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EXHIBIT 10.31
EXCHANGE RIGHTS ACQUISITION AND GRANT AGREEMENT
THIS EXCHANGE RIGHTS ACQUISITION AND GRANT AGREEMENT (this "Agreement")
is entered into and effective as of this 17th day of December, 1998, by and
among WESTERN PCS BTA I CORPORATION, a Delaware corporation ("Western BTA"),
WESTERN WIRELESS CORPORATION, a Washington corporation ("WWC"), XXXX INLET
TELECOMMUNICATIONS, INC., a Delaware corporation ("Xxxx Inlet"), and VoiceStream
Wireless Corporation, a Delaware corporation ("VoiceStream").
RECITALS
(i) Western BTA, WWC, and Xxxx Inlet are parties to that certain PCS
Block "C" Organization and Financing Agreement dated November 5, 1995, as
amended by amendments dated April 8, 1996 (the "First Amendment"), June 27, 1996
(the "Second Amendment"), and July 30, 1996 (the "Third Amendment") (together,
the "Organization and Financing Agreement"), whereby the parties thereto
specified certain terms with respect to the organization and financing of Xxxx
Inlet Western Wireless PV/SS PCS, L.P. (the "Limited Partnership") and operation
of various wireless telecommunications systems, and the terms of various
contracts for use among the parties thereto and others in connection with such
organization, financing, and operations. The other parties to the Organization
and Financing Agreement are: XXXX INLET PV/SS PCS PARTNERS, L.P., a Delaware
limited partnership ("Control Group"); SSPCS CORPORATION, a Delaware corporation
("SSPCS"); and PROVIDENCE MEDIA PARTNERS L.P., a Delaware limited partnership
("Providence").
(ii) Control Group and Western BTA are parties to that certain Xxxx
Inlet Western Wireless PV/SS PCS, L.P. Limited Partnership Agreement dated
November 5, 1996, as amended by the First Amendment, the Second Amendment, and
the Third Amendment (together, the "Limited Partnership Agreement"), whereby the
parties thereto formed the Limited Partnership to apply to the FCC for the right
to participate in the Auction and to bid and acquire Licenses, as such terms are
defined therein.
(iii) Pursuant to the Organization and Financing Agreement, each of Xxxx
Inlet, SSPCS and Providence is (a) defined to be a Control Group Partner with
Partnership Interests (as defined therein) in Control Group, and (b) is
therefore granted certain rights ("WWC Exchange Rights") to exchange its
ownership rights in its Partnership Interest in Control Group for shares of WWC
common stock in certain circumstances.
(iv) Xxxx Inlet desires to sell and WWC desires, in conjunction with
VoiceStream, to acquire for cancellation, the WWC Exchange Rights of Xxxx Inlet
for consideration consisting of cash from WWC and a grant of new exchange rights
by VoiceStream.
(v) The parties desire to set forth the full terms of their agreement
respecting the same in this written contract.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, the parties hereto hereby agree as follows:
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ARTICLE I
DEFINITIONS
ALL WORDS CAPITALIZED HEREIN AND NOT DEFINED SHALL HAVE THE MEANINGS
GIVEN THEM IN THE ORGANIZATION AND FINANCING AGREEMENT.
Otherwise, for purposes of this Agreement, the following terms have the
meanings set forth below.
"VoiceStream" means VoiceStream Wireless Corporation, a Delaware
corporation and its successors and assigns.
"VoiceStream Common Stock" means the common stock, $0.001 par value, of
VoiceStream.
"VoiceStream Organic Change" means any recapitalization, reorganization,
reclassification, spin-off, split-off, extraordinary dividend or distribution,
consolidation or merger with another Person of VoiceStream, or any successor(s)
thereto, or sale of all or substantially all, in any or a series of
transactions, of the assets or stock of VoiceStream, or any successor(s)
thereto, to another Person, or other transaction involving VoiceStream, or any
successor(s) thereto, which is effected in such a manner that holders of
VoiceStream Common Stock, or of stock or other interests in any of the
respective successors to VoiceStream as the case may be, are entitled to receive
(either directly or upon subsequent liquidation) stock, securities or assets or
other consideration with respect to or in exchange for such stock or interests.
