Exhibit 10.10
AMENDMENT NO. 4
TO
NETWORK MEMBERSHIP LICENSE AGREEMENT
AMENDMENT NO. 4 TO NETWORK MEMBERSHIP LICENSE AGREEMENT ("Amendment No.
4"), dated as of October 22, 2002, by and between AT&T Corp., a New York
corporation, with offices located at ▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, for itself and its affiliated companies (collectively, "Licensor"),
and Triton PCS Operating Company L.L.C., a Delaware limited liability company,
with offices located at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Licensee").
Certain capitalized terms used herein and not otherwise defined have the meaning
assigned to such terms in the License Agreement referred to below.
WHEREAS, AT&T Wireless PCS LLC, a Delaware limited liability company
("AWE") is a stockholder of Triton PCS Holdings, Inc., a Delaware corporation
("Triton PCS Holdings") that is the indirect owner of all of the membership
interests of Licensee, and AT&T Wireless Services, Inc. is a Delaware
corporation ("AWS") that is the sole member of AWE;
WHEREAS, AWS, AWE and/or certain of their affiliates are parties to various
agreements with Licensee and/or Triton PCS Holdings and certain of their
affiliates regarding the governance and operation of Triton PCS Holdings and its
affiliates;
WHEREAS, Licensor and AWS have, for many years, used and Licensor and AWS
desire that Licensee continue to use, in accordance with the terms of that
certain Network Membership License Agreement, dated as of February 4, 1998,
between Licensor and Licensee (as amended, and including the terms and
conditions of the letter from ▇▇▇▇ ▇▇▇▇▇▇▇-Key to ▇▇▇▇▇▇ ▇▇▇▇▇, dated October
20, 1998, the "License Agreement"), as amended hereby, the Licensed Marks in
connection with the Licensed Activities;
WHEREAS, consistent with the provisions of Section 5.4 of the Brand License
Agreement entered into between Licensor and AWS on June 4, 2001 ("AT&T-AWS Brand
License Agreement"), AWS has requested that Licensor continue to license
Licensee and gives Licensor permission to continue to license Licensee, and
Licensor is willing to continue to license and allow Licensee to use the
Licensed Marks under the terms and conditions set forth in the License
Agreement, as amended hereby; and
WHEREAS, each of Licensee and Licensor desires to amend the License
Agreement to include AWS as a party thereto and provide for the further rights
and obligations of the parties thereunder set forth herein.
NOW THEREFORE, in consideration of the premises and mutual covenants
contained herein and for other good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
1. Addition of AWS as a Party. Each of Licensor and Licensee hereby agrees
that, notwithstanding any term set forth in the License Agreement, by virtue of
its acknowledgement of this Amendment No. 4 in the space set forth below, as of
the date hereof AWS shall be a party to the License Agreement, subject and
entitled to all of the rights, duties and obligations of AWS as set forth in
this Amendment No. 4.
2. Amendment of Section 11.1(a). Section 11.1(a) of the License Agreement
is hereby deleted in its entirety and the following is hereby inserted in lieu
thereof:
"(a) This Agreement shall commence on February 4, 1998 and shall be in
effect for six (6) years following such date, unless terminated earlier
pursuant to this Section 11. At the end of the initial term, this Agreement
shall renew for a five (5) year term if Licensor notifies Licensee in writing
of Licensor's desire to so renew no later than ninety (90) days prior to the end
of the initial term and Licensee, within thirty (30) days of its receipt of
such notice from Licensor, informs Licensor and AWS in writing of its agreement
to so renew, provided, that, subject to the succeeding proviso, Licensor shall
be obligated to notify Licensee by the foregoing deadline of such renewal if
AT&T Wireless Services, Inc. ("AWS"), in its sole discretion, requests Licensor
in writing to do so, provided, further, that Licensor shall not be obligated to
renew this Agreement at the request of AWS following the initial term if, at
the time AWS makes such request, a Significant Breach by Licensee has occurred
and is continuing and Licensor notifies AWS of its intent to pursue its
remedies with respect thereto. If AWS does not make the request of Licensor
provided for in the foregoing sentence, Licensor may not, without AWS's prior
written consent, cause the renewal of this Agreement following the initial
term."
3.[INTENTIONALLY LEFT BLANK]
4. Amendment of Section 11.3. Section 11.3. is hereby deleted in its
entirety and the following is hereby inserted in lieu thereof:
"11.3 Termination Obligations. In the event this Agreement expires or
terminates pursuant to this Section 11:
(a) Licensee shall immediately cease use of the Licensed Marks upon
expiration or notice of termination, except that, other than upon expiration
under Section 11.1(a), Licensee shall have the right to continue to use the
Licensed Marks (including without limitation, Licensee's then existing
inventory of Marketing Materials bearing the Licensed Marks) to the extent such
use is otherwise in accordance with the provisions of this Agreement for a
period of up to ninety (90) days following such termination; and
(b) Licensee shall have no further rights under this Agreement, except as
amended in Section 11.5."
