exv10w34







Exhibit 10.34




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.




IT MASTER SERVICES AGREEMENT




     This INFORMATION TECHNOLOGY (IT) MASTER SERVICES AGREEMENT is made as of November 28, 2008,
(the “Effective Date”) between SPRINT SOLUTIONS, INC., a Delaware corporation acting as contracting
agent on behalf of Sprint Communications Company L.P. and other applicable Sprint affiliated
entities providing the Products and Services (“Sprint”) and CLEARWIRE COMMUNICATIONS LLC, a
Delaware limited liability corporation (“Clearwire”).



BACKGROUND




     Sprint and other entities have entered into a Transaction Agreement and Plan of Merger having
an Execution Date of May 7, 2008 (the “TAPM”).



     Pursuant to the TAPM, Clearwire will be formed and Sprint desires to enter into this Agreement
with Clearwire to provide, or cause to be provided, to Clearwire for the consideration specified in
this Agreement, certain services on the terms and conditions described in this Agreement.



     In consideration of the mutual terms and conditions of this Agreement, the parties agree as
follows:



     1. General



          (a) Definitions. Terms used in this Agreement with initial capital letters have the meanings
set forth or cross-referenced below.



“Affiliate” means, with respect to any Person, any other Person directly or indirectly Controlling
or Controlled by or under direct or indirect common Control with that Person.



“Agreement” is defined in Section 1(b) below.



“Competitor of Sprint” means any of the following (including any Controlled Affiliate of the
following and any successor (whether by merger, operation of law or otherwise) to any of the
following or any of their Controlled Affiliates): AT&T Inc., Verizon Communications Inc., and
Verizon Wireless.



“Control” (including the correlative terms “controlling”, “controlled by” and “under common control
with”) means the possession, directly or indirectly, of the power to direct or cause the direction
of the management and policies of a legal entity, whether through the ownership of voting
securities, by contract or otherwise.



“Controlled Affiliate” of any Person means:




       (i) each direct or indirect Subsidiary of that Person and of that Person’s parent company,



SPRINT
AND CLEARWIRE CONFIDENTIAL INFORMATION – RESTRICTED




1









 






EXECUTION COPY




       (ii) any Affiliate of the Person that the Person (or its parent) can directly or indirectly
unilaterally cause to take or refrain from taking any of the actions required, prohibited or
otherwise restricted by this Agreement; and



       (iii) such Person’s parent.


“Execution Date” is as defined in the TAPM.



“Fair Market Value” (or “FMV”) [*****].



“Fully Allocated Cost” (or “FAC”) [*****].



“Group” means either the Sprint Group or the Clearwire Group, as the context requires.



“Midpoint or MP” is an amount equal to the (FMV +FAC)/2 or as otherwise agreed to in writing
between the parties



“Clearwire Group” means at any given time, Clearwire Corporation and all Persons in which
Clearwire Corporation is the owner, directly or indirectly, of at least 50% of the Person’s Voting
Stock.



“Person” means an individual, a general or limited partnership, a corporation, a trust, a
joint venture, an unincorporated organization, a limited liability entity, any other entity or
governmental authority.



“Platform” means a hardware architecture or software framework (including application frameworks),
that allows software to run.



“Sprint Group” means, at any given time, Sprint and all Persons in which Sprint is the owner,
directly or indirectly, of at least 50% of the Person’s Voting Stock; except that it does not mean
Clearwire or any member of the Clearwire Group.



“Sprint Cost(s)” means any out of pocket costs (with no mark-up) payable or incurred by Sprint that
would otherwise not have occurred were it not for the services requested by and provided to
Clearwire.



“Third Party” means any Person other than a member of a Group.




          (b) Services. Sprint will provide, or cause to be provided, certain services (“Services”),
which may include but not be limited to the list of Services Applications as referenced in Schedule
A attached to Clearwire on a non-exclusive basis, and subject to validation, by the Parties, of the
Applications to be made available to Clearwire, under the terms and conditions of this Agreement
and any Statement of Work (as defined below) (this Agreement and all attached Statements of Work
are collectively referred to as the “Agreement”). “Statement of Work” or “SOW” means an agreed
document between the parties defining the scope of Services to be provided by Sprint. Each
Statement of Work specifically incorporates the terms of this Agreement. The terms and conditions
of this Agreement control if there is any conflict or inconsistency between the terms and
conditions of a Statement of Work and the terms and conditions of this Agreement (excluding for
this purpose the Statement of Work). Both Parties acknowledge that the OSS platform as listed on
Schedule A will likely not be migrated to Clearwire. The basic form of SOW to be utilized under
this Agreement is set forth in Schedule B, and shall be modified to take into account the various
forms of Services to be provided by Sprint, including but not limited to:




               1. Clearwire-owned Hardware and Software platforms (transferred from Sprint) with data center
services (facilities and labor) provided by the Sprint data centers;



               2. Shared Platforms using co-mingled platforms of Clearwire and Sprint; or



               3. Sprint-owned Hardware and Software platforms.



SPRINT
AND CLEARWIRE CONFIDENTIAL INFORMATION – RESTRICTED




2









 





EXECUTION COPY




          (c) Performance. Sprint will perform all Services in accordance with the terms and
conditions of this Agreement, including, without limitation, the requirements, order of performance
and delivery dates specified in each Statement of Work. Sprint must devote the time, effort and
resources to the performance of the Services as are necessary to accomplish the tasks as specified
in the Statement of Work in a timely and professional manner. Sprint may call on the expertise or
assistance of its subsidiaries, affiliates, subcontractors or consultants listed in any Statement
of Work in the performance of the Services, and will substitute or add any subsidiaries,
affiliates, subcontractors or consultants only with prior written consent of Clearwire; and further
provided that Sprint will at all times remain responsible for the fulfillment of its obligations
under this Agreement, notwithstanding the performance of the obligations by another person. Sprint
will discontinue the use of subcontractors or consultants providing a Service promptly at the
written request of Clearwire. Clearwire will be responsible for any early termination or similar
fees that Sprint owes to the subcontractor or consultant in respect of Services provided by the
subsidiary, affiliate, subcontractor or consultant to Clearwire that are terminated at the request
of Clearwire.




          (d) Additional Services. From time to time after the date hereof, and until the expiration of
the Term, or a termination in accordance with Section 16 below is effective, Clearwire may identify
additional services which Clearwire desires for Sprint to provide to Clearwire (“Additional
Services”). In such event, Clearwire may request in writing that Sprint provide the Additional
Services. The request must set out in reasonable detail the Additional Services being requested.
Within a reasonable time period, but not to exceed thirty days, after receiving the request, Sprint
will either prepare and distribute to Clearwire a draft Statement of Work in respect of the
Additional Services or deliver a notice to Clearwire indicating Sprint’s reasons for declining to
provide the Additional Services. In the event that Sprint does not respond to such request within
thirty days, then such request is deemed to be declined. In all cases, Sprint will cooperate with
Clearwire and, taking into account any restrictions in any underlying vendor agreements or licenses
used by Sprint to support the provision of Services, will act in good faith in determining whether,
and on what terms, Sprint will provide the Additional Services. The foregoing notwithstanding,
Clearwire is not obligated to first make request to Sprint before Clearwire may secure services
from Third Parties, and Sprint will have no obligation to agree to execute a Statement of Work to
provide Additional Services. On execution of a Statement of Work for Additional Services, the
Additional Services will be added to and considered as part of the Services.




          (e) Modification of Services. Sprint may request the consent of Clearwire to the modification
of any Service by sending to Clearwire a proposed change request for the revised Service.
Clearwire must provide any objections to the requested modification within 20 days of receipt of
the proposed change order. The parties must cooperate and act in good faith in negotiating the
change request. Except as otherwise provided for in this Agreement or in any Statement of Work,
Clearwire is not obligated to agree to accept the change request.




