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.
(iv) If the Receiving Party becomes legally obligated to disclose
Confidential Information by any governmental entity with jurisdiction over
it, the Receiving Party will give the Disclosing Party prompt written
notice to allow the Disclosing Party to seek a protective order or other
appropriate remedy. Such notice must include, without limitation,
identification of the information to be so disclosed and a copy of the
order. The Receiving Party will disclose only such information as is
legally required and will use its reasonable best efforts to obtain
confidential treatment for any Confidential Information that is so
disclosed. Notwithstanding the foregoing, either Party may file with the
Securities and Exchange Commission, the Federal Communications Commission
or otherwise disclose the contents of this
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Agreement and either Party may make such other governmental filings as may
be required to comply with the Orders or any future orders or rulings in
the 800 MHz Rebanding Proceeding.
5. MISCELLANEOUS.
(a) Amendments. This Agreement may be amended only by a writing
executed by the Parties.
(b) Notices. Any notice, request or other communication required or
permitted hereunder must be in writing and will be duly given: (i) when
received if personally delivered; (ii) within one business day after being
sent by telecopy or facsimile with receipt confirmation; or (iii) within
one business day if sent by priority delivery by established overnight
courier, to the Parties at their respective addresses set forth below:
To Nextel: c/o Nextel Operations, Inc.
0000 Xxxxxx Xxxxxx Xxxxx, 0xx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxxx X. Xxxxxx and Xxxxxxx Xxxxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
To Nextel Partners: Nextel Partners, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxx and Xxxx Aas
Telephone: 000-000-0000 and 000-000-0000
Facsimile: 000-000-0000 and 000-000-0000
With a copy to: Nextel Partners, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attention: General Counsel
Telephone: 000-000-0000
Facsimile: 000-000-0000
(c) Counterparts. This Agreement may be executed in any number of
counterparts, each of which will be deemed to be an original, and all of which
together will constitute one and the same instrument. Counterparts may be
created with original signatures exchanged by facsimile.
(d) Headings. The headings in this Agreement are solely for
convenience of reference and are not to be given any effect in the construction
or interpretation of this Agreement.
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(e) Severability. If any provision of this Agreement or the
application of such provision is invalid, illegal or unenforceable in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision of this Agreement or invalidate such provision in any other
jurisdiction, provided the intent of the Parties under the Agreement is not
undermined. The Parties will, to the extent lawful and practicable, use their
best reasonable efforts to enter into arrangements to reinstate the intended
benefits of any provision held invalid, illegal or unenforceable.
(f) Assignment. Neither Party may assign this Agreement or any right
or obligation hereunder without the prior written consent of the other Party,
which consent shall not be unreasonably withheld. Such consent may be
conditioned on the assigning party agreeing to remain responsible for
performance of any or all of its obligations hereunder. Notwithstanding the
foregoing, either Party may, without further permission, delegate its
performance obligations or assign its interests under this Agreement to its
Affiliates or any party seeking to acquire or merge with the delegating or
assigning Party, and Nextel Partners may assign its rights to receive payments,
provided that the delegating or assigning Party shall remain responsible for
performance of its obligations hereunder. As used in this Agreement, an
"Affiliate" of a Party means any entity that owns a controlling interest in the
Party, or any entity in which the Party owns a controlling interest.
(g) Successor and Assigns. This Agreement shall be binding on the
Parties and their respective successors and assigns by way of merger or
otherwise.
(h) Interpretation. To the extent there are any inconsistencies
between this Agreement and the Orders or any future orders or rulings in the 800
MHz Rebanding Proceeding, this Agreement shall control the rights and
obligations as between the Parties and, within the bounds of applicable law, the
Parties will take all reasonable action to ensure that the rights and
responsibilities of the Parties as set forth in this Agreement are preserved and
enforced.
(i) Limitations on Liability. In no event shall either Party be
liable, whether in contract, breach of warranty, in tort, under any other theory
of law or on any other basis, for any indirect, special, incidental or
consequential damages sustained by the other Party, however caused, including,
but not limited to, churn, loss of customers, loss of profits or revenue, loss
of data, or work interruption, but instead shall be limited to actual damages
incurred; provided, however, that this limitation shall not apply to (i)
indemnification obligations relating to or resulting from third party claims
against either Party that may be indemnified under the provisions of Paragraph
4(c) above; (ii) losses arising out of either Party's intentionally wrongful or
grossly negligent misconduct or intentional and wrongful repudiation of this
Agreement; or (v) breaches of confidentiality or non-use of information
requirements.
(j) Representations and Warranties. Each Party represents and warrants
to the other that this Agreement has been duly authorized and approved by all
required actions of the Party.
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(k) Non-Waiver. The failure of either Party in any one or more
instances to insist upon performance of any of the terms and conditions of this
Agreement, or to exercise any right or privilege contained in this Agreement or
the waiver of any breach of the terms or conditions of this Agreement shall not
be construed as thereafter waiving any such terms, conditions, rights or
privileges, and the same shall continue and remain in force and effect as if no
waiver had occurred.
(l) Survival. Either Party's indemnification and confidentiality
obligations and representations and warranties under this Agreement, which by
their nature and language would continue beyond the termination, expiration or
cancellation of this Agreement, shall survive said termination, expiration or
cancellation of this Agreement.
(m) Drafting. This Agreement shall not be construed either for or
against either Party, but this Agreement shall be interpreted in accordance with
the general tenor of the language.
(n) Consents. Unless a different standard is otherwise expressly
provided in this Agreement, wherever in this Agreement the consent, approval,
agreement, judgment or the determination of a Party is required or permitted,
then such Party must exercise its reasonable good faith business judgment in
granting or withholding such consent, approval or agreement, or in making such
judgment or determination, giving due regard to the intended economic benefits
each Party is to receive under this Agreement. Without limiting the foregoing,
no Party shall unreasonably withhold, condition or delay any consent, approval,
agreement, judgment or determination of such Party that is required under this
Agreement and requested by the other Party. No Party shall be deemed to have
given any consent, approval or agreement required under this Agreement unless
and until such Party gives such consent, approval or agreement in writing.
(o) Governing Law. This Agreement shall be governed by the laws of the
State of Delaware, without giving effect to conflict of laws provisions thereof.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, this COOPERATION AGREEMENT 800 MHz SPECTRUM REBANDING
shall be effective as a binding agreement between the Parties upon being fully
executed by the Parties indicated below and shall remain in effect as provided
herein.
NEXTEL COMMUNICATIONS, INC NEXTEL PARTNERS, INC.
By: /s/ Xxxxxxxxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxx
-------------------------- ----------------------
Name: Xxxxxxxxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxxxx
Title: SVP Title: Vice President and
General Counsel
Date: March 7, 2005
Date: March 7, 2005
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SCHEDULE 1
PRE-REBANDING HOLDINGS
I. The Parties will determine the Pre-Rebanding Holdings for certain urban
areas as follows.
A. The Parties have identified certain core locations, as listed under
the coordinates in Schedule B, which will be used to perform
calculations and certain queries using the Frequency Availability
Program ("FAP") utilized by both parties to determine frequency
availability and the FCC's Universal Licensing System ("ULS"). The
process will be performed in sequence as follows:
(1) FAP is queried to determine the frequencies that are available
to both Nextel and Nextel Partners within fifty-five (55)
miles of the core locations. FAP parameters will be adjusted
to exclude encumbered frequencies, frequencies under licenses
that allow operations on a secondary basis, and frequencies on
which operations is permitted because of border-sharing
agreements. Also, the antenna height will be set at one
hundred (100) feet above mean sea level, the ERP will be set
at ninety (90) Xxxxx, and the antenna pattern will be adjusted
to "Omni" with an antenna azimuth of zero (0) degrees.
Finally, the user function will be configured as Nextel and
Nextel Partners, and short spacing, frequency contour, region
define site, and geographic protection filters will be
activated.
(2) The frequencies subject to Nextel economic area ("EA")
licenses not purchased by Nextel Partners are removed from the
results of the query under (1) above.
(3) ULS is queried for a list of Nextel site licenses, which were
not created through the FCC's "post-notice modification"
process, located within fifty-five (55) miles of the core
locations. The frequencies that appear on the list of licenses
that was the result of the ULS query under this Paragraph are
removed from the list of frequencies that remained after the
calculation under (2) above.
(4) ULS is queried for a list of Nextel Partners licenses, which
were not created through the FCC's "post-notice modification"
process, located within fifty-five (55) miles of the core
locations. A two-step process follows this. First, frequencies
that appear on the list of licenses that was the result of the
ULS query under this Paragraph are compared with the results
of the original FAP query, under (1) above, and the
frequencies that do not appear on the original list are
discarded as encumbered frequencies. The remaining frequencies
are then compared to the list of frequencies created following
the substraction
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discussed under (3) above, and those frequencies that appear
on that list are discarded as duplicative. Of those
frequencies remaining after the last step, the frequencies on
licenses with sites located outside of Nextel Partners
territories, as designated by the Operating Agreements, are
deemed Nextel Partners frequencies inside of Nextel Partners
territories and are added to the list created after Paragraph
(3) above; and those remaining frequencies that are licensed
at sites located inside of Nextel Partners territories will
undergo further evaluation by the Parties (including a
historical investigation to determine how both Parties
acquired licenses for the same frequencies) to determine
whether they should be attributed to Nextel or Nextel
Partners, and if attributed to Nextel Partners will also be
added to the list of frequencies created in Paragraph (3)
above.
(5) For purposes of this Agreement, the Pre-Rebanding Holdings are
the frequencies identified on the list created after the
subtractions under Paragraph (3) above and those frequencies
added in Paragraph (4) above, all within Nextel Partners
territories as designated by the Operating Agreements.
II. The Parties will determine the Pre-Rebanding Holdings for all areas not
encompassed in Part I above ("Rural Areas") as follows.
A. The Parties will apply the process established in sub-part A(1)
above to core locations in the Rural Area. The core location in any
EA in the Rural Areas will be the geographic center of the EA,
unless the geographic center is located outside of the county
cluster for that EA, in which case the Parties will cooperate to
determine the appropriate core location.
III. The process outlined in this Schedule 1 will be repeated in any area where
Nextel Partners acquires additional frequencies before rebanding commences in
that area. Except for any adjustments to account for the acquisition in
question, the Parties will utilize data that preceded the date of the start of
rebanding for the area to determine the revised Pre-Rebanding Holdings.
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SCHEDULE B
CORE LOCATIONS REFERENCED IN PART I OF SCHEDULE A
CITY LATITUDE LONGITUDE RCAMSL (FEET) POWER
------------------- --------- ---------- ------------- -----
Abilene, TX N322655.0 W0994358.0 1903 90
Xxxxxx, XX X000000.0 W0840921.0 394 90
Xxxxxx, XX X000000.0 W0734524.0 310 90
Xxxxxxxxxx, XX X000000.0 W0922642.0 000 00
Xxxxxxx, XX X000000.0 W0782342.0 1400 90
Amarillo, TX N351319.0 W1014951.0 3831 90
Xxxxxxxx, XX X000000.0 W0882328.0 953 90
Xxxxxxx, XX X000000.0 W0815752.0 320 90
Beaumont, TX N300509.0 W0940606.0 220 90
Biloxi, MI N302345.0 W0885307.0 210 90
Binghamton, NY N420555.0 W0755506.0 1100 90
Xxxxxxxxxxx, XX X000000.0 W0885937.0 994 90
Xxxxx, XX X000000.0 W1161209.0 2916 90
Brownsville, TX N255405.0 W0972950.0 000 00
Xxxxx, XX X000000.0 W0962211.0 553 90
Buffalo, NY N425311.0 W0785243.0 795 90
Xxxxxxxxxx, XX X000000.0 W0731245.0 412 00
Xxxxx Xxxxxx, XX X000000.0 W0913838.0 980 90
Champaign, IL N400659.0 W0881436.0 940 90
Charleston, WV N382054.0 W0813754.0 776 90
Xxxxxxxxxxxxxxx, XX X000000.0 W0782837.0 600 90
Columbus, GA N322739.0 W0845916.0 422 00
Xxxxxx Xxxxxxx, XX X000000.0 W0972346.0 211 90
Cumberland, MD N393910.0 W0784546.0 899 90
Danville, VA N363509.0 W0792343.0 659 90
Davenport, IA N413125.0 W0903439.0 790 90
Decatur, IL N395025.0 W0885717.0 858 00
Xxx Xxxxxx, XX X000000.0 W0933632.0 1014 90
Dothan, AL N311323.0 W0852326.0 531 90
Dubuque, IA N423002.0 W0903952.0 808 90
Duluth, MN N464700.0 W0920623.0 912 00
Xxx Xxxxxx, XX X000000.0 W0912954.0 1012 90
Xxxxxx, XX X000000.0 W0764829.0 1100 90
Xxxx, XX X000000.0 W0800507.0 835 90
Evansville, IN N375829.0 W0873321.0 560 90
Fargo, ND N465230.0 W0964748.0 1088 90
Xxxxxxxxxxxx, XX X000000.0 W0940926.0 1589 00
Xxxx Xxxxx, XX X000000.0 W0942354.0 680 90
14
Schedule B
Ctd. (p2)
CITY LATITUDE LONGITUDE RCAMSL (FEET) POWER
----------------- --------- ---------- ------------ -----
Fort Xxxxxx Beach, N302420.0 W0863708.0 200 00
Xxxxx Xxxxx, XX X000000.0 W0733840.0 500 00
Xxxxx Xxxxx, XX X000000.0 W0970242.0 1015 00
Xxxxx Xxx, XX X000000.0 W0880048.0 788 90
Xxxxxxxx, XX X000000.0 W1575129.0 200 90
Huntington, WV N382454.0 W0822724.0 716 00
Xxxx Xxxx, XX X000000.0 W0913148.0 905 90
Jackson, MS N321755.0 W0901105.0 471 90
Xxxxxxxxx, XX X000000.0 W0791408.0 0000 00
Xxxxxxx Xxxx, XX N361848.0 W0822113.0 1880 90
Xxxxxxxxx, XX X000000.0 W0785520.0 1416 90
Xxxxxxx, XX X000000.0 W0974339.0 0000 00
Xx Xxxxxx, XX N434805.0 W0911422.0 825 90
Xxxxxxxxx, XX X000000.0 W0920111.0 220 00
Xxxx Xxxxxxx, XX X000000.0 W0931302.0 200 90
Lancaster, PA N400216.0 W0761821.0 518 90
Laredo, TX N273022.0 W0993026.0 000 00
Xxxxxxxxx, XX N380257.0 W0843001.0 1159 90
Xxxxxxx, XX X000000.0 W0964000.0 1440 00
Xxxxxx Xxxx, XX X000000.0 W0921722.0 483 90
Longview, TX N323002.0 W0944425.0 000 00
Xxxxxxxxxx, XX N381515.0 W0854534.0 000 00
Xxxxxxx, XX N333440.0 W1015117.0 3380 90
Xxxxxxxxx, XX X000000.0 W0790833.0 787 90
Xxxxx, XX X000000.0 W0833757.0 556 00
XxXxxxx, XX X000000.0 W0981347.0 300 90
Xxxxxxx, XX X000000.0 W1020439.0 2975 90
Mobile, AL N304139.0 W0880235.0 200 90
Xxxxxx, XX X000000.0 W0920709.0 260 90
Montgomery, AL N322200.0 W0861800.0 000 00
Xxxxxxx Xxxxx, XX N430500.0 W0790415.0 000 00
Xxxxxx, XX X000000.0 W1022202.0 3100 90
Xxxxx, XX X000000.0 W0955615.0 1258 90
Xxxxxxxxx, XX X000000.0 W0870648.0 000 00
Xxxxxx Xxxx, XX X000000.0 W0853937.0 201 90
Xxxxxxxxxxx, XX X000000.0 W0813330.0 800 90
Xxxxxxxxxx, XX X000000.0 W0883322.0 200 90
Pensacola, FL N302516.0 W0871301.0 231 90
15
Schedule B
Ctd. (p3)
CITY LATITUDE LONGITUDE RCAMSL (FEET) POWER
----------------- --------- ---------- ------------- -----
Xxxxxx, XX X000000.0 W0893520.0 698 00
Xxxx Xxxxx, XX X000000.0 W0920011.0 399 90
Roanoke, VA N371615.0 W0795630.0 1200 90
Xxxxxxxxx, XX X000000.0 W0922811.0 1209 90
Rochester, NY N430917.0 W0773657.0 709 00
Xxx Xxxxxx, XX X000000.0 W1002612.0 2013 90
Xxxxxxxx, XX X000000.0 W0753946.0 936 90
Sheboygan, WI N434503.0 W0874252.0 787 90
Shreveport, LA N323130.0 W0934500.0 340 00
Xxxxx Xxxx, XX X000000.0 W0962400.0 1400 00
Xxxxx Xxxxx, XX X000000.0 W0964400.0 1660 90
Xxxxxxxxxxx, XX X000000.0 W0893837.0 796 00
Xxxxx Xxxxxxx, XX X000000.0 W0775137.0 1338 90
Xxxxxxxx, XX X000000.0 W0760852.0 621 90
Xxxxxxxxxxx, XX X000000.0 W0841651.0 331 90
Terre Haute, IN N392800.0 W0872450.0 000 00
Xxxxxxxxx, XX X000000.0 W0940215.0 530 90
Tyler, TX N322104.0 W0951803.0 722 90
Utica, NY N430603.0 W0751359.0 671 90
Victoria, TX N284818.0 W0970012.0 000 00
Xxxx, XX X000000.0 W0970847.0 699 90
Waterloo, IA N422934.0 W0922034.0 1038 90
Xxxxxx, XX X000000.0 W0893748.0 1377 90
Williamsport, PA N411428.0 W0770005.0 774 90
Xxxxxxxxxx, XX X000000.0 W0765305.0 536 90
