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EXHIBIT 4.7
ESCROW AND DISBURSEMENT AGREEMENT
This escrow and disbursement agreement (this "Agreement"),
dated as of July 23, 1997, among The Bank of New York, as escrow agent (the
"Escrow Agent"), The Chase Manhattan Bank, as Trustee (the "Trustee") under the
Indenture (as defined herein), and American Communications Services, Inc., a
Delaware corporation (the "Company").
RECITALS
A. Pursuant to the Indenture, dated as of July 23, 1997 (the
"Indenture"), between the Company and the Trustee, the Company is issuing
$220,000,000 aggregate principal amount of its 13-3/4% Senior Notes due 2007,
including any notes issued in exchange therefor in connection with one or more
registration statements (the "Notes").
B. As security for certain of its obligations under the Notes
and the Indenture, the Company hereby grants to the Trustee, for the benefit of
the holders of the Notes, a security interest, subject to and pending
disbursement pursuant to this Agreement, in the Escrow Account (as defined
herein).
C. The parties have entered into this Agreement in order to
set forth the conditions upon which, and the manner in which, funds will be
disbursed from the Escrow Account and released from the security interest and
lien described above.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows;
1. Defined Terms. In addition to any other defined terms used herein,
the following terms shall constitute defined terms for purposes of this
Agreement and shall have the meanings set forth below:
"Affiliate" means, as to any Person (as defined in the Indenture),
any other Person which directly or indirectly controls, or is under common
control with, or is controlled by, such Person; provided that each Unrestricted
Subsidiary (as defined in the Indenture) shall be deemed to be an Affiliate of
the Company and of each other Subsidiary (as defined in the Indenture) of the
Company; provided, further, neither the Company nor any of its Restricted
Subsidiaries (as defined in the Indenture) shall be deemed to be Affiliates of
each other. For purposes this definition, "control" (including, with correlative
meanings, the terms "controlling," "under common control with" and "controlled
by"),
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and as used with respect to any Person, shall mean the possession,
directly or indirectly, of the power to direct or cause the direction of
management or policies of such Person, whether through the ownership of Voting
Stock (as defined in the Indenture), by agreement or otherwise; provided that
beneficial ownership of 10 percent or more of the Voting Stock of a Person shall
be deemed to be control.
"Applied" means that disbursed funds have been applied (i) to
the payment of interest on the Notes, (ii) to the payment of principal of and
premium, if any, on the Notes, upon a repurchase or redemption thereof in
accordance with Section 4.07 of the Indenture; (iii) to the release to the
Company of interest payments on Retired Notes; (iv) to the release to the
Company following payment of the fifth interest payment in accordance with
Section 3(d) hereof; or (v) to any combination of the foregoing.
"Available Funds" means (A) the sum of (i) the Initial Escrow
Amount and (ii) interest earned or dividends paid on the funds in the Escrow
Account (including holdings of Marketable Securities), less (B) the aggregate
disbursements previously made pursuant to this Agreement.
"Business Day" shall have the meaning given such term in the
Indenture.
"Collateral" shall have the meaning given in Section 6(a)
hereof.
"Eligible Institution" means a commercial banking institution
that has combined capital and surplus of not less than $500 million or its
equivalent in foreign currency, whose debt is rated "A" (or higher) according to
Standard & Poor's Ratings Services ("S&P") or Xxxxx'x Investors Service, Inc.
("Moody's") at the time as of which any investment or rollover therein is made.
"Escrow Account" shall mean an escrow account established
pursuant to Section 2 hereof.
"Escrow Account Statement" shall have the meaning given in
section 2(f) hereof.
"Initial Escrow Amount" shall mean $70,000,000 of the proceeds
from the offering of the Notes.
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"Interest Payment Date" means January 15 and July 15 of each
year, commencing on January 15, 1998, or if any such day is not a Business Day,
the next succeeding Business Day.
"Issue Date" means July 23, 1997.
