EX-10.59





CONFIDENTIAL TREATMENT REQUESTED UNDER

C.F.R. SECTIONS 200.80(b)(4), 200.83 AND 230.406.

[*****] INDICATES OMITTED MATERIAL THAT IS THE

SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST

FILED SEPARATELY WITH THE COMMISSION.

THE OMITTED MATERIAL HAS BEEN FILED

SEPARATELY WITH THE COMMISSION.



Exhibit 10.59




EXHIBIT A




4G MVNO Agreement




dated as of




[•], 20[•]




among




[NewCo, LLC],




Comcast MVNO II, LLC,




TWC Wireless, LLC,




BHN Spectrum Investments, LLC




and




Sprint Spectrum L.P.




 









 





TABLE OF CONTENTS




	 	 	 	 	 	 	 
	4G MVNO Agreement	 	 	4	 
	 
	 	 	 	 	 	 
	Background	 	 	4	 
	 
	 	 	 	 	 	 
	Operative Terms	 	 	4	 
	 
	 	 	 	 	 	 
	1. Definitions	 	 	4	 
	 
	 	 	 	 	 	 
	2. SIG Party Relationship	 	 	12	 
	2.1
	 	General	 	 	12	 
	2.2
	 	Services Provided	 	 	13	 
	2.3
	 	Limited Purpose; No Disparagement	 	 	17	 
	2.4
	 	SIG Party Participation	 	 	19	 
	2.5
	 	Brand Restrictions	 	 	20	 
	2.6
	 	Control of NewCo Network	 	 	20	 
	2.7
	 	Right to Make Available to Controlled Affiliate	 	 	20	 
	2.8
	 	Independent Representatives and Agents	 	 	21	 
	2.9
	 	Unique Characteristics of Relationship	 	 	21	 
	2.10
	 	Services Provided to NewCo	 	 	21	 
	2.11
	 	Most Favored Reseller	 	 	21	 
	 
	 	 	 	 	 	 
	3. Term	 	 	22	 
	 
	 	 	 	 	 	 
	4. Conditions Precedent	 	 	22	 
	 
	 	 	 	 	 	 
	5. Representations and Warranties and Covenants	 	 	22	 
	5.1
	 	General Warranties	 	 	22	 
	5.2
	 	Compliance with Laws	 	 	23	 
	5.3
	 	Litigation	 	 	23	 
	5.4
	 	NewCo Licenses	 	 	23	 
	 
	 	 	 	 	 	 
	6. Scope of Wireless Broadband Service	 	 	23	 
	6.1
	 	Wireless Broadband Service	 	 	23	 
	6.2
	 	Scope of Wireless Broadband Service	 	 	23	 
	6.3
	 	Device Handling Services	 	 	24	 
	6.4
	 	Coverage Maps and Coverage Data	 	 	25	 
	6.5
	 	MVNO Operational Support	 	 	25	 
	6.6
	 	Provisioning	 	 	26	 
	 
	 	 	 	 	 	 
	7. Prices and Terms of Payment	 	 	26	 
	7.1
	 	Prices	 	 	26	 
	7.2
	 	Dual-Mode Pricing	 	 	26	 
	7.3
	 	Payment of Charges	 	 	26	 
	7.4
	 	Invoices	 	 	26	 
	7.5
	 	Late Payments	 	 	27	 
	7.6
	 	Disputed Charges	 	 	27	 
	7.7
	 	Taxes and Other Levies by Taxing and Governmental Authorities	 	 	28	 
	7.8
	 	SIG Party Liability; Parent Company Guarantees; NewCo Obligations	 	 	29	 
	7.9
	 	Access	 	 	29	 
	7.10
	 	Audit Right	 	 	29	 






	 	 	 
	Confidential Information — Subject to Nondisclosure Obligations

	 	 








i









 






	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	8. SIG Party Rights and Obligations	 	 	30	 
	8.1
	 	Handsets and Other Mobile Devices	 	 	30	 
	8.2
	 	SIG Party Staff	 	 	32	 
	8.3
	 	SIG Party Responsibility for End User Services	 	 	32	 
	8.4
	 	The SIG Party’ Responsibility for Fraud	 	 	32	 
	8.5
	 	Interference	 	 	32	 
	8.6
	 	SIG Party Reports to NewCo	 	 	32	 
	8.7
	 	Legal Request Compliance	 	 	32	 
	8.8
	 	Electronic Surveillance	 	 	33	 
	8.9
	 	Exclusivity, Etc.	 	 	33	 
	 
	 	 	 	 	 	 
	9. NewCo Rights and Obligations	 	 	33	 
	9.1
	 	Modifications; MVNO Operations Manual	 	 	33	 
	9.2
	 	NewCo Network Fraud Detection and Responsibility	 	 	34	 
	9.3
	 	NewCo’s Reports to the SIG Parties	 	 	34	 
	9.4
	 	Service Levels; Material Degradation	 	 	34	 
	9.5
	 	Certain Information	 	 	35	 
	 
	 	 	 	 	 	 
	10. Limitations of Warranties and Liabilities	 	 	35	 
	10.1
	 	No Warranties	 	 	35	 
	10.2
	 	Limitations on Liability	 	 	36	 
	 
	 	 	 	 	 	 
	11. Intellectual Property	 	 	36	 
	11.1
	 	Trade Name, Trade Marks and Service Marks	 	 	36	 
	11.2
	 	Other Intellectual Property	 	 	37	 
	 
	 	 	 	 	 	 
	12. Indemnification	 	 	37	 
	12.1
	 	SIG Party Indemnification	 	 	37	 
	12.2
	 	NewCo’s Indemnification	 	 	37	 
	12.3
	 	Indemnification Procedures	 	 	38	 
	 
	 	 	 	 	 	 
	13. Termination and Transition Assistance	 	 	39	 
	13.1
	 	NewCo Termination Rights	 	 	39	 
	13.2
	 	SIG Party Termination Rights	 	 	39	 
	13.3
	 	NewCo Change of Control	 	 	40	 
	13.4
	 	Sale of License or Loss of Market	 	 	40	 
	13.5
	 	SIG Party Rights and Remedies Upon the Occurrence of Certain Events	 	 	41	 
	13.6
	 	Length of and Duties During the Phase-Out Period	 	 	41	 
	13.7
	 	Effect of Termination	 	 	42	 
	13.8
	 	Transition Assistance	 	 	42	 
	 
	 	 	 	 	 	 
	14. End User Related Obligations and Restrictions	 	 	43	 
	14.1
	 	Wireless Broadband Service Coverage	 	 	43	 
	14.2
	 	SIG Party Restrictions Relating to End User Migration	 	 	43	 
	14.3
	 	Use Restrictions	 	 	44	 
	14.4
	 	Relief	 	 	44	 
	 
	 	 	 	 	 	 
	15. Confidentiality	 	 	44	 
	15.1
	 	Definition	 	 	44	 
	15.2
	 	Restrictions	 	 	45	 
	15.3
	 	Return	 	 	47	 
	15.4
	 	Care	 	 	47	 
	15.5
	 	Relief	 	 	47	 
	15.6
	 	Duration	 	 	47	 
	15.7
	 	SEC Filing	 	 	47	 
	15.8
	 	Entire Understanding	 	 	47	 






ii









 






	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	16. Divestitures Acquisitions and Assignment	 	 	47	 
	16.1
	 	Divested Businesses	 	 	47	 
	16.2
	 	Acquisitions	 	 	49	 
	16.3
	 	Assignment	 	 	49	 
	 
	 	 	 	 	 	 
	17. General Provisions	 	 	50	 
	17.1
	 	Notices and Inquiries	 	 	50	 
	17.2
	 	Non-exclusivity	 	 	51	 
	17.3
	 	Construction	 	 	52	 
	17.4
	 	Survival	 	 	52	 
	17.5
	 	Headings	 	 	52	 
	17.6
	 	Severability	 	 	52	 
	17.7
	 	Dispute Resolution	 	 	52	 
	17.8
	 	Confidential Arbitration	 	 	53	 
	17.9
	 	Governing Law; Exclusive Venue	 	 	54	 
	17.10
	 	Specific Performance	 	 	55	 
	17.11
	 	Waiver of Jury Trial	 	 	55	 
	17.12
	 	Counterpart Execution	 	 	55	 
	17.13
	 	Entire Agreement	 	 	55	 
	17.14
	 	No Partnership; No Third-Party Beneficiaries	 	 	55	 
	17.15
	 	Amendments; Waivers; Remedies	 	 	55	 
	17.16
	 	Force Majeure	 	 	56	 
	17.17
	 	Disclosure	 	 	56	 






iii











 





4G MVNO Agreement



This 4G MVNO Agreement (as amended, modified or supplemented from time to time, this “Agreement”)
is dated as of [•], 20[•] (the “Effective Date”) by and among [NewCo, LLC],1 a Delaware
limited liability company (“NewCo”), Comcast MVNO II, LLC, a Delaware limited liability company
(“Comcast”), TWC Wireless, LLC, a Delaware limited liability company (“TWC”), BHN Spectrum
Investments, LLC, a Delaware limited liability company (“Brighthouse”), Sprint Spectrum L.P., a
Delaware limited partnership, d/b/a/ Sprint (“Sprint”), and each other Person who shall become a
party to this Agreement in accordance with Section 2.4(a).




BACKGROUND




     A. NewCo holds and leases certain BRS and EBS licenses issued by the FCC and leases excess
capacity on EBS licenses. NewCo is developing and will own and operate the NewCo Network and
provide Wireless Broadband Services in the United States.



     B. Upon the terms and subject to the conditions hereinafter set forth, each SIG Party desires
to purchase the Wireless Broadband Service from NewCo and market and sell the Wireless Broadband
Service to its End Users as MVNO Service. NewCo desires to sell the Wireless Broadband Service to
each SIG Party for resale to its End Users.



     NOW, THEREFORE, and in consideration of the mutual promises set forth in this Agreement, NewCo
and the SIG Parties agree:



OPERATIVE TERMS




     1. Definitions




     [*****]



     “3G MVNO Agreement” means the MVNO Support Agreement dated as May [•], 2008 among Sprint,
Comcast, TWC, Brighthouse, and each other Person who shall become a party to such agreement in
accordance with the terms thereof, as amended, modified or supplemented from time to time.



     “4G MVNO Agreement Option” has the meaning specified in Section 2.4(a).



     “AAA” has the meaning specified in Section 17.8(b).



     [*****]



     [*****]



     “Affiliate” means, with respect to any Person, any other Person controlling, controlled by, or
under common control with such Person. For purposes of this Agreement, the term “control”
(including, with correlative meanings, the terms “controlling”, “controlled by” and “under common
control with” as used with respect to any Person) means the possession, directly or indirectly, of
the power to affirmatively direct or cause the direction of the management and policies of such
Person, whether by voting securities, contract or otherwise. If a group consisting of two or more
SIG Parties and/or Affiliates of SIG Parties possesses collectively, directly or indirectly, the
power to affirmatively direct or cause the direction of the management and policies of a Person,
whether by voting securities, contract or otherwise, that Person is an Affiliate of each such SIG
Party and of each Affiliate of each such SIG Party; provided that if any single member of any such
group possesses such power by itself, that Person is an Affiliate only of that member of such
group. For purposes of this Agreement, neither NewCo nor any of its subsidiaries shall be deemed
to be an Affiliate of any SIG Party or any of its Affiliates (other than NewCo and its
subsidiaries) and none of the SIG Parties or their respective Affiliates (other than NewCo and its
subsidiaries) shall be deemed to be an Affiliate of NewCo and its subsidiaries.





 




			
	1	 	Prior to execution, appropriate legal name to be
inserted to reference NewCo LLC (as such term is defined in the Transaction
Agreement).














 










     “Agency Agreement” means an agency agreement entered into by NewCo or any of its Controlled
Affiliates with a Founding Partner or any of its Controlled Affiliates allowing such Person to sell
Wireless Broadband Service as an agent.



     “Aggregate Excess Standalone Amount” has the meaning specified in Section 2.3.2(c).



     “Agreement” has the meaning specified in the preamble.



     “Applicable Law” means any law, rule, statute, regulation, order, judgment, decree, treaty,
directive or other requirement in force at any time during the Term (including any Phase-Out
Period) applicable with respect to any Party which applies to or is otherwise intended to govern or
regulate any Party in the performance of its obligations or the exercise of its rights under this
Agreement.



     “Applicable Percentage” has the meaning specified in Section 14.2(a).



     “Applicable Standalone Percentage” has the meaning specified in Section 2.3.2(c).



     “Arbitration Costs” has the meaning specified in Section 17.8(c).



     “Attorneys’ Fees” has the meaning specified in Section 17.8(c).



     “Brighthouse” has the meaning specified in the preamble.



     “BRS” means Broadband Radio Service licenses in the 2.5 GHz band.



     “Business Day” means a day of the year, other than Saturday, Sunday or any other day on which
commercial banks in the State of New York are required or authorized by Applicable Law to close.



     “CDMA” means code division multiple access technology.



     “Change of Control” means any of the following events:




     (i) the sale of more than the Specified Percentage of the consolidated assets of the
Ultimate Parent of NewCo and its subsidiaries;




     (ii) any merger, consolidation, share exchange, recapitalization, sale, issuance,
disposition, transfer of capital stock or other transaction, in each case in which any
Person or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities
Exchange Act of 1934, as amended) (other than any Founding Member and their respective
Controlled Affiliates) acquires beneficial ownership of more than the Specified Percentage
of either




     (A) the then-outstanding shares of common stock or equivalent securities
(determined on an as-converted basis) of the Ultimate Parent of NewCo, or




     (B) the combined voting power of the then-outstanding voting securities of the
Ultimate Parent of NewCo entitled to vote generally in the election of directors; or




(iii) during any period of 24 consecutive months, a majority of the members of the board of
directors of the Ultimate Parent of NewCo (the “Board”) ceases to be composed of individuals
(A) who were members of that board on the first day of such period, (B) whose election or
nomination to the Board was approved by individuals referred to in clause (A) above
constituting at the time of such election or nomination at least a majority of the Board or
(C) whose election or nomination to the Board was approved by individuals referred to in
clauses (A) and (B) above constituting at the time of such election or nomination at least a
majority of that board or equivalent governing body; provided, however, that a member of the
Board who differs from the individual who was a member of the Board on the first day of the
applicable period will be deemed to have been a member on the first day of the applicable
period if such member was nominated or otherwise designated by the same Person as appointed
the original member in accordance with Section 2.1 of the Equityholders’ Agreement dated as
of the date hereof among the Ultimate Parent of NewCo, certain Affiliates of the Founding
Members and certain other Persons.



     “Claim” has the meaning specified in Section 12.3(a).



5









 





     “CMA” means a cellular market area as used to define A-Block license areas in FCC Auction 66
and which consists of either a metropolitan statistical area or a rural service area.



     “Comcast” has the meaning specified in the preamble.



     “Committed Performance Date” has the meaning specified in Section 9.4.2.



     “Competitive Wireless Service” has the meaning specified in Section 14.2(b)(i).



     “Complex Non-Standard Network Service” has the meaning specified in Section 2.2.3(b)(i).



     [*****]



     “Confidential Information” has the meaning specified in Section 15.



     “Content” means content negotiated and implemented for use in connection with its MVNO Service
by any SIG Party or any of its Controlled Affiliates.



     “Controlled Affiliate” means, with respect to any Person, such Person’s Ultimate Parent and
any Affiliate of such Parent that is controlled by such Ultimate Parent.



     “CPNI” means the information described in the FCC’s definition of “Customer Proprietary
Network Information” as set forth in 47 USC Section 222(h)(1) (as amended, and interpreted from
time to time).



     “Customer” means any Person purchasing from NewCo (i) Wireless Broadband Service, including
any prepaid service, including any end user customer of NewCo’s retail operations, and (ii) any
reseller purchasing such Wireless Broadband Service for resale to its end user customers, but
excluding any Founding Partner purchasing Wireless Broadband Service under this Agreement or any
other resale agreement.



     “Customer Data” means all information collected or developed by (i) NewCo or any of its
Controlled Affiliates regarding Customers or (ii) any SIG Party or any of its Controlled Affiliates
regarding Customers (solely in their capacity as Customers), which has come into the possession or
knowledge of any other Party in the course of negotiating, entering into or performing this
Agreement, including under each of clauses (i) and (ii) of this definition, location-based
information, status/presence, service usage (voice or data or messaging), data usage, all phone or
other identification numbers issued to Customers, all electronic serial numbers, all Customer
personalization information and all automatic number identification information and all CPNI.



     “Damages” has the meaning specified in Section 12.1.



     “Demand” has the meaning specified in Section 17.8(a).



     “Device” means a Wireless Data Card, embedded chip, USB drive or dongle, handset, Wireless
PDA, “smart phone”, personal media player, or other hardware that operates on the NewCo Network
(including any “[*****]” device capable of operating on the Sprint Network and the NewCo
Network).



     “Disclosing Party” has the meaning specified in Section 15.1(a).



     “Disposed License” has the meaning specified in Section 13.4(a).



     “Disputed Pricing Terms” has the meaning specified in Section 17.8(c).



     “Divested Network” has the meaning specified in Section 16.1(b).



     “Due Date” has the meaning specified in Section 7.4.



     “EBS” means Educational Broadband Service licenses in the 2.5 GHz band.



     “End User” means, with respect to any SIG Party, any retail customer purchasing MVNO Service
from such SIG Party (or a Controlled Affiliate of such SIG Party pursuant to Section 2.7).



     [*****]



     “End User Data” means, with respect to any SIG Party, all information collected or developed
by (i) such SIG Party or any of its Controlled Affiliates regarding its End Users or (ii) NewCo or
any other SIG Party or any of their respective Controlled Affiliates regarding the SIG Party’s End
Users (solely in their



6









 




capacity as End Users of such SIG Party), which has come into the possession or knowledge of any
other Party in the course of negotiating, entering into or performing this Agreement, including
under each of clauses (i) and (ii) of this definition, location-based information, status/presence,
service usage (voice or data or messaging), data usage, aggregate information with respect to End
Users of such each SIG Party (e.g., usage patterns of such End User), but excluding aggregate
information with respect to all end users (including all End Users of all SIG Parties) of the NewCo
Network, all phone or other identification numbers issued to End Users, all electronic serial
numbers, all End User personalization information and all automatic number identification
information and all CPNI.




     “Effective Date” has the meaning specified in the preamble.



     [*****]



     “Exclusivity Period” has the meaning specified in Section 8.1.1(a).



     “Facilities” means all software, hardware, equipment, circuits and other tangible and
intangible property owned, leased, licensed or for which NewCo or any of its Controlled Affiliates
has the right to use in providing the Wireless Broadband Service.



     “FCC” means the Federal Communication Commission or any successor agency.



     “FCC Rules” means the rules promulgated by the FCC, as amended from time to time.



     “Five-Year Renewal Periods” has the meaning specified in Section 3(b).



     “Force Majeure Event” has the meaning specified in Section 17.16.



     “Forum” has the meaning specified in Section 2.2.1(d).



     [*****]



     “Founding Partners” means each of Sprint, Comcast, TWC, Brighthouse, Google and Intel and (ii)
each Controlled Affiliate of each Person listed in (i) above to the extent that it or such
Controlled Affiliate is, as of the date of determination, a party to this Agreement or another
Reseller Agreement.



     “Frustrated Party” has the meaning specified in Section 17.16.



     “Generic Embedded Devices” means devices (other than SIG Party-Defined Devices) that are
embedded with the capability to operate on the NewCo Network via a NewCo connection management
utility or a SIG Party connection management utility. A Generic Embedded Device is branded by or
co-branded by NewCo or a SIG Party with the device OEM and distributed through the device OEM or
NewCo channels for retail services subscription with NewCo or a SIG Party.



     “Google” means Google Inc. or, to the extent any Controlled Affiliate of Google Inc. becomes a
party to this Agreement in accordance with the terms hereof, such Controlled Affiliate, and, in
either case, any successor thereto.



     “Governmental Authority” means any transnational, domestic or foreign federal, state or local,
governmental authority, department, court, agency or official, or any entity exercising executive,
legislative judicial, regulatory or administrative functions of or pertaining to government,
including the FCC.



     “Guarantor” means (i) with respect to Brighthouse, Advance/Newhouse Partnership, (ii) with
respect to Comcast, Comcast Cable Communications, LLC, (iii) with respect to TWC, Time Warner Cable
Inc., and (iv) with respect to Google or Intel, to the extent required pursuant to Section 2.4(a),
such Party’s Ultimate Parent, or any of their respective successors.



     “Guaranty” has the meaning specified in Section 7.8(b).



     “iDEN” means the mobile telecommunications technology developed by Motorola, Inc., and
operated by Sprint in the United States within certain 800-900Mhz SMR frequencies.



     “iDEN Network” means the iDEN network owned and operated by Sprint, Sprint’s Controlled
Affiliates and/or certain network affiliates of Sprint and its Controlled Affiliates.



     “Indemnified Party” has the meaning specified in Section 12.3(a).



7









 





     “Indemnifying Party” has the meaning specified in Section 12.3(a).



     “Independent Auditor” has the meaning specified in Section 7.10.



     “Initial Network Enablers” has the meaning specified in Section 2.2.2(a).



     “Initial Standard Network Services” has the meaning specified in Section 2.2.2(a).



     “Initial Term” has the meaning specified in Section 3(a).



     “Intel” means Intel Corporation or, to the extent any Controlled Affiliate of Intel
Corporation becomes a party to this Agreement in accordance with the terms hereof, such Controlled
Affiliate, and, in either case, any successor thereto.



     “Intel Commercial Agreement” has the meaning specified in Section 2.4(a).



     “Intel Election Provisions” has the meaning specified in Section 2.4(a).



     “Intellectual Property” means any and all (by whatever term known or designated) tangible and
intangible, now known or hereafter existing (a) rights associated with works of authorship
throughout the universe, including all exploitation rights, copyrights, neighboring rights and
moral rights (including the right to display, publicly perform, reproduce, transmit, distribute and
create derivative works), (b) trademark and trade name rights and similar rights (including service
marks, trade dress, Internet domain names and all related goodwill appurtenant thereto), (c) trade
secret rights, (d) patents (including the rights to make, use, sell, have made, have sold, import
and have imported and all shop rights related thereto), designs, algorithms, circuit layouts, mask
works and other industrial property rights, (e) all other proprietary rights of every kind and
nature throughout the universe, however designated (including logos, character rights, rights of
publicity, “rental” rights and rights to remuneration), whether arising by operation of law,
contract, license or otherwise, and (f) all registrations, applications, renewals, extensions,
continuations, divisions or reissues of any of the foregoing now or hereafter in force throughout
the universe.



     [*****]



     “Market” means a CMA covered by the NewCo Network in which the Wireless Broadband Service is
made available to the SIG Parties directly by NewCo or by any of its Controlled Affiliates.



     “Migration Commencement Date” has the meaning specified in Section 14.2(c).



     [*****]



     [*****]



     “MSO Core Services” means, with respect to each MSO Party, such MSO Party’s or any of its
Affiliates’ [*****].



     “MSO Divested Business” has the meaning specified in Section 16.1(a).



     “MSO Divestiture Date” has the meaning specified in Section 16.1(a).



     “MSO Party” means each of Comcast, TWC and Brighthouse.



     “MVNO Operations Manual” means the operations manual relating to the sale of the Wireless
Broadband Service to be established by NewCo and as such manual may be developed, amended, modified
and supplemented from time to time in accordance with Section 9.1.



     “MVNO Service” means, with respect to any SIG Party, the Wireless Broadband Service provided
by NewCo or any of its Controlled Affiliates over the NewCo Network, but sold by the SIG Party (or
by a Controlled Affiliate of such SIG Party pursuant to Section 2.7) to end user customers as a
reseller of the Wireless Broadband Service pursuant to this Agreement.



     “Network Enablers” mean the non-transmission elements of the NewCo Network that provide
information and functionality necessary to provide services and applications over the NewCo
Network. For purposes of clarification, Network Enablers include, but are not limited to, the
underlying network



8









 




elements and interfaces such as quality of service, identity information, device management,
multicast media streaming and location services.




     “Network Performance Specifications” has the meaning specified in Section 9.4.2.



     “NewCo” has the meaning specified in the preamble.



     “NewCo Application” has the meaning specified in Section 2.2.4(d).



     “NewCo Client Manager” means the application software that facilitates the connection to the
NewCo Network and the associated landing website that a Customer using a Generic Embedded Device is
first directed to upon opening the web browser on such Generic Embedded Device.



     “NewCo Indemnitee” has the meaning specified in Section 12.1.



     “NewCo Marks” has the meaning specified in Section 11.1.1.



     “NewCo Network” means (i) the WiMAX network deployed, owned or operated by NewCo or any of its
Controlled Affiliates in the United States, and (ii) any other network deployed, owned or operated
by NewCo or any of its Controlled Affiliates in the United States, including any WiFi network or
follow-on OFDMA network, but excluding the current wireless network utilizing Expedience technology
owned and operated by Clearwire US LLC as of the date of this Agreement, except to the extent the
Expedience technology has not been replaced by the WiMAX Network referred to in the preceding
clause (i) in all markets in which the Expedience technology has been launched by December 31,
2011.



     “NewCo Parent” means [NewCo Corporation],2 a Delaware corporation.



     “NewCo Reseller Platform” means the business and operational support systems that will provide
each SIG Party at a minimum with the tools, interfaces and other capabilities specified in Section
6.5 to enable the SIG Parties to manage its End Users and wireless MVNO Services business.



     “NewCo Retail Customers” means NewCo’s Customers, excluding (x) any reseller or (y) any
subscribers of any reseller.



     “NewCo VoIP Service” means the voice over internet protocol service to be developed and
offered by NewCo.



     “NewCo Wholesale Offerings” has the meaning specified in Section 2.2.1(a).



     “Non-Frustrated Party” has the meaning specified in Section 17.16.



     “Non-Standard Network Services” are the Wireless Broadband Services provided by NewCo that are
not Standard Network Services.



     “Non-Standard Network Service Request” has the meaning specified in Section 2.2.3(a).



     “OEM” means an original equipment manufacturer.



     “Offering Party” has the meaning specified in Section 6.3(c).



     “Opt-In Agreement” has the meaning specified in Section 2.4(a).



     [*****].



     “Participation Right” has the meaning specified in Section 6.3(c).



     “Party” means NewCo or any SIG Party.



