2%) in excess of the rate then
applicable to LIBOR Rate Loans until the end of the applicable Interest
Period and convert on such date to a Base Rate Loan and bear interest
thereafter at a rate equal to two percent (2%) in excess of the rate then
applicable to Base Rate Loans and (iii) all outstanding Base Rate Loans
shall bear interest at a rate per annum equal to two percent (2%) in excess
of the rate then applicable to Base Rate Loans. Interest shall continue to
accrue on the Notes after the filing by or against any Borrower of any
petition seeking any relief in bankruptcy or under any act or law
pertaining to insolvency or debtor relief, whether state, federal or
foreign.
(e) INTEREST PAYMENT AND COMPUTATION. Interest on each Base Rate
Loan shall be payable in arrears on the last Business Day of each calendar
quarter commencing September 30, 1995, and interest on each LIBOR Rate Loan
shall be payable on the last day of each Interest Period applicable
thereto, and if such Interest Period extends over three (3) months, at the
end of each three month interval during such Interest Period. All interest
rates, fees and commissions provided hereunder shall be computed on the
basis of a 360-day year and assessed for the actual number of days elapsed,
except that interest with respect to each Base Rate Loan and the commitment
fee referenced in Section 3.3(a) shall be computed on the basis of a 365-
day year.
(f) MAXIMUM RATE. In no contingency or event whatsoever shall the
aggregate of all amounts deemed interest hereunder or under any of the
Notes charged or collected pursuant to the terms of this Agreement or
pursuant to any of the Notes exceed the highest rate permissible under any
Applicable Law which a court of competent jurisdiction shall, in a final
determination, deem applicable hereto. In the event that such a court
determines that the Lenders have charged or received interest hereunder in
excess of the highest applicable rate, the rate in effect hereunder shall
automatically be reduced to the maximum rate permitted by Applicable Law
and the Lenders shall at the Administrative Agent's option promptly refund
to the applicable Borrower or Borrowers any interest received by Lenders in
excess of the maximum lawful rate or shall apply such excess to the
principal balance of the Obligations. It is the intent hereof that the
Borrowers not pay or contract to pay, and that no Agent or any Lender
receive or contract to receive, directly or indirectly in any manner
whatsoever, interest in excess of that which may be paid by the Borrowers
under Applicable Law.
SECTION 3.2 NOTICE AND MANNER OF CONVERSION OR CONTINUATION OF LOANS.
Provided that no Default or Event of Default has occurred and is then
continuing, the Borrower shall have the option to (a) convert at any time
all or any portion of its outstanding Base Rate Loans in a principal amount
equal to $2,500,000 or any whole multiple of $1,000,000 in excess thereof
into one or more LIBOR Rate Loans denominated in Dollars, (b) upon the
expiration of any Interest Period, convert all or any part of its
outstanding LIBOR Rate Loans denominated in Dollars in a principal amount
equal to $1,000,000 or a whole multiple of $500,000 in excess thereof into
Base Rate Loans or (c) upon the expiration of any Interest Period, continue
any LIBOR Rate Loan in a principal amount of $2,500,000 or any whole
multiple of $1,000,000 in excess thereof (or with respect to Loans
denominated in Sterling, the Dollar Amount in each case thereof) as a LIBOR
Rate Loan denominated in the same Permitted Currency. Whenever the
Borrower desires to convert or continue Loans as provided above, the
Borrower shall give the Administrative Agent irrevocable prior written
notice in the form attached as EXHIBIT C (a "Notice of
Conversion/Continuation") not later than 11:00 a.m. (Charlotte time) three
(3) Business Days before the day on which a proposed conversion or
continuation of such Loan is to be effective specifying (i) the Loans to be
converted or continued, and, in the case of a LIBOR Rate Loan to be
converted or continued, the Permitted Currency in which such Loan is
denominated and the last day of the Interest Period therefor, (ii) the
effective date of such conversion or continuation (which shall be a
Business Day), (iii) the principal amount of such Loans to be converted or
continued and (iv) the Interest Period to be applicable to such converted
or continued LIBOR Rate Loan. The Administrative Agent shall promptly
notify the Lenders of such Notice of Conversion/Continuation.
SECTION 3.3 FEES.
(a) COMMITMENT FEE. The Borrowers shall pay to the Administrative
Agent, for the account of the Lenders, a non-refundable commitment fee at a
rate per annum equal to .50% on the average daily unused portion of the
Aggregate Commitment; PROVIDED, that (i) if the Leverage Ratio as set forth
in the Officer's Compliance Certificate for any fiscal quarter is less than
or equal to 2.5 to 1.0, the commitment fee payable with respect to such
amount on the immediately succeeding payment date shall be .375% and (ii)
until December 31, 1995, if any amount is unavailable to be borrowed
hereunder solely because such borrowing would cause a violation of Section
8.1, the commitment fee payable with respect to such unavailable amount for
the period of such unavailability shall be .250%. The commitment fee shall
be payable in arrears on the last Business Day of each calendar quarter
during the term of this Agreement commencing September 30, 1995, and on the
Termination Date. Such commitment fee shall be distributed by the
Administrative Agent to the Lenders PRO RATA in accordance with the
Lenders' respective Commitment Percentages.
(b) STRUCTURING AND UP-FRONT FEES. The Borrowers shall pay to the
Administrative Agent, for the account of the Lenders, a non-refundable up-
front fee and the unpaid portion of the structuring fee in accordance with
the term sheet referred to in paragraph (c) of this Section.
(c) ADMINISTRATIVE AGENT'S FEES. In order to compensate the
Administrative Agent for its obligations hereunder, the Borrowers agree to
pay to the Administrative Agent for its own account the administrative fee
set forth in the term sheet executed by ACC dated June 6, 1995, which fee
shall be payable in advance on the Closing Date and on each anniversary of
such date.
SECTION 3.4 MANNER OF PAYMENT.
(a) LOANS DENOMINATED IN DOLLARS. Each payment (including repayments
described in Article II) by any Borrower on account of the principal of or
interest on the Loans denominated in Dollars or of any fee, commission or
other amounts payable to the Lenders under this Agreement or any Note
(except as set forth in Section 3.4(b)) shall be made in Dollars not later
than 1:00 p.m. (Charlotte time) on the date specified for payment under
this Agreement to the Administrative Agent for the account of the Lenders
PRO RATA in accordance with their respective Commitment Percentages at the
Administrative Agent's Office, in immediately available funds, and shall be
made without any set-off, counterclaim or deduction whatsoever. Any
payment received after such time but before 2:00 p.m. (Charlotte time) on
such day shall be deemed a payment on such date for the purposes of Section
11.1, but for all other purposes shall be deemed to have been made on the
next succeeding Business Day. Any payment received after 2:00 p.m.
(Charlotte time) shall be deemed to have been made on the next succeeding
Business Day for all purposes.
(b) LOANS DENOMINATED IN STERLING. Each payment (including
repayments described in Article II) by any Borrower on account of the
principal of or interest on the Loans denominated in Sterling shall be made
in Sterling not later than 1:00 p.m. (the time of the Administrative
Agent's Correspondent) on the date specified for payment under this
Agreement to the Administrative Agent's account with the applicable
Administrative Agent's Correspondent for the account of the Lenders PRO
RATA in accordance with their respective Commitment Percentages, in
immediately available funds, and shall be made without any set-off,
counterclaim or deduction whatsoever. Any payment received after such time
but before 2:00 P.M. (the time of the Administrative Agent's Correspondent)
on such day shall be deemed a payment on such date for the purposes of
Section 11.1, but for all other purposes shall be deemed to have been made
on the next succeeding Business Day. Any payment received after 2:00 P.M.
(the time of the Administrative Agent's Correspondent) shall be deemed to
have been made on the next succeeding Business Day for all purposes.
(c) PRO RATA TREATMENT. Upon receipt by the Administrative Agent of
each such payment, the Administrative Agent shall credit each Lender's
account with its PRO RATA share of such payment in accordance with such
Lender's Commitment Percentage and shall wire advice of the amount of such
credit to each Lender. Each payment to the Administrative Agent of its
fees shall be made in like manner, but for the account of the
Administrative Agent. Subject to Section 3.1(b)(ii), if any payment under
this Agreement or any Note shall be specified to be made upon a day which
is not a Business Day, it shall be made on the next succeeding day which is
a Business Day and such extension of time shall in such case be included in
computing any interest if payable along with such payment.
SECTION 3.5 CREDITING OF PAYMENTS AND PROCEEDS. Unless otherwise
provided in the Security Agreement, in the event that any Borrower shall
fail to pay any of the Obligations when due and the Obligations have been
accelerated pursuant to Section 11.2, all payments received by the Lenders
upon the Notes and the other Obligations and all net proceeds from the
enforcement of the Obligations shall be applied first to all Administrative
Agent's fees and expenses then due and payable, then to all other expenses
then due and payable by the Borrowers hereunder, then to all indemnity
obligations then due and payable by the Borrowers hereunder, then to all
commitment and other fees and commissions then due and payable, then to
accrued and unpaid interest on the Notes and any termination payments due
in respect of a Hedging Agreement with any Lender (PRO RATA in accordance
with all such amounts due), then to the principal amount of the Notes, in
that order.
SECTION 3.6 NATURE OF OBLIGATIONS OF LENDERS REGARDING EXTENSIONS OF
CREDIT; ASSUMPTION BY ADMINISTRATIVE AGENT. The obligations of the Lenders
under this Agreement to make the Loans are several and are not joint or
joint and several. Unless the Administrative Agent shall have received
notice from a Lender prior to a proposed borrowing date that such Lender
will not make available to the Administrative Agent such Lender's ratable
portion of the amount to be borrowed on such date (which notice shall not
release such Lender of its obligations hereunder), the Administrative Agent
may assume that such Lender has made such portion available to the
Administrative Agent on the proposed borrowing date in accordance with
Section 2.2 and the Administrative Agent may, in reliance upon such
assumption, make available to the Borrower on such date a corresponding
amount. If such amount is made available to the Administrative Agent on a
date after such borrowing date, such Lender shall pay to the Administrative
Agent on demand an amount, until paid, equal to (a) with respect to a Loan
denominated in Dollars the amount of such Lender's Commitment Percentage of
such borrowing and interest thereon at a rate per annum equal to the daily
average Federal Funds Rate during such period as determined by the
Administrative Agent and (b) with respect to a Loan denominated in
Sterling, such Lender's Commitment Percentage of such borrowing at a rate
per annum equal to the Administrative Agent's aggregate marginal cost
(including the cost of maintaining any required reserves or deposit
insurance and of any fees, penalties, overdraft charges or other costs or
expenses incurred by the Administrative Agent as a result of the failure to
deliver funds hereunder) of carrying such amount. A certificate of the
Administrative Agent with respect to any amounts owing under this Section
shall be conclusive, absent manifest error. If such Lender's Commitment
Percentage of such borrowing is not made available to the Administrative
Agent by such Lender within three (3) Business Days of such borrowing date,
the Administrative Agent shall be entitled to recover such amount made
available by the Administrative Agent with interest thereon at the rate per
annum then applicable to such Loan hereunder, on demand, from the
applicable Borrower or Borrowers. The failure of any Lender to make its
Commitment Percentage of any Loan available shall not relieve it or any
other Lender of its obligation, if any, hereunder to make its Commitment
Percentage of such Loan available on such borrowing date, but no Lender
shall be responsible for the failure of any other Lender to make its
Commitment Percentage of such Loan available on the borrowing date.
SECTION 3.7 MANDATORY REDENOMINATION OF STERLING LOANS. If any LIBOR
Rate Loan denominated in Sterling is required to be converted to a Base
Rate Loan pursuant to Sections 3.1(d), 3.10 or any other applicable
provision hereof, such Base Rate Loan shall be funded in Dollars under the
Sublimit of the Domestic Borrowers (excluding ACC LEC) in an amount equal
to the Dollar Amount of such LIBOR Rate Loan, all subject to the provisions
of Section 3.8. The applicable Borrower or Borrowers shall reimburse the
Lenders upon any such conversion for any amounts required to be paid under
Section 3.11.
SECTION 3.8 CURRENCY APPRECIATION; SUBLIMITS; MANDATORY REDUCTIONS.
(a) AGGREGATE COMMITMENTS. If at any time and for any reason, the
aggregate principal amount of all Loans denominated in Dollars and the
aggregate Current Dollar Equivalent of all Loans denominated in Sterling as
of such time exceeds the Aggregate Commitment, the applicable Borrower or
Borrowers shall (i) if (and to the extent) necessary to eliminate such
excess, immediately repay outstanding Base Rate Loans, if any, by the
Dollar Amount of such excess, and/or reduce any pending request for a Base
Rate Loan on such day by the Dollar Amount of such excess, to the extent
thereof and (ii) if (and to the extent) necessary to eliminate such excess,
immediately repay LIBOR Rate Loans and/or reduce any pending requests for a
borrowing or continuation or conversion of such Loans submitted in respect
of such Loans on such day, by the Dollar Amount of such excess, to the
extent thereof.
(b) SUBLIMITS. If at any time and for any reason the aggregate
principal amount of all Loans denominated in Dollars or the aggregate
Current Dollar Equivalent of all Loans denominated in Sterling as of such
time, exceeds the Sublimit applicable to any Borrower or Borrowers, such
Borrower or Borrowers shall (i) immediately repay Base Rate Loans
outstanding to such Borrower or Borrowers, if any, by the Dollar Amount of
any such excess and/or reduce on such day any pending request for a Base
Rate Loan submitted by such Borrower or Borrowers by the Dollar Amount of
such excess, to the extent thereof and (ii) immediately repay LIBOR Rate
Loans and/or reduce any pending requests for a borrowing or continuation or
conversion submitted in respect of such Loans on such day, by the Dollar
Amount of any remaining excess, to the extent thereof.
(c) COMPLIANCE AND PAYMENTS. Each Borrower's compliance with this
Section 3.8 shall be tested on each day an interest payment is due under
Section 3.1(e). All payments pursuant to this Section 3.8 shall be
accompanied by any amount required to be repaid under Section 3.11.
SECTION 3.9 REGULATORY LIMITATION. In the event, as a result of
increases in the value of Sterling against the Dollar or for any other
reason, the obligation of any of the Lenders to make Loans (taking into
account the Dollar Amount of the Obligations and all other indebtedness
required to be aggregated under 12 USCA 84, as amended, the regulations
promulgated thereunder and any other Applicable Law) is determined by such
Lender to exceed its then applicable legal lending limit under 12 USCA 84,
as amended, and the regulations promulgated thereunder, or any other
Applicable Law, the amount of additional Loans such Lender shall be
obligated to make hereunder shall immediately be reduced to the maximum
amount which such Lender may legally advance (as determined by such
Lender), the obligation of each of the remaining Lenders hereunder shall be
proportionately reduced, based on their applicable Commitment Percentages,
and, to the extent necessary under such laws and regulations (as determined
by each of the Lenders, with respect to the applicability of such laws and
regulations to itself), the Borrowers shall reduce, or cause to be reduced,
complying to the extent practicable with the remaining provisions hereof,
the Obligations outstanding hereunder by an amount sufficient to comply
with such maximum amounts.
SECTION 3.10 CHANGED CIRCUMSTANCES.
(a) CIRCUMSTANCES AFFECTING LIBOR RATE AVAILABILITY. If with respect
to any Interest Period the Administrative Agent or any Lender (after
consultation with Administrative Agent) shall determine that (i) by reason
of circumstances affecting the foreign exchange and interbank markets
generally, deposits in eurodollars or Sterling, in the applicable amounts
are not being quoted via Telerate Page 3750 or offered to the
Administrative Agent or such Lender for such Interest Period, (ii) a
fundamental change has occurred in the foreign exchange or interbank
markets with respect to Sterling (including, without limitation, changes in
national or international financial, political or economic conditions or
currency exchange rates or exchange controls) or (iii) it has become
otherwise materially impractical for the Administrative Agent or the
Lenders, as applicable, to make such Loan in Sterling, then the
Administrative Agent shall forthwith give notice thereof to the Borrowers.
Thereafter, until the Administrative Agent notifies the Borrowers that such
circumstances no longer exist, the obligation of the Lenders to make LIBOR
Rate Loans, and the right of the Borrowers to convert any Loan to or
continue any Loan as a LIBOR Rate Loan, shall be suspended, and the
applicable Borrower or Borrowers shall repay in full (or cause to be repaid
in full) the then outstanding principal amount of each such LIBOR Rate
Loan, together with accrued interest thereon, on the last day of the then
current Interest Period applicable to such LIBOR Rate Loan or convert the
then outstanding principal amount of each such LIBOR Rate Loan to a Base
Rate Loan as of the last day of such Interest Period.
(b) LAWS AFFECTING LIBOR RATE AVAILABILITY. If, after the date
hereof, the introduction of, or any change in, any Applicable Law or any
change in the interpretation or administration thereof by any Governmental
Authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Lender (or
any of their respective Lending Offices) with any request or directive
(whether or not having the force of law) of any such Authority, central
bank or comparable agency, shall make it unlawful or impossible for any of
the Lenders (or any of their respective Lending Offices) to honor its
obligations hereunder to make or maintain any LIBOR Rate Loan, such Lender
shall promptly give notice thereof to the Administrative Agent and the
Administrative Agent shall promptly give notice to the Borrowers and the
other Lenders. Thereafter, until Administrative Agent notifies the
Borrowers that such circumstances no longer exist (which notification shall
be given as soon as practicable, but in any event not later than thirty
(30) days after the Administrative Agent obtains actual knowledge that such
circumstances no longer exist), (i) the obligations of the Lenders to make
LIBOR Rate Loans and the right of the Borrower to convert any Loan or
continue any Loan as a LIBOR Rate Loan shall be suspended and thereafter
the Borrower may select only Base Rate Loans hereunder, and (ii) if any of
the Lenders may not lawfully continue to maintain a LIBOR Rate Loan to the
end of the then current Interest Period applicable thereto as a LIBOR Rate
Loan, the applicable LIBOR Rate Loan shall immediately be converted to a
Base Rate Loan for the remainder of such Interest Period.
