exv10w26






Exhibit
10.26




EXECUTION COPY




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.




4G MVNO Agreement




dated as of

November 28, 2008




among

Clearwire Communications 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 Clearwire 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 Clearwire
	 	 	21	 
	2.11 Most Favored Reseller
	 	 	21	 
	 
	 	 	 	 
	3. Term
	 	 	21	 
	 
	 	 	 	 
	4. Conditions Precedent
	 	 	22	 
	 
	 	 	 	 
	5. Representations and Warranties and Covenants
	 	 	22	 
	5.1 General Warranties
	 	 	22	 
	5.2 Compliance with Laws
	 	 	22	 
	5.3 Litigation
	 	 	22	 
	5.4 Clearwire 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
	 	 	26	 
	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; Clearwire Obligations
	 	 	28	 
	7.9 Access
	 	 	29	 
	7.10 Audit Right
	 	 	29	 
	 
	 	 	 	 
	8. SIG Party Rights and Obligations
	 	 	30	 
	8.1 Handsets and Other Mobile Devices
	 	 	30	 






	 	 	 	 	 
	 

	 	Confidential Information – Subject to Nondisclosure Obligations
	 	i






 









 






	 	 	 	 	 
	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 Clearwire
	 	 	32	 
	8.7 Legal Request Compliance
	 	 	32	 
	8.8 Electronic Surveillance
	 	 	33	 
	8.9 Exclusivity, Etc.
	 	 	33	 
	 
	 	 	 	 
	9. Clearwire Rights and Obligations
	 	 	33	 
	9.1 Modifications; MVNO Operations Manual
	 	 	33	 
	9.2 Clearwire Network Fraud Detection and Responsibility
	 	 	34	 
	9.3 Clearwire’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 Clearwire’s Indemnification
	 	 	37	 
	12.3 Indemnification Procedures
	 	 	38	 
	 
	 	 	 	 
	13. Termination and Transition Assistance
	 	 	39	 
	13.1 Clearwire Termination Rights
	 	 	39	 
	13.2 SIG Party Termination Rights
	 	 	39	 
	13.3 Clearwire 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
	 	 	52	 
	17.3 Construction
	 	 	52	 
	17.4 Survival
	 	 	52	 
	17.5 Headings
	 	 	52	 
	17.6 Severability
	 	 	52	 
	17.7 Dispute Resolution
	 	 	53	 
	17.8 Confidential Arbitration
	 	 	53	 
	17.9 Governing Law; Exclusive Venue
	 	 	55	 
	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
	 	 	56	 
	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 November 28, 2008 (the “Effective Date”) by and among Clearwire Communications LLC,
a Delaware limited liability company (“Clearwire”), 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. Clearwire holds and leases certain BRS and EBS licenses issued by the FCC and leases excess
capacity on EBS licenses. Clearwire is developing and will own and operate the Clearwire 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 Clearwire and market and sell the Wireless
Broadband Service to its End Users as MVNO Service. Clearwire 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,
Clearwire and the SIG Parties agree:



OPERATIVE TERMS




     1. Definitions



     [*****]



     “3G MVNO Agreement” means the MVNO Support Agreement dated as May 7, 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 Clearwire nor any of its subsidiaries shall be
deemed to be an Affiliate of any SIG Party or any of its Affiliates (other than Clearwire and its
subsidiaries) and none of the SIG Parties or their respective Affiliates (other than Clearwire and
its subsidiaries) shall be deemed to be an Affiliate of Clearwire and its subsidiaries.



     “Agency Agreement” means an agency agreement entered into by Clearwire 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 Clearwire 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 Partner 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 Clearwire, or


     (B) the combined voting power of the then-outstanding voting securities of the
Ultimate Parent of Clearwire 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 Clearwire (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 Clearwire, certain
Affiliates of the Founding Partners and certain other Persons.


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


     “Clearwire” has the meaning specified in the preamble.


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


5







 





     “Clearwire Client Manager” means the application software that facilitates the connection to
the Clearwire 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.



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



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



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



     “Clearwire Parent” means Clearwire Corporation, a Delaware corporation formerly known as New
Clearwire Corporation.



     “Clearwire 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.



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



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



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



     “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 Clearwire (i) Wireless Broadband Service,
including any prepaid service, including any end user customer of Clearwire’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) Clearwire 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



6









 




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 Clearwire Network
(including any [*****] device capable of operating on the Sprint Network and the Clearwire
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) Clearwire
or any other SIG Party or any of their respective Controlled Affiliates regarding the SIG Party’s
End Users (solely in their 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 Clearwire 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 Clearwire 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.