     “Permitted Bundle” means:



     (a) with respect to each MSO Party, (i) MVNO Service offered as part of a bundle of products
and services that includes [*****];





 




			
	2	 	Prior to execution, appropriate legal name to be
inserted to reference NewCo (as such term is defined in the Transaction
Agreement).




9









 










     (b) with respect to Sprint, (i) MVNO Service offered as part of a bundle of products and
services that includes [*****] or (ii) [*****];



     (c) with respect to Google, MVNO Service offered [*****]; and



     (d) with respect to Intel, MVNO Service offered [*****].



     “Permitted Strategic Transaction” means (a) with respect to any MSO Party, a sale, merger,
consolidation, spin-off, public offering of stock or similar strategic transaction or series of
related transactions resulting in a sale, transfer or change of control of any of (i) such MSO
Party’s Ultimate Parent or any Person that controls such Ultimate Parent or (ii) all or
substantially all of its and its Controlled Affiliates’ cable division or business (or successor or
operational or functional equivalent), (b) with respect to Google, a sale, merger, consolidation,
spin-off, public offering of stock or similar strategic transaction or series of related
transactions resulting in a sale, transfer or change of control of any of (i) Google’s Ultimate
Parent or any Person that controls such Ultimate Parent or (ii) all or substantially all of its and
its Controlled Affiliates’ internet search division or business (or successor or operational or
functional equivalent), (c) with respect to Intel, a sale, merger, consolidation, spin-off, public
offering of stock or similar strategic transaction or series of related transactions resulting in a
sale, transfer or change of control of any of (i) Intel’s Ultimate Parent or any Person that
controls such Ultimate Parent or (ii) all or substantially all of its and its Controlled
Affiliates’ mobility group (or successor or operational or functional equivalent), (d) with respect
to NewCo, a sale, merger, consolidation, spin-off, public offering of stock or similar strategic
transaction or series of related transactions resulting in a sale, transfer or change of control of
any of (i) NewCo’s Ultimate Parent or any Person that controls such Ultimate Parent or (ii) all or
substantially all of its and its Controlled Affiliates’ wireless broadband division or business (or
successor or operational or functional equivalent), and (e) with respect to Sprint, a sale, merger,
consolidation, spin-off, public offering of stock or similar strategic transaction or series of
related transactions resulting in a sale, transfer or change of control of any of (i) Sprint’s
Ultimate Parent or any Person that controls such Ultimate Parent or (ii) all or substantially all
of its and its Controlled Affiliates’ CDMA division or business (or successor or operational or
functional equivalent).



     “Person” means any individual, partnership, limited liability partnership, limited liability
company, corporation, trust, other business association or business entity, estate or other entity.



     “Phase-Out Period” has the meaning set forth in Section 13.6.



     “POPs” means an estimate of the population of a specified geographic area as derived from the
published data from a nationally recognized source of such information (as reasonably selected by
NewCo and agreed to by the other Parties).



     “Pricing Dispute” has the meaning specified in Section 17.8(c).



     “Pricing Related Obligations” has the meaning specified in Section 7.10.



     “Quarterly Roadmap” has the meaning specified in Section 2.2.1(a).



     “Radio Compliance” means radio frequency (RF) compliance with (i) relevant FCC requirements,
including as applicable FCC Part 27, FCC Part 15, and FCC specific absorption requirements, and
(ii) relevant WiMAX specifications.



     “Receiving Party” has the meaning specified in Section 15.1(a).



     “Representatives” has the meaning specified in Section 15.1(b)(i).



     “Reseller Agreement” means an agreement for the purchase of any Wireless Broadband Service on
a wholesale basis and resale of such Wireless Broadband Service, whether as a mobile virtual
network operator or otherwise.



     “Residuals” has the meaning specified in Section 15.2(d).



     “Restricted Entity” means any of the following (including any Controlled Affiliate of the
following and any successor to any of the following or any of their Controlled Affiliates):
[*****].



     “Rules” has the meaning specified in Section 17.8(b).



10









 





     “Sale of License” has the meaning specified in Section 13.4(a).



     “Sale Proposal” has the meaning specified in Section 13.4(b).



     “Service” has the meaning specified in Section Error! Reference source not found..



     “Service Assumption Agreement” has the meaning specified in Section 13.4.



     “Significant Manufacturer” means each of [*****] and any other Person whose Devices account
for more than [*****] of the total number of Devices sold in any 12-month period.



     “SIG Party” means each of Comcast, TWC, Brighthouse and Sprint, and, to the extent Google or
Intel exercises its 4G MVNO Option, Google and/or Intel, as applicable, until such time, in each
case, this Agreement is terminated with respect to such Party and the applicable Phase-Out Period
has expired in accordance with the terms of this Agreement.



     “SIG Party Client Manager” means any connection manager downloaded from the SIG Party by, or
otherwise provided by a SIG Party to, an End User for a Generic Embedded Device.



     “SIG Party Data Content and Applications” has the meaning specified in Section 6.2.2.



     “SIG Party-Defined Devices” means, with respect to any SIG Party, any Device developed by or
on behalf of such SIG Party (for example, aircards and modems, handsets, wireless PDAs and personal
media players) that is capable of operating on the NewCo Network, is purchased by a SIG Party from
OEMs and is sold through such SIG Party’s distribution channels.



     “SIG Party Indemnitee” has the meaning specified in Section 12.2.



     “SIG Party Marks” has the meaning specified in Section 11.1.2.



     “Simple Non-Standard Network Service” has the meaning specified in Section 2.2.3(b)(ii).



     “Specified Percentage” has the meaning set forth in the Equityholders’ Agreement (as such term
is defined in the Transaction Agreement).



     “Sprint” has the meaning specified in the recitals.



     “Sprint Core Services” means a Sprint Wireless Service or a Sprint Wireline Service.



     “Sprint Divested Business” has the meaning specified in Section 16.1(b).



     “Sprint Divestiture Date” has the meaning specified in Section 16.1(b).



     “Sprint Network” means the CDMA network owned and operated by Sprint, Sprint’s Controlled
Affiliates and/or certain network affiliates of Sprint and its Controlled Affiliates.



     “Sprint Wireless Service” means a [*****].



     “Sprint Wireline Service” means, with respect to any Market, any [*****].



     “Standalone Bundling Threshold” has the meaning specified in Section 2.3.2(a).



     “Standalone End User” has the meaning specified in Section 2.3.2(b).



     “Standard Network Services” are the Wireless Broadband Services provided by NewCo to NewCo
Retail Customers that provide voice and data transmission functionality and access (but, for the
avoidance of doubt, excluding any wireless services provided over the Sprint Network).



     “Taxes” means all taxes including federal, state, local or foreign sales, use, excise, gross
receipts, withholding or other taxes, levies, duties, tariffs or other assessments or government
charges of any nature whatsoever imposed by any Taxing Authority on or with respect to the Wireless
Broadband Service, excepting (i) taxes on the net income of NewCo or (ii) taxes levied on real or
personal property. Taxes shall also include penalties, additions to tax, fines or interest.



     “Taxing Authority” means the Internal Revenue Service and any other Federal, state, local or
foreign governmental authority, agency or instrumentality responsible for the administration of any
Taxes.



     “Term” has the meaning specified in Section 3(b).



11









 





     “Third-Party Expert” has the meaning specified in Section 17.8(b).



     “Transfer Intent Notice” has the meaning specified in Section 14.2(c).



     “Transfer Restrictions Termination Fee” has the meaning specified in Section 14.2(c).



     “Transaction Agreement” means the Transaction Agreement and Plan of Merger dated as of May 7,
2008 among Clearwire Corporation, Sprint Nextel Corporation, Comcast Corporation, Time Warner Cable
Inc., Advance/Newhouse Partnership, Google Inc. and Intel Corporation, as amended, modified or
supplemented from time to time.



     “Transition Assistance” has the meaning specified in Section 13.7.



     “TWC” has the meaning specified in the preamble.



     “Ultimate Parent” means, with respect to any Person at any time, the Person (other than any
natural person or any trust or other investment vehicle established primarily for the benefit of
any natural person) that directly or indirectly controls such Person and all other Persons with a
direct or indirect controlling interest in such Person, which, on the Effective Date, (i) in the
case of Brighthouse is Advance/Newhouse Partnership, (ii) in the case of Comcast is Comcast
Corporation, (iii) in the case of TWC is Time Warner Cable Inc., (iv) in the case of Sprint is
Sprint Nextel Corporation, (v) in the case of NewCo is NewCo Parent, (vi) in the case of Google is
Google Inc. and (vii) in the case of Intel is Intel Corporation (it being understood that if a
publicly traded corporation or other entity directly or indirectly controls any Person, such
publicly traded corporation or other entity shall be deemed to be the Ultimate Parent of such
Person regardless of whether any other Person may have a direct or indirect controlling interest in
such publicly traded corporation or other entity).



     “USF” has the meaning specified in Section 7.7.1.2.



     [*****]



     “VM” has the meaning specified in Section 2.3.5(b).



     “VM Obligation” has the meaning specified in Section 2.3.5(b).



     [*****]



     “WiMAX” means the IEEE 802.16e-2005 Wave 2 conforming technology standard, including future
evolution thereof (as defined by the WiMAX Forum).



     “WiMAX Forum” means the industry-led, non-profit corporation formed to promote and certify
compatibility and interoperability of broadband wireless products utilizing industry standard, IEEE
802.16.



     “Wireless Broadband Service” means any service technically capable of being provided over the
NewCo Network and to be provided by NewCo or any of its Controlled Affiliates under this Agreement,
including any service utilizing a Network Enabler, but excluding any service that is not within or
reasonably related to NewCo’s commercial offerings and not provided to any Other Reseller; provided
that Wireless Broadband Service shall not include any applications or content offered by NewCo, its
Controlled Affiliates or third parties over the NewCo Network or any service that NewCo may not
provide over the NewCo Network under Applicable Law.



     “Wireless Data Card” means a wireless PC card that has been certified to operate on the NewCo
Network.



     “Wireless PDA” means a handheld device that combines computing, Internet, and networking
features, serves as a personal organizer, and supports Wireless Broadband Service.



     2. SIG Party Relationship




          2.1 General



Under and as more fully described in this Agreement, NewCo will provide and sell the Wireless
Broadband Service to each SIG Party. NewCo hereby authorizes each SIG Party and its Controlled



12









 






Affiliates to market the Wireless Broadband Service as its MVNO Service as more fully described in
this Agreement.




          2.2 Services Provided




               2.2.1 Roadmap




     (a) Within 30 days after the end of each calendar quarter during the Term (excluding any
Phase-Out Period), NewCo will provide each SIG Party with a rolling 36-month roadmap (each, a
“Quarterly Roadmap”) of NewCo’s plans for (x) development and roll-out of new Standard
Network Services, Non-Standard Network Services (including Non-Standard Network Services
requested by any Founding Partner or any Other Reseller) in accordance with Section 2.2.3),
Generic Embedded Devices, application programming interfaces and other new wholesale
interfaces and systems (each, a “NewCo Wholesale Offering” and, collectively, the “NewCo
Wholesale Offerings”), (y) modifications, enhancements and updates to existing NewCo
Wholesale Offerings approved for development by NewCo and (z) the timing and location of new
Market launches or changes to existing Markets.




     (b) The Quarterly Roadmap will include, among other things, the relative timing, status
and progression of development of each NewCo Wholesale Offering and the remaining steps
(including a detailed description of any development or decision gates and timing thereof,
which shall include at a minimum the information set forth on Schedule 2.2.1(b)
attached hereto) required to complete such development, such that each SIG Party (i) can
anticipate upcoming changes and additions to the NewCo Wholesale Offerings; (ii) can
recommend desired features and functionality for inclusion in the NewCo Wholesale Offerings;
and (iii) can make timely requests for Non-Standard Network Services in accordance with the
terms of this Agreement; provided, however, that NewCo may in good faith limit any
information relating to any NewCo Wholesale Offerings otherwise required to be set forth on a
Quarterly Roadmap solely to the extent necessary to comply with its confidentiality
obligations to any third party (it being understood that NewCo shall use its reasonable best
efforts to maximize the information that may be disclosed to the SIG Parties by including
each SIG Party as a permitted recipient in new confidentiality agreements and entering into
amendments to existing confidentiality agreements with third parties to include each SIG
Party as a permitted recipient).




     (c) NewCo shall thereafter, and subject to the proviso set forth in Section 2.2.1(b),
make available to each SIG Party such additional information reasonably requested by such SIG
Party with regard to any NewCo Wholesale Offering, including, to the extent known, the
technical specifications thereof, on a non-discriminatory basis with providing such
information to any other Founding Partner or any of its Controlled Affiliates (and on a no
less favorable basis (as to the SIG Parties) than any Other Reseller).




     (d) The Parties and the other Founding Partners shall establish a discussion vehicle to
review and discuss the Quarterly Roadmap (such vehicle, the “Forum”). During the Term
(including any Phase-Out Period), the Forum shall consist of one representative of each of
the Founding Partners and at least one representative of NewCo. The members of the Forum
shall discuss the matters set forth in the Quarterly Roadmap at each meeting. In addition to
the matters set forth in the Quarterly Roadmap, the members of the Forum shall discuss (i)
new NewCo Wholesale Offerings, (ii) modifications, enhancements and updates to existing NewCo
Wholesale Offerings, (iii) new NewCo Wholesale Offerings requested by any SIG Party in
accordance with this Agreement, and (iv) the timing and location of new Market launches or
changes to existing Markets, in each case that are not set forth in the Quarterly Roadmap.
The members of the Forum may also discuss any other matters requested to be discussed by any
of the Founding Partners. The Forum will meet at least once per quarter in a location and at
a time to be agreed upon by the members of the Forum.



               2.2.2 Development and Offering of Standard Network Services




     (a) The Wireless Broadband Services to be provided under this Agreement will include
Standard Network Services. Schedule 2.2.2 attached hereto sets forth (i) the initial
Standard Network Services to be provided hereunder (the “Initial Standard Network Services”)



13









 






along with the target commercial launch dates associated with such Initial Standard
Network Services and (ii) the underlying Network Enablers required to provide the Initial
Standard Network Services along with the target dates associated with the development of such
Initial Standard Network Services (the “Initial Network Enablers”). NewCo will use its
commercially reasonable efforts to develop each Initial Network Enabler and to make available
each Initial Standard Network Service for sale by the SIG Parties, in each case, by the
applicable target date for such Initial Standard Network Service or Initial Network Enabler,
as the case may be, set forth on Schedule 2.2.2.




     (b) Any Standard Network Services will be provided by NewCo to the SIG Parties as
follows:




	 	(i)	 	During the Term (including any Phase-Out Period), NewCo will
continue to develop and launch new Standard Network Services. If NewCo elects
to offer for sale at retail a Non-Standard Network Service previously requested
by any SIG Party(ies), then such service will thereafter be deemed a Standard
Network Service, subject to the reimbursement of development costs in
accordance with Schedule 7.1. Each Standard Network Service will be
made commercially available to each SIG Party on or before the time such
Standard Network Service is first made commercially available to any Customer
(and at the same time such Standard Network Service is first made commercially
available to any other Founding Partner or any of its Controlled Affiliates) on
terms and pricing established in accordance with the provisions of this
Agreement.
	 
	 	(ii)	 	The Parties will use the Forum to enable each SIG Party to
provide input on the development of Standard Network Services and NewCo agrees
to in good faith take into consideration such input in its development process.
	 
	 	(iii)	 	Each SIG Party will be given non-discriminatory access to each
Standard Network Service and each Network Enabler underlying each Standard
Network Service on an equal priority and quality basis with NewCo, and NewCo
will make available personnel, support, information (both technical and
systems) and testing relating to each such Standard Network Service and Network
Enabler on an equal priority and quality basis with NewCo, such that neither
NewCo nor any Founding Partner will have any informational or process advantage
over any other Person in commercially launching such new Standard Network
Service and/or utilizing such Network Enabler; provided, however, that nothing
in this clause (iii) will preclude the commercial launch or provision of a
Standard Network Service or utilization of a Network Enabler underlying a
Standard Network Service by any Party in advance of any other Party as long as
such Standard Network Service or Network Enabler is made available to each
Party and each other Founding Partner at the same time in accordance with the
terms and provisions of this Agreement.






          2.2.3 Requested Non-Standard Network Services




     (a) One or more SIG Parties may from time to time request in writing that NewCo provide
it with a Non-Standard Network Service (each, a “Non-Standard Network Service Request”). In
the event that any SIG Party elects to make a Non-Standard Network Service Request under this
Section 2.2.3, such SIG Party(ies) will provide NewCo with written notification of such
Non-Standard Network Service Request, which shall set forth (i) the technical prerequisites
and requested design and functionality of such Non-Standard Network Service Request in
reasonable detail and (ii) whether the Non-Standard Network Service requested is a Complex
Non-Standard Network Service or a Simple Non-Standard Network Service (in each case, as
defined below).




     (b) Subject to Section 2.2.3(e) below, as soon as reasonably practicable, but no later
than [*****], in the case of a Simple Non-Standard Network Service, or [*****], in the case
of a Complex Non-Standard Network Service, following receipt of the Non-Standard Network
Service



14









 






Request, NewCo shall deliver to the SIG Party(ies) making such request a written
response setting forth (i) NewCo’s good faith determination of whether the requested Service
is a Simple Non-Standard Network Service or a Complex Non-Standard Network Service; (ii)
direct costs and expenses, if any, associated with any new Network Enabler(s) and/or any
modifications, enhancements or updates to existing Network Enabler(s) required to make such
new Non-Standard Network Service available, (iii) the recurring charge (if any) and other
terms on which NewCo proposes to make such new Non-Standard Network Service available to the
requesting SIG Party(ies), which shall be determined in accordance with Section 7 of this
Agreement, (iv) the expected timeline for the development and launch of the such new
Non-Standard Network Service, and (v) the technical specifications and architecture thereof.
For purposes of this Agreement:




	 	(i)	 	“Complex Non-Standard Network Service” means a Non-Standard
Network Service that is not a Simple Non-Standard Network Service.
	 
	 	(ii)	 	“Simple Non-Standard Network Service” means a Non-Standard
Network Service of a type set forth in Schedule 2.2.3(b) as it may be
amended from time to time in accordance with the terms of this Agreement.






     (c) During the [*****] period, in the case of a Simple Non-Standard Network Service, or
[*****] period, in the case of a Complex Non-Standard Network Service, after the delivery by
NewCo of such written response, NewCo shall provide such additional information related to
such response reasonably requested by the requesting SIG Party(ies) and shall consider in
good faith any changes to such written response reasonably requested by the requesting SIG
Party(ies). At any time prior to the end of such [*****] period or [*****] period, as the
case may be, the requesting SIG Party(ies) shall have the right to (i) elect to proceed with
the Non-Standard Network Service Request on the terms described in NewCo’s written response
(as such response may be modified as described above) upon delivery of written notice thereof
to NewCo, (ii) refer such matter to dispute resolution pursuant to Section 17.7 or (iii)
elect not to proceed with such Non-Standard Network Service Request (it being understood that
the failure by the requesting SIG Party(ies) to either elect to proceed with the Non-Standard
Network Service Request or refer such matter to dispute resolution during such [*****] period
or [*****] period, as the case may be, shall be deemed to constitute an election not to
proceed with such Non-Standard Network Service Request). Upon the election or deemed
election by the requesting SIG Party(ies) not to proceed with the Non-Standard Network
Service Request, NewCo shall have no further obligation to deliver such the Non-Standard
Network Service requested pursuant to this Section 2.2.3.




     (d) If NewCo receives a timely election to proceed from the requesting SIG Party(ies)
for a Non-Standard Network Service Request (or NewCo and the requesting SIG Party(ies)
otherwise agree to proceed with such Non-Standard Network Service Request through the dispute
resolution process or otherwise), NewCo shall use commercially reasonable efforts to make
such Non-Standard Network Service commercially available as soon as reasonably practicable,
but (so long as technically reasonable and except to the extent such delay is caused by any
third party or the SIG Party(ies)) in no event later than:




	 	(i)	 	For any Simple Non-Standard Network Service request, the date
which is [*****] after the receipt of the election to proceed (or, if applicable,
such time that NewCo and the requesting SIG Party(ies) otherwise agree to
proceed with such Non-Standard Network Service Request through the dispute
resolution process or otherwise), it being understood that (A) with respect to
the Simple Non-Standard Network Service category, the Parties understand that
there are gradations of development times associated with developing services
falling within such category, with certain services [*****] requiring less time
than others and (B) the requesting SIG Parties may, with respect to pending
Simple Non-Standard Network Services requests made by the SIG Parties, direct
NewCo as to the appropriate prioritization of such requests so as to expedite
the availability of those requests determined to be of the highest priority by
the SIG Parties among all such pending Simple Non-Standard Network Services
requests made by the SIG Parties; or




15









 












	 	(ii)	 	For any Complex Non-Standard Network Service request, the date
which is 18 months after the receipt of the election to proceed (or, if
applicable, such time that NewCo and the requesting SIG Party(ies) otherwise
agree to proceed with such Non-Standard Network Service Request through the
dispute resolution process or otherwise).






     (e) Notwithstanding anything in this Section 2.2.3 to the contrary, NewCo shall not be
required to [*****].




     (f) If one or more SIG Party(ies) request a Complex Non-Standard Network Service (other
than any Complex Non-Standard Network Service described in clauses (i) or (ii) of Section
2.2.3(e)), [*****].




     (g) Notwithstanding anything to the contrary in this Section 2.2.3 and subject to
Section 2.11:




	 	(i)	 	If any Founding Partner(s) delivers a Non-Standard Network
Service Request or any other request for a Non-Standard Network Service, NewCo
shall promptly thereafter deliver a copy of such request to each SIG Party or
each other SIG Party, as applicable, and NewCo will thereafter deliver a copy of
its written response (or any change thereto) to each SIG Party or each other SIG
Party, as applicable, contemporaneously with the delivery thereof to the
requesting Founding Partner;
	 
	 	(ii)	 	Each SIG Party shall have the right at any time, by delivering
written notice to NewCo, to require that NewCo [*****];
	 
	 	(iii)	 	With respect to each new Non-Standard Network Service made
available to any [*****]; and
	 
	 	(iv)	 	Each SIG Party will be given non-discriminatory access to each
Non-Standard Network Service and each Network Enabler underlying any
Non-Standard Network Service on an equal priority and quality basis with each
other Founding Partner (and on a no less favorable basis (as to the SIG Parties)
than any Other Reseller), and NewCo will make available personnel, support,
information (both technical and systems) and testing relating to each such
Non-Standard Network Service and Network Enabler on an equal priority and
quality basis with each other Founding Partner (and on a no less favorable basis
(as to the SIG Parties) than any Other Reseller).





               2.2.4 Future Network Services; Certain Applications




     (a) NewCo will use commercially reasonable efforts to provide support for [*****] by
[*****], or if such target date is not met, as soon as reasonably practicable thereafter.
Each Party hereto will work to [*****] in accordance with Schedule 2.2.4(a) attached
hereto.




     (b) NewCo will use its commercially reasonable efforts to develop appropriate Network
Enablers [*****] by [*****], or if such target date is not met, as soon as reasonably
practicable thereafter. Each SIG Party will be one of NewCo’s lead partners in testing
[*****], and NewCo will use its commercially reasonable efforts to make available to
participating SIG Parties (in a manner no less favorable than any other lead testing
partners) adequate personnel, support, information, technical and operational specifications
and other resources reasonably determined by NewCo necessary for such SIG Party to test the
capabilities of the [*****].




     (c) NewCo will use its commercially reasonable efforts to support and cooperate with
each SIG Party to integrate the NewCo Network and MVNO Services, to the extent technically
feasible, with such SIG Party’s [*****], as set forth in Schedule 2.2.4(c) attached
hereto.




     (d) With respect to any application developed by NewCo that is to be provided to any
[*****] shall be as mutually agreed between NewCo and the SIG Party, subject to Section 2.11.



16









 





               2.2.5 Roaming


To the extent technically feasible, NewCo shall at all times during the Term (including any
Phase-Out Period) applicable to any SIG Party, make available to End Users of each SIG Party in
connection with NewCo’s Standard Network Service and Non-Standard Network Service offerings all
roaming services that NewCo or any of its Controlled Affiliates has the right to make available to
Customers and/or end user customers of any Founding Partner or any of its Controlled Affiliates or
any Other Reseller.




               2.2.6 Certain Limitations


In no event will NewCo or any of its Controlled Affiliates be liable under the terms of this
Agreement or otherwise for any delay or failure in delivering any Services or establishing a SIG
Party’s ability to use Services under this Section 2.2 to the extent such delay or failure is
directly attributable to a third party’s or a SIG Party’s action, inaction or omission.




          2.3 Limited Purpose; No Disparagement




               2.3.1 Sales and Marketing Restrictions




The Parties acknowledge and agree that each SIG Party is a limited purpose reseller of the
Wireless Broadband Service and that each SIG Party will in good faith structure [*****] a
Permitted Bundle.



               2.3.2 Limitation on Non-Bundled Sales




     (a) Each SIG Party agrees that at no time during the Term (excluding any Phase-Out
Period) applicable with respect to such SIG Party will more than [*****]% (the “Standalone
Bundling Threshold”) of such SIG Party’s total End Users be Standalone End Users.




     (b) For purposes of this Agreement, a “Standalone End User” is an End User of a SIG
Party not purchasing MVNO Service (other than sales made pursuant to an Agency Agreement) on
an account as part of a Permitted Bundle; provided that if an End User of a SIG Party
purchases MVNO Service on an account as part of a Permitted Bundle, and such End User later
cancels all MSO Core Services or Sprint Wireless Services on such account, such End User
shall not be considered to be a Standalone End User.




     (c) Each SIG Party agrees that if the percentage of a SIG Party’s Standalone End Users
exceeds the Standalone Bundling Threshold for [*****].




     (d) NewCo agrees, on behalf of itself and its Controlled Affiliates, that the sole and
exclusive remedy for [*****].



