EXHIBIT 10.9
AMENDMENT NO. 13
TO
TRANSACTION AGREEMENT
This Amendment No. 13 ("AMENDMENT") to the Transaction Agreement dated
as of July 8, 1998, as amended by Amendment No. 1 dated as of December 18,
1998, by Amendment No. 2 dated as of February 18, 1999, by Amendment No. 3
dated as of May 14, 1999, by Amendment No. 4 dated as of June 30, 1999, by
Amendment No. 5 dated as of June 30, 1999 ("AMENDMENT NO. 5"), by Amendment
No. 6 dated as of November 18, 1999, by Amendment No. 7 dated as of August
1, 2000, by Amendment No 8 dated as of December 20, 2000, by Amendment No.
9 dated as of March 13, 2001, by Amendment No. 10 dated as of June 21,
2001, by a separate and distinct Amendment No. 10 dated as of November 9,
2001 ("AMENDMENT NO. 10"), by Amendment No. 11 dated as of December 19,
2002 and by Amendment No. 12 dated as of May 22, 2002 (as so amended, the
"ORIGINAL Agreement"), is made as of September 12, 2002, among Choice One
Communications Inc. (the "CORPORATION") and the persons listed on the
signature pages hereto.
WHEREAS, the parties desire to amend the Original Agreement to make
additional warrants issued to Wachovia Investors, Inc., Xxxxxx Xxxxxxx
Emerging Markets Inc., CIBC Inc. and MSDWCP IV (as defined in Amendment No.
5) subject to the tag-along and drag-along rights described in Sections
6.05 and 6.06 of the Original Agreement;
NOW, THEREFORE, the parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS. Section 8.01 of the Original Agreement is
hereby amended to add a definition of Credit Agreement and to modify the
definitions of "Designated Transfer" and "Warrants", all to read as
follows:
"CREDIT AGREEMENT" means the Third Amended and Restated Credit
Agreement dated as of the date hereof among the Corporation, as Guarantor,
the Subsidiaries party thereto, the lenders party thereto, Wachovia
Investors, Inc., as administrative agent and collateral agent, General
Electric Capital Corporation, as syndication agent, and Xxxxxx Xxxxxxx
Senior Funding, Inc., as documentation agent, as amended from time to time.
"DESIGNATED TRANSFER" means any Transfer of Warrants or Warrant Shares
by any Warrant Holder (i) in connection with a Transfer by such Warrant
Holder of (x) any loans outstanding under the Bridge Financing Agreement
dated as of August 1, 2000 among the Corporation, the Lenders and Xxxxxx
Xxxxxxx Senior Funding, Inc., as Administrative Agent (as amended from time
to time), (y) any loans outstanding under the Credit Agreement, or (z) any
notes held by such Warrant Holder and issued in exchange for, or the
proceeds of which have been applied to repay, any such loans, or (ii)
effected pursuant to a merger, consolidation or sale of all or
substantially all of the assets of such Warrant Holder or its direct or
indirect parent.
"WARRANTS" means the warrants of the Corporation dated November 9,
2001 originally issued to First Union Investors, Inc., Xxxxxx Xxxxxxx & Co.
Incorporated and CIBC Inc. and the warrants of the Corporation dated
September 12, 2002 originally issued to Wachovia Investors, Inc., Xxxxxx
Xxxxxxx Emerging Markets Inc., CIBC Inc. and MSDWCP IV.
SECTION 2. APPLICATION OF SECTIONS 6.01, 6.05, 6.06 AND 6.03(B) TO
WARRANT HOLDERS. Sections 6.01, 6.05 and 6.06 of the Original Agreement
shall apply to the Warrant Holders, the Warrants and the Warrant Shares on
the terms and conditions, and subject to the exceptions, set forth in
Sections 2 and 3 of Amendment No. 10.
SECTION 3. OTHER DEFINED TERMS. Capitalized terms used in this
Amendment and not otherwise defined have the meanings ascribed to them
in the Original Agreement.
SECTION 4. EFFECTIVENESS; EFFECT OF AMENDMENT; GOVERNING LAW.
Except as amended hereby, the Original Agreement shall remain unchanged.
Except as provided in Amendment No. 10 and herein, and except to the
extent that the Original Agreement applies to MSDWCP IV other than
as a result of its ownership of Warrants or Warrant Shares, (i) no
provision of the Original Agreement shall apply to the Warrant Holders,
the Warrants or the Warrant Shares, and (ii) the Warrant Holders shall
have no rights or obligations under the Original Agreement. 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 5. 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.
