Common use of Sprint Financing Arrangements Clause in Contracts

Sprint Financing Arrangements. (a) Sprint will, or will cause one or more of its Subsidiaries to, finance the Sprint WiMAX Business between April 1, 2008 and the Closing Date (the “Sprint Pre-Closing Financing”), with Sprint Sub LLC to assume the obligation to repay Sprint (or its applicable Subsidiaries) in respect of the Sprint Pre-Closing Financing prior to the LLC Contribution; provided that (i) Sprint Sub LLC shall not assume, and Sprint shall retain and be responsible for, (x) any portion of the Sprint Pre-Closing Financing that was not incurred to fund the Sprint WiMAX Business, (y) the principal amount of the Sprint Pre-Closing Financing in excess of the total amounts set forth below each month on the Sprint Budget that has elapsed through and including the month in which the Closing occurs and (z) any amount of the Sprint Pre-Closing Financing to the extent such amount was incurred to fund the Sprint WiMAX Business but was not incurred in substantial compliance in the aggregate with the Sprint Budget (provided that, for purposes of this clause (z), spending a lesser amount on the Sprint WiMAX Business than is provided in the Sprint Budget will not constitute substantial non-compliance in the aggregate with the Sprint Budget), and (ii) the terms of the financing to be assumed by Sprint Sub LLC shall be as set forth in Exhibit J (the “Assumed Note”). For the avoidance of doubt, interest shall accrue on any amounts of Sprint Pre-Closing Financing in accordance with the terms of the Assumed Note beginning on the date that any such financing is provided by Sprint as provided by this Section 1.2(a) through but excluding the Sprint Pre-Closing Financing Repayment Date (as defined below). (b) NewCo and NewCo LLC will cause the Sprint Pre-Closing Financing, together with any interest accrued thereon, to be repaid on the first Business Day following the Closing (the “Sprint Pre-Closing Financing Repayment Date”). A portion of the Sprint Pre-Closing Financing will be repaid in cash by wire transfer to Sprint in immediately available funds (the “Cash Payment”) with the remaining portion of the Sprint Pre-Closing Financing being repaid with the issuance of a secured promissory note by Sprint Sub LLC to Sprint (the terms of which note and related agreements shall be substantially as set forth on Exhibit L) (the “Secured Note”). Subject to the following sentence (and subject to any changes in the following amounts as a result of any refinancing of the Credit Agreement on or prior to the Sprint Pre-Closing Refinancing Repayment Date, as described in Exhibit L) and disregarding any interest accrued on the Sprint Pre-Closing Financing, if the amount of the Sprint Pre-Closing Financing is (i) less than or equal to $213 million, then the Cash Payment will equal the amount of the Sprint Pre-Closing Financing; (ii) greater than $213 million but less than or equal to $426 million, then the Cash Payment will equal $213 million and the principal amount of the Secured Note will equal the remaining amount of the Sprint Pre-Closing Financing or (iii) greater than $426 million, then the Cash Payment and the principal amount of the Secured Note will each equal 50% of the Sprint Pre-Closing Financing. All interest that has accrued on the Sprint Pre-Closing Financing in accordance with the terms of the Assumed Note between April 1, 2008 and the Sprint Pre-Closing Financing Repayment Date (the “Pre-Closing Accrued Interest”) will be paid to Sprint on the Sprint Pre-Closing Financing Repayment Date in a combination of cash and added principal to the Secured Note in the same proportion as the Cash Payment and the Secured Note. (c) For a period of 45 days after the Closing Date, Sprint will, and will cause its Subsidiaries to promptly afford NewCo, NewCo LLC and their respective employees, accountants and legal counsel such assistance and access to the books, records, work papers and personnel of Sprint and its Subsidiaries during normal business hours as is reasonably requested by NewCo or NewCo LLC, for the purposes of reviewing the Sprint Pre-Closing Financing assumed by Sprint Sub LLC prior to the LLC Contribution (the “Post-Closing Verification Period”); provided that the Post-Closing Verification Period will be extended as appropriate if Sprint does not provide NewCo, NewCo LLC and such representatives such access for such 45-day period. In the event that NewCo or NewCo LLC in good faith determines that any item