ARTICLE II
PURCHASE OF WWC EXCHANGE RIGHTS
WWC and VoiceStream hereby purchase from Xxxx Inlet, and Xxxx Inlet
hereby sells to WWC and VoiceStream, all of Xxxx Inlet's right, title and
interest in and to the WWC Exchange Rights for the following consideration:
(a) the sum of Five Million Dollars ($5,000,000), payable in cash
simultaneously with the execution of this Agreement; and
(b) the grant to Xxxx Inlet of the rights ("VoiceStream Exchange
Rights") to exchange ownership rights in its Partnership Interest in Control
Group for Voice Stream Common Stock, which VoiceStream Exchange Rights are
hereby granted. The terms and conditions of the VoiceStream Exchange Rights are
set forth in Article III hereof.
ARTICLE III
VOICESTREAM EXCHANGE RIGHTS
3.1 Exchange Rights. The VoiceStream Exchange Rights shall be
exercisable (a "VoiceStream Exchange") by Xxxx Inlet only on the following terms
and only during the thirty (30) day exchange period beginning on April 27, 2002,
and ending at 5:00 p.m. pacific time on May 26, 2002, (the "Xxxx Inlet Exchange
Period") in accordance with the following:
(a) Xxxx Inlet may elect to exchange all, but not less than all,
of the ownership rights in its Partnership Interest in Control Group for fifty
(50) shares of VoiceStream Common Stock.
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(b) To cause a VoiceStream Exchange, Xxxx Inlet shall deliver an
irrevocable written notice of the same (an "Exchange Notice") to VoiceStream
during the Xxxx Inlet Exchange Period; provided that, if as of the end of the
Xxxx Inlet Exchange Period Xxxx Inlet has failed to so deliver said notice, the
VoiceStream Exchange Rights of Xxxx Inlet (pursuant to this Agreement) shall
then immediately terminate.
(c) The WWC Exchange Rights of Xxxx Inlet set forth in the
Organization and Financing Agreement are upon execution hereof deemed cancelled
and are null and void, and Xxxx Inlet shall have no further right or obligation
in respect of the Exchange Rights or any other part or provision of Article III
of the Organization and Financing Agreement as set forth therein, and the
parties agree that this Agreement shall supersede such Article III.
(d) Western BTA, WWC, VoiceStream and Xxxx Inlet agree to
structure, to the extent reasonably possible, the VoiceStream Exchange for Xxxx
Inlet in a way that is tax free to each of Xxxx Inlet and to Western BTA, WWC,
and VoiceStream and such structure may include a stock exchange that includes
the stock of a special purpose corporation holding the Partnership Interest of
Xxxx Inlet in the Control Group; provided, however, that in doing so there are
no negative tax or accounting attributes of such a VoiceStream Exchange that
adversely impact Western BTA, WWC, or VoiceStream to a greater extent than would
be experienced in a direct exchange for a Partnership Interest (other than the
receipt of a carry over basis due to the tax free nature of the transaction), as
determined in utmost good faith by Western BTA in its reasonable discretion. If
Xxxx Inlet desires such a tax free structure, it shall be a special purpose
corporation. A "special purpose corporation" shall mean a corporation formed for
the purpose of holding an interest in the Control Group.
(e) If Western BTA, WWC, or VoiceStream in connection with the
VoiceStream Exchange, directly acquires a Partnership Interest, Western BTA,
WWC, or VoiceStream, as the case may be, shall take all actions necessary to
satisfy the applicable requirements of Section 12.6 of the limited partnership
agreement of Control Group.
