Exhibit 10-28
AMENDED AND RESTATED PLEDGE AGREEMENT
THIS AMENDED AND RESTATED PLEDGE AGREEMENT (the "Pledge
Agreement"), dated as of January 14, 1997 is made by ACC NATIONAL LONG
DISTANCE CORP., a Delaware corporation (the "Pledgor"), in favor of
FIRST UNION NATIONAL BANK OF NORTH CAROLINA, a national banking
association (the "Administrative Agent"), as Administrative Agent for
the ratable benefit of itself and the financial institutions (the
"Lenders") as are, or may from time to time become, parties to the
Amended and Restated Credit Agreement (as defined below).
STATEMENT OF PURPOSE
The Pledgor has previously executed and delivered to the
Administrative Agent a Pledge Agreement dated as of July 21, 1995 (the
"Original Pledge Agreement") in connection with the Original Credit
Agreement.
Pursuant to the Amended and Restated Credit Agreement, dated
as of even date herewith (as amended, restated or otherwise modified,
the "Amended and Restated Credit Agreement"), between the Pledgor and
certain Subsidiaries of the Pledgor as Borrowers thereunder
(collectively, the "Borrowers"), the Lenders and the Administrative
Agent, the Lenders will provide Extensions of Credit to the Borrowers as
more specifically described in the Amended and Restated Credit
Agreement.
The Pledgor is the legal and beneficial owner of the shares of
Pledged Stock (as hereinafter defined) issued by the Domestic
Subsidiaries and the Foreign Subsidiaries, as specified on Schedule 1
attached hereto and incorporated herein by reference (collectively, the
"Issuers").
In connection with the transactions contemplated by the
Amended and Restated Credit Agreement and as a condition precedent
thereto, the Lenders have requested that the Pledgor amend and restate
the Original Pledge Agreement, and the Pledgor has agreed to do so
pursuant to the terms of this Pledge Agreement.
NOW, THEREFORE, in consideration of the premises and to induce
the Administrative Agent and the Lenders to enter into and make
available Loans pursuant to the Amended and Restated Credit Agreement,
the Pledgor hereby agrees with the Administrative Agent for the ratable
benefit of itself and Lenders as follows:
1. Defined Terms. Unless otherwise defined herein, terms
which are defined in the Amended and Restated Credit Agreement and used
herein are so used as so defined, and the following terms shall have the
following meanings:
"Code" means the Uniform Commercial Code from
time to time in effect in the State of North
Carolina.
"Collateral" means the Pledged Stock and all
Proceeds.
"Pledge Agreement" means this Amended and
Restated Pledge Agreement, as further amended,
restated or otherwise modified.
"Pledged Stock" means the shares of capital
stock of each Issuer listed on Schedule 1 hereto,
together with all stock certificates, options or
rights of any nature whatsoever that may be issued
or granted by such Issuer to the Pledgor while this
Pledge Agreement is in effect.
"Proceeds" means all "proceeds" as such term
is defined in Section 9-306(1) of the Code on the
date hereof and, in any event, shall include,
without limitation, all dividends or other income
from the Pledged Stock, collections thereon,
proceeds of sale thereof or distributions with
respect thereto.
"Secured Obligations" means the Obligations as
defined in the Amended and Restated Credit
Agreement and any renewals or extensions of any of
such Obligations.
2. Pledge and Grant of Security Interests. The Pledgor
hereby delivers to the Administrative Agent, for the ratable benefit of
itself and the Lenders, all of the Pledged Stock and hereby grants to
the Administrative Agent, for the ratable benefit of itself and the
Lenders, a first priority security interest in such Pledged Stock and
all other Collateral, as collateral security for the prompt and complete
payment and performance when due (whether at the stated maturity, by
acceleration or otherwise) of the Secured Obligations.
3. Stock Powers. Concurrently with the delivery to the
Administrative Agent of each certificate representing one or more shares
of Pledged Stock, the Pledgor shall deliver an undated stock power
covering such certificate, duly executed in blank by the Pledgor with,
if the Administrative Agent so requests, signature guaranteed.
