**EXHIBIT10.4**

 

**ADDENDUMVIII****TOSPRINT PCS MANAGEMENT AGREEMENT ANDSPRINT PCS SERVICES AGREEMENT**

**Amending these agreements further and restating certainParagraphs in Addenda I through VII**

 

**Dated as of November 7, 2003**

 

**Manager:****                                           UbiquiTelOperating Company**

 

**ServiceArea BTAs:**

 

Anderson, IN(partial)  #15

Bakersfield, CA  #28

Bloomington-Bedford,IN  #47

Boise-Nampa, ID  #50

Bowling Green-Glasgow,KY  #52

Chico-Oroville, CA  #79

Cincinnati, OH(partial)  #81

Clarksville,TN-Hopkinsville, KY  #83

Columbus, IN  #93

Eureka, CA  #134

Evansville, IN  #135

Fresno, CA  #157

Idaho Falls, ID  #202

Indianapolis, IN(partial)  #204

Las Vegas, NV(partial)  #245

Lewiston-Moscow, ID  #250

Logan, UT  #258

Louisville, KY(partial)  #263

Madisonville, KY  #273

Merced, CA  #291

Modesto, CA  #303

Owensboro, KY  #338

Paducah-Murray-Mayfield,KY  #339

Pocatello, ID  #353

Provo-Orem, UT(partial)  #365

Redding, CA  #371

Reno, NV  #372

Richmond, IN  #373

Sacramento, CA(partial)  #389

 

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St. George, UT  #392

Salt Lake City-Ogden, UT(partial)  #399

Spokane, WA  #425

Stockton, CA  #434

Terre Haute, IN(partial)  #442

Twin Falls, ID  #451

Vincennes-Washington,IN  #457

Visalia-Porterville-Hanford,CA  #458

Yuba City-Marysville, CA(partial)  #485

 

This Addendum VIII (this“**Addendum**”)contains amendments to the Sprint PCS Management Agreement, the Sprint PCSServices Agreement, the Sprint Trademark and Service Mark License Agreement andthe Sprint Spectrum Trademark and Service Mark License Agreement, each of whichwas entered into on October 15, 1998, by Sprint Spectrum L.P., WirelessCo,L.P., Sprint Communications Company L.P. and UbiquiTel L.L.C.  After entering into these agreements,UbiquiTel L.L.C. assigned all of its rights and obligations under suchagreements toUbiquiTel Holdings, Inc. on November 29, 1999, which in turn assigned all ofits rights and obligations under such agreements to******UbiquiTel Operating Company, LLC on December29, 1999, which subsequently was merged into UbiquiTel Operating Company onMarch 16, 2000.  Sprint Telephony PCS,L.P. and Sprint PCS License, L.L.C. also became parties to these agreements onAugust 13, 2001, when VIA Wireless LLC was acquired by UbiquiTel OperatingCompany and UbiquiTel Operating Company took over management of the servicearea formerly managed by VIA Wireless LLC.  The Management Agreement, Services Agreement and Trademark LicenseAgreements were amended by:

 

(1)                                  AddendumI dated as of October 15, 1998,

(2)                                  AddendumII dated as of December 28, 1999,

(3)                                  AddendumIII dated as of February 14, 2000,

(4)                                  AddendumIV dated as of April 5, 2000,

(5)                                  AddendumV dated as of June 6, 2000,

(6)                                  AddendumVI dated as of February 21, 2001, and

(7)                                  AddendumVII dated as of July 31, 2003.

 

The purposes of thisAddendum are to (1) amend the Management Agreement, the Services Agreement, theTrademark License Agreements and the Schedule of Definitions and restate thoseparagraphs in the addenda executed previously that amend the ManagementAgreement, the Services Agreement, the Trademark License Agreements and theSchedule of Definitions (see section A below), and (2) provide cross-referencesto those paragraphs in addenda executed previously that are not restated inthis Addendum (see section B below).

 

The terms and provisionsof this Addendum control over any conflicting terms and provisions contained inthe Management Agreement, the Services Agreement, the Trademark LicenseAgreements and the Schedule of Definitions. The Management Agreement, the Services Agreement, the Trademark LicensesAgreements, the Schedule of Definitions and all prior addenda continue in fullforce and effect, except for express modifications made in this Addendum.  This Addendum does not change the effectivedate of any prior amendment made to

 

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the Management Agreement, the Services Agreement, the Trademark LicenseAgreements or the Schedule of Definitions through previously executed addenda.

 

Capitalized terms usedand not otherwise defined in this Addendum have the meaning ascribed to them inthe Schedule of Definitions or in prior addenda.  Section and Exhibit references are to sections and Exhibits ofthe Management Agreement unless otherwise noted.

 

The parties are executing this Addendum as of the datenoted above, but this Addendum becomes effective on (the **“Effective Date”**): (1)November 1, 2003, (i) if on or before November 7, 2003, the SettlementAgreement and Mutual Release between Sprint Spectrum L.P., WirelessCo, L.P.,Sprint PCS License, L.L.C., Sprint Telephony PCS, L.P., Sprint CommunicationsCompany L.P., UbiquiTel Operating Company, UbiquiTel Inc. and UbiquiTel LeasingCompany is executed and delivered, and (ii) if on or before November 10, 2003,the payment required under the Settlement Agreement and Mutual Release is paidand received; or (2) the first calendar day of the first calendar month afterthe events described in clauses (i) and (ii) occur, if the event in clause (i)occurs after November 7, 2003 or the event in clause (ii) occurs after November10, 2003.

 

On the Effective Date the****Management Agreement, theServices Agreement, the Trademark License Agreements and the Schedule ofDefinitions are amended and restated as follows:

 

**A.**                                    **NewAmendments and Restatement of Previous Amendments to Sprint PCS Agreements**.

 

**Management Agreement**

 

**1.****                                      VendorPurchase Agreements – Software Fees [NEW].**   Section 1.3 is amended to read as follows:

 

Insert:“***1.3.1******                          DiscountedVolume-Based Pricing.***” before the first paragraph.

 

Insert:“***1.3.2******                          Subscriberand Infrastructure Equipment.***” before the second paragraph.

 

Insert:“***1.3.3******                          ExclusiveUse.***” before the third paragraph.

 

Add anew section 1.3.4 as follows:

 

***1.3.4******                     SoftwareFees*.**

 

(a)                                  Manageracknowledges that Sprint PCS administers the testing and implementation of theSoftware (*i.e.*, pushing of theSoftware) into the Service Area Network.

 

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(b)                                 SprintPCS, when obtaining software for its own use that is identical to the Software,will use commercially reasonable efforts to obtain a license from vendorsproviding for the right of Manager to use the Software in connection withtelecommunications equipment manufactured by the vendor (collectively thesoftware obtained by Sprint PCS for its own use and the Software that operateson telecommunications equipment manufactured by the vendor are for purposes ofthis section 1.3.4, the “**Vendor Software**”; when the term “VendorSoftware” is used with respect to Manager, it means only the Software, and notthe software used only by Sprint PCS).

 

(c)                                  Managerwill arrange independently with the vendor to obtain a license if Sprint PCScannot reasonably obtain a license for Manager.  Any license that Manager obtains from a vendor must require theVendor Software to be tested in Sprint PCS test beds by Sprint PCS and requireSprint PCS, not the vendor or Manager, to push the Vendor Software to theService Area Network unless Sprint PCS otherwise consents in advance inwriting.  Sprint PCS agrees to test theVendor Software in Sprint PCS test beds within a reasonable period afterManager reasonably requests the tests in writing.

 

(d)                                 SprintPCS will:

 

(i)                                     notifyManager in writing at least 60 days before the date of an automatic renewal of,or Sprint PCS’ unilateral act to renew or extend, an agreement that providesSprint PCS the right to use the Vendor Software, or

 

(ii)                                  usereasonable efforts to notify Manager in writing before the date Sprint PCSintends to start negotiations with a vendor regarding extension, renewal,pricing or other material terms relating to Sprint PCS’ and Manager’s right touse the Vendor Software (whether for new Software or renewal of an existinglicense), and at least 60 days before the date Sprint PCS executes anagreement, extension or renewal.

 

Thenotice by Sprint PCS will include the material terms and conditions of any suchagreement or negotiations to the extent known at the time of the notice,including the network elements to be covered by the right to use the VendorSoftware.  Manager must notify SprintPCS in writing within 30 days after receiving the notice described in the firstsentence of this section 1.3.4(d) if Manager wants Sprint PCS to attempt toobtain or continue the right for Manager to use the Vendor Software.  Sprint PCS will renew or negotiate theagreement as if Manager will not be a user of the Vendor Software if Managerdoes not provide notice to Sprint PCS within the 30-day period. However, SprintPCS may obtain pricing from the vendor for the Vendor Software that includesManager as a user if obtaining the pricing does not obligate Manager to be auser.

 

SprintPCS will advise Manager upon Manager’s reasonable request of the status of theSoftware negotiations if Manager requested Sprint PCS to obtain or continue theright for Manager to use the Vendor Software under Sprint PCS’ agreement withthe

 

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vendor.  Sprint PCS will use commercially reasonableefforts to give Manager notice of the final pricing for the right to use theVendor Software no less than 20 days before the expected execution or renewalof the agreement; provided that, in any event, Sprint PCS will give Managernotice of the final pricing no less than 3 Business Days before the expectedexecution or renewal of the agreement.  If necessary, Manager agrees to use commercially reasonableefforts to enter into a nondisclosure agreement with the vendor to facilitateproviding such final pricing to Manager.

 

Managermay give Sprint PCS notice by the time set forth in Sprint PCS’ notice toManager (which time will not be less than 10 Business Days) that Manager doesnot intend to use the Vendor Software through the agreement between Sprint PCSand the vendor.  If Manager does notgive this final notice to Sprint PCS, Manager is deemed to agree to be a userof the Vendor Software through the agreement between Sprint PCS and the vendorand will pay the Allocable Software Fee. Within 15 Business Days after execution of an agreement between Sprint PCSand the vendor, Sprint PCS will provide to Manager a forecast of Manager’sAllocable Software Fee, the estimated payment due dates relating to theAllocable Software Fee, and the proportion of Manager’s Allocable Software Feeforecast to be due on each payment due date.

 

SprintPCS does not have to obtain a license for Vendor Software for Manager, even ifManager requests Sprint PCS to obtain such license, if at any time beforeexecution of the agreements granting the license Sprint PCS reasonably believesthat Manager is more likely than not to unreasonably refuse to pay theAllocable Software Fee or Sprint PCS reasonably believes that the Manager is insuch financial condition that Manager is more likely than not to be unable topay the Allocable Software Fee.

 

IfManager accepts the Vendor Software, Sprint will give Manager, Manager’sproportional share of (i) any cash benefits relating specifically to the VendorSoftware that Sprint PCS obtains from the vendor, and (ii) to the extentreasonably able to be made available to Manager, other benefits, includingtraining, relating specifically to the Vendor Software.

 

(e)                                  SprintPCS will pay all Software Fees relating to the Vendor Software to the vendor ifSprint PCS obtains a license from the vendor that provides Manager the right touse the Vendor Software and Manager agrees to pay any applicable AllocableSoftware Fee in accordance with this section 1.3.4(e).  Manager will be deemed to agree to pay anyapplicable Allocable Software Fee if both:

 

(i)                                     Managerhas not taken the action described in paragraph (d) above to decline obtainingthe right to use the Vendor Software through the agreement between Sprint PCSand the vendor, and

 

(ii)                                  SprintPCS obtains a license providing for the right of Manager to use the VendorSoftware.

 

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Managerwill pay Sprint PCS the Allocable Software Fee (as defined below) within 30days after receipt of an invoice. Sprint PCS will invoice Manager only after Sprint PCS pays theunderlying Software Fee to the vendor.  The Allocable Software Fee will not include any amount forSoftware that is the same as or functionally equivalent to any Software (y)that is a component of any service for which a fee is charged under the ServicesAgreement or (z) for which Sprint PCS otherwise charges Manager under thisagreement.

 

SprintPCS will calculate the “**Allocable Software Fee**” as follows:

 

Foreach vendor, multiply:

 

(i)                                     theNet Software Cost of the Software Fees attributable to the Vendor Software forwhich Sprint PCS has obtained for itself, Manager and Other Managers a licenseor other right to use, by

 

(ii)                                  thequotient of:

 

(A)                              thenumber of Customers and Reseller Customers with an NPA-NXX assigned to theService Area that are assigned to a system using the Vendor Software, asreported in the most recent monthlyreport that Sprint PCS issues before the date that Sprint PCS preparesan Allocable Software Fee invoice, divided by:

 

(B)                                thenumber of Customers and Reseller Customers that are assigned to any systemusing the Vendor Software, as reported in the most recent monthly report that Sprint PCS issuesbefore the date that Sprint PCS prepares an Allocable Software Fee invoice.

 

(f)                                    SprintPCS will include with the invoice for the Allocable Software Fee a list of thecomponent charges, if available from the Vendor.  The Software Fees that Sprint PCS pays to the vendor will reflectrates no greater than commercial rates negotiated at arms’ length.  For purposes of clarification, the partiesacknowledge the vendor may insist on a comprehensive fee without listing eachcomponent, but rather asserting that the fee covers all software necessary tooperate the equipment.  But Sprint PCSwill provide to Manager a description of all the features and functionality inreasonable detail for all Software for which Manager is to pay an AllocableSoftware Fee.

 

(g)                                 Managerwill not be charged the Allocable Software Fee for the Vendor Software afterManager:

 

(i)                                     notifiesSprint PCS in writing within the periods allowed in section 1.3.4(d) thatManager declines to have Sprint PCS obtain a right for Manager to use theVendor Software or that it does not intend to use the Vendor Software,

 

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(ii)                                  obtainsits own license providing for Manager’s right to use the Vendor Software, and

 

(iii)                               complieswith the requirements of section 1.3.4(h).

 

(h)                                 Managerwill obtain its own license providing for Manager’s right to use the VendorSoftware from the vendor if Manager elects not to have Sprint PCS attempt toobtain a right for Manager to use the Vendor Software under section 1.3.4(d).Manager will notify Sprint PCS in writing and deliver to Sprint PCS within 10Business Days after Manager’s execution of Manager’s separate license, a signeddocument from the vendor confirming that:

 

(i)                                     thevendor has provided Manager a separate license for the necessary software andthe term of that license, which term with appropriate renewal rights, must beat least as long as the license Sprint PCS has from the vendor,

 

(ii)                                  thefees paid by Manager to the vendor reflect commercial rates negotiated at arms’length,

 

(iii)                               theVendor Software covered by Manager’s license provides the usage andfunctionality necessary for Manager to operate the Service Area Network in compliancewith the Sprint PCS Technical Program Requirements, and

 

(iv)                              theVendor Software may be tested in Sprint PCS test beds by Sprint PCS and will bepushed to the Service Area Network by Sprint PCS, not the vendor or Manager,unless Sprint PCS otherwise consents in advance in writing.  Sprint PCS agrees to test the VendorSoftware in Sprint PCS test beds within a reasonable period after Managerreasonably requests in writing.

 

**2.****                                      Interconnection[NEW].**  Section 1.4 is amended andrestated in its entirety to read as follows:

 

IfManager desires to interconnect a portion of the Service Area Network withanother carrier and Sprint PCS can interconnect with that carrier at a lowerrate, then to the extent that applicable laws, tariffs and agreements permit, SprintPCS will use commercially reasonable efforts to arrange for the interconnectionunder its agreements with the carrier within a commercially reasonableperiod.  Sprint PCS will bill theinterconnection fees to Manager at actual cost.

 

**3.**                                      **Forecasting[NEW].**  Section 1.6 is amended andrestated in its entirety to read as follows:

 

**1.6****                               Forecasting. **Manager and Sprint PCS will workcooperatively to generate mutually acceptable forecasts of important businessmetrics that they

 

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agree upon.  The forecasts are for planning purposes onlyand do not constitute either party’s obligation to meet the quantitiesforecast.

 

**4.****                                      FinancingPlan****[Addm II, §2; revised by this Addendum; Exhibit 1.7 was modifiedby Addm IV, §2 and Addm VI, §6].** Section 1.7 is amended and restated in its entirety to read as follows:

 

**1.7****                               Financing. **The construction and operation of theService Area Network requires a substantial financial commitment byManager.  The manner in which Managerwill finance the build-out of the Service Area Network and provide thenecessary working capital to operate the business is described in detail on Exhibit1.7.  Manager will allow Sprint PCSan opportunity to review before filing any registration statement or prospectusor any amendment or supplement thereto and before distributing any offeringmemorandum or amendment or supplement thereto, and agrees, subject to Manager’sobligations under applicable law, regulation or stock exchange listingrequirement, not to file or distribute any such document if Sprint PCSreasonably objects in writing on a timely basis to any portion of the documentthat refers to Sprint PCS, its Related Parties, their respective businesses,this agreement or the Services Agreement.

 

**5.****                                      Information[NEW]. **A new section 1.9 is addedto the Management Agreement.

 

**1.9****                               Accessto Information.**

 

***1.9.1 Network Operations. ***Managerand Sprint PCS will have access to, and may monitor, record or otherwisereceive, information processed through equipment, including switches, packetdata switching nodes and cell site equipment, that relates to the provision ofSprint PCS Products and Services or to the provision of telecommunicationsservices to Reseller Customers in the Service Area Network, if the access,monitoring, recording or receipt of the information is accomplished in a mannerthat:

 

(i)                                     Doesnot unreasonably impede Manager or Sprint PCS from accessing, monitoring,recording or receiving the information,

 

(ii)                                  Doesnot unreasonably encumber Manager’s or Sprint PCS’ operations (including,without limitation, Sprint PCS’ real-time monitoring of the Sprint PCS Networkstatus, including the Service Area Network),

 

(iii)                               Doesnot unreasonably threaten the security of the Sprint PCS Network,

 

(iv)                              Doesnot violate any law regarding the information,

 

(v)                                 Complieswith technical requirements applicable to the Service Area Network,

 

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(vi)                              Does not adversely affectany warranty benefiting Manager or Sprint PCS (e.g., software warranties), and

 

(vii)                           Withrespect to the information processed through Manager’s equipment, including itsswitches, does not result in a material breach of any agreement regarding theinformation (*e.g.,* national security agreements).

