EXHIBIT 10.2
[EXECUTION COPY]
USN COMMUNICATIONS, INC.
$22,830,070
14% CLASS A SENIOR SECURED NOTES DUE JUNE 30, 1999
14% CLASS B SENIOR SECURED NOTES DUE JUNE 30, 1999
14% SENIOR SECURED DELAYED CLOSING NOTES DUE JUNE 30, 1999
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NOTE PURCHASE AGREEMENT
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Dated as of February 23, 1999
TABLE OF CONTENTS
PAGE
1. AUTHORIZATION OF NOTES..............................................1
2. SALE AND PURCHASE OF NOTES..........................................2
3. CLOSINGS............................................................2
4. CONDITIONS TO CLOSINGS..............................................3
A. FIRST CLOSING..............................................3
4.1 Representations and Warranties.............................3
4.2 No Default.................................................3
4.3 Documents Required.........................................3
4.4 Opinion of Counsel.........................................5
4.5 Payment of Special Counsel Fees............................5
4.6 CoreComm Asset Purchase Agreement..........................5
4.7 Interim DIP Order..........................................5
4.8 Funding Order..............................................5
B. SECOND CLOSING.............................................5
4.1 Representations And Warranties.............................5
4.2 No Default.................................................6
4.3 Documents Required.........................................6
4.4 Final Dip Order............................................6
4.5 Funding....................................................6
C. DELAYED CLOSINGS...........................................6
4.1 Documents Required.........................................6
4.2 Assumption of Cured Contracts..............................6
4.3 Final Dip Order............................................6
4.4 Corecomm Asset Purchase Agreement .........................6
5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.......................6
5.1 Organization; Power and Authority..........................7
5.2 Authorization, Enforceability, Etc.........................7
5.3 Organization and Ownership of Shares of
Subsidiaries; Affiliates.................................7
5.4 Security Interests, Priority, Etc..........................8
5.5 Private Offering by the Company............................8
5.6 Use of Proceeds; Margin Regulations........................9
5.7 Accounts...................................................9
6. REPRESENTATIONS OF THE PURCHASER....................................9
6.1 Purchase for Investment....................................9
6.2 Accredited Investor.......................................10
6.3 Source of Funds...........................................10
7. PAYMENTS AND PREPAYMENTS...........................................10
7.1 Required Payments.........................................11
7.2 Optional Prepayments......................................11
7.3 Allocation of Partial Prepayments.........................12
7.4 Maturity; Surrender, Etc..................................12
7.5 No Discharge; Survival of Claims..........................12
8. AFFIRMATIVE COVENANTS..............................................12
8.1 Financial and Business Information........................12
8.2 Compliance with Law.......................................13
8.3 Maintenance of Properties.................................13
8.4 Preservation of Corporate Existence, Etc..................14
8.5 Use of Proceeds...........................................14
8.6 Capital Stock.............................................14
8.7 Full Cooperation..........................................14
8.8 Obligations with respect to Stock and Assets
of Subsidiaries.........................................14
8.9 Performance of Material Contracts.........................15
8.10 Accounts..................................................15
9. NEGATIVE COVENANTS.................................................15
9.1 Limitations on Transactions with Affiliates...............15
9.2 Limitations on Liens......................................16
9.3 Limitations on Indebtedness...............................16
9.4 Limitations on Lease Obligations..........................17
9.5 Limitations on Mergers, Consolidations, Sales
of Assets, Etc..........................................17
9.6 Limitations on Dividends and Other Payment
Restrictions Affecting Subsidiaries.....................17
9.7 Limitations on Prepayments of Indebtedness, Etc...........17
9.8 Limitations on Negative Pledges...........................18
9.9 Limitations on Changes in Fiscal Year.....................18
9.10 Limitations on Speculative Real Estate Investments........19
9.11 Limitation on Investments.................................19
9.12 Limitation on Asset Purchases.............................19
9.13 Limitation on Capital Stock...............................19
9.14 Limitation on Termination of Licenses.....................19
9.15 Limitation on Line of Business............................19
9.16 Limitation on Termination of Employer Plans...............19
9.17 Limitation on Investment Company Act......................20
9.18 Limitations on Amendments.................................20
9.19 Limitation on Press Releases..............................20
9.20 Limitation on Creation of Subsidiaries....................20
9.21 Limitation on Sale and Leaseback Transactions.............20
9.22 Chapter 11 Claims.........................................20
9.23 Conflicting Agreements, Orders or Actions.................21
10. [INTENTIONALLY OMITTED.]...........................................21
11. EVENTS OF DEFAULT..................................................21
11.1 Events of Default.........................................21
11.2 Acceleration..............................................23
11.3 Other Remedies............................................24
11.4 Rescission................................................24
11.5 Restoration of Rights and Remedies........................24
11.6 No Waivers or Election of Remedies, Expenses, Etc.........24
12. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES......................25
12.1 Registration of Notes.....................................25
12.2 Transfer and Exchange of Notes............................25
12.3 Replacement of Notes......................................25
13. PAYMENTS ON NOTES..................................................26
14. EXPENSES, ETC......................................................26
14.1 Transaction Expenses......................................26
14.2 Indemnity.................................................27
14.3 Survival..................................................28
15. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT.......28
16. AMENDMENT AND WAIVER...............................................29
16.1 Requirements..............................................29
16.2 Solicitation of Holders of Notes..........................29
16.3 Binding Effect, Etc.......................................30
16.4 Notes Held by Company, Etc................................30
17. NOTICES............................................................30
18. REPRODUCTION OF DOCUMENTS..........................................31
19. CONFIDENTIAL INFORMATION...........................................31
20. SUBSTITUTION OF PURCHASER..........................................32
21. MISCELLANEOUS......................................................32
21.1 Successors and Assigns....................................32
21.2 Payments Due on Non-Business Days.........................32
21.3 Satisfaction Requirement..................................33
21.4 Severability..............................................33
21.5 Construction..............................................33
21.6 Computation of Time Periods...............................33
21.7 Counterparts..............................................33
21.8 Governing Law; Submission to Jurisdiction, Etc............33
21.9 Bankruptcy Waivers........................................34
21.10 Permitted Dispositions, etc...............................35
SCHEDULES
Schedule I - Defined Terms
Schedule 4.6 - Consents and Approvals
Schedule 4.8 - Changes in Corporate Structure
Schedule 5.3 - Subsidiaries of the Company
Schedule 5.7 - Accounts
Schedule 9.1 - Transactions with Affiliates
Schedule 9.2(ii) - Existing Liens
Schedule 9.3 - Existing Indebtedness
Schedule 9.4 - Obligations as Lessee
Schedule 9.11 - Existing Investments
Schedule 9.14 - Termination of Licenses
EXHIBITS
Exhibit A-1 - Form of Class A Note
Exhibit A-2 - Form of Class B Note
Exhibit A-3 - Form of Delayed Closing Note
Exhibit B - Form of Security Agreement
Exhibit C - Interim DIP Order
Exhibit D - Subsidiary Guaranty
Exhibit E - Collateral Agency Agreement
Exhibit F - Paying Agency Agreement
Exhibit G - February 18, 1999 Cash Flow Presentations
ANNEXES
Annex I - Information as to Purchasers
USN COMMUNICATIONS, INC.
00 XXXXX XXXXXXXXX XXXXX, XXXXX 0000
XXXXXXX, XXXXXXXX 00000
14% Class A Senior Secured Notes due June 30, 1999
14% Class B Senior Secured Notes due June 30, 1999
14% Senior Secured Delayed Closing Notes due June 30, 1999
As of February 23, 1999
XXXXXXX XXXXX GLOBAL ALLOCATION FUND, INC.
CORECOMM LIMITED
Ladies and Gentlemen:
USN Communications, Inc., a Delaware corporation, (the
"COMPANY"), agrees with you as follows:
1. AUTHORIZATION OF NOTES.
The Company will authorize the issue and sale of $6,000,000
aggregate principal amount of its 14% Class A Senior Secured Notes due June
30, 1999 (together with the Class A Notes delivered pursuant to Section 2
of this Agreement and any Notes issued in substitution or exchange therefor
pursuant to Section 12 of this Agreement, the "CLASS A NOTES"), $16,330,070
aggregate principal amount of its 14% Class B Senior Secured Notes due
June30, 1999 (together with the Class B Notes delivered pursuant to Section
2 of this Agreement and any Class B Notes issued in substitution or
exchange therefor pursuant to Section 12 of this Agreement, the "CLASS B
Notes"), and $500,000 aggregate principal amount of its 14% Senior Secured
Delayed Closing Notes due June 30, 1999 (together with the Delayed Closing
Notes delivered pursuant to Section 2 of this Agreement and any Delayed
Closing Notes issued in substitution or exchange therefor pursuant to
Section 12 of this Agreement, the "DELAYED CLOSING NOTES"; the Class A
Notes, the Class B Notes and the Delayed Closing Notes being, collectively,
the "NOTES"). Each of the Class A Notes shall be in substantially the form
of Exhibit A-1 attached hereto, each of the Class B Notes shall be in
substantially the form of Exhibit A-2 attached hereto and each of the
Delayed Closing Notes shall be in substantially in the form of Exhibit A-3
attached hereto, with such amendments, supplements and other modifications
thereto, if any, as shall be approved from time to time by you and the
Company. Capitalized terms used in this Agreement shall have the meanings
specified in Schedule I attached hereto; and references to a "Schedule," an
"Exhibit" or an "Annex" are, unless otherwise specified herein, to a
Schedule, an Exhibit or an Annex attached to this Agreement.
2. SALE AND PURCHASE OF NOTES.
The Company will issue and sell to you and, subject to the
terms and conditions of this Agreement, you will purchase from the Company,
at the First Closing, the Second Closing and each Delayed Closing, in each
case as provided for in Section 3, Notes in the aggregate principal amount
set forth below your name on Annex I hereto.
3. CLOSINGS.
3.1 The sale and purchase of the Notes (THE "FIRST CLOSING
NOTES") to be purchased by you shall occur at the offices of XxXxxxxxx,
Will & Xxxxx, 00 Xxxxxxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, at or about
11:30 A.M. (New York time), at a closing (the "FIRST CLOSING") on or prior
to February 24, 1999 or such other date as may be agreed upon between the
Company and you (the "FIRST CLOSING DATE"). At the First Closing, the
Company will deliver to you the First Closing Notes to be purchased by you
in the form of a single Note (or such greater number of Notes in
denominations of at least $500,000 or integral multiples of $100,000 in
excess thereof as you may request) dated the First Closing Date and
registered in your name (or in the name of your nominee), against delivery
by you to the Company or its order in the amount of the aggregate purchase
price therefor by wire transfer of immediately available funds as provided
in the Paying Agency Agreement; provided, however, that with respect to the
purchase of the Class B Notes the same shall be purchased by the Purchaser
thereof by converting the aggregate amount of principal, interest and fees
that are outstanding on the First Closing Date under the Existing Note
Purchase Agreement into principal outstanding under the Class B Notes. If
at the First Closing the Company shall fail to tender the First Closing
Notes to you as provided above in this Section 3.1 or any of the conditions
specified in Section 4.A shall not have been fulfilled to your
satisfaction, you shall, at your election, be relieved of all further
obligations under this Agreement, without hereby waiving any rights you may
have by reason of such failure or such nonfulfillment.
3.2 The sale and purchase of the Notes (the "SECOND CLOSING
NOTES") to be purchased by you shall occur at the offices of XxXxxxxxx,
Will & Xxxxx, 00 Xxxxxxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, at or about
11:30 A.M. (New York time), at a closing (the "SECOND CLOSING") after the
First Closing Date and on or prior to March 15, 1999 or such other date as
may be agreed upon between the Company and you (the "SECOND CLOSING DATE").
At the Second Closing, the Company will deliver to you the Second Closing
Notes to be purchased by you in the form of a single Note (or such greater
number of Notes in denominations of at least $500,000 or integral multiples
of $100,000 in excess thereof as you may request) dated the Second Closing
Date and registered in your name (or in the name of your nominee), against
delivery by you to the Company or its order in the amount of the aggregate
purchase price therefor by wire transfer of immediately available funds as
provided in the Paying Agency Agreement. If at the Second Closing the
Company shall fail to tender the Second Closing Notes to you as provided
above in this Section 3.2 or any of the conditions specified in Section 4B
as it relates to the Second Closing shall not have been fulfilled to your
satisfaction, you shall, at your election, be relieved of all further
obligations under this Agreement as it relates to the Second Closing Notes,
without hereby waiving any rights you may have by reason of such failure or
such nonfulfillment.
3.3 The sale and purchase of the Delayed Closing Notes to be
purchased by you from time to time (each a "DELAYED CLOSING") from and
after the Second Closing Date and on or prior to May 31, 1999 (each a
"DELAYED CLOSING DATE") shall be subject to the delivery by the Company to
you of the Delayed Closing Notes to be purchased by you in the form of a
single Note dated the relevant Delayed Closing Date and registered in your
name (or in the name of your nominee), against delivery by you to the
Company or its order in the amount of the aggregate purchase price thereof
by wire transfer of immediately available funds as provided in the Paying
Agency Agreement.
4. CONDITIONS TO CLOSINGS.
A. FIRST CLOSING.
Your obligation to purchase and pay for the First Closing Notes
to be sold to you at the First Closing is subject to the fulfillment to
your satisfaction, prior to or at the First Closing Date, of the following
conditions:
4.1 REPRESENTATIONS AND WARRANTIES.
The representations and warranties of the Company contained in
this Agreement and in each of the other Note Documents shall be complete
and correct in all material respects when made and at the time of the First
Closing, before and after giving effect to the issue and sale of the First
Closing Notes and to the application of the proceeds therefrom as
contemplated by Section 5.6.
4.2 NO DEFAULT.
No Default or Event of Default shall have occurred and be
continuing.
4.3 DOCUMENTS REQUIRED.
At or prior to the First Closing, you shall have received the
following documents, each dated as of the First Closing Date (except as
otherwise specified below) and in the form of the respective Exhibit
attached hereto, if any, or otherwise in form and substance satisfactory to
you:
(a) Security Agreement. A security agreement, in substantially
the form of Exhibit B attached hereto (as amended, supplemented or
otherwise modified hereafter from time to time in accordance with the
terms hereof and thereof, the "SECURITY AGREEMENT"), duly executed by
the Company and each of its Subsidiaries (other than Connecticut
Telephone) together with:
(i) certificates representing the Pledged Shares referred
to therein accompanied by undated stock powers executed in
blank, and
(ii) Uniform Commercial Code financing statements, duly
executed by the Company and each of its Subsidiaries under the
Uniform Commercial Code of the State of Illinois, and each
other jurisdiction required to cover the Collateral described
in the Security Agreement (it being agreed that the Company and
each of its Subsidiaries will file such financing statements as
soon as practicable after the date hereof).
(b) Note. A First Closing Note or First Closing Notes, in
substantially the form of Exhibit A-1 and/or A-2 attached hereto,
duly executed by the Company.
(c) Subsidiary Guaranty. A subsidiary guaranty, in
substantially the form of Exhibit D attached hereto (as amended,
supplemented or otherwise modified hereafter from time to time in
accordance with the terms hereof and thereof, the "SUBSIDIARY
GUARANTY") duly executed by each Subsidiary of the Company.
(d) Secretary's Certificate. A certificate from the secretary
or an assistant secretary (or a Person performing similar functions)
of the Company and each of its Subsidiaries certifying:
(i) copies of the resolutions of the board of directors (or
Persons performing similar functions) of the Company and each
of its Subsidiaries approving each of the other Note Documents
to which it is or is to be a party, and of all documents
evidencing other necessary corporate or other necessary action
and governmental approvals, if any, with respect thereto,
(ii) the names and true signatures of the officers of the
Company and each of its Subsidiaries authorized to sign each of
the Note Documents to which it is or is to be a party and the
other agreements, instruments and other documents to be
delivered hereunder and thereunder, and
(iii) true and correct copies of its by-laws and
certificate of incorporation.
(e) Officer's Certificate. An Officer's Certificate certifying
that the conditions specified in Sections 4.1 and 4.2 have been
fulfilled.
