1
EXHIBIT 10.40
SECOND AMENDMENT TO
PCS BLOCK "C" ORGANIZATION AND FINANCING AGREEMENT
AND
XXXX INLET WESTERN WIRELESS PV/SS PCS, L.P.
LIMITED PARTNERSHIP AGREEMENT
THIS SECOND AMENDMENT TO PCS BLOCK "C" ORGANIZATION AND FINANCING
AGREEMENT AND XXXX INLET WESTERN WIRELESS PV/SS PCS, L.P. LIMITED PARTNERSHIP
AGREEMENT (the "Amendment") is entered into as of this 27th day of June, 1996,
by and among WESTERN PCS BTA I CORPORATION, a Delaware corporation ("Western
BTA"), WESTERN WIRELESS CORPORATION, a Delaware corporation ("WWC"), XXXX INLET
PV/SS PCS PARTNERS, L.P., a Delaware limited partnership ("Control Group"), XXXX
INLET TELECOMMUNICATIONS, INC., a Delaware corporation ("Xxxx Inlet"), SSPCS
CORPORATION, a Delaware corporation ("SSPCS"), and PROVIDENCE MEDIA PARTNERS
L.P., a Delaware limited partnership ("Providence").
RECITALS
A. Western BTA, WWC, Control Group, Xxxx Inlet, SSPCS and Providence
are parties to that certain PCS Block "C" Organization and Financing Agreement
dated November 5, 1995, as amended by that certain First Amendment to PCS BLOCK
"C" Organization and Financing Agreement and Xxxx Inlet Western Wireless PV/SS
PCS, L.P. Limited Partnership Agreement (the "First Amendment") dated April 8,
1996 (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. and operation of the Systems, as
defined therein, and the terms of various contracts for use among the parties
thereto and others in connection with such organization, financing, and
operations.
B. 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 (together, the "Limited Partnership
Agreement"), whereby the parties thereto formed Xxxx Inlet Western Wireless
PV/SS PCS, L.P. 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.
C. The FCC currently intends to, and in the future from time to time
may, reauction Licenses for which the previous high bidder or licensee thereof
has defaulted.
D. The parties hereto desire to amend, pursuant to the terms and
conditions of this Amendment, the Organization and Financing Agreement and the
Limited Partnership Agreement to clarify that such agreements also apply to any
such subsequent Auctions to which the parties desire to participate.
2
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, the parties hereto hereby agree as follows:
1. The definition of "Auction" in Article I of the Organization and
Financing Partnership Agreement hereby is amended and restated as follows:
"Auction" means the auction conducted by the FCC described in
the Recitals to this Agreement, including any future or subsequent
Block C PCS auctions conducted by the FCC.
2. The definition of "Auction" in Article I of the Limited Partnership
Agreement hereby is amended and restated as follows:
"Auction" means the auction conducted by the FCC described in
the Recitals to this Agreement, including any future or subsequent
Block C PCS auctions conducted by the FCC.
3. Section 3.1 to the Limited Partnership Agreement hereby is amended
and restated as follows:
3.1 Required Capital Contributions. The required capital
contribution ("Required Capital Contribution Amount") to the capital of
the Partnership shall be 110% of the Required Down Payment for all
Licenses awarded to the Partnership at the Auction. Each Partner's
share of the Required Capital Contribution Amount shall be the Required
Capital Contribution Amount multiplied by that Partner's respective
Required Capital Contribution Amount Percentage, as set forth on
Schedule I. The amount of each contribution of each Partner shall be
recorded by the General Partner as a contribution to the capital of the
Partnership. Notwithstanding anything to the contrary, in no event
shall the Required Capital Contribution Amount for each Partner exceed
the amounts set forth on Schedule I.
4. Schedule I to the Limited Partnership Agreement hereby is amended
and restated in accordance with Schedule A attached hereto.
5. Except as modified by this Amendment, all respective provisions of
the Organization and Financing Agreement and the Limited Partnership Agreement
are unchanged and remain in full force and effect and are ratified and confirmed
by the parties hereto.
6. This Amendment may be signed in several counterparts, each of which
shall be deemed an original and all such counterparts together shall constitute
one and the same instrument.
-2-
3
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 X Xxxxxxxxx By /s/ Xxxxx Xxxxxxx
------------------------------ -------------------------------
Its Sr. Vice President Its Vice President
------------------------- --------------------------
WESTERN WIRELESS CORPORATION SSPCS CORPORATION
By /s/ Xxxxx X Xxxxxxxxx By /s/ Xxxxx Xxxxxxxxxxx
------------------------------ --------------------------------
Its Sr. Vice President Its President
------------------------------ ---------------------------
XXXX INLET PV/SS PCS PARTNERS, L.P. PROVIDENCE MEDIA PARTNERS L.P.
By: Xxxx Inlet Telecommunications, Inc., By Providence Media GP Limited
its General Partner Partnership, its General Partner
By Providence Ventures L.P.,
its General Partner
By /s/ Xxxx Xxxxxx By /s/ Xxxxxxxx X. Xxxxxx
------------------------- -----------------------
Its Vice President Its
-------------------- -----------------
-3-