 

SprintPCS and Manager will immediately notify the other party and reasonablycooperate to establish new procedures for allowing both Manager and Sprint PCSto access, monitor, record and receive the information in a manner that meetsthe criteria in clauses (i) through (vii) above if either Manager or Sprint PCSreasonably determines that the other party is accessing, monitoring, recordingor receiving the information described in this section 1.9.1 in a manner thatdoes not meet the criteria in clauses (i) through (vii) above.

 

Managerowns the information regarding the performance of its equipment.  Each of Manager and Sprint PCS may use theinformation obtained under this section 1.9.1 for any reasonable internalbusiness purpose, during the term of and after termination of this agreement,the Services Agreement and the Trademark License Agreements, so long as the usewould be in accordance with those agreements if those agreements were still ineffect.

 

***1.9.2 Customer Information. ***Manageris entitled to receive information Sprint PCS accesses, monitors, records orreceives concerning the Service Area Network or the Customers with NPA-NXXsassigned to Manager’s Service Area, subject to the terms of this section 1.9.2and section 1.9.3 and Manager’s compliance with CPNI requirements and any other legal requirements applicable to theinformation.

 

SprintPCS will provide the information in the format that Manager requests at noadditional charge to Manager if Sprint PCS accesses, monitors, records,receives or reports for its own use the information specific to Manager thatManager requests in the same format as Manager requests.  Sprint PCS will use commercially reasonableefforts to provide the information within 5 Business Days.

 

SprintPCS will provide the information in the format that Manager requests if SprintPCS accesses, monitors, records, receives or reports for its own use theinformation that Manager requests, but not in the same format that Managerrequests, if Manager agrees to pay or reimburse Sprint PCS for the costs SprintPCS reasonably incurs.  Sprint PCS willuse commercially reasonable efforts to provide the requested information within15 Business Days.

 

IfSprint PCS accesses, monitors, records or receives the information requested byManager, but not in the same format that Manager requests, then Sprint PCS willprovide the requested information as raw data, if:

 

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(i)Sprint PCS chooses not to provide the information as described in the precedingparagraph, and

 

(ii)Manager agrees to pay or reimburse Sprint PCS for the costs Sprint PCSreasonably incurs.

 

SprintPCS will use commercially reasonable efforts to provide the raw data within 15Business Days.

 

SprintPCS owns the information regarding the Customers.  Each of Manager and Sprint PCS may use the information obtainedunder this section 1.9.2 during the term of and after termination of thisagreement, the Services Agreement and the Trademark License Agreements so longas the use would be in accordance with those agreements if those agreementswere still in effect.

 

***1.9.3 Limitations and Obligations.**** *Sprint PCS does not have to provide any information thatManager reasonably requests under this agreement or the Services Agreementthat:

 

(i)                                     Managercan obtain itself in accordance with section 1.9.1 (if Sprint PCS has providedManager with any necessary specifications requested by Manager as to how toobtain the information), unless Sprint PCS already has the information in itspossession and has not previously delivered it to Manager,

 

(ii)                                  SprintPCS no longer maintains,

 

(iii)                               Managerhas already received from Sprint PCS or its Related Parties,

 

(iv)                              SprintPCS does not access, monitor, record, receive or report, or

 

(v)                                 Sprint PCS must make system modifications toprovide the raw data, including without limitation modifying or adding datafields or modifying code.

 

SprintPCS will provide Manager a copy of the then-current Sprint PCS documentretention policy from time to time upon reasonable request.

 

***1.9.4 Contracts.*** Sprint PCS will disclose to Manager the relevant terms and conditions ofany agreement between Sprint PCS and any third party:

 

(i)                                     withwhich Manager must comply, directly orindirectly, under the Management Agreement, the Services Agreement or anyProgram Requirement,

 

(ii)                                  from which Manager is entitled to anybenefit, or

 

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(iii)                               thatrelate to any pass-through amounts that Sprint PCS charges Manager under thisagreement or Settled-Separately Manager Expenses under the Services Agreement.

 

In each case Sprint PCS’disclosure will be in sufficient detail to enable Manager to determine theobligations or benefits with which Manager must comply or benefit or thecharges or expenses to be paid by Manager. Sprint PCS may provide to Manager copies of the agreements or therelevant terms and conditions of such agreements in electronic format uponnotice to Manager, including by posting the copies or relevant terms andconditions to a secure website to which Manager has access.  Once each calendar year and from time totime when a change is effected to any relevant term or condition, Manager mayrequest copies of the agreements that are not posted to the secure website orwhose relevant terms and conditions are not posted to the secure website.

 

Sprint PCS will provide acopy of the agreement to Manager to the extent permissible by the terms of theagreement.  Sprint PCS will allowManager or its representatives to review a copy of the agreement to the extentpermissible by the agreement if the agreement prohibits Sprint PCS fromproviding Manager a copy.  Sprint PCSwill satisfy the requirements of this section 1.9.4 if it chooses to provide acopy of the agreement in electronic form on a server that Sprint PCSdesignates.  Sprint PCS will usecommercially reasonable efforts to obtain the right from the third party, ifrequired, to provide a complete copy to Manager of any agreement between SprintPCS and any third party of the type described in this section 1.9.4.

 

**6.****                                      MostFavored Nation [NEW]. * ***Anew section 1.10 is added to the Management Agreement:

 

**1.10****                        SubsequentAmendments to Other Managers’ Management Agreements and Services Agreements.**  Manager has the right to amend the terms inits Management Agreement and Services Agreement as described in this section1.10 if during the period beginning on the date of this Addendum and endingDecember 31, 2006, any of the terms of a 3M-pops Manager’s Management Agreementor Services Agreement are amended in any manner for any reason to be morefavorable to the 3M-pops Manager than the terms of Manager’s ManagementAgreement or Services Agreement are to Manager, subject to the following:

 

(a)                                  Managermust elect to accept all, but not less than all, of the terms of the 3M-popsManager’s Management Agreement and Services Agreement agreed to since theEffective Date (including accepting existing terms that relate to the changesor terms that were previously changed and not previously accepted by Managerbut that remain a part of the latest version of the 3M-pops Manager’sagreement) (collectively, but excluding the changes described in paragraphs (b)and (c) below, the “**Overall Changes**”).

 

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(b)                                 Managerwill not be required to accept any changes involving payment of specificdisputed amounts arising under the Management Agreement or Services Agreementof the 3M-pops Manager, and

 

(c)                                  Noamendments in Manager’s Management Agreement and Services Agreement will bemade to reflect changes made in a 3M-pops Manager’s Management Agreement andServices Agreement if such changes are:

 

(i)                                     madesolely because the 3M-pops Manager owns spectrum on which all or a portion ofits network operates, unless the 3M-pops Manager acquired this spectrum fromSprint PCS or its Related Parties after the Effective Date, or

 

(ii)                                  compelledby a law, rule or regulation that applies to the 3M-pops Manager, but not toManager, or

 

(iii)                               madesolely to modify the build-out plan.

 

Sprint PCS will prepare and deliver to Manager either an addendumcontaining the Overall Changes that have been made to the 3M-pops Manager’sagreements in all of its addenda or copies of the 3M-pops Manager’s amended andrestated Management Agreement, Services Agreement and Trademark LicenseAgreements (in each case redacted to protect the identity of the 3M-popsManager) within 10 Business Days after the effective date of the amendment orother instrument containing these changes.  Manager then has 30 days to notify Sprint PCS that Manager wantsthe Overall Changes.

 

If Manager does not notify Sprint PCS in this 30-day time period inwriting that it wants the Overall Changes, no changes will be made in theagreements between Manager and Sprint PCS and Manager will be deemed to havewaived its rights under this section 1.10 with respect to the Overall Changes.

 

If Manager notifies Sprint PCS within the 30-day time period in writingthat it wants the Overall Changes, Sprint PCS will prepare, execute and deliverto Manager an addendum reflecting the Overall Changes.  The new addendum will have the sameeffective date as the addendum or the restated Management Agreement, ServicesAgreement and Trademark License Agreements between Sprint PCS and the 3M-popsManager that gave rise to the new addendum. Manager will have 15 days to review the new addendum and notify SprintPCS if Manager determines any inaccuracies are reflected in the new addendum.  Sprint will correct those inaccuracies andprovide a corrected new addendum to Manager within 10 Business Days afterManager’s notification.

 

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No changes will be made in the agreements between Manager and SprintPCS if Manager does not execute and return the signed addendum within 30 daysafter receipt of the signed addendum (or the corrected signed addendum, ifapplicable, pursuant to the previous paragraph), in which case Manager will bedeemed to have waived its rights under this section 1.10 with respect to theOverall Changes contained in the addendum presented.

 

If Manager and Sprint PCS disagree as to whether the terms of thesigned addendum accurately reflect the Overall Changes, then the parties willsubmit to binding arbitration in accordance with section 14.2, excluding theescalation process set forth in section 14.1. If the arbiter rules in favor of Manager, then Sprint PCS will makechanges to the signed addendum that are necessary to reflect the arbiter’sruling and submit the revised signed addendum to Manager within 10 days afterreceipt of the arbiter’s ruling. If the arbiter rules in favor of Sprint PCS,then Manager will execute the signed addendum as proffered to Manager within 10days after Manager’s receipt of the arbiter’s ruling.

 

The parties acknowledge that Sprint PCS can disclose to Manager who the3M-pops Manager is that gave rise to the proposed addendum only if the 3M-popsManager agrees to the disclosure.

 

**7.****                                      BuildoutPlan [Addm VII, §2; revised by this Addendum].**  Exhibit 2.1 attached to Addendum VII,comprised of a Build-Out Plan Description, a Build-Out Plan Table and Build-OutPlan Maps, supersedes and replaces in its entirety all Exhibits 2.1 previouslyagreed to by Manager and Sprint PCS. All references in the Management Agreement to the Build-out Plan aredeemed to refer to the Build-out Plan Description, Build-out Plan Table andBuild-out Plan Maps attached to Addendum VII, collectively.

 

**8.****                                      Exclusivityof Service Area [Addm VI, §8].** In section 2.3 and the Schedule of Definitions, the phrase “wirelessmobility communications network” is replaced by the phrase “Wireless MobilityCommunications Network”.

 

**9.****                                      RestrictedMarkets [Addm VII, §3].**  Exhibit2.4 attached to Addendum VII is the current Sprint Local Exchange CarrierRestricted Markets Table and Map and supersedes and replaces all prior Exhibits2.4.

 

**10.****                               CoverageEnhancement [Addm I, §2; revised by this Addendum]**.  Section 2.5 is amended and restated in itsentirety to read as follows:

 

**2.5****                               Manager’sRight of First Refusal For New Coverage Build-out.**  Sprint PCS grants to Manager the right offirst refusal to build-out New Coverage. Sprint PCS will give to Manager a written notice of a New Coveragewithin the Service Area that Sprint PCS decides should be built-out.  Manager must communicate to Sprint PCSwithin 90 days after receipt of the notice whether it will build-out the NewCoverage, otherwise Manager’s right of first refusal terminates with regard tothe New Coverage described in the notice.

 

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IfManager decides to build-out the New Coverage, then Manager and Sprint PCS willdiligently negotiate and execute an amendment to the Build-out Plan and proceedas set forth in sections 2.1 and 2.2. The amended Build-out Plan will contain critical milestones that provideManager a commercially reasonable period in which to implement coverage in theNew Coverage.  In determining whatconstitutes a “commercially reasonable period” as used in this paragraph, theparties will consider several factors, including local zoning processes andother legal requirements, weather conditions, equipment delivery schedules, theneed to arrange additional financing, and other construction already inprogress by Manager.  Manager willconstruct and operate the network in the New Coverage in accordance with theterms of this agreement.

 

IfManager declines to exercise its right of first refusal or Manager fails tobuild out the New Coverage in accordance with the amended Build-out Plan, thenSprint PCS may construct the New Coverage itself or allow a Sprint PCS RelatedParty or an Other Manager to construct the New Coverage.  Sprint PCS has the right, in a New Coveragethat it constructs or that is constructed by a third party, to manage thenetwork, allow a Sprint PCS Related Party to manage the network, or hire anOther Manager to operate the network in the New Coverage.  Any New Coverage that Sprint PCS or a thirdparty builds out is deemed removed from the Service Area and the ServiceArea Exhibit is deemed amended to reflect the change in the Service Area.

 

IfManager does not exercise its right of first refusal with respect to a NewCoverage, Manager’s right of first refusal does not terminate with respect tothe remainder of the Service Area.

 

AtManager’s request, Sprint PCS and Manager will discuss Manager’s interest inexpanding its Service Area and its build-out plans with respect to the expandedarea.

 

**11.****                               MicrowaveRelocation and Costs [Addm I, §3;revised by this Addendum].** The last sentence of section 2.7 of the Management Agreement is replacedwith the following language:

 

Sprint PCS will usereasonable efforts to notify Manager in writing at least 30 days before itbegins clearing spectrum for which Manager will be obligated for any clearingcosts under this section.  The partieswill share equally all costs associated with clearing sufficient spectrum tooperate the Service Area Network.  If,in the process of clearing sufficient spectrum, Sprint PCS relocates microwavepaths on adjacent spectrum, the cost of clearing the entire range of spectrumwill be shared equally.  Sprint PCS willreimburse Manager in proportion to the amount Manager paid to clear thespectrum if Sprint PCS receives any reimbursement from a third party for thecosts of clearing spectrum.

 

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**12.****                               Long-DistancePricing [NEW]**.  Section 10 ofAddendum II is deleted.  Additionally,section 3.4 of the Management Agreement is amended and restated in its entiretyto read as follows:

 

**3.4****                               IXCServices.**

 

***3.4.1. Customer Long Distance****.*  Sprint PCS and Manager will from time to time mutually definelocal calling areas in the Service Areas of Manager that Sprint PCS and Managerwill use to determine when a customer will be billed for a “long distance call”under the applicable rate plan of the Customer.  The parties acknowledge that these local calling areas (i) maychange in geographic scope in response to competitive pressures or perceivedmarket opportunities, and (ii) may not be able to be changed because ofregulatory, industry, or system limitations. The parties will not use local calling areas to determine “long distancetelephony services” under section 3.4.2. If the parties cannot agree on the extent of the local calling area theywill resolve the matter through the dispute resolution process insection 14.

 

***3.4.2. Long Distance Services***

 

*(a) Required purchase. *Manager must obtain (i)long-distance telephony services through Sprint PCS or its Related Parties toprovide long-distance service to users of the Sprint PCS Network and (ii)telephony services through Sprint PCS or its Related Parties to connect theService Area Network with the national platforms that Sprint PCS uses toprovide services to Manager under this agreement or the ServicesAgreement.  The term “long distancetelephony service” means anyinter-LATA call for purposes of this section 3.4.2 as it relates tolong-distance telephony services provided to users of the Sprint PCS Network.

 

*(b) Pricing and procedure*.  Sprint PCS will purchase for Sprint PCS, Manager and OtherManagers long-distance telephony services used in the Sprint PCS Network fromSprint Communications Company L.P. or its Related Parties (“**SCCLP**”).  Sprint PCS will purchase these long-distancetelephony services at a price and terms at least as favorable to Sprint PCS,Manager and the Other Managers (considering Sprint PCS, Manager and the OtherManagers as a single purchaser) as the best prices and terms SCCLP offers toany wholesale customer of SCCLP in similar situations when taking into accountall relevant factors (*e.g.,* volume, peak/off-peak usage, lengthof commitment). Sprint PCS will pay the invoice from SCCLP, except for itemsthat SCCLP directly bills under section 3.4.2(c).  Sprint PCS will bill to Manager as an activity settled separatelyunder the Services Agreement the portion of the fees billed to Sprint PCS thatrelate to Manager’s operations and the activity of all Customers and ResellerCustomers in the Service Area, except for items SCCLP directly bills undersection 3.4.2(c).

 

IfSprint Corporation no longer has its “PCS” tracking stock, Sprint PCS willinclude the volume of long-distance telephony services of Manager and OtherManagers with the volume of Sprint PCS when negotiating the Sprint PCS rate

 

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with the long distancedivision of Sprint Corporation (currently SCCLP).  The long distance division will continue to provide long-distancetelephony services to Sprint PCS for a price and upon terms based on the samerelevant factors described in the preceding paragraph and in the same mannerthat it has under the present tracking stock policy.

 

*(c) Call routing*. Manager, acting as a single purchaser, may purchase private linecapacity (or other forms of capacity) from SCCLP for inter-LATA calls to theextent that this capacity can be obtained on terms more favorable to Manager(acting as a single purchaser).  SCCLPwill sell that capacity to Manager at the best price that SCCLP offers to thirdparties in similar situations when taking into account all relevant factors.SCCLP will directly bill Manager for any purchase of capacity under thissection 3.4.2(c).**The terms of section 1.3 do not apply to purchases ofcapacity in this section 3.4.2(c).

 

*(d) Pre-existing agreement.*    If before the date Addendum VIII to this agreement is signed,Manager is bound by an agreement for long distance services or an agreement forprivate line service and the agreement was not made in anticipation of thisagreement or Addendum VIII, then the requirements of this section 3.4.2 donot apply during the term of the other agreement.  If the other agreement terminates for any reason, then therequirements of this section 3.4.2 do apply from and after thetermination.

 

*(e) Resale.*  Manager may not resell the long-distancetelephony services acquired under this section 3.4.2.  For purposes of clarification, resale under this section 3.4.2(e)includes Manager selling minutes to carriers for ultimate resale to end usersunder a brand other than “Sprint” or selling minutes to end users under a brandother than “Sprint”.  Manager may engagein the following activities (*i.e.,* these activities are not treated asresale of long-distance telephony services):

 

(1)the transport of long-distance calls for Customers under section 3.4.2(a),

 

(2)the transport of long-distance calls for resellers under section 3.5, and

 

(3)the transport of long-distance calls for roaming under section 4.3.