(c) INCREASED COSTS. If, after the date hereof, the introduction of,
or any change in, any Applicable Law, or in the interpretation or
administration thereof by any Governmental Authority, central bank or
comparable agency charged with the interpretation or administration
thereof, or compliance by any of the Lenders (or any of their respective
Lending Offices) with any request or directive (whether or not having the
force of law) of such Authority, central bank or comparable agency:
(i) shall subject any of the Lenders (or any of their respective
Lending Offices) to any tax, duty or other charge with respect to any LIBOR
Rate Loan or any Note or shall change the basis of taxation of payments to
any of the Lenders (or any of their respective Lending Offices) of the
principal of or interest on any LIBOR Rate Loan or any Note or any other
amounts due under this Agreement in respect thereof (except for changes in
the rate of tax on the overall net income of any of the Lenders or any of
their respective Lending Offices imposed by the jurisdiction in which such
Lender is organized or is or should be qualified to do business or such
Lending Office is located); or
(ii) shall impose, modify or deem applicable any reserve
(including, without limitation, any imposed by the Board of Governors of
the Federal Reserve System), special deposit, insurance or capital or
similar requirement against assets of, deposits with or for the account of,
or credit extended by any of the Lenders (or any of their respective
Lending Offices) or shall impose on any of the Lenders (or any of their
respective Lending Offices) or the foreign exchange and interbank markets
any other condition affecting any LIBOR Rate Loan or any Note;
and the result of any of the foregoing is to increase the costs to any of
the Lenders of maintaining any LIBOR Rate Loan or to reduce the yield or
amount of any sum received or receivable by any of the Lenders under this
Agreement or under the Notes in respect of a LIBOR Rate Loan, then such
Lender shall promptly notify the Administrative Agent, and the
Administrative Agent shall promptly notify the Borrower of such fact and
demand compensation therefor and, within fifteen (15) days after such
notice by Administrative Agent, the Borrower shall pay to such Lender such
additional amount or amounts as will compensate such Lender or Lenders for
such increased cost or reduction. The Administrative Agent will promptly
notify the Borrower of any event of which it has knowledge which will
entitle such Lender to compensation pursuant to this Section 3.10(c);
PROVIDED, that the Administrative Agent shall incur no liability whatsoever
to the Lenders or the Borrower in the event it fails to do so. A
certificate of the Administrative Agent setting forth the basis for
determining such additional amount or amounts necessary to compensate such
Lender or Lenders shall be conclusively presumed to be correct save for
manifest error.
SECTION 3.11 INDEMNITY. The Borrower hereby indemnifies each of the
Lenders against any loss or expense (including without limitation any
foreign exchange costs) which may arise or be attributable to each Lender's
obtaining, liquidating or employing deposits or other funds acquired to
effect, fund or maintain the Loans (a) as a consequence of any failure by
the Borrower to make any payment when due of any amount due hereunder in
connection with a LIBOR Rate Loan, (b) due to any failure of the Borrower
to borrow on a date specified therefor in a Notice of Borrowing or Notice
of Continuation/Conversion with respect to any LIBOR Rate Loan or (c) due
to any payment, prepayment or conversion of any LIBOR Rate Loan on a date
other than the last day of the Interest Period therefor. Each Lender's
calculations of any such loss or expense shall be furnished to the Borrower
and shall be conclusive, absent manifest error.
SECTION 3.12 CAPITAL REQUIREMENTS. If either (a) the introduction
of, or any change in, or in the interpretation of, any Applicable Law or
(b) compliance with any guideline or request from any central bank or
comparable agency or other Governmental Authority (whether or not having
the force of law), has or would have the effect of reducing the rate of
return on the capital of, or has affected or would affect the amount of
capital required to be maintained by, any Lender or any corporation
controlling such Lender as a consequence of, or with reference to the
Commitments and other commitments of this type, below the rate which the
Lender or such other corporation could have achieved but for such
introduction, change or compliance, then within five (5) Business Days
after written demand by any such Lender, the Borrowers shall pay to such
Lender from time to time as specified by such Lender additional amounts
sufficient to compensate such Lender or other corporation for such
reduction. A certificate as to such amounts submitted to the Borrowers and
the Administrative Agent by such Lender, shall, in the absence of manifest
error, be presumed to be correct and binding for all purposes.
SECTION 3.13 TAXES.
(a) PAYMENTS FREE AND CLEAR. Any and all payments by the Borrowers
hereunder or under the Notes shall be made free and clear of and without
deduction for any and all present or future taxes, levies, imposts,
deductions, charges or withholding, and all liabilities with respect
thereto excluding, (i) in the case of each Lender and each Agent, income
and franchise taxes imposed by the jurisdiction under the laws of which
such Lender or Agent (as the case may be) is organized or is or should be
qualified to do business or any political subdivision of such jurisdiction
or country which includes such jurisdiction and (ii) in the case of each
Lender, income and franchise taxes imposed by the jurisdiction of such
Lender's Lending Office or any political subdivision of such jurisdiction
or country which includes such jurisdiction (all such non-excluded taxes,
levies, imposts, deductions, charges, withholdings and liabilities being
hereinafter referred to as "Taxes"). If any Borrower shall be required by
law to deduct any Taxes from or in respect of any sum payable hereunder or
under any Note to any Lender or any Agent, (A) the sum payable shall be
increased as may be necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this
Section 3.13) such Lender or Agent (as the case may be) receives an amount
equal to the amount such party would have received had no such deductions
been made, (B) such Borrower shall make such deductions, (C) such Borrower
shall pay the full amount deducted to the relevant taxing authority or
other authority in accordance with applicable law, and (D) such Borrower
shall deliver to the Administrative Agent evidence of such payment to the
relevant taxing authority or other authority in the manner provided in
Section 3.13(d).
(b) STAMP AND OTHER TAXES. In addition, the Borrowers shall pay any
present or future stamp, registration, recordation or documentary taxes or
any other similar fees or charges or excise or property taxes, levies of
the United States or any state or political subdivision thereof or any
applicable foreign jurisdiction which arise from any payment made hereunder
or from the execution, delivery or registration of, or otherwise with
respect to, this Agreement, the Loans, the other Loan Documents, or the
perfection of any rights or security interest in respect thereto
(hereinafter referred to as "Other Taxes").
(c) INDEMNITY. The Borrowers shall indemnify each Lender and each
Agent for the full amount of Taxes and Other Taxes (including, without
limitation, any Taxes and Other Taxes imposed by any jurisdiction on
amounts payable under this Section 3.13) paid by such Lender or Agent (as
the case may be) and any liability (including penalties, interest and
expenses) arising therefrom or with respect thereto, whether or not such
Taxes or Other Taxes were correctly or legally asserted. Such
indemnification shall be made within thirty (30) days from the date such
Lender or Agent (as the case may be) makes written demand therefor.
(d) EVIDENCE OF PAYMENT. Within thirty (30) days after the date of
any payment of Taxes or Other Taxes, the affected Borrower shall furnish to
the Administrative Agent, at its address referred to in Section 13.1, the
original or a certified copy of a receipt evidencing payment thereof or
other evidence of payment satisfactory to the Administrative Agent.
(e) DELIVERY OF TAX FORMS. Each Lender organized under the laws of a
jurisdiction other than the United States or any state thereof shall
deliver to the Borrower, with a copy to the Administrative Agent, on the
Closing Date or concurrently with the delivery of the relevant Assignment
and Acceptance, as applicable, (i) two United States Internal Revenue
Service Forms 4224 or Forms 1001, as applicable (or successor forms)
properly completed and certifying in each case that such Lender is entitled
to a complete exemption from withholding or deduction for or on account of
any United States federal income taxes, and (ii) an Internal Revenue
Service Form W-8 or W-9 or successor applicable form, as the case may be,
to establish an exemption from United States backup withholding taxes.
Each such Lender further agrees to deliver to the Borrower, with a copy to
the Administrative Agent, a Form 1001 or 4224 and Form W-8 or W-9, or
successor applicable forms or manner of certification, as the case may be,
on or before the date that any such form expires or becomes obsolete or
after the occurrence of any event requiring a change in the most recent
form previously delivered by it to the Borrower, certifying in the case of
a Form 1001 or 4224 that such Lender is entitled to receive payments under
this Agreement without deduction or withholding of any United States
federal income taxes (unless in any such case an event (including without
limitation any change in treaty, law or regulation) has occurred prior to
the date on which any such delivery would otherwise be required which
renders such forms inapplicable or the exemption to which such forms relate
unavailable and such Lender notifies the Borrower and the Administrative
Agent that it is not entitled to receive payments without deduction or
withholding of United States federal income taxes) and, in the case of a
Form W-8 or W-9, establishing an exemption from United States backup
withholding tax.
(f) SURVIVAL. Without prejudice to the survival of any other
agreement of the Borrower hereunder, the agreements and obligations of the
Borrower contained in this Section 3.13 shall survive the payment in full
of the Obligations and the termination of the Commitments.
ARTICLE IV
CLOSING; CONDITIONS OF CLOSING AND BORROWING
SECTION 4.1 CLOSING. The closing shall take place at the offices of
Xxxxxxx Xxxxxxxxx Xxxxxxx & Xxxxxxx, L.L.P., 000 Xxxxx Xxxxx Xxxxxx, Xxxxx
0000, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 at 10:00 a.m. on July __, 1995, or on
such other date as the parties hereto shall mutually agree.
SECTION 4.2 CONDITIONS TO CLOSING AND INITIAL EXTENSIONS OF CREDIT.
The obligation of the Lenders to close this Agreement and to make the
initial Loan is subject to the satisfaction of each of the following
conditions:
(a) EXECUTED LOAN DOCUMENTS. (i) This Agreement, (ii) the Notes,
(iii) the Security Agreement, (iv) the Trademark Assignment, (v) the Pledge
Agreements, (vi) the Mortgages, (vii) the Landlord Consents, (viii) the
Contingent Interest Agreement, (ix) the Canadian Subsidiary Security
Documents and Canadian Note Documents, (x) the ACC U.K. Security Documents,
(xi) the Subordination Agreements and (xii) the Escrow Joinder Agreement
shall have been duly authorized, executed and delivered to the Agents in
form and substance satisfactory thereto by the parties thereto, shall be in
full force and effect and no default shall exist thereunder, and the
Borrower shall have delivered original counterparts thereof to the
Administrative Agent.
(b) CLOSING CERTIFICATES; ETC.
(i) COMPLIANCE CERTIFICATE OF THE BORROWERS. The Administrative
Agent shall have received a certificate from the chief executive officer or
chief financial officer of ACC, in form and substance reasonably
satisfactory to the Administrative Agent, to the effect that all
representations and warranties of the Borrowers contained in this Agreement
and the other Loan Documents are true, correct and complete; that the
Borrowers are not in violation of any of the covenants contained in this
Agreement and the other Loan Documents; that, after giving effect to the
transactions contemplated by this Agreement, no Default or Event of Default
has occurred and is continuing; that the Borrowers have satisfied each of
the closing conditions to be satisfied thereby; and that the Borrowers have
filed all required tax returns and owe no delinquent taxes.
(ii) CERTIFICATE OF SECRETARY OF EACH BORROWER. The
Administrative Agent shall have received a certificate of the secretary or
assistant secretary (or director with respect to ACC U.K.) of each Borrower
certifying, as applicable, that attached thereto is a true and complete
copy of the articles of incorporation or other charter documents of such
Borrower and all amendments thereto, certified as of a recent date by the
appropriate Governmental Authority in its jurisdiction of incorporation;
that attached thereto is a true and complete copy of the bylaws of such
Borrower as in effect on the date of such certification; that attached
thereto is a true and complete copy of resolutions duly adopted by the
Board of Directors of such Borrower, authorizing the borrowings
contemplated hereunder and the execution, delivery and performance of this
Agreement and the other Loan Documents to which it is a party; and as to
the incumbency and genuineness of the signature of each officer of such
Borrower executing Loan Documents to which such Person is a party.
(iii) CERTIFICATES OF GOOD STANDING. The Administrative Agent
shall have received long-form certificates as of a recent date of the good
standing of each Borrower under the laws of their respective jurisdictions
of organization and such other jurisdictions requested by the Agents.
(iv) OPINIONS OF COUNSEL. The Administrative Agent shall have
received favorable opinions of United States, Canadian and United Kingdom
counsel to the Borrowers addressed to the Agents and Lenders with respect
to such Persons, the Loan Documents and regulatory matters (including
without limitation Communications Licenses and PUC Authorizations)
reasonably satisfactory in form and substance to the Agents and Lenders.
(v) TAX FORMS. The Administrative Agent shall have received
copies of the United States Internal Revenue Service forms required by
Section 3.13 hereof.
(c) COLLATERAL.
(i) FILINGS AND RECORDINGS. All filings that are necessary to
perfect the Liens of the Administrative Agent and the Lenders in the
Collateral described in the Security Documents shall have been filed in all
appropriate locations and the Administrative Agent shall have received
evidence satisfactory to the Administrative Agent that such security
interests constitute valid and perfected first priority Liens therein,
subject to Liens permitted by Section 9.3.
(ii) PLEDGED STOCK. The Administrative Agent shall have received
original stock certificates evidencing the capital stock pledged pursuant
to the Pledge Agreements, together with an appropriate undated stock power
for each certificate duly executed in blank by the registered owner
thereof.
(iii) LIEN SEARCHES. The Administrative Agent shall have received
the results of a Lien search of all filings made against such Borrowers
under the Uniform Commercial Code as in effect in any jurisdiction in which
any of their assets are located, indicating among other things that their
assets are free and clear of any Lien except for the Liens permitted by
Section 9.3.
(iv) MORTGAGE DOCUMENTS. The Administrative Agent shall have
received such mortgagee title and hazard insurance policies, title
searches, property surveys, appraisals and environmental assessments with
respect to each property covered by a Mortgage as it shall reasonably
request in writing from the applicable Borrower.
(v) INSURANCE. The Administrative Agent shall have received
certificates of insurance and copies (certified by the applicable Borrower)
of insurance policies in the form required under Section 7.3 and the
Security Documents and otherwise in form and substance reasonably
satisfactory to the Administrative Agent.
(d) CONSENTS; NO ADVERSE CHANGE.
(i) GOVERNMENTAL AND THIRD PARTY APPROVALS. All necessary
approvals, authorizations and consents, if any be required, of any Person
and of all Governmental Authorities and courts having jurisdiction with
respect to the execution and delivery of this Agreement and the other Loan
Documents shall have been obtained and copies thereof delivered to the
Administrative Agent.
(ii) PERMITS AND LICENSES. All permits and licenses, including
permits and licenses required under Applicable Laws, necessary to the
current conduct of business by the Borrowers and their Subsidiaries shall
have been obtained.
(iii) NO INJUNCTION, ETC. No action, proceeding, investigation,
regulation or legislation shall have been instituted, threatened or
proposed before any Governmental Authority to enjoin, restrain, or
prohibit, or to obtain substantial damages in respect of, or which is
related to or arises out of this Agreement or the other Loan Documents or
the consummation of the transactions contemplated hereby or thereby, or
which, in the Managing Agents' reasonable discretion, would make it
inadvisable to consummate the transactions contemplated by this Agreement
and such other Loan Documents.
(iv) NO MATERIAL ADVERSE CHANGE. There shall not have occurred
any material adverse change in the condition (financial or otherwise),
operations, properties, business or prospects of the Borrowers and their
Subsidiaries, or any event or condition that has had or could be reasonably
expected to have a Material Adverse Effect.
(v) NO EVENT OF DEFAULT. No Default or Event of Default shall
have occurred and be continuing.
(e) FINANCIAL MATTERS.
(i) FINANCIAL STATEMENTS. The Agents shall have received the
most recent audited Consolidated financial statements of ACC and its
Subsidiaries.
(ii) FINANCIAL CONDITION CERTIFICATE. ACC shall have delivered
to the Administrative Agent a certificate, in form and substance reasonably
satisfactory to such Agent, and certified as accurate in all material
respects by the chief executive officer or chief financial officer of ACC,
that (A) attached thereto is a PRO FORMA balance sheet of ACC and its
Subsidiaries setting forth on a PRO FORMA basis the financial condition of
ACC and its Subsidiaries on a Consolidated basis as of that date,
reflecting on a PRO FORMA basis the effect of the transactions contemplated
herein, including all material fees and expenses in connection therewith,
and evidencing compliance on a PRO FORMA basis with the covenants contained
in Articles VIII and IX hereof, (B) the financial projections previously
delivered to the Managing Agents represent the good faith opinions of the
Borrowers and senior management thereof as to the projected results
contained therein, and (C) attached thereto is a calculation of the
Applicable Margin in accordance with Section 3.1(c) as of March 31, 1995.
(iii) EQUITY PROCEEDS. The Borrower shall deliver evidence
reasonably satisfactory to the Administrative Agent of receipt by ACC of
Net Cash Proceeds in an amount equal to at least $11,000,000 from its
offering of equity securities from March 29, 1995 to April 15, 1995,
pursuant to Regulation S of the Securities Act of 1933, as amended.
(iv) FLEET VENTURE INVESTMENT. The Fleet Note and Warrant
Purchase Agreement shall have been executed upon terms satisfactory to the
Managing Agents and ACC shall have received Net Cash Proceeds from the
offering of the Fleet Venture Notes thereunder in an amount not less than
$8,700,000.
(v) PAYMENT AT CLOSING. There shall have been paid by the
Borrowers to the Agents and the Lenders the fees set forth or referenced in
Section 3.3 and any other accrued and unpaid fees or commissions due
hereunder (including, without limitation, legal fees and expenses), and to
any other Person such amount as may be due thereto in connection with the
transactions contemplated hereby, including all taxes, fees and other
charges in connection with the execution, delivery, recording, filing and
registration of any of the Loan Documents. The Administrative Agent shall
have received duly authorized and executed copies of the term sheet
referred to in Section 3.3(c).
(f) MISCELLANEOUS.
(i) NOTICE OF BORROWING. The Administrative Agent shall have
received written instructions from the applicable Borrower to the
Administrative Agent directing the payment of any proceeds of Loans made
under this Agreement that are to be paid on the Closing Date.
(ii) PROCEEDINGS AND DOCUMENTS. All opinions, certificates and
other instruments and all proceedings in connection with the transactions
contemplated by this Agreement shall be reasonably satisfactory in form and
substance to the Lenders. The Lenders shall have received copies of all
other instruments and other evidence as the Lender may reasonably request,
in form and substance reasonably satisfactory to the Lenders, with respect
to the transactions contemplated by this Agreement and the taking of all
actions in connection therewith.
(iii) DUE DILIGENCE AND OTHER DOCUMENTS. The Borrower shall have
delivered to the Administrative Agent such other documents, certificates
and opinions as the Agents reasonably request, including without limitation
copies of each document evidencing or governing the Subordinated Debt,
certified by a secretary or assistant secretary of the applicable Borrower
as a true and correct copy thereof.
SECTION 4.3 CONDITIONS TO ALL LOANS. The obligations of the Lenders
to make any Loan is subject to the satisfaction of the following conditions
precedent on the relevant borrowing or issue date, as applicable:
(i) CONTINUATION OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties contained in Article V shall be true and
correct on and as of such borrowing or issuance date with the same effect
as if made on and as of such date.
(ii) NO EXISTING DEFAULT. No Default or Event of Default shall
have occurred and be continuing hereunder on the borrowing date with
respect to such Loan or after giving effect to the Loans to be made on such
date.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF BORROWERS
SECTION 5.1 REPRESENTATIONS AND WARRANTIES. To induce the Agents to
enter into this Agreement and the Lenders to make the Loans, the Borrowers
hereby represent and warrant to the Agents and Lenders that:
(a) ORGANIZATION; POWER; QUALIFICATION. Each of ACC and its
Subsidiaries is duly organized, validly existing and in good standing under
the laws of the jurisdiction of its incorporation or formation, has the
power and authority to own its properties and to carry on its business as
now being conducted and is duly qualified and authorized to do business in
each jurisdiction where its business requires such qualification and
authorization. The jurisdictions in which ACC and its Subsidiaries are
organized and qualified to do business are described on SCHEDULE 5.1(A).
