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Exhibit 10.57
NOTE PURCHASE AGREEMENT
THIS NOTE PURCHASE AGREEMENT (this "Agreement") is made as of September
29, 2000, by and among CORECOMM LIMITED, a Delaware corporation formerly known
as ATX Telecommunications Services, Inc. (the "Company"), and XXXXXX XXXXXXX,
XXXXX XXXXXXXXX, XXXXXXX XXXX and THE XXXXXXXX XXXX TRUST (each a "Purchaser"
and together, the "Purchasers").
RECITALS
A. Pursuant to the terms of a Recapitalization Agreement and Plan of
Merger (the "Merger Agreement"), dated as of March 9, 2000, as amended, among
the Company, Xxxxxx Xxxxxxx, Xxxxx Xxxxxxxxx, Xxxxxxx Xxxx and The Xxxxxxxx Xxxx
Trust, and CoreComm Limited, a Bermuda corporation ("CoreComm"), the Company and
CoreComm, through its wholly-owned subsidiary, CoreComm Merger Sub, have each
agreed to merge (the "Merger").
B. The Chase Manhattan Bank has agreed to provide certain credit
facilities to a subsidiary of the Company consisting of term loans and revolving
lines of credit in the aggregate principal amount of up to $150,000,000 to fund
such merger and to otherwise provide working capital.
C. To satisfy a portion of the consideration payable in such merger,
the Purchaser desires to accept from the Company, and the Company desires to
issue to the Purchasers, subject to the terms and conditions set forth herein,
senior unsecured notes of the Company in the aggregate original principal amount
of $108,668,636.
AGREEMENTS
In consideration of the recitals and the mutual covenants herein
contained and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE I
1.1 Definitions. In addition to the capitalized terms defined
elsewhere in this Agreement, the following capitalized terms shall
have the following respective meanings when used in this
Agreement:
"AFFILIATE" as applied to any specified Person means any other Person
(and all natural Persons related by blood, adoption or marriage to such other
Person) directly or indirectly controlling, controlled by, or under direct or
indirect common control with, such specified Person.
"ASSETS" means all of the tangible and intangible assets of the Company
and its Subsidiaries.
"BOARD OF DIRECTORS" means the board of directors of the Company.
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"BUSINESS" means the competitive local exchange carrier, interexchange
carrier, internet service provider and high speed data businesses to be
conducted by the Company upon consummation of the Merger.
"CAPITAL EXPENDITURES" means for any period, the aggregate of all
expenditures of the Company and its Subsidiaries on a consolidated basis during
such period that in conformity with GAAP are required to be included in or
reflected by the property, plant or equipment or similar fixed asset account
reflected in the Company's consolidated balance sheet for such period.
"CAPITALIZED LEASE" means any lease of property (whether real, personal
or mixed) which, in conformity with GAAP, is accounted for as a capitalized
lease or a Capital Expenditure on the Company's consolidated balance sheet.
"CHANGE OF CONTROL EVENT" means (a) the acquisition of ownership,
directly or indirectly, beneficially or of record, by any Person, (b) the
acquisition of ownership, directly or indirectly, beneficially or of record, by
any Person or group (within the meaning of the Securities Exchange Act of 1934
and the rules of the Securities and Exchange Commission thereunder as in effect
on the date hereof) of equity interests representing more than 35% of the
aggregate ordinary voting power represented by the issued and outstanding equity
interests in the Company or (c) occupation of a majority of the seats (other
than vacant seats) on the board of directors of the Company by Persons who were
neither (i) nominated by the board of directors of the Company immediately
following the closing of the Merger nor (ii) appointed by directors so
nominated.
"CLOSING" means the closing of the sale and purchase of the Senior
Unsecured Notes.
"CLOSING DATE" has the meaning ascribed to it in Section 3.1.
"CODE" means the Internal Revenue Code of 1986, as amended, and all
rules and regulations promulgated thereunder.
"COMMISSION" means the Securities and Exchange Commission.
"DEFAULT" means any event or condition, the occurrence of which would,
with the lapse of time or the giving of notice, or both, constitute an Event of
Default.
"ENVIRONMENTAL AND SAFETY REQUIREMENTS" means all federal, state, local
and foreign statutes, regulations, ordinances and similar provisions having the
force or effect of law, all judicial and administrative orders and
determinations, all contractual obligations and all common law, in each case
concerning public health and safety, worker health and safety and pollution or
protection of the environment (including, without limitation, all those relating
to the presence, use, production, generation, handling, transportation,
treatment, storage, disposal, distribution, labeling, testing, processing,
discharge, Release, threatened Release, control or cleanup of any Hazardous
Materials).
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"EVENT OF DEFAULT" has the meaning ascribed to it in Section 9.1.
"FACILITIES" means any and all real property (including, without
limitation, all buildings, fixtures or other improvements located thereon)
owned, leased or operated by the Company or any of its Subsidiaries. "Facility"
means any one of the Facilities.
"FISCAL YEAR" means any 12-month period ending December 31.
"GAAP" means generally accepted accounting principles, consistently
applied.
"HAZARDOUS MATERIAL" means (a) any chemical, material or substance
defined as or included in the definition of "hazardous substances," "hazardous
wastes," "hazardous materials," "extremely hazardous waste," "restricted
hazardous waste," "toxic pollutants," "contaminants," "pollutants," "toxic
substances" or words of similar import under any federal, state or local
statutes and ordinances and rules and regulations concerning the protection of
the environment, (b) any oil, petroleum or petroleum derived substance, (c) any
flammable substances or explosives, (d) any radioactive materials, (e) any other
materials or pollutants that (i) pose a hazard to any of the Facilities or to
persons on or about any of the Facilities or (ii) cause any of the Facilities to
be in violation of any such environmental law, (f) asbestos in any form which is
or could become friable, (g) radon gas, (h) urea formaldehyde foam insulation,
(i) transformers or other electrical equipment which contain any oil or
dielectric fluid containing polychlorinated biphenyls, and (j) any other
chemical, material or substance, exposure to which is prohibited, limited or
regulated by any governmental authority.
"INDEBTEDNESS" of any Person means any indebtedness or obligation of
such Person for money borrowed by such Person, whether evidenced by notes,
bonds, debentures or otherwise, or any guarantee of any other Person's
indebtedness or obligation for money borrowed.