4. Representations and Warranties. To induce the
Administrative Agent and the Lenders to execute the Amended and Restated
Credit Agreement, provide any Extensions of Credit and accept the
security contemplated hereby, the Pledgor hereby represents and warrants
that:
(a) the Pledgor has the corporate power, authority and
legal right to execute and deliver, to perform its obligations
under, and to grant the Lien on the Collateral pursuant to,
this Pledge Agreement and has taken all necessary corporate
action to authorize its execution, delivery and performance
of, and grant of the Lien on the Collateral pursuant to, this
Pledge Agreement;
(b) this Pledge Agreement constitutes a legal, valid and
binding obligation of the Pledgor enforceable against the
Pledgor in accordance with its terms, except as enforceability
may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforcement of
creditors' rights generally and by the availability of
equitable remedies;
(c) the execution, delivery and performance of this
Pledge Agreement will not violate any provision of any
Applicable Law or contractual obligation of the Pledgor and
will not result in the creation or imposition of any Lien on
any of the properties or revenues of the Pledgor pursuant to
any Applicable Law or contractual obligation, except as
contemplated hereby;
(d) except as contemplated in Section 11 hereof, no
consent or authorization of, filing with, or other act by or
in respect of, any arbitrator or Governmental Authority and no
consent of any other Person (including, without limitation,
any stockholder or creditor of the Pledgor or any Issuer), is
required in connection with the execution, delivery,
performance, validity or enforceability against the Pledgor of
this Pledge Agreement;
(e) no litigation, investigation or proceeding of or
before any arbitrator or Governmental Authority is pending or,
to the knowledge of the Pledgor, threatened by or against the
Pledgor or against any of its properties or revenues with
respect to this Pledge Agreement or any of the transactions
contemplated hereby;
(f) the shares of Pledged Stock listed on Schedule 1
constitute all the issued and outstanding shares of all
classes of the capital stock of each of the Domestic
Subsidiaries and constitute 66.66% of all the issued and
outstanding shares of all classes of capital stock of the U.K.
Subsidiaries and Canadian Subsidiaries;
(g) all the shares of the Pledged Stock have been duly
and validly issued and are fully paid and nonassessable;
(h) the Pledgor is the record and beneficial owner of,
and has good and marketable title to, the Pledged Stock listed
on Schedule 1, free of any and all Liens or options in favor
of, or claims of, any other Person, except the Lien created by
this Pledge Agreement; and
(i) upon delivery to the Administrative Agent of the
stock certificates evidencing the Pledged Stock, the Lien
granted pursuant to this Pledge Agreement will constitute a
valid, perfected first priority Lien on the Pledged Stock and
the Proceeds related thereto, enforceable as such against all
creditors of the Pledgor and any Persons purporting to
purchase any of the Pledged Stock from the Pledgor.
5. Certain Covenants. The Pledgor covenants and agrees with
the Administrative Agent for the ratable benefit of itself and the
Lenders that, from and after the date of this Pledge Agreement until the
Secured Obligations are paid in full and the Commitments are terminated:
(a) If the Pledgor shall, as a result of its ownership
of the Pledged Stock, become entitled to receive or shall
receive any stock certificate (including, without limitation,
any certificate representing a stock dividend or a
distribution in connection with any reclassification, increase
or reduction of capital or any certificate issued in
connection with any reorganization), option or rights, whether
in addition to, in substitution of, as a conversion of, or in
exchange for any shares of the Pledged Stock, or otherwise in
respect thereof, the Pledgor shall accept the same as the
agent of the Administrative Agent, hold the same in trust for
the Administrative Agent and deliver the same forthwith to the
Administrative Agent in the exact form received, duly indorsed
by the Pledgor to the Administrative Agent, if required,
together with an undated stock power covering such certificate
duly executed in blank by the Pledgor and with, if the
Administrative Agent so requests, signature guaranteed, to be
held by the Administrative Agent, subject to the terms hereof,
as additional collateral security for the Secured Obligations;
provided, that in no event shall more than 66.66% of all the
issued and outstanding shares of all classes of capital stock
of each of the Canadian Subsidiaries and U.K. Subsidiaries
constitute collateral security hereunder. In addition, any
sums paid upon or in respect of the Pledged Stock upon the
liquidation or dissolution of any Issuer shall be held by the
Administrative Agent as additional collateral security for the
Secured Obligations.
(b) Without the prior written consent of the
Administrative Agent, the Pledgor will not (i) vote to enable,
or take any other action to permit, any Issuer to issue any
stock or other equity securities of any nature or to issue any
other securities convertible into or granting the right to
purchase or exchange for any stock or other equity securities
of any nature of such Issuer, (ii) sell, assign, transfer,
exchange, or otherwise dispose of, or grant any option with
respect to, the Pledged Stock, or (iii) create, incur or
permit to exist any Lien or option in favor of, or any claim
of any Person with respect to, any of the Collateral, or any
interest therein, except for the Lien provided for by this
Pledge Agreement. The Pledgor will defend the right, title
and interest of the Administrative Agent in and to the
Collateral against the claims and demands of all Persons
whomsoever.
(c) At any time and from time to time, upon the written
request of the Administrative Agent, and at the sole expense
of the Pledgor, the Pledgor will promptly and duly execute and
deliver such further instruments and documents and take such
further actions as the Administrative Agent may reasonably
request for the purposes of obtaining or preserving the full
benefits of this Pledge Agreement and of the rights and powers
herein granted. If any amount payable under or in connection
with any of the Collateral shall be or become evidenced by any
promissory note, other instrument or chattel paper, such note,
instrument or chattel paper shall be immediately delivered to
the Administrative Agent, duly endorsed in a manner
satisfactory to the Administrative Agent, to be held as
Collateral pursuant to this Pledge Agreement.
