exv10w4






Exhibit 10.4




CONFIDENTIAL TREATMENT REQUESTED UNDER

17 C.F.R. SECTIONS 200.80(b)(4), 200.83 AND 230.24b-2.

[*****] 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.




Amended and Restated




Enhanced In-Building Coverage Deployment Agreement



     This Amended and Restated Enhanced In-Building Coverage Deployment Agreement (“Agreement”) is
dated as of the date the last Party (defined below) signs this Agreement (“Amended and Restated
Effective Date”) and is between Clear Wireless LLC (“Clearwire”) and Sprint Solutions, Inc., as
contracting agent on behalf of the applicable Sprint affiliated entities providing wireless
telecommunications equipment and services (“Sprint”). Clearwire and Sprint may be referred to
individually as a “Party” or collectively as the “Parties.”



Background



A. Whereas, Clearwire and its Affiliates own and operate the Clearwire Network and provide wireless
broadband services in the United States; and



B. Whereas, Sprint is purchasing wireless broadband services from Clearwire for resale to
Customers; and



C. Whereas, Clearwire and Sprint desire to enhance in-building coverage of the Clearwire Network in
certain locations; and



D. Whereas, Clearwire, Sprint, and other strategic investors entered into the 4G MVNO Agreement
dated November 28, 2008 and as amended by Sprint and Clearwire (“4G MVNO Agreement”); and



E. Whereas, this Agreement sets forth the terms under which the Parties will jointly deploy and
operate an enhanced in-building wireless coverage solution for businesses; and



F. Whereas, this Agreement is a wireless infrastructure agreement between Clearwire and Sprint.



Now, therefore, in consideration of the mutual covenants and obligations contained herein, and for
other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged,
Clearwire and Sprint hereby agree as follows:




Agreement



1. Definitions. Capitalized terms used herein that are not defined in this Agreement shall have the
meanings assigned to them in the 4G MVNO Agreement.




     “4G MVNO Agreement” has the meaning defined in Background section D.



     “4G Services” means the wireless broadband access services provided by Clearwire over the
Clearwire Network.



     “Affiliate” is a legal entity that directly or indirectly controls, is controlled by, or is
under common control with the party. An entity is considered to control another entity if it owns,
directly or indirectly, more than 50% of the total voting securities or other similar voting
rights.



     “ATP” has the meaning defined in section 9.1.



     “BTS” means base transceiver station.



     “Claim” and “Claims” has the meaning defined in section 19.1.


 
	 	 	 	 	 	 	 

	 
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     “Clearwire Network” means the WiMAX network (or any other network) deployed, owned or operated
by Clearwire or any of its Affiliates in the United States.



     “Clearwire Territory” means all commercially launched CMAs and any CMAs that are set forth in
the Quarterly Roadmap.



     “CMA” means cellular market area.



     “CNS Build Forecast” has the meaning defined in section 6.7.



     “Confidential Information” has the meaning defined in section 15.



     “Customers” are the entities that Sprint has entered or will enter into contracts with for
Sprint to provide In-Building Solutions.



     “Design Review Process” means Clearwire’s reviews described in sections 3.2, 3.2.1, and 6.2.



     “Designs” has the meaning defined in section 7.2.



     “Device(s)” means Customers’ wireless devices, including without limitation data cards,
smartphones, and embedded devices that connect to the Clearwire Network or, in the case of WLAN
Solutions, that connect to the WLAN Solution.



     “Discloser” has the meaning defined in section 15.



     “EBS” means educational broadband service.



     “Equipment” means hardware that Clearwire has certified or is in the process of certifying for
use on the Clearwire Network that Sprint will use in providing the In-Building Solution.



     “FCC” means the Federal Communications Commission.



     “GHz” means gigahertz.



     “High Density Markets” means [*****].



     “In-Building Solutions” are systems that are built under this Agreement and generate or repeat
the Clearwire Network radio frequency and distributes the signal within a specific building or
campus and include WLAN Solutions. In-Building Solutions are generally comprised of the following:
(a) equipment that generates or repeats the Clearwire Network’s radio frequency only; (b) the
system that internally distributes the Clearwire Network’s radio frequency only; and (c) backhaul.



     “Indoor BTS” means a BTS with antennas that are installed within a building and are targeted
to provide enhanced coverage within a building.



     “Indoor Picocell” means a picocell with antennas that are installed within a building and are
targeted to provide enhanced coverage within a building.



     “IP Claim” has the meaning defined in section 19.2.



     “Launched Market” means a market or cell site that is identified as a launched market or cell
site in Clearwire’s Clearsky tool. For the avoidance of doubt, any market or cell site that is
identified as a “substantial services” market or cell site is expressly excluded from the
definition of Launched Market.



     “Locations” has the meaning defined in section 3.1.



     “MHz” means megahertz.



     “NOC” means network operations center.



     “New York City Boroughs” means [*****].



     “Non-WLAN Solutions Fees” means the fees set out in section 5.2.3.


 
	 	 	 	 	 	 	 

	 
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     “Operational Facilities” has the meaning defined in section 3.3.2.



     “Outdoor BTS” means a BTS with antennas that are installed outside of a building and are
targeted to provide enhanced coverage outside of a building.



     “Outdoor Picocell” means a picocell with antennas that are installed outside of a building and
are targeted to provide enhanced coverage outside of a building.



     “Recipient” has the meaning defined in section 15.



     “Restricted Venue” has the meaning defined in section 3.2.



     “Retail Stores” has the meaning defined in section 3.3.2.



     “RF Change” has the meaning defined in section 6.4.



     “SOW” means a statement of work under this Agreement.



     “Sprint-Controlled Facility” and “Sprint-Controlled Facilities” has the meaning defined in
section 3.3.



     “Sprint End Users” has the meaning defined in section 6.6.



     “Term” has the meaning defined in section 2.



     “Test Results” has the meaning defined in section 7.2.



     “TDD” means time division duplexing.



     “Wireless Broadband Services” has the meaning defined in section 1 of the 4G MVNO Agreement.



     “WLAN and Macro Subscriber” means Devices that connect to a WLAN Solution, connect to the
Clearwire Network, and are not Low MRC M2M Devices as defined in section 3.2.5 of Schedule 7.1 of
the 4G MVNO Agreement.



     “WLAN Only Subscriber” means Devices that only connect to a WLAN Solution, do not connect to
the Clearwire Network, and are not Low MRC M2M Devices as defined in section 3.2.5 of Schedule 7.1
of the 4G MVNO Agreement.



     “WLAN Solution” means an In-Building Solution that [*****]



     “WLAN Solutions Fees” means the fees set out in section 5.3.2.


2. Term. The term of this Agreement begins on the Effective Date and ends upon the earlier of (a)
termination of the Agreement by either Party pursuant to Section 16; or (b) termination or
expiration of the 4G MVNO Agreement (“Term”).



3. Locations




     3.1 Customer Locations. Subject to the provisions in this Agreement, Sprint may deploy
In-Building Solutions as set forth in a SOW, substantially in the form attached hereto as Schedule
A, at Customer’s property (“Locations”).



          3.1.1 Locations in Launched Markets. Subject to the provisions in this Agreement, in Launched
Markets, Sprint may deploy In-Building Solutions at any Location in Sprint’s sole discretion.