          (f) Third Party Software Licenses. Clearwire acknowledges that the parties have attempted to
identify in the applicable Statement of Work any software licensed to Sprint by Third Parties that
is required to provide the Services and any amounts payable in order to permit Sprint to use such
software to provide the Services to Clearwire. The foregoing notwithstanding, if any Third Party
software that is required to provide the Services is not identified in the applicable Statement of
Work, or the amount of any consideration payable in order to permit Sprint to use the software to
provide the Services is not accurately reflected in the applicable Statement of Work, then Sprint
will provide Clearwire with at
least 30 days prior written notice of any additional consideration payable to the licensor of
the software. Clearwire will then have the option to (i) procure its own license to the software
(and obtain consents for Sprint to access the software to perform the Services) at Clearwire’s own
expense or (ii) authorize Sprint




SPRINT
AND CLEARWIRE CONFIDENTIAL INFORMATION – RESTRICTED




3









 





EXECUTION COPY



to incur the required additional consideration on its behalf and
at Clearwire’s expense. If Clearwire does not agree to either (i) or (ii) above, Sprint will not
be required to provide the Services for which the Third Party licenses are required.




          (g) Exclusions. The Intellectual Property Agreement between Clearwire and Sprint Nextel
Corporation, dated as of the Effective Date, will control the following transactions, which are not
within the scope of this Agreement: (i) assignment of Proprietary Sprint Group Software and
Proprietary Information and Materials to Clearwire Group; (ii) Sprint Group Software Licenses
granted to Clearwire Group, and Licenses granted to Clearwire Group for Proprietary Information and
Materials; and (iii) Software Licenses granted to Sprint Group, and Licenses granted to Sprint
Group for Proprietary Information and Materials (terms with initial capital letters have the
meanings set forth in Exhibit T).




     2.  Financial Terms



          (a) Fees and Invoices




               (i) Fees. “Fees” shall mean the fees payable by Clearwire to Sprint hereunder in consideration
of Sprint’s provision of the Services, as specified in, and calculated pursuant to, any SOW.
Certain Fees will vary depending upon whether a given Platform is migrated from Sprint to
Clearwire, as further described in (ii) and (iii) below. All other Fees will be negotiated in good
faith by the parties for the Services and deliverables described in each SOW. The Fees specified in
any SOW will be reviewed and reassessed on an annual basis beginning on the third anniversary of
the TAPM closing date, or earlier if the agreed to migration period for a migrated Platform, as
outlined in Schedule A, expires. Any disputes regarding such review of the Fees will be resolved in
accordance with Section 5, Dispute Resolution. To the extent the Services and deliverables
fall into one of the categories below, the Fees are to be structured as follows:



                    (A) Clearwire-owned Hardware and Software platforms with data center services (facilities and
labor) provided by the Sprint data centers — Fees are to compensate Sprint for the shared
infrastructure Services.



                    (B) Shared Platforms using co-mingled platforms of Clearwire and Sprint — Fees are to
compensate Sprint for the shared infrastructure Services.



                    (C) Sprint-owned Hardware and Software platforms — Fees are to compensate Sprint for the
Sprint provided infrastructure Services.



                    (D) Miscellaneous Services — Fees are to compensate Sprint for the Sprint provided
infrastructure services or shared infrastructure Services, as applicable.



               (ii) Fees — Migrated Platforms. The parties will act in good faith to establish and prioritize
a timeline for the migration of those Platforms, as referenced Schedule A, and Clearwire will make
commercially reasonable efforts to migrate these Platforms within the Initial Term of this
Agreement, and the Parties will use the following methodology to determine Fees:



                    (1) Fees will generally be equal to Sprint Cost to provide the Service to Clearwire during the
migration period for each Platform.



                    (2) Where Sprint provides internal resources solely to support a Clearwire migration
requirement (i.e., there is no Sprint requirement for the Service) Fees will be charged to
Clearwire on a time and materials basis with no mark-up.



SPRINT
AND CLEARWIRE CONFIDENTIAL INFORMATION – RESTRICTED




4









 





EXECUTION COPY




                    (3) Where Sprint must obtain vendor services and deliverables to provide the Services, the
Fees will be the total amounts charged to Sprint, and will be passed through to Clearwire with no
mark-up.



                    (4) After the end of the agreed migration period for each migrated Platform, Sprint may, in
Sprint’s sole discretion, increase the Fees above Fair Market Value as an incentive for Clearwire
to migrate off a given Platform or Platforms.



               (iii) Fees — Platforms not Migrated. For Platforms that will not be migrated, Fees will be
equal to the Midpoint value of the Services and deliverables provided to Clearwire by Sprint.



               (iv) Invoices. The charges for the Services are set out in the applicable Statement of Work.
Sprint must submit in writing to Clearwire, no more than once per month, a single invoice covering
all amounts payable for the Services rendered during the billing period covered by the invoice.
The invoices will contain a detailed description of the Services rendered during the previous
month, the charges payable by Clearwire in respect of these Services and the method used to
calculate the invoiced amounts. Clearwire will pay all undisputed invoiced charges in full
promptly on receipt of each invoice, but in no event later than 45 days after receipt of the
invoice. Clearwire will give Sprint written notice of any disputed charges within 90 days of the
due date for payment of the disputed charges, along with a detailed description of the nature of
the dispute. Sprint will notify Clearwire of its determination regarding disputed charges within
30 days after receipt of the applicable dispute notice and description from Clearwire, and will
demand payment or credit Clearwire’s account, as appropriate, within the 30-day period. Any
dispute under this Section 2(a) will be resolved in accordance with the dispute resolution
provisions of Section 5. Clearwire will pay Sprint the lesser of a 1.5% monthly fee, or up
to the maximum interest charge allowed by law, on all undisputed past due invoices, which 1.5%
monthly fee will be applied to the time period during which past due amounts are undisputed. In
addition, Sprint may take other action to compel payment of undisputed past due amounts, including
suspension or termination of Services, but only after giving written notice in accordance with
Section 17, Notice, to Clearwire of the undisputed past due amounts, and failure of
Clearwire to pay the undisputed past due amounts within the 20 day period following the date that
such notice was deemed provided under Section 17. Sprint acknowledges that any suspension
or termination of Services would cause significant business interruption to Clearwire and thus
Sprint agrees to make commercially reasonable efforts to resolve any such non-payment of undisputed
past due amounts prior to any suspension or termination of Services. Sprint’s acceptance of late
or partial payments is not a waiver of its right to collect the full amount due. Clearwire’s
payment obligations include late charges and third party collection costs incurred by Sprint,
including, but not limited to, reasonable attorneys’ fees, if Clearwire fails to cure its breach of
any payment terms.



          (b) Non-Income Taxes. In addition to the charges for Services, Clearwire must pay Sprint an amount
equal to all Non-Income Taxes incurred in connection with the provision of Services.
Notwithstanding the foregoing, each party is also responsible for (i) Taxes chargeable or assessed
with respect to its own employees or agents and (ii) all real and personal property Taxes imposed
on software and equipment it owns, except in the case of both (i) and (ii) to the extent such
employees or such property is devoted to providing Services to Clearwire. Clearwire will advise
Sprint if it determines that any Services are exempt from taxation and
the parties will use reasonable efforts to mitigate any applicable Taxes. For purposes of this
Agreement, “Non-Income Taxes” shall mean all Taxes except income and franchise Taxes and “Tax”
shall mean all forms of taxation or duties imposed, or required to be collected or withheld,
including charges, together with any related interest, penalties or other additional amounts.




SPRINT
AND CLEARWIRE CONFIDENTIAL INFORMATION – RESTRICTED




5









 





EXECUTION COPY




          (c) Expense Reimbursement. Except to the extent provided otherwise in the Statement of Work,
Clearwire will reimburse Sprint for all reasonable, undisputed expenses for travel, meals and
lodging incurred by Sprint in the performance of its obligations under this Agreement. The charges
for which reimbursement is sought must be estimated in advance by Sprint and such estimate must be
agreed to by Clearwire in writing. Expenses must be in compliance with Sprint’s employee expense
policies, found at: http://webcon.corp.sprint.com/webcon/llisapi.dll?func=doc.Fetch&nodeid=2914488.



Expenses will be charged at cost with no mark-up. Sprint will maintain documentation of expenses
incurred and will retain copies of invoices or receipts for expenses in accordance with its
established expense policy. Sprint will make copies of all documentation and receipts that it
retains available to Clearwire upon request. Sprint will bill Clearwire monthly for expenses as
they accrue. The parties may specify any additional limitations or other requirements related to
the reimbursement of expenses in the applicable Statement of Work. It is acknowledged and agreed
that if Sprint is reasonably required to incur expenses beyond the limitations set forth in a
Statement of Work to provide the Services, then Sprint will be excused from performing the Services
until the expense limitation is removed or changed as mutually agreed, provided that Sprint will
give Clearwire reasonable notice of the need to exceed any such limitation prior to suspension of
any of the Services.




