Exhibit 99.5
DEBT/EQUITY REPLACEMENT AGREEMENT
THIS DEBT/EQUITY REPLACEMENT AGREEMENT (the "Agreement"), dated as of
September 17, 1999, is made by and among TELEPHONE AND DATA SYSTEMS, INC., a
Delaware corporation ("TDS"), AERIAL COMMUNICATIONS, INC., a Delaware
corporation (the "Company"), AERIAL OPERATING COMPANY, INC., a Delaware
corporation ("Operating Company"), VOICESTREAM WIRELESS CORPORATION, a
Washington corporation ("VoiceStream"), and VOICESTREAM WIRELESS HOLDING
CORPORATION, a Delaware corporation ("Holding") (Wireless and Holding being
referred to herein collectively as "Parent").
RECITALS:
WHEREAS, the Company, TDS, Parent and VoiceStream Subsidiary III
Corporation, a Delaware corporation and a wholly-owned subsidiary of Parent
("Sub"), are parties to that certain Agreement and Plan of Reorganization dated
the date hereof (the "Reorganization Agreement"), providing for, among other
things, the merger (the "Merger") of Sub with and into the Company and the
conversion of shares of Company Common Stock into shares of Parent Common Stock;
WHEREAS, TDS and Operating Company are parties to a Revolving Credit
Agreement dated as of August 31, 1998, as amended (the "Revolving Credit
Agreement");
WHEREAS, the obligations ("Obligations") of Operating Company to TDS
under the Revolving Credit Agreement have been fully and unconditionally
guaranteed by the Company pursuant to a guaranty dated August 31, 1998 (the
"Revolving Credit Agreement Guaranty");
WHEREAS, as of the date hereof, Operating Company has outstanding
indebtedness to TDS under the Revolving Credit Agreement in the principal amount
of $605,239,046;
WHEREAS, the Reorganization Agreement provides that TDS will acquire
Company Common Shares and Company Series A Common Shares prior to the Effective
Time of the Merger in consideration for the assignment to the Company by TDS of
a portion of the debt due by Operating Company to TDS under the Revolving Credit
Agreement (the "Debt/Equity Replacement");
WHEREAS, pursuant to the Investment Agreement, dated as of September 8,
1998 (the "Investment Agreement"), among TDS, the Company, Operating Company and
Sonera Ltd. ("Investor"), the Company will acquire Operating Company Shares
prior to the Effective Time in consideration for the assignment to Operating
Company by the Company
1
of such debt and, if applicable, cash from Investor;
WHEREAS, pursuant to the Investment Agreement, Investor may acquire
Company Common Shares and Operating Company Shares prior to the Effective Time
by exercising certain subscription rights set forth therein;
WHEREAS, at the Effective Time, the Revolving Credit Agreement will be
amended and restated as provided herein and all remaining Obligations
outstanding to TDS after the Debt/Equity Replacement under such amended and
restated Revolving Credit Agreement will mature on the first anniversary of the
Effective Time;
WHEREAS, such amended and restated Revolving Credit Agreement will
remain in effect until the repayment in full of such remaining Obligations, at
which time such amended and restated Revolving Credit Agreement will be
terminated; and
WHEREAS, all capitalized terms used but not otherwise defined herein
shall have the meaning set forth in the Reorganization Agreement.
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements herein set forth, and
subject to the conditions hereof, the parties hereto agree as follows:
Section 1. The Transactions.
1.1 Issuance of Company Shares in Connection with Assignment of Debt.
(a) On the tenth Business Day (as defined in Section 5.12
hereof) occurring after the execution of this Agreement, the Company
shall deliver to Investor a notice pursuant to Section 9.1(a) of the
Investment Agreement (the "Section 9.1(a) Notice"), unless TDS, the
Company, Operating Company and Investor shall agree in writing that the
Section 9.1(a) Notice either may be delivered on a different date or is
not required.
