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SECOND AMENDED AND RESTATED CREDIT AGREEMENT
dated as of December 19, 1997
by and among
ACC CORP.,
and certain Subsidiaries thereof designated herein,
as Borrowers,
ACC CORP.,
as Guarantor,
the Lenders referred to herein,
FIRST UNION NATIONAL BANK,
as Managing Agent and Administrative Agent,
and
FLEET NATIONAL BANK,
as Managing Agent and Documentation Agent
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TABLE OF CONTENTS
ARTICLE I DEFINITIONS ........................................................1
SECTION 1.1. Definitions ................................1
SECTION 1.2. General ...................................20
SECTION 1.3. Other Definitions and Provisions ..........20
ARTICLE II CREDIT FACILITY...................................................21
SECTION 2.1. Revolving Credit Loans.....................21
SECTION 2.2. Swingline Loans............................21
SECTION 2.3. Procedure for Advances of Revolving
Credit and Swingline Loans.................23
. 35
SECTION 2.4. Repayment of Extensions of Credit.........24
SECTION 2.5. Notes.....................................26
SECTION 2.6. Permanent Reductions of the Aggregate
Commitment.................................26
SECTION 2.7. Termination of Credit Facility.............28
SECTION 2.8. Use of Proceeds............................28
SECTION 2.9. Nature of Obligations; Security............28
ARTICLE III LETTER OF CREDIT FACILITY........................................29
SECTION 3.1. L/C Commitment.............................29
SECTION 3.2. Procedure for Issuance of
Letters of Credit.........................29
SECTION 3.3. Fees and Other Charges.....................30
SECTION 3.4. L/C Participations.........................30
SECTION 3.5. Reimbursement Obligation of
the Borrower..............................31
SECTION 3.6. Obligations Absolute.......................32
SECTION 3.7. Effect of Application......................32
ARTICLE IV GENERAL LOAN PROVISIONS...........................................33
SECTION 4.1. Interest...................................35
SECTION 4.2. Notice and Manner of Conversion or
Continuation of Revolving Credit Loans.....36
SECTION 4.3. Fees.......................................36
SECTION 4.4. Manner of Payment..........................37
SECTION 4.5. Crediting of Payments and Proceeds........38
SECTION 4.6. Nature of Obligations of Lenders
Regarding Extensions of Credit;
Assumption by
Administrative Agent......................38
SECTION 4.7. Mandatory Redenomination of
Alternative Currency Loans ................39
SECTION 4.8. Regulatory Limitation..................... 39
SECTION 4.9. Changed Circumstances..................... 39
SECTION 4.10. Indemnity................................. 42
SECTION 4.11. Capital Requirements.......................42
SECTION 4.12. Taxes......................................42
ARTICLE V CLOSING; CONDITIONS OF CLOSING AND BORROWING.......................44
SECTION 5.1. Closing....................................44
SECTION 5.2. Conditions to Closing and
Initial Extensions of Credit .............44
SECTION 5.3. Conditions to All Extensions of Credit ...49
ARTICLE VI REPRESENTATIONS AND WARRANTIES OF BORROWERS.......................50
SECTION 6.1. Representations and Warranties.............50
SECTION 6.2. Survival of Representations and
Warranties, Etc............................58
ARTICLE VII FINANCIAL INFORMATION AND NOTICES................................58
SECTION 7.1. Financial Statements and Projections.......58
SECTION 7.2. Officer's Compliance Certificate...........59
SECTION 7.3. Accountants' Certificate...................59
SECTION 7.4. Other Reports..............................59
SECTION 7.5. Notice of Litigation and Other Matters.....60
SECTION 7.6. Accuracy of Information................... 61
ARTICLE VIII AFFIRMATIVE COVENANTS.......................................... 62
SECTION 8.1. Preservation of Corporate Existence
and Related Matters...................... 62
SECTION 8.2. Maintenance of Property................... 62
SECTION 8.3. Insurance................................. 62
SECTION 8.4. Accounting Methods and Financial Records.. 62
SECTION 8.5. Payment and Performance of Obligations.... 62
SECTION 8.6. Compliance With Laws and Approvals........ 63
SECTION 8.7. Environmental Laws........................ 63
SECTION 8.8. Employee Benefit, Pension and
Retirement Laws.......................... 63
SECTION 8.9. Compliance With Agreements................ 64
SECTION 8.10. Conduct of Business....................... 64
SECTION 8.11. Visits and Inspections.................... 64
SECTION 8.12. Material Subsidiaries; Additional
Collateral............................... 65
SECTION 8.13. Hedging Agreement......................... 66
SECTION 8.14. Further Assurances........................ 65
SECTION 8.15. Post-Closing Matters...................... 65
ARTICLE IX FINANCIAL COVENANTS.............................................. 65
SECTION 9.1. Maximum Leverage Ratio.................... 66
SECTION 9.2. Minimum Pro Forma Debt Service
Coverage Ratio........................... 66
SECTION 9.3. Fixed Charge Coverage Ratio............... 66
SECTION 9.4. Capital Expenditures...................... 66
SECTION 9.5. Minimum Net Worth......................... 67
ARTICLE X NEGATIVE COVENANTS................................................ 67
SECTION 10.1. Limitations on Debt....................... 67
SECTION 10.2. Limitations on Contingent Obligations..... 67
SECTION 10.3. Limitations on Liens...................... 68
SECTION 10.4. Limitations on Loans, Advances,
Investments and Acquisitions............. 69
SECTION 10.5. Limitations on Mergers and Liquidation.... 71
SECTION 10.6. Limitations on Sale of Assets............. 71
SECTION 10.7. Limitations on Dividends and
Distributions............................ 71
SECTION 10.8. Limitations on Exchange and
Issuance of Capital Stock................ 72
SECTION 10.9. Transactions with Affiliates.............. 72
SECTION 10.10. Certain Accounting Changes................ 72
SECTION 10.11. Amendments; Payments and Prepayments
of Subordinated Debt..................... 72
SECTION 10.12. Restrictive Agreements.................... 72
SECTION 10.13. Hedging Agreements........................ 72
ARTICLE XI UNCONDITIONAL GUARANTY........................................... 73
SECTION 11.1. Guaranty of Obligations................... 73
SECTION 11.2. Nature of Guaranty........................ 73
SECTION 11.3. Demand by the Administrative Agent........ 74
SECTION 11.4. Waivers................................... 74
SECTION 11.5. Modification of Loan Documents etc........ 74
SECTION 11.6. Reinstatement............................. 75
SECTION 11.7. No Subrogation............................ 75
ARTICLE XII DEFAULT AND REMEDIES............................................ 76
SECTION 12.1. Events of Default......................... 76
SECTION 12.2. Remedies.................................. 78
SECTION 12.3. Rights and Remedies Cumulative;
Non-Waiver; etc........................... 79
SECTION 12.4. Consents.................................. 80
SECTION 12.5. Judgment Currency......................... 80
SECTION 12.6. Adjustments............................... 81
ARTICLE XIII THE AGENTS .....................................................81
SECTION 13.1. Appointment............................... 81
SECTION 13.2. Delegation of Duties...................... 81
SECTION 13.3. Exculpatory Provisions.................... 82
SECTION 13.4. Reliance by Agents........................ 82
SECTION 13.5. Notice of Default......................... 82
SECTION 13.6. Non-Reliance on Such Agents
and Other Lenders........................ 83
SECTION 13.7. Indemnification........................... 84
SECTION 13.8. Each of the Agents in Its
Individual Capacity...................... 84
SECTION 13.9. Resignation of Agents; Successor Agents... 84
SECTION 13.10 Documentation Agent....................... 85
ARTICLE XIV MISCELLANEOUS ...................................................85
SECTION 14.1. Notices................................... 85
SECTION 14.2. Expenses.................................. 86
SECTION 14.3. Set-off................................... 87
SECTION 14.4. Governing Law............................. 87
SECTION 14.5. Consent to Jurisdiction................... 87
SECTION 14.6. Binding Arbitration; Waiver of
Jury Trial............................... 87
SECTION 14.7. Reversal of Payments...................... 89
SECTION 14.8. Injunctive Relief......................... 89
SECTION 14.9. Accounting Matters........................ 89
SECTION 14.10. Successors and Assigns; Participations.... 89
SECTION 14.11. Amendments, Waivers and Consents;
Renewal.................................. 93
SECTION 14.12. Performance of Duties..................... 94
SECTION 14.13. Indemnification........................... 94
SECTION 14.14. All Powers Coupled with Interest.......... 94
SECTION 14.15. Survival of Indemnities................... 95
SECTION 14.16. Titles and Captions....................... 95
SECTION 14.17. Severability of Provisions................ 95
SECTION 14.18. Counterparts.............................. 95
SECTION 14.19. ACC as Agent for Other Borrowers.......... 95
SECTION 14.20. Term of Agreement......................... 96
SECTION 14.21. Inconsistencies with Other Documents;
Independent Effect of Covenants........... 96
EXHIBITS
Exhibit A-1 - Form of Domestic Revolving Credit Note
Exhibit A-2 - Form of U.K. Revolving Credit Note
Exhibit A-3 - Form of Canadian Revolving Credit Note
Exhibit A-4 - Form of German Revolving Credit Note
Exhibit A-5 - Form of Swingline Note
Exhibit B - Form of Notice of Borrowing
Exhibit C - Form of Notice of Prepayment
Exhibit D - Form of Notice of Conversion/Continuation
Exhibit E - Form of Officer's Certificate
Exhibit F - Form of Notice of Account Designation
Exhibit G - Form of Assignment and Acceptance
Exhibit H - Form of Pledge Agreement
Exhibit I - Form of Security Agreement
Exhibit J - Form of Modification to Leasehold Mortgage
Exhibit K - Form of Joinder Agreement
Exhibit L - Form of Intercompany Subordination Agreement
SCHEDULES
Schedule 1 - Lenders and Commitments
Schedule 1.2 - Sublimits
Schedule 1.3 - Canadian Security Documents
Schedule 1.4 - German Security Documents
Schedule 1.5 - U.K. Security Documents
Schedule 6.1(a) - Jurisdictions of Organization and Qualification
Schedule 6.1(b) - Subsidiaries and Capitalization
Schedule 6.1(d) - Governmental Approvals
Schedule 6.1(h) - ERISA Plans
Schedule 6.1(l) - Material Contracts
Schedule 6.1(m) - Labor and Collective Bargaining Agreements
Schedule 6.1(r) - Real Property
Schedule 6.1(t) - Debt and Contingent Obligations
Schedule 6.1(u) - Litigation
Schedule 6.1(v) - Communications Licenses and PUC Authorizations
Schedule 10.3 - Existing Liens
Schedule 10.4 Existing Loans, Advances and Investments
EXHIBIT-10.18
SECOND AMENDED AND RESTATED CREDIT AGREEMENT, dated as of the 19th day
of December, 1997, by and among ACC CORP., a corporation organized under the
laws of Delaware ("ACC"), and the Subsidiaries thereof designated as Borrowers
herein, as Borrowers, ACC, as Guarantor, the Lenders who are or may become a
party to this Agreement, FIRST UNION NATIONAL BANK (formerly known as First
Union National Bank of North Carolina), a national banking association, as
Managing Agent and Administrative Agent and FLEET NATIONAL BANK, a national
banking association, as Managing Agent and Documentation Agent.
STATEMENT OF PURPOSE
The Borrowers have requested and the Lenders have agreed to amend and
restate the First Amended and Restated Credit Agreement (as hereinafter defined)
pursuant to the terms hereof in order to extend certain credit facilities to the
Borrowers. ACC, as parent of the other Borrowers, will benefit directly and
indirectly from the extension of such credit facilities to such other Borrowers.
As a precondition to making any extensions of credit hereunder, the Lenders have
required ACC, and ACC has agreed, to execute this Agreement as Guarantor.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, such parties
hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions. The following terms when used in this
Agreement shall have the meanings assigned to them below:
"ACC" means ACC Corp., a corporation organized under the laws of
Delaware, and its successors.
"ACC Canada" means ACC TelEnterprises Ltd., a corporation organized
under the laws of Ontario, and its successors.
"ACC Germany" means ACC Telekommunikation GMBH, a corporation organized
under the laws of the Federal Republic of Germany, and its successors.
"ACC National" means ACC National Long Distance Corp., a corporation
organized under the laws of Delaware, and its successors.
"ACC National Pledge Agreement" means the Second Amended and Restated
Pledge Agreement of even date executed by ACC National in favor of the
Administrative Agent for the
benefit of itself and the Lenders substantially in the form of Exhibit H, as
amended, restated or otherwise modified.
"ACC Pledge Agreement" means the Second Amended and Restated Pledge
Agreement of even date executed by ACC in favor of the Administrative Agent for
the benefit of itself and the Lenders substantially in the form of Exhibit H, as
amended, restated or otherwise modified.
"ACC U.K." means ACC Long Distance U.K., Ltd., a corporation organized
under the laws of the United Kingdom, and its successors.
"Additional Borrower" means any Material Subsidiary which has become a
Borrower hereunder in accordance with Section 8.12.
"Administrative Agent" means First Union in its capacity as
administrative agent hereunder, and any successor thereto appointed pursuant to
Section 13.9.
"Administrative Agent's Correspondent" means First Union National Bank,
London Branch, or any other financial institution designated by the
Administrative Agent to act as its correspondent hereunder with respect to
distribution and payment of Extensions of Credit denominated in Alternative
Currencies.
"Administrative Agent's Office" means the office of the Administrative
Agent specified in or determined in accordance with the provisions of Section
14.1.
"Affiliate" means, with respect to any Person and its Subsidiaries, any
other Person (other than a Subsidiary thereof) which directly or indirectly
through one or more intermediaries, controls, or is controlled by, or is under
common control with, such first Person or any of its Subsidiaries. The term
"control" means (a) the power to vote ten percent (10%) or more of the
securities or other equity interests of a Person having ordinary voting power,
or (b) the possession, directly or indirectly, of any other power to direct or
cause the direction of the management and policies of a Person, whether through
ownership of voting securities, by contract or otherwise.
"Agents" means the collective reference to the Managing Agents,
Documentation Agent and Administrative Agent.
"Aggregate Commitment" means the aggregate amount of the Lenders'
Commitments hereunder, as such amount may be reduced or modified at any time or
from time to time pursuant to the terms hereof. On the Closing Date, the
Aggregate Commitment shall be One Hundred Fifty Million Dollars ($150,000,000).
"Agreement" means this Second Amended and Restated Credit Agreement, as
further amended, restated or otherwise modified from time to time.
"Alternative Currency" means Sterling, Canadian Dollars or
Deutschemarks, or any combination of such currencies, as the context requires.
"Alternative Currency Amount" means with respect to each Extension of
Credit made or continued (or to be made or continued) in an Alternative
Currency, the amount of such Alternative Currency which is equivalent to the
principal amount in Dollars of such Extension of Credit at the most favorable
spot exchange rate determined by the Administrative Agent to be available to its
London branch at approximately 11:00 a.m. (London time) two (2) Business Days
before such Extension of Credit is made, continued or issued (or to be made,
continued or issued). When used with respect to any other sum expressed in
Dollars, "Alternative Currency Amount" shall mean the amount of such Alternative
Currency which is equivalent to the amount so expressed in Dollars at the most
favorable spot exchange rate determined by the Administrative Agent to be
available to it at the relevant time.
"Applicable Law" means all applicable provisions of constitutions,
laws, statutes, treaties, rules, regulations and orders of all Governmental
Authorities and all orders and decrees of all courts and arbitrators.
"Applicable Margin" shall have the meaning assigned thereto in Section
4.1(c).
"Application" means an application, in the form specified by the
Issuing Lender from time to time, requesting the Issuing Lender to issue a
Letter of Credit.
"Assignment and Acceptance" shall have the meaning assigned thereto in
Section 14.10.
"Available Commitment" means, as to any Lender at any time, an amount
equal to the excess, if any, of (a) such Lender's Commitment minus (b) such
Lender's Extensions of Credit.
"Authorized Officer" means with respect to any Person, the chief
executive officer, chief financial officer, or vice president of finance of such
Person.
"Base Rate" means, at any time, the rate of interest per annum which is
the higher of (a) the Prime Rate or (b) the Federal Funds Rate as determined by
the Administrative Agent plus 1/2 of 1%; each change in the Base Rate shall take
effect simultaneously with the corresponding change or changes in the Prime Rate
or the Federal Funds Rate.
"Base Rate Loan" means any Loan denominated in Dollars bearing interest
at a rate determined with reference to the Base Rate as provided in Section
4.1(a) hereof.
"Borrowers" means the collective reference to the Domestic Borrowers,
Canadian Borrowers, U.K. Borrowers and German Borrowers party hereto on the
Closing Date and each Additional Borrower in its capacity as a Borrower
hereunder.
"Business Day" means (a) for all purposes other than as set forth in
clause (b) below, any day other than a Saturday, Sunday or legal holiday on
which banks in Charlotte, North Carolina are open for the conduct of their
domestic and international commercial banking business, and (b) with respect to
all notices and determinations in connection with, and payments of principal and
interest on, any Extension of Credit to be denominated in an Alternative
Currency or on any LIBOR Rate Loan, any day (i) that is a Business Day described
in clause (a) and that is also a day for trading by and between banks in
deposits for the applicable Permitted Currency in the London interbank market
and (ii) on which banks are open for the conduct of their domestic and
international banking business in the place where the Administrative Agent or
the Administrative Agent's Correspondent shall make available Extensions of
Credit in such Permitted Currency.
"Canadian Base Rate" shall mean, at any time, that annual rate of
interest quoted, published or announced by Bank of Montreal from time to time or
commonly known to be its Canadian Dollar Prime Rate (which may not necessarily
be its lowest or best rate then in effect for determining interest rates on
commercial loans made in Canada by it), as adjusted to conform to changes in
such rate as of the opening of business on the date of any such change in such
rate without notice to any Borrower, plus the Applicable Margin with respect to
Base Rate Loans in effect at such time. Each Loan or portion thereof bearing
interest based on the Canadian Dollar Prime Rate shall be a "Canadian Base Rate
Loan."
"Canadian Borrowers" means the collective reference to all Borrowers
organized under the laws of Canada or any province thereof.
"Canadian Dollars" means, at any time of determination, the then official
currency of Canada.
"Canadian Law" means all applicable provisions of constitutions, laws,
statutes, treaties, rules, regulations and orders of Canada and any political
subdivision thereof and all orders and decrees of all courts and arbitrators of
such jurisdictions.
"Canadian Plan" means any employee benefit plan which ACC or any
Subsidiary thereof maintains or to which it is obligated to contribute and which
is subject to any Canadian federal or provincial law relating to employee
benefit plans, pension benefits or retirement savings.
"Canadian Security Documents" means the collective reference to
documents set forth on Schedule 1.3 and any other agreement or writing pursuant
to which a Canadian Borrower or Canadian Subsidiary pledges or grants a security
interest in its assets in order to secure the payment and/or performance of any
Canadian Borrower under a Loan Document, in each case as amended, restated or
otherwise modified.
"Canadian Subsidiary" means a Subsidiary organized under the laws of
Canada or any province thereof.
"Canadian Termination Event" means any termination of a Canadian Plan
or any other event or condition which would constitute grounds for or result in
(a) the termination of a Canadian Plan; or (b) the appointment of a trustee to
administer any Canadian Plan; or (c) the partial or complete withdrawal of ACC
or any of its Subsidiaries from a Canadian Plan; or (d) the imposition of a
lien, charge or prior claim on the assets of a Canadian Plan; or (d) the
reorganization or insolvency of a Canadian Plan; or (e) a material liability of
any applicable
Borrower or Borrowers to a Canadian Plan or, in the reasonable opinion of any
firm of independent Canadian chartered accountants or actuaries, a reasonable
likelihood of such a material liability; or (f) a material liability of any
applicable Borrower or Borrowers to any federal or provincial Governmental
Authority with respect to a Canadian Plan or, in the reasonable opinion of any
firm of independent Canadian chartered accountants or actuaries, a reasonable
likelihood of such a material liability.
"Capital Asset" means, with respect to ACC and its Subsidiaries, any
asset that would, in accordance with GAAP, be required to be classified and
accounted for as a capital asset on a Consolidated balance sheet of ACC and its
Subsidiaries.
"Capital Expenditures" means, with respect to ACC and its Subsidiaries
for any period, the aggregate cost of all Capital Assets acquired by any such
Person during such period, determined in accordance with GAAP; provided, that
the aggregate purchase price with respect to any acquisition or Controlled
Venture permitted under Section 10.4(c) will not be included in Capital
Expenditures.
"Capital Lease" means, with respect to ACC and its Subsidiaries, any
lease of any property that would, in accordance with GAAP, be required to be
classified and accounted for as a capital lease on a Consolidated balance sheet
of ACC and its Subsidiaries.
"Change in Control" shall have the meaning assigned thereto in Section
12.1(i).
"Closing Date" means the date of this Agreement or such later Business
Day upon which each condition described in Article V shall be satisfied or
waived in all respects in a manner acceptable to the Agents in their sole
discretion.
"Code" means the Internal Revenue Code of 1986, and the rules and
regulations thereunder, each as amended or supplemented from time to time.
"Collateral" means any assets pledged by ACC or any of its Subsidiaries
to the Lenders or to the Administrative Agent for the ratable benefit of the
Agents and the Lenders in order to secure the Obligations or any portion
thereof.
"Commitment" means, as to any Lender, the obligation of such Lender to
make Loans hereunder and issue or participate in Letters of Credit hereunder in
an aggregate outstanding principal amount not to exceed at any time the amount
set forth opposite such Lender's name on Schedule 1.1, as the same may be
reduced or modified at any time or from time to time pursuant to the terms
hereof.
"Commitment Percentage" means, as to any Lender at any time, the ratio
of (a) the amount of the Commitment of such Lender to (b) the Aggregate
Commitment of all of the Lenders.
"Communications License" means any long distance telecommunications or
other license, permit, consent, certificate of compliance, franchise, approval,
waiver or authorization granted or
issued by the FCC, CRTC, DTI, OFTEL, the Regulating Authority for
Telecommunications and Postal Services (Regulierungsbehorde fur
Telekommunikation und Post) or other applicable Governmental Authority
including, without limitation, any of the foregoing authorizing or permitting
the acquisition, construction or operation of Network Facilities or any other
long distance telecommunications system.
"Consolidated" means, when used with reference to financial statements
or financial statement items of ACC and its Subsidiaries, such statements or
items on a consolidated basis in accordance with applicable principles of
consolidation under GAAP.
"Contingent Obligation" means, with respect to ACC and its
Subsidiaries, without duplication, any obligation, contingent or otherwise, of
any such Person pursuant to which such Person has directly or indirectly
guaranteed any Debt or other obligation of any other Person and, without
limiting the generality of the foregoing, any obligation, direct or indirect,
contingent or otherwise, of any such Person (a) to purchase or pay (or advance
or supply funds for the purchase or payment of) such Debt or other obligation
(whether arising by virtue of partnership arrangements, by agreement to keep
well, to purchase assets, goods, securities or services, to take-or-pay, or to
maintain financial statement condition or otherwise) or (b) entered into for the
purpose of assuring in any other manner the obligee of such Debt or other
obligation of the payment thereof or to protect such obligee against loss in
respect thereof (in whole or in part); provided, that the term Contingent
Obligation shall not include endorsements for collection or deposit in the
ordinary course of business.
"Controlled Venture" means any joint venture with respect to which ACC
beneficially owns a greater than 66.6% equity interest.
"Credit Facility" means the collective reference to the revolving
credit facility and swingline facility established pursuant to Article II hereof
and the L/C Facility.
"CRTC" means the Canadian Radio-Television and Telecommunications
Commission or any successor Governmental Authority.
"Debt" means, with respect to ACC and its Subsidiaries at any date and
without duplication, the sum of the following calculated in accordance with
GAAP: (a) all liabilities, obligations and indebtedness for borrowed money
including but not limited to obligations evidenced by bonds, debentures, notes
or other similar instruments of any such Person, (b) all obligations to pay the
deferred purchase price of property or services of any such Person, except trade
payables arising in the ordinary course of business not more than ninety (90)
days past due, (c) all obligations of any such Person as lessee under Capital
Leases, (d) all Debt of any other Person secured by a Lien on any asset of any
such Person, (e) all Contingent Obligations of any such Person and (f) all
obligations, contingent or otherwise, of any such Person relative to the face
amount of letters of credit, whether or not drawn, including without limitation
any Reimbursement Obligation, and banker's acceptances issued for the account of
any such Person.
"Default" means any of the events specified in Section 12.1 which with
the passage of time, the giving of notice or any other condition, would
constitute an Event of Default.
"Deutschemarks" means, at any time of determination, the then official
currency of the Federal Republic of Germany, subject to Section 4.7.
"Documentation Agent" means Fleet in its capacity as Documentation
Agent hereunder. "Dollars" or "$" means, unless otherwise qualified, the then
official currency of the United States of America.
"Dollar Amount" means (a) with respect to each Loan made or continued
(or to be made or continued), or each Letter of Credit issued (or to be issued),
in Dollars, the principal amount thereof and (b) with respect to each Loan made
or continued (or to be made or continued), or each Letter of Credit issued (or
to be issued), in an Alternative Currency, the amount of Dollars which is
equivalent to the principal amount of such Extension of Credit at the most
favorable spot exchange rate determined by the Administrative Agent at
approximately 11:00 A.M. (Charlotte time) two (2) Business Days before such
Extension of Credit is made, continued or issued (or to be made, continued or
issued). When used with respect to any other sum expressed in an Alternative
Currency, "Dollar Amount" shall mean the amount of Dollars which is equivalent
to the amount so expressed in such Alternative Currency at the most favorable
spot exchange rate determined by the Administrative Agent to be available to it
at the relevant time.
"Domestic Borrowers" means the collective reference to all Borrowers
organized under the laws of any State of the United States or the District of
Columbia.
"Domestic Subsidiary" means a Subsidiary organized under the laws of
any State of the United States or the District of Columbia.
"DTI" means the Department of Trade and Industry of the United Kingdom
or any successor Governmental Authority.
"Eligible Assignee" means, with respect to any assignment of the
rights, interest and obligations of a Lender hereunder, a Person that is at the
time of such assignment (a) a commercial bank organized under the laws of the
United States or any state thereof, having combined capital and surplus in
excess of $500,000,000, (b) a finance company, insurance company or other
financial institution which in the ordinary course of business extends credit of
the type extended hereunder and that has total assets in excess of
$1,000,000,000, (c) already a Lender hereunder (whether as an original party to
this Agreement or as the assignee of another Lender) or (d) the successor
(whether by transfer of assets, merger or otherwise) to all or substantially all
of the commercial lending business of the assigning Lender, and, in the case of
(a), (b) or any other Person, has been approved in writing as an Eligible
Assignee by ACC and the Administrative Agent.
"Employee Benefit Plan" means any employee benefit plan within the
meaning of Section 3(3) of ERISA which (i) is maintained for employees of ACC or
any ERISA Affiliate or (ii) has at any time within the preceding six years been
maintained for the employees of ACC or any current or former ERISA Affiliate.
"Environmental Laws" means any and all federal, state, provincial and
local laws, statutes, ordinances, rules, regulations, permits, licenses,
approvals, interpretations and orders of courts or Governmental Authorities,
relating to the protection of human health or the environment, including, but
not limited to, requirements pertaining to the manufacture, processing,
distribution, use, treatment, storage, disposal, transportation, handling,
reporting, licensing, permitting, investigation or remediation of Hazardous
Materials.
"ERISA" means the Employee Retirement Income Security Act of 1974, and
the rules and regulations thereunder, each as amended, restated or otherwise
modified from time to time.
"ERISA Affiliate" means any Person who together with the ACC is treated
as a single employer within the meaning of Section 414(b), (c), (m) or (o) of
the Code or Section 4001(b) of ERISA.
"Event of Default" means any of the events specified in Section 12.1,
provided that any requirement for passage of time, giving of notice, or any
other condition, has been satisfied.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Existing Letters of Credit" means letters of credit issued pursuant to
the First Amended and Restated Credit Agreement which remain outstanding on the
Closing Date, including but not limited to the German letter of credit issued
pursuant to the waiver letter dated as of August 19, 1997.
"Extensions of Credit" means, as to any Lender at any time, an amount
equal to the sum of (a) the aggregate principal Dollar Amount of all Loans made
by such Lender then outstanding and (b) such Lender's Commitment Percentage of
the L/C Obligations then outstanding.
"FCC" means the Federal Communications Commission or any successor
Governmental Authority.
"Federal Funds Rate" means, the rate per annum (rounded upwards, if
necessary, to the next higher 1/100th of 1%) representing the daily effective
federal funds rate as quoted by the Administrative Agent and confirmed in
Federal Reserve Board Statistical release H.15 (519) or any successor or
substitute publication selected by such Agent. If, for any reason, such rate is
not available, then "Federal Funds Rate" shall mean a daily rate which is
determined, in the opinion of the Administrative Agent, to be the rate at which
federal funds are being offered for sale in the national federal funds market at
9:00 a.m. (Charlotte time). The rate for a weekend or holiday shall be the same
as the rate for the most immediate preceding Business Day.
"First Amended and Restated Credit Agreement" means the Amended and
Restated Credit Agreement dated as of January 14, 1997, by and among ACC, and
certain Subsidiaries thereof designated therein, as Borrowers, ACC, as
Guarantor, the lenders referred to therein, First Union, as Managing Agent and
Administrative Agent, and Fleet National Bank, as Managing Agent, as modified by
the letter agreement dated August 19, 1997 and the letter agreement dated
October 27, 1997.
"First Union" means First Union National Bank (formerly known as First
Union National Bank of North Carolina), a national banking association, and its
successors.
"Fiscal Year" means the fiscal year of ACC and its Subsidiaries ending
on December 31.
"Fixed Charges" means, with respect to ACC and its Subsidiaries, for
any period, the following without duplication, each calculated for such period
in accordance with GAAP: (a) all principal payments or similar amounts required
to be paid with respect to Total Debt during such period plus (b) Interest
Expense required to be paid during such period plus (c) total cash dividends or
distributions paid or payable by ACC during such period plus (d) all payments in
respect of any retirement, redemption or other acquisition of the capital stock
of ACC and its Subsidiaries consummated during such period plus (e) all Capital
Expenditures during such period plus (f) all income and franchise taxes paid or
payable in cash during such period.
"Fleet" means Fleet National Bank, a national banking association, and
its successors.
"GAAP" means generally accepted accounting principles, as recognized by
the American Institute of Certified Public Accountants and the Financial
Accounting Standards Board, consistently applied and maintained on a consistent
basis for ACC and its Subsidiaries throughout the period indicated.
"German Base Rate" shall mean, at any time, that rate per annum
announced by Deutsche Bundesbank Frankfurt to be its Lombard Rate (Lombardsatz)
from time to time (which may not necessarily be its lowest or best rate), as
adjusted to conform to changes as of the opening of business on the date of any
such change in such rate, plus the sum of (a) the Applicable Margin with respect
to Base Rate Loans in effect at such time and (b) two percent (2%). Each Loan or
portion thereof bearing interest based on the German Base Rate shall be a
"German Base Rate Loan."
"German Borrowers" means the collective reference to all Borrowers
organized under the laws of the Federal Republic of Germany or any subdivision
thereof.
"German Law" means all applicable provisions of constitutions, laws,
statutes, treaties, rules, regulations and orders of the Federal Republic of
Germany and any political subdivision thereof and all orders and decrees of all
courts and arbitrators of such jurisdictions.
"German Plan" means any employee benefit plan which ACC or any
Subsidiary thereof maintains or to which it is obligated to contribute and which
is subject to any German federal or
provincial law or any German contract relating to employee benefit plans,
pension benefits or retirement savings.
"German Pledge Agreement" means the Pledge Agreement dated on or about
the date hereof, executed by ACC in favor of the Lenders, as described on
Schedule 1.4, as amended, restated or otherwise modified.
"German Security Documents" means the collective reference to the
German Pledge Agreement and the other documents set forth on Schedule 1.4 and
any other agreement or writing pursuant to which a German Borrower or German
Subsidiary pledges or grants a security interest in its assets in order to
secure the payment and/or performance of any German Borrower under a Loan
Document, in each case as amended, restated or otherwise modified.
"German Subsidiary" means a Subsidiary organized under the laws of the
Federal Republic of Germany or any subdivision thereof.
"Governmental Approvals" means all authorizations, consents, approvals,
licenses and exemptions of, registrations and filings with, and reports to, all
Governmental Authorities, including without limitation all Communications
Licenses and PUC Authorizations.