          3.1.2 Locations Outside of Launched Markets. For Locations outside of Launched Markets, Sprint
must obtain Clearwire’s prior written approval. Clearwire’s approval will not be unreasonably
withheld, and Clearwire must give Sprint its answer on the Locations within ten (10) business days
of Sprint’s request. If Clearwire does not respond within ten (10) business days, Sprint will
escalate the request to the most senior executive officer in Clearwire’s wholesale department, who
will use commercially reasonable efforts to respond within three (3) business days. If no response
is received, Sprint will escalate the request to Clearwire’s Chief Operating Officer or the
equivalent.




	 	 	 	 	 	 	 

	 

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     3.2 Reasonably Required to Meet Needs. Sprint may deploy any In-Building Solution in areas
reasonably required to serve a specific customer so long as such customer has a contract with
Sprint for 4G wireless services. If an In-Building Solution is broader than is reasonably required
to serve a specific customer’s reasonable needs as determined by Clearwire in its reasonable
discretion during the Design Review Process, then Sprint must obtain Clearwire’s prior written
approval before deploying the In-Building Solution. Clearwire’s approval will not be unreasonably
withheld. Clearwire will give Sprint its determination as to whether a design meets the requirement
in this section 3.2 when Clearwire completes the Design Review Process. If Clearwire denies the
design, then Clearwire and Sprint will discuss Clearwire’s reasons in sufficient detail to allow
Sprint to submit another design if Sprint so decides.



          3.2.1 Restricted Venues. [*****].




     3.3 Additional Sprint Locations. Subject to the provisions of this Agreement, in addition to
the Locations described in section 3.1 (Customer Locations), during the Term, Sprint may also
deploy In-Building Solutions in any Sprint-owned or leased facilities (each a “Sprint-Controlled
Facility” and collectively the “Sprint-Controlled Facilities”).



          3.3.1 For the avoidance of doubt, a facility that is leased by Sprint (such as a call center
or retail sales location in a mall) or subject to shared use by Sprint (such as a
distribution/shipping center), and used by Sprint for its own business purposes shall be deemed to
be a Sprint-Controlled Facility.




          3.3.2 Sprint-Controlled Facilities consists of two subgroups: (a) retail stores Sprint uses to
sell wireless products and services (“Retail Stores”); and (b) facilities that Sprint uses for
operational purposes, such as call centers or distribution centers (“Operational Facilities”). The
Retail Stores and Operational Facilities collectively make up Sprint-Controlled Facilities.




     3.4 Approved Sprint-Controlled Facilities. Schedule A-1, which is attached hereto and
incorporated herein by reference, lists the approved Retail Stores as of the Amended and Restated
Effective Date. Schedule A-2, which is attached hereto and incorporated herein by reference, lists
the approved Operational Facilities as of the Amended and Restated Effective Date. Sprint may, from
time to time, amend Schedules A-1 and A-2 to remove Sprint-Controlled Facilities or add additional
Sprint-Controlled Facilities, including without limitation and by way of example only, Sprint call
centers, executive briefing centers, and Sprint retail stores, provided that before any such
amendment to Schedules A-1 or A-2 becomes effective, Sprint shall notify Clearwire in writing and,
for new Locations that are outside of Launched Markets, obtain Clearwire’s prior written consent,
which consent shall not be unreasonably withheld or delayed.



     3.5 Sprint-Controlled Facilities are Locations. Each Sprint-Controlled Facility shall be
deemed to be a “Location” as defined in section 3.1 and each shall be subject to all of the terms
and conditions of this Agreement. In addition, Sprint reserves the right to remove Equipment from
Sprint-Controlled Facilities following deployment if Sprint determines or a third party asserts
that Sprint’s lease rights do not permit the location or operation of the Equipment at the
Sprint-Controlled Facility.


4. Spectrum




     4.1 Clearwire grants Sprint the limited right, subject to the terms of this agreement, to
resell services over Clearwire’s spectrum solely in the Locations, in accordance with the 4G MVNO
Agreement.



     4.2 Except as specifically set out in this Agreement in sections 4.2.1, 4.2.2, 7.6, and 7.6.1,
nothing in this Agreement will limit in any manner Clearwire’s rights to use and manage (including
manage, modify, renew, let expire, etc. its spectrum leases) for any lawful purpose any spectrum
that Clearwire (or any of its Affiliates) has the right to use under any license, lease, sublease,
or otherwise in the Locations covered by this Agreement. If any provision in this Agreement has the
effect of limiting Clearwire’s rights to use and manage its spectrum in the Locations covered by
this Agreement, Clearwire will immediately provide written notice to Sprint.


 
	 	 	 	 	 	 	 

	 

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Clearwire and Sprint will then cooperate with each other and undertake commercially reasonable
efforts to resolve such adverse impact within a reasonable time frame and attempt to reduce the
impact to Customers.




          4.2.1 Sale of Spectrum. In areas inside and outside of a Launched Market, Sprint’s rights and
Clearwire’s obligations will be as set forth in section 13.4 of the 4G MVNO Agreement. For purposes
of interpreting section 13.4 of the 4G MVNO Agreement, In-Building Solutions in and out of a
Launched Market are “Wireless Broadband Services.”




          4.2.2 Management of Spectrum Leases. [*****].




     4.3 For Locations outside of Launched Markets and for WLAN Solutions inside Launched Markets,
if Clearwire determines in good faith that due to Clearwire’s obligations under this Agreement that
it owes additional spectrum lease fees or that it will incur any other spectrum-related costs that
are in excess of the amount that would otherwise have been due from or incurred by Clearwire, then
when Clearwire reviews and approves Sprint’s design for a Location (as set forth in section 6.2),
Clearwire will provide sufficient written notice to Sprint of any additional costs for that
Location. If Sprint decides to move forward with the Location, Sprint will pay the identified,
additional costs for that Location.



          4.3.1 For WLAN Solutions:




               (a) Sprint will be responsible for (i) all regulatory costs; (ii) any regulatory fees; or
(iii) FCC spectrum leasing or licensing requirements. Sprint agrees that the operation for the WLAN
Solution is at Sprint’s cost and expense and in accordance with the rules and regulations of the
FCC. Sprint will pay all regulatory costs related to the WLAN Solution and Clearwire’s actual costs
associated with enabling the use of Clearwire’s spectrum for the WLAN Solution.



               (b) To the extent required by Clearwire or the FCC, Sprint will prepare, at its cost, and
submit to Clearwire for processing with the FCC and/or the third party license holder (Clearwire’s
Lessor) any documentation required to meet FCC or EBS lease requirements, including consent, lease,
or sublease agreements.



               (c) Sprint will take all necessary steps to ensure that deployment of the WLAN Solutions do
not cause material interference to any operations of Clearwire or other network operators. Sprint
will take all necessary steps to protect and preserve the status of the licenses associated with
the WLAN Solutions. Sprint agrees to deploy the WLAN Solutions within Clearwire’s approved
parameters.



               (d) Sprint agrees to indemnify Clearwire against any damages caused by Sprint’s operation of
the WLAN Solutions, including, without limitation, the payment of any fines levied by the FCC or
other regulatory authority for any improper use of spectrum, such as, but not limited to, material
interference with other channels or any claims that any WLAN Solution was improperly undertaken in
violation of FCC requirements or regulations.



               (e) Sprint acknowledges and agrees that any rights granted to Sprint hereunder with respect to
spectrum are personal to Sprint and may not be assigned or used for any purpose outside of the
express purposes provided for under this Agreement.