(b) Subject to the terms and conditions of this Agreement, at
and as of the First Closing (as defined herein), TDS shall acquire from
the Company, and the Company shall issue and sell to TDS, fully paid
and nonassessable Company Common Shares and fully paid and
nonassessable Company Series A Common Shares (the "Company Shares") in
exchange for the consideration set forth in paragraph (c) of this
Section 1.1. The ratio of the number of Company Common Shares issued to
TDS to the number of Company Series A Common Shares issued to TDS shall
equal the ratio of the number of Company Common Shares owned by TDS to
the number of Company Series A Common Shares owned by TDS, determined
as of the date of the Section 9.1(a) Notice.
2
(c) The aggregate purchase price for the purchase by TDS of
the Company Shares as contemplated in paragraph (b) of Section 1.1 (the
"TDS Purchase Price") shall be determined in accordance with Section
1.3 hereof and shall represent a purchase price per share of $22.00
(the "TDS Price Per Company Share"). The TDS Purchase Price shall be
paid by the assignment by TDS to the Company of Obligations equal to
the amount of the TDS Purchase Price (the "Assigned Obligations"),
pursuant to an instrument in the form attached hereto as Exhibit 1 (the
"First Assignment and Acceptance"). Effective as of such assignment,
(1) the Assigned Obligations will cease to be evidenced and governed by
the Revolving Credit Agreement and will instead be evidenced and
governed by a separate Credit Agreement in the form attached hereto as
Exhibit 2 (the "New Credit Agreement") and (2) the Revolving Credit
Agreement will be amended pursuant to a Fourth Amendment to the
Revolving Credit Agreement in the form attached hereto as Exhibit 3
(the "Fourth Amendment").
(d) If Investor elects to exercise its subscription rights
pursuant to Section 9.2 of the Investment Agreement (the "Section 9.2
Subscription Rights"), then the Company shall issue to Investor on the
First Closing Date (as defined herein) that number of Company Common
Shares for which Investor has subscribed (the "Investor Subscription
Shares"), subject to Section 4.5(c) of the Investment Agreement, and
subject to the receipt of the proceeds from Investor as required
pursuant to Section 9.2 of the Investment Agreement (the "Investor
Proceeds"). The price per share of the Investor Subscription Shares
(the "Investor Price Per Company Share") shall be equal to the average
of the daily means of the high and low sales prices for Company Common
Shares as reported in The Wall Street Journal (the "Aerial Average")
for the five consecutive trading day period ending on the last trading
day prior to the date of the Section 9.1(a) Notice.
(e) If Investor elects to exercise the AOC Option pursuant to
Section 4.5 of the Investment Agreement (as defined therein), then
Operating Company shall issue to Investor on the First Closing Date
that number of Operating Company Shares for which Investor has
subscribed (the "Investor AOC Option Shares"), subject to the receipt
of the proceeds from Investor as required pursuant to Section 4.5(b) of
the Investment Agreement (the "Investor AOC Option Proceeds"). The
price per share of the Investor AOC Option Shares (the "Investor Price
Per AOC Option Share") shall be equal to the product of (1) the
Exchange Rate (as determined pursuant to the Investment Agreement)
multiplied by (2) the Investor Price Per Company Share (as calculated
pursuant to paragraph (d) of this Section 1.1.
(f) Notwithstanding the provisions of paragraphs (d) and (e)
of this Section 1.1, TDS, the Company, Operating Company and Investor
may agree in writing prior to the First Closing Date that the Investor
Price Per Company Share, both for purposes of paragraph (d) of this
Section 1.1 and for purposes of calculating the Investor Price Per AOC
Option Share pursuant to paragraph (e) of this Section 1.1, shall be
equal to the TDS Price Per Company Share.
3
1.2 Issuance of Operating Company Shares in Connection with Assignment of
Debt and Transfer of Investor Proceeds.
(a) On the First Closing Date, the Company shall deliver to
Investor a notice pursuant to Section 4.1(d) of the Investment
Agreement (the "Section 4.1(d) Notice"), unless TDS, the Company,
Operating Company and Investor shall agree in writing that the Section
4.1(d) Notice either may be delivered on a different date or is not
required.