          (d) Records.




               (i) Sprint Records. Sprint must maintain complete and accurate records to substantiate
Sprint’s charges billed under this Agreement. Unless otherwise specified in a Statement of Work,
Sprint will retain such records for a period at least as long as the period for which Sprint
maintains comparable records for its own account, which period must be at least as long as may be
required by law.



               (ii) Clearwire Records. Clearwire must maintain complete and accurate records to substantiate
Clearwire’s compliance with software licensing terms of this Agreement and any Statement of Work.
Unless otherwise specified in a Statement of Work, Clearwire will retain such records for a period
at least as long as the period for which Clearwire maintains comparable records for its own
account, which period must be at least as long as may be required by law.



          (e) Audits.




               (i) Clearwire Audit — Charges. Clearwire and its authorized agents, at Clearwire’s expense,
and subject to obligations of confidentiality as set forth in this Agreement, certain Third Party
provider restrictions, or as otherwise provided by law, will be allowed access to Sprint’s records
to conduct an audit of the charges to Clearwire, on prior written request during normal business
hours during the term of this Agreement and during the respective periods in that Sprint is
required to maintain the records under Section 2(d) above. Access to the records will be
made at the location where the records are normally maintained. If an audit discloses any error in
favor of Sprint, Sprint will, within 10 Business Days of the over-billing notice, reimburse
Clearwire for the over-billing plus interest at a rate of 1% per month for the period of time
between the date the overpayment was made and the date Sprint reimburses Clearwire.



               (ii) Sprint Audit — Software. In addition to the rights and obligations of the parties under
Section 1(f) (Third Party Software Licenses), Sprint may, at Sprint’s expense and upon
reasonable prior written request, no more than once per year, for the purpose of verifying
Clearwire’s compliance with the requirements of this Agreement, (or more frequently or as otherwise
required by agreement between Sprint and a Third Party, or as required by Sprint’s internal audit
policy), (A) inspect Clearwire’s books and/or records pertaining to the use of the software and the
payment of license fees payable hereunder; (B) inspect and review the computer(s) which Clearwire
has installed and/or uses the software; and (C) inspect and review Clearwire’s networks and/or
computer system on which the software



SPRINT
AND CLEARWIRE CONFIDENTIAL INFORMATION – RESTRICTED




6









 





EXECUTION COPY



could be installed or stored. Notwithstanding the foregoing,
Clearwire acknowledges and agrees that Sprint may require validation of asset counts (e.g.,
software licenses and servers) for operational purposes (e.g., end of life and currency upgrade
projects) and/or for financial purposes (e.g., budget planning and quarterly true-ups with third
party vendors) that will require either Clearwire’s self-certification of asset counts and/or an
audit by Sprint. In these instances, Sprint agrees to provide Clearwire with at least thirty days
advance notice of its request; however, Clearwire agrees to use commercially reasonable efforts to
comply when Sprint reasonably requests an accelerated response. Such request will outline the
reasons necessitating the self-certification and/or audit. Clearwire agrees to comply with such
request, and the parties will mutually schedule any required audit. If an audit reveals the
Clearwire has underpaid fees to Sprint, Clearwire will be invoiced for such underpaid fees based
upon Sprint’s vendor price list in effect at the time the audit is completed.




     3. Term



          (a) Term. This Agreement will become effective as of the date signed below by all parties (the
“Effective Date”), and will continue for 5 years (the “Initial Term”). Clearwire has the right,
subject to Section 16(c) below, to renew this Agreement for one additional 5 year term (the
“Renewal Term”) upon written notice to Sprint of its intent to renew at least 60 days before the
expiration of the then-current term. No Additional Services SOWs will be accepted by Sprint after
the expiration of the Term, or a termination in accordance with Section 16 below is
effective. The Initial Term, the Renewal Term and all early termination rights set forth in this
Agreement are referred to as the “Term.” This subsection is subject to the early termination rights
stated elsewhere in this Agreement or other term periods identified in any attachment or related
Statement of Work.




          (b) SOWs Continue in Effect. Notwithstanding the expiration of the Term or an early
termination of this Agreement, for any outstanding SOW, the terms of this Agreement will continue
in effect until the SOW is fulfilled or terminated.




     4. Confidential Information. Except with the prior consent of the disclosing party,
each party must: (i) limit access to the Confidential Information to its employees, agents,
representatives, subcontractors and consultants who have a need-to-know; (ii) advise its employees,
agents, representatives, subcontractors and consultants having access to the Confidential
Information of the proprietary nature thereof and of the obligations set forth in this Agreement;
and (iii) safeguard the Confidential Information by using a reasonable degree of care to prevent
disclosure of the Confidential Information to Third Parties, but at least that degree of care used
by that party in safeguarding its own similar information or material, but in any event, all such
safeguarding actions to be, at a minimum, in compliance with all applicable laws. These
confidentiality obligations do not apply to the extent that (a) the information is in the public
domain through no fault of the non-disclosing party, (b) the information has been disclosed by the
disclosing party to Third Parties without similar confidentiality obligations attached to the
disclosure or (c) the disclosure of the information is required by judicial or administrative
process or by law and the party has used commercially reasonable efforts to allow the
disclosing party to intervene before the disclosure. “Confidential Information” means any
information marked, noticed, or treated as confidential by a party that the party holds in
confidence, including all trade secret, technical, business, network or systems information, or
other information, including CPNI and other customer and client information, however communicated
or disclosed, relating to past, present and future research, development and business activities.



     5. Dispute Resolution



          (a) General. Except as provided in Section 5(d) below, any controversy or claim arising
out of or relating to this Agreement, or the breach thereof, must first be attempted to be settled
by




SPRINT
AND CLEARWIRE CONFIDENTIAL INFORMATION – RESTRICTED




7









 





EXECUTION COPY



good faith efforts of the parties to reach mutual agreement, and second, if mutual agreement is
not reached to resolve the dispute, by final, binding arbitration as set out in
Section 5(c) below.




               (i) If there is a dispute between the Parties regarding the calculation of FMV, the Parties
will make good faith efforts to resolve the dispute based on a review of actual price estimates
from two or more established information technology services vendors. If the Parties are unable to
resolve such dispute in accordance with Section 5(b) below, then either party may invoke
the appraisal process in Subsection 5(a)(iv) below.



               (ii) If there is a dispute between the Parties regarding the calculation of FAC, the Parties
will make good faith efforts to resolve the dispute based on a review of the elements of the cost
calculation as described in the definition of FAC above. If the Parties are unable to resolve such
dispute, then the dispute will be addressed in accordance with this Section 5 (excluding
Section 5(a)(iv).



               (iii) Any other disputes between the Parties regarding Fees will be addressed in accordance
with this Section 5 (excluding Section 5(a)(iv).



               (iv) Fair Market Value Appraisal Process. Either party may invoke the appraisal process
described in this provision. The party seeking an FMV appraisal will engage an independent
valuation expert from the American Society of Appraisers, the National Association for Certified
Valuation Analysts, or a Certified Public Account with a Business Valuation Analyst accreditation
or any other independent third party appraiser as may be mutually agreed upon by the parties. If
the other party believes such appraisal to be unreasonable, it has the right to engage a separate
appraiser from the same set of organizations. If these independent valuations differ by more than
15%, a third appraisal will be jointly commissioned and the average of the three independent
appraisals will be considered binding. If the initial two appraisals do not differ by more than
15%, the average of the two will be presumed to represent fair market value for purposes of this
Agreement.



          (b) Initial Resolution. Subject to Section 5(e), a party that wishes to initiate the
dispute resolution process must send written notice to the other party with a summary of the
controversy and a request to initiate these dispute resolution procedures. On receipt of the
notice, the parties will first seek agreement through discussions among the directors specified in
the applicable Statement of Work for a minimum of 10 days. If no agreement is reached by the
directors during that period, the parties will continue to seek agreement through discussions among
the vice presidents of the relevant operating divisions of each company (or such other persons as
specified in the applicable Statement of Work) for a minimum of 15 days. If no
agreement is reached by the vice presidents during that period, the parties will continue to seek
agreement through discussions among individuals of each company at the Chief Operating Officer
level or higher for a minimum of 15 days. The individuals specified above may utilize other
alternative dispute resolution procedures to assist in the negotiations to the extent mutually
agreed to between such persons.