"Marketable Securities" means
(i) U.S. Government Securities maturing not more than two
years after the date of acquisition;
(ii) any certificate of deposit maturing not more than 270
days after the date of acquisition issued by or time
deposit of an Eligible Institution;
(iii) commercial paper maturing not more than 270 days after
the date of acquisition issued by a corporation (other
than an Affiliate of the Company) with a rating, at the
time as of which any investment therein is made, of "A-1"
(or higher) according to S&P's or "P-1" (or higher)
according to Moody's;
(iv) any banker's acceptances or money market deposit accounts
issued or offered by an Eligible Institution; and
(v) any fund investing exclusively in investments of the
types described in clauses (i) through (iv) above.
"Payment Notice and Disbursement Request" means a notice sent
by the Trustee to the Escrow Agent notifying the Escrow Agent of an upcoming
Interest Payment Date or other payment date in respect of the Notes and
requesting a disbursement, in substantially the form of Exhibit A hereto. Each
Payment Notice and Disbursement Request shall be signed by an officer of the
Trustee designated in a certificate of the Trustee setting forth specimen
signatures of authorized officers delivered to the Escrow Agent.
"Retired Notes" means Notes that have been permanently retired
by the Company and with respect to which no funds have been distributed (other
than to the Company) from the Escrow Account in respect of future interest
payments.
2. Escrow Account; Escrow Agent.
(a) Appointment of Escrow Agent; Establishment of Escrow
Account. The Company and the Trustee hereby appoint the Es-
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crow Agent, and the Escrow Agent hereby accepts appointment, as escrow agent,
under the terms and conditions of this Agreement.
Concurrently with the execution and delivery hereof, the
Escrow Agent shall establish the Escrow Account at its office located at 000
Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000. Subject to Section 3, Section 5 and the
other terms and conditions of this Agreement, all funds accepted by the Escrow
Agent pursuant to this Agreement shall be held in the Escrow Account for the
ratable benefit of the holders of the Notes. All such funds shall be held in the
Escrow Account until disbursed in accordance with the terms hereof. The Escrow
Account shall be under the sole dominion and control of the Escrow Agent for the
ratable benefit of the holders of the Notes. Concurrently with the execution and
delivery hereof, the Company shall deliver the Initial Escrow Amount to the
Escrow Agent for deposit into the Escrow Account against the Escrow Agent's
written acknowledgment and receipt of the Initial Escrow Amount.
(b) Escrow Agent Compensation. The Company shall pay to the
Escrow Agent such compensation for services to be performed by it under this
Agreement as the Company and the Escrow Agent may agree in writing from time to
time. The Escrow Agent shall be entitled to disburse from the Escrow Account all
such amounts due to the Escrow Agent as agreed upon by the Company and the
Escrow Agent (including the reasonable expenses described in the next succeeding
paragraph).
The Company shall reimburse the Escrow Agent upon request for
all reasonable expenses, disbursements, and advances incurred or made by the
Escrow Agent in implementing any of the provisions of this Agreement, including
reasonable compensation, expenses and disbursements of its counsel (such
compensation, expenses and disbursements of counsel not to exceed $5,000 in the
aggregate), except any such expense, disbursement, or advance as may arise from
its gross negligence or willful misconduct.
(c) Investment of Funds in Escrow Account. Funds deposited in
the Escrow Account shall be invested and reinvested upon the following terms and
conditions:
(i) Acceptable Investments. All funds deposited in the
Escrow Account shall be initially invested by the Escrow Agent in
cash items (including, without limitation, interest bearing
deposit accounts) and Marketable Securities in accordance with
the Company's written instructions to the Escrow Agent.
Thereafter, the Escrow Agent shall invest all funds (including
proceeds of any such in-
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vestments at maturity and interest earned and dividends paid on
any such investments) in the Escrow Account in cash items or
Marketable Securities designated by the Company in writing from
time to time. All Marketable Securities shall be assigned to and
held in the possession of, or, in the case of Marketable
Securities maintained in book entry form with the Federal Reserve
Bank, transferred to a book entry account in the name of, the
Escrow Agent, for the ratable benefit of the holders of the Notes
(subject to Section 3 and Section 5), with such guarantees as are
customary, except that Marketable Securities maintained in book
entry form with the Federal Reserve Bank shall be transferred to
a book entry account in the name of the Escrow Agent at the
Federal Reserve Bank that includes only Marketable Securities
held by the Escrow Agent for its customers and segregated by
separate recordation in the books and records of the Escrow
Agent, subject to the provisions of Section 5 hereof.