 

**13.****                               VoluntaryResale of Products and Services [Addm II, §11; revised by this Addendum].**  The second sentence of the second paragraphof section 3.5.2 is amended to read as follows:  “If Manager wants handsets of subscribers of resellers withNPA-NXXs of Manager to be activated, Manager must agree to comply with theterms of the program, including its pricing provisions, except to the extentotherwise set forth in Section 10.4.1 with respect to the Reseller CustomerFees.”

 

**14.****                               Intra-LATACalls and Backhaul Services [NEW].**   Section 12 of Addendum II is deleted. Additionally, section 3.7 is amended and restated in its entirety toread as follows:

 

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**3.7****                               Intra-LATACalls and Backhaul Services.** Manager, acting as a single purchaser, may purchase capacity (includingprivate line capacity) from SCCLP for intra-LATA calls and backhaulservices.  SCCLP will sell that capacityto Manager at the best price that SCCLP offers to third parties in similarsituations when taking into account all relevant factors.

 

Managerwill offer to Sprint PCS or one of its Related Parties the right to make toManager the last offer to provide capacity for intra-LATA calls and backhaul services for the Service AreaNetwork if:

 

(i)                                     Managerdecides to use third parties for intra-LATAcalls and backhaul services rather than self-provisioning the capacityor purchasing the capacity from Related Parties of Manager, and

 

(ii)                                  SprintPCS or one of its Related Parties has provided evidence to Manager that SCCLPor one of its Related Parties has facilities to provide the capacity requested.

 

Manager will deliver toSprint PCS the terms under which the third party will provide thecapacity.  Sprint PCS or one of itsRelated Parties will have a reasonable time to respond to Manager’s request forlast offer to provide pricing for capacity for intra-LATA calls and backhaul, which will be no greater than 5Business Days after receipt of the request for the pricing and the thirdparty’s terms from Manager.  Managerwill acquire capacity for intra-LATA calls and backhaul services from SprintPCS or one of its Related Parties if Sprint PCS or one of its Related Partiesoffers Manager pricing and other terms for intra-LATA calls and backhaulservices for the Service Area Network that matches the terms, includingpricing, or is better than the terms and lower than the pricing offered by thethird party.  For purposes of thissection 3.7, the term “backhaul” means the provision of services from a cellsite of Manager to the corresponding switch associated with the cell site.

 

IfManager has an agreement for these services in effect as of the date AddendumVIII is signed and the agreement was not made in anticipation of this agreementor Addendum VIII, then the requirements of this section 3.7 do not applyduring the term of the other agreement. If the other agreement terminates for any reason, then the requirementsof this section 3.7 do apply from and after the termination.

 

**15.****                               SprintPCS Roaming and Inter Service Area Program Requirements [NEW]. **The second paragraph of section 4.3 isamended to read as follows:

 

Section10.4.1 sets forth the settlement process that distributes between the membersmaking up the Sprint PCS Network (*i.e.*, Sprint PCS, Manager and all OtherManagers) a fee for use of the Sprint PCS Network and the Service Area Network(the **“InterService Area Fee”**).

 

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**16.****                               MarketingCommunications Guidelines [Addm V, §1].**  The first bulleted standard set forth in section II.B. of Exhibit5.2 to the Management Agreement is replaced with the following language:

 

Alluses of the Sprint marks must be in an manner generally consistent with overallSprint brand positioning, as determined by Sprint from time to time.  Sprint will review alladvertising/communication strategy and make judgments on its consistency withthe overall Sprint brand positioning within ten (10) days of receipt.  If the strategy is judged to beinconsistent, it will not be used or will be changed to be consistent withSprint brand positioning. Pre-production advertising/communications will be reviewed by Sprint forconsistency with Sprint brand positioning and personality within ten (10) daysof receipt.  If the advertising/communicationsare judged to be inconsistent, it will not be used or will be changed to beconsistent with the Sprint brand positioning and personality.

 

**17.****                               CustomerService Program Requirements [NEW]*. ***Paragraph2 of Addendum V is deleted.  Forclarification purposes, the Customer Service Program Requirements are effectiveas of the Effective Date of this Addendum VIII, and will not be appliedretroactively.

 

**18.****                               Changesto Program Requirements [NEW].**

 

(a)                                  Thefirst sentence of section 9.2(e) is amended to read as follows:

 

Managermust implement any changes in the Program Requirements within a commerciallyreasonable period of time unless Sprint PCS otherwise consents, subject tosection 9.3.

 

(b)                                 Section9.3 is amended and restated in its entirety to read as follows:

 

**9.3****                              ****Manager’sRights regarding Changes to Program Requirements.**

 

***9.3.1  Parameters for Required Program RequirementImplementation****.* (a)                       Manager may decline to implement aNon-Capital Program Requirement Change if Manager determines that the Non-CapitalProgram Requirement Change will satisfy any of the following tests:

 

(A)                              individuallycause the combined peak negative cash flow of Manager to be an amount greaterthan 3% of Manager’s Ultimate Parent’s Enterprise Value, or

 

(B)                                whencombined with original assessments made under clause (A) above of all otherProgram Requirement Changes that Sprint PCS announced and Manager agreed toimplement or Manager otherwise was required to implement in accordance withsection 9.3.4, both within the preceding 12 calendar months, cause the combinedcumulative peak negative cash flow of Manager to

 

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be an amount greater than5% of Manager’s Ultimate Parent’s Enterprise Value, or

 

(C)                                individuallycause a decrease in the forecasted 5-year discounted cash flow of Manager’sUltimate Parent (at Manager’s Ultimate Parent’s appropriate discount rate) ofmore than 3% on a combined net present value basis, or

 

(D)                               whencombined with original assessments made under clause (C) above of all otherProgram Requirement Changes that Sprint PCS announced and Manager agreed toimplement or Manager otherwise was required to implement in accordance withsection 9.3.4, both within the preceding 12 calendar months, cause a decrease inthe forecasted 5-year discounted cash flow of Manager’s Ultimate Parent (atManager’s Ultimate Parent’s appropriate discount rate) of more than 5% on acombined net present value basis.

 

The term “**Non-Capital****Program Requirement Change**” means a ProgramRequirement Change that does not require Manager to make any capitalexpenditures in excess of 5% of Manager’s capital budget as approved by theManager’s board of directors for the fiscal year in which the ProgramRequirement Change is requested, but does not include changes to the TrademarkUsage Guidelines, the Marketing Communications Guidelines, and the Sprint PCSNational or Regional Distribution Program Requirements.

 

If Manager declines to implement any Non-CapitalProgram Requirement Change, Manager must give Sprint PCS within 10 BusinessDays after Sprint PCS provides Manager with notice of the Program RequirementChange:

 

(i)                                     written notice that Manager declines toimplement the Non-Capital Program Requirement Change, and

 

(ii)                                  a written assessment of the impact of theNon-Capital Program Requirement Change on Manager using the parameters setforth in subparagraphs (A) through (D) above.

 

(b)                                 Managerhas the right to decline to implement any Capital Program Requirement Change ifManager determines that the Capital Program Requirement Change will have anegative net present value applying a 5-year discounted cash flow model.

 

The term “**Capital Program Requirement Change**” meansany Program Requirement Change that requires an expenditure of capital by Managerthat is greater than 5% of Manager’s capital budget as approved by theManager’s board of directors for the fiscal year in which the ProgramRequirement Change is requested, but does not include changes to the TrademarkUsage Guidelines, the

 

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Marketing CommunicationsGuidelines, and the Sprint PCS National or Regional Distribution ProgramRequirements.

 

If Managerdeclines to implement any Capital Program Requirement Change, Manager must giveSprint PCS within 10 Business Days after Sprint PCS provides Manager withnotice of the Program Requirement Change:

 

(i)                                     writtennotice that Manager declines to implement the Capital Program RequirementChange, and

 

(ii)                                  awritten assessment of the impact of the Capital Program Requirement Change onManager using the parameter set forth above.

 

Manager mustimplement a Capital Program Requirement Change if:

 

(i)                                     thecapital requirement associated with such Program Requirement Change is for anetwork capacity expansion due to a change in a service plan, provided thatimplementing the Program Requirement Change will not exceed any of theparameters described in section 9.3.1(a), or

 

(ii)                                  thecapital requirement associated with such Program Requirement Change is necessaryto comply with network performance standards required under this agreement.

 

If Manager has theright to decline a Program Requirement Change, Sprint PCS may modify the scopeof the Program Requirement Change in all or certain of Manager’s markets to createa positive net present value for the entire Program Requirement Change, andManager will implement the modified Program Requirement Change. Section 9.3.2governs any disagreement between the parties regarding the determination of thenet present value of a Program Requirement Change.

 

***9.3.2. Disagreement with Assumptions or Methodology.*** Sprint PCS must notify Manager of any disagreement with Manager’sassumptions or methodology within 10 days after its receipt of Manager’sassessment under section 9.3.1.  Managerwill not be required to implement the Program Requirement Change if Sprint PCSfails to notify Manager of any disagreement within this 10-day period unlessSprint PCS requires such compliance under section 9.3.3 below.  Either party may escalate the review of theassumptions and methodology underlying the assessment to the parties’respective Chief Financial Officers if Sprint PCS disagrees with Manager’sassessment and the parties are unable to agree on the assumptions andmethodology within 20 days after Sprint PCS notifies Manager of thedisagreement.

 

The parties will mutually select an independent investment banker inthe wireless telecommunications industry (“**Investment Banker**”) to determine

 

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whether theimplementation of the Program Requirement Change will exceed one of theparameters if Sprint PCS and Manager are unable to agree on the assumptions andmethodology to perform the calculations within 30 days after Sprint PCSnotifies Manager of the disagreement. The American Arbitration Association will select the Investment Bankerif the parties do not select the Investment Banker within 50 days after SprintPCS notifies Manager of the disagreement. Sprint PCS and Manager will cooperate fully and provide all informationthat the Investment Banker reasonably requests.  But any Investment Banker that the American ArbitrationAssociation selects, and its investment bank, must have no current engagementwith either Manager or Sprint PCS and must not have been engaged by either suchparty within the 12 calendar months preceding the engagement under thissection.  A business relationshipbetween Manager or Sprint PCS and a commercial bank or other organizationaffiliated with an investment bank will not disqualify the investmentbank.  The Investment Banker will have20 days from the date of engagement to make its decision.

 

Manager will pay any Investment Banker’s fees and implement the ProgramRequirement Change if the parties agree or the Investment Banker determinesthat implementing the Program Requirement Change will not exceed any of theparameters described in section 9.3.1.

 

***9.3.3  One or MoreParameters Exceeded. ***SprintPCS will pay the Investment Banker’s fees if the parties agree or theInvestment Banker determines that implementing the Program Requirement Changewill exceed at least one of the parameters described in section 9.3.1.  Sprint PCS may require Manager to implementthe Program Requirement Change whether the parties agree or disagree or theInvestment Banker determines that implementing the Program Requirement Changewill exceed at least one of the parameters described in section 9.3.1, ifSprint PCS agrees to compensate Manager the amount necessary to prevent Managerfrom exceeding the parameters set forth in section 9.3.1.

 

***9.3.4  Changes withRespect to Pricing Plans and Roaming Program Requirements.***  Manager will implement a change with respectto the following in the manner requested by Sprint PCS, even if Manager determinesthat implementing the change will have an adverse impact on Manager that meetsor exceeds the tests set forth in section 9.3.1(a) or section 9.3.1(b):

 

(i)                                     relatesto a pricing plan under section 4.4 or a roaming program, and

 

(ii)                                  SprintPCS reasonably determines must be implemented on an immediate or expeditedbasis to respond to competitive market forces.

 

Manager’s implementation of the change will not adversely affectManager’s right to object to the implementation of the change.  Manager will continue to comply with thechange if the parties agree or the Investment Banker

 

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determines (usingthe procedure described in section 9.3.2) that implementing the change will notexceed any of the parameters described in section 9.3.1(a) or section9.3.1(b).  If Sprint PCS does notsuccessfully challenge Manager’s assessment of the adverse impact of the changeon Manager in accordance with section 9.3.2, Sprint PCS can require Managereither to:

 

(i)                                     continueto comply with the change and compensate Manager in the amount necessary toreimburse Manager for any reasonable costs, expenses or losses that Managerincurs as a result of its implementation of the change net of any benefit thatManager receives, to the extent the costs, expenses and losses net of thebenefits exceed the parameters set forth in section 9.3.1(a) or section9.3.1(b), or

 

(ii)                                  terminateits continued compliance with the change and compensate Manager in the amountnecessary to reimburse Manager for any reasonable costs, expenses or lossesthat Manager incurs as a result of its implementation of the change net of anybenefit that Manager receives.

 

Manager cannot terminate its continued compliance if Sprint PCS electsto require Manager’s continued compliance with the change under section 9.3.3above.

 

(c)                                  A new section 9.7 is added to theManagement Agreement:

 

**9.7****                              ****Review of Program Requirements; Unilateral Changes.**

 

(a)                                  Within 120 days after the Effective Dateof Addendum VIII Sprint PCS will review all outstanding Program Requirements todetermine if they need to be revoked, amended or left in place.  Any amendment to a Program Requirement willbe implemented in accordance with section 9.2, subject to section 9.3 withrespect to amendments.

 

(b)                                 Sprint PCS and Manager will in good faithattempt to mutually agree on how to mitigate the adverse economic impact onManager of the exercise of any unilateral right of Sprint PCS under thisagreement, the Services Agreement and either Trademark License Agreement to theextent Manager believes such change will have a significant adverse economicimpact on Manager’s operations, except with respect to changes involving SprintPCS National or Regional Distribution Program Requirements.  For purposes of clarification, the partiesintend the preceding sentence to obligate them to a robust discussion and opendialogue but understand the discussion and dialogue may not lead to anyparticular solution of the issues raised by Manager or Sprint PCS.  By way of illustration, under the secondpreceding sentence if Manager believed that the exercise of the unilateralright to change the Trademark Usage

 

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Guidelines or thedesignation of Sprint PCS Products and Services had an adverse economic impacton Manager, then Manager and Sprint PCS will in good faith attempt to mutuallyagree on how to mitigate the adverse impact on Manager.

 

(d)                                 A new section 9.8 is added to theManagement Agreement.

 

**9.8****                               Breachfor Failure to Implement Program Requirement.**

 

Manager will be inmaterial breach of a material term and Sprint PCS may exercise its rights undersection 11 if Manager declines to implement a Program Requirement when requiredto do so under this agreement.

 

**19.**                            **Fees [NEW].**   (a)                       Article10 of the Management Agreement is amended and restated in its entirety to readas follows:

 

**10.****                            FEES**

 

**10.1****                        General.**    Sprint PCS and Manager will pay to eachother the fees and apply the credits in the manner described in this section10.  The amounts that Sprint PCS is paidor retains are for all obligations of Manager under this agreement.  Many of the definitions for the fees insection 10.2 are found in section 10.3.

 

**10.2****                        Fees.**

 

***10.2.1******              FeeBased on Billed Revenue****.*   Sprint PCS will pay to Manager the Fee Based on Billed Revenue asdetermined in this section 10.2.1.

 

**“Billed Revenue”** isall customer account activity (*e.g.,* all activity billed, attributed orotherwise reflected in the customer account but not including Customer Credits)during the calendar month for which the fees and payments are being calculated(the **“BilledMonth”**) for Sprint PCS Products and Services related to all Customer accounts within a customerservice area (**“CSA”**) assigned tothe Service Area, except (i) OutboundRoaming Fees, (ii) amounts handled separately in this section 10(including the amounts in sections 10.2.3 through 10.2.6, 10.4 and 10.8), (iii)amounts collected from Customers and paid to governmental or regulatoryauthorities (*e.g.,*Customer Taxesand USF Charges), and (iv) other amounts identified in this agreement asnot included in Billed Revenue (these Customer accounts being **“ManagerAccounts”**).

 

BilledRevenue does not include new activity billed to the Customer solely to recovercosts incurred by Sprint PCS, Manager or both related solely to such newactivity.  Manager and Sprint PCS willshare the revenues from this billing in proportion to the costs they incur.

 

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Forpurposes of clarification, the parties have in place procedures to assignCustomers to CSAs and expect those procedures to remain in place after theEffective Date.

 

IfSprint PCS or Manager develops products or services that bundle Sprint PCSProducts and Services with other products or services (*e.g.*, local service orbroadband wireline service), then Sprint PCS and Manager will use commerciallyreasonable efforts to agree on the proper allocation of revenue, bad debtexpenses, credits and promotions for the bundled products and services.

 

SprintPCS will reasonably determine the amount of credits applied to Manager Accountsduring the Billed Month (**“Customer Credits”**).

 

**“Net Billed Revenue”**for a Billed Month is the amount of the Billed Revenue less the CustomerCredits.

 

The “**Fee Based onBilled Revenue**” for a Billed Month is equal to 92% of (a) Net BilledRevenue, less (b) the Allocated Write-offs for Net Billed Revenue.

 

***10.2.2******              OutboundRoaming Fee.***    Sprint PCS willpay to Manager a fee equal to the amount of Outbound Roaming Fees that SprintPCS or its Related Parties bills to Manager Accounts, less the AllocatedWrite-offs for Outbound Roaming Fees. For purposes of clarification, Sprint PCS will settle separately withManager the direct cost of providing the capability for the Outbound Roaming,including any amounts payable to the carrier that handled the roaming call andthe clearinghouse operator for Outbound Roaming.

 

***10.2.3******              PhaseII E911 Surcharges.****   *SprintPCS will pay to Manager a fee equal to a portion of the E911 Phase IISurcharges (attributable to incremental costs for Phase II E911, including butnot limited to related handset costs, routing costs, implementation costs,trunks and testing costs, and anticipated write-offs for bad debt) billedduring the Billed Month to Customers with an NPA-NXX assigned to the ServiceArea, less the Allocated Write-offs for that portion of E911 Phase IISurcharges in the Billed Month.  Theportion of the billed amount attributed to Manager will be based on Manager’sproportional cost (as compared to Sprint PCS’ proportional cost) to comply withPhase II of the E911 requirements. Sprint PCS will determine from time to time the rate billed to Customersrelated to Phase II E911 and the portion payable to Manager.

