ROAMING AGREEMENT
BY AND BETWEEN
NEXTEL WIP CORP.
AND
NEXTEL PARTNERS OPERATING CORP.
Dated as of January 29, 1999
TABLE OF CONTENTS
Page
RECITALS......................................................................1
ARTICLE 1. DEFINITIONS.......................................................1
ARTICLE 2. PROVISION OF ROAMING SERVICES.....................................6
2.1 Required Services...........................................6
2.2 Optional Services...........................................6
2.3 Extent of Obligations.......................................8
2.4 Additional Roaming Contracts ...............................8
ARTICLE 3. VERIFICATION AND FRAUD PROTECTION.................................9
3.1 HLRs; Subscriber Status Verification........................9
3.2 Fraud Control...............................................9
3.3 Indemnification for Fraudulent Charges.....................10
3.4 NPA/NXX and IMSI Blocks....................................11
ARTICLE 4. BILLING, COLLECTIONS, AND PAYMENT................................11
4.1 Billing....................................................11
4.2 Additional Roaming Rates...................................12
4.3 Billing of Cross Region Calls .............................13
4.4 Billing Statements.........................................14
ARTICLE 5. CLEARINGHOUSE AND SETTLEMENT.....................................14
5.1 Clearinghouse Provider Designation.........................14
5.2 Settlement Provider Designation............................14
5.3 Clearinghouse and Settlement Data..........................14
5.4 Settlement and Clearinghouse Systems; Costs................14
ARTICLE 6. EXCLUSIVITY .....................................................15
6.1 Exclusivity................................................15
ARTICLE 7. BREACH...........................................................15
7.1 Breach; Dispute Resolution.................................15
ARTICLE 8. TERM AND TERMINATION.............................................15
8.1 Term.......................................................15
8.2 Termination................................................15
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ARTICLE 9. MISCELLANEOUS...................................................16
9.1 Excusable Delay/Time Extension.............................16
9.2 Amendments.................................................16
9.3 Entire Agreement...........................................16
9.4 Notices....................................................16
9.5 Counterparts...............................................16
9.6 Waiver.....................................................17
9.7 Third Parties..............................................17
9.8 Severability...............................................17
9.9 Choice of Law..............................................17
9.10 Construction...............................................17
9.11 Agreement..................................................17
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ROAMING AGREEMENT
This ROAMING AGREEMENT (this "Agreement"), dated as of January 29,
1999, is by and between NEXTEL WIP CORP., a Delaware corporation ("NWIP") and
NEXTEL PARTNERS OPERATING CORP., a Delaware corporation (the "Company"). Defined
terms are used herein as set forth in Article 1.
RECITALS:
A. Nextel, through its Subsidiaries, operates an iDEN-based wireless
communications system through which it provides wireless communications services
in various markets throughout the United States. To enhance its ability to
provide its customers with greater geographic coverage that is consistent with
its existing service, operations, and objectives, Nextel, through NWIP, is
entering into a contractual joint venture with NPI and its wholly owned
Subsidiaries, including the Company.
B. The agreement of the parties with respect to the formation and
operation of the contractual joint venture is set forth in the JV Agreement and
various Collateral Agreements. This Agreement is a Collateral Agreement.
C. NWIP and the Company desire to establish and implement an
arrangement that will allow Subscribers and Designated Users of the NDS to use
certain iDEN-based wireless communications services provided by the Company
Operating Group when roaming in the Company Territory and Subscribers and
Designated Users of the Company Operating Group to use certain iDEN-based
wireless communications services provided by the NDS when roaming in the NDS
Territory.
In consideration of the mutual promises and covenants contained herein,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, NWIP and the Company hereby agree as follows:
AGREEMENT:
1. DEFINITIONS
1.1 "Applicable Percentage" means (a) with respect to payments made by
the Company, 80% and (b) with respect to payments made by NWIP, (i) 95% in 1999,
(ii) 90% in 2000, (iii) 85% in 2001, and (iv) 80% in 2002 and thereafter; in
each case as adjusted pursuant to Section 4.1(c) and as limited in accordance
with Section 4.1(d).
1.2 "Authorized Roamer" means a Roamer who (i) is a Subscriber or a
Designated User of any of the NDS or any member of the Company Operating Group,
(ii) has sought Roaming Services from a Remote Service Provider, and (iii)
through the RV process
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conducted by the Remote Service Provider has been confirmed by an HLR designated
by such Roamer's Home Service Provider to (x) have an account in good standing
with its Home Service Provider and (y) be eligible to receive Roaming Services
hereunder from the Remote Service Provider.
1.3 "Billable Minute" means each minute of interconnect or Direct
Connect service time that is captured by (x) the billing system of the NDS, as
such billing system may be in effect from time to time or (y) when instituted,
if ever, the billing system of the Company Operating Group, as such billing
system may be in effect from time to time, provided, that the Company will
ensure that the billing system of the Company Operating Group at all times
measures minutes of interconnect and Direct Connect service using the same
methodologies or formulas then employed by the billing system of the NDS and
that NWIP will provide notice to the Company of any changes to such
methodologies or formulas.
1.4 "Clearinghouse Provider" means any entity or entities designated by
NWIP, in NWIP's sole discretion, from time to time and at any time during the
term of this Agreement, including any renewal term(s), to provide Clearinghouse
Services, which entity or entities may, but are not required to be, the
Settlement Provider.
1.5 "Clearinghouse Services" means those services to be performed by
the Clearinghouse Provider pursuant to Article 4 and Article 5 hereof.
1.6 "Company" has the meaning set forth in the preamble to this
Agreement.
1.7 "Company Affiliates" means NPI and any and all other entities whose
equity or corresponding unit of ownership interest is fifty percent or more
beneficially owned (within the meaning of Section 16 of the Securities Exchange
Act of 1934, as amended, and the rules and regulations promulgated thereunder)
by NPI, directly or indirectly.