5. Amendment to Section 14.
2
(a) Section 14 of the License Agreement is hereby amended to include
AWS as an addressee of all notices, requests, demands or other communications
required to be delivered to it by virtue of its being a party to the License
Agreement, which materials shall be sent to the following addresses in
accordance with the instructions set forth in such Section 14:
AT&T Wireless Services, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
AT&T Wireless Services, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(b) In addition to the terms of Section 5(a), each party acknowledges
and agrees that AWS shall receive, in accordance with the foregoing notice
provision, complete copies of all materials sent by Licensor to Licensee or
Licensee to Licensor pursuant to the terms of the License Agreement, in each
case concurrently with the transmittal thereof (regardless of how such
transmittal is made).
(c) Section 14 of the License Agreement is hereby amended to correct
Licensee's address as follows:
Triton PCS Operating Company LLC
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇
Fax No.: ▇▇▇-▇▇▇-▇▇▇▇
6. Amendment of Section 19. Section 19 of the License Agreement is
hereby amended to add the following subsections "19.9" and "19.10":
"19.9 Reimbursement of Costs. Licensee shall promptly reimburse AWS at
the end of each calendar quarter in arrears for all reasonable costs incurred
by AWS in connection with its administering of this Agreement during such
quarter (which reimbursement shall in no event exceed $***** per calendar
quarter). AWS shall submit to Licensee, at the end of each such quarter, an
invoice setting forth the aggregate amount of such costs, together with
reasonable supporting documentation."
*****Certain information on this page has been omitted from this filing and
filed separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.
3
"19.10 Successors and Assigns. This Agreement shall inure to the benefit of
the parties hereto and their successors and permitted assigns."
7. [INTENTIONALLY LEFT BLANK].
8. [INTENTIONALLY LEFT BLANK].
9. [INTENTIONALLY LEFT BLANK].
10. No Diminishment. Nothing in this Amendment No. 4 shall be construed in
any way to diminish or condition any of the rights or exclusivity granted to AWS
under the AT&T-AWS Brand License Agreement, other than for the temporary,
limited and narrow incursion on AWS's exclusivity in the Licensed Territory made
during the term of the License Agreement by the license granted to Licensee
under section 2.1 thereof, which license is granted at AWS's request and with
its permission.
11. Severability of Provisions. Any provision of this Amendment No. 4
which is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or
affecting the validity or remaining provisions hereof or affecting the validity
or enforceability of such provision in any other jurisdiction.
12. Agreement to Remain in Full Force and Effect. This Amendment No. 4
shall be deemed to be an amendment to the License Agreement. All references to
the License Agreement in any other agreements or documents shall on and after
the date hereof be deemed to refer to the License Agreement as amended hereby.
Except as amended hereby, the License Agreement shall remain in full force and
effect and is hereby ratified, adopted and confirmed in all respects.
13. Headings. The headings in this Amendment No. 4 are inserted for
convenience and identification only and are not intended to describe, interpret,
define or limit the scope, extent or intent of this Amendment No. 4 or any
provision hereof.
14. Counterparts. This Amendment No. 4 may be executed in counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same Amendment No. 4.
15. Applicable Law; Jurisdiction. The construction, performance and
interpretation of this Amendment No. 4 shall be governed by the U.S. Trademark
Act, 15 U.S.C. 1051 et seq., and the internal, substantive laws of the State of
New York, without regard to its principles of conflicts of law; provided that if
the foregoing laws should be modified during the term hereof in such a way as to
adversely affect the original intent of the parties, the parties will negotiate
in good faith to amend this Amendment No. 4 to effectuate their original intent
as closely as possible.
16. Other Agreements.
4
(a) All the Parties hereto agree that no provision of this Amendment No. 4
shall be deemed an acknowledgement or agreement by any party that Triton PCS
Holdings, Licensee or any of their affiliates are a party to or otherwise
subject to or bound by the terms of the AT&T-AWS Brand License Agreement, nor
shall it be deemed evidence that any such entity has any responsibility for the
terms of such agreement.
(b) Neither the existence nor the terms this Amendment No. 4, nor the
parties' performance of their obligations hereunder, shall (i) constitute an
approval or consent, or a waiver or modification by any party of any rights,
remedies or obligations that such party may have (including, without limitation,
with respect to exclusivity rights), under any other agreements (including,
without limitation, the Stockholder' Agreement) or (ii) be used to interpret the
provisions or intent of such other agreement in any arbitration, litigation or
other adversarial proceeding.
[Signature Page Follows]
5
IN WITNESS WHEREOF, the parties hereto have executed this Amendment No. 4
as of the date first above written.
AT&T CORP.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Assistant Secretary
TRITON PCS OPERATING COMPANY
L.L.C. (By Triton Management Company,
Inc., its manager)
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Financial Officer
ACKNOWLEDGED AND AGREED:
AT&T WIRELESS SERVICES, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ Strokes
Title: SVP Corporate Development