 

***10.2.4******              WirelessLocal Number Portability Surcharges.***   Sprint PCS will pay to Manager a fee equal to a portion of the WirelessLocal Number Portability Surcharges (**“WLNP Surcharges”**) billed during the BilledMonth to Customers with an NPA-NXX assigned to the Service Area, less theAllocated Write-offs for that portion of the WLNP Surcharges in the BilledMonth.  The portion of the billed amountattributed to Manager will be based on Manager’s proportional cost (as comparedto Sprint PCS’ proportional cost) to comply with

 

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Wireless Local NumberPortability requirements.  Sprint PCSwill determine from time to time the rate billed to Customers related to WLNPSurcharges and the portion payable to Manager.

 

***10.2.5******              CustomerEquipment Credits.***    Sprint PCSwill apply as a credit to any other fees under this section 10.2 owing bySprint PCS to Manager an amount equal to the amount of the Customer EquipmentCredits less the Allocated Write-offs for Customer Equipment Credits.

 

***10.2.6******              Write-offs for Customer Equipment Charges.***    Sprint PCS will apply as a credit to any other fees under thissection 10.2 owing by Sprint PCS to Manager an amount equal to the amount ofthe Allocated Write-offs for Customer Equipment Charges.

 

**10.3 Definitions used in fee calculations**

 

***10.3.1******              Write-offs.   ***Sprint PCS will determine theamounts written off net of deposits applied (the **“Write-offs”**) in the SprintPCS billing system during the Billed Month relating to Manager Accounts.

 

***10.3.2******              BilledComponents.******                                  ***Eachof the following amounts is referred to as a **“Billed Component”** andcollectively they are referred to as the **“Billed Components”**.

 

*10.3.2.1**    NetBilled Revenue.*    The amountdetermined as described in section 10.2.1.

 

*10.3.2.2**    CustomerEquipment Credits.*    Thereductions of amounts billed to Manager Accounts related to the sale ofhandsets and handset accessories from Sprint PCS inventory are referred to as **“CustomerEquipment Credits”**.  This isa negative amount that reduces the Amount Billed (Net of Customer Credits).

 

*10.3.2.3**    100%Affiliate Retained Amounts.*   The amounts referred to as “100% Affiliate Retained Amounts” on Exhibit10.3, to which Manager is entitled to 100% of the amounts that Customersare billed for such items.

 

*10.3.2.4**    100%Sprint PCS Retained Amounts.**   ***Theamounts referred to as “100% Sprint PCS Retained Amounts” on Exhibit 10.3,to which Sprint PCS is entitled to 100% of the amounts that Customers arebilled for such items.

 

*10.3.2.5**    CustomerEquipment Charges.**   ***Theamounts that Sprint PCS bills to Manager Accounts for subscriber equipment andaccessories sold or leased are referred to as **“Customer Equipment Charges”**.

 

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*10.3.2.6**    E911 Phase II Surcharges. *The amounts that Sprint PCS bills toManager Accounts to recover all costs related to Phase II E911 functionalityare referred to as **“E911 Phase II Surcharges”**.

 

*10.3.2.7**    USFCharges.**  *** The amounts that Sprint PCS bills to ManagerAccounts relating to Universal Service Funds are referred to as **“USFCharges”**.

 

*10.3.2.8**    WLNPSurcharges.**  *** The amounts that Sprint PCS bills to ManagerAccounts to recover costs related to WLNP activities.

 

***10.3.3******              AmountBilled (Net of Customer Credits).*** The “**Amount Billed (Net of****Customer Credits)**” for a Billed Month isequal to the sum of the Billed Components.

 

***10.3.4******              TheAllocated Write-offs.***    The “**AllocatedWrite-offs**” for all or a portion of a Billed Component in a BilledMonth is the Write-offs for the Billed Month times the amount of the BilledComponent (or portion thereof) divided by the Amount Billed (Net of CustomerCredits).

 

**10.4****                        OtherFees and Payments. **Sprint PCS andManager will pay to each other the fees and payments described below:

 

***10.4.1******              InterService Area Fees and Reseller Customer Fees.***

 

*10.4.1.1**                               InterService Area Fee and Reseller Customer Fee Paid.*    Manager will pay to Sprint PCS an InterService Area Fee as set forth in this section 10.4.1 for each billed minute orkilobyte of use that a Customer with an NPA-NXX assigned to the Service Areauses a portion of the Sprint PCS Network other than the Service AreaNetwork.  Sprint PCS will pay to Manageran Inter Service Area Fee for each billed minute or kilobyte of use that aCustomer whose NPA-NXX is not assigned to the Service Area Network uses theService Area Network.  Sprint PCS willpay to Manager the fees set forth in this Section 10.4.1 for each billed minuteor kilobyte of use that a Reseller Customer uses the Service Area Networkunless otherwise negotiated (such fees are referred to in this agreement as **“Reseller Customer Fees”**).

 

Sprintmay not amend, modify or change in any manner the Inter Service Area Feesbetween Sprint PCS and Manager or Reseller Customer Fees and other matters setforth in this section 10.4.1 without Manager’s prior written consent.  For purposes of clarification, the partiesdo not intend the above sentence to limit Sprint PCS’ ability to negotiate feeswith resellers.

 

SprintPCS will not be obligated to pay Manager those Inter Service Area Fees notreceived by Sprint PCS from an Other Manager who is a debtor in a bankruptcyproceeding with respect to Inter Service Area Fees that Sprint PCS owes Managerbecause of CSAs assigned to such Other Manager’s Service Area traveling in theService Area.  For clarificationpurposes, Sprint PCS

 

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does not have to advancethe Inter Service Area Fees for the Other Manager who is involved in thebankruptcy proceeding to Manager, to the extent that the Other Manager fails topay the Inter Service Area Fees. Manager bears the risk of loss of the Other Manager who is involved inthe bankruptcy proceeding not paying the Inter Service Area Fees to Sprint PCS.

 

If relief isordered under title 11 of the United States Code for an Other Manager or anOther Manager files a voluntary petition for relief under title 11 of theUnited States Code and such Other Manager fails to pay to Sprint PCS amountsthat such Other Manager owes to Sprint PCS with respect to the Inter ServiceArea Fees for travel into Manager’s Service Area, Sprint PCS will immediatelyassign to Manager all of its claims and rights as a creditor of such OtherManager for those amounts owed with respect to Inter Service Area Fees fortravel in Manager’s Service Area. Sprint PCS agrees to take all actions necessary to effect thisassignment of rights to Manager, and further agrees that Manager will not beresponsible for any expenses related to such assignment.  If Sprint PCS receives any amounts from anOther Manager involved in a bankruptcy proceeding with respect to Inter ServiceArea Fees for travel into the Service Area, Sprint PCS will immediately remitthose amounts to Manager.  If relief isordered under title 11 of the United States Code for Sprint PCS or Sprint PCSfiles a voluntary petition for relief under title 11 of the United States Code,then Sprint PCS will be deemed a trustee for Manager’s benefit with respect toany Inter Service Area Fees that Sprint PCS collects from Other Managers fortravel into Manager’s Service Area, and Sprint PCS has no rights to Manager’sportion of such Inter Service Area Fees.

 

Manageracknowledges that if the manner in which the CSAs are assigned changes becauseof changes in the manner in which the NPA NXX is utilized, the manner in whichthe Inter Service Area Fees and Reseller Customer Fees, if any, will becalculated might be changed accordingly.

 

*10.4.1.2**                               Voiceand 2G Data Rate*.    The amountof the Inter Service Area Voice and 2G Data Fee and Reseller Customer Voice and2G Data Fee will be as follows:

 

(a)                                  TheInter Service Area Voice and 2G Data Fee for each billed minute of use that aCustomer uses an Away Network and the Reseller Customer Fee for each billedminute of use that a Reseller Customer uses the Service Area Network, will be$0.058 from the Effective Date to December 31, 2006.

 

(b)                                 Foreach calendar year during the Term of this agreement beginning January 1, 2007,the Inter Service Area Voice and 2G Data Fee for each billed minute of use thata Customer uses an Away Network and the Reseller Customer Fee for each billedminute of use that a Reseller Customer uses the Service Area Network, will bean amount equal to 90% of Sprint PCS’ Retail Yield for Voice and 2G Data Usage

 

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for the previous calendaryear; provided that such amount for any period will not be less than Manager’s network costs******(including a reasonable return usingManager’s weighted average cost of capital applied against Manager’s netinvestment in the Service Area Network) to provide the services that aresubject to the Inter Service Area Voice and 2G Data Fee.  If the parties have a dispute relating tothe determination of the foregoing fees for any period, then the parties willsubmit the dispute to binding arbitration as set forth in section 10.4.1.3(b).

 

*10.4.1.3**                               3GData Rate*.    The amount of theInter Service Area 3G Data Fee and Reseller Customer 3G Data Fee will be asfollows:

 

(a)                                  Fromthe Effective Date to December 31, 2006 (“**Initial 3G Data Fee Period**”), the InterService Area 3G Data Fee for each kilobyte of use that a Customer uses an AwayNetwork and the Reseller Customer 3G Data Fee for each kilobyte of use that aReseller Customer uses the Service Area Network, will be $0.0020; except duringthe Initial 3G Data Fee Period the Reseller Customer 3G Data Fee for Qwestreseller customers only will be determined and settled as provided in theletter agreement between Sprint PCS and Manager dated July 29, 2003 (the “**Qwest Reseller 3G Data Agreement**”).

 

(b)                                 Theparties will reset the Inter Service Area 3G Data Fee and the Reseller Customer3G Data Fee after the Initial 3G Data Fee Period ends; except after the periodends the Reseller Customer 3G Data Fee for Qwest reseller customers only willbe determined and settled as provided in the Qwest Reseller 3G DataAgreement.  The Inter Service Area 3GData Fee and the Reseller Customer 3G Data Fee will be based on an appropriatediscount from the Sprint PCS RetailYield for 3G Data Usage for the previous calendar year to be negotiatedbefore December 31, 2006.  Eachsubsequent fee period will last three******years with, for example, the second pricing periodbeginning on January 1, 2007 and ending on December 31, 2009.

 

Theprocess for resetting the fees is as follows:

 

(i)                                     SprintPCS will give Manager a proposal for the appropriate discount from the SprintPCS Retail Yield for 3G Data Usage by March 31 of the final year of the thencurrent pricing period.  Manager’srepresentative and the Sprint PCS representative will begin discussionsregarding the proposed schedule of fees within 20 days after Manager receivesthe proposed schedule of fees from Sprint PCS.

 

(ii)                                  Managermay escalate the discussion to the Chief Financial Officer of Sprint PCS orSprint PCS may escalate the discussion to Manager’s Chief Executive Officer orChief

 

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Financial Officer if theparties do not agree on a new schedule of fees within 30 days after thediscussions begin.

 

(iii)                               Ifthe parties cannot agree on a new schedule of fees within 20 days after a partyescalates the discussion, then Manager may either agree to the fees set forthin the Inter Service Area 3G Data Fee and Reseller Customer 3G Data Feeproposal or submit the determination of the Inter Service Area 3G Data Fee andReseller Customer 3G Data Fee (other than the matters set forth in the QwestReseller 3G Data Agreement) to binding arbitration based on a market-ratedetermination of an appropriate Inter Service Area 3G Data Fee and ResellerCustomer 3G Data Fee in accordance with section 14.2, excluding the escalationprocess set forth in section 14.1.

 

(iv)                              IfManager submits the matter to arbitration the fees that Sprint PCS proposedwill apply starting after December 31 of the first year of the appropriateperiod as described in section 10.4.1.4 and will continue in effect unlessmodified by the final decision of the arbitrator.  If the arbitrator imposes a fee different than the ones in effectthe new fees will be applied as if in effect after December 31 of the firstyear of the appropriate period as described in section 10.4.1.4 and if onapplication of the new fees one party owes the other party any amount aftertaking into account payments the parties have already made then the owing partywill pay the other party within 30 days of the date of the final arbitrationorder.

 

*10.4.1.4**                                     RateChanges – Effective Date.*  Allrate changes related to Inter Service Area Fees and Reseller Customer Fees willbe applied to all activity in a bill cycle regardless of when the activityoccurred, if the bill cycle ends after the effective date of the rate change.

 

*10.4.1.5**                                     LongDistance.*    The long distancerates associated with the Inter Service Area and Reseller Customer usage willbe equal to the actual wholesale transport and terminating costs associatedwith the originating and terminating locations.  The rates are then applied to cumulative usage at a BID level forsettlement purposes.

 

***10.4.2******              InterconnectFees*. **Manager will pay toSprint PCS (or to other carriers as appropriate) monthly the interconnect fees,if any, as provided under section 1.4.

 

***10.4.3******              Terminatingand Originating Access Fee.*** Sprint PCS will pay Manager 92% of any terminating or originating accessfees Sprint PCS collects from an IXC that are not subject to refund or dispute(but it will not be Billed Revenue).  For purposes of clarification, SprintCorporation’s Related

 

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Partiesare obligated to pay terminating access to Sprint PCS only if MCI and AT&Tpay terminating or originating access to Sprint PCS.  At the Effective Date of Addendum VIII, neither MCI norAT&T pays terminating access to Sprint PCS.  The ability of wireless carriers to collect access fees iscurrently subject to legal challenge. The parties acknowledge that Sprint PCShas limited ability to require IXCs to pay access fees.

 

***10.4.4******              Reimbursementsfor Mistaken Payments*.**  If oneparty mistakenly pays an amount that the other party is obligated to pay thenthe other party will reimburse the paying party, if the paying party identifiesthe mistake and notifies the receiving party within 9 calendar months after thedate on which the paying party makes the mistaken payment.

 

**10.5****                        Taxesand Payments to the Government.** Manager will pay or reimburse Sprint PCS for any sales, use, grossreceipts or similar tax, administrative fee, telecommunications fee orsurcharge for taxes or fees that a governmental authority levies on the feesand charges payable by Sprint PCS to Manager.

 

Managerwill report all taxable property to the appropriate taxing authority for advalorem tax purposes.  Manager will payas and when due all taxes, assessments, liens, encumbrances, levies and othercharges against the real estate and personal property that Manager owns or usesin fulfilling its obligations under this agreement.

 

Manageris responsible for paying all sales, use or similar taxes on the purchase anduse of its equipment, advertising and other goods or services in connectionwith this agreement.

 

SprintPCS will be solely responsible for remitting to government agencies or theirdesignees any and all fees or other amounts owed as a result of the servicesprovided to the Customers under the Management Agreement.  As a consequence of this responsibility,Sprint PCS is entitled to 100% of any amounts that Manager, Sprint PCS or theirRelated Parties receives from Customers (including Customers whose NPA-NXX isassigned to the Service Area) relating to these fees or other amounts.

 

**10.6****                        UniversalService Funds.**

 

***10.6.1******           Paidby Government. *** Manager is entitled to 100% of any federaland state subsidy funds (the **“Subsidy Funds”**), including UniversalService Funds, that Manager or Sprint PCS receives from governmentdisbursements based on customers with mailing addresses located in the ServiceArea and with NPA-NXXs assigned to the Service Area, or such other method thenin effect under the rules of the FCC, Universal Service Administrative Companyor other federal or state administrator. For purposes of clarity, Universal Service Funds provide supportpayments to Eligible

 

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TelecommunicationsCarriers (**“ETC”**)serving in high cost areas or providing services to low incomeindividuals.  Sprint PCS will file onbehalf of itself or Manager appropriate ETC documentation in thosejurisdictions in which Sprint PCS determines to make the filing.

 

IfManager asks Sprint PCS to make a filing in a jurisdiction and Sprint PCSreasonably determines not to make the filing because making the filing isdetrimental to Sprint’s best interests, then Sprint does not have to make thefiling.  If Manager disagrees with thereasonableness of Sprint PCS’ determination not to make the filing, then theparties will submit to binding arbitration in accordance with section 14.2,excluding the escalation process set forth in section 14.1.

 

If theprocess set forth in the previous paragraph results in Sprint PCS making afiling, Manager will pay all of Sprint PCS’ reasonable out-of-pocket costsassociated with the filing and any compliance obligations that arise from thefiling or that are imposed by the jurisdiction in which the filing is made(e.g. filing fees, legal fees, expert witness retention, universal lifelineservice, enhancing customer care quality, and including, without limitation,network upgrades).  Sprint PCS willremit to Manager 50% of any Subsidy Funds that Sprint PCS receives from filingsSprint PCS is required to make under the preceding paragraph that are notpayable to Manager under the first paragraph of this section 10.6.1, until theaggregate amount of the payments to Manager under this sentence equal 50% ofthe amount Manager has paid Sprint PCS under the preceding sentence.

 

AllSubsidy Funds received must be used to support the provision, maintenance andupgrading of facilities and services for which the funds are intended.  Sprint PCS will attempt to recover from theappropriate governmental authority Subsidy Funds and will remit the appropriaterecoveries to Manager.

 

***10.6.2******              Paidby Customers.* **Sprint PCS willbe solely responsible for remitting to government agencies or their designees,including but not limited to the Universal Service Administrative Company,all universal service fees.   As aconsequence of this responsibility, Sprint PCS is entitled to 100% of anyamounts that Manager, Sprint PCS or their Related Parties receives fromCustomers (including Customers whose NPA-NXX is assigned to the Service Area)relating to the Universal Service Funds.

 

**10.7****                        EquipmentReplacement Program.**  Sprint PCS isentitled to 100% of the amounts that Customers pay for participating in anyequipment replacement program billed on their Sprint PCS bills.*** ***Manager will not be responsible for or in any way billedfor any costs or expenses that Sprint PCS or any Sprint PCS Related Partyincurs in connection with any such equipment replacement program.

 

**10.8****                        CustomerEquipment.** Sprint PCS is entitledto 100% of the amounts that Customers pay for subscriber equipment andaccessories sold or

 

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leased by Sprint PCS, andManager is entitled to 100% of the amounts that Customers pay for subscriberequipment and accessories that Manager sold or leased, subject to the equipmentsettlement process in section 4.1.2.