(f) Collateral Agency Agreement. A collateral agency agreement,
in substantially the form of Exhibit E attached hereto (as amended,
supplemented or otherwise modified hereafter from time to time in
accordance with the terms hereof and thereof, the "COLLATERAL AGENCY
AGREEMENT"), duly executed by the Collateral Agent and each original
Purchaser.
(g) Paying Agency Agreement. A paying agency agreement, in
substantially the form of Exhibit F attached hereto (as amended,
supplemented or otherwise modified hereafter from time to time in
accordance with the terms hereof and thereof, the "PAYING AGENCY
AGREEMENT"), duly executed by the Company, the Collateral Agent and
each original Purchaser.
4.4 OPINION OF COUNSEL.
You shall have received a favorable opinion, dated the First
Closing Date, from Skadden, Arps, Slate, Xxxxxxx & Xxxx (New York), counsel
for the Company, substantially in the form provided in connection with the
Existing Note Purchase Agreement.
4.5 PAYMENT OF SPECIAL COUNSEL FEES.
Without limiting the provisions of Section 14.1, there shall be
paid from the proceeds of the First Closing Notes (a) the reasonable fees,
charges and disbursements of XxXxxxxxx, Will & Xxxxx in connection with the
Transaction, and (b) the reasonable fees, charges and disbursements of
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx in connection with the Transaction
in an amount not to exceed $12,000.
4.6 CORECOMM ASSET PURCHASE AGREEMENT.
You shall have received true and correct copies of the CoreComm
Asset Purchase Agreement that has been duly executed and delivered by the
parties thereto, and such agreement shall be in form and substance
satisfactory to you. None of the parties to the CoreComm Asset Purchase
Agreement has, or may be reasonably expected to, disclaim or not perform
any of its obligations thereunder, nor has any other Person contested in
any manner the terms of the CoreComm Asset Purchase Agreement or the
transactions contemplated thereby.
4.7 INTERIM DIP ORDER.
On the First Closing Date the Interim DIP Order (a) shall have
been entered upon an application of the Company satisfactory in form and
substance to you, (b) shall be in full force and effect and (c) shall not
have been vacated, stayed, reviewed, rescinded, modified or amended in any
respect.
4.8 FUNDING.
Each Purchaser of First Closing Notes shall have
contemporaneously purchased and duly funded the same.
B. SECOND CLOSING.
Your obligation to purchase and pay for the Second Closing
Notes to be sold to you at the Second Closing is subject to the fulfillment
to your satisfaction, on or prior to the Second Closing Date, of the
following conditions:
4.1 REPRESENTATIONS AND WARRANTIES.
The representations and warranties of the Company contained in
this Agreement and in each of the other Note Documents shall be complete
and correct in all material respects when made and at the time of the
Second Closing, before and after giving effect to the issue and sale of the
Second Closing Notes and to the application of the proceeds therefrom as
contemplated by Section 5.6.
4.2 NO DEFAULT.
No Default or Event of Default shall have occurred and be
continuing.
4.3 DOCUMENTS REQUIRED.
You shall have received a Second Closing Note or Second Closing
Notes, in substantially the form of Exhibit A-1 and/or A-2 attached hereto,
duly executed by the Company.
4.4 FINAL DIP ORDER.
On the Second Closing Date the Final DIP Order (a) shall have
been entered upon an application of the Company satisfactory in form and
substance to you, (b) shall be in full force and effect and (c) shall not
have been vacated, stayed, reversed, rescinded, modified or amended in any
respect.
4.5 FUNDING.
Each Purchaser of Second Closing Notes shall have
contemporaneously purchased its and duly funded the same.
C. DELAYED CLOSINGS.
Your obligation to purchase and pay for the Delayed Closing
Notes to be sold to you at each Delayed Closing is subject to the
fulfillment to your satisfaction, on to the relevant Delayed Closing Date,
of the following conditions:
4.1 DOCUMENTS REQUIRED.
You shall have received a Delayed Closing Note in substantially
the form of Exhibit A-3 attached hereto, duly executed by the Company.
4.2 ASSUMPTION OF CURED CONTRACTS.
The relevant Cured Contract has been assumed pursuant to an
order of the Bankruptcy Court (a) that shall be in full force and effect,
(b) that shall not have been vacated, stayed, reversed, rescinded, modified
or amended in any respect, and (c) for which the time to appeal or seek
rehearing has expired and for which no appeal or motion for rehearing has
been filed.
4.3 FINAL DIP ORDER.
The Final DIP Order (a) shall be in full force and effect and
(b) shall not have been vacated, stayed, reversed, rescinded, modified or
amended in any respect.
4.4 CORECOMM ASSET PURCHASE AGREEMENT.
The CoreComm Asset Purchase Agreement shall not have been
terminated in accordance with Article VIII thereof
5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to you that:
5.1 ORGANIZATION; POWER AND AUTHORITY.
The Company and each of its Subsidiaries are corporations duly
organized, validly existing and in good standing under the laws of their
respective jurisdictions of incorporation, and are duly qualified as a
foreign corporation and are in good standing in each other jurisdiction in
which the ownership, lease or operation of their respective property and
assets or the conduct of their respective businesses requires such
qualification, other than in any such jurisdiction in which the failure to
be so qualified or in good standing could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.
Subject to the terms of the Interim DIP Order and, after the entry thereof,
the Final DIP Order, the Company and each of its Subsidiaries have all
corporate and other necessary power and authority, and the legal right, to
own or to hold under lease the properties they purport to own or hold under
lease and to transact the business they transact and propose to transact.
Subject to the terms of the Interim DIP Order and, after the entry thereof,
the Final DIP Order, the Company and each of its Subsidiaries has all
corporate and other necessary power and authority, and the legal right, to
execute and deliver each of the Note Documents to which it is or is to be a
party, and to perform its obligations thereunder and to consummate the
Transaction. All of the outstanding capital stock of the Company and each
of its Subsidiaries has been validly issued, is fully paid and
non-assessable.
5.2 AUTHORIZATION, ENFORCEABILITY, ETC.
This Agreement and each of the other Note Documents have been
duly authorized by all necessary corporate action (including, without
limitation, all necessary shareholder action) on the part of the Company.
This Agreement has been, and each of the other Note Documents, when
delivered hereunder, will have been duly executed and delivered by the
Company. This Agreement constitutes, and each of the other Note Documents,
when delivered hereunder will constitute, the legal, valid and binding
obligation of the Company, enforceable against such party in accordance
with its terms, except as such enforceability may be limited by (a) the
effect of applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting the enforcement of creditors' rights generally
and (b) general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
5.3 ORGANIZATION AND OWNERSHIP OF SHARES OF SUBSIDIARIES; AFFILIATES.
(a) Schedule 5.3 attached hereto sets forth (i) all of the
Subsidiaries of the Company, showing, as to each such Subsidiary, the
correct name thereof, the jurisdiction of its incorporation and the
percentage of shares of each class of its capital stock or similar
equity interests or membership interests outstanding, that are owned
by the Company and/or one or more of its Subsidiaries.
(b) All of the outstanding shares of capital stock or similar
equity interests of each Subsidiary referred to in Schedule 5.3
attached hereto as being owned by the Company and/or one or more of
its Subsidiaries have been validly issued, are fully paid and
nonassessable and are owned by the Company and/or one or more of its
Subsidiaries free and clear of all Liens, except for the Liens
created under the Collateral Documents and Liens disclosed on
Schedule 9.2(ii).
(c) Neither the Company nor any Subsidiary is a party to or
otherwise subject to any legal restriction or any agreement (other
than the Collateral Documents and customary limitations imposed by
corporate law statutes) restricting the ability of such Subsidiary to
pay dividends out of profits or make any other similar distributions
of profits to the Company or any of its Subsidiaries that owns shares
of capital stock of or similar equity interests in such Subsidiary.
5.4 SECURITY INTERESTS, PRIORITY, ETC.
(a) The Collateral Documents will create a valid and perfected
first priority lien on and security interest in the Collateral (of
the type subject to Articles 8 or 9 of the Uniform Commercial Code)
in your favor, securing the payment of all of the Secured
Obligations, and all of the shares of capital stock of each of the
Subsidiaries of the Company that are purported to comprise part of
the Collateral have been delivered to you, together with undated
stock powers executed in blank, and, upon the filing of the financing
statements, all filings and other actions necessary or desirable to
perfect and protect such lien and security interest will have been
duly made or taken and will be in full force and effect.
(b) Pursuant to Section 364(c)(1) of the Bankruptcy Code, the
Secured Obligations shall at all times constitute a Superpriority
Claim in the Chapter 11 case and in any future Chapter 7 case.
(c) Pursuant to Sections 364 (c)(2), (d)(1) and (d)(2) of the
Bankruptcy Code, the Secured Obligations shall at all times be
secured by a valid and perfected Lien (as provided in the Interim DIP
Order and, after the entry thereof, the Final DIP Order) and security
interest upon all the property, both real and personal, whether now
owned or hereafter acquired, of the Company and each of its
Subsidiaries.
5.5 PRIVATE OFFERING BY THE COMPANY.
(a) Neither the Company nor any Person acting on its behalf has
directly or indirectly offered the Notes or any similar securities
for sale to, or solicited any offer to buy any of the same from, or
otherwise approached or negotiated in respect thereof with, any
Person other than you. Neither the Company nor any Person acting on
its behalf has taken, or will take, any action that would subject the
issuance and sale of the Notes to the registration requirements of
Section 5 of the Securities Act.
(b) Neither the Company nor any Person acting on its behalf has
directly or indirectly offered or sold the Notes by any form of
general solicitation or general advertising (including, without
limitation, any advertisement, article, notice or other communication
published in any newspaper, magazine or similar media or any
broadcast over television or radio or any seminar or meeting whose
attendees have been invited by any form of general solicitation or
general advertising).
5.6 USE OF PROCEEDS; MARGIN REGULATIONS.
(a) The proceeds from the sale of the First Closing Notes and
the Second Closing Notes shall be used, first, to pay the fees,
charges and disbursements of (i) XxXxxxxxx, Will & Xxxxx and (ii)
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx (in an amount not to exceed
$12,000), in each case in connection the Transaction (subject in each
case to subsequent review pursuant to the terms of the Interim DIP
Order), and second, for general corporate purposes of the Company (in
an aggregate amount not to exceed $2,000,000 on the First Closing and
$4,000,000 on the Second Closing) and to pay amounts owing pursuant
to the Existing Note Purchase Agreement. All amounts applied by the
Company for its general corporate purposes shall be consistent with
the February 1, 1999 through June 30, 1999 cash flow presentations,
dated February 18, 1999, in the form of Exhibit G attached hereto.
All the proceeds from the sale of each Delayed Closing Note shall be
used by the Company to cure executory contracts and unexpired leases
(each a "CURED CONTRACT") that have been assumed by the Company and
are to be assigned to CoreComm Limited under the CoreComm Asset
Purchase Agreement pursuant to Section 365 of the Bankruptcy Code.
(b) No part of the proceeds from the sale of the Notes will be
used, directly or indirectly, for the purpose of purchasing or
carrying any "margin stock" (within the meaning of Regulation U) or
for the purpose of purchasing, carrying or trading in any securities
under such circumstances as to involve the Company in a violation of
Regulation X or to involve any broker or dealer in a violation of
Regulation T or U. Upon your request, the Company will furnish you
with a statement to the foregoing effect in conformity with the
requirements of FR Form G-3 referred to in Regulation U. No
indebtedness being reduced or retired out of the proceeds of the
Notes was or will be incurred for the purpose of purchasing or
carrying any "margin stock" (within the meaning of Regulation U) or
any "margin security" (within the meaning of Regulation T). Margin
stock does not constitute more than 25 % of the value of the
consolidated property and assets of the Company and its Subsidiaries.
None of the transactions contemplated by this Agreement (including,
without limitation, the direct and indirect use of proceeds of the
Notes) will violate or result in a violation of the Securities Act or
the Exchange Act or any of the rules and regulations promulgated
thereunder or Regulation T, Regulation U or Regulation X.
5.7 ACCOUNTS.
Neither the Company nor any of its Subsidiaries has any deposit
accounts or other checking or operating accounts other than the accounts
listed on the attached Schedule 5.7.
6. REPRESENTATIONS OF THE PURCHASER.
6.1 PURCHASE FOR INVESTMENT.
You represent that you are purchasing the Notes for your own
account or for one or more separate accounts maintained by you or for the
account of one or more pension or trust funds and not with a view to the
distribution thereof; provided that the disposition of your or their
property shall at all times be within your or their control. You understand
that the Notes have not been registered under the Securities Act and may be
resold only if registered pursuant to the provisions of the Securities Act
or if an exemption from registration is available, except under
circumstances where neither such registration or such an exemption is
required by applicable law, and that the Company is not required to
register the Notes.
6.2 ACCREDITED INVESTOR.
You are an "accredited investor" (as defined in Rule 501 of
Regulation D under the Securities Act) and by reason of your business and
financial experience, and the business and financial experience of those
Persons retained by you to advise you with respect to your investment in
the Notes, you, together with such advisors, have such knowledge,
sophistication and experience in business and financial matters as to be
capable of evaluating the merits and risks of the prospective investment,
are able to bear the economic risk of such investment and, at the present
time, are able to afford a complete loss of such investment. You are not
purchasing the Notes in reliance upon any investigation made by any other
Person.
6.3 SOURCE OF FUNDS.
You represent that at least one of the following statements is
an accurate representation as to each source of funds (a "FUNDS SOURCE") to
be used by you to pay the purchase price of the Notes to be purchased by
you hereunder:
(a) the Funds Source constitutes assets of an "investment fund"
(within the meaning of Part V of the QPAM Exemption) managed by a
"qualified professional asset manager" or "QPAM" (within the meaning
of Part V of the QPAM Exemption), no employee benefit plan's assets
that are included in such investment fund, when combined with the
assets of all other employee benefit plans established or maintained
by the same employer or by an affiliate (within the meaning of
Section V(c)(1) of the QPAM Exemption) of such employer or by the
same employee organization and managed by such QPAM, exceed 20% of
the total client assets managed by such QPAM, the conditions of Parts
l(c) and l(g) of the QPAM Exemption are satisfied, neither the QPAM
nor a person controlling or controlled by the QPAM (applying the
definition of "control" in Section V(e) of the QPAM Exemption) owns
more than a 5% interest in the Company and (i) the identity of such
QPAM and (ii) the names of all employee benefit plans the assets of
which are included in such investment fund have been disclosed to the
Company in writing pursuant to this Section 6.3(a); or
(b) the Funds Source does not include assets of any employee
benefit plan, other than a plan exempt from the coverage of ERISA.
7. PAYMENTS AND PREPAYMENTS.
7.1 REQUIRED PAYMENTS.
(a) The aggregate outstanding principal amount of the Notes,
together with all interest accrued and unpaid thereon and the
Facility Fee, shall be due and payable by the Company on the Maturity
Date. Upon and during the continuance of an Event of Default, the
Company shall pay interest at the Default Rate. All such payments,
together with all other payments required to be made pursuant to the
Note Documents, shall be made by the Company and each of its
Subsidiaries without application to, or order or authorization by,
the Bankruptcy Court or any other Person.
(b) Within two Business Days after the date the Bankruptcy
Court approves a bid (the "OVERBID FACILITY") by a Qualified Bidder
(as defined in the Motion for Order Approving Global Bidding
Procedures, dated February 19, 1999, filed by the Company with the
Bankruptcy Court), other than CoreComm Limited or any of its
Affiliates, with respect to (i) all the assets the subject of the
CoreComm Asset Purchase Agreement or (ii) all the assets the subject
of the CoreComm Asset Purchase Agreement and all the assets or stock
of Connecticut Telephone, the Company shall repay amounts owing to
CoreComm Limited under the Note Documents unless the Company shall
have caused the purchase by a third Person of all the Notes and other
obligations of CoreComm Limited under the Note Documents as required
by the bidding procedures annexed to the CoreComm Asset Purchase
Agreement which was approved by the Bankruptcy Court on February 22,
1999.