          (c) Arbitration.(i) If a dispute has not been resolved by the parties following exhaustion of
the procedures set forth in Section 5(b), either party may demand arbitration by sending
written notice to the other party. The arbitration will be conducted in accordance with the
arbitration rules promulgated under the CPR Institute for Dispute Resolution’s (“CPR”) Rules for
Non-Administered Arbitration of Business Disputes then prevailing. To the extent that the
provisions of this Agreement and the prevailing rules of CPR conflict, the provisions of this
Agreement will govern. The arbitrator(s) will be required to furnish, promptly upon conclusion of
the arbitration, a written decision, setting out the reasons for the decision. The arbitration
decision will be final and binding on the parties, and the decision may be enforced by either party
in any court of competent jurisdiction. Each party will bear its own expenses and an equal share
of the expenses of the third arbitrator and the fees, if any, of the CPR. The prevailing party




SPRINT
AND CLEARWIRE CONFIDENTIAL INFORMATION – RESTRICTED




8









 





EXECUTION COPY



will be entitled to reasonable legal fees and costs, including reasonable expert fees and court or
arbitration costs. If the prevailing party rejected a written settlement offer that exceeds the
prevailing party’s recovery, the offering party will be entitled to its reasonable legal fees and
costs.




          (d) Injunctive Relief. The foregoing notwithstanding, each party will have the right to seek
injunctive relief in any court of competent jurisdiction with respect to any alleged breach by the
other party of Section 4 hereof or any agreement regarding confidential information
contained in any Statement of Work. Such remedy will not be exclusive and will be in addition to
any other remedy that a party may have as a result of any such breach.




          (e) Materiality Threshold. With respect to disputes for charges under any Statement of Work,
no dispute may be initiated by a party pursuant to this Section 5 unless the amount in
dispute is at least $1,000 in regard to any individual Statement of Work or at least $10,000 in the
aggregate (calculated on a monthly basis).




     6. Relationship of Parties



          (a) Independent Contractors. Sprint is an independent contractor in the performance of its
obligations under this Agreement. Neither party has any authority to bind the other party or its
affiliates with respect to Third Parties.




          (b) No Performance. Neither party undertakes by this Agreement or any Statement of Work to conduct
the business or operations of the other party. Nothing contained in this Agreement or any
Statement of Work is intended to give rise to a partnership or joint venture between the parties or
to impose on the parties any of the duties or responsibilities of partners or joint ventures.




     7. Force Majeure



          Neither party will be in default of its obligations under this Agreement for any delays or
failure in performance resulting from any cause or circumstance beyond the party’s reasonable
control as long as the non-performing party exercises commercially reasonable efforts to perform
its obligations in a timely manner. If Sprint incurs travel, meals or lodging expenses in order to
provide Services in a force majeure situation and such expenses exceed the expense authorization
limits in Section 2(c) but are
otherwise reasonable in light of the circumstances, Sprint will not be required to obtain
prior approval of such expenses in order to obtain reimbursement for such expenses from Clearwire.
If any such occurrence prevents Sprint from providing any of the Services, Sprint must cooperate
with Clearwire in obtaining, at Clearwire’s sole expense, an alternative source for the affected
Services, and Clearwire is released from any payment obligation to Sprint with respect to the
Services during the period of the force majeure. If a force majeure condition continues to prevent
a party from performing for more than 60 consecutive days, then the other party may terminate the
applicable Statement of Work.




     8. Indemnification 



          (a)
 Indemnification by Sprint. Sprint will indemnify and defend Clearwire, and each member of
Clearwire’s Group, and each of their respective directors, officers, agents and employees, and each
of the heirs, executors, successors and assigns of any of the foregoing (each, a “Clearwire
Indemnitee”) from and against all claims, damages, losses, liabilities, costs, expenses, reasonable
attorney’s fees, and court or arbitration costs (“Losses”) arising out of a claim by a Third Party
against a Clearwire Indemnitee to the extent resulting from or alleged to have resulted from any
act or omission of Sprint under or related to this Agreement. Sprint’s obligations under this
section will be reduced, but only to the extent that the infringement or violation is caused by
(i) Sprint’s implementation of specifications that were provided or requested by Clearwire into the
Services and such infringement or violation would




SPRINT
AND CLEARWIRE CONFIDENTIAL INFORMATION – RESTRICTED




9









 





EXECUTION COPY



not have occurred but for Sprint’s implementation
of such specifications, or (ii) Clearwire’s continued use of infringing Services after Sprint
provides reasonable notice to Clearwire of the infringement and provides to Clearwire
non-infringing substitute Services of substantially the same functionality and quality or, if
Sprint does not have a commercially reasonable substitute available, has allowed Clearwire to
terminate without any early termination liability. For any third party claim that Sprint receives,
or to minimize the potential for a claim, Sprint may, at its option and expense:




               (1) procure the right for Clearwire to continue using the Services; or



               (2) replace or modify the Services with comparable Services, without material impact on the
features, functionality or pricing of the Services and without material impact on Sprint’s ability
to meet all agreed service levels for the Services; or



               (3) if the remedies stated in clauses (1) and (2) above are not available on commercially
reasonable terms, terminate the Services on reasonable prior notice to Clearwire (without the
imposition of any early termination penalties on Clearwire) and Sprint and Clearwire will
negotiate, pursuant to Section 5, to reach a written agreement on what, if any, monetary
damages (in addition to Sprint’s obligation to defend the claim and pay any damages and attorneys’
fees as required above in this Section 8(a)) are reasonably owed by Sprint to Clearwire as
a result of Clearwire no longer having use of the Services; such damages include, but are not
limited to, the reasonable costs incurred by Clearwire in finding services to replace the Services
being terminated.



          (b) Indemnification by Clearwire. Clearwire will indemnify and defend Sprint, and each member of
Sprint’s Group, and each of their respective directors, officers, agents and employees, and each of
the heirs, executors, successors and assigns of any of the foregoing (each, a “Sprint Indemnitee”)
from and against all Losses arising out of a claim by a Third Party against a Sprint Indemnitee to
the extent resulting from or alleged to have resulted from any act or omission of Clearwire under
or related to this Agreement.




          (c) Intellectual Property Indemnification. Sprint will indemnify and defend the Clearwire
from and against all Losses arising out of any claim by a Third Party that the deliverables under a
Statement of Work and any resulting use or sale of any deliverables constitutes an infringement of
any patent, trademark or copyright or the misappropriation of any trade secret. Sprint’s
obligations under this Section 8(c) will not apply to the extent that the infringement or
violation is caused by:




               (i) modification to a deliverable by Clearwire if the modification was not reasonably
contemplated by the parties and the infringement or violation would not have occurred but for that
modification;



               (ii) the combination of a deliverable by Clearwire with other Third Party products if the
combination was not reasonably contemplated by the parties and the infringement or violation would
not have occurred but for that combination;



               (iii) detailed specifications (e.g. specifying lines of code, as opposed to mere functional
specifications for which Clearwire is not responsible) that were required by Clearwire, if the
infringement or violation would not have occurred but for those detailed product specifications; or



               (iv) Clearwire’s continued use of infringing software after Sprint provides Clearwire with
reasonable advance written notice of the infringement and provides non-infringing replacement
software to Clearwire at no charge.



SPRINT
AND CLEARWIRE CONFIDENTIAL INFORMATION – RESTRICTED




10









 





EXECUTION COPY




          (d) Indemnification Procedures.




               (i) The party seeking indemnification (the “Indemnitee”) must give the party from which
indemnification is sought (the “Indemnitor”) prompt notice when it comes to the Indemnitee’s
attention that the Indemnitee has suffered or incurred, or is reasonably likely to suffer or incur,
any Losses for which it is entitled to indemnification. The notice will include, when known, the
facts constituting the basis for the Third Party claim in reasonable detail. Failure by the
Indemnitee to so notify the Indemnitor will not relieve the Indemnitor of any liability under this
Agreement except to the extent that the failure prejudices the Indemnitor in any material respect.