 

**10.9****                        PhaseI****E911. **Sprint PCS is entitled to collect100% of the E911 Phase I Surcharges (*e.g.,* for equipment other than handsets,such as platforms and networks).  SprintPCS will attempt to recover from the appropriate governmental authority Phase IE911 reimbursements and will remit the appropriate amounts to Manager.

 

**10.10****                 ManagerDeposits into Retail Bank Accounts. **EachBusiness Day, Manager will deposit into bank accounts and authorize Sprint PCSor a Related Party that Sprint PCS designates to sweep from such accounts theamounts collected from Customers on behalf of Sprint PCS and its RelatedParties for Sprint PCS Products and Services. Manager will allow the funds deposited in the bank accounts to betransferred daily to other accounts that Sprint PCS designates.  Manager will also provide the daily reportsof the amounts collected that Sprint PCS requires.  Manager will not make any changes to the authorizations anddesignations Sprint PCS designates for the bank accounts without Sprint PCS’prior written consent.

 

**10.11****                 MonthlyStatements**.

 

***10.11.1******       Section10.2 Statement.***  Each monthSprint PCS will determine the amount payable to or due from Manager for aBilled Month under section 10.2.  SprintPCS will deliver a monthly statement to Manager that reports the amount due toManager, the manner in which the amount was calculated, the amount due toSprint PCS and its Related Parties under this agreement and the ServicesAgreement, and the net amount payable to or due from Manager.

 

***10.11.2******       OtherStatements***.  Sprint PCS willdeliver a monthly statement to Manager that reports amounts due to Manager orfrom Manager, other than amounts described in section 10.12.1, the manner inwhich the amounts were calculated, the amount due to Manager or to Sprint PCSand its Related Parties under this agreement and the Services Agreement, andthe net amount payable to Manager.

 

***10.11.3******       ThirdParty Charges.***  Sprint PCS willinclude any third party charges on Manager’s statements within three calendarmonths after the end of the calendar month during which Sprint PCS receives thethird party charge.  Sprint PCS’ failureto include these charges on Manager’s statements within the three calendarmonth-period will mean that Sprint PCS cannot collect those third party chargesfrom Manager.

 

**10.12****                 Payments.**

 

***10.12.1******       WeeklyPayments.***  Sprint PCS will paythe amount payable to Manager for a Billed Month under section 10.2 in equalweekly

 

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payments on consecutiveThursdays beginning the second Thursday of the calendar month following theBilled Month and ending on the first Thursday of the second calendar month afterthe Billed Month.  If Sprint PCS isunable to determine the amount due to Manager in time to make the weeklypayment on the second Thursday of a calendar month, then Sprint PCS will payManager for that week the same weekly amount it paid Manager for the previousweek.  Sprint PCS will true-up anydifference between the actual amount due for the first weekly payment of theBilled Month and amounts paid for any estimated weekly payments after SprintPCS determines what the weekly payment is for that month. Sprint PCS will usereasonable efforts to true-up within 10 Business Days after the date on whichSprint PCS made the estimated weekly payment.

 

***10.12.2******       MonthlyPayments.   ***The amounts payableto Manager and Sprint PCS and its Related Parties under this agreement and theServices Agreement, other than the payments described in section 10.12.1, willbe determined, billed and paid monthly in accordance with section 10.12.3.

 

***10.12.3******       Transitionof Payment Methods.***** **(a)  Sprint PCS and Manager wish to conduct anorderly transition from making weekly payments to Manager based on CollectedRevenues to weekly payments based on Billed Revenue.  The method of calculating the weekly payments will change on thefirst day of the calendar month after the Effective Date of Addendum VIII (the **“TransitionDate”**).  The weekly amountspaid to Manager during the calendar month before the Transition Date and on thefirst Thursday after the Transition Date will be based on the CollectedRevenues method.  The weekly amounts paidto Manager beginning on the second Thursday of the second calendar month afterthe Transition Date will be based on the Billed Revenue method described inthis section 10.  To effect an orderlytransition, Sprint PCS will pay Manager for the period beginning on the secondThursday after the Transition Date and ending on the first Thursday of thecalendar month after the Transition Date an amount calculated as describedbelow in section 10.12.3(b).

 

(b)  Sprint PCS will apply the estimatedcollection percentages that Sprint PCS uses before the Transition Date to thegross accounts receivable aging categories for Customers with an NPA-NXXassigned to the Service Area as of the close of business on the day before theTransition Date to calculate the amount Sprint PCS anticipates collecting onthose accounts receivable.  Sprint PCSwill pay Manager the amount estimated to be collected in equal weekly paymentson consecutive Thursdays beginning the second Thursday after the TransitionDate and ending the first Thursday of the calendar month after the TransitionDate.  Sprint PCS will also pay toManager no later than the second Thursday after the Transition Date anyCollected Revenues received after the Saturday before the Transition Date andbefore the Transition Date.

 

(c)  Sprint PCS will recalculate the estimatedcollection percentages and apply the recalculated estimated collectionpercentages to the gross accounts receivable aging categories described in thefirst sentence of

 

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section 10.12.3(b) whenall applicable data is available. Sprint PCS will increase or decrease a weekly payment by the amount ofthe difference between the amount paid to Manager based on the initialestimated collection percentages and the amount that would have been paid toManager using the newer estimated collection percentages.

 

**10.13****                 Disputeor Correction of Statement Amount.** A party can only dispute or correct an amount on a statement in goodfaith.  If a party disputes or correctsan amount on a statement, the disputing or correcting party must give the otherparty written notice of the specific item disputed or corrected, the disputedor corrected amount with respect to that item and the reason for the dispute orcorrection within three calendar months after the end of the calendar monthduring which the disputed or erroneous statement was delivered.

 

Anydispute regarding a statement will be submitted for resolution under thedispute resolution process in section 14. The parties must continue to pay to the other party all amounts, exceptdisputed amounts (subject to the next paragraph), owed under this agreement andthe Services Agreement during the dispute resolution process.  If the aggregate disputed amount, combinedwith any aggregate disputed amount under section 10.14, exceeds $1,000,000, andupon the written request of the other party, the party disputing the amount(the “**Disputing Party**”) willdeposit the portion of the disputed amount in excess of $1,000,000 into anescrow account that will be governed by an escrow agreement in a form to bemutually agreed upon by the parties. The Disputing Party will deposit the amount into the escrow accountwithin 10 Business Days after its receipt of the written request from the otherparty in accordance with the foregoing. If the Disputing Party complies with the requirements of this paragraph,then the other party or its Related Parties may not declare the Disputing Partyin breach of this agreement or the Services Agreement because of nonpayment ofthe disputed amount, pending completion of the dispute resolution process.

 

Theescrow agent will be an unrelated third party that is in the business ofserving as an escrow agent for or on behalf of financial institutions.  The parties will share evenly the escrowagent’s fees.  The escrow agent willinvest and reinvest the escrowed funds in interest-bearing money marketaccounts or as the parties otherwise agree. The escrow agent will disburse the escrowed funds in the following mannerbased on the determination made in the dispute resolution process:

 

(a)                                  Ifthe Disputing Party does not owe any of the disputed amounts, then the escrowagent will return all of the escrowed funds to the Disputing Party with theinterest earned on the escrowed funds.

 

(b)                                 Ifthe Disputing Party owes all of the disputed amounts, then the escrow agentwill disburse all of the escrowed funds with the interest earned on theescrowed funds to the non-disputing party.

 

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If the interest earned isless than the amount owed based on the Default Rate, then the Disputing Partywill pay the non-disputing party the difference between those amounts.

 

(c)                                  Ifthe Disputing Party owes a portion of the disputed amounts, then the escrowagent will disburse to the non-disputing party the amount owed with interest atthe Default Rate from the escrowed funds and disburse the balance of theescrowed funds to the Disputing Party. The Disputing Party will pay the non-disputing party the amount owed forinterest at the Default Rate if the amount of the escrowed funds isinsufficient.

 

Managerand Sprint PCS will take all reasonable actions necessary to allow theDisputing Party to continue to reflect the amounts deposited into the escrowaccount by the Disputing Party as assets in the Disputing Party’s financialstatements.

 

Theparties will use the dispute resolution process under section 14.2 of thisagreement, excluding the escalation process set forth in section 14.1, if theycannot agree on the form of escrow agreement.

 

Theparties agree that, despite this section 10.13, Manager will pay all disputedamounts due to Sprint PCS or any Related Party for fees for CCPU Services andCPGA Services payable under the Services Agreement for periods ending on orbefore December 31, 2006, subject to any other rights and remedies that Managerhas under this agreement and the Services Agreement.

 

Thedispute of an item in a statement does not stay or diminish a party’s otherrights and remedies under this agreement, except that a party must complete thedispute resolution process in section 14 before taking any legal or equitableaction against the other party.

 

**10.14****                 Disputeor Correction of a Third Party Invoice Amount.**  Sprint PCS will include the applicable portion of any amountbased on a third party invoice in a statement to Manager within three calendarmonths after Sprint PCS’ receipt of the third party invoice.  Sprint PCS’ failure to include the amount ina statement to Manager within the three calendar month-period will mean thatthe third party charges will not be collectible from Manager.

 

Aparty can dispute or correct an amount based on a third party invoice only ingood faith.  Modified invoices receivedby Sprint PCS from a third party vendor and then sent by Sprint PCS to Managerwill be treated as a new statement for purposes of this section, so long as themodified statement was revised in good faith and not simply to provide SprintPCS additional time to resubmit a previous invoice.

 

If aparty disputes or corrects an amount on a third party invoice or the amountSprint PCS attributed to Manager, the disputing party must give the other

 

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party written notice ofthe specific item disputed or corrected, the disputed or corrected amount withrespect to that item and the reason for the dispute or correction within threecalendar months after the end of the calendar month during which the disputedor erroneous statement was delivered. Sprint PCS and Manager will cooperate with each other to obtain theinformation needed to determine if the amounts billed by the third party andallocated to Manager were correct.

 

Anydispute regarding the amount of the third party invoice Sprint PCS attributedto Manager will be submitted for resolution under the dispute resolutionprocess in section 14.  Managermust continue to pay to Sprint PCS all amounts, except disputed amounts, owedunder this agreement and the Services Agreement during the informationgathering and dispute resolution process. If the aggregate disputed amount, combined with any aggregate disputedamount under section 10.13, exceeds $1,000,000, and upon the written request ofSprint PCS, Manager will deposit the portion of the disputed amount in excessof $1,000,000 into an escrow account that will be governed by an escrowagreement containing terms similar to the general terms described in section10.13 and in a form to be mutually agreed upon by the parties.  Manager will deposit the amount into theescrow account within 10 Business Days after its receipt of the written requestfrom Sprint PCS in accordance with the foregoing.  If Manager complies with the requirements of this paragraph, thennone of Sprint PCS or its Related Parties may declare Manager in breach of thisagreement or the Services Agreement because of nonpayment of the disputedamount, pending completion of the dispute resolution process.

 

Thedispute of an item in a statement does not stay or diminish a party’s otherrights and remedies under this agreement, except that the parties must completethe dispute resolution process in section 14 before taking any legal orequitable action against each other.

 

**10.15****                 LatePayments**.  Any amount due under thisagreement or the Services Agreement without a specified due date will be due 20days after Manager receives an invoice. Any amount due under this agreement and the Services Agreement(including without limitation any amounts disputed under those agreements thatare ultimately determined to be due) that is not paid by one party to the otherparty in accordance with the terms of the applicable agreement will bearinterest at the Default Rate beginning (and including) the 5th day after theinvoice or settlement due date until (and including) the date paid.

 

**10.16****                 SetoffRight If Failure To Pay Amounts Due.** If Manager fails to pay any undisputed amount due Sprint PCS or aRelated Party of Sprint PCS under this agreement, any undisputed amount dueSprint PCS or a Related Party of Sprint PCS under the Services Agreement or anyother agreement with Sprint PCS or a Related Party of Sprint PCS, or anydisputed amount due to Sprint PCS or a Related Party for fees for CCPU Servicesor CPGA Services payable under the Services Agreement, then 5 days after thepayment due date Sprint PCS may setoff against its payments to Manager under

 

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this section 10 any suchundisputed amount that Manager owes to Sprint PCS or a Related Party of SprintPCS. This right of setoff is in addition to any other right that Sprint PCS ora Related Party of Sprint PCS might have under this agreement, the ServicesAgreement or any other agreements with Sprint PCS or a Related Party of SprintPCS.

 

**20.****                               FinancingConsideration [Addm I, §7]**. Section 11.3.6 is amended and restated in its entirety to read asfollows:

 

11.3.6  Financing Considerations.  At the election of Sprint PCS or Managerthis agreement may be terminated upon the failure of Manager to obtain thefinancing described in Exhibit 1.7 by the deadline(s) set forth on suchExhibits.

 

**21.****                               TerminationRights [NEW].**  Section 11.3.7 isdeleted, and all references in the agreement to section 11.3.7 are alsodeleted.

 

**22.****                               Effectof an Event of Termination [Addm I, §8].**  The new subsection 11.4(a)(iii) is added to the ManagementAgreement:

 

(iii)                               inthe case of an Event of Termination under section 11.3.6, give the other partywritten notice that the agreement is terminated effective as of the date of thenotice, in which case all rights and obligations of each party under thisagreement will immediately cease and neither party will have any remedy orclaim for damages.

 

**23.****                               Non-terminationof Agreement [Addm II, §13].** Sections 11.5.3 and 11.6.4 are replaced with the following paragraphs:

 

***11.5.3 Manager’s Action for Damages or Other Relief.***  Manager, in accordance with the disputeresolution process in section 14, may seek damages or other appropriate relief,but such action does not terminate this agreement.

 

***11.6.4 Sprint PCS’ Action for Damages or Other Relief.***  Sprint PCS, in accordance with the disputeresolution process in section 14, may seek damages or other appropriate relief,but such action does not terminate this agreement.

 

**24.**                               **Audit [NEW]. **Section 12.1.2 is amended and restatedin its entirety to read as follows:

 

***12.1.2******              Audits****.*  On reasonable advance notice by one party,the other party must provide its independent or internal auditors access to itsappropriate financial and operating records, including, without limitation,vendor and distribution agreements, for purposes of auditing the amount of fees(including the appropriateness of items excluded from the Fee Based on BilledRevenue), costs, expenses (including operating metrics referred to in thisagreement and the Services Agreement relating to or used in the determinationof Inter Service Area

 

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Fees, Reseller CustomerFees, CCPU Services or CPGA Services) or other charges payable in connectionwith the Service Area for the period audited. The party that requested the audit may decide if the audit is conductedby the other party’s independent or internal auditors.  Manager and Sprint PCS may each request nomore than one audit per year.

 

(a)                                  Ifthe audit shows that Sprint PCS was underpaid then, unless the amount iscontested, Manager will pay to Sprint PCS the amount of the underpayment within10 Business Days after Sprint PCS gives Manager written notice of theunderpayment determination.

 

(b)                                 Ifthe audit determines that Sprint PCS was overpaid then, unless the amount iscontested, Sprint PCS will pay to Manager the amount of the overpayment within10 Business Days after Manager gives Sprint PCS written notice of theoverpayment determination.

 

Theauditing party will pay all costs and expenses related to the audit unless theamount owed to the audited party is reduced by more than 10% or the amount owedby the audited party is increased by more than 10%, in which case the auditedparty will pay the costs and expenses related to the audit.

 

SprintPCS will provide a report issued in conformity with Statement of AuditingStandard No. 70 “Reports on the Processing of Transactions by ServiceOrganizations” (“**Type II Report**” or “**Manager Management Report**”) to Managerannually.  If Manager, on the advice ofits independent auditors or its legal counsel, determines that a statute,regulation, rule, judicial decision or interpretation, or audit or accountingrule, policy or literature published by the accounting or auditing professionor other authoritative rule making body (such as the Securities and ExchangeCommission, the Public Company Accounting Oversight Board or the FinancialAccounting Standards Board) requires additional assurances beyond SAS 70, thenSprint PCS will cooperate with Manager to provide the additionalassurances.  Sprint PCS’ independentauditors will prepare any Type II Report or Manager Management Report providedunder this section 12.1.2 and will provide an opinion on the controls placed inoperation and tests of operating effectiveness of those controls in effect atSprint PCS over Manager Management Processes. “Manager Management Processes” include those services generally providedwithin this agreement, primarily billing and collection of revenues.

 

**25.****                               Notices[Addm IV, §5; revised by this Addendum].** Section 17.1 is amended and restated in its entirety to read as follows:

 

**17.1****                        Notices.**  (a) Any notice, payment, invoice, demand or communication required or permittedto be given by any provision of this agreement must be in writing and mailed(certified or registered mail, postage prepaid, return receipt requested), sentby hand or overnight courier, charges prepaid or sent by facsimile or email (ineither instance with acknowledgement or

 

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read receipt received),and addressed as described below, or to any other address or number as theperson or entity may from time to time specify by written notice to the otherparties.  Sprint PCS may give notice ofchanges to a Program Requirement by sending an email that directs Manager tothe changed Program Requirement on the affiliate intranet website.

 

The subject line of any email notice thatpurports to amend any Program Requirement must read “Program RequirementChange” and the first paragraph must indicate (i) which Program Requirement isbeing modified, (ii) what is being modified in the Program Requirement, and(iii) when the Program Requirement will take effect.  The email must also include either a detailed summary of theProgram Requirement change or a redline comparison between the old ProgramRequirement and the new Program Requirement.

 

Anynotice, demand or communication intended to be notice of a breach of anagreement or notice of an Event of Termination must:

 

(A)                              clearlyindicate that intent,

 

(B)                                statethe section(s) of the agreements allegedly breached, and

 

(C)                                bemailed or sent by overnight courier in the manner described in the firstparagraph in this section 17.1.

 

Managerwill promptly give Sprint PCS a copy of any notice Manager receives from theAdministrative Agent or any Lender, and a copy of any notice Manager gives tothe Administrative Agent or any Lender. Sprint PCS will promptly give Manager a copy of any notice that SprintPCS receives from the Administrative Agent or any Lender and a copy of anynotice that Sprint PCS gives to the Administrative Agent or any Lender.