1.8 "Company Operating Group" means the Company and, from time to time
and at any time during the term of this Agreement, including renewal term(s),
any and all entities constituting Company Affiliates who operate or are involved
in the operation of an ESMR Network in any portion of the Company Territory.
1.9 "Company Optional Services" means any wireless communications
services (i) that do not constitute Required Services; (ii) that are implemented
by the Company Operating Group anywhere in the Company Territory after the date
of this Agreement and that will be available to certain Subscribers of the
Company Operating Group, Designated Users and Authorized Roamers roaming in the
Company Territory; and (iii) that if implemented by the NDS, also will be
available to certain Subscribers of the NDS, Designated Users and Authorized
Roamers roaming in the NDS Territory; in any such case, subject to such persons
having the proper Subscriber equipment to utilize such services.
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1.10 "Company Territory" means the "Territory" (as such term is defined
in the JV Agreement), as such "Territory" may exist from time to time and at any
time under the JV Agreement during the term thereof, including any renewal
term(s).
1.11 "Cross Network Calls" has the meaning set forth in Section 4.5.
1.12 "Customer Satisfaction Level" means: (a) with respect to the
Company: the level of customer satisfaction, determined on the basis of the
annual SCI score of the Company Operating Group, expressed as a percentage, and
(b) with respect to NWIP: the level of customer satisfaction, determined on the
basis of the annual SCI score of the NDS, expressed as a percentage; in each
case, as measured by the appropriate Marketing Services Vendor pursuant to
Article 7.3 of the JV Agreement.
1.13 "Designated User" means a person, who is a customer or a
Subscriber of a Third-Party Carrier with whom the NDS or, subject to Section
2.4(b), the Company Operating Group, has entered into a roaming agreement and
who, (a) if identified as such by any of the NDS, is entitled to be provided
wireless services as an Authorized Roamer on the ESMR Network or any portion
thereof operated by the NDS and, (b) if identified as such by any member of the
Company Operating Group, is entitled to be provided wireless services as an
Authorized Roamer on the ESMR Network or any portion thereof operated by the
Company Operating Group, provided, that a person shall be identified as a
"Designated User" only by having the sponsoring wireless services provider
(i.e., any of the NDS or any member of the Company Operating Group, as the case
may be), as a Home Service Provider, entering such person's relevant identifying
information (including, without limitation, such person's subscriber unit
identifier, designation of eligibility for one or more Roaming Services and
current account status) in the HLR maintained by or for such Home Service
Provider or Third-Party Carrier.
1.14 "Direct Connect" means a two-way dispatch radio service provided
by the NDS and the Company Operating Group through their respective ESMR
Networks.
1.15 "Direct Connect Service Revenue" means that portion of Service
Revenue generated on a per minute basis by Direct Connect usage, plus the
appropriate amount of Service Revenue not derived on a per-minute basis and
allocable to Direct Connect usage, as calculated pursuant to Section 4.1(b).
1.16 "ESMR Network" has the meaning set forth in the JV Agreement.
1.17 "HLR" means the "home location register," that is, the databases
of Subscriber information (and comparable information concerning relevant
Designated Users) maintained by or for each Home Service Provider for the
purpose of performing RV and processing Inquiries by Remote Service Providers
regarding the identity, eligibility and status of potential Roamers.
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1.18 "Home Region" means the territory in the United States in which
any Home Service Provider provides wireless communications services to its
Subscribers, Authorized Roamers and others.
1.19 "Home Service Provider" means the person with whom a Subscriber
subscribes for wireless communications services, provided, that the Home Service
Provider of any Designated User shall be deemed to be (i) the NDS, if any member
of the NDS has identified the Designated User as such, or (ii) the Company
Operating Group, if any member of the Company Operating Group has identified the
Designated User as such.
1.20 "iDEN" has the meaning set forth in the JV Agreement.
1.21 "Inquiry" means any RV and related inquiry performed by the
relevant Remote Service Provider of an HLR maintained by or for the relevant
Home Service Provider, concerning a potential Roamer seeking to use Roaming
Services as an Authorized Roamer on such Remote Service Provider's ESMR Network;
provided, that each such Inquiry occurs immediately prior to the time that any
potential Roamer who is the subject of such Inquiry first uses Roaming Services
as an Authorized Roamer on such Remote Service Provider's ESMR Network and,
thereafter, a new Inquiry is conducted with respect to such Roamer on each
subsequent registration by such Roamer's Subscriber unit, with the Remote
Service Provider's ESMR Network, following any deregistration event (whether due
to a power-down of such unit, a departure from the service area or other cause).
1.22 "Interconnect Service Revenue" means that portion of Service
Revenue generated on a per minute basis by interconnect usage, plus the
appropriate amount of Service Revenue not derived on a per minute basis and
allocable to interconnect usage, as calculated pursuant to Section 4.1(b).
1.23 "JV Agreement" means the Joint Venture Agreement, of even date
herewith, by and among NWIP, NPI and the Company.
1.24 "Marketing Services Vendor" has the meaning set forth in the JV
Agreement.
1.25 "Motorola" has the meaning set forth in the JV Agreement.
1.26 "NDS" has the meaning set forth in the JV Agreement.
1.27 "NDS Optional Services" means any wireless communications services
(i) that do not constitute Required Services; (ii) that are implemented by the
NDS anywhere in the NDS Territory after the date of this Agreement and that will
be available to certain Subscribers of the NDS, Designated Users and Authorized
Roamers roaming in the NDS Territory; and (iii) that if implemented by the
Company Operating Group, also will be available to certain Subscribers of the
Company Operating Group, Designated Users and
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Authorized Roamers roaming in the Company Territory; in any such case, subject
to such persons having the proper Subscriber equipment to utilize such services.
