EXHIBIT 10.4.1
EXECUTION COPY
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AT&T WIRELESS SERVICES
NETWORK MEMBERSHIP LICENSE AGREEMENT
between
AT&T CORP.
and
TELECORP PCS, INC.
Dated as of July 17, 1998
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1. Definitions................................................................1
2. GRANT OF LICENSE, ETC......................................................5
2.1 Grant of License..................................................5
2.2 No Other Services or Products.....................................5
2.3 Exclusivity.......................................................6
2.4 Use of Licensed Marks on Mobile Phones............................6
3. AGREEMENT PERSONAL.........................................................6
3.1 Personal to Licensee..............................................6
3.2 Licensee Acknowledgment...........................................7
4. USE OF LICENSED MARKS AND OTHER MARKS......................................7
4.1 Approved Licensee Marks...........................................7
4.2 Marks To Be Used..................................................7
4.3 Modification of Licensed Marks....................................8
4.4 Use of Additional Marks at Licensor's Request.....................8
5. RETENTION OF RIGHTS........................................................8
6. SYSTEM REQUIREMENTS........................................................8
7. QUALITY CONTROL............................................................8
7.1 General...........................................................8
7.2 Quality Standards.................................................9
7.3 Quality Service Reviews; Right of Inspection......................9
7.4 Authorized Dealers................................................9
7.5 Sponsorship......................................................10
7.6 Universal Wireless Consortium....................................10
8. REMEDIES FOR NONCOMPLIANCE WITH QUALITY STANDARDS.........................10
8.1 Cure Period......................................................10
8.2 Potential Injury to Persons or Property..........................11
9. PROTECTION OF LICENSED MARKS..............................................11
9.1 Ownership and Rights.............................................11
9.2 Similar Marks....................................................11
9.3 Infringement.....................................................12
9.4 Compliance With Laws.............................................12
10. NO SUBLICENSING...........................................................12
11. TERM AND TERMINATION......................................................13
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11.1 Term................................................................13
11.2 Breach by Licensee..................................................14
11.3 Termination Obligations.............................................15
11.4 No Waiver of Rights.................................................15
11.5 Survival............................................................15
12. INDEMNITY.................................................................15
13. CONSENT OF LICENSOR.......................................................16
14. NOTICES AND DEMANDS.......................................................16
15. COMPLIANCE WITH LAW.......................................................17
16. GOVERNMENTAL LICENSES, PERMITS, AND APPROVALS.............................17
17. APPLICABLE LAW; JURISDICTION..............................................17
18. CONFIDENTIALITY OF INFORMATION AND USE RESTRICTION........................18
19. MISCELLANEOUS.............................................................18
19.1 NAME, CAPTIONS......................................................18
19.2 ENTIRE AGREEMENT....................................................18
19.3 AMENDMENTS, WAIVERS.................................................19
19.4 SPECIFIC PERFORMANCE................................................19
19.5 REMEDIES CUMULATIVE.................................................19
19.6 NO WAIVER...........................................................19
19.7 NO THIRD PARTY BENEFICIARIES........................................19
19.8 COUNTERPARTS........................................................19
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Schedules
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Schedule A Licensed Logo
Schedule B Licensed Trade Dress
Schedule B I United States Service ▇▇▇▇ Registrations or Applications
Schedule C Initial Licensed Territory
Schedule D Quality Control Standards
Schedule E Guidelines for Use of the Licensed Logo and Licensed Phrase
Schedule F Permitted Events
AT&T WIRELESS SERVICES
NETWORK MEMBERSHIP LICENSE AGREEMENT
NETWORK MEMBERSHIP LICENSE AGREEMENT (the "Agreement") dated as of July 17,
1998, by and between AT&T Corp., a New York corporation, with offices located at
▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, for itself and its
affiliated companies, including AT&T Wireless Services, Inc. (collectively
"Licensor"), and TeleCorp PCS, Inc., a Delaware corporation, with offices
located at ▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Licensee"). Certain
capitalized terms used herein are defined in Section 1.
WHEREAS, Licensor has, for many years, used and Licensor desires that
Licensee use, the AT&T Service Marks, and Licensor desires that Licensee use the
Licensed Marks, in connection with Telecommunications Services;
WHEREAS, Licensee, an Affiliate of Licensor and the other stockholders of
Licensee are parties to that certain Stockholders Agreement, dated as of the
date hereof (as the same may be amended, modified or supplemented in accordance
with the terms thereof, the "Stockholders Agreement;" capitalized terms defined
therein and not otherwise defined herein being used herein as therein defined)
and the execution and delivery of the Stockholders Agreement and the other
agreements contemplated therein is a condition to Licensee entering into this
Agreement;
WHEREAS, Licensee wishes to use the Licensed Marks in a limited manner in
the Licensed Territory in connection with the Licensed Activities; and
WHEREAS, Licensor is willing to license and allow Licensee to use the
Licensed Marks under the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein contained and for other good and valuable consideration the receipt and
sufficiency of which is hereby acknowledged, the parties hereby agree as
follows:
1. DEFINITIONS. As used herein, the following terms shall have the
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meanings set forth below:
"Affiliate": A Person that directly, or indirectly through one or more
intermediaries, controls, is controlled by, or is under common control with the
Person specified.
"Approval": The granting by all appropriate Regulatory Authorities of all
necessary licenses, permits, approvals, authorizations and clearances for this
Agreement and the registration or recording of this Agreement as required by all
Regulatory Authorities.
"Approved Licensee Marks": As defined in Section 4.1.
"AT&T Service Marks": The service marks and trademarks AT&T, and AT&T with
a fanciful globe design.
"Authorized Dealers": Any distributor or other agent of Licensee authorized
to market, advertise or otherwise offer, on behalf of Licensee, any Licensed
Services under the Licensed Marks in the Licensed Territory.
"Bankruptcy": With respect to a Person, means (i) the filing by such Person
of a voluntary petition seeking liquidation, dissolution, reorganization,
rearrangement or readjustment, in any form, of its debts under Title 11 of the
United States Code (or corresponding provisions of future laws) or any other
bankruptcy or insolvency law, or such Person's filing an answer consenting to,
or acquiescing in any such petition; (ii) the making by such Person of any
assignment for the benefit of its creditors, or the admission by such Person in
writing of its inability to pay its debts as they mature; (iii) the expiration
of 60 days after the filing of an involuntary petition under Title 11 of the
United States Code (or corresponding provisions of future laws), an application
for the appointment of a receiver for the assets of such Person, or an
involuntary petition seeking liquidation, dissolution, reorganization,
rearrangement or readjustment of its debts or similar relief under any
bankruptcy or insolvency law, provided that the same shall not have been
vacated, set aside or stayed within such 60 day period; or (iv) the entry of an
order for relief against such Person under Title 11 of the United States
Bankruptcy Code.
"Change of Control": Any transaction or event, whether voluntary or
involuntary, that results in, or as a consequence of which, any of the following
events shall occur, except as a result of a sale, transfer or other disposition
by Licensor or any of its Affiliates: (i) any Person, excluding any Person that
is an owner of shares of capital stock of Licensee on the date hereof or that
acquires shares of Voting Preference Common Stock of Licensee pursuant to the
terms of the Management Agreement or the Lenders (as defined in Section 3.1(b))
or any Person to whom the Lenders, with the consent of Licensor, assign this
Agreement, shall acquire, directly or indirectly, Beneficial Ownership (as
defined in Rule 13d-3 of the Securities Exchange Act of 1934, as amended) of (x)
more than 50% of the voting stock of Licensee, or (y) more than 33-1/3% of the
voting stock of Licensee, unless the Persons owning capital stock of Licensee on
the date hereof (together with any Person that acquires Voting Preference Common
Stock of Licensee pursuant to the terms of the Management Agreement)
collectively own a percentage of such voting stock that is higher than such
Person; (ii) any Disallowed Transferee shall acquire, directly or indirectly,
Beneficial Ownership of more than 15% of the voting stock of Licensee; provided
that, for purposes of this Agreement, purchases of Licensee's capital stock made
by third parties in the open market shall not be deemed to be acquisitions of
Licensee's capital stock by Disallowed Transferees; or (iii) a proxy contest for
the election of directors of Licensee results in the persons constituting the
Board of Directors of Licensee immediately prior to the initiation of such proxy
contest ceasing to constitute a majority of the Board of Directors upon the
conclusion of such proxy contest.
