Exhibit 10.8
AMENDMENT NO. 5
TO
NETWORK MEMBERSHIP LICENSE AGREEMENT
AMENDMENT NO. 5 TO NETWORK MEMBERSHIP LICENSE AGREEMENT ("Amendment No.
5"), dated as of October 31, 2003, by and among AT&T Corp., a New York
corporation, with offices located at ▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, for itself and its affiliated companies (collectively, "Licensor"),
Triton PCS Operating Company L.L.C., a Delaware limited liability company, with
offices located at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Licensee") and AT&T
Wireless Services, Inc., a Delaware corporation with offices located at ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇.▇., ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("AWS"). 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 AWS 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,
Licensee 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; and
WHEREAS, Licensor, AWS and Licensee seek to extend the initial License
Agreement term for one (1) year, in lieu of renewing the License Agreement for
an additional five (5) year term as provided therein, and to provide for the
potential of additional one year terms thereafter pursuant to the terms and
conditions contained 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. 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 seven (7) years following such date ("initial term"), unless
terminated earlier pursuant to this Section 11. At the end of the initial term,
this Agreement shall automatically renew for successive additional one (1) year
terms ("One-Year Additional Terms") unless this Agreement is terminated by
Licensee or Licensor giving written notice to the other party (i) no later than
ninety (90) days prior to the end of the initial term; or (ii) during any one of
the One Year Additional Terms and no later than ninety (90) days prior to the
end of the then current One Year Additional Term. Licensor shall not give such
notice of termination, nor otherwise terminate this Agreement under the
foregoing sentence, unless requested to do so in writing by AWS; and if so
requested by AWS, in AWS' sole discretion, Licensor shall provide such timely
termination notice to Licensee and thereby terminate this Agreement.
Notwithstanding the foregoing, Licensor may provide such termination notice and
thereby terminate this Agreement, without AWS' request to do so if a Significant
Breach by Licensee has occurred and is continuing and Licensor notifies AWS of
its intent to pursue its remedies with respect thereto giving AWS an
opportunity, at AWS' sole discretion, to first help resolve Licensor's
concerns."
2. No Diminishment. Nothing in this Amendment No. 5 shall be
construed in any way to diminish or condition any of the rights or exclusivity
granted to AWS under the Brand License Agreement entered into between Licensor
and AWS on June 4, 2001, 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.
3. Severability of Provisions. Any provision of this Amendment
No. 5 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.
4. Agreement to Remain in Full Force and Effect. This Amendment
No. 5 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.
5. Headings. The headings in this Amendment No. 5 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. 5
or any provision hereof.
6. Counterparts. This Amendment No. 5 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. 5.
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7. Applicable Law; Jurisdiction. The construction, performance
and interpretation of this Amendment No. 5 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. 5 to effectuate
their original intent as closely as possible.
8. Other Agreements.
(a) All the Parties agree that no provision of this Amendment No.
5 shall be deemed an acknowledgement or agreement by Triton PCS Holdings,
Licensee or any of their affiliates that any of them 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. 5, 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]
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment No.
5 as of the date first above written.
AT&T CORP.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Assistant Secretary
TRITON PCS OPERATING COMPANY
L.L.C. (By Triton Management Company,
Inc., its manager)
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President,
Chief Financial Officer and
Secretary
AT&T WIRELESS SERVICES, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President Corporate
Development