               2.3.3 Certain Understandings




Solely for purposes of this Section 2.3, to the extent that multiple lines of MVNO Service
are purchased on one account from a SIG Party, where the holder of that account is solely
liable for all such lines under that account, (i) the Person named as the account holder on
such account shall be deemed to be the End User of each line of MVNO Service purchased on
such account and (ii) for purposes of Section 2.3.2(a), such Person shall be considered to be
a separate End User for each line of MVNO Service purchased on such account. For example, if
a business purchases on one account from a SIG Party 150 lines of the MVNO Service for its
employees as part of a Permitted Bundle, such business (and not any of the employees using
MVNO Service) would be the End User of all 150 lines of MVNO Service purchased from such SIG
Party and because such business is purchasing MVNO Service as part of a Permitted Bundle,
such business would be counted as 150 separate End Users of such SIG Party, none of which
would be a Standalone End User. Similarly, if a family member purchases on the same account
from a SIG Party five lines of MVNO Service for individual family members as part of a
Permitted Bundle, such family member (and not any other family member) would be the End User
of all five lines of MVNO Service purchased from such SIG Party, and because such family
member is purchasing such MVNO Service as part of a Permitted Bundle, such family member
would be counted as five separate End Users of such SIG Party, none of which would be a
Standalone End User. Conversely, in either case, if the business or family member does not
purchase the MVNO Service as part of a



17









 






Permitted Bundle, such business or family member would be included as 150 or five,
respectively, separate Standalone End Users for purposes of the calculation in Section
2.3.2(a).



               2.3.4 Limitation on [*****]




Each SIG Party agrees that during the Term (excluding any Phase-Out Period) applicable with
respect to such SIG Party, such SIG Party will not [*****].



               2.3.5 Limitation on Reselling




     (a) Except as set forth in Section 2.7, no SIG Party will, directly or indirectly, (i)
enter into any arrangement with any Person granting such Person any rights to purchase MVNO
Service from such SIG Party for resale, or (ii) sell any Wireless Broadband Services to any
other Person for resale or permit any other Person to resell any Wireless Broadband Services;
provided, that a SIG Party may wholesale Wireless Broadband Services to (x) [*****] and (y)
[*****], in each case, for the purposes of such Person reselling the Wireless Broadband
Services to [*****] as part of a Permitted Bundle.




     (b) Notwithstanding the foregoing resale restrictions set forth in Section 2.3.5(a),
Sprint shall have the limited right to resell the Wireless Broadband Service to Virgin Mobile
USA, LLC (“VM”), and solely to the extent necessary, for Sprint to satisfy its obligations
(the “VM Obligation”), as such VM Obligation is in effect on May 7, 2008, set forth in that
certain First Amendment to Amended and Restated PCS Services Agreement by and between Sprint
and VM, dated as of October 16, 2007 (a full and complete copy of which is attached hereto as
Schedule 2.3.5(b)); provided that (x) Sprint shall be responsible for any breach of
this Agreement by VM and (y) any act or omission by VM that would be a breach of this
Agreement if performed by Sprint shall be deemed to be a breach by Sprint of this Agreement.
Sprint agrees (i) that if it amends, modifies or supplements the VM Obligation in a manner
that would specifically expand the VM Obligation without NewCo’s prior written consent (which
may be withheld in NewCo’s sole discretion), the exception to the resale restriction set
forth above will be null, void and of no effect, and (ii) the terms under which Sprint
provides VM the Wireless Broadband Services will be structured in a manner that is consistent
with Section 2.11.1(e), with VM deemed to be an “Other Reseller” for purposes of the
application of such Section.



               2.3.6 Reporting; Audit


NewCo, at its expense, shall have the right during the Term to, upon at least 15 Business Days
prior written notice, inspect and audit at the offices of each SIG Party during normal business
hours all relevant books and records to determine compliance with Section 2.2.3(a) and the amount
of any payments required to be made pursuant to Section 2.3.2(c) (it being understood that such
inspection and audit shall be conducted by an independent third party designated by NewCo and if
such third party is not a “Big 4” accounting firm, then such SIG Party shall have the right to
approve NewCo’s designation of such third party (which approval shall not be unreasonably withheld,
conditioned or delayed)). In no case will the audit rights in this Section 2.3.2 be exercised
prior to the first anniversary of the Effective Date or more frequently than once per calendar
quarter. Any information provided to NewCo under this Section 2.3.2 and any information derived
from, and the process of, such review shall be Confidential Information and subject to the terms of
Section 15. In the event that such audit reveals that (i) [*****], such SIG Party agrees to pay
the reasonable expenses of the independent third party auditor. If any such examination reveals a
discrepancy such that the amount paid by any SIG Party is lower than the amount which should have
been paid by such SIG Party pursuant to Section 2.3.2(c), such SIG Party shall pay the amount of
such discrepancy plus interest on the amount of such discrepancy at the rate of 1% per month from
the date on which such amount should have been paid through the date on which payment is made to
NewCo; provided, however, that in no event shall a SIG Party be required to make any such payment
to the extent that such discrepancy relates to any amount that should have been paid more than 36
months earlier.




               2.3.7 No Disparagement


During the Term (including any Phase-Out Period) applicable to any SIG Party, each of NewCo, on the
one hand, and such SIG Party, on the other hand, agrees that it will not, and will cause its
Controlled




18









 







Affiliates not to, disseminate any advertising, marketing or other communications that compares the
relative prices of the Wireless Broadband Service offered by NewCo or any of its Controlled
Affiliates and the MVNO Service offered by such SIG Party or its Controlled Affiliates by
specifically identifying the other Party by name or by referencing the other Party’s Wireless
Broadband Service or MVNO Service, as the case may be, offerings by brand or trade name.




          2.4 SIG Party Participation





     (a) Each Party hereby acknowledges and agrees that each of Google Inc. and Intel
Corporation have been granted the option (the “4G MVNO Agreement Option”) pursuant to, in the
case of Google Inc., a written agreement in substantially the form set forth in Schedule
2.4(a)(1) or, in the case of Intel Corporation, a written agreement in substantially the
form set forth in Schedule 2.4(a)(2) (each, an “Opt-In Agreement”) pursuant to which
each of Google Inc. and Intel Corporation or any of their respective Controlled Affiliates
shall have the right to become a “Party” to this Agreement, as it may have been amended or
modified after the Effective Date, as a “SIG Party” hereunder upon (i) the execution by
Google Inc., Intel Corporation or any of their respective Controlled Affiliates, as
applicable, of a joinder agreement in substantially the form attached as Schedule
2.4(a)(3) hereto under which Google Inc. or Intel Corporation or any such Controlled
Affiliate, as applicable, will agree to be bound by, and subject to, all of the covenants,
terms and conditions of this Agreement applicable to a “SIG Party” hereunder generally, and
to “Google”, in the case of Google Inc. or its Controlled Affiliate, and to “Intel”, in the
case of Intel Corporation or its Controlled Affiliate, specifically and (ii), to the extent a
Controlled Affiliate of Google Inc. or Intel Corporation, as applicable, will become a party
to this Agreement and NewCo determines reasonably necessary, the Ultimate Parent of such
Controlled Affiliate executes a Guaranty Agreement in substantially the form attached hereto
as Attachment 1 or a letter agreement in substantially the form attached hereto as
Attachment 2. Upon the admission of Google Inc. or Intel Corporation or any such
Controlled Affiliate, as applicable, as a Party hereunder in accordance with the immediately
preceding sentence, such Person, as applicable, shall be entitled to all rights available to,
and subject to all of the obligations imposed on, a SIG Party hereunder generally and on
“Google”, in the case of Google Inc. or its Controlled Affiliate, and on “Intel”, in the case
of Intel Corporation or its Controlled Affiliate, specifically, and the terms of this
Agreement shall otherwise remain unchanged. NewCo hereby agrees that neither it nor any of
its Controlled Affiliates will amend or otherwise modify the terms of the Opt-In Agreement
applicable to Google Inc. or Intel Corporation or, prior to the exercise by Google Inc. or
Intel Corporation or any such Controlled Affiliate, as applicable, of its 4G MVNO Agreement
Option, enter into a Reseller Agreement with Google Inc., Intel Corporation or any of their
respective Controlled Affiliates other than in connection with the exercise of the 4G MVNO
Agreement Option. In addition, NewCo hereby agrees that neither it nor any of its Controlled
Affiliates will amend or otherwise modify the provisions of the Market Development Agreement
dated as of the date hereof (as such agreement may be amended, modified or supplemented from
time to time in accordance with this sentence, the “Intel Commercial Agreement”) between
NewCo and Intel Corporation that specify the terms and conditions of the 4G MVNO Election or
Combined MVNO Election (in each case, as defined in the Intel Commercial Agreement) (the
“Intel Election Provisions”), without the prior written consent of each SIG Party; provided,
that, for the avoidance of doubt, the consent of the SIG Parties shall not be required for
(i) any amendment or modification of any of the other terms and conditions of the Intel
Commercial Agreement other than the Intel Election Provisions, (ii) any agreement by NewCo
and Intel to continue the Intel Commercial Agreement in effect, in whole or in part, modified
or unmodified, following either such election by Intel, or (iii) subject to Section 2.4(b) of
this Agreement, any other agreement or understanding with Intel or any of its Controlled
Affiliates that does not have the effect of amending or modifying the Intel Election
Provisions.




     (b) Each Party acknowledges and agrees that if NewCo or any of its Controlled Affiliates
(w) enters into any other agreement or understanding with any Founding Partner that amends,
modifies or supplements the terms of this Agreement, (x) enters into any other Reseller
Agreement with respect to any other Founding Partner or any of its Controlled Affiliates, (y)
enters into any Agency Agreement with respect to any other Founding Partner or (z) otherwise
amends, modifies or supplements such Founding Partner’s rights or obligations hereunder or
thereunder




19











 






(including changing any pricing, the services to be provided (including the provision of
additional services) or the manner in which services are to be provided, but expressly
excluding the Opt-In Agreements), such Founding Partner (or, if such Founding Partner is not
a Party, NewCo) shall promptly thereafter deliver a notice to each SIG Party (with a copy
thereof to NewCo) then party to this Agreement of the entry into of such agreement or
understanding attaching an execution copy thereof, and each SIG Party shall at any time
thereafter have the right to cause NewCo to enter into an agreement with it on substantially
the same terms and conditions as such agreement or understanding with such other Founding
Partner [*****]; provided that to the extent that NewCo in any manner amends, modifies or
supplements the bundling terms applicable to any Founding Partner (other than pursuant to
Section 2.11) from those set forth in this Agreement with respect to such Founding Partner or
any of its Controlled Affiliates (including by means of entering into a separate Reseller
Agreement with such Founding Partner or any of its Controlled Affiliates), but excluding
provisions permitting sales on a stand-alone basis under an Agency Agreement), each SIG Party
shall have the right to any more favorable bundling terms [*****].




     (c) NewCo hereby agrees that upon any Person becoming a party to this Agreement pursuant
to Section 2.4(a), NewCo shall, promptly following the delivery by such Person of the
applicable joinder agreement in accordance with such section, cause its Ultimate Parent to
enter into a letter agreement with such Person in substantially the form attached hereto as
Attachment 3 hereto.



          2.5 Brand Restrictions





     (a) Each SIG Party will be responsible for the advertising, marketing, promotion,
billing and sales of its MVNO Services. Subject to Section 2.5(b) and except as consented to
in writing by NewCo, each SIG Party shall advertise, market, promote or sell its MVNO Service
only under a brand (i) owned by the SIG Party or any of its Controlled Affiliates or (ii)
licensed by such SIG Party from a third party under a license that gives such SIG Party the
right to use such brand; provided that the subscribers acquired by any SIG Party or any of
its Controlled Affiliates through the use of any brand described in the foregoing clause (ii)
shall be solely such SIG Party’s End Users and such SIG Party shall be solely responsible for
maintaining the customer service and billing relationship with such End Users.
Notwithstanding the foregoing clause (ii), each SIG Party agrees that it will not utilize any
brand (other than any brand owned by Sprint or any of its Controlled Affiliates) associated
with [*****] or any brand associated with serious moral turpitude that would reasonably be
expected to cause material harm to the reputation or goodwill of NewCo if used to brand such
SIG Party’s MVNO Service.




     (b) If mutually agreed by a SIG Party and NewCo, then that SIG Party may use one or more
of NewCo’s brands in connection with its product offerings [*****] Any such use of NewCo’s
brands shall be subject to the terms and conditions of a separate license agreement to be
mutually agreed between NewCo and such SIG Party prior to the commencement of such use.




     (c) No SIG Party shall advertise, market or otherwise publicize or promote its MVNO
Services in any Market before the earlier of [*****].



          2.6 Control of NewCo Network



No provision of this Agreement will be construed as vesting in any SIG Party any control whatsoever
in any facilities or operations of NewCo, including the Facilities, or of any third party providing
services to NewCo in support of this Agreement.




          2.7 Right to Make Available to Controlled Affiliate





     (a) NewCo hereby grants each SIG Party the right, subject to Section 2.3, to make
available the Wireless Broadband Service purchased hereunder to any Controlled Affiliate of
such SIG Party who shall in turn have the right to make available the Wireless Broadband
Service to End Users in accordance with the terms of this Agreement in the same manner and to
the same extent as though such Controlled Affiliate were a SIG Party hereunder; provided that
(i) each SIG Party shall be responsible for any breach of this Agreement by its Controlled
Affiliates, (ii) any act or omission by any SIG Party’s Controlled Affiliate that would be a
breach of this Agreement if



20









 







performed by such SIG Party shall be deemed to be a breach by such SIG Party of this
Agreement and (iii) for each SIG Party, the relationship between NewCo, on the one hand, and
such SIG Party and its Controlled Affiliates, on the other hand, shall be managed through a
single SIG Party interface.




     (b) MVNO Service made available to end user customers by a Controlled Affiliate of a SIG
Party shall be deemed to be sales of MVNO Service by, and such end user customers purchasing
MVNO Service shall be deemed to be End Users of, such SIG Party for all purposes of this
Agreement (including for billing and invoicing purposes and for purposes of determining its
compliance with Section 2.3).



          2.8 Independent Representatives and Agents



Subject the limitations and requirements set forth in Section 2.3, each SIG Party [*****].




          2.9 Unique Characteristics of Relationship



The Parties acknowledge that NewCo has entered this Agreement, or in the case of Google and Intel,
granted the 4G MVNO Agreement Option, in consideration of the collective sales and marketing
capabilities of each SIG Party, the unique characteristics of each SIG Party, their collective
marketplace position and the unique nature of the relationship between NewCo and each SIG Party as
set forth in this Agreement and, in the case of the MSO Parties, the services or support that may
be provided by the SIG Parties as contemplated by Section 2.10.




          2.10 Services Provided to NewCo



NewCo, on the one hand, and each MSO Party, on the other hand, will discuss mutually acceptable
arrangements with respect to NewCo’s access to fiber, tier 1 peering, collocation in facilities,
VoIP services and content from, to the extent applicable, each SIG Party. In addition, NewCo will
discuss mutually acceptable terms on which NewCo will be permitted to advertise on any MSO Party
network.




          2.11 Most Favored Reseller



Subject to the terms of this Section 2.11, each SIG Party is hereby accorded the right to receive
“most favored reseller” terms and conditions from NewCo and its Controlled Affiliates with respect
to the provision by NewCo or any of its Controlled Affiliates of Wireless Broadband Service
hereunder, as described below




               2.11.1 Economic Terms



     (a) For purposes of this Agreement, a “Service” means a Standard Network Service or
Non-Standard Network Service (with the distinction between what constitutes a separate and distinct
Standard Network Service or Non-Standard Network Service determined in accordance with Schedule
7.1), and an “Other Reseller” means any reseller of Wireless Broadband Service in the United
States other than [*****].



     (b) [*****].



     (c) [*****].



     (d) [*****].



     (e) [*****].



               2.11.2 [*****]



     (a) [*****].



     (b) [*****].



               2.11.3 [*****]



     (a) [*****].



     (b) [*****].



21









 





      3. Term




     (a) Subject to the termination rights of the Parties set forth herein, the initial term (the
“Initial Term”) of this Agreement will be for a period beginning with the Effective Date and ending
five years thereafter.



     (b) After expiration of the Initial Term, subject to the termination rights of the SIG Parties
set forth in Section 3(c), at the end of each Term, the Term shall automatically be renewed for
successive five-year periods (“Five-Year Renewal Periods”).



     (c) Any SIG Party, may terminate this Agreement, solely with respect to itself and no other
SIG Party, effective as of the conclusion of the then effective Term, if such SIG Party notifies
NewCo in writing (which notification shall be simultaneously delivered to each other SIG Party then
party to this Agreement) of its intent not to renew its Agreement at least 180 days prior to the
expiration of such then effective Term.



     (d) For the avoidance of doubt, the term “Term” shall be determined on a SIG Party-by-SIG
Party basis and shall mean: (i) with respect to any SIG Party, the Initial Term together with any
the Five-Year Renewal Periods during which such SIG Party remains a party to this Agreement and
(ii) with respect to NewCo, the Initial Term together with the Five-Year Renewal Periods thereafter
until each SIG Party has terminated this Agreement.



     4. Conditions Precedent



As conditions precedent to NewCo’s and its Controlled Affiliates’ obligation to provide and sell
the Wireless Broadband Service under this Agreement to the applicable SIG Party, each of Comcast,
TWC and Brighthouse shall have provided to NewCo the Guaranty by its Guarantor pursuant to Section
7.8, Sprint shall have provided to NewCo a letter agreement in substantially the form attached
hereto as Attachment 2 and, in the case of Google and Intel, Google and Intel (as the case
may be) shall have provided NewCo the Guaranty by its Guarantor or a letter agreement in
substantially the form attached hereto as Attachment 2 by its Ultimate Parent, in accordance with
Section 2.4(a).




     5. Representations and Warranties and Covenants




          5.1 General Warranties



Each SIG Party represents and warrants to NewCo, and NewCo represents and warrants to each SIG
Party, that: (i) it is a legal entity duly organized, validly existing and in good standing under
the laws of its jurisdiction of organization and has all governmental licenses, authorizations,
permits, consents and approvals required to carry on its business as now conducted; (ii) it has the
power and authority to execute and deliver this Agreement and perform its obligations hereunder and
activities contemplated hereby; (iii) it is duly qualified to do business as a foreign entity and
is in good standing in each jurisdiction where such qualification is required, except for those
jurisdictions where the failure to be so qualified would not, individually or in the aggregate,
have a material adverse effect on its ability to fulfill its obligations hereunder; (iv) this
Agreement constitutes a valid and binding obligation of it, enforceable against it in accordance
with its terms (except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer and similar laws of general applicability relating
to or effecting creditors’ rights or by general equity principles); (v) the execution, delivery and
performance of this Agreement by it have been duly authorized by all necessary actions; (vi) the
execution, delivery and performance of this Agreement by it and the consummation by the
transactions contemplated herein will not conflict with, violate or result in a breach of (a) any
Applicable Law, (b) any of the terms, conditions or provisions of its organizational documents or
(c) any material agreement or instrument to which it is or may be bound or to which any of its
material properties, assets or businesses is subject; and (vii) it has not received any currently
effective notice of default under any agreement or instrument that could reasonably be expected to
impair in any material respect its ability to perform under this Agreement.




22









 








          5.2 Compliance with Laws



Each Party will conduct its activities in furtherance of or in connection with this Agreement in
compliance with Applicable Law in all material respects.




          5.3 Litigation



Each Party represents and warrants that there are no actions, suits, proceedings or investigations
pending or, to the knowledge of such Party, threatened against or affecting such Party or any of
its properties, assets or businesses in, before or by any Governmental Authority or any arbitrator,
which could, if adversely determined, reasonably be expected to, individually or in the aggregate,
have a material adverse effect on such Party’s ability to perform its obligations under this
Agreement. NewCo further agrees that, in the event it becomes aware of any pending or threatened
action, suit, proceeding or investigation that would materially affect its ability to perform its
obligations under this Agreement, it will expeditiously inform each SIG Party of the pendency or
threat of such action, suit, proceeding or investigation, the nature thereof and the potential
impact thereof on NewCo’s ability to perform its obligations under this Agreement.




          5.4 NewCo Licenses



NewCo represents and warrants (i) that it has, and will use commercially reasonable efforts to
maintain throughout the Term, all required federal, state and local authorizations or licenses to
offer the Wireless Broadband Service (subject to any renewal requirements and Applicable Law) and
to otherwise perform its obligations under this Agreement; and (ii) that it is, and throughout the
Term will remain, in substantial compliance with all applicable legal and regulatory requirements
under Applicable Law affecting its business or the Wireless Broadband Services except where any
non-compliance would not materially affect NewCo’s ability to perform its obligations under this
Agreement.




      6. Scope of Wireless Broadband Service




          6.1 Wireless Broadband Service



NewCo shall at all times during the Term (including any Phase-Out Period) applicable to any SIG
Party, provide such SIG Party with the Wireless Broadband Service in the coverage area of the NewCo
Network, which as of the date indicated is planned to cover the Markets set forth in Schedule
6.1. NewCo will have no liability of any kind for a failure to meet the Market coverage
area(s) as set forth in Schedule 6.1. If NewCo enters into any agreement or arrangement
pursuant to which NewCo, any Founding Partner or any Other Reseller can resell wireless broadband
services that are the same or substantially similar to the Wireless Broadband Services to their
respective end users (including NewCo Retail Customers) over third-party networks, NewCo shall
secure for each SIG Party the right to resell such wireless broadband services to its End Users
over such third-party networks on the same terms and conditions as made available to NewCo with
respect to NewCo Retail Customers and/or the end users of such Founding Partner or Other Reseller,
as the case may be. For the avoidance of doubt, roaming services and services offered by NewCo
over the Sprint Network shall not be subject to this Section 6.1 (it being understood that NewCo’s
obligations to provide roaming services are separately addressed in Section 2.2.5).




          6.2 Scope of Wireless Broadband Service




               6.2.1 General




     (a) The Wireless Broadband Service is available to Devices certified on the NewCo
Network.




     (b) The Wireless Broadband Service will be of a quality and clarity that is the same as
the services provided by NewCo to Customers utilizing the services in the same geographic
location and under the same operating environment.




     (c) NewCo may, from time to time, implement network volume controls that impact the
throughput of data traffic and that are designed to protect the NewCo Network for all users
of the NewCo Network; provided that any such controls shall be consistently applied across
NewCo’s



23









 







resale and direct operations and shall be applied to the Founding Partners at the same
time and in the same manner as such controls are applied to NewCo Retail Customers (it being
understood that any such controls applied to a Non-Standard Network Service shall be
consistently applied to the closest equivalent Standard Network Service, absent a reasonable
technical justification due to the specific characteristics of such Non-Standard Network
Service); provided, further, that NewCo shall give each SIG Party notice of implementing any
such controls substantially contemporaneously with the notice, if any, provided with respect
to NewCo’s direct operations or given to any Other Reseller.




     (d) Without limiting Section 8.1.2(e) but subject to Sections 8.1 and 8.5, under no
circumstance shall any SIG Party be prohibited from offering Devices certified on the NewCo
Network that are capable of operating on multiple wireless networks or that are compatible
with other wireless services.



               6.2.2 Data Content and Applications


Each SIG Party is responsible for negotiating and implementing its own Content and applications for
use with its MVNO Service (“SIG Party Data Content and Applications”) as described in this
Agreement. The following additional terms also apply:





     (a) Unless otherwise agreed between a SIG Party and NewCo, SIG Party Data Content and
Applications will not reside on the NewCo Network;




     (b) Each SIG Party will be solely responsible for obtaining the SIG Party Data Content
and Applications; and




     (c) NewCo is not responsible to any SIG Party or any End Users for any Content that End
Users may access through any data services provided under this Agreement, including
information, opinions, advice, statements or services that are provided by any SIG Party or
other Persons (other than NewCo or any of its Controlled Affiliates), or any damages
resulting therefrom. NewCo does not guarantee the accuracy, completeness or usefulness of
information that is obtained through SIG Party Data Content and Applications. NewCo makes no
representations or warranties regarding the provider, scope or nature of the SIG Party Data
Content and Applications that will be available by default to the End User. The inclusion of
any Content in the default settings on the End User’s Device is not an endorsement or an
acceptance of any liability with respect to the Content.



          6.3 Device Handling Services





     (a) Subject to Section 8.1, each SIG Party will be responsible for making its own
arrangements to purchase SIG Party-Defined Devices from manufacturers or Device fulfillment
vendors of its choosing (it being understood that with respect to any Device fulfillment
vendor that is not already an authorized manufacturer or fulfillment vendor on the NewCo
Network, such Device fulfillment vendor shall be required to comply with all NewCo policies
then in effect with respect to the authorization of manufacturers or fulfillment vendors on
the NewCo Network, provided that such policies are consistently applied across NewCo’s resale
and direct operations).




     (b) Each Party agrees to use commercially reasonable efforts to assist each other Party
in obtaining purchase terms (including by means of aggregating NewCo’s and the SIG Parties’
volumes for Devices offered by NewCo and such SIG Parties) from Device manufacturers that are
more advantageous than such Party could secure acting alone.




     (c) Until [*****] of the Effective Date, each Party agrees that neither it nor any of
its Controlled Affiliates has entered into, or following the Effective Date will enter into,
one or more agreements or other arrangements with any OEM or other device manufacturer that
would grant such Party and/or one or more of its Controlled Affiliates either (i) the
exclusive right to offer any individual Device for a period of [*****] at any time after the
Effective Date or (ii) the right to [*****] on an exclusive basis at any time after the
Effective date, unless, [*****]. Each Party further agrees that neither it nor any of its
Controlled Affiliates has entered into, or following the Effective Date will at any time
enter into, one or more agreements or other arrangements that would give such Party



24









 







the exclusive right to [*****], unless each other Party is expressly excluded from such
exclusivity restrictions.




     (d) NewCo may, from time to time and pursuant to mutual agreement of the Parties
involved, offer to each SIG Party handling and logistics services, subject to mutual
agreement by such SIG Party and NewCo on commercially reasonable terms to pay for those
services.




     (e) Each SIG Party will be responsible for making its own arrangements to purchase
accessories from manufacturers and arrange for delivery of those accessories. NewCo will not
provide any handling or logistics services with respect to accessories.




     (f) From and after the Effective Date, NewCo shall not, and shall cause its Controlled
Affiliates not to, enter into any agreement that would prevent any third party retailer,
marketing partner, distributor or authorized sales representative from selling, marketing or
otherwise distributing the Wireless Broadband Service offered by any SIG Party or any of its
Controlled Affiliates to any Person or in any area, as an agent of such SIG Party or any of
its Controlled Affiliates, in accordance with the terms of this Agreement.



          6.4 Coverage Maps and Coverage Data





     (a) Without limiting clause (b) below or Schedule 6.5, NewCo will make coverage
maps, coverage tools and raw coverage data available to each SIG Party in the same form as
NewCo provides to its Customers or otherwise uses in its direct retail operations.




