MODIFICATION AGREEMENT
MODIFICATION AGREEMENT dated as of December 12, 1996 among
CAI WIRELESS SYSTEMS, INC., a Connecticut corporation ("CAI"), the
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subsidiaries of CAI listed on the signature pages hereto
(collectively with CAI, the "Company"), BANX PARTNERSHIP, a Delaware
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general partnership ("BANX"), MMDS HOLDINGS, INC., a Delaware
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corporation ("MMDS Holdings"), MMDS HOLDINGS II, INC., a Delaware
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corporation ("MMDS Holdings II"), NYNEX MMDS COMPANY, a Delaware
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corporation ("NYNEX MMDS"), and NYNEX MMDS HOLDING COMPANY, a Delaware
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corporation ("NYNEX MMDS Holding").
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RECITALS
1. The Company and BANX are parties to a Securities
Purchase Agreement dated as of March 28, 1995, as amended (the
"Securities Purchase Agreement"; capitalized terms defined
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therein and used but not defined herein being used as therein
defined), pursuant to which CAI issued and sold and BANX
purchased (i) CAI's Term Notes due 2005 (the "Notes") in an
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aggregate original principal amount of $30,000,000, (ii) 7,000
shares of CAI's 14% Senior Preferred Stock, par value $10,000 per
share (the "Senior Preferred Stock"), and (iii) warrants (the
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"Warrants") to purchase CAI's Series C Convertible Preferred
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Stock. The Notes, the Senior Preferred Stock and the Warrants
are referred to herein collectively as the "Purchased
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Securities".
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2. The Company, NYNEX MMDS and MMDS Holdings are parties
to a Business Relationship Agreement dated as of March 28, 1995,
as amended (the "BR Agreement"), pursuant to which the Company
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has, among other things, granted to NYNEX MMDS and MMDS Holdings
options, on a market by market basis, to cause the Company to
provide wireless cable transmission services to NYNEX MMDS and
MMDS Holdings using the Company's transmission systems in
specified markets in their respective service areas.
3. The parties desire to modify their contractual
arrangements under the Securities Purchase Agreement and the BR
Agreement and with respect to the Purchased Securities, as set
forth herein.
Accordingly, the parties hereby agree as follows:
Section 1. Option to Purchase Securities. BANX and its
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partners, NYNEX MMDS Holding and MMDS Holdings II, hereby
grant to CAI or its designee the right and option, exercisable for a
period of twelve (12) months following the date of this Agreement, to
purchase all (but not less than all) of the Purchased Securities,
including all accrued and unpaid dividends thereon, for an aggregate
purchase price equal to the Purchase Price specified below. The
option shall be exercised by written notice to BANX, NYNEX MMDS and
MMDS Holdings II in accordance with the Securities Purchase Agreement,
which notice shall identify any designee and shall provide information
in reasonable detail with respect to the creditworthiness of any
designee and of the expected source of funds for the purchase. If the
designee (which for purposes of this sentence shall include the
ultimate parent or entity which controls the designee) is not required
to file reports pursuant to the Securities Exchange Act of 1934, then
CAI shall have thirty (30) days from the date of the notice to provide
the financial information (including the expected source of funds)
required under the immediately preceding sentence. If the notice from
CAI includes a request to keep the identity of the designee (if any)
confidential, the sellers will not publicly disclose the designee's
identity, until such time as the identity of the designee as the
purchaser of the Purchased Securities is otherwise made public, except
as may otherwise be required by any applicable law, rule, regulation,
court order or requirement of a government entity, including without
limitation, the rules or regulations of any securities exchange. Upon
such exercise, the purchase and sale of the Purchased Securities shall
occur at the offices of NYNEX MMDS Holding in New York City on the
date, not later than ninety (90) days following the date of the notice
of exercise, as shall be specified by CAI in such notice of exercise,
at which closing BANX, NYNEX MMDS Holding and MMDS Holdings II shall
deliver the certificates or other instruments representing the
