Exhibit 10.7.2
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AMENDMENT NO. 1 TO
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AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
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This Amendment No. 1 (this "Amendment") to the Amended and Restated
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Stockholders Agreement (the "Stockholders Agreement"), dated as of December 4,
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2000, by and among IWO Holdings, Inc., a Delaware corporation ("Holdings"), and
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the stockholders of Holdings parties thereto (the "Stockholders"), is entered
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into as of April 2, 2001.
RECITALS
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WHEREAS, certain Stockholders (the "Selling Stockholders") desire to sell
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to TCW/Crescent Mezzanine and/or its affiliates (collectively, "TCW"), and TCW
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desires to purchase from the Selling Stockholders, an aggregate of 814,287
shares of Class B Common Stock, par value $0.01 per share, of Holdings (the
transactions contemplated by such sale and purchase individually and
collectively, the "TCW Purchase").
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WHEREAS, the Selling Stockholders have requested that the other
Stockholders and Holdings approve the amendment to the Stockholders Agreement
set forth in this Amendment on the terms and conditions set forth below.
WHEREAS, the undersigned Stockholders and Holdings are willing, on the
terms and subject to the conditions set forth herein, to approve the amendment
to the Stockholders Agreement set forth in this Amendment on the terms and
conditions set forth below.
AGREEMENT
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NOW THEREFORE, in consideration of the foregoing, and for other good and
valuable consideration, the parties hereto agree as follows:
Section 1. Majority in Interest.
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The words "majority in interest" as used in the Stockholders Agreement and
this Amendment with respect to the referenced securities shall mean a majority
of the total outstanding voting power of such referenced securities.
Section 2. Waiver of Section 4 of Stockholders Agreement.
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Pursuant to Section 11(d) of the Stockholders Agreement, the undersigned
Stockholders, holding a majority in interest of the Shares, and Holdings, hereby
waive, irrevocably and unconditionally, the application of the provisions of
Section 4 of the Stockholders Agreement to the transactions contemplated by the
TCW Purchase.
Section 3. New Stockholder.
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Effective as of the date hereof, TCW shall become a party to the
Stockholders Agreement upon TCW's execution of this Amendment, and Exhibit A to
the Stockholders Agreement shall be amended by adding thereto the list contained
in Appendix A attached hereto.
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Section 4. Third-Party Beneficiaries.
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(a) Section 11(j) of the Stockholders Agreement is hereby amended by
deleting such section in its entirety and replacing it with the following
paragraph:
"(j) Third-Party Beneficiaries. The parties hereto intend that the
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holders of the Class A Common Stock and the Class E Common Stock, and the
holders of the Class C Common Stock (other than Paribas) listed on Exhibit
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C hereto, shall be third-party beneficiaries of the rights and benefits
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granted under Section 5 and Section 8 hereof. Notwithstanding anything to
the contrary contained in Section 11(d) hereof, any Person that acquires
shares of Class C Common Stock (other than Paribas) (any such person, an
"Additional Beneficiary") may be added to the list contained in Exhibit C
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hereto upon the written consent of Holdings and a majority in interest of
the Shares. Upon such consent, the Additional Beneficiary shall be a
third-party beneficiary in accordance with this Section 11(j), and the list
contained in Exhibit C hereto shall be amended by adding to such list the
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name of the Additional Beneficiary and the number of shares of Class C
Common Stock held by the Additional Beneficiary as of the date of such
consent. The Chief Executive Officer or the Chief Financial Officer of
Holdings shall certify any amendments to Exhibit C hereto pursuant to this
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Section 11(j)."
(b) Section 1 of the Stockholders Agreement is hereby amended by adding
thereto the following definition:
""Additional Beneficiary" is defined in Section 11(j)."
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(c) The Stockholders Agreement is hereby amended by adding thereto as
Exhibit C the list contained in Appendix B attached hereto.
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Section 5. Joining Stockholders.
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(a) The Stockholders Agreement is hereby amended by adding thereto as
Section 11(k) the following paragraph:
"(k) Joinder Agreement. Notwithstanding anything to the contrary
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contained in Section 11(d) hereof, any Person that acquires Class B Shares
or Class D Shares and is not already a party to this Agreement may become a
party to this Agreement (any such Person, a "Joining Party") upon (i) such
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Joining Party executing a joinder agreement in the form attached hereto as
Exhibit D (each such agreement, a "Joinder Agreement") and (ii) Holdings
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and a majority in interest of the Shares consenting to such joinder in
writing. Upon such consent and the execution of a Joinder Agreement by the
Joining Party and the acceptance thereof by Holdings, the Joining Party
shall become a party to and a Stockholder under this Agreement, and the
list entitled "Joining Stockholder's
2
Name" contained in Exhibit A hereto shall be amended by adding to such list
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the name of the Joining Party, the class of common stock of Holdings
acquired and the number of shares of each such class held by the Joining
Party as of the date of such Joinder Agreement. The Chief Executive Officer
or the Chief Financial Officer of Holdings shall certify any amendments to
Exhibit A hereto pursuant to this Section 11(k)."
