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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