Purchased Securities to CAI or its designee (without representation or
warranty except as to title) against payment of the Purchase Price in
immediately available funds, and CAI shall deliver such legal
opinions, opinions of financial advisors and officers' certificates as
may reasonably be requested by the sellers or as may be customary for
transactions of such nature, provided that if CAI or its designee is
unable to close within such 90-day period solely due to the document
deliveries required pursuant to this sentence, then at the election of
CAI in writing to sellers not less than 2 business days prior to the
expiration of such 90-day period, the full Purchase Price may be
deposited in an interest bearing account for a period of up to thirty
(30) days in order to permit the purchaser to satisfy such delivery
requirements and the closing shall be deemed timely if consummated
within such 30-day period provided the sellers shall be paid all
interest accrued on such funds during such period in
addition to the Purchase Price. The parties will use reasonable
efforts to agree upon the form of such documents within forty five
(45) days after the execution of this Agreement; provided, however,
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that the failure of the parties to so agree shall not relieve any
party of its obligation to deliver the required documents in a form
reasonably satisfactory to the receiving parties. The Purchase Price
for the Purchased Securities shall equal the amount specified below
opposite the applicable number of days following the date of this
Agreement on which the notice of exercise is delivered by CAI to BANX,
NYNEX MMDS Holding and MMDS Holdings II:
Notice of Option Exercise Purchase Price
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up to 120 days $121,000,000
after 120 days up to 240 days $100,000,000 plus payment in
full of all accrued interest
and dividends under the Notes
and Senior Preferred Stock as
of the date of notice plus
$10,000,000.
after 240 days up to 365 days $100,000,000 plus payment in
full of all accrued interest
and dividends under the Notes
and Senior Preferred Stock as
of the date of notice plus
$20,000,000.
Notwithstanding anything to the contrary herein, (i) in the event CAI
shall fail to consummate the purchase of the Purchased Securities in
accordance with the terms of this Agreement and without limitation to
any other remedies of BANX, NYNEX MMDS or MMDS Holdings occasioned by
such failure, the option to purchase pursuant to this Section 1 shall
terminate automatically and without further action of the parties, and
(ii) in the event the option to purchase pursuant to this Section 1 is
not exercised in accordance herewith on or before the 270th day
following the date of this Agreement, BANX, NYNEX MMDS Holding and
MMDS Holdings II shall have the right to sell the Purchased Securities
free and clear of the option granted hereby and the rights of the
Company pursuant hereto upon twenty (20) days' prior notice to CAI,
provided that CAI or its designee does not exercise the option in
accordance herewith within a period of ten (10) days following the
date of such notice to CAI. During the option period, CAI
shall make commercially reasonable efforts to secure the funds
required to exercise the option or to otherwise find a purchaser for
the Purchased Securities. If CAI engages in discussions or
negotiations with entities which have an interest in investing in the
Company, it shall offer such entities the option of acquiring the
Purchased Securities. CAI agrees that it shall take no action, (other
than actions in the ordinary course of its business) the effect of
which could reasonably expected to make the acquisition of the
Purchased Securities less attractive to a prospective purchaser. If
CAI obtains funds sufficient to acquire the Purchased Securities, it
shall use commercially reasonable efforts to obtain any consents or
other authorizations required to permit it to exercise the option
hereunder.
Section 2. Exercise and Conversion Prices.
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(a) Effective upon the execution and delivery of this
Agreement, (i) the Initial Tier I Conversion Price and the Initial
Tier I Exercise Price for the Senior Preferred Stock and the Warrants,
respectively, shall be reduced to an amount equal the product of the
Preferred Conversion Ratio (as defined in the Purchased Securities)
multiplied by $3.86, and (ii) the Initial Tier 2 Exercise Price, the
Initial Tier 3 Exercise Price and the Initial Tier 4 Exercise Price
shall be reduced by multiplying such amounts by a fraction, the
numerator of which is equal to the Initial Tier I Exercise Price
immediately after giving effect to the reduction pursuant to clause
(i) of this Section 2(a) and the denominator of which is equal to the
Initial Tier I Exercise Price immediately prior to giving effect to
such reduction.