"Company Communications Services": Mobile wireless telecommunications
services (including the transmission of voice, data, image or other messages or
content) provided solely within the Licensed Territory, initiated or terminated
using TDMA and frequencies licensed by the FCC, to or from subscriber equipment
that is capable of usage during routine movement
throughout the area covered by a cell site and routine handing-off between cell
sites, and is either intended for such usage or is temporarily fixed to a
specific location on a short-term basis (e.g., a bank of wireless telephones
temporarily installed during a special event of limited duration). Without
limiting the foregoing, Company Communications Services shall include wireless
office services if such services comply with this definition. Company
Communications Services shall also include the transmissions between Licensee's
cell sites and Licensee's switch or switches in the Licensed Territory,
handing-off transmissions at Licensee's switch or switches for termination by
other carriers, and receiving transmissions to Licensee's customers handed-off
at Licensee's switch or switches.
"Company Systems": The systems operated by Licensee to provide Company
Communications Services in the Licensed Territory.
"Control": For purposes of the definitions of "Affiliate" and "Change of
Control", the term "control" (including the terms "controlling," "controlled
by", and "under common control with") of a Person means the possession, direct
or indirect, of the power to (i) vote 50% or more of the voting securities of
such Person or (ii) direct or cause the direction of the management and policies
of such Person, whether by contract or otherwise.
"Disallowed Transferee": Any Prohibited Transferee, or any Regional ▇▇▇▇
Operating Companies, Microsoft, GTE, SNET or any of their respective Affiliates,
successors or assigns.
"FCC": The Federal Communications Commission and any successor governmental
authority.
"Licensed Activities": Each of the following activities: (a) the provision
to end-users and resellers, solely within the Licensed Territory, of Company
Communications Services on frequencies licensed to Licensee for Commercial
Mobile Radio Services pursuant to the AT&T PCS Contributed Licenses, the
Purchased Licenses, the TeleCorp Licenses, the Mercury Licenses and the
Permitted Cellular Licenses, and the provision in connection with such Company
Communications Services of Adopted Service Features (as defined in the
Stockholders Agreement), and (b) marketing and offering the services and
features described in clause (a) within the Licensed Territory, including
advertising such services and features using broadcast and other media, so long
as such advertising extends beyond the Licensed Territory only when and to the
extent necessary to reach end-users and potential end-users in the Licensed
Territory.
"Licensed Logo": The logo containing the AT&T and globe design, as such
logo may be modified or replaced pursuant to Section 4.3, and the expression
"Member, AT&T Wireless Services Network," as set forth in Schedule A attached
hereto. Registrations and pending applications covering the Licensed Logo in the
United States are set forth in Schedule B1 attached hereto. The listing of goods
or services in the specification of any of these registrations or applications
which are outside the scope of services authorized under this Agreement shall
not be construed as inclusion of such goods or services in the license granted
by this Agreement; it being understood that the only services authorized under
this Agreement are as expressly set forth in this Agreement.
"Licensed Marks": Collectively, the Licensed Logo, the Licensed Phrase, the
Licensed Trade Dress, and any additional Marks that may be licensed hereunder
pursuant to Section 4.3 or 4.4.
"Licensed Phrase": The expression "Member, AT&T Wireless Services Network"
or the expression " [Licensee] is a member of the AT&T Wireless Services
Network" and the form of such expression as it may be modified or replaced
pursuant to Section 4.3 or 4.4.
"Licensed Services": The services described in clause (a) of the definition
of the term "Licensed Activities."
"Licensed Territory": The Territory (as defined in the Stockholders
Agreement). The Licensed Territory as of the date hereof is comprised of those
geographic areas set forth in Schedule C.
"Licensed Trade Dress": The general image or appearance of the marketing of
services performed under the Licensed Logo, including without limitation, the
colors, designs, sizing configurations, publication formats and the like as set
forth in Schedule B attached hereto and as such trade dress may be modified or
replaced pursuant to Section 4.3, and such other trade dress as may be added
thereto or substituted therefor in accordance with Section 4.3 or 4.4.
"Licensee": As defined in the preamble.
"Licensor": As defined in the preamble.
"▇▇▇▇": Any name, ▇▇▇▇▇, ▇▇▇▇, trademark, service ▇▇▇▇, sound ▇▇▇▇, trade
dress, trade name, business name, slogan, or other indicia of origin.
"Marketing Materials": Any and all materials, whether written, oral, visual
or in any other medium, used by Licensee or its Authorized Dealers to market,
advertise or otherwise offer any Licensed Services under the Licensed Marks.
"Person": Any individual, corporation, partnership, firm, joint venture,
limited liability company, limited liability partnership, association, joint-
stock company, trust, estate, incorporated or unincorporated organization,
governmental or regulatory body, or other entity.
"Purchased Licenses": The PCS licenses that Licensee has agreed to purchase
from Licensor pursuant to the terms of the License Purchase Agreement, dated as
of January 23, 1998, between Licensor and Licensee, as the same may be amended,
modified or supplemented in accordance with the terms thereof.
"Quality Control Representatives": Representatives of Licensor appointed in
accordance with Section 7.
"Quality Standards": The TDMA Quality Standards and the Guidelines for Use
of the Licensed Logo and Licensed Phrase set forth in Schedules D and E to this
Agreement.
"Regulatory Authority": Any regulatory, administrative or governmental
entity, authority or agency, including without limitation, the FCC and the
Export Licensing Office of the U.S. Department of Commerce.
"Significant Breach by Licensee": As defined in Section 11.2.
"Stockholders Agreement": As defined in the second recital.
"Successor": With respect to any party, any successor, transferee or
assignee, including without limitation, any receiver, debtor in possession,
trustee, conservator or similar Person with respect to such party or such
party's assets.
"TDMA Quality Standards": The quality standards applicable to TDMA PCS
Systems and Cellular Systems (as such terms are defined in the Stockholders
Agreement) owned and operated by Licensor's Affiliates in the Central and
Southwest Region, which, as currently in effect, are set forth on Schedule D, as
the same may be amended from time to time, provided any such amended standards
shall become effective one hundred twenty (120) days after notice thereof is
given to Licensee.
"Telecommunications Service": Any service providing the transmission of
voice, data, image or other messages or content, by radio or by aid of wire,
cable or other means now known or later developed between the points of origin
and reception of such transmission, or by means of any combination of the
foregoing.
2. GRANT OF LICENSE, ETC.
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2.1 Grant of License. Subject to the terms and conditions of this
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Agreement, Licensor hereby grants to Licensee a royalty free, non-transferable,
non-sublicensable, non-exclusive limited right and license to use the Licensed
Marks in the Licensed Territory, solely in connection with Licensed Activities.
2.2 No Other Services or Products. The Licensed Marks may not be used by
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Licensee in connection with any service, except as expressly set forth in this
Agreement, or any product, except as expressly permitted by the terms of Section
2.4. Specifically, but not by way of limitation, this Agreement does not grant
Licensee the right to use the Licensed Marks in connection with (a) the
manufacture or distribution of any products other than the distribution of
mobile phones to the extent expressly permitted by the terms of Section 2.4, or
(b) any Telecommunications Services, including, but not limited to long distance
services, other than Licensed Services. Accordingly, this Agreement does not
grant any license, authorization or permission to Licensee to appear on an equal
access ballot, or in any other fashion, as a long distance provider using the
Licensed Marks, or to use the Licensed Marks in connection with the reselling of
long distance or local service or any other service. Licensee shall identify to
Licensee's customers that Licensor is their long distance carrier and refer to
Licensor by its Marks and trade dress. This Agreement does not grant Licensee
the right to use any AT&T Service ▇▇▇▇ or any other ▇▇▇▇ of Licensor in any
manner, except as part of the Licensed Logo, Licensed Phrase and Licensed Trade
Dress as specifically set forth in this Agreement, or in the manner specifically
set forth in Sections 2.4, 4.1, 4.3 and 4.4.
2.3 Exclusivity. Licensor (on behalf of itself and its Affiliates) shall
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not grant to any Person (other than a Subsidiary of Licensor) a right or license
to provide or resell, or act as agent for any Person offering, Company
Communications Services under the Licensed Marks except to any Person that (i)
resells, or acts as Licensee's agent for, Company Communications Services
provided by Licensee, including bundling any such Company Communications
Services with other Telecommunications Services marketed, offered and provided
or resold by such Person pursuant to an agreement between such Person and
Licensor or its Affiliates (in its capacity as reseller or agent) or Licensee,
or (ii) provides or resells wireless Telecommunications Services to or from
specific locations (such as buildings or office complexes), even if the
subscriber equipment used in connection with such service may be capable of
routine movement within a limited area (such as a building or office complex),
and even if such subscriber equipment may be capable of obtaining other
telecommunications services beyond such limited area (which other services may
include routine movement beyond such limited area) and handoff between the
service to such specific location and such other telecommunications services. To
the extent the "other telecommunications services" referred to in clause (ii) of
the immediately preceding sentence constitute Company Communications Services,
Licensor (on behalf of itself and its Affiliates) shall not grant to any Person
a right or license to provide or resell such "other telecommunications services"
under the Licensed Marks, except in accordance with the terms of clause (i) of
the immediately preceding sentence. Nothing herein shall be construed to affect
the obligations of AT&T Wireless PCS Inc. and its Affiliates set forth in
Section 8.6 of the Stockholders Agreement.