or amount of the Sprint Pre-Closing Financing was assumed by Sprint Sub LLC in violation of Section 1.2(a), NewCo or NewCo LLC shall have the right to dispute such item or amount by delivering written notice thereof (the “Objection”) to Sprint on or before the last day of the Post-Closing Verification Period, which notice shall set forth in reasonable detail the basis for its objection(s). Following the receipt of the Objection by Sprint, NewCo and NewCo LLC, on the one hand, and Sprint, on the other hand, shall seek in good faith to resolve any differences which they may have with respect to the matters specified in the Objection. If such Parties are not able to resolve all of the differences specified in the Objection within 30 days after the Objection is received by Sprint, either NewCo or NewCo LLC, on the one hand, or Sprint, on the other hand, may submit the remaining differences to a mutually acceptable and nationally recognized independent accounting firm (who shall not have any material relationship with Sprint or NewCo) (the “Accounting Referee”), to review this Agreement and the remaining disputed item(s) or amount(s) for the purpose of determining whether such item(s) or amount(s) were assumed by Sprint Sub LLC in violation of Section 1.2(a) (it being understood that, to the extent appropriate, the Accounting Referee shall utilize employees of its firm with substantial telecommunications expertise). The Accounting Referee shall deliver to NewCo, NewCo LLC and Sprint, as promptly as practicable, a report setting forth its written determination of the remaining disputed item(s) or amount(s). Such report shall be final and binding xxxx XxxXx, XxxXx LLC and Sprint. The cost of such review and report shall be borne by NewCo LLC. For purposes of this Section 1.2(c), (i) all action taken by NewCo or NewCo LLC shall be determined and directed by the senior management of NewCo unless such action requires action on the part of the NewCo Board of Directors, in which case such action shall be determined and directed by the members of the NewCo Board of Directors other than the Sprint Designees (as such term is defined in the Equityholders’ Agreement) and (ii) the Sprint Designees will recuse themselves from all consideration of these matters. (d) If it is determined in accordance with Section 1.2(c), whether by agreement of NewCo, NewCo LLC and Sprint, or in the absence of such agreement, by the Accounting Referee, that the aggregate Sprint Pre-Closing Financing assumed by Sprint Sub LLC prior to the LLC Contribution is in excess of the amount that should have been so assumed (such excess amount, the “Reimbursement Amount”), then, if the Sprint Pre-Closing Financing was less than or equal to $426 million, the principal amount of the Secured Note (if the Secured Note has been issued pursuant to Section 1.2(b)) will be reduced by the Reimbursement Amount and, if the Reimbursement Amount is greater than the principal amount of the Secured Note, or if the Secured Note has not been issued pursuant to Section 1.2(b), Sprint shall, promptly after the date of such determination (but in no event later than two Business Days thereafter), pay to Sprint Sub LLC the remaining portion of the Reimbursement Amount in cash by wire transfer of immediately available funds to a bank account designated by NewCo LLC. If the Sprint Pre-Closing Financing was greater than $426 million, then Sprint will pay 50% of the Reimbursement Amount to Sprint Sub LLC in cash in the manner provided in the immediately preceding sentence and the principal amount of the Secured Note will be reduced by 50% of the Reimbursement Amount (but not below zero); provided that in no event will such cash payment by Sprint reduce the net Cash Payment below $213 million unless the principal amount of the Secured Note has been reduced to zero, in which case Sprint will pay to Sprint Sub LLC any remaining portion of the Reimbursement Amount in cash as set forth in this Section 1.2(d). (e) Upon the repayment (whether in cash or in a reduction in principal amount of the Secured Note) of the Reimbursement Amount, if applicable, Sprint will be required to repay to Sprint Sub LLC an amount of the Pre-Closing Accrued Interest equal to all interest that accrued in respect of the Reimbursement Amount from the date of incurrence through but excluding the Sprint Pre-Closing Financing Repayment Date in accordance with the Sprint Pre-Closing Financing. Any Pre-Closing Accrued Interest that is required to be repaid will be repaid in a combination of cash and reduction in principal amount of the Secured Note in the same proportion as the Reimbursement Amount. Any reduction in the principal amount of the Secured Note pursuant to this Section 1.2(e) will be effective as of the Sprint Pre-Closing Financing Repayment Date. (f) In addition, (i) the portion of the Reimbursement Amount that Sprint is required to repay in cash and (ii) the interest, if any, paid by Sprint Sub LLC to Sprint pursuant to the Secured Note with respect to the portion of the Reimbursement Amount for which the Secured Note is reduced pursuant to Section 1.2(e), shall bear interest for each Interest Period from and including (x) in the case of clause (i), the Sprint Pre-Closing Financing Repayment Date and (y) in the case of clause (ii), the date on which any such interest was paid, to but excluding the date of payment pursuant to Section 1.2(d) at a rate per annum equal to LIBOR plus 250 basis points. Such interest shall be payable at the same time as the payment to which it relates and shall be calculated daily on the basis of a year of 360 days and the actual number of days elapsed. Any interest that is required to be repaid on the Reimbursement Amount will be repaid in a combination of cash and reduction in principal amount of the Secured Note in the same proportion as the Reimbursement Amount. (g) If, as of December 1, 2008, it appears that the Closing may not occur by December 31, 2008, to the extent permitted by Law, the Parties shall work in good faith to modify the Sprint Budget to address the period after December 31, 2008 through the anticipated Closing Date. The budget for the post-December 31, 2008 period shall include (i) expenditures necessary or appropriate for the maintenance and continuation of the Sprint WiMAX Business as operated from April 1, 2008 through December 31, 2008 and (ii) if agreed by the Parties acting in good faith, additional expenditures for the further expansion of the Sprint WiMAX Business (it being understood that such budget will be developed with a view toward maintaining a cost structure that is as low as reasonably practicable consistent with the foregoing principles). If, 30 days prior to any date through which the Sprint Budget has been modified in accordance with this

Sprint Financing Arrangements. (a) Sprint will, or will cause one or more of its Subsidiaries to, finance the Sprint WiMAX Business between April 1, 2008 and the Closing Date (the “Sprint Pre-Closing Financing”), with Sprint Sub LLC to assume the obligation to repay Sprint (or its applicable Subsidiaries) in respect of the Sprint Pre-Closing Financing prior to the LLC Contribution; provided that (i) Sprint Sub LLC shall not assume, and Sprint shall retain and be responsible for, (x) any portion of the Sprint Pre-Closing Financing that was not incurred to fund the Sprint WiMAX Business, (y) the principal amount of the Sprint Pre-Closing Financing in excess of the total amounts set forth below each month on the Sprint Budget that has elapsed through and including the month in which the Closing occurs and (z) any amount of the Sprint Pre-Closing Financing to the extent such amount was incurred to fund the Sprint WiMAX Business but was not incurred in substantial compliance in the aggregate with the Sprint Budget (provided that, for purposes of this clause (z), spending a lesser amount on the Sprint WiMAX Business than is provided in the Sprint Budget will not constitute substantial non-compliance in the aggregate with the Sprint Budget), and (ii) the terms of the financing to be assumed by Sprint Sub LLC shall be as set forth in Exhibit J (the “Assumed Note”). For the avoidance of doubt, interest shall accrue on any amounts of Sprint Pre-Closing Financing in accordance with the terms of the Assumed Note beginning on the date that any such financing is provided by Sprint as provided by this Section 1.2(a) through but excluding the Sprint Pre-Closing Financing Repayment Date (as defined below). (b) NewCo and NewCo LLC will cause the Sprint Pre-Closing Financing, together with any interest accrued thereon, to be repaid on the first Business Day following the Closing (the “Sprint Pre-Closing Financing Repayment Date”). A portion of the Sprint Pre-Closing Financing will be repaid in cash by wire transfer to Sprint in immediately available funds (the “Cash Payment”) with the remaining portion of the Sprint Pre-Closing Financing being repaid with the issuance of a secured promissory note by Sprint Sub LLC to