(ii) Security Interest in Investments. No investment of
funds in the Escrow Account shall be made unless the Company has
certified to the Escrow Agent and the Trustee that, upon such
investment, the Trustee, for the ratable benefit of the holders
of the Notes, will have a first priority perfected security
interest in the applicable investment. A certificate as to a
class of investments need not be issued with respect to
individual investments in securities in that class if the
certificate applicable to the class remains accurate with respect
to such individual investments. On the date hereof, and on each
anniversary of the Issue Date thereafter until the date upon
which the balance of the Available Funds shall have been reduced
to zero, each of the Trustee and the Escrow Agent shall receive
an Opinion of Counsel (as such term is defined in the Indenture)
to the Company, dated the date hereof or thereof, as the case may
be, to the effect that the Escrow Agreement creates a valid,
perfected first priority security interest in favor of the
Trustee, for the ratable benefit of the holders of the Notes, in
the Escrow Account and the Collateral (as defined below).
(iii) Interest and Dividends. All interest earned and
dividends paid on funds invested in Marketable Securities shall
be deposited in the Escrow Account as additional Collateral for
the benefit of the holders of the Notes (subject to Section 3 and
Section 5) and shall be reinvested in accordance with the terms
hereof at the Company's written instruction.
(iv) Limitation on Escrow Agent's Responsibilities. The
Escrow Agent's sole responsibilities under this Xxxxxxx
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0 xxxxx xx (A) to retain possession of certificated Marketable
Securities (except, however, that the Escrow Agent may surrender
possession to the issuer of any such Marketable Security for the
purposes of effecting assignment, crediting interest, or
reinvesting such security or reducing such security to cash) and
to be the registered or designated owner of Marketable Securities
which are not certificated, (B) to follow the Company's written
instructions given in accordance with Section 2(d)(i) hereof, (C)
to invest and reinvest funds pursuant to this Section 2(d) and
(D) to use its best efforts to reduce to cash such Marketable
Securities as may be required to fund any disbursement in
accordance with Section 3 hereof. In connection with clause (A)
above, the Escrow Agent will maintain continuous possession in
the State of New York of certificated Marketable Securities and
cash included in the Collateral and will cause uncertificated
Marketable Securities to be registered in the book-entry system
of, and transferred to an account of the Escrow Agent at, the
Federal Reserve Bank of New York.
(d) Substitution of Escrow Agent. The Escrow Agent may resign
by giving no less than 30 days' prior written notice to the Company and the
Trustee. Such resignation shall take effect upon the later to occur of (i)
delivery of all funds and Marketable Securities maintained by the Escrow Agent
hereunder and copies of all books, records, plans and other documents in the
Escrow Agent's possession relating to such funds or Marketable Securities or
this Agreement to a successor escrow agent appointed by the Company and (ii) the
Company, the Trustee and such successor escrow agent entering into this
Agreement or any written successor agreement no less favorable to the interests
of the holders of the Notes and the Trustee than this Agreement; and the Escrow
Agent shall thereupon be discharged of all obligations under this Agreement and
shall have no further duties, obligations or responsibilities in connection
herewith. If a successor escrow agent has not been appointed or has not accepted
such appointment within 30 days after notice of resignation is given to the
Company, the Escrow Agent may apply to a court of competent jurisdiction for the
appointment of a successor escrow agent and no such resignation shall take
effect until such appointment of a successor escrow agent is made and the terms
of the second sentence of this Section 2(d) have been complied with.
(e) Escrow Account Statement. Each month, the Escrow Agent
shall deliver to the Company and the Trustee a statement of the Escrow Agent in
a form satisfactory to the Company and the Trustee setting forth with reasonable
particularity the balance of funds then in the Escrow Account and the manner in
which such funds have been and are invested (the "Escrow Account State-
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ment"). The parties hereto irrevocably instruct the Escrow Agent that on the
first date upon which the balance in the Escrow Account (including the holdings
of all Marketable Securities) is reduced to zero, the Escrow Agent shall deliver
to the Company and to the Trustee a written notice that the balance in the
Escrow Account has been reduced to zero.
3. Disbursements.
(a) Payment Notice and Disbursement Request; Disbursements.
