Exhibit 10.26
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AGREEMENT AMONG THE PARTIES
THIS AGREEMENT AMONG THE PARTIES (the "Agreement"), dated as of June 30,
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1999, between TeleCorp PCS, Inc. (the "Corporation"), the Cash Equity Investors,
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Entergy Technology Holding Company ("Entergy"), AT&T Wireless PCS, Inc. ("AT&T
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Wireless"), TWR Cellular, Inc. (together with AT&T Wireless, "AT&T") and the
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other Stockholders of the Corporation. All capitalized terms not otherwise
defined herein shall have the meanings set forth in the Stockholders Agreement,
dated as of July 17, 1998, among the Corporation and the parties appearing on
the signature pages thereto (the "Stockholders Agreement").
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WHEREAS, the Cash Equity Investors and Entergy are all of the parties to
that certain Investor Stockholders Agreement of the Corporation, dated as of
July 17, 1998 (the "Investor Stockholders Agreement");
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WHEREAS, the parties hereto are all of the parties to the Stockholders
Agreement;
WHEREAS, the parties hereto are parties to that certain Securities Purchase
Agreement of the Corporation, dated as of July 17, 1998 (the "Securities
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Purchase Agreement", and, together with the Investor Stockholders Agreement and
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the Stockholders Agreement, the "TeleCorp Documents");
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WHEREAS, pursuant and subject to the terms of the TeleCorp Documents and
the Securities Purchase Agreement, dated as of June 15, 1999 (the "Entergy
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Securities Purchase Agreement") between Entergy and CB Capital Investors, L.P.
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("CBCI"), Entergy desires to sell (the "Entergy Sale") all of the following
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Entergy shares of the Corporation which are, or on the Closing Date (as defined
in the Entergy Securities Purchase Agreement) will be, owned by Entergy: (i)
Series C Preferred Stock, par value $0.01 per share, of the Corporation (the
"Series C Preferred Stock"); (ii) Class A Voting Common Stock, par value $0.01
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per share, of the Corporation (the "Class A Common Stock"); (iii) Class D Common
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Stock, par value $0.01 per share, of the Corporation (the "Class D Common
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Stock", and, together with the Class A Common Stock, the "Common Stock"; and
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(iv) capital stock of the Corporation issued to Entergy in connection with the
Mercury PCS transaction (collectively, with the Series C Preferred Stock and the
Common Stock, the "Securities"), owned by Entergy.
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WHEREAS, Entergy has delivered notice pursuant to the Investor Stockholders
Agreement of its intention to sell the Securities to each of the Cash Equity
Investors;
WHEREAS, AT&T wishes to participate with the Cash Equity Investors in the
purchase of the Securities;
WHEREAS, Telecorp Investment Corp. II, L.L.C. ("TIC II") wishes to purchase
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up to $1,670,000 aggregate principal amount of the Securities (the "TeleCorp
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Investment Securities");
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NOW, THEREFORE, in consideration of the premises and mutual covenants
contained in this Agreement, the parties agree as follows:
SECTION 1. Waiver and Release. The parties hereto waive all of the
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requirements of, and release and discharge Entergy from all of the restrictions
imposed upon it by, (a) the TeleCorp Documents (including, without limitation,
any unfunded commitment obligations of Entergy thereunder and any prohibitions
on the Transfer of the Securities) and (b) the Pledge Agreement, dated July 17,
1998 between the Corporation and Entergy, for purposes of effecting the Entergy
Sale in accordance with the terms and conditions of this Agreement and the
Entergy Securities Purchase Agreement.
SECTION 2. TeleCorp Investment Corporation. The parties hereto agree that
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TeleCorp Investment Corporation, L.L.C. ("TIC") shall be deemed as of the date
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hereof to be a Cash Equity Investor as such term is used in the TeleCorp
Documents and shall have all the rights and obligations of a Cash Equity
Investor under the TeleCorp Documents, including but not limited to, the right
to participate in the Entergy Sale.
SECTION 3. TIC II Waiver and Consent. With respect to the purchase of the
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TeleCorp Investment Securities by TIC II, the parties hereto agree to (a) waive
the provisions of Section 4.1 (c) of the Stockholders Agreement prohibiting the
Transfer of any shares of Common Stock Beneficially Owned by any Stockholder
prior to the third anniversary of the effective date of the Stockholders
Agreement, and (b) irrevocable consent to the sale of the TeleCorp Investment
Securities to TIC II.
SECTION 4. AT&T Purchase. With respect to the Entergy Sale, the Cash Equity
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Investors agree that AT&T shall have the right to purchase its pro rata share of
the Securities.
