Exhibit 10.7
AMENDMENT TO
AGREEMENT OF LIMITED PARTNERSHIP
OF
XXX COMMUNICATIONS PCS, L.P.
This AMENDMENT TO AGREEMENT OF LIMITED PARTNERSHIP is entered into as of
the 23rd day of November 1998, by and between Cox Pioneer Partnership, a general
partnership ("CPP"), Sprint Spectrum Holding Company, L.P. (formerly known as
MajorCo, L.P.), a Delaware limited partnership ("Holdings"), and Sprint
Corporation, a Kansas corporation ("Sprint"). RECITALS
A. CPP and Holdings entered into an Agreement of Limited Partnership of Xxx
Communications PCS, L.P., dated as of December 31, 1996 (the "Partnership
Agreement").
B. On February 3, 1998, CPP exercised its right pursuant to Section
13.6(a)(i) of the Partnership Agreement (as in effect prior to this Amendment)
to require that Holdings purchase a portion of its Interest, representing a
Percentage Interest of 10.2%, and Holdings acquired such Interest on June 8,
1998.
C. The Holdings Partners and certain other Persons have entered into a
Restructuring and Merger Agreement, dated as of May 26, 1998, which provides,
among other things, (i) for the consummation of transactions that will result in
Holdings becoming a wholly-owned indirect subsidiary of Sprint and (ii) that the
Partnership Agreement will be amended as provided in this Amendment upon the
consummation of such transactions.
D. In connection with the closing under the Restructuring and Merger
Agreement, the parties to this Amendment desire to amend the Partnership
Agreement as provided in this Amendment.
AGREEMENTS
NOW, THEREFORE, in consideration of the foregoing recitals and the
covenants and agreements contained in this Amendment, the parties to this
Amendment agree as follows:
SECTION 1. DEFINITIONS
1.1 Definitions.
The following capitalized words and phrases used in this Amendment have the
following meanings:
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"Amendment" means this Amendment to Agreement of Limited Partnership, as
amended from time to time.
"Partnership Agreement" means the Agreement of Limited Partnership of Xxx
Communications PCS, L.P., dated as of December 31, 1996.
1.2 Terms Defined in the Partnership Agreement.
Capitalized terms used in this Amendment and not defined in this Amendment
shall have the meanings assigned to them in the Partnership Agreement.
1.3 Terms Generally.
The definitions in Section 1.1 and elsewhere in this Amendment shall apply
equally to both the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include," "includes" and "including" shall
be deemed to be followed by the phrase "without limitation." The words "herein,"
"hereof" and "hereunder" and words of similar import refer to this Amendment in
its entirety and not to any part hereof unless the context shall otherwise
require. The rules of construction set forth in the Partnership Agreement shall
apply to this Amendment.
SECTION 2. AMENDMENTS TO PARTNERSHIP
AGREEMENT
2.1 Amendment to Put and Call Rights.
Section 13.6 of the Partnership Agreement is hereby amended to read in its
entirety as follows:
13.6 Put and Call Rights.
(a) Put Rights. Subject to Section 13.6(d), CPP shall have the right to
require Holdings (or, in the event of a Reorganization, Sprint) to acquire all
or part of CPP's Interest, for the consideration and on the other terms
specified in this Section 13.6, in accordance with the following provisions:
(i) CPP may elect, by written notice delivered to Holdings during the
period beginning on the later of (A) December 14, 1998 or (B) the date the
determination is made pursuant to Section 13.6(g) of the Net Equity of
CPP's Interest as of December 14, 1998, and ending ninety days after such
later date, to require that Holdings (or, in the event of a Reorganization,
Sprint) acquire either (x) up to that amount of CPP's Interest representing
a Percentage Interest equal to 10.2% or (y) all of CPP's Interest.
(ii) CPP may elect, by written notice delivered to Holdings during the
period beginning on the later of (A) December 14, 1999 or (B) the date the
determination
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is made pursuant to Section 13.6(g) of the Net Equity of CPP's
Interest as of December 14, 1999, and ending ninety days after such later
date, to require that Holdings (or, in the event of a Reorganization,
Sprint) acquire either (x) up to that amount of CPP's Interest representing
a Percentage Interest equal to 10.2% or (y) all of CPP's Interest.
(iii) CPP may elect, by written notice delivered to Holdings during
the period beginning on the later of (A) December 14, 2000 or (B) the date
the determination is made pursuant to Section 13.6(g) of the Net Equity of
CPP's Interest as of December 14, 2000, and ending ninety days after such
later date, to require that Holdings (or, in the event of a Reorganization,
Sprint) acquire up to that amount of CPP's Interest representing a
Percentage Interest equal to 10.2%.