(f) Upon receipt of an Exchange Notice during the Exchange
Period, and if VoiceStream Common Stock is listed or admitted for trading on the
NASDAQ National Market System or the New York Stock Exchange, then Western BTA
and VoiceStream agree that VoiceStream shall issue to Xxxx Inlet, as soon as
reasonably practicable but in any event no later than sixty (60) days following
delivery of the Exchange Notice (the "Outside Delivery Date"), fifty (50) shares
of VoiceStream Common Stock provided that at the time of such issuance (i) such
shares will be duly authorized, validly issued, fully paid and non-assessable
and free and clear of all liens, claims and encumbrances or preemptive or
similar rights, (ii) such shares are delivered in compliance with Federal and
state securities laws, (iii) such shares are subject to an effective
registration statement under the Securities Act of 1933, as amended (the
"Securities Act"), covering the offer and sale of such shares by Xxxx Inlet (the
"Registration Statement") from time to time in negotiated transactions, in
market transactions or otherwise and (iv) such shares are registered or
qualified for offer of sale by Xxxx Inlet under the securities or blue sky laws
of such States as Xxxx Inlet shall reasonably request. VoiceStream covenants and
agrees that it shall (x) prepare and file with the Securities and Exchange
Commission such amendments as may be necessary to keep the Registration
Statement effective until the earlier of the date all of such shares have been
sold by Xxxx Inlet, the date all of such shares are freely tradable without
registration or restriction (under Rule 144(k) promulgated under the Securities
Act or otherwise), , but not before the expiration of the 90-day period referred
to in Section 4(3) of the Securities Act and Rule 174 promulgated thereunder,
(y) cause each such state securities or blue sky registration or qualification
to remain effective during the period the Registration Statement is required to
be kept effective hereunder, and (z) cause the shares covered by such
Registration Statement, by the date of the first sale by Xxxx Inlet thereunder,
to be listed or admitted for trading on each securities exchange (or, if
applicable, the
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NASDAQ national market system) on which VoiceStream Common Stock is then listed
or admitted for trading.
(g) In the event that VoiceStream Common Stock is not listed or
admitted for trading on the NASDAQ National Market System or the New York Stock
Exchange, then Article IV shall apply.
3.2 Increase or Combination of Common Stock.
At any time prior to the date VoiceStream Common Stock is issued to Xxxx
Inlet in accordance with this Agreement, if at any time VoiceStream (a) pays a
dividend or makes a distribution in shares of its capital stock or securities
convertible or exchangeable for shares of its capital stock, (b) issues by
reclassification, or (c) subdivides (by any stock split, recapitalization or
otherwise) one or more classes of its outstanding shares of VoiceStream Common
Stock into a greater number of shares, the number of shares of VoiceStream
Common Stock to be issued pursuant to Section 3.1 immediately prior to such
increase shall be adjusted proportionately, and if VoiceStream at any time
combines (by reverse stock split or otherwise) one or more classes of its
outstanding shares of VoiceStream Common Stock into a smaller number of shares,
the number of shares of VoiceStream Common Stock issuable to Xxxx Inlet on a
VoiceStream Exchange immediately prior to such combination shall be adjusted
proportionately to allow Xxxx Inlet the full benefit and effect of the increase
or combination as if the VoiceStream Exchange had occurred immediately prior to
the increase or combination, as the case may be.
3.3 Reorganization, Reclassification, Consolidation, Merger or Sale.
At any time prior to the date VoiceStream Common Stock is issued to Xxxx
Inlet in accordance with this Agreement, prior to the consummation of each
VoiceStream Organic Change, VoiceStream shall make appropriate provisions (in
form and substance reasonably satisfactory to Xxxx Inlet) to insure that Xxxx
Inlet thereafter shall have the right to exchange for and receive, in lieu of or
in addition to (as the case may be) the shares of VoiceStream Common Stock
immediately theretofore acquirable and receivable upon a VoiceStream Exchange,
such shares of stock, securities or assets or other consideration as Xxxx Inlet
would have received in connection with such VoiceStream Organic Change if Xxxx
Inlet had effected the VoiceStream Exchange immediately prior to such
VoiceStream Organic Change. In the event of each VoiceStream Organic Change,
VoiceStream shall also make appropriate provisions (in form and substance
reasonably satisfactory to Xxxx Inlet) to insure that Xxxx Inlet continues to
have the benefit of this Section 3.3 thereafter. VoiceStream shall not effect
any VoiceStream Organic Change unless prior to the consummation thereof, the
successor corporation (if other than VoiceStream) resulting from consolidation
or merger or the Person purchasing such stock or assets assumes by written
instrument (in form reasonably satisfactory to Xxxx Inlet) the obligation to
deliver to Xxxx Inlet such shares of stock, securities or assets or other
consideration as, in accordance with the foregoing provisions, Xxxx Inlet may be
entitled to acquire.