(c) The Company shall, and shall cause each of its
Subsidiaries, on the date of receipt by any of them of any proceeds
from a Permitted Disposition to apply all of the same (in the form
received) to repay amounts owing under the Note Documents, such
proceeds, to be applied, subject to Section 21.12 hereof, first, to
the payment of any unpaid fees, costs and expenses, second, to the
payment of accrued interest on the Notes and, third, to the payment
of principal outstanding on the Notes.
7.2 OPTIONAL PREPAYMENTS.
(a) Subject to Section 21.12 hereof, the Company may, at its
option, upon notice as provided in Section 7.2(b), prepay at any time
all, or from time to time any part of, the Notes, in an aggregate
principal amount of not less than $250,000 or integral multiples of
$50,000 in excess thereof (or, if less, the remaining aggregate
principal amount of the Notes outstanding at such time), at 100% of
the aggregate principal amount of the Notes so prepaid.
(b) The Company will give each holder of Notes written notice
of each optional prepayment under this Section 7.2 not less than 1
day and not more than 10 days prior to the date fixed for such
prepayment. Each such notice shall specify the date fixed for such
prepayment, the aggregate principal amount of the Notes to be prepaid
on such date, the principal amount of each Note held by such holder
to be prepaid, and the interest to be paid on the prepayment date
with respect to such principal amount being prepaid and shall state
that such prepayment is to be made pursuant to this Section 7.2.
7.3 ALLOCATION OF PARTIAL PREPAYMENTS.
In the case of each partial prepayment of the Notes, the principal
amount of the Notes to be prepaid shall be allocated (in integral multiples
of $1,000) among all of the Notes at the time outstanding pursuant to this
Agreement in proportion, as nearly as practicable, to the respective unpaid
principal amounts thereof not theretofore called for prepayment.
7.4 MATURITY; SURRENDER, ETC.
In the case of each prepayment of Notes pursuant to this Section
7, the principal amount of each Note to be prepaid shall mature and become
due and payable on the date fixed for such prepayment, together with
interest on such principal amount accrued to such date. From and after such
date, unless the Company shall fail to pay such principal amount when so
due and payable, as aforesaid, interest on such principal amount shall
cease to accrue. Any Note paid or prepaid in full shall be surrendered to
the Company and cancelled and shall not be reissued, and no Note shall be
issued in lieu of any prepaid or repurchased principal amount of any Note.
7.5 NO DISCHARGE; SURVIVAL OF CLAIMS.
Each of the Company and its Subsidiaries agrees that (a) its
Obligations under the Note Documents shall not be discharged by the entry
of an order confirming a Plan of Reorganization (and each of the Company
and its Subsidiaries pursuant to Section 1141 (d)(4) of the Bankruptcy Code
hereby waives any such discharge) and (b) the Superpriority Claim and Lien
granted to the Purchasers pursuant to the Bankruptcy Order shall not be
affected in any manner by the entry of an order confirming a Plan of
Reorganization.
7.6 OPTIONAL SET-OFF OF PAYMENTS.
On the Closing Date (as defined in the CoreComm Asset Purchase
Agreement) CoreComm Limited may, in its sole discretion, reduce its
purchase price obligations under the CoreComm Asset Purchase Agreement in
exchange for a dollar-for-dollar reduction in the amounts owing by the
Company to CoreComm Limited under this Agreement on account of principal,
interest and fees.
8. AFFIRMATIVE COVENANTS.
From the date of this Agreement and, thereafter, so long as any of
the Notes shall be outstanding, the Company will perform and comply with
each of the following covenants:
8.1 FINANCIAL AND BUSINESS INFORMATION.
The Company will furnish to each holder of Notes without cost to
you:
(a) Requested Information. With reasonable promptness, any
information relating to the financial condition, business,
operations, assets, liabilities or properties of the Company or any
of its Subsidiaries, including but not limited to information
regarding FCC activity or state regulatory activity or relating to
the ability of the Company or any of its Subsidiaries to perform its
obligations under any of the Note Documents to which it is a party as
from time to time may be reasonably requested by any such holder of
Notes which is an Institutional Investor, including, without
limitation, all monthly bank statements of the Company and its
Subsidiaries and any reports from financial advisors, investment
bankers or consultants to the Company or its Subsidiaries including,
without limitation, reports of Xxx Xxxx & Associates.
(b) Chapter 11 Case Notices. Promptly upon transmission or
receipt thereof, copies of all pleadings, motions, applications and
all other documents filed or delivered in connection with the Chapter
11 case, including any of the foregoing which is filed with the
Bankruptcy Court, distributed by or on behalf of the Company or any
of its Subsidiaries in the Chapter 11 case or which is served upon
the Company or any of its Subsidiaries, provided that prior to the
filing any of the foregoing by or on behalf of the Company with
respect to the Collateral the Purchasers shall receive copies
thereof.
(c) Weekly Cash Flow Statements. Within two Business Days after
the end of each calendar week, a satisfactory cash flow statement for
the immediately preceding calendar week.
8.2 COMPLIANCE WITH LAW.
The Company will and will cause its Subsidiaries to comply with
all laws, ordinances, rules, regulations, including, without limitation,
the Communications Act, FCC Rules, any state regulatory requirements and
those relating to copyright and orders to which each of them and their
properties are subject and all applicable restrictions imposed on each of
them and their properties by any Governmental Authority (including, without
limitation, all Environmental Laws), and will obtain and maintain in effect
all licenses, certificates, permits, franchises, consents and other
authorizations of any Governmental Authority or public body or authority or
any subdivision thereof or any other third party including any radio,
television or other license, Permit, certificate or approval granted or
issued by the FCC or any other Governmental Authority (except for filings
to perfect security interest granted pursuant to this Agreement or any
other Note Document) necessary for the ownership or leasing and operation
of their respective properties or the conduct of their respective
businesses, in each case to the extent necessary to ensure that any
noncompliance with such laws, ordinances, rules, regulations or orders or
any failure to obtain or maintain in effect such licenses, certificates,
permits, franchises, consents and other authorizations, either individually
or in the aggregate, could not reasonably be expected to have a Material
Adverse Effect.
8.3 MAINTENANCE OF PROPERTIES.
The Company will and will cause its Subsidiaries maintain and
keep, or cause to be maintained and kept, their respective properties and
assets, owned or leased, used or useful in the conduct of its business,
that, either individually or in the aggregate, are Material in good repair,
working order and condition (other than ordinary wear and tear and as a
result of casualty and condemnation), so that the business carried on in
connection therewith may be properly conducted in all material respects at
all times.
8.4 PRESERVATION OF CORPORATE EXISTENCE, ETC.
Except as permitted by Section 9.5 hereof, the Company will and
will cause each of its Subsidiaries to at all times preserve and keep in
full force and effect (i) its corporate existence and its Material rights
(charter and statutory) and (ii) the corporate existence of each of its
Subsidiaries and all Material permits, licenses, approvals, rights,
privileges and franchises thereof.
8.5 USE OF PROCEEDS.
The Company will use the proceeds of the issue and sale of the
Notes solely for the purposes set forth in Section 5.6(a).
8.6 CAPITAL STOCK.
The Company will at all times be the direct, legal and beneficial
owner of 100% of the outstanding capital stock of each of its directly
owned Subsidiaries as set forth in Schedule 5.3, and the indirect legal and
beneficial owner of 100% of the outstanding capital stock of each of its
indirectly owned Subsidiaries free and clear of any lien, security
interest, option or other charge or encumbrance, except for Permitted Liens
described in clause (a) of the definition of Permitted Liens, Liens created
by this Agreement or the Collateral Documents and except as a result of
sales of stock in accordance with Section 9.5.
8.7 FULL COOPERATION.
The Company agrees that, at all times, it will cooperate fully
with you and provide all information reasonably requested by you in
connection with any refinancing of the Notes or the other Indebtedness of
the Company, including information, term sheets, drafts of agreements with
strategic partners, lenders, acquirers or equity investors.
8.8 OBLIGATIONS WITH RESPECT TO STOCK AND ASSETS OF SUBSIDIARIES.
Subject to the sale of stock or assets pursuant to the CoreComm
Asset Purchase Agreement or a Permitted Disposition, the Company will cause
all of the shares of capital stock of each direct Subsidiary of the
Company, now or hereafter owned by the Company to be pledged to you
pursuant to the terms and conditions of the Security Agreement or a
security agreement in substantially the form of Exhibit B attached hereto
and otherwise in form and substance reasonably acceptable to you. In
addition, the Company will cause each of its direct Subsidiaries, now or
hereafter owned by the Company, to become a party to the Subsidiary
Guaranty or a guaranty agreement in substantially the form of Exhibit D
attached hereto and otherwise in form and substance reasonably acceptable
to you. In furtherance of the foregoing provisions of this Section 8.8, the
Company agrees that at the time that any Person becomes a direct
Subsidiary, the Company shall so notify you and shall take such steps as
are necessary to cause 100% (or, if less, the full amount owned, directly
or indirectly, by the Company), of the shares of capital stock of such
Person to be delivered to you (together with undated stock powers executed
in blank.
8.9 PERFORMANCE OF MATERIAL CONTRACTS.
Except to the extent that the Company is authorized by the
Bankruptcy Court in the Chapter 11 case to reject an "executory contract"
under Section 365 of the Bankruptcy Code or during the pendency before the
Bankruptcy Court considering the rejection thereof, the Company will and
will cause each of its Subsidiaries to perform and observe all of the terms
and provisions of each Material Contract to be performed or observed by it,
maintain each such Material Contract in full force and effect, enforce each
such Material Contract in accordance with its terms, take all such action
to such end as may be from time to time requested by the Purchaser and,
upon request of the Purchaser, make to each other party to each such
Material Contract such demands and requests for information and reports or
for actions as the Company is entitled to make under such Material
Contract, and cause each of its Subsidiaries to do so except, in any case,
where the failure to do so, either individually or in the aggregate could
not reasonably be expected to have a Material Adverse Effect. Should the
Company fail to perform its obligations under a Material Contract pending
rejection thereof by the Bankruptcy Code, the Company shall immediately
notify the Purchaser of its election to do so. All requests by the Company
to reject an "executory contract" under Section 365 of the Bankruptcy Court
shall be made in good faith and in accordance with the provisions of the
Bankruptcy Code.
8.10 ACCOUNTS.
The Company shall instruct each bank listed on Schedule 5.7, not
later than 10 days after the First Closing, to transfer funds to the
Account at the end of each Business Day, in same day funds, in an amount
equal to the credit balance of the account at such bank; provided, that the
Company shall not be required to cause the transfer of the funds in the
accounts of Connecticut Telephone.
8.11 NOTICE TO LIENHOLDERS.
At the time and otherwise as required by Federal Rules of
Bankruptcy Procedure Rule 4001, the Company shall provide notice to the
relevant creditors of the Company and its Subsidiaries in regard to the
proceedings relating to the Final DIP Order.
8.12 PAYMENT OF FEES.
The Company will pay the Facility Fee on the Maturity Date.
9. NEGATIVE COVENANTS.
From the date of this Agreement and, thereafter, so long as any of
the Notes shall be outstanding, the Company will perform and comply with
each of the following covenants:
9.1 LIMITATIONS ON TRANSACTIONS WITH AFFILIATES.
Except as otherwise permitted in this Agreement, the Company will
not and will not permit any of its Subsidiaries to directly or indirectly
enter into or engage in any transaction or series of related transactions
(including, without limitation, the purchase, lease, sale or exchange of
property or assets of any kind or the rendering of any service) with any of
its Affiliates other than Connecticut Telephone that is not a wholly owned
Subsidiary of the Company, except in the ordinary course and pursuant to
the reasonable requirements of the Company's or such Subsidiary's business
and upon fair and reasonable terms no less favorable to the Company or such
Subsidiary than would be obtainable in a comparable arm's-length
transaction with a Person not an Affiliate thereof, provided that the
foregoing restrictions of this Section 9.1 shall not apply (a) to any tax
sharing agreements in existence on the date of closing and approved by the
Purchaser and (b) to any transactions described on Schedule 9.1 hereto.
9.2 LIMITATIONS ON LIENS.
The Company will not and will not permit any of its Subsidiaries
to (a) create, incur, assume or suffer to exist any Lien on or with respect
to any of its property or assets of any character (including, without
limitation, accounts), whether now owned or hereafter acquired, (b) sign or
file or suffer to exist under the Uniform Commercial Code or any similar
statute of any jurisdiction, an effective financing statement (or the
equivalent thereof) that names the Company or any of its Subsidiaries as
debtor, (c) sign or suffer to exist any security agreement authorizing any
secured party thereunder to file such financing statement (or the
equivalent thereof), or (d) assign any accounts or other right to receive
income; excluding, however, from the operation of the foregoing
restrictions the following:
(i) Permitted Liens;
(ii) Liens existing on the date of this Agreement and
described in Schedule 9.2(ii) attached hereto; and
(iii) Liens created by this Agreement or that otherwise
secure the payment of the Notes.
If the Company shall create, assume or suffer to exist any Lien upon any of
its property or assets, or the property or assets of any of its
Subsidiaries, whether now owned or hereafter acquired, other than any Liens
expressly permitted under clauses (i) through (iii) of this Section 9.2,
the Company will make or cause to be made effective provision whereby the
Notes and all of the other Obligations of the Company under the Note
Documents will be secured equally and ratably with any and all other
Obligations of the Company and its Subsidiaries secured thereby; provided
that the securing of the Notes and all of the other Obligations of the
Company under the Note Documents equally and ratably with such other
Obligations of the Company and its Subsidiaries will in no way be deemed to
remedy or waive any Default or Event of Default resulting from the
incurrence, assumption, existence or continuation of any such Lien.
9.3 LIMITATIONS ON INDEBTEDNESS.
The Company will not and will not permit any of its Subsidiaries
to create, incur, assume or suffer to exist any Indebtedness other than:
(a) Indebtedness arising under the Note Documents; and
(b) Indebtedness listed on Schedule 9.3.
9.4 LIMITATIONS ON LEASE OBLIGATIONS.
The Company will not and will not permit any of its Subsidiaries
at any time to create, incur, assume or suffer to exist, any obligations as
lessee for the rental or hire of real or personal property of any kind
under leases or agreements to lease, including, but not limited to,
Capitalized Leases, except as identified on Schedule 9.4.
9.5 LIMITATIONS ON MERGERS, CONSOLIDATIONS, SALES OF ASSETS, ETC.
Except for Permitted Dispositions in which the Company has
complied with Section 7.1(c), the Company will not and will not permit any
of its Subsidiaries to merge or consolidate with or into, or convey,
transfer, lease or otherwise dispose (whether in one transaction or a
series of transactions) of its property and assets (whether now owned or
hereafter acquired) to, any Person.
9.6 LIMITATIONS ON DIVIDENDS AND OTHER PAYMENT RESTRICTIONS AFFECTING
SUBSIDIARIES.
(a) The Company will not and will not permit any of its
Subsidiaries to declare or pay any dividends, purchase, redeem, retire
or otherwise acquire for value any of its capital stock or any
warrants, rights or options to acquire such capital stock, now or
hereafter outstanding, return any capital to its stockholders as such,
make any distribution of assets, capital stock, warrants, rights,
options, obligations or securities to its stockholders as such or issue
or sell any capital stock or any warrants, rights or options to acquire
such capital stock other than any dividend or distribution made by a
direct or indirect wholly owned Subsidiary of the Company to its parent
corporation.
(b) The Company will not and will not permit any of its
Subsidiaries to directly or indirectly create or otherwise cause,
incur, assume, suffer or otherwise permit to exist or become effective
any consensual encumbrance or restriction of any kind on the ability of
any Subsidiary (i) to pay dividends or to make any other distribution
on any shares of capital stock of (or other ownership or profit
interest in) such Subsidiary owned by the Company or any of its
Subsidiaries, (ii) to pay or to subordinate any Indebtedness owed to
the Company or any of its Subsidiaries, (iii) to make loans or advances
to the Company or any of its Subsidiaries or (iv) to transfer any of
its property or assets to the Company or any of its Subsidiaries (other
than any property or assets subject to a Lien permitted hereby).