(iv) CPP may elect, by written notice delivered to Holdings during the
period beginning on the later of (A) December 14, 2001 or (B) the date the
determination is made pursuant to Section 13.6(g) of the Net Equity of
CPP's Interest as of December 14, 2001, and ending on the later of (A)
ninety days after such later date or (B) thirty days after CPP's receipt of
a notice from Holdings pursuant to Section 13.6(b)(i) with respect to less
than all of CPP's Interest, to require that Holdings (or, in the event of a
Reorganization, Sprint) acquire up to all of CPP's Interest.
(v) CPP may elect, by written notice delivered to Holdings during the
period beginning on the later of (A) December 14, 2002 or (B) the date the
determination is made pursuant to Section 13.6(g) of the Net Equity of
CPP's Interest as of December 14, 2002, and ending on the later of (A)
ninety days after such later date or (B) thirty days after CPP's receipt of
a notice from Holdings pursuant to Section 13.6(b)(ii) with respect to less
than all of CPP's Interest, to require that Holdings (or, in the event of a
Reorganization, Sprint) acquire up to all of CPP's Interest.
(vi) CPP may elect, by written notice delivered to Holdings during the
period beginning on the later of (A) December 14, 2003 or (B) the date the
determination is made pursuant to Section 13.6(g) of the Net Equity of
CPP's Interest as of December 14, 2003, and ending on the later of (A)
ninety days after such later date or (B) thirty days after CPP's receipt of
a notice from Holdings pursuant to Section 13.6(b)(iii) with respect to
less than all of CPP's Interest, to require that Holdings (or, in the event
of a Reorganization, Sprint) acquire up to all of CPP's Interest.
(vii) CPP may elect, by written notice delivered to Holdings during
the period beginning on the later of (A) December 14, 2004 or (B) the date
the determination is made pursuant to Section 13.6(g) of the Net Equity of
CPP's Interest as of December 14, 2004, and ending on the later of (A)
ninety days after such later date or (B) thirty days after CPP's receipt of
a notice from Holdings pursuant to Section 13.6(b)(iv) with respect to less
than all of CPP's Interest, to require that Holdings (or, in the event of a
Reorganization, Sprint) acquire up to all of CPP's Interest.
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(viii) CPP may elect, by written notice delivered to Holdings during
the period beginning on the later of (A) December 14, 2005 or (B) the date
the determination is made pursuant to Section 13.6(g) of the Net Equity of
CPP's Interest as of December 14, 2005, and ending on the later of (A)
ninety days after such later date or (B) thirty days after CPP's receipt of
a notice from Holdings pursuant to Section 13.6(b)(v) with respect to less
than all of CPP's Interest, to require that Holdings (or, in the event of a
Reorganization, Sprint) acquire up to all of CPP's Interest.
(b) Call Rights. Subject to Section 13.6(d), Holdings shall have the right
to require that CPP (or, in the event of a Reorganization, the direct or
indirect owners of CPP) Transfer to Holdings (or, in the event of a
Reorganization, Sprint) all or part of CPP's Interest, for the consideration and
on the other terms specified in this Section 13.6, in accordance with the
following provisions:
(i) Holdings may elect, by written notice delivered to CPP during the
period beginning on the later of (A) December 14, 2001 or (B) the date the
determination is made pursuant to Section 13.6(g) of the Net Equity of
CPP's Interest as of December 14, 2001, and ending on the later of (A)
ninety days after such later date or (B) thirty days after Holdings's
receipt of a notice from CPP pursuant to Section 13.6(a)(iv) with respect
to less than all of CPP's Interest, to require that CPP (or, in the event
of a Reorganization, the direct or indirect owners of CPP) Transfer to
Holdings (or, in the event of a Reorganization, Sprint) up to all of CPP's
Interest.
(ii) Holdings may elect, by written notice delivered to CPP during the
period beginning on the later of (A) December 14, 2002 or (B) the date the
determination is made pursuant to Section 13.6(g) of the Net Equity of
CPP's Interest as of December 14, 2002, and ending on the later of (A)
ninety days after such later date or (B) thirty days after Holdings's
receipt of a notice from CPP pursuant to Section 13.6(a)(v) with respect to
less than all of CPP's Interest, to require that CPP (or, in the event of a
Reorganization, the direct or indirect owners of CPP) Transfer to Holdings
(or, in the event of a Reorganization, Sprint) up to all of CPP's Interest.
(iii) Holdings may elect, by written notice delivered to CPP during
the period beginning on the later of (A) December 14, 2003 or (B) the date
the determination is made pursuant to Section 13.6(g) of the Net Equity of
CPP's Interest as of December 14, 2003, and ending on the later of (A)
ninety days after such later date or (B) thirty days after Holdings's
receipt of a notice from CPP pursuant to Section 13.6(a)(vi) with respect
to less than all of CPP's Interest, to require that CPP (or, in the event
of a Reorganization, the direct or indirect owners of CPP) Transfer to
Holdings (or, in the event of a Reorganization, Sprint) up to all of CPP's
Interest.