"LIEN" means any mortgage, deed of trust, lien, security interest,
pledge, lease, conditional sale contract, claim, charge or other similar
encumbrance.
"MATERIAL ADVERSE EFFECT" means, with respect to any event, act,
condition or occurrence of whatever nature, a material adverse change in, or a
material adverse effect upon, any of the business, property, assets, operations
or financial condition of the Company and its Subsidiaries, taken as a whole.
"OPERATIVE DOCUMENTS" means this Agreement and the Senior Unsecured
Notes.
"PERMITTED LIENS" has the meaning ascribed to it in Section 8.3.
"PERSON" means an individual, a partnership, a limited liability
company, a corporation, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization or a governmental entity or any
department, agency or political subdivision thereof.
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"RECAPITALIZATION" means the recapitalization transaction contemplated
by the Merger Agreement.
"RELEASE" means any release, spill, emission, leaking, pumping,
pouring, injection, escaping, deposit, disposal, discharge, dispersal, leaching
or migration into the indoor or outdoor environment (including, without
limitation, the abandonment or disposal of any barrels, containers or other
closed receptacles containing any Hazardous Materials) or into or out of any of
the Facilities, including the movement of any Hazardous Material through the
air, soil, surface water, groundwater or property.
"SENIOR EVENT OF DEFAULT" means an Event of Default (as such term is
defined in the Senior Loan Agreement) under the Senior Loan Agreement or any
note or instrument issued pursuant thereto, or any replacement of the Senior
Loan Agreement or in exchange therefor.
"SENIOR LENDER" means any Lender, as such term is defined in the Senior
Loan Agreement.
"SENIOR LOAN AGREEMENT" means the Credit Agreement of even date
herewith among CoreComm Communications, Inc., the Company, CoreComm Holdco,
Inc., the Senior Lenders and The Chase Manhattan Bank, as agent, as such
agreement may be amended, supplemented or otherwise modified from time to time.
"SENIOR LOAN DOCUMENTS" means the Senior Loan Agreement and each
agreement, document, letter of credit and instrument executed in connection with
the Senior Loan Agreement, as such agreements, documents, letters of credit and
instruments may be amended, supplemented or otherwise modified from time to
time.
"SENIOR UNSECURED CREDIT FACILITY" means the senior unsecured credit
facility described in a certain Commitment Letter dated September 19, 2000 among
the Company, The Chase Manhattan Bank and Chase Securities Inc.
"SENIOR UNSECURED NOTES" means, collectively, the senior unsecured
notes of the Company substantially in the form of Exhibit A to this Agreement
issued by the Company to the Purchasers as contemplated by this Agreement, as
such notes may be amended and in effect from time to time, and any note or notes
issued in exchange for such note.
"SUBSIDIARIES" means any corporation, association, limited liability
company, partnership or other business entity of which securities or other
ownership interests representing fifty percent (50%) or more of the ordinary
voting power or profits interest are, at the time as of which any determination
is being made, owned or controlled by the Company or one or more Subsidiaries of
the Company.
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1.2 Accounting Principles. Where the character or amount of any asset
or liability or item of income or expense is required to be
determined, or any accounting computation is required to be made,
for the purpose of this Agreement, such determination or
calculation shall be made, to the extent applicable and except as
otherwise specified in this Agreement, on a consolidated basis so
as to include the Company and each Subsidiary in each such
calculation and in accordance with GAAP; provided, however, that
if any change in generally accepted accounting principles from
those applied in the preparation of the financial statements
referred to in Section 6.2 hereof is occasioned by the
promulgation of rules, regulations, pronouncements and opinions by
or required by the Financial Accounting Standards Board or the
American Institute of Certified Public Accountants (or successors
thereto or agencies with similar functions), the initial
announcement of which change is made after the Closing Date,
results in a change in the method of calculation of financial
covenants, standards or terms found in this Agreement, the parties
hereto agree to enter into good faith negotiations in order to
amend such provisions so as to reflect such changes with the
desired result that the criteria for evaluating the Company's
financial condition shall be the same after such changes as if
such changes had not been made; and provided, further, that until
such time as the parties hereto agree upon such amendments, such
financial covenants, standards and terms shall be construed and
calculated as though such change had not taken place. When used
herein, the term "financial statement" shall include the notes and
schedules thereto, if any.
ARTICLE II
AUTHORIZATION AND SALE OF SENIOR UNSECURED NOTES
2.1 Authorization. The Company has authorized the issuance to the
Purchasers of the Senior Unsecured Notes.
2.2 Delivery of Senior Unsecured Notes to the Purchaser. At the
Closing, the Company will issue to the Purchasers, and the
Purchasers agree to accept from the Company, the Senior Unsecured
Notes.
ARTICLE III
CLOSING, DELIVERY
3.1 Closing. The issuance of the Senior Unsecured Notes shall occur at
a closing (the "Closing") that shall occur simultaneously with,
and in the same location as, the closing of the Merger and the
Recapitalization. The day on which the Closing occurs is referred
to as the "Closing Date."
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3.2 Delivery. At the Closing, the Company will deliver to each
Purchaser a duly executed Senior Unsecured Note payable to such
Purchaser in the principal amount contemplated by the Merger
Agreement, in partial consideration of the transactions
contemplated by the Merger Agreement.
ARTICLE IV
CONDITIONS TO CLOSING BY THE PURCHASER
The obligations of the Company to issue and of the Purchasers to accept
the Senior Unsecured Notes at the Closing is subject to: (i) the satisfaction or
waiver at or prior to the Closing of all conditions contained in the Merger
Agreement to the consummation of the Merger and the Recapitalization; (ii) the
Senior Lender and the Company having executed and delivered the Senior Loan
Agreement and, subject to the terms and conditions contained therein, the Senior
Lender shall have made available to the Company a revolving loan facility in the
aggregate maximum principal amount of $50,000,000 (the "Revolving Loan") and a
term loan in the maximum principal amount of $100,000,000 (the "Term Loan"), and
(iii) no Senior Event of Default or event which with the lapse of time or notice
or both would constitute a Senior Event of Default shall have occurred, and no
term or condition of the Senior Loan Agreement shall have been modified, amended
or waived in any material respect without the consent of the Purchaser. .
