Exhibit 10.1
Note: Certain portions have been
omitted from this Ninth Amendment to the Amended and Restated PCS
Services Agreement in accordance with a request for confidential
treatment submitted to the Securities and Exchange Commission.
Omitted information has been replaced with an asterisk. Omitted
information has been filed separately with the Securities and
Exchange Commission.
Ninth Amendment to Amended and
Restated PCS Services Agreement
Between Sprint Spectrum L.P. and
Virgin Mobile USA, L.P.
This Ninth Amendment (“Ninth
Amendment”) is made to that certain Amended and Restated PCS
Services Agreement between Sprint Spectrum L.P.
(“Sprint PCS”) and Virgin Mobile USA, L.P.
(formerly Virgin Mobile USA, LLC) (“VMU”) dated
October 16, 2007, as amended, (the “PCS Services
Agreement”). Capitalized terms not defined in this Ninth
Amendment are defined in the PCS Services Agreement.
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1.
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Section 1
( Definitions ) is amended to add the following
definitions:
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“ Eligible Subs ”
means End Users assigned to the *.
“PDA”
means a handheld device that
combines computing, wireless phone, Internet and networking
features and serves as a personal organizer.
“ * ” means a
*.
“*”
means a * .
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2.
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Schedule 1.0 of
the PCS Services Agreement and Exhibit A to Schedule 1.0 are
deleted in their entirety and replaced with Schedule 1.0 and
Exhibit A to Schedule 1.0 attached to this Ninth
Amendment.
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3.
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Except as
specifically provided above, the PCS Services Agreement remains in
effect in accordance with its terms.
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IN WITNESS HEREOF, the parties have
executed this Ninth Amendment as of the dates indicated
below.
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SPRINT
SPECTRUM L.P.
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VIRGIN MOBILE USA, L.P. (formerly Virgin
Mobile USA, LLC)
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By:
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By:
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Name:
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Name:
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Its:
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V.P. Customer
Management-Wholesale
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Its:
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Date:
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Date:
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9
th Amendment
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Sprint PCS / Virgin Mobile USA
Confidential Information
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1
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Schedule 1.0
PCS Service
Pricing
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1.
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Pricing
Effective for 2009 and 2010
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The rates and charges that Sprint
PCS will charge VMU for PCS Service and Roaming for 2009 and 2010
are set forth in Section 1 below. The rates and terms listed
in this Section 1 may be modified only by mutual written
agreement of the parties, and the parties agree to conduct any
negotiation of this Section 1 in a commercially reasonable
manner, and until such mutual written agreement of the parties to
modify the rates or terms, the rates and terms in this
Section 1 apply. For the avoidance of doubt, beginning with
calendar year 2009 and going forward for the remainder of the PCS
Services Agreement, unless otherwise negotiated by the parties,
there will not be a minimum annual commitment for any given year.
Handsets, PDAs, “smart phones” and other similar
devices will be considered “handsets” as that term is
used in this Schedule 1.0. * will not be considered
“handsets” as that term is used in this Schedule
1.0.
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1.1
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2009
Voice PCS Service, Sprint 2G Data Service, SMS and Sprint 3G Data
Transport Service Pricing for Handsets
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A.
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Voice PCS
Service and Sprint 2G Data Service Rates
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For End Users voice PCS Service and
Sprint 2G Data Service usage, Sprint PCS will charge VMU (i)
the peak per minute rate set forth in the table below for
Peak Time Period MOU during each monthly billing cycle, and
(ii) the off-peak per minute rate set forth in the
table below for Off-Peak Time Period MOU during each monthly
billing cycle. The peak and off-peak rates below include domestic
toll charges, Travel MOU charges and any applicable interconnection
charges. The peak and off-peak rates DO NOT include Roaming charges
or international toll charges. VMU will be charged the rates set
forth in Sections 1.7 or 1.8 below for Roaming and the rates set
forth in Section 1.9 for international toll calls. During
April 2009 through December 2009, for any monthly billing cycle
during which VMU’s total voice PCS Service and Sprint 2G Data
Service MOUs equal or exceed * , the invoice generated for
such monthly billing cycle will reflect the peak and off-peak rates
described in this Section 1.1(A), and Sprint will manually
re-rate all of VMU’s voice PCS Service and Sprint 2G Data
Service MOUs for such monthly billing cycle at the applicable rates
described in Section 1.2 below, which will be accomplished by
Sprint issuing credits on the “True-Up Statement” VMU
will receive as part of the supporting documentation for the
invoice for such monthly billing cycle.