9.7 LIMITATIONS ON PREPAYMENTS OF INDEBTEDNESS, ETC.
If any Default or Event of Default has occurred and is continuing
or would occur, directly or indirectly, as a consequence thereof, the
Company will not and will not permit any of its Subsidiaries (a) after the
issuance thereof, to amend, modify or otherwise change in any manner (or
permit the amendment, modification or other change in any manner of) any of
the terms of any Indebtedness of the Company or any such Subsidiary if such
amendment, modification or change would shorten the final maturity or
average life to maturity of, or require any payment to be made sooner than
originally scheduled on, such Indebtedness, increase the interest rate
applicable thereto or change any subordination provision thereof, (b) make
(or give any notice with respect thereto) any voluntary or optional
payment, prepayment, redemption or acquisition for value of any
Indebtedness (other than the Note or Notes) of the Company or any such
Subsidiary (including, without limitation, by way of depositing money or
securities with the trustee therefor before the date required for the
purpose of paying when due) of any Indebtedness of the Company or any such
Subsidiary, or refund, refinance, replace or exchange any other
Indebtedness for any such Indebtedness or (c) amend, modify or otherwise
change its articles of incorporation or bylaws (or other similar
organizational documents) if such amendment, modification or change, either
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect.
9.8 LIMITATIONS ON NEGATIVE PLEDGES.
The Company will not permit any of its Subsidiaries to enter into,
assume or suffer or permit to exist any agreement prohibiting, conditioning
or otherwise restricting the creation or assumption of any Lien upon its
properties or assets, whether now owned or hereafter acquired, or requiring
the grant of any assignment or security for such obligation if an
assignment or security is given for some other obligation, other than:
(a) the Note Documents;
(b) in connection with any Indebtedness described on Schedule 5.19
attached hereto to the extent such agreement is in effect on the date
hereof;
(c) any such agreement prohibiting other encumbrances on specific
property and assets of the Company or any of its Subsidiaries, which
encumbrance secures the payment of Indebtedness incurred solely to
acquire, construct or improve such property or assets or to finance the
purchase price therefor and which Indebtedness is otherwise permitted
to be incurred under the terms of this Agreement;
(d) any agreement setting forth customary restrictions on the
subletting, assignment or transfer of any property or asset that is a
lease, license, conveyance or contract of similar property or assets;
(e) any restriction or encumbrance with respect to any Subsidiary
of the Company imposed pursuant to an agreement that has been entered
into for the sale, transfer or other disposition of all or
substantially all of the property and assets of such Subsidiary so long
as such sale or disposition is otherwise expressly permitted under the
terms of this Agreement; and
(f) any agreement evidencing Indebtedness outstanding on the date
a Subsidiary of the Company first becomes a Subsidiary of the Company
or any of its Subsidiaries.
9.9 LIMITATIONS ON CHANGES IN FISCAL YEAR.
The Company will not and will not permit any of its Subsidiaries
to change its fiscal year.
9.10 LIMITATIONS ON SPECULATIVE REAL ESTATE INVESTMENTS.
Notwithstanding anything to the contrary set forth in this
Agreement, the Company will not and will not permit any of its Subsidiaries
to acquire, lease, assume or otherwise invest in any real property solely
for investment purposes.
9.11 LIMITATION ON INVESTMENTS.
The Company will not and will not permit any of its Subsidiaries
to make or hold any Investment in any Person other than (i) purchases of
assets permitted under Section 9.12, (ii) Investments in Cash Equivalents
and (iii) existing Investments set forth on Schedule 9.11.
9.12 LIMITATION ON ASSET PURCHASES.
The Company will not and will not permit any of its Subsidiaries
to purchase any assets other than in the ordinary course of business
consistent with past practice.
9.13 LIMITATION ON CAPITAL STOCK.
The Company will not and will not permit any of its Subsidiaries
to (a) purchase, redeem or otherwise acquire for value any shares of any
capital stock or any warrants, rights or options to acquire any such
shares, now or hereafter outstanding, or the voluntary prepayment,
redemption or repurchase in respect of any debt; or (b) issue any capital
stock or any warrants, rights or options to acquire any such capital stock
other than employee stock options issued pursuant to plans approved or to
be approved by the Company's shareholders and other than issuances of
capital stock upon the exercise of warrants and/or conversion of
convertible securities in each case existing as of the date hereof.
9.14 LIMITATION ON TERMINATION OF LICENSES.
Except as disclosed on Schedule 9.14, the Company will not and
will not permit any of its Subsidiaries to lose, fail to hold, or fail to
renew for a full license term, forfeit, revoke, rescind or materially
impair any FCC Licenses or any Certificates, except where such loss,
failure to renew, forfeiture, revocation, recission or impairment could not
be reasonably expected to have a Material Adverse Effect.
9.15 LIMITATION ON LINE OF BUSINESS.
The Company will not and will not permit any of its Subsidiaries
to engage in any line of business other than the business engaged in by the
Company and its Subsidiaries on the date hereof, in a manner that is
consistent with past practice.
9.16 LIMITATION ON TERMINATION OF EMPLOYER PLANS.
The Company will not and will not permit any of its Subsidiaries
to create or otherwise cause to exist or become effective any consensual
risk of termination of any single employer plan or multiemployer plan by
the Pension Benefit Guaranty Corporation if the occurrence of such event
could reasonably be expected to have a Material Adverse Effect.
9.17 LIMITATION ON INVESTMENT COMPANY ACT.
The Company will not and will not permit any of its Subsidiaries
to be or become an investment company subject to the registration
requirements of the Investment Company Act of 1940, as amended.
9.18 LIMITATIONS ON AMENDMENTS.
The Company will not permit and will not permit any of its
Subsidiaries to, at any time amend, modify or change in any manner, or
consent or acquiesce to any of the foregoing, the CoreComm Asset Purchase
Agreement, the Interim DIP Order or, after the entry thereof, the Final DIP
Order.
9.19 LIMITATION ON PRESS RELEASES.
The Company will not and will not permit any of its Subsidiaries
to issue a press release or other public disclosure containing any
reference to you or any of your Affiliates without your express written
consent except as otherwise may be required by applicable law.
9.20 LIMITATION ON CREATION OF SUBSIDIARIES.
The Company will not and will not permit any of its Subsidiaries
to create any Subsidiary not in existence on the date hereof.
9.21 LIMITATION ON SALE AND LEASEBACK TRANSACTIONS.
The Company shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, enter into, assume, guarantee or
otherwise become liable with respect to, any Sale and Leaseback
Transaction, unless (a) the Company or such Subsidiary, as the case may be,
receives consideration at the time of such Sale and Leaseback Transaction
at least equal to the Fair Market Value (as evidenced by a Board Resolution
delivered to you) of the Property or assets subject to such transaction;
and (b) the Attributable Indebtedness of the Company or such Subsidiary
with respect thereto is included as Indebtedness and would be permitted to
be incurred under Section 9.3 hereof and any Liens granted thereby would be
permitted under Section 9.2 hereof.
9.22 CHAPTER 11 CLAIMS
The Company will not and will not permit any of its Subsidiaries to incur,
create, assume, apply for, suffer to exist or permit any other
superpriority claim or other claim which is pari passu with or senior to
the claims of the holders of the Notes, against the Company, any of its
Subsidiaries or any of their properties or assets. The Liens and
superpriority claims granted to the Collateral Agent and the Purchasers
pursuant to this Agreement and the Interim DIP Order and the Final DIP
Order shall be subject and subordinate to a carve-out (the "CARVE-OUT") for
(a) following the occurrence and during the continuance of a Default or an
Event of Default, the payment of (I) allowed professional fees and
disbursements incurred by the professionals retained pursuant to Bankruptcy
327(a) or (e) under a general retainer (excepting ordinary course
professionals) or Bankruptcy Code Section 1103(a) by the Company and any
statutory committees appointed in the Chapter 11 cases and (II) the
expenses of any member of any such committee allowed under Bankruptcy Code
Section 503(b)(3)(F), in both cases in a cumulative aggregate amount not to
exceed $500,000 and (b) quarterly fees required to be paid pursuant to 28
U.S.C. ss. 1930(a)(6) and any fees payable to the Clerk of the Bankruptcy
Court. Notwithstanding anything to the contrary contained herein, the
Carve-Out shall not be available to pay professional fees and disbursements
incurred in connection with the initiation or prosecution of any claims,
causes of action, litigation or proceedings which asserts (x) claims or
causes of action against the Noteholders and/or (y) challenges or raises
any defenses to the Obligations or prepetition obligations or any
prepetition or postpetition lien of the Purchasers. As long as no Default
or Event of Default shall have occurred and be continuing, the Company
shall pay compensation and reimbursement of expenses as authorized by any
applicable order of the Bankruptcy Court, as the same may be payable, and
the amount so paid shall not reduce the Carve-Out.
9.23 CONFLICTING AGREEMENTS, ORDERS OR ACTIONS.
The Company will not and will not permit any of its Subsidiaries
to, enter into any stipulation or agreement, request or permit or suffer
itself to become subject to any order entered in the Chapter 11 case, or
take or permit any other Person to take any other action which does or
could conflict or materially interfere with any of the rights, privileges,
benefits or remedies of the Purchasers under any of Note Documents, or
materially diminish or impair the practical realization of any such right,
privilege, benefit or remedy, including, without limitation, permit an
order dismissing the Chapter 11 case (or any part thereof) unless the
Obligations under the Note Documents have been repaid in full in cash.
9.24 RESTRICTIONS ON USE OF CASH.
Neither the Company nor any of its Subsidiaries shall use any of
their funds for the same purpose for which the proceeds of the Delayed
Closing Notes are used.
10. [INTENTIONALLY OMITTED.]
11. EVENTS OF DEFAULT.
11.1 EVENTS OF DEFAULT.
An "Event of Default" shall exist if any of the following
conditions or events shall occur and be continuing (each, an "EVENT OF
DEFAULT"):
(a) the Company defaults in the payment of any principal on
any Note when the same becomes due and payable, whether by
scheduled maturity or at a date fixed for prepayment or repurchase
or by declaration, demand or otherwise; or
(b) the Company defaults in the payment of any interest on
any Note, or the Company defaults in the payment of any other
amount owing under any of the Note Document (subject to a five day
cure period), when the same becomes due and payable, whether by
scheduled maturity or at a date fixed for prepayment or repurchase
or by declaration, demand or otherwise; or
(c) the Company defaults in the performance of or compliance
with any term, covenant or agreement contained in any of the Note
Documents on its part to be performed or complied with and such
default shall remain unremedied for 10 Business Days after the
earlier of the first date on which (i) a Responsible Officer
obtains becomes aware of such default and (ii) the Company
receives written notice of such default from any holder of a Note;
or
(d) any representation or warranty made or deemed made by or
on behalf of the Company or any of its Subsidiaries or by any
officer of the Company or any of its Subsidiaries under or in
connection with this Agreement or any other Note Document or in
any writing furnished in connection with the Transaction or any of
the other transactions contemplated hereby proves to have been
false or incorrect in any material respect on the date as of which
it was made or deemed to have been made, and the failure of such
representation and warranty to be true and correct shall have a
Material Adverse Effect; or
(e) there shall be any relief of the automatic stay pursuant
to 11 U.S.C. ss. 362 in the Chapter 11 case in which the Person
obtaining such relief makes any claim aggregating in excess of
$250,000; or
(f) any provision of any Note Document after delivery thereof
pursuant to Section 4 or 8.11 shall for any reason (other than
pursuant to the express terms thereof) cease to be valid and
binding on or enforceable against the Company or any of its
Subsidiaries intended to be a party to it or to give you any of
the rights, powers or privileges purported to be created
thereunder, or the Company shall so state in writing; or
(g) any Collateral Document after delivery thereof pursuant
to Section 4 or 8.11 shall for any reason (other than pursuant to
the terms thereof) cease to create a valid and perfected first
priority lien on and security interest in the Collateral purported
to be covered thereby; or
(h) except for the transactions contemplated by the CoreComm
Asset Purchase Agreement or as a result of one or more Permitted
Dispositions, there shall occur a Change of Control; or
(i) the Chapter 11 case shall be dismissed or converted to a
case under Chapter 7 of the Bankruptcy Code; or a trustee or an
examiner under Chapter 7 or Chapter 11 of the Bankruptcy Code (or
any Person having powers similar to a trustee or an examiner)
shall be appointed in the Chapter 11 case; or the Company or any
of its Subsidiaries shall make a motion for, or in support of, the
entry of any of the foregoing; or
(j) the Bankruptcy Court shall enter an order granting relief
from the automatic stay applicable under Section 362 of the
Bankruptcy Code (i) to the holder of any security interest to
permit foreclosure (or the granting of a deed in lieu of
foreclosure of the like) in any assets of the Company or any of
its Subsidiaries (other than the holders of the Notes with respect
to security interests created by Collateral Documents) or (ii) to
holders of any Indebtedness which have a value in excess of
$100,000 in the aggregate; or
(k) the Interim DIP Order (except for modifications
contemplated by the Final DIP Order) or, after the entry thereof,
the Final DIP Order, shall be reversed, rescinded, stayed,
vacated, amended or modified in any respect; or
(l) the Bankruptcy Court shall deny the entry of the Final
DIP Order or shall fail to enter the Final DIP Order on or before
March 15, 1999; or
(m) all the sales contemplated by the CoreComm Asset Purchase
Agreement shall not have been consummated pursuant to Section 363
of the Bankruptcy Code either (i) in accordance with terms
contained in the CoreComm Asset Purchase Agreement or (ii)
pursuant to another sale approved by the Purchasers in their sole
and absolute discretion, in each case by May 31, 1999; or
(n) the expenses of the Company and its Subsidiaries shall
have increased cumulatively by more than 5% since the date of the
First Closing or 10% during any calendar week, in each case as
measured against the cash flow presentations delivered pursuant to
the Section 5.6; or
(o) the CoreComm Asset Purchase Agreement shall terminate in
accordance with Article VIII thereof; or
(p) all the stock and assets of Connecticut Telephone shall
not have been sold, on terms and for a price satisfactory to you,
by May 31, 1999.
11.2 ACCELERATION.
If any Event of Default shall occur and be continuing, the
Required Holders may at any time, at its or their option, by notice or
notices to the Company, declare all of the Notes then outstanding to be
immediately due and payable. Upon any Notes becoming due and payable under
this Section 11.2, such Notes will forthwith mature and the entire unpaid
principal amount of such Notes, plus all accrued and unpaid interest
thereon and the Facility Fee shall all be immediately due and payable, in
each and every case without presentment, demand, protest or further notice
of any kind, all of which are hereby waived by the Company, provided that
the foregoing shall be subject to the terms of the Interim DIP Order and,
after the entry thereof, the Final DIP Order. The Company acknowledges, and
the parties hereto agree, that each holder of a Note has the right to
maintain its investment in the Notes free from repayment by the Company
(except as herein specifically provided for).
11.3 OTHER REMEDIES.
If one or more Events of Default shall occur and be continuing,
and irrespective of whether any Notes have become or have been declared
immediately due and payable under Section 11.2(a), the holder of any Note
at the time outstanding may proceed to protect and enforce the rights of
such holder by an action at law, suit in equity or other appropriate
proceeding, whether for the specific performance of any agreement contained
herein or in any other Note Document, or for an injunction against a
violation of any of the terms hereof or thereof, or in aid of the exercise
of any power granted hereby or thereby or by law or otherwise.
11.4 RESCISSION.
At any time after any Notes have been declared due and payable
pursuant to Section 11.2(b), the holders by unanimous vote and written
notice to the Company, may rescind and annul any such declaration and its
consequences if (a) the Company has paid all overdue interest on the Notes,
all principal and other amounts on any Notes that are due and payable and
are unpaid other than by reason of such declaration, and all interest on
such overdue principal, and (to the extent permitted by applicable law) any
overdue interest in respect of the Notes, at the Default Rate, (b) all
Defaults and Events of Default, other than nonpayment of amounts that have
become due solely by reason of such declaration, have been remedied or have
been waived pursuant to Section 16, and (c) no judgment or decree has been
entered for the payment of any monies due pursuant hereto, to the Notes or
to any other Note Document. No rescission and annulment under this Section
11.4 will extend to or affect any subsequent Default or Event of Default or
impair any right consequent thereon. 11.5 RESTORATION OF RIGHTS AND
REMEDIES.