7









 





     “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 Clearwire Network via a Clearwire connection
management utility or a SIG Party connection management utility. A Generic Embedded Device is
branded by or co-branded by Clearwire or a SIG Party with the device OEM and distributed through
the device OEM or Clearwire channels for retail services subscription with Clearwire 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, Bright House Networks, LLC, (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).



     “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.



     [*****]



8









 





     “Market” means a CMA covered by the Clearwire Network in which the Wireless Broadband Service
is made available to the SIG Parties directly by Clearwire 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 Clearwire 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 Clearwire or any of its Controlled Affiliates over the Clearwire 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 Clearwire Network that provide
information and functionality necessary to provide services and applications over the Clearwire
Network. For purposes of clarification, Network Enablers include, but are not limited to, the
underlying network 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.



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



     “Non-Standard Network Services” are the Wireless Broadband Services provided by Clearwire 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 Clearwire 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 [*****];



     (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



9









 




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
Clearwire, 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) Clearwire’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
Clearwire 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).



     “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 2.11.1(a).



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



10









 





     “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 Clearwire 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 Clearwire to
Clearwire 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 Clearwire 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).



     “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).



11









 





     “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 Clearwire is Clearwire 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
Clearwire Network and to be provided by Clearwire 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 Clearwire’s commercial offerings and not provided to any Other
Reseller; provided that Wireless Broadband Service shall not include any applications or content
offered by Clearwire, its Controlled Affiliates or third parties over the Clearwire Network or any
service that Clearwire may not provide over the Clearwire Network under Applicable Law.



     “Wireless Data Card” means a wireless PC card that has been certified to operate on the
Clearwire 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, Clearwire will provide and sell the Wireless
Broadband Service to each SIG Party. Clearwire hereby authorizes each SIG Party and its Controlled
Affiliates to market the Wireless Broadband Service as its MVNO Service as more fully described in
this Agreement.




12









 








          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), Clearwire will provide each SIG Party with a rolling 36-month roadmap
(each, a “Quarterly Roadmap”) of Clearwire’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 “Clearwire Wholesale Offering” and, collectively, the
“Clearwire Wholesale Offerings”), (y) modifications, enhancements and updates to existing
Clearwire Wholesale Offerings approved for development by Clearwire 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 Clearwire 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 Clearwire Wholesale Offerings; (ii) can
recommend desired features and functionality for inclusion in the Clearwire Wholesale
Offerings; and (iii) can make timely requests for Non-Standard Network Services in accordance
with the terms of this Agreement; provided, however, that Clearwire may in good faith limit
any information relating to any Clearwire 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 Clearwire 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) Clearwire 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 Clearwire 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 Clearwire. 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 Clearwire Wholesale Offerings, (ii) modifications, enhancements and updates to existing
Clearwire Wholesale Offerings, (iii) new Clearwire 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”)
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



13









 







Services along with the target dates associated with the development of such Initial
Standard Network Services (the “Initial Network Enablers”). Clearwire 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 Clearwire to the SIG Parties as
follows:




	 	(i)	 	During the Term (including any Phase-Out Period), Clearwire
will continue to develop and launch new Standard Network Services. If
Clearwire 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 Clearwire
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 Clearwire, and
Clearwire 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 Clearwire, such
that neither Clearwire 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 Clearwire
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 Clearwire 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 Request, Clearwire shall deliver to the SIG Party(ies) making such request a written
response setting forth (i) Clearwire’s good faith determination of whether the requested
Service is a Simple



14









 







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 Clearwire 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
Clearwire of such written response, Clearwire 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
Clearwire’s written response (as such response may be modified as described above) upon
delivery of written notice thereof to Clearwire, (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, Clearwire shall have no further
obligation to deliver such the Non-Standard Network Service requested pursuant to this
Section 2.2.3.




     (d) If Clearwire receives a timely election to proceed from the requesting SIG
Party(ies) for a Non-Standard Network Service Request (or Clearwire and the requesting SIG
Party(ies) otherwise agree to proceed with such Non-Standard Network Service Request through
the dispute resolution process or otherwise), Clearwire 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 Clearwire 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 Clearwire 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
	 
	 	(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




15









 






	 	 	 	Clearwire 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, Clearwire 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,
Clearwire shall promptly thereafter deliver a copy of such request to each SIG
Party or each other SIG Party, as applicable, and Clearwire 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 Clearwire, to require that Clearwire [*****];
	 
	 	(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 Clearwire 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) Clearwire 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) Clearwire 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 Clearwire’s lead partners in testing
[*****], and Clearwire 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 Clearwire necessary for such SIG Party to test
the capabilities of the [*****].




