PURCHASE AGREEMENT dated as of December 19, 2003, among LEUCADIA
NATIONAL CORPORATION or one of its affiliates (the "Investor"); JPMORGAN CHASE
BANK, in its capacity as Administrative Agent (the "Administrative Agent") and
in its capacity as Collateral Agent (the "Collateral Agent"); and JPMORGAN CHASE
BANK; AMERICA ONLINE, INC.; XXXXXXX XXXXX CREDIT PARTNERS L.P.; and XXXXXX
XXXXXXX SENIOR FUNDING, INC., as lenders (the "Lenders") under the Credit
Agreement dated as of September 28, 2000, as amended and restated as of April
11, 2001, and amended by the First Amendment dated as of October 31, 2001, the
Second Amendment dated as of December 14, 2001, the Third Amendment dated as of
March 29, 2002 and the Fourth Amendment dated as of March 31, 2003 (as further
amended, restated or otherwise supplemented from time to time, the "Credit
Agreement"), among CCL HISTORICAL, INC., formerly named CoreComm Limited (the
"Parent"); ATX COMMUNICATIONS, INC., formerly named CoreComm Holdco, Inc.
("CCI"); CORECOMM COMMUNICATIONS, INC. (the "Borrower" and, together with the
Parent and CCI, the "Loan Parties"), the Lenders and the Administrative Agent.
A. The Investor desires to purchase from the Lenders all of the
principal amount then outstanding under the Credit Agreement, together with any
and all accrued interest, costs, expenses, penalties, fees thereon or related
thereto and any and all obligations arising thereunder, including, but not
limited to, any and all liquidated, liquidating or unliquidated claims in
connection therewith as of the date above (the "Senior Indebtedness") for
$25,000,000.00 (the "Purchase Price").
B. The undersigned Lenders are willing, on the terms and subject to
the conditions set forth herein, to sell the Senior Indebtedness to the
Investor.
C. Such sale of the Senior Indebtedness requires the consent of the
Borrower pursuant to Section 9.04(b) of the Credit Agreement.
D. JPMorgan Chase Bank desires, upon such sale of the Senior
Indebtedness, to resign as Administrative Agent.
In consideration of the premises and the agreements, provisions and
covenants herein contained and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
hereby agree, on the terms and subject to the conditions set forth herein, as
follows:
SECTION 1. Purchase of Senior Indebtedness. Notwithstanding any other
agreement between the Investor and the Borrower, each Lender hereby sells,
assigns, transfers and conveys all of its ownership and other interests in the
Senior Indebtedness to the Investor, and the Investor hereby purchases and
accepts all of the Senior Indebtedness from the Lenders by making, on or before
the date hereof, a wire transfer of immediately available funds in the amount of
the Purchase Price to JPMorgan Chase Bank, acting as agent for the undersigned
Lenders, into such account as JPMorgan Chase Bank may specify by prior written
notice.
SECTION 2. Mutual Release. Upon consummation of the sale of the Senior
Indebtedness to the Investor as contemplated herein, each Lender shall be
released in full from its obligations under the Credit Agreement and none of the
Lenders will have any rights to or with respect to any of the Senior
Indebtedness and/or any of the obligations, rights or privileges related thereto
or arising thereunder and/or under the Credit Agreement. Further, upon
consummation of such sale as contemplated herein, (a) each Lender shall be
deemed to have automatically, irrevocably and fully released the Loan Parties
and any direct or indirect parent entities, subsidiaries, predecessors,
successors, affiliates, officers or directors of any Loan Party (collectively,
the "Borrower Releasees") and (b) the Borrower Releasees shall be deemed to have
automatically, irrevocably and fully released each Lender, in each case, from
any and all liability arising under or in any way relating to the Senior
Indebtedness and/or the Credit Agreement, except, in each case, to the extent
resulting from the bad faith, gross negligence or willful misconduct of any such
Person. For the purposes of this Section 2 only, the Borrower Releasees shall be
deemed third party beneficiaries with direct rights to enforce this Section 2
against any or all of the Lenders.
Notwithstanding anything to the contrary contained in this Section 2
or elsewhere in this Agreement, in the event that any Borrower Releasee, or any
trustee or other representative of the estate or creditors of any Borrower
Releasee, commences an adversary proceeding or other proceeding or action
against any Lender in respect of any liability released (the "Released
Liability") under this Section 2 (including, without limitation, any action to
recover or avoid any payment or other transfer to or for the benefit of such
Lender under Section 544, 547, 548, 549, 550 or 553 of the Bankruptcy Code) then
(a) the release given by such Lender in favor of such Borrower Releasee (but not
other Borrower Releasees) pursuant to this Section 2 shall be deemed immediately
null and void; provided that the amount of any actual recovery by such Lender
from such Borrower Releasee shall be limited to the amount of any actual
recovery against such Lender in respect of the Released Liability (for the
avoidance of doubt, this proviso limits the amount of the actual recovery that
may be realized by such Lender but does not limit the amount of the claim that
may be asserted by such Lender), and (b) any claim arising in such Lender's
favor as a result of any recovery against such Lender in respect of the Released
Liability shall be excluded from the Senior Indebtedness purchased by the
Investor.