     4.4 If Clearwire discovers any material interference (as determined by Clearwire in a
commercially reasonable manner) with any In-Building Solution that (i) is outside the normal
operating condition of the In-Building Solution, (ii) materially impairs the quality of the service
provided by Clearwire to its customers, and (iii) is caused by Sprint or its agents, employees,
representatives or Customers, Clearwire will promptly notify Sprint, and Sprint will promptly cease
the act(s) constituting such interference. In the case of any such interference caused by Sprint
or its agents or Customers, Clearwire, concurrent with notice to Sprint, may require that Sprint
immediately correct or, if unable to correct, immediately shut down the applicable In-Building
Solution in the event that the interfering act(s) cause material degradation to Clearwire’s service
or any other network operator’s service or otherwise constitutes an emergency. In other instances
of interference, Clearwire will provide 48 hours notice to Sprint prior to requiring Sprint to shut


 
	 	 	 	 	 	 	 

	 

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down the applicable In-Building Solution if the interference is not remedied within such 48 hour
timeframe.




          4.4.1 Sprint will provide a 24/7 contact for each Location, which is CNS Care.




     4.5 Notwithstanding any other provision of this Agreement, Clearwire has the ultimate
operational control and authority over its licensed and/or leased spectrum on which the Equipment
operates, including, but not limited to, the authority to manage the Equipment (and the authority
to reconfigure or shut down the Equipment) as necessary to comply with regulatory requirements; to
resolve RF safety or other safety issues; or to respond to material interference issues (in
accordance with the interference provisions set forth in section 4.4 above).



          4.5.1 Clearwire does not have physical access to the Sprint-Controlled Facilities. In order to
comply with the provisions of section 4.5, Sprint will promptly comply with Clearwire’s
instructions with respect to the Equipment as described in section 4.5.




          4.5.2 If due to a Customer’s requirement (such as a lease agreement with a third party
landlord requires that Sprint is only permitted to deploy telecommunications technologies at that
location for which it is licensed and/or authorized by the FCC), then Clearwire and Sprint shall
work together in good faith to deploy the 4G Services to such Customer and Clearwire will use good
faith efforts to provide documentation prepared by Sprint that Customer may require at Sprint’s
cost.




     4.6 Clearwire will determine the spectrum allocation for each particular Location and will use
commercially reasonable efforts to defer to the lowest cost option among Clearwire’s spectrum
rights (such as the use of BRS first) to the extent Clearwire can reasonably accommodate the lowest
cost option within its network designs. At a minimum, the spectrum allocation for each Location
will take into account each Customer’s requirements.


5. Financial Terms




     5.1 Sprint will pay Clearwire’s reasonable costs for engineering review time and other time
spent reviewing, evaluating, and assessing the designs as set out in Schedule A-3. After Sprint
knows of a potential In-Building Solution, Sprint will enter it into Clearwire’s WCAT tool. Sprint
will request Clearwire to perform design reviews via an email request.



          5.1.1 For all design and implementation work referenced on Schedule A-3 that Clearwire has
completed before March 31, 2011, Clearwire will send (if it has not already sent) Sprint an
invoice. [*****].




          5.1.2 [*****].




          5.1.3 Starting with work done on and after April 1, 2011, on a monthly basis Clearwire will
provide Sprint with an itemized list of what Clearwire proposes to deduct from the prepayment. At a
minimum, the itemized list must include for each project for which Clearwire is charging Sprint:
(a) Sprint’s name of the project (provided Sprint provides the same to Clearwire); (b) Sprint’s
site identification number (provided Sprint provides the same to Clearwire); (c) the itemized
services for which Clearwire is charging Sprint per Schedule A-3; and (d) the prepayment balance.
Within ten (10) business days of Sprint receiving Clearwire’s itemized list, Sprint will give
Clearwire a reconciliation list. Once the reconciliation list is agreed upon, Clearwire can deduct
the agreed upon amount from the prepayment balance. Sprint will provide Clearwire with the project
estimated budget for each In-Building Solutions. By September 30 of each year, Sprint will provide
a report that summarizes the inventory and cost of each In-Building Solution completed from January
to June of such year. By March 30 of each year, Sprint will provide a report that summarizes the
inventory and cost of each In-Building Solutions completed from July to December of such year.




          5.1.4 The parties agree that they will conduct an annual good faith review of the costs for
design services as set out on Schedule A-3 and adjust Schedule A-3 as may be required as a result
of such review.




     5.2 The following pricing terms will apply:


 
	 	 	 	 	 	 	 

	 

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          5.2.1 Charges for Wireless Broadband Services on In-Building Solutions. For repeater-based
In-Building Solutions that amplify an existing signal of the macro Clearwire Network, Clearwire
will charge Sprint for and Sprint will pay for Wireless Broadband Services as set out in section 3
of Schedule 7.1 of the 4G MVNO Agreement. For all other In-Building Solutions, Clearwire will not
charge Sprint for any Sprint End Users’ 4G data usage that accesses the Clearwire Network through
the In-Building Solution.



          5.2.2
WLAN Solutions Fees. For WLAN Solutions:[*****].




          5.2.3 Non-WLAN Solutions Fees.




          [*****].




          5.2.7 For WLAN Solutions, no later than the tenth day of each month, Sprint will provide a
report to Clearwire that will include at a minimum the following information: (a) for the
just-completed billing month, (i) the total number of billed WLAN Only Subscribers and WLAN and
Macro Subscribers; (ii) for WLAN Solutions that are not located in High Density Markets, the number
of picocells and the number of BTSs that are deployed and providing commercial service; (iii) for
WLAN Solutions that are located in High Density Markets, the number of Indoor Picocells, Outdoor
Picocells, Indoor BTSs, and Outdoor BTS that are deployed and providing commercial service; (iii)
for WLAN Solutions that are located in the New York City Boroughs, the number of Indoor Picocells,
Outdoor Picocells, Indoor BTSs, and Outdoor BTS that are deployed and providing commercial service;
and (b) for the prior billing month, a network report that will include (i) each WLAN Solution
project name; (ii) each WLAN Solution site identifier; and (iii) the combined number of WLAN Only
Subscribers and WLAN and Macros Subscribers associated with each WLAN Solution; and (iv) [*****].




          5.2.8 For In-Building Solutions (except WLAN Solutions), no later than the tenth day of each
month, Sprint will provide a report to Clearwire that will include at a minimum the following
information: (a) for the just-completed billing month, a network report that will include (i) the
total number of BTSs deployed and connected to the Clearwire Network, (ii) the total number of
picocells deployed and connected to the Clearwire Network, and (iii) [*****].




          5.2.9 For the monthly recurring fees described in section 5.2 and its subsections, the
invoicing and payment terms are as set out in section 7.4 of the 4G MVNO Agreement.




     5.3 Retention of Title. For the avoidance of doubt, during the Term, all In-Building
Solutions subject to this Agreement shall be owned and operated by Sprint, and Sprint shall at all
times hold and retain title to the Equipment at each Location.



     5.4 Payment Terms. For all charges that are not design and implementation work referenced on
Schedule A-3 or a monthly recurring fee described in section 5.2 and its subsections that Sprint
agrees to pay Clearwire under this Agreement, Clearwire will provide Sprint with a quote (if
applicable); Sprint will send Clearwire a purchase order; once the work is complete, Clearwire will
send Sprint an invoice; [*****].


6. Design of In-Building Coverage




     6.1 Sprint and Clearwire will work together in good faith to (a) create design guidelines and
templates for the In-Building Solutions, which Sprint will use in deploying the Equipment at the
Locations, and (b) ensure there is sufficient backhaul capacity in the Clearwire Territory to meet
Customer requirements.