1.28 "NDS Territory" means all areas within the United States that are
outside of the Company Territory.
1.29 "Nextel" means Nextel Communications, Inc., a Delaware
corporation.
1.30 "Non-U.S. Third-Party Carrier" has the meaning set forth in
Section 2.4(c).
1.31 "NPI" means Nextel Partners, Inc., a Delaware corporation, and the
sole stockholder of the Company.
1.32 "NWIP" has the meaning set forth in the preamble to this
Agreement.
1.33 "Optional Services" means either or both the NDS Optional Services
or the Company Optional Services, as the context requires.
1.34 "Pricing Structure" means the pricing structure set forth on
Exhibit 9.1 to the JV Agreement, as Exhibit 9.1 may be amended from time to
time.
1.35 "Remote Service Provider" means any person providing Roaming
Services in such person's Home Region.
1.36 "Required Services" means those wireless communications services
set forth on Exhibit 6.1 to the JV Agreement, as such Exhibit 6.1 may be amended
from time to time.
1.37 "Roamer" means a Subscriber or Designated User seeking Roaming
Services from a Remote Service Provider.
1.38 "Roamer Verification" or "RV" means the system and process used by
the NDS and to be used by or performed for the Company Operating Group when any
of them are acting as Remote Service Providers, to determine, among other
things, if Roamers seeking Roaming Services from them are in good standing with
their Home Service Providers and are otherwise entitled to receive Roaming
Services as Authorized Roamers, and, if so, those Roaming Services such
Authorized Roamers are entitled to receive (if such services are supported by
the applicable Remote Service Provider).
1.39 "Roaming Contacts" means those persons appointed by NWIP and the
Company under Section 10.1.
1.40 "Roaming Services" means such combination of Required Services and
Optional Services as any Authorized Roamer may from time to time be entitled to
receive from a Remote Service Provider hereunder, which combination of Required
Services and
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Optional Services may vary as a result of, without limitation, the market in
which an Authorized Roamer is located or the Subscriber equipment being used by
such Authorized Roamer.
1.41 "Service Revenue" means all revenue derived from activation,
access, usage, features and toll charges (including long distance toll charges)
and from credits, adjustments, promotions, and subsidies. "Service Revenue" does
not include revenue derived from equipment or product sales and shall not be
adjusted for equipment or product (as opposed to service) credits, adjustments,
promotions or subsidies. By mutual, written agreement, NWIP and the Company may,
from time to time and at any time during the term hereof, including any renewal
terms, revise the components and definition of Service Revenue.
1.42 "Settlement Provider" means any entity or entities designated by
NWIP, in NWIP's sole discretion, from time to time and at any time during the
term of this Agreement, including any renewal term(s), to provide Settlement
Services, which entity or entities may be, but are not required to be, the
Clearinghouse Provider.
1.43 "Settlement Services" means those services to be provided as part
of or in conjunction with the Clearinghouse Services, including, but not limited
to, settlement of accounts between the parties on a monthly basis, netting of
obligations between the parties and transferring of funds for the payment of
roaming revenues from one party to the other.
1.44 "Subscriber" means a revenue generating or non-revenue generating
customer of digital wireless communications services.
1.45 "Third-Party Carrier" has the meaning set forth in Section 2.4(a).
1.46 "VPN" means a virtual private network solution, which provides
certain corporate customers of the NDS and the Company Operating Group, whose
virtual private networks may be located in either the NDS Territory or the
Company Territory, both private system control and access to the respective ESMR
Networks of the NDS and the Company Operating Group.
2. PROVISION OF ROAMING SERVICES
2.1 Required Services. (a) The Company, through the Company Operating
Group, will make available to any Authorized Roamer who requests Roaming
Services in the Company Territory, each and every Required Service, in each case
at service and access levels in accordance with the terms and conditions of this
Agreement and the JV Agreement and any laws, regulations and court orders that
may be applicable to the provision thereof.
(b) NWIP, through the NDS, will make available to any Authorized Roamer
who requests Roaming Services in the NDS Territory, each and every Required
7
Service, in each case at service and access levels in accordance with the terms
and conditions of this Agreement and the JV Agreement and any laws, regulations
and court orders that may be applicable to the provision thereof.
2.2 Optional Services. (a) The parties contemplate that, from time to
time and at any time during the term of this Agreement, including any renewal
terms, and in the sole discretion of NWIP, the NDS may choose to implement
certain NDS Optional Services in all or a portion of the NDS Territory and make
such NDS Optional Services available to certain Subscribers of the NDS, certain
Designated Users and certain Authorized Roamers roaming in the NDS Territory,
which group of Authorized Roamers may include certain Authorized Roamers who may
be Subscribers or Designated Users of the Company Operating Group. The Company
will have no obligation to (or to cause any members of the Company Operating
Group to) implement any NDS Optional Services in the Company Territory that are
implemented by the NDS, but may elect to do so on written notice to NWIP. Upon
receipt of any notice from the Company that the Company, through the Company
Operating Group, desires to implement any NDS Optional Service in all or a
portion of the Company Territory, NWIP will use its commercially reasonable
efforts in good faith to coordinate with the NDS, the Company and the other
applicable members of the Company Operating Group to exchange information and
data necessary to allow the Company to implement such NDS Optional Service as
soon as reasonably practicable, provided, however, that all costs and expenses
of or relating to the implementation of such NDS Optional Services that are
incurred by the Company Operating Group will be for the exclusive account of and
will be borne solely by the Company.