SECTION 5. Purchase of the Securities. (a) The parties hereto agree that CBCI
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shall purchase, and CBCI agrees to purchase, the Securities from Entergy, (b)
The parties listed on Schedule I hereto (each a "Purchaser" and together, the
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"Purchasers") agree to purchase from CBCI, and CBCI agrees to sell to each of
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the Purchasers (the "CBCI Transfer"), the amount of Securities, together with
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all unfunded commitment obligations arising under the TeleCorp Documents in
respect of such Securities, (the "CBCI Transfer Securities") set forth opposite
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each Purchaser's name on Schedule I hereto
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SECTION 6. CBCI Transfer Closing. On the closing date of the CBCI Transfer,
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CBCI will deliver to each Purchaser a stock power sufficient for the transfer to
each Purchaser of the:
i. certificates representing the aggregate amount of shares of Series C
Preferred Stock purchased by such Purchaser;
ii. certificates representing the aggregate amount of shares of Class A
Common Stock purchased by such Purchaser; and
iii. certificates representing the aggregate amount of shares of Class D
Common Stock purchased by such Purchaser;
each against delivery by each Purchaser of immediately available funds in the
amount of the purchase price therefor set forth on Schedule I hereto.
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SECTION 7. Unfunded Commitment Obligations Under the TeleCorp Documents. Each
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Purchaser hereby agrees to be bound by all representations, covenants and
agreements contained in the TeleCorp Documents as such representations,
covenants and agreements apply to the Securities and further agrees that each of
them is hereby assuming their pro rata share of the unfunded commitment
obligations of Entergy under the TeleCorp Documents, it being understood that
the obligation of each Purchaser with respect to such unfunded commitment
obligations constitutes an irrevocable and unconditional obligation, and shall
not be subject to counterclaim, set-off, deduction or defense, or to abatement,
suspension, deferment, diminution or reduction for any reason whatsoever, and
each of them further agrees to fulfill its obligations in respect of its share
of Entergy's unfunded commitment obligations regardless of any claims it may
have against any other Person (whether or not related to this Agreement) and
regardless of the existence or non-existence of any facts or circumstances
(whether or not such facts or circumstances existed on the date hereof or on the
closing date of the CBCI Transfer or were then known by it).
SECTION 8. No Restrictions on Transfer. The agreements set forth herein shall
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not be construed as an acknowledgment by the Cash Equity Investors of a
restriction on transfers of capital stock of the Corporation among the Cash
Equity Investors.
SECTION 9. Pledge Agreement. Each Purchaser hereby agrees to execute and
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deliver to the Corporation an Amended and Restated Pledge Agreement or Pledge
Agreement, as the case may be, in respect of the Securities purchased pursuant
to this Agreement in substantially the form delivered in connection with the
Puerto Rico Stock Purchase Agreement, dated May 25, 1999, among the Corporation
and the parties appearing on the signature pages thereto.
SECTION 10. Counterparts. This Agreement may be executed by the parties hereto
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in several counterparts, each of which shall be deemed to be an original and all
of which shall constitute together but one and the same agreement.
SECTION 11. Governing Law; Entire Agreement. This Agreement shall be deemed to
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be a contract made under and governed by the internal laws of the State of New
York. This Agreement constitutes the entire understanding among the parties
hereto with respect to the subject matter hereof and supersedes any prior
agreements, written or oral, with respect thereto.
IN WITNESS WHEREOF, Entergy and the Purchasers have executed this Agreement
as of the day and year first above written.
TELECORP PCS, INC.
By: /s/ Xxxxxx Xxxxxxxx
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Name: Xxxxxx Xxxxxxxx
Title: Executive Vice President and CFO
ENTERGY TECHNOLOGY HOLDING COMPANY
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
Title: President
CASH EQUITY INVESTORS:
CB CAPITAL INVESTORS, L.P.
By: CB Capital Investors, Inc.
Its general partner
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Vice President - CBCI
NORTHWOOD VENTURES LLC
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Managing Director
NORTHWOOD CAPITAL PARTNERS LLC
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Managing Director
ONE LIBERTY FUND III, L.P.
By: /s/ Xxxxxx X. XxXxxxxx, Xx.
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Name: Xxxxxx X. XxXxxxxx, Xx.
Title: General Partner
ONE LIBERTY FUND IV, L.P.
By: /s/ Xxxxxx X. XxXxxxxx, Xx.
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Name: Xxxxxx X. XxXxxxxx, Xx.
Title: General Partner
MEDIA/COMMUNICATIONS INVESTORS
LIMITED PARTNERSHIP
By: M/C Investors General
Partner - J. Inc., a general partner
By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
Title:
MEDIA/COMMUNICATIONS PARTNERS III LIMITED
PARTNERSHIP
By: M/C III L.L.C.
Its general partner
By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
Title:
EQUITY-LINKED INVESTORS II
By: XXXXXX X. XXXXX ASSOCIATES-II,
Its general partner
By: /s/ Xxxxx X. Xxxxx, Xx.