Sprint PCS will charge VMU the per
SMS rate set forth in the table below for VMU’s total number
of mobile terminated SMS and mobile originated SMS messages during
the monthly billing cycle. Sprint PCS may modify the SMS rate below
from time to time with respect to those SMS messages sent and
received outside of the United States, but will provide advance
notice if possible prior to any rate increase.
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C.
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Sprint 3G
Data Transport Service for Handsets
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Sprint PCS will charge VMU the per
MB rate set forth in the table below for VMU’s total number
of Sprint 3G Data Transport Service MB usage on handsets during
each
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9
th Amendment
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Sprint PCS / Virgin Mobile USA
Confidential Information
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2
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monthly billing cycle. For reference
purposes, the per kilobyte (“KB”) rate is also shown
below. The per MB rate below includes any applicable
interconnection charges and Travel 3G Data Transport charges. The
Sprint 3G Data Transport Service rate in the table below is for
data transport only and does not include access to individual
Sprint-provided 3G data services.
2009 Voice PCS Service, Sprint
2G Data Service, SMS and Sprint 3G Data Transport
Service
Table for
Handsets
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Peak Per
Minute Rate
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Off-Peak Per
Minute Rate
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Per SMS Rate
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Handset
Per MB
Rate
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Handset
Per KB
Rate
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$*
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$*
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$*
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$*
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$*
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Voice PCS Service and Sprint
2G Data Service Peak and Off-Peak Time Periods
“Peak Time Period”:
* – * , * – * ,
except
national holidays observed by the United States
Postal Service.
“Off-Peak Time Period”: *
– * , * – * and * –
* , and national holidays observed by the
United States Postal Service.
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1.2
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2009
Voice PCS Service and Sprint 2G Data Service Pricing For 2Q09
– 4Q09 if Monthly MOUs Equal or Exceed *
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1.2.1
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Voice PCS
Service and Sprint 2G Data Service Pricing for 2Q09 if Monthly MOUs
Equal or Exceed *
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For each monthly billing cycle
during April 2009 through June 2009 during which VMU’s total
voice PCS Service and Sprint 2G Data Service MOUs equal or exceed
* , for End Users voice PCS Service and Sprint 2G Data
Service usage during such monthly billing cycle, Sprint PCS will
charge VMU (i) the rate set forth in Tier 1 in Special
Pricing Table #1 set forth below for * MOUs generated during
each such monthly billing cycle, and (ii) for MOUs
that exceed * MOUs during each such monthly billing cycle,
(a) if the average MOUs for all Eligible Subs for such
monthly billing cycle is less than * , Sprint PCS will
charge VMU the applicable anytime per minute rate for the
incremental MOUs that VMU achieves for each individual tier in
Special Pricing Table #1 below, as further described in the first
example below, or (b) if the average MOUs for all
Eligible Subs for such monthly billing cycle equals or exceeds
* , Sprint PCS will charge VMU the applicable anytime per
minute rate for the incremental MOUs that VMU achieves for each
individual tier in Special Pricing Table #2 below, as further
described in the second example below. For each monthly billing
cycle during April 2009 through June 2009 during which VMU’s
total voice PCS Service and Sprint 2G Data Service MOUs equal or
exceed * , no later than the fourth business day following
the end of each such monthly billing cycle, VMU will provide Sprint
with MOU usage reports that contain sufficient data to allow Sprint
to determine the average MOUs for all Eligible Subs for such
monthly billing cycle. If VMU fails to provide the MOU usage
reports described herein within the specified timeframe, Sprint
will consider the average MOUs for all Eligible Subs for such
monthly billing cycle to be less than * for purposes of
determining the rate for MOUs that exceed * .