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to the Purchasers as set
forth below, and acknowledges that the Purchaser is entering into this Agreement
in reliance on the truth and accuracy of such representations and warranties.
For purposes of this Agreement, except as otherwise specifically provided in
this Agreement, all representations and warranties in this Article V shall be
deemed to be made as if the transactions contemplated by the Merger Agreement
have already been consummated. The foregoing notwithstanding, none of the
representations and warranties of the Company set forth herein shall be deemed
to have been breached or otherwise inaccurate or incomplete if, and to the
extent that, such breach or inaccuracy in, or omission from any such
representation or warranty relates to or originated from facts or circumstances
relating to or existing at the Company as it existed prior to the Closing.
5.1 Organization and Standing. The Company is a corporation duly
organized, validly existing and in good standing under the laws of
the State of Delaware. The Company does not own or lease property
or engage in any activity in any other jurisdiction in which it is
not so qualified that would require its qualification to do
business as a foreign corporation in such jurisdiction, except
where the failure to so qualify would not reasonably be expected
to have a Material Adverse Effect.
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5.2 Power. The Company has the requisite legal and corporate power to
own, lease and operate all the properties owned or leased by it
and to conduct the Business as presently being conducted by it.
The Company has all requisite legal and corporate power to enter
into this Agreement and to issue the Senior Unsecured Notes
pursuant hereto and to carry out and perform its obligations under
the terms of this Agreement and the Senior Unsecured Notes.
5.3 Subsidiaries and Investments. Except as set forth on Schedule 5.3,
the Company does not have any Subsidiaries and does not own any
interest in or control, directly or indirectly, any company,
corporation, partnership, trust, association or other form of
business entity.
5.4 Authorization and Binding Effect. All corporate action on the part
of the Company, and its Board of Directors necessary for the
authorization, execution, delivery and performance by the Company
of this Agreement and the other Operative Documents to which it is
a party and the consummation of the transactions contemplated
hereby and thereby, and for the authorization, issuance and
delivery of the Senior Unsecured Notes has been taken. This
Agreement is and, upon their execution and delivery by the
Company, the Senior Unsecured Notes and each of the other
Operative Documents to which the Company is a party will be, a
legal, valid and binding obligation of the Company, enforceable
against the Company in accordance with their respective terms,
except as limited by bankruptcy, insolvency or other laws
affecting creditors' rights generally or by the availability of
equitable remedies.
5.5 No Violation. Assuming that the representations and warranties of
the Purchasers contained in Section 10.6 hereof are true and
correct in all material respects, neither the execution and
delivery by the Company of this Agreement or any of the Senior
Unsecured Notes, the consummation by the Company of the
transactions provided for herein and therein or contemplated
hereby and thereby, nor the fulfillment by the Company of the
terms hereof or thereof, will (i) conflict with or result in a
breach of any provision of the Certificate of Incorporation or the
By-Laws of the Company, (ii) result in a default, give rise to any
right of termination, cancellation, acceleration or imposition of
any Lien upon any assets of the Company, or require any consent or
approval under any of the terms, conditions or provisions of any
note, bond, mortgage, indenture, loan, license, agreement, lease,
instrument or obligation to which the Company is a party or by
which the Company or any of its assets may be bound, or (iii)
violate any law, judgment, order, writ, injunction, decree,
statute, rule or regulation of any court, administrative agency,
bureau, board, commission, department or other governmental entity
applicable to or any of its assets (including any usury laws
applicable to the Senior Unsecured Notes).
5.6 Consents. Except as would not have a Material Adverse Effect, all
consents, approvals, qualifications, orders or authorizations of,
or filings with, any
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governmental authority, and all consents under any contracts,
agreements or instruments by which the Company is bound or to
which it is subject, and required in connection with its valid
execution, delivery or performance of this Agreement and the
other Operative Documents to which it is a party, and the
Company's issuance of the Senior Unsecured Notes and the
consummation of any other transaction contemplated on the part
of the Company hereby or thereby, have been obtained or made.
5.7 Assets. The Company has good and marketable title to all of the
Assets it purports to own, free and clear of all Liens, other than
Permitted Liens. Such Assets constitute all the assets necessary
to conduct the Business as conducted by CoreComm and the Company
immediately prior to the Closing and as proposed to be conducted
by the Company after the Closing.
5.8 Solvency. After giving effect to the transactions contemplated by
this Agreement, and the payment of all fees and expenses related
to such transactions, as of the Closing, (i) the Company is not
insolvent in that the fair saleable value of its assets is greater
than the amount required to pay its total liabilities (including a
reasonable estimate of the amount of all contingent liabilities),
(ii) the Company has not incurred debts and other obligations in
excess of its ability to pay such debts and obligations as they
mature, and the cash flow of the Company and anticipated capital,
after taking into account the anticipated uses of the cash, is
sufficient to pay such debts and obligations when such amounts are
required to be paid, and (iii) the capital of the Company is
sufficient for the business and transactions in which it is
engaged.
5.9 Disclosure. The Company (which for purposes of this Section 5.10
only shall mean CoreComm Limited, a Bermuda corporation, and
Xxxxxxx.xxx, Inc., a Delaware corporation) has timely filed all
forms, reports and documents filed or required to be filed by the
Company with the Securities and Exchange Commission (the "SEC")
since January 1, 1999 (collectively, the "SEC Reports"). The SEC
Reports (i) at the time filed, complied in all material respects
with the applicable requirements of the Securities Act of 1933, as
amended (the "Securities Act") and the Securities Exchange Act of
1934 (the "Exchange Act"), as the case may be, and (ii) did not at
the time they were filed (or if amended or superseded by a filing
prior to the date of this Agreement, then on the date of such
filing) contain any untrue statement of a material fact or omit to
state a material fact required to be stated in such SEC Reports or
necessary in order to make the statements in such SEC Reports, in
the light of the circumstances under which they were made, not
misleading. The Company does not know of any fact, event or
circumstance (other than the consummation of the transactions
contemplated hereby and in the Merger Agreement) that has occurred
since the date of the last SEC Report, or that now exists, that
(i) would have been required to be disclosed in a SEC Report
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if it had occurred prior to the date thereof, or (ii) that has
had or would have a Material Adverse Effect individually or in
the aggregate.
5.10 No Other Representations or Warranties. Except as specifically and
expressly set forth in this Article V, the Company makes no
representation of warranty, express or implied, relating to the
Company, or the assets or business of the Company.