     (c) Clearwire will use its commercially reasonable efforts to support and cooperate with
each SIG Party to integrate the Clearwire 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 Clearwire that is to be provided to any
[*****] shall be as mutually agreed between Clearwire and the SIG Party, subject to Section
2.11.



16









 





               2.2.5 Roaming


To the extent technically feasible, Clearwire 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 Clearwire’s Standard Network Service and Non-Standard Network Service offerings all
roaming services that Clearwire 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 Clearwire 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) Clearwire 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 Clearwire’s prior written consent
(which may be withheld in Clearwire’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 Error! Reference source not found., with VM deemed to be an “Other
Reseller” for purposes of the application of such Section.



               2.3.6 Reporting; Audit


Clearwire, 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 Clearwire and
if such third party is not a “Big 4” accounting firm, then such SIG Party shall have the right to
approve Clearwire’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 Clearwire 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 Clearwire; 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 Clearwire, 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 Clearwire 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 Clearwire 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. Clearwire 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, Clearwire 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 Clearwire 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 Clearwire 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 Clearwire 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, Clearwire) shall promptly thereafter deliver a notice to each SIG Party (with a copy
thereof to Clearwire) 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 Clearwire 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 Clearwire 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) Clearwire hereby agrees that upon any Person becoming a party to this Agreement
pursuant to Section 2.4(a), Clearwire 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 Clearwire, 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 Clearwire if
used to brand such SIG Party’s MVNO Service.




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



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




          2.7 Right to Make Available to Controlled Affiliate





     (a) Clearwire 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



20









 







or omission by any SIG Party’s Controlled Affiliate that would be a breach of this
Agreement if 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 Clearwire, 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 Clearwire 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 Clearwire 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 Clearwire



Clearwire, on the one hand, and each MSO Party, on the other hand, will discuss mutually acceptable
arrangements with respect to Clearwire’s access to fiber, tier 1 peering, collocation in
facilities, VoIP services and content from, to the extent applicable, each SIG Party. In addition,
Clearwire will discuss mutually acceptable terms on which Clearwire 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 Clearwire and its Controlled Affiliates with
respect to the provision by Clearwire 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) [*****].


     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
Clearwire in writing (which notification shall be simultaneously delivered to each other SIG Party
then party to this



21









 




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 Clearwire, 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 Clearwire’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 Clearwire the Guaranty by its Guarantor
pursuant to Section 7.8, Sprint shall have provided to Clearwire 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 Clearwire 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 Clearwire, and Clearwire 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.




          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. Clearwire 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


22









 






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 Clearwire’s ability to
perform its obligations under this Agreement.




          5.4 Clearwire Licenses



Clearwire 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 Clearwire’s ability to perform its obligations under
this Agreement.




     6. Scope of Wireless Broadband Service



          6.1 Wireless Broadband Service



Clearwire 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
Clearwire Network, which as of the date indicated is planned to cover the Markets set forth in
Schedule 6.1. Clearwire 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 Clearwire enters into any
agreement or arrangement pursuant to which Clearwire, 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 Clearwire Retail Customers) over
third-party networks, Clearwire 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 Clearwire with respect to Clearwire 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 Clearwire over the Sprint Network shall not be subject to this
Section 6.1 (it being understood that Clearwire’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 Clearwire
Network.




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




        (c) Clearwire may, from time to time, implement network volume controls that impact the
throughput of data traffic and that are designed to protect the Clearwire Network for all
users of the Clearwire Network; provided that any such controls shall be consistently applied
across Clearwire’s 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 Clearwire 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 Clearwire shall give each SIG Party
notice of implementing any such controls substantially contemporaneously with the notice, if
any, provided with respect to Clearwire’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
Clearwire Network that are capable of operating on multiple wireless networks or that are
compatible with other wireless services.



23









 





               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 Clearwire, SIG Party Data Content
and Applications will not reside on the Clearwire Network;




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




        (c) Clearwire 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 Clearwire or any of its Controlled Affiliates), or any damages
resulting therefrom. Clearwire does not guarantee the accuracy, completeness or usefulness
of information that is obtained through SIG Party Data Content and Applications. Clearwire
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 Clearwire
Network, such Device fulfillment vendor shall be required to comply with all Clearwire
policies then in effect with respect to the authorization of manufacturers or fulfillment
vendors on the Clearwire Network, provided that such policies are consistently applied across
Clearwire’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 Clearwire’s and the SIG
Parties’ volumes for Devices offered by Clearwire 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 the
exclusive right to [*****], unless each other Party is expressly excluded from such
exclusivity restrictions.




        (d) Clearwire 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 Clearwire 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. Clearwire will
not provide any handling or logistics services with respect to accessories.