2.4 Use of Licensed Marks on Mobile Phones. In connection with its
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marketing, offering and provision of Licensed Services, Licensee may offer and
distribute to end-users mobile phones branded with the same Marks of Licensor,
and in the same manner, as the mobile phones distributed by or on behalf of
Licensor and its Affiliates, provided that such mobile phones (a) are purchased
from Licensor or its Affiliates, (b) are identical to mobile phones offered and
distributed by Licensor and its Affiliates and are purchased from the same
manufacturer (or its authorized dealers), or (c) are manufactured and
distributed by a manufacturer authorized by Licensor to manufacture mobile
phones branded with such Marks (or its authorized dealers).
3. AGREEMENT PERSONAL.
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3.1 Personal to Licensee.
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(a) In recognition of the unique nature of the relationship between
Licensor and Licensee, the fact that Licensor would not be willing to enter into
an agreement such as this Agreement with any other party in any other
circumstances, and the unique nature of Licensee (including without limitation,
the fact that Licensee is partially owned by Licensor's Affiliate, AT&T Wireless
PCS Inc.), the parties agree that the rights, obligations and benefits of this
Agreement shall be personal to Licensee, and Licensor shall not be required to
accept performance from, or render performance to an entity other than Licensee
or even to Licensee itself in the event of a Change of Control of Licensee.
Pursuant to 11 U.S.C. (S) 365(c)(1)(A) (as it may be amended from time to time,
and including any successor to such provision), in the event of the Bankruptcy
of Licensee, this Agreement may not be assigned or assumed by Licensee (or
any Successor) and Licensor shall be excused from rendering performance to, or
accepting performance from, Licensee or any Successor.
(b) Notwithstanding the foregoing, this Agreement may be assigned to
the lenders (the "Lenders") named in the $435 million Credit Agreement (the
"Credit Agreement") dated the date hereof entered into between Licensee and the
Lenders, and, after a default under the Credit Agreement and the expiration of
any applicable grace and cure periods thereunder, the Lenders may enforce
Licensee's rights hereunder and the Lenders may assign this Agreement to any
Person with the consent of Licensor.
3.2 Licensee Acknowledgment. Licensee acknowledges and agrees that it
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understands it may have, or, in the future, may elect to enter into, agreements
with Licensor's Affiliates and that neither the execution or continuation nor
the renewal of any of these agreements will have any effect on this Agreement
and Licensee may choose to contract, or not, with Licensor's Affiliates as it
deems appropriate.
4. USE OF LICENSED MARKS AND OTHER MARKS.
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4.1 Approved Licensee Marks. Licensee shall have the right from time to
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time during the term hereof to create and use its own Marks, together with the
Licensed Marks, in connection with the Licensed Activities; provided that
Licensee provides Licensor with prior written notice of its desire to use any
such Marks owned by Licensee and Licensor approves Licensee's proposed use of
such Marks (which approval shall not be unreasonably withheld, delayed or
conditioned). Licensor shall use commercially reasonable efforts to approve or
disapprove any Marks proposed to be used by Licensee within 30 days of its
receipt of a written request for such approval. If Licensee has not received a
response from Licensor by the end of such 30-day period, Licensee shall have the
right to send a second written request for such approval to Licensor that states
expressly that, if Licensee does not receive a response from Licensor within 30
days after Licensor's receipt of such second request, Licensor shall be deemed
to have approved Licensee's proposed ▇▇▇▇ or Marks. If Licensee does not receive
such response by the end of such second 30-day period, Licensor shall be deemed
to have approved such proposed ▇▇▇▇ or Marks. Marks approved by Licensor in
accordance with this Section 4.1 shall be sometimes referred to herein as
"Approved Licensee Marks."
4.2 Marks To Be Used. Licensee shall conduct all Licensed Activities solely
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under the Approved Licensee Marks, together with the Licensed Marks, all in
accordance with guidelines set forth on Schedule E.
4.3 Modification of Licensed Marks. In the event Licensor modifies or
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replaces any of the Licensed Marks as they are used in any portion of Licensor's
business, and if Licensor requests Licensee to adopt and use any such modified
or replaced Licensed Marks, Licensee will adopt and use such modified or
replaced Licensed Marks and, in such event, such modified or replaced Licensed
Marks shall be considered the Licensed Marks contemplated by this Agreement;
provided that in such event, Licensee shall be granted a 180-day period during
which to phase-out its use of the superseded forms of the Licensed Marks, as
applicable, and during such 180-day period Licensee shall have the right to use
its existing inventory of Marketing Materials bearing the superseded forms of
the Licensed Marks, as applicable.
4.4 Use of Additional Marks at Licensor's Request. Licensor may, from time
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to time, request Licensee to adopt and use a ▇▇▇▇ or Marks of Licensor, in
addition to the then existing Licensed Marks in connection with the Licensed
Activities. Such additional ▇▇▇▇ or Marks shall be licensed hereunder on the
same terms as the then existing Licensed Marks and Licensee shall within a
reasonable time, but in any event within one hundred eighty (180) days, comply
with Licensor's request by adopting and using such additional ▇▇▇▇ or Marks;
provided that during such 180-day period Licensee shall have the right to use
its existing inventory of Marketing Materials that do not contain the additional
▇▇▇▇ or Marks.
5. RETENTION OF RIGHTS. Except as otherwise expressly provided in Section
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2, nothing in this Agreement shall be deemed or construed to limit in any way
Licensor's rights in and to the AT&T Service Marks and the Licensed Marks,
including without limitation:
(a) all rights of ownership in and to the AT&T Service Marks and the
Licensed Marks, including the right to license or transfer the same; and
(b) the unimpaired right to use the AT&T Service Marks and the Licensed
Marks in connection with marketing, offering or providing any products or
services (including, without limitation Licensed Services) whether within or
without the Licensed Territory.
6. SYSTEM REQUIREMENTS. The terms of Sections 8.1(a), 8.2, 8.3, and 8.5(a)
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of the Stockholders Agreement are hereby incorporated herein by reference with
the same effect as if set forth herein in their entirety and Licensee shall
comply with its obligations therein.
7. QUALITY CONTROL.
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7.1 General. Licensee acknowledges that the services and activities covered
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by this Agreement must be of sufficiently high quality as to provide maximum
enhancement to and protection of the Licensed Marks and the good will they
symbolize. Licensee further acknowledges that the maintenance of high quality
services is of the essence of this Agreement, as is the use of the Licensed
Marks in connection therewith, and that it will utilize only Marketing Materials
which enhance (and do not disparage or place in disrepute) Licensor, its
businesses or its business reputation, and enhance (and do not adversely affect
or detract from) Licensor's good will and will use the Licensed Marks in ways
(but only in ways) which will so enhance Licensor's business reputation and good
will.
7.2 Quality Standards. Licensee shall use commercially reasonable efforts
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to cause the Company Systems to comply with the TDMA Quality Standards. Without
limiting the foregoing, with respect to each material portion of a Company
System (such as a city) that Licensee places in commercial service, on or prior
to the first anniversary of the date such material portion is placed in
commercial service, Licensee shall cause each such material portion to achieve a
level of compliance with the TDMA Quality Standards equal to at least the
average level of compliance achieved by comparable PCS and Cellular Systems
owned and operated by AT&T PCS taking into account, among other things, the
relative stage of development thereof.
Licensee shall also comply with the Guidelines for Use of the Licensed Logo
and Licensed Phrase as set forth in Schedule E to this Agreement, and which
shall be considered part of the Quality Standards.