(b) OWNERSHIP. Each Material Subsidiary and other Subsidiary of ACC
is listed on SCHEDULE 5.1(B). The capitalization of ACC and its
Subsidiaries consists of the number of shares, authorized, issued and
outstanding, of such classes and series, with or without par value,
described on SCHEDULE 5.1(B). All outstanding shares have been duly
authorized and validly issued and are fully paid and nonassessable. The
shareholders of the Subsidiaries of ACC and the number of shares owned by
each are described on SCHEDULE 5.1(B). There are no outstanding stock
purchase warrants, subscriptions, options, securities, instruments or other
rights of any type or nature whatsoever, which are convertible into,
exchangeable for or otherwise provide for or permit the issuance of capital
stock of ACC or its Subsidiaries, except as described on SCHEDULE 5.1(B).
(c) AUTHORIZATION OF AGREEMENT, LOAN DOCUMENTS AND BORROWING. Each of
ACC and its Subsidiaries has the right, power and authority and has taken
all necessary corporate and other action to authorize the execution,
delivery and performance of this Agreement and each of the other Loan
Documents to which it is a party in accordance with their respective terms.
This Agreement and each of the other Loan Documents have been duly executed
and delivered by the duly authorized officers of ACC and each of its
Subsidiaries party thereto and each such document constitutes the legal,
valid and binding obligation of ACC or its Subsidiary party thereto,
enforceable in accordance with its terms, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar
state or federal debtor relief laws from time to time in effect which
affect the enforcement of creditors' rights in general and the availability
of equitable remedies.
(d) COMPLIANCE OF AGREEMENT, LOAN DOCUMENTS AND BORROWING WITH LAWS,
ETC. The execution, delivery and performance by ACC and its Subsidiaries
of the Loan Documents to which each such Person is a party, in accordance
with their respective terms, the borrowings hereunder and the transactions
contemplated hereby do not and will not, by the passage of time, the giving
of notice or otherwise, (i) except as set forth on SCHEDULE 5.1(D) hereto,
require any Governmental Approval or violate any Applicable Law relating to
ACC or any of its Subsidiaries, (ii) conflict with, result in a breach of
or constitute a default under the articles of incorporation, bylaws or
other organizational documents of ACC or any of its Subsidiaries or any
material indenture, agreement or other instrument to which such Person is a
party or by which any of its properties may be bound or any Governmental
Approval relating to such Person or (iii) result in or require the creation
or imposition of any Lien upon or with respect to any material property now
owned or hereafter acquired by such Person other than Liens arising under
the Loan Documents.
(e) COMPLIANCE WITH LAW; GOVERNMENTAL APPROVALS. Each of ACC and its
Subsidiaries (i) has all Governmental Approvals required by any Applicable
Law for it to conduct its business. Each such Governmental Approval is in
full force and effect, is final and not subject to review on appeal and is
not the subject of any pending or, to the best of its knowledge, threatened
attack by direct or collateral proceeding and (ii) is in compliance with
each Governmental Approval applicable to it and in compliance with all
other Applicable Laws relating to it or any of its respective properties.
(f) TAX RETURNS AND PAYMENTS. Each of ACC and its Subsidiaries has
duly filed or caused to be filed all federal, state, local and other tax
returns required by Applicable Law to be filed, and has paid, or made
adequate provision for the payment of, all federal, state, local and other
taxes, assessments and governmental charges or levies upon it and its
property, income, profits and assets which are due and payable, except
where the payment of such tax is being disputed in good faith and adequate
reserves have been established in accordance with GAAP. No Governmental
Authority has asserted any Lien or other claim against ACC or Subsidiary
thereof with respect to material unpaid taxes which has not been discharged
or resolved or is not being contested in good faith. The charges, accruals
and reserves on the books of ACC and any of its Subsidiaries in respect of
federal, state, local and other taxes for all Fiscal Years and portions
thereof are in the judgment of ACC adequate, and ACC does not anticipate
any additional material taxes or assessments for any of such years.
(g) ENVIRONMENTAL MATTERS. (i) The properties of ACC and its
Subsidiaries do not contain, and to the best knowledge of the Borrowers,
have not previously contained, any Hazardous Materials in amounts or
concentrations which (A) constitute or constituted a violation of, or (B)
could give rise to material liability under, applicable Environmental Laws;
(ii) Such properties and all operations conducted in connection
therewith are in material compliance, and have been in material compliance,
with all applicable Environmental Laws, and to the best knowledge of the
Borrowers, there is no contamination at or under such properties or such
operations in violation of applicable Environmental Laws or which could
materially interfere with the continued operation of such properties or, if
such properties are owned by any such Person, materially impair the fair
saleable value thereof;
(iii) Neither ACC nor any Subsidiary thereof has received any
notice of material violation, alleged violation, non-compliance, liability
or potential liability regarding environmental matters or compliance with
Environmental Laws with regard to any of their properties or the operations
conducted in connection therewith, nor does ACC or any Subsidiary thereof
have knowledge or reason to believe that any such notice will be received
or is being threatened;
(iv) Hazardous Materials have not been transported or disposed of
from the properties of ACC and its Subsidiaries in violation of, or in a
manner or to a location which could give rise to material liability under,
Environmental Laws, nor to the best knowledge of the Borrowers, have any
Hazardous Materials been generated, treated, stored or disposed of at, on
or under any of such properties in material violation of, or in a manner
that could give rise to material liability under, any applicable
Environmental Laws;
(v) No judicial proceedings or governmental or administrative
action is pending, or to the best knowledge of the Borrowers, threatened,
under any Environmental Law to which ACC or any Subsidiary thereof is or
will be named as a party with respect to such properties or operations
conducted in connection therewith, nor are there any consent decrees or
other decrees, consent orders, administrative orders or other orders, or
other administrative or judicial requirements outstanding under any
Environmental Law with respect to such properties or such operations; and
(vi) There has been no release, or to the best knowledge of the
Borrowers, threat of release, of Hazardous Materials at or from such
properties, in violation of or in amounts or in a manner that could give
rise to material liability under Environmental Laws.
(h) ERISA.
(i) Neither ACC nor any ERISA Affiliate maintains or contributes
to, or has any obligation under, any Employee Benefit Plans other than
those identified on SCHEDULE 5.1(H);
(ii) ACC and each ERISA Affiliate is in material compliance with
all applicable provisions of ERISA and the regulations and published
interpretations thereunder with respect to all Employee Benefit Plans
except for any required amendments for which the remedial amendment period
as defined in Section 401(b) of the Code has not yet expired. Each
Employee Benefit Plan that is intended to be qualified under Section 401(a)
of the Code has been determined by the Internal Revenue Service to be so
qualified, and each trust related to such plan has been determined to be
exempt under Section 501(a) of the Code. No liability has been incurred by
ACC or any ERISA Affiliate which remains unsatisfied for any taxes or
penalties with respect to any Employee Benefit Plan or any Multiemployer
Plan;
(iii) No Pension Plan has been terminated, nor has any accumulated
funding deficiency (as defined in Section 412 of the Code) been incurred
(without regard to any waiver granted under Section 412 of the Code), nor
has any funding waiver from the Internal Revenue Service been received or
requested with respect to any Pension Plan, nor has ACC or any ERISA
Affiliate failed to make any contributions or to pay any amounts due and
owing as required by Section 412 of the Code, Section 302 of ERISA or the
terms of any Pension Plan prior to the due dates of such contributions
under Section 412 of the Code or Section 302 of ERISA, nor has there been
any event requiring any disclosure under Section 4041(c)(3)(C) or 4063(a)
of ERISA with respect to any Pension Plan;
(iv) Neither ACC nor any ERISA Affiliate has: (A) engaged in a
nonexempt prohibited transaction described in Section 406 of the ERISA or
Section 4975 of the Code; (B) incurred any liability to the PBGC which
remains outstanding other than the payment of premiums and there are no
premium payments which are due and unpaid; (C) failed to make a required
contribution or payment to a Multiemployer Plan; or (D) failed to make a
required installment or other required payment under Section 412 of the
Code;
(v) No Termination Event has occurred or is reasonably expected
to occur; and
(vi) No material proceeding, claim, lawsuit and/or investigation
is existing or, to the best knowledge of ACC after due inquiry, threatened
concerning or involving any (A) employee welfare benefit plan (as defined
in Section 3(1) of ERISA) currently maintained or contributed to by ACC or
any ERISA Affiliate, (B) Pension Plan or (C) Multiemployer Plan.
(i) MARGIN STOCK. Neither ACC nor any Subsidiary thereof is engaged
principally or as one of its activities in the business of extending credit
for the purpose of "purchasing" or "carrying" any "margin stock" (as each
such term is defined or used in Regulations G and U of the Board of
Governors of the Federal Reserve System). No part of the proceeds of any
of the Loans will be used for purchasing or carrying margin stock or for
any purpose which violates, or which would be inconsistent with, the
provisions of Regulation G, T, U or X of such Board of Governors.
(j) GOVERNMENT REGULATION. Neither ACC nor any Subsidiary thereof is
an "investment company" or a company "controlled" by an "investment
company" (as each such term is defined or used in the Investment Company
Act of 1940, as amended) and neither ACC nor any Subsidiary thereof is, or
after giving effect to any Loan will be a "Holding Company" or a
"Subsidiary Company" of a "Holding Company" or an "Affiliate" of a "Holding
Company" within the respective meanings of each of the quoted terms of the
Public Utility Holding Company Act of 1935 as amended, or any other
Applicable Law which materially limits its ability to incur or consummate
the transactions contemplated hereby.
(k) PATENTS, COPYRIGHTS AND TRADEMARKS. Each of ACC and its
Subsidiaries owns or possesses all patent, copyright and trademark rights
which are required to conduct its business without infringing upon any
validly asserted rights of others. No event has occurred which permits, or
after notice or lapse of time or both would permit, the revocation or
termination of any such rights. Neither ACC nor any of its Subsidiaries
have been threatened with any litigation regarding patents, copyrights or
trademarks that would present a material impediment to the business of any
such Person.
(l) MATERIAL CONTRACTS. SCHEDULE 5.1(L) sets forth a complete and
accurate list of all Material Contracts of ACC and its Subsidiaries in
effect as of the Closing Date not listed on any other Schedule hereto;
other than as set forth in SCHEDULE 5.1(L), each of ACC and any Subsidiary
thereof party thereto has performed all of its obligations under such
Material Contracts and, to the best knowledge of the Borrowers, each other
party thereto is in compliance with each such Material Contract, and each
such Material Contract is, and after giving effect to the consummation of
the transactions contemplated by the Loan Documents will be, in full force
and effect in accordance with the terms thereof. ACC and its Subsidiaries
have delivered to the Administrative Agent a true and complete copy of each
Material Contract required to be listed on SCHEDULE 5.1(M).
(m) EMPLOYEE RELATIONS. Each of ACC and its Subsidiaries is not,
except as set forth on SCHEDULE 5.1(M), party to any collective bargaining
agreement nor has any labor union been recognized as the representative of
its employees. ACC knows of no pending, threatened or contemplated
strikes, work stoppage or other collective labor disputes involving its
employees or those of its Subsidiaries.
(n) BURDENSOME PROVISIONS. Neither ACC nor any Subsidiary thereof is
a party to any indenture, agreement, lease or other instrument, or subject
to any corporate or partnership restriction, Governmental Approval or
Applicable Law which is so unusual or burdensome as in the foreseeable
future could be reasonably expected to have a Material Adverse Effect. ACC
and its Subsidiaries do not presently anticipate that future expenditures
needed to meet the provisions of any statutes, orders, rules or regulations
of a Governmental Authority will be so burdensome as to have a Material
Adverse Effect.
(o) FINANCIAL STATEMENTS. The (i) Consolidated balance sheets of ACC
and its Subsidiaries as of December 31, 1994, and the related statements of
income and retained earnings and cash flows for the Fiscal Year then ended
and (ii) unaudited Consolidated balance sheet of ACC and its Subsidiaries
as of March 31, 1995, and related unaudited interim statements of income
and cash flows, copies of which have been furnished to the Administrative
Agent and each Lender, are complete and correct and fairly present the
assets, liabilities and financial position of ACC and its Subsidiaries, as
at such dates, and the results of the operations and changes of financial
position for the periods then ended. All such financial statements,
including the related schedules and notes thereto, have been prepared in
accordance with GAAP. ACC and its Subsidiaries have no material Debt,
obligation or other unusual forward or long-term commitment which is not
disclosed in the foregoing financial statements or in the notes thereto.
(p) NO MATERIAL ADVERSE CHANGE. Since December 31, 1994, there has
been no material adverse change in the condition (financial or otherwise),
operations, properties, business or prospects of the Borrowers and their
Subsidiaries, including any event or condition that has had or is
reasonably likely to have a Material Adverse Effect.
(q) SOLVENCY. As of the Closing Date and after giving effect to each
Loan made hereunder, ACC and its Subsidiaries taken as a whole will be
Solvent.
(r) TITLES TO PROPERTIES. Each of ACC and its Subsidiaries has such
title to the real property owned or leased by it as is necessary or
desirable to the conduct of its business and good and marketable title to
all of its personal property sufficient to carry on its business as
presently conducted, except such property as has been disposed of by ACC or
its Subsidiaries subsequent to such date which dispositions have been in
the ordinary course of business or as otherwise expressly permitted
hereunder. SCHEDULE 5.1(R) hereto sets forth the address of all real
property owned or leased by a Borrower and its Subsidiaries (and if leased,
the record owner thereof).
(s) LIENS. None of the properties and assets of ACC or any
Subsidiary thereof is subject to any Lien, except in each case Liens
permitted pursuant to Section 9.3. No financing statement under the
Uniform Commercial Code of any state which names ACC or any Subsidiary
thereof or any of their respective trade names or divisions as debtor and
which has not been terminated, has been filed in any state or other
jurisdiction and neither ACC nor any Subsidiary thereof has signed any such
financing statement or any security agreement authorizing any secured party
thereunder to file any such financing statement, except to perfect those
Liens permitted by Section 9.3 hereof.
(t) DEBT AND CONTINGENT OBLIGATIONS. SCHEDULE 5.1(T) is a complete
and correct listing of all Debt and Contingent Obligations of ACC and its
Subsidiaries in excess of $250,000. ACC and its Subsidiaries have
performed and are in material compliance with all of the terms of such Debt
and Contingent Obligations and all instruments and agreements relating
thereto, and no default or event of default, or event or condition which
with notice or lapse of time or both would constitute such a default or
event of default on the part of ACC or its Subsidiaries exists with respect
to any such Debt or Contingent Obligation.
(u) LITIGATION. Except as set forth on SCHEDULE 5.1(U), there are no
actions, suits or proceedings pending nor, to the knowledge of ACC,
threatened against or in any other way relating adversely to or affecting
ACC or any Subsidiary thereof or any of their respective properties in any
court or before any arbitrator of any kind or before or by any Governmental
Authority.
(v) COMMUNICATIONS REGULATORY MATTERS.
(i) Each Network Agreement has been duly executed and delivered
by the respective parties thereto, is in full force and effect and neither
the Borrowers, any Subsidiary thereof nor, to the best knowledge of the
Borrowers, any of the other parties thereto, is in default of any of the
provisions thereof in any material respect.
(ii) SCHEDULE 5.1(V) hereto sets forth, as of the date hereof, a
true and complete list of the following information for each Communications
License or PUC Authorization issued to ACC or any its Subsidiaries: (A)
for all Communications Licenses, the name of the licensee, the type of
service and the expiration dates; and (B) for each PUC Authorization, the
geographic area covered by such PUC Authorization, the services that may be
provided thereunder and the expiration date, if any.
(iii) The Communications Licenses and PUC Authorizations specified
on SCHEDULE 5.1(V) hereto are valid and in full force and effect without
conditions except for such conditions as are generally applicable to
holders of such Communications Licenses and PUC Authorizations. No event
has occurred and is continuing which could reasonably be expected to (A)
result in the imposition of a material forfeiture or the revocation,
termination or adverse modification of any such Communications License or
PUC Authorization or (B) materially and adversely affect any rights of ACC
or any of its Subsidiaries thereunder. ACC has no reason to believe and
has no knowledge that Communications Licenses and PUC Authorizations will
not be renewed in the ordinary course.
(iv) All of the material properties, equipment and systems owned,
leased or managed by ACC and its Subsidiaries are, and (to the best
knowledge of ACC) all such property, equipment and systems to be acquired
or added in connection with any contemplated system expansion or
construction will be, in good repair, working order and condition
(reasonable wear and tear excepted) and are and will be in compliance with
all terms and conditions of the Communications Licenses and PUC
Authorizations and all standards or rules imposed by any Governmental
Authority or as imposed under any agreements with telephone companies and
customers.
(v) ACC and each of its Subsidiaries have paid all franchise,
license or other fees and charges which have become due pursuant to any
Governmental Approval in respect of its business and has made appropriate
provision as is required by GAAP for any such fees and charges which have
accrued.
(w) ABSENCE OF DEFAULTS. No event has occurred and is continuing
which constitutes a Default or an Event of Default, or which constitutes,
or which with the passage of time or giving of notice or both would
constitute, a default or event of default by ACC or any Subsidiary thereof
under any Material Contract or judgment, decree or order to which ACC or
its Subsidiaries is a party or by which ACC or its Subsidiaries or any of
their respective properties may be bound or which would require ACC or its
Subsidiaries to make any payment thereunder prior to the scheduled maturity
date therefor.
(x) SENIOR DEBT. All of the Obligations of ACC and its Subsidiaries
under the Loan Documents are entitled to the benefits of the subordination
provisions of the documents evidencing any Subordinated Debt. ACC
acknowledges that the Agents and Lenders are entering into this Agreement
and the Lenders are making Loans hereunder in reliance upon such
subordination provisions.
(y) ACCURACY AND COMPLETENESS OF INFORMATION. All written
information, reports and other papers and data produced by or on behalf of
ACC or any Subsidiary thereof and furnished to the Lenders were, at the
time the same were so furnished, complete and correct in all material
respects. No document furnished or written statement made to the Agents or
the Lenders by ACC or any Subsidiary thereof in connection with the
negotiation, preparation or execution of this Agreement or any of the Loan
Documents contains or will contain any untrue statement of a fact material
to the creditworthiness of ACC or its Subsidiaries or omits or will omit to
state a material fact necessary in order to make the statements contained
therein not misleading. ACC is not aware of any facts which it has not
disclosed in writing to the Agents having a Material Adverse Effect, or
insofar as ACC can now foresee, could reasonably be expected to have a
Material Adverse Effect.
SECTION 5.2 SURVIVAL OF REPRESENTATIONS AND WARRANTIES, ETC. All
representations and warranties set forth in this Article V and all
representations and warranties contained in any certificate, or any of the
Loan Documents (including but not limited to any such representation or
warranty made in or in connection with any amendment thereto) shall
constitute representations and warranties made under this Agreement. All
representations and warranties made under this Agreement shall be made or
deemed to be made at and as of the Closing Date, shall survive the Closing
Date and shall not be waived by the execution and delivery of this
Agreement, any investigation made by or on behalf of the Lenders or any
borrowing hereunder.