     (b) NewCo shall, in time frames specified in Schedule 6.5, make available to
such SIG Party feeds of coverage maps and data (e.g., MapInfo data (or equivalent)) that, at
a minimum, shall be of sufficient detail for such SIG Party to:




	 	(i)	 	perform serviceability checks and ascertain service levels on the
basis of address and latitude/longitude information;
	 
	 	(ii)	 	produce high-resolution, unbranded coverage map images that can
be used for marketing purposes; and
	 
	 	(iii)	 	create an interactive map platform accessible by End Users of
such SIG Party, representatives, potential subscribers and other persons via the
world-wide web that would show, at a minimum, the coverage of services and
signal levels by address.






     (c) NewCo shall update the coverage maps and data made available to the SIG Parties
contemporaneously with the time that updates to such information are provided to Other
Resellers, any other Founding Partner or NewCo’s retail operations. At no time will the
coverage maps and data made available to any SIG Party be materially different from the
coverage maps and data produced by NewCo in connection with its retail operations or made
available to NewCo Retail Customers.




     (d) NewCo will provide such maps, tools and other coverage data using predictive
modeling and mapping techniques commonly used in the wireless service industry to depict, in
a commercially reasonable manner, approximate outdoor coverage under normal operating
conditions on the NewCo Network. Wireless Broadband Service may not be available in all
areas shown on the coverage maps due to a variety of factors, including relocation or
modification of Facilities, environmental or topographical conditions, such as building
configuration, or unexpected capacity demands. The maps will not reflect temporary coverage
changes or coverage gaps.



          6.5 MVNO Operational Support





     (a) NewCo will provide the SIG Party with operational support that enables the SIG Party
to monitor, provision, troubleshoot, care for and bill its subscribers for Wireless Broadband
Service on the NewCo network. At a minimum, such operational support will include the
functions and elements set forth in Schedule 6.5. Each SIG Party will receive any
interfaces/tools or operational support made available by NewCo to any Other Reseller which
may include, as an



25









 







example: a resale portal, trouble ticketing systems, geographic tools, the provisioning
APIs, usage feeds, and other provisioning and support tools.




     (b) NewCo shall use commercially reasonable efforts to cause the NewCo Reseller Platform
to be available for testing by each SIG Party and its Controlled Affiliates no later than 90
days prior to the date that Wireless Broadband Service is commercially launched in any
Market.




     (c) To the extent it is technically feasible, NewCo will electronically provide near
real-time usage records through its resale platform to each SIG Party with respect to its End
Users to enable such SIG Party to bill its customers and manage its business.




     (d) NewCo will provide each SIG Party customer usage and other data, to the extent NewCo
has access to such information, as reasonably required to enable the Member to manage its
business, subject to compliance with all applicable laws and regulations (including, but not
limited to, CPNI).



          6.6 Provisioning



Without limiting Schedule 6.5, NewCo shall provide a machine-to-machine interface and a
single GUI for use by all SIG Parties to provision its End User services.




     
7. Prices and Terms of Payment




          7.1 Prices



The price and other price related terms on which NewCo will make each Standard Network Service and
Non-Standard Network Service available to each SIG Party will be determined pursuant to
Schedule 7.1.




          7.2 [*****] Pricing




          The pricing associated with usage by [*****] on the NewCo Network shall be governed by provisions
of Schedule 7.2.




          7.3 Payment of Charges



Each SIG Party will pay NewCo for all charges associated with its usage and other charges under
this Agreement. Disputed charges are governed by the procedures set forth in Section 7.6. All
charges under this Agreement are stated in US dollars.




          7.4 Invoices



NewCo will provide each SIG Party with a separate invoice associated with its usage and other
charges, together will all related billing data and other mutually agreed upon billing records
required for such SIG Party to provide an accurate and timely bill to their its End Users on a
monthly basis. Each SIG Party expressly acknowledges that some charges incurred in a billing
cycle may not appear on the invoice or the billing data (or other mutually agreed upon billing
record) for that billing cycle and that those charges may appear on subsequent invoices or billing
data (or other mutually agreed upon billing records); provided, that, no SIG Party will be
obligated to pay for any invoiced charge related to the provision of service that first appears on
an invoice (excluding invoices relating to the compensation to be paid by a SIG Party to NewCo for
the development of a Non-Standard Network Service in accordance with Section 2.2.3) for such SIG
Party more than [*****] after such charge has been incurred. Payment for each invoice is due by
wire transfer or automated clearing house (ACH) transfer within [*****] of the date of receipt of
such invoice (the “Due Date”), subject to the right of a SIG Party to withhold payment with respect
to disputed amounts pursuant to Section 7.6. An invoice will be deemed paid when NewCo receives
payment at the location designated by NewCo in such invoice. In its sole discretion, NewCo may
modify, change or update the invoice content and format of any invoice provided to any SIG Party
with [*****] prior written notice to such SIG Party; provided that, no material change to the
invoice content may be made without such SIG Party’s prior written consent, which will not be
unreasonably withheld, conditioned or delayed.




26









 








          7.5 Late Payments



Any amount invoiced by NewCo and not paid by any SIG Party when due pursuant to Section 7.4, other
than amounts disputed pursuant to Section 7.6, shall accrue a late payment charge of [*****] (or,
if less, the maximum amount allowable under Applicable Law), on a pro rata basis for each day late.
The applicable late payment interest rate will be applied each day after the Due Date solely with
respect to the outstanding and undisputed delinquent amount as of such day.




          7.6 Disputed Charges




               7.6.1 General


Any SIG Party may withhold payment of the disputed portion of any invoice and may dispute an amount
previously paid until the dispute is resolved under this Section 7.6, provided that each SIG Party
agrees not to dispute any amount on any invoice unless such amount together with all other amounts
being disputed on such invoice equals or exceeds [*****]. Each SIG Party shall timely pay the
undisputed portion of any invoice as provided in Section 7.4.




               7.6.2 Dispute Periods




     (a) Each SIG Party may provide to NewCo written notice of any disputed charge on or
before the Due Date and withhold payment of such disputed charge. If a SIG Party determines
after paying an invoice that there is a dispute with respect to all or part of the amount
paid, then such SIG Party may provide to NewCo written notice of the disputed charge(s)
within 60 days after the Due Date of the invoice for the disputed amount. Except as provided
in Section 7.6.2(b), if a SIG Party fails to dispute charges within 60 days of the Due Date,
such SIG Party will be deemed to have waived any right to dispute the charges. Any SIG Party
disputing a charge pursuant to this Section 7.6.2(a) must provide a reasonably detailed
explanation of the nature of the dispute within 60 days after the Due Date of the invoice for
the disputed amount. Such SIG Party’s explanation must reasonably detail, if applicable, the
disputed airtime, toll, roaming, taxes and other charges specifically, with an explanation
for each.




     (b) Notwithstanding Section 7.6.2(a), if a dispute arises that a SIG Party could not
reasonably have been expected to discover within the period set forth in Section 7.6.2(a),
such SIG Party shall have the right, for up to 12 months following the expiration of the
period set forth in Section 7.6.2(a), to dispute an amount previously paid upon the discovery
of such dispute by providing to NewCo, within 30 days following its discovery of the dispute,
written notice thereof together with the detailed explanation of the nature of the dispute
required by Section 7.6.2(a) and why the dispute does not fall within the provisions of
Section 7.6.2(a). If such SIG Party fails to dispute charges within the extended period set
forth in this Section 7.6.2(b),it will be deemed to have waived any right to dispute the
charges and such SIG Party may not thereafter dispute such charges.




     (c) Within 30 days of receipt of a detailed explanation of a dispute pursuant to Section
7.6.2(a) or Section 7.6.2(b) from the disputing SIG Party, NewCo will notify such SIG Party
in writing of its good faith determination regarding the disputed charge or charges together
with a reasonably detailed explanation of the basis for its determination, and will credit
such SIG Party’s account, if appropriate, within such 30-day period; provided that if NewCo
fails to notify such SIG Party in writing within such 30-day period of its determination,
NewCo shall be deemed to have agreed with such SIG Party’s explanation of the dispute and
promptly thereafter credit such SIG Party’s account for all of the disputed charges set forth
in its dispute notice to the extent such amounts were previously paid to NewCo and not
withheld pursuant to 7.6.2(a). If, after receipt of NewCo’s written determination, such SIG
Party continues to dispute all or a portion of the charges originally set forth in its
dispute notice, such SIG Party shall have the right to submit such dispute to arbitration
pursuant to Section 17.8 (after first submitting such dispute to dispute resolution pursuant
to Section 17.7) for resolution by delivering written notice thereof to NewCo within 30 days
of receipt of NewCo’s written determination. If such SIG Party fails to deliver such written
demand for arbitration pursuant to Section 17.8 within such 30-day period, such SIG Party
shall be deemed to have agreed with NewCo’s determination of the disputed charge or charges
and shall be required to pay in accordance with Section 7.6.2(d) below any amount determined
to be due



27









 







and owing to NewCo that was previously withheld (it being understood that if such SIG
Party delivers a written demand for arbitration for only a portion of the amount remaining in
dispute, such SIG Party shall be deemed to have agreed with NewCo’s determination of such
portion of such amount not submitted to arbitration and shall be required to pay in
accordance with Section 7.6.2(d) below any portion of such amount not submitted to
arbitration that is determined to be due and owing to NewCo and was previously withheld). No
SIG Party may withhold any amounts from current period payments for disputes from any
subsequent payment under Section 3.




     (d) Upon resolution of any dispute in accordance with Section 7.6.2(a), any disputed and
withheld amount that is determined to be due and owing shall be due and payable within 30
days following resolution of the dispute in accordance with the payment procedures described
in Section 7.4.




     (e) Nothing in this Section 7.6 prohibits any SIG Party from informing NewCo of any
suspected billing errors on any invoice.



          7.7 Taxes and Other Levies by Taxing and Governmental Authorities




                    7.7.1.1 Taxes


All payments to NewCo are exclusive of any Taxes. Each SIG Party will provide to NewCo valid and
complete resale exemption certificates or functional equivalent documents that are acceptable to
the applicable Taxing Authority for the services purchased from NewCo and resold to such SIG
Party’s End Users. Each SIG Party is solely responsible for the computation, billing, and
collection of all applicable Taxes to its End Users of the Wireless Broadband Service purchased
from NewCo and resold as MVNO Service to its End Users. Each SIG Party is solely responsible for
the timely and accurate remittance of those Taxes to the appropriate Taxing Authority. NewCo will
notify each SIG Party of any Tax that NewCo is required by a Taxing Authority to charge to a SIG
Party and which Tax NewCo is required to remit directly to a Taxing Authority. NewCo will invoice
each SIG Party for those Taxes and such SIG Party will pay them to NewCo under Section 7.4 (subject
to such SIG Party’s right to dispute such amounts under the procedures set forth in Section 7.6).
NewCo shall separately state the Tax type (or name) and jurisdiction for any Tax invoiced to a SIG
Party. Each SIG Party will be responsible to NewCo for all Taxes imposed on NewCo where (i) the
Tax was imposed on NewCo by Taxing Authority of a jurisdiction within which such SIG Party is
conducting business under this Agreement, and (ii) the Tax would not have been imposed on NewCo had
such SIG Party been properly registered to do business in that jurisdiction. NewCo is responsible
for any property (or ad valorem) taxes assessed by any Taxing Authority on any real and/or personal
property to which it owns. Each SIG Party is responsible for any property (or ad valorem) tax
assessed by any Taxing Authority on any real and/or personal property to which it owns.




                    7.7.1.2 Other Levies by Governmental Authorities


Each SIG Party is solely responsible for the timely and accurate remittance of other levies by
Governmental Authorities or under Governmental Authorities’ orders (i) on the Wireless Broadband
Service, (ii) mandated to be paid in proportion to receipts from MVNO Service sold by such SIG
Party, or (iii) mandated to be paid in connection with the provision of MVNO Service by such SIG
Party, including Universal Service Fund (“USF”) fees. If any SIG Party claims an exemption, such
SIG Party will provide to NewCo a valid and complete exemption certificate, or functionally
equivalent documents that are acceptable to NewCo and the applicable Governmental Authority. NewCo
will notify each SIG Party of any levy that NewCo is required by a Governmental Authority to charge
to a SIG Party and which levy NewCo is required to remit directly to a Governmental Authority.
NewCo will invoice each SIG Party for those levies and such SIG Party will pay them to NewCo under
Section 7.4 (subject to such SIG Party’s right to dispute such amounts under the procedures set
forth in Section 7.6). NewCo shall separately state the levy type (or name) and jurisdiction for
any levy invoiced to a SIG Party. Each SIG Party will be responsible to NewCo for all levies
imposed on NewCo where (i) the levy was imposed on NewCo by Governmental Authority of a
jurisdiction within which such SIG Party is conducting business under this Agreement, and (ii) the
levy would not have been imposed on NewCo had such SIG Party been properly registered to do
business in that jurisdiction.




28









 








          7.8 SIG Party Liability; Parent Company Guarantees; NewCo Obligations





     (a) Each Party acknowledges and agrees that the obligations of each SIG Party under this
Agreement (including those related to its End Users, charges associated with its usage or
volumes and its MVNO Service) are independent obligations to be performed solely by such SIG
Party. Consequently, NewCo acknowledges and agrees that the obligations of each SIG Party
under this Agreement are several and not joint and that no SIG Party shall be liable for the
breach or failure of any other SIG Party to perform its obligations under this Agreement.




     (b) Contemporaneously with the execution and delivery hereof, (i) each of Comcast, TWC
and Brighthouse has caused its Guarantor to execute and deliver to NewCo a Guaranty Agreement
in substantially the form attached hereto as Attachment 1 (each, a “Guaranty”) to
guaranty its obligations under this Agreement, (ii) Sprint has caused its Ultimate Parent to
execute and deliver to NewCo a letter agreement in substantially the form attached hereto as
Attachment 2 and (iii) NewCo has caused its Ultimate Parent to execute and deliver to
each SIG Party a letter agreement in substantially the form attached hereto as Attachment
3.




     (c) To the extent that the performance by NewCo of any of its obligations hereunder
would require any action by, or assistance from, any Controlled Affiliate of NewCo, NewCo
hereby agrees to cause such Controlled Affiliate to take such action or provide such
assistance.



          7.9 Access





During the Term (including any Phase-Out Period) applicable to any SIG Party, NewCo will, and
will cause its Controlled Affiliates to, upon reasonable notice and no more than once in any
three-month period (i) provide each SIG Party, its employees and other personnel with such
information as is reasonably requested by such SIG Party for the purposes of applying the
pricing guidelines set forth in Schedule 7.1 and making the pricing related
determinations contemplated by Schedule 7.1 (including information relating to the
underlying price components of NewCo’s Standard Network Service offerings) and Schedule
7.2 and (ii) instruct their respective officers, employees and other personnel to
cooperate with each SIG Party and its employees and other authorized representatives in the
review of such information (including affording each SIG Party and its employees and other
personnel a reasonable opportunity to ask questions of, and receive answers from, the
appropriate officers, employees and other personnel of NewCo and its Controlled Affiliates).
The information, access and cooperation contemplated by this Section 7.9 shall be afforded in
such manner as not to interfere unreasonably with the conduct of the business of NewCo or any
of its any of Controlled Affiliates or cause NewCo or any of its Controlled Affiliates to
incur unreasonable expense. Any information provided to any SIG Party under this Section 7.9
and any information derived from, and the process of, such review shall be Confidential
Information and subject to the terms of Section 15.



          7.10 Audit Right





NewCo will provide to each SIG Party, on an annual basis within 90 days of the end of each
calendar year commencing with 2009, a written certification from an officer of NewCo, to the
effect that NewCo is in compliance with the provisions of Section 7.1. The SIG Parties then
party to this Agreement shall have the right at any time during the Term (including any
Phase-Out Period), at the SIG Parties’ sole cost and expense and upon 60 days’ prior written
notice, to cause the examination (during reasonable business hours) of those books and
records of NewCo and its Controlled Affiliates reasonably necessary to determine NewCo’s
compliance with the provisions of Section 7.1 (“Pricing Related Obligations”). Any such
examinations shall be conducted by an independent certified public accounting firm designated
by the SIG Parties then party to the Agreement (it being understood that if such independent
certified public accounting firm is not a “Big 4” accounting firm, then NewCo shall have the
right to approve the SIG Parties’ designation of such independent certified public accounting
firm (which approval shall not be unreasonably withheld, conditioned or delayed))
(hereinafter the “Independent Auditor”). The SIG Parties’ right to perform such an audit
shall be limited to no more than once each for each 12-month period. If, as a result of the
examination performed hereunder, the Independent Auditor determines that NewCo is in
compliance with the Pricing Related Obligations, then the Independent Auditor shall



29









 







provide written notice to the SIG Parties stating only that NewCo is in compliance. If, as a
result of the examination performed hereunder, the Independent Auditor determines that NewCo
has failed to comply with the Pricing Related Obligations, then the Independent Auditor shall
commence good faith discussions with NewCo regarding the provisions at issue. In the event
that after good faith discussions, the Independent Auditor concludes that NewCo is, in fact,
in compliance with the Pricing Related Obligations, then the Independent Auditor shall
provide written notice to the parties stating only that NewCo is in compliance. In the event
that after good faith discussions, the Independent Auditor concludes that NewCo has failed to
comply with the Pricing Related Obligations, then NewCo shall authorize the Independent
Auditor to provide to the SIG Parties only that limited information acquired during the
course of the examination as is necessary, in the Independent Auditor’s reasonable discretion
after consultation with NewCo with respect to the information proposed to be provided, for
the SIG Parties to pursue its claim or claims related to NewCo’s non-compliance with such
Pricing Related Obligations; any information that is not so necessary shall not be disclosed
to the SIG Parties by the Independent Auditor and shall remain strictly confidential. Under
no circumstances, other than the limited circumstances described in the immediately preceding
sentence, shall any information acquired during the course of any examination or obtained
during any discussions with NewCo be disclosed to the SIG Parties by the Independent Auditor.
Any information so disclosed and any information derived from, and the process of, such
review shall be Confidential Information and subject to the terms of Section 15 of the
Agreement. NewCo shall provide reasonable assistance to the Independent Auditor in conducting
an examination pursuant to this Section 7.10. If any such examination reveals a discrepancy
(in total) of greater than [*****] in the amount paid by any SIG Party and the amount which
should have been paid by such SIG Party, NewCo shall pay to such SIG Party an amount equal to
the cost of such examination that such SIG Party paid. If any such examination reveals a
discrepancy in the amount paid by any SIG Party and the amount which should have been paid by
such SIG Party, NewCo shall pay the amount of such discrepancy plus interest on the amount of
such discrepancy at the rate of [*****] from the date on which such amount was paid by or
should have been paid to such SIG Party through the date on which payment is made to NewCo;
provided, however, that in no event shall NewCo be required to make any such payment to the
extent that such discrepancy relates to any amount paid by such SIG Party more than two years
prior to the date such discrepancy was discovered by the Independent Auditor. Nothing in this
Section 7.10. shall be construed as a limitation on any SIG Party’s other rights and
remedies.



      8. SIG Party Rights and Obligations




          8.1 Handsets and Other Mobile Devices




               8.1.1 Embedded Devices and Other Matters




     (a) From the date hereof until the seven-year anniversary of the Effective Date (the
“Exclusivity Period”), (i) NewCo will be the exclusive entity to develop and contract with
OEMs regarding Generic Embedded Devices and (ii) NewCo will also be the exclusive entity to
contract for the embedding of client managers in Generic Embedded Devices; provided, however,
that during the Exclusivity Period, NewCo will commit to work with each SIG Party to embed
WiMAX capability in such Devices of OEMs requested by such SIG Party.




     (b) The NewCo Client Manager will be the default client manager interface for Generic
Embedded Devices. NewCo will provide each SIG Party with [*****]; provided that NewCo shall
as promptly as practicable, upon a SIG Party’s reasonable request with respect to any or all
[*****].




     (c) If an End User of a SIG Party activates a SIG Party’s MVNO Service, such SIG Party [*****].



30









 






     (d) An End User shall have the right to switch among the Parties’ Wireless Broadband or
MVNO Services without penalty (including any cancellation fee) within [*****] of such End
User’s initial activation; provided that such other Party shall [*****].



          8.1.2 Compatibility and Certification





     (a) Each SIG Party will use, and will require its End Users to use, only Devices that
are certified on the NewCo Network. NewCo will apply its certification process to a SIG
Party’s Devices (including, its SIG Party-Defined Devices on a nondiscriminatory basis no
less favorable to such SIG Party than the certification process applied to Devices sold by
any Other Reseller, any other Founding Partner and in NewCo retail locations. In all cases,
NewCo will limit the scope of its certification criteria to radio compliance and
interoperability testing over the NewCo Network.




     (b) Each SIG Party will conduct certification testing for its SIG Party-Defined Devices,
including any upgrades thereto, other than Radio Compliance and interoperability testing,
which will be provided by NewCo. NewCo shall, and shall cause its Controlled Affiliates to,
use commercially reasonable efforts to provide reasonable and customary assistance requested
by each SIG Party in the course of its certification testing (e.g., NewCo Network logs). A
SIG Party will not be required to conduct certification testing, and no Radio Compliance and
interoperability testing will be required to be performed by NewCo, with respect to any NewCo
Device, unless such SIG Party upgrades or customizes such NewCo Device, in which case, the
certification testing described in Section 8.1.2(c) shall be required with respect to such
upgrade or customization.




     (c) Upgrades to a SIG Party’s existing SIG Party-Defined Devices will be subject to the
same level of certification as upgrades to Devices sold in NewCo retail operations with
substantially similar complexity and/or potential impact on the NewCo Network (e.g., an
upgrade to a SIG Party’s existing SIG Party-Defined Device or an upgrade to, or customization
of, a NewCo Device by such SIG Party will only be subject to full end-to-end Device
certification testing (rather than streamlined certification) if a substantially similar
upgrade to (or customization of) such a Device sold in NewCo retail operations would require
such certification); provided that, in all cases, NewCo’s certification of such upgrades or
customization will be limited solely to Radio Compliance testing and interoperability
testing.




     (d) Upon the request of a SIG Party, NewCo and such SIG Party shall reasonably agree on
a mutually acceptable roadmap for the certification of each Device requested to be certified
by such SIG Party (including any SIG Party-Defined Devices or any upgrades to SIG
Party-Defined Devices or NewCo Device), which shall set forth the agreed upon start and end
date for the completion of such certification. NewCo hereby agrees that it will complete the
certification of each Device as soon as reasonably practicable but no later than [*****]
following such agreed upon end date (or with respect to any such agreed upon date that occurs
on or after [*****]), absent any material delays attributable to a third party, including an
OEM. An example of such a delay includes a third party not providing device software and
hardware consistent with NewCo’s commercially reasonable lab entrance criteria by the agreed
upon start date.




     (e) NewCo agrees that it will not decline to certify a Device designed to operate on the
NewCo Network that would otherwise be certified solely because it is capable of also
operating on a mobile telecommunications network other than the NewCo Network or it is
compatible with other wireless services.




     (f) All Devices must comply with all Applicable Law.




     (g) If any Device used by any SIG Party’s End User does not comply with the standards
set forth in this Section 8.1, such SIG Party will use commercially reasonable efforts to
ensure that the Device is not used and, if necessary, terminate the use of such Device on the
NewCo Network.



               8.1.3 No NewCo Responsibility


NewCo will not be responsible to any SIG Party or any SIG Party’s End User for the delivery,
operation or maintenance of any SIG Party’s or any SIG Party’s End User’s Device. Unless otherwise
agreed by any SIG Party and NewCo in writing, NewCo will not be required to make any changes,
modifications or


31









 






additions to its equipment, operations or facilities to accommodate such SIG Party or the Devices
provided by such SIG Party. NewCo will not be responsible for any customer care support for the SIG
Party End Users, but NewCo will act as the interface for the SIG Parties with NewCo’s OEMs and ODMs
with respect to Generic Embedded Devices for life-cycle management issues, such as product alerts,
software/firmware updates, escalated bugs/trouble reports that would naturally go to the OEM/ODM,
end of product life notices, and similar life-cycle management issues.




          8.2 SIG Party Staff



The staff members employed by any SIG Party, or contracted to perform services for such SIG Party
by such SIG Party, are not employees of NewCo.




          8.3 SIG Party Responsibility for End User Services



Except as otherwise set forth in this Agreement, each SIG Party will be responsible for all
services provided to its End Users, such as the MVNO Services and other services it provides, End
User credit verification, billing, collection, customer service, and all support necessary to
provide MVNO Service.




          8.4 The SIG Party’ Responsibility for Fraud



Each SIG Party is responsible for all costs and procedures associated with End User fraud relating
to the MVNO Service sold to its End Users, such as subscription fraud, usage on lost or stolen
Devices that such SIG Party fails to deactivate, or fraud occurring in connection with such SIG
Party’s agents, employees or representatives, such as employee-related theft.




          8.5 Interference



If NewCo or any SIG Party discovers any material interference (as determined by NewCo in a
commercially reasonable manner) with the Facilities, the NewCo Network or the Wireless Broadband
Service that (i) is outside the normal operating condition of the Facilities, the NewCo Network or
the Wireless Broadband Service, (ii) materially impairs the quality of the service provided by
NewCo to its Customers and (iii) is caused by such SIG Party’s agents, employees, representatives
and End Users, the discovering Party will promptly notify the other and such SIG Party will
promptly request that its agent, employee, representative or End User cease the act(s) constituting
such interference. In the case of any such interference caused by a SIG Party or a SIG Party’s End
User, NewCo, concurrent with notice to such SIG Party, may terminate the Wireless Broadband Service
to such End User in the event that the interfering act(s) cause material degradation to the
wireless Broadband Network or otherwise constitute an emergency (in which event NewCo shall provide
notice thereof as soon as reasonable practicable); provided that NewCo shall not terminate the
Wireless Broadband Service to such End User unless the taking of such action is consistent with
NewCo’s prior practices in dealing with Customers of NewCo’s retail operations and end user
customers of Other Resellers or any other Founding Partner engaging in similar conduct and only to
the extent such action is being consistently applied with respect to Customers of NewCo’s retail
operations and end user customers of Other Resellers or any other Founding Partner. In other
instances of interference, NewCo will provide 48 hours notice to a SIG Party prior to terminating
the impacted Service.




          8.6 SIG Party Reports to NewCo



Each SIG Party will provide to NewCo, quarterly, no later than 15 days following the end of the
quarter, on a per Market basis, a rolling 12-month forecast of increases and decreases to its End
Users and usage and call volumes; provided that it is understood that all such forecasts are good
faith estimates only, and no SIG Party shall have any liability to NewCo based thereon.