(b) Subject to the terms and conditions of this Agreement, at
and as of the Second Closing (as defined herein), the Company shall
acquire from Operating Company, and Operating Company shall issue and
sell to the Company, that number of fully paid and nonassessable
Operating Company Shares (the "Company Subscription Shares") as
determined in accordance with the immediately following sentence, in
exchange for the consideration set forth in paragraph (c) of this
Section 1.2. The number of Company Subscription Shares shall be equal
to the quotient of (1) the Company Subscription Price (as defined
herein) divided by (2) a price per share (the "Company Price Per
Operating Company Share") equal to the product of (A) the Exchange Rate
multiplied by (B) the Aerial Average for the twenty consecutive trading
day period ending on the last trading day prior to the First Closing
Date.
(c) The aggregate purchase price for the purchase by the
Company of the Company Subscription Shares as contemplated in paragraph
(b) of this Section 1.2 (the "Company Subscription Price") shall be
equal to the sum of (1) the TDS Purchase Price and (2) the Investor
Proceeds, if any. The Company Subscription Price shall be paid by (A)
the assignment by the Company to Operating Company of the Assigned
Obligations (exclusive of interest accrued thereon for the period
commencing on the First Closing Date and terminating on the Second
Closing Date (as defined herein)), pursuant to an instrument in the
form attached hereto as Exhibit 4 (the "Second Assignment and
Acceptance") and (B) if applicable, the transfer by the Company to
Operating Company of immediately available funds equal to the Investor
Proceeds. Effective as of such assignment, the New Credit Agreement
will terminate pursuant to the Second Assignment and Acceptance.
(d) If Investor elects to exercise its subscription rights
pursuant to Section 4.1(c) and (d) of the Investment Agreement
("Section 4.1(c) Subscription Rights"), then Operating Company shall
issue to Investor on the Second Closing Date that number of Operating
Company Shares for which Investor has subscribed as provided in the
Investment Agreement (the "Additional Investor Subscription Shares"),
subject to the receipt of the proceeds from Investor as required
pursuant to the Investment Agreement (the "Additional Investor
Proceeds"). The price per share of the Additional Investor Subscription
Shares (the "Investor Price Per Operating Company Share") shall be
equal to the Company Price Per Operating Company Share (as calculated
pursuant to paragraph (b) of this Section 1.2).
4
(e) Notwithstanding the provisions of paragraphs (b) and (d)
of this Section 1.2, TDS, the Company, Operating Company and Investor
may agree in writing prior to the Second Closing Date that both the
Company Price Per Operating Company Share and the Investor Price Per
Operating Company Share shall be equal to the product of (1) the
Exchange Rate multiplied by (2) the TDS Price Per Company Share.
1.3 Limitation on Purchase of Shares. Notwithstanding any other provision in
this Agreement, TDS shall cause the aggregate dollar amount of (a) the TDS
Purchase Price to not be less than $400,000,000 and to not exceed $450,000,000
as determined by TDS, (b) the sum of the TDS Purchase Price, the Investor
Proceeds, the Investor AOC Option Proceeds and the Additional Investor Proceeds
(the "Aggregate Proceeds") to not exceed $650,000,000 (the "Aggregate Proceeds
Cap"), and (c) the Aggregate Proceeds to be allocated within the Aggregate
Proceeds Cap between TDS and Investor as permitted by the Investment Agreement
or as TDS and Investor shall otherwise agree in writing; provided, however, that
in the event that the Settlement Agreement and Release currently under
negotiation among the parties hereto, Investor and Sonera Corporation U.S. is
not executed, then (1) the TDS Purchase Price may be less than $400,000,000 but
shall not exceed $450,000,000 and (2) the sum of the Aggregate Proceeds and any
additional dollar amounts of equity that Investor is entitled to purchase
pursuant to the Three-Year Option or Seven-Year Option as set forth in Sections
4.2 and 4.3, respectively, of the Investment Agreement shall not exceed
$650,000,000.
1.4 Payment of Accrued Interest to Company. On the Second Closing Date,
Operating Company shall pay to the Company cash in immediately available funds
equal to the amount of the interest accrued but unpaid on the Assigned
Obligations for the period commencing on the First Closing Date and terminating
on the Second Closing Date (the "Accrued Interest Amount"), in full payment of
such accrued interest.