"Governmental Authority" means any nation, province, state or political
subdivision thereof, and any government or any Person exercising executive,
legislative, regulatory or administrative functions of or pertaining to
government, and any corporation or other entity owned or controlled, through
stock or capital ownership or otherwise, by any of the foregoing, including
without limitation the FCC, CRTC, DTI, OFTEL, any PUC and the Regulating
Authority for Telecommunications and Postal Services (Regulierungsbehorde fur
Telekommunikation und Post).
"Guaranteed Obligations" shall have the meaning assigned thereto in
Section 11.1.
"Guarantor" means ACC in its capacity as guarantor under Article XI.
"Guaranty" means the unconditional guaranty agreement of ACC set forth
in Article XI.
"Hazardous Materials" means any substances or materials (a) which are
or become defined as hazardous wastes, hazardous substances, pollutants,
contaminants or toxic substances under any Environmental Law, (b) which are
toxic, explosive, corrosive, flammable, infectious, radioactive, carcinogenic,
mutagenic or otherwise harmful to human health or the environment and are or
become regulated by any Governmental Authority, (c) the presence of which
require investigation or remediation under any Environmental Law or common law,
(d) the discharge or emission or release of which requires a permit or license
under any Environmental Law or other Governmental Approval, (e) which are deemed
to constitute a nuisance, a trespass or pose a health or safety hazard to
persons or neighboring properties, (f) which are materials consisting of
underground or aboveground storage tanks, whether empty, filled or partially
filled with any substance or (g) which contain, without limitation, asbestos,
polychlorinated biphenyls, urea formaldehyde
foam insulation, petroleum hydrocarbons, petroleum derived substances or waste,
crude oil, nuclear fuel, natural gas or synthetic gas.
"Hedging Agreement" means any agreement with respect to an interest
rate swap, collar, cap, floor or a forward rate agreement or other agreement
regarding the hedging of interest rate or currency risk exposure executed in
connection with hedging the interest rate or currency exposure of the Borrowers,
and any confirming letter executed pursuant to such hedging agreement, all as
amended, restated or otherwise modified.
"Intercompany Note" shall have the meaning assigned thereto in Section
10.4(a).
"Intercompany Subordination Agreement" means the Second Amended and
Restated Subordination Agreement of even date substantially in the form of
Exhibit L, as amended, restated or otherwise modified, executed by the Borrowers
and other Subsidiaries party thereto with respect to the loans by ACC to such
Persons as described on Schedule 10.4.
"Interest Expense" means, with respect to ACC and its Subsidiaries for
any period, total interest expense of ACC and its Subsidiaries (including
without limitation, interest expense attributable to Capital Leases and any
other capitalized interest expense) and, to the extent not included therein,
fees and other charges payable with respect to all Debt, (including fees and
charges payable with respect to Hedging Agreements, letters of credit and
similar investments), all determined on a Consolidated basis for such period in
accordance with GAAP.
"Interest Period" shall have the meaning assigned thereto in Section
4.1(b).
"Issuing Lender" means First Union in its capacity as issuer of any
Letter of Credit.
"Joinder Agreement" means an Second Amended and Restated Joinder Agreement
substantially in the form of Exhibit K executed by each Material Subsidiary in
accordance with Section 8.12, as amended, restated or otherwise modified.
"Landlord Consents" means the Landlord Agreements delivered by or on
behalf of a Borrower pursuant to the First Amended and Restated Credit
Agreement, as any such Landlord Agreement may be amended, restated or otherwise
modified.
"L/C Commitment" means the lesser of (a) Ten Million Dollars
($10,000,000) and (b) the Aggregate Commitment.
"L/C Facility" means the letter of credit facility established pursuant
to Article III hereof.
"L/C Obligations" means at any time, an amount equal to the sum of (a)
the aggregate undrawn and unexpired amount of the then outstanding Letters of
Credit and (b) the aggregate amount of drawings under Letters of Credit which
have not then been reimbursed pursuant to Section 3.5.
"L/C Participants" means the collective reference to all the Lenders
other than the Issuing Lender.
"Lender" means each Person executing this Agreement as a Lender set
forth on the signature pages hereto and each Person that hereafter becomes a
party to this Agreement as a Lender pursuant to Section 14.10.
"Lending Office" means, with respect to any Lender, the office of such
Lender maintaining such Lender's Extensions of Credit.
"Letters of Credit" shall have the meaning assigned thereto in Section
3.1.
"Leverage Ratio" shall have the meaning assigned thereto in Section
9.1.
"LIBOR" means the rate of interest per annum determined on the basis of
the rate for deposits in the currency in which the corresponding loan is to be
denominated in an amount substantially equal to the corresponding loan for a
period equal to the applicable Interest Period appearing on the relevant
Telerate Page (rounded upward, if necessary, to the nearest one-sixteenth of one
percent (1/16%)) as of 11:00 a.m. (London time) two Business Days prior to the
first day of the applicable Interest Period. In the event that such rate does
not appear on such a Telerate Page, "LIBOR" shall be determined by the
Administrative Agent to be the arithmetic average (rounded upward, if necessary,
to the nearest one-sixteenth of one percent (1/16%)) of the rate per annum at
which deposits in the Permitted Currency in which the Loan bearing interest
based upon such rate is denominated would be offered by first class banks in the
London interbank market to the Administrative Agent (or the Administrative
Agent's Correspondent) at approximately 11:00 a.m. (London time) two Business
Days prior to the first day of the applicable Interest Period for a period equal
to such Interest Period and in an amount substantially equal to the amount of
the applicable Loan.
"LIBOR Rate" means the rate per annum equal to (a) LIBOR divided
by (b) one (1) less the Reserve Percentage.
"LIBOR Rate Loan" means any Loan bearing interest at a rate determined
with reference to the LIBOR Rate as provided in Section 4.1(a) hereof.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest, hypothecation or encumbrance of any kind in respect
of such asset. For the purposes of this Agreement, a Person shall be deemed to
own subject to a Lien any asset which it has acquired or holds subject to the
interest of a vendor or lessor under any conditional sale agreement, Capital
Lease or other title retention agreement relating to such asset.
"Loan" means any Revolving Credit Loan or any Swingline Loan made to
any Borrower pursuant to Section 2.1 or 2.2, respectively, and all such Loans
collectively as the context requires.
"Loan Documents" means, collectively, this Agreement, the Notes, the
Applications, the Letters of Credit, any Joinder Agreement, the Security
Documents and any supplements thereto executed in connection with any Joinder
Agreement, any Hedging Agreement executed by any Lender, the Intercompany
Subordination Agreement and each other document, instrument and agreement
executed and delivered by any Borrower, a Subsidiary thereof or their counsel in
connection with this Agreement or otherwise referred to herein or contemplated
hereby, all as may be amended, restated or otherwise modified from time to time.
"Managing Agents" means First Union and Fleet in their capacity as
managing agents hereunder, and any successor thereto in each case appointed
pursuant to Section 13.9; each, a "Managing Agent."
"Material Adverse Effect" means, with respect to the Domestic
Borrowers, Canadian Borrowers, German Borrowers or U.K. Borrowers, a material
adverse effect on the properties, business, prospects, operations or condition
(financial or otherwise) of any such group of Borrowers or the ability of any
such group of Borrowers to perform its obligations under the Loan Documents to
which it is a party.
"Material Contract" means (a) any contract or other agreement, written
or oral, of any Borrower or any of its Subsidiaries involving monetary liability
of or to any such Person in an amount in excess of $5,000,000 per annum, or (b)
any other contract or agreement, written or oral, of any Borrower or any of its
Subsidiaries the failure to comply with which could reasonably be expected to
have a Material Adverse Effect.
"Material Subsidiary" means any direct or indirect Subsidiary of ACC
which Subsidiary has total assets equal to or in excess of $5,000,000.
"Mortgage" means a Leasehold Mortgage delivered pursuant to the
Original Credit Agreement (as modified by the Modification to Leasehold Mortgage
delivered pursuant to the First Amended and Restated Credit Agreement and the
modification to Leasehold Mortgage substantially in the form of Exhibit J) or
any other real property security agreement delivered by a Borrower pursuant to
which a Borrower grants a Lien on its interest in a parcel of real property to
the Administrative Agent for the benefit of itself and the Lenders.
"Multiemployer Plan" means a "multiemployer plan" as defined in Section
4001(a)(3) of ERISA to which ACC or any ERISA Affiliate is making, or is
accruing an obligation to make, contributions within the preceding six years.
"Net Cash Proceeds" means, as applicable, (a) with respect to any sale
of assets, the gross cash proceeds received by ACC or any of its Subsidiaries
from such sale less the sum of (i) all legal, title, recording, transfer and
income tax expenses, commissions and similar fees and expenses incurred, and all
other federal, state, provincial, local and foreign taxes assessed in connection
therewith and (ii) the aggregate outstanding principal amount of, premium, if
any, and interest on any Debt secured by a Lien on the asset (or a portion
thereof) sold, which Debt is required to be repaid in connection with such sale
of assets, (b) with respect to any offering of debt
or equity securities, the gross cash proceeds received by ACC or any of its
Subsidiaries therefrom less all legal, underwriting and similar fees and
expenses incurred in connection therewith and (c) with respect to any payment
under an insurance policy, the amount of cash proceeds received by ACC or its
applicable Subsidiary from the related insurance company.
"Net Income" means, with respect to ACC and its Subsidiaries for any
period, the Consolidated net income (or loss) of ACC and its Subsidiaries for
such period determined in accordance with GAAP; provided, that there shall be
excluded from net income (or loss) (a) if the ability of ACC to receive, recover
or repatriate cash or receive economic benefits (other than any increase in
value of ACC's stock or ownership interest in a Subsidiary thereof) from any of
its Subsidiaries is materially limited or restricted for a material period of
time at any date of determination by operation of the terms of the charter of
such Subsidiary or any agreement, instrument, or Applicable Law, the portion of
the income of each such Subsidiary so restricted and (b) the effect of any
currency translation adjustments.
"Network Agreement" means any document or agreement entered into by ACC
or any of its Subsidiaries regarding the use, operation or maintenance of, or
otherwise concerning, any of the Network Facilities.
"Network Facilities" means the network of digital and analog facilities
owned or leased by ACC or any of its Subsidiaries.
"Net Worth" means, at any date of determination thereof, the sum of the
capital stock (excluding treasury stock, cumulative translation adjustments and
capital stock subscribed and unissued) and retained earnings (including earned
surplus, capital surplus and the balance of the current profit and loss account
not transferrable to retained earnings) accounts of ACC and its Subsidiaries
appearing on a Consolidated balance sheet of ACC and its Subsidiaries prepared
in accordance with GAAP.
"Notes" means (a) the separate Second Amended and Restated Revolving
Credit Notes made by the applicable Borrower or Borrowers payable to the order
of each Lender, substantially in the form of Exhibit A-1 hereto with respect to
the Domestic Borrowers, Exhibit A-2 hereto with respect to the U.K. Borrowers,
Exhibit A-3 hereto with respect to the Canadian Borrowers, Exhibit A-4 hereto
with respect to the German Borrowers; (b) the separate Swingline Note and (c)
any amendments and modifications thereto, any substitutes therefor, and any
replacements, restatements, renewals or extension thereof, in whole or in part;
"Note" means any of such Notes.
"Notice of Account Designation" shall have the meaning assigned thereto
in Section 2.3(b).
"Notice of Borrowing" shall have the meaning assigned thereto in
Section 2.3(a).
"Notice of Conversion/Continuation" shall have the meaning assigned
thereto in Section 4.2.
"Notice of Prepayment" shall have the meaning assigned thereto in
Section 2.4(d).
"Obligations" means, in each case, whether now in existence or
hereafter arising: (a) the aggregate outstanding principal amount of and
interest on (including interest accruing after the filing of any bankruptcy or
similar petition) the Loans, (b) all payment and other net obligations owing by
a Borrower to any Lender or Agent under any Hedging Agreement permitted pursuant
to Section 10.13, (c) the L/C Obligations, (d) the obligations of the Guarantor
pursuant to Article XI and (e) all other fees and commissions (including
attorney's fees), charges, indebtedness, loans, liabilities, financial
accommodations, obligations, covenants and duties owing by a Borrower or the
Guarantor to the Lenders or to any Agent, of every kind, nature and description,
direct or indirect, absolute or contingent, due or to become due, contractual or
tortious, liquidated or unliquidated, and whether or not evidenced by any note,
and whether or not for the payment of money under or in respect of this
Agreement, any Note, any Letter of Credit or any of the other Loan Documents.
"Officer's Compliance Certificate" shall have the meaning assigned
thereto in Section 7.2.
"OFTEL" means the United Kingdom Office of Telecommunications or any
successor Governmental Authority.
"Operating Cash Flow" means, with respect to ACC and its Subsidiaries
for any period, the following, each calculated on a Consolidated basis for such
period without duplication in accordance with GAAP: (a) Net Income, plus (b) to
the extent deducted in determining Net Income (i) income and franchise taxes,
(ii) Interest Expense, (iii) amortization and depreciation and other similar
non-cash charges and (iv) charges associated with ACC's merger agreements with
U.S. Wats and Teleport Communications Group, Inc., respectively, which are
reflected as "nonrecurring charges" less (c) the sum of (i) interest income,
(ii) non-cash income, (iii) capitalized internally generated software costs and
expenses (provided that capitalized software costs relating to billing systems
shall be amortized over a period not to exceed 7 years) and (iv) any items of
gain (or plus any non-cash items of loss) which were included in determining Net
Income and were not realized in the ordinary course of business. For purposes of
calculating compliance with Article IX, Operating Cash Flow shall be adjusted in
a manner reasonably satisfactory to the Managing Agents to include as of the
first day of any calculation period any acquisition consummated during such
period in accordance with this Agreement and exclude as of the first day of any
calculation period any Subsidiary or assets sold in accordance with this
Agreement during such period.
"Original Credit Agreement" means the Credit Agreement dated as of July
21, 1995, by and among ACC, and certain Subsidiaries thereof designated therein,
as Borrowers, ACC, as Guarantor, the lenders referred to therein, First Union as
Managing Agent and Administrative Agent, and Fleet National Bank (as successor
to Shawmut Bank Connecticut, N.A.), as Managing Agent, as amended by a First
Amendment dated as of October 31, 1995 and a Second Amendment dated as of March
29, 1996, and as modified by certain waiver letters.
"Other Taxes" shall have the meaning assigned thereto in Section
4.12(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any successor
agency.
"Pension Plan" means any Employee Benefit Plan, other than a
Multiemployer Plan, which is subject to the provisions of Title IV of ERISA or
Section 412 of the Code and which (a) is maintained for employees of ACC or any
ERISA Affiliates or (b) has at any time within the preceding six years been
maintained for the employees of ACC or any of their current or former ERISA
Affiliates.
"Permitted Currency" means Dollars or an Alternative Currency, or each
such currency, as the context requires.
"Person" means an individual, corporation, partnership, association,
trust, business trust, limited liability company, joint venture, joint stock
company, pool, syndicate, sole proprietorship, unincorporated organization,
Governmental Authority or any other form of entity or group thereof.
"Pledge Agreements" means the collective reference to the ACC Pledge
Agreement and ACC National Pledge Agreement.
"Prime Rate" means, at any time, the rate of interest per annum
publicly announced from time to time by the Administrative Agent as its prime
rate. Each change in the Prime Rate shall be effective as of the opening of
business on the day such change in the Prime Rate occurs. The parties hereto
acknowledge that the rate announced publicly by the Administrative Agent as its
Prime Rate is an index or base rate and shall not necessarily be its lowest or
best rate charged to its customers or other banks.
"Pro Forma Debt Service" means, with respect to ACC and its
Subsidiaries at any date of determination, the sum of the following calculated
without duplication on a Consolidated pro forma basis for the period of four (4)
consecutive fiscal quarters immediately succeeding such date of determination in
accordance with GAAP: (a) all payments of principal or similar amounts required
to be paid with respect to Total Debt during such period based upon the
aggregate amount of outstanding Debt on such date of determination and (b)
Interest Expense required to be paid during such period based upon rates of
interest in effect on such date of determination.
"Projections" shall have the meaning assigned thereto in Section
7.1(c).
"PUC" means any state, provincial or other local regulatory agency or
body that exercises jurisdiction over the rates or services or the ownership,
construction or operation of any Network Facility or long distance
telecommunications systems or over Persons who own, construct or operate a
Network Facility or long distance telecommunications systems, in each case by
reason of the nature or type of the business subject to regulation and not
pursuant to laws and regulations of general applicability to Persons conducting
business in any such jurisdiction.
"PUC Authorizations" means all applications, filings, reports,
documents, recordings and registrations with, and all validations, exemptions,
franchises, waivers, approvals, orders or authorizations, consents, licenses,
certificates and permits from any PUC.
"Register" shall have the meaning assigned thereto in Section 14.10(d).
"Reimbursement Obligation" means the obligation of the Borrowers to
reimburse the Issuing Lender pursuant to Section 3.5 for amounts drawn under
Letters of Credit.
"Required Lenders" means, at any date, the holders of at least
fifty-one percent (51%) of the Revolving Credit Loans and L/C Obligations, or if
no Revolving Credit Loans or L/C Obligations are outstanding, any combination of
Lenders whose Commitment Percentages aggregate at least fifty-one percent (51%).
"Reserve Percentage" means the maximum daily arithmetic reserve
requirement imposed by the Board of Governors of the Federal Reserve System (or
any successor) under Regulation D on Eurocurrency liabilities (as defined in
Regulation D) for the applicable Interest Period as of the first day of such
Interest Period, but subject to any changes in such reserve requirement becoming
effective during the Interest Period. For purposes of calculating the Reserve
Percentage, the reserve requirement shall be as set forth in Regulation D
without benefit of credit for prorations, exemptions or offsets under Regulation
D, and further without regard to whether or not any Lender elects to actually
fund any Loan or portion thereof with Eurocurrency liabilities. Each calculation
by the Administrative Agent of the LIBOR Rate shall be conclusive and binding
for all purposes, absent manifest error.
"Revolving Credit Loans" means the collective reference to revolving
credit loans established pursuant to Section 2.1.
"Revolving Credit Termination Date" means the earliest of the dates
referred to in Section 2.7.
"Security Agreement" means the Second Amended and Restated Security
Agreement of even date substantially in the form of Exhibit I executed by the
Domestic Borrowers in favor of the Administrative Agent for the benefit of
itself and the Lenders, as amended, restated or otherwise modified.
"Security Documents" means the collective reference to the Security
Agreement, the Trademark Assignment, the Pledge Agreements, the Mortgages, the
Landlord Consents, the Canadian Security Documents, the U.K. Security Documents,
the German Security Documents and each other agreement or writing pursuant to
which ACC or any Subsidiary thereof pledges or grants a security interest in the
Collateral or such Person guaranties the payment and/or performance of the
Obligations or any portion thereof.
"Solvent" means, as to ACC and its Subsidiaries taken on a Consolidated
basis on a particular date, that such Persons (a) have capital sufficient to
carry on their business and transactions and all business and transactions in
which they are about to engage and are able to pay their debts as they mature,
(b) own property having a value at fair valuation greater than the amount
required to pay their probable liabilities (including contingencies), and (c) do
not believe
that they will incur debts or liabilities beyond their ability to pay such debts
or liabilities as they mature.
"Sterling" means, at any time of determination, the then official
currency of the United Kingdom, subject to Section 4.7 hereof.
"Sterling Base Rate" shall mean, at any time, that rate per annum
announced by Midland Bank plc to be its Sterling base rate (which may not
necessarily be its lowest or best rate), as adjusted to conform to changes as of
the opening of business on the date of any such change in such rate, plus the
sum of (a) the Applicable Margin with respect to Base Rate Loans in effect at
such time and (b) two percent (2%). Each Loan or portion thereof bearing
interest based on the Sterling Base Rate shall be a "Sterling Base Rate Loan."
"Sublimit" means the maximum aggregate principal Dollar Amount of
Extensions of Credit available at any time to the applicable Borrower or group
of Borrowers hereunder as set forth on Schedule 1.2. If a Sublimit on such
Schedule applies to more than one Borrower, such Sublimit shall be in the
aggregate amount available to all such Borrowers taken together, and not an
amount available to each such Borrower individually.
"Subordinated Debt" means any Debt designated as Subordinated Debt on
Schedule 6.1(t) hereof and any other Debt of ACC or any Subsidiary subordinated
in right and time of payment to the Obligations on terms reasonably satisfactory
to the Required Lenders.
"Subsidiary" means as to any Person, any corporation, partnership or
other entity of which more than fifty percent (50%) of the outstanding capital
stock or other ownership interests having ordinary voting power to elect a
majority of the board of directors or other managers of such corporation,
partnership or other entity is at the time, directly or indirectly, owned by or
the management is otherwise controlled by such Person (irrespective of whether,
at the time, capital stock of any other class or classes of such corporation
shall have or might have voting power by reason of the happening of any
contingency). Unless otherwise qualified, references to "Subsidiary" or
"Subsidiaries" herein shall refer to those of ACC.
"Supermajority Lenders" means, at any date, the holders of at least
sixty-six and two-thirds percent (66 2/3%) of the Revolving Credit Loans and L/C
Obligations, or if no Revolving Credit Loans or L/C Obligations are outstanding,
any combination of Lenders whose Commitment Percentages aggregate at least
sixty-six and two-thirds percent (66 2/3%).
"Swingline Commitment" means the lesser of (a) Three Million Dollars
($3,000,000) and (b) the Aggregate Commitment.
"Swingline Lender" means First Union in its capacity as swingline
lender hereunder.
"Swingline Loan" means any swingline loan made by the Swingline Lender
to a Borrower pursuant to Section 2.2, and all such Loans collectively as the
context requires.
"Swingline Note" means the separate Second Amended and Restated
Swingline Note made by the Domestic Borrowers payable to the order of the
Swingline Lender, substantially in the form of Exhibit A-5 hereto and any
amendments and modifications thereto, any substitutes therefor, and any
replacements, restatements, renewals or extension thereof, in whole or in part.
"Swingline Termination Date" means the earlier to occur of (a) the
resignation of First Union as Administrative Agent in accordance with Section
13.9 and (b) the Revolving Credit Termination Date.
"Taxes" shall have the meaning assigned thereto in Section 4.12(a).
"Termination Event" means: (a) a "Reportable Event" described in
Section 4043 of ERISA (other than a Reportable Event as to which the provision
of 30 days notice has been waived by the PBGC under applicable regulations); or
(b) the withdrawal of ACC or any ERISA Affiliate from a Pension Plan during a
plan year in which it was a "substantial employer" as defined in Section
4001(a)(2) of ERISA; or (c) the termination of a Pension Plan, the filing of a
notice of intent to terminate a Pension Plan or the treatment of a Pension Plan
amendment as a distress termination under Section 4041(c) of ERISA; or (d) the
institution of proceedings to terminate, or the appointment of a trustee with
respect to, any Pension Plan by the PBGC; or (e) any other event or condition
which would constitute grounds under Section 4042(a) of ERISA for the
termination of, or the appointment of a trustee to administer, any Pension Plan;
or (f) the partial or complete withdrawal of ACC or any ERISA Affiliate from a
Multiemployer Plan; or (g) the imposition of a Lien pursuant to Section 412 of
the Code or Section 302 of ERISA; or (h) any event or condition which results in
the reorganization or insolvency of a Multiemployer Plan under Sections 4241 or
4245 of ERISA; or (i) any event or condition which results in the termination of
a Multiemployer Plan under Section 4041A of ERISA or the institution by PBGC of
proceedings to terminate a Multiemployer Plan under Section 4042 of ERISA.
"Total Debt" means, with respect to ACC and its Subsidiaries at any
date of determination and without duplication, all Debt of ACC and its
Subsidiaries on a Consolidated basis.
"Trademark Assignment" means the Second Amended and Restated Trademark
Assignment of even date executed by ACC in favor of the Administrative Agent for
the benefit of itself and the Lenders, as amended, restated or otherwise
modified.
"UCC" means the Uniform Commercial Code as in effect in the State of
North Carolina.
"U.K. Borrowers" means the collective reference to all Borrowers
organized under the laws of the United Kingdom or any political subdivision
thereof.
"U.K. Guaranty Agreement" means the U.K. Guaranty Agreement set forth
on Schedule 1.5.
"U.K. Security Documents" means the collective reference to the U.K.
Guaranty Agreement, the other documents set forth on Schedule 1.5, and any
other agreement or writing
pursuant to which a U.K. Borrower or U.K. Subsidiary, pledges or grants a
security interest in the Collateral or any such Person guarantees or otherwise
secures the payment and/or performance of any obligation of a U.K. Borrower
under any Loan Document, in each case as amended, restated or otherwise
modified.
"U.K. Subsidiary" means a Subsidiary organized under the laws of the
United Kingdom or any political subdivision thereof.
"United States" means the United States of America.
"U.S. Wats Acquisition" means the acquisition by ACC or a Wholly-Owned
Subsidiary thereof of U.S. Wats, Inc. via a tax-free exchange of stock as
described in, and as approved by the lenders under the First Amended and
Restated Credit Agreement pursuant to, the letter dated October 27, 1997
executed by ACC and the lenders under the First Amended and Restated Credit
Agreement, and hereby approved by the Lenders hereunder.
"Uniform Customs" means the Uniform Customs and Practice for
Documentary Credits (1993 Revision),International Chamber of Commerce
Publication No. 500, as amended, restated or otherwise modified.
"Versatel Acquisition" means the acquisition by ACC or a Wholly-Owned
Subsidiary thereof of a majority of the capital stock of VersaTel Telecom B.V.,
a description of which has been provided to the Lenders prior to the Closing
Date.
"Wholly-Owned" means, with respect to a Subsidiary, a Subsidiary all of
the shares of capital stock or other ownership interests of which are, directly
or indirectly, owned or controlled by ACC and/or one or more of its Wholly-Owned
Subsidiaries.
SECTION 1.2. General. All terms of an accounting nature not
specifically defined herein shall have the meaning assigned thereto by GAAP.
Unless otherwise specified, a reference in this Agreement to a particular
section, subsection, Schedule or Exhibit is a reference to that section,
subsection, Schedule or Exhibit of this Agreement. Wherever from the context it
is appropriate, each term stated in either the singular or plural shall include
the singular and plural, and pronouns stated in the masculine, feminine or
neuter gender shall include the masculine, the feminine and the neuter. Any
reference herein to "Charlotte time" shall refer to the applicable time of day
in Charlotte, North Carolina.
SECTION 1.3. Other Definitions and Provisions.
(a) Use of Capitalized Terms. Unless otherwise defined therein, all
capitalized terms defined in this Agreement shall have the defined meanings when
used in this Agreement, the Notes and the other Loan Documents or any
certificate, report or other document made or delivered pursuant to this
Agreement.
(b) Miscellaneous. The words "hereof", "herein" and "hereunder" and
words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement.
ARTICLE II
CREDIT FACILITY
SECTION 2.1. Revolving Credit Loans. Subject to the terms and
conditions of this Agreement, each Lender severally agrees to make Revolving
Credit Loans in a Permitted Currency to the applicable Borrower or Borrowers
from time to time from the Closing Date through the Revolving Credit Termination
Date as requested by such Borrower or Borrowers in accordance with the terms of
Sections 2.1 and 2.3; provided, that, based upon the Dollar Amount of all
Extensions of Credit, (a) the maximum amount of Revolving Credit Loans available
to each Borrower or Borrowers at any time hereunder shall not exceed the
Sublimit applicable to such Borrower or Borrowers, (b) the aggregate outstanding
principal amount of all outstanding Revolving Credit Loans (after giving effect
to any amount requested) shall not exceed the Aggregate Commitment less the sum
of the aggregate outstanding principal amount of all outstanding Swingline Loans
and the L/C Obligations and (c) the aggregate outstanding principal amount of
Revolving Credit Loans from any Lender to the Borrowers shall not at any time
exceed such Lender's Commitment. Each Revolving Credit Loan by a Lender shall be
in a principal amount equal to such Lender's Commitment Percentage of the
aggregate outstanding principal amount of Revolving Credit Loans requested on
such occasion. Revolving Credit Loans to be made in an Alternative Currency
shall be funded in an amount equal to the Alternative Currency Amount of such
Loan. Revolving Credit Loans to the Domestic Borrowers shall be denominated in
Dollars, Revolving Credit Loans to the U.K. Borrowers shall be denominated in
Sterling, Revolving Credit Loans to the Canadian Borrowers shall be denominated
in Canadian Dollars and Revolving Credit Loans to the German Borrowers shall be
denominated in Deutschemarks. Subject to the terms and conditions hereof, the
Borrowers may borrow, repay and reborrow Revolving Credit Loans hereunder until
the Revolving Credit Termination Date.
SECTION 2.2. Swingline Loans.
(a) Availability. Subject to the terms and conditions of this
Agreement, the Swingline Lender agrees to make Swingline Loans to the Domestic
Borrowers from time to time from the Closing Date through the Swingline
Termination Date; provided, that (i) all Swingline Loans shall be denominated in
Dollars and (ii) the aggregate outstanding principal amount of all Swingline
Loans (after giving effect to any amount requested), shall not exceed the lesser
of (A) the Aggregate Commitment less the sum of the Dollar Amount of the
aggregate outstanding principal amount of all Revolving Credit Loans and the L/C
Obligations and (B) the Swingline Commitment.
(b) Refunding.
(i) Swingline Loans (except with respect to any Swingline Loan
extended after the occurrence and during the continuance of an Event of Default
of which the Administrative Agent has received notice which has not been waived
by the Required Lenders or the Lenders, as applicable) shall be refunded to the
Swingline Lender by the Lenders on demand by the Swingline Lender. Such
refundings shall be made by the Lenders in accordance with their respective
Commitment Percentages and shall thereafter be reflected as Revolving Credit
Loans of the Lenders on the books and records of the Administrative Agent. Each
Lender shall fund its respective Commitment Percentage of Revolving Credit Loans
as required to repay Swingline Loans outstanding to the Swingline Lender upon
demand by the Swingline Lender but in no event later than 2:00 p.m. (Charlotte
time) on the next succeeding Business Day after such demand is made. No Lender's
obligation to fund its respective Commitment Percentage of a Swingline Loan
shall be affected by any other Lender's failure to fund its Commitment
Percentage of a Swingline Loan, nor shall any Lender's Commitment Percentage be
increased as a result of any such failure of any other Lender to fund its
Commitment Percentage.
(ii) The Domestic Borrowers shall pay to the Swingline Lender
on demand the amount of such Swingline Loans to the extent that the Lenders fail
to repay in full the outstanding Swingline Loans requested or required to be
refunded. In addition, the Domestic Borrowers hereby authorize the
Administrative Agent to charge any account maintained by it with the Swingline
Lender (up to the amount available therein) in order to immediately pay the
Swingline Lender the amount of such Swingline Loans to the extent amounts
received from the Lenders are not sufficient to repay in full the outstanding
Swingline Loans requested or required to be refunded. If any portion of any such
amount paid to the Swingline Lender shall be recovered by or on behalf of the
Domestic Borrowers from the Swingline Lender in bankruptcy or otherwise, the
loss of the amount so recovered shall be ratably shared among all the Lenders in
accordance with their respective Commitment Percentages.
(iii) Each Lender acknowledges and agrees that its obligation
to refund Swingline Loans (except any Swingline Loan extended after the
occurrence and during the continuance of an Event of Default which has not been
waived by the Required Lenders or the Lenders, as applicable) in accordance with
the terms of this Section 2.2 is absolute and unconditional and shall not be
affected by any circumstance whatsoever; provided, that if prior to the
refunding of any outstanding Swingline Loans pursuant to this Section 2.2, one
of the events described in Section 12.1(j) or (k) shall have occurred, each
Lender will, on the date the applicable Revolving Credit Loan would have been
made, purchase an undivided participating interest in the Swingline Loan to be
refunded in an amount equal to its Commitment Percentage of the aggregate amount
of such Swingline Loan. Each Lender will immediately transfer to the Swingline
Lender, in immediately available funds, the amount of its participation and upon
receipt thereof the Swingline Lender will deliver to such Lender a certificate
evidencing such participation dated the date of receipt of such funds and for
such amount. Whenever, at any time after the Swingline Lender has received from
any Lender such Lender's participating interest in a Swingline Loan, the
Swingline Lender receives any payment on account thereof, the Swingline Lender
will distribute to such Lender its participating interest in such amount
(appropriately adjusted, in the case of interest payments, to reflect the period
of time during which such Lender's participating interest was outstanding and
funded).
SECTION 2.3. Procedure for Advances of Revolving Credit and Swingline
Loans.