 

All notices and other communicationsgiven to a party in accordance with the provisions of this agreement will bedeemed to have been given when received.

 

(b)  The parties’ notice addresses are asfollows:

 

For all entitiescomprising Sprint PCS:

 

Sprint PCS

KSOPHJ0212-2A101

6130 Sprint Parkway

Overland Park, KS  66251

Telephone: 913-762-7929

Telecopier:  913-523-0539

Email:               dbotto01@sprintspectrum.com

 

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Attention: Vice President- Finance

 

with a copy to:

 

Sprint Law Department

KSOPHT0101-Z2020

6391 Sprint Parkway

Overland Park, KS  66251

Telephone:  913-315-9315

Telecopier:  913-523-9823

Email:john.w.chapman@mail.sprint.com

Attention: John Chapman

 

For Manager:

 

UbiquiTel OperatingCompany

One West Elm Street

Suite 400

Conshohocken, PA  19428

Telephone: 610-832-3311

Telecopier: 610-832-3401

Email:dharris@ubiquitelpcs.com

Attention: Donald A.Harris, President & Chief Executive Officer

 

and

 

UbiquiTel OperatingCompany

One West Elm Street

Suite 400

Conshohocken, PA  19428

Telephone: 610-832-3390

Telecopier: 610-832-3401

Email:drussell@ubiquitelpcs.com

Attention: Dean E.Russell, Chief Operating Officer

 

and

 

UbiquiTel OperatingCompany

One West Elm Street

Suite 400

Conshohocken, PA  19428

Telephone: 610-832-3392

Telecopier: 610-832-3401

Email:jvolk@ubiquitelpcs.com

Attention: James J. Volk,Chief Financial Officer

 

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with a copy to:

 

UbiquiTel OperatingCompany

One West Elm Street

Suite 400

Conshohocken, PA  19428

Telephone: 610-832-3394

Telecopier: 610-832-1076

Email: pknese@ubiquitelpcs.com

Attention: Patricia E.Knese, Vice President & General Counsel

 

and

 

UbiquiTel OperatingCompany

One West Elm Street

Suite 400

Conshohocken, PA  19428

Telephone: 610-832-3354

Telecopier: 610-832-3401

Email:kjones@ubiquitelpcs.com

Attention: Kenneth T.Jones, Vice President & Controller

 

and with copies to thefollowing individuals’ email addresses if a notice of a Program RequirementChange is sent by email:

 

David L. Zylka, Vice President-Engineering

Email:dzylka@ubiquitelpcs.com

 

**26.****                               ForceMajeure [NEW]**.  The secondparagraph of section 17.9.3 is amended and restated in its entirety to read asfollows:

 

Neither Manager nor Sprint PCS, as the case may be, is in breach of anycovenant in this agreement, and no Event of Termination will occur as a resultof the failure of such party to comply with any covenant, if the party’snon-compliance with the covenant results primarily from:

 

(i)                                     anyFCC order or any other injunction that any governmental authority issues thatimpedes the party’s ability to comply with the covenant,

 

(ii)                                  thefailure of any governmental authority to grant any consent, approval, waiver orauthorization or any delay on the part of any governmental authority ingranting any consent, approval, waiver or authorization,

 

(iii)                               thefailure of any vendor to deliver in a timely manner any equipment or service,or

 

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(iv)                              anyact of God, act of war or insurrection, riot, fire, accident, explosion, laborunrest, strike, civil unrest, work stoppage, condemnation or any similar causeor event not reasonably within the control of the party.

 

**27.****                               AnnouncedTransactions [Addm II, §14].** Section 17.24 is deleted.

 

**28.****                               AdditionalTerms and Provisions [Addm II, §15; revised by this Addendum].**  Section 17.25 is replaced with the followingparagraph:

 

**17.25 Additional Terms andProvisions.**  Certainadditional and supplemental terms and provisions of this agreement, if any, areset forth in the Addendum to Sprint PCS Management Agreement, which isincorporated into this agreement by this reference.  Manager represents and warrants that all existing contracts andarrangements (written or verbal) that relate to or affect the rights of SprintPCS or any of its Related Parties under this agreement (*e.g.*, agreements relating tolong-distance telephony services (section 3.4)) are listed on Exhibit 17.25,and Manager agrees to deliver photocopies of such agreements to Sprint PCS uponrequest to the extent permissible by the terms of the agreement.

 

**29.****                               FederalContractor Compliance [Addm II, §16].** A new section 17.28, the text of which is attached as Exhibit Bto Addendum II, is added and incorporated by this reference.

 

**30.****                               Year2000 Compliance [Addm II, §17].** A new section 17.29 is added to the Management Agreement:

 

**17.29****                 Year2000 Compliance.**  Sprint PCS andManager each separately represents and warrants that any system or equipmentacquired, operated or designated by it for use in the Service Area Network orfor use to support the Service Area Network, including (without limitation)billing, ordering and customer service systems, will be capable of correctlyprocessing and receiving date data, as well as properly exchanging date datawith all products (for example, hardware, software and firmware) with which theService Area Network is designed to be used, and will not malfunction or failto function due to an inability to process correctly date data in conformancewith Sprint PCS requirements for “Year 2000 Compliance.”  If the Service Area Network or any systemused to support the Service Area Network fails to operate as warranted due todefects or failures in any system or equipment selected by Manager (includingsystems or equipment of third party vendors and subcontractors selected byManager rather than by Sprint PCS) Manager will, at its own expense, make therepairs, replacements or upgrades necessary to correct the failure and providea Year 2000 Compliant Service Area Network. If the Service Area Network or any system used to support the ServiceArea Network fails to operate as warranted due to defects or failures in anysystems or equipment selected by Sprint PCS (including systems or equipment ofthird party vendors and subcontractors that Sprint PCS selects and requiresManager to use), Sprint PCS will, at its own expense, make

 

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the repairs, replacementsor upgrades necessary to correct the failure and provide a Year 2000 CompliantService Area Network.

 

“**Year 2000Compliance**” means the functions, calculations, and other computingprocesses of the Service Area Network (collectively “**Processes**”) that perform andotherwise process, date-arithmetic, display, print or pass date/time data in aconsistent manner, regardless of the date in time on which the Processes areactually performed or the dates used in such data or the nature of thedate/time data input, whether before, during or after January 1, 2000 andwhether or not the date/time data is affected by leap years.  To the extent any part of the Service AreaNetwork is intended to be used in combination with other software, hardware orfirmware, it will properly exchange date/time data with such software, hardwareor firmware.  The Service Area Networkwill accept and respond to two-digit year-date input, correcting orsupplementing as necessary, and store, print, display or pass date/time data ina manner that is unambiguous as to century. No date/time data will cause any part of the Service Area Network toperform an abnormally ending routine or function within the Processes orgenerate incorrect final values or invalid results.

 

**Services Agreement**

 

**31.****                               Non-exclusiveService [NEW]**.  Section 1.3 ofthe Services Agreement is amended and restated in its entirety to read asfollows:

 

**1.3****                               Non-Exclusive Services.**  Nothing contained in this agreement confersupon Manager an exclusive right to any of the Services.  Sprint Spectrum may contract with others toprovide expertise and services identical or similar to those to be madeavailable or provided to Manager under this agreement.

 

**32.****                               Changesto Article 2 [NEW]. **Article 2of the Services Agreement is amended and restated in its entirety to read asfollows:

 

**2.****                                      SERVICES**

 

**2.1****                               Services.**

 

***2.1.1******                     Services.***  Subject to the terms of this agreement, throughDecember 31, 2006, Manager will obtain the services set forth on Schedule2.1.1 attached to this agreement (“**Services**”)from Sprint Spectrum in accordance with this section 2.1, and Sprint Spectrumwill provide all or none of the Services.   For purposes of clarification, as of the Effective Date of Addendum VIIIthrough December 31, 2006, Sprint Spectrum is providing all of the Services toManager and Sprint Spectrum will not provide individual Services.

 

Thefees charged for the Services and the process for setting the fees charged forthe Services are set forth in section 3.2. Sprint Spectrum may designate additional Services upon at least 60 days’prior written notice to

 

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Manager by providing anamended Schedule 2.1.1 to Manager in accordance with the provisions ofsection 9.1.

 

WithoutManager’s prior written consent, neither Sprint Spectrum nor any of its RelatedParties will require Manager to pay for:

 

(A)                              anyof those additional CCPU Services or CPGA Services to the extent that they arethe same as or functionally equivalent to any service or benefit that Managercurrently receives from Sprint Spectrum or its Related Parties or Sprint PCS orits Related Parties but for which Manager does not pay a separate feeimmediately after the Effective Date, or

 

(B)                                anyother additional CCPU Services or CPGA Services through December 31, 2006.After that date the fee for those other additional Services will be included inthe fees based on Sprint PCS CCPU and Sprint PCS CPGA as set forth in section3.2.

 

***2.1.2******                     Discontinuanceof Services.***    If SprintSpectrum determines to no longer offer a Service, then Sprint Spectrum must

 

(i)                                     notifyManager in writing a reasonable time before discontinuing the Service, exceptSprint will notify Manager at least 9 months before Sprint plans to discontinuea significant Service (*e.g.,*billing, collection and customercare).

 

(ii)                                  discontinuethe Service to all Other Managers.

 

If Manager determineswithin 90 days after receipt of notice of discontinuance that it wants tocontinue to receive the Service, Sprint Spectrum will use commerciallyreasonable efforts to:

 

(a)                                  helpManager provide the Service itself or find another vendor to provide theService, and

 

(b)                                 facilitateManager’s transition to the new Service provider.

 

Thefees charged by Sprint Spectrum for the CCPU Services and CPGA Services will bereduced by any fees payable by Manager to a vendor or new Service provider inrespect of discontinued CCPU Services and CPGA Services, if (x) Sprint Spectrumprocures such CCPU Services or CPGA Services from a vendor or a new Serviceprovider and bills those items as Settled-Separately Manager Expenses (asdefined in subsection 3.2.5 of this agreement), or (y) Manager procures suchCCPU Services or CPGA Services from a vendor or a new provider of Services, or(z) Manager self-provisions the Service. No adjustment to the fees will be made if Sprint Spectrum discontinues aCCPU Service or CPGA Service and Sprint Spectrum does not provide the CCPUService or CPGA Service to end users.

 

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***2.1.3******                     Performanceof Services. ***Sprint Spectrummay select the method, location and means of providing the Services.  If Sprint Spectrum wishes to use Manager’sfacilities to provide the Services, Sprint Spectrum must obtain Manager’s priorwritten consent.

 

**2.2****                               ThirdParty Vendors.**  Some of the Servicesmight be provided by third party vendors under arrangements between SprintSpectrum and the third party vendors. In some instances, Manager may receive Services from a third partyvendor under the same terms and conditions that Sprint Spectrum receives thoseservices.  In other instances, Managermay receive Services under the terms and conditions set forth in an agreementbetween Manager and the third party vendor.

 

**33.****                               Changesto Article 3 [NEW]. **(a)                Section 19 ofAddendum II is deleted.  Article 3 ofthe Services Agreement is amended and restated in its entirety to read asfollows:

 

**3.****                                      FEESFOR SERVICES**

 

**3.1****                               Services. **Manager will pay Sprint Spectrum a feefor the Services provided by or on behalf of Sprint Spectrum now or in thefuture, subject to Section 2.1.1. Manager may not obtain these Services from other sources, except asprovided in this agreement.

 

If achange to Sprint PCS’ accounting classifications for the CCPU Services or CPGAServices materially changes the amount of the Sprint PCS CCPU or Sprint PCSCPGA relative to the amount immediately before the change, then the rates outlinedin section 3 of the Services Agreement will be adjusted to reflect the change.

 

If theaccounting classification change has the effect of moving a Service from a CCPUService or CPGA Service to a Settled-Separately Manager Expense, the fees forthe CCPU Services or CPGA Services, as applicable, charged by Sprint Spectrumwill be reduced by the fees payable by Manager for the new Settled-SeparatelyManager Expense.

 

**3.2****                               Feesfor Services.**

 

***3.2.1 Initial Pricing Period*.**  The fees Manager will pay Sprint Spectrum for the CCPU Servicesand CPGA Services provided to Manager by or on behalf of Sprint Spectrum eachmonth from the first day of the calendar month following the Effective Date ofAddendum VIII until December 31, 2006 (“**Initial Pricing Period**”), will be:

 

(a)  for the CCPU Services: $7.70 per subscribermultiplied by the Number of Customersin Manager’s Service Area, and

 

(b)  for the CPGA Services: an amount equal to:

 

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(i) the most recently publiclyreported Sprint PCS CPGA, multiplied by a percentage equal to the lesser of:

 

(A)  Manager’s current percentage of the mostrecently publicly reported Sprint PCS CPGA, and

 

(B)  6.3% of the most recently publicly reportedSprint PCS CPGA;

 

multiplied by

 

(ii) the Gross Customer Additions in Manager’sService Area.

 

Thefees will be paid as set forth in section 10 of the Management Agreement.

 

***3.2.2 Pricing Process****.* After the Initial Pricing Period, the fee for CCPU Services will becomea percentage of Sprint PCS CCPU and the fee for CPGA Services will be adjustedto a new percentage of Sprint PCS CPGA. The parties will reset the CCPU and CPGA percentages to be applied ineach pricing period after the Initial Pricing Period ends.  Each subsequent pricing period will lastthree years (if Manager continues to use Sprint Spectrum or a Related Party toprovide these Services) with, for example, the second pricing period beginningon January 1, 2007 and ending on December 31, 2009.

 

Theprocess for resetting the percentages is as follows:

 

(a)  Sprint Spectrum will give Manager proposedCCPU and CPGA percentages by****October 31 of the calendar year before thecalendar year in which the then current pricing period ends (e.g. if thepricing period ends on December 31, 2006 then the percentages have to bepresented by October 31, 2005).  Theproposed percentages will be based on the amount necessary to recover SprintPCS’ reasonable costs for providing the CCPU Services and CPGA Services toManager and the Other Managers. Manager’s representative and the Sprint PCS representative will begindiscussions regarding the proposed CCPU and CPGA percentages within 20 daysafter Manager receives the proposed CCPU and CPGA percentages from SprintSpectrum.

 

(b)  The fee Manager will pay Sprint Spectrum forthe CCPU Services provided to Manager by or on behalf of Sprint Spectrum eachmonth beginning on January 1, 2007 until December 31, 2008 under the pricingprocess described in this section 3.2.2 will not exceed $8.50 per subscribermultiplied by the Number of Customers in Manager’s Service Area.

 

(c)  If the parties do not agree on new CCPU andCPGA percentages within 30 days after the discussions begin, then Manager mayescalate the discussion to the Sprint PCS Chief Financial Officer or SprintSpectrum may escalate the discussion to Manager’s Chief Executive Officer or

 

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Chief Financial Officer.

 

(d)  If the parties cannot agree on the new CCPUand CPGA percentages through the escalation process within 20 days after theescalation process begins, then Manager may either

 

(i)                                     submitthe determination of the CCPU and CPGA percentages to binding arbitration undersection 14.2 of this agreement, excluding the escalation process set forth insection 14.1 and continue obtaining all of the CCPU Services and CPGA Servicesfrom Sprint Spectrum at the CCPU and CPGA percentages the arbitratordetermines, or

 

(ii)                                  procurefrom a vendor other than Sprint Spectrum or self-provision all of the Services.

 

ByDecember 1, 2006, the parties will agree on a service level agreement forcustomer care services and collection services (“**Customer-Related Services**”)that will apply to Customer-Related Services delivered by Sprint Spectrumstarting on January 1, 2007.  If theparties cannot agree on a service level agreement by December 1, 2006, eitherparty may submit a proposed service level agreement to binding arbitrationunder section 14.2 of the Management Agreement, excluding the escalationprocess set forth in section 14.1.  Ifthe arbitration concludes after January 1, 2007 the service level agreement, asagreed upon through the arbitration process, will be effective as of January 1,2007.   The agreement will set forth 5 metrics forCustomer-Related Services and will provide that Sprint Spectrum will usecommercially reasonable efforts to meet the industry averages for those metricsas in effect on December 1, 2006.  The 5metrics are:

 

(a)          Service Grade Ratedefined as percentage of calls answered in 60 seconds or less after thecustomer enters the call queue.

 

(b)         Average Hold Time definedas average time a customer waits to talk to a customer service representativeonce the customer enters the call queue.

 

(c)          Abandoned Call Ratedefined as the percentage of calls that disconnect prior to talking to acustomer service representative after the customer enters the call queue.

 

(d)         Net Write-Offs Ratedefined as monthly write-offs of accounts receivable, net of customer deposits,divided by monthly subscriber revenue.

 

(e)          Past-Due AccountsReceivable Aging Rates defined as percentage of accounts receivable greaterthan 60 days from due date.

 

Theservice level agreement will provide that Sprint Spectrum will give Manager aquarterly report on the above metrics. Beginning in 2008,

 

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Manager will have theright to opt out of Sprint Spectrum providing the Customer Related Services ifthe average of the metrics reflected in the four quarterly reports for theprior calendar year indicate that Sprint Spectrum is not in compliance with any2 of the 5 metrics.  To exercise theopt-out right, Manager must give its opt-out notice to Sprint Spectrum duringthe first quarter of any calendar year that Manager has an opt-out right.   Upon receipt of an opt-out notice, Managerand Sprint Spectrum will use commercially reasonable efforts to transition theCustomer-Related Services to Manager or a third party vendor within 9 monthsafter the opt-out notice date.  Upon theparties’ completion of the transition, the parties will agree to an adjustmentto the CCPU Service Fee being charged by Sprint Spectrum to Manager.  If the parties cannot agree to anadjustment, Manager has the right to submit the determination to bindingarbitration under section 14.2 of the Management Agreement, excluding theescalation process set forth in section 14.1, and continue obtaining all theCPGA Services and remaining CCPU services from Sprint Spectrum.  Manager will reimburse Sprint Spectrum fortransition and continuing operation costs in accordance with Section 3.2.4.

 

Manager’sopt-out right described above is its sole remedy if Sprint Spectrum is not incompliance with the metrics; Sprint Spectrum’s non-compliance with the metricsdoes not constitute a breach of this agreement or any other agreement betweenthe parties.