(b) In the event CAI shall not have exercised its option to
purchase the Purchased Securities on or prior to 180 days after the
date of this Agreement, (i) the Initial Tier I Conversion Price and
the Initial Tier I Exercise Price for the Senior Preferred Stock and
the Warrants, respectively, in each case shall be further reduced by
an amount equal to 15% of the Initial Tier 1 Exercise Price
immediately prior to any and all such adjustments, and (ii) in each
case the Initial Tier II Exercise Price, the Initial Tier III Exercise
Price and the Initial Tier IV shall be reduced by multiplying such
price by a fraction, the numerator of which is equal to the Initial
Tier I Exercise Price immediately after giving effect to the reduction
pursuant to clause (i) of this Section 2(b) and the denominator of
which is equal to the Initial Tier I Exercise Price immediately prior
to giving effect to such reduction.
(c) Each reduction pursuant to this Section 2 shall be
cumulative with and in addition to any other reductions or
adjustments to the applicable prices pursuant hereto or under the
other applicable documents governing the Purchased Securities and each
adjustment pursuant hereto shall be affected prior to any adjustments
pursuant to such other documents.
(d) The reduction provided for in Section 2(b) above shall
not apply in the event of an exercise of the conversion rights of the
Notes or Senior Preferred Stock or an exercise of the Warrants by BANX
or its affiliates.
Section 3. Suspension of BR Agreement. Effective upon
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the execution and delivery of this Agreement, the right of NYNEX MMDS
and MMDS Holdings to exercise the options, and the obligations of the
Company to perform by the specified dates, under the BR Agreement
shall be suspended and the running of all other time periods
thereunder shall be tolled. If CAI shall purchase all of the
Purchased Securities pursuant to the exercise of its option in
accordance with Section 1 of this Agreement, the BR Agreement and all
rights and obligations of the parties thereunder shall terminate. If
CAI shall fail to provide notice of the exercise of its option to
purchase the Purchased Securities pursuant to Section 1 hereof on or
prior to the first anniversary of the date of this Agreement and
consummate a purchase transaction pursuant to Section 1 hereof, the BR
Agreement and the rights and obligations of the parties shall be
reinstated automatically and without further action of the parties,
and all time periods for performance or the exercise of any rights or
obligations thereunder, including the right to exercise the options by
NYNEX MMDS and MMDS Holdings thereunder, shall be extended by a period
equal to the period of the suspension of the BR Agreement pursuant to
this Section 3, provided that, following the end of the suspension
period, the parties agree to negotiate in good faith to amend the BR
Agreement; provided further however, that the parties are under no
obligation to agree to any amendments, modifications or waivers of the
BR Agreement other than with respect to the elimination of the
existing "Fulfillment Dates" (as defined in the BR Agreement"). The
suspension of the BR Agreement, and any reinstatement thereof, shall
not effect a waiver of any rights, obligations or claims of the
parties thereto for any period prior to such suspension or after such
reinstatement and this Agreement shall not constitute a consent to any
modification of such rights, obligations or claims except as expressly
provided hereunder.
Section 4. CS Consent Rights; Conveyance of Stock. (a)
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All rights of BANX and its affiliates to consent to the exercise by
CAI of its right to approve or disapprove of the
taking of any actions by CS Wireless Systems, Inc. pursuant to the
terms of the Consent dated February 23, 1996 (the "CS Consent") among
CAI, BANX and its affiliates shall be terminated effective upon the
execution and delivery of this Agreement.
During the option period, BANX and its affiliates party
hereto agree to xxxxx XXX a proxy for the purposes of voting their
respective shares of CS Wireless Systems, Inc. ("CS") common stock;
provided, however, that with respect to votes regarding the following
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matters, CAI must vote the shares of CS held by BANX and its
affiliates as directed by such parties:
any shareholder approval sought in connection with a public
offering of CS equity securities in the event that CAI proposes to
vote against such a transaction;
any shareholder approval in connection with a merger,
business combination, sale of all or substantially all of CS' assets
or any similar transaction, other than a transaction in which the
holders of CS common stock would become the holders of tradable
securities in a publicly traded entity, unless CAI has notified BANX
that it proposes to vote in favor of such transaction;
any shareholder approval in connection with a transaction
between CS and CAI and/or any of their respective affiliates;
any shareholder approval in connection with a redemption or
repurchase of CS' equity securities or the declaration of any
dividends; and
any transaction, other than a sale of CS equity securities
for cash, that would dilute the interest of BANX and its affiliates in
CS or grant any entity greater voting rights.