The Trustee shall, five Business Days prior to an Interest Payment Date with
respect to the five regularly scheduled interest payments due on the Notes from
January 15, 1998 through January 15, 2000 or to a date of redemption or
repurchase (if prior to the payment of the fifth interest payment on the Notes)
pursuant to Section 4.07 of the Indenture in respect of the Notes, submit to the
Escrow Agent a completed Payment Notice and Disbursement Request substantially
in the form of Exhibit A hereto.
The Escrow Agent's disbursement pursuant to any Payment Notice
and Disbursement Request shall be subject to the satisfaction of the applicable
conditions set forth in Section 3(b) hereof. Provided such Payment Notice and
Disbursement Request is not rejected by it for failure to comply with Section
3(b), the Escrow Agent, within two (2) Business Days following receipt of such
Payment Notice and Disbursement Request, shall disburse the funds requested in
such Payment Notice and Disbursement Request by wire or book-entry transfer of
immediately available funds to the account of the Trustee for the benefit of the
holders of the Notes. The Escrow Agent shall notify the Trustee as soon as
reasonably possible (but not later than two (2) Business Days from the date of
receipt of the Payment Notice and Disbursement Request) if any Payment Notice
and Disbursement Request is rejected for failure to comply with Section 3(b) and
the reasons therefor. In the event such rejection is based upon nonsatisfaction
of the condition in Section 3(b)(A) below, the Trustee shall thereupon resubmit
the Payment Notice and Disbursement Request with appropriate changes.
(b) Conditions Precedent to Disbursement. The Escrow Agent's
payment of any disbursement shall be made only if: (A) the Trustee shall have
submitted, in accordance with the provisions of Section 3(a) herein, a completed
Payment Notice and Disbursement Request to the Escrow Agent substantially in the
form of Exhibit A hereto with blanks appropriately filled in and (B) the Escrow
Agent shall not have received any notice from the Trustee that as a result of an
Event of Default (as defined in the Indenture) the indebtedness represented by
the Notes has been
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accelerated and has become due and payable (in which event the Escrow Agent
shall apply all Available Funds as required by Section 6(b)(iii) hereof).
(c) Retired Notes. In the event a portion of the Notes has
been retired by the Company (and with respect to which no funds previously have
been disbursed from the Escrow Account in respect of future interest payments),
funds representing the interest payments on the retired Notes shall, upon the
submission to the Escrow Agent of a completed Payment Notice and Disbursement
Request substantially in the form of Exhibit A hereto, be paid to the Company.
(d) Final Interest Payment. In the event there are any
Available Funds following the disbursement to be made in connection with the
interest payment on the Notes due January 15, 2000, such Available Funds
(including Marketable Securities) shall be paid to the Company immediately upon
the submission to the Escrow Agent of a completed Payment Notice and
Disbursement Request substantially in the form of Exhibit A hereto. Furthermore,
upon payment in full of the five regularly scheduled interest payments due on
the Notes from January 15, 1998 through January 15, 2000, the security interest
in the Collateral evidenced by this Escrow Agreement shall terminate and be of
no further force and effect. In addition, upon release of any Collateral from
the Escrow Account in accordance with the terms of this Escrow Agreement, the
security interest evidenced by this Escrow Agreement in the Collateral so
released shall terminate and be of no further force and effect.
4. Escrow Agent.
Limitation of the Escrow Agent's Liability; Responsibilities
of the Escrow Agent. The Escrow Agent's responsibility and liability under this
Agreement shall be limited as follows: (i) the Escrow Agent does not represent,
warrant or guaranty to the holders of the Notes from time to time the
performance of the Company; (ii) the Escrow Agent shall have no responsibility
to the Company or the holders of the Notes or the Trustee from time to time as a
consequence of the performance by the Escrow Agent hereunder, except for any
gross negligence or willful misconduct of the Escrow Agent and except with
respect to claims based upon such gross negligence or wilfull misconduct that
are successfully asserted against the Escrow Agent; (iii) the Company shall
remain solely responsible for all aspects of the Company's business and conduct;
and (iv) the Escrow Agent is not obligated to supervise, inspect, or inform the
Company or any third party of any matter referred to above.