If any holder of any Note has instituted any proceeding to enforce
any right or remedy under this Agreement or any other Note Document and
such proceeding has been discontinued or abandoned for any reason, or has
been determined adversely to such holder, then, and in each such case, the
Company and the other holders of Notes shall, subject to any determination
in such proceeding, be restored severally and respectively to their former
positions hereunder and, thereafter, all rights and remedies of the holders
of Notes shall continue as though no such proceeding had been instituted.
11.6 NO WAIVERS OR ELECTION OF REMEDIES, EXPENSES, ETC.
No course of dealing and no delay on the part of any holder of any
Note in exercising any right, power or remedy shall operate as a waiver
thereof or otherwise prejudice such holder's rights, powers or remedies. No
right, power or remedy conferred by this Agreement or by any other Note
Document upon any holder thereof shall be exclusive of any other right,
power or remedy referred to herein or therein or now or hereafter available
at law, in equity, by statute or otherwise. Without limiting the
obligations of each of the Company under Section 14, the Company will pay
to the holder of each Note on demand such further amount as shall be
sufficient to cover all costs and expenses of such holder incurred in any
enforcement or collection under this Section 11, including, without
limitation, reasonable attorneys' fees, expenses and disbursements.
12. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES.
12.1 REGISTRATION OF NOTES.
The Company shall keep at its principal executive office a
register for the registration and registration of transfers of Notes. The
name and address of each holder of one or more Notes, each transfer thereof
and the name and address of each transferee of one or more Notes shall be
registered in such register. Prior to due presentment for registration of
transfer, the Person in whose name any Note shall be registered shall be
deemed and treated as the owner and holder thereof for all purposes hereof,
and the Company shall not be affected by any notice or knowledge to the
contrary. The Company shall give to any holder of a Note that is an
Institutional Investor, promptly upon request therefor, a complete and
correct copy of the names and addresses of all registered holders of Notes.
12.2 TRANSFER AND EXCHANGE OF NOTES.
Upon surrender of any Note at the principal executive office of
the Company for registration of transfer or exchange (and in the case of a
surrender for registration of transfer, duly endorsed or accompanied by a
written instrument of transfer duly executed by the registered holder of
such Note or his attorney duly authorized in writing and accompanied by the
address for notices of each transferee of such Note or part thereof), the
Company shall execute and deliver, at the Company's expense (except as
provided below), one or more new Notes (as requested by the holder thereof)
in exchange therefor, in an aggregate principal amount equal to the unpaid
principal amount of the surrendered Note. Each such new Note shall be
payable to such Person as such holder may request and shall be in
substantially the form of Exhibit A attached hereto. Each such new Note
shall be dated and bear interest from the date to which interest shall have
been paid on the surrendered Note or dated the date of the surrendered Note
if no interest shall have been paid thereon. The Company may require
payment of a sum sufficient to cover any stamp tax or governmental charge
imposed in respect of any such transfer of Notes. Notes shall not be
transferred in denominations of less than $500,000; provided, that, if
necessary to enable the registration of transfer by a holder of its entire
holding of Notes, one Note may be in a denomination of less than $500,000.
Any transferee, by its acceptance of a Note registered in its name (or the
name of its nominee), shall be deemed to have made the representations set
forth in Section 6.1.
12.3 REPLACEMENT OF NOTES.
Upon receipt by the Company of evidence reasonably satisfactory to
it of the ownership of and the loss, theft, destruction or mutilation of
any Note (which evidence shall be, in the case of an Institutional
Investor, notice from such Institutional Investor of such ownership and
such loss, theft, destruction or mutilation), and
(a) in the case of loss, theft or destruction, of indemnity
reasonably satisfactory to it (provided that if the holder of such
Note is, or is a nominee for, an original Purchaser or any other
Institutional Investor, such Person's own unsecured agreement of
indemnity shall be deemed to be satisfactory), or
(b) in the case of mutilation, upon surrender and
cancellation thereof,
the Company, at its own expense, shall execute and deliver, in lieu
thereof, a new Note, dated and blaring interest from the date to which
interest shall have been paid on such lost, stolen, destroyed or mutilated
Note or dated the date of such lost, stolen, destroyed or mutilated Note if
no interest shall have been paid thereon.
13. PAYMENTS ON NOTES.
The Company will pay all sums becoming due on such Note for
principal and interest by the method and at the address specified for such
purpose below your name on the signature page attached hereto, or by such
other method or at such other address as you shall have from time to time
specified to the Company in writing for such purpose, without the
presentation or surrender of such Note or the making of any notation
thereon, except that upon written request of the Company made concurrently
with or reasonably promptly after payment or prepayment in full of any
Note, you shall surrender such Note for cancellation, reasonably promptly
after any such request, to the Company at its principal executive office.
Prior to any sale, transfer or other disposition of any Note held by you or
your nominee, you will, at your election, either endorse thereon the amount
of principal paid thereon and the last date to which interest has been paid
thereon or surrender such Note to the Company in exchange for a new Note or
Notes pursuant to Section 12.2. The Company will afford the benefits of
this Section 13 to any Institutional Investor that is the direct or
indirect transferee of any Note purchased by you under this Agreement and
that has made the same agreement relating to such Note as you have made in
this Section 13.
14. EXPENSES, ETC.
14.1 TRANSACTION EXPENSES.
Whether or not any aspect of the Transaction or any of the other
transactions contemplated hereby are consummated, the Company will pay all
costs and expenses of (i) Xxxxxxx Xxxxx Global Allocation Fund, Inc.
(including reasonable attorneys' fees of its special counsel, local or
other counsel, financial advisors and outside accountants) incurred by it
in connection with the preparation, execution, delivery and administration
of this Agreement, the Notes and the other Note Documents and (ii) each
Purchaser in connection with any amendments, waivers or consents under or
in respect of this Agreement, the Notes or any of the other Note Documents
(whether or not such amendment, waiver or consent becomes effective),
including, without limitation: (a) the Facility Fee, (b) the costs and
expenses incurred in enforcing or defending (or determining whether or how
to enforce or defend) any rights under this Agreement, the Notes or any of
the other Note Documents or in responding to any subpoena or other legal
process or informal investigative demand issued in connection with this
Agreement, the Notes or any of the other Note Documents, or by reason of
being a holder of any Note, and (c) the costs and expenses, including
financial advisors' fees, incurred in connection with any work-out,
renegotiating or restructuring of the Transaction or any of the other
transactions contemplated hereby, by the Notes and by the other Note
Documents. The Company further agrees to indemnify you and each of your
transferees from and hold you and each of them harmless from and against
any and all present and future transfer, stamp, documentary or other
similar taxes, assessments or charges made by any Governmental Authority by
reason of the execution, delivery or performance of this Agreement, any
Note or any other Note Document and all costs, expenses, taxes, assessments
and other charges incurred in connection with any filing or perfection of
any lien, pledge or security interest contemplated by any of the Collateral
Documents or any other document referred to therein. The Company will pay,
and will save you and each other holder of a Note harmless from, all claims
in respect of any fees, costs or expenses, if any, of brokers and finders
(other than those retained by you).
14.2 INDEMNITY.
The Company agrees to indemnify the Purchaser and its affiliates
and their respective directors, officers, employees, agents, attorneys,
investment advisors and controlling persons (the Purchaser and each such
person being an "INDEMNIFIED PARTY") from and against any and all losses,
claims, damages and liabilities, joint or several, to which such
Indemnified Party may become subject under any applicable federal or state
law, or otherwise, and related to or arising out of the Note Documents
(including with respect to any actions taken or not taken by the Collateral
Purchaser pursuant to Section 21.10 with respect to the Collateral) and
will reimburse any Indemnified Party for all expenses (including reasonable
counsel fees and expenses) as they are incurred in connection with the
investigation of, preparation for or defense of any pending or threatened
claim or any action or proceeding arising therefrom, whether or not such
Indemnified Party is a party and whether or not such claim, action or
proceeding is initiated or brought by or on behalf of the Company . The
Company will not be liable under the foregoing indemnification provision to
the extent that any loss, claim, damage, liability or expense is found in a
final judgment by a court to have resulted from the Purchaser's bad faith
or gross negligence. The Company also agrees that no Indemnified Party
shall have any liability (whether direct or indirect, in contract or tort
or otherwise) to the Company or its security holders or creditors related
to or arising out of the performance by the Purchaser of the services
contemplated by, this Agreement except to the extent that any loss, claim,
damage or liability is found in a final judgment by a court to have
resulted from the Purchaser's bad faith or gross negligence.
If the indemnification of an Indemnified Party provided for in
this Agreement is for any reason held unenforceable, the Company agrees to
contribute to the losses, claims, damages and liabilities for which such
indemnification is held unenforceable (a) in such proportion as is
appropriate to reflect the relative benefits to the Company, on the one
hand, and the Purchaser, on the other hand, of the Notes as contemplated by
this Agreement (whether or not the Notes is consummated) or (b) if (but
only if) the allocation provided for in clause (a) is for any reason held
unenforceable, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (a) but also the relative fault of
the Company, on the one hand, and the Purchaser, on the other hand, as well
as any other relevant equitable considerations. The Company agrees that for
the purposes of this paragraph the relative benefits to the Company and the
Purchaser of the Notes as contemplated shall be deemed to be in the same
proportion that the total amount of the Notes, as the case may be, bears to
the fees paid or to be paid to the Purchaser under this Agreement or in
connection with the Notes; provided, however, that, to the extent permitted
by applicable law, in no event shall the Indemnified Parties be required to
contribute an aggregate amount in excess of the aggregate fees actually
paid to the Purchaser under this Agreement or in connection with the Notes.
The Company agrees that, without the Purchaser's prior written
consent, it will not settle, compromise or consent to the entry of any
judgment in any pending or threatened claim, action or proceeding in
respect of which indemnification could be sought under the indemnification
provision of this Agreement (whether or not the Purchaser or any other
Indemnified Party is an actual or potential party to such claim, action or
proceeding), unless such settlement, compromise or consent includes an
unconditional release of each Indemnified Party from all liability arising
out of such claim, action or proceeding.
In the event that an Indemnified Party is requested or required to
appear as a witness in any action brought by or on behalf of or against the
Company or any affiliate of the Company in which such Indemnified Party is
not named as a defendant, the Company agree to reimburse the Purchaser for
all reasonable expenses incurred by it in connection with such Indemnified
Party's appearing and preparing to appear as such a witness, including,
without limitation, the fees and disbursements of its legal counsel.
Anything in this Section 14.2 to the contrary notwithstanding, the
Company shall not make any payments under this Section 14.2 to CoreComm
Limited on account of any obligation owing by the Company to CoreComm
Limited under the CoreComm Asset Purchase Agreement or with respect to the
transactions contemplated thereunder.
14.3 SURVIVAL.
The obligations of the Company under this Section 14 shall survive
the payment or transfer of any Note, the enforcement, amendment or waiver
of any provision of this Agreement, the Notes or any other Note Document,
and the termination of this Agreement and, in respect of any Person who was
at any time a Purchaser or in whose name or for whose benefit such Person
held any Note, the date on which such person no longer holds, or no longer
holds in the name of or for the benefit of such other Person, any Note.
15. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT.
All representations and warranties contained herein and in the
other Note Documents shall survive the execution and delivery of this
Agreement and the Notes, the purchase or transfer by you of any Note or
portion thereof or interest therein and the payment of any Note, and may be
relied upon by any subsequent holder of a Note, regardless of any
investigation made at any time by or on behalf of you or any other holder
of a Note. All statements contained in any certificate or other instrument
delivered by or on behalf of the Company or any Subsidiary pursuant to this
Agreement or any other Note Document shall be deemed representations and
warranties of each of the Company and its Subsidiaries under this
Agreement. Subject to the immediately preceding sentence, this Agreement,
the Notes and the other Note Documents embody the entire agreement and
understanding between you and the Company and supersede all prior
agreements and understandings relating to the subject matter hereof.
16. AMENDMENT AND WAIVER.
16.1 REQUIREMENTS.
This Agreement and the Notes may be amended, and the observance of
any term hereof or of the Notes may be waived (either retroactively or
prospectively), with (and only with) the written consent of the Company and
all the Purchasers (or when CoreComm Limited is not a holder of the Notes,
the Required Holders), except that when CoreComm Limited is not a holder of
the Notes (a) no amendment or waiver of any of the provisions of Section 1,
2, 3, 4, 5, 6 or 20 hereof, or any defined term (as it is used therein),
will be effective as to you unless consented to by you in writing, and (b)
no such amendment or waiver may, without the written consent of the holder
of each Note at the time outstanding affected thereby:
(i) subject to the provisions of Section 11 relating to
acceleration or rescission, change the amount or time of any
prepayment or repurchase or payment of principal of, or reduce the
rate or change the time of payment or method of computation of
interest on, the Notes;
(ii) change the percentage of the aggregate principal amount
of the Notes the holders of which are required to consent to any
such amendment or waiver;
(iii) subordinate the Notes (or any of them) to any other
obligations of the Company now or hereafter existing; (iv) reduce
or limit the Company's liability with respect to any Obligations
owing to you or any other holder of any Note;
(v) release a material portion of the Collateral in any
transaction or any series of related transactions;
(vi) permit the creation, incurrence, assumption or existence
of any Lien on a material portion of the Collateral in any
transaction or any series of related transactions to secure any
obligations other than obligations owing to you and the other
holders of Notes under the Note Documents; or
(vii) amend any of Sections 7, 11.1 (a), 11.1(b), any of 11.2
through 11.6, 17 or 19.
If any action is taken under the Note Documents at the request or
with the consent of less than all the Noteholders, each consenting or
requesting Noteholder shall, contemporaneously with the making of such
request or granting of such consent, notify the non-consenting or
non-requesting Noteholder of the same in reasonable detail.
16.2 SOLICITATION OF HOLDERS OF NOTES.
(a) Solicitation. The Company will provide each holder
of the Notes (irrespective of the amount of Notes then owned by it
at the time) with sufficient information, sufficiently far in
advance of the date a decision is required, to enable such holder
to make an informed and considered decision with respect to any
proposed amendment, waiver or consent in respect of any of the
provisions hereof or of the other Note Documents. The Company will
deliver executed or true and correct copies of each amendment,
waiver or consent effected pursuant to the provisions of this
Section 16 to each holder of outstanding Notes promptly following
the date on which it is executed and delivered by, or receives the
consent or approval of, the requisite holders of Notes.
(b) Payment. The Company will not directly or indirectly
pay or cause to be paid any remuneration, whether by way of
supplemental or additional interest, fee or otherwise, or grant
any security, to any holder of Notes as consideration for or as an
inducement to the entering into by any holder of Notes or any
waiver or amendment of any of the terms and provisions hereof or
of the other Note Documents, unless such remuneration is
concurrently paid, or security is concurrently granted, on the
same terms, ratably to each holder of Notes then outstanding even
if such holder did not consent to such waiver or amendment.
16.3 BINDING EFFECT, ETC.
Any amendment or waiver consented to as provided in this Section
16 applies equally to all holders of Notes and is binding upon them, upon
each future holder of any Note and upon the Company without regard to
whether such Note has been marked to indicate such amendment or waiver. No
such amendment or waiver will extend to or affect any obligation, covenant,
agreement, Default or Event of Default not expressly amended or waived or
impair any right consequent thereon. No course of dealing between the
Company and the holder of any Note nor any delay in exercising any right,
power or privilege hereunder or under any other Note Document shall operate
as a waiver of any right of any holder of such Note; nor shall any single
or partial exercise of any such right, power or privilege preclude any
other or further exercise thereof or the exercise of any other right, power
or privilege. The remedies provided under this Agreement and the other Note
Documents are cumulative and not exclusive of any rights and remedies
provided by applicable law.