(d) The Pledgor agrees to pay, and to save the
Administrative Agent and the Lenders harmless from, any and
all liabilities with respect to, or resulting from any delay
in paying, any and all stamp, excise, sales or other similar
taxes which may be payable or determined to be payable with
respect to any of the Collateral or in connection with any of
the transactions contemplated by this Pledge Agreement.
(e) On or prior to the formation or acquisition of any
Subsidiary of the Pledgor, the Pledgor agrees to execute such
amendments and supplements to this Pledge Agreement, including
without limitation the Pledge Agreement Supplement attached
hereto, and such other documents and instruments and to take
any and all actions, all as shall be necessary, in the
reasonable judgment of the Administrative Agent, to pledge the
Pledgor's interest therein to the Administrative Agent for the
ratable benefit of itself and the Lenders.
(f) Without the prior written consent of the
Administrative Agent, the Pledgor will not sell, assign,
transfer, exchange, or otherwise dispose of, or grant any
option with respect to, or create, incur or permit to exist
any Lien or option in favor of, or any claim of any Person
with respect to, any of the shares of capital stock of the
U.K. Borrowers or Canadian Borrowers owned by the Pledgor but
not pledged hereunder, or any interest therein, except as
otherwise permitted pursuant to Section 10.3 or Section 10.4
of the Amended and Restated Credit Agreement.
6. Cash Dividends; Voting Rights. Unless an Event of
Default shall have occurred and be continuing and the Administrative
Agent shall have given notice to the Pledgor of the Administrative
Agent's intent to exercise its rights pursuant to Section 7 below, the
Pledgor shall be permitted to receive all cash dividends paid in
accordance with the terms of the Amended and Restated Credit Agreement
in respect of the Pledged Stock and to exercise all voting and corporate
rights with respect to the Pledged Stock; provided, that no vote shall
be cast or corporate right exercised or other action taken which would
impair the Collateral or which would be inconsistent with or result in
any violation of any provision of the Amended and Restated Credit
Agreement, the Notes, any other Loan Documents or this Pledge Agreement.
7. Rights of the Administrative Agent.
(a) If an Event of Default shall occur and be continuing and
the Administrative Agent shall give notice of its intent to exercise
such rights to the Pledgor, (i) the Administrative Agent shall have the
right to receive any and all cash dividends paid in respect of the
Pledged Stock and make application thereof to the Secured Obligations,
in the order set forth in Section 10 of the Security Agreement and (ii)
all shares of the Pledged Stock shall be registered in the name of the
Administrative Agent or its nominee, and the Administrative Agent or its
nominee may thereafter exercise (A) all voting, corporate and other
rights pertaining to such shares of the Pledged Stock at any meeting of
shareholders of the applicable Issuer or otherwise and (B) any and all
rights of conversion, exchange, subscription and any other rights,
privileges or options pertaining to such shares of the Pledged Stock as
if it were the absolute owner thereof (including, without limitation,
the right to exchange at its discretion any and all of the Pledged Stock
upon the merger, consolidation, reorganization, recapitalization or
other fundamental change in the corporate structure of the applicable
Issuer, or upon the exercise by the Pledgor or the Administrative Agent
of any right, privilege or option pertaining to such shares of the
Pledged Stock, and in connection therewith, the right to deposit and
deliver any and all of the Pledged Stock with any committee, depositary,
transfer agent, registrar or other designated agency upon such terms and
conditions as it may determine), all without liability except to account
for property actually received by it, but the Administrative Agent shall
have no duty to the Pledgor to exercise any such right, privilege or
option and shall not be responsible for any failure to do so or delay in
so doing.
(b) The rights of the Administrative Agent and the Lenders
hereunder shall not be conditioned or contingent upon the pursuit by the
Administrative Agent or any Lender of any right or remedy against the
Pledgor or against any other Person which may be or become liable in
respect of all or any part of the Secured Obligations or against any
collateral security therefor, guarantee therefor or right of offset with
respect thereto. Neither the Administrative Agent nor any Lender shall
be liable for any failure to demand, collect or realize upon all or any
part of the Collateral or for any delay in doing so, nor shall the
Administrative Agent be under any obligation to sell or otherwise
dispose of any Collateral upon the request of the Pledgor or any other
Person or to take any other action whatsoever with regard to the
Collateral or any part thereof.
8. Remedies. If an Event of Default shall occur and be
continuing, with the consent of the Required Lenders, the Administrative
Agent may, and upon the request of the Required Lenders, the
Administrative Agent shall, exercise on behalf of itself and the
Lenders, all rights and remedies granted in this Pledge Agreement and in
any other instrument or agreement securing, evidencing or relating to
the Secured Obligations, and in addition thereto, all rights and
remedies of a secured party under the Code. Without limiting the
generality of the foregoing with regard to the scope of the
Administrative Agent's remedies, the Administrative Agent, without
demand of performance or other demand, presentment, protest,
advertisement or notice of any kind (except any notice required by law
referred to below) to or upon the Pledgor, any Issuer or any other
Person (all and each of which demands, defenses, advertisements and
notices are hereby waived), may in such circumstances forthwith collect,
receive, appropriate and realize upon the Collateral, or any part
thereof, and/or may forthwith sell, assign, give option or options to
purchase or otherwise dispose of and deliver the Collateral or any part
thereof (or contract to do any of the foregoing), in one or more parcels
at public or private sale or sales, in the over-the-counter market, at
any exchange, broker's board or office of the Administrative Agent or
any Lender or elsewhere upon such terms and conditions as it may deem
advisable and at such prices as it may deem best, for cash or on credit
or for future delivery without assumption of any credit risk. The
Administrative Agent or any Lender shall have the right upon any such
public sale or sales, and, to the extent permitted by law, upon any such
private sale or sales, to purchase the whole or any part of the
Collateral so sold, free of any right or equity of redemption in the
Pledgor, which right or equity is hereby waived or released. The
Administrative Agent shall apply any Proceeds from time to time held by
it and the net proceeds of any such collection, recovery, receipt,
appropriation, realization or sale, after deducting all reasonable costs
and expenses of every kind incurred in respect thereof or incidental to
the care or safekeeping of any of the Collateral or in any way relating
to the Collateral or the rights of the Administrative Agent and the
Lenders hereunder, including, without limitation, reasonable attorneys'
fees and disbursements of counsel thereto, to the payment in whole or in
part of the Secured Obligations, in the order set forth in Section 10 of
the Security Agreement, and only after such application and after the
payment by the Administrative Agent of any other amount required by any
provision of law, including, without limitation, Section 9-504(1)(c) of
the Code, need the Administrative Agent account for the surplus, if any,
to the Pledgor. To the extent permitted by applicable law, the Pledgor
waives all claims, damages and demands it may acquire against the
Administrative Agent or any Lender arising out of the exercise by them
of any rights hereunder. If any notice of a proposed sale or other
disposition of Collateral shall be required by law, such notice shall be
deemed reasonable and proper if given at least 10 days before such sale
or other disposition. The Pledgor further waives and agrees not to
assert any rights or privileges which it may acquire under Section 9-112
of the Code.
9. Registration Rights; Private Sales.
(a) If the Administrative Agent shall determine to exercise
its right to sell any or all of the Pledged Stock pursuant to Section 8
hereof, and if in the opinion of the Administrative Agent it is
necessary or advisable to have the Pledged Stock, or that portion
thereof to be sold, registered under the provisions of the Securities
Act of 1933, as amended (the "Securities Act"), the Pledgor will cause
the applicable Issuer to (i) execute and deliver, and cause the
directors and officers of the applicable Issuer to execute and deliver,
all such instruments and documents, and do or cause to be done all such
other acts as may be, in the opinion of the Administrative Agent,
necessary or advisable to register the Pledged Stock, or that portion
thereof to be sold, under the provisions of the Securities Act, (ii) to
use its best efforts to cause the registration statement relating
thereto to become effective and to remain effective for a period of one
year from the date of the first public offering of the Pledged Stock, or
that portion thereof to be sold, and (iii) to make all amendments
thereto and/or to the related prospectus which, in the opinion of the
Administrative Agent, are necessary or advisable, all in conformity with
the requirements of the Securities Act and the rules and regulations of
the Securities and Exchange Commission applicable thereto. The Pledgor
agrees to cause the applicable Issuer to comply with the provisions of
the securities or "Blue Sky" laws of any and all jurisdictions which the
Administrative Agent shall designate and to make available to its
security holders, as soon as practicable, an earnings statement (which
need not be audited) which will satisfy the provisions of Section 11(a)
of the Securities Act.
(b) The Pledgor recognizes that the Administrative Agent may
be unable to effect a public sale of any or all the Pledged Stock, by
reason of certain prohibitions contained in the Securities Act and
applicable state securities laws or otherwise, and may be compelled to
resort to one or more private sales thereof to a restricted group of
purchasers which will be obliged to agree, among other things, to
acquire such securities for their own account for investment and not
with a view to the distribution or resale thereof. The Pledgor
acknowledges and agrees that any such private sale may result in prices
and other terms less favorable than if such sale were a public sale and,
notwithstanding such circumstances, agrees that, in the event the
Administrative Agent is unable to effect a public sale, any such private
sale shall be deemed to have been made in a commercially reasonable
manner. The Administrative Agent shall be under no obligation to delay
a sale of any of the Pledged Stock for the period of time necessary to
permit the applicable Issuer to register such securities for public sale
under the Securities Act, or under applicable state securities laws,
even if the applicable Issuer would agree to do so.