               (ii) An Indemnitor may elect to defend (and, unless the Indemnitor has specified any
reservations or exceptions, to seek to settle or compromise), at the Indemnitor’s own expense and
by the Indemnitor’s own counsel any Third Party claim. Within 30 days of receipt of the notice (or
sooner, if the nature of the Third Party claim so requires), Indemnitor will notify Indemnitee, in
writing, whether Indemnitor will assume responsibility for defending the Third Party claim, which
election will specify any reservations or exceptions. If after notice from the Indemnitor of its
election to assume the control of the defense the Third Party claim, the Indemnitee is advised by
counsel that because of the facts underlying, or defenses related to the Third Party claim there is
or is reasonably likely to develop a conflict of interest for counsel representing both the
Indemnitor and Indemnitee in the Third Party claim, then the Indemnitee may select and retain
separate counsel, the reasonable fees and expenses of which will be paid by the Indemnitor. If no
conflict of interest exists or is likely to develop, the Indemnitee shall nevertheless have the
right to select and retain separate counsel but the fees and expenses of that counsel will be the
expense of the Indemnitee. In either case, the Indemnitee and its counsel will be allowed to
participate in (but not control) the defense, compromise or settlement of the Third Party claim.
The Indemnitor will not have the right to admit liability on behalf of the Indemnitee and will not
compromise or settle a Third Party claim without the express prior written consent of the
Indemnitee unless the compromise or settlement solely involves the payment of money by the
Indemnitor. If the Indemnitor has elected to assume the defense of the Third Party claim, but has
specified, and continues to
assert, any reservations or exceptions in the notice, then, in any case, the reasonable fees
and expenses of one separate counsel for all Indemnitees will be borne by the Indemnitor.



               (iii) If an Indemnitor elects not to assume responsibility for defending a Third Party claim
or fails to notify an Indemnitee of its election as provided in Section 8(d)(ii), the
Indemnitee may defend the Third Party claim at the cost and expense of the Indemnitor.



               (iv) Unless the Indemnitor has failed to assume the defense of the Third Party claim in
accordance with the terms of this Agreement, no Indemnitee may settle or compromise any Third Party
claim without the consent of the Indemnitor.



               (v) No Indemnitor will consent to entry of any judgment or enter into any settlement of the
Third Party claim without the consent of the Indemnitee if the effect thereof is to permit any
injunction, declaratory judgment, other order or non-monetary relief to be entered, directly or
indirectly, against any Indemnitee.



     9. Warranties



          (a) Mutual Representations and Warranties.




               (i) Each party represents and warrants to the other party that (1) it is validly existing, in
good standing, and is qualified to do business in each jurisdiction where it will conduct



SPRINT
AND CLEARWIRE CONFIDENTIAL INFORMATION – RESTRICTED




11









 





EXECUTION COPY



business under this Agreement; (2) the signing, delivery and performance of this Agreement by the party has
been properly authorized; and (3) no claims, actions or proceedings are pending or, to the
knowledge of the party, threatened against or affecting the party that may, if adversely
determined, reasonably be expected to have a material adverse effect on the party’s ability to
perform its obligations under this Agreement.




(ii) Each party represents and warrants to the other party that the execution, delivery, or
performance of this Agreement will not (1) violate any existing law, regulation, order,
determination or award of any governmental authority or arbitrator, applicable to the party; and
(2) violate or cause a breach of the terms of the party’s governing documents or of any material
agreement that binds the party.




          (b) General Warranties. Sprint warrants that (i) the Services will be provided in a
workmanlike manner; and (ii) Sprint will use an adequate number of personnel to perform the
Services and the personnel utilized by Sprint will possess suitable training, education, experience
and skill to perform the Services. Any additional warranties regarding the Services and associated
deliverables will be negotiated and addressed in the applicable SOW.




          (c) Disclaimer of Warranties. EXCEPT AS OTHERWISE STATED IN THIS AGREEMENT OR EXCEPT FOR ANY
EXPRESS WARRANTIES AGREED TO IN A STATEMENT OF WORK, SPRINT MAKES NO WARRANTIES EXPRESS OR IMPLIED,
IN CONNECTION WITH ANY GOODS OR SERVICES PROVIDED TO CLEARWIRE UNDER THIS AGREEMENT.




     10. Limitation of Liability



          (a) Direct Damages. In no event will a party’s aggregate liability for direct damages for
breach of this Agreement exceed the higher of $10 million, or the total Fees payable by Clearwire
to
Sprint under this Agreement during the 12 months prior to the month in which the event giving rise
to liability occurred, except that this limitation on liability will not apply to any damages
resulting from:





(i) Losses for which a party has an obligation of indemnity under this
Agreement;




(ii) damages resulting from any act or omission of a party that constitutes
gross negligence, willful misconduct or fraud; or




(iii) damages resulting from any breach of Section 4 (Confidential
Information) or Section 8 (Indemnification) of this Agreement by a party.



          (b) Consequential Damages. Neither party will be liable to the other for consequential,
indirect or punitive damages for any cause of action, whether in contract, tort or otherwise,
except for:




               (i) Losses for which a party has an obligation of indemnity under this Agreement; or



               (ii) damages resulting from a breach of Section 4 (Confidential Information) of this
Agreement by a party; or



               (iii) reasonable attorney’s fees incurred in order to enforce the other party’s obligations
under Section 8 of this Agreement.



SPRINT
AND CLEARWIRE CONFIDENTIAL INFORMATION – RESTRICTED




12









 





EXECUTION COPY



Consequential damages include, but are not limited to, lost profits, lost revenue, and lost
business opportunities, whether the other party was or should have been aware of the possibility of
these damages.




     11. Assignment



          This Agreement is binding on, inures to the benefit of, and is enforceable by Sprint,
Clearwire, the members of their Groups (so long as they remain in the Group and thereafter as
provided in this Agreement), and their respective successors, legal representatives and permitted
assigns, in accordance with this Section 11. Except as provided in Section 1(c),
no assignment of this Agreement or of any rights or obligations under this Agreement, in whole or
in part, may be made by either party without the prior written consent of the other party, except
that either party may (i) assign this Agreement to any member of its Group (but only for so long as
the assignee remains a Group member) or (ii) assign this Agreement to a successor entity that
results from a merger, acquisition or sale of all or substantially all of the party’s assets.
Such a delegation does not relieve the delegating party of its obligations under this Agreement.
Any attempted assignment without the required consent is void.




     12. Compliance with Laws



          Sprint and Clearwire must each comply with the provisions of all applicable federal, state,
and local laws, ordinances, regulations and codes (including procurement of required permits or
certificates) in fulfillment of their obligations under this Agreement.




     13. Mutual Cooperation



          (a) Mutual Cooperation. The parties and their respective subsidiaries, affiliates,
subcontractors and consultants providing or receiving services under this Agreement must cooperate
with each other in connection with the performance of the Services under this Agreement, including
producing on a timely basis all Confidential Information that is reasonably requested with respect
to the performance of Services and the transition of Services at the end of the term of this
Agreement, except that the cooperation must not unreasonably disrupt the normal operations of the
parties and their respective subsidiaries and affiliates.




          (b) SOX Access.




                    (i) If requested by Clearwire, Sprint will permit Clearwire reasonable access, upon
reasonable advance notice, to Sprint’s books, records, accountants, accountants’ work papers,
personnel and facilities for the purpose of Clearwire’s testing and verification of the
effectiveness of Sprint’s controls with respect to the Services as is reasonably necessary to
enable the management of Clearwire to comply with its obligations under §404 of the Sarbanes Oxley
Act of 2002 and the rules and regulations of the Securities and Exchange Commission promulgated
thereunder (collectively, “SOX §404”) and to enable Clearwire’s independent public accounting firm
to attest to and report on the assessment of the management of Clearwire in accordance with SOX
§404 and Auditing Standard No.2, as adopted by the Public Company Accounting Oversight Board
(“Auditing Standard No. 2”), or as required by Clearwire’s external auditors. In lieu of providing
such access, Sprint may, in its sole discretion, instead furnish Clearwire with a type II SAS 70
report. Sprint is not required to furnish Clearwire access to any information other than
information that relates specifically to the Services.