(iv) Holdings may elect, by written notice delivered to CPP during the
period beginning on the later of (A) December 14, 2004 or (B) the date the
determination is made pursuant to Section 13.6(g) of the Net Equity of
CPP's Interest as of December 14, 2004, and ending on the later of (A)
ninety days after such later date or (B) thirty days after
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Holdings's receipt of a notice from CPP pursuant to Section
13.6(a)(vii) with respect to less than all of CPP's Interest, to require
that CPP (or, in the event of a Reorganization, the direct or indirect
owners of CPP) Transfer to Holdings (or, in the event of a Reorganization,
Sprint) up to all of CPP's Interest.
(v) Holdings may elect, by written notice delivered to CPP during the
period beginning on the later of (A) December 14, 2005 or (B) the date the
determination is made pursuant to Section 13.6(g) of the Net Equity of
CPP's Interest as of December 14, 2005, and ending on the later of (A)
ninety days after such later date or (B) thirty days after Holdings's
receipt of a notice from CPP pursuant to Section 13.6(a)(viii) with respect
to less than all of CPP's Interest, to require that CPP (or, in the event
of a Reorganization, the direct or indirect owners of CPP) Transfer to
Holdings (or, in the event of a Reorganization, Sprint) up to all of CPP's
Interest.
(c) Requirements as to Notice. Any notice pursuant to Section 13.6(a) or
Section 13.6(b) shall specify the amount of CPP's Interest that CPP elects to
require that Holdings (or, in the event of a Reorganization, Sprint) acquire or
that Holdings elects to require that CPP (or, in the event of a Reorganization,
the direct or indirect owners of CPP) Transfer, as applicable. Such amount shall
be stated in terms of the Percentage Interest represented by the Interest to be
Transferred and acquired.
(d) Limitations.
(i) CPP may not make an election pursuant to Section 13.6(a)(i) or
Section 13.6(a)(ii) to require the Transfer of all of CPP's Interest unless
CPP is eligible to elect, and so elects, to require that such Transfer be
effected through a Reorganization.
(ii) Neither CPP nor Holdings may make an election pursuant to Section
13.6(a) or Section 13.6(b) unless CPP or Holdings shall have elected to
commence the appraisal procedures required by this Section 13.6 pursuant to
Section 13.6(g)(i) at least sixty (60) days prior to the date on which the
applicable election pursuant to Section 13.6(a) or Section 13.6(b) could be
made if the Net Equity of CPP's Interest, as of such date, had been
determined.
(iii) CPP will not be entitled to make an election:
(A) pursuant to Section 13.6(a)(ii) with respect to a portion of
CPP's Interest representing a Percentage Interest equal to 10.2% or
less, unless CPP made an election pursuant to Section 13.6(a)(i) with
respect to a portion of CPP's Interest representing a Percentage
Interest equal to 10.2%; and
(B) pursuant to Section 13.6(a)(iii), unless CPP made an election
pursuant to each of Section 13.6(a)(i) and Section 13.6(a)(ii) with
respect to a portion of CPP's Interest representing a Percentage
Interest equal to 10.2%.
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(e) Consideration for Put or Call.
(i) The consideration for the Transfer of all or any part of any
Interest Transferred pursuant to this Section 13.6 shall be cash or shares
of Series 2 PCS Stock, determined as follows:
(A) If CPP elects pursuant to Section 13.6(a)(i), Section
13.6(a)(ii) or Section 13.6(a)(iii) to require the Transfer of up to
that amount of CPP's Interest representing a Percentage Interest equal
to 10.2%, then the consideration for the Transfer of all of the
Interest so Transferred shall be cash.
(B) If CPP elects pursuant to Section 13.6(a)(i) or Section
13.6(a)(ii) to require the Transfer of all of CPP's Interest, then the
consideration for the Transfer of all of CPP's Interest shall be
shares of Series 2 PCS Stock, to be issued in a Reorganization.
(C) If CPP elects pursuant to Section 13.6(a)(iv), Section
13.6(a)(v), Section 13.6(a)(vi), Section 13.6(a)(vii) or Section
13.6(a)(viii) to require the Transfer of all of CPP's Interest, or if
Holdings elects pursuant to Section 13.6(b) to require the Transfer of
all of CPP's Interest, then:
(1) if Holdings so elects, the consideration for the
Transfer of all of CPP's Interest shall be shares of Series 2 PCS
Stock, and
(2) if Holdings does not elect to require that the
consideration for the Transfer of all of CPP's Interest be shares
of Series 2 PCS Stock, then CPP may elect pursuant to this
Section 13.6(e)(i) whether the consideration for all or any part
of any Interest Transferred pursuant to this Section 13.6 shall
be cash or shares of Series 2 PCS Stock.
(D) In all other events, CPP may elect pursuant to this Section
13.6(e)(i) whether the consideration for all or any part of any
Interest Transferred pursuant to this Section 13.6 shall be cash or
shares of Series 2 PCS Stock.