SECTION 3. Representations and Warranties of the Investor. The
Investor represents and warrants to the Administrative Agent and the Lenders as
to itself and not to any other party hereto, that:
(a) it has full power and legal right to execute and deliver this
Agreement and to perform its obligations hereunder;
(b)this Agreement has been duly executed and delivered by it and
constitutes a legal, valid and binding obligation of such Investor, enforceable
against it in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights generally
and subject to general principles of equity, regardless of whether considered in
a proceeding in equity or at law; and
(c) it has, independently and without reliance upon the Administrative
Agent, the Collateral Agent or any Lender and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement and purchase the Senior Indebtedness.
SECTION 4. Representations and Warranties of the Lenders. Each Lender
represents and warrants to the Investor as to itself and not to any other party
hereto, that:
(a) it has full power and legal right to execute and deliver this
Agreement and to perform its obligations hereunder;
(b) this Agreement has been duly executed and delivered by it and
constitutes a legal, valid and binding obligation of such Lender, enforceable
against it in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights generally and subject to general principles of equity,
regardless of whether considered in a proceeding in equity or at law;
(c) it has the right to transfer good, valid and marketable title in
and to that portion of the Senior Indebtedness listed after its name on Annex A
hereto, free and clear of any mortgages, pledges, charges, liens, security
interests or other encumbrances; and
(d) as of the date of this Agreement, the Senior Indebtedness totaled
no less than $156,100,000, and neither it nor, to the best of its knowledge, its
counsel has received any written notice, or to the best of its knowledge any
other actual notice, asserting that the Senior Indebtedness, or any portion
thereof, and/or the related security interests created in favor of the
Collateral Agent, are void, voidable, unenforceable, or subject to any
Impairment. For purposes of this representation, the term "Impairment" means any
claim, counterclaim, setoff, defense, action, demand, litigation (including
administrative proceedings or derivative actions), encumbrance, right,
(including expungement, avoidance, reduction, contractual or equitable
subordination, or otherwise) or defect, other than those created pursuant to the
Loan Documents (as defined in the Credit Agreement), the effect of which does,
or would, materially and adversely affect the Senior Indebtedness. For avoidance
of doubt, the parties agree that the proceedings commenced and other actions
taken by Easton Telecom Services, L.L.C. to collect the debt allegedly owed to
it by certain of the Loan Parties or their affiliates does not constitute an
Impairment.
Other than as specifically set forth in this Section 4, the Investor
acknowledges and agrees that its purchase of the Senior Indebtedness is made
without any representation or warranty from the Lenders and without recourse to
the Lenders.
SECTION 5. Representations and Warranties of the Collateral Agent. The
Collateral Agent represents and warrants to the Investor as to itself and not to
any other party hereto, that, as of the date of this Agreement, neither the
Collateral Agent nor, to the best of its knowledge, its counsel has received any
written notice, or to the best of its knowledge any other actual notice,
asserting that the security interests created in favor of the Collateral Agent
in connection with the Credit Agreement are void, voidable, unenforceable, or
subject to any Impairment. For purposes of this representation, the term
"Impairment" means any claim, counterclaim, setoff, defense, action, demand,
litigation (including administrative proceedings or derivative actions),
encumbrance, right, (including expungement, avoidance, reduction, contractual or
equitable subordination, or otherwise) or defect, other than those created
pursuant to the Loan Documents (as defined in the Credit Agreement), the effect
of which does, or would, materially and adversely affect the Senior
Indebtedness. For avoidance of doubt, the parties agree that the proceedings
commenced and other actions taken by Easton Telecom Services, L.L.C. to collect
the debt allegedly owed to it by certain of the Loan Parties or their affiliates
does not constitute an Impairment.
Other than as specifically set forth in this Section 5, the Investor
acknowledges and agrees that its purchase of the Senior Indebtedness is made
without any representation or warranty from the Collateral Agent and without
recourse to the Collateral Agent. Furthermore, notwithstanding the
representations and warranties set forth in this Section 5, the Collateral Agent
shall in no event have any liability to the Investor, the Borrower, any other
Borrower Releasee or any Lender in the absence of its gross negligence or
willful misconduct.
SECTION 6. Resignation of Administrative Agent. Upon consummation of
the sale of the Senior Indebtedness to the Investor as contemplated herein,
JPMorgan Chase Bank hereby resigns as Administrative Agent and the Investor is
appointed as Administrative Agent. The Lenders, the Investor and the Borrower
hereby consent to the appointment of the Investor as Administrative Agent, and
the Investor hereby accepts its appointment as Administrative Agent, upon the
effectiveness of JPMorgan Chase Bank's resignation as Administrative Agent.