CAI will inform BANX if it proposes to exercise the proxy granted
hereunder. If the proxy would be voted in connection with one or more
of the items listed in this Section 4(b), CAI will describe the action
to be approved and CAI's intention to exercise the proxy for or
against such matter, and the notice containing the foregoing shall be
delivered as soon as possible, but in no event less than ten (10)
business days prior to the date of the vote. Unless BANX notifies CAI
prior to the actual vote that it objects to CAI's proposed vote, CAI
shall exercise the proxy as indicated in the notice.
In the event CAI exercises the proxy granted hereunder other than at
the express direction of BANX, CAI shall defend, indemnify and hold
harmless each Indemnitee (as hereinafter defined) from and against any
and all Claims (as hereinafter defined) arising out of, in connection
with or as a result of exercise of the proxy.
(c) Upon the consummation of a purchase by CAI or its
designee in accordance with the provisions of Section 1 hereof, BANX
and its partners will transfer to CAI, for no additional
consideration, the shares of CS common stock conveyed to them pursuant
to the CS Consent. CAI shall pay any and all taxes (other than income
tax) or other costs and expenses payable to third parties as a result
of such transfer.
Section 5. Modification of Covenants. The covenants of
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CAI in the Securities Purchase Agreement and in the Purchased
Securities shall be modified (i) to permit the Company to sell,
transfer or otherwise dispose of assets having a fair market value not
in excess of $2,000,000 in any one transaction or series of related
transactions from time to time to the extent permitted under the terms
of the Indenture governing CAI's 12-1/4% Senior Notes due 2002 as in
effect on the date of this Agreement and (ii) to suspend during the
term of the suspension of the BR Agreement pursuant to Section 3
hereof the right of BANX and its affiliates to approve of the Business
Plan of CAI and the following covenants in the Stage II Warrants (and
the corresponding provisions of the Stage I Warrants, the Term Notes
and the Senior Preferred Stock): Section 7.8 (other than the last
sentence thereof), 7.10(b), 7.19(d),, clause (iii) of 7.24 and 7.25.
Actions taken by CAI during the one-year period which would otherwise
have required consent under the suspended covenants shall not be
deemed to be a breach of such covenants following the termination of
such suspension; but only to the extent of actions completed or
transactions consummated as of the end of the suspension period,
provided, however, that CAI may continue to take actions, ministerial
or administrative in nature, required of CAI subsequent to the one-
year period in furtherance of the actions taken by CAI during the one-
year period, which actions shall not be deemed to be a breach of such
covenants following the termination of the suspension period.
Section 6. Removal of Equipment. Until the expiration
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of the options under the BR Agreement with respect to the Virginia
Beach and Boston markets, the Company will maintain the transmission
systems in Virginia Beach and Boston intact and will not, unless
consented to in writing by NYNEX MMDS or MMDS Holdings, as applicable,
sell, transfer or otherwise dispose of or remove from the site any of
the fixed assets or equipment
located at or utilized in the transmission systems in Virginia Beach
or Boston, provided that CAI may remove and utilize for other purposes
(i) booster transmitters and associated equipment in Boston, other
than any equipment located at or used for the main transmitter and
associated systems at One Financial in Boston and (ii) booster
transmitters and associated equipment in Virginia Beach, other than
equipment used at the Virginia Beach main transmitter.
Section 7. Cooperation. The parties shall provide
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reasonable cooperation to each other in connection with facilitating
the sale of the Purchased Securities; provided, however, that such
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cooperation shall not require the parties to make any representations,
warranties or statements or incur any obligations other than those set
forth in Section 1.