ARTICLE VI
REPORTING AND PREPAYMENT
6.1 Accounting. The Company will maintain and will cause each of its
Subsidiaries to maintain a system of accounting established and
administered in accordance with GAAP and all financial statements
or information delivered under Section 6.2 will be prepared in
accordance with GAAP except as otherwise set forth in Section 6.2.
6.2 Financial Statements and Other Information. The Company will
deliver to the Purchasers:
(a) within 100 days after the end of each fiscal year of the
Company, audited consolidated balance sheets of the Company
and its Subsidiaries and related statements of income,
stockholders' equity and cash flows as of the end of and for
such year, setting forth in each case in comparative form the
figures for the previous fiscal year, all reported on by
Ernst & Young LLP or other independent public accountants of
recognized national standing (without a "going concern" or
like qualification or exception and without any qualification
or exception as to the scope of such audit) to the effect
that such consolidated financial statements present fairly in
all material respects the financial condition and results of
operations of the Company and its Subsidiaries on a
consolidated basis in accordance with GAAP consistently
applied;
(b) within 55 days after the end of each of the first three
fiscal quarters of each fiscal year of the Company,
consolidated balance sheets of the Company and its
Subsidiaries and related statements of operations,
stockholders' equity and cash flows as of the end of and for
such fiscal quarter and the then elapsed portion of the
fiscal year, setting forth in each case in comparative form
the figures for the corresponding period or periods of (or,
in the case of the balance sheet, as of the end of) the
previous fiscal year, all certified by the chief financial
officer, principal accounting officer, treasurer or
controller of the Company (a "Financial Officer") as
presenting fairly in all material respects
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the financial condition and results of operations of the
Company and its Subsidiaries on a consolidated basis in
accordance with GAAP consistently applied, subject to normal
year-end audit adjustments and the absence of footnotes;
(c) concurrently with any delivery of financial statements
under clause (a) or (b) above, a certificate of a Financial
Officer (i) certifying as to whether a Default has occurred
and, if a Default has occurred, specifying the details
thereof and any action taken or proposed to be taken with
respect thereto, (ii) stating whether any change in GAAP or
in the application thereof has occurred since the date
hereof, if any such change has occurred, specifying the
effect of such change on the financial statements
accompanying such certificate, and (iii) identifying all
Subsidiaries existing on the date of such certificate and
indicating, for each such Subsidiary, whether such Subsidiary
was formed or acquired since the end of the previous fiscal
quarter;
(d) concurrently with any delivery of financial statements
under clause (a) above, a certificate of the accounting firm
that reported on such financial statements stating whether
they obtained knowledge during the course of their
examination of such financial statements of any Default
(which certificate may be limited to the extent required by
accounting rules or guidelines);
(e) a copy of each financial statement, proxy statement,
report and return that the Company or any of its Subsidiaries
sends to all its equity owners or files with the Commission
or any stock exchange;
(f) unless already required by this Article VI, each
original Purchaser shall be furnished, and each subsequent
Purchaser holding Senior Unsecured Notes having a principal
balance in excess of $10,000,000, may request and shall be
furnished, copies of the documents, reports and notices of
material events delivered to the Senior Lender pursuant to
Sections 5.01 and 5.02 of the Senior Loan Agreement; and
(g) with reasonable promptness, such other data and
information as from time to time may be reasonably requested
by the Purchaser.
6.3 Inspection Rights. The Company will permit each original
Purchaser and each subsequent Purchaser holding Senior Unsecured
Notes having a principal balance in excess of $10,000,000, to
visit and inspect the properties of the Company or any Subsidiary,
review its and their books and records (and to make extracts
therefrom), and to discuss its and their affairs, finances and
accounts with their officers and personnel, all at such reasonable
times and as often as any such Purchaser may
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reasonably request upon reasonable notice to the Company, but
without unreasonable hindrance or delay.
6.4 Optional and Mandatory Prepayments. The Company may, at its
option, prepay the Senior Unsecured Notes, and shall make
mandatory prepayments of the Senior Unsecured Notes, all in
accordance with the provisions set forth in the Senior Unsecured
Notes.
6.5 Payment Set Aside. If and to the extent the Company makes a
payment or payments to the Purchaser hereunder or under the Senior
Unsecured Notes, and such payment or payments or any part thereof
are subsequently invalidated, declared to be fraudulent or
preferential, set aside, recovered from, disgorged by, or are
required to be refunded, repaid or otherwise restored to the
Company, a trustee, receiver, or any other Person under any law
(including any bankruptcy law, state or federal law, common law or
equitable cause of action), then to the extent of any such
restoration the obligation or part thereof originally intended to
be satisfied shall be revived and continued in full force and
effect as if such payment had not been made.
ARTICLE VII
AFFIRMATIVE COVENANTS
7.1 Insurance. The Company agrees to maintain or cause to be
maintained, with financially sound and reputable insurers,
insurance with respect to its assets and business and the assets
and business of each of its Subsidiaries against loss or damage of
the kinds customarily insured against, and in amounts and with
such deductibles and retention amounts as is customarily carried,
by similarly situated businesses engaged in the same or similar
businesses, and at the request of the Purchaser shall furnish the
Purchaser with evidence of the same.
7.2 Payment of Taxes. The Company agrees to pay or cause to be
paid all taxes, assessments and other governmental charges levied
upon any of its Assets or those of its Subsidiaries or in respect
of its franchises, businesses, income or profits, all trade
accounts payable in accordance with usual and customary business
terms, and all claims for work, labor or materials, which if
unpaid might become a lien or charge upon any material asset of
the Company or any of its Subsidiaries, before the same become
delinquent, except that (unless and until foreclosure, sale or
other similar proceedings shall have been commenced) no such tax,
assessment or charge need be paid if it is being contested in good
faith and by appropriate measures promptly initiated and
diligently conducted if adequate reserves (as determined in
accordance with GAAP consistently applied) shall have been
established on its books with respect thereto.
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7.3 Compliance With Laws. The Company agrees to comply in all
material respects, and shall cause its Subsidiaries to comply in
all material respects, with all laws, rules, regulations,
judgments, orders and decrees of any governmental or regulatory
authority applicable to it and its respective assets, including
all Environmental and Safety Requirements.
