FIFTH AMENDMENT dated as of December 19, 2003 (this "Amendment"), to
the Credit Agreement dated as of September 28, 2000, as amended and restated as
of April 11, 2001, and amended by the First Amendment dated as of October 31,
2001, the Second Amendment dated as of December 14, 2001, the Third Amendment
dated as of March 29, 2002 and the Fourth Amendment dated as of March 31, 2003
(as further amended, restated or otherwise supplemented from time to time, the
"Credit Agreement"), by and among CCL Historical, Inc., formerly named CoreComm
Limited (the "Parent"), ATX Communications, Inc., formerly named CoreComm
Holdco, Inc. ("CCI" ), CoreComm Communications, Inc. (the "Borrower"), the
guarantors of the obligations under the Credit Agreement (the "Guarantors" and
collectively with the Parent, CCI and the Borrower, the "Loan Parties"), the
lenders party thereto at the date of each agreement, including without
limitation Leucadia National Corporation or one of its affiliates ("LEUCADIA"),
the buyer of all of the claims under the Credit Agreement contemporaneously with
the execution of this amendment (collectively, the "Lenders"), and LEUCADIA as
the successor administrative agent under the Credit Agreement.
WHEREAS, the Loan Parties (such term and other capitalized terms used
herein and not otherwise defined herein shall have the meanings assigned to such
terms in the Credit Agreement) currently owe $50,000,000 under the Revolving
Commitment and $106,100,000 under the Term Loans under the Credit Agreement (the
"Acknowledged Debt"); and
WHEREAS, solely for purposes of this Amendment, the Loan Parties
acknowledge that in light of current circumstances, certain covenants under the
Credit Agreement have been or could be breached in the future, including the
covenants listed in Exhibit A attached hereto and incorporated herein by this
reference (the "Acknowledged Defaults"); and
WHEREAS, LEUCADIA has purchased all of the claims of all of the
Lenders under the Credit Agreement and substituted in as successor
Administrative Agent in reliance on this Agreement and the other Agreements
referenced in Section 6, below, including without limitation the Loan Parties'
representations that (i) the Acknowledged Debt is now due and owing, without
offset, counterclaim or defense, and (ii) the Acknowledged Defaults constitute a
complete list of all existing defaults under the Credit Agreement; and
WHEREAS, but for this Amendment LEUCADIA would have the absolute right
to cease all further advances under the Revolving Commitment, accelerate the
balances due under the Credit Agreement and enforce all of its rights against
the collateral pledged under the Credit Agreement, as the direct result of the
Acknowledged Defaults; and
WHEREAS, the Loan Parties have requested that LEUCADIA approve
amendments to certain provisions of the Credit Agreement and forbear from
enforcing certain rights during the term of this Amendment; and
WHEREAS, LEUCADIA is willing, on the terms and subject to the
conditions set forth herein, to approve such amendments and forbear from
enforcing certain rights under the Credit Agreement through and including the
"Termination Date" as defined in Section 2, below;
ACCORDINGLY, in consideration of the mutual agreements herein
contained and other good and valuable consideration, the sufficiency and receipt
of which are hereby acknowledged, the parties hereto agree as follows:
1. Acknowledgement of Debt and Defaults. The Loan Parties represent
and warrant that to the best of their knowledge the Acknowledged Debt is now due
and owing under the Credit Agreement, without any counterclaim, defense or
offset of any kind, and is secured by the Collateral, as defined in the Credit
Agreement and related documents. The Loan Parties further represent and warrant
that to the best of their knowledge (a) except with respect to current waivers
of defaults, the Acknowledged Defaults have occurred and, but for this
Amendment, would entitle the Lenders to immediately terminate all further
advances under the Credit Agreement and enforce their rights under the Credit
Agreement, and (b) no Defaults other than the Acknowledged Defaults currently
exist under the Credit Agreement.
