EXHIBIT 10.9.2
FOURTH ADDENDUM TO OPERATING AGREEMENT
This Fourth Addendum to the Operating Agreement (the "OA"), between AT&T
Wireless Services, Inc. and its Affiliates ("AWS") and Xxxxxx Cellular Systems,
Inc. and its Affiliates ("Xxxxxx"), is entered into as of July 11, 2003 (the
"Effective Date") by and between AWS and Xxxxxx (collectively the "Parties" and
each individually a "Party"). This Addendum also is intended to be binding upon,
and is entered into by the Parties on behalf of, the XxXxx Parties and the
Company Parties (as the case may be) that receive and provide service pursuant
to the OA.
The parties hereby acknowledge that they have entered into two Addenda that were
both titled as Number 3, the first of which was entered into as of December 16,
2002, and the second which was entered into as of June 17, 2003. This Addendum
supersedes (a) the Addendum to Operating Agreement, entered into as of January
16, 1999, (b) the Second Addendum to Operating Agreement, entered into as of
January 1, 2002, and (c) the Third Addendum to Operating Agreement, entered into
as of December 16, 2002. For avoidance of doubt, the Parties hereby agree that
Addendum No. 3 to Operating Agreement, entered into as of June 17, 2003, is not
superseded by this Addendum and shall be read in conjunction with this Addendum;
provided, however, that with respect to the * per minute rate reduction
contained in such Addendum No. 3, the rate reduction shall apply to the rates
set forth below.
Unless otherwise defined herein, all capitalized terms used in this Addendum
shall have the meaning given such terms in the OA.
Exhibit C - Service Charges is modified as follows:
(a) Rates for Contract Years 1-3--Table Rates:
XXXXXX CHARGES AWS RATE AWS CHARGES XXXXXX RATE
PERIOD (INCLUSIVE OF TOLL)* (INCLUSIVE OF TOLL)*
------ ----------------------- -----------------------
July 1, 2003 - June 30, 2004 * *
July 1, 2004 - June 30, 2005 * *
July 1, 2005 - June 30, 2006 * *
July 1, 2006 - June 30, 2007 * *
July 1, 2007 - June 30, 2008 * *
* Rates apply to domestic calls only. International toll shall be billed on a
pass through basis.
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* Confidential information has been omitted and filed separately with the
Securities and Exchange Commission.
The Parties agree that it may be necessary as a result of billing
system constraints to assess a separate charge for toll minutes and
perform a true up for any resulting over charges. In the event this is
necessary, the Parties agree to follow the process and time frames
outlined in the OA.
(b) Rates for Contract Years 4-5
(i) Negotiated Rates. At any time during the third quarter of
Contract Year 3, Xxxxxx may (but shall not be obligated to) initiate,
by notice to AWS, a 30-day period of roaming rate and exclusivity
negotiations, provided, that such 30-day period must be commenced and
completed within the third quarter of Contract Year 3. If negotiations
are initiated by Xxxxxx, both Parties will negotiate in good faith to
seek to agree on fair and reasonable TDMA roaming rates and exclusivity
provisions for Contract Years 4 and 5.
(ii) Formula Rates. If Xxxxxx initiates the negotiation
contemplated in clause (b)(i) and the Parties do not agree on TDMA
roaming rates and exclusivity provisions for Contract Years 4 and 5
during the aforementioned 30-day period, AWS will deliver to Xxxxxx,
within 30 days following the end of the third quarter of Contract Year
3, its calculation of the Formula Rates for the 12-month period ending
at the end of the third quarter of Contract Year 3. Within ten business
days after receipt of such calculation, Xxxxxx will notify AWS whether
it elects to have such Formula Rates (or, if lower, the Table Rates for
Contract Year 4) apply to Contract Year 4. If Xxxxxx so elects, then
(x) the Formula Rates (as set forth in the aforementioned calculation)
or, if lower, the Table Rates for Contract Year 4 will apply to
Contract Year 4, (y) the Formula Rates (as determined pursuant to the
definitions of ARPMin) or, if lower, the Table Rates for Contract Year
5 will apply to Contract Year 5 and (z) the exclusivity obligations of
AWS set forth below will continue in effect during Contract Years 4 and
5, subject to the terms and conditions of the OA and the Addenda.
(iii) Table Rates. If either (x) Xxxxxx does not initiate
negotiations pursuant to clause (b)(i) or (y) Xxxxxx initiates the
negotiation of rates and exclusivity, the Parties are unable to agree
upon new rates or exclusivity, and Xxxxxx elects not to apply the
Formula Rates to Contract Year 4 (or fails to make a timely election),
then (A) the Table Rates for Contract Year 3 will apply to Contract
Years 4 and 5 and (B) the exclusivity obligations of AWS set forth
below will terminate at the end of Contract Year 3.
(c) Definitions
"ARPMin" means, with respect to any 12-month period, a rate
per minute calculated by dividing AWS gross revenue for the immediately
preceding 12-month period by AWS billed minutes for the immediately
preceding 12-month period; provided that in no event shall such rate
per minute fall below *. For purposes of such definition, AWS gross
revenue includes all AWS revenue except outcollect revenue and
equipment revenue; and AWS billed minutes includes all home MOUs and
incollect MOUs.
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* Confidential information has been omitted and filed separately with the
Securities and Exchange Commission.
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"Formula Rate" means with respect to TDMA roaming, a rate per
minute equal to.*
Notwithstanding the foregoing, Xxxxxx hereby agrees that, during the period
beginning on July 1, 2003 and ending on June 30, 2008, it will charge AWS *for
all roaming traffic carried in the service area that would have existed had the
cell sites set forth on Attachment 1 attached hereto and relating to the MD-2
RSA, AZ-1A RSA and TX-16 RSA markets been constructed.
Additional Terms:
Definitions
"Xxxxxx Markets" means those markets listed on Exhibit A to the OA.
"Fair Market Value" means, with respect to any asset, as of the date of
determination, the cash price at which a willing seller would sell and a willing
buyer would buy such asset in a transaction negotiated at arm's length, each
being apprised of and considering all relevant facts, circumstances and factors,
and neither acting under compulsion, with the parties being unaffiliated third
parties acting without time constraints.
"Licensed Pops" means, with respect to any person in any market, Pops
covered by any FCC license authorizing such person to provide mobile wireless
communications services in such market.
"Overlap Markets" means those portions of the Xxxxxx Markets in which,
after giving effect to a Competitive Transaction, the Surviving Entity or its
controlled affiliates own, manage, operate or control Competitive Systems that
provide mobile wireless communications services.
"Overlap Pops" means the Licensed Pops of Xxxxxx in any Overlap
Markets.
"Pops" means, with respect to any licensed area, the residents of such
area based on the most recent publication by Claritas Inc.
"Surviving Entity" means, with respect to a Competitive Transaction,
the surviving entity or other person that as a result of such Competitive
Transaction owns, manages, operates, or controls Competitive Systems.
"Transaction Pops" means the Licensed Pops in the markets that are
acquired by the Surviving Entity in a Competitive Transaction.
Exclusivity
(a) Except for the AWS cell sites that, as of the date hereof, currently
serve customers in the Xxxxxx markets set forth on Exhibit A to the OA
and except as provided for under the Rates section (b)(iii) above, for
five years from the date of this Addendum, AWS shall
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* Confidential information has been omitted and filed separately with the
Securities and Exchange Commission.
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not, and shall cause its controlled Affiliates not to, directly or
indirectly, alone or jointly with any other person or entity, acquire
or hold an ownership interest in, manage, operate, control or otherwise
engage in, a business that provides or resells, or a license that
facilitates or enables the provision or resale of facilities-based
mobile wireless services using TDMA or analog cellular technology on
any spectrum in any Xxxxxx Market (such services being referred to
herein as "Competitive Services").
(b) Notwithstanding the provisions of paragraph (a) above, AWS and its
Affiliates may:
(i) acquire and hold FCC licenses and mobile wireless
telecommunications facilities so long as they are not being used
(except for de minimis use) to provide or resell facilities-based
mobile wireless services using any spectrum in any Xxxxxx Market;
(ii) acquire and hold ownership interests in any person (x)
that is not an Affiliate of AWS, (y) to which AWS and its controlled
Affiliates do not direct roaming traffic (in respect of Competitive
Services) on a priority basis with respect to Xxxxxx and its
subsidiaries and (z) that does not market Competitive Services (on a
primary basis, tagline basis or otherwise) under the "AT&T Wireless"
brand or any similar or successor brand used by AWS or its Affiliates
on a substantially national basis;
(iii) subject to the provisions of the following sentence,
acquire, hold, maintain and renew FCC licenses and mobile wireless
telecommunications facilities, to the extent necessary or advisable to
maintain and renew such licenses, including compliance with the
construction requirements, and satisfaction of the substantial service
requirement for license renewal expectancy, of applicable FCC rules,
and Xxxxxx shall cooperate with AWS, at AWS's request and expense, in
connection therewith. AWS will give Xxxxxx reasonable advance written
notice of deadlines relating to construction and substantial service
requirements with respect to each license held by AWS or its
subsidiaries in the Territory. Xxxxxx will have 15 days from receipt of
any such notice to elect in writing to comply with such requirements on
behalf of AWS. If Xxxxxx makes such election with respect to a license,
the parties shall promptly execute and deliver mutually satisfactory
agreements providing for such compliance, in substantially the form of
comparable agreements that previously have been entered into by the
parties or their respective affiliates; and
(iv) enter into a Competitive Transaction in accordance with
paragraph (c) below.
(c) AWS and its Affiliates may enter into a merger, consolidation,
joint venture, purchase, investment, exchange or sale of assets, issuance or
sale of securities, or other business combination transaction, with a person
unaffiliated with AWS, that results in the Surviving Entity or its controlled
affiliates owning, managing, operating or controlling systems providing
Competitive Services in one or more of the Xxxxxx Markets ("Competitive
Systems") (any such transaction, subject to the next sentence, being referred to
as a "Competitive Transaction"); provided, that (i) upon consummation of the
Competitive Transaction, the number of Overlap
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Pops is less than *of the number of Transaction Pops or (ii) within 180 days
following consummation of the Competitive Transaction, the Surviving Entity and
its controlled affiliates shall have ceased to own, manage, operate or control
sufficient Competitive Systems such that the number of Overlap Pops is then less
than *% of the number of Transaction Pops. AWS will not expand, within the
Xxxxxx Markets, the footprint of any Competitive System that it retains.
Term:
The first sentence of Section 12.1 of the OA is deleted in its entirety and
replaced with the following sentence:
"This Agreement shall have a term commencing on the Effective Date and
continuing until June 30, 2008."
Neither Party will charge for incomplete calls, busy calls, 611 calls, feature
activations or interconnection fees. All minutes billed in full minute
increments, partial minute rounded up to next full minute.
Nothing in the OA, or this Addendum, shall be construed to prevent either Party
from providing Service to its Customers utilizing a System operated by a Party.
Except as specifically set forth here, the OA is not amended or modified in any
respect and shall continue in full force and effect.
[SIGNATURE PAGE IS THE NEXT PAGE.]
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* Confidential information has been omitted and filed separately with the
Securities and Exchange Commission.
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AT&T WIRELESS SERVICES, INC.
By: /s/ XXXX XXXXXXX
-------------------------
Name:
-----------------------
Title:
----------------------
Date: July 11, 2003
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XXXXXX CELLULAR SYSTEMS, INC.
By: /s/ XXXXXXX X. XXXXXX
-------------------------
Name:
-----------------------
Title:
----------------------
Date: July 11, 2003
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Signature page to Fourth Addendum to
Operating Agreement between AWS and
Xxxxxx, entered into as of July 11, 2003
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Attachment 1 to Fourth Addendum to
Operating Agreement
MARKET SITE LAT LONG HEIGHT AREA
------ ------------ ---------- ----------- ------ ------------------
TX-16 SNANTXS168 29.6297472 -97.4559278 250 I-10 SA to Houston
TX-16 SNANTXS169 29.6761694 -97.2995167 220 I-10 SA to Houston
TX-16 932008046A01 29.7004830 -97.1131580 000 X-00 XX xx Xxxxxxx
XX-00 000000000X00 29.6933333 -97.0108333 000 X-00 XX xx Xxxxxxx
XX-00 000000000X00 29.6955000 -96.8574444 172 I-10 SA to Houston
Note: Goal is to cover TX-16 between San Antonio and Houston
RADIATION
MARKET SITE ID LAT_DED LONG_DED CENTER (FT) LOCATION
------ ---------- --------- ----------- ----------- -------------------
AZ-1 PHNXAZFS98 34.724056 -114.434583 000 X00 Xxxx xx Xxxxxxx
XX-0 XXXXXXXX00 34.729194 -114.309056 000 X00 Xxxx xx Xxxxxxx
XX-0 XXXXXXXX00 34.772389 -114.187917 000 X00 Xxxx xx Xxxxxxx
XX-0 XXXXXXXX00 34.858056 -114.140556 000 X00 Xxxx xx Xxxxxxx
XX-0 XXXXXXXX00 35.023250 -114.134500 160 I10 West of Kingman
AZ-1 PHNXAZFS14 35.150000 -114.097778 160 Kingman/I10
AZ-1 PHNXAZFS15 35.197139 -114.041472 160 Kingman/I10
AZ-1 PHNXAZFS16 35.201917 -113.912861 110 Kingman/I10
AZ-1 PHNXAZFS27 35.246833 -114.040000 100 Kingman
AZ-1 PHNXAZFS17 35.180833 -113.796111 000 X00 Xxxx xx Xxxxxxx
XX-0 XXXXXXXX00 35.163722 -113.608972 000 X00 Xxxx xx Xxxxxxx
XX-0 XXXXXXXX00 35.191556 -113.446472 000 X00 Xxxx xx Xxxxxxx
XX-0 XXXXXXXX00 35.204111 -113.359944 000 X00 Xxxx xx Xxxxxxx
XX-0 XXXXXXXX00 35.075917 -110.839111 175 I10 East of Kingman
Note: Goal is to cover AZ-1 in Mohave County.
MARKET BECHTEL RING LAT LONG AREA RING #
------ ------------ ------- -------- -------------- ------
MD-2 910022015 38.3278 -75.1094 Xxxxx Xxxx, XX 00000
MD-2 910022018 38.3814 -75.1753 Xxxxx Xxxx, XX 00000
MD-2 910022021 38.3507 -75.0768 Xxxxx Xxxx, XX 00000
MD-2 910022025 38.4444 -75.0547 Xxxxx Xxxx, XX 00000
MD-2 910022041 38.4111 -75.0611 Xxxxx Xxxx, XX 00000
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