(b) The parties contemplate that, from time to time and at any time
during the term of this Agreement, including any renewal terms, and in the sole
discretion of the Company, the Company Operating Group may choose to implement
certain Company Optional Services in all or a portion of the Company Territory
and make such Company Optional Services available to certain Subscribers of the
Company Operating Group, certain Designated Users and certain Authorized Roamers
roaming in the Company Territory, which group of Authorized Roamers may include
certain Authorized Roamers who may be Subscribers or Designated Users of the
NDS. NWIP will have no obligation to (or to cause any of the NDS to) implement
any Company Optional Services in the NDS Territory that are implemented by the
Company Operating Group, but may elect to do so on written notice to the
Company. Upon receipt of any notice from NWIP that NWIP, through the NDS,
desires to implement any Company Optional Service in all or a portion of the NDS
Territory, the Company will use its commercially reasonable efforts in good
faith to coordinate with the Company Operating Group, NWIP and the applicable
members of the NDS to exchange information and data necessary to allow the NDS
to implement such Company Optional Service as soon as reasonably practicable,
provided, however, that all costs and expenses of or relating to the
implementation of such Company Optional Services that are incurred by NWIP or
the NDS will be for the exclusive account of and will be borne solely by NWIP.
8
(c) Upon the mutual implementation of any Optional Services by both
NWIP, through the NDS, and the Company, through the Company Operating Group,
NWIP and Company, through the NDS and the Company Operating Group, respectively,
will make available to certain Authorized Roamers who request Roaming Services
in those areas of their respective Home Regions where such Optional Services
have been implemented, such Optional Services as either the Company or NWIP, in
the sole discretion of each, elects to make available. Where the Company or NWIP
elects to provide any Optional Services, each such Optional Service will be
provided at service and access levels in accordance with the terms and
conditions of this Agreement and the JV Agreement and any laws, regulations and
court orders that may be applicable to the provision thereof.
2.3 Extent of Obligations. Notwithstanding anything herein to the
contrary, neither the Company nor NWIP will be obligated to provide Roaming
Services in any portion of, in the Company's case, the Company Territory, or, in
NWIP's case, the NDS Territory, where build-out sufficient to support the
operation of the ESMR Networks being constructed by the Company Operating Group
and the NDS, respectively, has not been completed. Nothing in this Section 2.3
shall be interpreted or operate to affect any of the Company's or NPI's
obligations regarding the build-out of the Company Territory as set forth in the
JV Agreement.
2.4 Additional Roaming Contracts. (a) The parties contemplate that
Nextel or certain of the NDS will from time to time enter into roaming
arrangements with third-party wireless communications service providers (the
"Third-Party Carriers") that will permit certain Subscribers of the NDS to roam
in the markets served by the Third-Party Carriers. The parties further
contemplate that the Company or certain members of the Company Operating Group
will enter into similar roaming arrangements, for the benefit of the Subscribers
of the Company Operating Group, with such Third-Party Carriers.
(b) Any proposed agreement between any Third-Party Carrier and the
Company or any member of the Company Operating Group will require NWIP's prior
approval, which approval will not be unreasonably withheld.
(c) If the Company cannot obtain a roaming arrangement with any Third-
Party Carrier whose principal operations are located outside of the U.S. (each,
a "Non-U.S. Third-Party Carrier") with whom Nextel or the NDS have entered into
a roaming agreement because, as a result of the technology then used by the
Company and the NDS, such Non-U.S. Third-Party Carrier is unable to
differentiate between Subscribers of the NDS and Subscribers of the Company
Operating Group, then NWIP will cooperate with the Non-U.S. Third-Party Carrier,
the Company and Nextel or the appropriate NDS to implement procedures that will
permit certain Subscribers of the Company Operating Group to roam in the markets
served by such Non-U.S. Third-Party Carrier under the relevant agreement between
Nextel or the appropriate NDS; provided, that the implementation of such
procedures may be conditioned upon such Non-U.S. Third-Party Carrier's agreement
to assert claims against, and seek
9
recourse from, only the Company and/or members of the Company Operating Group
arising out of any roaming activities or services provided by such Non-U.S.
Third-Party Carrier to Subscribers of the Company Operating Group, and upon the
Company's agreement that it and each member of the Company Operating Group will
assert claims against, and seek recourse from, only the relevant Non-U.S.
Third-Party Carrier arising out of any failure to provide roaming services or
any related defects or difficulties arising out of any Subscribers of the
Company Operating Group accessing or attempting to access wireless and/or other
telecommunications services offered or provided by such Non-U.S. Third-Party
Carrier. Neither NWIP nor Nextel or any of the NDS will have any liability
whatsoever to the Company or any member of the Company Operating Group in the
event that NWIP and Nextel or the appropriate NDS are unable to make suitable
arrangements to allow Subscribers of the Company Operating Group to roam in the
markets served by any Non-U.S. Carrier under this Section 2.4(c). The Company
accepts and acknowledges that the roaming service and other charges associated
with any such roaming arrangements with Non-U.S. Third-Party Carriers may be
substantially higher than those otherwise set forth herein and that the Company
will be solely responsible for all such charges, regardless of whether the
Company or the Company Operating Group actually collect any amounts due with
respect to roaming by the Subscribers of the Company Operating Group through any
arrangements provided for under this Section 2.4(c).