7.4 Corporate Existence and Property. The Company will, and will
cause each of its Subsidiaries to do, or cause to be done all
things necessary to preserve, renew and keep in full force and
effect its legal existence and its material rights, licences,
permits, franchises, patents, copyrights, trademarks and trade
names; provided that the foregoing shall not prohibit any merger,
consolidation, liquidation or dissolution permitted under Section
8.4.
ARTICLE VIII
NEGATIVE COVENANTS
8.1 Indebtedness Incurred. Unless it complies with the
provisions of Section 2(c) of the Senior Unsecured Notes, the
Company shall not, and shall not permit any of its Subsidiaries
to, issue, incur, assume or permit to exist any Indebtedness,
except (a) Indebtedness evidenced by the Senior Unsecured Notes;
(b) up to $150,000,000 principal amount of Indebtedness under the
Senior Loan Agreement; (c) up to $50,000,000 principal amount of
Indebtedness under the Senior Unsecured Credit Facility; (d)
additional Indebtedness not to exceed $50,000,000; and (e)
Indebtedness secured by Permitted Liens.
8.2 Refinancing. Notwithstanding the provisions of Section 8.1,
up to an aggregate of $200,000,000 of Indebtedness under the
Senior Loan Agreement and the Senior Unsecured Credit Facility may
be refinanced by the Company and its Subsidiaries in any manner;
provided, however, that to the extent that non-senior debt sources
are used to pay senior debt, the senior debt that was repaid
cannot be reinstated as senior debt.
8.3 Liens. The Company shall not, and shall not permit any of
its Subsidiaries to, create or permit to exist any Lien (other
than Permitted Liens) with respect to any assets now or hereafter
existing or acquired, to secure the payment of any Indebtedness
unless it also secures the same amount of the Senior Unsecured
Notes (i) on a pari passu basis with such other secured
Indebtedness in respect of which such Lien was created or
permitted to exist, but such Lien shall secure such new
Indebtedness only up to the amount as has been repaid on account
of the principal amount of the Senior Unsecured Notes at the time
such Lien was created, and (ii) on
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a senior basis with respect to priority and security for Liens
securing any other secured Indebtedness. By way of example,
with respect to clause (i), in the event that secured
Indebtedness ("Prepayment Indebtedness") is incurred such that
$50,000,000 of the principal amount outstanding of the Senior
Unsecured Notes is prepaid with the proceeds of such
Indebtedness in accordance with Section 2(c) of the Notes, the
lesser of $50,000,000 or the balance of the principal amount
outstanding of the Senior Unsecured Notes after such
prepayment and all accrued and unpaid interest thereon, shall
be secured on a pari passu basis with the Prepayment
Indebtedness.
As used herein, "Permitted Liens" mean (i) Liens for current
taxes or special assessments not delinquent or for taxes or
special assessments being contested in good faith and by
appropriate proceedings that do not subject the Company or any
of its Subsidiaries to penalties under the Code and for which
adequate reserves shall have been established and are then
being maintained in accordance with GAAP; (ii) Liens in
connection with the acquisition of tangible property
(including by Capitalized Lease and vendor financings) after
the date hereof and attaching only to the property acquired;
(iii) Liens incurred or deposits made in the ordinary course
of business in connection with worker's compensation,
unemployment insurance or other forms of governmental
insurance or benefits; (iv) Liens in favor of the Senior
Lenders pursuant to the Senior Loan Documents or under
interest rate protection agreements entered into pursuant
thereto or contemplated thereby, as well as Liens in favor of
any Holder of Indebtedness used by the Company to refinance
the Company's obligations under Senior Loan Documents, the
Senior Unsecured Credit Facility or any refinancing thereof
permitted by Section 8.2; (v) mechanics', workers',
materialmen's and warehousemen's Liens arising in the ordinary
course of business in respect of obligations which are not
delinquent or which are being contested in good faith and by
appropriate proceedings and for which adequate reserves shall
have been established and are then maintained in accordance
with GAAP (or deposits made to obtain the release of such
Lien); (vi) easements and rights of way restrictions that do
not individually or in the aggregate interfere with the
ordinary conduct of the business; and (vii) Liens or deposits
required by law as a condition to the transaction of business
in the ordinary course by any of the Subsidiaries.
8.4 Liquidation, Dissolution, etc. The Company will not, nor will
it permit any Subsidiary to, merge into or consolidate with any
other Person, or permit any other Person to merge into or
consolidate with it, or liquidate or dissolve, except that,
subject to Section 8.1 of this Agreement, (i) any Person may merge
into or amalgamate or consolidate with the Company in a
transaction in which the Company is the surviving corporation,
(ii) any Person may merge into or amalgamate or consolidate with
any Subsidiary in a transaction in which the surviving entity is a
wholly owned Subsidiary and (iii) any Subsidiary may liquidate or
dissolve if the Company determines in good faith that such
liquidation or dissolution is in the best
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interests of the Company and is not materially disadvantageous
to the Purchasers in their capacity as Holder of Senior
Unsecured Notes.
8.5 Covenants Restricting Payment. The Company shall not enter
into or become subject to, or permit any of its Subsidiaries to
enter into or become subject to, any agreement or instrument which
by its terms would restrict (a) the right of any of its
Subsidiaries to make loans or advances or pay dividends or
distributions to, transfer property to, or repay any Indebtedness
owed to, the Company or another Subsidiary of the Company or (b)
the Company's right to perform any of the provisions of any of
this Agreement or the Senior Unsecured Notes, except for the
Senior Loan Documents and the Senior Unsecured Credit Facility
documents (or any Indebtedness incurred in connection with the
refinancing of the foregoing or any subsequent refinancing
pursuant to Section 8.2 hereof) so long as such restrictions
thereunder are not applicable absent the existence of an event of
default.
8.6 Transactions with Affiliates; Fees. The Company will not, nor
will it permit any Subsidiary to, sell, lease or otherwise
transfer any property or assets to, or purchase, lease or
otherwise acquire any property or assets from, or otherwise engage
in any other transactions with, any of its Affiliates, except (a)
transactions that are at prices an on terms and conditions not
less favorable to the Company or such Subsidiary that could be
obtained on an arm's-length basis from unrelated third parties,
(b) transactions that are entirely between or among the Company
and any Subsidiaries or between and among any Subsidiaries and (c)
transactions pursuant to any agreement or arrangement existing on
the date of this Agreement.