          8.7 Legal Request Compliance



If a Governmental Authority or private party to a civil action produces to any SIG Party a valid
legal request (for example, a subpoena or court order) relating to End User billing records or End
User information, including End User name, address and credit information, such SIG Party shall
process and respond to such request according to its then-current guidelines and procedures for
legal requests. If such request seeks information not provided by NewCo to such SIG Party in its
normal billing practice, such SIG Party shall promptly contact the designated NewCo representative
for assistance in compliance. If such SIG Party either: (a) fails to provide the End User phone
records or broadband data records


32









 






sought in such request; (b) fails to provide the End User phone records or broadband data records
sought in such request within the timeframe specified in such request; or (c) fails to promptly
contact the designated NewCo representative for assistance when such request seeks information not
provided by NewCo to such SIG Party in its normal billing practice, and if NewCo is fined by a
court of law as a direct result of any failure described in (a), (b) or (c) above, such SIG Party
will reimburse NewCo for the amount of such fine; provided that where permitted by Applicable Law,
such SIG Party may directly contest such fine at its cost and expense or NewCo shall, to the extent
requested by such SIG Party, contest such fine at such SIG Party’s cost and expense.




          8.8 Electronic Surveillance



If a Governmental Authority or private party to a civil action produces to any SIG Party a valid
legal request (for example, a court order) relating to electronic surveillance of an End User of a
SIG Party, such SIG Party shall process and respond to such request according to its then-current
guidelines and procedures for legal requests and will promptly contact the designated NewCo
representative for technical assistance in performing the electronic surveillance; subject to any
actions such SIG Party may be taking to contest or clarify such request. If such SIG Party either:
(a) fails to provide the End User information as sought in such request; or (b) fails to promptly
contact the NewCo representative designated below for technical assistance in performing the
electronic surveillance, and if NewCo is fined by a court of law as a direct result of any failure
described in (a) or (b) above, such SIG Party will reimburse NewCo for the amount of such fine;
provided that where permitted by Applicable Law, such SIG Party may directly contest such fine at
its cost and expense or NewCo shall, to the extent requested by such SIG Party, contest such fine
at such SIG Party’s cost and expense.




          8.9 Exclusivity, Etc.



Neither NewCo nor any of its Controlled Affiliates has entered into or adopted, or following the
Effective Date will enter into or adopt, any agreement, arrangement, policy or principle that (i)
contains any exclusivity provision that purports to be binding upon any SIG Party or its MVNO
Service, (ii) limits or purports to limit the freedom of any SIG Party to include or exclude from
its MVNO Service or its End Users’ Devices any product, service, application or process (it being
understood that each SIG Party shall have the right to remove, in whole or in part, any such
product, service, application or process from its End Users’ Devices to the extent that any such
product, service application or process is installed on any such Device and NewCo and its
Controlled Affiliates shall provide reasonable assistance to such SIG Party to facilitate such
removal), (iii) requires any SIG Party or any of its End Users to adhere to any procedure or
process to activate an End User’s Device (other than procedure or processes that are reasonably
necessary to activate a device for use on the NewCo Network) or (iv) requires any SIG Party or any
of its Controlled Affiliates to adopt, comply with or otherwise adhere to any practice or policy
with respect to network management services or network openness policies.




      9. NewCo Rights and Obligations




          9.1 Modifications; MVNO Operations Manual





     (a) The Parties acknowledge that an MVNO Operations Manual has not yet been prepared by
NewCo, but will be done so in good faith and in a commercially reasonable manner and as
otherwise required by this Agreement. The Parties will meet to review drafts of the MVNO
Operations Manual (with respect to which NewCo will offer the SIG Parties a reasonable
opportunity to review and comment) and will discuss the commercial reasonableness of it prior
to its initial implementation. NewCo may from time to time modify, amend, change, update or
supplement the NewCo Network, NewCo’s or any of its Controlled Affiliate’s operations,
equipment, software or procedures or the MVNO Operations Manual; provided that with respect
to any modifications, amendments, changes, updates or supplements that would reasonably be
expected to require changes to, updates of or modifications to any SIG Party’s or any of its
End Users’ Devices or other products, accessories, systems or procedures, NewCo shall (i)
provide as much advance notice of the proposed modifications, amendments, changes, updates or
supplements as is reasonably possible under the circumstances, (ii) thereafter and to the
extent necessary, cooperate with such SIG Party in developing and executing a transition plan
to reduce the impact



33









 







of the proposed modifications, amendments, changes, updates or supplements on such SIG
Party and its business, operations and End Users (including considering in good faith
alternative means of accomplishing NewCo’s or any of its Controlled Affiliate’s objectives
that would have less of a burden on such SIG Party and its business, operations and End
Users) and (iii) use commercially reasonable efforts to address the interoperability and
compatibility of such SIG Party’s or its End Users’ Devices or other products, accessories,
systems or procedures in existence immediately prior to such modification, amendment, change,
update or supplement with NewCo’s or any of its Controlled Affiliate’s operations, equipment,
software, procedures, services and infrastructure following such modification, amendment,
change, update or supplement (i.e., backwards compatibility) for a commercially reasonable
period of time. Any such modification, amendment, change, update or supplement to the
Facilities, NewCo’s or any of its Controlled Affiliate’s operations, equipment, software,
procedures or services or the MVNO Operations Manual shall not discriminate against any SIG
Party or its businesses or operations relative to NewCo’s retail operations; provided that in
the case of any modifications, amendments, changes, updates or supplements to the MVNO
Operations Manual, such modifications, amendments, changes, updates or supplements must be
made to the operations manuals of each Other Reseller and each Founding Partner and
consistently applied across NewCo’s resale operations. Subject to NewCo’s compliance with the
foregoing, NewCo will not be liable to any SIG Party or its End Users if such modifications,
amendments, changes, updates or supplements require changes to, updates of or modifications
to such SIG Party’s or its End Users’ Devices or other products, accessories, systems or
procedures.




     (b) Following any modification, amendment, change, update or supplement to the MVNO
Operations Manual in accordance with Section 9.1(a), NewCo will provide an updated MVNO
Operations Manual to each SIG Party. In the event of any conflict between the terms of this
Agreement and the terms of the MVNO Operations Manual, the terms of this Agreement will
control.




     (c) [*****].



          9.2 NewCo Network Fraud Detection and Responsibility



NewCo will apply the same network fraud monitoring procedures used for its or any of its Controlled
Affiliate’s retail operations for the SIG Parties and will promptly notify the SIG Parties
utilizing the same fraud notification measures NewCo uses in its direct retail operations.




          9.3 NewCo’s Reports to the SIG Parties



NewCo will provide to each SIG Party the reports to be specified in the MVNO Operations Manual and
as agreed upon by the Parties.




          9.4 Service Levels; Material Degradation




               9.4.1 Resale Support Systems Service Levels




     (a) NewCo will provide operational support to each SIG Party as described in Section
6.5. Such operational support provided to each SIG Party will no less favorable (as to such
SIG Party) as the operational support provided to any other Founding Partner or any Other
Reseller.




     (b) The Parties shall mutually develop and agree upon service levels and remedies for
the operational support NewCo will provide, which shall at all times meet, at a minimum, the
operational service levels are described in Schedule 6.5. The agreed upon remedies
will be SIG Parties’ sole and exclusive remedies with respect to any failure to meet the
defined operational service levels.



               9.4.2 Network Performance Specifications




     (a) From and after the date hereof until the [*****] of the Effective Date (the
“Committed Performance Date”), NewCo shall, and shall cause its Controlled Affiliates to, use
commercially reasonable efforts to meet the network performance parameters set forth in
Section 2(a) of Schedule 9.4.2(a). NewCo and the SIG Parties shall, no later than
the Committed



34









 







Performance Date, mutually develop and agree upon (i) the minimum network performance
parameters of the NewCo Network to support the Wireless Broadband Service (the “Network
Performance Specifications”) that will be in effect from and after the Committed Performance
Date and (ii) the appropriate remedies available to the SIG Parties for the failure of NewCo
and its Controlled Affiliates to achieve the Network Performance Specifications from and
after the Committed Performance Date (subject, in each case, to updates or modifications
thereof in accordance with this Section 9.4.2(a)); provided that it is understood that the
Network Performance Specifications in effect from and after the Committed Performance Date
shall, at a minimum, meet the specifications set forth in Section 2(b) on Schedule
9.4.2(a); provided, further, that to the extent that NewCo or any of its Controlled
Affiliates enters into any agreement or understanding with any other Person (including any
Founding Partner or any of its Controlled Affiliates) that grants such Person network
performance parameters of the NewCo Network for supporting Wireless Broadband Services and/or
remedies associated with the failure to meet any such network performance parameters that are
more favorable (as to such Person) than the Network Performance Specifications or the
remedies referred to in the foregoing clause (ii) then in effect, as applicable, then NewCo
shall promptly (and in any event within 60 days) notify each SIG Party thereof in writing and
each SIG Party shall have the right (which right must be exercised within 90 days of receipt
of such notice from NewCo) to substitute such more favorable network performance parameters
and/or remedies, as the case may be, for the Network Performance Specifications or such
remedies then in effect, as applicable. From and after the Committed Performance Date, NewCo
and its Controlled Affiliates shall operate the NewCo Network in compliance the Network
Performance Specifications then in effect, and the failure to meet such specifications shall
result in the application of the remedies described in clauses (ii) above then in effect. On
a monthly basis, NewCo will provide a standard report or set of standard reports describing
the performance of the NewCo Network against the Network Performance Specifications then in
effect. Without limiting the foregoing, from and after the determination of the initial
Network Performance Specifications to be effective on the Committed Performance Date, NewCo
shall, in cooperation with the SIG Parties, ensure that the Network Performance
Specifications evolve properly over time to support enhanced services over the NewCo Network
and to keep pace with technological developments, new competitive product offerings and
emerging industry standards.




     (b) Notwithstanding any other provision of this Section 9.4.2, this Section 9.4.2 and
any remedies for failing to achieve the Network Performance Specifications will not apply to,
or in the event of:(1) circumstances caused by acts or omissions outside of NewCo’s control
including acts and omissions by third parties, a SIG Party or any of their respective agents,
representatives, designees or vendors; (2) Force Majeure Events; (3) a SIG Party or a SIG
Party’s failure to materially comply with its obligations as defined in the Agreement; (4)
scheduled standard maintenance windows; or (5) failure or problems caused by any components
outside the NewCo Network or outside of NewCo’s or any of its Controlled Affiliate’s
reasonable control.



          9.5 Certain Information



NewCo shall provide each SIG Party (other than Google) with the same information provided to Google
Inc. (a) pursuant to item 7 of Rider I of the Google Products and Services Agreement to be entered
into on the Effective Date between Google Inc. and NewCo (as such item 7 may be amended, modified,
supplemented or replaced from time to time) or (b) otherwise relating to network status, network
changes (e.g., tower changes), network usage or aggregate end user information, in each case at the
same time such information is provided to Google Inc.




      10. Limitations of Warranties and Liabilities




          10.1 No Warranties



Except as otherwise set forth in this Agreement, no Party makes any warranties, express or implied,
including any implied warranties of merchantability or fitness for a particular purpose. Except as
otherwise set forth in this Agreement, NewCo makes no warranties, express or implied, regarding the
Wireless Broadband Service or, if applicable, any equipment, product or other good


35









 






provided by NewCo. In addition, all implied warranties are disclaimed, including any warranties of
merchantability, fitness for a particular purpose or use. Each SIG Party acknowledges that NewCo
is not, as of the date of the Effective Date, the manufacturer of any equipment or Devices.




          10.2 Limitations on Liability




               10.2.1 Liability Limit


EXCEPT FOR ANY PARTY’S PAYMENT OBLIGATIONS UNDER THIS AGREEMENT, IN NO EVENT SHALL NEWCO’S
CUMULATIVE LIABILITY, ON THE ONE HAND, OR THE SIG PARTIES’ CUMULATIVE LIABILITY, ON THE OTHER HAND,
ARISING FROM OR RELATED TO THIS AGREEMENT EXCEED THE GREATER OF: (1) [*****]; AND (2) AN AMOUNT
EQUAL TO THE TOTAL REVENUE PAID TO NEWCO [*****] DURING THE PERIOD FROM THE EFFECTIVE DATE THROUGH
THE MONTH PRIOR TO THE MONTH IN WHICH DAMAGES ARE SOUGHT.




               10.2.2 Certain Exceptions


NOTWITHSTANDING ANYTHING IN SECTION 10.2.1 TO THE CONTRARY, NOTHING IN SECTION 10.2.1 SHALL, OR IS
INTENDED TO, LIMIT ANY LOSSES OR EXPENSES THAT ARISE OUT OF OR ARE RELATED TO (A) FRAUD, (B)
WILLFUL BREACH OF THIS AGREEMENT, (C) A BREACH OF SECTION 11 (INTELLECTUAL PROPERTY) OR SECTION 15
(CONFIDENTIALITY) OR (D) ANY CLAIM FOR WHICH ANY PARTY HAS AGREED TO INDEMNIFY ANY OTHER PARTY
PURSUANT TO SECTION 12.2, AND NO AMOUNTS PAYABLE IN RESPECT OF THE FOREGOING SHALL COUNT AGAINST
THE AMOUNT SET FORTH IN SECTION 10.2.1.




      11. Intellectual Property




          11.1 Trade Name, Trade Marks and Service Marks




               11.1.1 NewCo’s Rights


As between the Parties, each SIG Party recognizes the right, title and interest of NewCo and its
Controlled Affiliates in and to all service marks, trademarks, and trade names owned and used in
connection with the service and products sold by NewCo and its Controlled Affiliates (“NewCo
Marks”). No SIG Party will engage in any activities or commit any acts, directly or indirectly,
that contest, dispute, or otherwise impair, or that may contest, dispute or otherwise impair the
right, title or interest of NewCo and its Controlled Affiliates therein. Each SIG Party
acknowledges and agrees that nothing in this Agreement grants such SIG Party the right to use and
such SIG Party agrees that it will not use any NewCo Mark or any service mark, trademark, or trade
name that is confusingly similar to or a colorable imitation of any of the NewCo Marks and will not
incorporate the NewCo Marks into any service mark, trademark, trade name or domain name used or
developed by such SIG Party. No SIG Party acquires or claims any right, title or interest in or to
the NewCo Marks through purchase of the Wireless Broadband Service, the provision of MVNO Service
or otherwise. Notwithstanding the foregoing, to clarify its relationship with NewCo, each SIG
Party may use the NewCo Marks with NewCo’s prior written approval. Nothing in this Section 11.1.1
will prevent any SIG Party from contesting or disputing any NewCo Marks that violate the provisions
of Section 11.1.2.




               11.1.2 SIG Party Rights


NewCo recognizes the right, title and interest of each SIG Party and its Controlled Affiliates in
and to all service marks, trademarks, and trade names used in connection with the service and
products sold by such SIG Party and its Controlled Affiliates (“SIG Party Marks”). NewCo will not
engage in any activities or commit any acts, directly or indirectly, that contest, dispute, or
otherwise impair, or that may contest, dispute or otherwise impair the right, title or interest of
any SIG Party and its Controlled Affiliates therein. NewCo acknowledges and agrees that nothing in
this Agreement grants NewCo the right to use and NewCo agrees that it will not use any SIG Party
Mark or any service mark, trademark, or trade name that is confusingly similar to or a colorable
imitation of any of the SIG Party Marks and will not incorporate the SIG Party Marks into service
mark, trademark, trade name or domain name used or developed by NewCo. NewCo does not acquire or
claim any right, title or interest in or to the SIG Party Marks through sale of
the Wireless Broadband Service or products or otherwise. Nothing in this Section 11.1.2 will
prevent NewCo from contesting or disputing any SIG Party Marks that violate the provisions of
Section 11.1.1.




36









 








               11.1.3 Remedies for Violations


The limitations in Section 10.2 do not apply to either Party’s violations of this Section 11.1. If
any Party violates or threatens to violate this Section 11.1, NewCo or the applicable SIG Party, as
the case may be, may exercise any right or remedy under this Agreement and any other right or
remedy that it may have (now or hereafter existing) at law, in equity or under statute. Each Party
agrees that damages for violations of this Section 11.1 may be difficult to ascertain or inadequate
and that if any Party violates or threatens to violate Section 11.1, NewCo or the applicable SIG
Party, as the case may be, may suffer irreparable harm and therefore may seek injunctive relief in
addition to any other right or remedy under this Agreement and any other right or remedy that it
may have (now or hereafter existing) at law, in equity or under statute. The Party that violates
or threatens to violate Section 11.1 will not raise the defense of an adequate remedy at law.




          11.2 Other Intellectual Property




               11.2.1 Limited License


During the Term (including any Phase-Out Period) applicable to any SIG Party, NewCo grants to each
SIG Party a limited, non-exclusive, non-transferable license to use NewCo’s Intellectual Property
only as necessary to provide MVNO Service as contemplated by this Agreement.




               11.2.2 Ownership


Each Party retains all rights, title, and interest to its own Intellectual Property, and unless
expressly stated in this Agreement, nothing is to be construed as a transfer or license of such
rights, title and interest.




      12. Indemnification




          12.1 SIG Party Indemnification



Each SIG Party, severally and not jointly, shall defend, indemnify and hold NewCo and its
Controlled Affiliates and their respective directors, officers, agents and employees (each, a
“NewCo Indemnitee”) harmless from and against all claims, damages, losses, liabilities, costs and
expenses, including reasonable attorney’s fees and court costs, in connection with any action, suit
or proceeding (including any indirect, incidental or consequential damages or lost profits, but
excluding any exemplary or punitive damages except to the extent the same are awarded to a Person
in any judgment with respect to which an Indemnifying Person is obligated to indemnify an
Indemnified Person pursuant to this Section 12) (collectively “Damages”) incurred or suffered by
any NewCo Indemnitee arising out of any Claim against a NewCo Indemnitee by any Person who is not a
Party (or a successor to a Party) to this Agreement and resulting from (a) any breach of such SIG
Party’s obligations, representations or warranties under this Agreement, (b) willful misconduct by
such SIG Party or any of its Controlled Affiliates, (c) negligent acts or omissions by such SIG
Party or any of its Controlled Affiliates in connection with (i) such SIG Party’s performance of
its obligations hereunder or (ii) the provision of MVNO Service by such SIG Party or any of its
Controlled Affiliates hereunder (other than to the extent such Damages have resulted from any acts,
omissions or other matters for which indemnification may be sought by such SIG Party pursuant to
any of clauses (a) through (e) of Section 12.2); (d) any violation of Applicable Law arising from
an act or omission of such SIG Party or any of its Controlled Affiliates with respect to the
provision of MVNO Service by such SIG Party or any of its Controlled Affiliates to its End Users
(other than to the extent such Damages have resulted from any acts, omissions or other matters for
which indemnification may be sought by such SIG Party pursuant to clause (d) or (e) of Section
12.2) or (e) any allegation that any products or services provided by any SIG Party to its End
Users under this Agreement (including any processes in connection therewith) infringes,
misappropriates or otherwise violates any Intellectual Property rights of any Person (other than to
the extent such Damages have resulted from any acts, omissions or other matters for which
indemnification may be sought by such SIG Party pursuant to clause (e) of Section 12.2).




          12.2 NewCo’s Indemnification



NewCo shall defend, indemnify and hold each SIG Party and its Controlled Affiliates and their
respective directors, officers, agents and employees (each, a “SIG Party Indemnitee”) harmless from
and against all


37









 






Damages incurred or suffered by any SIG Party Indemnitee arising out of any Claim
against a SIG Party Indemnitee by any Person who is not a Party (or a successor to a Party) to this
Agreement and resulting from (a) any breach of NewCo’s obligations, representations or warranties
under this Agreement, (b) willful misconduct by NewCo or any of its Controlled Affiliates, (c)
negligent acts or omissions by NewCo or any of its Controlled Affiliates in connection with (i) its
performance of its obligations hereunder or (ii) the provision of Wireless Broadband Service by
NewCo or any of its Controlled Affiliates to SIG Parties (other than to the extent such Damages
have resulted from any acts, omissions or other matters for which indemnification may be sought by
NewCo pursuant to clause (a) through (e) of Section 12.1), (d) any violation of Applicable Law
arising from an act or omission of NewCo or any of its Controlled Affiliates with respect to the
Wireless Broadband Service provided by NewCo or its Controlled Affiliates (other than to the extent
such Damages have resulted from any acts, omissions or other matters for which indemnification may
be sought by NewCo pursuant to clause (d) or (e) of Section 12.1) or (e) any allegation that any
products or services provided by NewCo to any SIG Party under this Agreement (including any content
transmitted or processes used in connection therewith) infringes, misappropriates or otherwise
violates any Intellectual Property rights of any Person (other than to the extent such Damages have
resulted from any acts, omissions or other matters for which indemnification may be sought by NewCo
pursuant to clause (e) of Section 12.2); provided that, for purposes of this clause (e), such
products or services are utilized by such SIG Party or its Controlled Affiliates, representatives
or agents in the manner intended to be utilized pursuant to this Agreement).




          12.3 Indemnification Procedures





     (a) A Party seeking indemnification pursuant to this Agreement (the “Indemnified Party”)
shall give prompt written notice of any claim, or the commencement of any suit, action or
proceeding, in respect of which indemnity may be sought under Section 12.1 or Section 12.2,
as applicable (a “Claim”), to the Party from which indemnification is sought (the
“Indemnifying Party”); provided that the failure of the Indemnified Party to give such notice
shall not relieve the Indemnifying Party of its indemnification obligations under this
Agreement, except to the extent that such failure results in the failure of actual notice and
the Indemnifying Party is materially prejudiced as a result of such failure.




     (b) The Indemnified Party will allow the Indemnifying Party to direct the defense and
settlement of any such Claim, with counsel of the Indemnifying Party’s choosing (provided
such counsel is a nationally recognized law firm), and will provide the Indemnifying Party,
at the Indemnifying Party’s expense, with information and assistance that are reasonably
necessary for the defense and settlement of the claim. The Indemnified Party will have the
right to retain separate counsel and to participate in (but not control) any such action, but
the fees and expenses of such counsel will be at the expense of the Indemnified Party;
provided that the Indemnified Party shall have the right to employ, at the Indemnifying
Party’s expense, one counsel of its choice in each applicable jurisdiction (if more that one
jurisdiction is involved) to represent the Indemnified Party if (i) the retention of counsel
by the Indemnified Party has been authorized in writing by the Indemnifying Party; or (ii)
the Indemnified Party has been advised by its counsel in writing that there is a conflict of
interest between the Indemnifying Party and the Indemnified Party in the conduct of the
defense of the action; provided, further, that if the Indemnifying Party has not in fact
retained counsel to assume the defense of the action within a reasonable time following
receipt of the notice given pursuant to Section 12.3(a), or otherwise fails, in the
reasonable judgment of the Indemnified Party, to otherwise adequately prosecute or pursue
such defense, in each case, within 30 days following written notice of such failure by the
Indemnified Party to the Indemnifying Party, the Indemnified Party may defend such Claim on
behalf of and for the account and risk of the Indemnifying Party.




     (c) An Indemnifying Party will not be liable for any settlement of any Claim effected
without its written consent (which consent will not be unreasonably withheld, delayed, or
conditioned). Without the written consent of the Indemnified Party, an Indemnifying Party
will not consent to the entry of any judgment or enter into any settlement of any Claim that (A)
imposes obligations on the Indemnified Party or any of its Controlled Affiliates other than
the payment of money damages that will be paid by the Indemnifying Party, (B) does not
include as an unconditional term thereof, a complete and unconditional release of each
Indemnified Party



38









 







potentially affected by such Claim, (C) arises from or is part of any criminal action, suit or proceeding or contains a stipulation to or an admission or
acknowledgment of, any liability or wrongdoing (whether in contract or otherwise) on the part
of the Indemnified Party or any of its Controlled Affiliates, or (D) without limiting clause
(A) above, encumbers any of the assets of any Indemnified Party or any of its Controlled
Affiliates or includes any injunctive or equitable relief, including any restriction or
condition that would apply to or materially adversely affect any Indemnified Party or any of
its Controlled Affiliates or the conduct of any of their respective businesses.



      13. Termination and Transition Assistance




          13.1 NewCo Termination Rights





     (a) NewCo has the right to terminate this Agreement in its entirety at any time with
respect to any SIG Party under any of the following circumstances, by giving written notice
to such SIG Party (which notice shall be simultaneously delivered to each other SIG Party
then party to this Agreement):




     (i) such SIG Party fails to make a payment of money when due (other than any payment
that is being disputed in good faith by such SIG Party or on its behalf under Section 7.6
with respect to disputes of amounts due and owing under this Agreement), which failure
continues for more than 30 days after written notice of such failure to pay;




     (ii) such SIG Party commits a material breach of this Agreement, which breach is not
cured by such SIG Party within 30 days after written notice detailing such breach is
provided to such SIG Party; provided, however, that if the breach is of a type that cannot
be cured within the 30 day period or cannot be cured within 30 days because of circumstances
beyond such SIG Party’s control, then the period for cure will be extended if such SIG Party
proceeds with reasonable diligence, but in no event beyond 180 days after written notice;




     (iii) such SIG Party commences the dissolution, liquidation and winding up of its
affairs or otherwise ceases to function as a going concern;




     (iv) such SIG Party admits in writing its inability to pay its debts as they become
due;




     (v) such SIG Party (x) institutes a voluntary proceeding, or becomes the subject of an
involuntary proceeding which involuntary proceeding is not dismissed within 60 days, under
any bankruptcy act, insolvency law or any law for the relief of debtors, (y) has a receiver
appointed to manage its affairs, which appointment is not dismissed, vacated or stayed
within 60 days, or (z) executes a general assignment for the benefit of creditors; and




     (vi) with respect to Intel only (in its capacity as a SIG Party), if NewCo has the
right to terminate the Intel Commercial Agreement under Section 33.1 of the Intel Commercial
Agreement, as a result of the occurrence of an Event of Default (as that term is defined in
the Intel Commercial Agreement) that has not been cured by Intel pursuant to the provisions
of Section 33.1 of the Intel Commercial Agreement.




     (b) For the avoidance of doubt, in instances in which NewCo’s right to terminate this
Agreement under this Section 13.1 arises by reason of the actions of or with respect to a
particular SIG Party, such right shall apply only with respect to that particular SIG Party.