7.3 Quality Service Reviews; Right of Inspection. Licensor shall have the
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right to designate from time to time, one or more Quality Control
Representatives, who shall have the right at any time, upon fifteen (15) days
notice to Licensee, to conduct during regular business hours an inspection,
test, survey and review of Licensee's facilities and the facilities of
Licensee's Authorized Dealers, if any, and otherwise to determine compliance
with the Quality Standards (each, an "Inspection"); provided that Licensor shall
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use all commercially reasonable efforts to ensure that such Inspections shall
not unreasonably interfere with Licensee's conduct of its business; and provided
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further that Licensor shall not be permitted to conduct more than two (2)
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Inspections during each 12-month period of the term of this Agreement unless
Licensor reasonably believes that Licensee is not in compliance with the Quality
Standards, in which case Licensor shall be permitted to conduct Inspections from
time to time until Licensee has been determined to be in compliance. Licensee
agrees to collect, maintain and furnish to the Quality Control Representatives:
(i) all performance data relating to Licensee's Licensed Services reasonably
requested by the Quality Control Representatives and representative samples of
Marketing Materials that are marketed or provided under the Licensed Marks for
Inspections to assure conformance of the Licensed Services and the Marketing
Materials with the Quality Standards; and (ii) all performance data in its
control reasonably requested by the Quality Control Representatives relating to
the conformance of Licensed Services with the Quality Standards. Any such data
provided to Licensor shall be treated confidentially in accordance with Section
18. Licensor may independently conduct continuous customer satisfaction and
other surveys to determine if Licensee is meeting the Quality Standards.
Licensee shall cooperate with Licensor fully in the distribution and conduct of
such surveys so long as such cooperation shall not unreasonably interfere with
the conduct of Licensee's business. If Licensee learns that it is not complying
with the Quality Standards in any material respect, it shall notify Licensor,
and the provisions of Section 8 shall apply to such noncompliance.
7.4 Authorized Dealers. Licensee shall provide to Licensor within 10 days
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after the expiration of each calendar quarter during the term of this Agreement
a list of all Authorized Dealers. Licensor shall have the right, exercisable in
its reasonable discretion, to give Licensee written notice requiring Licensee to
terminate any Authorized Dealer that Licensor reasonably believes is not in
compliance with the Quality Standards (after notice of such non-compliance and a
reasonable opportunity to cure has been granted to such Authorized Dealer)
effective no later than 30 days from the date such written notice is given by
Licensor to Licensee. All Authorized Dealers shall be bound by Licensor's
Quality Standards and by Licensee's obligations under this Agreement. A breach
by any such Authorized Dealer of this Agreement shall be deemed a breach of this
Agreement by Licensee; provided that Licensee's termination of such breaching
Authorized Dealer shall be deemed to cure any such breach.
7.5 Sponsorship. Licensee shall not use the Licensed Marks to sponsor,
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endorse, or claim affiliation with any event, meeting, charitable endeavor or
any other undertaking (each, an "Event") without the express written permission
of Licensor; provided however that, the categories of Events described on
Schedule F attached hereto shall be deemed pre-approved by Licensor and Licensee
shall not be required to seek permission from Licensor to sponsor, endorse or
claim affiliation with such Events using the Licensed Marks. Notwithstanding the
foregoing, Licensor reserves the right to deny permission to any event and to
amend Schedule F. In the event that Licensee desires to sponsor, endorse or
claim affiliation with an Event not described on Schedule F, Licensee shall
provide Licensor with at least twenty (20) business days
prior written notice of such Event in reasonable detail and Licensor shall be
deemed to have granted Licensee permission to sponsor, endorse or claim
affiliation with such Event if a denial of permission is not received by
Licensee by the date or time specified in such notice. Any breach of this
provision reasonably determined to have a material adverse effect on Licensor or
the Licensed Marks shall be deemed a Significant Breach by Licensee (in no event
less than ten business days after receipt of the notice).
7.6 Universal Wireless Consortium. Licensee shall, throughout the term of
-----------------------------
this Agreement, and any renewals or extensions thereof, be a member of the
Universal Wireless Consortium.
8. REMEDIES FOR NONCOMPLIANCE WITH QUALITY STANDARDS.
-------------------------------------------------
8.1 Cure Period. If Licensor becomes aware that Licensee or its Authorized
-----------
Dealers, if any, are not complying with any Quality Standards in any material
respect and notifies Licensee in writing thereof, setting forth, in reasonable
detail, a written description of the noncompliance and any suggestions for
curing such noncompliance, then Licensee shall cure such noncompliance as soon
as is practicable but in any event within thirty (30) days thereafter or, in the
case of noncompliance with the TDMA Quality Standards, if such breach is not
capable of being cured on commercially reasonable terms within such thirty (30)
day period, within one-hundred eighty (180) days of such notice, provided that
Licensee is using commercially reasonable efforts to cure such material breach
as soon as reasonably practicable. In the event that the non-compliance with the
Quality Standards is being caused by an Authorized Dealer, Licensee's
termination of such Authorized Dealer shall be deemed to cure such non-
compliance. If such non-compliance with the Quality Standards continues beyond
the applicable cure period described above, Licensee shall then: (i) cease any
Licensed Activities under the Licensed Marks in the Licensed Territory until it
can comply with the Quality Standards; and (ii) at Licensor's election, be
deemed to be in breach of this Agreement.
8.2 Potential Injury to Persons or Property. Notwithstanding the foregoing,
---------------------------------------
in the event that Licensor reasonably determines that any noncompliance creates
a material threat of personal injury or injury to property of any third party,
upon written notice thereof by Licensor to Licensee, Licensee shall cure such
non-compliance as soon as practicable but in any event within thirty (30) days
after receiving such notice. If the non-compliance continues beyond such cure
period, Licensee shall either cease any Licensed Activities under the Licensed
Marks in the Licensed Territory until it can comply with the Quality Standards,
or be deemed to be in breach of this Agreement.
9. PROTECTION OF LICENSED MARKS.
----------------------------
9.1 Ownership and Rights. Licensee admits the validity of, and agrees not
--------------------
to challenge the ownership or validity of the Licensed Marks. Licensee
acknowledges that it will not obtain any ownership interest in the Licensed
Marks or any other right or entitlement to continued use of them, regardless of
how long this Agreement remains in effect and regardless of any reason or lack
of reason for the termination thereof by Licensor; provided that by making this
acknowledgment Licensee is not waiving, and does not intend to waive, any
contractual rights hereunder or its remedies upon a breach hereof by Licensor.
Licensee shall not disparage,
dilute or adversely affect the validity of the Licensed Marks. Licensee agrees
that any and all good will and other rights that may be acquired by the use of
the Licensed Marks by Licensee shall inure to the sole benefit of Licensor,
except a security interest granted to the Lenders in accordance with the terms
of the Credit Agreement. Licensee will not grant or attempt to grant a security
interest in the Licensed Marks or this Agreement, or to record any such security
interest in the United States Patent and Trademark Office or elsewhere, against
any trademark application or registration belonging to Licensor. Licensee agrees
to execute all documents reasonably requested by Licensor to effect registration
of, maintenance and renewal of the Licensed Marks. For purposes of this
Agreement, Licensee shall be considered a "related company" under the U.S.
Trademark Act, 15 U.S.C. (S) 1051 et seq.
9.2 Similar Marks. Licensee further agrees not to register in any country
-------------
any ▇▇▇▇ resembling or confusingly similar to the Licensed Marks or the AT&T
Service Marks, or which dilutes the Licensed Marks or the AT&T Service Marks,
and not to use the Licensed Marks or the AT&T Service Marks or any part thereof
as part of its corporate name, nor use (except in accordance with Section 4.1)
any ▇▇▇▇ confusingly similar, deceptive or misleading with respect to the
Licensed Marks or the AT&T Service Marks or which dilutes the Licensed Marks or
the AT&T Service Marks. Licensee further agrees not to use or register in any
country any ▇▇▇▇ similar to the Licensed Marks or the AT&T Service Marks, or
which dilutes the Licensed Marks or the AT&T Service Marks. If any application
for registration is, or has been filed in any country by Licensee which relates
to any ▇▇▇▇ which, in the sole opinion of Licensor, is confusingly similar,
deceptive or misleading with respect to the Licensed Marks or the AT&T Service
Marks, or which dilutes the Licensed Marks or the AT&T Service Marks, Licensee
shall, at Licensor's sole discretion, immediately abandon any such application
or registration or assign it (free and clear of any Liens, and for consideration
of $1.00) to Licensor. If Licensee uses any ▇▇▇▇ which, in the sole opinion of
Licensor, is confusingly similar, deceptive or misleading with respect to the
Licensed Marks or the AT&T Service Marks, or which dilutes the Licensed Marks or
the AT&T Service Marks, or if Licensee uses the Licensed Marks or the AT&T
Service Marks in connection with any product, or in connection with any service
not specifically authorized hereunder, Licensee shall, immediately upon
receiving written request from Licensor, permanently cease such use.
Notwithstanding anything to the contrary contained in this Section 9.2, Licensee
shall have the right to use and register the Approved Licensee Marks that are
used together with the Licensed Marks in accordance with the terms of this
Agreement and the Approved Licensee Marks shall not be deemed by Licensor to
resemble or to be confusingly similar to the Licensed Marks.