16.4 NOTES HELD BY COMPANY, ETC.
Solely for the purpose of determining whether the holders of the
requisite percentage of the aggregate principal amount of Notes then
outstanding approved or consented to any amendment, waiver or consent to be
given under this Agreement or any other Note Document, or have directed the
taking of any action provided herein or in any other Note Document to be
taken upon the direction of the holders of a specified percentage of the
aggregate principal amount of Notes then outstanding, Notes directly or
indirectly owned by the Company or any of its Affiliates shall be deemed
not to be outstanding.
17. NOTICES.
All notices and communications provided for hereunder shall be in
writing and delivered (a) by telecopy if the sender on the same day sends a
confirming copy of such notice by a recognized overnight delivery service
(charges prepaid), (b) by registered or certified mail with return receipt
requested (postage prepaid) or (c) by a recognized overnight delivery
service (with charges prepaid). Any such notice must be sent:
(i) if to you or your nominee, to you or it at the
address specified for such communications on the signature page
attached hereto, or at such other address as you or it shall have
specified to the Company in writing;
(ii) if to any other holder of any Note, to such holder at
such address as such other holder shall have specified to the
Company in writing; or
(iii) if to the Company at its address set forth on the
first page of this Agreement (Telecopier No. 312-474-0814) to the
attention of its most senior financial officer, or at such other
address as the Company shall have specified to the holder of each
Note in writing.
All notices and communications provided for under this Section 17 will be
deemed given and effective only when actually received.
18. REPRODUCTION OF DOCUMENTS.
This Agreement, each of the other Note Documents and all documents
relating thereto, including, without limitation, (a) consents, waivers and
modifications of this Agreement or any other Note Document that may
hereafter be executed, (b) documents received by you at the First Closing
and the Second Closing (except the Notes themselves), and (c) financial
statements, certificates and other information previously or hereafter
furnished to you, may be reproduced by you by any photographic,
photostatic, microfilm, microcard, miniature photographic or other similar
process and you may destroy any original document so reproduced. The
Company agrees and stipulates that, to the extent permitted by applicable
law, any such reproduction shall be admissible in evidence as the original
itself in any judicial or administrative proceeding (whether or not the
original is in existence and whether or not such reproduction was made by
you in the regular course of business) and any enlargement, facsimile or
further reproduction of such reproduction shall likewise be admissible in
evidence. This Section 18 shall not prohibit the Company or any other
holder of Notes from contesting any such reproduction to the same extent
that it could contest the original, or from introducing evidence to
demonstrate the inaccuracy of any such reproduction.
19. CONFIDENTIAL INFORMATION.
You hereby agree to maintain the confidentiality of all
Confidential Information in accordance with procedures adopted by you in
good faith to protect confidential information of third parties delivered
to you; provided that you may deliver or disclose Confidential Information
to (a) your directors, officers, employees, agents, attorneys and
affiliates (to the extent such disclosure reasonably relates to the
administration of the investment represented by your Notes), (b) your
counsel or your financial and other professional advisors who agree to hold
confidential the Confidential Information substantially in accordance with
the terms of this Section 19, (c) any other holder of any Note or to the
Agent or any Bank, (d) any Institutional Investor to which you sell or
offer to sell such Note or any part thereof or any participation therein
(if such Person has agreed in writing prior to its receipt of such
Confidential Information to be bound by the provisions of this Section 19),
(e) any Person from which you offer to purchase any security of the Company
(if such Person has agreed in writing prior to its receipt of such
Confidential Information to be bound by the provisions of this Section 19),
(f) any federal or state regulatory authority having jurisdiction over you,
or (g) any other Person to which such delivery or disclosure may be
necessary or appropriate (i) to effect compliance with any law, rule,
regulation or order applicable to you, (ii) in response to any subpoena or
other legal process, (iii) in connection with any litigation to which you,
any other holder of any Note or the Agent are a party or (iv) if an Event
of Default shall have occurred and be continuing, to the extent you may
reasonably determine such delivery and disclosure to be necessary or
appropriate in the enforcement or for the protection of the rights and
remedies under your Notes, this Agreement and the other Note Documents.
Each holder of a Note, by its acceptance of a Note, will be deemed to have
agreed to be bound by and to be entitled to the benefits of this Section 19
as though it were a party to this Agreement. Upon the reasonable request of
the Company in connection with the delivery to any holder of a Note of
information required to be delivered to such holder under this Agreement or
requested by such holder (other than a holder that is a party to this
Agreement or its nominee), such holder will enter into an agreement with
the Company embodying the provisions of this Section 19.
20. SUBSTITUTION OF PURCHASER.
You shall have the right to substitute any one of your Affiliates
as the purchaser of the Notes that you have agreed to purchase hereunder,
by written notice to the Company, which notice shall be signed by both you
and such Affiliate, shall contain such Affiliate's agreement to be bound by
this Agreement and shall contain a confirmation by such Affiliate of the
accuracy with respect to it of the representations set forth in Section 6.
Upon receipt of such notice, wherever the word "you" is used in this
Agreement (other than in this Section 20), such word shall be deemed to
refer to such Affiliate in lieu of you. In the event that such Affiliate is
so substituted as a purchaser hereunder and such Affiliate thereafter
transfers to you all of the Notes then held by such Affiliate, upon receipt
by the Company of notice of such transfer, wherever the word "you" is used
in this Agreement (other than in this Section 20), such word shall no
longer be deemed to refer to such Affiliate, but shall refer to you, and
you shall have all the rights of an original holder of the Notes under this
Agreement.
21. MISCELLANEOUS.
21.1 SUCCESSORS AND ASSIGNS.
All covenants and other agreements contained in this Agreement by
or on behalf of any of the parties hereto bind and inure to the benefit of
their respective successors and assigns (including, without limitation, any
subsequent holder of a Note) whether so expressed or not.
21.2 PAYMENTS DUE ON NON-BUSINESS DAYS.
Anything in this Agreement or the Notes to the contrary
notwithstanding, any payment of principal of or interest on any Note that
is due on a date other than a Business Day shall be made on the next
succeeding Business Day without including the additional days elapsed in
the computation of the items payable on such next succeeding Business Day.
21.3 SATISFACTION REQUIREMENT.
Except as otherwise provided herein, or in any other Note
Document, if any agreement, certificate or other writing, or any action
taken or to be taken, is by the terms of this Agreement or any other Note
Document required to be satisfactory to you or to the Required Holders, the
determination of such satisfaction shall be made by you or the Required
Holders, as the case may be, in the sole and exclusive judgment (exercised
in good faith) of the Person or Persons making such determination.
21.4 SEVERABILITY.
Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall (to the full extent permitted by
law) not invalidate or render unenforceable such provision in any other
jurisdiction.
21.5 CONSTRUCTION.
Each covenant contained herein shall be construed (absent express
provision to the contrary) as being independent of each other covenant
contained herein, so that compliance with any one covenant shall not
(absent such an express contrary provision) be deemed to excuse compliance
with any other covenant. Where any provision herein refers to action to be
taken by any Person, or which such Person is prohibited from taking, such
provision shall be applicable whether such action is taken directly or
indirectly by such Person.
21.6 COMPUTATION OF TIME PERIODS.
In this Agreement, in the computation of periods of time from a
specific date to a later specified date, the word "from" means "from and
including", the word "through" means "through and including", and the words
"to" and "until" each mean "to but not excluding".
21.7 COUNTERPARTS.
This Agreement may be executed in any number of counterparts, each
of which shall be an original but all of which together shall constitute
one instrument. Each counterpart may consist of a number of copies hereof,
each signed by less than all, but together signed by all, of the parties
hereto.
21.8 GOVERNING LAW; SUBMISSION TO JURISDICTION, ETC.
(a) This Agreement shall be governed by, and construed and
enforced in accordance with, the law of the State of New York.
(b) Each of the parties hereto hereby irrevocably and
unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of any New York state court or federal
court of the United States of America sitting in New York, New
York, and any appellate court from any thereof, in any action or
proceeding arising out of or relating to this Agreement, the Notes
or the other Note Documents, or for recognition or enforcement of
any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such
action or proceeding may be heard and determined in any such New
York state court or, to the extent permitted by applicable law, in
such federal court. Each of the parties hereto agrees that a final
judgment in any such action or proceeding shall be conclusive and
may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by applicable law. Nothing in this
Agreement shall affect any right that any party may otherwise have
to bring any action or proceeding relating to this Agreement or
the Notes in the courts of any jurisdiction.
(c) Each of the parties hereto irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do
so, any objection that it may now or hereafter have to the laying
of venue of any suit, action or proceeding arising out of or
relating to this Agreement, the Notes or the other Note Documents
in any New York state or federal court. Each of the parties hereto
hereby irrevocably waives, to the fullest extent permitted by
applicable law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.
(d) To the extent that the Company has or hereafter may
acquire any immunity from the jurisdiction of any court or from
any legal process (whether through service or notice, attachment
prior to judgment, attachment in aid of execution, execution or
otherwise) with respect to itself or its property, the Company
hereby irrevocably waives such immunity in respect of its
obligations under this Agreement and the Notes.
(e) THE PARTIES HEREBY IRREVOCABLY WAIVE ALL RIGHT TO TRIAL BY
JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON
CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO ANY OF
THE NOTE DOCUMENTS, THE TRANSACTIONS CONTEMPLATED THEREBY OR THE
ACTIONS OF THE AGENT OR THE PURCHASER IN THE NEGOTIATION,
ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.
21.9 BANKRUPTCY WAIVERS.
The Company and each of its Subsidiaries waives, to the fullest
extent permitted by applicable law, all claims, remedies, defenses or
courses of action arising under Sections 506, 510, 543, 544, 545, 547, 548,
549 and 553 as it relates to this Agreement and the other Note Documents.
21.10 PERMITTED DISPOSITIONS.
Provided that the Company applies all the proceeds from each
Permitted Disposition to repay the Obligations as provided in Section
7.1(b), the terms of Section 8.4, 8.6, 8.9, 8.11, 9.5, 9.14 or otherwise
contained as the Note Documents which prohibit the same shall be
inoperative and of no force and effect.
21.11 REPURCHASE PROVISIONS
Anything in any Note Document to the contrary notwithstanding,
Xxxxxxx Xxxxx Global Allocation Fund, Inc. or any of its Affiliates may at
any time in its sole and absolute direction (including during the
continuance of any Default or Event of Default) purchase all or any part of
the Notes held by CoreComm Limited and its Affiliates and their successors
and assigns, and CoreComm Limited, such Affiliates and their successors and
assigns shall sell such Notes if it is paid an amount equal to the
aggregate principal amount of the Notes, being so purchased and the related
accrued and unpaid interest thereon.
21.12 SUBORDINATION, ETC.
(a) The holders of Class A Notes and Delayed Closing Notes' Liens
on the Collateral shall be prior and superior to any Liens of holders of
Class B Notes therein, and the holders of Class B Notes expressly
acknowledge and agree that their Liens therein are subordinate to the Liens
of the holders of Class A Notes and Delayed Closing Notes. The priorities
established herein are applicable without regard to (i) the date a loan,
advance or extension of credit is made to the Company or any other
obligations are incurred by the Company, (ii) the time or order of
attachments, perfection, filing or recording of the Liens or the time or
order of filing of financing statements and other security documents or the
giving or failure to give notice of the acquisition of any such Lien, and
(iii) the rules of priority established under the Uniform Commercial Code
or other laws of a relevant state relating to the priority of Liens or the
provisions of the Bankruptcy Code or any state insolvency laws.
(b) The obligations of the Company to the holders of Class A Notes
and Delayed Closing Notes (including any interest accruing on such Notes)
shall first be paid in full before any payment or distribution by the
Company or from its assets, whether in cash, securities or other property,
shall be made to holders of Class B Notes on account of the Company's
obligations to holders of Class B Notes, except that with respect to the
proceeds of Permitted Dispositions, the holders of the Class A Notes shall
be paid first, the holders of the Class B Notes shall be paid second, and
the holders of the Delayed Closing Notes shall be paid third Any payment or
distribution by the Company or from its assets, whether in cash, securities
or other property, which would otherwise (but for these provisions) be
payable or deliverable in respect of the obligations of the Company to
holders of Class B Notes (or holders of Delayed Closing Notes, in the case
of proceeds of Permitted Dispositions), shall be paid or delivered directly
to holders of Class A Notes and Delayed Closing Notes (or the holders of
Class A Notes and, after the Class A Notes have been paid in full, Class B
Notes, in the case of proceeds of Permitted Dispositions) until the
obligations of the Company to holders of Class A Notes and Delayed Closing
Notes (or the holders of the Class A Notes and Class B Notes, in the case
of proceeds of Permitted Dispositions) (including any interest accruing on
such Notes) shall have been paid in full.
(c) Except for the foregoing subordination in clauses (a) and (b),
all the Notes shall be identical in all respects and entitled to all the
same right, title and interest pursuant to the Note Documents. The
provisions of this Section 21.12 shall define the relative rights of the
Noteholders and shall not affect the obligations of the Company, which
shall remain absolute and unconditional, to comply with all the terms of
the Note Documents.
(d) By executing this Agreement, CoreComm Limited consents to the
granting of a security interest in the CoreComm Asset Purchase Agreement in
favor of the Collateral Agent pursuant to the Security Agreement.
If you are in agreement with the foregoing, please sign the form
of agreement on the accompanying counterpart of this Agreement and return
it to the Company, whereupon the foregoing shall become a binding agreement
between you and the Company.
Very truly yours,
Company:
USN COMMUNICATIONS, INC.
By: /s/ Xxxxxx X. Gavllet
___________________________
Name: Xxxxxx X. Xxxxxxxx
Title:
The foregoing is hereby agreed to as of the date first above written.
XXXXXXX XXXXX GLOBAL
ALLOCATION FUND, INC.
By: /s/ Xxxx Xxx X'Xxxxxxx
__________________________
Name: Xxxx Xxx X'Xxxxxxx
Title: Authorized Signatory, V.P. MLAM
Address for Notices:
Address: 000 Xxxxxxxx Xxxx Xxxx
Xxxxxxxxxx, XX 00000
Telecopier: (000) 000-0000
Payment Instructions:
Citibank N.A., New York
ABA #000-000-000
Beneficiary Bank A/C#: 00000000
Xxxxx Brothers Xxxxxxxx & Co.
Beneficiary A/C#: 8116915
Ref: Global Allocation Fund
CORECOMM LIMITED
By: /s/ Xxxxxxx X. Xxxxxxx
______________________________
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
Address for Notices:
Address: 000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Telecopier: (000) 000-0000
Payment Instructions:
SCHEDULE I
DEFINED TERMS
As used in this Agreement, the following terms shall have
the respective meanings set forth below (such meanings to be equally
applicable to both the singular and plural forms of the term defined):
"ACCOUNT" means the Concentration Account of the Company
at Xxxxxx Trust & Savings Bank Account No. 432-329-1).
"AFFILIATE" means, with respect to any Person, any other
Person that, directly or indirectly, controls, is controlled by or
is under common control with such Person, or is a director or
officer of such Person. For purposes of this definition, the term
"control" (including the terms "controlling", "controlled by" and
"under common control with") of a Person means the possession,
direct or indirect, of the power to vote 5% or more of the Voting
Stock of such Person or to direct or cause the direction of the
management and policies of such Person, whether through the
ownership of Voting Stock, by contract or otherwise. For purposes
hereof, the Purchaser and its Affiliates shall not be considered
Affiliates of the Company.
"AGREEMENT" means this Note Purchase Agreement, as
amended, supplemented or otherwise modified from time to time.
"BANKRUPTCY CODE" shall mean The Bankruptcy Reform Act
of 1978, codified as 11 U.S.C. ss. 101 et seq., as heretofore and
hereafter amended from time to time, and any successor act or
statute.
"BANKRUPTCY COURT" shall mean the United States
Bankruptcy Court for Delaware or any other court having
jurisdiction over the Case.
