Exhibit 99.20
PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT (the "Pledge Agreement"), dated as of July 21,
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1995 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 Credit Agreement (as
defined below).
STATEMENT OF PURPOSE
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Pursuant to a Credit Agreement, dated as of even date herewith
(together with all amendments and other modifications, if any, from time to time
hereafter made thereto, the "Credit Agreement"), between the Pledgor and certain
Affiliates of the Pledgor as Borrowers thereunder (collectively, the
"Borrowers"), the Lenders and the Administrative Agent, the Lenders will extend
Loans to the Borrowers as more specifically described in the Credit Agreement.
The Pledgor is the legal and beneficial owner of the shares of Pledged
Stock (as hereinafter defined) issued by the United States Subsidiaries and the
Foreign Subsidiaries as specified on Schedule 1 attached hereto and incorporated
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herein by reference (collectively, the "Issuers").
In connection with the transactions contemplated by the Credit
Agreement and as a condition precedent thereto, the Lenders have requested, and
the Pledgor has agreed to execute and deliver, this Pledge Agreement with the
Pledged Stock to the Administrative Agent for the ratable benefit of itself and
Lenders.
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 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
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defined in the 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
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effect in the State of North Carolina.
"Collateral" means the Pledged Stock and all Proceeds.
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"Pledge Agreement" means this Pledge Agreement, as amended or
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modified.
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"Pledged Stock" means the shares of capital stock of each Issuer
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listed on Schedule I hereto, together with all stock certificates,
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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
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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.
2. Pledge and Grant of Security Interest. The Pledgor hereby
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delivers to the Administrative Agent, for the ratable benefit of itself and the
Lenders all 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 the 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 obligations.
3. Stock Powers. Concurrently with the delivery to the
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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
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Agent and the Lenders to execute the Credit Agreement and make any Loans and to
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;
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(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 I constitute
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all the issued and outstanding shares of all classes of the capital
stock of each of the United States Subsidiaries and constitute 66.66%
of all the issued and outstanding shares of all classes of capital
stock of each of the Foreign 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 I,
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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
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Administrative Agent for the ratable benefit of itself and the Lenders that,
from and after the date of this Pledge Agreement until the 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
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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 Obligations; provided that in no event shall more than 66.66%
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of all the issued and outstanding shares of all classes of capital
stock of each of the Foreign 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 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.
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(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 Foreign Subsidiaries owned by the Pledgor but not pledged
hereunder, or any interest therein, except as otherwise permitted
pursuant to Section 9.3 or Section 9.4 of the Credit Agreement.
6. Cash Dividends, Voting Rights. Unless an Event of Default shall
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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 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
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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 Credit Agreement, the Notes, any other Loan Documents or this
Pledge Agreement.
7. Rights of the Administrative Agent.
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(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 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
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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
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,
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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 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 ▇▇▇▇▇▇▇, 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
obligations, in the order set forth in Section 10 of the Security Agreement, and
only after such application and after
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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.
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(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
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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 Credit
Agreement.
10. Amendments. etc. With Respect to the Obligations. The Pledgor
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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 Obligations made by the Administrative Agent or
any Lender may be rescinded by the Administrative Agent or such Lender, and any
of the Obligations continued, and the 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 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
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 Obligations or any property subject thereto. The Pledgor waives any and all
notice of the creation, renewal, extension or accrual of any of the Obligations
and notice of or proof of reliance by the Administrative Agent or any Lender
upon this Pledge Agreement; the 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 the Obligations.
11. Regulatory Approval. The Pledgor will, at its expense, promptly
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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
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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, 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 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 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 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 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
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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
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herein contained with respect to the Collateral constitute irrevocable powers
coupled with an interest.
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14. Severability. Any provision of this Pledge Agreement which is
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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
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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
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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.
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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
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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 13.11 of the 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
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to the addresses and otherwise in accordance with Section 13.1 of the Credit
Agreement.
19. Irrevocable Authorization and Instruction to Issuers. The
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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.
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20. Authority of Administrative Agent. The Pledgor acknowledges that
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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 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
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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 13.1 of the 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. Waiver of Jury Trial. NOTWITHSTANDING ANY OTHER PROVISION
---------------------
CONTAINED HEREIN, IN THE EVENT ANY JUDICIAL PROCEEDING IS INSTITUTED IN
CONNECTION WITH THIS PLEDGE AGREEMENT, TO THE EXTENT PERMITTED BY LAW, THE
ADMINISTRATIVE AGENT AND EACH LENDER BY THEIR ACCEPTANCE OF THIS PLEDGE
AGREEMENT OR THE BENEFITS HEREOF AND THE PLEDGOR EACH HEREBY IRREVOCABLY WAIVES
ITS RESPECTIVE RIGHTS TO A JURY TRIAL WITH RESPECT TO 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.
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/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------
Title: Controller
------------------------
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/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
Title: Controller
-------------------------
SCHEDULE 1
To Pledge
Agreement
---------
DESCRIPTION OF PLEDGED STOCK
United States Subsidiaries
--------------------------
Issuer Class of Stock Certificate No. No. of Shares
------ -------------- --------------- -------------
ACC Long
Distance
of
Massachusetts
Corp. Common 2 1
PLEDGE AGREEMENT SUPPLEMENT
---------------------------
PLEDGE AGREEMENT SUPPLEMENT, dated as of _____________, 199_ (the
"Supplement"), 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 corporation, as Administrative Agent (in such capacity, the
"Administrative Agent"), under the 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 Pledge Agreement, dated as of
___________, 1995, made by the Pledgor in favor of the Administrative Agent (as
amended, supplemented or otherwise modified as of the date hereof, 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 Obligations and in order to
induce the Lenders to make their Loans under the 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 UNITED STATES SUBSIDIARY]] or (66.66% of the issued and outstanding shares
of capital stock of (INSERT NAME OF NEW FOREIGN 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:
----------
- 2 -
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 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 U.S. SUBSIDIARIES]
[NAME OF NEW ISSUER]
By:
Name:
Title: