EXHIBIT 4.10
EXECUTION COPY
AMENDMENT NO. 1 TO THE
NOTE PURCHASE AGREEMENT
Dated as of January 26, 1998
AMENDMENT NO. 1, dated as of January 26, 1998, to the NOTE PURCHASE
AGREEMENT dated as of November 24, 1997 (as amended, supplemented or otherwise
modified through the date hereof and as may be further amended, supplemented or
otherwise modified from time to time, the "NOTE PURCHASE AGREEMENT"; the terms
defined therein and not otherwise defined herein being used herein as therein
defined) among CAI Wireless Systems, Inc., a Connecticut corporation (the
"COMPANY"), the Subsidiary Obligors named therein (the "SUBSIDIARY OBLIGORS"
and together with the Company, the "OBLIGORS") and Merrill Lynch Global
Allocation Fund, Inc. (the "PURCHASER").
PRELIMINARY STATEMENTS:
(1) The Company has requested that the Purchaser purchase from
the Obligors, on the Amendment Effective Date provided for in Section 2, an
additional Note in the principal amount of $2,000,000.
(2) Subject to the terms and conditions of this Amendment No. 1,
the Purchaser has agreed to purchase such additional Note, and the Obligors and
the Purchaser have agreed to amend the Note Purchase Agreement as hereinafter
set forth.
SECTION 1. AMENDMENT. The Note Purchase Agreement is, effective
as of the date first above written and subject to the satisfaction of the
conditions precedent set forth in Section 2 hereof, hereby amended as follows:
(a) Section 1 is amended by deleting the figure $25,000,000 in
the first line thereof and substituting for such figure the figure
"$27,000,000".
(b) Section 2 is amended by deleting the figure $25,000,000 in
the third line thereof and substituting for such figure the figure
"$27,000,000".
(c) Section 4.16 is amended by adding in the parenthetical
therein before the word "the" the phrase "as amended, supplemented or
otherwise modified hereafter from time to time with the consent of the
Purchaser."
(d) The definition of "Commitment Fee" in Schedule I to the Note
Purchase Agreement is amended by deleting the figure "$250,000" therein
and substituting for such figure the figure "$270,000".
SECTION 2. CONDITIONS PRECEDENT TO EFFECTIVENESS. This Amendment
shall become effective on and as of the date (the "AMENDMENT EFFECTIVE DATE")
that the Purchaser shall have received the following, each dated such date
(unless otherwise specified), in form and substance satisfactory to the
Purchaser (unless otherwise specified):
(a) Certified copies of (i) the resolutions of the Board of
Directors of each Obligor approving this Amendment and the matters
contemplated hereby and (ii) all documents evidencing other necessary
corporate action and governmental approvals, if any, with respect to this
Amendment and the matters contemplated hereby.
(b) A certificate of the Secretary or an Assistant Secretary of
each Obligor certifying the names and true signatures of the officers of
such Obligor authorized to sign this Amendment and the other documents to
be delivered hereunder.
(c) Counterparts of this Amendment executed by each Obligor.
(d) A new Note (the "NEW NOTE") in the form of Exhibit A to the
Note Purchase Agreement in the principal amount equal to $2,000,000 duly
executed by each Obligor.
(e) Favorable opinions of counsel for each Obligor in form and
substance satisfactory to the Purchaser to the effect, among other
things, that:
(i) Each Obligor is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of
its incorporation.
(ii) This Amendment and the New Note have been duly
authorized, executed and the New Note and the Note Purchaser
Agreement, as amended by this Amendment, are the legal, valid and
binding obligation of each Obligor, enforceable against such
Obligor in accordance with its terms.
(f) A certificated signed by a duly authorized officer of the
Company stating that:
(i) The representations and warranties contained in Section
3 hereof and in each Note Document are correct on and as of the
date of such certificate as though made on and as of such date
other than any such representations or warranties that, by their
terms, refer to a date other than the date of such certificate; and
(ii) No event has occurred and is continuing that
constitutes a Default.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE BORROWER. Each
of the Obligors represents and warrants that:
(a) The Company and each of its Subsidiaries are corporations
duly organized, validly existing and in good standing under the laws of
their respective jurisdictions of incorporation.
(b) Except as set forth on Schedule 4.6 to the Note Purchase
Agreement, the execution, delivery and performance by each of the
Obligors of this Amendment, the New Note and each of the other Note
Documents, as amended hereby, to which it is or is to be a party and the
consummation of the transactions contemplated hereby do not and will not
(i) contravene such Obligor's charter or bylaws (or equivalent
organizational documents), (ii) violate any law, statute, rule or
regulation, including without limitation the Communications Act, FCC
Rules and those relating to copyright, or any order, writ, judgment,
injunction, decree, determination or award in any manner that, either
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect, (iii) conflict with or result in the breach of,
or constitute a default under, any contract, loan agreement, indenture,
including, without limitation, the Senior Note Indenture, mortgage, deed
of trust, lease or other instrument binding on or affecting any Obligor,
any of its Subsidiaries, CS Wireless, TelQuest, or any of their
properties in any manner that, either individually or in the aggregate,
could reasonably be expected to have a Material Adverse Effect, or (iv)
except for the Liens created under the Collateral Documents, result in or
require the creation or imposition of any Lien upon or with respect to
any of the properties or revenues of any Obligor or any of its
Subsidiaries.
(c) Except as set forth on Schedule 4.6 to the Note Purchase
Agreement, no order, consent, approval, license, validation or
authorization of, or registration, filing or declaration with, or any
exemption by any Governmental Authority or public body or authority or
any subdivision thereof or any other third party including any radio,
television or other license, Permit, certificate or approval granted or
issued by the FCC or any other Governmental Authority (including any MDS,
MMDS, ITFS, business radio, earth station or experimental licenses or
permits issued by the FCC) is required for the due execution, delivery,
recordation, filing or performance by any Obligor of this Amendment, the
New Note or any other Note Document, as amended hereby, to which it is or
is to be a party.
(d) This Amendment and the New Note have been duly executed and
delivered by each Obligor. This Amendment, the New Note and each of the
other Note Documents, as amended hereby, to which such Obligor is a party
are legal, valid and binding obligations of each Obligor, enforceable
against such Obligor in accordance with their respective terms.
(e) Except as disclosed on Schedule 5.7 to the Note Purchase
Agreement and the letter to the Company dated January 22, 1998 from
Conseco Capital Management, Inc., there are no actions, suits,
investigations or proceedings pending or, to the best knowledge of the
Obligors, threatened against or affecting the Company or any of its
Subsidiaries or any property or revenues of the Company or any of its
Subsidiaries in any court or before any arbitrator of any kind or before
or by any Governmental Authority that (i) either individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect
or (ii) purports to adversely affect this Amendment, the New Note, any of
the other Note Documents, as amended hereby or any of the transactions
contemplated hereby.
SECTION 4. USE OF PROCEEDS. Each Obligor agrees that it shall use
the proceeds of the New Note solely in accordance with the Approved Budget.
SECTION 5. REFERENCE TO AND EFFECT ON THE NOTE DOCUMENTS. (a)
Upon the effectiveness of this Amendment, on and after the date hereof each
reference in the Note Purchase Agreement to "this Agreement", "hereunder",
"hereof" or words of like import referring to the Note Purchase Agreement, and
each reference in the other Note Documents to "the Note Purchase Agreement",
"thereunder", "thereof" or words of like import referring to the Note Purchase
Agreement, shall mean and be a reference to the Note Purchase Agreement as
amended hereby.
(b) Upon the effectiveness of this Amendment, on and after the
date hereof each reference in each Note Document to "the Notes", "thereunder",
"thereof" or words of like import referring to the Notes, shall mean and be a
reference to the Notes which shall include the New Note.
(c) Except as specifically amended above, the Note Purchase
Agreement and the Notes, and all other Note Documents, are and shall continue
to be in full force and effect and are hereby in all respects ratified and
confirmed.
(d) The execution, delivery and effectiveness of this Amendment
shall not, except as expressly provided herein, operate as a waiver of any
right, power or remedy of the Purchaser under any of the Note Documents, nor,
except as expressly provided herein, constitute a waiver of any provision of
any of the Note Documents.
SECTION 6. COSTS, EXPENSES. The Obligors agree to pay on demand
all reasonable costs and expenses of the Purchaser in connection with the
preparation, execution, delivery and administration, modification and amendment
of this Amendment and the other instruments and documents to be delivered
hereunder (including, without limitation, the reasonable fees and expenses of
counsel for the Purchaser) in accordance with the terms of Section 14.1 of the
Note Purchase Agreement.
SECTION 7. EXECUTION IN COUNTERPARTS. This Amendment may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute but one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Amendment by telecopier shall be effective as delivery of a manually executed
counterpart of this Amendment.
SECTION 8. GOVERNING LAW. This Amendment shall be governed by,
and construed in accordance with, the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
AMI LICENSE CORP.
ATLANTIC MICROSYSTEMS, INC.
BALTIMORE CHOICE TELEVISION, INC.
BALTIMORE LICENSE, INC.
BUFFALO CHOICE TELEVISION, INC.
BUFFALO LICENSE, INC.
CAI DATA SYSTEMS, INC.
CAI SATELLITE COMMUNICATIONS, INC.
CAI WIRELESS INTERNET, INC.
COMMONWEALTH CHOICE TELEVISION, INC.
COMMONWEALTH LICENSE, INC.
CONNECTICUT CHOICE TELEVISION, INC.
CONNECTICUT LICENSE, INC.
EASTERN NEW ENGLAND TV, INC.
EASTERN NEW ENGLAND LICENSE, INC.
GREATER ALBANY WIRELESS SYSTEMS, INC.
GREATER ALBANY LICENSE, INC.
GREENSBORO CHOICE TELEVISION, INC.
GREENSBORO LICENSE, INC.
HAMPTON ROADS WIRELESS, INC.
HAMPTON ROADS LICENSE, INC.
LONG ISLAND CHOICE TELEVISION, INC.
LONG ISLAND LICENSE, INC.
MEMPHIS CHOICE TELEVISION, INC.
MEMPHIS LICENSE, INC.
MMDS SATELLITE VENTURES, INC.
NEW YORK CHOICE TELEVISION, INC.
NEW YORK LICENSE, INC.
ONONDAGA WIRELESS, INC.
PC LICENSE, INC.
PHILADELPHIA CHOICE TELEVISION, INC.
PITTSBURGH CHOICE TELEVISION, INC.
PITTSBURGH LICENSE, INC.
ROCHESTER CHOICE TELEVISION, INC.
ROCHESTER LICENSE, INC.
SPRINGFIELD CHOICE TELEVISION, INC.
SPRINGFIELD LICENSE, INC.
By: /S/
James P. Ashman
Executive Vice President
SYRACUSE CHOICE TELEVISION, INC.
SYRACUSE LICENSE, INC.
WASHINGTON CHOICE TELEVISION, INC.
WASHINGTON LICENSE, INC.
WINSTON-CHOICE LICENSE, INC.
WINSTON-SALEM CHOICE TELEVISION, INC.
By: /S/
James P. Ashman
Executive Vice President
CAI WIRELESS SYSTEMS, INC.
By: /S/
James P. Ashman
Executive Vice President and
Chief Financial Officer
CAI/AMI SPECTRUM MANAGEMENT, INC.
By: /S/
Timothy J. Santora
President
CAI CT HOLDINGS CORP.
COMMUNICATIONS TRANSPORT, INC.
CAI DEVELOPMENT, INC.
By: /S/
John J. Prisco
President
The foregoing is hereby
agreed to as of the
date first above written.
MERRILL LYNCH GLOBAL
ALLOCATION FUND, INC.
By__/S/_____________________________
Name: Bryan N. Ison
Title: Vice President
Address: Merrill Lynch Asset Management
800 Scudders Mill Road
Plainsboro, NJ 08536
Telecopier: (609) 282-6916
SCHEDULE TO EXHIBIT 4.10
The following Amendments 2 through 5 have been entered among the parties
set forth in Amendment No. 1 to the Note Purchase Agreement, through June 29,
1998, the date of filing of the Company's Annual Report on Form 10-K for the
fiscal year ended march 31, 1998, which amendments differ materially from
Amendment No. 1 in the manner described below (capitalized terms used herein
and in the Amendments and not otherwise defined herein and therein, shall have
the meanings ascribed to such terms in the Note Purchase Agreement to which the
Amendments relate):
(a) Amendment No.2 to the Note Purchase Agreement dated as of February 17,
1998. Amendment No. 2 increased the principal amount of 13% Senior Secured
Notes to $45,000,000; extended the Maturity Date of the 13% Senior Secured
Notes to June 1, 1998; and increased the Commitment Fee to $720,000.
(b) Amendment No. 3 to the Note Purchase Agreement dated as of June 1, 1998.
Amendment No. 3 extended the Maturity Date of the 13% Senior Secured Notes to
June 15, 1998 and increased the Commitment Fee to $730,000.
(c) Amendment No. 4 to the Note Purchase Agreement dated as of June 15, 1998.
Amendment No. 4 extended the Maturity Date of the 13% Senior Secured Notes to
June 24, 1998.
(d) Amendment No. 5 to the Note Purchase Agreement dated as of June 24, 1998.
Amendment No. 4 extended the Maturity Date to June 30, 1998.