                    (ii) Without limiting the generality of, and in order to give effect to, the foregoing
provisions of Section 13(b)(i): 



                         (A) the Parties will cooperate to identify the significant processes of Clearwire for purposes
of Auditing Standard No. 2 and used by Sprint in connection with the provision



SPRINT
AND CLEARWIRE CONFIDENTIAL INFORMATION – RESTRICTED




13









 





EXECUTION COPY



of the Services to
Clearwire under this Agreement;




                         (B) Sprint will develop and maintain comprehensive procedures to adequately test, evaluate
and document the design and effectiveness of its controls over its significant processes;



                         (C) in the event any deficiencies are found as a result of the testing, Sprint and Clearwire
will cooperate in good faith to develop and implement commercially reasonable action plans and
timetables to remedy such deficiencies and/or implement adequate compensating controls;



                         (D) in connection with providing the access contemplated by Section 13(b)(i), Sprint
will cooperate and assist Clearwire’s auditors in performing any process walkthroughs and process
testing that such auditor may reasonably request of the significant processes; and



                         (E) in the event that Sections 13(b)(ii)(A)-(D) do not reasonably enable Clearwire to
comply with its obligations under SOX §404 and enable Clearwire’s registered public accounting
firm to attest to and report on the assessment by the management of Clearwire in accordance with
SOX §404 and Auditing Standard No. 2, then upon reasonable notice, Clearwire will be permitted to
conduct, at its own expense, an independent audit of Sprint’s controls with respect to the
Services solely
to the extent necessary to accomplish such purpose or purposes.



     14. Permits



          Unless otherwise specifically provided for in this Agreement, Sprint must obtain and keep in
full force and effect, at its expense, any permits, licenses, consents, approvals and
authorizations from governmental agencies and other Third Parties (“Permits”) necessary for and
incident to the performance and completion of the Services. Notwithstanding the foregoing,
Clearwire must obtain and keep in full force and effect, at its expense, any Permits related to its
facilities and the conduct of its business.




     15. Trademarks, Tradenames and Other Intellectual Property



          Except as specified in Exhibit T to the TAPM, “Intellectual Property Rights Agreement,”
nothing in this Agreement or any Statement of Work gives authority to one party to use the name,
trademarks, service marks, trade names or domain names of the other party for any purpose
whatsoever. Nothing in this Agreement or any Statement of Work will be deemed to grant to either
party any right or license under any intellectual property of the other party unless the right or
license is expressly granted herein or therein.




     16. Termination



          (a) Termination for Breach. Either party may terminate or cancel any Statement of Work for a
material breach or default of any of the terms, conditions or covenants of this Agreement or such
Statement of Work by the other party, except that the termination or cancellation may be made only
after the expiration of a 30 day period during which the breaching party has failed to cure the
breach after having been given written notice thereof and the dispute resolution procedures in
Section 5 have been exhausted (“Cure Period”). In that event, the non-breaching party may
terminate by giving 10 days written notice of termination to the other party after the expiration
of the Cure Period.




SPRINT
AND CLEARWIRE CONFIDENTIAL INFORMATION – RESTRICTED




14









 





EXECUTION COPY




          (b) Termination for Convenience.(a) Clearwire may terminate this Agreement or any Statement of
Work during the Term of this Agreement for convenience on at least 120 days prior written notice to
Sprint. If Clearwire terminates under this section before the end of the Term, Clearwire must
reimburse Sprint for all Sprint Costs that have been incurred by Sprint after the execution of this
Agreement as a direct result of Sprint’s provision of Services under this Agreement (less that
portion of the amortized costs and prepaid Fees already paid by Clearwire), provided that Clearwire
is entitled to any right, license or title related to any equipment or software delivered to
Clearwire to the extent Sprint has received the applicable Fees from Clearwire and has the ability
to convey the right, license or title.




          (c) Change of Control.




               (i) Other than as permitted under Section 11 (Assignment) above, if at any time during the
Term, a Competitor of Sprint acquires a Controlling interest in Clearwire, Sprint and Clearwire
agree to renegotiate pricing of any or all of the Services being delivered by Sprint within 90 days
following the change in Control to a Competitor of Sprint. If the parties are unable to reach
agreement on new pricing within 90 days, Sprint reserves the right to terminate this Agreement with
180 days’ advance written notice.



               (ii) If Sprint is acquired by a Third Party, Clearwire will have the opportunity to bid on
divested or abandoned assets.



          (d) Transition. In the event of any termination or expiration of the Agreement or any Order
or SOW, Sprint will cooperate reasonably in the orderly wind-down of the Services being terminated
or transitioned to another service provider. Sprint will provide a transition period for Services
not to exceed one hundred twenty (120) days, and Clearwire shall pay Sprint for any Services
associated with such transitional period at prices no higher than quoted under this Agreement,
unless the parties mutually agree to a longer time period. If Clearwire initially designates a
transition period of less than one hundred twenty (120) days, it may unilaterally subsequently
extend the transition period up to the maximum period of one hundred twenty (120) days with five
(5) calendar days’ notice to Sprint. Clearwire may, in its discretion, terminate the transition
period at any time by giving written notice to Sprint. During the transition period, the Parties
will continue to be bound by and perform in accordance with the Agreement and all applicable SOWs
and Orders, except that Sprint may reduce designated support services, if any, in proportion to the
level of Services installed. If Clearwire is in material default of its payment obligations at the
time it requests a Transition Period, Sprint may require the account to be brought current or a
deposit from Clearwire before providing transition services over more than a 30-day period.




     17. Notice



          Unless otherwise set forth in a Statement of Work with respect to the Statement of Work, all
notices or other communications under this Agreement must be in writing and the parties deem them
to be duly given (i) when delivered in person, (ii) on transmission via confirmed facsimile
transmission, if the transmission is followed by delivery of a physical copy thereof in person, via
U.S. first class mail, or via a private express mail courier, or (iii) two days after deposit with
a private express mail courier, in any the case addressed as follows:




SPRINT
AND CLEARWIRE CONFIDENTIAL INFORMATION – RESTRICTED




15









 





EXECUTION COPY




          To Sprint:



Sprint Nextel Corporation

MS: KSOPHH0312 – 3A103

6180 SPRINT PKWY

Overland Park, KS 66251

Fax: (913) 315-6144

Attention: Scott Kalinoski



With a copy to:



Sprint Nextel Corporation

Legal Department

2001 Edmund Halley Drive

M/S VARESPO202-217

Reston, VA 20191

Fax: 866-515-3894

Attention: Director, Commercial Law Group



To Clearwire:



Clearwire Communications LLC

4400 Carillon Point

Kirkland, WA 98033

Fax: (425) 828-8061

Attention: Chief Executive Officer



with a copy to:



Clearwire Corporation

4400 Carillon Point

Kirkland, Washington 98033

Attention: Legal Department

Facsimile No.: (425) 216-7776



Any party may, by notice to the other party, change the address or individuals to which the notices
are to be given. Any notice to Sprint will be notice to all members of the Sprint Group, and any
notice to Clearwire will be notice to all members of the Clearwire Group.




     18. Amendment; Waiver



          This Agreement may be amended or supplemented at any time only by written instrument duly
executed by each party hereto. Any of the terms or conditions of this Agreement may be waived at
any time by the party entitled to the benefit thereof but only by a written instrument signed by
the party waiving the terms or conditions. The waiver of any provision is effective only in the
specific instance and for the particular purpose for which it was given. No failure to exercise
and no delay in exercising, any right or power under this Agreement will operate as a waiver
thereof.




SPRINT
AND CLEARWIRE CONFIDENTIAL INFORMATION – RESTRICTED




16









 





EXECUTION COPY




     19. Severability



          Where any provision of this Agreement is declared invalid, illegal, void or unenforceable, or
any changes or modifications are required by regulatory or judicial action, and any such invalid,
illegal, void or unenforceable provision, or such change or modification, substantially affects any
material obligation of a party hereto, the remaining provisions of this Agreement will remain in
effect and the parties must mutually agree on a course of action with respect to the invalid
provision or the change or modification to the end that the purposes and intent of this Agreement
are carried out.




     20. Survival of Obligations



          The provisions in the Agreement relating to Confidential Information, Indemnification, Dispute
Resolution, Termination, Compensation and Billing, Limitation of Liability, Warranties, and
Trademarks, Tradenames and Other Intellectual Property survive any termination, cancellation or
expiration of this Agreement.




     21. Applicable Law


This Agreement is governed, construed and enforced in accordance with the internal laws of the
State of Delaware, without regard to its conflict of law principles. Venue and jurisdiction shall
be in the state courts of Delaware and the United States Courts for the District of Delaware.




     22. No Unreasonable Delay or Withholding



          Where agreement, approval, acceptance, consent or similar action by Clearwire or Sprint is
required, the action must not be unreasonably delayed or unreasonably withheld.