ARTICLE IX
EVENTS OF DEFAULT
9.1 Events of Default Defined; Acceleration of Maturity. If any
one or more of the following events (herein called "Events of
Default") shall have occurred:
(a) all or any part of the principal of the Senior Unsecured
Notes is not paid on the date such principal shall become due
and payable, whether at the maturity thereof, by
acceleration, by notice of mandatory prepayment or otherwise;
(b) all or any part of the interest on the Senior Unsecured
Notes is not paid within 5 days following the date such
interest becomes due and payable;
(c) all or any part of any other amount owing by the Company
to the Purchaser pursuant to the terms of this Agreement or
the Senior Unsecured
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Notes is not paid within 5 days of the date such other amount
is due and payable;
(d) default shall occur in the observance or performance of
any covenant contained in Article VIII of this Agreement
which, in the case of only those covenants that are capable
of being remedied, is not remedied within 30 days after
notice thereof to the Company;
(e) default shall occur in the observance or performance of
any of the other covenants or agreements of the Company
contained in this Agreement or the Operative Documents which
is not remedied within 45 days after notice thereof to the
Company;
(f) (i) any (x) Senior Event of Default occurs; or (y) any
default under the terms governing the Senior Unsecured Credit
Facility, any Subordinate Indebtedness or other Indebtedness
of the Company or any of its Subsidiaries in excess of
$10,000,000 occurs, and (ii) as a result of the events
specified in clause (i) hereof, the holders of such
Indebtedness declare the entire outstanding principal amount
of such Indebtedness to be immediately due and payable;
(g) a receiver, conservator, custodian, liquidator or
trustee of the Company or any of its Subsidiaries or of all
or any of the assets of any of them, is appointed by court
order; or an order for relief is entered under the federal
bankruptcy laws with respect to the Company or any of its
Subsidiaries; or any assets of any of them is sequestered by
court order; or a petition is filed against the Company or
any of its Subsidiaries under the bankruptcy, reorganization,
arrangement, insolvency, readjustment of debt, dissolution or
liquidation law of any jurisdiction, whether now or hereafter
in effect; provided, however, that if any of the foregoing
events is involuntary, such action shall not constitute an
Event of Default unless such event is not dismissed, reversed
or revoked within 60 days after the occurrence thereof;
(h) the Company or any of its Subsidiaries files a petition
in voluntary bankruptcy or seeking relief under any provision
of any bankruptcy, reorganization, arrangement, insolvency,
readjustment of debt, dissolution or liquidation law of any
jurisdiction, whether now or hereafter in effect, or consents
to the filing of any petition against it under any such law;
(i) the Company or any of its Subsidiaries makes a general
assignment for the benefit of its creditors, or admits in
writing its inability to pay its debts generally as they
become due, or consents to the appointment of a receiver,
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conservator, custodian, liquidator or trustee of the Company
or any of its Subsidiaries, or of all or any part of the
assets of any of them;
(j) final judgment for the payment of money in excess of
$10,000,000 which is not fully covered by insurance shall be
rendered by a court of record against the Company or any of
its Subsidiaries, and the Company or any such Subsidiaries
shall not (i) discharge the same or provide for its discharge
in accordance with its terms or (ii) procure a stay of
execution thereof within 30 days from the date of entry
thereof and within said period of 30 days, or such longer
period during which execution of such judgment shall have
been stayed, appeal therefrom and cause the execution thereof
to be stayed during such appeal including, without
limitation, by providing adequate bond for such judgment;
(k) any representation, warranty or certification of the Company
in this Agreement or in any Operative Documents or in any
certificate, report, financial statement delivered under or
pursuant to any provision hereof or thereof shall prove to
have been false or incorrect in any material respect on the
date or dates as of which they were made and such situation
is not remedied within 30 days after notice thereof to the
Company; or
(l) any Change of Control shall occur.
then, when any Event of Default described in clause (a), (b), (c), (d), (e),
(f), (j), (k) and (l) above has occurred and shall be continuing, the principal
of the Senior Unsecured Notes and the interest accrued thereon and all other
amounts due hereunder (the "other payments") shall, upon written notice from the
holders of the Senior Unsecured Notes representing a majority of the outstanding
principal amount of the Senior Unsecured Notes, forthwith become and be due and
payable, if not already due and payable, without presentment, demand, or notice
of any kind. When any Event of Default described in clause (g), (h) or (i) above
has occurred, the principal of the Senior Unsecured Notes, the interest accrued
thereon and the other payments shall immediately become due and payable, upon
the occurrence thereof, without presentment, demand, or notice of any kind. If
any principal, installment of interest or other payment is not paid in full on
the due date thereof (whether by maturity, prepayment, or acceleration) or any
Event of Default has occurred and is continuing, then the outstanding principal
balance of the Senior Unsecured Notes, any overdue installment of interest (to
the extent permitted by applicable law), including interest accruing after the
commencement of any proceeding under any bankruptcy or insolvency law and all
other payments will bear additional interest from the due date of such payment,
or from and after an Event of Default, at a rate equal to the lesser of (i) the
highest rate allowed by applicable law or (ii) nineteen and nine-tenths percent
(19.9%) per annum (such rate being referred to as the "Default Rate"),
compounded monthly, until the payment is received or the Event of Default is
cured, if permitted, or waived. If payment of the Senior Unsecured Notes is
accelerated, then the outstanding principal balance thereof shall bear interest
at the Default Rate from and after the Event of Default. The Company shall pay
to the holders
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of the Senior Unsecured Notes all reasonable out-of-pocket costs and expenses
incurred by any such Holder in any effort to collect the Senior Unsecured Notes,
and the other payments, including the reasonable attorneys' fees and expenses
for services rendered in connection therewith, and pay interest on such costs
and expenses to the extent not paid when demanded at the Default Rate.
9.2 Suits for Enforcement. If any Event of Default specified in Section
9.1 above has occurred and is continuing, the Purchaser may proceed to protect
and enforce such holder's rights either by suit in equity or by action at law,
or both, whether for the specific performance of any covenant or agreement
contained in this Agreement, or in aid of the exercise of any power granted in
this Agreement, or to enforce any other legal or equitable right or remedy of
the Purchaser.