Section 8. FCC Matters. For a period of one year from
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the date hereof, each of BANX and its affiliates party hereto agrees
that it shall not oppose any FCC filing or application by CAI solely
for the purpose of: (i) transferring any of its MMDS, MDS or ITFS
leases or licenses; or (ii) modifying its authority to use such
spectrum for uses other than that permitted under existing law or
regulations, provided, however, that BANX and its affiliates party
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hereto will not be restricted from opposing any application or filing
described in clause (ii) where such application or filing, if granted,
could reasonably be expected to have the effect of restricting the
conduct of their business. Nothing in this Agreement shall have the
effect of limiting the ability of BANX and its affiliates to respond
to any communication to the FCC which they determine makes false,
misleading and/or negative reference (directly or indirectly) to BANX
or any of its affiliates.
Section 9. Publicity. The parties will make reasonable
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efforts to consult with each other prior to the issuance of a press
release regarding this Agreement. Following the dissemination of an
initial press release, the parties' obligations with respect to the
disclosure of the details of this Agreement shall be governed by the
applicable provisions of the agreements which this Agreement modifies.
Section 10. No Waiver. Failure by either party to insist
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on strict performance or observance of any provision of this Agreement
or to exercise any right or remedy shall not be construed as a waiver
of any right or remedy with respect to any existing or subsequent
breach or default. This Agreement shall not constitute a waiver,
compromise or relinquishment of any
claims relating to the BR Agreement or the documentation governing the
Purchased Securities.
Section 11. Representations and Warranties. Each party
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hereto represents and warrants to the other party that (a) such party
has all requisite legal power and authority to execute and deliver
this Agreement and to perform its obligations hereunder, (b) the
execution, delivery and performance hereof has been duly authorized by
all requisite corporate action on the part of such party, including
with respect to the Company by express Board of Directors
authorization, and (c) this Agreement (i) has been duly executed and
delivered by such party and (ii) subject to the due execution and
delivery of this Agreement by the other party hereto, this Agreement
constitutes a legal, valid and binding obligation of such party,
enforceable against it in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium and
similar laws or other laws affecting creditors' rights generally and
subject further to general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at
law). Notwithstanding anything to the contrary herein, the
effectiveness of Section 1 hereof shall be contingent on the approval
of this Agreement to the extent required by the Boards of Directors of
Xxxx Atlantic Corporation and NYNEX Corporation, which if required
BANX and its affiliates agree to seek promptly following the date
hereof.
Section 12. Effect on Agreements. The provisions of this
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Agreement shall be narrowly construed in accordance with the express
provisions hereof and except as expressly amended or modified herein,
the Stock Purchase Agreement, the Purchased Securities and the BR
Agreement and each of the provisions thereof shall remain in full
force and effect in accordance with their respective terms.
Section 13. Miscellaneous.
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(a) Entire Agreement. This Agreement constitutes the
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entire agreement between the parties with respect to the subject
matter hereof and supersedes any and all previous agreements,
representations and understandings between the parties hereto with
respect to such matters whether oral or in writing.
(b) Governing Law. This Agreement shall be governed by and
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construed in accordance with the law of the State of New York.
(c) Severability. The invalidity or unenforceability of
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any provision of this Agreement shall not affect the validly or
enforceability of any other provisions of this Agreement, each of
which shall remain in full force and effect.
(d) No Third Party Beneficiaries. This Agreement shall be
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binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns. Nothing in this Agreement shall
create or be deemed to create any third party beneficiary rights in
any person not party to this Agreement.
(e) Amendments. This Agreement may be amended,
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supplemented or modified, and any provision hereof may be waived, only
pursuant to a written instrument making specific reference to this
Agreement signed by each of the parties hereto.
(f) Counterparts. This Agreement may be executed in any
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number of counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.