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9
th Amendment
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Sprint PCS / Virgin Mobile USA
Confidential Information
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3
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Special Pricing Table
#1
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Monthly Minutes of Use
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Per Minute Rate
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1
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* –
*
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$*
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2
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* –
*
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$*
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3
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* –
*
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$*
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4
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* –
*
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$*
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5
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* +
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$*
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Special Pricing Table
#2
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Monthly Minutes of Use
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Per Minute Rate
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1
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* –
*
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$*
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2
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* –
*
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$*
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3
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* –
*
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$*
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4
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* +
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$*
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By way of example, if VMU
generated *
MOUs during the April 1,
2009 through April 30, 2009 billing cycle, and the average
MOUs for all Eligible Subs is * ,
Sprint PCS would charge VMU as follows:
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* =
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$*
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* =
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$*
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* =
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$*
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* =
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$*
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Total
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$*
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By way of another example, if VMU
generated *
MOUs during the June 1, 2009
through June 30, 2009 billing cycle, and the average MOUs for
all Eligible Subs is * ,
Sprint PCS would charge VMU as follows:
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* =
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$*
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* =
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$*
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* =
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$*
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* =
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$*
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Total
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$*
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1.2.2
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Voice PCS
Service and Sprint 2G Data Service Pricing For 3Q09 – 4Q09 if
Monthly MOUs Equal or Exceed *
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For each monthly billing cycle
during July 2009 through December 2009 during which VMU’s
total voice PCS Service and Sprint 2G Data Service MOUs equal or
exceed * , for End Users voice PCS Service and Sprint 2G
Data Service usage during each such monthly billing cycle,
(i) Sprint PCS will charge VMU the rate set forth in
Tier 1 in the 3Q-4Q Voice PCS Service and Sprint 2G Data Service
Special Pricing Table (“3Q09-4Q09 Special Pricing
Table”) set forth below for * MOUs generated during
each such monthly billing cycle, and (ii) for MOUs
that exceed * MOUs during each such monthly billing cycle,
Sprint PCS will charge VMU the applicable anytime per minute rate
for the incremental MOUs that VMU achieves for each individual tier
in the 3Q09-4Q09 Special Pricing Table as further described in the
example below.
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9
th Amendment
|
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Sprint PCS / Virgin Mobile USA
Confidential Information
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4
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3Q09-4Q09 Voice PCS Service
and Sprint 2G Data Service Special Pricing Table
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Monthly Minutes of
Use
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Anytime Per Minute
Rate
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1
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* –
*
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$*
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2
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* –
*
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$*
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3
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* –
*
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$*
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4
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* –
*
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$*
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5
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* –
*
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$*
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6
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* –
*
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$*
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7
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* +
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$*
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By way of example, if VMU
generated *
MOUs during the December 1,
2009 through December 31, 2009 billing cycle, Sprint PCS would
charge VMU as follows:
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* =
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$*
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* =
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$*
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* =
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$*
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* =
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$*
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* =
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$*
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Total
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$*
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VMU must assign all End Users with a
* to either the “ * Casual Usage Plan”
set forth in Section 1.3.1 below or the “ * MRC
Plan” set forth in Section 1.3.2 below. VMU may not
assign handsets or PDAs to the * pricing set forth below in
this section. The * Casual Usage Plan and the * MRC
Plan will be made available to VMU based on the first available
change window in Sprint’s billing system which date will be
no later than June 1, 2009, at which time Sprint will notify
VMU of their availability.
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1.3.1
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* Casual
Usage Plan
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For * End Users that VMU
assigns to the * Casual Usage Plan set forth in this
Section 1.3.1, Sprint will charge VMU the * rate set
forth in the table below for each * usage during the monthly
billing cycle. For reference purposes, per * rates are also
shown below.
* Casual Usage
Plan
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Rate Per *
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Rate Per *
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$*
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$*
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For * End Users that VMU
assigns to the * MRC Plan set forth in this
Section 1.3.2, Sprint will charge VMU (a) the
monthly recurring charge (“MRC”) set forth in the table
below during each monthly billing cycle, and (b) the
* rate set forth in the table below for each * usage
during the monthly billing cycle. For reference purposes, per
* rates are also shown below.
