EXHIBIT 10.4
AMENDMENT NO.1 TO SECURITIES PURCHASE AGREEMENT
AND CONSENT AGREEMENT
This AMENDMENT NO.1 TO SECURITIES PURCHASE AGREEMENT AND CONSENT AGREEMENT
(this "Agreement") is made as of March 10, 1998 by and among AT&T Wireless PCS,
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Inc., a Delaware corporation ("AT&T PCS"), the cash equity investors listed on
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the signature pages hereto (the "Cash Equity Investors"), the management
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stockholders listed on the signature pages hereto (the "Management
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Stockholders"), and Triton PCS Holdings, Inc., a Delaware corporation formerly
known as Triton PCS, Inc. (the "Company").
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Background. AT&T PCS, the Cash Equity Investors, the Management
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Stockholders, and the Company are parties to that certain Securities Purchase
Agreement dated as of October 8, 1997, as amended by that certain Closing
Agreement dated as of February 4, 1998 (as so amended, the "Securities Purchase
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Agreement"). Closing of the transactions contemplated by the Securities
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Purchase Agreement occurred as of February 4, 1998. The parties desire to
further amend the Securities Purchase Agreement as set forth herein.
Capitalized terms used but not defined herein shall have the meanings given to
such terms in the Securities Purchase Agreement.
NOW, THEREFORE, in consideration of the foregoing Background, the mutual
promises and agreements made herein and other good and valuable consideration,
the receipt of which is hereby acknowledged, the parties, intending to be
legally bound hereby, agree as follows:
1. Myrtle Beach Acquisition. Notwithstanding anything to the contrary
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contained in the Securities Purchase Agreement or the Related Agreements
(including, without limitation, Sections 7.4, 7.11(b) and 8.4(a) of the
Stockholders Agreement), the parties hereby consent to the purchase by one or
more subsidiaries of the Company from Vanguard Cellular Systems of South
Carolina, Inc., a North Carolina corporation ("Vanguard"), of substantially all
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of Vanguard's assets that are used in or useful to the ownership and operation
by Vanguard of the cellular telecommunications system in Xxxxx Xxxxxxxx 0-
Xxxxxxxxxx Xxxxx Service Area, Market No. 629 for approximately $160 million
(the "Myrtle Beach Acquisition"), $35 million of which is to be financed through
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additional equity commitments and contributions from the Cash Equity Investors
(the "Equity Financing") and $125 million of which is anticipated to be financed
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by a proposed $135 million credit facility (the "Debt Financing") from The
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Chase Manhattan Bank, Xxxxxx Guaranty Trust Company of New York and Toronto
Dominion Bank (the "Debt Financing Lenders"); provided, however, that the
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parties acknowledge that, subject to the approval by the Company's board of
directors, the proceeds of a high-yield subordinated debt offering may be used
for all or a portion of the Debt Financing. Upon consummation of such
acquisition, the FCC licenses acquired from Vanguard shall constitute "Permitted
Cellular Licenses" as that term is defined and used in the Stockholders
Agreement.
2. Equity Financing for Myrtle Beach Acquisition.
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(a) The Cash Equity Investors acknowledge that the Company intends to
seek commitments from the Cash Equity Investors in respect of the Equity
Financing. Each of the Equity Investors may elect to participate on a pro-rata
basis in the Equity Financing by the giving of written notice to the Company to
such effect within the period set forth in Section 7.2(b) of the Stockholders
Agreement.
(b) On the date hereof, $8 million (the "Deposit Financing") is being
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contributed to the capital of the Company by the Cash Equity Investor set forth
on Schedule I hereto (the "Deposit Financing Investor"), which amount represents
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the Deposit Investor's funding of its pro-rata portion of the Equity Financing
and which will be deposited into escrow by the Company in connection with the
signing of the definitive acquisition agreement for the Myrtle Beach
Acquisition. The Deposit Financing Investor will be issued as of the date hereof
the number of shares of Series C Preferred Stock set forth opposite its name on
Schedule I. As promptly as practicable after the date hereof, the Company will
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amend and distribute to all of the parties hereto a revised Schedule I to the
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Securities Purchase Agreement reflecting the revised Aggregate Commitments of
the Cash Equity Investors and the aggregate amount of shares of Series C
Preferred Stock issued to the Cash Equity Investors after giving effect to the
Deposit Financing.
