EXHIBIT 10.83 COOPERATION AGREEMENT 800 MHZ SPECTRUM REBANDING

 

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                                                                   EXHIBIT 10.83

 

                              COOPERATION AGREEMENT

                           800 MHZ SPECTRUM REBANDING

 

      This Cooperation Agreement 800 MHz Spectrum Rebanding ("Agreement") is

made as of this 7th day of March 2005, by and between NEXTEL COMMUNICATIONS,

INC., a Delaware corporation ("Nextel"), and NEXTEL PARTNERS INC., a Delaware

corporation ("Nextel Partners"). Nextel and Nextel Partners may be referred to

in this Agreement individually as the "Party" and collectively as the "Parties."

 

                                    RECITALS

 

A.    On August 6, 2004, the Federal Communications Commission ("FCC") released

that certain "Report and Order in the Matter of Improving Public Safety

Communications in the 800MHz Band," in the proceedings under WT Docket 02-55,

commonly and herein referred to as the "800 MHz Rebandng Proceeding." On

December 22, 2004, the FCC released that certain Supplemental Order and Order on

Reconsideration in the same proceeding. For purposes of this Agreement, these

two orders will be referred to individually as the "800 MHz Order" and the "800

MHz Supplemental Order" respectively or collectively as the "Orders."

 

B.    The Orders seek to reallocate spectrum in the 800 MHz band in large part

to help resolve interference to public safety communications. The Orders require

Nextel to pay the full cost of relocation of all 800 MHz band incumbents to

their new spectrum assignments with comparable frequencies.

 

C.    The Orders require Nextel to obtain from Nextel Partners and submit to the

FCC a "Letter of Cooperation" binding Nextel Partners to the obligations imposed

on Nextel to the extent such obligations are necessary or desirable in the

completion of reconfiguration of the 800 MHz band.

 

D.    Nextel Partners has supported Nextel's efforts with respect to the 800 MHz

Rebanding Proceeding based on the understanding that Nextel would bear the costs

associated with any spectrum relinquishment and relocation requirements

ultimately placed on Nextel Partners, that Nextel would ensure that Nextel

Partners is made whole with respect to any spectrum contributions made by Nextel

Partners as part of the rebanding effort, and that the Parties would otherwise

cooperate in good faith to accomplish the requirements of the Orders in a manner

that is mutually beneficial to both Parties and without material disruption to

either Party's operations, rights or responsibilities under the Operating

Agreements (as defined below).

 

E.    So that the Letter of Cooperation may be filed as required by the Orders,

the Parties wish to enter into this Agreement to memorialize their understanding

regarding their respective rights and obligations with respect to the 800 MHz

Rebanding Proceeding and Orders.

 

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                                    AGREEMENT

 

      For mutual consideration, the receipt and sufficiency of which is hereby

acknowledged, the Parties agree as follows:

 

1.      TERM OF AGREEMENT.

 

      This Agreement shall take effect on the date executed by the Parties and

remain in full force and effect until it is either mutually terminated by the

Parties, or all of the activities and undertakings required in the 800 MHz

Rebanding Proceeding, the Orders, and any future orders or rulings in the 800

MHz Rebanding Proceeding are finally accomplished and all Costs (as defined

herein) have been paid.

 

2.      COOPERATION BY AND OBLIGATIONS OF NEXTEL PARTNERS.

 

      Nextel Partners will cooperate in good faith with Nextel to accomplish the

reconfiguration of the 800 MHz band as required by the Orders. Such cooperation

will include, but will not be limited to the following:

 

        (a)   Subject to obtaining approvals or consents from financial

institutions as described below, Nextel Partners will relinquish its 800 MHz

holdings below the 817/862 frequencies and ultimately relocate its system to

frequencies in the 817/862 to 824/869 range (the "ESMR Band"). In the event that

there are insufficient frequencies in the ESMR Band to replace the frequencies

relinquished by Nextel Partners, Nextel Partners will relocate portions of its

system to frequencies using the criteria set forth in Paragraph 3(d) below.

Nextel Partners will use commercially reasonable efforts to obtain all necessary

consents and approvals from its financial institutions to permit it to fulfill

its obligations hereunder before December 31, 2005. If it becomes necessary to

obtain such consents sooner or Nextel requests in writing that Nextel Partners

seek such consents sooner, Nextel Partners will immediately seek such consents

from its financial institutions and Nextel will pay for the actual costs and

expenses associated with obtaining such consents, including reasonable attorneys

fees, provided, that Nextel's obligation to pay for such fees and expenses shall

not exceed in the aggregate $300,000.