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No implied covenants or obligations shall be inferred from
this Agreement against the Escrow Agent, nor shall the Escrow Agent be bound by
the provisions of any agreement beyond the specific term hereof. Specifically
and without limiting the foregoing, the Escrow Agent shall in no event have any
liability in connection with its investment, reinvestment or liquidation, in
good faith and in accordance with the terms hereof, of any funds or Marketable
Securities held by it hereunder, including without limitation any liability for
any delay not resulting from gross negligence or willful misconduct in such
investment, reinvestment or liquidation, or for any loss of principal or income
incident to any such delay.
The Escrow Agent shall be entitled to rely upon any judicial
order or judgment, upon any written opinion of counsel or upon any
certification, instruction, notice, or other writing delivered to it by the
Company or the Trustee in compliance with the provisions of this Agreement
without being required to determine the authenticity or the correctness of any
fact stated therein or the propriety or validity of service thereof. The Escrow
Agent may act in reliance upon any instrument comportinq with the provisions of
this Agreement or signature believed by it to be genuine and may assume that any
person purporting to give notice or receipt or advice or make any statement or
execute any document in connection with the provisions hereof has been duly
authorized to do so.
At any time, the Escrow Agent may request in writing an
instruction in writing from the Company, and may at its own option include in
such request the course of action it proposes to take and the date on which it
proposes to act, regarding any matter arising in connection with its duties and
obligations hereunder; provided, however, that the Escrow Agent shall state in
such request that it believes in good faith that such proposed course of action
is consistent with another identified provision of this Agreement. The Escrow
Agent shall not be liable to the Company for acting without the Company's
consent in accordance with such a proposal on or after the date specified
therein if (i) the specified date is at least two Business Days after the
Company receives the Escrow Agent's request for instructions and its proposed
course of action, which instructions shall have been delivered to the Company at
least two Business Days prior to such action and (ii) prior to so acting, the
Escrow Agent has not received the written instructions requested from the
Company, which instructions shall have been delivered to the Company at least
two Business Days prior to such action.
The Escrow Agent may act pursuant to the written advice of
counsel chosen by it with respect to any matter relating to
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this Agreement and (subject to this Section 4) shall not be liable for any
action taken or omitted in accordance with such advice.
The Escrow Agent shall not be called upon to advise any party
as to selling or retaining, or taking or refraining from taking any action with
respect to, any securities or other property deposited hereunder.
In the event of any ambiguity in the provisions of this
Agreement with respect to any funds or property deposited hereunder, the Escrow
Agent shall be entitled to refuse to comply with any and all claims, demands or
instructions with respect to such property or funds, and the Escrow Agent shall
not be or become liable for its failure or refusal to comply with conflicting
claims, demands or instructions. The Escrow Agent shall be entitled to refuse to
act until either any conflicting or adverse claims or demands shall have been
finally determined by a court of competent jurisdiction or settled by agreement
between the conflicting claimants as evidenced in a writing, satisfactory to the
Escrow Agent, in which event the Escrow Agent shall act in accordance with such
determination or agreement.
No provision of this Agreement shall require the Escrow Agent
to expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder.
The Escrow Agent shall not be required to institute legal
proceedings of any kind and shall not be required to initiate or defend any
legal proceedings which may be instituted against it in respect of the subject
matter of this Agreement. If the Escrow Agent does elect to act it will do so
only to the extent that it is indemnified to its satisfaction against the cost
and expense of such defense or initiation.
5. Indemnity. The Company shall indemnify, hold harmless and defend the
Escrow Agent and its directors, officers, agents, employees and controlling
persons, from and against any and all claims, actions, obligations, liabilities
and expenses, including defense costs, investigative fees and costs, reasonable
legal fees, and claims for damages, arising from the Escrow Agent's performance
under this Agreement, except to the extent that such liability, cost, legal fee,
obligation, action, expense or claim is directly attributable to the gross
negligence or willful misconduct of any of the foregoing persons. In connection
with any claim, action, obligation, liability or expense for which
indemnification is sought by the Escrow Agent hereunder, the Escrow Agent shall
be entitled to recover its costs from funds available
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in the Escrow Account as provided in Section 2(c), provided, however, that the
Company agrees to pay such costs if and to the extent funds in the Escrow
Account are insufficient. The provisions of this Section shall survive any
termination, satisfaction or discharge of this Agreement as well as the
resignation or removal of the Escrow Agent.