"BENEFIT LIABILITIES" has the meaning specified in
Section 3 of ERISA.
"BUSINESS DAY" means any day other than a Saturday, a
Sunday or a day on which commercial banks in New York, New York,
are required or authorized by law to be closed.
"CAPITALIZED LEASE" means any lease with respect to which
the lessee is required concurrently to recognize the acquisition
of an asset and the incurrence of a liability in accordance with
GAAP.
"CARVE-OUT PAYMENTS" has the meaning provided in Section
9.23.
"CASH EQUIVALENTS" means, at any time, (a) any evidence
of Indebtedness with a maturity of 180 days or less issued or
directly and fully guaranteed or insured by the United States of
America or any agency or instrumentality thereof (provided, that
the full faith and credit of the United States of America is
pledged in support thereof); (b) certificates of deposit or
acceptances with a maturity of 180 days or less of any financial
institution that is a member of the Federal Reserve System having
combined capital and surplus and undivided profits of not less
than $500,000,000; (c) certificates of deposit with a maturity of
180 days or less of any financial institution that is not
organized under the laws of the United States, any state thereof
or the District of Columbia that are rated at least A-1 by S&P or
at least P-1 by Xxxxx'x or at least an equivalent rating category
of another nationally recognized securities rating agency; (d)
repurchase agreements and reverse repurchase agreements relating
to marketable direct obligations issued or unconditionally
guaranteed by the government of the United States of America or
issued by any agency thereof and backed by the full faith and
credit of the United States of America, in each case maturing
within 180 days from the date of acquisition; provided that the
terms of such agreements comply with the guidelines set forth in
the Federal Financial Agreements of Depository Institutions With
Securities Dealers and Others, as adopted by the Comptroller of
the Currency on October 31, 1985.
"CERCLA" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended from time to
time.
"CERCLIS" means the Comprehensive Environmental Response,
Compensation and Liability Information System maintained by the
U.S. Environmental Protection
"CERTIFICATES" means any state or federal certificates of
operating authority of the Company or its Subsidiaries.
"CHANGE OF CONTROL" shall be deemed to occur if (a) the
sale, conveyance, transfer or lease (other than to the Company or
any wholly-owned Subsidiary of the Company), whether direct or
indirect, of all or substantially all of the assets of the Company
or of the Company and its Subsidiaries taken as a whole to any
"person" or "group" (within the meaning of Sections 13(d)(3) and
14(d)(2) of the Exchange Act or any successor provision to either
of the foregoing, including any group acting for the purpose of
acquiring, holding or disposing of securities within the meaning
of Rule 13d-5(b)(i) under the Exchange Act) shall have occurred;
or (b) any "person" or "group" (within the meaning of Sections
13(d)(3) and 14(d)(2) of the Exchange Act or any successor
provision to either of the foregoing, including any group acting
for the purpose of acquiring, holding or disposing of securities
within the meaning of Rule 13d-5(b)(i) under the Exchange Act),
other than any Permitted Holder or Permitted Holders, becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange
Act) of more than 35 percent of the total voting power of all
classes of the Voting Stock of the Company (including any
warrants, options or rights to acquire such Voting Stock),
calculated on a fully diluted basis, and such voting power
percentage is greater than or equal to the total voting power
percentage then beneficially owned by the Permitted Holders in the
aggregate; or (c) during any period of two consecutive years,
individuals who at the beginning of such period constituted the
board of directors of the Company (together with any new directors
whose election or appointment by such board or whose nomination
for election by the stockholders of the Company was approved by a
vote of a majority of the directors then still in office who were
either directors at the beginning of such period or whose election
or nomination for election was previously so approved) cease for
any reason to constitute a majority of the board of directors of
the Company then in office.
"CHAPTER 11 CASE" means , collectively, the Chapter 11
cases of the Company and its Subsidiaries under Chapter 11 of the
Bankruptcy Code, Case No. 99-383 through 395, including any
conversion of such case under Chapter 7 of the Bankruptcy Code.
"CLASS A NOTES" has the meaning specified in Section 1.
"CLASS B NOTES" has the meaning specified in Section 1.
"COLLATERAL" means all "Collateral" referred to in the
Collateral Documents and all other property and assets that are or
are intended under the terms of the Collateral Documents to be
subject to any Lien in favor of you.
"COLLATERAL AGENCY AGREEMENT" has the means specified in
Section A. 4.3(f).
"COLLATERAL AGENT" means PricewaterhouseCoopers LLP, and
its successors and assigns as Collateral Agent under the
Collateral Agency Agreement.
"COLLATERAL DOCUMENTS" means, collectively, the Security
Agreement, the Collateral Agency Agreement, the Paying Agency
Agreement each other security or pledge agreement entered into
pursuant to Section 8.11 and each other agreement that creates or
purports to create or perfect a Lien in favor of you.
"COLLATERAL PURCHASER" has the meanings specified in
Section 21.10.
"COMMUNICATIONS ACT" means the Communications Act of
1934, as amended, 47 U.S.C. sec. 151 et seq.
"COMPANY" has the meaning specified on page one of this
Agreement.
"CONFIDENTIAL INFORMATION" means information delivered to
you by or on behalf of the Company or any of its Subsidiaries in
connection with this Agreement or the Transaction or the other
transactions contemplated hereby that is proprietary in nature and
that was financial in nature or clearly marked, labeled or
otherwise adequately identified when received by you as being
confidential information of the Company or such Subsidiary, but
does not include any such information that (a) is or was generally
available to the public (other than as a result of a breath of
your confidentiality obligations hereunder), (b) becomes known or
available to you on a nonconfidential basis other than through
disclosure by the Company or any of its Subsidiaries or (c)
constitutes financial statements delivered to you under Section
5.4 or 8.1 that are otherwise publicly available.
"CONNECTICUT TELEPHONE" means USN Wireless, Inc. and its
Subsidiaries.
"CORECOMM ASSET PURCHASE AGREEMENT" means, the Asset
Purchase Agreement, dated as of February 19, 1999, among the
Company, certain of its Subsidiaries and CoreComm Limited.
"CURED CONTRACT" has the meaning specified in Section 5.14.
"CURRENT VALUE" has the meaning specified in Section 3 of
ERISA.
"DEFAULT" means any Event of Default or any event or
condition that would constitute an Event of Default but for the
requirement that notice be given or time elapse or both.
"DEFAULT RATE" means that rate of interest that is the
greater of 3 % per annum above the rate of interest stated in
clause (a) of the first paragraph of the Notes.
"DELAYED CLOSING" has the meaning specified in Section
3.3.
"DELAYED CLOSING DATE" has the meaning specified in
Section 3.3.
"DELAYED CLOSING NOTES" has the meaning specified in
Section 1.
"EMPLOYEE BENEFIT PLAN" has the meaning specified in
Section 3 of ERISA.
"ENVIRONMENTAL ACTION" means any action, suit, demand,
demand letter, claim, notice of noncompliance or violation, notice
of liability or potential liability, investigation, proceeding,
consent order or consent agreement relating in any way to any
Environmental Law, any Environmental Permit or any Hazardous
Materials or arising from alleged injury or threat to health,
safety or the environment, including, without limitation, (a) by
any Governmental Authority for enforcement, cleanup, removal,
response, remedial or other actions or damages and (b) by any
Governmental Authority or other third party for damages,
contribution, indemnification, cost recovery, compensation or
injunctive relief.
"ENVIRONMENTAL LAW" means any federal, state, local or
foreign statute, law, ordinance, rule, regulation, code, order,
writ, judgment, injunction, decree or judicial, ministerial or
agency interpretation, policy or guidance relating to pollution or
to protection of the environment, health, safety or natural
resources, including, without limitation, those relating to the
use, handling, transportation, treatment, storage, disposal,
release or discharge of Hazardous Materials.
"ENVIRONMENTAL PERMIT" means any permit, approval,
license, identification number or other authorization required
under any Environmental Law.
"ERISA" means the Employee Retirement Income Security Act
of 1974, as amended from time to time, and the regulations
promulgated and the rulings issued thereunder from time to time.
"ERISA AFFILIATE" means any Person that for purposes of
Title IV of ERISA is a member of the controlled group of the
Company or any of the Guarantors, or under common control with the
Company or any of the Guarantors, within the meaning of Section
414 of the Internal Revenue Code.
"EVENT OF DEFAULT" has the meaning specified in Section 11.
"EXCHANGE ACT" means the Securities Exchange Act of 1934,
as amended from time to time, and the regulations promulgated and
the rulings issued thereunder from time to time.
"EXISTING NOTE PURCHASE AGREEMENT" means the Note
Purchase Agreement, dated as of the November 18, 1998, between the
Company and Xxxxxxx Xxxxx Global Allocation Fund, Inc., as amended
pursuant to the First Amendment, dated January 15, 1999, and the
Second Amendment, dated February 8, 1999.
"FACILITY FEE" means (a) in the case of Xxxxxxx Xxxxx
Global Allocation Fund, Inc., $90,000 (or, if the Notes of Xxxxxxx
Xxxxx Global Allocation Fund, Inc. have not been paid in full by
June 1, 1999, $670,000) and (b) in the case of CoreComm Limited,
$90,000 (or, if the Notes of CoreComm Limited have not been paid
in full by June 1, 1999, $180,000), such Facility Fee to be
payable to relevant Purchaser on the Maturity Date.
"FCC LICENSES" means the aggregate authority granted by,
or documents issued by, the FCC to the Company or any of its
Subsidiaries permitting the Company or any of its Subsidiaries, to
render, provide or engage in telecommunications or
telecommunications service within the jurisdiction of the FCC,
including authority that is the subject of an application or
request filed with the FCC by the Company or any of its
Subsidiaries.
"FCC RULES" means Title 47 of the Code of Federal
Regulations, as amended at any time and from time to time, and FCC
decisions issued pursuant to the adoption of such regulations.
"FILING DATE" shall mean February 18, 1999, the date on
which the Reorganization was commenced.
"FINAL DIP ORDER" shall mean an order of the Bankruptcy
Court, in form and substance satisfactory to the Purchaser, that
is entered pursuant to Section 364(c) and (d) of the Bankruptcy
Code and contains the finding that the Purchaser has extended such
credit in good faith and is entitled to the full protection of
Section 364(e) of the Bankruptcy Code, certified by the Clerk of
the Bankruptcy Court as a true and correct copy, approving the
financing contemplated by the Note Documents which has not been
reversed, stayed, modified or amended and for which the time to
appeal or seek rehearing has expired, and for which no appeal or
motion for rehearing has been filed.
"FIRST CLOSING" has the meaning specified in Section 3.1.
"FIRST CLOSING DATE" has the meaning specified in Section
3.1.
"FIRST CLOSING NOTES" has the meaning specified in
Section 3.1.
"GAAP" means generally accepted accounting principles as
in effect in the United States of America and as are applied in
the financial statements of a Person on a consistent basis.
"GOVERNMENTAL AUTHORITY" means any nation or government,
any state, province or other political subdivision thereof, and
any governmental, executive, legislative, judicial, administrative
or regulatory agency, department, authority, instrumentality,
commission, board or similar body, whether xxxxxxx, xxxxx,
xxxxxxxxxx, xxxxxxxxxxx, local or foreign.
"HAZARDOUS MATERIALS" means (a) petroleum or petroleum
products, byproducts or breakdown products, radioactive materials,
asbestos-containing materials, polychlorinated biphenyls and radon
gas and (b) any other chemicals, materials or substances
designated, classified or regulated as hazardous or toxic or as a
pollutant or contaminant under any Environmental Law.
"HEDGE AGREEMENTS" means interest rate swap, cap or
collar agreements, interest rate future or option contracts,
commodity future or option contracts, currency swap agreements,
currency fixture or option contracts and other similar agreements.
"HOLDER" means, with respect to any Note, the Person in
whose name such Note is registered in the register maintained by
the Company pursuant to Section 11. 1.
"INDEBTEDNESS" means, with respect to any Person (without
duplication):
(a) all indebtedness of such Person for borrowed money;
(b) all Obligations of such Person evidenced by notes, bonds,
debentures or other similar instruments, or upon which interest payments
are customarily made;
(c) all Obligations of such Person created or arising under any
conditional sale or other title retention agreement with respect to
property or assets acquired by such Person, even though the rights and
remedies of the seller or the lender under such agreement in the event of
default are limited to repossession or sale of such property or assets;
(d) all Obligations of such Person as lessee under Capitalized
Leases;
(e) all Obligations, contingent or otherwise, of such Person under
acceptance, letter of credit or similar facilities;
(f) all Obligations of such Person to purchase, redeem, retire,
defease or otherwise make any payment in respect of any shares of capital
stock of (or other ownership or profit interest in) such Person or in any
other Person, or any warrants, rights or options to acquire such shares (or
such other ownership or profit interest), other than any such Obligations
for accrued and unpaid dividends thereon;
(g) all Obligations of such Person in respect of Hedge Agreements,
commodities agreements or take-or-pay or other similar arrangements;
(h) all Obligations of such Person under any synthetic lease, tax
retention operating lease, off-balance sheet loan or similar off-balance
sheet financing if the transaction giving rise to such Obligation is
considered indebtedness for borrowed money for tax purposes but is
classified as an operating lease in accordance with GAAP;
(i) all Obligations of such Person for production payments from
property operated by or on behalf of such Person and other similar
arrangements with respect to natural resources;
(j) all Indebtedness of other Persons referred to in clauses (a)
through (j) above or clause (l) below guaranteed directly or indirectly in
any manner by such Person, or in effect guaranteed directly or indirectly
by such Person through an agreement (i) to pay or purchase such
Indebtedness or to advance or supply funds for the payment or purchase of
such Indebtedness, (ii) to purchase, sell or lease (as lessee or lessor)
property or assets, or to purchase or sell services, primarily for the
purpose of enabling the debtor to make payment of such Indebtedness or to
assure the holder of such Indebtedness against loss, (iii) to supply funds
to or in any other manner to invest in the debtor (including any agreement
to pay for property, assets or services irrespective of whether such
property or assets are received or such services are rendered) or (iv)
otherwise to assure a creditor against loss; and
(k) all Indebtedness referred to in clauses (a) through (k) above
of another Person secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to be secured by) any Lien
on property or assets (including, without limitation, accounts and contract
rights) owned by such Person, even though such Person has not assumed or
become liable for the payment of such Indebtedness.
The Indebtedness of any Person shall include (i) all obligations of any
partnership or joint venture of the character described in clauses (a)
through (1) above in which such person is a general partner or a joint
venturer and (ii) all obligations of such Person of the character described
in clauses (a) through (1) above to the extent such Person remains legally
liable in respect thereof notwithstanding that any such obligation is
deemed to be extinguished under GAAP.
"INDEMNIFIED PARTY" has the meaning specified in Section
14.2.
"INSTITUTIONAL INVESTOR" means (a) any original purchaser
of a Note, (b) any holder of a Note holding more than 25 % of the
aggregate principal amount of the Notes outstanding on any date of
determination and (c) any bank, trust company, savings and loan
association or other financial institution, any pension plan, any
investment company, any insurance company, any broker or dealer,
or any other similar financial institution or entity, regardless
of legal form.
"INSUFFICIENCY" means, with respect to any Plan, the
amount, if any, of its unfunded benefit liabilities (as defined in
Section 4001(a)(18) of ERISA).
"INTERIM DIP ORDER" shall mean an interim order of the
Bankruptcy Court entered pursuant to Section 364(c) of the
Bankruptcy Code approving on a temporary basis financing up to the
aggregate amount specified on Annex I for the First Closing,
substantially in the form of Exhibit C hereto.
"INTERNAL REVENUE CODE" means the Internal Revenue Code
of 1986, as amended from time to time, and the regulations
promulgated and the rulings issued thereunder from time to time.
"INVESTMENT" means, with respect to any Person, any loan
or advance to such Person, any purchase or other acquisition of
any shares of capital stock (or other ownership or profit
interest), warrants, rights, options, obligations or other
securities of such Person, any capital contribution to such Person
or any other investment in such Person, including, without
limitation, any arrangement pursuant to which the investor incurs
Indebtedness of the types referred to in clause (k) or (1) of the
definition of "Indebtedness" in respect of such Person.