 

      For purposes of this Agreement, the spectrum holdings of Nextel Partners

    shall be determined as follows:

 

      (i) Prior to the date designated by the Transition Administrator as the

    start of rebanding of the 800MHz band ("Start Date"), the Parties will

    quantify the frequency holdings of Nextel Partners in the 800MHz band

    ("Pre-Rebanding Holdings") in accordance with Schedule 1.

 

      (ii) The Parties will project the frequency holdings of Nextel Partners in

    the 800MHz band after rebanding ("Post-Rebanding Holdings") using

    substantially the same tools and parameters utilized to determine the

    Pre-Rebanding Holdings as set

 

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    forth on Schedule 1 as soon as such holdings can be determined after the

    Start Date. If the Post-Rebanding Holdings in any area are less than the

    Pre-Rebanding Holdings for that area, there will be a deficiency of

    frequencies for that area (a "Deficiency"). Nextel will eliminate any

    Deficiency using the criteria described in Paragraph 3(d) below.

 

        (b)   As required and subject to obtaining any necessary consents or

approvals from financial institutions as set forth above, Nextel Partners will

temporarily relocate certain of its system to portions of the 800 or 900 MHz

band in order to allow Nextel to clear frequencies for relocation of other

licensees;

 

        (c)   Nextel Partners will perform necessary channel clearing and

retuning procedures of its network to accommodate requests from Nextel as part

of the rebanding benchmarks established by the Orders;

 

        (d)   To the extent necessary to accomplish the rebanding process set

forth in the Orders, Nextel Partners will enter into frequency relocation

agreements with Nextel and other licensees on terms and conditions that are

reasonable and customary within the industry; provided, Nextel Partners has

reasonable opportunity to negotiate and review the terms and conditions of such

agreements and to make reasonable changes as may be required in order for Nextel

Partners to execute such agreements without materially disrupting its operations

and without breaching or otherwise impairing its obligations to other third

parties including, without limitation, its shareholders, vendors, customers and

financial partners;

 

        (e)   Nextel Partners will cooperate with Nextel to prepare and to file

required applications, notices, frequency modifications, cancellations, requests

for assignment, change in control applications and all other federal and state

filings that may be reasonably required to accomplish the rebanding process set

forth in the Orders;

 

        (f)   Subject to the terms and conditions of this Agreement including

Nextel's obligation to timely reimburse Nextel Partners for all Costs (as

defined below) Nextel Partners will take all reasonable action to allow Nextel

to meet all timelines designated by the Orders or the Transition Administrator

(as that term is used in the Orders);

 

        (g)   Nextel Partners and Nextel will cooperate to create reasonable and

necessary documentation and documentation processes as required by the

Transition Administrator to support or evidence the Costs (as defined below).

Nextel Partners will maintain such documentation for a period of four years from

the date incurred or such longer period as Nextel may indicate in writing and

will produce such documents to Nextel or the Transition Administrator within

thirty (30) days of a request for such documentation.

 

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3.      COOPERATION BY AND OBLIGATIONS OF NEXTEL.

 

      Nextel will cooperate in good faith with Nextel Partners to accomplish the

reconfiguration of the 800 MHz band as required by the Orders. Such cooperation

will include, but will not be limited to the following:

 

        (a)   Subject to compliance with all other terms and conditions of this

Agreement, Nextel will be responsible for all relocation agreements with third

party incumbent licensees being relocated pursuant the 800MHz Rebanding

Proceedings and will select all frequencies being exchanged; provided, Nextel

will consult with Nextel Partners as set forth in this Agreement before

exchanging any of Nextel Partners' frequencies. In all of the relocation

agreements in which Nextel Partners' assets are involved, whether as an exchange

or as a surrender of assets, Nextel Partners will be made a signatory to the

Agreement.

 

        (b)   Nextel will communicate on a regular basis with Nextel Partners

regarding the rebanding activities and obligations required of or affecting

Nextel Partners by the Orders and will provide Nextel Partners with reasonable

and sufficient lead times with respect to such rebanding activities and

obligations as will reasonably permit Nextel Partners to accommodate such

rebanding activities and obligations without material disruption to its

operations.

 

        (c)   If Nextel Partners is required to relinquish frequencies on a

temporary basis as part of the rebanding process, Nextel will, as required by

Nextel Partners to avoid a material disruption to its operations, make available

to Nextel Partners frequencies in the 800 and 900 MHz band that are comparable

to those relinquished.