(c) The Pledgor further agrees to use its best efforts to do
or cause to be done all such other acts as may be necessary to make such
sale or sales of all or any portion of the Collateral pursuant to this
Section 9 valid and binding and in compliance with any and all other
Applicable Laws. The Pledgor further agrees that a breach of any of the
covenants contained in this Section 9 will cause irreparable injury to
the Administrative Agent and the Lenders not compensable in damages,
that the Administrative Agent and the Lenders have no adequate remedy at
law in respect of such breach and, as a consequence, that each and every
covenant contained in this Section 9 shall be specifically enforceable
against the Pledgor, and the Pledgor hereby waives and agrees not to
assert any defenses against an action for specific performance of such
covenants except for a defense that no Event of Default has occurred
under the Amended and Restated Credit Agreement.
10. Amendments, etc. With Respect to the Secured Obligations.
The Pledgor shall remain obligated hereunder, and the Collateral shall
remain subject to the Lien granted hereby, notwithstanding that, without
any reservation of rights against the Pledgor, and without notice to or
further assent by the Pledgor, any demand for payment of any of the
Secured Obligations made by the Administrative Agent or any Lender may
be rescinded by the Administrative Agent or such Lender, and any of the
Secured Obligations continued, and the Secured Obligations, or the
liability of the Pledgor or any other Person upon or for any part
thereof, or any collateral security or guarantee therefor or right of
offset with respect thereto, may, from time to time, in whole or in
part, be renewed, extended, amended, modified, accelerated, compromised,
waived, surrendered, or released by the Administrative Agent or any
Lender, and the Amended and Restated Credit Agreement, the Notes, any
other Loan Documents and any other documents executed and delivered in
connection therewith may be amended, modified, supplemented or
terminated, in whole or part, as the Lenders (or the Required Lenders,
as the case may be) may deem advisable from time to time, and any
guarantee, right of offset or other collateral security at any time held
by the Administrative Agent or any Lender for the payment of the Secured
Obligations may be sold, exchanged, waived, surrendered or released.
Neither the Administrative Agent nor any Lender shall have any
obligation to protect, secure, perfect or insure any other Lien at any
time held by it as security for the Secured Obligations or any property
subject thereto. The Pledgor waives any and all notice of the creation,
renewal, extension or accrual of any of the Secured Obligations and
notice of or proof of reliance by the Administrative Agent or any Lender
upon this Pledge Agreement; the Secured Obligations, and any of them,
shall conclusively be deemed to have been created, contracted or
incurred in reliance upon this Pledge Agreement; and all dealings
between the Pledgor, on the one hand, and the Administrative Agent and
the Lenders, on the other, shall likewise be conclusively presumed to
have been had or consummated in reliance upon this Pledge Agreement.
The Pledgor waives diligence, presentment, protest, demand for payment
and notice of default or nonpayment to or upon the Pledgor with respect
to any of the Secured Obligations.
11. Regulatory Approval. The Pledgor will, at its expense,
promptly execute and deliver, or cause the execution and delivery of,
all applications, certificates, instruments, registration statements and
all other documents and papers the Administrative Agent may reasonably
request or as may be required by law in connection with the obtaining of
any consent, approval, registration, qualification or authorization of
the FCC, CRTC, DTI, OFTEL, any PUC or of any other Person necessary or
appropriate for the effective exercise of any rights under this Pledge
Agreement. Without limiting the generality of the foregoing, if an
Event of Default shall have occurred and be continuing, the Pledgor
shall take any action which the Administrative Agent may reasonably
request in order to transfer and assign to the Administrative Agent, or
to such one or more third parties as the Administrative Agent may
designate, or to a combination of the foregoing, each Communications
License and PUC Authorization. To enforce the provisions of this
Section, upon the occurrence and during the continuance of an Event of
Default, the Administrative Agent is empowered to request the
appointment of a receiver from any court of competent jurisdiction.
Such receiver shall be instructed to seek from the FCC, CRTC, DTI, OFTEL
and any applicable PUC an involuntary transfer of control of each such
Communications License and PUC Authorization for the purpose of seeking
a bona fide purchaser to whom control will ultimately be transferred.