        (f) From and after the Effective Date, Clearwire shall not, and shall cause its
Controlled Affiliates not to, enter into any agreement that would prevent any third party
retailer,



24









 




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, Clearwire will make
coverage maps, coverage tools and raw coverage data available to each SIG Party in the same
form as Clearwire provides to its Customers or otherwise uses in its direct retail
operations.




        (b) Clearwire 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) Clearwire 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 Clearwire’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 Clearwire in connection with its retail operations or made
available to Clearwire Retail Customers.




        (d) Clearwire 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 Clearwire 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) Clearwire 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 Clearwire 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 Clearwire to any Other
Reseller which may include, as an example: a resale portal, trouble ticketing systems,
geographic tools, the provisioning APIs, usage feeds, and other provisioning and support
tools.




        (b) Clearwire shall use commercially reasonable efforts to cause the Clearwire 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, Clearwire 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.



25









 






        (d) Clearwire will provide each SIG Party customer usage and other data, to the extent
Clearwire 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, Clearwire 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 Clearwire 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 Clearwire Network shall be governed by
provisions of Schedule 7.2.




          7.3 Payment of Charges



Each SIG Party will pay Clearwire 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



Clearwire 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 Clearwire
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 Clearwire
receives payment at the location designated by Clearwire in such invoice. In its sole discretion,
Clearwire 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.




          7.5 Late Payments



Any amount invoiced by Clearwire 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.




26









 








          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 Clearwire 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 Clearwire 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 Clearwire, 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, Clearwire 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
Clearwire fails to notify such SIG Party in writing within such 30-day period of its
determination, Clearwire 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
Clearwire and not withheld pursuant to 7.6.2(a). If, after receipt of Clearwire’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
Clearwire within 30 days of receipt of Clearwire’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 Clearwire’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 and owing to Clearwire 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 Clearwire’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 Clearwire and was previously withheld). No SIG Party may withhold any amounts
from current period payments for disputes from any subsequent payment under Section 3.



27









 






        (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 Clearwire 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 Clearwire are exclusive of any Taxes. Each SIG Party will provide to Clearwire
valid and complete resale exemption certificates or functional equivalent documents that are
acceptable to the applicable Taxing Authority for the services purchased from Clearwire 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 Clearwire 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.
Clearwire will notify each SIG Party of any Tax that Clearwire is required by a Taxing Authority to
charge to a SIG Party and which Tax Clearwire is required to remit directly to a Taxing Authority.
Clearwire will invoice each SIG Party for those Taxes and such SIG Party will pay them to
Clearwire under Section 7.4 (subject to such SIG Party’s right to dispute such amounts under the
procedures set forth in Section 7.6). Clearwire 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 Clearwire
for all Taxes imposed on Clearwire where (i) the Tax was imposed on Clearwire 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 Clearwire had such SIG Party been properly registered to do
business in that jurisdiction. Clearwire 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 Clearwire a valid and complete exemption certificate, or functionally
equivalent documents that are acceptable to Clearwire and the applicable Governmental Authority.
Clearwire will notify each SIG Party of any levy that Clearwire is required by a Governmental
Authority to charge to a SIG Party and which levy Clearwire is required to remit directly to a
Governmental Authority. Clearwire will invoice each SIG Party for those levies and such SIG Party
will pay them to Clearwire under Section 7.4 (subject to such SIG Party’s right to dispute such
amounts under the procedures set forth in Section 7.6). Clearwire 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 Clearwire for all levies imposed on Clearwire where (i) the levy was imposed on
Clearwire 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 Clearwire had such
SIG Party been properly registered to do business in that jurisdiction.




          7.8 SIG Party Liability; Parent Company Guarantees; Clearwire 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, Clearwire acknowledges and agrees that the obligations of each SIG
Party



28









 







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 Clearwire 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 Clearwire a letter agreement in substantially the
form attached hereto as Attachment 2 and (iii) Clearwire 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 Clearwire of any of its obligations hereunder
would require any action by, or assistance from, any Controlled Affiliate of Clearwire,
Clearwire 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, Clearwire 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 Clearwire’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 Clearwire 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 Clearwire or any of its any of Controlled Affiliates or cause Clearwire 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





Clearwire 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
Clearwire, to the effect that Clearwire 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 Clearwire and its Controlled Affiliates reasonably necessary to
determine Clearwire’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 Clearwire 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 Clearwire is in compliance with the Pricing Related Obligations, then
the Independent Auditor shall provide written notice to the SIG Parties stating only that
Clearwire is in compliance. If, as a result of the examination performed hereunder, the
Independent Auditor determines that Clearwire has failed to comply with the Pricing Related
Obligations, then the Independent Auditor shall commence good faith discussions with
Clearwire regarding the provisions at issue. In the event that after good faith discussions,
the Independent Auditor



