Exhibit 10(i)(4.1)
EXECUTION COPY
AGREEMENT AND AMENDMENT NO. 1
TO OPERATING AGREEMENT OF CINCINNATI XXXX WIRELESS LLC
This AGREEMENT AND AMENDMENT NO. 1 (this "Amendment"), dated as of October
16, 2003, to the Operating Agreement (the "Agreement") of CINCINNATI XXXX
WIRELESS LLC (the "Company"), dated as of December 31, 1998, between AT&T
WIRELESS PCS, LLC, a Delaware limited liability company ("AT&T PCS"), as
successor to AT&T Wireless PCS, Inc., and CINCINNATI XXXX WIRELESS HOLDINGS LLC,
a Delaware limited liability company ("CBW"), as successor in interest to
Cincinnati Xxxx Wireless Company. Capitalized terms used but not defined in this
Amendment have the meanings given to them in the Agreement.
WHEREAS, AT&T PCS is a wholly-owned subsidiary of AT&T Wireless Services,
Inc., a Delaware corporation ("AT&T");
WHEREAS, AT&T and the Company have entered into a GSM roaming agreement;
WHEREAS, the parties intend that the Company construct and operate a PCS
System using GSM/GPRS technology; and
WHEREAS, the parties wish to reflect that intent, and make various
amendments to the Agreement;
NOW, THEREFORE, in consideration of the mutual promises, covenants and
other agreements contained herein, the parties hereby agree as follows:
A. AMENDMENTS TO THE AGREEMENT.
1. The definitions in Section 1.7 of the Agreement are amended as follows:
1.1. The definition of "AT&T" is replaced with the following: "AT&T" means
AT&T Wireless Services, Inc., a Delaware corporation, as successor to
AT&T Corp., a New York corporation.
1.2. The definition of "AT&T PCS" is replaced with the following: "AT&T
PCS" means AT&T Wireless PCS, LLC, a Delaware limited liability
company, as successor to AT&T Wireless PCS, Inc., a Delaware
corporation.
1.4. The definition of "Business" is replaced with the following:
"Business" means the business of (a) owning, constructing and
operating systems to provide Company Communications Services in the
Territory, using the PCS frequencies licensed to or leased by the
Company for Commercial Mobile Radio Services, (b) marketing and
providing Company Communications Services to resellers and end-users
solely within the Territory, (c) providing in connection with Company
Communications Services the Adopted Service Features as well as other
mobile and portable communications services in the Territory and local
exchange services provided by CBI and it Affiliates, in each case
obtained by the Company as a reseller or provided by others but
combined in a joint offering by the Company with its Company
Communications Services and, with the consent of all of the
Representatives on the Member Committee, providing other voice,
messaging and data communications services and (d) owning and
operating retail stores that offer for sale the above services and
related equipment. The activities described in clauses (a) and (b)
shall be the indispensable requisite, and primary business, of the
Company.
1.5 The definition of "CBW" is replaced with the following: "CBW" means
Cincinnati Xxxx Wireless Holdings LLC, a Delaware limited liability
company, as successor to Cincinnati Xxxx Wireless Company, an Ohio
corporation.
1.6 The definition of "Company" is replaced with the following: "Company"
means Cincinnati Xxxx Wireless LLC.
1.7 The following definitions are added:
"GPRS" means General Packet Radio Service, a wireless communications
technology based on GSM and defined by the relevant ETSI or 3GPP
standards.
"GSM" means Global System for Mobile communication, a wireless
communications technology defined by the relevant ETSI or 3GPP
standards.
"GSM Roaming Agreement" means the Roaming Agreement for GSM, dated as
of April 25, between AT&T and the Company.
"GSM/GPRS" means a wireless communications technology that combines
GSM for voice communications and GPRS for data communications.
"GSM/GPRS System" means a mobile wireless telecommunications system
that uses GSM/GPRS.
"Majority" means, as of any date of determination, with respect to
AT&T's GSM/GPRS Systems, AT&T GSM/GPRS Systems then serving a majority
of the Pops served by all such systems.
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"Pops" means with respect to any distinct geographic area, the number
of residents of such area based on the most recent publication by
Claritas Inc. or any other publication agreed upon by the parties
hereto and accepted for such purpose within the telecommunications
industry.
2. Section 6.10 is amended by changing the CBW Member Group First Tier
Executive to Xxxxx Xxxxxxxx, the Second Tier Executive to Xxxxx Xxxx, and
the Third Tier Executive to Xxxx X. Xxxxxxx.
3. Section 6.12(f) is replaced with the following:
(f) Long Distance Services. Subject to the Company's existing volume
commitments to AT&T and AT&T Corp., the Company shall offer CBI and any of
its affiliates a right of first refusal to provide interstate and
intrastate long distance services to the Company; provided that the rates
offered by CBI are competitive with those available from other long
distance providers and are at least as favorable to the Company in the
aggregate as those provided by CBI to CBI's other comparable wireless
customers.
4. The following new subsections are added to Section 6.12:
(h) GSM Buildout. By November 1, 2003 (the "Roaming Start Date"), the
Company will (i) complete the build-out of a GSM/GPRS System including
approximately 250 GSM base stations (and associated switching, transport
and billing infrastructure) and providing comprehensive one-for-one GSM
coverage relative to the Company's existing TDMA footprint in the Territory
and (ii) provide GSM/GPRS roaming service in the Territory to subscribers
of AT&T pursuant to the GSM Roaming Agreement. Within 120 days of the
Roaming Start Date, the Company will begin selling GSM/GPRS service to
customers in the Territory.
(i) GSM Interoperability. The Company shall at all times that the GSM
Roaming Agreement is still in effect cause its GSM/GPRS Systems to be
technologically compatible in all material respects with AT&T's GSM/GPRS
Systems (including with respect to facilitating roaming and handover
between systems). Without limiting the generality of the foregoing, the
Company shall at all times cause its GSM/GPRS Systems to use substantially
the same User Interface for voice used in AT&T's GSM/GPRS Systems, so that
the User Interface of the Company's GSM/GPRS Systems for voice shall not
differ, in a manner that would be material to subscribers, from the User
Interface of AT&T's GSM/GPRS Systems. AT&T PCS may from time to time notify
the Company of changes to the User Interface or other elements of AT&T's
GSM/GPRS Systems, and the Company shall, promptly and in no event later
than 120 days after delivery of any such notice, or such longer period as
AT&T PCS may determine, implement such changes in the Company's GSM/GPRS
Systems. As used in this Section 6.12(i), the term "User Interface" shall
have the same meaning given to it
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in Section 1.7, except that all references to PCS Systems shall instead
refer only to GSM/GPRS Systems.
(j) GSM Network Performance Standards. The Company shall cause its
GSM/GPRS Systems to comply with the network performance standards set forth
on Schedule 6.12(j) at a level of compliance at least equal to the average
level of compliance of AT&T's GSM/GPRS Systems. AT&T PCS may from time to
time notify the Company of new or modified network performance standards
(including voice standards for comprehensive digital accessibility,
comprehensive retainability, digital voice quality, and data standards for
GPRS availability, successful data transfer ratio and throughput) met by a
Majority of AT&T's GSM/GPRS Systems, and the Company shall, promptly and in
no event later than 120 days after delivery of any such notice, or such
longer period as AT&T PCS may determine, cause the Company's GSM/GPRS
Systems to comply substantially with such new or modified standards.
(k) GSM Core Features and Services. The Company's GSM/GPRS Systems
shall offer the core features and services set forth on Schedule 6.12(k).
AT&T PCS may from time to time notify the Company of new or modified core
features or services provided to subscribers in a Majority of AT&T's
GSM/GPRS Systems, and the Company shall, promptly and in no event later
than 120 days after delivery of any such notice, or such longer period as
AT&T PCS may determine, cause the Company's GSM/GPRS Systems to provide
such new or modified core features and services. AT&T PCS acknowledges that
the Company, in its sole discretion, may cause the Company's GSM/GPRS
Systems to provide such other features and services as the Company may
determine from time to time and that the Company has sole and exclusive
control over the rates it charges for all features and services.
5. Section 6.16 of the Agreement is deleted and replaced with the following:
6.16 GSM Preference. AT&T PCS and its Affiliates shall to the extent
technologically feasible cause substantially all of their GSM/GPRS
subscribers, when roaming in the Territory, to seek service (as roamers)
from the Company's GSM/GPRS System prior to seeking service from the
GSM/GPRS System operated by any carrier other than AT&T PCS or its
Affiliates, provided that the Company is then operating such GSM/GPRS
Systems in compliance with Sections 6.12(i)-(k) and provided that the GSM
Roaming Agreement is still in effect. The Company shall to the extent
technologically feasible cause substantially all of its GSM/GPRS
subscribers, when roaming in any service area outside the Territory, to
seek service (as roamers) from the GSM/GPRS System (if any) operated in
such service area by AT&T PCS or its Affiliates prior to seeking service
from the GSM/GPRS System operated by any carrier other than the Company and
its Affiliates.
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6. Section 10.8 of the Agreement is amended by replacing the notice addresses
for AT&T PCS and the CBW Member Group with the following:
AT&T PCS
c/o AT&T Wireless Services, Inc.
0000 000xx Xxx XX
Xxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxx
Fax: (000) 000-0000
with a copy to:
AT&T Wireless Services, Inc.
0000 000xx Xxx XX
Building 1, Legal Department
Xxxxxxx, XX 00000
Attn: General Counsel
Fax: (000) 000-0000
CBW
c/o Cincinnati Xxxx Wireless Holdings LLC
000 X. Xxxxxx Xxxxxx, 000-000
Xxxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxxx
Fax: 000-000-0000
with a copy to:
Cincinnati Xxxx Inc.
000 X. Xxxxxx Xxxxxx, 000-000
Xxxxxxxxxx, XX 00000
Attn: General Counsel
Fax: (000) 000-0000
B. ADDITIONAL AGREEMENTS OF THE PARTIES.
1. The parties agree that for purposes of Section 6.8 only, and for no other
purpose, the Network Membership License Agreement shall be construed to be no
longer in effect as of January 1, 2004.
2. Except for those references contained in Section 6.8 of the Agreement, all
references to "Company Communications Services" in the Agreement shall be deemed
to
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include mobile wireless telecommunications services provided on the GSM/GPRS
System.
3. The parties expressly acknowledge and agree that the purpose of this
Amendment is merely to further the Parties' intent that the Company provide
mobile wireless telecommunications services using GSM/GPRS technology.
Similarly, the Parties further acknowledge and agree that as set forth in
Section B.2 of this Amendment, the deemed inclusion of mobile wireless
telecommunications services on the GSM/GPRS System within the definition of
Company Communications Services (and their exclusion from the references in
Section 6.8) is for convenience only, and solely for purposes of furthering such
intent of the parties. Except as set forth in Section B.1, nothing in this
Amendment shall be construed as a waiver or modification of any rights or
prohibitions that currently exist in the Agreement or Related Agreements
relating to exclusivity and non-competition, as an admission or non-admission to
whether GSM/GPRS is or is not within the existing definition of TDMA, or more
favorably for or against one Party or Member Group with respect to such rights
and prohibitions relating to exclusivity and non-competition and the definition
of TDMA as they currently exist on the date hereof.
4. All other terms and conditions of the Agreement in all other respects
remain unmodified and in full force and effect.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the
date first above written.
AT&T WIRELESS PCS, LLC
By AT&T Wireless Services, Inc.
Its Manager
By_______________________________
Name:
Title:
CINCINNATI XXXX WIRELESS HOLDINGS LLC
By _______________________________
Name:
Title:
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