(b) If the number of shares of authorized Series C Preferred Stock is
insufficient in order to issue shares of Series C Preferred Stock upon
conversion of the Series D Preferred Stock in accordance with the terms of the
Restated Certificate, (x) the Company will promptly amend the Restated
Certificate in order to authorize a sufficient number of shares of Series C
Preferred Stock, and (y) each of AT&T PCS, the Cash Equity Investors and the
Management Stockholders agrees to vote its shares of Preferred Stock and Common
Stock in favor of such amendment.
3. Preemptive Rights.
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(a) Each of the parties hereto waives the notice requirements set
forth in Section 7.2(b) of the Stockholders Agreement with respect to the
Deposit Financing.
(b) Each of AT&T PCS, the Management Stockholders and the Cash Equity
Investors hereby waives its preemptive rights that are afforded such party in
Section 7.2 of the Stockholders Agreement with respect to the Deposit Financing.
Each of AT&T PCS and the Management Stockholders hereby waives its preemptive
rights that are afforded such party in Section 7.2 of the Stockholders Agreement
with respect to the Equity Financing.
4. Representations and Warranties.
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(a) Each party hereto represents and warrants to the other parties
that (i) it has the full legal right and all power and authority required to
enter into, execute and deliver this Agreement and to perform fully its
obligations hereunder and (ii) this Agreement has been duly executed and
delivered and constitutes the valid and binding obligation of such party,
enforceable against such party in accordance with their respective terms, except
as such enforceability may be limited by bankruptcy, insolvency, moratorium or
other similar laws affecting or relating to enforcement of creditors' rights
generally and may be subject to general principles of equity.
(b) The Company ratifies for the Deposit Financing Investors the
representations and warranties of the Company set forth in Section 5.13 of the
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Securities Purchase Agreement.
(c) The shares of Series C Preferred Stock being issued to the Deposit
Financing Investor hereunder, when issued and paid for pursuant to the terms of
this Agreement, will be duly authorized, validly issued, fully paid and
nonassessable, and will be free of any Liens caused or created by the Company,
except as set forth in the Stockholders Agreement and the Restated Certificate.
The shares of Common Stock issued upon conversion of the Series C Preferred
Stock, when issued pursuant to the terms of the Series C Preferred Stock, will
be validly issued, fully paid and nonassessable, and will be free of any Liens
caused or created by the Company, except as set forth in the Stockholders
Agreement and the Restated Certificate.
(d) Each Cash Equity Investor represents to the Company and each other
Cash Equity Investor as follows:
(i) It is an "accredited investor" as defined in Regulation D
of the Securities Act. Its representatives have been provided an opportunity to
ask questions of, and have received answers thereto from, the Company and its
representatives regarding the terms and conditions of its decision whether to
purchase additional Series C Preferred Stock, and the Company and its business
generally, and have obtained all additional information requested by it to
verify the accuracy of all information furnished to it in connection with such
purchase.
(ii) It has such knowledge and experience in financial and
business affairs that it is capable of evaluating the merits and risks of
purchasing the Series C Preferred Stock, if any, it is purchasing hereunder.
(iii) It is not relying on and acknowledges that no
representation is being made by any other Cash Equity Investor, the Company or
any of its officers, employees, Affiliates, agents or representatives, or any
Management Stockholder, except for representations and warranties expressly set
forth in this Agreement, and, in particular, it is not relying on, and
acknowledges that
no representation is being made in respect of, (a) any projections, estimates or
budgets delivered to or made available to it of future revenues, expenses or
expenditures, or future results of operations and (b) any other information or
documents delivered or made available to it or its representatives, except for
representations and warranties expressly set forth in this Agreement.