Section 13. Expenses and Indemnification. Without
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limitation to Section 7.1 and 7.2 of the Securities Purchase
Agreement:
(i) each party will pay its own costs and expenses
(including reasonable fees, charges and disbursements of counsel)
incurred in connection with the preparation, negotiation and execution
of this Agreement; and
(ii) the Company agrees to indemnify BANX and its affiliates
and their respective directors, officers, employees and agents (each
such Person being an "Indemnitee") against, and to hold each
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Indemnitee harmless from, any and all losses, claims, damages,
liabilities, penalties and related costs and expenses (collectively,
"Claims"), including counsel fees, charges and disbursements, incurred
by or asserted against any Indemnitee arising out of, in any way in
connection with, or as a result of (i) the execution, delivery or
performance of this Agreement or of any document contemplated hereby
or the consummation of any of the transactions contemplated hereby,
(ii) any exercise by any Indemnitee of its rights and remedies
hereunder, or (iii) any claim litigation, investigation or proceeding
relating to any of the foregoing, whether or not any Indemnitee is a
party thereto; provided, however, that such indemnity shall not, as to
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any Indemnitee, apply to any such losses, claims, damages,
liabilities, penalties or related costs
and expenses or portion thereof arising exclusively from the material
breach, gross negligence or wilful misconduct of such Indemnitee, or
from any act or failure to act of an Indemnitee under any other
agreement or legal obligation of such Indemnitee where the Indemnitee
was under a legal obligation to act or abstain from acting, in any
such case, as determined by final order of a court of competent
jurisdiction.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement through their duly authorized representatives on the day and
year first above written.
CAI WIRELESS SYSTEMS, INC.
By:/s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title:
ROCHESTER CHOICE TELEVISION,
INC.
By:/s/ Xxxx X. Xxxxxx
---------------------------
Name: Xxxx X. Xxxxxx
Title:
HAMPTON ROADS WIRELESS, INC.
By:/s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title:
EASTERN NEW ENGLAND TV, INC.
By:/s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title:
CONNECTICUT CHOICE TELEVISION, INC.
By:/s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title:
COMMONWEALTH CHOICE
TELEVISION, INC.
By:/s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title:
ATLANTIC MICROSYSTEMS, INC.
By:/s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title:
HOUSATONIC WIRELESS, INC.
SYSTEMS, INC., d/b/a
CAPITAL CHOICE TELEVISION
By:/s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title:
NISAKAYUNA ASSOCIATES, INC.
By:/s/ Xxxx X. Xxxxxx
---------------------------
Name: Xxxx X. Xxxxxx
Title:
ONTEO ASSOCIATES, INC.
By:/s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title:
NEW YORK CHOICE TELEVISION, INC.
By:/s/ Xxxx X. Xxxxxx
---------------------------
Name: Xxxx X. Xxxxxx
Title:
CAI TRANSACTIONS P, INC.
By:/s/ Xxxx X. Xxxxxx
---------------------------
Name: Xxxx X. Xxxxxx
Title:
CAI TRANSACTIONS W, INC.
By:/s/ Xxxx X. Xxxxxx
---------------------------
Name: Xxxx X. Xxxxxx
Title:
CAI VA TRANSACTIONS, INC.
By:/s/ Xxxx X. Xxxxxx
---------------------------
Name: Xxxx X. Xxxxxx
Title:
CAI CT HOLDINGS CORP.
By:/s/ Xxxx X. Xxxxxx
---------------------------
Name: Xxxx X. Xxxxxx
Title:
BANX PARTNERSHIP
By: MMDS Holdings Inc.
By:/s/ Xxxxxx Xxxx
----------------------
Name: Xxxxxx Xxxx
Title: Assistant Secretary
By: NYNEX MMDS Company
By:/s/ Xxxxxx Xxxxx
----------------------
Name: Xxxxxx Xxxxx
Title: Vice President
MMDS HOLDINGS INC.
By:/s/ Xxxxxx Xxxx
---------------------------
Name: Xxxxxx Xxxx
Title: Assistant Secretary
MMDS HOLDINGS II INC.
By:/s/ Xxxxxx Xxxx
--------------------------------
Name: Xxxxxx Xxxx
Title: Assistant Secretary
NYNEX MMDS COMPANY
By:/s/ Xxxxxx Xxxxx
--------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
NYNEX MMDS HOLDING COMPANY
By:/s/ Xxxxxx Xxxxx
--------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
NYFS08...:\60\34460\0029\209\AGR1217Z.500