          13.2 SIG Party Termination Rights





     (a) Each SIG Party has the right to terminate this Agreement in its entirety at any time
under any of the following circumstances, by giving written notice to NewCo (which notice
shall be simultaneously delivered to each other SIG Party then party to this Agreement):




     (i) NewCo commits a material breach of this Agreement, which breach is not cured by
NewCo within [*****] after written notice detailing such breach is provided to NewCo;
provided, however, that if the breach is of a type that cannot be cured within the [*****]
period or cannot be cured within [*****] because of circumstances beyond NewCo’s control,
then the period for cure



39









 







will be extended if NewCo proceeds with reasonable diligence, but in no event beyond [*****] after written notice;




     (ii) NewCo commences the dissolution, liquidation and winding up of its affairs or
otherwise ceases to function as a going concern;




     (iii) NewCo admits in writing its inability to pay its debts as they become due;




     (iv) NewCo (x) institutes a voluntary proceeding, or becomes the subject of an
involuntary proceeding which involuntary proceeding is not dismissed within [*****], under
any bankruptcy act, insolvency law or any law for the relief of debtors, (y) has a receiver
appointed to manage its affairs, which appointment is not dismissed, vacated or stayed
within [*****], or (z) executes a general assignment for the benefit of creditors.




     (b) For the avoidance of doubt, if any SIG Party exercises any termination right
pursuant to Section 13.2(a) or 13.3(a), the resulting termination of this Agreement shall be
effective solely with respect to such SIG Party and not any other SIG Party.



          13.3 NewCo Change of Control





     (a) Any SIG Party may terminate this Agreement as to itself if a Change of Control is
consummated, by giving written notice to NewCo during the [*****] period beginning on the
date such Change of Control is consummated. In addition, upon NewCo entering into a
definitive agreement with respect to, or if earlier, the consummation of, any Change of
Control, each SIG Party shall be entitled to the rights and remedies described in Section
13.5. NewCo will give each SIG Party prompt notice of the entering into of the definitive
agreement for, and of the consummation of, any Change of Control.




     (b) The termination rights set forth in subsection (a) above will not apply with respect
to a Change of Control pursuant to which Sprint or any of its Controlled Affiliates is the
surviving entity or otherwise the controlling party.



          13.4 Sale of License or Loss of Market





     (a) NewCo and its Controlled Affiliates may propose to enter into a definitive agreement
for, or otherwise consummate, a sale, transfer, license, lease or other disposition of any
BRS license and/or lease of excess capacity on any EBS or BRS license (each a “Disposed
License”) covering all or any portion of a Market such that NewCo and its Controlled
Affiliates will no longer provide, or have the capability of providing, Wireless Broadband
Services in that Market in a manner consistent with the Wireless Broadband Services then made
available in other Markets (as opposed to a sale, transfer, or other distribution of a
spectrum license which NewCo deems to be excess capacity, or a spectrum license which when
aggregate with all other spectrum licenses held by NewCo does not result in NewCo having the
necessary spectrum to launch or support commercial Wireless Broadband Services in that
Market) (each such transaction, a “Sale of License”). In the event of a Sale of License in a
Market or portion thereof, NewCo shall use its commercially reasonable efforts to cause such
purchaser of such Disposed License to enter into a written agreement with the SIG Parties
then party to this Agreement pursuant to which such purchaser will provide [*****] written
agreement, a “Service Assumption Agreement”).




     (b) In connection with any proposed Sale of License, if a Service Assumption Agreement
is not entered into by the proposed purchaser and the SIG Parties, then, prior to entering
into a definitive agreement with respect to such Sale of License, NewCo shall provide a
written notice, attaching a summary of all of the material terms and conditions of the
proposed Sale of License (“Sale Proposal”), to the SIG Parties then party to this Agreement
offering such Persons the collective right to purchase the Disposed License(s) that are the
subject of such Sale of License on the terms and conditions set forth in the Sale Proposal.
Such SIG Parties (or a subset thereof) may within [*****] of receipt of such notice notify
NewCo in writing that they have elected to purchase such Disposed License(s) and, unless NewCo and such SIG Parties
otherwise mutually agree, purchase such Disposed License(s) on the terms and conditions set
forth in the Sale Proposal; provided that to the extent that such SIG Parties are incapable
of complying with the terms of the Sale Proposal, NewCo shall, upon the request of such SIG
Parties, agree to



40









 







substantially similar terms and conditions with such SIG Parties. If such
SIG Parties (or a subset thereof) elect to purchase such Disposed License(s), NewCo and such
SIG Parties (or a subset thereof) shall as promptly as reasonably practicable, but in no
event later than [*****], after the receipt by NewCo of such election notice enter into a
definitive agreement on the terms described above and, thereafter, consummate such purchase
within [*****] from the date NewCo received such election notice. If (i) the SIG Parties (or
any subset thereof) do not timely elect to purchase such Disposed License(s) within the
[*****] period described above, (ii) the SIG Parties (or any subset thereof) do timely make
such election, but no binding agreement is entered into within the [*****] described above
(except to the extent the delay in entering such binding agreement is due to the acts or
omissions of NewCo or any of its Controlled Affiliates), or (iii) a binding agreement is
entered into within such [*****] period, but the purchase of the Disposed License(s) is not
consummated within the [*****] period described above (except to the extent the delay in such
consummation is due to the acts or omissions of NewCo or any of its Controlled Affiliates),
then NewCo shall have a [*****] period commencing on the earliest of occur of the foregoing
clauses (i), (ii) and (iii) during which it may consummate a Sale of License of such Disposed
License(s) to such proposed purchaser on terms and conditions (including price) which are the
same or more favorable to NewCo than the terms and conditions proposed by NewCo in the notice
referred to in the first sentence of this paragraph (b). The Parties agree that each SIG
Party’s rights pursuant to this Section 13.4(b) shall be assignable at any time by such SIG
Party to any of its Controlled Affiliates.




     (c) In no event shall NewCo enter into a definitive agreement with respect to a Sale of
License (i) with any purchaser as to which a Services Assumption Agreement is not entered
into if such purchaser were to assume, in connection with such Sale of License, NewCo’s
obligations to provide Wireless Broadband Services to any Other Reseller or (ii) with Sprint
or any of its Controlled Affiliates unless a Services Assumption Agreement is entered into.




     (d) If at any time during the Term (including any Phase-Out Period) (i) any BRS or EBS
license held by NewCo or any of its Controlled Affiliates is cancelled, terminated,
rescinded, annulled, revoked, suspended or otherwise limited, and as a result thereof NewCo
is no longer lawfully permitted to provide the Wireless Broadband Services in any Market (or
portion thereof) or (ii) a Sale of License is consummated, then, in connection with any such
event, (A) each SIG Party then a party to this Agreement will be entitled to the same rights,
and subject to the same obligations, available to NewCo or any Other Reseller with respect to
the applicable Market or portion thereof (including any roaming rights granted to NewCo, any
Founding Partner or any Other Reseller in connection with such Sale of a License) and (B) the
restrictions and limitation set forth in Section 14.1 shall terminate in full solely with
respect to those End Users of each SIG Party whose account addresses are located within the
Market or portion thereof to which such event relates.



          13.5 SIG Party Rights and Remedies Upon the Occurrence of Certain Events





     (a) Immediately upon (i) NewCo entering into a definitive agreement with respect to, or
if earlier, the consummation of, a Change of Control pursuant to which NewCo has or will
become an Affiliate of a Restricted Entity or (ii) the termination of this Agreement by any
SIG Party pursuant to Section 13.2(a) or 13.3(a) (it being understood that NewCo shall
provide each SIG Party with prompt notice that such an event has occurred), the restrictions
and limitations set forth in Section 14.1 shall terminate in full without any action being
required on the part of any Party (including any exercise by any SIG Party of any related
termination right hereunder).




     (b) Immediately upon NewCo entering into a definitive agreement with respect to, or if
earlier, the consummation of a Change of Control pursuant to which NewCo has or will become
an Affiliate of a Restricted Entity the restriction and limitation set forth in Section 2.3.7
shall terminate in full with respect to each SIG Party (but not with respect to NewCo).



          13.6 Length of and Duties During the Phase-Out Period





     (a) With respect to any SIG Party, upon the expiration of the Term applicable to such
SIG Party or upon the early termination of this Agreement as to such SIG Party, NewCo shall



41









 







continue to provide the Wireless Broadband Service to such SIG Party for the duration of the
applicable phase-out period (each, a “Phase-Out Period”) set forth below:




	 	(i)	 	upon expiration of the Term, the Phase-Out Period will be [*****]
after the expiration date;
	 
	 	(ii)	 	the Phase-Out Period for termination under Section 13.1(a)(i) is
[*****] after the date of the notice of termination;
	 
	 	(iii)	 	the Phase-Out Period for termination under Section 13.1(a)(ii),
13.1(a)(iii), 13.1(a)(iv), 13.1(a)(v) or 13.1(a)(vi) is [*****] after the date
of the notice of termination;
	 
	 	(iv)	 	the Phase-Out Period for termination under Section 13.2(a) or
13.3(a) is [*****] after the date of the notice of termination;
	 
	 	(v)	 	the Phase-Out Period for termination under Section 17.16 is
[*****] after the date of the notice of termination; provided that if NewCo is
the Frustrated Party and the Force Majeure Event interferes with NewCo’s ability
to perform the Transition Assistance during the pendency of the Phase-Out
Period, the Phase-Out Period shall be extended on a day-for-day basis for each
day for which the Force Majeure Event interferes with NewCo’s ability to perform
the Transition Assistance






     (b) During any Phase-Out Period, the restrictions applicable to each SIG Party pursuant
to Section 14.1(a) will no longer apply.




     (c) During any Phase-Out Period with respect to a SIG Party, such SIG Party will be
permitted to add End Users at any time during the Phase-Out Period, subject to the following
limitations:




	 	(i)	 	if the termination occurred under Section 13.1(a)(i) or
13.1(a)(ii), such SIG Party will not be permitted to add End Users [*****]; and
	 
	 	(ii)	 	if the termination occurred under Section 13.4, such SIG Party
will be permitted to add End Users only until the longer to occur of (i) the
first [*****] of the Phase-Out Period and (ii) such time as NewCo is no longer
permitted to add subscribers, contractually or otherwise.






     (d) During any Phase-Out Period, except as expressly set forth in this Agreement, the
provisions of this Agreement (including the pricing guidelines set forth on Schedule
7.1 hereto) shall continue to apply to the same extent as though this Agreement had not
expired or terminated, except that each SIG Party with respect to which such Phase-Out Period
applies shall cease to have any rights pursuant to Section 2.2.3 (solely with respect to
Complex Non-Standard Network Services) and Section 2.2.4. Except as otherwise provided in
this Agreement, at the end of the Phase-Out Period, NewCo may terminate the Wireless
Broadband Service and the End Users on the NewCo Network without incurring any liability.



          13.7 Effect of Termination



Termination of this Agreement is without prejudice to any other right or remedy of the Parties
under this Agreement. Termination of this Agreement with respect to any Party under any
circumstance does not release such Party from any liability which, at the time of termination, is
owed to any other Party, or which may be owed in respect of any act or omission prior to
termination or from any obligation which is expressly stated to survive the termination. Following
any termination of this Agreement with respect to any SIG Party, such SIG Party will remain
responsible for its obligations to its agents and its End Users.




          13.8 Transition Assistance





     (a) At the request of any SIG Party at any time, including during any Phase-Out Period,
NewCo will use commercially reasonable efforts to assist such SIG Party in the orderly
migration of such SIG Party’s End Users (including in connection with a mass migration) to a
successor provider designated by such SIG Party (the “Transition Assistance”). NewCo and
such SIG Party shall each use its commercially reasonable efforts to effect such transition
as



42









 







efficiently and expeditiously as possible, and, in furtherance thereof, shall agree upon a transition plan that will specify (i) the minimum number of End Users to be ported on a daily
or weekly basis and (ii) adequate procedures (including the making available by NewCo of
adequate personnel, support and other resources) for testing the efficacy of the transition
process with respect to the affected End Users. If NewCo and such SIG Party are unable to
agree upon a transition plan within [*****] of the request of such SIG Party referred to in
the first sentence of this paragraph (a), then the dispute(s) with respect to the transition
plan shall be resolved by arbitration pursuant to Section 17.8 following the submission of
such dispute(s) to dispute resolution pursuant to Section 17.7. The Third-Party Expert
resolving such arbitration will into account all relevant factors, including the capabilities
of NewCo and such SIG Party, the successor provider’s capacity and ability to support the
transition and industry standards and guidelines.




     (b) Each party will bear its own costs associated with the Transition Assistance;
provided that if (i) the applicable Phase-Out Period commences as a result of a termination
of this Agreement by NewCo under Section 13.1(a)(i) or 13.1(a)(ii), the applicable SIG Party
shall be responsible for all reasonable, out-of pocket expenses incurred by NewCo or any of
its Controlled Affiliates in providing the Transition Assistance and (ii) the applicable
Phase-Out Period commences as a result of a termination of this Agreement by a SIG Party
under Section 13.2(a)(i), NewCo shall be responsible for all reasonable, out-of pocket
expenses incurred by such SIG Party or any of its Controlled Affiliates in connection with
the transition of its End Users.



      14. End User Related Obligations and Restrictions




          14.1 Wireless Broadband Service Coverage



In the case of any MSO Party, if at any time during the Term, the Wireless Broadband Service ceases
to cover at least [*****]% of the largest number of cable homes passed of such MSO Party and its
Controlled Affiliates previously covered by the Wireless Broadband Service the restrictions and
limitations set forth in Section 14.2 shall terminate in full without any action being required on
the part of any Party (including any exercise by any SIG Party of any related termination right
hereunder). In the case of any Party, if at any time during the Term, the Wireless Broadband
Service ceases to cover at least [*****]% of the population in the United States previously covered by the
Wireless Broadband Service the restrictions and limitations set forth in Section 14.2 shall
terminate in full without any action being required on the part of any Party (including any
exercise by Google of any related termination right hereunder).




          14.2 SIG Party Restrictions Relating to End User Migration



Each SIG Party agrees that except as otherwise provided in this Agreement, during the Term (but
excluding any Phase-Out Period) applicable to such SIG Party:





     (a) As long as a SIG Party’s total number of End Users purchasing MVNO Services
represent less than the Applicable Percentage of the total number of end user customers on
the NewCo Network (including the End Users of the SIG Parties, NewCo Retail Customers and end
user customers of Other Resellers), such SIG Party shall be free to transfer its End Users to
any non-NewCo Network. The “Applicable Percentage” will mean: [*****].




     (b) During the Term (not including any Phase-Out Period), as long as a SIG Party’s total
End Users represent at least such SIG Party’s Applicable Percentage of the total number of
end user customers on the NewCo Network (including the End Users of the SIG Parties, NewCo
Retail Customers and end user customers of Other Resellers), such SIG Party agrees that:




	 	(i)	 	it will not use any End User Data to direct its marketing or
distribution efforts specifically or intentionally to its End Users (as a
targeted group) for any wireless broadband service over a wireless network that
is not a NewCo Network (a, “Competitive Wireless Service”); provided that, for the avoidance of doubt,
any services offered over the Sprint Network shall not be deemed to be a
Competitive Wireless Service; provided, further, that none of the following
shall constitute a violation of this Section 14.2(b)(i):






	 	(A)	 	[*****];






43











 






	 	(B)	 	[*****]; and
	 
	 	(C)	 	[*****].






	 	(ii)	 	it will not offer to its existing End Users any incentive,
discount, rebate, credit, price reduction or similar benefit with respect to any
Competitive Wireless Service that is not offered to the general public who are
not existing End Users of the relevant SIG Party; provided that such SIG Party
may offer such an incentive, discount, rebate, credit, price reduction or
similar benefit to any End User who [*****]; and
	 
	 	(iii)	 	it will not transfer or otherwise move all or any portion of its
End Users to a wireless network that is not the NewCo Network, if, following
such transfer or move, such End Users would cease to be purchasers of such SIG
Party’s MVNO Service, other than [*****].






     (c) The restrictions described in Section 14.2(b) will terminate with respect to any SIG
Party in their entirety on the [*****] of the date that such SIG Party delivers written
notice of its intent to transfer its End Users (such notice, the “Transfer Intent Notice”),
in whole or in part, to a wireless network that is not a NewCo Network; provided that such
SIG Party shall have the right, at its option, to terminate the restrictions set forth in
Section 14.2(b) applicable to such SIG Party at any time from and after the date set forth in
the Transfer Intent Notice as the initial date on which such SIG Party intends to commence
migrating customers from the NewCo Network (such date, the “Migration Commencement Date”)
upon [*****]:




	 	(i)	 	[*****].
	 
	 	(ii)	 	[*****].
	 
	 	(iii)	 	[*****].
	 
	 	(iv)	 	“Transfer Restrictions Termination Fee”
means, [*****].





     [*****]

          14.3 Use Restrictions



Without limiting Section 15, (i) NewCo agrees not to, and agrees to cause its Controlled Affiliates
and its and their respective Representatives not to, use any End User Data (or any information
derived therefrom) to solicit, advertise, promote or market wireless services to any SIG Party’s
End Users and (ii) each SIG Party agrees not to, and agrees to cause its Controlled Affiliates and
its and their respective Representatives not to, use any Customer Data (or any information derived
therefrom) to solicit, advertise, promote or market wireless services to any Customers.
Notwithstanding Section 15.6 to the contrary, this Section 14.2 shall survive the termination,
cancellation or expiration of this Agreement indefinitely.




          14.4 Relief



The Parties agree that damages for violations of Section 14 may be difficult to ascertain or
inadequate and that if any Party violates or threatens to violate Section 14, the non-breaching
Party may suffer irreparable harm and therefore may seek injunctive relief in addition to any other
right or remedy under this Agreement and any other right or remedy that it may have (now or
hereafter existing) at law, in equity or under statute.




     15. Confidentiality




          15.1 Definition





     (a) “Confidential Information” means: (i) the terms and conditions of this Agreement,
as well as the discussions, negotiations, communications and proposals related to this
Agreement; (ii) Customer Data or End User Data; (iii) all trade secrets, confidential or
proprietary data, software, other similar technical information; and (iv) any and all other
non-public or proprietary information (whether written, visual or oral) of a Party or any of
its Controlled Affiliates (the “Disclosing Party”) which has come into the possession or
knowledge of any other Party (each, a “Receiving Party”) in the course of negotiating,
entering into or performing this



44









 






Agreement, including information relating to: (A) the Disclosing Party’s planned or
existing computer systems and systems architecture, including computer hardware, computer
software, source code, object code, documentation, methods of processing and operational
methods; (B) the Disclosing Party’s sales, profits, pricing, organizational structure and
restructuring, new business initiatives and finances; (C) the Disclosing Party’s services and
products, product designs, and how such products are administered and managed; (D) the
Disclosing Party’s product strategies, interpretations, positions and treatment of any item;
and (E) confidential information of third parties with which the Disclosing Party conducts
business.




     (b) Notwithstanding the foregoing, “Confidential Information” does not include
information or material which:




	 	(i)	 	is in the public domain at the time of disclosure or later
becomes part of the public domain through no fault of the Receiving Party, any
of its Controlled Affiliates or any of their respective officers, directors,
employees, agents or representatives (collectively, “Representatives”);
	 
	 	(ii)	 	is or was known to the Receiving Party, any of its Controlled
Affiliates or any of their respective Representatives on a non-confidential
basis, as evidenced by its contemporaneous written records;
	 
	 	(iii)	 	is or becomes available to the Receiving Party, any of its
Controlled Affiliates or any of their respective Representatives from a Person
other than the Disclosing Party, any of its Controlled Affiliates or any of
their respective Representatives which is not, to the best of the Receiving
Party’s knowledge, subject to any legally binding obligation to keep such
information confidential;
	 
	 	(iv)	 	is at any time independently developed by the Receiving Party,
any of its Controlled Affiliates or any their respective Representatives without
any use of or reference to the Confidential information, as evidenced by its
contemporaneous written records; or
	 
	 	(v)	 	is expressly authorized in writing to be disclosed by the
Disclosing Party.





          15.2 Restrictions





     (a) Each Receiving Party, any of its Controlled Affiliates and any of their respective
Representatives shall keep all of Confidential Information of a Disclosing Party strictly
confidential, and shall not disclose such Information in any manner whatsoever, in whole or
in part, without the prior written consent of such Disclosing Party. Each Receiving Party
shall not use Confidential Information of a Disclosing Party for any purpose other than as
reasonably necessary for the performance of its duties pursuant to this Agreement, without
the prior written consent of such Disclosing Party.




     (b) Notwithstanding the foregoing, a Receiving Party may disclose Confidential
Information of a Disclosing Party:




	 	(i)	 	upon the advice of legal counsel that such disclosure is required
by Applicable Law (including applicable securities law), a court order by a
court of competent jurisdiction, or the rules of any stock exchange or quotation
system on which the Receiving Party’s or any its Controlled Affiliates’ shares
are traded, or by any other Governmental Authority; provided that such Receiving
Party must give the Disclosing Party as much notice thereof as reasonably
practicable and make reasonable efforts to obtain confidential treatment of such
information;
	 
	 	(ii)	 	to its Controlled Affiliates and Representatives who need to know
such Confidential Information in order to carry out the purposes described in
this Agreement; provided that (i) such Receiving Party shall inform, as
applicable, its Controlled Affiliates and Representatives of the confidential
nature of the Confidential Information and (ii) such Receiving Party shall be
responsible for any breach of this Section 15.2 by any of its Controlled
Affiliates or Representatives;




45









 












	 	(iii)	 	in the case of any SIG Party, to Persons engaged in discussions
with such SIG Party and/or any of its Controlled Affiliates regarding the sale,
transfer or other divesture of any Divested Business; provided that such Person
is bound by obligations of confidentiality with respect to such Confidential
Information substantially similar to those contained in this Section 15.2; and
provided, further, that such Receiving Party will disclose only so much of such
Confidential Information to a potential acquiring entity of such Divested
Business as is reasonable in light of the context of the transaction under
consideration;
	 
	 	(iv)	 	in the case of NewCo, to Persons (other than any Restricted
Entity) considering equity investments or the provision of debt to NewCo or
Persons (other than any Restricted Entity) acquiring NewCo, its Ultimate Parent
or any Controlled Affiliates or any portions of the NewCo Network from NewCo,
provided that such Person is bound by obligations of confidentiality with
respect to such Confidential Information substantially similar to those
contained in this Section 15.2; and provided, further, that such Receiving Party
will disclose only so much of such Confidential Information in these
circumstances as is reasonable in light of the context of the transaction under
consideration;
	 
	 	(v)	 	to manufacturers, Device fulfillment vendors or other vendors in
connection with arrangements relating to products or services to be supplied by
such manufacturers or vendors solely to the extent necessary to carry out the
purposes described in this Agreement; provided that such Person is bound by
obligations of confidentiality with respect to the Confidential Information
substantially similar to those contained in this Section 15.2; or
	 
	 	(vi)	 	to enforce any rights or defend any claims hereunder; provided
that such disclosure is relevant to the enforcement of such rights or the
defense of such claims and is only disclosed in formal proceedings (including
any arbitration proceeding) related thereto and provided that such Receiving
Party must give the Disclosing Party as much notice thereof as reasonably
practicable and make reasonable efforts to obtain confidential treatment of such
information.






     (c) In addition, with respect to any Confidential Information received by any SIG Party
from NewCo or any of its Controlled Affiliates, such SIG Party may disclose such Confidential
Information to any other SIG Party, in which case such other SIG Party shall be deemed to be
a Receiving Party hereunder (and not a Representative of the disclosing SIG Party) with
respect to such Confidential Information and shall be bound by the terms of this Agreement as
if such Confidential Information were received by such other SIG Party directly from NewCo or
any of its Controlled Affiliates.




     (d) Notwithstanding anything in this Section 15 to the contrary, each Party will be free
to use Residuals resulting from access to or work with Confidential Information; provided
that such Party retains the confidentiality of such information as provided in this Section
15. The term “Residuals” means information in an intangible form, that consists of general
knowledge, ideas, concepts, know-how, professional skills, work experience or techniques (but
not specific implementations) that is retained in the unaided memories of Persons who have
had access to the Confidential Information pursuant to the terms of this Agreement, but does
not include customer lists, End User Data, Customer Data, any information on any Quarterly
Roadmaps delivered under this Agreement and information about any other Party’s costs. A
Person’s memory is unaided if the Person has not intentionally memorized the information or
reduced it to a tangible form for the purpose of retaining and subsequently using or
disclosing the information. No Party will be obligated to limit or restrict the assignment
of such Persons or pay royalties for any work resulting from the use of Residuals; provided,
however, that the right to use Residuals as set forth above does not represent a license
under any patents or copyrights of the Disclosing Party.



46









 





          15.3 Return



Confidential Information shall be deemed the property of the Disclosing Party, and each Receiving
Party will, upon receipt of a written request from the Disclosing Party, return all Confidential
Information received in tangible form to the Disclosing Party, or, at the Disclosing Party’s option
and to the extent permitted by Applicable Law, destroy all such Confidential Information and all
copies thereof in any media or documents containing Confidential Information.




          15.4 Care



In furtherance of the provisions of this Section 15, each Receiving Party shall use the same degree
of care to prevent any unauthorized use or disclosure of a Disclosing Party’s Confidential
Information that such Receiving Party uses with respect to its own Confidential Information, but in
no event with less than reasonable care.




          15.5 Relief



Each Receiving Party acknowledges that the disclosure of Confidential Information in breach of the
terms of this Section 15 may cause a Disclosing Party irreparable injury for which monetary damages
may be difficult to ascertain or an inadequate remedy. Therefore, each Receiving Party
acknowledges that a Disclosing Party, upon a disclosure or threatened disclosure of any of its
Confidential Information, will be entitled, in addition to any and all other remedies, to seek
injunctive relief and specific performance.




          15.6 Duration



The provisions of this Section 15 shall bind each Party during the Term (including any Phase-Out
Period) applicable to such Party and for a period of two years thereafter.



          15.7
SEC Filing




If any Party is required by Applicable Law to disclose and file this Agreement with the Securities
and Exchange Commission, it must notify each other Party hereto and allow such Parties to identify
language in this Agreement it deems should be redacted prior to such filing and disclosure. Such
disclosing Party will use its commercially reasonable efforts to redact such portions of this
Agreement that are so identified prior to its disclosure and filing with the Securities and
Exchange Commission.