Sprint (the terms of which note and related agreements shall be substantially as set forth on Exhibit L) (the “Secured Note”). Subject to the following sentence (and subject to any changes in the following amounts as a result of any refinancing of the Credit Agreement on or prior to the Sprint Pre-Closing Refinancing Repayment Date, as described in Exhibit L) and disregarding any interest accrued on the Sprint Pre-Closing Financing, if the amount of the Sprint Pre-Closing Financing is (i) less than or equal to $213 million, then the Cash Payment will equal the amount of the Sprint Pre-Closing Financing; (ii) greater than $213 million but less than or equal to $426 million, then the Cash Payment will equal $213 million and the principal amount of the Secured Note will equal the remaining amount of the Sprint Pre-Closing Financing or (iii) greater than $426 million, then the Cash Payment and the principal amount of the Secured Note will each equal 50% of the Sprint Pre-Closing Financing. All interest that has accrued on the Sprint Pre-Closing Financing in accordance with the terms of the Assumed Note between April 1, 2008 and the Sprint Pre-Closing Financing Repayment Date (the “Pre-Closing Accrued Interest”) will be paid to Sprint on the Sprint Pre-Closing Financing Repayment Date in a combination of cash and added principal to the Secured Note in the same proportion as the Cash Payment and the Secured Note. (c) For a period of 45 days after the Closing Date, Sprint will, and will cause its Subsidiaries to promptly afford NewCo, NewCo LLC and their respective employees, accountants and legal counsel such assistance and access to the books, records, work papers and personnel of Sprint and its Subsidiaries during normal business hours as is reasonably requested by NewCo or NewCo LLC, for the purposes of reviewing the Sprint Pre-Closing Financing assumed by Sprint Sub LLC prior to the LLC Contribution (the “Post-Closing Verification Period”); provided that the Post-Closing Verification Period will be extended as appropriate if Sprint does not provide NewCo, NewCo LLC and such representatives such access for such 45-day period. In the event that NewCo or NewCo LLC in good faith determines that any item or amount of the Sprint Pre-Closing Financing was assumed by Sprint Sub LLC in violation of Section 1.2(a), NewCo or NewCo LLC shall have the right to dispute such item or amount by delivering written notice thereof (the “Objection”) to Sprint on or before the last day of the Post-Closing Verification Period, which notice shall set forth in reasonable detail the basis for its objection(s). Following the receipt of the Objection by Sprint, NewCo and NewCo LLC, on the one hand, and Sprint, on the other hand, shall seek in good faith to resolve any differences which they may have with respect to the matters specified in the Objection. If such Parties are not able to resolve all of the differences specified in the Objection within 30 days after the Objection is received by Sprint, either NewCo or NewCo LLC, on the one hand, or Sprint, on the other hand, may submit the remaining differences to a mutually acceptable and nationally recognized independent accounting firm (who shall not have any material relationship with Sprint or NewCo) (the “Accounting Referee”), to review this Agreement and the remaining disputed item(s) or amount(s) for the purpose of determining whether such item(s) or amount(s) were assumed by Sprint Sub LLC in violation of Section 1.2(a) (it being understood that, to the extent appropriate, the Accounting Referee shall utilize employees of its firm with substantial telecommunications expertise). The Accounting Referee shall deliver to NewCo, NewCo LLC and Sprint, as promptly as practicable, a report setting forth its written determination of the remaining disputed item(s) or amount(s). Such report shall be final and binding xxxx uxxx XxxXx, XxxXx LLC and Sprint. The cost of such review and report shall be borne by NewCo LLC. For purposes of this Section 1.2(c), (i) all action taken by NewCo or NewCo LLC shall be determined and directed by the senior management of NewCo unless such action requires action on the part of the NewCo Board of Directors, in which case such action shall be determined and directed by the members of the NewCo Board of Directors other than the Sprint Designees (as such term is defined in the Equityholders’ Agreement) and (ii) the Sprint Designees will recuse themselves from all consideration of these matters. (d) If it is