(ii) If the consideration for any part of any Interest Transferred
pursuant to this Section 13.6 is shares of Series 2 PCS Stock:
(A) such shares, upon issuance, will be duly authorized, validly
issued, fully paid and nonassessable; and
(B) such shares of Series 2 PCS Stock will be freely tradeable
and transferable, subject only to restrictions imposed by applicable
securities laws, and will be "Registrable Securities" for purposes of
the Registration Rights Agreement entered into pursuant to the
Restructuring Agreement;
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(iii) In the event of a Transfer of an Interest pursuant to this
Section 13.6 that is not a Reorganization, if the consideration for any
part of such Interest is shares of Series 2 PCS Stock, the number of shares
of Series 2 PCS Stock to be issued in exchange for such part of such
Interest shall be such that the fair market value of such shares,
determined in accordance with Section 13.6(g), as of the date as of which
the Net Equity of CPP's Interest was determined for purposes of determining
the Purchase Price pursuant to Section 13.6(g), shall equal the Purchase
Price of such part of such Interest, determined in accordance with Section
13.6(g); and
(iv) In the event of a Reorganization, the number of shares of Series
2 PCS Stock to be issued in exchange for an Interest Transferred pursuant
to this Section 13.6 and any Partner Loans and any Special Interest owned,
directly or indirectly, by the Eligible Corporations that are parties to
the Reorganization shall be such that the fair market value of such shares,
determined in accordance with Section 13.6(g), as of the date as of which
the Net Equity of the Transferred Interest was determined for purposes of
determining the Purchase Price pursuant to Section 13.6(g), shall equal the
Purchase Price of the Transferred Interest, determined in accordance with
Section 13.6(g), plus the purchase price for any Partner Loans and any
Special Interest owned, directly or indirectly, by the Eligible
Corporations that are parties to the Reorganization, each determined in
accordance with Section 13.3.
(v) To the extent that the consideration for any part of any Interest
Transferred pursuant to this Section 13.6 is cash, such cash shall be in an
amount equal to the Purchase Price of such part of such Interest,
determined in accordance with Section 13.6(g).
(vi) Notwithstanding Section 13.3, in the event of a Reorganization,
neither Holdings nor Sprint shall be required to purchase directly from the
holder thereof any Partner Loans or any Special Interest owned, directly or
indirectly, by the Eligible Corporations that are parties to the
Reorganization, but Sprint shall acquire any such Partner Loans and any
such Special Interest indirectly by acquiring the Eligible Corporations
that are parties to the Reorganization, and the purchase price determined
under Section 13.3 with respect to any such Partner Loans or Special
Interest shall be taken into account as provided in Section 13.6(e)(iv).
Except as provided in the preceding sentence, in the event of a Transfer of
all or part of CPP's Interest pursuant to this Section 13.6, the transferee
will be obligated to purchase from CPP and its Affiliates all or part of
any Partner Loans or any Special Interest held directly or indirectly by
CPP or any Affiliate thereof, as provided in Section 13.3.
(f) Other Terms and Conditions of Transfer.
(i) In the event of the Transfer of all of CPP's Interest pursuant to
this Section 13.6, if (A) the consideration for all of such Interest is
shares of Series 2 PCS Stock and (B) all of CPP's Interest is owned,
directly or indirectly, by one or more Eligible Corporations (through their
ownership of all the outstanding equity interests in CPP or
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otherwise), then CPP may elect to require that Sprint acquire,
indirectly, the Interest to be Transferred, and any Partner Loans and any
Special Interest owned, directly or indirectly, by such Eligible
Corporations, through the acquisition by Sprint or one or more wholly-
owned subsidiaries of Sprint of all the outstanding capital stock in each
of such Eligible Corporations in a transaction intended to qualify as one
or more "reorganizations" within the meaning of Code Section 368(a) (such
acquisition, a "Reorganization"). To the extent possible consistent with
the foregoing provisions of this Section 13.6(f)(i), any Reorganization
shall be structured in a manner that will not result in a termination of
the Partnership within the meaning of Code Section 708.
(ii) Unless CPP and Holdings otherwise agree, the closing of any
Transfer of an Interest pursuant to this Section 13.6 shall be held at the
principal office of the Partnership at 10:00 a.m. (local time at the place
of closing) on the first Business Day on or after the thirtieth (30th) day
following the election by CPP or Holdings pursuant to Section 13.6(a) or
Section 13.6(b), subject to the provisions of Section 12.5 and Section
13.6(g)(iv).
(iii) At the closing, except in the case of a Reorganization, Holdings
shall pay to CPP, by cash or other immediately available funds, the
consideration for any Interest being Transferred, any Partner Loans, and
any Special Interest for which the consideration is to be paid in cash, and
Sprint shall issue to CPP shares of Series 2 PCS Stock in exchange for any
Interest being Transferred for which the consideration is to be paid in the
form of Series 2 PCS Stock.