ARTICLE VI
FINANCIAL INFORMATION AND NOTICES
Until all the Obligations have been finally and indefeasibly paid and
satisfied in full and the Commitments terminated, unless consent has been
obtained in the manner set forth in Section 13.11 hereof, the Borrowers
will furnish or cause to be furnished to the Administrative Agent at the
Administrative Agent's Office (with copies for each Managing Agent) and the
Administrative Agent at its address set forth in Section 13.1 hereof, or
such other office as may be designated by such Agent from time to time:
SECTION 6.1 FINANCIAL STATEMENTS AND PROJECTIONS.
(a) QUARTERLY FINANCIAL STATEMENTS. As soon as practicable and in
any event within forty-five (45) days after the end of each fiscal quarter,
an unaudited Consolidated and consolidating balance sheet of ACC and its
Subsidiaries as of the close of such fiscal quarter and unaudited
Consolidated and consolidating statements of income, retained earnings and
cash flows for the fiscal quarter then ended and that portion of the Fiscal
Year then ended, including the notes thereto, all in reasonable detail
setting forth in comparative form the corresponding figures for the
preceding Fiscal Year and prepared by ACC in accordance with GAAP, and
certified by the chief financial officer of ACC to present fairly in all
material respects the financial condition of ACC and its Subsidiaries as of
their respective dates and the results of operations of ACC and its
Subsidiaries for the respective periods then ended, subject to normal year
end adjustments. The Lenders agree that so long as ACC has a class of
equity securities registered under section 12 of the Securities Exchange
Act of 1934, as amended, the Lenders will accept the report on Form 10-Q
filed by ACC with the Securities and Exchange Commission.
(b) ANNUAL FINANCIAL STATEMENTS. As soon as practicable and in any
event within one hundred and twenty (120) days after the end of each Fiscal
Year, an unaudited consolidating balance sheet and income statement of ACC
and its Subsidiaries and an audited Consolidated balance sheet of ACC and
its Subsidiaries as of the close of such Fiscal Year and audited
Consolidated statements of income, retained earnings and cash flows for the
Fiscal Year then ended, including the notes thereto, all in reasonable
detail setting forth in comparative form the corresponding figures for the
preceding Fiscal Year and audited by an independent certified public
accounting firm of nationally recognized standing in accordance with GAAP,
and accompanied by a report thereon by such certified public accountants
that is not qualified with respect to scope limitations imposed by ACC or
any of its Subsidiaries or with respect to accounting principles followed
by ACC or any of its Subsidiaries not in accordance with GAAP. The Lenders
agree that so long as ACC has a class of equity securities registered under
section 12 of the Securities Exchange Act of 1934, as amended, the Lenders
will accept the report on Form 10-K filed by ACC with the Securities and
Exchange Commission.
(c) ANNUAL BUSINESS PLAN AND FINANCIAL PROJECTIONS. As soon as
practicable and in any event within thirty (30) days prior to the beginning
of each Fiscal Year, a business plan of ACC and its Subsidiaries for the
ensuing four fiscal quarters, such plan to include, on a quarterly basis,
the following: a quarterly operating and capital budget, a projected
income statement, statement of cash flows and balance sheet, each prepared
on a basis consistent with GAAP, and a report containing management's
discussion and analysis of such projections (such business plan and
projections, the "Projections"), accompanied by a certificate from the
chief financial officer of ACC to the effect that, to the best of such
officer's knowledge, the Projections are good faith estimates of the
anticipated financial condition and operations of ACC and its Subsidiaries
for such four quarter period based on the then current business plan.
SECTION 6.2 OFFICER'S COMPLIANCE CERTIFICATE. At each time financial
statements are delivered pursuant to Sections 6.1(a) or (b), a certificate
of the chief executive officer or chief financial officer of ACC in the
form of EXHIBIT D attached hereto (an "Officer's Compliance Certificate"):
(a) stating that such officer has reviewed such financial statements
and such statements fairly present the financial condition of the Borrowers
as of the dates indicated and the results of their operations and cash
flows for the periods indicated;
(b) stating that to such officer's knowledge, based on a reasonable
examination, no Default or Event of Default exists, or, if such is not the
case, specifying such Default or Event of Default and its nature, when it
occurred, whether it is continuing and the steps being taken by the
Borrowers with respect to such Default or Event of Default; and
(c) setting forth as at the end of such fiscal quarter or Fiscal
Year, as the case may be, the calculations required to establish whether or
not ACC and its Subsidiaries were in compliance with the financial
covenants set forth in Article VIII hereof as at the end of each respective
period, the calculation of Excess Cash Flow for such Fiscal Year and the
calculation of the Applicable Margin pursuant to Section 3.1(c) as at the
end of each respective period.
SECTION 6.3 ACCOUNTANTS' CERTIFICATE. At each time financial
statements are delivered pursuant to Section 6.1(b), a certificate of the
independent public accountants certifying such financial statements
addressed to the Managing Agents for the benefit of the Lenders stating
that in making the examination necessary for the certification of such
financial statements, they obtained no knowledge of any Default or Event of
Default or, if such is not the case, specifying such Default or Event of
Default and its nature and period of existence.
SECTION 6.4 OTHER REPORTS.
(a) Promptly upon receipt thereof, copies of any management report
and any management responses thereto submitted to any Borrower or its Board
of Directors by its independent public accountants in connection with their
auditing function;
(b) Within ten (10) Business Days after the receipt by ACC or any of
its Subsidiaries of notice that any Communications License or material PUC
Authorization has been lost or canceled, copies of any such notice
accompanied by a report describing the measures undertaken by ACC or any of
its Subsidiaries to prevent such loss or cancellation (and the anticipated
impact, if any, that such loss or cancellation will have upon the business
of ACC and its Subsidiaries); and
(c) Such other information regarding the operations, business affairs
and financial condition of ACC or any of its Subsidiaries as the Agents or
any Lender may reasonably request.
SECTION 6.5 NOTICE OF LITIGATION AND OTHER MATTERS. Prompt (but in
no event later than three (3) days after an officer of any Borrower obtains
knowledge thereof) telephonic and written notice of:
(a) the commencement of all material proceedings and investigations
by or before any Governmental Authority and all actions and proceedings in
any court or before any arbitrator against or involving ACC or any
Subsidiary thereof or any of their respective properties, assets or
businesses;
(b) any notice of any material violation received by ACC or any
Subsidiary thereof from any Governmental Authority including, without
limitation, any notice of a material violation of Environmental Laws;
(c) any labor controversy that has resulted in, or could reasonably
be expected to result in, a strike or other work action against ACC or any
Subsidiary thereof;
(d) any attachment, judgment, lien, levy or order exceeding $250,000
that may be assessed against or threatened against ACC or any Subsidiary
thereof;
(e) any Default or Event of Default, or any event which constitutes
or which with the passage of time or giving of notice or both would
constitute a default or event of default under any Subordinated Debt or
other Material Contract to which ACC or any of its Subsidiaries is a party
or by which ACC or any Subsidiary thereof or any of their respective
properties may be bound;
(f) (i) the failure of ACC or any ERISA Affiliate to make a required
installment or payment under Section 302 of ERISA or Section 412 of the
Code by the due date, (ii) any Termination Event or "prohibited
transaction", as such term is defined in Section 406 of ERISA or Section
4975 of the Code, in connection with any Employee Benefit Plan or any trust
created thereunder, along with a description of the nature thereof, what
action ACC has taken, is taking or proposes to take with respect thereto
and, when known, any action taken or threatened by the Internal Revenue
Service, the Department of Labor or the PBGC with respect thereto, (iii)
all notices received by ACC or any ERISA Affiliate of the PBGC's intent to
terminate any Pension Plan or to have a trustee appointed to administer any
Pension Plan, (iv) all notices received by ACC or any ERISA Affiliate from
a Multiemployer Plan sponsor concerning the imposition or amount of
withdrawal liability pursuant to Section 4202 of ERISA and (v) any Borrower
obtaining knowledge or reason to know that ACC or any ERISA Affiliate has
filed or intends to file a notice of intent to terminate any Pension Plan
under a distress termination within the meaning of Section 4041(c) of
ERISA;
(g) the enactment or promulgation after the date hereof of any
federal, state or local statute, regulation or ordinance or judicial or
administrative decision or order (or, to the extent that any Borrower has
knowledge thereof, any such proposed statute, regulation, ordinance,
decision or order, whether by the introduction of legislation or the
commencement of rulemaking or similar proceedings or otherwise) having a
material effect or relating to the operation of the Network Facilities by
ACC or any of its Subsidiaries (including, without limitation, any
statutes, decisions or orders affecting long distance telecommunication
resellers generally and not directed against ACC or any of its Subsidiaries
specifically) which have been issued or adopted (or which have been
proposed) and which could reasonably be expected to have a Material Adverse
Effect; or
(h) any event which makes any of the representations set forth in
Section 5.1 inaccurate in any material respect.
SECTION 6.6 ACCURACY OF INFORMATION. All written information,
reports, statements and other papers and data furnished by or on behalf of
any Borrower to any Agent or Lender whether pursuant to this Article VI or
any other provision of this Agreement, or any of the Security Documents,
shall be, at the time the same is so furnished, complete and correct in all
material respects based on the applicable Borrower's knowledge thereof.
SECTION 6.7 REVISIONS OR UPDATES TO SCHEDULES. Should any of the
information or disclosures provided on any of the Schedules originally
attached hereto become outdated or incorrect in any material respect during
any fiscal quarter, the Borrowers shall provide promptly to the
Administrative Agent (with copies for each Managing Agent) such revisions
or updates to such Schedule(s) as may be necessary or appropriate to update
or correct such Schedule(s) within forty-five (45) days after the end of
such fiscal quarter; PROVIDED that subsequent disclosures shall not
constitute a cure or waiver of any Default or Event of Default resulting
from the matters disclosed.
ARTICLE VII
AFFIRMATIVE COVENANTS
Until all of the Obligations have been finally and indefeasibly paid
and satisfied in full and the Commitments terminated, unless consent has
been obtained in the manner provided for in Section 13.11, each Borrower
will, and will cause each of its Subsidiaries to:
SECTION 7.1 PRESERVATION OF CORPORATE EXISTENCE AND RELATED MATTERS.
Except as permitted by Section 9.5, preserve and maintain its separate
corporate existence and all rights, franchises, licenses and privileges
necessary to the conduct of its business; and qualify and remain qualified
as a foreign corporation and authorized to do business in each jurisdiction
where its business requires such qualification and authorization.
SECTION 7.2 MAINTENANCE OF PROPERTY. Protect and preserve all
properties useful in and material to its business, including material
copyrights, patents, trade names and trademarks; maintain in good working
order and condition all buildings (reasonable wear and tear excepted),
equipment and other tangible real and personal property; and from time to
time make or cause to be made all renewals, replacements and additions to
such property necessary in the reasonable judgement of the Borrowers for
the conduct of its business, so that the business carried on in connection
therewith may be properly and advantageously conducted at all times.
SECTION 7.3 INSURANCE. In addition to the requirements set forth in
the Security Documents, maintain insurance with financially sound and
reputable insurance companies against such risks and in such amounts as are
customarily maintained by similar businesses and as may be required by
Applicable Law, and on the Closing Date and from time to time thereafter
deliver to the Administrative Agent upon its request a detailed list of the
insurance then in effect, stating the names of the insurance companies, the
amounts and rates of the insurance, the dates of the expiration thereof and
the properties and risks covered thereby.
SECTION 7.4 ACCOUNTING METHODS AND FINANCIAL RECORDS. Maintain a
system of accounting, and keep such books, records and accounts (which
shall be true and complete in all material respects) as may be required or
as may be necessary to permit the preparation of financial statements in
accordance with GAAP (or generally accepted accounting principles as in
effect in Canada and the United Kingdom with respect to the U.K. Borrowers)
and in compliance with the regulations of any Governmental Authority having
jurisdiction over it or any of its properties.
SECTION 7.5 PAYMENT AND PERFORMANCE OF OBLIGATIONS. Pay and perform
all Obligations under this Agreement and the other Loan Documents and pay
or perform (a) all taxes, assessments and other governmental charges that
may be levied or assessed upon it or any of its property, and (b) all other
indebtedness, obligations and liabilities in accordance with customary
trade practices; PROVIDED, that ACC or such Subsidiary may contest any item
described in clauses (a) and (b) hereof in good faith so long as adequate
reserves are maintained with respect thereto in accordance with GAAP.
SECTION 7.6 COMPLIANCE WITH LAWS AND APPROVALS. Observe and remain
in material compliance with all Applicable Laws and maintain in full force
and effect all material Governmental Approvals, in each case applicable or
necessary to the conduct of its business.
SECTION 7.7 ENVIRONMENTAL LAWS. In addition to and without limiting
the generality of Section 7.6, (a) comply in all material respects with,
and use its best efforts to ensure such compliance by all of its tenants
and subtenants, if any, with, all applicable Environmental Laws and obtain
and comply with and maintain, and use its best efforts to ensure that all
of its tenants and subtenants obtain and comply with and maintain, any and
all licenses, approvals, notifications, registrations or permits required
by applicable Environmental Laws; (b) conduct and complete all
investigations, studies, sampling and testing, and all remedial, removal
and other actions required under Environmental Laws, and timely comply with
all lawful orders and directives of any Governmental Authority regarding
Environmental Laws; and (c) defend, indemnify and hold harmless the Agents
and the Lenders, and their respective parents, Subsidiaries, Affiliates,
employees, agents, officers and directors, from and against any claims,
demands, penalties, fines, liabilities, settlements, damages, costs and
expenses of whatever kind or nature known or unknown, contingent or
otherwise, arising out of, or in any way relating to the violation of,
noncompliance with or liability under any Environmental Laws applicable to
the operations of ACC or such Subsidiary, or any orders, requirements or
demands of Governmental Authorities related thereto, including, without
limitation, reasonable attorney's and consultant's fees, investigation and
laboratory fees, response costs, court costs and litigation expenses,
except to the extent that any of the foregoing arise out of or relate to
the gross negligence or willful misconduct of the party seeking
indemnification therefor.
SECTION 7.8 COMPLIANCE WITH ERISA. If applicable thereto, in
addition to and without limiting the generality of Section 7.6, make timely
payment of contributions required to meet the minimum funding standards set
forth in ERISA with respect to any Employee Benefit Plan; not take any
action or fail to take action the result of which could be a liability to
the PBGC or to a Multiemployer Plan; not participate in any prohibited
transaction that could result in any civil penalty under ERISA or tax under
the Code; furnish to the Administrative Agent upon the Administrative
Agent's request such additional information about any Employee Benefit Plan
as may be reasonably requested by the Administrative Agent; and operate
each Employee Benefit Plan in such a manner that will not incur any tax
liability under Section 4980B of the Code or any liability to any qualified
beneficiary as defined in Section 4980B of the Code.
SECTION 7.9 COMPLIANCE WITH AGREEMENTS. Comply in all material
respects with each term, condition and provision of all leases, agreements
and other instruments entered into in the conduct of its business
including, without limitation, any Material Contract; PROVIDED, that ACC or
such Subsidiary may contest any such lease, agreement or other instrument
in good faith so long as adequate reserves are maintained in accordance
with GAAP.
SECTION 7.10 CONDUCT OF BUSINESS. Engage only in businesses in
substantially the same fields as the businesses conducted on the Closing
Date and, to the extent permitted by Section 9.4(c), in lines of business
reasonably related thereto.
SECTION 7.11 VISITS AND INSPECTIONS. Upon reasonable notice
therefrom and during normal business hours, permit representatives of any
of the Agents, from time to time, to visit and inspect its properties;
inspect, audit and make extracts from its books, records and files,
including, but not limited to, management letters prepared by independent
accountants; and discuss with its principal officers, and its independent
accountants, its business, assets, liabilities, financial condition,
results of operations and business prospects.
SECTION 7.12 MATERIAL SUBSIDIARIES; ADDITIONAL COLLATERAL. (a) Upon
the creation of any Material Subsidiary permitted by this Agreement, cause
to be executed and delivered to the Administrative Agent: (i) a Joinder
Agreement and the documents referred to therein, (ii) the supplement
substantially in the form attached to the Security Agreement, (iii) the
supplement substantially in the form attached to the applicable Pledge
Agreement, or if the owner of such Subsidiary is not ACC or ACC National, a
pledge agreement substantially in the form of the Pledge Agreement executed
by such owner with such modifications thereto as requested by the Required
Lenders, (iv) a Mortgage and Landlord Consent with respect to any real
property owned or leased by such Subsidiary if reasonably requested by the
Required Lenders, (v) if such Material Subsidiary is a Subsidiary of a
Canadian Subsidiary, such joinder agreements as reasonably requested by the
Required Lenders in order that such Subsidiary become a party to the
Canadian Note Documents, and if such Material Subsidiary is a Subsidiary of
ACC U.K. or a Canadian Subsidiary, supplements to the Security Documents
executed by such Borrowers or additional documents substantially in the
form of such Security Documents, in each case as requested by the Required
Lenders, (vi) such other documents reasonably requested by the Required
Lenders consistent with the terms of this Agreement which provide that such
Subsidiary shall become a Borrower bound by all of the terms, covenants and
agreements contained in the Loan Documents and that the assets of such
Material Subsidiary shall become Collateral for the Obligations and (vii)
such other documents as the Required Lenders shall reasonably request,
including without limitation, officers' certificates, financial statements,
opinions of counsel, board resolutions, charter documents, certificates of
existence and authority to do business and any other closing certificates
and documents described in Section 4.2.
(b) Promptly upon receipt thereof, ACC National shall deliver to the
Administrative Agent copies of each Governmental Approval required in
connection with the pledge by ACC National of the capital stock of ACC
Mass. under the ACC National Pledge Agreement.
(c) ACC shall, and cause its Material Subsidiaries to, promptly
deliver from time to time such additional Security Documents to the
Administrative Agent upon the request of the Required Lenders with respect
to any assets of any such Person not subject to an existing Lien in favor
of the Administrative Agent for the benefit of the Lenders.
SECTION 7.13 HEDGING AGREEMENT. (a) Not later than thirty (30) days
after the date hereof, cause the Borrowers to execute Hedging Agreements
with respect to interest rate exposure under the Credit Agreement with
durations of at least two years and an aggregate notional principal amount
thereunder equal to at least $10,000,000 at interest rates not to exceed
two percent (2%) over the then current three month LIBOR Rate at the time
of execution of such Hedging Agreements with respect to the applicable
Permitted Currency and otherwise in form and substance reasonably
satisfactory to the Managing Agents, (b) not later than one-hundred and
eighty (180) days after the date hereof execute additional Hedging
Agreements in the form described in clause (a) such that the notional
principal amount covered by all such Hedging Agreements equals fifty
percent (50) of the Aggregate Commitment and (c) maintain at all times
Hedging Agreements with respect to currency risk in form and substance
reasonably satisfactory to the Managing Agents.