(a) Requests for Borrowing. The applicable Borrower or Borrowers shall
give the Administrative Agent irrevocable prior written notice in the form
attached hereto as Exhibit B (a "Notice of Borrowing") (i) not later than 11:00
a.m. (Charlotte time) (A) on or prior to the same Business Day for each
Swingline Loan, (B) at least one Business Day before each Base Rate Loan
denominated in Dollars, (C) at least three (3) Business Days before each Base
Rate Loan denominated in an Alternative Currency and (D) at least three (3)
Business Days before each LIBOR Rate Loan denominated in Dollars and (ii) not
later than 9:00 a.m. (Charlotte time) at least three (3) Business Days before
each LIBOR Rate Loan to be denominated in an Alternative Currency of its
intention to borrow, specifying (A) the date of such borrowing, which shall be a
Business Day, (B) whether such Loan is to be a Revolving Credit Loan or a
Swingline Loan, (C) if such Loan is to be a Revolving Credit Loan, whether such
Loan shall be denominated in Dollars or an Alternative Currency, (D) the amount
of such borrowing, which shall be with respect to LIBOR Rate Loans denominated
in Dollars in an aggregate principal amount of $3,000,000 or a whole multiple of
$1,000,000 in excess thereof (and with respect to LIBOR Rate Loans denominated
in an Alternative Currency, the Dollar Amount in each case thereof), with
respect to Base Rate Loans in an aggregate principal amount of $1,500,000 or a
whole multiple of $500,000 in excess thereof, and with respect to Swingline
Loans in an aggregate principal amount of $100,000 or a whole multiple thereof,
(E) if denominated in Dollars, whether the Revolving Credit Loans are to be
LIBOR Rate Loans or Base Rate Loans and (F) in the case of a LIBOR Rate Loan,
the duration of the Interest Period applicable thereto. Notices received after
11:00 a.m. (Charlotte time) shall be deemed received on the next Business Day.
The Administrative Agent shall promptly notify (and in any event provide same
day notice to) the Lenders of each Notice of Borrowing with respect to a
Revolving Credit Loan.
(b) Disbursement of Revolving Credit Loans Denominated in Dollars and
Swingline Loans. Not later than 2:00 p.m. (Charlotte time) on the proposed
borrowing date for any Loan denominated in Dollars, (i) each Lender will make
available to the Administrative Agent, for the account of the applicable
Borrower or Borrowers, at the office of the Administrative Agent in Dollars in
funds immediately available to the Administrative Agent, such Lender's
Commitment Percentage of the requested borrowing to be made on such borrowing
date and (ii) the Swingline Lender will make available to the Administrative
Agent, for the account of the Borrower, at the office of the Administrative
Agent in funds immediately available to the Administrative Agent, the Swingline
Loans to be made to any Borrower or Borrowers on such borrowing date. The
Borrowers hereby irrevocably authorize the Administrative Agent to disburse the
proceeds of each borrowing requested pursuant to this Section 2.3(b) in
immediately available funds by crediting or wiring such proceeds to the deposit
account of the applicable Borrower or Borrowers identified in the most recent
Notice of Account Designation substantially in the form of Exhibit F hereto (a
"Notice of Account Designation") delivered by the Borrowers to the Agent or as
may be otherwise agreed upon by such Borrower or Borrowers and the
Administrative Agent from time to time. Subject to Section 4.6 hereof, the
Administrative Agent shall not be obligated to disburse the portion of the
proceeds of any Loan requested pursuant to this Section 2.3 to the extent that
any
Lender has not made available to the Administrative Agent its Commitment
Percentage of such Loan. Revolving Credit Loans to be made for the purpose of
refunding Swingline Loans shall be made by the Lenders as provided in Section
2.2(b) hereof.
(c) Disbursement of Revolving Credit Loans Denominated in an
Alternative Currency. Not later than 11:00 a.m. (the time of the Administrative
Agent's Correspondent) on the proposed borrowing date for any Revolving Credit
Loan denominated in an Alternative Currency, each Lender will make available to
the Administrative Agent at the office of the Administrative Agent's
Correspondent in the requested Alternative Currency in funds immediately
available to the Administrative Agent, such Lender's Commitment Percentage of
the requested borrowing to be denominated in such Alternative Currency. The
Borrowers hereby irrevocably authorize the Administrative Agent to disburse the
proceeds of each borrowing requested pursuant to this Section 2.3(c) in
immediately available funds by crediting or wiring such proceeds to an account
of the applicable Borrower identified in the most recent Notice of Account
Designation delivered by the Borrowers to the Agent or as may be otherwise
agreed upon by such Borrower or Borrowers and the Administrative Agent from time
to time.
(d) Availability. The Administrative Agent shall not be obligated to
disburse the proceeds of any Revolving Credit Loan requested pursuant to this
Section 2.3 until each Lender shall have made available to the Administrative
Agent its Commitment Percentage of such Loan.
SECTION 2.4. Repayment of Extensions of Credit.
(a) Repayment. (i) The applicable Borrower or Borrowers shall repay the
aggregate outstanding principal amount of all Revolving Credit Loans on the
Revolving Credit Termination Date in the applicable Permitted Currency, if not
sooner repaid, and (ii) the Domestic Borrowers shall repay the aggregate
outstanding principal amount of all Swingline Loans in accordance with Section
2.2(b), together, in each such case, with all accrued but unpaid interest
thereon.
(b) Mandatory Repayment of Excess Extensions of Credit.
(i) Aggregate Commitments. If at any time (as determined by
the Administrative Agent under Section 2.4(b)(v)), and for any reason, the
aggregate outstanding principal Dollar Amount of all Revolving Credit Loans
exceeds the Aggregate Commitment less the sum of the Dollar Amount of the L/C
Obligations and the aggregate outstanding principal amount of the Swingline
Loans, the applicable Borrower or Borrowers shall (A) if (and to the extent)
necessary to eliminate such excess, immediately repay outstanding Revolving
Credit Loans that are Base Rate Loans, if any, by the Dollar Amount of such
excess (and/or reduce any pending request for a Base Rate Loan on such day by
the Dollar Amount of such excess), and (B) if (and to the extent) necessary to
eliminate such excess, immediately repay LIBOR Rate Loans (and/or reduce any
pending requests for a borrowing or continuation or conversion of such Loans
submitted in respect of such Loans on such day) by the Dollar Amount of such
excess.
(ii) Excess Swingline Loans. If at any time and for any reason
the aggregate outstanding principal amount of all Swingline Loans exceeds the
lesser of (A) the Aggregate
Commitment less the sum of the aggregate outstanding principal Dollar Amount of
all Revolving Credit Loans and Dollar Amount of the L/C Obligations and (B) the
Swingline Commitment, such excess shall be immediately repaid upon notice from
the Administrative Agent by the Domestic Borrowers to the Administrative Agent
for the account of the Swingline Lender.
(iii) Excess L/C Obligations. If at any time and for any
reason the aggregate outstanding principal Dollar Amount of all L/C Obligations
exceeds the lesser of (A) the Aggregate Commitment less the aggregate
outstanding principal Dollar Amount of all Revolving Credit Loans and Swingline
Loans and (B) the L/C Commitment, the Dollar Amount of such excess shall be
immediately paid upon notice from the Administrative Agent by the applicable
Borrower or Borrowers by means of a payment of cash collateral into a cash
collateral account opened by such Borrower or Borrowers with the Administrative
Agent for the benefit of the Lenders in accordance with Section 12.2(b).
(iv) Sublimits. If at any time (as determined by the
Administrative Agent under Section 2.4(b)(v)), and for any reason, the
Extensions of Credit to any Borrower or Borrowers exceeds the Sublimit
applicable to such Borrower or Borrowers, such Borrower or Borrowers shall (A)
immediately repay Base Rate Loans outstanding to such Borrower or Borrowers
(and/or reduce on such day any pending request for a Base Rate Loan submitted by
such Borrower or Borrowers) by the amount of such excess, (B) immediately repay
LIBOR Rate Loans (and/or reduce any pending requests for a borrowing or
continuation or conversion submitted in respect of such Loans on such day), by
the Dollar Amount of any remaining excess, and (C) if necessary, cash
collateralize any L/C Obligations outstanding to such Borrower or Borrowers in
accordance with paragraph (iii) of this Section 2.4(b).
(v) Compliance and Payments. Each Borrower's compliance with
this Section 2.4(b) shall be tested from time to time by the Administrative
Agent at its sole discretion, but in any event on each day an interest payment
is due under Section 4.1(e). All payments pursuant to this Section 2.4(b) shall
be accompanied by any amount required to be repaid under Section 4.10.
(c) Other Mandatory Prepayments.
(i) Offering Proceeds. If on any such date of receipt the
Leverage Ratio is less than or equal to 3.00 to 1.00, the Net Cash Proceeds
received by any Borrower or Subsidiary from any offering of debt or equity
securities shall be used within three (3) Business Days of receipt thereof to
prepay all Extensions of Credit in the order of priority specified in Section
2.6(d) (and any such repayment shall not result in a reduction to the Aggregate
Commitment).
(ii) Commitment Reductions. The Borrowers shall prepay the
Extensions of Credit in accordance with Section 2.6(d) in connection with any
permanent reduction in the Aggregate Commitment.
(d) Optional Repayments. Any Borrower may at any time and from time to
time repay the Revolving Credit Loans made thereto, in whole or in part, upon at
least three (3) Business Days' irrevocable notice to the Administrative Agent
with respect to LIBOR Rate Loans and one
(1) Business Day irrevocable notice with respect to Base Rate Loans (other than
Swingline Loans) in the form attached hereto as Exhibit C (a "Notice of
Prepayment"), specifying the date and amount of repayment and whether the
repayment is of LIBOR Rate Loans or Base Rate Loans or a combination thereof,
and, if of a combination thereof, the amount allocable to each. Upon receipt of
such notice with respect to any Revolving Credit Loan, the Administrative Agent
shall promptly notify each Lender. If any such notice is given, the amount
specified in such notice shall be due and payable on the date set forth in such
notice. Any applicable Borrower may at any time and from time to time repay the
Swingline Loans made thereto, in whole or in part, upon same Business Day
irrevocable notice to the Administrative Agent (subject to Section 2.2(b)(ii)).
Partial repayments shall be in an aggregate amount of $3,000,000 or a whole
multiple of $1,000,000 in excess thereof with respect to LIBOR Rate Loans (or
with respect to Loans denominated in an Alternative Currency, the Alternative
Currency Amount thereof), a whole multiple of $100,000 with respect to Swingline
Loans and $1,500,000 or a whole multiple of $500,000 in excess thereof with
respect to other Base Rate Loans. Each such repayment shall be accompanied by
any amount required to be paid pursuant to Section 4.10 hereof.
(e) Limitation on Repayment of LIBOR Rate Loans. No Borrower may repay
any LIBOR Rate Loan (including, without limitation, any LIBOR Rate Loan
denominated in an Alternative Currency) hereunder on any day other than on the
last day of the Interest Period applicable thereto unless such repayment is
accompanied by any amount required to be paid pursuant to Section 4.10.
SECTION 2.5. Notes.
(a) Revolving Credit Notes. Each Lender's Revolving Credit Loans and
the obligation of each Borrower to repay the Revolving Credit Loans made thereto
shall be evidenced by the Note executed by such Borrower payable to the order of
such Lender. Each Note shall be dated the date hereof and shall bear interest on
the unpaid principal amount thereof at the applicable interest rate specified in
Section 4.1.
(b) Swingline Note. The Swingline Loans and the obligation of each
Borrower to repay such Swingline Loans shall be evidenced by the Swingline Note
executed by the Domestic Borrowers payable to the order of the Swingline Lender.
The Swingline Note shall be dated the date hereof and shall bear interest on the
unpaid principal amount thereof at the applicable interest rate specified in
Section 4.1.
SECTION 2.6. Permanent Reductions of the Aggregate Commitment.
(a) Voluntary Reduction. The Borrowers shall have the right at any time
and from time to time, upon at least five (5) Business Days prior written notice
to the Administrative Agent, to permanently reduce, in whole at any time or in
part from time to time, without premium or penalty, the Aggregate Commitment in
an aggregate principal amount not less than $2,500,000 or any whole multiple of
$1,000,000 in excess thereof.
(b) Quarterly Reduction. The Aggregate Commitment and the Sublimits,
respectively, shall be permanently reduced according to the following schedule:
Percentage
Date Reduction
Mar. 31, 2000 8.00%
June 30, 2000 8.00%
Sep. 30, 2000 8.00%
Dec. 31, 2000 8.00%
Mar. 31, 2001 8.00%
June 30, 2001 8.00%
Sep. 30, 2001 8.00%
Dec. 31, 2001 8.00%
Mar. 31, 2002 9.00%
June 30, 2002 9.00%
Sep. 30, 2002 9.00%
Dec. 19, 2002 9.00%
(c) Other Permanent Reductions. The Aggregate Commitment shall be
permanently reduced as follows by an amount equal to:
(i) Offering Proceeds. If after prepayment of all Extensions
of Credit with Net Cash Proceeds from any offering by any Borrower or Subsidiary
of debt or equity securities pursuant to Section 2.4(c)(i), the Leverage Ratio
exceeds 3.00 to 1.00, an amount equal to the portion of such proceeds required
to be applied to outstanding Obligations in order to reduce the Leverage Ratio
on such prepayment date to 3.00 to 1.00.
(ii) Sale of Assets. The Net Cash Proceeds received by any
Borrower or Subsidiary in connection with any asset sale described in Section
10.6(e), within three (3) Business Days of receipt thereof; provided, that if
any Authorized Officer of ACC delivers a certificate to the Administrative Agent
prior to such date that such Net Cash Proceeds are to be reinvested by the
Borrower or such Subsidiary in the business thereof within 180 days of such
asset sale and such Net Cash Proceeds are so reinvested, such Net Cash Proceeds
need not be used to permanently reduce the Aggregate Commitment.
(iii) Sale of Interest in Subsidiary. The Net Cash Proceeds
received by any Borrower in connection with the sale of an ownership interest in
any Material Subsidiary, within three (3) Business Days of receipt thereof.
(iv) Insurance Proceeds. Any insurance proceeds received by
any Borrower or Subsidiary in excess of $500,000 in the aggregate, within three
(3) Business Days of receipt thereof; provided, that if any Authorized Officer
of ACC delivers a certificate to the Administrative Agent prior to such date
that insurance proceeds are to be reinvested in
replacement Capital Assets within 180 days of their receipt and such proceeds
are so reinvested, such proceeds need not be used to permanently reduce the
Aggregate Commitment.
(d) Additional Payments. Each permanent reduction permitted or required
pursuant to this Section 2.6 shall be accompanied by a payment of principal (and
with respect to L/C Obligations, furnishing of cash collateral in accordance
with Section 12.2(b)) sufficient to reduce the Extensions of Credit of the
Lenders after such reduction to the Sublimits and Aggregate Commitment as so
reduced. At any time after the Aggregate Commitment has been permanently reduced
pursuant to this Section 2.6 by an aggregate amount in excess of $8,000,000, the
amount of each additional partial permanent reduction under this Section 2.6
shall be applied (i) pro rata to reduce each Sublimit rounded to the nearest
$1,000,000 and (ii) to reduce the remaining mandatory reduction amounts required
under Section 2.6(b) on a pro rata basis. All prepayments required by this
Section 2.6(d) shall be applied first to the aggregate outstanding principal
amount of Swingline Loans, second to the aggregate outstanding principal amount
of Revolving Credit Loans, and third, with respect to any L/C Obligations, by
furnishing cash collateral in accordance with Section 12.2(b). Any permanent
reduction of the Aggregate Commitment to zero shall be accompanied by payment of
all outstanding Obligations and termination of the Commitments and Credit
Facility. If the reduction of the Aggregate Commitment requires the repayment of
any LIBOR Rate Loan, such reduction shall be accompanied by any amount required
to be paid pursuant to Section 4.10.
SECTION 2.7. Termination of Credit Facility. The Credit Facility
(subject to Section 2.2(a) with respect to Swingline Loans) shall terminate on
the earliest of (a) December 19, 2002, (b) the date of termination by the
Borrowers pursuant to Section 2.6(a) and (c) the date of termination by the
Administrative Agent on behalf of the Lenders pursuant to Section 12.2(a).
SECTION 2.8. Use of Proceeds. The Borrowers shall use the proceeds of
the Extensions of Credit (a) to finance investments, acquisitions and Capital
Expenditures permitted by the terms hereof and (b) for working capital and
general corporate requirements of the Borrowers, and including payment of fees
and expenses incurred in connection with the transactions contemplated hereby.
SECTION 2.9. Nature of Obligations; Security. The obligations of the
Domestic Borrowers under the Note or Notes executed thereby and the other
Obligations of such Borrowers (other than the obligations of ACC as Guarantor)
shall be joint and several among such Borrowers. The obligations of the U.K.
Borrowers under the Note or Notes executed thereby and the other Obligations of
such Borrowers hereunder shall be joint and several among such Borrowers, but in
relation to the Domestic Borrowers, the German Borrowers and the Canadian
Borrowers, shall be several and not joint and several; provided, that
notwithstanding the foregoing, the Obligations of United Telecom Ltd. shall not
extend to the Obligations of the other U.K. Borrowers to the extent that such
joint and several liability would cause United Telecom Ltd. to contravene
Section 151 of the Companies Act of 1985. The Obligations of the Canadian
Borrowers in relation to the Domestic Borrowers, the German Borrowers and the
U.K. Borrowers shall be several and not joint and several. The Obligations of
the Canadian Borrowers among themselves shall be joint and several to the
fullest extent permitted by Canadian Law, as set forth in the applicable Joinder
Agreement or Joinder Agreements joining such Canadian Subsidiary or Subsidiaries
to this Agreement as Canadian Borrowers. The Obligations of the German Borrowers
in relation to the Domestic Borrowers, the U.K. Borrowers and the Canadian
Borrowers, shall be several and not joint and several. The Obligations of the
German Borrowers among themselves shall be joint and several to the fullest
extent permitted by German Law, as set forth in the applicable Joinder Agreement
or Joinder Agreements joining such German Subsidiary or Subsidiaries to this
Agreement as German Borrowers. The Obligations of each Borrower shall be secured
in accordance with the terms of the applicable Security Documents.
ARTICLE III
LETTER OF CREDIT FACILITY
SECTION 3.1. L/C Commitment. Subject to the terms and conditions
hereof, the Issuing Lender, in reliance on the agreements of the other Lenders
set forth in Section 3.4(a), agrees to issue letters of credit ("Letters of
Credit") denominated in Dollars for the account of the Domestic Borrowers,
denominated in Canadian Dollars for the account of the Canadian Borrowers,
denominated in Sterling for the account of the U.K. Borrowers, and denominated
in Deutschemarks for the account of the German Borrowers, in each case on any
Business Day from the Closing Date through but not including the Revolving
Credit Termination Date in such form as may be approved from time to time by the
Issuing Lender; provided, that the Issuing Lender shall have no obligation to
issue any Letter of Credit if, after giving effect to such issuance, (a) the
Dollar Amount of the L/C Obligations would exceed the L/C Commitment, (b) the
Available Commitment of any Lender would be less than zero or (c) the aggregate
principal Dollar Amount of Extensions of Credit to the applicable Borrower or
Borrowers would exceed the Sublimit thereof. Each Letter of Credit shall (i) be
denominated in a Permitted Currency in a minimum of $100,000 (other than the
Existing Letters of Credit) or the applicable Alternative Currency Amount
thereof, (ii) be a standby letter of credit issued to support obligations of the
applicable Borrower or Borrowers, contingent or otherwise, incurred in the
ordinary course of business, (iii) expire on a date satisfactory to the Issuing
Lender, which date shall be no later than one year after the date of issuance or
the Revolving Credit Termination Date, whichever is earlier, and (iv) be subject
to the Uniform Customs and, to the extent not inconsistent therewith, the laws
of the State of North Carolina. The Issuing Lender shall not at any time be
obligated to issue any Letter of Credit hereunder if such issuance would
conflict with, or cause the Issuing Lender or any L/C Participant to exceed any
limits imposed by, any Applicable Law. References herein to "issue" and
derivations thereof with respect to Letters of Credit shall also include
extensions or modifications of any existing Letters of Credit, unless the
context otherwise requires. Each Existing Letter of Credit shall be deemed to
continue as a Letter of Credit hereunder.
SECTION 3.2. Procedure for Issuance of Letters of Credit. Any Borrower
or Borrowers may from time to time request that the Issuing Lender issue a
Letter of Credit by delivering to the Issuing Lender at the Administrative
Agent's Office an Application therefor, completed to the satisfaction of the
Issuing Lender, and such other certificates, documents and other papers and
information as the Issuing Lender may request. Upon receipt of any Application,
the Issuing Lender shall process such Application and the certificates,
documents and other papers and information delivered to it in connection
therewith in accordance with its customary procedures and shall, subject to
Section 3.1 and Article V hereof, promptly issue the Letter of Credit requested
thereby (but in no event shall the Issuing Lender be required to issue any
Letter of Credit earlier than three Business Days after its receipt of the
Application therefor and all such other certificates, documents and other papers
and information relating thereto) by issuing the original of such Letter of
Credit to the beneficiary thereof or as otherwise may be agreed by the Issuing
Lender and the applicable Borrower or Borrowers. The Issuing Lender shall
furnish to the applicable Borrower or Borrowers a copy of such Letter of Credit
and furnish to each Lender a copy of such Letter of Credit and the amount of
each Lender's participation therein pursuant to Section 3.4(a), all promptly
following the issuance of such Letter of Credit.
SECTION 3.3. Fees and Other Charges.
(a) The applicable Borrower or Borrowers shall pay to the
Administrative Agent, for the account of the Issuing Lender and the L/C
Participants, a letter of credit fee with respect to each Letter of Credit in an
amount equal to the product of (i) the Applicable Margin with respect to LIBOR
Rate Loans (on a per annum basis) and (ii) an amount equal to the daily average
Dollar Amount available to be drawn under such Letter of Credit during the
period for which such fee is payable. Such fee shall be payable quarterly in
arrears on the last Business Day of each calendar quarter and on the Revolving
Credit Termination Date.
(b) The applicable Borrower or Borrowers shall pay to the
Administrative Agent, for the account of the Issuing Lender, a facing fee with
respect to each Letter of Credit in an amount equal to the product of (i) 0.125%
(on a per annum basis) and (ii) the face amount of such Letter of Credit. Such
fee shall be payable quarterly in arrears on the last Business Day of each
calendar quarter and on the Termination Date.
(c) The applicable Borrower or Borrowers shall pay or reimburse the
Issuing Lender for such normal and customary costs and expenses as are incurred
or charged by the Issuing Lender in issuing, effecting payment under, amending
or otherwise administering any Letter of Credit.
SECTION 3.4. L/C Participations.
(a) The Issuing Lender irrevocably agrees to grant and hereby grants to
each L/C Participant, and, to induce the Issuing Lender to issue Letters of
Credit hereunder, each L/C Participant irrevocably agrees to accept and purchase
and hereby accepts and purchases from the Issuing Lender, on the terms and
conditions hereinafter stated, for such L/C Participant's own account and risk
an undivided interest equal to such L/C Participant's Commitment Percentage in
the Issuing Lender's obligations and rights under each Letter of Credit issued
hereunder and the amount of each draft paid by the Issuing Lender thereunder.
Each L/C Participant unconditionally and irrevocably agrees with the Issuing
Lender that, if a draft is paid under any Letter of Credit for which the Issuing
Lender is not reimbursed in full by the Borrowers in accordance with the terms
of this Agreement, such L/C Participant shall pay to the Issuing Lender upon
demand, with respect
to Letters of Credit denominated in Dollars, and within three (3) Business Days
after demand, with respect to Letters of Credit denominated in Canadian Dollars,
Sterling or Deutschemarks, at the Issuing Lender's address for notices specified
herein an amount equal to such L/C Participant's Commitment Percentage of the
amount of such draft, or any part thereof, which is not so reimbursed and such
payments shall thereafter be reflected as Extensions of Credit of the Lenders on
the books and records of the Administrative Agent.
(b) Upon becoming aware of any amount required to be paid by any L/C
Participant to the Issuing Lender pursuant to Section 3.4(a) in respect of any
unreimbursed portion of any payment made by the Issuing Lender under any Letter
of Credit, the Issuing Lender shall notify each L/C Participant of the Dollar
Amount thereof and due date of such required payment and such L/C Participant
shall pay to the Issuing Lender the Dollar Amount specified on the applicable
due date. If any such amount is paid to the Issuing Lender after the date such
payment is due, such L/C Participant shall pay to the Issuing Lender on demand,
in addition to such amount, the product of (i) such amount, times (ii) the daily
average Federal Funds Rate as determined by the Administrative Agent during the
period from and including the date such payment is due to the date on which such
payment is immediately available to the Issuing Lender, times (iii) a fraction
the numerator of which is the number of days that elapse during such period and
the denominator of which is 360. A certificate of the Issuing Lender with
respect to any amounts owing under this Section shall be conclusive in the
absence of manifest error. With respect to payment to the Issuing Lender of the
unreimbursed amounts described in this Section 3.4(b), if the L/C Participants
receive notice that any such payment is due (A) prior to 1:00 p.m. (Charlotte
time) on any Business Day, such payment shall be due that Business Day, and (B)
after 1:00 p.m. (Charlotte time) on any Business Day, such payment shall be due
on the following Business Day.
(c) Whenever, at any time after the Issuing Lender has made payment
under any Letter of Credit and has received from any L/C Participant its
Commitment Percentage of such payment in accordance with this Section 3.4, the
Issuing Lender receives any payment related to such Letter of Credit (whether
directly from the Borrowers or otherwise), or any payment of interest on account
thereof, the Issuing Lender will distribute to such L/C Participant its pro rata
share thereof; provided, that in the event that any such payment received by the
Issuing Lender shall be required to be returned by the Issuing Lender, such L/C
Participant shall return to the Issuing Lender the portion thereof previously
distributed by the Issuing Lender to it.
SECTION 3.5. Reimbursement Obligation of the Borrower. The applicable
Borrower or Borrowers agree to reimburse the Issuing Lender on each date on
which the Issuing Lender notifies such Borrower or Borrowers of the date and
amount of a draft paid under any Letter of Credit for the amount of (a) such
draft so paid and (b) any taxes, fees, charges or other costs or expenses
incurred by the Issuing Lender in connection with such payment. Each such
payment shall be made to the Issuing Lender at its address for notices specified
herein in the applicable Permitted Currency and in immediately available funds.
Interest shall be payable on any and all amounts remaining unpaid by the
Borrowers under this Article III from the date such amounts become payable
(whether at stated maturity, by acceleration or otherwise) until payment in full
at the rate which would be payable on any outstanding Base Rate Loans which were
then overdue. If the Borrowers fail to timely reimburse the Issuing Lender on
the date the Borrowers receive the
notice referred to in this Section 3.5, the Borrowers shall be deemed to have
timely given a Notice of Borrowing hereunder to the Administrative Agent
requesting the Lenders to make a Base Rate Loan on such date in an amount equal
to the amount of such drawing and, subject to the satisfaction or waiver of the
conditions precedent specified in Article V, the Lenders shall make Base Rate
Loans in such amount, the proceeds of which shall be applied to reimburse the
Issuing Lender for the amount of the related drawing and costs and expenses.
SECTION 3.6. Obligations Absolute. The Borrowers' obligations under
this Article III (including without limitation the Reimbursement Obligation)
shall be absolute and unconditional under any and all circumstances and
irrespective of any set-off, counterclaim or defense to payment which the
Borrowers may have or have had against the Issuing Lender, any L/C Participant,
any Agent or any beneficiary of a Letter of Credit. The Borrowers also agree
with the Issuing Lender and each L/C Participant that neither the Issuing Lender
nor any L/C Participant shall be responsible for, and the Borrowers'
Reimbursement Obligation under Section 3.5 shall not be affected by, among other
things, the validity or genuineness of documents or of any endorsements thereon,
even though such documents shall in fact prove to be invalid, fraudulent or
forged, or any dispute between or among the Borrowers and any beneficiary of any
Letter of Credit or any other party to which such Letter of Credit may be
transferred or any claims whatsoever of the Borrowers against any beneficiary of
such Letter of Credit or any such transferee. The Issuing Lender shall not be
liable for any error, omission, interruption or delay in transmission, dispatch
or delivery of any message or advice, however transmitted, in connection with
any Letter of Credit, except for errors or omissions caused by the Issuing
Lender's gross negligence or willful misconduct. The Borrowers agree that any
action taken or omitted by the Issuing Lender or any L/C Participant under or in
connection with any Letter of Credit or the related drafts or documents, if done
in the absence of gross negligence or willful misconduct and in accordance with
the standards of care specified in the Uniform Customs and, to the extent not
inconsistent therewith, the UCC, shall be binding on the Borrowers and shall not
result in any liability of the Issuing Lender or any L/C Participant to the
Borrowers. The responsibility of the Issuing Lender to the Borrowers in
connection with any draft presented for payment under any Letter of Credit
shall, in addition to any payment obligation expressly provided for in such
Letter of Credit, be limited to determining that the documents (including each
draft) delivered under such Letter of Credit in connection with such presentment
are in conformity with such Letter of Credit.
SECTION 3.7. Effect of Application. To the extent that any provision of
any Application related to any Letter of Credit is inconsistent with the
provisions of this Article III, the provisions of this Article III shall apply.
ARTICLE IV
GENERAL LOAN PROVISIONS
SECTION 4.1. Interest.
(a) Interest Rate Options. Subject to the provisions of this Section
4.1, at the election of the applicable Borrower or Borrowers, Revolving Credit
Loans denominated in Dollars shall bear interest at a rate equal to the Base
Rate or the LIBOR Rate plus, in each case, the Applicable Margin as set forth
below and Revolving Credit Loans denominated in an Alternative Currency shall
bear interest at a rate equal to the LIBOR Rate plus the Applicable Margin as
set forth below; provided that, in accordance with Section 4.9, Loans
denominated in Canadian Dollars shall bear interest at the Canadian Base Rate,
Loans denominated in Sterling shall bear interest at the Sterling Base Rate and
Loans denominated in Deutschemarks shall bear interest at the German Base Rate.
However, the LIBOR Rate with respect to Loans denominated in Dollars shall not
be available until three (3) Business Days after the Closing Date. Any Swingline
Loan shall bear interest at the Base Rate plus the Applicable Margin as set
forth below. The applicable Borrower or Borrowers shall select the rate of
interest and Interest Period, if any, applicable to any Revolving Credit Loan at
the time a Notice of Borrowing is given pursuant to Section 2.3 or at the time a
Notice of Conversion/Continuation is given pursuant to Section 4.2. Each Loan or
portion thereof bearing interest based on the Base Rate shall be a "Base Rate
Loan", and each Loan or portion thereof bearing interest based on the LIBOR Rate
shall be a "LIBOR Rate Loan". Any Loan or any portion thereof to be denominated
in Dollars as to which the applicable Borrower or Borrowers have not duly
specified an interest rate as provided herein shall be deemed a Base Rate Loan.
(b) Interest Periods. In connection with each LIBOR Rate Loan, the
applicable Borrower or Borrowers, by giving notice at the times described in
Section 4.1(a), shall elect an interest period (each, an "Interest Period") to
be applicable to such Loan, which Interest Period shall be a period of one, two,
three, or six months; provided that:
(i) the Interest Period shall commence on the date of advance
of or conversion to any LIBOR Rate Loan and, in the case of immediately
successive Interest Periods, each successive Interest Period shall commence on
the date on which the next preceding Interest Period expires;
(ii) if any Interest Period would otherwise expire on a day
that is not a Business Day, such Interest Period shall expire on the next
succeeding Business Day; provided, that if any Interest Period would otherwise
expire on a day that is not a Business Day but is a day of the month after which
no further Business Day occurs in such month, such Interest Period shall expire
on the next preceding Business Day;
(iii) any Interest Period that begins on the last Business Day
of a calendar month (or on a day for which there is no numerically corresponding
day in the calendar month at
the end of such Interest Period) shall end on the last Business Day of the
calendar month at the end of such Interest Period;
(iv) no Interest Period shall extend beyond the Revolving
Credit Termination Date and no Interest Period shall be selected by any Borrower
which, in connection with mandatory reductions of the Aggregate Commitment
pursuant to Section 2.6, would cause the early termination of such Interest
Period; and
(v) with respect to Revolving Credit Loans denominated in
Dollars, there shall be no more than seven (7) Interest Periods outstanding at
any time and with respect to Revolving Credit Loans denominated in an
Alternative Currency, there shall be no more than three (3) Interest Periods for
each such Alternative Currency.
(c) Applicable Margin. The Applicable Margin provided for in Section
4.1(a) with respect to the Loans (the "Applicable Margin") shall (i) on the
Closing Date equal the percentages set forth in the certificate delivered
pursuant to Section 5.2(e)(ii) and (ii) for each fiscal quarter thereafter be
determined by reference to the Leverage Ratio as of the end of the fiscal
quarter immediately preceding the delivery of the applicable Officer's
Compliance Certificate as follows:
Applicable Margin
Leverage Ratio Base Rate + LIBOR Rate +
Greater than 3.0 0.25% 1.75%
to 1.0.
Greater than 2.5 to 1.0 -0- 1.50%
but less than or equal to
3.0 to 1.0.
Greater than 2.0 to 1.0 but -0- 1.25%
less than or equal to 2.5 to 1.0
Less than or equal to -0- 1.00%
2.0 to 1.0
Adjustments, if any, in the Applicable Margin shall be made by the
Administrative Agent on the tenth (10th) Business Day after receipt by the
Administrative Agent of quarterly financial statements for ACC and its
Subsidiaries and the accompanying Officer's Compliance Certificate setting forth
the Leverage Ratio of ACC and its Subsidiaries as of the most recent fiscal
quarter end. Subject to Section 4.1(d), in the event the Borrowers fail to
deliver such financial statements and certificate within the time required by
Section 7.2(c) hereof, the Applicable Margin shall be the highest Applicable
Margin set forth above until ten (10) Business Days after receipt of such
financial statements and certificate by the Administrative Agent.
(d) Default Rate. Upon the occurrence and during the continuance of an
Event of Default, (i) the Borrowers shall no longer have the option to request
LIBOR Rate Loans or Loans in an Alternative Currency and at the end of the
applicable Interest Period all outstanding Loans denominated in an Alternative
Currency shall be repaid in full and all Loans denominated in Dollars shall
convert to Base Rate Loans, (ii) at the option of the Managing Agents, all
outstanding LIBOR Rate Loans shall bear interest at a rate per annum two percent
(2%) in excess of the rate then applicable to LIBOR Rate Loans until the end of
the applicable Interest Period, and thereafter shall bear interest at a rate
equal to two percent (2%) in excess of the rate then applicable to Base Rate
Loans and (iii) at the option of the Managing Agents, all outstanding Base Rate
Loans shall bear interest at a rate per annum equal to two percent (2%) in
excess of the rate then applicable to Base Rate Loans. Interest shall continue
to accrue on the Notes after the filing by or against any Borrower of any
petition seeking any relief in bankruptcy or under any act or law pertaining to
insolvency or debtor relief, whether state, federal or foreign.
(e) Interest Payment and Computation. Interest on each Base Rate Loan
shall be payable in arrears on the last Business Day of each calendar quarter
commencing December 31, 1997 and interest on each LIBOR Rate Loan shall be
payable on the last day of each Interest Period applicable thereto, and if such
Interest Period extends over three (3) months, at the end of each three month
interval during such Interest Period. All interest rates, fees and commissions
provided hereunder shall be computed on the basis of a 365/366-day year, except
that (i) interest with respect to each LIBOR Rate Loan denominated in Dollars,
Canadian Dollars or Deutschemarks shall be computed on the basis of a 360-day
year and assessed for the actual number of days elapsed, (ii) interest with
respect to each LIBOR Rate Loan denominated in Sterling shall be computed on the
basis of a 365-day year and assessed for the actual number of days elapsed and
(iii) interest with respect to Canadian Base Rate Loans shall be computed on the
basis of a 365-day year.
(f) Maximum Rate. In no contingency or event whatsoever shall the
aggregate of all amounts deemed interest hereunder or under any of the Notes
charged or collected pursuant to the terms of this Agreement or pursuant to any
of the Notes exceed the highest rate permissible under any Applicable Law which
a court of competent jurisdiction shall, in a final determination, deem
applicable hereto. In the event that such a court determines that the Lenders
have charged or received interest hereunder in excess of the highest applicable
rate, the rate in effect hereunder shall automatically be reduced to the maximum
rate permitted by Applicable Law and the Lenders shall at the Administrative
Agent's option promptly refund to the applicable Borrower or Borrowers any
interest received by Lenders in excess of the maximum lawful rate or shall apply
such excess to the principal balance of the Obligations. It is the intent hereof
that the Borrowers not pay or contract to pay, and that no Agent or any Lender
receive or contract to receive, directly or indirectly in any manner whatsoever,
interest in excess of that which may be paid by the Borrowers under Applicable
Law.
SECTION 4.2. Notice and Manner of Conversion or Continuation of
Revolving Credit Loans. Provided that no Default or Event of Default has
occurred and is then continuing, the Borrowers shall have the option to (a)
convert at any time all or any portion of its outstanding Base Rate Loans that
are Revolving Credit Loans in a principal amount equal to $3,000,000 or any
whole multiple of $1,000,000 in excess thereof into one or more LIBOR Rate Loans
denominated in Dollars, (b) upon the expiration of any Interest Period, convert
all or any part of its outstanding LIBOR Rate Loans denominated in Dollars in a
principal amount equal to $1,500,000 or a whole multiple of $500,000 in excess
thereof into Base Rate Loans that are Revolving Credit Loans or (c) upon the
expiration of any Interest Period, continue any LIBOR Rate Loan in a principal
amount of $3,000,000 or any whole multiple of $1,000,000 in excess thereof (or
with respect to LIBOR Rate Loans denominated in an Alternative Currency, the
Alternative Currency Amount in each case thereof) as a LIBOR Rate Loan
denominated in the same Permitted Currency. Whenever the Borrowers desire to
convert or continue Loans as provided above, the applicable Borrower or
Borrowers shall give the Administrative Agent irrevocable prior written notice
in the form attached as Exhibit D (a "Notice of Conversion/Continuation") not
later than 11:00 a.m. (Charlotte time) three (3) Business Days before the day on
which a proposed conversion or continuation of such Loan is to be effective
specifying (i) the Loans to be converted or continued, and, in the case of a
LIBOR Rate Loan to be converted or continued, the Permitted Currency in which
such Loan is denominated and the last day of the Interest Period therefor, (ii)
the effective date of such conversion or continuation (which shall be a Business
Day), (iii) the principal amount of such Loans to be converted or continued and
(iv) the Interest Period to be applicable to such converted or continued LIBOR
Rate Loan. The Administrative Agent shall promptly notify the Lenders of such
Notice of Conversion/Continuation. If the Canadian Borrowers, U.K. Borrowers or
German Borrowers fail to notify the Administrative Agent as provided in this
Section 4.2 of the continuation of any LIBOR Rate Loan denominated in the
corresponding Alternative Currency at the end of the Interest Period of such
LIBOR Rate Loan, such Loan upon the expiration of the applicable Interest Period
shall be continued as a LIBOR Rate Loan, denominated in the corresponding
Alternative Currency, with a one month Interest Period.
SECTION 4.3.Fees.
(a) Commitment Fee. The Borrowers shall pay to the Administrative
Agent, for the account of the Lenders, a non-refundable commitment fee on the
average daily amount of the Aggregate Commitment less the aggregate outstanding
principal Dollar Amount of all Revolving Credit Loans (and, with respect to
First Union, all Swingline Loans) and the aggregate outstanding Dollar Amount of
all L/C Obligations at a rate per annum determined by reference to the Leverage
Ratio as of the end of the fiscal quarter immediately preceding the delivery of
the applicable Officer's Compliance Certificate as follows:
Leverage Ratio Commitment Fee
Greater than 2.00 to 1.00 0.375%
Less than or equal to
2.00 to 1.0 0.250%
The commitment fee shall be payable in arrears on the last Business Day of each
calendar quarter during the term of this Agreement commencing December 31, 1997
and on the Revolving Credit
Termination Date. Such commitment fee shall be distributed promptly by the
Administrative Agent to each Lender pro rata according to the aggregate
principal Dollar Amount of Extensions of Credit held by such Lender.
(b) Administrative Agent's Fees. In order to compensate the
Administrative Agent for its obligations hereunder, the Borrowers agree to pay
to the Administrative Agent for its own account the administrative fee set forth
in the fee letter executed by ACC dated November 5, 1997, which fee shall be
payable in advance on the Closing Date and on each anniversary of such date.
SECTION 4.4. Manner of Payment.
(a) Loans Denominated in Dollars. Each payment (including repayments
described in Article II) by any Borrower on account of the principal of or
interest on the Loans denominated in Dollars or of any fee, commission or other
amounts (including the Reimbursement Obligation) payable to the Lenders under
this Agreement or any Note (except as set forth in Section 4.4(b)) shall be made
in Dollars not later than 1:00 p.m. (Charlotte time) on the date specified for
payment under this Agreement to the Administrative Agent for the account of the
Lenders in accordance with Section 4.4(c) at the Administrative Agent's Office,
in immediately available funds, and shall be made without any set-off,
counterclaim or deduction whatsoever. Any payment received after such time but
before 2:00 p.m. (Charlotte time) on such day shall be deemed a payment on such
date for the purposes of Section 12.1, but for all other purposes shall be
deemed to have been made on the next succeeding Business Day. Any payment
received after 2:00 p.m. (Charlotte time) shall be deemed to have been made on
the next succeeding Business Day for all purposes.
(b) Loans Denominated in Alternative Currencies. Each payment
(including repayments described in Article II) by any Borrower on account of the
principal of or interest on the Loans denominated in any Alternative Currency
shall be made in such Alternative Currency not later than 11:00 a.m. (the time
of the Administrative Agent's Correspondent) on the date specified for payment
under this Agreement to the Administrative Agent's account with the
Administrative Agent's Correspondent for the account of the Lenders in
accordance with Section 4.4(c) in immediately available funds, and shall be made
without any set-off, counterclaim or deduction whatsoever. Any payment received
after such time but before 12:00 noon (the time of the Administrative Agent's
Correspondent) on such day shall be deemed a payment on such date for the
purposes of Section 12.1, but for all other purposes shall be deemed to have
been made on the next succeeding Business Day. Any payment received after 12:00
noon (the time of the Administrative Agent's Correspondent) shall be deemed to
have been made on the next succeeding Business Day for all purposes.
(c) Pro Rata Treatment. Upon receipt by the Administrative Agent of
each such payment, the Administrative Agent shall distribute to each Lender at
its address for notices set forth herein its pro rata share of such payment in
accordance with such Lender's Commitment Percentage and shall wire advice of the
amount of such credit to each Lender. Each payment to the Administrative Agent
of the Swingline Lender's or the Issuing Lender's or L/C Participants' fees or
commissions shall be made in like manner, but for the account of the Swingline
Lender, the Issuing Lender or the L/C Participants, as the case may be. Each
payment to any Agent of such
Agent's fees or expenses shall be made for the account of such Agent and any
amount payable to any Lender under Section 2.4(b) and Sections 4.8 through 4.11
and 14.2 and 14.13 shall be paid to the Administrative Agent for the account of
the applicable Lender. Subject to Section 4.1(b)(ii), if any payment under this
Agreement or any Note shall be specified to be made upon a day which is not a
Business Day, it shall be made on the next succeeding day which is a Business
Day and such extension of time shall in such case be included in computing any
interest if payable along with such payment.
SECTION 4.5. Crediting of Payments and Proceeds. Unless otherwise
provided in the Security Agreement, in the event that any Borrower shall fail to
pay any of the Obligations when due and the Obligations have been accelerated
pursuant to Section 12.2, all payments received by the Lenders upon the Notes
and the other Obligations and all net proceeds from the enforcement of the
Obligations shall be applied first to all Administrative Agent's fees and
expenses then due and payable by the Borrowers hereunder, then to all other
expenses then due and payable by the Borrowers hereunder, then to all indemnity
obligations then due and payable by the Borrowers hereunder, then to all
commitment and other fees and commissions then due and payable, then to accrued
and unpaid interest on the Swingline Note to the Swingline Lender, then to the
principal amount outstanding under the Swingline Note to the Swingline Lender,
then to accrued and unpaid interest on the Revolving Credit Notes, the
Reimbursement Obligation and any termination payments due in respect of a
Hedging Agreement with any Lender permitted pursuant to Section 10.13 (pro rata
in accordance with all such amounts due), then to the aggregate outstanding
principal amount of the Revolving Credit Notes and Reimbursement Obligation and
then to the cash collateral account described in Section 12.2(b) hereof to the
extent of any L/C Obligations then outstanding, in that order.
SECTION 4.6. Nature of Obligations of Lenders Regarding Extensions of
Credit; Assumption by Administrative Agent. The obligations of the Lenders under
this Agreement to make the Loans and issue or participate in Letters of Credit
are several and are not joint or joint and several. Unless the Administrative
Agent shall have received notice from a Lender prior to a proposed borrowing
date that such Lender will not make available to the Administrative Agent such
Lender's ratable portion of the amount to be borrowed on such date (which notice
shall not release such Lender of its obligations hereunder), the Administrative
Agent may assume that such Lender has made such portion available to the
Administrative Agent on the proposed borrowing date in accordance with Section
3.2 and the Administrative Agent may, in reliance upon such assumption, make
available to the applicable Borrower or Borrowers on such date a corresponding
amount. If such amount is made available to the Administrative Agent on a date
after such borrowing date, such Lender shall pay to the Administrative Agent on
demand an amount, until paid, equal to (a) with respect to a Loan denominated in
Dollars the amount of such Lender's Commitment Percentage of such borrowing and
interest thereon at a rate equal to the daily average Federal Funds Rate during
such period as determined by the Administrative Agent and (b) with respect to a
Loan denominated in an Alternative Currency, such Lender's Commitment Percentage
of such borrowing at a rate per annum equal to the Administrative Agent's
aggregate marginal cost (including the cost of maintaining any required reserves
or deposit insurance and of any fees, penalties, overdraft charges or other
costs or expenses incurred by the Administrative Agent as a result of the
failure to deliver funds hereunder) of
carrying such amount. A certificate of the Administrative Agent with respect to
any amounts owing under this Section shall be conclusive, absent manifest error.
If such Lender's Commitment Percentage of such borrowing is not made available
to the Administrative Agent by such Lender within three (3) Business Days of
such borrowing date, the Administrative Agent shall be entitled to recover such
amount made available by the Administrative Agent with interest thereon at the
rate then applicable to such Loan hereunder, on demand, from the applicable
Borrower or Borrowers. The failure of any Lender to make its Commitment
Percentage of any Loan available shall not relieve it or any other Lender of its
obligation, if any, hereunder to make its Commitment Percentage of such Loan
available on such borrowing date, but no Lender shall be responsible for the
failure of any other Lender to make its Commitment Percentage of such Loan
available on the borrowing date.
SECTION 4.7. Mandatory Redenomination of Alternative Currency Loans. If
any Alternative Currency becomes unavailable to any Lender for any reason
(including, without limitation, any conversion, discontinuation or replacement
of such currency arising out of or in connection with any event associated with
economic and monetary union in the European Community), and in each case at the
option of the Administrative Agent in its sole discretion, all outstanding Loans
in such Alternative Currency shall be redenominated and converted into Dollars
in an amount equal to the Dollar Amount of such Loan, and the Lenders shall no
longer be obligated to provide Loans in the affected Alternative Currency or
Currencies, all subject to the provisions of Sections 2.4(b) and 4.10.
SECTION 4.8. Regulatory Limitation. In the event, as a result of
increases in the value of Alternative Currencies against the Dollar or for any
other reason, the obligation of any of the Lenders to make Loans or issue or
participate in Letters of Credit (taking into account the Dollar Amount of the
Obligations and all other indebtedness required to be aggregated under 12
U.S.C.A. 84, as amended, the regulations promulgated thereunder and any other
Applicable Law) is determined by such Lender to exceed its then applicable legal
lending limit under 12 U.S.C.A. 84, as amended, and the regulations promulgated
thereunder, or any other Applicable Law, the amount of additional Extensions of
Credit such Lender shall be obligated to make or issue or participate in
hereunder shall immediately be reduced to the maximum amount which such Lender
may legally advance (as determined by such Lender), the obligation of each of
the remaining Lenders hereunder shall be proportionately reduced, based on their
applicable Commitment Percentages, and, to the extent necessary under such laws
and regulations (as determined by each of the Lenders, with respect to the
applicability of such laws and regulations to itself), the Borrowers shall
reduce, or cause to be reduced, complying to the extent practicable with the
remaining provisions hereof, the Obligations outstanding hereunder by an amount
sufficient to comply with such maximum amounts.
SECTION 4.9. Changed Circumstances.
(a) Circumstances Affecting LIBOR Rate Availability. If with respect to
any Interest Period the Administrative Agent or any Lender (after consultation
with the Administrative Agent) shall determine that (i) by reason of
circumstances affecting the foreign exchange and interbank markets generally,
deposits in eurodollars or an Alternative Currency in the applicable amounts are
not being quoted via Telerate Page 3750 or offered to the Administrative Agent
or such Lender for such Interest Period or (ii) a fundamental change has
occurred in the foreign exchange or interbank markets with respect to any
Alternative Currency (including, without limitation, changes in national or
international financial, political or economic conditions or currency exchange
rates or exchange controls), then the Administrative Agent shall forthwith give
notice thereof to the Borrowers. Thereafter, until the Administrative Agent
notifies the Borrowers that such circumstances no longer exist, the obligation
of the Lenders to make LIBOR Rate Loans, and the right of the Borrowers to
convert any Loan to or continue any Loan as a LIBOR Rate Loan, shall be
suspended, and the applicable Borrower or Borrowers shall repay in full (or
cause to be repaid in full) the then outstanding principal amount of each such
LIBOR Rate Loan, together with accrued interest thereon, on the last day of the
then current Interest Period applicable to such LIBOR Rate Loan or convert the
then outstanding principal amount of each such LIBOR Rate Loan denominated in
Dollars to a Base Rate Loan, each such LIBOR Rate Loan denominated in Sterling
to a Sterling Base Rate Loan, and each such LIBOR Rate Loan denominated in
Canadian Dollars to a Canadian Base Rate Loan, and each such LIBOR Rate Loan
denominated in Deutschemarks to a German Base Rate Loan, as of the last day of
such Interest Period.
(b) Laws Affecting LIBOR Rate Availability. If, after the date hereof,
the introduction of, or any change in, any Applicable Law or any change in the
interpretation or administration thereof by any Governmental Authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by any Lender (or any of their respective Lending
Offices) with any request or directive (whether or not having the force of law)
of any such Authority, central bank or comparable agency, shall make it unlawful
or impossible for any of the Lenders (or any of their respective Lending
Offices) to honor its obligations hereunder to make or maintain any LIBOR Rate
Loan, such Lender shall promptly give notice thereof to the Administrative Agent
and the Administrative Agent shall promptly give notice to the Borrowers and the
other Lenders. Thereafter, until the Administrative Agent notifies the Borrowers
that such circumstances no longer exist (which notification shall be given as
soon as practicable, but in any event not later than thirty (30) days after the
Administrative Agent obtains actual knowledge that such circumstances no longer
exist), (i) the obligations of the Lenders to make LIBOR Rate Loans and the
right of the Borrowers to convert any Loan or continue any Loan as a LIBOR Rate
Loan shall be suspended and thereafter the Borrowers may select only Base Rate
Loans, Sterling Base Rate Loans, Canadian Base Rate Loans, or German Base Rate
Loans hereunder, as applicable, and (ii) if any of the Lenders may not lawfully
continue to maintain a LIBOR Rate Loan to the end of the then current Interest
Period applicable thereto as a LIBOR Rate Loan, the applicable LIBOR Rate Loan
shall immediately be converted to a Base Rate Loan, Sterling Base Rate Loan,
Canadian Base Rate Loan or German Base Rate Loan, as applicable, for the
remainder of such Interest Period.
(c) Increased Costs. If, after the date hereof, the introduction of, or
any change in, any Applicable Law, or in the interpretation or administration
thereof by any Governmental Authority, central bank or comparable agency charged
with the interpretation or administration thereof, or compliance by any of the
Lenders (or any of their respective Lending Offices) with any request or
directive (whether or not having the force of law) of such Authority, central
bank or comparable agency:
(i) shall subject any of the Lenders (or any of their
respective Lending Offices) to any tax, duty or other charge with respect to any
LIBOR Rate Loan or any Note, Letter of Credit or Application or shall change the
basis of taxation of payments to any of the Lenders (or any of their respective
Lending Offices) of the principal of or interest on any LIBOR Rate Loan or any
Note, Letter of Credit or Application or any other amounts due under this
Agreement in respect thereof (except for changes in the rate of tax on the
overall net income of any of the Lenders or any of their respective Lending
Offices imposed by the jurisdiction in which such Lender is organized or is or
should be qualified to do business or such Lending Office is located); or
(ii) shall impose, modify or deem applicable any reserve
(including, without limitation, any imposed by the Board of Governors of the
Federal Reserve System), special deposit, insurance or capital or similar
requirement against assets of, deposits with or for the account of, or credit
extended by any of the Lenders (or any of their respective Lending Offices) or
shall impose on any of the Lenders (or any of their respective Lending Offices)
or the foreign exchange and interbank markets any other condition affecting any
LIBOR Rate Loan or any Note;
and the result of any of the foregoing is to increase the costs to any of the
Lenders of maintaining any LIBOR Rate Loan or issuing or participating in
Letters of Credit or to reduce the yield or amount of any sum received or
receivable by any of the Lenders under this Agreement or under the Notes in
respect of a LIBOR Rate Loan or Letter of Credit or Application, then such
Lender shall promptly notify the Administrative Agent, and the Administrative
Agent shall promptly notify the Borrowers of such fact and demand compensation
therefor and, within fifteen (15) days after such notice by the Administrative
Agent, the applicable Borrower or Borrowers shall pay to such Lender such
additional amount or amounts as will compensate such Lender or Lenders for such
increased cost or reduction. The Administrative Agent will promptly notify the
Borrowers of any event of which it has knowledge which will entitle such Lender
to compensation pursuant to this Section 4.9(c); provided, that the
Administrative Agent shall incur no liability whatsoever to the Lenders or the
Borrowers in the event it fails to do so. A certificate of the Administrative
Agent setting forth the basis for determining such additional amount or amounts
necessary to compensate such Lender or Lenders shall be conclusively presumed to
be correct save for manifest error.
(d) Conversion to Common Currency. Notwithstanding paragraphs (a)
through (c) of this Section 4.9, if it becomes impossible or impractical for the
Lenders to honor their obligation to make LIBOR Rate Loans due to any
conversion, discontinuation or replacement of any Alternative Currency arising
out of or in connection with any event associated with economic and monetary
union in the European Community and resulting in redenomination of all Loans
denominated in such Alternative Currency to Dollars pursuant to Section 4.7, and
at the option of the Administrative Agent in its sole discretion, the obligation
of the Lenders to make LIBOR Rate Loans shall be terminated and all outstanding
LIBOR Rate Loans shall be converted to Base Rate Loans, subject to the
provisions of Section 4.10.
SECTION 4.10. Indemnity. The applicable Borrower or Borrowers hereby
indemnify each of the Lenders against any loss or expense (including without
limitation any foreign exchange costs) which may arise or be attributable to
each Lender's obtaining, liquidating or employing deposits or other funds
acquired to effect, fund or maintain the Loans (a) as a consequence of any
failure by any such Borrower or Borrowers to make any payment when due of any
amount due hereunder in connection with a LIBOR Rate Loan, (b) due to any
failure of any such Borrower or Borrowers to borrow on a date specified therefor
in a Notice of Borrowing or Notice of Continuation/Conversion with respect to
any LIBOR Rate Loan or (c) due to any payment, prepayment or conversion of any
LIBOR Rate Loan on a date other than the last day of the Interest Period
therefor. Each Lender's calculations of any such loss or expense shall be
furnished to the Borrowers and shall be conclusive, absent manifest error.
SECTION 4.11. Capital Requirements. If either (a) the introduction of,
or any change in, or in the interpretation of, any Applicable Law or (b)
compliance with any guideline or request from any central bank or comparable
agency or other Governmental Authority (whether or not having the force of law),
has or would have the effect of reducing the rate of return on the capital of,
or has affected or would affect the amount of capital required to be maintained
by, any Lender or any corporation controlling such Lender as a consequence of,
or with reference to the Commitments and other commitments of this type, below
the rate which the Lender or such other corporation could have achieved but for
such introduction, change or compliance, then within five (5) Business Days
after written demand by any such Lender, the Borrowers shall pay to such Lender
from time to time as specified by such Lender additional amounts sufficient to
compensate such Lender or other corporation for such reduction. A certificate as
to such amounts submitted to the Borrowers and the Administrative Agent by such
Lender, shall, in the absence of manifest error, be presumed to be correct and
binding for all purposes.
SECTION 4.12. Taxes.
(a) Payments Free and Clear. Any and all payments by the Borrowers
hereunder or under the Notes or the Letters of Credit shall be made free and
clear of and without deduction for any and all present or future taxes, levies,
imposts, deductions, charges or withholding, and all liabilities with respect
thereto (including, without limitation, all claims, penalties, costs and
expenses resulting from any failure to withhold or pay, or any delay in
withholding or paying, any of the foregoing amounts) excluding, (i) in the case
of each Lender and each Agent, income and franchise taxes imposed by the
jurisdiction under the laws of which such Lender or Agent (as the case may be)
is organized or is or should be qualified to do business or any political
subdivision of such jurisdiction or country which includes such jurisdiction (it
being expressly acknowledged by the Borrowers that each Agent and each Lender
are not qualified, nor should they be qualified, for purposes of this Section
4.12(a) or for any other Section of this Agreement, to do business in Canada or
any political subdivision thereof) and (ii) in the case of each Lender, income
and franchise taxes imposed by the jurisdiction of such Lender's Lending Office
or any political subdivision of such jurisdiction or country which includes such
jurisdiction (all such non-excluded taxes, levies, imposts, deductions, charges,
withholdings and liabilities being hereinafter referred to as "Taxes"). If any
Borrower shall be required by law to deduct or withhold any Taxes from or in
respect of any sum payable hereunder or under any Note or Letter of Credit to
any Lender or
any Agent, (A) the sum payable shall be increased as may be necessary so that
after making all required deductions or withholdings (including deductions or
withholdings applicable to additional sums payable under this Section 4.12) such
Lender or Agent (as the case may be) receives an amount equal to the amount such
party would have received had no such deductions or withholdings been made, (B)
such Borrower shall make such deductions or withholdings , (C) such Borrower
shall pay the full amount deducted or withheld to the relevant taxing authority
or other authority in accordance with applicable law, and (D) such Borrower
shall deliver to the Administrative Agent evidence of such payment to the
relevant taxing authority or other authority in the manner provided in Section
4.12(d). If, for any reason, any Borrower or Borrowers do not pay or remit such
Taxes or do not for any reason pay any additional sums payable to any Lender or
any Agent under this Section 4.12, the interest payable by such Borrower or
Borrowers under this Agreement will be increased to the rate or rates necessary
to yield and remit to such Lender or Agent the principal sum advanced together
with interest at the applicable rate or rates specified in this Agreement after
provision for payment of such Taxes. The Borrowers shall, from time to time,
execute and deliver any and all further documents as may be necessary or
advisable to give full force and effect to such increase in the rate or rates of
interest.
(b) Stamp and Other Taxes. In addition, the Borrowers shall pay any
present or future stamp, registration, recordation or documentary taxes or any
other similar fees or charges or excise or property taxes, levies of the United
States or any state or political subdivision thereof or any applicable foreign
jurisdiction which arise from any payment made hereunder or from the execution,
delivery or registration of, or otherwise with respect to, this Agreement, the
Loans, the Letters of Credit, the other Loan Documents, or the perfection of any
rights or security interest in respect thereto (hereinafter referred to as
"Other Taxes").
(c) Indemnity. The Borrowers shall indemnify each Lender and each Agent
for the full amount of Taxes and Other Taxes (including, without limitation, any
Taxes and Other Taxes imposed by any jurisdiction on amounts payable under this
Section 4.12) paid by such Lender or Agent (as the case may be) and any
liability (including penalties, interest and expenses) arising therefrom or with
respect thereto, whether or not such Taxes or Other Taxes were correctly or
legally asserted. Such indemnification shall be made within thirty (30) days
from the date such Lender or Agent (as the case may be) makes written demand
therefor.
(d) Evidence of Payment. Within thirty (30) days after the date of any
payment of Taxes or Other Taxes, the affected Borrower shall furnish to the
Administrative Agent, at its address referred to in Section 14.1, the original
or a certified copy of a receipt evidencing payment thereof or other evidence of
payment satisfactory to the Administrative Agent.
(e) Survival. Without prejudice to the survival of any other agreement
of the Borrowers hereunder, the agreements and obligations of the Borrowers
contained in this Section 4.12 shall survive the payment in full of the
Obligations and the termination of the Commitments.
ARTICLE V
CLOSING; CONDITIONS OF CLOSING AND BORROWING
SECTION 5.1. Closing. The closing shall take place at the offices of
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, L.L.P., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ at 10:00 a.m. on December 19th, 1997, or on such
other date as the parties hereto shall mutually agree.
SECTION 5.2. Conditions to Closing and Initial Extensions of Credit .
The obligation of the Lenders to close this Agreement and to make the initial
Loan or issue the initial Letter of Credit is subject to the satisfaction of
each of the following conditions:
(a) Executed Loan Documents. The following Loan Documents, in form and
substance satisfactory to the Managing Agents and each Lender:
(i) this Agreement;
(ii) the Revolving Credit Notes;
(iii) the Swingline Note;
(iv) the Security Agreement;
(v) the Trademark Assignment;
(vi) the Pledge Agreements;
(vii) the Mortgages;
(viii) the Canadian Security Documents;
(ix) the U.K. Security Documents;
(x) the German Security Documents (subject to Section
8.15 with respect to the German Pledge Agreement);
and
(xi) the Intercompany Subordination Agreement;
shall have been duly authorized, executed and delivered by the parties thereto,
shall be in full force and effect and no default shall exist thereunder, and the
Borrowers shall have delivered original counterparts thereof to the
Administrative Agent. Upon receipt of the Notes payable thereto, each
Lender will return to the Agent for return to the Borrowers and cancellation its
original promissory notes provided pursuant to the First Amended and Restated
Credit Agreement.
(b) Closing Certificates; etc.
(i) Compliance Certificate of the Borrowers. The
Administrative Agent shall have received a certificate from the chief financial
officer or treasurer of ACC, in form and substance reasonably satisfactory to
the Administrative Agent, to the effect that all representations and warranties
of the Borrowers contained in this Agreement and the other Loan Documents are
true, correct and complete in all material respects; that the Borrowers are not
in violation of any of the covenants contained in this Agreement and the other
Loan Documents; that, after giving effect to the transactions contemplated by
this Agreement, no Default or Event of Default has occurred and is continuing;
that the Borrowers have satisfied each of the closing conditions to be satisfied
thereby; and that the Borrowers have filed all material tax returns and owe no
material delinquent taxes.
(ii) Certificate of Secretary of each Borrower. The
Administrative Agent shall have received a certificate of the secretary or
assistant secretary (or director with respect to ACC U.K.) of each Borrower
certifying, as applicable, that attached thereto is a true and complete copy of
the articles of incorporation or other charter documents of such Borrower and
all amendments thereto, certified as of a recent date by the appropriate
Governmental Authority in its jurisdiction of incorporation; that attached
thereto is a true and complete copy of the bylaws of such Borrower as in effect
on the date of such certification; that attached thereto is a true and complete
copy of resolutions duly adopted by the Board of Directors of such Borrower,
authorizing the borrowings contemplated hereunder and the execution, delivery
and performance of this Agreement and the other Loan Documents to which it is a
party; and as to the incumbency and genuineness of the signature of each officer
of such Borrower executing Loan Documents to which such Person is a party.
(iii) Certificates of Good Standing. The Administrative Agent
shall have received long-form certificates as of a recent date of the good
standing of each Borrower under the laws of their respective jurisdictions of
organization and such other jurisdictions requested by the Managing Agents.
(iv) Opinions of Counsel. The Administrative Agent shall have
received favorable opinions of United States, Canadian, United Kingdom and
German counsel to the Borrowers addressed to the Managing Agents and Lenders
with respect to such Persons, the Loan Documents and regulatory matters
(including without limitation Communications Licenses and PUC Authorizations)
reasonably satisfactory in form and substance to the Managing Agents and
Lenders.
(c) Collateral.
(i) Filings and Recordings. All filings that are necessary to
perfect the Liens of the Administrative Agent and the Lenders in the Collateral
described in the Security Documents
shall have been filed in all appropriate locations and the Administrative Agent
shall have received evidence satisfactory to the Administrative Agent that such
security interests constitute valid and perfected first priority Liens therein,
subject to Liens permitted by Section 10.3.
(ii) Pledged Stock. The Administrative Agent shall have
received original stock certificates evidencing the capital stock pledged
pursuant to the Pledge Agreements, any Canadian Security Document, any U.K.
Security Document and (to the extent applicable) any German Security Document,
together with an appropriate undated stock power for each certificate (to the
extent applicable) duly executed in blank by the registered owner thereof
(except that such stock certificates of United Telecom Ltd. shall be delivered
to the Administrative Agent as soon as possible (and in any event no later than
7 days) after their registration in favor of ACC U.K., and, notwithstanding the
foregoing, the Administrative Agent shall have received a Stock Transfer Form
for such certificate duly executed in blank and acceptable to the Administrative
Agent in lieu thereof prior to the Closing Date).
(iii) Lien Searches. The Administrative Agent shall have
received the results of any Lien search requested by the Administrative Agent of
filings made against such Borrowers under the Uniform Commercial Code, personal
property security legislation or legislation as to registration of security on
movable property as in effect in any jurisdiction in which any of their assets
are located, indicating among other things that their assets are free and clear
of any Lien except for the Liens permitted by Section 10.3.
(iv) Mortgage Documents. The Administrative Agent shall have
received such mortgagee title and hazard insurance policies, title searches,
property surveys, appraisals and environmental assessments with respect to each
property covered by a Mortgage as it shall reasonably request in writing from
the applicable Borrower.
(v) Insurance. The Administrative Agent shall have received
certificates of insurance and copies (certified by the applicable Borrower) of
insurance policies in the form required under Section 8.3 and the Security
Documents and otherwise in form and substance reasonably satisfactory to the
Managing Agents.
(d) Consents; No Adverse Change.
(i) Governmental and Third Party Approvals. All necessary
approvals, authorizations and consents, if any are required, of any Person and
of all Governmental Authorities and courts having jurisdiction with respect to
the execution and delivery of this Agreement and the other Loan Documents shall
have been obtained and copies thereof delivered to the Administrative Agent.
(ii) Permits and Licenses. All permits and licenses, including
permits and licenses required under Applicable Laws, necessary to the current
conduct of business by the Borrowers and their Subsidiaries shall have been
obtained.
(iii) No Injunction, Etc. No action, proceeding,
investigation, regulation or legislation shall have been instituted, threatened
or proposed before any Governmental Authority to enjoin, restrain, or prohibit,
or to obtain substantial damages in respect of, or which is related to or arises
out of this Agreement or the other Loan Documents or the consummation of the
transactions contemplated hereby or thereby, or which, in the Managing Agents'
reasonable discretion, would make it inadvisable to consummate the transactions
contemplated by this Agreement and such other Loan Documents.
(iv) No Material Adverse Change. There shall not have occurred
any material adverse change in the condition (financial or otherwise),
operations, properties, business or prospects of the Borrowers and their
Subsidiaries, or any event or condition that has had or could be reasonably
expected to have a Material Adverse Effect.
(v) No Event of Default. No Default or Event of Default shall
have occurred and be continuing.
(e) Financial Matters.
(i) Financial Statements. The Managing Agents shall have
received the most recent audited Consolidated financial statements of ACC and
its Subsidiaries.
(ii) Financial Condition Certificate. ACC shall have delivered
to the Administrative Agent a certificate, in form and substance reasonably
satisfactory to such Agent, and certified as accurate in all material respects
by the chief financial officer or treasurer of ACC, that (A) attached thereto is
a pro forma balance sheet of ACC and its Subsidiaries setting forth on a pro
forma basis the financial condition of ACC and its Subsidiaries on a
Consolidated basis as of that date, reflecting on a pro forma basis the effect
of the transactions contemplated herein, including all material fees and
expenses in connection therewith, and evidencing compliance on a pro forma basis
with the covenants contained in Article IX hereof, (B) the financial projections
previously delivered to the Managing Agents represent the good faith opinions of
the Borrowers and senior management thereof as to the projected results
contained therein, and (C) attached thereto is a calculation of the Applicable
Margin in accordance with Section 4.1(c) as of September 30, 1997.
(iii) Payment at Closing. (A) There shall have been paid by
the Borrowers to the Administrative Agent for the account of the Lenders the
amendment fee and incremental commitment fee payable pursuant to the fee letter
referred to in Section 4.3(b) and (B) the Agents and the Lenders shall have
received any other accrued and unpaid fees or commissions due hereunder
(including, without limitation, legal fees and expenses), and to any other
Person such amount as may be due thereto in connection with the transactions
contemplated hereby, including all taxes, fees and other charges in connection
with the execution, delivery, recording, filing and registration of any of the
Loan Documents. The Administrative Agent shall have received duly authorized and
executed copies of the fee letter referred to in Section 4.3(b).
(f) Miscellaneous.
(i) Notice of Borrowing. The Administrative Agent shall have
received a Notice of Borrowing from the Borrowers in accordance with Section
2.3(a), and a Notice of Account Designation specifying the account or accounts
to which the proceeds of any Loans made after the Closing Date are to be
disbursed.
(ii) Proceedings and Documents. All opinions, certificates and
other instruments and all proceedings in connection with the transactions
contemplated by this Agreement shall be reasonably satisfactory in form and
substance to the Lenders. The Lenders shall have received copies of all other
instruments and other evidence as the Lender may reasonably request, in form and
substance reasonably satisfactory to the Lenders, with respect to the
transactions contemplated by this Agreement and the taking of all actions in
connection therewith.
(iii) Due Diligence and Other Documents. The Borrowers shall
have delivered to the Administrative Agent such other documents, certificates
and opinions as the Managing Agents reasonably request, including without
limitation copies of each document evidencing or governing the Subordinated
Debt, certified by a secretary or assistant secretary of the applicable Borrower
as a true and correct copy thereof.
(iv) Delivery of U.S. Tax Forms. Each Lender organized under
the laws of a jurisdiction other than the United States or any state thereof
shall deliver to the Administrative Agent on the Closing Date (A) two United
States Internal Revenue Service Forms 4224 or Forms 1001, as applicable (or
successor forms), properly completed and certifying in each case that such
Lender is entitled to a complete exemption from withholding or deduction for or
on account of any United States federal income taxes, and (B) an Internal
Revenue Service Form W-8 or W-9 or successor applicable form, as the case may
be, to establish an exemption from United States backup withholding taxes. (Each
such Lender further agrees to deliver to the Administrative Agent a Form 1001 or
4224 and Form W-8 or W-9, or applicable successor forms or manner of
certification, as the case may be, on or before the date that any such form
expires or becomes obsolete or after the occurrence of any event requiring a
change in the most recent form previously delivered by it to the Borrower,
unless in any such case an event has occurred prior to the date on which any
such delivery would otherwise be required which renders such forms inapplicable
or the exemption to which such forms relate unavailable and such Lender notifies
the Borrower and the Agent that it is not entitled to receive payments without
deduction or withholding of United States federal income taxes).
(v) Delivery of U.K. Tax Forms. Each Lender organized under
the laws of the United States or any state thereof shall deliver to the
Administrative Agent on the Closing Date (A) two United Kingdom Inland Revenue
Forms FD13 (or successor forms), one with respect to ACC U.K. and one with
respect to United Telecom Ltd., properly completed and (B) any other U.K. tax
forms reasonably requested by the Adminstrative Agent.
(vi) United Telecom Charter Amendment. The constitutional
documents of United Telecom Ltd. shall have been amended in a manner reasonably
satisfactory to the Administrative Agent such that any restriction on the
transfer of its shares to the Administrative Agent in connection with its
exercise of remedies hereunder is removed.
(vii) Refinancing. On the Closing Date hereunder, (i) all
loans under the First Amended and Restated Credit Agreement ("Existing Loans")
made by any lender who is not a Lender hereunder shall be repaid in full and the
commitments and other obligations and (except as expressly set forth in the
First Amended and Restated Credit Agreement) the rights of such lender shall be
terminated, (ii) all outstanding Existing Loans shall be Revolving Credit Loans
hereunder (secured by the Security Documents) and the Borrowers shall make such
repayments, and the Administrative Agent shall make such transfers of funds, as
are necessary in order that the outstanding balance of such Loans, together with
any Loans funded on the Closing Date, reflect the Commitments of the Lenders
hereunder, (iii) all Letters of Credit issued under the First Amended and
Restated Credit Agreement shall be Letters of Credit hereunder and each Lender
shall be deemed to have purchased a participation therein pursuant to Section
3.4 in accordance with its Commitment Percentage, (iv) there shall have been
paid in cash in full all accrued but unpaid interest due on the Existing Loans
to but excluding the Closing Date, (v) there shall have been paid in cash in
full all accrued but unpaid fees under the First Amended and Restated Credit
Agreement due to but excluding the Closing Date and all other amounts, costs and
expenses then owing to any of the lenders thereunder and/or any Agent, as agent
under the First Amended and Restated Credit Agreement, in each case to the
satisfaction of such Agent or lender, as the case may be, regardless of whether
or not such amounts would otherwise be due and payable at such time pursuant to
the terms of the First Amended and Restated Credit Agreement and (vi) all
outstanding promissory notes issued by the Borrowers to the lenders under the
First Amended and Restated Credit Agreement shall be promptly returned to the
Administrative Agent who shall forward such notes to the Borrower.
(viii) TCG Amendment. An amendment to the Agreement and Plan
of Merger by and among Teleport Communications Group, Inc., TCG Merger Co.,
Inc., and ACC, dated as of November 26, 1997, in form and substance satisfactory
to the Administrative Agent and permitting the execution of all Loan Documents
by all Borrowers party thereto.
SECTION 5.3. Conditions to All Extensions of Credit. The obligations of
the Lenders to make any Loan (subject to Section 2.2(b) with respect to
Swingline Loans) or issue or participate in any Letter of Credit are subject to
the satisfaction of the following conditions precedent on the relevant borrowing
or issue date, as applicable:
(a) Continuation of Representations and Warranties. The representations
and warranties contained in Article VI shall be true and correct on and as of
such borrowing or issuance date with the same effect as if made on and as of
such date.
(b) No Existing Default. No Default or Event of Default shall have
occurred and be continuing hereunder on (i) the borrowing date with respect to
such Loan or after giving
effect to the Revolving Credit Loans to be made on such date or (ii) the issue
date with respect to such Letter of Credit or after giving effect to such
Letters of Credit on such date.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF BORROWERS
SECTION 6.1. Representations and Warranties. To induce the Agents to
enter into this Agreement and the Lenders to make the Loans or issue or
participate in the Letters of Credit, the Borrowers hereby represent and warrant
to the Agents and Lenders that:
(a) Organization; Power; Qualification. Each of ACC and its
Subsidiaries is duly organized, validly existing and in good standing under the
laws of the jurisdiction of its incorporation or formation, has the power and
authority to own its properties and to carry on its business as now being
conducted and is duly qualified and authorized to do business in each
jurisdiction where its business requires such qualification and authorization,
except in those jurisdictions in which the failure to so qualify could not
reasonably be expected to have a Material Adverse Effect. The jurisdictions in
which ACC and its Subsidiaries are organized and qualified to do business as of
the Closing Date are described on Schedule 6.1(a).
(b) Ownership. Each Material Subsidiary and other Subsidiary as of the
Closing Date of ACC is listed on Schedule 6.1(b) and each Material Subsidiary as
of the Closing Date is so designated on such Schedule. As of the Closing Date,
the capitalization of ACC and its Subsidiaries consists of the number of shares,
authorized, issued and outstanding, of such classes and series, with or without
par value, described on Schedule 6.1(b). All outstanding shares have been duly
authorized and validly issued and are fully paid and nonassessable. The
shareholders of the Subsidiaries of ACC and the number of shares owned by each
as of the Closing Date are described on Schedule 6.1(b). As of the Closing Date,
there are no outstanding stock purchase warrants, subscriptions, options,
securities, instruments or other rights of any type or nature whatsoever, which
are convertible into, exchangeable for or otherwise provide for or permit the
issuance of capital stock of ACC or its Subsidiaries, except as described on
Schedule 6.1(b).
(c) Authorization of Agreement, Loan Documents and Borrowing. Each of
ACC and its Subsidiaries has the right, power and authority and has taken all
necessary corporate and other action to authorize the execution, delivery and
performance of this Agreement and each of the other Loan Documents to which it
is a party in accordance with their respective terms. This Agreement and each of
the other Loan Documents have been duly executed and delivered by the duly
authorized officers of ACC and each of its Subsidiaries party thereto and each
such document constitutes the legal, valid and binding obligation of ACC or its
Subsidiary party thereto, enforceable in accordance with its terms, except as
such enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar state, provincial or federal debtor relief laws from time
to time in effect which affect the enforcement of creditors' rights in general
and the availability of equitable remedies.
(d) Compliance of Agreement, Loan Documents and Borrowing with Laws,
Etc. The execution, delivery and performance by ACC and its Subsidiaries of the
Loan Documents to which each such Person is a party, in accordance with their
respective terms, the borrowings hereunder and the transactions contemplated
hereby do not and will not, by the passage of time, the giving of notice or
otherwise, (i) except as set forth on Schedule 6.1(d) hereto, require any
Governmental Approval as of the Closing Date, (ii) violate any Applicable Law
relating to ACC or any of its Subsidiaries, except to the extent that any such
violation could not reasonably be expected to have a Material Adverse Effect,
(iii) conflict with, result in a breach of or constitute a default under the
articles of incorporation, bylaws or other organizational documents of ACC or
any of its Subsidiaries or any material indenture, agreement or other instrument
to which such Person is a party or by which any of its properties may be bound
or any Governmental Approval relating to such Person or (iv) result in or
require the creation or imposition of any Lien upon or with respect to any
material property now owned or hereafter acquired by such Person other than
Liens arising under the Loan Documents.
(e) Compliance with Law; Governmental Approvals. Each of ACC and its
Subsidiaries (i) has all material Governmental Approvals required by any
Applicable Law for it to conduct its business. Each such Governmental Approval
is in full force and effect, is final and not subject to review on appeal and is
not the subject of any pending or, to the best of its knowledge, threatened
attack by direct or collateral proceeding and (ii) is in compliance with each
material Governmental Approval applicable to it and in material compliance with
all other Applicable Laws relating to it or any of its respective properties.
(f) Tax Returns and Payments. Each of ACC and its Subsidiaries has duly
filed or caused to be filed all federal, state, provincial, local and other tax
returns required by Applicable Law to be filed, and has paid, or made adequate
provision for the payment of, all federal, state, provincial, local and other
taxes, assessments and governmental charges or levies upon it and its property,
income, profits and assets which are due and payable, except where the payment
of such tax is being disputed in good faith and adequate reserves have been
established in accordance with GAAP. No Governmental Authority has asserted any
Lien or other claim against ACC or any Subsidiary thereof with respect to
material unpaid taxes which has not been discharged or resolved or is not being
contested in good faith. The charges, accruals and reserves on the books of ACC
and any of its Subsidiaries in respect of federal, state, provincial, local and
other taxes for all Fiscal Years and portions thereof are in the judgment of ACC
adequate, and ACC does not anticipate any additional material taxes or
assessments for any of such years.
(g) Environmental Matters. (i) To the best knowledge of the Borrowers,
the properties of ACC and its Subsidiaries do not contain, and have not
previously contained, any Hazardous Materials in amounts or concentrations which
(A) constitute or constituted a material violation of, or (B) could give rise to
material liability under, applicable Environmental Laws;
(ii) Such properties and all operations conducted in
connection therewith are in material compliance, and have been in material
compliance, with all applicable Environmental Laws, and to the best knowledge of
the Borrowers, there is no contamination at or under such properties or such
operations in violation of applicable Environmental Laws or which could
materially interfere with the continued operation of such properties or, if such
properties are owned by any such Person, materially impair the fair saleable
value thereof;
(iii) Neither ACC nor any Subsidiary thereof has received any
notice of material violation, alleged violation, non-compliance, liability or
potential liability regarding environmental matters or compliance with
Environmental Laws with regard to any of their properties or the operations
conducted in connection therewith, nor does ACC or any Subsidiary thereof have
knowledge or reason to believe that any such notice will be received or is being
threatened;
(iv) Hazardous Materials have not been transported or disposed
of from the properties of ACC and its Subsidiaries in violation of, or in a
manner or to a location which could give rise to material liability under,
Environmental Laws, nor to the best knowledge of the Borrowers, have any
Hazardous Materials been generated, treated, stored or disposed of at, on or
under any of such properties in material violation of, or in a manner that could
give rise to material liability under, any applicable Environmental Laws;
(v) No judicial proceedings or governmental or administrative
action is pending, or to the best knowledge of the Borrowers, threatened, under
any Environmental Law to which ACC or any Subsidiary thereof is or will be named
as a party with respect to such properties or operations conducted in connection
therewith, nor are there any consent decrees or other decrees, consent orders,
administrative orders or other orders, or other administrative or judicial
requirements outstanding under any Environmental Law with respect to such
properties or such operations; and
(vi) There has been no release, or to the best knowledge of
the Borrowers, threat of release, of Hazardous Materials at or from such
properties, in violation of or in amounts or in a manner that could give rise to
material liability under Environmental Laws.
(h) Employee Benefit Plans and Canadian Plans.
(i) Neither ACC nor any ERISA Affiliate maintains or
contributes to, or has any obligation under, any Employee Benefit Plans,
Canadian Plans or German Plans other than those identified on Schedule 6.1(h);
(ii) ACC and each ERISA Affiliate are in material compliance
with all applicable provisions of ERISA and the regulations and published
interpretations thereunder with respect to all Employee Benefit Plans except for
any required amendments for which the remedial amendment period as defined in
Section 401(b) of the Code has not yet expired. Each Employee Benefit Plan that
is intended to be qualified under Section 401(a) of the Code has been determined
by the Internal Revenue Service to be so qualified, and each trust related to
such plan has been determined to be exempt under Section 501(a) of the Code. No
liability has been incurred by ACC or any ERISA Affiliate which remains
unsatisfied for any taxes or penalties with respect to any Employee Benefit Plan
or any Multiemployer Plan;
(iii) No Pension Plan has been terminated, nor has any
accumulated funding deficiency (as defined in Section 412 of the Code) been
incurred (without regard to any waiver granted under Section 412 of the Code),
nor has any funding waiver from the Internal Revenue Service been received or
requested with respect to any Pension Plan, nor has ACC or any ERISA Affiliate
failed to make any contributions or to pay any amounts due and owing as required
by Section 412 of the Code, Section 302 of ERISA or the terms of any Pension
Plan prior to the due dates of such contributions under Section 412 of the Code
or Section 302 of ERISA, nor has there been any event requiring any disclosure
under Section 4041(c)(3)(C) or 4063(a) of ERISA with respect to any Pension
Plan;
(iv) Neither ACC nor any ERISA Affiliate has: (A) engaged in a
nonexempt prohibited transaction described in Section 406 of the ERISA or
Section 4975 of the Code; (B) incurred any liability to the PBGC which remains
outstanding other than the payment of premiums and there are no premium payments
which are due and unpaid; (C) failed to make a required contribution or payment
to a Multiemployer Plan; or (D) failed to make a required installment or other
required payment under Section 412 of the Code;
(v) No Termination Event or Canadian Termination Event has
occurred or is reasonably expected to occur;
(vi) No material proceeding, claim, lawsuit and/or
investigation is existing or, to the best knowledge of ACC after due inquiry,
threatened concerning or involving any (A) employee welfare benefit plan (as
defined in Section 3(1) of ERISA) currently maintained or contributed to by ACC
or any ERISA Affiliate, (B) Pension Plan, (C) Multiemployer Plan, (D) Canadian
Plan or (E) German Plan;
(vii) ACC and its Subsidiaries are in material compliance with
all Canadian Law relating to employee benefit plans, pension plans and
retirement savings plans and no liability has been incurred in respect thereof
that remains unsatisfied; and
(viii) No Canadian Plan or German Plan has been terminated nor
is there any funding deficiency in respect thereof that has not been remedied or
any contributions or premiums thereto that have not been paid.
(i) Margin Stock. Neither ACC nor any Subsidiary thereof is engaged
principally or as one of its activities in the business of extending credit for
the purpose of "purchasing" or "carrying" any "margin stock" (as each such term
is defined or used in Regulations G and U of the Board of Governors of the
Federal Reserve System). No part of the proceeds of any of the Loans or Letters
of Credit will be used for purchasing or carrying margin stock or for any
purpose which violates, or which would be inconsistent with, the provisions of
Regulation G, T, U or X of such Board of Governors.
(j) Government Regulation. Neither ACC nor any Subsidiary thereof is an
"investment company" or a company "controlled" by an "investment company" (as
each such term is defined or used in the Investment Company Act of 1940, as
amended) and neither ACC nor any
Subsidiary thereof is, or after giving effect to any Extension of Credit will
be, a "Holding Company" or a "Subsidiary Company" of a "Holding Company" or an
"Affiliate" of a "Holding Company" within the respective meanings of each of the
quoted terms of the Public Utility Holding Company Act of 1935 as amended, or
any other Applicable Law which materially limits its ability to incur or
consummate the transactions contemplated hereby.
(k) Patents, Copyrights and Trademarks. Each of ACC and its
Subsidiaries owns or possesses all patent, copyright and trademark rights which
are required to conduct its business, without infringing upon any validly
asserted rights of others, except where the failure to so own or possess could
not reasonably be expected to have a Material Adverse Effect. No event has
occurred which permits, or after notice or lapse of time or both would permit,
the revocation or termination of any such rights. Neither ACC nor any of its
Subsidiaries have been threatened with any litigation regarding patents,
copyrights or trademarks that would present a material impediment to the
business of any such Person.
(l) Material Contracts. Schedule 6.1(l) sets forth a complete and
accurate list of all Material Contracts of ACC and its Subsidiaries in effect as
of the Closing Date not listed on any other Schedule hereto; other than as set
forth in Schedule 6.1(l), each of ACC and any Subsidiary thereof party thereto
has performed all of its obligations under such Material Contracts and, to the
best knowledge of the Borrowers, each other party thereto is in compliance with
each such Material Contract, and each such Material Contract is, and after
giving effect to the consummation of the transactions contemplated by the Loan
Documents will be, in full force and effect in accordance with the terms
thereof. ACC and its Subsidiaries have delivered to the Administrative Agent a
true and complete copy of each Material Contract required to be listed on
Schedule 6.1(l).
(m) Employee Relations. None of ACC and its Subsidiaries is, except as
set forth on Schedule 6.1(m), party to any collective bargaining agreement nor
has any labor union been recognized as the representative of the employees of
any such Person. ACC knows of no pending, threatened or contemplated strikes,
work stoppage or other collective labor disputes involving its employees or
those of its Subsidiaries.
(n) Burdensome Provisions. Neither ACC nor any Subsidiary thereof is a
party to any indenture, agreement, lease or other instrument, or subject to any
corporate or partnership restriction, Governmental Approval or Applicable Law
which is so unusual or burdensome as in the foreseeable future could be
reasonably expected to have a Material Adverse Effect. ACC and its Subsidiaries
do not presently anticipate that future expenditures needed to meet the
provisions of any statutes, orders, rules or regulations of a Governmental
Authority will be so burdensome as to have a Material Adverse Effect.
(o) Financial Statements. The (i) Consolidated balance sheets of ACC
and its Subsidiaries as of December 31, 1996, and the related statements of
income and retained earnings and cash flows for the Fiscal Year then ended and
(ii) unaudited Consolidated balance sheet of ACC and its Subsidiaries as of
September 30, 1997 and related unaudited interim statements of income and cash
flows, copies of which have been furnished to the Administrative Agent and each
Lender, are complete and correct and fairly present the assets, liabilities and
financial position of ACC and its Subsidiaries, as at such dates, and the
results of the operations and changes of financial position for the periods then
ended. All such financial statements, including the related schedules and notes
thereto, have been prepared in accordance with GAAP. ACC and its Subsidiaries
have no material Debt, obligation or other unusual forward or long-term
commitment which is not disclosed in the foregoing financial statements or in
the notes thereto.
(p) No Material Adverse Effect. Since December 31, 1996, there has been
no event or condition that has had or is reasonably likely to have a Material
Adverse Effect.
(q) Solvency. As of the Closing Date and after giving effect to each
Extension of Credit made hereunder, ACC and its Subsidiaries taken as a whole
will be Solvent.
(r) Titles to Properties. Each of ACC and its Subsidiaries has such
title to the real property owned or leased by it as is necessary or desirable to
the conduct of its business and good and marketable title to all of its personal
property sufficient to carry on its business as presently conducted, except such
property as has been disposed of by ACC or its Subsidiaries subsequent to such
date which dispositions have been in the ordinary course of business or as
otherwise expressly permitted hereunder. Schedule 6.1(r) hereto sets forth the
address of all real property owned or leased by a Borrower and its Subsidiaries
(and if leased, the record owner thereof).
(s) Liens. None of the properties and assets of ACC or any Subsidiary
thereof is subject to any Lien, except in each case Liens permitted pursuant to
Section 10.3. No financing statement or application for registration under the
Uniform Commercial Code of any state or personal property security legislation
or legislation as to registration of security on movable property of any other
jurisdiction which names ACC or any Subsidiary thereof or any of their
respective trade names or divisions as debtor or grantor and which has not been
terminated, has been filed in any state or other jurisdiction and neither ACC
nor any Subsidiary thereof has signed any such financing statement or
application for registration or any security agreement authorizing any secured
party thereunder to file any such financing statement or application for
registration, except to perfect those Liens permitted by Section 10.3 hereof.
(t) Debt and Contingent Obligations. Schedule 6.1(t) is a complete and
correct listing of all Debt and Contingent Obligations of ACC and its
Subsidiaries in excess of $500,000. ACC and its Subsidiaries have performed and
are in material compliance with all of the terms of such Debt and Contingent
Obligations and all instruments and agreements relating thereto, and no default
or event of default, or event or condition which with notice or lapse of time or
both would constitute such a default or event of default on the part of ACC or
its Subsidiaries exists with respect to any such Debt or Contingent Obligation.
(u) Litigation. Except as set forth on Schedule 6.1(u), there are no
actions, suits or proceedings pending nor, to the knowledge of ACC, threatened
against or in any other way relating adversely to or affecting ACC or any
Subsidiary thereof or any of their respective properties in any court or before
any arbitrator of any kind or before or by any Governmental Authority the result
of which could reasonably be expected to have a Material Adverse Effect.
(v) Communications Regulatory Matters.
(i) Each Network Agreement has been duly executed and
delivered by the respective parties thereto, is in full force and effect and
neither the Borrowers, any Subsidiary thereof nor, to the best knowledge of the
Borrowers, any of the other parties thereto, is in default of any of the
provisions thereof in any material respect.
(ii) Schedule 6.1(v) hereto sets forth, as of the date hereof,
a true and complete list of the following information for each Communications
License or PUC Authorization issued to ACC or any its Subsidiaries: (A) for all
Communications Licenses, the name of the licensee, the type of service and the
expiration dates; and (B) for each PUC Authorization, the geographic area
covered by such PUC Authorization, the services that may be provided thereunder
and the expiration date, if any.
(iii) The Communications Licenses and PUC Authorizations
specified on Schedule 6.1(v) hereto are valid and in full force and effect
without conditions except for such conditions as are generally applicable to
holders of such Communications Licenses and PUC Authorizations. No event has
occurred and is continuing which could reasonably be expected to (A) result in
the imposition of a material forfeiture or the revocation, termination or
adverse modification of any such Communications License or PUC Authorization or
(B) materially and adversely affect any rights of ACC or any of its Subsidiaries
thereunder. ACC has no reason to believe and has no knowledge that
Communications Licenses and PUC Authorizations will not be renewed in the
ordinary course.
(iv) All of the material properties, equipment and systems
owned, leased or managed by ACC and its Subsidiaries are, and (to the best
knowledge of ACC) all such property, equipment and systems to be acquired or
added in connection with any contemplated system expansion or construction will
be, in good repair, working order and condition (reasonable wear and tear
excepted) and are and will be in compliance with all terms and conditions of the
Communications Licenses and PUC Authorizations and all standards or rules
imposed by any Governmental Authority or as imposed under any agreements with
telephone companies and customers.
(v) ACC and each of its Subsidiaries have paid all franchise,
license or other fees and charges which have become due pursuant to any
Governmental Approval in respect of their business and have made appropriate
provision as is required by GAAP for any such fees and charges which have
accrued.
(w) Absence of Defaults. No event has occurred and is continuing which
constitutes a Default or an Event of Default, or which constitutes, or which
with the passage of time or giving of notice or both would constitute, a default
or event of default by ACC or any Subsidiary thereof under any Material Contract
or judgment, decree or order to which ACC or its Subsidiaries are a party or by
which ACC or its Subsidiaries or any of their respective properties may be bound
or which would require ACC or its Subsidiaries to make any payment thereunder
prior to the scheduled maturity date therefor.
(x) Senior Debt. All of the Obligations of ACC and its Subsidiaries
under the Loan Documents are entitled to the benefits of the subordination
provisions of the documents evidencing any Subordinated Debt. ACC acknowledges
that the Agents and Lenders are entering into this Agreement and the Lenders are
making Extensions of Credit in reliance upon such subordination provisions.
(y) Year 2000 Compatibility. The Borrowers have taken all action
necessary to assure that the computer based systems of the Borrowers are able to
operate and effectively process data including dates on and after January 1,
2000. At the request of the Administrative Agent, the Borrowers shall provide
assurance reasonably acceptable to the Administrative Agent and the Lenders of
the Borrowers' Year 2000 compatibility.
(z) Accuracy and Completeness of Information. All written information,
reports and other papers and data produced by or on behalf of ACC or any
Subsidiary thereof and furnished to the Lenders were, at the time the same were
so furnished, complete and correct in all material respects. No document
furnished or written statement made to the Agents or the Lenders by ACC or any
Subsidiary thereof in connection with the negotiation, preparation or execution
of this Agreement or any of the Loan Documents contains or will contain any
untrue statement of a fact material to the creditworthiness of ACC or its
Subsidiaries or omits or will omit to state a material fact necessary in order
to make the statements contained therein not misleading. ACC is not aware of any
facts which it has not disclosed in writing to the Agents having a Material
Adverse Effect, or insofar as ACC can now foresee, could reasonably be expected
to have a Material Adverse Effect.
SECTION 6.2. Survival of Representations and Warranties, Etc. All
representations and warranties set forth in this Article VI and all
representations and warranties contained in any certificate, or any of the Loan
Documents (including but not limited to any such representation or warranty made
in or in connection with any amendment thereto) shall constitute representations
and warranties made under this Agreement. All representations and warranties
made under this Agreement shall be made or deemed to be made at and as of the
Closing Date, shall survive the Closing Date and shall not be waived by the
execution and delivery of this Agreement, any investigation made by or on behalf
of the Lenders or any borrowing hereunder.
ARTICLE VII
FINANCIAL INFORMATION AND NOTICES
Until all the Obligations have been paid and satisfied in full and the
Commitments terminated, unless consent has been obtained in the manner set forth
in Section 14.11 hereof, the Borrowers will furnish or cause to be furnished to
the Administrative Agent and to the Lenders at their respective addresses as set
forth on Schedule 1.1(b), or such other office as may be designated by such
Agent and Lenders from time to time:
SECTION 7.1. Financial Statements and Projections.
(a) Quarterly Financial Statements. As soon as practicable and in any
event within forty-five (45) days after the end of each fiscal quarter, an
unaudited Consolidated and consolidating balance sheet of ACC and its
Subsidiaries as of the close of such fiscal quarter and unaudited Consolidated
and consolidating statements of income, shareholders' equity and cash flows for
the fiscal quarter then ended and that portion of the Fiscal Year then ended,
including the notes thereto (except with respect to consolidating statements),
all in reasonable detail setting forth in comparative form the corresponding
figures for the preceding Fiscal Year and prepared by ACC in accordance with
GAAP (except with respect to consolidating cash flows which shall be prepared in
a form consistent with past practices), and certified by the chief financial
officer of ACC to present fairly in all material respects the financial
condition of ACC and its Subsidiaries as of their respective dates and the
results of operations of ACC and its Subsidiaries for the respective periods
then ended, subject to normal year end adjustments.
(b) Annual Financial Statements. As soon as practicable and in any
event within one hundred and twenty (120) days after the end of each Fiscal
Year, an unaudited consolidating balance sheet and income statement of ACC and
its Subsidiaries and an audited Consolidated balance sheet of ACC and its
Subsidiaries as of the close of such Fiscal Year and audited Consolidated
statements of income, shareholders' equity and cash flows for the Fiscal Year
then ended, including the notes thereto, all in reasonable detail setting forth
in comparative form the corresponding figures for the preceding Fiscal Year and
audited by an independent certified public accounting firm of nationally
recognized standing in accordance with GAAP, and accompanied by a report thereon
by such certified public accountants that is not qualified with respect to scope
limitations imposed by ACC or any of its Subsidiaries or with respect to
accounting principles followed by ACC or any of its Subsidiaries not in
accordance with GAAP.
(c) Annual Business Plan and Financial Projections. As soon as
practicable and in any event within thirty (30) days prior to the beginning of
each Fiscal Year, a business plan of ACC and its Subsidiaries for the ensuing
four fiscal quarters, such plan to include, on a quarterly basis, the following:
a quarterly operating and capital budget, a projected income statement,
statement of cash flows and balance sheet, each prepared on a basis consistent
with GAAP, and a report containing management's discussion and analysis of such
projections (such business plan and projections, the "Projections"), accompanied
by a certificate from the chief financial officer of ACC to the effect that, to
the best of such officer's knowledge, the Projections are good faith estimates
of the anticipated financial condition and operations of ACC and its
Subsidiaries for such four quarter period based on the then current business
plan.
SECTION 7.2. Officer's Compliance Certificate. At each time financial
statements are delivered pursuant to Sections 7.1(a) or (b), a certificate of
any Authorized Officer of ACC in the form of Exhibit E attached hereto (an
"Officer's Compliance Certificate"):
(a) stating that such officer has reviewed such financial statements
and such statements fairly present the financial condition of the Borrowers as
of the dates indicated and the results of their operations and cash flows for
the periods indicated;
(b) stating that to such officer's knowledge, based on a reasonable
examination, no Default or Event of Default exists, or, if such is not the case,
specifying such Default or Event of Default and its nature, when it occurred,
whether it is continuing and the steps being taken by the Borrowers with respect
to such Default or Event of Default; and
(c) setting forth as at the end of such fiscal quarter or Fiscal Year,
as the case may be, the calculations required to establish whether or not ACC
and its Subsidiaries were in compliance with the financial covenants set forth
in Article IX hereof as at the end of each respective period and the calculation
of the Applicable Margin pursuant to Section 4.1(c) as at the end of each
respective period.
SECTION 7.3. Accountants' Certificate. At each time financial
statements are delivered pursuant to Section 7.1(b), a certificate of the
independent public accountants certifying such financial statements addressed to
the Managing Agents for the benefit of the Lenders stating that in making the
examination necessary for the certification of such financial statements, they
obtained no knowledge of any Default or Event of Default or, if such is not the
case, specifying such Default or Event of Default and its nature and period of
existence.
SECTION 7.4. Other Reports.
(a) Promptly upon receipt thereof, copies of any management report and
any management responses thereto submitted to any Borrower or its Board of
Directors by its independent public accountants in connection with their
auditing function;
(b) Within ten (10) Business Days after the receipt by ACC or any of
its Subsidiaries of notice that any Communications License or material PUC
Authorization has been lost or canceled, copies of any such notice accompanied
by a report describing the measures undertaken by ACC or any of its Subsidiaries
to prevent such loss or cancellation (and the anticipated impact, if any, that
such loss or cancellation will have upon the business of ACC and its
Subsidiaries);
(c) Promptly but in any event within ten (10) Business Days after the
filing thereof, a copy of (i) each report or other filing made by ACC or any of
its Subsidiaries with the Securities and Exchange Commission and required by the
SEC to be delivered to the shareholders of such Borrower or any of its
Subsidiaries, (ii) each report made by ACC or any of its Subsidiaries to the SEC
on Form 8-K and (iii) each final registration statement of ACC or any of its
Subsidiaries filed with the SEC; and
(d) Such other information regarding the operations, business affairs
and financial condition of ACC or any of its Subsidiaries as the Managing Agents
or any Lender may reasonably request.
SECTION 7.5. Notice of Litigation and Other Matters. Prompt (but in no
event later than three (3) days after an officer of any Borrower obtains
knowledge thereof) telephonic and written notice of:
(a) the commencement of all material proceedings and investigations by
or before any Governmental Authority and all actions and proceedings in any
court or before any arbitrator against or involving ACC or any Subsidiary
thereof or any of their respective properties, assets or businesses;
(b) any notice of any material violation received by ACC or any
Subsidiary thereof from any Governmental Authority including, without
limitation, any notice of a material violation of Environmental Laws;
(c) any labor controversy that has resulted in, or could reasonably be
expected to result in, a strike or other work action against ACC or any
Subsidiary thereof;
(d) any attachment, judgment, lien, levy or order exceeding $1,000,000
that may be assessed against or threatened against ACC or any Subsidiary
thereof;
(e) any Default or Event of Default, or any event which constitutes or
which with the passage of time or giving of notice or both would constitute a
default or event of default under any Subordinated Debt or other Material
Contract to which ACC or any of its Subsidiaries is a party or by which ACC or
any Subsidiary thereof or any of their respective properties may be bound;
(f) (i) the failure of ACC or any ERISA Affiliate to make a required
installment or payment under Section 302 of ERISA or Section 412 of the Code by
the due date, (ii) any Canadian Termination Event, (iii) any Termination Event
or "prohibited transaction", as such term
is defined in Section 406 of ERISA or Section 4975 of the Code, in connection
with any Employee Benefit Plan or any trust created thereunder, along with a
description of the nature thereof, what action ACC has taken, is taking or
proposes to take with respect thereto and, when known, any action taken or
threatened by the Internal Revenue Service, the Department of Labor or the PBGC
with respect thereto, (iv) all notices received by ACC or any ERISA Affiliate of
the PBGC's intent to terminate any Pension Plan or to have a trustee appointed
to administer any Pension Plan, (v) all notices received by ACC or any ERISA
Affiliate from a Multiemployer Plan sponsor concerning the imposition or amount
of withdrawal liability pursuant to Section 4202 of ERISA, (vi) any Borrower
obtaining knowledge or reason to know that ACC or any ERISA Affiliate has filed
or intends to file a notice of intent to terminate any Pension Plan under a
distress termination within the meaning of Section 4041(c) of ERISA, and (vii)
any notice from the Canadian federal Superintendent of Insurance or any other
Governmental Authority advising that the Governmental Authority intends to
declare a Canadian Plan terminated or appoint a trustee or curator thereto,
(viii) becoming aware, or receiving any notice from any Governmental Authority
that (A) ACC or any Subsidiary thereof has ceased to be in conformity with the
prescribed tests and standards applicable to a Canadian Plan, (B) any
administrator of a Canadian Plan has failed to furnish any prescribed
information and reports, or (C) any contravention of any applicable Canadian Law
has occurred, which, in each case, constitutes grounds under Canadian Law for
the termination of, or the appointment of a trustee or curator to, any Canadian
Plan or for the imposition of a fine or penalty;
(g) the enactment or promulgation after the date hereof of any federal,
state, provincial or local statute, regulation or ordinance or judicial or
administrative decision or order (or, to the extent that any Borrower has
knowledge thereof, any such proposed statute, regulation, ordinance, decision or
order, whether by the introduction of legislation or the commencement of
rulemaking or similar proceedings or otherwise) having a material effect or
relating to the operation of the Network Facilities by ACC or any of its
Subsidiaries (including, without limitation, any statutes, decisions or orders
affecting long distance telecommunication resellers generally and not directed
against ACC or any of its Subsidiaries specifically) which have been issued or
adopted (or which have been proposed) and which could reasonably be expected to
have a Material Adverse Effect; or
(h) any event which makes any of the representations set forth in
Section 6.1 inaccurate in any material respect.
SECTION 7.6. Accuracy of Information. All written information, reports,
statements and other papers and data furnished by or on behalf of any Borrower
to any Agent or Lender whether pursuant to this Article VII or any other
provision of this Agreement, or any of the Security Documents, shall be, at the
time the same is so furnished, complete and correct in all material respects
based on the applicable Borrower's knowledge thereof.
ARTICLE VIII
AFFIRMATIVE COVENANTS
Until all of the Obligations have been paid and satisfied in full and
the Commitments terminated, unless consent has been obtained in the manner
provided for in Section 14.11, each Borrower will, and will cause each of its
Subsidiaries to:
SECTION 8.1. Preservation of Corporate Existence and Related Matters.
Except as permitted by Section 10.5 or as a result of any Change in Control
which has been approved pursuant to Section 14.11, preserve and maintain its
separate corporate existence and all rights, franchises, licenses and privileges
necessary to the conduct of its business; and qualify and remain qualified as a
foreign corporation and authorized to do business in each jurisdiction where its
business requires such qualification and authorization.
SECTION 8.2. Maintenance of Property. Protect and preserve all
properties useful in and material to its business, including material
copyrights, patents, trade names and trademarks; maintain in good working order
and condition all buildings (reasonable wear and tear excepted), equipment and
other tangible real and personal property; and from time to time make or cause
to be made all renewals, replacements and additions to such property necessary
in the reasonable judgement of the Borrowers for the conduct of its business, so
that the business carried on in connection therewith may be properly and
advantageously conducted at all times.
SECTION 8.3. Insurance. In addition to the requirements set forth in
the Security Documents, maintain insurance with financially sound and reputable
insurance companies against such risks and in such amounts as are customarily
maintained by similar businesses and as may be required by Applicable Law, and
on the Closing Date and from time to time deliver to the Administrative Agent
upon its request a detailed list of the insurance then in effect, stating the
names of the insurance companies, the amounts and rates of the insurance, the
dates of the expiration thereof and the properties and risks covered thereby.
SECTION 8.4. Accounting Methods and Financial Records. Maintain a
system of accounting, and keep such books, records and accounts (which shall be
true and complete in all material respects) as may be required or as may be
necessary to permit the preparation of financial statements in accordance with
GAAP (or generally accepted accounting principles as in effect in Canada, the
United Kingdom and the Federal Republic of Germany with respect to the Canadian
Borrowers, the U.K. Borrowers and the German Borrowers, respectively) and in
compliance with the regulations of any Governmental Authority having
jurisdiction over it or any of its properties.
SECTION 8.5. Payment and Performance of Obligations. Pay and perform
all Obligations under this Agreement and the other Loan Documents and pay or
perform (a) all taxes, assessments and other governmental charges that may be
levied or assessed upon it or any of its property, and (b) all other
indebtedness, obligations and liabilities in accordance with customary trade
practices; provided, that ACC or such Subsidiary may contest any item described
in clauses
(a) and (b) hereof in good faith so long as adequate reserves are maintained
with respect thereto in accordance with GAAP.
SECTION 8.6. Compliance With Laws and Approvals. Observe and remain in
material compliance with all Applicable Laws and maintain in full force and
effect all material Governmental Approvals, in each case applicable or necessary
to the conduct of its business.
SECTION 8.7. Environmental Laws. In addition to and without limiting
the generality of Section 8.6, (a) comply in all material respects with, and use
its best efforts to ensure such compliance by all of its tenants and subtenants,
if any, with, all applicable Environmental Laws and obtain and comply with and
maintain, and use its best efforts to ensure that all of its tenants and
subtenants obtain and comply with and maintain, any and all licenses, approvals,
notifications, registrations or permits required by applicable Environmental
Laws; (b) conduct and complete all investigations, studies, sampling and
testing, and all remedial, removal and other actions required under
Environmental Laws, and timely comply with all lawful orders and directives of
any Governmental Authority regarding Environmental Laws; and (c) defend,
indemnify and hold harmless the Agents and the Lenders, and their respective
parents, Subsidiaries, Affiliates, employees, agents, officers and directors,
from and against any claims, demands, penalties, fines, liabilities,
settlements, damages, costs and expenses of whatever kind or nature known or
unknown, contingent or otherwise, arising out of, or in any way relating to the
violation of, noncompliance with or liability under any Environmental Laws
applicable to the operations of ACC or such Subsidiary, or any orders,
requirements or demands of Governmental Authorities related thereto, including,
without limitation, reasonable attorney's and consultant's fees, investigation
and laboratory fees, response costs, court costs and litigation expenses, except
to the extent that any of the foregoing arise out of or relate to the gross
negligence or willful misconduct of the party seeking indemnification therefor.
SECTION 8.8. Employee Benefit, Pension and Retirement Laws. If
applicable thereto, in addition to and without limiting the generality of
Section 8.6, make timely payment of contributions required to meet the minimum
funding standards set forth in ERISA with respect to any Employee Benefit Plan;
not take any action or fail to take action the result of which could be a
liability to the PBGC or to a Multiemployer Plan; not participate in any
prohibited transaction that could result in any civil penalty under ERISA or tax
under the Code; furnish to the Administrative Agent upon the Administrative
Agent's request such additional information about any Employee Benefit Plan as
may be reasonably requested by the Administrative Agent; and operate each
Employee Benefit Plan in such a manner that will not incur any tax liability
under Section 4980B of the Code or any liability to any qualified beneficiary as
defined in Section 4980B of the Code and not operate or fail to operate any
Canadian Plan or German Plan of ACC or any Subsidiary thereof in full conformity
and compliance with all federal and provincial laws and regulations and
contracts relating to any Canadian Plan or German Plan and, in particular but by
way of illustration only, make timely payments of all contributions required to
meet the minimum funding standards prescribed by such laws and regulations and
contracts and furnish to the Administrative Agent upon such Agent's request such
additional information about any Canadian Plan or German Plan as may be
reasonably requested by the Administrative Agent.
SECTION 8.9. Compliance With Agreements. Comply in all material
respects with each term, condition and provision of all leases, agreements and
other instruments entered into in the conduct of its business including, without
limitation, any Material Contract; provided, that ACC or such Subsidiary may
contest any such lease, agreement or other instrument in good faith so long as
adequate reserves are maintained in accordance with GAAP.
SECTION 8.10. Conduct of Business. Engage only in businesses in
substantially the same fields as the businesses conducted on the Closing Date
and, to the extent permitted by Section 10.4(c), in lines of business reasonably
related thereto.
SECTION 8.11. Visits and Inspections. Upon reasonable notice therefrom
and during normal business hours, permit representatives of any of the Agents
and Lenders, from time to time, to visit and inspect its properties; inspect,
audit and make extracts from its books, records and files, including, but not
limited to, management letters prepared by independent accountants; and discuss
with its principal officers, and its independent accountants, its business,
assets, liabilities, financial condition, results of operations and business
prospects.
SECTION 8.12. Material Subsidiaries; Additional Collateral. (a) Upon
the creation of any Material Subsidiary permitted by this Agreement, cause to be
executed and delivered to the Administrative Agent: (i) a Joinder Agreement and
the documents referred to therein; provided, that such Joinder Agreement shall
not be required with respect to any Material Subsidiary created as a result of
the Versatel Acquisition, (ii) if such Subsidiary is a Domestic Subsidiary, (A)
the supplement substantially in the form attached to the Security Agreement, (B)
the supplement substantially in the form attached to the applicable Pledge
Agreement, or if the owner of such Subsidiary is not ACC or ACC National, a
pledge agreement substantially in the form of a Pledge Agreement executed by
such owner with such modifications thereto as requested by the Required Lenders
and (C) a Mortgage and landlord consent with respect to any real property owned
or leased by such Subsidiary if reasonably requested by the Required Lenders,
(iii) if such Subsidiary is a Canadian Subsidiary, such joinder agreements as
reasonably requested by the Required Lenders in order that such Subsidiary
become a party to the Canadian Security Documents and/or such additional
Canadian Security Documents as reasonably requested by the Required Lenders,
(iv) if such Subsidiary is a U.K. Subsidiary, such joinder agreements as
reasonably requested by the Required Lenders in order that such Subsidiary
become a party to the U.K. Security Documents and/or such additional U.K.
Security Documents as reasonably requested by the Required Lenders, (v) if such
Subsidiary is a German Subsidiary, such joinder agreements as reasonably
requested by the Required Lenders in order that such Subsidiary become a party
to the German Security Documents and/or such additional German Security
Documents as reasonably requested by the Required Lenders, (vi) such other
documents reasonably requested by the Required Lenders consistent with the terms
of this Agreement which provide that such Subsidiary (if so required by this
Section 8.10) shall become a Borrower bound by all of the terms, covenants and
agreements contained in the Loan Documents and that the assets of such
Subsidiary shall become Collateral for the Obligations, (vii) with respect to
the Material Subsidiary created as a result of the Versatel Acquisition,
documents satisfactory to the Administrative Agent and Required Lenders
evidencing the valid pledge as collateral of 66.66% of the capital stock of such
Material Subsidiary and (viii) such other documents as the Required Lenders
shall reasonably
request, including without limitation, officers' certificates, financial
statements, opinions of counsel, board resolutions, charter documents,
certificates of existence and authority to do business and any other closing
certificates and documents described in Section 5.2.
(b) ACC shall, and cause its Material Subsidiaries to, promptly deliver
from time to time such additional Security Documents to the Administrative Agent
upon the request of the Required Lenders with respect to any assets of any such
Person not subject to an existing Lien in favor of the Administrative Agent for
the benefit of the Lenders (including, without limitation, Mortgages and
landlord consents with respect to each leased premises at which any Material
switching equipment is located).
SECTION 8.13. Hedging Agreement. (a) Maintain at all times Hedging
Agreements with respect to interest rate exposure under the Credit Agreement
with durations of at least two years and an aggregate notional principal amount
thereunder equal to at least fifty percent (50%) of the aggregate principal
Dollar Amount of the Extensions of Credit at interest rates not to exceed two
percent (2%) over the three month LIBOR Rate at the time of execution of such
Hedging Agreements with respect to each applicable Permitted Currency and
otherwise in form and substance reasonably satisfactory to the Managing Agents;
provided, that at any time the Leverage Ratio is less than 2.50 to 1.00, no such
Hedging Agreements shall be required and (b) maintain at all times Hedging
Agreements with respect to currency risk in form and substance reasonably
satisfactory to the Managing Agents.
SECTION 8.14. Further Assurances. Make, execute and deliver all such
additional and further acts, things, deeds and instruments as any Agent or
Lender may reasonably require to document and consummate the transactions
contemplated hereby and to vest completely in and insure each Agent and the
Lenders their respective rights under this Agreement, the Notes, the Letters of
Credit and the other Loan Documents.
SECTION 8.15. Post-Closing Matters
.
(a) Within thirty (30) days after the date hereof, provide a fully
executed and duly notarized German Pledge Agreement.
(b) Within one hundred twenty (120) days after the date hereof, with
respect to Vista International Communications, Inc., (i) provide to the
Administrative Agent satisfactory evidence that such Person has received all
Governmental Approvals required to become a Borrower hereunder and (ii) comply
with Section 8.12 hereof with respect to such Person.
(c) Within thirty (30) days after the date hereof, provide a fully
executed and duly executed Landlord Agreement with respect to ACC Canada's
leasehold property in Quebec.
ARTICLE IX
FINANCIAL COVENANTS
Until all of the Obligations have been paid and satisfied in full and
the Commitments terminated, unless consent has been obtained in the manner set
forth in Section 14.11 hereof, ACC and its Subsidiaries on a Consolidated basis
will not:
SECTION 9.1.Maximum Leverage Ratio. As of any date of determination,
permit the ratio (the "Leverage Ratio") of (a) Total Debt as of such date to (b)
Operating Cash Flow for the period of four (4) consecutive fiscal quarters
ending on or immediately prior to such date, to exceed the corresponding ratio
set forth below:
Period Ratio
Closing Date 6/30/98 3.50 to 1.00
7/1/98 - 12/31/98 3.00 to 1.00
1/1/99 - 12/31/99 2.50 to 1.00
1/1/00 and thereafter 2.00 to 1.00
SECTION 9.2. Minimum Pro Forma Debt Service Coverage Ratio. As of any
date of determination, permit the ratio of (a) Operating Cash Flow for the
period of four (4) consecutive fiscal quarters ending on or immediately prior to
such date to (b) Pro Forma Debt Service on such date to be less than 2.50 to
1.00.
SECTION 9.3. Fixed Charge Coverage Ratio. As of any date of
determination, permit the ratio of (a) Operating Cash Flow for the period of
four (4) consecutive fiscal quarters ending on or immediately prior to such date
to (b) Fixed Charges for the period of four (4) consecutive fiscal quarters
ending on or immediately prior to such date, during any given period, to be less
than the corresponding ratio set forth below:
Period Ratio
1/1/99 - 12/31/99 1.00 to 1.00
1/1/00 and thereafter 1.15 to 1.00
SECTION 9.4. Capital Expenditures. During Fiscal Year 1998, make
Capital Expenditures in excess of $70,000,000.
SECTION 9.5. Minimum Net Worth. Permit Consolidated Net Worth at any
time to be less than (a) $115,000,000 plus (b) fifty percent (50%) of
Consolidated Net Income of ACC and its Subsidiaries as of each fiscal quarter
end occurring after the Closing Date plus (c) one hundred percent (100%) of the
aggregate Net Cash Proceeds of any offering of capital stock of ACC or any of
its Wholly-Owned Subsidiaries received thereby after the Closing Date. For
purposes of this Section 9.5, the minimum required Consolidated Net Worth shall
not be reduced if Consolidated Net Income as of any fiscal quarter end is less
than zero.
ARTICLE X
NEGATIVE COVENANTS
Until all of the Obligations have been paid and satisfied in full and
the Commitments terminated, unless consent has been obtained in the manner set
forth in Section 14.11 hereof, each Borrower will not and will not permit any of
its Subsidiaries to:
SECTION 10.1. Limitations on Debt. Create, incur, assume or suffer to
exist any Debt except:
(a) the Obligations;
(b) Subordinated Debt, the Net Cash Proceeds of which are utilized to
repay the Obligations and, with respect to any such Net Cash Proceeds utilized
to reduce the Leverage Ratio to 3.00 to 1.00, permanently reduce the Aggregate
Commitment by the amount of such Net Cash Proceeds pursuant to Section
2.6(c)(i);
(c) Debt existing on the Closing Date and not otherwise permitted under
this Section 10.1, as set forth on Schedule 6.1(t) and the renewal and
refinancing (but not the increase) thereof;
(d) Debt consisting of Contingent Obligations permitted by Section
10.2;
(e) Debt of ACC and its Subsidiaries incurred in connection with
Capitalized Leases;
(f) purchase money Debt of ACC and its Subsidiaries; and
(g) unsecured Debt of ACC and its Subsidiaries;
provided, that the aggregate amount of the Debt permitted pursuant to clauses
(e), (f) and (g) plus the aggregate amount of Debt constituting Contingent
Obligations permitted by Sections 10.2(b), (d) and (f) shall not at any time
exceed $40,000,000.
SECTION 10.2. Limitations on Contingent Obligations. Create, incur,
assume or suffer to exist any Contingent Obligations except (a) Contingent
Obligations in favor of the Administrative Agent for the benefit of the Agents
and the Lenders, (b) Contingent Obligations
incurred as a general or joint venture partner in connection with any investment
in a partnership or joint venture permitted pursuant to Section 10.4, (c)
Contingent Obligations in respect of Network Agreements and Network Facilities
incurred in the ordinary course of business, (d) Contingent Obligations to
secure payment or performance of customer service contracts incurred in the
ordinary course of business, (e) Contingent Obligations with respect to
obligations under Hedging Agreements permitted pursuant to Section 10.13(b) and
(f) Contingent Obligations not covered by clauses (a) through (e) of this
Section; provided, that the aggregate outstanding principal amount of all
Contingent Obligations permitted by Sections 10.2(b), (d) and (f) plus the
aggregate outstanding principal amount of all Debt, without duplication,
outstanding under clauses (e), (f) and (g) of Section 10.1 shall not exceed
$40,000,000.
SECTION 10.3. Limitations on Liens. Create, incur, assume or suffer to
exist, any Lien on or with respect to any of its assets or properties (including
without limitation shares of capital stock or other ownership interests), real
or personal, whether now owned or hereafter acquired, except:
(a) Liens for taxes, assessments and other governmental charges or
levies (excluding any Lien imposed pursuant to any of the provisions of ERISA or
Environmental Laws) not yet due or as to w hich the period of grace (not to
exceed thirty (30) days), if any, related thereto has not expired or which are
being contested in good faith and by appropriate proceedings if adequate
reserves are maintained to the extent required by GAAP;
(b) the claims of materialmen, mechanics, carriers, warehousemen,
processors or landlords for labor, materials, supplies or rentals incurred in
the ordinary course of business, (i) which are not overdue for a period of more
than thirty (30) days or (ii) which are being contested in good faith and by
appropriate proceedings;
(c) Liens consisting of deposits or pledges made in the ordinary course
of business in connection with, or to secure payment of, obligations under
workers' compensation, unemployment insurance or similar legislation or
obligations (not to exceed $2,000,000) under customer service contracts;
(d) Liens constituting encumbrances in the nature of zoning
restrictions, easements and rights or restrictions of record on the use of real
property, which in the aggregate are not substantial in amount and which do not,
in any case, materially detract from the value of such property or impair the
use thereof in the ordinary conduct of business;
(e) Liens of the Administrative Agent for the benefit of the Agents and
the Lenders;
(f) Liens not otherwise permitted by this Section 10.3 and in existence
on the Closing Date and described on Schedule 10.3;
(g) Liens evidencing the interest of lessors with respect to Debt
permitted under Section 10.1(e); and
(h) Liens securing Debt permitted under Section 10.1(f); provided that
(i) such Liens shall be created substantially simultaneously with the
acquisition of the related Capital Asset, (ii) such Liens do not at any time
encumber any property other than the property financed by such Debt and (iii)
the aggregate outstanding principal amount of Debt secured by any such Lien
shall at no time exceed 100% of the original purchase price of such property at
the time it was acquired.
SECTION 10.4. Limitations on Loans, Advances, Investments and
Acquisitions. Purchase, own, invest in or otherwise acquire, directly or
indirectly, any capital stock, interests in any partnership or joint venture
(including without limitation the creation or capitalization of any Subsidiary),
evidence of Debt or other obligation or security, substantially all or a
material portion of the business or assets of any other Person or any other
investment or interest whatsoever in any other Person; or make or permit to
exist, directly or indirectly, any loans, advances or extensions of credit to,
or any investment in cash or by delivery of property in, any Person; or enter
into, directly or indirectly, any commitment or option in respect of the
foregoing except:
(a) (i) loans or advances by any Subsidiary of a Borrower to such
Borrower, (ii) advances from ACC to any Wholly-Owned Subsidiary or Controlled
Venture in an aggregate principal amount not to exceed $500,000, (iii) (A)
intercompany loans by ACC to ACC Canada in an aggregate principal amount not to
exceed $70,000,000, (B) intercompany loans by ACC to ACC U.K. in an aggregate
principal amount not to exceed $50,000,000, (C) intercompany loans or
investments in the form of capital contributions by ACC or by a Wholly-Owned
Subsidiary thereof to ACC Germany in an aggregate principal amount not to exceed
$10,000,000 and (D) intercompany loans by ACC to the Material Subsidiary created
as a result of the Versatel Acquisition in an aggregate principal amount not to
exceed $15,000,000; provided, that (x) such intercompany loans shall be
evidenced by promissory notes in form and substance acceptable to the Lenders
(each, an "Intercompany Note"), which notes shall be pledged to the Lenders and
shall be subordinated to the Credit Facility pursuant to the Intercompany
Subordination Agreement and (y) the Intercompany Note evidencing loans permitted
pursuant to Section 10.4(a)(iii)(D) above shall be secured by substantially all
of the assets of such Material Subsidiary pursuant to security documents
reasonably satisfactory to the Administrative Agent and the rights and remedies
of ACC thereunder shall be pledged to the Administrative Agent pursuant to the
Security Agreement and (iii) other existing loans, advances and investments in
existence on the Closing Date and described on Schedule 10.4; provided, that
notwithstanding the above, no further loans or advances shall be made by any
Borrower to Vista International Communications, Inc., until such time as it has
been joined as a Borrower pursuant to Section 8.15.
(b) investments by any Domestic Borrower or Domestic Subsidiary in (i)
marketable direct obligations issued or unconditionally guaranteed by the United
States of America or any agency thereof maturing within one (1) year from the
date of acquisition thereof, (ii) commercial paper maturing no more than 120
days from the date of creation thereof and currently having the highest rating
obtainable from either Standard & Poor's Ratings Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. or ▇▇▇▇▇'▇ Investors Service, Inc., (iii)
certificates of deposit maturing no more than 120 days from the date of creation
thereof issued by commercial banks incorporated under the laws of the United
States of America, each having combined capital, surplus and undivided profits
of not less than $500,000,000 and having a rating of "A" or better by
a nationally recognized rating agency; provided, that the aggregate amount
invested in such certificates of deposit shall not at any time exceed $5,000,000
for any one such certificate of deposit and $10,000,000 for any one such bank,
or (iv) time deposits maturing no more than 30 days from the date of creation
thereof with commercial banks or savings banks or savings and loan associations
each having membership either in the Federal Deposit Insurance Corporation
("FDIC") or the deposits of which are insured by the FDIC and in amounts not
exceeding the maximum amounts of insurance thereunder, and investments by any
Canadian Borrower or Canadian Subsidiary, by any U.K. Borrower or any U.K.
Subsidiary or by any German Borrower or German Subsidiary in any corresponding
government securities or cash equivalents reasonably satisfactory to the
Required Lenders;
(c) investments by ACC or any Subsidiary in the form of acquisitions of
all or substantially all of the business or a line of business (whether by the
acquisition of capital stock, assets or any combination thereof) of any other
Person, including any investment constituting a Controlled Venture; provided
that, (i) the Person to be acquired or invested in shall be a provider of long
distance telephone service or other business reasonably related to the provision
of long distance telephone or telecommunications service; (ii) a Borrower shall
be the surviving entity and all necessary documents required to be executed and
filed to evidence that any and all assets required hereunder to be pledged as
Collateral for the Obligations shall have been executed and filed; (iii) at
least fifteen (15) Business Days prior to the consummation of such acquisition,
an authorized officer of ACC shall deliver to the Administrative Agent a
certificate (except with respect to the U.S. Wats Acquisition) demonstrating to
the satisfaction of the Managing Agents that no Default or Event of Default
exists or shall be created by the consummation of such acquisition or
investment; (iv) a description of the acquisition (except with respect to the
Versatel Acquisition and the U.S. Wats Acquisition) and the governing
documentation (except with respect to the U.S. Wats Acquisition) shall have been
delivered to the Administrative Agent at least fifteen (15) Business Days prior
to the consummation of the acquisition; (v) any Subsidiary created pursuant
hereto and organized under the laws of Canada shall be a direct Subsidiary of
ACC Canada and (vi) if such acquisition or investment, if completed, would cause
the aggregate fair market value of the consideration of all such acquisitions or
investments completed during the period (commencing on the Closing Date) of four
consecutive fiscal quarters ending immediately prior to the date of
determination thereof to exceed $30,000,000 (excluding consideration for the
U.S. Wats Acquisition), the Required Lenders shall have consented in writing to
such acquisition or investment prior to the Closing Date.
(d) investments by ACC in any joint venture (other than a Controlled
Venture) not to exceed $5,000,000 with respect to any such individual joint
venture and $15,000,000 with respect to all such joint ventures during the term
of the Credit Facility without the prior written consent of the Required
Lenders; and
(e) loans to employees in the ordinary course of business for travel
and other advanced expenses not to exceed $50,000 with respect to any individual
employee or $500,000 in the aggregate.
SECTION 10.5. Limitations on Mergers and Liquidation. Merge,
consolidate, amalgamate or enter into any similar combination with any other
Person or liquidate, wind-up or dissolve itself (or suffer any liquidation or
dissolution) except (a) any Wholly-Owned Subsidiary of ACC which is not a
Borrower may be liquidated, wound-up or dissolved, (b) any Wholly-Owned
Subsidiary of ACC may merge with ACC or any other Wholly-Owned Subsidiary of ACC
which is a Borrower, as long as ACC or such Borrower, as applicable, is the
survivor of such merger and assumes all of the Obligations of the non-surviving
entity, (c) any Wholly-Owned Subsidiary may merge into the Person such
Wholly-Owned Subsidiary was formed to acquire in connection with an acquisition
permitted by Section 10.4(c) and (d) pursuant to any Change in Control which has
been approved pursuant to Section 14.11.
SECTION 10.6. Limitations on Sale of Assets. Convey, sell, lease,
assign, transfer or otherwise dispose of any of its property, business or assets
(including, without limitation, the sale of any receivables and leasehold
interests and any sale-leaseback or similar transaction), whether now owned or
hereafter acquired except:
(a) the sale of inventory in the ordinary course of business;
(b) the sale of obsolete assets no longer used or usable in the
business of ACC or any of its Subsidiaries;
(c) the sale or discount without recourse of accounts receivable
arising in the ordinary course of business in connection with the compromise or
collection thereof;
(d) the transfer of assets to any Borrower or any Wholly-Owned
Subsidiary of ACC pursuant to Section 10.5(b); and
(e) the sale of assets which generated less than 10% of Operating Cash
Flow in the four quarters immediately preceding such sale so long as no Default
or Event of Default is existing or would be created by such sale of assets.