(iv) In deciding to invest further in the Company, the Deposit
Financing Investor has relied exclusively on the representations and warranties
expressly set forth in this Agreement and the investigations made by itself and
its representatives and its and such representatives' knowledge of the industry
in which the Company operates. Based solely on such representations and
warranties and such investigations and knowledge, it has determined that the
Series C Preferred Stock it is purchasing is a suitable investment for it.
(e) The Company represents and warrants to each of the Cash Equity
Investors as follows:
(i) None of the Company, any Management Stockholder or any
Person acting on its behalf has offered the Series C Preferred Stock being
offered hereunder for sale to, or solicited any offers to buy Series C Preferred
Stock or any similar equity securities of the Company from, any Person, other
than the Cash Equity Investors .
(ii) Neither the Company nor any Person acting on its behalf
will, directly or indirectly, take any action which might subject the offering,
issuance or sale of the Series C Preferred Stock hereunder to the registration
and prospectus delivery requirements of Section 5 of the Securities Act.
(iii) Assuming the accuracy of the representations and warranties
of the Cash Equity Investors contained in Section 4(d) above, the offering and
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sale of Series C Preferred Stock under this Agreement complies or will comply
with all applicable requirements of Federal and state securities laws.
5. Conditions Precedent. The obligation of the Deposit Financing
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Investor to provide the Deposit Financing to occur on the date hereof is
conditioned on the following, unless waived by the Deposit Financing Investor:
(a) The execution of a commitment letter with the Debt Financing
Lenders to provide the Debt Financing on the terms and subject to the conditions
contained therein.
(b) This Agreement shall have been duly executed and delivered by all
of the parties hereto.
6. Miscellaneous. Except for the modifications and other agreements
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stated above, all other terms and conditions of the Securities Purchase
Agreement shall remain the same and continue in full force and effect and shall
constitute the legally valid and binding obligations of the parties hereto
enforceable in accordance with their terms.
[SIGNATURES CONTAINED ON NEXT PAGE]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
Company:
TRITON PCS HOLDINGS, INC.
By: ______________________________________________
Name:
Title:
AT&T PCS:
AT&T PCS WIRELESS, INC.
By: ______________________________________________
Name:
Title:
Cash Equity Investors:
CB CAPITAL INVESTORS, L.P.
By: CB Capital Investors, Inc., its general
partner
By: ______________________________________________
Name:
Title:
X.X. XXXXXX INVESTMENT CORPORATION
By: ______________________________________________
Name:
Title:
SIXTY WALL STREET SBIC FUND, L.P.
By: Sixty Wall Street SBIC Corporation its general
partner
By: ______________________________________________
Name:
Title:
[SIGNATURES CONTINUED ON NEXT PAGE]
PRIVATE EQUITY INVESTORS III, L.P.
By: Xxxxx X. Xxxxx Associates III, L.L.C., its
general partner
By: ______________________________________________
Name:
Title:
EQUITY-LINKED INVESTORS-II
By: Xxxxx X. Xxxxx Associates-II, its general
partner
By: ______________________________________________
Name:
Title:
TORONTO DOMINION CAPITAL (USA), INC.
By: ______________________________________________
Name:
Title:
FIRST UNION CAPITAL PARTNERS, INC.
By: ______________________________________________
Name:
Title:
DAG-TRITON PCS, INC.
By: Duff Xxxxxxxx Xxxxxxxx, LLC, its general
partner
By: ______________________________________________
Name:
Title:
[SIGNATURES CONTINUED ON NEXT PAGE]
Management Stockholders:
__________________________________________________
Xxxxxxx X. Xxxxxxxx
__________________________________________________
Xxxxxx X. Xxxxxxx
SCHEDULE I
Deposit Financing Investor
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Cash Equity Investor Series C Preferred Shares
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1. CB Capital Investors, L.P. 80,000