     6.2 Clearwire will review and approve Sprint’s designs within five (5) business days after
receipt of same by Clearwire. Clearwire’s approval of a design cannot be unreasonably withheld.


 
	 	 	 	 	 	 	 

	 

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     6.3 Clearwire will provide Sprint the following assistance for each Location: (a)
identification of donor site; (b) assistance in identifying backhaul requirements, such as
design guidelines or information related to backhaul; and (c) assistance in identifying spectrum
related issues.



     6.4 For repeaters (whether installed in a Sprint-Controlled Facility or a Customer Location),
the Parties will follow the design process currently in use, which is as follows: (i) Sprint will
provide a forecast of all projects prior to implementation; (ii) designs will be tracked through
Clearwire’s ISR process; (iii) Sprint will conduct a donor site evaluation, submit a request to
Clearwire for coverage and design analysis; and (iv) Clearwire Local Market RF Engineer will review
the design package and provide feedback and approval within five (5) business days. Clearwire will
use commercially reasonable efforts to provide the Sprint designated point of contact with
reasonable prior written notice of any RF changes affecting the frequency, azimuth, or downtilt of
the donor signal (“RF Change”) that will require a re-tune of Equipment or will cause In-Building
Solutions to operate improperly. Sprint will be solely responsible for its costs to re-tune or
otherwise modify repeaters in order for such repeaters to properly operate, and remain certified
for use, on the Clearwire Network or to redirect donor signals as the Clearwire Network is
expanded. Clearwire will give reasonable consideration to requests made by Sprint concerning
impacts of RF Changes, provided however that nothing herein shall obligate Clearwire to take or
refrain from taking any actions with respect to RF Changes based on Sprint requests, and Clearwire
shall have the right to manage and/or implement RF Changes in its sole discretion.



     6.5 Sprint has sole discretion in selecting the place within the Sprint-Controlled Facility to
deploy the Equipment.



     6.6 WLAN Solutions.



     [*****].



          6.6.1 For WLAN Solutions (whether installed in a Sprint-Controlled Facility or a Customer
Location), the Parties will follow the design process currently in use, which is as follows: (i)
Sprint will provide a forecast of all projects prior to implementation; (ii) designs will be
tracked through Clearwire’s ISR process; (iii) Sprint will submit a request to Clearwire for
coverage and design analysis; and (iv) Clearwire Local Market RF Engineer will review the design
package and provide feedback and approval within ten (10) business days.




          6.6.2 Clearwire will use commercially reasonable efforts to provide Sprint with reasonable
prior written notice of any RF Change that will require a re-tune of Equipment or will cause
In-Building Solutions to operate improperly. Sprint will be solely responsible for its costs to
re-tune or otherwise modify WLAN Solutions in order for such WLAN Solutions to properly operate,
and remain certified for use, on the Clearwire Network. If Sprint requests, Clearwire will give
reasonable consideration to concerns about the impacts of RF Changes, provided however that nothing
herein shall obligate Clearwire to take or refrain from taking any actions with respect to RF
Changes based on Sprint requests, and Clearwire shall have the right to manage and/or implement RF
Changes in its sole discretion.




          6.6.3 All Sprint designs and implementations of WLAN Solutions shall comply with Clearwire’s
macro network TDD ratio as applicable to the specific CMA, unless agreed otherwise in writing.




          6.6.4 Sprint, at its cost, will provide Clearwire remote access, read-only capability into
each of the WLAN Solutions so that Clearwire may review frequency configuration (including the
spectrum frequency being used and any associated alarms if the Equipment operates out of
specification). Clearwire may request Sprint to turn the WLAN Solution or any portion thereof on or
off or to change the frequency used in order to mitigate and otherwise address material
interference issues as set forth in section 4.4.




     6.7 Forecasting. No later than the fifth day of each calendar month, Sprint will provide to
Clearwire a rolling forecast (the “CNS Build Forecast”) that is updated monthly. The CNS Build
Forecast will include: (i) a six (6) month forecast for the estimated number of new


 
	 	 	 	 	 	 	 

	

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Locations based on projected sales; (ii) a three (3) month forecast of the type of In-Building
Solution based on current design estimates; and (iii) a three (3) month forecast of the projected
12-month subscriber levels based on targeted design capacity. The Parties agree that all forecasts
are good faith estimates only, and Sprint has no liability to Clearwire based on the forecasts.



7. Equipment and Certification Process




     7.1 Sprint will purchase, provision and own the Equipment that is needed for the In-Building
Solution at each Location.



     7.2 Sprint will be solely responsible for determining the business requirements and
architecture of all In-Building Solutions. Sprint will provide the design for each In-Building
Solution to include architectural design, use cases, capacity load estimates and network impacts,
network and RAN designs, test requirements, bills of materials, call flows and schedules, all as
applicable (the “Designs”). Clearwire will review the Designs and provide approval or rejection via
email to the designated contact within fifteen (15) business days of submission of a complete
Design to Clearwire. Once Design approval has been received, Sprint will test the Design and
provide the following test results to Clearwire for review: MOPs, KPI/KQI definitions, operations
monitoring and maintenance plan, test plan and results and descriptions of any open issues and
proposed mitigation (the “Test Results”). Clearwire will then provide approval or rejection of the
documented Test Results via email to the designated contact with five (5) business days of
submission of the complete Test Results to Clearwire. Upon approval of the Test Results, Sprint
will complete a first office implementation and test. Upon conclusion, Sprint will supply the
following to Clearwire: full end to end test of deployment process and interaction between Sprint
and Clearwire, test results and open issues and recommendation for certification. Clearwire will
then provide certification or notice of failure to certify via email to the designated contact with
5 business days of submission of the complete first office implementation and testing documentation
to Clearwire.



     7.3 Clearwire will provide Sprint with a complete, current list of Equipment certified for use
on the Clearwire Network. Sprint will use only Equipment that Clearwire has certified or is in the
process of certifying for use on the Clearwire Network at the time Sprint starts to install the
In-Building Solutions. Clearwire will use commercially reasonable efforts to review Sprint’s
suggestions for Equipment, with the understanding that such review will not interfere with or delay
Clearwire’s own ongoing network deployment activities.



     7.4 When negotiating with its Equipment vendors, Clearwire will use commercially reasonable
efforts to negotiate the right for Sprint to buy Equipment and associated software under the same
terms as between Clearwire and such 4G Equipment vendors, but failure of a vendor to offer Sprint
the same terms and prices will not constitute default under this Agreement. Sprint will be
financially liable for its purchases under such agreements. When negotiating with its Equipment
vendors Sprint will use commercially reasonable efforts to negotiate the right for Clearwire to buy
Equipment and associated software under the same terms as between Sprint and such 4G Equipment
vendors, but failure of a vendor to offer Clearwire the same terms and prices will not constitute
default under this Agreement. Clearwire will be financially liable for its purchases under such
agreements.



     7.5 In Clearwire’s discretion, Clearwire may at any time during the Term (or upon the
expiration or termination of this Agreement at its option) elect to purchase all right, title, and
interest in any and all Equipment purchased and installed by Sprint that (a) generates or repeats
the Clearwire Network radio frequency only and no other radio frequency; (b) distributes Clearwire
Network’s signal and only the Clearwire Network signal within a specific building or campus. If a
distribution system is a shared system, Sprint is not required to sell Clearwire the distribution
system but Sprint will continue to provide Clearwire access to the distribution system at no charge
for as long as Clearwire needs to fulfill its obligations in this Agreement. Clearwire must
purchase all Equipment contained in an individual In-Building Solution. If Clearwire so elects,
Clearwire will provide Sprint with written notice at least 90 days prior to the purchase date of
such election, identifying the Equipment in which Locations that Clearwire intends to purchase.