6. Grant of Security Interest; Instructions to Escrow Agent.
(a) The Company hereby irrevocably grants, for the term of
this Agreement, a first priority security interest in, pledges, assigns and sets
over to the Trustee all of the Company's right, title and interest in the Escrow
Account, all funds held therein and all Marketable Securities held by (or
otherwise maintained in the name of) the Escrow Agent pursuant to Section 2
hereof, as well as all rights of the Company under this Agreement (collectively,
the "Collateral"), in order to secure certain obligations and indebtedness of
the Company under the Notes owed by the Company under the Indenture for the
ratable benefit of the holders of the Notes or to the Trustee. The Company shall
take all actions necessary on its part to insure the continuance of a first
priority security interest, for the term of this Agreement, in the Collateral in
favor of the Trustee for the ratable benefit of the holders of the Notes in
order to secure such obligations and indebtedness. Each of the Trustee and the
Escrow Agent shall have received an Opinion from Counsel to the Company, on the
date hereof, and annually, for the term of this Agreement, on the anniversary of
the Issue Date to the effect that the Escrow Agreement creates a valid,
perfected first priority security interest in favor of the Trustee for the
ratable benefit of the holders of the Notes in the Escrow Account and the
Collateral.
(b) The Company and the Trustee hereby irrevocably instruct
the Escrow Agent to, and the Escrow Agent will, (i) (A) maintain sole dominion
and control over funds in the Escrow Account for the benefit of the Trustee to
the extent specifically required herein, (B) maintain, or cause its agent within
the State of New York to maintain, possession of all certified Marketable
Securities purchased hereunder that are physically possessed by the Escrow Agent
in order for the Trustee for the ratable benefit of the holders of the Notes to
enjoy a continuous perfected first priority security interest therein under the
laws of the State of New York (the Company hereby agreeing that in the event any
certificated Marketable Securities are in the possession of the Company or a
third party, the Company shall use its commercially reasonable efforts to
deliver all such certificates to the Escrow Agent for the benefit of the
Trustee), (C) take all commercially reasonable steps to cause the Trustee to
enjoy a
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continuous perfected first priority security interest under the New York Uniform
Commercial Code and any applicable law of the State of New York in all
Marketable Securities purchased hereunder that are not certificated and (D)
maintain the Collateral free and clear of all liens, security interests,
safekeeping or other charges, demands and claims against the Escrow Agent of any
nature now or hereafter existing in favor of anyone other than the Trustee; (ii)
promptly notify the Trustee if the Escrow Agent receives written notice that any
person other than the Trustee has a lien or security interest upon any portion
of the Collateral (other than any claim which Escrow Agent may have against the
Escrow Account for unpaid fees and expenses) and (iii) in addition to disbursing
amounts held in escrow pursuant to any Payment Notice and Disbursement Requests
given to it by the Trustee pursuant to Section 3, upon receipt of written notice
from the Trustee of the acceleration of the maturity of the Notes or the failure
by the Company to pay principal on the Notes upon such acceleration, and
direction from the Trustee to disburse all Available Funds to the Trustee, as
promptly as practicable, after following the procedures set forth in the fourth
paragraph of Section 4, disburse all funds held in the Escrow Account to the
Trustee and transfer title to all Marketable Securities held by the Escrow Agent
hereunder to the Trustee. The lien and security interest provided for by this
Section 6 shall automatically terminate and cease as to, and shall not extend or
apply to, and the Trustee shall have no security interest in, any funds
disbursed by the Escrow Agent to the Company pursuant to this Agreement. The
Escrow Agent shall act solely as the Trustee's agent in connection with the
duties under this Section 6, notwithstanding any other provision contained in
this Agreement, without any right to receive compensation from the Trustee and
without any authority to obligate the Trustee or to compromise or pledge its
security interest hereunder.
(c) Any money and Marketable Securities collected by the
Trustee pursuant to Section 6(b)(iii) shall be applied as provided in the
Indenture.
(d) The Company will execute and deliver to the Trustee such
instruments and documents as may be required or as the Trustee may reasonably
deem necessary or advisable to confirm or perfect the rights of the Trustee
under this Agreement and the Trustee's interest in the Collateral. The Company
will take all necessary action to preserve and protect the security interest
created hereby as a lien and encumbrance upon the Collateral.