3.4 Recapture of Bidding Credits and Acceleration of FCC Loans. In the
event that a VoiceStream Exchange results in either (a) the recapture by the FCC
of any bidding credits or other discounts received by Applicant with respect to
the award of Licenses in connection with the Auction, or (b) the acceleration of
any obligation or debt owed to the FCC in connection with the Auction, the
Applicant solely shall be liable to the FCC for such amounts.
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ARTICLE IV
VOICESTREAM EXCHANGE RIGHTS IF
VOICESTREAM COMMON STOCK IS NOT LISTED
4.1 If VoiceStream Common Stock is Not Delivered in Accordance with
Section 3.1(f). If Western BTA and VoiceStream are unable pursuant to Section
3.1 above, upon a VoiceStream Exchange, to deliver, in accordance with Section
3.1(f), shares of VoiceStream Common Stock prior to the Outside Delivery Date,
WWC, Western BTA and VoiceStream jointly and severally agree that WWC shall
issue, prior to the Outside Delivery Date, in lieu of the VoiceStream Common
Stock, and Xxxx Inlet agrees to accept, in full satisfaction of the obligation
to deliver VoiceStream Common Stock: (i) 193,315 shares of WWC Class A Common
Stock, and (ii) a cash payment in the amount of One Million, Five Hundred
Thousand Dollars ($1,500,000). The shares of WWC Class A Common Stock to be
issued pursuant to this Section 4.1 shall be subject to the same requirements,
and WWC shall be bound by the same covenants, as those set forth in Section
3.1(f) hereof, substituting WWC for VoiceStream thereunder. It shall be a breach
of this Agreement by WWC, Western BTA and Voice Stream if WWC Class A Common
Stock is not listed or admitted for trading on the NASDAQ National Market System
or the New York Stock Exchange at the time of issuance hereunder to Xxxx Inlet,
or if such shares are not delivered to Xxxx Inlet in accordance with the
requirements of Section 3.1(f) (substituting WWC for VoiceStream thereunder)
prior to the Outside Delivery Date.
4.2 Increase or Combination of Common Stock. At any time prior to the
date VoiceStream Common Stock or WWC Class A Common Stock, as the case may be,
is issued to Xxxx Inlet in accordance with this Agreement, if at any time WWC
(a) pays a dividend or makes a distribution in shares of its capital stock or
securities convertible or exchangeable for shares of its capital stock, (b)
issues by reclassification, or (c) subdivides (by any stock split,
recapitalization or otherwise) one or more classes of its outstanding shares of
WWC Common Stock into a greater number of shares, the number of shares of WWC
Common Stock to be issued pursuant to Section 4.1 above immediately prior to
such increase shall be adjusted proportionately, and if WWC at any time combines
(by reverse stock split or otherwise) one or more classes of its outstanding
shares of WWC Common Stock into a smaller number of shares, the number of shares
of WWC Common Stock to be issued pursuant to Section 4.1 above immediately prior
to such combination shall be adjusted proportionately, in each case to allow to
Xxxx Inlet the full benefit and effect of the increase or combination as if the
Partnership Interest of Xxxx Inlet had been exchanged for WWC Common Stock
immediately prior to the increase or combination, as the case may be.