(iv) At the closing, CPP shall have good title, free and clear of any
Liens (other than those created by this Agreement and those securing
financing obtained by the Partnership), to the Interest, Partner Loans and
Special Interest being acquired and, except in the case of a
Reorganization, shall transfer such title to Holdings.
(v) At the closing of a Reorganization, Cox Parent shall provide
Sprint with indemnities against any liabilities of any Eligible Corporation
that is a party to the Reorganization and any subsidiary thereof, including
CPP, that are not attributed to them from the Partnership (which
indemnities shall be commensurate to those provided pursuant to the
Restructuring Agreement by Cox Parent with respect to liabilities of Xxx
Communications Wireless, Inc. that are not attributable to Holdings or
PhillieCo, L.P.), and Sprint shall issue to the stockholders of the
Eligible Corporations that are parties to the Reorganization the stock of
which is acquired in the Reorganization shares of Series 2 PCS Stock in
exchange for the outstanding stock of such Eligible Corporations.
(vi) At the closing, Holdings, CPP, Sprint, and, in the event of a
Reorganization, the other parties to the Reorganization shall execute such
documents and instruments of conveyance as may be necessary or appropriate
to effectuate the transactions contemplated hereby, including, if
applicable, the Transfer of the Interest being Transferred and any Partner
Loans or Special Interest to Holdings, the assumption by Holdings of CPP's
obligations with respect to the portion of CPP's Interest Transferred to
Holdings, and, in the event of a Reorganization, the acquisition by Sprint
or one or more wholly-owned
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subsidiaries of Sprint of all the outstanding capital stock in each
Eligible Corporation that is a party to the Reorganization and the issuance
by Sprint to the stockholders of each such Eligible Corporation of shares
of Series 2 PCS Stock. Each of the Partnership, Holdings, CPP, Sprint, and,
in the event of a Reorganization, the other parties to the Reorganization
shall bear its own costs of such Transfer and closing, including attorneys'
fees and filing fees.
(g) Determination of Values.
(i) Commencement of Appraisals. Either Partner may elect to commence
the appraisal procedures necessary to determine the Net Equity of CPP's
Interest by sending written notice of its election to the other Partner,
which notice shall designate the First Appraiser. Within ten (10) Business
Days after its receipt of such notice, the other Partner shall send a
written notice to the electing Partner designating the Second Appraiser.
Each Partner shall bear the costs of the appraisal submitted by the
appraiser designated by such Partner. If a Third Appraiser is appointed,
the costs of the appraisal submitted by such Third Appraiser shall be borne
one-half by CPP and one-half by Holdings.
(ii) Net Equity of CPP's Interest. Net Equity of CPP's Interest for
purposes of any determination referred to in Section 13.6(a) or Section
13.6(b) shall be determined in accordance with Section 12.3 by the First
Appraiser and the Second Appraiser designated pursuant to Section
13.6(g)(i) (and, if applicable, by a Third Appraiser selected by such
appraisers); provided, however, that, if the Transfer of CPP's Interest is
structured as a Reorganization that does not result in a "step-up" in the
basis of the assets of the Partnership to their respective fair market
values (or produce an equivalent result from the standpoint of the Holdings
Partners under Section 704 of the Internal Revenue Code), the appraisers
shall adjust the Gross Appraised Value of the assets of the Partnership for
purposes of their appraisals to take into account the effect of the absence
of a step-up in basis on the price at which a willing seller would sell,
and a willing buyer would buy, such assets.
