Sprint Spectrum Trademark & Service Mark Lic. Agree

EXHIBIT 10.3


SPRINT SPECTRUM TRADEMARK AND
SERVICE MARK LICENSE AGREEMENT
------------------------------


THIS AGREEMENT is made as of the 22nd day of July, 1998, by and between Sprint Spectrum L.P., a Delaware limited partnership, as licensor ("Licensor"), and AirGate Wireless, L.L.C., a Delaware limited liability company as licensee ("Licensee"). The definitions for this agreement are set forth on the "Schedule
-------- of Definitions." --------------


RECITALS:


WHEREAS, Licensor is the owner of the U.S. trademarks and service marks "THE CLEAR ALTERNATIVE TO CELLULAR" and "EXPERIENCE THE CLEAR ALTERNATIVE TO CELLULAR TODAY" and such other marks as may be adopted and established from time to time and the goodwill of the business symbolized thereby; and


WHEREAS, Licensee desires to use the trademarks and service marks in commerce;


NOW, THEREFORE, the parties, in consideration of the mutual agreements herein contained and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, do hereby agree as follows:


ARTICLE 1
GRANT OF TRADEMARK AND SERVICE MARK RIGHTS; EXCLUSIVITY


Section 1.1. License.
-------


(a) Grant of License. Subject to the terms and conditions hereof,
----------------
Licensor hereby grants to Licensee, and Licensee hereby accepts from
Licensor, for the term of this agreement, a non-transferable, royalty-
free license to use the Licensed Marks solely for and in connection
with the marketing, promotion, advertisement, distribution, lease or
sale of Sprint PCS Products and Services and Premium and Promotional
Items in the Service Area.


(b) Related Equipment. The rights granted hereunder to Licensee shall not
-----------------
include the right to manufacture equipment under the Licensed Marks.
However, subject to the terms and conditions hereof, Licensor hereby
grants to Licensee, and Licensee hereby accepts from Licensor, for the
term of this agreement, a non-transferable, royalty-free license to
market, promote, advertise, distribute and resell and lease Related
Equipment in connection with the marketing, promotion, advertisement,
distribution, lease or sale by Licensee of Sprint PCS Products and
Services, and to furnish services relating to such Related Equipment
(including installation, repair and maintenance of Related Equipment),
under the Licensed Marks.


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ARTICLE 2
QUALITY STANDARDS, MAINTENANCE


Section 2.1. Maintenance of Quality.
----------------------


(a) Adherence to Quality Standards. In the course of marketing,
------------------------------
promoting, advertising, distributing, leasing and selling Sprint PCS
Products and Services and Premium and Promotional Items under the
Licensed Marks, Licensee shall maintain and adhere to standards of
quality and specifications that conform to or exceed those quality
standards and technical and operational specifications adopted and/or
amended in the manner provided below ("Quality Standards") and those
imposed by Law. Such Quality Standards are designed to ensure that the
quality of the Sprint PCS Products and Services and Premium and
Promotional Items marketed, promoted, advertised, distributed, leased
and sold under the Licensed Marks are consistent with the high
reputation of the Licensed Marks and are in conformity with applicable
Laws.


(b) Establishment of Quality Standards. The parties acknowledge that the
----------------------------------
initial Quality Standards for the Sprint PCS Products and Services and
Premium and Promotional Items are attached to the Management Agreement
as Exhibits 4.1, 4.2, 4.3, 7.2, and 8.1. The Quality Standards shall
(i) be consistent with the reputation for quality associated with the
Licensed Marks and (ii) be commensurate with a high level of quality
(taking into account Licensee's fundamental underlying technology and
standards), consistent with the level of quality being offered in the
market for products and services of the same kind as the Sprint PCS
Products and Services.


(C) Changes in Quality Standards. In the event that Licensor wishes to
----------------------------
change the Quality Standards, it will notify Licensee in writing of
such proposed amendments, and will afford Licensee a reasonable time
period in which to adopt such changes as may be required in order for
Licensee to conform to the amended Quality Standards.


Section 2.2. Rights of Inspection. In order to ensure that the Quality
-------------------- Standards are maintained, Licensor and its authorized agents and representatives shall have the right, but not the obligation, with prior notice to Licensee, to enter upon the premises of any office or facility operated by or for Licensee with respect to Sprint PCS Products and Services and Premium and Promotional Items at all reasonable times, to inspect, monitor and test in a reasonable manner facilities and equipment used to furnish Sprint PCS Products and Services and Premium and Promotional Items and, with prior written notice to Licensee, to inspect the books and records of Licensee in a manner that does not unreasonably interfere with the business and affairs of Licensee, all as they relate to the compliance with the Quality Standards maintained hereunder.


Section 2.3. Marking; Compliance with Trademark Laws. Licensee shall
--------------------------------------- cause the appropriate designation "(TM)" or "(SM)" or the registration symbol "(R)" to be placed adjacent to the Licensed Marks in connection with the use thereof and to indicate such additional information as Licensor shall reasonably specify from time to time concerning the license rights under which


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Licensee uses the Licensed Marks. Licensee shall place the following notice on all printed or electronic materials on which the Licensed Marks appear: "THE CLEAR ALTERNATIVE TO CELLULAR", "EXPERIENCE THE CLEAR ALTERNATIVE TO CELLULAR TODAY", and such other marks as may be adopted and established from time to time, are trademarks and/or service marks of Sprint Spectrum L.P., "used under license" or such other notice as Licensor may specify from time to time.


Section 2.4. Other Use Restrictions. Licensee shall not use the Licensed
---------------------- Marks in any manner that would reflect adversely on the image of quality symbolized by the Licensed Marks.


ARTICLE 3
CONFIDENTIAL INFORMATION


Section 3.1. Maintenance of Confidentiality. Each of Licensor and
------------------------------ Licensee and their respective Controlled Related Parties (each a "Restricted Party") shall cause their respective officers and directors (in their capacity as such) to, and shall take all reasonable measures to cause their respective employees, attorneys, accountants, consultants and other agents and advisors (collectively, and together with their respective officers and directors, "Agents") to, keep secret and maintain in confidence the terms of this agreement and all confidential and proprietary information and data of the other party or its Related Parties disclosed to it (in each case, a "Receiving Party") in connection with the performance of its obligations under this agreement (the "Confidential Information") and shall not, and shall cause their respective officers and directors not to, and shall take all reasonable measures to cause their respective other Agents not to, disclose Confidential Information to any Person other than the parties, their Controlled Related Parties and their respective Agents that need to know such Confidential Information. Each party further agrees that it shall not use the Confidential Information for any purpose other than determining and performing its obligations and exercising its rights under this agreement. Each party shall take all reasonable measures necessary to prevent any unauthorized disclosure of the Confidential Information by any of their respective Controlled Related Parties or any of their respective Agents. The measures taken by a Restricted Party to protect Confidential Information shall be not deemed unreasonable if the measures taken are at least as strong as the measures taken by the disclosing party to protect such Confidential Information.


Section 3.2. Permitted Disclosures. Nothing herein shall prevent any
--------------------- Restricted Party or its Agents from using, disclosing, or authorizing the disclosure of Confidential Information it receives and which:


(i) has been published or is in the public domain, or which subsequently
comes into the public domain, through no fault of the receiving party;


(ii) prior to receipt hereunder was property within the legitimate
possession of the Receiving Party or, subsequent to receipt hereunder
is lawfully received from a third party having rights therein without
restriction of the third party's right to disseminate the Confidential
Information and without notice of any restriction against its further


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disclosure.


(iii) is independently developed by the Receiving Party through Persons who
have not had, either directly or indirectly, access to or knowledge
of such Confidential Information;


(iv) is disclosed to a third party with the written approval of the party
originally disclosing such information, provided that such
--------
Confidential Information shall cease to be confidential and
proprietary information covered by this agreement only to the extent
of the disclosure so consented to;


(v) subject to the Receiving Party's compliance with Section 3.4 below,
is required to be produced under order of a court of competent
jurisdiction or other similar requirements of a governmental agency,
provided that such Confidential Information to the extent covered by
--------
a protective order or its equivalent shall otherwise continue to be
Confidential Information required to be held confidential for purpose
of this agreement; or


(vi) subject to the Receiving Party's compliance with Section 3.4 below,
is required to be disclosed by applicable Law or a stock exchange or
association on which such Receiving Party's securities (or those of
its Related Party) are listed.


Section 3.3. Financial Institutions. Notwithstanding this Article 3, any
---------------------- party may provide Confidential Information to any financial institution in connection with borrowings from such financial institution by such party or any of its Controlled Related Parties, so long as prior to any such disclosure such financial institution executes a confidentiality agreement that provides protection substantially equivalent to the protection provided the parties in this Article 3.


Section 3.4. Procedures. In the event that any Receiving Party (i) must
---------- disclose Confidential Information in order to comply with applicable Law or the requirements of a stock exchange or association on which such Receiving Party's securities or those of its Related Parties are listed or (ii) becomes legally compelled (by oral questions, interrogatories, requests for information or documents, subpoenas, civil investigative demand or otherwise) to disclose any Confidential Information, the Receiving Party shall provide the disclosing party with prompt written notice so that in the case of clause (i), the disclosing party can work with the Receiving Party to limit the disclosure to the greatest extent possible consistent with legal obligations or in the case of clause (ii), the disclosing party may seek a protective order or other appropriate remedy or waive compliance with the provisions of this agreement. In the case of a clause (ii), (A) if the disclosing party is unable to obtain a protective order or other appropriate remedy, or if the disclosing party so directs, the Receiving Party shall, and shall cause its employees to, exercise all commercially reasonable efforts to obtain a protective order or other appropriate remedy at the disclosing party's reasonable expense, and (B) failing the entry of a protective order or other appropriate remedy or receipt of a waiver hereunder, the Receiving Party shall furnish only that portion of the Confidential Information which it is advised by opinion of its


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counsel is legally required to be furnished and shall exercise all commercially reasonable efforts to obtain reliable assurance that confidential treatment shall be accorded such Confidential Information, it being understood that such reasonable efforts shall be at the cost and expense of the disclosing party whose Confidential Information has been sought.


Section 3.5. Survival. The obligations under this Article 3 shall
-------- survive, as to any party, until two (2) years following the date of termination of this agreement, and, as to any Controlled Related Party of a party, until two (2) years following the earlier to occur of (A) the date that such Person is no longer a Controlled Related Party of a party, or (B) the date of the termination of this agreement; provided that such obligations shall continue indefinitely
-------- with respect to any trade secret or similar information which is proprietary to a party or its Controlled Related Parties and provides such party or its Controlled Related Parties with an advantage over its competitors.


ARTICLE 4
REPRESENTATIONS, WARRANTIES AND COVENANTS OF LICENSEE


Section 4.1. Licensor's Ownership. Licensee acknowledges Licensor's
-------------------- exclusive right, title and interest in and to the Licensed Marks and acknowledges that nothing herein shall be construed to accord to Licensee any rights in the Service Area in the Licensed Marks except as expressly provided, herein. Licensee acknowledges that its use in the Service Area of the Licensed Marks shall not create in Licensee any right, title or interest in the Service Area in the Licensed Marks and that all use in the Service Area of the Licensed Marks and the goodwill symbolized by and connected with such use of the Licensed Marks will inure solely to the benefit of the Licensor.


Section 4.2. No Challenge by Licensee. Licensee covenants that (i)
------------------------ Licensee will not at any time challenge Licensor's rights, title or interest in the Licensed Marks (other than to assert the specific rights granted to Licensee under this agreement), (ii) Licensee will not do or cause to be done or omit to do anything, the doing, causing or omitting of which would contest or in any way impair or tend to impair the rights of Licensor in the Licensed Marks, and (iii) Licensee will not represent to any third party that Licensee has any ownership or rights in the Service Area with respect to the Licensed Marks other than the specific rights conferred by this agreement.


ARTICLE 5
REPRESENTATIONS, WARRANTIES AND COVENANTS OF LICENSOR


Section 5.1. Title to the Licensed Marks. Licensor represents and
--------------------------- warrants that:


(a) Licensor has good title to the Licensed Marks and has the right to
grant the licenses provided for hereunder in accordance with the terms
and conditions hereof, free of any liabilities, charges, liens,
pledges, mortgages, restrictions, adverse claims, security interests,
rights of others, and encumbrances of any kind (collectively,


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"Encumbrances"), other than Encumbrances which will not restrict or
interfere in any material respect with the exercise by Licensee of the
rights granted to Licensee hereunder.


(b) There is no claim, action, proceeding or other litigation pending or,
to the knowledge of Licensor, threatened with respect to Licensor's
ownership of the Licensed Marks or which, if adversely determined,
would restrict or otherwise interfere in any material respect with the
exercise by Licensee of the rights purported to be granted to Licensee
hereunder.


Except as expressly provided above in this Section 5.1, Licensor makes no repres ...