4.3 Reorganization, Reclassification, Consolidation, Merger or
Sale. At any time prior to the date VoiceStream Common Stock or WWC Class A
Common Stock, as the case may be, is issued to Xxxx Inlet in accordance with
this Agreement, prior to the consummation of each Organic Change, WWC shall make
appropriate provisions (in form and substance reasonably satisfactory to Xxxx
Inlet) to insure that Xxxx Inlet thereafter shall have the right to exchange for
and receive, in lieu of or in addition to (as the case may be) the shares of WWC
Common Stock immediately theretofore acquirable and receivable pursuant to
Section 4.1 above, such shares of stock, securities or assets or other
consideration as Xxxx Inlet would have received in connection with such Organic
Change if Xxxx Inlet had effected the VoiceStream Exchange immediately prior to
such Organic Change. In the event of each Organic Change, WWC shall also make
appropriate provisions (in form and substance reasonably satisfactory to Xxxx
Inlet) to insure that Xxxx Inlet will continue to have the benefit of this
Section 4.3 thereafter. WWC shall not effect any Organic Change unless prior to
the consummation thereof, the successor corporation (if other than WWC)
resulting from consolidation or merger or the Person purchasing such stock or
assets assumes by written instrument (in form reasonably satisfactory to Xxxx
Inlet) the obligation to deliver to Xxxx Inlet such shares of stock, securities
or assets or other consideration as, in accordance with the foregoing
provisions, Xxxx Inlet may be entitled to acquire.
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ARTICLE V
SHARING OF PROCEEDS OF SALE TRANSACTIONS
The parties acknowledge that Xxxx Inlet was under no obligation to
exercise the WWC Exchange Rights and agree that Xxxx Inlet is not hereunder
obligated to exercise the VoiceStream Exchange Rights. The parties further
acknowledge and agree that, as of this date, Xxxx Inlet has received a portion
of the value of the WWC Exchange Rights in cash pursuant to the transactions
described in Article II hereof, although it has not and will not exercise the
WWC Exchange Rights and may never exercise the VoiceStream Exchange Rights. In
light of the foregoing, the parties agree that if Xxxx Inlet fails to timely
exercise the VoiceStream Exchange Rights pursuant to Article III, then upon and
from the receipt by Xxxx Inlet of cash proceeds from a Sale Transaction (as
defined below), Xxxx Inlet shall immediately pay in cash to WWC the lesser of:
(a) Five Million Dollars ($5,000,000); or
(b) the amount of proceeds equal to the total amount of cash
distributions from the Limited Partnership and Control Group to
which Xxxx Inlet or any subsidiary, parent or Affiliate thereof
is entitled as a result of the Sale Transaction, provided that
in calculating such amount, no distributions of income or other
distributions relating to the ownership and operation of the
Limited Partnership's business, assets and/or FCC licenses shall
be included.
A "Sale Transaction" shall mean any sale, transfer, disposition or
conveyance (or series of related or unrelated sales, etc.), directly or
indirectly, by the Limited Partnership or any subsidiary, parent or Affiliate
thereof, of all or substantially all of its assets and the FCC licenses that
allow and comprise the wireless telecommunications systems directly or
indirectly owned by the Limited Partnership.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
6.1 WWC, VoiceStream and Western BTA jointly and severally represent and
warrant to and covenant with Xxxx Inlet as follows:
(a) VoiceStream is a corporation duly organized, validly existing and in
good standing under the laws of Delaware. VoiceStream and has all requisite
corporate power and authority and any necessary governmental approval to own,
lease and operate its properties and to carry on its business as now being
conducted or as proposed to be conducted following the Spin-Off (as defined in
subparagraph (e) below). VoiceStream is duly qualified or licensed and in good
standing to do business in each jurisdiction in which the character of the
property owned, leased or operated by it or the nature of the business conducted
by it makes such qualification or licensing necessary. VoiceStream has provided
to Xxxx Inlet accurate and complete copies of its Certificate of Incorporation
and Bylaws as currently in effect.
