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EXHIBIT 10.11
***Portions of this exhibit marked by brackets ("[__________]") or otherwise
identified have been omitted pursuant to a request for confidential treatment.
The omitted portions have been filed separately with the Securities and
Exchange Commission.***
AMENDED AND RESTATED
SERVICE AGREEMENT
THIS AMENDED AND RESTATED SERVICE AGREEMENT (the "Agreement") is made
and entered into as of October 1, 1996, by and between TSI, a division of LCC
International, Inc., a Delaware corporation having its principal offices at
0000 Xxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxx 00000 (collectively,
"LCC"), and Nextel Communications, Inc., a Delaware corporation having its
principal offices at 0000 Xxxx Xxxxxx Xxxxx, Xxxxx 000, XxXxxx, Xxxxxxxx 00000
("Nextel")
WITNESSETH:
WHEREAS, Nextel and LCC are parties to that certain Amended and
Restated Software License and Service Agreement, dated as of July 1, 1995,
as heretofore amended (the "July Agreement"); and
WHEREAS, the parties hereto desire to amend, consolidate and restate
the July Agreement in this Agreement, together with the Amended and Restated
Software License Agreement executed by the parties as of the date hereof;
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein, the receipt and sufficiency of which
are acknowledged, the parties hereto hereby agree as follows:
1. DEFINITIONS. As used herein, the following terms shall have
the following respective meanings:
1.1 Commitment Period. The term "Commitment Period" shall mean
the thirty-six (36) month period commencing on October 1, 1996 and ending
on September 30, 1999, during which Nextel has agreed to pay Minimum Service
Charges and LCC has agreed to make available appropriate staffing to perform
requested services for each month during such period in accordance with the
terms hereof.
1.2 Minimum Service Charge. The term "Minimum Service
Charge" shall mean the dollar amount of radio frequency engineering service
fees (excluding taxes, reimbursable expenses and similar charges) that Nextel
guarantees to pay to LCC each month during the Commitment Period in accordance
with Section 4.2.1 hereof.
1.3 Nextel. For the purposes of this Agreement, except
where the context expressly indicates otherwise, the term Nextel shall be
deemed to include Nextel
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Communications, Inc. and each entity that both (i) owns or operates a System
and (ii) is "controlled" by Nextel Communications, Inc., where the term
"control" means the ownership of 50% or more of an entity's capital stock or
voting securities.
1.4 Services. The term "Services" shall mean the services
to be rendered by LCC to Nextel pursuant to Section 2 hereof.
1.5 Systems. The term "Systems" shall mean Nextel's digital
mobile telephone systems in the Territory.
1.6 Territory. The term "Territory" shall mean each geographical
area in the United States (including Alaska and Hawaii), Puerto Rico and/or the
U.S. Virgin Islands in which Nextel operates or plans to operate a System.
1.7 Trademarks. The term "Trademarks" shall mean: (i)
EXP-2001(R), MSAT(TM), LCC(R), and RSAT-2000(R), which are trademarks of LCC,
(ii) LCC(R), which is a service xxxx of LCC, and (iii) any other trademark,
service xxxx or logo used by LCC during the term of this Agreement.
2. LCC's SERVICES.
2.1 RF Engineering Services. Nextel hereby engages LCC to
provide, and LCC hereby agrees to provide to Nextel radio frequency engineering
services in connection with the design, optimization and operation of Systems
in the Territory, subject to the following:
2.1.1 Minimum Service Charges.
(a) For any given month, Nextel shall pay LCC for
the provision of radio frequency engineering services in accordance with the
schedule of engineering service fees set forth in Exhibit A attached hereto
(but giving effect to all applicable discounts), based on the number of hours
devoted by LCC's engineers to providing services requested by Nextel hereunder.
For each month during the Commitment Period, if Nextel does not engage LCC to
perform, and LCC does not perform, radio frequency engineering services
resulting in hourly radio frequency engineering service charges totaling the
Minimum Service Charges (as defined in Exhibit A) for the month, after the
application of all applicable discounts, then Nextel shall pay to LCC an amount
equal to the Minimum Service Charges for the month.
(b) At August 1, 1997 and at each August 1 thereafter
during the Commitment Period, Nextel shall have the option to reduce
the Minimum Service Charges for the immediately following twelve (12) month
period by up to ten percent (10%) of the then-current Minimum Service Charges,
provided that: (i) Nextel notifies LCC in writing of Nextel's election to
reduce the Minimum Service Charges at least thirty (30) days prior to the
relevant August l review date, and (ii) LCC's obligation to be available to
provide Nextel with radio frequency engineering
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services shall be reduced in proportion to any reduction in the Minimum Service
Charges. Notwithstanding any provision herein to the contrary, any reduction of
the Minimum Service Charges shall not affect Nextel's obligations under Section
2.1.5 hereof with respect to assignments of two (2) years or more.
(c) The parties agree to reduce the Minimum
Service Charges, on a pro rata basis, if the Federal Communications Commission
revokes any Nextel license to operate any System.
(d) Any reduction in the Minimum Service Charges
under this Section 2.1.1 shall result in a corresponding reduction in the
monthly staffing levels that LCC has agreed to be available to provide radio
frequency engineering services to Nextel under Section 2.1.2 below; and any
increase in the Minimum Service Charges shall result in a corresponding
increase in such staffing levels.
2.1.2 LCC's Availability. For each month during the
Commitment Period, LCC agrees to remain available to provide radio frequency
engineering services to Nextel at the monthly staffing levels set forth in
Exhibit A attached hereto, assuming an allocation between engineering titles of
one (1) Project Theater (or Project Manager) for every two (2) System Engineers
plus two (2) RF Engineers. In the event Nextel desires to engage LCC to provide
more than the number of engineers required under the monthly staffing levels
set forth in Exhibit A attached hereto, then: (i) in the event Nextel provides
LCC with a written request for one or two engineers above the required monthly
staffing levels, then LCC agrees (assuming the foregoing staffing allocation)
to provide the requested staffing within three (3) weeks of its receipt of
Nextel's request (or, if later, on the date stated in Nextel's written
request), (ii) in the event Nextel provides LCC with a written request for
three engineers above the monthly staffing levels, then LCC agrees (assuming
the foregoing staffing allocation) to provide the requested staffing within
eight (8) weeks of its receipt of Nextel's request (or, if later on the date
stated in Nextel's written request), and (iii) in the event Nextel provides LCC
with a written request for four or more engineers above the monthly staffing
levels, then LCC agrees (assuming the foregoing staffing allocation) to use its
best efforts to meet Nextel's requirements subject to the availability of
sufficient qualified personnel. For the purposes of this Agreement, LCC's
Project Managers, Project Leaders, System Engineers and RF Engineers shall have
substantially all of the qualifications set forth in Exhibit B attached hereto.
2.1.3 LCC's Staffing Plan.
(a) For each month during the Commitment Period,
the parties agree to meet on a quarterly basis to develop and agree upon an
engineering personnel staffing plan for the immediately following three
calendar quarters, until the expiration of the Commitment Period, as follows:
(i) the first staffing plan will cover the immediately following three calendar
quarters, and (ii) each subsequent
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staffing plan will carry forward, from the previous staffing plan, the staffing
plan for the remaining two calendar quarters and include a new staffing plan
for the third calendar quarter. Each staffing plan will be jointly prepared by
LCC and Nextel and will provide for LCC's provision of radio frequency
engineering services to Nextel at dollar amounts equaling not less than the
applicable Minimum Service charges during the relevant month(s).
(b) Each staffing plan will specify: (i) the number of
engineers required, by grade level from Project Manager to RF Engineer, (ii)
the respective staffing levels for each Nextel project office (subject to
Section 2.1.3(c) below), and (iii) the number of engineers that will be
required to provide professional services on a long-term (more than two (2)
years) basis. LCC agrees to be available to provide Nextel with radio
frequency engineering services at least equaling the Minimum Service Charges
for the relevant month(s) in accordance with the then-current staffing plan. If
LCC is unable (due to its inability to provide the required staffing) to
provide radio frequency engineering services equaling the Minimum Service
Charges, then: (A) LCC's radio frequency engineering services for the month
will be invoiced based only on the services actually provided, and (B) LCC
agrees to credit Nextel's account an amount equal to Twenty percent (20%) of
the difference between the Minimum Service Charges for the month and the amount
invoiced to Nextel for radio frequency engineering services under the preceding
subsection (A).
(c) Nextel shall have the option to reallocate any
position designated in the then-current staffing plan for any particular
Nextel project office to another Nextel project office, upon not less than
thirty (30) days advance written notice to LCC. Upon its receipt of any such
notice, LCC agrees to use reasonable efforts to provide the requested engineer
in the newly designated project office, provided that, LCC shall not be liable
for any failure to provide the same and the provisions of Section 2.1.3(b)
shall not apply. Upon such reallocation, LCC will cease staffing the designated
position at the original project office location.
(d) If Nextel fails to present to LCC a projection of
its requirements for radio frequency engineering services, assuming the
allocation between engineering titles described in Section 2.1.2 above, for any
calendar quarter, and as a result, the parties fail to develop a staffing plan
for that calendar quarter, then the staffing plan for that quarter shall be
conclusively deemed to require Nextel to engage the minimum number of engineers
indicated with respect to such calendar quarter on Exhibit A hereto, which
engineers shall be deemed allocated between engineering titles as nearly as
practicable in accordance with the staffing ratio specified in Section 2.1.2
above, and such engineers shall be assigned to Nextel project offices in a
manner as nearly as practicable consistent with the project office assignments
in effect for the most recent month for which an agreed staffing plan existed.
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(e) Nextel and LCC hereby confirm that: (i) the
agreed staffing plan for the months of October, November and December 1996 is
attached hereto as Exhibit D-1; (ii) the tentative staffing plan for the first
and second calendar quarters of 1997 is attached hereto as Exhibit D-2, and the
parties intend to finalize those items required to arrive at an agreed staffing
plan for such quarters not later than January 1, 1997; and (iii) such staffing
plans, once agreed upon, shall be subject to further revision or modification
only as provided herein or as Nextel and LCC may otherwise agree in writing.
2.1.4 Key Personnel; Promotions. LCC agrees to notify
Nextel (in the case of promotions or other changes involving rate increases, in
writing at least 30 days prior to any resulting rate increase) before LCC
reassigns, promotes or changes the responsibilities of any radio frequency
engineer who is rendering Services to Nextel. LCC agrees to take into account
Nextel's views regarding the proposed reassignment, promotion or change in
responsibilities, it being understood that LCC shall have sole authority to
make the final decision regarding any such personnel. In the event LCC, on its
own initiative or as a result of the removal of an employee for "just cause"
(as defined in Section 2.1.5(b) below), reassigns any of the foregoing
personnel, then: (a) LCC shall use its best efforts to have the reassigned
engineer spend: (i) three (3) days, for short-term assignments, or (ii) five
(5) days for long-term assignments, at his/her originally assigned project
office and/or location, training his/her replacement without charging Nextel
for the services of the reassigned engineer during the aforementioned training
period, and (b) Nextel will not be obligated to reimburse LCC for any expenses
incurred in relocating and/or moving the reassigned engineer to his/her new
assignment nor will Nextel be obligated to reimburse LCC for any expenses
incurred in moving or otherwise transporting his/her replacement to fill the
vacant staffing position so created.
2.1.5 Long Term Assignments. The parties acknowledge that,
pursuant to Section 2.1.5(a) of the July Agreement, LCC assigned approximately
three (3) engineers to perform services at Nextel project offices for a period
of two (2) years or more. For so long as these engineers remain under their
current 2 year assignment, (a) Nextel agrees not to terminate any such
engineer's assignment before the expiration of the applicable two (2) year
period, or such longer period as may have been requested by Nextel (the
"Engagement Period"), other than for "just cause," and (b) in lieu of the
standard per diem, reimbursable living expenses and income tax equalization
payments paid by Nextel hereunder, for each engineer, Nextel shall reimburse
LCC: (i) for moving expenses incurred by LCC in moving the subject employee to
and back from the relevant market, at a rate of [_____________] per move (where
moving to the market constitutes a single move and moving back from the market
constitutes a second move) plus (ii) a monthly per diem in the amount of
[____________________] per engineer on long term assignment per month. In the
event Nextel terminates any such engineer's assignment before the expiration of
the applicable Engagement Period, other than for "just cause," Nextel also
agrees to pay LCC termination charges equal to the sum of
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[___________________] times the actual number of months remaining in the
Engagement Period. For the purposes of this Section 2.1.5(b), the term "just
cause" shall mean: (i) after an engineer consistently fails to perform his/her
responsibilities in a professional and competent manner, after notice and
reasonable opportunity to cure his/her performance, or (ii) any act of
dishonesty, fraud or deceit.
2.1.6 Nextel Decisions. LCC and Nextel agree that because
Nextel and/or other persons, and not LCC, shall have ultimate decision-making
authority concerning the design, conceptual planning, optimization and/or
expansion of the Systems, LCC shall not, in the performance of any Services for
Nextel under this Agreement, be responsible or have any liability for any
decision made regarding the design, conceptual planning, optimization and/or
expansion of the Systems and/or any other decisions made by Nextel and/or any
person or entity providing services/products to Nextel (that is engaged by
Nextel directly and is not LCC or an employee, agent or a sub-contractor of
LCC) concerning the Systems. Notwithstanding the provisions of this Section
2.1.6: (i) in rendering the Services LCC (and its employees, agents and
sub-contractors providing Services hereunder) shall contribute its best
efforts to Nextel's overall system engineering activities in order to achieve a
system design of high quality, and (ii) nothing in this Section 2.1.6 shall
release LCC from (a) its obligations pursuant to warranties applicable to
Services provided hereunder, as contemplated in Section 6.1 hereunder or (b)
its agreements regarding the provision or Services as set forth herein or in
any staffing plan adopted as provided herein.
2.1.7 Subcontracting. LCC shall have the right to engage
subcontractors on a limited basis to perform any or all of the Services,
subject to Nextel's prior written approval, which shall not be unreasonably
withheld or delayed. Each such subcontractor shall execute a confidentiality
agreement with Nextel that is satisfactory to Nextel in form and substance.
2.1.8 Certain Obligations. The parties hereby acknowledge
that the minimum payments, availability requirements, and staffing provisions
of this Agreement shall remain in effect only during the Commitment Period.
After the expiration of the Commitment Period, Nextel may engage LCC to perform
radio frequency engineering services, and LCC may agree to perform such
services, from time to time. The provision of such services shall be subject to
the terms, conditions and provisions of this Agreement, except as the parties
may otherwise agree.
2.1.9 Sale of System. Nextel agrees that prior to
any sale, transfer or assignment of any System in the Territory to any person
other than a Nextel affiliate or subsidiary: (i) Nextel shall advise LCC in
writing of such sale, transfer or assignment and (ii) Nextel shall use
reasonable efforts to cause the purchaser, transferee or assignee to enter into
a separate services agreement in connection with the transfer of the relevant
System, which separate services agreement shall provide for the provision by
LCC of Services on substantially the same terms as set
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forth herein. In the event that the purchaser, transferee or assignee enters
into such a separate services agreement, then Nextel shall be entitled to a
credit against the Minimum Service Charges paid by such purchaser in such month
under such separate services agreement. Such separate services agreement may
only be assigned to the purchaser, transferee or assignee of such System. In
the event that Nextel's sale, transfer or assignment of such System is not
completed, the parties shall terminate and cancel such separate services
agreement and continue under the terms of this Agreement. In addition, if such
sale, transfer or assignment should include all or substantially all of the
Systems in the Territory, Nextel shall obtain from the relevant purchaser,
assignee or transferee an appropriate written instrument to evidence the
assumption of this Agreement a part of such sale, assignment or transfer
transaction.
2.2 RF Engineering; Exclusivity. Nextel hereby engages
LCC as Nextel's exclusive provider during the Commitment Period of radio
frequency engineering services, of the type offered by LCC, in the Territory,
and agrees not to, without LCC's prior written consent, engage any person,
corporation, company, partnership or entity other than LCC to provide radio
frequency engineering services to Nextel in the Territory during the Commitment
Period. This provision shall not, in any event, limit or restrict Nextel's
ability to: (i) employ radio frequency engineers or other personnel, as Nextel
employees, to perform radio frequency engineering services, or (ii) retain, on
an appropriate basis as other than Nextel employees, radio frequency engineers
or other personnel to periodically audit LCC's performance under the terms of
this Agreement, or (iii) employ replacement engineers as contemplated by
Section 9.2.
3. PROPRIETARY PRODUCTS AND WORKS.
3.1 Works. All right, title and interest in and to any
and all software, know-how, inventions, discoveries, techniques, methodologies,
databases, documentation or other intellectual property used, developed or
conceived of by LCC or its subcontractors in the performance of the Services
shall be and remain the exclusive proprietary property of LCC, provided,
however, that any and all tangible reports, designs, drawings, plot maps or
other materials that are delivered to and paid for by Nextel hereunder shall be
and remain the sole and exclusive property of Nextel, notwithstanding any
termination or expiration of this Agreement.
3.2 Assistance. Each party agrees to notify the other
party immediately of any infringement, unauthorized possession or misuse of any
intellectual property belonging to the other party. Upon one party's request
and at such party's expense, the other party shall render all reasonable
assistance in the prosecution and/or settlement of any lawsuit or other action
instituted to prevent or terminate any such infringement.
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4. FEES AND EXPENSES.
4.1 Service Fees. For each month during the term of this
Agreement, Nextel agrees to pay LCC for RF engineering services in accordance
with the schedule of engineering service fees set forth in Exhibit A attached
hereto (but giving effect to all applicable discounts and credits), provided,
however, that Nextel's total monthly payment for hourly radio frequency
engineering service fees for each month during the Commitment Period shall not
be (except as expressly provided herein) less than the applicable Minimum
Service Charges for the relevant month, as determined in accordance with
Section 2 above.
4.2 Expenses. Nextel agrees to reimburse LCC for all
reasonable expenses (including, without limitation, travel (with airfare at
coach rate), lodging, meal, telephone, facsimile, copying, shipping and other
direct and/or associated expenses and costs) incurred by LCC in the performance
of the Services, plus [___________]. The foregoing expenses shall include any
reasonable amounts paid by LCC to its employees as reimbursement for temporary
living expenses, per diems and income tax equalization expenses, provided,
however, that such payments shall not exceed the payments allowable under any
expense reimbursement guidelines established from time to time by mutual
agreement of the parties. Nextel and LCC agree that certain expense
reimbursement guidelines, for the identified expense categories, as in effect
on October 1, 1996 are set forth on Exhibit E hereto, and shall continue in
effect until changed by agreement of the parties.
4.3 Adjustment in Fees.
(a) On or prior to June 1 in each year, beginning with
June 1, 1997, appropriate senior representatives of LCC and Nextel shall meet
and review the conduct of the Services hereunder and Nextel's suggestions for
improvement. Such review also shall address LCC's and Nextel's views concerning
whether the Services and related arrangements hereunder are competitive, on
price and performance terms, to those then being offered by comparable
providers (in terms of size, qualifications and capabilities) of comparable
services that otherwise would be available to Nextel. If appropriate, the
parties may discuss and implement any changes required to the terms of this
Agreement by reason of competitive conditions then-prevailing in the market
place (which in no event shall require any reduction in the amount of the
Minimum Service Charges during the Commitment Period).
(b) If, as a result of this review process, LCC should
reasonably determine that an increase in the monthly per diem amounts set forth
in Section 2.1.5, or the expense reimbursement amounts set forth in Exhibit E
should be made, LCC shall so notify Nextel in writing on or prior to June 30 in
the relevant year, and thereupon LCC shall have the right to increase such
amounts (with such increase to be effective beginning on August 1 of the
relevant year) by an amount equal to the percentage increase, if any, in the
Consumer Price Index for the twelve (12) month
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period ending two (2) months prior to such effective date, up to a maximum of
six (6%). As used in this Agreement the term "Consumer Price Index" shall mean
the "Index Number" for "All Items" for the "All Urban Consumers" as published
in the Revised Consumer Price Index-U.S. City Average (36 Mo. Avg. 1982-84 =
100) by the Bureau of Labor Statistics of the U.S. Department of Labor.
(c) If, as a result of this review process, LCC should
reasonably determine that an increase in the hourly rates for engineering
services set forth on Exhibit A hereto should be made, LCC shall so notify
Nextel in writing on or prior to June 30 of the relevant year, and thereupon
LCC shall have the right to increase such hourly rates (with such increase to
be effective on August 1 of the relevant year) for each month during the
Commitment Period by an amount equal to the percentage increase in LCC's
standard published rates (subject to Section 4.5 hereof) during the twelve (12)
month period immediately preceding the date of such notice of increase;
provided however, that the increase in engineering service fees on any August 1
shall not, on a weighted average basis based on Nextel's usage of LCC personnel
during the six (6) months prior to such August 1, exceed [________].
4.4 Payment Terms and Interest. All payments of service
fees, reimbursements of expenses, and other fees or charges due and payable
under this Agreement shall be made within thirty (30) days of the date of
Nextel's receipt of LCC's invoice. All past due payments shall bear interest,
until paid in full at the rate of one percent (1%) per month or the highest
rate allowed by applicable law, whichever is lower. Should LCC commence an
action against Nextel to collect any payments due, Nextel agrees to pay all
reasonable costs of collection, together with interest due and reasonable
attorneys' fees.
4.5 Preferred Customer. Notwithstanding anything herein
to the contrary, it is the intent of the parties that: (i) Nextel shall be
treated as a preferred customer; and (ii) LCC's fees and charges for, services
provided hereunder, on an overall basis, shall be the most favorable fees and
charges that LCC makes available to any other customer for such services.
5. HARDWARE PRODUCTS
5.1 LCC Manufactured Products. During the term of this
Agreement, Nextel shall have the right (but no obligation) to purchase from LCC
those LCC manufactured hardware products and associated maintenance programs
generally offered by LCC to its customers at LCC's then-current standard list
price, provided, however, that Nextel shall be entitled to a [_____________]
discount off the standard list price for each product base unit, excluding
accessories and any third party products. Notwithstanding the foregoing, the
prices charged to Nextel by LCC shall be no greater than the prices charged by
LCC for the same products to its other similarly situated customers given the
same volume levels, terms and conditions of the relevant order. Provision by
LCC to Nextel of such hardware products shall be:
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(i) subject to availability; (ii) subject to Nextel's agreement not to sell,
distribute, transfer or assign such products to other persons, and (iii) sold
under LCC's standard terms and conditions of sale (including, without
limitation, warranties and delivery terms) for the item(s) ordered.
5.2 Hardware Development. The parties agree to regularly
consult with each other with respect to the continued development and
availability of LCC's field test measurement equipment products for the iDEN
marketplace. The parties agree to meet periodically throughout the term of this
Agreement to: (i) review and discuss Nextel's needs and requirements for such
products, and (ii) attempt to develop mutually acceptable pricing,
functionality and availability of such products and any upgrade requirements.
In particular, LCC agrees to use reasonable commercial efforts to have the
following functionality available in certain of its products as follows:
(a) On or before December 31, 1996, an LCC manufactured
RSAT-2000 iDEN, which is capable of operating with (i) an ESMR scan receiver,
and either (ii) an iDEN mobile (car mount) radiotelephone, or (iii) an iDEN
portable (handheld) radiotelephone;
(b) On or before March 31, 1997, an LCC manufactured
EXP-2001 iDEN, which is capable of operating with (i) an ESMR scan receiver,
(ii) an iDEN mobile (car mount) radiotelephone, and (iii) an iDEN portable
(handheld) radiotelephone; and
(c) On or before June 30, 1997, an LCC manufactured
MSAT-2000 iDEN, which is capable of operating with (i) an ESMR scan receiver,
and (ii) an iDEN portable (handheld) radiotelephone."
5.3 Maintenance & Support. LCC hereby agrees to make
available to Nextel the LCC manufactured hardware maintenance and support
programs described in Exhibit C attached hereto.
5.4 Discretionary Nature of Purchases. Nextel has not
committed or promised to commit to purchase from LCC any LCC manufactured
hardware products or associated maintenance programs, whether or not the same
are developed or manufactured by LCC independently or as a consequence of
consultations with Nextel as contemplated above. Any such purchases would be
entered into only to the extent Nextel, in its discretion, determines to enter
into such agreements. No Services to be provided hereunder or software licensed
in connection herewith are conditioned on any purchases by Nextel of any LCC
manufactured hardware products or associated maintenance programs.
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6. WARRANTY AND DISCLAIMER.
6.1 LCC's Warranties.
6.1 Warranty. LCC hereby warrants that LCC's radio
frequency engineering services will be performed in accordance with generally
accepted design engineering practices and standards for the wireless
communications industry. LCC's sole and exclusive obligation under the
foregoing warranty shall be to use reasonable efforts to reperform (at LCC's
sole cost and expense) any nonconforming work as soon as practicable after
receiving written notice from Nextel, provided that written notice is received
within twelve (12) months after the work was performed or delivered to Nextel.
6.2 DISCLAIMER. THE WARRANTIES SET FORTH IN SECTION 6.1
ARE THE ONLY WARRANTIES MADE BY LCC UNDER THIS AGREEMENT. SUCH WARRANTIES ARE
IN LIEU OF, AND LCC EXPRESSLY DISCLAIMS, ALL OTHER WARRANTIES AND/OR CONDITIONS
UNDER THIS AGREEMENT, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT
NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, ANY IMPLIED WARRANTY OF
FITNESS FOR A PARTICULAR PURPOSE, ANY IMPLIED WARRANTY OF NON- INFRINGEMENT AND
ANY IMPLIED WARRANTY ARISING OUT OF THE COURSE OF DEALING, CUSTOM OR USAGE OF
TRADE. THE WARRANTIES SET FORTH IN SECTION 6.1 MAY NOT BE ENLARGED, DIMINISHED
OR AFFECTED WITHOUT LCC'S AND NEXTEL'S WRITTEN CONSENT.
6.3 LIMITATION OF LIABILITY. IN NO EVENT WILL LCC BE
LIABLE TO NEXTEL OR ANY OTHER PERSON FOR LOSS OF PROFITS, BUSINESS, USE OR DATA
OR SPECIAL, EXEMPLARY, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES
OF ANY KIND OR FOR ANY REASON, INCLUDING, WITHOUT LIMITATION, THE BREACH OF
THIS AGREEMENT OR ANY TERMINATION OF THIS AGREEMENT, WHETHER SUCH LIABILITY IS
ASSERTED ON THE BASIS OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT
LIABILITY) OR OTHERWISE, EVEN IF LCC HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES. THE ESSENTIAL PURPOSE OF THIS PROVISION IS TO LIMIT THE POTENTIAL
LIABILITY OF LCC ARISING OUT OF THIS AGREEMENT. IN NO EVENT SHALL LCC'S
LIABILITY TO NEXTEL HEREUNDER EXCEED, IN THE AGGREGATE,
[______________________________________________]; PROVIDED, HOWEVER, THAT IN
THE EVENT THAT LCC IS FOUND LIABLE FOR WILLFUL BREACH OF THIS AGREEMENT, THEN
AND ONLY THEN LCC'S LIABILITY HEREUNDER MAY BE INCREASED BEYOND SUCH LIMIT BUT
ONLY TO THE EXTENT THAT SUCH LIABILITY DOES NOT EXCEED THE LESSER OF: (1)
NEXTEL'S ACTUAL (E.G. OUT OF POCKET) DAMAGES RESULTING FROM SUCH WILLFUL
BREACH OR (2) ALL OF-THE SERVICE
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FEES AND SOFTWARE LICENSE FEES PAID BY NEXTEL TO LCC UNDER THIS AGREEMENT
DURING THE TWELVE MONTH PERIOD PRIOR TO THE DATE THE CLAIM WAS MADE.
7. TAXES. DUTIES AND LEVIES.
7.1 Nextel's Obligation to Pay. All fees for Services and
other payments to LCC are exclusive of any and all taxes, duties or levies
assessed by any governmental authority in the United States in respect of such
service fees and other payments. All such taxes, duties and levies (exclusive
of any taxes based upon LCC's net income) shall be assumed by and paid for by
Nextel, irrespective of whether included in any invoice sent to Nextel at any
time by LCC
8. NON-DISCLOSURE AND CONFIDENTIALITY.
8.1 Nondisclosure of Proprietary Information. In the
event either party hereto (the "Receiving Party") obtains from the other party
hereto (the "Disclosing Party") information in whatever form which is
confidential or proprietary ("Proprietary Information") the Receiving Party:
(i) shall treat all such Proprietary Information as confidential; (ii) shall
use such Proprietary Information only for the purposes contemplated in this
Agreement; (iii) shall protect such Proprietary Information, whether in storage
or in use, with the same degree of care as the Receiving Party uses to protect
its own proprietary information against public disclosure, but in no case with
less than reasonable care; and (iv) shall not disclose such Proprietary
Information to any third party except to such employees of the Receiving Party
who need to know such Proprietary Information for the purpose of effectuating
this Agreement, who have been informed of the confidential nature of such
Proprietary Information and who are bound in writing by the provisions of this
Section 8.
8.2 Exclusions. The provisions of this Section 8 shall
not apply to any Proprietary Information which: (i) was in the public domain on
the date hereof or comes into the public domain other than through (a) the
fault or negligence of the Receiving Party or (b) a third party's breach of a
nondisclosure obligation to the Disclosing Party; (ii) was lawfully obtained by
the Receiving Party from a third party without breach of (a) this Agreement by
the Receiving Party or (b) a nondisclosure obligation of any third party to the
Disclosing Party, and otherwise not in violation of the Disclosing Party's
rights; (iii) was known to the Receiving Party at the time of disclosure as
shown by the Receiving Party's records in existence at the time of disclosure;
(iv) was independently developed by the Receiving Party, as shown by written
evidence of the Receiving Party, without making use of any Proprietary
Information of the Disclosing Party; or (v) is required to be disclosed
pursuant to the order of any court or governmental agency.
8.3 Return. Upon the expiration or termination of this
Agreement, and in any event upon the Disclosing Party's request at any time,
the Receiving Party
- 12 -
13
shall: (i) return to the Disclosing party all documents (including any copies
thereof) embodying the Disclosing Party's Proprietary Information and (ii)
certify in writing to the Disclosing Party, within ten (10) days following the
Disclosing Party's request, that all such Proprietary Information has been
returned.
8.4 Injunctive Relief. LCC and Nextel acknowledge that
the extent of damages in the event of the breach of any provision of Section
8.1 or 8.3 would be difficult or impossible to ascertain, and that there will
be available no adequate remedy at law in the event of any such breach. Each
party therefore agrees that in the event it breaches any provision of Section
8.1 or 8.3, the other party will be entitled to injunctive or other equitable
relief, in addition to any other relief to which it may be entitled.
8.5 Survival. The provisions of this Section 8 shall
survive the expiration or termination of this Agreement.
9. ADDITIONAL COVENANTS.
9.1 Non-solicitation. During the term of this Agreement
(including renewal terms, if any) and for a period of one (1) year following
the expiration or termination of this Agreement, neither party nor any of its
officers, agents, subsidiaries, successors or assigns shall, directly,
indirectly or in concert with any other person, solicit the services of,
retain, attempt to employ or employ any employee of the other party. In the
event this Agreement is terminated, and either party in such one year
post-termination period desires to hire any radio frequency engineer
then-assigned to perform services in any Nextel project office under this
Agreement, or in the event LCC desires to hire any Nextel employee or Nextel
desires to hire any other LCC employee, then (a) the party seeking to hire (the
"Hiring Party") shall provide the other party (the "Other Party") with written
notice of its desire to hire the relevant engineer prior to entering into any
discussions with, or making any employment offers to the relevant engineer, and
(b) the Other Party shall promptly advise the Hiring Party whether the Other
Party intends to waive, in its sole discretion, the provisions of this Section
9.1. In the event the Other Party elects to waive the provisions of this
Section 9.1, then (i) the parties agree to negotiate, in good faith, for the
Hiring Party's payment to the Other Party of an appropriate finder's fee
sufficient to compensate the Other Party for the investment (including
training) made by the Other Party in the training and professional development
of the relevant engineer or other employee, and (ii) contingent upon the
parties having reached such agreement, the Hiring Party shall be free to
solicit the services of, retain and/or employ the relevant engineer or other
employee.
9.2 Removal of Personnel. In the event LCC assigns any
person to perform Services hereunder, and that individual fails to perform
his/her responsibilities in a processional and competent manner, after notice
and a
- 13 -
14
reasonable opportunity to cure his/her performance, then: (i) Nextel shall have
the option, upon written request to LCC, to have LCC terminate the individual's
assignment, and (ii) as soon as practicable following LCC's receipt of such a
request from Nextel, LCC agrees to terminate the individual's assignment and
provide Nextel with a suitable replacement for that individual's position. In
the event that any radio frequency engineer as a replacement also fails to
perform his/her responsibilities in a professional and competent manner, after
notice and a reasonable opportunity to cure his/her performance, and in the
event that Nextel gives a written request to have LCC terminate the assignment
of such replacement person and LCC removes the engineer at Nextel's request,
then (i) Nextel shall be free to replace the engineer so removed using any
other vendor or source (notwithstanding the exclusivity provisions hereof) to
fill the position that LCC's engineer was intended to perform, and (ii) the
Minimum Service Charges set forth in Exhibit A shall be reduced by an amount
equal to the amount of base hourly engineering service fees Nextel would have
paid LCC for the replacement engineer to complete his/her scheduled assignment,
and the reduction shall apply over the period of the intended assignment.
10. TERM AND TERMINATION
10.1 Term. This agreement shall commence on the date first
set forth above and shall continue in full force and effect until October 31,
1999, and shall thereafter be automatically renewed for additional and
successive terms of one (1) year, unless sooner terminated as provided herein,
provided, that during such renewal term(s), the exclusivity arrangements
contemplated by section 2.2 shall not apply, the pricing for services shall be
solely as determined in compliance with Section 4.5, and there shall be no
minimum purchase commitments.
10.2 Termination. This agreement may be terminated:
10.2.1 By Nextel or LCC, immediately upon written
notice of terminations in the event of a material breach of this agreement by
the other party- if such breach continues uncured for a period of thirty (30)
days after written notice of such breach;
10.2.2 By Nextel or LCC, immediately upon written
notice of termination to the other party, in the event the other party shall:
(i) become insolvent; (ii) make an assignment for the benefit of creditors;
(iii) file a voluntary bankruptcy petition; (iv) acquiesce to any involuntary
bankruptcy petition; (v) be adjudicated bankrupt; or (vi) cease to do business;
10.2.3 By Nextel or LCC, upon prior written notice
to the other party at least sixty (60) days prior to the conclusion of the
initial term or any annual renewal term thereafter;
10.2.4 By an executed written agreement between
Nextel and LCC.
- 14 -
15
10.4 Termination of Prior Agreement. Upon the execution of
this Agreement, the July Agreement shall be automatically superseded and
replaced in its entirety by this Agreement. Each of Nextel and LCC, by
executing this Agreement, irrevocably waives and releases any and all claims
either may have against the other for any non-compliance with the terms of the
July agreement by such other party.
11. GENERAL.
11.1 Binding Effect; Assignment Restrictions.
This agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns. Notwithstanding the
foregoing, neither Nextel nor LCC shall be entitled to assign or transfer any
or all of its respective rights or obligations hereunder without the prior
written consent of the other party; provided, however, that each party shall be
entitled to assign or transfer any or all of its rights to any entity that
controls, is controlled by or is under common control with such party without
the prior written consent of the other party. Any attempted assignment or
transfer which is made in violation of this Section 11.1 shall be null and void
and shall be deemed a material breach of this Agreement.
11.2 Relationship. The relationship between the parties to
this Agreement is and shall be that of independent contractors. It is expressly
agreed that nothing in this Agreement shall be construed to create or imply a
partnership, joint venture, agency relationship or contract of employment.
Neither party shall have the authority to make any statement, representation or
commitment of any kind, or to take any action, that shall be binding on the
other party, except as authorized in writing by the party to be bound.
11.3 Force Majeure. The obligations hereunder of each
party shall be suspended while and to the extent that such party is prevented
from complying herewith in whole or in part by any event beyond the reasonable
control of such party, which for purposes of this Agreement shall include,
without limitation, acts of God, earthquakes, unavoidable accidents, laws,
rules, regulations or orders of government authorities, acts of war (declared
or not), hostilities, blockades, civil disturbances, embargoes, strikes or any
other similar event or cause. If any event described in the preceding sentence
should result in the suspension of either party's performance of its
obligations hereunder, such party shall give written notice of such suspension
to the other party, specifying in reasonable detail the nature of the event
causing such suspension. The party whose performance has been suspended shall:
(i) resume performance of its obligations hereunder as soon as reasonably
practicable after the circumstances preventing such performance as provided
above shall have terminated or ceased to have such effect and (ii) immediately
notify the other party hereto in writing of such resumption.
- 15 -
16
11.4 Entire Agreement; Amendment. This Agreement
(together with the Exhibits attached hereto) constitutes the entire agreement
between LCC and Nextel, including their respective predecessor entities and
controlled affiliates, regarding the subject matter hereof. All prior or
contemporaneous agreements, proposals, understandings and communications
between LCC and Nextel regarding the subject matter hereof (including, without
limitation, the July Agreement and each of the agreements referenced in
Sections 12.4, 11.2(a) and 11.2(b) of the July Agreement) whether oral or
written, are superseded by and merged into this Agreement. Neither this
Agreement nor any Exhibit hereto may be modified or amended except by a written
instrument executed by both LCC and Nextel. In the event of any inconsistency
between the terms of this Agreement and any purchase order or similar document
issued by Nextel under this Agreement, the terms of this Agreement shall
control. Any additional terms contained in any such purchase order or similar
document shall be of no force or effect, and LCC expressly objects to and
rejects all such additional terms.
11.5 Severability. In the event any one or more of the
provisions contained in this Agreement shall for any reason be held to be
invalid, illegal or unenforceable in any respect, the remaining provisions of
this Agreement shall be enforceable to the maximum extent possible.
11.6 Notices. All notices- consents and other
communications hereunder shall be provided in writing and shall be delivered
personally, by registered or certified mail (return receipt requested),
overnight courier, facsimile or similar method communication, to the parties at
the following addresses (or such other address as may have been furnished by or
on behalf of such party by like notice):
If to LCC:
TSI, a division
of LCC International, Inc.
0000 Xxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Facsimile: (000) 000x0000
Attention: President
With Copy to: General Counsel
- 16 -
17
If to Nextel:
Nextel Communications, Inc.
0000 Xxxx Xxxxxx Xxxxx, Xxxxx 000
XxXxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Chief Technology Officer
With a copy to: General Counsel
Communications sent by facsimile shall be deemed effectively served
upon dispatch. Communications sent by registered or certified mail shall be
deemed effectively served seven (7) calendar days after mailing.
Communications sent by overnight courier shall be deemed effectively served one
(1) business day after dispatch.
11.7 Waiver. No waiver by either party of a breach of any term,
provision or condition of this Agreement by the other party shall constitute a
waiver of any succeeding breach of the same or any other provision hereof. No
such waiver shall be valid unless executed in writing by the party making the
waiver.
11.8 Headings. The section and subsection headings used in this
Agreement are intended for reference purposes only and shall not affect the
interpretation or construction of any provision of this Agreement.
11.9 Limitations. No action, regardless of form, arising out of
this Agreement may be brought by either party more than two (2) years after the
cause of action has arisen.
11.10 Attorney's Fees. In the event it is necessary for either party
to take any legal action to enforce any of the terms, provisions or conditions
of this Agreement, the prevailing party will be entitled to recover from the
other party all reasonable attorneys' fees and all reasonable costs and
expenses relating to such legal action.
11.11 Accrued Rights. The termination or expiration of this
Agreement shall not effect or prejudice either party's accrued rights
hereunder.
11.12 Governing Law; Consent to Jurisdiction. This Agreement shall
be governed by and construed in accordance with the laws of the Commonwealth of
Virginia, without regard to principles of conflicts of law. Each party hereby
irrevocably submits to the jurisdiction and venue of the federal and/or state
courts of the Commonwealth of Virginia for the purpose of any legal or
equitable action arising under this Agreement. Each party agrees that service
of process on such party in any such action may be made by certified or
registered mail, return receipt requested, to the address of such party set
forth in Section 11.6.
- 17 -
18
11.13 Dispute Resolution. If any dispute arises under this Agreement
that is not settled promptly in the ordinary course of business, the parties
shall seek to resolve such dispute between them, first by negotiating promptly
with each other in good faith, face-to-face negotiations. Such face-to-face
negotiations shall be conducted by the respective designated senior management
representatives of each party. If the parties are unable to resolve the dispute
between them within twenty (20) business days (or such other period as the
parties shall mutually agree upon) through such face-to-face negotiations, then
the complaining party may commence legal action in accordance with Sections
11.9 and 11.12 of this Agreement.
11.14 Survival. The respective rights and obligations of the parties
under this Agreement that, by their nature and import, are intended to survive
the termination or expiration of this Agreement shall survive the termination
or expiration of this Agreement.
11.15 Acknowledgment. EACH PARTY ACKNOWLEDGES THAT IT HAS READ THIS
AGREEMENT (INCLUDING THE EXHIBITS HERETO), UNDERSTANDS IT AND AGREES TO BE
BOUND BY ITS TERMS AND CONDITIONS.
IN WITNESS WHEREOF the parties hereto, by their duly authorized
representatives, have executed this Agreement as of the date first set forth
above.
NEXTEL COMMUNICATIONS, INC. LCC INTERNATIONAL, INC.
By: /s/ Xxxxx Xxxx By: /s/ Xxxxxx Xxxxx
------------------------------- -----------------------------
Title: Chief Technology Officer Title: President
---------------------------- --------------------------
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19
EXHIBIT A
SCHEDULE OF ENGINEERING SERVICE FEES
1. Base Rates. Nextel shall pay LCC for the performance of radio
frequency engineering services based on the number of hours devoted to such
services by LCC in accordance with the following schedule of base hourly rates:
Title Hourly Charge
----- -------------
VP/
Manager of Engineering [_____________]
Project Manager [_____________]
Project Leader [_____________]
System Engineer [_____________]
RF Engineer [_____________]
Notwithstanding the foregoing, LCC agrees that the radio frequency
engineering service charges for any individual engineer assigned to perform
Services in the United States shall not exceed [____] hours during any given
month.
2. Volume Discounts. LCC agrees to discount the total base hourly
radio frequency engineering service fees charged to Nextel each month during
the Commitment Period by [____].
3. Minimum Service Charges. Nextel guarantees to pay LCC a
minimum monthly service charge (after the application of all applicable
discounts) for each month during the Commitment Period, as adjusted in
accordance with Section 2.2.3 of the Agreement, in accordance with the
following schedule:
- 19 -
20
Months Minimum Service Charge
------ (Monthly Payment Amounts)
-------------------------
October, 1996 [_____________]
November, 1996 [_____________]
December, 1996
January, 1997 through
December, 1997 [_____________]
January, 1998 through
December, 1998 [_____________]
January, 1999 through [_____________]
July, 1999
August, 1999 [_____________]
September, 1999 [_____________]
4. LCC's Monthly Staffing Levels. LCC agrees to have the
following number of radio frequency engineers (which the parties anticipate
will result in services approximating the Minimum Service Charge) available to
provide radio frequency engineering services to Nextel each month during the
Commitment Period, assuming an allocation between engineering titles of one
Project Leader (or Project Manager) for every two System Engineers plus two RF
Engineers, in accordance with the following schedule:
Months Total Number
------ of Engineers
Available Per Month
-------------------
October, 1996 [____]
November, 1996 [____]
December, 1996 [____]
January, 1997 through
December, 1997 [____]
January, 1998 through
December, 1998 [____]
January, 1999 through
July, 1999 [____]
August, 1999 [____]
September, 1999 [____]
- 20 -
21
EXHIBIT B
DESCRIPTION OF ENGINEERING TITLES
PROJECT MANAGER
Skilled in project management.
Able to make commitments that need the support of LCC in Arlington.
Able to access all technical resources in entire LCC infrastructure.
- Develop and implement quality control procedures & appropriate standards
- Oversees the design of each market
- Sets quarterly goals & objectives for each market
- Project planning
- Assures that all commitments to the customer are met
- Discussions/solutions/negotiations of contractual issues with the Customer
- Contact person for the customer regarding xxxxxxxx deliverables, concerns,
etc.
- Regular contact with the customer to assure needs are being met by
responsible engineering team
- Ability to select vendors and appropriate technologies
- Quantify resources needed for start-up system
- Assist in development of corporate market level strategy
- Ability to initiate new projects
- One or more markets of responsibility
- Capable of fulfilling all aspects of the following positions: Project
Leader, System Engineer and RF Engineer
PROJECT LEADER
Skilled in managing all roles in the RF network design and implementation
process.
Mastery in all technical aspects of mobile radio network engineering.
- Primary client interface in the field
- Assumes project management responsibility for RF engineering in the market
- Develops overall project planning and review for the market
- Monitors progress, provides quality review and technical guidance to LCC
staff as necessary
- Provides presentations and/or job training for clients
- 21 -
22
- Responsible for overall system design
- Supervises and oversees work efforts of the LCC staff engineers
- Provides field work support
- Performs other project related duties (engineering reports, research,
travels, etc.)
- Provides general technical support to the customer
- Provides assistance to Project Manager as required
- Coordination of leasing and zoning issues
- Attends market level meetings
- Coordinates LCC workload in market
- Prepares and presents market level reviews, projects, concerns
- Delegates work among LCC team
- Capable of fulfilling all aspects of the following positions: System
Engineer and RF Engineer
SYSTEM ENGINEER
Knowledge of mobile radio network engineering.
Able to make system level design decisions effecting network performance.
- System related RF design work
- Frequency planning
- Expansion planning
- Ability to develop research oriented reports and documentation
- System optimization
- Thorough understanding of RF software design tools
- Isolation studies
- Representation of zoning related hearings (zoning support)
- Interaction with clients to resolve problems
- Assists Project Leader
- FCC and FAA filing reviews and system level issues
- Capable of fulfilling all aspects of an RF Engineer
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23
RF ENGINEER
Knowledge of mobile radio network engineering.
Able to make sit level design decisions.
- Able to run basic RF software design tools (ANET, CellCAD, etc..)
- RF design of base sites (design for coverage and handover objectives)
- Specify antenna and cable types
- Collect and post process drive test data
- Evaluation of best candidates
- Measurement integration
- Site visits for candidate and RF analysis
- FCC and FAA filings
- Site sweeps
- Assists Project Leader and System Engineers
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24
EXHIBIT C
SCHEDULE FIELD TEST MEASUREMENT EQUIPMENT
MAINTENANCE & SUPPORT
All LCC equipment purchased or upgraded after October 1, 1996, hereof
will receive maintenance and support services under LCC's Platinum Protection
Plan (as described below) for a period of one year from the date of shipment at
no additional charge. Nextel may extend coverage for any one or more unit(s)
under the Platinum Protection Plan after the first year or add existing
equipment to the Platinum Protection Plan at the following prices (prices are
per unit per year of coverage):
RSAT2000 iDEN w/o navigation [________]
RSAT2000 iDEN w/navigation [________]
EXP2001 (any configuration) [________]
TX1500 [________]
CM1500 SMR/AMPS [________]
The foregoing rates are subject to increase in the same manner
as the increases for software maintenance and support fees provided for under
Section 5.5(a) of this Agreement.
The Platinum Protection Plan entitles Nextel to the following
benefits: (i) LCC will use reasonable commercial efforts to repair or replace
equipment that fails to operate in accordance with its specifications within 3
days of LCC's receipt of the subject equipment at its facilities in Arlington,
Virginia, or LCC will send a comparable loaner unit to Nextel; (ii) all parts
and labor for repairs are free of charge; and (iii) LCC will provide "out of
box" failure protection, meaning that LCC will promptly (generally within 1
business day, and prior to LCC's receipt of the failed unit) ship spare unit(s)
to replace any unit(s) that fail to operate in accordance with their
specifications within 10 business days of initial installation in the field.
Units will also be entitled to free factory calibration upon request.
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25
EXHIBIT D1
Staffing Plan for October, November, and December, 1996
- 25 -
26
------------------------------------------------------------------------------------------------------------------------------------
70 Chicago 0 0 70
------------------------------------------------------------------------------------------------------------------------------------
70 Cleveland Xxx Xxxxxxx DE 2 70 Cleveland Xxx Xxxxxxx XX 0 00
Xxxxx Xx XX Xxxxx Xx XX
------------------------------------------------------------------------------------------------------------------------------------
70 Denver 0 70 Detroit 0 70
------------------------------------------------------------------------------------------------------------------------------------
72 New York Xxxxxxxx Xxxxxx DE 2 72 New York Xxxxxxxx Xxxxxx XX 0 00
Xxxxxx Xxxxxx XX Xxxxxx Xxxxxx
------------------------------------------------------------------------------------------------------------------------------------
72 Maryland/ Xxxxx Xxxxx SE 3 72 Maryland/ Xxxxx Xxxxx XX 0 00
Xxxxxxxxxxxx Xxxxx Xxxxxxxx XX Philadelphia Xxxxx Xxxxxxxx AE
Xxxxxxx Xxxxxx (MD) Xxxxxxx Xxxxxx (MD) SE
------------------------------------------------------------------------------------------------------------------------------------
71 NSC (One requested) PM 1 71 NSC (One requested) PM 1 71
------------------------------------------------------------------------------------------------------------------------------------
71 Sacramento Shiyam Sivagurunthan DE 1 71 Sacramento Shiyam Sivagurunthan DE 1 71
------------------------------------------------------------------------------------------------------------------------------------
71 Oakland Xxxxxx Xxxxxxx PM 4 71 Oakland Xxxxxx Xxxxxxx PM 3 71
Reza Okhavri PM Reza Okhavri PM
Xxxxx Xxxxxx (-20th) PM
Xxxxx Xxxxx DE Xxxxx Xxxxx DE
------------------------------------------------------------------------------------------------------------------------------------
71 Lafayette 0 71 Lafayette 0 71
------------------------------------------------------------------------------------------------------------------------------------
72 OK/Kansas 0 72 OK/Kansas 0 72
------------------------------------------------------------------------------------------------------------------------------------
72 Los Angeles Xxxxxxx Xxxxxx PM 10 72 Los Angeles Xxxxxxx Xxxxxx PM 10 72
Xxxx Xxxxxxxx SE Xxxx Xxxxxxxx SE
Xxxxxxx Xxxx DE Xxxxxxx Xxxx DE
Xxxxxx Xxxxxx SE Xxxxxx Xxxxxx SE
Xxxxxxxx Xxxxxxx SE Xxxxxxxx Xxxxxxx SE
Xxxxx Xxxxxxxx SE Xxxxx Xxxxxxxx SE
Xxxxxxx Xxxxx SE Xxxxxxx Xxxxx SE
Xxxxx Xxxxxx SE Xxxxx Xxxxxx SE
Xxxxxx Xxxxxx DE Xxxxxx Xxxxxx DE
Xxx Xxxxxxxx AE Xxx Xxxxxxxx AE
------------------------------------------------------------------------------------------------------------------------------------
72 San Xxxxx Xxxxxx Xxxxxxx PM 2 72 San Xxxxx Xxxxxx Xxxxxxx PM 2 72
Xxxxxxx Xxxxx DE Xxxxxxx Xxxxx DE
------------------------------------------------------------------------------------------------------------------------------------
71 Houston 0 71 Houston 0 71
------------------------------------------------------------------------------------------------------------------------------------
71 Dallas 5 71 Dallas 5 71
Xxxx Xxx DE Xxxx Xxx DE
Xxxx Xxxxxxxx DE Xxxx Xxxxxxxx DE
Xxxxxx Xxxx AE Xxxxxx Xxxx XX
Xxxxx Klu XX Xxxxx Klu AE
Xxxxxxxxxx Xxxxxxx DE Xxxxxxxxxx Xxxxxxx DE
------------------------------------------------------------------------------------------------------------------------------------
72 Atlanta/Gulf Xxxxxx Xxxxxxx PM 8 72 Atlanta/Gulf Xxxxxx Xxxxxxx PM 7 72
Xxxxxxx Xxxxx DE Xxxxxxx Xxxxx DE
Xxxx Xxxxxxx DE Xxxx Xxxxxxx DE
Xxxxxx Xxxxxxx DE Xxxxxx Xxxxxxx DE
Xxxxxxx Xxx SE Xxxxxxx Xxx SE
Xxxxxxx Xxxxxx AE Xxxxxxx Xxxxxx AE
Xxxx Xxxxxxxx AE Xxxx Xxxxxxxx AE
Additional for New DE Additional for New DE
Orleans Orleans
------------------------------------------------------------------------------------------------------------------------------------
72 Tampa/ Xxxxxx Xxxxx XX 0 00 Xxxxx/ Xxxxxx Xxxxx SE 3 72
Orlando Xxxx Xxx DE Orlando Xxxx Xxx DE
Xxxxxxx Xxxxx DE Xxxxxxx Xxxxx DE
------------------------------------------------------------------------------------------------------------------------------------
72 Raleigh NC Xxxxxxx Xxxxxxx XX 0 00 Xxxxxxx XX Xxxxxxx Xxxxxxx SE 2 72
Xxx Xxxxxx DE Xxx Xxxxxx DE
In market 41 In market 40
Requested 43 Requested 41
July Contract Projections 36 July Contract Projections 35
------------------------------------------------------------------------------------------------------------------------------------
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27
EXHIBIT D2
Staffing Plan for the 1st and 2nd Quarter, 1997
- 27 -
28
------------------------------------------------------------------------------------------------------------------------------------
Chicago 0 70 Chicago 0
------------------------------------------------------------------------------------------------------------------------------------
Cleveland Xxx Xxxxxxx DE 2 70 Cleveland Xxx Xxxxxxx XX 0
Xxxxx Xx XX Xxxxx Xx XX