 
	 	 	 	 	 	 	 

	 

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          7.5.1 Equipment Purchase Price. Clearwire will pay Sprint an amount equal to Sprint’s cost for
the In-Building Solution, which is defined as Sprint’s (a) documented original purchase price for
all applicable Equipment; (b) reasonable and documented engineering costs; and (c) reasonable and
documented installation costs (all discounted on a straight line depreciation basis pro-rated over
a seven (7) year period).




          7.5.2 Equipment Purchase Terms. For the Equipment that Clearwire purchases, Sprint will, to
the extent that it has the legal right to do so, taking into account Sprint’s agreements with
various third parties, transfer all rights, licenses, warranties, etc. that Sprint is able. Sprint
will cooperate with Clearwire’s due diligence process to aid Clearwire in its determination of what
Sprint is capable of transferring. The Equipment purchase transaction will be documented in a form
that contains the same or substantially similar terms as those in Schedule B, which is attached
hereto.




          7.5.3 Operating, Monitoring, and Maintaining the Equipment. After Clearwire purchases the
Equipment, Clearwire will, at its cost, continue to operate, monitor, and maintain the In-Building
Solution for the lesser of: (a) the length of any remaining term in the contract between Sprint and
Customer; or (b) five (5) years from the date Clearwire purchases the Equipment.




               (a) After Clearwire purchases the Equipment, for In-Building Solutions that are not WLAN
Solutions, Clearwire will charge Sprint for Wireless Broadband Services on the In-Building
Solutions that are not WLAN Solutions as set out in section 3 of Schedule 7.1 of the 4G MVNO
Agreement, and Sprint will no longer pay Clearwire the fees described in section 5.2.3 of this
Agreement.



               (b) After Clearwire purchases the Equipment, for WLAN Solutions, Clearwire will not charge
Sprint for any Wireless Broadband Services on the WLAN Solution, but Sprint will pay the fees
described in section 5.2.2 of this Agreement.



          7.5.4 Ownership of Customer Relationship.




          [*****]



     7.6 Nothing herein shall be interpreted or deemed to prevent or otherwise restrict Clearwire
from deploying technology other than WiMAX over the Clearwire Network in its sole discretion.



          7.6.1 Clearwire will work with Sprint in good faith to understand the implications on the
In-Building Solutions, Equipment, and Locations. For Locations inside of Clearwire Territory, the
In-Building Solution will not need to transition to a different technology until Clearwire (a) no
longer operates WiMax in the area of the Location, or (b) determines in its reasonable discretion
that it is no longer economically viable to maintain Sprint on WiMax in such Locations, or (c)
otherwise reasonably determines that it must transition Sprint to another technology. Clearwire
will give Sprint commercially reasonable notice and commercially reasonable time to transition the
Locations to a different technology.



8. Installation




     8.1 The parties will use commercially reasonable efforts to develop the processes and
interfaces for installation of Equipment at each Location within 45 days of the Amended and
Restated Effective Date.



     8.2 For each Location, Clearwire will provide maps to Sprint showing possible donor sites and
the site identification for the Location.



     8.3 Sprint will invite Clearwire to join the site walk of each Location prior to Sprint
beginning the installation.



     8.4 Sprint will install the In-Building Solution at each Location.


 
	 	 	 	 	 	 	 

	 

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     8.5 At the design stage, Sprint and Clearwire will determine the type of backhaul solution for
the Location. Clearwire will work with Sprint on each design to ensure that there is appropriate
backhaul capacity for projected numbers of users and capacity. Clearwire will design the backhaul
and ensure that appropriate facilities are available in the core. For any Location, whether in or
out of Clearwire Territory, Sprint will be responsible for identifying, procuring, and paying for
any backhaul required to support the Location. If Sprint wants to consider Clearwire as a potential
installation vendor of microwave backhaul services, then Sprint will ask Clearwire for a quote that
will include the total cost of service for delivery of microwave backhaul services. If Sprint
selects Clearwire, Sprint will pay the quoted total cost of service.



     8.6 Clearwire and Sprint will work together in good faith to develop alarming for all
In-Building Solutions, including repeaters, which are not WLAN Solutions.


9. Acceptance Test Plan




     9.1 Clearwire and Sprint will work together in good faith to develop the acceptance test plan
(“ATP”) and any processes to support the ATP. The ATP will include joint Sprint-Clearwire testing
for coverage, throughput and alarming.



     9.2 Sprint will conduct the acceptance tests with each Customer and inform Clearwire when the
on-site acceptance test is completed successfully.



     9.3 Sprint is responsible for all costs of performing the acceptance testing, including
re-tests and corrective action needed as a result of the acceptance testing except those that are
associated with standard procedures that Clearwire performs for acceptance testing.



     9.4 As part of the acceptance test, Sprint and Clearwire will work together to ensure that the
installed In-Building Solution is operational on the Clearwire Network and that the alarms are
visible for the installed Equipment that Clearwire will monitor.



     9.5 Clearwire and Sprint will work together in good faith to develop a process to accept the
In-Building Solution and transition it to Clearwire for monitoring.


10. Operation




     10.1 Whether in or out of Clearwire Territory, Clearwire will monitor the In-Building Solution
for solutions that are not WLAN Solutions. To allow for Clearwire’s monitoring, each Location will
have a unique naming convention and IP address that allows for identification as an In-Building
Solution Location. Clearwire will receive alarms at a designated Clearwire service center for all
In-Building Solutions. Clearwire is responsible for initial triage and problem isolation for all
Locations. Clearwire will open a ticket with Sprint within fifteen (15) minutes of an alarm.



     10.2 If after initial triage, the Parties determine that the issue is with the Clearwire
Network, backhaul that Clearwire provides (in Clearwire Territory only), or the designated
termination point into the Clearwire Network, then Clearwire will resolve the issue and provide
Sprint status updates every hour and a half until service is restored.



     10.3 If after initial triage, the Parties determine that the issue is with the In-Building
Solution or with backhaul that Sprint provides (outside of Clearwire Territory only), then Sprint
will resolve the issue.



     10.4 Clearwire and Sprint will work together in good faith to modify the existing
Sprint-Clearwire outage and operations processes to incorporate any changes needed to support
In-Building Solution requirements. Clearwire will provide Sprint with reasonable support as Sprint
maintains and fixes the In-Building Solutions.



     10.5 For In-Building Solutions that are not WLAN Solutions, Clearwire will notify Sprint via
the existing, agreed-upon NOC to NOC notification process, which is a flash electronic
notification, of issues that will impact or have impacted an In-Building Solution according to the
following schedule:[*****]


 
	 	 	 	 	 	 	 

	 

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11. Maintenance. Sprint will have primary responsibility for maintenance; however Sprint and
Clearwire will work together in good faith to develop support processes concerning the maintenance
process and support of the Equipment used in the In-Building Solutions.




     11.1 For In-Building Solutions other than WLAN Solutions inside of the Clearwire Territory:




          11.1.1 Clearwire is responsible for maintenance and ongoing support of the Clearwire Network
and any Equipment that Clearwire purchases and owns in support of the extension of the Clearwire
Network to the Location.