SECTION 7. Collateral Agent. Notwithstanding the resignation of
JPMorgan Chase Bank as Administrative Agent pursuant to Section 6 hereof,
JPMorgan Chase Bank shall, upon consummation of the sale of the Senior
Indebtedness to the Investor as contemplated herein, remain as Collateral Agent;
provided that (a) except as specifically set forth in this Section, the rights
and obligations of JPMorgan Chase Bank as Collateral Agent in connection with
the Credit Agreement shall remain operative and in full force and effect,
including, but not limited to, all rights of expense reimbursement, exculpation
and indemnification, all rights set forth in Article VIII of the Credit
Agreement and all rights and obligations set forth in the Security Documents (as
defined in the Credit Agreement), (b) the Investor agrees that it shall not, nor
agree to, waive, amend or modify the Credit Agreement in a manner that affects
the rights or duties of the Collateral Agent without the prior written consent
of the Collateral Agent and (c) the Investor agrees to reimburse the Collateral
Agent for all fees and expenses owing to the
Collateral Agent pursuant to the Credit Agreement or any Security Document (as
defined in the Credit Agreement) that are not paid by the Borrower when due.
SECTION 8. Notices. All notices and other communications provided for
herein shall be in writing and shall be delivered by hand or overnight courier
service, mailed by certified or registered mail or sent by telecopy, as follows:
(a) if to the Investor:
Leucadia National Corporation
Attention: Xxx Xxxxxxx
000 Xxxx Xxxxxx Xxxxx
Xxx Xxxx, XX 00000
Telecopy No. 212/598-3241
With a copy to:
Xxxxxxx, Xxxxxxxx & Xxxxx P.C.
Attention: Xxxxxxx Xxxxxx & Xxxx Xxxxxxxx
1901 Avenue of the Stars, 00xx xxxxx
Xxx Xxxxxxx, XX 00000
Telecopy No. 310/ 228-5788
(b) if to the Administrative Agent or Collateral Agent, as provided in
the Credit Agreement.
(c) Any party hereto may change its address or telecopy number of
notices and other communications hereunder by notice to the other parties
hereto. All notices and other communications given to any party hereto in
accordance with the provisions of this Agreement shall be deemed to have been
given on the date of receipt.
SECTION 9. Waivers; Amendments.
(a) No failure or delay by the Administrative Agent, Collateral Agent
or any Lender exercising any right or power hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right or power, or
any abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. No waiver of any provision of this Agreement or consent to any
departure by the Borrower or any Investor therefrom shall in any event be
effective unless the same shall be permitted by paragraph (b) of this Section,
and then such waiver or consent shall be effective only in the specific instance
and for the purpose for which given.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to an agreement in writing entered into by
the Investor and JPMorgan Chase Bank, acting with the consent of the Required
Lenders (as determined immediately prior to the sale of the Senior Indebtedness
to the Investors as contemplated herein), and to which the Borrower has given
its consent.
SECTION 10. Successors and Assigns. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby (including any Person that
hereafter becomes a Lender under the Credit Agreement and any successor
Administrative Agent or Collateral Agent under the Credit Agreement).
SECTION 11. Counterparts; Integration. This Agreement may be executed
in counterparts (and by different parties hereto on different counterparts),
each of which shall constitute an original, but all of which when taken together
shall constitute a single contract. This Agreement constitutes the entire
contract among the parties relating to the subject matter hereof and supersedes
any and all previous agreements and understandings, oral or written, relating to
the subject matter hereof. This Agreement shall become effective when it shall
have been executed by the Administrative Agent and when the Administrative Agent
shall have received counterparts hereof which, when taken together, bear the
signatures of each of the other parties hereto. Delivery of an executed
counterpart of a signature page of this Agreement by telecopy shall be effective
as delivery of a manually executed counterpart of this Agreement.
SECTION 12. Severability. Any provision of this Agreement held to be
invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity or a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 13. No Construction Against Drafter. This Agreement has been
fully negotiated by the parties hereto and the parties hereto intend that the
rule of contract construction that ambiguities shall be construed against the
drafter shall not be applied in the interpretation of this agreement.
SECTION 14. Governing Law; Jurisdiction; Consent to Service of
Process.
(a) This Agreement shall be governed by, and construed in accordance
with, the laws 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 the
Supreme Court of the State of New York sitting in New York County and of the
United States District Court of the Southern District of New York, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement, 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 such New York State or, to the extent permitted by 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 law.
Nothing in this Agreement or any other document shall affect any right that the
Administrative Agent or any Lender may otherwise have to bring any action or
proceeding relating to this Agreement against any party hereto or its properties
in the courts of any jurisdiction.
(c) Each of the parties hereto hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection which 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 in any court
referred to in paragraph (b) of this Section. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such
court.
(d) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 8. Nothing in this
Agreement or any document will affect the right of any party to this Agreement
to serve process in any other manner permitted by law.
SECTION 15. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY
(WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A)
CERTIFIES THAT NO REPRESENTATIVE, ADMINISTRATIVE AGENT OR ATTORNEY OF ANY OTHER
PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT,
IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.
SECTION 16. Defined Terms. Capitalized terms that are used but not
defined herein shall have the meanings given to them in the Credit Agreement as
in effect on the date hereof.