(e) The Company hereby appoints the Trustee as its
attorney-in-fact effective upon and during the continuance of an Event of
Default under the Indenture with full power of substitu-
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tion to do any act which the Company is obligated hereto to do, and the Trustee
may exercise such rights as the Company might exercise with respect to the
Collateral and to take any action in the Company's name to protect the Trustee's
security interest hereunder. Prior to the occurrence of an Event of Default
known to the Trustee, the Trustee shall have no duty or obligation to verify or
maintain the perfection of any security interest created hereby.
7. Termination. This Agreement shall terminate automatically following
disbursement of all funds remaining in the Escrow Account (including Marketable
Securities), unless sooner terminated by agreement of the parties hereto (in
accordance with the terms hereof and not in violation of the Indenture);
provided, however, that the obligations of the Company under Section 5 (and any
existing claims thereunder) shall survive termination of this Agreement or the
resignation of the Escrow Agent.
8. Miscellaneous.
(a) Waiver. Any party hereto may specifically waive any breach of
this Agreement by any other party, but no such waiver shall be deemed to have
been given unless such waiver is in writing, signed by the waiving party and
specifically designating the breach waived, nor shall any such waiver constitute
a continuing waiver of similar or other breaches.
(b) Invalidity. If for any reason whatsoever any one or more of the
provisions of this Agreement shall be held or deemed to be inoperative,
unenforceable or invalid in a particular case or in all cases, such
circumstances shall not have the effect of rendering any of the other provisions
of this Agreement inoperative, unenforceable or invalid, and the inoperative,
unenforceable or invalid provision shall be construed as if it were written so
as to effectuate, to the maximum extent possible, the parties' intent.
(c) Assignment. This Agreement is personal to the parties hereto,
and the rights and duties of any party hereunder shall not be assignable except
with the prior written consent of the other parties. Notwithstanding the
foregoing, this Agreement shall inure to and be binding upon the parties and
their successors and permitted assigns.
(d) Benefit. The parties hereto and their successors and permitted
assigns, but no others, shall be bound hereby and entitled to the benefits
hereof; provided, however, that the holders of the Notes and their permitted
assigns shall be entitled to the benefits hereof and to enforce this Agreement.
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(e) Time. Time is of the essence of each provision of this
Agreement.
(f) Entire Agreement; Amendments. This Agreement, the Indenture and
the terms of the Notes thereunder contain the entire agreement among the parties
with respect to the subject matter hereof and supersede any and all prior
agreements, understandings and commitments, whether oral or written. This
Agreement may be amended only by a writing signed by a duly authorized
representative of each party hereto.
(g) Notices. All notices and other communications required or
permitted to be given or made under this Agreement sha1l be in writing and shall
be deemed to have been duly given and received, regardless of when and whether
received, either: (a) on the day of hand delivery; (b) three Business Days
following the day sent, when sent by United States certified mail, postage and
certification fee prepaid, return receipt requested, addressed as follows; (c)
when transmitted by telecopy with verbal confirmation of receipt by the telecopy
operator; or (d) one Business Day following the day timely delivered to a
next-day air courier:
To Escrow Agent:
The Bank of New York
000 Xxxxxxx Xx.
00 Xxxx
Xxx Xxxx, XX 00000
Attn: Xxxx Xxxxx
Insurance Trust and Escrow Unit
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
To Trustee:
The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Attn: Corporate Trust Administration Department
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
To the Company:
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American Communications Services, Inc.
000 Xxxxxxxx Xxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxx Xxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxx
Telecopy: (000)000-0000
Telephone: (000)000-0000
or at such other address as the specified entity most recently may have
designated in writing in accordance with this Section.
(h) Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
(i) Captions. Captions in this Agreement are for convenience
only and shall not be considered or referred to in resolving questions of
interpretation of this Agreement.
