Software License Agreement

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
SOFTWARE LICENSE AGREEMENT


THIS AMENDED AND RESTATED SOFTWARE LICENSE AGREEMENT (the "Agreement") is made and entered into as of October l, 1996, by and between LCC, a division of LCC International, Inc., a Delaware corporation having its principal offices at 2111 Wilson Boulevard, Suite 401, Arlington, Virginia 22201 (collectively, "LCC"), and Nextel Communications, Inc., a Delaware corporation having its principal offices at 1505 Farm Credit Drive, Suite 100, McLean, Virginia 22102 ("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 Service Agreement executed by the parties as of the date hereof (the "Services Agreement");


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 ANET Software. The term "ANET Software" shall mean LCC's proprietary ANET network planning software, release 2.0, in machine-readable, object code form only.


1.2 CellCAD Software. The term "CellCAD(TM) Software" shall mean LCC's proprietary CellCAD II network planning software, release 3.0, in machine-readable, object code form only.


1.3 CMA Software. The term "CMA Software" shall mean LCC's proprietary CMA field test measurement analysis software, in machine readable, object code form only, which is designed to operate in conjunction with the ANET Software.


1.4 CellQUEST Software. The term "CellQUEST Software" shall mean LCC's proprietary CellQUEST field test measurement analysis software in machine 2 readable, object code form only, which is designed to operate in conjunction with the CellCAD Software.


1.5 Defect. The term "Defect" shall mean any material and reproducible error, problem or defect resulting from an incorrect functioning of the Software or an incorrect or incomplete identification, statement or diagram in the Documentation, if such error, problem or defect causes the Software to fail to perform substantially in the manner specified in the Documentation (as such Documentation is in effect when such Defect first manifested itself).


1.6 Documentation. The term "Documentation" shall mean the designated LCC user manuals and instructions provided to Nextel regarding the use of the Software which, as of the date hereof, are identified on Exhibit C hereto.


1.7 Independent Contractor. The term "Independent Contractor" shall mean an independent contractor of Nextel, excluding any entity or employee of any entity that provides software in competition with LCC, which has executed a Confidentiality Agreement with LCC that is reasonably satisfactory to LCC in form and substance.


1.8 Installation Sites. The term "Installation Sites" shall mean Nextel's facilities in the Territory, where the Software will be installed and used in accordance with the provisions of this Agreement.


1.9 Nextel. For the purposes of this Agreement, except where the context expressly indicates otherwise, the term Nextel shall be deemed to include Nextel 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.


1.10 Optional Enhancement. The term "Optional Enhancement" shall mean any improvement, addition or revision to the Software that is: (i) developed by LCC, and (ii) not part of LCC's normal software release process and (iii) is not a Standard Enhancement.


1.11 Services. The term "Services" shall mean the services to be rendered by LCC to Nextel pursuant to Section 4.


1.12 Software. The term "Software" shall mean: (i) the ANET Software; (ii) the CellCAD Software; (iii) the CMA Software; (iv) the CellQUEST Software; (v) any Standard Enhancement; and (vi) any Optional Enhancement which becomes part of this Agreement in accordance with the provisions of Section 2.5.


1.13 Standard Enhancement. The term "Standard Enhancement" shall mean any improvement, addition or revision to the Software that is: (i) developed by LCC; and (ii) part of LCC's normal software release process. For the purposes of this


- 2 - 3 Agreement: (a) all future point releases (e.g., versions 2.1, 2.2, 3.0, etc.) of LCC's proprietary ANET software, and (b) all future point releases (e.g., version 3.0, 4.0, 5.0 and 6.0, etc.) of LCC's proprietary CellCAD II software, shall each be considered Standard Enhancements to the ANET Software and the CellCAD Software, respectively, and shall be delivered to Nextel when the same are available for commercial release by LCC.


1.14 Systems. The term "Systems" shall mean each digital mobile telephone system that: (i) is owned or operated by Nextel in the Territory, or (ii) Nextel may consider acquiring (including the acquisition by tender of a license to operate a system) either within the Territory or in nations outside the Territory, but only for the purpose of supporting Nextel's analysis regarding such acquisition.