     23. Third Party Beneficiary Rights



          This Agreement is solely for the benefit of Sprint, Clearwire and the members and former
members of their Groups. With the exception of the parties to this Agreement, there exists no right
of any Third Party (including any employees of any Sprint Group member or any Clearwire Group
member) to claim a beneficial interest in this Agreement or any rights occurring by virtue of this
Agreement.




     24. Specific Performance and Other Remedies



          Each party acknowledges that the rights of each party to consummate the Transactions are
special, unique and of extraordinary character and that, if any party violates or fails or refuses
to perform any covenant or agreement made by it in this Agreement, the non-breaching party or
parties may be without an adequate remedy at law. If any party violates or fails or refuses to
perform any covenant or agreement made by the party in this Agreement, the non-breaching party or
parties may, subject to the terms of this Agreement and in addition to any remedy at law for
damages or other relief, institute and prosecute an Action in any court of competent jurisdiction
to enforce specific performance of the covenant or agreement or seek any other equitable relief.




     25. Priority of Agreements



          If there is a conflict between any provision of this Agreement and the TAPM (or any other
agreement referred to in the TAPM), the provisions of this Agreement will control.




SPRINT
AND CLEARWIRE CONFIDENTIAL INFORMATION – RESTRICTED




17









 





EXECUTION COPY




     26. Counterparts



          This Agreement may be executed in multiple counterparts, each of which will be an original,
but all of which together will constitute one instrument. Each counterpart may consist of several
copies each signed by less than all, but together signed by all, the parties.




     27. Rules of Construction



          This Agreement will be fairly interpreted in accordance with its terms and without any
construction in favor of or against either party.




     28. Further Assurances



          At the request of the other, each party will execute and deliver or cause the members of its
Group to execute and deliver any further documents reasonably necessary to facilitate the
performance of the Services, including but not limited to letters of agency.




     29. Entire Agreement



          This Agreement represents the entire understanding between the parties with the respect to the
provision and receipt of the Services, and the provisions hereof and thereof cancel and supersede
all prior agreements or understandings, whether written or oral, with respect to the Services.
Pre-printed or similar terms and conditions appearing in any purchase order will have no force and
effect. This Agreement is deemed to include all of the Statements of Work attached hereto, each of
which is incorporated herein as if an original part of this writing.




[Signature Page Follows]




SPRINT
AND CLEARWIRE CONFIDENTIAL INFORMATION – RESTRICTED




18









 





EXECUTION COPY




     IN WITNESS WHEREOF, the parties hereto have executed this Agreement through their authorized
representatives.



	 	 	 	 	 
	 	CLEARWIRE COMMUNICATIONS LLC

 	 
	 	By:  	/s/ Hope Cochran
 	 
	 	 	Name:  	Hope Cochran 	 
		 	Title:  
Date: 	Senior Vice President, Finance and Treasurer
November 28, 2008 
	 
	 
	 	SPRINT SOLUTIONS, INC.

 	 
	 	By:  	/s/ Keith O. Cowan
 	 
	 	 	Name:  	Keith O. Cowan 	 
		 	Title:  
Date: 	Vice President
November 28, 2008 
	 
	 



SPRINT
AND CLEARWIRE CONFIDENTIAL INFORMATION – RESTRICTED





19









 





EXECUTION COPY




Schedule A

Services Applications Inventory




	 	 	 
	Major Application Area	 	 
	HR/Supply Chain/Finance Apps (ERP)
	 	 
	Portal
	 	 
	Device Management
	 	 
	Identity Management
	 	 
	Enterprise Application Integration
	 	 
	Data Warehouse
	 	 
	Credit/Address Check
	 	 
	IT Help Desk
	 	 
	Care Knowledge Management

	 	[*****]
	Service and Repair
	 	 
	Inventory Management
	 	 
	Coverage Maps
	 	 
	Customer Trouble Management
	 	 
	Service Outage Notifications
	 	 
	Fraud
	 	 
	Number Resource Management
	 	 
	Network Operations Support (OSS)
	 	 






SPRINT
AND CLEARWIRE CONFIDENTIAL INFORMATION – RESTRICTED




20









 





EXECUTION COPY




Schedule B




Statement of Work Template




     
This Statement of Work No.
           (“SOW”) is effective as of                      (“SOW Effective Date”)
and pursuant to the IT Master Services Agreement between Sprint Solutions, Inc. (“Sprint”) and
Clearwire Communications LLC (“Clearwire”) dated           , 2008 (“the Agreement”).



SOW Snapshot




	 	 	 	 
	Clearwire Sponsoring Organization:
	 	 
	 

	 	 
	Vice President of Organization:
	 	 
	 

	 	 
	Clearwire Project Manager for this Engagement:
	 
	 

	 	 	 
	Program/Project Name:
	 	 
	 

	 	 
	SOW Total Not to Exceed:
	 	 
	 

	 	 
	Provider Personnel On-Site (Y/N):
	 	 
	 

	 	 
	Clearwire Software Tools Utilized?
	 	 
	 

	 	 
	Software Code Delivered?
	 	 
	 

	 	 
	 
	 		 
	Sprint POC
	 		 
	 

	 		 
	Contact Name:
	 		 
	 

	 
	Phone Number:
	 		 
	 

	 
	FAX to send PO:
	 		 
	 

	 
	Email:
	 		 
	 

	 





The parties agree as follows:





	1.0	 	GENERAL




This SOW incorporates the terms and conditions of the Agreement. Except as otherwise indicated,
capitalized terms in this SOW have the same meaning as defined in the Agreement. If there is a
conflict between the terms of the Agreement and this SOW, the Agreement will control unless
otherwise expressly stated in this SOW.





	2.0	 	TERM AND TERMINATION





SPRINT
AND CLEARWIRE CONFIDENTIAL INFORMATION – RESTRICTED




21









 





EXECUTION COPY





	 	2.1	 	The term of this SOW begins on the SOW Effective Date and ends on the earlier
of (a) the date on which the parties agree all Services are completed, (b) the
expiration of the term as set forth in the table below, or (c) termination by Clearwire
in accordance with Section 2.2 below:





	 	 	 
	PLATFORM/APPLICATION	 	TERM
	 
	 	 






	 	2.2	 	Clearwire may terminate the Services in accordance with the table below:





	 	 	 
	PLATFORM/APPLICATION	 	TERMINATION NOTICE
	 
	 	 





3.0 SCOPE OF SERVICES AND DELIVERABLES




Subject to the terms and conditions of the Agreement, beginning on the Effective Date, Sprint will
provide the Services described in this SOW, which may include but is not limited to the interim
support for, and migration of, selected Information Technology (IT) platforms Sprint currently
operates or will share with Clearwire, including but not limited to:




	 	•	 	Clearwire-owned Hardware and Software platforms (transferred from Xohm)
with data center services (facilities and labor) provided by the Sprint data
centers;
	 
	 	•	 	Shared Platforms using co-mingled platforms of Clearwire and Sprint; or
	 
	 	•	 	Sprint-owned Hardware and Software platforms used by Clearwire.




The Services, as further described in Section 5 below, may be supplemented, enhanced, modified or
replaced pursuant to the Change Order process in Exhibit A, or by Section 1(d) Additional
Services, of the Agreement.




SPRINT
AND CLEARWIRE CONFIDENTIAL INFORMATION – RESTRICTED




22









 





EXECUTION COPY





	4.0	 	SERVICE PERFORMANCE LOCATION




Services performed by Sprint will be conducted in Herndon, VA and other sites as mutually agreed to
by the parties.





	5.0	 	SPRINT RESPONSIBILITIES






	 	5.1	 	Service Levels — See Exhibit B.
	 
	 	5.2	 	Reports and Meetings
	 
	 	5.3	 	Roles and Responsibilities — See Exhibit C






	6.0	 	CLEARWIRE RESPONSIBILITIES




Clearwire will be responsible for the following:





	7.0	 	ACCEPTANCE




Clearwire will have the right to inspect and either accept or reject the Services detailed in this
SOW within ___ Business Days of completion of the Services.





	8.0	 	COMPENSATION






	 	8.1	 	Rates/Fees. Upon completion of the Services, Sprint may invoice Clearwire the
applicable Fees, calculated as follows:
	 
	 	8.2	 	Expenses. Travel and other expenses incurred during the performance of this
SOW are eligible for reimbursement, pursuant to the applicable provisions of the
Agreement [and shall not exceed $                    ].
	 
