Exhibit 99.1
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AMENDMENT NO. 2 TO AGREEMENT TO PURCHASE LMDS LICENSE
AMENDMENT NO. 2, dated as of October 20, 1998 (this
"Amendment"), to the Agreement to Purchase LMDS License, dated as of July 10,
1998, as amended on Ocotber 6, 1998 (the "Purchase Agreement"), among WinStar
Communications, Inc., a Delaware corporation ("Purchaser"), CellularVision USA,
Inc., a Delaware corporation ("CVUSA") and CellularVision of New York, L.P., a
Delaware limited partnership ("Seller").
WHEREAS, the parties hereto have executed and delivered the
Purchase Agreement and have agreed to amend the Purchase Agreement as set forth
in this Amendment;
NOW, THEREFORE, for good and valuable consideration, the
sufficiency and receipt of which are hereby acknowledged, the parties hereto
hereby agree as follows:
Section 1. Definitions. Capitalized terms used but not defined in this
Amendment shall have the meanings given to such terms in the Purchase Agreement.
Section 2. Termination.
a. Section 6 of the Purchase Agreement is amended to read as
follows:
"Either Party which is not then in material breach of
its obligations hereunder may terminate this Agreement without
liability by written notice to the other party if the Closing
Date shall not have occurred on or before January 31, 1999,
provided, however, that upon Purchaser's notice given at least
10 days prior to the date that termination would otherwise be
permitted, such date shall be extended to June 30, 1999 and,
thereafter, to December 31, 1999 if (i) Purchaser is not in
material breach of its obligations hereunder and (ii) on each
such occasion Purchaser makes an additional loan of $3.5
million in principal amount to the Seller on substantially the
same terms as the Loans. Notwithstanding the foregoing, unless
Purchaser is in material breach of its obligations hereunder,
Seller and CVUSA may not terminate this Agreement under the
terms of this Section 6 if: (i) a stay, injunction, legal
process or court order has acted to prohibit, prevent or delay
Purchaser from exercising its right to terminate this
Agreement under Section 13(c) hereof; or (ii) Purchaser has
commenced as
action, proceeding or other legal procedure seeking a
determination whether this Agreement may be specifically
enforced in accordance with Section 13(c) and 14(b) hereof.
Purchaser may terminate this Agreement at any time if CVUSA
has not obtained stockholder approval of this transaction by
November 30, 1998."
b. Subsection 13(c) of the Purchase Agreement is amended by
replacing the date "October 20, 1998" appearing in the first sentence
of such subsection with the date "November 30, 1998".
c. Subsection 13(c)(ii) of the Purchase Agreement is amended
by replacing the amount "$1,625,000" appearing in the first sentence of such
subsection with the amount "$2,500,000".
Section 3. Effective Date; Purchase Agreement. This Amendment shall be effective
as of the date hereof and, except as set forth herein, the Purchase Agreement
shall remain in full force and effect, shall apply to this Amendment, and shall
be otherwise unaffected hereby.
Section 4. Headings. The section headings herein are for convenience of
reference only, do not constitute part of this Amendment and will not be deemed
to limit or otherwise affect any of the provisions hereof.
Section 5. Counterparts. This Amendment may be executed in two or more
counterparts, each of which shall constitute an original and all of which, when
taken together, shall constitute one and the same agreement.
Section 6. Governing Law. THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF LAW PROVISIONS
THEREOF.
Section 7. Successors and Assigns. This Amendment shall be
binding upon the parties hereto and their respective successors, executors,
administrators, legal representatives, heirs and legal assigns and shall inure
to the benefit of the parties hereto and, except as otherwise provided herein,
their respective successors, executors, administrators, legal representatives,
heirs and legal assigns. No person other than the parties hereto and their
respective successors, executors, administrators, legal representatives, heirs
and legal assigns shall have any rights or claims under this Amendment.
IN WITNESS WHEREOF, the parties hereto have executed this
Amendment as of the day and year first above written.
WINSTAR COMMUNICATIONS, INC.
By:/s/X.X. Xxxxxx
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Executive Vice President
CELLULARVISION USA, INC.
By:/s/Xxxxx X. Xxxxxxxxx
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Chief Executive Officer
CELLULARVISION OF NEW YORK, L.P.
By: CELLULARVISION CAPITAL CORP.,
its General Partner
By:/s/Xxxxx X. Xxxxxxxxx
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President
