Exhibit 10-18
AMENDED AND RESTATED CREDIT AGREEMENT
dated as of January 14, 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 OF NORTH CAROLINA,
as Managing Agent and Administrative Agent,
and
FLEET NATIONAL BANK,
as Managing Agent and Documentation Agent
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.2. General . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 1.3. Other Definitions and Provisions. . . . . . . . . . . . . . . 22
ARTICLE II
CREDIT FACILITY
SECTION 2.1. Revolving Credit Loans. . . . . . . . . . . . . . . . . . . . 23
SECTION 2.2. Swingline Loans.. . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 2.3. Procedure for Advances of Revolving Credit
and Swingline Loans.. . . . . . . . . . . . . . . . . . . . . 25
SECTION 2.4. Repayment of Extensions of Credit . . . . . . . . . . . . . . 27
SECTION 2.5. Notes.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 2.6. Permanent Reductions of the Aggregate
Commitment. . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 2.7. Termination of Credit Facility. . . . . . . . . . . . . . . . 31
SECTION 2.8. Use of Proceeds.. . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 2.9. Nature of Obligations; Security.. . . . . . . . . . . . . . . 31
ARTICLE III
LETTER OF CREDIT FACILITY
SECTION 3.1. L/C Commitment. . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 3.2. Procedure for Issuance of Letters of Credit . . . . . . . . . 32
SECTION 3.3. Fees and Other Charges. . . . . . . . . . . . . . . . . . . . 33
SECTION 3.4. L/C Participations. . . . . . . . . . . . . . . . . . . . . . 33
SECTION 3.5. Reimbursement Obligation of the Borrower. . . . . . . . . . . 35
SECTION 3.6. Obligations Absolute. . . . . . . . . . . . . . . . . . . . . 35
SECTION 3.7. Effect of Application . . . . . . . . . . . . . . . . . . . . 36
ARTICLE IV
GENERAL LOAN PROVISIONS
SECTION 4.1. Interest. . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 4.2. Notice and Manner of Conversion or Continuation
of Revolving Credit Loans . . . . . . . . . . . . . . . . . . 39
SECTION 4.3. Fees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 4.4. Manner of Payment . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 4.5. Crediting of Payments and Proceeds. . . . . . . . . . . . . . 42
SECTION 4.6. Nature of Obligations of Lenders
Regarding Extensions of Credit; Assumption
by Administrative Agent . . . . . . . . . . . . . . . . . . . 43
SECTION 4.7. Regulatory Limitation . . . . . . . . . . . . . . . . . . . . 44
SECTION 4.8. Changed Circumstances . . . . . . . . . . . . . . . . . . . . 44
SECTION 4.9. Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION ▇.▇▇.▇▇▇▇▇▇▇ Requirements . . . . . . . . . . . . . . . . . . . . . 47
SECTION 4.11.Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
ARTICLE V
CLOSING; CONDITIONS OF CLOSING AND BORROWING
SECTION 5.1. Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 5.2. Conditions to Closing and Initial Extensions
of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 5.3. Conditions to All Extensions of Credit. . . . . . . . . . . . 54
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF BORROWERS
SECTION 6.1. Representations and Warranties. . . . . . . . . . . . . . . . 55
SECTION 6.2. Survival of Representations and Warranties,
Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
ARTICLE VII
FINANCIAL INFORMATION AND NOTICES
SECTION 7.1. Financial Statements and Projections. . . . . . . . . . . . . 64
SECTION 7.2. Officer's Compliance Certificate. . . . . . . . . . . . . . . 65
SECTION 7.3. Accountants' Certificate. . . . . . . . . . . . . . . . . . . 66
SECTION 7.4. Other Reports . . . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 7.5. Notice of Litigation and Other Matters. . . . . . . . . . . . 66
SECTION 7.6. Accuracy of Information . . . . . . . . . . . . . . . . . . . 68
SECTION 7.7. Revisions or Updates to Schedules . . . . . . . . . . . . . . 68
ARTICLE VIII
AFFIRMATIVE COVENANTS
SECTION 8.1. Preservation of Corporate Existence and
Related Matters . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 8.2. Maintenance of Property . . . . . . . . . . . . . . . . . . . 69
SECTION 8.3. Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 8.4. Accounting Methods and Financial Records. . . . . . . . . . . 69
SECTION 8.5. Payment and Performance of Obligations. . . . . . . . . . . . 70
SECTION 8.6. Compliance With Laws and Approvals. . . . . . . . . . . . . . 70
SECTION 8.7. Environmental Laws. . . . . . . . . . . . . . . . . . . . . . 70
SECTION 8.8. Employee Benefit, Pension and Retirement Laws . . . . . . . . 70
SECTION 8.9. Compliance With Agreements. . . . . . . . . . . . . . . . . . 71
SECTION 8.10.Conduct of Business. . . . . . . . . . . . . . . . . . . . . . 71
SECTION 8.11.Visits and Inspections . . . . . . . . . . . . . . . . . . . . 71
SECTION 8.12.Material Subsidiaries; Additional Collateral . . . . . . . . . 71
SECTION 8.13.Hedging Agreement. . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 8.14.Further Assurances.. . . . . . . . . . . . . . . . . . . . . . 73
SECTION 8.15.Post-Closing Delivery. . . . . . . . . . . . . . . . . . . . . 73
ARTICLE IX
FINANCIAL COVENANTS
SECTION 9.1. Maximum Leverage Ratio. . . . . . . . . . . . . . . . . . . . 73
SECTION 9.2. Minimum Pro Forma Debt Service Coverage Ratio.. . . . . . . . 74
SECTION 9.3. Fixed Charge Coverage Ratio . . . . . . . . . . . . . . . . . 74
SECTION 9.4. Capital Expenditures. . . . . . . . . . . . . . . . . . . . . 74
SECTION 9.5. Minimum Net Worth . . . . . . . . . . . . . . . . . . . . . . 74
ARTICLE X
NEGATIVE COVENANTS
SECTION 10.1. Limitations on Debt. . . . . . . . . . . . . . . . . . . 75
SECTION 10.2. Limitations on Contingent Obligations. . . . . . . . . . 75
SECTION 10.3. Limitations on Liens . . . . . . . . . . . . . . . . . . 76
SECTION 10.4. Limitations on Loans, Advances, Investments
and Acquisitions . . . . . . . . . . . . . . . . . . . . 77
SECTION 10.5. Limitations on Mergers and Liquidation . . . . . . . . . 79
SECTION 10.6. Limitations on Sale of Assets. . . . . . . . . . . . . . 79
SECTION 10.7. Limitations on Dividends and Distributions.. . . . . . . 80
SECTION 10.8. Limitations on Exchange and Issuance of
Capital Stock . . . . . . . . . . . . . . . . . . . . . 80
SECTION 10.9. Transactions with Affiliates . . . . . . . . . . . . . . 80
SECTION 10.10. Certain Accounting Changes . . . . . . . . . . . . . . . 81
SECTION 10.11. Amendments; Payments and Prepayments of
Subordinated Debt . . . . . . . . . . . . . . . . . . . 81
SECTION 10.12. Restrictive Agreements.. . . . . . . . . . . . . . . . . 81
SECTION 10.13. Hedging Agreements.. . . . . . . . . . . . . . . . . . . 81
ARTICLE XI
UNCONDITIONAL GUARANTY
SECTION 11.1. Guaranty of Obligations. . . . . . . . . . . . . . . . . 81
SECTION 11.2. Nature of Guaranty.. . . . . . . . . . . . . . . . . . . 82
SECTION 11.3. Demand by the Administrative Agent.. . . . . . . . . . . 83
SECTION 11.4. Waivers. . . . . . . . . . . . . . . . . . . . . . . . . 83
SECTION 11.5. Modification of Loan Documents etc . . . . . . . . . . . 83
SECTION 11.6. Reinstatement. . . . . . . . . . . . . . . . . . . . . . 84
SECTION 11.7. No Subrogation . . . . . . . . . . . . . . . . . . . . . 85
ARTICLE XII
DEFAULT AND REMEDIES
SECTION 12.1. Events of Default. . . . . . . . . . . . . . . . . . . . 85
SECTION 12.2. Remedies . . . . . . . . . . . . . . . . . . . . . . . . 88
SECTION 12.3. Rights and Remedies Cumulative; Non-Waiver; etc. . . . . 89
SECTION 12.4. Consents . . . . . . . . . . . . . . . . . . . . . . . . 90
SECTION 12.5. Judgment Currency. . . . . . . . . . . . . . . . . . . . 90
SECTION 12.6. Adjustments. . . . . . . . . . . . . . . . . . . . . . . 90
ARTICLE XIII
THE AGENTS
SECTION 13.1. Appointment. . . . . . . . . . . . . . . . . . . . . . . 91
SECTION 13.2. Delegation of Duties . . . . . . . . . . . . . . . . . . 91
SECTION 13.3. Exculpatory Provisions . . . . . . . . . . . . . . . . . 92
SECTION 13.4. Reliance by Agents . . . . . . . . . . . . . . . . . . . 92
SECTION 13.5. Notice of Default. . . . . . . . . . . . . . . . . . . . 93
SECTION 13.6. Non-Reliance on Such Agents and Other Lenders. . . . . . 93
SECTION 13.7. Indemnification. . . . . . . . . . . . . . . . . . . . . 94
SECTION 13.8. Each of the Agents in Its Individual Capacity. . . . . . 94
SECTION 13.9. Resignation of Agents; Successor Agents. . . . . . . . . 94
SECTION 13.10 Documentation Agent. . . . . . . . . . . . . . . . . . . 95
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1. Notices. . . . . . . . . . . . . . . . . . . . . . . . . 95
SECTION 14.2. Expenses . . . . . . . . . . . . . . . . . . . . . . . . 96
SECTION 14.3. Set-off. . . . . . . . . . . . . . . . . . . . . . . . . 97
SECTION 14.4. Governing Law. . . . . . . . . . . . . . . . . . . . . . 97
SECTION 14.5. Consent to Jurisdiction. . . . . . . . . . . . . . . . . 98
SECTION 14.6. Binding Arbitration; Waiver of Jury Trial. . . . . . . . 98
SECTION 14.7. Reversal of Payments . . . . . . . . . . . . . . . . . . 99
SECTION 14.8. Injunctive Relief. . . . . . . . . . . . . . . . . . . . 100
SECTION 14.9. Accounting Matters . . . . . . . . . . . . . . . . . . . 100
SECTION 14.10. Successors and Assigns; Participations . . . . . . . . . 100
SECTION 14.11. Amendments, Waivers and Consents; Renewal. . . . . . . . 105
SECTION 14.12. Performance of Duties. . . . . . . . . . . . . . . . . . 105
SECTION 14.13. Indemnification. . . . . . . . . . . . . . . . . . . . . 105
SECTION 14.14. All Powers Coupled with Interest . . . . . . . . . . . . 106
SECTION 14.15. Survival of Indemnities. . . . . . . . . . . . . . . . . 106
SECTION 14.16. Titles and Captions. . . . . . . . . . . . . . . . . . . 107
SECTION 14.17. Severability of Provisions . . . . . . . . . . . . . . . 107
SECTION 14.18. Counterparts . . . . . . . . . . . . . . . . . . . . . . 107
SECTION 14.19. ACC as Agent for Other Borrowers . . . . . . . . . . . . 107
SECTION 14.20. Term of Agreement. . . . . . . . . . . . . . . . . . . . 107
SECTION 14.21. Inconsistencies with Other Documents;
Independent Effect of Covenants . . . . . . . . . . . . 107
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 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 Landlord Consent
Exhibit K - Form of Modification to Leasehold Mortgage
Exhibit L - Form of Joinder Agreement
Exhibit M - Form of Intercompany Subordination Agreement
Exhibit N - Form of U.K. Guaranty Agreement
SCHEDULES
Schedule 1 - Lenders and Commitments
Schedule 1.2 - Sublimits
Schedule 1.3 - Canadian Security Documents
Schedule 6.1(a) - Jurisdictions of Organization and Qualification
Schedule 6.1(b) - Subsidiaries and Capitalization
Schedule 6.1(i) - ERISA Plans
Schedule 6.1(l) - Material Contracts
Schedule 6.1(m) - Labor and Collective Bargaining Agreements
Schedule 6.1(t) - Debt and Contingent Obligations
Schedule 6.1(u) - Litigation
Schedule 10.3 - Existing Liens
Schedule 10.4 - Existing Loans, Advances and Investments
AMENDED AND RESTATED CREDIT AGREEMENT, dated as of the 14th
day of January, 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 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 Original 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, 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 Global Corp." means ACC Global Corp., a corporation
organized under the laws of Delaware, and its successors.
"ACC LEC" means ACC National Telecom Corp., a corporation
organized under the laws of Delaware, and its successors.
"ACC Mass." means ACC Long Distance of Massachusetts Corp., a
corporation organized under the laws of Delaware, and its successors.
"ACC National" means ACC National Long Distance Corp., a
corporation organized under the laws of Delaware, and its successors.
"ACC National Pledge Agreement" means the 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 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 Radio" means ACC Radio Corp., a corporation organized
under the laws of New York, and its successors.