SECTION 5. COUNTERPARTS. This Amendment may be executed
simultaneously in two or more counterparts, any 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.
2
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
-------------------------------------------
Xxxxx X. Xxxxxx
Chairman and Chief Executive Officer
MANAGEMENT MEMBERS
/s/ Xxxxx X. Xxxxxx
-------------------------------------------
Xxxxx X. Xxxxxx, as a Management
Member and as Chief Executive Officer of
Choice One Communications Inc.
/s/ Xxx Xxxxxx-Xxx
-------------------------------------------
Xxx Xxxxxx-Xxx
/s/ Xxxxx Xxxxxxx
-------------------------------------------
Xxxxx Xxxxxxx
/s/ Xxxxxx Xxxxxx
-------------------------------------------
Xxxxxx Xxxxxx
/s/ Xxxx Xxxxxxxxx
-------------------------------------------
Xxxx Xxxxxxxxx
3
INVESTOR MEMBERS
XXXXXX XXXXXXX CAPITAL PARTNERS III, L.P.
By MSCP III, LLC, its general partner
By Xxxxxx Xxxxxxx Capital Partners III, Inc., its
Member
By /s/ Xxxx X. Xxxxxxxxxx
-----------------------------------------------
Its MANAGING DIRECTOR
MSCP III 892 INVESTORS, L.P.
By MSCP III, LLC, its general partner
By Xxxxxx Xxxxxxx Capital Partners III, Inc., its
Member
By /s/ Xxxx X. Xxxxxxxxxx
-----------------------------------------------
Its MANAGING DIRECTOR
XXXXXX XXXXXXX CAPITAL INVESTORS, L.P.
By MSCP III, LLC, its general partner
By Xxxxxx Xxxxxxx Capital Partners III, Inc., its
Member
By /s/ Xxxx X. Xxxxxxxxxx
-----------------------------------------------
Its MANAGING DIRECTOR
4
XXXXXX XXXXXXX XXXX XXXXXX CAPITAL PARTNERS IV, L.P.
By MSDW Capital Partners IV, LLC, its
general partner
By MSDW Capital Partners IV, Inc., its Member
By /s/ Xxxx X. Xxxxxxxxxx
-----------------------------------------------
Its MANAGING DIRECTOR
MSDW IV 892 INVESTORS, L.P.
By MSDW Capital Partners IV, LLC, its general
partner
By MSDW Capital Partners IV, Inc., its Member
By /s/ Xxxx X. Xxxxxxxxxx
-----------------------------------------------
Its MANAGING DIRECTOR
XXXXXX XXXXXXX XXXX XXXXXX CAPITAL INVESTORS IV,
L.P.
By MSDW Capital Partners IV LLC, its
general partner
By MSDW Capital Partners IV, Inc., its Member
By /s/ Xxxx X. Xxxxxxxxxx
-----------------------------------------------
Its MANAGING DIRECTOR
5
FLEET VENTURE RESOURCES, INC.
By: /s/ Xxxxxx X. Xxx Xxxxx
--------------------------------
Xxxxxx X. Xxx Xxxxx
Under Power of Attorney Dated 8/4/00
FLEET EQUITY PARTNERS VI, L.P.
By: Silverado IV Corp., its General Partner
By: /s/ Xxxxxx X. Xxx Xxxxx
---------------------------------
Xxxxxx X. Xxx Xxxxx
Chairman & CEO
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
---------------------------------
Xxxxxx X. Xxx Xxxxx
Chairman & CEO
XXXXXXX PLAZA PARTNERS
By: /s/ Xxxxxx X. Xxx Xxxxx
---------------------------------
Xxxxxx X. Xxx Xxxxx
Managing General Partner
XXXXXX-XXXXXX MEDIA PARTNERS, L.P.
By: Xxxxxx Xxxxxx Media, L.L.C. its general
partner
By: /s/ Xxxxx X. Xxxxxxxxx
---------------------------------
Xxxxx Xxxxxxxxx
Chief Executive Officer
6
LENDERS
XXXXXX XXXXXXX & CO. INCORPORATED
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Managing Director
XXXXXX XXXXXXX EMERGING MARKETS INC.
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Managing Director
WACHOVIA INVESTORS, INC. (formerly known as
First Union Investors, Inc.)
By: /s/ Xxxx Xxxxx
---------------------------------
Name: Xxxx Xxxxx
Title: Managing Director
CIBC INC.
By: /s/ Xxxxxxx Xxxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Managing Director