SECTION 7.14 FURTHER ASSURANCES. Make, execute and deliver all such
additional and further acts, things, deeds and instruments as any Agent or
Lender may reasonably require to document and consummate the transactions
contemplated hereby and to vest completely in and insure each Agent and the
Lenders their respective rights under this Agreement, the Notes, the
Letters of Credit and the other Loan Documents.
ARTICLE VIII
FINANCIAL COVENANTS
Until all of the Obligations have been finally and indefeasibly paid
and satisfied in full and the Commitments terminated, unless consent has
been obtained in the manner set forth in Section 13.11 hereof, ACC and its
Subsidiaries on a Consolidated basis will not:
SECTION 8.1 MAXIMUM LEVERAGE RATIO. As of any date of determination,
permit the ratio (the "Leverage Ratio") of (a) Total Debt as of such date
to (b), for any calculation period during calendar year 1995, Operating
Cash flow for the two (2) consecutive fiscal quarters ending on or
immediately prior to such date TIMES two (2), and for any calculation
period thereafter, Operating Cash Flow for the period of four (4)
consecutive fiscal quarters ending on or immediately prior to such date, to
exceed the corresponding ratio set forth below:
PERIOD RATIO
Closing Date through
September 30, 1995 3.75 to 1.00
October 1, 1995 through
June 30, 1996 3.50 to 1.00
July 1, 1996 through
December 31, 1996 2.75 to 1.00
January 1, 1997 and
thereafter 2.00 to 1.00;
SECTION 8.2 MINIMUM PRO FORMA DEBT SERVICE COVERAGE RATIO. As of any
date of determination, permit the ratio of (a), for any calculation period
during calendar year 1995, Operating Cash Flow for the two (2) consecutive
fiscal quarters ending on or immediately prior to such date TIMES two (2),
and for any calculation period thereafter, Operating Cash Flow for the
period of four (4) consecutive fiscal quarters ending on or immediately
prior to such date, to (b) Pro Forma Debt Service on such date, to be less
than the corresponding ratio set forth below:
PERIOD RATIO
Closing Date through
September 30, 1995 1.75 to 1.00
October 1, 1995 through
December 31, 1995 2.00 to 1.00
January 1, 1996 and
thereafter 2.50 to 1.00
SECTION 8.3 FIXED CHARGE COVERAGE RATIO. As of any date of
determination, permit the ratio of (a) (i), for any calculation period
during calendar year 1995, Operating Cash Flow for the two (2) consecutive
fiscal quarters ending on or immediately prior to such date TIMES two (2),
and for any calculation period thereafter, Operating Cash Flow for the
period of four (4) consecutive fiscal quarters ending on or immediately
prior to such date to (b) Fixed Charges for such period, to be less than
the corresponding ratio set forth below:
PERIOD RATIO
Closing date through
September 30, 1995 .30 to 1.0
October 1, 1995 through
June 29, 1996 .70 to 1.0
June 30, 1996 through
September 29, 1996 1.00 to 1.0
September 30, 1996 and
thereafter 1.15 to 1.0
SECTION 8.4 MINIMUM NET WORTH. Permit Consolidated Net Worth at any
time to be less than (a) $21,500,000 PLUS (b) fifty percent (50%) of
Consolidated Net Income of ACC and its Subsidiaries (LESS total debits for
such period with respect to accrued and unpaid (i) interest payments
recorded by ACC for the Fleet Venture Notes and (ii) dividends recorded by
ACC for the Preferred Stock, not to exceed $1,200,000 in the aggregate) as
of each fiscal quarter end occurring after the Closing Date PLUS (c) one
hundred percent (100%) of the aggregate Net Cash Proceeds of any offering
of capital stock of ACC or any of its Wholly-Owned Subsidiaries received
thereby after the Closing Date. For the purposes of this Section 8.4, the
minimum required Consolidated Net Worth (i) shall be adjusted in a manner
satisfactory to the Managing Agents for any payment required under the
Contingent Interest Agreement and (ii) shall not be reduced if Consolidated
Net Income as of any fiscal quarter end is less than zero.
ARTICLE IX
NEGATIVE COVENANTS
Until all of the Obligations have been finally and indefeasibly paid
and satisfied in full and the Commitments terminated, unless consent has
been obtained in the manner set forth in Section 13.11 hereof, ACC will not
and will not permit any of its Subsidiaries to:
SECTION 9.1 LIMITATIONS ON DEBT. Create, incur, assume or suffer to
exist any Debt except (a) the Obligations, (b) Debt incurred in connection
with a Hedging Agreement with a counterparty and upon terms and conditions
reasonably satisfactory to the Managing Agents, (c) Subordinated Debt, the
Net Cash Proceeds of which are utilized to repay the Obligations and, with
respect to any such Net Cash Proceeds received after June 30, 1997,
permanently reduce the Aggregate Commitment by the amount of such Net Cash
Proceeds, (d) existing Debt set forth on SCHEDULE 5.1(T) and the renewal
and refinancing (but not the increase) thereof, (e) Debt consisting of
Contingent Obligations permitted by Section 9.2, (f) Debt of ACC and its
Subsidiaries incurred in connection with Capitalized Leases, (g) purchase
money Debt of ACC and its Subsidiaries and (h) unsecured Debt of ACC and
its Subsidiaries; PROVIDED, that (i) the aggregate amount of the Debt
permitted pursuant to clauses (f), (g) and (h) PLUS the aggregate amount of
Debt constituting Contingent Obligations permitted by Sections 9.2(c), (d)
and (e) shall not at any time exceed $10,000,000 and (ii) no Subsidiary of
ACC shall be a party to any agreement which shall restrict, limit or
otherwise encumber (by covenant or otherwise) the ability of such
Subsidiary to make any payment to ACC, in the form of dividends,
intercompany advances or otherwise.
SECTION 9.2 LIMITATIONS ON CONTINGENT OBLIGATIONS. Create, incur,
assume or suffer to exist any Contingent Obligations except (a) Contingent
Obligations in favor of the Administrative Agent for the benefit of the
Agents and the Lenders, (b) Contingent Obligations in respect of Network
Agreements and Network Facilities incurred in the ordinary course of
business, (c) Contingent Obligations to secure payment or performance of
customer service contracts incurred in the ordinary course of business, (d)
Contingent Obligations incurred as a general or joint venture partner in
connection with any investment in a partnership or joint venture permitted
pursuant to Section 10.4 and (e) Contingent Obligations not covered by
clauses (b), (c) or (d) of this Section; PROVIDED, that the aggregate
principal amount at any time outstanding of all Contingent Obligations
permitted by Sections 9.2(c), (d) and (e) PLUS the aggregate outstanding
principal amount of all Debt outstanding under clauses (f), (g) and (h) of
Section 9.1 shall not exceed $10,000,000.
SECTION 9.3 LIMITATIONS ON LIENS. Create, incur, assume or suffer to
exist, any Lien on or with respect to any of its assets or properties
(including shares of capital stock), real or personal, whether now owned or
hereafter acquired, except:
(a) Liens for taxes, assessments and other governmental charges or
levies (excluding any Lien imposed pursuant to any of the provisions of
ERISA or Environmental Laws) not yet due or as to which the period of grace
(not to exceed thirty (30) days), if any, related thereto has not expired
or which are being contested in good faith and by appropriate proceedings
if adequate reserves are maintained to the extent required by GAAP;
(b) the claims of materialmen, mechanics, carriers, warehousemen,
processors or landlords for labor, materials, supplies or rentals incurred
in the ordinary course of business, (i) which are not overdue for a period
of more than thirty (30) days or (ii) which are being contested in good
faith and by appropriate proceedings;
(c) Liens consisting of deposits or pledges made in the ordinary
course of business in connection with, or to secure payment of, obligations
under workers' compensation, unemployment insurance or similar legislation
or obligations (not to exceed $2,000,000) under customer service contracts;
(d) Liens constituting encumbrances in the nature of zoning
restrictions, easements and rights or restrictions of record on the use of
real property, which in the aggregate are not substantial in amount and
which do not, in any case, materially detract from the value of such
property or impair the use thereof in the ordinary conduct of business;
(e) Liens of the Administrative Agent for the benefit of the Agents
and the Lenders;
(f) Existing liens described on SCHEDULE 9.3;
(g) Liens securing Debt permitted under Section 9.1(f); and
(h) Liens securing Debt permitted under Section 9.1(g); PROVIDED that
(i) such Liens shall be created substantially simultaneously with the
acquisition of the related Capital Asset, (ii) such Liens do not at any
time encumber any property other than the property financed by such Debt
and (iii) the principal amount of Debt secured by any such Lien shall at no
time exceed 100% of the original purchase price of such property at the
time it was acquired.
SECTION 9.4 LIMITATIONS ON LOANS, ADVANCES, INVESTMENTS AND
ACQUISITIONS. Purchase, own, invest in or otherwise acquire, directly or
indirectly, any capital stock, interests in any partnership or joint
venture, evidence of Debt or other obligation or security, substantially
all or a material portion of the business or assets of any other Person or
any other investment or interest whatsoever in any other Person; or make or
permit to exist, directly or indirectly, any loans, advances or extensions
of credit to, or any investment in cash or by delivery of property in, any
Person; or enter into, directly or indirectly, any commitment or option in
respect of the foregoing except:
(a) (i) loans or advances by any Subsidiary to a Borrower, (ii) loans
from ACC Corp. to the Canadian Subsidiaries in an aggregate principal
amount not to exceed $29,000,000 pursuant to the Canadian Note Documents
and secured by the Canadian Subsidiary Security Documents, each as in
effect on the Closing Date (or as amended or modified pursuant to Section
7.12 or with the prior written consent of the Required Lenders); PROVIDED,
that the amount of such loans funded with proceeds of Loans hereunder shall
not at any time exceed $10,000,000 in aggregate principal amount, and (iii)
the other existing loans, advances and investments described on SCHEDULE
9.4;
(b) investments by any Domestic Borrower or Subsidiary thereof in (i)
marketable direct obligations issued or unconditionally guaranteed by the
United States of America or any agency thereof maturing within one (1) year
from the date of acquisition thereof, (ii) commercial paper maturing no
more than 120 days from the date of creation thereof and currently having
the highest rating obtainable from either Standard & Poor's Corporation or
Xxxxx'x Investors Service, Inc., (iii) certificates of deposit maturing no
more than 120 days from the date of creation thereof issued by commercial
banks incorporated under the laws of the United States of America, each
having combined capital, surplus and undivided profits of not less than
$500,000,000 and having a rating of "A" or better by a nationally
recognized rating agency; PROVIDED, that the aggregate amount invested in
such certificates of deposit shall not at any time exceed $5,000,000 for
any one such certificate of deposit and $10,000,000 for any one such bank,
or (iv) time deposits maturing no more than 30 days from the date of
creation thereof with commercial banks or savings banks or savings and loan
associations each having membership either in the Federal Deposit Insurance
Corporation ("FDIC") or the deposits of which are insured by the FDIC and
in amounts not exceeding the maximum amounts of insurance thereunder, and
investments by any Canadian Subsidiary or by ACC U.K. or any Subsidiary
thereof in any corresponding government securities or cash equivalents
reasonably satisfactory to the Required Lenders;
(c) investments by ACC or any Subsidiary in the form of acquisitions
of all or substantially all of the business or a line of business (whether
by the acquisition of capital stock, assets or any combination thereof) of
any other Person if a description of the acquisition and the governing
documentation shall have been delivered to the Managing Agents at least
fifteen (15) Business Days prior to the consummation of the acquisition and
the Required Lenders shall have consented in writing thereto prior to such
consummation;
(d) investments by ACC or any Subsidiary thereof in joint venture and
other partnership interests in an aggregate amount not to exceed $1,000,000
during the term of this Agreement, unless the Required Lenders have
consented in writing to any such investment prior to the consummation
thereof; and
(e) loans to employees in the ordinary course of business for travel
and other advanced expenses not to exceed $20,000 with respect to any
individual employee or $200,000 in the aggregate.
SECTION 9.5 LIMITATIONS ON MERGERS AND LIQUIDATION. Merge,
consolidate or enter into any similar combination with any other Person or
liquidate, wind-up or dissolve itself (or suffer any liquidation or
dissolution) except (a) any Wholly-Owned Subsidiary of ACC which is not a
Material Subsidiary may be liquidated, wound-up or dissolved, (b) any
Wholly-Owned Subsidiary of ACC may merge with ACC or any other Wholly-Owned
Subsidiary of ACC and (c) any Wholly-Owned Subsidiary may merge into the
Person such Wholly-Owned Subsidiary was formed to acquire in connection
with an acquisition permitted by Section 9.4(c).
SECTION 9.6 LIMITATIONS ON SALE OF ASSETS. Convey, sell, lease,
assign, transfer or otherwise dispose of any of its property, business or
assets (including, without limitation, the sale of any receivables and
leasehold interests and any sale-leaseback or similar transaction), whether
now owned or hereafter acquired except:
(a) the sale of inventory in the ordinary course of business;
(b) the sale of obsolete assets no longer used or usable in the
business of ACC or any of its Subsidiaries;
(c) the sale or discount without recourse of accounts receivable
arising in the ordinary course of business in connection with the
compromise or collection thereof;
(d) the transfer by any Subsidiary of any of its property to a
Wholly-Owned Subsidiary, ACC or the Borrower;
(e) the disposition by ACC of a percentage of its equity ownership
interest in ACC U.K. not to exceed 20% of such interest in connection with
any joint venture investments permitted hereunder; and
(f) the disposition by ACC of its entire equity ownership interest in
ACC LEC as long as ACC demonstrates to the satisfaction of the Lenders that
the purchase price therefor exceeds the cash value of the assets of ACC LEC
and $1,500,000 of such purchase price is paid in cash in immediately
available funds on the closing date of such sale.
SECTION 9.7 LIMITATIONS ON DIVIDENDS AND DISTRIBUTIONS. Declare or
pay any dividends upon any of its capital stock; purchase, redeem, retire
or otherwise acquire, directly or indirectly, any shares of its capital
stock, or make any distribution of cash, property or assets among the
holders of shares of its capital stock; or make any material change in its
capital structure that could reasonably be expected to have a Material
Adverse Effect; PROVIDED that (a) any Borrower may pay dividends in shares
of its own capital stock, (b) any Subsidiary of a Borrower may pay
dividends or make other distributions in respect of its capital stock to
such Borrower, (c) any Subsidiary of a Borrower may make payments on any
Debt or other obligation owed to such Borrower which Debt or other
obligation and such payment are permitted hereunder and any other
applicable Loan Document and (d) as long as no Default or Event of Default
has occurred and is continuing or would be created thereby, ACC may pay
cash dividends on the Preferred Stock in accordance with the terms thereof
on the Closing Date.
SECTION 9.8 LIMITATIONS ON EXCHANGE AND ISSUANCE OF CAPITAL STOCK.
Issue, sell or otherwise dispose of any class or series of capital stock
that, by its terms or by the terms of any security into which it is
convertible or exchangeable, is, or upon the happening of an event or
passage of time would be, (a) convertible or exchangeable into Debt or (b)
required to be redeemed or repurchased, including at the option of the
holder, in whole or in part, or has, or upon the happening of an event or
passage of time would have, a redemption or similar payment due, in any
such case prior to ninety (90) days after the Termination Date.
SECTION 9.9 TRANSACTIONS WITH AFFILIATES. Directly or indirectly:
(a) make any loan or advance to, or purchase or assume any note or other
obligation to or from, any of its officers, directors, shareholders or
other Affiliates, or to or from any member of the immediate family of any
of its officers, directors, shareholders or other Affiliates, or
subcontract any operations to any of its Affiliates, or (b) enter into, or
be a party to, any transaction with any of its Affiliates, except pursuant
to the reasonable requirements of its business and upon fair and reasonable
terms that are fully disclosed to the Required Lenders and are no less
favorable to it than would obtain in a comparable arm's length transaction
with a Person not its Affiliate.
SECTION 9.10 CERTAIN ACCOUNTING CHANGES. Change its Fiscal Year end,
or make any material change in its accounting treatment and reporting
practices except as required by GAAP.
SECTION 9.11 AMENDMENTS; PAYMENTS AND PREPAYMENTS OF SUBORDINATED
DEBT. Amend or modify (or permit the modification or amendment of) any of
the terms or provisions of any Subordinated Debt; or cancel or forgive,
make any voluntary or optional payment or prepayment on, or redeem or
acquire for value (including without limitation by way of depositing with
any trustee with respect thereto money or securities before due for the
purpose of paying when due) any Subordinated Debt.
SECTION 9.12 LICENSES. Terminate any Communications License, PUC
Authorization or other Governmental Approval or any Material Contract
without the prior written consent of the Required Lenders if in the
reasonable opinion of the Required Lenders such termination would have a
Material Adverse Effect.
SECTION 9.13 RESTRICTIVE AGREEMENTS. Enter into any Debt which
contains any negative pledge on assets or any covenants materially more
restrictive than the provisions of Articles VIII, IX and X hereof, or which
restricts, limits or otherwise encumbers its ability to incur Liens on or
with respect to any of its assets or properties other than the assets or
properties securing such Debt.
ARTICLE X
UNCONDITIONAL GUARANTY
SECTION 10.1 GUARANTY OF OBLIGATIONS. The Guarantor hereby
unconditionally guarantees to the Administrative Agent for the ratable
benefit of the Agents and the Lenders, and their respective successors,
endorsees, transferees and assigns, the prompt payment and performance of
all Obligations of the Borrowers (other than ACC), whether primary or
secondary (whether by way of endorsement or otherwise), whether now
existing or hereafter arising, whether or not from time to time reduced or
extinguished (except by payment thereof) or hereafter increased or
incurred, whether or not recovery may be or hereafter become barred by the
statute of limitations, whether enforceable or unenforceable as against any
such Borrower, whether or not discharged, stayed or otherwise affected by
any bankruptcy, insolvency or other similar law or proceeding, whether
created directly with any Agent or Lender or acquired by any Agent or
Lender through assignment, endorsement or otherwise, whether matured or
unmatured, whether joint or several, as and when the same become due and
payable (whether at maturity or earlier, by reason of acceleration,
mandatory repayment or otherwise), in accordance with the terms of any such
instruments evidencing any such obligations, including all renewals,
extensions or modifications thereof (all Obligations of each such Borrower
to any Agent or Lender, including all of the foregoing, being hereinafter
collectively referred to as the "Guaranteed Obligations").