          15.8
Entire Understanding



The terms of this Section 15 supersede and replace the terms of any confidentiality, non-disclosure
or similar agreements previously entered into between or among the Parties or any of their
respective Controlled Affiliates concerning the confidentiality of the Confidential Information as
it relates to this Agreement or the transactions contemplated hereby; provided that any information
protected as confidential under such agreements shall constitute Confidential Information
hereunder; and provided, further, that this Agreement shall not affect the terms of any other
confidentiality, non-disclosure or similar agreement between or among the Parties or any of their
respective Controlled Affiliates relating to other matters.




     16. Divestitures Acquisitions and Assignment




          16.1 Divested Businesses





     (a) If at any time during the Term (including any Phase-Out Period) applicable to any
MSO Party, such MSO Party and/or any of its Controlled Affiliates sells, transfers or
otherwise divests (other than to a Restricted Entity) an MSO Divested Business (the date of
such sale, transfer or other divestiture, the “MSO Divestiture Date”) in a particular
geographic area (it being understood that such geographic area may be a portion of a Market)
in such a manner that upon the closing such MSO Party would no longer have the ability to
offer MSO Core Services in such geographic area, such MSO Party shall have the right, at its
sole and absolute discretion and notwithstanding anything in Section 2.3.5 to the contrary,
to permit such MSO Divested Business (or the acquirer thereof) to resell the Wireless
Broadband Service to its end users in such geographic area in accordance with the terms of
this Agreement in the same manner and to the



47









 






same extent as though such MSO Divested Business (or the acquirer thereof) were an MSO
Party; provided that (i) such MSO Party shall be responsible for any breach of this Agreement
by such MSO Divested Business (or the acquirer thereof) and (ii) following any material
breach of this Agreement by such MSO Divested Business (or the acquirer thereof), NewCo shall
have the absolute right to terminate this Agreement with respect to such MSO Divested
Business (or the acquirer thereof) in accordance with Section 13.1(a) (with all applicable
notices contemplated by such sections delivered simultaneously to such MSO Divested Business
(or the acquirer thereof) and such MSO Party), as applicable (it being understood that the
divestiture agreement or other applicable agreement between such MSO Party and such MSO
Divested Business (or the acquirer thereof) shall expressly grant NewCo, as a condition to
granting such MSO Divested Business (or the acquirer thereof) the right to resell the
Wireless Broadband Service hereunder, the right to terminate this Agreement with respect to
such MSO Divested Business (or the acquirer thereof) as contemplated by this clause (ii));
provided, however, that (x) any such termination pursuant to the foregoing clause (ii) will
terminate this Agreement solely with respect to such MSO Divested Business (or the acquirer
thereof) and not with respect to such MSO Party and (y) under no circumstance shall a
material breach of this Agreement by such MSO Divested Business (or the acquirer thereof)
give rise to any termination right in favor of NewCo with respect to such MSO Party. A “MSO
Divested Business” means, with respect to any MSO Party, any Controlled Affiliate of such MSO
Party or any business, division, department or group of assets of such MSO Party and/or one
or more of its Controlled Affiliates, which (i), if acting on a standalone business, could
satisfy the requirements for the sale of MVNO Service to End Users pursuant to Section 2.3.1
(i.e., the products and services offered (or reasonably expected to be offered) by such MSO
Divested Business after the MSO Divestiture Date would include at least one MSO Core Service
that could be bundled with MVNO Service) and (ii) as of the MSO Divestiture Date, is either
acquired by a third party or is constituted as a separate legal Person, and as a result
thereof, ceases to be a Controlled Affiliate of, or otherwise controlled by, such MSO Party.
Following the MSO Divestiture Date, the MSO Divested Business’ ability to resell the Wireless
Broadband Service to its end users (i) shall at all times be subject to compliance with
Section 2.3.1, (ii) shall, unless NewCo otherwise agrees in writing, be limited to the
geographic area of such MSO Divested Business as of the MSO Divestiture Date and natural
extensions of such geographic area (i.e., line extensions) and (iii) the right of the MSO
Divested Business (or the acquirer thereof) to receive the rights described in Section
2.11.1(e) shall terminate in full (A) at the same time as the MSO Party selling, transferring
or otherwise divesting such MSO Divested Business ceases to have the right to resell the
Wireless Broadband Service hereunder or (B) at such time that the MSO Divested Business (or
any successor thereof) becomes an Affiliate of any Restricted Entity or a Restricted Entity
otherwise acquires all or substantially all of the property and assets of the MSO Divested
Business.




     (b) If at any time during the Term (including any Phase-Out Period) applicable to
Sprint, Sprint and/or any of its Controlled Affiliates sells, transfers or otherwise divests
(other than to a Restricted Entity) a Sprint Divested Business (the date of such sale,
transfer or other divestiture, the “Sprint Divestiture Date”), Sprint shall have the right,
at its sole and absolute discretion and notwithstanding anything in this Agreement to the
contrary, to permit such Sprint Divested Business (or the acquirer thereof) to resell the
Wireless Broadband Service to its end users in accordance with the terms of this Agreement in
the same manner and to the same extent as though such Sprint Divested Business (or the
acquirer thereof) were Sprint; provided that (i) Sprint shall be responsible for any breach
of this Agreement by such Sprint Divested Business (or the acquirer thereof) and (ii)
following any material breach of this Agreement by such Sprint Divested Business (or the
acquirer thereof), NewCo shall have the absolute right to terminate this Agreement with
respect to such Sprint Divested Business (or the acquirer thereof) in accordance with Section
13.1(a) (with all applicable notices contemplated by such sections delivered simultaneously
to such Sprint Divested Business (or the acquirer thereof) and Sprint), as applicable (it
being understood that the divestiture agreement or other applicable agreement between Sprint
and such Sprint Divested Business (or the acquirer thereof) shall expressly grant NewCo, as a
condition to granting such Sprint Divested Business (or the acquirer thereof) the right to
resell the Wireless Broadband Service hereunder, the right to terminate this Agreement with



48









 






respect to of such Sprint Divested Business (or the acquirer thereof) as contemplated by
this clause (ii)); provided, however, that (x) any such termination pursuant to the foregoing
clause (ii) will terminate this Agreement solely with respect to such Sprint Divested
Business (or the acquirer thereof) and not with respect to Sprint and (y) under no
circumstance shall a material breach of this Agreement by such Sprint Divested Business (or
the acquirer thereof) give rise to any termination right in favor of NewCo with respect to
Sprint. A “Sprint Divested Business” means, with respect to Sprint, any Controlled Affiliate
of Sprint or any business, division, department or group of assets of Sprint and/or one or
more of its Controlled Affiliates, which (i) constitutes all or substantially all of the
property and assets of Sprint’s and its Controlled Affiliates’ CDMA or iDEN business (or
operational or functional equivalent) and (ii) as of the Sprint Divestiture Date, is either
acquired by a third party or is constituted as a separate legal Person, and as a result
thereof, ceases to be a Controlled Affiliate of, or otherwise controlled by, Sprint.
Following the Sprint Divestiture Date, the Sprint Divested Business’ ability to resell the
Wireless Broadband Service to its end users (i) shall at all times be subject to compliance
with Section 2.3.1, (ii) shall, unless NewCo otherwise agrees in writing, be limited to the
geographic area of such Sprint Divested Business as of the Sprint Divestiture Date and
natural extensions of such geographic area (i.e., additional build-outs of wireless services
territories) and (iii) the right of the Sprint Divested Business (or the acquirer thereof) to
receive the rights described in Section 2.11.1(e) shall terminate in full (A) at the same
time as Sprint ceases to have the right to resell the Wireless Broadband Service hereunder or
(B) at such time that the Sprint Divested Business (or any successor thereof) becomes an
Affiliate of any Restricted Entity or a Restricted Entity otherwise acquires all or
substantially all of the property and assets of the Sprint Divested Business. In addition,
and notwithstanding anything in this Section 16.1(b) to the contrary, following the Sprint
Divestiture Date, (i) the definition of “Sprint Wireless Service” shall be deemed modified
with respect to the Sprint Divested Business to apply only to services offered over the
Sprint Network or the iDEN Network, as the case may be, for which the Sprint Divested
Business holds all or substantially all of the property and assets used to provide wireless
services over such network immediately after the Sprint Divestiture Date (the “Divested
Network”), (ii) the definition of “Sprint Wireless Service” shall be deemed modified with
respect to Sprint to apply to only services offered over the Sprint Network or the iDEN
Network that is not the Divested Network, and (iii) the definition of “Sprint Core Service”
shall be deemed modified with respect to either the Sprint Divested Business or Sprint, as
the case may be, to disregard the reference to “Sprint Wireline Service” solely with respect
to such Person that, following the Sprint Divestiture Date, does not hold a majority of the
assets held by Sprint and used to provide the Sprint Wireline Service immediately prior to
the Sprint Divestiture Date.



          16.2 Acquisitions



For the avoidance of doubt, if any SIG Party or any of its Controlled Affiliates acquires any
Person or creates a new Person after the Effective Date which constitutes a Controlled Affiliate of
such SIG Party, such Person will have the same rights pursuant to Section 2.7 as a Controlled
Affiliate of such SIG Party in existence on the Effective Date.




          16.3 Assignment



Except as provided in Section 16.1 and below in this Section 16.3, no Party may assign, delegate or
otherwise transfer any of its rights or duties granted to it under this Agreement without each
other Party’s prior written consent. Notwithstanding the foregoing sentence, subject to each SIG
Party’s termination rights under Section 13, (a) a SIG Party may assign this Agreement to (i) any
of its Controlled Affiliates or (ii) in connection with a Permitted Strategic Transaction with
respect to such SIG Party and (b) NewCo may assign this Agreement to (i) a Controlled Affiliate of
NewCo or (ii) in connection with a Permitted Strategic Transaction with respect to NewCo; provided
that no such assignment shall relieve such SIG Party or NewCo, as applicable, of any of its
obligations hereunder. For purposes of this Agreement, each Party hereto agrees that, except as
provided in Section 16.1, any direct or indirect sale, assignment, transfer or other disposition of
any stock or equity interests of any Party or any subsidiary of the Ultimate Parent of any Party
that controls such Party will be deemed to be an assignment or other transfer subject to the
provisions of this Section 16.3 if, as a result of such sale, assignment, transfer or other
disposition, such Party would cease to be a Controlled Affiliate of its Ultimate Parent as of
immediately prior to such sale, assignment, transfer or other disposition. Any assignment,
delegation or other transfer in violation




49









 







of this Section 16.3 shall be null and void. No SIG Party permitted assignment under this Section
16.3 will relieve its Guarantor (to the extent it has a Guarantor) of its obligations under Section
7.8(b); provided that such SIG Party’s Guarantor shall be released from its obligations under
Section 7.8(b) and its Guaranty Agreement to the extent that in connection with any Permitted
Strategic Transaction with respect to such SIG Party, the successor Person in such Permitted
Strategic Transaction assumes all the obligations of such Guarantor under its Guaranty Agreement.




     17. General Provisions




          17.1 Notices and Inquiries



Except as otherwise provided, all notices and inquiries will be in writing and mailed (certified or
registered mail, postage prepaid, return receipt requested) or sent by hand or overnight courier,
(with acknowledgment received by the courier), or by facsimile (with facsimile acknowledgment)
addressed as follows:




If to Sprint:



Sprint Spectrum L.P. (d/b/a Sprint)

6200 Sprint Parkway

Overland Park, KS 66251

Attention: President, Wholesale Services



With a copy to:



Sprint Spectrum L.P. (d/b/a Sprint)

6450 Sprint Parkway

Overland Park, KS 66251

Attention: V.P., Law, Sales and Distribution




If to Comcast:



Comcast MVNO II, LLC

c/o Comcast Corporation

One Comcast Center

1701 John F. Kennedy Boulevard

Philadelphia, Pennsylvania 19103

Attention: Chief Financial Officer

Facsimile No.: (215) 286-1240



With copies to:



Comcast Corporation

One Comcast Center

1701 John F. Kennedy Boulevard

Philadelphia, Pennsylvania 19103

Attention: General Counsel

Facsimile No.: (215) 286-7794



Davis Polk & Wardwell

450 Lexington Avenue

New York, New York 10017

Attention: David L. Caplan

Facsimile No.: (212) 450-3800




50









 








If to TWC:



TWC Wireless, LLC

290 Harbor Drive

Stamford, CT 06902

Attention: General Counsel

Facsimile: (203) 328-4094



With a copy to:



TWC Wireless, LLC

290 Harbor Drive

Stamford, CT 06902

Attention: President, TWC Wireless LLC

Facsimile: (203) 328-4094




If to Brighthouse:



BHN Spectrum Investments, LLC

c/o Advance/Newhouse Partnership

5000 Campuswood Drive

East Syracuse, NY 13057

Attention: Mr. Leo Cloutier

Facsimile: (315) 438-4643



With a copy to:



Sabin, Bermant & Gould LLP

Four Times Square

New York, NY 10036

Attention: Arthur J. Steinhauer, Esq.

Facsimile: (212) 381-7218




If to NewCo:



[                                        ]3

With a copy to:

[                                        ]



Any Party may from time to time specify a different address and/or facsimile number by notice to
the other Parties in accordance with the terms of this Section 17.1. All such notices and inquiries
shall be deemed received on the date of receipt by the recipient thereof if received prior to 5:00
p.m. in the place of receipt and such day is a Business Day in the place of receipt. Otherwise,
any such notice or inquiry shall be deemed not to have been received until the next succeeding
Business Day in the place of receipt.




          17.2 Non-exclusivity



This Agreement shall be non-exclusive. Nothing in this Agreement grants NewCo or any of its
Affiliates any exclusive right or privilege to provide to any SIG Party or any SIG Party’s
Affiliates any services of the type contemplated herein, or grants any SIG Party or any SIG Party’s
Affiliates an exclusive right or






 




			
	3	 	Notice provision to be included prior to the closing.




51









 









privilege to receive from NewCo or any of its Affiliates any products or services of the type
contemplated herein.




          17.3 Construction



The definitions in this Agreement apply equally to both the singular and plural forms of the terms
defined. Whenever the context requires, any pronoun includes the corresponding masculine, feminine
and neuter forms. The words “hereof”, “herein” and “hereunder” and words of like import used in
this Agreement shall refer to this Agreement as a whole and not to any particular provision of this
Agreement. References to Sections, Schedules and Exhibits are to Sections, Schedules and Exhibits
of this Agreement unless otherwise specified. All Schedules and Exhibits annexed hereto or
referred to herein are hereby incorporated in and made a part of this Agreement as if set forth in
full herein. Any capitalized term used in any Schedule or Exhibit but not otherwise defined
therein shall have the meaning as defined in this Agreement. The words “include”, “includes” and
“including” are deemed to be followed by the phrase “without limitation” whether or not they are in
fact followed by those words or words of like import. “Writing”, “written” and comparable terms
refer to printing, typing and other means of reproducing words (including electronic media) in a
visible form. Unless the context otherwise requires, any references to any agreement, contract,
schedule or exhibit or to any other instrument or statute or regulation are to it as amended and
supplemented from time to time in accordance with the terms hereof and thereof (and, in the case of
a statute or regulation, to any corresponding provisions of successor statutes or regulations).
References to any Person include the successors and permitted assigns of that Person. References
from or through any date mean, unless otherwise specified, from and including or through and
including, respectively. Any reference in this Agreement to a “day” or number of “days” is a
reference to a calendar day or number of calendar days. If any action or notice is to be taken or
given on or by a particular calendar day, and that calendar day is not a Business Day then the
action or notice will be deferred until, or may be taken or given on, the next Business Day. This
Agreement will be construed simply according to its fair meaning and not strictly for or against
any Party. No rule of construction requiring interpretation against the draftsperson will apply in
the interpretation of this Agreement. Except as otherwise provided, if there are any
inconsistencies between any Schedule or Exhibit, and the body of this Agreement, the body of this
Agreement controls. If there are any inconsistencies between the MVNO Operations Manual and this
Agreement, this Agreement controls.




          17.4 Survival



The provisions of this Agreement that by their nature or by their content or as specified under
this Agreement are intended to continue beyond the termination, cancellation or expiration of this
Agreement, including, for the avoidance of doubt, the Parties’ obligations under Sections 12, 13.5,
13.6, 13.7, 13.8, 14.3, 15 and 17 shall survive the termination, cancellation or expiration of this
Agreement.




          17.5 Headings



The section headings used in this Agreement are for purposes of reference and convenience only and
are not intended to be and shall not be interpreted as being a substantive part of this Agreement
conveying any rights or imposing any obligations.




          17.6 Severability



If any part of any provision of this Agreement is judged to be invalid or unenforceable under
Applicable Law, such part shall be severable and ineffective to the extent of such invalidity only,
without in any way affecting the remaining parts of such provision or the remaining provisions of
this Agreement, whose continuation in full force and effect will not be prejudiced.




          17.7 Dispute Resolution



Except as set forth in the last sentence of 17.8(b) or in Section 17.10, each Party will comply
with the following dispute resolution process with respect to any disputes arising under this
Agreement prior to pursuing any other remedies available to it. Any Party involved in such dispute
shall notify the other Party or Parties involved in such dispute in writing of the basis of the
dispute. Within 10 Business Days (or such longer period as may be agreed upon) following the date
that a Party provided such notice, a team from each Party involved in such dispute (consisting of
at least one senior executive from such Party) shall meet and confer in person or by telephone
conference in an attempt to resolve such dispute. In the




52









 







event that such teams are unable to resolve any such dispute within 20 Business Days following the
date that a Party provided such notice of dispute, any Party involved in such dispute may pursue
any remedies available to it as set forth in this Agreement.




          17.8 Confidential Arbitration





     (a) Subject to the right of each Party to seek injunctive relief to prevent breaches of
this Agreement or to enforce specifically the performance or terms and provisions hereof
(which right shall not be subject to arbitration) and subject to the last sentence of
17.8(b), any claim, dispute or controversy arising out of or relating to this Agreement shall
be resolved by arbitration following the submission of such dispute or controversy to dispute
resolution pursuant to Section 17.7, by delivering a demand for arbitration to the other
Party or Parties to such dispute or controversy which demand shall contain a statement
setting forth the nature of the dispute, the amount involved, if any, and the remedy sought
(each, a “Demand”).




     (b) Within 15 Business Days after the receipt of the Demand by the other Party or
Parties, NewCo and the SIG Party(ies) involved in such dispute or controversy shall select a
mutually acceptable third-party expert that, to the extent reasonably available, is
experienced in and knowledgeable about the wireless wholesale industry or wholesale
telecommunications industry (if no one experienced and knowledgeable in the wireless
wholesale industry is reasonably available) and has a relevant technical background, but with
no prior, existing or potential material business relationship with any Party or any
Controlled Affiliate of any Party (the “Third-Party Expert”). If NewCo and the SIG
Party(ies) involved in such dispute or controversy are unable, for whatever reason, to agree
upon the selection of the Third-Party Expert within 15 Business Days or such later date as to
which NewCo and the SIG Party(ies) involved in such dispute or controversy mutually agree in
writing, application shall be made to the American Arbitration Association (“AAA”) in New
York for the selection and appointment of the Third-Party Expert pursuant to AAA’s rules for
selection; provided that in addition to satisfying the requirements of the immediately
preceding sentence, such Person selected as the Third-Party Expert shall be required to have
10 years of business or professional experience involving complex business or legal matters.
The Third-Party Expert must agree to resolve the dispute or controversy accordance with the
provisions of this Section 17.8. The arbitration proceeding shall be conducted in accordance
with the AAA’s optional procedures for large, complex commercial disputes (the “Rules”), to
the extent that the Rules are not inconsistent with this Section 17.8, including within the
required time periods. The Third-Party Expert may modify the procedures set forth in such
Rules with the prior written approval of NewCo and the SIG Party(ies) involved in such
dispute or controversy. The place of such arbitration shall be New York, New York or such
other location agreed to by NewCo and the SIG Party(ies) involved in such dispute or
controversy. Notwithstanding anything to the contrary in this Section 17.8 (and whether or
not a matter is first submitted to arbitration pursuant to this Section 17.8), any Party may,
without first submitting such matter to dispute resolution under Section 17.7, apply to a
court having jurisdiction pursuant to Section 17.9 to the extent necessary (i) to seek
injunctive relief to prevent breaches of this Agreement or to enforce specifically the
performance or terms and provisions hereof (including to enforce any agreement hereunder to
arbitrate), (ii) to avoid the expiration of any applicable limitation period, (iii) to
preserve a superior position with respect to other creditors or (iv) to challenge or vacate
any final judgment, award or decision of the Third-Party Expert that does not comport with
the express provisions of this Section 17.8.




     (c) With respect to any disputes relating to the price and price related terms (any such
disagreement, a “Pricing Dispute” and, any such disputed price and price related terms, the
“Disputed Pricing Terms”) on which NewCo will make any Standard Network Service or
Non-Standard Network Service available to one or more SIG Parties in accordance with
Schedule 7.1, NewCo, on the one hand, and the SIG Party(ies) involved in such Pricing
Dispute, on the other hand, shall each submit in writing to the Third-Party Expert (with
copies thereof simultaneously delivered to each other Party or Parties to such Pricing
Dispute) no later than 10 Business Days after the appointment of the Third-Party Expert with
respect to such Pricing Dispute or such later date as to which NewCo and the SIG Party(ies)
involved in such Pricing Dispute mutually agree in writing, its or their proposal with
respect to the Disputed Pricing Terms, together with an



53









 






explanation supporting its or their proposal based on the pricing guidelines set forth
in Schedule 7.1. If the Third-Party Expert determines that additional information is
necessary, it shall, by written notice to the Parties, request such information from any
Party or Parties, and establish a reasonable time period (not to exceed five Business Days)
for the submission of such information (with copies thereof simultaneously delivered to each
other Party or Parties to such Pricing Dispute). The Third-Party Expert shall also have the
right to request, upon reasonable notice deemed appropriate by the Third-Party Expert, that
NewCo, on the one hand, and the SIG Party(ies) involved in such Pricing Dispute, on the other
hand, make oral presentations, provided that each such Party or Parties shall be afforded a
full and equal opportunity to be heard. The Third-Party Expert shall, based on the pricing
guidelines set forth in Schedule 7.1, such written submissions and any such oral
presentations, present to NewCo and the SIG Party(ies) involved in such Pricing Dispute a
written decision as to the resolution of the Pricing Dispute and choose either the NewCo
proposed Disputed Pricing Terms or the SIG Party(ies) proposed Disputed Pricing Terms as the
final Disputed Pricing Terms. The written decision by the Third-Party Expert with respect to
any Pricing Dispute shall be rendered as soon as possible, but in no event later than 45 days
after the appointment of the Third-Party Expert with respect to such Pricing Dispute.




     (d) With respect to any dispute or controversy other than a Pricing Dispute, following
the selection of the Third-Party Expert, upon the request of NewCo, on the one hand, and the
SIG Party(ies) involved in such dispute or controversy, on the other hand, the Third-Party
Expert selected will hear NewCo’s and the SIG Party(ies)’ presentation within 30 days of such
request. The arbitration proceedings shall be concluded within 30 days after commencement of
such proceedings or such later date as the SIG Parties and NewCo mutually agree in writing.
Within 10 Business Days of the conclusion of the arbitration proceedings, the Third-Party
Expert shall present to the SIG Parties and NewCo a written decision regarding the dispute,
which shall set forth the findings of fact and conclusions of law relied upon in reaching
the decision.




     (e) Subject to clause (iv) of the last sentence of 17.8(b), the written decision of the
Third-Party Expert with respect to any dispute or controversy, including any Pricing Dispute,
shall be final and binding and the parties to any arbitration pursuant to this Agreement
shall be deemed to have consented that judgment upon the arbitration award may be entered in
any federal or state court of competent jurisdiction.




     (f) The Third-Party Expert shall not have the power or authority (x) to grant injunctive
or equitable relief to prevent breaches of this Agreement or to enforce specifically the
performance or terms and provisions hereof or (y) to grant any remedies that the Parties have
waived hereunder or to grant remedies in those instances where specific remedies are set
forth in this Agreement as the sole and exclusive remedies.




     (g) Each Party shall pay the fees of its own attorneys, expenses of witnesses and all
other expenses and costs in connection with the preparation of written submissions or
presentation of such Party’s case (collectively, “Attorneys’ Fees”). The remaining costs of
the arbitration, including fees of the Third-Party Expert, costs of records or transcripts
and administrative fees (collectively, “Arbitration Costs”), shall be borne equally by the
SIG Parties involved in such dispute or controversy, on the one hand, and NewCo, on the other
hand. Notwithstanding the foregoing, the Third-Party Expert may modify the allocation of
Arbitration Costs and award Attorneys’ Fees in those cases where fairness dictates a
different allocation of Arbitration Costs among the Parties involved in such dispute or
controversy and/or an award of Attorneys’ Fees to the prevailing Party(ies) as determined by
the Third-Party Expert.




     (h) All discussions and correspondence between or among the Parties in connection with
any arbitration proceeding, as well as the existence, conduct and content of such arbitration
proceeding, shall constitute Confidential Information for purposes hereof.



          17.9 Governing Law; Exclusive Venue



This Agreement will be governed by and construed in accordance with the laws in effect in the State
of New York, without regard to the application of conflict of law rules or principles. With
respect to any matter not required to be submitted to arbitration pursuant to the last sentence of
Section 17.8(b), each




54









 







Party irrevocably consents to the exclusive jurisdiction of, and venue in, the United States
District Court for the Southern District of New York or, if such court does not have subject matter
jurisdiction, the state courts of New York located in New York County (and of the appropriate
appellate courts therefrom) based on or arising out of any such matter. The Parties agree that any
cause of action arising out of this Agreement shall be deemed to have arisen from a transaction of
business in the State of New York, and each of the Parties hereby irrevocably waives, to the
fullest extent permitted by law, any objection that it may now or hereafter have to the laying of
the venue of any such suit, action or proceeding in any such court or that any such suit, action or
proceeding brought in any such court has been brought in an inconvenient forum. Process in any
such suit, action or proceeding may be served on any Party anywhere in the world, whether within or
without the jurisdiction of any such court. Without limiting the foregoing, each Party agrees that
service of process on such Party as provided in Section 17.1 shall be deemed effective service of
process on such Party.




          17.10 Specific Performance



Notwithstanding anything in this Agreement to the contrary, each of the Parties agrees that
irreparable injury may occur if any provision of this Agreement were not performed in accordance
with the terms hereof and that each Party will be entitled to seek injunctive relief or to enforce
specifically the performance of the terms and provisions hereof in any court specified in Section
17.9, without first submitting such matter to dispute resolution under Section 17.7.