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(b) Section 1 of the Stockholders Agreement is hereby amended by adding
thereto the following definitions:
""Joinder Agreement" is defined in Section 11(k)."
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""Joining Party" is defined in Section 11(k)."
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(c) The Stockholders Agreement is hereby amended by adding thereto as
Exhibit D the form of joinder agreement attached as Appendix C hereto.
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Section 6. Lock-Up.
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Section 6 of the Stockholders Agreement is hereby amended by replacing the
words "the third anniversary date of this Agreement" with the words "December
20, 2002."
Section 7. Miscellaneous.
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(a) Counterparts. This Amendment may be executed in two or more
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counterparts, each of which will be deemed an original but which together will
constitute one and the same instrument. Delivery of an executed counterpart of
a signature page of this Amendment by facsimile transmission shall be as
effective as delivery of a manually executed counterpart of this Amendment.
(b) Headings; Sections. All headings and captions in this Amendment are
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for purposes of reference only and will not be construed to limit or affect the
substance of this Amendment. All references to Section in this Amendment refer
to Sections of this Amendment, unless otherwise expressly provided for.
3
IN WITNESS WHEREOF, the undersigned "existing" Stockholders and Holdings
have executed this Amendment as of the day and year first above written.
EXISTING STOCKHOLDERS:
BALLET LIMITED OUTRIGGER LIMITED
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CLASS D STOCKHOLDER CLASS D STOCKHOLDER
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Authorized Representative Title: Authorized Representative
DENARY LIMITED QUILL LIMITED
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CLASS D STOCKHOLDER CLASS D STOCKHOLDER
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Authorized Representative Title: Authorized Representative
GLEAM LIMITED RADIAL LIMITED
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CLASS D STOCKHOLDER CLASS D STOCKHOLDER
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ H. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ III
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Name: H. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ III
Title: Authorized Representative Title: Authorized Representative
HIGHLANDS LIMITED SHORELINE LIMITED
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CLASS D STOCKHOLDER CLASS D STOCKHOLDER
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇'▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇'▇▇▇▇
Title: Authorized Representative Title: Authorized Representative
NOBLE LIMITED ZINNIA LIMITED
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CLASS D STOCKHOLDER CLASS D STOCKHOLDER
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Authorized Representative Title: Authorized Representative
EXISTING STOCKHOLDERS:
INVESTCORP INVESTMENT EQUITY
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LIMITED
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CLASS D STOCKHOLDER
By: /s/ Sydney ▇. ▇▇▇▇▇▇▇
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Name: The Director Ltd.
Title: Director
EXISTING STOCKHOLDERS:
INVESTCORP IWO LIMITED PARTNERSHIP
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CLASS B STOCKHOLDER
By: /s/ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
Title: Director
EXISTING STOCKHOLDERS:
ODYSSEY COINVESTORS, LLC ODYSSEY INVESTMENT PARTNERS FUND, LP
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CLASS B STOCKHOLDER CLASS B STOCKHOLDER
By: Odyssey Capital Partners, By: Odyssey Investment Partners, LLC, as
LLC, as Managing Member General Partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Managing Principal Title: Managing Principal
EXISTING STOCKHOLDERS:
CHAMPLAIN PCS INC.
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CLASS B STOCKHOLDER
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Class B Stockholder
EXISTING STOCKHOLDERS:
FINGER LAKES TECHNOLOGIES
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GROUP INC.
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CLASS B STOCKHOLDER
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
Class B Stockholder Class B Stockholder
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ --------------------
-------------------- ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Class B Stockholder
Class B Stockholder
EXISTING STOCKHOLDERS:
DRY BROOK HOLDINGS LLC MTC NORTH, INC.
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CLASS B STOCKHOLDER CLASS B STOCKHOLDER
By:
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Manager Title: Treasurer
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------- _________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Class B Stockholder Class B Stockholder
_________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Class B Stockholder
EXISTING STOCKHOLDERS:
CERBERUS INVESTMENTS ▇.▇. ▇▇▇▇▇▇▇▇ INVESTMENTS OF TEXAS L.P.