"ACC U.K." means ACC Long Distance U.K., Ltd., a corporation
organized under the laws of the United Kingdom, and its successors.
"ACC U.S." means ACC Long Distance Corp., a corporation
organized under the laws of New York, and its successors.
"Additional Borrower" means any Material Subsidiary which has
become a Borrower hereunder in accordance with Section 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
Million Dollars ($100,000,000).
"Agreement" means this Amended and Restated Credit Agreement,
as further amended, restated or otherwise modified from time to time.
"Alternative Currency" means Sterling or Canadian Dollars, or
both 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 and U.K. 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 Royal Bank of Canada from
time to time or commonly known to be its Canadian Dollar base 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 the whole 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 Base Rate shall be a "Canadian Base Rate
Loan."
"Canadian Borrowers" means the collective reference to all
Borrowers and Additional Borrowers organized under the laws of Canada or
any province thereof.
"Canadian Dollars" means dollars in the lawful 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 or OFTEL including, without limitation, any
of the foregoing authorizing or permitting the acquisition, construction
or operation of Network Facilities or any other long distance
telecommunications system.
"Consolidated" means, when used with reference to financial
statements or financial statement items of ACC and its Subsidiaries,
such statements or items on a consolidated basis in accordance with
applicable principles of consolidation under GAAP.
"Contingent Interest Agreement" means the Contingent Interest
Agreement dated July 21, 1995 between ACC, First Union and Fleet, as
amended, restated or otherwise modified.
"Contingent Obligation" means, with respect to ACC and its
Subsidiaries, without duplication, any obligation, contingent or
otherwise, of any such Person pursuant to which such Person has directly
or indirectly guaranteed any Debt or other obligation of any other
Person and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of any such
Person (a) to purchase or pay (or advance or supply funds for the
purchase or payment of) such Debt or other obligation (whether arising
by virtue of partnership arrangements, by agreement to keep well, to
purchase assets, goods, securities or services, to take-or-pay, or to
maintain financial statement condition or otherwise) or (b) entered into
for the purpose of assuring in any other manner the obligee of such Debt
or other obligation of the payment thereof or to protect such obligee
against loss in respect thereof (in whole or in part); provided, that
the term Contingent Obligation shall not include endorsements for
collection or deposit in the ordinary course of business.
"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.
"Documentation Agent" means Fleet in its capacity as
Documentation Agent hereunder.
"Dollars" or "$" means, unless otherwise qualified, dollars in
lawful currency of the United States.
"Dollar Amount" means (a) with respect to each Loan made or
continued (or to be made or continued), 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 and Additional 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.
"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 Union" means First Union National Bank of North
Carolina, a national banking association, and its successors.
"Fiscal Year" means the fiscal year of ACC and its
Subsidiaries ending on December 31.
"Fixed Charges" means, with respect to ACC and its
Subsidiaries, for any period, the following without duplication, each
calculated for such period in accordance with GAAP: (a) all principal
payments or similar amounts required to be paid with respect to Total
Debt during such period plus (b) Interest Expense required to be paid
during such period plus (c) total cash dividends or distributions paid
or payable by ACC during such period 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.
"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 and any PUC.
"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 Amended and
Restated Subordination Agreement of even date substantially in the form
of Exhibit M, 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 Amended and Restated Joinder
Agreement substantially in the form of Exhibit L executed by each
Material Subsidiary in accordance with Section 8.12, as amended,
restated or otherwise modified.
"Landlord Consents" means the Landlord Agreements
substantially in the form of Exhibit J or any similar agreement
delivered by or on behalf of a Borrower and executed by the owner of the
parcels of real property with respect to which a Mortgage or other
Security Document has been executed in favor of the Administrative Agent
for the benefit of itself and the Lenders, as any such Agreement may be
amended, restated or otherwise modified.
"L/C Commitment" means the lesser of (a) Eight Million Dollars
($8,000,000) 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 Dollars in minimum amounts of at least
$5,000,000 (or the Alternative Currency Amount thereof with respect to
a borrowing to be made in an Alternative Currency) for a period equal to
the applicable Interest Period appearing on Telerate Page 3750 as of
11:00 a.m. (London time) two Business Days prior to the first day of the
applicable Interest Period. In the event that such rate does not appear
on Telerate Page 3750, "LIBOR" shall be determined by the Administrative
Agent to be the arithmetic average (rounded upward, if necessary, to the
nearest one-sixteenth of one percent (1/16%)) of the rate per annum at
which deposits in the Permitted Currency in which the Loan bearing
interest based upon such rate is denominated would be offered by first
class banks in the London interbank market to the Administrative Agent
(or the Administrative Agent's Correspondent) at approximately 11:00
a.m. (London time) two Business Days prior to the first day of the
applicable Interest Period for a period equal to such Interest Period
and in an amount substantially equal to the amount of the applicable
Loan.
"LIBOR Rate" means 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, the Contingent Interest
Agreement, any Joinder Agreement, the Security Documents and any
supplements thereto executed in connection with any Joinder Agreement,
any Hedging Agreement executed by any Lender, the 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, 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
$500,000 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
$1,000,000.
"Mortgage" means a Leasehold Mortgage delivered pursuant to
the Original Credit Agreement (as modified by the Modification to
Leasehold Mortgage substantially in the form of Exhibit K) 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 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 and Exhibit A-2 hereto with
respect to the U.K. Borrowers, (b) the separate Revolving Credit Notes
made by the applicable Borrower or Borrowers payable to the order of
each Lender, substantially in the form of Exhibit A-3 hereto with
respect to the Canadian Borrowers, (c) the separate Swingline Note and
(d) 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 5.2(f)(i).
"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, (e) the
obligations of the U.K. Borrowers as guarantors pursuant to the U.K.
Guaranty Agreement and (f) 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 and (iii) amortization and depreciation and other similar non-
cash charges less (c) the sum of (i) interest income, (ii) non-cash
income, (iii) capitalized 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 (the "Original Lenders"), 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.
"Original Letters of Credit" means letters of credit issued
pursuant to the Original Credit Agreement.
"Other Taxes" shall have the meaning assigned thereto in
Section 4.11(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
sixty-six and two-thirds percent (66-2/3%) of the Revolving Credit Loans
and L/C Obligations, or if no 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%).
"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 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
Landlord Consents, the Mortgages, the Canadian Security Documents, the
U.K. Security Documents, the U.K. Guaranty Agreement and each other
agreement or writing pursuant to which ACC or any Subsidiary thereof
pledges or grants a security interest in the Collateral or such Person
guaranties the payment and/or performance of the Obligations 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 pounds sterling in the lawful currency of the
United Kingdom.
"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.
"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 Note made by the Domestic
Borrowers payable to the order of the Swingline Lender, substantially in
the form of Exhibit A-4 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
4.11(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 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 and Additional Borrowers organized under the laws of the
United Kingdom or any political subdivision thereof.
"U.K. Guaranty Agreement" means the U.K. Guaranty Agreement of
even date executed by ACC U.K. and any other U.K. Borrowers in favor of
the Administrative Agent for the benefit of itself and the Lenders
substantially in the form of Exhibit N, as amended, restated or
otherwise modified.
"U.K. Security Documents" means the collective reference to
the Amended and Restated Debenture of even date executed by ACC U.K. in
favor of the Administrative Agent for the benefit of itself and the
Lenders, the Pledge Agreement of even date governed by English law and
signed by ACC Corp. in favor of the Administrative Agent for the benefit
of itself and the Lenders, and any other agreement or writing pursuant
to which a U.K. Borrower or 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.
"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.
"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 and
Revolving Credit Loans to the Canadian Borrowers shall be denominated in
Canadian Dollars. 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. (London 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. (London 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 such proceeds to a deposit account of the applicable
Borrower or Borrowers maintained with the Administrative Agent or by
wire transfer from such deposit account to another account as may be
requested by such Borrower or Borrowers by prior written notice to the
Administrative Agent. 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 such proceeds to an account of
the applicable Borrower maintained with the Administrative Agent's
Correspondent or by wire transfer from such deposit account to another
account as may be requested by such Borrower by prior written notice to
the Administrative Agent.
(d) Availability. 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 4.9.
(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 4.9 hereof.
(e) Limitation on Repayment of LIBOR Rate Loans. No Borrower
may repay any LIBOR Rate Loan (including, without limitation, any 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 4.9.
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 Notes. 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 shall be
permanently reduced according to the following schedule:
Aggregate
Date Commitment
Dec. 31, 1998 $92,000,000
Mar. 31, 1999 84,000,000
June 30, 1999 76,000,000
Sep. 30, 1999 68,000,000
Dec. 31, 1999 60,000,000
Mar. 31, 2000 52,000,000
June 30, 2000 44,000,000
Sep. 30, 2000 36,000,000
Dec. 31, 2001 27,000,000
Mar. 31, 2001 18,000,000
June 30, 2001 9,000,000
Sep. 30, 2001 -0-
(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.
(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 $250,000 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 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 4.9.
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) September 30, 2001, (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 and Canadian Borrowers, shall be
several and not joint and several. The obligations of the Canadian
Borrowers under the Note or Notes executed thereby and the other
Obligations of such Borrowers 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 Canadian Borrowers in relation to the Domestic Borrowers and the
U.K. Borrowers shall be several and not joint and several. The
Obligations of each Borrower shall be secured in accordance with the
terms of the applicable Security Documents.
ARTICLE III
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, and denominated in Sterling for the
account of the U.K. 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 Original 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 the Revolving
Credit Termination Date 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.
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 accor-
dance 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 or
Sterling, 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 Sections 4.1(d) and 4.8, Loans
denominated in Canadian Dollars shall bear interest at the Canadian Base
Rate, and Loans denominated in Sterling shall bear interest at the
Sterling Base Rate. However, the LIBOR Rate 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 five (5) Interest Periods
outstanding at any time and with respect to Revolving Credit Loans
denominated in an Alternative Currency, there shall be no more than two
(2) 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 0.500% 2.000%
to 1.0.
Greater than 2.5 to 1.0 0.125% 1.625%
but less than or equal to
3.0 to 1.0.
Greater than 2.0 to 1.0 but -0- 1.375%
less than or equal to 2.5 to 1.0
Less than or equal to -0- 1.000%
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, (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 convert on such date to Base
Rate Loans if denomiated in Dollars, Sterling Bse Rate Loans if
denominated in Sterling and Canadian Base Rate Loans if denominated in
Canadian Dollars, and each shall bear interest, thereafter at a rate
equal to two percent (2%) in excess of the rate then applicable to Base
Rate Loans, or Canadian Base Rate Loans, as applicable, 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 March 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 or
Canadian Dollars shall be computed on the basis of a 360-day year and
assessed for the actual number of days elapsed, and (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.
(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 or U.K.
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 deemed a Sterling Base Rate Loan or a Canadian
Base Rate Loan, as applicable.
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 2.5 to 1.00 0.500%
Less than or equal to
2.5 to 1.0, but greater
than 2.0 to 1.0 0.375%
Less than or equal to 0.250%
2.0 to 1.0
The commitment fee shall be payable in arrears on the last Business Day
of each calendar quarter during the term of this Agreement commencing
March 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
August 15, 1996, 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. 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 4.8. 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, (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) or (iii) it has become otherwise materially
impractical for the Administrative Agent or any Lender, as applicable,
to make such Loan in an Alternative Currency, 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, 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, or
Canadian 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 or Canadian 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
4.8(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.
SECTION 4.9. 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 4.10. 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 4.11. 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 4.11(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
4.11) 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 4.11(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 4.11, 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 4.11) 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 4.11 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
January 14, 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 Landlord Consents;
(ix) the Canadian Security Documents;
(x) the U.K. Security Documents;
(xi) the Intercompany Subordination Agreement; and
(xii) the U.K. Guaranty 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.
(b) Closing Certificates; etc.
(i) Compliance Certificate of the Borrowers. The
Administrative Agent shall have received a certificate from the chief
executive officer or chief financial officer of ACC, in form and
substance reasonably satisfactory to the Administrative Agent, to the
effect that all representations and warranties of the Borrowers
contained in this Agreement and the other Loan Documents are true,
correct and complete 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 required tax returns and owe no delinquent taxes.
(ii) Certificate of Secretary of each Borrower. The
Administrative Agent shall have received a certificate of the secretary
or assistant secretary (or director with respect to ACC U.K.) of each
Borrower certifying, as applicable, that attached thereto is a true and
complete copy of the articles of incorporation or other charter
documents of such Borrower and all amendments thereto, certified as of
a recent date by the appropriate Governmental Authority in its
jurisdiction of incorporation; that attached thereto is a true and
complete copy of the bylaws of such Borrower as in effect on the date of
such certification; that attached thereto is a true and complete copy of
resolutions duly adopted by the Board of Directors of such Borrower,
authorizing the borrowings contemplated hereunder and the execution,
delivery and performance of this Agreement and the other Loan Documents
to which it is a party; and as to the incumbency and genuineness of the
signature of each officer of such Borrower executing Loan Documents to
which such Person is a party.