1.5 Capitalization of Receivables Owed to Operating Company. On the Second
Closing Date, Operating Company shall contribute to each of its subsidiaries, as
a contribution to the capital of such subsidiary, all, or such portion thereof
as Operating Company shall determine, of the receivables owed by such subsidiary
to Operating Company. Because each such subsidiary is wholly-owned, directly or
indirectly, by Operating Company, no additional stock or partnership interests
will be issued to Operating Company in exchange for such contributions.
1.6 Modification of Revolving Credit Agreement Interest Rate and Termination of
Guaranty. On the Second Closing Date, the Revolving Credit Agreement will be
amended pursuant to a Fifth Amendment to the Revolving Credit Agreement in the
form attached hereto as Exhibit 5 (the "Fifth Amendment") to modify the interest
rate thereunder and to terminate the Revolving Credit Agreement Guaranty.
5
1.7 Amendment and Restatement of Revolving Credit Agreement. At the Effective
Time, the Revolving Credit Agreement will be amended and restated pursuant to an
Amended and Restated Credit Agreement in the form attached hereto as Exhibit 6
(the "Amended and Restated Credit Agreement"), which will govern all remaining
Obligations (including accrued interest) to TDS under the Revolving Credit
Agreement that are outstanding as of the Effective Time (the "Adjusted
Obligations"). The Amended and Restated Credit Agreement will provide, inter
alia, that the maturity date of the Adjusted Obligations shall be the first
anniversary of the Effective Time and that the Adjusted Obligations shall accrue
interest at the rate of 3.50% above one-month LIBOR, as in effect from time to
time and as calculated pursuant to the terms of the Amended and Restated Credit
Agreement. The Amended and Restated Credit Agreement will remain in effect until
the repayment in full of the Adjusted Obligations, at which time the Amended and
Restated Credit Agreement shall be terminated.
Section 2. Closing of Transactions and Deliveries.
2.1 First Closing.
(a) Time of First Closing. The consummation of the
transactions contemplated by Section 1.1 (other than paragraph (a)
thereof) (the "First Closing") shall occur on the thirtieth Business
Day occurring after the date of delivery of the Section 9.1(a) Notice
by the Company to Investor, or on such other date occurring prior to
the Effective Time as TDS, the Company, Operating Company and Investor
may agree in writing. (The date of the First Closing is referred to
herein as the "First Closing Date").
(b) Place of First Closing. The First Closing shall take place
at the offices of the Company, or at such other place as TDS, the
Company, Operating Company and Investor may agree in writing.
(c) First Closing Deliveries. At the First Closing:
(i) The Company shall deliver to:
(A) TDS:
(1) certificates representing the
Company Shares;
(2) the First Assignment and
Acceptance; and
(3) The Fourth Amendment.
(B) Operating Company:
6
(1) the First Assignment and
Acceptance;
(2) the New Credit Agreement; and
(3) The Fourth Amendment.
(ii) TDS shall deliver to each of the Company and
Operating Company the First Assignment and Acceptance and the
Fourth Amendment.
(iii) Operating Company shall deliver to:
(A) the Company:
(1) the First Assignment and
Acceptance;
(2) the New Credit Agreement; and
(3) the Fourth Amendment.
(B) TDS:
(1) the First Assignment and
Acceptance; and
(2) the Fourth Amendment.
(iv) In the event Investor exercises:
(A) the Section 9.2 Subscription Rights:
(1) Investor shall deliver to the
Company immediately available funds equal
to the Investor Proceeds; and
(2) the Company shall deliver to
Investor one or more certificates
representing the Investor Subscription
Shares.
(B) the AOC Option:
(1) Investor shall deliver to
Operating Company immediately available
funds equal to the Investor AOC Option
Proceeds; and
(2) Operating Company shall deliver
to Investor one or more certificates
representing the Investor AOC Option
Shares.
(v) Each party shall deliver to the other parties,
as appropriate, such
7
other documents as may be reasonably requested by the other
parties that are necessary or desirable to carry out their
respective obligations under this Agreement and to effectuate
the purposes hereof.