3. VERIFICATION AND FRAUD PROTECTION
3.1 HLRs; Subscriber Status Verification. (a) NWIP, through the NDS,
will maintain HLR capacity sufficient to service each market within the NDS
Territory and its HLRs will provide appropriate data regarding (i) Subscribers
and Designated Users of the NDS, and (ii) until such time, if ever, as the
Company Operating Group obtains sufficient HLR capacity, Subscribers and
Designated Users of the Company Operating Group, in each case, for use in
performing RV and related functions. The parties acknowledge that neither NWIP
nor the NDS are or will be responsible for supplying, obtaining, verifying or
otherwise collecting any data regarding the Subscribers and Designated Users of
the Company Operating Group necessary to populate their HLRs. The Company will
be solely responsible for doing so and for timely transmitting such data in
writing (or in appropriate form, such as confirmed electronic data transmission,
computer diskette or machine-readable tape, in any such case, in form accessible
to the NDS) to NWIP pursuant to the procedures generally applicable to and used
by the NDS in performing HLR updates and management, as such procedures may from
time to time be in effect. NWIP and the NDS will not be liable to any member of
the Company Operating Group, Subscribers or Designated Users of the Company
Operating Group, or any third party for inaccuracies reflected in the
information regarding Subscribers or Designated Users of the Company Operating
Group contained in or omitted from the HLRs maintained by the NDS to the extent
that such inaccuracies (x) are caused by incorrect data transmitted by the
Company or any other member of the Company Operating Group, (y) are the result
of any system error (as opposed to human error caused by NWIP), or (z) result
from any act or omission attributable to any member of the Company Operating
Group or to any third party.
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(b) NWIP will provide notice to the Company of any changes subsequent
to the date of this Agreement to those procedures generally applicable to and
used by the NDS in performing HLR updates and management, at substantially the
same time and in substantially the same manner as notice of such changes is
provided to the NDS.
3.2 Fraud Control. (a) NWIP will cause the NDS to, and when they
develop, maintain or otherwise acquire HLRs, the Company will cause the Company
Operating Group to, configure their respective HLRs to have the capacity to
perform Inquiries of all of their respective Subscribers and Designated Users.
NWIP and the Company will cooperate in good faith to control fraudulent Roamer
usage and to attempt to solve any fraud problems that might arise during the
term, including any renewal term(s), of this Agreement. The parties promptly
will notify each other should fraudulent Roamer usage become apparent on the
respective ESMR Networks of the Company Operating Group and/or the NDS.
(b) The parties will bear the cost of fraudulent calls or calls made by
Roamers who are not Authorized Roamers in each other's territory as follows:
(i) The appropriate Home Service Provider will pay all transfer
charges as calculated in accordance with Section 4.1 for calls
completed by a Remote Service Provider after the Remote Service
Provider has made timely Inquiries of the HLR(s) maintained by
or for the Home Service Provider and such HLR(s) has indicated
that the Roamer should be treated as an Authorized Roamer, even
if it is subsequently determined that the Roamer was not in good
standing with its Home Service Provider, had sought Roaming
Services fraudulently, or otherwise was not entitled to use
Roaming Services. All calls covered by this Section 3.2(b)(i)
will be deemed for settlement purposes to have been made by
Authorized Roamers.
(ii) A Home Service Provider will have no obligation to make any
transfer payments for any calls completed by a Remote Service
Provider where the Remote Service Provider failed to make timely
Inquires of the HLR(s) maintained by or for the Home Service
Provider or performed the Inquiries improperly and it was
subsequently determined that any Roamers making such calls were
not in good standing with their respective Home Service
Providers, had sought Roaming Services fraudulently, or
otherwise were not entitled to use Roaming Services. Similarly,
a Home Service Provider will have no obligation to make any
transfer payments for any calls completed by a Remote Service
Provider where the Remote Services Provider ignored the Home
Service Provider's indication that a Roamer was not an
Authorized Roamer. All calls covered by this Section 3.2(b)(ii)
will be treated for settlement purposes not to have been made.
3.3 Indemnification for Fraudulent Charges. (a) NWIP will indemnify the
Company, NPI, the other members of the Company Operating Group and all other
controlled
11
subsidiaries of the Company now or hereafter existing, together with all of
their respective officers, directors, employees, or agents (collectively, the
"Company Indemnified Parties"), against, and hold them harmless from, any and
all third-party claims, suits, demands, losses and expenses, including
attorneys' fees and disbursements, which may result in any way whatsoever from
the denial of Roaming Service by any of the Company Indemnified Parties to any
Subscriber or Designated User of the NDS that has been identified by the
appropriate HLR as not being an Authorized Roamer or in good standing with its
Home Service Provider or otherwise not to be entitled to receive Roaming
Services hereunder.
(b) The Company will indemnify NWIP, the NDS, Nextel and all other
controlled subsidiaries of Nextel now or hereafter existing, together with all
of their respective officers, directors, employees, or agents (collectively, the
"Nextel Indemnified Parties"), against, and hold them harmless from, any and all
third-party claims, suits, demands, losses and expenses, including attorneys'
fees and disbursements, which may result in any way whatsoever from the denial
of Roaming Service by any of the Nextel Indemnified Parties to any Subscriber or
Designated User of the Company or the Company Operating Group that has been
identified by the appropriate HLR as not being an Authorized Roamer or in good
standing with its Home Service Provider or otherwise not to be entitled to
receive Roaming Services hereunder.
3.4 NPA/NXX and IMSI Blocks. NWIP and the Company have exchanged
information identifying the NPA/NXX and IMSI blocks assigned to the NDS and the
Company Operating Group with respect to their ESMR Networks in the NDS Territory
and the Company Territory, respectively, as well as detailing the valid NPA/NXX
and IMSI combinations used by the respective Subscribers and Designated Users of
the NDS and the Company Operating Group as of the date hereof. Additions,
deletions or changes to such NPA/NXX and IMSI combinations will be delivered by
the Company to NWIP's Roaming Contact and to NWIP by the Company's Roaming
Contact promptly and the Company will itself or will cause other members of the
Company Operating Group to, and NWIP will cause the NDS to, update all
appropriate HLRs to reflect any such additions, deletions or changes at least as
promptly as required by the HLR update and management procedures generally
applicable to the NDS, as such procedures may be in effect from time to time and
at any time during the term of this Agreement, including any renewal term(s).
NWIP will provide to the Company notice of any changes to such procedures at
substantially the same time and in substantially the same manner as the NDS are
provided notice of such changes.