	 	8.3	 	SOW Total Not to Exceed Amount. The total amount invoiced under this SOW,
inclusive of Fees and Expenses, will not exceed $___.






	9.0	 	CHANGES IN SCOPE




All changes to this SOW require a written Change Order that must be executed by authorized
representatives of Sprint and Clearwire, prior to any change of scope being authorized.




SPRINT
AND CLEARWIRE CONFIDENTIAL INFORMATION – RESTRICTED




23









 





EXECUTION COPY





	10.0	 	PROJECT MANAGEMENT AND PERSONNEL






	 	10.1	 	The Sprint Project Manager for Services related to this SOW is as follows:





	 	 	 
	Provider Project Manager
	 
	 

	 	 
	Phone Number(s) 
	 	 
	 

	 
	Fax Number(s)
	 	 
	 

	 
	Email Address
	 	 
	 

	 






	 	10.2	 	Other Sprint Key Positions for Services related to this SOW are as follows:





	 	 	 	 	 
	Name	 	Title	 	Function
	 
	 	 	 	 






	 	10.3	 	The Clearwire project manager for Services related to this SOW is as follows:





	 	 	 
	Clearwire project manager
	 
	 

	 	 
	Phone Number(s) 
	 	 
	 

	 
	Fax Number(s)
	 	 
	 

	 
	Email Address
	 	 
	 

	 






	11.0	 	OTHER DOCUMENTS




The following attachments to this SOW are incorporated by reference:





	12.0	 	ENTIRE AGREEMENT




This SOW and the Agreement, together with attachments, constitute the entire Agreement between
Clearwire and Sprint with respect to the Services and deliverables defined in this SOW.




[Signature Page Follows]




SPRINT
AND CLEARWIRE CONFIDENTIAL INFORMATION – RESTRICTED




24









 





EXECUTION COPY




SIGNED:




	 	 	 	 	 	 	 	 	 
	CLEARWIRE COMMUNICATIONS LLC	 	 	 	SPRINT SOLUTIONS, INC.
	(signature)

	 	 	 	 	(signature)	 
	 

	 	 
	 	 	 	 	 	 
	(print name)

	 	 	 	 	(print name)	 
	 

	 	 
	 	 	 	 	 	 
	(title)

	 	 	 	 	 	(title)	 	 
	 

	 
	 	 	 	 	 
	(date) 

	 	 	 	 	 	(date) 	 	 
	 

	 
	 	 	 	 	 





SPRINT
AND CLEARWIRE CONFIDENTIAL INFORMATION – RESTRICTED




25









 





EXECUTION COPY




EXHIBIT A TO SOW — CHANGE ORDER PROCESS AND FORM



The following procedures will be observed for all Change Orders:





	1.	 	Either party may request a Change Order but all Change Orders must be in writing in the form
attached hereto as Exhibit A-1.
	 
	2.	 	Change Order requests will be processed as soon as reasonably possible but requests
outstanding more than 10 days shall expire.
	 
	3.	 	Change Orders will include the following:






	 	a.	 	A description of any additional work to be performed and/or any changes to the
performance required of either party.
	 
	 	b.	 	A statement of the impact of the work or changes on the scope of services or other
requirements of the Agreement.
	 
	 	c.	 	The estimated timetable to complete the work specified in the Change Order and the
impact, if any, on the delivery schedule, pricing and payments.
	 
	 	d.	 	Specific individuals with management or coordination responsibilities for Sprint and
Clearwire.
	 
	 	e.	 	The documentation to be modified or supplied as part of the work.
	 
	 	f.	 	Estimated cost of additional work to Clearwire and/or hourly rates to be charged.
	 
	 	g.	 	Licenses — Describe extent and restrictions of licenses using application/platform
	 
	 	h.	 	Definitions — List any terms and definitions required for agreement clarity.





SPRINT
AND CLEARWIRE CONFIDENTIAL INFORMATION – RESTRICTED




26









 





EXECUTION COPY




EXHIBIT A-1 TO SOW



CHANGE ORDER FORM





	1.	 	Describe services or changes requested (attach additional pages if necessary)
	 
	2.	 	Change Order requested by:





          Clearwire                                Sprint                     




          Name                                         




          Authorized Signature                                         




          Date                     





	3.	 	Modifications, clarifications or supplements to description of services or changes requested
in paragraph 1, above, if any (attach additional pages if necessary).
	 
	4.	 	Assignment of additional employees and resources (attach additional pages if necessary).






	5.	 	Impact on price delivery schedule, payment schedule and scope of services (attach additional
pages if necessary).





Acceptance or Rejection




Sprint Solutions, Inc.:




	 	 	 	 	 	 	 	 	 
	By:

	 	 	 	 	 	Date:	 	 
	 

	 	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Name:
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Title:
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Accepted:

	 	 	 	 	 	Rejected:	 	 
	 

	 	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Clearwire Communications LLC:	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	By:

	 	 	 	 	 	Date:	 	 
	 

	 	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Name:
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Title:
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Accepted:

	 	 	 	 	 	Rejected:	 	 
	 

	 	 
	 	 	 	 	 	 





SPRINT
AND CLEARWIRE CONFIDENTIAL INFORMATION – RESTRICTED




27









 





EXECUTION COPY




EXHIBIT B TO SOW — SERVICE LEVELS





	 	1.0.	 	Service Provided, Availability and Support






	 	1.1.	 	Service Level Objective






          The standard service level objective for all work under this SOW is the level of
service and remedies that Sprint IT currently provides to its internal customers within the
Sprint Group. Higher service level objectives, if mutually agreed to by Sprint and
Clearwire, will be provided, usually at an additional charge to Clearwire. When higher
service level objectives have been agreed to, they will be listed here.




	 	1.2.	 	Hours of Availability and Maintenance Windows
	 
	 	1.3.	 	Hours of Support
	 
	 	1.4.	 	Constraints on Availability
	 
	 	1.5.	 	Contacting Support
	 
	 	1.6.	 	Clearwire Support Center Response Times
	 
	 	1.7.	 	Severity Definitions and Chart
	 
	 	1.8.	 	Clearwire Notification
	 
	 	1.9.	 	Clearwire Escalation Contact List






	 	2.0.	 	Clearwire Responsibilities
	 
	 	3.0.	 	Performance and Service Level Reviews
	 
	 	4.0.	 	Change Control
	 
	 	5.0.	 	Security Standards and Policies
	 
	 	6.0.	 	Business Continuity Plan
	 
	 	7.0.	 	Dispute Resolution for Service Impacting Outages or Failure to Perform
	 
	 	8.0.	 	Metrics and Reports
	 
	 	9.0.	 	Definitions





SPRINT
AND CLEARWIRE CONFIDENTIAL INFORMATION – RESTRICTED




28









 





EXECUTION COPY




EXHIBIT C TO SOW — ROLES AND RESPONSIBILITIES MATRICES



Attached are the On-going Roles and Responsibilities Matrixes (collectively, the “Ongoing Roles and
Responsibilities Matrices”). Capitalized terms not defined in Ongoing Roles and Responsibilities
Matrices shall have the meanings set forth in this SOW or the Agreement. The level of each Party’s
responsibility with respect to each of the obligations set forth in the Ongoing Roles and
Responsibilities Matrices is specified by the insertion of the letter “O”, “P” or “V” adjacent to
such obligation and beneath such Party’s name. The letter “O” indicates that a Party “Owns” overall
and ultimate accountability for completion of a task. The letter “P” indicates that a Party has a
“Participation” role with respect to a task, and that a Party designated “O” may require such Party
to provide certain resources or perform tasks that may be necessary for the overall task to be
completed, in an amount that is commercially reasonable, under the circumstances. Both Parties will
communicate in an on-going fashion when the “P” is a necessity. The letter “V” indicates that a
Party has “Visibility” with respect to a task, and that such Party has the right, but not the
obligation, to contribute, provide resources or review the process for completion of a task. The
absence of any letter indicates that a Party shall have no right to have an input or any obligation
with respect to a task.




SPRINT
AND CLEARWIRE CONFIDENTIAL INFORMATION – RESTRICTED




29









 






	 	 	 	 	 	 	 	 	 
	Item	 	Task Description	 	Sprint	 	Clearwire	 	Notes