29









 







concludes that Clearwire is, in fact, in compliance with the Pricing Related Obligations,
then the Independent Auditor shall provide written notice to the parties stating only that
Clearwire is in compliance. In the event that after good faith discussions, the Independent
Auditor concludes that Clearwire has failed to comply with the Pricing Related Obligations,
then Clearwire 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 Clearwire with
respect to the information proposed to be provided, for the SIG Parties to pursue its claim
or claims related to Clearwire’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 Clearwire 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. Clearwire
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, Clearwire 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, Clearwire 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
Clearwire; provided, however, that in no event shall Clearwire 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) Clearwire will be the exclusive entity to develop and contract
with OEMs regarding Generic Embedded Devices and (ii) Clearwire 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, Clearwire will commit to work with
each SIG Party to embed WiMAX capability in such Devices of OEMs requested by such SIG Party.




        (b) The Clearwire Client Manager will be the default client manager interface for
Generic Embedded Devices. Clearwire will provide each SIG Party with [*****]; provided that
Clearwire 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
[*****].




        (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 Clearwire Network. Clearwire will apply its certification process to a
SIG Party’s Devices (including, its SIG Party-Defined Devices) on a nondiscriminatory basis
no less favorable



30









 







to such SIG Party than the certification process applied to Devices sold by any Other
Reseller, any other Founding Partner and in Clearwire retail locations. In all cases,
Clearwire will limit the scope of its certification criteria to radio compliance and
interoperability testing over the Clearwire 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 Clearwire. Clearwire 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.,
Clearwire 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
Clearwire, with respect to any Clearwire Device, unless such SIG Party upgrades or customizes
such Clearwire 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 Clearwire retail operations with
substantially similar complexity and/or potential impact on the Clearwire Network (e.g., an
upgrade to a SIG Party’s existing SIG Party-Defined Device or an upgrade to, or customization
of, a Clearwire 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 Clearwire retail operations would
require such certification); provided that, in all cases, Clearwire’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, Clearwire 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 Clearwire Device), which shall set forth the agreed upon start and
end date for the completion of such certification. Clearwire 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 Clearwire’s commercially reasonable lab entrance
criteria by the agreed upon start date.




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



               8.1.3 No Clearwire Responsibility


Clearwire 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 Clearwire in writing, Clearwire will not be required to make any
changes, modifications or additions to its equipment, operations or facilities to accommodate such
SIG Party or the Devices provided by such SIG Party. Clearwire will not be responsible for any
customer care support for the SIG Party End Users, but Clearwire will act as the interface for the
SIG Parties with Clearwire’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.




31









 








          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 Clearwire.




          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 Clearwire or any SIG Party discovers any material interference (as determined by Clearwire in a
commercially reasonable manner) with the Facilities, the Clearwire Network or the Wireless
Broadband Service that (i) is outside the normal operating condition of the Facilities, the
Clearwire Network or the Wireless Broadband Service, (ii) materially impairs the quality of the
service provided by Clearwire 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, Clearwire, 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
Clearwire shall provide notice thereof as soon as reasonable practicable); provided that Clearwire
shall not terminate the Wireless Broadband Service to such End User unless the taking of such
action is consistent with Clearwire’s prior practices in dealing with Customers of Clearwire’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 Clearwire’s retail operations and end user customers of Other Resellers or any other
Founding Partner. In other instances of interference, Clearwire will provide 48 hours notice to a
SIG Party prior to terminating the impacted Service.




          8.6 SIG Party Reports to Clearwire



Each SIG Party will provide to Clearwire, 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 Clearwire 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 Clearwire to such SIG Party in
its normal billing practice, such SIG Party shall promptly contact the designated Clearwire
representative for assistance in compliance. If such SIG Party either: (a) fails to provide the
End User phone records or broadband data records 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 Clearwire representative
for assistance when such request seeks information not provided by Clearwire to such SIG Party in
its normal billing practice, and if Clearwire 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 Clearwire for the amount
of such fine; provided that where permitted by Applicable Law, such SIG Party


32









 






may directly contest such fine at its cost and expense or Clearwire 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 Clearwire
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 Clearwire representative designated below for technical assistance in performing the
electronic surveillance, and if Clearwire 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 Clearwire 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 Clearwire 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 Clearwire 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 Clearwire 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 Clearwire 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. Clearwire Rights and Obligations



          9.1 Modifications; MVNO Operations Manual





        (a) The Parties acknowledge that an MVNO Operations Manual has not yet been prepared by
Clearwire, 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 Clearwire 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. Clearwire may from time to time modify, amend, change, update
or supplement the Clearwire Network, Clearwire’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,
Clearwire 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 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 Clearwire’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



33









 







existence immediately prior to such modification, amendment, change, update or
supplement with Clearwire’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, Clearwire’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 Clearwire’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 Clearwire’s resale operations. Subject to Clearwire’s compliance
with the foregoing, Clearwire 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), Clearwire 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 Clearwire Network Fraud Detection and Responsibility



Clearwire 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 Clearwire uses in its direct retail
operations.