2. Forbearance. Upon effectiveness of this Amendment in accordance
with Section 6 hereof, LEUCADIA agrees to forbear from enforcing its rights
under the Credit Agreement based on any of the Acknowledged Defaults, which have
been (i) publicly disclosed pursuant to the public filings of CCI made prior to
the date hereof, (ii) disclosed to LEUCADIA (including. without limitation, by
way of financial or operating projections provided to LEUCADIA) prior to the
date hereof or (iii) potential future Defaults with respect to the fourth
quarter 2003 minimum cash flow (Section 6.27 of the Credit Agreement), EBITDA
(Section 6.18 of the Credit Agreement) and capital expenditure (Section 6.23 of
the Credit Agreement) covenants in the Credit Agreement ("Disclosed Acknowledged
Defaults"), until the earliest of (a) February 2, 2004, or (b) the date a
petition under any chapter of title 11 of the United States Code is filed by or
against any of the Loan Parties (the earliest of a and b, the "Termination
Date"). This forbearance shall not apply to any material Default or Event of
Default that is not a Disclosed Acknowledged Default. Notwithstanding anything
contained herein to the contrary, any waivers already granted under the Credit
Agreement prior to the date hereof remain in full force and effect.
3. Amendment of Credit Agreement. Upon the effectiveness of this
Amendment in accordance with Section 6 hereof, the Credit Agreement is hereby
amended as follows:
(a) Schedule 2.01 of the Credit Agreement is hereby amended to provide
that the total Revolving Commitment shall remain unchanged through the
Termination Date, so that the Loan Parties shall not be required to pay
down the Revolving Commitment but LEUCADIA shall not be required to make
any new advances pursuant to the Credit Agreement; provided, however, the
foregoing shall not affect or limit the Company's ability to use cash
collateral in accordance with Section 3(b) hereof.
(b) Upon commencement of chapter 11 bankruptcy cases by the Loan
Parties (unless LEUCADIA and the Company mutually agree that commencement
of a chapter 11 case for a particular Loan Party is not needed), (i)
LEUCADIA shall make available for use by the Loan Parties as a debtor in
possession new debtor in possession financing of $5 million pursuant to the
terms of mutually acceptable loan documents and a mutually acceptable
debtor in possession borrowing order on terms no less favorable to the
Company than those set forth in the Debtor in Possession Loan Agreement and
the Debtor in Possession Borrowing Order attached hereto as Exhibit B and C
respectively; and (ii) LEUCADIA will consent to the use - of its cash
collateral in such amounts as are required by the budget delivered to
LEUCADIA on December __, 2003 (the "Budget"), so long as the Bankruptcy
Court enters its order providing LEUCADIA with adequate protection, on the
terms no less favorable to the Company than those contained in the form of
agreement attached hereto as Exhibit D.
4. No Other Amendments; Confidentiality. Except as expressly amended
hereby, the provisions of the Credit Agreement and each other Loan Document are
and shall remain in full force and effect. Nothing herein shall be deemed to
entitle any Loan Party to a consent to, or a waiver, amendment, modification or
other change of, any of the terms, conditions, obligations, covenants or
agreements contained in the Credit Agreement or any Loan Document in similar or
different circumstances.
5. Representations and Warranties. After giving effect to this
Amendment, each Loan Party hereby represents and warrants to the Agent and the
Lenders that:
(a) Except as set forth in Exhibit D to this Amendment, all material
representations and warranties of each Loan Party set forth in the Loan
Documents are true and correct in all material respects as of the date
hereof, except to the extent (i) otherwise publicly disclosed pursuant to
the public filings of CCI made prior to the date hereof, (ii) otherwise
disclosed to LEUCADIA prior to the date hereof, and (iii) that any
representation or warranty relates to an earlier date (in which case such
representation or warranty is true and correct in all material respects as
of such earlier date).
6. Conditions Precedent to Effectiveness. This Amendment shall become
effective on the date on which each of the following conditions is satisfied
(the "Effective Date"):
(a) LEUCADIA shall have acquired the rights of the Lenders under the
Credit Agreement pursuant to the Purchase Agreement of even date herewith.
(b) LEUCADIA and the Loan Parties shall have executed the Conversion
Agreement, the form of which is attached as Exhibit E hereto.
(c) The Collateral Agent and LEUCADIA shall have each received
counterparts hereof in accordance with Section 7(b) hereof duly executed
and delivered by the Parent, CCI, the Borrower, each of the other Loan
Parties, the Collateral Agent and LEUCADIA.
7. Governing Law: Counterparts.
(a) This Amendment shall be governed by and construed in accordance
with the laws of the State of New York.
(b) This Amendment may be executed by one or more of the parties to
this Amendment on any number of separate counterparts, and all of such
counterparts taken
together shall he deemed to constitute one and the same instrument. This
Amendment may be delivered by facsimile transmission of the signature pages
hereof.
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