(iii) Fair Market Value of Stock. The fair market value as of any date
of each share of Series 2 PCS Stock to be issued in exchange for CPP's
Interest will be the average for the twenty full trading days preceding
such date of (A) the last reported sales prices, regular way, as reported
on the principal national securities exchange on which shares of Series 1
PCS Stock are listed or admitted for trading or (B) if shares of Series 1
PCS Stock are not listed or admitted for trading on any national securities
exchange, the last reported sales prices, regular way, as reported on the
Nasdaq National Market or, if shares of Series 1 PCS Stock are not listed
on the Nasdaq National Market, the average of the highest bid and lowest
asked prices on each such trading day as reported on the Nasdaq Stock
Market, or (C) if shares of Series 1 PCS Stock are not listed or admitted
to trading on any national securities exchange, the Nasdaq National Market
or the Nasdaq Stock Market, the average of the highest bid and lowest asked
prices on each such trading day in the domestic over-the-counter market as
reported by the National Quotation Bureau, Incorporated, or any similar
successor organization. For purposes of this Section 13.6(g)(iii), a
"trading day" means a day on which the principal national securities
exchange on which shares of Series 1 PCS Stock are listed or admitted to
trading, or the Nasdaq National Market or the Nasdaq
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Stock Market, as applicable, if shares of Series 1 PCS Stock are not listed
or admitted to trading on any national securities exchange, is open for the
transaction of business (unless such trading shall have been suspended for
the entire day) or, if shares of Series 1 PCS Stock are not listed or
admitted to trading on any national securities exchange, the Nasdaq
National Market or the Nasdaq Stock Market, any Business Day. For purposes
of determining the fair market value of a share of Series 2 PCS Stock, (i)
the applicable sales price or bid and asked prices of a share of Series 1
PCS Stock on any day prior to any "ex-dividend" date or any similar date
occurring prior to the closing of the exchange of shares of Series 2 PCS
Stock for CPP's Interest for any dividend or distribution (other than a
dividend or distribution contemplated by clause (ii)(B) of this sentence)
paid or to be paid with respect to a share of Series 1 PCS Stock shall be
reduced by the Fair Value (as defined in the Amended and Restated Articles
of Incorporation of Sprint, as in effect on the Closing Date (as defined in
the Restructuring Agreement)) of the per share amount of such dividend or
distribution and (ii) the applicable sales price or bid and asked prices of
a share of Series 1 PCS Stock on any day prior to (A) the effective date of
any subdivision (by stock split or otherwise) or combination (by reverse
stock split or otherwise) of outstanding shares of Series 1 PCS Stock
occurring prior to the closing of the exchange of shares of Series 2 PCS
Stock for CPP's Interest or (B) any "ex-dividend" date or any similar date
occurring prior to the closing of the exchange of shares of Series 2 PCS
Stock for CPP's Interest for any dividend or distribution with respect to
shares of Series 1 PCS Stock to be made in shares of Series 1 PCS Stock or
securities that are convertible, exchangeable, or exercisable for shares of
Series 1 PCS Stock shall be appropriately adjusted, as determined by the
Board of Directors of Sprint, to reflect such subdivision, combination,
dividend, or distribution. (iv) Re-Determination of Values. If the closing
of any Transfer of an Interest is to occur more than six months after the
date referred to in the applicable subparagraph of Section 13.6(a) or
Section 13.6(b) (for example, in the case of an election pursuant to
Section 13.6(a)(i), if the closing is to occur more than six months after
December 14, 1998) or any six-month anniversary thereof, the Net Equity of
the Interest to be Transferred shall be re-determined as of the six-month
anniversary of the date referred to in the applicable subparagraph of
Section 13.6(a) or Section 13.6(b) that immediately precedes the closing
date of such Transfer by the same First Appraiser and Second Appraiser
(and, if applicable, Third Appraiser) that determined Gross Appraised Value
as of the date referred to in the applicable subparagraph of Section
13.6(a) or Section 13.6(b). Any such re- determination shall be made in
accordance with the procedures specified above in this Section 13.6(g)
except that each of the First Appraiser and the Second Appraiser shall
submit its determination of Gross Appraised Value within fifteen (15) days
after such six-month anniversary and the Third Appraiser shall submit its
determination of Gross Appraised Value within fifteen (15) days after the
latest date on which either the First Appraiser or the Second Appraiser
submitted its determination of Gross Appraised Value. The closing date of
any Transfer of an Interest pursuant to this Section 13.6 shall be
postponed as required to permit Gross Appraised Value to be re-determined
pursuant to this Section 13.6(g)(iv).
(v) Purchase Price. The Purchase Price of any Transferred Interest
shall be the Net Equity of such Interest as determined pursuant to this
Section 13.6(g)
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immediately prior to the relevant election pursuant to Section 13.6(a) or
Section 13.6(b) or, if the closing date for the Transfer of such Interest
is more than six months after the date referred to in the applicable
subparagraph of Section 13.6(a) or Section 13.6(b) (for example, in the
case of an election pursuant to Section 13.6(a)(i), if the closing is to
occur more than six months after December 14, 1998), Net Equity as
re-determined pursuant to Section 13.6(g)(iv) as of the six-month
anniversary of the date referred to in the applicable subparagraph of
Section 13.6(a) or Section 13.6(b) that immediately precedes the closing
date for the Transfer of such Interest, adjusted in any case for any
Capital Contributions by and distributions to the Partners from the latest
date as of which Net Equity was determined through the closing date for the
Transfer of such Interest. The Purchase Price of any part of a Transferred
Interest shall be the Purchase Price for such Transferred Interest as
determined above allocated on the basis of the Percentage Interest
represented by such part of the Transferred Interest.