          9.3 Clearwire’s Reports to the SIG Parties



Clearwire 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) Clearwire 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 Clearwire 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”), Clearwire 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). Clearwire and the SIG Parties shall, no later
than the Committed Performance Date, mutually develop and agree upon (i) the minimum network
performance parameters of the Clearwire 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 Clearwire 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



34









 







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 Clearwire 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 Clearwire 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
Clearwire 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 Clearwire) 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, Clearwire and its Controlled Affiliates shall operate the Clearwire 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, Clearwire will provide a standard report or set of
standard reports describing the performance of the Clearwire 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, Clearwire shall, in cooperation with the SIG Parties, ensure that
the Network Performance Specifications evolve properly over time to support enhanced services
over the Clearwire 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 Clearwire’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 Clearwire Network or outside of Clearwire’s or any of its Controlled
Affiliate’s reasonable control.



          9.5 Certain Information



Clearwire 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 Clearwire (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, Clearwire makes no warranties, express or implied, regarding
the Wireless Broadband Service or, if applicable, any equipment, product or other good provided by
Clearwire. In addition, all implied warranties are disclaimed, including any warranties of
merchantability, fitness for a particular purpose or use. Each SIG Party acknowledges that
Clearwire is not, as of the date of the Effective Date, the manufacturer of any equipment or
Devices.




35









 








          10.2 Limitations on Liability




               10.2.1 Liability Limit


EXCEPT FOR ANY PARTY’S PAYMENT OBLIGATIONS UNDER THIS AGREEMENT, IN NO EVENT SHALL CLEARWIRE’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 CLEARWIRE [*****] 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 Clearwire’s Rights


As between the Parties, each SIG Party recognizes the right, title and interest of Clearwire 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 Clearwire and its Controlled Affiliates
(“Clearwire 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 Clearwire 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 Clearwire Mark or any service mark, trademark,
or trade name that is confusingly similar to or a colorable imitation of any of the Clearwire Marks
and will not incorporate the Clearwire 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 Clearwire Marks through purchase of the Wireless Broadband Service, the
provision of MVNO Service or otherwise. Notwithstanding the foregoing, to clarify its relationship
with Clearwire, each SIG Party may use the Clearwire Marks with Clearwire’s prior written approval.
Nothing in this Section 11.1.1 will prevent any SIG Party from contesting or disputing any
Clearwire Marks that violate the provisions of Section 11.1.2.




               11.1.2 SIG Party Rights


Clearwire 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”). Clearwire 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. Clearwire acknowledges and agrees that
nothing in this Agreement grants Clearwire the right to use and Clearwire 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 Clearwire. Clearwire
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 Clearwire 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, Clearwire 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, Clearwire 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, Clearwire grants to
each SIG Party a limited, non-exclusive, non-transferable license to use Clearwire’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 Clearwire and its
Controlled Affiliates and their respective directors, officers, agents and employees (each, a
“Clearwire 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 Clearwire Indemnitee arising out of any Claim against a Clearwire 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 Clearwire’s Indemnification



Clearwire 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


37









 






and against all 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 Clearwire’s obligations, representations or
warranties under this Agreement, (b) willful misconduct by Clearwire or any of its Controlled
Affiliates, (c) negligent acts or omissions by Clearwire 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 Clearwire 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 Clearwire pursuant to clause (a) through (e) of Section 12.1), (d)
any violation of Applicable Law arising from an act or omission of Clearwire or any of its
Controlled Affiliates with respect to the Wireless Broadband Service provided by Clearwire 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 Clearwire pursuant to clause (d) or (e)
of Section 12.1) or (e) any allegation that any products or services provided by Clearwire 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 Clearwire 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 Clearwire Termination Rights





        (a) Clearwire 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 Clearwire 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 Clearwire’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 Clearwire (which notice
shall be simultaneously delivered to each other SIG Party then party to this Agreement):




        (i) Clearwire commits a material breach of this Agreement, which breach is not cured by
Clearwire within [*****] after written notice detailing such breach is provided to
Clearwire; 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
Clearwire’s control, then the



39









 







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




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




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




        (iv) Clearwire (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 Clearwire 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 Clearwire during the [*****] period beginning on the
date such Change of Control is consummated. In addition, upon Clearwire 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. Clearwire 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) Clearwire 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 Clearwire 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 Clearwire deems to be excess capacity, or a spectrum license
which when aggregate with all other spectrum licenses held by Clearwire does not result in
Clearwire 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, Clearwire 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, Clearwire 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
Clearwire in writing that they have elected to purchase such Disposed License(s) and, unless
Clearwire 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, Clearwire
shall, upon the request of such SIG



40









 







Parties, agree to substantially similar terms and conditions with such SIG Parties. If
such SIG Parties (or a subset thereof) elect to purchase such Disposed License(s), Clearwire
and such SIG Parties (or a subset thereof) shall as promptly as reasonably practicable, but
in no event later than [*****], after the receipt by Clearwire of such election notice enter
into a definitive agreement on the terms described above and, thereafter, consummate such
purchase within [*****] from the date Clearwire 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 [*****]  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 Clearwire 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 Clearwire or any of its
Controlled Affiliates), then Clearwire 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 Clearwire than the terms and
conditions proposed by Clearwire 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 Clearwire 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, Clearwire’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 Clearwire or any of its Controlled Affiliates is cancelled, terminated,
rescinded, annulled, revoked, suspended or otherwise limited, and as a result thereof
Clearwire 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 Clearwire or any Other
Reseller with respect to the applicable Market or portion thereof (including any roaming
rights granted to Clearwire, 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) Clearwire entering into a definitive agreement with respect to,
or if earlier, the consummation of, a Change of Control pursuant to which Clearwire 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 Clearwire
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 Clearwire entering into a definitive agreement with respect to, or
if earlier, the consummation of a Change of Control pursuant to which Clearwire 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
Clearwire).



          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, Clearwire
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 Clearwire
is the Frustrated Party and the Force Majeure Event interferes with Clearwire’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 Clearwire’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 Clearwire 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, Clearwire may terminate the Wireless
Broadband Service and the End Users on the Clearwire 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,
Clearwire 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”). Clearwire 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
Clearwire of adequate personnel, support and other resources) for testing the efficacy of the
transition process with respect to the affected End Users. If Clearwire 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 Clearwire 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 Clearwire 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 Clearwire
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), Clearwire 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 Clearwire Network (including the End Users of the SIG Parties, Clearwire Retail Customers
and end user customers of Other Resellers), such SIG Party shall be free to transfer its End
Users to any non-Clearwire 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 Clearwire Network (including the End Users of the SIG Parties,
Clearwire 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 Clearwire 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) [*****];
	 	 	 	(B) [*****]; and
	 	 	 	(C) [*****],





43









 






	 	(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 Clearwire 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 Clearwire 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 Clearwire 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) Clearwire 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 Clearwire, to Persons (other than any Restricted
Entity) considering equity investments or the provision of debt to Clearwire or
Persons (other than any Restricted Entity) acquiring Clearwire, its Ultimate
Parent or any Controlled Affiliates or any portions of the Clearwire Network
from Clearwire, 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 Clearwire 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 Clearwire 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), Clearwire
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 Clearwire, 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 Clearwire 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 Clearwire 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 Error! Reference source not found. 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), Clearwire 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 Clearwire,
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



48









 






with 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 Clearwire 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 Clearwire 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 Error! Reference source not found. 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) Clearwire may assign this Agreement to (i) a Controlled Affiliate
of Clearwire or (ii) in connection with a Permitted Strategic Transaction with respect to
Clearwire; provided that no such assignment shall relieve such SIG Party or Clearwire, 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


49









 






sale, assignment, transfer or other disposition. Any assignment, delegation or other transfer in
violation 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 Clearwire:



Clearwire Communications LLC

4400 Carillon Point

Kirkland, Washington 98033

Attention: Chief Executive Officer

Facsimile No.: (425) 828-8061



With copies to:



Clearwire Corporation

4400 Carillon Point

Kirkland, Washington 98033

Attention: Legal Department

Facsimile No.: (425) 216-7776



Davis Wright Tremaine LLP

1201 Third Avenue, Suite 2200

Seattle, Washington 98101

Attention: Julie Weston

Facsimile No.: (206) 757-7166




51









 




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 Clearwire 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 privilege to receive from Clearwire 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


52









 






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 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, Clearwire 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 Clearwire 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 Clearwire 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 Clearwire 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 Clearwire 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



53









 






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 Clearwire will make any Standard Network Service or
Non-Standard Network Service available to one or more SIG Parties in accordance with
Schedule 7.1, Clearwire, 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 Clearwire 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 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 Clearwire, 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 Clearwire 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 Clearwire 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 Clearwire, 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 Clearwire’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 Clearwire 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 Clearwire 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 Clearwire, on the
other hand. Notwithstanding the



54









 






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 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


55









 






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, Clearwire, 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 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 Clearwire 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
Clearwire 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 Clearwire 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


56









 






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.





57









 









     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.



	 	 	 	 	 	 	 	 	 
	CLEARWIRE COMMUNICATIONS LLC	 	SPRINT SPECTRUM L.P.	 	 
	 
	 	 	 	 	 	 	 	 
	By: 

Name:

	 	/s/ Hope Cochran
 

Hope Cochran
	 	By:

Name:
	 	/s/ Keith O. Cowan
 

Keith O. Cowan
	 	 
	Title:

	 	Senior Vice
President, Finance
and Treasurer
	 	Title:
	 	Vice President	 	 
	 
	 	 	 	 	 	 	 	 
	COMCAST MVNO II, LLC	 	BHN SPECTRUM INVESTMENTS, LLC	 	 
	 
	 	 	 	 	 	 	 	 
	By:

	 	/s/ Robert S. Pick
	 	By:
	 	/s/ Leo Cloutier	 	 
	 

	 	 
	 	 	 	 	 	 
	Name:

	 	Robert S. Pick
	 	Name:
	 	Leo Cloutier	 	 
	Title:

	 	Senior Vice President
	 	Title:
	 	Senior Vice President,
Strategy & Development
	 	
	 
	 	 	 	 	 	 	 	 
	TWC WIRELESS LLC	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	By:

	 	/s/ David Christman	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	Name:

	 	David Christman	 	 	 	 	 	 
	Title:

	 	Senior Vice President &
Assistant Secretary	 	 	 	 	 	 






58









 






Schedule 2.2.1(b)




[*****]




59









 








Schedule 2.2.2




[*****]




60









 








Schedule 2.2.3(b)




[*****]




61









 








Schedule 2.2.4(a)




[*****]





62









 








Schedule 2.2.4(c)




[*****]




63









 








Schedule 2.3.5(b)




[*****]




64









 








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
                    , 2008 (as amended, modified
or supplemented from time to time, the “4G MVNO Agreement”) among Clearwire Communications LLC
(“Clearwire”), 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, Clearwire
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 Clearwire 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:



     CLEARWIRE COMMUNICATIONS LLC



     By:
                                          
            
      



     Its:
                                    
          
         
    



     Dated:
                                      
          
       



     GOOGLE INC.



     By:
                                          
            
      



     Its:                                               
         
    



     Dated:
                                      
          
       




65









 








EXHIBIT A




4G MVNO Agreement




[attached]





66









 








Schedule 2.4(a)(2)




Intel Opt-In Agreement




Clearwire Communications 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, Clearwire
Communications LLC (“Clearwire”) 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
Clearwire 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 Clearwire 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.



67









 





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



AGREED AND ACCEPTED:




CLEARWIRE COMMUNICATIONS LLC




By:   
              
              
             
            

Its:      
                 
                 
                 

Dated:          
                                           




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
                    ,
2008, as amended, restated, modified or supplemented from time to time (the “MVNO Agreement”),
among Clearwire Communications 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 Clearwire 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:	 	 	 	 
	 

	 	 	 	 	 	 






71









 








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[ • ]




Clearwire Communications LLC

4400 Carillon Point

Kirkland, Washington 98033



Re: 4G MVNO Agreement dated as of [the date hereof][November 28, 2008] (as amended, modified or
supplemented from time to time, the “4G MVNO Agreement”) by and among Clearwire
Communications LLC, 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 Clearwire under the 4G MVNO
Agreement, in consideration of the promises, covenants and agreements of Clearwire 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 Clearwire 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


85









 






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 Clearwire, or Clearwire, 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.



86









 





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



	 	 	 	 	 
	 

	 	[SIG PARTY ULTIMATE PARENT]	 	 
	 
	 
	 	 	 	 
	 

	 	 

Name:
	 	 
	 

	 	 
	 	 
	 

	 	Title:	 	 
	 

	 	 
	 	 





Accepted and Agreed:




	 	 	 	 	 
	CLEARWIRE COMMUNICATIONS LLC	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

Name:
	 	 
	 

	 	Title:	 	 







87









 








ATTACHMENT 3




New Clearwire Corporation 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 Clearwire, 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:



Clearwire Corporation, formerly known as New Clearwire 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
Clearwire Communications LLC (“Clearwire”) and each of its other Controlled Affiliates 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


88









 






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.



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.



89









 





     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.



	 	 	 	 	 
	 

	 	CLEARWIRE CORPORATION,

formerly known as NEW CLEARWIRE 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