4. BILLING, COLLECTIONS, AND PAYMENT
4.1 Billing. The formula for the billing of Required Services provided
pursuant to this Agreement is as follows:
(a) The Company will charge Subscribers of the Company Operating Group
for operating as Roamers in the NDS Territory in accordance with the Pricing
Structure and will charge its Designated Users operating as Roamers in the NDS
Territory in accordance with the relevant terms and conditions of the applicable
agreement in place between any member of the Company Operating Group and such
Designated User and/or the wireless services provider of
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which each such Designated User is a customer in its home market. NWIP will
charge Subscribers of the NDS for operating as Roamers in the Company Territory
in accordance with the Pricing Structure and will charge its Designated Users
operating as Roamers in the Company Territory in accordance with the relevant
terms and conditions of the applicable agreement in place between any NDS and
such Designated User and/or the wireless services provider of which each such
Designated User is a customer in its home market. Aggregate usage by
Subscribers and Designated Users of both the Company Operating Group and of
the NDS in the other's Home Region will be compiled on a monthly basis by the
Clearinghouse Provider. NWIP and the Company will pay each other for Billable
Minutes generated by the respective Subscribers and Designated Users of the
Company Operating Group and the NDS operating as Authorized Roamers based on
the interconnect minutes and Direct Connect minutes used by each Authorized
Roamer during the prior month, multiplied by the per minute transfer rates
determined not more frequently than the closing date of each fiscal quarter of
Nextel, as follows:
(i) For Direct Connect Usage: the Applicable Percentage of (i) total
aggregate Direct Connect Service Revenue of both the Company
Operating Group and the NDS during the preceding 12-month
period; divided by (ii) total aggregate Direct Connect Billable
Minutes of Subscribers and Designated Users of both the Company
Operating Group and the NDS during the preceding 12-month
period.
(ii) For Interconnect Usage: the Applicable Percentage of (i) total
aggregate Interconnect Service Revenue of both the Company
Operating Group and the NDS during the preceding 12-month
period; divided by (ii) total aggregate interconnect Billable
Minutes of Subscribers and Designated Users of both the Company
Operating Group and the NDS during the preceding 12-month
period.
(b) For purposes of determining Direct Connect Service Revenue and
Interconnect Service Revenue for the calculations set forth in Section 4.1(a),
any Service Revenue not derived on a per minute basis will be allocated between
Direct Connect Service Revenue and Interconnect Service Revenue based on the
total aggregate Direct Connect Billable Minutes and interconnect Billable
Minutes of Subscribers and Designated Users of both the Company Operating Group
and the NDS during the preceding 12-month period as a percentage of total
Billable Minutes of Subscribers and Designated Users of both the Company
Operating Group and the NDS during the preceding 12-month period, provided,
however, that for purposes of this calculation long distance toll charges will
be fully allocated to Interconnect Service Revenue.
(c) The respective Applicable Percentages of the Company and the NDS
will be subject to change based on the results of customer satisfaction
interviews of Subscribers of both the NDS and the Company Operating Group.
Adjustments to reflect the results of such customer satisfaction interviewing
will occur annually on a calendar-year basis and will be calculated as follows:
(i) for every five full percentage points by which the Customer Satisfaction
Level of the Company Operating Group exceeds the Customer Satisfaction Level of
the NDS, in each case as determined pursuant to the provisions of Article 7 of
the JV Agreement, one full
13
percentage point will be added to the then current Applicable Percentage of
NWIP, and deducted from the then current Applicable Percentage of the Company;
and (ii) for every five full percentage points by which the Customer
Satisfaction Level of the Company Operating Group falls below the Customer
Satisfaction Level of the NDS, one full percentage point will be deducted from
the then current Applicable Percentage of NWIP and added to the then current
Applicable Percentage of the Company. Both the Company and NWIP will be
responsible for producing the information necessary to make the allocation
provided for in this Section 4.1, based on the relevant Customer Satisfaction
Level measurements compiled as provided in Article 7 of the JV Agreement.
(d) In no event will either the Applicable Percentage of NWIP or the
Applicable Percentage of the Company be greater than 100%, nor will the per
minute transfer rate be less than either the Company Operating Group's or the
NDS's respective costs of providing Roaming Services.
(e) Each of NWIP (through the NDS) and the Company (through the Company
Operating Group) will be responsible for the billing and collection of the
accounts of their Subscribers and Designated Users for the services provided
pursuant to this Agreement. The failure of the NDS or the Company Operating
Group to collect payments due from such Subscribers or Designated Users will in
no way affect the obligations of NWIP and the Company to pay to the other any
amounts due under this Agreement.
4.2 Additional Roaming Rates. (a) For any and all Optional Services
that the NDS and the Company Operating Group mutually agree to provide in the
respective Home Regions of the NDS and the Company Operating Group, and which
(in accordance with Section 2.2(c)) are required to be made available to
Authorized Roamers, the parties will establish appropriate transfer rates to be
used in connection with the settlement of accounts between the Company and NWIP,
provided, however, that each of them shall be entitled to exercise sole
discretion in establishing retail charges for such Optional Services that will
be charged to the Subscribers of the Company Operating Group and the NDS for
usage within their respective Home Regions.
(b) For any and all NDS Optional Services not implemented by the
Company Operating Group (i.e., for which there is no comparable Company Optional
Service), but which the NDS elect to make available for use by certain
Subscribers and Designated Users of the Company roaming in the NDS Territory,
the transfer rates applicable to such NDS Optional Services will be established
by NWIP, in NWIP's sole discretion, from time to time and at any time during the
term of this Agreement, including any renewal term(s), provided, however, that
the Company shall, subject to Article 9 of the JV Agreement, be entitled to
exercise its sole discretion in establishing retail rates to be charged to
Subscribers and Designated Users of the Company Operating Group for the use of
such NDS Optional Services.