9.3 Infringement. In the event that either party learns of any infringement
------------
or threatened infringement of the Licensed Marks, or any unfair competition,
passing-off or dilution with respect to the Licensed Marks, or any third party
alleges or claims that any of the Licensed Marks are liable to cause deception
or confusion to the public, or is liable to dilute or infringe any right of such
third party (each such event, an "Infringement"), such party shall promptly
notify the other party or its authorized representative giving particulars
thereof, and Licensee shall provide necessary information and reasonable
assistance to Licensor or its authorized representatives in the event that
Licensor decides that proceedings should be commenced or defended. For purposes
of this Agreement, Licensee shall be deemed to have "learned" of an Infringement
when either (i) the General Manager of one of Licensee's operating subsidiaries
or divisions or (ii) an executive officer of Licensee obtains actual knowledge
of the Infringement.
Licensor shall have exclusive control of any litigation, opposition,
cancellation or related legal proceedings. The decision whether to bring,
defend, maintain or settle any such proceedings shall be at the exclusive option
and expense of Licensor, and all recoveries shall belong exclusively to
Licensor. Licensee will not initiate any such litigation, opposition,
cancellation or related legal proceedings in its own name but, at Licensor's
request, agrees to be joined as a party in any action taken by Licensor to
enforce its rights in the Licensed Marks or the AT&T Service Marks; provided
that Licensor shall reimburse Licensee for all reasonable out-of-pocket costs
and expenses incurred by Licensee, its Affiliates and authorized representatives
(and their respective directors, officers, stockholders, employees and agents)
in connection with their participation in such action. Nothing in this Agreement
shall require, or be deemed to require Licensor to enforce the Licensed Marks or
the AT&T Service Marks against others.
9.4 Compliance With Laws. In the performance of this Agreement, Licensee
--------------------
shall comply in all material respects with all applicable laws and regulations
and administrative orders, including those laws and regulations particularly
pertaining to the proper use and designation of Marks in the Licensed Territory.
Should Licensee be or become aware of any applicable laws or regulations which
are inconsistent with the provisions of this Agreement, Licensee shall promptly
notify Licensor of such inconsistency. In such event, Licensor may, at its
option, either waive the performance of such inconsistent provisions, or
negotiate with Licensee to make changes in such provisions to comply with
applicable laws and regulations, it being understood that the parties intend
that any such changes shall preserve to the extent reasonably practicable the
parties' respective benefits under this Agreement.
10. NO SUBLICENSING. Licensee shall not: (i) assign, license, transfer,
---------------
dispose or relinquish any of its rights or obligations hereunder (whether by
merger, consolidation, sale, operation of law or otherwise) other than as
contemplated by Section 3.1(b); or (ii) grant or purport to grant any sublicense
in respect of the Licensed Marks; provided that Licensee's Authorized Dealers
and Subsidiaries shall have the right to use the Licensed Marks in accordance
with the Quality Standards in connection with Licensed Activities. Any such
purported assignment, license, transfer, disposition, relinquishment or
sublicense shall be void and of no effect.
11. TERM AND TERMINATION.
--------------------
11.1 Term.
----
(a) This Agreement shall commence on the date hereof and shall be in
effect for five (5) years following such date, unless terminated earlier
pursuant to this Section 11. Neither party has a right or obligation to renew
this Agreement beyond the initial term; provided, however, that if each party
-------- -------
gives written notice (a "Renewal Notice") to the other party of an election to
renew not less than ninety (90) days prior to the end of the initial term, then,
and only then, shall this Agreement renew for an additional five (5) year term.
During the ten (10) day period commencing one hundred twenty (120) days prior to
the end of the initial term, either party may give written notice (a "Renewal
Request") to the other party requesting that such other party give a Renewal
Notice. No later than ninety (90) days prior to the end of the initial term, the
recipient of a Renewal Request shall give to the requesting party either, in its
sole discretion: (i) a Renewal Notice or (ii) a written notice (a "Non-Renewal
Notice") stating it is not electing to
renew the term of this Agreement. Any recipient of a Renewal Request that fails
to send either a Renewal Notice or a Non-Renewal Notice in accordance with the
immediately preceding sentence shall be deemed to have given a Renewal Notice.
In the event either party fails to give a Renewal Notice or, in response to a
Renewal Request, gives a Non- Renewal Notice, such party shall be presumed to
have good cause for non- renewal either due to an action or failure to act by
the other party or due to circumstances related to the party who did not provide
the notice. In the event that AT&T Wireless PCS Inc. shall convert any shares of
Series A Preferred Stock of Licensee into Common Stock of Licensee (as such
terms are defined in the Stockholders Agreement), the term of this Agreement
shall expire on the later of (x) two (2) years from the Series A Conversion Date
(as such term is defined in Licensee's Restated Certificate of Incorporation),
and (y) the then existing expiration date of this Agreement.
(b) Notwithstanding anything to the contrary contained in this Section
11.1, this Agreement may be terminated by Licensor upon written notice to
Licensee at any time following the later to occur of (x) the termination by AT&T
Wireless PCS Inc. of its obligations under Section 8.6 of the Stockholders
Agreement pursuant to Section 8.8(c) of the Stockholders Agreement, and (y) the
second anniversary of the date Licensor (or an affiliate of Licensor) gives
written notice to Licensee that it has entered into a letter of intent or
binding agreement to engage in a Disqualifying Transaction (as defined in the
Stockholders Agreement); provided, however, that in no event shall Licensor have
the right to terminate this Agreement as of a date prior to the fifth
anniversary of the date hereof, provided further however that, in the event that
this Agreement is terminated pursuant to this Section 11.1(b) and Licensee does
not exercise its right pursuant to Section 6.1 of the Stockholders Agreement to
convert all of the shares of Company Stock (as defined in the Stockholders
Agreement) owned by AT&T Wireless PCS Inc. into Series B Preferred Stock (as
defined in the Stockholders Agreement), the termination shall only apply to the
portion of the Territory that constitutes the "Overlap Territory" (as defined in
the Stockholders Agreement) and this Agreement shall remain in full force and
effect with respect to the remainder of the Territory.
11.2 Breach by Licensee. Licensor may terminate this Agreement at any time
------------------
in the event of a Significant Breach by Licensee. A "Significant Breach by
Licensee" shall mean, after exhaustion of any applicable cure periods set forth
in this Agreement, any of the following:
(a) Licensee's use of any ▇▇▇▇ (including the Licensed Marks and the
AT&T Service Marks) contrary to the provisions of this Agreement, or the use by
an Authorized Dealer of any ▇▇▇▇ (including the Licensed Marks and the AT&T
Service Marks) contrary to the provisions of this Agreement, including a
violation by Licensee of Section 4.2, in each case which continues for more than
30 days after written notice thereof has been given to Licensee;
(b) Subject to the provisions of Section 8.1, Licensee's use of the
Licensed Marks in connection with any Marketing Materials, or the offering,
marketing or provision of any Licensed Services, or the conduct of any Licensed
Activities or any other aspect of its business conducted by it, which fail to
meet the Quality Standards in any material respect;
(c) Licensee's refusing or neglecting a request by Licensor pursuant
to Section 7.3 for access to Licensee's facilities or Marketing Materials, which
refusal or neglect continues for more than five business days after written
notice thereof is given to Licensee;
(d) Licensee's licensing, assigning, transferring, disposing of or
relinquishing (or purporting to license, assign, transfer, dispose of or
relinquish) any of the rights granted in this Agreement to others, except as
permitted by Section 10;
(e) Licensee's failure to maintain the Quality Standards and other
information furnished under this Agreement in confidence pursuant to Section 18,
or failing to restrict the transmission of information, products and commodities
as required by Section 18;
(f) The occurrence of a Change of Control of Licensee;
(g) Licensee's loss, for any reason whatsoever, of its rights to hold,
directly or indirectly, the FCC licenses for Company Communications Services in
the Licensed Territory or to provide the Company Communications Services under
such licenses, unless (i) such loss results, directly or indirectly, from the
actions or inactions of Licensor or its Affiliates or (ii) such loss relates to
less than 5% of the POPS in the Licensed Territory;
(h) The Bankruptcy of Licensee;
(i) Licensee's failure in any material respect to obtain Licensor's
permission as provided in, or any other material breach of the provisions of,
Section 7.5; or
(j) Any Substantial Company Breach.
11.3 Termination Obligations. In the event this Agreement terminates
-----------------------
pursuant to this Section 11:
(a) Licensee shall immediately cease use of the Licensed Marks upon
notice of termination, except that 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 provided in Section 11.5.