(b) As of the date hereof, the authorized capital stock of VoiceStream consists
of 50,000 shares of VoiceStream Common Stock, $0.001 par value, of which 12,484
shares are currently issued and outstanding, and 10,000 shares of VoiceStream
Preferred Stock, $0.001 par value, of which none is currently issued and
outstanding. WWC owns 10,000 shares of VoiceStream Common Stock and Xxxxxxxxxx
Telecommunications PCS (USA) Limited owns 2,484 shares of VoiceStream Common
Stock. No other capital stock of VoiceStream is authorized or issued. All issued
and outstanding shares of VoiceStream Common Stock are duly authorized, validly
issued, fully paid and non-assessable and free of preemptive or similar rights.
As of the date hereof, there are no outstanding rights, subscriptions,
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warrants, puts, calls, unsatisfied preemptive rights, options or other
agreements of any kind relating to any of the VoiceStream Common Stock, and
there is no authorized or outstanding security of any kind convertible into or
exchangeable for any such VoiceStream Common Stock.
(c) VoiceStream has made available to Xxxx Inlet true and complete
copies of its most recent audited financial statements and unaudited interim
financial statements (the "VoiceStream Historical Financial Statements"), copies
of which are attached hereto as Exhibit A. The VoiceStream Historical Financial
Statements have been prepared in accordance with generally accepted accounting
principles applied on a consistent basis (except as may be indicated therein or
in the notes thereto) and present fairly, in all material respects, the
consolidated financial position of VoiceStream as at the dates thereof and the
results of its operations and cash flows for the periods then ended subject, in
the case of the unaudited interim financial statements, to normal year-end audit
adjustments. Except as disclosed in writing to Xxxx Inlet, since December 31,
1997, VoiceStream has conducted and will conduct its business only in the
ordinary course and in a manner consistent with past practice and, since such
date, there has not been (i) any material adverse effect on the business,
assets, financial condition, liabilities or results of operations of
VoiceStream, (ii) any material damage or loss to any material asset or property
not covered by insurance, (iii) any change in accounting principles or
practices, (v) any revaluation of any material assets or liabilities other than
in the ordinary course of business or (vi) any entry by VoiceStream into any
commitment or transactions material to VoiceStream (other than commitments or
transactions entered into in the ordinary course of business).
(d) WWC currently is contemplating making a distribution of all of the
shares of VoiceStream stock owned by it to the holders of its Class A Common
Stock and Class B Common Stock (the "Spin-Off"), subject to approval of the
Board of Directors of WWC and other applicable approvals, and provided it
receives an acceptable ruling from the Internal Revenue Service of its request
dated September 28, 1998, as supplemented, relating to the Spin-Off. VoiceStream
currently owns, and at the time of the Spin-Off will own, materially all of the
assets, contracts, licenses and rights relating to the PCS business owned by WWC
and its subsidiaries and affiliates.
6.2 Xxxx Inlet, WWC, VoiceStream and Western BTA represent and warrant
to, and covenant with and among, each other as follows:
Each party has all requisite corporate power and authority to execute
and deliver this Agreement, to perform its obligations hereunder and to
consummate the transactions contemplated hereby. The execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby, have been duly and validly authorized by such party's Board
of Directors and no other corporate proceedings on the part of such party or its
stockholders are necessary to authorize the execution and delivery of this
Agreement or to consummate the transactions contemplated hereby. This Agreement
has been duly and validly executed and delivered by such party and constitutes
the legal, valid and binding agreement of such party, enforceable against it in
accordance with the terms of this Agreement. No consent, approval, waiver or
authorization of, notice to or declaration or filing with any governmental
entity or authority is required in connection with the execution, delivery or
performance by such party of this Agreement or the consummation by it of the
transactions contemplated hereby.
ARTICLE VII
MISCELLANEOUS
7.1 Entire Agreement; Amendment. This Agreement and the Organization and
Financing Agreement referenced herein embody the complete agreement and
understanding among the parties hereto with respect to the subject matter hereof
and supersede and preempt any prior understandings, agreements or
representations by or among the parties, written or oral, which may have related
to the
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subject matter hereof in any way. This Agreement may be amended only by an
instrument executed by each of the parties hereto.