(iii) Certificates of Good Standing. The Administrative
Agent shall have received long-form certificates as of a recent date of
the good standing of each Borrower under the laws of their respective
jurisdictions of organization and such other jurisdictions requested by
the Managing Agents.
(iv) Opinions of Counsel. The Administrative Agent shall
have received favorable opinions of United States, Canadian and United
Kingdom counsel to the Borrowers addressed to the 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 and any Canadian Security
Document, together with an appropriate undated stock power for each
certificate duly executed in blank by the registered owner thereof.
(iii) Lien Searches. The Administrative Agent shall have
received the results of a Lien search of all filings made against such
Borrowers under the Uniform Commercial Code, 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 executive officer or
chief financial officer of ACC, that (A) attached thereto is a pro forma
balance sheet of ACC and its Subsidiaries setting forth on a pro forma
basis the financial condition of ACC and its Subsidiaries on a
Consolidated basis as of that date, reflecting on a pro forma basis the
effect of the transactions contemplated herein, including all material
fees and expenses in connection therewith, and evidencing compliance on
a pro forma basis with the covenants contained in 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, 1996.
(iii) Payment at Closing. (A) There shall have been paid
by the Borrowers to the Administrative Agent the outstanding portion of
the underwriting fee payable pursuant to the fee letter referred to in
Section 4.3(b); (B) there shall have been paid by the Borrowers to each
of First Union and Fleet the Contingent Interest Payment under the
Contingent Interest Agreement (the Trigger Date thereunder being hereby
deemed to be January 14, 1997 and (C) 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 written notice in the form attached hereto as
Exhibit F (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) ACC U.K. Charter Amendment. The constitutional
documents of ACC U.K. shall have been amended in a manner reasonably
satisfactory to the Administrative Agent such that the directors of ACC
U.K. shall not have the discretion to refuse to register any transfer of
the shares of capital stock of ACC U.K. in order to remove any obstacles
to the full performance of ACC under the ACC Pledge Agreement.
(iii) 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.
(iv) 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.
(v) Canadian Termination/Release Documents. The
Borrowers shall have delivered to the Administrative Agent all documents
necessary to effect the release and termination of the Canadian Note
Documents and Canadian Subsidiary Security Documents, as such terms are
defined in the Original Credit Agreement.
(vi) Canadian Amalgamation Documents. The Borrowers
shall have delivered to the Administrative Agent all documentation and
other evidence satisfactory thereto demonstrating the acquisition of all
of the shares of ACC TelEnterprises Ltd. by ACC Acquisition Corp. prior
to the first amalgamation described below; the amalgamation of ACC
TelEnterprises Ltd. and ACC Acquisition Corp., with ACC TelEnterprises
Ltd. as the survivor; and the amalgamation of Metrowide Communications
Inc., ACC Long Distance Inc., ACC TelEnterprises Ltd. and others, with
ACC TelEnterprises Ltd. as the survivor (and defined in this Agreement
as "ACC Canada").
(g) Refinancing. On the Closing Date hereunder, (i) all
loans under the Original Credit Agreement ("Existing Loans") made by any
Original 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 Original Credit Agreement) rights of such Original Lender
shall be terminated, (ii) all outstanding Existing Loans shall be
Revolving Credit Loans hereunder 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
Original Letters of Credit 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 Original Credit Agreement due to but excluding the
Closing Date and all other amounts, costs and expenses then owing to any
of the Original Lenders and/or any Agent, as agent under the Original
Credit Agreement, in each case to the satisfaction of such Agent or
Original 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 Original Credit Agreement and (vi) all outstanding
promissory notes issued by the Borrowers to the Original Lenders under
the Original Credit Agreement shall be promptly returned to the
Administrative Agent who shall forward such notes to the Borrower.
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 are described on
Schedule 6.1(a).
(b) Ownership. Each Material Subsidiary and other Subsidiary
of ACC is listed on Schedule 6.1(b) and each Material Subsidiary is so
designated on such Schedule. 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 are described on Schedule 6.1(b). There are no outstanding
stock purchase warrants, subscriptions, options, securities, instruments
or other rights of any type or nature whatsoever, which are convertible
into, exchangeable for or otherwise provide for or permit the issuance
of capital stock of ACC or its Subsidiaries, except as described on
Schedule 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, (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
or Canadian 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 or (D) Canadian 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 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(m).
(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, 1995, 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, 1996 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, 1995,
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 $250,000. ACC and its
Subsidiaries have performed and are in material compliance with all of
the terms of such Debt and Contingent Obligations and all instruments
and agreements relating thereto, and no default or event of default, or
event or condition which with notice or lapse of time or both would
constitute such a default or event of default on the part of ACC or its
Subsidiaries exists with respect to any such Debt or Contingent
Obligation.
(u) Litigation. Except as set forth on Schedule 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) 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 finally and indefeasibly
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 at the address set forth in Section 14.1 hereof 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,
retained earnings and cash flows for the fiscal quarter then ended and
that portion of the Fiscal Year then ended, including the notes thereto,
all in reasonable detail setting forth in comparative form the
corresponding figures for the preceding Fiscal Year and prepared by ACC
in accordance with GAAP, and certified by the chief financial officer of
ACC to present fairly in all material respects the financial condition
of ACC and its Subsidiaries as of their respective dates and the results
of operations of ACC and its Subsidiaries for the respective periods
then ended, subject to normal year end adjustments.
(b) Annual Financial Statements. As soon as practicable and
in any event within one hundred and twenty (120) days after the end of
each Fiscal Year, an unaudited consolidating balance sheet and income
statement of ACC and its Subsidiaries and an audited Consolidated
balance sheet of ACC and its Subsidiaries as of the close of such Fiscal
Year and audited Consolidated statements of income, retained earnings
and cash flows for the Fiscal Year then ended, including the notes
thereto, all in reasonable detail setting forth in comparative form the
corresponding figures for the preceding Fiscal Year and audited by an
independent certified public accounting firm of nationally recognized
standing in accordance with GAAP, and accompanied by a report thereon by
such certified public accountants that is not qualified with respect to
scope limitations imposed by ACC or any of its Subsidiaries or with
respect to accounting principles followed by ACC or any of its
Subsidiaries not in accordance with GAAP.
(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.
SECTION 7.7. Revisions or Updates to Schedules. Should any
of the information or disclosures provided on any of the Schedules
originally attached hereto become outdated or incorrect in any material
respect during any fiscal quarter, the Borrowers shall provide promptly
to the Administrative Agent (with copies for each Managing Agent) such
revisions or updates to such Schedule(s) as may be necessary or
appropriate to update or correct such Schedule(s) within forty-five (45)
days after the end of such fiscal quarter; provided that subsequent
disclosures shall not constitute a cure or waiver of any Default or
Event of Default resulting from the matters disclosed.
ARTICLE VIII
AFFIRMATIVE COVENANTS
Until all of the Obligations have been finally and
indefeasibly paid and satisfied in full and the Commitments terminated,
unless consent has been obtained in the manner provided for in Section
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, 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 and the United Kingdom with
respect to the Canadian Borrowers and the U.K. 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 of ACC or any Subsidiary
thereof in full conformity and compliance with all federal and
provincial laws and regulations relating to any Canadian 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 furnish to the Administrative Agent
upon such Agent's request such additional information about any Canadian
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,
(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 (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 the U.K.
Guaranty Agreement, (v) such other documents reasonably requested by the
Required Lenders consistent with the terms of this Agreement which
provide that such Subsidiary shall become a Borrower bound by all of the
terms, covenants and agreements contained in the Loan Documents and that
the assets of such Material Subsidiary shall become Collateral for the
Obligations and (vi) 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, Leasehold 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 aggregate principal Dollar Amount of the Extensions
of Credit is less than $30,000,000, 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 Delivery. Within ninety (90) days
after the date hereof, provide a Landlord Consent executed by the
landlord (and, with respect to the leased premises located at 32 Old
Slip, the landlord's lender) with respect to the leased premises located
at (a) ▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, (▇) ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇ and (c) ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇.
ARTICLE IX
FINANCIAL COVENANTS
Until all of the Obligations have been finally and
indefeasibly paid and satisfied in full and the Commitments terminated,
unless consent has been obtained in the manner set forth in Section
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), for any calculation period from the Closing Date
through September 30, 1997, Operating Cash Flow for the two (2)
consecutive fiscal quarters ending on or immediately prior to such date
times two (2), and for any calculation period thereafter, Operating Cash
Flow for the period of four (4) consecutive fiscal quarters ending on or
immediately prior to such date, to exceed the corresponding ratio set
forth below:
Period Ratio
Closing Date through
March 31, 1997 3.50 to 1.00
April 1, 1997 through
September 30, 1997 3.00 to 1.00
October 1, 1997 through
March 31, 1998 2.50 to 1.00
April 1, 1998 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 on 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.
(a) As of any date of determination (i) from the Closing Date
through and including September 30, 1997, permit the ratio of (A)
Operating Cash Flow for the two (2) consecutive fiscal quarters ending
on or immediately prior to such date times two (2) to (B) Fixed Charges
for the two (2) consecutive fiscal quarters ending on or immediately
prior to such date times two (2) to be less than 0.50 to 1.00 and (ii)
from October 1, 1997 through and including December 31, 1997, 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 to be less than 0.50 to 1.00; and
(b) as of any date of determination after December 31, 1997,
permit the ratio of (i) Operating Cash Flow for the period of four (4)
consecutive fiscal quarters ending on or immediately prior to such date
to (ii) Fixed Charges for the period of four (4) consecutive fiscal
quarters ending on or immediately prior to such date to be less than
1.15 to 1.00.
SECTION 9.4. Capital Expenditures. During Fiscal Year 1997,
make Capital Expenditures in excess of [$56,000,000].
SECTION 9.5. Minimum Net Worth. Permit Consolidated Net
Worth at any time to be less than (a) $95,000,000 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 (i) shall be adjusted in a
manner satisfactory to the Managing Agents for any payment required
under the Contingent Interest Agreement and (ii) shall not be reduced if
Consolidated Net Income as of any fiscal quarter end is less than zero.
ARTICLE X
NEGATIVE COVENANTS
Until all of the Obligations have been finally and
indefeasibly paid and satisfied in full and the Commitments terminated,
unless consent has been obtained in the manner set forth in Section
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 (c), (e), (f) and (g) plus the aggregate amount of Debt
constituting Contingent Obligations permitted by Sections 10.2(d), and
(e) shall not at any time exceed $25,000,000.
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(d), (e) and (f) plus
the aggregate outstanding principal amount of all Debt outstanding under
clauses (c), (e), (f) and (g) of Section 10.1 shall not exceed
$25,000,000.
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 which
the period of grace (not to exceed thirty (30) days), if any, related
thereto has not expired or which are being contested in good faith and
by appropriate proceedings if adequate reserves are maintained to the
extent required by GAAP;
(b) the claims of materialmen, mechanics, carriers,
warehousemen, processors or landlords for labor, materials, supplies or
rentals incurred in the ordinary course of business, (i) which are not
overdue for a period of more than thirty (30) days or (ii) which are
being contested in good faith and by appropriate proceedings;
(c) Liens consisting of deposits or pledges made in the
ordinary course of business in connection with, or to secure payment of,
obligations under workers' compensation, unemployment insurance or
similar legislation or obligations (not to exceed $2,000,000) under
customer service contracts;
(d) Liens constituting encumbrances in the nature of zoning
restrictions, easements and rights or restrictions of record on the use
of real property, which in the aggregate are not substantial in amount
and which do not, in any case, materially detract from the value of such
property or impair the use thereof in the ordinary conduct of business;
(e) Liens of the Administrative Agent for the benefit of the
Agents and the Lenders;
(f) 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) intercompany loans by ACC to: (A) ACC Canada in an
aggregate principal amount not to exceed $30,000,000, (B) ACC U.K. in an
aggregate principal amount not to exceed $25,000,000 and (C) ACC LEC in
an aggregate principal amount not to exceed $15,000,000; provided, that
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 (iii) other existing loans, advances and investments described on
Schedule 10.4;
(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 or by any U.K. Borrower or any U.K. 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 acquired are
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 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 and the governing
documentation 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 of four
consecutive fiscal quarters ending immediately prior to the date of
determination thereof to exceed $25,000,000, 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;
(e) loans to employees in the ordinary course of business for
travel and other advanced expenses not to exceed $20,000 with respect to
any individual employee or $200,000 in the aggregate; and
(f) investments by ACC in any Subsidiary organized under the
laws of Germany, which Subsidiary shall engage in the long distance
reselling business and any business related thereto, not to exceed
$5,000,000 in the aggregate; provided that, prior to any such investment
ACC shall have delivered to the Managing Agents the business plan of
such Subsidiary in form and substance reasonably satisfactory to the
Managing Agents.
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 and (c) any Wholly-
Owned Subsidiary may merge into the Person such Wholly-Owned Subsidiary
was formed to acquire in connection with an acquisition permitted by
Section 10.4(c).