The Pledgor hereby agrees to authorize such an involuntary transfer of
control upon the request of the receiver so appointed and, if the
Pledgor shall refuse to authorize the transfer, its approval may be
required by the court. Upon the occurrence and during the continuance
of an Event of Default, the Pledgor shall further use its best efforts
to assist in obtaining approval of the FCC, CRTC, DTI, OFTEL and any
applicable PUC, if required, for any action or transactions contemplated
by this Pledge Agreement including, without limitation, the preparation,
execution and filing with the FCC, CRTC, DTI, OFTEL and any applicable
PUC of the assignor's or transferor's portion of any application or
applications for consent to the assignment of any Communications License
and PUC Authorizations or transfer of control necessary or appropriate
under the rules and regulations of the FCC, CRTC, DTI, OFTEL or any PUC
for the approval of the transfer or assignment of any portion of the
Collateral, together with any Communications License and applicable PUC
Authorizations. The Pledgor acknowledges that the assignment or
transfer of each Communications License and applicable PUC
Authorizations is integral to the Administrative Agent's and the
Lenders' realization of the value of the Collateral, that there is no
adequate remedy at law for failure by the Pledgor to comply with the
provisions of this Section and that such failure would cause irreparable
injury not adequately compensable in damages, and therefore agrees that
each and every covenant contained in this Section may be specifically
enforced, and the Pledgor hereby waives and agrees not to assert any
defenses against an action for specific performance of such covenants.
12. Limitation on Duties Regarding Collateral. The
Administrative Agent's sole duty with respect to the custody,
safekeeping and physical preservation of the Collateral in its
possession, under Section 9-207 of the Code or otherwise, shall be to
deal with it in the same manner as the Administrative Agent deals with
similar securities and property for its own account. Neither the
Administrative Agent, any Lender nor any of their respective directors,
officers, employees or agents shall be liable for failure to demand,
collect or realize upon any of the Collateral or for any delay in doing
so or shall be under any obligation to sell or otherwise dispose of any
Collateral upon the request of the Pledgor or otherwise.
13. Powers Coupled with an Interest. All authorizations and
agencies herein contained with respect to the Collateral constitute
irrevocable powers coupled with an interest.
14. Severability. Any provision of this Pledge Agreement
which is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof,
and any such prohibition or unenforceability in any jurisdiction shall
not invalidate or render unenforceable such provision in any other
jurisdiction.
15. Paragraph Headings. The paragraph headings used in this
Pledge Agreement are for convenience of reference only and are not to
affect the construction hereof or be taken into consideration in the
interpretation hereof.
16. No Waiver; Cumulative Remedies. Neither the
Administrative Agent nor any Lender shall by any act (except by a
written instrument pursuant to Section 17 hereof) be deemed to have
waived any right or remedy hereunder or to have acquiesced in any
Default or Event of Default or in any breach of any of the terms and
conditions hereof. No failure to exercise, nor any delay in exercising,
on the part of the Administrative Agent or any Lender, any right, power
or privilege hereunder shall operate as a waiver thereof. No single or
partial exercise of any right, power or privilege hereunder shall
preclude any other or further exercise thereof or the exercise of any
other right, power or privilege. A waiver by the Administrative Agent
or any Lender of any right or remedy hereunder on any one occasion shall
not be construed as a bar to any right or remedy which the
Administrative Agent or such Lender would otherwise have on any future
occasion. The rights and remedies herein provided are cumulative, may
be exercised singly or concurrently and are not exclusive of any other
rights or remedies provided by law.
17. Waivers and Amendments; Successors and Assigns; Governing
Law. None of the terms or provisions of this Pledge Agreement may be
amended, supplemented or otherwise modified except by a written
instrument executed by the Pledgor and the Administrative Agent;
provided that any consent by the Administrative Agent to any waiver,
amendment, supplement or modification hereto shall be subject to
approval thereof by the Lenders or Required Lenders, as applicable, in
accordance with Section 14.11 of the Amended and Restated Credit
Agreement. This Pledge Agreement shall be binding upon the successors
and assigns of the Pledgor and shall inure to the benefit of the
Administrative Agent and the Lenders and their respective successors and
assigns. This Pledge Agreement shall be governed by, and construed and
interpreted in accordance with, the laws of the State of North Carolina.
18. Notices. All notices and communications hereunder shall
be given to the addresses and otherwise in accordance with Section 14.1
of the Amended and Restated Credit Agreement.
19. Irrevocable Authorization and Instruction to Issuers.
The Pledgor hereby authorizes and instructs each Issuer to comply with
any instruction received by it from the Administrative Agent in writing
that (a) states that an Event of Default has occurred and is continuing
and (b) is otherwise in accordance with the terms of this Pledge
Agreement, without any other or further instructions from the Pledgor,
and the Pledgor agrees that such Issuer shall be fully protected in so
complying.
20. Authority of Administrative Agent. The Pledgor
acknowledges that the rights and responsibilities of the Administrative
Agent under this Pledge Agreement with respect to any action taken by
the Administrative Agent or the exercise or non-exercise by the
Administrative Agent of any option, voting right, request, judgment or
other right or remedy provided for herein or resulting or arising out of
this Pledge Agreement shall, as between the Administrative Agent and the
Lenders, be governed by the Amended and Restated Credit Agreement and by
such other agreements with respect thereto as may exist from time to
time among them, but, as between the Administrative Agent and the
Pledgor, the Administrative Agent shall be conclusively presumed to be
acting as agent for itself and the Lenders with full and valid authority
so to act or refrain from acting, and neither the Pledgor nor any Issuer
shall be under any obligation, or entitlement, to make any inquiry
respecting such authority.