"LEGAL REQUIREMENTS" means all applicable international,
foreign, federal, state, and local laws, judgments, decrees,
orders, statutes, ordinances, rules, regulations, or Permits
including the Communications Act and all orders issued and
regulations promulgated under the Communications Act.
"LIEN" means, with respect to any Person, any mortgage,
lien, pledge, charge, hypothecation, assignment, deposit
arrangement, security interest, encumbrance priority, charge or
other preference of any kind (including, without limitation, any
agreement to give any of the foregoing), or any interest or title
of any vendor, lessor, lender or other secured party to or of such
Person under any conditional sale or other title retention
agreement or Capitalized Lease, upon or with respect to any
property or asset of such Person (including, in the case of shares
of capital stock, stockholder agreements, voting trust agreements
and other similar arrangements).
"MATERIAL" means material in relation to the business,
operations, condition (financial or otherwise), assets,
liabilities or properties of the Company and the Guarantors, taken
as a whole.
"MATERIAL ADVERSE EFFECT" means a material adverse effect
on (a) the business, operations, condition (financial or
otherwise), assets, liabilities or properties of the Company and
its Subsidiaries, taken as a whole, as measured from the Filing
Date, (b) the ability of the Company or its Subsidiaries to
perform its obligations under this Agreement or any other Note
Document to which it is or is to be a party or (c) other than
solely as a result of an action or inaction by you, the rights and
remedies afforded to you under this Agreement or any other Note
Document.
"MATERIAL CONTRACT" means, with respect to any Person,
each contract to which such Person is a party involving aggregate
consideration payable to or by such Person of $150,000 or more in
any year or otherwise material to the business, condition
(financial or otherwise), operations, performance, properties or
prospects of such Person.
"MATURITY DATE" means the earliest of (a) any maturity
date provided in the Interim DIP Order or, after the entry
thereof, the Final DIP Order, or (b) (i) June 30, 1999, (ii) the
date the Notes have become or are declared to be immediately due
and payable pursuant to Section 11, (iii) the sale or disposition
of stock or assets of the Company and its Subsidiaries (other than
of Connecticut Telephone), in accordance with Section 363 of the
Bankruptcy Code, either pursuant to (A) the terms of the CoreComm
Asset Purchase Agreement or (B) another sale (other than of
Connecticut Telephone) approved by the Purchasers in their sole
and absolute discretion, or (iv) the consummation of the
transactions contemplated by the Overbid Facility.
"MULTIEMPLOYER PLAN" means a multiemployer plan (as
defined in Section 4001(a)(3) of ERISA) to which the Company or
any ERISA Affiliate is making or accruing an obligation to make
contributions, or has within any of the preceding five plan years
made or accrued an obligation to make contributions.
"MULTIPLE EMPLOYER PLAN" means a single employer plan (as
defined in Section 4001(a)(15) of ERISA) that (a) is maintained
for employees of the Company or any ERISA Affiliate and at least
one Person other than the Company and the ERISA Affiliates or (b)
was so maintained and in respect of which the Company or any ERISA
Affiliate could have liability under Section 4064 or 4069 of ERISA
in the event such plan has been or were to be terminated.
"NOTE DOCUMENTS" means, collectively, this Agreement, the
Notes, the Collateral Documents, each other agreement evidencing
any Obligation of the Company secured by the Collateral Documents
and the Subsidiary Guaranty, in each case as amended, supplemented
or otherwise modified hereafter from time to time in accordance
with the terms hereof and thereof.
"NOTES" has the meaning defined in Section 1.
"NPL" means the National Priorities List under CERCLA.
"OBLIGATION" means, with respect to any Person, any
payment, performance or other obligation of such Person of any
kind, including, without limitation, any liability of such Person
on any claim, whether or not the right of any creditor to payment
in respect of such claim is reduced to judgment, liquidated,
unliquidated, fixed, contingent, matured, disputed, undisputed,
legal, equitable, secured or unsecured, and whether or not such
claim is discharged, stayed or otherwise affected by any
proceeding referred to in Section 11.1(g).
"OFFICER'S CERTIFICATE" means a certificate of a Senior
Financial Officer or of any other officer of the Company whose
responsibilities extend to the subject matter of such certificate.
"OVERBID FACILITY" has the meaning set forth in Section
7.1(b).
"PAYING AGENCY AGREEMENT" has the meaning set forth in
Section 7.1(b).
"PBGC" means the Pension Benefit Guaranty Corporation
referred to and defined in ERISA or any successor thereto.
"PERMITS" of a Person shall mean all rights, franchises,
permits, authorities, licenses, certificates of approval or
authorizations, including licenses and other authorizations
issuable by a Governmental Authority, which pursuant to applicable
Legal Requirements are necessary to permit such Person lawfully to
conduct and operate its business as currently conducted and to own
and use its assets.
"PERMITTED DISPOSITION" means the sale or disposition of
stock or assets of Connecticut Telephone, in accordance with
Section 363 of the Bankruptcy Code, pursuant to terms approved by
the Purchasers in their sole and absolute discretion; provided
that the consent of the Purchasers shall not be required if (a)
the aggregate amount of cash consideration to be received on the
initial closing date of the Permitted Disposition is equal to or
greater that 110% of the aggregate amount of the monetary
Obligations under the Note Documents anticipated to be owing to
the Purchasers on such closing date (which amount shall be
specified by each Purchaser to the Company) and (b) the Permitted
Disposition is on fair and reasonable terms and would be entered
into by a prudent Person in the position of the Company with a
Person which is not one of its Affiliates as determined in good
faith by the Board of Directors of the Company.
"PERMITTED HOLDERS" means J. Xxxxxx Xxxxxxx, Xxxxxx X.
Xxxxxxxx, the Xxxxx Manhattan Bank, CIBC Xxxxxxxxxxx Corp., Xxxx
Xxxxxxx Insurance Company, Northwood Capital Partners, LLC,
Northwood Ventures, HarbourVest Partners IV-Direct Fund L.P.,
HarbourVest Partners V-Direct Fund L.P., BT Xxxx Xxxxx,
Incorporated, Enterprises, the Purchaser and any of their
respective Subsidiaries (or a wholly-owned Subsidiary of the sole
stockholder of any of the foregoing Persons).
"PERMITTED LIENS" means such of the following as to which
no enforcement, collection, execution, levy or foreclosure
proceeding shall have been commenced:
(a) Liens for taxes, assessments and governmental charges
or levies to the extent not otherwise required to be paid under
Section 8.5(a);
(b) Liens imposed by law, such as materialmen's,
mechanics', carriers', workmen's, storage and repairmen's Liens
and other similar Liens arising in the ordinary course of business
and securing obligations (other than Indebtedness for borrowed
money) that (i) are not overdue for a period of more than 60 days
or (ii) are being contested in good faith and by proper
proceedings and as to which appropriate reserves are being
maintained in accordance with GAAP;
(c) pledges or deposits to secure obligations incurred in
the ordinary course of business under workers' compensation laws,
unemployment insurance or other similar legislation (other than in
respect of employee benefit plans subject to ERISA) or to secure
public or statutory obligations;
(d) Liens securing the performance of, or payment in
respect of, bids, tenders, government contracts (other than for
the repayment of borrowed money), surety and appeal bonds and
other obligations of a similar nature incurred in the ordinary
course of business;
(e) any interest or title of a lessor or sublessor and
any restriction or encumbrance to which the interest or title of
such lessor or sublessor may be subject that is incurred in the
ordinary course of business and, either individually or when
aggregated with all other Permitted Liens in effect on any date of
determination, could not be reasonably expected to have a Material
Adverse Effect;
(f) Liens in favor of customs and revenue authorities
arising as a matter of law or pursuant to a bond to secure payment
of customs duties in connection with the importation of goods;
(g) customary rights of setoff upon deposits of cash in
favor of banks or other depository institutions;
(h) easements, rights of way, zoning restrictions and
other encumbrances on title to real property that do not, either
individually or in the aggregate, render title to the property
encumbered thereby unmarketable or materially and adversely affect
either the use of such property for its present purposes or the
conduct of the business of the Company or any of its Subsidiaries
in the ordinary course;
(i) Liens in favor of the Company on assets of its
Subsidiaries other than Connecticut Telephone; and
(j) second priority Liens on the assets of the Company in
favor of MCI WorldCom on terms and conditions satisfactory to the
Purchaser.
"PERSON" means an individual, partnership, corporation
(including a business trust), limited liability company, joint
stock company, trust, unincorporated association, joint venture or
other entity, or a government or any political subdivision or
agency thereof.
"PLAN" means a Single Employer Plan or a Multiple
Employer Plan.
"PLAN OF REORGANIZATION" means a plan of reorganization
in the Chapter 11 case (or part thereof).
"PLEDGED SHARES" has the meaning specified in the
Security Agreement.
"POSTPETITION" means from and after the date the Company
commences its Chapter 11 case.
"PRESENT VALUE" has the meaning specified in Section 3 of
ERISA.
"PROPERTY" or "PROPERTIES" means, unless otherwise
expressly stated in this Agreement, real or personal property of
any kind, tangible or intangible, xxxxxx or inchoate.
"PURCHASER" means the Persons listed as purchasers of
Notes on Annex I, together with their successors and assigns.
"QPAM EXEMPTION" means Prohibited Transaction Class
Exemption 84-14 issued by the United States Department of Labor.
"REGULATION T" shall mean Regulation T of the Board of
Governors of the Federal Reserve System as from time to time in
effect (and any successor to all or a portion thereof).
"REGULATION U" shall mean Regulation U of the Board of
Governors of the Federal Reserve System as from time to time in
effect (and any successor to all or a portion thereof).
"REGULATION X" shall mean Regulation X of the Board of
Governors of the Federal Reserve System as from time to time in
effect (and any successor to all or a portion thereof).
"REORGANIZATION" shall mean the reorganization case in
respect of Company commenced by filing the voluntary petition
under Chapter 11 of the Bankruptcy Code with the Bankruptcy Court
on the Filing Date.
"REPORTABLE EVENT" means any of the events set forth in
Section 4043(c) of ERISA other than those events as to which the
post-event notice requirement is waived under subsections .13,
.14, .18, .19, or .20 of PBGC Reg. _2615.
"REQUIRED HOLDERS" means, at any time, (a) when CoreComm
Limited is a holder of one or more Notes, any holder of a Note,
and (b) when CoreComm Limited is not a holder of a Note or with
respect to any actions taken or not taken by the Purchasers with
respect to Sections 8.10 or 11.1(n), the holders of at least a
majority in interest of the aggregate principal amount of all of
the Notes outstanding at such time (excluding from any calculation
thereof any Notes then owned or held by the Company or any of its
Subsidiaries or other Affiliates).
"RESPONSIBLE OFFICER" means any Senior Financial Officer
and any other officer of the Company or any of its Subsidiaries
responsible for overseeing the administration of or reviewing
compliance with all or any portion of this Agreement or any other
Note Document.
"SECOND CLOSING" has the meaning specified in Section
3.2.
"SECOND CLOSING DATE" has the meaning specified in
Section 3.2.
"SECOND CLOSING NOTES" has the meaning specified in
Section 3.2.
"SECURED OBLIGATIONS" has the meaning specified in
Section 2 of the Security Agreement.
"SECURITIES ACT" means the Securities Act of 1933, as
amended from time to time.
"SECURITY AGREEMENT" has the meaning specified in Section
A4.3 (a).
"SENIOR FINANCIAL OFFICER" means the chief financial
officer, the principal accounting officer, the treasurer or the
comptroller of the Company.
"SEPARATE ACCOUNT" has the meaning specified in Section 3
of ERISA.
"SINGLE EMPLOYER PLAN" means a single employer plan (as
defined in Section 4001(a)(15) of ERISA) that (a) is maintained
for employees of the Company or any ERISA Affiliate and no Person
other than the Company and the ERISA Affiliates or (b) was so
maintained and in respect of which the Company or any ERISA
Affiliate could have liability under Section 4069 of ERISA in the
event such plan has been or were to be terminated.
"SUBSIDIARY" means, with respect to any Person, any
corporation, partnership, joint venture, limited liability
company, trust or estate of which (or in which) more than 50% of:
(a) the issued and outstanding shares of capital stock
having ordinary voting power to elect a majority of the board of
directors of such corporation (irrespective of whether at the time
shares of capital stock of any other class or classes of such
corporation shall or might have voting power upon the occurrence
of any contingency);
(b) the interest in the capital or profits of such
partnership, joint venture or limited liability company; or
(c) the beneficial interest in such trust or estate,
is at the time, directly or indirectly, owned or controlled by
such Person, by such Person and one or more of its other
Subsidiaries or by one or more of such Person's other
Subsidiaries.
"SUBSIDIARY GUARANTY" has the meaning specified in
Section A4.3(c).
"SUPERPRIORITY CLAIM" shall mean a claim against the
Company in the Chapter 11 case which is an administrative expense
claim having priority over all administrative expenses of the kind
specified in Section 503(b), 507(b) and 364(c) of the Bankruptcy
Code.
"TERMINATION EVENT" means:
(a) (i) the occurrence of a reportable event, within the
meaning of Section 4043(c) of ERISA, with respect to any Plan
unless the 30-day notice requirement with respect to such event
has been waived by the PBGC or (ii) the requirements of paragraph
(1) of Section 4043(b) of ERISA (without regard to paragraph (2)
of such Section) are met with a contributing sponsor, as defined
in Section 4001(a)(13) of ERISA, of a Plan, and an event described
in paragraph (9), (IO), (II), (I 2) or (1 3) of Section 4043(c) of
ERISA would reasonably be expected to occur with respect to such
Plan within the following 30 days;
(b) the application for a minimum funding waiver with
respect to a Plan;
(c) the provision by the administrator of any Plan of a
notice of intent to terminate such Plan pursuant to Section
4041(a)(2) of ERISA (including any such notice with respect to a
plan amendment referred to in Section 4041(e) of ERISA);
(d) the cessation of operations at a facility of the
Company or any ERISA Affiliate in the circumstances described in
Section 4062(e) of ERISA;
(e) the withdrawal by the Company or any ERISA Affiliate
from a Multiple Employer Plan during a plan year for which it was
a substantial employer, as defined in Section 4001(a)(2) of ERISA;
(f) the conditions for the imposition of a lien under
Section 302(f) of ERISA shall have been met with respect to any
Plan;
(g) the adoption of an amendment to a Plan requiring the
provision of security to such Plan pursuant to Section 307 of
ERISA; or
(h) the institution by the PBGC of proceedings to
terminate a Plan pursuant to Section 4042 of ERISA, or the
occurrence of any event or condition described in Section 4042 of
ERISA, that constitutes grounds for the termination of, or the
appointment of a trustee to administer, a Plan.
"TRANSACTION" means the entering into and performance by
the Company and its Subsidiaries of the Note Documents and the
transactions contemplated thereby, including the Interim DIP Order
and the Final DIP Order but excluding the CoreComm Asset Purchase
Agreement and the transactions contemplated thereby.
"VOTING STOCK" means shares of capital stock issued by a
corporation, or equivalent interests in any other Person, the
holders of which are ordinarily, in the absence of contingencies,
entitled to vote for the election of directors (or persons
performing similar functions) of such Person, even if the right so
to vote has been suspended by the happening of such a contingency.
"WITHDRAWAL LIABILITY" has the meaning specified in Part
I of Subtitle E of Title IV of ERISA.
"WORLDCOM" means MCI WorldCom.
"YOU" and "YOUR" refers to each Purchaser.
ANNEX I
INFORMATION AS TO PURCHASERS
----------------------------
Purchaser Name First Closing Second Closing Delayed Closing
-------------- ------------- -------------- ---------------
Xxxxxxx Xxxxx Global
Allocation Fund, Inc. $1,000,000 $2,000,000 Zero
Class A Notes Class A Notes
$16,330,070
Class B Notes
CoreComm Limited $1,000,000 $2,000,000 $500,000
Class A Notes Class A Notes Delayed Closing
Notes