determined in accordance with Section 1.2(c), whether by agreement of NewCo, NewCo LLC and Sprint, or in the absence of such agreement, by the Accounting Referee, that the aggregate Sprint Pre-Closing Financing assumed by Sprint Sub LLC prior to the LLC Contribution is in excess of the amount that should have been so assumed (such excess amount, the “Reimbursement Amount”), then, if the Sprint Pre-Closing Financing was less than or equal to $426 million, the principal amount of the Secured Note (if the Secured Note has been issued pursuant to Section 1.2(b)) will be reduced by the Reimbursement Amount and, if the Reimbursement Amount is greater than the principal amount of the Secured Note, or if the Secured Note has not been issued pursuant to Section 1.2(b), Sprint shall, promptly after the date of such determination (but in no event later than two Business Days thereafter), pay to Sprint Sub LLC the remaining portion of the Reimbursement Amount in cash by wire transfer of immediately available funds to a bank account designated by NewCo LLC. If the Sprint Pre-Closing Financing was greater than $426 million, then Sprint will pay 50% of the Reimbursement Amount to Sprint Sub LLC in cash in the manner provided in the immediately preceding sentence and the principal amount of the Secured Note will be reduced by 50% of the Reimbursement Amount (but not below zero); provided that in no event will such cash payment by Sprint reduce the net Cash Payment below $213 million unless the principal amount of the Secured Note has been reduced to zero, in which case Sprint will pay to Sprint Sub LLC any remaining portion of the Reimbursement Amount in cash as set forth in this Section 1.2(d). (e) Upon the repayment (whether in cash or in a reduction in principal amount of the Secured Note) of the Reimbursement Amount, if applicable, Sprint will be required to repay to Sprint Sub LLC an amount of the Pre-Closing Accrued Interest equal to all interest that accrued in respect of the Reimbursement Amount from the date of incurrence through but excluding the Sprint Pre-Closing Financing Repayment Date in accordance with the Sprint Pre-Closing Financing. Any Pre-Closing Accrued Interest that is required to be repaid will be repaid in a combination of cash and reduction in principal amount of the Secured Note in the same proportion as the Reimbursement Amount. Any reduction in the principal amount of the Secured Note pursuant to this Section 1.2(e) will be effective as of the Sprint Pre-Closing Financing Repayment Date. (f) In addition, (i) the portion of the Reimbursement Amount that Sprint is required to repay in cash and (ii) the interest, if any, paid by Sprint Sub LLC to Sprint pursuant to the Secured Note with respect to the portion of the Reimbursement Amount for which the Secured Note is reduced pursuant to Section 1.2(e), shall bear interest for each Interest Period from and including (x) in the case of clause (i), the Sprint Pre-Closing Financing Repayment Date and (y) in the case of clause (ii), the date on which any such interest was paid, to but excluding the date of payment pursuant to Section 1.2(d) at a rate per annum equal to LIBOR plus 250 basis points. Such interest shall be payable at the same time as the payment to which it relates and shall be calculated daily on the basis of a year of 360 days and the actual number of days elapsed. Any interest that is required to be repaid on the Reimbursement Amount will be repaid in a combination of cash and reduction in principal amount of the Secured Note in the same proportion as the Reimbursement Amount. (g) If, as of December 1, 2008, it appears that the Closing may not occur by December 31, 2008, to the extent permitted by Law, the Parties shall work in good faith to modify the Sprint Budget to address the period after December 31, 2008 through the anticipated Closing Date. The budget for the post-December 31, 2008 period shall include (i) expenditures necessary or appropriate for the maintenance and continuation of the Sprint WiMAX Business as operated from April 1, 2008 through December 31, 2008 and (ii) if agreed by the Parties acting in good faith, additional expenditures for the further expansion of the Sprint WiMAX Business (it being understood that such budget will be developed with a view toward maintaining a cost structure that is as low as reasonably practicable consistent with the foregoing principles). If, 30 days prior to any date through which the Sprint Budget has been modified in accordance with this