------------------------------------------------------------------------------------------------------------------------------------
Denver 0 70 Denver 0
------------------------------------------------------------------------------------------------------------------------------------
Detroit 0 70 Detroit 0
------------------------------------------------------------------------------------------------------------------------------------
New York 0 72 New York One request t.b. made 1
------------------------------------------------------------------------------------------------------------------------------------
Maryland/ 2 72 Maryland/ 2
Philadelphia Xxxxx Xxxxxxxx AE Philadelphia Xxxxx Xxxxxxxx AE
Xxxxxxx Xxxxxx (MD) SE Xxxxxxx Xxxxxx (MD) SE
------------------------------------------------------------------------------------------------------------------------------------
NSC (One req. we'll PM 1 71 NSC or Other (One req. we'll PM 4
provide) provide)
(Three additional
requests to be made and
filed)
------------------------------------------------------------------------------------------------------------------------------------
Sacramento 0 71 Sacramento 0
------------------------------------------------------------------------------------------------------------------------------------
Oakland Xxxxxxx Xxxxxxx PM 2 71 Oakland Xxxxxxx Xxxxxxx PM 1
Raza Okhavri PM
------------------------------------------------------------------------------------------------------------------------------------
Lafayette 0 71 Lafayette 0
------------------------------------------------------------------------------------------------------------------------------------
OK/Kansas 0 72 OK/Kansas 0
------------------------------------------------------------------------------------------------------------------------------------
Los Angeles 8 72 Los Angeles 8
Xxxx Xxxxxxxx SE Xxxx Xxxxxxxx SE
Xxxxxxx Xxxx DE Xxxxxxx Xxxx DE
Xxxxxx Xxxxxx SE Xxxxxx Xxxxxx SE
Xxxxxxxx Xxxxxxx SE Xxxxxxxx Xxxxxxx SE
------------------------------------------------------------------------------------------------------------------------------------
Xxxxx Xxxxxxxx SE Xxxxx Xxxxxxxx SE
Xxxxxxx Xxxxx SE Xxxxxxx Xxxxx SE
Xxxxx Xxxxxx SE Xxxxx Xxxxxx SE
------------------------------------------------------------------------------------------------------------------------------------
Xxx Xxxxxxxx AE Xxx Xxxxxxxx AE
------------------------------------------------------------------------------------------------------------------------------------
San Diego Xxxxx x Xxxxxxx PM 2 72 San Xxxxx Xxxxxx Xxxxxxx PM 2
Xxxxxxx Xxxxx Xxxxxxx Xxxxx DE
------------------------------------------------------------------------------------------------------------------------------------
Houston 0 71 Houston 0
------------------------------------------------------------------------------------------------------------------------------------
Dallas 5 71 Dallas 5
Xxxx Xxx DE Xxxx Xxx DE
Xxxx Xxxxxxxx DE Xxxx Xxxxxxxx DE
Xxxxx Xxxx AE Xxxxx Xxxx AE
------------------------------------------------------------------------------------------------------------------------------------
Sevor Klu XX Xxxxx Klu AE
Xxxxxxxxxx Xxxxxxx DE Xxxxxxxxxx Xxxxxxx DE
------------------------------------------------------------------------------------------------------------------------------------
Atlanta/Gulf Khaled Chemimi PM 7 72 Atlanta/Gulf Khaled Chemimi PM 7
Xxxxxxx Xxxxx DE Xxxxxxx Xxxxx DE
Xxxx Xxxxxxx DE Xxxx Xxxxxxx DE
Xxxxxx Xxxxxxx DE Xxxxxx Xxxxxxx DE
Xxxxxxx Xxx SE Xxxxxxx Xxx SE
Xxxxxxx Xxxxxx AE Xxxxxxx Xxxxxx AE
Xxxx Xxxxxxxx AE Xxxx Xxxxxxxx AE
------------------------------------------------------------------------------------------------------------------------------------
Tampa/Orlando Xxxx Xxx DE 2 72 Tampa/ 2
Xxxxxxx Xxxxx DE Orlando Xxxx Xxx DE
Xxxxxxx Xxxxx DE
------------------------------------------------------------------------------------------------------------------------------------
Raleigh NC Xxx Xxxxxx XX 0 00 Xxxxxxx XX Xxx Xxxxxx DE 1
------------------------------------------------------------------------------------------------------------------------------------
In market 32 In market 35
Requested 32 Requested 35
Sept Contract Projections 30 Sept Contract Projections 30
------------------------------------------------------------------------------------------------------------------------------------
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29
EXHIBIT E
Expense Reimbursement Guidelines
1. Employees on short-term assignment (defined as employees intended to
be in a market eleven months or less):
Per Diem $90.00/day
Automobile rental $1000/month (maximum; based on actual receipts)
Six-week trips: $300/month (on average basis, based on actual receipts)
The "Per Diem" listed above is a combination of the customary expenses per diem
(allowable XXX amount for the city involved, generally $34.00/day) plus a
second portion for lodging. The expenses portion is paid only on days the
engineer spends in the Nextel market, including weekends, legal holidays and
sick days contiguous with workdays in the market; it is not paid when the
employee is on vacation. However, the lodging portion continues to be paid for
all days that the engineer is on assignment in the market, including vacation,
since the lodging is usually a monthly contract for an apartment.
This lump-sum expense does not include the costs of the flight beginning and
ending the assignment in the market, or miscellaneous job-related costs such as
photo development fees, parking and travel for site visits, etc. as have
habitually been paid; these costs will continue to be submitted on expense
reports with receipts and will be paid by Nextel.
The cost of automobiles will be billed at actual cost of rental or lease (or
under the agreed Runzheimer plan when applicable; the Runzheimer plan costs
would also include the cost of shipping the vehicle to and from the market), up
to the agreed maximums. LCC / TSI will make all efforts possible to minimize
the costs of rental cars by entering into long-term leases in cases where this
conforms to the length of commitment to TSI engineers in a market.
Finally, for those engineers who continue in a market beyond 12 months and
cannot be committed to a long-term plan, Nextel will continue to be responsible
for additional personal income tax responsibilities incurred by the employee as
a result of being in the market for more than the IRS maximum time allowed.
2. Employees on long-term assignment (intended at beginning to be 12
months or more, and agreed to with market):
If an engineer is expected to be in a market for more than one additional year,
LCC / TSI will encourage the conversion of that engineer's expenses to the
long-term expense plan, as follows:
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Monthly sum $3500.00 includes housing, per diem, trips to home
office
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Moving costs:
if already max $3250 to require actual receipts
in market market,
max. $6500 from
if new to market market
max. $6500 to require actual receipts
market,
max. $6500 from
market
Employee income tax no provision Employee is responsible for taxes himself
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Again, these costs are in addition to usual reimbursable job- related expenses,
and are also in addition to the cost of the initial and final trip to the
assignment location. However, it does not include the cost of vehicles on
site, which will again be subject to the current policies on rental, lease or
Runzheimers. It will be strongly encouraged to enter into a Runzheimer or
long- term lease for long-term employees, as the costs can be very greatly
reduced in comparison to rental costs. LCC continues to reserve the right to
charge a penalty if Nextel breaks a long-term commitment to an employee, as
described in section 4.2.5 of the previous LCC/Nextel contract.
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