1.16 Territory. The term "Territory" shall mean: (i) 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, and (ii) each additional geographical area in the world that is added to the Territory in accordance with the provisions of Section 2.10 hereof.


1.17 Trademarks. The term "Trademarks" shall mean: (i) ANET(TM), CellCAD(TM), and LCC(R), which are trademarks of LCC, (ii) LCC(R), which is a service mark of LCC, and (iii) any other trademark, service mark or logo used by LCC during the term of this Agreement with respect to all or any part of its corporate organization and/or the Software, provided that LCC generally designates the trademark, service mark or logo with an appropriate "TM" or "R" symbol in LCC's marketing or promotional materials.


2. SOFTWARE LICENSE.


2.1 License. LCC hereby grants to Nextel, and Nextel hereby accepts from LCC, a non-exclusive, non-transferable and restricted right and license to use the Software and the Documentation in accordance with the terms of this Agreement.


2.2 Terms and Restrictions. Nextel agrees to the following terms and restrictions on its use of the Software and the Documentation:


2.2.1 The Software and the Documentation shall be used: (i) solely at the Installation Sites, by Nextel and its employees and/or Independent Contractors, provided that the CMA Software and CellQUEST Software may be used anywhere in the Territory; and (ii) solely for the purpose of supporting the design and operation of the Systems. In no event shall the Software or the Documentation be used for the purpose of processing data for or otherwise supporting any cellular radiotelephone or digital mobile telephone system which is located outside the Territory or which is operated by any person other than Nextel. Nextel agrees to operate the Software only as prescribed in the Documentation.


- 3 - 4
2.2.2 The Software and the Documentation may be copied, in whole or in part, only to the extent required by Nextel to use the Software and/or the Documentation in accordance with the rights granted hereunder and for back-up or archival purposes.


2.2.3 LCC shall assure that the Software and the Documentation provided to Nextel hereunder contains such copyright and other proprietary rights notices as LCC believes to be appropriate or advisable, and Nextel shall include all such copyright and other proprietary rights notices included on the Software or the Documentation on all copies of the Software or Documentation prepared by or for Nextel. In no event shall Nextel erase or obliterate any such notices.


2.2.4 Nextel agrees that it shall not: (i) reverse engineer, disassemble, decompile, interrogate or decode the Software or any data files created by or associated with the Software; (ii) derive source code, methodologies or proprietary algorithms from the Software; or (iii) modify the Software or otherwise create any derivative work from the Software.


2.2.5 Nextel agrees and acknowledges that, as between Nextel and LCC, the Software and the Documentation are unpublished, licensed works of LCC which contain trade secrets of LCC


2.2.6 Nextel agrees that it shall not, at any time during or after the term of this Agreement, sell, assign, lease, sublicense or otherwise transfer the Software or the Documentation.


2.3 CellCAD Software. Nextel shall have the option, upon written notice to LCC, to elect to have ANET Software being used in connection with any Installation Site switched out and replaced with CellCAD Software. As soon as practicable following its receipt of Nextel's notice of conversion, LCC agrees to install the CellCAD Software at the relevant Installation Site in accordance with the provisions of Section 4.1.2(b) hereof.


2.4 Standard Enhancements. LCC shall furnish each Standard Enhancement to Nextel at no additional charge.


2.5 Optional Enhancements. LCC shall make Optional Enhancements available to Nextel as they are commercially released by LCC for such additional fees and/or charges, and upon such other terms, as may be mutually agreed upon by the parties. The mutually agreed terms upon which additional Optional Enhancements shall be delivered to Nextel shall be reflected in an amendment to this Agreement. Upon the execution of any such amendment, the Optional Enhancement covered thereby shall become a part of the Software for all purposes of this Agreement, as so amended.