SECTION 10.2 NATURE OF GUARANTY. The Guarantor agrees that this
Guaranty is a continuing, unconditional guaranty of payment and performance
and not of collection, and that its obligations under this Guaranty shall
be primary, absolute and unconditional, irrespective of, and unaffected by
(a) the genuineness, validity, regularity, enforceability or any future
amendment of, or change in, this Agreement or any other Loan Document or
any other agreement, document or instrument to which any such Borrower is
or may become a party, (b) the absence of any action to enforce this
Guaranty, this Agreement or any other Loan Document or the waiver or
consent by the Administrative Agent or any Lender with respect to any of
the provisions of this Guaranty, this Agreement or any other Loan Document,
(c) the existence, value or condition of, or failure to perfect its Lien
against, any security for or other guaranty of the Guaranteed Obligations
or any action, or the absence of any action, by the Administrative Agent or
any Lender in respect of such security or guaranty (including, without
limitation, the release of any such security or guaranty) or (d) any other
action or circumstances which might otherwise constitute a legal or
equitable discharge or defense of a surety or guarantor; it being agreed by
the Guarantor that its obligations under this Guaranty shall not be
discharged until the final and indefeasible payment and performance, in
full, of the Guaranteed Obligations and the termination of the Commitments.
The Guarantor expressly waives all rights it may now or in the future have
under any statute (including without limitation North Carolina General
Statutes Section 26-7, ET SEQ. or similar law), or at law or in equity, or
otherwise, to compel the Administrative Agent or any Lender to proceed in
respect of the Guaranteed Obligations against any such Borrower or any
other party or against any security for or other guaranty of the payment
and performance of the Guaranteed Obligations before proceeding against, or
as a condition to proceeding against, the Guarantor. The Guarantor further
expressly waives and agrees not to assert or take advantage of any defense
based upon the failure of the Administrative Agent or any Lender to
commence an action in respect of the Guaranteed Obligations against any
such Borrower, the Guarantor or any other party or any security for the
payment and performance of the Guaranteed Obligations. The Guarantor
agrees that any notice or directive given at any time to the Administrative
Agent or any Lender which is inconsistent with the waivers in the preceding
two sentences shall be null and void and may be ignored by the
Administrative Agent or Lender, and, in addition, may not be pleaded or
introduced as evidence in any litigation relating to this Guaranty for the
reason that such pleading or introduction would be at variance with the
written terms of this Guaranty, unless the Administrative Agent and the
Required Lenders have specifically agreed otherwise in writing. The
foregoing waivers are of the essence of the transaction contemplated by the
Loan Documents and, but for this Guaranty and such waivers, the Agents and
Lenders would decline to enter into this Agreement.
SECTION 10.3 DEMAND BY THE ADMINISTRATIVE AGENT. In addition to the
terms set forth in Section 10.2, and in no manner imposing any limitation
on such terms, if all or any portion of the then outstanding Guaranteed
Obligations under this Agreement are declared to be immediately due and
payable, then the Guarantor shall, upon demand in writing therefor by the
Administrative Agent to the Guarantor, pay all or such portion of the
outstanding Guaranteed Obligations then declared due and payable. Payment
by the Guarantor shall be made to the Administrative Agent, to be credited
and applied upon the Guaranteed Obligations, in immediately available funds
in the Permitted Currency in which the relevant Guaranteed Obligations are
denominated to an account designated by the Administrative Agent or at the
Administrative Agent's office or at any other address that may be specified
in writing from time to time by the Administrative Agent.
SECTION 10.4 WAIVERS. In addition to the waivers contained in
Section 10.2, the Guarantor waives, and agrees that it shall not at any
time insist upon, plead or in any manner whatever claim or take the benefit
or advantage of, any appraisal, valuation, stay, extension, marshalling of
assets or redemption laws, or exemption, whether now or at any time
hereafter in force, which may delay, prevent or otherwise affect the
performance by the Guarantor of its obligations under, or the enforcement
by the Administrative Agent or the Lenders of, this Guaranty. The
Guarantor further hereby waives diligence, presentment, demand, protest and
notice of whatever kind or nature with respect to any of the Guaranteed
Obligations and waives the benefit of all provisions of law which are or
might be in conflict with the terms of this Guaranty. The Guarantor
represents, warrants and agrees that its obligations under this Guaranty
are not and shall not be subject to any counterclaims, offsets or defenses
of any kind against the Administrative Agent, the Lenders or any such
Borrower whether now existing or which may arise in the future.
SECTION 10.5 MODIFICATION OF LOAN DOCUMENTS ETC. If the
Administrative Agent or the Lenders shall at any time or from time to time,
with or without the consent of, or notice to, the Guarantor (a) change or
extend the manner, place or terms of payment of, or renew or alter all or
any portion of, the Guaranteed Obligations, (b) take any action under or in
respect of the Loan Documents in the exercise of any remedy, power or
privilege contained therein or available to it at law, in equity or
otherwise, or waive or refrain from exercising any such remedies, powers or
privileges, (c) amend or modify, in any manner whatsoever, the Loan
Documents, (d) extend or waive the time for performance by the Guarantor,
any such Borrower or any other Person of, or compliance with, any term,
covenant or agreement on its part to be performed or observed under a Loan
Document (other than this Guaranty), or waive such performance or
compliance or consent to a failure of, or departure from, such performance
or compliance, (e) take and hold security or collateral for the payment of
the Guaranteed Obligations or sell, exchange, release, dispose of, or
otherwise deal with, any property pledged, mortgaged or conveyed, or in
which the Administrative Agent or the Lenders have been granted a Lien, to
secure any Debt of the Guarantor or any such Borrower to any Agent or the
Lenders, (f) release anyone who may be liable in any manner for the payment
of any amounts owed by the Guarantor or any such Borrower to any Agent or
Lender, (g) modify or terminate the terms of any intercreditor or
subordination agreement pursuant to which claims of other creditors of the
Guarantor or any such Borrower are subordinated to the claims of any Agent
or Lender or (h) apply any sums by whomever paid or however realized to any
amounts owing by the Guarantor or any such Borrower to any Agent or Lender
on account of the Obligations in such manner as the Administrative Agent or
any Lender shall determine in its reasonable discretion; then neither the
Administrative Agent nor any Lender shall incur any liability to the
Guarantor as a result thereof, and no such action shall impair or release
the obligations of the Guarantor under this Guaranty.
SECTION 10.6 REINSTATEMENT. The Guarantor agrees that, if any
payment made by any such Borrower or any other Person applied to the
Obligations is at any time annulled, set aside, rescinded, invalidated,
declared to be fraudulent or preferential or otherwise required to be
refunded or repaid, or the proceeds of Collateral are required to be
returned by any Agent or Lender to any such Borrower, its estate, trustee,
receiver or any other party, including, without limitation, the Guarantor,
under any Applicable Law or equitable cause, then, to the extent of such
payment or repayment, the Guarantor's liability hereunder (and any Lien or
Collateral securing such liability) shall be and remain in full force and
effect, as fully as if such payment had never been made, and, if prior
thereto, this Guaranty shall have been canceled or surrendered (and if any
Lien or Collateral securing the Guarantor's liability hereunder shall have
been released or terminated by virtue of such cancellation or surrender),
this Guaranty (and such Lien or Collateral) shall be reinstated in full
force and effect, and such prior cancellation or surrender shall not
diminish, release, discharge, impair or otherwise affect the obligations of
the Guarantor in respect of the amount of such payment (or any Lien or
Collateral securing such obligation).
SECTION 10.7 NO SUBROGATION. Until all amounts owing to the Agents
and Lenders on account of the Obligations are paid in full and the
Commitments are terminated, the Guarantor hereby waives any claims or other
rights which it may now or hereafter acquire against any such Borrower that
arise from the existence or performance of the Guarantor's obligations
under this Guaranty, including, without limitation, any right of
subrogation, reimbursement, exoneration, indemnification, any right to
participate in any claim or remedy of the Administrative Agent or the
Lenders against any such Borrower or any Collateral which the
Administrative Agent or the Lenders now have or may hereafter acquire,
whether or not such claim, remedy or right arises in equity or under
contract, statute or common law, by any payment made hereunder or
otherwise, including without limitation, the right to take or receive from
any such Borrower, directly or indirectly, in cash or other property or by
set-off or in any other manner, payment or security on account of such
claim or other rights. If any amount shall be paid to the Guarantor on
account of such rights at any time when all of the Obligations shall not
have been paid in full, such amount shall be held by the Guarantor in trust
for the Administrative Agent, segregated from other funds of the Guarantor,
and shall, forthwith upon receipt by the Guarantor, be turned over to the
Administrative Agent in the exact form received by the Guarantor (duly
indorsed by the Guarantor to the Administrative Agent, if required) to be
applied against the Obligations, whether matured or unmatured, in such
order as set forth herein.
ARTICLE XI
DEFAULT AND REMEDIES
SECTION 11.1 EVENTS OF DEFAULT. Each of the following shall
constitute an Event of Default, whatever the reason for such event and
whether it shall be voluntary or involuntary or be effected by operation of
law or pursuant to any judgment or order of any court or any order, rule or
regulation of any Governmental Authority or otherwise:
(a) DEFAULT IN PAYMENT OF PRINCIPAL OF LOANS. Any Borrower shall
default in any payment of principal of any Loan or Note when and as due
(whether at maturity, by reason of acceleration or otherwise).
(b) OTHER PAYMENT DEFAULT. Any Borrower shall default in the payment
when and as due (whether at maturity, by reason of acceleration or
otherwise) of interest on any Loan or Note or the payment of any other
Obligation, and such default shall continue unremedied for five (5)
Business Days.
(c) MISREPRESENTATION. Any representation or warranty made or deemed
to be made by any Borrower or any of its Subsidiaries under this Agreement,
any Loan Document or any amendment hereto or thereto, shall at any time
prove to have been incorrect or misleading in any material respect when
made or deemed made.
(d) DEFAULT IN PERFORMANCE OF CERTAIN COVENANTS. Any Borrower shall
default in the performance or observance of any covenant or agreement
contained in Sections 6.5(e) or 7.12 or Articles VIII or IX of this
Agreement.
(e) DEFAULT IN PERFORMANCE OF OTHER COVENANTS AND CONDITIONS. Any
Borrower or Subsidiary thereof shall default in the performance or
observance of any term, covenant, condition or agreement contained in this
Agreement (other than as specifically provided for otherwise in this
Section 11.1) or any other Loan Document and such default shall continue
for a period of thirty (30) days after written notice thereof has been
given to such Borrower by the Administrative Agent.
(f) HEDGING AGREEMENT. Any termination payment shall be due by a
Borrower under any Hedging Agreement and such amount is not paid within ten
(10) Business Days of the due date thereof.
(g) DEBT CROSS-DEFAULT. ACC or any of its Subsidiaries shall (i)
default in the payment of any Debt (other than the Notes) the aggregate
outstanding amount of which is in excess of $250,000 (or the equivalent
thereof in any foreign currency) beyond the period of grace if any,
provided in the instrument or agreement under which such Debt was created;
or (ii) default in the observance or performance of any other agreement or
condition relating to any Debt (other than the Notes) the aggregate
outstanding amount of which is in excess of $250,000 (or the equivalent
thereof in any foreign currency) or contained in any instrument or
agreement evidencing, securing or relating thereto or any other event shall
occur or condition exist, the effect of which default or other event or
condition is to cause, or to permit the holder or holders of such Debt (or
a trustee or agent on behalf of such holder or holders) to cause, with the
giving of notice if required, any such Debt to become due prior to its
stated maturity (any applicable grace period having expired).
(h) OTHER CROSS-DEFAULTS. ACC or any of its Subsidiaries shall
default in the payment when due, or in the performance or observance, of
any obligation or condition of any Material Contract the breach of which
could reasonably be expected to have a Material Adverse Effect unless, but
only as long as, the existence of any such default is being contested by
ACC or such Subsidiary in good faith by appropriate proceedings and
adequate reserves in respect thereof have been established on the books of
ACC or such Subsidiary to the extent required by GAAP.
(i) CHANGE IN CONTROL. Any person or group of persons (within the
meaning of Section 13(d) of the Securities Exchange Act of 1934, as
amended) other than current management thereof, shall obtain ownership or
control in one or more series of transactions of more than twenty percent
(20%) of the common stock and twenty percent (20%) of the voting power of
ACC entitled to vote in the election of members of the board of directors
of ACC or there shall have occurred under any indenture or other instrument
evidencing any Debt in excess of $250,000 (or the equivalent thereof in any
foreign currency) any "change in control" (as defined in such indenture or
other evidence of Debt) obligating ACC to repurchase, redeem or repay all
or any part of the Debt or capital stock provided for therein (any such
event, a "Change in Control").
(j) VOLUNTARY BANKRUPTCY PROCEEDING. Any Borrower or Subsidiary
thereof shall (i) commence a voluntary case under the federal bankruptcy
laws (as now or hereafter in effect); (ii) file a petition seeking to take
advantage of any other laws, domestic or foreign, relating to bankruptcy,
insolvency, reorganization, winding up or composition for adjustment of
debts; (iii) consent to or fail to contest within sixty (60) days of the
filing thereof any petition filed against it in an involuntary case under
such bankruptcy laws or other laws; (iv) apply for or consent to, or fail
to contest in a timely and appropriate manner, the appointment of, or the
taking of possession by, a receiver, custodian, trustee, or liquidator of
itself or of a substantial part of its property, domestic or foreign; (v)
admit in writing its inability to pay its debts as they become due; (vi)
make a general assignment for the benefit of creditors; or (vii) take any
corporate action for the purpose of authorizing any of the foregoing.
(k) INVOLUNTARY BANKRUPTCY PROCEEDING. A case or other proceeding
shall be commenced against any Borrower or Subsidiary thereof in any court
of competent jurisdiction seeking (i) relief under the federal bankruptcy
laws (as now or hereafter in effect) or under any other laws, domestic or
foreign, relating to bankruptcy, insolvency, reorganization, winding up or
adjustment of debts; or (ii) the appointment of a trustee, receiver,
custodian, liquidator or the like for any Borrower or Subsidiary thereof or
for all or any substantial part of their respective assets, domestic or
foreign, and such case or proceeding shall continue undismissed or unstayed
for a period of sixty (60) consecutive calendar days, or an order granting
the relief requested in such case or proceeding (including, but not limited
to, an order for relief under such federal bankruptcy laws) shall be
entered.
(l) FAILURE OF AGREEMENTS. Any material provision of this Agreement
or of any other Loan Document shall for any reason cease to be valid and
binding on any Borrower or Subsidiary thereof or any such Person shall so
state in writing, or this Agreement or any other Loan Document shall for
any reason cease to create a valid and perfected first priority Lien on, or
security interest in, any of the Collateral purported to be covered
thereby, in each case other than in accordance with the express terms
hereof or thereof.
(m) TERMINATION EVENT. The occurrence of any of the following
events: (i) ACC or any ERISA Affiliate fails to make full payment when due
of all amounts which, under the provisions of any Pension Plan or Section
412 of the Code, ACC or any ERISA Affiliate is required to pay as
contributions thereto; (ii) an accumulated funding deficiency in excess of
$250,000 occurs or exists, whether or not waived, with respect to any
Pension Plan; (iii) a Termination Event; or (iv) ACC or any ERISA Affiliate
as employers under one or more Multiemployer Plan makes a complete or
partial withdrawal from any such Multiemployer Plan and the plan sponsor of
such Multiemployer Plans notifies such withdrawing employer that such
employer has incurred a withdrawal liability requiring payments in an
amount exceeding $250,000.
(n) JUDGMENT. A judgment or order for the payment of money which
exceeds $250,000 in amount shall be entered against the ACC or any of its
Subsidiaries by any court and such judgment or order shall continue
undischarged or unstayed for a period of thirty (30) days.
(o) LOSS OF LICENSE. Any Communications License or PUC Authorization
of ACC or any Subsidiary thereof shall expire, terminate, be canceled or
otherwise lost or any application therefor be rejected, which event could
reasonably be expected to have a Material Adverse Effect.
(p) CONVERSION. The Fleet Venture Notes shall not convert into the
Preferred Stock in accordance with the terms thereof prior to August 1,
1995.
(q) GOVERNMENTAL APPROVALS. Each Governmental Approval referred to
in Section 7.12(b) shall not have been delivered to the Administrative
Agent within one hundred and eighty (180) days of the date hereof.
SECTION 11.2 REMEDIES. Upon the occurrence of an Event of Default,
with the consent of the Required Lenders, the Administrative Agent may, or
upon the request of the Required Lenders, the Administrative Agent shall,
by notice to the Borrowers:
(a) ACCELERATION; TERMINATION OF FACILITIES. Declare the principal
of and interest on the Loans and the Notes at the time outstanding, and
all other amounts owed to the Lenders and to the Agents under this
Agreement or any of the other Loan Documents and all other Obligations, to
be forthwith due and payable, whereupon the same shall immediately become
due and payable without presentment, demand, protest or other notice of any
kind, all of which are expressly waived, anything in this Agreement or the
other Loan Documents to the contrary notwithstanding, and terminate the
Credit Facility and any right of the Borrower to request borrowings or
Letters of Credit thereunder; PROVIDED, that upon the occurrence of an
Event of Default specified in Section 11.1(j) or (k), the Credit Facility
shall be automatically terminated and all Obligations shall automatically
become due and payable.
(b) RIGHTS OF COLLECTION. Exercise on behalf of the Lenders all of
its other rights and remedies under this Agreement, the other Loan
Documents and Applicable Law, in order to satisfy all of the Borrower's
Obligations.
SECTION 11.3 RIGHTS AND REMEDIES CUMULATIVE; NON-WAIVER; ETC. The
enumeration of the rights and remedies of the Agents and the Lenders set
forth in this Agreement is not intended to be exhaustive and the exercise
by the Agents and the Lenders of any right or remedy shall not preclude the
exercise of any other rights or remedies, all of which shall be cumulative,
and shall be in addition to any other right or remedy given hereunder or
under the Loan Documents or that may now or hereafter exist in law or in
equity or by suit or otherwise. No delay or failure to take action on the
part of any Agent or Lender in exercising any right, power or privilege
shall operate as a waiver thereof, nor shall any single or partial exercise
of any such right, power or privilege preclude other or further exercise
thereof or the exercise of any other right, power or privilege or shall be
construed to be a waiver of any Event of Default. No course of dealing
between the Borrowers, the Agents and the Lenders or their respective
agents or employees shall be effective to change, modify or discharge any
provision of this Agreement or any of the other Loan Documents or to
constitute a waiver of any Event of Default. In addition, any election of
remedies which results in the denial or impairment of the right of the
Administrative Agent to seek a deficiency judgment against any Borrower
referred to in Section 10.1 shall not impair the Guarantor's obligation to
pay the full amount of the Guaranteed Obligations.
SECTION 11.4 CONSENTS. The Borrowers acknowledge that certain
transactions contemplated by this Agreement and the other Loan Documents
and certain actions which may be taken by the Agents or the Lenders in the
exercise of their respective rights under this Agreement and the other Loan
Documents may require the consent of a Governmental Authority. If counsel
to any Agent reasonably determines that the consent of a Governmental
Authority is required in connection with the execution, delivery and
performance of any of the aforesaid documents or any documents delivered to
the Agents or the Lenders in connection therewith or as a result of any
action which may be taken pursuant thereto, then the Borrowers, at their
sole cost and expense, agree to use their best efforts to secure such
consent and to cooperate with the Agents and the Lenders in any action
commenced by any Agent or Lender to secure such consent.
SECTION 11.5 JUDGMENT CURRENCY. The obligation of the Borrowers to
make payments of the principal of and interest on the Notes and any other
amounts payable hereunder in the currency specified for such payment herein
or in the Notes shall not be discharged or satisfied by any tender, or any
recovery pursuant to any judgment, which is expressed in or converted into
any other currency, except to the extent that such tender or recovery shall
result in the actual receipt by each of the Administrative Agent and
Lenders of the full amount of the particular Permitted Currency expressed
to be payable herein or in the Notes. The Administrative Agent shall,
using all amounts obtained or received from the Borrowers pursuant to any
such tender or recovery in payment of principal of and interest on the
Notes, promptly purchase the applicable Permitted Currency at the most
favorable spot exchange rate determined by the Administrative Agent to be
available to it. The obligation of the Borrowers to make payments in the
applicable Permitted Currency shall be enforceable as an alternative or
additional cause of action solely for the purpose of recovering in the
applicable Permitted Currency the amount, if any, by which such actual
receipt shall fall short of the full amount of the Permitted Currency
expressed to be payable herein or in the Notes.
SECTION 11.6 ADJUSTMENTS. If any Lender (a "Benefitted Lender")
shall at any time receive any payment of all or part of its Loans, or
interest thereon, or if any Lender shall at any time receive any Collateral
in respect to its Loans (whether voluntarily or involuntarily, by set-off
or otherwise) in a greater proportion than any such payment to and
Collateral received by any other Lender, if any, in respect of such other
Lender's Loans, or interest thereon, such Benefitted Lender shall purchase
for cash from the other Lenders such portion of each such other Lender's
Loans, or shall provide such other Lenders with the benefits of any such
Collateral, or the proceeds thereof, as shall be necessary to cause such
Benefitted Lender to share the excess payment or benefits of such
Collateral or proceeds ratably with each of the Lenders; PROVIDED, that if
all or any portion of such excess payment or benefits is thereafter
recovered from such Benefitted Lender, such purchase shall be rescinded,
and the purchase price and benefits returned to the extent of such
recovery, but without interest. The Borrower agrees that each Lender so
purchasing a portion of another Lender's Loans may exercise all rights of
payment (including, without limitation, rights of set-off) with respect to
such portion as fully as if such Lender were the direct holder of such
portion.
ARTICLE XII
THE AGENTS
SECTION 12.1 APPOINTMENT. Each of the Lenders hereby irrevocably
designates and appoints First Union as Administrative Agent and Managing
Agent of such Lender and Shawmut Bank Connecticut, N.A. as Managing Agent
of such Lender under this Agreement and the other Loan Documents and each
such Lender irrevocably authorizes First Union as Administrative Agent, and
Shawmut Bank Connecticut, N.A. as Managing Agent, respectively, for such
Lender, to take such action on its behalf under the provisions of this
Agreement and the other Loan Documents and to exercise such powers and
perform such duties as are expressly delegated to each such Agent by the
terms of this Agreement and such other Loan Documents, together with such
other powers as are reasonably incidental thereto. Notwithstanding any
provision to the contrary elsewhere in this Agreement or such other Loan
Documents, none of the Agents shall have any duties or responsibilities,
except those expressly set forth herein and therein, or any fiduciary
relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into
this Agreement or the other Loan Documents or otherwise exist against such
Agent. To the extent any provision of this Agreement permits action by any
Agent, such Agent shall, subject to the provisions of Section 13.11 hereof
and of this Article XII, take such action if directed in writing to do so
by the Required Lenders.
SECTION 12.2 DELEGATION OF DUTIES. Each of the Agents may execute
any of its respective duties under this Agreement and the other Loan
Documents by or through agents or attorneys-in-fact and shall be entitled
to advice of counsel concerning all matters pertaining to such duties. No
Agent shall be responsible for the negligence or misconduct of any agents
or attorneys-in-fact selected by such Agent with reasonable care.
SECTION 12.3 EXCULPATORY PROVISIONS. Neither any Agent nor any of
its officers, directors, employees, agents, attorneys-in-fact, Subsidiaries
or Affiliates shall be (a) liable for any action lawfully taken or omitted
to be taken by it or such Person under or in connection with this Agreement
or the other Loan Documents (except for its or such Person's own gross
negligence or willful misconduct), or (b) responsible in any manner to any
of the Lenders for any recitals, statements, representations or warranties
made by the Borrowers or any of their Subsidiaries or any officer thereof
contained in this Agreement or the other Loan Documents or in any
certificate, report, statement or other document referred to or provided
for in, or received by such Agent under or in connection with, this
Agreement or the other Loan Documents or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement
or the other Loan Documents or for any failure of the Borrowers or any of
their Subsidiaries to perform its obligations hereunder or thereunder. No
Agent shall be under any obligation to any Lender to ascertain or to
inquire as to the observance or performance of any of the agreements
contained in, or conditions of, this Agreement, or to inspect the
properties, books or records of the Borrowers or any of their Subsidiaries.
SECTION 12.4 RELIANCE BY AGENTS. Each of the Agents shall be
entitled to rely, and shall be fully protected in relying, upon any note,
writing, resolution, notice, consent, certificate, affidavit, letter,
cablegram, telegram, telecopy, telex or teletype message, statement, order
or other document or conversation believed by it to be genuine and correct
and to have been signed, sent or made by the proper Person or Persons and
upon advice and statements of legal counsel (including, without limitation,
counsel to the Borrowers), independent accountants and other experts
selected by any Agent. Each of the Agents may deem and treat the payee of
any Note as the owner thereof for all purposes unless such Note shall have
been transferred in accordance with Section 13.10 hereof. Each of the
Agents shall be fully justified in failing or refusing to take any action
under this Agreement and the other Loan Documents unless it shall first
receive such advice or concurrence of the Required Lenders (or, when
expressly required hereby or by the relevant other Loan Document, all the
Lenders) as it deems appropriate or it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense which
may be incurred by it by reason of taking or continuing to take any such
action except for its own gross negligence or willful misconduct. Each of
the Agents shall in all cases be fully protected in acting, or in
refraining from acting, under this Agreement and the Notes in accordance
with a request of the Required Lenders (or, when expressly required hereby,
all the Lenders), and such request and any action taken or failure to act
pursuant thereto shall be binding upon all the Lenders and all future
holders of the Notes.
SECTION 12.5 NOTICE OF DEFAULT. None of the Agents shall be deemed
to have knowledge or notice of the occurrence of any Default or Event of
Default hereunder unless it has received notice from a Lender or a Borrower
referring to this Agreement, describing such Default or Event of Default
and stating that such notice is a "notice of default". In the event that
any Agent receives such a notice, it shall promptly give notice thereof to
the Administrative Agent who shall promptly give notice thereof to the
Lenders. The Administrative Agent shall take such action with respect to
such Default or Event of Default as shall be reasonably directed by the
Required Lenders; PROVIDED that unless and until the Administrative Agent
shall have received such directions, the Administrative Agent may (but
shall not be obligated to) take such action, or refrain from taking such
action, with respect to such Default or Event of Default as it shall deem
advisable in the best interests of the Lenders.
SECTION 12.6 NON-RELIANCE ON SUCH AGENTS AND OTHER LENDERS. Each
Lender expressly acknowledges that none of the Agents nor any of their
respective officers, directors, employees, agents, attorneys-in-fact,
Subsidiaries or Affiliates has made any representations or warranties to it
and that no act by any Agent hereinafter taken, including any review of the
affairs of the Borrowers or any of its Subsidiaries, shall be deemed to
constitute any representation or warranty by such Agent to any Lender.
Each Lender represents to the Agents that it has, independently and without
reliance upon the Agents or any other Lender, and based on such documents
and information as it has deemed appropriate, made its own appraisal of and
investigation into the business, operations, property, financial and other
condition and creditworthiness of the Borrowers and their Subsidiaries and
made its own decision to make its Loans and issue or participate in Letters
of Credit hereunder and enter into this Agreement. Each Lender also
represents that it will, independently and without reliance upon any Agent
or any other Lender, and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit
analysis, appraisals and decisions in taking or not taking action under
this Agreement and the other Loan Documents, and to make such investigation
as it deems necessary to inform itself as to the business, operations,
property, financial and other condition and creditworthiness of the
Borrowers and their Subsidiaries. Except for notices, reports and other
documents expressly required to be furnished to the Lenders by any Agent
hereunder or by the other Loan Documents, no Agent shall have any duty or
responsibility to provide any Lender with any credit or other information
concerning the business, operations, property, financial and other
condition or creditworthiness of the Borrowers or any of their Subsidiaries
which may come into the possession of such Agent or any of its respective
officers, directors, employees, agents, attorneys-in-fact, Subsidiaries or
Affiliates.
SECTION 12.7 INDEMNIFICATION. The Lenders agree to indemnify the
Administrative Agent and the Managing Agents in their capacities as such
and (to the extent not reimbursed by the Borrowers and without limiting the
obligation of the Borrowers to do so), ratably according to the respective
amounts of their Commitment Percentages, from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind whatsoever which may at
any time (including, without limitation, at any time following the payment
of the Notes) be imposed on, incurred by or asserted against any such Agent
in any way relating to or arising out of this Agreement or the other Loan
Documents, or any documents contemplated by or referred to herein or
therein or the transactions contemplated hereby or thereby or any action
taken or omitted by such Agent under or in connection with any of the
foregoing; PROVIDED that no Lender shall be liable for the payment of any
portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting
solely from such Agent's bad faith, gross negligence or willful misconduct.
The agreements in this Section 13.7 shall survive the payment of the Notes
and all other amounts payable hereunder and the termination of this
Agreement.
SECTION 12.8 EACH OF THE AGENTS IN ITS INDIVIDUAL CAPACITY. Each
Agent and its respective Subsidiaries and Affiliates may make loans to,
accept deposits from and generally engage in any kind of business with each
Borrower as though such Agent were not an Agent hereunder. With respect to
any Loans made or renewed by it and any Note issued to it, each Agent shall
have the same rights and powers under this Agreement and the other Loan
Documents as any Lender and may exercise the same as though it were not an
Agent, and the terms "Lender" and "Lenders" shall include the
Administrative Agents and the Managing Agents in their individual capacity.
SECTION 12.9 RESIGNATION OF AGENTS; SUCCESSOR AGENTS. Each Managing
Agent may resign as such Agent at any time by giving notice thereof to the
Lenders and the Borrowers. If both Managing Agents have resigned, the
Administrative Agent shall serve as a Managing Agent hereunder. Subject to
the appointment and acceptance of a successor as provided below, the
Administrative Agent may resign at any time by giving notice thereof to the
Lenders and the Borrowers. Upon any such resignation, the Required Lenders
shall have the right to appoint a successor Administrative Agent which
successor shall have minimum capital and surplus of at least $500,000,000
and be consented to by the Borrowers, such consent not to be unreasonably
withheld. If no successor Administrative Agent shall have been so
appointed by the Required Lenders and shall have accepted such appointment
within thirty (30) days after the retiring Administrative Agent's giving of
notice of resignation, then the retiring Administrative Agent may, on
behalf of the Lenders, appoint a successor Administrative Agent, which
successor shall have minimum capital and surplus of at least $500,000,000.
Upon the acceptance of any appointment as Administrative Agent hereunder by
a successor Administrative Agent such successor Administrative Agent shall
thereupon succeed to and become vested with all rights, powers, privileges
and duties of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder. After any retiring Administrative Agent's resignation or
removal hereunder as Administrative Agent the provisions of this Section
12.9 shall continue in effect for its benefit in respect of any actions
taken or omitted to be taken by it while it was acting as Administrative
Agent.
ARTICLE XIII
MISCELLANEOUS
SECTION 13.1 NOTICES.
(a) METHOD OF COMMUNICATION. Except as otherwise provided in this
Agreement, all notices and communications hereunder shall be in writing, or
by telephone subsequently confirmed in writing. Any notice shall be
effective if delivered by hand delivery or sent via telecopy, recognized
overnight courier service or certified mail, return receipt requested, and
shall be presumed to be received by a party hereto (i) on the date of
delivery if delivered by hand or sent by telecopy, (ii) on the next
Business Day if sent by recognized overnight courier service and (iii) on
the third Business Day following the date sent by certified mail, return
receipt requested. A telephonic notice to any Agent as understood by such
Agent will be deemed to be the controlling and proper notice in the event
of a discrepancy with or failure to receive a confirming written notice.
(b) ADDRESSES FOR NOTICES. Notices to any party shall be sent to it
at the following addresses, or any other address as to which all the other
parties are notified in writing.
If to any Borrower: ACC Corp.
000 Xxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxx,
Executive Vice President
and Chief Financial Officer
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
With copies to: Xxxxxxxxx & Xxxxxxx
0000 Xxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
If to First Union as First Union National Bank of
Administrative Agent North Carolina
or Managing Agent: Xxx Xxxxx Xxxxx Xxxxxx, XX-00
000 X. Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Xxxx Xxxxxx
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
If to Shawmut Bank Shawmut Bank Connecticut, N.A.
Connecticut, N.A. 000 Xxxx Xxxxxx, XXX 000
as Managing Agent: Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxx Xxxxxxx
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
If to any Lender: The Address set forth on SCHEDULE 1.1
(c) ADMINISTRATIVE AGENT'S OFFICE. The Administrative Agent hereby
designates its office located at the address set forth above, or any
subsequent office which shall have been specified for such purpose by
written notice to the Borrowers and Lenders, as the Administrative Agent's
Office referred to herein, to which payments due are to be made and at
which Loans will be disbursed and Letters of Credit issued.
SECTION 13.2 EXPENSES. (a) The Borrowers will pay all reasonable
out-of-pocket expenses of (i) the Managing Agents in connection with the
preparation, execution and delivery of this Agreement and each of the other
Loan Documents, whenever the same shall be executed and delivered,
including all out-of-pocket syndication and due diligence expenses,
appraiser's fees, search fees, title insurance premiums, recording fees,
taxes and reasonable fees and disbursements of counsel for the Managing
Agents; (ii) the Managing Agents in connection with the preparation,
execution and delivery of any waiver, amendment or consent by the Agents or
the Lenders relating to this Agreement or any of the other Loan Documents
including reasonable fees and disbursements of counsel for the Agents,
search fees, appraiser's fees, recording fees and taxes imposed in
connection therewith; and (iii) the Managing Agents in connection with
administering and enforcing their respective rights under the Credit
Facility, including consulting with one or more Persons, including
appraisers, accountants, engineers and attorneys, concerning or related to
the nature, scope or value of any right or remedy of any Agent or any of
the Lenders hereunder or under any of the other Loan Documents, including
any review of factual matters in connection therewith, which expenses shall
include the reasonable fees and disbursements of such Persons.
(b) The Guarantor agrees that it will reimburse each Agent and Lender
for all expenses (including reasonable attorneys fees and expenses)
incurred by each Agent or Lender in connection with the obligations of the
Guarantor under the Guaranty and any other Loan Documents and all expenses
(including reasonable attorneys fees and expenses) incurred by the
Administrative Agent, any Agent or any Lender in connection with the
enforcement of the Guaranty.
SECTION 13.3 SET-OFF. In addition to any rights now or hereafter
granted under Applicable Law and not by way of limitation of any such
rights, upon and after the occurrence of any Event of Default and during
the continuance thereof, the Lenders and any assignee or participant of a
Lender in accordance with Section 13.10 are hereby authorized by the
Borrowers at any time or from time to time, without notice to the Borrowers
or to any other Person, any such notice being hereby expressly waived, to
set off and to appropriate and to apply any and all deposits (general or
special, time or demand, including, but not limited to, indebtedness
evidenced by certificates of deposit, whether matured or unmatured,
excluding government securities required by Applicable Law to be held as
security for worker's compensation and similar claims) and any other
indebtedness at any time held or owing by the Lenders, or any such assignee
or participant to or for the credit or the account of a Borrower against
and on account of the Obligations of such Borrower irrespective of whether
or not (a) the Lenders shall have made any demand under this Agreement or
any of the other Loan Documents or (b) the Administrative Agent shall have
declared any or all of the Obligations to be due and payable as permitted
by Section 11.2 and although such Obligations shall be contingent or
unmatured.
SECTION 13.4 GOVERNING LAW. This Agreement, the Notes and the other
Loan Documents, unless otherwise expressly set forth therein, shall be
governed by, construed and enforced in accordance with the laws of the
State of North Carolina, without reference to the conflicts or choice of
law principles thereof.
SECTION 13.5 CONSENT TO JURISDICTION. The Borrowers hereby
irrevocably consent to the personal jurisdiction of the state and federal
courts located in Mecklenburg County, North Carolina, in any action, claim
or other proceeding arising out of any dispute in connection with this
Agreement, the Notes and the other Loan Documents, any rights or
obligations hereunder or thereunder, or the performance of such rights and
obligations. The Borrowers hereby irrevocably consent to the service of a
summons and complaint and other process in any action, claim or proceeding
brought by any Agent or Lender in connection with this Agreement, the Notes
or the other Loan Documents, any rights or obligations hereunder or
thereunder, or the performance of such rights and obligations, on behalf of
itself or its property, in the manner specified in Section 13.1. Nothing
in this Section 13.5 shall affect the right of any Agent or Lender to serve
legal process in any other manner permitted by Applicable Law or affect the
right of any Agent or Lender to bring any action or proceeding against any
Borrower or its properties in the courts of any other jurisdictions.
SECTION 13.6 WAIVER OF JURY TRIAL. EACH AGENT, LENDER AND EACH
BORROWER HEREBY IRREVOCABLY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL
WITH RESPECT TO ANY ACTION, CLAIM OR OTHER PROCEEDING ARISING OUT OF ANY
DISPUTE IN CONNECTION WITH THIS AGREEMENT, THE NOTES OR THE OTHER LOAN
DOCUMENTS, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THEREUNDER, OR THE
PERFORMANCE OF SUCH RIGHTS AND OBLIGATIONS.
SECTION 13.7 REVERSAL OF PAYMENTS. To the extent any Borrower makes
a payment or payments to the Administrative Agent or other Agent for the
ratable benefit of the Lenders (or the other Agents) or the Administrative
Agent or other Agent receives any payment or proceeds of the Collateral
which payments or proceeds or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside and/or
required to be repaid to a trustee, receiver or any other party under any
bankruptcy law, state or federal law, common law or equitable cause, then,
to the extent of such payment or proceeds repaid, the Obligations or part
thereof intended to be satisfied shall be revived and continued in full
force and effect as if such payment or proceeds had not been received by
any Agent.
SECTION 13.8 INJUNCTIVE RELIEF. The Borrowers recognize that, in the
event the Borrowers fail to perform, observe or discharge any of their
obligations or liabilities under this Agreement, any remedy of law may
prove to be inadequate relief to the Lenders. Therefore, the Borrowers
agree that the Lenders, at the Lenders' option, shall be entitled to
temporary and permanent injunctive relief in any such case without the
necessity of proving actual damages.