          17.11 Waiver of Jury Trial



EACH PARTY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY ACTION, SUIT OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT, AND WHETHER MADE BY CLAIM, COUNTER CLAIM, THIRD-PARTY CLAIM OR OTHERWISE.




          17.12 Counterpart Execution



This Agreement may be executed in two or more counterparts (facsimile or otherwise), each of which
shall be deemed an original. This Agreement and any counterpart so executed shall be deemed to be
one and the same instrument.



          17.13
Entire Agreement



This Agreement, together with the Schedules and Exhibits attached hereto and incorporated herein,
sets forth the entire understanding of the Parties and supersedes any and all prior agreements,
arrangements or understandings, both oral and written, between the Parties relating to the subject
matter hereof. Except as otherwise expressly provided in this Agreement, any consent or agreement
that this Agreement contemplates being granted or withheld by any Party may be granted or withheld
in such Party’s sole discretion.




          17.14 No Partnership; No Third-Party Beneficiaries



This Agreement does not constitute any Party as the agent or legal representative of another Party
and does not create a partnership or joint venture. This Agreement does not create the authority
of any Party to enter into an agreement for or bind another Party in any manner whatsoever.
Nothing in this Agreement is intended to or shall confer upon any Person who is not a Party to this
Agreement (or such Party’s respective successor or assign) any rights, benefits, remedies,
obligations or liabilities of any nature whatsoever under or by reason of this Agreement, nor shall
any such Person be entitled to assert any claim hereunder.




          17.15 Amendments; Waivers; Remedies



This Agreement may not be amended, varied or modified in any manner except by an instrument in
writing signed by duly authorized officers or representatives of each of the Parties; provided that
subject to compliance with Sections 2.4(b) and 2.11, NewCo, on the one hand, and any SIG Party, on
the other hand, may amend, vary or modify this Agreement with respect to such Parties only. Except
as expressly provided in this Agreement, no waiver of this Agreement shall be binding unless
executed in writing by the Party to be bound by it. No waiver of any provision of this Agreement
shall constitute a waiver of any other provision nor shall any waiver of any provision of this
Agreement constitute a continuing waiver




55









 







unless otherwise expressly provided. The failure of any Party to exercise any right granted herein
or to require any performance of any term of this Agreement or the waiver by any Party of any
breach of this Agreement shall not prevent a subsequent exercise or enforcement of, or be deemed to
be a waiver of any subsequent breach of, the same or any other term of this Agreement.
Notwithstanding any other provision of this Agreement and unless otherwise expressly stated herein,
all rights and remedies of a Party under this Agreement are in addition to such Party’s other
rights and remedies and are cumulative, not alternative.




          17.16 Force Majeure



If the performance of this Agreement is interfered with by any circumstance beyond the reasonable
control of the Party affected (a “Frustrated Party”), including (a) acts of God, such as fire,
flood, earthquake, or other natural cause, (b) terrorist events, riots, insurrections, war or
national emergency, or (c) strikes, boycotts, lockouts or other labor difficulties (provided that
the strike, boycott or other labor difficulties were outside the reasonable control of the
Frustrated Party) (collectively, a “Force Majeure Event”), the Frustrated Party shall not be liable
to any other Party (a “Non-Frustrated Party”) for any failure to perform or delay in performance of
its obligations under this Agreement. The phrase “beyond its reasonable control”, as used above,
means that the adverse affect, if foreseeable by the Frustrated Party, was not avoidable by the
Frustrated Party’s use of all commercially reasonable efforts. The Frustrated Party shall promptly
notify each Non-Frustrated Party of the nature and extent of the circumstances of the Force Majeure
Event once known. In the event of a Force Majeure Event, the Frustrated Party shall forthwith
establish and implement a plan that minimizes the disruption to each Non-Frustrated Party and shall
use its commercially reasonable efforts to remedy the situation and remove the cause of its
inability to perform as soon as possible. The Frustrated Party shall give each Non-Frustrated
Party prompt notice of the cessation of the Force Majeure Event. The Frustrated Party and each
Non-Frustrated Party shall negotiate in good faith adjustments to the terms and conditions of this
Agreement that are equitable taking into account the nature and extent of the circumstances of the
Force Majeure Event as they develop and become known, including equitable reductions in the
obligations of each Non-Frustrated Party (including, if NewCo is the Frustrated Party hereunder,
reductions in the pricing set forth on Schedule 7.1); provided that it is understood that
if any SIG Party is the Frustrated Party hereunder, under no circumstances will NewCo be excused or
otherwise relieved from the performance of its obligations hereunder with respect to any other SIG
Party whose performance is not being similarly frustrated. If the Force Majeure Event lasts more
than [*****], each Non-Frustrated Party affected by the Frustrated Party’s non-performance shall
have the option of terminating this Agreement in its entirety by delivering written notice thereof
to the Frustrated Party; provided, however, that if any SIG Party is the Frustrated Party
hereunder, the foregoing termination right shall only apply to that particular SIG Party and shall
not grant NewCo any right to terminate this Agreement as to any SIG Party whose performance is not
being similarly frustrated.




          17.17 Disclosure



Subject to Applicable Law or disclosure requirement (including any disclosure requirement arising
under applicable securities laws or under the rules of any stock exchange or quotation system on
which a Party’s or any of its Controlled Affiliates’ shares are traded), each Party shall consult
with, and allow reasonable review by, the other Parties before issuing any other press release or
making any public statement with respect to this Agreement or the transactions contemplated hereby,
provided that such Party shall have used commercially reasonable efforts to allow the other Parties
to review and comment on such release or statement in advance.





56









 








     IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed by their
respective authorized officers as of the day and year first above written.



	 	 	 	 	 	 	 	 	 	 	 	 	 
	[NEWCO, LLC]	 	 	 	SPRINT SPECTRUM L.P.
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	By:

	 	 	 	 	 	 	 	By:	 	 	 	 
	 

	 	Name:
	 	 	 	 	 	 	 	Name:	 	 
	 

	 	Title:
	 	 	 	 	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	COMCAST MVNO II, LLC	 	 	 	BHN SPECTRUM INVESTMENTS, LLC
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	By:

	 	 	 	 	 	 	 	By:	 	 	 	 
	 

	 	Name:
	 	 	 	 	 	 	 	Name:	 	 
	 

	 	Title:
	 	 	 	 	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	TWC WIRELESS, LLC	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	By:

	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	Name:
	 	 	 	 	 	 	 	 	 	 
	 

	 	Title:
	 	 	 	 	 	 	 	 	 	 






 









 






Schedule 2.2.1(b)




[*****]




 









 








Schedule 2.2.2




[*****]




 









 








Schedule 2.2.3(b)




[*****]




 









 








Schedule 2.2.4(a)




[*****]





 









 








Schedule 2.2.4(c)




[*****]




62









 








Schedule 2.3.5(b)




[*****]





63











 





Schedule 2.4(a)(1)




Google Opt-In Agreement




Letter Agreement Regarding

4G MVNO Agreement Option




     Reference is made to the 4G MVNO Agreement dated as of [•], 20[•] (as amended, modified or
supplemented from time to time, the “4G MVNO Agreement”) among [NewCo, LLC] (“NewCo”), Sprint
Spectrum L.P., Comcast MVNO II, LLC, TWC Wireless, LLC and BHN Spectrum Investments, LLC, a copy of
which, as in effect on the date hereof, is attached as Exhibit A hereto. Except as otherwise
provided herein, all capitalized terms not otherwise defined herein have the meanings assigned to
them in the 4G MVNO Agreement.



     For good and valuable consideration, the receipt of which is hereby acknowledged, NewCo hereby
grants to Google Inc. (“Google”) the right (the “4G MVNO Agreement Option”) to become a “Party” to
the 4G MVNO Agreement as a “SIG Party” thereunder in accordance with Section 2.4(a) of the 4G MVNO
Agreement upon (i) the execution by Google or any of its Controlled Affiliates of a joinder
agreement in substantially the form attached as Schedule 2.4(a)(3) to the 4G MVNO Agreement under
which Google or any such Controlled Affiliate will agree to be bound by, and subject to, all of the
covenants, terms and conditions of the 4G MVNO Agreement applicable to a “SIG Party” thereunder
generally, and to “Google,” in the case of Google or its Controlled Affiliate, specifically and
(ii), to the extent a Controlled Affiliate of Google will become a party to the 4G MVNO Agreement
and NewCo determines reasonably necessary, the Ultimate Parent of such Controlled Affiliate
executes a Guaranty Agreement in substantially the form attached as Attachment 1 to the 4G MVNO
Agreement or a letter agreement in substantially the form attached as Attachment 2 to the 4G MVNO
Agreement.



     This letter agreement is governed by and construed in accordance with the laws of the State of
New York. This letter agreement is binding upon and inures to the benefit of and is enforceable by
each of the parties and their successors and assigns. This letter agreement may be amended only
with the written consent of the parties hereto. This letter agreement may be executed in
counterparts, each of which will be deemed to constitute an original but all of which together will
constitute one and the same instrument.



     By signing below, the parties hereby agree to the terms and conditions of this letter agreement.



AGREED AND ACCEPTED:




[NEWCO, LLC]




By: __________________




Its: __________________






64









 






GOOGLE INC.




By: __________________




Its: __________________




Dated: _______________




65









 





EXHIBIT A




4G MVNO Agreement




[attached]




66









 





Schedule 2.4(a)(2)




Intel Opt-In Agreement




[NewCo, LLC Letterhead]




Intel Corporation

2200 Mission College Boulevard

Santa Clara

California

95054-1549




     Re: 4G MVNO Agreement Option


Ladies and Gentlemen:




     For good and valuable consideration, the receipt of which is hereby acknowledged, [NewCo, LLC]
(“NewCo”) hereby grants Intel Corporation the right (the “4G MVNO Agreement Option”), contingent
upon Intel’s compliance with the conditions set forth in Section 3.3.1 of the Market Development
Agreement dated as of the date hereof (the “Commercial Agreement”) between NewCo and Intel (as such
conditions are in effect on the date hereof), to, at any time during the Initial Term (as such term
is defined in the Commercial Agreement), become a “Party” to that certain 4G MVNO Agreement dated
as of the date hereof, a true and complete copy of which is attached as Exhibit “A” hereto (the “4G
MVNO Agreement”), as a “SIG Party” thereunder in accordance with Section 2.4(a) of the 4G MVNO
Agreement upon (i) the execution by Intel or any of its Controlled Affiliates of a joinder
agreement in substantially the form attached as Schedule 2.4(a)(3) to the 4G MVNO Agreement
under which Intel or any such Controlled Affiliate will agree to be bound by, and subject to, all
of the covenants, terms and conditions of the 4G MVNO Agreement applicable to a “SIG Party”
thereunder generally, and to “Intel”, in the case of Intel or its Controlled Affiliate,
specifically and (ii), to the extent a Controlled Affiliate of Intel will become a party to the 4G
MVNO Agreement and NewCo determines reasonably necessary, the Ultimate Parent of such Controlled
Affiliate executes a Guaranty Agreement in substantially the form attached as Attachment 1
to the MVNO Agreement or a letter agreement in substantially the form attached as Attachment
2 to the MVNO Agreement.



     By exercising the 4G MVNO Agreement Option as described in the immediately preceding
paragraph, Intel shall be deemed to have certified that as of the date of such exercise, it has
complied with the conditions specified in Section 3.3.1 of the Commercial Agreement applicable as
of the date of exercise.



     Except as otherwise provided herein, all capitalized terms not otherwise defined herein shall
have the meanings assigned to them in the 4G MVNO Agreement.



     This letter agreement shall be governed by and construed in accordance with the laws of the
State of New York. This letter agreement shall be binding upon and shall inure to the benefit of
and be enforceable by each of the parties and their successors and assigns. This letter agreement
may be amended only with the written consent of the parties hereto. This letter agreement may be
executed in counterparts, each of which shall be deemed to constitute an original but all of which
together shall constitute one and the same instrument.



     By signing below, the parties hereby agree to the terms and conditions of this latter
agreement.



67









 





	 	 	 	 	 
	AGREED AND ACCEPTED:




[NEWCO, LLC]

 	 	 
	By:  	 	 	 
	 	Its: 	 	 	 
	 	 	 	 
	 
	INTEL CORPORATION

 	 	 
	By:  	 	 	 
	 	Its: 	 	 	 
	 	Dated: 	 	 	 



68









 






	 	 	 	 	 



EXHIBIT A




4G MVNO Agreement




[attached]




69









 





Schedule 2.4(a)(3)




JOINDER AGREEMENT





     This Joinder Agreement (this “Joinder”) to the 4G MVNO Agreement dated as of [•], 20[•], as
amended, restated, modified or supplemented from time to time (the “MVNO Agreement”), among [NewCo,
LLC], Sprint Spectrum L.P., Comcast MVNO II, LLC, TWC Wireless, LLC, BHN Spectrum Investments, LLC,
and [Name of any other SIG Party then party to the MVNO Agreement], is made and entered into as of
[•], 20[•] (the “Joinder Date”), by [Google Entity][Intel Entity], (the “Joining Party”).
Capitalized terms used herein but not otherwise defined shall have the meanings set forth in the
MVNO Agreement.



     WHEREAS, as a condition precedent for the Joining Party to be authorized to purchase Wireless
Broadband Service from NewCo as a “SIG Party” under the MVNO Agreement and market and sell Wireless
Broadband Service to its End Users as MVNO Service, Section 2.4(a) of the MVNO Agreement requires
the Joining Party to execute a joinder agreement and to become a party to, and be deemed a SIG
Party under, the MVNO Agreement, and the Joining Party agrees to do so in accordance with the terms
hereof.



     NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Joining
Party hereby agrees as follows:



     1. Agreement to be Bound. The Joining Party hereby (a) acknowledges that it has received and
reviewed a complete copy of the MVNO Agreement and (b) agrees that upon execution of this Joinder,
shall become a party to the MVNO Agreement and shall be fully bound by, and subject to, all of the
covenants, terms and conditions of the MVNO Agreement as though an original party thereto and shall
be deemed a “Party” and “SIG Party” for all purposes thereof generally and [“Google”][“Intel”]
specifically and shall have all of the rights and obligations incidental thereto.



     2. Notices and Inquiries. For purposes of Section 17.1 of the MVNO Agreement, the notice
address of the Joining Party is as follows:



     [Name]

     [Address]




     3. Governing Law; Jurisdiction; Exclusive Venue. This Joinder will be governed by and
construed in accordance with the laws in effect in the State of New York, without regard to the
application of conflict of law rules or principles. Any dispute or controversies arising under
this Joinder shall be resolved in accordance with the terms set forth in Section 17.9 of the MVNO
Agreement.



     4. Counterparts. This Joinder may be executed in separate counterparts, each of which shall
be an original and all of which taken together shall constitute one and the same agreement.
Delivery of an executed signature page to this Joinder by facsimile shall be as effective as
delivery of a manually executed counterpart of this Joinder.



     5. Descriptive Headings. The descriptive headings of this Joinder are inserted for
convenience only and do not constitute a part of this Joinder.



70









 





     IN WITNESS WHEREOF, the undersigned has executed this Joinder as of the Joinder Date.



	 	 	 	 	 
	 	[Joining Party]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 









 






	 	 	 	 	 



Schedule 2.11.1(e)




[*****]





72









 








Schedule 6.1




[*****]




73









 








Schedule 6.5




[*****]




74









 








Schedule 7.1




[*****]





75









 








EXHIBIT A




[*****]




76









 








EXHIBIT B




[*****]




77









 








EXHIBIT C




[*****]




78









 








Schedule 7.2




[*****]




79









 








Appendix A




[*****]




80









 








Schedule 8.1.1(b)




[*****]





81









 








Schedule 8.1.1(c)




[*****]





82









 








Schedule 9.4.2(a)




[*****]





83









 








ATTACHMENT 1




[*****]





84











 





ATTACHMENT 2




[SIG Party Letter Agreement]




[•], 20[•]



NewCo LLC

[address]



Re: 4G MVNO Agreement dated as of [the date hereof][[•], 20___] (as amended, modified or
supplemented from time to time, the “4G MVNO Agreement”) by and among NewCo, LLC, Comcast
MVNO II, LLC, TWC Wireless, LLC, BHN Spectrum Investments, LLC, Sprint Spectrum L.P., and each
other Person who shall become a party to the 4G MVNO Agreement (capitalized terms used herein
without definition have the meanings given to them in the 4G MVNO Agreement)



Ladies and Gentlemen:



[SIG Party Ultimate Parent] (“Parent”), for the benefit of NewCo under the 4G MVNO
Agreement, in consideration of the promises, covenants and agreements of NewCo under the 4G MVNO
Agreement, agrees to cause [Name of SIG Party] (“Subsidiary”) and each of its other
Controlled Affiliate to take all actions as are necessary for each of them to perform its
obligations under the 4G MVNO Agreement and to permit Subsidiary to perform its obligations under
the 4G MVNO Agreement.



Parent represents and warrants to NewCo that: (i) it is a legal entity duly organized, validly
existing and in good standing under the laws of its jurisdiction of incorporation and has all
governmental licenses, authorizations, permits, consents and approvals required to carry on its
business as now conducted; (ii) it has all requisite corporate power and authority to execute,
deliver and perform its obligations under this letter agreement and activities contemplated hereby;
(iii) it is duly licensed, authorized or qualified to do business and is in good standing in every
jurisdiction in which a license, authorization or qualification is required for the ownership or
leasing of its assets or the transaction of business of the character transacted by it, except
where the failure to be so licensed, authorized or qualified would not have a material adverse
effect on its ability to fulfill its obligations hereunder; (iv) this letter agreement is a valid
and legally binding obligation of it, enforceable in accordance with its terms (except as
enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer and similar laws of general applicability relating to or effecting creditors’
rights or by general equity principles); (v) the execution, delivery and performance of this letter
agreement by it have been duly authorized by all necessary actions; (vi) the execution, delivery
and performance of this letter agreement by it will not conflict with, violate or result in a
breach of (a) any Applicable Law, (b) any of the terms, conditions or provisions of its
organizational documents or (c) any material agreement or instrument to which it is or may be bound
or to which any of its material properties, assets or businesses is subject; and (vii) it has not
received any currently effective notice of default under any agreement or instrument that could
reasonably be expected to impair in any material respect its ability to perform under this letter
agreement.




85









 







Each of the parties to this letter agreement also agrees to the following:




     1. This letter agreement will be governed by and construed in accordance with the laws in
effect in the State of New York, without regard to the application of conflict of law rules or
principles. Such party consents to the exclusive jurisdiction of, and venue in, the United States
District Court for the Southern District of New York or, if such court does not have subject matter
jurisdiction, the state courts of New York located in New York County in connection with matters
arising under this letter agreement;



     2. Notwithstanding anything in this letter agreement to the contrary, such party agrees that
any remedy at law for any breach of this letter agreement may be inadequate and that any party will
be entitled to seek injunctive relief from any court having jurisdiction with respect to any
alleged breach of this letter agreement; and



     3. SUCH PARTY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN RESPECT OF ANY ACTION, SUIT OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
LETTER AGREEMENT, AND WHETHER MADE BY CLAIM, COUNTER CLAIM, THIRD PARTY CLAIM OR OTHERWISE.



     4. Without the prior written consent of Parent, in the case of NewCo, or NewCo, in the case of
Parent, which, in each case, may be withheld in its sole discretion, no party may assign, delegate
or otherwise transfer any of its rights or obligations under this letter agreement without the
consent of each other party hereto.



     5. Any provision of this letter agreement may be amended or waived, if, but only if, such
amendment or waiver is in writing and is signed, in the case of an amendment, by the parties to
this letter agreement, or in the case of a waiver, by the party against whom the waiver is to be
effective.



     6. Any term or provision of this letter agreement that is invalid or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the remaining terms or provisions of
this letter agreement or affecting the validity or enforceability of any of the terms or provisions
of this letter agreement in any other jurisdiction.



     7. This letter agreement may be executed by the parties hereto in counterparts and by
facsimile copy, each of which shall be deemed an original but all of which shall constitute one and
the same instrument.



     This letter agreement is signed as of the date first written above.



86









 






	 	 	 	 	 
	 	[SIG PARTY ULTIMATE PARENT]

 	 
	 	

 	 
	 	Name:  	 	 	 
	 	Title:  	 	 	 
	 



Accepted and Agreed:




	 	 	 	 	 
	[NEWCO, LLC]

 	 	 
	By:  	 	 	 
	 	Name:  	 	 	 
	 	Title:  	 	 	 



87









 






	 	 	 	 	 



ATTACHMENT 3




NewCo Letter Agreement




[•], 20[•]




Comcast MVNO II, LLC

c/o Comcast Corporation

One Comcast Center

1701 John F. Kennedy Boulevard

Philadelphia, Pennsylvania 19103

Attention: Chief Financial Officer




TWC Wireless, LLC

290 Harbor Drive

Stamford, CT 06902

Attention: General Counsel




BHN Spectrum Investments, LLC

c/o Advance/Newhouse Partnership

5000 Campuswood Drive

East Syracuse, NY 13057

Attention: Mr. Leo Cloutier




Sprint Spectrum L.P. (d/b/a Sprint)

6200 Sprint Parkway

Overland Park, KS 66251

Attention: President, Wholesale Services



Re: 4G MVNO Agreement dated as of the date hereof (as amended, modified or supplemented from time
to time, the “4G MVNO Agreement”) by and among NewCo, LLC, Comcast MVNO II, LLC, TWC
Wireless, LLC, BHN Spectrum Investments, Sprint Spectrum L.P., and each other Person who shall
become a party to the 4G MVNO Agreement (capitalized terms used herein without definition have the
meanings given to them in the 4G MVNO Agreement)



Ladies and Gentlemen:



[NewCo Corporation] (“Parent”), for the benefit of each Person that is a SIG Party under
the 4G MVNO Agreement, in consideration of the promises, covenants and agreements of the SIG
Parties under the 4G MVNO Agreement, agrees to cause NewCo, LLC (“NewCo”) and each of its
other Controlled Affiliate to take all actions as are necessary for each of them to perform its
obligations under the 4G MVNO Agreement and to permit Sprint to perform its obligations under the
4G MVNO Agreement.



Parent represents and warrants to each SIG Party that: (i) it is a legal entity duly organized,
validly existing and in good standing under the laws of its jurisdiction of incorporation and has
all governmental licenses, authorizations, permits, consents and approvals required to carry on its
business as now conducted; (ii) it has all requisite corporate power and authority to execute,
deliver and perform its obligations under this letter agreement and


88









 






activities contemplated hereby; (iii) it is duly licensed, authorized or qualified to do business
and is in good standing in every jurisdiction in which a license, authorization or qualification is
required for the ownership or leasing of its assets or the transaction of business of the character
transacted by it, except where the failure to be so licensed, authorized or qualified would not
have a material adverse effect on its ability to fulfill its obligations hereunder; (iv) this
letter agreement is a valid and legally binding obligation of it, enforceable in accordance with
its terms (except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer and similar laws of general applicability relating
to or effecting creditors’ rights or by general equity principles); (v) the execution, delivery and
performance of this letter agreement by it have been duly authorized by all necessary actions; (vi)
the execution, delivery and performance of this letter agreement by it will not conflict with,
violate or result in a breach of (a) any Applicable Law, (b) any of the terms, conditions or
provisions of its organizational documents or (c) any material agreement or instrument to which it
is or may be bound or to which any of its material properties, assets or businesses is subject; and
(vii) it has not received any currently effective notice of default under any agreement or
instrument that could reasonably be expected to impair in any material respect its ability to
perform under this letter agreement.



Each of the parties to this letter agreement also agrees to the following:





     1. This letter agreement will be governed by and construed in accordance with the laws in
effect in the State of New York, without regard to the application of conflict of law rules or
principles. Such party consents to the exclusive jurisdiction of, and venue in, the United States
District Court for the Southern District of New York or, if such court does not have subject matter
jurisdiction, the state courts of New York located in New York County in connection with matters
arising under this letter agreement;



     2. Notwithstanding anything in this letter agreement to the contrary, such party agrees that
any remedy at law for any breach of this letter agreement may be inadequate and that any party will
be entitled to seek injunctive relief from any court having jurisdiction with respect to any
alleged breach of this letter agreement; and



     3. SUCH PARTY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN RESPECT OF ANY ACTION, SUIT OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
LETTER AGREEMENT, AND WHETHER MADE BY CLAIM, COUNTER CLAIM, THIRD PARTY CLAIM OR OTHERWISE.



     4. Without the prior written consent of Parent, in the case of any SIG Party, or each SIG
Party, in the case of Parent, which, in each case, may be withheld in its sole discretion, no party
may assign, delegate or otherwise transfer any of its rights or obligations under this letter
agreement without the consent of each other party hereto, except that a SIG Party may assign, in
whole or in part, this letter agreement to a permitted assignee of such SIG Party pursuant to
Section 16.1 or 16.3 of the 4G MVNO Agreement in connection with the assignment of the 4G MVNO
Agreement, in whole or in part, to such Person.



     5. Any provision of this letter agreement may be amended or waived, if, but only if, such
amendment or waiver is in writing and is signed, in the case of an amendment, by the parties to
this letter agreement, or in the case of a waiver, by the party against whom the waiver is to be
effective.



     6. Any term or provision of this letter agreement that is invalid or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity



89









 







or unenforceability without rendering invalid or unenforceable the remaining terms or
provisions of this letter agreement or affecting the validity or enforceability of any of the terms
or provisions of this letter agreement in any other jurisdiction.



     7. This letter agreement may be executed by the parties hereto in counterparts and by
facsimile copy, each of which shall be deemed an original but all of which shall constitute one and
the same instrument.



     This letter agreement is signed as of the date first written above.



	 	 	 	 	 
	 	[NEWCO CORPORATION]

 	 
	 	
 	 
	 	Name:  	 	 	 
	 	Title:  	 	 	 



Accepted and Agreed:




	 	 	 	 	 
	BHN Spectrum Investments, LLC

 	 	 
	By:  	 	 	 
	 	Name:  	 	 	 
	 	Title:  	 	 	 
	 
	Comcast MVNO II, LLC

 	 	 
	By:  	 	 	 
	 	Name:  	 	 	 
	 	Title:  	 	 	 
	 
	Time Warner Cable Inc.

 	 	 
	By:  	 	 	 
	 	Name:  	 	 	 
	 	Title:  	 	 	 



90









 






	 	 	 	 	 



	 	 	 	 	 
	Sprint Spectrum L.P.

 	 	 
	By:  	 	 	 
	 	Name:  	 	 	 
	 	Title:  	 	 	 
	 




91