2.2 Second Closing.
(a) Time of Second Closing; Sequence of Transactions. The
consummation of the transactions contemplated by Sections 1.2 (other
than paragraph (a) thereof), 1.4, 1.5 and 1.6 (the "Second Closing")
shall occur on the thirtieth Business Day occurring after the date of
delivery of the Section 4.1(d) Notice by the Company to Investor, or on
such other date occurring prior to the Effective Time as TDS, the
Company, Operating Company and Investor may agree in writing. (The date
of the Second Closing is referred to herein as the "Second Closing
Date"). The consummation of the transactions occurring on the Second
Closing Date shall occur in the following sequence:
(1) the transactions contemplated by Sections 1.2
(other than paragraph (a) thereof), 1.4 and 1.5 shall be
consummated concurrently with each other; and
(2) immediately after the consummation of all of
the transactions identified in clause (1) of this Section
2.2(a), the transaction contemplated by Section 1.6 shall be
consummated.
(b) Place of Second Closing. The Second Closing shall take
place at the offices of Operating Company, or at such other place as
TDS, the Company, Operating Company and Investor may agree in writing.
(c) Second Closing Deliveries. At the Second Closing:
(i) Operating Company shall deliver to:
(A) the Company:
(1) a certificate representing the
Company Subscription Shares;
(2) the Second Assignment and
Acceptance;
(3) immediately available funds
equal to the Accrued Interest
Amount; and
(4) the Fifth Amendment.
(B) TDS, the Fifth Amendment.
8
(ii) The Company shall deliver to:
(A) Operating Company:
(1) the Second Assignment and
Acceptance;
(2) immediately available funds
equal to the Investor Proceeds,
if any; and
(3) the Fifth Amendment.
(B) TDS, the Fifth Amendment.
(iii) TDS shall deliver to Operating Company and
the Company the Fifth Amendment.
(iv) In the event Investor exercises the Section
4.1(c) Subscription Rights:
(A) Investor shall deliver to Operating
Company immediately available funds equal to the
Additional Investor Proceeds; and
(B) Operating Company shall deliver to
Investor one or more certificates representing the
Additional Investor Subscription Shares.
(v) Operating Company and its subsidiaries shall
take such actions and deliver such documents as shall be
necessary to effect the transactions contemplated by Section
1.5 hereof.
(vi) Each party shall deliver to the other parties,
as appropriate, such other documents as may be reasonably
requested by the other parties that are necessary or desirable
to carry out their respective obligations under this Agreement
and to effectuate the purposes hereof.
2.3 Amended and Restated Credit Agreement Closing.
(a) Time of Amended and Restated Credit Agreement Closing. The
execution of the Amended and Restated Credit Agreement contemplated by
Section 1.7 shall occur at the Effective Time.
(b) Place of Amended and Restated Credit Agreement Closing.
The execution of the Amended and Restated Credit Agreement shall take
place at the location of the Closing of the transactions contemplated
by the Reorganization Agreement.
(c) Deliveries. In connection with the Amended and Restated
Credit
9
Agreement closing:
(i) TDS shall execute and deliver the Amended and
Restated Credit Agreement to the Company and Operating
Company.
(ii) The Company shall, and Parent shall cause the
Company to, execute and deliver the Amended and Restated
Credit Agreement to TDS and Operating Company.
(iii) Operating Company shall, and Parent shall
cause Operating Company to, execute and deliver the Amended
and Restated Credit Agreement to TDS and the Company.
(iv) Each party shall deliver to the other parties,
as appropriate, such other documents as may be reasonably
requested by the other parties that are necessary or desirable
to carry out their respective obligations under this Agreement
and to effectuate the purposes hereof.
Section 3. Representations and Warranties.
3.1 Representations and Warranties of the Company. The Company hereby
represents and warrants as follows:
(a) The Company has the legal capacity, power and authority to
enter into and perform all of the Company's obligations under this
Agreement. The execution, delivery and performance of this Agreement by
the Company has been duly authorized by all requisite corporate action
and does not violate the Company's charter, bylaws or any other
instrument or agreement or any law, regulation or order applicable to
the Company or its assets. This Agreement has been duly and validly
executed and delivered by the Company and constitutes a valid and
binding agreement of the Company, enforceable against the Company in
accordance with its terms, except that such enforceability (i) may be
limited by bankruptcy, insolvency, moratorium or other similar laws
affecting or relating to the enforcement of creditors' rights generally
and (ii) is subject to general principles of equity.