- 4 - 5
2.6 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 Software license agreement in connection with the transfer of the relevant System, which separate Software license agreement shall provide for the grant by LCC of a non-exclusive license for the then remaining term of this Agreement to use any Software then installed for use with such System on substantially the same terms as set forth herein. In the event that the purchaser, transferee or assignee enters into such a separate Software license agreement, then Nextel shall be entitled to a credit against the monthly Software license fees due for any month hereunder in an amount equal to any monthly Software license fees paid by such purchaser in such month under such separate Software license agreement. Such separate Software license 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 Software license 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 as part of such sale, assignment or transfer transaction.


2.7 ANET Software Continued Support. The parties agree that, notwithstanding the commercial release of the CellCAD Software, LCC shall, at Nextel's request, provide continued support to Nextel on the operation and use of the ANET Software until the earlier of (i) the date that is six (6) months after the date on which Nextel issues a conversion request under Section 2.3 above, or (ii) December 31, 1998 (the "Support Period"). It is, however, LCC's intention to do minimal development of the ANET Software. Instead, LCC will concentrate on developing the CellCAD Software with the expectation that most clients will want the increased capabilities of the CellCAD Software in the future.


2.8 WinMerge Software. LCC hereby grants to Nextel, and Nextel hereby accepts from LCC, a non-exclusive, non-transferable and restricted right and license to use LCC's proprietary "WinMerge" software, in machine-readable, object code form only, in accordance with the terms of this Agreement, which shall be considered a part of the Software and included in the software license fees paid by Nextel for all purposes of this Agreement except: (i) the WinMerge software shall be provided on an "AS IS" basis without any representation or warranty of any kind or nature, and (ii) LCC shall have no obligation whatsoever to support, enhance, improve, or correct any defect relating to the WinMerge software. Accordingly, the provisions of Section 4.1, Section 7.1, and Section 8 of this Agreement shall not apply to Nextel's use or possession of the WinMerge software. LCC HEREBY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES OF WHATEVER KIND


- 5 - 6 OR NATURE, EXPRESS OR IMPLIED, RELATING TO THE WinMerge SOFTWARE INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, AND ANY WARRANTIES OF NON-INFRINGEMENT.


2.9 Additional CellCAD Software Features. LCC agrees to devote the resources of at least one (1) software developer to developing additional Software features and/or functionality for Nextel including, without limitation, the features for CellCAD, version 5, and CellCAD II, version 6, generally described in Exhibit A attached hereto and such other features and functionality as Nextel may periodically designate in writing to LCC. LCC may, however, devote additional resources to such development with the intention of releasing CellCAD II, version 5 in the second calendar quarter of 1997, and CellCAD II, version 6 in the third calendar quarter of 1997. The parties acknowledge and agree that the feature and/or function descriptions set forth in Exhibit A attached hereto are intended only as a general description of the features and functionality currently under consideration for the CellCAD Software, and are subject to further review, change and revision by LCC as its development efforts progress. Accordingly, the parties agree to use their best efforts to work together in a timely manner to develop mutually acceptable and detailed requirements documents and software specifications. The parties further agree that the devoted software developer provided for above is intended to address further developments and revisions of the Software to produce features and functionality specifically requested by Nextel and Nextel shall be entitled to the dedication of such software developer's time and services for such objectives during the term of this Agreement without payment of any additional license fees and maintenance and support fees under Sections 5.1 and 5.2.


2.10 Expansion of the Territory. Nextel shall have the option, at anytime during the term of this Agreement, to expand the Territory subject to the terms of this Section 2.10. In the event Nextel desires to expand the Territory, then: (i) Nextel shall provide LCC with thirty (30) days prior written notice setting forth the name(s) of any additional nations to be added to the Territory and the date that Nextel first expects to use the Software in or for that nation, (ii) the monthly software license fee set forth in Exhibit B, Section 1 hereto shall be increased, effective on the first day of the month in which the expansion becomes effective, by an amount equal to [___________] times the number of computer video display terminals ("Workstations") used by Nextel in such additional nation(s) during the month prior to each monthly payment, and (iii) the monthly Support and Maintenance Fees set forth in Exhibit B, Section 2 shall be increased, effective as set forth above, by an amount equal to [______] times the number of Workstations over which either the CellCAD Software or the ANET Software is used by Nextel in such additional nation(s) during the month prior to said monthly payment.