7.2 Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns. Neither this Agreement nor any of the rights, interests or obligations
hereunder shall be assigned or delegated by any of the parties hereto without
the prior written consent of the other parties hereto.
7.3 Severability. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement; provided that the parties shall, in good faith, negotiate
fair market-based compensation to any party which loses rights hereunder
pursuant to such interpretation.
7.4 Savings Clause. Notwithstanding anything in this Agreement to the
contrary, if the possession or exercise of any right of the parties set forth in
this Agreement would cause the Partnership to violate any applicable laws,
including, without limitation, any FCC Rules, as in effect from time to time, or
result in an adverse regulatory action or ruling by the FCC, such right shall be
deemed not to exist; provided that the parties shall, in good faith, negotiate
fair market-based compensation to any party which loses any right hereunder
pursuant to such right being deemed not to exist.
7.5 Governing Law. All questions concerning the construction, validity
and interpretation of this Agreement and the exhibits and schedules hereto shall
be governed by the internal law, and not the law of conflicts, of Delaware.
7.6 Notices. All notices, demands or other communications to be
delivered under or by reason of the provisions of this Agreement shall be in
writing and shall be deemed to have been given (a) when delivered personally to
the recipient; (b) two business days after being sent to the recipient by
reputable express courier service (charges prepaid); (c) five business days
after being mailed to the recipient by certified or registered mail, return
receipt requested and postage prepaid; and (d) when acknowledged by the
recipient if given by facsimile transmission. Such notices, demands and other
communications shall be sent to each party at the respective addresses indicated
below:
If to Western BTA, WWC
or VoiceStream: 0000 000xx Xxxxxx XX
Xxxxxxxx, XX 00000
Attention: General Counsel
Facsimile: (000) 000-0000
With a copies in each case to: G. Xxxxx Xxxxxxxxx
Xxxxxxx Xxxxx & Xxxxx
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000-0000
Facsimile: (000) 000-0000
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If to Xxxx Inlet : Xxxx Inlet Telecommunications, Inc.
0000 "X" Xxxxxx
Xxxxxxxxx, Xxxxxx 00000
Attn: Xxxxx Xxxxxxxxxxxx
Facsimile: (000) 000-0000
With a copy in each case to: Xxxx X. Xxxxxxx, General Counsel
Xxxx Inlet Region, Inc.
0000 "X" Xxxxxx
Xxxxxxxxx, Xxxxxx 00000
Facsimile: (000) 000-0000
or to such other address or to the attention of such other person as the
recipient party has specified by prior written notice to the sending party.
7.7 Descriptive Headings. The descriptive headings of this Agreement are
inserted for convenience only and do not constitute a Section of this Agreement.
7.8 Counterparts. This Agreement may be executed simultaneously in two
or more counterparts, any one of which need not contain the signatures of more
than one party, but all such counterparts taken together shall constitute one
and the same Agreement.
7.9 Effectiveness of Organization and Financing Agreement, Limited
Partnership Agreement and Technical Services Agreement. Except as modified by
this Agreement, all respective provisions of the Organization and Financing
Agreement, the Limited Partnership Agreement and the Technical Services
Agreement are unchanged and remain in full force and effect and are ratified and
confirmed by the parties hereto.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first above written.
WESTERN PCS BTA I CORPORATION XXXX INLET TELECOMMUNICATIONS, INC.
By /s/ XXXXX XXXXXXXXX By /s/ XXXXX XXXXXXXXXXXX
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Its Senior Vice President Its Authorized Officer
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WESTERN WIRELESS CORPORATION VOICESTREAM WIRELESS CORPORATION
By /s/ XXXXX XXXXXXXXX By /s/ XXXXX XXXXXXXXX
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Its Senior Vice President Its Senior Vice President
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