21. Consent to Jurisdiction. The Pledgor hereby irrevocably
consents 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 or any dispute in connection with this
Pledge Agreement, any rights or obligations hereunder, or the
performance of such rights and obligations. The Pledgor hereby
irrevocably consents to the service of a summons and complaint and other
process in any action, claim or proceeding brought by the Administrative
Agent or any Lender in connection with this Pledge Agreement, any rights
or obligations hereunder, or the performance of such rights and
obligations, on behalf of itself or its property, in the manner provided
in Section 14.1 of the Amended and Restated Credit Agreement. Nothing
in this Section 21 shall affect the right of the Administrative Agent or
any Lender to serve legal process in any other manner permitted by
Applicable Law or affect the right of the Administrative Agent or any
Lender to bring any action or proceeding against the Pledgor or its
properties in the courts of any other jurisdictions.
22. Binding Arbitration; Waiver of Jury Trial.
(a) Binding Arbitration. If in the reasonable determination
of the Administrative Agent and its counsel, Section 22(b) is
unenforceable under North Carolina law unless paired with a binding
arbitration provision, then upon demand of any party made within ninety
(90) days after institution of any judicial proceeding, any dispute,
claim or controversy between a Lender (or group of Lenders) and a
Borrower (or group of Borrowers) (but not any dispute, claim or
controversy among any Lenders not involving any Borrower) arising out
of, connected with or relating to this Pledge Agreement ("Disputes"),
between or among parties to this Pledge Agreement shall be resolved by
binding arbitration as provided herein. Institution of a judicial
proceeding by a party does not waive the right of that party to demand
arbitration hereunder. Disputes may include, without limitation, tort
claims, counterclaims, claims brought as class actions, claims arising
from supplements to this Pledge Agreement executed in the future, or
claims concerning any aspect of the past, present or future
relationships arising out of or connected with this Pledge Agreement.
Arbitration shall be conducted under and governed by the Commercial
Financial Disputes Arbitration Rules (the "Arbitration Rules") of the
American Arbitration Association and Title 9 of the U.S. Code. All
arbitration hearings shall be conducted in Charlotte, North Carolina.
The expedited procedures set forth in Rule 51, et seq. of the
Arbitration Rules shall be applicable to claims of less than $1,000,000.
All applicable statutes of limitation shall apply to any Dispute. A
judgment upon the award may be entered in any court having jurisdiction.
The panel from which all arbitrators are selected shall be comprised of
licensed attorneys. The single arbitrator selected for expedited
procedure shall be a retired judge from the highest court of general
jurisdiction, state or federal, of the state where the hearing will be
conducted.
[CONTINUES ON THE FOLLOWING PAGE NO. 14]
(b) Jury Trial. EACH AGENT, LENDER AND THE PLEDGOR 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.
(c) Preservation of Certain Remedies. Notwithstanding the
preceding binding arbitration provisions, the parties hereto preserve,
without diminution, certain remedies that such Persons may employ or
exercise freely, either alone, in conjunction with or during a Dispute.
Each such Person shall have and hereby reserves the right to proceed in
any court of proper jurisdiction or by self help to exercise or
prosecute the following remedies: (i) all rights to foreclose against
any real or personal property or other security by exercising a power of
sale granted in this Pledge Agreement or under applicable law or by
judicial foreclosure and sale, (ii) all rights of self help including
peaceful occupation of property and collection of rents, set off, and
peaceful possession of property, (iii) obtaining provisional or
ancillary remedies including injunctive relief, sequestration,
garnishment, attachment, appointment of receiver and in filing an
involuntary bankruptcy proceeding, and (iv) when applicable, a judgment
by confession of judgment. Preservation of these remedies does not
limit the power of an arbitrator to grant similar remedies that may be
requested by a party in a Dispute.
IN WITNESS WHEREOF, the undersigned has caused this Pledge
Agreement to be duly executed and delivered as of the date first above
written.
[CORPORATE SEAL] ACC NATIONAL LONG DISTANCE CORP.
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Vice President
ACKNOWLEDGEMENT AND CONSENT
Each Issuer of Pledged Stock referred to in the foregoing Pledge
Agreement hereby acknowledges receipt of a copy thereof and agrees to be
bound thereby and to comply with the terms thereof insofar as such terms
are applicable to it. Each Issuer agrees to notify the Administrative
Agent promptly in writing of the occurrence of any of the events
described in Section 5(a) of the Pledge Agreement. Each United States
Subsidiary further agrees that the terms of Section 9 of the Pledge
Agreement shall apply to it, mutatis mutandis, with respect to all
actions that may be required of it under or pursuant to or arising out
of Section 9 of the Pledge Agreement.
ACC LONG DISTANCE OF MASSACHUSETTS CORP.
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Vice President
SCHEDULE 1
To Pledge
Agreement
DESCRIPTION OF PLEDGED STOCK
[ACC NATIONAL AGREEMENT]
Issuer Class of Stock Certificate No. No. of Shares
ACC Long
Distance of
Massachusetts
Corp. Common 2 1
PLEDGE AGREEMENT SUPPLEMENT, dated as of _______________, 199_
(the "Supplement"), made by _________, a ________________ corporation
(the "Pledgor"), in favor of First Union National Bank of North
Carolina, a national banking corporation, as Administrative Agent (in
such capacity, the "Administrative Agent"), under the Amended and
Restated Credit Agreement (as defined in the Pledge Agreement referred
to below) for the benefit of itself and the Lenders (as so defined).
1. Reference is hereby made to that Amended and Restated
Pledge Agreement, dated as of ___________ ___, 1996, made by the Pledgor
in favor of the Administrative Agent (as further amended, restated or
otherwise modified, the "Pledge Agreement"). This Supplement
supplements the Pledge Agreement, forms a part thereof and is subject to
the terms thereof. Terms defined in the Pledge Agreement are used
herein as therein defined.
2. The Pledgor hereby confirms and reaffirms the security
interest in the Collateral granted to the Administrative Agent for the
ratable benefit of itself and the Lenders under the Pledge Agreement,
and, as additional collateral security for the prompt and complete
payment when due (whether at stated maturity, by acceleration or
otherwise) of the Secured Obligations and in order to induce the Lenders
to make their Loans under the Amended and Restated Credit Agreement, the
Pledgor hereby delivers to the Administrative Agent, for the benefit of
the Lenders, [all of the issued and outstanding shares of capital stock
of [INSERT NAME OF NEW DOMESTIC SUBSIDIARY]] or [66.66% of the issued
and outstanding shares of capital stock of [INSERT NAME OF NEW CANADIAN
OR U.K. SUBSIDIARY]] (the "New Issuer") listed below, together with all
stock certificates, options, or rights of any nature whatsoever which
may be issued or granted by the New Issuer in respect to such stock
which the Pledge Agreement, as supplemented hereby, is in force (the
"Additional Pledged Stock"; as used in the Pledge Agreement as
supplemented by this Supplement, "Pledged Stock" shall be deemed to
include the Additional Pledged Stock) and hereby grants to the
Administrative Agent, for the ratable benefit of itself and the Lenders,
a first priority security interest in the Additional Pledged Stock and
all Proceeds thereof.
3. The Pledgor hereby represents and warrants that the
representations and warranties contained in paragraph 5 of the Pledge
Agreement are true and correct on the date of this Supplement with
references therein to the "Pledged Stock" to include the Additional
Pledged Stock, with references therein to the "Issuer" to include the
New Issuer, and with references to the "Pledge Agreement" to mean the
Pledge Agreement as supplemented by this Supplement.
4. The Pledgor shall deliver to the Administrative Agent the
Acknowledgement and Consent attached hereto duly executed by the New
Issuer. The Additional Pledged Stock pledged hereby is as follows which
Pledged Stock shall be deemed part of Schedule 1 thereto:
DESCRIPTION OF PLEDGED STOCK
Issuer Class of Stock Certificate No. No. of Shares
New Issuer
5. The Pledgor hereby agrees to deliver to the Administrative
Agent such certificates and other documents and take such other action
as shall be reasonably requested by the Administrative Agent in order to
effectuate the terms hereof and the Pledge Agreement.
IN WITNESS WHEREOF, the undersigned has caused this Supplement
to be duly executed under seal and delivered as of the date first above
written.
[CORPORATE SEAL] _____________________________
By:__________________________
Name:_____________________
Title:____________________
ACKNOWLEDGEMENT AND CONSENT OF NEW ISSUER
The undersigned hereby acknowledges receipt of a copy of the
foregoing Supplement and the Amended and Restated Pledge Agreement
referred to therein (the "Pledge Agreement"). The undersigned agrees
for the benefit of the Administrative Agent and the Lenders as follows:
1. The undersigned will be bound by the terms of the Pledge
Agreement and will comply with such terms insofar as such terms are
applicable to the undersigned.
2. The undersigned will notify the Administrative Agent
promptly in writing of the occurrence of any of the events described in
Section 5(a) of the Pledge Agreement.
[3. The Issuer further agrees that the terms of Section 9 of
the Pledge Agreement shall apply to it, mutatis mutandis, with respect
to all actions that may be required of it under or pursuant to or
arising out of Section 9 of the Pledge Agreement.] [ONLY INCLUDE FOR
DOMESTIC SUBSIDIARIES]
[NAME OF NEW ISSUER]
By:_________________________________
Name:____________________________
Title:___________________________