 

        (d)   With respect to all frequencies that Nextel Partners is required

to permanently relinquish or surrender as part of the rebanding process, Nextel

will ensure that Nextel Partners receives an equal amount of comparable

replacement spectrum free and clear of all liens or other encumbrances such that

Nextel Partners shall, at the conclusion of the rebanding process, hold licenses

for frequencies in substantially the same amount and with substantially the same

operating characteristics as Nextel Partners held prior to the rebanding

process. The Parties agree that the procedures set forth in Paragraph 2(a) above

and Schedule 1 are reasonable and appropriate for identifying any Deficiency.

With respect to the frequencies that Nextel is obligated to make available to

Nextel Partners in each of its areas to replace frequencies surrendered or

relinquished by Nextel Partners, the Parties will apply the following criteria:

 

         (i) In each area in which there is a Deficiency, Nextel Partners will

   first receive contiguous, unencumbered frequencies in the ESMR Band

   sufficient to replace all surrendered or relinquished frequencies in such

   area;

 

         (ii) To the extent there are insufficient contiguous frequencies in the

   ESMR Band in any area to replace all of the frequencies surrendered or

   relinquished by

 

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   Nextel Partners in that area, Nextel Partners will first receive as many

   contiguous, unencumbered frequencies as are available in that area, and

   then Nextel Partners will receive non-contiguous frequencies in the ESMR

   Band in that area to fully replace all surrendered or relinquished

   frequencies in that area;

 

         (iii) To the extent there are insufficient contiguous and

   non-contiguous frequencies in the ESMR Band in any area to replace all of the

   frequencies surrendered or relinquished by Nextel Partners in that area,

   Nextel Partners will first receive as many contiguous and non-contiguous,

   unencumbered frequencies as are available in the ESMR Band in that area and

   then such additional contiguous, unencumbered frequencies in the 900 MHz SMR

   Band in that area as required to fully replace all surrendered or

   relinquished frequencies in that area;

 

         (iv) To the extent there are insufficient frequencies in the ESMR Band

   and the 900 MHz SMR Band in any area to replace all of the frequencies

   surrendered or relinquished by Nextel Partners in that area, Nextel Partners

   will first receive frequencies as set forth in subparagraphs (i)-(iii) above,

   and then such additional unencumbered, contiguous frequencies in the ESMR

   Band or the 900 MHz SMR Band (at Nextel Partners' option) in any other market

   operated by Nextel Partners as Nextel Partners may designate in order to

   replace all relinquished or surrendered frequencies. In the event of a

   Deficiency in a Non-Border area (as the term Non-Border is defined by the

   Orders), Nextel Partners may only select a Non-Border area for replacement

   frequencies under this Paragraph 3(d)(iv). The Parties acknowledge that the

   FCC has yet to designate a new 800MHz band plan for Border regions (as the

   term is defined by the Orders) and agree to cooperate in good faith using the

   general parameters of this Agreement to resolve any Deficiency in any Border

   area.

 

        (e)   Nextel will reimburse Nextel Partners for all costs, fees, and

expenses incurred by Nextel Partners in connection with its performance of its

obligations under this Agreement, the Orders, and any future orders or rulings

in the 800 MHz Rebanding Proceeding, including, without limitation, internal

labor costs (including costs of any consultants or third parties hired to

accomplish the rebanding efforts under this Agreement), out of pocket costs,

increased capital expenditures, capacity sites required to prevent a material

disruption of the operations of Nextel Partners' communications system during

the transition to the reconfigured band plan, changes to cell sites required to

comply with the rebanding efforts, equipment costs incurred to retune or deploy

operations on alternative frequencies, Transition Administrator fees and costs,

licensing coordination and filing fees and costs, and legal fees and costs

(collectively "Costs"). All of the Costs and actions must be reasonable.

Furthermore, the Parties will at the beginning of every calendar quarter meet or

conduct a conference call to share all plans, expenditures or actions of Nextel

Partners in the upcoming quarter that are related to rebanding of the 800MHz

band. The Parties at that time will further cooperate to ensure that all

proposed actions of the Parties under this Agreement are being completed in an

efficient manner.