11.4 No Waiver of Rights. In addition to any other provision of this
-------------------
Section 11, each party will retain all rights to any other remedy it may have at
law or equity for any breach by the other of this Agreement.
11.5 Survival. Sections 11.3(a), 12.1, 17 and 18 shall survive any
--------
expiration or termination of this Agreement.
12. INDEMNITY.
---------
12.1 Licensor shall defend, indemnify and hold Licensee and its authorized
representatives (including the Authorized Dealers), and their respective
directors, officers, stockholders, employees and agents, harmless against all
claims, suits, proceedings, costs, damages, losses and expenses (including
reasonable attorneys' fees) and judgments incurred,
claimed or sustained by Licensee or such persons arising out of: (i) claims by
third parties that Licensee's use of the Licensed Marks in accordance with this
Agreement constitutes trademark, service ▇▇▇▇ or trade dress infringement (or
infringement of any other intellectual property or other proprietary right owned
by a third party), dilution, unfair competition, misappropriation or
false/misleading advertising; (ii) any third party claims as to the lack of
validity or enforceability of (A) the registrations of the Licensed Marks or (B)
Licensor's ownership rights in the Licensed Marks; and (iii) any lack of
validity or enforceability of this Agreement caused by Licensor. Subject to
Licensor's indemnification obligations in the previous sentence, Licensee shall
defend, indemnify and hold Licensor, its Affiliates and authorized
representatives, and their respective directors, officers, stockholders,
employees and agents, harmless against all claims, suits, proceedings, costs,
damages and judgments incurred, claimed or sustained by third parties, whether
for personal injury or otherwise, arising out of Licensee's or any Authorized
Dealer's marketing, sale, or use of services under the Licensed Marks and shall
indemnify Licensor and the foregoing persons for all damages, losses, costs and
expenses (including reasonable attorneys' fees) arising out of such use, sale or
marketing and also for any improper or unauthorized use of the Licensed Marks or
any use of its own Marks. Licensee shall also defend, indemnify and hold
Licensor, its Affiliates and authorized representatives, and their respective
directors, officers, stockholders, employees and agents, harmless against all
claims, suits, proceedings, costs, damages, losses and expenses (including
reasonable attorneys' fees) and judgments incurred, claimed or sustained by
Licensor or such persons arising out of (i) any third party claims as to the
lack of validity or enforceability of (x) the registrations (if any) of the
Approved Licensee Marks or (y) Licensee's ownership rights in the Approved
Licensee Marks; and (ii) any lack of validity or enforceability of this
Agreement caused by Licensee.
12.2 Licensee shall maintain, at its own expense, in full force and effect
at all times during which Licensed Services bearing the Licensed Marks are being
sold, with a responsible insurance carrier acceptable to Licensor, at least a
Two Million Five Hundred Thousand Dollar ($2,500,000.00) products liability
insurance policy with respect to the Licensed Services offered under the
Licensed Marks. This insurance shall be primary to any of Licensor's coverage,
shall name Licensor as an insured party, shall be for the benefit of Licensor
and Licensee and shall provide for at least ten (10) days' prior written notice
to Licensor and Licensee of the cancellation or any substantial modification of
the policy. This insurance may be obtained for Licensor by Licensee in
conjunction with a policy which covers services and/or products other than the
services covered under this Agreement.
12.3 Licensee shall from time to time, upon reasonable request by Licensor,
promptly furnish or cause to be furnished to Licensor, evidence in form and
substance satisfactory to Licensor, of the maintenance of the insurance required
by Section 12.2, including without limitation, originals or copies of policies,
certificates of insurance (with applicable riders and endorsements) and proof of
premium payments.
13. CONSENT OF LICENSOR. Except where another standard is expressly
-------------------
provided for herein, whenever reference is made to Licensor's consent or
approval in this Agreement, such consent or approval may be granted or withheld
in Licensor's sole discretion and, if granted, may be done so conditionally or
unconditionally; provided, however, that such standard shall not be interpreted
-------- -------
by Licensor as justifying arbitrary rejection, but will connote a
reasonable application of judgment, taking into consideration Licensor's
licensing practices and customs in telecommunications licensing transactions.
14. NOTICES AND DEMANDS. All notices, requests, demands or other
-------------------
communications required by, or otherwise with respect to this Agreement shall be
in writing and shall be deemed to have been duly given to any party when
delivered personally (by courier service or otherwise), against receipt, when
delivered by telecopy and confirmed by return telecopy, or when actually
received when mailed by registered first-class mail, postage prepaid and return
receipt requested in each case to the applicable addresses set forth below: If
to Licensee:
TeleCorp PCS, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attn: General Counsel
Fax No: (▇▇▇) ▇▇▇-▇▇▇▇
If to Licensor:
AT&T Corp.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copies to:
AT&T Corp.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, General Attorney
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
AT&T Corp.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Secretary
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
AT&T Wireless Services Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address as such party shall have designated by notice so
given to each other party.
15. COMPLIANCE WITH LAW. Subject to the provisions of Section 9.4, nothing
-------------------
in this Agreement shall be construed to prevent Licensor or Licensee from
complying fully with all applicable laws and regulations, whether now or
hereafter in effect.
16. GOVERNMENTAL LICENSES, PERMITS, AND APPROVALS. Licensee, at its
---------------------------------------------
expense, shall be responsible for obtaining and maintaining all licenses,
permits and approvals which are required by all Regulatory Authorities with
respect to this Agreement, and to comply with any requirements of such
Regulatory Authorities for the registration or recording of this Agreement.
Licensee shall furnish to Licensor written evidence from such Regulatory
Authorities of any such licenses, permits, clearances, authorizations,
approvals, registration or recording.
17. APPLICABLE LAW; JURISDICTION. The construction, performance and
----------------------------
interpretation of this Agreement 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 Agreement to effectuate their original intent as
closely as possible. Except as otherwise provided herein, Licensor and Licensee
hereby irrevocably submit to the exclusive jurisdiction of the United States
District Court for the Southern District of New York, or absent subject matter
jurisdiction in that court, the state courts of the State of New York located in
New York County for all actions, suits or proceedings arising in connection with
this Agreement, and agree that any such action, suit or proceeding shall be
brought only in such courts (and waive any objection based on forum non
conveniens or any other objection to venue therein). Licensee and Licensor
hereby waive any right to a trial by jury.
18. CONFIDENTIALITY OF INFORMATION AND USE RESTRICTION. The Quality
--------------------------------------------------
Standards and other technical information furnished to Licensee under this
Agreement and other confidential and proprietary information, know-how and trade
secrets of Licensor that are disclosed or otherwise provided to Licensee in
connection with this Agreement, shall remain the property of Licensor, and shall
be returned to Licensor upon request and upon termination of this Agreement.
Unless such information was previously known to Licensee free of any obligation
to keep it confidential, or has been or is subsequently made public (a) by any
person other than Licensee and Licensor is not attempting to limit further
dissemination of such information, (b) by Licensor, or (c) by Licensee, as
required by law (including securities laws) or to enforce its rights under this
Agreement, it shall be held in confidence, and shall be used only for the
purposes of this Agreement. All confidential and proprietary information,
know-how and trade secrets of Licensee that are disclosed or otherwise provided
to Licensor hereunder (including without limitation, during any Inspection)
(collectively, "Licensee Information") shall remain the property of Licensee and
shall be returned to Licensee upon request and upon termination of this
Agreement. Unless such Licensee Information was previously known to Licensor
free of any obligation to keep it confidential, or has been or is subsequently
made public (a) by any person other than Licensor and Licensee is not attempting
to limit further dissemination of such information, (b) by Licensee, or (c) by
Licensor, as required by law (including securities law) or to enforce its rights
under this Agreement, it shall be held in confidence and shall be used only for
purposes of this Agreement.
19. MISCELLANEOUS.
-------------
19.1 Name, Captions. The name assigned this Agreement and the section
--------------
captions used herein are for convenience of reference only and shall not affect
the interpretation or construction hereof.
19.2 Entire Agreement. The provisions of this Agreement contain the entire
----------------
agreement between the parties relating to use by Licensee of the Licensed Marks,
and supersede all prior agreements and understandings relating to the subject
matter hereof. This Agreement shall be interpreted to achieve the objectives and
intent of the parties as set forth in the text and factual recitals of the
Agreement. It is specifically agreed that no evidence of discussions during the
negotiation of the Agreement, or drafts written or exchanged, may be used in
connection with the interpretation or construction of this Agreement. No rights
are granted to use the Licensed Marks or any other marks or trade dress except
as specifically set forth in this Agreement. In the event of any conflict
between the provisions of this Agreement and provisions in any other agreement
involving Licensee, the provisions of this Agreement shall prevail. This
Agreement is not a franchise under federal or state law, does not create a
partnership or joint venture, and shall not be deemed to constitute an
assignment of any rights of Licensor to Licensee. Licensee is an independent
contractor, not an agent or employee of Licensor, and Licensor is not liable for
any acts or omissions by Licensee.