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9
th Amendment
|
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Sprint PCS / Virgin Mobile USA
Confidential Information
|
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5
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* MRC Plan
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MRC
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Rate Per *
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Rate Per *
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$*
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$*
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$*
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1.3.3
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If Sprint
discovers that VMU has activated handsets under the *
pricing set forth in Section 1.3.1 or Section 1.3.2
above, (i) Sprint will charge VMU the difference
between the rates Sprint charged VMU for such handsets and the
handset pricing set forth in Section 1.1(C) above, for usage
on such handsets, and (ii) VMU must promptly remove
such handsets from the * pricing.
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1.4
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2010
Voice PCS Service, Sprint 2G Data Service, SMS and Sprint 3G Data
Transport Service Pricing for Handsets
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At the end of calendar year 2009,
Sprint PCS will calculate the 2009 Actual Revenue (defined in
Section 1.4(D) below). VMU’s Sprint 3G Data Transport
Service rates for all bill cycles that commence during the 2010
calendar year will be based on the 2009 Actual Revenue tier that
VMU achieves as described below in this Section 1.4. For
avoidance of doubt, VMU may not purchase additional minutes of
voice PCS Service, SMS messages or MB of Sprint 3G Data Transport
Service to qualify VMU to achieve a higher tier than the tier VMU
actually achieves for 2009 Actual Revenue.
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A.
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Voice PCS
Service and Sprint 2G Data Service Rates
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For End Users voice PCS Service and
Sprint 2G Data Service usage, Sprint PCS will charge VMU (i)
the applicable peak per minute rate set forth in the table
below for Peak Time Period MOU during each monthly billing cycle,
and (ii) the applicable off-peak per minute rate set
forth in the table below for Off-Peak Time Period MOU during each
monthly billing cycle. The peak and off-peak rates below include
domestic toll charges, Travel MOU charges and any applicable
interconnection charges. The peak and off-peak rates DO NOT include
Roaming charges or international toll charges. VMU will be charged
the rates set forth in Sections 1.7 or 1.8 below for Roaming and
the rates set forth in Section 1.9 for international toll
calls. During 2010, for any monthly billing cycle during which
VMU’s total voice PCS Service and Sprint 2G Data Service MOUs
equal or exceed * , the invoice generated for such monthly
billing cycle will reflect the peak and off-peak rates described in
this Section 1.4(A), and Sprint will manually re-rate all of
VMU’s voice PCS Service and Sprint 2G Data Service MOUs for
such monthly billing cycle at the applicable rates described in
Section 1.5 below, which will be accomplished by Sprint
issuing credits on the “True-Up Statement” VMU will
receive as part of the supporting documentation for the invoice for
such monthly billing cycle.
Sprint PCS will charge VMU the
applicable per SMS rate set forth in the table below for
VMU’s total number of mobile terminated SMS and mobile
originated SMS messages during the monthly billing cycle. Sprint
PCS may modify the SMS rate below from time to time with respect to
those SMS messages sent and received outside of the United States,
but will provide advance notice if possible prior to any rate
increase.
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9
th Amendment
|
|
Sprint PCS / Virgin Mobile USA
Confidential Information
|
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6
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C.
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Sprint 3G
Data Transport Service for Handsets
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Sprint PCS will charge VMU the
applicable per MB rate set forth in the table below for VMU’s
total number of Sprint 3G Data Transport Service MB usage on
handsets during each monthly billing cycle. For reference purposes,
the per KB rates are also shown below. The per MB rates below
include any applicable interconnection charges and Travel 3G Data
Transport charges. The Sprint 3G Data Transport Service rates in
the table below are for data transport only and do not include
access to individual Sprint-provided 3G data services.
2010 Voice PCS Service, Sprint
2G Data Service, SMS and Sprint 3G Data Transport
Service
Table for
Handsets
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Peak Per
Minute
Rate
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Off-Peak
Per Minute
Rate
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Per SMS
Rate
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Handset
Per MB
Rate
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Handset
Per KB
Rate
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* - $*
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$*
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$*
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$*
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$*
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$*
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$* - $*
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$*
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$*
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$*
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$*
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$*
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$* - $*
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$*
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$*
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$*
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$*
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$*
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$* - $*
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$*
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$*
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$*
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$*
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$*
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$* and above 1
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$*
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$*
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$*
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$*
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$*
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1
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If VMU achieves 2009 Actual
Revenue of $ * or above, VMU will also receive a $ *
credit on the February 1, 2010 invoice.