          11.1.2 If Clearwire needs to perform maintenance at a Location or on the backhaul connectivity
to the Location, Clearwire will open a Change Management (CMC) ticket with Sprint so that Sprint,
if necessary, can notify Customer.




          11.1.3 Sprint is responsible for the maintenance and any ongoing support for the Equipment
that is purchased and owned by Sprint and which is used in support of Sprint’s Customers.




     11.2 For In-Building Solutions other than WLAN Solutions outside of the Clearwire Territory:



          11.2.1 Clearwire is responsible for monitoring and Sprint is responsible for maintaining any
Equipment that is required for the backhaul circuit to be connected into the Clearwire Network.




          11.2.2 Sprint is responsible for testing and maintaining the backhaul circuit.




          11.2.3 Sprint is responsible for maintaining all Equipment that is installed at the Location.




          11.2.4 Sprint is responsible for monitoring and maintaining the circuit that is installed from
the Location outside of Clearwire Territory to the designated termination point into the Clearwire
Network located inside Clearwire Territory. The Parties will work together in good faith to develop
appropriate maintenance processes to ensure restoration of service to Customers after an outage.




          11.2.5 Notwithstanding the foregoing, Clearwire reserves the right, in its reasonable
discretion, to participate in the maintenance of installations outside of Clearwire Territory if
Clearwire reasonably determines that Sprint’s maintenance is insufficient.




     11.3 For WLAN Solutions inside or outside of the Clearwire Territory:



          11.3.1 Sprint is responsible for monitoring and maintaining any Equipment that is required for
the backhaul circuit.




          11.3.2 Sprint is responsible for testing and maintaining the backhaul circuit.




          11.3.3 Sprint is responsible for maintaining all Equipment that is installed at the Location.




          11.3.4 Notwithstanding the foregoing, Clearwire reserves the right, in its reasonable
discretion, to participate in the maintenance of installations outside of Clearwire Territory at
Clearwire’s cost if Clearwire reasonably determines that Sprint’s maintenance is insufficient.



12. Reports. If Sprint needs specific CNS reports that Clearwire does not already provide under the
4G MVNO Agreement, then Clearwire and Sprint will work together in good faith to determine the CNS
specific reports that Clearwire will provide. If Clearwire determines that the cost to create the
CNS specific reports is material, then Clearwire will inform Sprint of its reasonable, actual costs
to create the report at the time the parties are initially discussing the CNS specific reports. If
Sprint decides to have Clearwire produce the CNS specific report, then Sprint will reimburse
Clearwire for its reasonable, actual costs.






	 	 	 	 	 	 	 

	 

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13. Service Level Agreements. Clearwire and Sprint will work together in good faith to develop a
single appropriate service level agreement which shall be applicable to all Customers. The parties
will use commercially reasonable efforts to develop the service level agreement within 45 days of
the Amended and Restated Effective Date.



14. Insurance




     14.1 Coverage. During the Term, Sprint and Clearwire each will maintain the following minimum
insurance coverage:[*****]




     14.2 Requirements. All insurance policies will be issued by companies licensed or authorized
to transact business in the state(s) where the Premises are located and that hold a current rating
of not less than A-, VII according to A.M. Best. Upon request, each Party will provide the other
Party with certificates of insurance or such other documentary evidence of insurance coverage,
such as an Internet accessible Memorandum of Insurance. With regard to the policies, each Party
will provide that the other Party be given not less than thirty (30) days’ prior written notice of
any intended cancellation of the policies.



15. Confidentiality. Neither Party will disclose the other Party’s Confidential Information (as
defined below), to any third party, except as expressly permitted in this Agreement. This
obligation will continue until 2 years after this Agreement terminates or expires. The Recipient
(as defined below) may disclose Confidential Information to its subsidiaries, affiliates, agents
and consultants with a need to know, if they are not competitors of the Discloser (as defined
below) and are subject to a confidentiality agreement at least as protective of the Discloser’s
rights as this provision. The Parties will use Confidential Information only for the purpose of
performing under this Agreement. The foregoing restrictions on use and disclosure of Confidential
Information do not apply to information that: (A) is in the possession of the Recipient at the time
of its disclosure and is not otherwise subject to obligations of confidentiality, (B) is or becomes
publicly known, through no wrongful act or omission of the Recipient, (C) is received without
restriction from a third party free to disclose it without obligation to the Discloser, (D) is
developed independently by the Recipient without reference to the Confidential Information, (E) is
required to be disclosed by law, regulation, or court or governmental order, or (F) is disclosed
with the prior written consent of the Discloser. “Confidential Information” means nonpublic
information: (i) about the Discloser’s business, (ii) given to the Recipient in any tangible or
intangible form for Recipient’s use in connection with this Agreement, and (iii) that the Recipient
knows or reasonably should know is confidential because of its legends, markings, circumstances of
the disclosure or the nature of the information. Confidential Information includes, but is not
limited to: trade secrets; financial information; technical information, including research,
development, procedures, algorithms, data, designs, and know-how; business information, including
operations, planning, marketing plans, and products; and the pricing and terms of this Agreement
including related discussions, negotiations and proposals. “Discloser” means the Party disclosing
Confidential Information, and “Recipient” means the Party receiving Confidential Information.



16. Termination




     16.1 Termination Rights. Either Party shall have the right to terminate this Agreement in its
entirety at any time under any of the following circumstances, by giving written notice to the
other Party:




	 	(i)	 	A Party commits a material breach of this Agreement, which
breach is not cured within thirty (30) days after written notice detailing
such breach is provided to the Party in breach;
	 
	 	(ii)	 	A Party commences the dissolution, liquidation and winding up
of its affairs or otherwise ceases to function as a going concern;
	 
	 	(iii)	 	A Party admits in writing its inability to pay its debts as
they become due; and
	 
	 	(iv)	 	A Party (x) institutes a voluntary proceeding, or becomes the
subject of an involuntary proceeding which involuntary proceeding is not
dismissed within sixty (60) days, under any bankruptcy act, insolvency law or
any law for the






	 	 	 	 	 	 	 

	 

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	 	 	 	relief of debtors, (y) has a receiver appointed to manage its affairs, which
appointment is not dismissed, vacated or stayed within sixty (60) days, or (z)
executes a general assignment for the benefit of creditors.





     16.2 Effect of Termination/Expiration. If a specific In-Building Solution terminates or
expires or if this Agreement terminates or expires, the Parties will cooperate in good faith and
use commercially reasonable efforts during the sixty (60) day period following such expiration or
termination to “wind down” and conclude their respective obligations under this Agreement as to
such Location or as to all Locations as applicable, provided however that nothing herein shall
obligate either Party to incur any additional expense or undertake any additional actions as part
of such “winding down” beyond those provided for in this Agreement. Sprint will give Clearwire
written notice promptly once Sprint becomes aware that a specific In-Building Solution is being
terminated or is expiring. Sprint will be responsible for removal of any Equipment installed at any
Locations, at Sprint’s sole cost and expense.


17. Representations. Sprint and Clearwire each represent and warrant that they have the authority
to enter into this Agreement.



18. Limitations and Conditions of Liability




     18.1 IN THE CASE OF ANY AND ALL CLAIMS THAT MAY ARISE FROM, OR RELATE TO PERFORMANCE OR
NON-PERFORMANCE UNDER, THIS AGREEMENT, IN NO EVENT IS EITHER PARTY LIABLE TO THE OTHER PARTY FOR
ANY CONSEQUENTIAL, INCIDENTAL, PUNITIVE, SPECIAL OR OTHER INDIRECT DAMAGES REGARDLESS OF THE
CAUSE.