- 6 - 7
2.11 Export Control Compliance. Nothing in this Agreement (including, without limitation, the provisions of Section 2.10 above) shall require or permit LCC or Nextel to do any act inconsistent with the requirements of (i) the regulations of the United States Department of Commerce, (ii) the foreign assets controls or foreign transactions regulations of the United States Treasury Department, or (iii) any similar law, rule, regulation or executive order of the United States as they may be in effect from time to time. To enable LCC to provide technical data to Nextel, Nextel hereby warrants and agrees not to export, re-export or otherwise disclose, directly or indirectly, and Software, Documentation or other "technical data" received from LCC, nor allow the direct product thereof to be exported or re-exported, directly or indirectly, to any prescribed or prohibited destination unless permitted by U.S. law at the time of export. Nextel's obligations under this Section 2.11 shall survive the termination, expiration or cancellation of this Agreement.


2.12 Software; Exclusivity.


2.12.1 Exclusivity. During the term of this Agreement and in the Territory, Nextel hereby agrees to use LCC as Nextel's exclusive provider of network propagation modeling software, of the type offered by LCC, and further agrees Nextel shall not purchase, license or acquire any such software product(s) from any person, corporation, partnership, company or other entity other than LCC provided, however, that nothing herein shall impair Nextel's rights under section 2.12.3 hereof.


2.12.2 Quarterly Requests: Annual Review. The parties agree to meet on an annual basis, on or about July 1 of each year during the term hereof, to review and discuss LCC's development plans with respect to the CellCAD Software. Nextel shall have the right, at anytime within the five (5) business day period immediately following July 1, 1997 and the first day of each calendar quarter thereafter, to deliver a written request to LCC specifying any one or more specific features for incorporation in the CellCAD Software that: (i) is then-available from LCC's competitors in the marketplace, (ii) if incorporated in the CellCAD Software, would significantly enhance the utility, efficiency or reliability of the software, and is material to the conduct, cost or competitive advantage of or associated with Nextel's business ("Major Feature Request"). Nextel's Major Feature Request shall set forth: (i) a detailed description of the feature requested, (ii) an explanation of the enhanced utility efficiencies or reliability that Nextel desires to achieve with the feature(s), and (iii) the price and terms on which Nextel could obtain software incorporating such requested feature(s) and the increased software license fees and/or maintenance and support fees that Nextel reasonably believes LCC would be able to charge Nextel and other customers for the enhanced features and/or functionality based upon market rates. Within thirty (30) days after LCC's receipt of any Major Feature Request, the parties shall meet to negotiate and agree upon, in good faith: (i) detailed design specifications and requirements documents for the


- 7 - 8 requested features, and (ii) any additional software license and/or software maintenance and support fees that Nextel will be obligated to pay to LCC for the enhanced features or functionality. In the event that the parties are unable to reach agreement on such matters before the expiration of such thirty (30) day period, then (i) the specifications and requirements documents and (ii) pricing for the enhancements shall be submitted to and determined by expedited arbitration pursuant to Section 13.13 below; provided that Nextel may withdraw any Major Feature Request by delivering written notice to that effect to LCC not later than five (5) business days after Nextel's receipt of the arbitrator's final written decision.


2.12.3 Termination. In the event that LCC fails to develop and implement any Major Feature Request within six (6) months after the later of: (i) the date the parties agree upon the pricing and detailed design specifications and requirements documents for the requested feature(s), or (ii) the date the pricing is determined by expedited arbitration pursuant to Section 12.2.2 above (the "Commencement Date"), then Nextel shall have the option to terminate, upon written notice to LCC provided at anytime within ten (10) business days after the date that is six (6) months after the Commencement Date, the exclusivity provisions of Section 2.12.1 hereof. In the event that LCC fails to implement any Major Feature Request within twelve (12) months after the Commencement Date, Nextel shall have the option, upon written notice to LCC provided at anytime within ninety (90) days after the date that is twelve (12) months after the Commencement Date, to terminate this Agreement effective thirty (30) days after the date of ...