Network Membership License Agreement

EXHIBIT 10.4.1



EXECUTION COPY









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AT&T WIRELESS SERVICES

NETWORK MEMBERSHIP LICENSE AGREEMENT

AT&T CORP.

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 - ---------



Schedule A Licensed Logo Schedule B Licensed Trade Dress Schedule B I United States Service Mark 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 32 Avenue of the Americas, New York, New York 10013, 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 1110 N. Glebe Road, Arlington, Virginia 22201 ("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

----------- 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 Bell 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.



"Mark": Any name, brand, mark, trademark, service mark, sound mark, 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

---------------- 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

----------------------------- 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 Mark or any other Mark 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

----------- 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

-------------------------------------- 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

----------------------- 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

----------------------- 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 Mark 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 Mark 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

---------------- under the Approved Licensee Marks, together with the Licensed Marks, all in accordance with guide ...