     18.2 EACH PARTY’S MAXIMUM LIABILITY FOR PROVEN DIRECT DAMAGES FOR ALL CLAIMS ARISING OUT OF
THIS AGREEMENT IS LIMITED TO [*****].



     18.3 THE PARTIES’ CONFIDENTIALITY AND INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT ARE
EXCLUDED FROM THIS (“LIMITATIONS AND CONDITIONS OF LIABILITY”) SECTION.


19. Indemnity




     19.1 Each Party will indemnify, defend and hold the other Party, and the other Party’s
directors, officers, employees, agents and their successors, harmless against all third party
claims for damages, losses, liabilities or expenses, including reasonable attorneys’ fees (each a
“Claim” and collectively, the “Claims”) arising directly from the performance of this Agreement and
relating to personal injury, death, or damage to real or tangible personal property that is alleged
to have resulted, in whole or in part, from negligence or willful misconduct of the indemnifying
Party or its subcontractors, directors, officers, employees or authorized agents, but excluding
Claims arising from or relating to disruption of the Services.



     19.2 Third Party Intellectual Property Claims. As to any Equipment purchased or installed by
Sprint, Sprint shall, upon receipt of notification, promptly assume full responsibility for the
defense of any suit or proceeding which may be brought against Clearwire, its affiliates, officers,
employees, and agents, for alleged infringement of any patent, copyright, trademark, trade secret,
mask work, or other proprietary right of any third party (each an “IP Claim”) and Sprint further
agrees to indemnify and hold Clearwire, its directors, officers, employees and agents harmless
against any and all claims, demands, liability, expenses, losses, and damages resulting from any IP
Claim, provided that Clearwire: (i) gives prompt written notice of any such IP Claim; (ii) allows
Sprint to direct the defense and settlement of the IP Claim; and (iii) provides Sprint with
reasonable authority, information, and assistance for the defense and settlement of the IP Claim.
Sprint shall not enter into any settlement agreement that requires Clearwire to admit any liability
of any kind with respect to the Sprint-installed Equipment. Sprint and Clearwire acknowledge and
agree that Sprint has no indemnity obligations whatsoever under this Agreement for comparable
Equipment purchased by Clearwire.



     19.3 To be indemnified, the Party seeking indemnification must: (i) give the other Party
timely written notice of the Claim (for purposes of section 19.3 Claim includes an IP Claim)


 
	 	 	 	 	 	 	 

	 

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(unless the other Party already has notice of the Claim), (ii) give the indemnifying Party
full and complete authority, information and assistance for the Claim’s defense and settlement, and
(iii) not, by any act, admission or acknowledgement, materially prejudice the
indemnifying Party’s ability to satisfactorily defend or settle the Claim. The indemnifying Party
will retain the right, at its option, to settle or defend the Claim, at its own expense and with
its own counsel. The indemnified Party will have the right, at its option, to participate in the
settlement or defense of the Claim, with its own counsel and at its own expense, but the
indemnifying Party will retain sole control of the Claim’s settlement or defense.



20. Notices. All notices must be in writing and are effective only: (i) when deposited in the U.S.
mail, certified mail, return receipt requested and postage prepaid, or (ii) when sent via
overnight delivery. Notice will be deemed delivered on the date of receipt (or on the date receipt
is refused) as shown on the certification of receipt or on the records or manifest of the U.S.
Postal Service or overnight delivery service, as applicable. Notice addresses may be changed by
giving notice as provided in this section.




     20.1 Notices to Sprint must be sent to each of the following:[*****]


21. Miscellaneous




     21.1 Independent Contractor. Sprint and Clearwire perform their obligations in this Agreement
as independent contractors. Nothing in this Agreement will create an employer-employee
relationship, association, joint venture, partnership, or other form of legal entity or business
enterprise between the Parties, their agents, employees or affiliates.



     21.2 Governing Law. This Agreement is governed by the laws of New York without regard to its
choice of law principles.



     21.3 Severability. If any provision of this Agreement is found to be unenforceable, this
Agreement’s unaffected provisions will remain in effect and the Parties will negotiate a mutually
acceptable replacement provision consistent with the Parties’ original intent.



     21.4 Waiver. No waiver by either Party of any breach of any provision of this Agreement will
constitute a waiver of any prior, concurrent or subsequent breach of the same or any other
provision of this Agreement.



     21.5 Survival. Provisions of this Agreement, which by their nature are intended to survive
this Agreement, will survive the expiration or earlier termination of this Agreement.



     21.6 Assignment. This Agreement may not be assigned by either Party without the other Party’s
prior written consent, which consent will not be unreasonably conditioned, withheld or delayed,
except that each Party has the right to assign this Agreement, in whole or in part, to any of the
Party’s subsidiaries, affiliates or a successor in interest, or to any entity acquiring
substantially all of the Party’s assets. This Agreement binds, and inures to the benefit of, the
successors and permitted assigns of the Parties.



     21.7 Amendments / Alterations. This Agreement may only be amended in a writing signed by both
Parties’ authorized representatives. Alterations to this Agreement are not valid unless accepted
in writing by both Parties.



     21.8 Entire Agreement. This Agreement, including any schedules, constitutes the entire
agreement between the Parties with respect to Clearwire and Sprint installing, operating,
maintaining and removing the In-Building Solutions and supersedes all prior written and verbal
agreements, representations, promises or understandings between the Parties. Any amendments to this
Agreement must be in writing and executed by both Parties.


22. Contingent Nature of Amended and Restated Enhanced In-Building Coverage Deployment Agreement.
This Agreement is contingent upon the Parties executing all of the following documents within 48
hours of the other Party: (1) April 2011 Clearwire / Sprint Amendment to the 4G MVNO Agreement; (2)
Sprint / Clearwire First Amendment to the MVNO





	 	 	 	 	 	 	 

	 

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Support Agreement (3G); (3) First Amendment to the December 23, 2009 Dual Mode Settlement Letter
Agreement; (4) Settlement and Release Agreement; and (5) Omnibus Agreement.



Each Party has caused this Agreement to be executed by its authorized representative.




	 	 	 	 	 	 	 	 	 	 	 

	CLEAR WIRELESS LLC	 	SPRINT SOLUTIONS, INC.
	 
	 	 	 	 	 	 	 	 	 	 
	By:

	 	/s/ John Stanton		By: 		/s/ Steven Elfman
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	Name:
	 	John Stanton	 	Name: 	Steven Elfman
	 

	 	Title:
	 	Chairman & CEO	 	 	 	Title:	President
	 

	 	Date:		April 18, 2011
		 	Date:	April
14, 2011







	 	 	 	 	 	 	 

	 

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Schedule A — Form of Clearwire-Sprint Tracking Statement of Work (“SOW”)



This document will provide a record of all of the In-Building Solutions submitted under this
Agreement.




	 	 	 
	Action	 	Owner
	Customer Opportunity

	 	•   Sprint shall identify opportunities and submit projects into
the WCAT tool.

	 
	 	 
	 

	 	•   Sprint shall engage a trusted vendor to perform a design walk,
assemble a design and a BOM. Sprint shall share the design with
Clearwire to obtain approval prior to installation beginning.

	 
	 	 
	 

	 	•   Clearwire shall review and approve all Sprint designs/BOM
within the SLA.

	 
	 	 
	 

	 	•   If the design is not approved, Sprint and Clearwire will work
together to make the necessary corrections in order to obtain
approval.

