Exhibit 10.1
AGREEMENT AND AMENDMENT NO. 3
TO OPERATING AGREEMENT OF CINCINNATI XXXX WIRELESS LLC
This AGREEMENT AND AMENDMENT NO. 3 (this "Amendment"), dated as of
February 14, 2005 (the "Effective Date"), to the Operating Agreement of
CINCINNATI XXXX WIRELESS, LLC (the "Company"), dated as of December 31, 1998, as
amended as of October 16, 2003, and as further amended as of August 4, 2004
("Amendment No. 2") (collectively, the "Agreement"), is by and among NEW
CINGULAR WIRELESS PCS, LLC, a Delaware limited liability company (f/k/a AT&T
Wireless PCS, LLC) ("AT&T PCS"), CINCINNATI XXXX WIRELESS HOLDINGS LLC, a
Delaware limited liability company ("CBW"), CINCINNATI XXXX, INC., an Ohio
corporation ("CBI"), the Company, NEW CINGULAR WIRELESS SERVICES, INC., a
Delaware corporation (f/k/a AT&T WIRELESS SERVICES, INC.) ("AT&T"), and solely
for the purposes of Section 5 of this Amendment, Cingular Wireless LLC, a
Delaware limited liability company ("Cingular"). Capitalized terms used but not
defined in this Amendment have the meanings given to them in the Agreement.
WHEREAS, the Company was formed as a limited liability company under
the Delaware Limited Liability Company Act, subject to the terms and conditions
set forth in the Agreement; and
WHEREAS, the parties desire to amend the Agreement in order to postpone
the commencement date for the Put to January 31, 2006, modify certain other
dates related to the Put and the Call, and update the addresses for notices to a
Member or Representative of the AT&T PCS Member Group;
NOW, THEREFORE, in consideration of the recitals and of the mutual
promises, covenants and other agreements contained herein and for other good and
valuable consideration, the receipt and sufficiency of which hereby are
acknowledged, the parties hereby agree as follows:
1. Section 7.4(c) of the Agreement is deleted in its entirety and is replaced
with the following:
(c) Put. Commencing on January 31, 2006, and at any time
thereafter, or if at any time the Member Committee shall call for
additional capital contributions (unless such capital call shall have
been approved by the AT&T PCS Member Group), and upon the written
demand of AT&T PCS, CBI on behalf of itself and/or its Affiliates shall
purchase all the Interests of the AT&T PCS Member Group for a cash
purchase price, payable by wire transfer in immediately available
funds, in an amount (the "Put Value") equal to $83.0 million dollars
accreting daily at an annual rate of 5% compounding monthly after
January 31, 2006 to and including the date of the closing of the
transfer (the "Put"). Any such demand by AT&T PCS shall be in writing
and given to CBI (the "Put Notice") (which may be delivered prior to
January 31, 2006) and shall specify a closing date, subject to
obtaining any Governmental Approvals required for closing, not less
than 60 nor more than 180 days following the date of the Put Notice,
but in no event
shall such closing be before January 31, 2006 (other than for a Put
which arises as a result of a capital call). At such closing, AT&T PCS
shall represent and warrant only that the AT&T PCS Member Group has
good and marketable title to the Interests being sold, free and clear
of all Liens and has the power and authority to transfer the Interest
free of any conflict with the terms of any material agreement, law,
order or instrument binding upon it and shall deliver the instrument of
assignment attached hereto as Exhibit A. AT&T PCS, CBI and CBW shall
cooperate to achieve the transfer of the Interests through a structure
taking into account the relative tax considerations of the Members in
connection with such transfer. Upon the closing, the AT&T PCS Member
Group shall be relieved of all obligations under this Agreement and CBI
and the AT&T PCS Member Group will enter into a release agreement
substantially in the form attached hereto as Exhibit B. Notwithstanding
this Section 7.4(c), in the event that prior to such closing, CBI
delivers the Call Notice for a closing to occur prior to January 31,
2006, the purchase of the Interests of the AT&T PCS Member Group shall
be made pursuant to Section 7.4(d) provided that in no event shall the
closing occur at a date later than the date that the closing of the Put
would have occurred pursuant to the Put Notice. Moreover,
notwithstanding anything in this Agreement to the contrary (including
without limitation Section 7.3(g)), no transfer of any Interests by the
CBW Member Group pursuant to Section 7.2 of the Agreement shall relieve
CBI (or any successor) of its obligations pursuant to this Section
7.4(c).
2. Section 7.4(d)(i) of the Agreement is deleted in its entirety and is replaced
with the following:
(d) Call.
(i) Right to Call; Value. Commencing on the
Consummation, and at any time thereafter, CBI and/or any of
its Affiliates shall have the option to purchase the Interests
owned by the AT&T PCS Member Group in the Company (the "Call")
for a purchase price equal to an amount that is $85.0 million
dollars accreting daily at an annual rate of 5% compounding
monthly from the Effective Date to and including the date of
closing of the Call (the "Call Value"). If the closing of the
Call has not occurred prior to January 31, 2006, then on such
date, the Call Value shall be adjusted down to $83.0 million
and shall begin accreting again on the same terms from such
date. AT&T PCS, CBI and CBW shall cooperate to achieve the
transfer of the Interests through a structure taking into
account the relative tax considerations of the Members in
connection with such transfer.
3. Section 7.4(e) of the Agreement is deleted in its entirety and is replaced
with the following:
(e) Governmental Approvals. In the event that any
approvals, consents, authorizations, clearances, exemptions,
waivers or similar affirmations of any governmental or
regulatory authority including those required pursuant to the
HSR Act ("Governmental Approvals") are required to close the
transactions contemplated pursuant to Section 7.4(c) or (d)
hereof, the parties agree that any
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filings or requests for any Governmental Approvals shall be
prepared and filed with the appropriate governmental agency
within 10 business days from the receipt of the Put Notice or
Call Notice, as the case may be, but in any event no later
than August 1, 2005 if permitted by such governmental agency
and if not, no later than the earliest date such filing is
permitted thereafter. The parties agree to use their best
efforts to obtain all Governmental Approvals by the applicable
scheduled closing date, or sooner if practicable, and
notwithstanding the generality of the foregoing, (i) to use
their best efforts to respond as promptly as practicable to
all inquiries received from the applicable governmental
agencies or committees for additional information or
documentation, (ii) to notify each other promptly of all
correspondence, filings or communications with such party or
its representatives, (iii) to furnish each other with such
necessary information and reasonable assistance as such other
party may request in connection with their preparation of all
filings relating to the Governmental Approvals, and (iv) all
filing fees in connection with any filings required with
respect to the HSR Act shall be shared equally by CBI and AT&T
PCS. In no event shall any Affiliate of CBI be permitted to
participate in the exercise of the Put or Call if such
Affiliate's participation causes any delay in obtaining any
Governmental Approval required to close such transactions.
4. Section 10.8 of the Agreement is amended by deleting the notice addresses for
the Member and Representative of the AT&T PCS Member Group and adding the
following notice addresses in lieu thereof:
c/o Cingular Wireless LLC
0000 Xxxxxxxxx Xxxxxxxxx
Xxxxxxx, XX 00000
Attn: General Counsel
Fax: 000-000-0000
with a copy to:
Xxxxxx & Bird LLP
One Atlantic Center
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Attn: Xxxxxx Xxxxx
Fax: 000-000-0000
5. Section B.3 of Amendment No. 2 is deleted in its entirety and is replaced
with the following:
3. Notwithstanding any provision to the contrary in Article 7
of the Agreement, effective upon the Consummation, AT&T PCS,
AT&T, CBW, CBI, the Company and Cingular agree that until
January 31, 2006, the AT&T PCS Member Group may not sell or
transfer (other than in accordance with Section 7.2) its
Interests in the Company or any capital stock or other equity
interest in a Person that directly
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or indirectly owns the Interests in the Company, other than
(a) a sale to a third party pursuant to Section 7.4(a) of the
Agreement, (b) other than a sale to CBI and/or its Affiliates
pursuant to Sections 7.4(c) and (d) of the Agreement, or (c) a
sale or disposition required by a regulatory or governmental
authority in connection with the Merger. If a sale or
disposition is required by a regulatory or governmental
authority as described in clause (b) above, then such sale
shall be subject to the right of first refusal in Article 7 of
the Agreement; provided, however, that the parties agree to
shorten the time periods in Article 7 (pro rata among the
various time periods unless mutually agreed otherwise by the
parties) to allow the sale or disposition to occur as required
by the regulatory or governmental authority.
6. All other terms and conditions of the Agreement in all other respects remain
unmodified and in full force and effect.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the
date first above written.
NEW CINGULAR WIRELESS PCS, LLC ("AT&T PCS")
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
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Title: V. P. Treasurer and Corp. Development
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NEW CINGULAR WIRELESS SERVICES, INC. ("AT&T")
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
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Title: V. P. Treasurer and Corp. Development
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CINGULAR WIRELESS LLC
("Cingular") For the limited
purposes of Section 5 hereof:
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
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Title: V. P. Treasurer and Corp. Development
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CINCINNATI XXXX WIRELESS HOLDINGS LLC
("CBW")
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
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Title: President and CEO
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CINCINNATI XXXX INC. ("CBI")
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
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Title: President and CEO
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CINCINNATI XXXX WIRELESS LLC (the "Company")
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
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Title: President and CEO
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