 

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        (f)   Nextel will reimburse all Costs on a monthly basis regardless of

whether the Costs are deemed reimbursable or creditable by the Transition

Administrator, the FCC or otherwise and regardless of the timing of any

reimbursement or credit by the Transition Administrator, the FCC or any other

third party. Nextel Partners will itemize the Costs in a monthly settlement

invoice in a level of detail required by the Transition Administrator as further

described in Paragraph 2(g) above. Nextel will pay the invoice in full within

thirty (30) days of receipt. A late payment charge of the greater of one and one

half percent (1-1/2%) per month or the maximum interest rate permitted by law

will be applied to any unpaid balance of any invoice delivered by Nextel

Partners under this Agreement, if the payment is not paid within the allotted

thirty (30) days. If Nextel believes that any invoice or charge is incorrect or

lacks sufficient detail, Nextel will pay the invoice in full before the

expiration of the allotted thirty (30) days and notify Nextel Partners in

writing of the nature of the discrepancy. Within ten (10) days of its receipt of

Nextel's written notice, Nextel Partners will make a determination of the

correct amount of the invoice or otherwise provide additional documentation as

required by this Agreement and provide written notice to Nextel of its

determination. If, upon review of Nextel Partners' response, Nextel still

believes that a billing error exists, the Parties will resolve their dispute in

accordance with the dispute resolution procedures set forth in Article 12 of the

Operating Agreements (as defined below).

 

4.      MUTUAL OBLIGATIONS OF THE PARTIES

 

        (a)   Good Faith. With respect to all activities and undertakings

required or necessary to comply with the Orders and the 800 MHz Rebanding

Proceeding and any future orders or rulings in the 800 MHz Rebanding Proceeding

with which Nextel or Nextel Partners must comply, whether specifically set forth

in this Agreement or otherwise, the Parties will cooperate in good faith to

accomplish the requirements of the Orders and the 800 MHz Rebanding Proceeding

in a manner that is mutually beneficial to both Parties and that does not

materially disrupt or otherwise materially harm either Party's customers,

operations, valuation and/or their respective rights and responsibilities under

their Operating Agreements (as defined below), including, without limitation,

any such activity undertaken for the purpose of disparaging, degrading,

devaluing or otherwise directly or indirectly injuring , harming, diminishing or

undermining the other Party's customers, operations and/or valuation.

 

        (b)   Operating Agreements. For purposes of this Agreement, the term

"Operating Agreements" means that certain Joint Venture Agreement dated as of

January 29, 1999 by and among Nextel Partners, Inc., Nextel Partners Operating

Corp. and Nextel WIP Corp and the Transaction Documents listed and defined on

Exhibit 1 to the Joint Venture Agreement.

 

        (c)   Indemnification. Each Party (the "Indemnifying Party") will

indemnify and hold harmless the other Party ("Indemnified Party") from and

against any loss, cost, claim liability, damage, expense (including reasonable

attorney's fees) relating to or arising out of any act or omission of the

Indemnifying Party, its officers, employees, agents, or contractors in the

performance of this Agreement. In addition, the

 

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Indemnifying Party will defend any action or suit brought by a third party

against the Indemnified Party for any loss, cost, claim, liability, damage or

expense relating to or arising out of any act or omission by the Indemnifying

Party, its officers, employees, agents, or contractors, in the performance of

this Agreement.

 

         (d)   Confidential Information.

 

              (i)   As used in this Agreement, "Confidential Information" means

      all information of either Party that is not generally known to the public,

      whether of a technical, business or other nature (including, without

      limitation, trade secrets, know-how and information relating to the

      technology, customers, business plans, promotional and marketing

      activities, finances and other business affairs of such Party), that is

      disclosed by one Party (the "Disclosing Party") to the other Party (the

      "Receiving Party") or that is otherwise learned by the Receiving Party in

      the course of its discussions or business dealings with, or its physical

      or electronic access to the premises of, the Disclosing Party, and that

      has been identified as being proprietary and/or confidential or that by

      the nature of the circumstances surrounding the disclosure or receipt

      ought to be treated as proprietary and confidential.

 

              (ii)  The Receiving Party, except as expressly provided in this

      Agreement, will not disclose Confidential Information to anyone without

      the Disclosing Party's prior written consent. In addition, the Receiving

      Party will not use, or permit others to use, Confidential Information for

      any purpose other than as required to fulfill its obligations under this

      Agreement. The Receiving Party will take all reasonable measures to avoid

      disclosure, dissemination or unauthorized use of Confidential Information,

      including, at a minimum, those measures it takes to protect its own

      confidential information of a similar nature.

 

              (iii)  The provisions of this paragraph 4(d) will not apply to any

      information that (A) is or becomes publicly available without breach of

      this Agreement; (B) can be shown by documentation to have been known to

      the Receiving Party at the time of its receipt from the Disclosing Party;

      (C) is rightfully received from a third party who did not acquire or

      disclose such information by a wrongful or tortious act; or (D) can be

      shown by documentation to have been developed by the Receiving Party

      without reference to any Confidential Information.

 

              (i