(h) Additional Defined Terms. The following capitalized words and
phrases used in this Section 13.6 have the following meanings:
(i) "Eligible Corporation" means a corporation that satisfies the
following criteria:
(A) such corporation shall not have engaged at any time
prior to the Reorganization in any business other than holding,
directly or indirectly, equity interests in the Partnership;
(B) all outstanding stock of such corporation shall have
been duly and validly issued, shall be fully paid and
nonassessable;
(C) there shall not exist any outstanding or authorized
options, warrants, purchase rights, subscription rights,
conversion rights, exchange rights, or other contracts or
commitments that could require such corporation to issue, sell,
or otherwise cause to become outstanding any capital stock;
(D) the corporation shall have no debt, liability,
commitment, or other obligation of any kind whatsoever, other
than those attributed to it, directly or indirectly, from the
Partnership or arising under the Partnership Agreement or any
agreement between such corporation and any other Person (either
an Eligible Corporation or a Subsidiary of such corporation or
another Eligible Corporation) all the outstanding equity
interests of which would be acquired by Sprint, directly or
indirectly, in a Reorganization involving such corporation;
(E) the corporation shall have no assets other than a direct
or indirect equity interest in the Partnership and contractual
rights arising under the Partnership Agreement and any agreement
between such corporation and any other Person (either an Eligible
Corporation or a Subsidiary of such corporation or another
Eligible
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Corporation) all the outstanding equity interests of which would
be acquired by Sprint, directly or indirectly, in a
Reorganization involving such corporation; and
(F) the corporation shall have no attributes that would have
an adverse effect on Sprint as the successor corporation in the
Reorganization (after giving effect to the indemnities of Cox
Parent pursuant to Section 13.6(f)(v)) or that would preclude an
acquisition of the corporation from qualifying as a
"reorganization" within the meaning of Code Section 368(a).
(ii) "Purchase Price" means, with respect to any Transfer of an
Interest pursuant to this Section 13.6, the amount specified in Section
13.6(g)(v) as the Purchase Price.
(iii) "Restructuring Agreement" means the Restructuring and Merger
Agreement, dated as of May 26, 1998, among Sprint, Tele-Communications,
Inc., Comcast Corporation, and Cox Parent, and certain subsidiaries of each
of them.
(iv) "Reorganization" is defined in Section 13.6(f)(i).
(v) "Series 1 PCS Stock" means the PCS Common Stock-Series 1, par
value $0.01 per share, of Sprint, as it exists on the Closing Date (as
defined in the Restructuring Agreement), and any securities of Sprint into
or for which such Series 1 Sprint PCS Group Common Stock may thereafter be
changed, converted or exchanged.
(vi) "Series 2 PCS Stock" means the PCS Common Stock-Series 2, par
value $0.01 per share, of Sprint, as it exists on the Closing Date (as
defined in the Restructuring Agreement), and any securities of Sprint into
or for which such Series 2 Sprint PCS Group Common Stock may thereafter be
changed, converted or exchanged.
(vii) "Sprint" means Sprint Corporation, a Kansas corporation, and any
successor (by merger, consolidation, Transfer or otherwise) to all or
substantially all of its business and assets.
2.2 Schedule 13.6 Eliminated.
The Partnership Agreement is amended by deleting Schedule 13.6 therefrom.
2.3 Miscellaneous Amendments.
(a) The definition of "Adverse Act" in Section 1.10 of the Partnership
Agreement is amended by deleting subparagraph (v) and subparagraph (viii)
thereof.
(b) The definition of "Affiliate" in Section 1.10 of the Partnership
Agreement is amended by deleting clause (ii) from the proviso thereto.
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(c) The Partnership Agreement is amended by deleting Schedule 5.1(d) in the
form attached to the Partnership Agreement and substituting therefor Schedule
5.1(d) in the form attached to this Amendment.
(d) The Partnership Agreement is amended by deleting Section 5.2(e).
(e) The Partnership Agreement is amended by deleting the last sentence of
Section 16.13.
2.4 Other Amendments.
Except as amended hereby, the Partnership Agreement shall remain unchanged
and in full force and effect. From and after the date of this amendment, each
reference in the Partnership Agreement to "this Agreement," "hereof,"
"hereunder," or words of like import, and all references to the Partnership
Agreement in any and all agreements, instruments, documents, and other writings
(other than in this Amendment or as otherwise expressly provided) shall be
deemed to mean the Partnership Agreement, as amended by this Amendment.
2.5 Pending Elections.
CPP's notice, dated October 13, 1998, pursuant to Section 13.6(g)(i) of the
Partnership Agreement (as in effect immediately prior to this Amendment) shall
constitute an election and notice pursuant to Section 13.6(g)(i) of the
Partnership Agreement as amended hereby for all purposes under Section 13.6 of
the Partnership Agreement as amended hereby. Holdings's notice, dated October
26, 1998, pursuant to Section 13.6(g)(i) of the Partnership Agreement (as in
effect immediately prior to this Amendment) shall constitute a notice pursuant
to Section 13.6(g)(i) of the Partnership Agreement as amended hereby for all
purposes under Section 13.6 of the Partnership Agreement as amended hereby.