(b) Each Company Share issued pursuant to this Agreement will
be, when issued, duly authorized, validly issued, fully paid and
nonassessable and not subject to preemptive rights by any person.
3.2 Representations and Warranties of Operating Company. Operating
Company hereby represents and warrants as follows:
(a) Operating Company has the legal capacity, power and
authority to enter into and perform all of the Operating Company's
obligations under this Agreement. The execution, delivery and
performance of this Agreement by Operating Company
10
has been duly authorized by all requisite corporate action and does not
violate Operating Company's charter, bylaws or any other instrument or
agreement or any law, regulation or order applicable to Operating
Company or its assets. This Agreement has been duly and validly
executed and delivered by Operating Company and constitutes a valid and
binding agreement of Operating Company, enforceable against Operating
Company in accordance with its terms, except that such enforceability
(i) may be limited by bankruptcy, insolvency, moratorium or other
similar laws affecting or relating to the enforcement of creditors'
rights generally and (ii) is subject to general principles of equity.
(b) Each Operating Company Share issued pursuant to this
Agreement will be, when issued, duly authorized, validly issued, fully
paid and nonassessable and not subject to preemptive rights by any
person.
3.3 Representations and Warranties of Parent. Parent hereby represents
and warrants as follows:
(a) Parent has the legal capacity, power and authority to
enter into and perform all of Parent's obligations under this
Agreement. The execution, delivery and performance of this Agreement by
Parent has been duly authorized by all requisite corporate action and
does not violate Parent's charter, bylaws or any other instrument or
agreement or any law, regulation or order applicable to Parent or its
assets. This Agreement has been duly and validly executed and delivered
by Parent and constitutes a valid and binding agreement of Parent,
enforceable against Parent in accordance with its terms, except that
such enforceability (i) may be limited by bankruptcy, insolvency,
moratorium or other similar laws affecting or relating to the
enforcement of creditors' rights generally and (ii) is subject to
general principles of equity.
3.4 Representations and Warranties of TDS. TDS hereby represents and
warrants as follows:
(a) TDS has the legal capacity, power and authority to enter
into and perform all of TDS's obligations under this Agreement. The
execution, delivery and performance of this Agreement by TDS has been
duly authorized by all requisite corporate action and does not violate
TDS's charter, bylaws or any other instrument or agreement or any law,
regulation or order applicable to TDS or its assets. This Agreement has
been duly and validly executed and delivered by TDS and constitutes a
valid and binding agreement of TDS, enforceable against TDS in
accordance with its terms, except that such enforceability (i) may be
limited by bankruptcy, insolvency, moratorium or other similar laws
affecting or relating to the enforcement of creditors' rights generally
and (ii) is subject to general principles of equity.
Section 4. Covenants and Agreements.
11
4.1 Brokers. Each party agrees to indemnify, hold harmless and defend
the other parties from and against any fee or expense due or alleged to be due
to any broker or finder which acted or claims to have acted on such indemnifying
party's behalf in connection with the transactions contemplated by this
Agreement.
Section 5. Miscellaneous.
5.1 Termination. This Agreement shall terminate in the event of the
termination of the Reorganization Agreement pursuant to Section 8.1 thereof.
5.2 Interpretation. References to this Agreement shall refer to this
Agreement and all exhibits, schedules and annexes hereto.
5.3 Further Assurances. The parties hereto will, from time to time,
execute and deliver, or cause to be executed and delivered, such additional or
further consents, proxies, documents and other instruments as the other may
reasonably request for the purpose of effectively carrying out the transactions
contemplated by this Agreement.
5.4 Successors, Assigns and Transferees Bound; Parties in Interest.
This Agreement shall be binding upon the successors, assigns and transferees of
the parties hereto, and the parties hereto shall take any and all actions
necessary to obtain the written confirmation from any such successor, assignee
or transferee that it is bound by the terms hereof. Nothing in this Agreement,
express or implied, is intended or shall be construed to confer upon any Person,
other than the parties hereto and their successors and permitted assigns, any
right, remedy or claim under or by reason of this Agreement.