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);
(e) the disposition by ACC of any equity ownership interest
in ACC U.K. in connection with any joint venture investments permitted
hereunder which would cause all such dispositions in the aggregate to
exceed 20% of such ownership interest as of the Closing Date, as long as
the Net Cash Proceeds thereof are used to reduce the Aggregate
Commitment in accordance with Section 2.6(c)(ii); and
(f) 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 regarding currency risk exposure in the ordinary
course of business with aggregate notional amounts not to exceed
$75,000,000 and durations not greater than 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 obliga-
tion).
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) or 8.12 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 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 of
Administrative Agent North Carolina
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. 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; and
(vii) the assignee of each such assignment shall execute
and deliver to the Administrative Agent any such supplements
to the Canadian Security Documents and/or additional Canadian
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 agree-
ment with only such Lender, the Borrowers shall be recognized as third
party beneficiaries thereof) to preserve the confidentiality of any
confidential information relating to the Borrowers received from such
Lender.
(h) Certain Pledges or Assignments. Nothing herein shall
prohibit any Lender from pledging or assigning any Note to any Federal
Reserve Bank in accordance with Applicable Law.
SECTION 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, 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. 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 unen-
forceable 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.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their duly authorized officers, all as of
the day and year first written above.
[CORPORATE SEAL] ACC CORP.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President-Finance
[CORPORATE SEAL] ACC LONG DISTANCE CORP.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Controller
[CORPORATE SEAL] ACC NATIONAL TELECOM CORP.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
[CORPORATE SEAL] ACC LONG DISTANCE OF MASSACHUSETTS
CORP.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
[CORPORATE SEAL] ACC GLOBAL CORP.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Controller
[CORPORATE SEAL] ACC RADIO CORP.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Controller
[CORPORATE SEAL] ACC NATIONAL LONG DISTANCE CORP.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
[CORPORATE SEAL] ACC TELENTERPRISES LTD.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Assistant Controller
[CORPORATE SEAL] ACC LONG DISTANCE U.K., LTD.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Attorney
[CORPORATE SEAL] FIRST UNION NATIONAL BANK OF NORTH
CAROLINA, as Administrative Agent,
Managing Agent, Swingline Lender,
Issuing Lender and Lender
By: /s/ ▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇ ▇▇▇▇▇▇
Title: Senior Vice President
[CORPORATE SEAL] FLEET NATIONAL BANK, as Managing
Agent, Documentation Agent and
Lender
By:_________________________________
Name:_______________________________
Title:______________________________
[CORPORATE SEAL] STATE STREET BANK AND TRUST COMPANY
By:_________________________________
Name:_______________________________
Title:______________________________
[CORPORATE SEAL] BANK OF MONTREAL
By:_________________________________
Name:_______________________________
Title:______________________________
EXHIBIT A-1
to
Amended and Restated Credit Agreement
dated as of January 14, 1997
by and among
ACC Corp. and certain Subsidiaries, as Borrowers,
ACC Corp., as Guarantor,
the Lenders party thereto,
First Union National Bank of North Carolina,
as Managing Agent and Administrative Agent,
and
Fleet National Bank,
as Managing Agent and Documentation Agent
AMENDED AND RESTATED REVOLVING CREDIT NOTE
$___________ ______ __, 1997
FOR VALUE RECEIVED, the undersigned, ACC CORP., a corporation
organized under the laws of Delaware, ACC LONG DISTANCE CORP., a
corporation organized under the laws of New York, ACC NATIONAL TELECOM
CORP., a corporation organized under the laws of Delaware, ACC LONG
DISTANCE OF MASSACHUSETTS CORP., a corporation organized under the laws
of Delaware, ACC RADIO CORP., a corporation organized under the laws of
New York, ACC NATIONAL LONG DISTANCE CORP., a corporation organized
under the laws of Delaware, ACC GLOBAL CORP., a corporation organized
under the laws of Delaware, and any other Domestic Borrower party to the
Amended and Restated Credit Agreement hereinafter referred to
(collectively, the "Borrowers"), hereby jointly and severally promise to
pay to the order of _________________________ (the "Bank"), at the
times, at the place and in the manner provided in such Amended and
Restated Credit Agreement, the principal sum of up to
______________________ Dollars ($___________), or, if less, the
aggregate unpaid principal amount of all Loans disbursed to such
Borrowers by the Lenders under such Amended and Restated Credit
Agreement, together with interest at the rates as in effect from time to
time with respect to each portion of the principal amount hereof,
determined and payable as provided in Article IV of such Amended and
Restated Credit Agreement.
This Note is a Note referred to in, and is entitled to the
benefits of, the Amended and Restated Credit Agreement dated as of
_________ __, 1997 as further amended, restated or otherwise modified
(the "Amended and Restated Credit Agreement") by and among ACC Corp. and
certain Subsidiaries thereof, as Borrowers, ACC Corp., as Guarantor,
the Lenders party thereto, First Union National Bank of North Carolina,
as Managing Agent and Administrative Agent, and Fleet National Bank, as
Managing Agent and Documentation Agent. The Amended and Restated Credit
Agreement contains, among other things, provisions for the time, place
and manner of payment of this Note, the determination of the interest
rate borne by and fees payable in respect of this Note, acceleration of
the payment of this Note upon the happening of certain stated events and
the mandatory repayment of this Note under certain circumstances. All
capitalized terms used herein and not otherwise defined herein shall
have the meaning assigned thereto in the Amended and Restated Credit
Agreement.
The Borrowers agree to pay on demand all costs of collection,
including reasonable attorneys' fees, if any part of this Note,
principal or interest, is collected after maturity with the aid of an
attorney.
Diligence, presentment for payment, notice of dishonor,
protest and notice of any kind (other than as explicitly required by the
Amended and Restated Credit Agreement) are hereby waived.
THIS NOTE IS MADE AND DELIVERED IN THE STATE OF NORTH CAROLINA
AND SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF
THE STATE OF NORTH CAROLINA.
The Debt evidenced by this Note is senior in right of payment
to all Subordinated Debt referred to in the Amended and Restated Credit
Agreement.
[This Note is an amendment and restatement of, and not a
prepayment of, the Revolving Credit Note payable by the Borrowers to the
order of the Bank pursuant to the Original Credit Agreement.]
/FN
Included in Notes of Original Lenders only.
IN WITNESS WHEREOF, the Borrowers have caused this Note to be
executed under seal by a duly authorized officer as of the day and year
first above written.
ACC CORP.
[CORPORATE SEAL]
By: _____________________________
Name:_________________________
Title:________________________
ACC LONG DISTANCE CORP.
[CORPORATE SEAL]
By: _____________________________
Name:_________________________
Title:________________________
ACC NATIONAL TELECOM CORP.
[CORPORATE SEAL]
By: _____________________________
Name:_________________________
Title:________________________
ACC LONG DISTANCE OF MASSACHUSETTS
CORP.
[CORPORATE SEAL]
By: _____________________________
Name:_________________________
Title:________________________
ACC RADIO CORP.
[CORPORATE SEAL]
By: _____________________________
Name:_________________________
Title:________________________
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
ACC NATIONAL LONG DISTANCE CORP.
[CORPORATE SEAL]
By: _____________________________
Name:_________________________
Title:________________________
ACC GLOBAL CORP.
[CORPORATE SEAL]
By: _____________________________
Name:_________________________
Title:________________________
EXHIBIT A-2
to
Amended and Restated Credit Agreement
dated as of January 14, 1997
by and among
ACC Corp. and certain Subsidiaries, as Borrowers,
ACC Corp., as Guarantor,
the Lenders party thereto,
First Union National Bank of North Carolina,
as Managing Agent and Administrative Agent,
and
Fleet National Bank,
as Managing Agent and Documentation Agent
AMENDED AND RESTATED REVOLVING CREDIT NOTE
$___________ _____ __, 1997
(or the equivalent
thereof described
below)
FOR VALUE RECEIVED, the undersigned, ACC LONG DISTANCE U.K.,
LTD., a corporation organized under the laws of the United Kingdom, and
any other U.K. Borrower party to the Amended and Restated Credit
Agreement hereinafter referred to (collectively, the "Borrowers"),
hereby jointly and severally promise to pay to the order of
__________________________ (the "Bank"), at the times, at the place and
in the manner provided in such Amended and Restated Credit Agreement,
the principal sum of up to ______________________ Dollars
($___________), (or the applicable Alternative Currency Amount then
outstanding under this Note) or, if less, the aggregate unpaid principal
amount of all Loans disbursed to the Borrowers by the Lenders under such
Amended and Restated Credit Agreement, together with interest at the
rates as in effect from time to time with respect to each portion of the
principal amount hereof, determined and payable as provided in Article
IV of such Amended and Restated Credit Agreement.
This Note is a Note referred to in, and is entitled to the
benefits of, the Amended and Restated Credit Agreement dated as of _____
__, 1997 as further amended, restated or otherwise modified (the
"Amended and Restated Credit Agreement") by and among ACC Corp. and
certain Subsidiaries, as Borrowers, ACC Corp., as Guarantor, the
Lenders party thereto, First Union National Bank of North Carolina, as
Managing Agent and Administrative Agent, and Fleet National Bank, as
Managing Agent and Documentation Agent. The Amended and Restated Credit
Agreement contains, among other things, provisions for the time, place
and manner of payment of this Note, the determination of the interest
rate borne by and fees payable in respect of this Note, acceleration of
the payment of this Note upon the happening of certain stated events and
the mandatory repayment of this Note under certain circumstances. All
capitalized terms used herein and not otherwise defined herein shall
have the meaning assigned thereto in the Amended and Restated Credit
Agreement.
The Borrowers agree to pay on demand all costs of collection,
including reasonable attorneys' fees, if any part of this Note,
principal or interest, is collected after maturity with the aid of an
attorney.
Diligence, presentment for payment, notice of dishonor,
protest and notice of any kind (other than as explicitly required by the
Amended and Restated Credit Agreement) are hereby waived.
THIS NOTE IS MADE AND DELIVERED IN THE STATE OF NORTH CAROLINA
AND SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF
THE STATE OF NORTH CAROLINA.
The Debt evidenced by this Note is senior in right of payment
to all Subordinated Debt referred to in the Credit Agreement.
[This Note is an amendment and restatement of, and not a
prepayment of, the Revolving Credit Note payable by the Borrowers to the
order of the Bank pursuant to the Original Credit Agreement.]
/FN
Included in Notes of Original Lenders only.
IN WITNESS WHEREOF, the Borrowers have caused this Note to be
executed under seal by a duly authorized officer as of the day and year
first above written.
EXECUTION
The Borrower
THE COMMON SEAL of )
ACC LONG DISTANCE )
U.K., LTD. was )
hereunto affixed )
to this deed )
in the presence of: )
Director: ____________________________
Full Name: ___________________________
Director/
Secretary: ___________________________
Full Name: ___________________________
EXHIBIT A-3
to
Amended and Restated Credit Agreement
dated as of January 14, 1997
by and among
ACC Corp. and certain Subsidiaries, as Borrowers,
ACC Corp., as Guarantor,
the Lenders party thereto,
First Union National Bank of North Carolina,
as Managing Agent and Administrative Agent,
and
Fleet National Bank,
as Managing Agent and Documentation Agent
REVOLVING CREDIT NOTE
$___________ _____ __, 1997
(or the equivalent
thereof described
below)
FOR VALUE RECEIVED, the undersigned, ACC TELENTERPRISES LTD.,
a corporation organized under the laws of Ontario, and any other
Canadian Borrower party to the Amended and Restated Credit Agreement
hereinafter referred to (the "Borrowers"), hereby jointly and severally
(subject to Section 2.9 of the Amended and Restated Credit Agreement)
promise to pay to the order of __________________________ (the "Bank"),
at the times, at the place and in the manner provided in such Amended
and Restated Credit Agreement, the principal sum of up to
______________________ Dollars ($___________), (or the applicable
Alternative Currency Amount then outstanding under this Note) or, if
less, the aggregate unpaid principal amount of all Loans disbursed to
the Borrowers by the Lenders under such Amended and Restated Credit
Agreement, together with interest at the rates as in effect from time to
time with respect to each portion of the principal amount hereof,
determined and payable as provided in Article IV of such Amended and
Restated Credit Agreement.
This Note is a Note referred to in, and is entitled to the
benefits of, the Amended and Restated Credit Agreement dated as of _____
__, 1997 (as further amended, restated or otherwise modified (the
"Amended and Restated Credit Agreement") by and among ACC Corp. and
certain Subsidiaries, as Borrowers, ACC Corp., as Guarantor, the
Lenders party thereto, First Union National Bank of North Carolina, as
Managing Agent and Administrative Agent, and Fleet National Bank, as
Managing Agent and Documentation Agent. The Amended and Restated Credit
Agreement contains, among other things, provisions for the time, place
and manner of payment of this Note, the determination of the interest
rate borne by and fees payable in respect of this Note, acceleration of
the payment of this Note upon the happening of certain stated events and
the mandatory repayment of this Note under certain circumstances. All
capitalized terms used herein and not otherwise defined herein shall
have the meaning assigned thereto in the Amended and Restated Credit
Agreement.
The Borrowers agree to pay on demand all costs of collection,
including reasonable attorneys' fees, if any part of this Note,
principal or interest, is collected after maturity with the aid of an
attorney.
Diligence, presentment for payment, notice of dishonor,
protest and notice of any kind (other than as explicitly required by the
Amended and Restated Credit Agreement) are hereby waived.
THIS NOTE IS MADE AND DELIVERED IN THE STATE OF NORTH CAROLINA
AND SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF
THE STATE OF NORTH CAROLINA.
The Debt evidenced by this Note is senior in right of payment
to all Subordinated Debt referred to in the Credit Agreement.
IN WITNESS WHEREOF, the Borrowers have caused this Note to be
executed under seal by a duly authorized officer as of the day and year
first above written.
ACC TELENTERPRISES LTD.
[CORPORATE SEAL]
By: _____________________________
Name:_________________________
Title:________________________
EXHIBIT A-4
to
Amended and Restated Credit Agreement
dated as of January 14, 1997
by and among
ACC Corp. and certain Subsidiaries, as Borrowers,
ACC Corp., as Guarantor,
the Lenders party thereto,
First Union National Bank of North Carolina,
as Managing Agent and Administrative Agent,
and
Fleet National Bank,
as Managing Agent and Documentation Agent
SWINGLINE NOTE
$ _____________ ___, 1997
FOR VALUE RECEIVED, the undersigned, ACC CORP., a corporation
organized under the laws of Delaware, ACC LONG DISTANCE CORP., a
corporation organized under the laws of New York, ACC NATIONAL TELECOM
CORP., a corporation organized under the laws of Delaware, ACC LONG
DISTANCE OF MASSACHUSETTS CORP., a corporation organized under the laws
of Delaware, ACC RADIO CORP., a corporation organized under the laws of
New York, ACC NATIONAL LONG DISTANCE CORP., a corporation organized
under the laws of Delaware and any other Domestic Borrower party to the
Amended and Restated Credit Agreement hereinafter referred to (the
"Borrowers"), hereby jointly and severally promise to pay to the order
of _____________________ (the "Bank"), at the times, at the place and in
the manner provided in such Amended and Restated Credit Agreement, the
principal sum of up to Three Million Dollars ($3,000,000), or, if less,
the aggregate unpaid principal amount of all Swingline Loans disbursed
by the Bank under such Amended and Restated Credit Agreement, together
with interest at the rates as in effect from time to time with respect
to each portion of the principal amount hereof, determined and payable
as provided in Article IV of such Amended and Restated Credit Agreement.
This Note is the Swingline Note referred to in, and is
entitled to the benefits of, the Amended and Restated Credit Agreement
dated as of ____________, 1997 (as amended, restated or otherwise
modified, the "Amended and Restated Credit Agreement") by and among ACC
Corp. and certain Subsidiaries thereof, as Borrowers, ACC Corp., as
Guarantor, the Lenders party thereto, First Union National Bank of North
Carolina, as Managing Agent and Administrative Agent, and Fleet National
Bank, as Managing Agent and Documentation Agent. The Amended and
Restated Credit Agreement contains, among other things, provisions for
the time, place and manner of payment of this Note, the determination of
the interest rate borne by and fees payable in respect of this Note,
acceleration of the payment of this Note upon the happening of certain
stated events and the mandatory repayment of this Note under certain
circumstances. All capitalized terms used herein and not otherwise
defined herein shall have the meaning assigned thereto in the Amended
and Restated Credit Agreement.
The Borrowers agree to pay on demand all costs of collection,
including reasonable attorneys' fees, if any part of this Note,
principal or interest, is collected after maturity with the aid of an
attorney.
Diligence, presentment for payment, notice of dishonor,
protest and notice of any kind (other than as explicitly required by the
Amended and Restated Credit Agreement) are hereby waived.
THIS NOTE IS MADE AND DELIVERED IN THE STATE OF NORTH CAROLINA
AND SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF
THE STATE OF NORTH CAROLINA.
The Debt evidenced by this Note is senior in right of payment
to all Subordinated Debt referred to in the Credit Agreement.
IN WITNESS WHEREOF, the Borrowers have caused this Note to be
executed under seal by a duly authorized officer as of the day and year
first above written.
ACC CORP.
[CORPORATE SEAL]
By: _____________________________
Name:_________________________
Title:________________________
ACC LONG DISTANCE CORP.
[CORPORATE SEAL]
By: _____________________________
Name:_________________________
Title:________________________
ACC NATIONAL TELECOM CORP.
[CORPORATE SEAL]
By: _____________________________
Name:_________________________
Title:________________________
ACC LONG DISTANCE OF MASSACHUSETTS
CORP.
[CORPORATE SEAL]
By: _____________________________
Name:_________________________
Title:________________________
ACC GLOBAL CORP.
[CORPORATE SEAL]
By: _____________________________
Name:_________________________
Title:________________________
ACC RADIO CORP.
[CORPORATE SEAL]
By: _____________________________
Name:_________________________
Title:________________________
ACC NATIONAL LONG DISTANCE CORP.
[CORPORATE SEAL]
By: _____________________________
Name:_________________________
Title:________________________
EXHIBIT B
to
Amended and Restated Credit Agreement
dated as of January 14, 1997
by and among
ACC Corp. and certain Subsidiaries, as Borrowers,
ACC Corp., as Guarantor,
the Lenders party thereto,
First Union National Bank of North Carolina,
as Managing Agent and Administrative Agent,
and
Fleet National Bank,
as Managing Agent and Documentation Agent
NOTICE OF BORROWING
First Union National Bank
of North Carolina, as Managing Agent
and Administrative Agent
One First Union Center
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Attn: Syndication Agency Services
Ladies and Gentlemen:
This irrevocable Notice of Borrowing is delivered to you by the
undersigned Borrower(s) under Section 2.3(a) of the Amended and Restated
Credit Agreement dated as of _____ __, 1997 (as amended, restated or
otherwise modified, the "Amended and Restated Credit Agreement"), by and
among ACC Corp. and certain Subsidiaries, as Borrowers, ACC Corp., as
Guarantor, the Lenders party thereto, First Union National Bank of North
Carolina, as Managing Agent and Administrative Agent, and Fleet National
Bank, as Managing Agent and Documentation Agent.
1. ACC Corp. on behalf of the [Domestic Borrowers] [Canadian
Borrowers] [U.K. Borrowers] hereby requests that the Lenders make a Loan
denominated in [Dollars] [Canadian Dollars] [Sterling] in the aggregate
principal amount of $___________ (the "Loan"). (Insert applicable Borrowers
and Permitted Currency therefor in accordance with Section 2.1 or 2.2(a),
as applicable, and a minimum amount in accordance with Section 2.3)
2. ACC Corp. on behalf of the applicable Borrowers hereby
requests that the Loan be made on the following Business Day:
_____________________. (Complete with a date (A) on or prior to the same
Business Day of this notice for each Swingline Loan, (B) at least one Business
Day after the date of this notice for each Base Rate Loan denominated in
Dollars, (C) at least two Business Days after the date of this notice for
each Base Rate Loan denominated in an Alternative Currency, (D) at least
three (3) Business Days after the date of this notice for each LIBOR Rate
Loan denominated in Dollars and (E) at least four (4) Business Days after the
date of this notice for each LIBOR Rate Loan to be denominated in an Alternative
Currency.)
3. ACC Corp. on behalf of the applicable Borrowers hereby
requests that the Loan be a __________________ Loan. (Complete with either
"Revolving Credit" or "Swingline" in accordance with 2.3.)
4. ACC Corp. on behalf of the applicable Borrowers hereby
requests that the Loan bear interest at the following interest rate,
plus the Applicable Margin, as set forth below:
Termination
Date for
Principal Interest Interest
Component Interest Period Period (if
of Loan Rate (LIBOR Rate only) applicable)
[Base Rate
or LIBOR
Rate] [One, two, three
or six months]
5. The principal amount of all Loans outstanding as of the date
hereof (including the requested Loan) does not exceed the maximum amount
permitted to be outstanding pursuant to the terms of the Amended and
Restated Credit Agreement.
6. All of the conditions applicable to the Loan requested herein
as set forth in the Amended and Restated Credit Agreement have been
satisfied as of the date hereof and will remain satisfied to the date of
such Loan.
7. No Default or Event of Default exists, and none will exist
upon the making of the Loan requested herein.
8. All capitalized undefined terms used herein have the meanings
assigned thereto in the Amended and Restated Credit Agreement.
/FN
Revolving Credit Loans denominated in Dollars may bear interest at
the Base Rate or LIBOR Rate; Revolving credit Loans denominated in an
Alternative Currency shall bear interest at the LIBOR Rate; and
Swingline Loans shall bear interest at the Base Rate, in each case
plus the Applicable margin in accordance with Section 4.1.
IN WITNESS WHEREOF, the undersigned has executed this Notice of
Borrowing this ____ day of _______, 19__.
ACC CORP.
By: __________________________________
Name:______________________________
Title:_____________________________
EXHIBIT C
to
Amended and Restated Credit Agreement
dated as of January 14, 1997
by and among
ACC Corp. and certain Subsidiaries, as Borrowers,
ACC Corp., as Guarantor,
the Lenders party thereto,
First Union National Bank of North Carolina,
as Managing Agent and Administrative Agent,
and
Fleet National Bank,
as Managing Agent and Documentation Agent
NOTICE OF PREPAYMENT
First Union National Bank
of North Carolina, as Managing Agent
and Administrative Agent
One First Union Center
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Attn: Syndication Agency Services
Ladies and Gentlemen:
This irrevocable Notice of Prepayment is delivered to you by
____________________________, a corporation organized under the laws of
_______________ (the "Borrower"), under Section 2.4(d) of the Amended
and Restated Credit Agreement dated as of _____________ ___, 1997 as
amended, restated or otherwise modified (the "Amended and Restated
Credit Agreement"), by and among ACC Corp. and certain Subsidiaries, as
Borrowers, ACC Corp., as Guarantor, the Lenders party thereto, First
Union National Bank of North Carolina, as Managing Agent and
Administrative Agent, and Fleet National Bank, as Managing Agent and
Documentation Agent.
1. ACC Corp. hereby provides notice to the Agent that the [Insert
Domestic Borrowers, Canadian Borrowers or U.K. Borrowers, as applicable]
shall repay the following [Base Rate Loans] and/or [LIBOR Rate Loans] :
____________________.
2. The [Insert Domestic Borrowers, Canadian Borrowers or U.K.
Borrowers, as applicable] shall repay the above referenced Loans on the
following Business Day: _______________.
3. All capitalized undefined terms used herein have the meanings
assigned thereto in the Amended and Restated Credit Agreement.
IN WITNESS WHEREOF, the undersigned has executed this Notice of
Prepayment this ____ day of _______, 19__.
ACC CORP.
[CORPORATE SEAL]
By:_____________________________
Name:________________________
Title:_______________________
/FN
Complete with an amount in accordance with Section 2.4(d) of the
Amended and Restated Credit Agreement.
/FN
Complete with a Business Day in accordance with Section 2.4(d) of the
Amended and Restated Credit Agreement.
EXHIBIT D
to
Amended and Restated Credit Agreement
dated as of January 14, 1997
by and among
ACC Corp. and certain Subsidiaries, as Borrowers,
ACC Corp., as Guarantor,
the Lenders party thereto,
First Union National Bank of North Carolina,
as Managing Agent and Administrative Agent,
and
Fleet National Bank,
as Managing Agent and Documentation Agent
NOTICE OF CONVERSION/CONTINUATION
First Union National Bank
of North Carolina, as Managing Agent
and Administrative Agent
One First Union Center, TW-10
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Attn: Syndication Agency Services
Ladies and Gentlemen:
This irrevocable Notice of Conversion/Continuation is delivered to
you by ACC Corp. on behalf of [Insert Domestic Borrowers, Canadian
Borrowers or U.K. Borrowers, as applicable] under Section 4.2 of the
Amended and Restated Credit Agreement dated as of __________ , 1997
(as amended, restated or otherwise modified, the "Amended and Restated
Credit Agreement"), by and among ACC Corp. and certain Subsidiaries, as
Borrowers, ACC Corp., as Guarantor, the Lenders party thereto, First
Union National Bank of North Carolina, as Managing Agent and
Administrative Agent, and Fleet National Bank, as Managing Agent and
Documentation Agent.
/FN
This Notice is applicable only to Revolving Credit Loans.
1. This Notice of Conversion/Continuation is submitted for the
purpose of: (Check one and complete applicable information in accordance with
Section 4.2.)
/ / Converting a Base Rate Loan into a LIBOR Rate Loan denominated
in Dollars
(a) The aggregate outstanding principal balance of such Loan
is $_______________.
(b) The principal amount of such Loan to be converted is
$_______________.
(c) The requested effective date of the conversion of such
Loan is _______________.
(d) The requested Interest Period applicable to the converted
Loan is _______________.
/ / Converting a LIBOR Rate Loan denominated in Dollars into a
Base Rate Loan
(a) The aggregate outstanding principal balance of such Loan
is $_______________.
(b) The last day of the current Interest Period for such Loan
is _______________.
(c) The principal amount of such Loan to be converted is
$_______________.
(d) The requested effective date of the conversion of such
Loan is _______________.