SECTION 10.7. Limitations on Dividends and Distributions. Declare or
pay any dividends upon any of its capital stock; purchase, redeem, retire or
otherwise acquire, directly or indirectly, any shares of its capital stock, or
make any distribution of cash, property or assets among the holders of shares of
its capital stock, in each case without the prior written consent of the
Required Lenders; or make any material change in its capital structure that
could reasonably be expected to have a Material Adverse Effect; provided that
(a) any Borrower may pay dividends in shares of its own capital stock, (b) any
Subsidiary of a Borrower may pay dividends or make other distributions in
respect of its capital stock to such Borrower, (c) any Subsidiary of a Borrower
may make payments on any Debt or other obligation owed to such Borrower which
Debt or other obligation and such payment are permitted hereunder and any other
applicable Loan Document and (d) as long as no Default or Event of Default has
occurred and is continuing or would be created thereby, ACC stock owned by an
officer or employee of ACC may be repurchased in an aggregate amount not to
exceed $2,000,000 per calendar year.
SECTION 10.8. Limitations on Exchange and Issuance of Capital Stock.
Issue, sell or otherwise dispose of any class or series of capital stock that,
by its terms or by the terms of any security into which it is convertible or
exchangeable, is, or upon the happening of an event or passage of time would be,
(a) convertible or exchangeable into Debt or (b) required to be redeemed or
repurchased, including at the option of the holder, in whole or in part, or has,
or upon the happening of an event or passage of time would have, a redemption or
similar payment due, in any such case prior to ninety (90) days after the
Revolving Credit Termination Date.
SECTION 10.9. Transactions with Affiliates. Directly or indirectly: (a)
make any loan or advance to, or purchase or assume any note or other obligation
to or from, any of its officers, directors, shareholders or other Affiliates, or
to or from any member of the immediate family of any of its officers, directors,
shareholders or other Affiliates, or subcontract any operations to any of its
Affiliates, or (b) enter into, or be a party to, any transaction with any of its
Affiliates, except pursuant to the reasonable requirements of its business and
upon fair and reasonable terms that are fully disclosed to the Required Lenders
and are no less favorable to it than would obtain in a comparable arm's length
transaction with a Person not its Affiliate.
SECTION 10.10. Certain Accounting Changes. Change its Fiscal Year end,
or make any material change in its accounting treatment and reporting practices
except as required by GAAP.
SECTION 10.11. Amendments; Payments and Prepayments of Subordinated
Debt. Amend or modify (or permit the modification or amendment of) any of the
terms or provisions of any Subordinated Debt; or cancel or forgive, make any
voluntary or optional payment or prepayment on, or redeem or acquire for value
(including without limitation by way of depositing with any trustee with respect
thereto money or securities before due for the purpose of paying when due) any
Subordinated Debt.
SECTION 10.12. Restrictive Agreements. (a) Enter into any Debt which
contains any negative pledge on assets or any covenants materially more
restrictive than the provisions of Articles VIII, IX and X hereof, or which
restricts, limits or otherwise encumbers its ability to incur Liens on or with
respect to any of its assets or properties other than the assets or properties
securing such Debt, or (b) enter into or permit to exist any agreement which
impairs or limits the ability of any Subsidiary of a Borrower to pay dividends
to such Borrower, unless the Required Lenders shall have previously consented in
writing to such agreement.
SECTION 10.13. Hedging Agreements. Enter into any Hedging Agreements
except: (a) Hedging Agreements required by Section 8.13; (b) Hedging Agreements
executed by a Borrower regarding currency risk exposure in the ordinary course
of business with respect to intercompany loans and advances with durations not
to exceed the remaining duration of the Credit Facility; and (c) any other
Hedging Agreement with a counterparty and upon terms and conditions reasonably
satisfactory to the Managing Agents.
ARTICLE XI
UNCONDITIONAL GUARANTY
SECTION 11.1. Guaranty of Obligations. The Guarantor hereby
unconditionally guarantees to the Administrative Agent for the ratable benefit
of the Agents and the Lenders, and their respective successors, endorsees,
transferees and assigns, the prompt payment and performance of all Obligations
of the Borrowers (other than ACC), whether primary or secondary (whether by way
of endorsement or otherwise), whether now existing or hereafter arising, whether
or not from time to time reduced or extinguished (except by payment thereof) or
hereafter increased or incurred, whether or not recovery may be or hereafter
become barred by the statute of limitations, whether enforceable or
unenforceable as against any such Borrower, whether or not discharged, stayed or
otherwise affected by any bankruptcy, insolvency or other similar law or
proceeding, whether created directly with any Agent or Lender or acquired by any
Agent or Lender through assignment, endorsement or otherwise, whether matured or
unmatured, whether joint or several, as and when the same become due and payable
(whether at maturity or earlier, by reason of acceleration, mandatory repayment
or otherwise), in accordance with the terms of any such instruments evidencing
any such obligations, including all renewals, extensions or modifications
thereof (all Obligations of each such Borrower to any Agent or Lender, including
all of the foregoing, being hereinafter collectively referred to as the
"Guaranteed Obligations").
SECTION 11.2. Nature of Guaranty. The Guarantor agrees that this
Guaranty is a continuing, unconditional guaranty of payment and performance and
not of collection, and that its obligations under this Guaranty shall be
primary, absolute and unconditional, irrespective of, and unaffected by (a) the
genuineness, validity, regularity, enforceability or any future amendment of, or
change in, this Agreement or any other Loan Document or any other agreement,
document or instrument to which any such Borrower is or may become a party, (b)
the absence of any action to enforce this Guaranty, this Agreement or any other
Loan Document or the waiver or consent by the Administrative Agent or any Lender
with respect to any of the provisions of this Guaranty, this Agreement or any
other Loan Document, (c) the existence, value or condition of, or failure to
perfect its Lien against, any security for or other guaranty of the Guaranteed
Obligations or any action, or the absence of any action, by the Administrative
Agent or any Lender in respect of such security or guaranty (including, without
limitation, the release of any such security or guaranty) or (d) any other
action or circumstances which might otherwise constitute a legal or equitable
discharge or defense of a surety or guarantor; it being agreed by the Guarantor
that its obligations under this Guaranty shall not be discharged until the final
and indefeasible payment and performance, in full, of the Guaranteed Obligations
and the termination of the Commitments. The Guarantor expressly waives all
rights it may now or in the future have under any statute (including without
limitation North Carolina General Statutes Section 26-7, et seq. or similar
law), or at law or in equity, or otherwise, to compel the Administrative Agent
or any Lender to proceed in respect of the Guaranteed Obligations against any
such Borrower or any other party or against any security for or other guaranty
of the payment and performance of the Guaranteed Obligations before proceeding
against, or as a condition to proceeding against, the Guarantor. The Guarantor
further expressly waives and agrees not to assert or take advantage of any
defense based upon the failure of the Administrative Agent or any Lender to
commence an action in respect of the Guaranteed
Obligations against any such Borrower, the Guarantor or any other party or any
security for the payment and performance of the Guaranteed Obligations. The
Guarantor agrees that any notice or directive given at any time to the
Administrative Agent or any Lender which is inconsistent with the waivers in the
preceding two sentences shall be null and void and may be ignored by the
Administrative Agent or Lender, and, in addition, may not be pleaded or
introduced as evidence in any litigation relating to this Guaranty for the
reason that such pleading or introduction would be at variance with the written
terms of this Guaranty, unless the Administrative Agent and the Required Lenders
have specifically agreed otherwise in writing. The foregoing waivers are of the
essence of the transaction contemplated by the Loan Documents and, but for this
Guaranty and such waivers, the Agents and Lenders would decline to enter into
this Agreement.
SECTION 11.3. Demand by the Administrative Agent. In addition to the
terms set forth in Section 11.2, and in no manner imposing any limitation on
such terms, if all or any portion of the then outstanding Guaranteed Obligations
under this Agreement are declared to be immediately due and payable, then the
Guarantor shall, upon demand in writing therefor by the Administrative Agent to
the Guarantor, pay all or such portion of the outstanding Guaranteed Obligations
then declared due and payable. Payment by the Guarantor shall be made to the
Administrative Agent, to be credited and applied upon the Guaranteed
Obligations, in immediately available funds in the Permitted Currency in which
the relevant Guaranteed Obligations are denominated to an account designated by
the Administrative Agent or at the Administrative Agent's office or at any other
address that may be specified in writing from time to time by the Administrative
Agent.
SECTION 11.4. Waivers. In addition to the waivers contained in Section
11.2, the Guarantor waives, and agrees that it shall not at any time insist
upon, plead or in any manner whatever claim or take the benefit or advantage of,
any appraisal, valuation, stay, extension, marshalling of assets or redemption
laws, or exemption, whether now or at any time hereafter in force, which may
delay, prevent or otherwise affect the performance by the Guarantor of its
obligations under, or the enforcement by the Administrative Agent or the Lenders
of, this Guaranty. The Guarantor further hereby waives diligence, presentment,
demand, protest and notice of whatever kind or nature with respect to any of the
Guaranteed Obligations and waives the benefit of all provisions of law which are
or might be in conflict with the terms of this Guaranty. The Guarantor
represents, warrants and agrees that its obligations under this Guaranty are not
and shall not be subject to any counterclaims, offsets or defenses of any kind
against the Administrative Agent, the Lenders or any such Borrower whether now
existing or which may arise in the future.
SECTION 11.5. Modification of Loan Documents etc. If the Administrative
Agent or the Lenders shall at any time or from time to time, with or without the
consent of, or notice to, the Guarantor (a) change or extend the manner, place
or terms of payment of, or renew or alter all or any portion of, the Guaranteed
Obligations, (b) take any action under or in respect of the Loan Documents in
the exercise of any remedy, power or privilege contained therein or available to
it at law, in equity or otherwise, or waive or refrain from exercising any such
remedies, powers or privileges, (c) amend or modify, in any manner whatsoever,
the Loan Documents, (d) extend or waive the time for performance by the
Guarantor, any such Borrower or any other Person of, or
compliance with, any term, covenant or agreement on its part to be performed or
observed under a Loan Document (other than this Guaranty), or waive such
performance or compliance or consent to a failure of, or departure from, such
performance or compliance, (e) take and hold security or collateral for the
payment of the Guaranteed Obligations or sell, exchange, release, dispose of, or
otherwise deal with, any property pledged, mortgaged or conveyed, or in which
the Administrative Agent or the Lenders have been granted a Lien, to secure any
Debt of the Guarantor or any such Borrower to any Agent or the Lenders, (f)
release anyone who may be liable in any manner for the payment of any amounts
owed by the Guarantor or any such Borrower to any Agent or Lender, (g) modify or
terminate the terms of any intercreditor or subordination agreement pursuant to
which claims of other creditors of the Guarantor or any such Borrower are
subordinated to the claims of any Agent or Lender or (h) apply any sums by
whomever paid or however realized to any amounts owing by the Guarantor or any
such Borrower to any Agent or Lender on account of the Obligations in such
manner as the Administrative Agent or any Lender shall determine in its
reasonable discretion; then neither the Administrative Agent nor any Lender
shall incur any liability to the Guarantor as a result thereof, and no such
action shall impair or release the obligations of the Guarantor under this
Guaranty.
SECTION 11.6. Reinstatement. The Guarantor agrees that, if any payment
made by any such Borrower or any other Person applied to the Obligations is at
any time annulled, set aside, rescinded, invalidated, declared to be fraudulent
or preferential or otherwise required to be refunded or repaid, or the proceeds
of Collateral are required to be returned by any Agent or Lender to any such
Borrower, its estate, trustee, receiver or any other party, including, without
limitation, the Guarantor, under any Applicable Law or equitable cause, then, to
the extent of such payment or repayment, the Guarantor's liability hereunder
(and any Lien or Collateral securing such liability) shall be and remain in full
force and effect, as fully as if such payment had never been made, and, if prior
thereto, this Guaranty shall have been canceled or surrendered (and if any Lien
or Collateral securing the Guarantor's liability hereunder shall have been
released or terminated by virtue of such cancellation or surrender), this
Guaranty (and such Lien or Collateral) shall be reinstated in full force and
effect, and such prior cancellation or surrender shall not diminish, release,
discharge, impair or otherwise affect the obligations of the Guarantor in
respect of the amount of such payment (or any Lien or Collateral securing such
obligation).
SECTION 11.7. No Subrogation. Until all amounts owing to the Agents and
Lenders on account of the Obligations are paid in full and the Commitments are
terminated, the Guarantor hereby waives any claims or other rights which it may
now or hereafter acquire against any such Borrower that arise from the existence
or performance of the Guarantor's obligations under this Guaranty, including,
without limitation, any right of subrogation, reimbursement, exoneration,
indemnification, any right to participate in any claim or remedy of the
Administrative Agent or the Lenders against any such Borrower or any Collateral
which the Administrative Agent or the Lenders now have or may hereafter acquire,
whether or not such claim, remedy or right arises in equity or under contract,
statute or common law, by any payment made hereunder or otherwise, including
without limitation, the right to take or receive from any such Borrower,
directly or indirectly, in cash or other property or by set-off or in any other
manner, payment or security on account of such claim or other rights. If any
amount shall be paid to the Guarantor on account of such rights at any time when
all of the Obligations shall not have been paid in full, such amount
shall be held by the Guarantor in trust for the Administrative Agent, segregated
from other funds of the Guarantor, and shall, forthwith upon receipt by the
Guarantor, be turned over to the Administrative Agent in the exact form received
by the Guarantor (duly indorsed by the Guarantor to the Administrative Agent, if
required) to be applied against the Obligations, whether matured or unmatured,
in such order as set forth herein.
ARTICLE XII
DEFAULT AND REMEDIES
SECTION 12.1. Events of Default. Each of the following shall constitute
an Event of Default, whatever the reason for such event and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment or order of any court or any order, rule or regulation of any
Governmental Authority or otherwise:
(a) Default in Payment of Principal of Loans and Reimbursement
Obligations. Any Borrower shall default in any payment of principal of any Loan,
Note or Reimbursement Obligation when and as due (whether at maturity, by reason
of acceleration or otherwise);
(b) Other Payment Default. Any Borrower shall default in the payment
when and as due (whether at maturity, by reason of acceleration or otherwise) of
interest on any Loan, Note or Reimbursement Obligation or the payment of any
other Obligation, and such default shall continue unremedied for five (5)
Business Days;
(c) Misrepresentation. Any representation or warranty made or deemed to
be made by any Borrower or any of its Subsidiaries under this Agreement, any
Loan Document or any amendment hereto or thereto, shall at any time prove to
have been incorrect or misleading in any material respect when made or deemed
made;
(d) Default in Performance of Certain Covenants. Any Borrower shall
default in the performance or observance of any covenant or agreement contained
in Sections 7.5(e), 8.12 or 8.15 or Articles IX or X of this Agreement;
(e) Default in Performance of Other Covenants and Conditions. Any
Borrower or Subsidiary thereof shall default in the performance or observance of
any term, covenant, condition or agreement contained in this Agreement (other
than as specifically provided for otherwise in this Section 12.1) or any other
Loan Document and such default shall continue for a period of thirty (30) days
after written notice thereof has been given to such Borrower by the
Administrative Agent;
(f) Hedging Agreement. Any termination payment shall be due by a
Borrower under any Hedging Agreement and such amount is not paid within ten (10)
Business Days of the due date thereof;
(g) Debt Cross-Default. ACC or any of its Subsidiaries shall (i)
default in the payment of any Debt (other than the Notes or any Reimbursement
Obligation) the aggregate outstanding amount of which Debt is in excess of
$1,000,000 (or the equivalent thereof in any foreign currency) beyond the period
of grace if any, provided in the instrument or agreement under which such Debt
was created; or (ii) default in the observance or performance of any other
agreement or condition relating to any Debt (other than the Notes or any
Reimbursement Obligation) the aggregate outstanding amount of which Debt is in
excess of $1,000,000 (or the equivalent thereof in any foreign currency) or
contained in any instrument or agreement evidencing, securing or relating
thereto or any other event shall occur or condition exist, the effect of which
default or other event or condition is to cause, or to permit the holder or
holders of such Debt (or a trustee or agent on behalf of such holder or holders)
to cause, with the giving of notice if required, any such Debt to become due
prior to its stated maturity (any applicable grace period having expired);
(h) Other Cross-Defaults. ACC or any of its Subsidiaries shall default
in the payment when due, or in the performance or observance, of any obligation
or condition of any Material Contract, or any Material Contract shall be
terminated, the breach or termination of which could reasonably be expected to
have a Material Adverse Effect unless, with respect to any such default, but
only as long as, the existence of any such default is being contested by ACC or
such Subsidiary in good faith by appropriate proceedings and adequate reserves
in respect thereof have been established on the books of ACC or such Subsidiary
to the extent required by GAAP;
(i) Change in Control. Any person or group of persons (within the
meaning of Section 13(d) of the Securities Exchange Act of 1934, as amended)
other than current management thereof, shall obtain ownership or control in one
or more series of transactions of more than twenty percent (20%) of the common
stock or twenty percent (20%) of the voting power of ACC entitled to vote in the
election of members of the board of directors of ACC or there shall have
occurred under any indenture or other instrument evidencing any Debt in excess
of $1,000,000 (or the equivalent thereof in any foreign currency) any "change in
control" (as defined in such indenture or other evidence of Debt) obligating ACC
to repurchase, redeem or repay all or any part of the Debt or capital stock
provided for therein (any such event, a "Change in Control");
(j) Voluntary Bankruptcy Proceeding. Any Borrower or Subsidiary thereof
shall (i) commence a voluntary case under the federal bankruptcy laws (as now or
hereafter in effect); (ii) file a petition or proposal or commence any other
proceeding seeking to take advantage of any other laws, domestic or foreign,
relating to bankruptcy, insolvency, reorganization, winding up or composition
for adjustment of debts; (iii) consent to or fail to contest within sixty (60)
days of the filing thereof any petition filed or proceeding commenced against it
in an involuntary case under such bankruptcy laws or other laws; (iv) apply for
or consent to, or fail to contest in a timely and appropriate manner, the
appointment of, or the taking of possession by, a receiver, administrator,
custodian, trustee, or liquidator of itself or of a substantial part of its
property, domestic or foreign; (v) admit in writing its inability to pay its
debts as they become due; (vi) make a general assignment for the benefit of
creditors; or (vii) take any corporate action for the purpose of authorizing any
of the foregoing;
(k) Involuntary Bankruptcy Proceeding. A case, petition or other
proceeding shall be commenced against any Borrower or Subsidiary thereof in any
court of competent jurisdiction seeking (i) relief under the federal bankruptcy
laws (as now or hereafter in effect) or under any other laws, domestic or
foreign, relating to bankruptcy, insolvency, reorganization, winding up or
adjustment of debts; or (ii) the appointment of a trustee, receiver,
administrator, custodian, liquidator or the like for any Borrower or Subsidiary
thereof or for all or any substantial part of their respective assets, domestic
or foreign, and such case or proceeding shall continue, without dismissal or
stay, for a period of sixty (60) consecutive calendar days, or an order granting
the relief requested in such case, petition or proceeding (including, but not
limited to, an order for relief under such federal bankruptcy laws or other
laws) shall be entered;
(l) Failure of Agreements. Any material provision of this Agreement or
of any other Loan Document shall for any reason cease to be valid and binding on
any Borrower or Subsidiary thereof or any such Person shall so state in writing,
or this Agreement or any other Loan Document shall for any reason cease to
create a valid and perfected first priority Lien on, or security interest in,
any of the Collateral purported to be covered thereby, in each case other than
in accordance with the express terms hereof or thereof;
(m) Termination Event. The occurrence of any of the following events:
(i) ACC or any ERISA Affiliate fails to make full payment when due of all
amounts which, under the provisions of any Pension Plan or Section 412 of the
Code, ACC or any ERISA Affiliate is required to pay as contributions thereto;
(ii) an accumulated funding deficiency in excess of $1,000,000 occurs or exists,
whether or not waived, with respect to any Pension Plan; (iii) a Termination
Event; (iv) a Canadian Termination Event; or (v) ACC or any ERISA Affiliate as
employers under one or more Multiemployer Plan makes a complete or partial
withdrawal from any such Multiemployer Plan and the plan sponsor of such
Multiemployer Plans notifies such withdrawing employer that such employer has
incurred a withdrawal liability requiring payments in an amount exceeding
$1,000,000;
(n) Judgment. A judgment or order for the payment of money which causes
the aggregate amount of all such judgments to exceed $1,000,000 or the
Alternative Currency Amount thereof in any Fiscal Year shall be entered against
ACC or any of its Subsidiaries by any court and such judgment or order shall
continue, without discharge or stay, for a period of thirty (30) days;
(o) Loss of License. Any Communications License, PUC Authorization of
ACC or any Subsidiary thereof shall expire, terminate, be canceled or otherwise
lost or any application therefor be rejected, which event could reasonably be
expected to have a Material Adverse Effect;
SECTION 12.2. Remedies. Upon the occurrence of an Event of Default,
with the consent of the Required Lenders, the Administrative Agent may, or upon
the request of the Required Lenders, the Administrative Agent shall, by notice
to the Borrowers:
(a) Acceleration; Termination of Facilities. Declare the principal of
and interest on the Loans, the Notes and the Reimbursement Obligations at the
time outstanding, and all other amounts owed to the Lenders and to the Agents
under this Agreement or any of the other Loan
Documents (including, without limitation, all L/C Obligations, whether or not
the beneficiaries of the then outstanding Letters of Credit shall have presented
the documents required thereunder) and all other Obligations, to be forthwith
due and payable, whereupon the same shall immediately become due and payable
without presentment, demand, protest or other notice of any kind, all of which
are expressly waived, anything in this Agreement or the other Loan Documents to
the contrary notwithstanding, and terminate the Credit Facility and any right of
the Borrowers to request borrowings or Letters of Credit thereunder; provided,
that upon the occurrence of an Event of Default specified in Section 12.1(j) or
(k), the Credit Facility shall be automatically terminated and all Obligations
shall automatically become due and payable.
(b) Letters of Credit. With respect to all Letters of Credit with
respect to which presentment for honor shall not have occurred at the time of an
acceleration pursuant to the preceding paragraph, require the Borrowers at such
time to deposit in a cash collateral account opened by the Administrative Agent
an amount equal to the aggregate L/C Obligations. Amounts held in such cash
collateral account shall be applied by the Administrative Agent to the payment
of drafts drawn under such Letters of Credit, and the unused portion thereof
after all such Letters of Credit shall have expired or been fully drawn upon, if
any, shall be applied to repay the other Obligations. After all such Letters of
Credit shall have expired or been fully drawn upon, the Reimbursement Obligation
shall have been satisfied and all other Obligations shall have been paid in
full, the balance, if any, in such cash collateral account shall be returned to
such Borrower or such other Person that may be entitled thereto.
(c) Rights of Collection. Exercise on behalf of the Lenders all of its
other rights and remedies under this Agreement, the other Loan Documents and
Applicable Law, in order to satisfy all of the Borrowers' Obligations.
SECTION 12.3. Rights and Remedies Cumulative; Non-Waiver; etc. The
enumeration of the rights and remedies of the Agents and the Lenders set forth
in this Agreement is not intended to be exhaustive and the exercise by the
Agents and the Lenders of any right or remedy shall not preclude the exercise of
any other rights or remedies, all of which shall be cumulative, and shall be in
addition to any other right or remedy given hereunder or under the Loan
Documents or that may now or hereafter exist in law or in equity or by suit or
otherwise. No delay or failure to take action on the part of any Agent or Lender
in exercising any right, power or privilege shall operate as a waiver thereof,
nor shall any single or partial exercise of any such right, power or privilege
preclude other or further exercise thereof or the exercise of any other right,
power or privilege or shall be construed to be a waiver of any Event of Default.
No course of dealing between the Borrowers, the Agents and the Lenders or their
respective agents or employees shall be effective to change, modify or discharge
any provision of this Agreement or any of the other Loan Documents or to
constitute a waiver of any Event of Default. In addition, any election of
remedies which results in the denial or impairment of the right of the
Administrative Agent to seek a deficiency judgment against any Borrower referred
to in Section 11.1 shall not impair the Guarantor's obligation to pay the full
amount of the Guaranteed Obligations.
SECTION 12.4. Consents. The Borrowers acknowledge that certain
transactions contemplated by this Agreement and the other Loan Documents and
certain actions which may be taken by the Agents or the Lenders in the exercise
of their respective rights under this Agreement and the other Loan Documents may
require the consent of a Governmental Authority. If counsel to any Agent
reasonably determines that the consent of a Governmental Authority is required
in connection with the execution, delivery and performance of any of the
aforesaid documents or any documents delivered to the Agents or the Lenders in
connection therewith or as a result of any action which may be taken pursuant
thereto, then the Borrowers, at their sole cost and expense, agree to use their
best efforts to secure such consent and to cooperate with the Agents and the
Lenders in any action commenced by any Agent or Lender to secure such consent.
SECTION 12.5. Judgment Currency. The obligation of the Borrowers to
make payments of the principal of and interest on the Notes and the obligation
of the Guarantor to make payments on the Guaranteed Obligations and the
obligation of any such Person to make payments of any other amounts payable
hereunder or pursuant to any other Loan Document in the currency specified for
such payment shall not be discharged or satisfied by any tender, or any recovery
pursuant to any judgment, which is expressed in or converted into any other
currency, except to the extent that such tender or recovery shall result in the
actual receipt by each of the Administrative Agent and Lenders of the full
amount of the particular Permitted Currency expressed to be payable pursuant to
the applicable Loan Document. The Administrative Agent shall, using all amounts
obtained or received from the Borrowers pursuant to any such tender or recovery
in payment of principal of and interest on the Obligations, promptly purchase
the applicable Permitted Currency at the most favorable spot exchange rate
determined by the Administrative Agent to be available to it. The obligation of
the Borrowers to make payments in the applicable Permitted Currency shall be
enforceable as an alternative or additional cause of action solely for the
purpose of recovering in the applicable Permitted Currency the amount, if any,
by which such actual receipt shall fall short of the full amount of the
Permitted Currency expressed to be payable pursuant to the applicable Loan
Document.
SECTION 12.6. Adjustments. If any Lender (a "Benefitted Lender") shall
at any time receive any payment of all or part of its Extensions of Credit, or
interest thereon, or if any Lender shall at any time receive any Collateral in
respect to its Extensions of Credit (whether voluntarily or involuntarily, by
set-off or otherwise) in a greater proportion than any such payment to and
Collateral received by any other Lender, if any, in respect of such other
Lender's Loans or other Extensions of Credit, or interest thereon, such
Benefitted Lender shall purchase for cash from the other Lenders such portion of
each such other Lender's Extensions of Credit, or shall provide such other
Lenders with the benefits of any such Collateral, or the proceeds thereof, as
shall be necessary to cause such Benefitted Lender to share the excess payment
or benefits of such Collateral or proceeds ratably with each of the Lenders;
provided, that if all or any portion of such excess payment or benefits is
thereafter recovered from such Benefitted Lender, such purchase shall be
rescinded, and the purchase price and benefits returned to the extent of such
recovery, but without interest. The Borrowers agree that each Lender so
purchasing a portion of another Lender's Extensions of Credit may exercise all
rights of payment (including, without limitation, rights of set-off) with
respect to such portion as fully as if such Lender were the direct holder of
such portion.
ARTICLE XIII
THE AGENTS
SECTION 13.1 Appointment. Each of the Lenders hereby irrevocably
designates and appoints First Union as Administrative Agent and Managing Agent
of such Lender and Fleet as Managing Agent and Documentation Agent of such
Lender under this Agreement and the other Loan Documents and each such Lender
irrevocably authorizes First Union as Administrative Agent and Managing Agent
and Fleet as Managing Agent and Documentation Agent, respectively, for such
Lender, to take such action on its behalf under the provisions of this Agreement
and the other Loan Documents and to exercise such powers and perform such duties
as are expressly delegated to each such Agent by the terms of this Agreement and
such other Loan Documents, together with such other powers as are reasonably
incidental thereto. Notwithstanding any provision to the contrary elsewhere in
this Agreement or such other Loan Documents, none of the Agents shall have any
duties or responsibilities, except those expressly set forth herein and therein,
or any fiduciary relationship with any Lender, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be read
into this Agreement or the other Loan Documents or otherwise exist against such
Agent. To the extent any provision of this Agreement permits action by any
Agent, such Agent shall, subject to the provisions of Section 13.11 hereof and
of this Article XII, take such action if directed in writing to do so by the
Required Lenders.
SECTION 13.2. Delegation of Duties. Each of the Agents may execute any
of its respective duties under this Agreement and the other Loan Documents by or
through agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. No Agent shall be responsible
for the negligence or misconduct of any agents or attorneys-in-fact selected by
such Agent with reasonable care.
SECTION 13.3. Exculpatory Provisions. Neither any Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact, Subsidiaries or
Affiliates shall be (a) liable for any action lawfully taken or omitted to be
taken by it or such Person under or in connection with this Agreement or the
other Loan Documents (except for its or such Person's own gross negligence or
willful misconduct), or (b) responsible in any manner to any of the Lenders for
any recitals, statements, representations or warranties made by the Borrowers or
any of their Subsidiaries or any officer thereof contained in this Agreement or
the other Loan Documents or in any certificate, report, statement or other
document referred to or provided for in, or received by such Agent under or in
connection with, this Agreement or the other Loan Documents or for the value,
validity, effectiveness, genuineness, enforceability or sufficiency of this
Agreement or the other Loan Documents or for any failure of the Borrowers or any
of their Subsidiaries to perform its obligations hereunder or thereunder. No
Agent shall be under any obligation to any Lender to ascertain or to inquire as
to the observance or performance of any of the agreements contained in, or
conditions of, this Agreement, or to inspect the properties, books or records of
the Borrowers or any of their Subsidiaries.
SECTION 13.4. Reliance by Agents. Each of the Agents shall be entitled
to rely, and shall be fully protected in relying, upon any note, writing,
resolution, notice, consent, certificate, affidavit, letter, cablegram,
telegram, telecopy, telex or teletype message, statement, order or other
document or conversation believed by it to be genuine and correct and to have
been signed, sent or made by the proper Person or Persons and upon advice and
statements of legal counsel (including, without limitation, counsel to the
Borrowers), independent accountants and other experts selected by any Agent.
Each of the Agents may deem and treat the payee of any Note as the owner thereof
for all purposes unless such Note shall have been transferred in accordance with
Section 14.10 hereof. Each of the Agents shall be fully justified in failing or
refusing to take any action under this Agreement and the other Loan Documents
unless it shall first receive such advice or concurrence of the Required Lenders
(or, when expressly required hereby or by the relevant other Loan Document, all
the Lenders) as it deems appropriate or it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense which may
be incurred by it by reason of taking or continuing to take any such action
except for its own gross negligence or willful misconduct. Each of the Agents
shall in all cases be fully protected in acting, or in refraining from acting,
under this Agreement and the Notes in accordance with a request of the Required
Lenders (or, when expressly required hereby, all the Lenders), and such request
and any action taken or failure to act pursuant thereto shall be binding upon
all the Lenders and all future holders of the Notes.
SECTION 13.5. Notice of Default. None of the Agents shall be deemed to
have knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless it has received notice from a Lender or a Borrower referring to
this Agreement, describing such Default or Event of Default and stating that
such notice is a "notice of default". In the event that any Agent receives such
a notice, it shall promptly give notice thereof to the Administrative Agent who
shall promptly give notice thereof to the Lenders. The Administrative Agent
shall take such action with respect to such Default or Event of Default as shall
be reasonably directed by the Required Lenders; provided that unless and until
the Administrative Agent shall have received such directions, the Administrative
Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Default or Event of
Default as it shall deem advisable in the best interests of the Lenders.
SECTION 13.6. Non-Reliance on Such Agents and Other Lenders. Each
Lender expressly acknowledges that none of the Agents nor any of their
respective officers, directors, employees, agents, attorneys-in-fact,
Subsidiaries or Affiliates has made any representations or warranties to it and
that no act by any Agent hereinafter taken, including any review of the affairs
of the Borrowers or any of its Subsidiaries, shall be deemed to constitute any
representation or warranty by such Agent to any Lender. Each Lender represents
to the Agents that it has, independently and without reliance upon the Agents or
any other Lender, and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business,
operations, property, financial and other condition and creditworthiness of the
Borrowers and their Subsidiaries and made its own decision to make its Loans and
issue or participate in Letters of Credit hereunder and enter into this
Agreement. Each Lender also represents that it will, independently and without
reliance upon any Agent or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement and the other Loan Documents, and to make such investigation as
it deems necessary to inform itself as to the business, operations, property,
financial and other condition and creditworthiness of the Borrowers and their
Subsidiaries. Except for notices, reports and other documents expressly required
to be furnished to the Lenders by any Agent hereunder or by the other Loan
Documents, no Agent shall have any duty or responsibility to provide any Lender
with any credit or other information concerning the business, operations,
property, financial and other condition or creditworthiness of the Borrowers or
any of their Subsidiaries which may come into the possession of such Agent or
any of its respective officers, directors, employees, agents, attorneys-in-fact,
Subsidiaries or Affiliates.