 

Managerhas the right to propose to Sprint Spectrum that Manager self-provision orprocure from a vendor some, but not all, of the Services.  Sprint Spectrum will discuss the proposalwith Manager, but Manager can only self-provision or procure from a vendor someof the Services if Sprint Spectrum agrees.

 

Managerwill begin paying Sprint Spectrum under the CCPU and CPGA percentages thatSprint Spectrum presents for discussion at the beginning of the new pricingperiod until the date on which the parties agree or until the arbitratordetermines the new CCPU and CPGA percentages, whichever occurs first.  Within 30 days after the percentages aredetermined (either by agreement or by arbitration), Sprint PCS will recalculatethe fees from the beginning of the new pricing period and give notice toManager of what the fees are and the amount of any adjusting paymentsrequired.  If Sprint PCS owes Manager arefund of fees already paid, Sprint PCS may pay the amount to Manager or SprintPCS, in its sole discretion, may credit the amount of the refund against anyamounts Manager then owes to Sprint PCS. If Sprint PCS chooses to pay the refund, it will make the payment at thetime it sends the notice to Manager; If Sprint PCS chooses to credit therefund, it will in the notice indicate the amounts owing to which the creditwill be applied.  If Manager owes SprintPCS additional fees Manager will pay those fees to Sprint PCS within 10 daysafter receipt of the notice.

 

***3.2.3 Sprint Spectrum First Right of Refusal.***  Manager must give Sprint Spectrum writtennotice of Manager’s decision to procure the Services

 

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from a third party vendorthe Services at least 120 days before the end of the Initial Pricing Period orany subsequent three-year pricing period and provide the third party vendorterms to Sprint Spectrum.  SprintSpectrum will have 30 days from the date it receives the third party vendor’sterms to decide if it will provide those Services to Manager under those terms.

 

Managermust agree to receive the Services from Sprint Spectrum if Sprint Spectrumgives notice to Manager that it will provide the Services to Manager on thethird party vendor terms.  If SprintSpectrum does not exercise its first right of refusal, Manager must sign theagreement with the third party vendor on the same terms and conditions aspresented to Sprint Spectrum within 10 Business Days after Sprint Spectrumnotifies Manager of its decision not to exercise the first right of refusal orthe expiration of the 30-day period, whichever occurs first.  The procedure set forth in this section3.2.3 will begin again if Manager does not sign the agreement with the thirdparty vendor as required in the preceding sentence.

 

***3.2.4******                     Transitionand Continuing Operating Costs.*** Sprint Spectrum will cooperate with Manager and work diligently and ingood faith to implement the transition to another service provider (includingManager, if applicable), in a reasonably efficient and expeditious manner.

 

Managerwill pay for all reasonable out-of-pocket costs that Sprint Spectrum and itsRelated Parties actually incur to (i) transfer any Service(s) provided toManager to a third party vendor or to enable Manager to self-provide anyService(s), and (ii) operate and maintain systems, processes, licenses andequipment to support those Services. Sprint Spectrum will bill Manager monthly for these costs.

 

***3.2.5******                     Settled-SeparatelyManager Expenses.***  Manager willpay to or reimburse Sprint Spectrum for any amounts that Sprint Spectrum or itsRelated Parties pays for Settled-Separately Manager Expenses.  **“Settled-Separately****Manager Expenses”** means thoseitems the parties choose to settle separately between themselves (e.g.accessory margins, reciprocal retail store cost recovery) that are listed insections C and D of Schedule 2.1.1.

 

SprintSpectrum will give Manager at least 60 days’ prior written notice by providingan amended Schedule 2.1.1 to Manager in accordance with the provisionsof section 9.1 of any additional Services added to sections C and D of Schedule2.1.1, but no additional service may be added to the extent it is the sameas, or functionally equivalent to, either:

 

(a)                                  anyservice that Sprint Spectrum or any of its Related Parties currently providesto Manager as a CCPU Service or a CPGA Service (unless the fees payable byManager to Sprint Spectrum hereunder are correspondingly reduced) or

 

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(b)                                 anyservice or benefit that Manager currently receives from Sprint Spectrum or itsRelated Parties but for which Manager does not pay a separate fee before theEffective Date.

 

Foreach Settled-Separately Manager Expense, Sprint Spectrum will providesufficient detail to enable Manager to determine how the expense wascalculated, including the unit of measurement (*e.g.,* per subscriber permonth or per call) and the record of the occurrences generating the expense (*e.g.,*the number of calls attributable to the expense).  If an expense is not reasonably subject to occurrence leveldetail, Sprint Spectrum will provide reasonable detail on the process used tocalculate the fee and the process must be reasonable.  A detail or process is reasonable if it is substantially in theform as is customarily used in the wireless industry.  The Settled-Separately Manager Expenses will be paid as set forthin section 10 of the Management Agreement. Sprint Spectrum and its Related Parties may arrange for Manager to payany of the Settled-Separately Manager Expenses directly to the vendor aftergiving Manager reasonable notice.

 

UnlessManager specifically agrees otherwise, any Settled-Separately Manager Expensethat Sprint Spectrum or any of its Related Parties is entitled to charge orpass through to Manager under this agreement or the Management Agreement willreflect solely out-of-pocket costs and expenses that Sprint Spectrum or itsRelated Parties actually incur, will be usage-based or directly related torevenue-generating products and services, and will not include any allocationof Sprint PCS’ or its Related Parties’ internal costs or expenses (including,but not limited to, allocations of general and administrative expenses or allocationsof employee compensation or related expenses). For clarity, Sprint Spectrum’s or its Related Parties’ out-of-pocketcosts for handset and accessory inventory consist of actual inventory invoicecosts less any volume incentive rebates and price protection credits thatSprint Spectrum or its Related Parties receive from a vendor.

 

**3.3****                               LatePayments. **Any payment due underthis section 3 that Manager fails to pay to Sprint Spectrum in accordance withthis agreement will bear interest at the Default Rate beginning (and including)the 6th day after the due date stated on the invoice until (and including) thedate on which the payment is made.

 

**3.4****                               Taxes.**  Manager will pay or reimburse SprintSpectrum for any sales, use, gross receipts or similar tax, administrative fee,telecommunications fee or surcharge for taxes or fees that a governmentalauthority levies on the fees and charges that Manager pays to Sprint Spectrumor a Related Party.

 

**34.****                               Audit[NEW]. **Section 5.1.2 of theServices Agreement is amended and restated in its entirety to read as follows:

 

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***5.1.2******                     Audits.***  On reasonable advance notice by one party,the other party must provide its independent or internal auditors access to itsappropriate financial and operating records, including, without limitation,vendor and distribution agreements, for purposes of auditing the amount of fees(including the appropriateness of items included in Settled-Separately ManagerExpenses), costs, expenses (including operating metrics referred to in thisagreement and the Services Agreement relating to or used in the determinationof Inter Service Area Fees, Reseller Customer Fees, CCPU Services or CPGAServices) or other charges payable in connection with the Service Area for theperiod audited.  The party thatrequested the audit may decide if the audit is conducted by the other party’sindependent or internal auditors. Manager and Sprint Spectrum may each request no more than one audit peryear.

 

(a)                                  Ifthe audit shows that Sprint Spectrum was underpaid then, unless the amount iscontested, Manager will pay to Sprint Spectrum the amount of the underpaymentwithin 10 Business Days after Sprint Spectrum gives Manager written notice ofthe underpayment determination.

 

(b)                                 Ifthe audit determines that Sprint Spectrum was overpaid then, unless the amountis contested, Sprint Spectrum will pay to Manager the amount of the overpaymentwithin 10 Business Days after Manager gives Sprint Spectrum written notice ofthe overpayment determination.

 

Theauditing party will pay all costs and expenses related to the audit unless theamount owed to the audited party is reduced by more than 10% or the amount owedby the audited party is increased by more than 10%, in which case the auditedparty will pay the costs and expenses related to the audit.

 

Ifeither party disputes the auditor’s conclusion then the dispute will besubmitted to binding arbitration in accordance with section 14.2 of theManagement Agreement, excluding the escalation process set forth in section14.1 of the Management Agreement.

 

SprintPCS will provide a Type II Report to Manager annually.  If Manager, on the advice of its independentauditors or its legal counsel, determines that a statute, regulation, rule, judicialdecision or interpretation, or audit or accounting rule, policy or literaturepublished by the accounting or auditing profession or other authoritative rulemaking body (such as the Securities and Exchange Commission, the Public CompanyAccounting Oversight Board or the Financial Accounting Standards Board)requires additional assurances beyond SAS 70, then Sprint Spectrum willcooperate with Manager to provide the additional assurances.  Sprint Spectrum’s independent auditors willprepare any Type II Report or Manager Management Report provided under thissection 5.1.2 and will provide an opinion on the controls placed in operationand tests of operating effectiveness of those controls in effect at Sprint PCSover Manager Management Processes.

 

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**35.****                               Notices[NEW and Addm IV, §5].**  Section 9.1of the Services Agreement is amended and restated in its entirety to read asfollows:

 

**9.1****                           ****Notices.** Any notice, payment, invoice, demand or communication required orpermitted to be given by any provision of this agreement must be in writing andmailed (certified or registered mail, postage prepaid, return receiptrequested), sent by hand or overnight courier, charges prepaid or sent byfacsimile or email (in either instance with acknowledgement or read receiptreceived), and addressed as described in section 17.1(b) of the ManagementAgreement, or to any other address or number as the person or entity may fromtime to time specify by written notice to the other parties.

 

The subject line of any email notice thatpurports to add any additional service to Schedule 2.1.1 must read“Additional Service to Schedule 2.1.1”. The new Schedule 2.1.1 must also be attached to the email, andnotice will also be provided to those individuals listed for notices forManager regarding Program Requirement Changes set forth in section 17.1(b) ofthe Management Agreement.

 

Any notice, demand or communicationintended to be notice of a breach of an agreement or notice of an Event ofTermination must clearly indicate that intent, state the section(s) of theagreements allegedly breached, and in addition to any other form of notice itmust be mailed or sent by overnight courier in the manner described in thefirst paragraph of this section 9.1.

 

Managerwill promptly give Sprint PCS a copy of any notice Manager receives from theAdministrative Agent or any Lender, and a copy of any notice Manager gives tothe Administrative Agent or any Lender. Sprint PCS will promptly give Manager a copy of any notice that SprintPCS receives from the Administrative Agent or any Lender and a copy of anynotice that Sprint PCS gives to the Administrative Agent or any Lender.

 

All notices and other communicationsgiven to a party in accordance with the provisions of this agreement will bedeemed to have been given when received.

 

**36.****                               EntireAgreement; Amendments [NEW].** Section 9.6 of the Services Agreementis amended and restated in its entirety to read as follows:

 

**9.6****                               EntireAgreement; Amendments.**  The provisions of this agreement andthe Management Agreement including the exhibits to those agreements set forththe entire agreement and understanding between the parties as to the subjectmatter of this agreement and supersede all prior agreements, oral or written,and other communications between the parties relating to the subject matter ofthis agreement.  Except for SprintSpectrum’s right to add additional Services to Schedule 2.1.1 subject tothe provisions of section 2.1.1 and section 3.2.5, this agreement may bemodified or amended only by a written amendment signed by the persons orentities authorized to bind each party.

 

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**37.****                               ForceMajeure [NEW]. **The secondparagraph of section 9.8 of the Services Agreement is amended and restated inits entirety to read as follows:

 

Neither Manager nor Sprint Spectrum, as the case may be, is in breachof any covenant in this agreement and no Event of Termination will occur as aresult of the failure of such party to comply with any covenant, if the party’snon-compliance with the covenant results primarily from:

 

(i)                                     anyFCC order or any other injunction that any governmental authority issues thatimpedes the party’s ability to comply with the covenant,

 

(ii)                                  thefailure of any governmental authority to grant any consent, approval, waiver orauthorization or any delay on the part of any governmental authority ingranting any consent, approval, waiver or authorization,

 

(iii)                               thefailure of any vendor to deliver in a timely manner any equipment or service,or

 

(iv)                              anyact of God, act of war or insurrection, riot, fire, accident, explosion, laborunrest, strike, civil unrest, work stoppage, condemnation or any similar causeor event not reasonably within the control of the party.

 

**Trademark License Agreements**

 

**38.****                               Notices[NEW and Addm IV, §5].**  Section 15.1of each of the Trademark License Agreements is amended and restated in itsentirety to read as follows:

 

Section 15.1.                             Notices.  Anynotice, payment, invoice, demand or communication required or permitted to begiven by any provision of this agreement must be in writing and mailed(certified or registered mail, postage prepaid, return receipt requested), sentby hand or overnight courier, or sent by facsimile (with acknowledgmentreceived), charges prepaid and addressed as described in section 17.1(b) of theManagement Agreement, or to any other address or number as the person or entitymay from time to time specify by written notice to the other parties.

 

Any notice, demand or communicationintended to be notice of a breach of an agreement or notice of an Event ofTermination must clearly indicate that intent, state the section(s) of theagreements allegedly breached, and be mailed or sent by overnight courier inthe manner described in the preceding paragraph.

 

Licenseewill promptly give Licensor a copy of any notice Licensee receives from anyAdministrative Agent or any Lender, and a copy of any notice Licensee gives toany Administrative Agent or any Lender. Licensor will promptly give Licensee a copy of any notice that Licensorreceives from the

 

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Administrative Agent orany Lender and a copy of any notice that Licensor gives to the AdministrativeAgent or any Lender.

 

All notices and other communicationsgiven to a party in accordance with the provisions of this agreement will bedeemed to have been given when received.

 

**Schedule of Definitions**

 

**39.****                               DeletedDefinitions [Addm I, §2 and NEW].** The definitions of “New Area(s)” and “Available Services” are deleted.

 

**40.****                               Additional,Amended or Supplemented Definitions [NEW].**  The following are new or amended definitions, unless otherwiseindicated.

 

**“AllocableSoftware Fee”** has the meaning set forth in section 1.3.4(e)of the Management Agreement.

 

**“AllocatedWrite-offs”**has the meaning set forth in section10.3.4 of the Management Agreement.

 

**“AmountBilled (Net of Customer Credits)”**has the meaning setforth in section 10.3.3 of the Management Agreement.

 

**“AwayNetwork”** means:

 

(i)                                     any portion of theSprint PCS Network other than Manager’s Service Area Network, in the case ofCustomers with an NPA-NXX assigned to the Service Area (or any other suchdesignation in accordance with section 17.17 of the Management Agreement), and

 

(ii)                                  Manager’s ServiceArea Network, in the case of Customers with an NPA-NXX assigned to an areaoutside the Service Area (or any other such designation in accordance withsection 17.17 of the Management Agreement).

 

**“BilledComponent(s)”**has the meaning set forth in section10.3.2 of the Management Agreement.

 

**“BilledMonth”**has the meaning set forth in section 10.2.1 ofthe Management Agreement.

 

**“BilledRevenue”**has the meaning set forth in section 10.2.1of the Management Agreement.

 

**“Capital ProgramRequirement Change”** has the meaning set forth insection 9.3.1(b) of the Management Agreement.

 

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**“CCPUServices”**means those Services listed in section A ofSchedule 2.1.1 to the Services Agreement.

 

**“ChiefFinancial Officer of Sprint PCS”, “Sprint PCS Chief Financial Officer”**andother references to the Chief Financial Officer of Sprint PCS mean the SeniorVice President – Finance of Sprint Corporation designated to serve as the chieffinancial officer of Sprint PCS or if none, the individual serving in thatcapacity.

 

**“CPGAServices”**means those Services listed in section B ofSchedule 2.1.1 to the Services Agreement.

 

**“CSA”**has the meaning set forth in section 10.2.1 of theManagement Agreement.

 

**“Customer”**means any customer, except Reseller Customers or customers of third parties forwhich Manager provides solely switching services, who purchases Sprint PCSProducts and Services, regardless of where their NPA-NXX is assigned.

 

**“CustomerCredits”**has the meaning set forth in section 10.2.1of the Management Agreement.

 

**“CustomerEquipment Charges”**has the meaning set forth insection 10.3.2.5 of the Management Agreement.

 

**“CustomerEquipment Credits”** has the meaning set forth insection 10.3.2.2 of the Management Agreement.

 

**“Customer-RelatedServices”**has the meaning set forth in section 3.2.2of the Services Agreement.

 

**“CustomerTaxes”** means the amounts that Sprint PCS bills toManager Accounts for taxes, including, without limitation, federal, state, andlocal sales, use, gross and excise tax.

 

**“EffectiveDate”**has the meaning set forth in the preamble ofthis Addendum.

 

**“EnterpriseValue”**means the combined book value of an entity’soutstanding debt and preferred stock less cash plus the fair market value ofeach class of its publicly-traded equity other than any publicly-tradedpreferred stock.  For the purposes ofthis definition, the fair market value of a class of an entity’spublicly-traded equity (other than publicly-traded preferred stock) is equal tothe product of:

 

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(i)                              thenumber of issued and outstanding shares of the class of publicly-traded equityas of the date of determination, times

 

(ii)                           theapplicable average closing price (or average closing bid, if traded on theover-the-counter market) per share of the class of publicly-traded equity overthe 21 consecutive trading days immediately preceding the date ofdetermination.

 

**“E911Phase I Surcharges”**means all costs related to Phase IE911 functionality.

 

**“E911Phase II Surcharges”**has the meaning set forth insection 10.3.2.6 of the Management Agreement.

 

**“ETC”**has the meaning set forth in section 10.6.1 of the Management Agreement.

 

**“FeeBased on Billed Revenue”**has the meaning set forth insection 10.2.1 of the Management Agreement.

 

**“GrossCustomer Additions in Manager’s Service Area”** meansthe average number of Customers activated (without taking into considerationthe number of Customers lost) during the previous month with an NPA-NXXassigned to the Service Area as reported in Sprint PCS’ most recent monthly KPIreport.