9.3 Indemnification. The Company shall indemnify, defend and hold the
Purchaser, its Affiliates, officers and agents harmless from, against and in
respect of any and all claims, demands, losses, costs, expenses, obligations,
liabilities, damages, recoveries and deficiencies, including interest, penalties
and reasonable attorneys' fees (collectively, "claims"), that the Purchaser
shall incur or suffer, which arise, result from, or relate to any breach of, or
failure by the Company or any of its Subsidiaries to perform, any of its
representations, warranties, covenants or agreements in this Agreement or the
Senior Unsecured Notes or in any other instrument furnished or to be furnished
by the Company or any of its Subsidiaries hereunder or thereunder.
9.4 Delays or Omissions. No failure to exercise or delay in the
exercise of any right, power or remedy accruing to the Purchaser upon any breach
or default of the Company under this Agreement shall impair any such right,
power or remedy of the Purchaser nor shall it be construed to be a waiver of any
such breach or default, or an acquiescence therein, or of or in any similar
breach or default thereafter occurring; nor shall any waiver of any single
breach or default be deemed a waiver of any other breach or default theretofore
or thereafter occurring.
9.5 Remedies Cumulative. All remedies, under either this Agreement and
the Senior Unsecured Notes, by law or otherwise, afforded to the Purchaser shall
be cumulative and not alternative.
ARTICLE X
MISCELLANEOUS
10.1 Consent to Amendments; Waivers. Except as otherwise expressly
provided herein, the provisions of this Agreement and the Senior Unsecured Notes
may be amended or waived at any time only by the written agreement of the
Company, on the one hand, and the holders of the Senior Unsecured Notes
representing a majority of the outstanding principal amount of the Senior
Unsecured Notes, on the other hand. Any waiver, permit, consent or approval of
any kind or character on the part of such holders of any provisions or
conditions of this Agreement must be made in writing and
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shall be effective only to the extent specifically set forth in such writing. No
action taken or permit, consent, approval or waiver of any kind given by the
Purchaser in its capacity as a shareholder of the Company shall be deemed to be
an action taken or a permit, consent, approval or waiver of any kind given by
the Purchaser in its capacity as a Holder of the Senior Unsecured Notes pursuant
to the terms of this Agreement.
10.2 Survival of Terms. All representations, warranties and covenants
contained herein or made in writing by any party in connection herewith will
survive the execution and delivery of this Agreement and any investigation made
at any time by or on behalf of the Purchaser.
10.3 Confidentiality. By its acceptance of the Senior Unsecured Notes
issued hereunder, each Purchaser (including any transferee) shall be deemed to
have agreed with the Company (i) except as necessary to enforce any rights of
the Purchaser under this Agreement or under the Senior Unsecured Notes, to
maintain the confidentiality of any non-public information disclosed to such
Purchaser pursuant to Section 6.2, or obtained by such Purchaser as a result of
any inspection made pursuant to Section 6.3, and (ii) if necessary, refrain from
engaging in any transaction involving (x) the Company's securities while in
possession of any material non-public information about the Company disclosed to
such Purchaser by the Company in the course of the Company's complying with the
provisions of this Sections 6.2 or 6.3 or (y) or any other securities to which
such material non-public information relates.
10.4 Successors and Assigns. Except as otherwise expressly provided
herein, all covenants and agreements contained in this Agreement by or on behalf
of any of the parties hereto will bind and inure to the benefit of the
respective successors of the parties hereto, whether so expressed or not and the
permitted assigns of the parties hereto including, without limitation and
without need of any express assignment, subsequent holders of the Senior
Unsecured Notes. This Agreement and the rights and obligations of the Company
shall not be assigned without the prior written consent of the Purchaser. The
Purchasers may assign any of their rights under this Agreement to a Permitted
Transferee, as defined in the Senior Unsecured Notes, in accordance with the
procedures and restrictions set forth in the Senior Unsecured Notes.
10.5 Severability. Whenever possible, each provision of this Agreement
will be interpreted in such manner as to be effective and valid under applicable
law, but if any provision of this Agreement is held to be prohibited by or
invalid under applicable law, such provision will be ineffective only to the
extent of such prohibition or invalidity, without invalidating the remainder of
this Agreement unless the consummation of the transaction contemplated hereby is
materially adversely affected thereby.
10.6 Representations of Purchasers and Transferees. Each Purchaser
hereby represents and warrants to the Company, and any transferee of any initial
Purchaser hereunder, by acceptance of a Senior Unsecured Note shall be deemed to
represent and warrant to the Company as follows:
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(i) The Senior Unsecured Notes to be acquired by such Purchaser
pursuant to this Agreement and any shares of Common Stock of the Company
received as an interest payment in accordance with the terms of the Senior
Unsecured Notes are being or will be acquired for investment for its own account
and with no intention of distributing, transferring, assigning or reselling or
otherwise disposing thereof or any part thereof in any transaction that would be
in violation of the securities laws of the United States of America, or any
state. If such Purchaser should in the future decide to dispose of any of such
securities, such Purchaser understands and agrees that it may do so only once it
reasonably satisfies the Company that such transfer is in compliance with the
Securities Act and applicable state securities laws, as then in effect, and is
otherwise permitted under the terms of the Senior Unsecured Notes.
(ii) Such Purchaser understands that the Senior Unsecured Notes
are "restricted securities" under the Securities Act and will not be registered
at the time of their issuance under the Securities Act for the reason that the
sale provided for in this Agreement is exempt pursuant to Section 4(2) of the
Securities Act and that the reliance of the Company on such exemption is
predicated in part on such Purchaser's representations set forth herein, and
that such Securities may be resold without registration under the Securities Act
only in certain limited circumstances defined therein. Such Purchaser represents
that it is reasonably familiar with such resale restrictions in the Securities
Act, Rule 144 promulgated thereunder, and the other applicable federal and state
rules and regulations.
(iii) Such Purchaser is an "Accredited Investor" within the
meaning of Rule 501 of Regulation D under the Securities Act, as presently in
effect.
(iv) Such Purchaser has had adequate opportunity to ask questions
and receive answers from the Company regarding the terms and conditions of the
offering of the Senior Unsecured Notes and the business, assets, prospects and
financial condition of the Company. Such Purchaser is, or has been, an investor
in securities of companies similar to the Company and has or is represented by
one who has such knowledge and experience in financial or business matters that
it is capable of evaluation of the merits and risks of an investment in the
Senior Unsecured Notes.