19.3 Amendments, Waivers. This Agreement may not be amended, changed,
-------------------
supplemented, waived or otherwise modified except by an instrument in writing
signed by the party against whom enforcement is sought.
19.4 Specific Performance. The parties acknowledge that money damages are
--------------------
not an adequate remedy for violations of this Agreement and that any party may,
in its sole discretion, apply to the court set forth in paragraph 17 for
specific performance, or injunctive, or such other relief as such court may deem
just and proper, in order to enforce this Agreement or prevent any violation
hereof, and to the extent permitted by applicable law, each party waives any
objection to the imposition of such relief.
19.5 Remedies Cumulative. All rights, powers and remedies provided under
-------------------
this Agreement, or otherwise available in respect hereof at law or in equity
shall be cumulative and not alternative, and the exercise or beginning of the
exercise of any thereof by any party shall not preclude the simultaneous or
later exercise of any other such right, power or remedy by such party.
19.6 No Waiver. The failure of any party hereto to exercise any right,
---------
power or remedy provided under this Agreement, or otherwise available in respect
hereof at law or in equity, or to insist upon compliance by any other party
hereto with its obligations hereunder, and any custom or practice of the parties
at variance with the terms hereof, shall not constitute a waiver by such party
of its right to exercise any such or other right, power or remedy or to demand
such compliance.
19.7 No Third Party Beneficiaries. Except with respect to the persons
----------------------------
entitled to indemnification under Section 12.1, this Agreement is not intended
to be for the benefit of, and shall not be enforceable by any person or entity
who or which is not a party hereto.
19.8 Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one instrument. Each counterpart may consist of a
number of copies each signed by less than all, but together signed by all the
parties hereto.
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
executed in duplicate originals by its duty authorized representatives as of the
date first stated above.
AT&T CORP.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Assistant Secretary
Authorized Signatory
TELECORP PCS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President
SCHEDULE A
LICENSED LOGO
[LOGO APPEARS HERE]
AT&T
MEMBER
AT&T Wireless
Services
Network
Schedule B
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LICENSED TRADE DRESS
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1. The overall configurations of the AT&T and globe design corporate signature
as set forth more fully in the attached AT&T document Corporate Identity
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Program: Graphic Standards Manual ("Graphic Standards Manual"), and solely
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as expressed in the Licensed Logo set forth in Schedules A and E.
2. The acceptable color applications of the AT&T and globe design corporate
signature as set forth in the Graphic Standards Manual, and solely as
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expressed in the Licensed Logo set forth in Schedules A and E.
3. The acceptable graphic techniques relating to the AT&T and globe design
corporate signature as set forth in the Graphic Standards Manual, and
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solely as expressed in the Licensed Logo set forth in Schedules A and E.
4. The acceptable applications of the AT&T globe design corporate signature as
set forth in Schedule E.
5. Nothing in this Schedule shall restrict or limit AT&T's claim to trade
dress rights in or protection of AT&T's Trade Dress.
Schedule B1
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UNITED STATES SERVICE ▇▇▇▇ REGISTRATIONS OR APPLICATIONS
--------------------------------------------------------
Registration No. Registration Date
▇▇▇▇ (Application No.) (Application Date) Services
---- ----------------- ------------------ --------
AT&T and Globe 75/378,611 October 24, 1997 Telecommunication
Design/Member services, namely, the
AT&T Wireless mobile wireless
Services Network electronic
transmission of voice,
data, paging and
facsimile services;
electronic voice and
data messaging
services, namely, the
recording, storage,
and subsequent
wireless transmission
of voice and data
messages from and to
mobile wireless
telephones
Schedule C
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Initial Licensed Territory/1/
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I. From New Orleans MTA BTA Market Designator
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Baton Rouge, LA 32
Lafayette-New Iberia, LA ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ 320
II. From Houston, MTA
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Beaumont, TX 34
III. From St. Louis MTA
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Cape Giradeau-Sikeston, MO 66
▇▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇, ▇▇ ▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇-▇▇▇▇▇▇▇▇, ▇▇ 367
Rolla, MO 383
Portions of Springfield, MO BTA: ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
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/1/ The Company Territory is more particularly described in the FCC
applications filed in connection with the transfer of FCC PCS Licenses to
the Licensee.
Cedar County, MO
Dallas County, MO
▇▇▇▇▇▇▇ County, MO
Hickory County, MO
Laclede County, MO
Polk County, MO
Stone County, MO
Taney County, MO
Texas County, MO
▇▇▇▇▇▇▇ County, MO
▇▇▇▇▇▇ County, MO
West Plains, MO 470
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IV. From Little Rock MTA BTA Market Designator
-------------------- ---------------------
▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ 193
Joesboro-Paragould, AR ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ 348
Russellville, AR ▇▇▇
▇. ▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇ ▇▇▇
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Blytheville, AR 49
Dyersburg-Union City, TN ▇▇▇
▇▇▇▇▇▇▇, ▇▇ 211
Portions of Memphis, TN BTA: ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇▇ County, AR
St. ▇▇▇▇▇▇▇ County, AR
▇▇▇▇▇▇ County, MS
Coahoma County, MS
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DeSoto County, MS
Grenada County, MS
Lafayette County, ▇▇
▇▇▇▇▇▇▇▇ County, MS
Panola County, MS
Quitman County, MS
Tallahatchie County, ▇▇
▇▇▇▇ County, MS
Tunica County, MS
Yalobusha County, MS
Fayette County, TN
▇▇▇▇▇▇▇▇ County, TN
▇▇▇▇▇▇▇ County, TN
Lauderdale County, TN
Shelby County, TN
▇▇▇▇▇▇ County, TN
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VI. From Boston-Providence MTA BTA Market Designator
-------------------------- ---------------------
Boston, MA ▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
Hyannis, MA 201
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇
Portions of Worcester County, MA/2/ 480
VII. From Louisville-Lexington-Evansville MTA
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Evansville, IN BTA ▇▇▇
▇▇▇▇▇▇▇-▇▇▇▇▇▇-▇▇▇▇▇▇▇▇, ▇▇ BTA 339
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/2/ The portions of Worchester County are those to the east of the line
described by Points A, B and C on the map included in Schedule 2.1 to the
Securities Purchase Agreement.
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Schedule D
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TDMA QUALITY STANDARDS
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General Overview
This Schedule VII sets out the Network and Reporting Standards with which
Licensee shall comply pursuant to Section 8.2 of this Agreement. These
Standards set out the network performance metrics and the process by which such
metrics will be established, measured and reported. All metrics which represent
a defined standard of quality for acceptable network operations have, or will
have, specific targets which Licensee must comply with in accordance with the
following network standards.
I. NETWORK STANDARDS
There are three categories of Network Standards: network quality (the "Network
Quality Category"); system performance (the "System Performance Category"); and
audio quality (the "Audio Quality Category") (each hereafter referred to
generally as a "Category"). For each Category of Network Standards, specific
metrics have been identified to measure performance in each such Category. The
detailed description of how to measure and interpret the metrics for each
Category is set out in the following AWS documents (each referred to generally
as a "Network Standards Document"):
. Network Quality Category: Document ES-4034, Revision 1.1, dated July 30,
------------------------
1997 entitled "Network Quality Scorecard User Guide" (as referred to as the
"Network Quality Standards Document"). This document is a collection of key
network performance and traffic indicators (metrics) that are measured and
reported on a regular basis. Included in this category, Licensee shall
perform the ANS Consistency Test, as attached to this Schedule VII.
. System Performance Category: OSS draft document, Revision 0.7, dated June
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17, 1997 entitled "Key Metrics for System Performance Document" (as
referred to as the "System Performance Standards Document"). This document
identifies the network-wide key metrics for Ericsson and Lucent switching
systems, as well as cell sites, which will provide a high level assessment
of the system.
. Audio Quality Category: Document PP-4027E, Revision 1.1, dated May 30, 1996
----------------------
entitled "Audio Quality Measurement (AQM)" (as referred to as the "Audio
Quality Standards Document"). This document provides the basis for
assessing the quality of RF transmission by describing the standards for
performing audio quality measurements and the reporting of their results.
AWS measures the metrics for the Audio Quality Category using the "Radio
Quality Scorecard". The Radio Quality Scorecard is comprised of performance
statistics derived from driving the PCS system using the Buzzard tool or a
tool with similar measurement and reporting capability.
These Network Standards Documents are collectively attached to this Schedule VII
which, subject to the terms and conditions of this Agreement including, without
limitation, this Schedule VII, is hereby incorporated into and forms a part of
this Agreement. IN the event of any inconsistency between any part of a Network
Standards Document and the provisions of this Schedule VII, the provisions of
this Schedule VII shall govern.
Notwithstanding anything else in this Agreement including, without limitation,
this Schedule VII, the parties acknowledge and confirm that the Network
Standards Documents represent the standards and metrics currently identified by
AWS as applicable to each Category. Target values for key quality related
metrics are contained herein and Licensee agrees to comply with the specific
metric target values as specified in Schedule VII.
In addition, the parties acknowledge and confirm that the Network Standards
Documents are subject to revision and Licensee shall comply with subsequent
revisions to these Network Standards Documents, as well as with Call Center
Quality Standards which will constitute an additional Category once they are
formally implemented, in accordance with Section 8.2 of this Agreement.
Set out below is a brief description of each Category of Network Standard and
the currently established metrics for each such Category.
II. TARGETS FOR NETWORK STANDARDS
Licensee shall meet the following targets for key metrics which represent
overall network and system quality. These targets are subject to revision and
shall be implemented in accordance with Section 8.2 of this Agreement.
. % Established Calls: The percentage of call attempts to and from a mobile
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phone that result in a successful voice channel assignment. The target goal
for this metric is 93%.
. % Dropped Calls: The percentage of established calls, as defined below,
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which terminate abnormally. The target goal for this metric is a drop call
rate of 1.7% or less.
. % Handoff Failures: The target goal for this metric is a handoff failure
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rate of 1.5%.
. Failures per Erlang: The ratio of failed calls to carried traffic, where
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failed calls are measured utilizing switch counters for originating and
terminating traffic, and carried traffic is measured in erlangs. The target
goal for this metric is 1.68.
. Switch Outage Time: The amount of time (in minutes) in a month when
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subscribers are impacted by a cellular switch outage. Target for this
metric is 10 minutes per switch per year, with all ten minutes occurring in
the maintenance window between 12:00 am and 5:00 am.
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. % Blocking Cell Routes: Percentage of time all cellular traffic channels
----------------------
(voice paths in a trunk group) are unavailable within a given measurement
interval. Target for this metric is 5%.
. % Blocking Network Routes: Percentage of time all network traffic channels
-------------------------
are unavailable within the measurement interval. Target for this metric is
5%.
. ANS Consistency Test: The percentage of successful. ANS feature deliveries,
--------------------
based on the following sequence: feature activation/deactivation (when
applicable), test call, correct response, and call termination. The target
goal for this metric is 96% for all ANS features. This target metric
includes feature delivery failures due to call processing failures (i.e.
call delivery, call origination, handoff failures, or dropped calls. These
failures are estimated to be approximately 4%.)
III. REPORTING STANDARDS
Licensee agrees to comply with the reporting requirements as specified in the
Network Standards Documents and as specified below:
. Except as specified Audio Quality Network Standards, Licensee will submit
the metric reports required pursuant to this Schedule VII (the "Results")
to AWS no less than quarterly.
. With respect to Audio Quality Network Standards, Licensee shall only submit
quarterly Results for markets with 10,000 or more subscribers; for markets
with less than 10,000 subscribers, Licensee shall only submit Results on a
semi-annual basis.
. Licensee shall submit all Results by the fifteenth day of the month
following the end of the applicable reporting period.
. Licensee will report the Results to AWS on an aggregated national basis;
the aggregated national Results will reflect the distribution of the
metrics measured across Licensee's Territory. Licensee may also be required
to provide a breakdown, by market, of any metric.
-3-
AT&T Brand Values
Marketing, Advertising & Promotion Guidelines
The Licensed Logo as set forth in Schedules A and E should not be placed on any
content relating to or containing any of the following, unless it has redeeming
social value:
. Illegal activities
. Content which demeans, ridicules or attacks an individual or group
on the basis of age, color, national origin, race, religion, sex,
secular orientation, or handicap
. Pornographic, obscene or sexually explicit suggestive material or
content
. Material targeted to children, which is deemed to be obscene,
vulgar or pornographic
. Tobacco and/or alcoholic beverages
. Firearms/Ammunition/Fireworks
. Gambling
. Contraceptives
. Violence
. Vulgar/obscene language
. Solicitation of funds
Schedule E
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GUIDELINES FOR USE OF THE LICENSED LOGO
AND LICENSED PHRASE
-------------------
AT&T welcomes Members of the AT&T Wireless Services Network (Member) to use the
enclosed icon ("icon") and the expression "Member, AT&T Wireless Services
Network" (the "Expression") for their advertising and promotion needs.
There are only a few requirements to follow:
. The icon or the expression may never be used in connection with
services or products that are not provided or approved by AT&T in
accordance with the Network Membership License Agreement.
. Only authorized Members of the AT&T Wireless Services Network
marketing AT&T services under a written Network Membership
License Agreement may use the icon and the expression.
. The authorized member's identity or logo must be at least 3 times
the overall size of the icon; provided, however, for stationery
and business cards the authorized members identity or logo must
be at least 2 times the overall size of the icon.
. Use of the icon or expression must never give the impression that
the member is a part of AT&T.
. There must be a reference in the authorized member's advertising
body copy, to the extent that it refers to the nature, character
or quality of AT&T's service or network, that states the value,
quality, and reliability of AT&T's services and network.
. The icon must be used only as illustrated and specified in this
document. Do not alter the design in any way.
. The expression may not appear in type size or style that is
larger or more prominent than the largest or most prominent type
size or style of surrounding or accompanying text or body copy.
. Any misuse of the icon or the expression or misrepresentation of
the AT&T Member relationship may result in termination of
permission to use the icon and the expressions cancellation of
agreements between Member and AT&T, and/or additional legal
action.
For questions regarding the use of these materials please contact the AT&T
Corporate Identity Office, (▇▇▇) ▇▇▇-▇▇▇▇.
Permission to use the icon or the expression may not be granted to any
telecommunications aggregator or reseller.
For additional copies of this document call AT&T Corporate Identity at (973)
564-4942 or e-mail ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇.
The "icon" on disk
Always reproduce the icon so that it
appears with a solid white or black field.
See Illustrations.
There are two versions of the icon on the
disk. One is for larger size reproduction
(i.e., advertisements) and one is for smaller
sizes (i.e., stationery). It is important to use
the correct one because failing to do so will result in poor legibility.
Versions AW, AB, AWC and ABC are for larger than P in height. Versions BW, BB,
BWC and BBC are for 1" and smaller.
Legal Information:
1. Permission to use the icon and expression will not be granted to any
telecommunications aggregator or reseller.
2. Permission to use the icon and expression must be contained in a written
Network Membership License Agreement between AT&T and the entity using the
icon and expression.
3. The user of the icon and expression must abide by all terms and conditions
outlined in this document.
4. The icon or expression may never be used in connection with products or
services not provided by the representative through or approved by AT&T.
With respect to a specific AT&T service, a person or entity is a Member of
the AT&T Wireless Network for that specific service under these guidelines if
(1) the person or entity has executed a written contract with AT&T that
expressly grants that status for that service; and (2) the contract is in effect
and grants the right to use, in accordance with these guidelines and such other
limitations as are contained in the contract, AT&T's logo, signature and
trademarks as expressed in the icon and expression in connection with the
marketing, sale, or provision of that specific product or service. The written
contract may not alter these guidelines or grant more rights to use AT&T's logo,
signature and trademarks than are expressly set forth in these guidelines.
Furthermore, the authorization to use the AT&T logo, signature and trademarks
under these guidelines for a specific service does not allow use of the AT&T
logo, signature and trademarks for any other product or service.
Subscription to an AT&T tariffed service does not make the subscriber a
Member of the AT&T Wireless Services Network.
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Schedule F
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PERMITTED EVENTS
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1. Local community events, such as school athletic and cultural events or
other athletic events (e.g. corporate golf or tennis outings).
2. Local events held in conjunction with regionally or nationally recognized
organizations, such as Rotary International, Exchange Club, Heart
Association, Red Cross, Make-A-Wish Foundation, etc.
3. Events in support of major charitable institutions such as Children's
Hospitals, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Foundation, march of Dimes and so on.
4. Local trade shows, Chamber of Commerce events, educational business
seminars.
5. Licensee or authorized dealer store grand openings and kiosk sampling.