SECTION 3. AGREEMENT OF SPRINT CORPORATION
By executing this Amendment, Sprint agrees to perform all agreements and
covenants and to take all actions specified as agreements, covenants and actions
of Sprint in Section 13.6 of the Partnership Agreement, as amended by this
Amendment, as and to the same extent as if the Partnership Agreement, as so
amended, were binding upon Sprint as a party thereto.
SECTION 4. MISCELLANEOUS
4.1 Binding Effect.
This Amendment shall be binding upon and inure to the benefit of the
parties hereto and their respective successors, transferees and assigns.
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4.2 Construction.
This Amendment shall be construed simply according to its fair meaning and
not strictly for or against any party.
4.3 Time.
Time is of the essence with respect to this Amendment.
4.4 Headings.
The section and other headings contained in this Amendment are for
reference purposes only and are not intended to describe, interpret, define or
limit the scope, extent or intent of this Amendment.
4.5 Severability.
Every provision of this Amendment is intended to be severable. If any term
or provision hereof is illegal, invalid or unenforceable for any reason
whatsoever, that term or provision will be enforced to the maximum extent
permissible so as to effect the intent of the parties, and such illegality,
invalidity or unenforceability shall not affect the validity or legality of the
remainder of this Amendment. If necessary to effect the intent of the parties,
the parties will negotiate in good faith to amend this Amendment to replace the
unenforceable language with enforceable language which as closely as possible
reflects such intent.
4.6 Further Action.
Each party, upon the reasonable request of any other party, agrees to
perform all further acts and execute, acknowledge and deliver any documents
which may be reasonably necessary, appropriate or desirable to carry out the
intent and purposes of this Amendment.
4.7 Governing Law.
The internal laws of the State of Delaware (without regard to principles of
conflict of law) shall govern the validity of this Amendment, the construction
of its terms and the interpretation of the rights and duties of the parties.
4.8 Counterpart Execution.
This Amendment may be executed in two or more counterparts with the same
effect as if all parties had signed the same document. All counterparts shall be
construed together and shall constitute one agreement.
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4.9 Specific Performance; Attorneys' Fees.
Each party agrees with each other parties that each other party would be
irreparably damaged if any of the provisions of this Amendment were not
performed in accordance with their specific terms and that monetary damages
would not provide an adequate remedy in such event. Accordingly, in addition to
any other remedy to which any non-breaching party may be entitled, at law or in
equity, such non-breaching party shall be entitled to injunctive relief to
prevent breaches of this Amendment and specifically to enforce the terms and
provisions hereof, and any breaching party shall reimburse any non-breaching
party for all costs and expenses reasonably incurred by such non- breaching
party in enforcing its rights under this Section 4.9. In the event of a breach
by any party that results in a lawsuit or other proceeding for any remedy
available under this Amendment, the prevailing party shall be entitled to
reimbursement from the other party of its reasonable attorneys' fees and
expenses.
4.10 Entire Agreement.
The provisions of this Amendment set forth the entire agreement and
understanding among the parties as to the subject matter hereof and supersede
all prior agreements, oral or written, and other communications among the
parties relating to the subject matter hereof. This Amendment cannot be amended,
supplemented or changed except by an agreement in writing that makes specific
reference to this Amendment and which is signed by the party against which
enforcement of any such amendment, supplement or change is sought.
[signatures follow on a separate page]
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IN WITNESS WHEREOF, the parties have entered into this Amendment to
Agreement of Limited Partnership of Xxx Communications PCS, L.P. as of the date
first above set forth.
COX PIONEER PARTNERSHIP
By Xxx Communications Pioneer, Inc., its
Managing General Partner
By: /s/Xxxxx X. Xxxxxxx
-----------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice president
SPRINT SPECTRUM HOLDING COMPANY, L.P.
By Sprint Enterprises, L.P., its General Partner
By US Telecom, Inc., its General Partner
By: /s/ Xxx X. Xxxxxx
-----------------------
Name: Xxx X. Xxxxxx
Title: Vice President
SPRINT CORPORATION
By: /s/ Xxx X. Xxxxxx
-----------------------
Name: Xxx X. Xxxxxx
Title: Vice President
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Pursuant to Section 16.13 of the Partnership Agreement, the following
Persons consent to the amendments to the Partnership Agreement set forth in the
foregoing Amendment.
Sprint Enterprises, L.P.
By US Telecom, Inc., its General Partner
By: /s/ Xxx X. Xxxxxx
-----------------------
Name: Xxx X. Xxxxxx
Title: Vice President
TCI Telephony Services, Inc.
By: /s/ Xxxx X. Xxxxxx
-----------------------
Name: Xxxx X. Xxxxxx
Title: President
Comcast Telephony Services
By Comcast Telephony Services, Inc., its
General Partner
By: /s/ Xxxxxx X. Block
-----------------------
Name: Xxxxxx X. Block
Title: Vice President
Cox Telephony Partnership
By Xxx Communications Wireless, Inc., its
General Partner
By: /s/Xxxxx X. Xxxxxxx
-----------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice president
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