(c) With respect to any Company Optional Services not implemented by
the NDS (i.e., for which there is no comparable NDS Optional Service), but which
the Company Operating Group elects to make available for use by certain
Subscribers and Designated Users of
14
the NDS roaming in the Company Territory, the transfer rates applicable to such
Company Optional Services will be established by the Company, in the Company's
sole discretion, from time to time and at any time during the term of this
Agreement, including any renewal term(s), provided, however, that NWIP shall be
entitled to exercise its sole discretion in establishing retail rates to be
charged to Subscribers and Designated Users of the NDS for the use of such
Company Optional Services.
(d) For any and all Required Services implemented after the date of
this Agreement, the parties will establish appropriate transfer rates to be used
in connection with the settlement of accounts between the Company and NWIP,
provided, however, that each of them shall, subject to Article 9 of the JV
Agreement, be entitled to exercise sole discretion in establishing retail
charges for such Required Services that will be charged to the Subscribers of
the Company Operating Group and the NDS for usage within their respective Home
Regions.
4.3 Billing of Cross Region Calls. Calls initiated on one ESMR Network,
but continuing and/or terminating on one or more other ESMR Networks ("Cross
Network Calls") will be handled as follow:
(a) Cross Network Calls originated by a Subscriber or Designated User
on its Home Service Provider's ESMR Network: for billing and settlement
purposes, such calls will not be treated as roaming calls, but will be treated
as if they were completed in full on the originating Home Service Provider's
ESMR Network; and
(b) Cross Network Calls originated by a Subscriber or Designated User
as a Roamer on a Remote Service Provider's ESMR Network: for billing and
settlement purposes, such calls will be treated as if they were completed in
full on the originating Remote Service Provider's ESMR Network.
4.4 Billing Statements. The parties' agreement concerning the
procedures governing billing and payment for the services provided and all other
charges and amounts assessed hereunder is set forth in Section 13.6 of the JV
Agreement.
5. CLEARINGHOUSE AND SETTLEMENT
5.1 Clearinghouse Provider Designation. The Clearinghouse Provider will
process all records relating to the provision of Roaming Services to Roamers
pursuant to this Agreement and perform related Clearinghouse Services. NWIP may,
in its sole discretion, from time to time and at any time during the term of
this Agreement, including any renewal term(s), remove and replace the
Clearinghouse Provider or undertake, by itself or through any one or more
affiliates, to perform Clearinghouse Services.
5.2 Settlement Provider Designation. The Settlement Provider will
perform Settlement Services, including the settlement of all accounts relating
to Roaming Services between the parties on a monthly basis, and will have the
authority to "net" the obligations of the parties on a monthly basis. NWIP may,
in its sole discretion, from time to time and at any time
15
during the term of this Agreement, including any renewal term(s), remove and
replace the Settlement Provider or undertake, by itself or through any one or
more affiliates, to perform Settlement Services.
5.3 Clearinghouse and Settlement Data. All data required to enable the
Clearinghouse Provider or the Settlement Provider to process Roaming Services
records will be provided by each of NWIP and the Company to the Clearinghouse
Provider or the Settlement Provider whenever reasonably requested and in the
format required by the entity then designated as the Clearinghouse Provider or
Settlement Provider.
5.4 Settlement and Clearinghouse Systems; Costs. (a) NWIP and the
Company have agreed to jointly develop the settlement and clearinghouse systems
contemplated herein. Each party will be responsible for fifty percent (50%) of
the costs associated with the development and implementation of the basic
settlement and clearinghouse systems needed to perform the Settlement Services
and Clearinghouse Services described herein. The incremental costs of any
additional functionality desired in the settlement and clearinghouse systems
(i.e., functionality that is not necessary to the performance of the Settlement
Services or Clearinghouse Services) will be borne by and be the sole
responsibility of the party requesting such additional functionality, unless
such additional functionality is requested jointly, in which case any
incremental costs thereof will be shared equally by NWIP and the Company.
(b) Each of the Company and NWIP will pay their own costs with respect
to Clearinghouse Services and Settlement Services. Each of the Company and NWIP
will be invoiced directly by the Clearinghouse Provider and the Settlement
Provider during the time period for which such services are provided. All costs
billed to the parties hereto for Clearinghouse Services and Settlement Services
will be proportionately based on the volume of Roaming Services traffic
hereunder that is attributable to each of them individually during the period
covered by such invoice. Not more frequently than annually, each party may, upon
reasonable advance notice to the Clearinghouse Provider or the Settlement
Provider, and at reasonable times, review any records in the possession of
either the Clearinghouse Provider or the Settlement Provider relating to, as
appropriate, the Clearinghouse Services or Settlement Services performed by them
hereunder.
6. EXCLUSIVITY
6.1 Exclusivity. This Agreement is exclusive with respect to out-going
roaming traffic generated by Subscribers of the Company Operating Group and the
NDS, respectively. NWIP will send all of the roaming traffic generated by
Subscribers of the NDS in the Company Territory to the Company Operating Group,
with the exception of any traffic directed to any VPN located within the Company
Territory. The Company will send all of the roaming traffic generated by
Subscribers of the Company Operating Group in the NDS Territory to the NDS, with
the exception of any traffic directed to any VPN located within the NDS
Territory. Nothing herein shall be construed or operate to prohibit the Company
Operating Group or the NDS from providing Roaming Service to Roamers who are
Subscribers of other wireless communications service providers, including any
other operators of ESMR Networks, high site ESMR service
16
providers or SMR service providers operating in their respective Home Regions
and nothing herein will restrict the NDS or, subject to Section 2.4, the Company
Operating Group, from providing Roaming Services to Roamers who are Subscribers
of any other wireless communications networks, including, without limitation,
ESMR Networks operated by Affiliates of Nextel outside the United States, or
wireless communication networks operated by any Third-Party Carrier within the
Company Territory or the NDS Territory.