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Voice PCS Service and Sprint
2G Data Service Peak and Off-Peak Time Periods
“Peak Time Period”:
* – * , * – * ,
except
national holidays observed by the United States
Postal Service.
“Off-Peak Time Period”: *
– * , * – * and * –
* , and national holidays observed by
the United States Postal Service.
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D.
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The following
definitions only apply to Section 1.4:
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“ 2009 Actual Revenue
” means the total of all amounts invoiced to VMU under the
PCS Services Agreement on an Invoice for each of VMU’s 2009
bill cycles for 2009 Service Usage including credits or debits
related to disputed charges or billing errors for 2009 Service
Usage (defined below) that are typically included on the
“True-Up Statement” VMU receives as part of the
supporting documentation for each invoice, which does not include
the 2009 Additional Amounts (defined below), and does not include
New End User Credits, if any, issued for each new End User that
activates during calendar year 2009, as described in
Section 1.13 below, but does include royalty payment amounts
made pursuant to the Amended and Restated Trademark License
Agreement between VMU and Sprint Communications Company, L.P. For
clarification purposes, 2009 Actual Revenue will include invoices
for any bill cycle that commences after January 19, 2009 and
will include invoices for any bill cycle that commences during
December 2009 even if such bill cycle ends in January 2010 (e.g., a
January 19, 2010 invoice for a December 19, 2009 through
January 18, 2010 bill cycle will be counted towards 2009
Actual Revenue).
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9
th Amendment
|
|
Sprint PCS / Virgin Mobile USA
Confidential Information
|
|
7
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“ 2009 Service Usage
” means: (i) usage for all services listed in
Sections 1.1, 1.7, 1.8, 1.9, 1.10, 1.11 and 1.12 of Schedule 1.0,
and (ii) ADC codes, if applicable, as described in
Section 2.14 of the PCS Services Agreement.
“ 2009 Additional
Amounts ” means (i) amounts invoiced to VMU
for any Customized Service, (ii) Late Payment Fees,
(iii) any unique amounts invoiced to VMU for which
pricing is not described in Schedule 1.0, or (iv) any
credits (other than New End User Credits) invoiced to VMU that are
not directly related to disputed charges or billing errors for
Voice/SMS/Data Usage.
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1.5
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2010
Voice PCS Service and Sprint 2G Data Service Pricing if Monthly
MOUs Equal or Exceed *
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For each monthly billing cycle
during 2010 during which VMU’s total voice PCS Service and
Sprint 2G Data Service MOUs equal or exceed * , for End
Users voice PCS Service and Sprint 2G Data Service usage during
each such monthly billing cycle, (i) Sprint PCS will
charge VMU the rate set forth in Tier 1 in the “2010 Voice
PCS Service and Sprint 2G Data Service Special Pricing Table”
set forth below in this Section 1.5 for * MOUs
generated during each such monthly billing cycle, and (ii)
for MOUs that exceed * MOUs during each such monthly
billing cycle, Sprint PCS will charge VMU the applicable anytime
per minute rate for the incremental MOUs that VMU achieves for each
individual tier in the 2010 Voice PCS Service and Sprint 2G Data
Service Special Pricing Table, as further described in the example
below. By way of example, if VMU generated * MOUs
during the March 1, 2010 through March 31, 2010 billing
cycle, Sprint PCS would charge VMU as follows:
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* =
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$*
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* =
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$*
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* =
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$*
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* =
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$*
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* =
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$*
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* =
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$*
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Total
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$*
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For purposes of this
Section 1.5, the “ 1-1-2010 Invoice Effective
Rate ” will be determined by dividing (x)
the total peak and off-peak per minute charges for voice PCS
Service and Sprint 2G Data Service MOUs for VMU’s
January 1, 2010 invoice, and if VMU’s total voice PCS
Service and Sprint 2G Data Service MOUs for the December 2009
monthly billing cycle equal or exceed * , credits issued on
the True-Up Statement for such invoice that re-rate VMU’s
voice PCS Service and Sprint 2G Data Service MOUs to the applicable
rates described in Section 1.2 above, by (y)
VMU’s total voice PCS Service and Sprint 2G Data Service MOUs
for the December 2009 mont