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CLASS B STOCKHOLDER CLASS B STOCKHOLDER
By: ▇▇▇▇▇▇▇ ▇▇▇▇ By: ▇▇▇▇▇▇▇ ▇▇▇▇
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: General Partner Title:
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇
Class B Stockholder
EXISTING STOCKHOLDERS:
CEDAR FAMILIA LLC
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CLASS B STOCKHOLDER
By:
By: /s/ ▇.▇. ▇▇▇▇ III
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Name: ▇.▇. ▇▇▇▇ III
Title: Manager
/s/ ▇.▇. ▇▇▇▇ III
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▇.▇. ▇▇▇▇ III
Class B Stockholder
HOLDINGS:
IWO HOLDINGS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Executive Officer
IN WITNESS WHEREOF, the undersigned "new" Stockholder has executed this
Amendment as of the day and year first above written.
NEW STOCKHOLDER:
TCW/CRESCENT MEZZANINE PARTNERS II, L.P.
TCW/CRESCENT MEZZANINE TRUST II
By: TCW/Crescent Mezzanine II, L.P.
its general partner or managing owner
By: TCW/Crescent Mezzanine, L.L.C.
its general partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
Address for Notices:
IN WITNESS WHEREOF, the undersigned "new" Stockholder has executed this
Amendment as of the day and year first above written.
NEW STOCKHOLDER:
TCW LEVERAGED INCOME TRUST, L.P.
By: TCW Advisers (Bermuda), Ltd.
as its General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
By: TCW Investment Management Company
as Investment Adviser
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
Address for Notices:
IN WITNESS WHEREOF, the undersigned "new" Stockholder has executed this
Amendment as of the day and year first above written.
NEW STOCKHOLDER:
TCW LEVERAGED INCOME TRUST II, L.P.
By: TCW (▇▇▇▇ ▇▇), L.P.
as its General Partner
By: TCW Advisers (Bermuda), Ltd.
its General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
By: TCW Investment Management Company
as Investment Adviser
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
Address for Notices:
IN WITNESS WHEREOF, the undersigned "new" Stockholder has executed this
Amendment as of the day and year first above written.
NEW STOCKHOLDER:
TCW LEVERAGED INCOME TRUST IV, L.P.
By: TCW Asset Management Company
As its Investment Adviser
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
By: TCW (▇▇▇▇ ▇▇), L.L.C.
as General Partner
By: TCW Asset Management Company
As its Managing Member
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
Address for Notices:
Appendix A
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Exhibit A
Class of Common
Joining Stockholder's Name Stock Acquired Shares Owned
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TCW/Crescent Mezzanine Partners II, L.P............... Class B 524,335
TCW/Crescent Mezzanine Trust II....................... Class B 127,094
TCW Leveraged Income Trust, L.P....................... Class B 53,743
TCW Leveraged Income Trust II, L.P.................... Class B 53,743
TCW Leveraged Income Trust IV, L.P.................... Class B 55,372
Appendix B
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EXHIBIT C
Class C Stockholder's Name Shares Owned
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Investcorp IWO Limited Partnership....................... 2,910,143.0370
Appendix C
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EXHIBIT D
[form of joinder agreement]
JOINDER AGREEMENT, dated as of _______________ (this "Joinder Agreement"),
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to the Amended and Restated Stockholders Agreement, dated as of December 4,
2000, as amended by Amendment No. 1, dated as of April 2, 2001, and as further
amended or supplemented from time to time (the "Stockholders Agreement"), by and
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among IWO Holdings, Inc., a Delaware corporation ("Holdings"), and the
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stockholders of Holdings parties thereto (the "Stockholders").
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The undersigned (the "Joining Party") hereby agrees to become a party to
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and to succeed to all of the rights and obligations of a "Stockholder" under the
Stockholders Agreement as contemplated by Section 11(k) of the Stockholders
Agreement, and the Joining Party shall be deemed a "Stockholder" as such term is
defined in the Stockholders Agreement.
This Joinder Agreement will be construed both as to validity and
performance in accordance with, and governed by, the laws of the State of New
York applicable to agreements to be performed in New York, without regard to
principles of conflict of laws.
This Joinder Agreement may be executed in any number of separate
counterparts and all of said counterparts taken together shall be deemed to
constitute one and the same instrument. Signatures transmitted by facsimile
shall be binding as evidence of the Joining Party's agreement to be bound by the
terms of the Stockholders Agreement and Holdings' acceptance thereof.
IN WITNESS WHEREOF, the Joining Party has executed this Joinder Agreement
to become a party to the Stockholders Agreement as of the date first written
above.
JOINING PARTY:
[COMPANY NAME IF APPLICABLE]
[By:] _________________________
Name:
[Title:]
Accepted:
IWO HOLDINGS, INC.
By: _________________________
Name:
Title: