EXHIBIT 10.7
Amendment No. 4
to
Transaction Agreement
This Amendment No. 4 ("Amendment") to the Transaction Agreement dated
as of July 8, 1998 (the "Original Agreement"), as amended by Amendment No. 1
dated as of December 18, 1998, by Amendment No. 2 dated as of February 18, 1999
and by Amendment No. 3 dated as of May 14, 1999 is made as of June 30, 1999,
among Choice One Communications Inc. (the "Corporation"), Choice One
Communications L.L.C. (the "LLC") and the persons listed on the signature pages
hereto.
WHEREAS, the initial holders of Investor Equity and Management Equity
entered into the Original Agreement on July 8, 1998 in connection with their
investments in the Corporation to be held initially through their ownership of
Units in the LLC;
WHEREAS, certain additional persons have become holders of Management
Equity pursuant to the terms of the Original Agreement subsequent to July 8,
1998;
WHEREAS, First Union Capital Partners, Inc. became a holder of Investor
Equity on February 18, 1999;
WHEREAS, General Electric Capital Corporation ("General Electric")
desires to become a holder of Investor Equity and to become a party to the
Original Agreement and certain related agreements relating to its investment in
the LLC; and
WHEREAS, the parties hereto desire that General Electric become a party
to the Original Agreement;
NOW, THEREFORE, the parties hereto hereby agree as follows:
SECTION 1. Amendment to Definitions. (a) The Original Agreement is
hereby amended by inserting the following definition of "Subsequent Investor
Purchase Agreement" before the definition of "Subsidiary" in Section 8.01:
"Subsequent Investor Purchase Agreement" means (a) the investor
purchase agreement, dated as of February 18, 1999, between the LLC and First
Union Capital Partners, Inc., as amended from time to time in accordance with
its terms, pursuant to which First Union Capital Partners, Inc. has subscribed
for 1,000,000 Class A Units and in connection therewith made an initial Capital
Contribution of $300,000 and (b) the investor purchase agreement, dated as of
June 30, 1999, between the LLC and General Electric Capital Corporation, as
amended from time to time in accordance with its terms, pursuant to which
General Electric Capital Corporation has subscribed for 1,000,000 Class A Units
and in connection therewith made an initial Capital Contribution of $500,000.
(b) The definition of "Investor Members" in Section 8.01 of the
Original Agreement is hereby amended by deleting it in its entirety and
replacing it with the following:
"Investor Members" means (i) MSCP, Fleet, Xxxxxx-Xxxxxx and Xxxxx X.
Xxxxxxx, each of which was, on July 8, 1998, admitted as a Member pursuant to
Section 3.01(b) of the LLC Agreement, (ii) First Union Capital Partners, Inc.,
which was admitted on February18, 1999 as a Member pursuant to Section 3.01(d)
of the LLC Agreement, (iii) General Electric Capital Corporation, which shall be
admitted on June 30, 1999 as a Member pursuant to Section 3.01(e) of the LLC
Agreement and (iv) any transferee of any Investor Equity prior to dissolution of
the LLC in compliance with Article 6 hereof that is admitted to the LLC as a
Substituted Member (as defined in the LLC Agreement) pursuant to Section 10.01
of the LLC Agreement, but in each case only so long as such Person is shown on
the LLC's books and records as the owner of one or more Units.
(c) The definition of "Maximum Commitment" in Section 8.01 of the
Original Agreement is hereby amended by deleting the second sentence in its
entirety and replacing it with the following:
"The maximum commitment, as of June 30, 1999, for each Member is listed
on the Schedule of Unitholders attached to the LLC Agreement."
SECTION 2. Amendment to Section 9.04. Section 9.04 of the Original
Agreement is hereby amended by inserting "and if such amendment to Section 6.05,
6.06 or this Section 9.04 would have an adverse economic impact (which is
disproportionate to First Union Capital Partners, Inc. or General Electric
Capital Corporation, as applicable, as compared to the other Investor Members)
on First Union Capital Partners, Inc.'s or General Electric Capital
Corporation's investment in the LLC then such amendment shall also require the
prior written consent of First Union Capital Partners, Inc. or General Electric
Capital Corporation, as applicable," after "and MSCP" and before "(but".
SECTION 3. Amendment to Section 9.13. Section 9.13 is hereby amended by
adding the following after "Nixon, Hargrave, Devans & Xxxxx LLP... (716)
263-1600" and before "and if" in such Section:
"if to General Electric to:
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General Electric Capital Corporation
c/o G.E. Capital Services
Structured Finance Group, Inc.
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000
Facsimile: 000-000-0000
SECTION 4. Agreement to Be Bound. General Electric hereby adopts,
executes and delivers, and agrees to bound by, the Original Agreement as amended
hereby.
SECTION 5. Other Defined Terms. Capitalized terms used in this
Amendment and not otherwise defined have the meanings ascribed to them in the
Original Agreement.
SECTION 6. Effect of Amendment; Governing Law. Except as amended
hereby, the Original Agreement shall remain unchanged. The Original Agreement,
as amended hereby, shall remain in full force and effect. This Amendment shall
be governed by, and construed under, the laws of the State of Delaware, all
rights and remedies being governed by said laws, without regard to conflict of
laws principles.
SECTION 7. Counterparts. This Amendment may be executed simultaneously
in two or more counterparts, any one of which need not contain the signatures of
more than one party, but all such counterparts taken together shall constitute
one and the same agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date first written above.
CHOICE ONE COMMUNICATIONS INC.
By: /s/ Xxxxx X. Xxxxxx
---------------------------------------
Its: President and Chief Executive Officer
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CHOICE ONE COMMUNICATIONS
L.L.C.
By: /s/ Xxxxx X. Xxxxxx
---------------------------------------
Its: Authorized Person
---------------------------------------
GENERAL ELECTRIC CAPITAL
CORPORATION
By: /s/ Xxxxx X. Xxxxxxxxx
---------------------------------------
Its: Manager of Operations
---------------------------------------
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MANAGEMENT MEMBERS
/s/ Xxxxx X. Xxxxxx,
---------------------------
as a Management Member and as Chief
Executive Officer of Choice One
Communications, Inc.
/s/ Xxx Xxxxxx-Xxx
---------------------------
/s/ Xxxxx Xxxxxxx
---------------------------
/s/ Xxxxxxx Xxxxxx
---------------------------
/s/ Xxxxxx Xxxxxx
---------------------------
/s/ Xxxxxxxxx Xxxxx
---------------------------
/s/ Xxxxxx Xxxxxxx
---------------------------
/s/ Xxxxxxxx Xxxxxx
---------------------------
/s/ Xxxxx Xxxxxxx
---------------------------
/s/ Xxxx Xxxxxx
---------------------------
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/s/ Xxxxx Xxxxx
---------------------------
/s/ Xxxxxxx Xxxxxxxxx
---------------------------
/s/ Xxxxxx X. Xxxx
---------------------------
/s/ Xxxxxxx X'Xxxxxx
---------------------------
/s/ Xxxxxx Xxxxxxx
---------------------------
/s/ Xxx Xxxxxxx
---------------------------
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INVESTOR MEMBERS
XXXXXX XXXXXXX CAPITAL
PARTNERS III, L.P.
By MSCP III, L.P., its general partner
By Xxxxxx Xxxxxxx Capital
Partners III,
Inc., its general partner
By /s/ Xxxxxxx Xxxxxx
---------------------------
Its Managing Director
---------------------------
By /s/ Xxxx Xxxxxxxxxx
---------------------------
Its Principal
---------------------------
MSCP III 892 INVESTORS, L.P.
By MSCP III, L.P., its general partner
By Xxxxxx Xxxxxxx Capital Partners III,
Inc., its general partner
By /s/ Xxxxxxx Xxxxxx
---------------------------
Its Managing Director
---------------------------
By /s/ Xxxx Ehrenhranz
---------------------------
Its Principal
---------------------------
XXXXXX XXXXXXX CAPITAL
INVESTORS, L.P.
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By MSCP III, L.P., its general partner
By Xxxxxx Xxxxxxx Capital Partners III,
Inc., its general partner
By /s/ Xxxxxxx Xxxxxx
---------------------------
Its Managing Director
---------------------------
By /s/ Xxxx Xxxxxxxxxx
---------------------------
Its Principal
---------------------------
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XXXXXXXX PARTNERS III, L.P.
By Silverado III, L.P., its General Partner
By Silverado III Corp., its General Partner
By /s/ Xxxxxx X. Xxx Xxxxx
---------------------------
Chairman & CEO
XXXXXXX PLAZA PARTNERS
By /s/ Xxxxxx X. Xxx Xxxxx
---------------------------
Managing General Partner
FLEET VENTURE RESOURCES, INC.
By /s/ Xxxxxx X. Xxx Xxxxx
---------------------------
Chairman & CEO
FLEET EQUITY PARTNERS VI, L.P.
By Fleet Growth Resources II, Inc., its
General Partner
By /s/ Xxxxxx X. Xxx Xxxxx
---------------------------
Chairman & CEO
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XXXXXX-XXXXXX MEDIA PARTNERS,
L.P.
By Xxxxxx Xxxxxx Media, L.L.C. its general
partner
By /s/ Xxxxx Xxxxxxxxx
---------------------------
Chief Executive Officer
FIRST UNION CAPITAL PARTNERS,
INC.
By: /s/ Xxxxxx Xxxxxx
---------------------------
Its: Managing Partner
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XXXXX X. XXXXXXX
/s/ Xxxxx X. Xxxxxxx
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