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Name: Xxxxx X. Xxxxx, Xx.
Title: Attorney-In-Fact
PRIVATE EQUITY INVESTORS III L.P.
By: XXXXXX X. XXXXX ASSOCIATES III,
LLC, Its general partner
By: /s/ Xxxxx X. Xxxxx, Xx.
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Name: Xxxxx X. Xxxxx, Xx.
Title: Attorney-In-Fact
XXXX COMMUNICATIONS PARTNERS, L.P.
By: HCP Investors, L.P.
Its general partner
BY: Xxxx Partners, LLC
Its general partner
By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
Title: Manager
HCP CAPITAL FUND, L.P.
BY: Xxxxx X. Xxxx & Co.
Its general partner
By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
Title: Chairman
TORONTO DOMINION INVESTMENTS INC.
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Vice President
WHITNEY EQUITY PARTNERS, L.P.
BY: X.X. Xxxxxxx Equity Partners, LLC
Its general partner
By: /s/ Xxxxxx X. X'Xxxxx
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Name: Xxxxxx X. X'Xxxxx
Title: Managing Partner
X.X. XXXXXXX III, L.P.
BY: X.X. Xxxxxxx Equity Partners III, LLC
Its general partner
By: /s/ Xxxxxx X. X'Xxxxx
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Name: Xxxxxx X. X'Xxxxx
Title: Managing Partner
WHITNEY STRATEGIC PARTNERS III, L.P.
BY: X.X. Xxxxxxx Equity Partners III, LLC
Its general partner
By: /s/ Xxxxxx X. X'Xxxxx
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Name: Xxxxxx X. X'Xxxxx
Title: Managing Partner
TELECORP INVESTMENT CORP., L.L.C.
By: /s/ Xxxxxx Xxxxxxxx
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Name: Xxxxxx Xxxxxxxx
Title: President
TELECORP INVESTMENT CORP. II, L.L.C.
By: /s/ Xxxxxx Xxxxxxxx
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Name: Xxxxxx Xxxxxxxx
Title: President
GILDE INTERNATIONAL B.V.
By: /s/ Xxxxxx X. XxXxxxxx, Xx.
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Name: Xxxxxx X. XxXxxxxx, Xx.
Title: Attorney-In-Fact
DIGITAL PCS, LLC
By: /s/ X.X. Xxxxxx, Xx.
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Name: X.X. Xxxxxx, Xx.
Title: V.P. of MSM, Inc., Manager
WIRELESS 2000, INC.
By:
Name:
Title:
AT&T WIRELESS PCS, INC.
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title:
TWR CELLULAR, INC.
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title:
MANAGEMENT STOCKHOLDERS
/s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx
/s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
SCHEDULE I
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PURCHASER, SECURITIES AND PURCHASE PRICE/1/
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Unfunded
Series C Class A Class D Commitment
Purchaser Preferred Stock Common Stock Common Stock Purchase Price Obligation
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One Liberty Fund IV, L.P. 449.27 428.40 9.90 213,831.00 235,439.00
Northwood Ventures LLC 277.19 264.31 6.11 131,929.00 145,261.00
Northwood Capital Partners LLC 55.69 53.10 1.23 26,506.00 29,184.00
Media/Communications Investors 140.99 134.44 3.11 67,104.00 73,886.00
Limited Partnership
Media/Communications Partners III 935.93 892.45 20.62 445,458.00 490,472.00
Limited Partnership
Private Equity Investors III, L.P. 2,587.98 2,467.78 56.98 1,213,754.00 1,356,226.00
Xxxx Communications Partners, L.P. 1,778.27 1,695.67 39.17 846,371.00 931,899.00
HCP Capital Fund, L.P. 162.70 155.15 3.58 77,437.00 85,263.00
Whitney Equity Partners, L.P. 485.24 462.70 10.69 230,951.00 254,289.00
X.X. Xxxxxxx III, L.P. 1,105.59 1,054.24 24.35 526,208.00 579,382.00
Whitney Strategic Partners III, L.P. 26.64 25.40 0.59 12,679.00 13,961.00
Telecorp Investment Corp. II, L.L.C. 1,670.00 1,592.44 36.78 794,840.00 875,160.00
A&T& Wireless PCS, Inc. 1,410.51 1,344.99 31.07 671,335.00 739,175.00
TWR Cellular, Inc. 1,660.07 1,582.96 36.57 790,113.00 869,957.00
Xxxxxx X. Xxxxx 40.29 38.42 0.89 19,176.00 21,114.00
Xxxxxx X. Xxxxxxxx 8.95 8.53 0.20 4,260.00 4,690.00
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Total 12,795.31 12,200.98 281.84 6,089,952.00 6,705,358.00
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/1/ Reflects pro rata allocation assuming the Cash Equity Investors and AT&T
own all of the capital stock of the Corporation.
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