SECTION 13.7. Indemnification. The Lenders agree to indemnify the
Administrative Agent and the Managing Agents in their capacities as such and (to
the extent not reimbursed by the Borrowers and without limiting the obligation
of the Borrowers to do so), ratably according to the respective amounts of the
Obligations then owing them, from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind whatsoever which may at any time
(including, without limitation, at any time following the payment of the Notes
or any Reimbursement Obligation) be imposed on, incurred by or asserted against
any such Agent in any way relating to or arising out of this Agreement or the
other Loan Documents, or any documents contemplated by or referred to herein or
therein or the transactions contemplated hereby or thereby or any action taken
or omitted by such Agent under or in connection with any of the foregoing;
provided that no Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting solely from such Agent's bad faith,
gross negligence or willful misconduct. The agreements in this Section 13.7
shall survive the payment of the Notes, any Reimbursement Obligation and all
other amounts payable hereunder and the termination of this Agreement.
SECTION 13.8. Each of the Agents in Its Individual Capacity. Each Agent
and its respective Subsidiaries and Affiliates may make loans to, accept
deposits from and generally engage in any kind of business with each Borrower as
though such Agent were not an Agent hereunder. With respect to any Loans made or
renewed by it and any Note issued to it, and with respect to any Letter of
Credit issued by it or participated in by it, each Agent shall have the same
rights and powers under this Agreement and the other Loan Documents as any
Lender and may exercise the same as though it were not an Agent, and the terms
"Lender" and "Lenders" shall include the Administrative Agents and the Managing
Agents in their individual capacity.
SECTION 13.9. Resignation of Agents; Successor Agents. Each Managing
Agent may resign as such Agent at any time by giving notice thereof to the
Lenders and the Borrowers. If both Managing Agents have resigned, the
Administrative Agent shall serve as a Managing Agent hereunder. Subject to the
appointment and acceptance of a successor as provided below, the Administrative
Agent may resign at any time by giving notice thereof to the Lenders and the
Borrowers. Upon any such resignation, the Required Lenders shall have the right
to appoint a successor Administrative Agent which successor shall have minimum
capital and surplus of at least $500,000,000 and be consented to by the
Borrowers, such consent not to be unreasonably withheld. If no successor
Administrative Agent shall have been so appointed by the Required Lenders and
shall have accepted such appointment within thirty (30) days after the retiring
Administrative Agent's giving of notice of resignation, then the retiring
Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent, which successor shall have minimum capital and surplus of
at least $500,000,000. Upon the acceptance of any appointment as Administrative
Agent hereunder by a successor Administrative Agent such successor
Administrative Agent shall thereupon succeed to and become vested with all
rights, powers, privileges and duties of the retiring Administrative Agent, and
the retiring Administrative Agent shall be discharged from its duties and
obligations hereunder. After any retiring Administrative Agent's resignation or
removal hereunder as Administrative Agent the provisions
of this Section 13.9 shall continue in effect for its benefit in respect of any
actions taken or omitted to be taken by it while it was acting as Administrative
Agent.
SECTION 13.10 Documentation Agent. The Documentation Agent, in its
capacity as documentation agent, shall have no duties or responsibilities and no
liabilities under this Agreement or any other Loan Document.
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1. Notices.
(a) Method of Communication. Except as otherwise provided in this
Agreement, all notices and communications hereunder shall be in writing, or by
telephone subsequently confirmed in writing. Any notice shall be effective if
delivered by hand delivery or sent via telecopy, recognized overnight courier
service or certified mail, return receipt requested, and shall be presumed to be
received by a party hereto (i) on the date of delivery if delivered by hand or
sent by telecopy, (ii) on the next Business Day if sent by recognized overnight
courier service and (iii) on the third Business Day following the date sent by
certified mail, return receipt requested. A telephonic notice to any Agent as
understood by such Agent will be deemed to be the controlling and proper notice
in the event of a discrepancy with or failure to receive a confirming written
notice.
(b) Addresses for Notices. Notices to any party shall be sent to it at
the following addresses, or any other address as to which all the other parties
are notified in writing.
If to any Borrower: ACC Corp.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
Executive Vice President
and Chief Financial Officer
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
With copies to: Nixon, Hargrave, Devans & ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇ III, Esq.
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to First Union as First Union National Bank
Administrative Agent ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇-▇▇
or Managing Agent: ▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Syndication Agency Services
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to Fleet Fleet National Bank
as Managing Agent ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ MABOF10C
or Documentation ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Agent: Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to any Lender: The Address set forth on Schedule 1.1
(c) Administrative Agent's Office. The Administrative Agent hereby
designates its office located at the address set forth above, or any subsequent
office which shall have been specified for such purpose by written notice to the
Borrowers and Lenders, as the Administrative Agent's Office referred to herein,
to which payments due are to be made and at which Revolving Credit Loans will be
disbursed and Letters of Credit issued.
SECTION 14.2. Expenses. (a) The Borrowers will pay all reasonable
out-of-pocket expenses of (i) the Managing Agents in connection with the
preparation, execution and delivery of this Agreement and each of the other Loan
Documents, whenever the same shall be executed and delivered, including all
out-of-pocket syndication and due diligence expenses, appraiser's fees, search
fees, title insurance premiums, recording fees, taxes and reasonable fees and
disbursements of counsel, including foreign counsel, for the Managing Agents;
(ii) the Managing Agents in connection with the preparation, execution and
delivery of any waiver, amendment or consent by the Agents or the Lenders
relating to this Agreement or any of the other Loan Documents including
reasonable fees and disbursements of counsel, including foreign counsel, for
such Agents, search fees, appraiser's fees, recording fees and taxes imposed in
connection therewith; and (iii) the Managing Agents in connection with
administering and enforcing their respective rights under the Credit Facility,
including consulting with one or more Persons, including appraisers,
accountants, engineers and attorneys, including foreign attorneys, concerning or
related to the nature, scope or value of any right or remedy of any Agent or any
of the Lenders hereunder or under any of the other Loan Documents, including any
review of factual matters in connection therewith, which expenses shall include
the reasonable fees and disbursements of such Persons.
(b) The Guarantor agrees that it will reimburse each Agent and Lender
for all expenses (including reasonable attorneys fees and expenses) incurred by
each Agent or Lender in connection with the obligations of the Guarantor under
the Guaranty and any other Loan
Documents and all expenses (including reasonable attorneys fees and expenses)
incurred by the Administrative Agent, any Agent or any Lender in connection with
the enforcement of the Guaranty.
SECTION 14.3. Set-off. In addition to any rights now or hereafter
granted under Applicable Law and not by way of limitation of any such rights,
upon and after the occurrence of any Event of Default and during the continuance
thereof, the Lenders and any assignee or participant of a Lender in accordance
with Section 14.10 are hereby authorized by the Borrowers at any time or from
time to time, without notice to the Borrowers or to any other Person, any such
notice being hereby expressly waived, to set off and to appropriate and to apply
any and all deposits (general or special, time or demand, including, but not
limited to, indebtedness evidenced by certificates of deposit, whether matured
or unmatured, excluding government securities required by Applicable Law to be
held as security for worker's compensation and similar claims) and any other
indebtedness at any time held or owing by the Lenders, or any such assignee or
participant to or for the credit or the account of a Borrower against and on
account of the Obligations of such Borrower irrespective of whether or not (a)
the Lenders shall have made any demand under this Agreement or any of the other
Loan Documents or (b) the Administrative Agent shall have declared any or all of
the Obligations to be due and payable as permitted by Section 12.2 and although
such Obligations shall be contingent or unmatured.
SECTION 14.4. Governing Law. This Agreement, the Notes and the other
Loan Documents, unless otherwise expressly set forth therein, shall be governed
by, construed and enforced in accordance with the laws of the State of North
Carolina, without reference to the conflicts or choice of law principles
thereof.
SECTION 14.5. Consent to Jurisdiction. The Borrowers hereby irrevocably
consent to the personal jurisdiction of the state and federal courts located in
Mecklenburg County, North Carolina, in any action, claim or other proceeding
arising out of any dispute in connection with this Agreement, the Notes and the
other Loan Documents, any rights or obligations hereunder or thereunder, or the
performance of such rights and obligations. The Borrowers hereby irrevocably
consent to the service of a summons and complaint and other process in any
action, claim or proceeding brought by any Agent or Lender in connection with
this Agreement, the Notes or the other Loan Documents, any rights or obligations
hereunder or thereunder, or the performance of such rights and obligations, on
behalf of itself or its property, in the manner specified in Section 14.1.
Nothing in this Section 14.5 shall affect the right of any Agent or Lender to
serve legal process in any other manner permitted by Applicable Law or affect
the right of any Agent or Lender to bring any action or proceeding against any
Borrower or its properties in the courts of any other jurisdictions.
SECTION 14.6. Binding Arbitration; Waiver of Jury Trial.
(a) Binding Arbitration. If in the reasonable determination of the
Administrative Agent and its counsel, Section 14.6(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 the Notes or any other Loan Documents
("Dispute"), between or among parties to the Notes or any other Loan Document
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 Loan
Documents executed in the future, or claims concerning any aspect of the past,
present or future relationships arising out of or connected with the Loan
Documents. Arbitration shall be conducted under and governed by the Commercial
Financial Disputes Arbitration Rules (the "Arbitration Rules") of the American
Arbitration Association, modified to incorporate the discovery rights contained
in the Federal Rules of Civil Procedure 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. Notwithstanding the foregoing, this paragraph shall not apply to
any Hedging Agreement that is a Loan Document.
(b) Jury Trial. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH AGENT,
LENDER AND EACH BORROWER HEREBY IRREVOCABLY WAIVE THEIR RESPECTIVE RIGHTS TO A
JURY TRIAL WITH RESPECT TO ANY ACTION, CLAIM OR OTHER PROCEEDING ARISING OUT OF
ANY DISPUTE IN CONNECTION WITH THIS AGREEMENT, THE NOTES OR THE OTHER LOAN
DOCUMENTS, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THEREUNDER, OR THE PERFORMANCE
OF SUCH RIGHTS AND OBLIGATIONS.
(c) Preservation of Certain Remedies. Notwithstanding the preceding
binding arbitration provisions, the parties hereto and the other Loan Documents
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 or otherwise realize against any real or
personal property or other security by exercising a power of sale or other
remedies against such property or security provided for in the Loan Documents 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.
SECTION 14.7. Reversal of Payments. To the extent any Borrower makes a
payment or payments to the Administrative Agent or other Agent for the ratable
benefit of the Lenders (or the other Agents) or the Administrative Agent or
other Agent receives any payment or proceeds of the Collateral which payments or
proceeds or any part thereof are subsequently invalidated, declared to be
fraudulent or preferential, set aside and/or required to be repaid to a trustee,
receiver or any other party under any bankruptcy law, state, provincial or
federal law, common law or equitable cause, then, to the extent of such payment
or proceeds repaid, the Obligations or part thereof intended to be satisfied
shall be revived and continued in full force and effect as if such payment or
proceeds had not been received by any Agent.
SECTION 14.8. Injunctive Relief. The Borrowers recognize that, in the
event the Borrowers fail to perform, observe or discharge any of their
obligations or liabilities under this Agreement, any remedy of law may prove to
be inadequate relief to the Lenders. Therefore, the Borrowers agree that the
Lenders, at the Lenders' option, shall be entitled to temporary and permanent
injunctive relief in any such case without the necessity of proving actual
damages.
SECTION 14.9. Accounting Matters. All financial and accounting
calculations, measurements and computations made for any purpose relating to
this Agreement, including, without limitation, all computations utilized by ACC
or any Subsidiary thereof to determine compliance with any covenant contained
herein, shall, except as otherwise expressly contemplated hereby or unless there
is an express written direction by the Administrative Agent to the contrary
agreed to by the Borrowers, be performed in accordance with GAAP. In the event
that changes in GAAP shall be mandated by the Financial Accounting Standards
Board, or any similar accounting body of comparable standing, or shall be
recommended by ACC's certified public accountants, to the extent that such
changes would modify such accounting terms or the interpretation or computation
thereof, such changes shall be followed in defining such accounting terms only
from and after the date the Credit and the Lenders shall have amended this
Agreement to the extent necessary to reflect any such changes in the financial
covenants and other terms and conditions of this Agreement.
SECTION 14.10. Successors and Assigns; Participations.
(a) Benefit of Agreement. This Agreement shall be binding upon and
inure to the benefit of the Borrowers, each Agent and the Lenders, all future
holders of the Notes, and their respective successors and assigns, except that
no Borrower shall assign or transfer any of its rights or obligations under this
Agreement without the prior written consent of each Lender (except pursuant to
any transaction permitted pursuant to Section 10.5 hereof or as a result of a
Change in Control which has been approved pursuant to Section 14.11). Nothing
set forth in the Guaranty shall impair, as between the Borrowers, the Agents and
the Lenders, the obligations of the Borrowers hereunder and under the other Loan
Documents.
(b) Assignment by Lenders. Each Lender may, with the consent of the
Administrative Agent and (unless an Event of Default has occurred and is
continuing) the Borrowers, which consents shall not be unreasonably withheld,
assign to one or more Eligible Assignees all or a portion of its interests,
rights and obligations under this Agreement (including, without limitation,
all or a portion of the Extensions of Credit at the time owing to it and the
Notes held by it); provided that:
(i) each such assignment shall be of a constant, and not a
varying, percentage of all the assigning Lender's rights and
obligations under this Agreement;
(ii) the Commitment so assigned shall not be less than the lesser
of (i) $5,000,000 or (ii) an amount equal to the entire Commitment of
the assigning Lender at the time of such assignment;
(iii) the parties to each such assignment shall execute and deliver
to the Administrative Agent, for its acceptance and recording in the
Register, an Assignment and Acceptance in the form of Exhibit G
attached hereto (an "Assignment and Acceptance"), together with any
Note or Notes subject to such assignment;
(iv) such assignment shall not, without the consent of the
applicable Borrower, require such Borrower to file a registration
statement with the Securities and Exchange Commission or apply to or
qualify the Revolving Credit Loans or the Notes under the blue sky laws
of any state;
(v) no consent of the Borrowers or the Administrative Agent shall
be required if the assignee of such assignment is an Affiliate of the
assigning Lender;
(vi) the assigning Lender shall pay to the Administrative Agent an
assignment fee of $2,500 upon the execution by such Lender of the
Assignment and Acceptance; provided that no such fee shall be payable
upon any assignment by a Lender to an Affiliate thereof;
(vii) the assignee of each such assignment shall deliver tax forms
in accordance with Sections 5.2(f)(iv) and (v), if applicable; and
(viii) the assignee of each such assignment shall execute and
deliver to the Administrative Agent any such supplements to the
Canadian or German Security Documents and/or additional Canadian or
German Security Documents that may be reasonably required by such Agent
in order that the assignee may become a secured party thereunder.
Upon such execution, delivery, acceptance and recording, from and after the
effective date specified in each Assignment and Acceptance, which effective date
shall be at least five (5) Business Days after the execution thereof, (A) the
assignee thereunder shall be a party hereto and, to the extent provided in such
Assignment and Acceptance, have the rights and obligations of a Lender hereby
and (B) the Lender thereunder shall, to the extent provided in such assignment,
be released from its obligations under this Agreement.
(c) Rights and Duties Upon Assignment. By executing and delivering an
Assignment and Acceptance, the assigning Lender thereunder and the assignee
thereunder confirm to and agree with each other and the other parties hereto as
follows:
(i) other than the representation and warranty that it is the
legal and beneficial owner of the interest being assigned thereby free
and clear of any adverse claim, such assigning Lender makes no
representation or warranty and assumes no responsibility with respect
to any statements, warranties or representations made in or in
connection with this Agreement or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement or
any other instrument or document furnished pursuant hereto;
(ii) such assigning Lender makes no representation or warranty and
assumes no responsibility with respect to the financial condition of
the Borrowers or their Subsidiaries or the performance or observance by
the Borrowers and their Subsidiaries of any of their obligations under
this Agreement or any other instrument or document furnished pursuant
hereto;
(iii) such assignee confirms that it has received a copy of this
Agreement, together with copies of the financial statements referred to
in Section 6.1(o) and the most recent financial statements delivered to
the Assignor pursuant to Section 7.1 and such other documents and
information as it has deemed appropriate to make its own credit
analysis and decision to enter into such Assignment and Acceptance;
(iv) such assignee will, independently and without reliance upon
any Agent, such assigning Lender or any other Lender, and based on such
documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking
action under this Agreement;
(v) such assignee confirms that it is an Eligible Assignee;
(vi) such assignee appoints and authorizes each Agent to take such
action as agent on its behalf and to exercise such powers under this
Agreement and the other Loan Documents as are delegated to such Agent
by the terms hereof and thereof, together with such powers as are
reasonably incidental thereto; and
(vii) such assignee agrees that it will perform in accordance with
their terms all of the obligations which by the terms of this Agreement
are required to be performed by it as a Lender.
(d) Register. The Administrative Agent shall maintain a copy of each
Assignment and Acceptance delivered to it and a register for the recordation of
the names and addresses of the Lenders and the amount of the Extensions of
Credit with respect to each Lender from time to time (the "Register"). The
entries in the Register shall be conclusive, in the absence of manifest error,
and the Borrowers, the Agents and the Lenders may treat each person whose name
is recorded in the Register as a Lender hereunder for all purposes of this
Agreement. The Register shall be
available for inspection by the Borrowers or Lender at any reasonable time and
from time to time upon reasonable prior notice.
(e) Issuance of New Notes. Upon its receipt of an Assignment and
Acceptance executed by an assigning Lender and an Eligible Assignee together
with any Note or Notes subject to such assignment and the written consent to
such assignment, the Administrative Agent shall, if such Assignment and
Acceptance has been completed and is substantially in the form of Exhibit G:
(i) accept such Assignment and Acceptance;
(ii) record the information contained therein in the Register;
(iii) give prompt notice thereof to the Lenders and the Borrowers;
and
(iv) promptly deliver a copy of such Assignment and Acceptance to
ACC.
Within five (5) Business Days after receipt of notice, ACC shall execute and
deliver to the Administrative Agent, in exchange for the surrendered Note or
Notes, a new Note or Notes to the order of such Eligible Assignee in amounts
equal to the Commitment assumed by it pursuant to such Assignment and Acceptance
and a new Note or Notes to the order of the assigning Lender in an amount equal
to the Commitment retained by it hereunder. Such new Note or Notes shall be in
an aggregate principal amount equal to the aggregate principal amount of such
surrendered Note or Notes, shall be dated the effective date of such Assignment
and Acceptance and shall otherwise be in substantially the form of the assigned
Notes delivered to the assigning Lender. Each surrendered Note or Notes shall be
canceled and returned to ACC.
(f) Participations. Each Lender may sell participations to one or more
banks or other entities in all or a portion of its rights and obligations under
this Agreement (including, without limitation, all or a portion of its
Commitment and its Extensions of Credit and the Notes held by it); provided
that:
(i) each such participation shall be in an amount not less than
$3,000,000;
(ii) such Lender's obligations under this Agreement (including,
without limitation, its Commitment) shall remain unchanged;
(iii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations;
(iv) such Lender shall remain the holder of the Notes held by it
for all purposes of this Agreement;
(v) the Borrowers, the Agents and the other Lenders shall
continue to deal solely and directly with such Lender in connection
with such Lender's rights and obligations under this Agreement;
(vi) such Lender shall not permit such participant the right to
approve any waivers, amendments or other modifications to this
Agreement or any other Loan Document other than waivers, amendments or
modifications which would reduce the principal of or the interest rate
on any Loan or Reimbursement Obligation, extend the term or increase
the amount of the Commitment of such participant, reduce the amount of
any fees to which such participant is entitled, extend any scheduled
payment date for principal or, except as expressly contemplated hereby
or thereby, release substantially all of the Collateral; and
(vii) any such disposition shall not, without the consent of the
applicable Borrower, require such Borrower to file a registration
statement with the Securities and Exchange Commission to apply to
qualify the Revolving Credit Loans or the Notes under the blue sky law
of any state.
(g) Disclosure of Information; Confidentiality. The Agents and the
Lenders shall hold all non-public information obtained pursuant to the Loan
Documents in accordance with their customary procedures for handling
confidential information. Any Lender may, in connection with any assignment,
proposed assignment, participation or proposed participation pursuant to this
Section 14.10, disclose to the assignee, participant, proposed assignee or
proposed participant, any information relating to the Borrowers furnished to
such Lender by or on behalf of the Borrowers; provided, that prior to any such
disclosure, each such assignee, proposed assignee, participant or proposed
participant shall agree with the Borrowers or such Lender (which in the case of
an agreement with only such Lender, the Borrowers shall be recognized as third
party beneficiaries thereof) to preserve the confidentiality of any confidential
information relating to the Borrowers received from such Lender. Without
limiting the generality of the above, the Borrowers agree and consent to the
Agents' disclosure of information relating to this transaction to Gold Sheets
and other similar bank trade publications. Such disclosed information will
consist of deal terms and other information customarily found in such
publications.
(h) Certain Pledges or Assignments. Nothing herein shall prohibit any
Lender from pledging or assigning any Note to any Federal Reserve Bank in
accordance with Applicable Law.
(i) Agent Participation to Affiliates. Nothing herein shall prohibit
the Administrative Agent from selling a participation to any of its Affiliates
on terms acceptable to the Administrative Agent.
SECTION 14.11. Amendments, Waivers and Consents; Renewal.
(a) Except as set forth below, any term, covenant, agreement or
condition of this Agreement or any of the other Loan Documents may be amended or
waived by the Lenders (excluding any Hedging Agreement that is a Loan Document,
which may be amended in
accordance with its terms), and any consent given by the Lenders, if, but only
if, such amendment, waiver or consent is in writing signed by the Required
Lenders (or by the Administrative Agent with the written consent of the Required
Lenders) and delivered to the Administrative Agent and, in the case of an
amendment, signed by the Borrowers; provided, that no amendment, waiver or
consent shall (i) release any Borrower or the Guarantor from its Obligations
hereunder, (ii) increase the amount or extend the time of the obligation of the
Lenders to make Loans or issue or participate in Letters of Credit (including
without limitation pursuant to Section 2.7), (iii) extend the originally
scheduled time or times of payment of any fees due hereunder or the principal of
any Loan or Reimbursement Obligation or the time or times of payment of interest
on any Loan, Letter of Credit or Reimbursement Obligation, (iv) reduce the rate
of interest or fees payable on any Loan or Reimbursement Obligation, (v) permit
any subordination of the principal or interest on any Loan or Reimbursement
Obligation, (vi) extend the expiration date of any Letter of Credit beyond the
Revolving Credit Termination Date, (vii) release any material portion of the
Collateral or release any Security Document (other than the release of assets
specifically permitted to be sold or otherwise transferred pursuant to the terms
hereof and other than as specifically permitted by the applicable Security
Document) (viii) amend the definitions of Alternative Currency or Permitted
Currency or (ix) amend the provisions of this Section 14.11 or the definition of
Required Lenders, without the prior written consent of each Lender. Further, no
amendment, waiver or consent shall waive any Default or Event of Default arising
under Section 12.1(i) or otherwise modify such Section 12.1(i) without the prior
written consent of the Supermajority Lenders. In addition, no amendment, waiver
or consent to the provisions of Article XIII shall be made without the written
consent of the affected Agents.
SECTION 14.12. Performance of Duties. The Borrowers' obligations under
this Agreement and each of the Loan Documents shall be performed by the
applicable Borrower at its sole cost and expense.
SECTION 14.13. Indemnification. The Borrowers agree to reimburse each
Agent and the Lenders for all reasonable costs and expenses, including
reasonable counsel, appraisal, or other expert or consultant fees and
disbursements incurred, and to indemnify and hold each Agent and the Lenders
harmless from and against all losses suffered by such Agent and the Lenders in
connection with (a) the exercise by the Agents or the Lenders of any right or
remedy granted to them under this Agreement or any of the other Loan Documents,
(b) any claim, and the prosecution or defense thereof, arising out of or in any
way connected with this Agreement or any of the other Loan Documents and (c) the
collection or enforcement of the Obligations or any of them; provided, that the
indemnity contained herein shall not apply to the extent that such losses,
claims, damages, liabilities or other expenses result from the gross negligence
or willful misconduct of such indemnified person; and further provided that,
promptly after the receipt by an indemnified person of notice of any pending or
threatened action with respect to which the indemnified person may claim
indemnification under this Agreement (an "Action"), the indemnified person shall
provide written notice thereof to ACC and ACC shall then be entitled, at its
sole and reasonable discretion, to assume the defense of any such Action, with
counsel reasonably satisfactory to the indemnified person. After written notice
to the indemnified person from ACC of its election to assume the defense of such
Action, ACC shall not be liable to such indemnified person for any legal
expenses or fees of other counsel or any other expense incurred
by such indemnified person in connection with the defense thereof after such
date, except as provided below. The indemnified person shall cooperate with all
reasonable requests of ACC regarding the defense of any such Action.
Notwithstanding ACC's election to assume the defense thereof, however, the
indemnified person shall have the right to employ separate counsel and to
participate in, but not control, the defense of such action, and ACC shall pay
the reasonable fees and expenses of such separate counsel (provided that with
respect to any single Action, ACC shall not be required to bear the fees and
expenses of more than one such counsel in any single jurisdiction) if (a) the
use of counsel chosen by ACC to represent the indemnified person would present a
conflict-of-interest in the reasonable determination of the indemnified person
or such counsel, or (b) the defendants in or target of any such Action include
both the indemnified person and ACC, and the indemnified person reasonably
concluded that there may be legal defenses available to it that differ from or
are in addition to those available to ACC. ACC shall not be liable for any
settlement of any action effected by an indemnified person without ACC's prior
written consent (which shall not be unreasonably withheld).
SECTION 14.14. All Powers Coupled with Interest. All powers of attorney
and other authorizations granted to the Lenders, each Agent and any Persons
designated by such Agent or Lenders pursuant to any provisions of this Agreement
or any of the other Loan Documents shall be deemed coupled with an interest and
shall be irrevocable so long as any of the Obligations remain unpaid or
unsatisfied or the Credit Facility has not been terminated.
SECTION 14.15. Survival of Indemnities. Notwithstanding any termination
of this Agreement, the indemnities to which the Agents and the Lenders are
entitled under the provisions of this Article XIV and any other provision of
this Agreement and the Loan Documents shall continue in full force and effect
and shall protect the Agents and the Lenders against events arising after such
termination as well as before.
SECTION 14.16. Titles and Captions. Titles and captions of Articles,
Sections and subsections in this Agreement are for convenience only, and neither
limit nor amplify the provisions of this Agreement.
SECTION 14.17. Severability of Provisions. Any provision of this
Agreement or any other Loan Document which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective only to the extent
of such prohibition or unenforceability without invalidating the remainder of
such provision or the remaining provisions hereof or thereof or affecting the
validity or enforceability of such provision in any other jurisdiction.
SECTION 14.18. Counterparts. This Agreement may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and shall be
binding upon all parties, their successors and assigns, and all of which taken
together shall constitute one and the same agreement.
SECTION 14.19. ACC as Agent for Other Borrowers. Each Borrower hereby
appoints and authorizes ACC (a) to provide the Administrative Agent with all
notices with respect to Extensions of Credit for the benefit of itself and any
other Borrower and to provide the
Administrative Agent with and receive therefrom all other notices and
instructions under this Agreement and (b) to take such action on behalf of
itself and such other Borrowers as ACC deems appropriate to obtain Extensions of
Credit and to exercise such other powers as are reasonably incidental to carry
out the purposes of this Agreement (including without limitation acceptance of
service of process for itself and each other Borrower and Subsidiary under
Section 14.5). This appointment shall be irrevocable and coupled with an
interest.
SECTION 14.20. Term of Agreement. This Agreement shall remain in effect
from the Closing Date through and including the date upon which all Obligations
shall have been indefeasibly and irrevocably paid and satisfied in full. No
termination of this Agreement shall affect the rights and obligations of the
parties hereto arising prior to such termination.
SECTION 14.21. Inconsistencies with Other Documents; Independent Effect
of Covenants.
(a) In the event there is a conflict or inconsistency between this
Agreement, the Notes or the other Loan Documents, the terms of this Agreement
shall control; provided, that any provision of the Security Documents which
imposes additional burdens on any Borrower or its Subsidiaries or further
restricts the rights of any Borrower or its Subsidiaries or gives the Lenders
additional rights shall not be deemed to be in conflict or inconsistent with
this Agreement and shall be given full force and effect.
(b) The Borrowers expressly acknowledge and agree that each covenant
contained in Articles VIII, IX or X hereof shall be given independent effect.
Accordingly, the Borrowers shall not engage in any transaction or other act
otherwise permitted under any covenant contained in Articles VIII, IX or X if,
before or after giving effect to such transaction or act, the Borrower shall or
would be in breach of any other covenant contained in Articles VIII, IX or X.
[Signature pages to follow]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers, all as of the day and year first
written above.
[CORPORATE SEAL] ACC CORP.
By:_________________________________________
Name:___________________________________
Title:__________________________________
[CORPORATE SEAL] ACC LONG DISTANCE CORP.
By:_________________________________________
Name:___________________________________
Title:__________________________________
[CORPORATE SEAL] ACC NATIONAL TELECOM CORP.
By:_________________________________________
Name:___________________________________
Title:__________________________________
[CORPORATE SEAL] ACC LONG DISTANCE OF MASSACHUSETTS CORP.
By:_________________________________________
Name:___________________________________
Title:__________________________________
[CORPORATE SEAL] ACC GLOBAL CORP.
By:_________________________________________
Name:___________________________________
Title:__________________________________
[CORPORATE SEAL] ACC RADIO CORP.
By:_________________________________________
Name:___________________________________
Title:__________________________________
[CORPORATE SEAL] ACC NATIONAL LONG DISTANCE CORP.
By:_________________________________________
Name:___________________________________
Title:__________________________________
[CORPORATE SEAL] ACC SERVICE CORP.
By:_________________________________________
Name:___________________________________
Title:__________________________________
[CORPORATE SEAL] ACC CREDIT CORP.
By:_________________________________________
Name:___________________________________
Title:__________________________________
[CORPORATE SEAL] ACC TELENTERPRISES LTD.
By:_________________________________________
Name:___________________________________
Title:__________________________________
[CORPORATE SEAL] ACC LONG DISTANCE U.K., LTD.
By:_________________________________________
Name:___________________________________
Title:__________________________________
[CORPORATE SEAL] UNITED TELECOM LTD.
By:_________________________________________
Name:___________________________________
Title:__________________________________
[CORPORATE SEAL] ACC TELEKOMMUNIKATION GMBH
By:_________________________________________
Name:___________________________________
Title:__________________________________
FIRST UNION NATIONAL BANK, as
Administrative Agent, Managing Agent,
Swingline Lender, Issuing Lender and Lender
By:_________________________________________
Name:___________________________________
Title:__________________________________
FLEET NATIONAL BANK, as Managing Agent,
Documentation Agent and Lender
By:_________________________________________
Name____________________________________
Title:__________________________________
CORESTATES BANK NA
By:_________________________________________
Name:___________________________________
Title:__________________________________
STATE STREET BANK AND TRUST COMPANY
By:_________________________________________
Name:___________________________________
Title:__________________________________
BANK OF MONTREAL
By:_________________________________________
Name:___________________________________
Title:__________________________________
BANK OF SCOTLAND
By:_________________________________________
Name:___________________________________
Title:__________________________________
Schedule 1.1: Lenders and Commitments
Commitment
Lender Commitment Percentage
First Union National Bank $37,500,000 25.0000000000%
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇-▇▇
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Syndication Agency
Services
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fleet National Bank
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇-▇▇-▇▇▇▇ $37,500,000 25.0000000000%
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Bank of Montreal
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ $24,000,000 16.0000000000%
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Media/Communications
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
State Street Bank and Trust Company
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ 2 $20,000,000 13.3333333333%
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Bank of Scotland $24,000,000 16.0000000000%
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇ Tat
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
CoreStates Bank, N.A. $7,000,000 4.▇▇▇▇▇▇▇▇▇▇%
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇ ▇-▇-▇▇-▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇ ▇▇▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Schedule 1.2 : Sublimits
Borrower Sublimit*
ACC Canada and any Additional Borrower $30,000,000
who is a CanadianBorrower
ACC U.K. and any Additional Borrower $50,000,000
which is a U.K.Borrower
ACC Germany and any Additional $20,000,000
Borrower which is a German Borrower
ACC and any Additional Borrower $150,000,000 less
who is a Domestic Borrower outstandings to all
other Borrowers
*The Sublimits may be revised upon the prior written consent of the Required
Lenders.