SECTION 13.9 ACCOUNTING MATTERS. All financial and accounting
calculations, measurements and computations made for any purpose relating
to this Agreement, including, without limitation, all computations utilized
by ACC or any Subsidiary thereof to determine compliance with any covenant
contained herein, shall, except as otherwise expressly contemplated hereby
or unless there is an express written direction by the Administrative Agent
to the contrary agreed to by the Borrowers, be performed in accordance with
GAAP. In the event that changes in GAAP shall be mandated by the Financial
Accounting Standards Board, or any similar accounting body of comparable
standing, or shall be recommended by ACC's certified public accountants, to
the extent that such changes would modify such accounting terms or the
interpretation or computation thereof, such changes shall be followed in
defining such accounting terms only from and after the date the Credit and
the Lenders shall have amended this Agreement to the extent necessary to
reflect any such changes in the financial covenants and other terms and
conditions of this Agreement.
SECTION 13.10 SUCCESSORS AND ASSIGNS; PARTICIPATIONS.
(a) BENEFIT OF AGREEMENT. This Agreement shall be binding upon and
inure to the benefit of the Borrowers, each Agent and the Lenders, all
future holders of the Notes, and their respective successors and assigns,
except that no Borrower shall assign or transfer any of its rights or
obligations under this Agreement without the prior written consent of each
Lender. Nothing set forth in the Guaranty shall impair, as between the
Borrowers, the Agents and the Lenders, the obligations of the Borrowers
hereunder and under the other Loan Documents.
(b) ASSIGNMENT BY LENDERS. Each Lender may, with the consent of the
Agents and ACC, which consents shall not be unreasonably withheld, assign
to one or more Eligible Assignees all or a portion of its interests, rights
and obligations under this Agreement (including, without limitation, all or
a portion of the Loans at the time owing to it and the Notes held by it);
PROVIDED that:
(i) each such assignment shall be of a constant, and not a
varying, percentage of all the assigning Lender's rights and
obligations under this Agreement;
(ii) the Commitment so assigned shall not be less than
$5,000,000;
(iii) the parties to each such assignment shall execute and
deliver to the Administrative Agent, for its acceptance and recording
in the Register, an Assignment and Acceptance in the form of EXHIBIT E
attached hereto (an "Assignment and Acceptance"), together with any
Note or Notes subject to such assignment;
(iv) such assignment shall not, without the consent of the
applicable Borrower, require such Borrower to file a registration
statement with the Securities and Exchange Commission or apply to or
qualify the Loans or the Notes under the blue sky laws of any state;
and
(v) the assigning Lender shall pay to the Administrative Agent
an assignment fee of $2,500 upon the execution by such Lender of the
Assignment and Acceptance; PROVIDED that no such fee shall be payable
upon any assignment by a Lender to an Affiliate thereof.
Upon such execution, delivery, acceptance and recording, from and after the
effective date specified in each Assignment and Acceptance, which effective
date shall be at least five (5) Business Days after the execution thereof,
(A) the assignee thereunder shall be a party hereto and, to the extent
provided in such Assignment and Acceptance, have the rights and obligations
of a Lender hereby and (B) the Lender thereunder shall, to the extent
provided in such assignment, be released from its obligations under this
Agreement.
(c) RIGHTS AND DUTIES UPON ASSIGNMENT. By executing and delivering
an Assignment and Acceptance, the assigning Lender thereunder and the
assignee thereunder confirm to and agree with each other and the other
parties hereto as follows:
(i) other than the representation and warranty that it is the
legal and beneficial owner of the interest being assigned thereby free
and clear of any adverse claim, such assigning Lender makes no
representation or warranty and assumes no responsibility with respect
to any statements, warranties or representations made in or in
connection with this Agreement or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement or
any other instrument or document furnished pursuant hereto;
(ii) such assigning Lender makes no representation or warranty
and assumes no responsibility with respect to the financial condition
of the Borrowers or their Subsidiaries or the performance or
observance by the Borrowers and their Subsidiaries of any of their
obligations under this Agreement or any other instrument or document
furnished pursuant hereto;
(iii) such assignee confirms that it has received a copy of this
Agreement, together with copies of the financial statements referred
to in Section 5.1(o) and the most recent financial statements
delivered to the Assignor pursuant to Section 6.1 and such other
documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into such Assignment and
Acceptance;
(iv) such assignee will, independently and without reliance upon
any Agent, such assigning Lender or any other Lender, and based on
such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not
taking action under this Agreement;
(v) such assignee confirms that it is an Eligible Assignee;
(vi) such assignee appoints and authorizes each Agent to take
such action as agent on its behalf and to exercise such powers under
this Agreement and the other Loan Documents as are delegated to such
Agent by the terms hereof and thereof, together with such powers as
are reasonably incidental thereto; and
(vii) such assignee agrees that it will perform in accordance with
their terms all of the obligations which by the terms of this
Agreement are required to be performed by it as a Lender.
(d) REGISTER. The Administrative Agent shall maintain a copy of each
Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders and the amount of the
Extensions of Credit with respect to each Lender from time to time (the
"Register"). The entries in the Register shall be conclusive, in the
absence of manifest error, and the Borrowers, the Agents and the Lenders
may treat each person whose name is recorded in the Register as a Lender
hereunder for all purposes of this Agreement. The Register shall be
available for inspection by the Borrowers or Lender at any reasonable time
and from time to time upon reasonable prior notice.
(e) ISSUANCE OF NEW NOTES. Upon its receipt of an Assignment and
Acceptance executed by an assigning Lender and an Eligible Assignee
together with any Note or Notes subject to such assignment and the written
consent to such assignment, the Administrative Agent shall, if such
Assignment and Acceptance has been completed and is substantially in the
form of EXHIBIT E:
(i) accept such Assignment and Acceptance;
(ii) record the information contained therein in the Register;
(iii) give prompt notice thereof to the Lenders and the Borrowers;
and
(iv) promptly deliver a copy of such Assignment and Acceptance to
ACC.
Within five (5) Business Days after receipt of notice, ACC shall execute
and deliver to the Administrative Agent, in exchange for the surrendered
Note or Notes, a new Note or Notes to the order of such Eligible Assignee
in amounts equal to the Commitment assumed by it pursuant to such
Assignment and Acceptance and a new Note or Notes to the order of the
assigning Lender in an amount equal to the Commitment retained by it
hereunder. Such new Note or Notes shall be in an aggregate principal amount
equal to the aggregate principal amount of such surrendered Note or Notes,
shall be dated the effective date of such Assignment and Acceptance and
shall otherwise be in substantially the form of the assigned Notes
delivered to the assigning Lender. Each surrendered Note or Notes shall be
canceled and returned to ACC.
(f) PARTICIPATIONS. Each Lender may, with the consent of the Agents
and ACC, which consents shall not be unreasonably withheld, sell
participations to one or more banks or other entities in all or a portion
of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitment and its Extensions of Credit
and the Notes held by it); PROVIDED that:
(i) each such participation shall be in an amount not less than
$5,000,000;
(ii) such Lender's obligations under this Agreement (including,
without limitation, its Commitment) shall remain unchanged;
(iii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations;
(iv) such Lender shall remain the holder of the Notes held by it
for all purposes of this Agreement;
(v) the Borrowers, the Agents and the other Lenders shall
continue to deal solely and directly with such Lender in connection
with such Lender's rights and obligations under this Agreement;
(vi) such Lender shall not permit such participant the right to
approve any waivers, amendments or other modifications to this
Agreement or any other Loan Document other than waivers, amendments or
modifications which would reduce the principal of or the interest rate
on any Loan, extend the term or increase the amount of the Commitment
of such participant, reduce the amount of any fees to which such
participant is entitled, extend any scheduled payment date for
principal or, except as expressly contemplated hereby or thereby,
release any Collateral or Security Document; and
(vii) any such disposition shall not, without the consent of the
applicable Borrower, require such Borrower to file a registration
statement with the Securities and Exchange Commission to apply to
qualify the Loans or the Notes under the blue sky law of any state.
(g) DISCLOSURE OF INFORMATION; CONFIDENTIALITY. The Agents and the
Lenders shall hold all non-public information obtained pursuant to the Loan
Documents in accordance with their customary procedures for handling
confidential information. Any Lender may, in connection with any
assignment, proposed assignment, participation or proposed participation
pursuant to this Section 13.10, disclose to the assignee, participant,
proposed assignee or proposed participant, any information relating to the
Borrowers furnished to such Lender by or on behalf of the Borrowers;
PROVIDED, that prior to any such disclosure, each such assignee, proposed
assignee, participant or proposed participant shall agree with the
Borrowers or such Lender (which in the case of an agreement with only such
Lender, the Borrowers shall be recognized as third party beneficiaries
thereof) to preserve the confidentiality of any confidential information
relating to the Borrowers received from such Lender.
(h) CERTAIN PLEDGES OR ASSIGNMENTS. Nothing herein shall prohibit
any Lender from pledging or assigning any Note to any Federal Reserve Bank
in accordance with Applicable Law.
SECTION 13.11 AMENDMENTS, WAIVERS AND CONSENTS; RENEWAL.
(a) Except as set forth below, any term, covenant, agreement or
condition of this Agreement or any of the other Loan Documents may be
amended or waived by the Lenders, and any consent given by the Lenders, if,
but only if, such amendment, waiver or consent is in writing signed by the
Required Lenders (or by the Administrative Agent with the consent of the
Required Lenders) and delivered to the Administrative Agent and, in the
case of an amendment, signed by the Borrowers; PROVIDED, that no amendment,
waiver or consent shall (i) increase the amount or extend the time of the
obligation of the Lenders to make Loans, (ii) extend the originally
scheduled time or times of payment of the principal of any Loan or the time
or times of payment of interest on any Loan, (iii) reduce the rate of
interest or fees payable on any Loan, (iv) permit any subordination of the
principal or interest on any Loan, (v) release any Collateral or Security
Document (other than as specifically permitted in this Agreement or the
applicable Security Document) or (vi) amend the provisions of this Section
13.11 or the definition of Required Lenders, without the prior written
consent of each Lender. In addition, no amendment, waiver or consent to
the provisions of Article XIII shall be made without the written consent of
the affected Agents.
SECTION 13.12 PERFORMANCE OF DUTIES. The Borrowers' obligations
under this Agreement and each of the Loan Documents shall be performed by
the applicable Borrower at its sole cost and expense.
SECTION 13.13 INDEMNIFICATION. The Borrowers agree to reimburse each
Agent and the Lenders for all reasonable costs and expenses, including
reasonable counsel, appraisal, or other expert or consultant fees and
disbursements incurred, and to indemnify and hold each Agent and the
Lenders harmless from and against all losses suffered by such Agent and the
Lenders in connection with (a) the exercise by the Agents or the Lenders of
any right or remedy granted to them under this Agreement or any of the
other Loan Documents, (b) any claim, and the prosecution or defense
thereof, arising out of or in any way connected with this Agreement or any
of the other Loan Documents and (c) the collection or enforcement of the
Obligations or any of them; PROVIDED, that the indemnity contained herein
shall not apply to the extent that such losses, claims, damages,
liabilities or other expenses result from the gross negligence or willful
misconduct of such indemnified person; and further provided that, promptly
after the receipt by an indemnified person of notice of any pending or
threatened action with respect to which the indemnified person may claim
indemnification under this Agreement (an "Action"), the indemnified person
shall provide written notice thereof to ACC and ACC shall then be entitled,
at its sole and reasonable discretion, to assume the defense of any such
Action, with counsel reasonably satisfactory to the indemnified person.
After written notice to the indemnified person from ACC of its election to
assume the defense of such Action, ACC shall not be liable to such
indemnified person for any legal expenses or fees of other counsel or any
other expense incurred by such indemnified person in connection with the
defense thereof after such date, except as provided below. The indemnified
person shall cooperate with all reasonable requests of ACC regarding the
defense of any such Action. Notwithstanding ACC's election to assume the
defense thereof, however, the indemnified person shall have the right to
employ separate counsel and to participate in, but not control, the defense
of such action, and ACC shall pay the reasonable fees and expenses of such
separate counsel (provided that with respect to any single Action, ACC
shall not be required to bear the fees and expenses of more than one such
counsel in any single jurisdiction) if (a) the use of counsel chosen by ACC
to represent the indemnified person would present a conflict-of-interest in
the reasonable determination of the indemnified person or such counsel, or
(b) the defendants in or target of any such Action include both the
indemnified person and ACC, and the indemnified person reasonably concluded
that there may be legal defenses available to it that differ from or are in
addition to those available to ACC. ACC shall not be liable for any
settlement of any action effected by an indemnified person without ACC's
prior written consent (which shall not be unreasonably withheld).
SECTION 13.14 ALL POWERS COUPLED WITH INTEREST. All powers of
attorney and other authorizations granted to the Lenders, each Agent and
any Persons designated by such Agent or Lenders pursuant to any provisions
of this Agreement or any of the other Loan Documents shall be deemed
coupled with an interest and shall be irrevocable so long as any of the
Obligations remain unpaid or unsatisfied or the Credit Facility has not
been terminated.
SECTION 13.15 SURVIVAL OF INDEMNITIES. Notwithstanding any
termination of this Agreement, the indemnities to which the Agents and the
Lenders are entitled under the provisions of this Article XIII and any
other provision of this Agreement and the Loan Documents shall continue in
full force and effect and shall protect the Agents and the Lenders against
events arising after such termination as well as before.
SECTION 13.16 TITLES AND CAPTIONS. Titles and captions of Articles,
Sections and subsections in this Agreement are for convenience only, and
neither limit nor amplify the provisions of this Agreement.
SECTION 13.17 SEVERABILITY OF PROVISIONS. Any provision of this
Agreement or any other Loan Document which is prohibited or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective only to
the extent of such prohibition or unenforceability without invalidating the
remainder of such provision or the remaining provisions hereof or thereof
or affecting the validity or enforceability of such provision in any other
jurisdiction.
SECTION 13.18 COUNTERPARTS. This Agreement may be executed in any
number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an
original and shall be binding upon all parties, their successors and
assigns, and all of which taken together shall constitute one and the same
agreement.
SECTION 13.19 ACC AS AGENT FOR OTHER BORROWERS. Each Borrower hereby
appoints and authorizes ACC (a) to provide the Administrative Agent with
all notices with respect to Loans for the benefit of any other Borrower and
all other notices and instructions under this Agreement and (b) to take
such action on behalf of such Borrowers as ACC deems appropriate to obtain
Loans and to exercise such other powers as are reasonably incidental to
carry out the purposes of this Agreement (including without limitation
acceptance of service of process for each other Borrower and Subsidiary
under Section 13.5). This appointment shall be irrevocable and coupled
with an interest.
SECTION 13.20 TERM OF AGREEMENT. This Agreement shall remain in
effect from the Closing Date through and including the date upon which all
Obligations shall have been indefeasibly and irrevocably paid and satisfied
in full. No termination of this Agreement shall affect the rights and
obligations of the parties hereto arising prior to such termination.
C:\TPY\ACC\CRA.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their duly authorized officers, all as of the day and year
first written above.
[CORPORATE SEAL] ACC CORP.
By: /s/ Xxxx X. Xxxxxx
Name:Xxxx X. Xxxxxx
Title: VP-Finance
[CORPORATE SEAL] ACC LONG DISTANCE CORP.
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title:Controller
[CORPORATE SEAL] ACC NATIONAL TELECOM CORP.
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title:Controller
[CORPORATE SEAL] ACC LONG DISTANCE OF MASSACHUSETTS CORP.
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title:Controller
[CORPORATE SEAL] ACC RADIO CORP.
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title:Controller
[CORPORATE SEAL] ACC NATIONAL LONG DISTANCE CORP.
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title:Controller
[CORPORATE SEAL] ACC LONG DISTANCE U.K., LTD.
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Attorney
FIRST UNION NATIONAL BANK OF NORTH CAROLINA,
as Administrative Agent, Managing Agent and
Lender
By: /s/ Xxx X. Xxxxxx
Name: Xxx X. Xxxxxx
Title: Sr. VP
SHAWMUT BANK CONNECTICUT, N.A., as Managing
Agent and Lender
By: /s/ Xxxxxx X. Xxxx
Name: Xxxxxx X. Xxxx
Title: Director
C:\TPY\ACC\CRA.
SCHEDULE 1.1: LENDERS AND COMMITMENTS
Commitment
LENDER COMMITMENT PERCENTAGE
First Union National Bank $17,500,000 50%
of North Carolina
Xxx Xxxxx Xxxxx Xxxxxx, XX-00
000 X. Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Xxxx Xxxxxx
Telephone No.: (000) 0000-0000
Telecopy No.: (000) 000-0000
Shawmut Bank Connecticut, N.A.
000 xxxx Xxxxxx, XXX 397
Xxxxxxxx, Xxxxxxxxxxx 00000 $17,500,00 50%
Attention: Xxxxx Xxxxxxx
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
C:\TPY\ACC\CRA.
SCHEDULE 1.2 : SUBLIMITS
BORROWER SUBLIMIT
ACC U.K. and any Additional Borrower which is a $5,000,000
U.K. Borrower
ACC LEC $2,000,000
ACC, ACC U.S., ACC Mass., ACC Radio, ACC National $35,000,000 LESS outstandings to all other
and any Additional Borrower who is a Domestic Borrowers
Borrower
SCHEDULE 1.3: CANADIAN SUBSIDIARY SECURITY DOCUMENTS
(a) Quebec Security Documents
(i) Hypothec by Canadian Subsidiaries
(ii) Landlord Agreement
(b) Ontario Security Documents
(i) Security Agreement
(ii) Notice of Security Interest in Fixtures
(Toronto Street Property)
(iii)Leasehold Mortgage (Dundas Street)
(iv) Landlord Agreement (Dundas Street)
(v) Acknowledgement of Standard Charges (Dundas Street)
(vi)Leasehold Mortgage (Toronto Street)
(vii)Landlord Agreement (Toronto Street)
(viii)Acknowledgement of Standard Charges
(Toronto Street)
(ix) Share Pledge by ACC Canada
(x)Share Transfer Power of Attorney by ACC Canada
(xi)Confirmation and Consent by ACC Ltd. to Share Pledge
by ACC Canada
(xii)Resolutions of directors of ACC Ltd. authorizing
pledge
(xiii)Share Pledge by ACC Ltd.
(xiv) Share Transfer Power of Attorney By ACC Ltd.
(xv)Confirmation and Consent by ACC Inc. to Share Pledge
by ACC Ltd.
(xvi)Resolutions of directors of ACC Inc. authorizing
Pledge
(xvii)Currency Indemnity Agreement
(c) British Columbia Security Documents
(i) Security Agreement
(ii) Leasehold Mortgage
(iii)Equitable Mortgage
(iv) Landlord Agreement
(v) Statutory Declaration by ACC (re: Leasehold Mortgage)
(vi)Notice of Security Interest in Fixtures
(vii)Acknowledgement of Mortgage Terms
Note: The Registrant agrees to furnish supplementally to the Commission a copy
of any omitted schedules or exhibits to this Agreement upon request.