	 
	 	 
	 

	 	•   Clearwire to suggest backhaul type

	 
	 	 
	Design

	 	•   If microwave backhaul is required, Clearwire will send someone
on-site within the SLA to perform an analysis in order to assemble a
backhaul design.

	 
	 	 
	Donor Site Information

	 	•   Clearwire shall provide to Sprint.

	 
	 	 
	 

	 	•   Sprint will order and install all necessary equipment,
including all necessary microwave equipment.

	 
	 	 
	Equipment

	 	•   For Equipment relating to monitoring that requires special
configuration, Sprint will purchase the Equipment. Clearwire will then
be responsible for configuring the Equipment.

	 
	 	 
	 

	 	•   Sprint will order any backhaul circuits needed.

	 
	 	 
	 

	 	•   If microwave is being used at a Clearwire owned or Clearwire
leased site,, Clearwire will execute a lease(s) with the tower
owner(s).

	 
	 	 
	Backhaul Circuits

	 	•   Clearwire will work with Sprint to integrate backhaul circuits
into the Clearwire network.

	 
	 	 
	 

	 	•   Once the contract is signed by the Customer, then the
installation procedures will be executed respectively by both
Clearwire and Sprint in their areas of responsibility

	 
	 	 
	 

	 	•   Sprint will direct vendors to complete the installation of all
necessary equipment.

	 
	 	 
	 

	 	•   If site integration is needed, Sprint will provide Clearwire
advance notice in order to perform site integration into the Clearwire
network.

	 
	 	 
	Installation

	 	•   Sprint will notify Clearwire prior to turning on an RF
emitting device.

	 
	 	 
	ATP

	 	•   Sprint will have an ATP conducted once the site is on-air.






 
	 	 	 	 	 	 	 

	 

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SCHEDULE A-1 APPROVED RETAIL STORES



[Attached list of Retail Store approved sites]




*** END OF SCHEDULE A-1 ***




	 	 	 	 	 	 	 

	 

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SCHEDULE A-2 APPROVED OPERATIONAL FACILITIES

[*****]




*** END OF SCHEDULE A-2 ***


 
	 	 	 	 	 	 	 

	 

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SCHEDULE A-3 CLEARWIRE ENGINEERING COSTS

[*****]




*** END OF SCHEDULE A-3 ***


 
	 	 	 	 	 	 	 

	 

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Schedule B —




Terms for the Equipment Purchase Agreement


The Equipment Purchase Agreement that Sprint and Clearwire execute if Clearwire exercises its
purchase rights contained in section 7.5 of the Amended and Restated Enhanced In-Building Coverage
Deployment Agreement (“CNS Agreement”) will contain terms that are the same or substantially
similar to the following terms:



1. Sale of Equipment and License to Software. Sprint hereby sells to Clearwire and
Clearwire hereby purchases from Sprint the equipment described on Exhibit A attached hereto
and incorporated herein, and licenses the software contained therein to the extent permitted as
described below (“Equipment”).



2. Purchase Price. As full and complete consideration for the Equipment, Clearwire will pay
Sprint the sum of _______________ ($__________), which is calculated as described in section 7.5 of
the CNS Agreement (“Purchase Price”).



3. Transfer of Title. When Sprint receives Clearwire’s payment of the Purchase Price,
Sprint will transfer title of the Equipment to Clearwire free and clear of liens and encumbrances.



4. Due Diligence. Clearwire will be entitled to perform due diligence on the Equipment.
Clearwire will be entitled to inventory the Equipment to determine that Sprint has provided
Clearwire with a complete and accurate inventory of the Equipment Clearwire will purchase. Also,
Clearwire will be entitled to perform a physical inspection of the Equipment, and Sprint will
assist Clearwire by obtaining access to the Equipment for Clearwire. Clearwire will inspect whether
the Equipment is free of any liens or other encumbrances.



5. Software, Support and Maintenance. To the extent that it has the legal ability to do so,
Sprint hereby assigns to Clearwire all applicable software licenses so as to permit Clearwire to
operate the Equipment as such Equipment was operated by Sprint (or its Customer) prior to transfer
of title to Clearwire. Such software is identified in Exhibit A hereof (hereinafter
"Software”) in connection with the sale of Equipment.




     A. License Fees. As part of its due diligence, Clearwire will have the right to review
Sprint’s license agreements to determine whether any Software is subject to any ongoing royalty
payments. If it is, Clearwire will take over the payment obligation when title to the Equipment
transfers to Clearwire.



     B. Updates. During the warranty period, or for as long as Clearwire purchases any
maintenance support services from Sprint, whichever is shorter, Sprint will, to the extent legally
permissible, pass through any and all routine Software changes and updates intended to provide
general improvements to the performance of the Equipment. If there is a charge for such software
update, Clearwire will pay for such software update.



     C. Support. To the extent legally permitted under its agreements with appropriate
vendors or Software providers, Sprint will ensure that support and maintenance services which were
available to Sprint for the Equipment (including all Software) prior to the transfer of the
Equipment to Clearwire will be available to Clearwire under either Sprint’s support and maintenance
terms with the applicable vendor, or, if Clearwire has an existing relationship with the applicable
vendor for similar equipment, under the support and maintenance terms that Clearwire has in place
with that vendor. Such support, including updates to software, will be available to Clearwire no
later than the date on which title to the Equipment is transferred to Clearwire. Sprint will ensure
that all software embodied within the Equipment reflects the most recently available updates from
the vendor.



     D. Additional Services and Assignment of Contracts. In furtherance of Section 6(C)
above, Sprint agrees that, unless Clearwire and an applicable vendor agree that support for
purchased Equipment will be covered under an existing support agreement between Clearwire and such
vendor, then Sprint will ensure that Sprint’s rights and obligations with respect to support for
the purchased Equipment are assigned to Clearwire no later than the date on which


 
	 	 	 	 	 	 	 

	 

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Clearwire takes title to the Equipment. Notwithstanding the foregoing, in the event that Sprint is
unable to assign such rights and obligations to Clearwire because the support rights are
non-assignable to Clearwire by virtue of the support agreement, then Sprint shall so inform
Clearwire and Sprint shall use commercially reasonable efforts to obtain the applicable vendor’s
consent to provide support to Clearwire under similar terms and conditions either under an existing
or a new support agreement between Clearwire and such vendor. In addition to support agreements,
Sprint further agrees that it will use commercially reasonable efforts to assign to Clearwire all
additional services contracts (including leased backhaul, outsourced maintenance services and
related SLAs etc.) necessary to continue using the Equipment to provide service in the same manner
as prior to the transfer of the Equipment to Clearwire.



6. Equipment Warranty. Sprint will assign any remaining warranty rights associated with any
purchased Equipment to Clearwire to the extent such rights are assignable. To the extent
applicable, the terms of any such warranty provided to Clearwire shall be provided by Sprint to
Clearwire and Sprint shall make any required notifications to the warranty provider to indicated
that Clearwire is the replacement beneficiary of the warranty. Sprint represents and warrants that
any Equipment (expressly including the software contained therein) transferred to Clearwire
hereunder is free from any encumbrance, mortgage, pledge or rights of any third party.



7. Further Assurances. Upon receiving the final payment from Clearwire under this
agreement, Sprint will use commercially reasonable efforts to execute such further assurances as
may be reasonably required by Clearwire to insure that the Equipment is free from all liens and
encumbrances.




	 	 	 	 	 	 	 

	 

	 	Confidential — Subject to Nondisclosure Obligations
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