/ / Continuing a LIBOR Rate Loan as a LIBOR Rate Loan
(a) Such Loan is denominated in [Insert Permitted Currency]
and the Dollar Amount of aggregate outstanding principal
balance of such Loan is $_______________.
(b) The last day of the current Interest Period for such Loan
is _______________.
(c) The principal amount of such Loan to be continued is
$_______________.
(d) The requested effective date of the continuation of such
Loan is _______________.
(e) The requested Interest Period applicable to the continued
Loan is _______________.
2. The principal amount of all Loans outstanding as of the date
hereof does not exceed the maximum amount permitted to be outstanding
pursuant to the terms of the Amended and Restated Credit Agreement.
3. All of the conditions applicable to the conversion or
continuation of the Loan requested herein as set forth in the Amended
and Restated Credit Agreement have been satisfied as of the date hereof
and will remain satisfied to the date of such Loan.
4. No Default or Event of Default exists, and none will exist
upon the conversion or continuation of the Loan requested herein.
5. All capitalized undefined terms used herein have the meanings
assigned thereto in the Amended and Restated Credit Agreement.
IN WITNESS WHEREOF, the undersigned has executed this Notice of
Conversion/Continuation this ____ day of __________, 19__.
ACC CORP.
By: __________________________________
Name:______________________________
Title:_____________________________
EXHIBIT E
to
Amended and Restated Credit Agreement
dated as of January 14, 1997
by and among
ACC Corp. and certain Subsidiaries, as Borrowers,
ACC Corp., as Guarantor,
the Lenders party thereto,
First Union National Bank of North Carolina,
as Managing Agent and Administrative Agent,
and
Fleet National Bank,
as Managing Agent and Documentation Agent
OFFICER'S COMPLIANCE CERTIFICATE
The undersigned, on behalf of ACC Corp., a corporation organized
under the laws of Delaware (the "Borrower"), hereby certifies to First
Union National Bank of North Carolina, as Managing Agent and
Administrative Agent ("First Union"), and Fleet National Bank, as
Managing Agent and Documentation Agent ("Fleet"), as follows:
1. This Certificate is delivered to you pursuant to Section 7.2
of the Amended and Restated Credit Agreement dated as of _____ , 1997
(as amended, restated or otherwise modified, the "Amended and Restated
Credit Agreement"), by and among the Borrower, and certain Subsidiaries,
as Borrowers, ACC Corp., as Guarantor ("ACC"), the Lenders party
thereto, First Union National Bank of North Carolina, as Managing Agent
and Administrative Agent, and Fleet National Bank, as Managing Agent and
Documentation Agent. Capitalized terms used herein and not defined
herein shall have the meanings assigned thereto in the Amended and
Restated Credit Agreement.
2. I have reviewed the financial statements of ACC and its
Subsidiaries dated as of _______________ and for the _______________
period[s] then ended and such statements fairly present the financial
condition of ACC and its Subsidiaries, as applicable, as of the dates
indicated and the results of their operations and cash flows for the
period[s] indicated.
3. I have reviewed the terms of the Amended and Restated Credit
Agreement, the Notes and the related Loan Documents and have made, or
caused to be made under my supervision, a review in reasonable detail of
the transactions and the condition of ACC and its Subsidiaries during
the accounting period covered by the financial statements referred to in
Paragraph 2 above. Such review has not disclosed the existence during
or at the end of such accounting period of any condition or event that
constitutes a Default or an Event of Default, nor do I have any
knowledge of the existence of any such condition or event as at the date
of this Certificate [except, [if such condition or event existed or
exists, describe the nature and period of existence thereof and what
action the Borrowers have taken, are taking and propose to take with
respect thereto]].
4. Excess Cash Flow, the Applicable Margin and calculations
determining such figures are set forth on the attached Schedule 1 and
the Borrowers and their Subsidiaries are in compliance with the
covenants contained in Article IX of the Amended and Restated Credit
Agreement as shown on such Schedule 1 and the Borrowers and their
Subsidiaries are in compliance with the other covenants and restrictions
contained in Articles VIII and X of the Amended and Restated Credit
Agreement.
WITNESS the following signature as of the _____ day of _________,
199_.
ACC CORP.
By: __________________________________
Name:______________________________
Title:_____________________________
Schedule 1
A. Leverage Ratio
1. Total Debt as of the immediately
preceding fiscal quarter end 1 _______
2. Operating Cash Flow for the
period of [two (2) quarters ending
on such fiscal quarter end times
two (2)] or [four (4) consecutive
fiscal quarters ending on such
fiscal quarter end]
(a) Net Income
for such period 2(a) _______
(b) Plus: The sum of the
following for such period
to the extent deducted in
the determination of such
Net Income: (i) income
and franchise taxes, (ii)
Interest Expense, and
(iii) amortization and
depreciation and other
non-cash charges 2(b) _______
(c) Less: The sum of the
following for such period:
(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)
included in the determi-
nation of Net Income and
not realized in the ordinary
course of business 2(c) _______
/FN
Delete brackets in Schedule 1 in accordance with Article IX of the
Amended and Restated Credit Agreement.
(d) Add lines 2(a) and 2(b)
and subtract line 2(c) 2(d) _______
3. Leverage Ratio: Divide line 1
by line 2(d) 3 _______
4. Maximum Ratio Permitted by
Section 9.1 as of the date
hereof 4 _______
B. Pro Forma Debt Service Coverage Ratio
1. Operating Cash Flow for the
period of [two (2) quarters ending
on such fiscal quarter end times
two (2)] or [four (4) consecutive
fiscal quarters ending on such
fiscal quarter end](from line 2(d)
of Part A) 1 _______
2. Pro Forma Debt Service: The sum of the
following calculated without
duplication on a Consolidated pro forma
basis for the immediately succeeding
period of four (4) consecutive fiscal
quarters
(a) All payments of principal
or similar amounts required
to be paid with respect to
Total Debt 2(a) _______
(b) Plus: Interest Expense
2(b) _______
(c) Add lines 2(a) and 2(b) 2(c) _______
3. Pro Forma Debt Service Coverage Ratio:
Divide line 1 by line 2(c) 3 _______
4. Minimum Permitted Ratio per
Section 9.2 1.50 to
1.00.
/FN
Delete brackets in Schedule 1 in accordance with Article IX of the
Amended and Restated Credit Agreement.
C. Fixed Charge Coverage Ratio
1. Operating Cash Flow for the
period of [two (2) quarters ending
on such fiscal quarter end times
two (2)] or [four (4) consecutive
fiscal quarters ending on such
fiscal quarter end] (from line 2(d)
of Part A) 1 _______
2. Fixed Charges for such period.
(a) All principal payments or
similar amounts required to
be paid respect to Total
Debt during such period 2(a) _______
(b) Plus: Interest Expense
required to be paid 2(b) _______
during such period
(c) Plus: Total cash dividends
or distributions
paid or payable by ACC during
such period 2(c) _______
(d) Plus: All payments in
respect of any retirement,
redemption or other acqui-
sition of the capital stock
of ACC and its Subsidiaries 2(d) _______
consummated during such period
(e) Plus: All Capital Expenditures
during such period 2(e) _______
(f) Plus: All income and franchise
taxes paid or payable in cash
during such period 2(f) _______
(g) Add lines 2(a), 2(b), 2(c),
2(d), 2(e) and 2(f) 2(g) _______
/FN
Delete brackets in Schedule 1 in accordance with Article IX of the
Amended and Restated Credit Agreement.
3. Fixed Charge Coverage Ratio:
Divide line 1 by line 2(g) 3 _______
6. Maximum Permitted Ratio per
Section 9.3 1.15 to
1.00
D. Net Worth
1. Fifty percent (50%) of Consol-
idated Net Income of ACC and its
Subsidiaries
(a) Less total debits with respect to
deferred interest payments
recorded for the Fleet Venture
Investment for such period
(not to exceed $1,200,000)
as of each fiscal quarter
end occurring after the
Closing Date 1 _______
2. 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 2 _______
3. Minimum Net Worth: Add
$95,000,000, line 1, and
line 2 3 _______
4. Actual Net Worth 4 _______
E. Excess Cash Flow
For any Fiscal Year of ACC and its
Subsidiaries, on a Consolidated basis
1. Operating Cash Flow for such period 1 __________
(a) Plus Net Working Capital
(if negative), ___________
(b) Less the sum of:
(i) Fixed Charges ___________
(ii) Net Working Capital
(if positive) ____________
(iii) Any payments to the Managing
Agents pursuant to the
Letter Agreement ____________
Total ____________
G. Applicable Margin
1. Leverage Ratio (as calculated
in Part A above) 1 _______
2. Applicable Margin per Section
4.1 2 _______
EXHIBIT F
to
Amended and Restated Credit Agreement
dated as of January 14, 1997
by and among
ACC Corp. and certain Subsidiaries, as Borrowers,
ACC Corp., as Guarantor,
the Lenders party thereto,
First Union National Bank of North Carolina,
as Managing Agent and Administrative Agent,
and
Fleet National Bank,
as Managing Agent and Documentation Agent
NOTICE OF ACCOUNT DESIGNATION
Dated _________
First Union National Bank
of North Carolina, as Managing Agent
and Administrative Agent
One First Union Center, TW-10
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Attn: Syndication Agency Services
Ladies and Gentlemen:
This Notice of Account Designation is delivered to you by ACC Corp.
on behalf of the Borrowers under Section 5.2(f)(i) of the Amended and
Restated Credit Agreement dated as of _______ ___, 1997 (as amended,
restated or otherwise modified, the "Amended and Restated Credit
Agreement") by and among ACC Corp. and certain Subsidiaries, as
Borrowers, ACC Corp., as Guarantor, the Lenders party thereto, First
Union National Bank of North Carolina, as Managing Agent and
Administrative Agent, and Fleet National Bank, as Managing Agent and
Documentation Agent.
The Agent is hereby authorized to disburse Loan proceeds to the
following Borrowers into the corresponding account(s):
Domestic Borrowers [Insert name of bank/
ABA Routing Number/
and Account Number]
Canadian Borrowers [Insert name of bank/
ABA Routing Number/
and Account Number]
U.K. Borrowers [Insert name of bank/
ABA Routing Number/
and Account Number]
IN WITNESS WHEREOF, the undersigned has executed this Notice of
Account Designation this _____ day of _______, 19__.
[CORPORATE SEAL] ACC CORP.
By: ________________________________
Name: _________________________
Title: _________________________
EXHIBIT G
to
Amended and Restated Credit Agreement
dated as of January 14, 1997
by and among
ACC Corp. and certain Subsidiaries, as Borrowers,
ACC Corp., as Guarantor,
the Lenders party thereto,
First Union National Bank of North Carolina,
as Managing Agent and Administrative Agent,
and
Fleet National Bank,
as Managing Agent and Documentation Agent
ASSIGNMENT AND ACCEPTANCE
Dated _________
Reference is made to the Amended and Restated Credit Agreement
dated as of _________ ___, 1997 (as further amended, restated or
otherwise modified, the "Amended and Restated Credit Agreement"), by and
among ACC Corp. and certain Subsidiaries, as Borrowers, ACC Corp., as
Guarantor, the Lenders party thereto, First Union National Bank of North
Carolina, as Managing Agent and Administrative Agent, and Fleet National
Bank, as Managing Agent and Documentation Agent. Capitalized terms
which are defined in the Amended and Restated Credit Agreement and which
are used herein without definition shall have the same meanings herein
as in the Amended and Restated Credit Agreement.
______________________________________ (the "Assignor") and
____________________________________ (the "Assignee") agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and the
Assignee hereby purchases and assumes from the Assignor, as of the
Effective Date (as defined below), a ____% interest (the "Assigned
Interest") in and to all of the Assignor's interests, rights and
obligations under the Amended and Restated Credit Agreement, and the
Assignor thereby retains ____% of its interest therein (the "Retained
Interest"). This Assignment and Acceptance is entered pursuant to, and
authorized by, Section 14.10 of the Amended and Restated Credit
Agreement.
2. The Assignor (a) represents that, as of the date hereof, (i)
its Commitment Percentage (without giving effect to assignments thereof
which have not yet become effective) under the Amended and Restated
Credit Agreement, (ii) the outstanding balance of its Revolving Credit
Loans (unreduced by any assignments thereof which have not yet become
effective) under the Amended and Restated Credit Agreement, (iii) the
outstanding balance of its Swingline Loans (unreduced by any assignments
thereof which have not yet become effective), and (iv) the outstanding
balance of its Commitment Percentage of the L/C Obligations (unreduced
by any assignments thereof which have not yet become effective) are each
set forth in Section 2 of Schedule I hereto; (b) makes no representation
or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with
the Amended and Restated Credit Agreement or any other Loan Document or
the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Amended and Restated Credit Agreement or any
other instrument or document furnished pursuant thereto, other than that
the Assignor is the legal and beneficial owner of the interest being
assigned by it hereunder and that such interest is free and clear of any
adverse claim; (c) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Borrowers
or the performance or observance by the Borrowers of any of their
obligations under the Amended and Restated Credit Agreement or any other
Loan Document; and (d) attaches the Revolving Credit Note [and/or any
Swingline Note, as applicable] delivered to it under the Amended and
Restated Credit Agreement and requests that the Borrowers exchange such
[Note][Notes] for new Notes payable to each of the Assignor and the
Assignee as follows:
Revolving Credit Note
Payable to the Order of: Principal Amount of Note:
______________________ $_________
______________________ $_________
Swingline Note
Payable to the Order of: Principal Amount of Note:
______________________ $_________
3. The Assignee (a) represents and warrants that it is legally
authorized to enter into this Assignment and Acceptance; (b) confirms
that it has received a copy of the Amended and Restated Credit
Agreement, together with copies of the most recent financial statements
delivered pursuant to Section 7.1 thereof and such other documents and
information as it has deemed appropriate to make its own credit analysis
and decision to enter into this Assignment and Acceptance; (c) agrees
that it will, independently and without reliance upon the Assignor or
any other Lender or the Administrative Agent 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 the
Amended and Restated Credit Agreement; (d) confirms that it is an
Eligible Assignee; (e) appoints and authorizes the Administrative Agent
to take such action as agent on its behalf and to exercise such powers
under the Amended and Restated Credit Agreement and the other Loan
Documents as are delegated to the agent by the terms thereof, together
with such powers as are reasonably incidental thereto; (f) agrees that
it will perform in accordance with their terms all the obligations which
by the terms of the Amended and Restated Credit Agreement and the other
Loan Documents are required to be performed by it as a Lender; and (g)
agrees that it will keep confidential all non-public information with
respect to the Borrowers obtained pursuant to the Loan Documents in
accordance with Section 14.10(g) of the Amended and Restated Credit
Agreement.
4. The effective date for this Assignment and Acceptance shall be
as set forth in Section 1 of Schedule I hereto (the "Effective Date").
Following the execution of this Assignment and Acceptance, it will be
delivered to the Administrative Agent for consent thereby and by the
Borrowers and acceptance and recording in the Register.
5. Upon such consents, acceptance and recording, from and after
the Effective Date, (i) the Assignee shall be a party to the Amended and
Restated Credit Agreement and the other Loan Documents to which Lenders
are parties and, to the extent provided in this Assignment and
Acceptance, have the rights and obligations of a Lender under each such
agreement, and (ii) the Assignor shall, to the extent provided in this
Assignment and Acceptance, relinquish its rights and be released from
its obligations under the Amended and Restated Credit Agreement and the
other Loan Documents.
6. Upon such consents, acceptance and recording, from and after
the Effective Date, the Administrative Agent shall make all payments in
respect of the interest assigned hereby (including payments of
principal, interest, fees and other amounts) to the Assignee. The
Assignor and Assignee shall make all appropriate adjustments in payments
for periods prior to the Effective Date or with respect to the making of
this assignment directly between themselves.
7. THIS ASSIGNMENT AND ACCEPTANCE SHALL BE DEEMED TO BE A
CONTRACT UNDER SEAL AND SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NORTH CAROLINA, WITHOUT REGARD TO CONFLICT
OF LAW PRINCIPLES.
ASSIGNOR
_________________________________
Commitment Percentage ____%
By:______________________________
Title:___________________________
ASSIGNEE
_________________________________
Commitment Percentage ____%
By:______________________________
Title:___________________________
Acknowledged and Consented to:
FIRST UNION NATIONAL BANK OF NORTH CAROLINA,
as Managing Agent and Administrative Agent
By:____________________________________
Title:______________________________
[ACC CORP., on behalf of itself and the other Borrowers]
By:____________________________________
Title:______________________________
Schedule I
to
Assignment and Acceptance
1. Effective Date _________________, ____
2. Assignor's Interest
Prior to Assignment
(a) Commitment Percentage
of Assignor ______%
(b) Outstanding balance
of Assignor's
Revolving Credit Loans $____________
(c) Outstanding balance of
Assignor's Swingline
Loans $____________
(d) Outstanding balance of
Assignor's Commitment
Percentage of the L/C
Obligations $____________
3. Assigned Interest
(from Section 1) ______%
4. Assignee's Extensions of Credit
After Effective Date
(a) Outstanding balance of
Assignee's Revolving
Credit Loans
(line 2(b) times line 3) $____________
(b) Outstanding balance of Assignee's
Commitment Percentage of L/C
Obligations (line 2(c) times
line 3) $____________
5. Retained Interest of Assignor after
Effective Date
(a) Retained Interest (from Section 1) ______%
(b) Outstanding balance of Assignor's
Revolving Credit Loans
(line 2(b) times line 5(a)) $_____________
(c) Outstanding balance of Assignor's
Commitment Percentage of L/C
Obligations (line 2(c) times
line 5(a)) $_____________
6. Payment Amount $_____________
7. Payment Instructions
(a) If payable to Assignor,
to the account of Assignor to:
_________________________________
_________________________________
_________________________________
Routing No.:_____________________
Account No.:_____________________
Attn:____________________________
Reference:_______________________
(b) If payable to Assignee, to the account
of Assignee to:
_________________________________
_________________________________
_________________________________
Routing No.:_____________________
Account No.:_____________________
Attn:____________________________
Reference:_______________________
EXHIBIT L
to
Amended and Restated Credit Agreement
dated as of January 14, 1997
by and among
ACC Corp. and certain Subsidiaries, as Borrowers,
ACC Corp., as Guarantor,
the Lenders party thereto,
First Union National Bank of North Carolina,
as Managing Agent and Administrative Agent,
and
Fleet National Bank,
as Managing Agent and Documentation Agent
FORM OF AMENDED AND RESTATED JOINDER AGREEMENT
THIS JOINDER AGREEMENT, dated as of the day of _________, 1997
(the "Agreement), to the Amended and Restated Credit Agreement referred
to below is entered into by and among ACC Corp. and certain
Subsidiaries, as Borrowers, ACC Corp., as Guarantor, the Lenders party
thereto, First Union National Bank of North Carolina, as Managing Agent
and Administrative Agent, and Fleet National Bank, as Managing Agent and
Documentation Agent.
Statement of Purpose
ACC Corp., ACC Long Distance Corp., ACC National Telecom Corp., ACC
Long Distance of Massachusetts Corp., ACC Global Corp., ACC Radio Corp.,
ACC National Long Distance Corp., ACC Long Distance U.K., Ltd. and ACC
TelEnterprises Ltd. are party to an Amended and Restated Credit
Agreement of even date (as amended, restated or otherwise modified, the
"Amended and Restated Credit Agreement"), among such Borrowers, the
Lenders party thereto and First Union National Bank of North Carolina,
as Managing Agent and Administrative Agent, and Fleet National Bank, as
Managing Agent and Documentation Agent.
[INSERT NAME OF ADDITIONAL BORROWER] (the "Company") has become a
direct or indirect Material Subsidiary of ACC pursuant to [DESCRIBE
ACQUISITION OR OTHER RELEVANT DOCUMENTS]. In connection with such
transaction, the Company is required to execute, among other documents,
a joinder agreement in order to become a Borrower under the Amended and
Restated Credit Agreement.
NOW THEREFORE, in consideration of the premises and other good and
valuable consideration, the parties hereto hereby agree as follows:
1.01 Joinder of Company.
(a) Joinder. Pursuant to Section 8.12 of the Amended and Restated
Credit Agreement, the Company hereby agrees that it is a [____________]
Borrower under the Amended and Restated Credit Agreement as if a
signatory thereof on the Closing Date, and the Company shall comply with
and be subject to all of the terms, conditions, covenants, agreements
and obligations set forth therein. [IF THE COMPANY IS A CANADIAN
SUBSIDIARY, LANGUAGE SATISFACTORY TO THE MANAGING AGENTS SHALL BE
INSERTED PROVIDING FOR JOINT AND SEVERAL LIABILITY AMONG ALL OF THE
CANADIAN BORROWERS FOR THE OBLIGATIONS OF THE CANADIAN BORROWERS, TO THE
FULLEST EXTENT PERMITTED UNDER CANADIAN LAW.] The Company hereby agrees
that each reference to any [_____________ Borrower] or [ ___________
Borrowers] or to any "Borrower" or the "Borrowers" in the Amended and
Restated Credit Agreement shall include the Company. The Company
acknowledges that it has received a copy of the Amended and Restated
Credit Agreement and that it has read and understands the terms thereof.
(b) Schedules. Attached hereto are updated copies of each
Schedule referenced in the Amended and Restated Credit Agreement revised
to include all information required to be provided therein with respect
to the Company.
(c) Sublimit. Attached is a revised Schedule 1.2 to the Amended
and Restated Credit Agreement which includes the Sublimit of the
Company.
2.01 Effectiveness. This Agreement shall become effective upon
receipt by the Administrative Agent of (i) an originally executed
corresponding Note for each Lender jointly executed by each applicable
Borrower and the Company in exchange for the corresponding Notes issued
on the Closing Date or the date of the most recent Joinder Agreement, as
applicable, (ii) an originally executed counterpart hereof and (iii)
supplements to the applicable Security Documents and each other
agreement or document requested by the Administrative Agent in
accordance with Section 8.12.
4.01 General Provisions.
(a) Representations and Warranties. Each Borrower hereby confirms
that each representation and warranty made by it under the Loan
Documents is true and correct in all material respects as of the date
hereof and that no Default or Event of Default has occurred and is
continuing under the Amended and Restated Credit Agreement, except for
any deviations from such representations and warranties expressly
permitted by the Amended and Restated Credit Agreement and except for
any waivers of such representations and warranties granted by the
Required Lenders in writing. Each such Borrower hereby represents and
warrants that as of the date hereof there are no claims or offsets
against or defenses or counterclaims to their respective obligations
under the Amended and Restated Credit Agreement or any other Loan
Document.
(b) Limited Effect. Except as supplemented hereby, the Amended
and Restated Credit Agreement and each other Loan Document shall
continue to be, and shall remain, in full force and effect. This
Agreement shall not be deemed (i) to be a waiver of, or consent to, or
a modification or amendment of, any other term or condition of the
Amended and Restated Credit Agreement or (ii) to prejudice any right or
rights which the Agents or Lenders may now have or may have in the
future under or in connection with the Amended and Restated Credit
Agreement or the Loan Documents or any of the instruments or agreements
referred to therein, as the same may be further amended, restated or
otherwise modified.
(c) Costs and Expenses. The Borrower who is the parent of the
Company hereby agrees to pay or reimburse the Agent for all of its
reasonable and customary out-of-pocket costs and expenses incurred in
connection with the preparation, negotiation and execution of this
Agreement including, without limitation, the reasonable fees and
disbursements of counsel.
(d) Counterparts. This Agreement may be executed by one or more
of the parties hereto in any number of separate counterparts and all of
said counterparts taken together shall be deemed to constitute one and
the same instrument.
(e) Definitions. All capitalized terms used and not defined
herein shall have the meanings given thereto in the Amended and Restated
Credit Agreement.
(f) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NORTH CAROLINA, WITHOUT REFERENCE TO THE CONFLICTS OR CHOICE OF LAW
PRINCIPLES THEREOF.
/FN
Insert Domestic, Canadian or U.K., as applicable.
IN WITNESS WHEREOF the undersigned hereby causes this Agreement to
be executed and delivered as of the date first above written.
ACC LONG DISTANCE CORP.
[CORPORATE SEAL]
By: ____________________________
Name: __________________________
Title:__________________________
ACC NATIONAL TELECOM CORP.
[CORPORATE SEAL]
By: ____________________________
Name: __________________________
Title:__________________________
ACC LONG DISTANCE OF MASSACHUSETTS
CORP.
[CORPORATE SEAL]
By: ____________________________
Name: __________________________
Title:__________________________
ACC RADIO CORP.
[CORPORATE SEAL]
By: ____________________________
Name: __________________________
Title:__________________________
ACC NATIONAL LONG DISTANCE CORP.
[CORPORATE SEAL]
By: ____________________________
Name: __________________________
Title:__________________________
ACC LONG DISTANCE U.K., LTD
[CORPORATE SEAL]
By: ____________________________
Name: __________________________
Title:__________________________
ACC TELENTERPRISES LTD.
[CORPORATE SEAL]
By: ____________________________
Name: __________________________
Title:__________________________
FIRST UNION NATIONAL BANK OF NORTH
CAROLINA, as Lender, Managing Agent
and Administrative Agent
By: ____________________________
Name: __________________________
Title:__________________________
FLEET NATIONAL BANK,
as Lender, Managing Agent and
Documentation Agent
By: ____________________________
Name: __________________________
Title:__________________________
SCHEDULE RESPONSIBLE DEPT.
Schedule 1.1: Lenders and Commitments
Schedule 1.2: Sublimits
Schedule 1.3: Canadian Security Documents
Schedule 6.1(a): Jurisdictions of Legal/Regulatory
Organization and Qualification
Schedule 6.1(b): Subsidiaries and
Capitalization Legal/Regulatory
Schedule 6.1(d): Required Governmental
Approvals Legal/Regulatory
Schedule 6.1(h): Employee Benefit Plan ▇▇▇▇▇▇ ▇▇▇▇▇-Corp.
Schedule 6.1(1): Material Contracts Legal/Regulatory
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇
Schedule 6.1(m): Labor and Collective
Bargaining Agreements NONE
Schedule 6.1(r): Real Property ▇▇▇▇▇
Schedule 6.1(t): Debt and Contingent
Obligations Finance
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ Federation
Schedule 6.1(u): Litigation Legal/Regulatory
Schedule 6.1(v): Communications Licenses
and Regulatory Approvals Legal/Regulatory
Schedule 10.3: Existing Liens ▇▇▇ ▇▇▇▇/NHDD
Schedule 10.4: Existing Loans,
Advances and Investments Finance
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ Federation
Schedule 1.1: Lenders and Commitments
Commitment
Lender Commitment Percentage
First Union National Bank $40,000,000 40%
of North Carolina
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇-▇▇
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Syndication Agency
Services
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fleet National Bank $25,000,000 25%
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Bank of Montreal $20,000,000 20%
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Media/Communications
Telephone No.: (___) _____-_____
Telecopy No.: (___) _____-_____
State Street Bank and Trust $15,000,000 15%
Company
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention:
Telephone No.: (___) _____-_____
Telecopy No.: (___) _____-_____
Schedule 1.2: Sublimits
Borrower Sublimit*
ACC Canada and any Additional $30,000,000
Borrower who is a Canadian
Borrower
ACC U.K. and any Additional $20,000,000
Borrower which is a U.K.
Borrower
ACC LEC $15,000,000
ACC and any Additional $100,000,000 less
Borrower who is a Domestic outstandings to all
Borrower other Borrowers
* The Sublimits may be revised upon the prior written consent of the
Required Lenders.
Schedule 1.3: Canadian Security Documents
(a) Quebec Security Documents
(i) Hypothec by Canadian Borrower
(ii) Landlord Agreement re: Montreal switch site
(iii) Articles of Amalgamation of Canadian Borrower certified
by appropriate Ontario governmental department
(b) Ontario Security Documents
(i) Ontario Security Agreement by Canadian Borrower
(ii) Notice of Security Interest in Fixtures (Toronto Street)
(iii) Leasehold Mortgage (Dundas Street)
(iv) Landlord Agreement (Dundas Street)
(v) Acknowledgement of Standard Charge Terms (Dundas Street)
(vi) Letter of Credit (Dundas Street)
(vii) Document General (Form 4) with an original notarial copy
of the Articles of Amalgamation of the ACC Canada
attached thereto (re: Dundas Street)
(viii) Leasehold Mortgage (Toronto Street)
(ix) Acknowledgement of Standard Charge Terms (Toronto Street)
(x) Landlord Agreement (Toronto Street)
(xi) Letter of Credit (Toronto Street)
(xii) Document General (Form 4) with an original notarial copy
of the Articles of Amalgamation of ACC Canada attached
thereto (re: Toronto Street)
(xiii) Confirmation and Consent by ACC Canada to Share pledge by
ACC
(xiv) Resolutions of directors of ACC Canada authorizing Pledge
by ACC
(c) British Columbia Security Documents
(i) British Columbia Security Agreement by Canadian Borrower
(ii) Notice of Security Interest in Fixtures
(iii) Unregistered Leasehold Mortgage (in registrable form)
(re: switch site)
(iv) Letter of Canadian Borrower authorizing insertion of
information in registrable mortgage
(v) Equitable Mortgage
(vi) Landlord Agreement
Schedule 6.1(a): Jurisdictions of Organization and Qualification
Trade Names And
Names of U.S. State and Date of Foreign Expiration Date,
Corporations Incorporation Qualifications if any FEIN
ACC Corp. Delaware 4/9/87 NY 12/1/87 None ▇▇-▇▇▇▇▇▇▇
ACC Cellular Corp. Delaware 1/15/92 None None ▇▇-▇▇▇▇▇▇▇
ACC Credit Corp. Delaware 1/10/94 NY 1/12/94 None ▇▇-▇▇▇▇▇▇▇
ACC Global Corp. Delaware 11/10/92 NY 4/19/93 None ▇▇-▇▇▇▇▇▇▇
ACC Local Fiber Corp. New York 6/9/89 NY 6/9/89 NY: ACC ▇▇-▇▇▇▇▇▇▇
ACC Long Distance
Corp. Delaware 10/25/93 None None ----------
ACC Long Distance
Corp. New York 2/4/87 MA 2/4/87 NY: ACC Long ▇▇-▇▇▇▇▇▇▇
Distance
ACC Long Distance of Delaware 3/24/92 CT 4/23/92 CT: ACC Long ▇▇-▇▇▇▇▇▇▇
Connecticut Corp. Distance
ACC Long Distance of Delaware 10/20/93 GA 11/5/93 None ▇▇-▇▇▇▇▇▇▇
Georgia Corp.
ACC Long Distance of Delaware 11/4/92 IL 1/31/92 IL: ACC Long ▇▇-▇▇▇▇▇▇▇
Illinois Corp. Distance
ACC Long Distance of Delaware 12/9/93 ME 1/4/94 ME: ACC Long ▇▇-▇▇▇▇▇▇▇
Maine Corp. Distance
ACC Long Distance of Delaware 1/14/92 MA 2/10/92 MA: ACC Long ▇▇-▇▇▇▇▇▇▇
Massachusetts Corp. Distance
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇: ACC Long ▇▇-▇▇▇▇▇▇▇
New Hampshire Corp. 12/16/93 Distance
ACC Long Distance of Delaware 1/29/92 OH 2/25/92 OH: ACC Long ▇▇-▇▇▇▇▇▇▇
Ohio Corp. Distance
ACC Long Distance of Delaware 3/24/92 PA 4/23/92 PA: ACC Long ▇▇-▇▇▇▇▇▇▇
Pennsylvania Corp. Distance
ACC Long Distance of Delaware 3/11/94 RI 10/6/94 RI: ACC Long ▇▇-▇▇▇▇▇▇▇
Rhode Island Corp. Distance
ACC Long Distance of Delaware 12/9/93 VT 1/27/94 VT: ACC Long ▇▇-▇▇▇▇▇▇▇
Vermont Corp. Distance
ACC Long Distance Delaware 2/25/94 NY 4/19/94 NY: ACC ▇▇-▇▇▇▇▇▇▇
Sales Corp. Marketing Media
ACC National Long Delaware 10/25/93 See Attached See Attached ▇▇-▇▇▇▇▇▇▇
Distance Corp.
ACC National Telecom Delaware 10/6/93 NY 10/8/93 None ▇▇-▇▇▇▇▇▇▇
Corp.
ACC Network Corp. New York 8/23/79 NY 8/23/79 None ▇▇-▇▇▇▇▇▇▇
ACC Radio Corp. New York 2/4/57 MA 9/30/93 None ▇▇-▇▇▇▇▇▇▇
NH 3/3/94
PA 9/8/87
ACC Service Corp. Delaware 12/16/92 NY 1/31/94 None ▇▇-▇▇▇▇▇▇▇
Cel Tel Corp. Delaware 10/24/90 None None ----------
Danbury Cellular Connecticut 2/14/85 NY 4/19/91 None ▇▇-▇▇▇▇▇▇▇
Telephone Co.
Teleprocessing New York 12/4/81 None None ▇▇-▇▇▇▇▇▇▇
Consultants, Inc.
United Bluegrass Delaware 10/24/90 None None ----------
Cellular Corp.
Schedule 6.1(a): Jurisdictions of Organization and Qualification (Continued)
Names of Non-U.S. Foreign
Corporations Place and Date of Qualifications Trade Names
Incorporation
ACC TelEnterprises Ltd. Ontario, CAN ▇/▇/▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇: ACC,
Columbia, Manitoba, ACC Long Distance, ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇: ACC, ACC ▇▇▇▇
▇▇▇▇▇▇ Island, Distance, One Plus, One
Quebec Plus Long Distance
Telecommunications
Quebec: ACC, Interurbains ACC,
Un Plus, Telecommunications
Interurbains Un Plus
ACC Long Distance ▇▇▇▇▇▇ ▇▇/▇▇/▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, S.A.R.L.
ACC Long Distance England 12/11/91 None None
UK Ltd.
Schedule 6.1(a): Jurisdictions of Organization and Qualification
(Continued)
ACC NATIONAL LONG DISTANCE CORP.
Date of Foreign Trade Name and Expiration
State Qualification Date, if any
Alabama 12/8/94 N/A
Arizona 4/3/95 ACC Long Distance
Expires 3/31/00
Arkansas 11/8/94 ACC Long Distance
California 10/7/94 ACC Long Distance
Expires 10/12/99
Colorado 10/6/94 ACC Long Distance
Delaware N/A ACC Long Distance
District of Columbia 10/5/94 N/A
Florida 10/6/94 ACC Long Distance
Expires 12/31/99
Idaho 10/12/94 ACC Long Distance
Indiana 10/17/94 ACC Long Distance
Iowa 11/4/94 ACC Long Distance
Kansas 4/3/95 N/A
Kentucky 10/5/94 ACC Long Distance
Louisiana 10/11/94 ACC Long Distance
Maryland 10/5/94 ACC Long Distance
Expires 10/5/99
Michigan 10/6/94 ACC Long Distance
Expires 12/31/99
Minnesota 11/4/94 ACC Long Distance
Expires 11/4/04
Mississippi 10/5/94 N/A
Missouri 10/5/94 ACC Long Distance
Montana 10/7/94 ACC Long Distance
Expires 10/31/99
Nebraska 10/12/94 ACC Long Distance
Expires 10/12/04
Nevada 10/5/94 ACC Long Distance
New Jersey 12/6/94 ACC Long Distance
Expires 12/9/99
New Mexico 10/11/94 ▇/▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇/▇/▇▇ ▇/▇
▇▇▇▇▇ ▇▇▇▇▇▇ 10/12/94 ACC Long Distance
Expires 10/12/99
Oklahoma 10/5/94 ACC Long Distance
Oregon 10/5/94 ACC Long Distance
South Carolina 11/7/94 ACC Long Distance
South Dakota 10/11/94 ACC Long Distance
Tennessee 10/5/94 ACC Long Distance
Expires 10/5/99
Texas 10/7/94 ACC Long Distance
Utah 10/5/94 ACC Long Distance
Expires 10/5/97
Virginia 10/5/94 N/A
Washington 10/6/94 ACC National Long
Distance Corp.
West Virginia 10/28/94 ACC Long Distance
Wisconsin 10/5/94 N/A
Wyoming 10/5/94 N/A
Schedule 6.1(b): Subsidiaries and Capitalization
Shares
# Shares Par Issued &
Type Authorized Value Outstanding Shareholders
*ACC Corp. Common 50,000,000 0.015 16,594,477 Publicly Traded
ACC Service Corp. Common 3.000 0.000 1 ACC Corp.
*ACC Long Distance Common 200 0.000 200 ACC Corp.
Corp.
ACC Long Distance Common 3,000 0.000 1 ACC National Long
Sales Corp. Distance Corp.
*ACC National Long Common 3,000 0.000 5 ACC Corp.
Distance Corp.
ACC Long Distance of
Connecticut Corp. Common 3,000 0.00 1 ACC National Long
Distance Corp.
Georgia Corp. Common 3,000 0.000 1 ACC National Long
Distance Corp.
Illinois Corp. Common 3,000 0.00 1 ACC Corp.
Maine Corp. Common 3,000 0.00 1 ACC National Long Distance
Corp.
Maryland Corp. Common 3,000 0.00 1 ACC National Long Distance
Corp.
*Massachusetts
Corp. Common 3,000 0.00 1 ACC National Long Distance
Corp.
New Hampshire
Corp. Common 3,000 0.00 1 ACC National Long Distance
Corp.
Ohio Corp. Common 3,000 0.00 1 ACC Corp.
Pennsylvania Corp. Common 3,000 0.00 1 ACC Corp.
Rhode Island Corp. Common 3,000 0.00 1 ACC National Long Distance
Corp.
Vermont Corp. Common 3,000 0.00 1 ACC National Long Distance
Corp.
ACC Network Corp. Common 200 0.00 200 ACC Corp.
ACC Local Fiber
Corp. Common 200 0.00 200 ACC Corp.
*ACC Global Corp. Common 3,000 0.00 1 ACC Corp.
*ACC Radio Corp. Common 200 0.00 200 ACC Corp.
Cel Tel Corp. Common 3,000 0.00 1 ACC Corp.
United Bluegrass Common 3,000 0.00 1 Cel Tel Corp.
Cellular
Danbury Cellular Common 5,000 0.00 100 ACC Corp.
Telephone Corp.
*ACC National Common 3,000 0.00 1 ACC Corp.
Telecom Corp.
ACC Credit Corp. Common 3,000 0.00 1 ACC Corp.
FOREIGN SUBSIDIARIES:
*ACC TelEnterprises
Ltd. Common Unlimited 0.00 100 ACC Corp.
*ACC Long Distance Ordinary 9,001,000 1.000(pound) 9,000,002 ACC Corp.
UK Ltd.
ACC Long Distance Common 500 100.00 500 ACC Corp.
France, S.A.R.L.
* Denotes a material subsidiary