 

**“Initial3G Data Fee Period”**has the meaning set forth insection 10.4.1.3(a) of the Management Agreement.

 

**“InitialPricing Period”**has the meaning set forth in section3.2.1 of the Services Agreement.

 

**“InterService Area Fee”**has the meaning set forth in section4.3 of the Management Agreement.

 

**“InvestmentBanker”**has the meaning set forth in section 9.3.2 ofthe Management Agreement.

 

**“ManagerAccounts”**has the meaning set forth in section 10.2.1of the Management Agreement.

 

**“ManagerManagement Process”** has the meaning set forth insection 12.1.2 of the Management Agreement.

 

**“ManagerManagement Report”**has the meaning set forth insection 12.1.2 of the Management Agreement.

 

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**“NetBilled Revenue”**has the meaning set forth in section10.2.1 of the Management Agreement.

 

**“NetSoftware Cost”**means the amount paid by Sprint PCS to the vendor directly associated with theSoftware used by Manager in the Service Area for which Manager is not obligatedto pay the Software vendor directly, net of any discounts or rebates andexcluding any mark-up by Sprint PCS for administrative or other fees, and islimited to that proportionate amount attributable to Manager.

 

“**New Coverage”** means the build-out inthe Service Area that is in addition to the build-out required under thethen-existing Build-out Plan, which build-out Sprint PCS or Manager decidesshould be built-out.

 

**“NPA-NXX”**means NPA-NXX or an equivalent identifier, such as anetwork access identifier (NAI).

 

**“Non-Capital ProgramRequirement Change”** has the meaning set forth insection 9.3.1(a) of the Management Agreement.

 

**“Numberof Customers in Manager’s Service Area”** means theaverage number of Customers with NPA-NXXs assigned to the Service Area reportedin Sprint PCS’ most recent monthly KPI report.

 

**“OutboundRoaming Fees”** means the amounts that Sprint PCS or itsRelated Parties bills to Manager Accounts for calls placed on a non-Sprint PCSNetwork.

 

**“OverallChanges”** has the meaning set forth in section 1.10(a)of the Management Agreement.

 

**“ProgramRequirement Change”** means a change in a ProgramRequirement issued by Sprint PCS in accordance with section 9.2 of theManagement Agreement.

 

**“QwestReseller 3G Data Agreement”**has the meaning set forth in section 10.4.1.3(a) of the ManagementAgreement.

 

**“ResellerCustomer”** means customers of companies ororganizations with a Private Label PCS Services or similar resale agreementwith Sprint PCS or Manager.

 

**“ResellerCustomer Fees”** has the meaning set forth in section10.4.1.1 of the Management Agreement.

 

**“SCCLP”**has the meaning set forth in section 3.4.2(b) of theManagement Agreement.

 

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**“Services”** has the meaning set forth in section 2.1.1of the Services Agreement.

 

**“SelectedServices”**means Services.

 

**“ServiceArea Network”** means the network that is directlyrequired for the provision of telecommunications services to Customers and ismanaged by Manager under the Management Agreement in the Service Area under theLicense.

 

**“Settled-Separately****ManagerExpenses”** has the meaning set forth in section 3.2.5 of the ServicesAgreement.

 

**“Software”**means only that software and software features currently existing or developedin the future that are used in connection with telecommunications equipmentowned or leased by Manager in Manager’s provisioning of wireless services inthe Service Area and includes, without limitation, software maintenance,updates, improvements, upgrades and modifications.  “Software” expressly excludes:

 

(i)                        software“rights to use” licenses to the extent paid to the licensor directly byManager, and

 

(ii)                     softwareoperating Sprint PCS’ national platforms, billing system platforms, customerservice platforms and like applications.

 

“**Software Fees**” means costs associated(including applicable license fees) with procuring software, softwaremaintenance, software upgrades and other software costs needed to provideuniform and consistent operation of the wireless systems within the Sprint PCSNetwork.

 

**“SprintPCS”**means any or all of the following Related Partieswho are License holders or signatories to the Management Agreement: SprintSpectrum L.P., a Delaware limited partnership, WirelessCo, L.P., a Delawarelimited partnership, SprintCom, Inc., a Kansas corporation, PhillieCo PartnersI, L.P., a Delaware limited partnership, PhillieCo, L.P., a Delaware limitedpartnership, Sprint Telephony PCS, L.P., a Delaware limited partnership, SprintPCS License, L.L.C., a Delaware limited liability company, American PCSCommunications, LLC, a Delaware limited liability company, and APC PCS, LLC, aDelaware limited liability company.  Anyreference in the Management Agreement or Services Agreement to CoxCommunications PCS, L.P., a Delaware limited partnership, or Cox PCS License,L.L.C., a Delaware limited liability company, is changed to Sprint TelephonyPCS, L.P., a Delaware limited partnership, or Sprint PCS License, L.L.C., aDelaware limited liability company, respectively, to reflect name changes filedwith the Delaware Secretary of State in 2002.

 

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**“SprintPCS ARPU”** means the average revenue per user publiclyannounced by Sprint PCS or its Related Parties for the most recent calendaryear.  Sprint PCS ARPU is generallycalculated by dividing wireless service revenues by average wirelesssubscribers.

 

**“SprintPCS CCPU”** means the cash cost per user publiclyannounced by Sprint PCS or its Related Parties for the most recentquarter.  Sprint PCS CCPU is generallycalculated by dividing costs of wireless service revenues, service delivery andother general and administrative costs by average wireless subscribers.

 

**“SprintPCS CPGA”** means the cost per gross addition publiclyannounced by Sprint PCS or its Related Parties for the most recentquarter.  Sprint PCS CPGA is calculatedby dividing the aggregate costs of acquiring new wireless subscribers, includingequipment subsidies, marketing costs and selling expenses, by gross additionalsubscribers.

 

“**Sprint PCSResale Program Requirements**” **[Addm I, §5]** means the standardsestablished by Sprint PCS, in accordance with section 3.5.2 of the ManagementAgreement, as amended from time to time, for the resale of Sprint PCS Productsand Services by third parties.

 

**“SprintPCS Retail Yield for Voice and 2G Data Usage”** meansthe quotient calculated by dividing (a) Sprint PCS ARPU less the 3G datacomponent in the Sprint PCS ARPU by (b) the reported minutes of use persubscriber for the calendar year for which the Sprint PCS ARPU was calculated.

 

**“SprintPCS Retail Yield for 3G Data Usage”** means the quotientcalculated by dividing (a) the 3G data component in the Sprint PCS ARPU by (b)the kilobytes of use for 3G data usage per subscriber for the calendar year forwhich the Sprint PCS ARPU was calculated.

 

**“SubsidyFunds”**has the meaning set forth in section 10.6.1 ofthe Management Agreement.

 

**“3M-popsManager”**means any Other Manager whose ultimate parententity (as defined by the Hart-Scott-Rodino Antitrust Improvements Act of 1976)controls entities with 3 million or more covered pops.

 

**“TransitionDate”**has the meaning set forth in section 10.12.3 ofthe Management Agreement.

 

**“TypeII Report”**has the meaning set forth in section 12.1.2of the Management Agreement.

 

**“UltimateParent”**has the meaning set forth in theHart-Scott-Rodino Antitrust Improvements Act of 1976.

 

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**“USFCharges”**has the meaning set forth in section 10.3.2.7of the Management Agreement.

 

**“VendorSoftware”** has the meaning set forth in section1.3.4(b) of the Management Agreement.

 

**“WirelessMobility Communications Network”** means a radio communicationssystem operating in the 1900 MHz spectrum range under the rules designated asSubpart E of Part 24 of the FCC’s rules.

 

**“WLNPSurcharges”** has the meaning set forth in section10.2.4 of the Management Agreement.

 

**“Write-offs”**has the meaning set forth in section 10.3.1 of theManagement Agreement.

 

**“Year2000 Compliance”**has the meaning set forth in section17.29 of the Management Agreement.

 

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**B.****                                    Cross-referencesto Other Paragraphs in Previous Addenda.**

 

Listed below are thoseparagraphs in the previous addenda that are interpretations or applications ofthe Management Agreement, the Services Agreement, the Trademark LicenseAgreements or the Schedule of Definitions and that are not listed above.  These serve as cross-references tofacilitate finding provisions in the previous addenda.  The number shown at the beginning of eachitem is the paragraph reference in the designated Addendum.

 

Addendum I

 

1.                                       Seamlessness.

4.                                       Useof Private Label

6.                                       TimePeriods for Right of First Refusal

 

Addendum II

 

1.                                       Expansionof Service Area

3.                                       BuildOut Plan

4.                                       Purchaseof Assets

5.                                       Subscribers

6.                                       SprintSpectrum Employees

7.                                       FixedWireless Local Loop

8.                                       BuildOut of Spokane MTA

9.                                       ExpediteFees

18.                                 Designationof Selected Services

20.                                 DeletedSections

21.                                 Useof Loan Proceeds

22.                                 Notices

23.                                 NoDefault Under Management Agreement

 

Addendum III

 

1.                                       Backhauland Interconnection

2.                                       Designationof Selected Services

 

Addendum IV

 

1.                                       Confirmationof Restructuring and Assumption of Sprint Agreements

2.                                       RevisedFinancing Plan

3.                                       Build-outPlan

4.                                       Useof Loan Proceeds

6.                                       NoDefault Under Credit Agreement or Management Agreement

7.                                       Defenseof Employment-Related Charges

 

Addendum V

 

2.                                       CustomerService Program Requirements

 

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3.                                       Counterparts

 

Addendum VI

 

1.                                       TypeII Conversion Schedule and Costs

2.                                       SpectrumTransition

3.                                       Discontinuationof Unlimited Plans

4.                                       Completionof VIA Service Area Build-out Requirement

5.                                       NoDeclaration of Breach

6.                                       RevisedFinancing Plan

7.                                       RevisedBuild-Out Plan

9.                                       MicrowaveRelocation

10.                                 Noticeof Merger Termination

11.                                 Reaffirmationof Sprint Agreements

12.                                 Consentand Agreement

13.                                 Counterparts

 

Addendum VII

 

1.                                       Deletionof BTAs from Service Area and New Service Area Exhibit

 

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**C.**                                    **OtherProvisions.**

 

**1.**                                      **Manager andSprint PCS’ Representations.** Manager and Sprint PCS each represents and warrants that its respectiveexecution, delivery and performance of its obligations described in thisAddendum have been duly authorized by proper action of its governing body anddo not and will not violate any material agreements to which it is aparty.  Each of Manager and Sprint PCSalso represents and warrants that there are no legal or other claims, actions,counterclaims, proceedings or suits, at law or in arbitration or equity,pending or, to its knowledge, threatened against it, its Related Parties,officers or directors that question or may affect the validity of thisAddendum, the execution and performance of the transactions contemplated bythis Addendum or that party’s right or obligation to consummate thetransactions contemplated by this Addendum.

 

**2.****                                      Reaffirmationof Sprint Agreements. **Each of theundersigned reaffirms in their entirety the Management Agreement, the ServicesAgreement and the Trademark License Agreements, together with their respectiverights and obligations under those agreements.

 

**3.****                                      Counterparts.**  This Addendum may be executed in one or morecounterparts, including facsimile counterparts, and each executed counterpartwill have the same force and effect as an original instrument as if the partiesto the aggregate counterparts had signed the same instrument.

 

 

**[THE REMAINDER OF THIS PAGE IS LEFTBLANK INTENTIONALLY.]**

 

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The parties have causedthis Addendum VIII to be executed as of the date first above written.

 
|   | SPRINT SPECTRUM L.P.                |
|--------|-------------------------------------|
|   |                                |
|   |                                |
|   | By:                                 |   |   |
|   |                                | Steven M. Nielsen |
|   |                                | Senior Vice President –  Finance PCS |
|   |                                |   |
|   | WIRELESSCO, L.P.                    |
|   |                                |
|   |                                |   |
|   | By:                                 |   |   |
|   |                                | Steven M. Nielsen |
|   |                                | Senior Vice President –  Finance PCS |
|   |                                |   |
|   | SPRINT TELEPHONY PCS,  L.P.         |
|   |                                |
|   |                                |   |
|   | By:                                 |   |   |
|   |                                | Steven M. Nielsen |
|   |                                | Senior Vice President –  Finance PCS |
|   |                                |   |
|   | SPRINT PCS LICENSE,  L.L.C.         |
|   |                                |
|   |                                |   |
|   | By:                                 |   |   |
|   |                                | Steven M. Nielsen |
|   |                                | Senior Vice President –  Finance PCS |
|   |                                |   |
|   | SPRINT COMMUNICATIONS  COMPANY L.P. |
|   |                                |
|   |                                |   |
|   | By:                                 |   |   |
|   |                                | Thomas E. Murphy |
|   |                                | Senior Vice President – Communications  and Brand Management |
|   |                                |   |
|   | UBIQUITEL OPERATING  COMPANY        |
|   |                                |
|   |                                |   |
|   | By:                                 |   |   |
|   |                                | James J. Volk |
|   |                                | Chief Financial Officer |

 

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**EXHIBIT10.3**

 

**100% Affiliate Retained Amounts**

 

Roaming Revenue

International Roaming Credits

Affiliate Equip Sale On Acct

 

**100% Sprint PCS Retained Amounts**

 

Accrued Sales Taxes

Accrued Federal Excise Taxes

Collected Insurance

 

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**Schedule2.1.1**

 

**-SECTION A-**

 

**Presently Offered CCPU Services -***ActivityApplied as % to Sprint PCS reported CCPU*

 

3G Fees

A/PBackhaul/Facility Disputes

AffiliateUtilities

ATMSoft Hand Off

BankFees

BIPerformance Services – Initiation

BIPerformance Services – Maintenance

BidCost

Billing

CheckFree

ClarifyMaintenance Fee

COUsage

Collection Agency Fees

Conferences

Costs associated withrollout of new products and services

Credit CardProcessing/Fees

Customer Care

Customer Solutions –Mature Life

Directory Assistance

DS3

E –Commerce PT

EnhancedVoicemail

Entrance FacilityExpenses (Includes Terminating/Trunking Charge)

FordRevenue

FordTelematics

GiftCard Payable

GiftCard Receivable

Hal Riney Ad Kit

HighSpeed Remote Access Server

ICS Clearing House Costs(Includes Illuminet, Roaming Clearing House, and TSI)

IMTCharges

Interconnection

Inter-Machine Trunk

IT (Includes E-Commerce)

LDVerification

LIDB / CNAM

LocalLoop, COC, ACF, IXC, etc. (National Platform Expense – Local Loop Cost, CentralOffice Connection (COC), access Coordination Fee (ACF), Co-Location Charges,and Inter Exchange Carrier (IXC) Charges)

Lockbox261

MCIDisconnect Adjusted

NationalPlatform – COA

NationalPlatform Disputes

National Platform (2G)(Includes Voice Activated Dialing)

 

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**National Platform Component**

**FCAPS (Fault, Configuration, Accounting, Performance,Security)**

Capital Projects

Expense Projects

Circuit Expense

CLOH

Labor

Forecasts

 

**IN (Intelligent Network)**

Capital Expense

Expense Projects

Circuit Expense

CLOH

Labor

Forecasts

** **

**OSSN**

Capital Expense

Expense Projects

Circuit Expense

CLOH

Labor

Forecasts

 

**3G**

Capital Projects

Expense Projects

Circuit Expense

CLOH

Labor

Forecasts

 

**Operator Service**

Vendor Fee

 

**Wireless Web**

Capital Projects

Expense Projects

Circuit Expense

CLOH

Labor

Forecasts

 

**Messaging**

Capital Projects

Expense Projects

Circuit Expense

CLOH

Labor

 

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Forecasts

 

**VAD**

Capital Projects

Expense Projects

Circuit Expense

CLOH

Labor

Forecasts

 

**Voice Mail**

Capital

Expense Projects

Circuit Expense

CLOH 

Labor

Forecasts

** **

**Software Maintenance**

Openwave

Hewlett Packard

Comverse

Marconi

Lucent

Commworks

Four Corners

Other Vendors (39)

 

NorthwestFrequent Flyer

PremiumVision Services

PreNet

Pricing

ProText Messaging Plan

Ringers & More(Includes SBF and PT fees)

Roadside Rescue

SprintSynch Services

Telecheck Charge

Telematics

TextMessaging Plan

TSC Usage

Type 1 Affiliate LongDistance

VoiceCommand Web

Wireless Web

 

**-SECTION B-**

 

**Presently Offered CPGA Services -***ActivityApplied as % to Sprint PCS reported CPGA*

 

500Minute Promotion Credit

 

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Activations – CustomerSolutions

Activations – E-Commerce(Includes On Line (Web) Activations)

Activations – Telesales

Credit Check Fee

Customer Solutions –Early Life

DemoPhones

EarthLink

HalRiney Service

Handset Logistics

HandsetObsolesence Fee and Carrying Costs

Local/IndirectCommission

MarketingCollateral Destruction

NAM/CAM

OneSprint Telesales

PGAExpenses

PLSCommission

SmartWorksPrinting

 

**-SECTION C-**

 

**Presently Offered CCPU Services -***ActivitySettled Separately*

 

Affiliate ProjectAuthorizations

Long Distance

E911 Phase I Revenue

Microwave Clearing

Roaming

Software Fees

Sprint Local TelephoneUsage

Taxes Paid on Behalf ofType III Affiliates

Tower Lease

Travel Revenue andExpense

Upgrade Commission – 2Step Channel

Vendor Usage-BasedCharges on New Products

Wholesale Revenue andExpense

 

**-SECTION D-**

 

**Presently Offered CPGA Services -***ActivitySettled Separately*

 

3GDevice Logistics Fee

3rdParty Spiffs

AccessoryMargin

Commissions– National 3rd Party

Commissions– Other 3rd Party

CoopAdvertising – Local 3rd Party

CoopAdvertising – National 3rd Party

Handsetreturns

Handsetsubsidies

Handsets

 

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MarketingCollateral (excluding destruction)

MeetingCompetition Fund

RadioShackPromos (Includes RadioShack Golden Quarter, Jumpstart, Relaunch, Sprint toVegas, and Break the Bank)

RebateAdministrative Expense

Rebates

ReciprocalRetail Store Cost Recovery

SprintLDD Commission

ThirdParty Promotions

UpgradeCommission – RadioShack

 

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