(j) Choice of Law. The existence, validity, construction,
operation and effect of any and all terms and provisions of this Agreement shall
be determined in accordance with and governed by the laws of the State of New
York. The parties to this Agreement hereby agree that jurisdiction over such
parties and over the subject matter of any action or proceeding arising under
this Agreement may be exercised by a competent Court of the State of New York,
or by a United States Court sitting in New York City. The Company hereby submits
to the personal jurisdiction of such courts, hereby waives personal service of
process upon it and consents that any such service of process may be made by
certified or registered mail, return-receipt requested, directed to the Company
at its address last specified for notices hereunder, and service so made shall
be deemed completed five (5) days after the same shall have been so mailed. All
actions and proceedings brought by the Company, or the Trustee against the
Escrow Agent relating to or arising from, directly or indirectly, this Agreement
shall be litigated only in Federal or New York State courts within the State of
New York.
(k) The Company hereby represents and warrants that this
Agreement has been duly authorized, executed and delivered on its behalf and
constitutes the legal, valid and binding obligation of the Company. The
execution, delivery and performance of this Agreement by the Company does not
violate any applicable law or regulation to which the Company is subject and
does not require the consent of any governmental or other regulatory body to
which the Company is subject, except for such consents and approvals as have
been obtained and are in full force and effect.
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(l) Each of the Escrow Agent and the Trustee hereby represents
and warrants that this Agreement has been duly authorized, executed and
delivered on its behalf and constitutes its legal, valid and binding obligation.
17
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IN WITNESS WHEREOF, the parties have executed and delivered
this Escrow and Disbursement Agreement as of the day first above written.
ESCROW AGENT: THE BANK OF NEW YORK
By: ______________________________
Name:
Title:
TRUSTEE: THE CHASE MANHATTAN BANK, as Trustee
By: ______________________________
Name:
Title:
COMPANY: AMERICAN COMMUNICATIONS SERVICES, INC.
By: ______________________________
Name:
Title:
18
EXHIBIT A TO ESCROW AND DISBURSEMENT AGREEMENT
Form of Payment Notice and Disbursement Request
(Letterhead of the Trustee)
[Date]
Attn: The Bank of New York
000 Xxxxxxx Xx.
00 Xxxx
Xxx Xxxx, XX 00000
Xxxx Xxxxx
Insurance Trust and Escrow Unit
Re: Disbursement Request No. ________________________
(indicate whether revised)
Ladies and Gentlemen:
We refer to the Escrow and Disbursement Agreement, dated as of
July 23, 1997 (the "Escrow Agreement") among you (the "Escrow Agent"), the
undersigned as Trustee, and American Communications Services, Inc., a Delaware
corporation (the "Company"). Capitalized terms used herein shall have the
meaning given in the Escrow Agreement.
This letter constitutes a Payment Notice and Disbursement
Request under the Escrow Agreement.
[choose one of the following, as applicable]
[The undersigned hereby notifies you that a scheduled interest
payment in the amount of $____________ is due and payable on ___________ , ____
and requests a disbursement of funds contained in the Escrow Account in such
amount.]
[The undersigned hereby notifies you that a payment of
$_______ will be due and payable on ___________ __, ____ (not more than 5
Business Days from the date of this request) in connection with a repurchase or
redemption of Notes, plus accrued and unpaid interest, if any, pursuant to the
provisions of Section 4.07 of the Indenture and in connection therewith requests
a disbursement of funds contained in the Escrow Account in the amount of
$_____________ .]
[The undersigned hereby notifies you that Notes equaling
$____________ in aggregate principal amount have been retired and authorizes you
to release $_____________ of funds in the Escrow Account to the Company (to an
account designated by the Com-
19
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pany in writing), which amount represents the interest payments on such Retired
Notes and is not duplicative of any amounts previously disbursed.]
[The undersigned hereby authorizes you, pursuant to Section
3(d) of the Escrow Agreement, to release $_____________of funds (representing
all Available Funds) in the Escrow Account to the Company (to an account
designated by the Company in writing) and to release all Marketable Securities
in the Escrow Account to the Company (to an account designated by the Company in
writing).]
In connection with the requested disbursement, the undersigned
hereby notifies you that:
1. The Notes have not, as a result of an Event of Default (as
defined in the Indenture), been accelerated and become due and payable.
2. All prior disbursements from the Escrow Account have been
Applied.
3. [add wire instructions]
The Escrow Agent is entitled to rely on the foregoing in
disbursing funds relating to this Payment Notice and Disbursement Request.
THE CHASE MANHATTAN BANK, as
Trustee
By:____________________________________
Name:
Title:
