Exhibit 10.64
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED, OR THE SECURITIES LAWS OF ANY STATE OR OTHER JUSISDICTION OF THE
UNITED STATES AND MAY NOT BE SOLD OR OTHERWISE DISPOSED OF EXCEPT PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT AND APPLICABLE STATE
SECURITIES LAWS OR PURSUANT TO AN APPLICABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF SUCH ACT AND SUCH LAWS.
THIS NOTE IS SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFER PURSUANT TO AN
AGREEMENT BETWEEN THE NAMED PAYEE AND THE OBLIGORS. A COPY OF THE AGREEMENT
MAY BE OBTAINED FROM THE OBLIGORS AT THEIR PRINCIPAL OFFICE, 000 XXXX 00XX
XXXXXX, XXX XXXX, XXX XXXX 00000.
$500,000
10.75% SENIOR UNSECURED CONVERTIBLE PIK NOTE DUE 2010
CoreComm Holdco, Inc., a Delaware corporation ("HoldCo") and
CoreComm Limited, a Delaware corporation ("CoreComm" and together with
HoldCo, the "Obligors"), hereby, jointly and severally, promise to pay to
Xxx X. XxXxxxxxxx, or assigns, the principal sum of Five Hundred Thousand
Dollars ($500,000), on December 16, 2010, subject to the further provisions
of this Note set forth on the reverse hereof which further provisions shall
for all purposes have the same effect as if set forth at this place.
Interest Payment Dates: January 1 and July 1, commencing July 1, 2001
Interest. The Notes will accrue interest at a rate of 10.75%
per annum. The Obligors jointly and severally promise to pay interest on
the Notes semiannually on each January 1 and July 1, commencing on July 1,
2001, to Holders of record on the immediately preceding December 15 and
June 15, respectively. Interest on the Notes will be payable in kind by the
issuance of additional Notes in such principal amount as shall equal the
interest payment that is then due. Interest on the Notes will accrue from
the most recent date to which interest has been paid, or if no interest has
been paid, from December 15, 2000. Interest will be computed on the basis
of a 360-day year of twelve 30-day months. The Obligors will pay interest
on overdue principal at the interest rate borne by the Notes, compounded
semiannually, and it shall pay interest on overdue installments of interest
(without regard to any applicable grace period) at the same interest rate
compounded semiannually.
Payment of Interest. The Obligors will pay interest on the
Notes (except defaulted interest) to the Persons who are registered Holders
of Notes at the close of business on the record date for the next interest
payment date even though Notes are canceled after the record date and on or
before the interest payment date.
Optional Redemption. The Notes are not redeemable at the
Obligors' option prior to December 15, 2002. Thereafter, the Notes will be
subject to redemption at the option of the Obligors, in whole or in part,
upon not less than 15 days' notice, at the redemption prices (expressed as
percentages of principal amount thereof) set forth below plus accrued and
unpaid interest thereon to the applicable redemption date, if redeemed
during the twelve-month period beginning on December 15 of the years
indicated below:
Year Percentage
---- ----------
2002........................ 103.429%
2003........................ 102.571%
2004........................ 101.714%
2005........................ 100.857%
2006 and thereafter......... 100.000%
Notice of Redemption. Notice of redemption will be mailed at
least 15 days before the redemption date. On and after the redemption date,
interest ceases to accrue on the Notes or portions of them called for
redemption.
If this Note is redeemed subsequent to a record date with
respect to any interest payment date specified above and on or prior to
such interest payment date, then any accrued interest will be paid to the
Person in whose name this Note is registered at the close of business on
such record date.
! Mandatory Redemption. The Obligors will not be required to make
mandatory redemption or repurchase payments with respect to the Notes.
There are no sinking fund payments with respect to the Notes.
Conversion. The Holder of any Note has the right, exercisable
at any time prior to the close of business (New York time) on the date of
the Note's maturity, to convert the principal amount thereof (or any
portion thereof that is an integral multiple of $1,000) into either: (1)
shares of common stock of CoreComm at the conversion price of $5.00 per
share, subject to adjustment under certain circumstances; or (2) shares of
common stock of the entity undertaking CoreComm's fiber business
("FiberCo"), based on a valuation of FiberCo of $90 million; in the event
that an equity funding of FiberCo occurs which is at a higher or lower
valuation, the conversion rate into FiberCo shares will be adjusted
accordingly; shares in FiberCo will be of a class of voting shares, each
share having one vote; the shares retained by CoreComm will each have ten
votes; the ability to elect to convert into shares of FiberCo will only
become available once CoreComm has established the final structure and
organization of the FiberCo entity and the requisite consent of the lenders
under the Credit Agreement has been obtained; or (3) any combination of (1)
and (2), except that if a Note is called for redemption, the conversion
right will terminate at the close of business on the Business Day
immediately preceding the date fixed for redemption.
To convert a Note, a Holder must (1) furnish a notice of
conversion to HoldCo and CoreComm, (2) surrender the Note to the Obligors
and (3) pay any transfer or similar tax, if required. Upon conversion, no
adjustment or payment will be made for interest or dividends, but if any
Holder surrenders a Note for conversion after the close of business on the
record date for the payment of an installment of interest and prior to the
opening of business on the next interest payment date, then,
notwithstanding such conversion, the interest payable on such interest
payment date will be paid to the Holder of such Note on such record date.
In such event, such Note, when surrendered for conversion, need not be
accompanied by payment of an amount equal to the interest payable on such
interest payment date on the portion so converted. No fractional shares
will be issued upon conversion but a cash adjustment will be made for any
fractional interest.
Amendments, Supplements and Waivers. Subject to certain
exceptions, the Notes may be amended or supplemented with the consent of
the Holders of at least a majority in principal amount of the then
outstanding Notes (including consents obtained in connection with a tender
offer or exchange offer for Notes), and any existing default may be waived
with the consent of the Holders of a majority in principal amount of the
then outstanding Notes. Without the consent of any Holder, the Notes may be
amended among other things, to cure any ambiguity, defect or inconsistency,
to provide for assumption of the Obligors obligations to Holders or to make
any change that does not adversely affect the rights of any Holder.
No Recourse Against Others. A director, officer, employee,
incorporator or shareholder of the Obligors, as such, shall not have any
liability for any obligations of the Obligors under the Notes or for any
claim based on, in respect of or by reason of such obligations or their
creation. Each Holder of the Notes by accepting a Note waives and releases
all such liability. The waiver and release are part of the consideration
for the issue of the Notes.
Governing Law. THE INTERNAL LAWS OF THE STATE OF NEW YORK SHALL
GOVERN THE NOTES WITHOUT REGARD TO CONFLICT OF LAW PROVISIONS THEREOF.
IN WITNESS WHEREOF, each of the Obligors have caused this Note
to be signed manually or by facsimile by one of their duly authorized
officers.
Dated: December 15, 2000
CORECOMM LIMITED
by: / s / Xxxxxxx X. Xxxxxxx
--------------------------------
CORECOMM HOLDCO, INC.
by: / s / Xxxxxxx X. Xxxxxxx
---------------------------------