10.7 Descriptive Headings. The descriptive headings of this Agreement
are inserted for convenience of reference only and do not constitute a part of
and shall not be utilized in interpreting this Agreement.
10.8 Notices. Any notices required or permitted to be sent hereunder
shall be delivered personally or mailed, certified mail, return receipt
requested and postage prepaid, or delivered by commercial overnight courier
service, with charges prepaid, to the following addresses, or such other address
as any party hereto designates by written notice to the Company, and shall be
deemed to have been given upon delivery, if delivered personally, three days
after mailing, if mailed, or one business day after delivery to the courier, if
delivered by overnight courier service:
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If to the Company, to:
CoreComm Limited
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx, Esquire
Facsimile: (000) 000-0000
with a copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxxxxxx, Esquire
Facsimile: (000) 000-0000
If to the Purchaser, to:
the address set forth for each Holder of a Senior
Unsecured Notes on the Company's books and records.
with a copy to:
Klehr, Harrison, Xxxxxx, Xxxxxxxxx & Xxxxxx LLP
000 X. Xxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx, Esquire
Facsimile: (000) 000-0000
Any party may change the address to which notices to it are to be sent by
written notice given to the other parties hereto.
10.9 Governing Law. All questions concerning the construction, validity
and interpretation of this Agreement and the exhibits and schedules hereto shall
be governed by the internal law, and not the law of conflicts, of the
Commonwealth of Pennsylvania, applicable to contracts made and wholly to be
performed in that state.
10.10 No Setoffs, etc. Except for any liability Purchasers may have
under Section 1.2(i) of the Merger Agreement, all payments hereunder and under
the Senior Unsecured Notes shall be made by the Company, without setoff, offset,
deduction or counterclaim and the liabilities and obligations of the Company
hereunder and under the Senior Unsecured Notes are acknowledged and agreed to be
separate and independent from any liability or obligation which may at any time
be owing by the Purchaser to the Company or any Subsidiary.
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10.11 Exhibits and Schedules. All exhibits and schedules hereto are an
integral part of this Agreement.
10.12 Final Agreement. This Agreement, together with the Senior
Unsecured Notes constitutes the final agreement of the parties concerning the
matters referred to herein, and supersedes all prior agreements and
understandings between the parties.
10.13 Construction. The parties hereto have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the parties hereto, and no presumption or burden of
proof shall arise favoring or disfavoring any party by virtue of the authorship
of any of the provisions of this Agreement. The parties intend that each
representation, warranty, and covenant contained herein shall have independent
significance. If any party has breached any representation, warranty or covenant
contained herein in any respect or any Event of Default shall occur, the fact
that there exists another representation, warranty or covenant or Event of
Default relating to the same subject matter (regardless of the relative levels
of specificity) which such party has not breached shall not detract from or
mitigate the fact that such party is in breach of the first representation,
warranty or covenant or that the first Event of Default shall have occurred.
10.14 Execution in Counterparts. This Agreement may be executed in any
number of counterparts, each of which when so executed and delivered shall be
deemed an original, and such counterparts together shall constitute one
instrument.
10.15 Further Cooperation. At any time and from time to time, and at
its own expense, the Company shall promptly execute and deliver all such
documents and instruments, and do all such acts and things, as the Purchaser may
reasonably request in order to further effect the purposes of this Agreement.
10.16 Participations. A Purchaser may transfer, grant or assign
participations in all or any part of its interest in the Senior Unsecured Notes
to any Permitted Transferee under Section 4 of the Senior Unsecured Notes.
10.17 CONSENT TO FORUM. AS PART OF THE CONSIDERATION, AND REGARDLESS OF
ANY PRESENT OR FUTURE DOMICILE OR PRINCIPAL PLACE OF BUSINESS OF THE COMPANY OR
ANY PURCHASER, THE COMPANY HEREBY CONSENTS AND AGREES THAT THE UNITED STATES
DISTRICT COURT IN THE EASTERN DISTRICT OF PENNSYLVANIA OR THE COURT OF COMMON
PLEAS IN PHILADELPHIA, PENNSYLVANIA SHALL HAVE EXCLUSIVE JURISDICTION TO HEAR
AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN THE COMPANY AND ANY HOLDER
PERTAINING TO, ARISING OUT OF, OR RELATING TO THIS AGREEMENT, THE SENIOR
UNSECURED NOTES, OR ANY OF THE OTHER OPERATIVE DOCUMENTS. THE COMPANY WAIVES ANY
OBJECTION BASED UPON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON
CONVENIENS AND ANY BOND, SURETY OR OTHER SECURITY THAT MIGHT BE REQUIRED IN
CONNECTION WITH
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ANY SUCH LEGAL PROCEEDING BEING INSTITUTED. THE COMPANY HEREBY WAIVES PERSONAL
SERVICE OF THE SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR
SUIT AND AGREES THAT SERVICE OF SUCH SUMMONS, COMPLAINT AND OTHER PROCESS MAY BE
MADE BY COMPLYING WITH THE PROVISIONS FOR GIVING NOTICE AS SET FORTH IN THIS
AGREEMENT. NOTHING IN THIS AGREEMENT SHALL BE DEEMED OR OPERATE TO AFFECT THE
RIGHT OF THE HOLDER TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW,
OR TO PRECLUDE THE ENFORCEMENT BY THE HOLDER OF ANY JUDGMENT OR ORDER OBTAINED
IN SUCH FORUM OR THE TAKING OF ANY ACTION UNDER THIS AGREEMENT TO ENFORCE SAME
IN ANY OTHER APPROPRIATE FORUM OR JURISDICTION.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.
SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have executed this Note Purchase
Agreement on the date first set forth above.
CORECOMM LIMITED
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Its:
-----------------------------------
/s/ Xxxxxx Xxxxxxx
----------------------------------------
Xxxxxx Xxxxxxx
/s/ Xxxxx Xxxxxxxxx
----------------------------------------
Xxxxx Xxxxxxxxx
/s/ Xxxxxxx Xxxx
----------------------------------------
Xxxxxxx Xxxx
THE XXXXXXXX XXXX TRUST
By: /s/ Xxxx X. Xxxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Trustee
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