5.5 Remedies. Each party hereto acknowledges that money damages would
be both incalculable and an insufficient remedy for any breach of this Agreement
by it, and that any such breach would cause the other party irreparable harm.
Accordingly, each party agrees that in the event of any breach or threatened
breach of this Agreement, the other party, in addition to any other remedies at
law or in equity that it may have, shall be entitled, without the requirement of
posting a bond or other security, to equitable relief, including injunctive
relief and specific performance.
5.6 Submission to Jurisdiction. Each party hereto hereby irrevocably
submits in any suit, action or proceeding arising out of or related to this
Agreement or any of the transactions contemplated hereby or thereby to the
exclusive jurisdiction of the courts of the United States and the jurisdiction
of the courts of the State of Delaware and waive any and all objections to
jurisdiction that they may have under the laws of the State of Delaware or the
United States and any claim or objection that any such court is an inconvenient
forum.
5.7 Severability. The invalidity or unenforceability of any provision
of this Agreement in any jurisdiction shall not affect the validity or
enforceability of any other provision of this Agreement in such jurisdiction, or
the validity or enforceability of any
12
provision of this Agreement in any other jurisdiction.
5.8 Amendment. This Agreement may be amended only by means of a written
instrument executed and delivered by each of the parties hereto.
5.9 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE,
REGARDLESS OF THE LAWS THAT MIGHT OTHERWISE GOVERN UNDER
APPLICABLE PRINCIPLES OF CONFLICTS OF LAWS.
5.10 Counterparts. For the convenience of the parties, this Agreement
may be executed in counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.
5.11 Notices. All notices and other communications hereunder shall be
in writing and shall be deemed given if delivered personally, sent by overnight
courier (providing proof of delivery) or telecopied (with a confirmatory copy
sent by overnight courier) to the parties at the following addresses (or at such
other address for a party as shall be specified by like notice):
(a) if to the Parent, or to the Company or Operating Company
after the Effective Time, to
VoiceStream Wireless
0000 000xx Xxxxxx XX, Xxxxx 000
Xxxxxxxx, XX 00000
Attention: General Counsel
Facsimile No.: (000) 000-0000
with a copy to:
Xxxxxxx Xxxxx & Xxxxx XXX
0000 Xxxxxxxx Center
000 Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxx, Esq.
Facsimile No.: (000) 000-0000
(b) if to TDS, or to the Company or Operating Company prior to
the Effective Time, to
Telephone and Data Systems, Inc.
00 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: XxXxx X. Xxxxxxx, Chairman
Facsimile No.: (000) 000-0000
13
with a copy to:
Sidley & Austin
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxx, Esq.
Facsimile No.: (000) 000-0000
5.12 Business Days. For purposes of this Agreement, "Business Day"
shall have the meaning set forth in the Investment Agreement. All Business Day
intervals set forth in this Agreement shall, to the extent necessary, be
appropriately adjusted to ensure compliance with all relevant notice
requirements under the Investment Agreement and any other applicable provisions
thereof.
*****
14
IN WITNESS WHEREOF, TDS, the Company, Operating Company and Parent have
executed this Agreement as of the date first above written.
TELEPHONE AND DATA SYSTEMS, INC.
By: /s/ XxXxx X. Xxxxxxx
---------------------------------
Name: XxXxx X. Xxxxxxx
Title: Chairman
AERIAL COMMUNICATIONS, INC.
By: /s/ XxXxx X. Xxxxxxx, Xx.
----------------------------------
Name: XxXxx X. Xxxxxxx, Xx.
Title: Chairman
AERIAL OPERATING COMPANY, INC.
By: /s/ Xxx X. Xxxxxxxxx
------------------------------
Name: Xxx X. Xxxxxxxxx
Title: President
VOICESTREAM WIRELESS CORPORATION
By: /s/ Xxxxx X. Xxxxxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Executive Vice President - Strategy,
Finance and Development
VOICESTREAM WIRELESS HOLDING
CORPORATION
By: /s/ Xxxxx X. Xxxxxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Executive Vice President - Strategy,
Finance and Development
SIGNATURE PAGE TO DEBT/EQUITY REPLACEMENT AGREEMENT
AMONG TDS, THE COMPANY, OPERATING COMPANY AND PARENT.
15