7. BREACH
7.1 Breach; Dispute Resolution. Any breach or alleged breach of this
Agreement or dispute arising hereunder will be resolved by the parties pursuant
to the procedures set forth in Article 12 of the JV Agreement and, in cases
involving a billing dispute, Section 13.6 of the JV Agreement, which are
incorporated herein by this reference.
8. TERM AND TERMINATION
8.1 Term. The initial term of this Agreement will commence on the date
hereof and will continue for ten years, unless extended for an additional period
of up to two and one-half years, as described in Section 4.03 of the
Shareholders' Agreement. Following the initial term, this Agreement may be
extended for up to four additional ten-year renewal terms, which extensions will
occur automatically upon any extension of the JV Agreement pursuant to its
terms, unless the Company provides notice to NWIP of its intent not to renew
this Agreement not less than 60 days prior to the scheduled end of the initial
term or any renewal term.
8.2 Termination. At any time upon or following the expiration or
earlier termination of the JV Agreement, either party may terminate this
Agreement upon notice to the other. Notwithstanding termination, this Agreement
will remain in effect and fully enforceable in accordance with its terms (solely
for purposes of addressing rights existing and obligations incurred prior to the
effective date of termination as set forth in the termination notice) until all
amounts due to either party hereunder, at or prior to the effective date of
termination specified in the notice of termination, are paid in full in
accordance with the terms hereof. No such termination will operate to relieve or
release either party from any consequences of any breach by such party of any
provisions of this Agreement, and the indemnification obligations of each of the
parties pursuant to Section 3.3 hereof shall survive any such termination.
9. MISCELLANEOUS
9.1 Excusable Delay/Time Extension. Where performance by either party
to this Agreement is delayed by reason of an Excusable Delay (as defined in the
JV Agreement), the time for performance, and any otherwise applicable time
limit, schedule or deadline, shall be extended for a period of time equal to the
period of Excusable Delay.
9.2 Amendments. This Agreement may be amended only by a writing
executed by the parties.
16
9.3 Entire Agreement. This Agreement and the other Transaction
Agreements (as defined in the JV Agreement) set forth the entire understanding
of the parties hereto and thereto with respect to the subject matter hereof and
thereof, and supersede all prior contracts, agreements, arrangements,
communications, discussions, representations and warranties, whether oral or
written, between the parties, including but not limited to the Memorandum of
Agreement, dated as of May 1, 1998, among Wireless Investment Partners, L.L.C.,
NWIP and Nextel, as amended.
9.4 Notices. Any notice, request or other communication required or
permitted hereunder must be in writing and is given: (a) when received if
personally delivered; (b) 12 hours after being sent by telecopy, with confirmed
answerback; or (c) 1 business day after being sent by priority delivery by
established overnight courier, to the parties at their respective addresses set
forth below.
To NWIP: Nextel WIP Corp.
0000 Xxxx Xxxxxx Xxxxx
XxXxxx, XX 00000
Attention: General Counsel
Telecopy: (000) 000-0000
To the Company: Nextel Partners Operating Corp.
0000 Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attention: General Counsel
Telecopy: (000) 000-0000
With a copy to: Xxxxxxxx Xxxxxx Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxxxxx
Telecopy: (000) 000-0000
Either party by written notice to the other given in accordance with this
Section 9.4 may change the address or the persons to whom notices or copies
thereof are to be directed.
9.5 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.
9.6 Waiver. Except as otherwise provided in this Agreement, any party
may waive, in writing, compliance by the other parties thereto (to the extent
such compliance is for the benefit of the party giving such waiver) with any of
the terms, covenants or conditions contained in this Agreement (except as may be
imposed by law). Any waiver by any party of any violation of, breach of, or
default under, any provision of any of this Agreement, by any other party will
not be
construed as, or constitute, a continuing waiver of such provision, or waiver of
any other violation of, breach of, or default under, any other provision of this
Agreement.
9.7 Third Parties. Nothing expressed or implied in this Agreement is
intended, or may be construed, to confer upon or give any person or entity other
than the parties hereto any rights or remedies hereunder.
9.8 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 or render unenforceable such provision in any
other jurisdiction. 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.
9.9 Choice of Law. This Agreement shall be governed by New York law,
without regard to choice of law rules that would result in the application of
another state's law.
9.10 Construction.
a. Words used in this Agreement, regardless of the number or gender
specifically used, will be deemed and construed to include any other number,
singular or plural, and any other gender, masculine, feminine or neuter, as the
context requires. The parties hereto have participated equally in the drafting
of this Agreement and no presumption or burden of proof shall arise favoring or
disfavoring any party by virtue of authorship of any provision of this
Agreement.
b. The schedules and exhibits attached to this Agreement are
incorporated herein and are part of this Agreement for all purposes. Unless
otherwise stated, any reference in this Agreement to an exhibit, section or
schedule is to an exhibit, section or schedule of this Agreement.
c. 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.
9.11 Agreement. This Agreement is one of the Collateral Agreements
identified in the JV Agreement. Accordingly, certain provisions of the JV
Agreement by their terms apply to this Agreement, including, without limitation,
Section 2.6, Article 12, and Sections 13.2, and 13.10.
* * *
IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized representatives to execute this Agreement as of the day and year
first above written.
NEXTEL WIP CORP.
By: /s/ Xxxx Xxxxxxx
---------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
NEXTEL PARTNERS OPERATING CORP.
By: /s/ Xxxx Xxxxxxxx
---------------------------------
Name: Xxxx Xxxxxxxx
Title: Chief Financial Officer and
Treasurer
